Memorandum to Rear Admiral James Gambier, June 13, 1778

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[New York, N.Y.] 13^th June 1778—

Query 1"	Can Vessells be condemned in America for breach of Acts of Trade?
Answer:	The Ports in America not mentioned in the prohibitory Act enjoy all former priveledges, are liable to all former restrictions and of course vessells and Cargoes at such Ports transgressing the laws of trade become forfeited to the King. but at the Ports enumerated in the Prohibitory Act, there can be no forfeitures in consequence of former acts of Trade as that late act puts a stop to all trade, except such as is carried on by licensed Vessells for certain purposes.
Query 2^d	Can the King have a claim to any share of prizes made by virtue of the Prohibitory Acts?
Answer	No—by the first clause of the Prohibitory Act all ships and Vessells whatever going to trade or coming from Trading with the rebellious subjects in America are forfeited to His Majesty.¹ by the second clause of the same act, the Parliament gives to the officers and Seamen of His Majestys Navy the sole property of all Ships and Vessells so forfeited to the King which they shall seize and make prize of; only leaving to His Majesty the power of dividing such prizes. which is accordingly done by His Majestys proclamation dated 22d December 1775.² As the sole property of prizes are give by the above Act to the Navy, so the Navy by that act have the sole power of seizing. The Parliament past another act entitled An Act for enabling Commissioners &c &c—by this Act for the encouragement of what is there set forth, Commissions is granted to Private Ships of war who are also empowered to make prizes of Ships and Vessells forfeited to the King but more limitted than the Navy (X see the Act) the word Whatever being left out least (it is supposed) an improper use might be made of the same powers granted to the Gentlemen of the Navy.³ Altho the word of the act Differs from that of the Prohibitory, yet the Spirrit seems to be the same—the sole property of the Prize is given to the Captor. In any case when those private ships of war may exceed their powers in making a seizure, if the vessell seized ought to be a prize and can be condemned, the proceeds can never be adjudged to the King as neither of the two above mentioned Acts in any instance leave room for the King to claim any share or part of the amount of Seizures, all being given away by the very acts that empowered the taking of Prizes. So where the Judge cannot condemn to a private Ship and yet finds cause for condemning he ought to do it to the Navy Officer commanding at the Port where the Court is held, or to any officer of the Navy that takes possession of the prize as a forfeited vessell to His Majesty but brought in by a vessell that had no power to prosecute her agreable to Act of Parliament. This would answer the end intended by the Act; give the Navy the emolument, or an oportunity of doing a generous thing by the first Captor, and prevents what seems exceeding the intention of all Acts of Parliament forcing on the King more than he has a right to & of course more than he desires.

LB, N, Andrew Elliot Papers, Letterbook B, pp. 48–50. The author of the queries is not given but was presumably Andrew Elliot, in whose letterbook the memorandum was found. Elliot was superintendent of the Port of New York.

1. On the Prohibitory Act, which passed Parliament on 26 Dec. 1775, see David Murdoch, ed., Rebellion in America: A Contemporary British Viewpoint, 1765–1783 (Santa Barbara, California, and Oxford, England: Clio Books, 1979), pp. 352–55 and 357–59.

2. For this proclamation, see NDAR 3: 440-42.

3. For this act entitled an “Act for enabling the Lords of the Admiralty to grant Commissions to private Ships, &c. employed in Trade, or retained in his Majesty's Service, to make Prize of such Ships, &c. as are therein mentioned, for a limited Time," see NDAR 8: 662–64.

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Date

1778 June 13

Volume

Volume 13

Series

American Theater, June 1 to August 15, 1778

Naval Documents of the American Revolution

Memorandum to Rear Admiral James Gambier, June 13, 1778

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