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Les diagrammes suivants illustrent la m^thode. 1 2 3 1 SUNDRY f |U RESOLUTIONS akd PROCEEDINGS, un.*'-' ''IN CASES BEFORE THE Board of CommiJ]ioners, FOR CARRYING INTO EFFECT THE SIXTH ARTICLE OF THE TJR EA T r or AMITY, COMMERCE AND NAVIGATION, CONCLUDED BETWEEN HIS BRITANNIC MAJESTY AND THE UNITED STATES OF AMERICA. f'Cb^U^W V l\Y ^e^'i«*>- \f[\^e^ &l^» w^ CV*v»^x^9,on-» ) PHlLyiDELPHI^: Printed by R. AITKEN, No. 22, Market street. 1799, ^t^ LH., Tli.DLr 1004 tC(-C^(f-^Lf^ fwm-^Mwm-iwmm-m-tvt w^^'tm t^ CoMMI.S<;iONERS' OfTICE, Philacielphlat loth July^ I'JOl' Present, Mr. MACDONALD, Mr. RICH, Mr. FITZSIMONS, Mr. GUILLEiMARD. The Board laid down the following rules, viz : c difregard the award." The Board make no further animadverfion on the abov: argument than thus to ftatc its import, and prohibit all illufion to fuch topics in future. They know no policy but that of jultice, and look forward to no conf;.-- quence but the confcioufnefs of having done tlieir duty. ORDERED I I ' ( 8 ) ORDERED — That the reply in this cafe be printed; that this ovder be therein fully recited, and copies hereof ferved upon the agcnLs for both parties. Exlra& from the proceedings of the Board, G. EVANS, Secretary- Commissioners' Office, Philadelphia y 2\fl May 1798. Present, Mr. MACDONALD, Mr. RICH, Mr. FITZSIMMONS, Mr. INNES, AND Mr, GUILLEMARD. In the Cafe of the Right Rev, Charles Inglis, The Board having rcfunied the confideration of this cafe, caijif *o the following refolutions, viz. JvESOLVED — That the claimant's charader of British fubje(fl was not aireded or impaired by the a^ of attainder and confifcation, pafTed by the State of New York on the 2\ll of Oaober 1779, attainting him with the Earl of Dun- more, Governor Tryon, Sir, Henry Clinton and many other Britilh fubjeds who are therein defcribed, not as fubjefts of the State, but as" perfons holding or claiming property within the State;' and forfeiting and confifcat ng their whole cfhites real and perfonal for their adherence to his Britannic M.ijefty: But that i..- the contrary, the faid ad of attainder and the defcription of loyalift or refuge? applied ( 9 ) applied to uie claimant, oa the prrt of the United States, In confequence of his iiiid adherence, are conclufive evidence that he ftill maintained his original alle- giance : — that therefore he is entitled to claim before this Board, under the 4th article of the definitive treaty of peace, and the fixth article of the treaiy of amity between his faid Majefty and the United Stales. RESOLVED — That the confifcation of the debts in qucftion before the peace is no bar to the claim ; and that the Board have fo determined upon the fame ^rounds .ind principles of interpretation refpeding confif'ations before the peace, which were i. 'opted and declared by the judges of the United States when (in the cafe of K> milton's againfl Eaton) they I'ecided in their circuit court for North Carolina diftri<5l. that debts due to Britifh fubjeds who refided in the province now State of North Carolina at the date of the Declaration of Independence an''. ... t nv.ed there to refide till the aoth day of 0(5tober 1777, when they were oh y :.a by luw either '0 take an oath of abjuration and allegiance to the State or to depart; and which debts had been confifcated or forfeited to the State before the peace, were neverthelefs due and owing by virtue of the treaty. RESOLVED — That the terms of the faid .; !i article of the definitive treaty of peace, are in themfelves plain, explicit and unambiguous; and do not require cr ad- mit of any conltrudion or explanation from the 5th article, to which the 4th article bears no relation whatever. ORDERED — That the general agent for claimants and the agent for the United States be furnifhed with copies of the foregoing refolutions. Fxtrciledjrom the proceedings of the Board. G. EVANS, SECRETARri B Commissioners' il--^ ! ( 10 } Commissioners' OrFicr, Philadelphia, 2Bth May, 1798, Present, • Mr. MACDONALD, Mr. RICH, Mr. FITZSIMONS. Mr. GUILLEMARD. Oi In the Cafe of Charles Inglis. 'RDERED — That the agent for the United States have leave on or before the firft day of June next, to (hew caufe why the a6t of attainder and con- fifcation pafTcd by the State of New York, againft the claimant before the peace, and the other afts of that State fubfequent to the peace, with the ftatement given on the part of the United States, of their operation andeffedt as neceflarily diverting the claimant of all right at law, ought not to fatisfy the Board that at law he could not recover, atd why the additional expence and delay of reforting to a courfe of judicial proceedings, Ly which the eventual lofs might be greatly increafed, fliould now be incurred. Extraded from ihe proceedings of the Board. G. EVANS, Secretary, Commissioners' Office, Philadelphia, \fl June, 1798, Present, as before. In the Cafe of Inglis. An argument on the part of the United States, purfuant to the order or rule to ihew caufe of the 29th ultimo, having been read, Ix ESOLVED — That the faid order has been mifunderftood ; the queftion being, whetlicr there is good gw 3und dy the law of the land, and not under any lefolutioQ < >> ) refolu'.ion of the Board (which cannot affeifl the law of the land or the coaris of juftice) for now proceeding judicially in the recovery of the debt on which the claim is founded. Therefore, ORDERED — That the agent for the United States have leave, on or before the 6th current, to add to the argument which has been read, what •he may think, material on that queftion. Exlracled from the proceedings of the Board. G. EVANS, Secretarv. Commissioners' Office, Philadelphia, ^ih ^une, 1798. Present, js before. In the Cafe of Inglis. JL HE Board having obferved from the argument read at the laft meeting on the part of the United States, that the word •* interpretation" made ufe of in the refolution of the 2 1 It May laft, wherein they refer to the principles of inter- pretation refpedling the confifcation of debts before the peace, which were declared by the judges of tlie United States in the cafe of Hamilton's againft Eaton, has l^en mifunderftood. " RESOLVED — For the prevention of future argument on that mlfapprehen- fion, that in adopting the word ht/erpretationt tlie Board had in view the proper fenfe of the word, namely — the meaning of the article as to the right thereby given to Britifh creditors, notwithftanding fuch confifcation of their debts without deciding (upon the operation of that article) whether it did or did not, of itfelf, repeal the exilting law of particalar States. ORDERED i|: ( l^ ) ORDERED — That both the agents be furnifhed with copies of the foregolnj refolution. EatraSed from the proceedings of the Board. G. EVANS, Secretart. Commissioners' Office, Philadelphia^ llth June^ 1798, Present, as before. Oj 'RDERED — That the agent for the adverfe party (hall have leaTe to fee every paper, in every cafe before the Board, though there may be no fpecial order for that purpofe or for anj anfwer thereto. Exira£led from the proceedings of the Board. G. EVANS, Secretary, 1 \ I I:. , I, ! I V I • Commissioners' Office Philadelphia, l$th June, 1 798, Present, js before. V-/ RDERED — That where an agent does not intend to take the benefit of an order for leave to put in any paper or argument before the Board, nonice be given to die Board to that efFeft without delay. ExtraSled from the proceedings of the Board. G. EVANS, Secretary. Commissioners^ ( »3 ) COMMISSIONFRS* OfFICE, Fhiladelphiat gt/j July^ 1798. Pressnt, as befors. The agent for the United States having reprefented to the Board the difficulties he labours under in his enquiries for want of a competent knowk ^e of the places of refidence of the debtors, ORDERED— That the claimants fpecify as well the State as the county, town or place where the debtor refided at the time the debt was contracted, and if now living, their prefent places of refidence, or if dead the names and places of refidence of their heirs or reprefentatives, as far as thefe particulars may b^ known to the faid claimants or their agents. ExtraSed/rom the proceedings of the Board. G. EVANS, Secretary. Commissioners' Office, Philadelphia, l$tb July y I 'JC)?^ Present, as before. In the Cafe of Strachan and M*Kenzie. Resolved— -That the laws of the State of South Carolina pafled fub- fequent to the peace, and known under the denomination of the injalment laws, were lawful impediments to the recovery of debts, fecured by the treaty ot peace, and in this cafe operated as fuch, within the meaning of the fixth article ot ths. treaty of amity. EvitraBed from the proceedings of the Board. G. EVANS, Secretary. Commissioner*' k'% ( H ) Commissioners' Office, Philadelphia t 1 6th July^ 1 798. f Present, as before. hi R L VESOLVED—That till the anfwer to a claim has been put in and laid before the Board, raifing a queftion of fact between the parties, no application can in common courfe, or without very fpecial reafons be received for leave to ex- amine witnefTes againft fuch claims. ORDERED— That all applications out of the ordinary courie of proceeding before the Board, fhall ftate fpecially the grounds on which they arc made, and meant to be fupported ; and when the urgency of circumftances renders it oecefTary to make any fuch application between the fittings of the Board, that a copy thereof be forthv/ith fent to each commiffioncr as well as the agent for the adverfe party. Ext ra£led from the proceedings of the Board, G. EVANS, SECRETAav. Commissioners' Office, Philadelphia, 2 ^d July, 1798. Present, as befors. O, • f ■ u^^ r^r"^^" ^^^"*' ^^" '" ^^^""y cafe make their enquiries, and mform themfelves fully as to all the material fafts as foon as poffible, after the ca^ comes before the Board, and that every application for leave to examine wlt- ndles at a diftance from where the Board is fitting at the time, rtiaJl fet forth by fpectal averments, the precife fads on which fuch an examination is propofed, the names and places of refidence of the witnefTes to be adduced, the circumftlnces on which each of them can give teftimony, and their means and opportunities refpeftively, ( '5 ) rcfpeftively, of fpeaking from tlieir knowledge; on which application (to be flylcd fpn'tal cverments jfor evtdence) the Board trulting thut agents will not make aver- ments without good reafon to belitve they can be fubftantiated, will confider the relevancy of fuch averments, and either order fuch examination to take place before themfelves, or authorize the fame to be taken at a diftancc, on fpccial in- terrogatories to be fettled by the Board, and under fuch diredions as the cafe may require. ExtraSled from the proceedings of the Board. G. EVANS, Secretary. Commissioners' Office, Philadelphia f 6th Aug. 1 798. Present, Mr. MACDONALD, Mr. RICH, Mr. FITZSIMMONS, Mr. GUILLEMARD. In the Cafe ^Cunningham ^ Co. R] ESOLVED — That in the State (formerly province) of Virginia, the recovery of debts due to Britilh fubje(5ts was prevented by the war, and the opera- tion of various lawful impediments which arofe or were created during the courfe of the war, or immediately preceding the fame. That after the peace, to wit: On the 22nd day of June 1784, and before the expiration of certain a(5ts of the State pafled during the war, againft the recovery of Britilh debts, which were of limited duration, and which it is admitted did not expire till the month of July 1784, a refoluticn was pafled by the legiflature in the general alfembly of the faid State p « << ( i^ ) State of Virginia, whereby It was RESOLVED—" That Co foon as tipafatlofi fliould be made for an infraftion of the treaty of peace therein charged agaiirft Great Britain, or congrefs (hould judge it indifpenfably neceflary ; fuch ads of die legiflature paffed during the war as inhibited the recovery of Britilh debts, ought >:o be repealed, and payment thereof made in fuch time and manner as ^* J/jouU conjiji ivith the exhaupd fituatiofi of the commonwealth." That by the above refolution the legillature of Virginia did in fubftance declare, that the State was not bound to give efFeft to the treaty of peace; that laws againfl: the recovery of Britifh debts did then exift; that notwithftariding the 4th article of the laid treaty fuch laws (hould continue to exid in their utmoft extent till certain con- ditions were fulfilled ; and that even then, fuch laws fliould only be fo far repealed as to enable Britifh creditors to recover payment of their debts in fuch manner as might be found moll convenient for the commonwealth. That on the 1 2th day of December 1787, an aft was paffed by the faid general aff mbly of the State, whereby it was enaded, " That fuch of the ads or parts of the ads ot the legif- « lature of the commonwealth, as had prevented or might prevent the recovery •* of debts due to Britidi fubjeds according to the true intent and meaning of the treaty of peace fliould be repealed." But with an exprefs provifo that fuch repeal fliould be fufpended " until the governor with the advice of council .'hould *« by his proclamation notify to the State, that Great Britain had delivered up to «* the United States the pofts therein occupied by Britifli troops, and the negroes «« alledged to have -been taken away contrary to the treaty, or had made fuch *' compenfation for them as fliould be fatisfadory to congrefs." That al- though Great Britain has delivered up the faid pofts to the United States, agree- ably to and in compliance with the fecond article of the treaty of amity, the faid negroes have not been delivered up nor compenfation made as prefcribed by the faid aft of the State of Virginia, and the faid treaty of aniity contains no ftipulation for that purpofe. That as the exiftence of lawful impediments in the State of Virginia, to the recovery of Britifli debts nowithftanding the treaty of peace, was thu? repeatedly declared and their operation recognized and enjoined by the high- eft authority in the State, fo it appears from the records of adjudged cafes, fubfe- nuent to the adoption of the prefent conftitution of the United .states which have been laid before the Board, with a reference to known and general pradice, that ■udgments for the defendants were accordingly given in the courts of law, on the pleas of Britijh debt and the fiatute of limitations. And that it is ftated by the prefent Chancellor of Virginia " diftmguilhed (as in the anfwer for the United '« States he is defcribed to be) for his probity, learning and experience," and whofe reports, containing the paffage now to be recited have been produced and referred to by the agent for the United States, " Than fome months before" the ,^d day of May 1793, the dodrine " That an American citizen might honejlly " as well as proftdhly withhold money which he owed to a Britifh fuljea," was re- ceived in a court of juftice in Virginia, with " conviaion" and applaufe. That tlie adjudged cafes of which the records have been laid before the Board, m evi- dence of the faid reference to the general pradice of the courts are the following, • to (( ( ^7 ) to wit : A judgment of the court of qu.^.tcr fefiions lu-Ul for LSncaflcr county in t|ic faid State of Virginia, on the lyth day of March 1788, in an adion in wliicli Warnvicli adminilirator was plaictiff and Gajlins defentlnnt, which judgment is in thcfe words, " On this day came the parties by their attornies, and upon hcaiiii" the '* arguments that were offered by the fiud attornies, and all matters of law ariiing " thereupon the court are of opinion that this fu'it he difintffttly it appenrhin to the court to be a Br'ttijli debt. A judgment of the county court of Prince George on tlie 12th day of Auguft 1791, in an acftion in whicli Gibfon Donnaldlbn ami .Hamilton were plaintiffs and Banniflers executors were defendants ; and which judgment is in thefe words, " And now at this day came the parties by their at- *' tornies, and // appearing to the court that the plaintiffs or fome of them are Brlhjh .*• Juhjcds this caufe is ordered to be difmlffed.'^ A judgment of the circuit court of the United States for the mildle circuit in the Virginia diftriiSt, held at Richmond, in the faid difbid on the li: day of June 1797, in an adioD for a debt due on the 2 2d day of May 1775, brought into court en the 22d day of November 1793, in which Hcuderfon' s furviving partners of GA//f/"c/\'/ av.v/ Htnderfon were pLiintiffj and Btnilury's executors were defendants, and to wliich the defendan. > pleaded Ji>y/ thegeneral ifliic, and Jlroiid/y the iratute of limitations, to which fecond plea the plaintiffs replied as follows, to wit: " And the plaintiffs by their attorney fay as t(^ " the fecond plea by the defendants aforefiid pleaded that they ought not to be " precluded from having and maintaining their faid action againfl the defendant, " becaufe theyfiiy, that from and after the 4th day of July in the year 1776, un- " til the jd day of September 178;, there was open war between die United •* States of America, whereof the defendant was a citizen and the king of Great " Britain to whom the plaint iiTs were fubjcifts ; and that the various laws of the "" State of Virginia prohibited the recovery of the demand in tlic declaration '* mentioned." But the faid fecond pica was adjudged to be good. A judgment of the county court of Prince Willi'sm county on the 8th day of Augui'l 1797, in an adion brought into court on the 4th day of Augufl 1 795, for a debt due on the 2d day of December 1775, in which WiUiam Cunningham and Co. were plaintitfs and Pr/jr;'/ adminiftratrix was defendant, and in which there v/as a verdict for the defendant on the direfrion of the court that the demand was barred by the flatute of limitations. And a judgment of the diflricT: court ccmpofcd of the toimties of Prince George, SufTex, Dinv/iddie, Hallaway and Amelia, on the i6th day of April lail: in an adfion for a debt due on the i6th day of January 1776, brought into court on the 27th day of April 1796 in which IVillunn Cunningham and Peter Murdoch defcribed as fubjedb of the king of Great Britain were plaintiffs, and Sturdii-ant^ executor was defendant, anci in which the ftatute of limitations \vu3 pleaded, the 4th article of the treaty of peace flatred in rcpl}', and on demurrer the ■plea adjudged to lie good. To ail which eridence of the cxiflence and adual operation of lawful impediments to the recovery of Britifh debts, nothing has been oppofed but an averment that the Icgiflature of the State of Virginia v/ere ignorant of their own laws ; and an argument to prove that according to the theory of the kw, and conffitution of the United States, fuch legiflaiive avfls ought not to have j)afred, nor fi-ich judicial decifions to have been given, C RESOLVED r i8 ) RESOLVED — Thatfo far as the full recovery of the debts in this cafe claim- ed, has, during the operation of the faid lawful impediments been delayed, and the value and lecurity thereof impaired and leffened, or totally loft, by lapfe of time, the lofsof legal evidence, infolvency of debtorsor otherwife ; fuch delay of re- covery and diminution, or lofs of value and fecurity are to be afcribed to fuch operation of lawful impediments ; unlefs it be (hewn within the provifion of the treaty of amity, that fuch delay of recovery and diminution or lofs of value and fecurity were occafioned by other caufes which would equally have fo operated if the faid lawful impediments had not cxifted, or arofe from the m^nifelt deJay or negligence or wilful admiffion of the claimant. RESOLVED — That no part of the debts in queftion which are clafTed or defcribed as " doubtful" in the lifts referred to in the memorial, and which are ftated to have been fo defcribed in the year 1775, and not alledged to have fincc become good, can be the fubjedt of claim before this Board. ExtraBed from the proceedings of the Board. G. EVANS, Secretary. Commissioners' Office, Philadelphia, 6th Augujl, 1798. Present, Mr. MACDONALD, Mr. RICH, Mr. FITZSIMONS, Mr. GUILLEMARD. In the Cafe ofD. Dulany. The Board refumed the confideration of the refolution which was propofed in this cafe on the 1 3th day of June laft, and had been the fubjedl of frequent confe- rence and deliberation ; and the fame was pafled as follows : HE Board having confidered the pleadings in this cafe, and particularly the additional argument on the part of the United States in confequence of the order ( »9 ) order dated the 7th day of May lad, fuggefting to their agent certain points anrf pinciples for further difcuffion, to which order reference is now had. lESOLVED— That the claimant, Daniel Dulany, a BritiOi fuhjea, became immediately on the death of the teftatrix Ann Tafker, as refiduary legatee under her will, entitled to, and ci editor in equity, in all debts due to the faid teftatrix at the time of her death — that depreciated paper money was at different times during the war tendered to the executor under the will in payment of certain debts fo due ; which depreciated paper was received by the faid executor in chcdienct to an a^fl ot the general aflembly of the State of Maryland, parted in April 1777, whereby it was enaded that the paper r.oney therein mentioned fliould be '' received in payment «* and difcharge of all manner of debts ;" and that if a creditor refufed to receive fuch paper money when tendered in payment and difcharge of his debt, the whole debt and demand ibould be ''for cvir 'exlhigui/hu/," the bond or other voucher of the debt delivered up, or a difcharge given to the debtor who might fue the creditor for damages to the amount of the debt with colh of fuit, if on refufing the tender he alfo refufed on demand to deliver up the bond or other voucher of debt, or to give fuch difcharge to the debtor — That the aft of an individual in obedience to a peremptory law is the ad of the law itfelf. That in every fuch caie of tender the extindion of the debt at law was by adt and operation of law, which it was not in the power of the creditor either to promote or prevent ; for whether he rccciv-J the tender and obeyed the law, or refufed and difobeyed, the debt was thereby immediately extinguiflied. That the Board are bound to av/ard relief wherever the right is good in julHce,, and the remedy without fault in the creditor is gone at law. That the exiflence in this cafe of the creditor's rigb.t injulHce to the ex- tent of all that has been withheld of a fair debt, has not been made the liibjca of difpute ; but his remedy at lav/ has been loft by his obedience to law ; and there- fore it is maintained that the nation is not bound to relieve. That it is incumbent on every individual, whether alien or citizen to yield obedience to the authority under which he lives at the time, fo far as that obedience is not directly inconfilt- ent with prior duties, nor is it a doctrine to he admitted in any cafe that a nation has a right to complain of an individual for having obeyed their laws; or under an agreement to allow compenfation for certain loflcs arillng from their operation to retufe fuch compenfation becaufe thofe laws have fo operated and were obeyed. That difobedience to the law could in this cafe have proceeded from no rational inducement; for without enquiring v/hether as is alledgcd, the courts of juflice did afterwards and fubfequently to^the peace in many inftances of tender and rc- fufal, defeat the operation of the above lav/ by taking advant.ige of defers in form, fo as that the creditor " might have recovered (as it is fiid on the part cf « the United States) the whole fioni the debtor, the principal as well as the in- " tcreft to which judice would have entitled him" it is fuftitient that no mcti'e could arife from events which had not then happened ; whdc refuHil of tender in difobedience of the law, and in circumfiances which gave no preiage o{ flivcr in fuch cafes, and when '* the dodirine of tender it is faid was iitue underftood/' would have deprived the creditor of an i.mmtdiate faiisfadtion, in part fubjedl-d hina ( 20 ) him to a judgnifni. and execution for damages to the extent of the whole dcbi, with cods of fuit, and expofed him to all the hazard of perfonal inconvenience, •which in fuch times and circamftanccs is neceflarily incident to the open and avowed breach and contempt of pofitive lavv. That therefore the amount of what remains unpaid of the full value in fterling money of the debts in queftion, as (ecured againft the operation of lawful impcc'lments by the 4th article of the treaty of peace, is a lofs which arofe from the ad andoperation of law, ftill impeding and preventing the attainment of remedy in the ordinary com fo of juftice, and as fuch the proper fub- jeft for claimfor corapenfation under the 6th article of the treaty of amity. Exfrnifedfrom the prorecit'mgs of the Board. G. EVANS, SscRETARr. Commissioners' OrriCE, Philadelphia, 6th wlug, 1798. Present, as before. In the Cafe of D. Dulan R) ESOLVED — That In order to prevent as much as poflible the incon- ven'encies which muft arife from erroneous impreffions of the principles entertained or adopted by the Board in the interpretation of the treaties, more efpecially when fuch erroneous impreffious are produced by the publication of printed arguments, it becomes them to declare that the firft point fuggefted for further argument in this cafe by the order of the 7th day of May laft, referred to in the above refolu- tion, and which point is in thele words, " Is it not therefore clearly underftood by ** both parties, as a principle, that a difcharge or extin£lion of the debt a: laiv before " the treaty is not of itfelf a bar to the remedy thereby provided; but that it mufl alfo appear to have been fuch an extindlion and difcharge as proceeded from the/r^e concurrence and •voluntary aft of the creditor, and not from the effeft and ope- ration of law J fuch operation of Uw, in bar of all legal Mmedy, being on the " contrary (( 1'^ { 21 ) -^ contvaKielicd on as thcm;iin ro-indation of a right to claim under the treaty f'| i. altoeciluT inifrcprell-ntcd i'i the following anfwcr laid before th.'iJoaul.ar.u printed on l!r; part ot the United Stales. " B .t the a^cnt for the United .Stut.'