By Orders from the Lords Commissioners of the Admiralty Dated the 2d September 1775, Their Lordships did require and direct Admiral Gayton, to give Orders to the respective Captains and Commanders of His Majesty's Ships and Vessels under his Command, to Seize all Ships and Vessels belonging to any of the Colonies of New Hampshire, Massachusets Bay, Rhode Island, Connecticut, New York, New Jersey, Pensylvania The three

lower Counties on Delaware, Maryland Virginia, North Carolina, South Carolina, and Georgia; or owned by the Inhabitants thereof; and to cause all Ships and Vessels, which should be Seized in the Cases before mentioned, to be carryed to some British Port, not within the said Associated Colonies; and there detained till further Orders, or be proceeded against according to Law, as the Nature of the Case should require. ,

Admiral Gayton, in pursuance of those Orders, sent Captain Alan Gardner in the Maidstone, and Captain Stair Douglass in the Squirrell, to Cruize off Cape Nicolas Mole, and put them in Execution

At the Time of Issuing the above mentioned Orders, Two Acts made in the Preceeding Sessions, commonly called the Restraining Acts, were in force, by which said Acts, it was generally intended to prevent any Goods Wares or Merchandizes, being carryed from any of the Provinces or Colonys of Massachusets Bay, New Hampshire, Connecticut, Rhode Island, or Providence Plantation, New Jersey, Pensylvania the three lower Counties on Delaware Maryland Virginia and South Carolina to any other Land, Island, Territory, Dominion, Port or Place whatsoever, except to the Kingdoms of Great Britain or Ireland, or to some of the British Islands in the West Indies, to be laid on Shore there; and also to Oblige the Masters of all Vessels who shall lade or take on board any Goods, at any of the said Colonies, to give Bond and take out a Certificate thereof, in the Manner in the said Acts particularly mentioned, under the Penaltys in the said Acts men!ioned and contained ー See the said Two Acts

On the 13th of December last, Captain Gardner Seized the Sloop Dove; whereof one Nicholas Bull was Master, as She came out of the Port of Cape Nicolas Mole, with a Cargoe of Sugar and Molasses, which She had taken in there. The Dove belongs to the Inhabitants of Rhode Island; had Cleared out from Rhode Island for Jamaica, on the 5th September 1775, with a Cargoe the Property of the Inhabitants of Rhode Island; The Master had given Bond and Obtained a Certificate pursuant to the above mentioned Acts, and had also got all the ー other proper Clearances for Jamaica; but instead of coming hither went into Cape Nicolas Mole, and Sold her Cargo there; where She took in the said Cargoe of Sugar and Molasses, and was on her return to one of the before mentioned Colonys, when taken by the Maidstone.

On the 20th December last Captn Gardner seized three other Vessells as they came out of Cape Nicolas Mole ー Vizt

The Sloop Susannah, of which Benjamin Appleton was Master; She belongs to an Inhabitant of North Carolina, and cleared out from Beaufort in North Carolina on the 6th November last for Jamaica, with a Cargoe on Board, the property of the Inhabitants of North Carolina: As she did not belong to any of the Colonies mentioned in the restraining Acts, She only gave the usual Bonds, and got the proper Clearances for Jamaica; but went into the Mole, and there Sold her Cargoe, and took Molasses on Board; and was on her return to North Carolina, when taken by the Maidstone.

The Sloop Penelope, John Werden Master, belongs to the Inhabitants of North Carolina, and cleared out from the Port of Roanoke in North Carolina, the 9th Day of September last for Antigua with a Cargoe on Board, the property of the Inhabitants of North Carolina; She Sailed with the proper Clearances for Antigua, but went into Cape Nicolas Mole, where the Master Sold the Cargoe which he had cleared out for Antigua, and took on Board Molasses ー He was on his return to North Carolina when taken by the Maidstone.

