The Origins of Federal
Admiralty Jurisdiction in an
Age of Privateers,
Smugglers, and Pirates
by WILLIAM R.
CASTO*
I. INTRODUCTION
We cannot know the early Republic as the Founding Generation
knew it. Two hundred years of societal change--even upheaval-separate
us. Nevertheless any study of the creation of the Republic should strive
toward this unattainable objective. The purpose of this essay is to provide
-a'klimpse of a world of admiralty litigation quite foreign to the late twentieth.century experience. In this forgotten world there was a clear consensus.. on the need to create federal admiralty courts,l and we may assume
that the Foupding Generation understood this collectively felt need. But
two hundred years later, we remember only the consensus.2 The reasons
underlying the original agreement on admiralty jurisdiction have been
lost. Leading admiralty scholars lament "the almost total lack of light on
the genesis of [the Constitution's admiralty] c1ause."3 Nevertheless abundant evidence of the origins of federal admiralty jurisdiction lies hidden in
plain sight.
The problem is that our vision of eighteenth century admiralty jurisdiction has been obscured by a paradigm of litigation that did not exist or
had a significantly attenuated influence two hundred years ago. Today
every proctor and admiralty scholar knows that the federal courts' maritime jurisdiction is dedicated to the resolution of private disputes. 4 This
modem paradigm is so deeply imbedded in our consciousness that we are
*Professor of Law, Texas Tech University School of law. I would like to thank Henry
Bourguignon, Wythe Holt, and Maeva Marcus for their comments and suggestions regarding
this essay.
\. See infra note 102 and accompanying text.
2. See, e.g., T. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 18 (1987)
[hereinafter cited SCHOENBAUM'S ADMIRALTY]; P. BATOR, D. MELTZER, P.
MISHKIN, & D. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND
THE FEDERAL SYSTEM 14 (3d ed. 1988) [hereinafter cited HART & WECHSLER 3d].
3. G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY 18 n.52 (2d ed. 1975)
[hereinafter cited GILMORE & BLACK 2d]. Accord, SCHOENBAUM'S ADMIRALTY at
17-18.
4. For example, the authors of a leading treatise on Admiralty Law briefly note the existence of prize and criminal jurisdiction but immediately explain that "ordinary civil cases
...will be our exclusive concern." GILMORE & BLACK 2d at 44.
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inclined to assume without reflection that eighteenth century Americans
thought the same way. For example, the authors of a leading and highly
regarded book on federal courts label admiralty litigation under the
J.udiciary Act of 17895 as "Private Civil Litigation."6
There is no evidence, however, that the Founding Generation
thought of maritime litigation primarily in terms of private civil litigation.
Eighteenth century Americans understood that admiralty courts adjudicated private claims, but this understanding was irrelevant to their decision
to move maritime litigation from the existing state admiralty courts to
national or federal admiralty courts. Surviving documentary evidence
indicates quite clearly that the admiralty clause was placed in the
Constitution and the federal admiralty courts were subsequently created to
assure complete federal jurisdiction over three specific categories of litigation: prize cases,7 criminal prosecutions, and cases arising under federal revenue laws. The evidence further indicates that the Founding
Generation was unconcerned about the need for a national-as opposed to
state-admiralty jurisdiction over private civil litigation.
In other words the Founding Generation's paradigm of federal admiralty jurisdiction was neither private nor entirely civil. This forgotten paradigm was entirely a function of maritime cases that implicated a direct
sovereign interest of the United States-cases involving the regulation of
maritime warfare, the collection of revenue, and the prosecution of criminals. Therefore the Founding Generation's paradigm of federal admiralty
jurisdiction is best described as public-not private-litigation.
II. THE EIGHTEENTH CENTURY CONSENSUS
An invaluable key to deciphering the Founding Generation's insistence upon the need for federal (rather than state) admiralty courts is
found in the thoughts of Edmund Randolph, an influential political leader
in the early Republic. Randolph is an obscure person to twentieth century
Americans. 8 But he was well-regarded in the late eighteenth century when
the federal admiralty courts were created.
At the Constitutional Convention in Philadelphia, Randolph was the
5. The Judiciary Act of 1789, c. 20, I Stat. 73 (1789) [hereinafter cited Judiciary Act].
The best general studies of the first Judiciary Act are Holt, "To Establish Justice: Politics.
the Judiciary Act of 1789. and the Invention of the Federal Courts. 1989 DUKE LJ. 1421
(1989) [hereinafter cited Holt's Study] and Warren. New Light on the History of the Federal
Judiciary Act of 1789,37 HARV. L. REV. 49 (1923).
6. HART & WECHSLER 3d at 32.
7. For a brief discussion of this sui generis class of litigation, see infra notes 41-43 and
accompanying text.
8. The standard life of Randolph is J. REARDON, EDMUND RANDOLPH (1975). For
an excellent unpublished Ph.D. dissertation covering Randolph's life before his service in
the federal government, see C. HOBSON, THE EARLY CAREER OF EDMUND RANDOLPH, 1753-1789 (Emory Univ. 1971).
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leader of the influential Virginia delegation. 9 In addition to being
Governor of Virginia, he had previous experience with admiralty matters lO and had drafted the Continental Congress's substantive rules for
prize litigation)1 Randolph presented the influential Virginia Plan to the
Convention,12 and he served on the five-person Committee of Detail that
drafted the Constitution's admiralty clause. 13 When the new federal government was formed in 1789, President Washington selected Randolph as
the first Attorney General of the United Statt<s and subsequently elevated
him to Secretary of State.
A. Randolph's Report
In 1790 the House of Representatives asked Attorney General
Randolph l4 to study the recently created federal judicial system and report
his conclusions. Although no admiralty scholar has ever considered
Randolph's study, his Report l5 includes the clearest and most detailed
eighteenth century explanation of the need for a national admiralty jurisdiction. Therefore his analysis provides an excellent introduction to the
origins of federal admiralty jurisdiction and should be considered out of
chronological order.
Randolph's thesis was that "[t]he nature [of admiralty litigation]
shuts out the jurisdiction of the State courts, as such, on the vital principles of the Union."16 He began by noting that the constitutional language,
9. See id at 251-56.
10. He had served briefly as a judge on Virginia's state admiralty court and on the national admiralty court under the Articles of Confederation. See id at 75-76. In addition, "[a]s a
lawyer and attorney general [of Virginia], he had participated in numerous cases before the
Virginia court of admiralty." id at 76. See also Letter from Edmund Randolph to Thomas
Jefferson (Nov. 13,1779), reprinted in, 3 THE PAPERS OF THOMAS JEFFERSON 184 (J.
Boyd ed. 1951) (advising the Governor that the Articles of Confederation pre-empted the
Virginia courts' jurisdiction over crimes on the high seas).
11. See C. HOBSON, THE EARLY CAREER OF EDMUND RANDOLPH, 1753-1789, at
76-78 (unpublished Ph.D. dissertation Emory Univ. 1971).
12. See Letter from James Madison to John Tyler (1833), reprinted in. 3 M. FARRAND,
THE RECORD OF THE FEDERAL CONVENTION OF 1787, at 525 (rev. ed. 1937) [hereinafter cited FARRAND'S RECORDS].
13. See 2 FARRAND'S RECORDS at 97.
14. H.R. Res., 1st Cong., 2d Sess. (Aug. 5,1790), reprinted in 3 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA 550 (L. De Pauw, C. Bickford & L. Hauptman eds. 1977) (the journal of the House of
Representatives) [hereinafter cited HOUSE JOURNAL].
15. H.R. Rep. 1st Cong., 3d Sess. (Dec. 31, 1790) [hereinafter cited RANDOLPH'S
REPORTJ, reprinted in 1 AM. STATE PAPERS: MISCELLANEOUS 21 (W. Lowrie &
w. Franklin eds. 1834). For more general discussions of Randolph's Report, see Casto, The
First Congress's Understanding of It' s Authority Over the Federal Courts' Jurisdiction, 26
B.C.L. REV. 1101, 1120-22 (1985); Holt, "Federal Courts as the Asylum to Federal
Interests:" Randolph's Report, The Benson Amendment, and the "Original Understanding"
ofthe Federal Judiciary, 36 BUFFALO L. REV. 341 (1988).
16. RANDOLPH'S REPORT at 22.
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"cases of admiralty and maritime jurisdiction," referred to "all causes arising wholly on the seas, and not within the precincts of any county, and to
condemn all lawful prizes in time of war."17 Aside from the quaint reference to prize cases and the apparent acceptance of a tidal limit to jurisdiction,18 Randolph's definition is superficially consistent with the modem
paradigm of private maritime litigation.
But Randolph went on to identify and discuss four specific categories of maritime disputes and their relative importance under the
Constitution. He presented them in the following order: 19
1. the "condemn[ation of] all lawful prizes in time of war"
2. "criminal sea law"
3. "offenses on water against the revenue laws"
4. "claims for specific satisfaction on the body of a vessel, as for
mariners' wages, &c."
This list verges on incoherence to a modem admiralty scholar. The first
three categories are irrelevant to twentieth century admiralty practice. The
fourth category, however, is a reassuring and obvious reference to our
modem paradigm of private civil litigation.
Randolph's list becomes quite incoherent when we realize that he
presented his four categories in the order of their importance. Prize cases
and criminal prosecutions were considered in subsections (a) and (b) of
his discussion, and he devoted 19 lines to his explanation of their importance. He then wrote subsection (c) in which he noted that the specific
categories of revenue cases and private disputes are "[t]wo other categories of cases [that] have been added to the admiralty and maritime
courts."20 These two other categories were allocated only six lines in his
Report.
The manner in which Randolph physically structured and subdivided
his Report does not prove an intent to rank order the relative importance
of the categories of cases that he discussed. But his actual discussion of
the various categories indicates that at the very least he considered private
disputes as the least important type of admiralty litigation. He thought that
prize cases and criminal prosecutions "of necessity" should be placed in
the exclusive jurisdiction of the national admiralty courts. In contrast
"neither [the enforcement of the revenue laws nor the resolution of private
17. ld.
18. In England admiralty jurisdiction did not extend to activities within the body of a
county. See 2 A. BROWN, A COMPENDIOUS VIEW OF THE CIVIL LAW AND OF
THE LAW OF ADMIRALTY 91-94 (2d ed. 1802); I W. BLACKSTONE, COMMENTARIES *107. American admiralty lawyers of the late eighteenth century were quite familiar with this limitation. In addition to Randolph's Report, see COMMON PLACE BOOK
OF GUNNING BEDFORD JR (Delaware Hist. Soc.) (U.S.DJ. for Delaware 1789-1812);
Richard Harison, Draft Opinion (1802), reprinted in 2 THE LAW PRACTICE OF
ALEXANDER HAMILTON 854-7 (J. Goebel ed. 1969).This limitation, however, eventually was rejected by American courts. See infra notes 185-86 and accompanying text.
19. RANDOLPH'S REPORT at 22.
20.ld.
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maritime disputes] is of necessity appropriated to the admiralty."21 He
assumed, however, that "Congress... will doubtless deposit [revenue
cases] in their own tribunals, and most probably in the admiralty."22 As to
private disputes, Randolph was quite indifferent. As far as he was concerned, a federal forum for the resolution of private maritime disputes was
not needed because "in [these cases], the State Legislature may establish a
jurisdiction reaching the vessel itself."23
In addition to rank ordering the relative need for extending the federal admiralty jurisdiction to the various categories of maritime litigation,
Randolph explained why admiralty jurisdiction over prize cases and criminal prosecutions had to be vested in federal courts to the exclusion of
state courts. "The open sea," he explained, "is a great highway to all
mankind, [and] every nation ranks the cognisance of causes wholly arising there among the attributes of independence."24 The individual states
therefore necessarily exercised an admiralty jurisdiction before entering
the Union. But by joining "the federal compact, each State [now] has
resigned [its admiralty jurisdiction] to the Federal Government."25
Randolph did not limit himself to this theoretical analysis of state
sovereignty. He went on to discuss specific pragmatic reasons for vesting
the federal courts with exclusive jurisdiction over prize cases and crimes
on the high seas. He noted that under the Constitution the national security powers of "remonstrance, marque, reprisal, and war"26 are committed
to the federal government. Therefore "that government oJ:lly ... can protect
the citizens of the United States from hostilities, in their daily intercourse
with rival adventurers on ["the open sea"]."27 In addition, Randolph was
concerned that "a concurrence of jurisdiction [in state and federal courts]
might either involve the confederacy in war, contrary to its will, or subject
it to a grievous reparation of some injury."28 Finally, because Congress
had authority to legislate "criminal sea law"29 and "rules concerning captures on water,"30 enforcement of these positive federal laws should be
entrusted to federal courts.
21. [d.
22. [d. This was a common assumption. See, e.g., Letter from David Sewall to Caleb
Strong (Mar. 28, 1789), discussed in Appendix, infra; Letter from Richard Law to Oliver
Ellsworth (July 14, 1789), discussed in infra note 164 and accompanying text.
23. RANDOLPH'S REPORT at 22.
24. [d.
25. [d. This same analysis appears in Randolph's
Virginia cited in note 10, supra.
1779
letter to Governor Jefferson of
26. [d. RANDOLPH'S REPORT at 22.
27. [d.
28. Id.
29. [d. See U.S. Const. Art. I, § 8, cl. 10.
30. RANDOLPH'S REPORT at 22, quoting U.S. CONST. Art. I, § 8, cl. II. Randolph
also noted that a federal admiralty jurisdiction was appropriate due to "the power of
Congress [inter alia] to regulate commerce." RANDOLPH'S REPORT at 22. He probably
had in mind revenue and navigation acts. See infra appendix.
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Randolph did not state why he was indifferent to private "claims for
specific satisfaction on the body of a vessel."31 But he did provide a hint
when he used claims for "mariners' wages"32 as the prototypical private
in rem claim. As he specifically noted, prize cases and the criminal sea
law were directly pertinent to the protection of American citizens from
hostilities and at the same time might give rise to a war or subject the
country to a grievous reparation. In comparison, the national interest in
mariners' wages is insignificant.
.
Randolph's Report suggests a vision of federal admiralty jurisdiction
foreign to twentieth century eyes. In the present century, the most important difference between the litigation of maritime claims in state and federal courts is the exclusive availability of in rem remedies in federal court.
But Randolph did not view this technical procedural distinction as significant. When he looked at admiralty cases, he looked at the substance of the
underlying dispute rather than the nature of the remedy. He was indifferent to remedies and was quite comfortable with leaving private maritime
disputes to a "jurisdiction [in state court] reaching the vessel itself."33
In addition to discussing admiralty litigation in terms of the underlying dispute rather than the remedy sought, Randolph clearly viewed some
types of maritime disputes as more important than others. Insofar as there
was a need for national-in contrast to state-courts to try maritime disputes, he emphasized prize cases and criminal prosecutions as by far the
most important categories of litigation. Randolph also specifically thought
that revenue cases were an important subset of admiralty litigation. In
stark contrast to twentieth century preconceptions, Randolph had an
essentially public law paradigm of admiralty litigation. He even indicated
that there was little or no national interest in providing a federal forum for
the trial of private in rem claims.
B. Testing Randolph's Vision
Was Randolph's Report an accurate explanation of the national
admiralty consensus or just a sport? Surely his stature as Attorney General
and his prior experience as an admiralty judge suggest that he was well
qualified to assess the national interest in creating admiralty courts. In
addition Randolph's public law paradigm of admiralty litigation is consistent with the dockets of eighteenth century North American admiralty
courts. At the time of Randolph's Report, Americans were familiar with
three different systems of admiralty courts. Before the Revolutionary
War, Great Britain had operated imperial vice-admiralty courts throughout the colonies,34 Subsequently, during the periods of the Revolution and
31.
