Ferreira, have been what it is, if the Spanish part of the treaty had been brought to their view, and the translations which have been furnished me by the counsel on both sides in this case been submitted. to them?

The act of 1834 is an act in pari materia with the act of 1823, and so manifestly declaratory of the latter that it requires but little comment. I have already remarked upon its general features. It will be observed, that, under the act of 1823, the judges were required to adjudge claims under the treaty, and that, under the act of 1834, the judge of the superior court at St. Augustine was authorized to adjudge claims for losses in 1812 and 1813. The act of 1823, therefore, defines the losses in 1812 and 1813 to be injuries under the treaty. This was done by way of explaining the intention of the act of 1823, and of the treaty, in order that future mistakes on that point might be avoided. The treaty did not provide for the satisfaction of losses, but for the satisfaction of injuries. Losses might have been occasioned by the operations of the troops of the United States, and yet not be injuries; for if they could be justified by the law of nations, they were then damna absque injuria. The act of 1834 relieves the claims for losses in 1812 and 1813 from all difficulty on this point, and in effect declares them to be injuries, in the sense of the treaty.

If my construction of the act of 1823 be correct, it is plain that the decisions of the judges, referred to in the first section of the act of 1834, were judgments in the technical sense of that term. What, then, was meant by the direction that the Secretary of the Treasury should pay the amount of those judgments in all cases where the decision should be deemed by him to be just? Just with reference to what? There can be no doubt that the term is here used in precisely the same sense in which it was used in the act of 1823, and means just within the provisions of the treaty. If the decision was rendered by the proper tribunal, and in a proper case, then it was just in the sense of the treaty, and of the act of 1834. It would have been most unjust for Congress to provide in good faith for the establishment of those claims by judicial decisions, and then, in the next breath, wholly to deprive the decisions, thus establishing the claims, of the character and effect of judgments. Such legislation would have been a breach of the treaty. It would have been, in effect, to keep the word of promise to the ear, and break it to the hope. It might have been a literal compliance with the treaty, but it clearly would have been a substantial violation of it.

I have already shown that the act of 1834 makes no provision for the payment of the judgments authorized by its second section, and that they could only be paid under the act of 1823. The present case arose under the second section of the act of 1834. My remarks upon the act of 1823 are therefore applicable to this section.

But the term "awarded" is used in the act of 1834, and the decision of the judge is, in both provisoes of the first section of that act, called an "award;" and hence it is inferred that the judges were only commissioners. I respectfully suggest, that the effect of such a construction is to lay too minute a stress on the strict and precise signification of words. The strict and precise signification of words may

be upheld to effectuate the intention of the act, but not to defeat it. We must look to the effect and substance of the matter, and not to every nicety of form or circumstance. It is not, in general, a true line of construction to decide according to the strict letter of the act; but the courts will rather consider what is its fair meaning, and will expound it differently from the letter, in order to preserve the intent. Qui hæret in litera, hæret in cortice.-(1 Co. Litt., Thomas's ed., 15; Per Lord Kenyon, C. J., 7 T. R., 196; Fowler vs. Padget, Id., 509; 11 Rep., 73; Vincent vs. Slaymaker, 12 East. R., 372; 3 Rep., 27.) But the second section of the act of 1834 used the word "adjudge," and this case comes under that section. Judges "adjudge," and commissioners "award." The letter of the law, therefore, is in favor of my construction. It is, too, not an uncommon expression to speak of "awarding a judgment," of the "award of a judgment," and of a "judgment awarded."

If, under a treaty existing antecedently to the treaty of 1819, the injuries occasioned by the troops of the United States to Spanish subjects had been established by judicial decisions, and afterwards by the 9th article of the treaty of 1819, the United States had stipulated to pay the amount of the decisions to the persons in whose favor they were adjudged, and then an act of Congress had been passed to carry the 9th article into effect, in the very words of the second section of the act of 1823, with the exception that the words "shall decide" were substituted by the words "have decided," could there be any doubt as to the meaning then to be given to the words "just and equitable?" If the more enlarged intrepretation, which would give to the Secretary of the Treasury the power to revise the decisions, should be put upon those words, then it would be so manifest that the act would be a gross and palpable and inexcusable violation of the treaty, that it would be impossible to believe that Congress could have intended to use them in that sense, whilst they were at the same time, eodem flatu, professing to carry the ninth article of the treaty into effect. In the cases of Talbot vs. Seaman, 1 Cr. R., 43, and Murray vs. Schooner Charming Betsy, 2 Cr. R., 118, the Supreme Court lay it down as a rule, that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. This rule commends itself both by its wisdom and its justice, and it applies much more emphatically to a treaty than to the general principles of the law of nations, for he who violates his treaties, violates at the same time the law of nations."-(Vattel, B. II, ch. 15, §221.) But how much is its force strengthened, when we come to apply it to a statute passed expressly to carry a treaty into effect! Under its influence, in the case supposed, it would not be regarded as a forced construction, to say that the words "just and equitable" should be construed "justly and equitably;" for surely it is no more difficult to convert "just and equitable" into "justly and equitably;" than it is to convert "quantity" into "value," and "value" into "price." Such changes, we have seen, may be made whenever they are necessary to effectuate the intention of the statute.-(Dwarris on Stat., 557; 9 How. R., 619.) Nor would it be considered, in the case supposed, impossible to conceive that Congress might have used the words "just and equita

ble" merely to indicate to the Secretary of the Treasury that, in considering whether a decision was within the provisions of the treaty, he should not be guided by narrow and strictly technical rules, but by the broader principles of justice and equity, so as to carry out the treaty in good faith, and in a liberal and enlarged spirit. Such a construction would satisfy the words of the statute, preserve the public faith, and carry the treaty into effect. Even the construction which I have put upon the words "just and equitable," as they stand in the act of 1823, would be regarded as, at least, possible, and if possible, under the rule of the Supreme Court, would be adopted; for an act of Congress ought never to be construed to violate a treaty if any other possible construction remains.

