to. Nothing short of this could bring down the proud and towering spirit of the Bashaw himself. An order was issued, and this order executed; it was faithfully executed; and that constitutes the foundation of the claim now set up for remuneration, by the captors of the Philadelphia; and yet it has been contended, and is now gravely contended here and elsewhere, that the order of Commodore Preble conflicts with the legal and equitable rights of the captors. I will transcribe, literally, the order which emanated from Commodore Preble. [APRIL 19, 1834. my from the vessel, and acquiring an undisputed control and possession--without having, to all intents and purposes, captured her from the Tripolitans. I am aware that it was part of the order to burn the Philadelphia: I am aware that the destruction of the vessel was regarded as an object of great importance: and I cannot for a moment doubt that, were it not for such an additional direction, Decatur would have brought her in triumph and in safety out of the harbor of Tripoli, and attached her to the American squadron then in the Mediterranean. Be that as it may, the order was first to board-to break down all opposition-to carry all by the sword-to con "UNITED STATES SHIP CONSTITUTION, "SYRACUSE HARBOR, Jan. 31, 1804.quer the enemy, and to capture the vessel; and it could not have been possible for the crew of the Intrepid to "SIR: You are hereby ordered to take command of have set fire to the Philadelphia, and thereby to burn and the prize ketch which I have named the Intrepid, and to destroy her, until they had divested the foe of the pos prepare her with all possible despatch, for a cruise of session, and had obtained the entire control themselves. thirty days, with full allowance of water, provisions, &c. Such was the order, and such is the evidence in the case. for seventy-five men. I shall send you five midshipmen It was, then, a capture, and every right vested in the capfrom the Constitution; and you will take seventy men, in- tors which would have vested had the capture been made cluding officers, from the Enterprise, if that number can upon the high seas, "jure belli." be found ready to volunteer their services, for boarding Before I examine further this position, I would advert and burning the Philadelphia in the harbor of Tripoli; if for a moment to the effect produced at Tripoli by the not, report to me, and I will furnish you men to complete capture and destruction of the Philadelphia, and by the your complement. It is expected you will be ready to events which followed close upon that brilliant achieve sail to-morrow evening, or some hours sooner, if the sig-ment. nal is made for that purpose. It is my order that you pro- "The tone of confidence and triumph continued until ceed to Tripoli, in company with the Syren, Lieutenant this daring enterprise illuminated the castle of the Bashaw Stewart-enter that harbor in the night-board the Phi- with the blaze of Decatur's trophy. ladelphia-burn her, and make good your retreat, with the Intrepid, if possible; unless you can make her the means of destroying the enemy's vessels in the harbor, by converting her into a fire ship for that purpose, and retreating in your boats and those of the Syren. "The sensation produced by the achievement was indescribable: consternation and dismay were depicted on every face. But the best evidence of its impression was the frequent conferences of the Pacha with the consulshis undisguised desire to make peace, and his propositions to that effect, on terms much more moderate; even for $200,000 did he then offer to ransom our captured free men. The results of this capture were of incalculable advantage to the nation. They led to an honorable peaceto the abolishment of tribute--to the liberation of the suf fering captives--to future peace and honor—and to a gal lant, ambitious spirit in the navy." "You must take fixed ammunition and apparatus for the frigate's eighteen pounders; and if you can, without risking too much, you may endeavor to make them the instruments of destruction to the shipping and Bashaw's castle. You will provide all the necessary combustibles for burning and destroying ships. The destruction of the Philadelphia is an object of great importance; and I rely with confidence on your intrepidity and enterprise to ef The effect produced upon our brave countrymen, then fect it. Lieutenant Stewart will support you with the immured in Tripolitan dungeons, can better be conceived boats of the Syren, and cover your retreat with that ves- than described. It could not fail to reanimate their hopes, sel. Be sure and set fire in the gun-room berths to lighten their burdens, and to strengthen their confcock-pit-store rooms forward, and berths on the berth-dence. One ray of light, emitted from the towering mast deck. After the ship is well on fire, point two of the of the burning Philadelphia, breaks in upon their dark