Additional light on the origins of federal admiralty jurisdiction

Journal of Maritime Law and Commerce

Volumn 31, Issue 1, 2000, Pages 143-161

  Casto, William R ^a  

^a NONE

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EID: 0034418737     PISSN: 00222410     EISSN: None     Source Type: Journal    
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References (87)

1. See Casto, The Origins of Federal Admiralty Jurisdiction in an Age of Privateers, Smugglers, and Pirates, 37 Am. J. Legal Hist. 117 (1993) [hereinafter cited as Origins]. See also W. Casto, The Supreme Court in the Early Republic 38-43 (1995) [hereinafter cited as Early Republic].
2. See Casto, The Origins of Federal Admiralty Jurisdiction in an Age of Privateers, Smugglers, and Pirates, 37 Am. J. Legal Hist. 117 (1993) [hereinafter cited as Origins]. See also W. Casto, The Supreme Court in the Early Republic 38-43 (1995) [hereinafter cited as Early Republic].
3. See Du Ponceau, The Bill for the organization of the Judicial Department [c. 1789] (reprinted infra at Appendix). This undated essay, which is in the Miscellaneous Manuscripts Collection of the American Philosophical Society in Philadelphia, Pennsylvania, was written by Du Ponceau probably in the late spring or early summer of 1789. His reference to the "Bill for the organization of the Judicial Department being now before Congress" refers to the bill that later that year became the Judiciary Act of 1789. Admiralty jurisdiction was an important topic covered by the Judiciary Act, and in June of that year Pennsylvania's senators sought advice from members of the Philadelphia bar on the proper framing of the judiciary. See 4 Documentary History of the Supreme Court of the United States, 1789-1800, at 406 n. 1 (M. Marcus ed. 1992). Du Ponceau, who was a member of the Philadelphia bar, may have penned his thoughts in response to these requests. The essay also may have been written when the Federalists reorganized the judiciary in 1801. This possibility, however, seems unlikely because the essay makes no reference to the Judiciary Act of 1789 or to the course of federal admiralty litigation in the 1790s. Regardless of whether the essay was written in 1789 or 1801, it provides valuable evidence of the Founders' understanding of admiralty jurisdiction.
4. See Du Ponceau, The Bill for the organization of the Judicial Department [c. 1789] (reprinted infra at Appendix). This undated essay, which is in the Miscellaneous Manuscripts Collection of the American Philosophical Society in Philadelphia, Pennsylvania, was written by Du Ponceau probably in the late spring or early summer of 1789. His reference to the "Bill for the organization of the Judicial Department being now before Congress" refers to the bill that later that year became the Judiciary Act of 1789. Admiralty jurisdiction was an important topic covered by the Judiciary Act, and in June of that year Pennsylvania's senators sought advice from members of the Philadelphia bar on the proper framing of the judiciary. See 4 Documentary History of the Supreme Court of the United States, 1789-1800, at 406 n. 1 (M. Marcus ed. 1992). Du Ponceau, who was a member of the Philadelphia bar, may have penned his thoughts in response to these requests. The essay also may have been written when the Federalists reorganized the judiciary in 1801. This possibility, however, seems unlikely because the essay makes no reference to the Judiciary Act of 1789 or to the course of federal admiralty litigation in the 1790s. Regardless of whether the essay was written in 1789 or 1801, it provides valuable evidence of the Founders' understanding of admiralty jurisdiction.
5. See Gutoff, Original Understandings and the Private Law Origins of the Federal Admiralty Jurisdiction: A Reply to Professor Casto, 30 J. Mar. L. & Com. 361 (1999) [hereinafter cited as Critique].
6. Origins, supra note 1, at 153.
7. Professor Gutoff provides an extended excerpt of the Report because "the series in which the report is reproduced is relatively rare." Critique, supra note 3, at 369 n.49. Presumably the "rare series" is the American State Papers published in the first half of the 19th century. For a modern edition of the Report, including extensive editorial notes, see Marcus, supra note 2, at 122-67. In the present note, all page references to Randolph's Report are from this modern edition.
