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20th Congress.] 

No. 358. 

[1st Session.

ON CLAIM OF AN OFFICER OF THE NAVY TO BE INDEMNIFIED OR RELEASED FROM A JUDGMENT AGAINST HIM FOR CAPTURING A SUPPOSED PIRATICAL VESSEL.

COMMUNICATED TO THE HOUSE OF REPRESENTATIVES, MARCH 14, 1828.

Mr. Miller, from the Committee on Naval Affairs, to whom was referred the memorial of Jesse Wilkinson,reported:

That the said Jesse Wilkinson was, and is, a master commandant in the navy of the United States, and, as such, was appointed to the command of the brig Spark , and was furnished with instructions from the Navy Department, dated August 6, 1822, and August 7, 1822, under the act entitled "An act to protect the commerce of the United States, and to punish the crime of piracy," approved March 3, 1819, directing him to cruise along the coasts of the United States and the Floridas, in the Gulf of Mexico, and among the West India islands; and directing him, that, whenever he should find any boats or vessels, the crews whereof should have committed any actual violence, outrage, or depredation upon any vessels of the United States, or the citizens thereof, or any other vessels, (in the last case, only where the depredations were committed under such gross and aggravated circumstances as to leave little doubt of their piratical character,) he would consider himself authorized to subdue, seize, and take them, and unless, on such capture, he should be satisfied that they were acting under some lawful authority, and not piratically, to send them in for adjudication. In another part of the said instructions, the said Jesse Wilkinson is directed that, whatever well-grounded suspicions he might entertain that a vessel may have been fitted out, and was intended to be employed in piratical depredation, he should not molest her unless he had satisfactory evidence she had either attempted or actually committed some piratical aggression on some merchant vessel of the United States, or her crew, or on some other vessel, under the circumstances above mentioned: and he was especially instructed, in the execution of these orders, not to infringe on the territorial jurisdiction of any other power. The memorialist alleges that, while he was waiting with the said brig Spark, in the port of Havana, for a fleet of merchantmen which was to sail under his convoy, on or about January 23, 1823, he was informed by one Thomas Howell, a citizen of the United States, and master of one of the vessels belonging to the fleet of merchantmen waiting convoy, that a schooner was then lying in that harbor, from on board of which an act of robbery and piracy had actually been committed on the American schooner Nancy Eleanor, of Baltimore, in the month of October preceding: that the memorialist there refused to act in relation to the said schooner, being within the jurisdiction of Spain, and referred Mr. Howell, with his complaint, to the American consul, at Havana; that he sailed on his accustomed duty on the morning of January 28, 1823, and, while lying to, at the distance of four or five miles from the coast, he was informed by one of his officers, to whom the vessel had been pointed out by Howell, that the piratical schooner was standing out to sea—a circumstance which the memorialist had not expected, nor had he any knowledge of her; that, being thus informed, and the suspected vessel having got beyond the territorial jurisdiction of Spain, he made sail in pursuit of her, and arrested her, and sent for Mr. Howell, and it was proved, by the papers produced, that the said Howell and one Robert Hudgen then came on board the Spark, and made oath before the memorialist that the captured vessel was the same which had committed the above stated act of piracy on the Nancy Eleanor , and they recognized one of the crew of the captured schooner as being one of the pirates.

The memoralist alleges he did believe that the captured schooner and her crew had committed an act of piracy on the Nancy Eleanor , and did, therefore, send her into the United States, under a prize officer, for adjudication, as a piratical vessel.

By the papers, it appears that this schooner is the Ninfa Catalana, Don Pablo Daunes, master; that she was brought into Norfolk, and by the United States, (by Robert Stanard, their attorney for the district of Virginia, who prosecuted in this respect, as well for the United States, as for the officers and crew of the brig Spark,) was, with her tackle, apparel, furniture, and armament, libeled in the district court of the United States for the district of Virginia, on a charge of piracy and robbery, committed by her crew on the Nancy Eleanor , of Baltimore, a vessel of the United States, in October, 1822. By the decree of the court, it appears that a hearing in the cause was had on the libel; the answer of the said Don Pablo Daunes, and his claim exhibited against the cargo; the monition against the memorialist to proceed to adjudication upon the cargo; the protest and answer of the memoralist, and replication thereto, together with the exhibits filed, and deposition, and evidence produced by the parties. The schooner, her

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tackle, apparel, furniture, and armament were dismissed from the said libel, with damages to be paid by the memorialist for the unlawful capture and detention of the vessel, and for the personal sufferings of the crew: and, afterwards, on the coming in of the report of damages, and after exceptions thereto, on the 5th day of November, 1827, the said court decreed that the said Jesse Wilkinson should pay to the said Don Pablo Daunes:

On behalf of the owners of the schooner

$7,171 03

With interest on $1,183.31, from February 26, 1823, until paid; and, on $5,987.72, from July 26, 1823, until paid.

On behalf of the said Don Pablo Daunes, his officers and crew

1,900 00

For advances of the said Pablo

457 97

On behalf of the owners of the cargo

811 77

With interest thereon, from May 23, 1823, until paid. And the costs of the suit not stated.

It appears that the memorialist, November 19, 1827, wrote to the Secretary of the Navy, informing him of this decree; asked his advice as to the propriety of an appeal, and desired that he might be sustained by the government in the course he should take on such advice; and alleged that it would be utterly impossible for him to give the requisite security to appeal, and that only about fifteen days remained in which to appeal. In the answer of the Secretary of the Navy, of November 22, 1827, he was informed that it did not appear to the Secretary to be proper for the Department to give advice, or make any engagement which would, in the case, create responsibility upon the Department, and referred him to Congress, after a full defence in the judicial tribunals.

Throughout, the memorialist alleges that he acted from a sense of duty, and in the belief that the Ninfa Catalana had actually committed the piracy alleged. At his request to the President, a court of inquiry was appointed, to inquire into the conduct of the memorialist in making this capture. The evidence, in the original papers on file in the Navy Department, is too voluminous to be introduced here, especially as the result is stated in the annexed letter of Secretary of the Navy, of August 13, 1823, that "there was no reason to believe but that he acted in good faith, and under the belief that he was in the due discharge of his duty." The committee assent to the correctness of this opinion, and add their belief of the fact, alleged by the memorialist, that he was unable to procure the bail required to appeal from the said decree. He alleges his person is daily liable to be taken in execution on this demand.

These, the committee believe to be the principal facts in the case, and they report a bill for the relief of the memorialist. They do it upon the ground that the memorialist, at the time of the capture and sending in of the schooner Ninfa Catalana, had good reason to believe, and did believe, that she and her crew had committed an act of piracy and robbery on the Nancy Eleanor , of Baltimore, a merchant vessel of the United States; that he made this capture in good faith, and in the reasonable belief that his instructions, under the law of the United States, required him to do so; and that he was too poor, and unable to procure the bail requisite to enable him to appeal from the said decree; that he used his endeavors to procure an appeal to be prosecuted; and that, as relates to his government, he ought not, where he acted from probable cause and under a sense of duty, to be made responsible for any act of the prize master, towards the captured, which he could neither foresee nor prevent.

The committee, from the nature of the decree, (part of the money bearing interest until paid,) cannot state the exact amount which may be necessary to satisfy the money decreed to be paid They therefore annex a statement of the amount, supposing the rate of interest to be 6 per cent., and the time of payment to be May 1, 1828.

1. On behalf of the owners of the schooner

$7,171 03

With interest on $1,183.31 from the 26th of February, 1823, to May 1, 1828,

five years two months and four days

$367 60

Also, on $5,987.72 from July 26, 1823, until May 1, 1828, four years nine months and four days

1,710 49

2. On behalf of Don Pablo Duanes

1,900 00

3. And for his advances

457 97

With interest from November 5, 1827, to May 1, 1828, five months and twenty-five days

68 77

4. On behalf of the owners of the cargo

811 77

Interest from May 23, 1823, to May 1, 1828, four years eleven months and

seven days

240 40

2,387 26

Amount of decree, including interest to May 1, 1828

$12,728 03

Add taxed costs, as certified

511 45

$13,239 48

To the honorable the Senate and House of Representatives of the United States of America:

The petition of Jesse Wilkinson, a master commandant in the navy of the United States, most respectfully showeth: That the frequent occurrence of acts of piracy and depredation upon the commerce of the United States, in the West Indies, for several months previously to the third of March, eighteen hundred and nineteen, having occasioned the passage of an act of Congress of that date, by which the President was authorized and requested to employ so many of the public armed vessels as, in his judgment, the service might require, in protecting the merchant vessels of the United States from piratical aggression, several vessels-of-war were accordingly designated for that service, with orders to cruise along the coasts of the United States and the Floridas, in the Gulf of Mexico, and among the West India islands. The brig Spark was one of the public armed vessels thus employed, and, in the month of August,

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one thousand eight hundred and twenty-two, your petitioner was appointed to the command of her, and was furnished from the Navy Department with instructions explanatory of the act of Congress above-mentioned, and of the duties which were required of him in carrying it into execution.

By the fourth paragraph of those instructions your petitioner was admonished to subdue, seize, and take such vessels or boats only as should actually have attempted or committed some piratical aggression, and not such as he might have even the strongest reason to suspect of having been fitted out or intended to be employed in such depredations.

