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
MR. JUSTICE LIVINGSTON delivered the opinion of the Court, and
after stating the facts, proceeded as follows:
The third count of the libel is the only one
Page 18 U. S. 352
that has any bearing on the present case. It alleges a violation
of the seventh section of "An act of Congress prohibiting the
importation of slaves into the United States after the first day of
January in the year 1808," and which passed 3 March, 1807.
By this section it is enacted
"That if any ship or vessel shall be found, from and after 1
January, 1808, in any river, port, bay, or harbor, or on the high
seas, within the jurisdictional limits of the United States or
hovering on the coast thereof having on board any negro, mulatto,
or person of color 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 the
proceeds of all such 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, or bring the same into port for condemnation, 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,
Page 18 U. S. 353
shall safekeep every negro, mulatto, or person of color, found
on board of any ship or vessel so seized by them, and deliver them
to such persons as shall be appointed by the respective states to
receive the same,"
&c.
It is not denied that the brig
Josefa Segunda, shortly
before her seizure, had been hovering on the coast of the United
States, having on board a large number of persons of the
description of those whose importation into this country is
prohibited by the act; nor can there be any doubt from the
situation and circumstances under which she was found and the
manner in which she came within the jurisdictional limits of the
United States, which appears to have been a voluntary act on the
part of the prize master, that there is at least
prima
facie evidence of an intention to dispose of these people as
slaves or to land them in some port or place within the
jurisdiction of the United States.
The claimants, aware of the necessity of accounting for
circumstances, which, unexplained, could not but prove fatal to
their interests, contend in the first place that the coming into
the Mississippi was a matter of necessity, produced by the perilous
situation of the vessel, and the famishing condition of the people
on board, and that therefore neither she nor her cargo can be
obnoxious to the provisions of the act of Congress. If the claim be
not sustained on this plea. It is insisted in the next place that
the capture being illegal or piratical, the original owners cannot
be affected by any of the acts of the prize crew, and,
Page 18 U. S. 354
in the third place it is asserted that the vessel having been
ransomed, and taken out of the hands of the captors, the claimants
are restored to all their original rights, unimpaired by any acts
on the part of the former.
Each of these claims for restitution will now be examined.
When any act is done which of itself and unexplained is a
violation of law, and a party, to extricate himself or his property
from the consequences of it, resorts to the plea of necessity or
distress, the burden of proof is not only thrown upon him, but when
the temptation to infringe the law is great and the alleged
necessity, if real, can be fully and easily established, no court
should be satisfied with anything short of the most convincing and
conclusive testimony. The proofs before us are so far from being of
this character that we look in vain for testimony of any serious
disaster's having befallen this vessel in her voyage from the
Island of Cuba to the Mississippi -- or for a calamity of any kind
which might not have been averted or prevented had the master
seriously and honestly endeavored to reach the Island of
Marguerita, which is now pretended to have been her real port of
destination. That neither he nor his employer should have any great
solicitude for the arrival of the prize at Marguerita is easily
accounted for when it is recollected that this island, as well from
its small extent, being not more than forty miles in length and
perhaps not more than half as broad, as from the scantiness and
poverty of its population, could afford but a wretched if
Page 18 U. S. 355
any market at all for slaves, while at New Orleans, each of them
would produce the extravagant and tempting sum of one thousand
dollars. It has not escaped the observation of the court, that the
General Arismendi, made the passage from Marguerita to the place of
capture off the Island of St. Domingo, in the short space of nine
days; for the owner's letter of instructions to the Captain bears
date at Marguerita on 2 February, 1818, and on the 11th of the same
month, the capture was made; and yet with the important fact before
us, it is seriously contended that a voyage which had just been
made in nine days, could not be performed back again in six weeks.
This is a possible case, but we ought not to be expected on slight
grounds to believe that a vessel after leaving the Island of Cuba,
in the latter end of February, should, on 18 April following, be
found not only several miles further from her destined port than at
the time of sailing, but that she had pursued this circuitous route
in search of provisions: a story so improbable could hardly under
any circumstance be entitled to belief, but it becomes absolutely
incredible, when so many ports, more contiguous, and where supplies
might easily have been obtained, were passed in her way to the
Balize, without a single effort to procure a supply at any of them.
