Rassegna storica del Risorgimento

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Nick Carter
his vessel into the custody of the Neapolitan frigates. Only if it were clear that the Cagliari had been forcibly captured when on the high sea could the English govemment lawtully demand the delivery up of the two engì-neers.12)
Undeterred, Clarendon put the case again to the Law Officers on Christmas Ève. How, he asked could the surrender of the Cagliari be called a voluntary act, given that the Neapolitan frigates had fired to bring the Cagliari to, and had been prepared to sink her if she did not surrender? Though prepared to accept that in strictly legai terms the Cagliari had been given up by its captain rather than seized by the Neapolitans, Clarendon questioned the right of the Neapolitan courts to try Watt and Park. What if it could be proven that the two engineers had not been party to the cap-tain's decision to surrender, and had, in fact, been taken to Naples against their will? If such was the case, Clarendon suggested, might not the English govemment contend that the act of surrender was not binding on Watt and Park and consequendy that the Neapolitan govemment had no right of ju-risdiction over them?13)
Clarendon did not merely limit his opinions to his own legai counseL Before receiving a reply from the Law Officers to the note of 24 Decem-ber, Clarendon instructed Hudson, the English minister at Turin (29 De-cember) to ask Cavour whether Piedmont intended to object to the pro-ceedings taken by the Neapolitan govemment in the Cagliari affair on the grounds that the capture had occurred outside Neapolitan waters. Claren­don wrote:
A shìp of war of one country has no jurisdiction over a merchant-vessel of another country on the high sea; she is entitled to demand the production of pa-pers to prove nationality; but if that character is established, the ship of war has no righf to interfere, unless the merchantman should be caught in the actual commis-sion, at the urne, of an aet of piracy. But no such act was committed at the tene by the Cagliari [...]
It is trae that the captain and crew are stated to have been on their way to Naples, with the view of voluntarily surrendering themselves [...] but it appears to Her Majesty's Govemment that it would be a mockery and an abuse of terms, to say that these men voluntarily surrendered themselves to the two Neapolitan frig­ates [...]
Her Majesty's Govemment would, therefore, be glad to learn whether the Sardinian Govemment is of the opinion that the Cagliari was voluntarily surren­dered by the master; or whether that Government is prepared to contend that she was seized by the Neapolitan frigates beyond the limits of the intemational juris­diction of Naples.14)
t2ì Draft Opinion of the Artorncy-Gcncral, indosed io Law Officers to Clarendon, 21 December 1857, ivi, pp. 63-64.
'3) Hammond to Law Officers, 24 December 1857, ivi, p. 67. > Clarendon to Hudson, 29 December 1857, ivi, p. 68.