"I believe the foregoing statement of facts affords the best information I can give on the questions growing out of the resolutions of the House of Representatives, except that which directs an inquiry whether the fund now remaining to be distributed by the Commissioners be sufficient to satisfy the principal sum claimed for refugee slaves and other property entered on the definitive list? To this I reply that it is not sufficient, and that the claims for slaves alone, (considering the decision of the board that claimants for slaves originally taken from other States, but found in Georgia, or the waters thereof, at the ratification of the treaty, shall be entitled to the Georgia average,) if all claims for that species of property be allowed, will alone absorb the whole fund received from Great Britain."i

On the 25th of April 1828, many members of Close of Commission. the House of Representatives having desired a more explicit expression of the opinion of the commission as to the proposed extension of its duration, Messrs. Cheves, Pleasants, and Seawell joined in a letter to Mr. Wickliffe, in which they said that two men.bers of the board, Messrs. Pleasants and Seawell, were of opinion "that no extension of time for the purpose of obtaining testimony by those whose claims have been allowed should be granted," and

1 Am. State Papers, For. Rel. VI. 860-863. In the manuscript records of the joint commission under Article III. of the convention of 1822 it appears that on December 29, 1824, Messrs. Livingston, Johnson, and Bouligny, attorneys for Louisiana claimants, inquired whether proof of slaves having been found on board of British vessels "at a time shortly before the ratification of the treaty (of Ghent), will not throw the burden of their having been removed subsequent to the ratification on His Britannic Majesty's Government?" Mr. Jackson, the British commissioner, replied that the question could become a matter of consideration only when each case should be brought before the board, but that he had "no hesitation in adding unequivocally his opinion that H. B. Majesty can not under the convention be required to make compensation for any slaves who shall not be proved by the claimants to have been within the Territory or Waters of the United States at the moment of the exchange of the ratifications of the Treaty of Ghent." Mr. Cheves, on the other hand, though he did not feel at liberty "to declare any opinion" on the question "until he had maturely considered it," said he could not hesitate to declare "that according to his views of the nature and principles of evidence, whether those of positive institution, or those which he considers as belonging to immutable truth, there may be many cases in which the precise proof which the British commissioner deems necessary, would not be required." He concurred with the British commissioner "so far as to be of opinion that the question propounded, being one concerning the weight and effect of testimony, will most properly be left open till it occurs in a particular case."

that the other member, Mr. Cheves, was "of a contrary opinion." But they were unanimously of opinion that, partly in consequence of the suspension of the business of the board while the bill to extend its duration had been under consideration, some extension of the time beyond the probable sitting of Congress would be necessary to enable it to close in a correct and deliberate manner the business before it, and that a period earlier than the middle of August would not suffice for that purpose.' Congress, practically adopting the view of the majority of the commissioners in regard to the attempt to defeat the Chesapeake claims, passed an act, which was approved May 15, 1828,2 and by which it was provided that the commission should not continue after the 1st of the next September. The last meeting of the commission was held the 31st of August. It was then found that the sums awarded, exclusive of interest, amounted to $1,197,422.18, which left of the $1,204,960 directed to be distributed only the sum of $7,537.82. This sum the commission ordered "to be distributed and paid ratably to all the claimants to whom awards have been made."

Am. State Papers, For. Rel. VI. 962.

24 Stats. at L. 269.

CHAPTER XII.

THE LONDON COMMISSION OF 1853-1855: CONVENTION BETWEEN THE UNITED STATES AND GREAT BRITAIN OF FEBRUARY 8, 1853.

1

Of the convention between the United States Provisions as to the and Great Britain of February 8, 1853, by Choice of Umpire. which a mixed commission was constituted to adjust all claims then outstanding between the two countries, Mr. Seward once remarked that it "had the prestige of complete and even felicitous success." This happy result was due, however, not so much to the particular provisions of the convention as to the manner in which they were executed. The convention provided for the appointment of two commissioners, one to be named by the President of the United States and one by Her Britannic Majesty, who should meet in London at the earliest convenient period after they should have been named, and who should, "before proceeding to any business, make and subscribe a solemn declaration that they will impartially and carefully examine and decide, to the best of their judgment, and according to justice and equity, without fear, favor, or affection to their own country, upon all such claims as shall be laid before them on the part of the governments of the United States and of her Britannic Majesty, respectively." This requirement having been complied with, it was provided that the commissioners should "then, and before proceeding to any other business, name some third person to act as arbitrator or umpire in any case or cases on which they may themselves differ in opinion;" and that, "if they should not be able to agree upon the name of such third person, they shall each name a person; and in each and every case in which the commissioners may differ in opinion as to the decision they ought to give, it shall be determined by lot which of the two persons so named shall be the arbitrator or umpire in that particular case." It thus appears that, in the event of the commissioners