8. He does quibble with my original study's treatment of revenue cases and "mariners' wages &c." as separate categories. See Critique, supra note 3, at 368-69. In fact, they clearly are separate categories, and Attorney General Randolph treated them as functionally different. Presumably he lumped them together because neither revenue cases nor "mariners' wages &c." fit traditional English theory about the proper scope of admiralty jurisdiction. See Origins, supra note 1, at 133 n.87 (revenue cases), and infra at Appendix ("mariners' wages &c").
9. Critique, supra note 3, at 369.
10. My original study speculated that James Wilson wished to expand the federal admiralty courts' jurisdiction over commercial disputes. See Origins, supra note 1, at 134 & 135. Peter Du Ponceau also had a modern vision of admiralty jurisdiction. See infra at Appendix.
11. Randolph's Report, supra note 5, at 129.
12. Id.
13. Du Ponceau's essay replicates Randolph's division of private disputes into causes arising wholly at sea and "mariners' wages &c." Du Ponceau gives a more detailed account of the later category, which includes "Mariners' Wages, foreign Bottomries in some cases & a few more trifling objects." See infra at Appendix. The problem with these cases is that they typically involve agreements formed on land. A captain hires sailors at dockside or in a tavern. Money is borrowed and a security interest in the ship (i.e., a bottomry bond) is given in the lender's office. Therefore, these cases clearly do not arise wholly at sea. Du Ponceau explained that these "trifling" cases came into admiralty jurisdiction "from the necessity of the thing" and were "winked upon by the Courts of Common Law." Id.
14. G. Gilmore & C. Black, The Law of Admiralty 10 (2d ed. 1975). Accord D. Robertson, Admiralty and Federalism ch. 3 (1970); T. Schoenbaum, Admiralty and Maritime Law 15 (1st ed. 1987) (The English Admiralty Court "became a minor judicial body with little to do.").
15. G. Gilmore & C. Black, The Law of Admiralty 10 (2d ed. 1975). Accord D. Robertson, Admiralty and Federalism ch. 3 (1970); T. Schoenbaum, Admiralty and Maritime Law 15 (1st ed. 1987) (The English Admiralty Court "became a minor judicial body with little to do.").
16. G. Gilmore & C. Black, The Law of Admiralty 10 (2d ed. 1975). Accord D. Robertson, Admiralty and Federalism ch. 3 (1970); T. Schoenbaum, Admiralty and Maritime Law 15 (1st ed. 1987) (The English Admiralty Court "became a minor judicial body with little to do.").
17. See Gutoff, Admiralty, Article III, and Supreme Court Review of State-Court Decisionmaking, 70 Tul. L. Rev. 2169, 2176 n.21 (1996).
18. See H. Knott, Du Ponceau, Pierre Etienne, in 5 Dictionary of National Biography 525 (A. Johnson & D. Malone eds. 1930).
19. See infra at Appendix.
20. Id. The word "exclusive" has been added to indicate Du Ponceau's understanding of the common law practice of issuing writs of prohibition against admiralty litigation within the common law courts' jurisdiction.
21. See Randolph's Report, supra note 5, at 129.
22. Id. Randolph had advanced the same analysis in a 1779 legal opinion rendered to Virginia's Governor Thomas Jefferson. See Edmund Randolph to Thomas Jefferson (Nov. 13, 1779), reprinted in 3 The Papers of Thomas Jefferson 184 (J. Boyd ed. 1951).
