f DEC 13 Mil J

THE CASE Viis^i^

OF TIIK

VIRGINIUS,

CONSIDERED WITH REFERENCE

TO THE

LAW OF SELF-DEFENCE.

BY
GEORGE TICKNOR CURTIS.

NEW-YORK:
BAKER, VOORHIS & CO., 66 NASSAU STREET.

LONDON :
TRUBNER & CO.,
5 7 AND 5 9 L U D G- A T E H I I. I. .

1874.

THE CASE

OF THE

VIRGIN I US,

CONSIDERED WITH REFERENCE

TO THE

LAW OF SELF-DEFENCE. BY
GEORGE TICKNOR CURTIS.

NEW-YORK:
BAKER, VOORHIS & CO., 66 NASSAU STREET.

LONDON:
TRUBNER & CO.,
57 AND 59 IiUDGATE HlLL.
1874.

THE CASE OF THE VIRGINIUS.*

It is by no means an easy undertaking to eliminate from
this complicated case the real question that has been settled by
it, if it can be said that any new question has been settled by
the concurrent action of Spain and the United States. The
course of the negotiation at Madrid, its sudden transfer to
Washington, the change from the original demand to the ex
tradition that was finally agreed upon between Admiral Polo
and Mr. Fish, together with the claim of the President's spe
cial Message that the extradition " was an admission of the
principles on which our demands had been founded," render
it necessary to make a careful analysis of the negotiation and
the facts. It is important to know what principles and what
demands, asserted and made by the United States, have been ad
mitted by Spain. Under the President's Message of January
5th, it might be claimed that, notwithstanding Spain, before
the Message was sent to Congress, had proved to the satisfaction
of the United States that the Virginius had no lawful title to the
national character of an American vessel ; that she was in fact
either owned or wholly controlled by Cuban insurgents, and was,
when seized, engaged in an attempt to land a military expe
dition on the island of Cuba, if not also engaged in a general
cruise against Spanish commerce — yet that Spain has, by ac
ceding to the demand made for her surrender and the surren
der of the surviving persons found on board, admitted that
her seizure was precisely as unjustifiable as if she had been a
regularly documented American vessel, with full title to the

* Message from the President of the United States, transmitting' docu
ments and correspondence relative to the capture of the steamer Virginius,
and proceedings subsequent thereto. 43d Congress, 1st Session, (1873-74.)
House Executive Documents No. 30.

protection of the American flag. In the introductory part of
his message, after stating that the Virginius was registered at
New-York in 1870, in the name of an American citizen, went
to sea, and had never returned to the United States, the Presi
dent puts the case in this way :
"When, therefore, she left the port of Kingston in October
last, [1873,] under the flag of the United States, she would ap
pear to have had, as against all powers except the United
States, the right to fly that flag, and to claim its protection, as
enjoyed by all regularly documented vessels registered as part
of our commercial marine. No state of war existed, confer
ring upon a maritime power the right to molest and detain
upon the high seas a documented vessel ; and it can not be
pretended that the Virginius had placed herself without the
pale of all law by acts of piracy against the human race. If
her papers were irregular or fraudulent, the offence was one
against the laws of the United States, justiciable only in their
tribunals." " When therefore it became known that the Virginius had
been captured on the high seas by a Span ish man-of-war ; that
the American flag had been hauled down by the captors; that
the vessel had been carried to a Spanish port ; and that Spa
nish tribunals were taking jurisdiction over the persons of
those found on her, and exercising that jurisdiction upon
American citizens, not only in violation of the rules of inter
national law, but in contravention of the provisions of the
treaty of 1795, 1 directed a demand to be made upon Spain
for the restoration of the vessel, and for the return of the sur
vivors to the protection of the United States, for a salute to
the flag, and for the punishment of the offending parties."
This, it is true, is only a statement of the case as it ap
peared to the President when he made the original demand
for the extradition. But he proceeds in the same immediate
context to say :
" The principles upon which these demands rested could not
be seriously questioned ; but it was suggested by the Spanish
o-overnment that there were grave doubts whether the Virgi
nius was entitled to the character given her by her papers ;
and therefore that it might be proper for the United States,

after the surrender of the vessel and the survivors, to dispense
with the salute to the flag, should such fact be established to
their satisfaction. This seemed to be reasonable and just. I
therefore assented to it, on the assurance that Spain would
then declare that no insult to the flag of the United States had
been intended. I also authorized an agreement to be made
that, should it be shown to the satisfaction of this government
that the Virginius was improperly bearing the flag, proceedings
should be instituted in our courts for the punishment of the
offence committed against the United States. On her part,
Spain undertook to proceed against those who had offended
the sovereignty of the United States, or who had violated their
treaty rights."
Having made these statements for the information of Con
gress — statements which show of themselves that, while the
principles on which the original demand was made could not
be seriously questioned because the demand was made for a
vessel having a right to the protection of the American flag
" as enjoyed by all regularly documented vessels registered as
part of our commercial marine," yet that Spain had made the
surrender as of a case in which the national character of the
vessel was denied, and for the purpose of having her true cha
racter determined by the United States — the President passes
at once to the conclusion that " the surrender of the vessel and
the survivors to the jurisdiction of the tribunals of the United
States was an admission of the principles on which our de
mands had been founded."* Whether this is a sequitur or a
non-sequitur, can be determined only by a full examination of
the negotiation and its results. If the President meant the
world to understand that he claimed to apply the same princi
ples to the case of a vessel not entitled to the character of " a
regularly documented vessel registered as part of our commer
cial marine," that he would apply to a vessel having such cha
racter, and that Spain has admitted that the two cases are not
distinguishable in respect to the principles applicable to the
supposed right of seizure, the claim is intelligible. But it is

* In all cases, the italics marking the extracts from these documents are
our own.

6
important to ascertain whether Spain has made this admission.
If the case which Spain put into the hands of the United
States for investigation was the case of a vessel asserted by
Spain not to be entitled to the national character of an Ameri
can vessel, the mere extradition for the purposes of that inves
tigation, carries no admission that the seizure was wrongful.
Such an admission could only be claimed in consequence of a
clear and unequivocal concession on the part of Spain, that,
whether the vessel was or was not entitled to the American
character, the principles that govern the rightfulness of the
seizure are the same. Such a concession would seem to be
repelled by the fact that Spain denied that "the Virginius was
entitled to the character given her by her papers," and had
surrendered her to the United States to have this question in
vestigated, as the vital one on which the salute to our flag was
to turn, and in order that she might be proceeded against
under the municipal law of the United States. If the course
of the negotiation, indeed, shows that Spain accompanied or
preceded the surrender by an admission that the national cha
racter, or the want of it, made no difference in respect to the
asserted right of seizure, then the claim of the President's
Message, taken in its broadest scope, is sound. Otherwise, that
claim will not be so received by the world at large.
The Virginius was seized, after a chase, by the Spanish
cruiser Tornado, on the high seas, not far from Jamaica. In
telligence of the fact was received by the American government
on the 5th of November. Mr. Fish, the Secretary of State,
was absent, but he returned to Washington on the evening
of the 6th. Communication with the Spanish government
was immediately commenced through General Sickles, the
American Minister at Madrid, and the negotiation through
that channel was continued down to the time when it was
transferred to Washington. The first peremptory demand
made through General Sickles was cabled to that Minister by
Mr. Fish on the 14th of November, in these terms :
"Unless abundant reparation shall have been voluntarily
tendered, you will demand the restoration of the Virginius,
and the release and delivery to the United States of the per
sons captured on her who have not already been massacred

and that the flag of the United States be saluted in the port
of Santiago, and the signal punishment of the officials who
were concerned in the capture of the vessel and the execution
of the passengers and crew. In case of refusal of satisfactory
reparation within twelve days from this date, you will, at the
expiration of that time, close your legation, and will, together
with your secretary, leave Madrid, bringing with you the
archives of the legation." . .
This demand was prompted, at the time, mainly by the in
telligence that a large number of the persons taken from the
Virginius, after she had been carried into Santiago de Cuba,
had been put to death by the local authorities ; and it was
feared that there might be American citizens among the sur
vivors. What then was the case, in reference to which this
demand for the surrender of the vessel was made, with the
alternative of an immediate rupture of diplomatic relations in
case of refusal ? We have examined the correspondence mi
nutely, and we think it leaves no doubt that the demand was
made upon the assumption that the Virginius was a regularly
documented American vessel. Although Mr. Fish, two days
before (Nov. 12th), had " confidentially " informed General
Sickles that " grave suspicions exist as to the right of the Vir
ginius to carry the American flag, as also with regard to her
right to the American papers which she is said to have," it is
plain, from the whole tenor of the correspondence, that the
demand was based on the assumption that she had those
rights.^ Writing to General Sickles on the same day (Nov.
12th), Mr. Fish informed him that an investigation was going
on at Washington, to ascertain the character of the vessel ;
but cautioned him not to admit a doubt on this point, until it
should appear that the nationality of the vessel could not be
sustained ; while he at the same time added that " the doubt
imposes on the government the necessity of caution in ascer
taining the facts before making a positive demand." Now,
whatever may have been . the facts which the American gov
ernment discovered before the peremptory demand was made,
it is certain that General Sickles made that demand as for a
regularly documented American vessel, without intimating
the least doubt about her national character. In so doing he

