made, was to pay the amount thereof, to make the satisfaction; and this was demanded not only by justice and equity, but by the faith of treaties. It surely cannot be pretended that in considering whether a decision was "just and equitable" the Secretary of the Treasury should have no reference to the treaty. The language used is "just and equitable within the provisions of the treaty," and not "just and equitable and within the provisions of the treaty. If no reference was to be had to the treaty, then it would have been the duty of the Secretary of the Treasury to consider whether, though the losses occasioned by the troops of the United States were, in fact, injuries, there were, nevertheless, not circumstances connected with our relations with Spain which rendered it unjust and inequitable that satisfaction should be made. But his powers indubitably did not extend that far. It was not meant that he should go behind the treaty. But if this be true-and that it is there can be no question-then the words "just and equitable" are not to be understood in their largest sense. The only question then is, what restriction is required? They are clearly to be limited by the treaty. If this be so, the conclusion at which I have arrived seems to me to be inevitable.

Taking my construction to be correct, we have no difficulty in understanding the remaining provisions of the second section of the act of 1823 "shall pay the amount thereof to the person or persons in whose favor the same is adjudged." The amount of what? Plainly, of the decision, which the Secretary of the Treasury had become satisfied was just and equitable, within the provisions of the treaty. This was precisely the provision which good faith required. If the injury was established by a judicial decision rendered by a competent tribunal, then the satisfaction was due, and the precise satisfaction. which had been adjudged. The Secretary of the Treasury ought, therefore, to have been, and to my mind it is plain that he was, required in every such case to pay the amount of the decision. If there were no such decision, then there was nothing due, and by implication the act directs that in such a case nothing shall be paid. The whole of the decision was due or none, and the whole or none was just and equitable within the provisions of the treaty. The word "same" in that part of the section, which reads "on being satisfied that the same is just and equitable," refers to the decision of the judge, and the subsequent words "the amount thereof" also refer to the decision of the judge. It necessarily follows, that the words "same is adjudged" refer to the amount of the decision; so that this part of the section written in full would read: "on being satisfied that the decision of the judge is just and equitable, within the provisions of the said treaty, shall pay the amount of the decision of the judge to the person or persons in whose favor the amount of the decision of the judge is adjudged.' It cannot, I am sure, be denied that such is the correct grammatical construction of this part of the second section. I admit that a departure from the grammatical sense of words may be allowed, but I venture the assertion that a case cannot be found where it has been sanctioned to defeat the object of the act. Where the grammatical sense of words is consistent with the motive which led to the passage of the act, and necessary to give effect to the object comtemplated by

it, the grammatical sense is surely not to be departed from, but to be adopted as giving the true meaning of the statute. Such is alike the dictate of reason, and the well established rule of law.-(Dwarris on Statutes, 587.)

If, then, the grammatical construction of that part of the second section, to which I have just referred, be its proper construction, the words "just and equitable" in their larger sense are wholly irreconcilable with it. To give those words such larger sense, it is necessary either to make the words "the amount thereof" refer to the decision of the Secretary of the Treasury, or to strike out the word "the" and read as follows; "such amount thereof as he may deem just and equitable." According to the first view, this part of the second section written in full would read: "shall pay the amount of the decision of the Secretary of the Treasury to the person or persons in whose favor the amount of the decision of the Secretary of the Treasury is adjudged." According to the second view it would read: "shall pay so much of the decision of the judge as the Secretary of the Treasury may deem equitable and just, to the person or persons in whose favor so much of the decision of the judge as the Secretary of the Treasury may deem equitable and just is adjudged." Written as far as practicable with the relatives, according to the first view, it would read as follows: "shall pay the amount of the decision of the Secretary of the Treasury to the person or persons in whose favor such amount is adjudged." And written as far as practicable, with the relatives according to the second view, it would read as follows: "shall pay so much of the decision of the judge as the Secretary of the Treasury may deem just and equitable, to the person or persons in whose favor the same is adjudged by the Secretary of the Treasury.” It is indisputable that the words "just and equitable" cannot be so interpreted as to give the Secretary of the Treasury a revisory power over the decisions of the judges, without taking such liberties with the subsequent part of the second section of the statute. Can this be justified by any principle of law or reason, when its necessary effect is to defeat the expressed object of the statute, and to impute bad faith to Congress? A case which will justify such a liberty for such a purpose, I venture most respectfully to affirm, cannot be found in the annals of jurisprudence. The great principles of justice, as well as the established rules of construction, and the decided cases, the rather dictate that the words "just and equitable" should be received according to a more restricted meaning.

