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enter into partnership with others, which he might have done himself, if he had thought proper. His captain, therefore, had no authority for what he did, and in that case, his unauthorized act could not bind his owner. I know, that if £'s vessel had alone made a prize, it would not have been difficult to persuade A to receive his proportion of it; but neither would it have been difficult to persuade B to contend for the same principle, which A in the case before us, insisted upon. The first vessel which was taken by the two armed ships together, and by means of their joint force, was a prize common to them both, by an implied partnership arising out of the circumstances of the case; but it was not so with the second, which A's vessel took alone, and which he ought to have kept exclusively to himself, if, agreeably to my opinion, he was not bound by the agreement of his captain. Therefore, on legal principles, setting aside the question of fact, I prefer the decision of the court of Flushing, to all the others that have been given on the same subject.
I proceed to a' question, which, in my opinion, deserves the most serious consideration; it is, "Whether, if one or more armed ships take a prize, others being present, but not fighting, it is to be divided between them?" As far as relates to ships of war, this question is settled by positive law; for, there is a decree of the states-general, of the 28th of January 1631, by which it is enacted, "That if a ship of war shall attack an enemy, another ship of war being present, may join in the fight, but not if the one who attacked first, shall call out that he has no need of assistance." But it appears to me, that this law was made specially for vessels of war, otherwise, there is nothing to hinder one armed vessel from joining another, in attacking and capturing a common enemy who is not yet subdued.
For the same reason I consider as a special ordinance, the sixth section of the Forma or regulation of the 15th of July 1633, expressly made for the privateers commissioned to cruise against the Spaniards in America, by which it was ordered, "that a privateer who should take a prize jointly with a vessel of the West-India Company, should not be entitled to a share thereof, unless he had been expressly called to the assistance of the company's ship." The same may be said of the seventh section, which enjoins upon all privateers, on pain of forfeiture of ship and goods, "not to meddle or interfere with the captures which the ships of the company may wish to make." If, however, the aid of a privateer ship should be called for, and she should take a prize, jointly with a vessel of the West-India Company, there is no doubt but that it should be distributed between them, in proportion to their respective size and force, as is provided by the sixth section of the said Forma: and if their force is equal, then the prize is to be equally divided between them; otherwise, it is best to observe what is called a geometrical proportion.
What shall we say, if one or'more ships pursue an enemy's vessel, and one of them perishes? or if more, perhaps, are present, but one alone takes the prize, while the others are merely spectators, and take no part in the action? The decree of the 28th of January 1631, which I have mentioned above, directs, that in such a case, " the prize is to be divided between all the vessels of war which have pursued her, but that she which has actually made the capture is to have the provisions, small-arms and plunderage."* But this again only concerns ships of war, of whose captures the states-general dispose at their discretion; for otherwise, if the case concerned privateers only, I would rather adjudge the whole prize to him who has fought and conquered the enemy's vessel, how many others soever might have pursued her, or been spectators of the contest.f
• The precise expression used in the original: it prohably means every tiling' susceptible of being made booty of war, which is not a part of the vessel or of her cargo, (properly so called.) T.
f This opinion of our author accords with that of the modern writers who have treated of this particular subject. "Excepting," says professor Martens, " the case of an association among privateers, it is requisite, in order to have a share in the prize, to prove the having contributed in some manner to the taking of it, and it is not sufficient to have been found in sight. Martens on Captures, § 32. in Jin. p. 91. Engl transl. It appears also to be, as far as we know, generally carried into practice among the nations
There are those, I know, who are for admitting all who were merely present, or even in sight, though at a distance; but this cannot be admitted. It is true, that the mere presence
of Europe, with respect to privateers, though in the case of vessels of war, governments have been induced, from motives of policy, to adopt a different rule.
The ordinances of France provide, that with regard to vessels of war, "those shall be considered as joint captors who shall have found themselves together and in sight of the capture at the time of its being made. Ord.of the 15th of June 1757, art. 10. 1 Code des Prises, (edit. 1784) p. 512. —Valin, Traiti des Prises, Append. 199. Thus, the mere circumstance of being in sight at the time of the capture, entitles a ship of war, by virtue of this ordinance, to a share of the prize.
But, in the case of privateers, another ordinance prescribes the opposite rule. It enacts, "that none shall be entitled to a share in a prize taken from the enemy, who have not contributed to the taking of the vessel;" which the next article explains, can only be done " by fighting, or by making such an effort as may have compelled the enemy to surrender, by intimidating him or cutting off his retreat." Ord. of the 27th January 1706, art. 1 and 2. 1 Code des Prises, 282. (same edition.)—Valin, ubi suprd, p. 102.
