The Sun.
London, England, 1858-03-11 00:00:00

THE CASE OF THE CAGLIARI.

The following is the substance of an opinion de-
livered on this subject by Dr. Phillim.ore :
" At the outset I would observethatthere are two
facts the importance of the bearing of which upon
the law cannot be over-estimated, and which are
not controverted by the Government of the Two
Sicilies : 1. That the Cagliari was captured not in
Neapolitan waters, but upon the high seas. 2.
That in the first instance it was nevertheless repro
Rented by the Sicilian to the Sardinian Government
that the Cagliari had been captured within the Nea-
politan waters, and that the truth upon this sub-
ject was not discovered by the Sardinian Govern-
ment until they saw the evidence of the captors.
Upon this state of facts the question which imme-
diately arises is, under what circumstances is a State
justified in seizing the ship of another State while
passing on the common highway of all nations I The
answer is one upon which all jurists are agreed, and
as to which the practice and theory of States have
hitherto been in perfect harmony, viz.—in time of
peace, when the vessel is, or is reasonably suspected
to be a pirate ; in time of war, when a ship is, or
is reasonably suspected to be the property of a bel-
ligerent, orto be engaged in furthering the purposes
of a belligerent. To deal first with the question of
the capture of a piratical vessel in time of peace. As
to the definition and characteristics of a pirate there
is no material difference either in the opinion of
jurists or in tke municipal law of States. In sub-
stance a piratical vessel is one sailing without the
authority of any recognised State, not entitled to
carry a flag or ship's papers, the universally ac-
knowledged evidence of such authority, and, more-
over, so sailing animo furandi et depredandi. The
next inquiry is, does the Cagliari fall under this de-
finition, and if so, at what period ? No process of
reasoning, no number of printed folios, no accumu-
lation of pointless erudition, can bring the Cagliari,
at the time when she left Genoa, under the terms
of this definition. She was a Sardinian vessel
carrying a Sardinian flag, furnished with papers
abundantly a-efficient to satisfy the requisitions of
international, and also it should seem of Sardinian
law. She was prosecuting her usual voyage upon
her usual track ; she was, in fine, a well-known
Sardinian postal and passenger steamer. There is
not an iota of evidence to connect the proprietors of
the vessel with any intention of navigating their
vessel for an improper or unlawful purpose. The
next inquiry is :—Though the Cagliari left Genoa
an innocent merchant vessel, had a piratical charac-
ter, despitethe wishes of the owner, been impressed
upon her during the course of her voyage and if
so, under what circumstances ? The facts appear
to be simply these :—A considerable number of
' armed conspirators, who had embarked under the
guise of lawful passengers, did, after the vessel was
at sea, by acts of violence and threats of murder,
compel or terrify, it matters not which, the captain
into abdicating his authority, possessed themselves
of the entire control of the vessel, took her to
Ponza, filled her with additional conspirators, and,
changing her destination, made for Sapri. There
the conspirators had disembarked, the captain re-
gained his command, and immediately left Sapri
with the intention of proceeding to Naples, and of
reporting what had happened to the Government
there. While prosecuting this voyage, and at no
great distance from his destination, he is fired at by
a Sicilian ship of war, ordered to bring to, and
immediately obeying without resistance is
taken into Naples. Was, then, the Cagliari
at the time of her capture piratically employed ?—I
say unquestionably not. The assertion to the con-
trary rests upon a suspicion—unsupported, as far
as 1 can find, either by oral or documentary evi-
dence—that she was returning to Ponza for the
purpose of bringing fresh conspirators to Sapri.
But against this vague suspicion are to be set the
oath of the captain, the proved fact of the previous
violence which he bad undergone, and from which
he had just escaped, the consistency of his whole
story, and the previous history and character of the
commercial vessel which he commanded. Let it be
admitted for the sake of argument (though the
question is one which was recently much contro-
verted between Great Britain and the United States
of North America) that under the circumstances
the Sicilian ship of war had a right to visit (a right,
be it observed, distinct from the right of search)
upon the high seas theCagliari in time of peace, for
the purpose, and for the purpose only, of ascertain-
ing her nationality. I say without hesitation that
as soon as that nationality was ascertained to be
bona fide Sardinian (as it must immediately on
boarding have been ascertained), not merely from
her flag and papers, but from the well-known his-
tory and character of the vessel herself, that the
limited and doubtful authority of the Sicilian ship
was certainly and clearly at an end. The rights
of visit' and ' detention' are rights of war. Sar-
dinia and the Two Sicilies were not at war. If it
was supposed that there was ground of complaint
against the Cagliari, it was manifest upon every
