DAVIS, District Judge.
The libellants,
owners of the schooner Equality, claim a sum remaining in court, part of the proceeds of twenty-eight bags of cotton, taken up at sea, on the 28th of August, 1806, by John Peabody, master of said schooner, and his crew, in her passage from Baltimore to Salem, and which were brought by them into the last-mentioned port. On the libel for salvage, in this court, the goods thus saved were ordered to be sold for the benefit of all concerned, and one net moiety of the proceeds of sale was decreed to the salvors, the residue to remain in court, subject to further order. By a subsequent order, part of the balance was directed to be paid to the salvors, so as to make their whole compensation equal to one-half the gross amount of the property saved. From the length of time elapsed since that decree, it is urged, in behalf of the libellants, that there is no probability of any claim being made, by the original owners, or by any person in their behalf or stead, and they pray that the sum thus remaining in court, being two hundred and twenty-five dollars and oighty-five cents, may be decreed to them, as their lawful right under the alleged circumstances of the case This application is read[46]*46ily entertained by the conrt, that a final and correct disposal of these proceeds may be made, and that a rule may be settled, in reference to some other balances remaining in the registry of the court, under similar circumstances.
There having been no decision, within my knowledge, respecting the disposal of such unclaimed property, in the courts of the United States, notice of this application was directed to be given to the district attorney, who has presented a claim in behalf of the United States. The points incident to the question have been very fully and ably argued by the counsel on both sides, and the court has listened, with satisfaction and improvement, to their elaborate arguments, supported or illustrated by numerous author ities, which their diligent and thorough examination has enabled them to produce.
In an examination of the questions occurring, respecting lost property, and of the rights and duties of the finder, we perceive a considerable diversity of opinion among elementary writers, and a variance in the practical rules and methods adopted by different nations; with features, in some instances, of singular scrupulosity or refinement. The Byblians, says Aelian, if they discover any lost article in the road, will not take it up, considering that such an act would bo theft. Var. Hist. iv. I. According to the remark of a commentator on this passage, a similar sentiment prevailed in other ancient nations. Plato enjoins the same strict forbearance, in his book upon Laws, — “quae non deposuisti,' ne tollas.” was the doctrine of those ancient Puritans. We shall all readily agree with Pufiendorf, in his remark on the doctrine, “nimia, sine dubio, scrupulositas.” We see a tincture of these views in the Roman law. The distinctions are so nice, in the specification of circumstances and motives justifying or excusing the meddling with property casually lost, and by which the reproach and penalty of theft might be avoided, that he would be thought to act most prudently, who should leave it untouched. The sage Ulpian admits, that property derelict, or judged to be derelict, may be taken up, but it must be with a pure and sincere intention of restoring it to the owner, and without any mercenary motive or expectation of reward. “Quid ergo, si su-gerga (id est, inventionis proemia) quae dicunt, petat? Nec hit, videtur fortum facere, etsi non probe petat aliquid.” Dig. lib. 47, tit. 2, 1. 43. The discriminating Greeks, in reference to what is comprehended under our term, “salvage,” employed, also, another word, /Jbif]Y!JTpOV — reward for discovery or for giving information. These specimens of their vocabulary, and the manner in which Ulpian introduces £UP£TpJJ> would seem to indicate, that the Grecian law did not correspond with the maxims of Roman jurisprudence, in regard to the rights and duties of a finder of lost goods. The kind and neighborly duty enjoined on the Israelites (Deut. xxii. 1^) in regard to a brother’s ox or his sheep, going estray, and in regard to all lost things of their brethren, was held by the Jews, as we are informed by the learned Selden (De Jur. Nat. et Gent, juxta Discip. Ebr. lib. 6, c. 4) to be limited to their race, and they did not consider the direction obligatory on them, in relation to strangers. The' rules of the common law and of natural law, as summarily expressed by Chancellor Kent, in his learned and valuable Commentaries on American Law, give nothing to the finder, in such cases, by way of reward; he can only demand of the owner an indemnity, a reimbursement of necessary expenses; but, if the articles found be not demanded in reasonable time and after due notice,, they become the property of the finder, unless some other appropriation be directed by positive enactment. Such is the law of England, in regard to goods found on land, not coming under the denominations of “wreck,” “estray,” “waif,” or “treasure-trove.” In Massachusetts, and in other states, the disposal of lost goods, found on land, is regulated by Btatute, and there being no such statute provision respecting goods taken up at sea. as in this case, it is argued, that, no owner having appeared, after such great length of time, the residue belongs to the fortunate finder, or if it belong to the public, that the state of Massachusetts, and not the United States, should be considered as having the ultimate right to the property, in default of appearance of the original owner.
