OPINIONS

OF

LEVI LINCOLN, OF MASSACHUSETTS:

APPOINTED MARCH 5, 1801.

CONFIRMATION OF CERTAIN GRANTS IN INDIANA.

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 justified 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 said 3d of March.

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 cer tain 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 cul tivated 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 description 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 above mentioned 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 justified in making a discrimination between the persons still holding their original grants, and those who have had such grauts 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 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 agricultu ral 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.

GOVERNMENT LIABILITY.

The government is not bound to satisfy a judgment for damages recovered against its agent, when it is not made to appear that the property for which the suit was brought came into his hands as such agent, and where the avails of the property were retained by him and were sufficient to indemnify.

Two resolves of Congress commented upon and explained.

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 general 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 further 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 pre

sumption 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 hoth 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 com