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Fort St. Philip, they found the vessel at anchor op- 1825. posite the fort, with a serjeant's guard on board, which had been placed there by Major Humphrey, Segunda. the commanding officer at the fort. The inspeçtor received from that officer the ship's papers, and took possession of the vessel and negroes, the guard having been withdrawn, and brought them up to the city of New-Orleans.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.
Mr. Livingston, for the appellant, Roberts, in- March 15th. sisted, that he was entitled as the first seizor, under the act of Congress of the 3d of March, 1807, c. 77. s. 7. and the act of the Legislature of Louisiana, passed on the 13th of March, 1818, in pursuance of the act of Congress, to a moiety of the proceeds of the vessel and negroes found on board. He exercised all the authority and control over the vessel he was capable of, with the force at his disposition. The persons on board submitted to the seizure ; and, as in cap
1825. tures jure belli, it is not necessary that there
incat should be a physical superiority of force on the Segunda. part of the captors. He was afterwards com
pelled to abandon the possession; and such an abandonment, from the force and fear of another party, cannot invalidate the original seizure. By the act of Congress, (s. 7.) the proceeds of the vessel and effects are to be divided equally between the United States and the officers and men who shall make the seizure ; and by the act of Louisiana, the proceeds of the negroes are to be divided equally between the commanding officer of the capturing vessel, and the charity hospital. The appellant, Roberts, is entitled in both capacities ; and the revenue officers, who came in after the capture was complete, and dispossessed him who was the first seizor, can have no claim under either act.
Mr. Key, for the appellants, Gardner, Meade, and Humphrey, argued upon the facts, to show that they were the real, meritorious captors.
The Attorney General, for the respondents, insisted, that if any of the parties before the Court were entitled, the Collector and other officers of the customs were the only parties entitled by law to be considered as the captors or seizors, they having made the first effectual seizure, and prosecuted it to condemnation, whilst the other claimants avoided all the expense and
a The Alexander, 8 Cranch's Rep. 179.
hazard of the prosecution, and did not intervene 1825. until its successful termination. The law does her not mean to encourage that kind of seizure, Segunda. where the captor lays his hand on the subject, and takes it off again. That person is the seizor who informs and prosecutes. If any other person claims a title, he is bound to intervene before the first adjudication, and submit his claim to the decision of the Court." It may be doubted, whether, under the 7th section of the act of Congress, any person can be entitled, as a seizor, .except the officers, &c. of the armed vessels, and revenue cutters of the United States. If it be a casus omissus, none of the captors now before the Court are literally within the terms of the act, and the whole of the forfeiture must be to the United States. But, if any are entitled, the Collector is clearly to be preferred.
Mr. Justice STORY delivered the opinion of March 18th. 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
a Hargr. Law Tracts, 226, 227.
1825. Collector of the Customs,) to the Sheriff of the
parish of New Orleans, to be sold according to The Josefa Segunda. 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, brought by the original Spanish claimants. The 1825. claims of all the other parties now before the
The Josefa Court, adverse to that of Mr. Chew, have inter- Segunda. vened 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 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 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 the 13th of March, 1818, passed an act avowedly to meet the exigency of this section, which act, af