RANDOLPH'S REPORT at 22.
32. Id.
33. Id.
34. See generally Andrews. Vice-Admiralty Courts in the Colonies. [hereinafter Andrew's
Vice-Admiralty Courts) in. RECORDS OF THE VICE-ADMIRALTY COURT OF RHODE
ISLAND 1716-1752. at 1-79 (D. Towle ed. 1936); C. UBBELOHDE. THE VICE-ADMIRALTY COURTS AND THE AMERICAN REVOLUTION (1960).
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the Confederacy, most states had their own admiralty courts.35 Finally,
under the Articles of Confederation, the Continental Congress created a
national court of limited admiralty jurisdiction.36
1. The Vice-Admiralty Courts
During the Revolutionary War, Anthony Stokes, His Majesty's former Chief Justice of Georgia, penned an extensive description of practice
and procedure in the pre-war vice-admiralty courts in North America)7
Like Randolph, Stokes categorized admiralty litigation on the basis of the
underlying dispute: 38
1. a general category encompassing "all Maritime Causes."
2. "the trial of Prizes taken in time of war, or hostilities."
3. "forfeitures and penalties incurred by the breach of any Act of
Parliament relating to the trade and revenues of the British Colonies
in America."
With some superficial differences, this list tracks Randolph's.
Stokes did not include criminal prosecutions because the vice-admiralty courts lacked jurisdiction over crimes. Before the Revolution, piracy
and other crimes on the high seas were tried by specially convened courts
of admiralty in the colonies or sent to England for trial in the High Court
of Admiralty'S Court of Oyer and Terminer)9 By "all Maritime Causes,"
Stokes apparently meant private maritime disputes. When he treated this
general category in more detail, he devoted his attention entirely to a
claim for mariners' wages. 40 Stokes did not directly rank order the relative importance of his three categories. But he devoted less than three
pages to private disputes, fifteen pages to revenue cases, and eighty-two
pages to prize cases.
Prize cases have long since lapsed into desuetude,41 but they were
quite important in the eighteenth century. These sui generis actions may
have accounted for more than a third of the admiralty litigation in North
America during the wars from 1702 to 1763. 42 In cases of capture, priva35. See generally D. ROBERTSON, ADMIRALTY AND FEDERALISM
95-104
(1970).
36. See generally H. BOURGUIGNON, THE FIRST FEDERAL COURT: THE FEDERAL APPELLATE PRIZE COURT OF THE AMERICAN REVOLUTION 1775-1787
(1977).
37. A. STOKES, A VIEW OF THE CONSTITUTION OF THE BRITISH COLONIES,
IN NORTH-AMERICA AND THE WEST INDIES, AT THE TIME THE CIVIL WAR
BROKE OUT ON THE CONTINENT OF AMERICA ch. XIII, at 270-371 (1783) [hereinafter cited STOKES' VIEW OF THE CONSTITUTION).
38. [d. at 270.
39. See 2 LEGAL PAPERS OF JOHN ADAMS 275-76 (L. Wroth & H. Zobel ed. 1965);
C. UBBELOHDE, THE VICE-ADMIRALTY COURTS AND THE AMERICAN REVOLUTION 17 n. 18 (1960).
40. [d. at 273-75.
41. See Knauth, Prize Law Reconsidered, 46 COLUM. L. REV. 69 (1946).
42. Andrew's Vice-Admiralty Courts at 41. Accord. ROBERTSON'S ADMIRALTY at 299.
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teers licensed by a warring country to capture vessels of an enemy country would obtain title to the seized property, shilil, and cargo, through judicial condemnation carried out by an admiralty court near the locale of the
capture. 43 This use of privateers to supplement regular naval forces had
obvious national security implications, and the use of admiralty courts to
administer prize law had a direct impact upon privateers' contributions to
national security.
An effective system of prize courts encouraged privateering by providing an efficient and lawful procedure for converting captures into economic gain. In 1779, James Wilson and others urged the creation of efficient prize courts to encourage privateering against Great Britain. "In the
privateering trade in particular," they noted, "the very life of which consists in the adventurers receiving the rewards of their success and bravery
as soon as the cruize is over, the least delay is uncommonly destructive."44
This concern to encourage adventurers to go a privateering suggests
a very real and ugly ambivalence in the privateering trade. Privateers significantly enhanced a nation's capacity to wage maritime war, but they
were motivated by personal greed rather than by military duty and patriotism. Although a nation was responsible for the actions of its licensed
adventurers, the adventurers were not part of the formal naval establishment and not subject to naval discipline and chains of command. The fact
was notorious that privateers in their striving for personal gain had a tendency to exceed their authority and occasionally dabble in outright piracy.
William Paterson, who played a central role in creating the federal
admiralty courts was quite frank in his disdain for privateering. In an
unpublished judicial opinion, he bluntly wrote
privateering ought to receive no encouragement; it is a sort of licensed
depredation; and it is to be wished, that it could be utterly abolished. Activated
by a predatory spirit, how often do privateers perpetrate outrages, that shock the
moral sense. and disgrace the human character. No guard that tends to insure
their good behavior ought to be recouped; indeed every restriction ought to laid
upon them. They must be watched with the utmost vigilance and managed with
the strictist hand. 4 5
43. For a contemporary account of the Law of Capture in the imperial vice-admiralty
courts, see STOKE'S VIEW OF THE CONSTITUTION at 270-373. For quite detailed
expositions of American prize law written by Justice Story, see On the Practice in Prize
Courts, in, 14 U.S. (I Wheat.) App. NOTE II, at 494-506 (1816); Additional Note on the
Principles and Practice in Prize Causes, in, 15 U.S. (2 Wheat.) App. NOTE I, at 1080
(1817). For Justice Story's authorship, see Story, Memorandum (June 12, 1819), reprinted
inl LIFE AND LETTERS OF JOSEPH STORY 283 (W. Story ed. 1851).
44. Jameson, The Predecessor oj the Supreme Court, in, ESSAYS ON THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, 25-26 (J. Jameson ed. 1889) (quoting the
petition).
45. Unpublished Opinion of Justice Paterson, at 7 (1796) (William Paterson Papers,
William Paterson College), prepared jar Del Gol v. Arnold, 3 U.S. (3 Dall.) 333 (1796).
Accord, Findlay v. The William, 9 F. Cas. 57, 59 (D. Pa 1793) (Peters, J.) (No. 4790)
Paterson continued, "One of the most powerful means to attain this salutary end consists in
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In other words, prize courts served a dual purpose. In addition to encouraging the privateering trade, the courts were expected to regulate the
adventurers and to remedy their abuses.
Perhaps the most notorious function of the vice-admiralty courts was
to enforce imperial revenue laws concerning smuggling and illicit trading-the trade and navigation acts. 46 As Stokes noted, the vice-admiralty
courts also had jurisdiction over ordinary civil maritime cases.
The actual caseloads of the various vice-admiralty courts probably varied
form colony to colony. A careful and detailed study of the Massachusetts
Vice-Admiralty found that 54% of that court's caseload was devoted to
"Violations of Acts of Trade, etc."47 Insofar as ordinary private civil actions
were concerned, the Massachusetts study fully supports Randolph's and
Stoke's paradigmatic use of mariners' claims for wages. 48 Studies of the
records of the Vice-Admiralty in various other colonies are not as conclusive
but more or less support the civil trinity of prizes, revenue, and mariners'
wages.49 Again, criminal prosecutions were tried in specially created admiralty
courts instead of the vice-admiralty courts.
the responsibility of the owners for the acts of the captain and crew done under color of their
commission.... The principles of justice, the protection of property, the security and indemnity of sufferers, the prevention of plundering, common utility, and public good, all conspire
to the establishment of responsibility, and demand, that it should be carried to its utmost
extent." id.
46. See Andrew's Vice-Admiralty Courts at 42-59; ROBERTSON'S ADMIRALTY App.
D. This head of the vice-admiralty courts' jurisdiction was, of course, quite unpopular
among Americans. See Lovejoy, Rights Imply Equality: The Case Against Admiralty
Jurisdiction in America, 1764-1776, 16 WILLIAM & MARY Q. (3d seLl 459 (1959).
47. Wroth, The Massachusetts Vice Admiralty Court and the Federal Admiralty
Jurisdiction, 6 AM. LEGAL HIST. 250, 367 (1962) [hereinafter cited Wroth Study]. The
Massachusetts records included comparatively few prize cases, but the Study did not cover
the period of the Seven Years War from 1756-63. No records were available for the years
1748-1764 and after 1772. id. For an interesting treatment of John Adam's preRevolutionary War practice involving the vice-admiralty court's revenue jurisdiction, see 2
LEGAL PAPERS OF JOHN ADAMS 98-246 (Wroth & H. Zobel ed. 1965).
48. Acts of Trade cases predominated in Massachusetts, but claims for mariners' wages
far exceeded the combined total of all other maritime claims. Wroth Study at 367. Although
the common law courts were open to these simple contract claims, the mariners' remedy in
Admiralty "was easier, because they could join in the suit, and better, because the ship
would be answerable." Talbot v. the Commanders and Owners of three Brigs, I U.S. (I
Dall.) 95, 99 (Pa. 1784). Moreover the mariner's remedy in admiralty was much quicker
than at common law. The normal expectation was that a mariner's claim for wages would be
resolved by an admiralty court "between tide and tide, so as to enable them to go to sea
again immediately." See 2 A. BROWNE, A COMPENDIOUS VIEW OF THE CIVIL
LAW AND THE LAW OF THE ADMIRALTY 85 (2d ed. 1802).
49. At the beginning of the nineteenth century, Thomas Sergeant inspected the
Pennsylvania vice-admiralty records for the years 1735-46 and noted that they "consisted of
proceedings by the Collector by information against vessels and goods for breaches of the
acts of Parliament relating to the revenue: libels for seamen's wages; [cases of salvage]; and,
towards the end of the time, registers of letters of marque granted by the Governor, and prize
proceedings, against vessels captured from the French and Spaniards." Sergeant, A Brief
Sketch of the National Judiciary Powers Exercised in the United States (n.d.), in P. DU
PONCEAU, A DISSERTATION ON THE NATURE AND EXTENT OF THE JURISDICTION OF THE COURTS OF THE UNITED STATES 135,138 n.* (1824).
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2. State Admiralty Courts
When the imperial vice-admiralty courts were replaced by state
admiralty courts, the general nature of the admiralty caseload does not
seem to have changed. A very limited sample of maritime cases tried in
Pennsylvania suggests that as much as half of that state court's admiralty
workload was devoted to cases of capture and half of the remaining cases
were claims for mariners' wages. 50 Pennsylvanians also were quite familiar with "the common course of proceeding against a ship for breach of
Two reports of cases in the imperial Vice-Admiralty courts of Rhode Island and New
York provide evidence bearing on the pre-Revolutionary War vice-admiralty dockets. See
RECORDS OF THE VICE-ADMIRALTY COURT OF RHODE ISLAND 1716-1752 (D.
Towle ed. 1936) [hereinafter cited RHODE ISLAND VICE-ADMIRALTY RECORDS];
REPORTS OF CASES DECIDED IN THE VICE ADMIRALTY OF THE PROVINCE OF
NEW YORK AND IN THE COURT OF ADMIRALTY OF THE STATE OF NEW YORK
1715-1788 (C. Hough ed. 1925) [hereinafter cited HOUGH'S NEW YORK ADMIRALTY
REPORTS]. These two volumes, however, clearly do not even approach being a full account
of the courts' work for the periods covered. Therefore the few cases that are reported mayor
may not accurately represent the courts' actual caseloads.
The remaining records of the Rhode Island vice-admiralty are reported in RHODE
ISLAND VICE-ADMIRALTY RECORDS. Out of a pool of 147 reported cases, 41 %
involved privateers, 26% mariners' wagers, and only 6% related to the administration of
Acts of Trade etc. Of the remaining cases, 13% were miscellaneous civil claims ranging
from assault, to wrongful conversion of property, to Bottomry Bonds. 7% involved ministerial appraisals of property, 5% were cases of salvage, and 5% were unidentifiable. Thus from
this pool 73% of the cases involved privateers, mariners' wages, or revenue cases. Based
upon seventeenth century correspondence, the editor of the RECORDS suggested that the
paucity of customs cases may have been due to the fact that Rhode Island's Deputy
Collector was also one of its leading smugglers. id at 97.
HOUGH'S NEW YORK ADMIRALTY REPORTS provides some additional information. Out of a pool of 108 New York vice-admiralty cases. 56% involved privateers. 21 % the
Acts of Trade etc., but only 4% were claims for mariners' wages. The remaining causes
were scattered over various categories from salvage, to assault & battery, to a Bottomry
Bond. None of these miscellaneous categories constituted more that 4% of the pool.
Scattered records of sixty cases decided in 1729-1759 by the North Carolina ViceAdmiralty Court have survived. See Ubbelohde, The Vice-Admiralty Court of Royal North
Carolina 1729-1759, 31 N.C. HISTORICAL REV. 517, 524 (1954). 23 or 38% involved
violations of the Navigation Acts, 6 or 10% were prize cases, 8 or 13% involved a specific
and apparently political dispute over earlier condemnations (see id at 25). and 18 or 30%
involved private disputes. Of these 18 cases of private litigation, II or 61 % were claims for
mariners' wages.
The Surviving records of the Virginia Vice-Admiralty Court are too spotty to draw any
conclusions. See PROCEEDINGS OF THE COURT OF VICE-ADMIRALTY OF VIRGINIA 1698-1775 (G. Reese ed. 1983). Nevertheless the editor reports the existence of a
number of prize cases, illegal trading cases, and claims for mariners' wages during the years
1698-1700,1758, and 1770-1775.
50. JUDGMENTS IN THE ADMIRALTY OF PENNSYLVANIA, in, 3 THE MISCELLANEOUS ESSAYS AND OCCASIONAL WRITINGS OF FRANCIS HOPKINSON I215 (1792). See also, Talbot v. Commander and Owners of Three Brigs. I U.S. (I Dall.) 95,
100 (Pa. 1784) ("the case of wages [is] justly a favorite object of Admiralty Jurisdiction").
Like the twentieth century reports of New York and Rhode Island Vice admiralty cases, this
slim volume consisting of 49 Pennsylvania cases mayor may not be representative of the
court's case load. Nevertheless this selection of cases to be reported probably reflects in
some way the eighteenth century judge's contemporary judgment of the qualitative or quan-
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revenue laws."51 This typical eighteenth century profile of admiralty litigation in which public law cases predominated and claims for mariners'
wages were the most common private claim also appears in a brief study
of New York's state admiralty court. 52
Connecticut provides an extreme example of the eighteenth century's public law vision of admiralty.53 The jurisdiction of Connecticut's
admiralty courts was limited to cases involving privateers, trading with
the enemy, the exportation of embargoed goods, and the enforcement of
the state's import taxes. 54 Seventy percent of the cases filed were cases of
capture. 55 Connecticut's admiralty courts had no jurisdiction whatsoever
over the private maritime litigation that dominates the twentieth century
admiralty docket. When private maritime claims arose in Connecticut, the
parties evidently took their disputes to the common law courts. 56 This
titative importance of categories of admiralty litigation in his court.
51. The Address and Reasons of Dissent of the Minority of the Convention of the State of
Pennsylvania to their Constitutions (1787), reprinted in 15 RATIFICATION DOCUMENTS 13, 28. See also Letters of Centinel, Letter II (Oct. 27. 1787). reprinted in 13 RATIACATION DOCUMENTS 457. 461. There also had been an extensive revenue practice in
the Pennsylvania vice-admiralty courts. See supra note 49.
