between a condemnation and a final condemnation. A libel decided upon in a different court is liable to be carried to the circuit court by an appeal; the judgment appealed from is final in the first court in reference to interlocutory judgments, but not so as it respects the process. The same process goes to the circuit court; no execution can issue; and the judgment, which would have been final had there been no appeal, is as much suspended thereby as if a new trial had been granted. Not so with a writ of error to the Supreme Court. There the judgment is not suspended, and, except in the case of a bond being given within ten days, execution may issue, and the judgment be carried into complete effect. How far a bond, which would suspend the execution, would bind together the judg ment in the circuit court and the writ of error, (which is, quasi, a new process,) so as to make them a continued one, is not now necessary to consider, as it is not our case.

But, however this general principle may be determined, it can have little or no effect on the case of the schooner Peggy. The Supreme Court, who were competent to decide this principle, have determined it in her case. It must, therefore, be considered as binding in this particular instance. Although they have fixed the principle for themselves, and thereby bound others, in reference to the case on which they have adjudicated, it can, I conceive, extend no further. In all other cases in which the Executive or other courts are obliged to act, they must decide for themselves; paying a great deference to the opinions of a court of so high an authority as the supreme one of the United States, but still greater to their own convictions of the meaning of the laws and constitution of the United States, and their oaths to support them.

It appears, by a certificate of the clerk, that no bond was given by the plaintiff's in error; and indeed the distribution of the property is proof of it, by the circuit court. I have been informed that Messrs. Bayard and Griswold appeared in the Supreme Court and argued the cause for the captors; if so, it saves the want of notice to them. Government, I con. ceive, are not immediately, or in the event that the owners cannot recover from the captors the other moiety of the avails of the schooner Peggy and her cargo, liable for it. In strictness, I believe with the court-their judgment divests the property, and entitles the owners to recover from them their distributive shares. How far, under the circumstances of the case, it is reasonable for government to make them compensation, you are much more capable of determining than myself.

I am, &c.,

To the SECRETARY OF STATE.

LEVI LINCOLN.

BARRATRY ON PRIVATE PROPERTY IN EUROPE.

The authority of the general government to take, forcibly detain in custody, and bring to this country, from Europe, a person charged with barratry on private property, is doubtful. The offender, if he were here, would be amenable to our courts.

WORCESTER, October 29, 1802.

SIR: I have considered, with all the attention I am capable of, the case of Captain Clifton, which you did me the honor to ask my opinion concerning. It is believed no law recognised by nations, enacted or adopted

by the United States, is particularly applicable to this case, or will render it proper for the United States to interpose. I doubt very much the authority of the general government to take, forcibly detain in custody, and bring to this country, from Europe, a person charged with barratry on private property. He being here, it appears to me clear he would be amenable to our courts. The tortious act must have originated on the high seas, or, at least, must have been so continued as to have existed on the high seas, and constituted a new act of barratry in every successive place to which the vessel was carried. If, therefore, it was a criminal offence, I conceive he would be triable by our courts; although, had such an offence taken place in a situation within the territory and exclusive jurisdiction of a foreign nation, it might be questioned. This being a civil offence-a breach of trust-there can, I think, be no doubt.

The case (from the papers) appears to me a deep-marked instance of barratry. Still it may be otherwise; and the United States are not authorized to examine into and decide on the evidence, but in regular process, exhibited to proper tribunals by the injured party. Clifton's imprisonment by the Spanish government is not adverse to the rights of the United States, or of their citizens, of which they complain against that government, and the actual wishes of the owners. As the United States have nothing to complain of, or to ask for, from the Spanish government, 1 can see no necessity for their interference. If Clifton has violated the laws of Spain, or if its laws will give a remedy to the injured owners, they are at liberty to pursue it there; if not, they will take their own means to obtain it elsewhere. If the owners are unlawfully detaining their master in prison, they are liable to his action. The controversy appears to be of a civil nature, between private persons; and, like all such cases, to be left to their own course, on the ordinary principles of law: a master defrauding and cheating his owners, by embezzling their ship and goods on board, being triable by a court of admiralty, and not differing in principle from any other fraud or breach of trust.

