either by accident or design, diverts the course of an enemy, and by so doing occasions her Capture by a totally distinct force, should be considered as a Joint Captor.(r) CCCXCIV. It is certainly true that darkness preventing sight will not universally exclude from a right to share; nor can the rule be laid down universally the other way; for there may not in every case be evidence to show the proximity to the scene of action. Where it can be shown that the asserted Joint Captor was in sight when the darkness came on, and that she continued steering the same course by which she was before nearing the prize, and that the prize itself also continued the same course, it amounts almost to demonstration that the ships would have seen, and been seen by each other, at the time of Capture, if darkness had not *intervened, and, in such case, she ought to be let in to the benefit of Joint Capture.(s) [*495] CCCXCV. But if the ship is lost sight of in the night, and the Capture is afterwards made at such a distance that the asserted Joint Captor would not at the time of Capture have been in sight even if it had been day, the claim of Joint Capture cannot be sustained. Lord Stowell has decided that where a ship is lost sight of in the night, the pursuit of that ship cannot properly be denominated a chase; it is a conjectural pursuit only; it is a feeling about in the dark, a search and inquiry, but no chase.(t) And where a ship is herself only a constructive Captor, it is not a sufficient ground to let in another ship that she had joined in a previous chase with the constructive Captor, and lost sight of the prize in the night.(u) Therefore, in a case where one of two joint chasers were ordered to pick up the boats of the other, and in consequence of the delay occasioned by her obedience to those orders she lost sight of the prize, which was in the meantime captured by a third ship coming up in the presence of the other, it was held that the ship so out of sight was not entitled to share. (x) A revenue cutter, though having a letter of marque, is not considered in England as a public ship of war entitled to the benefit of the rule of constructive assistance from being in sight.(y) A convoying ship, notwithstanding her special employment, may be entitled as a Joint Captor, if by chase or intimidation she aid in the Capture, when it does not interfere with convoy duty.(z) as CCCXCVI. 3. With respect to Capture made by Boats, it is a general rule that the ships to which they belong are entitled *to share. (a) But if a boat be detached from the ship to which she belongs, [*496] and attached to another, the ship only shares to which she is attached at that time; for she must be taken at that time, and in those operations, to be acting under the authority, and for the benefit of such ship only.(b) But constructive assistance by boats will not entitle the ships to which they belong to share in the prize, though actual Capture by the boats (8) The Union, 1 Dodson, p. 346. (r) Le Niemen, ib., p. 9. La Furie, ib., p. 9. + would be sufficient for this purpose; for they are a part of the force of the ship. And in cases of mere constructive assistance the right of participation must be in proportion to the intimidation caused, and cannot go beyond the force actually seen by the enemy.(c) And it is extremely questionable whether a boat of a ship of war could support a title to share on the mere principle of being in sight. 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, from a ship of war being seen or in sight, applies very weakly to the case of a boat, an object that attracts very little notice upon the water, and whose character, even if discerned by either of the parties, may be totally unknown to both. (d) Nor will the fact that the ship to which the boat belongs is in sight, lying at anchor in a harbour, entitle the ship to share.(e) CCCXCVII. The same principles apply to the case of Tenders. A ship of war is entitled to share in all Captures made by a Tender attached to her, however distant she may have been *at the time of [*497] Capture.(f) In order to support the averment of a ship being attached as a Tender, it must be shown either, (1.) that there had been some express designation of her as of that character by the orders of the Admiralty; or, (2.) that there had been a constant employment and occupation in a manner peculiar to Tenders, equivalent to an express designation, and sufficient to impress that character upon her.