Page images

that piracy has always been tried in the courts of all civilized nations, and no one ever heard of prisoners charged with that offence, unless indeed in actual conflict on the sea, summarily executed. In the case of a vessel captured at sea without any conflict or any act of piracy, the question of piracy would have to be legally tried and determined. There would only be a charge of piracy; legal proof of the crime would be necessary in a regular court of justice, and the legality of the capture would no more legalize summary trial and execution of the prisoners, than the capture of a man by a police-officer would justify his instant execution. It may seem almost absurd to notice such a point, but it is a fact, however incredible it may appear, that persons have actually rushed to the conclusion that if the capture was lawful, the prisoners might be summarily put to death. A most monstrous and outrageous conclusion. Even a vessel is not legally condemned without a lawful trial in a regular court. All that a lawful capture can legally lead to either as to ships or men, is a lawful trial, and a lawful trial must still take place in some regular and lawful court. It is scarcely necessary to say, that a court-martial in such cases is not a lawful court at all; since it can only take cognizance of acts on the territory, and of those who have been taken in actual hostility. Nothing done on the high seas can make a case for a court-martial any more than anything on land, except a participation in actual insurrection. Robbery is not triable by court-martial, even in the case of subjects of the country; a fortiori in the case of foreigners, and piracy, is as the courts have declared, merely the offence of robbery at sea. A trial by court martial, therefore, in such a case, would be no trial at all. Upon this point of the case, we are glad to find a powerful supporter in our learned contemporary, the Law journal, who cites the high authority of Phillimore.

“Were it not that extraordinary confusion of thought surrounds points in the law of nations, we should not deem it necessary to advert to the strange theory that the Virginius was a sort of pirate ship, and the people in her quasi-pirates. Those who wish to understand what a pirate is, and what piracy is, should read chapter 20 of the first volume of Sir R. Phillimore's ‘Treatise on International Law. Without labouring the subject, we may point out that piracy is a crime committed at sea ; pirates are sea malefactors, as the Greeks well said, oi kara 6axagorav kakovpyot. Now the persons on board the Virginius contemplated mischief on land, but certainly they never intended to injure either men or property at sea. As Lord Stowell said to the grand jury, in 1802, “You have to inquire of such acts committed wherever the ocean rolls.’ That great judge would indeed have been amazed at the suggestion that an unharmed ship, bound for a port in the hands of belligerents or rebels, with soldiers and rifles, intending not to fight at sea, but to run away from all other ships, and to land cargo and men as soon as possible, could be condemmed either in an Admiralty Court, or even in foro conscientia, as a pirate ship. It has indeed been contended that upon the authority of the case of the ‘Magellan Pirates' the persons on board the Virginius might be pronounced to be pirates. But the language of Dr. Lushington in that case clearly demonstrates the contrary. That very learned judge said: “As to the general character of these transactions, I really entertain no doubt that they were piratical acts, in no degree connected either with insurrection or rebellion. In one sense they were acts of wanton cruelty in the murder of foreign subjects, and in the indiscriminate plunder of their property. I am of opinion that the persons who did these acts were guilty of piracy, and were to be deemed pirates, unless some of the other objections which have been urged ought to prevail. It has been said that these acts were not committed on the high seas, and therefore this murder and robbery is not properly or legally piratical. But in this case the ships were carried away and navigated by the very same persons who originally seized them. I consider the possession at sea to have been a piratical possession, and the carrying away the ships on the high seas to have been piratical acts. . . . ‘I apprehend that in the administration of our criminal law, generally speaking, all persons are held to be pirates who are found guilty of piratical acts, and piratical acts are robbery and murder upon the high seas.”—Phillimore's International Law, vol. i. chap. xx. p. 423.” We are happy to observe in the most able organs of public or professional opinion, a general concurrence in our views. As the Saturday Review stated, with truth, the Virginius sailed from the port at Kingston with a regular clearance from the Custom House officers; so that it was perfectly well known that the ship conveyed stores and arms to the rebels in Cuba, but the vessel was not in the service of the insurgents, and carried the American flag. The President of the United States stated the facts of the case in his message. Upon those facts there can be no doubt that the law advisers of the President was right; that the capture was unlawful, and that even if it was lawful, the executions were utterly unjustifiable. We learn from the Albany Law journal that Dr. Woolsely, in a lecture on International Law as Yale Law Class, adverted to the case, and considered it not provided for by the law of nations. He said that the offence was not piracy, for there was no animus furandi, nor carrying contraband of war, as there was no war. The conclusion, according to Wheaton, is that there was no right even of capture. The Professor put it as a right of self-defence, but this is clearly an error, for the seizure was on the high seas, and self-defence would apply only in Cuban waters. The Professor says that a strong nation would in such a case seize the vessel and take the consequences; but this waives the whole question about it, what would be the consequence And if it is contrary to the international law, and the other nation were also a strong nation, the result would be war. The whole object of international law is to lay down rules right which may prevent war. And there are no rules of international law clearer or stronger than this—that in time of peace the flag covers the vessel, unless it is engaged in piracy or depredation on the high seas. It is obvious that the Professor spoke hastily and without due consideration. The case clearly violates clear and elementary principles of international law. The view we take of the question is, we observe, confirmed by a letter of Professor Lawrence, in the Albany Law journal. The Professor, we are glad to find, says

