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.Chancellor Kent's single, luminous sentence, published while Sir William Scott was still on the bench, presents the questions this article will explore. It investigates two interrelated aspects of the trajectory of the first decade of Sir William Scott's admiralty judgments: the history of their nearly simultaneous publication on both sides of the Atlantic and dissemination into the transnational “republic of letters” and the circumstances of their immediate absorption as precedents into the jurisprudence of the United States.Footnote 1
Scott was the scholarly judge of the High Court of Admiralty in London from 1798 until 1828, delivering judgments both on the instance side (e.g., property rights of the Crown and the Lord High Admiral, salvage, maritime contract, hypothecation, freight, and wages) and the prize side of the court, the latter being of particular significance in the early years of his judicial tenure during the hostilities between England and France.Footnote 2 The notes Kent wrote in the front of his copy of the first volume of the reports of Scott's decisions, now in the Diamond Law Library at Columbia University, provide additional biographical detail: “Sir Wm. Scott was a Tutor in University College, Oxford,” of whom Gibbon said, “‘my personal acquaintance with that Gentleman…has inspired me with a just Esteem for his abilities and knowledge; & I am assured that his lectures on history would purpose, were they given to the public, a most valuable treatise.’” After nearly two decades at Oxford as a student, fellow, and reader, in 1779, Scott enrolled as an advocate of the College of Doctors at Law, exercent in the Ecclesiastical and Admiralty Courts. He was appointed an advocate-general to the Admiralty in 1782; in 1788 he was knighted and appointed both King's advocate and a judge of the Consistory Court.Footnote 3 Kent's note continues:
In 1790 Sir Wm. Scott was a Judge of the Consistory Court at London… . Here he delivered a most admirable Decision, for Elegance, for moral & clear reasoning in the case of Evans v. Evans, being a Libel filed by the Wife against the Husband on a charge of cruelty… .Footnote 4
October 27, 1798 Sir Wm. Scott, His Majesty's advocate General was made Judge of the high Court of Admiralty vice Sir James Marriott resigned, & he was about the same time sworn of his Majesty's privy Council…Footnote 5
Kent's use of the expression “the admiralty side of Westminster Hall” in his Commentaries was surely figurative, because the High Court of Admiralty and the Consistory Court were held in the Doctors' Commons, located on Knightrider Street, just below St. Paul's Cathedral, miles from Westminster Hall.Footnote 6 The distance between them was not merely geographical; exercising powers originally conferred by the Crown on the Lord High Admiral, in prize cases the High Court of Admiralty applied doctrines of the law of nations derived from continental civil law, rather than English common law, and its bar in both prize and instance cases consisted of a small and exclusive group of “civilian” practitioners, with doctorates from Oxford or Cambridge, separate from the common law bar in the Inns of Court.
In the early years of his tenure, Sir William Scott's admiralty judgments were reported by Christopher Robinson, a distinguished civilian and from 1809, King's advocate in the High Court of Admiralty,Footnote 7 who succeeded Scott on that bench. According to the English Short Title Catalogue (ESTC), six volumes of Robinson's reports of Scott's admiralty judgments, entitled Reports of Cases Argued and Determined in the High Court of Admiralty; commencing with the Judgments of The Right Hon. Sir William Scott, Michaelmas Term 1798 were “printed by A. Strahan, Law-Printer to the King's Most Excellent Majesty, for J. Butterworth and J. White, Fleet-Street”; the first volume was published in 1799, and the remaining five were published in 1801, 1802, 1804, 1806, and 1808.Footnote 8 The ESTC also lists a six volume Philadelphia edition published in 1800, 1801, 1802, 1804, 1807, and 1810: the first four volumes were “Re-Printed: (from the London copy of A. Strachan, law printer to His Majesty) and sold by James Humphreys, no. 106, south side of Market-Street,” the fifth volume was “Printed by James Humphreys for I. Riley & Co. New-York,” and the last volume was “Printed and published by Isaac Riley.”Footnote 9
A leading authority on early American legal publishing , Michael H. Hoeflich, states that “[a]t the time of the Revolution, there were few law books available to American lawyers,” that “[f]or several subsequent decades, the growth of the law book trade was slow,” and that during the period 1770–1820, “book publishing and distribution was an essentially local activity and… most books published in the United States dealt with local legal concerns. This was also the period when the vast majority of law books…was imported from England…”Footnote 10 Up to 1800, few volumes of American case reports had been published,Footnote 11 and only three volumes of British decisions had been printed in this country, single volumes of Nisi Prius Reports compiled by Isaac Espinasse and Thomas Peake published in Hartford and Baltimore in 1795, respectively, and Latch's King's Bench Reports 1624–1627, published in Newbern in 1793 by the indefatigable Francois-Xavier Martin. Hoeflich quotes Justice Story's lament in 1813 that, with a volume ready for publication, the reporter of his decisions could find “‘no person willing to print them and pay any value for the copyright.” He contrasts the drastically changed situation just two decades later, which he attributes to professional demand, the growth of legal training, and the “stroke of genius from a marketing standpoint” of “the reconceptualization of the law as a science.”Footnote 12
Therefore, the American printing of Robinson's Admiralty Reports in the first decade of the nineteenth century was, ipso facto, unusual. It was the domestic printing of foreign reports, rare at that time, especially as it was a six volume series; Volume 6 of Cranch's reports of the Supreme Court of the United States itself did not appear until 1812, 2 years after the American printing of Robinson's Admiralty Reports was completed.
Below the surface, other anomalies abound with respect to both the English and American editions. The ledgers of Strahan's law printing business, which survive at the British Library, and existing copies of the first volume of the American edition, demonstrate the incompleteness of the bibliographical information in ESTC about the printing history of the Admiralty Reports in both Great Britain and the United States. Even more significantly, it was not the British government, Sir William Scott, the judge, or Christopher Robinson, the reporter, but rather Rufus King, then United States minister to Great Britain, a lawyer trained by Theophilus Parsons in Newburyport, previously a representative of Massachusetts at the Constitutional Convention in Philadelphia in 1787, a delegate to the Massachusetts Ratification Convention in 1788, and afterwards one of the first two United States senators from New York from 1789, who arranged for and partly subsidized with American government funds the publication in England of these judgments of the High Court of Admiralty of Great Britain. The American printing was organized, not by a printer, publisher, or bookseller but rather by Richard Peters, United States district judge for the District of Pennsylvania, using copies of the English edition he obtained directly from Secretaries of State Pickering, Marshall, and Madison, successively, to whom King supplied them. Although King's and Peters's stated purposes were not entirely congruent, they were substantially similar: King needed wider dissemination of British prize court procedures and precedents, so that Americans caught up in the toils of the High Court of Admiralty could know how to protect their interests, and even perhaps avoid those toils the next time, and Peters, charged with the administration of the law of nations, and his bar, needed the availability of current, applicable precedents by a respected judge.
