formance of the special duty of protecting their convoy. Being military ships and capable of rendering assistance (where not interfering with this special duty), they are entitled to all the benefits of constructive capture, whether the construction arises from association, sight, or otherwise. But if the convoying ship desert her duty, she forfeits all benefit of capture.1

§ 14. If a vessel be detached from the fleet at the time of capture so as to separate her from the joint object, she cannot be considered as a constituent part or member of the association, and cannot claim the benefit of joint capture with the fleet, nor can the fleet be allowed to come in as joint captors in any prize taken by her after she was detached. Thus, where two vessels of a blockading squadron were sent to look out for an enemy's ship and captured her, the rest, which maintained their station, were held not entitled to share. So, where two vessels were detached, one by stress of weather and another in chase, they were held not entitled to share in a capture made in their absence. But where two vessels were sent to chase and the rest of the fleet were bearing up to support them, the claim of the latter to joint capture was allowed. And a ship, forming a part of a blockading squadron and continuing as such, although temporarily detached at the time of the summons, and not returning till after the capitulation of the place so blockaded, was, nevertheless, entitled to share as joint captor with the rest of the blockading force. So, a ship in joint chase of one vessel, being ordered by a superior to chase another, the two chasing vessels are regarded as associated for the joint object of capturing both of those chased, and, although only one is captured, they jointly share in the prize. But if neither received or was actually under the orders of the other, or of a common superior, the case would be different.2

15. When land and sea forces act in conjunction, and no express provision is made by statute for the distribution of prizes taken by their joint operation, resort must be had to the principles established by judicial decisions. It has been held that a mere general co-operation, in the same general objects, will not be sufficient to make land forces joint captors

The 'Waaksamheid,' 3 Rob., I; the 'Fury,' 3 Rob., 9.

The 'Forsigheid,' 3 Rob., 311; the Island of Trinidad,' 5 Rob., 92; the 'L'Etoile,' 7 Dod. R., 106; the Naples Grant,' 2 Dod. R., 273; the 'Nordstern,' cited, Edw. R., 126; the 'Cherokee,' ante p. 391.

with a fleet; there must be an actual assistance and co-operation in the particular capture. Where there is pre-concert, a very slight service is sufficient. So, where soldiers are landed on the coast, to co-operate with a fleet, in a conjunct expedition, or in a particular engagement, they are entitled to share in the capture. In the case of a claim on the part of the army to share in a capture made by the fleet, the onus probandi lies upon them to show that there was an actual co-operation on their part, assisting to produce the surrender. Without a preconcert, or conjunct expedition, they are not entitled to the benefit of constructive capture; 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. Between public ships of war, there is always conceived to be a privity of purpose, which constitutes a community of interest; and this community of interest extends to public ships of different countries, if allies; but between land and sea forces, acting independently of each other, no such privity can be presumed. Hence, the difference of the rules applicable to the two cases.'

§ 16. The public ships of allies, serving together, are entitled to share in captures, the same as those of a single belligerent. There is no difference in this respect, whether the benefit of

1 The 'Stella del Norte,' 5 Rob., 349; the 'Dordrecht,' 2 Rob., 55. It is no legal ground of objection to the jurisdiction of a prize-court that the arrest was made out of its territorial authority. The court has jurisdiction under the law of nations and by municipal law when the subject matter of the suit is prize of war, without regard to the locality of the arrest or cause of action, and it is unimportant to the question of prize or no prize whether the capturing land and sea forces act in conjunction or separately. Where a combined action exists between vessels of war and land forces in making a capture, it is usually cast upon the latter to prove that their co-operation was direct and positive to authorise their sharing in the prize, and they are not ordinarily recognised as joint captors unless it is proved on their part that the capture was produced by their active interference. The court has cognizance of all captures in an enemy's country made in creeks, havens, and rivers, when made by a naval force solely or in co-operation with land forces.-The 282 Bales of Cotton, Blatch. Pr. Cas., 302.

By 27 and 28 Vict. cap. xxv. s. 34, it is enacted that where, in an expedition of any of her Majesty's naval or naval and military forces, against a fortress or possession on land, goods belonging to the State of the enemy or to a public trading company of the enemy, exercising powers of government, are taken in the fortress or possession, or a ship is taken in waters defended by or belonging to the fortress or possession, a prizecourt shall have jurisdiction as to the goods or ships so taken, and any goods taken on board the ship, as in case of prize.

joint capture goes to the government or to the vessels, theircommanders and crews. If, of two allied joint captors, the government of one has made a grant of the prize, and the other has not, the condemnation will be, in the former case, directly to the joint captor, and in the latter, to the government, according to the share of each. A question may arise, in case of joint capture by allies, with respect to the court which shall be entitled to adjudicate upon the capture. By the convention of May 20th, 1854, entered into between France and England, it was stipulated, (art. 2,) that when a joint capture shall be made by the naval forces of the two countries, the adjudication shall belong to the jurisdiction of the country whose flag shall have been borne by the officer having the superior command in the action; and, (art. 2,) that when a capture shall have been made by a cruiser of either of the two allied nations, in the presence and in the sight of a cruiser of the other, such cruiser contributing to the capture, the adjudication of the case shall belong to the jurisdiction of the country of the actual captor. These rules are founded in reason, and will probably be adopted in all similar cases.1

§ 17. It has already been stated that, as public ships of war are under a constant obligation to attack the enemy wherever seen, and as a neglect of this duty is not to be presumed, there is a privity of purpose, which constitutes a community of interest, and the mere circumstance of being in sight, is sufficient to entitle such a vessel to the benefit of joint capture. But as the same obligation does not rest upon privateers, the law does not give them the benefit of the same presumption of an animus capiendi. They generally clothe themselves with commissions of war for private advantage only; and, however allowable this may be when combined with other considerations of public

1 Phillimore, On Int. Law, vol. iii., §§ 390-401; Ortolan, Diplomatie de la Mer, tome ii., appen. spécial.

An ally actually co-operating in effecting a capture cannot sue in the common law courts, but must sue in the prize-court.

