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![handle is hein.slavery/ssactsengr0456 and id is 1 raw text is: THE BETSEY
from one hour and a half to two hours and a half, the distance between the Socie-
dade Feliz and the Forester was only from eight to ten miles. That the
Forester saw the Sociedade Feliz is beyond all dispute ; and although,
from circumstances stated in the evidence, there might have been greater difficulty
in the Sociedade Feliz seeing the Forester at the time of the capture, there
is, I conceive, sufficient reason to conclude that the Forester might have been
seen ; and I am disposed to hold that this would be sufficient where sight, at an
earlier period, is established.
It is not, I apprehend, absolutely necessary, under the circumstances here stated,
that sight, at the actual time of the capture, should be proved. I am inclined to
think that such proof is unnecessary where detention in the service of the actual
captor is completely established, as it is in the present instance.
It has, however, been contended in argument, as [165] another ground of objec-
tion to the Forester's claim, that the Forester from her disabled condition,
and the sickly state of her crew, could not have prosecuted the chase, even if her
commander had desired it. Looking to the evidence before me, I do not think that
this averment is borne out in proof. On the contrary, in my judgment, the result
of the evidence tends to shew that that vessel was lying at single anchor at the time ;
and although some of her crew might be sick, she had on board a sufficient number
of healthy persons to have enabled her to make sail, and to have effected this capture,
if it had been necessary for her to proceed in chase, and if she had not been kept
back by the orders of Lord Francis Russell, to which I have adverted. I must now
briefly refer to the last remaining point which has been urged by the counsel for the
Harlequin, namely, the asserted declaration of Lieutenant Bond, that the vessel
descried was not a slave ship, and not a prize. This declaration, it has been con-
tended, clearly shews that the commander of the Forester had no intention to
chase, and that the absence of such intention on his part is fatal to the claim of joint
capture which has been set up. Now, assuming the declaration to have been made
as stated, I am of opinion that such a declaration, made under the circumstances
of the case, after the order had been received to pick up the boats, could not produce
the effect which is ascribed to it. The expression of such an opinion does not
necessarily shew an absence of an animus capiendi ; and it certainly adds nothing
to the admitted fact that the Forester did not join in the chase, the effect of
which fact I have already taken into my consideration.
[166] In the investigation of the transaction under consideration, I have not
attempted to reconcile the discrepance in the evidence upon this part of the trans-
action, and upon other matters. It is unnecessary that I should do so ; and I
gladly forbear from taking upon myself a task which I should despair to accomplish
satisfactorily. My judgment will be founded upon the facts which I consider to
be established by the evidence on both sides. Looking at these facts, I hold that
the Forester is entitled to share. I am most desirous that it should be distinctly
understood that my decision is founded upon the union and combination of all the
circumstances of the case, and not upon the one or the other of them singly.
I am also further desirous that it should be understood that; in forming my
decision, I have not ventured to pronounce any opinion upon one point which has
been raised in the argument, viz., that the Forester was bound not to chase
without an order from the senior officer on the station ; and that having remained
at anchor, as it were, by compulsion, in consequence of no such order having been
given, she was upon this account entitled to share. This is an important point,
which I am not called upon to determine upon the present occasion, and I therefore
leave it untouched, as a point which may be fully open to discussion upon any future
occasion.
For the reasons- which I have stated, I am of opinion that the Forester is
entitled to share in the proceeds of this capture ; and as the question which has
been raised was a question requiring a very deliberate consideration, I think the
expenses on both sides should be paid out of the proceeds.
[167] THE BETSEY -(Thompson). July 20, 1843.-Agreement made, by
the master of a steam tug, to tow a damaged vessel from the Queen's
Channel up to London for £50.-Attempt made by the master and crew of the
steam tug to convert the service into a salvage service, upon the plea that the
2 W. ROB. 165.](ViewImageLocal?handle=hein.slavery/ssactsengr0456&div=1&collection=&method=preview&ext=.png&size=3)