Attorney General’s Office Philadelphia 1st August 1799
The Commissioners named on the part of the United States for carrying into effect the sixth article of the Treaty of Amity, Commerce and Navigation have deemed it their duty to separate from the other members of the Board, by which measure a stop is put to the proceedings of that Board, it being stipulated that to constitute a competent Board one of the Commissioners named on each side and the fifth Commissioner shall be present.
It is sincerely to be regretted that an article produced by a mutual spirit of Amity and a high sense of honor and justice should from any cause be interrupted in its execution and that the good purposes which it was intended to accomplish should not be speedily and satisfactorily effected. At the same time it is a source of consolation, that the parties to the treaty have expressly agreed “that they will from time to time readily treat of and concerning other articles and endeavour so to form them as that they may conduce to mutual convenience and tend to promote mutual satisfaction and friendship.” It may therefore be confidently hoped that the same spirit of Amity and the same sense of honor and justice which produced the Articles will lead to such an explanation of it as shall fully answer its original intentions. In expectation that an attempt will be made by negotiations to explain and adjust the differences that have arisen between the American Commissioners and the other three in the interpretation that is put on the 6th article of the Treaty of Amity, I propose to state the material points in which those differences of opinion have been exhibited and that the subject may be better understood I will here recite the fourth article of the Treaty of Peace and that part of the treaty of amity which describes the matters submitted to the board.
Fourth Article of the Treaty of Peace
“It is agreed that Creditors on either side shall meet with no lawful impediments to the recovery of the full value in sterling money of all bona fide debts heretofore contracted.”
Sixth Article of the Treaty of Amity
“Whereas it is alledged by divers British merchants and others his Majesty’s subjects, that debts to a considerable amount which were bona fide contracted before the Peace still remain owing to them by citizens or inhabitants of the United States and that by the operation of various lawful impediments since the peace, not only the full recovery of the said debts has been delayed, but also the value and security thereof have been in several instances impaired and lessened, so that by the ordinary course of judicial proceedings, the British Creditors cannot now obtain and actually have and receive full and adequate compensation for the losses and damages which they have thereby sustained. It is agreed that in all such cases where full compensation for such losses and damages cannot for whatever reason be actually obtained had and received by the said creditors in the ordinary course of Justice, the United States will make full and complete compensation for the same to the said creditors. But it is distinctly understood that this provision is to extend to such losses only as have been occasioned by the lawful impediments aforesaid and it is not to extend to losses occasioned by such insolvency of the debtors or other causes as would equally have operated to produce such loss if the said impediments had not existed, nor to such losses or damages as have been occasioned by the manifest delay or negligence or wilful omission of the claimant &c &c.”
In carrying into execution the 6th article of the treaty of amity, it became a subject of consideration at the Board what the treaty required the claimant to prove to entitle him to an award. It was urged on the part of the United States, that according to a reasonable interpretation of the Treaty of Amity the claimant was bound to prove the solvency of the debtor at the peace and the operation of some lawful impediment producing the loss and damage for which compensation was demanded from the United States and that full compensation for such loss and damage was not attainable in the ordinary course of justice.
In the answer to the claim of William Cunningham & Co. relative to debts contracted in Virginia, this was a topic of argument to which I beg leave to refer you, if you should think proper to make it an object of your particular investigation. Printed copy from page 5 to 13.
Whether the claimant was bound to prove the solvency of his debtor at the peace, or whether that was to be presumed in all cases in a state where lawful impediments had existed unless the United States proved his insolvency at that period, became a question before the Board. The importance of it is too manifest to be illustrated.
