The board proceeded without any notable Question as to Ex- incident until April 1798, when a new and hausting Judicial serious question of difference arose. On the Remedies. 10th of that month the period of eighteen months expired within which, by the terms of the treaty, claimants were required to present their petitions. When the day arrived numerous cases still remained unacted upon by the high court of appeals, and the competency of the board to pass upon such cases, as well as upon cases in which, a decree of restitution having been made, the claimant had not pursued his remedies against the captors, was immediately brought into question.

The American commissioners, anticipating such a contingency, had pressed the subject on the British commissioners during the preceding winter, and had suggested the expediency of reaching a decision before the term for the filing of claims had expired. As this was not done the American agent, on the 10th of April 1798, preferred to the board memorials in behalf of all American claimants whose cases were qualified, by the date of the capture, to admit of a complaint under Article VII.; and, as many of these cases were still unterminated in the courts, the issue was at once sharply defined. When the American commissioners announced their purpose to press for the disposition by the board of claims preferred in cases in which judicial processes had not been exhausted, the British commissioners stated that if their colleagues persisted in the attempt to decide such claims they would be compelled to secede, since they believed that the commission had no authority to render judgment on cases so circumstanced. The formal consideration of the question was then adjourned, and after several conferences it was agreed that the British commissioners should make a statement of the facts to their government, and at the same time say that the board would be disposed to delay decision on all cases then pending before the Lords Commissioners of Appeal until after their adjournment, which usually took place in August, and on all other cases until after the 1st of February 1799, unless sooner determined. by the courts, provided that the British commissioners would concur in such decisions as the board should make.'

1 Messrs. Gore and Pinkney to the Sec. of State, June 8, 1798. (MSS. Dept. of State.)

Article VII. of the treaty, like Article VI., provided that the governments against which the claims were respectively preferred should afford redress where full compensation could not, "for whatever reason, be actually obtained, had and received" by the claimants "in the ordinary course of judicial proceedings." On this question the positions of the commissioners at Philadelphia and at London were precisely reversed. At Philadelphia it was the British commissioners who contended for immediate awards without requiring the claimants to exhaust their judicial remedies. At London it was the American commissioners who assumed this position. Both were partly in the right and partly in the wrong. To render awards where the claimants had a substantial judicial remedy was to obliterate the resort to judicial channels. On the other hand, to require the claimants to exhaust every possible judicial recourse, whether it promised substantial redress or no, would in many cases have had the effect of relieving the two governments of responsibility for their wrongdoing at the expense of the claimant and of working a denial of justice by the delay of reparation.

The British commissioners duly reported the Case of the "Sally." matter to their government, but a definite response not having been made, Mr. Pinkney, at a meeting of the board on June 11, 1798, submitted in the case of the Sally, Hayes, master, in which the Lords Commissioners of Appeal had entered a decree of restitution, but in which the ordinary remedies against the captors, subsequent to such a decree, had not been tried, the following motion:

"That it sufficiently appears in this Case that the claimant could not at the time of concluding the Treaty actually obtain, have & receive in the ordinary course of judicial Proceedings adequate compensation for the loss & damage alleged to have been sustained by the capture and condemnation complained of according to the true intent and meaning of the 7th article of the said Treaty, and that the Board do now proceed to examine the Merits of this claim and determine whether the claimant is entitled to compensation for said loss and damage."

At a meeting of the board on the 20th of June the British commissioners moved that in lieu of the above resolution the following should be adopted:

"That as prceedings are still depending before the Lords Commissioners of Appeal, where the claimant may in the ordinary course compel the sureties who have given bail to answer

the appeal, or the owners of the capturing Vessel, or the sureties on granting letters of marque, to carry into effect the sentence of restitution pronounced in this case, it does not sufficiently appear that compensation might not at the time of concluding the Treaty and cannot now be had and obtained in the ordinary course of judicial proceedings.

"That it is, in this case, the more incumbent on the claimant to pursue his remedy against the private parties who are answerable to him, as it does not sufficiently appear that he has hitherto used due diligence in endeavoring to carry into effect the sentence of restitution pronounced in his favour, he not having exhibited before the court any account of the value of the property decreed to be restored in order that such account duly authenticated might be referred to the Registrar in the usual way to ascertain such value, but has elected to await the production in the first instance of the account of sales by the captors and even for that purpose has suffered a greater length of time to elapse than is satisfactorily shown to have been necessarily consumed.

"That the consideration of the Merits of the Claim be postponed for the present and until it shall farther appear that compensation cannot be obtained in the ordinary course of justice."

The question being put on the latter motion, it was determined in the negative. The question was then put on the principal motion and carried in the affirmative.