(g) CCCXCVIII. In respect to Captures made by ships which are asso+ciated in the same service, or engaged in a joint enterprise under the orders of the same superior officer, it is a general rule that they are en- (d) The Odin, ib., p. 318. (e) Ibid. (g) The Charlotte, 5 Rob., p. 580. See also the Melomane, ib., p. 41. The (h) The Forsigheid, ib., p. 311. The Guillaume Tell, Edw., p. 6. The Empress, 1 Dodson, p. 368. (i) The Forsigheid, 3 Rob., p. 311. S. C., Edw., p. 124. The Forsigheid, Edw., p. 124. But if a part of the fleet be detached on a separate service, or if the Capture be not within the purposes for which they were associated, then the rest of the fleet not actually or constructively assisting in the Capture, are not entitled to share. (1) And this rule applied to all detachments for some distinct and separate purpose, which, though possibly connected with the main service, carries the detached ships out of the scene of the common operations for the time.(m) But if they are only sent to look out, and they preserve their connection with the fleet, and maintain their dependence upon it, and keep within signal distance, this is not a detached service. It is more like stretching one of the arms of the fleet, without dissolving in any manner the connection between them and the main body.(n) In respect to transports, mere association in service is not sufficient to entitle them to share as constructive Joint Captors; but for this purpose they must actually acquire a military character, and must be employed in military operations, and there must be an animus capiendi, while so employed.(0) It is not sufficient that the enemy may Mere intimidation may be have been intimidated by their presence. produced without any co-operation having been given or intended. If a frigate were going to attack an enemy's vessel, and four or five large merchant-ships, unconscious of the transaction, should appear in sight, they might be objects of terror to the enemy, but no one would say that [*499] such terror would entitle them to share. *Though the fact of terror were ever so strongly proved, there would not be that cooperation which the law requires to entitle non-commissioned vessels to be considered as Joint Captors. But if non-commissioned ships chase animo capiendi, they are entitled to share if the Capture be made by their contributions in this service.(p) CCCXCIX. 4. With respect to conjunct operation by Land and Sea Forces, how far the former are permitted to share in prizes made by the latter, where no express provision is made by statute, depends upon the A mere general co-operation in the same circumstances of the case. general objects would not be sufficient ;(9) but an actual co-operation in the particular object is clearly sufficient.(r) CCCC. If the fleet of an ally and our own fleet serve together under a commander, who detatches the squadron of the ally, the latter is not entitled to share in Captures subsequently made; but if an ally actually co-operates in effecting a Capture, he is entitled to a share as a Joint Captor. But the question whether he is a Joint Captor or not, is a question over which Courts of Common Law have no jurisdiction, and which belongs exclusively to the Admiralty.(s) CCCCI. By the convention(t) entered into between France and Eng (7) Ibid., 3 Rob., p. 311. The Nordstern, cited in the Forsigheid, Edw., pp. 124, 126, 127. S. C., Acton, p. 128. The Island of Trinidad, 5 Rob., p. 92. The Stella del Norte, ib., p. 349. (m) The Forsigheid, 3 Ib., p. 311. (0) The Cape of Good Hope, 2 Ib., p. 274. (n) Ibid. (P) The Twee Gesuster, and Le Franc, cited in 2 Rob., pp. 284, 285, notes (a) (b). (2) The Stella del Norte, 5 Ib., p. 349. (r) Ibid. The Dordrecht, 2 Ib., p. 55. (8) Duckworth v. Tucker, 2 Taunt., p. 7. (t) May 20th, 1854. λ Re; + 635 land during the present war, it is stipulated (Art. 1,) that when a Joint And (Art. 2,) when a Capture shall have been made by a cruiser of either of the two allied nations, in the presence and in the sight of a cruiser of the other, such cruiser having thus contributed to the intimidation of the enemy and the encouragement of the Captor, the adjudicarion thereof shall belong to the jurisdiction of the actual Captor. CCCCII. In case of Joint Captures by public ships, the rule as to the proportion in which they are to share is established generally by statute. It is enacted by the present Prize Statute, that "before condemnation no claim on behalf of any asserted Joint Captor shall be admitted until security shall have been given by or on behalf of such asserted Joint Captor to contribute to the actual Captor his proportion of the expenses, costs, and damages that may be incurred by or awarded against the 7478 actual Captor on account of the capture and detention of the said ship, vessel, goods, or merchandise; and after final condemnation no such etc.25 claim shall be admitted until the asserted Joint Captor has paid his proportion of all such expenses as shall have attended the obtaining the final condemnation, and unless he show sufficient cause to the Court why such claim was not asserted at or before the return of the monition : provided always, that nothing herein contained shall extend to the asserted interest of any flag-officer claiming to share in any prize by virtue of his flag."