The third count of the libel is the only one 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 the 3d of March, 1807.
By this section it is enacted, 'That if any ship or vessel shall be found, from and after the first day of January, 1808, in any river, port, bay, or harbour, 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 colour, 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, shall safe-keep every negro, mulatto, or person of colour, 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, 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.