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king's ship, because in ships fitted out by the state, for the express purpose of cruising against the enemy, the animus capiendi is always presumed— but this presumption does not extend to privateers. In the one case, the duty is obligatory, in the other where private individuals make captures at their own expense, they are engaged in a mere commercial speculation, to be carried into effect by military means, but dependent upon their own will in the particular acts and exercises of their authority. Although they are authorized they are not commanded to capture. It is a matter in which they are left to their own discretion. But these vessels employed in the service of the revenue, are a class of ships of an anomalous kind, partaking in some degree of both characters. They belong to the government, and are maintained at the public expense, but not for the purpose of making captures from the enemy. On the other hand, they have commissions of war, but these are private commissions, which impose no peculiar duties upon them. They are not bound to attack and pursue the enemy more than other private ships of war—and they are likewise unfavorably distinguished in this respect—that the advantages of capture are not held out to them, the interest in all captures made by them being reserved to the crown.
"Primarily, their duty is to protect the revenue, and the capture of the enemy's vessels is engrafted on the original character. All they derive from these commissions, is, an authority to attack the enemy, in addition to other authorities that belong to their original and proper employment; on principie, therefore, they can only be considered as private ships of war.
"They are under no injunction to cruise against the enemy, and are employed generally for fiscal purposes. It is true that there is the addition of a military commission in time of war; but that does not designate them anew, it merely puts them on a footing with other private ships of war."
A private ship of war made claim as joint-captors to share in the prize of a valuable Spanish galleon, taken by The Triton frigate, on the ground that she was not in sight at the time of the capture, but had placed herself in such a position as to be effectual in cutting off the retreat of the galleon into a friendly port.1
Lord Stowell said: "The being in sight will not be sufficient; it would open the door to very frequent and practicable frauds, if, by the mere act of hanging on upon his majesty's ships, to pick up the crumbs of the captures, small privateers should be held entitled to an interest in the prize which the king's ships took."
A Spanish register ship of eight hundred tons and twenty-six guns (twelve-pounders), was taken on the 29th of November, 1799, by The Hussar, Captain Salter. The Resolution, a privateer of sixteen six-pounders, put in a claim of joint-capture, and it was allowed, on the ground of highly meritorious gallantry and perseverance in keeping the prize in chase, from the 5 th to the 20th of November; of having fought her several times, notwith
1 The Santa Brigada, 3 Rob., 52.
standing the great disparity of force; and having kept constantly up with her, burning false lights, etc., during the night, to attract the notice and assistance of some British cruiser.
In a case where it appeared that one of two joint-chasers had been ordered to pick up the boats of the other, and by reason of the delay occasioned by the performance of this service, had lost sight of the prize, and a third ship came up and made the capture, it was held that no right existed to share with that ship.1
Lord Stowell said: "To obey the lawful commands of their superiors, is the first duty of the king's officers, and views of mere private advantage are of secondary consideration only, and must give way to the imperative requisitions of the public service."
In support of the blockade at Malta, in 1800, the British national ships of war, Cvllodm and Northumberland, were stationed at different ports. They preferred a claim as joint-captors, which was resisted on the ground that they had been unable to take actual part in the capture, in consequence of unfavorable weather.*
In the opinion of the court allowing the claim, Lord Stowell says:
"It is objected that they had not the physical means of pursuing, because the state of the wind was such that they could not quit the bay.
"Whether they would have pursued if it had
1 The Financier, 1 Dod., 67.
5 The Guillaume Tell, 1 Edw., 112.
been physically possible, it is not necessary to inquire. In the case of chasing by a fleet, the animus persequendi in all, is sufficiently sustained by the act of those particular ships which do pursue. It is, I think,highly probable, that even if the wind had been fair, the Oulloden and .Northumberland, as some of the other ships off Valetta did, would have remained in a state of inactivity, reasonably judging from the precautions taken, and from the flashes of the guns, that a sufficient force had already gone upon the service. Therefore, unless it can be maintained, which it certainly cannot, that the whole of a squadron must, in all cases, pursue, and that the other ships which remain inactive off Valetta are not entitled to share, upon what principle are these two ships to be excluded? But it has been urged, as the wind then was, ships of their burden could not have cleared the shoals so as to get out; and it comes, therefore, to a question of law, whether such an intervention of physical impossibilities will exclude a ship from being held part of a squadron associated for the express purpose of making the capture. There have been cases in which it has been held that physical impossibilities of some permanence, and which could not be removed in time, would have such an effect; as, for instance, in the case of a ship lying in harbor, totally unrigged, which has been held to be as much excluded as one totally unconscious of the transaction, because, by no possibility could that ship be enabled to cooperate in time. But I take it, that in no case, the mere intervention of a circumstance so extremely local and transitory as the accidental state of the wind, has been made the ground of exclusion. The interests of joint-captors would be placed on a very precarious and uncertain footing, if a doctrine were admitted, which referred them to the legal operations of a casualty so variable in itself, and so little capable of being accurately estimated.
"It being proved in this case, that the whole fleet were acting with one common consent, upon a preconcerted plan, for the capture of this prize, it was as much a chasing from the orders of the officer in command, as if it had actually taken place in open sea. It was a chasing by signal, and in sight of these two ships; which, even if they had not been incapacitated by the state of the wind, in all probability would not have thought it necessary or proper to join in the pursuit.
"The cases which have been cited are very different from this. The Genereux (Lords, May 7 th, 1803) was captured upon the coast of Sicily, at the distance of twenty-two leagues from Malta, by a part of the squadron which was sent to look out for her, while the rest kept their station off Valet ta; there was no sight, and the utmost they could bring the case up to was, that a firing of the guns was heard by one of the stationed ships.
"In the case of the Mars, there was neither sight nor association ; and in the Frantrnansdoiff (Lords, 1st August, 1795), there was the same effect of a want of association.
"Now, in this case, there was not only an actual sight, not only a perfect conusance of what was going forward, but as complete, and uniform, and persevering an association in this particular object, as well as in the general object of the blockade, as can be imagined. I am therefore of opinion, that