conformed to his instructions. In his note of November 15th
to Senor de Carvajal, the Spanish Minister of State — a note
which covered the formal demand — General Sickles called the
vessel " the American ship Virginius ;" and in his confer
ences with that minister both before and after the 15th, Gen
eral. Sickles gave him to understand that the American flag
was deemed to have been insulted, and American rights vio
lated by the seizure, because the Government of the United
States regarded the Virginius as an American vessel. Senor
de Carvajal, who had, on the 13th, an understanding with
General Sickles that the real character of the vessel ought to
be known, and that there ought to be time given for investiga
tion before her character should be assumed as the basis of a
demand, complained that the demand of the 15th was incon
sistent with that understanding, and that the demand could
only have been made upon knowledge obtained by the United
States that the vessel was truly an American ship, the seizure
of which would call for reparation; knowledge, he said,
which his (the Spanish) government had not yet had time
fully to obtain, and therefore it was not in a situation to meet
the demand. He closed by saying that Spain would decide
upon nothing relating to the supposed offence against the
American flag, until she was certain that an offence had been
committed by her ; but that when so certain, she would make
all the reparation that the case required. On the evening of
Nov. 18th, the Spanish Minister in Washington expressed to
Mr. Fish, by special instruction of his government, its resolu
tion to be governed by the rules of international law, and to
punish all who had justly become liable to punishment, and
to make reparation if right should require it, urging at the
same time that further light upon the case was necessary.
This request for further time was assented to by the President,
and Mr. Fish instructed General Sickles, on the 19th, to
remain at Madrid, until further orders.
It is clear from the whole course of this negotiation, that
down to the 19th of November, the demand of the United
States, which still rested before the government of Spain at
Madrid, was based on the alleged American character of the
vessel ; that the Spanish government could have understood

9
it in no other way, because it was not presented to them in
any other way, and because they wanted time to ascertain if
this basis of the demand was true. It is also apparent, we
think, that so far as the English government or other powers,
seconded or approved the demand of the United States, they
did so on the assumption that the Virginius was what the
Deerhound was — a regularly documented ship, with a regular
national character.
Further confirmation of the sense in which the Spanish
government understood the basis of the demand, is to be found
in what took place at Madrid on the'27-28th November..
On the 28th, General Sickles telegraphed to Mr. Fish :
" Last night it was agreed that, accepting my declaration
of the nationality of the Virginius, reparation would be made-
in accordance with our demand of the 15th instant. This-
was ratified by the council of ministers at three this morning,.
and I was promised an official communication in that sense
to-day. I am now informed in a note from Minister of State
that yesterday you authorized the Spanish Minister in Wash
ington to convey to this government a different proposition on.
the part of the United States, and that it has been accepted,,
of which you have been notified through Admiral Polo.""
The declaration on which General Sickles obtained what he
reported as the informal assent of the Spanish government to
the demand of the 15th, was in these strong and emphatic
terms : " The undersigned has heretofore declared, and he
now repeats the declaration, in the name of his government,,
that the Virginius was, at the moment of her capture on the
high seas, a regularly documented American ship. The asser
tion of a government which has accorded to a vessel the right.
to sail under its flag, is the best evidence of her nationality..
Every such ship is registered in the public archives. It can
not be supposed that any respectable state would volunteer-
its protection to those having no right to claim it. Nor is it
usual, when, in a case like this, the injured government
affirms the nationality of the ship, to put that averment in-
issue and demand proof as a preliminary to the consideration
of reclamations for an affront offered to its flag. The tinder^
signed, therefore, submits to the enlightened judgment of Mr..

10
Carvajal, that, in harmony with the usage and comity of
nations, Spain mm/ well dismiss all controversy as to the
nationality of the Virginius, accepting as indisputable the fact
that she was a regularly documented American ship, and,
moved by the traditions of a friendship uninterrupted for a
century, proceed at once to accord to the United States that
measure of reparation which she has already loyally recog
nized as befitting her own dignity, and due to an ancient
ally." We pause here to say that, if the United States thus
solemnly asserted the national character of this vessel at
Madrid, for the purpose of obtaining compliance with their
demand of November 15th, and simultaneously or afterward
obtained from Admiral Polo'in Washington an agreement to
give up the vessel on another basis, that other basis being that
she may not have been a regularly documented American vessel,
but nevertheless that she must be surrendered as if she were,
the United States may have acted consistently enough, as diplo
macy goes ; but it is clear that Spain has not admitted that
she could be rightfully demanded unless she was demanded as
an American ship. Let us see what takes place at Washing
ton, between Admiral Polo and Mr. Fish ; bearing in mind
that at this very time General Sickles remains at Madrid only
to wait a settlement of this difficulty, and that the plain conse
quence of a refusal by Admiral Polo to accept the basis on
¦which Mr. Fish still presses the surrender, is — War.
On the 27th of November, Admiral Polo called upon Mr.
Fish. We take the following extract from the official memo
randum of the interview :
" Admiral Polo called upon Mr. Fish, when the latter read
to him a telegraphic dispatch, dated last evening, received
this morning from General Sickles, some words of which, he
stated, are not capable of being intelligibly deciphered, but
enough is translated to disclose the general purport of the dis
patch. It presents a proposition on the part of the Spanish
government with which Mr. Fish says that the United States
•can not- comply. [The proposition'was to make the reparation
•demanded, on or before the 25th December, if the investigation
tthen making by the Spanish government should show that the

11
*
Virginius was not a regularly documented American ship.]
Mr. Fish makes this statement and communication to Admiral
Polo, inasmuch as it appears from General Sickles's dispatch,
now received, that he has requested his passports, and may
have left Madrid. He [Mr. Fish] proceeds to say that it can
not be and is not questioned that the Virginius was regularly
documented with American papers when she sailed from the
United States in October, 1870, and that she was entitled to
carry the flag of the United States ; that the official report of
the commander of the Tornado, published in Havana papers
of the 15th inst., states that the Virginius bore the American
flag when she was captured on the high seas by a Spanish
vessel, and that the American flag was hauled down and the
Spanish flag was hoisted by an officer of the Spanish navy.
He said that the United States deny the right of any other
power to visit, molest, or detain on the high seas, in time of
peace, any American vessel ; that the exemption of the vessels
of every power from visit or molestation in time of peace, and
on waters common to all nations, is claimed and observed by
all the great maritime powers, and is recognized by all the
principal writers on international law."
Here then it is as plain as words could make it, that Mr.
Fish asserts that this vessel, when she sailed from the United
States in October, 1870, was regularly documented and entitled
to wear the flag of the United States. This was not true, as
subsequent investigation proved, but of course Mr. Fish did
not then know that it was not true. But right or wrong, it
was asserted, as the basis of the demand with which Mr. Fish
informs Admiral Polo he must somehow comply ; and it is as
to " any American vessel" that Mr. Fish denies the right of
any other power to visit, molest, or detain on the high seas, in
time of peace. Accepting what is thus asserted of the national
character of this vessel as the basis of her surrender, Admiral
Polo agrees that on this basis she shall be given up and the
American flag shall be formally saluted by Spain (the usual
apology in such cases), unless Spain shall, before the 25th of
December, reverse this basis by proving that the Virginius did
not rightfully carry the American flag, and was not entitled to
the American papers which she carried. If such proof should

12
be made, the salute was to be dispensed with, because nothing
had in that case been done in derogation of the sovereignty
and jurisdiction of the United States. Spain is therefore, in
our opinion, fully entitled to say that the surrender was made
upon the ground that the American government claimed the
vessel as being absolutely entitled to the American character ;
that the surrender is an admission of the principles on which
our demands had been made, so far as those principles relate
to the case of a vessel fully entitled to the character of an
American vessel ; but that so far as they relate to a vessel of
the character which Spain subsequently proved was the true
character of the Virginius, no admission whatever has been
made. To give any other construction to the surrender, or to
deduce any other consequence from it, would obviously be un
fair. It would, moreover, leave the government of the United
States under the imputation of having forced a perhaps com
paratively weaker government into an admission that it never
intended to make. Whatever may be the latitude that is
allowed to diplomacy, we have no desire to see the reputation
of our country for fair dealing exposed to the injury that re
sults from gaining its national objects by one means, and then
claiming that it has gained them by another. We are disposed
to construe the President's Message with a charitable regard
to the facts, and not to understand him as claiming^that Spain
has admitted what the facts show she has not admitted.
Passing from all diplomatic assumptions respecting the
character of this vessel, and from all statements respecting her
character as the basis of an agreed extradition, we will now
make a careful statement which will show her true character ;
premising that we draw it, in part, from the evidence on which
the Attorney-General of the United States found that she had
not, at the time of her seizure, a right to carry the American
flag, because she had not been registered according to law.
We do not propose to adopt in all respects the Attorney-
General's law, or to discuss at any length his qualification
that the Virginius had not a right to wear the flag, " as
against the United States." If he meant, as we presume he
did, that in regard to the United States as her sovereign, this
vessel had no right to wear the American flag, and conse-