. «•- djes not ."imit that it \va:- ever undcrilood hy him or by the Uiiilcd htatcs as a «•■ ccncral ^ i.:]rcipletbat tL- dillkirge or extmmon ofthcMt at laiv kfor: the p-ac •« Ijas a le^a! n.itictiment nvhkh th, treaty of pcau removed; and confequcntly ih:U « every adjullment and payment between the debtor and creditor, before tha^ " period vaj '%iblc to be re-examined and unfettled. On th^ contrary, the agir! '♦ denies fuc'h a frhwiple, and contends that the Board has no power to make c ;ia- « rninaion hno any matter that has been fettled by the debtor and cr:d.tcr *' r.c-ordina to the laws of the land." That the foHowmj; words m the above p-arape, vi/! « principle that the difcharge or extinftion of the debt at law bctorc '' th peace nuas a le^,al mpediment 'U'hich the treaty of peace removed, are punted m the faid anfwcr with full marks of quotation as if not only the lubflanec but the very terms made ufe of in the order had been therein faiiutully j-iyen ; wherear ev-^'rv word of die latter part of the fentcnce is a mifquotation, tendmg to luppon the conclufion Imputed to the Board, but totally different from and in part prec.fcly th'' rcverfe of the plain propofition they cxprcff^d. lor the Board have ncvu fu^gelkd or given any re.afon to afcribc to them the opinion eitlr.r that the validity of '' payments accepted by the creditors whether in p^i^^r noricy, m Lind., m » houfes, in public fecurities, or in any otlier commochty to whtch both partie. the u creditor and debtor had agreed is queftionable," as ftated m the fir ft paragraph oi that printed paper. Or " that every adjullment and payment between the debtor « and creditor before the peace is liable to be re-examined and unfettled. as ftated in the paragraph before recited. Nor have any fuch nropofitions ever b:er. maintained before them. ^- Ext railed from the proceedings of the Board. G. EVANS, SecrbtAry. COMM'iSIONF.R' ( 2* ) Commissioners' Officb, Phikilelfihiay Sih yiu^uji, 1 798* Present, Mr. MACDONALD, Mr. FITZSIMONS, Mr. GTTILLEMARD. In the Cafe of DAmzL DvLANY. Mr. Fitzamons read in his place his proteft againfl the proceedings in this cafe at the laft meeting, as follows, viz 2 — V^N Monday the 6th ioftant the Board propofing to take up a rtfolution upon the claim of Daniel Dulany, whereby the right of the claimant to compen- fation for depreciation on payments made to his reprefentative during the war, is recognized, notwithftanding the debts for which fiich payments were made were at the time finally (ettled and the evidence thereof given up or cancelled. It was objedcd to on my part that fuch a claim ought not to be entertained by the Board, becaufc neither the words nor the fpii it of the treaty would warrant the conflruflion, tha-. payments thus made could now be fet afide, or be confidered as legal impediments. That rather than give countenance to a rcfolution which (in my opinion) was fo manifeftly unjuft, I (hould withdr.v from the Board tc pre- vent its adoption ; (a determination I had explicitly exprcfTc'.; when the fame lefolution was before under confideration) being aflce' 1 owevet .0 hear he rcfolu- tion read and without the fmallefl expedation that after my declaration the other members would confider roe as prefent to this purpofe I remained in my place, after the fecretary had finiflied the reading (and fome obfervations had been made by a member of the Board purporting that I had not a right to withdraw) I heard with infinite concern an order given to him, to enter it as agreed to ; and to furnifli copies i. I gents as in other cafes. Under lucfe circumftances it becomes my duty to protefl: againft the validity of the faid refolution which I do *iot confider as having pafied the Bonn.', and I requeft that the agent for the United States and the agent for claimants be fur- nifhed with a copy of this ftatcment and declaration. Jugujl 8, 1798. (Signed) THOMAS FITZSIMONS. ( ^3 ) The abov hcing read, Mr. Guillcrnard and Mr. Macdonald rcprcfentcd, that ifterthe re -din' of the rcfolutions, and after obfervattons had been made as above, the quelHon was diainaly put and Mr. Macdonald. Mr. Rich and f ^. Gu.llc mardcave their affcnt, the one afte, the other to the paHmg ot the refolutions, on which the fecretary was defired to enter them as pafftd, Mr. Fitzlimons (hi con- tinuing in his place, and that the ^vhole bufmefs was done deliberately, it having been fettled on Wednefday the firft day of Augull, that it ^ould be taken upon the Monday following. ExtraBcd from the proceedings of the BoarOt G. EVANS, Secretary. Commissioners' Office, Philadelphia, St h Jug. 1 798. Present, Mr. MACDONALD, Mr. FITZSIMONS, Mr. GUILLEMARD. In the Cafe 0/ Cv^mi^GiiAU and Co.' Mr. FitzfimoDS read in his place his difTent from the refolutions agreed to in this cafe at tlie laft meeting, as follows, viz :— The refolutions pafled by the Board in the cafe of Cunningham and Co. containing as I believe, principles inconfiftenl with the true intent and meaning ot the treaty under which we a^-I defire to enter my diiTeat from them on the following grounds : . lit* ( 24 ) 111. Ee-.uulc liie proofs before the lio.ird arc not fufficient to v/arrant the con- duUun, tl..it lawful impediments to th-; recovery of Britifl\ debts cxilkd generally 71 Virgini.i. The records of judgments in two rafes in county court?, and the 31^:5 and refo- liitious of the legiflatiit-e, are cited, with a refeienceto the general pniaice of the courts ; but it is alledged on the part of the United States, that_ judgments in numerous inilances were obtained in the courts of Virginia by BritiHi creditors, that no appeal was'ever carried up fiom the lower to the higher courts where the ji!c!",ments might have been corrected ; and that it was incumbent upon the par- "tics'to have leforted to thefe tribunals before a principle f& important fliould be. admitted to the extent laid down in the refolution more particularly as it has always been held that the treaty of 17S3 controuled the laws of the particular St;itcs. 2d. Becaufe judgments given upon the flatute of limitation are cited v,i;houtany /^jecification of t'le'^circumlhinces upon which they were given, and inferences ara. Office of the Commissioners, VnJer the Sixth Article of the Treaty of Amity, &c. with Great Britain. Philadclphiay iSih Dec, 1 798. ■ : Present, Mr. MACDONaLD, Mr. RICH, Mr. FITZSIMONS, Mr. SITGREAVES, • Mr. GUILLEMARD. In ike Cafe o/" Cunningham & Co; The refekitlon moved by a member of the Board on the 13d day oi OAober lalt, on the queftion oiinterej during the luar, which, with other genera! queflions of interpretation, was in the anfwer to the United States, fpeciaUy railed and fubmitted, on full argument, for the determination of the Board m this parti- cular cafe, as involving " many important principles neceflary to be decided," f which anfwer it appears from the letter annexed to, and printed therewith, wai 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 has accordingly been made) having been again moved, the matter was this day fully difcuffed, and the refolution paffed as follows :— The Board having confidered the argument of-both parties on t]\e claim of in* tereft during the war, which is oppofed on the following general grounds and principles, as ftated in the anfwer of the United States, viz. The rules of conftruaion eftabliflied by the law of nations for the interpretation of " obfcure or ambiguous pa<5ts :"— The meaning of the word " debts'* in t\iQ fourth article of the treaty of peace as not comprehending intereft, becaufe intereft is recoverable at law in the technical form of fl'flmrt^^j, for the detention of the debt; "being what is given more than « the principal, that the creditor may not be a lofer :" — The ( 28 ) The inference to Ic drawn from the demand of a dcduflion of intcreft duilng the war, which had been made on the part of the United States in the caurfe of the negociation previous to the formation of the faid article, and from a converfation luhfequcDt to, the .treaty, viz. in. the year 1786, between the Britifli fecretary-of ihte for foreign affairs, and the American miniller at London ; in which the latter iungefted " the policy of giving up the intered during the war, and of agreeing to ""a plan of payment by initalraents ;" and rfie former, after " fome flight ,ex- '» preffions concerning-thc intereft, wifhed that the courts were oi>ened for lecover- iii > tiie principal," and obfeived »♦ that the int-reft might be left for an after conlidcration • "-^ The nature and caufes of the war ; in the courfe of which " the produ^s of the '* land were indifpenfably neceflary for defence againft that which, on the fide of " the Americans, was a war for life, liberty and property: A war pro aris et . " focis'," attended with circumftances of fuch defolation (as defcribed in the , *' printed anfwer) that after the application of what was thus neceflary for defence, ., '•' there was nothing left to an individual for paying intereil on his debt :"— " The interdiaion of commerce to the United States by the Britifh parliament," and ftoppage of " intercourfe anJ accefs between the American debtors and Britifii " creditors," by which " the detention of the debt during tlie war was unavoid- « able:"— The departure of creditors, and their faiflors, from the State, fo that no perfori remained in the country to receive payment of the debt : — The analcgy between the prefent cafe, and tliat quoted from Vinei's abridgment, in w^hich it is dated, " that where by a general and national calamity, nothing is « made out of lands which are afligned for the payment of interelt,.it ought not, •'■ to run on during the time of fuch calamity :" — The authority of writers on the Uw of nations, whofupportthe general pofitlon,' (which as fuch has been dated, and not difpvited on the part of the United States) viz. " that debts due to private perfons before a war, fliall be paid after the war \, " and with intereit during the war, if fuch was the contract, either tacit or ex- ♦* prefs :' — But who alfo lay it down, that " if nothing elfe be agreed upon, yet '* this is to be fuppofed in every peace, that no adtion fhall be commenced for da- " ma'^es-done in war, which is alfo to be undeiftood.of thofe done to private per- " fons ; thefe being alfo the effeds of war :" — The equity, as between creditor and debtor, of denying intereft during the war, whereby " the creditor and debtor will be put upon a more equal footing ; and a f* Ibis will not be incurred by the debtor, for the fake of a gain to the creditor :" — <( ( 29 ) The evidence of fuch equity, arifing from « the praiHice of the courts and jurits in difallcv/ing interelt during the war, generally, throughout the United States;" fuch being ilated to have been, and to be " the prnaice of the courts" (and of juries in all cafes that v/ere " under the power of their verdias") of New- ** Tori, Neau-Jerfeyy Ptnnfylvamay Delaivnre, Marylatu/, V'trgln'uh and South- »♦ Carolina; in fome of whicli States the claims (it is fuid) of Britifh debts were ** fb 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 dcUvered by the judges of one of the State courts of Virginia againft the allow- ance of fuch intereft, in the cafe of M'Call againjl Turnery decided in 1 796 ; On which occafwn it was ftated from the bench (as appears from the report of the cafe in the appendix to the anfwer) that on comparing «* the condu^ of the *« two nations" during the war, " the comparifon was evidently in favour of Ame- " rica ;" that of Great Britain amounting to ij many deflexions from the modern «« rules of warfare, which did not entitle the creditors even to th»-f rincipal debts " themfelves, had they not been ftipulated for by the treaty of, ace;" a iHpuIa- tion which " although it was unjuft and inconvenient in one reipea, yet as the «' other parts were efteemed beneficial, it was right to accept, fyr the fake of the • " gen«ral advantages it contained :" — . And the further evidence of fuch equity arifing from the general impreflbn in America daring the war, that " in a conteO of that kind, if fuccefsful," few would be " required at a future day to pay fuch intereft." RESOLVED— That the defcription contained in the 4th article of the treaty of peace, of the nature and extent of the right and property thereby fecured againlt the operation of lawful impediments, viz. " ih^ full value in fterling money of all ♦' bona fide ikbts, theretofore contraded," is a defciTption in terms which are clear and explicit ; and therefore, the authorities which have been referred to on the con- flrudion of " obfcure or ambiguous padts," bear no application to the prefent quef- jifjn : That the full value of a bona fide debt muft mean the full amount of the obit- gation, with all its incidents, according to the contrad : — That intereft has been rightly defined on the part of the United States, to be a fixed andTettled compen- fation for the damages fuftained by the creditor through the detention or delay of payment of the original debt, « that he may not be a lofer ;" and in law as well as in equity, fuch conipenfation is confidered as a growing increafe of the debt it- felf; the form, in certain cafes of recovering or awarding fuch increafe of debt in courts of law, by the name of damages, leading to no fubitantial diltindion, incon- filtent with the known and long eftablifhed nature of the right, and that common acceptation of language by which alone the treaty muft be conftrued : — For the ar- gument which has been laid before the Board, from the letter of Mr. Jcferfon to Mriv Hammomh previous to the treaty of amity, referred to in the anfwer to the claim- a, ( 3° ) ci.iii.i, is an elaborate mifapplication of authorities on the technical diftinftions ana rdlriaive language of form in courts of law, wliich the framers of the treaty cannot hz prcrumcd to have known, and never nicant lo apply : — That if from the deno- mination of damages, as applied to interell in courts of law, the conclufion could be drawn, i/jat interejl ituis not debt, and therefore not luitlnn the meaning of the treaty, fuch conclufion would affea the claim of intereft in time of peace, as well as during the war, and therefore reach too far for the argument, which admits that intereft ac- cruing in time of peace is due according to the contraft : — That if any rcalonable rround of doubt remained, it would be removed by certain fads, as ftated on the part of the United States, and from which a contrary inference has been drawn, viz. the demand, in the courfe of the ncgociation previous to the treaty, of a deduc- tion of intereft during the war ; the filencc of the article on that head ; the fubfe- qucnt fuggeftion by the American miniiter in the year 1786, of " the policy of " giving up" fuch intereft, thereby admitting, as a matter of neceflary implication, that the payment of the intereft to be thus " groen w^," had been previoufly (tipulatcd and fecured ; and the anfwer made by the Britifli fecretary of ftatc to the fug- jteftion of thus ^i giving up" the faid intereft on principles of policy, viz. " that "»'' it might be left for an after confidertion ;" with the fad that it never was on after confideration given up, but on the contrary, by the 6th article of the treaty of amity, which adopts the fame general terra " debts'" as defcrlptive of the fubjeft jiiatter thereof, «' the commiffioners are empowered and required, in purfuance of " the true intent and meaning of the faid article, to take into their confideration all «« claims, whether of principal or interejl^ or balances of principal and intereft" (without any allufion whatever to a diftindion between the cafe of intereft during the war, and intereft in time of peace) " and to determine the'lume refpedively, '* according to the merits of the feveral cafes ; due regard being had to TiWthecircum- *' flanges thereof and as equity and juftice ftiall appear to them to require :"•— That the Board arc thus empowered by the treaty of amity to award intereft dur- ing 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 on a right fecured by the treaty of peace ; therefore, an award of intereft during the war will be founded on a right fecured by the treaty of peace :— -From all which it follows, not only that tire general term " debts" in the 4th article of the treaty of peace, comprehends the ixihok intereft, as well as the tuhole principal ; and that the Board are, 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 circumftances " oi the feveral cafes," upon fuch principles as (with reference to the faid merits and circumftances of each particular cafe) fhall appear to them to be juft and equitable :— Nor is any diftinftion to be found in any of the treaties between that part of the claim which is compofed of intereft and that which is compofed of principal, the Board having no greater power of decifion over the one than over the ether :— That it is not alledged, nor does it appear, that any fpecial bar or ground. of objedtion againft intereft during the war, arifes out of the nature or terms of the tontrads, or other particular merits or circumftances of this cafe ; nei- ther is there any general ground on v/hich the cafe can be confidered as forming an exception *- ^ ( 3' ) exception to the pofition arlfing out of the law of niitions and before recited (as flatcd and referred to on the part of ths United States) viz. " that debts due to ])rivr.tc " perfons before awar, fliall be paid after the war ; and with intsreft durin;^ the «* war, if fuch was the contraft either tacit or exprefs." For ewry inference w'vch can be diawn from the particular nature of the war, as diftinift from tliat *' of or- " dinary wars between independent nations," is in favour of the original rontrai'^ between the parties, and gives llrengtii and application, a fnrl'torlyto the found poli- cy of juilice, which prcferves unimpaired by national hollility, the full eifeift und integrity of good faitli in private tranladion :— But on this head, the fentiments of the- Board cannot be better cxprefTcd than in the words of a leiirnerl jud;',e ( P,it!crf<::iJ who, in delivering his opinion in the fupreme court of the United States on the 7th day of February 1796, in the cafe Jcties v. //>7/0;-7, exprefTcd hlmfolf as follows : — ** I feel no hefitation in declaring, that it has ahvays appeared to me to " be incompatible with the principles of julHce and policy, that conirads cntcrcil «« into by individuals of different nations (hoidd be violated by their rcfpeiSlivcgo- <• vernments in confeqnence of national quarrels and hollilities — National tli^crnices *' JIjouIcI not nJfeB private bar^ralm. The confidence , both of an individual and na- " tional nature, on which the contra^fls were founded, ouglit to be preferred invic- f< late. Is not this the language of honefly and honour ? Does not the fcntimcnt «• correfpond with the fentiments of juflice and the divTiates of the moral fonfe ? In t< fhort is it not the refult of right reafon and natural equity ? The relatioh v/hlch the parties Hood in to each other at the time of contraiSang thefe debts . ought not to pafs without notice. The debts were contracted when the creditors and debt- ors were fubjefls of the fame king and children of the fsime family. They were made under the famStion of laws common to, and binding on both, yf revolu- tionary war could not like other ivars be forefeen or calculated upon : — The thing was improbable : — No one at the time debts were contradcd had any idea of a feverance pr difmemberment of the empire, by which perfons who had been united under one fyflem of civil polity fhould be torn afundcr, and bcconfle enemies, for a time, and perhaps aliens for ever. Contrails enteicd into in fucii a ftate of things ought to be fiic redly regarded: — Inviolability feems to be at- " tachedto them :" — -" The conftruflion of a treaty made in favour of fuch cre- " ditors, and for the reflroration and enforcement of pr-e-exifting contrads, ought " to be libc al and bepign : — For thefe reafons.this claufe in the treaty defervcs the " uimoji latkude of cxpofitlon :'^ — That independent of the- irrelevancy of the faft in a queflion of private right fecured to creditors by treaty and the law of nations, the prevention of remittances to Great Britain, and ♦* detention of debts during " the war," ought not to have been afcribed to the " interdiiftion of commerce to " the United States by the Britifli parliament:" — For by virtue of a refolution cf congrefs, which took place on the 10th day of September 1775, and which war. Uited and recognized by the fupreme court of Pennfylvania in deciding t.he cafe of Hoare agalnjl yllkn, the exportation of all merchandize and commodities whatfo« ever to Great Britain, Ireland or the Wefl Indies, was prohibited ; the faid refo- lution rendering it afterwards (as laid down by the court in that cafe) " unlawful " to make remittances to Great Britain:" And on the 2cth day ol Ofiobtr 1 ^ M ^ cc << (r << (( <( U enfably neceffary for detence, and « nothing was left to an individual for paying intereft on his debt;" from whidi it alfo follows, that nothing can be more remote from al^rcfemblence to the prefent cafe ( 33 ) cafff, than that of tfriffer and refufal at Ixw, to ^vh!ch it hr.s been afliniil.ucJ in the letter from Mr. Jtfftrfon bcrore-mentioned j the very eflcnce of tender and rcfufal confifting in the adlual offer of the money, and its being alivays rtudy to be paid : — That as the means whiclj might othcrv.ife have been ap- plied towards payment of Britifh debts, were thus expended in fupport of the v/ar with Great Britain, it is of no importance to the concluhon, whether that war •* was on the llde of America" maintained under the circumfbinces which havo been dofcribed, and merely '* for defence" ajjainll: hollile aggreilion; or for the at* tainment of great and valuable public objects: — For Britilh creditors were individu- ally on the return of peace as little relponfible in the one cafe, as entitled to or poileiFed of any participation of benefit from the event in the other; — That all ar- guments againll: the jult rights of individuiils derived from the nature and caufcs of the war, or refletlions on the manner in which it was conducted on tlic one iidc; or on the other, are befides, as inconfiilent with the eftabliflicd principles of th'j lav/ of nations,, as repugnant to the fpuit of that difculfion v/hich ought to tahi place in I he execution of a treaty of amity : — And fo far only will the Board animad- vert on the publication of charges againil Great Britain refpeccing tlie nature and condu6l: of the war, as itated in the printed anfwer in this cafe, and documents thereto ai -^exed, in terms of delcription which little accord with the buhncfs of conciliation and peace : — That the general politioii 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, has been flated and admitted on the part of th^ United States ; and in addition thereto the following pafllige has been quoted Irom Vattcl, viz. ♦' if nothing tlfc be agreed ttpon, yet this is to be fuppofed, that no " ai5>ion fhall be commenced for damages done in war, which alfo is to be under- " flood of thofe done to private perfons, thefe being alfo the clfeifls of war :"-r- But if this latter pofition had reference as has been argued, to the cafe of intereft, it would be dlredtly inconfiflent with the former; beiides being precluded in it; application to the prefent cafe by the condition it contains; for here there is 211 exprefs agreement by treaty to the contrary ; and as damage done in v;ar to the property or efFeds of individuals is not the fubjed of an action on the return of peace, fo it cannot m jurtice be the ground of objcdlion or defence agalnft an aifticn for recovery on an antecedent right: — That the cafe which has been put and relied on, as ftatedin the faid letter from yiv. Jejerfon, of Intereft feparatcly fecur;d by an afflgnment of lands, of '* a general and national calamity" by which '* nothing is '■■ -made out of the lands" io afligned, and of the ll:oppage of the c. -^.i 7 of fuch interell: during fuch cabmity, bears no analogy v/hatever to the prefjoi cafe : — For, without enquiring how far the nature of*' the general and national calamity" con- templated in ♦■he cafe referred to, Supports the comparlfon ; or reftlng upon the facl, that in this cafe payment was not withheld from a failure of means, but fro.n th;; application of thofe means on the part of the debtor to ot'ier purpofes, it is fahiclc^it that here there is no fucn aflrgnment of lands, or fpccific appropriation and accept- ance of a particular fecurity or fund of payment; but a ftmple, abfolatc, and un- (juulificd. obligation by the debtor, that the debt, principal and interetl, without E . di(Hn(5t'.on ( 3+ ) S ^C^i:S^^:^^'^^^^^ Mr. «. .Z.,>^. in the cafe of T^aXfl VoUls, as follows, viz. " In (hort, ^.he ;^. 