principal, agent, attorney, representative, or assignee, as expressed in the certificate, in whose name it has issued, the principal sum and interest for which it is granted, and the day of the month when by him delivered to the Minister of the United States.

9. When either of the Commissioners shall dissent from the opinion of the other two, he shall have the right to state upon the register, his reasons, to be signed by him.

"10. Should it so happen that either Commissioner should feel himself interested in any claim that may come before the Board, he shall be at liberty to decline giving an opinion upon it; and in such case his absence from the Board may be stated in the Register, nor shall such Commissioner be required to sign the Certificate to be sent to the Minister when the Debt is admitted; or the copy of the opinion to be delivered to the claimant, when the claim shall be rejected.

"11. The Secretary will keep a list of all the claims arranged according to the respective dates at which the papers relating to them were presented to this Board by the French Department.

"He will also keep a regular account of the Expenses of the Board, taking and filing receipts for all sums paid for that purpose.

"12. The Board will meet every day, Saturdays and Sundays excepted, from the hours of eleven in the morning till four in the afternoon whenever there shall be any case undecided before them.

"JOHN MERCER. "I. Cox BARNET.

"N. B.-The documents being made a part of the Record in each case, has superceded the necessity of the Rule No. 3."

Erroneous Classifica

tions.

The investigations of Mr. Skipwith disclosed the fact that the terms of the convention, and especially the phrases "liquidated," "prepared for liquidation," and "prepared for verification," bore no relation to the actual state of the claims in the French offices, and furnished no guide to the order in which they should be examined. Under these circumstances the commissioners deemed it their duty to establish some principle for the investigation of claims, whose operation would be uniform and just; and with that view they determined that the claims on the conjectural note ought first to be examined and decided upon, according to the dates at which they respectively originated. This opinion was concurred in by Mr. McClure, when he took his seat at the board; and on the 17th of August the commissioners made the following order:

"17TH AUGUST 1803.

"The Board having reconsidered the 2nd Article of the Rules and Regulations for its proceedings adopted under date the 1st Current as recorded Page 33, and finding by the Report of the Agent of the United States (above recorded) that the Council of Liquidation of the French Government do not consider any of the outstanding American claims as definitively liquidated, although a certain number of them have been thus denominated heretofore, as appears by the Conjectural note' alluded to in the 2nd article of the Convention under which this Board was formed; therefore

"Ordered, That the 2nd article of the Rules and Regulations above mentioned be repealed so far as it relates to the order in which it was proposed to decide on the claims; and that the said claims shall in future be examined and determined upon according to the respective years in which they originated against the French Government."

MSS. Dept. of State.

Difficulties in Examining Claims.

The difficulties of the board in respect of the examination of claims did not end with the promulgation of this new rule. No dates were entered in the conjectural note, and in order to carry the rule into effect the agent of the United States was requested to obtain from the French office a statement of the dates at which the claims respectively arose. While this statement was being prepared authenticated vouchers in certain claims belonging to the first, second, third, fourth, and fifth years of the republic were presented to the board, with information that they were arranged in conformity with the principle which had been established, and that they contained the whole number of claims (independently of the embargo claims) in the first four years. These claims embraced one in the first year, four in the second, twelve in the third, and seven in the fourth. Having no reason to doubt the correctness of this information, the two commissioners, on the 26th of August, directed the liquidation of one in the second year, four in the third, and three in the fourth, intending to suspend any further proceedings on them, and to withhold their final certificate, until the ratification of the convention by the United States was known. But, by the next communication of documents from the French department, it appeared that the first information was entirely incorrect; that there were various other claims belonging to the same years as those that had been presented; and that the true number could not be ascertained until the general statement had been received. A majority of the board, therefore, the third commissioner having taken his seat, determined to confine its attention to the examination of documents, without directing the liquidation of any other claims until, by the receipt of the general statement of dates, the board should be enabled to arrange the conjectural note, and to examine and decide upon the claims according to the principle which had been established. When the statement of dates was received the claims on the conjectural note were arranged under the several years in which they originated. This arrangement, however, did not enable the board to proceed with its examination, since the documents requisite for that purpose had not been fully received. Moreover, many claims were reported upon by the agent of the United States, which were not embraced in the conjectural note. No prize cases were found upon it. Whether the claims included in it would, with interest, consume the whole fund it was impossible to say; but the commissioners declared that they would not consider it their duty to direct any liquidations to be made beyond that sum.1

Commissioners' Controversy with Livingston.

