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Les diagrammes suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 SUNDRY RESOLUTIONS BOARD OF COMMISSIONERS ,, J For carrying into Effed the ^"^ 4 '^'^ SIXTH ARTICLE of The TREATY of AMITY, COMMERCE, and NAVIGATION, CONCLUDED BETWEEN HIS BRITANNIC MAJESTY AND THE ,„!»■ ;%• UNITED STATES of AMERICA. ■ .,.. .> ' 'u • > Publifhed for the Information of the Claimants under the said Article ... BY THE GENERAL AGENT for CLAIMANTS, S/'-—^ # -0)0oo<0)0e< ^ rniLADELPHIAt PRINTED BY JAMES HUMPHREYS, 1798. • ■■rir''^illttr_iriiM I »-*-' — h - ..«*. ■■-, ~.y>.»>.-.r.-***^'*f;*^''»- -*-■—>-■- - •v._ .%*.iteat, ■*<■■ » ' . \i .1 ,' I I H \> , ! T! .- ■'•>;'. i > f 1 . .-^J ..*■; mn^ HH^^^'^^NHH^ w^ SUNDRY RESOLUTIONS, 8cc. OFFICE of the COMMISSIONERS under the Sixth Article of the Treaty ef Amity, l^cwitk Great-Britain, ORDERED, That in every cafe, oa the prefentraent of a claim by an Agent, a power of attorney ihall either be produced at the time of prefenting the claim, or pending the confideration thereof, and that notice be given to the Agent according- ly, in order that luch power of attorney, if not then produced, may be procured as foon as poffible. Ordered, That the General Agent for claimants, and the Agent for the United States, be informed, that in all cafes where claimants can produce evidence refpeft- ing the folvency of their debtors during the operation of the lawful impediments complained of, the Board will expe(^ to have fuch evidence ftated and laid before ihcm, without prejudice however to the right of the claimants to maintain, that it is not incumbent on them to prove fuch folvency. Ordered, That all applications for the examination of witnefles, fliall be lodged with the fecretary in writing, figned by the Agent of the party by whom they are to be adduced ; and fliall ftate not only the names of the witnefles, but the points cenerally on which they are to be examined ; and that a copy of fuch application Ihall at the fame time, be delivered to the Agent for the oppofite party. Re/olvcd, That h6 claim or complaint fhall be tcnfidered as barred by the limita- tion of time in the treaty, if a memorial containing the full demand has been duly prefented to the Board within the time thereby prefcribed, although fuch proceed- ings at law as may from the ciicumftances of the cafe be neceffary for the purpoft of obtaining evidence in fupport of the fame, or any part thereof, have not been com- pleated within the time fo limited ; but that all poflible difpatch and diligence in commencing and ccmplcaii ig fuch proceedings will in every cafe be cxpefted by the Board. Refohedt > RefoheJ, That till the anfwer to a claim has been put in, and laid before tlie Board, railing a queftion of faft between the parties, no application can in com- mon courfe, or. without, very fpecialrc.afone,. be received, forjeave to examine wit- nefles againft fuch claims. ' > Ordered, That all applications out of the ordinary courfe of proceeding before the Board, fliall ftate fpecially the^rounds on which they are made, and meant to befupported; and when the urgency of circumHances render| it neccffary tomake any fuch application between the fittings of the Board, that a copy thereof be forthwith fent to ea«h Commiflioner, as well as to the Agent for the adverfe party. ■Ordered., That the General Agent for claimants, and Agent for the United Stai*;-,, refpetiively furnifti the Conuniffioners with copies of all papers laid before the Board, whether averments for evidence, or other reprefentations, or llatements contain- ing incidental objeftions, or queftions for their confideration. . ■.:■.■ r.\'.' ' : ■ - ':' .< ' : ''.Ac Re/ol-ved, That the Board will receive fuch evidence only, to prove the debts which are the fubjefts of claim before them, as would have been competent and admiffible to prove the fame, immediately previous to the operation of lawful impediments in the courts of the States where the debtors at that time refided ; unlefs upon fpecial caufe firrt ftiewn, and an order of the Board for the admiflion of evidence of any other defcription. ■...,■ . : '. - . , •• Note. The foregoing Refolutions and Orders of the Board are of different dates. They have been communicated as extenfively as was in the General Agent's pow- er, from a knowledge of, or correfpondence with, the few fpecial agents and at- tornies in hSt of the claimants who had come forward previous to the orders and refolutions. He thinks it neceffary now, to make the information as extenfive as is in his power, and to fend the above, with every other material refolution or order, to every individual agent or attorney in faft for Britifh clairnants, with whom he has corre^onded> or with whom he has had any communication. [ 5 3 f. '.-1. i( T ,. . iv. ?i. ■ Office o/ /i>^ Commissioners unJer the jc ^^ -'^'^ '^-'^ ''-'^^.^ Dfcrmitf i8. 1798, ' '.-■ "r\:.'.' .r 7 .'?••!. i! :r ' . .'Vid C.J .U. - vJi .K'.d. . (; ■ .