Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1873-12-23
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WAsHTNeToN, d. c., December II, 1873.
Hon. Hamilton Fish, Secretary of state:

| Is the opinion OF Attorney-CenerRl William
/ IN the Nirginius case,
DEPARTMENT OF tUsfIcR, ;
| WAsHINeTuN, b. G., December II, 1873.
Hon. Hamilton Fish, Secretary of state:
I SIR-I ha11 the honor tn acknowledge tho
! receipt OF your letter of the eleventh instant
! Submitting TO me a large number Of docu.
'ntnts and depositions, and asking for my
| opinion as TO whether or not the Nirginius al
| the time Of her capture by the spanish man.
| Of-war TornatO, Was entitled to carry the flag
| ef Jne United ktates, ana whether
properly and without right at the time
These questions arise under the protocol OF
! the twenty-ninth ultimU, between the Span
/ lSh minister and the secretary OF state, in
which. among other things, 1t is agreed that
on the twenty-hfth instant Spain shall salute
The flag of the United States. But IL is fur
ther provided that II Spain should prove to
the satisfaction Of the United States that The
Nirg Mus was not entitled TO carry the flag OF
the United states, and was carrying il at the
time OF her capture without right and i'm
properly, the salute Will be spontaneously
dispensed with, as in such case not being ne
ceSsarlly requlrabiei put the United states
viii expect in such case disclaimer of any
intent II an indignity to its dag in the act
which was committed.
Section Of the act Of Deeember 81, 1892, pro-
vides that ships or vessels registered pursuant
10 such act, and no other, except such as shall
be duly qualified according to law for carry
ing on a cOasting trade, and denomioated or
deemed ships or ves-e s Of The United states,
shall be entitled 10 the benefits and privileges
appertaining to such ships.
section OF the same act provides for an
oath, by which, among other things, TO obtain
the registry Of a vessel, the owner is required
to swear that there is not subject or citizen
Of any foreign prince or state directly or indi-
rectly, by way OF trust, confidence, or other
wise, interested in such ship or vessel or In the
pIOnIs or issues thereof. obviously, there
fore, no vessel in which foreigner is, directly
or Indirectly, interested, is entitled 10 United
states registry, and If one is obtained by false
oath az 10 that point, and the fact is that that
sessei is owned or partly owned by foreign
ers, she cannot be deemed vessel OF the
United states, or entitled 10 the benefits or
privileges appertaining to such vessels.
The Nlrginlus was registered in New \ ork
on the tweuty-siXth Of September, 1870, in the
name Of Patterson, who made oath as re
Quired by law, but the dispositions submitted
abundantly show that, in fact, Patterson was
not the owner at that time, but that the VeS-
sci was the property of certain Cuban citt-
Zens in New York, who furnished the neces-
sary funds Tor her purchase. J. e. shepherd,
who commanded said vessel when she LETT
New Ork with the certificate OF her register
in the name OF Patterson states positively that
he entered into an agreement to command
the said vessel at an interview between Que
sa Ia Mora, Patterson and others, at which il
was distinctly understood that the Vtrgl MUS
belonged 10 Quesada Mora and other Cubans,
and that the said Mora exhibited to him re-
ceipts for the purchase money, and for repairs
and supplies upon the said steamer, ana eX-
planned To him how the said funds were raised
among the Cubans in New FORK. Adolpho de
Ngrona who was secretary of the Cuban
mission in New York al the time the Virgin
ius was purchased, and afteward sailed in her
as Quesada's chief OF s.aff, tes,ihes that
he was acquainted with all the details Of ths
transaction, and knows that the Nirginius
was purchased with the funds Of Cubans, and
with the understanding and arrangement
that Patterson should appear as the nominal
owner, because foreigners could not obtain a
United states register for vessel. Francis
Bowen, Charles Smith, Edward Greenwood,
John McCann, Matt Murphy, A. Rawlings,
Thomas Gallagher, John Furlng, Thomss
Anderson and George W. Miller, were en-
plOyed uuOn the Nirglnius in various capaci-
lies. After she was registered in the name or
Patterson they testify clearly to the effect that
they were Informed and understood while
they were upon the vessel that she belonged
to QueSa1a and the Cubans represented by
him, and he navigated and controlled such
vessel in all respects as though il was his own
property. Nothing appears to weaken the
force Of this testimony, though the witnesses
were subjected 10 cross examination.
But, on the contrary, all ctrcum-
stances OF the case tend 70 It's corroboratlon
With the oath for registry the statute requires
q bond to be given, signed by the owner, cap
tam, and one or more sureties. But there
were no sureties upon the bond given by Pat
tersOn and Shepherd. Pains have been taken to
ascertain if there was any insurance upon
the vessel, but nothing OF the KIND has been
found, and Quesada, erOna and other Cubans
who took p ssage on the Nirginius, instead OF
going on board at the wharf in the usual way,
went aboard of a trg after the vessel mad LETT
the harbor of New York. l cannot
that Patterson 8 oath was false, and that the
register obtained in his name was a fraud
upon the navigation laws or the United
States. Assuming the question 70 be what
appears TO conform to the intent Of the proto-
col. whether the Nirginius, at the time OF her
capture, had the right, as against the United
states, 70 carry the American flag, am OF the
opinion that she had no such Iighti
because she had not been registered
according TO law but am also Of the opinion
that she was as much exempt from interfer-
emce on the high seas by another power, on
tn At ground, as though she had been lawfully
registered. Spain, no doubt, has right TO cap
Jufe a vessel with an American register and
carrying the American flag, found in her own
waters assisting, or endeaYoring TO assist, the
insurrection in Cuba. But she has no
right 10 captare such a vessel on the
that in violation OF the neutrality or naviga-
ton laws of the United States she was on her
way 10 assist such rebellion Spain may de-
fend her property and people from hostile
al tack OF what is or appears TO be an Ameri-
can vessel. But she has no jurisdiction what
sOever over the question as to whether or not
such vessel is on the high seas or OF the viola
ton Of any law OF the United States. Spain
cannot rightfully raise that question
as to the Nirginius, but the United states
may, and as I understand the protocol they
have agreed TO do it; and, governed by that
agreement, and without admitting thatSpain
would otherwise have any interest ia the
question, decide that the Nirgintus, at the
time OF her capture, was, without right and
improperly, carrying the American flag.
' . GEORGE H. WILLIAMS,