est on debts, or money demands, and when and under what circumstances it may or ought to be allowed or disallowed in such cases; and hence it furnishes no clear rule in respect to the allowance of interest as a measure of damages in cases of tort, or in redress of injuries, or as a compensation for the loss of the use, or of the profits of the property illegally taken. At all events, there is nothing in the reasoning or arguments of that paper which in any respect militates against the positions above taken.

This controversy between Mr. Jefferson and Mr. Hammond was finally settled by the sixth article of the treaty of 1794, as will be seen by a reference to that article, in which this government certainly do not deny the propriety of the interest.

But it is said the government never pays interest." It will readily be admitted that there is no statute law to sustain this position. The idea has grown up from the custom and usage of the accounting officers and departments refusing to allow interest generally in their accounts with disbursing officers and in the settlement of unliquidated domestic claims arising out of dealings and transactions with the government. It can hardly be pretended, however, that this usage or custom is sufficiently "reasonable," well known, and "certain," to give it the force and effect of law, and to override and trample under foot the law of nations, the municipal law of the country, and also the well settled practice of the government itself in its intercourse with other nations. This would, indeed, be giving most potent effect to departmental usage.

That the usage or practice of any particular executive department of a government cannot be sustained (however ancient it may be) when against the well settled principles of law, (see 3d Burrows' Rep., 1767.) "When the law is clear, usage cannot control it."(2d Cowen, 707; New York Firemen's Insurance Company vs. Ely; and 16 Johnson, 374.)

Now, if by the law of nations and all other laws, it is clear that the United States are bound to pay interest as a part of the damages in these cases, as I think I have shown that it is, certainly no practice or usage of the Treasury Department can relieve them from that obligation.

But the assertion that the "government never pays interest" is not founded in fact. There is no such inflexible usage or custom in the broad sense in which it is generally understood or stated. The government is just as much bound to do equal and exact justice to all as an individual would be; and they not only do pay interest, but have done it in many domestic cases of a character similar to these claims, and that, too, under the advice and approval of the law officers of the government.

In the case of Major Tharp, referred to the Attorney General for his opinion, the present Chief Justice, (then Attorney General) says: "I am not aware of any statute of the United States that forbids the Secretary of War or the accounting officers to allow interest to a claimant if it should appear that interest is justly due to him. As the United States are always ready to pay when a claim is presented, supported by proper vouchers, it can rarely, if ever, happen that they

are justly chargeable with interest, because it is the fault of the claimant if he delays presenting his claim, and does not bring forward the proper vouchers to prove it and justify its payment. But in Major Tharp's case, or any other, if the Secretary of War, upon a review of the whole evidence, should be of the opinion that interest is justly due to the claimant, I think he may legally allow it."-(Opinions of Attorneys General, 1841.)

Here we have the whole length and breadth of the rule, and the reasons of it. But if any such rule or practice or usage had acquired the force or dignity of a "custom" or law, the then Attorney General could not with propriety have said that the Secretary might "legally allow interest' in any case; if the rule was inflexible-if it was law, the Secretary could not depart from it.

In the case of O'Sullivan, the direct question arose, whether the party claimant was entitled to an allowance for the loss of the use of his property, in addition to the value of the property itself. The property was a vessel, and the claim was for demurrage, being much more than the legal rate of interest on the value of the property. The Attorney General (vide Opinions of Attorneys General, p. 1815) decided that it was allowable; and it is understood that it was allowed and paid at the Treasury Department as a part of the "actual loss."

In the case of Sibbald, an act of Congress provided that he should be paid the actual damages" which he had suffered by injuries to his property; and in this case interest was allowed under the opinion of Attorney General Nelson, of 30th September, 1844.

In the case of George Fisher, an act of Congress gave him a "full and fair indemnity' for certain "losses and injuries' suffered by him. In this case interest was allowed, with the sanction of the Attorney General.

But I forbear to pursue this point any further. If enough has not already been shown to establish the propriety and justice, as well as the legality, of allowing interest in these cases, I should despair of doing so either by argument or authority. If Moses and the Prophets' were not sufficient for the unbeliever of olden time, so neither would a more lucid exposition or a greater array of authority tend to convince one who doubts upon this point.

