The Sun.
London, England, 1858-04-02 00:00:00

nil& SUN, LONDON FRIDAY EVENING,

therefore be dismissed as a chargn which the Court
regarded as not sustained upon the evidence before
it. The condemnation of the ship seams to hvae
proceeded on the ground that there was war de facto
between the ship and the Crown of the Two Sicilies.
Now war, according to Grotius, is not an act of
hostility, but it is the state and situation of those
who dispute by force of arms—' Ustis obtinet, ut non
actio, sed status eo nomine indicetur, ita ut sit bel-
l= Status per vim certantium, quo tales sunt.'—
Grotius de Bello et Pace, 1.1. c. 1. According to
the above definition it seems difficult to understand
how any of the doctrines of war can apply to the
seizure of the Cagliari. There was amity between
tne two Crowns, and there was no dispute by force
between the two vessels. The Cagliari submitted at
once upon being warned to bring to ;no r sistancc
was made by her master and crew, no act of a hos-
tile nature was committed by them against the
cruisers. As far, then, asthe conduct of the ma=ter
and crew of the Cagliari in immediate relation to
the cruisers is concerned everything., consists with a
state of peace. It was however, contended, on the
part of the seiz set that the outrages committed by
the revolters at Ponza and at Sapri constituted a
state of hostilities whereby the Cegliari became
lawful prize of war ; in other words, that the Ca-
gliari was infected with the guilt of the revolt, and
that the revolt had outgrown the proportions of an
insurrection to be put dawn tiy the civil authorities
aided by an armed force, and had acquired the ex-
tieme character of a civil war. Now, it is compe-
tent to every State which is imperilled by a revolt
to proclaim martial law. It may use its military
power to put down an armed insurrection too strong
to be controlled by the civil authority. It may fur-
ther, by declaring martial law, constitute a state of
war under which the sovereign authority may rei ert
;o the rights and usages of war to maintain it, if
and to overcome any unlawful opposition. ("Lutl..er
v. Borden," 7 Howard's Reports, p. 46.) But a
temporary disturbance of the peace of the country,
however violent it may be for the time, cannot be
subsequently invested by the judicial seatence of a
Court with the character of a state of war, so as to
reflect upon the property of the subjects of another
State seized on the high seas during the disturbance,
and to render it amenable to the grave cous?quences
which by the law of nations attaches to the prop- rty
of enemies captured on the high seas during war.
Vattel 1_ 111., c. 18, s. 292, makes the distinct on
between & civil war and a rebellion to consist in
the Let that in the former the mal-con-
tent have some reason to take up arms, while the
latter is a rising against the legitimate autho-
rity destitute of all appearance of justice.'
The Sovereign,' he remarks, does not fail to
call all his subjects who resist him, rebels, but
when they are strong enough to make head against
him so as to oblige him to make war against them
regularly he must resolve to endure the expression
" civil war."' Vattel proceeds further to remark
that 'in the case of civil war the common laws of
War are to be observed by both belligerents. If the
Sovereign considers himself entitled to hang his pri-
soners as rebels the opposite party will use repri-
sals.' It is unnecessary, however, to pursue this
suoject further. The Government of the Two Sicie
lies has decided to regard the revolt as an act of re-
hellion against the Staty, and to try the revolters
under the ordinary criminal law as guiliy of high
treason. They have included in the same criminal
proceedings the maser and crew of the Cagliari as
accessories to the attempt or the conspiracy to
change the Government of the country. The Pro-
curator-General of the King of the Two Sicilies en-
deaveured before the Commission of Prizo torecon-
cile the civil proceedings against the ship with the
criminal proceedings against the master and crew,
on the grounds that there was this distinction be-
tween a bellum mixtum and a bellum publicum,—
:hat when a bellum mixtum was brought to an end
the jus imperii to punish those who had ongagtd
in it revived, and might he exercised by the Sove-
reign ; whereas in a bellum publicam the return of
peace brings with it a general amnesty. It is obvi-
ous, however, that the jus imperil can only revert
to the Sovereign in relation to his own subjects.
