The district courts have jurisdiction under the slave trade acts
to determine who are the actual captors under a state law made in
pursuance of the fourth section of the Slave Trade Act of 1807, c.
77, and directing the proceeds of the sale of the negroes to be
paid "one moiety for the use of the commanding officer of the
capturing vessel," &c.
In order to constitute a valid seizure, so as to entitle the
party to the proceeds of a forfeiture, there must be an open,
visible possession claimed and authority exercised under the
seizure.
A seizure, once voluntarily abandoned, loses its validity.
A seizure not followed by an actual prosecution or by a claim in
the district court before a hearing on the merits insisting on the
benefit of the seizure becomes a nullity.
Under the seventh section of the Slave Trade Act of 1807, c. 77,
the entire proceeds of the vessel are forfeited to the use of the
United States unless the seizure be made by armed vessels of the
navy or by revenue cutters, in which case distribution is to be
made in the same manner as prizes taken from the enemy.
Under the Act of the State of Louisiana of 13 March, 1818,
passed to carry into effect the fourth section of the Slave Trade
Act of Congress of 1807, c. 77, and directing negroes imported
contrary to the act to be sold and the proceeds to be paid
"one moiety for the use of the commanding officer of the
capturing vessel, and the other moiety to the Treasurer of the
Charity Hospital of New Orleans for the use and benefit of the said
hospital;"
no other person is entitled to the first moiety than the
commanding officer of the armed vessels of the navy or revenue
cutter who may have made the seizure, under the seventh section of
the act of Congress.
This is the same case which was reported in
18 U. S. 5 Wheat.
338. It was a proceeding against the vessel, and the negroes taken
on board of her under the Slave Trade act of 3 March, 1807, c. 77,
in which the vessel was condemned in the court below, and that
decree was affirmed on appeal by this Court. After the condemnation
of the vessel in the district court and before the appeal to this
Court, the negroes found on board of her were (under the 4th
section of the act of Congress and under an Act of the State of
Louisiana passed on 13 March, 1818, in pursuance of the act of
Congress) delivered by the Collector of the Customs for the port of
New Orleans to the Sheriff of the Parish of New Orleans for sale
according to law. A cross-libel was afterwards filed by the alleged
original Spanish owners claiming restitution of the negroes, which
was dismissed, and on appeal the decree affirmed by this Court. By
consent of all the parties in interest, the negroes were sold by
the sheriff, and the proceeds lodged in the Bank of the United
States, subject to the order of the court below. After the cause
had been remanded to the district court, a question arose in that
court respecting the manner in which these proceeds, as well as
those of the vessel and effects, were to be distributed and the
parties respectively entitled to them. Mr. Roberts, an inspector of
the revenue, claimed a moiety of the proceeds as the original
seizor or captor; Messrs. Gardner, Meade, and Humphrey,
respectively, made similar claims under subsequent
Page 23 U. S. 314
military seizures alleged to be made by them; and Mr. Chew, the
Collector of the port of New Orleans, conjointly with the naval
officer and surveyor of the port, filed a like claim as the true
and actual captors and seizors, who made the last and only
effectual seizure, and prosecuted the same to a final sentence of
condemnation.
Page 23 U. S. 315
It appeared by the evidence that Roberts, being employed as an
inspector in a revenue boat at the Balize, near the mouth of the
Mississippi,
Page 23 U. S. 316
on the 18th of April, 1818, boarded the vessel and declared that
he had seized her. He soon afterwards went on shore and put a
person on board to take charge of the vessel, which remained at
anchor opposite the blockhouse until 21 April, when Lieutenant
Meade, with six soldiers in a boat, went from Fort St. Philip, in
company with a custom house boat, and Mr. Gardner, an officer of
the customs, on board, took possession of the vessel and brought
her up under the guns of the fort. It appeared that Roberts
afterwards, came on board the vessel, but did not remain on board
until her arrival at the City of New Orleans, he having left her in
order to board another vessel in the river. On 21 April, Mr. Chew,
the Collector at New Orleans, acting on independent information
which he had received, sent an armed revenue boat with an inspector
of the customs down the river with instructions to seize the
vessel. On arriving at
Page 23 U. S. 317
Fort St. Philip, they found the vessel at anchor opposite the
fort with a sergeant's guard on board which had been placed there
by Major Humphrey, the commanding officer at the fort. The
inspector received from that officer the ship's papers, and took
possession of the vessel and negroes, the guard having been
withdrawn, and brought them up to the City of New Orleans.
