actions-the reasons for the legislature's providing for the damages, which might have been recovered, applied only to the pending actions; and for the cost and expenses, to actions only prosecuted in Massachusetts; as not any of the stated causes could have operated in actions against B., prosecuted in Philadelphia.

if

On these ideas, services performed and moneys expended in and about the suits in Massachusetts, were by the resolve secured, and directly, on the credit of the United States. These creditors alone, (not B.,) in virtue of the resolve, could have any claims on government. The expenses were B.'s; but government engaged to the creditors, for their greater se. curity, to pay them. On the same ideas, Congress, in their letter to the legislature of Massachusetts of the 30th November, above referred to, enclosing sundry papers relative to the pending actions, after stating that Mr. Bingham, on a decision of the principal question, could discharge himself by delivering to the true owners the property placed in his hands for their use, request that legislature, if they should not think it proper to stop the actions, to furnish B.'s agent with the papers then enclosed. This demonstrates that Congress considered B., and the property placed in his hands, as chargeable with the damages which might be recovered, after they had subjected themselves, in some degree, to the expenses the suits.

In June, 1797, there was a decision on the principal question in the circuit court, in favor of the owners of the privateers, the plaintiffs in the late action. This sentence, regularly rendered on a libel, (the proper process,) and by a competent court, ascertained the true owners of the property, devolved the obligation on Bingham to deliver it, and completely discharged the United States from any after care or expense concerning the demand in question. The United States have, however, been at many expenses since.

It appears the recovery finally against B. was on an action for money had and received, tried on the most liberal principles, on the general issue, with a liberty of giving the special matters in evidence; that the dis bursements and all expenses were deducted from the amount of the sales; and the net proceeds of the flour, with a calculation of interest, (short of the real interest,) on the amount of these proceeds, were made the measure of damages. Surely B. cannot complain of actual injury, it being held to pay the amount of this judgment, after having had the use of the money for so long a time.

To me it appears, from perusing Mr. B.'s statement of his own case, that he has mistaken both facts and principles, in some very material points; and that, at times, Congress and their officers have also been impressed with mistaken views of the subject; but, nevertheless, they have not rendered the government responsible for any part of the judgment in question: that the United States were not held, in virtue of the abovementioned resolve, to have defrayed even the expenses of any proceedings on account of the captured flour, after it was adjudged to be lawful prize to the brig Hope, in the circuit court, as aforesaid: that, as the reason of their interference, so their provision by resolution, stopped here; and to have extended it further, would have been more than justice, policy, or the subject-matter, or even Mr. Bingham himself, in his first communications, seemed to require. What possible cause can be assigned why Congress should have assumed on themselves the payment for property

which Mr. Bingham had received, to be delivered over to the right owners, and out of which he had made, and would probably make, until it should be paid over, interest profits, if not mercantile profits? The consequence of such an arrangement would have been, for the United States to have taken the money from B. as his agents, and paid it over to his creditors' creditors, or as debtors themselves, on account of property which B. had received, been benefited by, and chosen to withhold from the true owners; paid their demands, as the duty of government, without an indemnity; or, like common factors, resorted to B. for their reimbursements. On ideas the reverse of these have been the measures of government. An object, avowed in the said letter of the 30th of November, is, to prevent injustice to individuals on the one hand, and embarrassments to an agent on the other, until he could, by a judgment on the principal question, disembar rass himself, by delivering to the true owners the property placed in his hands for their use. This proves Congress considered the matter, in reference to the property itself, as between individual claimants and B.; and that they did not mean so to interfere as to render themselves responsible for that, but only to secure justice to these individuals, by suffering the law to take its course, and to release B. from embarrassments incident to the then pending suits. On the same principles, the resolve afterwards makes provision for the release of B.'s property when attached, and for defraying the expenses occasioned by the actions; and on the same principles, the auditor of accounts refused to receive or have anything to do with the property in question, or any part of it, by admitting a credit, in the settlement of B.'s account, which he wished to impose on the United States.

