British consular employ) in Tunis, the British Govern-
ment remitted the case to the Bey. The consuls of the
other nations warmly protested 2 against this procedure
as reviving an obsolete practice. One curious feature of
the trial was the rejection of a witness on religious grounds.
That was expressly declared by Lord Aberdeen to be
admissible : and indeed English law contained not
dissimilar provisions. " It certainly would have been
more satisfactory to H.M. Government if the witness in
question had not been rejected on that ground. But as
they have no reason to doubt that such is the Moham-
medan law, or to suppose that the Bey of Tunis has
been actuated in this matter by any other than a sense
of duty, and a desire impartially to administer justice,
H.M. Government, however they may regret the harshness
of that law, do not consider that they would be justified
in interfering with the sentence." :t
In the same year, Britain and other powers united
1 34 S.P. 1 175, Aberdeen to Rose, 19 Sept. 1844. " H.M.
Government perfectly approve of you affording general and
efficient protection to all Christians in Turkey who may appeal to
you against the oppression of the Mussulman authorities of the
Porte." See also 35 S.P. 935, 971 I 4° S.P. 221 ; 45 ib. 1178.
2 Except the American, John Howard Payne.
3 32 S.P. 807.
112
ILLUSTRATION [chap, iv
(ignoring their own history) in obliging the Sultan to
refrain from visiting relapse into Christianity with a
capital penalty, even in the case of his own subjects. 1
Turkey viewed this as an inadmissible interference,
but eventually gave way.
The brigantine Hibemia, which had been engaged on
her own account in diving operations on the coast of Peru
in 1845 contrary to law, was arrested at Lambayeque, and
after nine months' process, released. Falk, the owner,
claimed £3,ooo. 2 The British Charge d' Affaires, however,
placed his conduct in so unfavourable a light, that the
claim could not be for a moment entertained. Mean-
while, the naval forces on the station had been active,
and a suspicion suggests itself that the acquittal of the
vessel was not unconnected with that fact. Evidently
the British Agent thought the ship was lucky to get off.
The court proceeded on highly technical grounds. 3 The
supercargo actually wrote to Commander Baillie, to keep
his sloop at Lambayeque, evidently to overawe the
courts. 4 This case shows the danger of making claims
from a distance of thousands of miles. If Mr. Adams,
the Charge d'Affaires, had been a less competent or a
less energetic person, it is quite possible that the affair
would have ended differently.
The forms of law might have produced some un-
necessary delay, says Aberdeen ; " but neither in form
nor in substance has there been sufficient cause for a
remonstrance to the Peruvian Government." 5
It appears that great anxiety was felt at the time
at Lambayeque, on account of foreign designs on the
neighbouring guano islands," the Peruvian title to which
was disputed.
During an insurrectionary outbreak at Madrid in
1848, a Mr. Whitwell of Darlington was killed and two
1 32 S.I'. 922. 2 35 S.P. 1284.
8 lb. i2<»7. * lb. 1295. 6 lb. 1 301.
" See 45 S.P. n88, Hamond to Malmesbury, 20 April 1852.
chap, iv] BRAZILIAN DIFFICULTIES 113
English servants were deliberately wounded by the
soldiery, when retiring from their challenge at night. 1
At Naples, in 1848, a Mr. Maclean's carriage was
attacked, and a Mr. Hemans struck, by soldiers. It does
not appear that any satisfaction was obtained, any more
than in the Madrid cases. 2
A seaman belonging to H.M.S. Rifleman was shot in
the execution of slave-trade duty at Moela (Brazil) in
1850. His alleged assailant was acquitted, and although
Palmerston thought the proceedings ' very unsatis-
factory," he did not see any utility in further discussing
the subject. 3 The trial was held without the witnesses
from the Rifleman being given an opportunity of attend-
ing or of adding to their imperfect written evidence on
which a condemnation had proceeded in the court of
first instance.
A serious difficulty, leading to a suspension of diplo-
matic relations, occurred with Brazil in 1862. It was
two-headed : the barque Prince of Wales ran ashore
and was plundered in June 1861, while a party of officers
from the Forte were arrested and imprisoned a year
later. The former case of wreck took place on a remote
part of the coast ; still there were local authorities there
who might have exerted themselves more efficiently. A
government does not, however, undertake to insure
against crime. In the way of subsequent prosecution,
there were undoubted difficulties. But the measures
taken were feeble in the extreme. Lord Russell wrote
that a more searching investigation ought to proceed. 4
' No government," said Mr. Taques, " can be answer-
able for damages caused by outrages committed, without
its concurrence or instigation, in its territory, or by its
subjects against foreigners. The duties and efforts of a
just and conscientious government cannot go further
than the employment of all means within its reach to
1 Cf. the Honduras case, infra, p. 237. 2 44 S.P. 805.
3 41 S.P. 327. « 54 S.P. 614.