-v Present, Mr. MACDONALD. Mr. rich. Mr. FITZSIMONS. Mr. SITGREAVES. Mr. GUILLEMARD. • > :.; ) J .■ ; ( (V i'\'****'f' >• ..,.,v I'l -'it J ! ii., . )i . ,1 :.;,. ,.1. In tKe Cafe pf Cunningham & Cov Hi; ■i/i- THE refolution moved by a "member of the Board on the twenly-thirdday of Oftobcr laft, on the queftion of interejl during the war, which, with other genera? queftlonsof interpretation, was in the anfwer of the United Staves, fpecially raifed and fubmitted, oii full argumeht, for the determination of the Board in this parti- cular cafe, as inirolving " many important principles neceffary to be decided," (which anfwer it appears from the letter annexed to, and printed therewith, was drawn up by the Attorney General of the United States, as a leading argument to be referred to in fimilar cafes, and to which reference lias accordingly been made) having been again rtoved, the nlattei' was this day fully difcufled, and the rcfolutioa paffe J as follows : — THE BOARD Slaving Cotifidered the argument of both parties on the claim of intereft during the war, which is oppofed on the following general grounds and prin- ciples, as Hated in the anfwer of the United States, viz. The rujes of. conftruftion eftabliflied by the law of nations for the interpretation of '» obfcUre or atnbig\ious pads :" — . , . , ., ^ The meaning of the word " deh/s^' in ihe fourth article of the treaty of peace as not comprehending intereft, becaufe intereft is recoverable at law in the technical form of damages, for the detention of the debt ; " being what is given more than the •« principal, that the creditor may not be a lofer :"— The inference to be drawn from the demand of a dedoftion of intereft durinc; the war, which had been made on the part of the United States in the courfe of the negociation previous to the formation of the faid article, and from a converfation fabfequent to the treaty, viz, in the year 1786, between the Britifti fecretary of Hate for foreign affairs, and the American nlinifter at London ; in which the latter fuggefted " the policy of giving up the intereft during the war, and of agreeing to " a plan of payment by inftalments ;" and the former, after " feme lllght ex- " preffions concerning the intereft, wiftied that the courts were opened for recover- " ing the principal," and obferved " that the intereft might be left for an after •' confideration :" — I :->«.^' C 6 ] The nature anJ caufes of the war; in the courfc of which •• the produAs of the " Uiiul wire indifpenfably neoeffary lor defence> Kgsiinft that which, on the fide of " the AmericAns, was a war for life, liberty anS property: A war pro aris et " focis ;" attended with circumftanccs of fuch dcfolatlon (as defcribed in the print- ed anfwer) that-after the application of what wa-: thus ncceffary for defence, •' there " was nothing left to an individual for paying intereil on his debt :"— «' The interdiftion of commerce to the United States by the Briti(h Parliament,** and ftoppage of " intercourfe and apccfs between the Amcricati debtors and Britidj •• creditors," by which " the detention of the debt during the war was unavoid- " able:"- ,. . ,,-::;? r, The departure of creditors, and their fafters, from the State, fo that no pcrfon remained in the country to receive payment of the debt : — The analogy between the prefent cafe, and that quoted from Viner's abridgment, in which it is (lated, " that where by a general and national calamity, nothing is " made out of lands which arc affigned for the payment of intereft, it ought not *• to run on during the time , of fuch calamity :" — The authority of writers on the law of nations, who fupport the general pofition, (which as fuch has beer> ftated, and not difputcd on the part of the United States) viz •« that debts due to private pctfons before a war, mall be paid after the war ; and with intcrcft during the war, if fuch was the contrail, either tacit or ex- prefs :" — But who alfo lay it down, that " if nothing elfe be agreed upon, yet this ii to b2 fuppofcJ in every p?ace, that no aflion fliall be commenced for da- mages done in war, which is alfo to be underftood of tbofe done to private perfons r thcie being alfo the effef^s of war :" — The equity, as between creditor and debtor, of denying intcred daring the war, ivhereby " the creditor and debtor will be put upon a more equal footing; and a " lofs will not be incurred by the debtor, for the fake of a gain to the creditor :" — The evidence of fuch equity, arifing from " the prafticc of the courts and juries " in difallowing intereii during the war, generally, throughout the United States ;" fuch being ftated to have been, and to be " the pradice of the courts" (and of jurie? " in all cafes that were " under the power of their verdifts") of Neiu-fori, Ntrx'- " "Jerfiy, Pennfylijanta, Dilatuare, Maryland, Virginia, and South-Carolina; in " iome of which States the claims (it is faid) of Britifh debts were fo inconfiderable, ••^ and fo few, as not to have occafioned public concern,, or