principle of international law that this vessel so
arrested in time of peace upon the high seas should
have been allowed to continue her course ; and the
complaint should have been urged to the Sardinian
Government, or before the courts by which she
was alone justiciable—namely, the courts of the
amicable and, be it also observed, closely neigh
bouringPower, to the subjects of which the Cagliari
was well known to appertain. Before I turn from
this part of the subject I should notice an objection
which has been taken with respect to the alleged in-
sufficiency of the papers on board the Cagliari. Upon
this point a very great error as to the requisitions of
international law is maintained in the Sicilian
statement. It is no part of tee duty, or of the right
of foreign States to inquire into the question whe-
ther the vessel of another State does or does not
carry all the papers which the municipal law of her
own country requires. If there be a sufficient con-
stat of the nationality of the vessel the foreign na-
tion has no right to inquire further. It does, how-
ever, so happen that in this case the Cagliari had
on board the Patents, the having which was suffi-
cient to supply, the demands of her own municipal
law. And here it is, perhaps, not inopportune to
remark that during the recent war with Russia the
Prize Courts of Great Britain constantly refused to
condemn, even as prize, a vessel lawfully captured
upon the high seas, upon the ground that she del
not carry all the papers required by the municipal
law of her own country. The proposition put forth
by the Admiralty Board of the Two Sicilies, namely i
Esso mancava dells carte necessarie di bordo,
pel difetto dells qualificato pirata,' and which being
interpreted with reference to the circumstances of
the case, means, that because all the papers which
her municipal law might require were not on board
the Cagliari she was therefore a pirate, is a novel
proposition and fraught with danger to all com-
mercial States. It is quite clear, therefore, that
neither at the time whea the Cagliari left
Genoa, nor at the time when she was seized, was
she, in fact, in intention, or destination, piratically
employed. Indeed, it is not difficult to perceive that
the Sicilian Government are aware that this allega-
tion of piracy cannot be sustained, for upon a fore-
sight of its failure they advance another proposition,
and one which I will venture to say is on the face of
it plainly at variance with the first principles and
acknowledged practice of international law. That
proposition is, that if the Cagliari was not herself a
pirate, nevertheless having been taken by pirates
she had become their property and was seiz ible as
such. lamat a loss to express my surprise at this
argument, for it is one of the most trite and certain
maxims of international j urisprudence, flowing from
the very character and definition of piracy, that
capture by pirates effects no legal change in the
property, which continues to belong to the original
owner. ' Idque,' as Bynksrahoek observes, ' est
Juris communis, quo aped omnes genies receptum
est pira'as, domiiiium'3 non mutare.' It is hardly
necessary to observe that it is not competent to the '
Sicilian Government, though the contrary seems to
have been supposed by them by inserting a defini-
tion of piracy into their municipal code, to alterthe
general law of nations upon this or any other point
in which all States are concerted, however such al-
teration may affect the subjects of that Government.
But if the Sicilian law did (which it does not) fur-
nish any authority on this occasion, it would be
impossible to contend according to any recognised
rules of construction that the Cagliari belonged to
the class described in that law as bastimentt ap-
partenenti ai nernici del regno.' It remains to con-
sider the other ground upon which the seizure of
the Cagliari was justified, and which also occupies
the other portion of the folio volume before referred
to. That ground is, that the Cagliari was seized
as a lawful prize during the time of war and in
exercise of the rights of self-defence accruing to the
Crown of the Two Sicilies, or, as it is alleged,
vim, vi repellendo. Now here I must first ob-
serve that it appears to me an unprecedented
attempt to justify the seizure of a foreign vessel
upon two wholly separate and inconsistent grounds
—at one time virtually alleging a state of peace and
making an accusation of piracy ; at another, alleg-
ing a state of war, and putting forth a claim of
prize. There is groat inconvenience as well as
novelty in this mode of procedure, for under cover
of this double defence < r attack (whichever it be
called) arguments elating to one state of things
are perpetually blended with another with which I
they have no connection. But in what war was
the Crown of the Two Sicilies engaged ? Not in a
war with any other State—but, it is said, in that
kind of war with its own subjects which Grotius
calls bellum mixtum. This is a very grave question,
and of the deepest interest to all States. It must,
I think, be admitted, as a matter of fact and law,
that there is a kind of civil conflict between a Go-
vernment de jure and a Government de facto, which
conflict assumes the proportions and must be placed
in the category of a regular war, and which is fol-

