"of any fortress upon the land, or any arms, ammunition, stores of war, goods, merchandize, and treasure, belonging to the state, or to any public trading company, of the enemies of the crown of Great Britain, upon the land."
Thus the interests of the Queen's cruizers are expressly limited with respect to the property in which the captors can acquire any interest of their own, the state still reserving to itself all private property, in order that no temptation may be held out for unauthorized expeditions against the subjects of the enemy on land. With regard to private vessels of war, the Lords of the Admiralty are empowered by the 9th Section, to issue Letters of Marque, to the Commanders of any such ships or vessels,
"for the attacking and taking any place or fortress upon the land, or any ship or vessel, arms, ammunition, stores of war, goods, or merchandize, belonging or possessed by any of Her Majesty's enemies in any sea, creek, river, or haven."
It was the purpose of the persons who brought in this bill, that Privateers should not be allowed to make depredations upon the coasts of the enemy for the purpose of plundering individuals, and for that reason they were restricted to fortified places and fortresses, and to property water-borne.[91]
As Privateers sometimes sail in company with Queen's vessels, and also in small squadrons, for the purpose of mutual assistance, the rights of the privateers vary. When a Privateer is sailing under the convoy of a Queen's ship, she takes no share in any prize taken by the ship, or even by herself, unless she has received orders from the convoying royal ship to give chase, or has acted hostilely against the enemy, actually aiding and assisting in the capture.[92]
When Privateers have sailed in company, it has often happened that not every vessel has been actually engaged in the capture of the prize, though they may have been rendering valuable assistance in a variety of forms, such as watching in the offing, guarding an open outlet of escape to the intended prize. In the disputes arising from these joint captures, Sir William Scott was the first to establish a settled intelligible system, on principles that might become in future easily applicable to the various cases that might arise.
[Sidenote: Constructive Captors.]
He says
"the Act of Parliament (meaning the Prize Act), and the proclamation, give the benefit of prize to the takers, by which term, are naturally to be understood those who actually take possession, or those affording an actual contribution of endeavour to that event; either of these persons are naturally included under the name of takers, but the Courts of Law have gone further, and have extended the term 'takers' to those who, not having contributed actual service, are supposed to have rendered a constructive assistance, either by conveying encouragement to the captor, or intimidation to the enemy. * * * It has been contended that where ships are associated in a common enterprize, that circumstance is sufficient to entitle them to share equally and alike in the prizes that are made; but many cases might be stated when ships so associated would not share. I must ever hold that the principle of mere common enterprise is not sufficient—it is not sufficiently specific—it must be more limited. What is the real and true criterion? She being in sight, or seeing the enemy's fleet accidentally, a day or two before, will not be sufficient; it must be at the commencement of the engagement, either in the act of chasing, or in preparations for chase, or afterwards during its continuance. If a ship was detached in sight of the enemy, and under preparation for chase, I should have no hesitation in saying that she ought to share; but if she was sent away after the enemy had been descried, but before any preparations for chase, or any hostile movements had taken place, I think it would be otherwise; there must be some actual contribution of endeavour as well as a general intention."[93]
[Sidenote: Efforts to suppress Privateering.]