termined by its shipment, that the same cannot be trans- THE ferred in its transit, but, as respects belligerent rights, SCHOONER must be considered as remaining the same as at the time ADELINE. of shipment, applies only to enemy property. Dancke-baar Africaan, 1 Rob. 90. Amer. Edit. -the Vrow Margaretha, 1 Rob. 285, Amer. Edition.

But the claims objected to will be found, on examination, to agree with those which are in common use in the admiralty Courts of England, even in cases where the property is captured as prize of war. The Fortuna, 2 Rob. in the appendix, 313. It is sufficient to assert property in the Claimants and to negative the allegation of title in the enemy at the time of capture. Those claims and test affidavits are testimony in a prize cause, and will be deemed satisfactory, unless there is some evidence in the ship's papers or preparatory examinations to invalidate them. See the duke of Newcastle's letter in the appendix to Chitty. 6 Rob. 55, the Haabet.

But to proceed to the merits of this case. Upon examining the libel of the captors, the first enquiry will be, whether this property could be captured as prize, for it has been so libelled.

The commission to our private armed vessels, under the act declaring war, authorizes the re-taking of property captured which was originally American. The property thusre-taken can only present a case of salvage, because the title of the original proprietors never has been divested; and that equally whether the property was originally American or neutral.

The interest of the captured property does not vest in the captor until after final adjudication. 5 Rob. 167, Am. Edit. the Elsebe- sect. prize act, 11th vol. United States laws. And the fifth section of the prize act provides, " that all vessels, goods and effects the property of any citizen of the United States, or of persons within and under the protection of the United States, or of persons permanently resident within and under the protection of any foreign prince, government or state in amity with the U. States, which have been captured by the enemy and which have been re-captured by vessels commissioned as aforesaid, shall be restored to the rightful owners, upon

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THE payment by them respectively of a just and reasonable SCHOONER salvage, to be determined by the mutual agreement of the ADELINE. partięs concerned, or by the decree of any Court having competent jurisdiction, according to the nature of each case, agreeably to the provisions heretofore established by law."

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The present case, then, before the Court determines itself to be a case of salvage, if there was a right to recapture, and if the service rendered was meritorious. The right is not questioned, for the re-capture was from the enemy; nor is the service questioned, for the property would have been otherwise lost.

It becomes however a matter of enquiry, whether the re-captors under their present libel can have a decree for salvage. The papers taken from on board the vessel and the examina ions in preparatorio proved that the recaptured vessel was an American vessel, and that her cargo was in part American and in part French. It was evident, therefore, that the re-capture could only present a case of salvage; and as such the vessel and cargo should have been libelled. But the libellants have proceeded against the property as prize of war, and have asserted title to it as such in all their allegations. Must they not make out those allegations, and, if they fail, can they, as a last resort, seek for salvage, when such has not been prayed for in their libel, nor in any manner spread upon the record before this Court?

But if the Court should be of opinion that a decree for salvage can be made upon the libel, claims and disclosures in this record, then the only question will be the amount of this salvage. The re-captors contend for a moiety, and we, that they should have but a sixth. Which is right must depend upon a just construction of the act in cases of re- apture, passed 3d March, 1800, 5 vol. U. States laros, 38-1 Graydon, 418.

The first branch of the first section of this act provides that a re-captured vessel, other than a vessel of war or private armed vessel, shall be restored, on payment of one eighth, (if taken by a public armed vessel,) of the value of the re-captured vessel and cargo; and if ⚫re-taken by a private armed vessel, of one sixth."

The second branch of that section provides "that if THE the re-captured vessel shall appear to have been set forth scnOONER and armed as a vessel of war before such capture, or ADELINE. afterwards and before the re-taking, the salvage shall be one moiety of the true value of such vessel of war or privateer."

The act contemplates two descriptions of cases as to vessels, viz. armed and unarmed; the former are to pay a moiety, the latter a sixth. The law having settled the amount the Court when it ascertains what the law is, will adhere to the provision. Now the construction must depend on the evident meaning and intent of the legislature, as clearly to be gathered from a view of the whole provision; and it may be adopted as a fundamental rule, that where there is an express provision, there shall not be a provision by implication; expressio unius est exclusio alterius.