eighteen-pounders shotted down the main hatch, and blow her bottom out. "On boarding the frigate, it is probable you may meet with resistance. It will be well, in order to prevent alarm, to carry all by the sword. May God prosper and succeed you in this enterprise. "I have the honor to be, &c. "EDWARD PREBLE. and comfortless cells: they could not but feel its cheering influence; they could not but be thereby better fitted to bear every privation, and to submit to every suffering which the deep-rooted malice, and the humbled pride of their own and of their country's enemy, should presume to inflict. It will be admitted that the subsequent capture of the Tripolitan gun-boats in August, 1804; the brilliant success "Lieut. Commandant DECATUR, Intrepid." attending the land operations of General Eaton and his Such was the order--an order most faithfully executed; army, and the self-immolation upon the altar of patriotism the execution of which has given to our country an ele- of the intrepid Somers and his comrades--whose fates are vated naval character among the nations of the earth. told on the proud monument erected to perpetuate their And what, Mr. Chairman, is the fair import, the liberal fame and glory, now standing in the front of this Cap and just construction of this written command? It is no-tol-more or less contributed to that highly favorable thing more and nothing less than a direction to Decatur to treaty which was made with Tripoli in June, 1805, si5board the Philadelphia, and, if he meets with resistance, teen months only after the capture of the Philadelphis. to carry all by the sword; in other words, to overcome the By the 2d article of that treaty, it is expressly stipulated, enemy to obtain the entire control, the absolute posses that sion of the vessel-to divest the enemy of all right, and to "The Bashaw of Tripoli shall deliver up to the Amer make her the means (if, in the exercise of a sound discre- can squadron, now off Tripoli, all the Americans in his tion, he can) of destroying the Bashaw's vessels in the possession; and as the number of Americans in possession harbor; or, if he can, without risking too much, he might of the Bashaw of Tripoli amounts to three hundred per make the guns of the vessel the instruments of destruc- sons, more or less, and the number of Tripoline subjects tion, not only to the shipping, but to the castle of the in the power of the Americans, to about one hundred Bashaw. It was not possible for Decatur to fulfil the more or less, the Bashaw of Tripoli shall receive fic order which was given him, without first driving the ene- the United States of America the sum of $60,000, as APRIL 19, 1834.] OF DEBATES IN CONGRESS. payment for the difference between the prisoners herein I have already adverted to some of the circumstances which attended the capture of the Philadelphia, and which of itself produced such a revolution in the temper and mind of the Bashaw of Tripoli. I have already adverted to the circumstances under which the enterprise was carried on, by whom the plan was conceived, and by whom it was executed. 3690 [H. or R. "There is no doubt but that a capture authorized by for twenty-four hours, the property captured is transferred the rights of war transfers the property to the captor. to the captors."-2 Dallas's Rep. "By the law of nations, after a capture and occupation No one will or can doubt, then, the direct and substantial benefit which the capture of the Philadelphia and subsequent events produced to our country. While that vessel was in the possession of the Pacha and his court, nothing less than a million of dollars could purchase the particular statutes of our Government. ransom of her crew. By the treaty of June, 1805, he gave vests captured national ships and vessels of war in the The general law of nations has been controlled by the up all for the sum of sixty thousand dollars, and agreed United States, and captured vessels of other descriptions that there shall be, from the conclusion of the treaty, a in the captors; most distinctly making, in all cases, capThe act of 1799 firm, inviolable, and universal peace, and a sincere friend-ture the foundation of the right. I admit that, by the act ship between the President and the citizens of the United of 23d of April, 1800, the act of 1799 was repealed, and States of America on the one part, and the Bashaw, Bey, I have referred to that act only for the purpose of illus and subjects of the regency of Tripoli, in Barbary, on the trating and enforcing my general position, that by the other, made by the free consent of both parties, and on capture the right is vested, and that such, then, was the the terms of the most favored nations. which have been inviolably observed: our commerce has been, from that time undisturbed; our trade has re- called, it is provided "that the proceeds of all ships and Stipulations express enactment of Congress. mained