The Diomede. 1 Acton. Adams, for the claimants. The nature of the papers produced in this cause will naturally affect the interests of Mr. Juhel in some degree, though by no means to the extent contended for by the captors, unless we are able to explain them to the satisfaction of the court. This the appellants hope will be done most satisfactorily, should there be permission given to introduce further proof. This indulgence they are entitled to expect, from the fair and [ 69] explicit nature of the ship's papers themselves, and the strong and absolute averments of the parties. The power of attorney mentioned will be proved to have reference solely to debts incurred before the dissolution of partnership; and Mr. Longuemare will also be proved to be this moment residing in London, transacting business on his sole account. JUDGMENT. The court ordered further proof to be introduced. DIOMEDE.1 July 8, 1809. Question as to the general principle of distribution of the flag-eighth in captures asserted to be made conjointly by different flag-officers, either as coöperating personally, constructively, by the ships under their command, or finally, by the capture being made within the limits of their station. In this case two appeals were prosecuted from the decision of the High Court of Admiralty of Great Britain, which must be considered of uncommon interest, as well from the number of illustrious naval commanders, whose claims were most elaborately and patiently investigated, as from the important nature of the principles of law adopted in the distribution of prize. The Diomede and Imperial formed part of a squadron of French ships of war, which was defeated and destroyed by a squadron of his Majesty's ships, under the command of Vice-Admiral Sir John Thomas Duckworth, Knight of the Bath, off St. Domingo, in the memorable engagement of the 6th of February, 1806. Proceedings commencing 1 [For cases as to the flag share, see The Doloras, 2 Dod. 413, note.] The Diomede. 1 Acton. in the High Court of Admiralty, of England, touching the adjudication of the ship Diomede, and a question arising [70] as to the distribution of the flag-eighth of the said prizes, the judge (Sir. W. Scott) decided in favor of the following claimants: Vice-Admiral Lord Collingwood, as commander-in-chief in the Mediterranean, (from which station Sir John Thomas Duckworth, in company with Rear-Admiral Louis, had set sail in quest of the enemy, with a part of the fleet under the command of his lordship,) ViceAdmiral Knight, and Rear-Admiral Lord Northesk, the present respondents; and that they, together with Vice-Admiral Sir John T. Duckworth, Rear-Admiral Louis, and rear-admiral the honorable Sir Alexander Forrester Cochrane, were entitled to share in the flag-eighth of the prize; Admirals Knight, Lord Northesk, Duckworth, and Louis, as junior flag-officers under Admiral Lord Collingwood, the commander-in-chief on the Mediterranean station, from whence the armament set sail; and Sir Alexander F. Cochrane, as junior flag-officer on a West India station, taken under the command of Sir J. Duckworth, as his superior officer, and also assisting in the capture. But pronounced against the claim of Vice-Admiral Dacres, within the limits of whose station the capture had been made, and in which capture Admiral Sir J. T. Duckworth had availed himself of the assistance of The Magicienne, one of the ships of war then under the command of the said Admiral Dacres, on the Jamaica station. Leach, for the respondents, Lords Collingwood, Northesk, and Admiral Knight-There has never been a case submitted to your lordships' decision which equally involved so many considerations of the utmost weight and the most extreme delicacy, both with * respect to the regulation of the respective interests, and the [* 71 ] due subordination of the different officers of his Majesty's navy, as that which I have now the honor to open on the part of the respondents. As the arguments to be submitted on this part of the case are partly inferential from facts generally admitted, partly founded on the positive and express proclamation of his Majesty,1 regulating the distribution of prize during the present hostilities, and partly deducible from the custom and usage of our navy for ages, it will first be necessary to take a view of the facts and leading features of the case. On the death of Lord Nelson the command of the Mediterranean fleet fell necessarily upon Lord Collingwood, having, amongst others, Vice-Admiral Knight and Lord Northesk, as junior flag-officers 1 See Appendix. The Diomede. 1 Acton. under him. On the 19th November, 1805, he issued an order to Sir John Thomas Duckworth, taking him under his command, and another order enjoining him to take under his orders certain ships of the line and other smaller vessels, for the purpose of maintaining the blockade of the ports of Cadiz and San Lucar, in which service he was to regulate himself by the tenor of the instructions he had received in a letter of a former date. From the time of issuing these orders Sir John T. Duckworth continued under his lordship's commands, receiving and obeying his instructions from time to time. Rear-Admiral Louis, whom he succeeded on the station, repaired to the commander-in-chief, in pursuance of orders to that effect; but previous to joining his lordship, he received important intelligence respecting a French force which had appeared in those seas, in con sequence of which he conceived it his duty to acquaint Sir [* 72 ] *John Duckworth with this intelligence, and returned for that purpose. On the 29th of November Sir John Duckworth wrote to his lordship the following letter:-"Rear-Admiral Louis, who separated from me with The Spencer on the night of the 27th, in execution of your orders, has just joined me again, bringing in The Agamemnon, (which I had placed with The Naiad in shore off Cadiz,) in consequence of the accompanying intelligence he had received from her captain, Sir Edward Berry; and as there is nothing in the port of Cadiz in any state of readiness for sea, except three or four frigates, I shall, in the anxious hope of anticipating your wishes, proceed, as soon as I can get hold of one of the sloops, or The Naiad, to apprise you of my intentions, with a press of sail off the Salvages, and from thence, if not fortunate enough to fall in with the enemy, to return by Vigo to my present situation; and though I could have wished to have had two or three frigates, I will endeavor to do without them." He also, on the 30th November, wrote a letter to William Marsden, Esq., secretary of the admiralty, from which the following is an extract:- "As it is possible a conveyance may be met with from here to England, before Vice-Admiral Collingwood may be apprised of my proceedings, I am to desire you will inform the Lords Commissioners of the Admiralty, that in consequence of orders from that commander-in-chief, received the 26th instant, I detached RearAdmiral Louis, in The Canopus, with The Spencer on the 27th, to join him, but they returned to me yesterday afternoon with the accompanying intelligence." Lord Collingwood having also received information of the French squadron mentioned in such intel[* 73] ligence * on the 1st of December, 1805, issued the following order to Sir John Thomas Duckworth:-"Whereas I have received information that a squadron of enemy's ships of war are The Diomede. 