Finally, the ownership of the surviving copies establishes that, in the United States, Robinson's Admiralty Reports did reach the highest levels of the republic of letters. Not only were these reports widely disseminated in the United States after publication, but also, Sir William Scott's fame was spread outside the confines of the legal profession in articles by Justice Joseph Story in The North American Review and Miscellaneous Journal, America's first literary magazine. Justice Story clearly found in Sir William Scott's judgments the clarity and order needed for “intellectual coherence within a cultural vacuum,” craved by the leading lawyers of the early American Republic.Footnote 13
Covering the period from 1798 to April 1, 1808, Robinson's Admiralty Reports represent only a portion—albeit the largest portion—of Sir William Scott's published admiralty opinions, and the discussion that follows is, in general, limited to them. With the knighting and promotion of Christopher Robinson to King's advocate in February and March, 1809, the reporting of Sir William Scott's decisions passed to another civilian, Thomas Edwards, who, in a single volume published in parts in 1810 and 1812, covered decisions from April 1, 1808 to July 30, 1812.Footnote 14 In 1812, Edwards also separately published fifty-five pages of a single category of Scott's decisions in 1809–12 as Reports of the Leading Decisions in the High Court of Admiralty in Cases of Vessels Sailing under British Licenses. The next reporter of Sir William Scott's admiralty decisions was John Dodson, also a civilian, whose two volumes of reports, published in 1815 and 1828, cover the periods 1811–15 and 1815–22.Footnote 15 The final reporter of Scott's decisions—as Lord Stowell—was John Haggard, in two volumes, the first covering the period 1822–25, and the second, shared with his successor, Sir Christopher Robinson, covering the period 1825–32.Footnote 16
During his tenure, five of Sir William Scott's admiralty judgments were published as separate pamphlets when they were rendered; the selections were prescient, because each had a dramatic impact, either jurisprudentially or politically. The earliest, The Maria, Paulsen Master, was published as The Swedish Convoy in a more abbreviated form by Christopher Robinson before any of his Admiralty Reports appeared, and is also found in its chronological place on page 340 of the first volume of the London edition. Scott's judgment insisted on the British Navy's right to search neutral ships even when in convoy escorted by a frigate of their own flag. The Swedes, and later the Danes, insisted on the opposite view, and the increasing tension between Great Britain and Sweden and, subsequently, its allies in “the Second Armed Neutrality,” which extended diplomacy could not dispel and partisan pamphleteering exacerbated, was ultimately resolved by Lord Nelson's destruction of the Danish fleet at the Battle of Copenhagen in 1801.Footnote 17
I. Legal Culture and Politics in London
The inbred culture of the Doctors’ Commons limited public knowledge about the process and judgments of the High Court of Admiralty. The advocates in that court numbered approximately twenty, and practiced within the Doctors' Commons, where the Court also convened.Footnote 18 Although historians differ about the degree to which any precedents even existed for the High Court of Admiralty to apply, the most the proponent of their existence can urge is that “[t]he admiralty court and the court of prize appeals had developed a body of unpublished precedents which the small closely knit group of civilians, like high priests of an occult religion, knew and treasured in their personal notebooks.”Footnote 19 For Americans whose ships had already been taken as prizes by British warships or privateers, and those ship owners who were anxious to know where the lines were drawn to try to avoid that result, the secrecy of British prize law, if law there was, was a tremendous obstacle.
In August, 1794, 6 weeks after his arrival in London for the negotiations which led to the “Jay Treaty,” Chief Justice John Jay approached Sir William Scott for “instructions for our people who have appeals or Claims to bring forward” in the admiralty courts, according to letters Jay wrote to Secretary of State Edmund Randolph.Footnote 20 Under date of September 10, 1794, Jay received an extensive opinion on that subject from Scott and John Nicholl, transmitted with a cover letter from Scott.Footnote 21 Jay wrote to Scott the same day, thanked him for his opinion, and informed him that he would provide a copy to the President.Footnote 22 Three days later, Jay wrote to Secretary of State Edmund Randolph, enclosing the opinion and reporting:
Another Subject remains to be mentioned-it appeared to me advisable that our People should have precise and plain Instructions, relative to the Prosecution of Appeals and Claims in cases of Capture. For that purpose I applied to Sir William Scott and requested him in concert with Doctor Nicholl to prepare them-we conversed on the Subject, and I explained to him my views and objects.
On the 10th of September I received these, enclosed with the following letter from Sir William which I insert on account of the friendly disposition towards our Country which it manifests, and which to me appears to be less uncommon here than we generally suppose.
I take the liberty of advising that these Instructions, with a proper title prefix'd, be printed as a pamphlet and published for general information.Footnote 23
Well into 1795, prior to his return to the United States, Jay continued to rely on Scott's assistance in managing “the business of American captures,” as Scott put it.Footnote 24 Scott even interceded with the British Foreign Minister, Lord Grenville, who wrote to Jay, after seeing Scott “on the subject of American ships,” that the three of them should have a conversation over dinner “to shorten and facilitate the business which is much my wish.”Footnote 25
However, when Rufus King arrived in London as United States minister in July 1796, the situation seems not to have improved: England and France were still at war, and both countries preyed on neutral American shipping. King had to cope with both unlawful activities by British naval commandersFootnote 26 and local Vice-Admiralty Courts in British colonies, and the jagged jurisdictional boundaries between the High Court of Admiralty in London and the bilateral group of Commissioners appointed under Article 7 of the Jay Treaty.Footnote 27 King seems to have continued Jay's practice of using Sir William Scott as his counsel, obtaining an opinion from Scott dated February 4, 1797, on British recognition of American citizenship for British nationals who settled in the United States.Footnote 28 The High Court of Admiralty posed its own challenges because of delays occasioned by its judge, Sir James Marriott.Footnote 29 King's increasingly vocal complaints to Lord Grenville were joined by other countries: “…his incapacity has been notorious and the Government has received repeated Complaints on this head from the Ministers of all the Neutral Nations.”Footnote 30 By the time of King's October 16, 1798 letter to Secretary of State Pickering, Marriott had resigned, and King repeated the speculation in his October 6 letter that Marriott's successor would be Sir William Scott; 11 days later, Scott was appointed.
King's duties, and perhaps his inclination as well, kept his attention focused on Scott's decisions, and taken at face value, King's comments to the Secretary of State suggest that, at this time, Scott disappointed him by a lack of liberality in the protection of neutral rights. In a report to Secretary of State Pickering, dated March 15, 1799, King said: “Since the appointment of Sir William Scott in this Court, the business proceeds with great dispatch, tho' I hear that Sir William's decisions manifest an extension instead of a greater limitation of the Rights of Belligerents in respect to Neutrals.”Footnote 31 The next day, in a letter of a close political comrade, Robert Troup, until the year before briefly United States district judge for the District of New York, King said much the same thing:
The present judge of the H.C. of Admty. is a man of uncommon abilities; I don't recollect much of his Predecessors, but I am inclined to think him the ablest Judge that has presided in that Court. His Predecessors can have no reason on earth, as Lord Kenyon says, to complain of this opinion. You must not infer from hence that Sr. Wm. Scott does not condemn neutral Ships and Cargoes, for I am quite apprehensive he will in this as in most other respects hold the same distinguished Pre-eminence over his Predecessors.Footnote 32
Writing to Secretary of State Pickering 4 months later, King attributed his concerns to the duality of Scott's official roles:
The Judge of the High Court of Admiralty undoubtedly possesses great learning and distinguished abilities, but he is also a member of the King's Privy Council, occupied in the discussion of questions of State, and consulted concerning those maxims that have so far extended and which are employed to increase & to preserve the dominion of England upon the seas, and he cannot therefore avoid carrying the recollection of these views into the Court, nor prevent their influence upon the questions that are there to be decided.Footnote 33
In his earlier letter to Troup, written nearly 3 years after his arrival in London, King also expressed his impatience with the limited availability of knowledge of how the High Court of Admiralty functioned in prize cases:
If practicable, I will procure for you some information respecting the Process, &c, of the Prize Court of this Country. There is no book extant that gives any satisfaction upon this Subject… . I have taken some pains to enquire of those who ought to understand the mode of proceeding in the Prize Court, but my enquiries have been made to little purpose; for here as in all other Cases of Knowledge passing by Tradition, the reports of the initiated are not only imperfect but various. The College of Doctors, who alone are counsellers or Speakers in this Court, does not consist of more than twenty members, who perpetuate themselves by the admission of new Brothers. These are persons educated at one of the Universities, where they must have resided Eleven years before they could have received the Degrees which form the indispensable qualification for an admission into the College of Doctors Commons, where they rarely arrive before they have attained thirty years of age. Give us good Lord peace in our Days, is not one of the prayers of this Brotherhood… .Between ourselves I have seen much less reason to discredit our own Courts, and lawyers, and learning and blind Justice, as well as somewhat less reason to admire those of foreign Lands than my simplicity had lead me to think I should !!
