Reynolds, William L.

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Maryland Journal of International LawVolume 22 | Issue 2 Article 8Courts of Admiralty in Colonial America: theMaryland Experience, 1634-1776, by David R.Owen & Michael C. TolleyWilliam L. ReynoldsFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mjilPart of the Legal History, Theory and Process CommonsThis Book Review is brought to you for free and open access by DigitalCommons@UM Carey Law. It has been accepted for inclusion in MarylandJournal of International Law by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationWilliam L. Reynolds, Courts of Admiralty in Colonial America: the Maryland Experience, 1634-1776, by David R. Owen & Michael C.Tolley, 22 Md. J. Int'l L. 407 (1998).Available at: http://digitalcommons.law.umaryland.edu/mjil/vol22/iss2/8BOOKS REVIEWEDCourts of Admiralty in Colonial America: The Maryland Experience,1634-1776. By David R. Owen & Michael C. Tolley. Durham, N.C.: Car-olina Academic Press, 1995. 421 pages.We common lawyers are an insular bunch. We pay little attention tothe law in the rest of the world, and even less attention to our own legalhistory, a surprising lacuna given our supposed penchant for history inthe form of precedent. Even within our own legal systems we ignore theunfamiliar. As a result, few of us know about maritime law, the most im-portant part of our inherited law that is not part of the common law.That is unfortunate, for maritime law has much to teach us. Backwhen the common law was still mired in the petty land disputes of thedisreputable Norman nobility, the admiralty lawyers were applying so-phisticated law developed from the island of Rhodes to the Baltic, andworking in Roman law as well.' The law merchant was resolving sophis-ticated contract disputes centuries before Lord Mansfield personally drag-ged the common law of contract within sight of modem economics. Ad-miralty law also had developed advanced features - no parochial jury,in rem jurisdiction, protection of seamen as wards of the court - whilethe common law was still creaking along in the wake of the Sheriff ofNottingham. We have much to learn from those long- forgotten maritimelawyers.Now David Owen, a prominent member of the Admiralty Bar basedin Baltimore as well as a dedicated legal historian, and Michael Tolley, acolonial historian at Northeastern University, have collaborated on a su-perb book combining colonial legal history and admiralty law. This is awonderful book. It is splendidly organized and well written. It covers dif-ficult legal and historical materials with aplomb. The Silver Oar is nicelyillustrated. 2 The authors provide detailed descriptions of a number ofcases, in the body of the text as well as in a lengthy Appendix.3 It is1. Admiralty lawyers were called "doctors" and received training in the "civil law"- that is, the law of civilians. Their chambers are described in loving detail in ChapterXXIII of Charles Dickens' David Copperfield.2. DAVID R. OWEN & MICHAEL C. TOLLEY, COURTS OF ADMIRALTY IN COLONIALAMERICA: THE MARYLAND EXPERIENCE 1634-1776 xxxii (1995). It includes the only pic-tures I have ever seen of the famous "silver oar," the symbol of the High Court of Ad-miralty which, at trial, is placed on a rack in front of the judges' bench.3. These case summaries are very interesting. Consider the case of the SnowHannah, Edward Prescott, Master (1793), see id. at 324-52. The libellants, seamen, hadsigned on in Liverpool for a round trip which included visits to Africa and Virginia. They(407)408 MD. JOURNAL OF INTERNATIONAL LAW & TRADEboth instructive as well as a delight to read. Because the book breaksnew ground concerning the actual practice of the American maritimecourts, it should be of greatest interest to the specialist in that subject.But it should also be of enormous interest to the general reader withsome interest in colonial history or in admiralty law.The book opens with a detailed description of English admiraltypractice. I found this fascinating - a concise presentation of complexmaterial with which I was largely unfamiliar. The authors then trace thedevelopment of colonial vice-admiralty courts, first in the West Indies,then in New York in 1678, and in Maryland in 1694. Eventually, nine ofthe thirteen colonies had vice-admiralty courts.4 These were not ordinaryprovincial courts under the thumb of colonial Governors; rather, theywere a "branch" of the High Court of Admiralty