1809.

DUCKWORTH

v.

TUCKER.

acts do not comprehend all cafes even of captures effected by a British force. They only diftribute the property which the king would otherwife acquire jure corona, they confer no right to that which accrues as a droit of admiralty: and it has been decided that if a prize be made by two captors, one of whom has no title under the prize acts, the other does not therefore acquire the whole, but the share accrues to the king as a droit of the admiralty. 2 Robinson, 284. n. The Twee Gefufter, a Dutch fhip, was chafed by two armed cutters, the Providence and Spitfire, each manned with 16 men, (the Providence being commiffioned, and the Spitfire not commissioned, against the Dutch;) the Providence first reached the prize, the Spitfire fhortly came up, and immediately afterwards the prize was feized by the Providence and the Spitfire; the mafter of the Spitfire was put on board, and conveyed her to Dartmouth. The Court of Admiralty having pronounced the Providence to be the captor, but that the Spitfire was aiding and abetting, and having decreed the Spitfire to take the half she would have been entitled to in cafe fhe had been commiffioned against the Dutch, an appeal was made on the part of the Providence: the king's proctor intervened, and prayed that the share of the Spitfire might be condemned as a droit of admiralty: the lords of appeal pronounced for the interest of the king in his office of admiralty, and condemned the prize as taken by the private ship of war the Providence, and the non-commiffioned fhip the Spitfire; and directed the fame to be shared in proportion accordingly. 2 Robinfon, 285. n. The Le Franc, a French East India ship, was taken by the Glatton, which had no letter of marque, and fix other British Eaft Indiamen commissioned as private fhips of war, in which capture the Glatton very effentially co-operated: the proctor of the admiralty appeared for the king in his office of admiralty, praying that fuch proportion of the prize as would have been condemned

12

demned to the Glatton, if fhe had been a commiffioned hip, might be pronounced liable to confifcation to the king in his office of admiralty, as a droit and, erquifite of admiralty. The Court condemned the prize as taken by the fix private fhips of war and the Gatton, but concondemned the Glatton's fhare as a droit and perquisite of admiralty. The case must be the fame whether the prize be taken by the co-operation of a non-commiffioned English fhip or by that of a foreigner: and whether the Marquis de Niza be entitled or not, a deduction from the plaintiff's share must be made in respect of the force of the noncommiffioned veffels brought into the combat by the Marquis de Niza.

1809.

DUCKWORTH

บ

TUCKER

In the year Dutch and

Arguments for the Plaintiff in reply.-The claim which has been infifted on as accruing to the Marquis in the character of a British admiral cannot be supported, not because he was a Portuguese, for that would be no obftacle, but because he was not in the pay of Great Britain; which circumftance alone is conclufive that he can take no benefit under the prize acts. 1745, the Dutch and English fleets having made fome English fleets conjoint captures, which were reduced into the poffeffion joint captors, cafe of, in 1745° of England, the privy council referred it to the law offi cers of the crown to say, whether under the prize as and proclamations a fhare of the proceeds could be diftributed to the Dutch fleet, which the privy council themselves inclined to think was the proper courfe; but the law officers were of opinion, that as the act of parliament referred only to fhips of war in his majeft's pay, and privateers, that mode of divifion under the proclamation was not advifable, and that the proceeds fhould be delivered over to the Dutch to be divided by the ftates general; but that if the Dutch hips had had English letters of marque, the divifion might have been made under the proclamation. And although the opinion of the law officers is no authority, it fhews what the practice has heretofore been.

The

1809.

DUCKWORTH

V.

TUCKER.

The conceffion that in certain events thefe Portuguese veffels might have fhared in the prizes, is in no measure prejudicial to the Plaintiff. But to entitle them, there must be an actual co-operation: Did that exilt here? In the cafe of the Cape of Good Hope, 2 Robinfon, 282. it was held, that to entitle veffels to a fhare in the prize, there must not only be an actual intimidation produced on the minds of the enemy, but that the claimants must have had at the time the consciousness of that effect, and the intention of producing it; and that a fleet of Indiamen, whofe appearance effentially contributed to the reduction of the enemy, being unconscious of the affiftance they gave, were entitled to no fhare of the fpoils: there was no intention or confcioufnefs in the Marquis de Niza of auy co-operation at the time of either of these captures, which were made in a part of the Mediterranean very diftant from him. If this can be confidered as actual and pofitive affiftance, the flipulation that the Portuguefe admiral fhould be fo employed as not to give offence to Spain was nugatory; for according to the conftruction contended for, he as much annoyed that nation. by every fail that he fet, as he could do by actually pointing his guns at their fortreffes. The rule has been established between British claimants, (and although the queftion has rarely or ever occurred between claimants of different nations, the fame rule must prevail between them,) that if a veffel is within hearing of the guns when another takes a prize, fhe fhall be confidered as aiding and abetting; but the Marquis de Niza does not establish even that degree of co-operation; his only merits are that the capture was made within the limits of the fame fea; and the Spanish capture was not in fact made in the Mediterranean, though it was within the limits of the Mediterranean ftation, which is now extended as far as Cape Finisterre. In the cafe of the Forfigheid, 3 Robinson, 317., upon the question whether a fquadron

fquadron,which had been fent out from the main fleet with orders to keep within fignals, were fole or joint captors, Sir William Scott thus exprcffes himfelf: "The whole cafe "is reduced to this point, whether these ships are to be "confidered as detached or not? Detached, I mean, in "the fame manner as detachments are ufually made, for "fome diftinct and feparate purpose, which, though "poffibly connected with the main fervice, carries them "out of the scene of common operation for the time? "or whether they were fent only on the look-out, to "preferve their connection with the fervice of the fleet, "and maintain their dependance on it? To determine "this question, I must look to the orders that were

given they direct them to watch well the motions "of the enemy, to cruize between certain points, joining "the fleet occafionally for communication.' If they "ftopped here, I fhould be inclined to hold that it was " a separate service, with orders to join again: but they "go on,-directing them to avoid being at fuch a "diftance, as not to obferve the fignals that were made. "It is impoffible, under these terms, to fay that it was "a detached fervice." It is here admitted, that if they had been fent on a detached fervice they would have been the fole captors. But whatever may be the merits of the claimant, it is in vain for him to infist on them here. He can recover nothing through the medium of the prefent proceedings: he muft refort to the Court of Admiralty to eftablish his claims. Neither Lord St. Vincent, if he had commanded an inferior force, and the prizes taken had been reduced into the poffeffion of the Portuguese admiral, nor Admiral Macbride, claiming against the crew of the Ratizan, could have maintained an action in the common law courts of this country, for any share of their respective prizes. It is faid that although this money might not belong to the Marquis de Niza, it does not neceffarily belong to the Plaintiff, becaufe

1809.

DUCKWORTH

บ.

TUCKER.

1809.

DUCKWORTH

V.

TUCKER.

caufe it might be a droit of admiralty. The diftinction between the two fpecies of prize was laid down in an order of council (a) made in confequence of a difpute between the king and the Duke of York, afterwards King