as prize to the benefit of the captors, it becomes a question of special interest to determine who are, in law, to be considered as captors, and, consequently, to share in the prize. As a general rule, all the parties who are actually engaged in the seizure, or who directly contribute to the surrender, are properly to be considered as joint captors, and, consequently, -- only official persons on duty to come on board. You will without delay after reporting call upon the United States attorney at -, show him these instructions which are issued by order of the Secretary of the Navy, and give him all the information in your power respecting the circumstances connected with the capture of the You will then report and show these instructions to the naval prize commissioner of the district, who is hereby directed to ascertain and notify you of the earliest date at which your attendance shall no longer be required by the court, and to endorse the notification on this paper. You will on being discharged from attendance, if not in the meantime instructed, and whenever you need instructions respecting yourself, officers, or prize crew, immediately report to the commandant of the nearest yard or station or senior officer for such instructions. You will particularly bear in mind and strictly observe the injunctions of the law and of the department respecting captured property or persons under your charge, and recollect that you will be held rigorously responsible for any mismanagement of the trust confided to you. You, your officers, and prize crew are hereby detached from the and you will be careful to apply for and take with you their pay accounts and your own, to be presented to the paymaster of the yard or station at or nearest to the port to which you are ordered. The sea pay of yourself and officers will continue while in charge of the prize or under the orders of a flag officer or senior navy officer afloat, but your name will not be borne on the books of the vessel from which you are detached, and you will not be entitled to share in prizes made by such vessel after your detachment. Το (Signed) Commanding the United States 16. The prize-master in whose charge instruments are placed, or to whom arms are intrusted, will be held strictly accountable for their condition, and in case of loss or damage by neglect, or other cause not satisfactorily explained, the value will be charged to his account. The officer appointing a prize-master will require him to give a receipt in duplicate for the instruments and arms with which he may be furnished, one to be forwarded to the commanding officer of the station to which the prize vessel is bound, and the other to be retained by such appointing officer; and in case of any deficiency in the delivery of, or palpable abuse of them, the commanding officer of the station will at once have the matter investigated, and report the result to the Navy Department. 17. Prisoners of war are to be treated with humanity; their personal property is to be carefully protected; they shall have a proper allowance of provisions, and every comfort of air and exercise which circumstances will permit of. Every precaution must be taken to prevent any hostile attempt on their part, and, if necessary or expedient, they may be ironed or closely confined. If officers give their parole not to attempt any hostile act on board the vessel, and to conform to such requirements as the commanding officer may consider necessary, they may be permitted any privileges he may deem proper. 18. If any vessel shall be taken acting as a vessel of war, or a pri vateer, without having a proper commission so to act, the officers and crew shall be considered as pirates, and treated accordingly. share in the prize, but the actual amount of assistance necessary to constitute joint capture, under the different circumstances of chase and surrender, as determined by the decisions of courts of prize, depends in a great measure upon the character of the vessels and their position at the time of actual seizure.1 § 7. We will first consider joint capture by public vessels of war. All ships of war which are in sight at the time of the actual seizure are deemed to be constructively assisting, and, therefore, are entitled to share in the prize. The reason of this rule is, that public ships are under a constant obligation to attack the enemy wherever seen, and, therefore, from the mere circumstance of being in sight, a presumption is sufficiently raised that they are there animo capiendi; and this rule is additionally supported by the obvious policy of promoting harmony in the naval service. But the vessel claiming such constructive assistance must be actually in sight at the time of capture, or at least at the commencement of the engagement or chase, for there must be some actual contribution of endeavour as well as of general intention. If the circumstances of the case repel the presumption of the animus capiendi, as where the public ship is steering an opposite or a different course, inconsistent with the notion of an intent to capture, the claim to joint capture cannot be sustained. But the mere sailing on a different course is not sufficient to defeat this claim; for it is not always necessary that two vessels should pursue the same line, where, acting with a unity of purpose, the same object is sometimes better accomplished by one vessel sailing in one direction, and another in a different direction. But, if the ship claiming as joint captor, has changed her course before the actual capture, in such a manner as to show that she had abandoned all design of continuing the pursuit, the claim is defeated. So, also, if the prize has been merely reconnoitred, without any attempt at pursuit. It is very doubtful whether merely seeing the prize from masthead, however clearly the animus capiendi may be proved, will bring the case within the rule of being in sight. In all cases of constructive joint capture, the onus probandi rests upon the party claiming the benefit of the rule. Nor is it sufficient to prove that the joint captor was in sight of the actual captor; it is 1 Phillimore, On Int. Law, vol. iii., §§ 386, et seq. also necessary that she was seen by the prize. Both these facts must be established; the one by direct evidence, and the other by implication and necessary inference. Being in sight, means being seen by the prize, as well as by the actual captor, and thereby causing intimidation to the enemy, and encouragement to the friend. One of these will not do without the other.' § 8. But actual sight is not absolutely necessary to constitute constructive joint capture. If it be shown that the asserted joint captor was in sight when the darkness came on, and that she continued steering in 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 a demonstration that the vessels would have seen, and been seen by each other at the time of capture, if darkness had not intervened. In such a case, the vessel so pursuing is let into the benefit of joint capture. But, if the seizure is made at such a distance from the asserted joint captor that she could not have been in sight if it had been day, the claim cannot be sustained.' § 9. In respect to joint chase, much depends upon whether the vessels are acting in association, or separately with a common object in view. In the latter case, the question of actual or constructive sight will generally determine the claim to joint 1 The 'Drie Gebroeders,' 5 Rob., 339; the Jan Frederick.' 