The pis imperii can h ave no application to the
subjects of another State—against the latter the
righlis which were founded on the state of bellum
mixtum terminate with the occasion of them ; so
that if it could be maintained that at the conclusion
of a Nihon mixtum the Sovereign may enforce
against such of his prisoners as are his subjects and
owe him allegiance the penalties which are pr-
scribel by his municipal law for certain offences
committed in time of peace, which proposition, how-
ever, is totally inconsistent with the whole doctrine
of betiummixtuen as distinguished from civil tumu, t,
the theory of the revival of the jus imperii at the
termination of the war cannot be extended to
the master and crew of the Cagliari, who were
de jure subjects of the Sardinian Cr iwn, and were
not de facto within the allegiance of the King of
tbeTwo Siciliee. Upon the best consideration which
I have been able to give to this important question,
which involves in its simplest form sone intricacies
of law, but which has become inweLved in greater
intricacies by the legal proceedings oil the pert of
the Sicilian authorities subsequent to the seizure,
I am nrou4ht to the conclusion that the seizure and
detention of the Cagliari under the circumstance-%
stated in the log of the seizors was not justifiable
by the lawof nations, which is the only law whereby
the cruizers of a sovereign power can be entitled to
seize and detain on the high seas a merchant ship
sailing under the protection of the flag of another
sovereign. The right to demand the restitution of
the ship together with her master and crew on the
ground of the violation of the flag rests with th
sovereign whose flag has been violaeed. If ;he High
Criminal Court at Salerno, however, should con-
demn the master and crew under the 123 d section
of the penal law of the Two Sicilies, and the Sici-
lian Government should proceed to enforce the pe-
nalties of its municipal law against the crew of the
Cagliari, it will be competent at such time if any of
the crew should happen to be subjects of any other
foreign Power thin Sardinia, fo; that Power to in-
terfere in beh ilf of its subjects, on the ground that
the municipal law of the seizors cannot under the
circumstances of their seizure be rightfully enforced
against thsm. lam unwilling, however, to conclude
this expression of my opinion as to what I appre-
hend to be the strict lt.w applicable to the case of
the Cagliari without - alluding to a possible incon-
venience which may scene to result from such a con.
di, ion of the law, viz., that a State would be help-
less to (meek or punish outrages oil its coasts which
do not amount to piracy committed by vesels under
the mercantile flag of auether State if such vessels
can only escape in time on to the high seas before
the cruisers of the State fall in with them. The re-
medy, however, for such at, ationrelh which is in
practice more ideal than real, is found in the c mity
of nations, which tempers the law of nations, just as
equity tempers the apptc ation. of the rules of p :Si-
` lew civil trsesectieee. 'Flee stels -Le of the
flag, as already observed, is the privilege of the
S ate, and when there is ma/a fides intne wrong-
doers, the State, through courtesy, waives its pri-
vilege, and extends uo longer the aegis of its
nationality over its subjects, but either permits the
State which has been injured to avenge the breach
of its laws through its own tribunals, or will assist
it to obtain redress against the wrongdoer before
the Courts of their own country, if they have in
any way made themselves amenable to punish-
ment for a breach of their own laws.
" TRAVERS TWISS.
"Doctors'-commons, March 22."

