appears to have been made to the government of the United States as to her character or employment during the period in question.

On October 30, 1873, she sailed from Jamaica for Port Limon, in Costa Rica, carrying the American flag, and provided with regular clearance papers from the American consul at Kingston, Jamaica. On October 31, while on the high seas, about twenty miles distant from the island of Cuba, she was sighted and chased by the Spanish war steamer Tornado. After a pursuit of about eight hours she was captured on the high seas, at a point about sixty miles distant from the coast of Cuba, and twenty-three miles from the island of Jamaica, in which direction she was steaming at the time. She was boarded by an officer of the Tornado, her officers, crew, and passengers were made prisoners, and she was sent under a prize crew to the Spanish port of Santiago de Cuba, where she arrived on the evening of November 1.

At nine o'clock on the morning of the following day a courtmartial was convened for the trial of the captured persons, who were arraigned on a charge of piracy. The court-martial completed its labors at four o'clock in the afternoon of the same day. On the morning of November 4 four persons were executed, on the 7th twelve, on the 13th thirty-seven more, including a number of British subjects and citizens of the United States.

The attention of the Spanish Government was immediately drawn to the occurrence, and protests against the action of its subordinate officials were made by the American consuls at Havana and Santiago de Cuba, but with so little effect that, on November 14th, the United States minister to Spain was instructed to demand the restoration of the steamer, the return and delivery to the United States of the persons who had been captured, and the punishment of the officials who had been concerned in the capture of the vessel and the execution of her crew. He was also instructed to demand that the flag of the United States should be saluted in the harbor of Santiago de Cuba. After some correspondence between the two gov

ernments an agreement was entered into on November 29, between the Secretary of State and the Spanish minister in Washington, stipulating for the restoration of the vessel and the surrender of the survivors of the passengers and crew. It was also agreed that the flag of the United States should be saluted on the 25th day of December next ensuing. If, however, on or before that date, the Spanish government should prove that the Virginius was not entitled to her American register, the salute was to be spontaneously dispensed with; the United States agreeing to institute legal proceedings against the vessel, if it should be found that she had violated any law of the United States, and against any person who was shown to have been concerned in such violation.

The ship and survivors were surrendered at Santiago de Cuba on December 18, 1873; and it having been made to appear, to the satisfaction of the United States, that the Virginius was not entitled to carry its flag and papers, the Spanish minister was formally notified that the salute would be dispensed with.' The following conclusions seem to be warranted by the facts in the case:

(a.) The Virginius was not a pirate, whatever may have been the character of the transaction in which she was engaged, and the Spanish authorities acted without warrant of international law in proceeding against the crew and passengers for the crime of piracy.

(b.) The Spanish Government would have been justified in resisting any acts of war or hostility directed against itself and occurring within its territorial waters. It matters not with whom such acts or attempts originated, or by whom they were committed, whether subjects or aliens. Had the Virginius, therefore, been found in Spanish jurisdiction, engaged in landing, or attempting to land, her passengers upon the

1 III Dig. Int. Law, § 327; Parl. Pap. 1874, lxxvi. pp. 65, 85; Hall, pp. 263, 264, 271-274; Woolsey, § 214; Boyd's Wheaton, § 124d; For. Rel. U. S. 1876, pp. 488 – 490. Ship's papers and documents ac

64

companying property, under the law of nations, are but prima facie evidence of such property, and are of no force when shown to be fraudulent." - United States vs. the Amistad, 15 Peters, 518 [520].

coast of Cuba, her forcible seizure would have been justified. Had resistance been offered, that resistance could have been overcome by force at any cost of life or property. The treatment of those on board would then have been determined. according to the nature and degree of their offences, by the municipal laws of Spain. If the provisions of that system of law had been affected or modified by treaty stipulations, guaranteeing to the citizens or subjects of foreign states certain rights and privileges in the event of their being charged with crime while in Spanish jurisdiction, the government of Spain would have been responsible for the observance of the treaty in all cases to which its provisions applied.