23. Critique, supra note 3, at 401.
24. Id. at 383. See also id. at 375 & 386.
25. Professor Gutoff refers to an entry entitled "Admiral" in Jacob's Law Dictionary that provides a general discussion of admiralty. See Critique, supra note 3, at 382-83. He notes that this entry only refers to issues of prize "in a secondary matter" and therefore deduces that "the founding generation . . . would have had a model of admiralty that was based largely, if not solely, on private litigation." Id. at 383. This anachronistic reading ignores Jacob's other discussions of admiralty law in entries entitled "Prize," "Privateers," and "Pirates." Revenue is not treated as a subject of admiralty law in Jacob's because Jacob's is a dictionary of English law. In North America, the colonial vice-admiralty courts routinely tried revenue cases, but in England revenue cases had to be tried in the Exchequer - not the Admiralty. See Origins, supra note 1, at 133 n.87.
26. See Glass v. The Sloop Betsy, 3 U.S. (3 Dall.) 6 (1794). The Justices were unanimous on this point and specifically emphasized that they were "decidedly of opinion, that every District Court in the United States, possesses all the powers of a court of Admiralty, whether considered as an instance, or as a prize court. . . ." Id. at 16.
27. Origins, supra note 1, at 147.
28. Id. at 138. Professor Gutoff ignores the superlative "most" and instead writes, "Hamilton may have believed that private disputes were also important." Critique, supra note 3, at 373.
29. Origins, supra note 1, at 128-29.
30. Id. at 150.
31. Id. at 124 & 136.
32. Critique, supra note 3, at 385.
33. Otho Williams to David Humphries (May 12, 1789) (quoted in Early Republic, supra note 1, at 39). Williams was a distinguished Revolutionary War officer who three months later became Collector of the port of Baltimore.
34. Origins, supra note 1, at 133-34.
35. Id. at 149. Instead of addressing Judge Bee's experience in South Carolina, Professor Gutoff elects to rely upon an incomplete survey of 14 cases decided during the first three years of operation of the federal district court for New York. Critique, supra note 3, at 385 n.104. His conclusion that, "In New York, most revenue cases do not appear to have generated much activity" is suspect to say the least. He elects not to mention the fact that Judge Hough, in his study of New York admiralty courts, noted that during the immediately preceding years more than half of the state admiralty court's business was taken up by revenue cases. Origins, supra note 1, at 127 n.52. Professor Gutoff also cites an 1842 admiralty treatise for the proposition that revenue cases were not really a part of admiralty jurisdiction. Critique, supra note 3, at 385 n.104. He chooses, however, not to mention the fact that the first edition of this same treatise, published in 1831, stated, "By far the most important class of [civil admiralty cases other than prize cases], so far as they have as yet been authoritatively and definitively determined, is that of all seizures under laws of import, navigation, or trade." Origins, supra note 1, at 151 n.179 (quoting the first edition).
36. Critique, supra note 3, at 400-01.
37. Origins, supra note 1, at 120 (Edmund Randolph); id. at 131 (Virginia Plan at the Constitutional Convention); id. (small states plan at the Constitutional Convention); id. at 147 n.152 (William Smith); id. (Samuel Livermore); id. (Michael Stone); id. at 156 (David Sewall). See also id. at 139 n.114 (James Madison).
38. Id. at 150 (quoting D. Henderson, Courts for a New Nation 65 (1971)).
39. Critique, supra note 3, at 390.
40. Id. at 390-95.
41. The evidence that Professor Gutoff presents on the national security issue is the difficulty that Great Britain had in manning its navy during its wars with France. Id. at 393-94. He notes in particular that "the English notoriously employed impressment." Id. at 394. If the Founders ever thought of this convoluted argument - and undoubtedly they did not - they would have immediately dismissed it. First, the availability of admiralty courts to adjudicate mariners' wages in England obviously did not solve Britain's problem. Second, the British problem was largely a function of dreadful conditions in the lower decks (see id. at 393 n.131) and having to man the largest navy in the world. Third, the United States did not even have a navy, and when it was created in the late 1790s, it was quite small. See 1 R. Love, History of the U.S. Navy 52-61 (1991).