as

As to the price of the flour, in addition to Mr. Lowell's testimony, I understand there was the testimony of another witness. Besides, it is admited the flour was good, sold at a market where it was in demand, and of course high. If the price in evidence was not the market price at the time of the sale, (which, without evidence of the actual price, would have been the presumed one,) Mr. B., as he had been possessed of that charge and evidence for years before the final trial of his cause, would, he certainly might have done, have procured evidence of what was the market price. That Mr. B. suffered, in fact, a single cent by a summons in a process of a foreign attachment being served on Mr. Russell, does not appear by any document in the case. dered the trustee liable, until after a principal judgment could have been cbtained against B., and a second and subsequent judgment, on a writ of scire facias, rendered against this trustee; which, from the nature of the processes, would, if the actions had been sustained, required years to have accomplished, and have created no necessity of the money's lying dead a single week in the trustee's hands. It does not appear by any paper or evidence in the case that any drafts on Russell were dishonored on ac count of this attachment, or that B.'s credit or business was thereby in

This would have in no event ren.

the least degree impaired or deranged; and, considering the characters of the gentlemen, the probability is they were not. This law process had only rendered Russell bail or security for his friend and correspondent, case of a judgment against him. Surely Mr. Russell would have con

sented to this, without insisting on an actual deposite or pledge of money, interest. If so, B. could have sustained no injury from the attachments; and also the use of this money, without accounting to his friend for its

and if he did, the loss of interest or profits, for the short time he was subject to them, ought in equity to be balanced by a similar loss sustained by the true owners of that property, by whose loss he has been benefited. The loss of interest on the run of the execution, the discount these owners would have made to have received satisfaction of the judgment in money on its being rendered, with some advantages in the calculation of the interest by the jury in fixing the damages, are perhaps more than equivalent to the injuries complained of by B.

While on this question of damages, it occurs to me that I dwelt on it in my former letter on Bingham's claim; it is therefore unnecessary to trouble you with any further remarks concerning it. Upon the whole, considering the facts disclosed by Mr. Bingham's written statement, supplemented by his subsequent letters; or the evidence produced on the trial of the cause, the decisions and proceedings of the several courts, the measures of the general government, or the whole combined,-I am constrained to repeat, that I can find neither law, justice, nor equity, in the demand made against the United States.

I have the honor, &c.,

To the SECRETARY OF STATE.

LEVI LINCOLN.

CLAIMS UNDER TREATY WITH FRANCE.

Demands for freight, where individuals have transported articles for the French govern ment, or for its citizens, as they are within no positive provision of the convention, are out of the question; the United States being in no event and on no principles bound to protect them.

WASHINGTON, November 15, 1803.

SIR: In despair of being able to form a decided opinion, or one perfectly satisfactory to myself, from the facts or principles of which I am possessed, respecting the submitted question, I can only state the course and result of certain reflections on the subject. The several articles of the convention, obviously designed to designate the same demands as those which the United States are held to satisfy, being indefinite in themselves, expressed in varied terms and not according with the expressed intent of preceding articles and preceding treaties to which they refer, occasion the perplexity. From the evident marks of hurry impressed, in some instances, on the face of our late negotiations with France, it is not to be presumed that the negotiators attached precise ideas to all the principal terms which they made use of. It is clear that the same terms, as used in different articles, will not admit of the same construction.

For the purpose of ascertaining their meaning, it seems necessary to consider, as parts of one entire instrument, the treaty of cession and the two conventions; as they refer to, and are dependent on, each other, and were made at the same time, in pursuance of one entire agreement, however independent they may be of each other in their execution.

The 2d article of our treaty with France, of September 30, 1800, (which the late convention refers to as containing some of the objects to be provided for at present,) mentions indemnities, generally, as due or claimed, and which were to be the subject of a future adjustment.

The 5th article of the same treaty provides for the payment of debts contracted by the French government with the individual citizens of the United States, saving indemnities claimed on account of captures or con

fiscations.

The makers of the treaty of 1800 comprised, in the terms "debts contracted" and "indemnities due or claimed," all the demands which they then meant to provide for, or to reserve for a future adjustment. Had that treaty been ratified in all its articles, and the payments of debts been made as provided for in the 5th, and as therein and in the 2d they are distinguished from indemnities, no after demands but those comprised under the term indemnities could have been made on the French government. Considering these articles connectedly, and in connexion with other parts of this treaty, there can be but little doubt of its having been the intention of their framers to include all just demands, as well for freight as for other causes, within the general description of the debts mentioned in the 5th, and the indemnities excepted therefrom and reserved in the 2d article. No reason can be assigned why a claim on account of freight should not be considered as within the terms or the meaning of one or the other of these articles: within the first, when founded on any contract; and within the last, if resulting from capture, or any transaction without an agreement or the consent of the claimant.