But how does the case supposed differ from the case actually before us? I have already shown, that as soon as the injury was judicially established, the ninth article of the treaty became in effect a stipulation to pay the amount of the judgment, and substantially the same it would have been if the injuries had already been established at the time of making the treaty, and the stipulation had been direct to pay that amount. A promise to pay such a sum as A shall name, becomes a promise to pay the sum named by A as soon as it is named by him. A promise to abide by an award, becomes in effect a promise to pay the amount awarded as soon as the award is made. And so a stipulation in a treaty to make satisfaction for injuries which shall be judicially established, becomes a stipulation to pay the amount of the judgment as soon as it is duly rendered. The only difference, therefore, between the case supposed and the case now before us, is one of time, which in no way affects the principle which I am now considering.

Some stress has been laid on the circumstance that in the act of 1847 the judge is called a commissioner.-(9 Stat. at L., chap. xx, § 6, p. 130.) Upon this point I have but two remarks to make: (1) that it was not competent for Congress, in the year 1847, by an act declaratory of the meaning of the act of 1834, to affect vested rights; and (2) that Congress did not mean to make any such declaration, for the object of the act of 1847, as regards this subject, was not to declare whether the judge acted as a commissioner, or in his judicial character under the act of 1834, but merely to transfer the unfinished business under that act to the judge of the district court of Florida.

It is not at all questioned that the evidence in this case abundantly shows that it was within the jurisdiction of the judge who decided it ; that the decision in it was rendered by the judge by whom it purports to have been rendered; and that the injury complained of was occasioned in the years 1812 and 1813, to the petitioner's intestate, who was at that time a Spanish subject, by the troops of the United States in East Florida, before the entrance into that province of the agent and troops of the United States. The decision of the judge, therefore, is just and equitable, within the provisions of the treaty of 1819, and the United States are bound by the faith of treaties, by the laws enacted by Congress to carry the treaty of 1819 into effect, and by the principles of that great moral code which has come down to us from on High, and which neither individuals, nor nations, can ever disregard with impunity, to satisfy it to the uttermost farthing.

My opinion, therefore, is, that the petitioner is entitled to relief.

NOTE.

The following are the translations referred to in the opinion of SCARBURGH, J.:

1. TRANSLATION FURNISHED BY THE SOLICITOR.

Extract from the treaty with Spain of 1819:

Y los Estados Unidos satisfarán los perjuicios, si los hubiese habido, que los habitantes y oficiales Espanñoles justifiquen legalmente haber sufrido por las operaciones del Exercito Americano en ellas.

[Translation.]

And the United States shall (or will) satisfy (or make satisfaction) for the injuries, if any there should have been, which the Spanish inhabitants and (Spanish) officers may or shall judicially prove, according to law, that they have suffered (literally to have suffered) by the operations of the American army in them (the Floridas.)

NOTES. The words si los hubiese habido are about as literally translated, I think, by "if any there should have been," as they could be, preserving their plain meaning at the same time.

I understand the word Españoles to apply as well to habitantes as to oficiales. It seems to have been so understood by the negotiators of the treaty, and the arrangement of the words favors that idea, I think. Oficiales Españoles means Spanish officers, not officers of Spain; and in this case there might be a difference as well as a distinction. If the word was España, instead of Españoles, then it would not refer to habitantes without changing the phraseology of the

sentence.

The words justifiquen legalmente are accurately translated, in my opinion, by may judicially prove, according to law." Justificarjustum facere is a verb that has a good many meanings. When it is used as a law term, as it is in this clause of the treaty, it signifies that, or something equivalent. The translation might be varied, and the meaning still preserved; but, to be correct, it must convey the idea that the injuries (named in the treaty) are to be proved by judicial proceedings of some kind, conducted in legal manner and formlegalmente. Escriche says, in his Spanish Law Dictionary, that the word justificacion means the proving of something by documents or witnesses; and justificar means, in Spanish law, to produce judicially written or oral proof of a thing.

2. TRANSLATION FURNISHED BY THE COUNSEL FOR THE PETITIONER

Y los Estados Unidos satisfarán los perjuicios, si los hubiese And the United States will satisfy the injuries, if them there have habido, que los habitantes y oficiales Españoles justifiquen* been, which the inhabitants and officers of Spain may judicially prove legalmente haber sufrido por las operaciones del Exercito according to law to have suffered by the operations of the army Americano en ellas.

1American in them, (the Floridas.)

NOTE. This translation is made word for word, as being more satisfactory.

Justifiquen is translated "may judicially prove." It is the subjunctive present of the verb justificar. This verb is translated into Latin by the Spanish Academy, "in jure, judicio, probare," and is explained, in Spanish, by the same Academy, as follows: