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in question was not taken in the enemy's camp, towns, forts, or magazines) might not have afforded a legal basis for the prosecution: but no fair deduction from it certainly can ever be carried as far as to show, that because the property captured was not expressly required by this article to be secured for the United States, therefore it must be regarded as the private property of the captor. Whether it be so or not, must depend on established principles, and not on so very strained an implication, and these have already been sufficiently examined. As to the laws of the United States respecting property captured by the public force, the most material is the act of the 23d April, 1800, for the better government of the Navy. is act gives to the captors the proceeds of vessels and goods taken on board of them when adjudged good prize. But this act is a law expressly for the government of the Navy of the United States— and, indeed, it does not appear to be contended, that it can by any rule of construction, be extended to the army. Private commissioned vessels, in like manner, deserve their right to appropriate to thesmelves the prizes they make, from the “act concerning letters of marque, prizes, and prize goods,” passed on the 26th day of June, 1812. This act, after stating the conditions on which authority should be given to our vessels to capture the vessels and property of the enemy, proceeds to vest the same, when taken under such authority, in the owners, officers and crews of the vessels by which prizes should be made. (Laws U. S. Vol. 11, p. 240.) Had it been the intention of the government that non-commissioned vessels should be entitled to the proceeds of prizes made, or that any persons in the employ of the United States, and not belonging to the navy or marines, should be entitled to the benefit of all enemy's property taken by them ; if it would surely have been natural that such intention

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should have been expressed in these or some other legislative acts. Moreover, indeed, it does not apear what occasion there could be to provide reguso and bonds for the government and good conduct of vessels applying for commissions to make prizes; if all vessels of any description were authorized to take and to appropriate to their own use, the roperty of the enemy, merely because, as it hath É. contended, the fortune of war had thrown it in their way. It has been stated that a case occurred in New England soon after the war commenced, where a vessel, which had approached near to a fort of the United States, was condemned for the benefit of the troops by whom it was captured; and it is likewise urged that libels have been filed in behalf of military captors in the federal court of the state of Louisiana. As to the former case, it is only stated on a recollection, which I cannot help believing to be in this instance somewhat inaccurate: and as to the latter, how much soever it may afford a precedent sufficient to justify a practitioner at the bar in putting in a claim; it can afford no precedent to justify a court in sustaining it. In the whole view of the case, therefore, now before the court, it is adjudged and decreed, that the plea be over-ruled and dismissed, with costs in court occasioned by the plea, and that the schooner Active and cargo be condemned as good and lawful prize to the United States.

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INDEX

TO

THE FIFTH VOLUME.

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Note. The Table and the Summary of Contents prefixed to the Ar-
guments of Mr. Jefferson and Mr. Livingston, are so exact and minute,
as to supercede the necessity of any notice of those papers in this Index.

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Acts of Congress, quoted or explained.
6th July, 1798. Aliens - - - 316

12 Dec. 1812. Army, Arrest - 474
28 Feb. 1795. Militia - - 476, 537
26 June, 1812. Prizes, Slaves - 459
2d Mar. 1807. Slaves - 461
24th Sept. 1789. State Laws - - 502
Legislature of Pennsylvania,
1st Nov. 1780. Slaves - - 465
29th Mar. 1788. - - ib.

12th Mar. 1812. Insolvents - - b02
Tennessee, 1805, ch. 11 Possession - - 339
1783, ch 2. County Warrants - 353
North Carolina, 1778, ch. 3. Boundaries, Treaty - 342

1812, Non-Execution Law - 520
Georgia, 1795, 1796, Yazoo Lands - - 304
Virginia, Court Martial - - 536
Maryland, Feb. 1777, Toryism - - - 481
Jan. 1814, Habeas Corpus 486
Council of Vermont,
Oct. 1814, Constitution of U. S. - 495

Council of Revision of New York—Raising Troops, 540
Action, right of, see WARRANTY.
Allens; an alien enemy who refuses to remove under the act
of July, 1798, may be imprisoned by the marshal until |

his removal can be effected - - - - 301
Almeida, v. Slaves, decision of Judge Drayton, - 459
Bank of Columbia, v. Patterson, opinion of the court, - 489
Bolton's case, opinion of the court, - - - - 476
Constitution of the U.S. quoted or explained,
a. 1. s. 10. - - - - - 455, 522

a. 1. s. 8. - - - 477, 405

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