Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-11-05

Here the counsel bestowed upon the sharp
New York detectives, who appeared so ca
ger in the prosecution here, some very cut
ting blows The ship is not on trial-the
ship may be guilty in law and every officer
and man on her innocent-she NAV be
condemned in libel case if facts appear
as charged, and then every man on trial
be positively innocent. Have any of these
officers been guilty of fitting out this ves
sci for hostile purposes ? With the Gov
ernment rests the affirmative, and it must
make out its case--there must be proof
positive on every one of the points charged
Lit does not appear to the Court judicially
that the Government is at peace with
Spain-the case must be made ont in this
respeot-it is material part that this fact
shall be attested by the proper State docu-
ment presented in Court. Gordon's testi-
mony doesn't show that the officers of this
ship had armed and fitted it ont or had
anything to do with it. This proposition
covers the case Whether or not one or
more of these parties on trial were con-
cerned in fitting out the ship. If the ves-
sci was outside of a marine league from
the shore, then nobody is guilty If inside,
it must be shown which one of the officers
assisted in fitting out. As to the jurisdic-
Here quoted from Kent's Commentaries
regarding the doctrine of Jurisdiction of a
country over contiguous seas. The gen
eral impression is against it; and the gen
eral view by authorities is that the iuris-
diction of a country extends no farther in.
TO the sea than cannon shot, that is, ma
rine league, and the Congress of the Uni
ted States have recognized this limit.
Judge Meares here closed his remarks by
asserting again that the ship might be
guilty without one of the officers or men.
If others from the shore fitted out the ship,
they were not here to day. The officers
here were mere lookers-on, and assumed
no authority till the Cuban flag was
raised.
Mr.. Davis in opening his argument
said that it was misfortune that
this cause should have been pre-
judged. The ship now lies in sight
of this Court room dismantled, her crew
disbanded, the vessel seized and as much
lost to the cause of Cuba to day as if al
ready condemned. Without intending to
reflect upon the action of the Government,
he would ask, is it necessary for it's honor
that its action should go farther, or that
these honorable gentlemen here should be
arraigned under criminal prosecution
In defining the duty of the Com
missioner the Government counsel
had laid great stress upon the
question of probable cause and reason
bic suspicion, but this question of proba-
ble cause does not present anything def
nite-the question is, does the justice of
the Government, upon the evidence, actu-
ally require that these men shall be bound
over? Under the neutrality act of 1918, it
is no offense to arm and fit out vessel in
the United States. The offepse consist in
the intent to commit hostilities against a
nation at peace with the United States
Unless that fact is established, no offense
is proven. In what portion of the evidence
is it shown that it was at peace with Sp ain
or any other nation? On the first exanlina-
tion it was contended by Government coun-
sci that the ship was not public ship, as
Cuba's belligerent rights not being re-
cognized by the United States, it
recognized no war between Spain and Gu
ba. Applying this to the defense the ship
could not be fitted out for war against
Spain, when the Court had no judicial
knowledge that there was a war with
Spain The prosecution has failed to es-
tablish it in proof and facts OF history
must be proven as any other questions OF
facts. The intent to wage war with nation
with whom we are at peace. is the very life
of an offense-take away that and no Of
fense exists. As to the question of juris
diction over the sea it has not been shown
that the fitting out occurred within the ju-
risdiction of the United States. The ju
risdiction over contiguous waters was .ex-
tended to within marine league of the
shore for the protection of the revenue in
terests, and it is in absurdity to suppose
that the territorial limits of the United
States cover the great extent on water al
claimed by counsel. 1t was assumed thai
the Court must exclude from consideration
all the testimony of Gordon, and this as
sumption the counsel proceeded to sub
stantiate. Gordon was an accomp6ce, an
accomplice who became such with the
avowed purpose of betraying his comrades
for money. He has exhibited himself uu
trustworthy and had contradicted himself
and been contradicted. A sharp and
scathing review of Gordon's testimony
was here made. But the question is not
whether the ship was fitted ont, but wheth
er the defendents were concerned in fit
ting her ont. Commodore Higgins anc
officers, so far rs the Court knows, never
heard of the expedition of the vessel i'll
she arrived at Halifax. Did any of these
officers fit out the vessel within the juris.
diction of the United States? They had
even taken the precauiion to go out OF the