inspect any vessel of war in the immediate service of the Government of a foreign nation until further order; declaring, for a reason, that the propriety of inspecting such a vessel was not without question in reference to the usage of nations.

In the summer of 1794, under the authority of the collector of New York, some of the officers of the custom-house, as the affair was represented by the French minister to the American Government, entered on board the ship Favorite, a national ship of war of France, and seized arms and ammunition on board of her belonging to the French republic, suspected to be intended for exportation, contrary to law, and insulted the French flag in an outrageous manner. Mr. Fauchet complained of this proceeding as an infraction of the law of nations, which nothing could justify, and demanded justice of the authors. The President answered, that he highly disapproved that a public vessel of war, belonging to a foreign nation, should be searched by officers of the customs upon a suspicion of illicit commerce; that the ground of suspicion should have been represented to the consul of that nation, or the commander of the vessel; and that general instruction would be given to pursue this course in future, with a view that, if it should be ineffectual, the Government of the United States may adopt those measures which the necessity of the case and their rights may require; that the prosecution should be discontinued, and the property restored. And the President hoped this reparation of what was passed, and the precaution against the future, would induce the minister to approve the decision, which, from a sense of justice, would lead him to waive any further measures, and that an insult to the French flag would not be permitted with impunity; but, in this case, the alleged circumstances of insult did not with sufficient certainty appear.

Prior to this a short time, the British minister had complained of a violation of the laws of nations, in the case of the Nautilus, by certain persons authorized by the Legislature of Rhode Island. He asserted that, by the usage of nations, it was not lawful to search a foreign ship of war in the harbors of the United States. The position was not admitted on the part of the United States, but in a manner denied; but, from the particular circumstances of the case, it was unnecessary to decide finally upon it.

Whatever conclusions may be drawn from these transactions in favor of a foreign ship of war being exempt from the inspection or search of the custom-house officers of this country, they furnish but a feeble argument in favor of the exemption of such a ship from all judicial process, civil and criminal. There is a manifest difference between the two cases. The President, possessing the supreme executive power, may regulate, control, and direct all inferior executive officers in the performance of their offices; but may not interpose his power to the obstruction of a minister of justice in the ordinary course of proceeding. The former is properly cognizable in the executive, and the latter in the judiciary department of Government.

But whatever doubts might be otherwise entertained on the present question, they are dispelled by the sense of Congress as expressed in the 7th section of the act passed 5th June, 1794, entitled "An act in addition to the act for the punishment of certain crimes against the United States." It enacts, "that, in every case in which any process, issuing out of any court of the United States, shall be disobeyed or resisted by any person or persons having the custody of any vessel of war, cruiser, or other armed vessel of ang foreign prince or state, or of the subjects or

citizens of such prince or state, it shall be lawful for the President of the United States to employ such part of the land and naval force of the United States, or of the militia thereof, as shall be judged necessary," &c. -Laws of the United States, vol. 3, p. 92.

Here the lawfulness of serving judicial process upon a person on board a foreign ship of war within the United States, is undeniably acknowledged by necessary and unavoidable implication. With this view of the subject, the Attorney General is humbly of opinion that it is lawful to serve civil or criminal process upon a person on board a British ship of war lying in the harbor of New York, adjacent to a wharf, and within the territory of the State of New York. If this be lawful, the conduct of Captain Jones is in no small degree reprehensible, who is represented to have assaulted the ministerial officer of justice as he was leaving the ship, by attempting to remove the plank and throw him into the water.

It is submitted to the President whether it would not be expedient for a law to be passed, regulating judicial proceedings relative to foreign ships of war in the American ports; and particularly exempting them in future from the service of civil process on account of debt or contract. All which is most respectfully submitted by

To the PRESIDENT OF THE UNITED STATES.

CHARLES LEE,
Attorney General.

RESOLUTION respecting the copper mines on the south side of Lake Superior. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be authorized to employ an agent, who shall be instructed to collect all material information relative to the copper-mines on the south side of Lake Superior; and to ascertain whether the Indian title to such lands as might be required for the use of the United States, in case they should deem it expedient to work the said mines, be yet subsisting, and, if so, the terms on which the same can be extinguished; and that the said agent be instructed to make report to the President in such time as the information he may collect may be laid before Congress at their next session. THEODORE SEDGWICK, Speaker of the House of Representatives.

TH. JEFFERSON,

Vice President of the U. S. and President of the Senate.

Approved April 16, 1800:

JOHN ADAMS, President of the United States.

MAY 3, 1800.

The Attorney General respectfully reports to the Secretary of State his opinion upon the question whether a member of the Congress which passed, during the present session, the resolution respecting the copper, mines on the south side of Lake Superior,-may be constitutionally appointed by the President the agent for executing the same,-that a member of the present Congress may not be appointed at this time to be that agent. To the SECRETARY OF STATE.