uninterrupted; and the name of an American cit- vessels and the goods taken on board of them, which shall By the fifth section of the "prize act," as it has been izen has never failed since to command respect in that be adjudged good prize, shall, when of equal or superior state in Barbary. No tribute in money or in stores has force to the vessel or vessels making the capture, be the been exacted. The memorable successes and events of sole property of the captors; and when of inferior force, 1804 gave us an influence and a character with that and shall be divided equally between the United States and every other Barbary Power, which has, since that period, the officers and men making the capture." been felt and acknowledged. lightened Governments making such statutory provisions. This cannot fail to produce the happiest effects, to stimuThere can be no doubt of the policy in free and enlate the spirit, and to nerve the arm of him who is called to fight the naval battles of his country, who is required to engage in the most perilous of any service, surrounded on every side by dangers dark and discouraging, where Regarding the taking of the Philadelphia as a legal delay, and no security in retreat, when the only watchcapture, I will proceed to show what rights the captors word is, "conquer or die." The idea that the capture there is no power to avoid, where there is no safety in thereby acquired. For I contend that the subsequent shall become the right of the captors, excites in the hour destruction of the vessel, by order of Commodore Preble, of battle every human energy, and strengthens every cannot impair any right which was vested by the capture human effort. It has, therefore, wisely entered into the itself. And as it respects the captors, it is wholly imma-policy of all nations, distinguished for their naval chaterial whether the order was given for the destruction racter, to offer such encouragements; and it would be anterior to the engagement, or during the engagement, monstrous if this policy could be frustrated, could be or after the capture had been achieved. We were at war set at naught, could be of no practical benefit, wherever with Tripoli; the great end and aim of every battle was to there happens to be a failure in obtaining a legal adjuannoy the enemy to the greatest possible extent. question and the only question, is, was the enemy depri- I apprehend not to be the fair construction, the plain inved of so much of her naval force, by the power of our tent of the section of the prize act above quoted, which Thedication to establish the right of the captors. arms: Was the Philadelphia captured? No one who es at the foundation of the claim of the captors of the reads the evidence can doubt the fact. when the flag of the enemy was struck, that moment the objection before I close my argument. right to the capture vested in the captors. The moment to call the attention of the coinmittee to the letter of this The moment Philadelphia. I shall advert more particularly to this the stripes were raised above the crescent, that moment section, and to see whether it means any thing more or less the interest of the Bashaw ceased, and the interest of the than what is expressed in the section of the act of 1799. I now merely wish captors commenced. all ships and vessels, and the goods taken on board them, It I can give to it a proper examination and a just conshall, when of equal or superior force to the vessel or vessels making the capture, be the sole property of the captors." 2dly. The proceeds of such captures when adjudged good prize, shall be divided and distributed as construction is in perfect accordance with the policy of the prize system, with the letter of the prize act of 1799, pointed out in the subsequent clauses of the act. This and with the uniform legislation of Congress since the act of 1800, carrying out the principle that, by capture, the right becomes vested in the captors. That whenever the vessels taken can be brought in, and be proceeded with in our courts of admiralty, can be libelled and can be adjudicated as good prize, then the proceeds of the sale made in pursuance of a judicial decree, are distributed and divided in conformity to the povisions of law; but when the vessel cannot be brought into port, when for any cause she is destroyed, or in any way disposed of by order, for any purpose, or when she is recaptured, then the aid of Congress is called in to do for the captors what Such To the captors, then, belonged the value of the Phila-struction, it provides clearly and distinctly: 1st. "That delphia, at the time and place of her capture, unless there have been subsequent acts, on their part, amounting to a voluntary abandonment of the prize. This is not contended; it was the order of the agent of the Government which aloneprevented the Philadelphia, after her capture, from being again attached to our navy. By the act