Tucker, 2 Taunt. 7.

Duckworth v.

27 and 28 Vict. c. xxv., s. 35. Where any ship or goods is or are taken by any of her Majesty's naval or naval and military forces, while acting in conjunction with any forces of any of her Majesty's allies, a prize-court shall have such jurisdiction as to the same, as in case of prize, and shall have power, after condemnation, to apportion the due share of the proceeds to her Majesty's ally, the proportionate amount and the disposition of which share shall be such as may from time to time be agreed between her Majesty and her Majesty's allies.

policy, it will not lead to the same inference, as in the case of public ships of war. Hence, the animus capiendi of a privateer must be 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 entertained. A different rule would induce privateers to follow in the wake of public ships of war, and keeping in sight of them, merely to become entitled to the joint benefit of the captures which they might make. But a public ship of war is entitled to the benefit of constructive joint capture, where the actual taker is a privateer, the same as though both were vessels of war. The reason of this rule is obvious.1

§ 18. Revenue cutters are sometimes furnished with letters of marque and cruise, beyond the ordinary limits of their duty as coast-guards, for the purpose of capturing enemy's merchant vessels. They are public vessels, but not public vessels of war, and, with respect to the benefits of joint capture, are, by English courts, considered in the light of privateers, and the rule of constructive assistance, from being in sight, does not apply to them; for, not being under the same obligations as king's ships to attack the enemy, they are not entitled to the same presumption in their favour.2

§ 19. With respect to captures made by boats, it is a general rule, that the ships to which they belong, are entitled to share as joint captors; or rather, the capture is considered as made by the ship, the boats being a part of the force of the ship. But if the capturing boat has been detached from the ship to which it belongs, and attached to another, only the ship to

1 The 'L'Amitié,' 6 Rob., 261; the 'Santa Brigada,' 3 Rob., 52: Talbot v. Three Briggs,' 1 Dallas R., 95; 'La Flore,' 5 Rob. 238; the 'Galen,' 2 Dod. R., 19.

If a prize be made by two or more privateers, they are to share proportionally, according to the number of men of which their respective crews consist.-Roberts v. Hartley, 1 Dougl., 311.

2 Phillimore, On Int. Law, vol. iii., § 395; the Bellona,' Edw. R., 63. When it appeared that the prize property was captured by a United States steam transport ship, no other vessel co-operating therein or being within signal distance at the time, and that the prize vessel was of inferior force, the court, to carry into effect the Act of June 30, 1864, allowing vessels not of the navy to share in a prize in certain cases, referred it to a commissioner to report the names and employments of the captors on board the transport ship present, and engaged in the capture, and the relative compensation properly allowable to them severally.-The Emma," Blatchf. Pr. Cas., 607.

which it is attached at the time of capture, shares in the prize. Mere constructive capture by boats, will hardly entitle the ships to which they belong, to be allowed to come in as joint captors, for the fact of boats being in sight, does not necessarily raise the presumption of assistance, by the intimidation of the enemy, and the encouragement of the friend. Thus where the boats of a ship, lying in a harbour, were within sight of a capture, it was held that the ship could not be allowed to share as joint captor.1

§ 20. Captures made by tenders are regulated by the same rules as those made by boats, the ship to which the tender is attached being entitled to share, however distant she may be at the time of capture. But, in order to support the averment that the claimant was the principal, and the capturing vessel a mere tender, it must be shown, either that there had been some express designation of her as of that character, or that there had been a constant employment and occupation in a manner peculiar to tenders, equivalent to an express designation, and sufficient to impress that character upon her.2

§ 21. Prizes hold the same relation to their captors, as do the boats of the same vessel. Hence, prize interests acquired by a prize-master on board of a captured vessel, enure to the benefit of the whole ship's company. This is the natural and reasonable result of that community of interest existing between the prize-master and prize-crew, and the capturing

1 The ‘Anna Maria,' 3 Rob., 211; the 'Odin,' 4 Rob., 318; the 'Melomane,' 5 Rob., 41.

2 Wildman, Int. Law, vol. ii., pp. 334, 335 ; the 'Carl,' Spinks R., 261; the Island of Curaçoa,' 5 Rob., 282, note.

The British Court of Admiralty, in 1814, held that the mere employment of a ship in the military service of the enemy was not a sufficient setting forth for war to entitle a recaptor to condemnation under the terms of the existing prize act, but that if there was a fair semblance of authority in the person directing a vessel to be so employed, and there was nothing upon the face of the proceedings to invalidate it, the court would presume that he was duly authorised. The commander of a single ship may be vested with this authority as well as the commander of a squadron.-The Georgiana,' 1 Dodds, 397.

In the case of the Castor' (Lords of Appeal, 1795), the authority of the commander of a fleet was considered sufficient. In the case of the 'Ceylon' (1 Dods., 105), it was held that the employment of a ship for purposes of war under the authority of the Governor of the Mauritius was sufficient to constitute it a public ship of war. No particular inconvenience can arise from the practice; the only question is whether the prizes taken should be condemned to the individual captor or to the government, but the decision either way could afford but little consolation to the captured.