Journal of Maritime Law and Commerce, Vol. 31, No.1, January, 2000
Additional Light on the Origins of Federal
Admiralty Jurisdiction
WILLIAM R. CASTO*
I
INTRODUCTION
A number of years ago, I wrote an article that rejected the traditional
understanding of the origins of federal admiralty jurisdiction. l The thesis of
my original study was that the Founding Generation created federal
admiralty courts to adjudicate prize cases, revenue cases, and criminal cases.
In other words, our Founders had a public-litigation paradigm of admiralty
jurisdiction that was quite different from today's private-litigation paradigm.
At the time that the public-litigation thesis was originally formulated, I did
not know of an essay by Peter Stephen Du Ponceau that casts additional light
on the Founding Generation's understanding of the subject and supports the
public-litigation thesis. 2 The present response makes Du Ponceau's essay
more readily accessible. In addition, it takes up a recent critique by Professor
Jonathan M. Gutoff of the public-litigation thesis. 3
*Alison Professor of Law, Texas Tech University. B.A., J.D., University of Tennessee; J.S.D.,
Columbia University.
I See Casto, The Origins of Federal Admiralty Jurisdiction in an Age of Privateers, Smugglers, and
Pirates, 37 Am. J. Legal His!. 117 (1993) [hereinafter cited as Origins]. See also W. Casto, The Supreme
Court in the Early Republic 38-43 (1995) [hereinafter cited as Early Republic].
2See Du Ponceau, The Bill for the organization of the Judicial Department [c. 1789] (reprinted infra
at Appendix). This undated essay, which is in the Miscellaneous Manuscripts Collection of the American
Philosophical Society in Philadelphia, Pennsylvania, was written by Du Ponceau probably in the late
spring or early summer of 1789. His reference to the "Bill for the organization of the Judicial Department
being now before Congress" refers to the bill that later that year became the Judiciary Act of 1789.
Admiralty jurisdiction was an important topic covered by the Judiciary Act, and in June of that year
Pennsylvania's senators sought advice from members of the Philadelphia bar on the proper framing of
the judiciary. See 4 Documentary History of the Supreme Court of the United States, 1789-1800, at
406 n.1 (M. Marcus ed. 1992). Du Ponceau, who was a member of the Philadelphia bar, may have penned
his thoughts in response to these requests.
The essay also may have been written when the Federalists reorganized the judiciary in 1801. This
possibility, however, seems unlikely because the essay makes no reference to the Judiciary Act of 1789
or to the course of federal admiralty litigation in the 1790s. Regardless of whether the essay was written
in 1789 or 1801, it provides valuable evidence of the Founders' understanding of admiralty jurisdiction.
3See Gutoff, Original Understandings and the Private Law Origins of the Federal Admiralty
143
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The historical support for the public-litigation paradigm is multilayered
and was elaborated with painstaking detail in my original study. In late 18th
century North America, admiralty jurisdiction extended and was viewed as
extending to four categories of litigation: prize cases, revenue cases, crimes
on the high seas, and private disputes. Using published and unpublished
statistical analyses of specific American jurisdictions, my original study
established that by far the most common private dispute adjudicated in
admiralty was a mariner's simple claim for unpaid wages. Moreover,
numerous statements by American jurists and lawyers of the Founding Era
were adduced to establish that when people of that era actually thought of
private maritime disputes, their minds turned to sailors' claims for unpaid
wages.
The next analytical step in my original study was to speculate that the
Founders viewed federal-as opposed to state-admiralty jurisdiction as
vital to the national interest in respect of public litigation but comparatively
unnecessary in respect of private litigation. In other words, from a national
perspective, the Founders viewed public maritime litigation as quite important and private maritime litigation as relatively unimportant. This hypothesis might have been difficult to prove, but fortunately there was ample
evidence to support it.
In contrast to the self-evident importance of supplying a federal forum for
the public litigation, the need for a national forum to resolve sailors' claims
for unpaid wages seems trivial. Clearly there should be a forum to adjudicate
these claims, but the essential question in the Founding Era was whether a
significant national interest required that these claims be heard by federal
rather than state courts. The answer surely is that the Founders did not
believe there was such a national interest. My original study, however, did
not rely solely upon deductive speculation. It presented analyses by
respected attorneys of the Founding Era that expressly distinguished
between the national importance of public maritime litigation and the
relative unimportance of private maritime litigation.
Given the analysis and proof offered in my original study, Professor
Gutoff's critique is bemusing. He devotes much space to proving that the
Founding Generation knew that admiralty courts adjudicated private disputes, but no one has ever suggested that 18th century admiralty courts did
not handle private litigation. The keystone of the public-litigation paradigm
is the simple empirical fact that the Founders viewed private disputes as
essentially unimportant insofar as there was a need for federal jurisdiction.
My original study concluded: "The Founding Generation clearly understood
that admiralty courts frequently adjudicated private maritime claims. The
Jurisdiction: A Reply to Professor Casto, 301. Mar. L. & Com. 361 (1999) [hereinafter cited as Critique].
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adjudication of private disputes, however, occupied a comparatively unimportant place in their vision of admiralty jurisdiction."4
Much of Professor Gutoff's critique ignores this key issue of comparative
importance. When he finally addresses the issue, he presents an amalgam of
20th century conjectures quite unsupported by relevant evidence from the
historical record. At the same time, he frequently fails to address a good deal
of pertinent historical evidence that is in flat contradiction to his conjectures.
II
RANDOLPH'S REPORT
Professor Gutoff's refusal to grapple with the Founders' understanding of
the comparative national importance of public and private maritime litigation is evident in his analysis of Attorney General Edmund Randolph's 1790
Report to the Congress on the federal judicial system. 5 As my original study
noted, Randolph was a highly respected Founder who played a leading role
at the Constitutional Convention in Philadelphia, had extensive admiralty
experience, and was selected by President Washington as the nation's first
Attorney General. His Report is part of the evidence that establishes the
public-litigation paradigm held by his generation.
For purposes of analysis, my original study organized Randolph's
discussion into the now familiar four categories of prize cases, criminal
cases, revenue cases, and "claims for specific satisfaction on the body of a
vessel, as for mariners' wages &c." Professor Gutoff more or less agrees
with these four categories 6 but would add a fifth, which he calls "Cases
arising on the open sea, where the litigants or litigated property are within
the territory of the United States."7 This idea of a fifth category is clearly
correct, and I accept it as a valuable supplement to my original study.
The additional category provides a more complete description of 18th
century admiralty law, but Professor Gutoff's valuable contribution does not
40rigins, supra note I, at 153.
5Professor Gutoff provides an extended excerpt of the Report because "the series in which the report
is reproduced is relatively rare." Critique, supra note 3, at 369 n.49. Presumably the "rare series" is the
American State Papers published in the first half of the 19th century. For a modem edition of the Report,
including extensive editorial notes, see Marcus, supra note 2, at 122-67. In the present note, all page
references to Randolph's Report are from this modem edition.
6He does quibble with my original study's treatment of revenue cases and "mariners' wages &c." as
separate categories. See Critique, supra note 3, at 368 -69. In fact, they clearly are separate categories,
and Attorney General Randolph treated them as functionally different. Presumably he lumped them
together because neither revenue cases nor "mariners' wages &c." fit traditional English theory about the
proper scope of admiralty jurisdiction. See Origins, supra note I, at 133 n.87 (revenue cases), and infra
at Appendix ("mariners' wages &c").