On the 6th of August 1798. in the case of William Cunningham & Co. it was resolved that lawful impediments contrary to the treaty of Peace existed in the state of Virginia and that so far as the full recovery of the debts in that case claimed, had during the operation of the said lawful impediments been delayed, and the value & security impaired or lessened or totally lost by lapse of time, the loss of legal evidence, insolvency of debtor or otherwise, such delay of recovery and dimunition or loss of value and security, are to be ascribed to the operation of the lawful impediments unless shewn to have been occasioned by other causes, which would have equally so operated if the said lawful impediments had not existed, or to have arisen from the manifest delay or negligence or wilful omission of the Claimant. From this resolution Mr. FitzSimons the only American Commissioner present dissented, stating on the Journals the ground of his dissent to be, “because a principle is laid down which throws the whole burden of proof upon the United States, in every case where legal impediments existed, contrary as it is believed to the clear principles of law and equity. By this decision the Creditor is excused from proving that his debtor was solvent at the expiration of the War, or that he has used due diligence for the recovery of his debt: to avoid the payment, the United States must prove the contrary in both instances.” A successor to the other American Commissioner, who on the second of August had departed this life, was not then appointed. A copy of the resolution is herewith sent No. 1.
Whatever doubts might be entertained on the real meaning and import of this resolution they will be found entirely removed by a subsequent resolution. In the care of George Anderson on the 26th June 1799 the Board took occasion to consider their resolution in the case of William Cunningham & Co. passed on the 6th August last, and passed another by which it appears, that Mr. FitzSimons had given the true exposition to that resolution respecting the onus probandi in his reasons of dissent. The Majority of the Board say, “that the said resolution in the case of William Cunningham & Co. by necessary implication lays down the rule in the matter in question, and on the plainest principles of reason for what ever deprived the connection of the means, is in the first instance to be held as the cause of his not arriving at the end, whatever in the positive institution of the law on the settled course of judicial practice prevented him from proceeding to the recovery of his debt, is to be deemed a lawful impediment which prevented such recovery, consequently the loss arising from his not recovering is in the first instance to be ascribed to the operation of the said lawful impediment, that the above propositions are primâ facie complete, standing on their own intrinsic evidence, and subject only to the effect of sufficient evidence to the contrary, so that it is not incumbent on the claimant to prove the solvency or capacity of the debtor to satisfy the creditor at or since the peace, but open to the United States to meet the primâ facie evidence already stated by reasonable evidence to the contrary.” No. 2.
From this resolution the American Commissioners dissented. The rule is here unambiguously laid down, that the claimant is not bound to prove the solvency of the debtor at the peace, but that the solvency of the debtor at that time is to be inferred from the existence of lawful impediments, afterwards. This inference appears unwarrantable.
Though a state passes laws to prevent the recovery of British debts, some of those debts might be due from solvent and others from insolvent, indeed all might be due from insolvent persons. The policy of such a law might be as well to prevent the Creditor from obtaining satisfaction from those who could pay, as to prevent him from imprisoning those who could not pay. The existance of lawful impediments in a state is therefore no evidence at all, not even prima facie evidence, of the solvency or insolvency of the debtors at the peace. According to three Commissioners every Citizen of Virginia, indebted to a British subject at the peace, is to be presumed to be able to pay his debt, because afterwards laws existed in that state impeding the recover of British debts generally for a certain space of time. This proposition is not more strange than the reasoning used in support of it. “The rule is laid down (say those Commissioners) on the plainest principles, of reason for whatever deprived the creditor of the means is in the first instance to be held as the cause of his not arriving at the end.” Let me ask if the laws prohibiting the creditor from suing an insolvent debtor deprived him of the means in the first instance of recovering payment; or was not the creditor in such a case of an insolvent debtor at the peace deprived, in the first instance and antecedently to any lawful impediments, of the means of obtaining payment by the insolvency of his debtor? The claimant alledges as a necessary part of his case, that a debt was due to him at the peace, which would have been paid if the law of the state had not hindered him from suing. This allegation implies necessarily that the debt was due from a person able to pay it, otherwise payment could not be obtained by legal coercion. An insolvent debtor might be imprisoned, but according to the laws of Virginia, before and since the revolution, he might be discharged as such. The allegation being made by the claimant to entitle him to redress, it lies on him to prove it, not only by the plainest dictates of reason, but according to a rule of jurisprudence universally practised.
