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

THE CASE OF THE CAGLIARI.

The following opinion has been given in this
cm-, by Dr. Travers Twiss, the Vicar-Grneral
" Having been requested to advise the Sardinian
Government whether the documents submitted to
me diAclose any sufficient grounds for the seizure
and detention of the Sardinian ship Il Cagliari by
his Sicilian Majesty's steam cruisers, Il Tancredi
and L'Ettore Fieramosca, I have directed my atten-
tion cparticularly to the proceedings of the com-
mission of Maritime Prize at Naples, and to the

Act of Accusation preferred by his Majesty's Pro-
curator-General against the master and crew of
the Cagliari, before the High Criminal Court at
Salerno. The above-mentioned papers appear to
me, after a careful examination of all the docu-
ments, to furnish the most material data for form-
ing a correct notion of the legal character of the
transaction—as they disclose the cases formally
set up by the Sicilian authorities on the one hand,
against the ship, and on the other against her
master and crew. There can be no doubt, on the

face of these documents, that the Cagliari
was seized and detained by the Sicilian cruisers in
the strict sense assigned to those by the law of na-
tions. The log book of the Tancredi, which was
produced before the commission of prize, is con-
clusive evidence on this head against the seizors.
The entry of the 29th of June, 1857, is to the fol-
lowing effect :—`That at 8.45 a.m. the Taucredi
was about 12 miles to the westward of the Island
of Capri, cruising, in company with the Ettore
Fieramosca, which was about two miles astern of
her, when the Tancredi descried a vessel under
steam and sail, making a course from the waters of
Cape Licosa, which would carry her outside of the
most westerly headland of Capri. That the com-
mander of the Tancredi at once directed his vessel
towards the steamer, and at about half-past 9, per-
ceiving that she was edging away to the right, to-
wards the coast, he altered his course with a viewto
cut her off ; soon after which he made out that she
was a Genoese mercantile steamer, and from her
appearance, suspecting that she was the vessel which
he was ordered to arrest, at about lOso'clock, having
approached sufficiently near, he fired a shot across
her bows, and summoned her to obey his signal to
bring to.; that upon the steamer complying with
the summons by shutting off her steam and furling
her sails her captain was ordered to repairon board
the Tancredi with his papers ; meanwhile an armed
boat's crew in the Tancredi's launch was sent on
board the steamer to search her for munitions of
war ; that an opened case of 50 gun barrels, and a
case unopened, said to contain 50 double-barrelled
fowling-pieces, and some other loose small arms,
were found on board the Cagliari, and she was
shortly afterwards taken in tow as prize by the
Ettore Fieramosca, the captain of the Cagliari
being detained a prisoner on board the Tancredi.'
Such are the circumstances of the seizure narrated
in the log of the Tancredi. The reports made by the
commanders of the cruisers to their naval suileriers
at Naples, which were given in before the Court,
agreed with the statement in the log. There was
nothing in the depositions of Cept. Sitzia and two
of his crew which were read before the Court which
conflicted with the statement on the part of the
seizors as to the circurastancss and plac of the ssieure
Captain Si'zia's depositions, which seem to have
been made on interrogatories as in prize proceed-
ing, were chiefly explanatory of the events at
Ponza and at Sapri' and did n extend to any
matters subsequent to the departure of the vessel
from Sapri, excepting so far as he was asked why
he did not at once leave the port of Sapri and in-
form the authorities on the continent. His answer
was that his crew were c impelled to leave the
vessel, and that he could not put to sea with the
passengers only on board. It appears, however,
from the depositions of a physician named Msscaro,
who was a passenger on board the Cagliari, And
who was examined with the other passengers
before the magistrates at Naples, and whose state-
ment was confirmed by his companions, that the
master of the Cagliari on leaving Sapri hal told
them that he intended to proceed to Naples and
make his report, but the witness did not state
whether he understood that this report was in-
tended for the Sardinian Legation or the Neapo-
litan police. This evidence, however, was
not put in before the Commission of Prize, neither
was it admissible consistently with the rules of prize
proceedings, unless further proof had been allowed
by the Court to the owners of the ship. But the
circumstance of the captain's having announced
his intention, whether he spoke with good faith or
not, could not affect the legal character of the sei-
zure, either in favour of the owners or in favour of
the seizors with respect to the locality where it was
effected. It results, then, from the evidence bef ire
the Commission of Prize—and upon which evidence
the Court proceeded—that the cruisers were upon
the high seas when they first descried the Cagliari;
that the Cagliari herself was also at such time on
the high seas, steering a westerly course away from