In England, the same distinction appears to be adopted. Ships of taar are entitled to share in a prize from the mere circumstance of having been in sight at the time of the capture, the ancient general rule having been relaxed or modified in their favour. " Formerly," says sir William Scott, "joint capture was confined to cases of actual co-operation, and when, in consequence of frequent litigations, it was extended to constructive assistance, for the purpose of preserving harmony and good understanding among the navy, the being in sight became the principal criterion. The Vryheid, 2 Bob. 14. Am. edit—In a later case, the same judge determined, in a contest between a ting's ship and a Jirivateer, that the mere being in sight was sufficient in the firmer to support the animus capiendi, and entitle her to a share of the prize. The Flore, 5 Bob. 239. Am. edit. •
But, on the contrary, when a similar controversy arose between similar parties, and the privateer claimed a share of the ting's ship's prize, because he had been present at the capture, sir William Scott decided, "that the mere being in sight was not sufficient, with respect to privateers, to raise the presumption of co-operation in the capture: they clothe themselves, said he, . 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." L'Amine, 6 Bob. 264. Am. edit.
We have not been able to find a single case in any of Dr. Bobinson's Reports, in which the naked question has been agitated exclusively
of others may have been the cause that the enemy has either surrendered sooner or been more easily subdued; but we are not to consider for what reason the vessel was taken or surrendered, but who took her. In the same manner, we should not admit the fort,* town or fleet in whose presence a capture was made, to a participation in the prize, even though it might be said to have been induced to surrender, by the fear which their presence excited. On the other hand, it is clear, that if another vessel has joined the captor in fighting the enemy, an accidental partnership must be considered as having taken place between them, and the reason of the thing requires, that what has been taken by their joint efforts, should be divided among them in proportion to their respective strength. Nor are we to discriminate in such a case between the different degrees of exertion; for that would be too difficult in practice; but we only consider whether the vessel which was present at the capture, did actually fight, and by her assistance, contribute to the victory.
Analogous to this principle is the doctrine which the civil law lays down on the subject of animals ferce natural, which do not become the property of those who pursue, but of those who actually take them.t
JC?= The remainder of this chapter is so entirely and exclusively local, that we have not thought it worth while to translate it.
between privateers. In one case, indeed, a share in a prize was allowed to one of that description in competition with another, from the circumstance of his being in sight at the time of the capture, coupled with that of having suited in company with the principal captor, and the capture was that of a defenceless neutral vessel, in which no fighting was required: The William J3' Mary, 4 Sob. 312. Am. edit. But we have not discovered one in which the question turned singly on the circumstance of being in sight, at the time of the capture; therefore, we presume, that the principles established in h'Amitie, would prevail in such a case. T.
* In England, land forces ave not considered as entitled to share in a capture, unless they have actually assisted and co-operated in it. The Dordrecht, 2 Sob. 53. Am. edit. T
t Inst. De Rer. Divis. § IS.
Of the Responsibility of owners of Privateers.
T) Y the laws of our country, contained in the Formx Ad-*—^ miralitatum and several edicts of the states-general, privateers are not permitted to sail from our ports, without giving security to answer for their good behaviour, that they will do no injury to neutrals, and that they will bring their prizes to legal adjudication, by the court of admiralty of the place where the security is given.*
The amount of this security has varied. It was at first required to be in ten thousand florins, the ship and the cargo at the same time remaining answerable for the consequences of the privateer's unlawful conduct. Afterwards it was ordered, that the owner should give security in twelve thousand, and the captain in ten thousand florins, the owner's bond to be resorted to in the first instance, and if it should not prove sufficient, then recourse might be had to that given by the captain.f But by the last edict which has been made upon this subject,^ it is merely provided, that security shall be given in the sum of thirty thousand florins,§ and the law does not
* Fornix Admiral, of the 13th of August 1597. §§ 5. 69.—of the 15th of July 1634. § 5.
f Edicts of the 1st of April 1622 9th of August 1624, and 22d of October
X Forma of 28th of July 1765. § 3.
§ About gl2,000.—In England, the security given by a privateer is £ 3000 (§13,320) which is reduced to one half if the vessel carries less than 150 men. Home's Compendium of Admiralty Laws, p. 9.—In France, by a decree of the 2d Prairial, 11th year, (22d of May 1803), the amount of such security is fixed at 74,000 francs (about jgl4,095) reduced in the same manner to one half, if the privateer is navigated by less than 150 men. Diet. Univ. de Commerce, verbo Course. By an act of congress, made during the partial hostilities between the.United States and France, priva