7Critique, supra note 3, at 369.
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affect my original study's conclusions about the origins of federal admiralty
jurisdiction. My original study established that the Founders viewed admiralty courts as adjudicating both public litigation and private litigation and
that most8 Founders believed that from a national perspective the public
litigation was by far the most significant. Professor Gutoff's additional
category simply tinkers with the types of cases that constituted the grist of
the admiralty courts' private-litigation mill. There is nothing in his critique
or the extant historical record to suggest that the Founders viewed this
additional category as implicating important national interests. Indeed, the
historical record suggests precisely the opposite.
At first glance the additional category of cases arising on the open sea
seems similar to the other category of "claims for specific satisfaction on the
body of a vessel as for mariners' wages &c." Both categories appear to
embrace private maritime claims. The similarity disappears, however, when
the additional category is relabeled using Attorney General Randolph's
actual words. The Attorney General did not use the phrase "cases arising on
the open sea." These words are Professor Gutoff's explanatory emendation.
Attorney General Randolph actually described the additional category as
"all causes, arising wholly on the sea, and not within the precincts of any
county."9 This phrase uses technical words of art that the Founders
understood as referring to the English admiralty courts' jurisdiction over a
quite narrow category of private disputes. In the preceding sentence of the
Report, Randolph explained that he was consciously using words with a
technical meaning tied to English practice. 10 These pure maritime cases that
arose "wholly" at sea were categorically different from Randolph's other
private-litigation category of "claims ... for mariners wages &c." The latter
category involved maritime claims that did not arise "wholly" on the sea. I I
8My original study speculated that James Wilson wished to expand the federal admiralty courts'
jurisdiction over commercial disputes. See Origins, supra note I, at 134 & 135. Peter Du Ponceau also
had a modem vision of admiralty jurisdiction. See infra at Appendix.
9Randolph's Report, supra note 5, at 129.
IOld.
11 Du Ponceau' s essay replicates Randolph's division of private disputes into causes arising wholly at
sea and "mariners' wages &c." Du Ponceau gives a more detailed account of the later category, which
includes "Mariners' Wages, foreign Bottomries in some cases & a few more trifling objects." See infra
at Appendix. The problem with these cases is that they typically involve agreements formed on land. A
captain hires sailors at dockside or in a tavern. Money is borrowed and a security interest in the ship (i.e.,
a bottomry bond) is given in the lender's office. Therefore, these cases clearly do not arise wholly at sea.
Du Ponceau explained that these "trifling" cases came into admiralty jurisdiction "from the necessity of
the thing" and were "winked upon by the Courts of Common Law." Id.
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III
NATIONAL INTERESTS IMPLICATED BY CAUSES ARISING
WHOLLY AT SEA
The extant historical record contains no evidence to indicate that the
Founders thought that the category of causes arising wholly at sea implicated
any significant national interest. Indeed, 20th century admiralty authorities
have dismissed Professor Gutoff's additional category as verging on
irrelevance. For example, Professors Gilmore and Black have explained that
the English common law judges effectively restricted the category to
"absurdly narrow limits."12 Even Professor Gutoff has concluded elsewhere
that this category of admiralty jurisdiction was in practice "severely
restricted."13
Knowledgeable lawyers of the Founding Generation shared the modern
perception that Professor Gutoff's additional category was absurdly narrow.
In 1789, Peter Du Ponceau penned an essay on the proper scope of the soon
to be created federal admiralty jurisdiction. Du Ponceau, who was one of the
Early Republic's finest lawyers, practiced international commercial law and
had special expertise in the law of nations, constitutional law, and admiralty
law. 14 Like Justice Story many years later, Du Ponceau sought to give the
federal courts an extensive jurisdiction over private maritime disputes,
and-also like Justice Story-Du Ponceau saw the English model of
admiralty jurisdiction as an undesirable impediment. He bitterly complained
that English statutes, as construed by "Lord Coke & the most eminent
common Lawyers," had stripped the Admiralty of jurisdiction over "any
civil matters but of contracts made at Sea to be executed at Sea, which in fact
seems to amount to an impossibility, or a thing which must happen very
rarely indeed."15 He went on to explain that if "a Contract is made at Sea to
be executed at Land, or at Land to be executed at Sea, it becomes a matter
of [exclusive] Common Law Jurisdiction."16 Thus, Du Ponceau clearly
understood that under English practice the category of causes arising wholly
12G. Gilmore & C. Black, The Law of Admiralty 10 (2d ed. 1975). Accord D. Robertson, Admiralty
and Federalism ch. 3 (1970); T. Schoenbaum, Admiralty and Maritime Law 15 (1st ed. 1987) (The
English Admiralty Court "became a minor judicial body with little to do.").
13See Gutoff, Admiralty, Article III, and Supreme Court Review of State-Court Decisionmaking, 70
Tu!. L. Rev. 2169, 2176 n.21 (1996).
14See H. Knott, Du Ponceau, Pierre Etienne, in 5 Dictionary of National Biography 525 (A. Johnson
& D. Malone eds. 1930).
15See infra at Appendix.
161d. The word "exclusive" has been added to indicate Du Ponceau's understanding of the common
law practice of issuing writs of prohibition against admiralty litigation within the common law courts'
jurisdiction.
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at sea was narrow indeed and rarely (if at all) extended to maritime
commercial transactions.
Although Du Ponceau wished to expand federal admiralty jurisdiction
over commercial disputes, he understood that the English practice would
have to be rejected before his wish could be fulfilled. The first Congress,
however, did not accede to his wish. Certainly the language of the Judiciary
Act of 1789 does not suggest a general rejection of the English practice. Du
Ponceau's wish was not granted until the 19th century.
Given the relative insignificance of causes arising wholly at sea, one
might wonder why Attorney General Randolph thought that this category of
litigation had to be given to the national admiralty courts. Why could they
not be treated like "mariners' wages &c" and be consigned to the state
courts? Randolph had no doubts about the answer to this question. These
relatively rare cases had to be given to the federal courts because no other
courts could take them. The power to adjudicate disputes that arise wholly
at sea is an attribute of national sovereignty.17 If the states were independent
countries, they could try these cases. He explained, however, that "being a
party to the federal compact, each State has resigned it [i.e., the power to
adjudicate causes arising wholly at sea] to the federal government."18
IV
THE COMPARATIVE IMPORTANCE OF PRIVATE LITIGATION
In grappling with the three public-litigation categories, Professor Gutoff
does not address the extant historical record. Instead, he conjectures that, "At
the time of the ratification of the Constitution and the passage of the first
Judiciary Act ... prize would not have been paramount in the minds of those
with experience in maritime matters."19 Elsewhere he suggests that "the
founding generation ... had a model of admiralty that was based largely, if
not solely, on private litigation."20 The only evidence he cites for these
startling propositions is a misreading of an English legal dictionary21 and an
17See Randolph's Report, supra note 5, at 129.
18Id. Randolph had advanced the same analysis in a 1779 legal opinion rendered to Virginia's
Governor Thomas Jefferson. See Edmund Randolph to Thomas Jefferson (Nov. 13, 1779), reprinted in
3 The Papers of Thomas Jefferson 184 (J. Boyd ed. 1951).
19Critique, supra note 3, at 401.
2oId. at 383. See also id. at 375 & 386.
