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Incorporation of the Law of Nations During the American Revolution—The Case of the San Antonio

Published online by Cambridge University Press:  27 February 2017

Henry J. Bourguignon
Henry J. Bourguignon*
Affiliation:
University of Toledo Law School.
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Extract

In an article published in this Journal in 1932, Professor Edwin Dickinson pointed out that the Supreme Court, in the first thirty years of its existence, dealt with 82 cases which raised questions of international law. The Court and counsel before it repeatedly cited the familiar writers on the law of nations: Grotius, Pufendorf, Bynkershoek, Burlamaqui, Rutherforth, and Vattel. As Dickinson pointed out, “It is an ancient doctrine of the Anglo-American common law that the law of nations is incorporated in and in some sense forms part of the national law.” Largely through decisions based on the principles expressed by the classical writers, the law of nations was early incorporated as part of the law of the United States.

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American Journal of International Law , Volume 71 , Issue 2 , April 1977 , pp. 270 - 295
Copyright
Copyright © The American Society of International Law 1977

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References

1 Dickinson, , Changing Concepts and the Doctrine of Incorporation, 26 AJIL 239, 259 (1932)Google Scholar. More recently Judge Edward Dumbauld has discussed the reliance on these same law–of–nations authorities by various American leaders during the Revolutionary War and during the first Washington administration. Dumbauld, , Independence under International Law, 70 id. 425 (1976)Google Scholar. Even earlier use of some of these same writers has been noted by Julius, Goebel Jr., in The Courts and the Law in Colonial New York, reprinted in Essays in The History of Early American Law 275 (Flaherty, D. H. ed. 1969)Google Scholar.

2 2 Journals of the Continental Congress 189 (Ford, W. C. ed., 34 vols., 1904–1937)Google Scholar (hereinafter cited as Ford, JCC).

3 1 Clark, W. B., Naval Documents of the American Revolution 1255 (1964)Google Scholar; 2 id. 26, 48, 97, 99, 117, 122, 126, 154, 180, 189, 203, 228, 236, 270, 285, 299, 330, 378, 382, 394, 425, 480–83, 529, 654, 662, 962.

4 Clark, W. B., George Washington’s Navy 3–64 (1960)Google Scholar.

5 3 Ford, JCC 277–78; John Hancock to Nicholas Cooke, Oct. 5, 1775, 2 Clark, supra note 3, at 312.

6 Washington to the President of Congress, Nov. 8 and 11, 1775. 4 The Writings of George Washington from the Original Manuscript Sources, 1745–1799, at 73, 81–82 (Fitzpatrick, J. C. ed., 39 vols., 1931–1944)Google Scholar. See also Washington to John Augustine Washington, Oct. 13, 1775, Washington to Richard Henry Lee, Nov. 8, 1775 and Washington to Joseph Reed, Nov. 20, 1775, id. 25–28, 75, 103–07.

7 3 Ford, JCC 371–75. The committee consisted of: George Wythe, Edward Rutledge, John Adams, William Livingston, Benjamin Franklin, James Wilson, and Thomas Johnson. Id. 357–58. See also Ubbelohde, C., The Vice–Admiralty Courts and the American Revolution passim (1960)Google Scholar and Lovejoy, , Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, 1769–1776, 16 William and Mary Q. 460–82 (3d. ser. 1959)Google Scholar.

8 4 Ford, JCC 229–32, 257–59; 5 id. 605–06.

9 4 id. 247–48, 251–54; 11 id. 486. Cf. British commission and instructions in Beawes, W., Lex Mercatoria Rediviva or the Merchant’s Directory 219–23 (1752)Google Scholar.

10 3 Ford, JCC 407; 19 id. 315; 21 id. 1156, 1172; 22 id. 10–11.

For a full, detailed discussion of the statutory and constitutional provisions for prize courts by the various states, see Bourguignon, H. J., The First Federal Court: The Federal Appellate Prize Court of the American Revolution, 1775–1787 Ch. I, text accompanying notes 37–87 (to be published, 1977)Google Scholar.