to have excited any " prejudices :" — The evidence of fuch equity, in particular, arifing from the judgment and opi- nions delivered by the judges of one of the State courts of Virginia againll the allow- ance of fuch intereft, in the cafe of M'Call againjl Tumtr, decided in 1796 ; On which occafion it was ftated from the bench (as appears from the report of tie cafe in the appendix to the anfwer) that on comparing " the condoft of the •• two nations" daring the war, " the comparifon was evidently in favour of Ame- " rica ;" that of Great Britain amounting to fo many deflections from the modern " rules of warfare, which did not entitle the creditors even to the principal debts " themfelves, had they not been ftipulated for by the treaty of peace;" a ftipula- tion which •• although it was unjuft and inconvenient in one refpcft, yet as the " other -.a •[ 7 J " other pftru weie eilcenicd beneficial, it was righc to accept, An the lake of the " general advantage) ic contained ;"— And the further evidence of iuch equity arifins from the ge..c-al irnprelHon ia Amvica durirvg the war, that " in a cnnteft (m that k,ind, if fuccdsful>" lew would be " re(|'iired at a future day topay fuchiijtereft.Vi/.ii i. j.a .•.„,.... Rt/ohtJ, That the defcriptton contained in the fourth article of the treaty of peace, of the nature and extent of the right and property ihereby fecured agaiiill the operation of lawful impediments, vlt. " x\it full valut in (lerling money of all " bona fide oV^//, theretofore contracted," is a deicription in terms which arc clear and explicit ; and therefore, the authorities which have been referred to on the con Arut^ion of " obfcurc or ambiguous pads," bear no application to the prefent quef- tion :•— That the full 'ualiie of a bona fide debt mad mean the full amount of thi ohli- gallon, with all its incidentr,, according to the contrad : — That interelt has been rightly defined on the part of the United States, to be a fixed and fettled compen- fation for the damages fuftained by the creditor through the detention or delay of payment of the original debt, " '.hat he may not be a lofer }" and in law as well as in equity, fuch compenfatiua is conflJered as a growing increafe of the debt it- felf; the form, in certain cafes of tecovcring or awarding fuch increafe ai dtbt in courts of law, by the name oi Jamagts, leading to no fubllantial difliu£lion, incon- fitlent with the known and long eilablilhed nature of tlie riglit, and that common ac- ceptation of language by which alone the treaty muH be conllrued : — For the firgu- ment which has been laid before the Board, from the letter of Mr. Jeffirfcn to Mr. Hammond, previous to the treaty of amity, referred to in the anfwer to the claim, is an elaborate mil'application of authorities on the technical diAindlions ami reflri(flive language of form in courts of law, which the framers pf the. treaty cannot be prefumed to have known, and never meant to apply :— That i^". ffpm t{>c denomination of damages, as applied to intereA in courts of law, the cpnclufion could be drawn, that inttrtft •was not dtbt, and therefore not ivuhin tt^ meaning rf the treaty fuch conclufion would afFefl the claim of intereft in time of peace, as well as daring the war, and therefore reach too far for the argument, which admits that interefl accruing ia time of peace is due according to the contra^ : — That if any reafonable ground of doubt remained, it would be removed by certain fa£ls, as ftated on the part of the United States, and from which a contrary infei^ence has been drawn, viz. the demand, vn the courfe of the negociation previeas tp the treaty, of a deduction of interell during the war; the filenceof the article on that head ; ttte fubfequent fuggeflion by the Anierican mitvifter in the year 1786, of" tJie •' policy of giving up" fpch interell, thereby admitting, as matter of necelT^y im- plication, that the paynicnl of the interell to be thns •' given up," had. been pne- vioufly flipulated and fecured ; and the anfwer made by the firitifh Secretary cf State to the fuggeflion of thus " giving up" the faid intereft on principles of policy,, viz. " that it might be left for an after confideration ;" with the faCl tb?t it never was on after confideration given up, but on the contrary, by the flxth article of the treaty of amity, which adopts the fame general term " debit," as defcrlptive of the iubje£l matter thereof, " the commiilioners are empowered and required, in pur- " fuance of the true intent and meaning of the faid article, to take into their confi- " deration all claims, ivhether of principal ar interefi, or balances of principal and. " intereft" (without any alluAon whatever to a diftindlion between the cafe of in- tereft during the war, and intereft in time of peace) " and to determine the fame " refpeftively, according to the merits of the feveral cafes \ due regard being had to ♦' all the circumjianus thereof, and as equity and joiftice Ihall appear to them to " require •." — ■p 