The Josefa Segunda
18 U.S. 338 (1820)

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U.S. Supreme Court

The Josefa Segunda, 18 U.S. 5 Wheat. 338 338 (1820)

The Josefa Segunda

18 U.S. (5 Wheat.) 338

Syllabus

An information under the Act of 3 March 1807, c. 77, to prevent the importation of slaves into the United States. The alleged unlawful importation attempted to be excused upon the plea of distress. Excuse repelled, and condemnation pronounced.

In the execution of the laws against the slave trade, no vigilance can be excessive, and restitution ought never to be made but in cases which are purged of every intentional violation by proofs the most clear, the most explicit and unequivocal.

Upon a piratical capture, the property of the original owners cannot be forfeited for the misconduct of the captors in violating the municipal laws of the country where the vessel seized by them is carried.

But where the capture is made by a regularly commissioned captor, he acquires a title to the captured property which can only be divested by recapture or by the sentence of a competent tribunal of his own country, and the property is subject to forfeiture for a violation by the captor of the revenue or other municipal laws of the neutral country into which the prize may be carried.

From the proceedings in the court below, it appeared

Page 18 U. S. 339

that the brig Josefa Segunda, being Spanish property and on a voyage from the coast of Africa to the Island of Cuba with a cargo of negroes, was captured on 11 February, 1818, off Cape Tiberon in St. Domingo by the Venezuelan privateer General Arismendi. On 24 April following, she was seized in the River Mississippi by certain custom house officers and conducted to New Orleans, where a libel was filed against her in the District Court for the Louisiana District.

The libel contained four counts. The first alleged that the said negroes were unlawfully brought into the United States from some foreign country in the said brig with intent to hold, sell, or dispose of them as slaves or with intent that the same should be held to service or labor contrary to the act of Congress in such case made and provided.

The second count alleged that these negroes were taken, received and transported on board the said brig from some of the coasts or kingdoms of Africa or from some other foreign kingdom, place, or country for the purpose of selling them in some port or place within the jurisdiction of the United States as slaves or to be held to service or labor contrary, &c. In the third count it was charged that the said brig was found in some river, port, bay, or harbor of the United States, or on the high seas within the jurisdictional limits of the United States or hovering on the coast thereof, to-wit, in the River Mississippi, having on board some negroes, mulattoes, or people of color, for the purpose of selling them as slaves or with an intent to land the same in some port or

Page 18 U. S. 340

place within the jurisdiction of the United States, contrary, &c. The fourth allegation or count was that one hundred and seventy-five persons of color, not being native citizens or registered seamen of the United States or natives of countries beyond the Cape of Good Hope, were landed from said brig in a port or place situate in a state which by law had prohibited the admission or importation as aforesaid, to-wit, at or near the Balize in the State of Louisiana, contrary, &c.

This libel was filed on 29 April, 1818, and on 5 May following, a claim was interposed by Messrs. Carricabura, Arieta & Co. merchants of the Havana, which stated, that they were owners of the said brig, which, with the said negro slaves, was on the high seas, while pursuing a lawful voyage, captured and taken from them by a certain Rene Beluche, and the crew of the armed ship or vessel called the General Arismendi, sailing under the flag of the revolted colonies of Venezuela and New Grenada; that the said brig put into the Balize in very great distress, and without any intention on the part of the crew, or any other person on board, to infringe or violate any law of the United States. That whatever may have been the conduct of the prize crew, or of any other persons on board, the claimants insist, that they cannot be made responsible for any of their acts, because the said brig, with her cargo, was taken from their possession unlawfully, and in violation of the law of nations, inasmuch as the captors had no legal authority to take the same, and if they had any commission, the capture

Page 18 U. S. 341

was illegal, because the privateer the General Arismendi, was armed and fitted out, or her armament or equipment increased, in a port of the United States, in violation of the laws thereof.

On this libel and claim, it appeared in evidence that the capture of the brig Josefa Segunda, with a cargo of slaves, was made off Cape Tiberon in the Island of St. Domingo, on 11 February, 1818, on a voyage to the Havana, from the coast of Africa, which she had left in the preceding month of December or January. The capture was made by a Venezuelan brig, The General Arismendi. This vessel was commissioned as a privateer by John Baptista Arismendi, who styled himself commanding General of Venezuela, and Captain General of the Island of Marguerita. The caption of the commission was, "Republic of Venezuela," and it purported to have been given in the Island of Marguerita, 1 February, 1818, and to be sealed with the great seal of the state. At the time of capture, there were from two to three hundred slaves on board; some of these, but what number does not appear, afterwards died; others, but how many is not stated, were sold at the Jardins de la Reine, on the south side of the Island of Cuba, in order to purchase provisions. Toward the end of the month of February, the prize master of the brig received written orders from the Captain of the privateer to conduct the prize to the Island of Marguerita, and always steered, as he says, eastward, the winds being always ahead. The prize master had no log book on board; he wrote every day's occurrences on

Page 18 U. S. 342

a slate, effacing what had been written the day before. On 18 April, 1818, in the morning, the brig was boarded by a pilot about 40 miles from the Balize, and arrived there at 4 o'clock, P.M. About 25 miles from the Balize, the brig fell in with the American ship Balize, from which no provisions were asked, but from whom he received six bags of rice. On 24 April, the brig was seized by the custom house officers, and conducted to New Orleans. On 27 April, 1818, Laporte, who was the agent of Beluche at New Orleans, wrote a letter to the prize master of the brig containing, among others, these expressions,

"Maintain always your declaration of being forced into port. -- Take care that your sailors neither say nor do anything which may prejudice the interest of Venezuela."

The privateer, after the capture of the brig, went to Jamaica for provisions. The pilot who first boarded the brig stated that her mainmast was sprung, her ropes were all bad, the sails not fit to go to sea; that they were pumping the last cask of water on board. Her spars were middling, except the mainmast; there were no provisions on board -- the men were in a State of starvation -- that the slaves had nothing but skin upon their bones. A witness, who was on board in her passage up the river, stated that the brig sailed equal to anything in the river; that he would not be afraid to make a voyage in her; her tackle, ropes, &c., were as good as usual; she was pumped out but once while he was on board; they carried topsails coming up; the spars were generally good. He saw nothing in the appearance of

Page 18 U. S. 343

the crew of their having been starved. It also appeared that the agent of the claimants in New Orleans received letters from the owners of the brig sometime prior to her arrival at New Orleans, and that one of the owners had arrived in that city, while this cause was depending, and before 19 June, 1818.

It was admitted by the claimant that there existed an understanding between them and the captors; that the former were to render to the latter a compensation for their not interposing any claim, which was so far ascertained, that the sum which the captors were to receive was not to be less than six nor more than eight thousand dollars, to depend on the expense and trouble incident to the prosecution and the repairing of the vessel; that this arrangement was made by the advice of the captor's counsel from a conviction on his part that they could not recover on account, as he conceived, of the illegality of the commission. It was also admitted that the claimants were the original owners of the big and slaves on board.

On this testimony, the district court condemned the brig and effects found on board, to the United States and the cause was brought by appeal to this Court.

Page 18 U. S. 351

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