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. At 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.

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

of Dunmore, Governor Tryon, and Sir Henry Clinton, who were described as "persons holding or claiming property within this State," were attainted of high treason for adhering to His Britannic Majesty, and their estates, real and personal, declared to be forfeited and confiscated.1

The case of Bishop Inglis first came before the board for decisive action on three objections made by the agent of the United States:

1. That the claimant, having been attainted by an act of the legislature passed before the peace on account of his adherence to the King and being of that description of persons known as loyalists or refugees, did not possess a character entitling him to appear before the board.

2. That the debts due to him having been confiscated, he was not a creditor within the meaning of the fourth article of the treaty of peace, but came only within the recommenda tory provisions of the fifth article, of which the board had no cognizance.

3. That he was guilty of manifest negligence in not having proceeded for the recovery of his debts and was bound still to proceed at law for that purpose, having a remedy before the board only for what he should be unable to recover by ordinary legal process.

On the 21st of May 1798 the commissioners unanimously decided the first and second points in favor of the claimant. The third point they reserved for further consideration. After several special arguments and much discussion it came up again on the 19th of February 1799, when the majority of the commissioners declared it to be clearly their opinion, from the evidence before the board, "that at, and before the date of the treaty of amity, the claimant could not have recovered in the ordinary course of justice, and had not therefore been guilty of negligence in not proceeding for that purpose;" that "from the terms of the sixth article, and the inconsistency of the contrary position (as it appeared to them) with the whole meaning and object of that article, the claimant was not now obliged to go through a course of judicial proceedings, for the purpose of trying the experiment, whether the courts would

Laws of the State of New York (ed. 1886), I. 173. The act specifies among those attainted "Charles Inglis, of the said city [of New York], clerk, and Margaret his wife."

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decide differently from the decisions which had been given preceding the treaty of amity;" and that, by the provisions of that treaty, "a right to 'full and adequate' compensation from the United States vested in those individuals, whose cases were then within the description it contained; a right not contingent, or fluctuating on future circumstances, but perfect and entire; to be carried into effect, not according to the precarious result of different experimental proceedings, in their nature dilatory, and tending from the costs of litigation, and the protraction of dispute, to an increase of the evil; but, by one simple and definitive course of remedy, prescribed jointly by the two nations, in the spirit of friendship and peace, for the purpose of speedily putting an end to the only remaining cause of irritation and discontent; and to be exclusively administered by arbitrators, whom they have mutually chosen, and invested with ample powers, for that wise and amicable purpose."

missioners.

In order to prevent a vote on this resolution Withdrawal of Messrs. Fitzsimons and Sitgreaves withdrew, American Com- claiming that they were entitled to do so under the provision of the treaty which required the presence of "one of the commissioners on each side, and the fifth commissioner," to authorize the transaction of business. When the majority offered an explanatory resolution to the effect that the resolution which they had just offered "did not affect the case, where there was no satisfactory evidence, that the claimant could not at the date of the treaty of amity, recover a full and adequate compensation, in the ordinary course of judicial proceedings," Messrs. Fitzsimons and Sitgreaves again withdrew. They seceded again on the 26th of February, when the majority, with reference to the case of Bishop Inglis, offered a resolution that each of the five members of the board was "an arbitrator upon oath, to proceed diligently, and decide all questions, whether of interpretation or of fact, with perfect impartiality, and without any regard to his original appointment, or the manner in which the opinion he is bound in conscience to give, may affect the interest of the parties concerned." Thus, on the question of the duty of the claimant to pursue judicial remedies, there came about a complete deadlock.

Case of Andrew
Allen.

Nevertheless, the board, in spite of several further interruptions, continued in session for two months longer, a few claims being allowed and some dismissed. But in July 1799 its meetings were finally

suspended. On the 9th of that month the commissioners took up the claim of Andrew Allen, based on the operation of an act of the legislature of Pennsylvania of March 6, 1778, attainting him and certain other persons, as "subjects and inhabitants of the State of Pennsylvania," for the crime of high treason, in having, "contrary to the allegiance they owe to the said state, joined and adhered to * the army of the King

2

of Great Britain." The agent of the United States objected to the claim, on the ground that, as the claimant was an inhabitant of the State of Pennsylvania at the date of the Declaration of Independence, he was a subject of that State; that "in fact, the United States were independent so early as 1775, and, on the ever glorious and memorable 4th of July 1776 they solemnly and formally declared to the world that they were independent;" that "the formal acknowledgment of his Britannic Majesty added nothing to their real Independence, and if the treaty of peace had never been made, the United States would have actually continued an independent nation, though at war with Great Britain at this moment;" and that, "though Andrew Allen, after being a subject of Pennsylvania, joined the British forces in December 1776 and returned to his natural allegiance, this did not dissolve the right of Pennsylvania to hold him as a subject, and as its subject to punish him." The British commissioners maintained that Allen, being a natural-born British subject, and being found on the side of his native allegiance at the peace, had not been deprived of that character, and was entitled to appear before the board as a claimant; and they offered a resolution, drawn by Mr. Macdonald, to that effect. To prevent a vote on this resolution the American commissioners withdrew. On the 16th of July, the resolution being again under discussion, Mr. Macdonald expressed the opinion, in which Messrs. Rich and Guillemard are said to have concurred, that the United States stood, from the beginning of the Revolution down to the treaty of peace, in a state of rebellion toward Great Britain, whatever may have

As stated in the act, Allen had been a "Member of the Congress of the thirteen United Colonies, now States, of America, for Pennsylvania.” When the act was passed the British forces held Philadelphia, and it was recited that the persons attainted "yet remain with the said enemies in the city and county of Philadelphia, where they daily commit divers treasonable acts, without any sense of honour, virtue, liberty, or fidelity to this State."

2 Laws of the Commonwealth of Pennsylvania, Dallas' ed., I. 751.