42. Professor Gutoff notes that the first Congress passed an Act for the Government and Regulation of Seamen in the Merchant Service, July 20, 1790, 1 Stat. 131, discussed in Critique, supra note 3, at 395 n. 138. This statute, however, simply evidences the Congress' solicitude toward seamen. Although we may infer from the statute that Congress saw a link between maritime commerce and the fair government and regulation of seamen, nothing in the statute even hints that Congress believed that federal admiralty jurisdiction over mariners' wages implicated a significant national interest. In fact, the statute suggests that the precise opposite is the case. In § 2 of the Act, Congress created a statutory cause of action against any seaman who "shall neglect to render himself on board the ship." The statute went on to provide that the cause of action was enforceable "in any court, or before any justice of [or?] justices of any state, city, town or county within the United States, which, by the laws thereof, have cognizance of debts of equal value." This provision clearly provides for enforcement in State court but apparently excludes federal jurisdiction. In particular, the phrase "laws thereof appears to refer to state rather than federal law. Other provisions of the statute indicate an express willingness to entrust state courts with power to enforce the statute. See §§ 3-7.
43. See Randolph's Report, supra note 5, at 130.
44. Id.
45. See infra at Appendix.
46. Professor Gutoff presents no historical evidence of what the Founders actually thought about this issue. The earliest source that he cites is an 1833 opinion by Justice Story (see Critique, supra note 3, at 396-97 n.146), who was in preadolescence when the first Congress was convened. If one were to conjecture in the absence of historical evidence, it is at least equally plausible that the Founders, who cherished the common law, would have been reluctant to view common law procedure as inferior.
47. See Randolph's Report, supra note 5, at 130.
48. Critique, supra note 3, at 398.
49. Id. at 398 n.151, relying upon Andrews, Vice-Admiralty Courts in the Colonies, in Records of the Vice-Admiralty Court of Rhode Island, 1716-1752, 33 (D. Towle ed. 1936), and Professor Robertson's Admiralty and Federalism, supra note 12, at 83-84. More detailed accounts of this incident are found in F. Caulkins, History of New London, Connecticut 462-68 (1852), and R. Hooker, The Spanish Ship Case (1934). Caulkins' account is a good read.
50. Id. at 398 n.151, relying upon Andrews, Vice-Admiralty Courts in the Colonies, in Records of the Vice-Admiralty Court of Rhode Island, 1716-1752, 33 (D. Towle ed. 1936), and Professor Robertson's Admiralty and Federalism, supra note 12, at 83-84. More detailed accounts of this incident are found in F. Caulkins, History of New London, Connecticut 462-68 (1852), and R. Hooker, The Spanish Ship Case (1934). Caulkins' account is a good read.
51. Id. at 398 n.151, relying upon Andrews, Vice-Admiralty Courts in the Colonies, in Records of the Vice-Admiralty Court of Rhode Island, 1716-1752, 33 (D. Towle ed. 1936), and Professor Robertson's Admiralty and Federalism, supra note 12, at 83-84. More detailed accounts of this incident are found in F. Caulkins, History of New London, Connecticut 462-68 (1852), and R. Hooker, The Spanish Ship Case (1934). Caulkins' account is a good read.
52. Caulkins reports that the Spanish ship "was richly freighted with indigo . . . and had on board sundry chests, boxes and kegs of gold and silver, in bullion and coin." Caulkins, supra note 45, at 462. Eventually the Spanish government formally complained to London, and an official enquiry was conducted. As a result of this embarrassing incident, the governor of Connecticut was turned out of office by the voters, which was virtually unheard of in colonial Connecticut.
53. The most detailed account of the incident clearly indicates that Spain was angry about the theft of property and contains not the slightest suggestion of a protest againt the in rem attachment. Hooker, supra note 45, at 31-33.
54. 10 The Public Records of the Colony of Connecticut 236 (C. Hoadly ed. 1877). Moreover, the libellant withdrew his action a month and a half after the in rem attachment and there is no evidence that the attachment delayed the ship's departure. Hooker, supra note 45, at 28.
