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"not having contributed actual service, are still sup posed to have rendered a constructive assistance, either by conveying encouragement to the captors, or intimidation to the enemy."
Who are entitled to be considered joint-captors is a question of exceeding interest and importance. Like most other questions in the law of nations, Doctrine of as affecting; commercial interests during war, it will
constructive ° • t
assistance dis- be found nowhere so learnedly considered and '^ illustrated as by the invaluable opinions of that great luminary of this law—Lord Stowell.
He says:1 "The benefit of prize is given to the takers, by which term are naturally to be under stood those who actually take possession, or those affording an actual contribution of effort to that event; either of these persons is naturally included under the denomination of takers, but the courts of law have extended the term takers to another description of persons; to those who, not having contributed actual service, are still supposed to have rendered a constructive assistance, either by conveying encouragement to the captor, or intimidation to the enemy. Capture must therefore be divided into capture de facto and capture by construction.
"Capture by construction must remain on the terms the law has already recognized, and not a new unauthorized construction—for as the word has already traveled a considerable way beyond the meaning of the act of Parliament, the disposition of the court will be, not to extend it still further, but to narrow it and bring it nearer to the terms of the act than has been done in former cases.
1 The Fry held, 2 Rob., 21.
The case of the Mars is a strong authority in point, in which the claim to joint-capture was not allowed to ships not in company, but stationed at different outlets to watch for the enemy, who were known to be under the necessity of passing through one of them.
"In all cases, the onus prohandi lies on those setting lip the construction, because they are not persons strictly within the words of the act, but let in only by the interpretation of those having authority to interpret it. It lies with the claimants in jointcapture, therefore, either to allege some cases in which their construction has been admitted in former instances, or to show some principle in their favor so clearly recognized and established as to have become almost a first principle in cases of this nature.
"The being in sight, generally, and with some few Vessels in exceptions, has been so often held to be sufficient to entitle parties to be admitted joint-captors, that where that fact is alleged, we; do not call for partio ular cases to authorize the claim—but where that circumstance is wanting, it is incumbent on the party to make out his claim, by an appeal to decided cases, or at least to principles, which are fairly to be extracted from these cases."
The Vestal frigate claimed to share in the proceeds of the capture of the Dutch fleet by Captain Trollope, in October, 1798, on the ground that although not taking part, or even in sight of the engagement, she was one of the ships under the captor's command on that station, and was only absent on the occasion, in consequence having been dispatched by him on a special mission.
In disallowing the claim, Lord Stowell said:
"There are no cases cited as being directly in point, but the case of The Senor San Josef (House of Lords, May 4, 1784), has been alluded to. That is a case which I perfectly recollect—having been concerned in arguing it—but it was, in its principal circumstances, entirely different from the present case. That was a case of two vessels detached from the fleet, under the command of Admiral Pigot, in the West Indies, to chase two strange ships appearing in sight, the fleet bearing up all the time as fast as possible to support them. The chasing vessels took the two ships first appearing, and also a third, on which the dispute arose. There was much contrariety of evidence whether the fleet, which was continuing to sail in the same direction, was not up and in sight, and the chief doubt arose owing to the night coming on, for if it had been day, the fleet would clearly have been in sight, and it was at all events known to be at hand, and ready to have given any support that might be wanting. Under these circums^mces, the Court of Appeals affirmed the sentence of the court below, pronouncing for joint-capture—and in that sentence it is, I believe, true, as it has been stated by the counsel, that some mention was made of the words joint-enterprise. But, taking the case together, it can by no means be said to go the length of the present claim.
"As far as cases go, then, there is an entire failure of authority on the part of The Vestal. But the usage of the navy has been resorted to, and a case has been cited of The Audacious, one of tbe fleet under command of Lord Howe, being permitted to share in the victory of the first of June, 1794.
"It is admitted, and it is certainly true, that the practice of the navy, in opposition to the words of the act of Parliament, or a proclamation, or to the established law, cannot weigh or be of any authority.
"At the same time, the court would be extremely unwilling to break in on any settled and received notions of the navy, or to disturb a practice generally prevailing among themselves. But the case cited is different from the present. The A udacious had actually engaged in the enemy's fleet, and had separated only in chase of one of their ships.
"The Canada, another case which has been mentioned, chased fr^pm the fleet, on signal, on the prize coming in sight. The Lawestoff, which is another case stated to have happened in the Mediterranean, was not detached from the Mediterranean fleet till after the chase had actually begun.
"The circumstances, therefore, materially distinguish these cases from the present; and I am at liberty to say, that no case in point or authority has been produced. Is there, then, any admitted principle? The gentlemen have resorted to the general principle of common enterprise, and it has been contended that, where ships are associated in a common enterprise, that circumstance is sufficient to entitle them to share equally and alike in the prizes that are made; but certainly that cannot be maintained to the full extent of these terms. Many cases might be stated in which ships so associated would not share. Suppose a case that ships, going out on the same enterprise, and using all their endeavors to effectuate their purpose, should be separated by storm or otherwise, who would contend that they should share in each other's captures \ There is no case in which such persons have been allowed to share after separation, being not in sight at the time of chasing. It cannot be laid down to that extent; and, indeed, it would be extremely incommodious that it should. Nothing is more difficult than to say precisely where a common enterprise begins. In a more enlarged sense, the whole navy Of England may be said to be contributing in the jointenterprise of annoying the enemy. In particular expeditions, every service has its divisions and subdivisions. Operations are to be begun and conducted at different places. In the attack of an island, there may be different ports, and different fortresses, and different ships Of the enemy lying before them.
"It may be necessary to make the attack on the opposite side of the island, or to associate other neighboring islands as objects of the same attack. The difficulty is, to say where the joint-enterprise actually begins. Again, is it every remote contribution, given with intention or without intention, that is sufficient? I apprehend that is not to be maintained. An actual service may be done without intention; or there may be a general intention to assist, and yet no actual assistance given. Can anybody say that a mere intention to assist, without actual assistance, though acted upon with the most prompt activity, would, in all cases, be sufficient? If persons, under such claims, could share, there would be no end to dispute. No captor would know what he was about; whether, in every prize he made, there might not be some one, fifty leagues distant, working very hard to come up, and even acting under the authority of the admiralty,