He

It remains for me now to notice more particularly some of the other points and arguments of the respective counsel on the hearing of this case. The paper hereto annexed (marked A) shows the points submitted by the district attorney on behalf of the United States. also made some objections to the admissibility of evidence and other minor objections of that character, which were settled as they arose in the course of the argument, and which it is not deemed necessary to advert to more particularly.

On the part of the claimant, his counsel also made certain points, which are substantially stated in the paper hereto annexed, (marked B.) It will be perceived by a reference to these points" of the respective parties, that the true construction of the last clause of the 9th article of the treaty, and of the laws of Congress of 1823 and 1834, to carry it into effect, as well as the character of the decisions in these cases, whether judicial or otherwise, and the effect of the

awards, were drawn in question by both parties, and made the subject of elaborate argument.

As the judge is required to adjudicate these cases according to the provisions of the treaty it is, no doubt, very proper to inquire and ascertain the true construction of those provisions as well as of the acts of Congress to carry it into effect. But it may well be doubted whether some of the questions above alluded to are necessarily or legitimately questions for my consideration, and to what extent I am called upon to give any decision in respect to them. And so far as they do not relate to the appropriate action of the judge, under the treaty and the laws, I do not intend and shall not be understood, I trust, as attempting to give any authoritative decision upon them. But as they are so interwoven with each other that it is difficult to separate them, and as both parties have pressed them strongly upon my attention, and both parties (the district attorney on behalf of the United States, as well as the council for the claimant) have particularly requested my opinion on all the points argued, I proceed to state, so far as it relates to the main questions arising out of those points, my conclusions or opinion, although in some respects they are different from my former preconceived views.

I have already remarked that I consider this clause of the 9th article of the treaty as the paramount law of the case, and the acts of Congress of 1823 and 1834 as auxiliary or subsidiary to the treaty, and intended to carry its provisions into effect. The mode provided by the treaty of establishing the amount of the claim in each of these cases, or of ascertaining the sum to be paid, is a novel and unusual one for such claims, and, so far as I am aware, is not found in any other treaty, or adopted in any similar case. Usually a board of commissioners is provided for the adjustment of such claims; but in this case the treaty provides that the United States shall pay or make satisfaction for such injuries to individuals as "shall be established by process of law." It is not to be presumed that the able diplomatist who, on the part of the United States, negotiated this treaty, and well understood the import of words, used this term at random, and without some definite intent; nor that the Spanish minister's attention was not called to this extraordinary mode of adjusting claims under a treaty, and that he did not well understand its effect. If this phrase, or term, is one not known to the law of nations, or one which, by the public law, has no particular meaning or construction attached to it, we must, of necessity, look to the common law, or the municipal laws of our own country or Spain, or wherever the term may be found, for the true construction of it. The term is one which is used in the Constitution of the United States, and, either in the same language or substance, in the constitutions of many of the States, and one which is familiar both in this country and England, and well known to the common law; and, as a " term of art," Grotius says, recourse must be had to those most experienced in that art for explanation.-(See Campbell's Grotius, vol. 2, chap. 16, on the Interpretation of Treaties, sec. 3. Also Vattel, book 2, chap. 17, sec. 276; and same principle in Dwarris on Statutes, p. 702; and Puffendorff, book 5, chap. 12, sec. 4.) And again, Vattel says that "attention ought principally to

be paid to the words of the promising party," and those words should of course have their full effect as he understood them.-(Vattel, book 2, chap. 17, sec. 267. Also, vide sec. 268, &c. Also, Kent, vol. 1, p. 174; and Wheaton's Int. Law, p. 334, sec. 17; and particularly the United States vs Jones, 3 Wash. C. C. Rep. 209, and at 215.)

Looking, then, at the sources from which we must of necessity derive the true construction of this term, we see at once that "process of law' must of necessity mean nothing short of judicial proceedings. Judge Tucker says that "due process of law" must be had before a judicial court or judicial magistrate."-(Vide Tucker's Com., vol. 1, Appendix, p. 203.)

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Chancellor Kent (Com., vol. 2, p. 13, 6 edition, and note b) says: "The better and larger definition of due process of law,' is, that it means law in its regular course of administration through courts of justice."(See, also, Story's Com. on the Constitution, vol. 3, pp. 660 and 661, and Baldwin's Views of the Constitution, p. 137.)

In 4th Hill's Rep., p. 146, the Supreme Court of New York says that the words "cannot mean less than a prosecution or suit instituted according to prescribed forms for ascertaining guilt or determining title to property."-(See, also, 2d Coke's Inst., p. 50, and 19 Wendell, 676.)

