"prompted him to invite." In these "notes" there are the following passages:

"Under the fourth article of the treaty of peace, the points of enquiry are these:

"First. Was the debt fairly contracted before the peace? "Secondly. Did the whole, or any part of the full value of it, in sterling money, remain unpaid to the creditor at the peace? "If these points are answered in the affirmative, nothing can take the case out of the treaty of peace, but the free, voluntary, and uncontrouled discharge of the creditor. A discharge by act or operation of law, unsupported by such free and voluntary act of the creditor, still leaves the debt within the description of fairly contracted, and not fairly paid: and though such discharge by mere operation of law, would be good against an American creditor, it is of no avail against a British creditor; for this plain reason, that the right of the former is governed by the general law of the land, but that of the latter by the special law of national compact or treaty.

"The article contains no exception either as to the nature, or to the amount of the debts thereby secured. The words are incapable of any limited interpretation-all debts' of whatever nature—all debts' to their full amount, principal and interest, according to the original contract, or the law and usage which then prevailed. This seems to be the necessary exposition.

66

To the recovery of the full value, in sterling money, of all such debts, fairly contracted and not fairly paid, it was agreed, and solemnly promised by the two nations, respectively, that the British creditors should meet with no lawful impediment' in America, and American creditors should meet with no law. ful impediment, in Great Britain.

"The expression lawful impediment,' is as comprehensive, as it is applicable to the subject.

"Every cause of delay is an impediment.

"Every cause of delay arising positively, out of the operation and effect of law; or negatively, from the defect of law, is a lawful impediment.

"The scope of the article obviously was, that the law, or the defect of law, should not, on either side, stand between the fair creditor, and his unwilling debtor: that all laws which had been passed against such recovery, should be repealed; all necessary means in law restored; all bars, by past operations of law, having a present effect, removed: that the administration of law in the courts of justice, should afford a remedy for the right, according to the original contract; which nothing, as already stated, but the free, voluntary, and uncontrouled act of the party himself should be held to discharge-In short, that creditors who had already borne their share of suffering, under the common calamity of war, with all its train of incidental evils, including the loss of trade and business, as well

as the want of their money, should on the return of peace, find their just rights, at least, entire; in the state in which they left them; with the same means of making them effectual; and without any obstruction, or cause of delay, so far as depended on the law."

On the other hand, Mr. Macdonald said that the United States might set up that the debt was not bona fide contracted; that the debtor was insolvent, or that for other cause the debt could not be paid; or that the loss had been occasioned by manifest delay or negligence or willful omission of the claimant. But, while these things might be alleged in opposition to liability under the treaty, the presumption was in favor of the good faith of the transaction and the solvency of the debtor, which would be assumed until disproved. "The case," he said, "must be a very strong one and clearly made out to give power to the presumption that if the law had been free, coercion would not have been effectual." He also rejected any general requirement of an application to the courts, in order to test the possibility of recovery in the ordinary course of judicial proceedings, saying that that was a question to be determined by the commissioners as they might deem most conducive to justice, and that the claimant was not bound to attempt a partial recovery if there seemed to be impediments to his obtaining full compensation in the ordinary course.

The notes" of Mr. Macdonald were communicated by the American commissioners to Charles Lee, Attorney-General of the United States, who on the 1st of the following October replied in some "remarks."

Opposition to the "Notes."

Whatever color or support the terms of the treaty may have lent to the general rules laid down in the "notes" of Mr. Macdonald, they excited a very strong antagonism on the part of the American commissioners. So far as the question of applying to the courts was concerned, the American commissioners had before them the example of the commission then sitting in London under the seventh article of the treaty. Claimants against the British Government before that commission had been required to pursue their remedies in the courts by prosecuting their causes to a final conclusion, whether for complete or partial recovery, before the lords commissioners of appeal, notwithstanding that many of the doctrines enforced by the lords commissioners were not in harmony with the principles enforced by the

board. Moreover, by a decision delivered at the February term, 1796, in the case of Ware r. Hylton,' the Supreme Court of the United States had decided (though the decision was not known to Mr. Macdonald when he prepared his "notes") that the fourth article of the treaty of peace enabled British creditors to recover debts previously contracted to them by citizens of the United States, notwithstanding the fact that the debt had been paid into the State treasury during the war under the authority of a State law of sequestration. This case arose upon the sequestration act of Virginia passed October 20, 1777, which, as was shown by cases before the commissioners in Philadelphia, had been one of the most mischievous in obstructing the execution of the fourth article of the treaty of peace. The circuit court of the United States for the district of Virginia, holding the act to be valid, had decided that a debt which had been paid under it into the treasury of Virginia could not be enforced by the creditor. The Supreme Court on writ of error reversed the judgment of the circuit court, on the ground that the act was in conflict with the treaty, which was, under the Constitution of the United States, the supreme law of the land.