It is remarkable that in the claim of Cunningham & Co, the debtors were classed as doubtful and good, and the Board determined in 1798. that the debts classed as doubtful, and stated to have been so in the year 1775, and not alledged to have since become good, are not the subject of claim before the Board yet in 1799, in the case of George Anderson, the three Commissioners have declared an opinion, that because lawful impediments existed in Virginia after the peace, every citizen, debtor to a British subject at the peace, was to be presumed solvent then, unless the United States proved the contrary. The practice of the merchants to keep regular books stating the balance of every man’s account solvent or insolvent; the lapse of time from the commencement of hostilities till the peace, embracing upwards of eight years, during which time all commerce was destroyed, and consequently the anual profits of industry being taken away, every man was more or less sinking under pecuniary embarrassments; not to mention the losses unavoidably in the country that is the seat of war; were things well known to the three Commissioners; yet they have determined that the onus probandi of solvency at the peace, is imposed on the United States, because, after the peace, the Courts of justice were for a time shut against British Creditors, in some of the States.
So too, if in a state, lawful impediments, contrary to the Treaty of Peace, existed for one or more years; for the continuance of such impediments could not possibly go beyond the adoption of the present Constitution of the United States in the year 1788, the 6th Article thereof having declared all treaties made or to be made the Supreme law over all laws of individual States; this resolution ascribes to the operation of such lawful impediments the creditors omission to demand payment, and to sue, after the express repeal of these lawful impediments; that is to say, from the adoption of the constitution until the treaty of Amity, a space of several years, and excuses him from shewing that he used any diligence by personal application or legal prosecution, during this space of time, to obtain payment from the debtor; and imposes on the United States the duty of proving the negligence of the Creditor.
On the 21st June 1799 in the case of John Bowman and others, surviving partners of Speirs Bowman & Co. the two Commissioners named on the part of Great Britain and the fifth Commissioner “resolved (to prevent misapprehensions and loss of time in unnecessary controversy) that it is not incumbent on claimants now to bring actions, or institute suits, or in any other manner to proceed against the debtor or his estate, for the recovery of the debts on which compensation is claimed, or any part of them, without prejudice to the question whether the claimant ought before to have so proceeded, or whether the loss complained of or any part of it has been occasioned by the manifest negligence or wilful omission of the claimants, within the intent and meaning of the proviso in the treaty of amity.” from which resolution Mr. FitzSimons and Mr. Sitgreaves dissented. No. 3.
On the part of the United States, it had been always contended that it was necessary for the claimant to prove that he had applied to the debtor for payment, and if denied, that he had prosecuted with due diligence his demand, in the ordinary course of justice without effect: and in cases where the debtor is now able to pay, not the whole debt, but only a part of it, that in the like manner the creditor should pursue legal means of recovering so much as he can from the debtor; the residue only being under any circumstances chargeable to the United States.
According to this resolution it is not necessary in any case whatever for the claimant now to institute a suit against the debtor, in order to satisfy those Commissioners as to the amount justly due; or as to the impracticability of obtaining payment in the ordinary course of justice. Consequently, if a creditor omitted to bring suit in a state where once he shall prove lawful impediments to have existed, altho for more than ten or twelve years they have been expressly repealed, he is not chargeable with negligence according to the opinion in Anderson’s case beforementioned; and according to the opinion in this resolution he is not bound now to sue, though possessed of evidence to support his demand, and the debtor possessed of estate adequate to the payment of it. Thus such a creditor will either remain unpaid altogether (a thing not intended by these Commissioners) or he must by means of their award obtain payment from the United States.
From the terms of the stipulation, the United States are responsible only for such losses and damages as in the ordinary course of judicial proceedings could not be compensated. This makes it indispensably necessary to ascertain whether the loss for which compensation is claimed of them was remediable in a Court of Justice or not. To ascertain this, the best evidence of which the thing is capable should be produced; and this best evidence is denied, in my humble opinion, to be an ineffectual suit in a Court of Justice against a debtor who was and yet is able to pay his debts. As to debtors solvent at the peace who became insolvent during the existance of lawful impediments, and are so yet, it is not so necessary that suits should be brought. These might be an exception from the general rule.