II. The Decision to Publish Sir William Scott's Decisions
What information there is about the decision to publish Scott's Admiralty Decisions comes from two of Rufus King's published letters, and, improbably, from a diary entry by Philadelphia lawyer Horace Binney 38 years later. The first published disclosure occurred in an anonymous book review in The American Jurist and Law Magazine in 1839: “This publication (as we have understood in England) was most earnestly urged, if not originally proposed by our able minister, Mr. King; who, in order to aid this desirable object, engaged to take a considerable number of the copies for the use of our government and country.”Footnote 34
At the end of a letter to Secretary of State Timothy Pickering on other subjects, dated February 28, 1800, King said: “Some time since I informed you of my motives in taking pains to effect the Publication of Sir Wm. Scott's Decisions in Prize cases. Having by way of encouragement subscribed for a number of Copies, some of which have been sent to you, I shall send you a dozen more by Mr. Dandridge, who leaves me in a day or two.”Footnote 35 More than 2 years later, having been continued as minister under newly-elected President Thomas Jefferson, under date of July 21, 1802, King wrote to the new Secretary of State, James Madison:
As an item in my contingent account relates to the Publication of Robinson's Admiralty Reports, it may be thought proper that I should say a word or two in explanation of this expense. It has not, as you may well know, been the practice of this country to publish Reports of the decisions of its prize Tribunals; and while a pretty general opinion has prevailed that England administers the Law of Nations in matters of prize with great rigour, Englishmen have uniformly asserted that these Tribunals have manifested greater moderation in that respect than those of any other Nation. So long as the decisions of the English prize Courts remained unpublished, this Disagreement would continue to exist, and so long likewise foreign States would remain without precise notion of the maxims of Public Law by which these Tribunals regulate their Decisions. Upon Sir William Scott's appointment as Judge of the High Court of Admiralty, being alike distinguished for Learning and Integrity, and desirous of extending his reputation beyond the limits of his own country, it occurred to me that the opportunity was a favourable one to endeavor to promote the publication of the Reports of his Court, the natural effect whereof upon such a mind as Sir William Scott's seemed likely to be in favor of a mild interpretation of the Laws of War and Peace, and what appeared to me to be of much importance, such a publication would have a Tendency to procure for this important branch of public Law a fixed character in place of the uncertain and contentious Reputation it has hitherto possessed: by going into the hands of merchants and men of business, these Reports would moreover enable them to avoid such adventures as might be liable to interruption. I accordingly conversed with Sir William Scott upon the subject; at first the proposal encountered difficulty chiefly on account of the contrary usage; this objection finally yielded, and Sir William Scott acquiesced, provided Government would consent and a suitable Reporter could be found to undertake the work. I then applied to the Minister and suggested such arguments as seemed to me likely to engage his attention, and, after a time, the Government gave its consent and nothing remained but to find a Reporter. As these Reports were not expected to be called for by professional men, who are the principal purchasers of the Common Law Reports, it was apprehended that the demand might not be sufficient to reimburse the expenses of publication, and to obviate this objection, recourse was had as usual in cases of this kind to last [sic] subscriptions. Considering the utility of publication and the part I had taken to promote it, I thought it expedient to subscribe for Fifty Copies. These have been sent from time to time, and in the order of their publication, to the Department of State, except the five copies which I have distributed among the American Ministers in Europe and some other public Characters.Footnote 36
Christopher Robinson expressed much the same sentiment in the “Advertisement,” beginning his pamphlet publishing both Scott's Swedish Convoy judgment and Volume I of his Admiralty Reports: “The honour and interest of our own Country are too deeply and extensively involved in its administration of the Law of Nations, not to render it highly proper to be known here at home, in what manner and upon what principles its Tribunals administer that species of law: and to foreign States and their subjects, whose commercial interests are every day discussed and decided in those Courts, it is surely not less expedient that such information should be given.”Footnote 37
Finally, an entry in the diary of Horace Binney, the great lawyer from Philadelphia, dated April 20, 1837, reports: “Dined at Sir William Alexander's with Sir John Nicholl, fresh, though much advanced, being upward of eighty. Sir John informed me that Mr. King, our minister to England, and himself first urged Dr. Robinson to report the Admiralty decisions of Sir William Scott. He made inquiries of me concerning Rufus King and two or three other Americans whom he had known in London, and who had been dead perhaps twenty years… .”Footnote 38 Robinson succeeded Scott in 1828 as judge of the High Court of Admiralty and served for 5 years until his death in 1833, when he was succeeded by Nicholl, who in turn served for 5 years until his death in 1838.
First, King's statements make perfectly good sense. Certainly Scott seemed to have a “friendly disposition,” as Jay put it, toward the United States, which King was seeking to capitalize on. That friendship persisted after Scott went onto the bench, and included political efforts by Scott in the interest of the United States.Footnote 39
Second, the inaccessibility of prize law and Admiralty Court procedures is a theme that runs through the correspondence of this period, with King's March 16, 1799 letter to Robert Troup being an example. But the problems went beyond those identified there. The absence of reports of decisions of the High Court of Admiralty permitted the regional Vice-Admiralty Courts in the English colonies to adopt rules that were the opposite of settled law, or as Sir John Nicholl put it: “…I have the honor to report that the principle stated to have been lately adopted in the Courts of Vice-Admiralty at Jamaica and Providence, is directly in opposition to the decisions daily passing in the High Court of Admiralty and the Court of Appeal.”Footnote 40
Third, the absence of such reports permitted wholly erroneous newspaper reports to circulate misrepresenting adjudications in the High Court of Admiralty. According to an August 29, 1799 letter from King to Secretary of State Pickering:
The News Papers of the 23d instant contain a report of the Trials of the American Ships Minerva and Nymph, captured by a French Privateer and recaptured by an English Frigate. According to this Report, the Recaptors not content with the Salvage of an Eighth as heretofore, demanded a condemnation in toto upon the absurd doctrine that twenty four hours enemy possession divests the first Owner of his property… .The Report likewise contains some remarks of the Judge alike unexpected and extraordinary. As these Papers may reach the United States and produce the like sentiments there as they have excited here, I think proper to inform you that these Reports in every exceptionable point are wholly erroneous. – Sir William Scott sent for Mr. Williams to express to him how much he had been hurt by the misrepresentations which had gone abroad concerning these Trials…Footnote 41
Finally, there is King's insightful comment that the “natural effect” of the publication of Scott's decisions “upon such a mind as Sir William Scott's seemed likely to be in favor of a mild interpretation of the Laws of War and Peace.” Although Scott could clearly be a “robust judge,” events later in his life suggest that he sought to avoid personal controversy.Footnote 42 Evidently, King thought that having to dispense justice publicly would lead Scott to be more even-handed.Footnote 43
III. Printing and Selling Robinson's Admiralty Reports
The decision to publish Scott's collected admiralty judgments was clearly reached months before their first appearance in November 1799. Robinson's “Advertisement,” dated June 27, 1799, introducing his pamphlet report of Scott's Swedish Convoy judgment, concludes: “The Editor takes the present opportunity of mentioning that he has taken accurate Notes of many other Judgments delivered upon Questions of the Law of Nations in the High Court of Admiralty, and entertains the intention of communicating them to the Public.” The Swedish Convoy pamphlet was printed in two editions of 250 copies each in June 1799Footnote 44 and published in July.Footnote 45
Key to an understanding of the form that the Admiralty Reports took, and the current incomplete information in the descriptions in ESTC of the publications that took place in London and Philadelphia, is a recognition that each of the six volumes of Robinson's reports was published in two separate parts, printed and released months apart, in England invariably in different calendar years. In England it appears that the final title page, with publication data including year of publication, was issued with the first part of the first volume when it was printed and released, but thereafter, it was issued with the second part; in contrast, with respect to the reprinting of the first volume in Philadelphia, separate title pages for the volume, differing by publisher, were issued with each of the two parts.
A. London
Robinson's Admiralty Reports were printed over a 9 year period by “A. Strahan, Law-Printer to the King's Most Excellent Majesty” for J. Butterworth, a prominent London law book publisher, and J. White of Fleet Street.Footnote 46 The Strahan firm records in the British Library reflect the printing schedule and output for the six volumes produced for its customer, Butterworth.Footnote 47 See Table 1 for details.
Table 1 The Strahan Firm Records in the British Library, Reflecting the Printing Schedule and Output for the Six Volumes Produced for its Customer, Butterworth.
Strahan also printed—and charged separately for—indices, appendices, and covers, and, in the ledgers, for wrappers; corrections and “Matter Deleted” were also extras. For Volume 1, Part 1, for example, paper and printing charges were ₤25 and sixpence, “corrections and Matter Deleted” ₤5, 3 shillings, and sixpence, and 1,000 covers were 17 shillings.
