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N°. I.

MR. PINKNEY'S OPINIONS DELIVERED AT THE BOARD OF COMMISSIONERS, ACTING UNDER THE 7TH ARTICLE OF THE TREATY OF 1794, BETWEEN THE

UNITED STATES AND GREAT BRITΑΙΝ.

THE BETSEY,
FURLONG, Master.

DR. NICHOLL.-" The board having maturely considered the Memorial and Exhibits, together with the letter of Mr. Gosling, and it being proposed and agreed that the board should now come to a decision on the following question : 'Whether on behalf of the claimant, a case has been made out which comes within the provisions of the treaty?" Dr. Nicholl stated as his opinion, that the sentence of condemnation having been affirmed in this case, upon an appeal to the supreme tribunal, credit is to be given to it, inasmuch as, according to the general law of nations, it is presumed that justice has been administered in matters of prize by the supreme tribunal of the capturing state.

"That the treaty has not altered this general rule of the law of nations, having engaged to afford relief only in cases (either existing at the time of signing or arising before the ratifications) in which, from circumstances belonging to them, adequate compensation could not then be obtained in the ordinary course of justice, or in other words, (but no words can be more explicit and clear than those of the treaty itself) cases to which circumstances belonged that rendered the powers of the Supreme Court of this country, acting according to its ordinary rules, incompetent to afford complete compensation.

"That the appeal was heard after the signing of the treaty, and the claimant has not satisfactorily shown any circumstances, belonging to his case, on account of which adequate compensation could not have been obtained in the ordinary course of judicial proceedings; or on account of which the supreme tribunal could not fully consider, and justly decide upon the whole merits of the case.

" Dr. Nicholl therefore thought that the claim ought to be dis(Signed) JOHN NICHOLL.

missed.

January 30th, 1797.

"Enlarged opinion by

Dr. NICHOLL. "Several members of the board have recorded their opinions, not only on the preliminary question which arose in this case, as to the construction of the treaty, but also on the merits of the claimant's demand of compensation. They have not only recorded the general grounds of their opinions, but have discussed at length several of the topics that were either contained in the printed cases and other proceedings, or mentioned at the board in the course of the inquiry.-Lest from this latter circumstance it should be inferred that those topics formed the principal grounds of my decision, I feel myself called upon to state in writing the reasons of my ultimate opinion on the merits of the case.

"At the same time, I take the opportunity of declaring that it is not my present intention again to resort to this measure, not thinking that the duty I have undertaken calls for it.

"Upon the construction of the treaty as to the extent of the powers given to the commissioners, it might be questioned how far the decision of the board was binding on the high contracting parties. The decision might be revised, and the reasons of each member might be required to appear. I therefore record mine. But upon the merits of the claims and the amount of compensation, the treaty has expressly declared the decision of the majority of the board to be final and conclusive.

"It would be extremely inconvenient, if not altogether incompatible with my professional engagements, to state my opinion in writing on the merits of each case.

"It is probable that those who shall chance to read the reasons which may be hereafter recorded in other cases by members of the board, and who shall find certain positions very ably controverted in those reasons, may infer that a difference of opinion in other members was wholly or principally founded on those positions, notwithstanding in truth they might not materially, or even in any degree, weigh in their final judgment. I must submit in future cases to be exposed to such erroneous inferences.

"In what I am about to state, it is not my intention to combat any of the positions laid down in the opinions in writing delivered in by other members, however decided my dissent may be from several of them: much less shall I examine any loose observations in the printed cases or proceedings, or which may have dropped at the board in the course of an unreserved discussion of the merits of the claim. I shall content myself with stating briefly what was my own final impression of the case, leaving undisturbed those reasons which have governed other gentlemen in their decision.

"It appears unnecessary again to state minutely the circumstances of the case. They will be found in the proceedings, and in the opinions of other members.

"The first and principal consideration is in respect to the compensation claimed on behalf of George Patterson, the proproprietor of the vessel, and of a moiety of the cargo.

"George Patterson was a citizen of America. He went on board the Betsey to the French Island of Guadaloupe several months after the existence of open war between Great Britain and France, disposed of her cargo there, dispatched the vessel to America with the (present) return cargo, and with instructions to bring back another cargo to Guadaloupe.

"George Patterson remained behind at Guadaloupe, and was resident there at the time of the capture in question.

" All persons who are within the enemy's territory, are, primâ facie, to be considered as enemies, and are liable to hostility.

"But a person within the enemy's territory is excepted from hostility, if it can be shown that he was a neutral, and was there for an occasional purpose, and not engaged in any transactions connected with the operations of war. A neutral must cautious

ly abstain from interposing in the war to prove this, no authority is necessary to be referred to. He is not at liberty to do all acts with the same unguarded freedom as in time of peace. If a neutral has rights, he has also duties.

"George Patterson's right to compensation depends then, in my opinion, on his having shown that notwithstanding he was at Guadaloupe at the time of the capture of his vessel and property, still he was there acting in a manner perfectly consistent with the strict duty of a neutral. The burthen of proof lies upon him-primâ facie he was an enemy: he must exculpate himself.

" He carried to Guadaloupe a cargo of provisions. This was not illegal. His cargo, though brought there for sale, was forcibly purchased from him by the governing powers of the Island; a circumstance from which he would naturally infer, that provisions were at that time necessary to the military operations of the Island.

"It was a matter of public notoriety that a British armament of considerable force was at that time acting in the West-Indies for the conquest of the French Islands.

"Martinique, a neighbouring Island, was at that time invaded. "The attack of Guadaloupe was at that time expected. "George Patterson, though his outward cargo was disposed of, and a return cargo of great value purchased, thought proper to separate himself from his vessel, to dispatch her to America, and voluntarily to remain at this critical period at Guadaloupe-liable to be called upon to do military duty, and to act in common with the other inhabitants in defence of the Island.

"He did not remain there to withdraw his property, or from apprehension of danger to it; for he sent to America for another cargo; another cargo of provisions, which, from what he had already experienced, he must well know were highly necessary to the defence of the place. His instructions were that the vessel should return with these provisions with all possible speed. Whether all this was done with the intention of aiding and adhering to the enemy, and of interposing in the war, or merely for mercantile profit, is not material to be proved. A neutral who supplies the enemy with contraband, probably, has profit only in

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