to disturb a practice generally prevailing among themselves. But the case cited is different from the present. The Audacious had actually engaged the enemy's fleet, and had separated only in chase of one of their ships. The Canada, another case which has been mentioned, chased from the fleet by signal on the prize coming in sight; and The Lowestoff, which is another case stated to have happened in the Mediterranean, was not detached from the Mediterranean fleet till after the chase had actually begun. These 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. there then any admitted principle? The gentlemen have resorted to the general principle of common enterprize, and it has been contended that, where ships are associated in a common enterprize, that circumstance is sufficient to entitle them to share equally and alike in the prizes that are made; but certainly this 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 enterprize, and using all their endeavours to effectuate their should be sepapurpose, rated 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 difficult than to say precisely where a common enterprize begins. In a more enlarged sense, the whole navy of England may be

said to be contributing in the joint enterprize of annoying the enemy. In particular expeditions every service has its divisions and sub-divisions. 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 be necessary to make the attack on the opposite side of the island, or to associate other neighbouring islands as objects of the same attack. The difficulty is, to say where the joint enterprize actually begins. Again, is it every remote contribution, given with intention or without intention, that can be sufficient? I apprehend that is not to be maintained. An actual service may be done without intention, or there may be a general intention to assist, and yet no actual assistance given. Can any body say that a mere intention to assist, without actual assistance, though acted upon with the most prompt activity, would in all cases be sufficient? 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 labour. 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 seeking the enemy's fleet 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 afterwards 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 that 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 endeavour as well as a general intention." (The Vryheid, 2 Rob. 21.)

When The Odin was captured off St. Helena by the boat of H. M. S. Trusty, a claim of joint capture was made on the part of The Royal Admiral, a private ship of war, on the ground that her boat, which had been sent out from the harbour of St. Helena to assist in the capture, was in sight when the capture was effected by the boats of The Trusty. Lord Stowell said, "I know of no case that would sustain such a claim. The principle of constructive assistance has been altogether 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 more strictly, and it has not been the doctrine of the Admiralty to raise constructive assistance so easily 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 other 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 proportion of her force. But what room is there for such 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 harbour cannot be entitled to share in a capture made out of the harbour, by the circumstance of her boat being merely in sight." (The Odin, 4 Rob. 318; see also La Belle Coquette, 1 Dod. 18; The Nancy, 4 Rob. 327; The Vryheid, 2 Rob. 16; The Niemen, 1 Dod. 16.)

The distinction between public and private ships of war with reference to claims of joint capture was laid

down by Lord Stowell in the case of The Amitié (6 Rob. 261). The claim was made on the part of two privateers, The Lark and General Coote, to share in the prize made by The Gannet, a man-of-war of 16 guns. "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 cooperation in the capture. They clothe themselves with commissions 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 law does not presume in their favour, from the mere circumstance of being in sight, that they were there with a design of contributing assistance 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 La Flore (5 Rob. 268) Lord Stowell said, in reference to king's ships, "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