our war with England, were not within the 9th article of the treaty of 1819 with Spain; and Secretary Rush having applied this decision to the losses of 1812 and 1813 in East Florida, Congress, on the 26th June, 1834, passed an explanatory act, entitled "An act for the relief of certain inhabitants of East Florida."-(6 Stat. at Large, p. 569.)

This act was passed to reverse and correct the decision of Secretary Rush, that the claims of 1812 and 1813 were not within the treaty. The 1st section of that act directs the payment of the decrees of the judges for losses in those years, which had been previously made, and rejected by the Secretary, with provisoes to guard against the payment of claims which were not found to be within the provisions of the treaty.

The 2d section authorizes the judge to "receive, examine, and adjudge all cases of claims for losses occasioned by the troops aforesaid, in 1812 and 1813, not heretofore presented to the said judge, or in which the evidence was withheld in consequence of the decision of the Secretary of the Treasury that such claims were not provided for by the treaty of February 22, 1819, between the governments of the United States and Spain, subject to the provisoes aforesaid, and to the further proviso that the claim should be presented to the judge within one year from the passage of the act.

Under the above provisions of the treaty, and acts passed to "carry it into effect," the claims in question have been adjudicated. Each claimant presented his claim by petition, verified by oath, and alleging, as required by the rules prescribed by the court, (see Rules, by Judge Reid,) the nature and extent of his losses, and the facts necessary to show that the claim was within the provisions of the treaty. The judge examined the witnesses when personally brought before him, and, when their testimony was taken by deposition, he selected and instructed the commissioners, and propounded cross-interrogatories to the witnesses, as is shown by the record on file in this case, and the records remaining on file in the Treasury Department.

All the evidence was recorded, and a copy of it, and of the decree of the judge, when "in favor of the claimants," was reported to the department for payment, as required by the act of 1823.

In making up his awards or decrees, the judge allowed, as a just and proper measure of damages under the law of nations necessary to fulfil the stipulations of the treaty, the proved value of the property at the time of the injury or loss; and, by way of satisfaction for the further loss of the use, fruits, or profits of the property, whilst wrongfully deprived of them, and of the just satisfaction for them which the law of nations required; and, during the period that no provision of law existed for the presentation and payment of said claims, he added five per cent. interest, by way of damages, and as an equitable measure of damages, to the original value of the property, (being the legal rate of the country,) and made a formal decree that the United States pay the same to the claimants. The decrees thus made in favor of the claimant were, as before stated, reported to the Secretary of the Treasury for payment; when against him, they were deemed final, and were never reported to the Secretary or heard of afterwards.

That when the decrees of the judge, allowing this legal measure of damages under the treaty and law of nations-which governs treaty obligations were first presented to Secretary Woodbury, in December, 1836, he, instead of paying the amount of the decree, as required by the 2d section of the act of 1823, in cases found "within the provisions of the TREATY," claimed the right to go fully into the merits of the claims upon the evidence reported, and called upon the judge for further evidence wherever he entertained doubt. In regard to the damages decreed for the loss of the use and fruits of the property, it was rejected, in all instances, under the mere usage of the Treasury Department in reference to domestic pecuniary demands, (which the government assumes to be always ready to pay,) without any reference to the treaty, the law of nations, or the express directions of the act of 1823, which required the Secretary, when he paid at all, to pay the amount of the decree. The claims seem never to have been considered with any reference whatever to the treaty or the law of nations, until Mr. Secretary Walker's reference to the Attorney General, in 1849. All the previous references related to the mere usage of the department in regard to domestic accounts. Since that period, the precedent of Mr. Secretary Woodbury's decision, in 1836, has been set up as a bar to the consideration of these claims under the treaty and the law of nations; and the claims have been referred by the Secretary to Congress, with an opinion of the Attorney General substantially conceding the correctness of the measure of damages awarded by the judges, but advising the Secretary to adhere to the precedents under the departmental usage, until further legislation by Congress.

