captors; and when of inferior force, shall be divided equally between the United States and the officers and men making the capture." Similar provisions are found in the act of June 28 1798, (vol. 3,U. S. Laws, pp. 71,72.) The principle, it is believed, has always ootained. It is true that these provisions are made with reference to the navy of the United States, or the public armed vessels of the nation. But the reason upon which that policy is founded, is still more manifestly apparent in the case of captures thus made by the unaided means, skill, enterprise, and courage of individual citizens. The United States, in this class of cases, furnishing no portion of the force, incurring no part of the risk, and being in no wise the meritorious cause of the capture, can, in justice, claim no part of the proceeds. Nor is this rule, thus modified, without the sanction of Congress. An express recognition of it may be found in the acts of June 25, 1798, (3d vol. U. S. Laws, p. 69, sec. 2,) and of 26th June, 1812, (4th vol. U. S. Laws, p. 450, sec. 4,) and in the acts of March 3, 1813, (4th vol. U. S. Laws, p. 518,) of August 2, 1813, (vol. 4, Laws U. S., pp. 625 and 656;) and in other acts, the principle is carried so far as to require the payment to individual citizens of a bounty for the destruction of vessels of the enemy, and a bounty for prisoners taken, out of the public treasury. No doubt, then, it is believed, will be entertained, but that it accords with the ordinary jurisprudence of the country and with the whole course of its legislation, to concede to the captors, in such a case as this, the entire proceeds of the prize. But it may be objected, that this case has been actually ad judicated upon, and the proceeds of the capture disposed of according to the provisions of the revenue laws-the one moiety having been paid, some thirty years ago, into the treasury of the United States, and the other moiety distributed between the collector (Mr. Hook,) and those who assisted at the capture, and perhaps to others. Such an objection, so far as relates to such individuals as may have received distributary shares of the proceeds of the capture, your committee think is entitled to much consid

eration.

It would be of dangerous consequence if Congress were to attempt to disturb that distribution, so long ago inade-made, probably, under the sanction of the Government for the time being. And even if it were of less injurious or less doubtful policy, it would not probably be deemed competent for Congress thus to interfere. Fortunately, perhaps, for the memorialist, even on this point there are "precedents on file." The case presented to Congress in 1814, and which resulted in "An act for the relief of David Porter, and his officers and crews, was in some respects analogous to this. (See vol. 4, Laws U. S., p. 683.) Decrees of condemnation had been rendered in like manner; but, by the law referred to that portion only of the proceeds of the captures made, which had accrued to the United States, was directed to be relinquished and paid over to, the captors. So in the case of the captures made near the island of Barrataria, in September, 1814, by Colonel George F. Ross and Captain Daniel Patterson; "so much of the net proceeds of the forfeiture and penalties, not exceeding $50,000, as accrued to the United States, by the decree of condemnation rendered for a violation of the laws of the United States," was directed to be paid over to the captors-(see vol. 6, Laws U. S., pp. 118, 171)-leaving, in both cases, such distribution as may have been made to individuals, under color of the revenue laws, undisturbed; thus furnish

ing precedents strongly enforcing the general principle, and at the same time illustrating the exception. Assuming, then, that the principal facts in this case are sufficiently established, and that, with the limitations herein above explained, it accords with past usages of the Government in similar cases to grant the relief prayed for, it remains next to consider how far justice to the memorialist requires it. To arrive at a proper conclusion on this point, it is very necessary to have regard to the condition of the country at the time and place where the transactions alluded to occurred. It is not the desire of your committee, nor would it be appropriate, to crowd into this report any unnecessary matter of historical detail; but it may not be improper to call to the recollection of the Senate, that at the period alluded to Castine was in the possession of the enemy; his vessels of war were hovering over the coasts, and in great force commanding the bay. What his ulterior intentions may have been, is left, perhaps, in some sort, to conjecture; but, cut off as he was, from direct intercourse with the interior, it was of the utmost importance to intercept also his supplies, and to diminish his resources, in their progress up the bay. Fully and completely to accomplish that end, a superior naval force was undoubtedly requisite. But such a naval force the Government had not then, at that point, in its control. In such circumstances, what resource remained but that which was to be sought for in the adventurous enterprise, the active vigilance, the hardy courage, and the ardent and devoted patriotism, of its unsupported individual citizens? There was no other. And happily for the country, and for the honor of its people, that resource, in such an exigency, did not fail! Many there doubtless were, who, on that memorable occasion, were distinguished by their devotion to their country, and by their brave and gallant bearing; but among them, none seemed more conspicuous than Noah Miller. Alfred Johnson whose affidavit is appended to this report, testifies of him, that "Major Miller was a very active officer of the militia, and signalized himself as an efficient partisan, and a vigilant observer of the movements of the enemy in our vicinity; and it is my opinion, that no one person in this quarter was oftener mentioned as a brave and useful friend of his country during that war. About one year, according to my best recollection, he was in the actual service of the United States as a captain of volunteers; and, after the expiration of this service, it was understood-and I have no reason to doubt it—that he was in the revenue department of the Government—in what capacity, or whether officially or as a volunteer, I cannot say-and assisted to prevent an illicit intercourse with the enemy. He received a wound in a personal rencounter, growing out of his said employment.During the war he made a capture of a valuable vessel and cargo, attempting to introduce goods of the enemy into this country; and, in doing this, it was at the time the general opinion that the said capture was made by him as a private citizen, at his own risk, responsibility, and expense.'

