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and was justiciable only in its courts; that the jurisdiction of Spain for any infringement of its laws could only attach to her while in Spanish waters, and ceased as soon as she reached the high seas. Admiral Polo de Bernabe", while admitting the correctness of these propositions as general doctrines of the international law, contended that they applied only to ships which were actually American, and had no bearing on the case of a vessel which was really owned and controlled by Spanish subjects, who,, although in a condition of insurrection, were none the less subjects, and did not even possess the rights of belligerents. He insisted that the Virginius was in fact owned and controlled by such Spanish subjects; that she was in -no respect a United States merchant ship merely engaged in illicit or contraband commerce, but had long been used, and when captured was being used, to convey military expeditions to and in aid of the rebels; that she was, therefore, under the jurisdiction of Spain even on the high seas. He proposed that the difficulty be settled by arbitration, and announced the readiness of his government to refer the matter to any European power which might be named by the United States, and to surrender the vessel into the custody of such power to await the decision. This proposal Mr. Secretary Fish declined, saying "that while the government of the United States was ready to refer to arbitration all questions which are properly subjects of reference, the question of an indignity to the flag of the nation, and the capture, in time of peace, on the high seas of a vessel bearing that flag, and having also the register and papers of an American ship, is not deemed to be one which is referrible to other powers to determine; that a nation must be the judge and the custodian of its own honor." Finally, upon a suggestion offered by the Spanish cabinet and accepted by the President, an agreement was made, the protocol of which was signed on the 29th of November. Spain stipulated to restore the Virginiua and the survivors of the crew and so-called passengers, and on the 25th of December then next, to salute the flag of the United States. "If, however, before that date Spain should prove to the satisfaction of the government of the United States that the Virginiua was not entitled to carry the flag of the United States, and was carrying it at the time of her capture without right and improperly, the salute will be spontaneously dispensed with, as in such case not being necessarily requirable; but the United States will expect in such case a disclaimer of intent of indignity to its flag in the act which was committed." The United States stipulated in such case to adopt legal proceedings against the vessel and against the persons who have been guilty of unlawful acts in connection therewith, while Spain should prosecute any of its colonial authorities who may have infringed Spanish laws or broken treaty obligations. On the 8th of December a supplemental agreement was signed, by which the exact time and manner of the surrender and the details of the salute were arranged. During the interval Admiral Polo was busied in taking the depositions already referred to, and on the 10th of December they were delivered to the Secretary of State, and on the 11th were laid before the Attorney-General, with a request for his opinion thereon. Mr. Attorney-General Williams returned his official opinion, dated December 17th, in which, after recapitulating the evidence and the facts proved by it, he reaches the following conclusion, which we quote verbatim: "Assuming the question to be, what appears to conform to the intent of the protocol, whether or not the Virginius, at the time of her capture, had a right as against the United States to carry the American flag, I am of the opinion that she had no such right, because she had not been registered according to law." Having, as he evidently supposed, answered the question submitted to him by the State Department and the President, the Attorney-General proceeded to express an opinion upon other matters, which we shall examine with care in a subsequent portion of this paper. The diplomatic correspondence was brought to a close on the 22d of December by a letter in which Mr. Fish communicated to Admiral Polo the final decision of the President, — " that the Virginius was not entitled to carry the flag of the United States, and was carrying it at the time of her capture without right and improperly." The salute having been dispensed with, the Virginius was, on the 25th of December, delivered into the custody of a United States man-of-war, to be carried to an American port; but on the way to her destination, while in tow of her convoy, she encountered a slight gale off Cape Hatteras, foundered and sunk to the bottom, and thus forever disappeared from the face of the earth, where she had in her day caused no little anxiety and created no little disturbance.
