# The Josefa Segunda

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.
United States Supreme Court
18 U.S. 338
The Josefa Segunda
APPEAL from the District Court of Louisiana. From the proceedings in the Court below, it appeared, 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 the 11th day of February, 1818, off Cape Tiberon in St. Domingo, by the Venezuelan privateer, the General Arismendi. On the 24th of 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 labour, 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 labour, contrary, &c. In the third count it was charged, that the said brig was found in some river, port, bay, or harbour 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 colour, for the purpose of selling them as slaves, or with an intent to land the same, in some port or place within the jurisdiction of the United States, contrary, &c. The fourth allegation or count was, that one hundred and seventy-five persons of colour, 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 the 29th of April, 1818, and on the 5th of May following, a claim was interposed by Messrs. Carricabura, Arieta & Co. merchants of the Havanna, 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 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 the 11th of February, 1818, on a voyage to the Havanna, 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, the 1st of February, in the year 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 a slate, effacing what had been written the day before. On the 18th of 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 the 24th of April, the brig was seized by the custom-house officers, and conducted to New-Orleans. On the 27th of 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 any thing, 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 any thing 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 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 the 19th of 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.
Mr. C. J. Ingersoll, for the appellants and claimants, argued, 1. That the vessel was compelled by necessity to enter the Mississippi, and, therefore, was not liable to forfeiture under the acts of Congress for suppressing the slave trade. 2. That the commission of General Arismendi, under which the original capture was made, was unlawful, he having no authority to issue it as Governor of the island of Marguerita, a dependent province of the new State of Venezuela. The owners were, therefore, entitled to restitution under the 9th article of the Spanish treaty of 1795, as well as under the general law of nations; the right of property not being changed by a piratical seizure.a 3. But supposing it to have been a regular capture in the exercise of the rights of war, and supposing the captors to have entered the waters of the United States with the intention of violating the acts of Congress, it is insisted, that the prize thus carried into a neutral port, before adjudication, cannot be forfeited to the neutral State for a breach of its municipal laws committed by the captors, without the consent or collusion of the original owners. It has been repeatedly determined, that when captures are made in violation of our neutral rights, as ascertained by the law of nations, the acts of Congress, and treaties with foreign powers, restitution of the captured property will be decreed by our tribunals to the original owners.b Why? Because it is the right as well as duty of the nation to prevent its neutral territory and resources from being used for the purposes of hostility by either belligerent. It will, therefore, restore in two cases:
The Attorney General, contra, argued principally upon the facts, to show, that the capture was collusive,
Mr. Justice LIVINGSTON delivered the opinion of the Court, and after stating the facts, proceeded as follows:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse