enure to the benefit of a non-commissioned vessel. Another ground on which it is put, and which it may be proper for me to advert to, is the ground of analogy that it is a case of assistance, analogous to that of joint chasing, on which it is said to be sufficient, if the non-commissioned ship puts itself in motion; and the cases of The Twee Gesuster in the last war, and The Le Franc, have been relied upon. I see no ground on which the analogy can be supported. The cases cited were of a very different nature; in both of them the non-commissioned ships chased animo capiendi, and contributed materially, in the case of The Le Franc, directly and immediately, to the act of capture. In the present case, these ships approached, it is true, the coast of the Cape of Good Hope, but with no animus capiendi, with no hostile purpose entertained by themselves; for they were totally ignorant of the objects of the expedition. It is, moreover, obvious to remark, that all cases of joint chasing at sea differ so materially from all cases of conjunct operations on land, that they are with great danger of inaccuracy applied to illustrate each other. In joint chasing at sea, there is the overt act of pursuing, by which the design and actual purpose of the party may be ascertained, and much intimidation may be produced; but in cases of conjunct operations on land, it is not the mere intrusion even of a commissioned ship that would entitle parties to share. The words of the act of parliament directThat in all conjunct expeditions of the navy and army against any fortress upon the land, directed by instructions from his Majesty, the flag and general officers, and commanders and other officers, seamen, marines, and soldiers, shall have such proportionable

interest and property as his Majesty under his sign manual shall think fit to order and direct.' The interest of the prize is given to the fleet and army, and it would not be the mere voluntary interposition of a privateer that would entitle her to share. It would be a very inconvenient doctrine, that private ships of war, by watching an opportunity, and intruding themselves into an expedition, which the public authority had in no degree committed to them, should be at liberty to say-We will co-operate;' and that they should be permitted to derive an interest from such a spontaneous act, to the disadvantage of those to whom the service was originally entrusted. Expeditions of this kind, designed by the immediate authority of the state, belong exclusively to its own instruments, whom it has selected for the purpose; and it might be attended with very grave obstruction to the public service of the country, if private individuals could intrude themselves into such undertakings, uninvited and under colour of their letter of marque. I think, therefore, that the cases of chasing at sea, and of conjunct operations on land, stand on different principles, and that there is little analogy which can make them clearly applicable to each other.

"It is next said, that they were directed to hoist pennants, and that it was the opinion of a very high military officer, in a former case, that the permission to wear the pennant did give the character of a king's ship; but the decision in the very case in which that opinion was offered (in the capture of Negapatam), held, that a ship, which in that case had worn a pennant, was not to be considered in a military character, but as a transport; the mere circumstance, therefore,

that these ships, which were large ships, and had before carried pennants, and had taken them down only out of respect for the king's ship, and were desired to hoist them again, I cannot hold to be a sufficient proof that they were by that act taken and adopted into the military character; I can attribute no such effect to a mere act of civility and condescension.

"In the next place it is argued, that these ships were actually employed in military service, although there is no such averment in the plea. It comes out in evidence only, that their boats were employed in carrying provisions and military stores on shore; that was a service certainly, but not a service beyond the common extent of transport duty. They landed them probably at the same time with the troops, for whose use they were intended; and if not at the same time, still it is no more than what they were bound to do with the stores and provisions they carried." (The Cape of Good Hope, 2 Rob. 282.)

In a claim of joint capture on the part of land forces, asserted to have co-operated in the capture of the Dutch fleet in Saldanah Bay in 1796, and which was rejected by Lord Stowell, the learned judge said, "The question is, whether such a case has been made out, on the part of the army, as will support their claim to be considered joint captors? In the first place, it is not pretended that it is a case which comes within the provisions of the Prize Act (33 Geo. 3, c. 16), which directs the army to share, in some cases, in conjunction with the fleet; in the next place, it is not argued that this is a case of concerted operations; that the army and navy might have similar views is not contested, but whatever was done was done sepa

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rately and without concert or communication. Thirdly, it cannot be denied that it lies upon the army to make out a case of joint capture, and to show a co-operation on their part, assisting to produce the surrender; for the surrender was made to the fleet alone, possession was taken by the fleet, the army could not take it; therefore, the onus probandi lies on them to prove that there was an actual co-operation on their part; for it is, I think, established by decided authority, and particularly in the late case of Jaggernaickporam (Lords, Jan. 26, 1799), before the Lords of Appeal, that much more is necessary than a mere being in sight, to entitle an army to share jointly with the navy in the capture of an enemy's fleet. The mere presence, or being in sight, of different parties of naval force, is, with few exceptions, sufficient to entitle them to be joint captors; because they are always conceived to have that privity of purpose which may constitute a community of interests; but between land and sea forces, acting independently of each other and for different purposes, there can be no such privity presumed; and, therefore, to establish a claim of joint capture between them, there must be a contribution of actual assistance, and the mere presence or being in sight will not be sufficient. Fourthly, I am strongly inclined to hold, that when there is no pre-concert, it must be not a slight service, nor an assistance merely rendering the capture more easy or convenient, but some very material service, that will be deemed necessary to entitle an army to the benefit of joint capture; where there is pre-concert, it is not of so much consequence that the service should be material, because then each party performs the service that is previously

assigned to him, and whether that is important or not, s not so material; the part is performed, and that is all that was expected. But where there is no such privity of design, and where one of the parties is of force equal to the work, and does not ask assistance, it is not the interposing of a slight aid, insignificant perhaps and not necessary, that will entitle the other party to share.

"The principle of terror to support this claim must be of terror operating not mediately and with remote effect, but directly and immediately influencing the capture. I will not say that a case might not, under possible circumstances, arise, in which troops on shore might be allowed to share in a capture made in the first instance by a fleet. I will put this case: Suppose a fleet should come into a hostile bay with a design of capturing a hostile fleet lying there, and a fleet of transports should also accidentally arrive with soldiers on board; suppose these soldiers made good their landing, and gained possession of the hostile shore, and by that means should prevent the enemy from running on shore and from landing, and thereby influenced them to surrender; I will not say that troops in such a situation might not entitle themselves to share, although the surrender had been made actually to the fleet. But suppose the troops to land on a coast not hostile, but on their own coast, I do not apprehend that the possession of such a shore would draw the same consequences after it; for what difference would it make whether there were troops on shore or not? The enemy must know, that in a day or two the landing on a shore to them hostile must be followed by sure and certain captivity, whether there