to me by the President. It is difficult for one to understand precisely the grounds of the governor's doubts on the supposition of Detroit being considered as without the limits of the Northwestern Territory whilst it remained in the possession of the British.

The resolve of June 20th, 1788, confirms the titles and possessions of the described lands to such inhabitants and settlers thereof, who, on or before the year 1783, had professed themselves citizens of the United States. It also provides that each of the said families then living on the said lands, who should continue to reside within their respective districts three years from the time that an additional allotment of four hundred acres of land should be made for them, as therein is specified, should have a title to the same; otherwise, not.

The act of March 3d, 1791, provided that such of the heads of the said families who were at Vincennes or Illinois in the year 1783, and who had since removed from one of those places to the other, should, notwithstanding, have the four hundred acres donation land, to be entered in either of the said districts, at their election; and the same act further provided, that the heads of the said families who had removed without the limits of the Territory, and occupied the said lands within five years, should also be entitled to the donation lands aforesaid.

This law changes the terms on which a title to the donation lands was to have been acquired, only in reference to such persons as had removed from one of these districts to the other, and to such as had removed without the limits of the Territory. The claims of all other persons are, as they originally were, to be decided by the provisions of the resolve.

It is clear that the Territory intended by the act is the Northwestern Territory, and not that of Vincennes, Illinois, or of the allotted lands; and that the five years mentioned by the act are to be computed from the time of its passing, and not from the time of the land claimants' departure from Vincennes or Illinois, as the governor seems to suppose.

Three descriptions of persons only appear to be entitled to the allotted donation lands-one under the resolve, and two under the act.

Under the resolve, such heads of the aforesaid families, or their heirs, who resided within the particular described district three years after the allotment of the aforesaid lands.

By the act, first, such as had changed their residence from one of the said districts to the other, previous to the passing of the act; and, secondly, such as had removed without the limits of the Territory, and who returned to their respective districts, and occupied within five years, as aforesaid.

and there

Concerning the last description of persons alone is there any question. And if Detroit, as it is conceived to be, is, in the construction of the law, within the said Territory, then those who had moved thither, although they may have returned to Vincennes, &c., within the five years, occupied their lands, cannot be considered within the provisions of the act. The law appears to have made no provision for such persons who had removed to places out of the land districts to places within the Territory, without having secured their title by a three years' residence, as aforesaid. These people were probably presumed, from their situation and means of information, to have been acquainted with the original terms of the donation, and, from their non-residence and non-compliance, to have abandoned their claims. As those who had removed from one of

as

the said districts to the other had thereby evinced their design of removing into that country, they were provided for; and, as those who had gone into distant parts without the Territory might not have got information of the donation seasonably, under the resolve they were provided for, ou condition of their returning to the district within the five years. The persons who went to Detroit were within the principles of neither of these provisions; for, besides associating with those who were forcibly maintaining an adverse possession, hostile to the rights of the United States, they were in a situation in which they might as easily have learned the fact of the passing of the resolve and its provisions, as if they had resided in some other parts of the Territory. There are other reasons for considering Detroit as within the Territory. It is geographically so-so by treaty and right. As such it was considered, claimed, and demanded by the United States; and withheld by the British government, as a means of compelling a compliance with their demands. The terms of the act are descriptive of boundaries, not of the actual exercise of civil authority. The words are, without the limits of the Territory," as expressive of local extent, and not of actual limits of political power or extent of legal jurisdiction. Indeed, in critical and legal strictness, the territory actually occupied and possessed by the British at Detroit was within the outward limits of the Northwestern Territory, as that Territory was possessed by the United States. The possession of the British having been a wrongful one, it is not to be considered as constructively extended beyond the country they actually covered or occupied; whereas the possession of the United States, under the treaty, is to be considered as including all the lands and waters, from which they were not actually excluded, within their treaty limits, and, of course, as extending to the line northwardly of Detroit, so as to include it.

But, admitting Detroit to have been out of the limits of the Territory, within the meaning of the act, yet, if those persons who removed thither did not return and occupy at Vincennes within the five years from the passing of the act, they cannot be entitled to any benefit under it.

I am, &c., &c.,

To the SECRETARY OF STATE.

LEVI LINCOLN.

GOVERNMENT LIABILITY.

