Where some of the vessels are allies the division is usually regulated by treaty. The provisions of Great Britain's treaties with France of 1854 and 1860 have already been noted.[6] In these cases division was to be made between the vessels of the allies according to the number of men on board irrespective of rank. Of course, for the share decreed to her own vessels, England employed her own rules of division. Where there is no treaty or some of the vessels are privateers the division among the vessels is decreed by the court, an effort being made to apportion it according to the relative strength of the vessels. To determine this the number of men, guns or both on the various vessels are considered. Thus Mansfield said, "The law of nations does not determine but if one might guess at it, it must be in the ratio of the strength of the respective captors, to know which the number of guns, weight of metal, number of men and strength of each fleet must be stated."[7] The court must decide the first question proposed, namely what vessels were either actual or joint captors and as such entitled to share. In defining these terms the court has said: "All prize belongs absolutely to the crown which for the last 150 years has been in the habit of granting it to the takers who are of two classes, actual captors and joint or constructive captors. Joint captors are those who have assisted or are taken to have assisted the actual captors by conveying encouragement to them or intimidation to the enemy."[8] It is in general considered that this encouragement or intimidation is given by all vessels in sight but this is not always true. Thus: "For it is perfectly clear that being in sight of all cases is not sufficient. What is the real and true criteria?---- There must be some actual, constructive endeavor as well as a general intention."[9] But in the case of king's ships all in sight generally share. "They are under a constant obligation to attack the enemy whenever seen. A neglect of duty is not to be presumed and therefore from the mere circumstance of being in sight a presumption is sufficiently raised that they are there animo capiendi."[10] This rule holds irrespective of the character of the vessel making the actual capture. With privateers the case is different: "For they are not under obligation to fight. It must be shown in their case that they were constructively assisting. The being in sight is not sufficient with respect to them to raise a presumption of cooperation in capture.--There must be the animus capiendi demonstrated by some overt act, by some variation of conduct which would not have taken place but with reference to that particular object and if the intention of acting against the enemy had not been effectually entertained."[11] As privateering has been abolished this rule is now purely theoretical.