of the transaction, because by no possibility could that ship be enabled to co-operate 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 a ground of exclusion. The interests of joint captors would be placed on a very precarious and uncertain footing indeed, if a doctrine were to be 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 under orders from the officer in command, as if it had actually taken place in the 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 were very different from this; The Généreux (Lords, 7th May, 1803) was captured upon the coast of Sicily, at the distance of 22 leagues from Malta by a part of the squadron which were sent to look out for her, while the rest kept their station off Valetta; there was no sight, and the utmost they could bring the case up to was, that a firing of guns was heard by one of the stationed ships. In the case of The Mars there was neither sight nor association, and in The Trautmansdorf (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 objects of the blockade, as can be imagined. I am therefore of opinion, that The Culloden and The Northumberland are entitled to share, and that the same right will extend to the other ships which remained off Valetta, although they have not made themselves parties to this suit."

On the other hand a claim on behalf of H. M. S. Leda, sent forward to the coast of South America to obtain information before the expedition to Buenos Ayres had been finally resolved upon, and quitting the station before the armament arrived, but returning six days after the capture of that settlement, was held not entitled in virtue of antecedent or subsequent services. (Buenos Ayres, 1 Dod. 28.)

In the case of The Robert (3 Rob. 194), an attempt was made to establish joint capture, from the circumstance of the claiming vessel, The Defence, having been in sight from the mast-head of the captor. Lord Stowell said: "I am not aware of any one instance in which the court has pronounced for a joint capture, on being in sight only from the mast-head. I do not say that such a case would be entirely and absolutely out of the reach of the principle on which the being in sight is admitted to constitute an interest of joint capture; but this may be safely affirmed, that if the court was to pronounce for such a claim on such evidence, it would be in all respects a very extreme case indeed."

Upon the capture of the island of Trinidad, a question arose as to the right of H. M. S. Alfred, Dictator, Bittern, Zephyr, and Pelican, to share in the property taken upon land, and in the capture of

one vessel, and in the distribution of bounty, for the destruction of others. The claim depended on the evidence as to being in sight; and Admiral Harvey, who commanded the British squadron, had expressed an opinion that these vessels must have been in sight the evening before the enemy's ships were set on fire, and The San Damaso was taken. Lord Stowell said: "The grounds of this opinion appear to be perfectly rational and just, and, if supported on the part of the vessels themselves, they might have been very material. But the court is bound to expect, that the being in sight should be proved by some direct evidence applying to the fact, and not merely by opinion, formed upon the conjectures of any persons, however respectable they may be. It is said that they heard the explosion. But it is a common phrase, not more contemptible for being common, that hearing is not seeing. The explosion of such a body as a ship of war would be heard to a stupendous distance. It is a well-known fact, that, in the famous battle in the Downs, the explosion was heard in St. James's Park, and was made the foundation of a mathematical calculation by Sir William Petty, with respect to the velocity of the progress of sound. So, with regard to the conflagration, the atmosphere would be illuminated to a prodigious distance; but it would be ludicrous to say, that all who were within the reach of these appearances, produced by the fire, are to be taken in law as present at the occurrence itself."

In the case of The El Rayo (1 Dod. 42), a Spanish man-of-war, taken three days after the battle of Trafalgar, by H. M. S. Donegal, H. M. S. Leviathan was not admitted to share in the capture, The Leviathan being employed in taking care of other ships and prizes

captured in the battle, and her attention being also directed to the movements of The Monarch, another Spanish ship.

Actual intimidation alone, without co-operation and active assistance, will not establish a claim of joint capture. Upon the claim of certain East India ships employed to carry a number of troops to the Cape of Good Hope, to share in the capture of that possession in 1795, Lord Stowell said: "If they had been associated to act in conjunction with the fleet, and did so act, they might acquire an interest which, on proper application, would be sure to meet with due attention. The question for me to consider then will be, whether they have acquired that military character or not? Their pretensions have been put forward on several grounds. It is first said, that they were associated with the fleet. Mere association will not do; the plea must go farther, and show in what capacity they were associated, and that capacity must be directly military. Transports are associated with fleets and armies for various purposes connected with, or subservient to, the military uses of those fleets and armies. But if they are transports merely, and as such are employed simply in the transportation of men or stores, they do not rise above their proper mercantile character in consequence of such an employment; the employment must be that of an immediate application to the purposes of direct military operations, in which they are to take a part.

"It is next placed on the ground of intimidation; and it is said, that when the enemy is proved to have been intimidated, where it is not matter of inference, but of actual proof, the assistance arising from intimidation is not to be considered as constructive merely,

but an actual and effective co-operation. But I take that not to be quite correct; for an hundred instances might be mentioned in which actual intimidation might be produced, without any co-operation having been given. Suppose the case of a small frigate going to attack an enemy's vessel, and four or five large merchant ships, unconscious of the transaction, should appear in sight: they might be objects of terror to the enemy, but no one would say that such a terror would entitle them to share; though the fact of terror was ever so strongly proved, there would not be that co-operation nor that active assistance which the law requires, to entitle non-commissioned vessels to be considered as joint captors. What is the intimidation alleged?

'That the Dutch forces were about to make an attack on the British army, but on the appearance of these fourteen ships desisted.' This was an intimidation of which the ships were totally unconscious; and which would have been just as effectually produced by a fleet of mere transports; and I see no principle on which I could pronounce these ships entitled-on which I should not be also obliged to pronounce any fleet of merchantmen entitled in a similar situation; for any number of large ships, known to be British, and not known to be merchantmen, would have produced the same effect. The intimidation was entirely passive, there was no animus nor design on their part, nor even knowledge of the fact; for it was not till the next day, when their commodore returned from Lord Keith, that they knew anything of the matter, or ever thought of the terror that they had assisted in exciting. I take it to be incontrovertibly true, that no case can be alleged in which a terror so excited has been held to