It is a fact worthy of notice, that many claims, almost all from Virginia, exhibit a class of “debts due from persons reputed to be more solvent and from whom a recover may probably be had, except interest during the war.” The Amount of such debts is considerable. The Claimants in this very case state such a class of debts. The intention there of this resolution as I understand it, is to make the United States pay this class of debts, assigning for a reason that the creditors, not being able to recover interest during the war, are not bound to sue the debtors for the principals but are entitled to full compensation for the whole demand, consisting of principal and interest, from the United States. On this head I pray leave to refer to an extract from the answer filed on the part of the United States in the case of Bowman, As precisely expressive of the ideas I have entertained. No. 4.
On the 17th of May 1799, in the claim of Ledderdale, the same three Commissioners resolved that a claimant was not bound to institute proceedings in Chancery to set aside the fraudulent conveyances made by his debtor on purpose to elude payment; such proceedings in “Chancery or otherwise, for the discovery and corrections of fraud, not being (as they say) in the ordinary courses of judicial proceedings for the recovery of debt, within the description and meaning of the Treaty of Amity.”—No. 5. This resolution preceded in order of time the one last mentioned. It is understood to mean, that a creditor was not bound at any time, by a suit in Chancery, when that was the only proper judicial remedy, to proceed against his debtors, or to proceed otherwise against him for the correction of fraud. Consequently, the United States are to be liable, under this construction of the Treaties, to pay all the debts due to British subjects, which debtors shall endeavour, by any Act of fraud, to protect themselves from paying; though such acts may be set aside, and their fraudulent intentions wholly avoided, by a Court of Chancery, or otherwise, that is to say even by the rules of the Common law. According to this Doctrine, the United States are held responsible not only for losses and damages arising from lawful impediments contravening the Treaty of Peace, as the stipulation expresses, but for losses and damages arising from the frauds of debtors. In Virginia, Maryland, and several other States, there are Courts of Chancery, also the Federal Courts have a Chancery jurisdiction; and the powers of a Court of Chancery are and have been in ordinary use in the United States.
Further, this resolution expresses an opinion, that though the Constitution of the United States in 1788 had established that all treaties made under the authority of the United States shall be supreme over the laws of every individual State, and the Supreme Court of the United States in February 1796, in the first case brought there submitting the question to their decision, determined that the State laws of Virginia concerning Treasury payments were no bar to the recovery of British Debts; yet this adjudication was not to be taken as evidence of what the law was in the American Courts when the treaty of Amity was concluded; but the decision, of an inferior Court against the Creditors in which he did not acquiesce, and which was pending in the Supreme Court at the date of the treaty of Amity, and afterwards totally reversed in the Supreme Court, merely on the ground that the treaty of peace had of itself repealed all laws contrary to it, especially when dictated by the Constitution the Supreme law, was to be taken as evidence that such state laws were in force and a bar to the recovery of such British Debts.
And on the 23d of May 1799, a similar resolution relative to the State of Maryland was passed in the case of Clark, which resembled the case of Lidderdale, with this additional circumstance, that an act of the Legislature of that State had been passed in 1787 declaring the treaty of Peace to be the Supreme law within that State. No. 6. The result of this opinion is, that although it is a well known fact that Creditors have prosecuted their suits with effect in Virginia, whether commenced before or since the treaty of Amity; the Treasury payments being finally adjudged no bar; yet the United States may be awarded to pay to the Creditors all the Debts which during the war had been paid into the State Treasuries; such Debts being deemed by the three Commissioners totally lost and irrecoverable in the American Courts of justice notwithstanding the judgment of the Supreme Court to the contrary in the case of Ware vs. Hylton, so often referred to in the proceedings, and the constant conformity of inferior Courts to that decision.
