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The Seldom Told Tale of the United States of America’s First Federal Court By Ira Cohen, Esq., B.A., J.D., LL.M.

Federal Court History Final Exam (sample question) Prize Courts Question #100 Prize courts were a commonplace judicial institution What was the first federal court in the United in many war-waging nations during the 17th through States of America? 19th centuries. Cases arising under the jurisdiction of a. U.S. Supreme Court such courts would emerge during times of naval mili- b. U.S. District Court, Southern District of New tary action both in the Americas and in Europe. York Prize court jurisdiction in England and Wales is ex- c. U .S. District Court, District of Massachusetts ercised by the Admiralty Court. That specialized court Ira Cohen, Esq., B.A., J.D., d. U.S. District Court, Eastern District of Pennsyl- is a part of the Queen’s Bench Division of the High LL.M., is a partner of Henkel & Cohen, P.A., of Miami. He is vania Court of Justice; in turn, appeals are heard by the a member of the Florida and e. None of the above Judicial Committee of the Privy Council.5 New York Bars and has been Answer Key: In France, it is the Prize Council (Conseil des practicing intellectual prop- The correct answer is “e. None of the above” Prises) that possesses jurisdiction to determine the erty law for almost 40 years. Explanatory Note: legal issue relating to a prize case. Thus, the coun- Cohen served as judicial law clerk to Hon. Harold J. Raby, As a matter of objective fact, the first federal court cil’s jurisdiction has been relegated to times of war. U.S. magistrate judge for the in the United States of America1 was the Court of Appellate jurisdiction in cases of this type is wielded Southern District of New York Appeals in Cases of Capture, which was established in by the president of the French Republic, who, in such (1982-1985). He is a proud 1780.2 By way of comparison, the U.S. Supreme Court matters, acts as a judge. member of the FBA and a Life and the subordinate federal courts were created, To better comprehend the instant subject matter, a Fellow of the Foundation of the FBA. Cohen also is depu- almost a decade after the founding of this appellate short primer as to the peculiar legal jargon of this area ty chair and a board member court, by the Judiciary Act of 1789.3 of law should prove constructive. Set forth below is a of the Intellectual Property list of discrete terms that generally are associated with Law Section of the FBA. Introduction American prize court practice. History is truly the witness of times past, the Admiralty Court: A court exercising jurisdiction light of truth, the life of memory, the teacher of over all maritime contracts, torts, injuries, or offenses. life, the messenger of antiquity; whose voice, but Federal district courts have jurisdiction over admiralty the orator’s, can entrust her to immortality?4 and maritime matters.6 Articles of Confederation: The name of the instru- Marcus Tullius Cicero (106 B.C.–43 B.C.), the ment embodying the compact made between the 13 great Roman philosopher, statesman, orator, advocate, original states of the Union, operative from March lawyer, and political theorist, understood the function 1, 1781, to March 4, 1789, before the adoption of the and importance of history. In our own time, our juris- present Constitution.7 prudential philosophy, and the institutions where we Capture: An act of catching or controlling by force, dispense justice, are framed by the legislators, judges, threats, or strategy. In international law, the taking and legal landmark events that have preceded us. or wresting of property from one of two belligerents Traditions and technical jargon (including law Lat- by the other. Also, a taking of property by a belliger- in) all have their proper place in our old and venerable ent from an offending neutral. Capture, in technical profession. Paramount above all, however, ought to language, is a taking by military power; a seizure is a be a respect for, and adherence to, historical truth. As taking by civil authority.8 Cicero explained: “To be ignorant of what occurred [Court of] Last Resort: A court from which there before you were born is to remain always a child. For is no further appeal is called the “court of last resort.9 what is the worth of human life, unless it is woven into Letter of marque and reprisal: An authorization the life of our ancestors by the records of history?” formerly granted in time of war by a government to