The 9th article of the treaty of the 30th of April, 1803, expressly declares it to be the object of the convention of the same date "to provide for the payment of debts due to the citizens of the United States by the French government, prior to the 30th of September, 1800." The 1st article of the convention securing a payment to the French government, mentions another convention, also, which shall fix the sum "for the thent of the debts due by France to the citizens of the United States." To provide for the payment of these debts, is the avowed object of the last convention. In the 1st section, it was said that it is "to secure the SR due by France to the citizens of the United States," in compliance

1

pay

with the 2d and 5th articles of the treaty of the 30th of September, 1800, that the respective ministers had been appointed, who had agreed to the

following article:

to the mode of

payment.

That the debts due by France to citizens of the United States before September 30, 1800, shall be paid according to certain regulations. This last term may possibly refer to the qualifications of the debts, as well as "The sum due" and "the debts due by France," as expressed in the abovementioned article and section, are to be paid in compliance with the 2 and 5th articles of the treaty of 1800; that is, so paid as would be in compliance with them, were this 2d article in force, or in compliance with the principles therein expressed. An execution of this 2d article, or a parment in pursuance of its provisions, would be one in consequence of nities. The convention is such an adjustment by the two nations, by "negutiation" or an "adjustment" by the two nations respecting indemwhich it is determined on what account there shall be indemnities, and in what instances the United States shall be held to satisfy them and the other demands, under the term debts, as described in the said 5th article. It does not appear that accounts and vouchers for freight were among d, those mentioned in the 1st article o fthe convention as presented to the French government, or that debts for freight were among those whose

[1]

result was comprised in the conjectural note mentioned in the 2d article. If they were not, it is conclusive against the demand in question; but if they were, no conclusion results therefrom in support of the claim, if it is within the subsequent exceptions.

The 4th article of the convention confines the demands which the United States are held to pay to such debts as are due for supplies, for embargoes, or for prizes made at sea, in which the appeal has been properly lodged within the time mentioned in the convention of 1800. The mistake in there being no such time mentioned, will probably not alter materially the effect of this article.

An execution of that convention being an express object of the late one, this last particularly refers to the 2d article of the first, respecting indemni ties, and to its 5th, respecting debts; but so confounds and limits these terms as to render their meaning in some instances to a degree doubtful, and in others very circumscribed. The "debts contracted" of this 5th article are, by the 4th, as above stated, confined to those for supplies-at least so far as they are to look to the United States for payment. Debts or demands for the freight in'question cannot be considered, on any princi ples, as included in this description. The "indemnities claimed on ac count of captures or confiscations," and "indemnities due or claimed," as mentioned in the above said 5th and 2d articles, are confined, in like manner, to indemnities for embargoes and prizes made at sea. A demand on account of an embargo detaining both vessel and cargo, or the vessel alone, can, in no sense of the word, be considered as including a demand for the vessel's having transported the cargo, which is the ground of a claim for freight.

Are, then," debts," or rather "demands," on account of freight, in cases of capture, as distinguished from "debts due for supplies or for em bargoes," provided for under the terms "debts due for prizes made at sea?" The positive effect of these terms is to include only such demands as are in consequence of captures made at sea, but not necessarily all such. The next article of this convention, therefore, limits the demand on account of captures to such as had been, or should be, ordered to be restored, and in cases of the insufficiency of the captors; and expressly excepts demands on account of prizes whose condemnation had been, or should be, confirmed. These limitations, being inconsistent with the idea of a payment of freight in some instances in which it may be clearly due from the French government or the captors, and not very congenial with such an idea in others, conclude, with great strength, in favor of excluding it in all cases, as a demand transferred to the United States.

Demands for freight, where individuals may have transported articles for the French government, or for its citizens, if such have existed, as they are within no positive provision of the convention, are out of the question. In such cases there was a voluntary credit, which, if mis applied, as it was the creditor's folly, so it will be his loss; the United States in no event, and on no principles, being bound to protect or pay such claims-they not being debts for supplies, as before stated, or on account of captures at sea, as above expressed.

A decree or an order for restitution or condemnation is-1. Either of the vessel and cargo; or, 2. A condemnation of the vessel, where the cargo is restored; or, 3. A condemnation of the cargo, where the vessel is restored. In the first two cases, on general principles, there may be a