The copy of Volume I, Part I that King inscribed to Chief Justice Oliver Ellsworth, then in Paris on his diplomatic mission, can be found in the New York Historical Society, as issued in gray paper covers bearing, in large letters, “VOL. I PART I” and the date, 1799, beneath which appears: “N.B. These Reports will be continued regularly.” and below that: “Speedily will be published, A new Edition, with considerable Additions, of Mr. Parke's Treatise on the Law of Marine Insurances.” The back of the front cover advertises books “lately published by J. Butterworth”; the title page is identical to the front cover except that it lacks the trade language and, in place of the notation “Vol. I Part I,” “Volume The First” appears. The single example reviewed of a separate Part II of Volume I as issued contains no title page. However, in the subsequent volumes, the publication date on the title page corresponds, not to the date of issuance of the first part, but rather to that of the second. As all six volumes of the London version are made up of parts issued in different years, the Strahan ledgers and contemporaneous publications show that the ESTC entries for the London version of these reports date the publication of each volume either the year before the volume was complete, in the case of the first volume, or the year following the publication of the first part of that volume.Footnote 48 That is what the title page for each actually says, even though to that extent, each title page is not accurate.Footnote 49
B. Philadelphia
Under date of May 17, 1801, Richard Peters, United States district judge for the District of Pennsylvania, wrote to James Madison, President Thomas Jefferson's recently appointed secretary of state:
Mr King has heretofore transmitted the Numbers, as they came out, of Robinson's Admiralty Cases, to the Office of State. At my Request & under an Engagement to have them printed for general use, Col Pickering furnished me with the first Number, & General Marshal[l] with the second; which have been reprinted. If any Succeeding Numbers have arrived you will oblige me & the Gentlemen of my Bar, by transmitting them. It is best to have the whole reprinted in the same Type, & of the same Size.Footnote 50
Two weeks later, on June 1, 1801, Peters wrote to Madison again:
I have been much engaged since Reciept of your Favour, enclosing Robinson's Cases… It was with Difficulty I prevailed on the Printer to continue the Publication of Robinson's Cases. It is a Work much interesting to the Citizens of these United States, diplomatic, juridical, mercantile, &ca. Yet the Printer declares he has not been paid for the Impression of the first Volume. I thought the Trade of Book printing was more profitable, than from this Specimen it appears to be.Footnote 51
As noted earlier, the ESTC entry for the Philadelphia edition credits James Humphreys with printing and publishing the first four volumes and with printing the fifth for Isaac Riley, who is said also to have printed and published the sixth. But that is not actually what occurred; the bibliographical circumstances have again been obscured because of the publication of the reports in parts, but here in a different way. The proof is found in the surviving copies that belonged to Thomas Jefferson and James Kent.
Thomas Jefferson's copy is described in the Sowerby catalogue as being limited to the first two volumes: “Vol. I is a mixed copy, the first part printed by Poulson at Philadelphia, the second half being the English edition printed by Strahan”Footnote 52—no mention of Humphreys. James Kent's copy appears to contain all of the pages necessary to describe, if not to resolve, how Volume I was actually published.
Kent's copy starts with a title page for “Volume The First,” which is “Printed by Zachariah Poulson, Junior, No. 106, Chesnut-street—1800.” After page 156 appears a second title page for “Volume The First,” this time “Philadelphia, Re-Printed: (from the London Copy of A. Strachan, Law Printer to His Majesty) and Sold by James Humphreys, No.106, South Side of Market-street—1800.” Bound more or less in the middle are two single half-title pages, one for “Vol. I, Part I” with no name on it, the second “Vol. I, Part II” with James Humphreys' name on it. Therefore, it appears that Poulson printed Part I of Volume I and Humphreys printed Part II; given a choice of two title pages, except for James Kent, those persons binding their copies chose the one that came with the last installment, Humphreys', rather than the first, Poulson's, and that is what ESTC recorded.Footnote 53
The May 20, 1800 edition of The Gazette of the United States in Philadelphia announced the publication of Volume I, Part I, of Robinson's Admiralty Reports and its availability from Zachariah Poulson Jun'r at No. 106 Chesnut Street for $1.00; 1 month earlier, beginning April 19, the Gazette periodically published Poulson's notices that the reports were “now in the press, and speedily will be published... .” In Kent's copy of Volume I, and apparently from their placement (for what that is worth) part of Part I, are the cover letter and opinion which Scott and Nicholl provided to John Jay under date of September 10, 1794, discussed previously. Preceding the text is the following heading: “The following copies of a LETTER and INSTRUCTIONS from the Right Hon. Sir William Scott and Sir John Nicholl, prepared at the Instance of His Excellency John Jay, Esquire, though not in the London Edition of this Work, cannot otherwise than prove an acceptable Introduction to this American Edition.”Footnote 54
Poulson, the son of a printer of the same name, was a substantial Philadelphia printer in his own right. However, his production for others ceased almost completely after he purchased and assumed the publication for the next 39 years of a daily newspaper, renamed Poulson's American Daily Advertiser, on October 1, 1800.Footnote 55
James Humphreys had begun his career in printing in Philadelphia in 1775 as a printer of The Philadelphia Ledger and of books, including one attacking Thomas Paine. In late 1776 Humphreys fled Philadelphia, returning with the British Army, which he followed to New York in 1778. At the end of the war, he left for London, where he received government subsistence and testified before the Royal Commission on the Losses and Services of American Loyalists. From London, Humphreys went to Nova Scotia, the Loyalist stronghold; there he published The Nova Scotia Packet, returning to Philadelphia in 1797, where he resumed the printing of books until his death in 1810.Footnote 56
Humphreys's succession of Poulson was first advertised in the August 23, 1800 Gazette of the United States: Humphreys announced the availability of Part I of Volume I at his premises on Market Street and added: “The second Part which concludes this Volume is now in the press, and will be published with all the expedition possible.” Humphrey's publication of Part II was announced in the Gazette on October 23, with the following promotion: “The following work may perhaps appear from its Title as only necessary to the Gentlemen of the Bar-The whole trading world are interested in the knowledge of its contents. It is replete with information to the Man of Business; and the Merchant, the Underwriter, the Sea Captain, &c. &c. will find themselves particularly and immediately concerned in the knowledge it affords.”
The American Review and Literary Journal for July, August and September, 1801 advertised that:
James Humphreys, of Philadelphia…has also published the first and second volumes of Robinson's Reports of Cases in the High Court of Admiralty in Great-Britain. These reports are a very valuable addition to the very few books which we have relative to the proceedings and decisions of the British Admiralty Court. They are peculiarly deserving the attention of the American lawyer whose inquiries are directed to this branch of law, since he must have hitherto been almost wholly ignorant, for want of reports, of the principles which have been decided in a court where the rights of so many of our own citizens are litigated. The inquisitive and intelligent merchant may, by the perusal of these volumes, add to his stock of information many important particulars relevant to the conduct of trade and the law of nations.Footnote 57
On May 7, 1802, the Philadelphia Gazette advertised that “Mr. James Humphreys has put to press the fifth Number of Robinson's Admiralty Reports, Part I, of Vol. III.”Footnote 58 However, in 1806, although Humphreys was the printer for Volume V of Robinson's Admiralty Reports, the publisher of that volume was Isaac Riley, whose 1806 A Priced Catalogue of Law Books, to be had at the Law Repository of I. Riley and Co., City-Hotel, Broad-Way, New-York offered four volumes for $11 and stated that “5th in the press”, although it did not emerge from the press until 1807. Riley published the sixth and final volume in 1810.Footnote 59
No explanation has been found for the transfer of the publication from Humphreys to Riley. Perhaps Humphreys was preoccupied in 1805 and 1806 with his four volume publication—evidently in two editions, the first by a subscription led by President Thomas Jefferson—of Bryan Edwards's The History, Civil and Commercial, of the British Colonies in the West Indies.Footnote 60 However, Judge Peters's June 1, 1801 letter to James Madison, quoted above, reports Humphreys's complaint that the edition of Robinson's Admiralty Reports he was printing in Philadelphia was unprofitable.