55. Like the case of the Spanish ship, none of the other disputes cited by Professor Gutoff led to war, and the prospect of war was not even mentioned in the reports of the disputes. Also, like the Spanish ship, the foreign policy ramifications of each dispute clearly stemmed from the substantive issues involved rather than the coincidental use of in rem attachment. The second dispute offered by Professor Gutoff did not even involve in rem jurisdiction. Sometime during the 1780s, a man allegedly stole a Dutch vessel and cargo and took them to Rhode Island. When the Dutch minister attempted to extradite him back to Holland, the state of Rhode Island refused on the basis that the suspected thief had become a naturalized citizen. Critique, supra note 3, at 398 n.150 (quoting 4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 19 (J. Elliot ed. 1836)). William R. Davie, who described the event during the North Carolina ratification debates, thought that Rhode Island's misconduct demonstrated the need for a national "uniform rule for naturalization." Until Professor Gutoff's article, written more than 200 years later, no one had ever suggested that this incident was relevant to admiralty law or in rem jurisdiction. The third dispute involved two Swedish sailors' claims for wages before the federal district judge in Philadelphia in 1790. Weiberg v. The St. Oloff, 29 F. Cas. 591 (D. Pa. 1790) (No. 17,357). The Swedish captain, with the assistance of Swedish consular officials, argued that the existing treaty between the United States and Sweden gave the Swedish consul "an exclusive jurisdiction in the adjustment of disputes between the captains and their mariners. . . ." Id. at 591. On its face this argument was equally applicable to in personam jurisdiction. Moreover, the case was commenced by citation rather than in rem attachment, so the Swedish captain's argument could not have been a complaint about in rem jurisdiction. Subsequently, the court attached the Swedish vessel, but nothing in the extensive report of the case even suggests that the coincidental attachment altered the Swedish objections. After the attachment, the court initiated contempt proceedings against the Swedish captain, and as Professor Gutoff notes, the United States Attorney was consulted during the contempt proceedings. But contempt proceedings are in personam - not in rem. The fourth dispute proffered by Professor Gutoff is the famous case of The Amistad, 40 U.S. (15 Pet.) 518 (1841). Even Professor Gutoff tacitly admits that the Spanish consuls did not enter the case to protest the exercise of in rem jurisdiction. The consuls' arguments went to the question of ownership of the slaves and not the coincidental use of in rem jurisdiction. In any event, it is difficult to conceive how a dispute that arose in the late 1830s could have influenced the Founding Generation some 50 years earlier. Professor Gutoff also cites Jacob's Law Dictionary for the proposition that "a merchant whose goods or vessel were wrongly condemned could petition his own government, which, if the condemnation were found unjust, might issue letters of marque and reprisal." Critique, supra note 3, at 398. This is a flat misreading of a passage that discusses final judgments rather than in rem attachments. Jacob's Dictionary actually reads: When sentence is given in a foreign Admiralty, the party may libel in Execution of that Sentence here. . . . Sentences of any Admiralty in another Kingdom are to be credited . . . and shall not be examined at Law here: But the King may be petitioned, who may cause the Complaint to be examined; and if he finds just cause, may . . . grant Letters of Marque and Reprisal. The word "sentence" in this passage clearly refers to an admiralty court's final judgement and not to in rem process. If there were any doubt, reliable authority tells us that the word sentence is a technical term of art used to describe civil and criminal judgments of "ecclesiastical and admiralty courts." 9 Oxford English Dictionary 468 (1st ed. 1933).