5 Acts and Resolves, Public and Private, of the Province of Massachusetts Bay 806–08 (21 vols., 1869–1922); Rhode Island Session Laws, 2d. sess., July 1780, at 9–14 (18 vols., n.d.); 9 The Statutes at Large of Pennsylvania 277–83 (Mitchell, J. T. & Flanders, H. eds., 18 vols., 1896–1915)Google Scholar; New Jersey Session Laws, 3d sess., 1st sitting, 1778, at 18–24; 9 The Statutes at Large, Being A Collection of All The Laws of Virginia 102–05, 130–32, 202–06 (Hening, W. W. ed., 13 vols., 1809–1823)Google Scholar; 24 The State Records of North Carolina 119–23 (Clark, W. ed., 26 vols., 1886–1914)Google Scholar.

13 5 Acts and Resolves of Massachusetts, supra note 12, at 474–77; 4 Laws of New Hampshire Including Public and Private Acts and Resolves 25–32 (Batchellor, A. S. et al. eds., 10 vols., 1904–1922)Google Scholar.

14 5 Acts and Resolves of Massachusetts, supra note 12, at 1077–78; 4 Laws of New Hampshire, supra note 13, at 238.

15 9 Statutes of Pennsylvania, supra note 12, at 277–83. The Pennsylvania statute provided that “the finding of the said jury shall establish the facts without re–examination or appeal.”

16 10 id. 97–106.

17 10 Statutes of Virginia, supra note 12, at 98–102.

18 3 The Federal and State Constitutions 1700 (Thorpe, F. C. ed., 7 vols., 1909)Google Scholar. Four cases were appealed to Congress, apparently without any dispute as to this limitation in the state constitution.

19 24 Records of North Carolina , supra note 12, at 119–23.

20 Rhode Island Session Laws, Nov. sess. 1780, supra note 12, at 18–19.

21 5 Ford, JCC 631, 647, 702, 741, 835; 6 id. 884–85, 931–32, 964, 985–86; 7 id. 13, 30.

22 Elizabeth (Wentworth v. Hart), Oct. 14, 1776, #2 Records of the Court of Appeals in Cases of Capture (National Archives), (hereinafter cited as RCA). See also 5 Ford, JCC 835; 6 id. 870–73; and Richmond (Craig v. Folger), Jan. 17, 1777, RCA, #7. The citations to cases from the Records of the Court of Appeals in Cases of Capture do not follow the captions given in the National Archives list of cases which appears in the pamphlet accompanying Microcopy 162, since this list is not uniform nor accurate in the mode of citation. This pamphlet merely follows, with minor modifications, the list of cases compiled by J. C. Bancroft Davis as it appears in the appendix to 131 U.S. Reports. The citations here will include the following information, when available in the records: the name of the vessel; the names of the two parties first mentioned in the litigation, with the name of the appellant given first; the date of the final action on appeal; and the number of the file in the National Archives RCA collection.

23 Thistle (Roberts v. McAroy) Sept. 19, 1776, RCA, #1; Vulcan (Ingram v. Joyne), Jan. 24, 1777, RCA, #5.

24 7 Ford, JCC 75, 336–37, 348.

25 RCA passim.

26 7 Ford, JCC 75, 172, 336–37; 9 id. 800, 936, 1015; 10 id. 177; 11 id. 724; 12 id. 947, 1064; 13 id. 297; 14 id. 896, 953, 1004; 15 id. 1171, 1360; 16 id. 17.

27 Biographical Dictionary of the American Congress, 1774–1961 passim (1961).

Active (Olmsted v. Houston), Dec. 15, 1778, RCA, #39; The Case of The Sloop Active (1779); The Whole Proceedings in the Case of Olmsted and Others Versus Rittenhouse’s Executrices (Peters, R. ed. 1809)Google Scholar; Journal of Gideon Olmsted, Frederick Law Olmsted Collection (Library of Congress, Manuscript Division).

29 Active, RCA #39.

30 11 Pennsylvania, Colonial Records 657, 697 (Hazard, S. ed., 16 vols., 1838–1853)Google Scholar; 4 Letters of Members of the Continental Congress 43, 45–46 (Burnett, E. C. ed., 8 vols., 1921–1936)Google Scholar; 7 Pennsylvania Archives, 1st ser. 170, 172 (Hazard, S. ed., 11 vols., 1852–1855)Google Scholar; 13 Ford, JCC 86–92; Papers of the Continental Congress (National Archives) (hereinafter cited as PCC), Item 29, at 351, 355.