• THE FEDERAL LAWYER • November/December 2020 6 the owner of a private vessel to capture enemy vessels and goods on ton asked the president of Congress, , Esq., on several the high seas. The signatory powers to the Declaration of Paris in occasions to take action. Sadly, it took years as Congress flailed and 1856 agreed to stop issuing such authorizations.10 fumbled about, only to set up various committees within Congress to Libel: Pleadings. Formerly, the initiatory pleading in an admiralty exercise such jurisdiction. Eventually, though, the Court of Appeals action, corresponding to the declaration, bill, or complaint. Since in Cases of Capture was established by a Resolution of the Continen- 1966, the Federal Rules of Civil Procedure and Supplemental Admi- tal Congress on January 15, 1780,18 making it the first federal court in ralty Rules have governed admiralty actions and as such, admiralty the United States of America. actions are now commenced by complaint.11 As a technical matter, even though express power to establish Libelant: Formerly, the complainant or party who files a libel the Court was granted to Congress by the Articles of Confederation in an ecclesiastical or admiralty case, corresponding to the plaintiff (in 1777), the Articles had not yet been fully ratified by all 13 of the in actions at law.12 The party corresponding to the defendant in an original states when Congress established the Court on January 15, action at law was called a “libelee.” 1780. Indeed, they were not ratified until March 1, 1781. However, Marque (Law of Marque): A sort of law of reprisal, which the U.S. Supreme Court subsequently ruled, in a 1795 case, that Con- entitles him who has received any wrong from another and cannot gress nonetheless had possessed the inherent power, back in 1780, to get ordinary justice to take the shipping or goods of the wrongdoer, establish the Court.19 where he can find them within his own bounds or precincts, in satis- faction of the wrong.13 A Short-Lived But Important Appellate Tribunal Pirate: A privateersman who accepted a letter of marque and As it turned out, the Court operated for a relatively finite period of reprisal from both belligerents of a conflict was regarded as a pirate. time, from 1780 through its final cases in 1787 after the War for Inde- Privateer: A vessel owned, equipped, and armed by one or more pendence had concluded. The Court ceased to exist following ratifi- private individuals, and duly commissioned by a belligerent power to cation of the U.S. Constitution in 1789,20 as that majestic document go on cruises and make war upon the enemy, usually by preying on transferred federal judicial power to the newly created U.S. Supreme his commerce.14 Court and such other inferior (to wit, lower) federal courts as Prize: A vessel or cargo, belonging to one of two belligerents, ap- Congress might establish. prehended or forcibly captured at sea by a war-vessel or privateer of Notwithstanding the foregoing, the Court served some important the other belligerent and claimed as enemy’s property, and therefore functions. liable to appropriation and condemnation under the laws of war.15 Prize Courts: Courts having jurisdiction to adjudicate upon “Usually seeking out merchant ships, privateers tirelessly captures made at sea in time of war, and to condemn the captured attacked the British during the War, motivat- property as prize if lawfully subject to that sentence.16 (In the United ed by a powerful cocktail of greed and patriotism. Because States, federal district courts now have jurisdiction in cases of it was not always clear whether a captured ship was British, prize.)17 American, or neutral, and because more than one privateer Sentence: The judgment issued by an admiralty court or prize court. sometimes participated in a capture, disputes over the spoils arose early and often.”21 The Federal Court of Appeals in Cases of Capture During the prosecution of the (1775–1783), Additionally, a number of scholars have pointed out that this the United States issued letters of marque and reprisal authorizing court influenced aspects of Article III of the Constitution, promoting private vessels, known as privateers, to capture enemy ships and a better understanding of the need for a national judiciary, emphasiz- cargo as prizes. During the war, state admiralty courts presided over ing the need for a separation of powers in the branches of govern- and adjudicated prize cases. ment, promoting Congress’s war powers, and pointing the way to a The United States, like many other countries, issued commissions single Supreme Court legally to rule over the entire land.22 to privateers to capture their adversaries’ merchant vessels after hostilities had broken out. Then, the captured vessels were “brought” Prize Court Appellate Jurisdiction before the various admiralty courts, which, in turn, considered and As previously noted, in fall 1775, Congress had flexed its legislative decided legal issues such as the capture’s legitimacy and whether the muscle and asserted federal appellate jurisdiction over prize case vessel was to be condemned and/or the ship and its cargo to be sold appeals. Regrettably, internal scheduling difficulties ensued. The first off, as well as the question of the distribution of the prize funds to the appeal, The Case of the Schooner Thistle, was received by Congress in privateer as and for compensation. August 1776. Congress attempted to hear such appellate