21Professor Gutoff refers to an entry entitled "Admiral" in Jacob's Law Dictionary that provides a
general discussion of admiralty. See Critique, supra note 3, at 382-83. He notes that this entry only refers
to issues of prize "in a secondary matter" and therefore deduces that "the founding generation ... would
have had a model of admiralty that was based largely, if not solely, on private litigation." Id. at 383. This
anachronistic reading ignores Jacob's other discussions of admiralty law in entries entitled "Prize,"
"Privateers," and "Pirates." Revenue is not treated as a subject of admiralty law in Jacob's because
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advocate's argument that was immediately and summarily rejected by the
Supreme Court. 22 He simply ignores the evidence that was presented in my
original study.
My original study included extensive evidence to support the importance
in the Founders' minds of the public-litigation cases, including specifically
the privateering cases. Professor Gutoff does not address the fact that during
the enactment of the Judiciary Act of 1789 members of Congress noted all
three paradigmatic categories of public litigation but never mentioned
private maritime litigation. 23 He does not grapple with Alexander Hamilton's flat statement in Federalist No. 80 that prize cases are the "most
important part" of admiralty jurisdiction. 24 He does not mention William
Tilghman's argument that from a national perspective, cases of capture were
significantly more important than private maritime litigation. 25 Nor does he
mention that more than 75% of the early Supreme Court's admiralty cases
were privateer cases. 26 Nowhere does he address James Wilson's and
William Paterson's understanding of the national interest in supporting and
regulating privateersP Surely this evidence is pertinent to how the Founders
viewed admiralty jurisdiction over privateers' activities.
Professor Gutoff's treatment of revenue cases follows the same pattern.
He theorizes that "Revenue cases ... were not a particularly important part
of the admiralty business of the district courtS."28 In contrast to this
insupportable speculation, knowledgeable framers understood "it is indispensably necessary that Courts of Admiralty be immediately instituted
[because] without them no system of Revenue can be put in Execution."29
He never addresses the historical facts that the effective collection of
revenue was vital to the new nation, that about 90% of national revenue
came from import duties, and that these import duties were enforced in
Jacob's is a dictionary of English law. In North America. the colonial vice-admiralty courts routinely
tried revenue cases, but in England revenue cases had to be tried in the Exchequer-not the Admiralty.
See Origins, supra note I, at 133 n.87.
22See Glass v. The Sloop Betsy, 3 U.S. (3 Dall.) 6 (1794). The Justices were unanimous on this point
and specifically emphasized that they were "decidedly of opinion, that every District Court in the United
States, possesses all the powers of a court of Admiralty, whether considered as an instance, or as a prize
court...." Id. at 16.
230rigins, supra note I, at 147.
24Id. at 138. Professor Gutoff ignores the superlative "most" and instead writes, "Hamilton may have
believed that private disputes were also important." Critique, supra note 3, at 373.
250rigins, supra note I, at 128-29.
26Id. at 150.
27Id. at 124 & 136.
28Critique, supra note 3, at 385.
290tho Williams to David Humphries (May 12, 1789) (quoted in Early Republic, supra note I, at 39).
Williams was a distinguished Revolutionary War officer who three months later became Collector of the
port of Baltimore.
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admiralty courts. 30 He does not mention Federal District Judge Bee's
complaint from South Carolina about the "frequent Petitions" in his court to
enforce revenue laws or the fact that 58% of Bee's docket was given over to
these cases. 31 Again, this evidence cannot be ignored.
Professor Gutoff's treatment of crimes at sea also follows the same
pattern. He speculates that "piracy ... probably was not foremost in the
minds of the founders when thinking of admiralty."32 He fails to mention,
however, the various Founders who clearly understood crimes at sea to be a
part of federal admiralty jurisdiction. 33 Nor does he address the fact that in
the early years of the federal courts' operation, a substantial majority of their
criminal cases "stemmed from actions occurring at sea."34 Perhaps criminal
prosecutions were not as vital to the national interest as cases involving
privateers and the revenue, but a critique of the criminal law category should
at least mention the evidence in support of it. Moreover, even if criminal law
was the least important aspect of the public-litigation paradigm, Professor
Gutoff has presented no evidence on how the Founders viewed the
comparative importance of criminal prosecutions and private litigation.
Notwithstanding Professor Gutoff's conjectures about the primacy of
private litigation, he concedes, as he must, that the reasons for federal
jurisdiction over public litigation are "more readily apparent than those for
private law disputes."35 He also does not dispute-and indeed, implicitly
concedes-that the private dispute most commonly adjudicated by North
American admiralty courts in the 18th century was a simple claim by a
seaman for wages. He argues, however, that the Founders believed that
300rigins, supra note 1, al 133-34.
31Id. at 149. Instead of addressing Judge Bee's experience in South Carolina, Professor Gutoff elects
to rely upon an incomplete survey of 14 cases decided during the first three years of operation of the
federal district court for New York. Critique, supra note 3, at 385 n.104. His conclusion that, "In New
York, most revenue cases do not appear to have generated much activity" is suspect to say the least. He
elects not to mention the fact that Judge Hough, in his study of New York admiralty courts, noted that
during the immediately preceding years more than half of the state admiralty court's business was taken
up by revenue cases. Origins, supra note 1, at 127 n.52.
Professor Gutoff also cites an 1842 admiralty treatise for the proposition that revenue cases were not
really a part of admiralty jurisdiction. Critique, supra note 3, at 385 n.1 04. He chooses, however, not to
mention the fact that the first edition of this same treatise, published in 1831, stated, "By far the most
important class of [civil admiralty cases other than prize cases], so far as they have as yet been
authoritatively and definitively determined, is that of all seizures under laws of import, navigation, or
trade." Origins, supra note 1, at 151 n.179 (quoting the first edition).
32Critique, supra note 3, at 400-01.
330rigins, supra note I, at 120 (Edmund Randolph); id. at 131 (Virginia Plan at the Constitutional
Convention); id. (small states plan at the Constitutional Convention); id. at 147 n.152 (William Smith);
id. (Samuel Livermore); id. (Michael Stone); id. at 156 (David Sewall). See also id. at 139 n.1 14 (James
Madison).
34Id. at 150 (quoting D. Henderson, Courts for a New Nation 65 (1971)).
35Critique, supra note 3, at 390.
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national security and the future of maritime commerce required a federal
forum for the adjudication of these mundane claims.
Professor Gutoff devotes six pages to establishing the self-evident fact
that a reliable supply of seamen is essential for a maritime nation that needs
to crew its merchant marine and its navy.36 He conjectures that the
availability of an effective judicial remedy for unpaid wages was therefore
in the national interest because it would contribute towards sailors' willingness to embark upon or continue maritime careers. Although there is a
certain macro-economic logic to this conjecture, the link between the
availability of the remedy in federal rather than state court and the
consequent impact upon the size of the maritime labor force is so attenuated
that the argument collapses into implausibility. Certainly there is no
evidence that anyone in the Founding Generation ever perceived a link
between federal jurisdiction over mariners' wages and the nation's security3?
and commercial well-being. 38
In addition to being implausible, there is clear historical evidence that the
Founders did not embrace Professor Gutoff s attenuated analysis. When
Attorney General Randolph prepared his 1790 Report to the Congress on the
Federal Judiciary, he concluded that there was no need for federal admiralty
jurisdiction over "claims for specific satisfaction on the body of a vessel as
for mariners' wages &C."39 Instead, Randolph noted that "the State legisla36Id. at 390-95.