31 PCC, Item 29, at 357–59; 13 Ford, JCC 134–37, 183, 252–53, 270–71, 281–85.

32 Ross et al. Executors of Ross v. Rittenhouse, 2 Dallas 160 (1792); 1 Yeates 443 (1795 sic); Olmsted v. The Active, 18 Fed. Cases, #10,503a (1803); United States v. Peters, 5 Cranch 115 (1809); United States v. Bright, 24 Fed. Cases, #14,647 (1809).

33 13 Ford, JCC 86–92.

34 Id. 137.

35 May 22, 1779, PCC, Item 69, II at 65, 69; 14 Ford, JCC 626–27.

36 14 Ford, JCC 1002.

37 15 id. 1220–23, 1349–50, 1356, 1360; 16 id. 13–14.

38 Id. 61–64.

39 Congress first chose George Wythe of Virginia, William Paca of Maryland, and Titus Hosmer of Connecticut. 16 Ford, JCC 64, 79. When George Wythe declined the appointment, Congress elected Cyrus Griffin, also of Virginia. Id. 322, 397, 411. Hosmer accepted but probably never heard a case since he was sick when appointed and died the following summer. Hosmer to Samuel Huntington, April 12, 1780, PCC, Item 78, XII at 17; 17 Ford, JCC 779. The Court functioned for a year and a half with only two judges, Paca and Griffin, in commission. When Paca resigned in 1782, Congress elected George Read of Delaware and John Lowell of Massachusetts. 23 Ford, JCC 758, 765, 797, and 862.

40 Alden, J. R., The South in the Revolution 1763–1789, at 276–78 (1957)Google Scholar; Tebeau, C. W., A History of Florida 85–86 (1971)Google Scholar.

41 St Antonio (Debadie v. Russell), May 28, 1783, RCA #95. The passport and a copy of the capitulation are in the file of the San Antonio. For some reason, although there is frequent reference to Article fourteen of the capitulation as the controlling provision, in one copy of the capitulation itself it is clearly Article twelve.

42 Passport, May 4, 1782 and Charter Party, April 5, 1782, San Antonio, RCA #95.

43 See the depositions and interrogatories of Dumont, Debadie, Brossard, Pickles, Rollinson, Martinez, Foglio, Fauchier, Bethel, Pollack, and Baker, San Antonio, RCA #95.

44 Interrogatories of Debadie, Foglio, and Fauchier, San Antonio, RCA #95.

45 Libel, signed by W[illia]m Tudor, [attorney] for the libellants, in file of San Antonio, RCA #95. Although libels are uniformly used in American prize suits, both in the vice–admiralty courts before the Revolution and in the state admiralty courts during the Revolution, libels were not filed in prize cases in the English High Court of Admiralty. Libels, which were appropriate in the nonprize, civil maritime cases (called instance cases), were employed in America in prize suits due apparently to the failure of the American bench and bar to distinguish between the prize and the instance sides of admiralty. See, Bourguignon, supra note 11, Ch. IV and VI.

46 Plea to jurisdiction and claim in file of San Antonio, RCA #95.

47 Rendon’s petition, in file of San Antonio, RCA #95.

48 Deposition of Pickles, interrogatories of Baker, Fauchier, Rollinson, Santo Martinez, Foglio, Brossard, Casenwick, and Martini, in file of San Antonio, RCA #95. It is important to observe that much of the testimony allowed in the trial court would have been rejected under English prize practice. In the High Court of Admiralty, the rule was strictly enforced that “The evidence to acquit or condemn . . . must, in the first instance, come merely from the ship taken, viz. the papers on board, and the examination on oath of the master and other principal officers.” Report of the Law Officers of the Crown, 1753 in 2 Documents Relating to Law and Custom of the Sea 350 (Marsden, R. G. ed. 1926)Google Scholar. The American practice to the contrary, i.e., admitting in evidence the testimony of anyone remotely connected with the facts of the case or who could give testimony as to the maritime customs involved, is discussed in Bourguignon, supra note 11, Ch. IV.

