who adds that, in his opinion, she had no right as against the United States, to carry the American flag, because she had not been registered according to law. He adds, "Spain, no doubt, has a right to capture a vessel with an American register, and carrying the American flag, found in her own waters, assisting or endeavoring to assist the insurrection in Cuba; but she has no right to capture such a vessel on the high seas, upon an apprehension that, in violation of the neutrality or navigation laws of the United States, she was on her way to assist said rebellion." The reasoning and opinion of the Attorney-general are examined by Mr. R. H. Dana, the editor of "Wheaton," in a Boston journal, of January 6, 1874. In brief, he takes the unassailable position that actual ownership by a person belonging to a state, places a ship on the high seas under the jurisdiction of that state. The Virginius, owned really by Spaniards, was really under Spanish jurisdiction; and “the register of a foreign nation is not, and by the law of nations is not recognized as being, a national voucher and guaranty of national character to all the world." "Nations having cause to arrest a vessel, would go behind such a document to ascertain the jurisdictional fact which gives character to the document, and not the document to the fact." "Even a gen uine passport, which is an assertion of national character, is not conclusive between nations on a question of right to arrest." And if the Attorney-general thinks that Spain has no jurisdiction to inquire into violations of our laws, that the question, whether or not the register was fraudulently obtained, was a matter of our law and for our decision, it may be replied that, granting this to be true, the fact does not touch the question of jurisdiction, which depends on ownership. All that can fairly be said is, that while the nation of the owners has a right to arrest, the ostensible ownership appearing on the register fraudulently obtained, would suggest delay and sequestration of the vessel until the facts could be established. We add that the flag is no protection without a right to use it, and that every nation for purposes of juris diction over vessels of its subjects at sea, as well as for other reasons has a right to decide by its ships of war whether its own vessels are not wearing a foreign flag. But the Spanish captain who took the Virginius supposed it to be a veritable American vessel, making an attempt to land men and instruments of war, in order to assist the insurrection in Cuba. What was his duty in the premises? It was to defend the coasts of Cuba, to the best of his ability, against a vessel which was known to be under the control of the insurgents, for which he had been on the lookout, and against which the only effectual security was capture on the high seas. Of course such self-defense on the part of Spain involved a risk, like that which was involved in the case of the Caroline, where, as was mentioned in the text, Mr. Webster admitted that self-defense was in extreme cases justifiable, although it might lie beyond the ordinary course of international law. The writer of this work defended the proceedings of the Spanish vessel on this ground in some remarks made at the time, which were widely circulated in the newspapers. Some time afterwards an eminent lawyer, Mr. George T. Curtis, examined the subject at large in "The Case of the Virginius, considered with Reference to the Law of Self-defense," and justifies the capture on the same ground. We quote a few words: "We rest the seizure of this vessel on the great right of self-defense, which, springing from the law of nature, is as thoroughly incorporated into the law of nations as any right can be. No state of belligerency is needful to bring the right of self-defense into operation. It existed at all times-in peace as well as in war. The only questions that can arise about it relate to the modes and places of its exercise. In regard to these we have only to say that there is no greater inconvenience to be suffered by admitting that this right may be exercised on the ocean, than is constantly suffered by neutrals from an exercise of the belligerent rights of nations at war. In fact the inconvenience is not nearly so great." The documents may be found in Executive Document No. 30, Forty-third Congress, first session, accompanying a message of the President. The following rules of international law are illustrated by the case of the Virginius: 1. That the right of self-defense authorizes a nation to visit and capture a vessel as well on the high seas as in its own waters, when there is reasonable ground to believe it to be engaged in a hostile expedition against the territory of such nation. 