The petitioner further represents, that, after the passage of the aforesaid act of the 26th June, 1834, he filed his petition, under oath, before the proper judge, setting forth his claim, amounting to the sum of $22,160; and also setting forth all the facts necessary to bring the same within the provisions of the treaty, and within the jurisdiction of the said judge, and in the manner prescribed by law and the rules of the court, and within the time limited by said act of 26th June, 1834; and prayed that said claim might be adjudicated by the said judge, and such adequate indemnity awarded as to him might seem reasonable, with interest on the amount of the losses from the date of their occurrence. That the said judge took jurisdiction of the said case, and thereupon such evidence was taken, and such judicial proceedings had, that on or before the third day of September, 1837, the judge made his final decree in favor of this petitioner for the sum of $9,214, (an amount far less than his evidence warranted, and less than one half of his actual losses,) with an interest of five per centum per annum from the 10th day of May, 1813; which decree and proceedings, with the evidence, duly certified by the said judge on the said 3d day of September, 1837, were immediately reported by him to the Secretary of the Treasury for payment, as provided by lawall of which will fully appear by the record remaining on file in the Treasury Department, and for which this honorable court is respectfully requested to call, as the Secretary of the Treasury declines furnishing the same, or even a certified copy thereof, to the petitioner, until such call shall be made by this honorable court.

That on the receipt of the said record and proceedings at the Treasury Department, payment in full of the said decree was demanded by the petitioner; but the Secretary of the Treasury, the Hon. Mr. Woodbury, applying the principles and practice herein before set forth, refused such payment in full, though all the items of claim embraced by the decree were conceded to be within the provisions of the said treaty; but, on the 25th day of October, 1837, he approved and directed the payment of the sum of $7,500 without interest, that sum being deemed a reasonable remuneration for the losses, as proved by the evidence adduced; and that amount was accordingly paid on the 27th of October, 1837.

That afterwards, in the year 1852, the then Secretary of the Treasury referred the question of the right of this petitioner to the payment of the residue of the said sum of $9,214, decreed as the original value of the property, to the Solicitor of the Treasury for a report thereon. That, on the 12th of March, 1852, the said solicitor made a report in favor of such payment, which was fully concurred in by a report of the assistant to the Secretary of the Treasury, (J. N. Barker, esq.,) dated the 2d September, 1852, upon consideration of which reports and of the case, the said Secretary directed payment of the residue of the amount decreed by the judge as the original value of the property; and the same was accordingly paid.

The remainder of the said decree, being the damages awarded by said judge under the name of interest, for the loss of the use and fruits of the property, in strict accordance with the obligations of the said treaty, was again rejected under Mr. Woodbury's precedent of applying departmental usage in cases of pecuniary domestic accounts to cases arising under a treaty stipulating "satisfaction" for injury to property, instead of the law of nations, which alone governs such cases, and still remains due and unpaid. All which will appear by the record of the action of the Secretaries in this case remaining on file in the Treasury Department, and which the petitioner prays may be called for by this honorable court, for the reasons before stated, in relation to the judicial record.

The petitioner therefore begs leave to represent to this honorable court that though two learned Attorneys General, a learned Solicitor of the Treasury, and the judge of the district court of the United States for the northern district of Florida, upon a full review of all the questions involved in this case and others of the same class, have decided that the measure of damages decreed by the judge in this case is the just and proper one to which the claimants are entitled under the treaty and law of nations, and under the acts of Congress passed to carry the treaty into effect, and have conceded the error of Mr. Woodbury in applying the departmental usage to treaty cases, instead of the law of nations; and though every former Secretary and Attorney General who has acted on these cases has united in this opinion, still the erroneous rule established by Mr. Woodbury, in violation of the treaty, the acts of Congress, and the law of nations, has been holden to be binding upon his successors until Congress should interpose. That the acts passed to carry the treaty into effect have been construed without reference to the treaty, and in such a manner as to defeat the very

object for which they were passed; that the law which is conceded to govern these cases, and by which the legality and justice of the judge's decree in this and the other cases are to be decided, has never been applied to them; that the claimants do not ask the payment of the damages decreed under the name of interest, on any ground on which its payment is prohibited by the usage of the Treasury Department, but as a part of the actual damages decreed and reported by the judge, and which the treaty and acts bind the United States to pay, as imperatively as the original value of the property, and the payment of which the usage of the department does not touch.