invoked the application to these facts of the law In
force in the kingdom, which declared every vessel I
of a piratical character, or which had assistel the
enemies of the Crown to be good prize, and they I
contended that the Cagliari was liable to condem-
nation on both these grounds. Now, the crime of
piracy by the law of nations is a crime of a settled
and determined nature, and whatever may be the
diversity of definitions in other respects, all writers
on maritime law concur in holding that piracy, by
the law of nations, is robbery, or forcible depreda-
tion on the sea, committed ammo furandi. iPirata
depreedator est in maxi, et potest dici fur et latro
maris. Santorna, 1. 4 n. 50. Piratm sunt latrones
maritimi. Straccha. It is competent, indeed, for
any nation to declare any offence to be piracy, but,
although an offence may be declared to be piracy
by the municipal law of a State, it does not thereby
become piracy by the law of nations. A State, by
declaring an offence to be piracy, may authorise its
own tribunals to punish all offenders who may he
amenable to its municipal law, in the manner in
which pirates under the law of nations would be
punishable. The slave trade, for instance, has been
declared by some States to be piracy, but those
States can only enforce their municipal law in this
respect against their own subjects, and against the
subjects of other States with which they have trea-
ties to that effect. Although, therefore, the breach
of the sanitary laws of the Kingdom of the Two
Sicilies may be punishable as piracy under the
territorial law of the State, foreign vessels are only
amenable to that law while they are navigated in
Sicilian waters. In a similar manner the other
offences charged against the Cagliari maybe punish-
able as piracy under the special provisions of the
code of the Two Sicilies ; but the Cagliari was no
longer amenable to that code when she was once
more on the highway of nations ; neither could
she be rightfully seized thereon and reduced into
possession by the setzers, so as to be lawfully
brought by them before the Neapolitan tribunals
for a breach of that code. There is a certain class
of cases to be found in the reported judgments of
the English and the American Courts which may
seems at first sight to conflict with the position that
merchant ships cann.et be rightfully seized on the
high seas by a foreign cruiser for a breach of the
municipal law of the State to which the cruis,yr
belongs ; fur instance, the Statute Law of England
against boverers (24th of Geo. 111., cap. 47), and
the Statute Law of the 'United States of America
against the importation of slaves (Act of 1807),
authorize the national cruizers to seize all merchant
vessels which are found with ce, tain cargoes on
board, beyond the limits of the ordinary maritime
jurisdictien, and vesselssoseized have been brought
for adjudication before the tribunals of the seizors,
and sen ence of forfeiture has been pronounced
against them. Again, the same and other statutes
in matters of trade authorize the seizure of vessels
which have committed an act of forfeiture within
the territorial jurisdiction, although they may be
met with by the cruiser on the high seas. Such
laws, however, are only an authority to the
seizors before the tribunals of their own Sovereign,
but they are no authority to the State which has
enacted them against the Sovereign Power under
the protection of whose flag the vessel was sailing
on the high seas at the time of the seizure, if such
Sovereign Power should not acquiesce inher seizure,
and should demand her restitution. Mr. Jus ice
Story, iu the Marianna Flora (11 Wheaton's Re-
ports, p. 40), has pointed out that the State which
authorizes by her municipal laws her cruizers to
effect such seizuree, incurs a responsibility towards
foreign Powers in executing such laws ; in fact, it
is only under the comity of nations in matters of
trade that a State can venture to put such laws into
execution ; it exercises in such matters only a
permissive jurisdiction, and if any other State
should re monst: ate and resist their apPlice-
ti ,n, she must withdraw her claim to enforce such
laws. Lard Stowell, in the well-known slave case,
Le Louis' (2 Dodson p. 24G), alludes to an in-
stance of thiskind in the case of a Swedish ordinance
authorising Swedish cruisers to examine foreign
vessels on the high seas bound to Swedish portq,
which, however, was resisted by the British Go-
vernment as unlawful, and the claim was finally
withdrawn by the Swedes. In ordinary cases, in-
deed, where a merchant ship has been seized on the
high seas for a violation of the laws of another
State in matters of trade, the sovereign whose flag
has been violated waives his privilege, considering
the offending ship to have acted with mala fides to-
wards the other State with which he is in amity,
and to have consequently forfeited any just claim to
his protection. It is for the sovereign alone, not
for the individual whose ship has been seized, to
assert the inviolability of the flag, precisely as in
time of war, when an enemy's vessel has been cap-
tured in neutral waters,' the claim of neutral
privilege must be made by the State whose terri-
tory has been violated, and cannot be set up in bar
to the seizure by the owners of the ship. In the
