, 1873-12-13

SaA@A - ~ C0DNNlA ALLAA ' NDENl W W CI8u@Cu
in doing what was really a hostile act.
Even more than carrying contraband, it
was carrying officers of a high rank in the
rebellion, as near to the scene of armed
contest as possible. The crime was not
piracy, at least, according to the law of
nations, although possibly piracy by Span
ish law. 1t is to be observed, also, that
the vessel, although nominalIy American,
seems to have belonged to Cubans, and to
have been engaged uuo regular commerce..
Now, in such q case as THIS do the ordi-
nary laws respecting the right of visit and
capture apply 1t seems to US that this
IS an extreme case, which the ordinary law
OF nations does not meet, and that the
Spanish captain of the Tornado was put to
the nccess ty of making the capture for
the sake OF the peace of the Island. 1t was
a case of necessary self defense for proven
ting war. There is another case outside
of ordinary law by which this may be IL
Illustrated. The steamer Caroline, in 1897,
was employed by some Canadian insur-
gents to carry men and ammunition across
the Niagara river. This being discovered,
an expedition was prepared to capture and
destroy the vessel on the Canadian side,
but did not reach it until it had returned
into New York waters. There was great
Indignation felt at this proceeding, which
involved a violation of neutral territory,
besides other acts similar to those that oc-
cured in the case Of the Virginius. Ia the
correspondence to which this act gave rise,
Mr.. Webster said that such violation of
neutrality could be justified only by a ne
Cessity of self defense, instant, OVerWhelm-
ing, having no choice of means and no mo-
ment of deiiberation. Lord Ashburton
contended-this was in 1842-that such
a necessity existed, and regretted that no
explanation OF the act was made at
the time of its occurrence. Can any
one doubt that a strong natlon-that the
United States, for instance, would have
preferred to take the risk of acting IN an
Irregular way, rather than allow such an
expedition to come into it's territory. 1t
seems idle to try to Judge such cases by
ordinary rules. In the present Instance
the Spaniards could not say there was IN
slant, overwhelming necessity for seIt-de-
fence, but they could urge that they were
practically invaded by their WI insur-
gents, that it was necessary to seize the
vessel while they could, as otherwise the
instruction would assume new proper
tons; in short, that the violation Of neu-
traIity was necessary, and that the cir
cumstauces called for instant action.
Another case from which we can draw
illustrations is that of Kosta, who, having
already made the usual declarations prepa-
ratory to being naturaIized, was seized
in Smyrna, when, provided with a pass
port there by the American Consul, taken
by the boats crew of an Austrian frigatc
and put in irons. 1t was reported that he
was to be removed by the Austrian olfi-
ciaIs at Smyrna into Austria, and the Cap
tain of a public vessel Of the United States
prepared to resort to force unless he were
released. This led to his being put under
the protection Of the French Consul until
the Governments which were at issue
could agree. Now, would it have been in
accordance with international law to use
force in protecting him? Certainly not in
ordinary cases, but here was an eXtr9me
case. Turkey was passive and impotent
and could afford no protection. II kosta
had not have been helped at this moment
he could not have been helped at all. The
necessity justified, as it seemed to have
done in the case of the Virginius. Here,
let me ask, what have the Consuls OF the
limited States heen accustomed to do in