13
quently was not within that sovereign's protection — in which
we should entirely concur — we should yet by no means concur
in his proposition that she could not under any circumstances
be interfered with on the ocean by another sovereign. A
vessel derives its national character from the law of the coun
try which grants its evidence of national character ; and if it
has no national character derived from compliance with that
law, as respects the nation to which it ostensibly belongs, it
has none with respect to the whole world. To have a national
character, whether for municipal or international purposes, a
vessel must have derived that character from the law of some
nation, by compliance with the conditions on which that
nation grants the national character of its ships. The law of
nations can only regard the municipal law, in determining
whether a ship, when she left her home port, or the port
which she claims as her home, was regularly documented.
Where and how the question of national character can be
raised and tried, depends upon the jurisdiction that may have
been acquired by a seizure and upon the cause of that seizure.
A nation may, it is true, if it chooses to make its own will
stand for law — pro ratione voluntas — declare that it will not
permit a foreign court, in time of peace, to try the national
character of any vessel that bears its papers and wears its flag,
whether it bears the one and wears the other rightfully or
wrongfully. But this would be a mere exercise of assumed
superior physical force. It is not in accordance with sound
principle thus to throw the protection of a great and powerful
nation over any rover of the seas that may have irregularly
possessed itself of a register and wrongfully assumed a flag ;
nor is it in accordance with a proper respect for the courts of
the law of nations, which exist for the adjudication of all
causes of seizure which the law of nations recognizes. We
do not understand that the United States had previously
adopted any such attitude. The declaration made by the
American Senate in June, 1858, certainly does not go this
length. It includes, as under the national jurisdiction and
exempt from visitation, molestation, or detention on the high
seas, in time of peace, by a foreign power, " American vessels"
only ; vessels that are truly American, and not those which

14
fraudulently assume to be such. Nor would it be any in
fringement on the principle of this declaration — a principle
perfectly in accordance with the public law and denied by no
one — if a foreign court, after receiving a plea and claim of
national character, should look through the alleged title, and
try the question whether the vessel claiming that character
was entitled to wear it. The jurisdiction of the foreign court
to make this inquiry would depend upon the existence of a
justifiable cause of seizure ; a question that might turn on the
very fact that the vessel had no national character under
which it could with impunity (in respect to the law of nations)
do the act that led to the seizure. That such a question had
arisen in the case of the Virginius, will be apparent from the
following statement :
The Virginius was registered at New-York on the 26th of
September, 1870, as the property of an American citizen, who
made the oath required by law to his ownership. He failed,
however, to comply with the provision of law which required
a bond to be filed, signed by the owner, the captain, and one
or more sureties; there being no sureties on the bond
which was filed. Evidence was taken and submitted to the
American government by the Spanish Minister, which had a
very strong tendency to show that the nominal owner was not
the real owner, but that the vessel was the property of certain
Cuban leaders, who furnished the money for her purchase.
Upon both grounds, the fact of foreign ownership, and the de
fect in the bond, the Attorney-General of the United States
held that the alleged American character of the vessel was
vitiated ab initio. It is not necessary for our purposes to
settle the question of her actual ownership, either under a
paper title of any description, or under any secret trust. It is
enough, that before she left New- York her ostensible owner
had not obtained for her a lawful right to the character of an
American vessel, by filing the bond required by statute. She
did not acquire the national character of an American vessel,
by his registration, and her Cuban owners, if she was in fact
owned by Cubans, could give her no national, or quasi-national
character, for they were not acting under a belligerent power.
She was on the ocean, therefore, when she left New- York, and

15
down to the time of her seizure, without any real national
character whatever. The course of her history shows, more
over, that during the whole period of three years, she never
returned to the United States, and that if not owned, she was
wholly controlled by certain Cuban leaders. She sailed from
New- York in October, 1870, for the island of Curacoa, with
out any cargo, but with various kCuban leaders on board, who
joined her at sea from a lighter. Off the island of Curacoa, a
cargo of arms and munitions of war, brought from New- York
in the schoonerSBilly Butts, was put on board of her. At
Puerto Cabello, about the middle of November, Sheppard, the
captain who had brought her out from New- York, left her and
returned to New- York. At this time, she became temporarily
mixed up with one of the contending parties in the State of
Venezuela, while carrying the flag of Venezuela. Before this
occurred, one Marquez, chief -engineer, was made " paper-
captain," the real commander being a Cuban named Eloy
Camacho, who came out in her from New- York. After she
left these Venezuelan doings, she landed a military expedition
on the coast of Cuba. In April, 1872, she was at Aspin-
wall, under the command of one Bowen, an American,
who was commissioned to take charge of her by the Cuban
leader Quesada and his chief executive officer, who told
Bowen that she was to be used in landing military expeditions
on the Cuban coast. At this time she had no American flag
on board, and Bowen bought one himself. Bowen remained
in command for two or three months, and neither knew nor
recognized any ownership but that of the Cubans who
directed her movements. Bowen left her at Puerto Cabello,
and Captain Smith took command, having been engaged by
Quesada, as his predecessors had been. While Bowen was in
command, there was but one American flag on board, and
there were six of the insurgent Cuban flags. Under Smith
she cruised about, sometimes with Quesada on board. On the
11th of August, 1872, she was at Maracaibo. There Smith
left her on the 15th of November, 1872. Smith was succeed
ed as captain by Knight, the second engineer ; but the vessel
was navigated from Maracaibo to Curagoa by Alfaro, a Cuban.
Smith knew no one as owner but Quesada and Alfaro. After

16
Smith left her, we know but little of the details of her move
ments and operations, beyond the fact that she was still in the
employment of the Cuban insurgents. But from the' time of
her appearance at Kingston in October, 1873, where she came
to receive a military expedition that had been brought out
from New- York, her course can be distinctly traced.
In September, 1873, a "band of nearly one hundred men,
among whose names there was not one that did not indicate a
Cuban or Spanish origin, were gathered and drilled at a cer
tain rendezvous in the city of New- York. They were em
barked for Kingston on the steamer Atlas, without having
their names put on any passenger-list ; and before they left
New- York, they were told that at Kingston they would be put
on board the Virginius for Cuba. Several of the well-known
Cuban leaders who were afterward executed at Santiago de
Cuba, embarked with these men on the Atlas. At Kingston,
the men were put into barracks, and drilled as soldiers for
about two weeks. They were then put on board the Virginius,
which left Kingston on or about the 24th of October, having
also on board the Cuban leaders of the expedition, and another
band of men, about eighty in number, who had been separate
ly collected somewhere. From Kingston, the Virginius went
to Jeremie, a port on the southern side of the south-eastern
promontory of the island of Santo Domingo. She remained
at Jeremie twenty-four hours, when the local authorities
ordered her to leave. She then went to Port-au-Prince, where
she took in, during the night, a large quantity of arms and
ammunition, much more than enough to supply the forces on
board. She then steamed to Comito, and there took in more
military supplies, together with shoes and clothing for the men.
From Comito she arrived off Point Maisi, on the coast of Cuba.
Here some of the party wished to go to Punta Simones, to
get two guns that they said had been buried there. But Ryan,
one of the leaders afterward executed, objected that the ship
was leaking too badly, and that no time was to be lost. They
then sailed along the coast of Cuba, eastward, seeking for a
good landing-place. When they arrived off the headland of
Quantonomo, they prepared a party to go in boats and explore
for a landing-place. At this time the Virginius was about

