The Maria Josepha

2 Wheel. Cr. Cas. 600

• Court: United States Circuit Court
• Decided: May 15, 1819
• Status: Published

Opinion

There is another point on which I feel myself called on to make a remark: that is, the effect of the treaty between Spain and the United States. The sixth article has no bearing on the case. The object of that article is the protection of the vessels or effects of Spanish subjects from seizure, at the time of their being within our jurisdiction. Nor does the case come under the 9th article, since, in whatever light Spain may think proper to consider the cruisers of her enemy, they are not pirates in the view of other nations ; and as to the second section of the 14th article, it makes no provision for the restitution of property captured by citizens who have accepted commissions to cruise against Spain. The provisions are, that no citizen shall accept such a commission, and that he who accepts such a commission shall be punished as a pirate. In a government of laws, every thing has been done which good faith required to be done. Laws have been passed, and our courts are open for the punishment of such as accept of commissions under the enemy of Spain. But information must be lodged and evidence produced, before it can be required of the courts of justice to punish those offenders. For any thing farther Spain must depend upon the vigilance, activity and intelligence of her agents; and in no case is it, or can it be made, an addition to the punishment of such offenders, that the property shall be restored, unless the United States may be made liable for indemnity; for when the capture is made, the property is vested in the government that grants the commission. It is the seizure of the state, and not of the individuals.

In the case before us, there is no evidence that the San Martin privateer was fitted out in the U. States. She has, indeed, very improperly, recruited her crew within our limits; and every individual concerned "in that transaction will be punished, if prosecuted. But all the world knows that the arbitrary exertion of power is unknown to the genius of our constitution, and all that any state can expect of the United States is, that adequate laws should be passed to punish and prevent the commission of such acts. When acts are done in evasion of those laws, unless the government can be charged with winking at those evasions, it is not liable to indemnify Spain for such captures; and our courts of justice cannot, on that ground, violate the obligation.of neutrality by seizing and restoring prizes that have been made by either party.

[Signed] WM. JOHNSON.