matters by dele- Back in November 1775, several of the American colonies, includ- gating jurisdiction over them to various special committees and, later, to ing Massachusetts, established prize courts to exercise original juris- a standing committee (but, as to the latter, not until January 1777). diction over all cases (libels) of captures (prizes) consisting of enemy About three years later, on Jan. 15, 1780, Congress established the ships and cargo. Indeed, the establishment of such prize courts had Court of Appeals in Cases of Capture to exercise this jurisdiction and been recommended by the federal (Continental) Congress on Nov. sit as a court of last resort. On May 24 of that year, Congress trans- 25, 1775. Over time, however, Congress sought to monitor, and over- ferred all remaining prize case appeals to the court and specified that see, the state prize courts’ work-product and results. all future appeals were to be filed directly with the court. Approxi- The idea for a special federal court to handle appeals from mately six years down the road, on June 27, 1786, the court’s jurisdic- the states’ prize courts had sprung from the mind of then Gener- tion was again expanded to include rehearings and new trials where al George Washington. During the American Revolution, Washing- justice so required.23

November/December 2020 • THE FEDERAL LAWYER • 7 The Court of Appeals “Rides the Circuit” in London. He returned to these shores to read law in Maryland in The court’s inaugural session was mandated to, and did, occur in the 1761. A delegate to both Continental Congresses, he was a signer of City of Brotherly Love, Philadelphia.24 Then, as a gypsy soul, the the Declaration of Independence. Later, he was made governor of court could be likened to a traveling tribunal. Maryland (1782-1785) and, thereafter, was appointed as the first U.S. Later sessions were conducted at other times and locations district judge for the District of Maryland (1789-1799).32 During the around the young country. Nonetheless, territorial boundary limits period from February 1780 through November 1782, he was a judge were imposed as to where the court could sit. Cases could not be on the Court of Appeals in Cases of Capture.33 heard farther East than Hartford, Conn., or farther south than Wil- Hon. Titus Hosmer (1736-1780): Born and educated in Connecti- liamsburg, Va.25 As the years passed, other court sessions were held cut, Judge Hosmer read law and entered the bar after graduating from in Richmond, Va., and New York.26 Yale. Both a state assemblyman and later a state senator, he also was a delegate to the (1778). Elected to The Court’s Procedural Rules the Court of Appeals in Cases of Capture on Jan. 22, 1780, he accepted An appeal to the Court of Appeals in Cases of Capture was com- the office on April 12, 1780.34 He died in office on Aug. 4, 1780. menced by an aggrieved party, as a threshold step, demanding an ap- Hon. George Wythe (1726-1806): Judge Whythe, a Virginia peal in the trial court within five days after the issuance of a definitive jurist and Founding Father, is notable for not serving on this court. Sentence. Next, within 40 days of the demand, as described above, Whythe, a judge for much of his professional life, was a classical the party had to lodge the appeal and tender an adequate security to scholar and is recognized as the first American law professor (he the court.27 taught, among other historical giants, Thomas Jefferson and John Jury trials were neither available nor authorized.28 However, Marshall). He was elected by Congress on Jan. 22, 1780, to the Court trial by jury was authorized in some of the state prize (trial level) of Appeals but, disappointingly, he declined to serve. courts, where Congress initially recommended it, only to later rec- Hon. Cyrus Griffin (1748-1810): Born in the Virginia Colony, ommend against it. British America, Judge Griffin’s legal education was obtained at In order to pay for the expense of this federal prize case appellate the University of Edinburgh in Scotland and at the Middle Temple court, a half percent of the value of a prize had to be paid into the in London. Over the years, he wore many legal and political hats, Continental Treasury. including being a member of the House of Delegates of Virginia35 and the president of the Ninth Congress of the Confederation (1787- The Jurists on the Bench of the Appellate Court 1788). Later in life, he was appointed as the first U.S. district judge The Court of Appeals in Cases of Capture was designed to be com- for the District of Virginia (1789-1810).36 Back in 1780, however, posed of a panel of three judges. Under the rules, however, in order Congress elected him to be a judge of the Court of Appeals in Cases to sit on and hear a case, a quorum of only two judges was required.29 of Capture.37 He served on the court until 1787. At first, annual salaries were fixed for the judges and their expens- Hon. George Read (1733-1798): Judge Read was born in es