The Sun.
London, England, 1858-04-10 00:00:00

DIPLOMATIC MISMANAGEMENT.

(From the _Mealy News.)
The opinion of the late Law Officers of the
Crown, as disclosed in the " Cagliari Correspon-
dence," are not creditable to the judicial research or
to the logical acuteness of their authors. Fortu-
nately for the character of English jurisprudence
abroad, it has not been exclusively represented by
Sir Richard Bothell, Sir Henry Keating, and Sir
John Harding. Dr. Philiiraore and Dr Twiss have
redeemed the credit of their profession and their
country. They have shown that the law of nations
is still competently studied and adequately ex-
pounded by the practitioners in that Court which
was once raised to the highest point of judicial re-
nown by the celebrated decisions
dofvoLcaotred_GSetreraelil:
Sir John Harding, as Queens
still retains his place as one of the legal
advisers of the Foreign-Office ; it does not, we
trust, follow, that he will retain his opinions.
Many matters of fact, which he was content to re-
gard as doubtful, have since been cleared up beyond
the possibility of dispute. Increased materials,
more minute inquiry, and more mature delibera-
tion, present an obvious and not ungraceful means
of wisely receding from an untenable position. The
successors of Sir Richard Bethell and Sir Henry
Keating have an easier task ; nor can we help feel-
ing some confidence that Sir Fitzroy Kelly and Sir
Hugh Cairns will advise Lord Malmesbury that the
capture of the Cagliari on the high seas was, under
all the circumstances of the case, a clear violation
of international law, and that, by an unavoidable
consequence, all that followed on such illegal capture
—the condemnation of the ship, the detention, im-
prisonment, and trial of the crew and engineers—
have been acts done in contravention of maritime
right.
It would, of course, be out of place in these
columns to enter upon the labyrinth of a legal argu-
ment, but one or two of the points involved in the
opinions of the late law officers admit of treatment
so comparatively simple that we shall readily be
excused in drawing attention to them. The first
material reference to the law officers upon the
legality of the seizure of the Cagliari was contained
in a despatch of the 17th of last December (No. 70
of the correspondence). The object of this commu-
nication is to ascertain how far certain statements
contained in papers sent with the despatch " would
bear Ler Majesty out in contending that the pro-
ceedings adopted towards Watt and Park have been
illegal, on the ground that the Cagliari was not
captured in Neapolitan waters." The papers re-
ferred to are (No. 66) an abstract of the depositions
of some of the crew of the Cagliari ; a chart
showing the position of the vessel when captured ;
and a letter from Mr. Yates Brown, our then
Consul at Genoa (No. 68), showing how he had
elicited the evidence; and stating a few addi-
tional facts. Assuming the correctness of the chart
and the truth of the depositions, two points were
clear beyond dispute on the face of these papers :
1. That the engineers had acted under compulsion ;
2. That the place where the vessel was captured
was on the high seas, and beyond the territorial
jurisdiction of Naples. With regard to the circum-
stances of the capture, the substance of the state-
ments was this,—that the captain announced his
intention of sailing for Naples, "to report what
had occurred ;" that he sailed in that direction ac-
cordingly, and was thither bound when the two
Neapolitan frigates came in sight ; that on seeing
them, he gave orders to take in sail and ease steam ;
and that, on one of the frigates firing a blank shot
at him, as a signal to heave to, he lowered his boat
and went aboard her. There he was detained ;
the Cagliari was boarded, and her papers examined;
after which she was seized and towed into port.
Such were the facts. _ _

