Meanwhile the Spanish minister at Washington had proposed arbitration, but Mr. Fish declined to submit to arbitration the question of an indignity to the United States flag. The minister then asked for a delay, but Mr. Fish told him that delay was impossible in view of the approaching meeting of Congress. Unless settled beforehand the question would have to be referred to Congress. This firm stand brought the Spanish minister to time and on November 27 a proposition was submitted and accepted by Mr. Fish, by the terms of which Spain stipulated to restore the vessel forthwith, to surrender the survivors of her passengers and crew, and on the 25th of December to salute the flag of the United States. If, however, before that date Spain should prove to the satisfaction of the United States that the _Virginius_ was not entitled to carry the flag of the United States, the salute should be dispensed with, but in such case the United States would expect a disclaimer of intent of indignity to its flag. The Spanish envoy submitted to the state department a large number of documents and depositions to show that the _Virginius_ had no right to sail under the United States flag. These were referred to the attorney-general, and on December 17 he gave his opinion that the evidence was conclusive that the _Virginius_, although registered in New York on September 26, 1870, in the name of one Patterson, who made oath as required by law that he was the owner, was in fact the property of certain Cubans and was controlled by them. In conclusion the attorney-general said: Spain, no doubt, has a right to capture a vessel, with an American register, and carrying the American flag, found in her own waters assisting, or endeavoring to assist, the insurrection in Cuba, but she has no right to capture such a vessel on the high seas upon an apprehension that, in violation of the neutrality or navigation laws of the United States, she was on her way to assist said rebellion. Spain may defend her territory and people from the hostile attacks of what is, or appears to be, an American vessel; but she has no jurisdiction whatever over the question as to whether or not such vessel is on the high seas in violation of any law of the United States. Spain cannot rightfully raise that question as to the _Virginius_, 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 that Spain would otherwise have any interest in the question, I decide that the _Virginius_, at the time of her capture, was without right, and improperly carrying the American flag.[117]