The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1869-10-13

sense. In view OF the gradual formation of
this body of law, the case of the Cuban phi
vateer Hornet will become of deep interest.
The facts of the case are not yet clear, but so
far as they are known il would appear beyond
question that the vessel was manned and pro-
vlsioned in the ports of this country, where
she was once arrested on suspicion and re-
leased; that she also touched at Halifax where
she was detained and egain released; and that
she received her armament subsequently from
vessel off the coast.
She finally, whether from want of coal or
to present test case, put in at Wilmington
flying openly the Cuban flag, where the
United States Commissioner has summarize.
arrested her, on affidavit, as violating the
Neutrality acts of 1918, and on the ground
that she was armed and equipped within the
limits of the United States, with the intent
to commit hostilites against a friendly power,
and also upon the high seas as pirate.
The case for the United States was opened
on Tuesday, the 9TH, and was adjourned till
yesterday in order to enable the Government
to present its witnesses The counsel for the
privateer Hon. George Davis, is represented
as 'boiling over with Cuban enthusiasm and
sympathy which is probably the explanation
of his opening speech for the defendants be-
ing somewhat wild and sensational
7 When this "Cuban heat" has somewhat
cooled down, we shall probably learn from
the learned advocate better what the legal
points of his case are to be. 1t need not be
said that it is a bad-loobing case for the pri-
vateer.
II is true that the worst accusation, that Of
piracy in the Commissioners warrant, is one
always somewhat difficult to prove.
According to the former idea of piracy, in
international law, it was sufficient to consti-
tute piracy, jHre geHttuD, that the offense,
say of robbery OF destruction of property,
should be committed on the high seas, and
that the offenders should be free from law
full authority" or, in the old French terms,
should have 'Uj fen nj EcU neither freside
nor home. 1t was also claimed that the act
should be lUcrj cauSa, for the sake of gain,
and ammo t2lrQGd{, or with malicious intent.
But the modern fact of plumber and de-
struction committed ON the high seas by
rebel who does not yet fly recognized flag
has somewhat changed the old definitions of
this crime. The question "How far a rebel
is pirate p frequently came up during our
civil war, both in our own courts and in Eng
lish debates Great Britain held then toward
our rebels, before the recognition of beliger-
ency, the same relation which we now
hold towards the Cuban insurgents. In the
| debate in the House of Lords, on the 10th of
! May, 1861, on the Presidents Proclamation,
! Lord Chelmsford stated what was generally
accepted by the English publcists, that eff
| the Southern Confederacy had not been recog-
nized as a belligerent power by the British
Government, if any En9lishman were to fit
out privateer for the purpose of assisting
| the Southern States against the Northern
States, he would be guilty of piracy" The
neutral courts would have followed III this
our own courts Judge Nelson in the case of
the crew of the Savannah, a rebel privateer,
held that their ottense, if proved, was that of
piracy, but doubted if it would be piracy .j,ro
gentjd0,, inasmuch as the intent of the prison,
ers was to depredate on the property of one
nation only and not on that of any or all
nations
Chief Justice Marshall. in another case
the Klintocll case-threw out similar sug
gestion, that a person acting in good faitl
under a commission, supposed to be ISSUED
by competent foreign authority, might moi
be guilty of piracy.
This. however, is not the received position
by publicists. nor the one resting on common
sense 1t is plain that for the safety of man
kind every one who takes commission from
a foreign power to wage private war must
do it at his own peril, and must know that hi
commission is unlawful.
This has been we'll stated in the american
JU7ISt If the acts are such as constitute
piracy, it is of no consequence what othe,
Governments have recognized belligerency
our courts are bound to follow our own po
litical department alone, and if this has no
recognized beligerency, the commission of
rebel power cannot be admitted as defense
Nor can it be admitted as a plea that vesse
like the Hornet is fitted out with intent t.
depredate on one power alone If she com
mits, while flying pirate flag, violence o
plumber on the high seas on the ships of
power sailing 'in the peace of all nations,
the presumption is that she would do tn,
same to the vessels of other powers, and sh
becomes thereby a hOstiS h,t0t0nj generjS-al
enemy of the human race-and liable to b.
tried as a pirate anywhere
The Hornet, it is true, may escape iron
the charge of piracy, inasmuch as no over
act has been committed; or because n
hostile intent can be proved. The evidenc
presented yesterday will probably determin
this.