reimbursed. TheCongressional Journal indicates an advance salary Delaware and, indeed, later became a U.S. senator from Delaware of $12,000 was paid per annum for each judge toward a $25,000 (1789-1793), not to mention the chief justice of the state’s Supreme salary and expenses compensation package.30 As time wore on, the Court (1793-1798). Read is just one of two American statesmen allowed compensation was changed to fixed daily rates, which in- who had signed all three of this country’s most important papers of cluded time spent “riding the circuit” in order to conduct the court’s state—namely, the Petition to the King of the Congress (1774), the calendar business. Declaration of Independence (1776), and the Constitution of the By the end of December 1784, the court had disposed of all cases United States (1789). Judge Read was elected on Dec. 5, 1782, by before it and lay dormant. That hiatus did not last for long. Hence- Congress to the Court of Appeals in Cases of Capture.38 forth, it was reconvened as necessary. Hon. John Lowell (1743-1802): Judge Lowell was born in the Mas- The judicial personnel for this appellate court were elected by sachusetts Bay Province, British America. After graduating from Har- Congress. The court was allowed to select its own register (clerk vard in 1760, he read law in 1763. He honorably served as a Major during of court). As a formal matter, the judges serving on this court were the American Revolutionary War. After the war, he became a wealthy mandated to swear an oath of office, administered by the president of private attorney, mainly representing privateers’ claims before the Admi- Congress, as follows: ralty Court. Among many other public offices he held, he later served as the first U.S. district judge for the District of Massachusetts (1789-1801), “You do swear [or affirm] that you will well, faithfully and and after that, he was elevated to sit on the U.S. Circuit Court of Appeals impartially execute the office of one of the judges of the Court for the First Circuit (1801-1802).39 Judge Lowell was elected by Congress of Appeals in Cases of Capture, according to the best of your to the Court of Appeals in Cases of Prize on the same day as Judge Read, skill and judgment. So help you God.”31 Dec. 5, 1782; he accepted the office on Feb. 12, 1783.40

Only five men ever served on this appellate court. Those gentlemen Representative Cases Decided by the Court of the bar, hand-picked for this court by Congress, were some of the le- Congressional Committees handled matters of capture between gal luminaries and prime politically pedigreed professionals of the age. September of 1776 and March 1780 (covering about 64 prize cases). The short biographical sketches set forth below should afford one with The records of only around 50 cases have been excavated among the some idea of the sagacity and stature of these federal jurists. surviving records of this early court. Those matters that were lodged Hon. William Paca (1740-1799): Though born in British with and decided by the court include about a dozen cases that had America, Judge Paca was educated in England at the Inner Temple been transferred from various congressional committees.

• THE FEDERAL LAWYER • November/December 2020 8 The earliest decision handed down by the Court of Appeals, as written opinions. Second, the Judgment of the Court frequently is to which the written record is clear, was the case of Rathburn v. The referred to as the “Sentence.” Third, notwithstanding the foregoing, Ship Mary, an appeal from the Judgment of the Maritime Court for the words “Decree” and/or “Judgment” also sometimes are utilized. the Southern District of Massachusetts Bay. The lower court’s deci- Fourth, the decisions make it clear that this court allowed appellate sion was affirmed on June 23, 1780. rehearings upon presentation of new evidence. Fifth, new trials were Ostensibly, the Court of Appeals in Cases of Capture typically allowed in the interest of justice. Sixth, most of the decisions refer to eschewed handing down formal, written opinions. Nevertheless, a two-judge panel; only a few mention a triumvirate of judges. there exist a handful of opinions of the court that were published by Custody of the records from this appellate court initially were the Supreme Court’s reporter,41 as illustrated in the following cases: transferred over to the U.S. Supreme Court.42 Today, the National The Resolution, 2 U.S. (2 Dall.) *1 (Ct. App. in Cases of Capture, Archives is the custodian of the court’s records.43 1781). This was a consolidated appeal from the Admiralty Court from Pennsylvania, decided during the August Session of 1781. The The Court of Appeals Is No Longer in Session decision takes up legal issues such as prize, neutral property, recap- In the aftermath of the U.S. Constitution (most particularly Article ture of a vessel and its cargo, illegal contract, capitulation, and allies. III thereof), the death knell sounded for the Court of Appeals in The Resolution, 2 U.S. (2 Dall.) *19 (Ct. App. in Cases of Capture, Cases of Capture. Stated otherwise, the new government signaled 1781). This was a rehearing of the above-cited appeal, decided during this court’s sudden obsolescence. the December Session of 1781. The legal issues covered in this deci- As it turned out, the last official session of the court was held on sion are rehearing; evidence, in case of prize; and neutrality. May 16, 1787. That event took place in Philadelphia, where the court The Erstern, 2 U.S. (2 Dall.) *34 (Ct. App. in Cases of Capture, had first convened upon its founding. 