17
six miles from the land, with the hills of Quantonomo in sight.
At one o'clock in the afternoon, before the landing party had
left the vessel, the Spanish cruiser Tornado eame in sight.
The Virginius immediately fled in a northerly direction to
ward Jamaica, chased by the Tornado. At nine o'clock in
the evening, the Tornado fired her first gun. Seeing that
escape was impossible, orders were issued to throw overboard
every thing that would indicate a military expedition. It was
a moonlight night, and with good night-glasses, the operation
of discharging, a large amount of something into the sea, might
have been seen from the Tornado. This operation having been
effectually accomplished, the Virginius surrendered, the Cuban
leaders on board supposing that the American papers of the
vessel, and the American flag, would be their protection.
What followed is well known.
These facts abundantly show that this vessel had no national
character at the time of her departure from New- York ; that
she had none at the time of her seizure by the Spanish cruiser,.
Tornado ; that when she was first sighted and chased, she was
on the coast of Cuba, for the purpose of landing a military
expedition to take part in an insurrection, as a vessel belonging
to or controlled by Spanish subjects, engaged in an effort to
promote that insurrection. But this is not all that marks her
true character. There is reason to believe that, from the first
and all along, she was intended by the Cubans who controlled
her to be used in the capture and confiscation of Spanish mer
chant-vessels and their cargoes on the high seas, at any favors-
able opportunity. Sheppard has sworn that such chances for
making money were held out to him by Mora and Quesada, as
inducements to becoming her captain ; and on the voyage to
Curacoa, having descried a merchant-vessel which was believed;
to be Spanish, Quesada proposed to Captain Sheppard to cap
ture her, and this scheme was abandoned only because the
vessel was found to be sailing under the Engtish flag. Smith
has sworn that, on the voyage from Puerto Cabello to Mara
caibo, Quesada proposed to him, through Alfaro, "to arm the
Virginius, and capture one of the Spanish mail-boats."
The statements of these witnesses, although sworn to in
an investigation conducted only between Spain and the United.
2

18
States, after the seizure of the Virginius, are not grossly impro
bable, when we consider the avowed object of her employ
ment. At all -events, Spain could have offered before a' court
of admiralty, or a court of arbitration, to prove that this vessel
was cruising with intent to depredate on Spanish commerce;
a fact which, if believed, would have put her in the predica
ment not only of transporting Spanish subjects to make a civil
war on the island of Cuba, but of making war upon every
thing Spanish. at sea which she might have dared to attack.
In this predicament, she would, to put the mildest test of her
condition, have just fallen short of the true character of a
pirate, because she was cruising against but one nation. But
the question to which all the circumstances attending her true
character, while it was perhaps without precedent, gave rise,
was one that ought to have undergone investigation in a court
of the law of nations, or at least in a court of arbitration.
Spain should have been allowed an opportunity to justify the
seizure. She desired and offered to submit her justification of
the seizure to arbitration. To this the United States answered,
through Mr. Fish, that " 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 the register
and papers of an American ship, is not deemed to be one
which is referable to other powers to determine.; that a nation
• .must be the judge and the custodian of its own honor," etc. This
/answer was made on the 21st of November. It kept up the
^assertion of the American character of the Virginius, when
that character was the very point of the question whether our
national flag had suffered any indignity, and when our govern
ment had the gravest reason to doubt the nationality of the
vessel. In such a case, we can see no solid reason for saying
that a nation must be the judge and custodian of its own
iiohor. We regret the answer.
While we can easily conceive of cases in which an affront to
-the national dignity ought not to be made a subject of arbitra
tion, we do not think that, the seizure of the Virginius pre
sented such a case. There was no reason whatever to suppose
that any indignity to our flag was intended. All that Spain
asked was, that the United States would not be so precipitant

19
as to require Spain to surrender a vessel whose right to wear
the American flag was in doubt, before that right had been .
ascertained. In such a case, there could be no derogation
from the national dignity in submitting to a suitable arbi
trator, to try the national character of the vessel. It was
entirely apparent that, if she was not entitled to the character
of an American vessel, we had no ground for complaint, so
far as the vessel herself was concerned. The United States
asserted her American character, when they knew that
it was extremely doubtful ; and they refused to Spain an
opportunity to show, to any friendly sovereign, that the seiz
ure was rightful because the vessel had no right to wear
the American flag,, and because she was wholly controlled by
Spanish subjects, who were fraudulently using that flag to
cover an expedition against the dominions of their own sove
reign. According to the view which we shall take of the seiz
ure, an arbitrator must-have decided not only that the Ame
rican flag had suffered no indignity, but that the right of
Spain to hold the vessel was unquestionable.
It -will be seen^that we have left untouched the question of
the actual ownership of this vessel. She can not be regarded
as a regularly documented American ship, engaged as a trans
port in carrying insurgent forces destined to incite a civil war
in Cuba. It is immaterial whether she was bought and
paid for with money furnished by the Cuban leaders, or by
what sort of paper title, or secret trust, they held or used her ;
for it is beyond question that they controlled her, and that she
was for years entirely and exclusively engaged in their service.
If the insurrectionary party in Cuba had been an acknow
ledged belligerent at the time of the seizure of the Virginius,
she would, notwithstanding any disguises or secret titles, have
been enemy property, by the mere fact of her employment in
the hands of Cubans. If such a case, under the same cir
cumstances, had been brought into an English or an American
prize court, Marshall or Stowell, Story or Lushington, or any
of the other great judges of modern times, accustomed to
administer the law of nations, would have stripped off every
rag of paper title, every shred of ownership, legal or equitable,
and would have gone straight to the fact that the vessel was

20
in the employment and control of the enemy. This fact would
have stamped her as enemy property, beyond all possibility of
a neutral claim. How thin, then, is the distinction' between
what a belligerent may do, when a vessel is thoroughly incor
porated into the service of his enemy, and what a nation at
peace ought to be permitted to do, in defending its dominions
against a vessel in the hands and employment of its own sub
jects !
All that we have now said is but introductory to the inter
esting and important question which we propose to discuss.
Of course that question is not whether Spain could assume to
enforce the neutrality or navigation laws of the United States.
She never assumed to do any thing of the kind ; notwith
standing the Attorney-General of the United States seems to
have supposed that she had assumed, by the seizure, jurisdic
tion over the question, whether the Virginius was engaged in
violating a law of the United- States. The enlightened per
sons who composed the Republican government of Spain at
the time of this occurrence, were perfectly well aware that
the offence committed by the reputed or real owners of this
vessel against the municipal law of the United States, was
one thing ; but that the right of Spain to seize and bring her
in and subject her to forfeiture, as a vessel either owned by
Spanish subjects or used by them to make incipient war upon
the dominions of Spain, was a totally different thing. The
President, in his message to Congress, referring, we presume,
to the municipal offence only, observed that " if her papers
were irregular or fraudulent, the offence was one against the
laws of the United States, justiciable only in their own tri
bunals." This is perfectly true, in regard to any offence
against the laws of the United- States. But quite beyond this,
and altogether independent of the authority of the United
States to punish for infractions of their own laws, lies the case
of a vessel owned or controlled by Spanish subjects, sailing
under color of papers to which they had no lawful right, and
making incipient war upon the Spanish dominion in Cuba.
Could such a vessel be seized by Spain on the ocean, be taken
in and condemned, without incurring any liability to the na
tion whose papers were thus abused ?

21
In considering this question, it is important to have clear
and accurate conceptions of the kind of jurisdiction which na
tions may exercise on the ocean, in time of peace. Notwith
standing the respectability of the names that may be cited for
it, the doctrine that the ships of a nation at sea are floating
fragments or extensions of its territorial jurisdiction, is not
correct. If it were, there could be no exercise of the bellige-'
rent right of visitation and search, in time of war, nor could
the goods of an enemy be taken from a neutral ship ; for the
state of war confers no right on either belligerent to pursue
his enemy into neutral territory, or to use therein any kind of
force, excepting in the case of an overwhelming and instant
necessity for the purpose of self-defence. Accurately speak
ing, the jurisdiction of a nation is of two kinds ; the one is
territorial, the other is personal. The territorial jurisdiction
is the right of sovereignty that is over the national dominions,
and that extends into the sea to the distance of cannon-shot
from the shore. The personal jurisdiction of a nation is that
which accompanies the persons and property of its members
wherever they are upon the globe, whether at sea or within
the dominion of another nation. It is the right which enables
a nation to extend its protection over the persons and pro
perty of its members, wherever they are, by requiring that
they shall be subjected to no injury, restraint, or forfeiture,
save what may be inflicted by public law, if they are on the
ocean, or by municipal law if they are within a foreign domi
nion. The regular ships of a nation at sea are within its per
sonal jurisdiction, and they are without its territorial jurisdic
tion. The flag that is over them is the emblem of the per
sonal jurisdiction ; but it is no emblem or sign of the territo
rial jurisdiction.
Although some of the older as well as some of the more
recent publicists have used language which implies or asserts
that the ships of a nation at sea are parts of its territory, it is
quite apparent that the examples which they adduce in proof
of the statement should be referred to the personal and not to
the territorial jurisdiction. Thus Vattel says that children
born in a vessel at sea, or in parts of the sea subject to a
foreign dominion, " may be reputed born in its territories ;

