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been legal; but a mile beyond this limit, it is said, the seizure would have been illegal. If this be so, the illegality would depend not upon the character of the steamer itself and of its operations, but upon its position for the time being. In his opinion, already referred to, the Attorney-General said: "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 not, because she had not been registered according to law." In this sentence the AttorneyGeneral, by interpolating a clause, entirely changed the meaning of the protocol, and did not in fact answer the question proposed to him by the President and the Secretary. The language of the agreement is: "If . . . the Virginias was not entitled to carry the flag of the United States," &c.; but Mr. Williams makes it read, "is not entitled as against the United States to cany the flag," and thus misconceives the very point at issue, and the whole nature of the controversy. He decides that she was not thus entitled, " because she had not been registered according to law." But if she was not registered "according to law," she was in no respect an American vessel, nor entitled to any protection as such from the government. Being confessedly owned and used by foreigners, her only claim to the primd facie character of a United States ship, and to the protection accorded thereto, was the register which certified that fact. If this register was "not according to law," even the primd facie claim fails, and the United States has no foundation whatever for its reclamations. This conclusion is a just and necessary inference from the language which the Attorney-General has seen fit to use, but it is possible, and perhaps probable, that he simply failed to express his thought in appropriate words. The register was "according to law," that is, all the forms required by the statute had been complied with except the omission of sureties in the preliminary bond already mentioned, but as no remark was made upon that defect, it was doubtless considered as immaterial. The difficulty was not in failing to proceed "according to law," but iu using these legal forms to cover a falsehood and to perpetrate a fraud. After answering the question submitted to him, the Attorney-General proceeded to express the following extra-official opinion: "I am also of the opinion that she was as much exempt from interference on the high seas by another power on that ground as though she had been lawfully registered. Spain, no doubt, has a right to capture a vessel with an American register and carrying the American flag found upon her own waters assisting or endeavoring to assist the insurrection in Cuba, but she has no right to capture such 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. Spain may defend her territory and people from the hostile attacks of what is or appears to be an American vessel, but she has no jurisdiction whatever over the question as to whether or not such vessel is on the high seas in violation of any laws of the United States." That is to say, although the steamer was not registered " according to law," which defect destroys her national character, yet she enjoys all the privileges and rights as against other nations which would have belonged to her had she been properly registered. This, to say the least, is strange logic. But the learned Attorney-General utterly misapprehends the point at issue and the contention of either party. Spain did not arrest, nor claim to arrest, the Virginius because she was " violating the navigation or neutrality laws of the United States," nor setup "jurisdiction over the question whether or not she violated any law of the United States." The only ground or justification of the capture was the fact that the Virginius was owned by Spanish subjects, and was, as a Spanish vessel, under the authority of Spain, whether within its own territory or upon the high seas. That United States statutes were evaded or broken was a mere incident; the force of argument used by the Spanish minister and the object of all the evidence collected by him was to show the actual ownership and the true nationality of the offending steamer.
It is now a settled rule of the international law, too well established to require the citation of authorities, that in time of peace the merchant ships of one power cannot be visited or searched while on the high seas by the men-of-war of another power. What is the exact meaning and extent of this rule? It is invoked to condemn the act of Spain. Does it require that the register and flag of one nation should absolve a vessel under all circumstances, no matter what its actual ownership and conduct, from capture on the ocean by another power? If the master and crew of an American trading ship, owned by United States citizens and properly documented, should during the voyage procure her to be armed and set out upon a piratical cruise, must the flag and the original register still be respected, and the criminals be liable only to arrest by a United States man-of-war? It is plain that the rule, however broadly it may be stated, has some exceptions, and that the flag and papers, though regular on their face, are not an absolute protection. Again, the rule as relied upon not being based upon the true character and destination of the vessel, but upon her possession of certain official papers and of a flag, would apply as well to the case of an armed ship as to that of a trader; if Quesada had, therefore, furnished the Virginius with guns and a complete naval armament after reaching the Caribbean Sea, and had cruised as a privateer, she would, under the theory we are examining, have been entitled to an American protection as complete as though she had contiuued to act as a transport. If this be the present doctrine of the international law, it is for the interest of all maritime countries, and of none more than the United States, to procure a speedy amendment. Such, however, cannot be the law. Freedom of the seas and of commerce is one of the great blessings due to modern civilization, and it cannot be charged with such consequences; "free commerce" cannot have made it possible