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May 21, 1868.

Benjamin H. Smith, Esq.

late Attorney of the United States,

Kanawha C. H., W. Va.

Sir:

Your letter of the 15th instant, and that of the 2d instant, also, disclose some doubt in your mind, of your responsible relation to the Harper's Ferry suit, as counsel for the government. As the United States is not a party of record, and the suit is pending in the Court of a State besides, your action was dependent upon the discretion of the Department having cognizance of the interests affected by the litigation. Accordingly, the Secretary of War applied to the Attorney General for your services, and by a letter from this office of the 3d September 1867, you were directed, at his instance, to act. You are therefore understood to be acting in the capacity of counsel employed, as other counsel, under a contract made with the Head of the War Department.—As long as that Department does not otherwise signify, it would seem that the fact of your ceasing to hold official relations to the United States does not affect your engagement for the conduct of the suit in question. There is great uniformity in the practice under this head.

Other matters referred to in you letters above-mentioned will receive early attention.

Respectfully,

Your obedient servant,

John M. Binckley,

Assistant Attorney General.