On the 6th of August in the year 1798 in the case of Dulany, a resolution was read and debated at the board, which the same three Commissioners contend was passed at a competent Board, because they assented to it. Mr. FitzSimons a Commissioner named on the part of the United States being corporeally present in the Room, although he had more than once expressed his determination never to make one of the Board when such a resolution should be passed, but had no objection to the further discussion of it, believing it impossible that an attempt would be made to pass it under such circumstances. This resolution asserts that payments in paper money during the war, accepted by creditors or their Agents, in discharge of debts contracted in the former American Colonies, who gave acquittances in full and delivered up to the debtors the evidences of the debts are set aside by the treaty of Peace, except as to the specie value of such paper money, and that the difference between the sterling value of the money in which the Debt was contracted and the Sterling value of the money in which it was paid to the Creditor or his authorized Agent, was a loss which under the treaty of Amity the United States should compensate. No. 7. On the part of the United States, the claim was opposed on the ground that the fourth article of the treaty of peace did not consider payments of any kind which had been accepted by the Creditors as lawful impediments, which it intended to annul or remove, and consequently the United States were not chargeable with a breach of that treaty, by suffering such payments to remain forever in full force; and that a loss arising from the payment of a debt due before the war to a British subject, by a Citizen, in depreciated currency, the lawful money of the State where the debt had been contracted and was payable, when a Colony, which payment the Creditor or his Agent accepted in full discharge of the Debt was not a loss to be compensated by the United States under the treaty of Amity. Such losses as are, wholly, or in part, from the acts of the Creditors, who were required by no law to collect their debts, or to employ Agents in the United States to collect their Debts, during the war, but who in so doing, did voluntarily, an act which might have been omitted; and if omitted, the debtors could not have been discharged. On this topic I will not enlarge, the arguments before the board being in your possession and in print.
On the 18th of December 1798, in the case of Cunningham & Company, the same three Commissioners expressed an opinion that no sufficient cause had been shewn, why, in awarding full and adequate compensation for such Debts as should be proven within the intent and meaning of the Treaties, full interest should not be awarded for the detention and delay of payment during the war, as well as in time of Peace; but on the contrary, it was just that such interest should be awarded, according to the nature and import, express or implied, of the several contracts on which the claim is founded. No. 8; from which resolution the two other Commissioners dissented, and on the 19th. of the same month entered their reasons of dissent on the minutes. No. 9.
Mr. FitzSimons, in a few words, assigns for the reasons of his dissent, that the Debts which were the subject of the resolution were payable in the then Colonies, now United States; and it being admitted by the Creditors, that for a considerable time there were no persons in the United States authorized to receive them, it appeared to him unreasonable that a debtor should be made subject to the payment of interest on a debt, while the absence of the Creditor rendered it impossible for him to discharge it and because immediately after the Peace, an abatement of interest during the war was generally allowed, on principles of equity, by the Creditors themselves, who made settlements to a great amount with that allowance; and judgments of courts, verdicts of Juries and awards of referees were at that time almost universally made, disallowing interest during the war, which [he] considered irresistable proof of the equity of the principle.
The dissent being entered, the board on the same day resolved that in deciding against an objection to the payment of interest during the war, maintained generally and without regard to the nature and import of the contracts express or implied, they do not preclude but necessarily [wave] all objections to the payment of interest which may arise out of the contract or other special circumstances of the case.
Under these proceedings of the Board on the question of war interest, it appears to have been ultimately left open to all objections arising out of the contracts or other special circumstances of the case. When therefore compensation was claimed for deductions of interests made by Jurists with or without the direction of the Court, in the ordinary course of Judicial proceedings, and independent of any Legislative Act, the Agents for the United States opposed the claim, upon the ground that the deductions of interest in such cases was not occasioned by lawful impediments contrary to the treaty of Peace, they having been made by a competent tribunal proceeding in a manner and in principles recognized when the debts were contracted, that judgments or decrees of competent Courts, on the real merits of the controversy, unconnected with the national character of the parties, and where no question concerning the operation of Legislative Acts had been involved, were not liable to the reexamination of the Board. This was the defence in Osborne’s case, in Pennsylvania, where the claim was for the interest on a specialty debt contracted in Pennsylvania, which the Jury, pursuing the direction of the Court had disallowed in their Verdict. It is well known that in Pennsylvania no Legislative Act ever was passed prohibiting the recovery of British Debts. The same objection to interest was implied in the answer of the United States relative to the claim of Bowman where the United States admitted they were responsible for the amount of the Judgment recovered against L. Williamson interest during the war having been deducted by the Jury in the Verdict on which that Judgment was founded.