1,1 [ « 1 *' require :''— That the Board are thus empowered by the treaty of amity to award interell during the war; but it is rightly maintained on the part of the United States, that no award can be made under the treaty of amity, which is not founded «n a rif ht fccured by the treaty of peace ; therefore, an award of intereft during the war will be founded on^ right fecorcd by the treaty of peace :^From all which it follows, not only that th: general term " Jeits" in the fourth artick of the treaty of peace, comprehends the ivbole intcrcrt, as well as thi nvAo/e principal ; and that the Board arc, by the treaty of amity, required to take the fame into their confideration ; but alfo, that they are bound to decide '< according to the " merits and circumdances of the /e-veral rrt/e/," upon fuch principles as (with re- ■fv.Tence to the faid merits and circuniftances of each particular cafe) fliall appear to them to be jull and equitable : — No^'is any diflinftion to be found in any of the treii- lies between that part of the claim which is compofcd of intereft and that whicli is fompcfcd of principal, the Board having no greater power of decifion over the one than ofer the other : — That it is not alleugcd, nor does it appear, that any fpeciai bar or ground of objeftion againft interelt during the war, arifes out of the nature nr terms of the contratts, or otner particular merits or circumftances of this cafe ; neither is there any general ground on which the cafe can be confidered as forming an exception to the pofition arifing out of the law of nations and before recited (as ftated and re- '♦trred to 6n the part of the United States) viz. " that debts due to private perfons "before a war, Ihall be paid after the war ; and with intereft during the w{.r, if " fuch was the contraft (ither tadt or exprefs." For every inference which can be drawn from the particular nature of the war, as diftinft from that " of ordinary " wars between independent nations," is in favour of the original contract between the parties, and gives ftrength and application, a fortiori, to the found policy of juftice, which preierves, unimpaired by national hoftility, the full eifefl, and inte- grity of good faith in private tranfa£lion : — But on this head, the fentiments of the Board carmot be better exprefled than in the words of a learned Judge (Patterfon) who] in delivering his opinion in the Suprerte Court of the United States on the 7th day of February, 1796, in the cafe of Jones v, Hylton, expreflbd himfelf at follows: — " I feel no hefjiation in declaring, that it has always appeared to me to "be incompatible with the principles of juftice and policy, that contracts entered " into by individuals of different nations ftiould be violated by their refpeflive go- " vernments, in confequence of national quarrels and hoftilities — 'National differences ♦' Jhould not affeSi private bargains. The confidence, both of an individual and na- '"*•' tional nature, on which the contrails were founded, ought to be preferved invio- ■" late. Is not this the language of honefty and honor ? Does not the fcntiment cdr- -*• rcfppnd with the fentiments of juftice and the dilates of the moral fenfe ? Infliort, *' is it not the-refult of rieht reafoh and natural equity? The relation which the *' parties ftood in to each other at the time of contracting thefe debts, ought not to ♦' pafs without notice. The debts were contracted when the creditors and debtors •* were fubjefts of the fame King, and children of the fame family. They were " made under the fanftion of laws common to, and binding on both. A revalu- '•' tionary nvar could not like other luars be fbrefeen or calculated upon : — The thing '■** was improbable : — No one at the time the debts were contrafted had any idea '* of a- feverance or difmembtrment of the empire, by which perfons who h«td *' been united under one fyftem of civil polity ftiould be torn afunder, and become ■ •' enemies for a time, and perhaps aliens forever. Contracts entered into in fuch «* a ftate of things ought to be facredly regarded : — Inviolability feems to be at- "■ tached to them:" — " The conftrudtion of a treaty made in favour of fuch cre- " ditors, and for the reftoration and enforcement of prc-exifting contrails, ought *' -to be liberal and benign : — For thefe reafons this claufc in the treaty deftrves the " utmoft [ J ■" utmtfl latiittJe tf ex/ioJitioH :^'-^'T\i*.t independent of the iirclcvancy dt' tlic fafl, \n a quefti&a of private right fccured to creditors by treaty and the law of nations, ^he prevention of rcmittan''es to Great Britain, and " detention of debts during the " w«r," ought not to have been afcribcd to the " interdiction of commerce to the *' United Statej by the Britilh Parliament ;*'—For by virtue of a itfolution of Con- ^refi, which toolc place on the loth day of September, 177;, and \vh;ch was ilated and recognized by the Supri.x Court of Pennfylvania in deciding the cafe of Heart againjl Allin, the exportation