As noted above, the first three Parts issued in London sold for 5 shillings each, and Poulson's Part I of Volume I sold for $1; the London edition was, therefore, slightly more expensive in London than the Philadelphia edition was in Philadelphia. For any copies imported from London for sale, there would also be the London to Philadelphia shipping costs, although judged by available information in roughly parallel situations these should not have been substantial.Footnote 61 However, as the Philadelphia edition was reprinted from the London edition, the latter would be available in Philadelphia for professional use sooner: the Part I of Volume III, which the Philadelphia Gazette reported on May 7, 1802 that Humphreys had “put to press,” had been printed by Strahan in October 1801.Footnote 62
That London copies of Robinson's Admiralty Reports were being sold in Philadelphia at the same time that Humphreys was printing them is demonstrated by Bibliotheca Legum Angliae. Davis's Law Catalogue For 1802….1803, of the Latest English and Irish Editions, printed in or after June 1802 for George Davis's “Store exclusively for the sale of Law Books,” ironically by none other than James Humphreys. On page 7 under “London, Octavo, Reports”, there appears:
And on page 12, under “Dublin, Octavo, Reports”:
Although the difference of $1 is the equivalent of $15 today, the two editions were demonstrably in competition.Footnote 63 Moreover, the assignment of the Philadelphia edition to the Dublin Octavo section of the catalogue was an explicit characterization that it was like an Irish reprint of the time, cheaper because of its smaller size, smaller print, and poorer quality paper, all of which are still evident when the two editions are compared.Footnote 64 This may explain why Jefferson and Kent began with the purchase of the Philadelphia edition but then moved to the London one. Finally, although not a starred edition as such, the Philadelphia volumes contain tables of cases that give not only the page references to the cases as reported in that edition, but also the page references to the cases as reported in the London edition, effectively treating the London edition as the authoritative one.
The size and number of the London editions establish that the London publication did not need Rufus King's subscription to fifty copies to be successful. Both Volume I and Volume II were quickly reprinted by Strahan, as shown. In addition, several repositories hold copies of a third edition of Volume I, printed in 1806, and it appears that there was a fourth edition in 1812. As the admiralty bar in London did not number more than twenty, the question naturally arises: who were the purchasers of the thousands of copies printed in London, not to mention of the Philadelphia edition?Footnote 65
A number of different sources permit educated guesses. Certainly both judges and lawyers not only in Britain but also—as Judge Richard Peters believed—in the United States, were potential purchasers. Further, although the admiralty bar in London was very small, the importance of prizes as a source of income to naval officers and men often away at sea and the volume of prizes needing processing and, potentially, judicial involvement created a substantial superstructure of prize agents and navy agents: middlemen representing and empowered by interested officers and crew members to manage all but the trial of legal issues involved in the detention and liquidation of their prizes and their cargoes.Footnote 66 These seem a likely market for Robinson's Admiralty Reports. Warship captains needed to know the law, and some carried law books on their vessels.Footnote 67 Finally, in the context of Robinson's Admiralty Reports, both Rufus King and the American Review and Literary Journal thought merchants would be potential buyers, to familiarize themselves with the legal issues relevant to their international trading activities.
Certainly the British government found the publication of Robinson's Admiralty Reports useful. When the pamphlet war on neutral shipping got under way after the resumption of hostilities with France in 1803, the first and most effective publication for the British position was James Stephen's anonymous War in Disguise; or, the Frauds of the Neutral Flags in 1805, in support of the decision of Lords Commissioners of Appeals in Prize Causes in The Essex.Footnote 68 After quoting several pages from Scott's November 1799 decision in The Immanuel, Eysenberg Master, 2 Rob. 186, the pamphlet proclaims:
I quote from the second volume of the Reports of Dr. Robinson; a work of transcendent value; and which will rise in the estimation of Europe and America, in proportion as the rights and duties of nations are better known and respected. It repays the attention of the English lawyer, statesman, or scholar, not only by legal and political information of a highly important kind, and which is no where else to be so fully and correctly obtained; but by exhibiting some of the happiest models of chaste judicial eloquence.Footnote 69
IV The Decision to Reprint Robinson's Admiralty Reports in Philadelphia
When I came to the Bench there were no reports or State precedents. The opinions from the Bench were delivered ore tenus. We had no law of our own, and nobody knew what it was.”
James Kent, quoted in William Kent, Memoirs and Letters of Chancellor Kent 1763–1847 (Boston: Little, Brown 1898), 117.Article III, Section 2, of the Constitution extended the judicial power of the United States to, inter alia, “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction…”Footnote 70 According to Chief Justice Marshall, writing for a unanimous court:
The Constitution certainly contemplates these as three distinct classes of cases; and if they are distinct, the grant of jurisdiction over one of them, does not confer jurisdiction over either of the two. The discrimination made between them, in the Constitution, is, we think, conclusive against their identity. If it were not so, if this were a point open to inquiry, it would be difficult to maintain the proposition that they are the same. A case in admiralty does not, in fact, arise under the Constitution or laws of the United States. These cases are as old as navigation itself; and the law, admiralty and maritime, as it has existed for ages, is applied by our Courts to the cases as they arise.Footnote 71
Justice Iredell had said much the same thing specifically about prize courts in February 1795, while Chief Justice Jay was in England: “I think all prize cases whatsoever ought to belong to the national sovereignty. They are to be determined by the law of nations. A prize court is, in effect, a court of all the nations of the world, because all persons, in every part of the world, are concluded by its sentences, in cases clearly coming within its jurisdiction.”Footnote 72
This view seems to have been commonly accepted. Justice James Wilson, a legal philosopher serving on the Supreme Court of the United States in its early days, appears to have struck the same note in the lectures that he gave at the College of Philadelphia starting in 1790. The ninth of his thirty-five lectures—published in 1804, after his death, by his son—concerned the law of nations. Singling out the law of merchants and the law maritime as branches of the law of nations and beneficiaries of recent exposition in judgments by Lord Chief Justice Mansfield, Justice Wilson pointed out that the law of nations “and especially …the maritime law is not the law of a particular country,” and asked the question, “the greatness of which is selfevident: ‘How far, on the principles of the confederation, does the law of nations become the municipal law of the United States?’” Finding that Article III of the Constitution had continued the jurisdiction of the courts to enumerated cases in which the law of nations had been applied before the ratification, he raised the question rhetorically what law should now apply. Noting that in its common law courts England applied the law of nations as part of the law of England, he concluded that its similar treatment by the courts of the United States would lead to: “an immense improvement… in the application and administration of the law of nations ! … This deduction, if properly founded, places the government of the United States in an aspect, new, indeed, but very conspicuous. It is vested with the exalted power of administering judicially the law of nations, which we have previously seen to be the law of sovereigns… What a beautiful and magnificent prospect of government is now opened before you !”Footnote 73 But before leaving for England, Chief Justice Jay had pointed out that this “magnificent prospect” was accompanied by serious responsibilities that required the existence of “a national judiciary, to be instituted by the whole nation, and to be responsible to the whole nation”:
[T]he United States, had, by taking a place among the nations of the earth, become amenable to the laws of nations; and it was in their interest as well as their duty to provide, that those laws should be respected and obeyed; in their national character and capacity, the United States were responsible for the conduct of each State, relative to the laws of nations, and the performance of treaties; and there the inexpediency of referring all such questions to State Courts, and particularly to the Courts of delinquent States became apparent.Footnote 74
As district judge in Philadelphia, Richard Peters was the man on the firing line, discharging these responsibilities with considerable caution.Footnote 75 Peters also shared with King the Federalist tenet of the importance of international commerce to America's success.Footnote 76
But he needed precedents, and, other than treatises by European civilians, he had none. Under the Articles of Confederation, each state had its own admiralty court,Footnote 77 commonly with jury trials.Footnote 78 Review was available in the Federal Court of Appeals, but that court's reported decisions for its entire existence fill a mere forty-two pages, covering a 6 year period, in the second volume of Dallas's reports.Footnote 79 British admiralty and prize precedents were secreted in the notebooks of the small group of practitioners in Doctors' Commons. It is hardly surprising, given his responsibilities, that Judge Peters considered Robinson's Admiralty Reports “much interesting to the Citizens of these United States, diplomatic, juridical, mercantile…” and was actively trying to get them into the hands of the Philadelphia Bar.Footnote 80 In a letter to Sir William Scott in 1819, Justice Joseph Story summed up the need this way:
[T]he Courts of this country…had not the benefit of a long-established and well-settled jurisdiction, and of an ancient customary law, regulating the practice of the Court. The traditions of former times and the modes of proceeding, were not familiarly preserved by a body of regular practitioners in the Court. The Admiralty Law was in a great measure a new system to us; and we had to grope our way as well as we could by the feeble and indistinct lights which glimmered through allusions incidentally made to the known rules and proceedings of an ancient court. Under these circumstances, every case, whether of practice or principle, was required to be reasoned out, and it was scarcely allowable to promulgate a rule without at the same time expounding its conformity to the usages of Admiralty tribunals.Footnote 81
V. Into the Republic of Letters
“[P]ublications and correspondence that generated a transnational public sphere, which contemporaries called ‘the republic of letters’… enabled thinkers to communicate across space, including national boundaries and, Americans believed, oceans.”Footnote 82
A. Association Copies
More than 200 years later, still-surviving association copies, or references to such copies, make the case that Scott's judgments reached the contemporary American legal intelligentsia through the medium of Robinson's Admiralty Reports.