While the commissioners were thus struggling on they became engaged in an acrimonious correspondence with Chancellor Livingston. Livingston had set his heart on the early liquidation of the claims, and this desire was greatly intensified by the importunities of the claimants. By the convention, the commissioners were to act "from the present and provisionally." The exchange of the ratifications of the convention took place at Washington

Messrs. Barnet and McClure to Mr. Madison, Sec. of State, December 26, 1803, MSS. Dept. of State.

2 Am. State Papers, For. Rel. VI. 178–180.

on the 21st of October 1803, and the President's approval of the persons appointed as commissioners was made known in a letter from Madison to Livingston on the 9th of the following month. Meanwhile Livingston had been complaining of the delays of the board, and urging it finally to decide the claims as from time to time they came before it. He had informed the French Government that he would probably begin to draw in September, and he expressed to the commissioners his surprise that, if they doubted their power to act until the ratification of the treaty, they should have accepted the places which they held. The commissioners replied that since their appointment they had been constantly occupied in collecting papers to aid them in the examination of the claims; and they declared that they would execute the convention finally so soon as it became the supreme law of the United States, with the sanction of the competent authorities of that government, to whom alone they were responsible. This. declaration disclosed a radical difference of opinion between the commissioners and the American minister as to the former's powers, not only before, but after the ratification of the convention. While the commissioners maintained that they were to be guided in their action solely by their own views of the meaning of the convention, Livingston thought that they should act in cooperation with him, and defer to his construction, at any rate where it coincided with that of the French Government. When Livingston demanded of them whether they would, "in every case, adhere to the sense" which they had "put upon the convention, whatever may be the decisions of the French Government in concurrence with the wish expressed by the President," they replied: "Our answer is that we will adhere, in every instance, to the sense which we have put upon the convention, except where the changes produced by the French Government, as explained above, shall alter its character in conjunction with the wishes of the American Administration, conveyed to us according to the principles of the Federal Constitution." On receiving this declaration, Livingston declared that the commissioners "must be removed." The commissioners, however, were not removed, nor would it be just to say that in all their positions they were wrong. Their differences with Livingston were sometimes due to the fact that the latter, for the purpose of accomplishing the end for which the convention was designed, was willing to go further than the commissioners in what might be called the creative interpretation of it.

Defectiveness of the
Convention.

Though Livingston took to himself some credit for the framing of the convention, saying that he had drawn it "with particular attention," it was in reality hastily, loosely, and inaccurately constructed. The convention, as he drew it, did not, says Livingston, "exactly meet with Mr. Monroe's ideas, to whom the subject was new. He produced some modifications, and these

Mr. Livingston to Messrs. Mercer, Barnet, and McClure, October 25, 1803. (MSS. Dept. of State.) An extract from this letter is printed in American State Papers, For. Rel. VI. 177.

3

2 Commissioners to Livingston, October 29, 1803. (MSS. Dept. of State.) Livingston to Madison, May 4, 1804, Am. State Papers, For. Rel. VI. 198, 195, 194.

1

again, which have fully answered our purposes, were struck out by Mr. Marbois's wish to give a preference to debts that had a certain degree of priority in the French bureaus. The moment was critical; the question of peace or war was in the balance, and it was important to come to a conclusion before either scale preponderated. I considered the convention a trifle compared with the other great object." Livingston was justified in taking this view of the matter, but his statement shows the manner in which the convention was pieced together. By the preamble the object of the convention was declared to be to secure the payment of the sums dhe by France to citizens of the United States, in compliance "with the second and fifth articles" of the convention of September 30, 1800. This declaration was on its face misleading, since the claims mentioned in the second article of the convention of 1800 were first postponed and then abandoned. The real object of the convention was correctly expressed by Livingston and Monroe, when, in first transmitting it to their government, they stated that they had obtained not exceeding 20,000,000 francs for the citizens of the United States "in discharge of the debts due to them by France, under the convention of 1800." This fact was repeatedly stated by Livingston. There was, however, some ground for the assertion of Skipwith, that it was "a convention of exceptions to the one of 1800."4

Omitted Claims.