The sufferings of Clifton, as a citizen imprisoned in a foreign country, addressed to the humanity or charity of the United States, are objects of attention. He certainly ought to be brought to trial, or to be released. My opinion is, that it would be best for Mr. Pinckney (considering what has already taken place) to inform the owners, or their agents, that it is a matter involving private rights, and with which the United States cannot with propriety interfere; and that, therefore, they will pursue such measures for the redress of their injuries, in conformity to law, as they may judge expedient. I am, &c.,

To the SECRETARY OF STATE.

LEVI LINCOLN.

CONFIRMATIONS AND GRANTS IN THE NORTHWESTERN TERRITORY. Under the act of March 3d, 1791, entitling heads of families who had removed without the limits of the Territory, and occupied certain lands, within five years, to the donation lands specified in said act, those persons who returned to their respective districts only within five years are entitled to the benefit of said provision.

WASHINGTON, March 14, 1803.

SIR: I have the honor to state my ideas on the questions contained in Governor Harrison's letter, which was addressed to yourself, and handed

to me by the President. It is difficult for one to understand precisely the grounds of the governor's doubts on the supposition of Detroit being considered as without the limits of the Northwestern Territory whilst it remained in the possession of the British.

The resolve of June 20th, 1788, confirms the titles and possessions of the described lands to such inhabitants and settlers thereof, who, on or before the year 1783, had professed themselves citizens of the United States. It also provides that each of the said families then living on the said lands, who should continue to reside within their respective districts three years from the time that an additional allotment of four hundred acres of land should be made for them, as therein is specified, should have a title to the same; otherwise, not.

The act of March 3d, 1791, provided that such of the heads of the said families who were at Vincennes or Illinois in the year 1783, and who had since removed from one of those places to the other, should, notwithstanding, have the four hundred acres donation land, to be entered in either of the said districts, at their election; and the same act further provided, that the heads of the said families who had removed without the limits of the Territory, and occupied the said lands within five years, should also be entitled to the donation lands aforesaid.

This law changes the terms on which a title to the donation lands was to have been acquired, only in reference to such persons as had removed from one of these districts to the other, and to such as had removed without the limits of the Territory. The claims of all other persons are, as they originally were, to be decided by the provisions of the resolve.

It is clear that the Territory intended by the act is the Northwestern Territory, and not that of Vincennes, Illinois, or of the allotted lands; and that the five years mentioned by the act are to be computed from the time of its passing, and not from the time of the land claimants' departure from Vincennes or Illinois, as the governor seems to suppose.

Three descriptions of persons only appear to be entitled to the allotted donation lands-one under the resolve, and two under the act.

Under the resolve, such heads of the aforesaid families, or their heirs, who resided within the particular described district three years after the allotment of the aforesaid lands.

By the act, first, such as had changed their residence from one of the said districts to the other, previous to the passing of the act; and, secondly, such as had removed without the limits of the Territory, and who returned to their respective districts, and occupied within five years, as aforesaid.

Concerning the last description of persons alone is there any question. And if Detroit, as it is conceived to be, is, in the construction of the law, within the said Territory, then those who had moved thither, although they may have returned to Vincennes, &c., within the five years, and there occupied their lands, cannot be considered within the provisions of the act. The law appears to have made no provision for such persons who had removed to places out of the land districts to places within the Territory, without having secured their title by a three years' residence, as aforesaid. These people were probably presumed, from their situation and means of information, to have been acquainted with the original terms of the donation, and, from their non-residence and non-compliance, to have abandoned their claims. As those who had removed from one of

the said districts to the other had thereby evinced their design of removing into that country, they were provided for; and, as those who had gone into distant parts without the Territory might not have got information of the donation seasonably, under the resolve they were provided for, on condi tion of their returning to the district within the five years. The persons who went to Detroit were within the principles of neither of these provisions; for, besides associating with those who were forcibly maintaining an adverse possession, hostile to the rights of the United States, they were in a situation in which they might as easily have learned the fact of the passing of the resolve and its provisions, as if they had resided in some other parts of the Territory. There are other reasons for consider. ing Detroit as within the Territory. It is geographically so-so by treaty and right. As such it was considered, claimed, and demanded by the United States; and withheld by the British government, as a means of compelling a coupliance with their demands. The terms of the act are descriptive of boundaries, not of the actual exercise of civil authority. The words are, "without the limits of the Territory," as expressive of local extent, and not of actual limits of political power or extent of legal jurisdiction. Indeed, in critical and legal strictness, the territory actually occupied and possessed by the British at Detroit was within the outward limits of the Northwestern Territory, as that Territory was possessed by the United States. The possession of the British having been a wrongful one, it is not to be considered as constructively extended beyond the country they actually covered or occupied; whereas the possession of the United States, under the treaty, is to be considered as including all the lands and waters, from which they were not actually excluded, within their treaty limits, and, of course, as extending to the line northwardly of Detroit, so as to include it.