(u) In the North American United States the proportion is fixed by the Act of the 22d April, 1800, c. 33, which provides that the capturing ships shall share "according to the number of men and guns on board each ship in sight." In respect to privateers, no statute regulation exists; and by *the general rule of the Prize Law, [*501] they are to share in proportion to their relative strength.(x) This relative strength is, by the Law of Great Britain and the United States, ascertained by the number of men on board of such ship assisting in the Capture.(y) Such, too, is the rule where an ally co-operates in the Capture.(z) And the same rule seems applicable to the case of a Joint Capture by a public ship and a private ship of war, and this whether the latter be commissioned or not.(a) For the Law of France upon this subject, see Merlin, Rep., t. xiii. pp. 156-162. "XIV. Il faut (he says,) sur cette matière, distinguer trois cas: celui où les prises ont été faites par les vaisseaux de l'Etat, agissant avec ou sans le concours de corsaires particuliers; celui où elles ont été faites par des corsaires particuliers agissant isolément; et celui où elles ont été faites, soit par les vaisseaux de l'Etat, soit par des corsaires particuliers, avecle concours des garnisons de forts et batteries de terre ou des préposés des douanes." (x) Bynk., Q. J., 1. i. c. xviii. (u) 17 V., c. 18. (y) Roberts v. Hartley, Doug., p. 311. The Dispatch, 2 Gallison's (Amer.) Rep., p. 1. (2) Duckworth v. Tucker, 2 Taunt., p. 7. (a) The Twee Gesuster, 2 Rob., p. 284, note (a). Le Franc, ib., p. 285, note (b). *CHAPTER VI. POSTLIMINIUM.-RECAPTURE.-RANSOM. [*502] CCCCIII. THE jus postliminii(a) of the Roman Law related to persons and to things. I. With respect to the former, the person who was liberated from prison, and who returned to his country, had a right to be replaced in his original legal status. It was said of him, "pristinum jus suum recipit," or "postliminium fingit eum qui captus est, in civitate semper fuisse."(b) This jus postliminii had a double effect (c) partly of a passive character, inasmuch as in some instances it replaced the returned person within the dominion of the right of another person; as, for instance, the returned son fell again under the power of his parent, the returned slave under the power of his master. To produce this passive effect, the only requisite was the simple return of the individual. But to produce the active effect, the jus postliminii required that the individual should have returned for the purpose of regaining his rights; that he should not have been abandoned by his country; that he should not have been the subject of a deditio, either during war, or at the time of making peace. The jus postliminii was denied to those who illegally returned to their country during an armistice, to deserters, and to those who had surrendered in battle. II. With respect to things. The Roman Law considered things taken by the enemy as withdrawn from the category of *legal relations [*503] during the period of the enemy's possession of them; but they were restored to this category when they were recovered, either by the State to which the original proprietor belonged, or immediately by the original proprietor himself. In the former case, they were considered as booty, or prize of war, and the original right of property was holden to have been extinguished by the intervening hostile possession; with certain exceptions, indeed, which included parcels of territory, horses, mules, and ships used for purposes of war. To these things the jus postliminii was accorded.(d) CCCCIV. It will be seen, that this maxim of Roman policy has not been engrafted into modern International Law. But, generally speaking, the jus postliminii is fully recognized by that law(e) as an incident to the state of war; it is a right which, strictly speaking, belongs exclusively to war. The recognition of this right by International Law, has a tendency to mitigate the necessary evils of war; and it is a true general proposition of that law, that property captured by the enemy and recaptured by the fellow-subjects, or allies, of the original owner, does not (a) Dig. 49, 15, 19, De Capt. et Postlim. X. 422 5-1, Quibus mod. jus. pot. solv. (b) Inst., i. 12, 5. (c) Puchta. Instit., II. 499-500, 220, (a); 324–5, § 223, (m. q.) 637, § 241, (2). (d) Puchta. Instit., II. 687, 88 241, 2. (e) Kent's Comm., vol. i. p. (108,) 115. + |