2. That a nation's right of jurisdiction on the high seas over vessels owned by its citizens or subjects, authorizes the detention and capture of a vessel found on the high seas, which upon reasonable ground is believed to be owned by its citizens or subjects, and to be engaged in violating its laws. The flag or register of another nation, if not properly belonging to a vessel, does not render its detention unlawful by the cruiser of a nation to which its owners belong. As, however, the register affords primâ facie evidence of nationality, the nation which gave the register by mistake must be treated with great care, detention on grounds proved to be erroneous must be atoned for, and the question of ownership would naturally be committed, where the evidence is not patent, to a third party. § 215. foreign vessels suspect ed of being slavers un authorized, As the slave-trade has not hitherto become piracy by the law of nations, but only by the municipal and conven- Search of tional law of certain nations (§ 146), no state can authorize its cruisers to detain and visit vessels of other states on suspicion of their being concerned in this traffic, because the right of detention and visit is a right of self-defense. Every state may, to carry out its laws and the laws of humanity, detain and search its own vessels in peace also, but if, in so doing, mistakes are committed, the commander of the searching vessel is responsible, and damages may be demanded. § 216. Such right, however, of reciprocal detention and visitation upon suspicion of being engaged in the slave-trade has been conceded by a considerable number of treaties between the ties between nations of Europe, as England in 1817. principal powers of Europe. Previous to the downfall of Bonabut conced- parte there had been a falling off in the traffic in ed by trea- slaves; for Great Britain had not only prohibited most of the her own citizens from the traffic, but prevented also her enemies from engaging in it by her command of the seas; it had, moreover, long been forbidden under heavy penalties by the United States; and there were then on this side of the water few motives for engaging in so dangerous an employment. At the peace, although the sentiment of Europe was expressed against the slave-trade, the nations most interested in resuming it, France, Spain, and Portugal, refused to give it up at once, alleging that their colonies needed to be replenished with slave-laborers, while those of England were fully stocked. The first concession of the right of search is to be found in the treaty between Portugal and and Portugal England made July 28, 1817,- which, however, related only to the trade north of the equator; for the slave-trade of Portugal within the regions of Western Africa, to the south of the equator, continued long after this to be carried on with great vigor. By this treaty, ships of war of each of the nations might visit merchant vessels of both, if suspected of having slaves on board, acquired by illicit traffic. By the treaty of Madrid, of the same year, Great Britain obtained from Spain, for the sum of four hundred thousand pounds, the immediate abolition of the trade north of the equator, its entire abolition after 1820, and the concession of the same mutual right of search which the treaty with Portugal had just established. The precedent was followed by a treaty of Great Britain with the Netherlands, in 1818, which also contemplated the establishment of a mixed commission to decide upon the cases of vesties in 1818, sels seized on suspicion of slave-trading. Stipulations somewhat similar were made between Sweden and Great Britain in 1824. Treaty of Madrid, 1817. Other trea 1824. In 1831 and 1833, conventions between France and Great Britain included one more power in arrangements for mutual search. But the right of search was only admissible on the Conventions in 1881,1833, France and between Great Brit western coast of Africa from Cape Verde (15° north lat.) to the tenth degree of south latitude, and to the thirteenth degree of west longitude from the meridian of Paris, and also around Madagascar, Cuba, and Porto Rico, as well as on the coast of Brazil to the distance ain. into the sea of twenty leagues. It was agreed, however, that suspected vessels, escaping beyond this range of twenty leagues, might be detained and visited if kept in sight. As to steps subsequent to capture, no mixed commission was allowed, but the captured vessel was to be tried in the country to whose jurisdiction it belonged, and by its courts. Quintuple 1841. By the quintuple treaty of December 20, 1841, to which Great Britain, Austria, Prussia, Russia, and France, were parties, all these powers, excepting the latter, treaty of conceded to one another the mutual right of search within very wide zones of ocean between Africa and America, and on the eastern side of Africa across the Indian Ocean. France, however, owing to popular clamor, and the dislike entertained by almost the entire chamber of deputies toward the right of search, withheld her ratification and adhered to her arrangements of 1831 and 1833, above spoken of, until the year 1845. In that year she withdrew her consent to the muas the terms of the - France, in 1915, withconsent to draws her a right of tual right of search altogether, conventions allowed her to do, but stipulated to cooperate with Great Britain in suppressing the slave-trade by sending a squadron to the coast of Af- search. rica. Each power engaged at first to keep twenty-six vessels on the coast for this service, but the number on the part of France was afterwards to be reduced to one half. This is believed to be the existing arrangement. § 217. of the The Treaty of Ghent, which terminated the war between the United States and Great Britain on the 24th Obligations of December, 1814, contains the following article: "Whereas the traffic in slaves is irreconcilable with the principles of humanity and justice; and whereas United States in re gard to the slave-trade |