given special attention to such cases, and since the beginning of the year had decided 103 of them, in 61 of which there were decrees of restitution, in 21 orders for further proof, and in 4 condemnation as to part and orders for further proof as to the residue of the cargo. In an appeal for freight the appeal was rejected, and there were 16 decrees of condemnation. Not a little delay however was encountered in the high court of admiralty, owing to the increasing age and infirmities of the judge, Sir James Marriot. On the 16th of October 1798 he resigned, and was succeeded by Sir William Scott, by whom the business was promptly dispatched.

Suspension of Board's
Proceedings.

After the reassembling of the board in October 1798 its proceedings were continued till July 20, 1799, when the British commis

sioners presented the following paper:

"20 JULY, 1799.

"Dr. Swabey and Dr. Anstey stated to the Board that they had received his Majesty's commands intimating to them that in consequence of information received from his His Majesty's minister to the United States, that the proceedings of the Board of commissioners appointed under the sixth article of the treaty of Amity, Commerce and Navigation between His Majesty and the United States are suspended by the refusal

and may claim to have that considered as the measure of the restitution, subject to the objections of the captor.

"The registrar, upon a view of the accounts, supported by such documents as the parties choose to bring in, determine in the first instance the value; this report being liable to the revision of the court, on the objection of either party. If there is no exception taken to the report, or if the exceptions are overruled, the report is then confirmed. The value being thus ascertained, a motion issues against the captor and against the sureties who had given bail to answer the appeal to the extent of their bond to bring in or pay over the value, within a time fixed within the discretion of the court. If any order made by the court upon the captors either with respect to bringing in the account of sales, if the claimant requires it, or with respect to bringing in the value however fixed, is not complied with, and no satisfactory reason for non-compliance is given, the court at the prayer of the claimant, issues an attachment against the other parties, which is executed by the claimant with such diligence as he can use, wherever the parties can be found, and by any person the claimant may entrust for that purpose, the usual and most advisable practice being to employ the officer of the admiralty within that jurisdiction, where the parties to be attached reside.

"In the case of King's ships, the remedy goes no further than by attaching the commander and his sureties for answering the appeal. In the case of privateers it extends to the several owners, who are each bound to the 5627-22

of the American commissioners to accede to the determination of the majority of the members of the Board, and that no award has hitherto been made to any of His Majesty's subjects soliciting redress, under the said sixth article; it is His Majesty's pleasure that they decline attending the meetings of this Board, until they shall receive farther instructions upon the subject; at the same time they are especially instructed to accompany the communication of this intention on their part with an express declaration that the King is determined to fulfill with punctuality and good faith, the engagements which His Majesty has contracted by his treaty with the United States, and that whenever the obstacles which appear at present to impede the progress of the Commission at Philadelphia shall be removed, they will be instructed to resume their functions."

full extent of the value decreed to be restored, and to the general securities given at the time of obtaining letters of marque to the extent of their bond; against whom a monition may be obtained as soon as an attachment is issued against the captor and his sureties on the appeal, without the necessity of proceeding to serve that attachment on either of them. If this latter monition is not obeyed, an attachment may issue in like manner against them. These attachments being in force, the course of legal remedy is terminated.

"An exception to this mode of proceeding takes place where the property has been sold, upon each party refusing to take it upon bail pursuant to the provisions of the prize act, in which case the moneys arising from the sale are ordered to be brought into court, and deposited by the regis trar in the Bank of England, or in some public securities at interest, and the net proceeds of such sale are to be taken as the full value. A monition would issue against the persons in whose names the moneys were deposited to bring them into court, or to pay them over to the claimant.

"If the claimant has suffered the regular time of distribution to pass without proceeding in his appeal, and distribution has actually taken place, the claimant is barred his regal remedy, otherwise a premature distribution will not protect the captor against the demand of the claimant. "In case an inhibition be returned unserved, the captor being dead, a new inhibition must be taken out against his representatives to the effect of the former. If that inhibition be returned with a certificate that no representatives are to be found, proceedings may then be had against the owners of the privateer and the sureties to answer the appeal, but in the case of King's ships against the sureties only.

"We have omitted to mention that if the proceeds can be shown to be in the possession of any agent or other person whatever, a monition may be obtained against such person to bring the proceeds into court.

"Commons, June 28th, 1798."

"W. SCOTT.
"J. NICHOLL.

A consideration of this paper, in connection with the instructions given to the British commissioners for the government of their conduct at the board, will disclose the substantial character of the relief afforded by the action of the British Government.

Resumption in 1802.