sitting in London.5 Notall "admiralty" cases in the colonies were heard by a vice-admiraltycourt, even after those courts became active. A good many maritimecases during the last century of British rule were heard by ordinarycourts; in Maryland, this meant that they were heard by the "ProvincialCourt." Both that court and the vice-admiralty court located in Maryland,had concurrent jurisdiction to hear maritime matters.6The maritime courts handled a wide variety of cases: insurance,prize, criminal, as well as cases alleging violation of the NavigationActs.7 For most of the Colonial period, the Navigation Acts were regula-tory, designed to create "one great trading area with London at its hub";after the Seven Years' War ended in 1763, however, the goal of the Nav-igation Acts shifted to "revenue collection."' 8 In either event, smugglersleft the Hannah in Annapolis because of "barbarous inhumanity and ill usage" by the of-ficers. The suit was for wages due, and the seamen were represented by two young law-yers later to sign the Declaration of Independence, William Paca and Samuel Chase. Theadmiralty court ordered the arrest of the masters and of the sloop itself (N.B.: Classic inpersonam as well as in rem jurisdiction). The court found for the seamen and ordered thesloop to be sold to pay their wages. The authors consider this to be a typical result, forthe courts protected seamen as wards of the admiralty. There is also a complete record ofthe case of The Ship Ann of Newcastle (1692), see id. at 339-52, another wage case,which makes for interesting reading. I.4. See id. at 35. The authors believe that the first vice-admiralty court actually to sitin the thirteen colonies was in Maryland. See id. at 285.5. Id. at 97.6. There was some split in the type of cases handled in each court. Thus, the Pro-vincial Court handled more "instance" cases than did the vice-admiralty courts. Id. at143. That court was also the "preferred forum" for cases involving maritime contracts.Id. at 214.7. The first and last categories were the most prevalent in the maritime courts. SeeId. at 103 (Thl. 5-A).8. Id. at 108.[Vol. 22COURTS OF ADMIRALTYhad more friends than most law-breakers. As a result, being an admiraltyofficial in Maryland was not an easy job. Two Collectors of Customswere murdered between 1684 and 1689, leading the King to revoke Ma-ryland's charter as a proprietary colony and instead make it into a royalone. 9 The Collectors also had to face judges and juries who at timesseemed to be quite favorable to the smugglers caught evading the Navi-gation Acts. Although the authors believe that later historians have exag-gerated juror opposition to enforcement of the Navigation Acts in theearly days, "on occasion, the partiality [of the jurors] was not only pal-pable but extreme."' 0More pleasant for the judges must have been the more routine "in-stance" litigation cases involving seamen's wages, salvage, charter par-ties, and other ordinary grist for the maritime mill. These disputes tookup about half of the court's caseload." The maritime courts played itstraditional role as friend of the common sailor. Incredibly, seamen won"every wage case brought in Maryland courts, common law as well asadmiralty.' 12 There were also a few prize and piracy cases in the admi-ralty courts, although the most famous of the former in Maryland oc-curred in 1794,13 and the most famous piracy case took place in 1638,before either the Provincial or admiralty court had been formed. 14The authors describe in some detail the practice and procedure ofthe vice-admiralty court, as well as the judges and attorneys who servedin it. They have identified eighteen lawyers who appeared in maritimecases between 1664 and 1775. The list is truly impressive: two (Paca andChase) signed the Declaration of Independence, ten became AttorneysGeneral of Maryland, and one (Chase) sat on the Supreme Court of theUnited States.15The most important tale told by the author's data concerns the rela-tion between the vice-admiralty courts and the American Revolution. Itoften has been asserted that the courts were a particular source of griev-ance for the colonists. Owen and Tolley assert, however, that they"found no evidence in either the primary or secondary sources to support9. See id. at 113-114.10. Id. at 123.11. See id. at 142.12. Id. at 147.13. This was Glass v. The Sloop Betsey, 3 U.S. 6 (1794), described as "the leadingprize case in Maryland." Owen & Tolley, supra note 2, at 157. The trial judge in thecase was William Paca, who earlier had been a lawyer in the vice-admiralty court.14. The defendants were tried by the General Assembly, sitting as a court.15. Owen & Tolley, supra note 2, at 176-77. Chase, of course, remains the only Jus-tice ever tried in the Senate on charges of impeachment.1998]410 MD. JOURNAL OF INTERNATIONAL LAW & TRADEeven a minor causal relationship between the worth of the Court of Vice-Admiralty and Maryland's attitude toward active participation in theRevolution."' 