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It is provided by the seventh paragraph of the ordinance, that the gov. ernor, previous to the organization of the General Assembly, shall appoint such magistrates, and other civil officers, in each county and township, as he shall find necessary for the preservation of the peace and good order in the same; and that, after the General Assembly shall be organized, the powers and duties of magistrates, and other civil officers, shall be reg. ulated and defined by the Assembly. After the formation of the Gene. ral Assembly, they are to detern:ine what powers and duties are necessary to be exercised in existing counties and townships, and to define and reg. ulate the same, for the preservation of peace and good order: this seems to involve the necessity of their determining what description of magis, trates and officers should possess these powers and discharge those duties. They having done this, the governor is to make the appointments. The provision in this paragraph appears to me to amount to this: that, before the General Assembly was organized, the governor was to appoint such cficers as he might judge to be necessary; afterwards, such as the legislature should judge to be necessary.
The eighth paragraph of the ordinance provides, that, for the prevention of crimes, the laws to be adopted or made shall have force in all parts of the district; and, for the execution of processes, civil and criminal, that the governor should make proper divisions, and from time to time, as cir. cumstances should require, lay out such parts of the district, in which the Indian title shall have been extinguished, into counties and townships; subject, however, to such alterations as may thereafter be made by the legislature. The authority which the ordinance gives to the legislature is, in general terms, to make laws in all cases for the good government of the district, not repugnant to the principles and articles of the ordi. Lance,
The laying out of counties and towns are usually considered as legislative acts, and, in the present instances, must be considered as apper. taining to the legislature, unless, by a proper construction of the ordimanoe, it is secured to the governor. It being once confessedly vested in him, and, by general terms, implying no limitation in point of time, the authority must be considered as still remaining in him, unless it is taken away expressly, or by some strong implication, or by some unforeseen change of the subject-matter upon which, or of the circumstances under which, the power is exercised. The civil and criminal processes, the ececution of which was to be the means of preventing crimes and injuries, and which was to be effected by a division of the described parts of the district into counties and townships, are recognised by the ninth para. graph of the ordinance to be such as should originate under made as well as under adopted laws; and if so, it implies a power in the governor to lay out counties and towns, after the General Assembly were sufficiently organized for the making of laws. This construction of the eighth paragraph is in some degree confirmed by the express limitations of the governor's power contained in the fifth and seventh, as there was the same reason for being explicit in the first as in the two last, if the same thing Was intended. It to my mind appears to be further confirmed by an express power being given to the legislature to alter such townships and counties as shall have been laid out. On the idea of the authority to lay our counties being vested in the governor, after the formation of a legislature, this was necessary; otherwise, not.
The ordinance provides, that, in case of the death or removal from office of a representative, the governor shall issue a writ to the county or township for which he was a member, to elect another in his stead. I perceive no question on the governor's transactions respecting the election of representatives, as returned by the secretary, excepting in reference to Meigs, who is said to have left the Territory. If he had not re. signed previous to the issuing of the writ for the election of a representative in his stead, I conceive the writ must be considered as issuing ille. gally. Knowing that some very respectable gentlemen are decidedly of the opinion that the governor has no right to lay out counties under the ordinance, I have slept many nights on my first impression on the subject; and am still inclined to the opinion I have above expressed, notwithstanding anything I have been able to learn respecting the matter. I have the honor, &c., &c.,
LEVI LINCOLN. To the PRESIDENT OF THE UNITED STATES.
COMPENSATION FOR SEIZURE.
Where a vessel alleged to be Danish property was seized as French property, on the south
side of the island of St. Domingo, and, whilst waiting examination under the protection of the American flag, was seized by a British armed ship and taken into Jamaica, and there corrdemned, and a claim made by the Danish subject upon the government for compensation, it was decided that the first captors were not liable for the first capture, and detention long enough for examination, nor for the second capture; and that the government of the United States is not bound for the unlawful capture of its subjects.