37The evidence that Professor Gutoff presents on the national security issue is the difficulty that Great
Britain had in manning its navy during its wars with France. Id. at 393-94. He notes in particular that
"the English notoriously employed impressment." Id. at 394. If the Founders ever thought of this
convoluted argument-and undoubtedly they did not-they would have immediately dismissed it. First,
the availability of admiralty courts to adjudicate mariners' wages in England obviously did not solve
Britain's problem. Second, the British problem was largely a function of dreadful conditions in the lower
decks (see id. at 393 n.131) and having to man the largest navy in the world. Third, the United States did
not even have a navy, and when it was created in the late I790s, it was quite small. See I R. Love, History
of the U.S. Navy 52-61 (1991).
38Professor Gutoff notes that the first Congress passed an Act for the Government and Regulation of
Seamen in the Merchant Service, July 20, 1790, I Stat. 131, discussed in Critique, supra note 3, at
395 n.138. This statute, however, simply evidences the Congress' solicitude toward seamen. Although we
may infer from the statute that Congress saw a link between maritime commerce and the fair government
and regulation of seamen, nothing in the statute even hints that Congress believed that federal admiralty
jurisdiction over mariners' wages implicated a significant national interest. In fact, the statute suggests
that the precise opposite is the case.
In § 2 of the Act, Congress created a statutory cause of action against any seaman who "shall neglect
to render himself on board the ship." The statute went on to provide that the cause of action was
enforceable "in any court, or before any justice of [or?] justices of any state, city, town or county within
the United States, which, by the laws thereof, have cognizance of debts of equal value." This provision
clearly provides for enforcement in State court but apparently excludes federal jurisdiction. In particular,
the phrase "laws thereof' appears to refer to state rather than federal law. Other provisions of the statute
indicate an express willingness to entrust state courts with power to enforce the statute. See §§ 3-7.
39See Randolph's Report, supra note 5, at 130.
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tures may establish a jurisdiction reaching the vessel itself."40 This clear
statement by the AttomeyGeneral of the United State, a man well-versed in
admiralty, is utterly inconsistent with attenuated conjectures about the
national significance of mariners' wages. Professor Gutoff never explains or
even hints at how Randolph's statement fits into his theory. Similarly, Peter
Du Ponceau dismissed the category of "mariners' wages &c" as "trifling."41
Professor Gutoff goes on to conjecture that the Founders may have
wanted to create federal admiralty courts because admiralty procedure
(including the availability of in rem jurisdiction) was superior to common
law procedure and therefore would facilitate commerce. The Founders may
or may not have believed in the superiority of admiralty procedure. 42 In any
event, the conjecture begs the question. My original study established-and
Professor Gutoff has more or less conceded-that when most Founders
thought about private maritime litigation, they thought about sailors seeking
unpaid wages. The availability of admiralty's "superior" procedures to
resolve significant commercial disputes as opposed to insignificant wage
claims would not have occurred to most Founders because most Founders
did not perceive admiralty jurisdiction as extending to significant commercial disputes.
Moreover, Professor Gutoff's conjecture about the superiority of admiralty procedure ignores the existence of state courts and state legislatures. He
presents no evidence to suggest that the Founders believed the state
governments to be less concerned about the nation's commercial future than
the federal government. As Attorney General Randolph's Report explains,
the state legislatures were free to enact admiralty procedures like in rem
jurisdiction for the resolution of many private maritime disputes in state
court. 43
Professor Gutoff's final conjecture about the Founders' perception of the
need for federal admiralty courts is logically similar to his speculations
about the importance of sailors' claims and the superiority of admiralty
procedure. He writes that the "wrongful seizure of a vessel could lead to
war,"44 but the supporting evidence that he cites is irrelevant. For example,
he notes the case of The St. Joseph and St. Helene, a Spanish ship that ran
4Ord.
41See infra at Appendix.
42Professor Gutoff presents no historical evidence of what the Founders actually thought about this
issue. The earliest source that he cites is an 1833 opinion by Justice Story (see Critique, supra note 3, at
396-97 n.146), who was in preadolescence when the first Congress was convened. If one were to
conjecture in the absence of historical evidence, it is at least equally plausible that the Founders, who
cherished the common law, would have been reluctant to view common law procedure as inferior.
43See Randolph's Report, supra note 5, at 130.
44Critique, supra note 3, at 398.
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aground in New England in 1752.45 When her rich cargo of gold, silver, and
indigo was brought ashore, much of it was looted, which had local and
international repercussions. 46 A second ship eventually was chartered to
transport the remaining cargo to Spain, but it was libeled for wages. The
resulting international incident was obviously caused by the looting of the
Spanish government's gold and silver-not the subsequent in rem attachment. Professor Gutoff presents no evidence that Spain ever complained
about the attachment. 47 Nor does it appear that any complaint would have
been possible because the second ship was a specially-chartered New York
vessel and apparently not a Spanish bottom. 48 There simply is no evidence
that any Founder-indeed, anyone-ever believed that the power of in rem
jurisdiction should be entrusted exclusively to federal courts in order to
avoid wars. 49
45Id. at 398 n.151, relying upon Andrews, Vice-Admiralty Courts in the Colonies, in Records of the
Vice-Admiralty Court of Rhode Island, 1716-1752,33 (D. Towle ed. 1936), and Professor Robertson's
Admiralty and Federalism, supra note 12, at 83- 84. More detailed accounts of this incident are found in
F. Caulkins, History of New London, Connecticut 462-68 (1852), and R. Hooker, The Spanish Ship Case
(1934). Caulkins' account is a good read.
46Caulkins reports that the Spanish ship "was richly freighted with indigo ... and had on board sundry
chests, boxes and kegs of gold and silver, in bullion and coin." Caulkins, supra note 45, at 462. Eventually
the Spanish government formally complained to London, and an official enquiry was conducted. As a
result of this embarrassing incident, the governor of Connecticut was turned out of office by the voters,
which was virtually unheard of in colonial Connecticut.
47The most detailed account of the incident clearly indicates that Spain was angry about the theft of
property and contains not the slightest suggestion of a protest againt the in rem attachment. Hooker, supra
note 45, at 31-33.
48]0 The Public Records of the Colony of Connecticut 236 (C. Hoadly ed. 1877). Moreover, the
libellant withdrew his action a month and a half after the in rem attachment and there is no evidence that
the attachment delayed the ship's departure. Hooker, supra note 45, at 28.
49Like the case of the Spanish ship, none of the other disputes cited by Professor Gutoff led to war,
and the prospect of war was not even mentioned in the reports of the disputes. Also, like the Spanish ship,
the foreign policy ramifications of each dispute clearly stemmed from the substantive issues involved
rather than the coincidental use of in rem attachment.
The second dispute offered by Professor Gutoff did not even involve in rem jurisdiction. Sometime
during the 1780s, a man allegedly stole a Dutch vessel and cargo and took them to Rhode Island. When
the Dutch minister attempted to extradite him back to Holland, the state of Rhode Island refused on the
basis that the suspected thief had become a naturalized citizen. Critique, supra note 3, at 398 n.150
(quoting 4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 19 (J.
Elliot ed. 1836)). William R. Davie, who described the event during the North Carolina ratification
debates, thought that Rhode Island's misconduct demonstrated the need for a national "uniform rule for
naturalization." Until Professor Gutoffs article, written more than 200 years later, no one had ever
suggested that this incident was relevant to admiralty law or in rem jurisdiction.