The particulars in which the convention of 1803 failed to include claims embraced in that of 1800 were:

1. The convention of 1800 provided for the restitution of vessels and property taken and condemned between the date of its signature and the date of its ratification. The convention of 1803 restricted claims for captures to cases in which the Council of Prizes had ordered restitution.

2. Among the cases that came within the convention of 1800 were claims for freight. By the convention of 1803 the claims were confined to debts "for supplies, for embargoes, and prizes made at sea;" and, as has been seen, the claims for captures were limited to those in which restitution had been decreed. In the French text the equivalent of the word “supplies" was "fournitures." Livingston contended that under these terms claims for freight were admissible; the commissioners took the opposite view.5

3. By Article V. of the convention of 1800 provision was made for the payment of "debts contracted by one of the two nations with individuals of the other." By the convention of 1803 it was provided that this stipulation should not comprehend any claims of American citizens who had established houses of commerce abroad in partnership with foreigners. This provision seemed to exclude even the individual claims of citizens of the United States who had entered into such partnerships.

Livingston to Madison, May 3, 1804, Am. State Papers, For. Rel. VI. 196. 2 Am. State Papers, May 13, 1803, For. Rel. II. 559.

3 Am. State Papers, For. Rel. VI. 186, 196.

4 Am. State Papers, For. Rel. VI. 187.

Id. 188, 190, 191.

Rules of Decision.

Madison instructed Livingston to enter into an arrangement with France for the adjustment of claims embraced in the convention of 1800, but excluded by that of 1803; and, if this could not be done, to endeavor to concert with the French Government such a construction of the latter convention as would be most favorable to all just claims, and especially to those for "freights, indemnities, property put in requisition, and the separate property of individuals” who had established houses abroad in partnership with foreigners. The French Government declined to enter into any new arrangement. It concurred with Livingston, however, in his construction of the word "supplies" or "fournitures." "It can not be supposed," said Marbois, "that the negotiators wished to give a preference to one kind of claims, to the prejudice of money lent, or of debts due for freight; in fine, this meaning is grammatical; for money and all kinds of means of service are furnished, and this also embraces freight." This reasoning was not satisfactory to the commissioners, who maintained that the word "fourniture" could not supply the place of the word "fret," though they held that it might apply to money lent. The principles on which the commissioners acted were stated by them as follows: 2

"We consider the claims of American citizens upon the French Government under the convention of 1800, as directed to be settled according to the regulations and principles established in that under which we have been appointed: We have therefore considered it our duty to inquire:

"1st. Whether the Debt was due in its origin to an American citizen. "2ndly. Whether it existed before the 30th of September 1800. "3rdly. Has such American citizen established a House of Commerce in foreign countries in partnership with Foreigners?

"4thly. Can he by the nature of his Commerce be considered as domiciliated abroad?

"5thly. Has he under the circumstances of his case a right to the protection of the United States?

"6thly. Was the merchandize, or other property, American when it passed into the hands of the French Government?

"7thly. Does the claim arise from Supplies, Embargoes or Captures made at sea; excluding from the word Supplies,-Freight, Indemnity and Demurrage, except when they were claimed as being incidental to Embargoes?

8thly. In Prize Cases we shall examine whether order of restitution has been made by the Council of Prizes? Whether the insufficiency of the captors is shown?

"9thly. We consider it correct to examine the cases upon the 'Conjectural Note' before any other-to decide upon them according to their respective dates, when the state of the papers will allow us to preserve this order.

"10thly. We consider it a fair construction of the Convention that we have no authority to direct any Liquidation after the 20,000,000 of Livres shall be covered; and that our Duties here will terminate on the 21st of October next, that being the day, according to our information, which will complete the year from the time when the ratification was exchanged at Washington.

Having completed their examination of the claims Forms of Certificates. on the conjectural note, the commissioners, on the 15th of May 1804, no returns having been made by the French offices of any final liquidations in the cases already certified, pro

Am. State Papers, For Rel. VI. 190.

2 Commissioners to Livingston, April 30, 1804, MSS. Dept. of State; Am. State Papers, For. Rel. VI. 193.