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by an Agent, on the part of the United States, acting under the instructions of the Attorney-General. So that, the Commissioners were regarded (and they ought to have regarded themselves) as sworn judges, or arbitrators, perfectly independent of the parties, and perfectly unconcerned as to the consequences of the decisions. That this was the dignified light in which the majority of the Board viewed their official characters appears from the following extract, which also proves, that the Ameri can Commissiorers, notwithstanding their oath (see sixth article of the treaty above quoted) were content to be looked upon as the mere advocates of their government.

"The American Commissioners having, in conference, continued their support of the position, which, in the case of Inglis, they had distinctly and formally declared, that, when they could not in any other way prevent a decision, by the majority against what they (the American Commissioners) conceived to be just rights and interests of the United States, they were entitled, and even bound in duty, to secede, or withdraw from the Board for that purpose; the three other members, who held a very different opinion, thought they could not place their view of the subject in a clearer light, than that which was presented by the following resolution :

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Resolved, That it is expedient to declare, that "the Commissioners appointed by His Britannic "Majesty are equally charged with the rights of "the United States under the treaty of amity, "as with those of Great Britain, or of British sub"jects, claiming before this Board; and that the "Commi sioners appointed by the United States, " are in like manner equally charged with the

rights of Great Britain, and of British subjects ** so clamming, as with those of the United States: -that

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"that there is no distinction whatever of cha"racter or duty aniong the members of the Board; " but that each of the five members thereof is "an arbitrator upon oath, to proceed diligently and "decide all questions, whether of interpretations " or of fact, with perfect impartiality; and with" out 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."

"This declaration was proposed by three members of the Board, and so recorded; but Mr. Fitzsimons and Mr. Sitgreaves, thinking it their duty to prevent it from being passed by a vote, again secéded, or withdrew." P. 24.

"We now proceed to the pretended grounds of secession. The first subterfuge of the American Commissioners was intended to procure delay; delay almost everlasting. The majority of the Board were of opinion, that certain leading claims should be first determined on. The number of claims was very great; of course, if the principles had been discussed anew, in the investigation of every elaim, the discussion would hare occupied the space of many years; perhaps fifty, at least. The majority, therefore, insisted upon hearing certain claims, which seemed to comprise all the principles of any importance, and upon making the decision upon each point a precedent in the subsequent discussions. This was strenuously resisted by the American Commissioners, to whose government delay was certain gain, and formed one of their excuses for seceding.

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Next, the American Commissioners would agree to no resolution in which interest during the should be allowed; alleging (just as the fraudulent debtors themselves had done) that the creditors ought to receive no interest during that

War

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time, because it was Great Britain's making war on their country, which induced them to withhold the timely payments of their debts. So that, if a portion of any nation choose to rebel against their Sovereign, that Sovereign, in attempting to re: duce them to obedience, commits an offence, which is to authorize them to retaliate by withholding the debts due to his faithful subjects! On this head, the majority of the Board thus expressed themselves:

"But the Board, on full argument, resolved " (Mr. Fitzsimons and Mr. Sitgreaves dissenting), "That the war could not justify any such general " rule of deduction; and that interest ought to " be awarded, according to the nature and import,

express or implied, of the several contracts." And to prevent mistakes they afterwards resolved, "That in deciding against an objection to the pay" ment of interest during the war, maintained ge" nerally, and without regard to the nature and " import of the contract, express or implied, they " did not preclude, but necessarily saved all objec"tions to the payment of interest, which may " arise out of the contract, or other special cir"cumstances of the case."

"Mr. M'Donald, in support of the correctness of his opinion, makes the following quotation from a decision of Judge Paterson, one of the present Judges of America:

Judge PATERSON.-I feel no hesitation in declaring, that it has always appeared to me to be incompatible with the principles of justice and policy, that contracts entered into by individuals of different nations should be violated by their respective governments in consequence of national quarrels and hostilities. National quarrels should not affect private bargains. The confidence both of an individual and national nature on which the

contracts were founded, ought to be preserved inviolate. Is not this the language of honesty and honour? Does not the sentiment correspond with the sentiments of justice and the dictates of the moral sense? In short, is it not the result of right reason and natural equity? The relation which the parties stood in to each other, at the time of contracting these debts, ought not to pass without no tice. The debts were contracted when the creditors' and debtors were subjects of the same King, and children of the saine family. They were made under the sanction of laws common to, and binding on, both. A revolutionary war could not, like other wars, be foreseen or calculated upon :-The thing was improbable :-No one, at the time the debts were contracted, had any idea of a severance or dismemberment of the empire, by which, persons who had been united under one system of civil polity should be torn asunder, and become enemies, for a time, and perhaps aliens for ever. Contracts entered into in such a state of things ought to be sacredly regarded.-Inviolability seems to be attached to them."-" The construction of a treaty made in favour of such creditors, and for the restoration and enforcement of pre-existing contracts ought to be liberal and benign :-For these reasons this clause in the treaty deserves the utmost latitude of exposition.

"The five thousand pounds paid with interest, at this day, is not, in fact, or law, more than the five thousand pounds, paid without interest, at the day it becomes due."

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Notwithstanding this, which, in any other case, the American Commissioners would have regarded as the highest possible authority, those gentlemen refused to give their sanction to the resolution of the majority, which they made another ground for withdrawing from the Board.

"It

"It will be perceived, that the sixth article of the treaty provides, that the United States shall make compensation for such losses only as have been occasioned by lawful impediments, and not such as may have arisen merely from the insolvency of debtors, or the wilful negligence of creditors. This, in the nature of an exception (as it is called in the treaty), threw, of course, the onus probandi on the United States. The claimant, having produced evidence of his debt, and also of the existence of the legal impediment to the recovery of it, left to the United States to prove, if they could, the insolvency of his debtor, or the wilful negligence of himself. This, the claimant thought, was dividing the proof fairly and naturally between the plaintiff and the defendant. He never could conceive, that he would be called on to prove a negative; to prove, that his creditor was not, twenty years ago, insolvent, would have been attended with great difficulty; but to prove that bimself had not been negligent was next to impossible. Thus, it appears, thought also the majority of the Board.

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The Board, finding that the proceedings in the case would thus be suspended, on the question of onus probandi, which they had before settled by the resolution of the 6th of August, 1798, in the case of William Cunningham and Company, referred to that resolution, and resolved (Mr. Fitzsimons and Mr. Sitgreaves dissenting), That whatever in law, " or the settled course of judicial

practice, prevented the claimant from proceeding " for the recovery of his debt, was to be deemed " a lawful impediment which prevented such recovery; consequently, the loss arising from his not recovering, was, in the first instance, to be "ascribed to the operation of the said lawful im"pediment;-so that it was not incumbent on the

"claimant