The survival of Part I of Volume I owned by or intended for Oliver Ellsworth, Jefferson's two volumes, and Kent's full set has already been mentioned.Footnote 83 A copy of the first volume of the third edition with a manuscript by Justice Story is at the Harvard Law School; in addition, The 1846 Auction Catalogue of Joseph Story's Library offered “449 [-] Robinson's Admiralty Reports. vol. 5 Philadelphia 1801,” the description being obviously flawed either in the volume number or the date.Footnote 84 Pierre du Ponceau owned a copy of the American edition: he used it extensively in his translation of Bynkershoek in 1810, and it was auctioned with the rest of his books in 1844 after he died.Footnote 85 Undoubtedly these were among the books he made available to James Madison in the summer of 1805, when Madison was in Philadelphia writing his denunciation of the British Rule of 1756.Footnote 86 In 1816, Daniel Webster had five volumes of Robinson's Admiralty Reports in his library, probably the Philadelphia edition.Footnote 87 Yale Law School's copies of the volumes of the Philadelphia printing have an impressive provenance: Simeon Baldwin, a judge of the Superior Court and the Connecticut Court of Errors; his grandson, Simeon Eben Baldwin, Governor of Connecticut; J. Warren Brackett, a lawyer and member of the Common Council of the City of New York; and David Daggett, founder of the Yale Law School, United States senator, mayor of New Haven and chief justice of the Connecticut Supreme Court of Errors. St. George Tucker's copies of Volumes 2–4 of the Philadelphia edition also survive.Footnote 88
B. Citation in Contemporaneously Reported Cases
Even more impressive than the surviving association copies is the speed with which Robinson's Admiralty Reports were widely cited and quoted by bench and bar in the United States. Given that Volume I, Part I, was printed in November 1799 in London and was published in Philadelphia in May 1800, it is striking that Justice Chase should have referred to Scott by name and quoted from his opinion in The Santa Cruz, as reported in the Philadelphia edition of Volume I, Part I, in his opinion in Bas v. Tingy in the August 1800 term of the Supreme Court.Footnote 89 Other references to Robinson's Admiralty Reports appear in William Tilghman's notes for his argument and his notes of William Rawle's argument, although they are not in Dallas's summary of either.Footnote 90
Similarly, in Talbot v. Seeman, a prize case at the August 1801 term of the Supreme Court, in the latter part of their arguments counsel for both sides cited repeatedly and sometimes specifically (“American ed.”) the American edition of Volumes I and II of Robinson's Admiralty Reports, and several times referred to Scott or Robinson by name.Footnote 91 Chief Justice Marshall relied on several of Scott's decisions, and distinguished one with some difficulty, in his opinion for the Court in Rose v. Himely.Footnote 92
By 1801, at least Part I of Volume I had reached Charleston, where Judge Bee used the London citation of a case reported in it; his reports contain several other citations to later volumes also.Footnote 93 In his two volume Admiralty Decisions in the District Court of the United States, for the Pennsylvania District by the Hon. Richard Peters, comprising also Some Decisions of the Same Court by the late Francis Hopkinson, Esq., (1807), Judge Peters sprinkled references to the Philadelphia edition of Robinson's Admiralty Reports in footnote annotations, but for the most part these seem to have been added after the decisions were rendered in further support of the result; in some cases Judge Peters's decision predated the one by Sir William Scott that was referred to.Footnote 94
C. The Next Two Centuries
These early Supreme Court cases merely mark the beginning of the spread of Robinson's Admiralty Reports into American jurisprudence. Du Ponceau's translation of Bynkershoek, published in 1810, was reliant to some degree on Robinson's Admiralty Reports, although the translator was careful, as a Frenchman would be, to note when they reflected what he considered to be the opportunistic British view.Footnote 95 More embracing was Joseph Story, then a practicing lawyer in Salem, Massachusetts, who in 1810 published with his annotations the second American edition, from the third London edition, of Charles Abbott's A Treatise of the Law Relative to Merchant Ships and Seamen.Footnote 96 Using a format similar to Tucker's Blackstone, published earlier in that decade, Story supplemented Abbott's text with annotations, some of them running for pages, accompanied by American authorities and, in the instance of salvage, marshaling American and English authorities side by side. In addition, as he stated in the introduction, he “[i]n some few cases…added English authorities which were not noticed by Mr. Abbott, or have been published since the last edition of his work.”Footnote 97 These last included a number of new citations to cases “not noticed” in volumes of Robinson's Admiralty Reports available to him.
Once on the bench, Justice Story included Robinson's Admiralty Reports among the authorities in his landmark admiralty decision, De Lovio v. Boit, and in earlier cases in the Massachusetts circuit court.Footnote 98 As litigation arising from the War of 1812 began to reach the Supreme Court at its February 1814 and 1815 terms, Justice Story, Justice William Johnson, and Chief Justice Marshall each wrote opinions for the Court that treated decisions of Sir William Scott as dispositive,Footnote 99 but Chief Justice Marshall also wrote the opinion for the Court reversing Justice Story's decision in The Emulous,Footnote 100 and he and Justice Story more than once found themselves on opposite sides of a divided Court in prize cases during this period.Footnote 101
In dissent in The Venus, Chief Justice Marshall began his extensive canvass of Sir William Scott's decisions in Robinson's Admiralty Reports with the statement: “I respect sir William Scott, as I do every truely great man; and I respect his decision; nor should I depart from them on light grounds: but it is impossible to consider them attentively, without perceiving that his mind leans strongly in favor of the captors.”Footnote 102 And in a case the following year in which the appellant sought to distinguish decisions by Sir William Scott, and the appellee relied on Scott's position that the rule “has been so repeatedly decided… that it is no longer open to discussion,” Chief Justice Marshall wrote for a unanimous court:
The United States, having, at one time, formed a component part of the British Empire, their prize law was our prize law. When we separated, it continued to be our prize law, so far as it was adapted to our circumstances and was not varied by the power which was capable of changing it. It will not be advanced, in consequence of this former relation between the two countries, that any obvious misconstruction of public law made by the British Courts, will be considered as forming a rule for the American Courts, or that any recent rule of the British Courts is entitled to more respect than the recent rules of other countries. But a case professing to be decided on ancient principles will not be entirely disregarded, unless it be very unreasonable, or be founded on a construction rejected by other nations.Footnote 103
This statement was mild compared to the earlier, increasingly shrill pamphlet war, which began with the resumption of hostilities between Britain and France in 1803 and helped to fuel the War of 1812.Footnote 104 It had its origins in the Rule of 1756, promulgated by the British in the Seven Years War, prohibiting neutrals from engaging in wartime in trade between an enemy's colony and its home territory if they were excluded from it in peacetime, a doctrine that worked in parallel with the disputed British denial of the doctrine of “free ships make free goods.”Footnote 105 While expounding the Rule in The Immanuel, in his decision in The Polly in February 1800 Scott created an indulgent workaround that treated landing and paying duties on goods in the neutral shipper's home country as conclusively interrupting the prohibited “continuous voyage” from the enemy's colony to its home territory.Footnote 106 Stricter enforcement of the Rule of 1756 after 1803 culminated in the decision by Sir William Grant, Master of the Rolls, presiding for the Lords Commissioners of Appeal in Prize Cases in The Essex, in which he effectively overruled The Polly. Footnote 107 Because of the similarity in the judges' names and the publication in Volume V of Robinson's Admiralty Reports of Grant's related decision, The William, Tefry, Master, and of The Maria, Jackson, Scott's acquiescence in The Essex, Scott became America's whipping-boy for The Essex.Footnote 108
Nevertheless, Justice Story remained a steadfast admirer of Sir William Scott. He fought alone for the application of the Swedish Convoy case and other judgments of Scott to neutral goods on an armed belligerent vessel in The Nereide, Bennett, Master. Footnote 109 He relied heavily on Robinson's Admiralty Reports in the two notes—On the Practice in Prize Causes and On the Rule of the War of 1756—which he contributed anonymously to Volume I of Henry Wheaton's Reports of Cases Argued and Adjudged in the Supreme Court of the United States. February 1816. Footnote 110 He also corresponded with Scott, starting with a letter in 1818 forwarding the first two volumes of reports of Story's own decisions, and continued intermittently until Scott's death.Footnote 111
Justice Story brought Scott's jurisprudence to a wider audience than the judiciary and the Bar. In 1818, in the North American Review and Miscellaneous Journal, reviewing Jacobsen's Laws of the sea with Reference to Maritime Commerce During Peace and War, he quoted favorably from its text:
As to the law of prize, it is almost entirely borrowed from the reports of the decisions of the High Court of Admiralty, since the time of Sir William Scott. For this, the author himself offers a very striking reason. “If,” says he, “in the subsequent part of the work, he (the author) has confined himself somewhat more exclusively to the doctrines and opinions of that celebrated man whose unrivalled decisions on maritime law, like the judgments and opinions of the Roman jurists in the civil law, will constitute an essential part of maritime law for centuries to come,—it was because the continental jurisprudence is barren of examples in those branches of the subject.” As the commercial law of Great Britain received much of its perfection through the decisions of Lord Mansfield, so the maritime laws of war of that country have attained their maturity, through the decisions of Sir William Scott.
