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Book Review
David R. Owen and Michael C. Tolley, Courts of Admiralty
in Colonial America: The Maryland Experience, 1634-1776, Durham: Carolina
Academic Press, 1995. Pp. xxxiii + 421. $45.00 (ISBN 0-89089-856-1).
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These authors, like many authors, felt the need to explain the purpose
of their book. They write that they are "interested in more than
the origins and institutional development of the courts of admiralty.
We are concerned also with how these courts worked, who used them
and with what results ... we have compared the Maryland experience
with developments in other colonies and have integrated legal history
with the general history of colonial America" (p. xvii). This is
an ambitious agenda and, not surprisingly, some parts of it are
more fully met than others. The last part seems beyond their, or
probably anyone's, reach to fully accomplish. But there is much
that is impressive and useful in this work and much to admire. Among
the attractive features of this book I would list these: The authors
track Maryland maritime cases heard in both vice admiralty courts
and common law courts, so the reader understands the full dimension
of maritime legal activities and the comparative frequency and the
disposition of cases in both types of jurisdiction. The comparison
of outcomes provides significant information. The authors find that
common law courts (with juries) were as likely as admiralty courts
(without juries) to condemn vessels and cargoes. Prize cases and
piracy cases are included in the accounting. Lawyers who were involved
in maritime causes in either admiralty or common law courts are
listed; judges who heard maritime cases in both jurisdictions are
also identified. |
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In addition, there is
a clear explanation of procedures followed in the vice admiralty
courts (181 and following) and in the appeal routes available (190
and following). This is especially important because of the confusion
and ambiguities often at work in determining the authority to establish
the vice admiralty courts, their jurisdiction, and the appeal mechanisms
available from them. The reader might also note the explanation
of the significance of the administrative responsibilities, especially
that belonging to the governor and the council, in matters concerning
the development of trade and commerce in province.
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The genealogy of the courts and the
demonstrations of their legitimacy, if any, are both important and
tedious. The factual recounting will be useful for reference; no
analysis is provided for pages on end so the reader may stop reading
with attention until he finds some interesting material. But when
the authors synthesize secondary writings on the courts, the customs
service, and British agencies, interest in what they have to report
returns and the value of their labors is apparent again. |
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There are some places in
the text where more careful attention might have smoothed out the
illogic of the sentences. For example, on page 99, the authors assert
that "Upon his death in 1734 Calvert was identified as 'Judge of
the Admiralty.' If there had been only one case, it is doubtful
his eulogizer would have identified him with that office." Well,
maybe so. Again, on page 134, "Between 1699 and 1763 there were
very few Navigation Acts cases in either the Provincial Court or
the Court of Vice Admiralty. This may be due to the lack of records."
Unlikely!
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The reader would have been helped
if inclusive dates had been provided for the otherwise very useful
tables showing courts, causes, and outcomes. Sometimes the nearby
text explains clearly what the time span of the tables is; in other
places textual indicators are nowhere near the tables, leaving the
reader searching around for that information. |
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In addition to
the text the volume contains eight appendixes (153 pages) plus a
bibliographical essay and an index. Appendix A is very valuable.
It is composed of case summaries of all the disputes of a maritime
nature heard and presumably determined (the records are far from
complete) in Maryland's colonial courts from 1636 to 1773. They
total well over one hundred cases. Some of the more important of
them also are discussed in the text of the book. These summaries
display keys to the evidence upon which the arguments of the book
rest. They form a wonderful reference for all future work on the
topic. |
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My final comment has to do
with the failure of the authors to see special significance in the
first admiralty courts that used juries, created after the collapse
of the British government, 1774-1775. We know that the states and
Congress attempted to establish courts using jury trials and that
those attempts were not successful. We know that within a half decade
the attempts were dismantled and the American admiralty courts returned
juryless trials. The authors know about these courts (see 219-21)
but seem to dismiss their significance. They jump in to their basic
narrative from 1776 (the condemnation of the loss of jury trial
included in the list of grievances in the Declaration of Independence)
to 1787/1789—U.S. Constitution/Judiciary Act (with
their stipulations concerning federal admiralty jurisdiction). The
authors claim surprise that admiralty jurisdiction was bestowed
on new courts despite its nonjury feature hated during colonial
years. So the revolutionaries' complaints are called "suspect" and
"exaggerated." The authors discover continuity from juryless colonial
courts to juryless federal courts. The problem is, not that there
was not continuity eventually, but that the significance of the
whole experiment in good-faith response to the pre-Revolution unhappiness
with juryless trials is discounted or ignored. Does it matter? I
think it does. Was there sincerity in the colonists' complaints
about juryless trials. I think there was. I know that reasonable
scholars may differ in their interpretation of historical evidence.
In this case I disagree with Owen and Tolley. Thirty-five years
ago in a book that also related some of the history of the courts
of vice admiralty I indicated my belief that those early attempts
to construct admiralty courts with juries were significant indicators
of the sincerity of the colonists' rhetoric of grievance. I still
believe that sincerity is part of the history of the era.
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Carl Ubbelohde
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Case Western Reserve University
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