From Edmund Randolph
Williamsburg Novr. 13. 1779.
I do myself the honor of returning to your Excellency the papers referred to me, respecting the Portuguese snow captured by Captain Cunningham while Commander of the privateer Phœnix.
The resolutions, entered into by Congress upon this Subject on the 21st. day of July 1779, call for public punishment, as well as private reparation; the former of which can be sought for upon no other principle than that Captain Cunningham was guilty of Piracy, and Mr. Braxton accessary thereto by virtue of his Instructions.
If those to whom letters of Marque are granted should instead of taking the ships and goods of that Nation, against whom the same were awarded, wilfully take or spoil the goods of another nation in Amity, this would amount to a direct piracy. See Molloy B.1. C.2d. §23d. For as the Animus furandi is a necessary ingredient in the crime of Piracy. 4 Black: 72–1 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 Captain Cunninghams subsequent conduct seems to remove all suspicion. He does not appropriate the Snow to himself, upon the confidence, that more 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 the Caption was in order to adjudication. Molloy. B.1. C.4. §34.
If indeed there were any Evidence of a felonious and piratical Spoliation, before the Snow 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 Captain Cunningham, the principal agent in this Affair, is assumed, and therefore Mr. Braxton cannot be criminal as an accessary.
But altho’ Cunningham be 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 two Sourses only; the Statute of the British Parliament 28. H. 8. 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 Law, by which the British acts, prior to the fourth year of James, the first, 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 Hen: 8. tho’ it were not merely local, extends to principals only, not to accessaries. (3 Inst: 112.—H. P. C. B.1. ch:37. §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 Snow. For altho’ this doctrine is somewhat contraverted by Molloy, B1. ch 4. §19. yet the adjudged Case there referred to, proves that the proprietors of the Privateer, are liable for damages. But under this limitation, that the Master of the Snow afforded no probable Cause of Seisure.
I am Sir with Respect Yr. Excellencys mo: obt. Servt.,
Tr (Vi), in an unidentified hand, enclosed in TJ to Harrison, 23 Nov. 1779; endorsed: “Nov 13th. 1779.” Another Tr (DLC: PCC, No. 71, i), in a different hand, enclosed in TJ to Huntington, 30 Dec. 1779; endorsed: “Copy of The Attorney’s Letter to the Governor.” Enclosures not located.