delivered the opinion of the Court.
Thé сase of the Josefa Segunda, in which the present controversy had its origin, is reported iii 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
Mr. Chew caused the original libel against the vessel to be brought, arid though his namе is accidentally. omitted in. it as the officer through whose, instrumentality the seizure was made, yet it is admitted, and indeed could riot 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,
The Josefa Segunda was finally condemned under the seventh section of the Slave Trade Act, of the 2d of 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 persоns 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 Lоuisiana, on the 13th of March, 1818, passed, an act avowedly to meet the exigency Of this section, which act, af
Some objection has been suggested as to the jurisdiction of the District Court of Louisiana, to 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 aсt of 1807, we are of opinion, that ;he 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
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 persons that he bad so done. Thеre 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 libérty 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 notiсe, 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,
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
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 thеir 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 lettеr, 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 harbour; or on the high seas, within the jurisdictional limits of the United States, or
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 harbour,” 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
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, “ shаll be forfeited to
the use of the United States f
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 thе benefit of these provisions much farther, or to have given, as the act of the 20th of April, 1818, (ch. 85.) has 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
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 thе 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 Survеyor of the port of New-Orleans, is reversed.
Decree accordingly.
Notes
Harg. Law Tracts, (4t.) p. 227. “ At. common law, any person might seize uncustomed goods to the use of the king and himself, and thereupon inform for a seizure. -But yet, if A. seize goods uncustomed, and then B. seize them for the same cause, he that first seizeth ought to be preferred as the informer. And, therefore, if B., that seized after, first inform, and A. also inform, A. may be admitted to interplead with B., upon the priority of the seizure, before the merchant shall be put to answer either."