The Maritime Origins of Judicial Review

To transpose Jane Austen, “it is a truth, universally acknowledged, that a new nation in possession of great resources, must be in want of a credible court.” Georgetown law professor Kevin Arlyck’s book, “The Nation at Sea: The Federal Courts and American Sovereignty, 1789-1825” (2025), engagingly recounts how federal courts used the flowing canvas of oceanic conflict during the nation’s first decades to gain legitimacy with the political branches and anchor the United States’ status as a co-equal sovereign in the eyes of European powers. Arlyck ends his account in 1825, as the United States turned inward and maritime captures along the western Atlantic Ocean subsided. These shifts, he contends, have obscured the critical role played by federal courts in early American foreign relations and nation-building.

Arlyck begins by describing consensus at the founding that the Supreme Court and any lower federal courts Congress chose to create would hear “all cases of admiralty and maritime Jurisdiction.” A key reason for this consensus was to avoid the diplomatic turbulence caused by the lack of credible centralized adjudication of American maritime captures during the War of Independence. With the Continental Navy vastly overmatched by the Royal Navy, the states and the Continental Congress issued letters of marque authorizing private persons to prey on British ships and cargoes as then permitted by the international laws of maritime war. These “privateers,” driven by patriotism and profit, often attacked and claimed as “prizes” (from the French word for “captured” or “seized”) ships and cargoes owned by foreign neutrals, not just British belligerents. But state admiralty courts, some with local juries, would adjudge the captures as lawful prizes anyway, in violation of international prize law, thus aggravating implicated neutral foreign governments. Federal courts with exclusive admiralty and maritime jurisdiction (including prize), in which judges would decide “both as to Law and Fact,” would eliminate state prize-law decisions that foreign nations often perceived as lawless.

 “The Nation at Sea” then proceeds chronologically in three parts. Part I (Chapters 2 and 3) explains the role the federal courts played during the Neutrality Controversy from 1793 to 1797. Revolutionary France declared war on Great Britain and the Dutch Republic in February 1793. French privateers, often crewed by Americans and operating out of American ports—Charleston, South Carolina, in particular—would seize British merchant vessels transiting to and from the West Indies. But despite popular support for France among Americans, President Washington’s “cabinet agreed on one basic principle—the United States should stay out of the war.” As the political branches “struggled to steer the ship of state between the Scylla of Britain and the Charybdis of France,” the federal courts served as useful safety valves for ventilating British grievances without entirely alienating France and its American supporters.

The balancing act of “the courts as compromise” (Chapter 3’s title) required some pragmatic and less than consistent rulings by the Supreme Court and the lower federal courts. Under the maritime law of nations, only the courts of a belligerent state could adjudicate title to ships and cargoes taken from the enemy. Moreover, Article 17 of the 1778 Treaty of Amity and Commerce with France explicitly forbade American “Searchers or other Officers” from making any “examination concerning the lawfulness of such Prizes” as French privateers had “taken from their Enemies.”

Those international-law obligations clashed with U.S. law prescribing neutrality, specifically the Neutrality Act of 1794, which fleshed out Washington’s 1793 Neutrality Proclamation. The act made it a crime for any American citizen or resident to accept a foreign privateering commission or to crew, arm, or provision a vessel with intent to privateer. But, as Arlyck points out, the “question of whether a privateer had been armed in the United States was highly fact-intensive, often necessitating documents and testimony from far-flung witnesses.” Consequently, when Benjamin Moodie, the litigious British consul for Georgia and the Carolinas, brought libels in rem (the admiralty-law term for actions asserting title to ships and cargoes) in the federal district court in Charleston, Judge Thomas Bee considered “a proven neutrality violation ... grounds for judicial restoration of a captured vessel.”

“French officials saw the British success in court as reflection of a fundamental defect in the American political character”—excessive legalism by pro-British “partisan” federal judges who “willfully ignored British dirty tricks.” The Washington administration deflected French outrage by asserting the constitutional independence of the federal courts from political branch influence. In Talbot v. Jensen (1795), the Supreme Court upheld the principle that federal courts could adjudicate violations of American neutrality. But, as privateering cases flooded its docket (21 cases in 1796-1797, or nearly 75 percent of its caseload), the Court diminished the scope of its review of district-court determinations, ruled that some repairs in American ports did not violate neutrality, and held that sale to French nationals of prizes taken in alleged violation of neutrality deprived federal courts of jurisdiction. In this way, the Supreme Court paid some obeisance to the 1778 treaty with France and general principles of prize jurisdiction.

