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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 reduce 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 :
$6 But the Board, on full argument, resolved « (Mr. Fitzsimons and Mr. Sitgreaves dissenting), “ That the war could not justify any such general s 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 notice. The debts were contracted when the creditors and debtors were subjects of the same King, and children of the same 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 einpire, 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."
“ 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 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, ihat 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.
“ 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 reco
very; consequently, the loss arising from his
not recovering, was, in the first instance, to be “ ascribed to the operation of the said lawful impediment;-so that it was not incumbent on the
to 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 prima facie evidence, already stated, by “ reasonable évidence to the contrary."
“ And to prevent misapprehension, they thought it expedient to express themselves on this occasion, as follows :" And although the Board are to be os determined by principles of sound reason and
justice, and not to be affected by suggestions of
hardship or difficulty, yet desirous as they are, " in this great national business, to discharge their " duty in a manner which may be as generally sa
tisfactory as the natural prejudices of parties in* terested will permit, they think it not improper, " in consideration of the earnest opposition which " was made in the Board to the above recited re*+ solution, in the case of Cunningham and Com
påny, on the ground that it never could have “ been intended, to impose so great a hardship on " the United States ; to suggest the reflection, “ that it cannot prove a task of greater difficulty
to the United States, with all the means of in" quiry and information which they possess, and “ under their responsibility of indemnifying against “ lawful impediments to the recovery of just debts; “ 'to satisfy this Board, on sufficient evidence of “ what must, in many instances, have been, and " still may be, matter of great notoriety, viz. that
at à certain period, a debtor was in such a situa“ tion, that, according to reasonable inference, he “ could not have raised money, or procured secu
rity, for the payment of a certain debt; although “ the full force of legal execution had been brought
against him; than it would be to a foreign cre“ ditor, perhaps the representative only of him " who made the contract, and totally unacquainted s6 with the former situation of the debtor, to bring
"evidence of the reverse the facts and circum. " stances necessary to establish the latter proposi
tion, being in their nature, at least as much af“ fected by the long lapse of time since the peace, " when every lawful impediment to the full reco
very of the debts in question, ought to have “ been removed, as those, by which the former
may be substantiated ; and such lapse of time so impairing the means of evidence, being the just
cause of complaint, not to the United States, “ but to creditors only, wherever the delay appears " to have arisen, from the operation of lawful im“ pediments to the full recovery of debts, fairly “ contracted before the peace, and protected
against such impediments by the fourth article 66 of the definitive treaty."
“ This resolution also, so explicit and so reasonable, so perfectly consonant to the principles of equity and to the practice of law, the American Commissioners eluded by their last shift, secession.
“ The next apology for secession, and the last that we shall mention at this time, discovers, perhaps, a more complete disregard of justice and decency than any of the former.
“ The claimant, Mr. Allen, was a Pennsylvanian. He left the territory of that state the moment independence was declared. The assembly passed an act of attainder against him, two years after he had taken shelter under the arms of his Sovereign, by which act all his real property was confiscated, and he was prevented from recovering certain bona fide debts, due to him before the war. If ever man had a just claim to any thing, this gentleman had to these debts; according to the treaties. The objection set up by the United States, was, that Mr. Allen, at the time the act was passed, was a citizen of Pennsylvania, though, as we observed before, the act was not passed till