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Published online by Cambridge University Press: 18 July 2014
Since the year 1798, the decisions of Sir William Scott, (now Lord Stowell) on the admiralty side of Westminster Hall, have been read and admired in every region of the republic of letters, as models of the most cultivated and the most enlightened human reason.
James Kent, Commentaries on American Law Vol. 2, (New York: O. Halsted 1827), 526.1. Eisenstein, Elizabeth L., The Printing Press as an Agent of Change (Cambridge: Cambridge University Press 1979), 1:136–59Google Scholar, n. 287. Whether the process would be as embrasive today is more problematic. Reed, Lord, “Foreign Precedents and Judicial Reasoning: the American Debate and the British Practice,” Law Quarterly Review 124 (2008): 253–73Google Scholar.
2. Bourguignon, Henry J., Sir William Scott, Lord Stowell, Judge of the High Court of Admiralty, 1798–1828 (Cambridge: Cambridge University Press, 1987)CrossRefGoogle Scholar; Roscoe, Edward Stanley, Lord Stowell: His Life and the Development of English Prize Law (Boston: Houghton Mifflin, 1916)Google Scholar; Wiswall, F. L. Jr., The Development of Admiralty Jurisdiction and Practice since 1800 (Cambridge: Cambridge University Press, 1970): 4–35Google Scholar; Sankey, Lord, “Lord Stowell,” Law Quarterly Review 52 (1936): 327–44Google Scholar; Randall, H. J., “History of Contraband of War II,” Law Quarterly Review 24 (1908): 449–64Google Scholar; Baker, J. H., Monuments of Endlesse Labours – English Canonists and Their Work 1300–1900 (London: Hambledon, 1998): 125–27Google Scholar; and Sir Holdsworth, William, A History of English Law, 17 vols. (London: Methuen: Sweet & Maxwell, 1964–72): Vol. 13, 668–89Google Scholar.
3. Roscoe, Lord Stowell, ix–x, 22; and McNair, Arnold D., “Dr. Johnson and the Law,” Law Quarterly Review 63 (1947): 302, 312–18Google Scholar.
4. 1 Haggard's Reports 35 (1790). The Consistory Court had jurisdiction in matrimonial and probate matters: Holdsworth quotes Dickens as calling Doctors' Commons “‘a lazy old nook near St. Paul's Churchyard…that has an ancient monopoly in suits about people's wills and people's marriages, and disputes among ships and boats.’” Sir Holdsworth, William S., Charles Dickens as a Legal Historian (New Haven: Yale, 1929)Google Scholar, 30. An account of two matrimonial cases before Scott there can be found in Stone, Lawrence, Broken Lives – Separation and Divorce in England 1660–1857 (Oxford: Oxford University Press, 1993), 162–269CrossRefGoogle Scholar. In “Sir William Scott and the law of marriage,” in Judges and Judging in the History of the Common Law and Civil Law from Antiquity to Modern Times, ed. Brand, Paul and Geltzer, Joshua (Cambridge: Cambridge University Press, 2012), 82–101CrossRefGoogle Scholar, and Marriage Law and Practice in the Long Eighteenth Century – a Reassessment (Cambridge: Cambridge University Press 2009), 60–67Google Scholar, Professor Rebecca Probert is highly critical of one of his leading matrimonial judgments, Dalrymple v. Dalrymple (1811), which was singled out for praise at the time by Justice Joseph Story in his review of “Phillips on Insurance,” North American Review and Miscellaneous Journal 20 (1825)Google Scholar, 47, 67.
5. In 1790, Scott was also elected to the House of Commons representing Downton and in 1801 he was elected to the House of Commons representing Oxford University. He was raised to the peerage as Baron Stowell in 1821. Roscoe, Lord Stowell, x. However, “Lord Stowell was certainly one of the greatest men in the House of Lords during our period, but he exercised not a tithe of the influence in it that was wielded by his brother, Lord Eldon. He was its expert guide when matters of international law or ecclesiastical law were before it, but he had no ambition to be a political leader.” Plucknett, Theodore T. F., “The House of Lords as a Court of Law. 1784–1837,” Law Quarterly Review 52 (1936), 189–224.Google Scholar
6. The sittings of the High Court of Admiralty were moved to a garret above Westminster Hall in 1860, and in 1861 the Doctors' Commons was demolished. Until then, what was left of its traditional jurisdiction remained the exclusive preserve of civilian lawyers. Roscoe, Edward Stanley, Studies in the History of the Admiralty and Prize Courts (London: Stevens & Son, 1932)Google Scholar, 3. The jurisdiction of the High Court of Admiralty was absorbed by the High Court of Justice in 1875. Ibid., 3–4.
7. Wiswall, Development of Admiralty Jurisdiction, 35.
8. ESTC Citation No. T83700 (hereafter referred to as “Admiralty Reports”). The Strahans also spelled their name Strachan.
9. ESTC Citation No. W21937. Riley had established in Flatbush what was reputed to be the largest printing establishment in the country in 1807. Riley also printed volumes 2 (1806) through 6 (1812) of the decisions of the Supreme Court of the United States reported by William Cranch.
10. Hoeflich, Michael H., Legal Publishing in Antebellum America (Cambridge: Cambridge University Press, 2010)CrossRefGoogle Scholar, 14, 25.
11. Although American publications of reports of individual cases or trials, both here and in Great Britain, were not uncommon, few law reports collecting American cases were published in America up to 1800: none in New York State; three volumes of Dallas's Reports of federal and Pennsylvania cases (1790, 1798, and 1799) and one volume of Addison's local Pennsylvania Reports (1800); one volume of Wythe's (1795) and two of Washington's Reports (1798 and 1799) in Virginia; Kirby's (1789), Chipman's (1793) and Bay's (1798) single volumes of Reports for Connecticut, Vermont, and South Carolina, respectively; and two one-volume editions of his admiralty judgments published in 1789 and 1792 by Francis Hopkinson, the first United States district judge for the district of Pennsylvania, and three single volumes in North Carolina: Martin's Notes of a Few Decisions (1796), and Haywood's (1799) and Cameron's Reports (1800). Ritz, Wilfred J., American Judicial Proceedings First Printed Before 1801 (Westport, CT: Greenwood Press, 1984)Google Scholar; and Langbein, John H., “Chancellor Kent and the History of Legal Literature,” Columbia Law Review 93 (1993) 547, 572–75CrossRefGoogle Scholar. American lawyers of this period did not want for English reports. In addition to those imported from London, English law reports and treatises—lacking copyright protection abroad—were reprinted in substantial volume in Dublin, and these cheaper reprints were exported to the United States. However, it was not until the arrival in the United States of expatriated participants in the rebellion of 1798—such as Patrick Byrne, who reached Philadelphia in November 1800 after his release from prison but took a year to re-establish his publishing business—that a substantial production of current English law books began in this country. In the 10 years beginning in 1802, Byrne printed locally volumes of Espinasse's Reports, Peake's Reports, Saunders's Reports, Blackstone's Reports, Bosanquet's Reports, Vesey's Reports and in two different series of East's Reports, not to mention several British legal treatises. See Cole, Richard Cargill, Irish Booksellers and English Writers 1740–1800 (Atlantic Highlands, NJ: Mansell, 1986), 186–90Google Scholar. James Kent bought volumes of Vesey's Reports printed by Byrne both before his exile from Dublin and after his arrival in Philadelphia, and the inventory of Kent's library found in Hulsebosch, Daniel J., “An Empire in Law: Chancellor Kent and the Revolution in Books in the Early Republic,” Alabama Law Review 60 (2009) 377, 409–24Google Scholar, is illustrative both of the volume of Dublin legal reprints generally and of Byrne's Dublin and Philadelphia output specifically.
12. Hoeflich, Legal Publishing, 14–16. See also Joyce, Craig, “The Rise of the Supreme Court Reporter: An Institutional Perspective on the Marshall Court Ascendancy,” University of Michigan Law Review 83 (1985): 1291, 1325–26Google Scholar.