of Congress of March 2, 1799, it was provided "that all captured national ships or vessels of war shall be the property of the United States; all other ships or vessels, being of superior force to the vessel making the capture, in men or in guns, shall be the sole property of the captors, and all ships or vessels of inferior force shall be divided equally between the United States and the officers and men of the vessel making the capture." The same act then proceeds to make distribution of the prize money among the captors. It is very apparent that the capture, and not any proceeding subsequent to the capture, establishes the right of the captors. Such were the express provisions of the act of 1799. By the law of nations, the property, as soon as taken, is transferred to the captors. [APRIL 19, 1834. the policy of the prize system requires to be done. If further use of the property. There was much contradicthe public enemy has been divested of any portion of its tory evidence, and the question, and the only question naval power, if a capture has been made by our arms, and presented for the consideration of the court, was, whether if, for any reason, a distribution of the value of the cap-there was such conduct on the part of the captors as ture cannot be made according to the existing law among amounted to an abandonment of the capture? clearly and the captors, then, and only then, is Congress appealed to, most distinctly maintaining the position for which I conto effectuate the principle of the prize system, founded, tend, that, by the capture, the right instantly vested in as it so clearly is, in public policy. the captors; and the final decision, as expressed in that case, was, that, upon the whole, it is the opinion of a majority of the court that the validity of the capture of the Grotius, as prize of war, is sufficiently established by the evidence."-9 Cranch, 372. There does not seem to me to be any analogy in principle between the case cited, and the case of the captors of the Philadelphia; for it will not be pretended that there was any conduct on the part of the captors of the Philadelphia evincing an intention to abandon the prize. So far from it, the evidence finds that the vessel would have been brought out of the harbor of Tripoli in triumph, had it not have been for the order to burn and destroy, given by Commodore Preble himself. The Philadelphia was boarded--the enemy was subdued--she was captured-in the posses sion and under the control of Decatur and his men, and thereby she became their prize. But it is said by the gentleman from Kentucky, [Mr. HARDIN,] that the capture must have been made with the intent of retaining the vessel captured as a prize, otherwise the capture cannot be legally regarded as a prize; that the "quo animo" gives the true character to the transaction; that the purpose, the intent, must, be not only to capture but to retain as prize, otherwise it is no prize, and cannot be so regarded; that in this case, the Philadelphia was not captured to retain as prize, but "to burn and destroy;" that the question is, prize or no prize; that the order of Commodore Preble to Decatur, was not to bring off, but to burn the Philadelphia. I would, with all due respect to the opinion of the learned gentleman from Kentucky, inquire what constitutes, under our prize system, a naval prize; and when does it become such? Is it not the capture, the having the entire and perfect control of the vessel taken, and does it not then become the right, the property, the prize of the captors? It matters not what may have been the orders of the superior officer; it matters not what may have been the subsequent conduct of the captors, unless that conduct had amounted to a voluntary abandonment of the vessel captured. The enterprise was undertaken with the view and for the purpose of annoying, to the greatest possible extent, their country's enemy. The end and aim was to reduce the naval power of Tripoli; "and, as between bellige rants, capture produces a complete divestiture of property, nothing remains to the original proprietor but a mere scintilla juris, the spes recuperandi."-8 Cranch, 226. "Capture produces the transfer of the property of prize from the one belligerant to the other, at the instant of the capture, a property for which the victor's flag is the all-sufficient badge, and which can be divested only by recapture, or by the sentence of a competent court."-Jones's opinion, p. 41. The right had vested when the flag of the enemy was struck. Suppose the captors had run the Philadelphia out of the harbor, and attached her to the American squadron, contrary to the orders of the commodore; suppose that they had safely brought her into port, would not the vessel have been adjudged in our courts of admiralty as good prize, and would not her value have been distribu- The property becoming the captors' immediately by ted as prize money among the captors, according to the conquest and the right of war, must so continue until di provisions of the prize act? I think there could be no vested by a recapture, or by some legal means or act to doubt of the fact-and why so? Not from the circum-that effect.