1782). This was an appeal from the Admiralty Court from Massachu- Under the Constitution and the pertinent statute(s), jurisdiction setts Bay, decided during the January Session of 1782. This decision in prize cases was shifted to the new federal district courts. See Title dealt with the legal issues of prize and neutral property. 28, U.S. Code Section 1333, which today provides, in haec verba, as The Gloucester, 2 U.S. (2 Dall.) *36 (Ct. App. in Cases of Capture, follows: 1782). This was an appeal from the Admiralty Court from Pennsylva- nia, reported in January 1872. This decision dealt with the legal issues “The district courts shall have original jurisdiction, exclusive of prize money; distribution of the prize property was ruled to be of the courts of the States, of: made in accordance with, and in proportion to, the number, interest, and merits of the captors. (1) Any civil case of admiralty or maritime jurisdiction, saving The Squirrel, 2 Dall. *40 (Ct. App. in Cases of Capture, 1783). This to suitors in all cases all other remedies to which they are was an appeal from an Admiralty Court decided during the May Ses- otherwise entitled. sion of 1783. This decision dealt with the legal issues of sale of prize property in perishing condition; the schooner, her tackle, apparel, (2) Any prize brought into the United States and all pro- and furniture were ordered to be sold at auction for the use of the ceedings for the condemnation of property taken as prize” ultimately prevailing party. (emphasis added) The Speedwell, 2 Dall. *40 (Ct. App. in Cases of Capture, 1784). This was an appeal from the Admiralty Court from Rhode Island. This deci- The federal courts continued to adjudicate prize cases long after sion dealt with a capture that occurred after the operation of prelimi- 1789. One of the most famous was ruled on in 1863, during the nary articles of peace; thus, the ship’s condemnation was reversed. American Civil War. In The Prize Cases, a matter involving several Luke v. Hulbert, 2 Dall. *41 (Ct. App. in Cases of Capture, 1787). seized Confederate ships, the U.S. Supreme Court upheld the consti- This appeal was decided during the May Session of 1787. The appeal tutionality of the Northern forces’ blockade of the Southern ports, as was not sustained (i.e., the petition was dismissed) in the court’s dis- ordered by President Abraham Lincoln, prior to any Congressional cretion, under authority of a congressional resolution of June 1786, Declaration of War on the Confederacy.44 Those cases, however fasci- as the judges were of the opinion that the interests of “justice and nating, are beyond the purview of this particular piece of writing. right” did not require the appeal to proceed. The Experiment v. The Chester, 2 Dall. *41 (Ct. App. in Cases of Conclusion Capture, 1787). This was an appellate rehearing during the May In the 19th century, as Lord Mansfield explained in reference to Session of 1787. It was an appeal from the Admiralty Court in South the Court leet,45 “[t]hese Courts were very properly adapted to the Carolina. Despite some irregularities in the proceedings, the court customs, manners, genius and policy of a people upon their first set- would not sustain the appeal because it did not appear that substan- tlement but, like all other human jurisdictions, vary in the course of tial justice would be prevented. In view of the fact that the captors of progress and time, as the Government and manners of a people take the vessel had engaged in some irregularities, however, and had thus a different turn, and fall under different circumstances.”46 “given color to the petition,” the court refused to award any costs to A century or so later, Sir Winston Churchill, a staunch proponent the respondents. of the life-long study of history, astutely observed: “History with its From a reading of this relatively small batch of hand-crafted opin- flickering lamp stumbles along the trail of the past trying to recon- ions of the Court of Appeals in Cases of Capture, a few interesting struct its success to revive the echoes and kindle with pale gleams factoids may be distilled. the passion of former days.”47 Nevertheless, with the advancement of First, the judges of the court are routinely referred to as “Com- time, of necessity, comes change; our courts and our judicial system missioners” or “Presiding Commissioners,” and not “Judges,” in the must, and do, evolve.