13. Newmyer, R. Kent, Supreme Court Justice Joseph Story – Statesman of the Old Republic (Chapel Hill: University of North Carolina, 1985): 120–21Google Scholar, 285; Ferguson, Robert A., Law and Letters in American Culture (Cambridge: Harvard University Press, 1984): 31–33Google Scholar; and Baker, G. Blaine, “Story'd Paradigms for the Nineteenth-Century Display of Anglo-American Legal Doctrine,” in Law Books in Action–Essays on the Anglo-American Legal Treatise, ed. Fernandez, Angela and Dubber, Markus D. (Oxford and Portland: Hart, 2012)Google Scholar, 82.
14. Reports of Cases Argued and Determined in the High Court of Admiralty; Commencing with the Judgments of The Right Hon. Sir William Scott, Easter Term 1808. The last decision reported in the volume is the case of The Snipe, the 5 day oral argument in which, taken in shorthand by Gurney, was separately printed by Strahan and published by Butterworth in 1812: Arguments of Counsel in the Cases of the Snipe, the Martha, the Vesta and other American Vessels, Detained under the Orders in Council, and Brought to Adjudication in the High Court of Admiralty before Sir William Scott, on the 8th, 10th, 14th, 15th and 29th of July 1812. This is the only stenographically recorded proceeding in the High Court of Admiralty before Sir William Scott that has been identified. However, part of Scott's duties included holding the Old Bailey Admiralty Sessions, and there are two reported capital trials that he conducted: The Trial of William Codling, Mariner … For Wilfully and Feloniously Destroying and Casting Away the Brig Adventure on the High Seas, within the Jurisdiction of the Admiralty of England (London: Martha Gurney 1803)Google Scholar and Report of the Trial in the Case of The King v. William Jemott, at the Admiralty Sessions, Held at the Old Bailey, London, before Sir William Scott, Sir Simon Le Blanc, &c. &c. (London: W. Hughes, 1812)Google Scholar. In late 1812, Scott also held a brief trial in the Admiralty Sessions, recorded rather summarily in the journals of the time, at which the young Marquis of Sligo was convicted and sentenced to prison for persuading Navy seamen to desert their ship to crew his private yacht; during the proceedings Scott became acquainted with and later was unhappily married to the defendant's widowed mother. Celebrated Trials, and Remarkable Cases of Criminal Jurisprudence, from the Earliest Records to the Year 1825, 6 vols. (London: Knight and Lacey, 1825), 6:115Google Scholar. See Holdsworth, History of English Law, 13:675.
15. Reports of Cases Argued and Determine in the High Court of Admiralty; Commencing with the Judgments of the Right Hon. Sir William Scott, Trinity Term 1811 (London: J. Butterworth, 1815 and 1828)Google Scholar.
16. Reports of Cases Argued and Determined in the High Court of Admiralty during the Time of the Right Hon. Lord Stowell, 1822–1825 (London: J. Butterworth, 1825)Google Scholar; and Reports of Cases Argued and Determined in the High Court of Admiralty, during the Time of the Right Hon. Lord Stowell and of the Right Hon. Sir Christopher Robinson, 1825–1832 (London: Saunders and Benning, 1833)Google Scholar.
17. A Report of the Judgment of the High Court of Admiralty, on the Swedish Convoy; pronounced by The Right Hon. Sir William Scott on the Eleventh June 1799 (London: J. Butterworth, 1799)Google Scholar. See also The Armed Neutralities of 1780 and 1800 – A Collection of Official Documents Preceded by the Views of Representative Publicists, ed. Brown, James Scott (New York: Oxford University Press 1918), 471–606Google Scholar; and Randall “History of Contraband” 454–60. Randall characterizes University of Copenhagen law professor Schlegel's contemporaneous pamphlet opposing the right of search as “…a fine example of the art of special pleading. Like the theologians, the author unblushingly assumes what he wants to prove, and manifests a sublime disregard for any facts that may tell against his own view.” Ibid., 457. See also Semmel, Bernard, Liberalism & Naval Strategy – Ideology, Interest and Sea Power during the Pax Britannica (Boston: Allen & Unwin, 1986), 20–22Google Scholar. In October 1812, a separate pamphlet was published by Butterworth containing Thomas Edwards's Report of a Judgment in the High Court of Admiralty by the Right Hon. Sir William Scott, in the case of the Snipe and other American Vessels, concerning the dispute over the purported repeal of the French Berlin and Milan blockading decrees; rendered June 30, 1812, just as the news that the United States had declared war arrived in London, this decision was added so hastily to the end of Edwards's volume of reports, ahead of many earlier cases that had to wait for reporting later by Dodson, that it does not appear in the index of the volume. The third separately published case, in 1818 by Butterworth, was A report of the judgment delivered in the High Court of Admiralty, on the 30th day of June, 1818, by the Right Hon. Sir William Scott, on the question of head-money, arising out of the destruction of the French Ships of War in Aix Roads, in April 1809, reported in 2 Dodson 301 as the Ville de Varsovie. It concerned the dispute between Lord Gambier and Lord Cochrane over credit, and therefore, compensation, for this victory. Two other cases, published by Dodson in 1817 and Haggard in 1827, both concerned slavery and are discussed in section V.
18. Owen, David R. and Tolley, Michael C., Courts of Admiralty in Colonial America – The Maryland Experience, 1634–1776 (Durham: Carolina Academic Press, 1995)Google Scholar, 19.
19. Bourguignon, Sir William Scott, 243–44. Compare Roscoe, Lord Stowell, 33–36.
20. John Jay to Edmund Randolph August 9 and 21, 1794 (The Papers of John Jay web site, Columbia University, URL www.columbia.edu/cgi-bin/cul/resolve?AVE8231 [hereafter “Jay web site”], visited May 28, 2014, nos. 04303, 04307). Jay also advised Randolph in the first letter that he had requested that Scott work with “Doctor Nicholl”: John Nicholl, who would succeed Scott as King's Advocate in 1798 when Scott was elevated to the bench of the High Court of Admiralty.
21. Sir William Scott to John Jay, September 10, 1794 (Jay web site, nos. 04319, 04451, 08533, representing multiple copies in various repositories).
22. John Jay to Sir William Scott, September 10, 1794 (Jay web site, no. 08902).
23. John Jay to Edmund Randolph, September 13, 1794 (Jay web site, nos. 04312, 04444, with some variation in text). These were printed in 1794 in Philadelphia by Childs and Swaine, accompanied by a certification of authenticity from the Department of State.
24. John Jay to Samuel Bayard, January 5, 1795 (Jay web site, no. 12531); John Jay to Edmund Randolph, January 31, 1795 (Jay web site, no. 04351); and Sir William Scott to John Jay, March 17, 1795 (Jay web site, no. 7136).
25. Lord Grenville to John Jay, March 20, 1795 (Jay web site, no. 8551).
26. Some measure of those activities can be found in Admiral Cochrane, Lord, The Autobiography of a Seaman (New York: Lyons Press, 2000)Google Scholar, 27, first published in 1860. In it he describes the activities of the Thetis, the British man-of-war on which he served as third lieutenant starting in 1795, sailing along the American coast: “When the Thetis was first on the coast, the American republic was universally recognized, and it must be admitted that our treatment of its citizens was scarcely in accordance with the national privileges to which the young republic had become entitled. There were, no doubt, many individuals amongst the American people who, caring little for the Federal government, considered it more profitable to break than to keep the law of nations, by aiding and supporting our enemy, and it was against such that the efforts of the squadron had been chiefly directed; but the way in which the object was carried out was scarcely less an infraction of those international laws that we were professedly enforcing. The practice of taking English seamen out of American vessels, without regard to the safety of navigating them when thus deprived of their hands, has already been mentioned. To this may be added, the detention of vessels against which nothing contrary to international neutrality could be established, whereby their cargoes became damaged; the compelling them, on suspicion only, to proceed to ports other than those to which they were destined, and generally treating them as though they were engaged in contraband trade.”
27. Rufus King to Lord Grenville, February 3, 1798 in The Life and Correspondence of Rufus King, ed. King, C.R., 6 vols. (New York: G.P. Putnam's Sons, 1894–1900), 2:276–77Google Scholar. See, also, King to Secretary of State Pickering, dated March 26, 1797 and March 17, 1798, ibid., 288–90, 620–33.