Upon these facts Sir R. Bethell, Sir H. Keating,
and the Queen's Advocate-General are unanimous
in thinking that they do not constitute a case of
forcible capture, but of a voluntary surrender ; and
on this ground they arrive at the general conclusion
that the detention of the prisoners is legal, and
that the British Government can make no demand
for their release. Upon this extraordinary opinion
it is unnecessary now to offer any comment of our
own. In the first place it is inconsistent with the
ground taken by the Neapolitan Government
itself, which has throughout treated what took place
as a forcible capture, and on that ground condemned
the Cagliari as a prize. Both facts—the fact of
capture, and the fact that such capture took place ,
on the high seas—are so succinctly comprised in
the statement of Captain Rodriguez, the com-
mander of the Tanerecli frigate, by which the
Cagliari was taken, that it may be as well to cite
his words : "The capture of the Cagliari took
place on June 29, 1857, on the high seas, twelve
miles distant from and to the westward of the
Island of Capri." Such is the comment supplied
by the Neapolitan admisssions. The comment of
common sense has nowhere been more vigorously
expressed than by Mr. Hammond himself, the
Under-Secretary for Foreign Affai.s, who in his
very next communication, by direction of Lord
Clarendon, to the Law Officers (No. 77. Dec. 24,
1857), thus happily states the result of their unani-
mous opinion :—" To say that the captain and
crew of the Cagliari voluntarily gave themselves
up on the high seas to two Neapolitan frigates, who
had fired to bring the Cagliari to, and were pre-
pared to sink her if she did not surrender, is a
mockery and abuse of terms." We are quite con-
tent
to leave that portion of the opinion in which
all three of the Law Officers concurred to this very
just censure of the Foreign-office.
There is another portion of the opinion as to
which the Law Officers differed, which will require
a little more attentive consideration. The first
paragraph of Sir R. Bethell's opinion is in the fol-
lowing terms :—" The vessel and crew, having been
engaged in landing a body c f armed rebels on the
Neapolitan territory, might be lawfully pursued
and seized, and if the arrest took place within Nea-
politan waters the crew might be lawfully tried in
a Neapolitan court of justice. But if the capture
and arrest took place out of Neapolitan waters,
then, although the seizure was justifiable, the
Neapolitan tribunals would have no jurisdiction
to try, nor the King of Naples any authority to
punish, the persons arrested, who, being the
subjects of a friendly Power, must, on requi-
sition, be given up to that Power, in whose
courts the trial must be had and justice ad-
ministered. If, therefore," he addq, " it was
clear that the Cagliari was forcibly captured
when on. the high seas, out of Neapolitan waters,
the British Government might lawfully demand the
delivery up of the two engineers." From this por-
tion of Sir Richard Bethell's report his colleagues
dissent, "for," say
.they, "we are of opinion that
if the seizure was justifiable, under the circum-
stances stated, then the Neapolitan tribunals would
have jurisdiction to try, and the King of Naples
would have authority to punish, the persons arres-
ted." Now, it requires only a very elementary
knowledge of the first principles of maritime law to
sea that the confusion here arises from the ambigu-
ous meaning of the word "seizure." "Seizure"
may mean either one of two widely different things :
" arrest" or " capture." The " arrest" of the
Cagliari, under the circumstances, for the purposes
of examining her papers and ascertaining her
nationality, though on the high seas, was perfectly
lawful. The "capture of the Cagliari on the high
seas, after such examination, had shown that her
papers were regular, and that she was a vessel of
a fi iendly Power, sailing under her proper national
flag, was wholly unlawful. If the word "seizure"
is taken to mean "arrest," then it does not at all
follow that because the seizure was justifiable the
Neapolitan courts would have jurisdiction to try
or the King of Naples to punish, the persons so
arrested. Such a consequence would only follow
from the fact that her capture was lawful; in otlier
words, that she was rightfully seized either as a
pirate or as an enemy's ship. The Queen's Advo-
cate-General and Sir H. Keating subsequently
indeed
committed themselves (Report of January 1,
1858, No. 81) to what, after the opinions of Dr.
Phillimore, Dr. Twiss, and the Sardinian jurists,
must be called the untenable and exploded opinion
that the Neapolitan frigates had, under the circum-
stances, a right not only to arrest the t
oCagliari, but
also " to capture her beyond the territorial juris-
diction
committed fNaptlheias. extent. Sir
Rie
therehard hadße
t hel
beenl i sa not
cap-
ture of the Cagliari ontahee.highseas, he admits
wonlae
e .n 1 gaturl
r,i and that
t;
ele
that s
everythinguchcapture
done
in the detentionhv been
the prisoners would bare been without •
and that the British Government would havecb'eoenil
entitled to demand the restourtadotgioratnheeonfetotnohnceluptsrhiioesnontehras.t
the facts stated facts,
ri.ereroro jf
came
nll(i)te
nenrrtohrewlaaws
.an
adt.rderntohteiarmoowunntextpolicaitcaadnratuisrsei—onas
it is no longer competent even for
to
point ocno
nwtrhai
tcyh:
Neapolitantt.exvhat a contrastj u
rltsetsatllotihnissismtystification and am-
biguity is presented by the Report of the Sardinian
Commission of Inquiry. There is no confusion of
terms here. After admitting (No. 92) that the de-
tention of the Cagliari, her visitation, and the inter-
rogatory of her captain, crew, and passengers bythe
,
Neapolitan commander were, under the circum-
stances, necessary, and therefore jus;itiable, they
add :—" There and at that point the power of the
Neapolitan Government ought properly to have
ceased and determined. But instead of that," they
go on to observe, " the Rear-Admiral (Ruberti)
proceeded to treat the Cagliari as a lawful prize.
She was taken in tow by the Ettore Fieramoica
(the Tancredi's consort) ;
Arrived mat was detained
Cap+ Sit • d • d
on board the Tancredi
Cagliari was treated as prize, and hera_ captain and
atnhde
crew were imprisoned and subjected to a trial as
criminals, and subsequently the Cagliari was con-