5.000 paid with .ntcrc^ a « hiX is notin faa or law. more than the ^^.5.000 paid wallput u.tereft at hJ d^r t becomes due :"-^That an award of intercU during the war would not As 1 L bet urecd) cr ate " a lofs to the debtor for the fake of a gam to the " cr«i or •'' f^^^^^^^ to the compendious defcriptiorvof the nature of mtereft wlSl s -uft been referre'd to. .nd L definition already ft^jed. as numt W Tith much arcument, and on many authorities, on the part of the United btates, Tn e eri Itl^ rbu compet-Hmon to prevent lofs ; fo that the denial of mtere I ^dd be gaTn to the debtor, and lofs to Ihe creditor; with ^J -"^^^ /" J'^^ d tlon to thf additional valueof money during the war :-That therefore .fth.W u . e to deuirt from their duty, in the impraaicable attempt fugge led n the aniwer, If pacintStorand credit!; - upon in equal foctins^; by eft.matmg conjedu al loffes and ba ancing inequalities in their refpeftive f.tuations. advantages, or fuffer- nis dul; tJie war, the fettled rate of intereft might be fouud in many mftances to^fif very^fa fl^ort of the loffes, immediate or remote, fuftamed by the credito hrouUlV detention of his debt, at a time when payment was moft waned; twetegai^o the debtor, in the application or- ufe -{}^- r"""^ ^\TT^^l withheld might far exceed the amount of intereft for which he was liable ;-That Ts many ind vidual inhabitants of the United States were, doubtlefs, reduced to a ftatTof infol ency by the war, fo it is matter of equa notoriety, that many Buufl^ ^iTchait anSo'the'r fubje^s of his Britannic -ajei y were dnven -^nk^^^^^^^^^^^ and ruin through the lofs of trade, non-payment of ^^^^t, and other circumltance^ arifmn from the farne common calamity ; but it does not appear, nor has t been a iSd tL any fuch claim of exemption from intereft during the war has ever on thafaccount been attempted or fet up, or could be maintained in any of hisfaid maiSl^sZ^^^^ britifh debtor, however unfortunate, or however deulv his loffes might be deduced from the fame caufe which has been held a fuffi- cient groLd for fu?h exemption in favour of American debtors; fo that //.. /n«. S/?aprd by the learned judge, and on the occafion firft above-mentioned, to he cat of BrUiilx creditors Vhtfe debts had been paid into the State treafury, 1. eaualt anpliclb le to the prefent queftion, and was flated-by the^faid learned judge nTh efblw ng tem^^ : - The conitru6lion on the part'of the defendants excludes ' li7 The debts due from Briti(h fubje£ts to American citizens were n^ confifcated or fequeftered, or drawn into the public coffers. They ^yere iett un- - touS Now^^ all the Britifh debtors be compelled to pay their American credkor and a part only of the American debtors be compelled to pay their Britm creditors, there will not be that mutuality in the tlnng which its nature and uftice qu^es. The rule in fuch cafe fliould work both ways ; whereas Jheoh cona^^^^^^ mutuality and proceeds upon indifcrim.natmgjnn. ciples. The former conftru^ion does violence to the letter and fpir of the inftrument ; the latter flows eafily and naturally out of it ; -And fo it may be <( «< ( 35 ) fatd,.' that If dcbtora in Great Tjiitain to American creditors may be comijcllec! to pay their full debts, intereft as well as principal, and debtors in America to Biitifh creditors can only be compelled to pay a part of their debts, viz. principal and part of the intereft, the conftrudion '• excludes mutuality" in the executioii of the ar- ticle, and " does violence to the letter and fpirit of the inftrumcnt :"— That the allcdgcd equity of denying intereft during the war, derives no fupport I'.om the cxpcdation which it is faid prevailed during the v/ar on ihc pirt of debtors in Ame- rica, that *' if the event proved fuccefsful" they would be thereby fo far relieved from the payment of their debts ; for the fame expeflation may have prevailed to the full extent of the WW^ Mt due to fubje^s of Great Britain, principal as well as interelt :— -Nor can. any fuch equity be fupported, on the Tcrdifts and deci- fions of courts againft fuch intereft ; whether they have been given in thofe particu.- lar States in which it is alledged " the claims of Britifh debts were fo inconfidcrablc " and fo few as not to have occafioned public concern, or to have excited any " prejudices ;" or in States where the claims of Britiih debts were fo confiderablc and fo many as to occafioq. " public concern" and " excite prejudices :" — For fuch veidifls and decifions againft any part of tJie flipulate^ or fettled interelt of juftdebts,are themfelves the fubjed of complaint before this Board, as lawful impe- diments to the full recovery of fuch debts ; on the exiltence and juftice of which the Board are bound and authorized exclufively to decide : — That therefore no lufficient caufe has been fhewn, why in awarding full and adequate compenfation for fuch debts as maybe proved, within the intent and meaning of tlie treaties, fulf interefl fliould not be awarded for, the; detention and delay of payment during the war, as well as in time of peace ; but pn the contrary, for the above rcafons, and others which might be ftated, it is juft that, fuch intereft (hould be awarded, ac- cording to the nature and import, exprefs or implied, of the feveral contrads on which the claim.is founded. Mr. SiTGREAv^s diflented from the above refolytion. Mr.. Fit z SI MOWS alfo diflented. Philadelphia, lC)th Dec, I798.- In the Cafe of Cunningham and Co. IVlR. SiTGREAvjES defired to enter his diflertt from the refolutlon in this cafe pafled at the laft meeting, for reafons ftated in a minute which he prefentcd and read before the Board. Mr. FiTzsiMONs. ftated that he would prepare a ininiite containing his reafons againft next meeting. Phikdelphidy ( 3<5 ) Phiiadclpbiat 2i/? Dec. 1798' In the Cafe 0/ Cunningham and Co. from all tlie principles and inferences which I cannot concur. fnecifically apply to the cafe in which it purports I diffent alfo, becaufc it does not F^^""y ^1 J i conckfion on a fubjea, or equitable. ^, ^^^ ^uh as little prolixity as poffiblc. the I will proceed to explain, in aetaii, u different grounds of diffent. bv the 6th article of the treaty of amity, ,ft I aRree explicitly that the Boaid, by m^^^^^ « whether of principal or arfaithoriz'ed to Lnf.der -d dete- e all c^^^^ ^^^^^^^ ^^ .^^, t; i«/.rjy2 ;" and that ^^ffjl'^^'f, j bts" in the treaty of peace to eM the technical interpretation of he word d ^^^^ ^^ ^^^ ^^ her penod .-Or -"^'^^^tth: at^r'f intS in ar/cafe, where it may be deemed juft IVSlTthat it (liould be i>aid ^^ ^^g^,,,, ,hat the fame word ■Rut on the other hand it s 5^^^7 r, -.ber dur ng the war, or toi any . ? uT" Les not neceffarily ««c/«*^^/nierelt, eith^^^^^ « full value" in the ( rj ) iu„ u. vu. ....... , bccaufe the allow?.nce or denial is, hy the reacy, nude to depend on Uie merits znd dr.umjlances of each cale ;— ■laim but of each cafe or item of debt coutained in, and conftituung formable to the fubmlffion In the treaty terma of the treaty, n^ Not of each claim bu '^."J'" mV«t^^^^^ will require us to deny intereft in a variety of cafes, in fome daring the war, in others for a longer term, and m others alto- pcthe Vill b. evident on a conf.deration of the nature, the meaning and cha* faaer of intercll :--From this conf.deration it may alfo refult that, in fome calcs. ♦K» «,i/.n//» intereft ought to be awarded. ^ , • The word - Interest" has not always the fame f.gnif.cation :--0r rather, ,t 1,., /.I different .nd dirtinft f.gnifications. It fomctimcs means < the h.re of mo- ^rneT''f" wages for the ufe of money :"-This was the ancient acceptation o he tJrm and is the acceptation in whica it is ftiU ufed by writers on the law o nature a^d of nations, and on political economics :--This is its proper import Xn it is ftipulated to be paid on a loan, in which cafe it may be delcnbed as of ISoSioa i?n" becaufe it is the effential confideration of the contraft, and is em- *{haticJv ^2 of the debt .-It is a dirtinguilhing feature of this fpecies of interel , fhat it lyte owing I fore the principal is due, as in contrads for money payable at 1 Hiftant dav but bearing a prefent annual ifiterclt. in the X fi.nification if the term, intcrrfl is fynon.mous with dama^^cs :^\l is damages for t - breach of contract, or more properly ' it is the ..mm.« ..^r.- Tlm^r v here the contraft is for money" ^ Tr. Lq. hl>. 5 ch . I. s. i. Ihi 1 Tcciptnif^^ i" municipal jurifprudence and \thchX"ppUes to that vad variety of the common tranfaaions between •Sua -in w ch the failure of punftuality is a ground of comp aint in the rntts of ivmce :--In th>. fenfe it partakes efTentially of the nature oidama^^cs m !/frcm which it is only diafnguifliable in this that it is meafured by a. si rt-e "fixtl by the law to a certain portion of the fum that is due for r^hlZce of a year, and proportionably for a longer or fliorter time. ' i Do,.. A //' Bui co^formably'to the general cha. after of da.n.s^s and contrary tt n ribute of the fort of intereft firft defcribcd, it can never accrue ""^'^ there the ^^-"bute t performance of his contraft-and, like di- ^"' i it i d"p nl^^^^^ circumVnces of that default ; for, when it fl.all mages, It »;dependen\0 j , . . ^^^^ .^hen it fliall be r.^ro;.., or ?LitLnt determined " acceding to the mems of the feveral cales, due ro- ",rd beinc * had to all the circumftances thereof. , • • r , „.\n- - ^^ In clffs to which the JrJ fenie of the word applies that is in caf s wnctc Int i^ftt ftHa obligation and forms a fart of the debt I agree that the ^^ intereft nnift be paid, as well during the war as for any other penod. I tn k ^e la V of nations! and the ftipulation of the treaties equally produce this ciTca. n ( 38 )• that thou'h the ftate of war fufpcnded the remedy it did not fufpend the right :~— - I incline to think that the fame 'cccptation of the term will ajjply to thofe cafes ot - fiyedally, for whatever reafon given, which exprefsly bear interell on the face of the injlrtimeut, although on this fubjeiSt I defire that I majj not be confidered as con- . eluded by this intimation, as the enquiry does not, at leaft jf/, appear to be effen- tially conneded with this argument, in this cafe : — The quelHon of intereft, ac-^ cording, to the ufage of a trade is. AUl moic doubtful, and I decline at prelent giving. aay opinion upon it. But as to all other kinds of debt which may be the fubjeds of claim, it does not feem to mcto ad-riit of a doubt, that intereft, during the war, cannot rightfully be, awarded. It is already {hewn that intereft, in cafes of every other defcription than ■ thofe juft enumerated, being in the nature oi damages, can ow/y accrue on the default ■ of the party It cannot be pretended tloat there is a default, where, from circum- . itances beyond the coniroul of the party, payment is> rendered impradicable :— Ncr, can it be denied that a (tate of tvar between the nations of the creditor and debtor \^fuch a circumjlance. This is a pofition altogether independent of any fuppofed diftinJlion grounded on the nature of the war between the United States and Great Britain, as different from ordinary wars, which has been contended for in the an-, fwer, and fo elaborately combated in the refojution ; and. it is equally uninfluenced by any confiuerations deduced from the merits ( ' the. con te ft, or from the Icgifla-, tive ads- pafied on the on o fide or the others I agree, that in executing a treaty,, defigned to terminate differences between the nations, " in fuch a manner as. •* without reference to the merits of their refpefti.t complaints and pretenfions^ '* may be beft calculated to produce mutual fat^isfadtion and good.upderftanding," thefe confiderations, on either lide, are irrelevant and improper : — But it is zneceffa-^ ry incident of all nxxarsy to intQrdicfb-and cut off all comraunicatiqn between the indi-, vjduals of the hoflile nations ; and this \s,. completely effec1:ed without any prohibitory, laws on either fide. It is of no import, therefore, what thofe laws were, or en which fide aggrefTion commenced — it is fufficient to the purpofe that the nations were at open war, and that their people refpeiflively could not lawfully have inter-. courfe with each other. From this ftate of things it is inevitably refulted, that the debtor was prevented by the intervention of a circumftancq, not attributable to hin% as fault or laches, from compliance with his contract ; and that if thereby the cre- ditor has fuftained a lofs it is damnum abfque injurtay and he is not entit,l,:d to re? paration in damages from tlie debtor. If this obvious inference from undeniable principles could need any confirmation* it is to be exprefsly found in the letter from Mr. Hammond ta the fecretary of State, complaining of infradions of the treaty of peace by the United States : — On this very fubje«jt of intereft during the war, he thus writes, « In one State «« ( Maffachufetts Bay) where great property was at ftake, jujlice has been liberally ♦' difpenfed, and, notwithftanding a particular regulation of the State warranted ** the dedu(aion of that portion of the intereft on the Britifh debts which accrued " during ( 39 ) « during tlie war, the courts, in conformity to the plain terms of the treaty^ have ♦'admitted and direded the quantum of the demand to be regulated by the original «' contract and where the contratl bore interej, or the cujom of the trade jujifed the « charge the full intereft has been allowed to Britifli creditors, notwithftanding th^ *' intervention of war :"" — This is conceived to be a formal and exprefs admilfion, on the part of the Britifh government, that the payment of intereft during the war, in cafes " where the contraft bore intereft, or the cuftom of the trade jui'ified «« the charge, was all that was required by '♦ the plain terms of the treaty of peace" and that in cafes of every other defcription, there cannot be a reafoiiable pre- tence to claim or demand it. In truth, the books of authority on natural and civil law, as well as on the laws of England, leave no- room for doubt on the fubjea :— A few, and but a few, are here cited. « All the forts o( reparation of damage zre reduced to two kinds ; one of which *' is barely called intereft — and the^ther cofts and damages." I Do. Tib. ^. tit. 5. 2 Tr. Eg. lib. 5. ch. I. J. I. ** Jnterefi is the reparation of damages which is due from debtors who owe Tarns " of money, and who fail in tlie payment thereof." I Ih.lib.$. tit. ,^. § I. « 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 efFefl, which *' depends on the nature of the credits and the circumftances. Ibid. «' In cafe of accidents which happen without any fault of the party, he will not « be liable to reparation of damages, by the rule that nobody is to anfwer for acci- «« dents, except there be fome fault on their part." 1 Do. ubi.fup. 2 Tr. Eq- Lib. ^ ch.l. § I, " By damage we underftand any lofs or diminution of what is a man's own, oc- « cafioned by the/at*// of another :— And by a fault we underftand every unlaivfut ad or omiflion." ^ , , r I Ruth. c6. ij. § 1. If a misfortune has happened without the fault of either party, ** there^Is no *' reafon to throw off the lofs from one innocent man to another innocent man ;'* — In fuch cafe potior ejl conditio defendentis, 3 -Sarr. 1357. " Damages :*i: ( 40 ) « Damages are in l\\c pcuuf of the court, and therefore they ufually order thftn <« as they fee convenient." a Tr. Eq. Lib. 5. ch. 1. § S' '^'^^ "^^"^ ^"^^ ''^ ' illuftrzitc this pofition are all of interfjl. «' The inrtances in which the court has exercifed its difcretion, in allowing a «' grea.er or Icfs rate of intereft, are too many and variouG to allow of cnuinera- " tion." „. , . Ibicl in nolu. « It would be unreafonable that thofe things which are inevitable, which no in- «« duftry can avoid, no policy prevent, (hould be conilrued to the prejudice oj auy " perfon in whom there is no laches." „ ^ r '■ •' I Poivsll en Cont., 44O . Th^re might be added a great many more authorities of the moft unequivocal in -t ; but thefe are deemed fuflicient to prove what has been advanced. od Th- claim in which this refolutlon is offered, is a mod unfortunate one for the eftablilhment of an affirmative rule on the allowance of intereft durwg the ivar, or even for any period whatever. Trom all that yet appears, and fo far as a judgment miiy be formed from the cbira and fchedules which accompany it, there is not a fingle item which can be faid to come within that clafs of contradls, that carry intereft of the firft defcnption • I have mentioned ; that is, where the intereil is a part of the Mt, cither by the terms of the contrails or even by the ufage of trade The it-ms are principally of accounts which have been incurred in the courfe of 4 r^tail dealings in the State of Virginia ; and which, fo far from being entitled to . intereft during the war, are not, either by the law of England or America, entitled 10 'ntereft at all as a matter of courfe :— And e^cn if it Ihould be denied, that the intervention of war is an excufe for the debtor, it cannot furely be pretended that it gives to the creditor an accumulative right which he would not other wiie have polfcfled. It is aflumed in theanfwer on the part of the United States, that debts of this defcription have at no time carried intereft in Virginia ; and the contrary has not been ailertcd either in the claim or reply. And the acknowledged do^rinc of the law of England muft, on every prin- ciple of mutualit; , preclude aU demand of intereft mfuch cafes. It is a general rule of the Englilh law, as well as of the civil law, that Intereft fball not be allowed on prercfore hoped that the animadveriion necelTarily, and with reluiHiancc, conveyed by the rcfi>lution, would never be afcribed to any perfonal feeling on the fubjed. It cannot bf for- gotten that much remonftrance and expoftulation were employed in vain to prevent all occafion for any fach refolution ; and fufficient time has elapfed (from the occurrence of circumftances) to prove the deliberate conviftion on wliich the motion proceeds. The mafs of b'ufinefs now at length brought before the Board will demand a fteady courfe of uninterrupted proceeding ; and amid(t the variety of cafes which maft occur, either in the eftablilhment and application of general prin- ciple, or the inveftigation of faft, it is impolnole to expecft that unanimity will in every inftance obtain ; even with the bell diipofition in the members of the Board to refrain from all frivolous difTention or immaterial controverfy. The objele " to thofe concerned, would add a duty to their taflc which he ueJty has not impofed. They are not to court favour, but to do juftice; nm to '{ 49 ) confult the wi'flics, but to 'decide upon the rights of parties. The objea of their funftions neither requires, nor can admit of management or addrcfs. They haVe engaged, as they (hall anfwer to their own confcicnces, that their principle's fhall be pure, their dilig«nce exa^, and their deliberations fuitablc to the fubjcd. Within the fcope of their office they can have no other care; and arc entitlecf, without folicitude, to expedl, that whatfoever they determine to be ju(l, will be " acceptable.'*^ The faid refolution having been read, Mr. Sitgrkavks moved the following rcfolution, and was feconded by Mr. Fitzsimoto : The refolution heretofore prelented for con fideration on the fubjed of the diffem in Cunningham's cafe, and the protefl in Dulany's cafe, being moved this day for decifion, the commiflioners named on the part of the United States moved, that it ^be refolved, that it is inexpedient that any queftion be taken upon the propofed refolution. ' • The queftion having- been put upon the faid motion, the fame was negatived bv ■«he Boar4. 'It was then propofed to put the'-tfueftion on the principal refolutibn, when Mr. Fi TZ SIMONS read the following paper : The-commi!llfoi!(irsfratTiid onthe part of the United States, fincerely defirous ofexecuting with juftice and Impartiality and in a manner conformable to the moft liberal principles of equity and good faith, the important duties affigned to them by the treaty of amity : — And folicitous that every thing fliould be avoided in the proceedings of the Board, incompatible with that harmony and moderation, and hat mutual deference and reJ^eft which ought to.prevail among perfons engaged in the acHuftment of national differences, have obferved with great concern and regret, the refolutioDS jiropofed by Mr. Macdokald on the 23d of Odlober, for fubfequent difcuffion and decifion by the Board, in relation to the proteft in the cafe oiDulany, and the diflent in the cafe of Cunningham and co. and they had hoped that on more mature refledion, a fenfe of propriety and decorum, and a defire to conduft the bufinefs of the commiffion to an iflue honorable and fatisfadory to all parties, would eventually have prevented a perfeverance in propofitions not neceflarily or eflentially connedled with the duties prefcribed by the treaty. Beir^ /rtunately difappointed in this hope, and finding that it is intended to infift upon a difcufEon and decifion of the propofitions referred to, they owe it to the individual member whofe a<5ts are the fubjefts of thofe refolutibns, to their own charafter, and to the honor of their nation, to prevent, by the only method in their power, a proceeding not juftified by the authorities vefted in the Board, inju- rious in its form, exceptionable in its fubftance, and in its confequences deftru(ftive of*he means, by Vhich alone the objefts of the commiffion can be honorably or impartially efFefted. <5 They ( 50 ) They deem It to bo indiriJUtaLly true, that neither ttio t.-rnib nor the C\m\t of the fixth iirticle of the treaty of amity, give any authority to the Board to fit in judgment on tlic a(5ls of its nnembcrs, or to hmit or i^>rcfcribe the fevcral cxercife oi' thiiir indi- vidual duties, and tliey cannot by any indireijl or impHcd acquiefceocc confcnt, that the Board ftiail denounce with its cenfures,. that exercife oiinUiyidaal difcre- tion and opinion which is beyond its controiJ; orby afluraing this power of ceniuvc. in any degree affctft or abridge the pcrfefl freedom and independence of individual fentiment and conduft. Much lefs can they confent to propofitions, which be/ides the defcdt of authority already fnggettcd, arc highly orftcnGve in their. tarns, and which direiftly and unequivocally rcile*^ on the integrity of one of the commiiTioners^ on the part of the United States. They cannot conient even to the difcuffion of Aich propofitions ; fur merely to difctifsthem would be, in a great degree, to fuffev U»e indignity, aad to partake of the mdccoruip. The conMnifiioners named on the part of the United States, therefore, with much icgrct for the occalion, but with the moil perfect convi«5tion of their duty, are compelled to withdraw from the Board for the re.dbns ftated : But they exprefsly declare, that they are fincerely difpofed to proceed with the utmoll diligence and fidelity in the proper bufmefs of the commifTion, and are ready and v«lling to con- ftitutc the Board at all times, for the purpofo of examining and deciding fuch claims as have been or Ihall be duly preferred, and are fubmitted to itaiiccilioB under. the tif.uy of amity, commerce ana navigation.. THOM.'VS FITZSIMONS. a. SITGREAVJIS. ?/fr. FiTZsrMONs awdMr. Sitcueaves ilf«i withdrew* BatraHed from theprdcvetUiigi^fthe £oapd»> 0«taMtssTO Horn's ^ ( 5» ) Commissioners' OfficEi \^lh Februaty, 1799. pRHSEMTi v>. MACDONALD, M;. RICH, Mr. FITZSIMONS, Mr. SITGREAVES, Mr. GUILLEMARD. In the Cafe of the Right Rev, Charles Inglis. The following Tcfolutlon having been the fubje(5l of full difcufTion in the Boai« «' been given in favor of fuch rights :"— While the following might at fome future period, before the final breaking up of the Board, be the terms of reprefentation on the part of the creditor : " The remedy before the Board was formerly ftoppedrfi its courfe by the then recent Iblvency, or difcovery of the debtor or of his effeas, and by a change of decifion at law : but now again it is reftored by the infolvency which has fince occurred of the fame debtor, his having again difappeared, or -• Uie courfe of judicial opinion and praftice having returned to its former channel ; —or it might be faid, " the creditor has fince gone through the whole courfe of «* law and legal remedy in vain, and now again appears before the Board, to claim compenfation for all that he has fuffered, including the lofs which has been incur- - red through the coftly experiments he has made :'»— And thus, as every tribunal of iuftice, ordinary or extraordinary, by arbitration or at law, mujl afford fxtfficteni time and opportunity for fubftantiatiog, by the bed evidence of which the cafe is capable, fuch averments, as according to the i^iocipks by which they^are governed, are material and relevant, it never could be known when the courfe of htigation and of legal execution would terminate ; for the period muft for ever recede from thp purfuit, and elude the hope of promifed fatisfadion ; whik under the operation of a treaty of «w/.AL -u . .o\.... Ph'ladelphm, 2^ March, x 799. Present, Mr. MACDONAti:), Me. rich, Mr. SITGREAVES, Mr. OyH.fEMARD. In the Cafe jo/ HiAumjR^i and oikerSy Emcutors of Mary Hanbury. \jRrDER)ED*-^niallhe general ngent for claima.ns make up and lay before the Board "an account of the principal fum and intercfl claimed in this cafe; apd that the agent for the United States prepare and Jay before the Board, a draught- 'of o ( 5<5 ) • jof an afTignment of the debt in queftion to the United States, to be fettled and direfted by the Board purfuant to the treaty; and that the faid account and draught . refpedtively be laid before the Board within eight days. Ex*raBed from the proceedings of the Boar(l. O. EVANS, Secritart. : IntheCafe oftiAiiBVKY's Executors. A STATEMENT of the debt in this cafe having been prefented by the general agent for claimants to the Board, and by their order of the 24th ultimo, leave having been given to the agent for the United States- to fee andmake objec- tions to the fame if any he had within eight days In purfuance of the leave given by that order, the agent for the United States objedls to the ftatement of the debt exhibited by the general agent, in as much as that ftatement is unprecedented in the courts of England as well as America, whether of law or of equity and is unjuft. The ftatement is as follows : Dr. The Utlted States to the Executors of Mary Hanhury. Sterling, 1793. £. s, d. Dec. ai. To the penalty of Stephen "Weft's bond, dated 2 lit Dec. '773, payable with intereft from date, the faid intereft at 5 per cent, having equalled the con- dition in twenty years, - - - - - - - - 74c o o 1799. , ' ' 1''U ■' , March ^l. 1 five years three months intereft on 740I. - - . 