The Sun.
London, England, 1858-04-23 00:00:00

ting acts of this nature was undisputed, and the question
of the guilt or innocence of all or any of those persons
then on board was, in our opinion, to all appearance in-
volved in so much doubt, that the captors could not be
fairly expected to liberate the ship and those on board
without further inquiry.
By the acts which had been committed by those on
board of the Cagliari, her Sardinian national character
had been lost or suspended, at all events whilst the wrong-
doers (whoever they might be) retained actual possession
and control of her ; and the circumstance that the master,
and those on board at the time of the capture, might ulti-
mately turn out to be innocent, would not, in our opinion,
render the capture illegal by international law.
We forbear from enlarging upon the serious B
'n om
time State, and to none more than Great la ,fr
conse-
quences which woald, in our opiaion result to every marl-
being held that nothing short of complete
tlheo mmr gal pocof its
t off
guilt or the actual commission of crime, a n o
capture, will j estify a national ship of war in capturing a
vessel under such circumstances as
I
asithof such a doctrine
seinwhichthe Cag-
liari was captured by the Tancredi. If
prevail, pirates need only obtain possession of a vessel
entitled to a flag and papers in order to secure perfect
the high seas, in place of being the secure
f nations, will become the asylum of wrong-
impunity
highway
o;
doers, and the flag and papers of any nation may ba wrong-
fully used to the irremediable injury of every other.
Great Britain can put forward no claim, and can make
no demand in this case which she is not prepared to con-
cede to Naples or to any other recognised Government,
however weak or barbarous ; and we are of opinion that
had the British, instead of the Neapolitan coast, been the
scene of the occurrences now in question, any British naval
officers, placed in the same position as the Neapolitan offi-
cer commanding the Tancredi, would not have exceeded
his duty or been guilty of an international offence by cap-
turing and bringing into port a vessel found under the
same circumstances as the Cagliari."
We are, therefore, of opinion that the capture of the
Cagliari was illegal.
We must, however, add that we are unable to see any
ground whatever upon which the condemnation of the
Cagliari as prize can be supported.
We have, &c.,
(Signed) J. D. FIARDING.
H. M. CAIRNS.

No. 3.
The Attorney-General to the Earl of Malmesbury.—
(Received April 19.)
Temple, April 17, 1858.
My Lord,—l was favoured with your lordship's com-
mands signified in Mr. Hammond's letter of the 25th
March ultimo, in which he stated that he was directed by
your lordship to transmit therewith the correspondence
respecting the capture, imprisonment, and trial by the
Neapolitan Government of two British subjects serving as
engineers on board the Sardinian merchant-steamer Cagli-
ari ; together with a copy of the indictment preferred
against them, and a volume entitled " Sulla Preda del
Cagliari," published by the Neapolitan Government, and
a further volume entitled " Difesa del Cagliari," published
by the owners of the vessel.
Mr. Hammond also stated that he was to request that I
would, together with the Queen's Advocate and the Soli-
citor-General, take the papers into consideration, and re-
port to your lordship my opinion whether the capture of
the Cagliari was legal.
In obedience to your lordship's commands, I have
taken the papers into consideration, and have the honour
to report—
That, lamenting the difference which exists between
myself and the other law officers of the Crown, my clear
and decided opinion is, that the capture of the Cagliari
was contrary to the law of nations.
Circumstances invest this case with extraordinary im-
portance, but it does not appear to me that they present
any peculiar difficulty as to the facts or as to the law upon
which the question now submitted arises.
The punted papers of the Neapolitan Government before
me are indeed voluminous ; but though they overlay, they
cannot effectually disguise, much less alter, the simplicity
of the issue to be determined.
It appears that in the case of the Cagliari the main facts
are undisputed ; and the proposition of international law
which ap lies to them is elementary, and has been hitherto
uncontroverted.

The main facts are-
1. That at tha time of the capture of the Cagliari, pa-
cific relations subsisted between Sardinia and the Two
Sicilies.
2. That the Cagliari was a private merehant-vessel, well
known to the captors as belongir“, on accountof her oc-
cupations, in a marked and speciai manner to the Com-
mercial Marine of Sardinia. _

3. That under force and duress she had been oompelled
to land convicts and rebels upon the Neapolitan coast.
4. That at the time of her capture she was neither de
facto nor de jure, piratic lly employed.
5. That she was seized upon the high seas, within no
territorial juris fiction, after a display of force, and the
menace of a shot fired at her by a ship of war belonging to

the Kingdom of the Two Sicilies. -
I have said that these facts are uncontroverted, and such
is in truth their character; but it may be well to notice
in this place a suggestion—it is scarcely more—than the
" Cagliari " voluntarily surrendered herself. It is in the
first place clear, that the international right of a State
cannot be abrogated by the act of an individual subject. But
in the second place, the notion of a voluntary surrender on
the part of a merchant vessel, because she obeyed the
orders of a ship of war which had fired at her and taken
her in tow, as in the present instance, by an armed boat, is
really unworthy of any serious comment. It is, to borrow
the expression of the late Secretary of State for Foreign
Affairs (page 68, No. 7i, of the papers laid before Parlia-
ment), a mockery.
Taking, then, these main facts as incontrovertible, and
practically uncontroverted, it remains to state the prinei-
plea of international law by which they are governed ; and
it is expedient to observe that no question arises as to
what might be the principles of this law. Whether they could
be precisely the same, or in any or what degree modified, or
wholly different., in the case of a vessel seized after a pur-
suit, beginning in territorial waters, and from which pur-
suit, so begun, the pursued vessel had escaped ; or in the
case of a vessel seized within territorial waters of the
captor.
Having reference, then, to the facts of the present case,
the propositions of international law applicable to them
appear to me the following :-
1. That the merchant vessels of every State on the high
seas are subject to the jurisdiction of the State to which
they belong.
" All nations," says Lord Stowell,* " being equal, all
have an equal right to the uninterrupted use of the unap-
propriated parts of the ocean for their navigation.
Li places where no local authority exists, where
the subjects of all States meet upon a footing of
entire equality and independence, no one State, or any of
its subjects, has a right to assume or exercise authority
over the subjects of another. I c•an find no ..uthority that
gives the right of interruption to the navigation of States
in amity upon the high seas, excepting that which the
rights of war give to both belligerents against neutrals."
•l. That the right of search is, as a general rule, strictly
belligerent in its character, and cannot be exercised in