WASHINGTON, March 11, 1802. Sir: The vessel Mercator, alleged to be Danish property, and for the capture of which a claim is now made on the United States, was, by the armed schooner Experiment, belonging to the United States, seized on the 14th of May, 1800, on the south side of the island of St. Domingo, as French property. A prizemaster was put on board, and she was ordered to proceed to Commodore Talbot, then lying off Cape François, as is said, for examination. On her way, in about six hours after the capture by the Experiment, the Mercator was seized and carried into Jamaica by the General Simcoe, a British armed ship. When she was thus seized, she was sailing under the protection of the American flag. The prizemaster protested against this procedure in the island of Jamaica; notwithstanding, the vessel, with her general cargo, was condemned there as lawful prize to the use of the commander, officers, seamen, &c., of the British ship which captured her.
The cause of condemnation does not appear from the decree of con. demnation in the court of admiralty. A copy of the record states that an appeal was claimed by the owner of the prize, and granted. These are the principal facts contained in the papers. The reasons for the first or the second capture, for the condemnation, for the appeal, or for the non-prosecution of the appeal, are not stated. There is no circumstance separate from the decision of the admiralty court by which it can be de. termined that either of the seizures was justifiable; the legal presumptions are, however, in favor of them.
The general questions which present themselves are:
1. Has a Danish subject a right, according to the laws of nations, to demand a compensation for any damage resulting from the first seizure and detention?
2. If he has, is his claim on the captain of the Experiment, or on the United States ?
3. If on the captain, in case of his absconding or being insolvent, are the United States responsible?
It is true, by the law of nations, if the citizens of one State do an injury to the citizens of another, the government of the offending subject ought to take every reasonable measure to cause reparation to be made by the offender. But if the offender is subject to the ordinary processes of law, it is believed this principle does not generally extend to oblige the government to make satisfaction in case of the inability of the offender.
It is clear, from the situation in which the captured vessel was, that the captain of the Experiment was justifiable in seizing her, and detaining her long enough for an examination in a reasonable manner. There might have been probable cause for a seizure and detention, or for send. ing her to the commodore, (part of whose squadron the Experiment was ;) and yet no cause, from the examination, for sending her in. If, there. fore, the Experiment was justifiable in sending its prize to the conimo. dore, it could not become tortious and liable from the legal or illegal subsequent conduct of the British. It can never be considered as unreason. able or wrong, when a seizure is made by a small vessel belonging to a squadron on the same station, to send the prize to the commodore in the neighborhood for examination. The measure is presumed to be in favor of a fair result on the examination. If the Danish subject has sustained an injury, or has cause of complaint, it is against the British. The first captors are not liable for the conduct of the second; much less their government. The first seizure did not expose to the second; it ought to have secured against it. On general principles, the Danish subject ought to resort to the British captors for his compensation; and the rather, as this would be in pursuance of the principles on which their own courts decide under similar circumstances.
But, admitting the American captor liable: on a lengthy and critical research, I can find no principle of the law of nations, or adjudication, by which the government is bound to answer in the first instance for the unlawful captures of its subjects, or become so from their insolvency or avoidance. Governments will sometimes, from policy, and inder the special circumstances of the case, cause a reparation for injuries done by their subjects to others. But this is not considered to be within the great and obvious principles of national right.
It may be further observed, in reasoning on this case: if the captured vessel or her cargo was condemned as French property, that of itself is conclusive evidence of there having been probable cause for the seizure and detention by the Experiment; if on account of an illegal trade, which was detected by reason of the American detention, yet it is conceived the first captor is answerable for those consequences alone which would have resulted from his conduct, on the supposition of a fair trade and regular papers, and not for those arising from the concealed tortious acts of the complainant.
Under all the circumstances of this case, I am of the opinion that the United States ought not to interfere, unless it be to aid the sufferer, by their weight, in his application to the British government; the condemned property being taken out of their hands. I have the honor, &c., &c.,
LEVI LINCOLN. To the SECRETARY OF STATE. .
SPANISH GRANTS IN MISSISSIPPI.
Grants made by the Spanish government, after the ratification of the treaty by which the land
was ceded to the United States, are void; and though a patent were dated before, unless it
were delivered before, it fails to carry the title. And although prima facie every deed may be presumed to have been delivered on the day of its
date, the presumption may be removed by proof.