He was directed to consider this an important and leading regulation in his conduct, and as a strong and almost controlling circumstance in enabling him to determine whether such vessels as he might fall in with were of a piratical character or otherwise. By the concluding part of the same paragraph your petitioner was expressly authorized, and, as he humbly conceived, enjoined, whenever he should find any boats or vessels, the crews of which had committed any actual violence, outrage, or depredation upon any vessels of the United States, or the citizens thereof, to subdue, seize, and take them, and, unless on such capture he should be satisfied that they had acted under some lawful authority, to send them in for adjudication. And for the better understanding of the object and scope of the said instructions, your petitioner respectfully annexes them hereto. Your petitioner most respectfully represents to your honorable body that the duty specially assigned to him, by the commander of the squadron to which he was attached, rendered it necessary that he should be frequently at Havana; as it required him once a week to convoy all American vessels sailing from that port to such a distance at sea as would remove them from the hazard of the piratical outrages then so frequent on the coast of Cuba. On or about the twenty-third of January, one thousand eight hundred and twenty-three, while your petitioner was in port waiting for the fleet of merchantmen which was to sail under his convoy, he was informed by a certain Thomas Howell, a citizen of the United States, and the master of one of the vessels belonging to the fleet, that a schooner was then lying in the harbor, from on board of which an act of robbery and piracy had actually been committed on the American schooner Nancy Eleanor, of Baltimore, in the month of October preceding. Your petitioner, after receiving this information from Howell, advised him to make the same fact known to the American consul at Havana, on whom the duty devolved of attending to such communications in port, and at the same time stated to him that he himself was precluded by his official station, and by his orders, from taking upon himself any agency or concern in relation to the case while within the Spanish territories. On the morning of the twenty-sixth of January your petitioner sailed on his accustomed duty, and while lying to at the distance of some four or five miles from the coast, waiting for the fleet to collect and form under his convoy, he was informed by one of his officers, to whom the vessel had been pointed out by Howell, that the piratical schooner was then standing out to sea. Your petitioner at the time of leaving the port had no information whatever, or suspicion that this vessel would so soon follow him, nor had he himself any knowledge of her so as to be capable of identifying her. Being thus informed, however, and the suspected vessel having then passed beyond the limit which terminated the territorial jurisdiction of Spain, he made sail in pursuit of her, and having arrested her, sent his boat for the captain of the Nancy Eleanor, one of the vessels composing the fleet, and the same which was said to have been plundered as before mentioned, in order to inquire more particularly as to the identity of the schooner thus arrested. Howell soon came on board the Spark , accompanied by his mate, Robert Hudgin, and there both of them made oath that the vessel then detained was the same from on board of which the aforesaid piratical aggression had actually been committed, and that they recognized a man then belonging to her crew as one of those who had boarded the Nancy Eleanor on that occasion. And at the same time the said Howell put into the hands of your petitioner an affidavit, made by himself and one Jacob Sheeffer before the American commercial agent at Havana, copies of both of which affidavits are hereto annexed. Under these circumstances, and upon this evidence, your petitioner, conscientiously and faithfully intending to act in obedience to his orders, deemed it to be a duty, imperiously required of him by the instructions to which he has adverted, to capture this vessel and send her into the United States for adjudication. Subsequent events have shown him the hazard at which an officer, with whatever good faith he may design to perform his duty, is sometimes compelled to carry into execution orders and instructions which he is sworn to obey. But he respectfully and confidently trusts that your honorable body will exonerate and protect him from the heavy and overwhelming loss with which he is now threatened, since, situated as he was, if he had not made the capture in question, no apology he could have offered, and no explanation he could have given, would have been considered adequate to exempt him from the severe censure of his government and the just reprobation of his fellow-citizens. Actuated by all these considerations, your petitioner ordered a prizemaster and crew on board the vessel thus detained, which proved to be the Spanish schooner Ninfa Catalana, and sent her into the United States for adjudication. The officer placed in charge of her deemed it necessary for the security of the prize to put some of the men in irons; but your petitioner is perfectly persuaded, from his intimate knowledge of the deportment and character of that officer, that no causeless degree of rigor was practiced by him, and that the prisoners were treated in all respects with as much humanity and kindness as was consistent with the duty imposed upon him. The Ninfa Catalana, with the cargo with which she was laden, arrived at Norfolk about the twelfth of February, eighteen hundred and twenty-three, and was delivered, without breaking bulk, to the marshal of the United States. The district court of the United States for the eastern district of Virginia, the only court in which proceedings could be instituted against her, did not commence its session until the month of May ensuing. At that term the legality of the capture, so far as the then existing evidence could test it, was recognized by the government, and a prosecution commenced by its official agent, the district attorney, for the purpose of enforcing the condemnation of the vessel under the act of Congress before referred to, as will better appear from a copy of the libel hereto annexed. At the same term, a claim was asserted by Don Pablo Daunes, the master, in behalf of the owners of the vessel and cargo, for damages occasioned by the capture; and compensation was sought by the master and crew of the captured vessel for the personal injuries alleged to have been sustained by them. On the part of the United States and your petitioner, the cause was conducted by Robert Stanard, Esquire, district attorney, and Robert B. Taylor, Esquire; but the claimant having procured a great number of depositions from Havana, Campeachy, and Sisal, all of which concurred in proving that the witnesses on the part of the United States had erroneously sworn to the Ninfa Catalana as the same vessel from which the piratical act before mentioned had been committed, the court deemed it incumbent upon itself to pronounce a decree acquitting the vessel, and condemning your petitioner in costs and damages. A copy thereof is hereto respectfully

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annexed. The commissioners, under this decree, having made up the report required of them, and submitted it for the ratification of the court, various exceptions were urged against it on the part of your petitioner, some of which were sustained, and the report recommitted to be further acted on. At the late term of the court, held in the month of November last, the report, as amended by the commissioners, was again returned to the court, and exceptions being again filed thereto by your petitioner, the same were "argued, and a final decree pronounced in the cause, a copy of which is presented herewith. Your petitioner had leave to appeal from the decree within thirty days after the date thereof, upon his entering into bond, with good and sufficient security, in the sum of twenty thousand dollars. He had already incurred considerable disbursements and expenditures in relation to the cause, and a competent tribunal having thought it right to adjudicate against the legality of the capture, he did not know whether it would be expected that he should appeal from that decision or not. As he was himself unable, however, to give security to the amount required, he wrote to the Secretary of the Navy, apprising him of all the circumstances, and desiring to know what course he ought to pursue, and whether, if he ought to appeal, the Department could render him any aid in procuring the necessary security.

The answer which he received informed him that it was not competent for the Department to afford him the desired assistance, or to contribute, in any way, to enable him to carry up the cause to a superior judicial tribunal.

Your petitioner is therefore compelled to submit his case most respectfully to the consideration of your honorable body. He entered the navy of the United States in the year eighteen hundred and five, and, throughout all the intervening period, he has devoted himself most faithfully to the service of his country. He trusts he may be permitted to say, with honest pride, that his conduct has been approved. In relation to the subject of. the present application, the late President of the United States, persuaded of the good faith with which your petitioner acted, was pleased to exempt him from any censure as to the course which he pursued, and he was continued in actual service, and transferred to the command of a ship of the largest class to which an officer of his grade can be assigned. Your petitioner most respectfully represents that he is entirely unable to satisfy the decree which has been rendered against him. A resort to him individually for its payment would expose a wife and five small children to poverty and destitution, and himself to an imprisonment, the duration of which cannot be foreseen. He forbears to obtrude upon you a repetition of the considerations which have, in several similar cases, been received as furnishing an adequate motive for granting the relief he now solicits, and most respectfully prays that a law may be enacted appropriating, out of the public treasury, so much money as may be required to pay and satisfy the said decree so rendered, as aforesaid, against him. And as in duty bound he will ever pray, &c, &c.