William P. Preble, esq., who, as district attorney of the United States, conducted the prosecution which resulted in the condemnation of the captured vessel, and whose deposition is also hereto appended, thus testifies of the memorialist: "I well remember said Miller was in those days distinguished for his zeal and activity (after I knew him) in carrying on a partisan warfare against the enemy and the contraband trade carried on with them in that quarter, while the British forces were in possession of Castine."

And in respect to the capture he made, he says: "I further depose and say, that it was well understood and notorious that said Mary and cargo were in fact captured and seized by Major Noah Miller, who, having discovered the vessel from the shore, put off in a boat with a small crew, and took possession of her, and brought her into Camden; and that the capture was wholly due to the activity and enterprise of said Miller and his assistants. I further depose, that I well remember it was understood at that time that said Miller met with a good deal of difficulty in securing the property after its capture, and that it was wholly owing to his active exertions, aided by his boatien, that the property was removed to a place of safety; and that, if it had not been so removed, it would have been rescued by the enemy's armed forces then in the vicinity. I have since understood, and now fully believe, that said Miller, in making said capture, and securing said property, acted solely from his own promptings, and in no respect under the authority and instructions of Mr. Hook, the collector."

Mr. Preble, in a subsequent communication, again says: "The act of the capture was an act of Miller's own devising and enterprise, unprompted by any one, and unaided by any one except his boat's crew. Miller continued afterwards in the United States service as inspector, and until our troubles of that period ceased, and was very active, vigilant, and enterprising, and no min did better service than he. He was the terror of smugglers and traders with the enemy. More than once he barely escaped with his life; so that it became necessary to caution him to be less venturesome and daring." These extracts are made for the purpose of vindicating the character of the memorialist, and the nature of the important services he rendered.

A more minute examination of the proofs will sufficiently demonstrate, that in respect to the particular transaction upon which his application is founded, the conception of the plan, and the enterprise itself, were all his own; the risk and the danger of its execution were emphatically his; and he alone was originally responsible for the entire expense. With what skill, and perseverance, and gallantry, the enterprise was accomplished, also appears. If, by such exploits, the public enemy were more straitened in their quarters-if they were harassed by repeated alarms-if their supplies were cut off, or their resources diminished-these and all other military advantages resulting from them belonged to the country, and the country has received them. But it is not perceived on what principle of natural justice this memorialist should be deprived of the pecuniary fruits of his own, his individual and voluntary enterprise—an enterprise conceived in boldness, and executed with consummate address, and at great peril of life. "The laborer," it is said, "is worthy of his hire." And this govrernment, whose strength consists in the affections of the people, and in the confidence which they have in its liberal justice, should be the last to render itself justly obnoxious to the imputation of "reaping where it has not sown, and gathering where it has in no wise strewed."

It is not only just, then, your committee venture respectfully to say, that whatsoever has accrued to the national treasury solely by reason of the individual efforts, skill, and gallant conduct of the memorialist, should be returned to him, but wise, also, and in accordance with the dictates of the soundest policy. Incentives to patriotism and to virtue cannot be too much multiplied; nor is anything unimportant which may in future affect the character or moral sentiment of the nation. What lustre has been reflected

upon the national character by those individual acts of intrepidity, so bold in design, so skillful and so perilous in their execution, which, when the pressure of war was upon us, have sometimes illustrated the career of those in private life, as well as adorned the characters of those in the public employ! It is fit that they should be brought out in bold relief, and inscribed on the public archives! And who that values inflexible patriotism and incorruptible integrity, looking forward to the future, would desire to see that page torn from our history, which records that honors were awarded, and pecuniary rewards were given, to such men as Paulding, Williams, and Van Wert? In short, it seems to result that justice, the past practices of the government, and a wise and sound policy, all tend to sustain the principle upon which the application of the memorialist is based. But there are yet difficulties which embarass greatly the further progress of the committee towards a just and satisfactory conclusion.

