(Copy)
Sir,

Sometime in the beginning of the last Month the Owner of an Armed Sloop laid a State of a Case before me for my opinion, and as the duty of my profession, and the Solemn Oaths I have taken in Conformity to the Acts of this Island, oblige me to give my Clients my Opinion according to the best of my knowledge and learning in the Laws of Great Britain, and the Laws of this Island, I therefore answered the Case, which was laid before me, and I now presume to lay that Case and Opinion before you, and I am extremely Concerned to be informed that the Sentiments which I entertain with regard to Captures and Re-Captures made by Armed Non Commissioned Vessels are so very dissatisfactory to, and So much disapprov'd of by you, but I hope when you Consider the Reasons, which I now give in Support of that Opinion, they will remove that displeasure and dissatisfaction. —

In Answer to the first Query made in the Case, I have given it as my Opinion, that an Armed Non Commissioned Vessel has a right to take the Ships and Vessels, which are found trading contrary to the 16th of his present Majesty, Intituled, an Act to prohibit all Trade and intercourse with the Colonies of New Hampshire &ca, for that all His Majestys Subjects have a right to Annoy his Enemies, and to take from them their property, and by the Laws of Nations such Property became theirs, who took it, but the Law of Nations is now altered, and the property of the Enemy so taken becomes expressly forfeited to his Majesty by the first Clause of the said Act, and whatever Shares the proprietors of Non Commissioned Vessels may be intitled unto in Captures made by such Vessels proceeds entirely from his Majesty's bounty, as such Captures must be Considered as Droits of the Admiralty; but if there was not any such Act the property of the Enemy would belong to the King.

That it appears from Grotius book 3d Chap. 6th sec 2d That by the Law of Nations not only he that makes War for a just Cause, but every Man in a Solemn War acquires the property of what he takes from the Enemy without Rule or Measure, but the Law of Nations in this respect is intirely altered, and all Captures made from the Enemy belong to the Sovereign, or to the State that employed the Captors, and if such Captors have any share of the Prize the same proceeds from the Condescension, or Grant of the Sovereign, which may be enlarged or abridged as Occasion Serves. Molloy de Jure Maritimo & Navali Chap. 13th Sec. 10th And the Parliament of Great Britain have, for the Encouragement of the Officers and Seamen of his Majesty's Ships of War given them by the said Act of Parliament Sole property of all Prizes Seized, and taken by them, to be divided in such proportion and after such manner, as his Majesty shall think fit to order and direct by his Proclamation or Proclamations but neither the Act of Parliament nor his Majesty's Prodamation has taken away his Droits of the Admiralty, And I am of Opinion with very very great deference and Submission to you, that all Vessels and their Ladings taken trading Contrary to the said Act of Parliament by Non Commissioned Vessels are Droits of the Admiralty, and this appears Clearly by the first and third Instruction[s] among many others to be observed by the Receiver of the Rights and Perquisites of the Admiralty, for by the first of those Instructions it is expressly laid down, that all Ships and Vessels and Goods of all Enemies met at Sea, and Seized by any Vessel Non Commissioned are Droits Appertaining to the Office of Lord High Admiral, and by the other of those Instructions it also Manifestly appears, that any Prize taken by a Non Commissioned Vessel becomes entire Perquisites of the Admiralty. — And by one of his Majesty's Instructions to his Commanders in Chief of these Islands, he is expressly directed to be aiding and Assisting to the Receiver of those rights and Perquisites, in recovering the same, in which are included the Effects of Pirates; And his Majesty by that Instruction expressly orders his Attorney General also to be aiding and Assisting in Recovering the Same. —

I have also in my Answer to the first Query made in the said Case, given it as my Opinion, that if any Vessels and their Cargos are retaken from the Rebellious Subjects, by any Armed Non Commissioned Vessel, that the Recaptors of such Vessels and their Cargos so retaken, are intitled to one Eighth part of the true Value thereof, expressly by virtue of the said Proviso in the said Act, And I do with the greatest Submission to you, think, that this is most evident by the said Proviso in the said Act, which enables not only his Majesty's Ships of War to make Recaptures, but all other Ships, Vessels or boats under his Majestys Protection and Obedience