The Jay Treaty with Britain, ratified in August 1795, banned the sale of prizes in American ports, closing that loophole. But Chief Justice Oliver Ellsworth went even further by issuing a ruling in chambers stopping the sale of a French prize brought into Charleson in April 1796 to enforce the Jay Treaty. Ellsworth’s order presupposed both that the treaty was self-executing and that an individual justice had the power to enjoin a French privateer (with no American involvement implicating a neutrality violation) from selling its prize, despite Article 17 of the 1778 treaty and the absence of any provision in the 1789 Judiciary Act giving an individual justice such power.

In Part II (Chapters 4 and 5), Arlyck’s canvas remains the high seas, but the United States now assumes the role of belligerent during the War of 1812 and its aftermath. Many Americans, Arlyck reminds us, saw the war as “a second War of Independence” from Britain and as self-defense of American sovereignty “from European hegemony more generally.”

Because the U.S. Navy was still relatively small, privateers were essential to successful prosecution of the American maritime war effort. But “Congress refused to give privateers the control they sought over the disposition of prizes.” Nor did Congress use its Article I power to “make Rules concerning Captures on Land and Water” to specify by statute which foreign ships and cargoes counted as enemy assets to be captured and which were neutral, what evidence could establish enemy status, how proceeds from the sale of lawful captures were to be divided, procedures and timelines for prize proceedings, and what damages might be awarded for injuries incurred during wrongful captures. Rather, Congress “largely left it to the judiciary to devise and apply the rules that would regulate the nation’s ‘private navy.’” And executive branch officials once again pleaded constitutional judicial independence when European ministers complained about American captures violating international laws of maritime war. The plea was, in Arlyck’s words, “downright disingenuous” because Secretary of State James Monroe “was perfectly comfortable with the idea that foreign governments might interfere with their own prize tribunals to protect the rights of other nations.”

In Chapter 5 (“A Belligerent Court”), Arlyck limns a key disagreement between Chief Justice John Marshall and Justice Joseph Story regarding the wartime role of the federal courts. Marshall upheld the traditional American commitment to prioritizing neutrality and free trade. But Story, taking his cue from British civilian judge William Scott (Lord Stowell), sought to make federal courts adjuncts of the American war machine, as Scott had justified British maritime captures while on the High Court of Admiralty and Hugo Grotius had done for Dutch captures in De Jure Praedae Commentarius (Commentary on the Law of Prize, 1604-1605).

Scott’s jurisprudence was a “godsend” to Story and like-minded federal judges seeking to distinguish precedents protective of neutral rights to reach outcomes sustaining American captures. Arlyck uses the case of The Nereide (1815), as a prime example. A Spanish merchant resident in Buenos Aires had chartered the Nereide, a British merchantman, to transport goods to and from London and Buenos Aires. An American privateer captured the ship and sailed it into New York harbor, where the federal district court condemned it and its British-owned cargo as prize without contest.

The issue was whether the Spanish-owned cargo—the United States was not at war with Spain and in fact had a 1795 treaty of friendship promising protection to “merchandise of what nature soever” seized by pirates or robbers on the high seas and brought into American ports (Article IX)—was also a lawful prize. The Court, per Chief Justice Marshall, held that just because “free ships make free goods” did not imply that “enemy ships make enemy goods,” and upheld the Spanish merchant’s title.

Story dissented, urging, in Arlyck’s words, the “adoption of Scott’s doctrines” anchored in “the very sort of belligerent rights that drove the United States into war in the first place.” The friendly merchant, in Story’s view, assumed the risk by shipping his neutral goods on an enemy ship, even if it wasn’t a public warship. Indeed, Story so wanted to “crack down” on Americans—many from his native New England—who sabotaged the American war machine by abusing limited licenses to trade with the enemy that he asserted that federal courts had “inherent authority” to prescribe federal common law crimes punishing such activity, even absent a statute on point. Story’s “uncompromising position” ultimately prevailed because Congress in 1813 passed a total ban on trading with Britain and the Supreme Court adopted Story’s position even for trading before the statutory ban in The Julia (1814).

Part III (Chapters 6 and 7), entitled “Courts for a New Empire, 1816-1825,” analyzes the role federal courts played in maritime seizures related to (a) attempts by European powers to contain revolution in the Western Hemisphere and (b) efforts to punish the slave trade.

As in Parts I and II, the political branches punted to the federal courts when sensitive American national security interests were implicated. This time, the question was how to balance domestic support for sister revolutionary republics in Latin America against mollifying the implicated European colonial powers, especially Spain, given its sovereignty over eastern Florida, which American southerners coveted. “Acquiring the entire peninsula would open new land for white settlers seeking to capitalize on the burgeoning European market for American cotton, and would prevent the territory from becoming a haven for enslaved persons trying to escape the murderous labor regime that made that market possible.”