5 Rob., 120 ; the 'Robert,' 3 Rob., 194; the 'Lord Middleton,' 4 Rob., 153; the Spankler,' Dod. R., 359; the 'Rattlesnake,' 2 Dod. R., 35. As to what constitutes' signal distance' within the meaning of the Act, regulating the distribution of prize money, see the 'Aries,' 2 Sprague, 262; the St. John,' Ibid., 266; the 'Ella and Anna,' Ibid., 267; the Ella,' 2 Int. R. R., 117. 2 The Union,' 1 Dod. R., 346 ; the 'Financier,' I Dod. R., 61. The single fact, that a vessel is one of a common force, does not entitle her to participate in the prize shares, obtained by the separate members of the force. It must be shown, that such vessel was 'in sight,' or 'within signal distance' of the occurrence, out of which the taking of the prize was realised. She must have been so situated, as to be able, of her own accord, to contribute direct assistance to the captors, by deterring the enemy from resistance, or by aiding physically in overcoming such resistance, and the vessel to be aided must have possessed the means of communicating intelligent directions, to the one whose aid was needed. The Acts of Congress, on the subject of distribution of prize money, contemplate that it shall be shared among vessels, which, at the time of the capture, were in view of each other, so as to be able to receive and respond to signals correctly. A vessel, claiming to share in the proceeds of a capture, must show that she was within signal distance, of the vessel making the prize, in circumstances which might have justified the capturing vessel in demanding and expecting her assistance.-The 'Anglia, Blatchf. Pr. Cas., 566. capture, as stated in the preceding paragraph. If the claimant, or the prize, changed her course in the night, and, at the time of actual capture could not have been seen by each other in daylight, the mere fact that the chase had the effect of throwing the prize into the hands of the actual taker, will not vary the case. Constructive captures are never allowed to be deduced from such assistance, whether designed or accidental.1 § 10. No antecedent or subsequent services in the expedition will entitle a party to the benefit of joint capture, where he would not otherwise be entitled to share. Thus, a ship of war sent for reinforcements to Lord William Bentinck, on hearing the firing of the fleet upon Genoa, returned from Leghorn, and was in sight at the time of the capitulation; but, as the ship was ignorant of the object of the attack, and the captors were ignorant of her approach, she was not allowed to come in as a joint captor. So, of a ship of war which was despatched to join the contingent expedition against Buenos Ayres, but did not arrive till after the surrender.2 § II. In respect to captures made by ships which are associated in the same service or joint enterprise, under the same superior officer, as a general rule all are entitled to share as joint captors, although not in sight at the time of capture. The fleet so associated is considered as one body, acting together for one single object, and what is done by a part enures to the benefit of all. The only question to be considered is, whether the capturing ships at the time the capture was made composed, de facto, a part of the particular fleet. Thus, where a capture was made by ships composing part of a squadron employed in the blockade of the Texel, out of sight of the fleet and without any concurrence in chasing, the court held that the blockading fleet were all joint captors. So, where a prize coming out or entering a blockaded port is taken by one of the ships of a blockading squadron stationed off the mouth 1 The Neimen,' 1 Dod. R., 9; the 'Melanie,' 2 Dod. R., 122. The 'Buenos Ayres,' 1 Dod. R., 28; 'Genoa and Lavona,' 2 Dod. R., 88. Where a capture was made, of a blockade runner, between the several vessels forming the blockading squadron, but the capture took place after a chase, which carried the runner and the capturing vessel out of sight of the other members of the squadron-Held, that the latter vessels were not entitled to share in the proceeds of the prize, which is confined by the laws of the United States to two classes of vessels, those making the capture, and those within signal distance of the vessel making the capture.— The Cherokee,' 2 Sprague, 235. of the harbour, while the rest of the squadron, maintaining the blockade, are stationed at some distance. In the case of the 'Guillaume Tell,' a squadron was stationed to watch the harbour of La Vallette. The prize, in attempting to escape, was pursued and taken by a part of the squadron, while the others remained stationary. The claim to joint capture was allowed, notwithstanding the physical impossibility of active co-operation arising from the state of the wind.1 § 12. But mere association is not sufficient to entitle vessels to share as constructive joint captors; they must have a military character, and be capable of rendering military service; in other words, there must be an animus capiendi. Thus, a ship forming part of a blockading squadron, but totally unrigged, and incapable of rendering any service at the time of capture, is held to be as much excluded as one totally unconscious of the transaction; because, by no possibility, could that ship be enabled to co-operate in time. So of transports and store-ships, although associated in the same service with the actual captor, if destitute of a military character, and incapable of rendering assistance, they cannot be regarded as joint capIt is not sufficient that the enemy may have been intimidated by the presence of such vessels. Mere intimidation may be 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 such terror would not entitle them to share in the prize as joint captors.2. tors. § 13. Convoying ships are under no disability of claiming as joint captors an account of their employment, if, in other respects, entitled to share in the prize, unless the capture is made at such a distance as would remove them from the per 1 The 'Harmonie,' 3 Rob., 318; the 'Henriette,' 2 Dod. R., 96; the 'Guillaume Tell,' Edw. R., 6; the 'Empress,' 1 Dod. R., 368. 2 The Cape of Good Hope,' 2 Rob., 274; the 'Twee Gesuster' and 'Le Franc,' 2 Rob., 284, note. A captain of marines who happened to be on board a man-of-war when she took a prize, but who did not belong to her complement, only shared as a passenger.-Wemys v. Linzee, 1 Dougl., 324. A captain of a ship being on board at the time that his ship takes a prize is entitled to prize money, even though he be in arrest, and another officer has been sent on board to command.-Lumley v. Sutton, 8 T. R., 224. |