28. Rufus King Papers, New York Historical Society, Box 7, Folder 2. This was a subject on which King had earlier corresponded with Grenville. King Correspondence, 2:122–23 (December 12, 1796).
29. King to Lord Grenville, January 4, 1797 and September 6, 1798, King Correspondence, 2:137–38, 409–10: “The increasing infirmities of the Judge of this Court, and which from his advanced age there is little reason to believe will ever be mitigated, incapacitate him to discharge the Duties of his important office with the ability and dispatch that the undoubted rights and essential interests of neutral nations give them a title to expect and require.” Ibid., 409.
30. King to Secretary of State Pickering, October 6 and 16, 1798, ibid., 441–42, 448, 451.
31. Ibid., 560, 564.
32. Ibid., 571–72.
33. King Correspondence 3:53, 56 (July 15, 1799). King was foreshadowing precisely the concerns, which, 200 years later, led to the removal of the Lord Chancellor from judicial duties and the translation of the Law Lords from the House of Lords to a new Supreme Court. See Steyn, Johan, “The Case for a Supreme Court,” Law Quarterly Review 118 (2002): 382, 385–89Google Scholar.
34. “Art. VIII – Curtis's Admiralty Digest,” in The American Jurist and Law Magazine 21 (1839):111, 116. The review's author, John Pickering, being both the son of the Secretary of State and King's private secretary in London at the time, knew whereof he spoke. “Biographical Sketch of the Late John Pickering,” in The Works of Charles Sumner (Boston: Lee and Shepard, 1875)Google Scholar 1:214, 216, 220. Sumner was one of the publishers of The American Jurist. See also White, Daniel A., Eulogy of John Pickering, LLD (Cambridge: Metcalf, 1847)Google Scholar.
35. King Correspondence, 3:201, 203. The earlier communications to which King refers cannot be located in his 1798 or 1799–1800 Letter Books. Rufus King Papers, vols. 52 and 53, New York Historical Society. His letter of July 15, 1799 to Pickering did transmit a copy of Scott's opinion “in the important Case of the Swedish Convoy.” Ibid., vol. 53, Letter nos. 43, 72, 81.
36. King Correspondence, 4:150–51.
37. There is a slight difference in text and punctuation between the two versions; the one quoted is from Volume I of the Admiralty Reports.
38. Binney, Charles Chauncey, The Life of Horace Binney with Selections from His Letters (Philadelphia: J. B. Lippincott, 1903), 157–58Google Scholar. Binney's entry continues the conversation. “He asked about General Ira Allen also, who had been dead perhaps forty, and amused himself by telling me of the general's admiralty suit, in which Sir John was his counsel. He had been captured with arms, going somewhere upon a Yankee errand to make the most of a bargain, without much regard to the law of contraband. Sir James Marriott had determined to condemn, and Allen, who meant to show he was not frightened, went into court in his Continental regimentals. Sir John told him he might make whatever fence he pleased, Sir James would leap over it all; and Allen said, ‘Well, all I ask is that you make it as high as you can.’ He seemed to retain a vivid recollection and even relish of Allen's strongly marked character…” The litigation involving Allen, who was Ethan Allen's brother, continued during King's stay in London. See King Correspondence, 2:509–11, 513–14; 3:478–79.
39. King to Scott, April 15, 1801, Scott to King, May 21, 1801, King Correspondence, 3: 430–31, 453–54. Scott told King in his letter, “I am glad you approve the Bill (for the regulation of the Vice-Admiralty Courts) generally. It is my sincere wish that it may be such as on a fair and dispassionate consideration between the countries you wd. approve.I can assure you that I expressed in our last conversation my own favorite idea that the Cruizers might be compelled to carry their Prizes to those Islands only, where the Jurisdiction is established. I hope I am not violating official Confidence when I say Mr. Nepean can inform you with what Ardour I preferred it, and how I entered my Protest against the danger & Inconveniences that may ensue, which I was finally & determinedly assured that the Exigencies of the Public Naval Service would in no degree admit it. It is solely on your account that I was anxious to obtain a different Rule to be adopted; I dread the Hazard of Constitutional Questions between us and the disinherited Colonies [emphasis in original].”
40. King to Madison, June 1, 1801, quoting Report of the King's Advocate, May 23, 1801, ibid., 468, 471.
41. Ibid., 88, 89. Williams was the United States consul in London.
42. During the Essex controversy, discussed below in section III, the Foreign Office asked Scott to prepare an answer to American protests, but according to the Foreign Secretary, Scott was afraid of the controversy, and his “defense of the new departure was so weak that Mulgrave concluded, ‘It may…be dangerous…to drag our Friend into the fight like Sir Andrew Ague Cheek, when he requires so many Sir Toby's to hold up his sword for him – .’” Perkins, Bradford, The First Rapprochement – England and the United States 1795–1805 (Berkeley: University of California 1967)Google Scholar, 180. Similarly, the almost unbelievable Report of the Cause between William Beaurain, Gent. Plaintiff, and The Right Hon. Sir. W. Scott, Knt. Defendant, for Unlawfully Excommunicating the Plaintiff (London: J. M. Richardson, 1814), 161–62Google Scholar finds Lord Chief Justice Ellenborough rationalizing to the jury that a ₤150 payment from Scott to Beaurain through the medium of Isaac Espinasse was to “preserve[] his own character from being made a subject of question to human justice.”
43. A possibly related interpretation appears in Bigelow, John, “The First Century of the English Mission,” Frank Leslie's Popular Monthly 14 (1882)Google Scholar: 1. Bigelow—a New York lawyer and politician, an American diplomat in Paris during the Civil War, and the author of history books, including a five volume autobiography entitled Retrospections of an Active Life (New York: Baker and Taylor, 1909)Google Scholar—devotes a full page of this ten page illustrated article to Rufus King, in which his principal topic is “[t]he most interesting single event of Mr. King's diplomatic career [,]…his agency in securing the publicity of Sir William Scott's Admiralty decisions”, that they might be “subjected to the supervision of public opinion”. Bigelow asserts that “How important a service Mr. King was thus rendering to the jurisprudence of the world cannot be properly appreciated, even by the most ardent admirers of England's greatest Admiralty Judge, without having in mind the fact that till this time her Admiralty Judges had been in the habit of consulting the Executive Council and deciding by their direction all novel prize questions. This practice was effectually checked by publicity, and the decisions of this court henceforth conformed to the generally accepted doctrines of international law.” This view may be contrasted with more recent scholarship. “Even Lord Stowell, who had a majestically lofty notion of the prerogatives of the prize court, did not venture in his court to pass upon the legality of an Order in Council. He would not presume to judge that an Order in Council imposed upon him duties inconsistent with International Law. Orders in Council he assumed to contain applications of the principles of that law provided for the use of the court, or positive regulations not inconsistent with it…” Sir Butler, Geoffrey and Maccoby, Simon, The Development of International Law (London: Longmans, 1928), 313–14Google Scholar.
44. Strahan Papers, Volume XX, Add. Ms. 48817, British Library.
45. “Books and Pamphlets Published in July 1799,” The Edinburgh Magazine or Literary Miscellany, August 1799, 131. The price was one shilling.
46. “William Strahan … effectively united the twin roles of King's Printer and law patentee…”, and on his death the business was carried on by his son “A[ndrew].” Wilfred Prest, “Law Books,” in The Cambridge History of the Book, ed. Suarez, Michael F., S.J. and Turner, Michael L. (Cambridge: Cambridge University Press, 2009)Google Scholar, V:791, 803.
47. Strahan Papers, Volumes XX and XXI, Add. Mss. 48817, 48818, British Library.
48. For example, the December 17, 1800 edition of the London Times announced, “This day is published, Price 5s, Vol. 2, Part I, or the 3d No. of Reports of Cases Argued and Determined in the High Court of Admiralty commencing with the Judgments of Sir William Scott, in Michaelmas Term 1798… . This number contains the Cases Determined from June to November 1799. The two former numbers may be had for 5s each.” However, the publication date of Volume II, based on the title page, is 1801.
