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of others may have been the cause that the enemy has either surrendered sooner or been more easily subdued; but we are not to consider for what reason the vessel was taken or surrendered, but who took her. In the same manner, we should not admit the fort,* town or fleet in whose presence a capture was made, to a participation in the prize, even though it might be said to have been induced to surrender, by the fear which their presence excited. On the other hand, it is clear, that if another vessel has joined the captor in fighting the enemy, an accidental partnership must be considered as having taken place between them, and the reason of the thing requires, that what has been taken by their joint efforts, should be divided among them in proportion to their respective strength. Nor are we to discriminate in such a case between the different degrees of exertion; for that would be too difficult in practice; but we only consider whether the vessel which was present at the capture, did actually fight, and by her assistance, contribute to the victory.
Analogous to this principle is the doctrine which the civil law lays down on the subject of animals feræ naturæ, which do not become the property of those who pursue, but of those who actually take them.t
o The remainder of this chapter is so entirely and exclusively local, that we have not thought it worth while to translate it.
between privateers. In one case, indeed, a share in a prize was allowed to one of that description in competition with another, from the circumstance of his being in sight at the time of the capture, coupled with that of having suiled in company with the principal captor, and the capture was that of a defenceless neutral vessel, in which no fighting was required: The William & Mary, 4 Rob. 312. Am. edit. But we have not discovered one in which the question turned singly on the circumstance of being in sight, at the time of the capture; therefore, we presume, that the principles established in L'Amitié, would prevail in such a case.
7. * In England, land forces are not considered as entitled to share in a capture, unless they have actually assisted and co-operated in it. The Dordrecht, 2 Rob. 53. Am. edit.
T. + Inst. De Rer. Divis. 13.
Of the Responsibility of owners of Privateers.
Y the laws of our country, contained in the Formæ Ad
miralitatum and several edicts of the states-general, privateers are not permitted to sail from our ports, without giving security to answer for their good behaviour, that they will do no injury to neutrals, and that they will bring their prizes to legal adjudication, by the court of admiralty of the place where the security is given.*
The amount of this security has varied. It was at first required to be in ten thousand florins, the ship and the cargo at the same time remaining answerable for the consequences of the privateer's unlawful conduct. Afterwards it was ordered, that the owner should give security in twelve thousand, and the captain in ten thousand florins, the owner's bond to be resorted to in the first instance, and if it should not prove sufficient, then recourse might be had to that given by the captain. But by the last edict which has been made upon this subject, it is merely provided, that security shall be given in the sum of thirty thousand florins, and the law does not
Forme Admiral. of the 13th of August 1597. SS 5. 69.—of the 15th of Fuly 1634. § 5.
+ Edicts of the 1st of April 1622.-9th of August 1624, and 22d of October 1627.
| Forma of 28th of July 1765. 9 3.
§ About $12,000.-In England, the security given by a privateer is £ 3000 ($13,320) which is reduced to one half if the vessel carries less than 150 men. Horne's Compendium of Admiralty Laws, p. 9.-In France, by a decree of the 2d Prairial, 11th year, (22d of May 1803), the amount of such security is fixed at 74,000 francs (about $14,095) reduced in the same manner to one half, if the privateer is navigated by less than 150 men. Dict. Univ. de Commerce, verbo Course. By an act of congress, made during the partial hostilities between the United States and France, priva
specify, whether by the captain or by the owners. It appears to me, however, that the captain is the person who is to give the security, because it is he who is to bring the prize into the port from whence the vessel has sailed. I might mention here several treaties between the states-general and other powers, by which it has been stipulated, that captains and owners of privateers should give security not to do any thing in violation of existing treaties, but as they do not enter into further details, I think that I may safely pass them over.
Thus much being premised, I shall proceed to inquire, whether, if a privateer has made an illegal capture, the damage suffered in consequence thereof is to be repaired by the captain, his securities, or the owners of the capturing vessel, and if to the latter, then to what extent they are liable? On this question, the Dutch lawyers have answered,* " that if the captain of a privateer ship has wrongfully taken a neutral vessel, and she should be lost in consequence of his having put an ignorant prizemaster on board of her, the party injured may sue, at his pleasure, the owner of the privateer, the captain, his securities and every one of them, until he recovers the whole amount of the damage, even though it should by far exceed the value of the vessel that made the capture.” Let us now consider this subject in detail.