Thereupon the British commissioners directed the following declaration to be entered on the journals:

"The British Commrs. declare that they do not think themselves competent under the words of the treaty or the commission by which they act to take any share without the special instruction of the King's Ministers in the decision of any cases, in which the judicial proceedings are still pending in the ordinary course of justice. But in order to obviate all difficulties on this subject, they propose that a statement shall be made by this Board and transmitted to His Majesty's Ministers, and to the Minister Plenipotentiary of the United States of America, in order that such arrangements may by mutual consent be made on this head as may best promote the object of speedy & impartial justice & good understanding. And in the mean time they think it right to declare their readiness to proceed in the cases now before the Board, not subject to this question." The British commissioners accordingly moved

"That a statement shall be made by this Board & transmitted to his Majesty's Ministers, and to the Minister Plenipotentiary of the United States, in order that such arrangements may by mutual consent be made on this head as may best promote the object of speedy & impartial justice and conduce to mutual satisfaction & good understanding."

The question being put on this motion, it was decided in the negative.

The British commissioners then moved

"That copies of this days proceedings be made & transmitted to His Majesty's principal Secretary of State for Foreign Affairs and to the Minister Plenipotentiary of the United States of America."

This motion was agreed to, and the board adjourned to Friday, the 22d of June.

Opinion of Mr.
Gore.

At a meeting of the board on June 28 the British commissioners, at the opening of the proceedings, declared, in respect to the case of the Sally, Hayes, master, that the minutes of the session of June 20 having been transmitted to His Majesty's secretary of state for foreign affairs, and their judgment remaining unaltered, their assisting provisionally, and until they should have received further instructions, at the proceedings of the commission, in any case still pending in the ordinary course of justice, was not to be understood as in any manner concluding their own opinions as to the powers of the board, or the determination which might be taken on the subject by the two governments. Mr. Gore then read an opinion on the declaration of the British commissioners of June 20, and it was entered on the record. It is printed in the digest.

Judicial Remedies.

At a meeting of the board on August 3, 1798, Arrangement as to the British commissioners announced that they had been authorized to proceed to the examination and decision of all claims preferred to the commission, where it should appear that the report of the regis trar and merchants, after a decree of restitution by the lords, had been confirmed by that tribunal, although no further judicial proceedings had taken place in consequence of the confirmation. Dr. Nicholl also stated that the Lords Commissioners of Appeal had passed an order that in all cases decided before the 1st day of August, the captors should peremptorily produce the account of sales on or before the first day of the next Michaelmas term; that in all cases to be heard before the 1st of September the account of sales should be produced before the 1st of the following January; and that in all other cases the account of sales should be produced within one month after the sentence of restitution, in default of which the registrar, at the request of the claimant, was forthwith to

proceed to ascertain the value by the account produced by the claimant, liable to the usual objection by the captors. After these announcements, the board was adjourned to the 1st of October, in order to afford time for the disposition of cases before the Lords.

The decision of the British Government was

Effect of Arrange- received with great satisfaction both by Mr. ment. King and by the American commissioners. Taking the order of the Lords as part of it, it dispensed with all proceedings in the ordinary course after a confirmation of the report of value, and facilitated the procuring of that report by removing the difficulty and delay which had been experienced in obtaining the production of the account of the sales by the captors. It enabled the board to make awards without awaiting the interminable process to compel the captors to comply with the decrees of restitution, the British Government, in virtue of assignments, which were provided for in a clause in the seventh article, taking upon itself to recover the property from the captors.2

Business in the
Courts.

This arrangement having been effected, the high court of appeals was almost exclusively occupied in disposing of the cases that fell within the provisions of the treaty. For some time it had

1 Messrs. Gore and Pinkney to the Sec. of State, August 4, 1798. (MSS. Dept. of State.)

2

Mr. King to the Sec. of State, August 3, 1798. (MSS.) The ordinary course of proceedings in the prize courts is set forth in a communication made by Sir William Scott and Dr. Nicholl to Mr. Jay, September 10, 1794. (Am. State Papers, For. Rel. I. 491-496; 1 C. Rob. 389-394.) While the controversy was pending in the summer of 1798 as to the powers of the board in respect to cases still pending in the high court of appeal, the same eminent practitioners in the courts of admiralty presented the following account of the ordinary proceedings following a decree of restitution:

"When a sentence of restitution has been obtained upon an appeal, the first object is to ascertain the value of the property decreed to be restored, for which purpose we understand that in the usual course of proceedings the claimant is entitled to an account of sales from the captor to be within a short time exhibited on oath; which account of sales is open to all objections that may be taken by the claimant: and the claimant is likewise entitled to exhibit his account of what he deems to be the true value of the property restored, which is open in like manner to the objections of the captor. It is to be observed that the claimant is not bound to call for the captor's account of sales, nor to wait until it is voluntarily produced, but may bring forward his own estimate of the value,