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No commander of a fleet or squadron shall be entitled to receive any share of prizes taken by vessels not under his immediate command; nor of such prizes as may have been taken by ships or vessels intended to be placed under his command, before they have acted under his immediate orders; nor shall a commander of a fleet or squadron, leaving the station where he had the command, have any share in the prizes taken by ships left on such station, after he has gone out of the limits of his said command.(1)
2580. A bounty shall be paid by the United States, of twenty dollars, for each person on board any ship of an enemy at the commencement of an engagement, which shall be sunk or destroyed by any ship or vessel belonging to the United States of equal or inferior force, the same to be divided among the officers and crew, in the same manner as prize money.(2)
2581. When any vessel, other than a vessel of war or privateer, or when any goods which shall hereafter be taken as prize by any vessel, acting under authority from the government of the United States, shall appear to have before belonged to any person or persons, resident within, or under the protection of, the United States, and to have been taken by an enemy of the United States, or under authority, or pretence of authority, from any prince, government, or state, against which the United States have authorized, or shall authorize, defence or reprisals, such vessel or goods not having been condemned as prize by competent authority before the recapture thereof, the same shall be restored to the former owner or owners thereof, he or they paying for, and in lieu of, salvage, if retaken, by a public vessel of the United States, one-eighth part, and if taken by a private vessel of the United States, one-sixth part, of the true value of the vessel or goods so to be restored, allowing and excepting all imposts and public duties to which the same may be liable. And if the vessel so retaken shall appear to have been set forth and armed as a vessel of war, before such capture, or afterwards, and before the retaking thereof, as aforesaid, the former owner or owners, on the restoration thereof, shall be adjudged to pay for, and in lieu of salvage, one moiety of the true value of such vessel of war, or privateer.(3)
When any vessel or goods, which shall hereafter be taken as prize, by any vessel acting under authority from the government of the United States, shall appear to have before belonged to the United States, and to have been taken by an enemy of the United States, or under authority, or pretence of authority, from any prince, government, or state, against which the United States have authorized, or shall authorize, defence or reprisals, such public vessel not having been condemned as prize by competent authority before the recapture thereof, the same shall be restored to the United States. And for and in lieu of salvage, there shall be paid from the treasury of the United States, pursuant to the final decree which shall be made in such case, by any court of the United States having competent jurisdiction thereof, to the parties who shall be thereby entitled to receive the same, for the recapture as aforesaid, of an unarmed vessel, or any goods therein, one-sixth part of the true value thereof, when made by a private vessel of the United States, and one-twelfth part of such value when the recapture shall be made by a public armed vessel of the United States; and for the recapture, as aforesaid, of a public armed vessel, or any goods therein, one moiety of the true value thereof, when made by a private vessel of the United States, and one-fourth part of such value when such recapture shall be made by a public armed vessel of the United States.(4)
1) Act 23d April, 1800, sec. 6. Ibid. sec. 7.
(3) Act 3d March, 1800, sec. 1.
Ibid. sec. 2.
