NOTE 29.

The Virginius,' carrying the flag of the United States, and supposed for some time to be a regularly registered vessel of the United States, was captured by a Spanish war steamer on the high sea, while endeavouring to reach the neutral waters of the island of Jamaica, having been foiled in the attempt to land a party of insurrectionists on the Cuban coast. The capture occurred in the night of October 31, 1873, but the bulletin officially announcing it was not published at Havana until November 5. A court was assembled for the trial of the persons taken on the vessel, 155 in number, of whom four were executed on November 4, thirty-seven on the 7th, and sixteen on the 8th, and the remainder, 102 in number, were delivered on board a United States steamer December 18. There were nine executed who belonged to the United States, and a larger number of British subjects. The summary and informal process, the cruel execution of persons belonging to the crew, even of mariners and cabin-boys, met with the just indignation of the world; but in addition to this, unless the 'Virginius' can be shown to be a piratical vessel, the mode of trial was a violation of Article VII. of the treaty of 1795, which secures a regular trial, the use of solicitors, agents, &c., and their free access to the subjects or citizens of the one party for offences committed within the jurisdiction of the other.

The government of the United States, supposing that our rights on the sea had been violated, as well as that persons illegally captured had been executed cruelly and against treaty, demanded reparation. As the result of negotiations, on November 29 Spain stipulated to restore the 'Virginius' and the survivors, and to salute the flag of the United States on December 25 following. If, however, before that date Spain should satisfactorily prove that the 'Virginius' was not entitled to carry the flag of the United States, the salute should be dispensed with, and only a disclaimer of intent of indignity to the flag should be required. Furthermore, the United States engaged on the same condition to adopt legal proceedings, &c., against the vessel, and the persons who might have violated the laws in relation to the vessel.

It was afterwards proved that the 'Virginius' was not legally a vessel of the United States. The real owners from the first were Spaniards. The oath of the American in whose name she was registered was false. So says the Attorney-General in a letter to the Secretary of State, dated December 17, 1873, 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 endeavouring 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 recognised 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 genuine 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 jurisdiction over vessels of its subjects at sea, as well as for other reasonss-has a right to decide by its ships of war whether its own vessels are not wearing a foreign flag.

Of

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 look-out, and against which the only effectual security was capture on the high seas. course, such self-defence 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-defence was in extreme cases Justifiable, although it might lie beyond the ordinary course of international law. The writer of this note defended the proceedings of the Spanish vessel on this ground in some remarks made to the Yale law students in November, 1873, which were widely circulated in the newspapers. Quite recently an eminent lawyer, Mr. George T. Curtis, has examined the case at large in 'the case of the "Virginius," considered with reference to the law of self-defence,' 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-defence, 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-defence into operation. It exists 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 Exec. Doc. No. 30, 43rd Congress, 1st 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-defence authorises 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, authorises 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 prima 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.

INDEX.

ABERDEEN, Earl of, on the right of search, § 200.

Adams, J. Q., on the Monroe doctrine, § 47; negotiations on suppressing the slave
trade, § 198.

Admiralty, English, its doctrine on notice of blockade, § 187.
Agents of intercourse, § 87, et seq. See Ambassadors, Consuls.
Aix-la-Chapelle. See Congress.

Albericus Gentilis, app. i. § 92 e.

Alexander VI., Pope, his grant to Spain, § 53.

Aliens to be protected, § 61; their right of asylum, ibid.; of innocent passage,
ibid.; their relation to the laws, § 62; increase of humane feeling toward them
illustrated, § 63; may lose the character of aliens, § 66. (See Naturalisation.)
Suits against, in foreign courts, § 76; how far they may sue in foreign courts,
ibid.; in a country at war with their own, § 118; their property there, ibid.
Alliance, triple, app. ii., 1668; grand, ibid., 1701. See Peace of Utrecht, triple,
ibid., 1717; quadruple, ibid., 1718; holy, ibid., 1815, § 46. See also Treaty.
Alternat, § 94.

Amalfi, sea laws of, p. 16.

;

Ambassador, general term, § 87; also indicates one kind of agent, ibid., and § 94
kinds of, §87; derivation of the term, ibid.; origin of the privileges of, § 88;
temporary and resident, § 89; importance of the latter, ibid.; obligation to re-
ceive, considered, § 90; what ambassadors may a nation refuse to receive, ibid. ;
who has the right of sending, § 91; deputies from protected states and towns,
not a, ibid.; a subject representing a foreign state as a, ibid.; female a, ibid.,
note. Pope's nuncios nominated in some Catholic states, ibid.; may represent
several courts, or one court in several states, ibid., end; credentials of, § 91;
and privileges of, § 92 a, et seq.; inviolability and exterritoriality of, ibid. (see
those words for his special powers); houses provided for, § 92 b, note; limits of
privileges of, § 92 e; history of treatment of, esp. in England before Queen
Anne's reign, ibid.; relations to third powers, § 93; rank of, § 94; recall of,
ibid.; formalities and occasions of recall, ibid.; full power of ambassadors, its
import, § 107; ambassadors cannot sit as judge of captures, § 141; case of the
British ambassador in the United States in 1856, § 166.