The practical difficulty of executing the sixth Practical Difficulties, article, unless good faith in the original transaction and continued solvency of the debtor were presumed, became more apparent as the business of the board progressed. The claims presented consisted largely of merchants' accounts, and one case was cited as an example in which the claim was founded on retail debts alleged to be due from several thousand persons. It became obvious that if each case were examined on its merits-the course which the rules proposed in the "notes" of Mr. Macdonald were designed to avoid the existence of the board must be indefinitely prolonged and its labors very great.

On the other hand, the amount of the claims submitted to the board was very large and daily increasing, doubtless far exceeding the total anticipated by either party to the treaty; and the war that had intervened since the debts were contracted had been attended in America with great injury to private fortunes. Unless the merits of each case were thoroughly examined, it was clear that the Government of the United States

3 Dallas, 199.

would be visited, practically, with the penalty of paying all private debts whose loss had been occasioned by the war, in addition to those whose recovery had been defeated by legal impediments.

On the 6th of August 1798 the board took Cunningham's Case. up the case of William Cunningham & Co., to which reference has heretofore been made. The claim was based on various lawful impediments existing in Virginia. The agent of the United States maintained (1) that there were then no legal impediments in Virginia to the recovery of the debts; (2) that if such impediments had formerly existed the claimants were bound to show, by evidence of the solvency of the debtors at the time when such impediments were in operation, that they could have recovered payment if the legal impediments had not prevented; (3) that debts described as doubtful in lists made up in 1775, and not alleged to have since become good, ought not to be admitted by the board. The last point the board unanimously sustained. The first and second points were decided in favor of the claimants; the commissioners, Mr. Fitzsimons dissenting, resolving that there were lawful impediments in the case, and that to such impediments all losses incurred through the lapse of time, the loss of legal evidence, insolvency of debtors, or other cause which occurred during the operation of the impediments, were prima facie to be ascribed; and that it was for the United States to show that the losses occurred from other causes. this time Mr. Fitzsimons was the only American commissioner, Mr. Innes having died four days previously, and his successor, Mr. Sitgreaves, who did not appear at the board till the 28th of August, not having as yet been appointed.

Allowance of Interest.

At

On the 18th of December 1798 the case of William Cunningham & Co. came up in another aspect, on a claim for interest on the debts during the war. This claim was opposed both by the Attorney-General and the agent of the United States on the general ground that interest should not be allowed during the war. The board however resolved, Mr. Fitzsimons and Mr. Sitgreaves dissenting, that interest ought to be awarded "according to the nature and import, express or implied, of the several contracts;" but that in so deciding against a general objection to the payment of interest the board "did not preclude, but necessarily saved all objections to the payment of interest

which may arise out of the contract, or other special circumstances of the case."

Meanwhile, the affairs of the commission Impending Crisis. seem to have been approaching a crisis. Much of the time of the board was consumed in the discussion of general principles apart from individual cases, and early in 1799 an impression began to prevail that there would soon be a rupture. On the 5th of February Mr. Pickering, who was then Secretary of State, informed Mr. King, minister of the United States in London, that differences among the commissioners doubtless would cause a suspension of their proceedings. The claims, he said, not only immensely surpassed any amount that was contemplated by the United States, but were advocated on principles which where quite inadmissible, since they in effect made the United States the debtor for all the outstanding debts due to British subjects and contracted before the treaty of peace.

On the 19th of February 1799, just two Case of Bishop Inglis. weeks after Mr. Pickering wrote to Mr. King, the first open breach in the board occurred. It took place over the claim of the Right Rev. Charles Inglis, Bishop of Nova Scotia, for debts due on bonds. The claimant, who was born in Ireland in 1734, came to America about 1759, and in 1765 became assistant rector of Trinity Church, in the city of New York. In 1775 he wrote, in reply to Paine's Common Sense, a pamphlet which was burned by the Sons of Liberty. After the Declaration of Independence he refused to accede to Washington's request to omit the prayer for the King and Queen from the service, and in August 1776 closed his church and retired to Flushing, which was then in the possession of the British. After Washington's defeat on Long Island he followed the royal army into New York, and in the following year was chosen as rector of Trinity. Subsequently he served as chaplain of a battalion of New Jersey volunteers, and on the evacuation of New York in 1783 went to Halifax. On the 22d of October 1779 the legislature of New York passed an act of attainder and confiscation by which the claimant and many other British subjects, including the Earl

Am. State Papers, For. Rel. II. 383.

2 Plain Truth Addressed to the Inhabitants of America; Containing Remarks on a Late Pamphlet, intitled Common Sense; By Can

didus. Philadelphia, 1775. See New York Times, May 2, 1897.