Admiralty Law and Neutrality Policy in the 1790s: An Example of Judicial, Legislative, and Executive Cooperation

Abstract

Admiralty Law and Neutrality Policy in the 1790s: An Example of Judicial, Legislative, and Executive Cooperation ELLIOTT ASHKENAZI The subject of admiralty law may have lost much of its luster over the years, but during the first decades of the nation’s existence this branch of the law provided a vehicle for establishing foreign policy principles that helped protect the new nation. The admiralty cases that reached the U.S. Supreme Court in the mid-1790s were important to administration policy in the realm of foreign affairs and to the Court’s own development as an independent arm of the national government.1 The outbreak of war among the European nations in 1793 provided the setting for these cases. In the naval battle between France and several European nations led by England, priva­ teering was rife in the West Indies and along the United States coasts.2 French privateers cap­ tured enemy or neutral merchant ships coming out of the islands and brought their prizes to United States ports for sale. They could not return to a French jurisdiction for condemnation proceedings because of the British naval blockades. Benjamin Moodie, the British vice-consul for North and South Carolina and Georgia after February 1794, tried to regain the British prizes for their original owners by beginning suits in admiralty in the United States district court in Charleston. The captured ships were not always British, and some suits began in Savannah rather than Charleston, but the Moodie cases stand out for their sheer number and for the dan­ gers presented to a neutral venue by confrontations between the main belligerents. Typically, the owner of a French vessel equipped it for war and received a commis­ sion from some French authority allowing it to make captures and disrupt British trade with the West Indies. In some cases the priva­ teer was a previously captured merchant ves­ sel converted to privateering. In others Ameri­ can owners sold ships to French nationals for the purpose of conversion. Once captured, a British prize would be accompanied into an American port or sailed in with a French prize master and a few crewmembers, with the in- 4 JOURNAL OF SUPREME COURT HISTORY tention of selling the prize and its cargo to the highest bidder for the benefit of the priva­ teer’s officers and crew.3 As the British prizes arrived, Moodie attached the more valuable of them in the district court sitting in admiralty, claiming that the ships and cargo still be­ longed to their original British owners. The attachments and the ensuing libels that served as the complaints in admiralty proceedings presented the court with the threshold ques­ tion of whether neutral American courts should, or even could, hear cases between belligerents when decisions had clear diplo­ matic consequences. Even if the cases were justiciable, was the capture itself invalid be­ cause the arming of a French privateer took place in American ports and violated some principle of American law or of the law of nations? Moodie asserted that judicial sanc­ tion of a capture amounted to an “unneutral” act. French owners and their captains sought protection behind articles of the 1778 Treaty of Amity & Commerce with the United States, which on the surface allowed French privateers to bring prize vessels into Ameri­ can ports without fear ofjudicial or executive seizure.4 Those of Moodie’s libels that reached the U.S. Supreme Court covered cases in which the captures had been made between Novem­ ber 1794 and September 1795 outside Ameri­ can territorial waters, but the outfitting or equipping of the privateers often occurred in 1793. At that time the administration had not even established what constituted the nation’s territorial waters, let alone what the laws of neutrality encompassed. In Moxon v. The Fanny, 19 Fed. Cas. 942 (D. Pa., 1793) (case no. 9895), a French privateer captured a Brit­ ish vessel five miles off the coast of Philadel­ phia. The Court knew of no government state­ ment on the extent of American waters or treaty on the subject. In circulars to the United States District Attorneys and to the various Foreign Ministers Thomas Jefferson ex­ plained that a policy was in...