Mr. Gresham to Mr. Muruaga.

No. 10.]

Sir: Referring to Department’s note of the 21st and in acknowledgment of your legation’s notes of the 11th, 15th, and 20th instant, all relating to the apprehended shipment of arms from Philadelphia to Cuba, I have the honor to inclose for your information copy of the report made by the United States district attorney at Philadelphia, pointing out that the evidence submitted was insufficient to sustain action.

The Attorney-General regards the course taken by the district attorney so far as unexceptionable.

Accept, etc.,

W. Q. Gresham.
[Page 1192]
[Inclosure in No. 10.]

District Attorney at Philadelphia to the Attorney-General.

Sir: Referring to your telegram of the 16th instant, requesting a full report upon the refusal of this office to institute legal proceedings against certain arms and ammunition in the Pennsylvania Railroad Company’s warehouses in this city, alleged to he intended for the use of the Cuban insurgents, I haye the honor to report as follows:

On Friday, the 18th instant, Señor José Congosto, Spanish consul, called at this office and made the statement that 127 cases of arms were stored in the warehouse of the Pennsylvania Railroad Company at this city; that said arms were consigned to one Rubens from Fernandina, Fla., and were a part of the cargo intended to be shipped from Florida on the vessels Amadis, Baracoa, and Lagonda; that said arms were now intended to be shipped on another vessel, name and port of departure unknown, for the use of the Cuban insurgents.

On this statement of facts, in my absence from the office one of my assistants, Mr. Ralston, advised the Spanish consul that no proceedings could be taken under section 5283, Revised Statutes.

On receipt of your telegram on Saturday I requested Señor Congosto to call this morning and lay the case before me. This he has done, and the following additional particulars have been stated:

Señor Congosto says that there are in the United States clubs or organizations composed of citizens of the United States of Cuban origin, or of exiled Cubans, which are engaged in raising money, purchasing arms and munitions of war, raising volunteer soldiers, and equipping said troops for service against the Spanish Government and in aid of the Cuban insurgents. He believes that the arms before spoken of are a part of the equipment owned by said clubs or insurgent organizations, and that they are intended to be put on a vessel (not known) to be sent to Cuba.

I have advised the Spanish consul as follows:

I do not think a case has been made out under section 5283, because he is not able to establish the fact that said arms, etc., are intended to arm and equip or augment the equipment of any vessel to be employed against the Spanish Government. The decision of the circuit court of appeals for the ninth circuit in the Itata case would seem clearly to cover the one presented, the arms, etc., being intended not to fit out an armed vessel, but to be shipped as merchandise.
If information can be furnished which shows that there is a military expedition or enterprise being set on foot in this district by any person or persons, I will, on being furnished such definite information, cause warrants to be issued for their arrest under section 5286, and if proof can be furnished that the arms now in this city, in the Pennsylvania Railroad Company’s warehouse, are a part of the equipment of such military expedition or enterprise, I will cause proceedings for forfeiture to issue against such arms.
I advised the Spanish consul, in addition to the above, that I did not care to take the responsibility of issuing process under section 5283 in the light of the decision of the court in the Itata case without your authority; that as the case stood my judgment was that such proceedings would not be warranted by the law; that I would submit the matter to you and ask you for telegraphic instructions. I further said to him that I would not hesitate to issue process under section 5286 if he brought me definite and specific information this afternoon, but that I did not care to issue the same merely on suspicion.

Señor Congosto agreed with me in thinking this the proper course for me to pursue, and has left the office to ascertain what proof he can submit under section 5286.

I have, etc.,

Ellery P. Ingham,
United States Attorney.