of all merchandize and commoditirs whatfoever to Great Britain, Ireland, or the Weil Indies, wai prohibited ; the faid refolu- ^lon rendering it afterwards (as laid down by the court in that cafe) *' unlawful *' to make remittances to Great Britain:" And on the zoth day of Oflober, 1777, an a£t of Aflembly was pafled by the State of Virginia, r/hereby authcrrity was given, and an invitation held forth to the aebtors of Britifli creditors, to pay their debts into the Loan Office of the State ; (and fuch payments were afterwards accordingly mado in depreciated paper money, at the nominal value, to a great amount;) the preamble of which aft of Aflembly dates a motive for the law in the following terms ; " But the fafety of the United States demands, and tiie law " and ufages of nations will juftify, that , to depart this Commonixjcahh " ix'ith their goods within forty days from the date hereof, except fuch of the faid " natives as have heretofore uniformly manifefted a friendly difpofition to the " American caufe, or are attached to this country by having wives or children '♦ here, agreeable to a refolution of the General Aflembly in that cafe msde ;" in confequence of which proclamation many perfons of the defcription therein men- tioned did of courfe depart : — That as all coercive meafures for recovering payment of Britifli debts were of courfe fufpended during the war, fo voluntary payments were thus prevented by laws or public a£ls of the State, prohibiting remittances to Britifli creditors who were not within the State, and compelling thofe who were within the State to depart : — And it cannot be juil, that laws ftiould firft be pafled, making remittances unlawful, and driving creditors and their agents from the State ; and then intc-eft withheld, becaufe remittances were unlawful, and creditor . and their aigents abfent : — That if it could be maintained, that laws which were avowedly made to detain the money in the country, for the double purpofc of weak- ening the enemy by withholding their property during the war, and ot fecunng the ufe of it for the public fervice, had the elFeft to deprive the creditor of his right to demand payment of interefl as well as principal on the return of peace, fuch Ir.ws, fo operating againft the recovery of the full value of bona fiJj debts, would of courfe come within thie defcription of lawful impediments, entitling the creditor, under the treaty of amity, to compenfation for the lofs thereby fuflained ; — Bin from the fafts which have bf sn fet forth on the part of the United States, tlicre is at leafl no room for any general prefumption, that if the courfe of rrmittarrce had been free, remittance would have been made ; or if Britifli cred'.ccrs and faftors C had *.«,**l>-~-* ^h [ lO 1 had remained in the State, payments would hav« been received : — Foritisftated in the jinAvcr, that " all the produdb of the land were indifpenfabiy n^ceffary " for tleJcuce, and nothing was left to an individual for paying intcr«ft on his " debt i" iVom whicii it alio follows, that nothing can be more retAotii- from ftU re- fcmblnnce to the prcfcnt cafe, than that extender and rtfujkl ix law, to Which it has been afiitnilatcd in the letter from Mr. "Jcfferjon before- mentioned ; the very eAentfc of tender and refufal confiftiiig in the adual offer of the mone^, and its b^ing ol'njays ready to l)e paid : — ^That as the means which might otherwifc have been ap- plied towards payment of BritiOi debts, ivere thus expended in fapport of the war with Great Britain, it is of no importance to the conclufion, whether that war was " on the fuic of America" maintaijied under ihe circumAance: which have beCrt dcfcfibetl, ilnd merely "for defenct" again ft hoftile aggreffion ; or for the attaiiiP ment of great and valuable public objeds :— For Britilh creditors were indivi- dually on the return of peace as little refpcaifible in theoiiccaife, as entitled to or pofleflcd of any participation of benefit from the event .n the other :— That all arguments againll the juft rights of individuals derived from th.; nature and caufes of the war, or reflexions on the manner in which it was condu£led on the one fide or on the other, are befides, as inconfifient with the elbiblifhed prin- ciples of the law of nations, as repugnant to the fpirit of that difcuflion which ought to take place in the execution of a treaty of amity •.