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To James Madison from John Mercer, Isaac Cox Barnet, and William Maclure, 26 December 1803 (Abstract)

§ From John Mercer, Isaac Cox Barnet,
and William Maclure

26 December 1803, Paris. Having been informed by Livingston on 23 Dec. of the ratification of the treaty with France and the president’s confirmation of their appointment, they transmit a report of their business.

[First Enclosure]
§ Report of the American Commissioners

26 December 1803, Paris. “On the 29th. of June, two of the undersigned being in Paris,1 received from the American Ministers, Commissions to carry provisionally into execution the object of the Convention.2

“Upon perusing this Instrument and recollecting the principles of the Constitution of the United States, they were of opinion that no final act could be performed by them in relation to the objects embraced by it, until its Ratification by the competent authorities in America was known. Though this opinion precluded all definitive decisions upon the Claims intended to be provided for, the Commissioners then present did not deem it to be inconsistent with the Duty which that opinion prescribed to adopt certain preparitory measures which might be useful in hastening the ultimate settlement of the Claims within the time limitted by the Convention, in the event of its being ratified in the United States.

“The second article of the Convention declaring its object to be the payment of certain claims, whose result was comprized in a Conjectural Note annexed to it, and there being no note accompanying the Copy which the Commissioners received, they felt the necessity of possessing that document. A Paper was presented to them by the Agent of the United States, with information of his having received it from one of the American Ministers for the Conjectural Note referred to. Though there could be no doubt of the correctness of this information, it was supposed proper to ascertain officially the true character which belonged to that Paper; it was accordingly inclosed to Mr. Livingston and Mr. Monroe with the Letter of the 7th. of July hereunto annexed and marked No. 1.3 The Paper was returned by Mr. Livingston with his answer marked No. 2.4 An exact Copy of the Conjectural note, thus ascertained to be the one intended by the Convention, is annexed to this Report, and marked No. 3.5

“The Convention having provided that the original documents upon which the Claims of American Citizens were founded, should not be removed from the Office of the French Government in which they were deposited, only two modes presented themselves by which the necessary knowledge of their Contents could be obtained; either that the Undersigned should be present in the French Office, or that they should obtain correct and authenticated Copies of the documents and vouchers to be examined apart from the French Department.

“In considering which of these modes would be best suited to attain the object in view, the two Commissioners then present gave the preference to the latter. The office in which the Papers relating to American Claims are placed, is the depository of other public documents, where other business of the French Government is daily transacted; and of course always occupied by the proper officers, and frequently attended by other individuals interested in the proceedings of the office. The inconvenience attending the deliberations of two separate Commissions, engaged in different business in the same Apartments, presented considerations which did not appear favorable to that attentive examination which it might become the duty of the undersigned to give to the questions arising under the Convention.

“In taking the course which has been pursued, the two Commissioners were influenced also by the circumstance, that these authenticated documents would be transmitted to the United States, and would hereafter furnish to their Government the evidence upon which the decisions of the undersigned in each particular case were formed.

“Having had an interview with the Chief of the French office, assurances were received of his readiness to aid in furnishing the documents required. In consequence of which the Letter of the 9th. July hereunto annexed, and marked No. 46 was addressed to the Agent of the United States.

“In the view which the two Commissioners above referred to took of the Convention, they were of opinion that the sixth, seventh & eighth articles might be understood as pointing out the order in which the Claims ought to be examined and decided upon. These articles designated claims that were supposed to be ‘Liquidated’ when the Convention was signed; others that were ‘prepared for verification,’ and others that were ‘prepared for liquidation.’ In the Letter therefore of the 9th. July to the Agent of the United States, he was requested to attend, in the first place, to the Class of Claims called ‘liquidated.’

“While the Commissioners were waiting for the documents belonging to these claims, they received from the Agent of the United States the Letter dated the 20th. July, a copy of which is herewith sent, and marked No. 5.7