'Amistad,' case of the, § 138.

Amnesty implied in peace, § 153.

Armed neutrality, § 155; first in 1780, app. ii., § 174; second in 1800, app. ii.,
§ 191.

Armistice. See Truce.
Athens. See Greece.

Aubaine, droit de, § 63.

Austria acquires the Spanish Netherlands by treaty of Rastadt, app. ii., 1714; also,
Naples, Milan, Sardinia, ibid.; exchanges Sardinia for Sicily with Savoy, ibid.,
1718; pragmatic sanction, ibid., 1735; acquisitions by peace of Passarowitz,
ibid., 1721; acquisitions in Poland, ibid., 1772, 1773; cedes Netherlands to
France, ibid., 1797; humiliation in 1805, 1809, ibid.; naturalisation in, § 66; pro-
ceedings in Koszta's case, § 81; in Mr. Hülsemann's case, § 83.
Ayala Balthazar, app. i.

Azuni, D. A., app. i.

B B

BALANCE of power: meaning of the phrase, § 43; Europe a loose confederation,
ibid.; interference for the balance of power known to the Greeks, § 44; to me-
diæval Europe, ibid.; applied against the house of Hapsburg, ibid.; against
Louis XIV., ibid.; since, ibid.

Bannus, bannum, § 178.

Barbary powers form states, § 36; and are not pirates, § 137.

Belgium, its union with Holland, app. ii., 1814; disruption, § 49; interference of
great powers in the dispute, ibid.; is made neutral territory, ibid., and § 155.
Belleisle, Marshall, case of, § 93.

Bentham, J., §§ 9, 206.

Berlin decree, § 189.

Bernard (Mountague), on the rules of war, § 127, et seq., passim.

Black Sea, the, free to commerce only, § 57; history of negotiations concerning,
ibid.

Blackstone cited, § 29; Stewart's note on, § 141.

Blockade, §§ 186-189; what? § 186; what places are subject to, ibid.; why a
breach of unlawful, ibid.; what is a valid, ibid.; blockading force often settled
by conventional law, ibid.; paper or cabinet blockades unlawful, ibid.; evidence
of, § 187; what is due notice of, ibid.; treaty stipulations concerning, ibid.;
must be made known to neutral governments, ibid.; difference of practice as to
notice, ibid.; notice to vessels from a distance, ibid.; discontinuance of, ibid.;
penalty for breach of, § 188; duration of liability to penalty, ibid.; attempts to
stretch blockade, § 189; history of, ibid.

Brandschatz (German), § 133, note.

Bundesstaat and Staatenbund (German), § 104.

Bynkershoek, Cornelius van, §§ 54, 85, 86, 89, 91, 92 a, 92 b, 92 d, bis, 92 e,
93, 96, 107, 118, 127, 137, 140, 143, note, bis, 145, 146, 156, 176, 181, 183.
App. i.

CESAR'S Gallic war, § 87.

Calhoun, J. C., on the Monroe doctrine, § 47.

Capacity, personal, determined by the law of the domicil, § 70 et seq.

Capture, 139, et seq.; of private property still allowed in the sea, ibid. See

Neutral Trade, Prize.

Capitulations, § 146.

'Caroline,' case of, § 164, note.

Carrying despatches of enemy, highly criminal for neutrals, § 184.

Ceremonial of the sea, § 85; of courts, §§ 84, 94.

Challenges, mediæval, § 115.

Chevalier, Michael, § 118, note.

China exempts occidental residents from its jurisdiction, § 65.

Chivalry, its influence on international law, § 8.

Christianity, its influence on international law, §§ 7, 8.

Cicero, De officiis, § 115.

Coalition against France (1793), app. ii.; (1798), ibid.; (1804), ibid.; (1813), ibid.
Cocceii, H. de, § 181.

Coke, Sir Edward, his Institutes, § 8, note; §§ 89, 92 e.

Comity, § 24; what it includes, ibid.; the foundation of private international law,
§ 69; comity or courtesy, § 82, et seq.

Commercia belli, § 134.

Confederation, treaties of, § 104; of the Rhine, app. ii., 1806.

Conference of London (1832), app. ii.

Conflict of Laws. See Private International Law.

Congress of Cambray, app. ii., 1718; Rastadt, ibid., 1797, under peace of Campo
Formio; Vienna, ibid., 1814, §§ 58, 94, 155; Aix-la-Chapelle, §§ 46, 94; Trop-
pau-Laybach, § 46; Verona, ibid.

Conquest, right of, considered, § 21.

Consolato del mare, § 173, app. i.

Consuls, origin, § 95; functions, § 96; jurisdiction, especially outside of Christen-
dom, ibid.; privileges and status, ibid.; are often natives of the country where
they live, ibid.

Contraband, §§ 178-183; articles forbidden to be exported by Roman law, § 178;