16 They find no evidence of "explicit complaints about thevice-admiralty" during the Maryland Conventions of 1774, 1775, and1776, even though there was "extreme discontent with the Stamp Act ingeneral."' 17 Moreover, the authors find "suspect" the complaint in theDeclaration of Independence concerning the vice-admiralty courts. 8 Theyoffer compelling proof: The existence of a "remarkable degree of con-tinuity" between the colonial Vice-Admiralty practice and procedure andthe admiralty provisions of the Federal Judiciary Act of 1789.19 The au-thors present overwhelming evidence of that continuity. Because the con-tinuity thesis contradicts such distinguished historians as Roscoe Poundand Morton Horwitz,20it is worth presenting the Owens/Tolley evidencein some detail. They use four examples of continuity:1. Jurisdiction. The federal courts rejected the English notion thatadmiralty jurisdiction was limited to tidal waters. Instead, the SupremeCourt eventually held that "the framers had in mind the much broadercolonial jurisdiction granted in the vice admiralty commissions . . . "21Similarly, colonial precedents were used to support a holding that federaladmiralty courts had jurisdiction over cases involving maritime neces-saries, carriage of goods, insurance, and charter parties.222. Substantive Law. Because the admiralty courts did not write for-mal opinions, it is difficult to trace continuity in substantive law from thecolonial era. Nevertheless, the authors identify some convincing con-tinuity from colonial to federal law. 233. Procedure. There was great continuity in procedure. Such tradi-tional admiralty features as in rem jurisdiction procedure, attachment, andthe "non-jury" trial carried over into the federal era.244. Structure. Not only is the arcane terminology of the vice-admiralty courts followed in federal admiralty courts, but the key organi-zational point-shared jurisdiction between the regular and admiraltycourts-also survived into the modem era.16. Id. at 207-209.17. Id. at 203.18. See id. at 205-07.19. Id. at 202.20. See id. at 202 n.3 & 4.21. Id. at 213.22. See id. at 215.23. See id. at 230.24. Id.(Vol. 22COURTS OF ADMIRALTYObviously, as this discussion makes clear, the framers did not findanything obnoxious about the vice-admiralty courts they had come toknow so well. If they had felt any serious concerns, the drafters of ourConstitution and our early statutes certainly would not have carried for-ward the law and procedure of the colonial courts if they had found itoppressive.As Owens and Tolley explain:Several reasons may explain why the law of admiralty continuedlargely intact and unscathed during these years. First, the substan-tive law of the admiralty had already been pressed into service ofcommercial and economic development. For centuries the lawmerchant, based upon the "customs of merchants," had been re-sponsible for rationalizing commerce and facilitating commercialinteractions. Second, the unique procedures of the admiralty wereso conducive to trade that the complaints that trials without juriesviolated "right of Englishmen" were easily disarmed by theframers of the Judiciary Act of 1789 who saved "to suitors, inall cases, the right of common law remedy where the commonlaw is competent to give it." Third, the interest of the new re-public in establishing national power coincided with the interestsof the admiralty in a broad, uniform jurisdiction. As the nationgrew and more power became lodged in the new national govern-ment, so too did the admiralty jurisdiction of the federal courts. 25In short, this an interesting, informative, and valuable book. Itshould be widely read and enjoyed.William L. Reynolds*25. Id. at 234* Jacob A. France Professor of Judicial Process, University of Maryland School of1998]

Courts of Admiralty in Colonial America: the Maryland Experience, 1634-1776, by David R. Owen & Michael C. Tolley

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