8
114 ILLUSTRATION [chap, iv
ensure the conviction and punishment of those proved to
be criminals." l
The proceedings of his government had not been
marked by zeal ; but in June 1862, a really searching
investigation was commenced. 2 Two of the local officials
were removed 3 and eleven more persons accused. Still,
the British Envoy (Christie) was not satisfied, and the
Marquis d'Abrantes may almost be excused for observing :
" From Mr. Christie's language, the inference is that
Mr. Vereker's 4 information is alone to be trusted, whereas
that gentleman's infallibility respecting the discovery of
crimes, such as those in question, may without injustice,
as Mr. Christie knows, be contested." B
Reprisals being resorted to in support of Mr. Vereker's
views, the Brazilians agreed to terms. Repudiating all
responsibility, they declined to arbitrate the amount,
and paid £3,200 under protest. 6
The other case, that of the insulted officers, they agreed
to refer to the arbitration of Belgium, and here their
evidence met with more credit. Belgium entirely exoner-
ated the Brazilian Government and its officials from any
blame whatever. The officers, according to their own
account, were in plain clothes at Tijuca on 17 June :
they were accosted by a sentry and violently taken into
custody, marched to Rio after a night in prison, and
put into a dirty cell there. There they spent another
night, being released on the 19th. The sentry repre-
sented them as drunken aggressors. Robert Bennett,
the proprietor of the hotel where they had dined, says
that they left it " singing merrily " : they had had
two bottles of Burgundy and one of cognac. The
1 54 S.P. 617, Taques to Christie, 19 April 1882.
a lb. 631. 3 lb. 670. 4 The Consul. G 54 S.P. 727.
â– Sec lite terms of protest, 54 S.P. p. 819, Moreira to Russell,
26 Feb. ;ui<l (p, 822) 2 March 1863. Earl Russell returned a
reply laying special stress on the refusal of the local authority
to hold ail immediate inquest.
CHAP. IV] H.M.S. FORTE 115
Austrian interpreter corroborated him. King Leopold
found ' that — " There is no proof that the struggle
arose out of the conduct of the Brazilian police, who
could have had no reasonable motive for interference.
The officers, when arrested, were not in the uniform of
their rank, . . . and could expect no different treatment
from any one else in similar circumstances. . . . The
official who released them ordered their enlargement at
the earliest possible moment, and in behaving thus was
actuated by the desire to spare those officers the un-
fortunate consequences which might necessarily have
followed according to law if the matter had been pro-
ceeded with."
Finding further that the imputation of drunkenness
made by the Prefect in an official report, was made merely
in the course of his duty to lay his view of the occurrence
before the authorities, the arbitrator held that " dans la
maniere dont les lois bresiliennes ont ete appliquees aux
officiers anglais, il n'y a eu ni premeditation d'offense, ni
offense, envers la marine britannique."
Admiral Warren's heroics about " most atrocious out-
rage," and " brutal assault," and the demands of Lord
Russell for the dismissal of the police ensign, and penalties
on the sentry and censure on the Rio police, were thus
discredited. Probably the affair originated in the sentry
mistaking a little hilarity for intoxication.
In point of fact, disagreements about the slave trade
lay in the background of the whole transaction. 2
Although we have elsewhere mentioned the complaints
against Greece which were made in and about 1850, it
is well to state shortly with some accuracy what they
were. 3 They are so often loosely referred to as " certain
outrages," that particularity is desirable. They come
under five heads.
1 53 S.P. 150.
2 See Lord Russell's despatch of 6 June 1863 to Mr. Eliot.
3 39 S.P. passim.
Il6 ILLUSTRATION [chap, iv
i. A boat from H.M.S. Fantome landed at an unaccus-
tomed place, in 1848, at Patras, and two of the crew were
alleged to have been communicating with bad characters,
and to have fled on a summons from the Greek patrol.
They were then arrested, and marched back to their boat.
What possible motive the patrol could have had for a
wanton arrest, it is not easy to see. No injury of the
slightest kind was sustained by the sailors. It seems to
have been a case of over-caution on the part of the Greeks,
and of over-sensitiveness on the part of the British. With
a little good-feeling, the absurdly trivial occurrence could
have been adjusted.