52. See HOUGH'S NEW YORK ADMIRALTY REPORTS. The most significant information provided by Judge Hough is a footnote in which he stated that he found records of
somewhat less than 100 cases in the state admiralty court and that more than half of the
cases were actions by the collector of the Port of New York to enforce state revenue laws. id
at 253 n. 1. Judge Hough only mentions seven specific cases spanning the years 1784-1788.
Four of the seven cases are suits for mariners' wages, one is an action to enforce state custom laws, one is a case of salvage, and the remaining case involved an insurance dispute.
53. The Connecticut experience is particularly interesting because Oliver Ellsworth, who
had great influence upon the creation of the federal admiralty courts, was a Connecticut
lawyer. At the Philadelphia Convention, he was a member of the Committee of detail that
drafted the Constitution's admiralty clause. Subsequently Ellsworth was the leading and
moving participant in the drafting and enactment of the Judiciary Act.
54. See A. TOKAY, MARITIME COURTS AND ADMIRALTY JURISDICTION IN
CONNECTICUT, 1776-1789, at pt. I, 1-16 (1975) (unpublished typescript in Connecticut
State Archives). The significant Connecticut Admiralty statutes were Act of May, 1776 15
THE PUBLIC RECORDS OF THE COLONY OF CONNECTICUT 281 (c. Hoadly ed.
1890) (cases of capture); An Act more effectually to prevent Illicit Trade (1778), I THE
PUBLIC RECORDS OF THE STATE OF CONNECTICUT 528 (c. Hoadly ed. 1894)
(trading with the enemy) [hereinafter cited CONN. STATE RECORDS]; An Act in Addition
to an Act entitled An Act to enable the Governor to lay an Embargo, and for rendering the
same when laid effectual (1779), 2 CONN. STATE RECORDS 267 (embargo); An Act in
further Addition to and in Alteration of the Act entitled An Act more effectually to prevent
Illicit Trade (1780), 3 CONN. STATE RECORDS 15 (trading with the enemy); An Act for
promoting Commerce (1781), 3 CONN. STATE RECORDS 519 (trading with the enemy);
An Act in further addition to an Act entitled An Act more effectually to prevent Illicit Trade
(1782),4 CONN. STATE RECORDS 161 (trading with the enemy); An Act for levying and
Collecting a Duty on Certain Articles of Goods Wares and Merchandise Imported into this
State by Land or Water (1784),5 CONN. STATE RECORDS 328 (state import tax).
55. A. TOKAY, MARITIME COURTS AND ADMIRALTY JURISDICTION IN CONNECTICUT, 1776-1789, at pt. 1,30 (1975) based upon a study of 460-470 case files).
56. See, e.g., Brown v. Cornwall, I Root 60 (Conn. Super. 1773); Thompson & Barker v.
Alsop, I Root 64 (Conn. Super. 1774). Similarly in Massachusetts the "bulk of maritime
torts and contracts [before the Revolutionary War] were sued upon at common law." 2
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drastic limitation of the admiralty courts to public law disputes was not
typical among the states,57 but Connecticut's emphasis upon cases of capture was fairly common. 58
3. The Articles of Confederation
The allocation of judicial power between state and national courts
under the Articles of Confederation provides further evidence that
Randolph's discussion of admiralty jurisdiction was more than an idiosyncratic insight. The Articles created a government with some national characteristics but quite limited power. In particular, the national government's judicial power was limited to a narrow admiralty jurisdiction over
"the trial of piracies and felonies committed on the high seas; and ...
appeals in all cases of capture."59 The Articles made no mention of admiralty jurisdiction over revenue cases-presumably because the
Continental Congress lacked legislative authority to enact revenue laws.
Nor did the Articles provide for a national admiralty jurisdiction over
ordinary private litigation like claims for seamen's wages. This omission
is consistent with the existence of a consensus that a national admiralty
jurisdiction over private claims was relatively unimportant.
In effect the Articles of Confederation established a dichotomy
between admiralty cases that directly affected the national interest and
private maritime litigation that had at most an indirect impact upon the
national interest. Provision was made for a national admiralty jurisdiction
over the former while the latter was left to the exclusive power of the
individual states. One capable attorney of the Founding Era expressly analyzed the Articles as drawing this distinction between cases directly
affecting the public interest and cases that really did not involve national
questions. In cases of capture "national powers come in Question ... to be
decided on National Questions, depending on the Law of Nations."60 In
LEGAL PAPERS OF JOHN ADAMS 68 (L. Wroth & H. Zobel 1965). See also Aldrich,
Admiralty Jurisdiction and the Admiralty Courts of New Hampshire During the Colonial
and Revolutionary Period. 10 PRO. BAR ASS'N NEW HAMPSHIRE 31, 47-54 (1909); G.
WASHBURNE, IMPERIAL CONTROL OF THE ADMINISTRATION OF JUSTICE IN
THE THIRTEEN AMERICAN COLONIES, 1684-1776, at 153-56 (1922) (describing charter party litigation in Pennsylvania common law courts).
57. Apparently only Maryland had a similarly limited court of admiralty. See I BENEDICT ON ADMIRALTY § 83 (E. Jhirods & A. Sann ed.; 7th 1981) (suggesting that
Maryland's state admiralty jurisdiction may have been limited to cases of "captures and
seizures").
58. See I BENEDICT 7th §§ 83-88.
59. ARTICLES OF CONFEDERATION art. 9, § I, reprinted in I Stat. 4, 6. See generally
H. BOURGUIGNON, THE FIRST FEDERAL COURT (1977). Instead of creating national
courts for the trial of maritime crimes, the Continental Congress delegated this function to
the states. See W. RITZ, REWRITING THE HISTORY OF THE JUDICIARY ACT OF
1789, at 99-101 (W. Holt & L. LaRue ed. 1990).
60. William Tilghman's notes for Talbot v. Owners of 3 Brigs, Pennsylvania Court
Records, Pennsylvania Historical Society (emphasis original) [hereinafter cited Tilghman's
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contrast a national admiralty court was not needed for the resolution of
private civil cases involving "internal Questions of a civil & maritime
nature, in which courts of admiralty have ... Jurisdiction ... only from the
locality of the transactions, as being done on the High Seas."61
4. Admiralty Jurisdiction Under the Constitution
This pre-existing framework of admiralty litigation undoubtedly
influenced the Philadelphia Convention's call for the creation of federal
admiralty courts. The Virginia Plan,62 William Paterson's New Jersey
Plan,63 and Alexander Hamilton's Plan64 all expressly embodied the eighteenth century public law paradigm of admiralty litigation. But the most
influential modem studies65 have virtually ignored these three plans and
concentrated upon Charles Pinckney's Plan66 and the final recommendation of the Convention's Committee of Detail.67
a. Twentieth Century Visions of the Convention's Work
Writing in 1925, Harrington Putnam concluded that none of the
plans initially presented to the Convention included a provision for admiralty jurisdiction. 68 He quoted the pertinent language of the Virginia, New
Jersey, and Hamilton Plans. 69 He also discussed the Pinckney Plan but
concluded that Pinckney's proposal was a spurious document drafted
sometime after the Convention was adjourned. 70 Putnam's central conclusion was that a federal admiralty system was not proposed until the
Notes]. These notes were written for Tilghman's oral argument on the appeal of Talbot v.
The Owners of Brigs Achilles, Patty, and Hibernia, Hopk. Dec. 132 (Pa. Admiralty 1788).
61. Tilghman's Notes.
62. See infra note 80 and accompanying text.
63. See infra note 82 and accompanying text.
64. See infra note 83 and accompanying text.
65. D. ROBERTSON, ADMIRALTY AND FEDERALISM ch. I (1970); Putnam, How
the Federal Courts were given Admiralty Jurisdiction. 10 CORNELL L. Q. 460 (1925). One
or both of these studies are cited with approval in G. GILMORE & C. BLACK, THE LAW
OF ADMIRALTY 18-19 n. 52 (2d ed. 1975); T. SCHOENBAUM, ADMIRALTY AND
MARITIME LAW § 1-6, at 18 (1987); M. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 139 n. 155 (2d ed. 1990); T.
SHOENBAUM & A. YIANNOPOULOS, ADMIRALTY AND MARITIME LAW 67
(1984); 14 C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3671, at 408 n. I (2d ed. 1985); D. CURRIE, FEDERAL COURTS CASES
AND MATERIALS 210 n. I (4th ed. 1990).
66. See infra note 85 and accompanying text.
67. See infra notes 86-98 and accompanying text.
68. Putnam, How the Federal Courts Were Given Admiralty Jurisdiction, 10 CORNELL
L.Q. 460 (1925).
69. Id at 466-67.
70. Id at 468-69.
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Committee of Detail began its work. "[F]rom study of all the records and
private journals that have come down to us, it must be admitted that this
initiative was by Rutledge [who was a member of the Committee], probably when nearing the last work of the Committee."71
Some forty-five years later, David Robertson took issue with Judge
Putnam. 72 Like Putnam, he briefly alluded to the Virginia, New Jersey,
and Hamilton Plans,73 but he concluded that "the idea of a federal admiralty jurisdiction was contained in the original Pinckney plan."74 Also like
Putnam, Professor Robertson was unable to cast any significant light on
the origins of admiralty jurisdiction under the Constitution.
Neither Judge Putnam nor Professor Robertson explained why they
concentrated on the Pinckney Plan and the final recommendation from the
Committee of Detail. The most likely explanation is that their analyses
were unconsciously shaped by an unspoken and unexamined paradigm of
private litigation. The slighted plans defined national admiralty jurisdiction in terms of specific categories that by negative implication excluded
private maritime claims. 75 Only the Pinckney Plan and the final
Committee proposal used language sufficiently general to encompass private disputes.7 6 Therefore only these latter two proposals comport with
our twentieth century understanding of admiralty litigation.
b. An Eighteenth Century Vision of the Convention's Work
But eighteenth century Americans like Edmund Randolph had a different vision of admiralty litigation. If the surviving documentary record
is reassessed from an eighteenth century perspective, the origins of federal
admiralty jurisdiction are obvious. There is no mystery. Most of the plans
proposed at the Convention included explicit and detailed provisions for a
national admiralty jurisdiction.
On the first day that the Convention began its substantive business,
Edmund Randolph presented the Virginia Plan. His leading concern was
foreign relations. The Articles of "[C]onfederation produced no security
against foreign invasion"77 because the Continental Congress had no real
authority to prevent Or support war. Furthermore, "particular states might
by their conduct provoke war without controul."78 Randolph concluded
71. ld at 469.
72. ROBERTSON'S ADMIRALTY at 10-17.
73. Idat 10-11.
74. ld at 17 (emphasis original).
75. See infra notes 80-83 and accompanying text.
76. The Pinckney Plan and the recommendation from the Committee of Detail used the
general words "maritime" and "admiralty." See infra notes 85-98 and accompanying text.
77. 1 FARRAND'S RECORDS at 19 (Madison's notes). The record of this speech is
drawn from Randolph's draft written in Randolph's hand. See id at 18 n. 7.
78. ld.
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that any plan to remedy these problems "could not be executed without
money.''79
Randolph then presented Virginia's plan to deal with these problems. As part of the plan, he proposed the creation of a federal judicial
system whose power extended to the three most important categories of
admiralty jurisdiction that he discussed three years later in his report to
the first Congress. The new admiralty courts should have power to hear
and determine:
1. "all piracies & felonies on the high seas."
2. "captures from an enemy."
3. "cases... which respect the collection of the National revenue."80
Modem scholars are reluctant to recognize the significance of these subsets
of admiralty juri~diction.81 But to eighteenth century Americans, the proposal was little more than a restatement of existing admiralty practice.
Under the Virginia Plan the national legislature would have been
dominated by the larger states, and the plan was, for that reason, unacceptable to the small states. This major problem prompted William
Paterson of New Jersey to present a small states plan. Although this New
Jersey Plan was drafted as an alternative to Randolph's proposal, Paterson
agreed with Randolph about the proper jurisdiction of national admiralty
courts. The small states plan limited admiralty jurisdiction to "all cases of
captures from an enemy,... all cases of piracies and felonies on the high
seas, [and] the collection of the federal Revenue."82
Alexander Hamilton also drafted a plan that more or less followed
the existing paradigm of maritime litigation. His federal courts would
have had "original jurisdiction in all cases of capture, and an appellate
jurisdiction in all cases in which the revenues of the General
Government... are concerned."83 In Hamilton's pragmatic mind, jurisdic79. Id. Randolph also was concerned about "dissensions between members of the Union,
or seditions in particular states [and wanted to encourage] commerce ad libitum." id at 18-
19.
80. Id at 22. The Virginia Plan also would have extended federal jurisdiction to "cases in
which foreigners or citizens of other States applying to such jurisdictions may be interested... impeachment of any National officers, and questions which may involve the national
peace or harmony." Id.
81. See, e.g., HART & WECHSLER 3d at 14 n. 60. No twentieth century scholar has
viewed the collection of revenues as a subset of admiralty jurisdiction.
82. I FARRAND'S RECORDS at 244. Under this proposal, the Court's jurisdiction
would have been appellate - not original. id. Hamilton also proposed a federal jurisdiction
"to hear & determine in the first instance on all impeachments of federal officers, & by way
of appeal in the denier resort in all cases touching the rights of Ambassadors.... in all cases in
which foreigners may be interested, in the construction of any treaty or treaties." id In what
appears to have been a preliminary draft of the New Jersey Plan, federal jurisdiction extended to revenue cases but to no others. 3 FARRAND'S RECORDS at 612.
83. I FARRAND'S RECORDS at 292. Under this proposal, the Court's jurisdiction over
cases of capture would have been original, and the jurisdiction over revenue cases would
have been appellate only. id. Hamilton also proposed a federal appellate jurisdiction over
"all causes... in which the citizens of foreign nations are concerned." Id.
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tion over crimes on the high seas may have been merely a theoretical concern with no real significance. 84
The chief value of the Virginia, New Jersey, and Hamilton Plans is
to suggest the mainstream consensus regarding the need for a national
admiralty jurisdiction. None of the plans used the phrase admiralty jurisdiction. Nevertheless given the nature of eighteenth century admiralty
practice, the plans' provisions for jurisdiction over prize cases, revenue
cases, and criminal prosecutions must be read as provisions for admiralty
jurisdiction. All three proposals reflected the eighteenth century experience with admiralty courts. In addition all three proposals are directly pertinent to two of the Convention's primary purposes: enhancing the national government's ability to raise revenues and to deal with foreign affairs.
In contrast to the first three plans, the Pinckney Plan used more general terms to define the new federal admiralty jurisdiction: Congress
"shall have the exclusive Right of instituting in each state a Court of
Admiralty ... for hearing and determining all maritime causes."8S A twentieth century admiralty scholar might assume that Pinckney was thinking
primarily about private disputes when he extended the admiralty jurisdiction to "all maritime causes." But a more plausible explanation would be
that the intendment of Pinckney's proposal was the same as the Virginia,
New Jersey, and Hamilton Plans. Given the eighteenth century understanding of the role of admiralty courts, Pinckney probably had cases of
capture, criminal prosecutions, and the revenue collection in mind.
Furthermore he probably was relatively unconcerned with federal admiralty jurisdiction over private disputes. This alternative interpretation of
Pinckney's proposal is consistent with the proposal's eighteenth century
context.
c. The Work of the Committee of Detail
After much discussion of the various plans and considerable political
manuevering, the Convention passed a set of general resolves for the
drafting of a Constitution and referred the matter to a five-person
Committee of Detail. In particular the Convention recommended to the
Committee of Detail, "That the jurisdiction of the national Judiciary shall
extend to cases arising under laws passed by the general Legislature, and
to such other questions as involve the national peace and harmony."86
After about two weeks' work, the Committee reported a draft proposal
that included the admiralty clause that eventually was ratified as part of
the Constitution: "all cases of Admiralty and maritime jurisdiction."87
84. Cf. supra note 59 (noting the Continental Congress's decision to delegate the trial of
maritime crimes to the individual states).
85. 3 FARRAND'S RECORDS 608.
86. 2 FARRAND'S RECORDS 39. See also id at 46 (Madison's notes).
87. ld at 186. The capitalization in this proposal is intriguing. In the eighteenth century.
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The details of the drafting process in the Committee of Detail probably never will be known. Nevertheless a reasonably comprehensive
understanding of the admiralty clause is possible. The first important clue
is the Convention's general direction that federal jurisdiction should
extend to cases arising under acts of Congress and such other questions as
involve the national peace and harmony. This general directive to include
cases arising under Acts of Congress clearly applies to cases of capture,
the prosecution of maritime criminals, and revenue collection. The
Constitution specifically gave Congress legislative authority "to lay and
collect taxes, duties, imports and excises, To define and punish Piracies
and Felonies committed on the high seas, [and] To... make Rules concerning captures on land and water."88 These three express delegations of
substantive lawmaking to Congress also indicate that the Convention
attached national significance to these three categories of cases.
The three categories of public law admiralty cases also clearly
involved the Convention's second general directive to include cases
involving national peace and harmony. The direct relationship of cases of
capture and criminal prosecutions to national peace and harmony is obvious. In contrast, the relationship between revenue collection and national
peace and harmony may seem more attenuated. But as an historic fact,
influential members of the Convention were adamant about the need to
secure adequate revenues. 89 Edmund Randolph, who was a member of the
there was a tendency to capitalize all nouns and to use the lower case for adjectives. This
custom suggests that the committee may have added the words "and maritime jurisdiction"
to expand the federal courts' jurisdiction beyond "cases of Admiralty." If this was the committee's purpose, they probably wanted to assure Admiralty jurisdiction over revenue cases.
But see J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES § 1660, at 527-28 (1833) (advancing the same analysis but opining that the purpose was to expand jurisdiction to private maritime disputes). In England and contrary to the
colonial vice-admiralty practice, revenue cases were tried in the Exchequer - not the
Admiralty. See The Sarah, 21 U.S. (8 Wheat.) 391, 396-97n* (1823). Accord, Richard
Harison, Draft Opinion (1802) reprinted in 2 THE LAW PRACTICE OF ALEXANDER
HAMILTON 854-57 (J. Goebel ed. 1969). Therefore a simple reference to "cases of
Admiralty" could have been read as excluding Admiralty jurisdiction over revenue cases.
The addition of the phrase "and maritime jurisdiction" clarified the federal admiralty courts'
power to try revenue cases. The most important consequence was to deprive the defendants
of a jury trial. See id., United States v. The Schooner Betsy and Charolette, 8 U.S. (4
Cranch) 443, 446 (1808) (Chase, J.). Of course this analysis of the committee's decision to
add the words "and maritime jurisdiction" is quite conjectural.
88. U.S. CONST., Art. I, § 8, cl. I, 10, & II.
89. Although the final version of Article III contained no express reference to revenue
collection cases, Luther Martin subsequently related, "In vain was it urged that the State
Courts ought to be competent to the decision of [revenue] cases: The advocates of this system thought State Judges would be under State influence and therefore not sufficiently independent." Martin's Speech to the Maryland House of Delegates (1787), reprinted in 14
RATIFICATION DOCUMENTS 285, 294. Accord, William Paterson's Senate Speech of
June 23,1789, reprinted in MACLAY'S DIARY 478, 479. See also I I DOCUMENTARY
HISTORY OF THE FIRST FEDERAL CONGRESS: DEBATES IN THE HOUSE OF
REPRESENTATIVES 1350 (c. Bickford, K. Bowling & H. Veit ed. 1992) (Mr. Smith)
[hereinafter cited I I FIRST CONGo HOUSE DEBATES].
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Committee of Detail, had expressly linked revenues to national defense on
the Convention's first day of substantive work.90 Similarly Oliver
Ellsworth, who also served on the Committee of Detail and was to draft
the first Judiciary Act, thought "Wars have now become rather wars of the
purse, than of the sword."91 Admiralty jurisdiction over revenue cases
was particularly important because the delegates anticipated that almost
all of the federal government's revenue would come from customs duties
on maritime commerce. 92
In sharp contrast national admiralty jurisdiction over ordinary private disputes are not as clearly related to the Convention's mandate to the
Committee of Detail. Private disputes typically were regulated by customary law rather than positive legislation. Similarly although some private
disputes might jeopardize the national peace and harmony, most private
disputes do not. As an historic fact, the national interest in private maritime disputes was especially attenuated. When the Constitution was
drafted, most Americans did not think of commercial or even tort claims
when they thought of private maritime litigation. In the late eighteenth
century, simple claims for mariners' wages epitomized private maritime
litigation. We may sympathize with the plight of ordinary seamen and
agree that they should be paid their wages, but this type of claim hardly
has national significance.
From surviving scraps of the Committee's working papers, we know
that at some point-probably early in the drafting process-James Wilson
studied the New Jersey and Pinckney plans and started a rough draft of
tentative clauses. 93 He retained all the specific categories of admiralty
cases in Paterson's original plan but added "Cases... which may arise ...
on the Law ofNations, or general commercial or marine laws."94 In addition, Wilson drew upon the Pinckney Plan by giving Congress "the exclusive Right of instituting in each state a [trial] Court of Admiralty for hearing and determining maritime causes."95
Edmund Randolph and John Rutledge also prepared an early working draft of what was to become Article III, Section 2 of the
90. See supra notes 74-76 and accompanying text. Accord, 2 THE DEBATES IN THE
SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 350 0. Elliot ed. 1830) (Alexander Hamilton) [hereinafter ELLIOT'S DEBATES].
91. Ellsworth, Speech of Jan. 7,1788. reprinted in 3 RATIFICATION DOCUMENTS
548,548.
92. See, e.g., Letter from Oliver Ellsworth & Roger Sherman to Governor Huntington
(Sept. 26,1787), reprinted in 3 RATIFICATION DOCUMENTS 351 (reporting on the convention's work). During the first eleven years of the federal government's operation (17891801), 87% of its receipts came from customs, 8% from internal revenue, and 5% from miscellaneous sources including the sale of public lands. D. DEWEY FINANCIAL HISTORY
OF THE UNITED STATES table, at I 10 (1936).
93. See 2 FARRAND'S RECORDS 134-37 & 157-59.
94. Id at 157 (emphasis original). The underscoring was a common eighteenth century
drafting technique used to show additions to a pre-existing draft.
95. Id at 159.
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Constitution. 96 Their tentative effort clearly was based upon the
Convention's general guidance to the Committee and essentially attempted to flesh out the category of cases involving "the National peace and
harmony." They made no express mention of cases of capture or piracy.
Nor did they specifically mention cases involving the national revenue.
Rutledge did, however, add "Cases of Admiralty Jurisd[ictio]n" to the
list. 97 A near final draft of Article III in Wilson's hand with changes by
Rutledge refined the quite rough tentative language of the earlier
Randolph/Rutledge draft. In this later draft, Wilson defined the federal
courts' admiralty jurisdiction in the general terms that eventually became
part of the Constitution.98
This sparse documentary record cannot be read plausibly as a rejection of the central importance of cases of capture, crimes, and revenue
collection. Nevertheless the Committee at some point opted for a general
admiralty clause and rejected the drafting strategy of breaking admiralty
jurisdiction into subcategories. Perhaps this change was primarily a matter
of style whose primary purpose was to conflate a lengthy and detailed list
of maritime cases into a shorter but more general clause.
Even if the change was essentially a matter of style, members of the
Committee of Detail undoubtedly understood that the general language
selected expanded federal admiralty jurisdiction beyond the paradigmatic
trilogy of public law litigation that dominated eighteenth century minds.
The only direct evidence we have of the Committee's thoughts on this
point is Randolph's Report in which he briefly noted that the Constitution
embraced private maritime disputes but dismissed private disputes as of
little national importance.
To Randolph and most of his contemporaries, mariners' claims for
wages epitomized private maritime litigation. There is a possibility, however, that at least one member of the Committee of Detail recognized the
potential value to maritime commerce of vesting a general admiralty jurisdiction in the federal courts. If this hypothesis is correct, James Wilson's
early draft can be viewed as a pivotal document in which he suggested
that admiralty jurisdiction should be extended to cases arising under "general commercial or maritime Laws." We do not know, however, whether
Wilson had this in mind.
d. Ratifying the Constitution
Further evidence of the Founding Generation's vision of admiralty
jurisdiction is found in the various arguments and analyses advanced during the ratification of the Constitution. For example, when James Wilson
96. ld at 147.
97. Id. This addition was ambiguous and subject to an undesirably narrow interpretation.
See supra note 87.
98. 2 FARRAND'S RECORDS at 173.
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described "causes depending in courts of Admiralty," he mentioned only
"such as relate to maritime captures."99 Similarly in the entire surviving
documentary record of the ratification process, the only specific reference
to private maritime disputes is a single, obscure discussion by Luther
Martin of a hypothetical suit by "mariners of an American or foreign vessel, while in any American port,... for their wages."IOO
The ratification process's best known and most quoted lOl comment
on the need for' a federal admiralty is Alexander Hamilton's remark in
Federalist No. 80:
The most bigotted idolizers of state authorily have not thus far shewn a disposition to deny the national judiciary the cognizance of maritime causes. These so
generally depend on the law of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public
peace. 102
The riddle of this flat pronouncement of consensus is to divine the reason
that even "the most bigotted idolizers of state authority" did not challenge
the need for federal admiralty courts.
99. Wilson, Speech at Public Meeting (1787), reprinted in 13 RATIFICATION DOCUMENTS 337, 340. Similarly, at the Philadelphia Convention Wilson "said the admiralty
jurisdiction ought to be given wholly to the national Government, as it related to cases not
within the jurisdiction of particular states, & to a scene in which controversies with foreigners would be most likely to happen." I FARRAND'S RECORDS 124. This statement could
describe prize cases and perhaps federal revenue cases and criminal prosecutions. But
Wilson's analysis cannot be stretched to encompass the paradigmatic private suit of a
mariner's claim for wages. Pennsylvania common law courts had always had jurisdiction
over these private claims. See Talbot v. Commanders and Owners of Three Brigs, I U.S. (I
Dall.) 95,100 (Pa. 1784).
100. Martin, Genuine Information X (1788), reprinted in 16 RATIFICATION DOCUMENTS 8, 8-9. Martin raised the issue to point out the potential for harassing appeals.
"[E]ither party may carry ["the suit"] to ["the general government's] supreme court; the
injury to commerce and the oppression to individuals which may thence arise need not be
enlarged upon." id. Perhaps Martin's brief reference to "the injury to commerce" provides
some nascent support for the twentieth century paradigm of admiralty jurisdiction. If so,
there is some irony in the fact that Martin's analysis was part of an argument against the wisdom of establishing federal admiralty courts.
101. See, e.g., M. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 139N. 156 (2d ed. 1990); T. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 18 (1987); C. WRIGHT, THE LAW OF FEDERAL
COURTS 3 (4th ed. 1983); D. CURRIE, FEDERAL COURTS CASES AND MATERIALS
210 (4th ed. 1990); T. SCHOENBAUM & A. YIANNOPOULOS, ADMIRALTY AND
MARITIME LAW CASES AND MATERIALS 67 (1984); HART & WELCHSLER 3d at
25 & 59.
102. THE FEDERALIST NO. 80, 538 (A. Hamilton) (J. Cooke ed. 1961). Accord Speech
of James Wilson (Dec. 7, 1787), reprinted in 2 RATIFICATION DOCUMENTS 514, 518.
For a sampling of anti-federalists who agreed that national admiralty courts should be created, see A Federal Farmer's Letters to the Republican. Letter I (Oct. 8,1787), reprinted inl4
RATIFICATION DOCUMENTS 18,24; Letters of Brutus XIn (Feb. 21, 1788), reprinted
in16 RATIFICATION DOCUMENTS 172; Letter of a Georgian (Nov. 15, 1787), reprinted
in3 RATIFICATION DOCUMENTS 236, 242. Some anti-federalists would have limited the
federal admiralty courts to appellate jurisdiction. See Letter from William Grayson to
William Short (Nov. 10, 1787), eXce1pted in 14 RATIFICATION DOCUMENTS 83, 84; II
FIRST CONGo HOUSE DEBATES 1348,1366-67 (1789) (Mr. Livermore).
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If Hamilton had in mind ordinary private litigation, his conclusory
statement is suspect. The general concern of those who opposed the creation of federal courts was a fear that the new federal courts would
"absorb and destroy the judiciaries of the several states."103 Because all
private maritime disputes were triable in the existing state common law
and admiralty courts, federal admiralty courts posed a direct threat to this
state authority. Surely the "most bigotted idolizers of state authority"
would have been disturbed by this threat to state jurisdiction over private
maritime disputes.
George Mason was one of the best known "idolizers of state authority" and his comments in the Virginia ratification debates were consistent
with Hamilton's statement of the national admiralty consensus.
Notwithstanding Mason's general opposition to federal courts-especially
trial courts-he "admit[ted] that they ought to have judicial cognizance in
all cases affecting ambassadors, foreign ministers and consuls, as well as
in cases of maritime jurisdiction."104 In the same paragraph, however,
Mason emphatically stated that "disputes between citizens...claiming
lands under the grants of different states.. .is the only case in which the
federal judiciary ought to have... cognizance of disputes between private
citizens."105
If Mason thought of private disputes when he thought of admiralty
jurisdiction, his comments were inconsistent. But if he was thinking of the
well known trilogy of public law maritime cases, his argument made
sense. His express grouping of maritime jurisdiction with cases involving
foreign diplomats suggests a public rather than a private law paradigm.
Moreover, Mason alluded to the collection of revenues as a reason for his
emphatic endorsement of a federal admiralty jurisdiction. 106
This analysis of Mason's acceptance of federal admiralty jurisdiction
resolves the superficial incoherence of Hamilton's flat pronouncement of
consensus in Federalist No. 80. Hamilton's statement becomes intelligible
103. See, e.g., Mason, The Objections of the Hon. George Mason to the Proposed
Federal Constitution (1787), reprinted in PAMPHLETS ON THE CONSTITUTION OF
THE UNITED STATES 329-30 (P. Ford ed. 1888).
104. 3 ELLIOT'S DEBATES at 523.
105. ld (emphasis added). Accord id at 527 (Mason expressly rejects alienage jurisdiction). The second ellipsis in the text deletes the word "appellate." Given the thrust of
Mason's argument he could not possibly have intended to suggest that original as opposed 10
appellate federal jurisdiction over disputes between private citizens was acceptable.
106. Mason explained
There is an additional reason now to give [the federal courts] this last power [over "cases of
maritime jurisdiction]: because Congress. besides the general powers, are about to get that of
regulating commerce with foreign nations. This is a power which existed before, and is a
proper subject of federal jurisdiction.
id at 523. He apparently had in mind federal revenue laws when he referred to this new
power "of regulating commerce with foreign nations." See Appendix, infra. The puzzling
reference to a pre-existing power to regulate foreign commerce may refer to Parliament's
authority in colonial times. See 3 THE PAPERS OF GEORGE MASON 1109 n. (R. Rutland
ed. 1970).