A receiver of captured property, to deliver to the true owners as they should be ascertained by Congress, and who converted the property and had the means of indemnifying himself, has no claim upon the United States for the payment of a judgment obtained against him, unless it expressly appear that such property came into his hands as agent for the United States. (See opinion of January 21, 1802, ante.)

WASHINGTON, March 18, 1803.

SIR: I re-enclose Mr. Bingham's letters respecting his action with Cabot and others, as they contain little more than a repetition of former statements. The following observations are similar, it is presumed, to what I had the honor of making in a former letter, of which I preserved no copy

Mr. Bingham appears to consider his demand against the United States

as warranted by law. He certainly ought to have the fair and intended benefit of any resolve which may have passed in his favor; but not of any erroneous construction of such a resolve, even if such a one has ever been made beneficial to him.

Uncontested facts, and the repeated decisions of courts competent to the purpose, show that Bingham, in the transactions which gave rise to the actions he has suffered from, could not have acted as agent, or at least as an authorized agent, of the United States; for if he had so acted, he must have prevailed in his suits.

Bonille's order, on which much dependence has been placed, was that the cargo should be sold, and that its net proceeds should remain in the hands of B., to be delivered to whomsoever, according to the decision of Congress, these proceeds might belong. This order is B.'s first and only authority for meddling with the property in question; and it also proves for whom and to what purpose he could, in any sense of the word, be considered as an agent concerning it. The object of his agency in receiving is by this order expressly pointed out, namely, to keep and deliver over the proceeds received, to those to whom, according to the decision of Congress, they might belong. Nothing can be plainer than B.'s duty; and nothing more safe and indemnifying in itself, had it been pursued.

On February 2, 1779, he informs Congress of the capture, and adds that Bonille had insisted that the cargo should be disposed of; and the island being in great want of this necessary article, (flour,) that the sales would be more advantageous to the concerned there than in Europe, and would make the misfortune fall less heavy on the concerned. By this letter it appears that the flour was at a good market, the sales advantageous, and that the net proceeds received by B. would at all times be sufficient to meet the equitable and legal demands of those to whom they might belong, and, being delivered to them, to indemnify and save harmless the agent who received them.

On the 30th of November, 1779, in consequence of a letter from Mr. Bingham, against whom suits were then pending in Massachusetts, Congress requested the legislature of that State to consider whether it would not be advisable to stop those suits until the principal question (prize or no prize) should be determined; after which, said Congress, it would be in Bingham's power to discharge himself, by delivering to the true owners the property placed in his hands for their use.

At this time it is clear that Congress did not mean to change the terms on which B. received the captured property, to become responsible themselves, to indemnify B., or to aid him any further than to find out who those true owners were, to whom he could with safety deliver what had been placed in his hands for that purpose. The special principles of his agency, of law, of equity, and the most obvious principles of common justice, would require no more; because, the owners being known, he had already been furnished with the means of indemnifying himself; and then holding them, could completely do it by delivering over the property which had been placed and continued in his hands for that very purpose, and on the very event of the owners being known.

It is to be repeated that Bonille's order to B. was for him to deliver the proceeds of the cargo to whomsoever, according to the decision of Congress, they might belong; and that they, in their above-mentioned address

to the legislature of Massachusetts, expressly mention the decision of a prize court as the decision on which B. was to discharge himself by delivering over the property. It is to be remembered that this expression of the consideration of Congress on the subject was nine months after B. had informed them by letter that he should place the proceeds of the flour to the credit of their commercial committee, and proves the refusal of Congress to receive the proposed credit, and to be made accountable to the owners for the proceeds of their cargo. This transaction of Congress, incorrectly stated and erroneously construed, is relied on in support of the demand, as connected with the proposed credits. But a different infer ence ought to be drawn. Considering B. as receiving the property either from Bonille or from Congress, as their agent, he could not have a right to elect the purposes to which he would apply it, but they from whom he had received it; and from first to the last, on every occasion, have they determined and elected to consider the property in B.'s hands to be deliv ered over to the true owners when they should be known.

