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accuracy, applied to illustrate each other. In jointchasing at sea, there is the overt act of pursuing, by which the design and actual purpose of the party may be ascertained, and much intimidation may be produced, but in cases of conjunct operations upon land, it is not the mere intrusion, even of a commissioned ship, that would entitle parties to share. The interest of the prize is given to the fleet and army, and it would not be the mere voluntary interposition of a privateer that would entitle her to share. It would be a very inconvenient doctrine, that private ships of war, by watching an opportunity, and intruding themselves into an expedition which the public authority had, in no degree committed to them, should be at liberty to say, 'we will co-operate,' and that they should be permitted to derive an interest from such a spontaneous act, to the disadvantage of those to whom the service was originally intrusted. Expeditions of this kind, designed by the immediate authority of the state, belong exclusively to its own instru ments, whom it has selected for the purpose, and it might be attended with very grave obstruction to the public service of the country, if private individuals could intrude themselves into such undertakings, uninvited, and under color of their letter of marque. I think, therefore, that the cases of chasing at sea and of conjunct operations on land, stand on different principles, and that there is little analogy which can make them clearly applicable to each other.
"It is next said, that they were directed to hoist pennants, and that it was the opinion of a very high military officer in a former case, that the per
mission to wear the pennant did give the character of king's ship; but the decision in the very case in which that opinion was offered (in the capture of Negapatam), held, that a ship, which, in that case had worn a pennant, was not to be considered in a military character, but as a transport; the mere circumstance, therefore, that these ships, which were large ships, and had before carried pennants, and had taken them down only out of respect to the king's ships, and were desired to hoist them again, I cannot hold to be a sufficient proof that they were, by that act, taken and adopted into the mili tary character. I can attribute no such effect to a mere act of civility and condescension. In the next place, it is argued, that these ships were actually employed in military service, although there is no such averment in the plea. It comes out in evi· dence only, that their boats were employed in carrying provisions and military stores on shore. That was a service certainly, but not a service beyond the common extent of transport duty. They landed them probably at the same time with the troops, for whose use they were intended; and if not at the same time, still it is no more than what they were bound to do with the stores and provisions they carried."
A claim of joint-capture was made on behalf of land forces, said to have co-operated with the fleet in the taking of the Dutch fleet in Saldanah bay in 1796.
In rejecting the claim Lord Stowell said: "The The question question is, whether such a case has been made out, whether arm
The Cape of Good Hope, 2 Rob., 282.
forces can be on the part of the army as will support their claim entitled as to be considered joint-captors? In the first place, with the naval it is not pretended that it is a case which comes
within the provisions of the prize act (33 Geo. III. c. 16), which directs the army to share in some cases in conjunction with the fleet. In the next place, it is not argued, that this is a case of concerted operations. That the army and navy might have similar views is not contested, but whatever was done was done separately, and without concert or communication. Thirdly, it cannot be denied that it lies with the army to make out a case of joint-capture, and to show a co-operation on their part, assisting to produce the surrender-for the surrender was made to the fleet alone, possession was taken by the fleet; the army could not take it; therefore, the onus probandi lies on them to prove that there was an actual co-operation on their part: for it is, I think, established by judicial authority, and particularly in the late case of Jag gernaich (Lords, January 26, 1799), that much more is necessary than a mere being in sight, to entitle an army to share jointly with the navy in the capture of an enemy's fleet. The mere presence, or being in sight, of different parties of naval force, is, with few exceptions, sufficient to entitle them to be joint-captors, because they are always conceived to have that privity of purpose which may constitute a community of interest; but between land and sea forces, acting independently of each other, and for different purposes, there can be no such Material ser privity presumed; and therefore to establish a to entitle the claim of joint-capture between them, there must army to the be a contribution of actual assistance, and the mere
benefit of joint
the navy, un
action by pre
presence, or being in sight, will not be sufficient, capture with Fourthly, I am strongly inclined to hold, that when less in case of there is no preconcert, it must not be a slight ser- concert. vice, nor an assistance merely rendering the capture more easy or convenient, but some very material service, that will be deemed necessary to entitle an army to the benefit of joint-capture. Where there is preconcert, it is not of so much consequence that the service should be material, because then, each party performs the service that is assigned to him, and whether that is important or not, is not so material. The part is performed, and that is all that was expected. But where there is no such privity of design, and where one of the parties is of force equal to the work, and does not ask for assistance, it is not the interposing of a slight aid, insignificant, perhaps, and not necessary, that will entitle the other party to share.
"The principle of terror, to support this claim, must be a terror operating not mediately and with remote effect, but directly and immediately influencing the capture. I will not say that a case might not, under possible circumstances arise, in which troops on shore might be allowed to share in a capture made in the first instance by a fleet. I will put this case. Suppose a fleet should come into a hostile bay, with the design of capturing a hostile fleet ly ing there, and a fleet of transports should also accidentally arrive with soldiers on board; suppose these soldiers made good their landing, and gained possession of the hostile shore, and by that means should prevent the enemy from running on shore and from landing, and thereby influence them to surrender. I will not say that troops in such a
Rights of jointcaptors not
situation might not entitle themselves to share, although the surrender had been made actually to the fleet. But, suppose the troops to land on a coast not hostile, but not on their own coast-I do not suppose that the possession of such a shore would draw the same consequences after it, for what difference would it make whether there were troops on shore or not? The enemy must know, that in a day or two the landing on a shore, to them hostile, must be followed by sure and certain captivity, whether there was a party of military or
"What additional terror does an army hold out? The consequences of captivity would be the same in either case, and unless there had been a notice and denunciation of particular severity, I do not understand that by the laws of war they would be ex posed to more than a rigorous imprisonment.1
"Where a capture is made by a conjoint expedi. tion, composed of a British naval force and an army of allies, the case is not within the provisions of the British prize act, and therefore the captors must altogether depend upon the government bounty for reward for such a capture.""
The claim of joint-captors is not invalidated by vitiated by the the fraudulent conduct of the actual captors.
fraud of the
The master of The Sirius, the capturing frigate, was charged with having, "contrary to the rule and practice of the navy," made no signal of an enemy, to other British vessels in sight; and Lord Stowell said, admitting the other to the benefit of joint-cap'The Dordrecht, 2 Rob., 57.
2 The Stella del Norte, 5 Rob., 350; The British Guiana, 2 Dod., 151.