WASHINGTON, March 26, 1802.. Sir: In answer to your communications, as contained in the letter of the district attorney of the Mississippi Territory, enclosed by Governor Claiborne, respecting claims to vacant lands in that territory, I can state little more than general principles, and a loose opinion on the described cases.
It does not appear from the letters what were the pleadings in the action, in which evidence of fraud in the dating of a deed was excluded; what was particularly in issue; why it was done; whether it was from the idea that the evidence was not of the proper kind, or the best which the nature of the transaction admitted of; or that the witnesses were consid. ered as incompetent, from being interested in the question or in the case.
Nothing can be clearer than that all grants, made by the Spanish gov: ernment after the ratification of the treaty by which the land was ceded to the United States, are void. A claimant, who had in fact obtained a patent or a title, before that time, under the Spanish, or since under the American government, can alone hold by his grant. There being, no question of a right by mere possession in the way, (and, indeed, such a right to vacant lands can never exist against government,) the only ques. tion is, when was the patent granted ? not when was it dated, or what is its date? The delivery of a deed is a consummating act, by which, and from the time of which, it takes effect and operates. Its delivery may be before or after its date. An ante-date, a subsequent date, or no date, is material only as proof of a delivery; until which, there can be no deed. But, prima facie, every deed shall be intended to be delivered on the day of its date, and to be made fairly and in good faith. The presumptions are, however, controlable by proof. The execution of all deeds must be proved, if their validity is questioned. Any evidence which will show any of their essential parts to be different from what they are presumed to be, and in favor of a third person, must be admissible. Delivery is a matter in the country, and an indispensable requisite, to be established by evidence foreign from the date of the deed, or anything contained in it. There is a difficulty in conceiving how evidence to this point could be excluded by the Supreme Court. The warrants of surveys, petitions; certificates, and plats under the Spanish government, and which are saiu to be in the offices in New Orleans, can be of no use but to show the real
time of a patent's being granted. Where there are interfering grants, and the question is which was first made, or when they were respectively made, and there is no reigstry or record to decide it by, nor any statute mode of ascertaining the matter, the greatest latitude should be given for the admission of evidence, and especially in suppression of fraud.
If it should be necessary to procure evidence in possession of the Spanish government, I should suppose an application by a party interested, or by the governor of the Territory, would be abundantly sufficient for that purpose. A line from the Spanish minister at this place, on the subject, may be useful. This government will not hesitate to aid in the detection of fraud. And none will pretend that a Spanish grant of land, after their right to it ceased, or a subsequent deed with a prior date, can be good against a person claiming under a prior deed or a rightful grant.
Mention is made of an action being brought by one Green against the United States for the recovery of public lands and buildings, and in which, after a verdict for the demandant, a new trial has been granted. k is not perceived how an action could be brought against the United States. It may have been against an individual possessing, or claiming b) possess, under them. As no case is stated, I do not see how govern. ment can be bound by any verdict which may be given in the case, nor cau I give any opinion on the subject.
I am, &c., &c.,
LEVI LINCOLN. To the SECRETARY OF STATE.
PATENTS FOR INVENTIONS.
Washing'TON, May 26, 1802. SIR: The authority given by law to grant patents is unquestionably confined to the citizens of the United States. The privilege is a monopoly in derogation of common right, and, as it is not, ought not to be extended to foreigners. Were it to be, it would be subject to endless abuses, privations, and embarrassments to our citizens. I have no doubt on the question.
LEVI LINCOLN. To Mr. DANIEL BRENT.
RECAPTURE OF A PORTUGUESE BRIG. Where a Portuguese brig had been captured by a French schooner, and thirteen days after
wards recaptured by an American.vessel and taken to St. Kitts, where she was adjudged to be restored on payment of salvage, and the vessel or salvage subsequently demanded of the United States by the French minister as being provided for in the treaty with France, and noi condemned at the signing thereof, it was decided that the treaty did not authorize the French government to make any demands on the United States for property thus recaptured from it, and which they are obliged to restore to the original owners on payment of salvage.
WASHINGTON, May 26, 1802. Sir: The case of the Portuguese brig, which you did me the honor of submitting to my consideration, appears to be this:
On the 29th of July, 1800, she was recaptured by Captain Rogers, in the ship Maryland, having guns and a cargo on board.