J. WILKINSON.

General instructions.

Navy Department, August 6, 1822.

Sir:

Enclosed you have a copy of an act of Congress, by which you will perceive that a high and delicate power is vested in the President, in authorizing him to employ our public armed ships in protecting the merchant vessels of the United States and their crews from piratical aggressions and depredations. It will readily occur to you that, considering the situation in which we stand in relation to Spain and the South American colonies, the authority given under this act must be exercised with the utmost caution and prudence by our public vessels. You have the whole act laid before you, that you may see its general scope and object; but you will observe that the execution of the law is under the direction of the President, so far as respects the employment of our public vessels. Your conduct will, therefore, be regulated by your instructions, although they may not go to the full length the law might possibly warrant.

Under the second section of the act, authority is given to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or seizure upon any vessel of the United States, or of the citizens thereof, or upon any other vessels.

From the generality of this latter description of vessels, it would seem to embrace those of every nation or country upon which any piratical aggressions may have been committed. Admitting the act might be extended thus far, it does not appear to have been the general object of the law; and it is thought by the President most advisable, at present, not to give it a like indiscriminate practical construction as to all vessels. The great object, as pointed out in the first section of the act, was to protect the merchant vessels of the United States and their crews from piratical aggressions. This will, therefore, be considered your particular and special duty. If, however, you shall discover depredations upon other vessels, committed under such gross and aggravated circumstances as to leave little doubt of their piratical character, it will be your duty to capture and bring in the aggressors. It is thought most advisable thus to distinguish in your instructions, because, among other considerations, it will be seen that under the second section of the act you are only authorized to retake vessels of the United States or its citizens, which may have been unlawfully captured upon the high seas. No authority is given to retake the vessels of any foreign nation or country.

You will also perceive, under this second section of the act, authority is only given to. subdue, seize, and take such vessels or boats, &c, as shall have attempted or committed some piratical aggression. Whatever well-grounded suspicions you may entertain that a vessel may have been fitted out, and is intended to be employed in such depredations, you will not molest her, unless you have satisfactory evidence that she has either attempted or actually committed some piratical aggression on some merchant vessel of the United States, or her crew, or upon some other vessel under the special circumstances above mentioned. This is to be considered an important and leading regulation in your conduct, as it will be a strong and almost controlling circumstance, (considering we are at peace with all the world,) in making up your judgment, whether you are safe and justifiable in treating them as pirates. Whenever, therefore, you shall find any boats or vessels, the crews whereof have committed any actual violence, outrage, or depredation upon any vessels of the United States, or the citizens thereof, or any

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other vessels, as above mentioned, you will consider yourself authorized to subdue, seize and take them, and unless on such capture you shall be satisfied that they were acting under some lawful authority, and not piratically, to send them in for adjudication.

The range of your cruise will be along the coast of the United States and the Floridas, in the Gulf of Mexico, and among the West India islands, changing your position in such manner as shall best answer the object of your cruise; touching at such ports and places as may be necessary and proper to procure supplies, and to obtain information the better to enable you to carry into effect the objects contemplated in the act of Congress. Great reliance is placed on your prudence and sound discretion, that you will so execute the power entrusted to you as to protect the commerce of the United States, without infringing the lawful rights of any other nation or country, their citizens or subjects. All captures made by you will be sent into one of the following ports: Boston, New York, Norfolk, Charleston, Savannah, or New Orleans.

You have also enclosed such parts of several acts of Congress, prohibiting the importation of slaves into any ports or places within the jurisdiction of the United States, as are necessary to point out to you your duty and authority under these laws; and it is expected and required of you by the President that a strict and vigilant attention be paid to the direction therein contained; that if possible this inhuman and disgraceful traffic may be suppressed.

By the act of the 20th of April, 1818, you will perceive that it is made unlawful to import, or bring in any manner whatsoever into the United States or Territories thereof, from any foreign kingdom, place, or country, any negro, mulatto, or person of color, with intent to hold, sell, or dispose of such person as a slave, or to be held to service. By this act it is also made unlawful for any citizen of the United States, or other person, to build, equip, load, fit, or otherwise prepare any ship or vessel in any port or place within the jurisdiction of the United States, or to cause any such ship or vessel to sail from any port or place whatsoever within the jurisdiction of the United States, for the purpose of procuring and transporting any such slaves to any port or place whatever. And any ship or vessel employed in such importation of slaves, or so built, fitted out, or prepared, is liable to be seized and forfeited.

And, by the act of the 3d of March, 1819, the President is authorized to employ any of the armed vessels of the United States to cruise in such places as he may think proper, where he may judge attempts may be made to carry on the slave trade, by citizens of the United States or residents thereof, in contravention of the acts of Congress prohibiting the same; and to instruct such armed vessel to seize, take, and bring into any port of the United States, to be proceeded against according to law, all ships or vessels of the United States, wheresoever found, which may have taken on board, or which may be intended for the purpose of taking on board, or of transporting, or may have transported, any negro, mulatto, or person of color, in violation of any of the provisions of the act of the 20th of April, 1818, above referred to, or in violation of any other act or acts prohibiting the traffic in slaves.