56. Like the case of the Spanish ship, none of the other disputes cited by Professor Gutoff led to war, and the prospect of war was not even mentioned in the reports of the disputes. Also, like the Spanish ship, the foreign policy ramifications of each dispute clearly stemmed from the substantive issues involved rather than the coincidental use of in rem attachment. The second dispute offered by Professor Gutoff did not even involve in rem jurisdiction. Sometime during the 1780s, a man allegedly stole a Dutch vessel and cargo and took them to Rhode Island. When the Dutch minister attempted to extradite him back to Holland, the state of Rhode Island refused on the basis that the suspected thief had become a naturalized citizen. Critique, supra note 3, at 398 n.150 (quoting 4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 19 (J. Elliot ed. 1836)). William R. Davie, who described the event during the North Carolina ratification debates, thought that Rhode Island's misconduct demonstrated the need for a national "uniform rule for naturalization." Until Professor Gutoff's article, written more than 200 years later, no one had ever suggested that this incident was relevant to admiralty law or in rem jurisdiction. The third dispute involved two Swedish sailors' claims for wages before the federal district judge in Philadelphia in 1790. Weiberg v. The St. Oloff, 29 F. Cas. 591 (D. Pa. 1790) (No. 17,357). The Swedish captain, with the assistance of Swedish consular officials, argued that the existing treaty between the United States and Sweden gave the Swedish consul "an exclusive jurisdiction in the adjustment of disputes between the captains and their mariners. . . ." Id. at 591. On its face this argument was equally applicable to in personam jurisdiction. Moreover, the case was commenced by citation rather than in rem attachment, so the Swedish captain's argument could not have been a complaint about in rem jurisdiction. Subsequently, the court attached the Swedish vessel, but nothing in the extensive report of the case even suggests that the coincidental attachment altered the Swedish objections. After the attachment, the court initiated contempt proceedings against the Swedish captain, and as Professor Gutoff notes, the United States Attorney was consulted during the contempt proceedings. But contempt proceedings are in personam - not in rem. The fourth dispute proffered by Professor Gutoff is the famous case of The Amistad, 40 U.S. (15 Pet.) 518 (1841). Even Professor Gutoff tacitly admits that the Spanish consuls did not enter the case to protest the exercise of in rem jurisdiction. The consuls' arguments went to the question of ownership of the slaves and not the coincidental use of in rem jurisdiction. In any event, it is difficult to conceive how a dispute that arose in the late 1830s could have influenced the Founding Generation some 50 years earlier. Professor Gutoff also cites Jacob's Law Dictionary for the proposition that "a merchant whose goods or vessel were wrongly condemned could petition his own government, which, if the condemnation were found unjust, might issue letters of marque and reprisal." Critique, supra note 3, at 398. This is a flat misreading of a passage that discusses final judgments rather than in rem attachments. Jacob's Dictionary actually reads: When sentence is given in a foreign Admiralty, the party may libel in Execution of that Sentence here. . . . Sentences of any Admiralty in another Kingdom are to be credited . . . and shall not be examined at Law here: But the King may be petitioned, who may cause the Complaint to be examined; and if he finds just cause, may . . . grant Letters of Marque and Reprisal. The word "sentence" in this passage clearly refers to an admiralty court's final judgement and not to in rem process. If there were any doubt, reliable authority tells us that the word sentence is a technical term of art used to describe civil and criminal judgments of "ecclesiastical and admiralty courts." 9 Oxford English Dictionary 468 (1st ed. 1933).
57. See Origins, supra note 1, at 140-49.
58. See id. at 143-44, 145-46 n.142. Under the common law of England, causes arising wholly at sea were beyond the jurisdiction of the common law courts. In contrast, cases like "mariners' wages &c" that had ties to both the land and the sea were within the common law courts' jurisdiction. See Randolph's Report, supra note 5, at 130. Accord Du Ponceau's essay, infra at Appendix.
59. As noted in my original study, the in personam/in rem dichotomy was first used in a treatise on British, rather than American, admiralty law published in Ireland in 1802. The dichotomy did not appear in America until 1820, when a state trial judge relied upon the British treatise. Origins, supra note 1, at 142 n.131.