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if by admiralty litigation he meant public law cases like the condemnation
of prizes and the collection of revenue. The plan that Hamilton previously
drafted for the Philadelphia Convention certainly suggests this public law
vision. 107 But we do not have to conjecture about Hamilton's intent. He
clearly stated in Federalist No. 80 the basis for the national admiralty consensus. He concluded his discussion of admiralty jurisdiction by noting,
"The most important part of ["maritime causes"] are by the present
Confederation [i.e., the Articles of Confederation] submitted to federal
jurisdiction."108 Because the existing national judicial power was narrowly confined to cases of capture, Hamilton's analysis expressly excluded
ordinary private maritime litigation. 109
Many modem scholars have noted the importance of prize litigation,
but they have assumed that the Founding Generation was at least equally
interested in promoting and protecting the maritime industry.110 There is,
however, virtually no basis-other than anachronistic assumptions-for
concluding that this modem concern figured significantly into the original
consensus on the need for national admiralty courts. The only specific
evidence that has been advanced to support the Founding Generation's
concern for the protection and support of the maritime industry are brief
remarks by James Madison and Edmund Randolph at the Virginia
Ratification Convention. II I
Although Madison and Randolph each urged the creation of federal
admiralty courts, neither advocate made any reference whatsoever to the
maritime industry, commercial affairs, or private disputes. Madison's
comments were made in the course of a discussion of cases that "may
note 83 and accompanying text.
108. THE FEDERALIST NO. 80,538 (A. Hamilton) (J. Cooke ed. 1961). Hamilton
reemphasized the importance of prize cases in THE FEDERALIST NO. 83, at 568 (J. Cooke
ed.196I).
109. Some might argue that Hamilton's words merely describe cases of capture as the
"most important" aspect of admiralty jurisdiction and leave open the possibility that he
thought that private maritime litigation also was important but not the most important. While
this interpretation is possible, the more likely candidates for maritime cases of secondary
importance were cases of revenue collection and perhaps criminal prosecutions. Cf.
Hamilton's Plan, discussed in supra note 83 and accompanying text.
110. D. CURRIE, FEDERALIST COURTS CASES AND MATERIALS 211 (4th ed.
1990); HART & WECHSLER 3d. at 1076; T. SCHOENBAUM & A. YIANNOPOULOS,
ADMIRALTY AND MARITIME LAW 67 (1984); T. SCHOENBAUM, ADMIRALTY
AND MARITIME LAW 56 (1987); Black, Admiralty Jurisdiction: Critique and
Suggestions. 50 COLUM. L. Rev. 259, 262 (1950); Frank, Historical Bases of the Federal
Judicial System, 13 L. & CONTEMP. PROB. 3, 14 (1948); Stolz, Pleasure Boating and
Admiralty: Erie at Sea. 51 CAL. L. Rev. 665 (1963); Putnam, How the Federal Courts Were
Given Admiralty Jurisdiction, 10 CORNELL L. Q. 460, 469 (1925). See also F. FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT 7-8 (1928); R.
POSNER, THE FEDERAL COURTS 48 (1985).
III. See Stolz, Pleasure Boating and Admiralty: Erie at Sea, 51 CAL. L. REV. 661,670
(1963). Accord, Currie, Federalism and the Admiralty: "The Devils own Mess," 1960
SUPREME COURT REV. 158, 163 (1960). Semble D. CURRIE, FEDERAL COURTS
CASES AND MATERIALS 211 (4TH ED. 1990).
107. See supra
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involve us in controversies with foreign nations."112 He was specifically
concerned about "the exposition of treaties,... cases affecting ambassadors
and foreign ministers, [and] admiralty and maritime cases."113 He conclqded,
As our intercourse with foreign nations will be affected by decisions of this kind,
they ought to be unifonn. This can only be done by giving the federal judiciary
exclusive jurisdiction. Controversies affecting the interest of the United States
ought to be determined by their own judiciary, and not be left to partial, local tribunals.J/4
Madison's insistence upon exclusive jurisdiction made sense in the case
of prize litigation but was silly if he had in mind private disputes like a
bosun's claim for wages.
Randolph made essentially the same argument for exclusive federal
jurisdiction. "As our national tranquility and reputation, and intercourse
with foreign nations, may be affected by admiralty decisions [and] as they
ought, therefore, to be uniform,"115 he urged that state courts should be
entirely barred from trying "Cases of admiralty and maritime jurisdiction."116 Randolph-like Madison-did not expressly state what kinds of
cases he had in mind when he urged the necessity of totally stripping the
state courts of their admiralty jurisdiction. But when he advanced precisely the same arguments some two years later in his Report to the first
Congress, he limited his analysis to prize litigation and criminal prosecutions.l l7 Moreover he expressly disclaimed the national significance of in
rem admiralty jurisdiction over private disputes.l l8
5. Admiralty Jurisdiction Under the Judiciary Act
The public law paradigm that dominated the Founding Generation's
understanding of admiralty jurisdiction continued to be influential after
the Constitution was ratified. When the first Congress was convened,
Oliver Ellsworth, who had significant experience with the admiralty
courts under the Article of Confederation, I 19 played the leading role in the
112. 3 ELLIOT'S DEBATES 532.
113. Jd.
114. Jd (emphasis added). Similarly, immediately before the Philadelphia Convention
met, Madison wrote, "The admiralty jurisdiction seems to fall entirely within the purview of
the [planned] national Government." Letter from James Madison to George Washington
(Ap. 16, 1787), reprinted in 9 THE PAPERS OF JAMES MADISON 382, 384 (R. Rutland
ed. 1979). A year earlier, when Madison was studying ancient and modem confederacies, he
noted that the Belgic or Dutch Confederacy had a federal admiralty court with "final
conuzance of all crimes & prizes at sea [and] of all frauds in customs." Madison, Notes an
Ancient and Modern Confederacies (1786), reprinted in id. 4, 15.
115. Jd at 571.
116. Jd (emphasis original).
117. See supra notes 14-33 and accompanying text.
118. See supra note 33 and accompanying text.
119. He served on the Committee that drafted the measure that created the Continental
Congress's Court of Capture and that delineated practice and procedure in the court. See 16
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creation of the new federal judicial system. 120 The admiralty provisions of
the bill that he personally penned were enacted by. the Congress without
objection. 121
Under Ellsworth's scheme, the national courts were given exclusive
jurisdiction over "all crimes and offenses that shall be cognizable under
the authority of the United States, committed ... upon the high seas."122 In
addition, the national admiralty courts were given
exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost. navigation or trade of the
United States. where the seizures are made on waters which are navigable from
the Sea by Vessels of ten or more tons burthen, within their respective districts as
well as upon the high seas. Saving to Suitors in all cases the right of a common
law remedy where the common law is competent to give it. 123
The problem is to discover what this language meant to members of
the first Congress.
a. The Twentieth Century Vision of the Judiciary Act
Because twentieth century admiralty scholars are interested almost
solely in the adjudication of private disputes, they tend to ignore the Act's
explicit and detailed references to revenue collection and criminal prosecutions. The result is to shorten the original provisions to a deceptively
simple dichotomy in which the federal courts are vested with
J. CONT. CONGo 32 (1780). See also H. BOURGUIGNON, THE FIRST FEDERAL
COURT 114-15 (1977). Ellsworth also served as an admiralty appellate judge in a number
of prize cases and as an advocate in a number of other prize cases. See id at 329 n. 22.
120. See Holt's Study at 1481-84.
121. Compare Judiciary Bill [S-II, 1st Cong., 1st Sess. § 10 (1789), [hereinafter cited
Judiciary Billl reprinted in 5 LEGISLATIVE HISTORIES 1172, 1176-77 with Judiciary Act
§ 9 (district courts' admiralty jurisdiction). Ellsworth personally penned the sections of the
Bill that related to the federal courts' jurisdiction. See 5 LEGISLATIVE HISTORIES at
1194.
122. Judiciary Bill § 10; Judiciary Act § 9 (District Courts). The Judiciary Act established
two systems of lower federal trial courts. A federal district judge resided in each district and
presided over a district court (Judiciary Bill § 3; Judiciary Act § 3) that served primarily as
an admiralty court. Judiciary Bill § 10; Judiciary Act § 9. In addition, circuit courts were created in each district to consist of the resident district judge and at least one Supreme Court
Justice riding circuit. Judidary Bill § 4; Judiciary Act § 4. These circuit courts were the primary common law courts. Judiciary Bill § II; Judiciary Act § II.
The District Court's criminal admiralty jurisdiction was limited to minor crimes. Judiciary
Bill § 10; Judiciary Act § 9. The circuit courts' criminal jurisdiction did not expressly extend
to crimes on the high sea. Nevertheless the circuit courts' "exclusive cognizance of all
crimes and offenses cognizable under the authority of the United States" (Judiciary Bill §
II; Judiciary Act § II) clearly encompassed crimes on the high sea. See United States v.
Coolidge, 25 F. Cas. 619, 621-22 (C.C.D. Mass. 1813) (Story, J.), rev'd on other grounds 14
U.S. (I Wheat.) 415 (1816). Moreover the Circuit Courts' criminal jurisdiction was made
expressly concurrent with the district courts' jurisdiction over crimes on the high sea.
123. Judiciary Bill § 10; Judiciary Act § 9 (District Courts). The circuit courts were not
vested with an original civil admiralty jurisdiction. See Judiciary Bill § II; Judiciary Act §
II. They were, however, given an appellate jurisdiction over admiralty cases originating in
the district courts. Judiciary Bill § 21; Judiciary Act § 21.
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"exclusive original cognizance of all causes of admiralty and maritime jurisdiction ... saving to suitors, in all cases, the right of a common law remedy, where
the common law is competent to give it."124
The effect of the "saving to suitors" clause is to permit the state courts to
exercise concurrent jurisdiction over maritime cases in which a common
law remedy traditionally was available. In all other cases, the national
courts' admiralty jurisdiction is exclusive.
The now traditional explanation of the Act's admiralty dichotomy
between cases of exclusive and concurrent jurisdiction has turned on the
nature of the remedy sought. 125 In the leading case, the Supreme Court
emphatically stated that the "saving to suitors"
clause only saves to suitors "the right of a common-law remedy, where the common law is competent to give it." It is not a remedy in the common-law couns
which is saved, but a common-law remedy. A proceeding in rem, as used in the
admiralty couns, is not a remedy afforded by the common law; it is a proceeding
under the civillaw. 126
Accordingly cases of exclusive admiralty jurisdiction are in rem
cases in which the remedy is limited to the value of a vessel or cargo
attached by the court. Conversely cases in which the state courts have
concurrent maritime jurisdiction are those in which an in personam remedy is sought.
This procedural distinction fits the language of the Act. But one
wonders why the first Congress would have viewed the technical distinction between in rem and in personam jurisdiction sufficiently important to
warrant a complete ouster of state court jurisdiction. Perhaps the members
of the first Congress thought that in contrast to in personam litigation, the
outright seizure of a ship at the outset of litigation had a significantly different kind of impact upon maritime trade. If so, no member of Congress
or any other member of the Founding Generation ever expressed this
thought.
Another reason for the traditional in rem/in personam dichotomy
was suggested in The Hind v. Trevor 127 when the Court ·voided a state
/ statute authorizing a state court to use in rem proceedings in a dispute
arising out of a steamboat collision. Writing for a unanimous court,
Justice Miller reasoned
But it could not have been the intention of Congress, by [enacting the "saving to
suitors" c1auselto give the suitor all such remedies as might afterwards be enacted by state statutes, for this would have enabled the states to make the jurisdiction of their couns concurrent in all cases, by simply providing a statutory remedy for all cases. Thus the exclusive jurisdiction for the Federal couns would be
defeated. 128
124. See, e.g., GILMORE & BLACK 2d at 19 (ellipsis original). See also T. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 57 (1987) (obscuring jurisdiction in revenue collection cases and ignoring criminal jurisdiction).
125. See GILMORE & BLACK 2d § 1-13.
126. The Moses Taylor, 71 U.S. 411, 431 (1866).
127. 71 U.S. 555 (1866).
128. ld at 571-72.
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As Justice Miller suggests, the Judiciary Act's "saving to suitors" exception should not be permitted to swallow up the Act's previously stated
general rule of exclusive jurisdiction.
Justice Miller's argument is particularly persuasive if virtually all
cases tried by federal admiralty courts involve private claims. Under the
modem paradigm of private litigation, the substantive nature of the underlying maritime claims tried in state and federal courts are more or less the
same.l 29 By definition both sets of courts try cases arising out of private
civil disputes having some relationship to maritime activities. Therefore
the underlying substance provides no basis for distinguishing between
maritime litigation within the exclusive federal jurisdiction and litigation
within the "saving to suitors" clause. In contrast, the in rem/in personam
dichotomy provides a procedural basis for distinguishing between claims
whose substance is essentially similar.
Although the in rem/in personam dichotomy has become a sacred
tenet of admiralty jurisdiction, this jurisdictional doctrine was virtually
unprecedented in 1866 when it was essentially invented by the Court.
There is no mention of the dichotomy in any of the preexisting commentaries that discussed concurrent state and federal jurisdiction over maritime claims.l 30 Nor did the Court cite any precedent in its opinion.l 31 In
short, the in rem/in personam dichotomy originated in the second half of
the nineteenth century as a virtual ipse dixit.
129. See, e.g., DeLovio v. Boit, 7 F. Cas. 418, 426 & 434 (C.C.D. Mass. 1815) (Story, J.
No. 3776) ("the courts of common law... have usurped or acquired concurrent jurisdiction
over all causes, except for prize, within the cognizance of the admiralty.") See also Talbot
v. The Commanders and Owners of three Brigs, I U.S. (I Dall.) 95, 99 (Pa. 1784).
130. See I A. CONKLING, THE ADMIRALTY JURISDICTION, LAW, AND PRACTICE OF THE COURTS OF THE UNITED STATES 75-76 n. c (2d ed. 1857); I J. KENT,
COMMENTARIES ON AMERICAN LAW 372 (1826); 3 J. STORY, COMMENTARIES
ON THE CONSTITUTION OF THE UNITED STATES 533-34 n. 3 (1833) 2 T. PARSONS, A TREATISE ON MARITIME LAW 521-26 (1859). There is no clear discussion of
concurrent jurisdiction in E. BENEDICT, THE AMERICAN ADMIRALTY (1850). In
1849, Joseph Angel noted in passing that in rem remedies were not available in courts of
common law. J. ANGELL, A TREATISE ON THE LAW OF CARRIERS OF GOODS
AND PASSENGERS BY LAND AND BY WATER § 610 (1849). But he did not suggest
this distinction as a tool for analyzing the state courts' concurrent jurisdiction over maritime
claims. Similarly Charles Abbott noted that in rem proceedings against a ship were generally
unavailable in the English common law courts, but his American editors did not even hint
that this distinction provided a basis for determining the federal courts' exclusive admiralty
jurisdiction. Compare C. ABBOTT, A TREATISE OF THE LAW RELATIVE TO MERCHANT SHIPS AND SEAMEN *162 & *654 (6th Am. ed. 1850) (English practice) with id
at 238 n. (I), 665 n. (2), & 788 n. (I) (pertinent notes of Justice Story and J.C. Perkins).
131. See The Moses Taylor, 71 U.S. (4 Wall.) 411, 431 (1866); The Hind v. Trevor, 71
U.S. (4 Wall.) 555, 571-72 (1866). Two earlier lower court opinions, one state and the other
federal, used or mentioned the in rem/in personam dichotomy as a test for divining jurisdiction under the "saving to suitors" clause. Ashbrook v. The Golden Gate, 2 F. Cas. 10 (D.
Mo. 1856) (No. 574); Percival v. Hickey, 18 Johns. 257, 292 (N.Y. Sup. Cl. 1820). The only
direct authority cited in these two opinions was the respected British admiralty treatise 2 A.
BROWNE, A COMPENDIOUS VIEW OF THE CIVIL LAW AND OF THE LAW OF
THE ADMIRALTY 111-12 (2d ed. 1802).