The legislature of Massachusetts not thinking it proper to stop the suits, Bingham, on the 6th of June, 1780, petitioned again on the subject; a principal object of which was to exculpate himself and Bouille from blame, and to obtain a release of property attached, in his correspondent's hands; stating that neither the captors nor the captured could eventually suffer by what had been done. Congress thereupon resolved that Bonille, in ordering the cargo of the brig Hope to be sold, and the money to be de posited in the hands of B. TILL the legality of the capture could be proved, showed the strictest attention to the rights of the claimants, and the highest respect for the opinion of Congress; and that they would defray all the expenses which B. should be put to by reason of the suits then pending, or which might thereafter be brought against him, in the State of Massa chusetts, on account of the brig Hope or her cargo. Bingham being the agent to Congress for other purposes, Bonille the officer of an ally, and the captors our citizens, Congress, as above, absolve from censure and approbate the conduct of their agent. But what conduct? The reception of property to be by him delivered over to the right owners whenever they should be ascertained "by a judgment of the principal question." These are the words. Until this is done, B. could not be safe in delivering the property. He must have delivered it to the right persons at his peril. If * he had delivered it to the wrong, that would not have discharged him; he would, notwithstanding, have been responsible to the judgment owners the moment they were ascertained. B. could with safety, and ought in duty, either as agent or a mere merchant, to have delivered to them their property. They sought it-they demanded it. The event had taken place on which he undertook to do it-on which Bonille and Congress expected he would have done it, and had impliedly directed him to do it. This judgment would have indemnified him in all places, in all times, against all persons; it was binding on all the world.

As B. would not have been safe in delivering the proceeds of the cargo t to the claimants until it was ascertained, by judgment of law, that they were entitled to receive them, it was perfectly reasonable that the investi gation should be at the expense of the United States, under the special circumstances of the case, and that their interference should in no way prejudice the plaintiffs in the pending actions. They had attached, in the hands of Mr. Russell, as the agent of B., his property, which, in the

event of a judgment against B. in the specified actions only, and which it was impossible to obtain previous to a judgment, was liable for its satisfaction. B. complained of having his property embarrassed by an attach. ment; and as he could not release it by delivering over the property claimed until the justice of the claim was ascertained, Congress, to procure its release, pledged themselves to the plaintiffs to pay all such sums of money, with costs of suit, as might have been recovered in either or both of the abovementioned actions, and in no other; for on these alone was B.'s property attached. They therefore directed their navy board to give security to the plaintiffs, (not to B.,) for the payment of every judg. ment which they might recover in these particular actions, and to cause the defendant's attorneys to be instructed in the defence of the same.

These are the resolves and measures on which Mr. B. principally places. the legality of his demand. Their only objects were, to discharge B.'s property from a complained-of embarrassment, to direct his attorneys in reference to the two then depending suits, and to secure the then plaintiffs by bonds, as an equivalent for their attachment. By these transactions, no new rights were created-no new obligations, impliedly or expressly, were created against the United States, in favor of Bingham. The words relied on are, Congress will defray all the expenses that Mr. B. may be put to by reason of the suits now pending, or which may hereafter be brought against him, in the State of Massachusetts, on account of the brig Hope and her cargo. The intention of Congress, collected either from the words used, from the provisions connected, from the subjectmatter, from the effects and consequences, or from the reason and spirit of the provisions and the nature of the transaction, appear to me to be very clear. The terms expenses by reason of a suit are not usually applied both to the moneys recovered as debts or damages, and to the moneys expended in carrying on a suit, but only to the latter. A promise to defray all the expenses which the plaintiffs might be put to by reason of those suits, expressed in the same terms, would have been properly expressed, and yet necessarily confined to the mere cost and expense. The phrase Expenses of a suit is, obviously, both in technical and common parlance, expressive of the costs of court and the out-door expenses, as distinct from the debt or damages. But, if the meaning of the resolve, from the words of it, were uncertain, a positive claim could not be supported from a doubtful construction.

If Congress meant to defray (that is, pay) the damages or debt, and defray the expenses, why did they confine the provision to actions in Massachusetts? The reasons for paying a judgment debt, measured in its amount by the value of the flour, being the same wherever recovered, would apply equally elsewhere. If Congress intended to have paid the damages which might have been recovered in any action, there could have been no reason for expressly limiting the provision to the place of their recovery-to Massachusetts. Not so in respect to the cost and expenses, or the damages, in the two preceding actions.

The suits could be brought only where one of the parties lived. B. being a stranger in Massachusetts, not personally attending; his responsi bility not generally known, from his distance; the trouble and expense of defending suits greatly increased; and the little credits and advancements necessary, for the continually accruing expenses in the defence of actions, to be made; and his property.being held only on the two depending