In regard to property shipwrecked, or goods thrown overboard in extremity, a very early and uniform solicitude appears to have been manifested. In this respect the character and expression of the civil law, are admirable, and highly honorable to the Roman jurists, who, generally, were imbued with the sentiment and spirit of a generous and elevated philosophy. A doubt may be reasonably entertained, whether the laws of Rhodes possessed the harsh and unsocial feature, in this respect, which some learned writers have asserted, or whether the commencement of just and humane dispositions in this particular, in the Roman law, is to be referred to so late a period as the reign of Constantine, or even to the earlier time of Antoninus. The goods saved by Captain Peabody and his crew, must be considered as either having been thrown overboard from some ship or vessel, in imminent peril, or swept from such vessel by force of the seas. Now, in regard to property found under such circumstances, humane, equitable, and suitable provision is found to have been made, in the civil law, and by the marine laws and usages of all commercial nations. The regulations and usages on this subject only differ as to the proportion that shall be given to the salvors, and as to the ultimate disposal of property, if no owner should appear; the nations, on the European continent. varying from a third to a half in the award of salvage. In England, there is no [47]*47■fixed proportion; bnt a compensation is given, varying according to circumstances, always, however, with liberal reward to the encouragement of enterprise and exertion, in the exercise of which the whole commercial community have an obvious interest. Such also are the principles of allowance adopted in this country, in cases of salvage. The whole law on this branch of the subject is fully and ably stated by Mr. Justice Story, in the case of Rowe v. The Brig [supra].
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DAVIS, District Judge.
The libellants,
owners of the schooner Equality, claim a sum remaining in court, part of the proceeds of twenty-eight bags of cotton, taken up at sea, on the 28th of August, 1806, by John Peabody, master of said schooner, and his crew, in her passage from Baltimore to Salem, and which were brought by them into the last-mentioned port. On the libel for salvage, in this court, the goods thus saved were ordered to be sold for the benefit of all concerned, and one net moiety of the proceeds of sale was decreed to the salvors, the residue to remain in court, subject to further order. By a subsequent order, part of the balance was directed to be paid to the salvors, so as to make their whole compensation equal to one-half the gross amount of the property saved. From the length of time elapsed since that decree, it is urged, in behalf of the libellants, that there is no probability of any claim being made, by the original owners, or by any person in their behalf or stead, and they pray that the sum thus remaining in court, being two hundred and twenty-five dollars and oighty-five cents, may be decreed to them, as their lawful right under the alleged circumstances of the case This application is read[46]*46ily entertained by the conrt, that a final and correct disposal of these proceeds may be made, and that a rule may be settled, in reference to some other balances remaining in the registry of the court, under similar circumstances.
There having been no decision, within my knowledge, respecting the disposal of such unclaimed property, in the courts of the United States, notice of this application was directed to be given to the district attorney, who has presented a claim in behalf of the United States. The points incident to the question have been very fully and ably argued by the counsel on both sides, and the court has listened, with satisfaction and improvement, to their elaborate arguments, supported or illustrated by numerous author ities, which their diligent and thorough examination has enabled them to produce.
In an examination of the questions occurring, respecting lost property, and of the rights and duties of the finder, we perceive a considerable diversity of opinion among elementary writers, and a variance in the practical rules and methods adopted by different nations; with features, in some instances, of singular scrupulosity or refinement. The Byblians, says Aelian, if they discover any lost article in the road, will not take it up, considering that such an act would bo theft. Var. Hist. iv. I. According to the remark of a commentator on this passage, a similar sentiment prevailed in other ancient nations. Plato enjoins the same strict forbearance, in his book upon Laws, — “quae non deposuisti,' ne tollas.” was the doctrine of those ancient Puritans. We shall all readily agree with Pufiendorf, in his remark on the doctrine, “nimia, sine dubio, scrupulositas.” We see a tincture of these views in the Roman law. The distinctions are so nice, in the specification of circumstances and motives justifying or excusing the meddling with property casually lost, and by which the reproach and penalty of theft might be avoided, that he would be thought to act most prudently, who should leave it untouched. The sage Ulpian admits, that property derelict, or judged to be derelict, may be taken up, but it must be with a pure and sincere intention of restoring it to the owner, and without any mercenary motive or expectation of reward. “Quid ergo, si su-gerga (id est, inventionis proemia) quae dicunt, petat? Nec hit, videtur fortum facere, etsi non probe petat aliquid.” Dig. lib. 47, tit. 2, 1. 