able within the provisions of the treaty," and thus foreclosed that question (That the right to the interest decreed by the judges, by way of damages, for the loss of the use and fruits of the property, is a pure question of law under the treaty, to be decided by the laws and usages of nations, see the authorities cited.)

23. If the Secretary of the Treasury had authority to revise the decision of the Florida judge, made in accordance with the treaty, the acts to carry it into effect, and the law of nations; yet, as he did not allow and pay the full measure of damages so decreed in favor of the claimant, this court is bound to decree, according to the said treaty, acts, and law of nations, that the said claimant is entitled to the payment of the residue of said decree.-(See act of 24 February, 1855, organizing the Court of Claims, and authorities before cited; 2 Story, on Const.; sec. 1675, 1676, 1677, 1678, 1679. Ib. sec. 1574, p. 365, note 3.)

24. The Secretary of the Treasury, by applying the usage of the Treasury Department to these treaty cases, and by rejecting, under that usage, an essential part of the satisfaction stipulated by the treaty, and established by process of law, violated both the treaty and the express direction of the acts under which he proceeded-which acts directed him to the provisions of the treaty for his guide, and not to the usage of the Treasury Department.-(See authorities under 1st and 2d points, also treaty and acts. Lieber on Precedents, 18 vol. American Jurist, 286 to 293; 10 Peters, 95; Ib. 153; Hob. 270; 4 Coke, 94; Bouvier's Law Dict., Title Precedent, p. 349; Title Reason, p. 408; Ib. p. 525, Title Stare Decisis; 1 Kent, 476.)

25. The usage which the Secretary applied was not applicable to this class of claims-(damages for injury to property)-if they had been domestic claims, and governed by the municipal laws and usages of the United States, instead of being international claims, governed by the law of nations.

There is no rule of the Treasury Department against the payment of interest, by way of damages, as a measure of satisfaction for injuries to property, under acts of Congress containing no express provision for its payment.

It was paid under the act of 2d July, 1836, for the relief of Mrs. O'Sullivan, upon an opinion of Attorney General Butler, under a direction in the act to pay the "actual loss."-(6 Stats. at Large, p. 697; printed Opinions of Attorneys General, old edition, p. 1115.)

It was paid in Sibald's case, under the act of 23d August, 1842, by the direction of Attorney General Nelson, under a direction in the act to ascertain "the actual damages which Charles F. Sibald has sustained and would be entitled to recover upon the principles of law, as applicable to similar cases, by reason of the interference of any agent or agents of the United States, acting under their authority, with the use, possession, or enjoyment of his lands, timber, mills, or other property in East Florida."-(6 Stats. at Large, p. 864; Ex. Doc. No.

68, 2d session, 32d Congress, p. 27; Attorneys General Opinions, p. ; same House Doc. No. 68, p. 27.)

It was paid to George Fisher's legal representative, under the act of 12th April, 1848, under a direction of said law, requiring the Auditor to adjust his claims for property taken or destroyed by the troops of the United States in 1813,"on principles of justice and equity, and so as to afford a fair and full indemnity for all losses and injuries occasioned by said troops."-(6 Stats. at Large, p. 712; Attorneys General Opinions, vol. 2, p. 2139.)

For the rule of the department, see opinion of Attorney General Taney of 10th September, 1831.-(Op. Att'ys Gen., vol. 1, p. 785.) For numerous instances where Congress has provided expressly for the payment of interest in cases of tort, see Am. State Papers, vols. 1 and 2, Miscellaneous.

That in all other cases where the same measure of damages has been awarded under treaties, as a satisfaction for injury to property, it has been paid at the Treasury Department.-(See authorities cited under 6th point.)

That the usage of the Treasury Department in the Florida cases, being in violation of the usage in other treaty cases, and in violation of the treaty and law of nations, is nugatory.-(See Money et al. vs. Leach, 3 Burr, 1747; United States vs. Buchanan, 8 Howard, 102; Cowan, vol. 2, pp. 707, 748; 16 John, p. 374; Leigh's (Va.) R. 632.)

26. If it were conceded that the injuries of 1812 and 1813 were not embraced by the treaty, and were not recognized to be within it by Congress, still, as they have been recognized by Congress to be international injuries, committed in violation of the law of nations and the then subsisting treaty with Spain, for which the United States are bound to make indemnity; and as Congress has directed them to be adjudicated and paid, under the act of 1823, precisely like the injuries of 1818, the law of nations would govern the measure of damages.(See authorities cited.)