Proceedings were commenced against the property at the instance of
Mr. Chew and the other officers of the customs, and though his name
was not inserted in the libel, the prosecution was conducted by him
until its final determination, and the other parties claiming as
captors, or seizors, did not intervene until after the decree of
this Court on the appeal in the original cause.
The court below pronounced a decree dismissing the claims of
Messrs. Roberts, Humphrey, Meade, and Gardner and allowing that of
the collector and other officers of the customs, and the cause was
brought by appeal to this Court.
Page 23 U. S. 319
MR. JUSTICE STORY delivered the opinion of the Court.
The case of
The Josefa Segunda, in which the present
controversy had its origin, is reported in the fifth volume of Mr.
Wheaton's Reports. It is only necessary to mention that after the
condemnation of the vessel in the District Court of Louisiana and
before the intervention of the appeal to this Court, the negroes
seized on board of her in pursuance of the act of Congress and the
act of Louisiana which will be hereafter commented on, were
delivered by Mr. Chew, the
Page 23 U. S. 320
collector of the customs, to the Sheriff of the Parish of New
Orleans to be sold according to law, and a few days afterwards a
new libel claiming the property of the negroes having been filed by
the Spanish owners (which was afterwards dismissed and on appeal
the dismissal confirmed by this Court) by consent of all the
parties in interest, the negroes were sold by the sheriff and the
proceeds lodged in the Bank of the United States subject to the
order of the district court. The question now in contestation
respects the manner in which the proceeds of this sale, as well as
of the sale of the vessel and effects, are to be distributed and
the parties who are entitled to them. Mr. Roberts, who is an
inspector of the customs, claims title as the original seizor or
captor; Messrs. Gardner, Meade, and Humphrey, make a like claim
under a subsequent military seizure made by them; and Mr. Chew, and
the surveyor and naval officer of the port of New Orleans a like
claim as the true and actual captors and seizors, who made the last
and only effectual seizure and prosecuted the same to a final
decree of condemnation.
Mr. Chew caused the original libel against the vessel to be
brought, and though his name is accidentally omitted in it as the
officer through whose instrumentality the seizure was made, yet it
is admitted, and indeed could not be denied, that he was the sole
responsible prosecutor of the suit until the final condemnation of
the vessel and the final dismissal of the second libel,
Page 23 U. S. 321
brought by the original Spanish claimants. The claims of all the
other parties now before the Court adverse to that of Mr. Chew have
intervened since the final judgment pronounced in the Supreme Court
in the cause.
The
Josefa Segunda was finally condemned under the
seventh section of the Slave Trade Act of 2 March, 1807, ch. 77. It
will be necessary to refer to the terms of that section at large,
because the question here respects as well the distribution of the
proceeds of the vessel, which must be made according to the rules
prescribed in that section, as of the proceeds of the sale of the
negroes, who were unlawfully brought into the United States, and in
the progress of the discussion it will materially aid us in the
decision of the latter to ascertain who, by the construction of
that section, are the captors entitled to the distribution of the
former.
The fourth section of the act of 1807 provides that
"Neither the importer nor any person or persons claiming from or
under him shall hold any right or title whatsoever to any negro,
&c., who may be imported or brought within the United States or
territories thereof in violation of this law, but the same shall
remain subject to any regulations not contravening the provisions
of this act which the legislatures of the several states or
territories at any time hereafter may make for disposing of any
such negro,"
&c. Accordingly the Legislature of Louisiana, on 13 March,
1818, passed an act avowedly to meet the exigency of this section,
which act, after
Page 23 U. S. 322
reciting the substance of the same section, proceeds to declare
that the Sheriff of the Parish of New Orleans is authorized and
required to receive any negro, &c., delivered to him in virtue
of the act of Congress until the proper court pronounces a decree
of condemnation, and after such condemnation it authorizes him to
sell such negro, &c., as a slave for life, and then declares
that
"The proceeds of such sale shall, after deducting all charges,
be paid over by the said sheriff, one moiety for the use of the
commanding officer of the capturing vessel, and the other moiety to
the Treasurer of the Charity Hospital of New Orleans for the use
and benefit of the said hospital."