“The information contained in this Letter being derived only from the special Director of the fourth Division of the Council of Liquidation, it was not thought proper to consider it as conclusive. The Contents was at the same time communicated to the Minister of the United States, and other steps were taken to ascertain from the higher authorities of this Department of the French Government the real state of the American Claims on the 30th. of April, and how far the different stages which they were supposed to have attained towards a settlement would be considered as marked by the terms used in the Convention. The Letter of the 16th. of August hereunto annexed and marked No. 6.8 relates to this subject and was received from Mr. Skipwith in his Characters of Agent and Chargé d’affaires of the United States, the latter of which he then filled in the absence of Mr. Livingston. This information having shewn that the arrangement in the Convention was without an object so far as the terms used in the sixth and seventh articles might have been intended to designate two particular descriptions of Claims, that the Claims intended to be provided for were not susceptible of an examination in the order which seemed to be prescribed and could derive no superior pretensions to consideration from the state of forwardness to which it was supposed they had been advanced in the French office, it became the Duty of the undersigned in pursuing the main intention of the Convention, to establish some principle for the investigation of the Claims, whose operation would be found uniform and just. After the most attentive consideration which the Commissioners then present could give to the subject, they were of opinion that the Claims found upon the Conjectural Note ought first to be examined and ultimately decided upon according to the respective dates at which they originated against the French Government.

“This opinion has been concurred in by the third Commissioner9 who has since taken his seat at the Board. As there were no dates found on the Conjectural Note, the Agent of the United States was requested to obtain from the French Office a Statement of these Claims arranged under their respective dates. While this statement was about to be prepared, the authenticated vouchers in sundry Claims were, between the 6th. & 26th. of August, belonging to the first, second, third, fourth, and fifth years, presented to the Board with information that they were arranged in conformity to the principle which had been established & contained the whole number found, independent of the Embargo, in the four first years.

“This information was derived from the best view of the Papers which the Agent of the United States could then get. It shewed but one claim to be in the first year, four in the second, twelve in the third, and seven in the fourth year. Having no reason to doubt the correctness of this statement, the two Commissioners proceeded to the examination of these Claims, and after postponing such of them as they deemed it proper to require further information upon, they had directed on the 26th. of August the liquidation of one in the second year, four in the third year, and three in the fourth year, intending to suspend any further proceedings upon them, and to withhold their final Certificate untill the ratification of the Convention in the United States was known.

“The next communication of documents received from the French Department, shewed that the first information was entirely incorrect; for instead of there being only one claim in the first year, others were presented which belonged to that period, and to what number they might be found to amount could not be ascertained untill the general statement which had been required, was received. The same error ran through the other years within which any claims had been presented. Whether this proceeded from a desire to hasten the examination of particular claims, or from the want of order and arrangement in the French Office, it was important that the Commissioners should not be subject to the same inconvenience in future. A majority of the Board, (the third Commissioner having joined it on the first of September,) therefore determined to confine their attention to the examination of the documents, without directing the liquidation of any other claim untill the statement of the dates should be obtained; by which the undersigned themselves would be enabled to arrange the Conjectural Note, to understand whether the vouchers were presented in the order prescribed, and to decide upon them according to the principle which had been established. This statement being now received, the Paper marked No. 7.10 exhibits the Claims on the Conjectural Note, except those arising from the Embargo, arranged under the several years within which they originated against the French Government.

“The Cases found upon the Conjectural Note, in which the documents have been presented to the Board, and Reports thereupon made by the Agent of the United States stands this day in this Office,

Year 1°. 2.
2°. 19.
3°. 34.
4°. 11.
5°. 3.
6°. 0.
7°. 0.
8°.  0.

“From this statement it will be seen that the Claims belonging to no one year are yet fully before the Board.

“Other Claims have been reported upon by the Agent of the United States, which not being embraced by the Conjectural Note, will not, according to the construction which the undersigned give to the Convention, be entitled to an examination, untill those found upon the note shall have been settled.

“The Cases which arise from the Embargo, belong to the second year, and are understood to be in considerable forwardness.

“The Statements annexed to this Report, connected with No. 7, & marked No. 8,11 shew the Claims which were in the French Office on the 30th. of April ulto., but not included in the Conjectural Note: and also some which have been presented since that period: others are likewise daily coming in.

“It will be observed that no prize cases are found upon the Conjectural Note. The Paper No. 9.12 contains the probable estimate of current expences which will be incurred by this Board.

“Though the Undersigned believe that the principles of the Convention will cause certain deductions to be made from the Conjectural Note, they cannot at present pronounce with any degree of certainty that the Claims which it embraces, including the Interest due upon them, will be covered by Twenty millions of livres; beyond this sum they will not consider it their duty to direct any liquidation to be made.

“The undersigned have no reason at present to doubt but that they will be able to discharge the Duties which have been assigned them within the time limitted by the Convention.”

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