The Virginia Gazette

TO THE PRINTERS.

The enclosed opinion of the Attorney General to the Governour, tending to elucidate an affair in which I was concerned, and which had been grossly misrepresented much to my prejudice. In justice to myself, I beg the favour of you to publish the whole letter to the Governour in your paper, that the world may judge how unjust the treatment to me has been, in the opinion of a Gentleman deeply read in law, and of whose integrity you have sufficient testimony. If you think it necessary you may let this letter precede it.

CARTER BRAXTON.

WILLIAMSBURG, NOV. 13, 1779.

SIR,

I do myself the honour of returning to your Excellency, the papers referred to me, respecting the capture of the sloop captured by Capt. Cunningham, while commander of the privateer Paeun.

The resolutions entered into by Congress upon this subject on the eighth day of July 1779, call it publick punishment, as well as private reparation the former of which can be sought for upon no other principle than that Capt. Cunningham was guilty of piracy. and Mr. Braxton accessory thereto by virtue of his instructions.

If those, to whom letters of marque are granted, should, instead of taking the ships and goods of their enemies, against whom the war were worded, wilfully take or spoil the goods of another nation in amity, this would amount to a direct piracy. See Molloy. A B I. C 2d. Sec. 231. For as the animus furandi is a necessary ingredient in the crime of piracy (4. Black. 72. ut. H. P. C. Pa. 100) I understand Molloy, as intending by the terms "wilfully taking or spoiling" a capture accompanied with such circumstances, as indicate a depravity of mind, or in other words an intention to steal But Capt. Cunningham's subsequent conduct seems to remove all suspicion. He does not appropriate the sloop to himself, upon the confidence that mere power constituted a right, but brings her before an American Court of Admiralty, in order to obtain a regular condemnation.

Upon these grounds, the persons deputed by George Carew to execute certain letters of reprisal against the States General, which were called in by proclamation, were acquitted upon an indictment for piracy: The reason assigned for such acquittal being, that such caption was in order to adjudication. Molloy, B 1. C4. Sec. 34.

If indeed there were any evidence of a felonious and piratical spoliation, before the sloop was brought into court, the mere libelling of her there might not be a sufficient gloss for the act of plunder. But I do not find any document transmitted by Congress, which justifies such a charge.

Hence the innocence of Capt. Cunningham, the principal agent in this affair is admitted, and therefore Mr. Braxton cannot be criminal, as an accessory.

But although Cunningham were in truth guilty of piracy, no tribunal exists in Virginia for the cognizance of such an offence. For a jurisdiction for this purpose, can be derived from one of two sources only; a Statute of the British Parliament as 28 Henry VIII. or our own Act of Assembly which erects the Court of Admiralty; the former however will be found to be merely local, and therefore not within the ordinance of Convention, by which the British acts, prior to the fourth year of James I. were adopted by our legislature; and the latter in conformity I presume to the articles of confederation, interdicts the admiralty from the exercise of criminal authority. But at any event, the 28th Henry VIII though it were not merely local. extends to principals only, not to accessories. 3 Inst. 112. H. P.C B I. Ch 37 Sect. 7. How then can Mr. Braxton be amenable here? But I am persuaded, that redress in a civil way is within the attainment of the owners of the sloop: For although this doctrine is somewhat controverted by Molloy (B. I. Ch. 4. Sect. 19) yet the adjudged case there referred to, proves, that the proprietors of the privateer are certainly liable for damages; but under this limitation, that the matter of the sloop afforded no probable cause of seizure.

I am, Sir,

With respect,

Your Excellency's

Most obedient servant,

EDMUND RANDOLPH.

His Excellency the Governour.