49 Depositions of Baker and Pickles, in file of San Antonio, RCA #95.

50 Interrogatories of Debadie, Rollinson, Santo Martinez, Foglio, and Brossard, in file of San Antonio, RCA #95.

51 Deposition of Waldo, in file of San Antonio, RCA #95.

52 Interrogatory of Wilkins, in file of San Antonio, RCA #95.

53 Verdict, in file of San Antonio, RCA #95. There is no evidence in the file as it exists today which would support the libellants’ contention, accepted by the jury, that the San Antonio carried contraband or was carrying supplies to the British.

54 The verdict and notice of appeal are in the file of San Antonio, RCA #95.

55 In the letter of Elias Boudinot, the President of Congress, to John Hancock, the Governor of Massachusetts, forwarding Luzerne’s letter with its enclosures on the San Antonio affair, Boudinot included a postscript that news of the preliminary peace articles had just arrived. Letter of April 8, 1783, in file of San Antonio, RCA #95. For a discussion of Luzerne’s influence with Congress, see Stinchcombe, W. C., The American Revolution and the French Alliance 134, 153–69, 183–99 (1969)Google Scholar.

It is interesting to compare the business–like manner in which Congress responded to Luzerne in 1783 with the extended and agonized involvement of Congress in the case of the Portuguese snow Our Lady of Mount Carmel and St. Anthony in 1778 and 1779. 7 Ford JCC 318; 10 id. 227; 11 id. 487; 13 id. 56, 73, 78, 158; 14 id. 803, 838–42, 856–60. See also PCC Item 44 at 1–185.

56 Miro’s letter of December 5, 1782, Argote’s letter of March 25, 1783 written in Philadelphia, and the depositions from New Orleans, dated in December 1782, are all in the file of San Antonio, RCA #95.

57 The resolve of Congress, dated April 4, 1783 and the letter of Boudinot to Hancock are in the file of San Antonio, RCA #95.

58 21 Ford, JCC 1158. The reliance by the congressional appellate court on the law of nations is discussed in Bourguignon, supra note 11, Chs. V and VII.

59 Lord Mansfield in Lindo v. Rodney, 2 Douglas, Reports, 613, 616; 99 English Reports, 385, 388; Report of the Law Officers of the Crown, supra note 48, at 350, 353, 369.

60 See, for instance, Brierly, J. L., The Law of Nations 14–40 (6th ed. 1963)Google Scholar.

61 Stipulation among the papers from the Massachusetts maritime court, in file of San Antonio, RCA #95.

62 See, e.g., the file of Hope (Lopez v. Brooks), April 10, 1779, RCA #28; Lark (Jennings v. Taylor), Jan. 28, 1780, RCA #36; George (Jennings v. Griffin), Dec. 23, 1780, RCA #40; Hannah (Hepburn v. Ellis), Aug. 4, 1781, RCA #74.

63 Depositions of Bethel and Douglass, in file of San Antonio, RCA #95.

64 Depositions of Pollock, Vincent, Bousigues, Pickles, and Captain Dumont, the commander of the San Antonio when captured, in file of San Antonio, RCA #95. Two of these depositions were translated from the French, and the record includes the French originals.

65 Lusanna (Doane v. Penhallow), Sept. 17, 1783, RCA #30. This case is discussed in 2 Legal Papers of John Adams 356–72 (Wroth, L. K. & Zobel, B. eds. 1965)Google Scholar and in Bourguignon, supra note 11, Chs. VII and VIII.

66 From May 13 to June 14, 1783, the Court of Appeals determined ten cases, and did not sit again until September when it decided another nine cases. RCA passim.

67 Bourguignon, supra note 11, Ch. IV.

68 Polly and Nancy (Norris v. Porter), Aug. 14, 1778, RCA #25; Mary (Smith v. Hinson), May 6, 1784, RCA #73; Chester, (Dubbeldemuts v. Atkinson), May 3, 1787, 2 Dall, RCA #41. For the petition in the case of the Chester, written by Hamilton, see 2 The Law Practice of Alexander Hamilton, Documents and Commentary 892–903 (Goebel, J. Jr. ed. 1969)Google Scholar.

69 The appellant, Debadie, the named party for the interests of Argote, was represented by Perez Morton, William Lewis, Benjamin Hichborn, and another counsel whose name is illegible, perhaps Joseph Reed. Morton and Hichborn of Massachusetts had represented the Spanish claimants and Rendon, the chargé d’affaires, at the trial. Lewis and Reed were from Philadelphia where the appeal was heard. The appellees, the captors, were represented by James Wilson of Philadelphia and another counsel, “Loel,” perhaps John Lowell of Massachusetts, who was then one of the three judges of the Court of Appeals. This would explain why the case was decided by the other two judges, Cyrus Griffin of Virginia and George Read of Delaware.