The construction which I have given to the second section of the act of 1823 seems to me, therefore, to be the only construction of which the language there used is fairly and justly susceptible. It is, too, the only construction consistent with the treaty, and consistent with the first section of the act. Under it, and it alone, can the treaty, and the act of 1823 passed to carry the treaty into effect, be made a symmetrical and harmonious whole.

The construction which makes the judges mere commissioners, and gives the Secretary of the Treasury a revisory, appellate power over their decisions, renders the act, which was designed to carry the treaty into effect, ineffectual for that purpose. In doing this it departs from

the usual meaning of the words used, by declaring that in saying that judges shall decide, it meant that commissioners shall award; and that in saying that the claims should be received and adjudged agreeably to the provisions of the treaty, it meant a wholly different thing, to wit: the action of the commissioners, whose award, instead of establishing the injuries as the treaty requires, should only have the effect of a master's report in chancery, and be revised by the Secretary of the Treasury, who is not a judicial officer. It, moreover, gives to the words "just and equitable," which are always words of a relative meaning, to be received in a larger or more restricted sense, according to the connexion in which they stand, the most latitudinous construction, the effect of which is, to make it necessary to reject the natural and grammatical sense of the subsequent part of the second section, by making the words "amount thereof" refer to the action of the Secretary of the Treasury. And all this is done in utter disregard of the reason which alone determined the will of the legislature in the enactment of the statute, and in entire obliviousness of the avowed object for which it was passed. I, with humble deference, submit that this interpretation is a clear and palpable violation of the established rules of construction, and of the plain meaning of language.

It will be observed that I have thus far made no reference to the case of the United States vs. Ferreira, 13 How. R., 43. To the actual decision in that case, I yield implicit submission. I regard it as a part of the law of the land, and if it should ever come in question before me, I should feel that my conscience was bound by it. I yield to no man in profound respect for the opinions of the Supreme Court of the United States in all cases coming within the limits of their jurisdiction. But the reasoning of the court in making the decision in the case of the United States vs. Ferreira, though entitled to high, very high, respect, is not necessarily a part of the law of the land. The decision is authoritative; the reasoning of the court merely persuasive. The one, as a precedent, and to the same extent as other precedents, must be obeyed; the other respected only. The one may be a principle, and as such to be taken as established and unquestionable; the other is mere argument, and to govern only when it convinces. In the case of Richardson vs. Mellish, 2 Bing. R., 229, Best, C. J., said: "There are expressions used by the Chief Justice. in that case which seem to bear on the present; but the expressions of every judge must be taken with reference to the case on which he decides, otherwise the law will get into extreme confusion. That is what we are to look at in all cases. The manner in which he is arguing it is not the thing; it is the principle he is deciding" And Marshall, C. J., in Cohen vs. Virginia, said: "It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connexion with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illus

trate it are considered in their relation to the case decided, but their possible bearing in all other cases is seldom completely investigated." What, then, was decided in the case of the United States vs. Ferreira? Merely that the Supreme Court had no jurisdiction in that case. This was the principle decided, and the only principle which could have been decided, because no other was involved in the case. The decision may be, and I doubt not is, altogether sound and correct, and still the reasoning of the court unsatisfactory. There may be, and my own conviction is that there are, other grounds, wholly unquestionable, on which the decision might have been placed. It is clear to my mind that, whether the judges of Florida, under the acts of 1823 and 1834, acted as commissioners or as judges; whether their functions were judicial or those of commissioners merely, still the decision of the Supreme Court must have been precisely what it was. Even if the decision of the Florida judge had been regarded by the Supreme Court as technically a judgment, it certainly was not one of those cases to which the appellate power of that court has been extended by Congress; and there can be no doubt that the whole appellate power of that court exists only in those cases in which it is affirmatively given.-(Wiscart vs. Dauchy, 3 Dallas' R., 32; Clark vs. Bazadone, 1 Cr. R., 212; the United States vs. More, 3 Cr. R., 159; Durousseau vs. the United States, 6 Cr. R., 307.)

