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to cooperate with him. In serving his country, every captor would be left in uncertainty, whether some person whom he never saw, and whom the enemy never saw, might not be entitled to share with him in the rewards of his labor. The great intent of prize is to stimulate the present contest, and to encourage men to encounter present fatigue and present danger; an effect which would be infinitely weakened if it were known that there might be those not present, and not concerned in the danger, who would entitle themselves to share.
"What is the true criterion in these cases? The being in sight, or seeing the enemy accidentally a day or two before, will not be sufficient; it must be, at the commencement of the engagement, either in the act of chasing, or in preparation for chase, or afterward, during its continuance. If a ship was detached, in sight of the enemy, and under preparation for chase, I should have no hesitation in saving she ought to share. But if she was sent away after the enemy had been descried, but before any preparations for chase, or any hostile movements had taken place, I think it would be otherwise. There must be some actual contribution of endeavor, as well as a general intention."
The ship Odin was captured off St. Helena by Doctrine of boats sent from the British ship of war Tlie Trusty. SsktanaTaa A claim to share in the proceeds of the prize wa^ ^.'.^"^ate made on behalf of The Royal Admiral, a private armed vessels, ship of war, on the ground that her boats, which had down, been sent out from the harbor of St. Helena to aid in effecting the capture, were in sight when the capture was in fact made by the boats from The Trusty.
Lord Stowell said: "I know of no case that would sustain such a claim. The principle of constructive assistance has been thought to have been carried somewhat far, and the later inclination of courts of justice has been rather to restrain than extend the rule. Between private ships of war and king's ships, the rule of law has been always held more strictly, and it has not been the doctrine of :he admiralty to raise constructive assistance so easily between them as between king's ships. If the competition had been between two king's ships, it would, in my opinion, be highly questionable, whether a boat so sent out, could support a claim to share, on the mere principle of being in sight. There is, I think, a very solid ground of distinction between the claims of a boat in the different cases of an actual and a constructive capture. Where a boat actually takes, the ship to which it belongs, has done, by means of this boat, all that it could have done by the direct use of its own force. In the case of mere constructive capture, the construction which is laid upon the supposed intimidation of the enemy, and the encouragement of a friend, from a ship of war being seen, or within sight of a capture, applies very weakly to the case of a boat, an object that attracts little notice upon the water, and whose character, even if discerned by either of the parties, may be totally unknown to both.
"More unreasonable still would this be upon actual captors, if the constructive co-operation of such an object would give an interest to the entire ship to which it belonged. Where a ship is in sight, she is conceived to co-operate in the proportion of her force. But what room is there for such a presumption where she co-operates only by the force of her boat?
"I am of opinion, both on principle and authority, that where no antecedent agreement is proved to have taken place, a vessel lying in harbor, cannot be entitled to share in a capture made out of the harbor, by the circumstance of her boat being merely in sight."1
The distinction between public and private armed 71,9 ruleships of war with reference to claims as joint-captors, alluded to by Lord Stowell in the case of The Odin, is more distinctly laid down by him in another case, in which the claim was made on the part of two privateers, The Lark and General Coote, to share in the prize of the public ship of war The Gannet? He says:
"The rule of law on this subject, which has long been established in this court and the Court of Appeals in various cases, is, that it must be shown on the part of the privateers that they were constructively assisting.
"The being in sight is not sufficient with respect to them, to raise the presumption of co-operation in the capture. They clothe themselves with commissions of war, from views of private advantage only. They are not bound to put their commissions in use on every discovery of the enemy, and therefore ^h0eTM^onBof the law does not presume in their favor, from the mere circumstance of being in sight, that they were
'The Odin, 4 Rob., 318; vide also La Belle Coquette, 1 Dod., 18; The Nancy, 4 Rob., 327; The Vryheid, 2 Rob., 16; The Jfiemen, 1 Dod., 16.
'The Amitie, 6 Rob., 261.
there with a design of contributing, assisting, and engaging in the contest. There must he the animva cap/end/', demonstrated by some overt act, by some variation of conduct, which would not have taken place but with reference to that particular object, and if the intention of acting against the enemy had not been effectually entertained."
Again, in another case,1 with reference to king's ships, Lord Stowell said:
"They are under a constant obligation to attack the enemy wherever seen; a neglect of duty is not to be presumed, and therefore, from the mere circumstance of being in sight, a presumption is sufficiently raised, that they are there, animo capiendi. In the case of privateers, the law does not give them the benefit of the same presumption. Ships of this description go out very much on speculation of private advantage, which, combined with other considerations of public policy, are undoubtedly very allowable, but which do not lead to the same inference, as that which the law constructs on the known duty imposed on king's ships. A privateer is under no obligation to attack all she rheets, but acts altogether on views of private advantage. She may not be disposed to engage in every contest, and therefore the presumption does not arise in any instance, that she is present animo capiendi.
"A contrary route, if proved, would defeat the claim of a king's ship, but if nothing appears on the one side or the other, as to that fact, the mere presence would, I think, be sufficient to entitle the king's ship to the character of a constructive captor."
1 La Flare, 5 Rob., 268.
A case already cited,1 establishes the principle, that in a case of joint-capture, grounded on the being in sight, it is necessary that the claiming vessel should have been seen by the actual captor, and also by the captured vessel, one of which facts, must be established by evidence other than that of the claiming vessel, and the other by implication and necessary inference.
When two vessels are associated for the pur- Joint-enter
. 1 prise as afiect
pose of effecting a capture, the continuance of the ing question or
x. • re • . i • .1 • !• n • • ■ ■ construotivi)
chase is sufficient to give the right of joint-capture, assistanoe. and the being in sight at the time of the capture is, under such circumstances, not essential.2
It has been determined also, that ships are entitled as joint-captors, that have been in chase during the day, and continuing the pursuit in a proper direction, that is, in the direction taken by the prize, although prevented by darkness from seeing the actual capture, or by the thickness of an intervening fog, or an interposing headland, at the moment of surrender, because the impulse and impression in the mind of the enemy who is to be intimidated, or of the friend who is to be encouraged, continue in full force, and thus support the principle on which the doctrine of constructive assistance is based.'
As to rights of revenue-cutters to be joint-captors, in a case involving the question,4 Lord Stowell says:
"It is a known rule of law, that the mere fact Rtahtf,°freTM
of being in sight would be sufficient to entitle a joim-captora.
1 The Faderlzndt, 5 Rob., 120. » The Fortighcid, 3 Rob., 316. ■ UEtoilf, 2 Dodson, 106. . 4 The Bellona, 1 Edw., 64.