The precipitating issue was letters of marque issued by revolutionary Latin American states, such as “blank privateering commissions from the United Provinces” of the Rio de la Plata (part of present-day Argentina). If the issuers were sovereign states, then the letters were valid commissions and any captures made by bearers would be valid under international laws of maritime war. If, however, the revolutionary republics were not sovereign states but still Spanish or Portuguese colonies, then the letters were invalid and the persons bearing them were not privateers and possibly subject to criminal prosecution for piracy. (American privateers had faced the same issue during the War for Independence, but Britain did not prosecute them for piracy, according to Arlyck.)

When Iberian ministers complained about the situation, the political branches insisted “on the judiciary’s exclusive authority to remedy injuries arising at sea,” which Arlyck dryly characterizes as “largely nonsense.” But, in United States v. Palmer (1818), the Court, per Marshall, ruled that “the rights a self-proclaimed republic enjoyed in wartime” were for the political branches to determine in the first instance. He also held that the 1790 Crimes Act did not give federal courts jurisdiction over piracy “committed by foreign nationals on foreign ships.” In Marshall’s view, Congress passed the statute to “punish offenses against the United States,” not “offenses against the human race.” Congress thereafter in 1819 enacted a statute ordaining that any persons who “on the high seas, commit the crime of piracy, as defined by the law of nations,” shall be brought to trial in federal court and if convicted “punished with death.” But Article I gives Congress the power “to define and punish Felonies committed on the high Seas and Offenses against the Law of Nations,” not the courts. And how did this vague statute satisfy Congress’s “obligation to define piracy with sufficient precision to warn seafarers whether their conduct may cost them their lives?”

It was Story who “found the key that unlocked more expansive federal jurisdiction” to prosecute Latin American privateers for alleged depredations against foreign vessels and in so doing uphold the constitutionality of the 1819 act. He deployed what we now call “universal jurisdiction”: the principle that pirates were hostis humani generis (“enemies of the human race”) and thus could be prosecuted by any nation. That argument both distinguished Palmer—pirates were not foreign nationals but stateless “social outcasts”—and framed the law of nations as clear-cut enough to defeat constitutional vagueness and nondelegation objections. According to Arlyck, resultant prosecutions and convictions (including several hangings) of Latin American privateers in federal court were “instrumental in securing Spain’s agreement” to ceding Florida and settling long-standing border disputes in the Louisiana and Oregon territories. That, in turn, facilitated U.S. recognition of the revolutionary Latin American republics and the launch of the United States as a regional power, as reflected in the Monroe Doctrine warning the European powers to meddle no more in the Western Hemisphere.

Barely beneath the surface of federal maritime-war cases in the first quarter of the 19th century ran an undercurrent of racially tinged prejudice against Latin American privateers and revolutionary republics and the lurking slavery issue. Privateering crews were racially diverse and largely drawn from the lower classes, as ordinary sailors generally were. Those social realities, coupled with a whiff of Protestant prejudice against the “popish” revolutionary republics, may have contributed to the courts’ willingness to proceed with criminal prosecutions of crew members on Latin American privateers.

Slave traders, like pirates, might fairly be characterized as “enemies of the human race,” and Congress had banned the importation of slaves and made it a crime in 1808, but the federal courts equivocated when it came to punishing slave traffickers. In June 1820, the captain of a U.S. revenue cutter sailed the Antelope, a South American privateer with 280 African captives taken from Spanish and Portuguese slaving vessels, into Savannah harbor. A year later, a U.S. naval vessel seized the French-flagged La Jeune Eugenie off the western African coast and sailed it into Boston seeking condemnation. There were no captives in its hold, but the chains and manacles found onboard left no doubt that the vessel had been complicit in the slave trade.

The Supreme Court decided both cases meekly. No implicated Americans were criminally prosecuted. The Court’s main holding in The Antelope (1825), set out in a Marshall opinion, restored the African captives to the owners of the Spanish and Portuguese vessels, although many captives perished or ended up staying in the United States. And while Circuit Justice Story’s opinion in United States v. La Jeune Eugenie (1822) condemned the slave trade as contrary to the law of nations and confirmed the federal courts’ in rem power to condemn foreign ships engaged in the slave trade, Story followed the State Department’s suggestion to hand the ship over to the French consul. As Arlyck notes, the bottom line was that “[n]o matter how morally repugnant, slave trading by foreigners was an activity the federal courts would police lightly, if at all.”

The federal courts are neither heroes nor villains in Arlyck’s even-handed treatment of the critical but underexamined role of the federal courts in the early history of the United States. What we see instead is a lot like what we are seeing today. The Supreme Court and federal district judges tended to align their decisions with the national security interests the president perceived. They paid lip service to lofty ideals such as republican government and the imperative of following the law of nations. But their actual decisions were often pragmatic, keeping the peace when American neutrality was the political branches’ goal and greasing the war machine when the United States was a belligerent. And when confronted with the monstrous immorality of the slave trade, the Supreme Court balked and restored enslaved persons and slave ships to European masters. The decisions in this respect foreshadow the federal courts’ handling of the Fugitive Slave Act cases and Dred Scott v. Sandford (1857).

