in various edicts, which have been made on the subject of privateers whenever foreign powers have complained of their depredations. But as those edicts are in every body's hands, I think it unnecessary to give here a more particular account of the regulations which they contain.

I think it more worth while to inquire whether the captains of privateer ships, who are not themselves the owners of the vessels, may enter into a partnership with each other for sharing in the prizes which they may each separately take? If they are sent out merely to cruise and make captures, and have no further authority, it is certain that they cannot form such partnerships without the consent of their owners, otherwise, the agreements which they make with each other are to be considered as null and void.

Let it not be objected,* that by the law of Solon abovementioned, the partnership contracts of those who go out to plunder are declared valid, for it is sufficiently clear, that the legislator only meant to speak of those who are their own masters, and go out to plunder on their own account. So, if the owners of privateers should enter into partnerships with each other, and agree that their prizes should be equally divided among themselves, such agreements as well as every other which they might make, would undoubtedly be valid; because every one may dispose of his own property as he thinks fit: but such a power can never be exercised by captains of private armed ships, unless they are also the owners of them, which is hardly ever the case.

We are speaking here only of those captains of privateers who have received an authority from their owners merely to cruise, and who exceed it by entering into particular agreements with each other. There was once a cause of very great moment decided upon this question, and which was even carried to the court of revision. Two privateers, one belonging to A and the other to B took a vessel together, and after

It ought to be remembered, that in Holland, at the time when our author wrote, the imperial law of Rome was the common law of the land. This will sufficiently account for the constant application which he endeavours to make of its rules and principles.

T.

wards (as B alleged) the two captains agreed together, that any future prize that they should make, should be divided between them. Afterwards, they separated, and A's vessel alone took another prize, which B insisted should be divided between them, by virtue of their agreement. A denied that the agreement extended to prizes separately made, and if it did, he contended, that it was illegal and void. And so it was determined by the inferior court at Flushing. But B having appealed to the supreme court, the cause was decided in his favour, on the 3d of March 1696, and that judgment was affirmed by the court of review on the 4th of October 1697. To the same effect is the opinion of several advocates in Consilia Belgica,* and a similar decision was given by the court of admiralty of Amsterdam, in 1665.

But all these decisions, except that of the court of Flushing, appear to me to have been erroneous, and I think that the cause ought to have been determined in favour of A. I have read with astonishment in the acts of the supreme court, in which the opinions of several judges of that tribunal and of the court of review are inserted, that in the particular case that I have spoken of, the only question that was agitated was, whether there had actually been an agreement between the two captains, that the prizes which they should separately take should be common between them, or whether it contemplated merely those which they should take in company; but the question of the legality of the agreement, which was the first that suggested itself to me, does not appear to have been even thought of.

Admitting that it had been expressly agreed between the two captains, that all the prizes which they or either of them should take, whether jointly or separately, should be equally or proportionably divided between them, still I do not think that A was at all bound by that agreement. He had sent out his vessel at his own risk, for the sole purpose of cruising and making captures; he had given no other instructions to his captain, and had in no manner authorized him to

* Vol. 4. Consil 204.

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 B'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 en

titled 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.t

The precise expression used in the original: it probably means every thing susceptible of being made booty of war, which is not a part of the vessel or of her cargo, (properly so called.)

T.

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 fin. 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, Traité 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 intimi1 dating 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 suprà, p. 102.

In England, the same distinction appears to be adopted. Ships of war 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 Rob. 14. Am. edit.—In a later case, the same judge determined, in a contest between a king's ship and a privateer, that the mere being in sight was sufficient in the former to support the animus capiendi, and entitle her to a share of the prize. The Flore, 5 Rob. 239. Am. edit.

But, on the contrary, when a similar controversy arose between similar parties, and the privateer claimed a share of the king'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'Amitié, 6 Rob. 264. Am. edit.

We have not been able to find a single case in any of Dr. Robinson's Reports, in which the naked question has been agitated exclusively

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