A doubt cannot be entertained of the liability of the captain to the whole extent of the damage suffered in consequence of his unlawful capture. He was employed for the purpose of capturing enemies, not neutrals; if, therefore, he has made prize of the latter, he has exceeded his authority, and is consequently liable for all the damage which the neutral has suffered. This principle is clearly sanctioned by the edict of the states-general, of the 1st of April 1622; for, after
teers were directed to give security in $14,000, if the vessel carried more than 150 men, and in half that sum if she carried less. Act of the 9th of July 1798, S 4.-4 Laws U. S. 165.
in Spain, however, according to their prize ordinances of 1779 and 1796, (we have not seen that which was probably made at the beginning of the present war), security is only required from all privateers, without distinction, in 3000 rials de vellon, equal to $1500.
T * Consil. Belg. vol. 4. Consil 205.
directing that security shall be given by the captains of privateers, in the sum of ten thousand florins, that they shall bring their prizes into the port from which they shall have sailed, the law proceeds and says: “reserving, nevertheless, to those who shall have suffered damage by any unlawful act committed by the captain beyond the extent of his commission, their personal action against the said captain and others who shall have occasioned the said damage."
As to the securities, the advocates who subscribed the opinion above mentioned, appear to me to have been mistaken; for, those securities cannot, I think, be made responsible for the whole damage suffered, unless they have bound themselves to that extent; but if they have merely stipulated in a certain fixed sum, as is usual in such cases, they cannot be made liable beyond its amount, nor can they be called upon to answer for any other acts than those for which they have expressly made themselves responsible; as for instance, if they have become bound for the carrying of the prizes into a particular port, and the prizes have been actually carried thither, I conceive that they are discharged, and that it is nothing to them, whether the captures have been lawfully or unlawfully made, unless they have bound themselves for that likewise. But because captains of privateers are in general so poor, that they are not able to make good the damage which they have occasioned, and because the securities are not in general bound beyond a certain sum, which, after being compelled to pay, they may recover back by an action against the owners, it is upon the owners that the whole burthen falls in the end. Let us, therefore, as to them, inquire in the first place, whether they are liable for the whole of the damage suffered, or whether, as in the actio de pauperie and actio noxalis,* they are
The first of these actions was given by the Roman law against the owner of a quadruped, which had done an injury to some person, by kick. ing, biting, &c. which was called pauperiem facere. See on this subject, the title of the Digest, si quadrupes pauperiem fecisse dicatur. Dig. 1. 9. tit. 1.
The actio noxalis lay against the master of a slave for a theft or other injury done or committed by him. Dig. 1. 9. tit. 4. De noxalibus actionibus.
In both these cases, the owner or master was discharged by delivering up the quadruped or the slave.
only bound to the amount of the value of the privateer and her appurtenances?
A question of this kind was formerly brought before the supreme court of Holland. Five Dutch privateers had unlawfully taken a Venetian ship. The owners of the captured vessel at first instituted a suit against the captains of the privateers, and obtained a judgment, by which they were condemned to restore the vessel only, without damages. But as the sentence was not complied with, they then brought an action against the five owners, contending, that they should jointly and severally be condemned not only to restore the vessel, but also to pay damages. The court, by their decree of the 31st of July 1603, condemned the owners jointly and severally, to restore the vessel and her cargo, and if that could not be done, then to pay their appraised value; but the sentence contained an express clause, that execution of it should be made only on the five ships which had made the capture, and that the owners should not be bound beyond their proceeds.
On the strength of this precedent, respectable lawyers have given their opinion to the same effect,* but I cannot concur with them, because I think, that when the owners of a privateer ship put a captain on board of her to make captures, they are bound for the whole of the damage that he may occasion. The master who captures, in consequence of an authority that he has received, is appointed for that particular purpose, and he who appointed him, is by that alone, responsible for every thing, good or bad, that he may do in the execution of his trust. Thus we give the actio institoriat against the proprietor of an inn, who has appointed an innkeeper; if the innkeeper makes any contract, we do not distinguish in what manner or with what intent he did it; and thus also we give the actio exercitoriaf against the owner of a vessel for the act of the
Consil. Holland. vol. 3. Consil 221. † See the Digest, 1. 14. tit. 3. De institoriâ actione.
Dig. 1. 14. tit. 1. De exercitoriá actione. This title will be found translated into English, in the American Law Journal, vol. ii. p. 462. T.