In an address to the Suffolk County Bar Association in 1821 Justice Story said:
How few have read with becoming reverence and zeal the decisions of that splendid jurist, the ornament, I will not say of his own age or country, but of all ages and all countries; the intrepid supporter equally of neutral and belligerent rights; the pure and spotless magistrate of nations, who has administered the dictates of universal jurisprudence with so much dignity and discretion in the Prize and Instance Courts of England? Need I pronounce the name of Sir William Scott?Footnote 112
Only Story's loathing of slavery in general at this time of his life, and of the international slave trade in particular, could temper his admiration for Sir William Scott. In December 1821 he was confronted by a case raising issues that had been decided by Sir William Scott in the third of his judgments printed separately, The Louis, Forest, Master, decided on December 15, 1817, and published by Dodson as a pamphlet before the end of that year. The Louis concerned the capture by a British naval vessel of a French ship off the coast of Africa waiting to take on twelve slaves; eight British sailors were killed in The Louis's resistance to a British inspection. After The Louis was condemned by the British Vice-Admiralty Court in Sierra Leone, the French claimants appealed to the High Court of Admiralty in London. Sir William Scott held that the vessel had been improperly seized, concluding that the right of search did not exist in peacetime; that the slave trade, although outlawed in England and elsewhere, did not violate the law of nations; that there was no evidence that the slave trade violated French law and, that even if it had, that would not have justified a British seizure of the vessel.
In the La Jeune Eugenie, Justice Story was confronted with a case with nearly identical facts involving a United States naval vessel's capture of a French slave ship. Story struggled with The Louis. First, there was his obligatory homage to Scott:
I will not yield to any person in reverence for the profound learning and talents of the accomplished judge, by whom that decision was pronounced. His judgments have been justly the admiration of Europe and America; and will be read for instruction, for beauty of illustration, for felicity of style, and for unambitious, but lofty principles, long after their illustrious author is gathered to the fathers, who have enlightened and improved mankind…
But for Justice Story, Scott's judgment in The Louis departed from the preclusive position to the contrary taken earlier in the opinion of Sir William Grant, Master of the Rolls, sitting as a judge of the Court of the Lords Commissioner of Appeals in Prize Cases in the Amedie, and also by Scott himself in the earlier case of the The Fortuna. Footnote 113 After pointing out ways that The Louis could arguably be distinguished from these earlier precedents, Story nevertheless had to admit:
…I find myself utterly at a loss to comprehend, how the fundamental doctrine of the case of The Amedie, and the other cases already cited, that the slave trade, abstractly speaking, cannot have a legal existence, and that it is repugnant to the principles of universal law, and the law of nations, can consist with the unequivocal denial of the same doctrine in the case of Le Louis. I find myself driven, therefore, to the conclusion, that the last case is meant silently to abandon and repudiate the whole doctrine, on which the former cases rest.
Justice Story chose to follow “the dictates of my deliberate judgment,” not Scott's.Footnote 114 He rejected the arguments of the French claimants but did accept the president's suggestion that the vessel be held for disposition by the French government.Footnote 115
Seven years later Story could write in The North American Review:
But a still more striking example is Lord Stowell, (better known in this country as Sir William Scott,) the present venerable Judge of the High Court of Admiralty, of whom it may be justly said, in the language of Cicero, that he is jurisperitorum eloquentissimus. This great man has presided in the Court of Admiralty since 1798; and during this period he has commanded the admiration of all Europe by the learning, acuteness and finished elegance of his judgments… With the exception of the doctrines respecting colonial trade, in which it is but common justice to admit, that he either acted upon public Orders in Council, which he was bound to obey, or upon the Rule of 1756, which his government had previously chosen to consider as part of its prize code, the differences between his decisions upon prize law, and those promulgated by the Supreme Court of the United States, are so few, as to be almost evanescent… .[A]s a maritime judge, deciding, in what is called the Instance Court, the great principles of jurisprudence … [h]is superiority is most signal … One scarcely knows which most to admire, the simplicity of his principles, the classical beauty of his diction, the calm and dispassionate spirit of his inquiries, his critical but candid estimate of evidence, his strong love of equity, his deep indignation of fraud, chastened by habitual moderation, or that pervading common sense, which looks into, and feels, and acts upon the business of life with a discriminating, but indulgent eye content to administer practical good without ostentation, and wasting nothing on speculations, whose origin is enthusiasm and whose end is uncertainty or mischief.Footnote 116
In 1826, James Kent published Volume I of his Commentaries on American Law. The first third of the book begins with nine chapters devoted to the law of nations, and in all but the first two chapters, dealing with its origin and application in time of peace, Scott's judgments play a prominent role; these later chapters address issues arising in wartime, and, particularly with respect to neutral nations and their trade, Kent relies on Scott's judgments in the absence of rare Supreme Court authority to the contrary. Importantly, Kent rewrote Chief Justice Marshall's cautious opinion in Thirty Hogsheads; he quoted the first two sentences excerpted previously, omitted the balance, and substituted his own words with a highly assimilative thrust that he labeled “the language of the Supreme Court.”: “The great value of a series of judicial decisions, in prize cases, and on other questions depending on the law of nations, is that they liquidate, and render certain and stable, the loose general principles of that law, and show their application, and how they are understood in the country where the tribunals are sitting. They are, therefore, deservedly received with very great respect, and as presumptive, though not conclusive, evidence of the law in a given case.”Footnote 117
Robinson's Admiralty Reports also continued to appear in decisions by Justice Brockholst Livingston and his successor, Justice Smith Thompson, sitting in the circuit courts for the Southern District of New York and the District of Connecticut in the 1820s.Footnote 118 Judge Conkling of the Northern District of New York cited to these reports extensively in his discussion of most substantive issues, and of a few procedural issues as well, in his comprehensive, two volume work on admiralty.Footnote 119
Samuel Rossiter Betts, United States district judge for the Southern District of New York from 1828 to 1868, cited Robinson's Admiralty Reports from the time he came onto the bench.Footnote 120 Judge Betts's greatest reliance on those reports, however, was when holding the Prize Court during the Civil War. The vast majority of his decisions, particularly those of any substance, contain one or more citations to Robinson's Admiralty Reports. Footnote 121 The most important cases decided by that Court, The Crenshaw and The Hiawatha, were consolidated with others for argument and decision by the Supreme Court in The Prize Cases, 67 U.S. 635 (1862). Counsel included the leaders of the New York bar at the time, William M. Evarts and Daniel Lord, Jr., and the United States district attorney for the District of Massachusetts, Richard Henry Dana, Jr. Each of them relied in their briefs on cases from Robinson's Admiralty Reports, and Justice Grier, writing for the majority, cited Scott (as Lord Stowell) by name. Id. at 668. In The Circassian, arising out of the blockade of New Orleans and its capture by Union forces in April 1862, both Chief Justice Chase's majority opinion and Justice Nelson's dissent relied on decisions in Robinson's Admiralty Reports. 69 U.S. 135 (1864). John Fabian Witt concludesFootnote 122 that in 1863, Seward and Gideon Welles found Scott's law of blockade not rigorous enough and successfully secured from Chief Justice Chase and the Supreme Court more expanded rights of seizure.Footnote 123
Well after the Civil War Scott's judgments retained their precedential value in the Supreme Court of the United States, citing several of Scott's early blockade decisions from the first volume of Robinson's Admiralty Reports, Chief Justice Fuller characterized him as a “great jurist.”Footnote 124 Only 20 years ago, in the litigation arising from the attempted sale and Government seizure of the ship's bell from the C.S.S. Alabama, it was Scott's judgment in The Rebeckah, 1 Rob. 227 (1799) that the Government pressed on the Third CircuitFootnote 125 as a governing precedent in favor of its position on the capture of the Alabama by the Kearsarge.