60. Professor Gutoff does not cite a single case that ever used the in personam/in rem dichotomy, and he concluded that at least one early judge "rejected" it. See Critique, supra note 3, at 390 n.121. He frequently notes that in rem jurisdiction over vessels was unique to admiralty courts and that common law courts used in personam jurisdiction. This clear historic fact, however, does not in any way impeach the origin understanding established in my original study. Founders like Attorney General Randolph fully understood this problem. That is why he thought that state legislation was necessary. Professor Gutoff also challenges my original study's use of Jacob's Law Dictionary to suggest that the word "remedy" in the "saving to suitors" clause did not have to be read as referring to in personam remedies. In this regard, my original study advanced the idea that the word remedy could mean cause of action and therefore the saving to suitors clause could reasonably have been read as preserving concurrent jurisdiction where the common law was competent to supply a cause of action. See Origins, supra note 1, at 146. Professor Gutoff disputes this reading (see Critique, supra note 3, at 389 n.120), but the crucial point is that the meaning of the word remedy is slippery indeed. Given the word's inherent ambiguity, a true understanding of what the "saving to suitors" clause meant in 1789 should be drawn from the uniform rejection of the in personam/in rem dichotomy before and after the clause's enactment.
61. See Origins, supra note 1, at 140-49.
62. Id. at 121 (quoting Randolph's Report).
63. Critique, supra note 3, at 399 n.154. See also id. at 401 n.165.
64. 163 U.S. 537, 552 (1896) (Harlan, J., dissenting).
65. 347 U.S. 483 (1954).
66. 53 U.S. (12 How.) 443 (1851).
67. See Origins, supra note 1, at 151.
68. Critique, supra note 3, at 400.
69. Professor Gutoff also argues that the impact of The Genesee Chief may have been eliminated by the availability of state common law courts to adjudicate claims arising upon inland waters and the advent of railroad transportation. His point - that these two factors diverted claims from the federal courts' expanded jurisdiction - is undoubtedly correct, but is irrelevant unless he means that The Genesee Chief was thereby rendered a dead letter. In analyzing a paradigm shift in admiralty from public litigation to private litigation, the proper comparison is between admiralty jurisdiction before and after The Genesee Chief. Until someone proves otherwise, it is reasonable to indulge a presumption that after The Genesee Chief, the federal courts in Great Lakes ports and other cities (like St. Louis) experienced a significant increase in admiralty claims.
70. 7 F. Cas. 418, 1997 AMC 550 (C.C.D. Mass. 1815) (No. 3,776) (discussed in Origins, supra note 1, at 152-53 & 154-55).
71. Critique, supra note 3, at 399.
72. Id.
73. Origins, supra note 1, at 152 (quoting Justice Story's opinion in De Lovio). Accord Gilmore & Black, supra note 12, at 21, and Schoenbaum, supra note 12, at 57.
74. He does not mention the point made in my original study that the 19th century witnessed a small but significant decline of import duties as a fraction of the federal government's revenue. See Origins, supra note 1, at 151 n.179.
75. Critique, supra note 3, at 401.
76. Id.
77. See supra note 33; Origins, supra note 1, at 151 n.177, 153 n.189.
78. See Critique, supra note 3, at 401-03.
79. Origins, supra note 1, at 151-52.
80. Critique, supra note 3, at 403. In 1899, an embarrassing squabble between an admiral and a commodore influenced Congress to abolish prize money even for naval officers. See Langley, Windfalls of War, 12 Naval Hist. 27 (May/June 1998).
81. Origins, supra note 1, at 124-25.
82. Clearly no one believes, to use Justice Paterson's words, that naval officers are "[a]ctivated by a predatory spirit [and] perpetrate outrages, that shock the moral sense, and disgrace the human character." Id. at 124 (quoting Paterson).