November/December 2020 • THE FEDERAL LAWYER • 9 As for us modern day attorneys and counsellors at law, we must 18 Journals of the Continental Congress, supra note 2, at 61. diligently and scrupulously persist in the practice and tradition of the 19 See Penhallow v. Doane’s Adm’rs, 3 U.S. 54 (1795). Under study of history. To best do so, we would do well to echo Cicero’s time- current U.S. law, pursuant to 10 U.S.C. §§ 7651-7681, U.S. district less and sage advice: “Read at every wait; read at all hours; read within courts exercise exclusive jurisdiction over prize cases. leisure; read in times of labor; read as one goes in; read as one goest 20 Id. (holding that the existence of the Court of Appeals in Cases of out. The task of the educated mind is simply put: read to lead.”48  Capture terminated with the old government of the United States of America). For Further Reading: 21 Deidre Mask & Paul MacMahon, The Revolutionary War Prize Cases J.C. Bancroft Davis, “Federal Courts Prior to the Adoption of the and the Origins of Diversity Jurisdiction, 63 Buff. L. Rev. 477, 480 Constitution,” in 113 U.S. app. xix-xlix. (2015). George Washington, Letters, in 3 The Writings of George Washington, 22 See, e.g., Robert J. Steamer, The Legal and Political Genesis of the 1775-1776 (Worthington Chauncey Ford, New York and London, G. Supreme Court, 77 Pol. Sci. Q. 546, 561 n.21 (1962). P. Putnam's Sons 1889). 23 30 Journals of the Continental Congress 1774-1789, June 27, 1786, at 355-56 (Worthington Chauncey Ford ed., Library of Endnotes Congress 1905). 1 “The name of this Confederation shall be the United States of 24 Journals of the Continental Congress, supra note 2, at 61. America.” William Safire, No Uncertain Terms: More 25 Id. Writing From the Popular “On Language” Column in the 26 Journals of the Continental Congress, supra note 23; see New York Times Magazine 38 (Simon & Schuster 2004) (quoting also 24 Journals of the Continental Congress 1774-1789, second draft of the Articles of Confederation, June 17, 1776). Jan. 29, 1783, at 98 (Worthington Chauncey Ford ed., Library of 216 Journals of the Continental Congress 1774-1789, Jan. 15, Congress 1905). 1780, at 61-64 (Worthington Chauncey Ford ed., Library of Congress 27 17 Journals of the Continental Congress 1774–1789, 1905). May 24, 1780, at 459 (Worthington Chauncey Ford ed., Library of 3 The Judiciary Act of 1789, ch. 20, I Stat. 73, adopted by the first Congress 1905). U.S. Congress on September 24, 1789. Article III, Section 1 of the 28 Journals of the Continental Congress, supra note 2, at 61. Constitution prescribed that the “judicial power of the United States, 29 Id. shall be vested in one Supreme Court, and such inferior Courts” as 30 Id. Congress saw fit to establish. It made no specific provisions for either 31 Journals of the Continental Congress, supra note 27, at the composition or procedures of any of the court organs, leaving such 458. matters for Congress to determine. 32 See Federal Judicial Center, Biographical Directory of 4 Historia vero testis temporum, lux veritatis, vita memoriae, magistra Article III Federal Judges, https://www.fjc.gov/history/judges/ vitae, nuntia vetustatis, qua voce alia nisi oratoris immortalitati paca-william (last visited Nov. 12, 2020). commendatur? Cicero, De Oratore, Bk. II, section 36 33 Journals of the Continental Congress, supra note 2, at 79. 5 See Prize Courts Act 1894, 57 & 58 Vict. (UK); Senior Courts Act 34 Id. 1981, c. 54, §§ 20(1)(d), 27, and 62(2) (UK). 35 Virginia was the largest of the 13 original colonies and, later, states. 