But this objection to interest during the war, in cases so circumstanced, appears to have been considered by the same three Commissioners as insufficient, when on the 26th of June 1799 they resolved, that by the resolution of the 18th. of December last they had determined that interest, during the war, upon specialties, ought in all cases to be paid; and also resolved that Agents practising before them were bound to respect their resolutions, by refraining from all opposition on questions which were distinctly settled. A copy of the resolution and an extract from the answer in the case of Bowman, to which it refers, accompanies this letter No. 10.
The claim of Inglis presented a question whether an inhabitant of the State of New York, at the commencement of the late war, who was attainted as a person holding or claiming property within that State, by a Legislative Act, in 1779, for adhering to His Britannic Majesty, and whose debts were by that Act and on that account confiscated, was entitled to compensation for those debts from the United States, the debtors being yet solvent, and the Bonds which evidenced the debts being in possession of the claimant. On the 21st of May 1798 the Board determined that the claimant was a British Subject entitled to claim under the 6th Article of the treaty, and that the confiscation of his debts was no bar to the claim. On the 19th of February last, the Three Commissioners before mentioned, proposed to pass a resolution that the claimant was not bound to seek payment of those debts in a judicial course of proceeding against the individual debtors; which occasioned the American Commissioners, who held a different opinion, to withdraw from the Board. The principles and reasoning in each side are entered on the journal. They contain many pages and are printed in a pamphlet.
In the case of Andrew Allen on the 9th of July 1799, a resolution was proposed, with the concurrence of the same Three Commissioners, which asserts that (a natural born) British Subject who may have made his election in favor of the United States after the declaration of Independence, and so departed for a time from his native Allegiance and afterwards was attainted of treason by the Legislative Act of a State, and his debts confiscated for that crime, and who, having thereafter returned to the side of his Britannic Majesty, was actually on his side at the Peace, was a person within the fourth article of the treaty of peace, and thereby enabled to recover the debts which had been thus confiscated for what was so declared a crime, and that compensation ought to be made under the treaty of Amity for such confiscated debts. No. 11.
The claim for compensation in this case had been opposed on two grounds, one of which was, that the claimant had been a subject of the State of Pennsylvania after the declaration of independence, and having been attainted in the year 1778 by the Legislative act of an independent State, & his estates and debts forfeited for that crime, the treaty of Peace did not annul the forfeiture and restore to the claimant his forfeited debts.
In advocating the claim, the Agent for Andrew Allen advanced the extraordinary position, that the treaty of Peace was the only point of time that was to be considered the epoch of our independence. It was impossible for me to permit this position to pass uncontradicted, and being contradicted it was thought proper to refute it by the strongest arguments which occurred. The proposed resolution, however, is understood to convey an opinion denying the epoch of our independence to be earlier than the treaty of Peace. The American Commissioners deeming this Resolution as proposed, not only unwarranted by the stipulations in the treaties, but highly derogatory to the honor of the United States, thought it their duty not to allow the date of the independence of the United States to be made a Subject of controversy in the Board, and withdrew. They have signified to the three other Commissioners their intention to decline further attending in the Board and are preparing a letter to them explaining their reasons for so doing, a copy of which they will send to the Secretary of State to be transmitted for your information and consideration.