194 5 o v.\ Additional intertft on 740!. flsrling until award,- '-- "^^ 9^ ^ 5 o (Errors excepted.) WILLIAM MOORE SMITH, \ iu I ' ! General agent, ■ ■ This ( 57 I'hls ftiiicmcnt of the general agent is formed, by adding tlie iiitcrcft to the prln* -ipa! at the expiration of twenty yeais from tlic date of the bond by wiiich time the arr.ount exprefl'ed in the condition and the intciell on that luni becomes equal to the penaky. The penahy is then coiifdcred as the debt due to the claimant, and on uhich intercit is calculated to the time of the award. It is a fettled rule in the courts of equity in England, that intercft cannot be calculated beyond the penalty of a bond. So late as 1792 the rule was confirmed by Lord Thuilow on exceptions to a nuflcr's report in two cafes. TVw, vcrfus ihc Earl 'J IVin.'erton, and Kti'ighl, 'vsrfus ]\bLean, 3 Brown, Chan. Rep. 4B9. 496. As thefe are the lafl cafj-; in the equity courts of England on the fubjeifi-, and as the c.ifcs which hadj)rcceded thefe are well examined in the arguments of counfel, the agtnt for the United States will do no more than refer the Board to them taking it for granted that the rule is now fettled. in cliancery on tiiis fubicct. Ihe agent for- the United States acknowledges, th.Lt a different prlriciple pre- vails in the courts of common law. There the penalty of a bond is merely a lecurity, and where it is not fufficient the plaintiff may recover damages as wcH as the penalty. Bat t'l ^fe damages arc interelt on the fum in the condition of th. hond, not formed from a calculation of interell on the penalty. In Elliot, verfus Davis, Bunb. 23, intered was decreed to be paid though it exceeded the penalty. In Lord Lonfdnle and others, "vcrfus Church, the court were of opinion that diUH'agcs for more than the amount of the penalty may be recovered. Thefe cafts at lazVi fliew that interelt may be recovered beyond the penalty of a bond ; but the intereft fo reco^ertd beyond the penalty, is interefl: on the principal fum ex^ prefied m the condilion of the bond, and not interefl upon a new cajatal, compounded of the old capital, and intereft thereupon tx) a certain day as the creditor fliall at his mere pkafure determine. According to the civil law, intereft upon intereft is not allowed. " Whatever " dela,y there may be on the part of the debtor to pay the intereft and v/hat- '* ever may be the caufe of it, he is never bound to pay fecond intereft for *' the interefl which he owes. And the creditor cannot accumulate the arrears " of intereft with the princijxil fum in order to make the whole a capital which '* may produce iutereft ; but the fame will be reduced to the amount of the princi- " pal fum which is capable of producing intereft." ift Domat. 399. The agent for the United States does not confider it neceflary at this time to urge further reafons to the Board in iupport of his objee*lions to the ftatement of this debt on behalf of the claimants. The ftatement he feels confident will not be received by the Board in as much as it is not authorized by the rules of the common law, and is repugnant to thofe principles of equity and juftice which muft govern the Board in their determination on claims. JOHN READ, JuN. ^d May, 1799. ^getit general of the United Stales, .*: m. H In ( 5'- ) In the Cafe ^Hanbury's Executors, J\S tlie Board in rendering their awards will certainly decide as equity and juftice fliall appear to them to require, the agent for the claimants will make no obfervations upon the cafes referred to in the remarks upon the calculations of intereft in this cafe. Their confciences being fatisfied from the merits and circum- flance of any particular cafe, that even compound intereft is not too large a meafure of damages, they have a right to award it, and no rules of courts in either country are to be abfolute and binding upon them ; nor can the cafe of creditors voluntarily delaying any demand for a great number of years be applicable to the cafe of per- fons prevented from recovery by the laws of the debtor's country, kept in force con- trary to pofitive ftipulation. There are two other modes of calculation : 1 ft. Simple intereft on the condition from the date to the award. 2d. Simple intereft on the condition from date to the judgment, and then inte- reft on that fum for which judgment ought to have been rendered. Intereft is univerfally allowed on judgments. The general agent for claimants is ready to make a calculation on any principle adopted by the Board, to which the claimants are bound to fubmit. WILLIAM MOORE SMITH. jot/} May, 1799. Com MISSIONERS { so ) Commissioners' Office, Philadelphia, 10//1 May, 1799. Present, Mr. MACDONALD, Mr. RICH, Mr. FITZ SIMONS, Mr. SITGREAVES, Mr. GUILLEMARD. In the Cafe of Hanbury and al. Executors of Mary Hanbury. r i. H E refolution a^-l order formerly propofed on the refufal of the agent for the United States under M.c direaion of the attorney general to comply with the urder of the Board in th: cafe of the 26th day of March lall, having been moved by Mr. Macdonald, with the concurrence of Mr. Rich and Mr. Guillemard. Mr. SiTGREAVES movcd that the following be fubftituted in lieu thereof: The Board having confidered their order in this cafe of the 26th day of March hi\y and the reprefentation of the agent for the United States thereon dated on the tith and read on the 12th ultimo, together with the letters from the attorney general of the United States to the faid agent accompanying the Hiid reprefentation. ORDERED — That the faid reprefentation and the letters accompanying the fame be entered at length on the minutes. ORDERED — That the general agent for claimants do ])rcparc and lay before tho Board, the draught of a releafe or aflignment to the United States to be fettled and direded by the Board purfuant to the treaty. And the qucftion : ring been put on Mr. Sitgreaves' motion, and Mr. FnzsiMONs and Sitgreaves only, having voted for the fame, the faid motion was negatived. —Whereupon the quefHon having been put on Mr. Macdonald's motion that the refolution and order propofed by him fhould be paffed— -the fame was pafled as follows : — viz. Mr. jSo "' Mr. FiTzsiMONS and Mr. Sitgreaves diflunting. The Board having confidcred their order, in this cafe, of the 26\h. d^y of Maffl Kta, whereby it was ordered that the general agent for claimants, flioiild make up and lay before the Board an account of the principal ium and intcrefl claimed, whicli has been done accordingly :' And the treaty having provided in favour cf the United States that the fum awarded (hould be paid on condition of their receiving fuch a releafe or aflignment as the Board (hould direJt ; it was alfo or- dered for the purpofe of enabling them to carry the faid provifion into efFeclin th.: manner bed calculated to prevent all difpute or objeaions to the form and agreeably to the general praflice in bufinefs, that the draught of an aflignment to the United States, fliould be prepared by their own agent. And having alfo confidcred the reprclentation of the agent for the United States dated on the i ith and read en the 12th day of Ajiril lalt, not applying for any review or alteration of the faid order,, but dircdly and peremptorily in the (irll: indance refufmg to comply with the fame, which rcprtientation is in the following terms : — " The agent for the <« United States not confidering it as part of his ofBcial duty to prepare draughts of *« affignments, which when complete and approved of by the Board, were to enti- « tie creditors to the benefit of awards made in their favour, fubmitted that order " to the attorney general of the United States for his opinion and diredions. Thofe «< diredions the agent for the United States has (ince received which exprefsly re- «< quire him not to prepare for the creditors the draui^hts of the alignments they are «« execute, the fame bcipig no part of his otVicial duty. The agent for the United '■' Slates accompanies this note with copies of two letters from the attorney genera], " which contain the agent's direflions and the reafons which influenced them." And which direftions and reafons are ilated in the faid letters from the attorney general as follows :— " Being perfuaded that it is not your official duty to perform " this a(fl and more cfpecially that a jujl regard to the intereft of the United States " requires you to adopt a proper rule of conduift to be obferved in all inflances of " this kind, I think it nccefTary to fay that you are not lotind to comfy ivltb the ' ". order^ to which 1 have referred, or in any other cafe that at prefent occurs to " my mind, to prepare an indrument of aflignment, and that you ou^^ht not to do it. " Since the claimant is to give the releafe or aflignment he is bound to prepare the '* draught and to lay it before the Board for their approbation ; after this is done it " the Board before they decide upon the draught choofe to fubmit it to your confi- * deration for the purpofe of /fwuw/'w^ if any reafunable oljeilion can be made to it, it will be your duty then to examine it, and to make known your obje(5tions it any you fliall have." I am fully convinced that the Board cannot Impofe this duty of nfcrivener of a^ign^ents on any officer of the United States who derives his authority not from the Board oi the treaty, but from the prefident. In the treaty (he United States have not undertaken to draw the affignments to be given by the creditors or claimants and it does not comport with my ideas of the honor of the United States to admit that the Board may order an officer of the United States to perform a fervice, which on their part has never been ftipulated to ( ^» } " to be perfomicd by them, nor da I cnnce'roc that it ifidcrcd the reprefentations of the agent for the United States rcfpe>5ling '^hc impcrfe(5t llatemcnt of fpecial circiimftanccs on the part of claimants, and ot nich he juftly complains, as preventing him in many inlbnces from making full anfwers to the whole matter : ORDERED — That the agent for the United States make anfwer in every cafe with as much difpatch as poifible, and in whatever order he may f.nd convenient upon fuch general objedion afFeding the whole cafe as fuch cafe may prefent — Aa. for example, the objedion that there was no lawful impediments or that the claim- int does not poffefs a charadtr entitling him to claim. From which order Mr. Fitzsimons and Mr. Sitgreaves diiTented. JUstradeJ from the proceedings of the Board. G. EVANS, Secretary. Commissioners' Office, Philadelphia^ l^ih May, 1 799., Present. Mr. MACDONALD, Mr. RICH, Mr. FITZSIMONS, Mr. GUJLLEMARD. In the Cafe o/'H anbury 6^ aJs, Executors of M. Hanbury. A DRAUGHT of a releafe of the debt in this cafe prefented by the general agent for claimants purfuant to the order of the Board of the icth current, having been read, ORDERED — That the agent for the United States have leave to fee and make objeaions to and propofe alterations on the fame within eight days. Extraded from the proceedings of the Board. G. EVANS, Secretary. Commissioners' Present, CoMMissioi^ERs' Office, PhiJadchhla^ I -th May, I 7yy. Mr. MACDONALD, Mr. RICPI, Mr. FITZSIMONS, Mr. SITGREAVES. Mr. GUILLEMARD, /// the Claim of W. R. Lidderdale, Executor of Jou.N LiDDERDALE/or the Debt of Thomas Man Randolph. XvESOLVED — That no legiflative aft having been pufTcd to repeal iIk aft of aflembly of the State of Virginia, made in the yo.ir 1777, whereby it \va3i ena(5ted, that it fliould be lawful for any citizen of Virginia owing money to a fuhjea of Great Britain to pay the fame, or any part thereof, into the loan office of the State in difcharge of the debt, or to prevent the operation of payments into the loan ofEce purfuant thereto againft the right of the BritiHt creditor, as fccured by the 4ih article of the treaty of peace ; — But on the contrary, the repeal of •* all fuch afls or parts of a^fls of the legiflature of the faid common- *< wealth, as had prevented or might prevent the recovery of debts due to Briii/!^ ** f^i^'^^^'h according to the true intent and meaning of the treaty of peace,'' havin" by the provifo in the aeT: of aflembly pafled on the 11th day of December 1787, been exprefsly fufpended, on a condition which was never removed : — And the claimant having brought his acflion in this cafe, in the circuit court of the United States for the diftrift of Virginia, in which the defendant pleaded payment into tlie loan office, purfuant to the laid aft of afl'cmbly ; — And the faid circuit court of the United States (eltabliflied by the ad commonly c.illed \\\q judiciary a£l, paffed in the year 1789, under the prefent conftitution of the United States) having in the cafe of Warre, Executor of Jones againll: Hylton in June 1793, determined on full argument and confideration, that f"ch paymencs into the loan office were good againft the Britifh creditor, notwithftanding the faid 4th article of the treaty of peace and the 6th article of the faid conilitution, declaring " all treaties made " under the treaties of the United States to the fupreme law of the land," the recovery of the debt in queftion was in confequence of the payment into the loan office in this cafe made, impeded by the operation of the faid a<5l of aPcmbly, the effba i„-, ( 64- / cffcfV Nvhc.cuf vas Co Ictilca and declared by the faid ciiCuit co.u. of the Umtcd S ucs und^r th. prcfcnt conlUtullon, againll the r.ght o th IJ.m h crcduor tc reco erin fuel, cafcl; und which docihou remained the evidence of the law at the kte cfthe treaty of Imitv, and till February . 7 theVleadnigs before the Bbard, that the children o the }ri-dl" 3 Ranuolph/or others, are in pofTeffion.-And further that it :■ chdmant w.-re ftill bound to commence ,nd go.through the or^,«..v courie of u - c a proceedings for the recovery of the debt in quefhon, it would not be in- un- bent en hi^' fas urged in this cafe) to " exhaull e.ery rncans of payment which « thefaws o the country furnilhed"-And in particular, that it would no be incum' e^t on him, as urged in the cafe of Startfield, to which the argument in. h sTafe efers, t^ inftitufe proceedings in chancery o; "^^^^^^-^ J'^^f^l^l'^lt of trvinc whether conveyances executed by the laid Fhomas M. Randoli^i, now deceafed, dur ng the operation of the laid lawful impediment, could be let afide 1 fraudulent, luch procee-hngs in chancery, or otherw.le, for the difcovery and correafon of fraud,^not being in ihe ordinary courje of jucUclal proc.d„^s for the recovery of debt, iithin the defer iption and "?---g ^^ ^^^^Tr /"Ify-T t^"^^ o^e^i^afet "ccaf.oLd by fuch infolvency of the debtor - 'TohercUs. as would eaually have operated to produce fuch lofs, if the ;. ?;id imjernlent had not e.-Ied/' « or by the manifeft delay or negligence or «•' -wilful omiffion of the claimant." From which refolution Mr. F.tzsimoks and Mr. S.tgreaves difrented ftadngTheir intention of placing on the minutes the reafon of their diffeni at a, futiire day. Extraaedfrom the proceedings of the Board. G, EVANS, Secretary? _. IfK \ ««> ..*•• In the Cafe of Han bury and cihr:rs^ Executors rf Mary Ha is bury. A DRAUGHT nf a releafe of the debt in this cl.iim to the United States, having been prefentod to the Board by the general agent for claimants and leave having been given to the agent lor the United States by the order of the Board of the I jth, inftant, to fee and make objcdions and propofc alterations to the funic within eight days. The agent for the United States in purfuance of that order obfcrves, that the draught of the releafe fubraittcd to the Board by the general agent for claimants, is in his opinion defcdivc. I ft. Becaufe the draught does not particularly defcribp the debt by fuch words, that it may be fpecifically known and diftinguifhed from other debts, for which purpofe the inftrument fhould contain an apt reference to the evidence of the debt, if there be any fuch evidence, which alfo, if in pofleinon of the claimant, fliould be delivered to die agent for the United States for their ufe^ 2d. Bccauff the draught contains words of acqinttanc only, and if the claimants have any right againft the debtor to the debt, concerning whidi the claim for com- penfation has been made, fuch right is not transferred to tlie United States. Thouqh the defence of the United States was in this cafe placed on the ground that tlie original right of the claimants wa^ extinguifhed in confequencc of the agreement of the parties ; yet it is poflibly otherwife. It is fuppofed by the agent that the in- ftrument of releafe to be given by the claimant in purfuance of the treaty fhould operate not only by way of difcharging the United States from the future demands of the claimants but by way of palling to them the intereft and right whatfoever it be, of the claimants againft the debtors to the debts concerning which the claims are made. A perfon infolvent at one time may become folvent afterwards, and the United States paying the awards are entitled to the poflibility, however fm^il, o£ obtaining reimburfement from the debtors at a future dav. Thefe objeiSiojQs to the draught are refpeflfuUy fubmitted to the Board. JOHN READ, JuN. ylgent General for the United States, 20th May, 1 799. Commissioners' ( 66 ) Commissioners' Office, Pljilaclelphia, 2 2d May, 1799. Present, /is beforf.. in the Claim 0/ Clark, Adminijlrator r/IlussEL, for the Debt of J. Dorsry. Resolved— That no Icglflatlve aa having been pafTcd to repeal the a^ ofafTcmblyof the State of Maryland made in the year 1780 thereby, sfter enaaing « that all debts and agreements thereafter made fhould be paid or executed agreeable to the bond, promife. or agreement, and the intent and ir.amng ot the "parties, any law to the contrary notvvithftanding," « the debtors of creditors wao « had not become fubjeas and rcfidents of fome one of the United States, were authorized to make payments into the treafury of the State in difcharge ot the debts due to fuch creditors; or to prevent the operation of payments into the trea ury rnrruant thereto againft the right of the Britifh creditor as recured by the 4th article of the treaty of peace ; and neither the general aft of afTembly pafTed in May i 7S7, declaring the faid treaty « to be the fuprcme lav/ within the State, nor the OtH •u-tic1e of thr conlHtiition of the United States, declaring all " treaties made under *« their avthoricy to be the fuprcme law of tlie land," and ' binding on die judges " in every S-ate" as fuch, having the effca of fuch repeal or to prev-ent the operation of fuch payments, as appears, not only from the uniform courfe of dec.fion. ot the high court of appeals, being the higheil court ot the St.ue, certified to the Board in the cafe of Haubury, by the certificate of the proper officer, dated the 19th day of Auouil 1707, and particularly the decifion of the faid high court in June 1795, in thetafe oUlarrjoood agawjl this clamant, adjudging fuch payment into the treafury to be good againft the B-itifn 'reditor, but alfo from the judgment of the circuit court of the United States, tHauiinied by the ad commonly cA\tAih^ judictary ad, pafTed under the prefeniconaitution, in the year 1789, where on full argument and confidcration it was determined in the cafe of Warre executor of Jones againilHyl- ton, in Tune 1793, that payments into the loan office ot the State of Virginia (in their nature fmiillr to payments into the treafury of the State of Maryland) were rood againft the Britilh creditor, notwithftanding the faid treaty of peace ; the faid decifions of the highcft court of the State, and of the circuit court of the United States, under the prefent conftitution. againft the right of the Britilh creditor o recover in fuch cafes, remaining the evidence of the law at the date of ^he r.a^y of amity, and till the reverfal in the fuprcme court of the United States in 179,, of the faid judgment of the high court of appeals of Maryland, m the cafe of llar'woa ogalnjl this claimant as a cafe precifely iimilar in its principles to that ot U^arre eJcutor oi Jones, againjl Hyhon. refpeding p.ayments into the loan office of Virginia, in which the judgment of the circuit court of ti;e United States had been rcvciTcd in Tchrv ary i'j(j6 ', and the faid Jo'.n Doifcy huving hc-xn cVS- chiirgtd as an inrolvcp.t debtor on the l itii day ot" l>:i-.emb.r 1788, as :!p|"icars from the record be!b!c the Boiird, the faid I'.cl of afilnibly v/ilh the payment into the ticafury in t!r.s ciife nade purfuant thL-reto, operated within tiic meiinin^r and defcription of the treaty of amity, as a hiwful impediment to th^e recovery of the fiiid debt, to the extent oi the i lid paymerit into the trealury ; referving tlu- qucilion, whether th.e faid lawful inipedirncnt lb operated bevond tl:e faid luiymer.t into th'.: treafury ; and further — Referving all objections to the evidenee and amount of the faid debt, and the full cifed of all facls and cireumihinccs to (hew that tlie lofs " was cceafioned by fi: 1) infblvency of the debtor, or otiier caufes as -.vould ♦' equally have operated to produce luch lofi, if tiie fiid impedimtnt had not cx- " iikd, or by the manifefl: delay, or negligence, or wilful omiliion of the cLumani." From which refolution Mr. Fitzsimons and Mr. S'tgi'.caves dilTented. ExtraSed from the procccd'm^s of the Board. G. EVANS, Secketat.v. Present, Commissioners' Office, Fh'iladclphiai izth June, 1799. Mr. MACDONALD, Mr. RICH, Mr. FITZSIMONS, Mr. SITGREAVES, Mr. GUILLEMARD. Mr. Macdonald again moved the order propofed yeflerday — the fame was pafled as follows ; V_/RDERED — That the agent for the United States inform the Board whether he is in the courfe of complying with the gencial order of the 14th day of Mav X* ♦ ( <58 ) May lafl, by preparing anfwcrs on fucli general objeiftlona as occur in thofc cafes in which full aniV/ers cannot be made to the whole of the fpccial matter rerpe(^ively tlierein contained. From which order Mr. Fctzsimons and Mr. Sitgreaves diflented. Hxlradcd from the proceedings of the Board. G. EVANS, Secretary, Commissioners' Office, Plnladelphlay \ith June^ 1799. Present, as before. In the Cafe ^Hanbury, Executors of Hanbury. X HE Board having considered the objections fubmitted on the part of the United States to the draught in this cafe propofed by the general agent for claimants purfuant to the order of the 1 5th ultimo, ftating generally " that the draught does «' not particularly defcribe the debt by fuch words as it may be fpecifically known *' and diftinguiflied from other debts, for which purpofe the inftrument fhould con- *< tain an apt reference to the evidence of the debt, if there be any fuch evidenccy and " that the draught contains words of acquittance only." ORDERED — That the agent for the United States lay before the Board the fpecial alterations he would propofe to have made on the faid draught. With this obfervation that there can be no award in any cafe where there is no evidence, and that in this cafe the evidence arofe frc;a matter of record filed with tlie claim. Mr. FiTzsiMONS and Mr. Sitgr. .rES diffented from the faid order, and prefented the following minute of their reafons; viz. ( <>9 ) ift. Becairfe ith in effecl renewing upon the agent for the United States an order in this cafe which the Board have already recalled. 