The third dispute involved two Swedish sailors' claims for wages before the federal district judge in
Philadelphia in 1790. Weiberg v. The St. Oloff, 29 F. Cas. 591 (D. Pa. 1790) (No. 17,357). The Swedish
captain, with the assistance of Swedish consular officials, argued that the existing treaty between the
United States and Sweden gave the Swedish consul "an exclusive jurisdiction in the adjustment of
disputes between the captains and their mariners...." Id. at 591. On its face this argument was equally
applicable to in personam jurisdiction. Moreover, the case was commenced by citation rather than in rem
attachment, so the Swedish captain's argument could not have been a complaint about in rem jurisdiction.
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There is, however, persuasive evidence that the Founders had no objection
to state legislatures empowering state courts to exercise in rem jurisdiction
over vessels in the adjudication of many private maritime disputes. My
original study explained in detail the Founders' understanding of admiralty
jurisdiction under the Judiciary Act of 1789. 50 The Founders understood that
admiralty's jurisdiction was exclusive in some cases and concurrent with the
common law courts in others, but their understanding of this issue was
radically different from today's. The distinction between in personam and in
rem that exists today never occurred to any Founder as a test of exclusive
jurisdiction. Instead, the Founders' understanding was keyed to the nature of
the underlying action, and courts used this substantive analysis before and
after the passage of the Judiciary ACt. 51 To be sure, the Founders understood
that the common law courts exercised in personam jurisdiction and that the
admiralty courts exercised in rem jurisdiction. That is why Attorney General
Randolph assumed that state legislation would be necessary to give the state
courts in rem power over vessels. There is not a single known case in the
federal government's first 30 years of any court using the in personam/in
Subsequently, the court attached the Swedish vessel, but nothing in the extensive report of the case even
suggests that the coincidental attachment altered the Swedish objections. After the attachment, the court
initiated contempt proceedings against the Swedish captain, and as Professor Gutoff notes, the United
States Attorney was consulted during the contempt proceedings. But contempt proceedings are in
personam-not in rem.
The fourth dispute proffered by Professor Gutoff is the famous case of The Amistad, 40 U.S. (15 Pet.)
518 (1841). Even Professor Gutoff tacitly admits that the Spanish consuls did not enter the case to protest
the exercise of in rem jurisdiction. The consuls' arguments went to the question of ownership of the
slaves and not the coincidental use of in rem jurisdiction. In any event, it is difficult to conceive how a
dispute that arose in the late I830s could have influenced the Founding Generation some 50 years earlier.
Professor Gutoff also cites Jacob's Law Dictionary for the proposition that "a merchant whose goods
or vessel were wrongly condemned could petition his own government, which, if the condemnation were
found unjust, might issue letters of marque and reprisal." Critique, supra note 3, at 398. This is a flat
misreading of a passage that discusses final judgments rather than in rem attachments. Jacob's Dictionary
actually reads:
When sentence is given in a foreign Admiralty, the party may libel in Execution of that Sentence
here.... Sentences of any Admiralty in another Kingdom are to be credited ... and shall not be
examined at Law here: But the King may be petitioned, who may cause the Complaint to be
examined; and if he finds just cause, may ... grant Letters of Marque and Reprisal.
The word "sentence" in this passage clearly refers to an admiralty court's final judgement and not to
in rem process. If there were any doubt, reliable authority tells us that the word sentence is a technical
term of art used to describe civil and criminal judgments of "ecclesiastical and admiralty courts." 9
Oxford English Dictionary 468 (I st ed. 1933).
50See Origins, supra note I, at 140-49.
51See id. at 143-44, 145-46 n.142. Under the common law of England, causes arising wholly at sea
were beyond the jurisdiction of the common law courts. In contrast, cases like "mariners' wages &c" that
had ties to both the land and the sea were within the common law courts' jurisdiction. See Randolph's
Report, supra note 5, at 130. Accord Du Ponceau's essay, infra at Appendix.
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rem dichotomy as a tool for divining exclusive jurisdiction. 52 Professor
Gutoff does not seriously dispute this aspect of my original study.53
In addition to offering no historical evidence in support of his speculation
that the Founders believed that the exercise of in rem jurisdiction had
significant national security implications, Professor Gutoff fails to address
important historical evidence to the contrary. My original study established
that the Judiciary Act of 1789 did not bar the states from exercising in rem
jurisdiction over foreign vessels. 54 As Attorney General Randolph explained, "In the [case of mariners' wages &c], the State legislature may
establish a jurisdiction reaching the vessel itself."55 If the Framers seriously
believed that in rem jurisdiction might embroil the nation in war, the
Congress and the Attorney General surely would not have wished the states
to have this dangerous power.
V
THE SHIFT FROM PUBLIC LITIGATION TO PRIVATE LITIGATION
The Founding Generation's public-litigation paradigm was radically
different from today's private-litigation paradigm, and a paradigm shift
obviously has occurred since the early days of the Republic. My original
study, however, did not attempt a complete explanation of the shift. Instead,
I theorized that the change occurred throughout the 19th century and
suggested a number of factors that contributed to the change. Essentially, my
original study proposed that the change was caused by a diminution in the
52As noted in my original study, the in personam/in rem dichotomy was first used in a treatise on
British, rather than American. admiralty law published in Ireland in 1802. The dichotomy did not appear
in America until 1820, when a state trial judge relied upon the British treatise. Origins, supra note I, at
142 n.I31.
53Professor Gutoff does not cite a single case that ever used the in personam/in rem dichotomy, and
he concluded that at least one early judge "rejected" it. See Critique, supra note 3, at 390 n.121. He
frequently notes that in rem jurisdiction over vessels was unique to admiralty courts and that common law
courts used in personam jurisdiction. This clear historic fact, however, does not in any way impeach the
origin understanding established in my original study. Founders like Attorney General Randolph fully
understood this problem. That is why he thought that state legislation was necessary.
Professor Gutoff also challenges my original study's use of Jacob's Law Dictionary to suggest that
the word "remedy" in the "saving to suitors" clause did not have to be read as referring to in personam
remedies. In this regard, my original study advanced the idea that the word remedy could mean cause of
action and therefore the saving to suitors clause could reasonably have been read as preserving concurrent
jurisdiction where the common law was competent to supply a cause of action. See Origins, supra note
I, at 146. Professor Gutoff disputes this reading (see Critique, supra note 3, at 389 n.120), but the crucial
point is that the meaning of the word remedy is slippery indeed. Given the word's inherent ambiguity,
a true understanding of what the "saving to suitors" clause meant in 1789 should be drawn from the
uniform rejection of the in personam/in rem dichotomy before and after the clause's enactment.
54See Origins, supra note I, at 140-49.
55Id. at 121 (quoting Randolph's Report).
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significance of the three paradigmatic categories of public litigation coupled
with a radical expansion of the federal courts' power to adjudicate private
maritime disputes. Although Professor Gutoff denies that there ever was a
public-litigation paradigm, he attempts to challenge the factors originally
proposed as contributing to the paradigm shift.
A fundamental problem with Professor Gutoff's critique of my original
study's hypothesis of a paradigm shift in the 19th century is that he seems
to miss the difference between changes in society-in our case, the legal
profession-and changes in legal doctrine. He notes, with perhaps a hint of
sarcasm, that "Casto never quite explains when the change took place."56 If
the paradigm shift were strictly a matter of legal doctrine, the shift might be
located more specifically in time by reference to a Supreme Court decision
or an Act of Congress. But the shift describes a sociological change rather
than the advent of a new rule of decision. The shift deals with American
lawyers' understanding of the primary purpose of federal admiralty courts.
