Drayton, J.
The libel in this case alleges, that daring the cruise of the said privateer, on the high seas, she captured certain slaves, “ the property of the king of the United Kingdom of Great Britain and Ireland, and the dependencies thereof; or of the subjects of the said king.” That in and by a certain act of the congress of the United States, passed 26th June, 1812, entitled “ An act concerning letters of marque, prizes, and prize goods,” it is among other things enacted, that all captures of vessels and property shall be forfeited, and accrue to the owners, officers, and crew of the vessels, by which such prizes shall be made ; reserving to the United States two per centum on the nett amount of the moneys arising from such captures ; and concludes with the usual prayer of condemnation.
In feeh'.lf of the United States a claim was interposed by the district attorney, for the said slaves, as prisdners of war or otherwise, to them the said United States belonging; denying the right of the said Joseph Almeida to the said slaves, as prize of war; and concluded with praying, that the said slaves may be adjudged and delivered to them as prisoners of war, or otherwise, and that the costs of their claim be allowed.
This is one of the new and important questions arising from the present war, in which the United States of America are engaged with Great Britain. The court has, heretofore, not proceeded to condemnation of slaves brought in as prize of war; but has ordered their confinement as prisoners. And in some cases, they have been received -as such by the British authority resident at this city. The interests of parties, however, require, at this time, a formal decision on the point of prize ; to obtain which the libel, in this case, has been filed.
It is contended by Hayne, for the libellant, that by a true construction of the rights of war, and particularly in pursue. [540]*540aOce of the prize act of the United States, specially referred to in the libel, all captures and prizes of vessels and property shall be forfeited and accrue to the owners, officers, and crews of the vessels making such captures. That negroes and persons of colour held in slavery by the. British are as much slaves ■ as those held in slavery by our own citizens. That they are not real, but personal property j considered as assets in sales, and in distribution of estates.' And therefore they come within the meaning of the word property, as mentioned in the 4th section of the sRid act: ('ll vol. Laws U. S. 240.) and, consequently, are liable to. condemnation as prize. That the law must'be so construed, not only as respects the public interests, and the intention -of congress, in passing the prize act; but as protecting the rights of all concerned in privateering ; and as encouraging the exertions of our citizens -to attack and injure the enemy. And more- particularly so in retributive justice ; as the enemy have taken many slaves belonging to our citizens, and have appropriated them to their own use, as prizé of war.
On the part of the United States, it is insisted by Parker^ (district attorney,) that the right of condemning the slaves as prize of war does not attach in favour of libellants ; but, that they must be considered as prisoners of war, or other? wise, in behalf of the United States. Because, other than such a construction would be at variance with the act of congress passed on the 2d March, 1807, prohibiting thé importation of slaves. (8 vol. Laws U. S. 262 ) That ■ slaves cannot be considered as property, under that term, i» •the' prize 'act: because it could not have been the intention , of Congress to consider them as- prize, springing out of the events of the war. For were thjs the meaning of the legislature, the act prohibiting the importation of slaves would have been repealed, so far as it had any collision with the ' war, or the prize acts,
[541]*541I have never had any doubt on this subject. But as those interested in such captures appear not satisfied by a nonjudical devestment of what they claim as a right, it is better that the question should at length be seriously brought before me.
Did tiie question turn upon the meaning of the word property , as relating to slaves, something might be said in support of such doctrine ; not only, upon the principle of the civil law, which considers slaves not as persons but as things; (I Brown’s Civil Law, 100, 101. 103.) but also, from the custom, usage and meaning in law of those of our states possessing this property—But, as only one portion of our union permits this property in slaves, it cannot be supposed the other would in a general law intend it was to be considered as prize. These two different interests are repre» sented in congress; it is the united votes of that body which bare passed the prohibitory act. And it is but reasonable to believe those not permitting slavery did not, and would not concur in such a construction as is contended for by libellant.
But there are stronger reasons- why a condemnation in favour of the captors should net be decreed. In the first place, the act prohibiting the importation of slaves was made by congress, with the evident intention of for ever thereafter preventing this importation. This act was passed fo take effect at the earliest period (1st January, 1808,) at which the constitution of the United States permitted congress to prohibited their importation. For, until that time the States interested in negro importation would not have been controled but by their own act. And congress having so early used such prohibitory power, evinces their disapprobation bf such commerce, and of adding to the number of slaves in the union: and of course, their determination to maintain such prohibition strictly. It is true, this law was [542]*542made intime of peace, it was not a war measure; but it does nottbence follow, that it is to be superseded or repealed by á declaration of war, or by the passage of a prize act.
It does not follow, that an act passed as a general and standr jDg municipal law shall be repealed by a prize act, brought into existence for the purposes of a particular war,; unless such repeal manifestly appears, It would argue a want of caution in oiir legislature, which ought not to be supposed.