43. The discriminating Greeks, in reference to what is comprehended under our term, “salvage,” employed, also, another word, /Jbif]Y!JTpOV — reward for discovery or for giving information. These specimens of their vocabulary, and the manner in which Ulpian introduces £UP£TpJJ> would seem to indicate, that the Grecian law did not correspond with the maxims of Roman jurisprudence, in regard to the rights and duties of a finder of lost goods. The kind and neighborly duty enjoined on the Israelites (Deut. xxii. 1^) in regard to a brother’s ox or his sheep, going estray, and in regard to all lost things of their brethren, was held by the Jews, as we are informed by the learned Selden (De Jur. Nat. et Gent, juxta Discip. Ebr. lib. 6, c. 4) to be limited to their race, and they did not consider the direction obligatory on them, in relation to strangers. The' rules of the common law and of natural law, as summarily expressed by Chancellor Kent, in his learned and valuable Commentaries on American Law, give nothing to the finder, in such cases, by way of reward; he can only demand of the owner an indemnity, a reimbursement of necessary expenses; but, if the articles found be not demanded in reasonable time and after due notice,, they become the property of the finder, unless some other appropriation be directed by positive enactment. Such is the law of England, in regard to goods found on land, not coming under the denominations of “wreck,” “estray,” “waif,” or “treasure-trove.” In Massachusetts, and in other states, the disposal of lost goods, found on land, is regulated by Btatute, and there being no such statute provision respecting goods taken up at sea. as in this case, it is argued, that, no owner having appeared, after such great length of time, the residue belongs to the fortunate finder, or if it belong to the public, that the state of Massachusetts, and not the United States, should be considered as having the ultimate right to the property, in default of appearance of the original owner.
In regard to property shipwrecked, or goods thrown overboard in extremity, a very early and uniform solicitude appears to have been manifested. In this respect the character and expression of the civil law, are admirable, and highly honorable to the Roman jurists, who, generally, were imbued with the sentiment and spirit of a generous and elevated philosophy. A doubt may be reasonably entertained, whether the laws of Rhodes possessed the harsh and unsocial feature, in this respect, which some learned writers have asserted, or whether the commencement of just and humane dispositions in this particular, in the Roman law, is to be referred to so late a period as the reign of Constantine, or even to the earlier time of Antoninus. The goods saved by Captain Peabody and his crew, must be considered as either having been thrown overboard from some ship or vessel, in imminent peril, or swept from such vessel by force of the seas. Now, in regard to property found under such circumstances, humane, equitable, and suitable provision is found to have been made, in the civil law, and by the marine laws and usages of all commercial nations. The regulations and usages on this subject only differ as to the proportion that shall be given to the salvors, and as to the ultimate disposal of property, if no owner should appear; the nations, on the European continent. varying from a third to a half in the award of salvage. In England, there is no [47]*47■fixed proportion; bnt a compensation is given, varying according to circumstances, always, however, with liberal reward to the encouragement of enterprise and exertion, in the exercise of which the whole commercial community have an obvious interest. Such also are the principles of allowance adopted in this country, in cases of salvage. The whole law on this branch of the subject is fully and ably stated by Mr. Justice Story, in the case of Rowe v. The Brig [supra].
In respect to the final disposal of the remaining proceeds of such derelict property, If no owner appear, it has been considered by approved writers and the current of foreign decisions, as accruing to the state; anciently it was devoted to some pious or charitable use. The Laws of Oleron (article S3), direct restitution of such property to the owner, or that it be given, devoutly, in alms, to the poor, “Jouxte le conseil de quelque sage homme discret selon la conscience.” The Laws of the Hanse Towns, in the Revised Code of 1614, direct, that such goods be delivered to the principal magistrate of the city or to the oldest merchants, who are to award as salvage, from a twentieth to a quarter part of the property saved. Jus. Hans, tit 10. No direction is given, as to the disposal of the residue, in case no owner should appear; but the article is considered as determining, definitely, the claim of the salvors. In Stypman’s Jus Maritimum, and in Loceenius De Jure Marítimo, the ultimate right of the sovereign, in such cases, among the nations of Europe, is fully expressed.
