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pursue. It

been physically possible, it is not necessary to inquire. In the case of chasing by a fleet, the animus persequendi in all, is sufficiently sustained by the act of those particular ships which do is, I think, highly probable, that even if the wind had been fair, the Culloden and Northumberland, as some of the other ships off Valetta did, would have remained in a state of inactivity, reasonably judging from the precautions taken, and from the flashes of the guns,

that a sufficient force had already gone upon the service. Therefore, unless it can be maintained, which it certainly cannot, that the whole of a squadron must, in all cases, purstie, and that the other ships which remain inactive off Valetta are not entitled to share, upon what principle are these two ships to be excluded? But it has been urged, as the wind then was, ships of their burden could not have cleared the shoals so as to get out; and it comes, therefore, to a question of law, whether such an intervention of physical impossibilities will exclude a ship from being held part of a squadron associated for the express purpose of making the capture. There have been cases in which it has been held that physical impossibilities of some permanence, and which could not be removed in time, would have such an effect; as, for instance, in the case of a ship lying in harbor, totally unrigged, which has been held to be as much excluded as one totally unconscious of the transaction, because, by no possibility could that ship be enabled to cooperate in time. But I take it, that in no case, the mere intervention of a circumstance so extremely local and transitory as the accidental state of the wind, has been made the ground of exclusion. The

interests of joint-captors would be placed on a very precarious and uncertain footing, if a doctrine were admitted, which referred them to the legal operations of a casualty so variable in itself, and so little capable of being accurately estimated.

“It being proved in this case, that the whole fleet were acting with one common consent, upon a preconcerted plan, for the capture of this prize, it was as much a chasing from the orders of the officer in command, as if it had actually taken place in open sea. It was a chasing by signal, and in sight of these two ships; which, even if they had not been incapacitated by the state of the wind, in all probability would not have thought it necessary or proper to join in the pursuit.

“The cases which have been cited are very different from this. The Genereux (Lords, May 7th, 1803) was captured upon the coast of Sicily, at the distance of twenty-two leagues from Malta, by a part of the squadron which was sent to look out for her, while the rest kept their station off Valetta; there was no sight, and the utmost they could bring the case up to was, that a firing of the guns was heard by one of the stationed ships.

“In the case of the Mars, there was neither sight nor association; and in the Frantmansdorf (Lords, 1st August, 1795), there was the same effect of a want of association.

“Now, in this case, there was not only an actual sight, not only a perfect conusance of what was going forward, but as complete, and uniform, and persevering an association in this particular object, as well as in the general object of the blockade, as can be imagined. I am therefore of opinion, that

the Culloden and Northumberland are entitled to share, and that the same right will extend to the other ships which remained off Valetta, although they have not made themselves parties to this suit. But the national ship Leda was sent forward to the coast of South America to obtain information there for the guidance of the expedition against Buenos Ayres. She left the station before the armament arrived, and again returned a few days after the capture of the settlement made by the fleet. She was held not to be entitled to share as joint-captor, either by virtue of antecedent or of subsequent service in the enterprise."

91

from the maste

The ship of war Defence was in sight from the masthead on the occasion of a capture being made by another vessel, and on that ground claimed the privilege of joint-captor. Lord Stowell said: “I No joint-capam not aware of any one instance in which the sight only court has pronounced for a joint-capture on being head. in sight only from the masthead. I do not say that such a case would be entirely and absolutely out of the reach of the principle on which the being in sight is admitted to constitute an interest of jointcapture; but this may be safely affirmed—that if the court was to pronounce for such a claim, upon such evidence, it would be, in all respects, a very extreme case indeed."

The ships Alfred, Dictator, Bittern, Zephyr and Pelican claimed to share in the property taken on land, and in the capture of one vessel, and in the

Buenos Ayres, 1 Dod., 28.

· The Robert, 3 Rob., 194.

The being in

distribution of bounty for the destruction of others, upon the capture of the island of Trinidad by the British. The claim was based on the averment that these vessels were in sight, and the admiral (Harvey) in command of the fleet, expressed an opinion that these vessels must have been in sight the evening before the enemy's ships were set on fire and the capture made.

Lord Stowell said: “The grounds of this opinion sight to be affirmatively seem to be very rational and just, and if supported proved.

on the part of the vessels themselves, they might have been very material. But the court is bound to expect that the being in sight should be proved by some direct evidence applied to the fact, and not merely by opinion, formed upon the conjectures of any persons, however respectable they may be.

“It is said that they heard the explosion. But it is a common phrase, not more contemptible for being common, that hearing is not seeing.

“The explosion of such a body as a ship of war would be heard at a stupendous distance.

“ It is a well-known fact that, in the famous battle in the Downs, the explosion was heard in St. James's Park, and was made the foundation of a mathematical calculation by Sir William Petty, with respect to the velocity of the progress of sound. So, with regard to the conflagration, the atmosphere would be illuminated to a prodigious distance; but it would be ludicrous to say that all who were within the reach of these appearances, produced by the fire, are to be taken in law as present at the occurrence itself.”

· The San Damaso, 3 Rob., 234.

sufficient to entitle to the

capture.

Three days after the battle of Trafalgar, a Spanish man-of-war was taken by the British ship The Donegal, and The Leviathan, though in sight at the time, was not admitted as joint-captor, because she was actually employed in taking care of other ships and prizes captured in the battle, and in watching the movements of The Monarch, another Spanish ship.

Mere intimidation without co-operation or active Mere intimidaassistance is not sufficient basis for a claim of joint- cooperation incapture.

Certain East India ships were employed to trans- rights of joint port a number of troops to the Cape of Good Hope, and claimed to share in the capture of that possession made in 1795.

Lord Stowell said: “If they had been associated to act in conjunction with the fleet, and did so act, they might acquire an interest which, on proper application, would be sure to meet with due attention. The question for me to consider, then, will be, whether they have acquired that military character or not?

“ Their pretensions have been put forward on sev. eral grounds.

“It is first said that they were associated with the Nor mere asfleet. Mere association will not do—the plea must go further, and show in what capacity they were associated, and that capacity must be directly military. Unless in a Transports are associated with fleets and armies for capacity. various purposes connected with, or subservient to, the military uses of those fleets and armies. But if they are transports merely, and as such are employed simply in the transportation of men or stores—they

sociation.

The El Rayo, 1 Dod., 42.

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