22
for it is natural to consider the vessels of a nation as parts of
its territory, especially when they sail upon a free sea, since
the state retains its jurisdiction over those vessels."* It is
obvious that Vattel here confounds the personal and the terri
torial jurisdictions. The reason why children born in a vessel
at sea are considered as born members of the nation to which
the vessel belongs, is not because they are born in the terri
tory of that nation ; for they are not so born, even by a fiction
of law ; but it is because they are born within the personal
jurisdiction of the nation, which extends over the floating
vehicle in which the birth occurs. But in order to make
such children members of the nation to which the vessel be
longs, the parents must also belong to that nation. The chil
dren of foreign parents born at sea in a vessel of another
nation take the national character of their parents, and not
that of the vessel. Judge Story expresses the rule thus :
" Children born upon the sea are deemed to belong [to] and
to have their domicil in the country to which their parents
belong ;" f and although he refers in a note to the passage of
Vattel above cited, he clearly does not mean to' rest the
national character of children born at sea upon the idea that
the vessel is a part of the territory, but he rests it on the per
sonal jurisdiction of the nation to which the parents belong,
which may be the same with, or different from, the jurisdic
tion over the vessel, according to circumstances. At the same
time, children of foreign parents born at sea are temporarily
under the protection of the nation to which the vessel regularly
belongs, because the personal jurisdiction of that nation ex
tends over the vessel and the persons who are on board.
Grotius makes the accurate distinction between the two
kinds of national jurisdiction (imperium) or lordship, as
Whewell translates him. " Lordship," he says, " has two kinds
of matter subject to it; primary, persons, which matter alone
sometimes suffices ; . . . and secondary, a place, which is
called a territory. "% This distinction he very properly applies
to the jurisdiction which a nation may acquire at sea, namely,
" as belonging to a person, or as belonging to a territory."
* Book i. ch. 19, § 216. f Conflict of Laws, § 48.
X Whe-well's Grotius, lib. 2, ch. 3,'§ 4.

23
He restricts the latter to that part of the sea itself which a
nation commands by its fleet, on its coasts ; and he does not
apply it to the scattered ships of the nation at sea, as if they
were parts of its territorial dominion.* Wheaton, although
he cites the opinion of Vattel that the vessels of a nation at
sea are parts of its territory, evidently does not adopt it. He
makes- the proper distinction between the territory of a nation
and its rights which do not depend upon territory, but which
follow its movable possessions; and he defines the right of a
nation at sea as " a mere temporary right of occupancy in a
place which is common to all mankind, to be successively used
as they have occasion."! In the case of The Marianna Flora,
Judge Story, speaking for the Supreme Court of the United
States, distinctly repelled the idea of a "territorial jurisdiction
on the ocean, like that which is claimed by all nations within
cannon-shot of their shores, in virtue of their general sove
reignty."^; It follows from the nature of the personal jurisdiction over
the vessels of a nation at sea, that this jurisdiction can right
fully attach only to vessels that are truly national ; and there
fore that in such a case as that of the Virginius, the United
States could assert no jurisdiction, excepting upon the assump
tion that she was an American vessel, which assumption was
contrary to the fact. Whether it was necessary to make this
assumption ; whether it ought to be made in every case where
there is a register on record in the name of an American citi
zen ; and whether, without regard to the fact of nationality, a
foreign government ought to be held responsible for what it
may have done, as if the fact of nationality existed — depends
upon the rights of that foreign government which are dis
placed by advancing such a claim. If it is true that national
jurisdiction over the persons and property of subjects exists51
for some purposes, wherever they are— and this is the real
basis of the relations between a national vessel at sea, and
the nation to which it belongs— it follows that a nation
which has subjects cruising at sea, in a vessel that is wholly

* Ibid. § 13. f Lawrence's Wheaton.
% Wheaton's Reports, vol. xi. p. 1, 43.

24
under their control, which has no national character,
and which those subjects are using to make incipient war
upon their sovereign, may have rights of prevention, which
depend not upon territorial but upon personal jurisdiction.
Whether those rights can be exercised on the ocean, or only
within the territory of the nation that needs to exercise them,
depends upon the character of the ocean, upon the practicability
of exercising on it a right of self-defence without interference
with the rights of others, and upon the solid reasons why such
a right of self-defence should be admitted rather than denied.
It does not advance such a question to just solution, to
refer to the general right of navigating the ocean unmolested.
What may be called the universality of the ocean, or the
common right of all nations to occupy it as a highway, is by
no means inconsistent with the right of any particular nation
to put in force on that highway the great law of self-defence.
We know, for example, that a pirate can be seized anywhere
on the ocean by the cruisers of any nation. It has sometimes
been said, we are aware, that the reason for this is, that pirates
are the enemies of all mankind ; that all nations are at war with
them at every moment, and therefore that the cruisers of any
nation may capture them anywhere out of the territorial juris
diction of any other nation. But this reason is rather more
fanciful than sound. There is no analogy between the legal
status of a pirate and the legal status of an enemy with whom
we are at war. The one is within, the other is without, the
pale of the law of nations. The one has rights, even against
the enemy who has a right to attack him ; the other has no
rights of which the public law takes the least cognizance.
The one may demand to be regularly captured, brought in for
adjudication, and to have the persons on board dealt with as
prisoners of war, according to the laws of war. The other
may be destroyed on the ocean without capture, without ad
judication, as we destroy wild beasts ; for although it is usual
with civilized states to bring in pirates and proceed against
them judicially, it is competent to any state to instruct its
cruisers to exterminate a pirate ship on the ocean with all on
board. The reason why this is not generally done is in order
to avoid the risk of destroying those who are not pirates,

25
thereby incurring responsibility to those whose vessel has been
mistaken for a pirate. Moreover, in a regular war between
enemies, there are neutrals, with certain large and acknow
ledged rights. In regard to pirates, there can be no neutrals,
and for this, as well as other reasons, it is incorrect to treat the
relation between pirates and the cruisers of all civilized states
as a relation of war. We must look for another principle as
the source of the right to seize or to destroy them. That
principle is the right of self-defence ; the right to protect our
own commerce and to defend our own people, on the great
highway of nations, against freebooters who are cruising with
felonious intent against the commerce and the people of every
nation on the globe.
When we seize or destroy a pirate, therefore, we do not
exercise a belligerent right, although in a certain sense we make
very effectual war upon him. When we adjudge his ship to
forfeiture and his life to the gallows, we do not execute the
laws of war. We exercise the right of self-defence against a
public and general robber, whose offence is a crime against the
law of nations ; and in exercising this right we enforce the law
of nations in a locality where it gives us the power to act in
defence of our own property and persons against the probable
or possible attacks of an outlaw who is under the ban of the
civilized world. In seizing or destroying a pirate on the
ocean, so far as we act in the interest of all nations, we may
be said to exercise a kind of police power over the ocean, which
is undoubtedly conceded by all civilized nations to each other ;
but the reason why this power is conceded by all in favor of all,
is, that each nation may protect its own commerce and people
against a public robber, by the natural law of self-defence.*
* That ancient and most respectable authority, Sir Leoline Jenkins, al
though he applies to pirates the expression hostes humani generis, evidently
does not mean to put them in the category of belligerent enemies. He calls
them enemies of all mankind because they prey indiscriminately upon all.
" This power and jurisdiction," he says, " which his majesty has at sea in
those remoter parts of the world, is but in concurrence with all other sove
reign princes that have ships and subjects at sea ; and it is on this special
regard that pirates are called hostes humani generis, in that, as they do give
themselves the liberty of making a prey without distinction of all nations,
and all manner of people ; and do, as much as in them lies, hinder that

26
The case of the pirate, therefore, shows that there may be
exceptions to the general right in time of peace of navigating
the ocean unmolested ; that there is a right of capture or rather
of seizure (since capture, is a word of technical meaning,
strictly applicable to belligerent seizures only), which may be
exercised on the open ocean, and upon the great right of self-
defence ; and the question is, whether the case of the pirate,
strictly so called, is the only exception to the general right of
freely occupying or navigating the ocean in time of peace.
The application of a right of seizure in the cases of slave-
traders, when such application was attempted in the absence
of treaties, proceeded upon the same general doctrine as the
right of seizing pirates; for in such cases, the seizure was
grounded on the assumption that the slave-trade was an offence
against the law of nations, analogous to the offence of piracy
in this, that the cruisers of any nation could seize a slave-
trader in the exercise of a right supposed to be common to all
nations to prevent a traffic in human flesh. Although the
offence of slave-trading, as a supposed offence against the law of

mutual amity and supplies, which Providence has ordained as the means to
cherish and preserve that humanity and sociablenes's which distinguishes
not only Christians, but all men, from savages and beasts of prey ; so all
nations and sovereign princes that meet with them have a just and compe
tent authority to execute the law upon them. " Does he mean the law of war 1
Clearly not, for that law would admit them to certain rights. He proceeds
in the same immediate context to say, " And they are therefore esteemed
to be put out of the protection of all princes, and of all laws ; because every
magistrate that bears the sword for the terror of those that do evil, is to
draw it against them, and is made a minister to execute justice upon them,
whenever they can lay hold of them." (Sir L. Jenkins's charge at the Old
Bailey.) What the worthy old judge means by the law which all nations
may execute upon pirates, is the law of self-defence against public robbers
and outlaws, and not the law of war. Mr. Wheaton rests the authority of
all nations to punish piracy upon the ground that it is a crime against the
law of nations. Tet how could it be punishable as a crime, if the seizure
and jurisdiction depended upon the idea of war ? (See Lawrence's Wheaton,
p. 209 ; Dana's Wheaton, p. 107.) We have followed in the text the
common definition of a pirate as an aggressor upon the rights of all nations,
because it answers the purposes of our illustration of the law of self-de
fence as well as any other. But see a learned and elaborate note by Mr.
Dana, on the definitions of piracy jure gentium, in his edition of Wheaton,
p. 193.

