I received yours of the 16th ulto pr your messenger, and have perused the papers sent therewith, from whence I have made a state of the case you desire to be advised about, as it occurs to me, and subjoined to it my opinion in full, both which you will receive inclosed. As matters are circumstanced I think you ought to proceed in prosecuting both vessels, lest your neglect, should be deemed a connivance at the opposition made to the Stamp Act, which is an affair of the Crown and probably may be thought worthy of censure.
Pray let Mr Quince have a sight of the Case and my opinion, as by my letter to him I have referred him to you for that purpose.
I was from home when your messenger came and did not return till last night which occasioned his tarrying I am, &c
P. S. The Act does not require that Registers should be on Stampt paperTo the Honble William Dry, Esq.
State of the case relative to the Sloops Dobbs and Patience, lately arrived in Cape Fear river, the one from Philadelphia, the other from St Christophers.
It is supposed that no Stampt Paper could be procured by the officers of the Customs in the ports from whence the said vessels sailed, therefore the Captains obtained clearances, certificates &c on common paper and proceeded to Cape Fear where they are seized by Capt Lobb, Commander of his Majesty's Sloop, Viper who makes information to the Collector of the Port, requiring him to commence prosecutions against them.
Quere, 1. Is failing to obtain Clearances &c on stamped paper a proper cause for seizing the said vessels and to be considered as a neglect of the duties required by the Acts of Trade sufficient to induce a Court of Admiralty to decree vessels and cargoes forfeited?
2. Upon proof being made that it was impossible to obtain Clearances &c on Stampt Paper of the officers of the customs in the ports from whence the said vessels sailed, will it not be a sufficient cause to induce the Court to decree in favor of the owner of the said vessels?
3. If it is necessary to prosecute on Capt Lobbs information, must the prosecution be commenced in the Court of Admiralty at Cape Fear, or must the said vessels be sent to Halifax in order to be libelled?
In answer to the first question—The Clearance &c being on common paper it is the same as if these vessels had sailed without clearances, and of course they are liable to be seized, and I think condemned by a Court of Admiralty with their cargoes.
2nd Reason does not require impossibilities and Courts of Admiralty often decree favorably on the part of the owners of the vessels and
3. If prosecutions are intended against these vessels, they must be sent to Halifax, for should they be libelled here, and the proceedings carried on upon common paper, such proceedings will be mere nullities and not alter the property either of the vessels or cargoes. As to the provision in the Stamp Act that penalties should be sued for where offences against that Act are committed, that must be understood of pecuniary penalties specified in the said Act, and can have no relation to matters mentioned in the above case. Upon the whole it is my opinion that it is the duty of Collector to prosecute on the information received.