Why not go to Kingston, in Jamaica, which was in the neighborhood
of the place where the capture was made, and to which port, the
privateer went after making the capture? Her not going there can be
accounted for on no supposition other than that of her being well
supplied
Page 18 U. S. 356
with provisions at the time of her leaving Cuba. It is vain then
to urge a plea, which is contradicted by the internal evidence of
the case. If, however, it can be made out that an attempt were
really made to reach Marguerita, which was frustrated by adverse
winds, or by anyone of those disasters which so frequently occur on
the ocean, or that the
Josefa was forced by stress of
weather so very far from the track of a direct voyage to that
island, the claimant might still contend, that their plea of
necessity had been made out. But, on this subject, there is an
impenetrable obscurity, which it was their duty to remove. What
winds, or what weather were encountered, we are not informed. No
log book, from which alone accurate and safe knowledge might be
derived, is produced. A journal of that kind was not even kept, a
circumstance which of itself excites a suspicion, which none of the
testimony in the cause is calculated to dispel. But it is not
necessary to pursue this inquiry further, or to take notice of
several minor circumstances which are relied on, and which so far
from making out a case of real distress, only serve to confirm the
view which has already been taken of the other evidence, and leave
no reasonable doubt of the whole story being a fiction, or that the
want of provisions, if real at the time of seizure, was produced by
a voluntary protraction of the voyage for the purpose, and with the
intent of violating the law on which the present libel is founded.
If, on testimony so vague, so contradictory, and affording so
little satisfaction, this Court should award restitution, all the
acts of Congress which
Page 18 U. S. 357
have been passed to prohibit the importation of slaves into the
United States may as well be expunged from the statute book, and
this inhuman traffic, for the abolition of which the United States
have manifested an early and honorable anxiety, might under the
most frivolous pretexts be carried on not only with impunity, but
with a profit which would keep in constant excitement the cupidity
of those who think it no crime to engage in this unrighteous
commerce. In the execution of these laws 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.
But the claimants, not relying exclusively on the plea of
necessity, contend that the capture being piratical, and by a
vessel having no commission, they ought not to be injured by any
acts of the prize master which may be deemed infractions of the
laws of the United States.
It would indeed be unreasonable and unjust to visit upon the
innocent owners of this property the sins of a pirate, and were
this allegation made out, the Court would find no difficulty in
making the restitution which is asked for. But is it so; was the
General Arismendi a piratical cruiser? The Court thinks
not. Among the exhibits is a copy of a commission, which is all
that in such a case can be expected, which appears to have been
issued under the authority of the Republic of Venezuela. This
republic is composed of the inhabitants of a portion of the
dominions of Spain in South America, who have
Page 18 U. S. 358
been for sometime past, and still are, maintaining a contest for
independence with the mother country. Although not acknowledged by
our government as an independent nation, it is well known that open
war exists between them and his Catholic Majesty, in which the
United States maintain strict neutrality. In this state of things,
this Court cannot but respect the belligerent rights of both
parties, and does not treat as pirates the cruisers of either so
long as they act under and within the scope of their respective
commissions. This capture, then, having been made under a regular
commission of the government of Venezuela, the captors acquired
thereby a title to the vessel and cargo, which could only be
divested by recapture or by the sentence of a prize court of the
country under whose commission the capture was made. The courts of
neutral nations have no right to interfere except in cases which do
not embrace the present capture. The captors therefore, at the time
of the violation of our laws, must be regarded as the lawful owners
of the property and as capable of working a forfeiture of it by any
infraction on their part of the municipal regulations of the United
States. The property in the present case not only belonged at the
time to the captors in virtue of the capture which they had made,
but it is evident from the testimony and admissions in this cause
that it was owned at the time of capture by an enemy, and that a
condemnation in a prize court of Venezuela was inevitable.
As little foundation is there for resting a claim to restitution
on the ransom which it is alleged took
Page 18 U. S. 359
place of this vessel and cargo. This ransom, whether real or
pretended, whether absolute or contingent (about which, doubts may
well be entertained) cannot affect the rights of the United States.
The forfeiture, having attached before any ransom took place, could
not be divested by any act between parties, conusant as these were
not only of the fact that a seizure had taken place for a violation
of law, but that legal proceedings had been instituted and were
then carrying on to obtain a sentence of condemnation founded on
such violation.
Decree affirmed with costs.
