Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1825-11-25
UDe Constitutional ggst,fa.
From tie Norfolk Herald.
TnE UN'rED STATES,
The MIA CATALINA, }
THE CLAIMANT, ,
r,. rs. For Damages.

THE CLAIMANT
THE C6prca
Ia the first case the decree of the Court is thu, tn,
libel shall! be dniissed. The cause Las be,,, ,i,tn
any aoandoSrd. The ship has been restored on IN,
oond OF The claimant without surety aud The cuu,se q
to. = ng oy uhe curt and OF argument al the bal
ms " 'or granted that the libel be dismissed
ne second case of The claimant ayainst the cantor
has been s'renuousy and ably argued.
i"o questions have been presented 10 the Court and
lst Whether in the case fore the Court rrnable
cause Tor Tie capture, affords to Tie cap,or RIGHT TO
Claim exemption from damages.
~. Docs probable cause exis; in The present case
of fact = f-''''''
1t IS manifest that it will greatly facilitate the dec
SION OF tic case that the question last stated should he
hrs examined; for if tho Court should he of on,non
that probable cause exists there can ne no ,,,o n
i"r deciding what the law is where probable cause
aces o' exist. Tie Court therefore will give upin
ION on the fnst question, although il takes great rea
sure IN acknowledging, that the learning and ability
employed III tie discussion have pu il into the rove,
! OF the Court TO uim one
IL seems To be admitted that, in the present state OF
u!e case, the o"S prOJtaad lies on the capor II L.
hs duty 10 shoe, that in point fact there cns prota
Die cause Tor the capture and his counsel has there
toFe presented 10 tie view of tie Court the circnr
stances, which, in lis oDinon a,nnr,t,J &, ,ro!hIo
Cause
! ms cause, IT was conrcnded, might exist where
circumstances justified reasonable suspicion The
supreme QUIT II was said had decided that proof Oh
circumstances, winch, primo ttCe, and uucon, oet
by evidence Of other circumstances would lead tn
condemnation would he required; il is sufficient
'o 'c calor TO sliew that lac had ground reason
ac!e suspicion This doctrine is not only admitted but
! s considered by THIS Court enpAcahy applicable
20 that class OF cases 10 which the picscnt case was
originally supposed toGclorg. The art aud cunning
81 ie Pi2'e Ia avoiding suspicion exceeded only
by las audacs ard cruelty when he thinks that lie
can meet it with defiance.
| II was further remarked by the same counsel dat
there was not, and could be, any other definition
or description Of prob bic cause than that ALREADY
given, and that The question of pr,,a be auzh 6auon
cd IN each tue circumstances uccI.,y ia hst
case IIuc-but villa: circurnsa,c The answer
- IN de spirit q te proposition above stated, lhe cir
stahteS Attending each casc al that may be DC.
'eioPed in the process q: t'0ci bat the of which
knowledge nat tie attained ., an cgefon If ordinary
intelligence and activity, either at tic time of lie a-
tnic or III reasonable tiHe afterwards; AT lie yace
81 capture or within reasonable distance. y thi.
II - meant TO be affirmed, that the Captor is not t H.
"'' |" aHaii himself OF single fact, constituting as
i2 may suppose, and correctly sunposc j! s-aniino
"'"nc, gtncod Of reasonable DicoD If lac s shut
his @! Is - 10 circumstances Of very different cLara
'rT W'.ch he might bave seen, ana s cars ags,nsl m
'o!lla'i'n 10 which LIS attention invuael. This
H"ci'hc GcrS not require too much iTc the cantor Of
snip, supposed be o:raticaI. mistake - % the
character OF tie ship IS injurious to 1t, owners and
the owners oil tic Cargo and u'Ii:ng and opprcs-
sIvc to the oiCeTs ats. crew. i!at reason aud Humanity
combine IN requiring !rcT captcr, was sail before
an eXeriIon of ordinary intelligence aud actiyiiv M
obtaining all the iuforrnaon fiy within his roach
Having done tins he may, II would for the bcDc
lit OF all nations engaged in commerce, be allowed the
protection OF the doctrine u probable Cause where
can be applied, matter how injurious or fatal th1.
capture may have turned ont TO be.
The correctness OF this idea, seems 10 be admitted
by Inc course pursued by counsel, The enumeration
OF the circumstances presented to the Court as consti-
u"g, when combined, the probable cause sought to
be established The counsel did not rely on the soil
tarY TACT That there existed information on nat that
piratical act had proceeded from the Nin( Caalana
lie looked for circumstance support this information
and relied on those which will presently be considered.
The claimants alIege that if the captor lad pursued his
course At the proper time If lie had attended 10 all tic
circumstances which were completely and directly
within his reach bc would have found it to he ipossi
bic TO dctain The Nina Catalina as a pirate And on
HIS point 1t Is important TO add, that the instructions
from The Navy Department on which the capor re-
lies IN AID OF las defence distinctly inculcae tic duty
Of the cap,or 40 here explained.
he very rst duty prescribed by those Instructions
seems to Rave been strangely overlooked No ship
could be considered WITHIN their purvcw unless she
or the crew was armed Now it is true that the
captor might have seen from the Spark that there was
something Ike gun on the deck Of the Nnfa Cafaa.
ia, bat whether ii was in reality gun, be did not fake
lie trouble 10 enquiries did lie ever know or even
ask to know, whether the crew armed THIS
conduct was certainly irregular and ncauious.
The place Of the capture leads tie same imputa-
ton 1t seems 10 be doubtful whether the capture yss
made within league of the Havana: one witness at
least, dcposes 10 the fact that it was made within tI
o3SdnCe rom S coast 81 the AI1nd. 1T
to be affirmed, that the fact that the capture was made
within The jurisdiction Of another cgnty could af
feet tie validity ofths capture te captured vessel had
been really piratical but it goes directly 10 show that
tie zeal Of the capIor, stimulated no doubt by the out
RACES and cruces committed by pirates bis cUun
meU, and By honest soicitude to render service
IN the performance Of his duty, led him to overlook
circumstance disregard Of which, though il might not
be resented, could not fail be deeply felt by nation
in amity with the United States.
In further illustration Of this idea il must be o5scrv
ed, that the capOr while in port where the Nina alta
/ lana lay, had received information from Howell. as TO
the praliCa attack proceeding from her on the Nancy
Eleanor do not the captor for having left
the case = Tue COgnzanre of the constituted authority
OF the Island Of Cuba TIE reason it is needless TO state
but although the caPtOr might not be disposed thus to
refer question Of piracy, there reason why he
should not have EIade, while there. both observations
and enquiries other Of which would have satisfied him
Of the true character Of the vessel which had been de
nouuced to him piratical Ills instructions OF this
point explicit Re might have seen that the vessel
had taken in valuable cargo and he might have learn
ed from some person in whom hc could confde the real
character Of the owners and the captain. Tie Consul