When any vessel or goods which shall be taken as prize, as aforesaid, shall appear to have before belonged to any person or persons permanently resident within the territory, and under the protection, of any foreign prince, government, or state, in amity with the United States, and to have been taken by an enemy of the United States, or by authority, or pretence of authority, from any prince, government, or state, against which the United States have authorized, or shall authorize, defence or reprisals, then such vessel or goods shall be adjudged to be restored to the former owner, or owners thereof, he or they paying, for and in lieu of salvage, such proportion of the true value of the vessel or goods so to be restored, as, by the law or usage of such prince, government, or state, within whose territory such former owner or owners shall be so resident, shall be required on the restoration of any vessel or goods of a citizen of the United States, under like circumstances of re-capture, made by the authority of such foreign prince, government, or state; and where no such law or usage shall be known, the same salvage shall be allowed as is provided by the first section of this act: Provided, That no such vessel or goods shall be adjudged to be restored to such former owner or owners, in any case where the same shall have been before the recapture thereof, condemned as prize by competent authority, nor in any case, where, by the law or usage of the prince, government, or state, within whose territory such former owner or owners shall be resident as aforesaid, the vessel or goods of a citizen of the United States, under like circumstances of recapture, would not be restored to such citizen of the United States: Provided also, That nothing herein shall be construed to contravene, or alter, the terms of restoration in cases of recapture, which are, or shall be, agreed on in any treaty between the United States and any foreign prince, government, or state.(1)
2582. All sums of money which may be paid for salvage, as aforesaid, when accruing to any public armed vessel, shall be divided to and among the commanders, officers, and crew, thereof, in such proportions as are or may be provided by law, respecting the distribution of prize money: and when accruing to any private armed vessel, shall be distributed to and among the owners and company concerned in such recapture, according to their agreements, if any such there be; and in case there be no such agreement, then to and among such persons, and in such proportions, as the court having jurisdiction thereof shall appoint.(2)*
(1) Act 3d March, 1800, sec. 3.
(2) Ibid. sec. 4.
*Salvage is a compensation for actual service rendered to the property charged with it. It is demandable of right for vessels saved from the enemy or from piTo support a demand for salvage, two circumstances must occur; the tak ing must be lawful, and there must be a meritorious service rendered to the recaptured. But it is not necessary that the means used to produce such service should have been used with that sole view.-The Alerta. Talbot v. Leeman, 1 Cr. 23.
Though it be a general rule, founded exclusively on the supposed safety of a neutral vessel, that she is to be restored by a recaptor, without salvage, yet if such vessel be liable to condemnation in the courts of the belligerent by whom she is captured, salvage is due upon recapture.-The Alerta. Talbot v. Leeman, 1 Cr. 28. Murray v. The Charming Betsey, 2 Cr. 64, 121.
To entitle to salvage, it is not necessary that the loss should be inevitable; it is sufficient that the danger be real and imminent.-Talbot v. Leeman, 1 Cr. 42.
By the salvage act of March, 1800, the cargo pays the same rate of salvage as the vessel, if recaptured by a public ship; but if recaptured by a privateer only onesixth part is allowed for salvage upon the recapture of the cargo in an armed vessel, although one-half be allowed for the recapture of the vessel.—The Adeline, 9 Cr. 244, 287.
By the foregoing act, as by the general maritime law, the rule of reciprocity is to be applied to recaptures of the property of friends. If the law of the friendly nation would restore in the like case, the United States is bound to restore; if otherwise, the whole property must be rendered to the recaptors.-The Star, 3 Wheat. 91, 92.
If a merchant vessel of the United States be captured by the enemy, be condemned and sold to a subject of the enemy, and be afterwards recaptured by a private armed vessel of the United States, the former owner is not entitled to restitution on payment of salvage; the sentence of condemnation by the general maritime law having extinguished the title of the original proprietor.-Ibid.
OF CRIMINAL OFFENCES AND THEIR PUNISHMENT.
ART. 2583. The courts of the United States have no common law jurisdiction in criminal cases. To give them jurisdiction over an act done in supposed violation of the peace and dignity of the sovereign power, the legislature must declare such act a crime, affix a punishment, and designate the court that shall have jurisdiction of the offence.(1)
Offences therefore which may be prosecuted criminally, are such as are against the constitution and statutes of the United States; and are either against the state or against individuals.
For constitutional provisions relative to crimes and their punishinent, see articles 69-81-82.
ART. 2584. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.(2)*
(1) U. S. v. Hudson & Goodwin, 7 Cr. 32.-U. S. v. Worrall, 2 Dall. 384, Chase's Opinion.-U. S. v. Coolidge, 1 Wh. 416.-U. S. v. Gill. 4 Dall. 426.U. S. v. Burr, 4 Cr. 501.-U. S. v. Bevans, 3 Wh. 336.-U. S. v. Wiltberger, 5 Wh. 76. Sed see contra, U. S. v. Hen
field, 1 Waite's state papers, 85, 86, 143.
