The Josefa Segunda Roberts
APPEAL from the Circuit Court of Louisiana.
This is the same case which was reported ante, vol. 5. p. 338. It was a proceeding against the vessel, and the negroes taken on board of her, under the Slave Trade Act of the 3d of 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 the 13th of 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 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. [a]
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, 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 block-house, until the 21st of 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 the 21st of 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 Fort St. Philip, they found the vessel at anchor opposite the fort, with a serjeant'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. March 15th.
Mr. Livingston, for the appellant, Roberts, insisted, 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 captures jure belli, it is not necessary that there should be a physical superiority of force on the part of the captors. [b] He was afterwards compelled to abandon the possession; and such an abandonment, from the force and fear of another party, cannot invalidate the original seizure. [c] 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 hazard of the prosecution, and did not intervene until its successful termination. The law does not mean to encourage that kind of seizure, 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. [d] 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. March 18th.
Mr. Justice STORY delivered the opinion of the Court.
^a The act of Congress of the 3d of March, 1807, c. 77. (s. 4.) after providing a personal penalty for taking on board, receiving, or transporting any negro, &c. from Africa, or any other foreign country, for the purpose of selling them as slaves, in any part of the United States, enacts, that 'every such ship or vessel, in which such negro, mulatto, or person of colour, shall have been taken on board, received, or transported as aforesaid, her tackle, apparel, and furniture, and the goods and effects which shall be found on board the same, shall be forfeited to the United States, and shall be liable to be seized, prosecuted and condemned, in any of the Circuit Courts or District Courts, in the District where the said ship or vessel may be found or seized. And neither the importer, nor any person claiming from or under him, shall hold any right or title whatsoever to any negro, mulatto, or person of colour, nor to the service or labour thereof, 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, mulatto, or person of colour.' (s. 7.) 'That if any ship or vessel shall be found, from and after the first day of January, 1808, in any river, port, bay, or harbour, or on the high seas, within the jurisdictional limits of the United States, or hovering on the coasts thereof, having on board any negro, mulatto, or person of colour, for the purpose of selling them as slaves, or with intent to land the same in any port or place within the jurisdiction of the United States, contrary to the prohibition of this act, every such ship or vessel, together with her tackle, apparel, and furniture, and the goods or effects which shall be found on board the same, 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.
And it shall be lawful for the President of the United States, and he is hereby authorized, should he deem it expedient, to cause any of the armed vessels of the United States to be manned and employed to cruize on any part of the coast of the United States, or territories thereof, where he may judge attempts will be made to violate the provisions of this act, and to instruct and direct the commanders of armed vessels of the United States, to seize, take, and bring into any port of the United States, such ships or vessels, and moreover to seize, take, and bring into any port of the United States, all ships or vessels of the United States, wheresoever found on the high seas, contravening the provisions of this act, to be proceeded against according to law,' &c. 'And the proceeds of all ships and vessels, their tackle, apparel, and furniture, and the goods and effects on board of them, which shall be so seized, prosecuted, and condemned, shall be divided equally between the United States and the officers and men who shall make such seizure, take, or bring the same into port for condemnation, whether such seizure 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: Provided, That the officers and men, to be entitled to one half of the proceeds aforesaid, shall safe keep every negro, mulatto, or person of colour, found on board of any ship or vessel so by them seized, taken, or brought into Court for condemnation, and shall deliver every such negro, mulatto, or person of colour, to such person or persons as shall be appointed by the respective States, to receive the same; and if no such person or persons shall be appointed by the respective States, they shall deliver every such negro, mulatto, or person of colour, to the overseers of the poor of the port or place where such ship or vessel may be brought or found, and shall immediately transmit to the Governor, or chief magistrate of the State, an account of their proceedings, together with the number of such negroes, mulattoes, or persons of colour, and a descriptive list of the same, that he may give directions respecting such negroes, mulattoes, or persons of colour.'
The act of the Legislature of the State of Louisiana, passed on the 13th of March, 1818, after reciting the substance of the above 4th section of the act of Congress, 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.'-
^b The Alexander, 8 Cranch's Rep. 179.
^c The Mary, 2 Wheat. Rep. 123.
^d Hargr. Law Tracts, 226, 227.