The first section of the law is general and inperative. Itenacts“ That from and after the 1st day of January, 1808, it shall not be lawful to import or bring into the United States, or the territories thereof, from any kingdom, place, of country, any negro, mulatto, or person of colour, with intent to hold, or sell, or dispose of such negro, mulatto, or person of colour, as a slave, or to be held to service or labour.” " This section, therefore, is general; it applies to all vessels,-whether of war or otherwise. For, “ ubi lex non distinguit, nec nos distinguere debemusd'’ It is also imperative; being without any condition or exception.—•
This farther appears by perusing the'different sections of the act—as where the pfiblic interests required, the general béaring of the first "section should be controled or mitigated, there the act is. not silent, but declares in what manner it shall be done. So by the 7th section, permitting the capture, and bringing in "of any ship or vessel hovering on our coasts, having on board any negro, mullatto, or person of colour, for the purpose of selling them ás slaves ; or with intent to land the same, in any port or place within the jurisdiction of the United States. (8 vol. Laws U. S.
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Drayton, J.
The libel in this case alleges, that daring the cruise of the said privateer, on the high seas, she captured certain slaves, “ the property of the king of the United Kingdom of Great Britain and Ireland, and the dependencies thereof; or of the subjects of the said king.” That in and by a certain act of the congress of the United States, passed 26th June, 1812, entitled “ An act concerning letters of marque, prizes, and prize goods,” it is among other things enacted, that all captures of vessels and property shall be forfeited, and accrue to the owners, officers, and crew of the vessels, by which such prizes shall be made ; reserving to the United States two per centum on the nett amount of the moneys arising from such captures ; and concludes with the usual prayer of condemnation.
In feeh'.lf of the United States a claim was interposed by the district attorney, for the said slaves, as prisdners of war or otherwise, to them the said United States belonging; denying the right of the said Joseph Almeida to the said slaves, as prize of war; and concluded with praying, that the said slaves may be adjudged and delivered to them as prisoners of war, or otherwise, and that the costs of their claim be allowed.
This is one of the new and important questions arising from the present war, in which the United States of America are engaged with Great Britain. The court has, heretofore, not proceeded to condemnation of slaves brought in as prize of war; but has ordered their confinement as prisoners. And in some cases, they have been received -as such by the British authority resident at this city. The interests of parties, however, require, at this time, a formal decision on the point of prize ; to obtain which the libel, in this case, has been filed.
It is contended by Hayne, for the libellant, that by a true construction of the rights of war, and particularly in pursue. [540]*540aOce of the prize act of the United States, specially referred to in the libel, all captures and prizes of vessels and property shall be forfeited and accrue to the owners, officers, and crews of the vessels making such captures. That negroes and persons of colour held in slavery by the. British are as much slaves ■ as those held in slavery by our own citizens. That they are not real, but personal property j considered as assets in sales, and in distribution of estates.' And therefore they come within the meaning of the word property, as mentioned in the 4th section of the sRid act: ('ll vol. Laws U. S. 240.) and, consequently, are liable to. condemnation as prize. That the law must'be so construed, not only as respects the public interests, and the intention -of congress, in passing the prize act; but as protecting the rights of all concerned in privateering ; and as encouraging the exertions of our citizens -to attack and injure the enemy. And more- particularly so in retributive justice ; as the enemy have taken many slaves belonging to our citizens, and have appropriated them to their own use, as prizé of war.
On the part of the United States, it is insisted by Parker^ (district attorney,) that the right of condemning the slaves as prize of war does not attach in favour of libellants ; but, that they must be considered as prisoners of war, or other? wise, in behalf of the United States. Because, other than such a construction would be at variance with the act of congress passed on the 2d March, 1807, prohibiting thé importation of slaves. (8 vol. Laws U. S. 262 ) That ■ slaves cannot be considered as property, under that term, i» •the' prize 'act: because it could not have been the intention , of Congress to consider them as- prize, springing out of the events of the war. For were thjs the meaning of the legislature, the act prohibiting the importation of slaves would have been repealed, so far as it had any collision with the ' war, or the prize acts,
[541]*541I have never had any doubt on this subject. But as those interested in such captures appear not satisfied by a nonjudical devestment of what they claim as a right, it is better that the question should at length be seriously brought before me.
Did tiie question turn upon the meaning of the word property , as relating to slaves, something might be said in support of such doctrine ; not only, upon the principle of the civil law, which considers slaves not as persons but as things; (I Brown’s Civil Law, 100, 101. 103.) but also, from the custom, usage and meaning in law of those of our states possessing this property—But, as only one portion of our union permits this property in slaves, it cannot be supposed the other would in a general law intend it was to be considered as prize. These two different interests are repre» sented in congress; it is the united votes of that body which bare passed the prohibitory act. And it is but reasonable to believe those not permitting slavery did not, and would not concur in such a construction as is contended for by libellant.
