British subjects, which may have been captured by the enemy, as well as the practice of British captors restoring or discharging any captured ship or cargo of the enemy upon an agreement for ransom 76. With this object all ransom bills given by British subjects are declared to be null and void; and accordingly no action could be brought upon any such ransom bill in a British Court, whilst the parties who may have given any such ransom bill are liable to be proceeded against in the High Court of Admiralty for heavy penalties, "unless it shall appear to the Judge of the said Court that the circumstances of the case were such as to justify the said ransoming, or contract, or agreement for the same." On the other hand, any Commander of a British cruiser who shall have "actually quitted, set at liberty, restored, or discharged," any ship or cargo, after the same shall have been taken as prize, upon any agreement for the ransoming thereof, "shall for every such offence be liable to be articled in the High Court of Admiralty of England, at the suit of her Majesty in her office of Admiralty, and upon conviction thereof shall forfeit and suffer such penalty or fine as the said Court shall adjudge, unless it shall appear to such Court that the circumstances of the case were such as to have justified the same." The most recent of the prize Acts would thus appear to be perfectly consistent with that view of the Law, which Lord Stowell adopted under the Prize Act which was in force in 1803, when he said, "Ransoms, under circumstances of necessity, are still allowed", but the burden of proof of any such existing necessity is 76 The Act for manning the Navy in the last war against Russia, 17 Vict. c. 18. contains the usual prohibitory enactments against ransom under any form. 77 Ships taken at Genoa, 4 Ch. Rob. p. 403. imposed by the Statute on the captors." In the United States Ransoms have never been prohibited by Congress, either in reference to enemy's property or in reference to neutral property. Chancellor Kent, in commenting upon the English view of the Contract of Ransom as having a tendency to relax the energy of belligerents and to deprive cruisers of the chance of recapture, maintains that the practice of Ransom is in many views highly reasonable and humane. Other Nations regard them as binding, and to be classed amongst the few legitimate commercia belli 78. tures. § 184. Joint captures are said to be made when, Joint Capbesides the parties who are actually engaged in the capture, other parties contribute to the surrender of vessels by constructive assistance. When two or more ships actually take part in a capture, it is usual to speak of them as the actual captors, although the enemy strikes his flag in fact to one of them; but it may happen that the approach of a vessel which has never been able to take part in the contest, has intimidated the enemy and induced him to surrender. Such a vessel cannot be said to be an actual captor, and yet she may have materially influenced the capture by encouraging the efforts of the one party and discouraging the resistance of the other party, at the same time that she may have been using her best endeavours to arrive in time to give actual assistance to her friend". Policy and Equity under such circumstances, concur in pronouncing her endeavours to take part in the contest to have been of assistance to the actual captors, and in regarding her in the light of a constructive captor. Joint 78 Kent's Commentaries, I. 79 La Flore, 5 Ch. Rob. p. p. 104. Azuni, Droit Maritime, 268. The Virginia, 5 Ch. Rob. Tom. II. c. 4. Art. vi. p. 126. captors may accordingly comprise parties who have not taken any actual part in a capture beyond that of having actually set themselves in motion, and arrived within sight of the prize at any time before it has surrendered. It is necessary however, in order to establish a claim of joint capture, to prove that the vessel claiming to be a joint captor was seen by the prize as well as by the actual captor, and thereby caused discouragement to the enemy, whilst she gave encouragement to the actual captor; but it is not necessary to prove that she was seen by the prize at the moment of surrender, if she had been seen by the prize beforehand, and might have been seen at the time of surrender, if the weather had been clear, or the darkness had not intervened. The law is in one respect more favourable to public ships of war than to private ships of war. The animus capiendi is always presumed in favour of the former, if they should be in sight, as public ships are under a constant obligation to attack the enemy whenever they may meet with them, whereas private ships of war are not bound to put their Commissions in force upon every discovery of an enemy. In the case therefore of a privateer which claims to be regarded as a constructive joint captor, positive proof must be given that her commander really intended to take part in the contest; either by showing that she was actually engaged in the chase 83, or, if she had been engaged in the contest and been beaten off, that she was still in sight of the enemy and was intending to resume the contest. 80 The Galen, 2 Dodson, p. 19. 81 The Union, 1 Dodson, p. 746. The Financier, ibid. p. 61. The Fadrelandet, 5 Ch. Rob. p. 124. But a public ship 82 La Flore, 5 Ch. Rob. p. 268. 83 L'Amitié, 6 Ch. Rob. p. 267. 84 La Virginie, 5 Ch. Rob. p. 124. The Santa Brigada, 3 Ch. Rob. p. 52. of war is entitled to the character of a constructive joint captor, where the actual captor is a privateer, under the same conditions, as if they were both public vessels of war 5. On the other hand a public vessel which is not under orders to make captures, although its commander may have a Commission of War, enjoys no privilege in respect of a presumed animus capiendi over a private vessel which has a Commission of War. Thus a revenue cutter, of which the commander is authorised but not commanded by his Commission to make captures, was held by Lord Stowell to be in a condition analogous to that of a private vessel of war. Such vessels are not bound to attack and pursue the enemy more than other private vessels of war; and as all which they derive from their Commission is an authority to attack the enemy, they are thereby only put on a footing with private ships of war. On the other hand, transport ships, although they may sail under pennants and are associated with fleets of vessels of war, will not be entitled to the character of constructive joint captors, if they are associated with them solely in their mercantile character; for if they have no Commission of War, they cannot be allowed to establish a claim of mere constructive assistance 87, even if their appearance should have caused actual intimidation to the enemy. Lord Stowell held, that the fact of terror, however strongly proved, would not establish that cooperation, nor that active assistance, which the law requires to entitle noncommissioned vessels to be considered as joint captors. With respect to captures made by boats, it is a general rule that the crews of the ships to which they belong are entitled to share as joint captors with the crews 85 The Dree Gebroeders, 5 Ch. Rob. p. 339. 86 The Bellona, Edwards, p. 65. La Flore, 5 Ch. Rob. p. 270. 87 The Cape of Good Hope, 2 Ch. Rob. p. 282. Distribution of Prize amongst joint captors. 66 of their respective boats, unless the capturing boats have been detached for a time from their proper ships, and are attached to some other ship; but the claim of constructive joint capture by boats founded on the mere facts of such boats being in sight at the time of capture, has been rejected by Lord Stowell®. "I am not in possession," he says, "of any case in which a boat, without any actual assistance or previous concert, has been held, from being in sight only, to be entitled to share as a joint captor, even to the extent of the persons composing the boat's crew, much less to establish a claim of joint capture for the whole ship to which the boat belongs." § 185. The distribution of prize amongst Joint Captors, in the absence of any positive Statute or Ordinance of the State to which they belong, is made upon general principles according to a scale proportionate to their respective force; for in that proportion they may reasonably be supposed to have contributed their aid in overpowering the enemy, if they have actually taken part in the contest, or to have caused an intimidation by their approach, which had led to his surrender, before they have been able to take part in the contest. Bynkershoek, who is averse altogether to the doctrine of constructive joint capture, advocates in the case of actual joint captors a distribution according to their respective force, from the difficulty of measuring by any more accurate test the degree in which each has assisted to overcome the enemy. Such a rule is generally adopted in the present day, in cases where the fleets of two or more allied Powers have acted in conjunction. But in the application of the rule different results will be arrived at, according as the respective force of the captors is 88 The Odin, 4 Ch. Rob. p. 327. |