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THE VIRGINIUS CASE.1

Although the protocol of conference signed by Mr. Secretary Fish and the Spanish minister November 29,1873, and the supplementary agreement between the same parties of December 8, the decision of the Executive as to the real ownership announced December 22, and the total loss of the vessel at sea while on her way to an American port, have subdued or even destroyed the intense popular excitement which so suddenly arose about the Virginius case, and which, but for the calm wisdom and moderation that guided both the governments at Washington and at Madrid, might have driven the two nations into an unhappy war, yet the case itself involves questions of public law of the highest.interest to us and to all maritime countries, — questions which, depending upon analogies rather than upon any positive precepts of international jurisprudence, cannot be considered as yet definitively settled, and which may, therefore, arise again to vex the deliberations of cabinets and to disturb the tempers of peoples. It is a matter of supreme importance to the United States that the particular doctrines upon which this and all similar international disputes must rest, should be established on a sure basis, both of equitable principle and of statesmanlike policy. While every citizen, regarding the flag as the symbol of national independence and sovereignty, should properly resent a wrongful act towards it as an insult to his country, yet he should be taught to regard the unlawful and fraudulent use of that flag ns a far graver insult than any mere proceeding of external violence or interruption. Since we Americans have asserted, and, by means of the three rules contained in the Treaty of Washington and the decision at Geneva thereon have partially established the broad principle of neutral responsibility and active neutral duty towards the combatants in a war which may be maritime,

1 An article discussing some of the legal questions in this case upon the facts as then disclosed was prepared for our January number; but the important developments which were made in December required that the paper should be entirely re-written, and the brief time which intervened rendered that impossible for the January number. We are now enabled to give an exhaustive rhumt of the facts, and a careful discussion of the law.

and since, by the long extent of our coast and the nature of the foreign population which collects in our principal seaports, we are peculiarly exposed to unlawful and clandestine invasions of our status as a neutral power, it would seem to be the first duty of the government to adopt such rules as will prevent the fraudulent use of our flag, and to enforce these rules in such a manner as to show that our practice is to be in conformity with our theory. This course is not only demanded by abstract justice, but is in accordance with the dictates of mere expediency. From these considerations it is proper, now that the popular excitement of the day has passed, to review the Virginius case in a calm and judicial manner, to ascertain, if possible, the doctrines of the public law which govern it, or, if it be found that no such doctrines have as yet been authoritatively established, to indicate the rules which ought to be accepted by the United States as at once just and politic. The discussion will be separated into three principal heads: first, a historical sketch of the Virginius; second, a very brief statement of the diplomatic correspondence in reference to her seizure; and third, an examination of the legal questions which arise in the case.

I. A HISTORY OF THE VESSEL AND OF HER OPERATIONS TO THE TIME OF HER CAPTURE BY THE SPANISH MAN-OF-WAR.

The narrative which follows is condensed from the depositions and exhibits found in the " Message of the President containing the correspondence and documents relative to the capture of the steamer Virginius and proceedings subsequent thereto," transmitted to Congress January 5, 1874.1 The evidence of the facts which are detailed is found in the custom-house papers relative to the registry of the steamer and her clearance from New York in 1870; the testimony of two Venezuelan prisoners taken at Havana in November, 1871, by a Spanish magistrate, in presence of the American and the Venezuelan consuls; the ex parte affidavits of Captain Francis E. Shepperd (May 2, 1872), and of two seamen (December, 1870), and certain depositions made at New York in November and December, 1873, before a United States commissioner. This latter inquiry was by arrangement conducted by counsel representing the Spanish minister, and by

i 43d Cong. 1st Sen. H. of R. Ex. Doc. No. 30.

the United States District Attorney, representing the State Department, the cross-examination being careful and searching. The witnesses on this occasion were Francis E. Shepperd, Francis Bowen, and Charles Smith, successively masters of the Virginim after her departure from New York in 1870 ; Edward Greenwood, her first assistant-engineer; five of her seamen or firemen; and lastly, Adolfo de Varona, a leading member of the Cuban junta at New York. There is no reason to doubt the truthfulness of the statements made by these persons; they sustain and corroborate each other even in regard to minute particulars; they were testifying against their own interest, for they disclosed acts done by themselves in violation of United States statutes. In respect to Varona, some more particular observations will be necessary in the proper place. Having thus described the official sources from which the account of the Virginiu a and her operations is obtained, it will not be important to verify each fact in the narrative by a special reference to the page of the congressional document where the evidence of it is to be found.

