The Guilliaume Tell. Edw. the station. As to the impossibility of their joining in the chase, arising from the state of the wind, that will not exclude them. At Aboukir, The Culloden was on shore during the whole of the action, but she was not, on that account, disqualified from sharing; the belief that she would get off was operating every moment as an encouragement to our own fleet, and as a source of apprehension to the enemy. It is said that these ships were laid up in the [*11] Marsa Sirocco Bay, which we deny, both in respect to the place itself, and the condition of the ships. Whether the witness, M'Donald was deceived by the appearance of the storm, or whether he acually saw the flashes of the guns during the chase, may be matter of dispute; but it is certain that the escape of the enemy was known on board The Culloden and Northumberland, and it is equally certain, that these two ships were associated with the rest of the squadron, as well in the particular service by which the capture was effected, as in the general service of the blockade of the harbor. JUDGMENT. SIR WILLIAM SCOTT. The present question arises upon a claim which has been interposed on the part of his Majesty's ships Culloden and Northumberland, to share in this prize as joint captors. It appears that the harbor of La Valette, at Malta, from which this prize (an enemy's vessel of war) was attempting to make her escape, had been for some time blockaded by an English squadron, and that the whole of the island was in possession of the English, and the inhabitants, except this port, which still continued in the hands of the French. The object of the blockade was to reduce the port, and of course to obtain possession of the ships within it. Much evidence, which it is not necessary for me to enter into, has been adduced relative to the history of the blockade, to show under whose direction it was instituted, and by whom it was carried on. It is an admitted fact, that Sir Thomas Trowbridge had taken the command of the squadron during the absence of Lord Nelson, and that his [*12] attention had been particularly directed to the capture of * this and another French ship, which were blocked up in this harbor. Whether he issued any particular orders respecting these ships has been a subject of controversy between the parties; but it is of little importance, because, in succeeding to the command, he necessarily succeeded to all the orders given by his predecessor, and consequently will be entitled under them. These two French men of war were known to be in the harbor, and the obtaining possession of them must therefore be presumed to be in the intention of every ship upon The Guilliaume Tell. Edw. that service; for it is not to be lost sight of, that they were associated in one common enterprize, of which the capture of these vessels formed no insignificant part. If this ship had been taken in the harbor of La Valette upon its final reduction, as the other vessel was, no doubt could have arisen upon the subject; but as the capture was made at a distance from the port, a question is started, whether it is to be considered as a capture by the whole fleet, or only by the individual ships by which she was pursued and taken. Now, it must have presented itself to the minds of all the naval officers employed upon that duty, that these ships would, if possible, attempt an escape, and there is abundant evidence to show that every precaution was adopted to frustrate the attempt. Every necessary arrangement was made by Sir Thomas Trowbridge with the commanders of the dif ferent ships, in expectation of this probable event; they were ordered to be on the look-out, and the proper signals to be used in case the blockaded ships should attempt to escape were regularly communicated. It does not appear that any particular ships were assigned to proceed after them, and I think one may see a sufficient reason for that, because the time of the escape, the course [13] they might adopt, and the state of the wind at the time the escape was to be attempted, were all equally uncertain. In such a state of circumstances, no other order could be given than the general order, that in whichever quarter the attempt might be made, a sufficient number of the contiguous ships should pursue. There was a general communication to all the commanders, that they were to act as emerging circumstances might require; but it never could have been intended that every ship of the squadron was to join in the pursuit, when it would have had the effect of opening the harbor for all other blockaded vessels, of which some, in consequence of this total desertion of the blockade, must have effected their escape. The animus persequendi is sufficiently shown by the part which they took in the general plan of coöperation: they were all in readiness to act under the general order to pursue, as occasion might require. It appears that they had information not only of the intention to escape, but also in a sort of general though uncertain way of the time and manner of it. It was known that on the first dark night the enemy were to push out some merchant ships as a decoy, and that then The Guilliaume Tell was to follow. She was seen in a state of preparation, and was expected on this day to make the attempt the following night, so that Sir Thomas Trowbridge, and his ship The Culloden, in particular, would be pretty much on the alert. It is proved, that he ordered a lieutenant and three men to be sent alternately from The Culloden and Northumberland, to a post on shore called the Bel The Guilliaume Tell. Edw. the station. As to the impossibility of their joining in the chase, arising from the state of the wind, that will not exclude them. At Aboukir, The Culloden was on shore during the whole of the action, but she was not, on that account, disqualified from sharing; the belief that she would get off was operating every moment as an encouragement to our own fleet, and as a source of apprehension to the * enemy. It is said that these ships were laid up in the [*11] Marsa Sirocco Bay, which we deny, both in respect to the place itself, and the condition of the ships. Whether the witness, M'Donald was deceived by the appearance of the storm, or whether he acually saw the flashes of the guns during the chase, may be matter of dispute; but it is certain that the escape of the enemy was known on board The Culloden and Northumberland, and it is equally certain, that these two ships were associated with the rest of the squadron, as well in the particular service by which the capture was effected, as in the general service of the blockade of the harbor. JUDGMENT. SIR