—^ArA fo far only will the Board animadvert on the publication of charges againfl Great Britain refpefting the nature and condu^ of the war. as dated in the printed anfwer in this cafe, and documents thereto annexed, in terms of detcription whiiK little accord with the bufinefs of conciliation and peace:— •That the general pofition in favour of debts due to private perfons before a war, as being recoverable on the return of peace> with intereft according to the contract, ha^ been fiated and admitted on, the part of the United States ; and in addition thereto the following paiTagc has been quoted Ircm Vattel, viz. " if nothing elfe he agreed vpoa, yet this is to be ftippofed, that " no aftion (liall be commenced for damages done in war, which alfo is to be un- " derflood of thofc done to private perfons, ihefe being alfo the cffiiiSs of war :" — But if this latter pofition had reference as has been argued, to the cafe of interell, it would be direftly inconfiftent with the former; befides being precluded, in its application to the prefentcafe, by the condition it contains; for here there is an ex- prcfi agreement by treaty to the contrary ; and as damage done in war to the pro- perty or efFeiti of individuals is not the fubjeft of an aSion on the return of peace, ^b it cannot in jufticc be the ground of objeftion or defence againft an aftion for .ccovery on an antecedent right : — That the cafe which has been put and relied on, M l^ated in t!ie faii letter from Mr. Jefferfm, of intcreft feperatcly feeured by an irJJigKincnt cf land^, of" a general and national calamity" by which " nothing is *' made cut of the Lvids" fo afEgned, and of tlie ftoppageof the currency of fuch iutcrcil during fach calamity, bears no analogy whatever to the prfefcnt cale:— For, without enquiring how far the nature of " the general andnational calamity" con- fe^iplatcd in the cafe referred to, fupports the com pari fon ; o/ refiing upon the faft, ihstia this cafe payment wjs not withheld from a failure of means, but from the .".ppUcation of th }fe means on the part of the debtor to other purpofcs, it is infficient ih.u here there is no fuch aflignment of lands, or fpecific appropriation anJ accept- ance of a particular fecurity or fund of payment; but a fimple, abfolute, and un- qualified obligation by the debtor, that the debt, principal and interelt. Without dillindlion, fhall be paid, which nothing Ihort of performance or the credirors vo- iu'.uary acquittance can either abridge or releafe : — That the true nature o\ intcreft cannot be better defcribcd than in the words of Mr. fufiict Shippen in the cafe of Petit againji Wallls, as follows, viz. " In fliort, the jf. 5,000 paid with interett at % [ n 3 " at tbii day is not, in fidot liw, more than (be £.^, the " creditor ;" fix according to the c«>iDpeadioos delcripiion Qf the natuce of inte- rcik which hat juft been referred tu, %nd> the de&nition alpeady A.ited» as tnaintained with m\id^ argument, and on. many autitorities, on the (>art ot the United States^ intereft is not gain, but coo»pe«iation to prevent Ms ; fo that the denial of iatereft wotild be gain to the debtor, and lois to the creditor ; with aa increafe in propor- tion to the additional value ofaioney during ';he war:— That therefore if the Board were ta,'deparc from. their 4uty, in the impra£licable attempt fuggefted in the anfwer, of placing debtor and creditor " upon an equal feettng," by eilinuting conjedkural loiTes and balanctag inequalities in their refpedivefituatiamSfadvanuges, or fnfierings, du- ring the war, the fettled rate of intereft ought be found ki many inliances to fall ver/ far i^ort of the loiTes, immediate or remote, fuAained by the creditor through the de- tention of his debt, at a time when payment was moft wanted , while the gain of the debtor, in the application or ul'e of the money or property fo withheld, might far exceed the amount of iiuereft for which he was liable : — ^That as many individual inhabitants of the Unucd States were; doubtlefs, reducfi to aftatcof infolvency jy the war, fo it is matter of equal notoriety, that many Britiftj merchants, and other fubjefts of his Britannic Majelty, were driven to bankruptcy and ruin through the lols of trade, non payment of debt, and other circumftances arifing from the fame common ca- lamity ; but it does not appear, nor has it bcca alledged, that any fuch claim of exemption from intereft during the war has cv.r on that account been attempted or fet up, or could be maintained in any of his (aid Majelly's donunions by any fuch Britilh debtor, however unfortunate, or however clearly his lofies might be dedu- ced from the fame caufe y/Mch bat |3£fij> heid a fufEcIenr grou.'vd for fuch exemp- tion in favour of American debtors; fo that /^^ principle applied by the learned Judge, and on the occafion firfl: above-mentioned, to the cafe of 6riti(h creditors whofe debts had been paid into the State treafury, is equally applicable to the prefent queftion, and was ftated by the fatd learned Judge in the fdlowing terms, " The conftrudion on tlie part of the defendants cxcUida mutuality , The debts due " from Diitifh fubjedls to American citizens were not confifcated or fcqueftered, or " drawn into the public coffers. They were left untouched. Now if all the " Britidi debtors be compelled to pay their American creditors, and a partenljr *• of the American debtors be compelled to pay th^ir Britilh creditors, there will " not be that mutuality in the thing which its nature and juftice requires. The " rule in fuch cafe (hojld work both ways; whereas the other conftruftion