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b. An Eighteenth Century Vision of the Judiciary Act
The primary historical objection to the in rem/in personam dichotomy is that the distinction seems not to have occurred to any member of
the Founding Generation.l 32 With one exception, no one in the eighteenth
. century ever mentioned in rem jurisdiction in the context of allocating
admiralty jurisdiction between state and federal courts. This relative
silence is disturbing enough, but the exception is positively embarrassing.
Randolph's Report specifically addressed the issue of in rem jurisdiction
in private maritime litigation, but Randolph stood the now traditional
analysis on its head. "In the [case of private maritime claims]," he wrote,
"the State Legislature may establish a jurisdiction reaching the vessel
itself."I33
In addition to this almost complete silence, the in rem/in personam
dichotomy was quite irrelevant to the most frequently litigated issue of
concurrent common law jurisdiction in the early Republic. Both before
and after the enactment of the Judiciary Act, numerous cases arose in
which common law courts considered their jurisdiction over in personam
claims that in some way related to the taking of a prize. In the leading
case of Le Caux v. Eden 134 decided by the King's Bench in 1781, privateers who illegally seized a prize were sued at common law for false
imprisonment. In dismissing this suit, the court held that it lacked jurisdiction over any case in which the court would have to consider the legality
of the taking of a prize. 135 The fundamental issue of "prize or no prize"
Perhaps the Supreme Court did not refer to Browne's treatise because the Justices were
loathe to rely upon British authority in determining the extent of federal admiralty jurisdiction. Less than twenty years earlier the Court had firmly rejected British doctrines that
severely limited the admiralty court's authority to grant an in personam judgment (New
Jersey Nav. Co. v. Merchants' Bank of Boston, 47 U.S. (6 How.) 344, 392 (1848» and that
absolutely restricted admiralty jurisdiction to tidal waters, See infra notes 185-86 and
accompanying text. Similarly, some five years later the Court formally adopted Justice
Story's opinion in De Lovio v. Boit (see infra notes 183-84 and accompanying text) rejecting the quite constricted British understanding of admiralty jurisdiction over claims for
breach of contract. Insurance Co. v. Durham, 78 U.S. (II Wall.) I (1871).
132. The earliest reference that I have found to the in rem/in personam dichotomy is
Browne's treatise on the British Admiralty published in Ireland thirteen years after the
Judiciary Act became law. See 2 A. BROWNE, A COMPENDIOUS VIEW OF THE CIVIL
LAW AND THE LAW OF ADMIRALTY ch. IV (2d ed. [802). The first edition of this
work did not address admiralty law. See A. BROWNE, A COMPENDIOUS VIEW OF THE
CIVIL LAW (1797). Browne's purpose in advancing the distinction was to expand the traditional jurisdiction of the British Admiralty. See 2 A. BROWNE, A COMPENDIOUS VIEW
OF THE CIVIL LAW AND THE LAW OF ADMIRALTY 88, 98-99,112, & 116-[ 18 (2d
ed. 1802). He expressly stated that his proposal to key jurisdiction to the procedural nature
of the remedy being sought was an innovation. See id at 90-91 (contracts). See also id at
116-18 (torts).
133. See supra note 33 and accompanying text.
134. 99 Eng. Rep. 375 (K.B. 1781).
135. Id at 384-85 (Buller, J.; Lord Mansfield, concurring). For American cases following
this rule before the enactment of the Judiciary Act, see Doane's Administrators v.
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was a matter of exclusive admiralty jurisdiction.
After the Judiciary Act was passed, virtually all early analyses of the
state courts' concurrent jurisdiction involved claims that in some way
related to the taking of a prize. Moreover, all of these courts followed the
Le Caux rationale. 136 They ignored the nature of the process and looked
to the nature of the underlying claim.
If the Judiciary Act is read anew without the spurious benefit of
modern preconceptions, an entirely different understanding of federal
admiralty jurisdiction emerges. The Act unequivocally and explicitly
establishes a dichotomy between exclusive and concurrent federal jurisdiction. This structure suggests that some maritime cases were deemed so
important to the national interest that the state courts should be expressly
forbidden to try them. In contrast the Act's structure suggests the national
interest in other cases was relatively insignificant. The "saving to suitors"
clause authorized plaintiffs to file these relatively insignificant cases in a
state court. These inferences from the Act's structure are supported by
William Tilghman's,137 James Madison's,138 and Edmund Randolph's139
statements before and after the Act's passage.
Penhallow, 1 Dall. 218 (Pa. 1787); Talbot v. The Commanders and Owners of Three Brigs,
1 Dall. 95 (Pa. 1784); W.B. Surviving Partner v. Latimer, 4 Dall. i (Del. 1788). See also 3
W. BLACKSTONE. COMMENTARIES * 108.
136. Novion v. Hallet, 16 Johns. 327 (N.Y. 1819) (Kent, Ch.); Simpson v. Nadeau, I
N.C. (Cam. & Nor.) 115 (1801); Cheriot v. Foussat, 3 Binn. 220 (Pa. 1810); Sasportas v.
Jennings, I S.c.L. (I Bay) 470 (S.C. Super. 1795); Percival v. Hickey, 18 Johns. 25 (N.Y.
Sup. Ct. 1820); Slocum v. Wheeler, I Conn. 429 (1816). See also United States v. Bright, 24
F. Cas. 1232,1235 (C.C.D. Pa. 1809) (No. 14,647). But Cf. Richard Harison, Draft Opinion
(1802) reprinted in 2 THE LAW PRACTICE OF ALEXANDER HAMILTON 854-57 (J.
Goebel ed. 1969) discussed in infra note 142.
In the Cheriot case, Judge Brackenridge explained that the "saving to suitors" clause
reserves "a right to demand of the court of any state, the remedy of a wrong, where the common law is competent to give it." 3 Binn. at 263. He went on to suggest "The cases of prohibition [in which English common law courts barred admiralty courts from trying most private maritime claims] shew where the admiralty and maritime courts may have a concurrent
jurisdiction." id at 263-68. Insofar as exclusive federal admiralty jurisdiction was concurred,
Judge Brackenridge decided, "It is clearly settled by the English cases, that it is ... the nature
of the question, that must determine." id at 264. Given the federal government's special
interest in prize litigation, he concluded that the federal courts should have exclusive jurisdiction over all cases related to the taking of a prize. id at 264-73.
At least in prize cases, Judge Brackenridge rejected the in rem/in personam distinction. "I
lay aside the case of Hughes and Cornelius, or any other which may seem to countenance
the idea that the legality of capture incidentally coming into view, but not so far as to affect
the res, may be inquirible into in a common law court." id at 265, apparently referring to
Hughes v. Cornelius, 90 Eng. Rep. 28. Similarly during the course of a lengthy argument in
Simpson v. Nadeau, supra, the plaintiff's counsel suggested that concurrent jurisdiction in
the state common law court might be permissible because the vessel involved in that case
was absent and therefore not subject to the federal court's in rem prize jurisdiction. I N.C.
(Cam. & Nor.) at 140-41. The court, however, rejected this suggestion as an unprecedented
innovation. id at 143.
137. See supra notes 60-61 and accompanying text.
138. See supra notes 112-14 and accompanying text.
139. See supra notes 14-33 & 115-18 and accompanying text.
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The modem understanding of admiralty jurisdiction defines the
national interest in particular maritime disputes by exclusive reference to
the procedural nature of the remedy sought. In contrast, every piece of
surviving evidence indicates that the Founding Generation's overriding
concern was with the substance of the underlying dispute. The fact that
prize cases involved an in rem process was an insignificant detail. Prize
cases were important because they involved the regulation of maritime
warfare. Similarly federal maritime jurisdiction over revenue cases was
crucial to securing adequate revenues-not to guaranty an orderly and
uniform administration of in rem process.
If Ellsworth was motivated by substantive rather than procedural distinctions when he drafted the Judiciary Act's admiralty clause with its
"saving to suitors" provision, one might ask why he did not define federal
admiralty jurisdiction by express reference to the underlying claim. The
short answer to this question is that he did. Most of the words in the Act's
admiralty provisions are devoted to defining exclusive jurisdiction over
crimes and revenue cases. There is no express reference to cases of capture, but he undoubtedly viewed these proceedings as the epitome of cases
described by the Act's reference to "civil causes of admiralty and maritime jurisdiction."140 This vision was fully supported by his experience
under the Articles of Confederation, the admiralty practice in his home
state of Connecticut, and the well known doctrine of "prize or no
prize."141 Therefore the Act easily can be read as establishing a substantive rather than a procedural framework for defining the federal courts'
exclusive admiralty jurisdiction. In the event, early nineteenth century
courts adopted a substantive rather than a procedural analysis for determining the federal courts' exclusive admiralty jurisdiction.l 42
140. Accord DeLovio v. Boit, quoted in supra note 129.
141. See supra notes 134-36 and accompanying text. '
142. In Brevoor,v. The Fair American, 4·F. Cas. 71 (D. Pa. 1800) (No. 1847), Judge
Peters opined that the federal courts had. l;x,c1usive jurisdiction over salvage cases. He noted
the possibility of basing this decision on a distinction between in rem and in personam jurisdiction (id at 73), but he firmly and expressly rejected this procedural analysis in favor of a
substantive analysis:'
The jurisdiction does not appear to me to be founded on the mode of proceeding; but on the
original cause. and the place, of the transaction. It attaches "ob causum a re maritime
onum...... I cannot conceive a case more completely within admiralty jurisdictions.... Nor do
I see how a common law coun could legally take cognizance of such a case, or its incidents.
"La mer a ses ,lois comme la terre:'
also supra notes 134-36 and accompanying text. For another example of using substance rather than procedure to delimit the federal courts' exclusive admiralty jurisdiction,
see the otherwise idiosyncratic analysis of a former state admiralty judge in Letter from
Benjamin Nicholson to John E. Howard (Oct. 28, 1790) reprinted in Nicholson v. State, 3 H.
& McH. 109,110-11 (Md. 1792).
'
The in rem/in personam dichotomy also is notably absent from the early nineteenth century opinion of a capable lawyer who served as the United States Attorney for the District of
New York from 1789 to 1801. Richard Harison, Draft Opinion (1802) reprinted in 2 THE
LAWPRACTICE OF ALEXANDER HAMILTON 854-57 (J. Goebel ed. 1969) During the
course of his opinion, Harison grappled with the issue of whether the "saving to suitors"
id. See
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In contrast to the provisions defining exclusive jurisdiction over the
more important admiralty cases, Ellsworth at first glance seems to have
opted for a procedural definition when he penned the "saving to suitors"
clause that in effect established concurrent jurisdiction over private litigation. As the Supreme Court emphatically stated in The Moses Taylor, "It
is not a remedy in Common-law courts which is saved, but a common law
remedy."143 This flat pronouncement is self-evident to individuals steeped
in over a hundred years of modem admiralty tradition, but Ellsworth may
well have thought otherwise. Jacob's Law Dictionaryl44 was one of the
primary texts in his legal education,145 and Jacob's defined Remedy as
"the Action or means given by law, for the Recovery of a Right."146
Following this eighteenth century definition, concurrent admiralty jurisdiction under the Act could extend to all disputes in which the common
law is competent to give a cause of action.
In other words, the Jacob's definition suggests that concurrent jurisdiction could be keyed to the legislative jurisdiction of the common law
courts rather than those courts' coincidental use of in personam process.
This quite broad definition could'bring to pass precisely the allocation of
jurisdiction that the Suprem~ Court found intolerable in The Hind. The
federal courts' exclusive maritime jurisdiction over private disputes
would indeed be swallowed up. But from an eighteenth century perspective, this broad definition would preserve inviolate the federal courts'
exclusive jurisdiction over the public law cases that really counted: prize
cases, criminal prosecutions, and revenue collection cases.
Ellsworth's decision to use the concept of common law legislative
jurisdiction also provided a neat and simple solution to a serious drafting
problem. To define admiralty jurisdiction over private litigation by detailclause might guaranty a trial by jury in cases of seizures for offenses against customs laws.
"Defendants" he wrote,
who might perhaps be considered as Suitors instead of having a Trial by Jury. have a
Common Law. remedy saved to them. which implies some Wrong or injury that they must
have previously sustained. Now this Fact of their having sustained an injury can never be
known until after the Trial upon the siezure; & consequently the Remedy contemplated must
be something to take Place after such Trial. Now. the Common Law Remedy for unjust
seisures was by Action of Trespass; and the Act seems to have had it in view to exclude the
Inference that might be derived (whether just or not) from the Case of Le Caux & Eden in
Douglas [see supra notes 134-36 and accompanying text). and those there cited. that where
an Admiralty Coun has Congnizance of the principal Question, it shall also have Cognizance
of the Incidents, and that no Suit at Common Law could be sustained for an Injury where the
Admy Coun might have given Compensation to the injured Pany.
This opinion that the "saving to suitors" clause was intended to limit Le Caux' s ratio decideni is problematical. See supra note 136 and accompanying text.
143. See supra note 126 and accompanying text.
144. G. JACOB, ANEW LAW DICTIONARY (6th ed. 1750).
145. See BROWN'S ELLSWORTH at 22.
146. G. JACOB, A NEW LAW DICTIONARY remedy (6th ed. 1750). Ellsworth's
friend and fellow Connecticut lawyer, Zephaniah Swift, also broadly equated the word remedy with the idea of a cause of action. See 2 Z. SWIFf, A SYSTEM OF THE LAWS OF
THE STATE OF CONNECTICUT 18-19 (1796).
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ing the various types of underlying claims would have been a hideously
difficult and perhaps impossible task. 147 In effect, Ellsworth drafted
around the problem by opting for a vague and general definition. This
decision to punt was consistent with the idea that public law cases were
more important than private disputes. When he addressed an important
category of maritime jurisdiction like revenue collection cases, he was
quite precise and quite detailed. 148 But he may not have deemed this precision as important when he turned to the relatively insignificant category
of ordinary private maritime disputes.
The Congress's consideration and enactment of Ellsworth's
Judiciary Bill is consistent with a substantive rather than procedural
analysis of the Bill's admiralty provisions. The House and Senate devoted
extensive time to debating the Bill's provisions for jurisdiction,149 but the
debates in both houses were in the context of proposals to limit the lower
federal courts' jurisdiction to "Admiralty or Maritime causes."150 Given
this consensus that the federal courts should have admiralty jurisdiction,
scant attention was paid to the Bill's actual language delineating jurisdiction over maritime cases. Nevertheless the surviving records of the
debates provide a few clues to the Congress's jurisdictional agenda. For
example, members of Congress mentioned the paradigmatic public categories of admiralty jurisdiction: prize cases,151 criminal prosecutions,152
and revenue collection. 153 But there is no record of any Senator or
Representative mentioning any type of private maritime claim. Similarly
no one even alluded to the in rem/in personam dichotomy.t 54
The motions to limit the lower federal courts' jurisdiction to admiralty cases were defeated in both Houses.t 55 Nevertheless, the motions
147. For a modem discussion of this inherent drafting problem, see ALI, STUDY OF
THE DIVISION OF JURISDICfION BETWEEN STATE AND FEDERAL COURTS 22930 (1969).
148. Ellswonh
probably did not elaborate an exclusive jurisdiction over prize cases
because he rightly assumed that the doctrine of "prize or no prize" (see supra notes 134-36
and accompanying text) would be read into the statute.
149. See generally Holt's Study at 1478-1517.
150. Proposed Amendment (June 22, 1789), reprinted in 5 LEGISLATIVE HISTORIES
at 1194. See also MACLAY'S DIARY at 85.
151. II FIRST CONGo HOUSE DEBATES 1348 & 1367 (Mr. Livermore); id. at 1389
(Mr. Jackson).
