decide between contradictory representations, and it is to be regretted that the decisions of the courts on this subject have not always been so uniform as it is highly desirable they should be.” Again, on page 23, he says: "The being in sight, generally, and with some few exceptions, has been so often held to be sufficient to entitle parties to be admitted joint captors, that where that fact is alleged, we do not call for particular cases to authorize the claim; but where that circumstance is wanting it is incumbent on the party to make out his claim by an appeal to decided cases, or at least, to principles which are fairly to be extracted from those cases."

There does not appear to have been any decision inconsistent with that in The Mars, much less, any one that could control it; and it cannot be said that in the year 1800 the English courts extended the doctrine of constructive capture by association to cases of blockade, much less that there was any such settled and well known rule in that respect as to create a presumption that Congress intended to adopt it, even if they had copied the provisions of the British statute. In such case it might have been inferred that they were satisfied with the decisions that had been made in regard to ships in sight and approved of the rule thus adopted. But their intention in this respect was not left to inference. They introduced a new provision giving to ships in sight the rights of joint captors, thus expressly declaring how far they intended to adopt the doctrine. of constructive capture, and repelling the presumption that they intended to sanction it in other cases.

But it has been said, that previous to the passing of our prize act in 1862, the doctrine of constructive capture by association had been fully established by judicial decisions, and especially in case of blockade.

There have been no such decisions in this country. No such construction, therefore, had been given to our own statutes. All the adjudications relied upon, were made in England in giving a construction to their own prize acts. Those decisions require some attention.

The case of The Vryheid, which was decided in 1799, has already been referred to. The claim of a ship to share in a prize made by

a fleet, of which she had been a part, was rejected upon the ground that she had been temporarily detached upon a separate service before the chase began. There are subsequent decisions to the same effect. See The Trinidad, 5 Rob. 86.

In The Forsigheid, 3 Rob. 315, 316, the ship of war Director, being one of the fleet which was blockading the Texel, was sent to look out, and while out of sight of the rest of the fleet, made the capture. The captured ships were not seen by the fleet till they were in the possession of the actual captor." Sir WILLIAM SCOTT decided that the whole fleet was entitled to share in the prize. This decision was on the 17th of June 1801.

On the same day in another case, The Harmonie, 3 Rob. 318, it appeared that the Scorpion and the Fox were sent by Captain McDougal, commander of a squadron employed in the blockade of the Texel, as small vessels that drew less water, to cruise for the purpose of keeping up the blockade nearer in upon the coast, where large ships could not safely venture on account of the shoals. It was admitted that the capture was made ten leagues from the fleet, after a chase of three or four hours and completely out of sight." Sir WILLIAM SCOTT held that the fleet were constructive joint captors.

In The Genereux, decided by the Lords in 1803, referred to by the court and counsel in The Guillaume Tell, Edw. 9, 16, the capture was made by the Foudroyant and two other ships. The Lion claimed to be admitted as joint captor. It appears that they all belonged to a squadron under command of Lord Keith, who, having received information that a French squadron consisting of four ships was on the way for the relief of the French garrison at La Valette, immediately made such disposition of his ships as would be most likely to intercept them. "The Foudroyant and two other ships of the line were ordered to look out for the enemy in the S. S. E., and the Lion was ordered to take a station off the passage between Gaza and Malta," and the rest of the vessels were stationed in another place or places to prevent the enemy from entering La Valette. The Foudroyant and the two vessels with her fell in with the enemy and captured the Genereux on that side

of the island which is opposite to La Valette. At the time of the capture the Lion was sufficiently near to hear the report of the guns during the engagement. The Lion and the other stationed ships formed a part of the same squadron with the Foudroyant and her two associates. All were under the same commander, and took their respective stations by his order to intercept the enemy. Such were the allegations in behalf of the Lion. The court held that the allegations were insufficient, that is, that if all the facts thus alleged were true, still the Lion was not entitled to share because she was not in sight at the time of the capture. In The Guillaume Tell, decided in 1808, Edw. 6, the Northumberland and Culloden were part of a squadron blockading the port of La Valette, in which were known to be two French ships of war.

The capture of these ships was a special object of the squadron, they having also the general purpose of preventing the escape of other vessels and taking the place.

One of them attempted to escape in the night, was pursued and captured by some of the fleet. The petitioning vessels had taken an active part in the preconcerted measures to prevent the escape, but did not join in the pursuit, nor leave their anchorage. It does not clearly appear, from the statement of facts by the reporter, whether the capture was made within sight of the petitioning vessels

or not.