The first clause provides for the case of unarmed vessels and goods. It commences by stating "that when "any vessel unarmed, or when any goods." (not on board such vessel, but wholly in the disjunctive.) when any goods (reaching any and every case of goods) when any such are captured by a private armed vessel, one sixth shall be allowed. It proceeds throughout the whole clause in the disjunctive, saying that such vessel or goods shall be restored on payment of one sixth as salvage.

The second clause is studiously confined to vessels, "and if such vessel" (passing by goods altogether and leaving the general provision for goods unimpaired,) and if such vessel is armed, then one moiety of the true valne of such vessel is to be allowed; repeating and carefully confining the provision to the vessel, and that, too, with a peculiar particularity. Congress in express words distinguish; they place private unarmed vessels and all goods re-captured on the same footing.

The fifth section of the prize act, laws of the United States, vol. 11, p. 240, § 5, declares that the above provisions are to regulate cases of salvage.

But it is contended that the intent of a statute is to be.

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THE

considered, that the design of the legislature is to be con SCHOONER sulted. I grant it, wherever there is any ambiguity in ADELINE. a statute. In such case it is the privilege and duty of

the Court to give a just construction. But this only holds in cases where there is great obscurity, not in cases where the provisions of the statute are clear and explicit. To hold that a Court can intermeddie with such provisions is to clothe the Court with legislative as well as judicial powers to authorize it to make laws instead of only expounding them.

It is laid down in Parker, 233, that where the words of a statute are express, plain and clear, they ought to be construed according to the genuine and natural signification and import, unless by such exposition a construction or inconsistency would arise in the statute by reason of some subsequent clause from whence it might be inferred that the intent of parliament was otherwise."

But it is said that from the provision contained in the second section of the statute we may gather, that it was the intent of the legislature to give a moiety of the goods on board a private armed vessel to the re-captor, as well as a moiety of the vessel. When we come to examine this section, which is thus pressed into the service of the first, we shall find that it relates entirely to the property of the United States which may be re-captured. It has no reference to the first section, it speaks of property of a different description, differently owned. In the last clause it provides, that if a vessel of war of the United States is recaptured by a private armed vessel, a moiety of any goods on board shall be allowed. The government, deeply interested in the preservation of our public vessels; the national character, deeply interested in the rescuing from the enemy our vessels of war and in not permitting them to exist as mementos of their triumph; the national prosperity, deeply interested in preserving to us the means of our own strength and in preventing the same from being added to that of the enemy; these are sufficient inducements for our government to make an extraordinary provision. The service is not rendered to an individual, it is rendered to the nation; it is more meritorious; feelings of patriotism more than of interest may have impelled to the performance of the

THE SCHOONER ADELINE.

duty; the danger was greater, the object more important; the recompense should therefore be encreased.

But the first and second sections of this statute are wholly independent. The first relates to the re-capture of private property either by our public or private armed vessels. The second relates to the re-capture of public property either by our public or private armed vessels. Each section is perfect in itself, and each independent of the other; neither requires the interposition of any Court to explain them.

"Wherever any words of a statute are obscure or doubtful, the intention of the legislature is to be resorted to in order to find the meaning of the words." Plowden 37, Wimbish v. Tailbois.

Where words of a statute are plain and positive, it is not the province of the Court to search after new constructions.

Justice Buller remarks in the case of Bradley & another v. Clark, 3 T. R. 201, that, with regard to the construction of statutes according to the intention of the legislature, we must remember, that there is an essential difference between the expounding of modern and ancient acts of parliament. In early times the legislature used to pass laws in general and in few terms; they were left to the Courts of law to be construed, so as to reach all the cases within the mischief to be remedied. But in modern times, great care has been taken to mention the particular cases in the contemplation of the legislature, and therefore the Courts are not permitted to take the same liberty in construing them as they did in expounding the ancient statutes."

But the provisions in this statute respecting salvage were not unadvised provisions hurried over without deliberation. Congress, in consequence of the partial war with France, had been called on to legislate repeatedly upon the subject.

The first provision was by statute 28th June, 1798, vol. United States laws, p. 154, sect. 2d. This is gen