lowed with all the consequences of a war in its
operation upon foreign States. Such a war arose
out of the civil dissensions of England in the 17th
century ; such a war arose bet ween Spain and the
Netherlands, upon which the liberty Of the Dutch
Republic was founded (an event, by the way, which
the Sicilian Government in the papers before me
asserts to have been the origin of all the subsequent
calamities of Europe) ; such a war arose between
England and her North American colonies towards
the close of the last century ; such a war arose
between Spain and her South American colonies
during the present century ; such a war, too, was
produced by the recent revolt of Sicily from the
Neapolitan Government, which is more than once
referred to in these papers. But it is manifest
that there is, both in the reason of the thing and
in usage—the two great sources of international
jurisprudence—abroad line of demarcation between
such instances as these, in which there have been
pitched battles and a regular array of forces on both
sides, and the isolated adventure of a handful of re-
bels, such as was attempted by the conspirators of
Ponza (in the case before me) upon Sapri. To con-
found these t wodistinct state of things isto introduce
the greatest confusion into all international relations,
for if both are to be equally accompanied by that
change of international relations incident to a
regular war which affects neutrals as well as belli-
gerents, then it will be in the power of any small
number of desperadoes, who overpower by violence
the crew of a commercial vessel and attack their
native country, though they are subdued by the
civil police force, to place in jeopardy the commer-
cial relations and the commercial marine of every
neutral State. Moreover, if this new doctrine be
admitted, there will be room for the application of
the doctrine of intervention, and alliances between
such adventurers and foreign States will be placed
on the same footing as the alliance of France with
the revolted States or North America against Great
Britain, or with the quadruple alliance which in-
tervened in the affairs of Spain in 1834. No
accredited writer, no judicial precedent, no jurist,
no practice of States, sanctions such an extension
of the doctrine of bellum mixtum, which would be
equally fatal to the duties of neutrals and the rights
ot belligerents. It is indeed almost admitted in
the folio volume before me, that this is a first ex-
periment upon the rights of nations. It is urged
that the growth of Atheism and Democracy during
the last 10 years renders a change in international
law as to the doctrine of bellum mixtum absolutely
necessary for the protection of the Sicilian Go-
vernment. And it is, in fact, upon this ground
that the lawfulness of seizing the Cagliari as a prize
of war is mainly placed. But it seems to have
escaped the notice of the Neapolitan Government
that it is not competent to a'siugle nation to make
any, much less a grave, alteration in the law of all
nations. Thus, Wicquefort says, that whenthe Swe-
dish Minister alleged the Swedish law against a de-
mand of the French Minister, ' Chanut (the French
Minister) repondit que la ley de Swede see pouvoit
pas abolir le droit des gees ; and the learned
writer adds, ce qu'il fact Bien remarquer contre les
nouveaux politiques.' And to the same effect is the
opinion of a yet greater. master of that law, Lord
Stowell, who, in the c .se where one State attempted
an innovation in international practice to the injury
of others, observed It is my duty not to admit
that because one nationhas th ought proper to depart
from the common usage of the world, and to meet
the notice of mankind in a new arid unprecedented
manner, that I am on that account under the neces-
sity of acknowledging the efficacy of such a novel
institution, merely because general theory might
give it a degree of countenance, independent of all
practice from the earliest history of mankind ; the
institution must conform to the text law, and like-
wise to the constant usage upon the matter ; and
when I am told that before the present war no
sentence of this kind has ever be* produced in the
annals of mankind, and that it is produced by one