Changes in the attitudes of groups of people are not as neat as changes in
legal doctrine sometimes are. For example, over the last 100 years
Caucasian-American society has experienced a radical change in attitude
regarding the right of African-Americans to participate fully in society. Any
attempt to tie the change to a particular year or event, however, would be
utter folly. In terms of bare legal rights, premonitory evidence of the change
may be found in the 19th century in the Fourteenth Amendment and Justice
Harlan's dissent in Plessy v. FergusonY Additional milestones-again in
terms of bare legal rights-are found in the decision of Brown v. Board of
Education 58 and the Civil Rights Act of 1964. But before and after each of
these milestones, some powerful members of the legal profession continued
to cleave to the old paradigm. Although there has been an undeniable shift,
there clearly is no date or year when the shift transpired.
My original study noted that the federal courts' admiralty jurisdiction over
private disputes was radically expanded during the 19th century. One aspect
of the expansion was the decision in The Genesee Chiej59 and subsequent
cases to expand admiralty jurisdiction to all navigable inland waters. This
change, coupled with the explosion of commerce on the Great Lakes and
along the Ohio and Mississippi Valleys, clearly expanded the bulk of private
admiralty litigation but, for reasons noted in my original study, did not
expand public admiralty litigation. Because my original study also had noted
56Critique, supra note 3, at 399 n.154. See also id. at 401 n.165.
57 163 U.S. 537, 552 (1896) (Harlan, J., dissenting).
58 347 U.S. 483 (1954).
59 53 U.S. (12 How.) 443 (1851).
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that the paradigm shift had already begun in the very early 19th century,60
Professor Gutoff concludes that The Genesee Chief could not have contributed to the paradigm shift. He explains that the "expansion would have come
long after the 'shift' was admittedly underway."61 His objection is akin to
saying that events of the 20th century are irrelevant to changing attitudes
about the participation of African-Americans in society because the change
had already begun in the 19th century. The objection is simply irrelevant. 62
Another factor that worked a radical expansion of admiralty jurisdiction in
the 19th centiIry is Justice Story's opinion in De Lovio v. Boit. 63 Professor
Gutoff s analysis of De Lovio also completely misses the mark. He notes that
Justice Story's expansive approach to admiralty jurisdiction was contested
early and not formally adopted by the Supreme Court until 1871. 64 This
history of De Lovio, however, is utterly consistent with and supports my
original study's hypothesis that De Lovio influenced a paradigm shift in the
19th century.
Professor Gutoff s second analysis of De Lovio is irrelevant in a different
way. He notes that De Lovio involved an insurance contract and therefore
"would not in practice have worked much of an expansion-insureds
generally preferred to bring their actions at law."65 This reading of Justice
Story's opinion is incomprehensible. No one has ever thought that the De
Lovio rationale was so restrictive. My original study, Justice Story, and
countless others have understood the rationale to extend generally to "all
maritime torts and all contracts that 'relate to the navigation, business, or
commerce of the sea. "'66
When Professor Gutoff turns to the hypothesis that the 19th century
witnessed a substantial decline in the significance of the three categories of
public litigation, he again fails to address my original study's arguments and
60See Origins, supra note I, at 151.
61Critique, supra note 3, at 400.
62Professor Gutoff also argues that the impact of The Genesee Chief may have been eliminated by the
availability of state common law courts to adjudicate claims arising upon inland waters and the advent
of railroad transportation. His point-that these two factors diverted claims from the federal courts'
expanded jurisdiction-is undoubtedly correct, but is irrelevant unless he means that The Genesee Chief
was thereby rendered a dead letter. In analyzing a paradigm shift in admiralty from public litigation to
private litigation, the proper comparison is between admiralty jurisdiction before and after The Genesee
Chief Until someone proves otherwise, it is reasonable to indulge a presumption that after The Genesee
Chief, the federal courts in Great Lakes ports and other cities (like St. Louis) experienced a significant
increase in admiralty claims.
63 7 F. Cas. 418, 1997 AMC 550 (C.C.D. Mass. 1815) (No. 3,776) (discussed in Origins, supra note
I, at 152-53 & 154-55).
64Critique, supra note 3, at 399.
65Id.
66Origins, supra note I, at 152 (quoting Justice Story's opinion in De Lovio). Accord Gilmore &
Black, supra note 12, at 21, and Schoenbaum, supra note 12, at 57.
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evidence. 67 Based upon a number of general histories of piracy, he
conjectures that by the late 1720s piracy had become a relatively insignificant problem but that significant problems of piracy recurred in the first half
of the 19th century. Therefore he believes that piracy did not play a
significant role in the Founders' "thinking of admiralty."68 "Moreover," he
argues that, "the problem of piracy increased during the period of the
supposed paradigm shift."69 This latter argument is simply nonresponsive.
My original study hypothesized that as the century progressed American
lawyers came to view crimes at sea as not really involving admiralty
jurisdiction. His conjectures about piracy in the first part of the 19th century
contains not a whit of evidence about how American lawyers viewed piracy
and is utterly silent about the latter part of the century. In contrast to
Professor Gutoff's conjectures about what connection the Founders may
have seen between admiralty jurisdiction and crimes on the high seas, my
original study presented numerous examples of Founders who clearly
understood that crimes at sea were part of admiralty's necessary jurisdiction
and specific evidence that this perception had largely faded by the end of the
19th century.70
When Professor Gutoff turns to the issue of privateering,71 he again
refuses to grapple with my original study. Instead of addressing the
hypothesis that privateering was an important aspect of maritime war at the
beginning of the 19th century but had lapsed into desuetude by the end of
the century,72 he concentrates upon the federal courts' adjudication of prizes
taken in the 19th century by the Regular Navy. If the Regular Navy cases
were relevant, they would lend support to the hypothesis of a 19th century
paradigm shift. Professor Gutoff implicitly concedes that with the exception
of a few holdover cases from the Spanish-American War at the end of the
19th century, the present century is utterly devoid of significant prize
litigation. 73 If prize jurisdiction was significant at the end of the 18th century
but has become insignificant in the 20th century, and the change did not take
place in the 19th century, one wonders when the change took place.
In any event, the Regular Navy cases that Professor Gutoff cites are
67He does not mention the point made in my original study that the 19th century witnessed a small
but significant decline of import duties as a fraction of the federal government's revenue. See Origins,
supra note I, at 151 n.179.
68Critique, supra note 3, at 401.
691d.
70See supra note 33; Origins, supra note I, at 151 n.I77, 153 n.189.
71See Critique, supra note 3, at 401-03.
720rigins, supra note I, at 151-52.
73Critique, supra note 3, at 403. In 1899, an embarrassing squabble between an admiral and a
commodore influenced Congress to abolish prize money even for naval officers. See Langley, Windfalls
of War, 12 Naval Hist. 27 (MaylJune 1998).
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irrelevant. My original study carefully explained that the Founders were
especially concerned about privateering. The Founders saw a pressing need
for national admiralty courts in order to provide an effective method for
compensating privateers and to regulate privateers' notorious tendency to
overreach their actual authority.74 In the case of seizures by the Regular
Navy, neither concern was relevant. The government paid the officers and
crew a salary and assumed complete financial responsibility for all other
operating expenses and the enormous capital costs of building and arming
naval vessels. Similarly, regular naval officers were subject to military
discipline and chains of command and therefore were not prone to the
notorious overreaching of privateers. 75
In short, Professor Gutoff consistently fails to confront the extensive
historical evidence presented in my original study. Instead, he resorts to
anachronistic conjectures about the Founding Generation for which there is
no relevant evidentiary support and which are quite inconsistent with
specific evidence presented in my original study.76
VI
CONCLUSION
Before closing the present response, a further consideration of Peter Du
Ponceau's essay is warranted. The essay is particularly valuable because Du
740rigins, supra note I, at 124-25.
