Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1825-11-29
THE UNITED STATES,
rs. : For PVdcy.
THE NINA CATALINA,
THE CLAIMANT

The UNITED STATES,
THE NINA CATALINA,
THE c . : :. 70, Damages
In the first case the decree of the Court is that
the libel shall be dismissed The has been
virtually abandoned. The ship has been restored
on the bond of the claimant withou, surety, anj the
course Of proceeding by the Cout and of argument
the bar takes i, TO: granted that the libel is to be
dismissed.
The ~ond case, OF tie claimant against the cap
tor, has been sirenuously and ably argued.
Two questions have been presented 10 the Court
| and discussed
LIST. Whether in the case before the Court, pro-
liable cause Tor the capture, affords TO the captor
right TO claim exemption from damages!
ID. Does probable cause eAist in the present
case?
! The first is question of law, the second ques
| ton OF fact
| 1t is manifest that it will greatly facilitate the de-
cision OF the that the question last stated should
be first examined; for if the Court should be of o.
pinion that probable exists, there can te
no motive for deciding what the law is, where pro-
babe cause does not exist. The Court, therefore,
! will give opinion the first question, although
i, takes great pleasure in acknowledging, that the
| learning aud ability employed in the discussion
have put it into the power of the Court to form
| one.
1t seems to be admitted, that, in the present
state of the case, the oaus prObandi lies the
| captor. 1t is his duty show, that in point of
fact there probable for the capture, and
his counsel has therefore presented the view of
| the Court the circumstances, which, in his opinion,
amounted 10 probable cause.
This cause, it was contended, might exist, where
circumstances justified a reasonable suspicion. The
Supreme Court, it said, had decided, that proof
| of circumstances, which, prnna fGcie, and uncon-
trolledby evidence of other circumstances, would
lead TO a coLdennati>n would not be required; il
Is sufficient for the captor 10 shew that he had
ground for reasonable suspicion. This doctrine
| is not only admitted, but is considered by this
Court emph0ticaiiy applicable to that class of
cases 70 which the present was originally sup
posed TO belong. The ar ard cunning of the pi-
rate in avoiding suspicion exceeded only by his
audaCity and cruelty when he thinks that he can
meet it with defiance.
1t further remarked by the same counsel, that
there not, ard could not be, any other defi1i-
ton description of probable cause than that al
ready given, and that the question Improbable cause
| depended in each case, the circumstances pecu-
| liar TO that case. True--but what circumstances?
The Is, in the spirit of the proposition a
bove stated, the circumstances attending each case
! not al! that may be developed in the process of
| Time; but those OF which a knowledge may be at
tanned by an eXertion of ordinary intelligence and
activity, either at the time of the capture, or in a
reasonable time afterwards at the place OF capture
or within reasonable distance. BY this il is meant 10
be affirmed, that the captor is not at liberty TO avail
himself OF single fact, constituting as he may
suppose, and correctly suppose, if standing alone,
ground OF reasonable suspicion, ii he has shu, his
eyes to circumstances OF a very different charac-
ter, which he might have seen, and his ears against
! Information, to which his attention was invoked.
Ihls doctrine does not require too much from the
captor OF a ship supposed 10 be piratical. a mis-
take TO the character of the Ship is so injurious
TO IT'S owners and the owners of the cargo, and so
Illuminating and oppressive 10 the officers and crew
that reason and humanity combine in requiring from
captor, as said before, exertion of ordina-
ry Intelligence and activity in obtaining all the in
| formation fairly within his reach. Having done
this, he may, it would seem, for the benefit of all
nations engaged in commerce, be ALLOW ed The pro-
lection of The doctrine of probable cause, where it
can be applied, matter how injurious or fatal the
capture may be turned out to be.
The correctness Of this idea, seems TO be admit
ted by the course pursuedby counsel, in the enurne-
ration OF the circumstances, presented 10 the Court
as constituting, when combined the probable cause
sought to be established. The counsel did not rely
on the solitary fact that there existed information
on oath, that piratiral act had proceeded from
the Nina Catalina. He looked for circumstances
10 support this information, and relied on those
which will presently be considered The claimants
aleSe that ii the captor had pursued this al
the proper time; IT he had attended 10 all the cir
cumstances which were completely and directly |
within his reach, lie would have found il to be ir,-
possible to detain the Ninfa Catalina as n pirate
And on this point it is important TO add that the
Instructions from the Navy Department, on which |
the capor relies in aid of his defence; distinctly
nculcate The duty of the captor here explained
Inc very hrst duty prescribed by these instruc-
tions, seems 10 have been strangely overlooked
No ship could be considered as within their pur-
view, unless she herself or the crew was armed |
NOW 1t IS true that the cnpter might have seen from
the Spark, that there was something like a gun on
the deck OF tie Nina Catalina, but whether it |
was IN reality gun, he did not take the trouble 10
enquire; nor did he know, or even ask to |
kHow, whether the was armed or not: This !
conduct was certainly irregular and incaulious.
Ihe place of the capture leads 10 the same i'm
putatlon. 1t seems to be doubtful whether the cap
ture was made within league of the Havana one |
witness, at least, deposes TO the fact, that it was
made within that distance from the coast of the
Island. 1t is not meant TO be afirIlcd that the fact
that the capture was made within the jurisdiction
OF another sovereignty, could affect the validity of
the capture, if the captured vessel had been really
piratical, but it goes directly TO show that the zeal
Of the captor, stimulated no doubt by the outrages
and cruelties committed by pirates on his country
men, and by an honest solicpde TO render service
IN the performance of his duty, led him to overlook
circumstance, disregard of which, though it |
might not be resented, could not fail TO be deeply |
felt by nation in amity with the United States
In further illustration of this idea, it must be OBJ
served, that the captor, while in port where the
Nina Catalina lay, had received information from !
Howell, as to the piratical attack proceeding from
her on the Nancy Eleanor. / do not censure the |
capor for not having left the case to the cognzance
OF the constituted authority of the Island OF Cuba
The it is needless to state; but although the