You will perceive, from the generality of the provisions in these laws, you are authorized to take and bring in all ships or vessels of the United States which may have been in any manner employed, or intended to be employed, in the slave trade, or any other vessel offending against the provisions of any of the laws you have enclosed. You will particularly notice the two provisos to the first section of the act of 1819, the first of which directs in what manner you are to keep and dispose of the slaves which may be found on board of any ship or vessel seized by you. If brought within the United States, they are to be delivered to the marshal of the district where brought in; and transmit the evidence of such delivery to this Department. It is the wish of the President, however, that none should be brought into the United States. Upon the capture, therefore, of any vessel having slaves on board, you will immediately proceed to the Island of Sherbro, on the coast of Africa, and deliver such slaves to the agent appointed by the President to receive them, pursuant to the provisions of the act, or to any other agent so appointed at any other place on the coast of Africa. The second proviso relates to the disposition of the officers and crews of such vessels so captured by you. Great vigilance will be expected from you in the safe keeping of all such officers and crews, until they shall be handed over to the civil authority, to be proceeded against according to law.

You will also observe that, by the fifth section of this act, it is made your duty to bring any vessel, and her cargo, you may capture, into some of the ports of the State or Territory to which the captured vessel shall belong, if you can ascertain the same; if not, then into any convenient port of the United States.

The range of your cruising for this purpose will be the same as that pointed out in the former part of your instructions in relation to pirates.

I am, very respectfully, your most obedient servant, JOHN BOYLE.

By order of the Secretary of the Navy.

Capt Jesse Wilkinson, commanding U. S. Brig Spark, Norfolk, Va.

Additional general instructions.

Navy Department, August 7, 1822.

You will not consider your general instructions, under the laws of the United States for the suppression of the slave trade, as authorizing you, at any place out of the waters of the United States, to search, capture, or, in any manner whatever, to interrupt vessels under any other than the American flag. Nor will you, in the execution of your instructions for the suppression of piracy and the protection of our commerce, infringe upon the territorial jurisdiction of any other power.

By order, &c.

JOHN BOYLE.

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1.

We do solemnly swear by the Holy Evangelists of Almighty God that the schooner now detained by the United States brig Spark, J. Wilkinson, Esq., commander, is the same, and the man now before us one of the number, who boarded the schooner Nancy Eleanor , of Baltimore, about the 16th of October last, and plundered her of a number of articles, as expressed in a deposition before John Warner, commercial agent at Havana for the United States, dated 25th January, 1823.

THOMAS HOWELL.

ROBERT HUDGEN.

U. S. Brig Spark , January 26, 1823. Sworn and signed before

J. WILKINSON, commanding U. S. Brig Spark.

2.

Copy of a deposition taken before the commercial agent at Havana.

United States commercial agency:

Personally appeared Thomas Howell, master of the American schooner Nancy Eleanor, of Baltimore, before me, John Warner, commercial agent of the United States of America at the city of Havana, who, being duly sworn on the Holy Evangelists of Almighty God, did depose and say: That he sailed on board the said schooner Nancy Eleanor as a supercargo from the port of Trinidad, in the Island of Cuba, on the 1th day of October last, or thereabouts, said vessel then under the command of John W. Butler, with a cargo of sugar, beans, beeswax, wine, rum, tobacco, segars, &c, &c, bound to the port of Balize, in the Bay of Honduras.

That said vessel was boarded, on or about the 16th of said month of October, by the crew of a schooner, Santissima Trinidad, consisting of nine men, under Colombian colors, and said to be from Santa Martha, bound on a cruise. The said crew, on boarding of us, demanded of Captain Butler his papers, which were accordingly given up, and after examining said papers, they declared to Captain Butler that his vessel and cargo was a good and lawful prize to them; and they immediately commenced tearing up the hatches and taking out of the hold, say ten barrels sugar, ten barrels beans, four bales beeswax, six kegs wine, six kegs rum, two bales tobacco, ten boxes segars, three half barrels filberts, with some Other articles not now recollected; all of which were put upon the deck, and the said crew then proceeded to search the cabin, and took from thence eighteen straw hats, one barrel rum, one lump, 40 lbs., sugar, one box segars, a part of a bale of tobacco, one barrel Cognac brandy, and some other articles belonging to passengers; which articles they passed into the boat, leaving the aforementioned articles taken out of the hold upon the deck, stating that, notwithstanding said schooner was a good prize to them, yet they did not consider it an object to hold her, and accordingly left us; the wind blowing fresh and the sea running high. This deponent doth further declare, that said schooner is about 190 tons, her stern unusually straight, coppered within two streaks of her bends, a lead colored boot top, her sides painted black with a white streak, her scuttle abaft the companion covered with a wooden grating, with something like a round house or necessary erected on her larboard quarter, armed with one pivot gun situate well forward; which vessel, called the Santissima Trinidad , aforesaid, this deponent doth verily believe is now in this harbor of Havana.

THOMAS HOWELL.

Sworn and signed before me, the commercial agent of the United States of America at Havana, to which I hereby affix my hand and the seal of my office, at the city of Havana aforesaid, this twenty-fifth day of January, 1823, and of the independence of the United States of America the forty-seventh.

JOHN WARNER.

Jacob Shaeffer, seaman on board the aforesaid schooner Nancy Eleanor , having heard the aforesaid deposition read, doth depose to the truth of what is therein set forth.

JACOB SHAEFFER.

Sworn and signed before me.

JOHN WARNER.

3.

Copy of the libel in the case of the United States, &c, against the schooner Ninfa Catalana, &c.