2. Ionians complained of judicial torture at Patras
and Pyrgos in 1846. One of them (Stellio Sumachi),
accused of stealing a watch, said that stones were laid
on his chest, while policemen jumped on them, and that
he was beaten cruelly. A medical report showed that no
marks were visible ; but Sir E. Lyons naively observed
that stones would leave no marks — ignoring entirely the
alleged bastinado " a la Turqne." But the notorious
fact that torture was employed by some Greek policemen,
and that the Nomarch of the district had just resigned, as
a protest, was a stronger ground for regarding the medical
report with suspicion. The Greek Government seems
here to have been clearly in the wrong in refusing to make
reparation : they declined to produce the originals of
various reports. Palmerston was quite justified in ask-
ing for a public inquiry. It was attempted to set up the
de< ree of a secret and inferior tribunal, absolving the
police, as conclusive. But this is one of the cases where
the judicial investigation was clearly of an unsatisfactory
kind ; obviously no security existed that the prosecution
adequately pressed. Two other Ionians were, in June
1847, imprisoned on a charge of displaying flags, contrary
to bye-laws. And two were beaten at Pyrgos. The former
was a perfectly Irivial case, and could give rise to no
reasonable complaint. The Pyrgos case the Greeks flatly
chap, iv] GREECE 117
denied; but much evidence to the contrary was produced.
Palmerston asked for £20 apiece for all four Ionians.
3. Six Ionian boats were plundered by robbers at
Salcina in 1847. The thieves seized the custom-house,
pillaged the boats and beat two of the masters. This
Greece could certainly not be responsible for, even though
it was represented as one of a series of piratical acts.
All that she could fairly be required to do, was to take
steps — not necessarily measures of celerity and vigour
— to introduce a better and more settled state of things.
4. Mr. Pacifico's house was mobbed, and his furniture
destroyed, at Athens in May 1847. The same considera-
tions apply to this case ; with the further remark, that
some of the persons concerned in the outrage were known,
and he could have sued them in the courts. Phillimore !
is of opinion that Pacifico's claim was " not of that
overwhelming character which alone could warrant an
exception from the well-known and valuable rule of
international law upon questions of this description."
5. Mr. Finlay's garden was encroached upon by King
Otho in 1836. Is it possible that the grant of a Greek
order to another Englishman, when " for literary eminence
there are English names connected with the literature of
the country known to all Europe " — on which occurrence
Mr. Finlay descants at much length 2 — may have had
something to do with his bringing forward this com-
plaint at six years' distance ? The ground annexed was,
according to himself, " of trifling extent." He would not
accept the legal valuation by two Greek commissioners.
Expropriation is a well-known thing, and is nowhere
regarded as a damage to property, requiring an indepen-
dent estimate. It may be a question whether it ought
not to be so. Mr. Finlay's argument was that the en-
croachment was always represented as, not expropriation,
but a despotic personal act of the King, and on that
account he forbore to press his claims until 1842.
1 International Law, II. 41. 2 39 S.P. 413, 415.
Il8 ILLUSTRATION [chap, iv
In the end, after reprisals had been in progress some
time, Mr. Finlay received £1,066 17s., Pacifico £500 for
personal injuries, the Salcina boats £200, the Ionians £20,
and Pacifico the balance of a sum of £6,403 10s., plus
an uncertain amount which proved to be quite insignifi-
cant (£150, instead of £21,2.95 demanded). An apology
was made for the conduct of the Patras authorities in
arresting the boat's crew.
Again, on the occasion of the attempt by Mazzinists to
descend upon Calabria in 1857, by seizing at sea a Sar-
dinian Rubattino steamer, the Cagliari (the Genoa-Tunis
packet), the Sicilian Government intercepted the vessel
(after she had landed the insurgents) and threw the
crew into prison — among them two British engineers.
Clarendon wrote ' — " As these persons are said to have
been actually employed on board the steamer Cagliari,
when that vessel was engaged in landing a revolutionary
party on the Neapolitan coast, H.M. Government do not
claim to withdraw them from the fair operation of the
Neapolitan law ; but at the same time H.M. Government
are entitled to demand that they shall have a fair and
public trial, with proper legal assistance to prepare their
defence, their legal adviser being chosen, not by the
government which accuses them, but by the Consular
Agent of their own government ; and unless there be
any positive and publicly known regulation which pre-
cludes prisoners confined before trial on such a charge
as that brought against these men (of which charge
the British Consular Agent ought to have a copy), from
communicating with their consul, then and in such case
H.M. Government have a right to insist upon the British
Consular Agent having free access to the prisoners for
the purpose of supplying their wants and providing for
their defence or (heir trial, which ought not to be un-
oeces »ai ily delayed."
h is submitted thai in this note again, secure in the
1 48 S.P. J45, Clarendon to Burbar, 8 Oct. 1857.
