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do not rise above their proper mercantile character, in consequence of such employment. The employ- . ment must be that of an immediate application to the
purposes of direct military operations, in which they are to take a part.
“It is next placed on the ground of intimidation, and, it is said, that when the enemy
is proved to have been intimidated, where it is not matter of in. ference, but of actual proof, the assistance arising from intimidation is not to be considered constructive merely, but an actual and effective co-operation.
“But I take that to be not quite correct, for a hundred instances might be mentioned, in which actual intimidation might be produced, without any co-operation having been given. Suppose the case of a small frigate going to attack an enemy's vessel, and four or five large merchant ships, un conscious of the transaction, should appear in sight, they might be objects of terror to the enemy, but no one would say that such a terror would entitle them to share: though the fact of terror was ever so strongly proved, there would not be that cooperation and active assistance, which the law requires to entitle non-commissioned vessels to be considered as joint-captors. What is the intimidation alleged ? That the Dutch forces were about to make an attack on the British army, but, on the appearance of these fourteen ships, desisted. This was an intimidation of which the ships were totally unconscious, and which would have been just as effectually produced by a fleet of mere transports: and I see no principle on which I could pronounce these ships entitled, on which I should not also be
obliged to pronounce any fleet of merchantmen entitled, in a similar situation; for any number of large ships, known to be British, and not known to be merchantmen, would have produced the same effect. The intimidation was entirely passive, there was no animus nor design on their part, nor even knowledge of the fact; for it was not till the next day, when their commodore returned from Lord Keith, that they knew any thing of the matter, or even thought of the terror that they had assisted in exciting. I take it to be incontrovertibly true, that no case can be alleged, in which a terror so excited has been held to enure to the benefit of a non-commissioned vessel. Another ground on which it is put, and which it may
proper to advert to, is the ground of analogy. That it is a case of assistance, analogous to that of joint-chasing, on which it is said to be sufficient, if the noncommissioned ship puts itself in motion, and the cases of the Twee Gesuster, in the last war, and the La France have been relied upon. I see no
I ground' on which the analogy can be supported. The cases cited were of a very different nature. In both of them, the non-commissioned ships chased, animo capiendi, and contributed materially, directly and immediately in the capture. In the present case, these ships approached, it is true, the Cape of Good Hope, but with no animus capiendi, with no hostile purpose entertained by themselves, for they were totally ignorant of the objects of the expedition. It is moreover, obvious to remark, that all cases of joint-chasing at sea, differ so materially from all cases of conjunct operations upon land, that they are with great danger of in
accuracy, applied to illustrate each other. In jointchasing at sea, there is the overt act of pursuing, by which the design and actual purpose of the party may be ascertained, and much intimidation may be produced, but in cases of conjunct opera. tions upon land, it is not the mere intrusion, eren of a commissioned ship, that would entitle parties to share. The interest of the prize is given to the fleet and army, and it would not be the mere voluntary interposition of a privateer that would entitle her to share. It would be a very inconveni. ent doctrine, that private ships of war, by watching an opportunity, and intruding themselves into an expedition which the public authority had, in no degree committed to them, should be at liberty to say, 'we will co-operate,' and that they should be permitted to derive an interest from such a spon. taneous act, to the disadvantage of those to whom the service was originally intrusted. Expeditions of this kind, designed by the immediate authority of the state, belong exclusively to its own instruments, whom it has selected for the purpose, and it
, might be attended with very grave obstruction to the public service of the country, if private individuals could intrude themselves into such undertakings, uninvited, and under color of their letter of marque. I think, therefore, that the cases of chasing at sea and of conjunct operations on land, stand on different principles, and that there is little analogy which can make them clearly applicable to each other.
“It is next said, that they were directed to hoist pennants, and that it was the opinion of a very high military officer in a former case, that the permission to wear the pennant did give the character of king's ship; but the decision in the very case in which that opinion was offered in the capture of Negapatam), held, that a ship, which, in that case had worn a pennant, was not to be considered in a military character, but as a transport; the mere circumstance, therefore, that these ships, which were large ships, and had before carried pennants, and had taken them down only out of respect to the king's ships, and were desired to hoist them again, I cannot hold to be a sufficient proof that they were, by that act, taken and adopted into the military character. I can attribute no such effect to a mere act of civility and condescension. In the next place, it is argued, that these ships were actually employed in military service, although there is no such averment in the plea. It comes out in evi. dence only, that their boats were employed in carrying provisions and military stores on shore. That was a service certainly, but not a service beyond the common extent of transport duty. They landed them probably at the same time with the troops, for whose use they were intended ; and if
; not at the same time, still it is no more than what they were bound to do with the stores and provisions they carried.”1
A claim of joint-capture was made on behalf of land forces, said to have co-operated with the fleet in the taking of the Dutch fleet in Saldanah bay in 1796. In rejecting the claim Lord Stowell said: “The The quostion
considered question is, whether such a case has been made out, whether armo
entitled as joint-captors
forces can be on the part of the army as will support their claim
to be considered joint-captors? In the first place, with the naval it is not pretended that it is a case which comes
within the provisions of the prize act (33 Geo. III. c. 16), which directs the army to share in some cases in conjunction with the fleet. In the next place, it is not argued, that this is a case of concerted operations. That the army and navy might have similar views is not contested, but whatever was done was done separately, and without concert or communication. Thirdly, it cannot be denied that it lies with the army to make out a case of joint-capture, and to show a co-operation on their part, assisting to produce the surrender—for the surrender was made to the fleet alone, possession was taken by the fleet; the army could not take it; therefore, the onus probandi lies on them to prove that there was an actual co-operation on their part: for it is, I think, established by judicial authority, and particularly in the late case of Jaggernaich (Lords, January 26, 1799), that much more is necessary than a mere being in sight, to entitle an army to share jointly with the navy in the capture of an enemy's fleet. The mere presence, or being in sight, of different parties of naval force, is, with few exceptions, sufficient to entitle them to be joint-captors, because they are always conceived to have that privity of
constitute a community of interest; but between land and sea forces, acting independently of each other,
and for different purposes, there can be no such Material ser- privity presumed ; and therefore to establish a to entitlo the claim of joint-capture between them, there must army to the be a contribution of actual assistance, and the mere benefit of joint