49. The value to the historian of a minute analysis of the printer's schedule and the dates of parts may not be immediately apparent, but it is real. For example, The Papers of Thomas Jefferson (Princeton: Princeton University Press 2007)Google Scholar, 34:497, 501, reprinted “Levi Lincoln's Opinion on the Betsy Cathcart,” dated by the editors July 3, 1801, and characterized as a subsequently prepared fair copy of the now lost original with interlineations and erasures transmitted to Jefferson by Lincoln under cover of July 5, 1801 from Worcester, Massachusetts. Ibid., 515. The fair copy includes a reference to Scott's decision in The Christopher, cited as “Ropinson's [sic] Adm. Repts. Vol. 2d page 209” (the London citation). The difficulty is that The Christopher begins Part II of Volume Two of Robinson's Admiralty Reports in both the London and Philadelphia editions. The Strahan ledger shows that Part II of Volume II was printed in June 1801. A trip across the ocean took 40 days. See footnote 62. Therefore, assuming the accuracy of the Strahan ledgers, even if the printing began on Monday June 1, 1801, and the first copy off the press was for Levi Lincoln, it could not have traveled from London to Worcester, Massachusetts in time for him to use a case reported in it in an opinion transmitted to the President on July 5, 1801.
50. Author's collection.
51. Brugger, Robert J., Rutland, Robert A., Crout, Robert Rhodes, Sisson, Jeanne K., Dowdy, Dru., eds., The Papers of James Madison, Secretary of State Series (Charlottesville: University of Virginia Press, 1986)Google Scholar, 1:254.
52. Sowerby, E. Millicent, Catalogue of the Library of Thomas Jefferson, 5 vols. (Washington DC: Library of Congress, 1952–59)Google Scholar, II:370. Jefferson's second volume was from the first London printing.
53. One exception located is in the Special Collections at the Johns Hopkins Library. Hulsebosch, “An Empire in Law,” mistakenly follows the Diamond Law Library on-line catalogue in crediting Volume I in its entirety to Poulson when describing Kent's copy; the remainder of Kent's copies, except Volume 6, were of the first London edition, 418.
54. These had been previously published in Philadelphia. See, above, footnote 23.
55. Thomas, Isaiah, The History of Printing in America (New York: Weathervane Books, 1970; reprinted from the second edition), 439, 454–55Google Scholar. The online catalogue of the Library Company of Philadelphia reflects the reduction in Poulson's output starting in 1800.
56. Ibid., 397–401, 439–40. The Royal Commission on the Losses and Services of American Loyalists, 1783 to 1785, Being the Notes of Mr. Daniel Parker Coke, MP (Oxford: Oxford University Press, 1915), 135–36.
57. Published in New York by T. & J. Swords, Vol. 1, No. 3, 373.
58. The same year Humphreys published in Philadelphia the first American edition of Abbott, Charles (later Lord Tenterden), A Treatise of the Law Relative to Merchant Ships and Seamen (London: Brooke & Rider: Butterworth 1802)Google Scholar, a later edition of which is discussed below in section V.
59. As noted above at footnote 9, Riley was a major printer in New York at the time. However, he had severe financial problems not long afterwards. “Isaac Riley, a prominent publisher and bookseller in New York, declared bankruptcy several times before beginning anew in Philadelphia, where he eventually declared bankruptcy twice, once in 1812 and again in 1820. He never recovered from the first bout with his creditors, and in his second Philadelphia disaster a number of his creditors from the previous collapse were still unpaid. Riley's business, at its peak, was substantial, and it is possible that his love of creative financing had finally taken its toll.” Remer, Rosalind, Printers and Men of Capital–Philadelphia Book Publishers in the New Republic (Philadelphia: University of Pennsylvania Press, 1996)Google Scholar, 120.
60. Rugemer, Edward B., The Problem of Emancipation: the Caribbean Roots of the American Civil War (Baton Rouge: Louisiana State University Press 2008): 48, 52–53Google Scholar.
61. Raven, James, London Booksellers and American Customers–Transatlantic Literary Community and the Charleston Library Society, 1746–1811 (Columbia, University of South Carolina Press 2002), 115–16Google Scholar (25% of wholesale costs).
62. The trip across the ocean would have taken about forty days. Ernst, Robert, Rufus King–American Federalist (Chapel Hill: University of North Carolina Press 1968)Google Scholar, 277; and Perkins, The First Rapprochement, 44.
63. Prices rose in both England and America later in the decade. The 1806 Riley catalogue cited above was selling four volumes of the Philadelphia edition for $11, and in London the price for the last Part, Part 2 of Volume 6, had risen from 5 shillings to 9. The Monthly Magazine; or British Register 26 (1808)Google Scholar: 250.
64. Cole, Irish Booksellers, 21. “The main business, then, of the eighteenth-century Irish book trade was reprinting London editions usually without authorization from the author or publisher holding the copyright and without paying royalties… . Although the Irish reprint trade claimed to be interested primarily in supplying cheap reprints to Ireland's poor and untutored masses, its clientele in Ireland itself was the landed and professional classes for the most part, supplemented by at least some readers in Britain and perhaps exceeded by Americans as the century neared its end.”
65. Although limited to books printed before and 1801 and, therefore, to the first volume of the Philadelphia edition, Wilfred Ritz's 1984 American Judicial Proceedings identified copies at Catholic University of America Law School, the Library of Congress, the Boston Athenaeum, Harvard Law School, the American Antiquarian Society, the Baltimore Bar Library, the Clements Library at the University of Michigan, Duke University, the New Jersey Historical Society, the John Carter Brown Library and the University of Virginia Law Library. Further copies are identified below in section V. A six volume set is at Johns Hopkins. On May 5, 1840, the chancellor of the State of New York supplied the Senate with a catalogue of the Chancery Court library, which included Robinson's Admiralty Reports but did not identify the edition.
66. Hill, Richard, The Prizes of War–The Naval Prize System in the Napoleonic Wars, 1793–1815 (Stroud, Gloucestershire: Sutton Publishing, 1998), 139–61Google Scholar, 248.
67. Witt, John Fabian, Lincoln's Code – the Laws of War in American History (New York: Free Press, 2012)Google Scholar, 87, 165. Witt was referring to the United States Navy, but the British Navy had nearly 300 ships of the line and cruisers in 1800. Rodger, N. A. M., The Command of the Ocean – A Naval History of Britain, 1649–1815 (New York: Norton, 2005), 606–9Google Scholar. The author's collection includes a handsomely bound Part II of Volume I of the London edition of Robinson's Admiralty Reports with the bookplate of Thomas Gordon Caulfeild, R.N., who in 1803 was commanding the HMS Grampus, a 50-gun vessel, and 10 years later the HMS Hibernia, a ship of the line with 120 guns.
68. London: J. Hatchard. Perkins, The First Rapprochement, 180. Stephen first submitted the text of the pamphlet to Scott, who passed it on to Pitt, and later counseled Stephen to publish it to educate the public but to do so privately, in order to give the government greater flexibility. Ibid; see also Semmel, Liberalism & Naval Strategy, 22–26. Writing to James Madison from London under date of October 26, 1805, James Monroe described War in Disguise as “a ministerial work, or rather under its auspices” which “advises direct war on us in pretty plain terms…” Madison Papers, Library of Congress.
69. War in Disguise, 16–17n.
70. Section 9 of the Judiciary Act of 1789 conferred on the district courts, to the exclusion of the circuit courts, “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction…: And … also … exclusive original cognizance of all seizures on land, or other waters than as aforesaid made, and of all suits for penalties and forfeitures incurred, under the laws of the United States.” Although Section 8 of Article I did confer on Congress the power to pass laws punishing piracy and violations of the law of nations, and to “make rules concerning captures on land and water,” Article I in terms did not expressly confer power on Congress to enact a general law of admiralty.
71. American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 545–46 (1828) (emphasis supplied).
72. Pennhallow v. Doane's Administrators, 3 U.S. 54, 91 (1795).
73. McCloskey, Robert G., ed. The Works of James Wilson (Harvard: Harvard University Press, 1967)Google Scholar, 1:279, 282.