--3 Dallas, 194. stance of running the Philadelphia from Tripoli to Syra- By the court: "In determining the question of prop cuse. Not from the circumstance of bringing her into erty, we think that immediately on the capture, the capan American port. Those circumstances could not add tors acquired such right as no neutral nation could justly to or take from the title of the captors. If the captors impugn or destroy."--3 Dallas, 198. had not received orders to burn, but Decatur himself, (in] "A capture having been made, under a regular comthe exercise of a sound discretion,) after he had acquired the entire control of the vessel, to prevent her recapture, had burnt and destroyed her, there could be no doubt, in that case, that the instant the torch was applied, the right and title was in the captors. mission of the Government of Venezuela, the captors ac quired thereby a title to the vessel and cargo, which could only be divested by recapture, or by the sentence of s prize court. The captors must be regarded as the lawful owners of the property, and as capable of making s If the captors had brought the Philadelphia out of the forfeiture of it, by any infraction on their part of the ma harbor, and on her homeward passage had effected an in-nicipal regulations of the United States."-5 Wheat. 358. surance of the vessel, and the same had been lost, could The position of the gentleman from Kentucky, that the any doubt exist as to the right of the captors to claim the capture must have been with the intent of retaining the benefit of the policy? Certainly not. What gave the vessel captured as a prize, does not seem to have a bear. right? The capture. If the captors had violated any of ing upon the case now before the committee; for it is ap the revenue laws of a neutral Power, in the management prehended that the remark is applicable only to that class of the vessel captured, and she had been condemned, the of cases where the question arising is, whether the con original owners could set up no claim to her-all their duct of the captors, subsequent to the capture, amounts right and interest had been divested by the capture. to a voluntary abandonment. Every man is presumed to The gentleman from Kentucky [Mr. HARDIN] has intend the natural consequences of his own act; in the cited the case in the 9th of Cranch, as fully sustaining his case of the Philadelphia, the quo animo of the captors is position. I admit that it is there stated that some act fairly inferrible from the fact of the entire and perfect should be done indicative of an intention to seize and re-capture of the vessel. In connexion withr this objection tain as prize, and it is always sufficient, if such intention is the gentleman from Kentucky has suggested that the legal fairly to be inferred from the conduct of the captor."-opinions of the two learned professional gentleman, 9 Cranch, 370. But what was the question arising in the bodied in the documents presented to the House in rela case of the "Grotius?" It was whether the subsequent tion to the claim of the captors of the Philadelphia, were acts of the captors did not amount to a voluntary aban- given upon an assumed statement of facts not existing donment of the vessel captured; whether from their con- the case, that the opinions seemed to be predicated up duct it was not to be presumed that it was not the object the idea that the order of the commodore was to capture, to divest the enemy of all practical advantage from the fand not to destroy. APRIL 19, 1834.] OF DEBATES IN CONGRESS. Relief of Susan Decatur. 3694 [H. OF R. But, had the order of the superior officer been regard- tical means of furnishing documentary evidence, to aced as it should have been, as an absolute order to destroy company ships that have been captured, for the purpose the vessel, an order which Decatur was bound to obey as of proving that the seizure was of sovereign authority, fully as any command of his superior, they could not have and not mere individual outrage.