Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-11-05
DECISION
THE UNITED STATES !
The Officers of the 8. s.


THE UNITED STATES
Us.
The Officers of the 8. s.
Cuba.
In this case, the Defendants, twenty-four in
number. are charged with q violation Of the
Sd section OF the act of Congress OF April 2Jth,
1918, known as the Neutrality Law, the charge
being "that they did fit out and arm, and did
procure to be fitted out and armed within the
limits of the United States, certain ship ves-
sci, called the CUBA with intent that the said
vessel shall be employed in the service of the
people of Cuba to cruise and commit hostilities
against the people of Spain, a country with
which the United States is at peace"
have carefully reviewed the testimony given
on the examination, and considered the argu-
noents of counsel as well as the cases cited in
support OF their positions, and am OF the opinion
that but two acts shown to have been COM
mitted within the limits CT the United States
from which an intent to violate the Neutrality
Laws can be inferred. These were First, the
enlistment of the witness James Gordon, Jr.,
by D. D. Munro one OF the defendants and
with this act no one but the defendant Munro is
shown to have been connected. Second, the act
of taking on board q cargo OF coal from the
schooner "James Predmore." The testimony of
was taken on board the ''Cuba - while she WAS
lying in Long Island Sound, inside Montauk
Point and therefore clearly within the limits of
the United States, even though she WAS more
than three miles from the shore.
From all the evidence as to the position of the
SCUBA" at the time she received the arms, stores
and men from the "Petrel," the s. hsrter Oak, >
the ''Only Son. the ''Martha Washington and
the "Virginis Seymour" believe that she was
more than marine league from land, and with
out the jurisdiction of the United States.
The evidence, as we'll of the prosecution as of
the defense shows that some of the defendants
were merely passengers bn the vessel, who mad
taken passage at a foreign port, and that others
had joined her on the high seas; that these per-
sons had exercised no command and had no con-
troll over the vessel or it's crew until after the
arms had been put on board and the coal shipped,
and not until the Scuba" was Oh the high seas
and beyond the limits and Jurisdiction or the
United States.
It is claimed by the defense that as no proof
has been offered by the prosecution that the Uni
ted States is at peace with Spain, this being, sa
| against them, that the Commissioner canoot take
judicial notice Of the fact, and that the prosecu
| tion having failed to prove it as q fact, the
| whole charge falls to the ground. With this
view OF the case, / cannot agree: the Public Acts
| Treaties. etc., made by the United States with
| foreign countries are judicially noticed by the
| Courts OF the United States, and the fact that
| peace exists between the United States and Spain
is public matter affecting the whole people and
need not be proved
Much has been said by both the prosecution
| and the defense upon the duties OF Commits.
sioner as committing magistrate, the prosecu
| tion taking the ground that it was the province
of the Commissioner merely to inquire into thu
matter and ascertain il the Offense charged had
been committed, and if this fact appeared, it wai
then his duty to hold for trial any person per
sons whom there was probable cause" " TO believe
| had committed the offense. What may be "prC
| bable cause must of course rest entirely in The
| discretion of the Commissioner under the differ
! ent circumstances in each case; but in my opin-
| ion he would not be justified in committing cit
izen for trial and subiecting him to the great
i noyance and expense attending such proceedings
| onfslight evidence which creates only suspicion
| against the accused, and where it is evident that
| jury would not convict.
| The defendants, Edward Higgins, Thomas i
| Dornin, G.. W. Reed, r. j. McNulty, e. Valiente
P. Ingrahsm, G.. W. DuBose, r. Somers, b. 8
Cooke, A. M. Mason, Antonio Munoz, VIM. H
Robinson. stephen Kearney, JOAQUIN Aguiar
Edward Toulas, John Mullay, W. J. Flaherty, ar
discharged. The defendants, David A. Telfar
D. D. Munro, Nicholas Esling, r. 81. Gibson, W
D. Phillips, Louis French, and Jno. Lynch, will
be required to give good and sufficient bail in tn
sum Of Five Hundred Dollars each for their ap
pearance at the next term of the District Cour
of the United States for the ape Fear Distrc
of North Carolina, to be held in the Unite
States Court Room in the city OF Wilmington ol
Monday the LIST day of November, 1862 to answe
any indictment that may be found against the IN
and in default of finding bail az aforesaid, tina
| the said David A. Telfair, D. d. Munro, Nichola
Esling, r. Fl. Gibson, v. +. Phillips, Loui
French and John Lynch stand committed fo
tria'.
| ALLAN RUTHEKFORD,
| United States Commissioner
| for tHe Cape Fear District