There is no doubt that this act is not in contravention of the
intention of the act of Congress, for the sixth section contains a
proviso recognizing the validity of such a sale when made under the
authority of a state law.
Some objection has been suggested as to the jurisdiction of the
District Court of Louisiana to entertain the present proceedings
upon the ground that the distribution is to be made under this act
by the Sheriff of New Orleans. But upon a full consideration of the
act of 1807, we are of opinion that the objection cannot be
maintained. By the Judiciary Act of 1789, as well as by the express
provisions of the act of 1807, the district court has jurisdiction
over seizures made under the latter act. The principal proceedings
are certainly to be against the vessel and the goods and effects
found on board. But
Page 23 U. S. 323
the negroes are also to be taken possession of for the purpose
of being delivered over to the state governments according to the
provision of the act, and it is obvious that this delivery can only
be after a condemnation has occurred, since it is only in that
event that the state legislature can acquire any right to dispose
of them. The proviso in the seventh section that the officers to
whom a moiety of the proceeds is given on condemnation shall be so
entitled only in case they safely keep and deliver over the negroes
according to the laws of the states operates by way of condition to
the completion of their title, but does not import any requirement
that the delivery shall be until after the condemnation. On the
contrary, as by a decree of restitution of the vessel and effects
the claimants would be entitled to a restitution of the negroes,
the reasonable construction seems to be that they remain subject to
the order of the district court as property in the custody of the
law, though in the actual possession of the seizing officers. The
possession of the latter is the possession of the court as much in
respect to the negroes as the vessel and cargo, and it must remain
until the court, by pronouncing a final decree, directs in what
manner it is to be surrendered. In the present case, the negroes
were sold and the proceeds substituted for them were in the custody
of that court. It was therefore authorized to deliver them over to
the parties who should be entitled under the state law. In terms,
the state law required the delivery to the
Page 23 U. S. 324
sheriff to the use of the parties, but who the parties were to
whose use the sheriff must hold them could not be ascertained by
him, but must be awarded by the court to whom, as an incident to
the principal cause, it exclusively belonged. In what manner could
any other court be authorized to ascertain who was the commanding
officer of the capturing vessel? The decree of the court in
distributing the proceeds of the vessel and cargo must necessarily
involve this inquiry, and certainly it cannot for a moment be
maintained in argument that any other person than the commander of
the capturing vessel, who would share the proceeds of the prize and
her cargo, could be within the meaning of the law of Louisiana. The
common form of drawing up decrees in cases of condemnation is that
the proceeds be distributed according to law. But if any difficulty
arises, upon petition, the court always proceeds to decide who are
the parties entitled to distribution, and to make a supplementary
decree. But it may do the same in the first instance, and make the
particulars of the distribution a part of the original decree. In
the present case, if the original decree had been drawn out at
large, it ought to have been that the negroes so captured be
delivered over to the Sheriff of New Orleans for sale according to
the act of Louisiana in this behalf provided, and that the net
proceeds of the sale be afterwards paid over,
viz., one
moiety to A.B., adjudged by the court to be the commanding officer
of the capturing vessel, and the other moiety to the Charity
Hospital
Page 23 U. S. 325
of New Orleans. This course of proceeding is very familiar in
prize causes, where the court of admiralty always ascertains who
are the captors entitled to the prize proceeds, and the courts of
common law will never entertain any jurisdiction over the proceeds
until after such adjudication. Considering this cause, then, as a
cause of admiralty and maritime jurisdiction belonging exclusively
to the courts of the United States, we are not aware how any other
court could adjudge upon the question who were the captors or
seizors entitled to share the proceeds, and we think that the
district court has jurisdiction over the present proceedings.
In respect to the claim of Mr. Roberts, we do not think that the
evidence establishes that he ever made any valid seizure of the
vessel. It is not sufficient that he intended to make one or that
on some occasions he expressed to third persons that he had so
done. There must be an open, visible possession claimed, and
authority exercised under a seizure. The parties must understand
that they are dispossessed and that they are no longer at liberty
to exercise any dominion on board of the ship. It is true that a
superior physical force is not necessary to be employed if there is
a voluntary acquiescence in the seizure and dispossession. If the
party, upon notice, agrees to submit and actually submits to the
command and control of the seizing officer, that is sufficient,
for, in such cases, as in cases of captures
jure belli, a
voluntary surrender of authority and an agreement to obey the
captor
Page 23 U. S. 326
supplies the place of actual force. But here Mr. Roberts gave no
notice of the seizure to the persons on board; he exercised no
authority and claimed no possession. He had no force adequate to
compel submission, and his appearance in the vessel gave no other
character to him than that of an inspector rightfully on board in
performance of his ordinary duties. To construe such an equivocal
act as a seizure would be unsettling principles.
