The New York herald., 1873-11-26
DIR. WOOLSEY'S OPINIONS LEGALLY
DISSECTED.

and her crew are presented in tw0fOld aspect-the
justification OF the capture under the plea OF ne
cessty anj the justification Of the massacre by the
Independent rights Of Spanish sovereignty.
This order OF things is, however, inversed In the
treatment--a precedent borrowed, probably, from
the laws Of Spain. The crew is tried, convicted,
shot, then captured.
Starting vita the general rule that 'the inde-
pendence OF nations implies that they are the sole
judges, each OF them, as to what their laws and
punishments shall be-, he takes it for granted that
the prisoners received the full benefit of that su-
preme law, ana Immediately enters upon the dis
cussion as to whether civilized nations justified
by "a violation of national sovereignty" to ere
monstrate, and, II unheeded, take further steps,
This he is incapable OF deciding, not having sufi-
cent light upon the subject. Evidently the news
OF this horrible butchery has not yet reached the
quiet New England home OF the learned Doctor.
NOT LEGALLY TRIED UNDER SPANISH MUNICIPAL
LAW.
We must take issue with the implied premises in
the argument, and hold that the Captain and pas
sengers OF the Virginius were not legally tried and
convicted under the municipal laws OF Spain,
because
Ffrst-The tribunal was not legally constituted.
Spain being in state of peace, she had no power
to authorize the penalty OF death except by the
decision OF judicial tribunal founded upon sum-
cient evidence, with the proper opportunity OF
defence The crew OF the Virginius we're denied
this right and sentenced by "drum headn
court martial, and shot by Spanish volunteers,
and all this in time ofpeace. Spain was estopped
by her own acts and assertions from assuming
war powers She cannot purchase material
from a neutral State as right OF peace, and Then
deny that right In others as contraband OF war.
She cannot punish armed insurgents as traitors
rights OF blockade and search. Neither can she
assert to the world that she is In peace and then
defeno her acts or punish her criminals by the
tribunals OF war; Having elected peace, she must
abide by the rules OF peace.
Second-The Court If legally constituted, had no
jurisdiction over the crime OF Captain Fry, because
1t was not committed within the municipal terri.
tory or Jurisdiction of Spain, neither was piracy
j1re ge'stfuna-
is we'll recognized rule In all civilized nations
that jurisdiction cannot be gained by force
fraud, and 1t is admitted that the capture not
made either upon the land or waters or spain.
FOurut-The Courts OF Spain could not acquire
jurisdiction over either the person or the crime OF
the prisoner, because the offence was committed
on the open sea and not in Spanish vessel. All
authorities combine that the territory of the coun
try which the vessel belonged is the place OF Of
fence, and that the offenders must be tried
by the tribunals OF his country Pnillimore's
sw S se va sne Iaw NOT Of
American vessel 1t is admitted that she was not
Spanish. and her offence could not, therefore, be
punished by Spanish law or Spanish tribunal.
F1n'-It does not yet appear that Captain Fry
ever committed any crime for which he was amen
there was no aniDttlS Jurdndi. He was not
traitor, as he owed no allegiance to Spain. He
could not have broken her municipal laws, as ne
had never been within her municipal territory. he
could not be answerabe for the prior acts OF the
hwn as ne haa en n or r.
as there was no war. Upon the whole we shall be
happy to have DR.. Woolsey in his next public
address to the law class OF Yale College point out
some OF the legal crimes for which Captain Fry's
death penalty was justly rendered by the lnde-
pendent nationality OF Spain.
Si1th-The rule, as stated by the learned doctor,
that each nation is the sole judge OF its laws and
punishments, must be restricted to the citizens Of
that nation. AS to foreign citizens, municipal law
suborns to and is limited by the solemn compact of
treaties. 1t is admitted that Captain Fry was an
American citizen. Article OF the Treaty OF 1895,
between the United States and Spain, reads as fol-
lows
And it agreed that the subjects and citizens
be liable to any smbarsO dstsnon he part of the
p1asa 0p aS AND IN al ali or
detention, arrest for debts contracted offences
e
The citizens and subjects q both parties shall be
hsy s ~ @
free to be present at the proceedings in such
denee may be exhibited in the trial vol q.
S. Statutes at Large, p. l42
trial except for personal offences committed
within the jurisdiction OF Spain. Beth the capture
But even II the offence were committed within such
jurisdiction, and were, therefore, triable by the
courts OF Spain, the rights guaranteed by this sol
emn compact which, in the eye OF the law, Is
superior to all courts were denied to the
American citizens captured upon the virginus.
Granting, therefore, to Spain everything she
claims to the character OF the vrginius and the
acts OF her crew. she stands convicted by her own
records OF the wilful murder OF American citizens.
An illegal trial is no trial. and capital punishment
without trial is murder
THE CAPTURE ILLEGAL UNDER INTERNATIONAL LAW.
In defending the capture OF the Virgnus the
learned Doctor steps out INTO the broad principles
OF international law. But here he seems to ignore
power beyond and above International law. and
that is the law OF treaties. JtLre genttum is the
common law OF nations; treaties are the statute
law. The former governs only in the
absence and under the modification OF the latter
We must look first to our treaty, and here we find
that American ships and American citizens not
liable TO capture or detention by Spain except
within her jurisdiction. As it is admitted that the
crime, If any, was committed upon the open seas
the the capture was illegal SO far as
American citizens were concerned. If the vessel
was owned by Americans then the embargo and
detention of the vessel also Illegal and for the
purposes OF this act any vessel registered Amer
American nag and carrying American papers and
all the insignia OF American ownership, Is PRIME
American veSSe THe law lnputeS wrong
TO no one, and a false clearance is . fraud and
cannot be accepted by implication.
Judge story, In the case OF The Exchange q,
Cranch, 1,151), holds that "the commission OF
public ship, when duly authenticated, so far at
least as foreign courts are concerned, imports alb
solute verify and the title Is not examinableu
The reason OF the rule is that bearing the national
stamp OF ownership, the power that conferred
that insgnium Is the proper tribunal OF its
rights and abuses. This does not apply
TO an American merchant vessel in foreign port,
as she cannot there claim territorial jurisdiction
over her crew and passengers. "But,n says DR..
Philimore, In his excellent treatise on interna-
tional law, ''n one event the difference between
the mercantile and military marine does not
affect the question OF jurisdiction, that is when
navigating the open sea- The reason being the
same, the object-protection OF territorial juris-
diction--being the same, why is not the rule the
same ~ II So then admitting that the title TO the
Virginius was in the Cubans. the fact
tnat she was commanded by an American
citizen, that her insignia were American,
and ner ownership was perfect. SO far as Spain Is
concerned she Is an American vessel and her de.
tention on the open sea illegal and In violation OF
nnprS nata nsrts uko satn, Av,nr