that aimed ships belonging to no recognized power, representing no actual sovereignty, should cruise the ocean practically amenable to no jurisdiction and safe from capture. Although the right of visit and search in time of peace upon the high seas does not in general exist, and by virtue of this doctrine an American vessel cannot be stopped and examined nor seized by the cruiser of another power, the limitation of the rule is contained in its very statement, — the vessel must be American. Doubtless a risk would be run in every instance of visiting a ship which carried the American flag; if she should turn out to be lawfully carrying that flag, if her nationality were actually what was certified by the symbol, the sovereignty of the United States would have been invaded, and an occasion would have arisen for reclamations against the offending power. But if, on the other hand, the flag and papers should prove to be fraudulent, and the nationality to be the same as that of the captor, the reason of the rule, and, we submit, the rule itself, would not apply. This subject is discussed by Mr. Dana in his notes to Wheaton's Treatise, and these notes have received from our government a semi-official sanction, as expressing the views which have guided the State Department in much of its diplomatic correspondence respecting maritime rights and obligations. After a history of the doctrine and a reference to the opinions of jurists, Mr. Dana closes that part of his examination as follows: "But carrying American flags or papers is a fact as to which nothing can be predicated affecting a right to visit. If the vessel was American, she was exempt; if not, the American government claims no interest although she carried its flag. If an officer is required by his warrant to arrest John Doe, charged with crime, and stops a man wearing the dress and using the name of Richard Roe, and compels him to submit to examination of his person and papers to ascertain, not his guilt or innocence, but whether he is John Doe, then if he turns out to be John Doe, Richard Roe has no cause of complaint; but if he proves to be Richard Roe, the officer is a trespasser although acting in good faith. This analogy may serve to clear up the mist which seems to cover the subject as it has been viewed by some writers."1 The occasion which gave rise to the most exhaustive discussion of the subject in all its relations was the slave-trade. Great Britain, having adopted the policy of destroying the slave-trade, claimed, and often exercised, the right of its cruisers to stop and examine suspected vessels, although carrying the flags of other nations, and to seize them if the proof was sufficiently strong. During along period the British government was zealous in recommending this policy to other states, and in obtaining their assent to it. In a few instances, however, a resistance was met, which no arguments, no considerations of any kind, could overcome. The United States was the leader in this opposition, and even succeeded in inducing France to withhold its ratification from a treaty which the plenipotentiaries of all the leading European powers, including its own, had signed. Prior to 1842 a correspondence, extending through several years, had been carried on between the State Department at Washington and the British Cabinet, the latter claiming the right to visit a suspected vessel, and the former denying such right in any form and to any extent. The result was an abandonment of its position by Great Britain, and the stipulations of the " Ashburt'on Treaty " of 1842, in which each of the high contracting powers agreed to maintain
a squadron off the coast of Africa, the United States cruisers' to visit and search, and, if proper, capture the suspected vessels which bore the American flag. It should be remembered in this connection that the foreign policy of the United States government for many years prior to 1842, and subsequently to that date until 1861, was in the interest of slave-holders and slave-holding. That an administration in 1874 should adopt the arguments and take the position of the former race of statesmen, who devoted all their labors to upholding the system of slavery, is remarkable enough, but is still more startling when we remember that in 1862, after the domination of the slave-holders had ended, the government, under the lead of Mr. Secretary Seward, voluntarily receded from its former position and conceded the right of visit, search, and seizure to the British cruisers within certain waters near the African coasts. What was the exact contention of the United States during this protracted controversy? Unquestionably the inviolability of the American national character impressed upon a vessel was asserted in the most positive manner, and supported by reasoning which has received the approval of all subsequent text-writers, not excepting the English. In the course of the correspondence, which sometimes became heated, there were expressions which, taken by themselves, went to the extent of declaring that the mere presence of the American flag was conclusive without any reference to the real nationality or actual guilt of the vessel which carried it. This, however, is not the meaning to be gathered from the entire scope of the discussion. The right to visit, search, or seize an American bottom suspected of being a slaver was most emphatically denied, — any such act was done at peril; if the suspicions proved to be groundless, not only the private owners but the United States also would have just grounds of complaint and reclamations for an invasion of proprietary and of sovereign rights. If, however, it should turn out as the result of the search that the ship was a slaver; that she had on board a cargo of negroes on the way to a market; that her papers were obtained through fraud; and that her use of the flag was unlawful; and if she should thereupon be captured and taken into a British port for condemnation, — there is nothing to indicate, notwithstanding some superficial writers have expressed a contrary opinion, that the apparent American owner could intervene in the cause and claim a restoration to himself of the ves