1 Acton. cruising between the islands of Madeira and Teneriffe, for the purpose of intercepting the convoys and trade going abroad, and that on the 20th ultimo, they fell in with his Majesty's sloop The Lark, and are supposed to have taken some of her convoy, a copy of which intelligence I inclose; you are hereby required and directed to take the ships named herein under your orders, and proceed without loss of time in quest of the enemy's said squadron, off the Salvages, and, on falling in with them, use your best endeavors to take or destroy them. As I think it probable that the island of Teneriffe may be the rendezvous of the above-mentioned squadron, in order to obtain their supplies of water, &c., you will proceed with the ships under your orders, to the southward of the Salvages, between them and Teneriffe, in order to cut off the French squadron from this their supposed rendezvous for obtaining supplies. Having arrived there, and not meeting the enemy's squadron, you are to obtain the best information you may be able respecting them, by vessels boarded or otherwise, and pursue them as long as there is a fair probability of coming up with them; but in case of your not receiving such intelligence as may lead you to the enemy, you are to return with all possible expedition to the rendezvous off Cadiz, where, making up the number of six ships of the line, two frigates, and two sloops, you are to continue the blockade of that port, agreeably to my former orders of date the 28th ultimo, sending Rear-Admiral Louis with the remainder to Gibraltar Bay, to complete their water and provisions, [74] which being done, they are to join me on the rendezvous they will receive from Rear-Admiral Knight. You are to transmit me a journal of your proceedings, by the same conveyance, or sooner if opportunity offers." This order was sent by his Majesty's ship Tigre, but that ship not meeting with Sir John Thomas Duckworth at the rendezvous appointed, the same was not received by him. On the 14th January, 1806, Sir John Thomas Duckworth, being then at Barbadoes, wrote and sent a letter to Lord Collingwood, from which the following is an extract:-"In consequence of a proposal made to release some prisoners, I left The Acasta, which had joined me that morning, to receive them; but alas, this great civility of the governor produced only two old men, one a Swede. Thus I was disappointed in my expectations; but I derive great pleasure from your lordship's kind letter, and what Captain Dunn acquainted me, as it convinced me the step I had taken, in going in pursuit of the enemy, had met with your approbation; and as it was evident that they had stood to the N. E., I made sail for the Salvages, for the purpose of joining The Neptune, Tigre, and frigates your lordship mentioned having detached; but the wind being now unfortunately The Diomede. 1 Acton. very fresh from the northward, I did not get past for five days, in which time I saw none of the ships alluded to, and, consequently, made use of all my endeavors to return by Cape Finisterre." On the 3d of February following, Sir John Thomas Duckworth, being off the island of St. Thomas, again sent a letter to Lord Collingwood, in which he states, that "finding by the accounts from thence, [* 75 ] as also the various parts of the command, that the * account of the force alluded to, brought by The Pheasant, had neither been seen nor heard of, I determined on leaving St. Christopher's this day, to return to my station under your lordship, when, on the first instant, I received the interesting intelligence herewith transmitted, and from the character of the party from whom it came, Rear-Admiral Cochran, gave it full credit for authenticity; and in consequence, I directly weighed with the squadron that I left Cadiz with, except The Powerful, which, I already mentioned, I had detached for India, also increased by The Northumberland and Atlas; and though I was by no means disposed to remove Rear-Admiral Cochrane from his command, the delay that must have been produced before a frigate could be sent for to take him on board, and his strong objections to the removal, induced me to take him with me; yet, from the particularity of the intelligence, with the names of the ships, &c., great doubts are raised in my mind at the French being so communicative, though, as time, and other parts of it, correspond with information before received, I feel nothing could justify my leaving the country in that state of doubt, especially as the Lords Commissioners of the Admiralty are aware of your lordship's reduction of force by my being in these seas." On the 6th of February, Sir John Thomas Duckworth fell in with the squadron of French ships of which he had gone in pursuit, as stated in the letters and orders before recited, off the island of St. Domingo, and, after a severe action, captured and destroyed five line of battle ships, of which the ships mentioned in the proceedings were two. On the 7th of February, the day after the [76] action, Sir John Thomas Duckworth sent a letter to Wil liam Marsden, Esq., giving an account thereof, beginning thus: "As I feel it highly momentous for his Majesty's service that the Lords Commissioners of the Admiralty should have the earliest information of the squadron under my command, and as I have no other vessel than The King's Fisher that I feel justified in despatching, I hope neither their lordship's, nor Vice-Admiral Lord Collingwood, will deem me defective in my duty towards his lordship, by addressing you on the happy event of yesterday." And on the same day he also sent a letter to Lord Collingwood, as his commander-inchief, giving him likewise an account of the action; and also, on the |