In Answer to the second Query made in the said Case, I have given it as my opinion, that if a Non Commissioned Vessel, takes any Ship or Vessel fiitted out by the Rebellious Subjects as a Privateer, that such Ship or Vessel will be Considered as the property of Pirates, and will be forfeited to his Majesty, and such forefeiture must be Considered as Perquisites of the Admiralty, and that they are so, appears Clearly from the Copy of one of the Instructions from his Majesty to his said Commander in Chief, and also by the Ninth Instruction to the Casual Receiver, Copies of which Instructions, I now trouble you with. — That his Majesty's Rebellious Subjects, who have fitted out Privateers under Commissions from the Congress are Pirates, is plain from the Act of 11th & 12th Wm 3d Chap. 7th, Intituled An Act for the more effectual Suppression of Piracy, by the 8th Clause whereof, if any of his Majesty's Natural born Subjects or Denizens shall Commit any Piracy Robbery &ca against other his Majesty's Subjects upon the Sea under pretence of Authority from any person whatsoever, such Offenders shall be deemed pirates, Fellons & Robbers and being Convicted thereof shall suffer death and loss of Lands Goods &ca

In Answer to the third Query I have given it as my opinion, that if a Non Commissioned Armed Vessel should take any Ships or Vessels and their Cargos trading Contrary to the Act of Parliament, that such Capture immediately vests the property of the Prize in his Majesty as Droits of the Admiralty, and that a Subsequent Capture thereof by any of his Majesty's Ships of War, although made upon the High Seas, before such Ships or Vessels and their Cargos were brought by such Non Commissioned Vessel into any Port Creek or Road of Great Britain, Ireland, or the Colonies, or within Gun Shot of any Castle or Fort belonging to his Majesty, will not divest his Majesty of such right, but altho' I have lived in this Island ever since the Year 1742, I never knew an Instance, where this Question was ever litigated between his Majesty and his Ships of War. —

I do not look upon the prohibitory Act in the light of a solemn declaration of War between two Nations, but that the same is Calculated for the purposes mentioned in the preamble of the Act, Vizt For the more Speedily and effectually Suppressing the wicked, and daring designs of his Majesty's Rebellious Subjects in such Act mentioned, and preventing any Aid Supply or Assistance being sent to the Colonies mentioned in the said Act during the Continuance of the Rebellious and treasonable Commotions there, And I shoud apprehend, that any of his Majesty's Loyal Subjects might with Impunity contribute to the Carrying the Intention of the Act into Execution, by taking the Ships and Vessels of such Rebellious Subjects trading Contrary thereto, and bringing them into any of his Majesty's Colonies in America, in order to be proceeded against in his Courts of Vice Admiralty there as perquisites of the Admiralty, and Should his Majesty think that such Captures are illegal, he will withhold the bounty he usually grants to the Captors of the Rights and perquisites of the Admiralty, for their expence and trouble in taking the Same.

As his Majesty is in titled to all Vessels and their Cargos which are taken trading Contrary to the Act, there can be no danger, that such Captures are Collusive ones, so as to open the trade to and from the Rebellious Colonies, for it can never be Worth the While of the Inhabitants of those Colonies, or of other persons trading to and from the Same to throw themselves in the Way of being taken by Armed Vessels, for they can never expect any Emoluments from such Collusion, nor can the Captors be any way benefited by such Captures, further than from his Majesty's bounty. — I beg pardon for having trespassed thus long upon your time and patience, and humbly Submit the Reasons, which I have given in support of my opinion to your Consideration, and I shall think myself happy in Receiving Instructions from England how to Conduct myself for the future upon Occasions of the like Nature with the present, should you Condescend to represent this Matter to their Lordships of the Admiralty. And I am extremely Unhappy, that the duty of my Province, as his Majesty's Attorney General, and that of being the Deputy of The Honorable, and Reverend Robert Cholmondely, Surveyor & Auditor General of all his Majesty's Revenues arising in America, should oblige me to interfere with regard to the Captures of Prizes made under the Prohibitory Act by Non Commissioned Vessels. I have the honor to be with the greatest respect, Sir &c.