Messrs. Humphrey, Meade, and Gardner certainly did make a
seizure by their open possession of the vessel and bringing her
under the guns of Fort St. Philip. But there is this objection to
the seizure both of Mr. Roberts, (assuming that he made one) and of
the other persons that it was never followed up by any subsequent
prosecution or proceedings. The seizure of Messrs. Humphrey, Meade,
and Gardner seems to have been voluntarily abandoned by them, and
even that of Mr. Roberts, if he made one, does not seem to have
been persisted in. Now a seizure or capture, call it which we may,
if once abandoned without the influence of superior force, loses
all its validity and becomes a complete nullity. Like the common
case of a capture at sea and a voluntary abandonment, it leaves the
property open to the next occupant. But what is decisive in our
view is that neither of these gentlemen ever attempted any
prosecution or intervened in the original proceedings in the
district court claiming to be seizors, which was indispensable to
consummate their legal right, and their claim
Page 23 U. S. 327
was for the first time made after a final decree of condemnation
in the District Court. This was certainly a direct waiver of any
right acquired by their original seizures. It is not permitted to
parties to lie by and allow other persons to incur all the hazards
and responsibility of being held to damages in case the seizure
turns out to be wrongful, and then to come in after the peril is
over and claim the whole reward. Such a proceeding would be utterly
unjust and inadmissible. If the parties meant to have insisted on
any right as seizors, their duty was to have intervened in the
district court before the hearing on the merits, according to the
course pointed out by Lord Hale in the passage cited at the bar,
where there are several persons claiming to be seizors of forfeited
property. In the present case, Mr. Chew actually advanced a
considerable sum of money for the maintenance of these negroes
during the pendency of the suit, and if it had been unsuccessful,
he must have exclusively borne the loss. Upon the plain ground,
then, that Mr. Roberts and Messrs. Humphrey, Meade, and Gardner
have not followed up their seizure by any prosecution, such as the
act of 1807 requires,
Page 23 U. S. 328
we are of opinion that there is no foundation in point of law
for their claims.
That Mr. Chew, on behalf of himself and the surveyor and naval
officer of the port of New Orleans, did make the seizure on which
the prosecution in this case was founded is completely proved by
the evidence; it is also admitted by the United States in its
answer to the libel of Messrs. Carricaberra, &c., the Spanish
claimants, and is averred by Mr. Chew, and his coadjutors in their
separate allegation and answer to the same libel. While the vessel
lay at Fort St. Philip, armed boats under revenue officers were
sent down by him with orders to seize her and bring her up to New
Orleans for prosecution, which was done accordingly.
The remaining question, then, is whether Mr. Chew, for himself
and his coadjutors in office, is to be considered as entitled to
the proceeds of the vessel under the act of Congress and to the
proceeds of the negroes as "the commanding officer of the capturing
vessel" within the sense of the Louisiana law.
If he is entitled to the proceeds of the vessel and cargo under
the 7th section of the act of 1807, then, we think, he must be
fairly considered as within the spirit, if not the letter, of the
act of Louisiana.
The 7th section is certainly not without difficulty in its
construction. In the first clause, it declares that vessels
found
"in any river, port, bay, or harbor, or on the high seas within
the jurisdictional limits of the United States or
Page 23 U. S. 329
hovering on the coast thereof, having on board any negro,
&c., for the purpose of selling them as slaves, &c.,
contrary to the prohibitions of this act, shall be forfeited to the
use of the United States, and may be seized, prosecuted, and
condemned in any court of the United States having jurisdiction
thereof."
Under this clause, standing alone, it cannot be doubted that any
person might lawfully seize such a vessel at his peril, and if the
United States should choose to adopt his act and proceed to
adjudication, he would, in the event of a condemnation, be
completely justified. But it may be considered as peculiarly the
duty of the officers of the customs to watch over any maritime
infractions of the laws of the United States, and by the Collection
Act of 1799, ch. 128, s. 70, it is made the duty of all custom
house officers, as well within their districts as without, to make
seizures of all vessels violating the revenue laws.
