§ From Rufus King
23 April 1803, London. No. 92. Refers to his dispatch no. 87 [25 Mar. 1803], which mentioned the difficulty that had arisen regarding the proceedings of the commissioners under article 7 of the Jay treaty. “Several Conferences have since taken place between me and Lord Hawkesbury, but the Impediment is not yet removed. At my first meeting with Lord Hawkesbury, after the communication he had made to me on this subject, I stated to him the arguments that in my opinion ought to remove the objection which had been raised, and I was in hopes that on a farther conversation between his Lordship and Dr. Swabey, the objection would have been given up.”
“Some days afterwards the Under secretary Mr. Hammond, on the part of his Lordship, proposed to me as a compromise that three per Cent, instead of six per Cent Interest, should be allowed upon the whole of the Claims during the suspension of the Commission. In my last Conference I informed Lord Hawkesbury that I could not consent to the proposed Compromise, seeing no just Principle upon which I could do so: he desired me, however, to confer with the Lord Chancellor upon the Subject, which I shall do tomorrow or the day after. If the objection be persisted in, the British Commissioners will be instructed not to sign the awards unless the Interest, in whole or in part, during the suspension of the Commission, be omitted: in this Case our Commissioners will enter their protest against this Instruction; and from a conversation I have had with the fifth Commissioner, I perceive it to be his opinion that the Awards should then be made, although lessened in their amount, by a total or partial deduction of the Interest during the suspension of the Commission. This course, in his opinion, will avoid the delay and uncertainty of a negotiation between the two Governments respecting the Instruction that may be given to the British Commissioners, and moreover secure to the Claimants their Compensation, except so much thereof as may be with-held by the Instruction of the British Government, which may become the subject of future demand and negotiation.
“As I understand the objection … of the British Commissioners, it is founded on the allegation that the Treaty of 1794. did not foresee the suspension of the Commission that has taken place, that the Convention has not provided for it, and therefore it is to be regarded as casus omissus.1 Our answer is, The Treaty of 1794 sufficiently describes the cases, or, in other words, creates the competence or Jurisdiction of the Board, and moreover lays down the rule by which they are to ascertain the full and complete Compensation to be given to the Claimants. The Convention subsequent to the suspension of the Commissioners re-assembles them, and authorises them to proceed in all respects (except one which is irrelative to the point in discussion) as is provided by the Treaty: it therefore authorises them, posterior to and including the time of their Suspension, to examine and decide, and to grant full and complete Compensation in, all Cases Submitted to their Decision by the Treaty of 1794.
“This Reply has appeared to me so Solid that I have been willing to believe the Cabinet would feel its force, and therefore altho’ a moderate Interest is better than none, I have thought it my duty to reject the overture for a compromise, in confidence that the British Commissioners would either be instructed to waive the objection, and consent to the entire Interest, or at worst, that they would be authorised to proceed on Condition that a moiety of the Interest should be allowed.”