2d. Bccnufe it implies a cenfure on the agent for the United States for an ex- preflion which is deemed correft and proper, in as much as an award may be founded on a dvbt, or debts not of fpecialty, the evidence of which cannot be i eferrcd to by terms of apt defcription in an inftrument of aifignment. Mxtrailid from the proceedings of the Board. G. EVANS., Secretary. Commissioners' Office, Philadelphia, 2\Jl June^ 1799- Present, as before. In the Cafe o/* John Bowman and others^ furviving Partners of Spiers i Bowman and^co, i HE Board having confidered the argument ftated in the anfvver in this cafe In the following words, " But this admiffion is not meant to wave what has *• been before contended, that fuits fhould be brought, as well for afcertaining the " amount as to prove that the payment is not attainable froir ihe debtor, or to *' excufe the claimants for the negleft of not making perfoiial application for the " debts," RESOLVED (to prevent mifapprehenf.on ap.d 'vafte of time in un- neceffary controverfy) that it is not incumbent on claimants vjow to bring anions or inftitute fuits, or in any other manner to proceed againft the debtor or his eftate for the recovery of the debts on which compenfation is claimed, or any part of them — without prejudice to the queftion whether the claimants ought before to have fo proceeded, or whether the lofs complained of, or any part of it, has been occafjoned by the raanifefi: negligence or wilful omiflion of the claimants, within the intent and meaning of the provifo in the treaty of amity. ^. From ( 70 ) From which refcluiion, Mr. Fitzsimons and Mr, SixaaEAvEs dilTented, ftating their intention of phiclng on the minutes the retifons oi their dillcnt at j. future day. Estraded from ihe proceedings of the Board. G. EVANS, Secretary. Commissioners' Office, rhlladclpJjia, cCwi Jane, 1 799. Present, as jsefohe. In the Cafe of J. Bowman, ///ri^-zVor (j/ Spiers, Bowman ^ co. ■ 1 HE Board having confidcred, that in the anfwer in this cafe, the agent for the United States infilb that the claim, though fupported in all other points, would not be good, even on fpecialties, for « inleref during the ivar," and that the fame general objedion is (lill infilled on in other cafes, RESOLVED— That by the refolution palled by the Board on the J 8th day of December laft, they have folemnly determined the contrary, and that agents pradifing before them are bound to pay refpeft to their refolutions by refraining from all argument or oppo- fiuon on queftions which they have diftinftly fettled. Trom which refolution Mr. FirismoNS and Mr. Sitgreaves dlflented. COMMISSIONSRS' 7^ Commissioners' Officii, Phikilelphiti, zCth June^ ^799' Present, as before. In the Cafe 0/ George Anderson, y«r'i;k'i«j>' Partner of Anderson 6' Horseburch. J- HE Board having confidered their refolution in the cafe of Ctninm^h:nn an'I company, paflcd on the fixth day of Augurt lafl:, in the following words: — *' RESOLVED — That fo far as the full recovery of the debts in this cafe claimed, " has during the operation of the fiid lawful impedimen's been -^clayed, and *' the value and fecurity thereof impaired or Icffened, or totally lolt, by lapfe ** of time, the lofs of legal evidence, infolvency of debtors, or othcrwife ; fuch " delay of recovery, or diminution, or lofs of value and fecurity, are to be " afcribed to fuch operation of lawful impediments ; unlefs it be (hewn, v.ith- <' in the provifion of tlie treaty of amity, that fuch delay of recovery and dimi- «' nation, or lofs of value and fecurity, were occafioned by other caufes, which «* would equally have I'o operated if the faid lawful impediments had not exitted ; << or arofe from the manifeii delay or i^gligence, or wilful omifHon of the claiia- ** ant," from which refolution k^^j^^'iTzsxuotis entered his diffent, on the ground dated in his minute of diffent of the 8th day of Auguft lafl, as follows : — *' Becaufe, a principle is laid down which throws the whole burden of proof upon <* the United States in every cafe where legal impediments exifled, contrary as is " believed, to the clear principles of law and equity : — By this decljion the creditor " is excufed from proving that his debtor ivas folvcnt at the expiration of the v;:'r, " or that he has ufed due diligence for the recovery of his debt ; to avoid the " payment of the United States mud prove the contrary in both inllances." And further, havinff confidered that notwithftanding the known meaning and intent of the above refolution, as ftated and oppofed in the minute of dilTent before recited, it has fmcebeen repeatedly, and in almoll- every cafe before the Board, maintained and artrued on the part of the United States, in dired oppofition to the laid refo- lution, or as if no fuch refolution had ever paffed, that the claimant is bound to prove t\\5tions may be made, and each objec- tion containing a general principle ; for example, one debtor may have paid his debt, another may have been infolvent at the peace, another may have been and iu ncv/ folvcnt. . , , Believing that every claim brought before the Board, is to be determined by equity upon its own circumibnces, the agent for the United Sates is in the courfe of preparing anfwers with all pofllble difpatch, lladng as fpecially and as liilly as in his po'.ver, all fafts not contained in the memorial which have come to his knowledge, and all objections whether general or Ipecial which appear to him ma- terial for the coniideration of the Board. He is not in the tourfe of preparing an- fwers merely of form. The claimants have been upwards of four years preparing their claims, with the affiftance of able counfellors in every parti ular State, as well as in Great Britain. The amount of claims is computed to exceed twenty millions of dollars. The number of claimants .ire many hundred, and the number of debts for which com- enfation is claimed are many thoufand. The difHculty of obtaining ufeful know- edge coneerning the multifarious matters neceflliry to be known is extremely great. r. The ( 75 ) The agent for tlie United States hopes the Board will confider all thcfe circum- ftances, and allow him reafonable time and opportunity to defend the United States, fo that right may be done. JOHN READ, JuN. ^gent general for the United States, id of July, 1799. Commissioners' Ofmce, Philadelphia, zGth June, l']99- Present, Mr. MACDONALD, Mr. RICH, Mr. FITZSIMONS, Mr. SITGREAVES, Mr. GUILLEMARD. In the Cafe of Andrew Allen. The Board taking Into their confideration the following paflage in the obfervations on the reply, viz. J N the cafe of Doaor Tnglis, the Board on the 4 1 ft May 1798, RE- SOLVED — ' That the claimant's charader of Britifh fubjea was not afFefted. or impaired by the a(5t of attainder and confifcation pafled by the State of New- York on the 21ft of Oaober 1779, attainting him, the Earl of Dunmore, Go- vernor Tryon, Sir Henty Clinton, and many other Britifh fubjeas, who are therein defcribed, not as fubjeas of the State, but as perfsns holding or claiming trobertv within the State, and fprfeiting and confifcating their whole eftates real ^ ^ -^ " and « ( 7*5 ) ♦•' and peribnal . for their ndhcvcncc to his Britannic majcfty ; but that en the " contrary the faid i\tt of attainder, and the dcfcription of loyalift or refugee, •* applied to the claimant on tlic part of the United States, in confcquence of his *' faid adherence, are conclulive evidence that he ftiil maintained his original allc- ** piance : that therefore he is entitled to claim before ^bis Board under the /curt /y " article of the definitive treaty of peace, md the ^/ixth article of the treaty of " amity, between his faid majelly and the United States.' " This refolution has " been exadly recited, becaufe it may be underrtood to have omitted the cafe of •* the claimant, who in the adt of attainder and forfeiture is exprefsly dcfcribed as " a fubje<5t of the State of Pennfylvania, and punilhed as fuch by a forfeiture of " his eflates and debts. Indeed the exprelTions in this refolution feem to imply, that if Doflor Ing/ls had been attainted as a fuhjcB of Ncvj I'ork, and his dells coiififcalcd for a crime committed by him as a fuhjeCl the Board would have dif- mifled his claim. The difliniSlion fo explicitly taken by the Board, between *' attainting and punifhing a, man as :ifubje8, and attainting andpunilhing him ' as *' a perfun hqfding or claiming property luithin the S/ate,' niuft have been meant for •* fome ufe. At all events, this refolution cannot be confidered as deciding that *' the fourth article of the treaty of peace fct afide legiflative ads of attainder and " forfeiture, parted againfl: individuals dcfcribed and holden as fubjedts of the '* State, and punifhing them for their criminal condud. There is certainly a *' difference between a confifcation of an eneniy*s property by the right of war, " and a forfeiture of a fubjeft's property by law for criminal conduct :" (( (( RESOLVED — That in the abovementioned refolution in the cafe of Dr. faglis, the Boar^' did not decide on the diflin(.iion flated in the above pafTage to be " between e„ainting and punifhing a man as a fubjed, and attainting or punifh- *♦ ing him as a perfon holding or claiming property within the State ;" having only referred to the fad for the purpofe of fliewing, that the cafe flood clear of all ob- jedion on the ground of that alledged diflinftion. Ext raSled from th^ proceedings of the Board, G. EVANS, Sbcretary. Commissioners* ( 77 ) Commissioners' Oifice, J' FhtLuklphm, f)lh '/u:v. Ijyv. Present, Mr. MACDONALD, Mr. RICH, Mr. FITZSIMONS, Mr. SITGREAVES, Mr. GUILLEMARD. In the Cafe of Andrew Allen. J- HE following refolution having been the fubjed of full difcufHon in the Board during feveral fittings — Mr. Macdonald with the concurrence of Mr. Rich and Mr. Guillemard, moved that the fame fliould be paffed. The Board having confidered the " frj grouna of defence^' taken by the United States in this cafe, as founded on the aft of attainder and confifcation, Vi'iTed by the State of Pennfylvania againft the claimant on the 6th day of March J 778, in the following terms, <' Whereas Jopph Gallonvay, /Indrciu JUen, &c. " &C. being allfuljeBs and inhabitants of the State of Pennfylvaniay have mod: trai- teroufly, and wickedly, and contrary to the allegiance they owe to the faid State, joined and adhered to, and ftill do adhere to, and knowingly and wil- " lingly aid and affift the army of the king of Great Britain, now enemies at " open war againft this State and the United States of America, and yet remain '* with the faid enemies : — Be it therefore enacted, and it is hereby enafted by the " reprefevtatiiies of the freemen of the commonivealth of Pennfylvania in general aflem- bly met, and by the authority of the fame, that if the faid Jofcph Gallonvayy ** Andretv Allen, &c. (hall not render thcnifelves refpedtively, to fome one or •* other of the juftices of the fupreme court, &c. on or before the 20th day of ** April next, and alfo abide their legal trial for fuch their treafons, then every " one of them fhall (land and be adjudged, and by the authority of the prcfent " ad be convided and attainted of high treafon, to all intents and purpofes what- «* foever and Hull fuffer and forfeit as a perfon attainted of high treafon by law " OKghc (( ( 78 ) *' on^])t to futr-jr and forfeit ;" — p.nd which ^^ Jlrjl ground of dffmce,^^ taken by \\\'i Unitj'J St.i!c; oti the above -xSi of attainder and confifcution, is fet forth in the obfcrvatioirj on the re))ly as follows, viz. " The claimant has ftated in his reply, " that it is not to be difputed or denied in this cafe, that the legiflaturcof Pennfyl- '• vania proceeded againll the claimant as an tuhuh'itam or fuhjeH of Pennfyhanlaj "■ and ci^nfifcatcd his whole ellate, real and perfonal, debts included ; and the " loftillativf aift fxpreffos, that the attainder and forfiiture was inflided for the crime of high treafun." " That tlie State of Pennfylvania in paffing the ad of attainder and forfeiture againfl: uindreiu ylllen the claimant, del'cribed and confi- dcrcd him as a ftihjef!, is apparent from the words of the aft. If he had not been a f.'.bjeft of Pennfylvania, he could hot have committed the crime of trea- *^' fon, of which he was by legiflative aft attainted. That legiflative aft is itfelf evi- '• dcnce, the beft and highcft evidence of his being a fubjeft of the State. Such -' faith is due to the aft of a leglflature of an independent State, that other teftimony '* of the fafts contained in it, is not to be required. On the aft of attainder and ■«' forfeiture therefore, the agent for the United States might reft as fufficient proof, *' that the claimant was a fubjeft of Pennfylvania. i\ware of this, the general agent for claimants has advanced the extraordinary pofition — that the treaty of peace is the only point of time from which agreeably to the Bvitiih conftitution and laws, the United Stntes ceafed to be a part of the Britiih empire. — Accord- ing to thii doftrinc, Pennfylvania was not an independent State until the peace, for fhe could not be an independent State while flie remained a part of the Bri- tiih empire. According to this doftrine her legiflative afts prior to the peace, are not to be regarded as tiie afts of an independent State. — This pofition being important to the juft decifion of this claim, fliall be examined. "\Vhc... the United States became independent and took, their place among the nations " of the earth, is a matter not to be determined agreeably to the Britifh confti- '* tution and laws, but agreeably to the laws of nature and of nations. /« fatl '* they luerc independent fj early as 1775' "^"^ '"' ^'^^ ^'"^'' glorious and r.'.cmorallc *'■ fourth of July 1776, they folemnly and formally declared to the world they *' were independent, and from that period have maintained their independence with ** honor and profperity. — Prior to the treaty of peace they made treaties of alli- *' ance. commerce and navigation, and were thus publicly recognized by foreign " powers as an independent nation. They carried on ivar, they made laws for ** their own government, and did every other aft of a fovereign power. The *' formal ackno'-jdcdgimnt by his Britatmie majefly added nothing to their real hide- '* pcv.denc:, and if the treaty of peace had never been made, the United States ** would have aftually continued an independent nation though at war with Great ' ' Britain to this moment. What is it the United States were incompetent to do as " a fovereign power, between the 4th July 1776, and the 3d September *' 17B3, which they can now do ? * Every nation that governs itfelf under what ' form focvcr without any dependence on a foreign power is a fovereign State, its • rights arc naturally the fame as thofe of any other State. Such are moral perfons « who live together in a natural fociety, under the law of nations. To give a «( • « < < « • nation ( 79 ; r./t' < tiou .1 ii-,!.i to ir,..k.' an i"iu.ricdi;;tj figure i:i tliij gra'.d fjci'jty, i' it it b'j rc.tlly luvereign and independent, t!.at i:., i^ niulb pc-,.i,; icrs;it' by ii*. own authority ' ViUttl B. i. i'. 4. ♦ When a nation bjconuD divided lau *\\'o parti*:3 abfolutcly iDd'.'pcndcnt, and no longer i"';:no\vlcdjjin2 a corr.nnn fapcrior, th:; State h dilfoived, und th.e v/ar betwl-:-. the two ijuriicg i;i evciy rclpc'ii 13 t!ij fame willi that or" a pv.blic v/ar b:^.\/eja two difFcrcnr. nations.' //. <'. 3. 6'. 2fy5 — " Applying theft; palfagf.s to tl..: f:iuation of the Britilh, em^ifrt ' v.'hcri the American colonic: icparated fr-jin Ctcut I'atain, whether that adf v - repealed as to debts, by the fourth article of th'j treaty of peace. The agenc for the United State", cuntcnd-j that it waj net, and that the debts forfeited for treafon during the war, were not embraced b*' that article, becaufc Andrew Allen, and all otiiers in the like predica:5:ent, were civilly dead as to the United States, and were not creditors when th; treaty of peace was concluded, of the debts that had been forfeited. Th? ftipulaiiou that creditors on cither fide lliall meet with no lawful impediaiont to the recovery of the full value in fterling money, of all lonafdc debts here- tofore contrac4ed, does not include pcrlbns, who as fuljetls had "become deprived of their eftates and debts for their criminal comlucl ; Andre- j Allen having joined the American fide, as is proved by the highell evidencej the legiflative ac^ of Pennfylvania, and having deferted it and thereby incurred a forfeiture of all his lights, is in no point of vicv/ to be confidered as a creditor on the Britifiifide. To conclude, the firil: ground of defence, if the legiflativr: ait of attainder and forfeiture paflcd by Pennfylvania on the 6th of March 1 778 - is to be confidered as an ad of a fovereign independent State, it is conclidive proof that Andrew /llk.i was once a fjbjedt of Pennfylvania and had forfeited his eftate including his debts prior to the treaty of peace, for his criminial cotidut^ as a fub- jecTt. If as a fubjecl he was attainted and punifhed by the lofs of his debts the treaty of peace did not nnnul the legiflative \x&. of forfeiture, and relbre to him .1 right to recover his fo.icited debts. If the treaty of peace did not rellore to him * a right to recover fuch forfeited debts, there has been no lofs proceeding from a ^ violation of it, for v/hich he is entitled to claim before the Board under the treaty * of amity." And in the following paffage in a Aiblequent part of the paper — '« The Ill'" ( 80 ) « Tiic plalntiitb in this cafe ( H cm: J tons vs, Eaton) were allowed by a law of «« North Carolina, together witli others fimilarly circumftanced, the option of « t iking an oath of atlcgiancc to die State or of departing it. They chofe the «« liircr and were n-vcr regarded as fubje.5>3 of the State. Their confifcated ♦' dc'^t's they have been adjudged to be capable of recovering of their debtors. «' It is not to b'. denied, that the Chlsf JuJUce Elfworib in delivering hisfen- " timcnts on this cafe does llrongly imply, if the plaintiffs had been claimed *< an/holden as citizens, and for "their crime had been deprived of their debts, *« that they could pot liave recovered them under the treaty of peace. This «' opinion the agent for the United States confiders as a very refpcftable fup- <•■ port of th: firtt ground of defence taken in this claim ; — upon all occafions the " chief juftlce has'been ready to allaw the fullelt force of the treaty of peace *' v.pon cafes within it, and if dJjts forfeited for treafon are not in his opinioa «' recoverable in the federal court, it can only be becaufe he thinks they are not *' within the operation of the treaty, for if they were, it is difficult to afTign a " reafon why they fhould not be recoverable at law, as well as debts confifcated " by'ri"ht of wa/." — In aid of which argument two letters have been produced from a fearncd judge of the United States (Patterfon) to the agent for the United States, in anfv/er to his enquiries refp':£ling the nature and import of certain dc- cifions therein mentioned, one of which letters, recited in the ohfcrvattons dated the 27th day of May lait . gives an account of the cafe of Mutter and Hamilloiu auainft Moore therein mentioned, as follows, " The declaration ftates that ji. and *" "' j^ Hamilton arc fuljeils of the king of Great Brila'tn. The defendant pleaded that the nlaintifls are on the confifcatton aft of North Carolina, an'^ ^..^.yment to 4C » the commiflloners. The plea ftates that the faid ^. and ;/. Hamilton were «' inhabitants of North Carolina, and continued to be fo until September 1777. <« To this plea the plaintiffs demurred. I well remember that it was urged by « Mr. Noel, one of the counfel on the part of the defendant, that all in/jabitan's *' hcame cilzens hy the declaration of independe!,ce. On this point the court gave «« no opinion, it was not necelTary ; the cafe did not require it. As it was ad- «« mitted by the pleadings that J. and J. Hamilton were inhabitants of North «« Carolina on the 4th of July, 1776, and continued to be fo till September 1777, « a period more ti n r.i*^"ient for ihem to make their election agreeably to the law «* of nations, I covftderzd them as citi-zens of North Carolina, and not as fubjeas ofihc king of Great Britain. So the law appeared to me as ariflng on the fafts de- tailed in the pleadings. In my judicial capacity I was obliged to take the cafe from the declaration, plea, and demurrer : but I intimated more than once the p'-opn'ety of moving to amend the proceedings. It was not done. The decifion pafTed againft the plaintiffs. I cannot undertake to fay of what opinion the court would have been, ;/ the plaintiff's had replied that thry nvere ffhje&s of his Britannic maje/ly, and alfo, the treaty of peace."— The diftindtiori between a Britifh fubjcft, refiding in England, and an American Britifh fubjeil, nevei entered my head. The only enquiry was, whether it fufficlently appeared on the pleadings that the plaintiffs were Britifh fubjefts and could avail themfelvea ^'oi^^^tr,.ty.- RESOLVED u tl « (( (t it «( i< «c *t 4 ( 8i ) RESOLVED cu the fuid <■' frjl ground of dcfsr.:c;' and lekrvlnr; ihc otl.ei' points in the cafe, that it becomes' the Board to refrain from all obfervation oii the ^^rtfra/ queftions fuggefted in the above argument ; namely, whether a pait of a nation becomes independent of the government which had been ellabliflied over the whole merely by declaring itfelf to be fo, and fupporting fuch declaration " by tht- " fword?" — whether a part of a nation by thus " carrying on war" againft thai which had till then been maintained :.s the government of the whole ; " making «• laws for their own government ; .\nd doing every ad of a fovereign pow- «< cr," doas truly become a fovereign power ? — whether the alTertion be well founded, that " the formal acknowledgment by his Britannic majelly added nothing « to the r^«/ independence of the United Stages ?" — what woald have been the cafe " if the treaty of peace had never been made ?'— whether " the United " States would" nave aaually continued an " irdependcni nation though at v/ar «« with Great Britain at this moment ?"— and how far " the celebration in every " part of the country of the ever glorious and memorable 4th day of July 1776," (according to the language made ufe of before the Board) " as the anniverfary ot " their fnvereignty" can affeft the prefent cafe ? — that the Board diink it fit alfo to refrain from all obfervation on the cafe which is in fubltance put, of an uncondaiomil Juhmiljion on the part of Great Britain to the independence of the United State:;, and I0 ail thai had been done under the authority they e>cercifed ; becaufe the cafe fo^ put, iji not th^ cafe which adually exifb ; there having been no fuch unccndiiicnui fubnv.ifion, or acknov/ledgment of the independence of the United States on the part of Great Britain, but a recognition by lolemn treaty, containing reciproud Jli- pulations, as the price of peace, and for the mutual benefit of /Wj countries: — tliat iis it has however been maintained in the Board, that the independence of the United States was complete even as againlt Great Biitain before the treaty of peace, it cannot be improper to Hate, the Imprcffions entortaiocd on that important fubjod by judges of great name and authority in the United States, from thcji opinions judicially delivered, and as the fame are recited and referred to in the paper read by M. Sitgreaves, and put on the minutes of the Board on the 19th day of February lail, in the cafe of ihc Right Reverend Charles JngUs : — That in the cafe of IVarre admini 'Orator of Jrmes againd Hyllon^ decided in the fuprcme court of the United Str.;es in February 1796, Judge Chase, in dating the out- line of reciprocal Jlipulatk II conta.ned in the treaty of peace, expreires hinifelr as follo'.vs, " I will now proceed to the confideiatio' of the treaty of 1783. " It is evident on aperufal of it what v/cre the^?n'a/and principal objei^^s in viev/ » by both parties. There were fo::r on the part of the United States, to wit, " Firjl, An achnonvU'dgment of their indcpsruhnce by the croivn of Great LriUi'.u. ♦' Second, A. fcttlcment of their weftern bounds. '1 hird, The right of iilhery. <* And furth, i he free navigation of the MilTiifippi. There were three on the «< part of Great Britain '■ &c. the recovery of debts provided for by \.\vz fourJ} article being referred to as the firfl of thele three objecfs— and another learned judge of the United States {PrJerfun) whcf^: opinion in the faid cide is alio recited in the fiime paper, obfttves as follows — *' The traders and others of this countiy L " 'Acr-; -? -■ y-aeejsr, »"*,»i,, „,^-^ ]^tj^-i -ji^>-" - ^ • r^^kj^^-^ ^E .«( *( n (( «( (( « <( . ( 82 ) " were largely indebted to the merchants of Gre.it Brka'-n, To provide for pay- «' ment of thcf debts, and glvo fatisf^aion to this clafs of fubje6>s, muft have been a malrcr oJ primary imuortance to the Britidi minilh-y. This doubtlefs is at all times, and in all fituation?, an objeft of moment to a commercial country. Thconulcnce, rcfources and power of the Britidi nation, may in nofmalldegice be afcribed to its commerce : it is a nation of manufaaurers and merchants. To protea their intercfts and provide for the payment of debts due to them, efpecially when thofe debts amounted to an immenfe fum, could not fail of anefHng the attention, and calling forth the utmoft exertions of the Biitifli cabinet. A meafure of this kind it is eafy to perceive vvou'd be pnrfued with unremittin?^ diligence and ardor.— Sacrifices would be made to enfurc us fucceis, -- and perhaps nothing Hiort of extreme necelTity would induce them to give it up." — Conclufions which arc not weakened by the confideration, that although it ir, tiuc the greater part of the " hmienfe" debt thus provided for, was due to Bntifh merchans, part of it was alfo due (in the language of the treaty of amity) "to « others his m?ijefty'sfubjec^s."— That another learned judge, whofe opinion in the cafe of M'Call ngahi/l Turner, was publiflied at full length, and fpecially referred toon the part of the United States in tiieir printed anfwerto the claim ot WiU'tam Cunnw-ham and co. namely, judge Pendldm, exprefled himfelf in the Vlrghiia ccnveraion (of which he was prcfident) when debating on the adoption oh •the federal conlHtution, as follows : " Congrefs were empowered to make war and " peace. A peace they made, ghks us ths great objea, mlfcndence, and yield- " in-T us a territory that exceeded my moft {iinguine expeaations. Unfortunately «' a%iglc Magrecabk clcmfe, not the objea of the war, has retarded the perform- « ance of the treaty on our part.