74. Chisolm v. Georgia, 2 U.S. 419, 474 (1793). See Bellia, Anthony J. Jr., and Clark, Bradford R., “The Federal Common Law of Nations,” Columbia Law Review 109 (2009): 1, 37–45Google Scholar. A recent article argues that “a core purpose of American constitution-making was to facilitate the admission of the United States into the European-based system of sovereign states governed by the law of nations.” Golove, David M. and Hulsebosch, Daniel J., “A Civilized Nation: The Early American Constitution, the Law of Nations and the Pursuit of International Recognition,” New York University Law Review 85 (2010): 932, 934–35Google Scholar, 1001, 1003.
75. Peters's initial view of his court's prize jurisdiction was extremely conservative and, therefore, unhelpful in supplying precedents. Casto, William R., Foreign Affairs and the Constitution in the Age of Fighting Sail (Columbia: University of South Carolina Press, 2006), 86–90, 165–69Google Scholar.
76. Presser, Stephen B., “A Tale of Two Judges: Richard Peters, Samuel Chase, and the Broken Promise of Federal Jurisprudence,” Northwestern University Law Review 73 (1978): 26, 34–36Google Scholar; and Ernst, Rufus King, 209. Presser states that “[f]or Peters, American Admiralty law was to come rather from the maritime laws of the ‘law of nations’”; he wrote in an opinion in 1795 that “we must resort to the regulations of other maritime countries, which have stood the test of time and experience.”
77. See, for example, Blinka, Daniel D., “Jefferson and Juries: The Problem of Law, Reason, and Politics in the New Republic,” American Journal of Legal History 47 (2005): 35, 78–81CrossRefGoogle Scholar. Hough, Charles Merrill, Reports of Cases in the Vice Admiralty of the Province of New York and the Court of Admiralty of the State of New York 1715–1788 (New Haven: Yale University Press, 1925)Google Scholar; and Owen, David R. and Tolley, Michael C., Courts of Admiralty; Proceedings in the Court of Vice-Admiralty of Virginia 1678–1775, ed. Reese, George (Richmond, VA: State Library, 1983)Google Scholar. See, generally, Towle, Dorothy S., Records of the Vice–Admiralty Court of Rhode Island 1716–1752 (Washington, DC: American Historical Society, 1936)Google Scholar; and Ubbelohde, Carl, The Vice-Admiralty Courts and the American Revolution (Chapel Hill: University of North Carolina Press, 1960)Google Scholar.
78. Hamilton explained the Constitution's exclusion jury trials in admiralty matters: “I feel a deep and deliberate conviction, that there are many cases in which the trial by jury is an ineligible one. I think so particularly in cases which concern the public peace with foreign nations; that is in most cases where the question turns wholly on the law of nations. Of this nature among others are all prize causes.” The Federalist, No. 83, New York, 1788, 2: 327, 337.
79. The few published texts available at the time were either British—on admiralty law-or Continental—on the law of nations. Bourguignon, Henry J., The First Federal Court–The Federal Appellate Prize Court of the American Revolution–1775–1787 (Philadelphia: American Philosophical Society, 1977), 179–90Google Scholar.
80. That said, the availability of these precedents was hardly a complete solution for the problems confronting district judges sitting in admiralty. The following is taken from an opinion of Judge Samuel Rossiter Betts of the United States district court for the Southern District of New York 35 years later. “This point of practice is not regulated by the standing rules of this Court, and, accordingly, it must be governed by the principles and practice prevailing in the Courts of Admiralty, or under the civil law, which is the common source of procedure to the forums, both of this country and of England. The course of procedure in the English Admiralty, which is the immediate source of our practice, is in conformity to the practice of the Courts of the canon law, being administered substantially in the methods and with the formulae of the Roman law… . Clerke, who is regarded as a standard authority, is the earliest authentic writer on the subject. He compiled, in Latin, a Praxis for each tribunal, making that of the Ecclesiastical Courts the authoritative one, and refers throughout, in the other, for the rules of proceedings in Admiralty, to the usages and practice of the Ecclesiastical Courts. No other treatises on the Admiralty practice are recognised in an English Court as authority. And, indeed, it may be said, that the Admiralty in England appears to be governed by no determinate system of practice, but to conduct its business conformably to what is there understood to be the usage and custom of the Court, evidenced in its files and archives, or by the report of the registrar.” The Mary Jane (1833); Blatchford, Samuel and Howland, Francis, Reports of Cases Argued and Determined in the District Court of the United States for the Southern District of New-York 1 (1855)Google Scholar: 390, 391; and 16 F. Cas. 987 (No. 9,215).
81. Story, William W., ed., Life and Letters of Joseph Story (Boston: Charles C. Little and James Brown 1851)Google Scholar, 1:318.
82. Golove and Hulsebosch, “A Civilized Nation,” 974, nn. 168–69, citing Kent's comment quoted at the beginning of this article.
83. Only Volumes I–III of Kent's set were available for the author's review at the Diamond Law Library. However, the inventory of his law library in Hulsebosch, “An Empire of Law,” reflects that the first volume was from the Philadelphia printing, the next four were from the London printing, and the last was printed by Isaac Riley.
84. Hollis No. 006866907; Hoeflich, Michael F. and Beck, Karen S., Catalogues of Early American Law Libraries: The 1846 Auction Catalogue of Joseph Story's Library, Tarlton Law Library, Legal History Series No. 5 (Austin: University of Texas, 2004)Google Scholar, 29.
85. Du Ponceau, Peter S., A Treatise on the Law of War. Translated from the original Latin of Cornelius Van Bynkershoek (Philadelphia: Farrand & Nicholas, 1810)Google Scholar, 38 n., 99 n., 145–46 n., 165–67 n.; and Catalogue of Valuable Law and Miscellaneous Books from the Library of the Late Peter S. Du Ponceau, LL. D. (Philadelphia: Dorsey, 1844)Google Scholar, 24.
86. A Memoir, Containing an Examination of the British Doctrine, which Subjects to Capture a Neutral Trade Not Open in Time of Peace in Letters and Other Writings of James Madison (Philadelphia: J. B. Lippincott, 1865), 2:229–391Google Scholar; and Ketcham, Ralph, James Madison (Charlottesville: University of Virginia Press, 1990), 442–44Google Scholar. Madison cited both the London and Philadelphia editions and noted, but not invariably, the “Am. edit.” when citing to the Philadelphia edition. Du Ponceau cited only the American edition, which is all that he ever used. Kent, in Volume I of his Commentaries, cites Robinson's Admiralty Reports extensively, but leaves it to the reader to discover that his citations to the first volume are to the Philadelphia edition that he had, and that those to the next four volumes are to the London edition.
87. Konefsky, Alfred S. and King, Andrew J., The Papers of Daniel Webster, Legal Papers, Volume 2, The Boston Practice (Dartmouth: Univesity Press of New England, 1983)Google Scholar, 11. The basis for this attribution is that Webster argued the case of The St. Lawrence, Webb, Master at the February 1814 term of the Supreme Court of the United States, 12 U. S. 434. His argument as reported—said by the Webster Legal Papers (The Federal Practice, 3:14–15) to have been derived by Cranch from “a memorandum of points, furnished in compliance with USSC Rule 8”—relies on six of Sir William Scott's judgments and provides citations to both the London and the Philadelphia editions. Ibid., 438–39. The owner of the Philadelphia edition could provide the London page citations from the table in it, but there was no equivalent table in the London edition for the Philadelphia pagination.
88. Author's Collection. According to the General Introduction to Hobson, Charles F. and Lovelace, Joan S., eds., St. George Tucker's Law Reports and Selected Papers, 1782–1825 (Chapel Hill: University of North Carolina Press, 2013)Google Scholar, I:108, once he was appointed United States district judge for the District of Virginia, “[w]ith characteristic thoroughness and system, Tucker undertook to collect and digest all the information and materials he needed to master his new office. Among his first actions was to order reports of American and English admiralty cases, including the volumes of Dallas, Bee and Robinson.” I am grateful to Mr. Hobson for this reference. See also ibid., 3:1649, 1652, n.6, United States v. The Schooner Romp (1817), in which Tucker cites The Rebeckah in the first volume of the Philadelphia edition.