nation only in this war, 1 require nothing more
to satisfy me that it is the duty of this court to
reject such a sentence as inadmissible.' It is said,
however, that the procedure of the Sicilian Govern-
ment towards the Cagliari is not novel or unprece-
dented, inasmuch as the conduct (much praised in
the Sicilian statement) of France in 1832, in the case
of the Carlo Alberto, furnishes an exact precedent.
Fortunately, the facts of this precedent are duly
published and ascertainable by everybody. The Carlo
Alberto, a Sardinian vessel, conveyed the Duchess
de Berry and a number of her partisans to the coast
near Marseilles, for the purpose of exciting a civil
war in France ; she had false papers on board; she
directly contravened the sanitary and the police
laws applicable to the territorial waters where she
was found. But what was the question determined
by the Court of Cessation ? That the Carlo
Alberto was seizable as a prize, or as a piratical
vessel 1 Neither one nor the other ; that great
tribunal, presided over by M. Dupin, decided and
most rightly that it was competent to the French
police to arrest persons on board this merchant
vessel in their territory ; in other words, that the
comity of nations did not protect a merchant vessel
from the visit of the police, or the conspirators on
board her from arrest, but the court expressly re-
fused to condemn the Carlo Alberto as prize. This
simple statement of facts shows that this case of the
Carlo Alberto—this solitary precedent—furnishes
no authority at all for the capture of the Cagliari,
but, on the contrary, is condemnatory of that cap-
ture. Something is E aid about the captain of the
Cagliari submitting to and pleading before the
Neapolitan tribunal, but it is obvious to remark
that the claim of the Sardinian Government is a
claim of public law founded on public policy, and
wholly unaffected by any proceedings of an indivi-
dual subject under any circumstances, much more
under such circumstances as these. The Cagliari
could not have been lawfully seized as prize except
in a time of open acknowledged war ; the right of
prize and all the well-known incidents to it belong
to a belligerent, and not to a pacific government.
The Cagliari was as little liable to condemnation by
the law of prize as she was by the law of piracy.
There are other circumstances in which the Sic ban
Government has but too little regarded the rules of
international law. I pass by the constitution ot the
so-called Prize Court, the mode of examination,
the unjust and indefensible prohibition which pre-
vented the captain of a foreign ship seized on the
high seas from access for a considerable period to
legal advice and aid ; but I cannot omit to notice
that it is stated that this so-called prize of war has
been the subject at one and the same time both
of a penal and of a civil procedure—a procedure
wholly un .warranted by the international law as
to prize. And I read, to my further amazement,
in the Neapolitan Minister's despatch, that the
ship of war belonging to the Sicilian Crown has
a right to proceed to the condemnation of a ship of
another State as a private suitor, without the au-
thority of his government. The plain truth is that all
these anomalous departures from the laws of nations
are the necessary consequence of applying to a state
of peace the stern rules which an inexorable necessity
renders incident to a state of war, and which the
law of nations strictly confines to tbat state. But
it most nearly concerns all neutral and indepen-
dent States to take good heed that these extraordi-
nary rights of belligerents are not imported into
their ordinary pacific relations. The case of the
Cagliari is the first attempt of the kind, and I am
not surprised that the British Minister at Turin
should express in his despatch of sth Jan., 1858,
the expectation of the British Government that Sar-
dinia will, by demanding the restitution of the Cag-
liari, her cargo, and her crew, resist this unjusti-
fiable infringement of the rights of nations ; and
surely she may not without reason expect that iu
this resistance she will receive the support and co-
operation of every independent, and especially of
every maritime State.