(c.) The pursuit and capture of the vessel on the high seas was an act of very doubtful validity, and could only have been justified, in any event, by the extreme urgency of the case, and then only in the exercise of the right of self-defence. In this instance it is extremely doubtful whether such an emergency existed as to justify a resort to force in self-defence. The Virginius was flying the American flag when sighted, and had not then entered Spanish waters; until she did so enter them she was not subject to visitation and search, still less to pursuit and capture.'

(d.) The later conduct of the Spanish authorities in Cuba can only be characterized as unnecessary, not warranted by the emergency, and cruel and inhuman in the extreme. It was also contrary to the stipulations of treaties, and was grossly illegal even when judged by the standard of the municipal

law of Spain. The Virginius was an unarmed merchant vessel. She offered, and was capable of offering, no resistance to search or capture. Her passengers, at the instant of capture, were not armed or organized, and so were incapable of levying war against the authority of Spain, whatever may have been their ultimate intention. So soon as the passengers and crew were made prisoners they were absolutely powerless to do harm, and the fact that the ship sailed under the American flag should have suggested such reasonable delay in the proceedings against them as would have sufficed to enable proper representations to be made to that government as to the service in which its flag and papers were being used.

(e.) The action of the Spanish authorities in this matter would not have been justified or recognized as lawful had it been performed by a belligerent in time of war. Had a state of open war existed, and had the Virginius been captured at sea with enemy goods or contraband articles on board, the ship would not have been involved in the forfeiture, and her passengers and crew could not have been subjected to detention. Had she been captured in the act of violating a legal blockade, the ship and cargo alone would have been liable to forfeiture. Had she been engaged in carrying military persons to a hostile destination, her contraband passengers only could have been made prisoners of war. The crew could have incurred no penal consequences for their share in the transaction.

THE RIGHT OF VISITATION: IMPRESSMENT OF SEAMEN

The Right of Visitation. The belligerent right of search has never been seriously questioned, and is accepted by all nations as a fact inseparably connected with the existence of war. A right somewhat resembling it, called the right of visitation, has been asserted to exist in time of peace, but has never received universal sanction, and is now generally abandoned, save in a few cases, where it maintains a lingering existence by treaty. In the long controversy which was carried on as to the assumed legality of this right, during the early

part of the present century, England and the United States were the principal participants.

It was maintained, on the part of the British Government, that the rights of search and visitation were entirely distinct from each other, having a different origin and purpose. The right of search was peculiar to a state of war. The right of visitation existed in peace, and consisted in such an examination of merchant vessels, on the high seas, as was necessary to determine their nationality, the sufficiency and regularity of their papers, and the legality of the undertaking in which they were engaged.

On the part of the United States, it was contended that the right of search was an incident of belligerency; that it existed only during the continuance of war, and not only did not exist in time of peace, but an attempt to exercise it was an invasion of sovereignty which, if not disclaimed, would constitute a just cause for war. The controversy was brought to an end, in 1858, by a formal renunciation, on the part of the British Government, of the right of visitation in time of peace, except in cases where it was authorized by treaty stipulations. Of the justice and expediency of this abandonment there can be little question. The crimes of piracy and the slave-trade, the prevalence of which furnished the only reason for its existence, have practically disappeared. Its continued exercise, therefore, is unnecessary, giving rise to constant complaint and frequent international misunderstandings; nor can any good purpose be accomplished by it which could not be attained by the use of other and less questionable means. It lies within the power of every maritime state to establish and maintain such constant police supervision over its merchant marine as will prevent its register from being improperly used, and its flag from covering transactions which are not authorized by its municipal laws or sanctioned by the law of nations.'

1 II Halleck, pp. 268-283; Manning, pp. 456-464; Ortolan, liv. ii. chap. xi. pp. 253-256; III Phillimore, pp. 522-530; Dana's Whea

ton, §§ 106-109, notes 66, 67; V Calvo, § 2939, 2940, 2954, 29923003; Woolsey, §§ 219-221; Snow, p. 159; III Dig. Int. Law, § 327; the