Remarks on the validity of the Act of Congress passed March 3. 1821, entitled "An Act establishing the Salaries of the Commissioners and Agents appointed under the Treaty of Ghent," so far as it relates to the amount of Salary prescribed for the Commissioners.

The 8th Article of the Treaty of Ghent provides that the Commissioners shall be paid in such manner as shall be agreed between the two contracting parties, such agreement being to be settled at the time of the exchange of the ratification of the Treaty. By the terms contracting parties in this provision must have been intended those branches or Agents of the respective Governments that should be authorized to exchange the ratifications. That exchange, in pursuance of a stipulation in the treaty, took place at the City of Washington, and the Secretary of State, under the directions of the President, was the proper officer to make the exchange, and of course was the person authorized by the treaty to agree on the manner in which the Commissioners should be paid. It cannot be supposed to have been intended that this agreement, was to be made, on the part of the United States, by the treaty making power or by Congress. That the Commissioners were to be paid was a matter of course, as the ratification of the Treaty which authorized their employment, of itself, bound the respective Governments for their payment. The Agreement to be made was merely as to the manner of that payment, and was to be made not at the time of the ratification, but at the time of the exchange of the ratifications, and of course by the same authority by which the exchange itself should be made. 

The question then arises, did any such agreement take place? It appears that one was made by the Secretary of State, on the part of the United States, and Anthony St. John Baker Esquire, on the part of HIs Britannic Majesty, "to arrange the payment of the Commissions to be appointed in pursuance of the treaty on the same principles as were observed in carrying into execution the Treaty of 1794 between the same Powers, that is the expenses to be equally borne by the two Governments." Has this agreement any reference to the amount of compensation to be paid to the Commissioners? On this point, it is believed, there can be very little doubt. Did the Secretary of State mean to bind the United States to pay an equal proportion of the Salaries of the Commissioners, without any stipulation or understanding as to the amount, and so leave the British Government at liberty to pay either of the Commissioners without limitation at the joint expense of the United States? Such an idea cannot for a moment be entertained. But I contend that by the terms of the agreement the amount of compensation for the Commissioners is actually settled. They are to be paid on the same principles as under the Treaty of 1794, of course they are to receive the same amount as under that Treaty.

But, although this is the plain and obvious meaning of the agreement on the face of it, the case does not stand on this ground alone. It is officially stated by the Secretary of State that the President of the United States who acted as Secretary of State when the agreement was entered into declares "that his impression has constantly been, that the engagement signed at the exchange of the ratifications of the Treaty binding the parties to the payment of this Commissioners on the principles which had been pursued in the execution of the Treaty of 1794, involved the obligation that the amount of the compensation chargeable equally upon both parties, should also be equal to both Commissioners, and that should be the same as had been allowed to the Commissioners, for ascertaining the river St. Croix, under the Treaty of 1794 viz, $4444, a year to each Commissioner."

Under these circumstances the Commissioners were appointed, they accepted the trust and entered upon its duties. Their employment was created by the Treaty and from the moment they were appointed their situation became as permanent as the Treaty itself, until their services should be completed except in the case of death, sickness, resignation or necessary absence. So too with the compensation. The moment it was fixed in pursuance of the Treaty it became equally permanent with the Commissioners, subject to no alteration whatever without their consent. 

It is entirely a mistaken idea that the Commissioners are placed on the same footing with Officers in general. They are made the joint Officers of the two Governments; or rather they are constituted Arbitrations, and sworn to decide impartially between the parties. Although the treaty provided that each party should appoint one, yet when appointed they were the Commissioners of both Governments, and it became their duty as well by the nature of their employment, as by the oath prescribed for them, to guard wth equal care the rights of both parties. They entered upon their employment then under a special contract previously settled, that they should receive a stipulated salary, and it was not in the power of either, or even both of the parties, to make an alteration in that contract without their consent. 