the Neapolitan waters and in a direction to pass
outside the most westerly headland of Capri,
and that the seizure itself took place while the
Oa liari rrohe no,ll an tho high 00,00 Tho qua
tions which arise upon this state of facts are
confined within a narrow compass. The pursuit
commenced, and the seizure was effected upon the
high seas, which are nullius territorium, and with-
in which no State can claim to exercise jurisdiction
on the grounds of local sovereignty. A S-ate msy
enforce its municipal laws within its own territo-
rial waters rations foci against the mercantile
ships and crews of all nations, which on leaving the
open highway of the ocean sustain a new and
special relation to the sovereign whose waters they
have entered. But on the high seas a vessel is
subject to no laws but those of her own nation, of
which the general maritime law forms a part, being
common to all States. In this sense, indeed, a
ship has been sometimes said to be an extension of
the territory of the nation to which she belongs,
and the slightest application of the municipal law
of another nation to her may be resisted. The loca-
lity of the_se-zere of the Cagliari being thus on the
high seas, and the locus in quo giv;ng to a Sicilian
cruiser no absolute title to seize and detain a ves,el
under the mercantile flag of another nation, it wiil
he convenient to examine how the seizure aud de-
tention of the Cagliari might be justifiable ratione
personarum or rations delicti. A ship may be
lawfully seized on the high seas for a breach ef its own
municipal law, or fer ab! ear of the general
maritime law which is a portion of the 1 tw of nati n=.
It can only, however, be seized for a violation of its
own municipal law by the authority of its own
sovcreigo, who may either commit his authority
directly to the commander of a ship under his own
flag, or may communicate indirectly to the cruiser
of another State, under a treaty engagement with
the Sovereign oethat State. In the absence, how-
ever, of any such treaty-engagement rights of sove-
reignty can only he enforced against a merchant
ship on the high seas by a cruiser belonging to the
State under the protection of whose mercantile flag
the ship is sailing. The seizure of the Cagliari does
not come wishin the scope of either of the above
principles. She was sailing under the protection
of the Sardinian flag, whereas the nationality of the
seizors was Sicilian. On the other hand, there was
no treaty-engagement between the Sardinian and
Sicilian Crowns which would authorise the
seizure of a Sardinian vessel on the high seas
by a Sicilian cruiser for a breach of the muni-
cipal law of Sardinia. It may, however, be the case
that the seizure of the Cagliari by the Sicilianships
of war was justified by the general maritime law,
which the public cruisers of all nations are eutie led
to enforce against all private ships. A public vessel
is by the law of nations entitled to verify die flag of
a private vessel on the high seas, and no private
vessel is allowed by the law of nations to sail on
the high seas without proper documents on board
to establish her right to the flag which she carries.
This rule is totally independent of any special re-
-gulations of the State under whose flag she sails,
and if a public cruiser, on visiting a private ship on
the high seas, finds her unprovided with such ship's
documents as are required by the law of nations to
verify her flag, the cruiser may lawfully seize and
detain such vessel in the interest of the general
police of the seas. The owners of any such vessel
who may have sent her to sea without proper docu-
ments on board must abide the consequences re-
sulting from their own default. The Cagliari, how-
ever, was not amenable to seizure and detention
from any defect of her ship's documents. Her
ship's papers, according to the requirements of the
law of nations, wore regular and complete, and her
captain exhibited them without delay to the cora-
mender of the Tancredi. There being so far no
breach of the law of nations on the part of the
owners of the Cagliari in the mode in which they
sent the vessel to sea, if any culpability attached to
her sufficient to justify her seizure and detention it
must have arisen out of the mode in which she was
navigated—in other words, the master and crew
must have committed some breach of the law of
nations after they quitted the Sardinian waters.
The onus probandi on this head devolves upon the
seizors. The case set up by the seizors before their
own tribunals may be taken to be the best exposi-
tion of the grounds upon which they claim to sup-
portthe seizure. The ship appears to have been pro-
ceeded against
before the Commission of Prize at
Naples in the twofold character of pirate and of
enemy, by reason that she hed infringed the
sanitary res;ulasions of the Island of Ponza ;
that her crew had landed upon that island
and fought against the troops of his Sici-
lian Majesty; that certain fugitive felons and
other persons in rebellion against the Crown of the
Two Sicilies had disembarked from her at Sapri ;
and that she was on her way back to Ponza, to em-
bark other fugitive felons, when she was pursued
and captured by the Sicilian cruisers. The seizors