The Schooner Happy, Eliphalet Smith Master, belongs to the Inhabitants of Philadelphia; cleared out from the Port of Bath Town in North Carolina, on the 8th Day of September last for Dominica, with a Cargoe belonging to the Inhabitants of North Carolina; and having got the proper Clearances Sailed for Cape Nicolas Mole, instead of Dominica, and at the Mole Sold her Cargoe, and took On Board Sugar and Molasses, with which, She was on her Voyage from the Mole to Virginia, when She was taken by the Maidstone. ー N.B. The Sloop had not any Register when taken

On the 23d of December last Captn Douglass seized-

The Sloop Cornelia, Robert Sands Master; She belongs to the Inhabitants of New York, and cleared out from the Port of New York on the 24th Day of October last for Antigua; with a Cargoe belonging to the Inhabitants of New York; She Sailed with the proper Clearances for Antigua, but went immediately to Cape Nicolas Mole, where the Master Sold her Cargoe, and loaded her with Molasses, And was on his return from thence to New York, when she was taken by the Squirrell.

On the 28th of December last, Captain Douglass also seized

The Sloop Afjee and Hannah, Benjamin Bell Master, belonging to the Inhabitants of New York; She was cleared out from the Port of Beaufort in North Carolina, on the Ninth Day of September last, for Barbadoes, with a Cargoe on Board belonging to the Inhabitants of New York and North Carolina; and having got the proper Clearances, Sailed for Saint Eustatius, where She Sold her Cargoe, and from thence went to Cape Nicolas Mole, where the Master bought a Cargoe of Salt, and was on Voyage from thence to New York, when She was taken by the Squirrell.

On the 20th of January 1776, Captain Douglass in the Squirrell Seized The Schooner Thames, alias Sally, alias Syrene, Joseph Faribault Master; This Vessell belongs to Philadelphia, and the Master is a French Man, and when She cleared out at Philadelphia, he Obliged the Mate to Clear her out as the Master, for Jamaica, in Ballast; She then immediately Sailed for Cape Nicholas Mole, where the Mate Entered her as Master; from thence they proceeded to Leogan and took in a lading of Sugar and Molasses, and then went to the Port of Petit Gieaves [Goaves], where Faribault obtained a Set of French Papers for her as a French Vessell; which he might occasionally Shew to both French and English Ships of War, to protect him from Seizure, as Occasion required. ー When he sailed from thence, his Destination was for some Port in New England, and when the Squirrell came in Sight, Faribault hid the English Register, Clearances &c, in some place so private, that the Captors have not as Yet been able to find them.

On the 28th January, Captain Gardner, in the Maidstone, Seized The Schooner DoljJhin, Edward Manning Master, belonging to the Inhabitants of the Colony of Virginia, who had cleared out from Hampton in Virginia, on or about the 9th of September last for Grenada, with a Cargoe of Lumber, Bread and Flour on Board, belonging to the Inhabitants of Virginia. ー The Master, having obtained from the Custom House the proper Clearance and Certificate Sailed to Grenada and delivered her Cargoe, and there obtained the proper Certificates for the Cancelling his Bonds at Hampton; and having cleared out from Granada in Ballast, for North Carolina Sailed from thence in the beginning of December last; But instead of going to North Carolina, proceeded immediately to Cape Nicolas Mole; where the Master took on Board a Cargoe of Sugar, Molasses and Coffee, and was on his Voyage from thence to North Carolina when taken by the Maidstone. ー N B. This Schooner had also a Let-pass from the Governor of the Granadoes, as a Safe conduct from thence to North Carolina; Dated the 7th of December last.

On the 2d of February 1776, Captain Gardner also Seized The Schooner Nancy, William Clark Master, belonging to the Inhabitants of the Colony of Rhode Island; who had cleared out from the Island of Nantucket in the Port of Boston, on the 9th Day of December last with Ballast and Stores for Jamaica. She proceeded to Cape Nicolas Mole, where the Master purcha[se]d and took on Board a Cargoe of Molasses and Rum, and was returning to Nantucket with that Cargoe, when taken by the Maidstone-NB No papers were found but a Short Clearance from Nantucket and her Register.

These Nine Vessells were sent under the Care of Petit Offi[cers] to Port Royal Harbour, where they came under the Command of the Admiral.

Afterwards, Captain's Gardner and Douglass returned from their Cruize, and soon after their Arrival, received the Act for Prohibiting all Trade with the American Provinces, and for repealing the restraining Acts. They, upon reading the Act, and considering, that the first taking of those Vessells had been in Obedience to the Admiralty Orders only, and not by Virtue of any Law, and conceiving that those Vessells were liable to forfeiture as American property, under the last mentioned Act, did on the 16th of February Instant, seize all the said Vessells, as they lay in the Harbour of Port Royal.