In the case of the river St. Croix under the Treaty of 1794, the dispute was submitted to three Commissioners, two of whom were to be appointed in the same manner as is provided by the Treaty of Ghent, and the third to ^be^ agreed upon by those two. Now it cannot be contended that the third Commissioner in that case was any more an Officer of the one party than of the other, and yet the whole three when once appointed were placed on the same footing. If the United States had then fixed a different amount of compensation from what was allowed by the British Government who can say to what side the third Commissioner whould have belonged or, in other words, to which amount of compensation he would have been entitled? In two other cases under the Treaty of 1794 certain matters were submitted to five Commissioners, the fifth of whom were to be chosen in the same manner as the third in the first case; the same remarks, therefore are alike applicable to the several cases. 

Congress in May 1796, in making an appropriation for defraying the expenses of ^those commissioners added a proviso to the act limiting the amount of compensation to be allowed to^ the Commissioners out of the money appropriated. But as the amount allowed by the Act was the same that had been agreed upon by the executive and the British Government, no inference can be drawn from that case against the position I am contending for. Indeed it has rather a tendency to show that the agreement was considered binding and that the appropriation was made accordingly.

There was nothing in the proceedings under the Treaty of 1794 laid before Congress, at the time the Act now under consideration passed, from which it can be implied that it was then considered that the Commissioners appointed by the one party might be paid a different compensation from those appointed by the other party. It was necessary for a part of the Commissioners appointed by both parties to cross the Atlantic to perform their services, and it was proposed and agreed that those who were obliged to serve in a foreign County should resume to serve in a foreign Country should receive a higher Salary than the others who remained at home. But this operated equally on all the Commissioners without reference to the manner in which, or the parties by whom, they were appointed. This was all that Lord Grenville meant when he stated to Mr. Adams "that the clause of the Treaty did not necessarily imply that the payment of all the Commissioners should be the same," for it appears by the same document from which we learn this observation, that Lord Grenville did not consider the British Government authorized to fix on a separate compensation for the Commissioners appointed by that Government, but considered an agreement of the two Governments settling the salaries of the whole at the same amount for the same services as indispensible before he could state to the persons whom he wished to appoint what compensation they could receive. 

It may be further remarked that the executive Government, at different times, in laying before Congress a statement of the salaries of the different officers invariably  stated the compensation of the Commissioners under the Treaty of Ghent at $4444 per annum, and no question was ever raised until the passage of the Act in question. It will be perceived that this singular law applies to "each Commissioner now appointed or who may be appointed according to the provisions of the Treaty of Ghent." I would ask then on what principle is it to operate on me and not on Colo: Barclay? If it cannot reach him it cannot reach me: I am by the Treaty, as a Commissioner, as independent of the authority of Congress as he is: and the Treaty once ratified, and the agreement relative to the compensation settled according to the mode prescribed therein, it is not in the power of one, or even both the parties, to degrade me, and lease my Colleague clothed with all the dignity & emoluments conferred by those acts. But it appears by the letter from the British Secretary for foreign Affairs to Mr. Rush, dated the 13th of June 1821, that the British Government also understood that the salaries of the Commissioners and the manner of their payment was settled by an agreement in pursuance of the Treaty, made on the exchange of the ratifications, though it expresses a willingness to rescind that agreement. 

The case then is simply this. The Treaty says the Commissioners shall be paid in such manner as shall be agreed between the two contracting parties, such agreement being to be settled between the two contracting parties at the time of the exchange of the ratifications and agreement was made by which all the parties understood that the Commissioners were to receive at the joint expense of the two Governments, the sum of $4444 a year. From that moment it stood the same as if the Treaty itself had named the sum and nothing short of a legal abrogation of the Treaty in that respect could alter it. 

The remarks of the British Secretary that the agreement appears never to have been acted upon in regard to the Commissioners Salaries, each of the Commissioners having in part from the first been paid by his own government, can have no weight. There being but two Commissioners, and they being to receive the same amount at the joint expense of the two Governments, each would naturally draw his funds from the Government which had appointed him, and the thing would of course be equal without any accounts to be settled in relation to it. If either of the Governments should choose to pay one of the Commissioners a greater Salary than the sum agreed upon it would of course be at the separate expense of that Government. But it would not follow from this, that either of the Commissioners might be compelled to take up with a less sum than that stipulated in the Treaty viz, the sum agreed upon on the exchange of the ratifications.