Though the statement in the foregoing paper that no award had been made to any claimant under Article VI. of the treaty was not entirely accurate, it is true that the board had been broken up in the manner described, and that the result of the interruption was substantially such as was declared. The retaliatory suspension of proceedings under Article VII. continued for more than two years and a half.1

On the 8th of January 1802 however Lord Hawkesbury and Mr. King concluded a convention by which the claims under Article VI. were settled for the sum of £600,000, and the article itself, except so far as it defined the course of procedure under Article VII., annulled. It was also provided that the commissioners under the latter article should, immediately after the signature of the convention, "reassemble and proceed in the execution of their duties according to the provisions of the said seventh article, except only that, instead of the sums awarded by the said Commissioners being made payable at the time or times by them appointed, all sums of money by them awarded to be paid to American or British claimants, according to the provisions of the said seventh article, shall be made payable in three equal instalments, the first whereof to be paid at the expiration of one year, the second at the expiration of two years, and the third and last at the expiration of three years next after the exchange of the ratifications of this convention." These terms of payment were the same as those prescribed in respect of the indemnity of £600,000 for the claims under Article VI.

The ratifications of the convention were exchanged at London on July 15, 1802, but in accordance with its requirements the commissioners under Article VII. reassembled on Monday, the 15th of the preceding February, and proceeded in the execution of their duties.2

Allowance of
Interest.

Soon after the commissioners reassembled a question arose as to the allowance of interest on claims during the period of the suspension. It was finally resolved on the 30th of April, by the concurring

"We have been stopped by the difficulties that have occurred under the 6th article of the treaty, and not by anything depending on ourselves, or connected with our own duties. The commission in America has been wretchedly bungled. I am entirely convinced that with discretion and moderation a better result might have been obtained." (Wm. Pinkney to J. Pinkney, August 27, 1800, Pinkney's Life of Pinkney, 37.)

* Messrs. Gore and Pinkney to the Sec. of State, February 17, 1802. (MSS. Dept. of State.)

votes of the two American commissioners and the fifth commissioner, that interest should be allowed for the whole period from the time the claim arose to the date of the award. A motion to this effect was made by Mr. Gore on the 16th of April, and was supported by Mr. Pinkney in a forcible opinion which is printed in the digest. The view stated by the British commissioners was that, as the treaty of 1794 did not contemplate the interruption of the proceedings, it did not intend to authorize the allowance of interest during such interruption; and, moreover, that such an allowance of interest was not provided for in the convention under which the board reassembled.

Illegality of Provision Orders.

Among the questions determined by the board, none was more elaborately argued than that of the legality of the orders in council which directed the stopping and detention of all vessels laden wholly or in part with previsions and bound to any port in France, and the sending of them to such ports as might be most convenient, in order that such articles might be purchased in behalf of the British Government. An excellent summary of the contentions on this subject, of the grounds on which the legality of the order was maintained on the one hand, and its illegality pronounced by the board on the other, is given by Wheaton in his Elements of International Law.'

The first ground on which the orders were justified was that at the time of their issuance and enforcement there was such a prospect of reducing the enemy by famine as made provisions bound to his ports so far contraband as to justify their seizure and appropriation by Great Britain, that government paying the invoice price, a reasonable mercantile profit thereon, and . freight and demurrage. There was, so it was argued, support for this view not only in the works of publicists, but also in that stipulation of Article XVIII. of the treaty of 1794, which, after reciting that there was "difliculty" in "agreeing on the precise cases, in which alone provisions and other articles, not generally contraband, may be regarded as such," required that "whenever any such articles, so becoming contraband according to the existing law of nations," should for that reason be seized, they should not be confiscated, but should be paid for, and that the captors, or, in their default, the government

Lawrence's edition, 1855, pp. 555–561.

under whose authority they acted, should pay the masters or owners of the vessels "the full value of all such articles, with a reasonable mercantile profit thereon, together with the freight, and also the demurrage" incident to the detention. To this argument reply was made that the stipulation of Article XVIII., since it referred to "the existing law of nations" as the criterion, did not effect any alteration in the rules which previously governed the subject; and that, according to those rules, the prospect of reducing the enemy by famine must be actual and immediate, as in the siege, blockade, or investment of particular places, and not vague and impalpable. In the case before the board there was no such prospect. While the enforcement of the order was productive of inconvenience to the enemy, there was no possibility of producing an actual famine by it.

The second ground assumed in support of the orders was that they were necessary to Great Britain, which was at the time threatened with a scarcity of provisions. To this assumption answer was made that the necessity which would warrant such a method of supplying a nation's wants must be real and imminent, and without other means of relief; that the offer of better prices in English than in French ports would have attracted importations; and that in reality after the orders were carried into effect an offer by the British Government of a bounty on imported articles soon caused the market to be overstocked. With such arguments the contention that provisions had properly been treated as contraband was met and overcome. opinions of Messrs. Gore, Pinkney, and Trumbull in the case of the Neptune, printed in the digest, will more fully disclose the various grounds on which the orders were determined to be illegal. The proceedings of the board were brought Close of Proceedings. to a close on the 24th of February 1804, all the business before it having been completed.' The amount and progress of the business before it at various stages of its existence are disclosed by reports made at the periods of its suspension and conclusion.

Transacted.

The

When its proceedings were interrupted in Amount of Business June 1798 by the controversy touching the disposition to be made of cases still pending in the courts, the awards against Great Britain made and

Messrs. Gore and Pinkney to Mr. Madison, Sec. of State, February 24, 1804. (MSS. Dept. of State.)