The Daily state journal. [volume] (Alexandria, Va.) 1868-1874, 1873-11-24
THE CASE OF THE vIRGINIUs.

ported to have SAID, " that, II the Viz
ginius, though sailing under the United
States flag, was engaged in traffic prohib-
tied by the law of nations, then the United
States government cannot make the trans
action any ground for war, or, in fact, of
complaint" With all due Difference to
this eminent publicist, we mustsay that his
If is one Of no small magnitude in deter
mining not only the facts in the case, but
their application to the very rule he lays
down. The rule of international law to
which he refers, has its foundation in what
are called "belligerent rights" or the right
of one nation, when at war with another,
to interfere on the high seas with
the vessels of third power carrying
articles contraband of war to the enemy.
The flag protects the vessel, in all cases,
from search and seizure on the high seas
except where belligerent right, arising
out Of state of war, exists, to Justify the
seizure of vessels, conveying arms and
munitions of war, or troops to swell the
army Of the opposing belligerent. But
where there is no war, and no recognized
belligerent, no such right of search and
seizure exists. The Spanish government in
Cuba has persistently refused to recognize
the Cuban insurgents as belligerents, or to
accord them any belligerent rights what
ever nor has the United States or any
other leading government of the world SO
recognized them. At most, there are only
insurgent districts in Cuba, or rebels
to whom no belligerent rights are
accorded, either by Spain or this
country. Spain's right of search and
seizure, then, is limited to the force of her
municipal laws in Cuba, and is nec-
essarily confined to her own territorial
jurisdiction. 1t cannot extend beyond three
marine leagues, which limits the extent of
her municipal authority. To seize vessels
engaged in carrying arms, or other NUM-
tions Of war, to mere insurgents-to
those refused belligerent rights, or the
slightest war status-has no warrant in
international law. Such vessels must
come under territorial jurisdiction, and
be subject to municipal regulations only.
President Woolsey has not neglected to
consider this distinction in his own ele-
mentary work on international law, at
present the leading textbook in our
American colleges.
How absurd to take any other view Of
the case than this! Why, since the insur-
gent districts Of Cuba were first in arms,
our people have been constantly engaged in
furnishing gunboats and &unitions of war
to the Spanish government In Cuba, and no.
body has thought to complain of our action
in this respect. In fact, the greater number
of Spanish gunboats now in Cuban waters
were made in the United States, and their
armament obtained here. What law of
nations, or what principle ever laid down by
an international law writer, would justify
us in extending this aid to nation playing
the oppressor, and at the same time inhibit
all assistance to, or sympathy with, the op-
pressed? Such law would be hooted
out Of existence by the most savage tribes,
while such an international law writer would
be secuted down by the contempt of all
civilized peoples. The facts in the case are
substantially these The Virginius was a
merchant vessel, having an American reg
istrY, sailing under an American flag, with a
regular consular clearance, and, at the time
OF the Tornado's chase and seizure, was
upon the high seas. She was fully author
lied to go to sea by the American govern
ment, and to bear the national flag any,
where upon the common highway of ma
tons. IL the government was at fault in
snus granting her these high immunities, it
was alone responsible to the parties that
might show themselves aggrieved by its
action. The vessel itself, in every inch OF
its way upon the high seas, was under our
Jurisdiction, and virtually carried our soil
with it. If she, or her officers viola
lated any law, then, it was the
law of the United States, and not the mu-
nicipal regulations of the Spanish govern
ment in Cuba. 1t is not the right of
Spain nor of any other nation, however
potential, to inquire whether an American
vessel is lawfully sailing under our flag or
not. This is question for us 10 deter
mine, and so long as the vessel remains
upon the high seas, or under our jurisdic-
ton, it is exclusively question for us to
pass upon. We went to war, almost in
the infancy of our government, with one
of the most powerful nations of the earth
in vindication of this principle, and it is
preposterous to think Of our surrendering
it now to the pusillanimous strength OF
the Spanish authorities in Cuba.
tits clear, then, that Captain Fry had
the same right to transport arms and men
to the insurgents in Cuba that our ship
builders would have to contract for making
and delivering, on the insurgent coast of
Cuba, any one Of the thirty or moro gun
boats made and sold by US to the Spanish
government. Captain Fry simply ran the
risk of losing his vessel, and becoming
subject to Spanish laws, by being captured