The Virgin was originally an English-built blockade-runner, captured during the war, and in 1866 was at New Orleans, the property of the United States. Having been sold to one M. T. Steele, she again in 1867 reverted to the United States by reason of Steele's failure to pay the purchase price. In 1870 she was lying at Washington. She was there sold and conveyed to John F. Patterson for the sum of $9800, the bill of sale being executed by E. C. Banfield, Solicitor of the Treasury, on the 27th of August, 1870. It does not clearly appear whether this price was in the first instance paid by the Cuban junta, so that coming originally from them it merely passed through the hands of Patterson as a conduit, or whether it was advanced by Patterson or Roberts, with whom he acted, and was refunded to him by the Cubans. There can be no doubt, however, that the purchase and conveyance were from the outset made on behalf of this Cuban association, and in pursuance of a prearranged agreement. Who was Patterson? Marshall O. Roberts and J. K. Roberts were largely interested in the Florida railroad, and in a line of steamers running in connection therewith. Patterson had been in their employ, sometimes as a personal agent of M. O. Roberts, and sometimes as a subordinate official of the railroad. J. K. Roberts was associated with Patterson in the purchasing, repairing, and clearing of the Vtrginius, and it was for a while a matter of doubt in which of their names the title should be taken. In September, 1870, this Roberts employed Captain Shepperd as commander to take the newly purchased steamer from Washington to New York, which he did during that month. At this time, or immediately after her arrival in New York, Roberts told Captain Shepperd that he had bought the vessel on account of certain Cubans, among whom were Jose" Maria Mora and Gen. Manuel Quesada, that these Cubans had furnished the money to pay the purchase price and for the repairs afterwards made upon her. About two weeks after her arrival in New York Roberts again informed Captain Shepperd that the steamer was owned by the Cubans, and was to be used by them in their enterprise, and inquired if he would be willing to take command of her for that purpose. The captain naturally desired to communicate directly with the principals, and an arrangement was made for his immediate introduction to them. That evening, at the house of Mora, an interview took place, Roberts, Patterson, Mora, Quesada, Varona, and a number of other Cubans, being present. Mora and Quesada declared that they were owners of the Vtrginius. An arrangement was there perfected by which Shepperd was made her master, to act, however, under Quesada's directions, and she was to proceed directly to Curacoa, but her ultimate object was to be the transporting of arms, munitions of war, and soldiers to the island of Cuba in aid of the insurgents thereon. In the mean time repairs were made, an outfit furnished, and a crew engaged, under the ostensible direction of J. K. Roberts and Patterson, each of these gentlemen disbursing the necessary money for those purposes. The vessel, then called the Virginius, was registered in the name of John F. Patterson as owner, he making the necessary oaths as to his sole interest; but an informality exists in the preliminary official papers which it is proper to point out, as it may affect even the primd facie validity of the registry. The United States statutes1 require that "previous to the registry of any vessel or ship, the husband, or acting and managing owner, together with the master thereof, and one or more sureties, shall become bound to the United States in the sum of $2000," upon a certain condition which it is unnecessary

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to state. The bond actually given in pursuance of this requirement, and dated September 26, 1870, is executed by Patterson and Shepperd alone without any sureties. On the 4th of October, 1870, the steamer cleared from New York, and the necessary official documents were executed by the master, showing that she was bound for Curacoa. The ship's company consisted of about thirty men, H. Marquis being the chief engineer and Edward Greenwood the first assistant. The cargo, as appeared by the manifest, consisted of 170 barrels of bread, valued at $680, two boxes of saddlery, $400, and four boxes of clothing, $350. No insurance was effected either upon the ship or the cargo. Leaving the bay on the 5th of October, the same afternoon, when a few miles below Sandy Hook, she met a steam-tug, — the Virginia Seymour, — and took on board from the latter about twenty Cubans, among whom were Gen. M. Quesada, Adolfo Varona, Eloy Camacho, and Domingo Mora, and also a few boxes containing arms, ammunition, and military accoutrements. The tug returning, the Virginius, with her completed cargo and passenger list, pursued her way towards Curacoa. Captain Shepperd testifies that during the entire voyage he acted under the directions of Gen. Quesada, communicated to him by Varona, and that from first to last he regarded and treated these persons and their associates as the actual owners, and as having complete control over the vessel's movements. At one time, before reaching their destination, a merchant ship being in sight, Quesada proposed to the captain to raise the Cuban [insurgent] flag, and to capture the vessel if she should turn out to be Spanish. The worthy captain declined doing this himself, but with a true thrift suggested that it would be a very easy matter for them to overpower him, and tie him in his cabin, and then make the capture on their own responsibility. This ingenious scheme was frustrated, however, by the discovery that the vessel in sight was British. The Virginius reached Curacoa on the loth of October. On the next Tuesday the schooner Billy Butts arrived from New York, and on the afternoon of the next day stood out to sea again. The same night the Virginius followed, overtook the schooner, and towed her to Buen Ayre, an island about thirty miles distant. The cargo of the Billy Butts was immediately transferred to the steamer. This cargo consisted of several hundred cases of shot, shell, and ammunition, more than 100 cases

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