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 inference 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 delivered 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 Bonille 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 deposited 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 Massachusetts, 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 to the claimants until it was ascertained, by judgment of law, that they were entitled to receive them, it was perfectly reasonable that the investigation 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 attachment; 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 erpended 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

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., if prosecuted in Philadelphia.

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 security, 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 of 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 disbursements 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, disembarrass 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 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 admitted 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, as 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. This would have in no event rendered the trustee liable, until after a principal judgment could have been obtained 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 account of this attachment, or that B.'s credit or business was thereby in 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, in case of a judgment against him. Surely Mr. Russell would have consented to this, without insisting on an actual deposite or pledge of money, and also the use of this money, without accounting to his friend for its interest. If so, B. could have sustained no injury from the attachments;

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,-Í 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 government, 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.