27. The opinion of Mr. Chief Justice Taney, in the case of the United States, appellant, vs. Ferreira, adm'r. of Pass, (13 Howard, p. 40,) is not authority: because—

1. The decision of the court was, that it had no jurisdiction; and the opinion does not go to the point presented for decision, and to the conclusion of the judgment.-(See Cohens vs. Virginia, 6 Wheaton, pp. 399, 400; Vaughan, p. 382; Yale Todd, Supreme Court U. S., 17th February, 1794; Const. U. S., 2 art., 2 sec.; Wiscart et al., pl's in error, vs. Dauchey, def. in error, 3 Dallas, pp. 321 to 327, and so on; United States vs. Benjamin More, 3 Cranch, 159, and so on; United States vs. Goodwin, 7 Cranch, pp. 110, 111; The Mary, 9 Cranch, 144; Ram. on Legal Judgment, pp. 36, 37, 48, 49, 50, 116, 121, 122.)

Elliot vs. Pearsol, 1 Peters, 340, 341; Thompson vs. Tolmie, 2 Peters, 163; Wilcox vs. Jackson, 13 Peters, 511; Rose vs. Himely, 4 Cranch, 269; Lessee of Hickey vs. Stewart, 3 Howard, 762, 763,

that the decisions of tribunals having no jurisdiction are simply void; they confer no right, and conclude no right.

2. A power given by the Constitution to Congress cannot be so construed as to authorize the destruction of other powers given in the same instrument; and therefore no act of Congress can be construed to have been so intended.-(3 Story's Com. Const., pp. 355, 356.)

3. An act of Congress cannot be so construed as to confer supervisory powers upon a Secretary of the Treasury over the proceedings of a judicial tribunal. It would be the destruction of the power given by the Constitution to Congress, to vest the judicial tribunals with all the judicial power. It would overthrow fundamental principles; and therefore the acts of Congress must be so construed as not to admit of such absurd consequences.-(Martin vs. Hunter, 1 Wheaton, pp. 327, 328 to 330, and so on; United States vs. Fisher, 2 Cranch, 358; Dwarris on Stats., p. 755; Paine's C. C. Rep., p. 11.)

4. The Supreme Court, by its own decision, had no jurisdiction in said case; and its decision is only authority to show that it had no jurisdiction. The Supreme Court itself declared that "the only question now before us is, whether we have any jurisdiction," (p. 46;) the legal authority of the case, therefore, only goes to that single point.(Cohens vs. The State of Virginia, 6 Wheat., p. 377; Bole vs. Horton, Vaughan, p. 382.)

5. The opinion of the Supreme Court, in the case of Ferreira, was founded upon a supposed decision in Hayburn's case, (2 Dallas, 409;) whereas no decision was ever made in that case.

6. The opinion was founded on certain extra-judicial opinions set forth in a note to Hayburn's case, which were not judicial authority, and which were overruled by the decision of the Supreme Court of the United States in the case of Yale Todd, which case was unknown to the Supreme Court when the decision in the case of Ferreira was pronounced. (See note to the decision in the case of Ferreira, 13 Howard, pp. 52, 53; Ram. on Legal Judgment, p. 183; 2 Brod. & B., 593, 594; 7 Price, 503.)

7. The opinion was founded on the unconstitutional assumption that Congress could, by law, appoint commissioners to decide claims to indemnity under a treaty, without a nomination by the President or a confirmation by the Senate.-(Const. U. S. art. 2, sec. 2.)

8. The opinion was founded on the illegal assumption that judges of the United States could act as commissioners; which was overruled by the unanimous decision of the Supreme Court of the United States in the said case of Yale Todd.-(2 Story Com. Const. sec. 1777, and authorities there cited.)

66

9. The opinion was made upon the assumption that the act of 1823 did not make the provisions of the treaty" obligatory upon the Florida judges, in the adjustment and decision of the claims arising under the 9th article of the treaty.-(See act March 3, 1823.)

10. The opinion was founded upon the erroneous assumption that the acts passed to carry the 9th article of the treaty of 1819 into effect required the claims, or injuries, for which the treaty stipulated satisfaction, to be adjudicated and established by the Secretary of the Treasury, and not by the judges.

11. The opinion was made upon the illegal assumption that "the authority conferred on the respective judges was nothing more than that of a commissioner, to adjust certain claims against the United States; and the office of judges, and their respective jurisdictions, are referred to in the law merely as a designation of the persons to whom the authority is confided, and the territorial limits to which it extends." 12. The opinion was made upon the illegal assumption that “the treaty meant nothing more than the tribunal and mode of proceeding ordinarily established on such occasions," meaning an ordinary board of commissioners, such as was provided for by the 11th article of the said treaty.-(See 9th and 11th articles of treaty and acts to carry them into effect.)