creates •' mutuality and proceeds upon indifcriminaiing principles. The former conllruc- " tion does violence to the letter and fpirit of the inftrument ; the latter flows •' eafily and natur.ally out of it :" — And fo it may be Giid, tl-at if debtors in Great Britain to American creditor* may be CPiapeiled Oo pay {heir/^ cjebts, intereft as v.c!l as principal, and debtors in America to Britilh creditors can only be com- pelled to pay a part of their debts, viz. principal and part of the intereft, ^lie conftruftion "excludes mutuality" in the execution of the article, and "does " violence to the letter and fpirit of the inftrument:" — That the alledged equity of lie. .iig intereft during the war, derives no fupport from th expeftation wlich it 1? faid prevailed during the war on the part of debtors in America, that " if the *' event proved fuccefil'ul" they would be thereby fo far relieved from the payment <- f their debts ; for the fame exjpeftation may have prevailed to the full exteat of the '■Mhok debt due to fubjefts ef Grr^ Britain, principal as well as intereft :r— Nor can any fuch equity be fupported on the verdiQs and decifions of courts .ngainft fuch . ,, . intereft"; I '1 [ tz ] intereft ; whether they have been given in thofe particular States in which it is alledged " the claims of Britiih debt^ were fo inconsiderable and fo few as not to •• have occafioned public concern, or to have excited any prejudices ;" or in States where the claims of Britifli debts were fo confiderable and fo many as to occaiion " public concsrn" and " excite prejudices :"— For fuch verdiAs and decifions againft any part of the ftipalated or fettled intereft of juft debts, are themfelves the fubje£l of complaint before this Board, as lawful impediments to the full recovery of fuch debts ; on the exigence and juAice of which the Board are bound and autho- rized exclufively to decide :— That therefore no fufficient caufe has been (hewn, why in awarding full and adequate compenfation for fuch debts as may' be proved, within the intent and meaning of the treaties^ fuU intereft (hould tiot be awarded for the detention and delay of payment during the war, as weU as in time of peace ; but on the contrary, for the above reafons, and others which might be dated, it is juft that fuch intereft fliould be awarded, according to the nature and import, exprefs or implied, of the feveral contrails on which the claim is founded. Mr. SiTGREAVES dtflented from the above refolution. ..'sr, .. Mr. FiTzsiMONs alfo diffented. .r .. .. •, ■>,. ':■.. ' ••; PHILADELPHIA, December 19. 1798. In the Cafe of Cunningham & Co. Mr. SiTGREAVES dcfired to enter his difTent from the refolution in this cafe paired at the laft meeting, for reafons, ftated in a minute which he prefented and read before the Board. Mr. FiTzsiMONs ftated th^iit he would prepare a minute containing his reafon* (^ainft next meeting. PHILADELPHIA, December 21, 1798. In the Cafe of Cvinningham & Co. The minute of diffent of Mr. Sitgreaves read at the laft meeting is in the following terms, viz. 1 s i rf T HAVE defired to enter my diffent to this refolution, not becaufe I differ from «// the principles and inferences contained in it, but becaufe there are mgny in which I cannot concur. I diffent .-" 'i [ 13 ] I diflfeot alio, becaufe it does not fpeclHcally apply to the caii; in which it pur f>ort« to be refolved : — Becaufe it attempts to eftabliih a general conclufion on a iibjedl, on which no general or uHfuerfal frotojttioti can be accurate or corrcfl :— And becaufe it precedes the proof of the faas, without the knowledge of which it cannot be determined that any particular qx /fecial rule, in this cafe, would be Juft or equitable. I will proceed to explain, in detail, but with as little prolixity as poflible, theic different grounds of difTent. I ft. I agre; explicitly that the Board, by the fixth article of the treaty of ami- ty, are authori2;ed to confider and determine all claims " whether of principal or *' inttrcji ;" and that therefore there is po fufficicnt reafon, derived from any tech- nical interpretatioa of the word " debts" in the treaty qf peace to exclude the confideration of demands of intereft during the luar, or for any other period :— Or to prevent the award of intereft, in any cale, wLere it may be decined juft and equitable that it fhould be paid. . •„ ;, \^,\, ..,, ,. ",: i„ ..,. - , ,, ,, > But on the other hand, it is equally clear to my judgment, that the fame word •' debts," does not Bt;ceffarily include intereft, either during the war, or for any other period :-~That this obfervation is alfo true of the words " full value" in the treaty of peace, which by found conftruAion ought to be taken, not as a diAinA member of the (entente, but in conne£lion with the words immediately following " in fterling money," and are indicative, not of the quantum of the demand, but of the mode or quality of the payment .