— Congrefs could only recommend its perform- «' ance, not enforce it."— That in order to determine the prefent quelhon ±e Bo.ird have only to apply the plain and unambiguous terms of the laid fourth article for which «/7fr£/?f^j" were thus held to have been, and certamiy were made on the part of Great Britain ;— and that the terms thereof arc plain and un- ambiguous ftands confirmed by the refpeaable authority already referred to. « On « the beft inveftigation (fays judge Chafe) which I have been able to give the *« fourth article of the treaty, I cannot conceive that the wifdom of man could « exprefs their meaning in more accurate or intelligible words, or in words more « proper and effeaual to carry their intention into execution"— and judge Pater- /•Jexprefles himfelf thus— « The phrafeology made ufe of leaves in my mind no « room to hefitate as to the intention of the parties. The terms are unequivocal « and M«iw//a/ in their fignification, and obvicufly point to, and comprehend ^// « creditors, and all debtors previouQy to the sd September 1783. In this article « there appears to be xfekaion of exprejfton, plain and extenfive in thur import, « and admirably calculated to obviate doubts, to remove dithculties, to defignatc tlr- «« obieas, and afcertain the intention of the contendmg powers. —*« 1 he words « creditors on either fide embrace every defcription of creditors:^" ^H creditors « on either fide without di/iinaion muft have been contemplated by the parties m « the fourth article : Almoft every word feparately taken is expreflivc ci this idea, •^ *' and ( 83 ) " and when all the words are combined and taken together, they remove every " particle of doubt." — That the fame imprefTion of the ample, comprehenfive and unreilrained force of the faid fourth article, is further confirmed by another learned judge (Sitgreaves) in the opinion delivered by him in the cafe of Haiullton avainjl Eaton, in June 1796, alfo referred to and recited m the abovem'.:r.uoned paper, entered on the minutes of the Board in the cafe of Ingl'is ; the faid learned judge, in itating the general and unlimited import of the expreiTion " all creditors 071 either fide'^ in the {x\A fourth article, where no other d'ftinftion of pevfon or charaifter was intended than that of being on the one lide or the oth' r at the peace, havina therein referred to the feveral diftimftions of charafter anxiouHy marked out in the very next article, viz, thtjifhy where fuch diilindons were intended, (but \vh\c\\fftb article has no relation to the recovery or" the debts fjcuied by the fourth article) as follows: — " The /owr//; article contains the only Uipulatioi; witfx " refpedl to debts in the whole inftrument. It is mutu J and genc.-iil in its exprei- " Con, not limited or reftrained by any particular words to any defcriptlon of pnfonu *' as is evident in the ffth article. If that had been in the contemplation of tiie «* parties, they could not have overlooked the neceiTity for thefe diftinftions, nor *• are we at liberty to prefume it. In the next article, the diftindion is made ** with great accuracy with regard to thofe who endeavor to procure a reftitution *« of their lands and other property :" — That the extent equally unlimited of the expreffion ' iaivfid impedments'" is likewife referred to and explained by the fame, and other learned judges of the United States, whofe opinions are quoted in tlie abovementioned paper, in the cafe of Ingl'is, judge Chafe having exprcfTcd himfelr on that fubjeft as follows — ^^ Shall meet luith no lawful impediment ;"" thatis, "widi •' no obftacle (or bar) arifingfrom the common laiv, or a6ts of parliament, or afli ** of coiigrefs or acfts of any of the ?':ates, /•'''.•i in txylcnce . or thereafter to be " made, that would in any vuinner operate to prevent the recovery of fuch debts as *• the treaty contemplated.' — " The prohibition hat no lawful impediment Ihall «* be interpofed is the fame as that ail lawful impediments fhall bfc removed. The " meaninrr cannot be gratified by the rem^Ta"l of ( ie impediment and leaving ano- " ther ; t.^ii a fortiori ^ by taiiing away the kls and ieaving the greater ; thefe *' word'' have both a rHrofpeSiif at the time of . -»■ makin f uie treat^', but is extend •■ o debts iheretoftre contratled," i hat ( 34 ) Tint iiK' ■i:i-^ztihv...\ tiras gifv.i, fricc :he irc.iiy of am'ry, viz. in t'nc year 179(1> Iv tho LanieU jiulges oi t!i: United Sr.t:a above mimed, corrcfponds v/itii the .c-\\\nop wli'tch, on nnt'ii\; deliberation, the Boaid iiavc ck"'.r!y lOrmcd on this {\X>'.Ci, and v/hicli i!:?y iiov/ declare, vi^. 'i'hra ihe fum: iun.rjr.ier.t:, by tliey'r/; avt'.c!c v/hcrcof Iiis Brittannic majcfty on \\\.: \i day of vSeptcmbcr 17B3, " acknowledged the United States'' (net to hdvc to tlie i»o:n from the Ath dav of Ji'W I'-nO, but) " tobs^vcz, fcvereian, and indei: •« otatcs; that lie trc;itCvl with tiicni as fjch and rclinq-aillicd all claims " ;>ovcrnmcnt, propri>.ty, and territorial rights of the fame," provided aifo in effect by the mutual (tipulation in favor of" creditors on either fia'e^" contained in the, f.::irll} artic'" thereof, th'.t no ail v.'hich had then been, or fliould thereafter be done or palfed, by or under the authority of the faid United States, or any of them, whr.tevcr might be its form or import; v/hatevcr the terms therein employed; whatever the extent of pov/cr thereby affiimed or declared ; whatever the charader fi]:i\'hy afcribed to the individual againft whom it was directed, fiiouid be fuffered to operate as a lawful impediment to the recovery of debts '• theretofore contraded" to a creditor on tine fide of his Britannic majeify at the date of the faid treaty: Nor can the objccflion be flipported, that the above interpretatioii v/ould extend to the ordinary opcraticn nf criminal lanu in cafes of felony, and fuch other ofFencca as did not arife from the part taken by individuals during the war ; for ^ ordinary ope- ration of criminal law thus fuggefted as the ground of an objcf .. i., as no relation whatever to the fubjcia matter of the faid article : — That in t • of the Right Reverend Charhs In^/is, the Board by their unanimous refoluL. of the /w-j.i/v- firj day of May i79y> determined, that an aft of the State of Nev/-York paficd during the war, attainting the fliid Charles Itiglis for the \m^\x\.c6. crime nf adhtring t-j his Britannic majejly was a lawful impediment within the meaning of the treaties; the only difference between that cafe and the prefent confining in the diflerent words of defcription contained in the two feveral adls; — but as the afl of the State of Pennfylvanki cannot have any greater effeft: or operation againft the/o«r//S article of the treaty of peace than that of New York, and as the fact charged to be a crime, viz. adherence to the caufe of his Britannic majefty is the fame in both cafes, the mere words of defcription ajfumed in the ad; of Pennfylvania, cannot prove ngairjl the true character of the party as a Britifli fubjed, or give efficacy to itfelf, fo as to take th '2 out of the meaning and operation of the laid article : — Nor does it appear how aie claimant became lawfully fubjeded to that State any more than the faid Charles Inglis to the State of New York, or the former lefs entitled to the charader of Britifh fubjed than the latter : — That all general argu- ment on the declaration of independence, and the efFed of ads done under it, whether by the law of nations, or by virtue of the alledged retrofped of the above recognition by the treaty of peace, is therefore precluded, fo far as regards tlie prefent fubjed, by the plain terms of a pofttroe compaEt: — That the comprehenfive exprelTion " creditors on either ftde" contained in the fourth article of the faid treaty, unrejrained l>y exception, by defcription of fpecitil charader, or refiriBion of any kind, was evidently feleded for the very purpofe of avoiding all doubts or difficulties, which ( Si ) xvhlch mlgli'; cil'.crvvirc: \.:v:z 'o::n raifcil upon nKix dilniKnions &f char.K^er, a3 (with rcfcrenccVD r diilbrent fubica) are nnxiouQy delineated in the arlicle immediately followi'.:;; : — Tiiat if the claimant could be faid to have at ary time !>7a,:L- his eu'CIicr} i-i i'.v.jr" of ti-.-: United States under the declaration of independence, and fo tiepiuied fo. a 'ui;v.c fubfccpucnt to that event from hi' nr.tivc aikfiancci, (the contrary ofwhicii appears to have been the cafe) his leturn to, and havinsi been on thrpb of hi? fiid native allegiance at th: peace, would have ficured to him the benefit c^ the ^M^i fcurtk arr.clc of the treaty. — ^I'hat accordingly, having been on the fide of his Britannic n.ajcfty at the date of the treaty of peace, and bcin;; a natural born riibjeci of liis faid majelly, not barred by the acceptance of citi^enihip, from the ri^ht of claiming pgainil the United States, the claimant is entitled under the tre,:ty of amity, to complain to this Board of the faid ad of attainder and confifcation before recited, as being a laiuful hr.ptdmmt within the d^fcription of \W(i fourth article of the featy of peace, and the fi: ^;; Ss Photosraphic Sciences Corporation V . ^A3^ #v <^ #3 » <>^ > CI uuesT »JSft!?J STSccT WEBSTER, N.Y. 14580 (716) 872-4503 .^' W4 ^<9 ?< mm I ( 92 ) f . , -- 7. SB Debts due at their Charlotte county ftorc-. w' r. . ■ , 8. SB Debts due at their Lunenburg (lore. ^ ^ " J 9. SB Debts due at their Halifiix ftore. l^ ic. SB Debts due at their Cumberland (lore. -^ u'' 1 1. SB Debts due at their Mecklenburg county (lore. Uu' 12. SB Debts due at their Bedford county (lore. u ^ n 13. SB De'':ts due at their Anihurft flore. 14. SB Debts due at their Richmond (lore, t- '. ■ While your memorialins pray that this their claim may at prefent be received Tor each and every of the principal fums dated in the ubove hfts, with legal interert from the times when by the fpecial contrads or the cuftom of the trade mtereft became chargeable, to prevent all mifunder (landing or any imj)utation on tlieni, of claiming any farthing not juftly due and owing, they think it nccefiary here to fhite, that the foregoing lifts have been made out for fome confiderable time pall: ; that in a concern of this magnitude, a regard to their own intercit as well as a mod llnccre dchre to Iclfcn the burthen of th.e United States, didated the propriety of keeping their agents and coiledlors employed in endeavours to colled as much as poiTible from the original debtors or tl.eir reprefcnratives ; that they are yet em- ployed in that bufmels, and your memotialifts are not without hopes tiiat confiderable CI edits may yet be given on the above nfls. Your memorialifts therefore pray, that they may hereafter be indulged in the privilt'dge of filling additional fchedulcs in whicli the above named debtors will be clafl'ed according to the nature of the demand, the circumlbnces of the debtor at the peace, during the exiftence of lawful impediments, and at prefent, together with the ncceflfary calculations in which Ichedules credit will be duly and faithfully given for all fuch fums of money which may liave been, or yet may be colleded, and from which will be omitted all fuch demands, if fuch there are, for which your memori- aliils on the moft mature confidcration, fliall not think themfelves juftly and con- Icientioufly entitled to compenfaiion witbin the true ii.tent, fpirit and meaning of the treaty. « WILLIAM MOORE SMITH, \ tih OBola-f 1798, General agent for claimants. To .'he ^ vi ( 93 To the CoivimJfionc-.-s for carrfing into Effcci the Sixth Artictt if the Treaty of ui^m'itx. Commerce and Navigaiioft^ concluded hetiveen his Briiafittic Alt- jejly^ and the United States of Americu^ en the U)th Novimkr 1794. h The anf-A-er on the part of the United States to the memorial and oJ.ii;n of Jol.ri . Bowman, WilHam French, Andrew Buchanan, James Hopkirk, Ronald Crawford and John M'Kee, who furvived Alexander Spciis, deccafctl, Mer- chants trading under the firm of Alexander Speirs, John Bowmaii and co. of Glafgow. IN OT admitting or confc-ning that the feveral debts or any of thcin fet forth by the ckiimants, were ju(Uy due at the date of the execution of the treaty of peace, to wit — On the third day of September X7H3, or remain at ihis time due, nor admitting that the feveral nerfons ihited to be dt.btors or any of them were citizens or inhabitants of any one of the United States when the laid tieaty of peace or when the treaty of amity was finally concluded, but faving and rcferv- injT all juft exceptions to the proofs of thcfc matters when any fuch fliall be offered to the Board and the benefit of repelling liiem by other teftiinony if nccefiary, the agent for the United States will proceed to anfv/er the matters in the faid claim fet forth fr far as he has been informed of the fame. On the lift of the claimants, Brunfwi-:kftore,No.6,LewellingWilliamfon appeals to be a debtor to the claimants to the amount of ^ . From an executiorr- ifTued in the name of the claimants, a copy of which accompanies this anfwer, it appears that the claimants obtained a judgment againfl: I^ewelHng Williamfcn atid on that judgment ifiued the beforernentioned execution, tefted the 26th of June 1797, whicii wasendorfed to be difcliargcd on the payment of 500 dollars, with intcreft from the firft: of September- 178^ until paid, and nineteen dolhus and lixteen cents cofts. To which writ the marflial of Virginia on the 13th of No- vember 1797 returned, that he could find no goods cr chattels of the det-ndant's whereof to make the debt and coih. From' the information communicated to the agent for the United States, it ap- pears that Lev/cUing Williamfon ivas folvent at the j^eice in 1783, and continued io a fliort time thereafter, when he became infolvent during the exiflence of legal impediments in Virginia, as determined by the Board in the claim of Cunninghairr and ( 94 ) und co'.'iipany rind h infiilvcni; fit this t!ni-j. "With a. belief of" tiic iiuth of th:{e I'.ifls and on pvoof of fuch facls as it is r.eccflary for the claimantG to produce to entitle them to claim, to v/it — That t!uy were all Britifli fuhjC(5t-3 at the pCtje and at th.e conclufion of t' ' treaty of aniitVj and that the debt was contracted before the peace. t!ie agent fur the United Suites aduiils that the United States are chaig(> able, \vi;h the amount recovered rrjair-fl Lewxlling Williamfon, viz. five hundred dullars with intcrcft from the ill: J:inuary 17S3 till paid, after tlic rate of five/.;- li'itlum pir annum.) and on the claimanis giving fuch an affignment of this debt to the United States as the I'onrd ihall direc^t, the fame ought to be paid by th.c United States to them, at fuch time and place as fiiall be awarded by the Board. \']th cfyltrU, 1799- JOHN READ, JuK. jlgent general for lJ:2 Utiilcd State. 1 he fiivihcv auf-jjcv on the part of the United Stales to the memorial and claim of the furvivlng partners of Speirs, Botuman and company. o a debtor. N the lift of the claimants Richmond (lore John Smith appears to be From an execution iflued in the name of the claimants, a copyof which accom- panies this anfwer whicli is fuppofed to be for the fame debt as that ilated to be due by the laid John Smith, it appears that the claimants obtained a judgment againll John Smith in the circuit court of the United States for the diltrid of Virginia and on that judgment iflued, the beforementioned execution tefted 30th January 1798, dire*5ted to the maiflial of that dirtri(5): commanding him of the goods and chattels of John Smith to caufe to be made nine hundred and fix dollars and fifty- two cents, and twenty-four dollars and forty-three cents for damages and cofts for the non-performance of a certain promife and afTumption whereof the faid John Smith was convieled as appears by the records of that court. To v/hich writ the marfnal returned he could find no goods or chattels whereof to make the amount, or any part of this execution. From the information communicated to the agent for the United States it appears that John Smith was folvent at the peace in 1783, and continued fo a fhort time thereafter, ( v> ) thereafter, ^vhcn he became infolvcnt during the cTtifltncc of legal impediments in Virair.iii as dcterniincd by 'he Bt)ard in the claim of Cunningham and coni]inny, and is infolvcnt at this ti.ne. With a belief of the truth of thefe fvfts and on prcof of fuch facts as it is ncce/Tary for the claimants to j'roducc to cniitle tluni to claim, to wit — That they were ail Britifli fubjeds at tiie peace and at the conclu- finn of thetrcatv of amity, and that the debt was contracted before the peace j the agent for the United States adniits, that the United States are chargeable with t've amount recovered again!!: J(ihn Smitl:, to wit — Nine hundred and l;:c dt. liars and 52 cents with intcreit from the judgment after the rate of five /cr rcrlnn per nv.nur.i, and on the claimants giving fuch an aflignment of this debt to the United States as the Board ihall direct, the fame ought to be paid by the United States to them at fuch time and place as firul re awarded by the Board. ijlh of May, JOHN READ, JuN. ^gerJ gcucral for the United Sfahs. i^ddll'ional Meimrial and fpedal averments fur evidence hi the claim of Sjhlro, Bowman and company, for compcnfation far ddts contra^ed at the fdloivitig Jlores, viz. LUNENBURG. HALIFAX and MECKLENBURG, \ Ii: Virginia. 1 HE memorialifts refpedfully referring to their memorial and claim already before the Board, and to the feveral matters and things therein contained, more particularly to their engagement to arrange their feveral debts under proper clafTes, fo that an inveftigation of them might be rendered more eafy, and to their rcquelt for time to make iuch arrangement, beg leave now to ftate that in the feveral fchedules which accompany this their additional memorial, they have omitted every debt fuppofed bad at the peace, or which might probably have been loft if no lawful im- pediment had exlfted fmc the peace, they have ftated only the ac^^ual lofs fultained upon many debts partially paid fince the peace, and they have clafTed every debt or part of debt claimed ia the following order : A. ( 9^ ) A. Debts on open accounts, figned accounts, or notes without feiil, Sc:. Thefe debts cannot be recovered for the followincj reafons : 1. The open accounts can only be proved by the (tore books, which the courts will not now admit as evidence, and whicli would have been admitted, and were never difputed before the war. 2. The figned accounts, notes, Sec. arc all barred by the adi: of limitation, and were lo barred during the exi(i:encc of lawful impediments, but were not lb barred at the peace, if the courts had been open. B. Debts on fpecialties, folvent at the peace and become infolvent during the exillence of lawful impediment3. C. Debts on fpecialties from pcfons yet reputed folvent, from whom a recovery may probably be hud, except fuch dcdudions of intercfl: as juries may chufe J.0 make and courts to fandion. D. Debts on fpecialties from pcrfons who are dead, and their property divided, or who have removed during the exigence of the impediments or whole refi- dence and prefent circumftances are unknown. E. Lofics fiiftaincd by deduiflions of intereft on debts fettled by payment, or "ivinsj new bonds without fuit. F. Lo/Tes fuftaiued by deductions of inte d made by juries, &c. In a column of remarks, and oppofite to the name of each debtor, are ftated fuch fafts as are deemed material, and the names of the witnelTcs by whom the fame may be proved. The following is the tcftimony by which the claimants expect lo fupport their claims and is the bell now ir their power. 4 LUNENBURG STORE. John Patterfoii their fa(f^or at the fad ftore is dead ; his hand writing can be proved by Chriftopher M'Cormic, Efq. of Peterlburg and Jonathan Patterfon who has removed to Kentucky to a regular fet of books — James Burns was his afliftant ; it is not known what is become of him ; his hand writing can be proved by the above gentlemen. There is no perfon who can prove the delivery of the goods, and the books are the only evidence of the open accounts. Henry Stokes, Peter Stokes and others of Lunenburg ; John Ballard. Newman Dortch and others of Mecklenburg, and Jonathan Patterfon now of Kentucky, can prove the foJvency, infolvency, deailiSi ( 97 ) deaths, retnovajr,, Sic. cs ftated In the remarks. Their aiUdavits ^rc already taken ex parte, and the accounts have all been corredly copied and ready to be compared with the books, in the prefence of any perlon who may be appointed for that pur- pofe. The fum total claimed at this (lore is fourteen thoufand fix hundicd and forty-five pounds, fifteen Hiillings and five pence halfpenny, with additional intcreli from the firit d.iy of June 1798, to which time intereft is calculated in the fchedule. John Patterfon and James Burns aforefald, are the witnefies to moft of the bonds ; Henry Stokes and others to fome few — Newman Dortch, at jjrefcnt in Philadelphia, can prove the feveral dedudions of interell: that they wcrefubmitted to from the convidion that it was the utmoft fum that could be obtained in any cafe even upon bond, and that moft of the debts fo fettled at this ilore were accounts on which nothing could be recovered at law. HALIFAX STORE. The a»nount of lofs at this (lore for which compenfation is claimed, is twelve thoufand three huiidred and twelve pounds fix (hillings and ten pence halfpenny, with additional intereft from the firft day of June 1 798, as aforeliud. John Calder the company's hfior at this florc, is dead. Hef.,- M'Neil who was the affiftant, lives in Peterfburg Virginia, and is the witnefs to the figncd fet- tlements generally, he can prove the books and the liand writing of faid Calder, who is a witnefs in fome inflances. Remarks are alfo pretty generally made oppo' Jite to the names of the debtors, the truth of which can be eftabliflied by Hamp- ton Wade, James Boyd and others of Halifax, William Willis and Spencer Speed of Mecklenburg, and Peter Stokes of Lunenburg, and Newman Uortch, above named. MECKLENBURG STORE. The amount of lofs at this flore for which compenfation is claimed is nine thou, *and one Jiundred and ninety-two pounds three (hillings and one farthing with addi- tional mtereft from the {iid day of June 1798, as aforefaid. Thomas Banks the company's fa^or at this (lore lives in Manchefter Virginia • he IS very infirm and in the different fuits brought by the company in Mecklenburc! his depofition has been taken on account of his infirmity. John Brown war, his afTiftant; it is not known what is become of him— they arc thei;ubfcribing witneffes to the fpecialties &c. generally at this flore, and the hand wntmg of Brown can be proved by Mr. Banks. N Remarks ( 98 ) •Remarks arc made to ihe name, of the different debtors at this ftore, the truth of vhchc n be proved by Jol^n Holmes, John lialUrd, L.w.s Parkam. Thomaa Bun e Speneer Speed, nnd others of Mecklenburg, and the faid Newman ? o tc At this ftore there is a claim under clafs F tor dedua.ons of .nterel by S m ems and mdi^s in Hfteen faits. The records of all thofe fuits are obtamed i' d Sv o be delivered herewith. In every other cafe at each ot the fad, (lores V here any matter of record is dated in fupport of thecla.m, cop-.es ^vdl be pro- cu 4 as foon as poOlble they have long (ince been applied for and prom.fed to be made out as foon as the officers can obtain time for the purpole. The faid Newman Dortch who fuperintended the tranfcribing and arranging theL 1 ( and thi copying and comparing the accounts with the ongmal books can Sfo prove that no dim is brought forward therein for any debt deemed bad or fufpicious at the peace. Thefe three ftores bdng near eaeh other and the wltneffes offered in fupport oF the ckim b ng in the fame neighbourhood, the claimants have jmned them m tin fuprrntarv Memorial particularly as all the books of the faid (lores are now at one pl^ce, the houfe of Mr. Thomas Vaughan in the county of Mecklenburg. The memorialifts in filing their fupplimentary memorial and averments for tljc cl7ns aT he!r other (lores, ''will purfue the fame condudl as in thefe and if any cUims at ^"^>'. " orroncrement (liall appear praflicable, in the courfe of examm- ^r:::::^l^^^^^^ the^Lher Ve-entary memorials are finin.ed f l.tn ftcilitate the enquiries it will be adopted, if it can be fo done without a lofs ^^!X^^J^M^c^ the benefits to arife from fuch improvement. WILLIAM MOORE SMITH, General agsHt for claimants. ^20,(1 J^prlh 1799- CT- 1 n 'IT ..... fnr rarrvin? Into Effect the Sixth Jrticle of the Treaty of Jniily, ^'^,^:::t^N^^SZZeAt^een his Britannic W, anH the Unit.l iitates of America, on the nineteenth of November 1794. The anfwer on the part of the United States to the additional memorial and fpecial ave'^In s for evidence in the claim of Spei^rs Bowman and company for debts cXaed at their Lunenburg. Halifax and Mecklenburg (tor*s. The inc6mplete flate of the original memorial and the fchedules of debts hied ^v^th it by theft claimants, rendered it improper on the part of the United tlT^ anfwer the claim in that State, and more particularly as the claim^rits r 99 ) prayed to be indiiigsd in the jiavilcdgc of filing additional fcIicJules i.i which the debts were intended to be properly clafTed according to the* nature of the ilcniand:., and other information given which wasnccefTiiry to a proper uiiJcribnding of the claim. This the claimants have done with rcfpc^^ to three of their (bre?! to wit, the Lunenburg, Halifax and Mecklenburg ftorcs in their additional memorial v.'hich will nov/ be obfcrvcd on, The debts claimed of the United States a? due at the three (lores before men- tioned, are divided into fix clafles amounting with intercft to the irt June 179^1 '^o£se comvelled to pay in the ordinary courfe of julhce. ..,.,■'*'' ' t" ' Mb As to the fourth clafs of debts, reprefented to be due (fr ASPJIW"" pcfn's who artdead and their property dked, or who ^-"'»°f ^^f^^ Liftence of the impediments, or whol'e refidence and prrfent "^^^f^^;^ '— 4 t A 4- ( 'o' ) iin'Miown, It is innflcd on \\\z part of the UnitoJ Stat'.'s, tiiat aUliO'.ii;lii!iJ UlUdi js dcccaCcd, ;iacl \\\\ pioperty luis been ilivklcl, it doci not follow that tiic Uailcil Sta'.'s iire to be laumicd to jniy the debt. By t)v: law? of Vin;iiii.i the pcrlbn.