Sir WILLIAM SCOTT, at the close of his judgment, states the grounds upon which it rested, as follows:-"Now, in this case, there was not only an actual sight; not only a perfect conusance of what was going forward, but as complete and uniform and persevering an association in this particular object, as well as in the general objects of the blockade, as can be imagined. I am therefore of opinion, that the Culloden and Northumberland are entitled to share." It is to be observed that the judge states, as a material circumstance, that these vessels were in sight. I do not think that it is to be inferred that they were in sight at the time of capture, but only at the beginning of the chase, and this, I suppose, was relied upon to distinguish it from The Genereux. There is another circumstance which is emphatically dwelt upon by the

judge. It is that the vessels of the squadron were associated not only in the general object of a blockade, that is to prevent the ingress or egress of any vessels, but in the special purpose of preventing this French ship of war from escaping. After having spoken of these ships as being part of a squadron associated for the express purpose of making the capture, he says: "The whole fleet were acting with one common consent, upon a preconcerted plan for the capture of this prize;" and again, in the quotation before made from the concluding part of his opinion, we notice this explicit language: There was . . . . as complete and uniform and persevering an association in this particular object, as well as in the general objects of the blockade, as can be imagined.”1

From this it would seem that under the pressure of the authority of The Genereux, the learned judge no longer insisted upon the doctrine which he had laid down in The Forsigheid in the year 1801. But in 1809, that case came again before him, after proof had been taken to support the allegations which he had admitted, and he then reaffirmed his former decision-using the following language: Upon the principle which I laid down upon the admission of the allegation, I am bound to pronounce that the whole fleet must be entitled as joint captors." Edw. Rep. 127.

In Le Bon Adventure, decided in 1810 by the Lords (1 Acton 239), Sir WILLIAM GRANT, in delivering the opinion of the court, states the question to be "whether a vessel commencing a second chase, in sight of a fleet of which she had constituted a part before she had been detached, by signal, upon a former chase, and capturing the second chase at any distance from such a fleet, would necessarily, upon this principle, be compelled to let in the claim of the whole fleet, to share in a prize so made, notwithstanding

1 From this judgment it would be inferred that merely being part of blockading squadron to prevent the egress of all vessels, without the special object of capturing that ship, or preconcerted measures for that particular purpose, would not have entitled the ships which remained at anchor to participate with those who pursued and captured, nor that being associated both for that special purpose and the general object of the blockade would have been sufficient without at some time being in sight.

such fleet afforded no assistance or co-operation in the capture, but actually bore away from the captor on another tack." He declared that no such principle had ever been recognised, and the claim of the fleet was rejected. But in The Empress, decided by Sir WILLIAM SCOTT, in 1814, (1 Dod. 368), the ship of war Beagle, while pursuing an enemy's vessel, discovered another ship of war, the Rover, also in chase of her. Both continued the pursuit for some time, when a second enemy's vessel hove in sight. Thereupon the captain of the Beagle, being the superior officer, ordered the Rover to discontinue the pursuit of the first and pursue the second enemy. She did so, and after continuing the chase for ten hours, and until out of sight of the Beagle, made the capture. The Beagle was admitted to share in the prize by reason of the alleged association; although her meeting the Rover on the ocean was accidental, and she had continued her course without pause or deviation in pursuit of the first enemy's ship, and had afforded no assistance or co-operation in the capture, but actually bore away from the captor. It is not easy to see how the officers and crew of the Beagle could be deemed to have taken the second enemy's ship when they were, all the time, sailing for another object, in a different direction until out of sight, and did not even know of the capture until some time afterwards.

The L'Etoile, 2 Dod. 107, does not go so far as The Empress. In The Naples Grant, 2 Dod. 277, it is held as a general rule that in order to confer a right to share in a prize upon a vessel which is engaged in the common service in a blockade, or in naval or military operations of that kind, it must be shown that such vessel was present at some period of the operation, either at the commencement, the intermediate stage, or at the time of the surrender. It is added that this rule may not be without exceptions.

In The Nodstern, decided in 1809, by the Lords (1 Acton 140), the court say "upon this we are decidedly of opinion, that it is not sufficient that a joint enterprise shall exist at the time, except it expressly refer to the capture in question; or, in other words, that the capture grew out of the purpose and object for which the