----That as by the treaty of amity, all claims, •• whether of principal or intereft," are to be " determined" according to the merits of the feveral cafes, " due regard being had to all the circumftanccs thereof, " and as equity and juftice (hall appear to require," it obvioufly follows, that the Board are not of neceflity bound, by any interpretation of the words of the former treaty, to award intereft, during the war, in all cafes, but may refufe to award in- tereft in whole or in part, if the merits and circumjlances of a cafe fhall make it juft and equitable that it ftiall be denied or reduced. ^ , And therefore that any general refolution on the fubject of intereft, either allow- ing or denying it during the war, or for any other time, is improper, and not con- formable to the fubmiftion in the treaty ; becaufe the allowance or denial is, by the terms of the treaty, made to depend on the merits and circumjlances of each cafe ;--- Not of each claim, but of each cafe or item of debt contained in, and conftituting a part of each claim. 2nd. That " equity and Juftice" will require us to deny intereft in a variety of cafes, in fome during the war, in others for a longer term, and in others alto- gether, will be evident on a confideration of the nature, the meaning, and cha- radler of intereft :— From this confideration it may alfo refult that, in fome cafes, the ttjhole intereft ought to be awarded. , The word '' Interest" has not always the fame figni'" ation :-"Or rather, it has tvjo different aad diftinfl fignifications. It fcmetimes means •' the hire of mo- " ney," or " wages for the uie of money :"- --This was the ancient acceptation ot the term, and is the acceptation in which it is ftill ufed by writers on the law of nature and of nations, and on political oeconomics :-— Th's is its proper import when it is ftipulated to be paid on a loan, in which cafe it may be defciil^'d as of D Jirid .'•:! «?"'»! ,-Cl*f*- '* fi-' [ «4 ] Jf ric? ohWgauon, bccaufe it is the eflential confideration of the contrafl, and is Cm^ phatically a/ar/ of the debt :-—\\. is a diftinguilhing feature of this fpecies of intci reft, that it may bt; owing before the priiicipal is due, as in contrails for money pay- able at adirtant day, hut bearing a prefent annual intereft*;"; J';^ '|^ ; '".',' .1." Ta the ether fignificaiion of the term, tntereft is fynonimous with damages :• — It is damages for the breach, of contraft, or more properly ." it is the common mea- " fure c,'" rf'flwa^w where the contraft is for money, "2 Tr. Eq. lib. 5, ch.i. s. i.. I'his is the acceptation which moll frequently occurs in municipal jurifprudence, und which chieily applies to that vaft, variety of the common tranfaftions between individuals, in which the failure of punftuality is a ground of complaint in the courts of jultice : — In this fenfo it partakes effentiaHy of the nature of damages in general, from which it is only diiVinguifhable in this, that it is meafured by an uniform rule, " fixed by the law to a certain portion of the fum that is due, for " the fpace of a year, and proportionably for a lunger or fhorter time." i /)w«. HI/. 3. tit. 5. But conformably to the general charadler oi damages, and contrary n the attribute of the fort of interefl firft defcribed, it can never accrue until there has been a default of the tarty in the performance of his.contraftT — and, like da- mages, it is dependent on the circumftances of that default ; for, when it Ihall iommence, when it fliall ceafe, when it may hafufpended, when it fhall he received, or whether it fhall be piiJ at nil, are all qucflions to be governed by the cirCum- rtances, and decided dift'.Tcntly as thofe circumftances (hall vary : — This fort of in- tereft has been obvicuily contemplated by the treaty, when it ha'S adopted the ex- prefuons before quoted, and whicii it has well defcribed by direoij'.L..'i avffl T " Ail the forts of reparation of damage are reduced to two kinds ; one which is *' barely called intereft — and the other cofts and damages." 1 Do. lib. 3. //'/. 5. ■ '. .' 2 Tr. Eq. lib. 5. ch. i. s. I. ' ■ • •-• " Intereft is the reparation of damages which is due- from debtors who owe fums' " of money, and who fail in the payment thereof." \Do. lib. 3. til, J; § 1. " Debtors incur the penalty of intereft by their delay to pay what they owe,. " according as the faid delay may be imputed to them, and may have that eife^t, which- " depends c. ihe ««/«« 0/ //.-f fr^^//';; and the circumitanccs. Ibid, ' rr- / I ■'■ / [ •« 1 ," In cafe of accidents which hafitn tuitAfut any /au/t of the party, he will not •* be liable to reparation of damages, by the rule .hat nobody is to anfwer for acci- V. dents, exQcpt therp bp fome fault on their part." I Do. ubi. fup. . , ; ■ v;..i... . :..^. ... .-. i....j... ,.,.!,.,, i,. a 'J'r- E^. Lii. ^. ci>. i. § i,.; - ^ , -■: I ^-'i-zT- 'Jt ;• ' '••":f;v- ::• , ':.:■ -: - '! -r>,\ ■■ ■ " By 4(tm»£t we underftand any lofs pr diminution of what is a man's own, oc- " cafioned by tho/ault of another : — And by a fault we underftand every uHltt