district; and, at the end of which period, every such resident shall obtain a title to the reserved lot; and all lots not thus conveyed to residents shall revert to the United States. A provision for a deed or patents seems to be implied by the force of the above-recited terms; and as the title depended on a three years' residence, a matter in the country, there was a necessity of a decision on that fact, and of some instrument containing the proof of it.

The 2d section of the act of the 3d of March recognises and extends the above grant, and directs the Governor to cause it to be laid out, &c.; and also to cause to be laid off and confirmed to persons who had had lands allotted to them according to the laws and usages, &c. This act, directing the thing to be done, does not point out the mode of confirming; nor does it alter the mode of giving the title to the 400 acres, as provided for by the said resolve: of course, it would be left to pursue that mode.

I am doubtful whether the grant of small tracts of land to individuals, for personal accommodation on our frontiers, either as a compensation for past sufferings, dangers, or services, or as inducements for their continuing in the double capacity, as it were, of military defenders and agricultural subduers of the soil on the frontiers, is within the meaning and policy of the stamp act, requiring four dollars for every grant or patent of land under the seal and authority of the United States, with the exception of lands granted for military services.

As the several Governors and others have entertained different opinions, and gone into different practices touching the subject-matter of this letter, I have been induced to be thus particular, and to recite the laws and the facts on which I have formed my opinions, that, if they are incorrect, it may appear in which way the error took place.

With great respect, &c., &c.,

LEVI LINCOLN, Attorney General United States.

To the SECRETARY OF STATE.

WASHINGTON, January 21, 1802.

SIR: I yesterday received yours, covering a letter dated the 16th instant, from Mr. Bingham's agent, respecting the judgment lately recovered by Cabot, and also against him, for the proceeds of the cargo of the brig Hope. The agent had previously sent me a similar letter, with a printed statement of the case. On the last trial, which was the review of a former one, the plaintiff's recovered $34,630 25, which is $2,860 less than was recovered on the former trial. I expected, before this time, to have learned, as matter of fact, the principles on which the question of damages, or rather the quantum, was ascertained. It is obvious, however, from the nature of the case, the state of the pleadings, and the circumstances attending the actions, that the jury were instructed by the court to make, and that they actually made, the proceeds of the cargo received by Mr. Bingham, with the interest thereof, the measure of the damages assessed against him; making, however, reasonable deductions for expenses and disbursements. The action was in form an equitable one, it being for money had and received. By an agreement of all the parties concerned, the special matters were permitted to be given in evidence under the gen

eral issue; none were excluded; the parties were at large in the trial, on the common principles of justice and equity; and nothing more can be presumed to have been recovered than the plaintiffs, in fairness and good conscience, were entitled to. I am satisfied the United States ought not to be any farther concerned in lawsuits on this subject; and before they pay the $34,630 25 which is now demanded as an indemnification to Mr. Bingham, they ought carefully and fairly to examine the grounds and the principles on which the demand is placed. The representations which Mr. Bingham has uniformly made of the proceeds of the cargo coming into his hands regularly, as the agent of the United States, and of its being neutral property, not turning out eventually to be correct, have betrayed our Government already into much trouble and expense. Had he possessed the property regularly, as agent, Government certainly ought to have indemnified him from the cost of defending any suit which might have been brought against him. Nothing could ever have been recovered against him. The proof of his agency in that particular would have barred the action. The judgment for damages is a legal proof that he had not sufficient authority from the United States to take the property as their agent, and, of course, that they were not in strictness bound to indemnify. It is understood, also, that the courts which have repeatedly tried the cause, and the counsel who have been concerned in the management of it, have always been of the opinion that there were, originally, on the face of the papers, and the aspect of the transactions, strong reasons to doubt the neutrality of the cargo-or at least such as were sufficient to induce caution. If there has been reasonable circumspection by Mr. Bingham in his disbursements and in furnishing the proper evidence, and if he has been indemnified from the cost of defending such suits as it has been proper for him to defend against, it is difficult to perceive on what principles he can claim an exemption from satisfying the judgment which has been recovered against him; or how he can demand of Government their aid, unless they have expressly promised it.

Mr. Bingham, in his letter of 2d of February, 1779, expressly states the cargo of the brig Hope to be neutral property; that the cargo, being flour, was much wanted in the island; that he should sell it; and that the sales would be more advantageous there, than in Europe, to the concerned. The recited facts disclose the view in which the transaction was exhibited to Government, at an early period; and also raise a strong presumption that the cargo, being 1,000 barrels of flour, sold well, at the market price, when it was in great demand, and of course without a loss. It is understood that the proceeds of the sales, on the trial, were ascertained by the testimony of a Mr. Lowell, a reputable gentleman of the law, who swore that Mr. Bingham acknowledged to him, in conversation on the subject, that he sold the flour at 144 livres per barrel. There was other evidence to prove that the flour was, in fact, or might have been, sold for about this price by Mr. Bingham. Let it be remarked, if this was not the market price, or the true price, (by which he ought to be bound, as he has long been in the possession of Mr. Lowell's evidence, and knew that it was used, and relied on, in the first trial,) he would have procured evidence to have controled it.