It is observable that the proposed resolution in Allen’s case contains citations of opinions judicially delivered by some of the Judges of the Supreme Court of the United, which are represented as corresponding with the opinion which is declared in that resolution tho’ it must be evident on the face of the resolution that the judicial opinions, as cited do not apply to the case of forfeiture and confiscation for crime, but to the case of confiscation of debts by right of war, as enemies property, and consequently are wholly irrelevant to the question in this case. I feel it my duty to say, that no exposition of the treaty of peace has ever been given, to my knowledge, by any of the eminent and learned Judges whose names are there mentioned, which corresponds with the opinions of the three Commissioners, as set forth in that paper.
The proceedings in Allen’s case have been printed in a pamphlet at the instance of his Agent, which, together with the pamphlet in Ingles’s case, I have the honor to transmit.
I might present to your view some other matters worthy of your notice, but my letter is already very long.
For the same reason I forbear to advert on the present occasion to certain rules of proceeding which have appeared to me very exceptionable, because illy calculated to promote those purposes of justice for which the tribunal was instituted.
The interpretation of the treaties asserted by these opinions, when considered separately and distinctly, produces the following effects.
1st. It exempts the claimant from proving the solvency of his debtors at the peace, and imposes on the United States the burden of proving their insolvency then.
2nd. It exempts the claimant from proving diligence on his part to recover the debt from his debtor.
3rd. It exempts him from proving his loss or damage, provided he proves the existence of legal impediments for a time ever so short from which the loss is inferred, as averred by the claimant, unless the contrary is shewn by the United States.
4th. It exempts the claimant from bringing suit now against his debtor for any debt which is the subject of compensation before the Board, though the debtor is solvent at this time, and there is no lawful impediment to recovery.
5th. It excuses the claimant for omitting altogether to bring suit, or even to make personal application for payment to the debtor, if he resided in a State where lawful impediments once existed, though long since repealed.
6th. It exempts the claimant from producing the best evidence to prove that the loss is not remediable in the ordinary course of justice which the nature of the case suggests and admits.
7th. It charges the United States with the payment of the whole principal and whole interest in those cases where there is no reasonable ground to expect a recovery of interest during the war, but a certainty of recovering the whole demand except interest during that period from the debtor.
8th. It exempts the claimant from the duty of setting aside the fraudulent acts of the debtors, and makes the United States responsible for the frauds of individuals.
9th. It renders the United States liable for all debts which during the war had been paid into the State Treasuries, though it has been judicially decided by the Supreme Court that such payments are no bar to the recovery of such debts; to which decision the inferior courts have constantly conformed.
10th. It charges the United States with the payment of the difference between the sterling value of the money in which the debt was contracted and the sterling value of the money in which it may have been paid to the Creditor.
11th. It charges the United States with abatement or deductions made in the ordinary course of justice by Juries and courts upon principles of equity applied to the circumstances of each case, where no consideration was made of the national character of the Claimant, and no question of lawful impediment was raised.
12th. It charges the United States with abatements of interest to which the parties from prudential considerations thought proper to consent in their private settlements.
13th. It charges the United States with the payment of debts confiscated for hostility, though the debtors are still solvent, and according to judicial decisions are bound to pay the same.
14th. It charges the United States with the payment of debts confiscated for the crime of high treason, in these cases where the creditors after having taken the American side of the war, deserted it, and returned to the side of His Britannic Majesty, and were found on that side at the Peace; and as a foundation for claims of this kind, the date of the Treaty of Peace has been taken as the Epoch of the independence of the United States.
It is impossible that such can be the true interpretation.
The effect of these various opinions is manifest, when combined they transform, by the process of interpretation, the stipulations which were made into stipulations which were not made; and while they operate a thorough change, the operation in every instance is to the extreme disadvantage of the United States.
Thus, Sir, with perfect candour, and with as much accuracy as in my power, I have endeavoured to lay before you the principal points upon which different opinions have been held at the Board, in the construction of those articles of the Treaties from which its powers are derived, and by which they are regulated and described.
Nations so just and reasonable as to make the stipulation in the sixth article of the treaty of Amity, it is hoped will find no difficulty in making another that shall explain it to their mutual satisfaction. With an earnest wish that such may be the result, I have the honor to submit the important subject to your consideration; and am, with perfect respect, sir, your most obedient humble servant