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To Thomas Jefferson from Levi Lincoln, 15 September 1801

From Levi Lincoln

Worcester Sept 15—1801


Since my last, has been received your’s of the 26th & 28 of August. The former was read with great pleasure, and the subject matter of the latter had been previously attended to—I lately spent several days in Boston, find the sentiments and feelings of the opposition, much as I have heretofore stated. The republicans in spirits, the federalists depressed, and the lower classes of them, are little more sharpened, from an idea that their railings will have no effect, unless it be to produce more firmness in the measures of Government. The tone of the public papers more feeble in the matter, & a little more bitter in the manner of the abuse. I met with the late President, at a meeting of the academy of arts & sciences, he appeared pleasant, treated me with politeness, but nothing very particular took place between us.—The first time, I was in Boston after my return from the Southward, I had a consultation with Otis and Ames on the Bingham cause, Mr Davis was with us a part of the time, but was obliged to leave us for the Plymouth court. As he had, the most knowledge of the cause, from having been in it from the first, we agreed to attend further to it, at a then future time when he could be present. Lately I went through the cause, with him, & Mr Blake, to whom Mr Otis had delivered over the business of the United States, examined all the papers, & the existing state of the action,—and am sorry to say, I can see no prospect of preventing a judgment for a considerable sum of money, from any situation into which, the action can now be placed. It is unnecessary to state the various measures which have been gone through with, in reference to this controversy—Many of them are so now fixed, by some means or another, as to admit of no alteration. The action now is, for money had & received the object to reverse a judgment recovered on a default, for the proceeds of the sale of the cargo of the Brig Hope. There has been a condemnation of the Brig & Cargo, in the Circuit court by a default, on a regular process. This condemnation is binding on all the world, in favour of the libellents. It cannot now be altered. A monition had been proposed, & conceded to, by the opposite party, as securing some advantages to Mr Bingham. I can see none from changing the shape of the action, or, even the court, in the situation of the remaining merits of the cause—It is already agreed, that all special matters shall be given in evidence, under the general issue in the present action. As it respects the United States I am decided, it is not best for them, to make any further agreements about the action, but to let it take its legal course. If Mr. Bingham in receiving the property, acted as Agent for the United States, and can make it appear to the purposes of charging them, independent of their resolves for that purposes, he can make it appear, to the purposes, of defeating this action. For this would be a good bar, and can be given in evidence under the agreement. If he did not act as Agent, It will be a question, how far Govt have bound themselves by their past acts. If Mr. Bingham is entitled, to deductions for use charges & monies expended, out of the proceeds of the cargo, in his care and attentions to the business, it will be as regular, to make those deductions, in the equitable action, now pending as under a monition—At any rate, I think Cabot ought not to recover interest, untill after the condemnation—After a full consultation both Mr Davis & Blake agreed, with me, it was not best to alter the shape of the action—Mr. Ames, who had been engaged, both by the late Secretary of the treasury, & Mr Bingham, and who was present on the former consultation was absent on account of the escape of Fairbanks from the Dedham Gaol—It was determined, on the trial, to state all the points to the Court without changing the nature of the action, & principally to urge the agency of Bingham, in Bar; and a deduction of the cost charges & expences, & a limitation of the interest, from the time of the condemnation, in mitigation of damages. I shall see the Gentlemen again, before the trial, But if no further instructions are received, the cause will take the above described course. The letter of the resolve of June 20 1780 does not necessarily go to indemnify for any thing further, than the cost & expences of the suits, perhaps however its intent might extend to the debt or damage—

Accept Sir assurances of my highest friendship & respect—

Levi Lincoln

RC (DLC); at head of text: “President of the United States”; endorsed by TJ as received 1 Oct. and so recorded in SJL with notation “S.”

My Last: Lincoln to TJ, 14 Aug. Harrison Gray Otis and Fisher Ames were William Bingham’s legal counsel in the case pertaining to the Hope and its cargo. In July, TJ made Boston attorney George Blake the U.S. attorney for the district of Massachusetts in place of Otis, whom John Adams had appointed to the position late in his term (Alberts, Golden Voyage description begins Robert C. Alberts, The Golden Voyage: The Life and Times of William Bingham, 1752–1804, Boston, 1969 description ends , 366; Kline, Burr description begins Mary-Jo Kline, ed., Political Correspondence and Public Papers of Aaron Burr, Princeton, 1983, 2 vols. description ends , 1:443n; Vol. 33:219, 245n, 672, 677).

Let it take its Legal Course: in January 1802, in response to a query from Madison prompted by a letter from Bingham’s agent, Charles Willing Hare, Lincoln stated his opinion that “the U.S. ought not to be any farther concerned in lawsuits on this subject.” Lincoln argued that the judgment against Bingham in circuit court was “a legal proof, that he had not sufficient authority from the U.S. to take the property as their agent,” and that the government was “not in strictness bound” to pay the judgment. Ames may have held a similar opinion, since he advised Bingham that he would probably have to pay the judgment. Following Bingham’s death in 1804, Hare paid the plaintiffs from Bingham’s estate (Lincoln to Madison, 21 Jan. 1802, in DNA: RG 59, LOAG; Alberts, Golden Voyage description begins Robert C. Alberts, The Golden Voyage: The Life and Times of William Bingham, 1752–1804, Boston, 1969 description ends , 415, 417, 430).

Resolves: at Bingham’s request, Congress had passed two resolutions relating to the Hope affair. The second one, dated 20 June 1780, sanctioned what he had done, authorized the reimbursement of his legal expenses, and pledged to pay any judgment found against him in the case of the Hope. The United States was “ultimately responsible” for Bingham’s actions in the matter “by virtue of resolution of the Congress under the Confederation,” Timothy Pickering attested in 1799 (DHSC description begins Maeva Marcus and others, eds., The Documentary History of the Supreme Court of the United States, 1789–1800, New York, 1985–2007, 8 vols. description ends , 6:556; Alberts, Golden Voyage description begins Robert C. Alberts, The Golden Voyage: The Life and Times of William Bingham, 1752–1804, Boston, 1969 description ends , 366).

John Cabot was the lead plaintiff in the suit against Bingham (Syrett, Hamilton description begins Harold C. Syrett and others, eds., The Papers of Alexander Hamilton, New York, 1961–87, 27 vols. description ends , 14:156n; DHSC description begins Maeva Marcus and others, eds., The Documentary History of the Supreme Court of the United States, 1789–1800, New York, 1985–2007, 8 vols. description ends , 6:554n).

In August 1801, Jason Fairbanks, a young man of Dedham, Massachusetts, was convicted of murdering his love interest, Elizabeth Fales. They were both reported to be of “respectable families” of Dedham, and according to one account almost 2,000 people attended Fales’s burial. Otis was one of Fairbanks’s court-appointed attorneys. Fairbanks received a sentence of death, but on the night of 17–18 Aug. a party of men freed him from jail. Captured before he could reach Canada, he was brought back to Massachusetts and hanged on 10 Sep. 1801. Newspapers outside Massachusetts reprinted news of the murder, trial, jailbreak, and execution (Dale H. Freeman, “‘Melancholy Catastrophe!’ The Story of Jason Fairbanks and Elizabeth Fales,” Historical Journal of Massachusetts, 26 [1998], 1–25; Alexandria Advertiser and Commercial Intelligencer, 1 June; Washington Federalist, 12 June, 19 Aug.; Alexandria Times, 27 Aug., 21 Sep. 1801).

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