27
nations, was sometimes spoken of as piracy under the law of
nations, the analogy which it bore to " piracy" proper, was
simply, that the slave-trader might be deemed to violate the
rights of all mankind by the nature of his employment, be
cause he dealt in human beings, although in fact his trade was
confined to a particular race, the barbarous inhabitants of
Africa. We refer, however, to the case of the slave-trader in
this connection, not because it was ever supposed that it con
stituted a distinct exception to the general right of navigating
the ocean unmolested, but because it is obvious that if the
judges and jurisconsults who held that it was an offence pun
ishable under the law of nations had been right in that postu
late, it would necessarily have followed that the cruisers of
any nation could seize, and the courts of any nation could
punish for that offence, by an exercise of the right of self-
defence. Now, let it be observed here that in the case of the pirate,
strictly so called, there is necessarily no relation of allegiance
between him and the nation that undertakes to punish him.
The jurisdiction over him depends either for seizure or .for
punishment, not on the relation of subject and sovereign, but
on the right of self-defence against a general robber. But in
the kind of case we are considering, the personal relation of
sovereign and subject exists. The Cubans who were on board
the Virginius, and the vessel itself, as their property, or as
property thoroughly incorporated into their service, were sub
ject to the personal jurisdiction of Spain ; and subject to it on
the ocean just as much as within the territorial waters of the
island of Cuba. But it has been urged that this personal
jurisdiction, for the purposes of seizure, ought not to be
allowed practical exercise on the ocean, because it would
draw after it, in time of peace, an exercise of the belligerent
right of visitation and search, and so . become vexatious and
intolerable to other nations.
We have no occasion to dispute the principle that there is
no right of visitation and search, in time of peace, to be exer
cised for the purpose of ascertaining the national character of
vessels at sea, or the nature of their cargoes, or the objects of
the voyage, or the purposes of those on board. The right,

28
which is the subject of our present inquiry, if it exists, is
wholly independent of any right of visitation and search, such
as was involved in the controversy of thirty years ago, between
Great Britain and the United States, respecting the slave-
trade, or that which was asserted earlier in relation to the
impressment of British seamen from our vessels. We are here
dealing with the case of a vessel which had no national cha
racter whatever, and in regard to whose employment the
Spanish naval authorities had long been informed, before the
seizure was made. When they discovered her on the coast of
Cuba, they needed to make no visit and no search. Her
flight, and what he could see her throw over her sides, certified
to the commander of the Tornado that she was this very Vir
ginius for which he was watching.* He did not need to stop
her for the purpose of obtaining evidence. He' could seize
her on evidence obtained aliunde. Undoubtedly, he must
make the seizure at his peril ; at the peril of making his gov
ernment responsible, if the event proved that he had made a
mistake. But if the event proved that he had made no mis
take, the seizure, made without any visitation and search,
would be grounded on the right of a nation to avail itself of
the great law of self-defence, and would entail no responsi
bility to any other power. Holding this to be clear, upon
the facts of the case, we shall now adduce some other illus
trations of the very great prominence which the law of
nations assigns to the right of self-defence. These illustrations,
by enabling us to appreciate the modes in which that right
may be exercised, will help us to make a just application of
it to the case of the Virginius.
In the law of nations, there is an offence denominated
" piratical aggression." It is a distinct offence from piracy
proper ; for it may be committed sine animofurandi — without
any intent to plunder. It comprehends any tortious attack
by one vessel at sea upon another ; an act that is like private
unauthorized war upon the land. " Publicum bellum est, quod
auctore eo agitur, qui jurisdictionem habet; privatum, quod

* The commanding officer of the Spanish fleet had issued orders to take
her wherever found.

29
aliter.^ This succinct definition by Grotius informs us that
public war is that which is carried on by the authority of
some power that has jurisdiction to make war; and that
private war is that which is carried on without such authority.
When acts of private war are committed by one vessel at sea
upon another, the offence which the law of nations regards as
"piratical aggression," is perpetrated. This offence, when
committed by foreign vessels upon any vessel of the United
States, is expressly recognized in our Act of March 3d, 1819,
which was passed " to protect the commerce of the United
States, and punish the crime o'f piracy," under that clause of
the Constitution which authorizes Congress "to define and
punish piracies and felonies committed on the high seas, and
offences against the law of nations."
In the year 1821, the United States armed schooner Alliga
tor, commanded by Lieutenant Stockton, and a Portuguese
merchant vessel, named the Marianna Flora, mutually descried
each other at sea, at the distance of about nine miles. They
had approached within about four miles of each other, by the
converging courses on which they were respectively sailing, when
the Portuguese vessel showed a signal of distress. Lieutenant
Stockton immediately changed his course and approached
nearer. When the Alligator had come within long shot of the
Portuguese ship, the latter fired a cannon-shot ahead of the
Alligator, and exhibited the appearance and equipment of an
armed vessel. Lieutenant Stockton immediately hoisted the
United States flag and pendant. The Marianna Flora then
fired two more guns, one loaded with grape, the other with
round-shot, which passed over and beyond the Alligator.
Believing, from these acts, that he" had to deal with a pirate,
Lieutenant Stockton bore down, until he came within musket-
shot, the Marianna Flora continuing to fire. A broadside
from the Alligator silenced her. At this time, and not before,
the Portuguese vessel hoisted her national flag. Lieutenant
Stockton then ordered her to surrender, and send her boat on
board. The Portuguese master came on board the Alligator,
.and excused himself by saying that he did not know the latter
to be an American ship of war, but took her to be a piratical
cruiser. Lieutenant Stockton thereupon, without much exami-

30
nation of the papers or the voyage of the Portuguese ship, took
possession of her and sent her to the United States, to be pro
ceeded against for what he deemed a piratical aggression.
Here, then, there was no previous visitation and search to
ascertain the character of the vessel before ordering her to
surrender ; but as a Portuguese vessel, with the Portuguese
flag flying in her rigging, she was ordered to surrender on the
spot, for an alleged piratical aggression, that was supposed to
be punishable, as an offence against the law of nations, under
an Act of Congress, which authorized the cruisers of the
United States to seize foreign vessels when committing that
offence upon any vessel of the United States. When the
Portuguese vessel reached Boston, she was libeled for the
offence of piratical aggression, under the Act of Congress.
The case was carried up from the District to the Circuit
Court, where Judge Story permitted the libel to be amended
so as to charge a gross violation of the law of nations, on the
high seas, independent of the Act of Congress. In due course,
the case went to the Supreme Court of the United States,
where Judge Story himself pronounced the final decision,
which held that, the combat having arisen out of a mutual
mistake, there ought to be no forfeiture as for a piratical
aggression, either under the Act of Congress or under the
general law of nations. But the Portuguese claimants had in
the court below become actors, by demanding damages against
Lieutenant Stockton for an unjustifiable seizure, and for after
ward sending their vessel in for adjudication without reasonable
cause. This rendered it necessary to decide the rightfulness
of the seizure. Its rightfulness was fully affirmed. Judge
Story, speaking for the Court, held the general law to be, that
" for gross violations of the law of nations the penalty of con
fiscation may be properly inflicted upon the offending pro
perty ; . . . and a piratical aggression by an armed vessel
sailing under the regular flag of any nation, may be justly
subjected to the penalty of confiscation for such a gross breach
of the law of nations." Although he did not consider this to
be such a case, on account of the mutual mistake out of which
the combat arose, he said in the most unequivocal terms, that
when such an attack. " assumes the character of private un-