Conclusion
In her most recent writing on Sir William Scott's matrimonial jurisprudence, discussed previously, Rebecca Probert makes a case that his judgment in Dalrymple v. Dalrymple may have been influenced by the per curiam opinion, 2 years earlier, of the New York Supreme Court in Fenton v. Reed, 4 Johns. Rep. 52 (1809), which interpreted—or misinterpreted, from her perspective—the law of marriage contracts the same way Scott would 2 years later.Footnote 126 Certainly, after 1789, it was not unusual for American courts to adopt domestic rules of decision from contemporary judgments of British courts, and vice versa.
More recent examples abound. A number of American courts adopted the definition of obscenity in criminal cases from Regina v. Hicklin, (1868) L.R. 3 Q.B. 360.Footnote 127 In the famous “snail in the bottle case,” Donoghue v. Stevenson, in the House of Lords, [1932] A.C. 562, Lords Atkin and Macmillan relied upon the decision of former Associate Judge Benjamin Cardozo of the New York Court of Appeals in MacPherson v. Buick Motor Co. in rejecting the requirement of privity for recovery in negligence.Footnote 128 Recent scholarship demonstrates the immediate international influence of the treatises of Blackstone, Story, and Kent.Footnote 129
All these examples involve treating foreign judgments or treatises with persuasive value domestically. A separate jurisprudential category involves conflicts of laws cases, in which domestic courts were and are obliged to construe, and sometimes to apply, foreign precedents or treatises, although not to adopt them as the domestic law of the forum.
Sir William Scott's decisions in prize cases fall in yet a third category. As he himself expressed it:
…[I] consider myself as stationed here, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nations holds out, without distinction, to independent states, some happening to be neutral and some to be belligerent. The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of nations: but the law itself has no locality… .If, therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as the universal law upon the question… .”Footnote 130
Because, given his own definition, American courts had as much right and were as competent to construe the universal law of nations as Sir William Scott, the acceptance by American courts of the entire canon of his judgments, in times of strife and sometimes of war between the two countries and often in cases arising out of that strife and warfare, justified James Kent's encomium, quoted at the outset of this article.Footnote 131
Subtler still, but at least as arresting is the reconciliation, near the end of Sir William Scott's judicial career and after the War of 1812, of the differences that separated the views of the principal communicators in this portion of the “transnational public sphere,” Justice Story and Sir William Scott, on the two issues on which they had earlier disagreed: first, the British application of their Rule of 1756 and, second, slavery.
As discussed, the Rule of 1756 curtailed—to a lesser or greater extent, depending upon its varying application from time to time—trade by neutral ships between a colony and its mother country when the latter was at war with Great Britain, particularly when that country was France. Having taken a very liberal position on this issue in The Maria, Paulsen, Master in 1799, Sir William Scott was pulled up short by the much stricter decision of the Lords Commissioners of Appeals in Prize cases in The Essex in the late spring of 1805, a few months before Nelson's victory at the battle of Trafalgar. Thereafter, Scott “loyally applied the principles of the superior court, beginning with the case of the Enoch in July. But he obviously believed that it was unsound law and risky politics. In August he urged the Foreign Secretary to turn his attention to the problem and perhaps modify the principle.”Footnote 132
Nearly 25 years later, on September 25, 1829, John Quincy Adams, in his first year out of office, ended a long letter to Joseph Story with the challenge: “Is not Lord Stowell the most responsible man of our age for the last war with Great Britain?” and reminded Story of the “Salem Memorial, 1806”, condemning the rule of war of 1756, which Story himself had drafted. Story replied on October 2:
The application of the rule of 1756 is that in which he bore most powerfully upon American Commerce and American rights. But even here, if you assume that rule to be correct as a part of National Law, his application of the rule, though in some cases harsh, was generally with its reach. I for one, have never admitted the legal existence of the rule…. But after all, I am bound to do this justice to Lord Stowell, and to state that he had British authority for the rule, and that he did not create it. It is one of those questions upon which enlightened men may honestly differ.Footnote 133
What Story might have added, had he known of it, is that in negotiating his Treaty of Amity, Commerce and Navigation of 1794 with Great Britain, John Jay, acting on instructions, had “yielded to the operation of the Rule of 1756 though not accepting it in principle, a concession which was to strengthen tremendously the operation of that arbitrary dictum.”Footnote 134
The second issue was slavery. Story's opinion in the La Jeune Eugenie, refusing to follow Sir William Scott's in The Louis, was not his only outspoken denunciation of slavery in the early 1820s.Footnote 135 Story sent his opinion in the La Jeune Eugenie to Scott in January 1822, soon after it was rendered, “aware how slender claims it has upon your notice, considering that it differs from that which you entertain, and have expounded with so much force of reasoning and illustration.”Footnote 136 If Scott answered, his reply has not been printed.
Six years later, under date of January 9, 1828, Scott wrote to Story, forwarding his opinion in The Slave Grace. Story received the letter, but did not reply, and Scott sent him a second letter, dated May 17, 1828.Footnote 137 To the second letter Justice Story replied, assuring Scott that he would have decided the case the same way, adding that “[i]t appears to me that the decision is impregnable” and that: “I have occasion to know that your judgment has been extensively read in America, (where questions of this nature are not of infrequent discussion), and I have never heard any other opinion but that of approbation of it expressed among the profession of the Law.”Footnote 138
Scott's second letter to Story suggests that there was nothing novel in Justice Daniel's enthusiastic conclusion in Dred Scott that Scott had overruled Lord Mansfield's judgment in Somerset, for which Scott provided the following remarkable explanation: “I have ventured to differ sometimes in the interpretation of the law as given by our Judges, and have incurred censure on that account, as straying from an authority that ought to bind me. I have rather thought, that in the jurisdiction of the Admiralty, I am to look at the real justice of the case, and not to what has been pronounced in a somewhat similar case by the decision of a single Judge of the Common Law.” The “real justice of the case”, from Scott's point of view, appears to have been this: “I am a friend of abolition generally, but I wish it to be effected with justice to individuals. Our Parliaments have long recognized it and have not only invited, but actually compelled our colonists to adopt it, and how, under such circumstances, it is to be broken up at the sole expense of the colonist, I cannot see consistent with either common reason or common justice…”
Six years after La Jeune Eugenie, Justice Story's enthusiasm for The Slave Grace opinion may have been based on more than his admiration for Sir William Scott. Having had his effort to extirpate the international slave trade rejected by Chief Justice Marshall in an opinion for the Supreme Court in The Antelope expressly adopting Sir William Scott's views in The Louis, Story was starting down a different path, not wholly dissimilar to Sir William Scott's in its abstract choice of priorities, which would lead to Story's profoundly ambiguous opinion for the Supreme Court in Prigg v. Pennsylvania in 1842.Footnote 139 There, Story implemented his goal to strengthen the authority of the national government by federalizing the rendition of slaves and excluding the States from any obligatory participation in that process. In the short term, Prigg made the Fugitive Slave Act of 1793 ineffectual, leading Story's son to christen the decision “a triumph of freedom” and to attribute his father's purpose to that claimed result. However, in the longer term, that ineffectuality led to the passage of the Fugitive Slave Act of 1850, which deployed a framework of federal commissioners whom Story himself had proposed in private correspondence with Senator John Berrien of Georgia both shortly before and shortly after the decision in Prigg, and, which, therefore, intensified the controversy about slavery, bringing on the Civil War.Footnote 140