demned by an Admiralty Court as lawful prize."
Under these circumstances the Sardinian Commis-
sioners report it as their opinion, "that if the act
of the Neapolitan Government, in overhauling the
Cagliari on the high seas, in visiting her,
in interrogating the captain, crew, and pas-
sengers, is justifiable, yet that the succeed-
ing act of her detention, and that of her
captain, crew, and passengers, is not, and
that such detention is contrary to the law of na-
tions." This is the same conclusion to which Dr.
Twiss and Dr. Philliniore have arrived—it is the
only conclusion, we firmly believe, to which an en-
lightened application of the rules of International
Law, which after all are nothing but the rules of
the most exalted good sense, could possibly lead a
competent, an unbiassed, and an earnest inquirer.
The arrest was justifiable—the capture was unlaw-
ful—the detention and the trial have been without
jurisdiction. Great Britain, which from the first
had a right to demand the instant surrender of the
two engineers, has now a further right, on which,
after the grossly insolent conduct of the Neapolitan
Government, her responsible Ministers are in duty
bound to insist. That right is a right to compensa-
tion for the prolonged and unwarrantable captivity
of these two innocent men. Let us trust that the
duty of ascertaining the international rights of Eng-
land may never again fall on such a triad of pub-
licists as Sir J. Harding, Sir It. Bethel], and Sir
H. Keating, nor the task of vindicating those rights
on such a Foreign Secretary as Lord Clarendon.

(From the Morning Herald.)

The release of Park by the Neapolitan Govern-
ment offers one more testimony to the activity and
energy displayed by the present Administration.
The doctrinaire liberalism of the late Government,
now happily defunct, had completely ignored the
personal interews of the two engineers in discus-
sions on legal quibbles, and the composition of
prose for the edification of diplomatic Europe.
The late Government, in the Cagliari case, acted like
the physicians of the fable; squabbling on theories,
the patients were dying before the solution of an
abstract question. Park and Watt were left to
rot in the dungeons of Salerno, while Lord Claren-
don was seeking inspiration for the elaboration of
a pedantic note. The engineers might die ; but
for the late Foreign Secretary their moans woro
trifling when compared with the honour accruing
to the establishment of some new principle—the
fellow, probably, to his dogma on belligerent
rights.

But the policy 'of the prevent Cabinet differs
widely from that of their predecessors. Not less
capable than the late Government to discuss the
complicated problems before them, their first step
was the practical one of obtaining the release of the
prisoners. A story is told of an ambassador of '
Elizabeth who was informed by his Sovereign that
a hundred French heads would fall to avenge the
loss of his. " Not one of those hundred would fit
my shoulders," was his sensible and practical
reply. The anecdote is not irrelevant to the
case of the engineers. It would have been but
small consolation to these unhappy men and their
friends that a slow and lingering death should ob-
tain a diplomatic triumph for a Whig Minister. It
was for Lord Malmesbury to discover the practical
bearings of the question, and to solve that question
in a practical manner. The first object to be gained
was the freedom of the prisoners. This secured, the
discussion of the legal question still remained as
affecting that of compensation. Such was the pro-
blem that lay before the English Government.
The manner in which it has been solved reflects
the greatest credit on the tact and perspicacity of
the Foreign Minister. The release of Park com-
pletes his major premiss. Whatever may betide,
the two engineers are again free men. The capture
of the Cagliari and the competence of Neapolitan
tribunals can no longer affect their health or con-
trol their will. With Lord Malmesbury the first
consideration was the safety of the men—the next
the legality of their previous capture. The first ob-
ject has been obtained. The second may now be
discussed at leisure and with due deliberation.
But in this the Ministers of the Crown will permit
no unnecessary delay. By this time the Govern-
ment will have probably received the opinion of
their law advisers. This must determine the course
to be pursued. If that opinion be adverse to a de-
mand for compensation, it would be, as we ob-
served some days since, an act of piracy to put
forward such a pretension. If, on the other hand,
it be clearly laid down that the two engineers have
been subjected not only to a painful but an illegal
imprisonment, the British Government will not
hesitate to take the necessary steps to obtain repa-
ration for the sufferings of their subjects, and vin-
dicate the honour and dignity of the British name.