Before you, the honorable Saint George Tucker, judge of the district court of the United States for the district of Virginia, comes Robert Stanard, attorney of the United States for the district of Virginia, who prosecutes in this respect for the said United States, and also for the officers and crew of the brig Spark , a public vessel-of-war of the United States, and, in the name and behalf of the said United States and the officers and crew aforesaid, alleges, propounds, and charges as follows, that is to say:

Firstly. That by an act of the Congress of the United States, passed the ----- day of -----, -----,

it is among other things provided and enacted that whenever any vessel or boat, from which any piratical aggression, search, restraint, depredation or seizure shall have been first attempted or made, shall be captured or brought into any port of the United States, the same shall and may be adjudged and condemned to their own use and that of the captors, after due process and trial in any court having admiralty jurisdiction, and which shall be holden for the district into which such captured vessel shall be brought.

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Secondly. That on or about the 16th day of October, 1822, on the high and open seas, to wit, in the Gulf of Mexico, a certain vessel called the Santissima Trinidad, and since called the Ninfa Catalana, possessed and owned by certain persons to the said attorney unknown, then and there being, without any lawful authority from any prince, people, government, colony or district, to cruise and make captures or seizures on the high and open seas, and a certain vessel called the Nancy Eleanor, of Baltimore, the property of citizens of the said United States, with a cargo on board, the property also of citizens of the said United States, and engaged in lawful commerce, then and there also being; the said last mentioned vessel was then and there detained by the force and power of the said vessel called the Santissima Trinidad, otherwise called the Ninfa Catalana, and of the persons navigating that vessel and divers persons, the officers and crew of the said vessel called the Santissima Trinidad, otherwise called the Ninfa Catalana, did then and there, with force and arms, from the said vessel called the Santissima Trinidad, otherwise called the Ninfa Catalana, unlawfully and piratically enter upon board, break and search the said vessel called the Nancy Eleanor, of Baltimore, the property as aforesaid of citizens of the United States, and divers articles, to wit: ten barrels of sugar, ten barrels of beans, four barrels of beeswax, six kegs of wine, six kegs of rum, two bales of tobacco, ten boxes segars, eighteen straw hats, one barrel of rum, and one barrel of brandy of the cargo, and other property on board the said vessel called the Nancy Eleanor, of Baltimore, belonging to citizens of the said United States, did then and there unlawfully and piratically rob, take and carry away; whereby an act of piratical aggression, search, restraint, depredation and seizure was then and there committed from the said vessel called the Santissima Trinidad, otherwise called the Ninfa Catalana, on and against the said vessel called the Nancy Eleanor, of Baltimore, and the cargo and property aforesaid on board that vessel, and by force of the before recited act of Congress or otherwise, the said vessel called the Santissima Trinidad, otherwise called the Ninfa Catalana , was and is liable to seizure, capture, forfeiture and condemnation.

Thirdly. That Jesse Wilkinson is, and at the times hereafter mentioned in this libel was, commander of the brig Spark , a public vessel-of-war of the United States.

Fourthly. That after the committing of the said act of piratical aggression, search, restraint, depredation and seizure from the said vessel called the Santissima Trinidad, otherwise called the Ninfa Catalana, to wit, on or about the 26th day of January, 1823, on the high seas, on the Atlantic ocean, the said Jesse Wilkinson, the officers and crew of the said brig Spark, did subdue, seize and capture the said vessel called the Santissima Trinidad, otherwise called the Ninfa Catalana , as liable to capture, forfeiture and condemnation, by reason of the committing of the said act of piratical aggression, search, restraint, depredation and seizure, or otherwise.

Fifthly. That the said vessel called the Santissima Trinidad, otherwise called the Ninfa Catalana , having been so seized and taken as aforesaid, has been brought into the port of Norfolk, a port of the United States, for legal adjudication, and is now in the said port, within the jurisdiction of this honorable court.

Sixthly. That by reason of the premises the said vessel called the Santissima Trinidad, otherwise called the Ninfa Catalana, her tackle, apparel, furniture and armament have become forfeited to the said United States, and to the officers and crew of the said brig called the Spark , a public vessel-of-war of the said United States.

Lastly. That all the premises are and were true, of which proof being made, the said attorney prays the usual process and monition of the honorable court in this behalf to be made, and that all persons interested in the said vessel called the Santissima Trinidad, otherwise called the Ninfa Catalana, her tackle, apparel, furniture, and armament, may be cited, in general and special, to answer the premises; and all due proceedings being had, the said vessel called the Santissima Trinidad, otherwise called the Ninfa Catalana , her tackle, apparel, furniture, and armament, may, for the cause aforesaid, and others appearing, or that may appear, be condemned as forfeited by the definitive sentence and decree of this honorable court; and that the same may be sold, and distribution of the proceeds thereof made according to law.

ROBERT STANARD, Attorney of United States for the District of Virginia.

4.

At a district court of the United States for the district of Virginia, held at the court house, in the borough of Norfolk, on Monday, the fourteenth day of November, in the year of our Lord one thousand eighthundred and twenty-five:

THE UNITED STATES OF AMERICA, as well on behalf of themselves as of the officers and crew of the United States brig-of-war Spark , Jesse Wilkinson, Esq., commander,

against

THE SCHOONER NINFA CATALANA , her tackle, apparel, furniture, and armament.