The names of counsel are included on the notes of the oral argument, San Antonio, RCA #95. Since no pleadings or briefs were filed with the Court of Appeals, it is frequently impossible to determine whether the parties were represented before the Court of Appeals by trial counsel or by special counsel to argue the appeal. If it is possible to speak of a special bar for the appellate prize court, William Lewis and James Wilson would certainly be among its leaders. Lewis is known to have represented parties in at least nineteen appeals. Wilson served as judge on the Committee on Appeals, the predecessor of the Court of Appeals, in at least ten cases, and as counsel in six other appeals. RCA passim.

70 In the case of the San Antonio there never appears to have been a question whether the cargo, as British property, was liable to lawful capture even if the vessel was Spanish property not liable to seizure. The ordinary rule of the law of nations, unless modified by treaty, was that the property of an enemy on board a neutral ship could be seized and condemned to the captor as lawful prize. (Vattel, Fenwick tr., infra note 73, at 273). After the Armed Neutrality of 1780, however, Congress issued new instructions for privateers which, following the principles of the Armed Neutrality, prohibited the seizure of enemy property found on board a neutral vessel. 18 Ford, JCC 864–66, 905–06, 1008, 1097–98; Morris, R. B., The Peacemakers 164–67 (1966)Google Scholar. This issue, apparently, was never raised in this case.

That vessels engaged in maritime commerce in time of war carried double or false papers and destroyed incriminating papers when captured was a constant problem. It was used as one of the presumptions which often served as a basis of condemnation in English practice. Perjured testimony and forged documents must have been so common that the British Lords Commissioners for Prize Appeals, as well as the admiralty judges, developed a system of presumptions, common sense rules, to help determine whether a vessel should be condemned or acquitted. 2 Browne, A., A. Compendious View of The Civil Law 451–52 (1802)Google Scholar. Although Browne wrote a generation after the American Revolution (the first edition came out in 1798), the prize procedures had not changed significantly in the intervening years. See also 1 Neutrality—Its History, Economics and Law 224–46 (Jessup, P. C ed. 1935)Google Scholar.

72 The argument of counsel is reconstructed from the notes of oral argument, in file of San Antonio, RCA #95.

73 Vattel, , Le Droit Des Gens, Ou Principes De La Loi Naturelle, Appliqués À La Conduite Et Aux Affaires Des Nations Et Des Souverains (1758)Google Scholar. The references in the “notes” are undoubtedly to the English translation published in London in 1759–1760, which is here cited in subsequent footnotes. To make these references more accessible, parallel citations to the pages of the 1916 translation of Vattel by C. G. Fenwick are also given. The Fenwick translation (hereinafter Fenwick tr.) is part of the series, The Classics of International Law (Scott, J. B. ed., reprinted 1964)Google Scholar.

74 1 Vattel, I, Ch. XXII, §§ 275, 276, Ch. XXIII, §§ 290, 291, 292, 294; Fenwick tr., 104–05, 109–10.

75 2 Vattel, III, Ch. V, §§ 71, 74, Ch. VII, §§ 131, 132; Fenwick, tr., 259, 277. The quotation is from the translation of 1760.

76 2 Vattel, III, Ch. VII, §§ 120, 129; Fenwick tr., 274, 276.

77 2 Vattel, III, Ch. VI, §§ 78, 79, 81, 82, 83; Fenwick, tr., 261–62.

78 2 Vattel, III, Ch. XIV, §§ 204, 205, 206, 208; Fenwick, tr., 313–14. The quotation is from the translation of 1760.

79 1 Vattel, Preliminaries, §§ 15, 16, at 5; Fenwick tr., 6.

80 1 Vattel, II, Ch. VI, § 71; Fenwick, tr., 136. The quotation is from the translation of 1760.

81 The page reference in the notes of the argument makes it clear that Lewis referred to the 1763 translation of Burlamaqui. Burlamaqui, J. J., 2 The Principles of Natural and Politic Law 340 (Nugent tr. 1763)Google Scholar.

