charged in the Libell as by the depositions from No 8 to No 17 appear, The Witnesses being examined and publication past Fryday the 26 of Octr was appointed for the hearing of the Cause. But before the day of hearing the said Thomas Fowles (finding the facts charged in the Libell fully proved) applyed to the Supream Court for a prohibition suggesting the statutes of the 13th and 15th of King Richard the second, and the 2d of Henry the 4th the aforesaid Libell and plea to the Jurisdiction of the Court of Admiralty, and that the said Court of Admiralty refused to admit the said plea as by the said suggestions contained in the prohibition No19 appears, upon the argument of this matter it was insisted upon and shown by the Advocate General and the Council for the informant that the whole Province of New York was not contained within the 12 counties, for that the greatest part of Hudsons River and particularly the place where the Gunpowder, is said to be unladen from the said Sloop is not within either of the Counties tho within the province and shewed the Act of Assembly for dividing the province into Counties &c No 20. Whereby it appears that the two next adjoining counties to the place where the said Gunpowder &c : was unladen are bounded by the Water And that tho the said Sloop was seized on Shore within a County yet it was for matters done out of any County and within the Admiralty Jurisdiction. But notwithstanding these and many other Arguments used and Authorities shewn the Judges granted the prohibition No 19.
If the prohibition in this Cause was well issued no breach of the 15th Car : 2d Cap 7. can be tryed in the Admiralty (but must be tryed at Common Law by a Jury who perhaps are equally concerned in carrying on an illicit trade, and its hardly to be expected that they will find each other guilty) for if the importation into the province makes the breach of the Act, and no part of the province but is within one of the Counties And whatever is done within the County cannot be tryed in the Admiralty, but must be tryed by the common Law, consequently no breach of that Act can be tryed any way but by a Jury.
E. B. O'Callaghan, editor, Documents relative to the Colonial History of the State of New-York (Albany, 1855), VI, 154-155.