The Sloop Dove was the only one of these Vessells, against which, any proceedings had been commenced in the Court of Admiralty; being the only one which was deemed Subject to any forfeiture, under the Restraining Acts; which Acts being now repealed those proceedings are Void.

In that part of the Prohibitory Act which repeals the restraining Acts ー there is the following recital-"And Whereas the Prohibitions and restraints imposed by the said Acts will be rendered Unnecessary by the Provisions of this Act." ー whereby it seems fairly implyed, 'that it is not the intention of the Act to make Void all Forfeitures incurred under the former Acts; but on the Contrary, thereby to give a more effectual Method of recovery, by making the Vessells with their Cargoes &c prizes, as if the Ships of open Enemys. ー See Copy of the Law

The Captors having some Doubts, how to proceed against the several Vessells they have so taken and Seized, as aforesaid. ー Your Opinion is requested to the following Queres

1st Quere ー Are all the above mentioned Nine Captures liable to Condemnation, by Virtue of the late Prohibitory Act, and the

Seizure made in Consequence thereof? If all the said Vessells are not liable to such Condemnation, are any and which of them in that Predicament?

In giving our opinion on this Case, we shall reject the Consideration of State policy and State-Orders further than by observing that they can have no weight in a Court of Justice; unless it shall Appear they are warranted by Law. We know not of any Law or Statute authorising any of these captures previous to the restraining Acts and the present Prohibitory Act. We must confine our Attention to these Acts, and to such rules of Common Law as regulate their Construction. It does not Appear to us that any of the Vessells taken before the 1st of January 1776 were condemnable under The restraining Acts; for in respect to the Sloop Dove, she was only libel[ed] cautionarily and for the better securing the Penalty incurred by the Absentee proprietor thereof. Were it otherwise, that Act is now repealed and the Jurisdiction it created is repealed with it, so that no further proceedings can be thereupon had. The continuance of the restraining Acts is said to be rendered unnecessary, by the passing of and provisions contained in the Prohibitory-Act; We are at a loss to find any such provisions, without giving the Act a retrospection beyond the express Term of its commencement. It is a penal Act and we are restrain[ed] by every rule of construction from raising provisions out of intent unaccompanied with enacting Clauses, to give such intents Effect; Nay, the Clause which enables Vessels belonging to Inhabitants of the Prohibited Colonies to Sail from this Island before March, contradicts such supposed intents. As little we apprehend is to be inferred from the Indemnity-clause, which makes the Acts of the Captors legal. Instead of giving them or rather confirming a right of Seizure previous to the 1st of January 1776, it only indemnifies them for having possibly seized without such right. What they have done is made legal as to themselves but not legal as to the captures which are not thereby made liable to confiscation. Nor are any of the Men so taken, within the meaning of the bearing or super-numerary Clause of the Prohibitory Act. We therefore think the Vessels taken before 1776 not condemnable under this Act, but only such as have been taken since, which must be proceeded against in the Usual way.

2d Quere ー What Mode of Proceeding so you Advise in Order to Obtain the Condemnation of such of the said Vessells, as you are of Opinion are liable there[by] If according to the different circumstances in which the Vessells were Seized, you should think that different Modes of proceedings should [be] followed with different Seizures, please [to] point out the particulars

This Quere is answered towards the Close of what has been said on the last. We think moreover these proceedings cannot be too soon instituted, As unnecessary Detention before prosecution may be productive of Inconveniences, in case Sentence of Condemnation should not be obtained. The detention of every Man not taken since the Operation And by Virtue of the last Act may probably Subject the Admiral and Captains to Actions. If the Vessels taken before the last Act are not also released so as to enable the Owners to take Advantage of the provisoes in their favor, this may also expose the Admiral and Captains to the like Attacks. How to avoid these difficulties is a question of prudence: A too ready release or too obstinate a retention is equally hazardous: perhaps the Claimants may not be averse to make proposals accompanied with General release, and this may be so managed as to come from themselves.

Tho Harrison

Richard Welch 2