The petitioner, therefore, respectfully represents to this honorable court that he hath obtained, "by process of law," a just and valid judgment establishing the amount of the injury occasioned by the operations of the American army in East Florida, to the petitioner, in the years 1812 and 1813; which, by the treaty and acts of Congress before stated, the Secretary of the Treasury was required to pay, and which the government is still bound to pay: 1. Because the Secretaries of the Treasury, by their approval and payment of the whole amount decreed by the judge as the original value of the property at the time of its loss, have themselves affirmed the right of the claimant, under the acts passed to carry the treaty into effect, to the payment of the whole amount of said decree. 2. Because the said decree, being thus shown by the evidence reported, to be "within the provisions of the treaty," and consequently within the jurisdiction of the judge, was final and conclusive, and the Secretary was expressly directed to " pay the amount thereof, out of any money in the treasury not otherwise appropriated." 3. Because the portion of the decree which remains unpaid is right and just, and an essential part of the "satisfaction" for which the treaty stipulated; and because the measure of damages decreed by the judge is in accordance with the rule of satisfaction uniformly recognized by the United States in their diplomatic intercourse, and in the construction of their treaties with other nations containing similar stipulations; and is uniformly sanctioned, as the only just rule, by every source of authority, whether elementary, judicial, or diplomatic; and is, in fact, the most modified rule of satisfaction for injury to property known to the common, civil, or public law.

That even if the judges could and did act as commissioners, without ever having been constitutionally appointed, commissioned, or sworn as commissioners, (which the Supreme Court declared they could not,) still, no one has ever decided, or intimated the opinion, that the Secretary acted as a commissioner. He manifestly acted in his capacity of Secretary of the Treasury, in which alone he had been appointed, commissioned, and sworn, and in which alone he was authorized to pay money out of the treasury.

Though the treaty did not create a tribunal to establish the claims under the 9th article thereof, yet, as it stipulated for a judicial establishment of the claims, all other tribunals, except a judicial one, were as distinctly excluded as if they had been expressly excluded by the positive provisions of the treaty; and a judicial tribunal to establish them was as clearly provided for as if some particular judicial tribunal had been named in the treaty, as a board of commissioners was

named in the 11th article. The United States, therefore, was not left free to establish any tribunal it pleased, or any tribunal but a judicial one. They might refuse to execute the treaty; or they might create a tribunal different from that promised; but a refusal to execute the treaty could not be set up as a fulfilment of it; nor could the action or decision of a tribunal different from that required by the treaty be claimed to be a fulfilment of the treaty stipulation; nor could the attribute of finality be ascribed to its decisions any more than it could to the decisions of an executive officer, if one had been substituted for the board of commissioners provided for by the 11th article of the treaty. The treaty tribunal, under the 11th article, was a board of commissioners; and the only tribunal that can be considered a treaty tribunal under the 9th article must be a judicial tribunal of some kind. None other can fulfil the treaty stipulation for a judicial establishment of the claims. A tribunal totally different from that provided for by the treaty cannot, in any just sense, or with any semblance of good faith, be considered a treaty tribunal. A treaty tribunal must be one created in conformity to, and of the character provided for by the treaty, and not one created in violation of the treaty.

The Secretary of the Treasury was no part of a treaty tribunal agreed upon by the 9th article of the treaty of 1819; therefore his decision, allowing less than the treaty called for, cannot be final.

The petitioner further represents, that he caused a memorial to be presented to the 33d Congress, in this case, praying for the faithful execution of the 9th article of the treaty of 1819, by the payment of the residue of the decree made in his favor, as aforesaid, in which the merits of his claim were set forth substantially as they are in this petition. That his memorial was referred to the Judiciary Committee, both in the Senate and House of Representatives. That a strong report, affirming the right of the claimants under the treaty to the payment of the full amount of the decrees of the judges, and in favor of the legality and justice of the measure of damages decreed by them, was made by the Judiciary Committee of the House, accompanied by a joint resolution requiring the Secretary of the Treasury to pay the said decrees in full out of the general appropriation made by the acts of 1823 and 1834, passed to carry the treaty into effect. This resolution was laid on the table through the mis-apprehension and consequent opposition of a single member by a vote of 89 to 104, after having been taken up, out of its order, by a vote. of 118 to 54.-(Report No. 33, H. R., 2d session 33d Congress; House Journal, same session, pp. 368 to 378.)

No report was made by the Judiciary Committee of the Senate ;. but the joint resolution, reported in the House of Representatives, was offered in that body as an amendment to the civil and diplomatic appropriation bill near the close of the session, and after it had been laid on the table in the House of Representatives and was rejected, the two senators who opposed the amendment urging the propriety of referring it to the Court of Claims for a judicial decision upon the legal questions involved in this class of cases.

The petitioner further represents, that after the decision of this hon