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there with a design of contributing, assisting, and engaging in the contest. There must be the animus capiendi, 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 effectually entertained.”
Again, in another case, with reference to king's ships, Lord Stowell said :
“They are under a constant obligation to attack the enemy wherever seen; a neglect of duty is not to be presumed, and therefore, from the mere circumstance of being in sight, a presumption is sufficiently raised, that they are there, animo capiendi. In the case of privateers, the law does not give them the benefit of the same presumption. Ships of this description go out very much on speculation of private advantage, which, combined with other considerations of public policy, are undoubtedly very allowable, but which do not lead to the same inference, as that which the law constructs on the known duty imposed on king's ships. A privateer is under no obligation to attack all she meets, but acts altogether on views of private advantage. She may not be disposed to
disposed to engage in every contest, and therefore the presumption does not arise in any instance, that she is present animo capiendi.
“ A contrary route, if proved, would defeat the claim of a king's ship, but if nothing appears on the one side or the other, as to that fact, the mere presence would, I think, be sufficient to entitle the king's ship to the character of a constructive captor.”
La Flore, 5 Rob., 268.
A case already cited,' establishes the principle, that in a case of joint-capture, grounded on the being in sight, it is necessary that the claiming vessel should have been seen by the actual captor, and also by the captured vessel, one of which facts, must be established by evidence other than that of the claiming vessel, and the other by implication and necessary inference.
When two vessels are associated for the pur-Joint-enterpose of effecting a capture, the continuance of the ing question of chase is sufficient to give the right of joint-capture, assistance. and the being in sight at the time of the capture is, under such circumstances, not essential.?
It has been determined also, that ships are entitled as joint-captors, that have been in chase during the day, and continuing the pursuit in a proper direction, that is, in the direction taken by the prize, although prevented by darkness from seeing the actual capture, or by the thickness of an intervening fog, or an interposing headland, at the moment of surrender, because the impulse and impression in the mind of the enemy who is to be intimidated, or of the friend who is to be encouraged, continue in full force, and thus support the principle on which the doctrine of constructive assistance is based.
As to rights of revenue-cutters to be joint-captors, in a case involving the question, Lord Stow
“It is a known rule of law, that the mere fact Rights of reveof being in sight would be sufficient to entitle a joint-captors.
· The Faderlandt, 5 Rob., 120. ? L'Etoile, 2 Dodson, 106.
The Forsigheid, 3 Rob., 316. * The Bellona, 1 Edw., 64.
king's ship, because in ships fitted out by the state, for the express purpose of cruising against the enemy, the animus capiendi is always presumedbut this presumption does not extend to privateers. In the one case, the duty is obligatory, in the other where private individuals make captures at their own expense, they are engaged in a mere commercial speculation, to be carried into effect by military means, but dependent upon their own will in the particular acts and exercises of their authority. Although they are authorized they are not commanded to capture. It is a matter in which they are left to their own discretion. But these vessels employed in the service of the revenue, are a class of ships of an anomalous kind, partaking in some degree of both characters. They belong to the government, and are maintained at the public expense, but not for the purpose of making captures from the enemy. On the other hand, they have commissions of war, but these are private commissions, which impose no peculiar duties upon them. They are not bound to attack and pursue the enemy more than other private ships of war—and they are likewise unfavorably distinguished in this respect—that the advantages of capture are not held out to them, the interest in all captures made by them being reserved to the crown.
“Primarily, their duty is to protect the revenue, and the capture of the enemy's vessels is engrafted on the original character. All they derive from these commissions, is, an authority to attack the enemy, in addition to other authorities that belong to their original and proper employment; on principle, therefore, they can only be considered as private ships of war.
“They are under no injunction to cruise against the enemy, and are employed generally for fiscal purposes. It is true that there is the addition of a military commission in time of war; but that does not designate them anew, it merely puts them on a footing with other private ships of war.”
A private ship of war made claim as joint-captors to share in the prize of a valuable Spanish galleon, taken by The Triton frigate, on the ground that she was not in sight at the time of the capture, but had placed herself in such a position as to be effectual in cutting off the retreat of the galleon into a friendly port.'
Lord Stowell said: “The being in sight will not be sufficient; it would open the door to very frequent and practicable frauds, if, by the mere act of hanging on upon his majesty's ships, to pick up the crumbs of the captures, small privateers should be held entitled to an interest in the prize which the king's ships took.”
A Spanish register ship of eight hundred tons and twenty-six guns (twelve-pounders), was taken on the 29th of November, 1799, by The Hussar, Captain Salter. The Resolution, a privateer of sixteen six-pounders, put in a claim of joint-capture, and it was allowed, on the ground of highly meri. torious gallantry and perseverance in keeping the prize in chase, from the 5th to the 20th of November; of having fought her several times, notwith:
· The Santa Brigada, 3 Rob., 52.
standing the great disparity of force; and having kept constantly up with her, burning false lights, etc.
, during the night, to attract the notice and assistance of some British cruiser.
In a case where it appeared that one of two joint-chasers had been ordered to pick up the boats of the other, and by reason of the delay occasioned by the performance of this service, had lost sight of the prize, and a third ship came up and made the capture, it was held that no right existed to share with that ship.'
Lord Stowell said: “To obey the lawful commands of their superiors, is the first duty of the king's officers, and views of mere private advantage are of secondary consideration only, and must give way to the imperative requisitions of the public service.”
In support of the blockade at Malta, in 1800, the British national ships of war, Culloden and Northumberland, were stationed at different ports. They preferred a claim as joint-captors, which was resisted on the ground that they had been unable to take actual part in the capture, in consequence of unfavorable weather.
In the opinion of the court allowing the claim, Lord Stowell says:
“It is objected that they had not the physical means of pursuing, because the state of the wind was such that they could not quit the bay.
“Whether they would have pursued if it had
1 The Financier, 1 Dod., 67.
The Guillaume Tell, 1 Edw., 112.