89. 4 U.S. 37, 44. Elsewhere the case is styled Baas v. Tingey. The statement in Maeva Marcus, ed., The Documentary History of the Supreme Court of the United States, 1789–1801, 9 vols. (hereafter Documentary History) (New York: Columbia University Press, 1985–2007), 8:434 n. 21. that Dallas cited to the wrong page of Scott's opinion in his report of Baas fails to take into account the existence of the American edition, the page numbering of which differs from the London editions.
90. Ibid., 422, n. 11, 430.
91. 5 U.S. 1, 6, 12–26. The citations to Volume II of the Philadelphia edition—and particularly to Part II—raise timing questions. Both sides are said to have cited 2 Rob. 246 (The War Onskan), which is in Part II of Volume II of the Philadelphia edition; in the London edition it starts on page 299, rather than page 246. Given that Peters had none of Volume II on May 14, 1801, and that according to Strahan's records, Part II of Volume II was not printed in London until June 1801, it is quite remarkable that a Philadelphia edition of Part II of Volume II could have been set, printed, and sold in Philadelphia and used in Supreme Court argument there just 2 months after it came off the press in London. One cannot help wondering whether a citation such as this was not adjusted from the English to the American edition after the oral argument, particularly as Volume 1 of Cranch was not published until 1804. But there is no proof that it was so.
92. 8 U.S. 241 (1808). Although Chief Justice Marshall did not cite to Robinson's Admiralty Reports in his opinion for the Court in the earlier case of Murray v. Schooner Charming Betsy, 6 U.S. 64, 75 (1804), the report of the oral argument contains the following statement: “The Ch.J. mentioned the case of the Sally, capt. Joy, in 2 Rob. 185 (Amer. Ed.) where a court of vice-admiralty had decreed, in a revenue case, that there was no probable cause of seizure.” See also Janis, Mark W., America and the Law of Nations 1776–1939 (Oxford: Oxford University Press, 2010), 40–44CrossRefGoogle Scholar.
93. Bee, Thomas, Reports of Cases Adjudged in the District Court of South Carolina (Philadelphia: Farrand, 1810), 180, 194, 220–22Google Scholar (“Eng. Ed.”), 227, 235.
94. See Casto, William R., “Foreign Affairs Crises and the Constitution's Case or Controversy Limitation: Notes from the Founding Era,” American Journal of Legal History 46 (2004)CrossRefGoogle Scholar: 237, 247 n.59.
95. “Such appears also to have been the opinion of that able civilian, sir William Scott (while advocate-general) and of the whole court of King's Bench in England, in 1789. (Smart v. Wolff, 3 Term Rep. 329). But political considerations have since induced that learned judge to maintain the opposite doctrine, contrary to the ancient, nay, inveterate practice of his own country….” Ibid., 38 n.
96. Abbott, Charles, A Treatise of the Law Relative to Merchant Ships and Seamen (Newburyport: Edward Little & Co. 1810)Google Scholar. Abbott, later Lord Tenterden, Lord Chief Justice of the Court of Kings-Bench, had published the first edition of the volume in 1802. The third London edition was published in 1808. The first American edition was published in 1802 in Philadelphia by James Humphreys.
97. Ibid., x, 451–53.
98. 7 F. Cas. 418 (C.C.D.Mass. 1815) (No. 3,776). See also The Alexander, 1 Fed. Cas. 357 (C.C.D. Mass. 1813) (No. 164); and The Emulous, 8 Fed. Cas. 697 (C.C.D. Mass. 1813) (No.4,479), rev'd on other grounds as Brown v. United States, 12 U.S. 110 (1814).
99. The Julia, Luce, Master, 12 U.S. 181 (1814) (Story, J.); The Adventure, 12 U.S. 221 (1814) (Johnson, J.); and Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191 (1815) (Marshall, Ch. J.).
100. See footnote 98, above.
101. The Venus, Rae, Master, 12 U.S. 253 (1814); The Nereide, Bennett, Master, 13 U.S. 388 (1815); and The Commercen, 14 U.S. 382 (1816). Justice Washington, with Story's concurrence, and Story, both sedulously following Scott, wrote for the majority in the first and the last cases cited; Chief Justice Marshall's views prevailed in the second. Interestingly, in The Nereide, counsel cited the American edition of Robinson's Admiralty Reports, but Story cited the London edition.
102. 12 U.S., 288, 299.
103. Thirty Hogsheads of Sugar v. Boyle, 13 U.S., 198. See also Belgrad, Eric A., “John Marshall's Contributions to American Neutrality Doctrines,” William & Mary Law Review 9 (1967): 430–451Google Scholar. Although closely allied with Justice Story, Henry Wheaton, about to become the reporter of the Supreme Court's decisions, voiced the same caution in the introduction to his A Digest of the Law of Maritime Captures and Prizes (New York: M'Dermut & D. D. Arden, 1815), x. “The decisions of the present judge of the high court of admiralty in England are entitled to great respect and attention, and being the adjudications of a court of the law of nations, are of binding authority in that law, except upon those questions in regard to which certain peculiar doctrines have been maintained by the British government. …Had that great man followed the example of his illustrious countryman…in refusing to be bound by the instructions and rescripts of his government where they infringed the law of nations and abridged the rights of neutrals, the authority of his adjudications would have been entitled to still more respect with foreign nations and with future ages.”
104. In A Memoir, Containing an Examination of the British Doctrine, Which Subjects to Capture a Neutral Trade Not Open in Time of Peace, James Madison actually led off the pamphlet war on the American side, responding to the seizure and condemnation of the Aurora in the Vice-Admiralty Court for Newfoundland on grounds indistinguishable from Scott's decision to the contrary, expressly indulgent of American commerce, in the Polly, Lasky Master, 2 Rob. 295, 301 (1800) (American edition). Following the decision in The Essex in June 1805, James Stephen published War in Disguise in October 1805. In February 1806, a pamphlet, published anonymously but written by Gouverneur Morris, attacked both Sir William Scott as a hypocritical tool of the Ministry, as well as the Stephens pamphlet. An Answer to War in Disguise; or Remarks Upon the New Doctrine of England, Concerning Neutral Trade. (New York: I. Riley, 1806)Google Scholar. More measured comments came from Ames, Fisher. Ames, Seth, ed., Works of Fisher Ames(Indianapolis: Liberty Classics 1983; reprint of 1854 NY ed.)Google Scholar, I:386. In London, a lengthy response to Madison's pamphlet was published (J. Johnson 1806) as Belligerent Rights Asserted and Vindicated against Neutral Encroachments. Charles Jared Ingersoll of the Philadelphia bar weighed in (Philadelphia: Conrad, 1808)Google Scholar with A View of the Rights and Wrongs, Power and Policy, of the United States of America, attacking Scott's decision in The Immanuel on the regulation of neutral shipping from enemy ports.
105. See, for example, Witt, Lincoln's Code, 60–62. The validity of both doctrines had been conceded in the Jay Treaty. Bemis, Samuel Flagg, Jay's Treaty–A Study in Commerce and Diplomacy, revised ed. (New Haven: Yale University Press, 1962)Google Scholar, 358; Bukovansky, Mlada, “American Identity and Neutral Rights from Independence to the War of 1812,” International Organization 51 (1997)CrossRefGoogle Scholar, 209, 228.
106. See note 104 above.
107. Perkins, Bradford, “Sir William Scott and the Essex,” William and Mary Quarterly, 3d Ser. 13 (1956):169–83CrossRefGoogle Scholar. As Perkins shows, in his History of the United States during the Second Administration of Thomas Jefferson (New York: Chas. Scribner's Sons, 1890)Google Scholar, Henry Adams repeatedly pilloried Scott as the author of the Essex decision, an error that continues virtually to this day. Toll, Ian W., Six Frigates – The Epic History of the Founding of the U.S. Navy (New York: Norton, 2006)Google Scholar, 275.
108. 5 Rob. 365, 385. Therefore, in Volume I of The American Law Journal (Philadelphia: Farrand 1808)Google Scholar: 221, Hall introduced a brief report of Scott's ruling in The Eliza, Haff, Master on January 21, 1804, not reported by Robinson, as follows: “The following case, of which the manuscript copy has been handed us by a friend, will be read with no ordinary share of interest, as it contains the latest decision pronounced by Sir Wm. Scott, on the former criterion as to what should be a discontinuance of a voyage, and which is directly in the teeth of the latter criterion at this time acted on. … [H]ad it not been that the extremities of this country, as a neutral nation, have driven her to examine with the eye of severe criticism the juridical decisions of this celebrated civilian, his fame might have been left to stand on a broader basis than that of an eloquent judge.”
