66 'It was finally found that the Virginius at the time of her capture was improperly carrying the American flag, and the salute was hence dispensed with. The Virginius was delivered over to the United States navy at Bahia Honda, but on her passage to New York sunk off Cape Fear in bad weather, being in an unseaworthy condition. The prisoners who survived the massacre were surrendered at Santiago and reached New York in safety, and an indemnity of $80,000 was paid for the relief of the families of persons who were American citizens. "The British Government demanded and obtained compensation for the families of the British subjects who were › executed. Their ground of complaint against the Spanish officials at Santiago was that after the capture of the people of the Virginius had been made there existed no emergency of self-defence, and that the offenders should have been prosecuted in proper form of law and regular proceedings of a civil nature should have been instituted. It was also maintained that had this been done it would have been found that 'there was no charge either known to the law of nations or to any international law under which persons in the situation of the British in the crew of the Virginius could have been properly condemned to death.' "The charge of piracy against those executed from the Virginius was without reason and their execution was without justifiable excuse. The Virginius was not fitted for offence or defence as a ship by reason of her equipment and also offered no resistance. At most, she was engaged in an illegal expedition and could have been seized within territorial waters of Spain or Cuba for that reason. It does not seem, however, that such a seizure would have been justifiable on the high seas, as the emergency for self-defence and self-protection was not sufficiently great or imminent. The result of landing a motley force of one hundred men on Cuban soil does not justify the arrest of a foreign vessel on the high seas in times of peace. The necessity for self-defence should be 'instant, overwhelming, and leaving no choice of means and no moment for deliberation.' So far as the question of the rightfulness of the Virginius to carry the flag was concerned, at the time of her arrest, this was not known. She was arrested as an American vessel; it was discovered at a later date only that she had no such right."1 63. Respect for the Dignity and Honor of the State.-A jealous regard for the dignity and honor of a state increases with the cultivation and refinement of its inhabitants and also with the increase and intimacy of its intercourse with the other civilized and enlightened nations of the world. A national insult to a country directly, or to its emblems, is not only resented by the officials of its government but by every patriotic citizen or subject at home or abroad. It is well that it should be so, for one of the strongest forces that compel an observance of the tenets of international law is that fear of censure from its fellows and of bad repute in the family of nations which now results from a deliberate violation of the law and comity of states. A sensitiveness as to honor and dignity is as important for the state as it is for the individual. As Woolsey says: "The Fijis or the Hottentots care little how the world regards them, but the opinion of civilized nations is highly valued by all those states which are now foremost in human affairs."2 It has been already stated that the rights of states carry with them corresponding obligations on the part of states with respect to each other. It becomes then a matter of obligation properly a subject for the municipal law of each state, that the citizens or subjects of each state shall be prevented from doing acts that would violate the dignity of foreign states, and punishment should be awarded to those who have transgressed in such matters. There must, however, be discrimination and care exercised in such matters so that punishment shall be 1 Stockton, "Naval Manual," pp. 92, 93, 94. 2 Woolsey, "Int. Law," 6th ed., p. 17. given or expected only when the dignity of a state is really violated. "Mere criticism," as Oppenheim says, "of policy, historical verdicts concerning the attitude of states and their rulers, utterances of moral indignation condemning immoral acts of foreign governments and their monarchs need neither be suppressed nor punished."1 The delicacy of international intercourse should require care on the part of the agents of one state in discussing matters and policies of other states, and documents reflecting upon foreign governments should always be preserved from undue publicity. Besides the courtesy extended by one state to the diplomatic agents of another, there are certain ceremonials that are in vogue between the armed forces of the states, especially as to the fortified ports and as to foreign vessels of war entering them as well as between vessels of war of different nations meeting in port or at sea. The courtesy extended by the way of salutes of flag, etc., between merchant vessels and men-ofwar of different states may be said to be entirely voluntary and depend entirely upon the courtesy of the merchantman concerned. It is in no sense obligatory. It no longer includes the striking of sails, the lowering of topsails, or the firing of guns. At most, it consists of lowering, or, as it is termed, dipping, the national colors a short distance and generally three times. This is answered in return in the same way by the man-of-war. As between men-of-war the arrangements are matters of international usages and regulation and consist of a mutual display of colors, a salute to the flag of the port or ship if it can be returned, salutes to officers of flag-rank, salutes to other foreign officials upon their visit to men-of-war, the parading of a guard, and the playing of national airs by the band of music of the vessel, etc. 1 Oppenheim, vol. I, p. 176. * "United States Navy Regulations of 1913," pp. 127R, 128R. TOPICS AND REFERENCES 1. The Succession of States and of the Sovereignty in Acquired Territory Hall, "International Law," 6th ed. (Atlay), 91-100. Moore's "Digest," I, chap. IV, secs. 92-99, etc. Scott's "Cases," 85-116. 2. Fundamental Rights and Duties of States Hershey, "Essentials," 143. Stockton, "Manual," 38. Law. rence's "Principles," 4th ed., 116, 117. 3. The Right of Independence and Legal Equality Oppenheim, 2d ed., vol. I, 168-174. Halleck, vol. I, Baker's 4th ed., 100-2. Wheaton, part II, chap. I, par. 12, 8th ed., 132. 4. Intervention Walker, "Manual," pars. 5-7. Wilson, "International Law," sec. 23. Woolsey, sec. 43. 5. The Right of Self-Preservation Hershey, "Essentials," 144, 145. Westlake, "International Law," 6. The Case of the Caroline on the Canadian Frontier Snow's "Cases," 177-8. Moore's "Digest," vols. II and VII, pars. 217 and 300. Westlake, "International Law," 300, etc. 7. The Case of the Capture of the Danish Fleet by Admiral NelsonRose, "Life of Napoleon," II, 129. Mahan's "Sea Power upon French Revolution," vol. II, 277. Lanfrey's "Napoleon," vol. XIV, 146-9. 8. The Case of the Virginius Moore's "Digest," vol. II, 895, 967, 980. Chadwick, "Relations of the United States and Spain," chaps. XVI and XVII.-H. Taylor, secs. 404, etc. 9. The Question of the Obligation of a State with Respect to the Dignity and Honor of Another State Hershey, "Essentials," 157, 158. Oppenheim, 174-7. Wheaton, sec. 160. 10. International Ceremonials Davis, 3d ed., 128-131. Halleck, I, 4th ed., 139-153. "U. S. CHAPTER VII TERRITORIAL JURISDICTION OF A STATE 64. Exclusive Jurisdiction over Its Own Territory. This is given as fourth among the fundamental rights of a sovereign state. It is an exclusive right of jurisdiction of a state, practically speaking, over all territory, things, and persons within its boundaries. It includes a jurisdiction over its citizens or subjects, of a certain limited nature, who are travelling or located in foreign countries. This jurisdiction of the state is also extended to include upon the high seas all of the private and public vessels legally carrying its flag. The extension of its rights of jurisdiction in time of war on the high seas and all conquered territory also exists and will be treated especially under the proper heads. There are some exceptions and immunities to these general rules which also will be discussed hereafter. Hall defines in more detail the territorial property of a state to consist "in the territory occupied by the state community and subjected to its sovereignty, and it comprises the whole area, whether of land or water, included within definite boundaries, ascertained by occupation, prescription, or treaty, together with such inhabited or uninhabited lands as are considered to have become attendant on the ascertained territory through occupation or accretion, and when such area abuts upon the sea, together with a certain margin of water." The question of the jurisdiction of a state over the air above it, is treated in a separate chapter upon aerial warfare. It may be considered that such a jurisdiction exists and is exercised. 1 Hall, 6th ed., Atlay, p. 101. |