TERSE PILOTS DROWNED AT LIVERPOOL.--- On
Tuesday,. during a severe gale, John Davies, a pilot,
and Wm. Lancaster and Thomas Bell, apprentices, all
belonging to No. 10, Liverpool pilot boat, were drowned
off Point Lynas, while proceeding in a punt to board a
ship. The punt was overturned almost as soon as it was
lowered into the sea, and in spite of the efforts of the
crews of the pilot boat and the ship, the poor felows
were drowned. Davies, the pilot, leaves a uife and four
children. His widow will receive 1501., and 101. per an.
num during her life, and 31. per annum for each of the
children until they are 13 years of age.

~ADvaaTIBBMENT.}--It is over a pleasing duty of a journalist
to introduce to his readers some new discovery calculated to
benefit that vast portion of our fellow-creatures which has the
strongest claims upon our sympathies. It is with this feeling
that we call the attention of invalids to the following extracts
from Du Barry's interesting report of cures without medicine
of Indigestion (Dyspepsia), Flatulency, Constipation, Nervous,
Bilious, and Liver Complaints, Cough, Asthma, Consumption,
and Debility, by Du Barry's Revaleuta Arabica Food ;—Cure
No. 52,422.—Bridgehouse, Frimley, 3d April, 1854,—1 have
suffered these 33 years continually from diseased lungs, spit-
ting of blood, liver derangement, deafness, singing in the ears,
constipation, debility, shortness of breath and cough, and
during that period taken so much medicine that I can safely
say Ithave Lid out upwards of a thousand pounds at the
chemists and doctors. Indeed I was in utter despair and
never expected to get over it, when I was fortunate enough to
become acquainted with your Revalenta Arabica, which, Heaven
be praised, restored me to a state of health I long since despair-
ed of attaining. My lungs, liver, stomach, head, and ears are
all right, my hearing perfect, and my recovery is a marvel to
all my acquaintances.--Damns ROBERTS, Wood Merchant.--
Supported by testimonials from the following celebrated Pro-
fessors of Chemistry: Dr. A Ure; Dr. Shorland; Dr. Harvey,
Dr. Campbell ; Dr, Gattiker ; Dr. Wurzer ; Dr. Ingram ;
' Lord Stuart de Decies; the Dowager Countess of Castiestuart;
' Major Gen, Thomas King, and many other respectable per-
sons, whose health has been restored by it, after all other
means of cure bad failed. Suitably packed with full instruc-
tions. In canisters, 11b. 2s. 9d. ; 21h. 4s. ed. ; 51b, 1 ls. ;
121 b. 225. The 12113 canisters are sent carriage free, on re-
ceipt of Post-office order. Barry Du Barry, and Co. 77,
Regent-street, London. Important Caution against the fear-
ful dangers of spurious imitations.—The Vice-Chancellor Sir
William Page Wood granted au Injunction on the 10th March,
1854, against Alfred Hooper NeVill, for imitating "Du
Barry's Revaantil Arabi9A FOWL!

LOLA MONTES IN THE WITNESS BOX. -A
ROUGH AND TUMBLE FIGHT IN AN AXE
RICAN LAW COURT.

In the Supreme Court of the State of New York, a
suit brought by Mr. Jobson, a literary man, upon a
matter of no great public interest, has given occasion to
what might on this side of the Atlantic be regarded as
an extraordinary scene --resulting in a " rough and
tumble," otherwise called an " up and down fight," be-
tween the plaintiff Jobson, and Mr. F. Seely, the de-
f endant'e counsel, in the presenee cf Mr. J. H. Whiting,
the official arbitrator, to whom, by the decree of the
court, the case was referred. There being apparently a
good deal of "hard swearing" on one side or the other,
the defendant's counsel thought it necessary to call Lola
Montes as a witness to damage the plaintiff's general
character. She stated that she had known Mr. Jobson in
Landon, and described his conduct and reputation in the
severest terms. In cross-examination'sbe was questioned
unmercifully about her own past career, and persisted in
declaring that her name was originally Rosanna Gilbert,
and that she was born " in the beautiful town of Lime-
rick." She said she was 33 years old, and had had two
husbands—the first a Captain James, who took her' to
India ; that in London she learnt dancing for the stage
from a Spaniard named Espa, and then passed some
months in Spain. Being asked flatly, "How many
intrigues have you had l" She replied—

Wine ; I resided at the Court of Bavaria two years.
Who did you know there ?
Ever) b dy but yourself. I knew all about several mil-
lions of persons. I knew the King of Bavaria—Mr. Wit-
telshacher he was called—that was his family name.
Were you the mi-tress of the King ?
(Rising.) What I (Emphatically.) No, sir. Yoe are
villain, sir I will take my oath en that book (the Bible),
which I read every night, I had no intrigues with the
old man. I knew the King, and moulded the mind of the
King to the love of freedom. He took me before the
whole court with hie wife, and presented me as his best
friend. I was on the stage in Bavaria. It is easier to be a
man's mistress than a dancer. I was in Bavaria in 1847
and 1848. In 1849 the R, volution occurred, and lib,ity
and I fled. The King and Queen supported me while I
was there. I was engaged in political business. YOU
might call me prime minister if you please, or, as the
King said, I was the king. There was a man f straw
there as prime minister. True, but he was only.a man
of straw. The memoirs that have been written about
roe are lies. I was called Countess of Landsfelt.

