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 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 even of a king's ship (see also The Drie Gebroeders, 5 Rob. 341); but if nothing appears, on 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 joint captor." The Fadrelandt (5 Rob. 120) established the principle that in a claim 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 the claiming vessel, and the other by implication and necessary inference. When two vessels are associated for the purpose of effecting a capture, the continuance of the chase is sufficient to give the right of joint capture, and sight is, under such circumstances, unnecessary. (L'Etoile, 2 Dod. 106.) So ships will be entitled to share as joint captors which have been seen to be in chase of the prize during the day, and have continued the pursuit in a proper direction, the prize itself also continuing the same course, although they have been prevented from seeing the act of capture by the darkness of the night (The Union, 1 Dod. 346), or by the accidental pre

vention of sight by an intervening fog or 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 built. (The Fadrelandt, ubi sup.; The Forsigheid, 3 Rob. 316.)

With regard to the position of revenue cutters as to joint capture," it is a known rule of law," said Lord Stowell, in The Bellona (1 Edw. 64), " that the mere fact of being in sight would be sufficient to entitle a 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 presumed; but 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 unfavourably distinguished in this respect, that the advantages of capture are not held out to them, the interest of 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 upon their 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 cruize 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."

In the case of The Santa Brigada (3 Rob. 52), the allegation was of joint capture on the part of a private ship of war asserted to have been in sight at the time of the capture of a valuable Spanish galleon by The Triton frigate, and to have put herself in motion in such a manner as might have been effectual in cutting off the retreat of the galleon into a Spanish port. Lord Stowell said, "The being in sight will not be sufficient; it would open a door to very frequent and practicable frauds if, by the mere act of hanging on upon his Majesty's ships to pick up crumbs of the captures, small privateers should be held to entitle themselves to an interest in the prize which the king's ships took."

the

Nuestra Senora del Buen Consejo (3 Rob. 55, note)

was the case of a Spanish register ship of 800 tons and 26 guns (12-pounders), taken on the 29th of November, 1779, by The Hussar, Captain Salter. A claim of joint capture was given, and allowed, on the part of The Resolution, privateer of 16 sixpounders, Captain Sladen, whose gallantry and perseverance appeared highly meritorious in keeping the prize in chase from the 5th November till the 20th, having fought her several times, notwithstanding the disparity of force, and having kept constantly up with her, burning false lights, &c., during the night to attract the notice and assistance of some British cruizer.

The prize acts passed during the last war expressly reserved to the crown all captures made by revenue cutters. (See 55 Geo. 3, c. 160, s. 17; The Robert, 3 Rob. 194.)

Where one of two joint chasers has been ordered to pick up the boats of the other, and in consequence of the delay thereby occasioned has lost sight of the prize, she is not entitled to share with a third ship coming up and making the actual capture. "It is the first duty of the King's officers," said Lord Stowell, in The Financier (1 Dod. 67), "to obey the lawful commands of their superiors, and views of mere private advantage are of secondary consideration only, and must give way to the imperative requisitions of the public service."

The Guillaume Tell was the case of a claim by H. M. Ships Culloden and Northumberland to joint capture, as stationed at different points in support of the blockade of Malta in 1800, which was resisted on the ground that they had been unable to

of un

take actual part in the capture in consequence favourable weather. The claim however was admitted. "It has been objected," said Lord Stowell (1 Edw. 11), "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 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 pursue. It is I think highly probable that even if the wind had been fair, The Culloden and Northumberland would have remained, as some of the other ships off Valetta did, 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 pursue, and that the other ships which remained inactive off Valetta are not entitled to share, upon what principle are these two ships to be excluded? But it has been urged, that 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 determined 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 harbour totally unrigged, which has been held to be as much excluded as one totally unconscious