time of peace.
3. That the only exception is the case of professed
pirates ; that exception being founded on the fact that
pirates are always enemies of every State, and, therefore,
are equally subject to the jurisdiction of every State.
4. That a rneichaut vessel regularly incorporated in the
marine of a State, does not become a pirate) by having been
itself forcibly se zed by pirates; nor does she, when having
escaped from pira. es, and forthwith returning to her law-
ful occupations from which, by force of arms, she had been
temporarily diverted, become liable to be seized as prize
upon the high seas.
5. That under circumstances of vehement suspicion of
piracy, the usage of States has allowed, though with the
most jealous reluctance, the right of approach, for the pur-
pose of ascertaining the national character of the vessel.
That if that character be clearly commercial—if the
State to which she belongs be undoubted—if her employ-
ment at the time of so ascertaining her nationality be law-
ful, then a suspicion of past unlawful conduct does nut
justify seizure in time of peace, but does justify applica-
tion for inquiry to the proper authority and jurisdictiou of
the State to which she belongs.
Tried by these tests, the forcible capture of the Cagliari
w:ts clearly 1.
If that capture was illegal, the jurisdiction of the Court
of the Two Siciliea was never founded ; the proceedings
before them were therefore null and void.
The argument that though the capture was illegal, the
jurisdiction over the ship, howsoever obtained, might be
well founded, appears to me to labaur under two capital
errors :
let. It builds the right of a State upon a wrongful act of
that State ; 2ndly. It confounds two distinct things —the
municipal relations of a Court to the Government of the
State to which it belongs, and the mutual international
relations of two States.
It remains to observe_upon the practice of States as well
as upon the law.
The practice appears to me to confirm the law in this
instance.
First, as to the Carlo Alberto, cited in the Neapolitan
proceedings.
The " Carlo Alberto," after having landed, on the
southern coast of France, the Duchess of Berry and
several of her adherents, with a view of exciting civil war
in that country, put into a French port ; but even, though
persons admitted to be conspirators were taken out of the
vessel, she being then in the French territoi y, and, unliee
the Cagliari, being originallyemployed upon a hostile if not
a piratical expedition, was, nevertheless, not condemned
by the French Courts, but was remitted to the jurisdiction
of her own country—Sardinia.
In the case decided in England, the Le Louis, where a
-French vessel had been seized by English cruisers for
carrying on the African slave trade after that trade
had been abolished by the internal laws cf.
France, and by the treaty between Great Britain
and France, the sentence condemning her a as reversed, and
Lord Stowell said, "It is pressed as a difficulty, what is
to be done if a French ship laden with slaves for a French
port is brought in ? I answer, without hesitation, restore
the possession which has been unlawfully divested ; re-
scind the illegal act done by your own subject, and leave
the foreigner to the justice of his own country."
The same law has been laid down by the United States.
In the case of the affaircontravention
British thteT itorial wirnai
ttliesBrh2,9,l,aaiwnn
tid
ecerdhe
oPuotr taurgmueeds e
vreesfsuegl
se riga,
; ursued by a British ship off Terceira, they were merely
prevented from landing on that island the armed force so
illegally collected in British waters; and no jurisdiction
was attempted to be exercised over the ships themselves
and even this amount of interference was considered le,e,
which I •
athaateleess of‘
high authorities a the time to have been an
am irresistibly led
poTwheer
coonntchluespioanrt, of
th eGrereroarte,Btroitawihn
the cap.
" Caglia" wcrals a
lonedeed boundillegal.
to afferd
any complaint which the
redress, if wrong has boon by their respective
tb:Brlehoth Sardinia and EnQ an
urge against ahem
em by
of their subjecitiasn;guauget t;frueseLo.trod.
sTuivbjoectlialine(3l entertainrutoaytiaveb
reason of the acts
swtaorudsell,thaat
he fo e
:nird
vleFy_e,ct
i nor
FITZROY KELLY.
tt the
e theiillegal
ej
guas iact
r ofe(Sla
odthnayietse bo
Ywr etnyfheoceruorrue subjects
brdYiti e.occ:"ta—si Ih a 61; ___ _ _ _
(Signed)

The following is a draft of Sir Jaares Hudson's letter
t i Count Cavuur of the 15th of January, 1858, as brought
to Englaud by Mr. Er,kine

Turin, Jan. 5,185 S.
Sir,—Her Majesty's Government having had under their
consideration the proceedings taken by the Neapolitan
Government in the case of the Cagliari steamer, with refe-
rence to the detention of two British subjects found on
board that vessel, I have been insti noted to" ask your Ex-
cellency whether the Sardinian Government mean to object,
Sze.—(see No. in, of Dec., 29, 1857)
I tract, therefore, that your Excellency will Lave the
goodness to state to me for the information of her Ma-