-Cranch 8, 226. considered the Philadelphia, at any time, as a prize to the captors. Those opinions have certainly been drawn up the claim of an individual to real estate. with great perspicuity and learning, and it may be well doubted. The law requires that his title-deeds should be An adjudication in this class of cases may be likened to to refer to them in order to ascertain whether the gen- recorded, to preserve the evidences of his title; but his tleman be correct in his assertions. His title is unright, his claim, clearly existed before a single deed of I undertake to say that these opinions were formed and conveyance was put on record. This is merely pointed communicated with a perfect knowledge of the letter of out by law for establishing the proof of a pre-existing title. the order of Commodore Preble; that the opinions them-And in like manner does the right to an adjudication exist selves furnish conclusive evidence of this fact; that the in cases of naval captures before any adjudication can be express order of the commodore was not to run her out had. A party in any controversy must have an existing of the harbor of Tripoli, but, at all events, to burn and legal claim, before he can obtain any judicial decision esdestroy her. Had it been otherwise, had the case not tablishing that claim. have been embarrassed with the positive direction of Com-existing right; and, in cases like that under consideration, modore Preble, it would have been so clear and so con- it is the capture which gives that right. clusive as to the right of the captors that there would A judgment presupposes a prehave been no occasion to have obtained the opinions of distribution of the proceeds of prizes. A previous capgentlemen learned in the law. Argument would have ture must have been made, a prize must have been posThe section of the prize act referred to, relates to the been unnecessary. The just claims of the captors would sessed, before any proceeding could take place touching have long since been adjusted and satisfied. The fact, the distribution. therefore, which the gentleman from Kentucky supposes could not have been known to the learned counsellors, was the very fact itself which called for their opinions, and which fact constitutes the only difficulty in the case. The very first clause of Mr. Jones's opinion is in these words: "That the captors might, if not peremptorily en- capture, is clearly vested, before even the captured vessel joined to the contrary by their orders, have brought off arrives in port, or before any judicial proceedings could The right of the captors, under our prize act, to a their prize, and reaped the pecuniary reward designed take place. The right of the captors is not originated by them by law, is a matter of the highest probability, and a compliance with the provisions of that act. approximates to a certainty as near as any unaccomplished event can do," and the case, as stated by Mr. Coxe, shows that the gentleman, if he was rightly understood, was mistaken. tile, (as in this case,) condemnation as prize is not universally necessary, and may be regarded as little more than "Where the property is avowedly and notoriously hos mere formality."-Coxe's opinion, p. 45. subject, the captors of the Philadelphia were justly entitled to her value at the time of her capture; and the orIf, then, I am right in the views I have taken of this posing of the prize, cannot affect the question of title. The Government had the power to direct how it should ders which were given, as to the way and manner of disorders of their superior. The command might have been to destroy-it might have been to have given it, as a present, to the Pacha and the court of Tripoli. It was wholly The captors were bound to obey the immaterial as to what was the order. "An American man-of-war having succeeded in effecting the capture of an enemy's vessel of superior force; having entirely dispossessed the enemy and obtained un-be disposed of. disputed possession, in obedience to peremptory orders, destroys the prize without bringing it into port, and before obtaining a decree of condemnation in a prize court; have such captors any legal claim to the value of the captured property, or against the United States?" This was the case stated, and upon this case both of the accordance with the spirit of our institutions-that indilearned counsellors proceeded to give their opinion, which vidual property cannot be taken for public use without an One principle is perfectly well settled-a principle in was, that the captors acquired the right to compensation equivalent. "In mere private cases, between individuals, at the instant of the capture. The orders which prece-a court will and ought to struggle hard against a conded that event could not alter the legal principle, and, under our prize act of April, 1800, Decatur and his men became justly entitled to the value of the Philadelphia, at the time and place of her capture. struction which will, by a retrospective operation, affect the rights of parties; but in great national concerns, where individual rights, acquired by war, are sacrificed for naA second objection has been made to the bill on the of its citizens, it is for the Government to consider whether ground that, before any right vests in the captors, under it be a case proper for compensation."