« EelmineJätka »
just possessions; and by its just possessions we are not to understand its territory only, but all the rights it enjoys. And he also considers the vessels of a nation on the high seas as portions of its territory.
A vessel sailing on the high seas, pursuing a lawful voyage, therefore forms a portion of the territory under the colours and authority of which she is sailing. This rule of public law has been recognised by England in a most remarkable instance. In 1845, Serya and other foreigners were convicted of a charge of piracy and murder, the facts being that they had murdered a British officer and prize-men who had been placed on board their vessel, a Brazilian slave ship. The treaty between England and Brazil for the suppression of the slave trade, provided “ that the respective ships of war which shall be provided with special instructions, may visit suspected merchant vessels,” &c. The learned judge who tried the case was of opinion that the slaver had been lawfully captured, so as to bring her into the lawful possession and dominion of the Queen of England, and that her deck was as much within her Majesty's admiralty jurisdiction as the deck of the Wasp herself, so as to render the prisoners amenable to British law. It was doubted, however, whether the instructions on board the Wasp were sufficient; and, when the case came before the fifteen judges on appeal, a majority decided that the sufficiency of the instructions on board the Wasp had not been proved— that there was no evidence of the legality of the capture, so as to render the vessel a lawful place of custody for the prisoners, and under these circumstances a free pardon was granted; although it may be added that, upon the clearest evidence, it had been established that Serva, Majoval and the others, had murdered the officer and the whole of the British prize crew. This instance is cited for the purpose of showing, that by the law of England foreigners are not ordinarily triable in this country for offences committed abroad, and that the court of appeal in a case of almost unparalleled atrocity, construed the provisions of the Brazilian treaty with a degree of strictness, which, disregarding the newly broached doctrine of Malum in se, led to the entire dispunishment of eleven men who, upon the clearest evidence, had been guilty of piracy and murder.
Long usage and universal custom entitle every foreign ship of war to be considered as a part of the state to which she belongs, and therefore she is exempted from the territorial jurisdiction of the state which she may happen to visit (Phill. 1, 377). With regard to private vessels, as before remarked, except under the provisions of an express stipulation, they are subject to the territorial jurisdiction of the state in whose ports they may happen to lie. But in either case, when an offence has been committed on board a vessel navigating the open sea, all authorities concur in declaring that the territory of the country to which the vessel belongs is to be considered the locality of the offence, and in pronouncing that the offender must be tried before the tribunals of his own country.
The Cagliari, “a steam-boat known in the Mediterranean as charged with the postal service, making periodical and fixed voyages; a steam-boat carrying the flag of a friendly power, having a fixed and publicly announced destination; a steamboat provided with the necessary certificates proving its nationality and the legality of its cargo”-left Genoa on the 25th of June last for Cagliari and Tunis, having on board, in addition to the captain and crew, thirty-three passengers. It appears from a despatch addressed by Sir J. Hudson to the Earl of Clarendon (July 10, 1857), that the forcible seizure of the Cagliari formed portion of a plan which M. Mazzini had proposed to Colonel Pisacane (a Neapolitan refugee), for the purpose of making a descent upon Naples and Sicily—“ himself, as usual, keeping out of harm's way." A few hours after leaving Genoa the captain and crew of the steamer were seized by the passengers, who with pistols in their hands threatened instant death to any one who offered resistance. The Cagliari, thus in possession of the insurgents, proceeded to Ponza and Sapri, and after the insurgents had landed, the Sardinian captain having resumed the command, “ was navigating towards Naples, to inform his Majesty's consul and the Neapolitan authorities of the violence he had suffered, and of the outrage of the rebels, as he himself has declared."
Mr. Park in his narrative confirms this statement. He says, “ As soon as we got rid of one self-constituted captain, and were our own masters, we steamed off, and our captain shaped his course towards Naples, thinking it wiser to proceed thither, and make a declaration of what had occurred."
Now it has been officially proved by the captain of the Neapolitan frigate Tancredi, and the advocate of the Intendency of the Navy, before the Prize Commission, that the Cagliari was arrested as above, thirty miles from Salerno and twelve miles from the little Bocche de Capri, the nearest portion of the Neapolitan territory. It was therefore clearly beyond the territorial jurisdiction of Naples.
The Cagliari at the commencement, and at the termination of its voyage, was clearly a regularly documented Sardinian vessel. Can it be said that the acts which were committed by the insurgents at a time when the captain and crew were in duress, clothed the vessel with a permanent character of piracy?