13. The opinion was made upon the erroneous assumption that no process was required to bring the claims before the court, and that the acts of Congress require no petition" for that purpose.-(See act of March 3, 1849, 9 Stats. at Large, p. 788.)

14. The opinion was made upon the erroneous assumption that "the question as to the construction of the law" of 1792 "was not decided in the Supreme Court."-(See certified copy of decision of Supreme Court, in the case of Yale Todd, of February 17, 1794.)

15. The opinion was made upon a misunderstanding of the extrajudicial opinions of the judges in the note to Hayburn's case; and also as to the acquiescence of the executive and legislative departments of the government, at that time, in the opinion that the judges could act as commissioners under the act of 1792.-(For repealing act of February 28, 1793, and joint resolution of June 9, 1794; see them cited post.)

16. The opinion was founded upon the erroneous assumption that the acts of 1792 and 1823 were "the same in principle."-(See the acts.)

17. The opinion erroneously assumes that "neither the evidence nor the award are to be filed in the court in which he (the judge) presides, nor recorded there; but he is required to transmit both the decision and the evidence upon which he decided, to the Secretary of the Treasury."-(See act of March 3, 1823, and the record on file in this case; Rhode Island vs. Massachusetts, 12 Peters, 750, 751.)

18. The opinion relies upon the extra-judicial opinions or letters of the judges, addressed to President Washington, to be laid before Congress; which opinions were not given in any case brought judicially before the judges, and were given without argument or judicial deliberation, and which were, after full argument and judicial deliberation, unanimously overruled in the Supreme Court, by the same judges, in the case of Yale Todd.-(Am. State Papers, vol. 1, Miscellaneous, pp. 49, 50, 51, 52, 53, 78; special message of President to Congress of Nov., 1792, Ho. Journal, vol. 1, pp. 614, 649, 659, 666; Annals of Congress, 2d Congress, from 1791 to 1793, pp. 556, 557, for memorial of Hayburn to Congress; same book, p. 803, for amendment requiring judicial decision by Supreme Court; ibid, 3d Congress, Supreme Court decision in Todd's case, reported to Congress by Secretary of War; for Pension act of March 27, 1792, see 2d vol. Laws U. S., 1 Stats. at Large, p. 243; for act repealing same, see

Stats. at Large, vol. 1, p. 324; for joint resolution of Congress of June 9, 1794, rejecting all pension claims allowed by judges as commissioners under the aforesaid act of 1792, see Stats, at Large, vol. 1, p. 401; Ram. on Legal Judgment, p. 183; 2 Bing., 292, 297, 303.) 19. The first opinion, delivered before the case of Yale Todd was brought to the attention of the court, shows that the case of Ferreira was disposed of without full examination, upon the authority of the extra-judicial opinions of the judges set forth in the notes to Hayburn's case. That opinion declared that "the question as to the character in which a judge acts in a case of this description is not a new one. It arose as long ago as 1792, in Hayburn's case, reported in 2 Dallas, 409," (p. 4.) After setting forth these extra-judicial opinions, which had been overruled by the Supreme Court in Todd's case, the opinion adds: "After the decision thus made in 1792, and acquiesced in at the time by the other departments of the government, we think that the question must be regarded as settled, and not now open to controversy under the act of 1823."-(Printed opinion first delivered, on file in the office of the clerk of the Supreme Court.)

20. The note appended to the said decision "by order of the court," after the decision in the case of Yale Todd was brought to its notice, divests the said decision of all authority, and leaves the decision of the Supreme Court in the case of Yale Todd-that the judges could not act as commissioners under the act of 1792-in full and unimpaired force. (See note.)

21. The opinion is not authority, because of various other mistakes of law and of fact apparent on its face.-(1 Stark. Ev., pp. 257, 260 to 308.)

DEAR SIR: The publication of Hon. J. L. Orr's speech in reference to certain Florida claims induces me to request that you will also publish the replies of Mr. Stanton, of Tennessee, and myself, as well as the accompanying correspondence, which I deem important in explanation of a point in the discussion not anticipated. This favor will be but an act of justice to my constituents, and I trust you will oblige, very respectfully, your obedient servant,

Rep. C. C. 127-3

A. E. MAXWELL.