6 Admiralty Court, Black’s Law Dictionary 43 (Special Deluxe 5th In 1776, Virginia extended its claims far westward to the Mississippi ed. 1979). River, as well as north to the southern boundary of the Hudson Bay 7 Articles of Confederation, Black’s Law Dictionary 102 (Special Company, Canada. Deluxe 5th ed. 1979). 36 See Federal Judicial Center, Biographical Directory of 8 Capture, Black’s Law Dictionary 192 (Special Deluxe 5th ed. Article III Federal Judges, https://www.fjc.gov/history/judges/ 1979). A “captor,” in international law, is one who takes a prize at sea. griffin-cyrus (last visited Nov. 12, 2020). 9 Court of Last Resort, Black’s Law Dictionary 794 (Special 37 16 Journals of the Continental Congress 1774–1789, Jan. Deluxe 5th ed. 1979). 22, 1780, at 61-64 (Worthington Chauncey Ford ed., Library of 10 Letter of marque and reprisal, Black’s Law Dictionary 814 Congress 1905). (Special Deluxe 5th ed. 1979). See also Edgar Stanton Maclay, A 38 23 Journals of the Continental Congress 1774–1789, History of American Privateers 7 (1899). Dec. 5, 1782, at 765 (Worthington Chauncey Ford ed., Library of 11 Libel, Black’s Law Dictionary 824 (Special Deluxe 5th ed. 1979). Congress 1905). 12 Libelant, Black’s Law Dictionary 825 (Special Deluxe 5th ed. 39 FederalJudicial Center, Biographical Directory of 1979). Article III Federal Judges, https://www.fjc.gov/history/judges/ 13 Marque (Law of Marque), Black’s Law Dictionary 876 (Special lowell-john-0 (last visited Nov. 12, 2020). Deluxe 5th ed. 1979). 40 Journals of the Continental Congress, supra note 38, at 14 Privateer, Black’s Law Dictionary 1076 (Special Deluxe 5th 765. ed. 1979) (A privateersman who accepted a Letter of marque and 41 The first and second Supreme Court Reporters (Dallas and Cranch) reprisal from both belligerents was regarded as a “pirate”). acted in unofficial capacities. The first Reporter, Alexander J. Dallas, 15 Prize, Black’s Law Dictionary 1080 (Special Deluxe 5th ed. 1979). Esq., handled the task for the first decade, from 1790-1800. He edited 16 Prize Courts, Black’s Law Dictionary 1080 (Special Deluxe 5th Volumes 1-4 (aka “1-4 Dallas”). ed. 1979). 42 Second Militia Act of 1792, ch. 36, 1 Stat. 275, 279 (transferring the 17 See 28 U.S.C. 1333. continued on page 19

• THE FEDERAL LAWYER • November/December 2020 10 At Sidebar continued from page 10 custody of the records from the Court of Appeals in Cases of Capture The full name of the case was:The Brig Amy Warwick; The Schooner to the U.S. Supreme Court). Crenshaw; The Barque Hiawatha; and the Schooner Brillante. 43 The Revolutionary War Prize Cases: A Record of 45 A historical court of the barons (to wit, a manorial court) in the Court of Appeals in Cases of Capture, 1776-1787, England, Ireland, and Wales (late 13th to late 20th century). microformed on M162 (Nat’l Archives). On 15 rolls of microfilm 46 Colebrooke v. Elliott (1765) 3 Burr. Part IV., at 1863. publication are reproduced the records of prize cases heard on appeal 47 Sir Winston Churchill, Speech to the House of Commons in tribute from Colonial and state courts by committees of the Continental to Neville Chamberlain (Nov. 12, 1940). Congress (1776-80) and by the Court of Appeals in Cases of Capture 4820 Best Marcus Tullius Cicero Quotes, Magazine 365 ( July 6, 2016), (1780-86). https://magazine365.wordpress.com/2016/07/06/cicero-quotes-20- 44 67 U.S. (2 Black) 635, 17 L. Ed. 459, 1862 U.S. LEXIS 282 (1863). best-marcus-tullius-cicero-quotes/.

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