I am not at liberty, then, in the discharge of my duty in this case, to be governed by the reasoning of the Supreme Court in the case of the United States vs. Ferreira, unless I am convinced by it. Notwithstanding the high source from which it comes, entitling it to the gravest and most careful consideration, still it would not be an honest and faithful discharge of my duty to do more than respectfully to weigh it, and give it that influence to which it is intrinsically, independently of its origin, entitled. It is not authority, which I must obey; it is merely the argument of a great man and of an enlightened court, upon which I am bound to bestow my best reflections and most careful deliberation. This I have done, and I trust that I may be pardoned for the presumption in saying that it has not convinced me. To be governed by it in this case would leave my conscience unsatisfied, and I can safely recognize no other monitor.

I do not propose to enter into a critical examination of the reasoning of the Supreme Court. That court itself, I know, would concede that, if Congress by the act of 1828, intended to impose a judicial duty upon the judges of the superior courts of Florida, it had full power to do so, and that such a duty was imposed, if the words of the act sufficienty express that intention. For the reasons which I have already assigned, my opinion is that such was the intention and effect of the act.

I may, however, be allowed most respectfully to suggest, that if, under the acts of 1823 and 1834, there was to be no suit, no parties in the legal acceptance of the term were to be made, no process to issue, and no one was authorized to appear on behalf of the United States, or to summon witnesses in the case, it was because Congress did not, in its wisdom, deem it necessary or expedient to make a different provision. And if the proceeding was altogether ex parte, and all that

the judge was required to do was to receive the claim when the party presented it, and to adjust it upon such evidence as he might have before him, or be able himself to obtain; and if both the decision and the evidence were to be reported to the Secretary of the Treasury, and not filed in the court in which the judge presided, or recorded there, it was because Congress, in the exercise of the power "to regulate" the proceedings of the tribunal, saw fit so to provide. But the conclusion which has been deduced from these premises, that "it is too evident for argument on the subject that such a tribunal is not a judicial one, and that the act of Congress did not intend to make it one," I most deferentially submit, is a non sequitur. I do not understand the Supreme Court as affirming that a provision for any one or more of these purposes is essential to the constitution of a judicial tribunal. But if it was not, then the argument loses all its force. It seems to me that if Congress saw fit to waive, on the part of the United States, all advantage to be derived from this source, it had the power to do so. And it will be observed that it was as necessary to the protection of the real interests of the United States and of all concerned, before the judges as commissioners, as before them in their judicial capacity.

I beg leave also, with deference, to suggest, that possibly it may have been the intention of Congress that the statutes, to which I have referred, and the act of March 3, A. D. 1822, entitled "An act for the establishment of a territorial government in Florida," ( 3 Stat. at L., p. 654,) should be so construed as to allow the two persons learned in the law, appointed under the latter act, "to act as attorneys for the United States as well as for the Territory to appear in behalf of the United States in every case presented to the judges under either the act of 1823 or the act of 1834. It may, too, be the proper construction of the acts of 1823 and 1834 that, by implication, they conferred upon the judges the power to establish all needful rules and regulations, not inconsistent with those statutes, in regard to the mode of presenting and conducting cases under them. It seems to have been the practice to present claims under those acts by petition, and that practice is recognized by the very act, under which the case of United States vs. Ferreira was instituted, as a method of proceeding already known and established. It uses the language "that the petition for the allowance of such claim," and "that said parties shall, respectively, allege in such petition."―(9 Stat. at L., p. 788.)

The Supreme Court assign no reason for their opinion that the treaty did not require a judicial proceeding. My reasons for the contrary opinion have already been given. What was said by the Supreme Court on this point, I may be allowed, with the most perfect respect, to say, was a mere dictum.

It is no small relief to me in being constrained, by a solemn conviction of duty, to differ from the reasoning of the Supreme Court, to find that on one occasion, at least, that court, with the magnanimity for which it is distinguished, overruled its own solemn decision in reference to another part of the treaty of 1819. I refer to the case of United States vs. Perchman, 7 Peters' R., 81, overruling Foster vs. Neilson, 2 Peters' R., 253, both of which have already been noticed. Would the decision of the Supreme Court, in the case of The United States vs.