The section, then, in the next clause authorizes the President
of the United States to employ any of the armed vessels of the
United States to cruise on any part of the coast to prevent
violations of the act, and to instruct and direct the commanders of
such armed vessels to seize all vessels contravening the act
"wheresoever found on the high seas," omitting the words, "in any
river, port, bay, or harbor" contained in the former clause. It
then proceeds to declare that the proceeds of all such vessels,
when condemned,
"shall be divided equally between the United States and the
officers and men, who shall make
Page 23 U. S. 330
such seizure, take or bring the same into port for condemnation,
whether such service be made by an armed vessel of the United
States or revenue cutters thereof, and the same shall be
distributed in like manner as is provided by law for the
distribution of prizes taken from an enemy."
In a strict sense, the present seizure was not made by an armed
vessel of the United States, nor by a revenue cutter, which, by the
Act of 1799, ch. 128, s. 98, the President is at liberty to require
to cooperate with the navy. But if we consider these cases as put
only by way of example, or if we give an enlarged meaning to the
words "revenue cutter" so as to include revenue boats, such as the
collector is, by the Act of 1799, ch. 128, s. 101, authorized to
employ with the approbation of the Treasury Department, then the
seizure of Mr. Chew may be brought within the general terms of the
act. The United States does not appear to have resisted this
construction as to the proceeds of the sale of the
Josefa
Segunda. And on the other hand, if we consider that the act
meant to deal out the same rights to all parties who might seize
the offending vessel, whether they were officers of armed vessels
or of revenue cutters or merely private individuals who may seize
and prosecute to condemnation, then under that construction, Mr.
Chew may be properly deemed the seizing officer, entitled, with his
crew, to the proceeds of the vessel. If such a construction is not
admissible within the equity of the act, then it is a
casus
omissus,
Page 23 U. S. 331
and the property yet remains undisposed of by law.
Upon the best consideration which we have been able to give the
case, we are of opinion that it is a
casus omissus -- or
rather that all the beneficial interest vests in the United States.
The first clause of the seventh section declares that all vessels
offending against it "shall be forfeited to the use of the United
States," and may be seized, prosecuted, and condemned accordingly.
The seizure may be made by any person, but the forfeiture is still
to be, by the terms of the act, for the use of the United States.
If the act had stopped here, no difficulty in its construction
could have occurred. As nothing is given by it to the seizing
officer, nothing could be claimed by him except from the bounty of
the government. The subsequent clause looks exclusively to cases
where the seizure is made by armed vessels of the navy or by
revenue cutters, and directs in such an event a distribution to be
made in the same manner as in cases of prizes taken from an enemy.
Correctly speaking, these cases constitute exceptions from the
preceding clause, and take them out of the general forfeiture "to
the use of the United States." It might have been a wise policy to
have extended the benefit of these provisions much further, or to
have given, as the Act of 20 April, 1818, ch. 85, was given, a
moiety in all cases to the person who should prosecute the seizure
to effect. But courts of law can deal with questions of this nature
only so far as the legislature has clearly
Page 23 U. S. 332
expressed its will. Mr. Chew appears to be a very meritorious
officer, and deserving of public respect for his good conduct on
this occasion. But as the act has made no provision for his
compensation, he must be left, in common with those who made the
military seizure, to the liberality of the government.
The remarks which have been already made dispose of the case so
far as respects the proceeds of the vessel, and we think they are
decisive as to the claim to the proceeds of sale of the negroes.
The case as to this matter is also a
casus omissus in the
act of Louisiana. That act had a direct reference to the act of
Congress, and "the commanding officer of the capturing vessel," in
the sense of the former, must mean the commanding officer of such
an armed vessel or revenue cutter as is entitled to share in the
distribution of the proceeds by the latter. It would be going very
far to give a larger construction to the words than in their strict
form they import, and since they admit of a reasonable
interpretation by confining them to the cases provided for by
Congress, we are satisfied that our duty is complied with by
assigning to them this unembarrassed limitation.
The decree of the district court, so far as it dismisses the
claims of Messrs. Roberts, Humphrey, Mead, and Gardner, is
affirmed, and so far as it sustains the claim of Mr. Chew and the
naval officer and surveyor of the port of New Orleans, is
reversed.
Decree accordingly.