-.i property of thcd*.cciifcJ is liable in the hands of liis • prcfcntativcs to piy all \\\\ debts, .ind the land:, aiul veal property of tlie deccafed are liablvj in th;- hands of hi; heirs or dcvifecs to j.iv his ipecially or judj^ment debts, ami ti.crcfoic wlv.re ih..- crtate is fo liable it oii^ht to be purfucd by the crcdi'.or. Viioinia Lawi, Ucvilal of I7y4» page 54. Nor althougii it has been fquandercd cither by the deccafcd In hi: life time or by his rcprefent itives, docs it follow that the United States are to be awarded to pay the d^ln. If liie creditor has neglected for a long time to pro. fecute the debtor, or his reprefentatives when he might have prolecuted them, and in thia interval the eltate has been wafted the lofs ought to remain with the creditor for his wilful laches. Tiie removal of a debtor from one county to another, 01 from one State to another, or the creditor's \yant of knowledge at this day of the rcjidence and circumftances of his debtors, cannot form a fubject of complaint, ot civc creditors a right to claim compcnfation from the United States. 5th. As to the fifth clafs of debts reprefented to be for lofies fuftained by iL- dudion of intereft on debts fettled by payment or giving new bonds without fuit. Thefe deduaio4)S it is ftated were fubmi'ned -o form a conviaion that it was the • and that moft of the debts fo fettled 'ft in thefe cafes where the crcdi- :»'; debts were contraaed in retail aaice for juries in Virginia for jfal of which induced tne racr- orbitancy of price compenfatcd utrrtoft that could be obtained even at the Mecklenburg ftore weve accc ... tors and debtors redded in Virginia dealing is not juftly recoverable. 1. goods i'old before the war, to allow ir. chants to fell their goods at higher prices. it for the denial of intcreft which was generally reiuled by thejuiics. This fubjea is obferved upon in the anfwer to Cunningham's cr.e, pages 6z #and 63, and what is there ftated is proved to be true by the letters from the r judges, and other learned gentlemen in the jurifprudence of Virginia, laid before the Board by the agent for the United States at ditTerent times in that cafe, to which •*• the Board are refpeafully referred. 6th. As to the claims for lolTes fuftained by deduflions of intereft made by juries, &c. This defcription of claims is fubmitted to the Board with the obfer- Vations frequently before raaae on them on the part of the United States. Some remarks will now be made on the teftimony by which the claimants exped to fupport their claim and which they fay il the belt ia their pov/er. The Board in their refolution of the 18th December 1798, " refolved that ** they will receive fuch evidence only to prore the debts which are the fubjeds of " claim before them as would have been cocipetent and admiflible to prove the fame " immediately Wf I •< immediately ti'(^vioi:3 to the operation of lav-hil impediments in the covirts qf " the StiUCT v.i'crcthc debtors at thiit time rcfuct'tivcly rcfided ; unlcfs upon fpc «< ciaicMufc Inltnicv/n, and an oidcr of tJic Board for the admiiVion of evidence «« of any oth.cr dcrciiption." To have entitled the claimants to the proot ot their book debts in the court; of Virphiiii the following circumftances would have been ntcc.Tary . The pKiintiff at the tri^l would have boen called on to fwcar o: fok-mnly affirm that the matter in difuute w,is a Itorc accoimt, and that they h;ul no otiier means to prove the delivery ^herein contained. The oath or afurmatioii is to fet forth, that the book contains a tiuc account of all the dealings or lali fettlcr.icnt of accounts betv-ttn the parties, and that ail t": articles tliercin con- tained were bona fide delivered, and that all ju" credits have been jnvcn to the defendant. Such book accompanied with the o;.th or aiTirmntion would have been received a: good evidence to prove the delivery of the articles within tw^ years before the luit was brou^'^ht, but not for an article of a longer Handing, unlclsthc defendant iiad removed from the county wliere the debt was contradlcd, then th(' time was to be extended to three years. A copy of the book with the. like oadj or afTirmation, would have been received in the place of the book, unlefs the book was required to be produced at the joining of the iHue. If the creditor who deli- vered the iLcrchandizc was dead, his executor or adminiflrator on making oath that there were no witncfies to his knowledge to prove the delivery of the goods, and that the book was found fo ftated, and that he does not know of any juft credit to be given ; might give fuch book and oath in evidence for any articles delivered within the time' r.forcfaid. The factor of a merchant rcfidcnt in Great Britain or Ireland v/as allowed to take the fame oath to his book of accounts or to a copy thereof which was admiiTible evidence in like manner and under like limitations, ar was imnofed on tb^ creditor, Each ac^ovnt flioukl exaftly appear before the Board, that the date and amount of each item may be fcfn for the purpofe of afccrtaining what part is within the ope- ration of the aits of 1748 and 1755, to vhich reference has been made, Proof of the hand writing of John Patton formerly fador at the Lunenlurg {lore, who is now rcprefented to be dead, is offered to prove the book debts due at that ftore. The death of a fador at a ftore rendering it impoflible to comply with the requifites prefcribed in the two afts, as befo-^ particuli:_.y ftated, in the like manner as if he had been living, which the provifions of thofe laws had in view ; the courts in Virginia admit proof of the hand writing of the fadtor and clerk or nfliftant in a ftore who made the entries in the ftore bookc of original entries. In the additional memorial il is not Jlated that John Patten made the entries in thejlorc look of original entries. As the proof pf this faft would be required in the courts of Virginia to entitle fuch evidence to be admitted there, fome fufficient caufe fiiould be (hewn to the Board acc*\-ding to the terms of their rcfolution to fatisfy them to difpcnfc with it, or tlie Bo^rd Cannot confiften-,ly admit it, Thefe 4L,K:>^b \^ ( '03 ) •rrnfe obfervations apply olfo to the cvidw-nce to prove the book dohts at th'.« fialifax (lore, Thomas Banks the company's f:iJ\or at the Mecklenburg ftoie is reprcfcntcd to be IHU livir.g ; if his evidence is to be tal'on to prove the book debts at this Ibro, it is infift " that it Ihoiild be admitted only in the manner in which fuch proof would be received in the Courts of Virginia, unlefs fufficient caufe is (hewn to the Board to depart from their refolution on this fubjciS. JOHN READ, Juw. jlgtnt general for the United Stales, ^hjune, 1799. To the Commi/ftoners for carrying Into EJfe£l the Sixth Arlkh of the Treaty of Amit\\ Commerce and Navigation, betiveen his Britannic Majefy and the United States of America, The Memorial of Charles Ofborne, of Yorkfhire, in the kingdom of Great Britain, lifcjuire. Rrspectfully Sheweth, 1 HAT your memori?li(l is a natural bornfubjea of his Britannic majefty. That on the fourteenth day of March 1771, William Nicholls, Phineas Bond and Samuel Mifflin, of the city of Philadelphia, were juftly indebtet to yoi- me- morialift in the fum of fix hundred pounds Pennfylvania <:urrency, for the payment \fhereof in one year from the date with lawful intereft ^X fix per cent, they exe- cuted their joint and feveral obligation in the penalty of twelve hundred pounds like money. Your'memonalift further (hews, that WiHiam Nicholls died infolvent ; that after- wards in the year 1773, Phineas Bond died leaving aflets, and Samuel Mifilin died leaving affets, and thr.t the repiefentativej of the folvent obligors at the treaty of " peace ( 104 ) ..ace between Great Britain and the United States were ckizens of Pcnnfylvanla, pk'efTed of alfets fufficient to difch.rge all the debts of the faid deceafed lolvent obligors. Your mcmorlaUd further fliews, that the principal and intercft of the faid bond ren^Hincd due and owing at the conclufion of the faid peace to your memonahf., that the executors of the faid Samuel Milllln not denying their obligation to pay the^ (liid principal and the interea on the fanae, except intereildxir.ng the war, ablo, lately refuied to pay their equal proportion or half part of the laid debt unlefs a deduaion of thelkid wariatereRwas made, which your memonahlt dul not think himfelf under any obligation of equity or jufticc to allow. Your memorialift further begs leave to ftate and fnew, that a fuit was thereupon commenced upon the faid obligation which came on to trial m the %reme court of Pennfylvania in July 1787, a tranfcript of the record of winch will be produced, .nd at tlie Hiid trial the jury impanneled to ^,ry the ifTue under and m conformity .0 the exprefs charge of the court, deduced fix years and an hal year intereft from a debt bona fide contradted before the peace, and then due and owing to the me- r.iorialill, a fubjeil of his Britannic majefty. Your niemorialia further ftates and admits, that the reprefentatives of the faid Phincas Bond did not avail themfelves or attempt to avail themklves ot the acl^ vantaae of the faid verdia but fo far as the ertaie of the faid Phi neas Bond was in equity and judice anfwerable for one half of the debt aforefa.d, after the •nfolvency ^^ of the faid William Nicholls, i\ ; fame with full intereft has been fettled and fatisfiea. Your memorialift ftates and avers the opinion and verdift aforefaid to have been 'I lawful impediment fince the peace, by which he has adually fuftamed a lols oi one hundred and feventeen pounds money of Pennfylvania, the amount of nx and an half year's intereft on the one half the faid bona fide debt, and the further lofa of intereft upon the faid ^'117, at the rate of fix per cent, per annum, from July J 787, when the fame according to treaty ought to have been recovered, and wou.d have been recovered but for the lawful impediment aforefaid. Your memorallft therefore prays, that his claim may be received for ^i 1 7, Penn- fylvania currency, with the intereft as aforefaid, and fuch award made thereon as equity and juftice fliall require, WILLIAM MOORE SMITH, General a^ent for claimants. ^Oth Novemleri 1 798. In ( '^5 } Jn t/js Claim of CiiAiiLES O'i^BOKKi:. IjEFORE making defence againft this claim the agent fo: the United State, feels it his duty to reprefent that Charles Olborne refides in Great Britain, and it does not appear from any document before the Board that the claim has been maJ.: vith his privity or confent or for his benefit, but on the contrary it may have been inade at the mere inftance of a ftranger who without authority has thought proper t3 bring forward this claim, to try a quefUon of the molt momentous confecjuencci. The agent for the United States fubmits to the Board, whether It Is not juft and reafonabk that there be produced, previous to the filing the unfwer of tlie United States in this cafe, fome fatisfa^ory evidence that the claim has been made with the knowledge and by the diredion of Charles Olborne or his attorney duly au- thorized. It is evident that the United States will neceiTarlly incur great expences in their defence againfl: the many various claims that have been produced ; and the agent for the United States believes there can be little doubt, that the Board has not authority in any cafe where the claimant Avail fail to make good his complaint, to award that he fliall reimburfc to the United States the necefliiry expences incurred in their defence. This confideration it is hoped will alone point out the juftic and reafonablenefs of requiring fatisfadtory evidence by fufiicient powers of attorney or other documents, that the claim made in the name of an abfentee has been duly authorized by a lubjed of his Britannic majefty, for his own ufe and benefit and of pofl-poning until fuch evidence fliall be produced the anfwer and defence of tlu: United States. By the orders of the Board of the 5th December 1798, and 8th January 1799, claimants are lequired to lay before the Board the powers of attorney or other authorities by virtue of which claims have been prefented. In but few cafes have thefe orders been complied with. In the prefent cafe it could be immediately known whether Charles Ofborne had authorized any perfon to file this memorial, in his behalf, and whether a power of attorney is now exifting whicii gives this authority. In fuch a cafe where the order of the Board can be immediately obey- ed, it is deemed reafonable it (hould be, if it cannot, according to the fpirit of the refolution of the 1 5th July laft, notice of the fame ought to be given to the Board, that the United States may not be put to the trouble and expence of enquiries which may be ufekfs from the want of the neceflary pov/ers to make the claim. O la ( io<5 ) In this cafe the memorial makes mention of a record that is not laid before thi Board, and the agent for the United States will take occafion now to obferve that in many^riftances the memorials refer to papers as part thereof, which are not with *hera laid before the Board, and frequently thofe papers are fo material that anfwerg cannot be made before they are infpeaed. It would tend very much to expedite bufinels, if the papers referred to in the memorial as parts thereof were at the fame time exhibited. In fuch cafes where the complaints are fo incompletely prefented if the anfwers on the part of the United States are not made, the Board will picalq to afcribe the delay, not to them but to the claimants. JOHN READ, JuK. /f^ent stneral for the United States, ^ih Mayt 1799- t . In the Clahn ^Charles Osborne. In this cafe the general agent for claimants now nles a power of attorney from the claimants to Mr. W. Bond, and in no inftance has he yet filed a claim wnlefs at the inftance of attornies, in faft regularly conftituteJ, or of the parties perfonally prefentor forae one partner of a firm. True it is that in moft inftances the powers of attorney are in the moft general and ample form to tranfaa all the bufinefs of the grantors in as full and ample a manner to all intents and purpofes, asif they were perfonally prefent, and m gene- ral thefe powers were executed fhortly after the peace; it .is m the correlpondencc between the claimants and their attornies, that inftruaions are given to profecute the claims before the Board. Moft of thefe powers will be wanted by the attornies for other purpofes after the Board may break up. and have hitherto been detained for the purpofe of colleaing as much as poffible from the debtors, and to produce if called for at any trial of caufes yet undetermined. The general agent has long fince given particular inftrudionsto the claimants to fend out new and Yneclal powers «• to make and execute all fuch rcleales and aUign- ' ' " ments ( J07 ) «* ments as (hall be dire(5te'd by the Board, &c." fome of thefe have arrived and are filed, and duplicates fince have come to hand. — He is in daily expe*n:ation oi' ^he reft, and among them, the fpecial power from the prefent claimant. WILLIAM MOORE SMITH, General a^cnt for clahnanls. j!i2(i M.iy, 1799. To the Comm'iffloncrsfor carrying i/ilo EffeB the Sixth Article of the Treaty of Amity Comriierce and Navigation, concluded between his Britannic Mnjefly and the United States of America, on the 1 <^th November 1 794. The anfwer on the part of the United States to the memorial and clauii of Charles Ofborne. '\ J. HE memorial reprefents that William Nicholls, Phineas Bond, and Samuel Mifflin were indebted to the claimant by their joint and feveral bond dated the 14th March 1771, in ^^1200 Pennfylvania currency conditioned for the pay- ment of ^*6oo one year from the date of the bond, with lawful intcreft at fix per cent, per annum. That William Nicholls died infolvent in 1773. That Phinca;i Bond and Samuel Mifflin died leaving aflets. That their reprefentatives were citi- 2ens of Pennfylvania, and poflefled alfets fufficient to fatisfy all their debts. That a fuit was commenced on the faid bond in the fupreme court of Pennfylvania, and on a trial of the caufe at the June term 1787, the jury in conformity to the charge of the court difallowed intereft during the war. The claimant dates the opinion of the court and verdi<^ of the jury to have been a lawful impediment fince the peace, by which he has fuftained a lofs of ^i 17 money of Pennfylvania, being for fix and one 'ialf years intereft, which with intereft on that fum from July 1787, forms the amount of the prefent claim. The defence againft this claim refts on the ground, that in the State of Pennfyl- vania no laws operated againft the treaty of peace, and the juflgment of the court, independent of, and unconnected with ,any fuch law, ir, not of itfclf a lawful impe- diment within the meaning of the treaties, It m ( io5 ) It Is not a-Icdged by the claimant that the vcrdia and judgment of which he com. »>iiiins, v/as conncfied Nvitli, or dependant upon, any lef;i(!;itive aft of any of th« States contravening the treaty oF peace in the State of Pconiylvania, where tli« debt which is the loundation of tliis cliiim \v;ls contraded, and where the debtors refided, no fuch ait of the legidature was pafled or permitted to operaLs after tho condidion of peace. In the Stace of Pennfylvania the courfe of jidlice ever fincc the peace, has been as free and unimpeded in refpedt to Britilli creditors as it was before the war. The demands of Britilh creditors againft American citizens which have been profecuted in the courts of that State, have been judicially decided and afecrtaincd according to the fame principles and rules of law and equity that pre. vailed there before tb!e war; and julHce lias been impartially adrainillered in thofe courts without diftiniftion of perfons, whether Britilh faujects, or American citizens, The verdiift and judgment of which the claimant complains was rendered in tlie fiprcme court of Perinfyb-uiia, in the fame form and under the fame laws which were in force before the war. The contract was originally made fubjedl to the laws of Pennfylvania, which fubmit to the dilbretion of juries and courts the allowance, or difallowance of interell according lo equity. The contraa has been carried into eff:a and fatisfied according to the laws in fjrce where it was made, and no new b\v whatfoever has been introduced on the fubjed determined by tlie jury and court. Tiiis is all that juftice required, and more than juflice the fourth article of the ueaty of peace did not require. This treaty is not to be undcrflood as requirng the iniUtution of new laws or new tribunals for the recovery of debts contracted before the war, Tlie lawful impediments meant to be removed by the treaty of peace, were impediments proceeding from or connedted with leglfladve aUs fubfe- ouent to the commencement of hoifilities. In this cafe the verdia and judgment being entirely independent of any legillative adt contravening the treaty of peace, is not a lawful impediment in the contemplation of that treaty, but the difallowance ,:f intereft being made by a competent tribunal in purfuance of ancient forms, upon vrincinles of equity recognized before the war, is not to be imputed to the operation of a lawful impediment, contrary to the treaty of peace If the matter complained of may be called a lofs, it is not a lofs proceeding from the violation of that treaty. It was intended by the fourth article of the treaty of peace that the courts of julHcc fhould be completely open to the recovery of britilh debts in fterling value, and the courts being open and no law exifting contrary to that treaty, all was done that the treaty required. It may be ftated as an uncontroverted propofitlon, that no lofs or damage is to be retributed by the United States under the treaty of amity, unlefs it has been occa- fioned by a violation of the treaty of peace. In thofe States where no lawful impediments, or in other words no legiflative afls orftatutes containing impediments to the recovery of Britilh debts had been permitted to operate after the peace, no cafe of lofs or damage arifing from the verdici of a jury and judgment of a court can have occurred that is embraced by the fixth article of the treaty of anritv. It was not to enquire into and adjuft the complaints of Britilh fubjedls for loffes and damages ' ( •'^9 ) :;c ro !i;iifiativ<; ' d;'.mages occafioned by judgments of courts rendered in Suucr. whci ads contrary to the treaty ever operated, and whicii there !bve could not ha\e been inlluenced by any fuch lej^illativc acts, but luch loiFes and v. .images only as hau been occailoned by the opeiation of Livs impeding the recovery of Britilli debts. When the demand of a Briu.lh creditor {luill iiave been fairly and regularly afccr- tained by the judgment of a competent court free from the operation of any legifls- tive act contravening the treaty of peace, fuch judgment is definitive a-; to the amount of the fum, principal as well as incerelt ; and whjn fuch judgment fliall have been fatibfied, there can be no foundation for an application to tlic Board iur compenl'ation for a luppoled iof"? arifing from fuch a judgment. Legal judgmenij on the real merits of tne demand where no queftion ol lawtul impediment is im- plicated are not liable to be re-examined bclbte the Boaid. It deferves to be attentively confidcred, that there is a material difference between the fixth and feventh articles of the treaty of amity in relation to the lofles and damages fubniitted to arbitration by thofe two articles, as from their fuppofed (Imi-- larity, the former may be executed in a manner very injurious to the United States. The fource of foundation of the fixth article is the operation of legiflatlve ads contrary to the treaty of peace, which had cxilled, and had produced certain lofTcs and damages to Britifh creditors, for which compenfation could not be obtained in the ordinary courfe of jultice when the treaty of amity took effedl. The fource or foundation of the feventh article is the irregular captures or con- demnations of the veflels and other property of American citizens under colour of avithority, or commiffions from his Britannic majefty. The former article reprefents, that the complaints of the Britifh fubjeds were againft the laws which had impeded the recovery of their debts. "^Fhe latter arti- cle reprefents the complaints of the American citizens were againft illegal captures or conJem.Mlions. The exprelTioo ufed in the former article is " operation of law- ful impediments," that is lo fay, impediments of law or impediments of legifla- tive ads. The expreffion ufed in the latter, is •' irregular or illegal captures or condemnations *' that is to fay judicial pioceedings and fentences. ""J'he ftxth article of the treaty of amity was not intended to enlarge the rights of Britifh creditors beyond vhat they were under the treaty cf peace by relieving againlt the judgments ot the courts of juftice upon die real merits of the demands in cafes where no quelHon of lawful impediments had arifen ; but complaints againft judgments of courts unconneded with laws contrary to the treaty of peace, are not lubmitted to arbitration and cannot be rcdreffed. The fixth article does not refer to the feventh in any particular ; nor has the fe- venth any reference to the fixth in relation to the Jubje^i matter of JuhmiJJhn^ although in ( no ) in the fccondfedion of the feventh article there is a reference to the fixth as to the manner of conllituting a Board and of receiving tcUimony ; confequcntly the conftruclioa of the fixth article is not *o be inlluenced in any degree by the fevcntli article m relation to the queftion of re-examining judgments of courts of juttice between Biitiih fubjeas atul American citizens, in which no qucdion of lawful impedhiicnt has btfoii or coitld be made ; and which were rendered upon the merits of the demands, independent of any laws contrary to the treaty of peace. In the refolution of the Board on the queftion of v/ar-intereft in Cunningham':"! cafe it i-j (hted, that in deciding againft an objeaior. to the payment of war-intereft. they do not preclude, but neccifarily lave all obj^dlions to the payment of intereft which may arife out of the contra^ft, or oihi-rfpectal circumjlances of the cafe. The foregoing obfervations ftate a ground of defence confiftent with that refo^ lution whicli had been made concerning claims arifing out of debts contradled in Virginia j the legiHature of which State in the opinion of the Board, had pafled laws which impeded the recovery of Britilh debfj. During the exiftence of fuch lawful impediments in that State, (the period of which the Boaid has not yet dev cided) it is admitted that intereft on the bonded debts is juftly due, and if not obtainable from the debtors, {hotild be paid by the United States, ' The defence here meant to be taken is created by it\c fpecial clrcumftances of the cafe i and is no more confined to a claim for intereft than to a claim for principal, but is equally applicable to both principal and intereu. It is grounded on this pio- pofition, that it if^ indifpenfahle^ on the part of the claimant, to ihew that the lofs for which he applies for com'penfation, has proceeded dircdtly or indiredly from a legif- Jaikic a^ in violation of the treaty ; otherwHc the cafe is not fubmitted tothcjurif" diiftion of the Board- In the claim of Ciurlcr, OPoorne, no fuch legiflative adt has been or can be produced, and therefore the agent for the United States relies that the Board will dilmifj the claim, as not being within the 6th article of the treaty of amity t JOHN READ, JuM. i A •i V ^4gcni general for the Uv.ltrd Stairs, MAhj'mc I79Q. ( ni) To the Commjftoners for carrying Into EJftcI the S/Mtb Article of the Treaty of ^mitVi Commerce and Navigatiotty concluded between his Britant'Jc M^" jefy and the United States of America. The Memorial of William Shermer, of the Kingdom of Great Britain, Heir, Ex- ecutor and Refiduary Legatee of Richard Shermer, late of Higleworth, in the County of Wilts, in the Kingdom of Great Britain. Respectfully Sheweth, ■i V JL hat the faid Richard Shermer was, and during hifi life continued, and your memorialifl: is and from his birth has been a fubjed of his Britannic Majefty. Your memorialift further begs leave to ftate and fliew that John Shermer, late of Blifland Parifli, New Kent County, Virginia, deceafed, on the nth day of June 1766, made his laft will and teftamcnt in writing, in due form of law which was duly and legally proved after his death, to wit — On the 13th of February 1775, in which he devifed and bequeathed the ufe and profits of the whole of his eftate real and pcrfonal, to his wife during her natural life, and after death he de- vifed the fame to be equally divided between wlioevcr his faid wife fliould think proper to make her heir, and his brother Richard Shermer who furvived the fliid telktor, and he appointed his faid wife executrix ; and Trufton James, Dudley Richardfon, Geoige Booth and Thomas Booth, executois of the faid will, with powe and direftions to fell the faid elhite after the dtccafe of his faid wife, as by the faid lafl will and teilament, a copy whereof is annexed will appear. Your me- morialift further begs leave to ftate and fliew that Ann Shermer, the wife of the faid John Shermer, furvived the tcftator fix days, and on the 15th day of January 1775, (lie departed this life inteftate, and without having made any gift, or appoint- ment whatfoever, in confequence of the power given her in and by the faid will. Your memorialift further begs leave to ftate and drew that afterwards, to wit — On the 13th day of February 1775, the will of the faid John Shermer was duly proved, the other executors therein named, qualified as fuch, and foon after pro- ceeded to lell the whole eftate of t!ie faid teftator, to the amount of eleven thouland pounds and upwards on credit, taking bonds with fccuiity, payable the lit day of May, 1776. Youi ( 1 1. ) Y,„ -um^rlalift funhcr fia.