-Cranch 1, 110. tional purposes, if the nation has given up the vested rights the prize act, there must have been an adjudication. To this position I cannot yield my consent. to be at war with the principles of our prize system, with quired and justly possessed, has been taken by the order And the inquiry, the only true inquiry, in the case bepublic policy, and with the whole history of our legisla- of the Government, or by the command of those charged It seems fore us, is whether the property of individuals, fairly action; and, as I have before stated, such a position con- with the execution of the orders of the Government, for flicts with a fair and just construction of the fifth section national purposes, or for public policy. If so, we are of the act of April, 1800. I am aware that the claim of bound to make adequate and full remuneration. This I the captors of the Philadelphia, in the discussions which contend to be the case of the captors of the Philadelphia. have heretofore taken place, has been resisted, on the But, for argument, suppose it to be otherwise-suppose ground that the vessel captured could not be regarded as no absolute right was acquired by the capture, but an ina prize, because she was never brought into port, libelled, choate, an imperfect right, which a strict compliance with and, by competent authority, adjudged as good prize. the letter of the law itself was made necessary in order to Such a proceeding is based upon the fact that a right has perfect. Let us suppose that the two objections to which been acquired, and is only made necessary to perpetuate I have referred were well taken; still, I would ask if any that right. The title was made absolute by the capture: thing could be more unjust than for the Government to an adjudication was to be regarded as the evidence of take shelter under these legal objections, when it is most that title. It is admitted that "the modern and enlight-manifest that, by her act, and by her act alone, the capture ened practice of nations has subjected all such captures was not retained as prize, and by her act the vessel was to the scrutiny of judicial tribunals, as the only prac-not adjudicated "good prize?" If, then, the Govern H. OF R.] Relief of Susan Decatur. [APRIL 19, 1834. ment, by her orders, has prevented the captors of the Hull, after a close and short engagement, completely disPhiladelphia from claiming and receiving, under the most abled and captured a British frigate, gaining for that offirigid construction of the prize act, the value of that prize, cer, and ali on board, a praise which cannot be too libesurely those orders will not now be put forth by the Gov- rally bestowed; not merely for the victory actually achieved, ernment, by way of objection to the recovery of the claim- but for that prompt and cool exertion of commanding ants. But we are not without book-without light upon talents, which, giving to courage its highest character, and this subject. We have precedent upon precedent, to to the force applied its full effect, proved that more be found in our own legislation, going not only, in a clear could have been done in a contest requiring more." manner, to show the right of these claimants, but which And on the 22d of February, 1813, Mr. Madison comcannot fail to excite our admiration, that the only case, municated the following message: the case now under consideration, which in conception and execution, excels all other naval achievements, is the only one in our history remaining unrewarded. "To the Senate and House of Representatives of the United States: I lay before Congress a letter with accom panying documents, from Captain Bainbridge, now com It is my purpose to cite, somewhat in detail, the various manding the United States frigate the Constitution," acts of Congress in relation to this subject; and if there is reporting his capture and destruction of the British frigate any virtue in precedent, if any reliance is to be placed on 'the Java.' The circumstances and the issue of this authority, it must occur to the mind of every attentive combat afford another example of the prosessional skill observer, that we are no longer at liberty to turn a deaf and heroic spirit which prevail in our naval service. The ear to the claim of the captors of the Philadephia. Cases signal display of both by Captain Bainbridge, his officers, like theirs, in almost every particular, have been too fre- and crew, command the highest praise. quently the subjects of Congressional action. "This being the second instance in which the condition It will be remembered that, at the time of her capture, of the captured ship, by rendering it impossible to get her the United States were at war with Tripoli, and that up into port, has barred a contemplated reward for success to June, 1805, hostilities existed between the two nations. ful valor, I recommend to the consideration of Congress, It will also be remembered that, in 1813, and in 1814, we the equity and propriety of a general provision, allowing were at war with England. And the first cse to which in such cases, both past and future, a fair proportion of I would call the