CHAP, iv] THE CAGLIARI Iig
moral and material weakness of the Sicilian King, Lord
Clarendon overstepped the boundaries of accuracy.
He requires : —
(i) Publicity.
(2) Counsel.
(3) Independent advocacy and advice.
(4) Consular access.
It is submitted that International Law confers on a
nation no right to dictate the methods of its criminal
procedure to another. Nor is it easy to understand why
the claim of consular access is made subject to there
being no well-known provision of the local law to the
contrary. There seems some confusion here between
the substantive and the adjective criminal law. A
foreigner may well complain of being penalized for break-
ing an unknown law. He cannot decently complain of
being tried in a legal but unusual way. In point of fact,
the seclusion of the untried prisoner was both legal and
usual in Naples. Publicity and the free choice of an
advocate were in accordance with the Neapolitan law.
On the reply of Comm. Carafa, establishing these facts,
Lord Clarendon, somewhat nonplussed, consulted Sir
J. D. Harding, Q.A. That authority ' could not say
that the Neapolitan law was otherwise than as stated,
and remarked that in strict law there was no legal right
of access of the kind contended for, in England. Lord
Clarendon's next note 2 was couched in much milder
terms, and only objected to the indefinite detention of
the prisoners and demanded that Park might be visited
by a relation, in accordance with the law of Naples.
Three days later 3 he wrote personally to Comm. Carafa,
making the additional request for access by the Acting
Consul, but apparently as a matter of favour. Such
access had then been conceded. Meanwhile, the Law
1 48S.P. 351.
2 lb. 353, 11 Nov. 1857. And see a further opinion, ib. 368,
9 Dec. 1857. 3 lb. 359.
120 ILLUSTRATION [chap, iv
Officers of the Crown had given an opinion respecting
the jurisdiction of the Neapolitan sovereignty to try
these persons at all. 1 Sir J. D. Harding, Q.A., and Sir
H. S. Keating, S.G., thought it had jurisdiction in any
event ; Sir R. Bethell, A.G., thought that it had, if the
capture was effected in Neapolitan waters or by volun-
tary surrender. The opinion drafted by the Attorney-
General is of great precision and clearness, and it ends
by saying with regard to the trial — " The Government may
justly protest against any unnecessary cruelty in the
treatment of the prisoners, and has a right to interfere
to see that their trial is fair and just."
Such generalities do not carry us very far. The matter
of jurisdiction was pursued at length, and a further
opinion of the Queen's Advocate and the Solicitor-
General 2 deals with the points newly raised by the
Foreign Office. Were the British engineers bound by
the Sardinian captain's surrender ? Could it be called
a voluntary surrender at all ? And if not, were the
Neapolitans justified in capturing a Sardinian ship on the
high seas ? These were flimsy questions, and one wonders
who invented them. The Law Officers had no difficulty
in deciding (i) that the men were bound by the acts
of the captain ; (2) that the ship did not purge her
piratical offence 3 by landing the insurgents, but remained
subject to be dealt with by the Neapolitan forces on the
high seas ; (3) that, in any case, the Sardinian Govern-
ment was alone entitled to protest.
The Sardinian Government did protest, on the ground
that the piracy could be separated from the ship, and
that after the insurgent.-, had left her the Neapolitan
Crown had no more jurisdiction. They claimed the
release of the prisoners and the rendition of the vessel,
which had been condemned as a prize.
1 48 S.P. .^75, 21 Dec. 1857. 2 /k 378( j jan, I( s 5 ,s.