3L
authorized war," it " may be punished by all the penalties
which the law of nations can properly administer."
This case, it is true, was the case of an attack by one vessel
upon another, at sea. But let it be observed, that the whole
foundation of the right of seizure in such a case is the national
right of self-defence. The law of nations recognizes this
right, by authorizing force to be repelled by force, in such
cases ; and our Act of Congress, by authorizing a seizure in
the name of the nation, proceeds upon the right of the nation
to defend its own possessions. Now let us see whether the
same right is not to be extended to the defence of national
dominions ; and whether such defence may not be made Upon
the ocean, in the case of such a vessel as the Virginius.
One grand objection to the right of seizure at sea, in such
cases as we have described the Virginius to have been, has
been drawn from that untenable principle that a regular ship
of any nation is a floating part of its territory ; and hence it
has been said that to admit a right of seizure on the ocean, in
time, of peace, would expose the commerce of all other nations
to the exercise of rights that can not be distinguished from the
belligerent rights, and would lead to invasions of' national
territory. We need not here repeat the answer we have made
to the supposed territorial jurisdiction of a nation over its
vessels at sea. But even if we admit the correctness of that sup
position, it will be found that there is a very important excep
tion to the absolute [inviolability of national territory : an ex
ception that is grounded on the very law and necessity of self-
defence which we have here undertaken to develop.
In 1837, there occurred the most remarkable technical
violation of national territory that has happened in modern
times between nations capable of applying to such an occur
rence the proper rules of international law. We refer to the
case of the Caroline, of which the following are the precise
facts. There had been some tumultuous proceedings in Upper
Canada of an insurrectionary character, which were suppres- '
sed by the militia of the country. The persons concerned in
them fled into the State of New- York, and being there joined
by considerable numbers of American sympathizers, they in
vaded the territory of Cai^ada, took possession of Navy Island,

32
erected there a battery of twelve pieces of cannon, and began
to fire upon the inhabitants of the Canadian shore. No Ame
rican authority interfered, although there was an American
militia regiment stationed at the time on a neighboring Ame
rican island. The force assembled at -Navy Island had in their
pay and as part of their establishment, the steamboat
Caroline, which was used in hourly increasing their num
bers and arms. On the night of December 29th, an armed
expedition left the Canadian shore, for the purpose of captur
ing this vessel, which was expected to be found on Canadian
territory, at Navy Island. When the British officer came
round the point of that island, he discovered that the vessel
was moored to the American shore, at the town of Schlosser.
He thereupon crossed over to the American side of the river,
with his men, seized the vessel, and the strength of the current
not permitting her to be carried off by the means they had at
command, they set fire to her in the stream, and she was left
to be carried over the falls of Niagara* This act was publicly
avowed by the British government to have been done by na
tional authority as a necessary act of self-defence.
Nearly five years passed away, before any settlement of this
grievance was made between the United States and Great
Britain. But in the summer of 1842, Lord Ashburton came
to this country, as a special Minister, to settle all pending
controversies between the two countries which then admitted
of settlement ; Mr. Webster being the American Secretary of
State. This unredressed violation of national territory was
then an old sore, which needed to be healed by careful and
accurate surgery. All that was necessary to be done, how
ever, was to settle the principle that ought to be applied to it ;
and whatever was agreed to as the true principle between
such representatives of their respective nations as Lord Ash
burton and Mr. Webster, must needs be regarded as of great
authority'. Mr. Webster, before the arrival of Lord Ashbur-
• ton, had, in a note addressed to Mr. Fox, the resident British
* This brief statement of the facts is taken from Lord Ashburton's letter
to Mr. Webster of July 28th, 1842 ; which was not, as to these facts, contro
verted by Mr. Webster, and is therefore now to be taken as historically cor
rect. The account agrees with what was notorious at the time.

33
Minister at Washington (on the 24th April, 1841), laid down
the rule to which he intended to hold Great Britain, in regard
to this case of the Caroline. " It is admitted," he said, " that
a just right of self-defence attaches always to nations as well
as to individuals, and is equally necessary for the preservation
of both. Butthe extent of this right is to be judged of by
the circumstances of each particular case ; and when its al
leged exercise has led to the commission of hostile acts within
the territories of a power at peace, nothing less than a clear
and absolute necessity can afford ground of justification."
. . . . "Under these circumstances, and under those im
mediately connected with the transaction itself, it will be for
her Majesty's government to, show upon what state of facts
and what rules of national law the destruction of the Caro
line is to be defended. It will be for that government to show
a necessity of self-defence, instant, overwhelming, leaving no
choice of means, and no moment for deliberation." And
after having referred to some of the circumstances of the
transaction as he then viewed them, he ended by saying, " A
necessity for all this the government of the United States can
not believe to have existed."
After the arrival of Lord Ashburton, Mr. Webster opened
the discussion in regard to the case of the Caroline, by inclos
ing to his lordship a copy of his note to Mr. Fox, and by call
ing upon his lordship to show a justification for the violation
of the soil and territory of the United States, which he said
was equally a wrong, whether the employment in which the
Caroline was engaged was lawful or unlawful. The answer
of Lord Ashburton, which was written with consummate
ability, shows in the clearest manner, that he agreed substan
tially to the principle laid down by Mr. Webster, with regard
to the degree of necessity that must be shown for such an in
vasion of national territory ; and Mr. Webster's reply, which
closed and settled the whole controversy, shows with equal
clearness that he in his turn accepted the slight modifications
of that principle on which Lord Ashburton insisted. The
result of the discussion was, that the two governments were
agreed upon the principle that ought to be applied to the case,
and that they differed only upon the question whether the
3

34
facts alleged as a justification made out a case of necessary
self-defence such as the rule demanded. It is quite evident,
however, that Lord Ashburton's presentation of the case im
pressed Mr. Webster so much that he was willing to consider
the whole affair as reduced to a technical and unintentional
violation of the national territory, in respect to which a mere
expression of regret was all that was required.
Now, what was the rule, as laid down by Mr. Webster him
self, in regard to a very striking violation of the territory and
soil of a friendly nation? a violation of national rights and
dignity, that at least equals in gravity any supposable case of
seizure of a ship at sea. The rule, as stated by Mr. Webster,
is, " That while it is admitted that exceptions growing out of
the great law of self-defence do exist, those exceptions should
be confined to cases in which the necessity of that defence is
instant, overwhelming, and leaving no choice of means, and no
moment for deliberation." Let this rule be applied to the
Spanish seizure of the Virginius, with all the exactness that
is possible, but with due consideration of the locality and cir
cumstances of the seizure, and recollecting the fact that the
Virginius, without any national character of any sort, was
either owned or wholly controlled by Spanish subjects.
In the first place, the seizure was not made within the ter
ritorial limits of the United States ; nor did it in any manner
touch the territorial jurisdiction of the United States. It was
made on the ocean, where the law of nations prevails as the
law which governs the rights of all, and where the right of
self-defence against dangerous aggressions must sometimes be
exercised far more promptly than they can need to be on land.
It is an undoubted rule of public law, that in an aggression at
sea, taking the character of private unauthorized war, force
may be instantly repelled by force : and if this is so between
one vessel and another, the necessity of defending the domin
ions and sovereignty of a nation against a hostile aggression
may well extend to such a locality as the ocean all the rights
•of self-defence that belong to a nation. In such a locality,
there is no danger that the exercise of the national right of
self-defence will injure any individuals but those on' board the
>.offending vessel, as there is when that right is exercised on the

35
land within the territorial dominion of another nation, as ii?
was in the case of the Caroline.
In the next place, that the carrying of men and arms, de
signed to become part of an insurgent force, by a vessel
thoroughly incorporated into the service of insurgents, is an
act of private unauthorized war, in which the vessel is the
offending thing, is shown by the case of the Caroline. In the
Message on that case sent by President Tyler to Congress
(written by Mr. Webster), it was distinctly implied that the
owners of that vessel " may have violated the municipal laws
of the United States, or have disregarded their obligations
under the law of nations." " If," the Message continued, " it
shall appear that the owner of the Caroline was governed by
a hostile intent, or had made common cause with those who
were in the occupancy of Namy Island, then, so far as he is
concerned, there can be no claim to indemnity for the destruc
tion of his boat which this government would feel itself bound
to prosecute, since he would have acted not only in derogation
of the rights of Great Britain, but in clear violation of the
laws of the United States." Certainly Spain could not enforce
the neutrality or navigation laws of the United States ; but
she could enforce the law of nations on which those acts were
founded. For more than thirty-five years, the writer of this,
paper has been in the habit of hearing United States judges,
some of them men of great distinction and ability, charge
grand-juries on the subject of our neutrality acts ; and he has ,
never heard one such charge, in which the jury were not told
that those acts were passed to prevent and punish private un
authorized war, and that the offences denounced by those acts .
are some of the crimes of private unauthorized war, which are
alike prohibited by the law of nations. If our neutrality laws .
are less comprehensive than the law of nations, it does not fol
low that the latter is unable to reach a case which the former
may not include.
In the third place, this vessel (the Virginius) had long been an
object of suspicion and observation to the Spanish authorities,
and we regret to say does not appear to have been at all an
object of suspicion or observation to the government of the
United States. When the commander of the Tornado first de-