attention of the committee, will be found the value which would accrue to the captors on the safe in the third volume of the laws, p. 590. An act of Con- arrival and sale of the prize." gress was passed in March, 1804, for the relief of the These messages of the President speak a language captors of the Moorish armed ships Meshouda and Mir- which cannot be misunderstood. The law, as it existed, boha. Those vessels had been captured by the John was well understood; and he called for some general state. Adams, under the command of Commodore Rodgers, and tory provision to meet cases of a like character. The of the Philadelphia, then under the command of Com- Guerriere and the Java were, by orders, both destroyed modore Bainbridge. The vessels captured were in force they were so crippled by the action, that to bring theid inferior to the vessels making the capture. And the act into port was out of the question. But they were cap provides that the sum of $8,594 50, being one moiety of tured. And on the 3d of March, 1813, was passed, by the value of the armed ship Meshanda, captured by the Congress, an act, "That the President of the United frigate John Adams, and returned to the Emperor of States be, and he is hereby, authorized to have distribute, Morocco, be appropriated for the expense of prize money as prize money, to Captain Isaac Hull, of the frigate Com due to the captors; and that the sum of $5,000 be appro- stitution, his officers, and crew, the sum of $50,000, for the priated for defraying the expense of prize money due to capture and destruction of the British frigate Guerriere; the officers and crew of the frigate Philadelphia, being and the like sum, in like manner, to Captain Willa one moiety of the value of the armed ship Mirboha, cap- Bainbridge, his officers, and crew, for the capture and tured, and also restored to the Emperor of Morocco. destruction of the British frigate Java; and the sun f $25,000, in like manner, to Captain Jacob Jones, of the sloop of war Wasp, his officers, and crew, for the capture of the British sloop of war Frolic; and that the sum of $125,000, out of any money in the Treasury not other wise appropriated, be, and the same is hereby, appropria ted, for the purposes aforesaid." Here, then, is an act of Congress, passed in less than four years after the prize act, which gives the very construction to the prize act for which I have contended. The captured vessels were disposed of by order of this Government. There was of course no judicial proceed ings; the captures vested in the captors the right to one half of their value according to the prize act. That right Mr. Chairman, could cases be conceived comparing was expressly recognised by the act of Congress, and pro- more directly, in policy and in principle, with the case vision thereby made for the due compensation of the cap- before us? On what ground was $100,000 taken from tors. But these are not the only cases on record, grow your national treasury, and distributed as prize money? ing out of the war with the Barbary Powers. On the 27th Yes, sir, as prize money, among the captors of the Guer of April, 1816, Congress passed an act "That the sum of riere and of the Java. Clearly not on account of the one hundred thousand dollars be, and the same is hereby, condemnation of those vessels--not on account of those appropriated, to be paid out of any money in the Treas- vessels having been sold in pursuance of the order of or sury not otherwise appropriated, and distributed in the Court of Admiralty. The act which has been read to the same proportions, and under the same regulations, as prize committee declares that this amount shall be appropriated money is now by law directed to be distributed, among and paid, for what? For the capture and destruction of the captors of the Algerine vessels captured by the Ameri- the Guerriere and of the Java." And it declares further, can squadron under the command of Commodore Decatur, that this same amount shall be distributed among the cap and afterwards restored to the Dey of Algiers." tors as "prize money." The entire proceeding of C Here, then, is another case not coming within the letter gress is predicated upon the capture of the Guerriere and of the prize act. If it had, no legislation of Congress of the Java, by the officers and crews of the Constitutiv would have been necessary, but a case coming clearly The moment that our brave commodores, by the skill and within the scope and policy of our prize system. the valor so signally displayed on those occasions, caused But cases are to be found, Mr. Chairman, still more the flag of their enemy, and of their country's enemy, to directly in point, and to which I must refer the committee. The following is an extract from the annual message of President Madison, November, 1812: "The frigate Constitution, commanded by Captain be struck, that moment the right and the interest in the |