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practice of the navy, in opposition to the words of the act of Parliament, or a proclamation, or to the established law, cannot weigh or be of any author- : ity.
“At the same time, the court would be extremely unwilling to break in on any settled and received notions of the navy, or to disturb a practice generally prevailing among themselves. But the case cited is different from the present. The Audacious had actually engaged in the enemy's fleet, and had separated only in chase of one of their ships.
“The Canada, another case which has been men. tioned, chased from the fleet, on signal, on the prize coming in sight. The Lawestoff, which is another case stated to have happened in the Mediterranean, was not detached from the Meditei ranean fleet till after the chase had actually begun.
“The circumstances, therefore, materially distinguish these cases from the present; and I am at liberty to say, that no case in point or authority has been produced. Is there, then, any admitted principle? The gentlemen have resorted to the general principle of common enterprise, and it has been contended that, where ships are associated in a common enterprise, that circumstance is sufficient to entitle them to share equally and alike in the prizes that are made; but certainly that cannot be maintained to the full extent of these terms. Many cases might be stated in which ships so associated would not share. Suppose a case that ships, going out on the same enterprise, and using all their endeavors to effectuate their purpose, should be separated by storm or otherwise, who would contend that they should share in each other's captures ?
There is no case in which such persons have been allowed to share after separation, being not in sight at the time of chasing. It cannot be laid down to that extent; and, indeed, it would be extremely incommodious that it should. Nothing is more diffi. cult than to say precisely where a common enterprise begins. In a more enlarged sense, the whole navy of
a England may be said to be contributing in the jointenterprise of annoying the enemy. In particular expeditions, every service has its divisions and subdivisions. Operations are to be begun and conducted at different places. In the attack of an island, there may be different ports, and different fortresses, and different ships of the enemy lying before them. " It may
to make the attack on the opposite side of the island, or to associate other neighboring islands as objects of the same attack. The difficulty is, to say where the joint-enterprise actually begins. Again, is it every remote contribution, given with intention or without intention, that is sufficient? I apprehend that is not to be maintained. An actual service may be done with. out intention; or there may be a general intention to assist, and yet no actual assistance given. Can anybody say that a mere intention to assist, without actual assistance, though acted upon with the most prompt activity, would, in all cases, be suffi. cient? If persons, under such claims, could share, there would be no end to dispute. No captor would know what he was about; whether, in every prize he made, there might not be some one, fifty leagues distant, working very hard to come up, and even acting under the authority of the admiralty,
to co-operate with him.
In serving his country, every captor would be left in uncertainty, whether some person whom he never saw, and whom the enemy never saw, might not be entitled to share with him in the rewards of his labor. The great intent of prize is to stimulate the present contest, and to encourage men to encounter present fatigue and present danger; an effect which would be infinitely weakened if it were known that there might be those not present, and not concerned in the danger, who would entitle themselves to share.
“ What is the true criterion in these cases? The being in sight, or seeing the enemy accidentally a day or two before, will not be sufficient; it must
;; be, at the commencement of the engagement, either in the act of chasing, or in preparation for chase, or afterward, during its continuance. If a ship was detached, in sight of the enemy, and under preparation for chase, I should have no hesitation in saying she ought to share. But if she was sent away after the enemy had been descried, but before any preparations for chase, or any hostile movements had taken place, I think it would be otherwise. There must be some actual contribution of endeavor, as well as a general intention."
The ship Odin was captured off St. Helena by Doctrine of boats sent from the British ship of war The Trusty. assistance as A claim to share in the proceeds of the prize was lie and private made on behalf of The Royal Admiral, a private armed vessels ship of war, on the ground that her boats, which had down. been sent out from the harbor of St. Helena to aid in effecting the capture, were in sight when the capture was in fact made by the boats from The Trusty.
. The rule laid
Lord Stowell said: "I know of no case that would sustain such a claim. The principle of constructive assistance has been thought to have been carried somewhat far, and the later inclination of courts of justice has been rather to restrain than extend the rule. Between private ships of war and king's ships, the rule of law has been always held inore strictly, and it has not been the doctrine of the admiralty to raise constructive assistance so tasily between them as between king's ships. If the competition had been between two king's ships, it would, in my opinion, be highly questionable, whether a boat so sent out, could support a claim to share, on the mere principle of being in sight. There is, I think, a very solid ground of distinction between the claims of a boat in the different cases of an actual and a constructive capture. Where a boat actually takes, the ship to which it belongs, has done, by means of this boat, all that it could have done by the direct use of its own force. In the case of mere constructive capture, the construction which is laid upon the supposed intimidation of the enemy, and the encouragement of a friend, from a ship of war being seen, or within sight of a capture, applies very weakly to the case of a boat, an object that attracts little notice upon the water, and whose character, even if discerned by either of the parties, may be totally unknown to both. “More unreasonable still would this be
upon actual captors, if the constructive co-operation of such an object would give an interest to the entire ship to which it belonged. Where a ship is in sight, she is conceived to co-operate in the prop tion of her force. But what room is there for su
a presumption where she co-operates only by the force of her boat?
“ I am of opinion, both on principle and authority, that where no antecedent agreement is proved to have taken place, a vessel lying in harbor, cannot be entitled to share in a capture made out of the harbor, by the circumstance of her boat being merely in sight."
The distinction between public and private armed The rule. ships of war with reference to claims as joint-captors, alluded to by Lord Stowell in the case of The Odin, is more distinctly laid down by him in another case, in which the claim was made on the part of two privateers, The Lark and General Coote, to share in the prize of the public ship of war The Gannet. He says:
“ The rule of law on this subject, which has long been established in this court and the Court of Appeals in various cases, is, that it must be shown on the part of the privateers that they were constructively assisting
“The being in sight is not sufficient with respect to them, to raise the presumption of co-operation in the capture. They clothe themselves with commis. sions of war, from views of private advantage only. They are not bound to put their commissions in use on every discovery of the enemy, and therefore The reasons of the law does not presume in their favor, from the mere circumstance of being in sight, that they were
| The Odin, 4 Rob., 318; vide also La Belle Coquette, 1 Dod., 18; The Nancy, 4 Rob., 327; The Vryheid, 2 Rob., 16; The Niemen, i Dod., 16.
• The Amitie, 6 Rob., 261.