There are three other ways in which Arlyck’s luminous book shines. First, he has a gift for explaining how pragmatism manifested itself in jurisdictional holdings. His treatment of the key maritime war cases demonstrates a rare blend of expertise as a historian and as a technical lawyer.

Second, Arlyck excels at incorporating vignettes about key figures and events in the early history of the United States and the federal courts that are not as well-known as they should be: the swashbuckling Thomas Taylor, who hailed from Delaware but emigrated to Buenos Aires and was a superstar Latin American privateer operating out of Baltimore; the litigious British consul Benjamin Moodie in the 1790s; the haughty Spanish minister to the United States, Luis de Onis; the suave Portuguese envoy, Jose Franscisco Correa da Serra; and the lawyers’ duel—in Baltimore for Taylor’s federal criminal trial—between the U.S. Attorney General William Wirt, who personally took the case, and Wiliam Pinckney, “widely regarded as the greatest lawyer of his generation.” Arlyck brings complicated themes vividly to life with his flair for narrative and the human element.

Third, Arlyck gives ample attention to the action in the lower federal courts. Legal scholarship tends to focus almost exclusively on the Supreme Court and its justices. This is in part due to the difficulty in accessing primary sources related to district- and circuit-court proceedings. But, as Arlyck shows, federal district judges such as Thomas Bee (D. S.C.), John Davis (D. Mass.), William Paca (D. Md.), and Richard Peters (E. D. Pa.), were critical as first-instance adjudicators, a role amplified by the absence of juries. Arylck’s account is a story about the federal courts as a whole, not just the Supreme Court or Supreme Court justices.

My nits are minor. First, Arlyck could have included some discussion of blockbuster cases relating to maritime captures that did not fall neatly into his three parts but are well-known today, such as Murray v. the Charming Betsey (1804), Little v. Bareme (1804), and Schooner Exchange v. McFaddon (1810). All three decisions, authored by Marshall, reached outcomes favoring the implicated foreign sovereigns, consistent with his general commitment to American neutrality, free trade, and the international peacekeeping function of the federal courts. I understand why Arlyck did not include them given his thematic organization, but informed readers will surely look for them.

Second, it would have been helpful for Arlyck to have defined and unpacked the concept of “sovereignty.” External sovereignty, in Justice James Iredell’s words in a key 1795 decision confirming the federal district courts’ prize jurisdiction, was a state's power to “regulat[e] [its] intercourse with foreign nations.” Internal sovereignty referred to a state’s “exclusive right of providing for [its] own government” within its territories. Part of what was going on in the cases Arlyck discusses—ostensibly implicating external sovereignty only—was the potential for interference with internal sovereignty, most importantly the interstate and intrastate regulation of slavery. The upshot is that some of what Arlyck captures in “The Nation at Sea” is contestation about internal sovereignty as well as outward-looking American external sovereignty.

Finally, Arlyck points out how Story worshipped Lord Stowell’s opinions as “gospel” but doesn’t dig into how an early 19th-century Supreme Court justice could so idolize British imperial admiralty-court jurisprudence when it had had been a major grievance in the War for Independence, or embrace civil law (of which admiralty was a subspecies) so devoutly given the presumed American veneration of English common law. Indeed, Arlyck notes that for “Story, the courts’ cardinal sin was importing ‘common law notions’ into prize cases” with their opaque and time-consuming focus on live testimony, ancient forms of action, and juries. By contrast, Story viewed the civil-law model of written evidence, streamlined procedures, and eminent jurists reasoning casuistically from general principles to specific cases as a “beautiful science.” The larger question of “civil law’s influence on American constitutionalism” has been an abiding interest of mine, and so I would have appreciated hearing Arlyck’s view on the matter.

“The Nation at Sea” seems especially relevant today given the reprise of maritime war as a key domain of international conflict and doubts about the United States’ commitment to the rule of law and the Supreme Court’s impartiality. What Arlyck shows in his meticulously researched book is that there are no easy answers to enduring questions. What did “rule of law” even mean in the early United States given the rejection of common law and the adoption of civil law in the formative prize context? And were federal courts dispassionate arbiters of the law, or, as John Quincy Adams once disparaged Scott in a letter to Story, “courtier judges”? A virtue of Arlyck’s book—an indispensable read for students of U.S. constitutional and foreign-relations law, international law, and federal courts—is that readers may draw their own conclusions from the tapestry of cases and people he weaves.