75Clearly no one believes, to use Justice Paterson's words, that naval officers are "[a)ctivated by a
predatory spirit [and) perpetrate outrages, that shock the moral sense, and disgrace the human character."
Id. at 124 (quoting Paterson).
7&rhe foregoing response to Professor Gutoff does not exhaust the lacunae in his analysis of 18th
century admiralty law. For example, he states that the "federal system of admiralty courts in the Dutch
Republic [gave the Founders an example of] maritime courts [that) heard all manner of civil disputes."
See Critique, supra note 3, at 376. If the issue is what lessons the Founders drew from the Dutch model,
the best evidence is James Madison's understanding that the Dutch Republic's federal admiralty courts
had "final conuzance of all crimes & prizes at sea [and) of all frauds in customs." Origins, supra note I,
at 139 n.114 (quoting Madison). In other words, Madison viewed the Dutch federal admiralty courts as
exemplifying the public-litigation paradigm. Professor Gutoffs analysis of the Dutch admiralty makes no
mention of Madison's thoughts on the subject.
Similarly, Professor Gutoff states that after the federal judicial system was formed, "litigants started
to bring all sorts of private law claims in the federal district courts." Critique, supra note 3, at 384. In the
supporting footnote he relies upon a valuable analysis of admiralty litigation in Maryland for the
proposition that "[n)early two-thirds of the claims brought in the district of Maryland were private law
claims." Id. n.lOl (citing Owen, Earliest Activities as a Court of Admiralty, 50 Md. L. Rev. 45, 47
(1991». Owen's study, however, does not say that "all sorts of private law claims" were being filed in
Maryland's new federal admiralty court. To the contrary, Owen states (on the page cited by Professor
Gutof!) that "[a)bout two-thirds of the admiralty actions were suits by seamen for unpaid wages." 50 Md.
L. Rev. at 47. The distinction between mariners' wages and all other sorts of private law claims is a key
aspect of my original study's discussion of public and private litigation, and Owen's article was cited in
support of this distinction. See Origins, supra note I, at 150 n.174 (citing Owen).
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Ponceau understood the tremendous potential of federal admiralty courts to
provide a general forum for the adjudication of most private disputes related
to maritime commerce. Depending upon whether an expansive or restrictive
approach to jurisdiction were adopted, he believed there would be "great
advantage or detriment to the Commerce of this Country."77 Du Ponceau had
an expansive vision of admiralty jurisdiction, but he was quite familiar with
the crabbed English tradition. His essay explains how the expansive vision
and the narrow English tradition could coexist under the new Constitution.
Du Ponceau 's crucial insight was that under the Constitution the issue of
federal admiralty jurisdiction is a function of legislative rather than constitutionallaw. He believed that Congress, in drafting "the judicial Bill, [could]
greatly extend or restrict the [admiralty] Jurisdiction of the United State."
His analysis supports my original study's conclusion that the Constitution's
Admiralty Clause should be construed as permitting the radical transformation in the 19th century of federal admiralty courts into general forums for
the adjudication of private maritime disputes. 78
Du Ponceau explained that the Constitution's provision for admiralty
jurisdiction is ambiguous: "By the 2nd Section of the 3rd Article of the
Constitution of the United States, it is provided that the judicial power of the
Union shall extend to all cases of Admiralty & maritime Jurisdiction, but
how far that Jurisdiction is to extend, it [the Constitution] has not
particularly pointed out." In particular, Du Ponceau noted that there were
two possible interpretations. Admiralty jurisdiction could be "restored to its
ancient & natural bounds," or the jurisdiction could be "limited & restricted"
by the English tradition.
Du Ponceau believed that the solution to this problem should be "gathered
from a view of the whole System of the Constitution," and he advanced
federalism arguments in support of the expansive view. Under the expansive
approach to admiralty jurisdiction, "America may become possessed of a
general & uniform System of Maritime Laws." Later in the essay he
elaborated upon this idea. He believed that in an ideal world rules of decision
applicable to commercial disputes should be determined on a functional
basis rather than as a result of arbitrary rules of jurisdiction. He objected to
"subjecting two contracts of the same nature ... to two different Jurisdictions." Instead, "those contracts being of the same nature the same Rule of
course ought to govern them." When "the cognizance of causes of the same
nature [is] divided between different independent Tribunals, it prevents that
77Unless otherwise noted, all quotations in this concluding section are from Du Ponceau's essay. See
infra at Appendix.
780rigins, supra note I, at 154-56.
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uniformity of decisions which is so necessary to the equal distribution of
justice."
Du Ponceau' s favorite example of a jurisdictional rule that prevented the
equal distribution of justice was the rule giving common law courts
exclusive jurisdiction over contracts under seal. He believed "[i]t is
substance & not form that make the only Solid distinctions, & if this
principle is once lost sight of, the law must be forever involved in a maze of
endless perplexity."
Du Ponceau also believed that adopting the narrow English tradition
would invite "an eternal clashing of Jurisdictions & a perpetual War of
Prohibitions between the Federal Courts & those established under the
Government of the particular states." In addition to his pure federalism
concern, Du Ponceau worried that a continuation of the English jurisdictional rules would be "productive of an infinity of pleas in abatement or
Exceptions declinatory [i.e., jurisdictional motions] which would give an
infinity of trouble to the suitors." Of course, an expansive rule of admiralty
jurisdiction would preempt most jurisdictional challenges.
Du Ponceau's apparent understanding of the Constitution rings true at the
start of the 21st century. The idea that a constitutional provision for subject
matter jurisdiction should be construed broadly is common place-as is the
related understanding that Congress is empowered to restrict the federal
courts' potentially broad jurisdiction. But Du Ponceau's analysis of uniformity of decision seems a bit out of tune. His idea that uniformity of decision
may be accomplished by construing admiralty jurisdiction broadly and
placing all maritime litigation in the same court is undoubtedly true, but he
fails to address the impact of concurrent state jurisdiction upon uniformity.
The reason for this puzzling failure may well be that Du Ponceau did not
believe that there would be significant concurrent state jurisdiction. He
surely believed-like all of his fellow Founders-that the scope of exclusive
admiralty jurisdiction should be gauged by the nature of the underlying
dispute. Under this predominant understanding, an expansion of admiralty
jurisdiction could be viewed as constricting common law jurisdiction. 79
79After Justice Story in effect commenced the implementation of Du Ponceau' s vision of expansive
admiralty jurisdiction, Justice Johnson strenuously objected because he anticipated a constriction of state
counjurisdiction. Justice Johnson explained, "the subject becomes the more serious when it is recollected
that Admiralty and maritime causes are exclusively delegated to the government of the United States. The
next step, therefore, will be a denial of the jurisdiction of the State Courts over such cases altogether."
The Amanda, unreported (C.C.D.S.C. 1822), discussed and quoted in G. White, The Marshall Court and
Cultural Change 464-67 (1988). Of course, this problem was avoided when the Supreme Court later
ordained that the in personam/in rem dichotomy should be used to construe the saving to suitors clause.