109. 13 U.S. at 436. James Kent points out the importance of The Nereide in Volume I of his Commentaries (120–24). There, Chief Justice Marshall held that the American creed that “free ships make free goods” had no support in the law of nations, but he also rejected the converse that the captors there contended for: that an enemy ship makes enemy goods. Story argued that shipment of neutral goods on an armed enemy vessel that resisted inspection should result in forfeiture, a position Scott had taken the year before in The Fanny, Lawton, 1 Dodson 443, a case that Story did not cite and might not yet have known about. Kent comments that “it is to be regretted, that the decisions of two courts of the highest character, on such a point, should have been in direct contradiction to each other.” See, also, Newmyer, Supreme Court Justice Joseph Story, 95–97.
110. Wheaton, Henry, Reports of Cases Argued and Adjudged in the Supreme Court of the United States. February 1816 (Philadelphia: Matthew Carey 1816), 494–534Google Scholar. Story, Life and Letters, 1:281–83. Justice Story began with a discussion of the opinion Scott and Nicholl wrote to John Jay under date of September 10, 1794.
111. Ibid. 307–8, 318–21, 552–61. Decisions of Judge Peters and Judge John Davis of the district of Massachusetts in prize cases arising out of the War of 1812 made extensive use of Sir William Scott's judgments in Robinson's Admiralty Reports as authority. Cases Decided in the District and Circuit Court of the United States for the Pennsylvania District, and also a Case Decided in the District Court of Massachusetts, relative to the Employment of British Licenses on board of Vessels of the United States (Philadelphia: Redwood Fisher, 1813)Google Scholar. So did Justice Bushrod Washington, sitting in the circuit court in Philadelphia, and Judge William P. Van Ness in New York. Sperry v. Delaware Ins. Co., 22 Fed. Cas. 923 (E.D. Pa. 1808) (No. 13,326); Hon. Van Ness, William P., Reports of Two Cases Determined in the Prize Court for the New-York District, (New York: Gould, Banks and Gould, 1814)Google Scholar. Nonetheless, Judge Van Ness suggested that Scott could have feet of clay: “Sir William Scott, who, when his opinions are not influenced by the executive authority, or by the peculiar situation and policy of his nation, is great and high authority, has adopted these principles in their whole extent.” Johnson v. Thirteen Bales, 13 F. Cas. 836, 839 (No. 7,415) (C.C.D.N.Y. 1814).
112. Ibid., Vol. 7, 323, 345. Story, Life and Letters, 1:410.
113. 1 Acton's Reports 240 (1810); and 1 Dodson's Reports 81 (1811).
114. 26 Fed. Cas. 832, 847–49 (C.C.D.Mass. 1822 [sic]) (Case No. 15,551). John T. Noonan, Jr., The Antelope – The Ordeal of the Recaptured Africans in the Administrations of James Monroe and John Quincy Adams (Berkeley: University of California Press, 1977), 69–74.
115. However, with Story's silent acquiescence, in The Antelope, 23 U.S. 66, 117–23 (1825), Chief Justice Marshall held that Scott's opinion in The Louis “demonstrates the attention he had bestowed upon it, and gives full assurance that it may be considered as settling the law in the British Courts of Admiralty as far as it goes.” He construed Scott's judgment to hold that “the vessel even of a nation which had forbidden the slave trade, but had not conceded the right of search, must, if wrongfully brought in, be restored to the owner. But the Judge goes farther, and shows, that no evidence existed to prove that France had, by law, forbidden that trade. Consequently, for this reason, as well as for that previously assigned, the sentence of condemnation was reversed, and restitution awarded.” Finally, Marshall agreed with Scott that the slave trade did not violate the law of nations and that “this traffic remains lawful to those whose governments have not forbidden it… . It follows, that a foreign vessel engaged in the African slave trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored.” The specific facts of the case permitted the Court to liberate some, but not all, of the slaves who had been on the vessel when it was captured. Scholars dispute the precise ground for Scott's holding. Compare Kern, Holger Lutz, “Strategies of Legal Change: Great Britain, International Law and the Abolition of the Transatlantic Slave Trade,” Journal of the History of International Law 6 (2004)CrossRefGoogle Scholar: 233, 239 with Fischer, Hugo, “The Suppression of Slavery in International Law,” International Law Quarterly 3 (1950): 28, 36–39Google Scholar. Scott's judgment in The Louis earned him (and the Chief Justice for agreeing with him in The Antelope) special mention in John Quincy Adams's oral argument in The Amistad, 40 U.S. 518 (1841): “But here Sir William Scott proclaims a legal standard of morality, differing from, opposed to, and transcending the standard of nature and of nature's God. This legal standard of morality must, he says, in the administration of law, be held, by a Court, to supersede the laws of God, and justify, before the tribunals of man, the most atrocious of crimes in the eyes of God.”Argument of John Quincy Adams, before the Supreme Court of the United States, in the case of the United States, Appellants. Vs. Cinque, and others, Africans, Captured in the Schooner Amistad (New York: Benedict 1841)Google Scholar, 126.
116. J. Story, “Phillips on Insurance,” 65–66; Scott propounded a justification for enforcing the Orders in Council, but query how persuasive it was. Fox and Others, 1 Edw. 311 (1811); and Hill, The Prizes of War, 50–51. And echoing King's correspondence and Chief Justice Marshall's reservations, Justice Story recognized that: “There was a time, when it was the fashion in this country to undervalue the solid excellence of his opinions. Our commerce was so directly involved in conflict with his administration of prize law, that it was difficult to avoid prejudices on a subject in which, as neutrals, we had so deep an interest, and were so liable to indulge strong animosities.” Ibid., 65. Much the same thought was echoed by John Pickering in his review of Curtis's Admiralty Digest in 1839, 115. “Under such peculiarly trying circumstances, the eminent English judge we have mentioned—himself too, belonging to one of the belligerents—was called upon to administer the principles of the international law of Europe. That his decisions should in some cases have been ill received by a people, whose important interests were so deeply affected by them, is natural; but that he should, with so few exceptions, have decided in a manner which we ourselves on cooler reflection are obliged to approve, cannot but excite our wonder.”
117. Ibid., 67.
118. Paine, Elijah Jr.Reports of Cases Argued and Determined in Circuit Court of the United States for the Second Circuit (New York: R. Donaldson, 1827), 1:76–77Google Scholar, 182–83, 675.
119. Conkling, Alfred, The Jurisdiction Law and Practice of the Courts of the United States in Admiralty and Maritime Causes, 2 vols. (Albany: W.C. Little, and Boston: C.C. Little and J. B. Brown, 1848), 25–44Google Scholar, 89 n., 166 (referring to the “N.Y. ed. of 1810”), 197, 199, 221–22, 229–31, 251, 260, 269, 282–90, & n. c (providing the London edition citation and a parallel citation to “Phila. ed. of 1802”), 324, 355, 367, 375–76, 535, 553–54, 645–47.
120. Decisions from Betts's decade as district judge are reported in Blatchford and Howland, Reports of Cases Argued.
121. Judge Betts's prize decisions were reported by Samuel Blatchford, his successor and a future Justice of the Supreme Court of the United States, in a 729 page volume, Reports of Cases in Prize, Argued and Determined in the Circuit and District Courts of the United States, for the Southern District of New York. 1861–'65 (Washington, DC, GPO, 1866)Google Scholar. The United States district court in Key West, sitting in prize, early in the hostilities adopted the additional interrogatories at the back of Volume I of Robinson's Admiralty Reports. Robinton, Madeleine Russell, An Introduction to the Papers of the New York Prize Court 1861–1865 (New York: Columbia University Press, 1945)Google Scholar, 33. Judge Marvin of that court also relied on cases from Robinson's Admiralty Reports in The Dolphin, 7 Fed. Cas. 868 (S.D. Fla. 1863) (No. 3,975) and The Pearl, 19 Fed. Cas. 54 (S.D. Fla. 1863) (No. 10,874).