152. id at 1350, 1351, 1352, & 1362 (Mr. Smith); id at 1376 (Mr. Livermore); id. at 1383
(Mr. Stone); id at 1389 (Mr. Jackson). See also Letter from David Sewall to Caleb Strong
(Mar. 28, 1789). quoted and discussed infra Appendix.
153. II FIRST CONGo HOUSE DEBATES 1328 & 1329 (Mr. Livermore); id. at 1349
(Mr. Smith); id. at 1354 (Mr. Jackson).
154. In the House debates, Representative Jackson indirectly alluded to in rem admiralty
jurisdiction in the course of arguing that imponant federal issues could be entrusted to the
state couns subject to the Supreme Coun's appellate jurisdiction. id at 1389. But he did not
hint that the in rem/in personam might be used to distinguish between exclusive federal
admiralty jurisdiction and concurrent state jurisdiction.
155. See Holt's Study at 1490-93.
.
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provide further corroborative evidence of the eighteenth century understanding of admiralty jurisdiction. Senator Maclay relates that on the first
day of the Senate debates, Senator "Lee brought forward a Motion nearly
in the Words of the Virginian amendment, Viz. that the Jurisdiction of the
Federal Courts should be confined, to cases of admiralty and Maritime
Jurisdiction."156 Although Lee opposed the creation of an extensive system of lower federal trial courts, his motion accepted the creation of an
extensive system of federal admiralty courts with a complete original
jurisdiction over all maritime cases.I 57
If Lee viewed maritime litigation as devoted primarily to private disputes, his motion was incoherent. But Lee probably supported federal
admiralty jurisdiction for reasons similar to those previously advanced by
his fellow Virginian and political ally, George Mason. 158 After the
Philadelphia Convention completed its works, Lee and Mason worked
together in opposition to the Constitution.I59 As Senator Maclay indicated, Lee's subsequent motion in the first Congress was based upon a recommendation from the Virginia Ratification Convention. Like Mason,
Lee specifically opposed an extensive system of lower federal courts,160
and they convinced the Virginia Convention to propose a constitutional
amendment stripping the federal courts of jurisdiction over private dis156.
MACLAY'S DIARY at 85. The precise words of Lee's motion were:
That no subordinate federal jurisdiction be established in any state, other than for
admiralty or maritime causes but that federal interference shall be limited to
Appeals only from the State Courts to the Supreme Federal Court of the U.
States.
5 LEGISLATIVE HISTORIES at 1194.
157. Senator Maclay further relates that "according to [Lee's) explanation of admiralty
and maritime jurisdiction he would have taken in a Vast Field." MACLAY'S DIARY at 86.
In response to this expansive analysis, Maclay "declared that no force of Construction could
bring [inter alia. "collecting taxes duties imposts") within admiralty or maritime jurisdiction." id. Given the common eighteenth century practice of using American admiralty courts
to enforce revenue laws related to maritime activities, Maclay's insight cannot be taken at
face value. Perhaps he had in mind "collecting taxes duties imposts" that bore no relationship whatsoever to maritime activities.
158. In Landholder VI at 161, Oliver Ellsworth charged that Mason's pamphlet attacking,
inter alia. lower federal courts (see supra note 98 and accompanying text) presented reasons
that had "been revised in New Y-k by R[ichard) H[enry) L[ee) and by him brought into
their present artful and insidious form." Commenting on Mason's pamphlet, George
Washington wrote, the "political tenets of Colo. M. and Col. R.H.L. are always in unison."
Letter from George Washington to James Madison (Oct. 10, 1787), reprinted in 29 THE
WRITINGS OF GEORGE WASHINGTON 285 (1. Fitzpatrick ed. 1942).
159. See, e.g., Letter from Richard Henry Lee to George Mason (Oct. I, 1787), reprinted
in 3 GEORGE MASON PAPERS 996-99.
160. In private correspondence before the Virginia Convention, he opposed the creation offedera! courts with diversity or alienage jurisdiction. Letter from Richard Henry Lee to Edmund
Randolph (Oct. 16, 1787), reprinted in 8 RATIFICATION DOCUMENTS 61, 63 & 66; Letter
from Richard Henry Lee to Samuel Adams (April 28, 1788), reprinted in 9 RATIFICATION
DOCUMENTS 765, 766; Letter from Richard Henry Lee to George Mason (May 7, 1788),
reprinted in 9 RATIFICATION DOCUMENTS 784, 786; Letter from Richard Henry Lee to
Edmund Pendleton (May 26, 1788), reprinted in 9 RATIFICATION DOCUMENTS 878, 881.
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putes.I 61 The apparent inconsistency in Lee's motion vanishes if he-like
Mason l61-thought that the actual business of the federal admiralty courts
would consist primarily of the paradigmatic eighteenth century public law
cases rather than ordinary private litigation.I 63
C. The Course of Federal Admiralty Litigation
While Congress was considering Ellsworth's Judiciary Bill, an experienced state judge predicted that a major part of the proposed District
Court's workload would consist of "Seisures for transgressing the Import
Laws all which necessarily arise on the Sea Coast,"I64 and this prediction
came to pass, A study of the surviving district court files covering the
period 1789 to 1797 indicates that more than half of all the admiralty
cases filed throughout the nation were to enforce federal revenue laws.I65
At the end of the century, Judge Bee of the federal district court in
Charleston, South Carolina, complained, "frequent Petitions are presented
for summary hearings respecting Penalties & Forfeitures under the
Revenue & Excise Laws, & Statements of Suits thereon add much to the
increase of business to the Judges."166 In addition to revenue cases, crimi-.
161. See 3 ELLIOT'S DEBATES 660.
162. See supra notes 104-06 and accompanying text.
163. The public law paradigm also explains Representative Stone's general opposition to
federal trial courts but specific acceptance of federal admiralty courts. He stated and restated
"that admiralty courts are not established in aU the states." II FIRST CONGo HOUSE
DEBATES 1383. Accord, id at 1372. Therefore he accepted federal admiralty courts as a
pragmatic necessity. Stone probably was thinking of sui generis prize litigation that was
quite foreign to the common law. The state common law courts clearly were available to try
the paradigmatic civil suit of a mariner's claim for wages. See, e.g., Talbot v. Commanders
and Owners of Three Brigs, I U.S. (1 Dall.) 95,100 (Pa. 1784) ("even in the case of wages,
justly a favorite object of admiralty jurisdiction, mariners may sue for them at common
law"). Accord, J. HALL, THE PRACTICE AND JURISDICTION OF THE COURT OF
ADMIRALTY 7-8 (1809). Indeed, the common law courts were open to virtually aU ordinary private maritime claims. See supra notes 56 & 129.
164. Letter from Richard Law to Oliver EUsworth (July 14, 1789) (Conn. Hist. Soc.). The
revenue cases coupled with the ordinary run of eighteenth century admiralty litigation led
Judge Law to recommend the "Principle Sea ports... as the most convenient and proper situation for holding [district] courts."
165. D. HENDERSON, COURTS FOR A NEW NATION 55 (1971). [hereinafter cited
HENDERSON STUDY]. In a subsequent chapter, Henderson indicates that the civil admiralty dockets for the years 1797-1801 followed the patterns established during Washington's
administration. [d. ch. Xl.
166. Letter from Thomas Bee to Members of the Senate for South Carolina in Congress (Feb.
3, 1800) (Univ. South Carolina) [hereinafter cited Judge Bee's Letter]. Judge Bee's letter was written at the suggestion of the federal district judge in Pennsylvania as part of a plan to obtain salary
increases for the judges in the major commercial states. See Letter from Thomas Bee to Richard
Peters (Feb. 2,1800) (Library of Congress).
Judge Bee clearly emphasized revenue cases as a time consuming aspect of his workload, and
Henderson reports that 58% of the litigation in Judge Bee's court were revenue cases. HENDERSON STUDY at 145 n.\. But only 5% of the cases that Judge Bee reported in his
REPORTS OF CASES ADJUDGED IN THE DISTRICf COURT OF SOUTH CAROLINA
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nal prosecutions constituted a significant part of the lower courts' maritime jurisdiction.I 67 A substantial majority of the criminal prosecutions
commenced in the federal courts "in 1790 and the years immediately following ... stemmed from actions occurring at sea."168 These cases ran the
gamut from assault and battery to piracy.I 69
Although cases of capture were politically sensitive and involved
large sums of money, they accounted for a fairly small percentage of the
federal district courts' caseloads.170 In contrast, prize cases arising from
the wars following the French Revolution utterly dominated the Supreme
Court's appellate jurisdiction over maritime cases.I71 During the years
1789 to 1801, thirty-five admiralty cases were lodged with the Court.
Twenty-seven were privateer cases, four were revenue cases, three were
miscellaneous civil actions, and the nature of the remaining case is
unknown.
A clear majority of the civil admiralty litigation in the district courts
involved revenue cases or privateers, but the federal admiralty courts also
tried a significant number of civil actions arising from ordinary maritime
contracts, claims, and services. In In this category, "[l]ibels relating to
seamen's wages were quite numerous."173 In Judge Bee's court in
Charleston, "scarce a week passed without one or more applications
respecting Seamens Wages which [were] in general very litigious
SuitS."174 As late as 1825, the nation's preeminent admiralty scholar was
(1810) were revenue cases. This discrepancy may be due to his belief Ihat revenue cases
were "not strictly within the line of [Judges'] Judicial Functions, as they in such cases only
act ministerially." Judge Bee's Letter.
167. See HENDERSON STUDY ch. VII. Although the District Courts had jurisdiction
over minor maritime crimes, virtually all maritime crimes were prosecuted in the Circuit
Courts.
168. ld. at 65.
169. SeeM.
170. See id. at 58-61. The HENDERSON STUDY does not indicate the number of prize
proceedings actually commenced in the District Courts. Judge Bee's Letter does not mention
cases of capture as a significant aspect of his work load. Nevertheless 38% of the cases that
Judge Bee subsequently selected for publication in his Reports are cases of capture. Perhaps
Judge Bee's Letter was written to describe his actual workload rather than the importance of
the cases he was trying.
171. J. GOEBEL, HISTORY OF THE SUPREME COURT OF THE UNITED STATES:
ANTECEDENTS AND BEGINNINGS TO 1801, at 803 Table II (1971).
172. See HENDERSON STUDY at 57.
173. ld.
174. Judge Bee's Letter. In the District of New York, about half of the admiralty cases
involved seamen's wages. See 2 THE LAW PRACTICE OF ALEXANDER HAMILTON
788 (1. Goebel ed. 1969). The District of Maryland was even more extreme. During the first
50 years of the Maryland District Court's history two thirds of the litigation were mariners'
claims for unpaid wages. See Owen, Earliest Activities as a Court of Admiralty, 50 MD L.
REV. 45, 47 (1991). The remaining third consisted primarily of admiralty litigation to
enforce customs and navigation laws. ld. at 47-48.
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still using "maritime contracts for wages" as the prototypical private
admiralty case. 175 In deciding these suits, federal judges tended to adopt
rules of decision that would promote and protect the maritime industry.l76
But this unsurprising post hoc development simply suggests the judges'
affinity to commercial interests and is, at most, indirect circumstantial
evidence of the origins of federal admiralty jurisdiction.
The initial decade of federal admiralty litigation more or less conformed to the eighteenth century paradigm. Nevertheless by the end of the
next century, the concept of admiralty jurisdiction had experienced a sea
change. Private claims predominated, and the old paradigm of public litigation had almost faded from sight. l77 This remarkable shift already was
in progress at the beginning of the nineteenth century.178
A full discussion of the abandonment of the old paradigm of public
law cases in favor of the new one of private disputes is beyond the scope
of this brief essay. Nevertheless, a few major factors are worth noting.
Throughout the nineteenth century, customs duties continued to playa
significant, albeit somewhat diminished, role in financing the federal government's operations. 179 Prize litigation involving privateers-the epitome of eighteenth century admiralty jurisdiction-had lapsed into desue175. The Steamboat Thomas Jefferson, 23 U.S. (10 Wheat.) 428, 430 (1825) (Story, J.).
176. See e.g., S. PRESSER & J. ZAINALDIN, LAW AND JURISPRUDENCE IN
AMERICAN HISTORY 144-51 (2d ed. 1989) (discussing three early admiralty cases decided by Judge Peters in Philadelphia). See also S. PRESSER, THE ORIGINAL MISUNDERSTANDING 56-61 (1991).
177. .See, e.g., 1 C.J. Admiralty (1914); E. BENEDICT, THE AMERICAN ADMIRALTY § I (3d ed. 1894). The Corpus Juris article on admiralty devotes twenty-five pages to the
subject matter jurisdiction of the Admiralty courts. Twenty-two of the pages are devoted to
civil actions, three pages are devoted to prize and revenue cases, and criminal law is not covered.
178. For example when Judge Bee described his admiralty docket in 1800, he emphasized revenue cases and wage claims, but he also stated that "Many Cases Occur respecting
Salvages, Hypothecations, & Bottomy, most of which are contested & of cause take up
much time." Judge Bee's Letter. Six years later, Judge Peters in Philadelphia wrote that
commercial cases were an important aspect of his admiralty docket. Preface, I Peters'
Admiralty Decisions iv (1807). See also J. HALL, THE PRACTICE AND JURISDICTION
OF THE COURT OF ADMIRALTY xvii (1809); 3 J. STORY, COMMENTARIES ON
THE CONSTITUTION OF THE UNITED STATES §§ 1660-67 (1833).
179. In contrast to the almost total reliance upon customs in the early years (see supra
note 92), customs accounted for 40-60% of government receipts in the forty years during
and after the Civil War. D. DEWEY, FINANCIAL HISTORY OF THE UNITED STATES
tables, at 299, 399, & 474 (1936). As late as 1831, the author of a treatise on federal courts
could still write with confidence that, "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 impost, navigation, or trade." A. CONKLING, TREATISE ON THE ORGANIZATION, JURISDICTION AND PRACTICE OF
THE COURTS OF THE UNITED STATES 130 (1831). Similarly, the only categories of
admiralty litigation specifically addressed by Judge Betts in his 1838 summary of admiralty
practice were prize cases, revenue cases, and claims for seamen's wages. S. BETTS, A
SUMMARY OF PRACTICE IN INSTANCE, REVENUE AND PRIZE CAUSES, IN THE
ADMIRALTY COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF NEW YORK ch. XI-XIII (1838).
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tude by the end of the nineteenth century. 180 The United States did not use
privateers after the War of 1812. 181 Nor was the practice popular in
Europe where it was formally outlawed in 1856 by the Declaration of
Paris. 182
At the same time that prize litigation was fading from sight, the
Nation's commercial development coupled with two doctrinal innovations
in admiralty jurisdiction worked a radical expansion of the federal courts'
private maritime caseloads. At the beginning of the century, Justice Story
rejected restrictive English precedent in De Lovio v. Boit,183 He held that
civil admiralty jurisdiction under the Constitution and the Judiciary Act
encompassed all maritime torts and all contracts that "relate to the navigation, business, or commerce of the sea."184 At mid-century the Supreme
Court rejected the idea of limiting admiralty jurisdiction to tidal waters.
Beginning with The Propeller Genesee Chief v. Fitzhugh,185 the Court
expanded federal admiralty jurisdiction inland to all navigable waters,186
These doctrinal changes paralleled radical changes in American
commerce. The marine insurance industry in the United States began in
the 1790's and "immediately advanced with almost inconceivable rapidity."187 Justice Story's opinion in De Lovio dealt specifically with a contract for marine insurance and opened the federal admiralty courts to this
important and burgeoning segment of commercial litigation. Similarly
beginning in the early nineteenth century, the westward movement cou180. Some prize cases were still being litigated. See. e.g .• The Prize Cases, 67 U.S. (2
Black) 635 (1862); The Paquete Habana, 175 U.S. 677 (1900). These cases, however,
involved captures by the regular Navy rather than by privateers.
