The Press.
London, England, 1858-05-08 00:00:00

THE PRESS, MAY 8, 1858.

cable, its own maritime supremacy, is not exactly
consistent when it demands of a smaller State a
strict adherence to boundaries, and a careful
respect of the " high seas." We are confident
that if the scene had been laid in the Channel
instead of the Mediterranean, the united voice of
England would have echoed the opinion of the
two first-named jurists—that a British naval
officer would " not have exceeded his duty" by
acting as did the commander of the Tancredi ;
and that a Peel or a Keppel would have been
received with shouts of acclamation for an act
which in the case of the Neapolitan officer is
branded as cruel and illegal.

But there is one serious difference in the epoch,
so to speak, of the transaction, upon which the
two opinions are given. The Queen's Advocate
and Solicitor-General address themselves to
what is indeed in terms the only question sub-
mitted, " whether the capture of the Cagliari
" was legal." They intimate that the condemna-
tion as prize, upon which they conceive no formal
question to be asked, was unjustifiable; but they
point out that there were several circumstances
of suspicion shown which rendered that capture
imperative, inasmuch as the only alternative was
that of immediate liberation.

Now, the Attorney-General does not seem to
have directed his attention so much to the capture
per se, as to the whole proceedings : he treats
the transaction as one, and disavows a capture
with intent to inquiry—a sort of precautionary
possession not to be followed by condemnation—
as an unwarrantable hypothesis. He appears,
indeed, to get over by a sort of petitio principil
the circumstances detailed and considered by his
colleagues, and to arrive at the conclusion that
the subsequent conduct of the Neapolitan Go-
vernment is necessarily contemplated by the
officer making th© capture. Sir F. KELLY
assumes :

" 2. That the Cagliari was a private merchant-
vessel well known to the captors as belonging
. . . . to the commercial marine of Sardinia.

" 3. That under force and duress she had been
compelled, &c."
Now, upon this it may be remarked upon the
other side, " How were the Neapolitans to know
that the representation of the master as to the
words in italics were true ? Loaded arms were
discovered on board ; some ship's papers, and one
at least of the crew on the roll, were not to be
found, nor twenty-five of the passengers; and it
is alleged that she was not taking her direct
course to Naples (although upon this last point
there may be some doubt). Now, surely these
facts constitute grounds for not too hastily re-
ceiving the master's account as conclusive."
Sir F. KELLY goes on :
" 4. That at the time of her capture she was
neither de facto nor de jure piratically employed."
The chronology is here important. It is ad-
mitted on all hands that up to the night of the
28th shew as so employed—that_ two cruisers were
sent in pursuit, and that on the morning of the 29th
they fell in with her. The few hours of night form
rather a small margin to the apprehension of
a sailor ; and if a Russian merchant-ship were
seized by Norway pirates to commit devastation
at Hull or Grimsby, and was the very next
morning discovered by an English cruiser some
twenty or thirty miles out at sea, small, we trow,
would be the consideration of the blue-jacket as
to the actual complicity of the persons he found
in the peccant vessel. For one pound of
smuggled tobacco, by our fiscal laws, all the crew
suffer; and it would require the Attorney-
General's most finished oratory to explain to the
prejudiced mind of the bold lieutenant-com-
mander, that a " bottom" was indeed reckless
and piratical overnight, but had resumed its
commercial and guileless character by means of
a sort of nautical soda-water in the morning.
The old law doctrine of fresh pursuit by the
sheriff applies to sea as well as land ; and if it
can be fairly established that in hot haste the
cruisers came after the Cagliari, and caught her
within twelve miles of their coast, not indeed red-
hand, but a few short hours after the piratical
exploits, it does not seem a great stretch of autho-
rity to see her safe into Naples, whither (as
remarked by the two law officers) she represented
herself to be going at all events.
There can be no doubt, as laid down by Sir F.

KELLY, that merchant-ships on the high seas are
alone subject to their own State, nor that the
right of search, as it is called, is belligerent only
but the question is here whether the Cagliari au
demeaned herself as to be regarded as a merchant,
or whether she did not, until some tribunal
should have determined it, assume the character
of the exception admitted by Sir F. KELLY.
Equally incontrovertible is the position that, when
a merchant-vessel has escaped, and returned to
her lawful occupation, she is not to be dealt with
as a pirate ; but how is her pursuer to know this ?
And though she does not become liable to be
" seized as prize " (and in the insertion of these
two last words the whole difference between the
"Opinions" consists), she yet may be lawfully
detained under such pregnant circumstances of
suspicion until the innocence be shown.
The three instances cited by the Attorney-
General only show that a condemnation under
such circumstances is illegal. It does not appear
but that all parties were satisfied ; and i 1 upon
the demonstration of innocence by the crew in
this case, they also had been remitted to their
own State, the main difference between the two
opinions seems to fall to the ground.
We have dwelt longer upon these points than
usual. It is very material in the discussion now
before us, that the real question should not be
overlaid by confounding the end with the means.
If the Neapolitan Government had a right to
pursue this piratical vessel, and, having captured
her, to place the matter in due course for inquiry,
what is called the " capture" was not illegal.
In such case, if that taking ripened into a final
" capture as prize," by a condemnation obtained
by illegal and unfair means, then, and not before,
is the Neapolitan Government guilty of a viola-
tion of international law. But if a capture must
necessarily involve the cruisers, although they
had good ground at the time for making the
seizure, in all the consequences of a condemna-
tion—though the innocence of the vessel be de-
monstrated, and therefore no condemnation ensue
—then it will behove our men-of-war, particu-
larly on distant stations, diligently to look to
themselves, and to take care, lest upon what Sir
F. KELLY calls " a suspicion of past unlawful
" conduct," they unguardedly mistake the hum-
ble merchantman of to-day for the daring ruffian

of yesterday, and so involve our unlucky finances
in a second Chinese war.