To establish a thing by "process of law," then, necessarily requires a hearing, trial, and judgment, before some judicial tribunal or magistrate, and the proceedings and judgment, or decision, must of necessity possess all the elements and attributes of a judicial proceeding, provided they are conducted by "due process of law.'

If this position is correct and after the most mature deliberation I think it is then it follows, as a necessary corollary from the premises, that the awards in these cases were judicial decisions, and possess the ordinary attributes or effect of judicial judgments, and necessarily final and conclusive, unless appealed from by appeal to some superior judicial tribunal authorized to re-examine and revise them.

But it is said that a direct supervisory or appellate power over the awards of the judge in these cases is given by the 2d section of the act of Congress of 1823, to the Secretary of the Treasury, and that he is authorized by that act to alter, revise, and modify them as in his opinion may be just.

The first answer to this is, that if the position above assumed be correct, and if the awards are judicial decisions, no such power can rightfully be given to the Secretary. The power to revise or reform the judgments or decisions of any court or judge acting judicially, can only be conferred on other courts, or on some judicial tribunal, and cannot constitutionally be lodged in the Secretary of the Treasury, or any other executive officer; and in so far as the act makes any such provision, it would be unconstitutional and void.-(Vide 1st Wheaton, 304 and 380, Martin vs. Hunter.)

But the more proper view of this point, and a more easy solution of this apparent difficulty, is, I apprehend, that no such appellate power is given to the Secretary, and that such is not the true construction of the act of Congress.

The treaty, it should be borne in mind, provides that these injuries

should be established by process of law, i. e., judicially established, as is above assumed; and the obligation of the treaty, as to the mode of establishing them, is equally obligatory upon the nation, as is the duty of having them established and paid; and Congress could not (or perhaps I may better say ought not) to make any law which should provide another and different mode not contemplated by the treaty and in direct violation of it. I have no doubt that Congress might, for a good cause, annul the whole treaty, or declare that some particular article of it should not be observed, (which would of necessity. annul the whole.) Every nation, of course, possesses the power of determining for itself the propriety and expediency of renouncing treaties and this nation no less than any other-(and they have exercised it, vide 1st vol. Stat. at Large, p. 518.) This is a necessary attribute of sovereignty; and if Congress should pass any such law or joint resolution, the courts of the country would, of course, be bound by the political action of the government in that respect, and would no longer consider such a treaty as the "supreme law of the land." But no such question arises here; Congress have not attempted to do any such thing; on the contrary, every act which they have passed on this subject has been professedly with a view and bona fide intent to carry out the treaty. The act of 1823 is entitled, on the face of it, "An act to carry into effect the 9th article of the treaty," &c., &c. And it is the clear duty of the judicial and executive departments of the government, in giving a construction to these acts, to so construe them, if possible, as to carry into effect the intention of the legislative power, and at the same time, if there is any apparent conflict between the acts and the treaty, to give that interpretation to them (if it can be done) which will make them harmonize with the treaty, and render them consistent with the treaty and each other; and above all, not to give them such a construction as would virtually nullify the acts themselves, and render the provisions of the treaty or the laws themselves useless or nugatory.

Authorities are hardly necessary, I apprehend, to sustain this proposition: but I will refer to the following: 2d Cranch, 64, or 1st Cond. Rep., 358 and 362. Also, Mr. Wirt's opinion, already quoted, pp. 568 and 569; Dwarris on Stat., p. 690; Pennington vs. Cox, 2d Cranch, 23, or 1st Cond. Rep., 346.) Let us see, then, whether a construction can properly be given to these acts which shall be entirely consistent with the treaty. And first, let it be be borne in mind, that the first section of the act of 1823 directs that these claims shall be adjusted (adjudged) "agreeably to the provisions of the 9th article of the treaty with Spain. (The word "adjust" is used in the 1st section, and "adjudged" in the 2d section; hence they may properly be considered as synonymous terms, or intended so to be in this act.) The manifest intent of this provision of the act of 1823 is, that the treaty should be the supreme or governing law of the case; and as that directed, so it should be. Hence, if it is the fair intendment of the treaty that these claims should be judicially established, then the law provides likewise for the same thing, so far as the first section of this act is concerned.

Is there anything, then, in the second section of this act, or the