122. Lincoln's Code, 154–55.
123. A full discussion of Sir William Scott's influence on American jurisprudence cannot omit a reference to his decision as Lord Stowell, much later than those appearing in Robinson's Admiralty Reports, in The Slave, Grace (1827), reported by Haggard and published in a separate pamphlet with Scott's permission as The Judgment of the Right Hon. Lord Stowell, Respecting the Slavery of the Mongrel Woman, Grace, on an Appeal from the Vice-Admiralty Court of Antigua (London: Benning and Wilson, 1827)Google Scholar. The issue in the case was whether Grace, a household slave in Antigua who had been taken to London by her mistress in 1822 and had returned with her to Antigua in 1823, had been freed for all purposes by her sojourn in London by operation of Lord Mansfield's opinion in Somerset v. Stewart (1772). The Slave Grace's procedural origin—her seizure by the Antiguan Customs, 2 years after her return, on the grounds that the proper declaration had not been filled out for her reimportation as a slave—was so obviously feigned that it infuriated the 82-year-old Scott: “See how a claim of this kind betrays its imbecility.” Scott also made it clear that he deplored what he considered to be Lord Mansfield's departure from settled precedent, history, and custom in Somerset, and he refused to expand the freedom Somerset granted to a slave while in England to a freedom that continued on returning to the home colony. See Waddams, Stephen, “The Case of Grace James (1827),” Texas Wesleyan Law Review 13 (2006–7): 783–94CrossRefGoogle Scholar; Wong, Edlie L., Neither Fugitive nor Free – Atlantic Slavery, Freedom Suits, and the Legal Culture of Travel (New York: New York University Press, 2009), 36–48Google Scholar, 144. Given the similarity in fact patterns, it is hardly a surprise that The Slave, Grace was the subject of discussion in the separate opinions of Justices Nelson, Daniel, Campbell, McLean, and Curtis in Dred Scott v. Sandford, 60 U.S. 393 (1857), 467 (Nelson), 486 (Daniel), 499–500 (Campbell), 535, 559–60 (McLean), 591 (Curtis). Justice Daniel asserted that Somerset had “been overruled by the lucid and able opinion of Lord Stowell in the more recent case of the slave Grace.” In subsequent debates in the Senate, Judah P. Benjamin asserted that Lord Stowell was “a judge of resplendent genius” with “an intellect greater than Mansfield's.” Fehrenbacher, Don E., The Dred Scott Case – Its Significance in American Law and Politics (Oxford: Oxford University Press, 1978), 397–99Google Scholar, 475.
124. The Olinde Rodrigues, 174 U.S. 510, 514–515 (1899).
125. United States v. Steinmetz, 973 F.2d 212 (3d Cir. 1992), cert. denied, 507 U.S. 984 (1993). Biederman, David J., “The Feigned Demise of Prize,” Emory International Law Review 9 (1995)Google Scholar: 31, 48; Thompson, Mark, “Finder Weepers Losers Keepers: United States v. Steinmetz, the Doctrine of State Succession, Maritime Finds, and the Bell of the C.S.S. Alabama,” Connecticut Law Review 28 (1995)Google Scholar: 479, 505; and Poser, Susan and Varon, Elizabeth R., “United States v. Steinmetz: the Legal Legacy of the Civil War, Revisited,” Alabama Law Review 46 (1995)Google Scholar 725, 740 n.90.
126. She does acknowledge that, apart from the parallel holdings and a coincidence of dates, there is no evidence that Sir William Scott had any knowledge of Fenton v. Reid. Similarly, with varying degrees of certainty, legal historians attribute the opinion in Fenton v. Reed to then-Chief Justice James Kent but offer no factual support whatever. Lind, Goran, Common Law Marriage – a Legal Institution for Cohabitation (Oxford: Oxford University Press 2008)CrossRefGoogle Scholar, 372, 475 n.22 (“Kent is reputed to have made the decision in Fenton v. Reed…”); and Grossberg, Michael, Governing the Hearth – Law and Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press 1985), 70–71Google Scholar (“attributed to James Kent”). The notion appears to originate in Koegel, Otto E., Common Law Marriage and Its Development in the United States (Washington, DC: J. Byrne, 1922)Google Scholar, 80 n.1 (“There is [sic] good reasons for believing that Kent wrote the opinion”), but Koegel does not say what they are. Nevertheless, given the influence of Robinson's Admiralty Reports, further evidence might establish that, purposefully or not, this particular jurisprudential transatlantic current ran in both directions.
127. Roth v. United States, 354 U.S. 476, 488–89, n.24 (1953).
128. 217 N.Y. 382 (1916). Rodger, Alan [later Lord], “Lord Macmillan's Speech in Donoghue v. Stevenson,” Law Quarterly Review 108 (1992)Google Scholar: 236; see also Gordan, John D. III, “The American Authorities in Donoghue v. Stevenson: A Resolution,” Law Quarterly Review 115 (1999)Google Scholar:183.
129. See Kunal M. Parker, “Historicising Blackstone's Commentaries on the Laws of England,” Philip Girard, “‘Of Institutes and Treatises’: Blackstone's Commentaries, Kent's Commentaries, and Murdoch's Epitome of the Laws of Nova–Scotia,” Angela Fernandez, “Tapping Reeve, Coverture and America's First Legal Treatise,” and G. Blaine Baker, “Story'd Paradigms” in Law Books in Action.
130. The Maria, Paulsen, Master, 1 Rob., 350.
131. “Indeed, the Court continued to rely extensively on Scott's prize decisions even during the War of 1812, when purported British violations of U. S. neutral rights—which Scott had consistently upheld in the British prize courts—were the casus belli of the conflict.” Golove, David, “The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition,” in International Law in the U.S. Supreme Court–Continuity and Change, ed. Sloss, David L., Ramsey, Michael D., Dodge, William S. (Cambridge: Cambridge University Press 2011), 561, 573–74Google Scholar.
132. Perkins, Bradford, Prologue to War 1805–1812 – England and the United States (Berkeley: University of California Press, 1968)Google Scholar, 81 n.24.
133. Story, Life and Letters, 2:9–17. However, this appraisal by Story may be contrasted with his anonymous note “On the Rule of War of 1756” in Volume I of Wheaton's Supreme Court Reports, 14 U.S., 507, 533 (1816), in which—while protective of Sir William Scott—he decried the 1798 and 1803 Orders in Council reviving the Rule as “condemned by the universal voice of the impartial world…by the past example of the powers which issued them…[and] by the authority of the jurists whom Europe revered in better times, as the oracles of public law.”
134. See Bemis, Jay's Treaty, 358.
135. See, for example, Charge Delivered to the Grand Jury of the Circuit Court of the United States, at its First Session in Portland for the Judicial District of Maine (Portland, 1820), 13–14.
136. Story, Life and Letters, 1:357–58.
137. Ibid., 1:552–54.
138. Ibid., 557–59.
139. 41 U.S. 539 (March 1, 1842).
140. Baker, H. Robert Jr., Prigg v. Pennsylvania: Slavery, the Supreme Court and the Ambivalent Constitution (Lawrence: University Press of Kansas, 2012)Google Scholar; Baker, H. Robert Jr., “The Fugitive Slave Clause and the Antebellum Constitution,” Law and History Review 30 (2012):1127–74CrossRefGoogle Scholar; Goldstein, Leslie Friedman, “A ‘Triumph of Freedom’ After All? Prigg v. Pennsylvania Re-Examined,” Law and History Review 29 (2011): 763–96CrossRefGoogle Scholar; McClellan, James, Joseph Story and the American Constitution (Norman: University of Oklahoma Press, 1971), 262–63Google Scholar n.94; Finkelman, Paul, “Joseph Story and the Problem of Slavery: A New Englander's Nationalist Dilemma,” Massachusetts Legal History 8 (2002): 65–84Google Scholar; and Finkelman, Paul, “Prigg v. Pennsylvania: Understanding Joseph Story's Pro-Slavery Nationalism,” Journal of Supreme Court History 2 (1997): 51–64Google Scholar.