The evening herald. [volume] (Shenandoah, Pa.) 1891-1966, 1896-05-19

They Were Engaged in Lawful Enter
prise, ana That Had the Mates RcvoItcd .
They Would Have Been Mutineers.
WASHINGTON, May 19.-The case of the /
alleged flibustering members Of the /
steamer Horsa expedition, Messrs. Wiborg /
Petersen and Johansen, was submitted to /
the supreme court for its decision yester- |
day on printed briefs, without arguments. |
MIR. W. Hallett Phillips, the attorney for
the plaintiffs stated to the court that the
lateness of the session and the importance
of an early decision had impelled the ut
torney general to agree TO submit the case
on the printed briefs.
Mr. Phillips submitted to the court his
brief for the appellants, the governments
brief having been filed Saturday The prin-
cipal point on which the charterers of the
Horsa rest their case is that the expedition
was organized merely to carry munitions
of war to Cuba, and was not an expedition
to wage war. The latter construction, it
is held, would put an end to any traffic in
arms and ammunition, which has always
been considered lawful by this govern
ment.
! 1t is held that under any aspect of the
case there was no proof of knowledge on
the part of the plaintiffs that this was
military expedition, and that a refusal by
| the mates, Petersen and Johansen, to pro-
ceed on voyage would have been mutiny.
Secretary Fish is quoted to prove that
the so called neutrality act cannot apply
where there is no belligercncy, and it is
contended that this government was in n
| position to prescribe the duties and en-
force the rights Of a neutral only when it
has recognized that state Of public war
exists in Cuba. Until this is done there is
nothing to prevent Spain from fitting out
and sending a military expedition to Cubn
to put down the rebellion, provided there
is no violation of the law as to enlistment.
The brief continues:
"Under the present state of affairs it is
impracticable for Cubans who desire to
join their countrymen to take passage in
the regular lines They must then seek
other means of transportation, and it is
not unlawful for number of them to un-
dertake to cover the expense of transpor-
tation, or to go in n vessel carrying arms
to those whom they desire to join"
In reply to the judge comments that
secrecy was an Indication Of Il mutual un-
derstanding sufficient to prove the crime,
it is said that ''it is not expected that a
blockade runner shall advertise her depar-
ture."
incidentally the conduct of Judge But
ler who tried the case in the Pennsyl-
vania United States court, is criticized. The
! brief says in part 1.-The address of the
Judge was an undsguised attempt only
too successful, to influence the jury tc
find the defendants guilty by unwarranted
intimations and by expressions unsup-
ported by evidence"
1t is asserted that Judge Butler assumed
to decide the most important controverted
question of facts and left the jury nc
function except to register, in the form OF
a verdict, tha OF uys on of the judge, Many
decisions of the - lrtS are quoted by the
brief, particular stress being laid upon the
Virginius case. 1t further SAYS;
"If it is LEGAL for individuals to leave this
country for the purpose Of enlisting in {
foreign force it cannot be illegal to trans
port them. If it is lawful to ship arms anC
lawful to ship these Slen the mere fac
that they GO ON the same steamer cannO
= bring them within the purview Of thu
statute.
"The passengers on the Horsa were no
!, armed when they left this country, anC
) did not proceed to the scene of the insur
rection as an organized body, capable 0
r levying war. The statement of the judg
!, that they We're armed is finding of fac
. not warranted by any evidence, They lef
9 our soil without engagements to enter th'
service of belligerent. There was no mil
!; itary organization, no authority or subjec
{ ton"
The court reserved its decision. 1t is be
lieved that the case will be decided withil
two or three days.