Mr. Seward to Mr. Reverdy Johnson, November 27, 1868. (Dip. Cor. 1868, part 1, p. 380.)

not agreeing on an umpire, they were thrown back on the plan of repetitiously choosing one of two persons by lot in each case of difference, which resulted so unfortunately in the case of the joint commission under the convention of 1822, whose history has been just narrated, and which, by rendering the application of principles a matter of hazard, could scarcely fail, even if the commissioners should faithfully give it effect, to produce inharmonious decisions and contradictory results, yielding to one claimant redress and denying it to another under precisely similar circumstances. This aspect of the plan was well illustrated by Mr. Clay in his computation of the lump sum which was accepted in lieu of the awards that might have been made under the convention of 1822. In estimating the amount to be paid as interest on the claims he deducted one-half on the ground that, as one of two persons, respectively named by the two governments, was to be chosen by lot as arbitrator in each case of difference, it was to be assumed, on the supposition that the lot would fall equally often on each person, that one half of the suitors would obtain interest, while the other half would not.

Efforts to Choose an Umpire.

It was not a groundless assumption. The convention of 1853, however, afforded the commissioners an opportunity to agree on an umpire, and fortunately both commissioners were duly impressed with the great importance of the subject. The American commissioner, in a letter to his British colleague, said:

"By the terms of the Treaty for the adjustment of claims, entered into between the United States and Great Britain, it is provided that the Commissioners appointed by the respective governments shall, before proceeding to any other business, name some third person to act as Arbitrator or Umpire in any case or cases in which they may themselves differ in opinion, and that, if the Commissioners should not be able to agree on some person, they should each name a person as Umpire, and that the Umpire who should act, in case of any difference of opinion, should be designated by lot.

"The Commissioners therefore have not only the duty devolved upon them, by the terms of the Convention, of a speedy and impartial settlement, according to justice and equity, of subsisting claims of citizens of either country on the Government of the other, but also of constituting, in conformity to the same principles of justice and equity, the tribunal which is to be the ultimate arbiter in the decision of these claims. A proper discharge of this duty is of vital consequence to the success of the Convention.

"A disagreement as to the person who shall be selected as

Umpire, and the necessity of resorting to the contingency of a Lot to constitute one in any given case, must detract greatly from the moral effect of any decisions made by the Commission. "If the Commissioners disagree as to men from just cause, a subsequent selection by either party of those men by lot necessarily constitutes an unequal and unjust tribunal between the parties, and the remaining forms of a trial might as well be dispensed with.

"If they disagree, from any cause, the Tribunal is necessarily constituted of men unsatisfactory to the Commissioners, and an adverse decision whether right or wrong would naturally carry the impression to claimants that their cause was lost, not from want of its justice, but for want of a fairly constituted tribunal.

"Under these circumstances it is highly important that the Commissioners should agree and to effect this, should adopt such principles of selection in coming to a decision, as will be most likely to ensure the appointment of an Umpire impartially situated between the Governments and the Claimants, not merely nominally, but actually so.

"This action of the Commissioners on this point is not only important as regards the issue of this Convention, but its successful organization may go far to establish the practice of mutual arbitrations between our own Governments in future, and between other Governments in similar claims.

"Such claims must necessarily arise from time to time under the extended commercial relations of the two countries, and the same difficulties of adjustment of them that have heretofore existed will doubtless continue.

"The delays incident to official intercourse between Governments, the frequent changes in Administrative Officers, the difficulty in procuring appropriations through the respective legislative branches of either Government for the payment of claims if allowed, the fact that the allowance of such claims for the most part is the impeachment of the just and proper conduct of the Executive Officers themselves, and the fact that the discussion and allowance of claims are sometimes embarrassed by partisan conflict and feelings, are circumstances common to both Governments which tend greatly to dishearten claimants, excite national animosities and render it desirable that an equal and impartial Tribunal independent of any such difficulties should be constituted, whose sole duty shall be, in a judicial capacity, to adjust such claims.

"Our great aim then is to constitute a Tribunal, mutually appointed, standing in a just and equal position between the Governments and the Claimants, to adjust these matters; and a failure to do this, is substantially a failure of the great objects of the Convention while it necessarily impairs the hopes of all similar attempts at adjustment."

Mr. Upham to Mr. Hornby, London, September 22, 1853. (MSS. Dept. of State.)