But there are stronger reasons- why a condemnation in favour of the captors should net be decreed. In the first place, the act prohibiting the importation of slaves was made by congress, with the evident intention of for ever thereafter preventing this importation. This act was passed fo take effect at the earliest period (1st January, 1808,) at which the constitution of the United States permitted congress to prohibited their importation. For, until that time the States interested in negro importation would not have been controled but by their own act. And congress having so early used such prohibitory power, evinces their disapprobation bf such commerce, and of adding to the number of slaves in the union: and of course, their determination to maintain such prohibition strictly. It is true, this law was [542]*542made intime of peace, it was not a war measure; but it does nottbence follow, that it is to be superseded or repealed by á declaration of war, or by the passage of a prize act.
It does not follow, that an act passed as a general and standr jDg municipal law shall be repealed by a prize act, brought into existence for the purposes of a particular war,; unless such repeal manifestly appears, It would argue a want of caution in oiir legislature, which ought not to be supposed.
The first section of the law is general and inperative. Itenacts“ That from and after the 1st day of January, 1808, it shall not be lawful to import or bring into the United States, or the territories thereof, from any kingdom, place, of country, any negro, mulatto, or person of colour, with intent to hold, or sell, or dispose of such negro, mulatto, or person of colour, as a slave, or to be held to service or labour.” " This section, therefore, is general; it applies to all vessels,-whether of war or otherwise. For, “ ubi lex non distinguit, nec nos distinguere debemusd'’ It is also imperative; being without any condition or exception.—•
This farther appears by perusing the'different sections of the act—as where the pfiblic interests required, the general béaring of the first "section should be controled or mitigated, there the act is. not silent, but declares in what manner it shall be done. So by the 7th section, permitting the capture, and bringing in "of any ship or vessel hovering on our coasts, having on board any negro, mullatto, or person of colour, for the purpose of selling them ás slaves ; or with intent to land the same, in any port or place within the jurisdiction of the United States. (8 vol. Laws U. S. 266.) But even in this case, those persons ate .not to be sold; they áre to bé disposed of otherwise, as therein is directed.—The party capturing, receives nothing from the proceeds of such negroes, mulattos, or persons of colour; his emoluments arise only from the proceeds of the ship or vessel, her tackle, apparel [543]*543and furniture, and the goods and effects on board; and this under a special poviso, that to entitle him to such reward, he shall “ keep safe every negro, mulatto, or person of co-lour, found on board of any ship or vessel so seized, taken or brought into port 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 them,” &c. Hence, as respects the rights and interests vested by the prize act, congress has legislated with caution.
When to give energy to that act, that body meant former acts, or parts of acts to be repealed, the same has been expressly ; it has not been left to a court to advance one step farther than was intended, by its decreeing a virtual repeal.
For it is only under such a decree, or by such a construction, that the cause of the libellant can be sustained. This is evident, by referring to the 14th and 16th sections of the prize act; which for the purpose of giving free scope to its operations, expressly repeal so much of the non-importation and embargo laws as relate to prize goods, or private armed vessels: but nothing is said as to prohibitory slave acts. It follows then that congress did not intend to repeal such act, as relating to prize of war : as “ Exceptio probat regulam, in. non exccptis.” And slaves are not considered therein under the term property, or as goods and effects, as is evidentby the remunerating clause of the prohibiting slave act, (Sec. 7.) before mentioned, congress has therein clearly expressed its opinion on this point; and it is not then for this court to suppose a different construction.
I am, therefore, of opinion, the negroes or persons of co-lour, so libelled, cannot be condemned as prize to the captors.
The only question now remaining for consideration is, whether the claim in behalf of the United States for the same, as prisoners of war or otherwise, shall be sustained; or if [544]*544not sustained, whether this court will in any. and what manner, pronounce judgment .in the premises x
As to the claim of prisoners of war, I do not think it proper ¿¡esi,]e thereon. It apears to me, as the laws of the United States are silent on the subject, it becomes a matter of state, respecting which it is not for the judiciary to determine.—The right to do so rt maining with the government of the United States. Because these persons may have been heretofore informally considered as prisoners, it is no reason this court should now decree them to be prisoners of war. And on this point there is much similarity with the reasoning and cases in law respecting head money. In which the court of admiralty pronounces not whether due, hut only the number of men taken, leaving the remuneration to the sovereign power. (1st Robinson’s Admiralty Reports 157.)
Under these impressions I do adjudge and decree, that the libel be dismissed with costs, and that the claim of the United States, be sustained so far as to detain the said negroes, mulattoes, or persons of colour, in the possession and custody of the marshal, subject to such disposition and uses in favour of the United States, whether as prisoners of war, as prize to the United State, or otherwise, as shall lawfully be declared and directed in the premises. And lastly, I adjudge and decree that the libellant pay also the costs of the claim in this case.