But, admitting Detroit to have been out of the limits of the Territory, within the meaning of the act, yet, if those persons who removed thither did not return and occupy at Vincennes within the five years from the passing of the act, they cannot be entitled to any benefit under it.

I am, &c., &c.,

To the SECRETARY OF STATE.

LEVI LINCOLN.

GOVERNMENT LIABILITY.

A receiver of captured property, to deliver to the true owners as they should be ascertained by Congress, and who converted the property and had the means of indemnifying himself, has no claim upon the United States for the payment of a judgment obtained against him, unless it expressly appear that such property came into his hands as agent for the United States. (See opinion of January 21, 1802, ante.)

WASHINGTON, March 18, 1803. SIR: I re-enclose Mr. Bingham's letters respecting his action with Cabot and others, as they contain little more than a repetition of former statements. The following observations are similar, it is presumed, to what I had the honor of making in a former letter, of which I preserved no copy

Mr. Bingham appears to consider his demand against the United States

as warranted by law. He certainly ought to have the fair and intended benefit of any resolve which may have passed in his favor; but not of any erroneous construction of such a resolve, even if such a one has ever been made beneficial to him.

Uncontested facts, and the repeated decisions of courts competent to the purpose, show that Bingham, in the transactions which gave rise to the actions he has suffered from, could not have acted as agent, or at least as an authorized agent, of the United States; for if he had so acted, he must have prevailed in his suits.

Bonille's order, on which much dependence has been placed, was that the cargo should be sold, and that its net proceeds should remain in the hands of B., to be delivered to whomsoever, according to the decision of Congress, these proceeds might belong. This order is B.'s first and only authority for meddling with the property in question; and it also proves for whom and to what purpose he could, in any sense of the word, be considered as an agent concerning it. The object of his agency in receiving is by this order expressly pointed out, namely, to keep and deliver over the proceeds received, to those to whom, according to the decis ion of Congress, they might belong. Nothing can be plainer than B.'s duty; and nothing more safe and indemnifying in itself, had it been pursued.

On February 2, 1779, he informs Congress of the capture, and adds that Bonille had insisted that the cargo should be disposed of; and the island being in great want of this necessary article, (flour,) that the sales would be more advantageous to the concerned there than in Europe, and would make the misfortune fall less heavy on the concerned. By this letter it appears that the flour was at a good market, the sales advantageous, and that the net proceeds received by B. would at all times be sufficient to meet the equitable and legal demands of those to whom they might be long, and, being delivered to them, to indemnify and save harmless the agent who received them.

On the 30th of November, 1779, in consequence of a letter from Mr. Bingham, against whom suits were then pending in Massachusetts, Congress requested the legislature of that State to consider whether it would not be advisable to stop those suits until the principal question (prize or no prize) should be determined; after which, said Congress, it would be in Bingham's power to discharge himself, by delivering to the true owners the property placed in his hands for their use.

At this time it is clear that Congress did not mean to change the terms on which B. received the captured property, to become responsible themselves, to indemnify B., or to aid him any further than to find out who those true orners were, to whom he could with safety deliver what had been placed in his hands for that purpose. The special principles of his agency, of law, of equity, and the most obvious principles of common justice, would require no more; because, the owners being known, he had already been furnished with the means of indemnifying himself; and then holding them, could completely do it by delivering over the property which had been placed and continued in his hands for that very purpose, and on the very event of the owners being known.

It is to be repeated that Bonille's order to B. was for him to deliver the proceeds of the cargo to whomsoever, according to the decision of Congress, they might belong; and that they, in their above-mentioned address