CASES OF JOINT CAPTURE.

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nitions, agent's residence, 71 Jermyn Street, London, all tended to render the fraud too patent to impose upon any court. The result was a decree of condemnation by Judge Betts, which judgment, on appeal to the United States Supreme Court, was affirmed.

This case well illustrates the mode, manner, means, and agency, resorted to by those in revolt, to run the United States blockade of its Southern coasts. Starting and operating from a port of a neutral nation, whose sovereign in good faith, it may be presumed, proclaimed a strict neutrality as early as May 13, 1861, as she did subsequently, on the following 6th August, express in her speech to Parliament her determination to preserve strict neutrality, as a government, between the bellig

erents.

The Stephen Hart presents, therefore, a fair specimen of blockade running from English neutral ports. Ex uno omnia disces.

JOINT OR CONSTRUCTIVE CAPTURE.

UPON the subject of joint capture, the usual English authorities referred to are, the Mars, 1760, by the Lords; the Vryheid, 2 Ch. Rob. 22 (1799); the Forsigheid, 3 ibid. 315; the Harmonie, ibid. 318; the Genereux, Lords (1803), S. C. Edw. 9-16; the Guillaume Tell, Edw. 6-16 (1808); the Nordstern, 1 Acton, 140; Le Bon Aventure, ibid. 239; the Nostra Signora de los Dolores, ibid. 262; the Empress, 1 Dods. 368 (1814); the Financier, ibid. 67; the Le Nieman, ibid. 16; the Arthur, ibid. 426; the L'Etoile, 2 Dods. 107; the Naples Grant, ibid. 277; the La Furieuse, Stewart (Nova Scotia)

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tance.

DEFINITION BY DR. LUSHINGTON

179; and by these decisions, it will appear that the claim of joint capture is founded on coöperation; formerly within sight, but now within sight or signal disDr. Lushington, in the most recent case on booty, the Banda and Kirwee Booty (1 Eccl. & Adm. p. 142), sums up the decisions thus: "The result of these prize decisions seems to me to be as follows: they declare actual capture to be the rule, joint capture the exception, admissible only in certain cases.

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They lay down the principle which underlies all cases of joint capture, namely, encouragement to the friend, intimidation to the foe.

"They exhibit two modes in which this principle operates, association and coöperation.

"Lastly, they enforce the necessity, for the sake of the principle itself, of assigning some limits to what shall constitute coöperation."

Until this exposition (in 1866) by Dr. Lushington, of the rationale of joint capture, there had been not a little of fluctuation and uncertainty in the application by legal tribunals of the rules intended to govern and settle asserted claims of joint capture; and a professional repugnance to acquiesce in the principles enunciated in some of the judicial decisions. But the foregoing statement, by so consummate a master of both Admiralty and Prize law and practice, is at once clear, philosophical, and logical; and, although it was made incidentally, in pronouncing judgment in a case of booty, and not of prize, this authentic and authoritative exposition is none the less valuable as a legal dictum or definition.

In December, 1863, Judge Sprague, in the Cherokee, (2 Spr. 235,) had occasion to review the English authorities as to the doctrine of constructive capture, and to

AND JUDGE SPRAGUE.

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settle the question as to who were joint captors while coöperating in a blockade; and upon a review of those cases, and in the course of his discussion of the doctrines generally, he observed substantially, that it appeared that the judicial doctrine of constructive capture by association had not been uniform, well defined, or well settled. It had encountered the decided disapprobation of the profession, and courts had not unfrequently indicated that it was not satisfactory to themselves, and it seemed finally to have been discarded by royal proclamation. It was by no means commended to our understanding, as founded on sound principles of interpretation.

In the iron-clad ram Atalanta (2 ibid. 251), decided in January, 1864, the degree or kind of coöperation necessary to constitute a vessel "one making the capture," was explained and defined.

Formerly, joint capture was confined to cases of actual capture. This was in 1799. But, in order to preserve harmony in the British navy, it was subsequently extended to cases of constructive assistance ; and the being in sight became the principal criterion. This test, however, would be unavailing, were the general presumption of intimidation and encouragement proceeding from sight to be rebutted. On this presumption of encouraging a friend, or intimidating a foe, the principle of constructive assistance is legally founded. Even joint cruising, without being in sight, will not entitle a party claimant to share as joint captor, and a prevalent indisposition in the courts to extend the construction may be safely assumed. In the San Joseph (Lords, May 4, 1784), however, the whole fleet were per mitted to share in a capture made by a detached cruiser,

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VISIT AND SEARCH, BELLIGERENT RIGHTS.

although none others were in sight. This was, doubtless, upon the presumed ground of association, whereby each cruiser may have been supposed to participate in the common or main design of the enterprise; that is, capture of enemy property in a given locality.

The Aries, 2 Spr. 262; the St. John, ibid. 266; and the Ella and Anna, ibid. 267, were all cases relating to signal distance; it appearing, upon the proofs, that Coston's night signals were not legible at eight miles distance. These cases were heard and determined in 1864.

The test of signal distance was frequently applied during the civil war; and its application became a necessary ingredient in several blockade cases, in the same way that sight was formerly a recognized test, before steamers had measurably superseded sailing vessels of war.

RIGHT OF APPROACH, VISITATION, SEARCH, AND DETENTION.

THIS right, however exercised, is a belligerent right, resorted to only in war. In time of peace, it is a dormant power, and cannot be evoked but by mutual consent, or some treaty stipulation. It is the offspring of necessity, produced to preserve and protect belligerents in their war-rights, against the bad faith or other delinquencies of neutrals. The superior naval power of Great Britain has enabled that government to define this right for itself exclusively heretofore, and to exercise it, at times, quite offensively, though it may have been possibly in accordance with the preconceived legal and political notions of its magistrates or ministers. The English doctrine has been often renounced and resisted; sometimes reluctantly accepted; but never cordially acquiesced in.

BRITISH PRETENSIONS DENIED BY BALTIC POWERS. 561

In the Maria, 1 Ch. Rob. 340 (June 11, 1799), and the Elsabe, 4 ibid. 408 (November 28, 1803), the British pretensions as to the right of search are fully stated by Sir William Scott, in a form unacceptable to neutral nations certainly, and with features offensive probably to all commercial states but England itself.

Between Russia and England, there was a conflict of claims in this respect as early as 1780; when the government of the former denounced and defied the pretensions of the latter. During the American Revolutionary War, the Baltic Powers combined, and Denmark, Sweden, Russia and Prussia confederated to resist England, and uphold the doctrine, that "free ships make free goods;" which doctrine (now more in vogue than formerly), should it ever be universally acceded to, would bring about the millennium in maritime warfare. In such an event, the exemption of neutral carriers and cargoes from capture would be complete, and the immunity of private property from maritime spoliation, as proposed by Mr. Marcy, in behalf of the United States, to the Paris Convention, would materially modify modern maritime warfare. It would then cease to be prosecuted as a war upon individuals; but become rather (as it should be) a war between two commercial states, whose governments must fight it out between each other, according to their respective resources and ability, with sailing or steam vessels, screws or paddle-wheels, iron-clads, rams, or monitors.

Prior to 1812, France and England struggled desperately for their respective theories, each even asserting the sufficiency and legality of a mere paper blockade; and now, both have publicly renounced that error, by agreeing to the Paris Convention of 1856, to which each was a party.