82 2 Vattel, III, Ch. XVII, § 266; Fenwick tr., 331.

83 The notes for Wilson’s argument are unclear in places; it is not easy to follow the flow of his argument. The reconstruction of the argument, therefore, is at times quite speculative.

Although no citation is given for this proposition, Wilson perhaps was relying on Lord Mansfield’s opinion in Mostyn v. Fabrigas, 1 Cowper 161, 172; 98 English Reports 1921, 1928 (1774). The first edition of Cowper had just been published in 1783. Mansfield had stated:

In every plea to the jurisdiction, you must state another jurisdiction; therefore, if an action is brought here for a matter arising in Wales, to bar the remedy sought in this Court, you must shew the jurisdiction of the Court of Wales.

This is a clear example of the way common law rules were often introduced into those prize proceedings.

85 Rendon’s claim, file of San Antonio, RCA #95.

86 2 Rutherforth, T., Institutes of Natural Law 488 (1754)Google Scholar. Rutherforth is speaking here of the acquisition of power or jurisdiction over a territory by occupation.

87 Morris, supra note 70, at 219–26, 232–40, 243, 306, 424. James Madison had prepared a report, adopted by Congress, asserting the right to the east bank of the Mississippi for most of the length of the river, and the right of innocent passage through the mouth of the river, both banks of which would be under Spanish control. Madison relied on arguments from Vattel to establish the rights and usages of nations. When John Jay, at the Spanish court, read the report, he informed Madison that Spain had different ideas of international law than Congress; Vattel’s Law of Nations was prohibited there, Jay told Madison. Id. 239. See also Stinchcombe, supra note 55, at 33, 36. A long letter from John Jay, in Paris, to Robert R. Livingston, the American Secretary of Foreign Affairs, dated November 17, 1782, eight days before the capture of the San Antonio, discussed the problem of America’s assertion of a right of navigation of the Mississippi. 6 The Revolutionary Diplomatic Correspondence of the United States 11–49 (Wharton, F. ed., 1889)Google Scholar.

88 Reproduced in Appendix to Bemis, S. F., The Diplomacy of the American Revolution 263 (reprint, 1957)Google Scholar.

89 Morris, supra note 70, at 423–24; Marks, F. W., Independence on Trial 21–33, 105–08 (1973)Google Scholar.

90 2 Rutherforth, supra note 86, at 596–97. Rutherforth, in this same passage, also stated that the state to which the captors belong had exclusive jurisdiction to try the capture. But he explicitly limited this to cases where the capture took place on the high seas. It is not clear that Wilson mentioned this question.

91 Id. 479–80.

There were, by 1783, seven English translations of Pufendorf. It is not clear which English edition Wilson was relying on.

93 1 Vattel, I, Ch. XXIII, §283. Fenwick tr., 106–07. The notes of the argument incorrectly give the citation as “Vat. Lib: 1, Sec: 183.” Clearly Section 283 was meant.

This point that Wilson makes does not seem to fit into the flow of his argument, but the notes clearly indicate that it was made at this part of the argument. Undoubtedly it was developed in a way that is not now apparent.

95 2 Rutherforth, supra note 86, at 493.

96 2 Grotius, De Jure Belli Ac Pack Libhi Tres 190–91, 196–97 (Kelsey, F. W. tr., 1925)Google Scholar. Unfortunately, the citation to Grotius in the notes of the argument could not be traced any more precisely than to Book II, Chapter II, which includes a discussion of many questions relating to occupation of seas and rivers. Furthermore, the next chapter of Grotius contains many points which would not be helpful for Wilson’s argument, especially that rivers can be acquired by occupation and that a part of the sea (such as the mouth of the Mississippi) which is enclosed by shores may be possessed by a nation. Id. 208–12.

97 There are cites here to Vattel, Pufendorf, and Grotius, which are either illegible or so inaccurate that they cannot be traced.

98 1 Vattel, I, Ch. XXII, §266; Fenwick tr.,.102.

99 2 Vattel, III, Ch. XIII, §197, Ch. XIV, §212; Fenwick tr., 308, 315; 2 Rutherforth, supra note 86, at 567–68.

100 Beawes, supra note 9, at 242 (3rd ed. 1771). Miro’s letter is in the file of San Antonio, RCA #95.

101 The notes indicate that Wilson also argued that making use of a flag of truce is an acknowledgment of the property’s being British. The logic of this argument is not apparent.