There was much more of thin kind, and the court ad'
jonmed.

On the 18th ult, the proceedings were resumed, before
a crowd of curious spectators specially admitted by
ticket. Mr. Jobson, the defendant, came armed with a
rattan cane, and sat beside his counsel,
,Mr. Schermer..
horn, who resumed his cross-examination of Lola Moe•
tee, asking.her whether her real name was not Betsy
Witt. on, whether she was not born at Montrose in 1815,
and other such questions, which she contemptuously
refused to answer, retaliating on the learned counsel by
asking him whether he had not been brought before the
police court for beating a lady. She was then asked
whether she had not been chambermaid at the Star Inn,
Montrose ? and replied, " You cannot make me out a
chambermaid ; it i 3 not a dishonest thing either, if I
was": I should have considered myself a far treater
woman if I had been born a chambermaid than I sal
to-day."
Th 4 examination was abruptly brought to a close by
the following scene between Mr. Seely, the defendant 'o
counsel, and Mr. Jobson, the plaintlff ;
Mr. Seely (to opposite counsel)—You will conies her
examination to her knowledge or means of knowledge
at the character of this fellow ; him here (pointing to
Jobson).

Mr. Dobson (excitedly)—Now, sir, if you call rag a
fellow again, you vagabond shyster, I'll let you see.
Mr. Seely—You will ; say another word and I'll drop
yon down the three stories.

Mr. Jobson—Yon are a vagabond, sir, and if yoti
come across here, I'll chastise you.
Here Mr. Seely jumped to his feet and attempted tO
strike Jobson, but the large stove intervening, the blow
was either weakened or fell short of its aim. Jobioit
started up df his seat, at the same moment raised bia
cane and struck Seely a slap over the head with it;
Seely wrenched the weapon out of Jobson's hand, rushed
past the stove, caught his opponent by the head, Acta
pummelled him severely for several seconds. Then the
police and bystanders interfered and separated the com-
batants. The scene, had it not been somewhat tragical'
would have been ludicrous in the extreme. The unfor-
tunate referee kept running backwards and forwards in
a state of helpless terror. Madame Montag, who was
separated from that portion of the room in which the
conflict occurred by a large table, exhibited her custo-
mary coolness, but by the flashing of her eyes, and an
involuntary movement towards Mr. Jobson's °aunt, whey
it was suffering sore infliction at the bands of Mr; Seely,
it was evident she would have had no objection whatever
to furnish herself with a souvenir snatched from that un-
fortunate perieranium. When the parties bad been
separated, Jobson was dragged backwards towards the
He returned to the scene of the encounter imme-
diately, made threatening gestures at his late opponent,
and incurred a second onslaught, which nearly upset the
table, but ended in nothing more serious than the empty-
ing of an ink-bottle into the shirt bosom of one of the
replrtere.

Madame Montes now began to manifest great exoite•
meat. "Good people I men I" she exclaimed, -" talcs
case of Mr. Seely, He is a good and an honest man.
Mr. 'Seely, don't touch that man ; he is not worth a
gentleman's touching."
" I know," cried Mr. Seely, " that be is not worth
punishing—the vagabond,"
The panting belligerents bad again been separated, and
thus the battle ended.
The lady addressed the persons around her, and cried
in a tone of bitterness,
" Oh there is no law tbat can
prevent a woman from being injured in her charaoter send
in a false manner I"
Nobody gave her the required information, probabli
because law was not then the precise matter at issue.
The referee (who had full powers to commit them all
to prison, and is Waited by the New York press for not
doing so), at last got" the court cleared, and protested he
would have no more to do with the case.