The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-11-03
TEE CUBAN PRsyATEER HORNET.

The Case DISQUALIFICATION of the United
States Commissioner.
The following Is tho decision In full Of Commits
soner Rutherford the case of the Cuban privateer
Hornet or Cuba, recently tried at Wilmington,
N. Co.
The United States rs. The O0cers Of the Steamship
Cubd.-In this case the defendants twenty -four in
Of Sea as OF Wn 81 n 1ns
known as the Neutrality law the charge being 'that
they did fit out and arm, and did procure to be fitted
and armed within the limits OF the United States,
q certain ship or vesse, called the Cuba, with intent
that the said vessel shall be employed in the service
OF the people OF CnOa to cruise and commit hostlli-
ties against the people OF Spain O country with
which the United States is at peace.n
have carefully reviewed the testimony given on
the examination and considered the arguments OF
couse as we'll as the cases cited in support Of their
positions, and am Of the opinion that put two acts
are shown to have been committed within the limits
OF the United States from which an intent to violate
the neutrality laws can DO Inferred These were
Jr by ID. ID. Munro one or the defendants; and with
this act no one but the defendant Munro is shown
on cargo Of Coal from the s ames
Predmore. The testimony OF all the witnesses unite
III showing that this coal was taken on board the
Cuba While she was lying In Long Island Sound, in
side Montauk Point, ana therefore clearly within the
limits OF the United States, even though she was
more than three miles from the shore.
From oil the evidence as to the position Of the
Cuba at the time she received the arms, stores and
men from the Petre the Charter Oak, the Only Son,
the Martha washington ana the Virginia Seymour,
l believe that she was more than marine league
from land and without the jurisdiction OF the United
States.
The evidence, as well OF the prosecution as OF the
defence, shows that some OF the defendants were
passage at foreign port and that others had joined
her on the high seas; that these persons had exer
cised no command and had no control over the YES
sci or Its crew until after the arms mad been put
board and the coal Shipped and not until the CUBA
was on the high seas and beyond the limits and
Jurisdiction OF the United States.
III Is claimed by the defence that as no proof has
been offered by the prosecution that the United
states is at peace with Spain, this beng as they
them, that the Commissioner cannot take judicial
noice OF the TACT, and that the prosecution having
failed to prove IL fact, tile whole charge falls to
the ground. With this view OF the case / cannot
agree; the public acts, treaties, &C., made by the
noticed by the courts O the United States ana 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 defence upon the duties or a Com.
cution taking the ground that 1t was tho pro-
vince OF the Commissioner merely to inquire into
been committed, and III this TACT appeared, 1t was
then his duty to hold for trial any person persons
committed the offence. what may be ..probable
cause must Of course rest entirely In the dscreuon
OF the Commissioner under the different circum.
not be justified IN committing citizen for trial, and
subjecting him to the great annoyance and expense
creates only suspicion against the accused, and
where II Is evident that jury would not convict
The defendants, Edward Higgins, Thomas l.. Dor.
min. G. W. Reed, f. J. McNuy, E. Valiente T. Ingra-
ham. g. w. DuBose, X. Somers, H. s. Cooke, A. NJ.
Mason, Antonio iunoz WIN. II. Robinson, Stephen
kearney,. Joaquin Aguiar, Edward Toulas, John
Mulay, W.. J. Flatherty, are discharged. inc de.
fsndants David A. Telfair, ID. D. Munro, Nicholas
Esl'ng, r. H.. Gibson, W. u. Phillips, Louis
French and John Lynch, Will be required
to give good and suficient bail In the
sum of $500 each for their appearance at the next
OF the District Court OF the United States for
the Cape Fear district OF North Carolina to be held
In the United States Court room, In the city OF Will
mington, Monday. the LIST day OF November, 1869,
to answer any indictment that may be found against
them and in default OF nndiGg bail aforesaid that
the said DAVID A. Telfar, ID. ID. Munro, Nicholas
EsiEg, Il. IL. Gibson, w. d. Phillips, Louis French
and John Lynch stand committed for trial.
ALLAN RUTHERFORD,
United States Commissioner for the Cape Fear
district Of North Carolina.
The Commissioner stated orally after reading the
above decision that 1t had also to lis knowledge
that the offence had been committed In the Eastern
district OF New York.