“I intend to treat the subject in its extended range, in one of the lectures which I propose to deliver, at some period of the winter, before the Columbian University at Washington, in acknowledgment of the honor conferred on me by the corporation in electing me the first ‘Professor of the Law of Nations’ in the school of law of that university.” Alluding to Professor Woolsely's letter, he says, “A notice, which appears in your last number, of what purports to have emanated from a high authority, is, however, so much at variance, not merely with my present views, but with the conclusions arrived at several years since, and which accord, as far as my knowledge goes, with the opinions of all eminent publicists, as well of England as of the continent of Europe, that I cannot avoid sending you a paragraph having reference to a Sardinian vessel captured by the Neapolitan marine, during the existence of a revolutionary movement in the States of the king of the two Sicilies. “That no apprehended inconvenience, on account of the revenue or even public safety, can, in time of peace, give a right of visitation on the high seas, although near the coasts of a country, if beyond the ordinary maritime jnrisdiction, but that such power can only be exercised by the positive or tacit permission of the State to whose subjects the merchantman belongs, is well shown by an eminent civilian of Doctors' Commons in an opinion which he has recently furnished for the guidance of a foreign government’ (Lawrence on Visitation and Search, 73). This article was transferred to the second edition of Lawrence's Wheaton, 229. It is there stated that the opinion referred to was given by Dr. Twiss, in 1858, the time of the occurrence. One to the same effect was also prepared by Sir Robert Phillimore, at the request of Count Cavour.”


THE TICHBORNE CASE.--There appears a prospect of the termination of this case. In adjourning for the Christmas holydays, the court intimated that they should expect that Mr. Kenealey, who had been speaking for ten days, and had spoken 21 days in his opening speech, would close his address in a week after the court renewed its sittings. The judges intimated that only a small portion of the present speech approached to a summing up of the evidence, which is all that Denman's Act allows, and the Lord Chief Justice said that a great part of the speech had merely gone over the same ground as before. This was putting it far too moderately. Out of the ten days during which Mr. Kenealy had been speaking, it is a simple fact that he had only occupied two hours in summing up evidence. He took that time to sum up the evidence on both sides on one of the most important parts of the case—the arrival of the Osprey at Melbourne in 1854. There were about 20 witnesses on that head, and their evidence only occupied two hours. From this it may be seen that it would only take about three or four days to sum up the evidence of his 250 witnesses, even supposing there were as many whose evidence was worth summing up. Nearly the whole of the ten days was occupied in vague declamation, and chiefly in attacks upon the prosecution, with irrelevant digressions about Byron, and Bamfylde, Moore, Carew, Savage, Long Pole Wellesley, and other eccentric characters, with cases in support of a theory that big men were generally bad men, and other topics of that sort. It was time this was checked, and the court, not too soon, resolved to check it. There is a precedent for a court stopping a party who is merely wasting time in the case, and it is a precedent set by the highest tribunal in the realm. In the case of the Sheddens, before the Lords some years ago, after they had spoken 21 days, as they were merely repeating what they had said before, and plainly wasting time, the Lords refused to hear them any longer, and proceeded to judgment. The bar had long wondered at the forbearance of the court, in the present case. Another great power has already been established by the court, and that is the power of adjourning in criminal cases, when, by fault on the part of the defence, the prosecution has been precluded from bringing up witnesses in time. On the 8th of August Mr. Kenealy, in his opening speech, stated the evidence of two men—Brown and Luie—whose statements had been taken a month before, and one of whom was to swear that the other was mate of the Osprey, and the other that the Osprey picked up “Roger” after the wreck of the Bella. Being asked by the court what port the Osprey came from, he said New Bedford, though the

« PreviousContinue »