WILLIAM SCOTT. The present question arises upon a claim which has been interposed on the part of his Majesty's ships Culloden and Northumberland, to share in this prize as joint captors. It appears that the harbor of La Valette, at Malta, from which this prize (an enemy's vessel of war) was attempting to make her escape, had been for some time blockaded by an English squadron, and that the whole of the island was in possession of the English, and the inhabitants, except this port, which still continued in the hands of the French. The object of the blockade was to reduce the port, and of course to obtain possession of the ships within it. Much evidence, which it is not necessary for me to enter into, has been adduced relative to the history of the blockade, to show under whose direction it was instituted, and by whom it was carried on. It is an admitted fact, that Sir Thomas Trowbridge had taken the command of the squadron during the absence of Lord Nelson, and that his [*12] attention had been particularly directed to the capture of this and another French ship, which were blocked up in this harbor. Whether he issued any particular orders respecting these ships has been a subject of controversy between the parties; but it is of little importance, because, in succeeding to the command, he nece succeeded to all the orders given by his predecessor, and e will be entitled under them. These two Fren known to be in the harbor, and the obi must therefore be presumed to be in that service; for it is not to be lost sight of, that they were associated in one common enterprize, of which the capture of these vessels formed no insignificant part. If this ship had been taken in the harbor of La Valette upon its final reduction, as the other vessel was no doubt could have arisen upon the subject; but as the captine E made at a distance from the port, a question is started, whether is to be considered as a capture by the whole fleet, or only by the mividual ships by which she was pursued and taken. Now, it mus have presented itself to the minds of all the naval officers employe upon that duty, that these ships would, if possible, attempt an escace and there is abundant evidence to show that every precatio væ adopted to frustrate the attempt. Every necessary magnet v made by Sir Thomas Trowbridge with the commanders of the diferent ships, in expectation of this probable event: they were anteri to be on the look-out, and the proper signals to be used in case the blockaded ships should attempt to escape were regulady commun cated. It does not appear that any particular ships were asimetπ proceed after them, and I think one may see a sufficient reason for that, because the time of the escape, the course (*B they might adopt, and the state of the wind at the time the escape was to be attempted, were all equally certain. In 1 state of circumstances, no other order could be given fan te ge ral order, that in whichever quarter the amem mig le made a sufficient number of the contiguous ships should pursue The w a general communication to all the commanders, that fly weer z act as emerging circumstances might require; but it real te been intended that every ship of the squadron was to you in fie pursuit, when it would have had the effect of opening the interior al other blockaded vessels, of which some, in conseguene of the desertion of the blockade, must have effected there. The per mus persequendi is sufficiently shown by the party in the general plan of cooperation: they were al in stoc under the general order to pursue, a cit appears that they had information not only fo but also in a sort of general though the time and manner of it. It was known that one for were to push out some merchant shine Guillaume Tell was to fo tion, and was P ing night, in pant The Guilliaume Tell. Edw. videre, to give notice of the movements of the enemy, and that upon observing them under weigh, a preconcerted signal was to be [*14] made from that post, by which it was to be understood * that the French ships were in motion, and that every effort ought to be made to intercept them. The two ships setting up the present claim, The Culloden and Northumberland, were lying at anchor in the Marsa Sirocco Bay, near Lavalette. The Northumberland had a number of her crew sick on shore at the time, but still she was not disabled by that deficiency of her crew, at least in the opinion of her commander, as she was actually ordered to sea the next morning in pursuit of the French ship, though that order was countermanded upon its being understood that The Foudroyant and Lion were up with the enemy. It has also been objected, that The Culloden was not in a fit condition to put to sea, in consequence of an accident which she had met with on going into the bay; but it clearly appears that the damage had been repaired, and in proof of that there is the fact that she afterwards made the voyage from Malta to England, without receiving any further repairs whatever. At such a moment of expectation and anxiety, it cannot be supposed that Sir Thomas Trowbridge put his own ship out of the course of coöperating and participating in whatever hazards or advantages might arise. It is proved that every evening men were sent from The Culloden and Northumberland to watch the movements of the enemy; that on the night of the pursuit the signal rockets and the flashes of the guns were seen from these two ships in the neighboring bay, and that a seaman was despatched from the signal station to inform them that The Guilliaume Tell was in motion; it cannot be denied, therefore, that they knew perfectly well what was going forward, and that they were coöperating in the measures established generally for prevent ing the escape. But it has been objected, that they had not [*15] the physical means of pursuing, because the state of the wind was such, that they could not quit the bay. Whether they would have pursued, if it had been physically possible, it is not necessary to inquire. In the case of chasing by a fleet, the animus persequendi in all is sufficiently sustained by the act of those particular ships which do pursue. It is, I think, highly probable, that even if the wind had been fair, The Culloden and Northumberland would have remained, as some of the other ships off La Valette did, in a state of inactivity, reasonably judging from the precautions taken, and from the flashes of the guns, that a sufficient force had already gone upon the service. Therefore, unless it can be maintained, which it certainly cannot, that the whole of a squadron must in all cases pursue, and that the other ships which remained inactive off La Va |