This court, having had under its consideration the libel filed by the United States, in their own behalf, and in behalf of the officers and crew of the brig-of-war Spark, Jesse Wilkinson, commander, against the schooner Ninfa Catalana, her tackle, apparel, armament, and furniture, and the claim and answer of Don Pablo Daunes, master and commander of the said schooner; and, also, the claim exhibited by the said Don Pablo Daunes against the cargo of the said schooner Ninfa Catalana; the monition, against the said Jesse Wilkinson, to proceed to adjudication upon the said cargo; the protest and answer of the said Jesse Wilkinson, and the replication thereto, together with the several exhibits filed, and depositions and evidence produced, on the part and behalf of the said parties, respectively; doth adjudge, order and decree, that the libel aforesaid, against the said schooner Ninfa Catalana, her tackle, apparel, armament, and furniture, be dismissed, with damages for the unlawful capture and subsequent detention thereof; and, also, damages for the personal sufferings and injuries sustained by the master, officers, and crew of the said schooner Ninfa Catalana , by reason, and in consequence of, the said capture and detention. And it appearing, by a former order of this court, that the cargo aforesaid has been restored to the claimants

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aforesaid, without prejudice to the question of damages, the court doth now overrule the protest of the said Jesse Wilkinson to the claim and monition of the said Don Pablo Daunes; and doth further order, adjudge, and decree that the said Jesse Wilkinson pay to the said claimant, for and in behalf of the respective owners of the cargo aforesaid, the damages sustained thereupon by reason of the unlawful capture and detention of the said schooner as aforesaid; and to the end that the said damages hereby decreed may be truly and justly ascertained, the court doth constitute and appoint John Cowper, John Tabb, David Maitland, John R. Howard, and Wright Southgate, commissioners, to estimate and settle the amount thereof, having regard to the several items or principles set forth in the schedule filed by the claimant, in pursuance of the direction heretofore given by the court. And the said commissioners, any three of whom are empowered to act in the premises, shall, before they proceed therein, be sworn before a public notary fairly and impartially to estimate and settle the amount of damages as aforesaid, and are to give reasonable notice to the claimant, and to the said Jesse Wilkinson, respectively, or to their respective agents or attorneys, of the several times of their assembling to hear and receive the testimony upon which this decree is to be carried into effect; and of their doings, by virtue thereof, they are to make report at or before the next meeting of this court.

5.

At a district court of the United States for the eastern district of Virginia, held at the court house, in the borough of Norfolk, on Monday, the fifth day of November, in the year one thousand eight hundred and twenty-seven:

THE UNITED STATES OF AMERICA, as well in behalf of themselves as of the officers and crew of the United States brig-of-war Spark , Jesse Wilkinson, Esq., commander,

against

THE SCHOONER NINFA CATALANA , her tackle, apparel, armament, and furniture.

This cause came on again to be heard upon the papers, exhibits, depositions, and evidence, heretofore filed and produced, and upon the amended report of the commissioners, to whom the former report was recommitted, and upon the exceptions filed in behalf of the captor, Jesse Wilkinson, to the said amended report, and was argued by counsel. On consideration whereof, the court—overruling all the exceptions, as to the first article of the said report, except as relates to the period from which the interest ought to have been calculated; overruling, also, all the exceptions as to the second article of the said report; sustaining the exceptions as to first, second, and fifth sections of the third article of the report; sustaining, also, the exception to the third section of that article, so far as the same embraces charges and expenses upon the cargo, incurred subsequently to the day of the restitution of the cargo, and adopting, in lieu of the said third article, the substitute therefor, appended to the said report, and marked A—doth adjudge, order, and decree, that the aforesaid Jesse Wilkinson pay to Don Pablo Daunes, the claimant in this cause, for and in behalf of the owner of the aforesaid schooner, the Ninfa Catalana , the sum of seven thousand one hundred and seventy-one dollars and three cents; with interest on eleven hundred and eighty-three dollars and thirty-one cents, part thereof, from the twenty-sixth day of February, one thousand eight hundred and twenty-three, until paid; and on five thousand nine hundred and eighty-seven dollars and seventy-two cents, the residue thereof, from the twenty-sixth day of July, one thousand eight hundred and twenty-three, until paid; and, also, that the said Jesse Wilkinson pay to the said claimant, in behalf of himself and of the officers and crew of the said schooner, the sum of nineteen hundred dollars, to be distributed as follows, to wit:

To the claimant, Don Pablo Daunes, $400; Nicholas Gorgoll, $400; José Maria Peres, $100; Pedro Rivero, $100; Tomas de la Santos, $100; Benita Bertrean, $100; Juan Medino, $100; Ines Vicunia, $100; Francis Menesses, $100; Jose Antonio Rodrigues, $100; Domingo Valeto, $100; José Maria Pereira, $100; Jose Maria Telefort, $100; and that the said Jesse Wilkinson also pay to said claimant the sum of $457.97, the sum advanced by him, in behalf of himself, his officers, and crew, as appears from the second article of the report of the commissioners; and, also, that the said Jesse Wilkinson pay to the said claimant, in behalf of the owners of the cargo of the aforesaid schooner, Ninfa Catalana , the sum of $811.77, according to the aforesaid substitute for the third article of the said report, with interest thereon from the twenty-third day of May, one thousand eight hundred and twenty-three, until paid; and that the said Jesse Wilkinson also pay to the said claimant all the costs of court by him incurred in the course of the prosecution of this cause; in taxing which costs, the clerk is to except therefrom any charge, if any there be, which may have been already allowed by the commissioners in their report.

District Court of the United States for the Eastern District of Virginia, Clerk's Office, Norfolk, December 22, 1827.

I, Seth Foster, clerk of the said court, do hereby certify that the foregoing writings, numbered from one to five, inclusive, are true copies of the original affidavits, libel, and decrees, of which they severally purport to be copies; which said originals are filed and of record in the district court aforesaid.

In testimony whereof, I have hereunto set my hand, and affixed the seal of the said court, this  twenty-second day of December, in the year of our Lord one thousand eight hundred andtwenty-seven.

[SEAL]

SETH FOSTER, Clerk.