83. The foregoing response to Professor Gutoff does not exhaust the lacunae in his analysis of 18th century admiralty law. For example, he states that the "federal system of admiralty courts in the Dutch Republic [gave the Founders an example of] maritime courts [that] heard all manner of civil disputes." See Critique, supra note 3, at 376. If the issue is what lessons the Founders drew from the Dutch model, the best evidence is James Madison's understanding that the Dutch Republic's federal admiralty courts had "final conuzance of all crimes & prizes at sea [and] of all frauds in customs." Origins, supra note 1, at 139 n.114 (quoting Madison). In other words, Madison viewed the Dutch federal admiralty courts as exemplifying the public-litigation paradigm. Professor Gutoff's analysis of the Dutch admiralty makes no mention of Madison's thoughts on the subject. Similarly, Professor Gutoff states that after the federal judicial system was formed, "litigants started to bring all sorts of private law claims in the federal district courts." Critique, supra note 3, at 384. In the supporting footnote he relies upon a valuable analysis of admiralty litigation in Maryland for the proposition that "[n]early two-thirds of the claims brought in the district of Maryland were private law claims." Id. n.101 (citing Owen, Earliest Activities as a Court of Admiralty, 50 Md. L. Rev. 45, 47 (1991)). Owen's study, however, does not say that "all sorts of private law claims" were being filed in Maryland's new federal admiralty court. To the contrary, Owen states (on the page cited by Professor Gutoff) that "[a]bout two-thirds of the admiralty actions were suits by seamen for unpaid wages." 50 Md. L. Rev. at 47. The distinction between mariners' wages and all other sorts of private law claims is a key aspect of my original study's discussion of public and private litigation, and Owen's article was cited in support of this distinction. See Origins, supra note 1, at 150 n.174 (citing Owen).
84. The foregoing response to Professor Gutoff does not exhaust the lacunae in his analysis of 18th century admiralty law. For example, he states that the "federal system of admiralty courts in the Dutch Republic [gave the Founders an example of] maritime courts [that] heard all manner of civil disputes." See Critique, supra note 3, at 376. If the issue is what lessons the Founders drew from the Dutch model, the best evidence is James Madison's understanding that the Dutch Republic's federal admiralty courts had "final conuzance of all crimes & prizes at sea [and] of all frauds in customs." Origins, supra note 1, at 139 n.114 (quoting Madison). In other words, Madison viewed the Dutch federal admiralty courts as exemplifying the public-litigation paradigm. Professor Gutoff's analysis of the Dutch admiralty makes no mention of Madison's thoughts on the subject. Similarly, Professor Gutoff states that after the federal judicial system was formed, "litigants started to bring all sorts of private law claims in the federal district courts." Critique, supra note 3, at 384. In the supporting footnote he relies upon a valuable analysis of admiralty litigation in Maryland for the proposition that "[n]early two-thirds of the claims brought in the district of Maryland were private law claims." Id. n.101 (citing Owen, Earliest Activities as a Court of Admiralty, 50 Md. L. Rev. 45, 47 (1991)). Owen's study, however, does not say that "all sorts of private law claims" were being filed in Maryland's new federal admiralty court. To the contrary, Owen states (on the page cited by Professor Gutoff) that "[a]bout two-thirds of the admiralty actions were suits by seamen for unpaid wages." 50 Md. L. Rev. at 47. The distinction between mariners' wages and all other sorts of private law claims is a key aspect of my original study's discussion of public and private litigation, and Owen's article was cited in support of this distinction. See Origins, supra note 1, at 150 n.174 (citing Owen).
85. Unless otherwise noted, all quotations in this concluding section are from Du Ponceau's essay. See infra at Appendix.
86. Origins, supra note 1, at 154-56.
87. After Justice Story in effect commenced the implementation of Du Ponceau's vision of expansive admiralty jurisdiction, Justice Johnson strenuously objected because he anticipated a constriction of state court jurisdiction. Justice Johnson explained, "the subject becomes the more serious when it is recollected that Admiralty and maritime causes are exclusively delegated to the government of the United States. The next step, therefore, will be a denial of the jurisdiction of the State Courts over such cases altogether." The Amanda, unreported (C.C.D.S.C. 1822), discussed and quoted in G. White, The Marshall Court and Cultural Change 464-67 (1988). Of course, this problem was avoided when the Supreme Court later ordained that the in personam/in rem dichotomy should be used to construe the saving to suitors clause.