The general maritime law, according to Loceenius, assigns the greater proportion of the property saved to the public treasury. “Derelieta tamen bona naufraga, quorum cer-to tempore non adparet dominus, pro majori liarte fisco inferre, minorem partem inven-tori pro cura et custodia eorum adsignare, aequitati et juri gentium consentaneum vi-detur.” Loec. De Jure Mar. c. 7. The French ordinance (of Louis XIV.) after determining the proportion to be awarded to the salvors, in such cases, assigns the remainder, if no owner appear within the time prescribed, one half to the admiral, the other half to the king, or his grantee. In England, the settled rule is, that such unclaimed residue is a droit of admiralty. It is sufficient to refer to the case of The Aquila, for the law, on this subject, in that country (1 O. Rob. Adm. 37): “The lord high admiral has the custody of derelicts found at sea, and if no owner appears, they become perquisites of admiralty; the finder can have no property in •them, only a reward for his trouble, in preserving them; if no owner appears, or if the claimant cannot prove his property, the salvors have not acquired any right in the thing found, but they must be satisfied for their expense and trouble, from a sale of the ship and cargo.” Such is the doctrine rec-ognised in that case. “I consider it,” says the learned judge (Sir W. Scott, now Lord Stowell) “to be the general rule of civilized countries, that what is found derelict on the sea is acquired beneficially for the sovereign, if no owner appear.” There can be no doubt that such would have been the decision in courts of admiralty in the colonies, before the Revolution; the only question that can remain, therefore, would be as to the rule of law on the subject in our present national position. If we were to pay any regard to the maritime law. in this particular, as evidenced in the writings of learned jurists, and by the codes, usages, and customs of commercial nations, the whole property cannot be awarded to the salvor, unless it should be required forgiving him an adequate compensation for his exertion, hazard, and expenses. My examination has not presented to me any instance, either in England or on the continent, where the whole property has, in any such case, been decreed to the finder, though such award, as has been intimated, might be allowable, where otherwise reasonable compensation would nót be made. If the claim made by the libellants should be sustained, and become the rule of practice, in such instances, in our courts, we should form a singular exception, among commercial nations, on a subject upon which uniformity is obviously desirable. It is argued by the libellants’ counsel that such must be the result, or that no other disposal can be made of such balances remaining in court until some positive legislative enactment shall have given 'express directions. But the rules and usages of nations, on this head, I consider to be a portion of our maritime law, giving authority to the national courts, by virtue of the constitution and the laws establishing and regulating those courts, to adjudge, award, and decree, respecting causes of admiralty and maritime jurisdiction, as such maritime laws and usages shall direct or authorize. In this conclusion, I am supported by Mr. Dane, who, in his very valuable work, A Digest of American Law, has, from just analogies, considered as accruing to the United States, what in cases of Shipwreck and jettison would, in our colonial condition, in instances occurring in the colonies, have belonged to the crown. The views of the venerable author on this and the connected topics are referred to by Chancellor Kent, in his Commentaries on American Law, in a manner that would indicate that they were approved by that distinguished jurist. Lecture 36.
Such a disposal of property of this description appears to correspond with the reasonable and humane attention, which, with some exceptions, in barbarous times, has uniformly prevailed, respecting such instances of calamity. In the first place, a full and liberal reward is given to the salvors; the residue remains in court, for a time, for the benefit of the owner, and in case of his non-appear-[48]*48anee, 5s to be paid over to the state. The receipt of such property into the national treasury, we may presume, will be with views and dispositions suitable to the age and to our free institutions, rendering the whole law on this subject, in its administration by the United States, as the wise and benevolent would desire. Writers on the Law of Wreck occasionally quote Juvenal’s sarcastic lines,
“Quicquid couspicuum, pulchrumque est aequnre toto,
Res fisci est, ubicumque natat.”
Whatever of such grasping spirit may have> predominated, in times long , past, or may have appertained to the claims of prerogative, no selfish or ungracious views belong to what is, in this case, conferred on the sovereign authority. I do not adopt the language of the English authorities, in this particular, without a degree of reluctance, that property found derelict on the seas is acquired beneficially for the sovereign, if no-owner appear, provided it is to be understood, that such property becomes absolutely and irreclaimably vested in the sovereign, should no owner appear, within a year and a day from the time of the decree of salvage. It is more satisfactory to consider the sovereign authority as holding such property in trust, to be surrendered to reasonable claims which may be presented. The learned Vin-nius, in stating the claims of the sovereign in cases of this description, informs us of the liberal practice in his own country after the legal time prescribed for the appearance of the owner has elapsed, and the money accruing from goods thus saved, deducting the allowance for salvage, is paid into the public treasury. “Hoc tempore elapso publieantur, et fisco acquisitae esse intelliguntur, qui ta-men facile patitur eas redimí.” In. quat. Lib. Inst. lib. ii. tit. 1.
This supplemental libel will be dismissed, and the requisite orders will be entered to transfer these proceeds, and other money remaining in the registry under similar circumstances, to the proper department of the government, on the principles and in the manner that have been indicated.