3 Sec 011 tins point ii>. 388, Hudson to Clarendon, 17 Jan. 1858;
* b - 393. Cavour to Gropcllo, 16 Jan. 1858.
chap, iv] NAPLES 121
The British Law Officers ' declined to concur in the
Sardinian view. Their opinion (in which Sir R. Bethell
participated, and which is marked by vigour and lucidity)
declared that the Prize judgment could not be contro-
verted, in the absence of conclusive evidence of impro-
priety. Carafa had no difficulty in replying to Sardinia
by a reference to the case of the Carlo Alberto. " All
hostility caused by a vessel, though she be protected by
the flag of a friendly power, confers a right to capture
the said vessel, to whatever place she may be pursued." '-
Cavour retorted that the Carlo Alberto was captured in
territorial waters. 3
Watt and Park were on arrest subjected to consider-
able indignities (undressing, jeering, ironing), 4 and were
for a time (three months) subjected to most unhealthy
incarceration. They were refused from 27 June (when
captured) to 24 Nov. — five months — leave to see the
consular officer. Watt's reason gave way under his
apprehensions, and he was then (March 1858) released
and permitted to leave the country ; whilst Park was
ultimately also discharged. The Neapolitan Govern-
ment was induced to pay £3,000 compensation : which
does not seem excessive if the principle was admitted.
The prolonged detention of the men before the public
trial was not without parallels in England. In point of
fact, the real trial, in accordance with Continental pro-
cedure, was proceeding all the while. The insanitary
state of the jail was a more serious point ; but the en-
gineers were better treated than ordinary Neapolitans,
and it is difficult to say that there was any flagrant cruelty
in not providing special accommodation for them. The
real gravamen of the complaint was that there was prac-
1 48 S.P. 392, 5 Feb. 1858. See a further opinion of the Queen's
Advocate (11 Feb. 1858), ib. 400.
2 Sc, "not within friendly territory" — see ib. 413.
3 Ib. 427, Cavour to Gropello, 18 March 1858.
4 Details at S.P., loc. cit. 452.
122 ILLUSTRATION [chap, iv
tically no evidence against the men. It was only the
exaggerated apprehensions of the Neapolitan Government
that insisted on treating as dangerous criminals the
foreigners who happened casually to be employed on a
ship which was made the instrument of a piratical ad-
venture. The two elements combined — the flimsiness
of the charge, and the rigorous character of the detention
— must be considered as having constituted the ground
on which compensation was claimed and paid. Innocent
persons had, without any sensible reason, been sub-
jected to the severe treatment which the Neapolitan
administration, rightly or wrongly, applied to suspected
criminals.
The stupidity of the Neapolitan regime is more con-
spicuous than anything else. The immediate and hand-
some release of the engineers could not have harmed the
kingdom, and it would have had the best moral effect.
The Law Officers 1 had advised 2 that compensation could
be claimed : — " We are of opinion that there is no ground
whatever which justifies the Neapolitan Government
in having subjected Park and Watt to this prosecution
or in having inflicted upon them, as malefactors of the
worst class, a long and inhuman imprisonment." So far
as the point of jurisdiction was concerned, Sir J. Harding
again found a Solicitor-General to concur with him in
differing from the Attorney-General. Their opinion
gives the best connected history of the transactions,
from which it is to be gathered that some of the Cagliari's
crew landed and were wounded with the insurgents.
The only alternative, they point out, to the ship's seizure
— her immediate dismissal on the high seas — might have
allowed the real criminals to escape and commit fresh
piracies. If the Sardinian doctrine were to be supported,
pirates need only obtain possession of a duly documented
vessel, in order to secure perfect immunity.
' Harding, Kelly and Cairns. 2 48 S.P. 463, 12 April 1858.
3 II). 465. Sec Sir Fitzroy Kelly's at p. 484 loc. cit.
1
chap, iv] WAR-DAMAGK TO NEUTRALS 123
Carafa ' appears to have admitted the right of the
foreigners to a " speedy, regular and public " triah
In 1849, British subjects settled in Tuscany asked on
the ground of war-damage for indemnities from that
Duchy and from Austria. Tuscany was willing to refer
the affair to Russian arbitration ; but Russia was of
opinion that there was nothing to found an arbitration
upon, and declined to entertain the matter. 2 Prince
Schwarzenberg had declared 3 his surprise that any
state should ask for its citizens more advantages and
greater privileges than the inhabitants of the country
themselves. A foreigner who goes to a country where
civil war breaks out must take the consequences. Count
Nesselrode entirely concurred. ' S'il n'en etait pas
ainsi, la presence des sujets anglais au milieu des autres
nations, deviendrait un veritable fleau, et servirait d'instru-
ment aux revolutionnaires de tous les pays pour creer
des embarras au gouvernement de chacun d'eux." And
of course the same reasoning applies to reactionaries.
During the temporary alienation of Naples from
Austria, in May 1848, a Neapolitan squadron was detached
to attack Trieste, and it was joined by the Sardinian.
The interposition of the British authorities was urgently
invited, owing to the danger to British property in that
town. The commander of H.M.S. Terrible told the
Austrians that all he would be justified in doing was to