No doubt, it is believed, can exist, but that the enterprise which resulted in the capture of the Mary, and of the clothing and supplies for the British troops at Castine, and the other articles of British merchandise on board, originated exclusively with the memorialist. No doubt is entertained but that he alone hired the small boat which was employed in the capture; and that he alone, and on his own account hired, on stipulated wages, the men employed in the operation. It was he who became insurer against the risk, and he alone who became personally responsible for the payment of the men, and the hire of the boat; and that responsibility, it is presumed, he faithfully discharged. It is very plainly inferable, also, from the exhibits, that in addition to their stipulated wages, the men so employed by the memorialist, and a Major Ulmer, (of whom respectful mention is made in the exhibits, and who was taken on board of the prize after her capture, in order that she might be more safely and more certainly conducted into Camden,) received, out of the proceeds of the capture a thousand dollars or more, each, as their proportion, respectively, of the proceeds which were distributed. But it is urged, in behalf of those men, if it should be the opinion of Congress that the memorialist receive any part of that moiety which was paid into the national treasury, that then they ought, respectively, to receive some suitable proportion of it also. When expeditions of this sort have heretofore, in time of war, been undertaken and fitted out solely by individual and private means, and such expeditions have resulted in making prize of the vessels of the enemy, it is believed to have been the policy of the law to leave the distribution of the proceeds of the prize to be determined by such contract or agreement as may have been made by the undertaker with the men he employs. But it no contract exist between them in this regard, then it is supposed to have been the policy of the law to require that those proceeds should be distributed according to the rule of proportion adopted in the naval service of the United States. In this case your committee are not satisfied that any claim is justly and fairly made out, except that of the memorialist; and yet, in the view of the supposed rule of policy alluded to, they are not prepared to say that none can exist. And they do not desire, by anticipation, and by a proposed disposition of the whole fund, to preclude it.

The present application seems to have been before Congress for many years. And in the one or the other House, several reports, all of them in favor of the claim, are said to have been made upon it. But so far as your

committee are advised, no final action has, in either House, been had upon it. In February, 1838, the subject was very elaborately discussed, in a report made by the Committee on Commerce of the Senate, and the justice of the claim very strongly urged. During the last session of the Senate the memorial was again referred to the same committee, and that committee adopted, in extenso, the report alluded to of 1838, and introduced a bill in accordance with it; but that bill was not finally acted upon.

And now a rumor exists, (of the truth of which, however, your committee have no knowledge,) that the memorialist is dead. But if the fact be so, it can hardly be considered as requiring any other change in the action of the Senate upon it, except that of so shaping its legislation as that the legal representatives of the memorialist may be enabled to receive whatsoever sum shall be appropriated. The justice of the claim will be the same, the policy of allowing it the same, and the moral and political right of the government to retain the money it has so received can be in no wise strengthened by that event.

The bill reported to the Senate in 1838, and recommended to its favor by its committee, purported to award to the memorialist ten thousand dollars, that sum being less than one-third of that part of the net proceeds of the capture which went into the national treasury. The Committee on Commerce, to which the memorial wasi referred during the last session of the Senate, recommended the appropration of the same sum.

And although it may not comport fully with the grounds assumed by your committee, and the reasoning which they have endeavored, in this report, to enforce, to limit the proposed appropriation to so small a part of the money which has been paid over to the government in consequence of the capture, yet, in view of the difficulties herein before adverted to, and not uninfluenced in this regard by the concurring opinions heretofore expressed by the committees to which the subject had been at different times referred, they have deemed it expedient again to recommend the appropriation of

the same sum.

In conformity with this determination, they accordingly herewith present a bill, and respectfully recommend it to the favorable consideration of the Senate.

Noah Miller is now deceased, and the bill reported is for the relief of his legal representatives, and others interested therein, to be paid in such proportion to each as the Secretary of the Treasury shall determine.

No. 1.

I, David Alden, of Northport, in the State of Maine, do testify and say: That, sometime in the month of November, in the year 1814, I was on the shore of Penobscot bay, in said town of Northport, about twelve miles from Castine. I saw a boat board a sloop in the bay. Directly after they stood in for the land where I then was, and when they had got near the shore, the boat came on shore, and I found the commander of the boat to be Major Noah Miller, of Northport, and he had two Englishmen with him. One of them said he was the supercargo of the sloop; and he called me one side, and offered me one thousand dollars if I would persuade Major Rep.-1*