III. THE LEGAL QUESTIONS.
Two entirety separate matters of difference between the United States and Spain, two distinct questions of the public law, arise out of the foregoing facts, and especially out of the events which took place on the 31st of October and on days subsequent thereto: First, was the capture of the Virginius at the time, place, and in the manner described a lawful act, or was it a wrong done to the United States? If it was unlawful, then this original delict followed and attached to all the subsequent proceedings, so that the United States could justly make reclamations for the execution of the captured persons who were not its own citizens. Secondly, if the seizure itself was warranted by the doctrines of the public law, was the execution of that portion of the prisoners who were American citizens an infringement of any rights of the United States, general or special? It is plain that these questions are different; the answer to one is not involved in that to the other. The first must depend upon principles applicable to all nations; the second may be referred to the particular stipulations of some treaty between the two countries. It is a familiar rule of the international law that the right of protection which a state owes to and may exercise over its citizens extends to them even when they are within the jurisdiction of a foreign power and liable to punishment for a violation of its "laws. It is true this right of protection does not absolve the culprits from the consequences of their guilt, or withdraw them from the local jurisdiction which is about to use its punitive function, but it does authorize the parent state to demand that all the judicial proceedings shall be regular and in accordance with the forms and methods established by law for the trial of such classes of offenders. Assuming that the American crew and passengers of the Virginius were violators of the Spanish laws, and that they had properly fallen into the hands of the authorities at Santiago de Cuba and at Havana, it was the duty of Spain to provide, and the right of the United States to insist, that neither the trial nor the penalty should be exceptional, but that both should conform to the procedure which had previously been adopted by general legislation for all such crimes and criminals. The universal obligation and right thus stated would become special if Spain had expressly stipulated in some prior treaty that certain denned forms and methods should
be observed in hostile proceedings against United States citizens. Enough has been said to show that the two inquiries are entirely independent, and nothing but confusion would result from discussing them together. Under the first, the wrong, if any were done, was total and complete, and the demands of the United States extend to ship, cargo, crew, and passengers; under the second, the wrong, if any were done, was confined to the few American citizens, and the reclamations of the United States are limited to them. As a full discussion of the whole subject would be impossible in a single article, we shall content ourselves with examining the first of these questions, which is by far the more important and the more difficult of the two.
The capture and its consequences. What was the status of the Virginia* and of her owners? The facts contained in the foregoing narrative show with absolute certainty that the vessel was, and from August 27, 1870, had been, the property of certain Cubans who were not citizens of the United States. This conclusion is fully conceded in the opinion of the Attorney-General, and in the decision of the President communicated by the Secretary of State to Admiral Polo on the 22d of December, 1873, although the language of such decision, following that of the protocol, is, " she was not entitled to carry the flag of the United States, and was carrying it at the time of her capture without right and improperly." It follows that the asserted ownership of John F. Patterson was a pretence and a sham, and that the registry in his name was procured by the grossest fraud, and even by downright perjury. The statutes commonly known as the navigation acts require, among other things, that a vessel, in order to be American, and as such to be entitled to carry the flag and the customary ship's papers which certify her nationality, and to demand and receive the protection due to her in such a character, must be wholly owned by American citizens} Prior to obtaining the register, which is the very muniment of title to this national protection, the owner must make, and John F. Patterson did in fact on the 26th September, 1870, make, the following oath: "I, John F. Patterson, do solemnly swear . . . that I am a citizen of the United States, and the true and only owner of the said ship or vessel, and there is no subject or citizen of any foreign prince
or state, directly or indirectly, by way of trust, confidence, or otherwise, interested therein, or in the profits or issues thereof." I need not recapitulate the facts, but they demonstrate that this oath was false in every particular when made, and continued to be false as long as the steamer pursued its career.
About the year 1868 a revolt against the Spanish crown broke out in Cuba, with the design, it is said, of securing the independence of that island and establishing a republic therein. This movement, which has continued to the present day, has perhaps attained the condition of an insurrection. Neither Spain nor any other power, European or American, has recognized the insurgents as belligerents, nor the contest as a proper war. Although the revolted subjects have maintained their attitude of resistance for several years, although they have been enabled to keep a fluctuating possession of some portions of the interior, and although they use the language of a pefected state organization, — speaking of a titular president, of foreign missions, generals, and the like,— yet they possess no government dominating over any defined part of the territory, including seapors, seat of administration, and other indicia of permanence, and it is very doubtful whether their so-called army is other than a number of undisciplined, independent, predatory bands, sometimes dispersed and again appearing, but without an actual head or system. At all events., Spain has hitherto chosen to treat its own measure*! of repression as altogether civil, following in this respect the precedent set by the Executive and State Department of the United States during the first year of the rebellion. The insurgents, not being recognized as belligerents, have no means of communicating directly and in their collective name with maritime countries, although their insular position and their need of military material render such communication indispensable to the continuance and success of their contest. They have no flag. The ensign which they have adopted, and which they call the flag of the Cuban Republic, is not officially known, and could not be officially recognized, as the symbol of even a quasi or de facto nationality. No ship, either naval, privateer, or merchant, bearing that flag, upon entering a port of any civilized state, could transact business therein, nor perhaps even be suffered to depart therefrom, for it could not comply with the maritime and commercial laws of the nation to which the port belonged; the ship's papers, the commissions, and the flag