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APPENDIX
PETER STEPHEN DU PONCEAU, "THE BILL FOR THE ORGANIZAnON
OF THE JUDICIAL DEPARTMENT" [c. 1789]
The Bill for the organization of the Judicial Departn,ent being now before
Congress, the Admiralty Jurisdiction seems to be a most important object in its
discussion.
The manner in which this Department will be considered in the Judicial Bill, will
greatly extend or restrict the Jurisdiction of the United States, & will be of great
advantage or detriment to the Commerce of this Country.
By the 2nd Section of the 3rd Article of the Constitution of the United States, it
is provided that the judicial power of the Union shall extend to all cases of Admiralty
& maritime Jurisdiction, but how far that Jurisdiction is to extend, it has not
particularly pointed out. It is a point yet to be decided & gathered from a view of
the whole System of the Constitution, whether the Admiralty Jurisdiction is to be
restored to its ancient & natural bounds, or whether it is to be limited & restricted
by those Statutes which the jealousy of the common Lawyers on the one hand, & the
encroachments of the Civilians on the other hand brought into existence. In the first
case America may become possessed of a general & uniform System of Maritime
Laws, in the second partial Laws only can be enacted which will reach no further
than a particular description of persons & will become the source of an eternal
clashing of Jurisdictions & a perpetual War of Prohibitions between the Federal
Courts & those established under the Government of the particular States.
In order to develope this idea it is necessary to enter into some considerations
upon the general subject, & enquire with some degree of particularity into the nature
of the Jurisdiction we are treating of, considered in itself & without relation to the
Ordinances of any particular Country, to trace its establishment in England as far as
possible to its source & mark its progress in the country from whence we have
adopted our System of Laws to the present time, from this investigation we conceive
great assistance may be obtained in finding out the true Spirit of our Constitution on
the subject, which ought to be our guide in so important a disquisition.
Were the whole System of existing Laws to be overthrown, & new boundaries to
be fixed between the several Jurisdictions of the Judicial Department, the nature of
the questions to be brought before each Court, would probably be the proper ground
on which to fix the boundaries of their respective Jurisdictions. The Law of Nations
& the municipal Law, each of which might be subdivided into Civil & Criminal
would possibly constitute the first & most general division. The Law of Nations
might then admit of a second subdivision, to whit, into the federal Law of Nations,
whose province should be to regulate peace & War and enforce the performance of
treaties, & the Commercial Law which descending from Sovereigns to individuals
but yet extending Justice beyond the limits of its own territory should compel the
execution of Commercial Contracts. And this last might still be subdivided into
territorial & maritime, Bills of Exchange, Negotiable Notes, Mercantile Accounts
Bankruptcies &c. should be the natural object of the former & contracts purely
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maritime of the latter Subdivision. Each of these branches should naturally form the
object of a Separate Jurisdiction, tho' the cognizance of matters relating to two or
more of them might be vested in one & the same Court. But the Legislator would
beware of creating such artificial divisions as would rather tend to confound
Jurisdictions than to fix them, by establishing them on the locality or the personality
of actions, as for instance by subjecting two Contracts of the same nature, but
entered into in different places or by different persons, as for instance two Bonds
made the one at Sea & the other at Land or the one by Peter & the other by Paul to
two different Jurisdictions because those Contracts being of the same nature the
same Rule of course ought to govern them. It is true that Contracts made into foreign
Countries are sometimes to be regulated or explained by the Lex Loci, but this does
not militate against the Rule here laid down, because otherwise there ought to be as
many different Jurisdictions as there are Countries in the World where Contracts
may originate, & also because it is to be supposed that a Judge whose Jurisdiction
is limited to questions of a particular nature has at least a general acquaintance with
the regulations of other Countries on the same subject, whereas a Judge who should
be confined to controversies arising abroad, which might be of as many different
Natures as there are objects of Controversy among Men, it would be impossible for
him in the course of a whole life, to become Master of the Laws of all Countries
upon every subject and lastly the question of the Lex Loci is in most instances so
clearly interwoven with the Merits of the action, that deciding upon the point of
Jurisdiction would be determining the cause itself-nor are the causes of particular
descriptions of persons proper or convenient grounds on which to fix a Jurisdiction,
because it is not always possible to ascertain before an action is instituted whether
a party comes within that particular description which subjects him to this or that
particular Tribunal, & this may be productive of an infinity of pleas in abatement or
Exceptions declinatory which may give an infinity of trouble to the suitors, & in
both cases, whether Jurisdictions are founded on the locality or personality of the
actions or contracts the cognizance of causes of the same nature being divided
between different independent Tribunals, it prevents that uniformity of decisions
which is so necessary to the equal distribution of Justice. Upon these circumstances
& others not as important which do not come within the present plan that Article of
the Constitution of the United States which gives cognizance by the Judicial power
of the Union of controversies arising between foreigners & Citizens & between
Citizens of different States, may appear inconvenient, & perhaps the Jurisdiction of
the federal Courts might have been more conveniently regulated by attending to the
nature of the causes which were thought proper to be brought before them, but it is
also probable that this matter has been fully & maturely considered by the
Convention, & that they have had sufficient reasons to settle this point as they have
done, considering that many parts of the System are the result of accommodation,
& that care was to be taken not to create jealousies which however that they might
fall on improper objects, yet might have been productive of disagreeable consequences. Neither does this point come within the design of this present investigation
otherwise than as an illustration of the general Doctrine of Jurisdictions which we
have thought necessary to lay down as a material ground of this inquiry.
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It should be further observed that the mere fom! of Contracts, is of all objects the
most improper to create a difference of Jurisdiction. Thus giving to one Court the
cognizance of a simple Contract without Seal, and to another that of the very same
Contract with this only difference that it has a Seal annexed to it, is absurd and
without any foundation in reason. It is Substance & not form that make the only
Solid distinctions, & if this principle is once lost sight of, the law must be forever
involved in a maze of endless perplexity.
These principles being established, the Law which now obtains in England
respecting the Courts of Admiralty, can only be accounted for from the spirit and
history of the times that gave rise to it and not upon any principles of reason or
general Jurisprudence. In fact the Admiralty Tribunal, which has lately obtained the
name of the instance Court, if we consider it as restricted by the Statutes of Richard
II has no authority at all but what it has since usurped. For as those Statutes have
been construed by Lord Coke & the most eminent common Lawyers, the Admiralty
has no cognizance of any civil matters but of contracts made at Sea to be executed
at Sea, which in fact seems to amount to an impossibility, or a thing which must
happen very rarely indeed. If a Contract is made at Sea to be executed at Land, or
at Land to be executed at Sea, it becomes a matter of Common Law Jurisdiction.
The Admiral, says Lord Coke is like unto Neptune, & has no dominion but over the
Sea. This observation was perhaps admired at a time when quaint sayings but too
often supplied the place of reason & common sense but it would hardly pass at
present for an argument.
Of later times the Cognizance of Mariner's Wages, foreign Bottomries in some
cases & a few more trifling objects have been from the necessity of the thing
introduced into the Admiralty Court & winked upon by the Courts of Common Law,
but the matter has rested there, the Admiralty has still been excluded from its
Jurisdiction over other Maritime Contracts, & has been denied cognizance of any
Contract whatever when under Seal. The Law books teem with Cases of Prohibitions granted or denied to the Admiralty Courts, cases often contradictory, & in
general founded on no solid principles, & of all parts of the Law, this particular
Jurisprudence is fraught with the greatest uncertainty.
HeinOnline -- 31 J. Mar. L. & Com. 164 2000