36
scried her on the coast of Cuba, he had no reason whatever from
her past history and her past relations with the American navy,
to expect that any American cruiser would even overhaul her
and turn her back, much less that she would be seized by any
American authority. What then was the Spanish commander
to do ? Was he to let her escape and take her chance of run
ning into Cuba somewhere, when he had lost sight of her ?
Was he to follow her until she got into Cuban waters before
he struck her ? What if she could have out-sailed hfm ? But
she did not allow the Spanish gunboat to follow her toward
Cuba. She turned and fled toward Jamaica. Was the Span
ish commander bound to let her take shelter in British waters,
whence she could again sally at the first opportunity ? Clearly
he was bound to wait for nothing, and to be assured of nothing
but that she was a " filibuster," which was indicated plainly
enough by her flight. In our opinion,\he was under a neces
sity to follow and to seize her ; a necessity springing from the
national right of defending the national territory ; a necessity
that was " instant, overwhelming, and leaving no choice of
means, and no moment for deliberation," in a far stronger
sense than was contended for by Lord Ashburton in the case
of the Caroline. To make out of this seizure a deliberate in
sult to the United States, even if the vessel had been ever so
felly entitled to wear the American flag, when she left her
home port — supposing she had a home port — is in our judg
ment simply absurd. American vessels that obtain lawful
registers, and a lawful right to sail under the flag, must take
care what kind of voyages they embark in. Neither register
nor flag will protect them from the consequences of violating
their international obligations, when they pass into the abso
lute control of foreigners for such purposes as those for which
the Virginius was used.
It will be seen therefore that 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

37
places of its exercise. In regard to these, we have only to say
that there is no greater inconvenience to be suffered by admit
ting that this right may be exercised on the ocean, than is
constantly suffered by neutrals from an exercise of the bellig
erent rights of nations at war. In fact, the inconvenience is
not nearly so great. In a time of war between any two mari
time nations, neutrals submit to all sorts of vexations arising
out of the right of visitation and search and the right of
blockade. Neutral ships must lie to, at the order of any bellig
erent cruiser, receive the visit of an officer, and subject their
papers, their cargoes, and every thing on board to his inspec
tion. The penalty of resistance is confiscation in a prize
court. What is it that prevents this from becoming an intol
erable nuisance ? It is the liability of the visiting cruiser to
damages for an improper seizure, or an unreasonable detention.
This is all the security that a neutral has ; for although it
shall have turned out that the voyage was innocent, it is not
every case of mistake that will be visited with damages, or
even with costs, under the law of prize. And are we to sub
mit to all this, in favor of the rights of belligerents to do to
each other all possible injury, and yet deny to nations at peace
the right to defend their own dominions against inroads by
sea, from vessels that are under the absolute control of their
own subjects, because those subjects have chosen to assume our
flag? If the responsibility of belligerents is a sufficient secu
rity for innocent commerce against the vexations incident to
visitation and search, and detentions and broken voyages, why
is not a corresponding liability, in time of peace, sufficient
security against unjustifiable seizures, in cases in which the
seizure does not need to be preceded by any exercise of a right
of visit or a right of search ? We are willing to go as far as
any one in asserting the immunities which a national flag
ought to be held to confer. We know how important to
individual safety and to national dignity those immunities are,
in their just extent. But we are not blind to the extrava
gance with which they are sometimes claimed for acts .which
the public law does not tolerate, and which it never intended
should be. sheltered by the sacredness of a flag.
It may, perhaps, be said that we submit as neutrals to the

38
inconvenience attending the exercise of belligerent rights on
the ocean, because the public law, long since settled, has
required positive acquiescence in those rights ; but that it has
not clearly and peremptorily required us to concede to other
nations the exercise of their right of self-defence on the ocean,
in time of peace. Perhaps this supposed distinction involves
a begging of the question. The law of nations, if not a pro
gressive system, in the sense of making new doctrines, is yet a
system of principles which admit of development and of
application to new cases. While it has no legislative origin,
like that which gives existence and force to the systems of
municipal law ; while it depends for its rules upon the general
consent of the great family of civilized states, and is evidenced
by the opinions of publicists and the practice of governments,
it yet has a body of principles that are universally acknow-
leged as true, and that are capable of application to new
cases as they arise. If a case arises that is apparently without
precedent, and it thus becomes necessary to ascertain whether
the law of nations will reach it, it is to be solved, not by an
arbitrary establishment of a new precedent, but by finding the
already established principles which are sufficient, under a
just application, to furnish the appropriate answer. In such
an investigation, it will be necessary to find' the full scope of
some principles by discovering the proper limitations of others ;
and out of the whole process of adjusting one rule by the lirni-
tations of another, to deduce the result of a correct decision.
It is thus that the law of nations expands to meet the exigen
cies of new cases, and to promote the peace and security of
mankind. It is thus that we have endeavored to show that
the right of self-defence, which the public law unquestionably
recognizes for nations, as the law of nature recognizes it for
individuals, may be exercised on the ocean, in such cases as
that of the Virginius, without impairing the rights of others.
It remains for us to notice an objection which has been
urged against the right of Spain to detain this vessel for
inquiry and condemnation. This objection may be put in the
language of General Sickles in his note of November 26th to
Senor de Carvajal : " There is no judicial tribunal in Cuba by
which the lawfulness of the capture can be determined. A

39
prize court can not have] jurisdiction of the case, since prize
courts exercise their powers only between belligerents, and
belligerents and neutrals, in time of war. War is not recog
nized as existing in Cuba, and Spain has been the foremost in
denying that either party to the conflict enjoys or is entitled
to enjoy belligerent rights." We take it for granted that
there is a court somewhere in the Spanish dominions, if not in
Cuba, which corresponds fully to the admiraltycourts of other
countries ; and of this General Sickles must have been per
fectly aware. But his point was, that in the absence of a
state of war, there could ,be no rightful adjudication in a
Spanish court of the rightfulness of the seizure, because that
adjudication could only take place in a prize court. But it is
plain that the Spanish Minister could have replied — and but
for the sudden turn in the negotiation he would have replied —
that the prize jurisdiction of courts of admiralty is by no
means the whole of their jurisdiction. At all times, in peace
as well as in war, they are courts of the law of nations, capa
ble of adjudicating any maritime seizure that is made, or
claims to have been made, under any right which that law
confers. Their jurisdiction over a foreign ship, which has
been seized for a cause for which the law of nations admits
that a seizure may be made, is just as unquestionable in a
time of peace as it is in a time of war. In the case of the
Marianna Flora, neither the District, nor the Circuit, nor the
Supreme Court, of the United States, sate as a prize court.
Each and all of them sate as Instance Courts of Admiralty, to
adjudicate the rightfulness of the seizure of a foreign ship,
that was beyond all controversy a national vessel of the
Portuguese nation, sailing under the Portuguese flag.
But, while we deem the seizure of this vessel entirely justi
fiable, it is, we trust, almost superfluous for us to say that we
have no words but words of the utmost condemnation, to
apply to the conduct of the local authorities at Santiago, in
putting to death a large part of the persons found on board,
without waiting to know how the case would be regarded
either at Washington or at Madrid. We consider it of no sort
of consequence whether the lives of any or all of those persons

40
were or were not already forfeited by Spanish law. What
ever may be the stern necessities under which governments
must administer their law of treason — when prisoners fall into
the hands of any government under such circumstances as
those attending the seizure of the Virginius, there arises a
moral obligation to hear all that can possibly be alleged in the
assertion of a right to be protected by the nation under whose
flag they are seized, if that nation shall choose to interfere.
The Virginius was sailing under the American flag and with
American papers. The local authorities at Santiago could
not possibly know that she was using that flag and those
papers fraudulently. It might so turn out ; in which case, the
United States might feel no motive for interfering, excepting
to secure the treaty rights of American citizens, and the
Cubans would have been left to be dealt with under the law
of their own country. Not a man should have been harmed,
until the question of the national character of the vessel had
been cleared up. It was quite otherwise, in regard to the seizure
of the vessel ; for she was seized under circumstances of the
strongest suspicion, a suspicion fully justified by the event,
and in the act of escaping after an attempt to land a military
expedition. There would be no moral or international obliga
tion violated, by preventing her from doing what she had
undertaken to do. But to put the persons found on board to
immediate death, in twenty-four hours after they were landed,
without waiting to learn whether the United States would
have any thing" to say about the seizure, was an act of
brutal haste, without even the excuse of military or political
necessity. It was this cruel act that led the government of
the United States to demand the extradition of a vessel for
which it had no just grounds to claim the protection of its
flag — a demand that, but. for this bloody tragedy, would
have had no national indignation to back it, and that could
never have been rightfully enforced.

YALE UNIVERSITY LIBRARY

3 9002 03266 1309