U. S. v. Ravara, 2 Dall. 297.-U. S. v. Worrall, 2 Dall. 384.-U. S. v. Williams, 4 Hall's Law Journal, 361.-U.S. Coolidge, 1 Gall. 488, 502. (2) Con. Art. 3, sec. 3, cl. 1.
The term "levying war," has that sense in the constitution which it was understood in England and this country to have in the stat. 25 Edw. III., from which it was borrowed. Hence an assemblage of men, designing a treasonable purpose, such as war against the government, or revolutionizing any of its territories, and in condition to make such war, constitutes a levying of war. To "levy war," is to raise, create, make or carry on war. War can be levied only by the employment of actual force; troops must be embodied, men must be openly raised; but neither arms nor the actual application of the force to the object, are indispensably requisite.-U. S. v. Burr, 4 Cr. 471, 476, 481, 487, 488. Ex parte Bollman & Swartwout, 4 Cr. 75. U. S. v. Fries, Trial, 167.
2585. If any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States, or elsewhere, and shall be thereof convicted on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death.(1)*
2586. If any person or persons, having knowledge of the commission of any of the treasons aforesaid, shall conceal, and not, as soon as may be, disclose and make known the same to the president of the United States, or some one of the judges thereof, or to the president or governor of a particular state, or some one of the judges or justices thereof, such person or persons, on conviction, shall be adjudged guilty of misprison of treason, and shall be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars.(2)
(1) Act 30th April, 1790, sec. 1.
(2) Ibid. sec. 2.
The travelling of individuals to a place of rendezvous, separately or together, but not in military form, is not a levying of war; but the meeting of particular bodies of men, and their marching from places of partial to a place of general rendezvous, is such an assemblage as constitutes a levying of war.-Ibid. Ibid.-U. s. v. Burr, 4 Cr. 485.
The levying of war is an act compounded of law and fact, of which the jury, aided by the court, must judge.-Ibid. 506.
To march in arms with a force marshalled and arrayed, committing acts of violence and devastation in order to compel the resignation of a public officer, and thereby to render ineffective an act of congress, is high treason.-U. S. v. Vigol, 2 Dall. 346.-U. S. v. Mitchell, 2 Dall. 348 to 356.-U. S. v. Fries, 196.
When war is levied, all those who perform a part, however minute or remote from the scene of action, being leagued in the general conspiracy, commit treason. Thus a commissary of purchases or a recruiting officer who never saw the army, are guilty of treason in executing their offices.—Ex parte Bollman & Swartwout, 4 Cr. 75.-U. S. v. Burr, 4 Cr. 473.
Every one concerned in a treasonable conspiracy, is not constructively present at every overt act of the treason committed by others, not in his presence.-Ibid. 490. And in consideration of law, a man may be absent who counselled or procured the treasonable act.-Ibid. 491. And a person is not constructively present at an overt act of treason unless he be aiding and abetting at the fact, or ready to afford assistance if necessary.-Ibid. 492 & seq.
If one advise, procure or command an overt act of treason, he is guilty accessorily, and not directly as principal.—Ibid. 494.
The conviction of some one who has committed the treason, must precede the trial of him who has advised or procured it. And a prisoner does not waive his right to call for the record of such conviction, by pleading to the indictment.— Ibid. 502.
A conspiracy to levy war is not treason-Ex parte Bollman.-Ibid. 126; nor is a secret unarmed meeting of conspirators, not in force nor in warlike form, though met with treasonable intent-U. S. v. Burr, 4 Cr. 486; nor the actual enlistment of men to serve against the government.-Ex parte Bollman, 4 Cr. 126. But these offences are high misdemeanors.-Ibid. 126, 128.
The confession of the defendant before a magistrate out of court, is not sufficient to convict of treason; but after the overt act of treason has been proven by two witnesses, such confession is evidence by way of corroboration.-United States v. Fries, Trial, 171.