102 Wilson also apparently answered the Spanish claimants’ argument that the San Antonio was within Spanish jurisdiction because it was in the custody of Spanish officers. The notes merely mention that something was said on this subject, but give no indication of how Wilson argued.

103 Deposition of Bousigues and Dumont, in file of San Antonio, RCA #95.

104 Decree signed by Cyrus Griffin and George Read, in file of San Antonio, RCA #95.

105 24 Ford, JCC 386–87.

106 PCC, Item 42, VII, at 165–68.

107 Case file #104090, Court Files Suffolk; Suffolk Minute Book, February 1786 Term, Supreme Judicial Court of Massachusetts, Office of the Clerk. The action brought by Dumont was in trespass on the case.

108 Attachment, in file of San Antonio, RCA #95. The controlling language of the writ states:

These are therefore in the Name and by the Authority of the United States of America to authorize and command you the s[ai]d __________ __________who for this purpose are hereby specially nominated and appointed to attach and apprehend them the s[ai]d Leonard Jarvis Joseph Russell and Isaac Sears [owners and agents of the Patty] by their Persons respectively so that you forthwith have their and each of their Bodies before us to answer us of the Trespass and Contempt aforesaid.

The copy of the writ in the RCA file leaves two blanks where the name of the person who is to execute the writ belonged. In the Papers of the Continental Congress, however, is an exact copy of the writ with the blanks filled in with the name of Thomas Ressel Esq. of Boston, Merchant. PCC, Item 78, XIX, at 453.

109 PCC, Item 78, XIX, at 443. 446.

110 25 Ford, JCC 546–48.

111 British prize decisions had not yet been reported and so were not accessible to American lawyers. But as soon as they were reported some fifteen years after the case of the San Antonio, American lawyers began relying on them in their arguments before the Supreme Court. Reports of Cases Argued and Determined in the High Court of Admiralty (Robinson, C. ed., 6 vols., 1798–1808)Google Scholar. As early as 1800 American attorneys were citing Robinson’s Admiralty Reports. The Eliza, 4 Dallas 36 (1800); The Amelia, 1 Cranch 1 (1801); The Charming Betsy, 2 Cranch 64 (1804); The Blaireau, 2 Cranch 240 (1804).

112 The Court of Appeals in 1781, in one of its few full opinions, quoted from Vattel, whom it called “a celebrated writer on the laws of Nations.” Resolution (Miller v. Ingersoll) and (O’Brien v. Miller), 2 Dallas 1, 15, Aug. 15, 1781, RCA. It is possible to document the reliance of the Court of Appeals, as well as of state admiralty courts, on the authorities on the law of nations, in a number of other cases. See Bourguignon, supra note 11, Chs. V, VIII. For a nearly contemporary example of similar reliance on the authorities on the law of nations in a state common law court, see 1 Law Practice of Hamilton, supra note 68, at 336–419.

113 For example, in the notes of the oral argument discussed above, James Wilson cited Rutherforth, Grotius, Vattel, and Pufendorf on the question “To whom do navigable Rivers belong.” A thorough reading of these authors on the subject would have revealed some basic differences of opinion.

114 Bourcuicnont, supra note 11, Ch. VII.

115 In the case of the San Antonio, the jury in Massachusetts included at least two jurors who had the closest possible ties with privateering interests in the State. Mungo Mackey, one of the jurors, was part owner of a privateer which was involved in an appeal to the congressional appellate prize court, Brunette (Williams v. Mackey), Sept. 21, 1783, RCA #79. John Bradford Jr., another juror, was apparently the son of the John Bradford who had an interest in other privateers, and who acted as agent for the Navy in bringing prize suits. Charming Peggy (Keppele v. Glover), May 24, 1784, RCA #3; Nancy (Babcock v. Bradford,) Aug. 9, 1779, RCA #47; Viper (Brimmer v. Bradford), Nov. 8, 1779, RCA #54; LeVern (de Valnais v. Tucker), July 25, 1780, RCA #56; Sandwich Packet (Bradford v. Brimmer), Aug. 14, 1780, RCA #66; Mary (Trivett v. Bradford), June 23, 1780, RCA #67.