Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-10-15


before Commissioner Rutherford yesterday. Al
II O'Clock the Court was called to order. Hon
George Davis Introduced to the Cour: Mr.. Ores
venor p. Lowery, of New York. who vas associa-
ted with Judge Meares and himself in the de.
Tense.
Dir. Lowery, 10 behalf OF Commodore Higgins
read tho following Protest and asked that it be
filed among the papers in the CASE
PROTEST.
I. Edward Higgins, a CT zen of tho Republic
OF Cuba, duly commissioned and acting as Com.
modore in the Navy thereof, now being in COM
nland of the public ship OF of the said Repub-
lie called the Cuba" which ship is lying in the
port of Wilmington, in the State of North Caro-.
lima, in the United States of America and being
cited before Allen Rutherford, Esquire and Com.
missioner of the Circuit Court of the United
States Of America, and Magistrate for the dis
trict in which said ship lies, to answer for a
pretended violation of the laws Of the United
States Of America, and to show cause why my
said ship should not be detained aud Ibeled for
condemnation: Do hereby in the and for
the honor of the said Republic CT Cuba soemnly
protest against the said Allen Rutherford ana all
persons and States
| l. That the said ship is all ayowed public ship
of war belonging to the Republic of Cuba
2. That am as q 'oresaid, commissioned OF
ficer of the Navy Of the said Republic Of Cuba,
and am and at the time next hereinafter
mentioned in command of the said vessel
3. That on the second of Octoher, being at sea
ana neEr Gn6 COAST OF the united States. my ship
experienced very heavy weather, and becoming
very short of coal. was by stress thereof, COM
PEELED to seek shelter and coal within the nearest
harb2r, being the mouth Of the Cape Fear river.
4 That while in said harbor waiting for coal,
war; ant was issued By the eaid United States
Commissioner, commanding tho arrest and de-
tentiOn of said ship, which warrant remains in
full force and effect.
5. That upon the return of the said warrant, l
did at once by my counsel protest, and do now
protest, that the said ship is by the law and usa
OF nations exempt from all arrest, detention or
interference by civil criminal courts, and that
for offences against municipal aws or foreign
countries, she ls answerable only to her own
country, from which redress is due to the Offend
ed alton, if any offence has been committed.
And now, having for the dignity and honor of
the Republic OF Cuba made this protest against
the exercise Of a jurisdiction over public ships
unknown among nations and being willing and
deslrous to have the truth known 10 all persons,
and particularly to the citizens of the United
States, do declare that it is untrue that the
said vessel has il any other preparations offended
the Neutrality Laws of the United States OF
America, in the manner charged or in any other
manner; and aver that the said vessel is now
in the same condition in every respect as When
she was purchased from the Government Of the
United States, in the month Of june 1869. except
a few immaterial alterations not relating to her
character or use war vessel; and except,
further, that since the said purchase, and while
out of the limits and Jurisdiction of tho On tied
States, and more than twenty days after her de-
parture therefrOm, and after she had entered a
British port, and had been there seized by the
public authorities, examined and discharged. and
had cleared therefrom then, and not until then,
had she been sold and delivered TO the Republic
OF Cuba, and was fitted out and armed upon the
high eeas and beyond the jurisdiction of the
United States, and OF all other nations.
That all the proceedings aforesaid, SO far from
being in disregard Of the rights and dignity OF
the United States, conducted in q careful
and true respect therefor, and under the sane
ton OF we'll established principles OF public law.
EDWARD HIGGINS,
Commodore Cuban Navy,
Commanding Steamer Cuba.
nth October 1869
Mr.. Lowery also made protert OF the Commits
sion of Commodore Higgins under the seal OF
the Republic of Cuba and signed by General Ces-
pedes, President, under date Of February 23d
1859 ; also the order 20 Commoore Higgins to
take command of The steamer ttt,u. (Iho Com.
mission and order We're in Hpanieh. Translated
copies to be fled
Hon. s. j. Person. i'll behalf of tho Govern
ment, said that by these papers being tilei the
issue between the Goverrm and the steamer
was made up. 1t was alleged upon the part Of
the Government that thi, vessel had violated
the Neutrality laws; that sie was fitted up if not
armed, i'll port Of The United States for the pur-
pose ofmakipg war upon government at peace
with tho United States. When the case was first
heard he had asked for timo to procure witness
ses IN behalf OF tho Government. The counsel
fer the defense had opposed his application for
ten days. The Court granted until o-day. It
was soon manifest that the attendance of wit
nesees cou & net be procured in time and he
asked that further time until Saturday next be
granite !. This was longer than the original time
asked for, but the efforts to procure witnesses
| hsd been delayed by the fact that it was impos-
Stole to get them hero to-day. He thought that
the Go yernment wOnld be ready in any event on
Saturday. He was indisposed to ask for any un-
necessary delay, but it had been impossible to
procure the attendance of Witnesses sooner. It
was the intention of the Government to have the
witnesses here soon as possible.
Hon. George Davis replied in substance that
the Commissioner would bear him out in the re-
collection that what had been done in filing the
protest was but repetition of what had been
done in solemn form at the first hearing. Coun-
sci then took occasion to protest against the
action of the Government; had stated thu char
acter of the ship, the official position of its com
mander. AS the officers Of the Government
knew of the Importance of this case it was reaeon-
able to suppose they would make all possible
haste in preparation. All the defense aeked Was
a full, fair and speedy invostig alton of the
matter. Ceiay would have the effect Of condsm-
tanned in a neutral port while the vessels Of the
other were in thu uninterrupted service of their
| country.
He would not Of course intimate that the Uni
ted States by this investigation and delay de.
sired to favor Spain. 1t was contrary to Tue char
acter and dignity of the government it WAS i'll
opposition to the known neutrality and spirit OF
| fairness always exercised by the United States
towards contending foreign nations. But the ef.
feet Of such long delays was the Same. He there
! fore protested against much time being grant
ed. 1t would be wrong. The witnesses who had
been held back by their inability to be hero to-
day, could certainly reach the city liz two days
and he did not think counsel should ask for long.
/ or delay.
! Judge Person replied that the postponenient
asked was very short He only desired reasona-
/ bic time, and had no disposition to urge unne.
cessary delay. In importsn cases it was not on
~ necessary to give the witnesses ample tirae to
arrive, but the opportunity also to tava iner-
view with counsel. In cases o: Importance, where
the question OF guilt rested upon tho intention OF
parties, it las necessary to enter into partcu-