OPINIONS

OF

LEVI LINCOLN, OF MASSACHUSETTS,

APPOINTED MARCH 5, 1801.

WASHINGTON, December 29, 1801. SIR: In answer to your note enclosing a letter from the Governor of the Indiana Territory, permit me to state opinions respecting the subject, which are the result of attention and consideration. The provisions of the act of the 3d of March, 1791, (which is very incorrect, and out of which the Governor's questions arise) have a reference to matters which were objects of the resolve of Congress of June 20th, 1788. This resolve confirms to the ancient settlers of the Territory, who had professed themselves citizens of the United States, the land which they possessed on or previous to 1783, and which had been allotted to them according to the laws and usages of the government under which they had respectively settled. The resolve also provides for the donation of an additional 400 acres of land to each family which was then (on the 20th of June, 1788) living at certain villages within the Territory; but they were not to alienate, or to have a title, until there had been a residence of at least three years within the district, subsequent to the allotment of the same land. Here is described a second set of persons who were to hold land under this resolve, namely, those who lived at certain villages on June 20th, 1788. The 1st section of the law of the 3d of March, 1791, gives 400 acres of land to each person who, in 1783, was a head of a family, either at Vincennes or at Illinois, and who, after 1783, moved from one of those. places to the other; and the Government is directed to cause such land to be laid out accordingly. This third set of persons is described by the place they lived at in 1783 as heads of families, and by the place they afterwards moved to previous to the 3d of March, 1791.

The 2d section of the law secures to such heads of families who, in 1783, lived either at Vincennes or Illinois, and who, after 1783, removed without the limits of the Territory, the donation of 400 acres of land, made by the resolve of Congress of the 20th of June, 1788. By mistake, this resolve of Congress is referred to as of the 29th of August. The Governor, on application, is directed to cause such land to be laid out to such heads of families and their heirs; and also to cause to be laid off and confirmed to such persons the several tracts of land which they may have possessed, and which, before 1783, may have been allotted to them according to the laws and usages of the government under which they respectively settled. The first part of this section of the law extends the benefit of the resolve (which confirmed the donation of the 400 acres to persons living at certain villages in 1788) to such persons as lived there in 1783, and who afterwards removed without the Territory, and makes a fourth description of characters.

The fifth and last description of persons, by the 4th section of the law, are those who had on the 1st of March, 1771, actually improved or cultivated land either at Vincennes or at Illinois, under a supposed grant of the same by any commandant or court claiming authority to make such grant. To which persons who made the improvement, or to their heirs, the Governor is empowered to confirm such lands, or such part of them as he may think to be proper, not exceeding to any one person 400 acres. The four first mentioned classes of persons who are entitled to grants, confirmations, or the laying off of lands in the Territory, are clearly designated by marked descriptions in the law under which they claim.

The 4th section of the law of the 3d of March contemplates the creating and vesting a title to land in a description of persons who had no previous title to the same land; and they are those persons only, their heirs or assigns, who had, previous to the said 3d day of March, actually improved or cultivated under some supposed grant by some commandant or court claiming authority to make the same, but who in fact had no such authority. Most clearly none but such who had actually made improvements previous to the 3d of March aforesaid, under authorized grants as aforesaid, and their heirs and assigns, can claim by the operation of this section. of the law. Those who claim a benefit of this law must bring themselves within the provisions of it. If they have other or independent titles, they are not affected by it. From a careful inspection of the deed of cession by the State of Virginia to the United States, and of the terms on which they accepted of the same, nothing can be found which will in any degree enlarge the operation of the abovementioned law, or in any way affect it. The clause in the act of cession declaring "that all the inhabitants of this country shall be confirmed in their titles and possessions,” and the terms, "according to the laws and usages of the government under which they had respectively settled," must, from comparing one part of the law and deed with the other, from the subject-matter, the nature of the transaction, and on obvious legal principle, be understood to mean legal titles and possessions, and authorized usages.

It is therefore clear that the Governor cannot be justified in confirming any of the unauthorized grants, unless actual improvements were made under them previous to the 3d of March, 1791; nor can he by law be jus tified in making a discrimination between the persons still holding their original grants, and those who have had such grants confirmed by former Governors, or who have purchased under such confirmation, and made improvements, unless such improvements were made previous to the 3d of March. The Governor, in making the confirmation, exceeding his authority, his act was a nullity, and could not create a right, or alter the explicit provisions of law.

In respect to the granting patents of the land in question, I am inclined to think they will be unnecessary for those persons claiming under the first section of the act of the 3d of March. The right to 400 acres is created by the mere operation of the act itself; and when the Governor has caused it to be laid out in pursuance of the same act, the title will be complete. Deeds or patents may be necessary for the residue of the land. The resolve of June, 1788, making the donation of 400 acres, provides that no person obtaining the possession thereof under the description shall have power to alienate, until he or she, or his or her heirs, shall have resided at least three years, from the time of such distribution, within that