Schedule of taxed costs, United States of America vs. Schooner Ninfa Catalana.

I, Seth Foster, clerk of the district court of the United States for the district of Virginia, at Norfolk, do hereby certify that the annexed schedule contains a true account or the costs of prosecution allowed in the case of the Ninfa Catalana , to wit:

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SCHEDULE.

Attorney's fee

$17 00

Marshal of Virginia, custody and fee

53 00

Marshal of Maryland, serving three subpoenas and traveling, &c, at $10 each

31 50

Clerk, his fees, issuing citation, monition, returns, and subpoenas, entering protests, depositions, continuances, entering the order of court, final decree, and records and exemplification thereof

50 95

Publishing interlocutory order and libel

10 00

Commissioners' charge, appointed by the court to estimate the amount of damages, three commissioners, 12 days, at $6 per day, is $72 each

$216 00

Clerk to the commissioners, 11 days, at $3 per day

33 00

249 00

$411 45

There is an account, filed by Don Pablo Daunes, of incidental expenses incurred by him in the prosecution of the suit, and which have not yet been submitted to the court, not noticed in the above schedule.

In testimony whereof, I have hereunto set my hand, and affixed my seal of office, at Norfolk, this [seal.] twenty-fifth day of February, in the year of our Lord eighteen hundred and twenty-eight.

SETH FOSTER, Clerk.

Navy Department, February 8, 1828.

Sir:

I have the honor to acknowledge your letter, without date, received on the 6th inst., respecting the case of Master Commandant Jesse Wilkinson, and to make the following answers to inquiries which it contains.

Soon after the Ninfa Catalana was brought into Norfolk, viz: on the 31st of May, 1823, a court of inquiry was ordered, on the application of Master Commandant Wilkinson. The original record of that trial is enclosed as a paper tending to show the grounds of making the capture. The original record is sent because it is not possible to prepare a copy, and I have, respectfully, to request that it may be returned to the Department after the committee have used it. The result of the inquiry, in the opinion of the Executive, at that time, is found in the letter from the Department to Master Commandant Wilkinson, marked A.

Since that letter no correspondence is found between the Department and Master Commandant Wilkinson, on this subject, until that of which papers B and C are copies, and which are referred to in his memorial.

I have not been able to discover any case which approaches so near, in principle, to this, as that of Captain Murray, which was provided for by act of Congress, approved 31st of January, 1805, to which I beg leave to refer you. The papers in the case will probably be found on the files of the House of Representatives.

I am, very respectfully, &c., SAM'L L. SOUTHARD.

Hon. Michael Hoffman, Chairman Naval Committee, Souse of Representatives.

A.

Navy Department, August 13, 1823.

Sir:

I have submitted to the consideration of the President the proceedings of the court of inquiry on your conduct in the capture of the Spanish schooner Ninfa Catalana , who has instructed me to say to you that, considering this vessel was within the jurisdiction of the Spanish authorities of the Island of Cuba when Captain Howell made his application and complaint to you, it would have been more prudent and discreet in you to have turned him over to such authorities for redress. Nevertheless, as there is no reason to believe but that you acted in good faith, and under the belief that you were in the due discharge of your duty, he does not think your conduct deserving of censure. I am, respectfully, your most obedient servant,

SMITH THOMPSON.

Capt. Jesse Wilkinson, United States Navy, Norfolk, Va.

B.

Norfolk, November 19, 1827.

Sir: By the late decision of Judge Hay, in the case of the Spanish schooner Ninfa Catalana , I have been sentenced in damages to the amount of ten thousand dollars and upwards, besides cost and charges, which, included, amount to upwards of thirteen thousand dollars.

I have been advised by my counsel to represent the case to you, and to ask your advice as to the propriety of an appeal, and to request that I might be sustained by the government in the course you may advise, as it would be utterly impossible for me to give security for the amount required.

I herewith enclose you the copy of a letter from your predecessor,* to show the view taken of the subject at that time, and I do assure you, sir, that I was actuated in the whole affair by a sense of duty,

* The enclosure is that marked A.

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and I feel confident that it will be conceded, by all parties, that I had no other alternative left me than the course I pursued. I was compelled to act upon ex parte testimony, and could never have convinced the people of the United States that the vessel in question was not a pirate, had I not sent her in for adjudication; and, moreover, I have had the most satisfactory evidence that she was a vessel of that description; but such is the corrupt state of things in Havana that, for money, testimony may be procured to prove anything.

My counsel, General Taylor, is of opinion that to proceed against me was illegal; having acted under the spirit of my orders, it should have been an affair between the Spanish and American governments. I have also been informed by the counsel for the plaintiffs that the President of the United States, in a conversation with General Pegram, the marshal, stated that the government would be bound to sustain whatever damages might be awarded.

There is still about fifteen days to run of the time allowed for an appeal; I should, therefore, be pleased to know your decision within that period.

I have the honor to be, your obedient servant, J. WILKINSON.

Hon. Samuel L. Southard, Secretary of the Navy.

C.

Navy Department, November 22, 1827.

Sir:

I have received your letter of the 19th instant, upon the subject of damages, costs, and charges in the case of the schooner Ninfa Catalana .

It does not appear to me to be proper for this Department to give advice, or make any engagement which would create responsibility upon it, in your case. There is no discretion which it can legally exercise, nor any appropriation out of which it can pay any money for your relief. The appeal must be, as in other cases, to Congress. For success there it is probably indispensable that you should fully defend yourself before the judicial tribunals.

I am, respectfully, &c, SAMUEL L. SOUTHARD.

Master Commandant Jesse Wilkinson, United States Navy, Norfolk.