A pirate plunders in the midst of peace as in the midst of war, and acts without the authority or commission of any state. Sir L. Jenkins well and quaintly remarks
“ The power and jurisdiction which his majesty hath at sea in these remoter parts of the world, is but in concurrence with all other sovereign princes that have ships and subjects at sea; and it is on this special regard that pirates are called hostes humani generis ; in that, as they do give themselves the liberty of making a prey without distinction of all nations and all manner of people; and do as much as in them lies, hinder that mutual amity and supplies which Providence hath ordained as the means to cherish and preserve that humanity and sociableness which distinguishes not only Christians, but all men, from savages and beasts of prey; so all nations and sovereign princes that meet with them have a just and competent authority to execute the law upon them. And they are, therefore, esteemed to be out of the protection of all princes and of all laws; because every magistrate that bears the sword for the terror of those that do evil, is to draw it against them, and is made a minister to execute justice upon them, wherever they can lay hold of them. How keen the
persecution against them was, even in the middle ages of the world, will appear by the ancient Imperial Law; the judges who were, by law, to have that regard to certain festivals and times of devotion, so as not to hold any criminal pleas upon them, being expressly commanded not to forbear any of their proceedings, even upon the most solemn times when any of the Isauri (the corsairs of those times) were brought before them, making this piece of service for the public security to be tantamount to an act of religion and worship to Almighty God."
In what sense can the Cagliari be deemed a pirate ? Its papers were regular-its cargo was lawful-and its voyage was also lawful. It had the misfortune to fall temporarily under the control of the passengers, who mutinied against the captain and crew, and committed other illegal acts; but it was not only an innocent vessel at the time of capture, but was in a situation in which, according to the contemplation of public law, it formed a portion of the soil and territory of Sardinia. Therefore if, under these circumstances, the Cagliari had committed acts which were contrary to the positive laws of Naples, the Neapolitan government could have no right to decide by its own authority a matter which was one of public discussion, not of private contention, between the two governments of Sardinia and Naples, and one which was solely cognisable by the tribunals of Sardinia.
The case of the Carlo Alberto has been cited by the Neapolitan authorities for the purpose of showing that every act of hostility committed by a vessel, even when protected by the flag of a friendly power, gives a right to capture wherever the
a same may be pursued. The Carlo Alberto was a private Sardinian vessel, which, after having landed on the southern coast of France the duchess of Berry and several of her adherents, with the view of exciting civil war in the country, put into a French port in distress. The Court of Cassation did not condemn the Carlo Alberto as a prize, but merely decided that, supposing the allegation of distress to be founded in fact, it could not serve as a plea to exclude the jurisdiction of the local tribunals taking cognisance of a charge of high treason against the persons found on board after the vessel was compelled to put into port by stress of weather. The Carlo Alberto is in reality a direct authority against the policy which the Neapolitan government has pursued.
But there is a case which is even stronger than that of the Cagliari itself-a case in which a vessel which had innocently taken part in an insurrectionary movement, after detention, not upon the high seas, but within the terrritorial jurisdiction of the invaded state, was liberated, and the crew allowed to depart without punishment.
In August, 1840, the City of Edinburgh steamer, belonging to the Commercial Steam Navigation Company of London, was hired by Prince Louis Napoleon, ostensibly for an excursion along the British coast, for fourteen days. The steamer was seized by the prince and his friends-fifty or sixty in number -a descent was effected at Boulogne, the result of which was that the insurgents were defeated and captured. The City of Edinburgh steamer was seized by the captain of the port, and the British crew were detained. The agent of the Company at the time said—“I am ready to depose in the most solemn manner, that neither the crew nor the captain had the slightest suspicion that Prince Louis Napoleon, or any other person animated with hostile or criminal intentions against France, were on board the vessel.” At this time the greatest possible ill feeling prevailed between England and France—the two countries were apparently on the eve of entering into war on the subject of the Syrio-Egyptian question ; nevertheless the crew and the steamer were ultimately restored, although they had both been seized within the territorial waters of France, and had apparently been engaged in aiding an insurrectionary movement against the government of that country.
Next may be mentioned the case of the Arrow, which a short time ago occasioned so much discussion in Parliament. This case is cited for the purpose of showing the respect which is due to the nationality of a vessel, as evidenced by the flag which she bears.
The lorcha Arrow, the property of a crown lessee of land in Hongkong, who had taken the oath of allegiance to the