present case the King of Sardinia, whose mercantile
tlag has been violated on the high seas, has asserted
the privilege of his flag, and has c'aimed the resti
tution of the vessel, considering that the transac-

lion does not disclose any case Ofmala fides towards
the Mit;ilian ELacu vu the Farb either vf k fro ownvre
or of the master and crow, and the King of the
Two Sicilies cannot set up the provisions of his own
law as an answer to a claim made under the law of
nations. The case of the Culo Alberto, in 1832,
cited by the Sicilian Crown la'wyers, conflicts in no
possible way with the above view of the law. The
Carlo Albeit.° was a Sardinian merchant ship, which
had been chartered at Leghorn by the Duchess de
Berri, with the ol,j--ct of effecting a landing of her-
self and her adherents on the coast of France. Toe
vesel left the port of Leghorn, having on the face
of her papers an ostensible destination to Barcelona,
and she succeeded in landing the Duchess and her
partisans near the port of Marseilles. The vessel,
thereupon put out to sea again, and left the French
waters, but was subsequently compelled by accident
to her boilers to put back into the roadstead of Ciot at,
and so placed herself again within the territorial
jurisdiction of the French Crown. Her master and
crew were thereupon se zed by the municipal offi-
cers of police and brought before a French tribunal,
on a charge of having violated the rnuoicipal law of
France. The Court at Aix entered them to be re-
leased, as le4ving been arrested in violation of the
law of nations ; but the Court of Caseation, upon
appeal, overruled the decree of the inferior court,
and condemned the master and crew for an offence
against the municipal law of Franc-, by taking
part in an enterprise against the security ofehe
State. No pre c ediegs were, however, instituted
against the ship as prize, and she appear; to have
been restored to her owners. It will be at once
seen that there is this notable distinction between
the Carlo Alberto and the Cagliari, that the crew
of the former vessel when seiz-d were within the
local jurisdiction of the State whose municipal law
they had violated, and the ordinary courts of the
country were accoolingly Lo.hipe'L,;ht w try them
for a breach of such law, whereas the C'agltari was
on the high seas when her master and crew fell
into the hands of theeeizore. The judgment, how-
ever, of the Commission of Prize at Naples did not
go all the way with the seizors. The Court ap-
pears to have condemned the ship, not as a pirati-
cal vessel, but as an enemy's ship; and it further
condemned a portion of her cargo as contraband of
war, decreeing the restitution of, the remainder of
her cargo to the owner of it. The Court applied to
the seizure of the Cagliari the considerations of law
which attach to captures made during time of war.
Assuming, than, from the moment, that the trans-
actions in which the ship was engaged at Ponza,
and Sapri bore the character of what has been
termed by publicists bellum mixtum, the master
and crew would no doubt be subject to the penalties
which the law of nations has sanctioned. But the
master and crew have been indicted before the
High Criminal Court at Salerno, not for any offence
against the law of nations, but for an offence against
the municipal law of the Two Sicilies. They are
charged with being accessories to ane act of
high treason committed by subjects of his
Sicilian M .jesty in an attempt to change the Go-
, vernrnent of the country, and a tribunal whose func-
tion it is to administer the municipal law is asked to
pronounce them liable to the penalties prescribed by
the 123 d section of the code of the Two Sicilies,
which says Emisfatto di less Maeata e punito
colla mode et col terzo grade-di publico esempio
Pattentato e la cospirazione the abbia per oggetto o
di distruggere o di cambiare it Govern°, o di ecci-
tare i sudditti o gli abitanti del regno at armarsi
con tro Pautorith, reale.' The penalties thus invoked
against the master and crew of the Cagliari are upon
the face of the Atto di Accusa penalties unknown
to the law of nations, the offence itself being that
of lmsre reajestatis,' an offence also unknown to
the law of nations. To return, however, to the
judgment of the Commission of Prize, it is perfectly
clear—to borrow the language (mutatis mutandis)
of Lord Stowell in his judgment on Le Louis, 2
Dodson, page 246—that the Cagliari could not he
deemed a pirate from any want of a national cha-
racter legally obtained. She was the property,
not of sea rovers, but of acknowledged Sardinian
subjects ; she had Sardinian ships' papers on board,
and was an acknowledged portion of the mercan-
tile marine of that country. If, therefore, the
character of pirate could be ireprestei upon her,
t must be only on the ground of her occupation.
Under the orders of her owners she wes bound with
passengers and cargo from G3lloa to Tunis, touch-
ing at Cagliari. Under the conduct of those on
board of her she was, as alleged on behalf of the
Crown of the Two Sicilies, instrumental to an act
of high treason against the Sicilian State. .N.,-ither
of these occupations can be legally de,med piracy,
so as to subject her to seizure wherever found as
hostis humani generis. The charge, indeed, of
piracy was not nciticad in the judgment.. It may