181. For the War of 1812, see the engaging J. GARITEE, THE REPUBLIC'S PRIVATE
NAVY (1977). During the war with Mexico neither the United States nor Mexico used privateers. See H. HALLECK, INTERNATIONAL LAW 392 (1861). Nor did the United
States use privateers in the Civil War and the Spanish American War. See Letter from
Secretary of State Seward to Lord Lyons (Jan. 4. 1864). excerpted in 7 J. MOORE, A
DIGEST 017 INTERNATIONAL LAW 538 (1906); Telegram from Secretary of State
Sherman to Mr. Hay (Ap. 23, 1898); excerpted in 7 J. MOORE, A DIGEST OF INTERNATIONAL LAW 558 (1906).
182. See generally F. STARK, THE ABOLITION OF PRIVATEERING AND THE
DECLARATION OF PARIS (1897).
183. 7 Fed. Cas. 418 (C.C.D. Mass. 1815) (No. 3776). For an excellent and detailed discussion of this case, see G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-35, at 428-44 (1988).
184. Id. at 444. Justice Story's rationale was formally adopted by the Supreme Court in
Insurance Co. v. Dunham. 78 U.S. (II Wall.) I (1871).
185. 53 U.S. (12 How.) 443 (185\).
186. For three excellent discussions, see C. SWISHER, THE TANEY PERIOD 1836-64,
ch. XVIII (1974); Note, From Judicial Grant to Legislative Power: The Admiralty Clause in
the Nineteenth Century. 67 HARV. L. REV. 1214 (1954); Conover, The Abandonment of the
'Tidewater" Concept of Admiralty Jurisdiction in the United States. 38 ORE. L. REV. 34
(1958).
187. Story, Book Review. 20 N. AM. REV. 47, 71 (1825). See also Fletcher, The General
Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine
Insurance. 97 HARV. L. REV. 1513, 1554-58 (1984).
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pled with the invention of the steamboat generated a vast expansion of
riverene commerce. Steamboats exploded and collided. Contracts of all
kinds related to the new commerce on inland waters were made and
breached. Thanks to De Lavia and The Genesee Chief. this vast array of
private disputes had a major impact upon the federal maritime docket.
The gross expansion of federal admiralty jurisdiction worked by The
Genesee Chief and De Lavia consisted almost entirely of private civillitigation. By definition. the De Lavia rationale was limited to insurance
claims. In theory the new riverene litigation might have encompassed
public as well as private disputes, but in practice virtually all of the new
inland admiralty cases must have arisen from private disputes. 188 No
prizes were taken on inland waters after the War of 1812, and Congress
did not enact criminal laws regulating conduct on inland waters.l 89
III. CONCLUDING THOUGHTS
The eighteenth century paradigm of admiralty litigation-unlike the
modem paradigm-was not monolithic. The Founding Generation clearly
understood that admiralty courts frequently adjudicated private maritime
claims. The adjudication of private disputes, however, occupied a comparatively unimportant place in their vision of admiralty jurisdiction, In
their eyes, three discrete categories of public litigation were far more significant.
This forgotten vision of admiralty jurisdiction had enormous implications for the creation of a nationwide system of federal trial courts. In discussing the need for national admiralty courts, the advocates of an extensive federal judicial system specifically addressed prize cases, criminal
prosecutions, and revenue cases. In contrast, the adjudication of private
claims were never mentioned as a justification. The opponents of an extensive federal judiciary apparently shared this public vision of admiralty
jurisdiction. They specifically feared that the federal courts would supplant
the state courts' authority over private disputes. Nevertheless even "the
most bigotted idolizers of state authority" did not resist the creation of federal admiralty courts. These opponents of federal courts-like the proponents-must not have thought of federal admiralty jurisdiction in terms of
private litigation. Therefore even those who generally opposed an extensive federal judiciary accepted the need for a system of federal trial courts.
188. In the Genesee Chief. the Court noted - with probable reference to the War of
I812-that "[h]ostile fleets have encountered on [the inland waters of North America). and
prizes been made." 53 U.S. (12 How.) at 453. But except for that war and the Civil War.
there has never been any riverene warfare in North America. During the Civil War. the
United States did not use privateers (see supra note 181). nor did the Congress permit
United States naval forces to take prizes on "any of the inland waters." Act of July 2. 1864,
38th Congo 1st Sess., Ch. 225, § 7, 13 Stal. 375, 377.
189. See J. ROSE. JURISDICTION AND PROCEDURE OF THE FEDERAL COURTS
§ 99 (3d. ed. 1926).
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Those who have puzzled over the origins of federal admiralty jurisdiction have simply asked the wrong question. The apparent mystery is
easily explained as a parallax caused by the shift from the eighteenth century paradigm of public litigation to the current paradigm of private litigation. Today we read the Constitution's admiralty clause as a head of jurisdiction over private claims. Two hundred years ago the predominant purpose of the same provision was to use a short and straightforward clause
of seven words to assure a comprehensive federal admiralty jurisdiction
over cases of capture, crimes on the high seas, and cases of revenue.
Asking what the Founding Generation thought about federal admiralty jurisdiction over private claims is a fruitless question. When they
thought of federal admiralty jurisdiction, they thought of public-not private-litigation. They undoubtedly understood that admiralty courts also
adjudicated private claims, but they did not envision private litigation as
an essential part of the federal maritime docket. When eighteenth century
Americans like Edmund Randolph specifically addressed private maritime
litigation, they casually dismissed private claims as relatively unimportant
disputes that could be safely entrusted to the state courts.
Those who seek the origins of federal admiralty jurisdiction over private maritime claims should tum from the eighteenth century to the nineteenth century. The two pivotal events l90 in the history of federal admiralty jurisdiction were De Lovio and The Genesee Chief In each case, the
court rejected restrictive English precedents in favor of a new and quite
expansive American rule.
Justice Story's magisterial decision in De Lovio has been criticized
as slighting English and even colonial precedent in which common law
courts used writs of prohibition to restrict the admiralty and vice-admiralty courts' jurisdiction. His rejection of the English precedent, however,
was quite consistent with the common idea among eighteenth century
Americans that the English common law should be adopted in America
only insofar as it was suitable to American conditions. 191 Even the somewhat embarrassing American colonial practice of issuing writs of prohibition to the vice-admiralty courts did not present serious problems. Under
190. Of course the insertion in the Constitution of an admiralty clause broad enough to
encompass private litigation was a sine qua non to the modem world of admiralty litigation.
Perhaps someone like James Wilson consciously opted for a provision that would include
commercial litigation. We probably will never know. The choice of language by the
Committee of Detail can be explained with more plausibility as a matter of style.
191. See Casto, The Erie Doctrine and the Structure of Constitutional Rel'Olutions. 62
TULANE L. REV. 907, 937 (1988). Needless to say, American conditions did not always
dictate a deviation from the English common law. For example, in an unreported 1796 decision, the Supreme Court apparently relied upon English precedent when it issued a common
law writ of prohibition barring further proceedings in Smith v. Macauley and the Ship
Charles Carter (U.S.D.C. Va. filed Jan. 6, 1796). See Minutes of the Supreme Court of the
United States (February Term. 1796), reprinted in7 AM.J. LEGAL HIST. at 78, 80-81 & 81
(1963); [hereinafter cited Supreme Court Minutes]. William Paterson's Notes of Oral
Argument in the Smith Prohibition (William Paterson Collection, William Paterson College)
[hereinafter cited Paterson's Notes].
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the predominant legal theory of the early nineteenth century, Story probably viewed his careful and exhaustive analysis as an illumination of a preexisting natural law. ln From this viewpoint some colonial judges had
simply failed to understand the law and had erred when they issued the
writs of prohibition. Given the breadth of the Constitution's admiralty
clause and the total absence of any apparent purpose regarding private
maritime litigation, Story's somewhat freewheeling analysis seems appropriate.
The Genesee Chief is easily justified and explained on essentially the
same grounds. After the Constitution was ratified, many capable lawyers
assumed that admiralty jurisdiction could rise no higher than the tides,193
But the Constitution clearly was neither drafted nor ratified with this limitation specifically in mind. When confronted with the explosion of
riverene commerce in the nineteenth century, the Supreme Court simply
rejected the restrictive English doctrine as unsuited to changed circumstances in the New World.
******
Constitutional history occasionally provides valuable guidance and
insights for divining or creating law in the late twentieth century. The origins of the Constitution's admiralty clause, however, illustrate the need
for caution in sifting through two hundred year old records for answers to
modem questions. The sin of present-mindedness can radically distort our
understanding of the past. Today we equate admiralty jurisdiction with the
resolution of private disputes, but in the eighteenth century no one had
this modem vision of maritime litigation.
Even if we momentarily manage to set aside anachronistic modem
paradigms and catch a glimpse of the Constitution as the Founding
Generation saw it, what we see may be hopelessly archaic. The Founding
Generation's vision of maritime activities was dominated by privateers,
smugglers, and pirates. Men like Edmund Randolph and Oliver Ellsworth
lived in a maritime world so different from the present that their purpose
The SmiIh case involved a libel filed by a Virginian shipbuilder against a fellow Virginian
to enforce a mortgage securing a contract for the construction of a ship. In response, the
defendant immediately sought a writ of prohibition in the Supreme Court as authorized by §
13 of the Judiciary Act. In England, the admiralty courts clearly lacked jurisdiction to
enforce a contract for the construction of a ship. See Paterson's Notes. Accord, People's
Ferry Co. of Boston v. Beers, 61 U.S. (20 How.) 393 (1857). Either the defendant's counsel
argued or perhaps Justice Paterson decided that the admiralty and maritime jurisdiction created by the Judiciary Act "referred to an existing law, which was in this instance admeasured
by the law of England. This also the constn of U. States." Paterson's Notes. In any event,
Paterson immediately followed these two sentences with the notation, "Prohibition granted."
[d. Accord, Supreme Court Minutes at 81.
192. Casto, The Erie Doctrine and The Structure of Constitutional Revolutions, 62
Tulane L. Rev. 907, 913-14 (1988).
193. See, e.g., supra notes 17-18 and accompanying text; The Steam Boat Thomas
Jefferson, 23 U.S. (10 Wheat.) 428 (1825) (Story, J.).
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in creating federal admiralty courts has virtually no relevance in the late
twentieth century.l94 The most that can be said is that the drafters and ratifiers of the Constitution's admiralty clause knew thanhe clause's general
language encompassed private disputes but gave little thought to the matter. This combination of knowledge and indifference could be viewed as a
license for future generations to shape admiralty jurisdiction according to
future values and needs.
APPENDIX
While the JUQiciary Act of 1789 was at a very early drafting stage,
Judge David Sewall of Massachusetts recommended to Senator Caleb
Strong, who was a member of the Senate drafting committee, that
A maritime or Admiralty Court whose proceedings are according to the Course
of the Civil Law, must be erected from some quarter-and suppose the Territory of
United States divided into a number of districts in the division of which no regard
is had to the boundarys of particular States, in these several districts suppose
Admiralty Judges resident, and in whose Courts all Seizures of property for
breach of the acts of Trade and Revenue where the process is in rem may be
determined-and from these Admiralty Courts let an appeal lie in causes to a certain limited Value to the SJ. of the U.S.:and as their divisions may be considerably large Territories let the Admiralty Courts be ambulatory in their respective
districts. As the Laws of Trade and Commerce are to be uniform and made by
Congress. there can be no need of any State Admiralty. or maritime Courts; let
the admiralty courts Jurisdiction be so fully plainly and clearly defined, as to give
full speedy and effectual remedy in all matters within their jurisdiction. And
When a Felony or Piracy committed on the high Seas is to be determined some
mode should be devised for providing a Jury-unless the admiralty Judge is joined
to the Supreme Judicial of the State as the case has been under the old
Confederation. 195
Judge Sewall's express reference to revenue collection cases and criminal
prosecutions is an unexceptional restatement of the eighteenth century
public law paradigm of federal admiralty, but his mention of "Laws of
Trade and Commerce" might, at fIrst glance, be read as a reference to private commercial litigation
The most plausible interpretation of Judge Sewall's recommendation
is to read the underscored language as referring to a single subset of maritime cases that should be placed within the federal courts' admiralty
194. The members of the first Congress almost certainly did not have in mind the highly
technical in rem/in personam dichotomy when they voted for the "saving to suitors" clause.
To them the most reasonable interpretation of the clause would have been to permit state
common law courts to adjudicate virtually any private maritime dispute without regard to the
nature of the court's process. This original understanding, however, seems unsuited to the
late twentieth century. Cf. ALI, STUDY OF THE DIVISION OF JURISDICTION
BETWEEN STATE AND FEDERAL COURTS 234-38 (1969). Certainly the courts should
not undertake such a drastic revision. If ever there was a case of Congressional ratification
of an erroneous statutory interpretation, the in rem/in personam dichotomy is it.
195. Letter from David Sewall to Caleb Strong (Mar. 28, 1789) (Forbes Library,
Massachusetts) (Emphasis added). For a more extensive excerpt of this letter, see Holt's
Study at 1529-30.
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jurisdiction. The first part of the underscored language recommends that
cases arising under federal trade and revenue statutes should be treated as
admiralty litigation, and the second part tells us why. In other words,
"Laws of ... Commerce" does not refer to laws regulating private commercial transactions. Instead Judge Sewall was using "Commerce" as a
synonym for "Revenue."
This merger of revenue into commerce was fairly common in eighteenth century discussions of federal powers under the Constitution. For
example, in Federalist No. 45, James Madison noted that the proposed
federal government would have the power to regulate "foreign commerce;
with which ... the power of taxation will for the most part be connected."196 Judge Sewall's letter, itself, indicates that he was not thinking of
laws regulating private commercial transactions. He was specifically
referring to "Laws of Trade and Commerce [that would] be uniform and
made by Congress." The laws regulating commercial maritime transactions were customary unwritten laws rather than positive written regulations enacted by a legislative body like the Congress. His reference to uniformity almost certainly related to the serious problem in the era of the
Confederacy of disuniform customs duties.l 97 At the ratifying convention
in Judge Sewall's home state of Massachusetts, a delegate had noted, "As
to commerce, it is well known that the different states now pursue different systems of duties in regard to each other."198
196. THE FEDERALIST NO. 45 at 313 (J. Madison) (1. Cooke ed. 1961). Accord, id.
No. 42, at 283. Alexander Hamilton expressed the same understanding and a similar merging of the power to raise revenue with the power to regulate foreign commerce. 2 ELLIOT'S
DEBATES at 350. This same merging of revenue powers with commerce powers also is
found in The Address and Reasons of Dissent of the Minority of the Convention of the State
of Pennsylvania to their Constituents (1788), reprinted in 15 RATIFICATION DOCUMENTS 13. 14; Letter from Gaspard Duches to Conte de la Luzerne (Feb. 2, 1788), reprinted in 16 RATIFICATION DOCUMENTS 11. 13; A Citizen of the United States (1788),
reprinted in RATIFICATION DOCUMENTS 115; Letter from Harry Innes to John Brown
(Feb. 20, 1788), reprinted inl6 RATIFICATION DOCUMENTS 152, 153; Williamson.
Speech at Edenton (1788), reprinted in 16 RATIFICATION DOCUMENTS 201, 204;
Petition from Samuel McDowell et al. to the Court of Fayette County, Ky. (Feb. 28. 1788),
reprinted in 16 RATIFICATION DOCUMENTS 261. 262. This brief compilation is merely
a representative sampling of word usage and is by no means exhaustive.
197. See THE FEDERALIST NO. 42, at 283 (1. Madison) (J. Cooke ed. 1961).
198. 2 ELLIOT'S DEBATES 58.
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