The resolves rested on by Mr. Bingham passed June 20, 1800, [1780,] on a memorial of his, representing the attachment of his property by two suits which were then pending. By the first of these resolves, Congress binds

the Government to defray all the expenses which Mr. Bingham might be put to, by reason of the suits then pending, or which might thereafter be brought against him in the State of Massachusetts, on account of the brig Hope, or her cargo. By the second, Congress pledged themselves to pay all such sums of money, with costs of suit, as might have been recovered against the said Bingham, in either or both of the said actions. Bingham's property was then held from him, under an attachment, by these suits. It was not safe to pay the proceeds of the sales of the flour to the plaintiffs in those actions, or to any other claimants, until it had been determined by law that they were entitled to it. It was hard, in the mean time, if Mr. Bingham had acted fairly as the agent of the United States, that the expense of determining to whom property, which had been placed in his hands in the course of this agency, ought to be delivered, should be borne by him. And until this determination was had, it was injurious to have the property held under the attachments. The only object of the second. resolve is, to discharge this property from the attachment; and as this could not be done but by giving security equal to the property attached, Congress ordered their navy board to give such security. As Bingham recovered in these actions, the resolve has had its effect; nothing further can be demanded under it. The expenses which Congress bound themselves to defray by the first resolve, which might be occasioned by any suits afterwards brought, must be considered to be similar to those which they were to pay arising from the then depending suits; these expenses could not be considered as extending to the cost and damages, because they are provided for in the second resolve.

The reason and equity of the case can never extend the term expenses to mean any thing further than the money expended in and about a suit, other than what may be necessary to satisfy a judgment for damages; which judgment for damages could never have been given against Bingham, but on the idea of his possessing himself of the proceeds of the cargo out of the regular course of his agency. And in no event, he being indemnified for these expenses, can he be injured. The retaining in his own hands the proceeds of the sales of the flour, and these actual proceeds, with reasonable deductions for expenses, being the measure of the damages recovered against him, he has in his own hands what must be considered as sufficient to satisfy these damages, and of course is completely indemnified. I am therefore inclined to think that Government are not bound, and that they ought not to pay the judgment which has been recovered against Bingham; and that they ought not to be at any further expense on this subject, excepting to defray the expense already incurred as above explained. It is known a different opinion has been given on this subject, and this is therefore given with great deference. I have the honor, &c., &c.,

To the SECRETARY OF STATE.

LEVI LINCOLN.

WASHINGTON, February 2, 1802.

SIR: After the utmost attention which I have been able to pay to the questions respecting the Northwestern Territory, which you did me the honor of submitting to my consideration, there is a difficulty in giving a

decisive answer. I can find no grounds or principles for a very confident decision in, or out of, the ordinance for the establishment of that Government. Nothing can be collected to aid the inquiry from the acts by which similar Governments in other Territories have been established, or from the journals of the proceedings of the Assembly and the Governor of this Territory, although some of these very questions have been the subjects of zealous debate.

The Territory is as yet considered to be under what is called its temporary Government, by the ordinance. That expressly provides that all magistrates, and other civil officers, shall, during the continuance of the temporary Government, be appointed by the Governor, unless otherwise. therein directed. It also ordained that there should be a court appointed, to consist of three judges, who shåll have a common-law jurisdiction, and reside in the district; and expressly that Congress should appoint the Governor, the secretary, and all military general officers. In the twelfth paragraph of the ordinance, it is said the Governor, judges, legislative council, secretary, and such other officers as Congress shall appoint in the district, shall take an oath, &c. In this direction for taking the oath of office, there is a strong implication of the right of Congress, or rather of the President, to appoint these three judges; and I am informed this has been the practice. Independent of this practice, upon the mere construction of the ordinance, I should have hesitated in deciding against the right of the Governor to have made even these appointments. The authority of making appointments is expressly given to the Governor in all cases in which it is not otherwise directed, and express positive provisions are not usually abridged by implications. As this implication does not necessarily extend beyond the three judges before named, I am inclined to think the Governor is justified by the ordinance in his appointment of all other judges and officers.

It is provided by the seventh paragraph of the ordinance, that the Governor, 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 regulated and defined by the Assembly. After the formation of the General Assembly, they are to determine what powers and duties are necessary to be exercised in existing counties and townships, and to define and regulate the same, for the preservation of peace and good order: this seems to involve the necessity of their determining what description of magistrates 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 officers 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 shall make proper divisions, and from time to time, as circumstances 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 ordinance.

The laying out of counties and towns are usually considered as legislative acts, and, in the present instances, must be considered as appertaining to the Legislature, unless, by a proper construction of the ordinance, 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 execution 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 paragraph 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 out 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 resigned 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 illegally. 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 any thing I have been able to learn respecting the matter.

I have the honor, &c., &c.,

To the PRESIDent of the UNITED STATES.

LEVI LINCOLN.

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