the squadron; that the squadron was engaged in a blockade of the strictest kind, which rendered it imperative upon them not to desert their post; that they were lying at anchor with their sails furled in the bottom of a bay into which the wind was blowing strong; the Court pronounced against the interest of the squadron (z). A ship or fleet, that by accident or design diverts the course of an enemy, and by so doing occasions her capture by a totally distinct force, is not thereby entitled to share as joint captor (a). The Amethyst and Emerald were separately in pursuit of a vessel, which proved to be a French frigate, and which changed her course on perceiving the Emerald: the Emerald lost sight of the enemy in a fog, and continued to sail in search of her: the Amethyst engaged her, and when the Amethyst and the enemy were both crippled, the Arethusa came up and took possession: the Emerald not being then in sight was pronounced not to be entitled to share (b). A ship not in sight at the time of the capture is not entitled to share, because she had joined in chasing the prize with a constructive joint captor, and had been delayed by orders to pick up her boats. It may be deemed a hardship that a vessel should lose the benefit of sharing in the prize, in consequence of the delay occasioned by those orders fairly given, and without any view of depriving the ship of her share in the prize. The answer is, that it is the first duty of king's officers to obey the lawful commands of their superiors; and that views of mere private advantage are of secondary consideration, and must give way to the imperative requisitions of the public service. The admission of a constructive captor to share with the actual captor is an indulgent construction of the law, which must not be further extended (c). Construc (z) La Melanie, 2 Dod. 122. (a) Le Niemen, 1 Dod. 9. (c) The Financier, 1 Dod. 61. tive assistance by the boats of a ship, not in sight, cannot entitle their ship to share in the prize; though actual capture by the boats would be sufficient for that purpose, for they are a part of the force of the ship. Four boats of a ship belonging to a squadron were despatched in search of the enemy, supported by two schooners, one of which formed part of the squadron; and the other, though only by accident on the spot, by the practice of the navy, became subject to the orders of the admiral. The boats were obliged to return many hours before the capture took place, being unable to proceed on account of wind and weather, after putting some of their men on board the actual captor. It was held, that the boats could in no way be considered as actual captors, and could convey no interest to their ship; that they were themselves not entitled as constructive captors, since they had relinquished the chase, and returned to the harbour before the capture took place; and that the men put on board were entitled to share as part of the crew of the actual captor on that occasion, and not as part of the crew of their own ship (d). So, when a private ship of war and a king's ship were lying in harbour, and sent out their boats to make a capture, which was effected by the boats of the king's ship: it was held, that the boat of the privateer, not coming up at the time of the capture, was not entitled to share, and could convey no interest to her ship, though the boat's crew assisted in navigating the prize into port. There is a very solid 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 the friend, applies very weakly to the case of a boat, an object which attracts (d) La Belle Coquette, 1 Dod. 18. little notice upon the water, and whose character, even if discerned, may be totally unknown. It would be still more unreasonable, if the constructive co-operation of such an object would give an interest to the entire ship, to which it belongs. When a ship is in sight she is conceived to cooperate in the proportion of her force; but there is no room for such a presumption, when she co-operates only by the force of her boat (e). With respect to privateers, sight is not sufficient to entitle them to share as joint captors. It would open a door to very frequent and practicable frauds, if, by the mere act of hanging on upon the king's ships, privateers should be held to entitle themselves to an interest in the prizes which the king's ships take (ƒ). The rule of law upon this subject, which has been long established, both in the Court of Admiralty and in the Court of Appeals, is, that it must be shewn on the part of privateers that they were constructively assisting. The being in sight is not sufficient with respect to them to raise the presumption of co-operation 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 an 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. Where a privateer, in sight at the time of the capture, had been pursuing her course towards land in the track in which the prize was afterwards taken; without crowding sail, or any variation of route; or any movement, (e) The Odin, 4 Rob. 318. (f) The Santa Brigada, 3 Rob. 52. that would not have taken place without any intention to capture; it was held, to be impossible to pronounce for an interest of joint capture. But with respect even to privateers, the act of chasing, if continued for any length of time, and not relinquished before capture, will be sufficient to found a title of joint capture. It will not be necessary that the joint chaser should actually board the prize; it will be enough, if there is an animus persequendi, sufficiently indicated by the conduct of the vessel, and not discontinued (g). Revenue cutters are upon the same footing as privateers with respect to constructive joint capture, and are not entitled to share by the mere fact of being in sight; for not being under the same obligations as king's ships, to attack the enemy, they are not entitled to the same presumption in their favour (h). Where a privateer attempted to get between the prize and the land, and was of service, by diverting the attention of four frigates, by whom she was discovered and chased; it was held, that such diversion was a mere casualty, totally unconnected with all merit, actual or constructive; that if she had been captured, it would have produced exactly the same effect in a still stronger degree, and yet it would have been perfectly ludicrous to pronounce for her joint interest of capture under such circumstances (i). (g) The Amitie, 6 Rob. 261. (i) The Santa Brigada, 3 Rob. 52. 352 CHAPTER X. OF PRIZE COURTS. By the maritime law of nations, universally and immemorially received, there is an established method of determination, whether the capture be or be not lawful prize. Before the ship or goods can be disposed of by the captor there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereon as prize in a Court of Admiralty, judging by the law of nations and treaties. The proper and regular Court for these proceedings is the Court of that state to which the captor belongs. The evidence to acquit or condemn with or without costs and damages, must, in the first instance, come merely from the ship taken; viz., the papers on board, and the examination on oath of the master and other principal officers; for which purpose there are officers of Admiralty in all the considerable sea-ports of every maritime power at war, to examine the captains and other principal officers of every ship brought in as prize, upon general and impartial interrogatories. If there do not appear from them ground to condemn there must be an acquittal, unless from the aforesaid evidence the property shall appear so doubtful, that it is reasonable to go into further proof thereof. A claim of ship or goods must be supported by the oath of somebody at least as to belief. The law of nations requires good faith; therefore every ship |