«, avers and refpclfully inCft^, tl«. I.y Ac dcvifc e(l.to and their fureties were the real and borufide debtors of the iaid R.cha.d. Your n'-morialift further (hews, that notwilhfranding the whole proceeds cf the f.i]:;LT;vr .dlly daeto thcnUd Richard Shcr.er, ^1- fa.d execu^^^^^^^^ b ' nl^ld by ^decree of the high court of chancery, afhrn^ed by U^^oun o^ ^ peals of Virginia, in a fait brought by your memoria ills againft the «^^';j^"J^^^[^ for of the will aforefaid,and the reprcfentatives of the next of km of the faid .vnn Si" ner, hlch decree is a lawful Impediment fine, the peace. F-- -[> VJ^ ^,^ Lrialift from recovering a debt bona fule. contraded betore an fhll juftly due a.d owing to your memorialUt a. rcprcfentat,ve ofh-s deceafed fathe.. Your memorJal^fcfurtlierbcp leave to flate and (hew, that Dudley Richardion iourmemor.a-.iL Shermcr and attorney in fa^ \nator26n 2 6 Virginia currncy, principal, and /. 199 i? ^^ '"^ '' '" he nap^r currency of the United States, depreciated to a great degree inrtead o inent hereunto annexed. ^nd vour memorialia further ftates, that although neither the United States or u' ;™x™:;.'tcdi:d dVcLrgcd fr„™ acco.,m»g with you. mcmoruhlt o-J.«w,fe than by delivering the laid certificate. y^^^^. ( "3 ) Your memorlallft therefore avers, that by reafon of the decree aforefald he U prevented from recovering, and has totally loft the principal fum of ^^7473 1 1 6| Virginia currency, and 2"«878 8 3i, the intereft thereon calculated to the firlt of May I 798, for which two fums and the intereft fmce accrued and to .^ccruc ; he prays this his claim may be received, and that fuch award may be made thereon as equity and juftice fhall require. WILLIAM MOORE SMITH, General agent far claimants. toth November, 1 798. •/o the Commr/fmers for carrying into Effia the Sixth Article of the Treaty of Amity, Commerce and Navigation, concluded between his Britannic Majejiy and the United States of America. The Anfwer on the part of the United States to the Memorial and Claim of William Shermcr, Heir, Executor and Refiduary Legatee of Richard Sherner, deceafed. ^ The memorial reprefents, that John Shermer the brother of the faid Richard Shermer refided in Blifland parifti, new Kent county in Virginia, where he intermarried with Mrs. Ann Read. That on the nth June 1766, the faid John Shermer made his laft will and teftament, which was proved on the 13th February 1775. By his will he devifed to his faid wife the rents and profits of his whole eftate during her life, and after her death he devifed the fame to be equally divided between whomfoever his faid wife (hould appoint for that purnofe, and his brother Richard Shermer, who gave a power to the executors to fell the eftate after the death of his wife. That Mrs. Shermer died on the 13th January 1775, fix days after her huiband, ■without making any appointment under the power given by his will. P That ( 1J4 ) IlCoora'ptas'tSdu! :„1 .1 bed, «.h fcc.-,ty, p..,U. . KU May ' Th« hy .he devire afccf.ia, no.hl„s F^J^ *;,r"„ti!.::'" ^rh^.:"'. l,;s .ife bat a life elU.e ».th a P^" , ° ^.f = ,''^';' he fole ,.ro,,e„y of .be was a trullce. That although the .hole of the faid eftate .vas the propeny of Richard Sher- n.cr, the executors diftributed ^--^/.^^ "^^^ ° .^If of the p ocefd of the fuid /5 72 19 8i Virginia currency, ^^^^^^ ^^'^^ ""^ 1^*^^^^^^^^^^^ high court of fh", whkh diftribution has been ^PProv d b^ a dc r t i^. L chancery, and affirmed in the court ot appeals >" V.rg ma ma g^ ^_y the claimant aguinft the f-vwing execu^r "^^;;- Pf^^^^^^^^^ ^nce the peace, ;:;^2;gT;;r^e?o:^;rS^^^ ^^^-^ - the claimant. The ™e.o.., f->'=;„tri„ra^oii^^.J^st"a sre;l*Varc:::;::ued John Shermer, as the attorney \" *^";\\° J ' ^,^^ ^^^^^ Ri,h^rd Shermer, other iy Unlaws of Virg.ma to. ^^^^^^^^^^ ,0^,677 ^ 6 r-cipal, part of the debts due '« K-^'^'"^ currency, part of which he loaned to citizens Ind £199 ^7 .6i •"^7";"J^i;'eere ed I cording to the fcale of depreciat on , of Virginia, which has ^7^^^/;^" ^^'^J^hc dcpofited in the treafury of Virginia, another part amounting to ;^i646 'O o^'^ '^^P and obtained a certificate worth ^^ 1 130- r^u u CA nnrllev Richardfon, has been difcharged from accounting with That the fa^ Dudley R^^^^^^^^ the real and nominal amount, having ^eL cSd fo the f^:?! nominal amount of the faid fum as if paid in fpecie. • for afawlra' Jd fuch further fum as equity and juftice may require. This claim is made o. ^^^^^^^^.f^, ^^^f^^^^- half of theamountof the falesot Johnbiier ^^^^ ^^^^^^^^^^ tions of hiswill, afterdeduaing /I 6 .6 -^ ^^ ^^^^ ^^ ^^^ which fum °ff5J7* »9^^^^^^^^^^^ of Virginia, and reprefentatives of Mrs. bhermei, oy ^ the decree affirmed in the court of appeals m that btalc. The y ( »'5 ) The claim is dfo made for the further fum of ^^2677 2 C\ received by Dud- lev Richardlon as agent for Richard Sheimcr in May 1776, and^^K/; »? t>» for intcrell on thu fum alfo received by liim. Of this £v\G\ 19 b is Hated to have been loaned in 177? and 1771;. tor the benefit of Richard iShermcr, and /•i6a6 10 was paid in I7!i2, into the trcafury ot Virginia on h:3 account, which with the fum of /"Sz 6 6 charged for commilfons on that payment, will leave a balance due in paper money to the executor, of ^,'13 16 i as app'-ars trom the executor'^ account tiled in chancery, and which accompanies the cLuu. The following circumftances appear from the anfwer of Dudley Riehardfon to the bill of the claimant exhibited 3th November 1789, and m anhvcr to the amended bill filed in Augull 1 7r>y. That Jolin Shermcr iiad acquired the ijrcat.r part of his fortune by his intermarriage with his wife Ann, that he had frequently declared in the prelence of the faid Dudley Richardlon, that it he out-iivcd his wife he would divide one half of his elLie among her relations, in the manner ftie Ihould think moil proper. That the faid Dudley Richardlon Ihoitly after the death of the faid Ann Shermer, having conlulted with two of the molt eminent counfel then in Virginia on the will of John Shermer, they gave it as their opinion that the reprefentatives of Mrs. Shermer were entitled to a moiety of John bher. mer'selhte. Th:>t he wrote to Richard Shermer, enclofing him the will, and comes of the opinions, with the luppofcd amount of John Shcrmei's eftate. fhat fhmtly after he received a letter of attorney from Richard Shermer, with mllruc- tionsto receive and colle(5l his proportion ot John Siiermer's ellate. That in con- fequence of the letter of attorney, the laid Dudley Richardlon divided the cftateof John Shermer with the other executors, and received for the faid Richard in bonds bills and accounts, ^'5372 19 54 and paid the other legatees their refpeft. ive proportions. That the laid i-udley Richardlon undertook to coiled the pro- portion of the eftate belonging to Richard Sliermer, with intention to make remit- tanccs to him which he was unable to do owing to the war. That a conhderable lofs has happened thereon from depieciation in paper money. That having taken the opinion of rounfel and communicated the lame to the laid Richard Shermer, who not only acquiefced therein, but duedted his proportion to be collee-led, he conceived he had aded accoiding to law in dividing the eftate. ihat Richard Shermer never claimed more than a moiety, although he received a letter from him in the year 1783, by the hands of the prcfeni claimant whom he faw fre- nuentlv in that year, and who alfo never hinted to the faid Dudley, that there wis an\ claim but to a moiety lei up by his hither, 'i hat the reprdeniatives of Ann Shermer were numerous, and m dilperkd iituations, and that great alteration • of property had taken place among th^m fmce the diviiion of the ellate. On the 7th September 1792, this caufe came on to be heard, on the bills, anfwers, exhibits ana examinations of witnelles, and was then argued by counicl. On conhderation wheieuf, the court gave it as their opir^on, that in the devile to ^•. wife by thetataior John bhcrmcr, itated in the biii, tlie words «• during her ■' " natural ^ ( »'<5 ) "natunllife" ought not to be applied to that moiety of his eftatc of which Kc eS^that Jokty which would continue after her , namely, the .^M./.pro- eny Vourht-Iobe confined to the other moiety wh.ch he gPvc to h.s brother S rd Shermer, and in which he intended her intereft fliould co unue no longt^r ihan me ^oud li o. and confequently that tl.e plaintiff is not ent.tl d to the w.ic'. moiet and therefore doth adjidge, order and decree, that the bill of the pam- Xchimina the laft mentioned moiety be difmiired, a. it is accord mgly hereby fo fir diS; and do further order, that the defendant Dudley R.chardfon fettle au account of his adminiftration, &c. On the iSthOaober 1794, the decree of the court cf chancery was affirmed in the court of appeals. The deliberate decree of the chancellor of Virginia on ihc coMon of a devil-c independent of any la'u^ operating upon the nghts of Bntiilx fubjeas and wUhoutany reference to the national charaaers of thepart.es. which has be n Xmed in^he court of appeals, is reprefented as an vvpcd^mcni contrary to tho treaty of peace. As to fo much of this claim as feeks relief againft this decree, the agent for the United States reds the defence on two grounds, ift. i hat judgments or decrees of compe ent courts on the real merits of the controverfy. unconr.aed with the irJcharaaer of the parties, and where no qucftion concerning the operation upon this point the agent prays leave to r.... . :. Bo.:rd to .he anlwer in the cafe Tcharles Olborne. ad! That the decree in relation to the queftion whether Rid ad Shermer was entitled to the whole, or to the moiety of the teftator's property and eftate, is juft in itfelf and fuch as a court of equity ought to .uvc decreed. The divifionof the eftate of John Shermer was made in 1776, in confequence of th. opinion of two eminent counfel, that fuch was the intention of the teilator which opinion had been fent to him, with ",e will of John Shermer, from which Sabd all the information that Dudley Rjchardfon poffefTed and in whicn opinbn heacquiefced. After this he appointed Dudley Richardfon his attorney "n fa^! as to his moiety of his brother's eflate. There was no change in his opi- nion a to the operation of the devife after the war or during his life time ; but after his death the prefent claimant who is his fon, filed the bill on which the fore- going decree was made. Upon ( n7 ) U„on the bill and ;.nfwcr v/ith the exhibits and proofs, the chancellor conhdcrcd Upon the U u ana ^^^^^^ ^^^^j^ ^^ ^t^^ j,^,,, ^ S;: :; T^ d^Xr:r connitcu V ith the pM^lcso^ c^:'y -d comported t th ! c iv/ «L o • John Shenncr. The greater pavt ot his eUute had eon^o u u cftate, was natural to a perfon lennblc of thok ^'^ " ^'^ ^;V\)f the v.ill, dilHna ..n,iprfVnnH 1 he powcr 2 ven to her in the will, to diipol.. ot a moiccy u< r;,»fc«Kof .» *.,. .here *v;r;;'i/t{o;. "' 'Ti.rin"::i::"'on; legal operation of the word, m "'»-^ j^J^^ /„ fol ixetl and fettle.l rule of I..W ; rreTnSro-ffornlhr? c f ^^^^^^^ rules of law. A llmilar decree, it is behevcd, would have been made on the court of chancery '.n England. The remaining pan of the claim is for ^^877 o °\^'=t='' '{'X^J sSe*;* Dudley Ricl-dlon as agent, under the power given him by Ri^had ''hcrmc . nan of wh ch the agent loaned on bonds and the remaining part he paid in o tlu. r:X*'vir'2nff: ■r'-^=%/^f;?,rp1,:erTL^eK;ra™d'piJmont'. rj";\";x«s:rnd"e";;cifcdlhete'::.horh;::^e\RichL^ eoulf have elccf^d had he been prefent. Under fuch eireumftanee, -he reeeipu, Strt=S:ed^:.csr"^^^^^^^^^^ gWen a fmal dlfcharge for the old debts, and who voluntarily releafed them. With refpea to the loans, they were In paper money, and the ^r=cle value ut the tlmTof thcfe loans has been fully paid, and to no more is there a juil title. This nartof the claim being for depreciauon, it is contended not to be within them nTngat intent'^fthe treaties. L the -afons which have been i^.n^^^^^^^ Ihe Board in the cafe of Dulany, to which the agent for the United States, that he may avoid repetition, prays leave to refer. On the conftruffionof the treaties on the chiim for i«e;;cft. - *e jurifduSion of the arbitrators, and other matters for th. conMcraron of the Board, the ageM ( ,i8 ) for the United States refpeafully refers them to the arguments heretofore laid be- fore the Board. JOHN REA.D, JuN. Jgent general for the United States *. fth June^ 1799' Extraafrom the Anf^er on the part of the United States to the Claim of Wiina>n Cunningham l^ co. The United States and his Britannic majcfty have conftituted by mutual confcntan extraordinary tribunal for hearing and deciding the fpecial cafes con- tained in tl.e 6th article of the treaty of I794. As the cognizance cfth.stnbunai is esprefsly limited to fpecial cafes, nothing can be more md.fpenfably requifite than to underaind the limits' which are let to it. In arbitraments between man and rnan under the municipal regulations of a State, it is a rule that the arbitrators ought ^ot to exceed their jurlfdidlon, and if they do, a remedy may be eafily fupnhed in S°e ordinary courfe 'of juftice, for by the civil as well as the common law an award ujon a call to which the fubmifiion does not extend is void. In arb: tramen ts between nation and nation the fame rule prevails that the arbitrators ought not to exceed their jurifdialcn, but If they do, there being no common controuln^g power o correct thi error, each nation has a jult right to judge lor itielf, and may jultly confideras void every arbitrament upon a cafe out ot to limited junididion This obfervatlon is made to imprcfs on the commiffioners the primary importance of vnderftanding the limits which are prefcrib.d to them by the terms ot the article : For fliould an error unfortunately occur on this point it may lay a foundation tor diflippointing all the good confeciuences that have been expeded from the article, and perhaps for renewing the diflenfions between the two nations, which it is fo defirable Ihould be forever compofcd. In expreffinaon the part of the United States theiropinion, that it is necemirily referved to eac1. nation to determine for itielf whether an award is within the Iphere of U.e fabminion. it is not meant to alfert that tlie arbitrators are not to decide for themfelves whether a cafe is cognizable before them or not, but it is meant to aflcrt i\ ( n9 ) ^ f 1 ,l.u /7- ,// fhchh a cafe to h: cognizable hifurc them, yet ifU app:ars to cHLr that though \^^'yJ-''-^%''^'?JZ n'l rh'ht to dUW'nird the aivard. It tfus were not ration that U u.., "f ^^^J^^i^n a lu^^itcd and an unlimited h:bn.ifllon, T? H ^^not 1^^ the conSoners nnght determine any and every que boa upon ^' '^'' ;rv'rv a tea ^S concern the^wo nations. Thousb tins qnnion >s fo any and ^^.^^X/.^ '^^^^^^^^^ „,,a not be fupported by any authority, yet what a learned reafonable in itfe that it n ea n ^ ,^ ^^ ^^ ^^^.^^^^ ^^^^^^ ^^j^^^^^^ ^^ modern writer has «^^'^ J^ l^^^^^^^ 2L,,s, " It may then happen, as in the exam- thearbhration of nation d^fpu^^^^^^^ exceed their power, and pafs their " pie juft alledged, that th^^^^^^^^^ really fubmitted to their deeilion : And bang .. judgment_o« ^^at has not b^^^^^^^ Y ^^ ^^^^^ ^^^ ^^ ^^^^^^^ ^,^,y ^,^ « called to judge of the ^^^ ^^^^^^^^ ^ ^^^^^^^ Certainly that State never gave .. condemn it to become ube^.o ^^ ^"^ ^^^^^^^^ ^^ ,^„, binding. To avoid " '^f!;^^' ?''"?:! toCe away ecy pretence from bad faith, it is neceffary to all difficulty, and to take away ev > y of the difpute, the refpealve and determine e.atfly tn the cornprmfi, U J^fJ'^.^^^^ ^ ,f^^ J[,,^ Thi. s what IS fubmiued o -b m a^or . _^ ^ J,^^^^^ ^.^^.^ ^^^ ^^^^^ ^^ ^^^^^,„ judgment. It hen their .^ manifeiUy unjurt, fince it is Hence . .,>»=- if a f J J'^^ , tilSlthVtotlt^LtrjJ^c:^^^^ llir^'^^t^JSr^b^rtftrcafe bro't of ,hc f.b.iffio„, the„ *= fcnte„cei. not obligatory. f ,-,n^ w3<5 formed, the courts of juftice In all the States of When the treaty ^^ ' 7^4J^ J^Tn^wn to the negociltors on both fides as well America were open, ^^'l''^' l'^^ fo^, ^icular and extraordinary cafes m as to both nations. ^"^ f^'^^ J'J„\brin L ordina^^ and to ^vhich complete julhce was "0^ ^"ainab e n tn y^.^^^^^^^ ^^^ ^^^_ decide thefe a particular and extraordinary tnbuna ^ ,,ho arc alike ing been made between ^-^.-^^^^ f; ^^ ^^^^^^^^^ tie fa^e empire and in'' manners and morals, ^^jl\H^^ j^^^fj^Xd from the fame fources, it may b' v,hofe princples and ideas o^^^^^^^ ^^^^ ..^ies, and efpecially that ther. hoped to receive the fame ^Jterpietatio ^^.^,^ ^ ^^^^ ^^^^_ will be no difagreement ^^^P^f "S !^' "^'if^^ ,e propofed difcuffion much aid „,iffioners who are fekaed to ^ecf upon it I .e prop ^^^ ^^ ^vill be fought by the agent f^^.^j^^.y^/^ifi'^^^^/r Britifh courts.'whofe pure equity recogmzed ^Y ^^^^^^^^^^^^^^^^ it has been the fource of hap- ^t;^^::^^^ !^-'^^^- anobjeaof thehigheaadmiration among mankind. Commissioners' « « (( (( I20 Commissioners* Office, Philadelphia, i%th Jpril, 1 798. Present, Mr. MACDONALD, Mr. RICH, Mr. FITZSIMONS, Mr, GUILLEMARD. In the Cafe ©/"William Cunningh.^m, and others. The anfwer of the United States figned by their agent, having In this cafe been printed and laid before the Board, ORuERED-That the general agent f .him^ntc or attornev for thefe claimants, have leave to fee and reply to the tneS"n h e^Teks/butwi^ the exception of the mtroduaory argument «; to [mprefs on the commiffioaers (as it Is there faid) thepnmaty importance of unaer. ftanding the limits" of their duty, and inftrufting them, on the authority ofVattel, Ird with reference to a fuppofed cafe of manifeft and intentional wrong, m the extd" trS ta^^^ care that they do not " renew the diflentu^ns between the two natW by deciding in a manner fo palpably " aifurd^ or fo clearly proceeding from " Jruption. or flagrant parUalUy^ as to entitle " eUher natton to d:fregard « S. a'^ardJ' The Board make no further animadverfion on the above argument than thu^ to (late its import, and prohibit all allufion to fuch topics m future. They know no policy but that of juftice,' and look forward to no confequence but the con- fcioufnefs of having done their duty. ORDERED— That the reply tn this cafe be printed ; that this order be therein fully recited, and copies hereof ferved upon the agents for both parties. Extraaedfr«m the proceedings of ih^ Board. G. EVANS, Secrbtary. *^ '* Agent ( 121 ) Agent General's Office, Phlladelpbiay 26th Jprll, 1798. t J HE aaent for the United States enclofes to the Board a letter addrefTed to him fiom the^Attorney General of the United States. It relates to their order ot the I 8th inrtant, which prohibits all allufionsin future to the junfdidion ot the arbi- trators and direds the claimant to take no notice of this argument. As it is ot the utmolt importance to the United States clearly to underhand this ptohibition, their r.gent reipeafuUy rcqueft of the Board fuch explanation of the order as they may pleale to give. JOHN READ, JuN. /Igent general for the United States^ To the Commyjioners under the fixih art'ich of the Treaty of Amity, Attorney General's OfficEp Philadelphia, zxih Jprily 1798^ Sir. 1 HAVE read and conndcrcd the order of the Board of CommilTioners bearlnodatc the i8th of this monih, rctaiive to that part of the argument which in the cate of V/illiam Cunnm!;ham and company, related to the limited juii duHion of the arHtrators. I did not fuppofe that the obfervations which were made upon this point could have beer; mifapprchcndcd in the manner llicy api car to have occn by the Board, and I yet indulge the hope thit when the quuiution from V attd fin be undcrlloo-il by them, as kisby me, that it will not be tliuught in the^ icnlt * " J ^^ degree ( 124 ) U' C.mu.\Wnks Ae award o|na™,,»l-.bu^^^^^^^^^ r„bmiuc>lto tl.cm, tl>= «vara '''f '="„''''=" 7,^ not within tlie terms ot the lub- vo^c fel-li"" ■' *= °*=' *'"=T tr,^ ke"o make an av/ird, though .t be 'Xnr*= »*'ra,or3 ftall '7°"l";]^j: ^^^^^^^^^^ The former is not neither anjud nor ablurd. ^^ 1"° "^^J™ ^c poff'ble, and the latter only .s tl, conteml.l..ted in any partoftnc ■"R""«" ]° -^^.^^ |„ped the ob1er.at.ons v;ou.J ^,:i. to\vhici> the <,t.otat,on .sa, d - „,„,\u,t tire lo-port ol the aoov. :;;::r.;:tfretcoVsU-''wthcBoard. °n,ave always en.er.ined *. o,nlo„ .1^^^^ fto Id n cvirv cafe be made as ear^ »M» fibk;^^^"^^^^^ This retnark has been cludc the trouble ant", the ";l«"«„°^„f", , „" ed'ed the elaimant to take no no- „,ade b^eaufe the Board in the.r «*=' '^^^^^^ ^y „„derlland the rmpo o it ticcofthis argument, and having ■•=«'^""' proceeded to " proh.b.t all aUu- as well as d>e applieat.on ol h I"" «'°"' 'i^;,. ,!„„ ^re Board f !-«*'= P™^" « fions to fuch topics m future. I am at a i ^^^^^^ ^^^^ go^j, birionlTo be und^rftood Do- tt mean r a -^ ft^»;>=^^ ,- ;ao„ of the otK vhlchthe a"eM for the United titatcs '"f"," • | . ,hat he mall be prohibitea ^S: of the treaty on""'ty;CO|.>mcrc -^J. X';,;^ ^oard and therefore that from endeavoring «»."'="!'"',„ he made arainii the United States, and if made an award in fuch cale ""S^' ™"° ''^^^^^^^^^^^ ,oid. Does it mean that rt ,s the aoainft them may be uftly ««■'"'''' "J"! Lu be made by them concerning a debt S n of the Board that wl>«"I' "^^'^ Sen, con.raaed before the war, w.U 7u. to a Britillr fubjea ronr »" Arnarcan t^J ^^^ ^ ^^ ^^^^^ ^^ ^^^^^^ This topic I formerly .iewed and f^ ^t^;^^!^^'^^ niay plcafe to give. J am Sin very refr^e^My. your okdknt fervani. CHARLES LEE. To JOKN READ, Eso^ - I TT •, 1 <::t^tpi relative io Brlt'ipi aehts. Junt for the United i^tates reimvi; Commissioners' ( 123 ) Commissioners' Office', Philadelphia, 2'jth^prili 179S' Present, Mr. MACDONALD, Mr. RICH, Mr. FITZSIMONS, Mr. GUILLEMARD. A REPRESENTATION from the ^Z-^J^^^'^jt 'oT oTt letter from the attorney general «rt"rSat3*e8Th cur ent. having been Board in .he cafe of Cunningham and others, aated the lom fead and the faid orrfer having been alfo read. RESOLVED-That the -"^^f/'-.^^ffjl^^r.^TTLd A^^mlt are dear and explicit and the 8'""f' ^'^^'^f ^;''"jS^^^^^^ with the to which in future .s thereby FohA'ted) •>"= »° '°" ^ . ^y •„ ^.e intent and primary and important que hon, ''f '-^-j^^f ,^^7/ fe„tati, that the agent for r?;r/srr„r.u:e^:;™\isSftLeudeU^^ not fubmitted to the Board. Extracted from the proceedings of the Board, G. EVANS, Secretary.