IV. Bill for Establishing a Court of Admiralty
[4 December 1776]
For establishing a court of Admiralty, Be it enacted by the General assembly of the Commonwealth of Virginia that at some certain1 place to be appointed by act of General assembly there shall be held as often as there may be occasion a court of Admiralty to consist of three judges to be chosen by joint ballot of both houses of assembly and commissioned by the Governor any two of them to make a court, and to hold their offices for so long time as they shall demean themselves well therein.
Every person so commissioned before he enters upon the duties of his office shall in open court take and subscribe the oath of fidelity to the Commonwealth, and take the following oath of office to wit. ‘You shall swear that well and truly you will serve this Commonwealth in the office of a judge of the court of Admiralty: that you will do equal right to all manner of people great and small, high and low, rich and poor, of what country or nation soever they be, without respect of persons. You shall not take by yourself or by any other any gift, fee, or reward of gold, silver, or any other thing directly or indirectly of any person or persons, great or small for any matter done or to be done by virtue of your office except such fees or salary as shall be by law appointed. You shall not maintain by yourself or by any other privily or openly any plea or quarrel depending in the said court. You shall not delay any person of right for the letters or request of any one, nor for any other cause; and if any letter or request come to you contrary to the law you shall nothing do for such letter or request. But you shall proceed to do the law, any such letter or request notwithstanding. And finally, in all things belonging to your said office, during your continuance therein you shall faithfully, justly and truly according to the best of your skill and judgment, do equal and impartial justice, without fraud, favor, affection, or partiality.’2 And if any person shall presume to execute the said office without having taken the said oaths, he shall forfeit and pay the sum of 500£ for his said offence, one moiety to the use of this Commonwealth and the other to the informer, to be recovered with costs by action of debt in any court of record.
The said court shall have cognisance3 of all causes heretofore of Admiralty jurisdiction in this country, and shall be governed in their proceedings and decisions by4 the regulations of the Continental Congress, acts of general Assembly, English statutes prior to the fourth year of the reign of king James the first, and5 the laws of Oleron, the Rhodian and Imperial laws so far as the same have been heretofore observed in the English courts of admiralty, save only in the instances hereafter provided for.
If in any case the Regulations of the American6 Congress shall differ from those established by act of the General assembly of this Commonwealth,7 if such case relate to a capture from any public enemy with whom the United states of America are or may be at war the said regulations of the Congress shall8 be observed; in all other cases, the supremacy of the laws of this Commonwealth within the same shall prevail.
To prevent all doubts which may arise, it is declared that the said court shall have jurisdiction in no case whatever of any capital offence.9
The said judges shall have power to appoint10 a register and marshall each of whom, before he enters upon the execution of his office shall take the oath of fidelity to the Commonwealth, and11 shall give bond with sufficient security to be approved by the court, payable to the Governor and his successors, the said Register in the penalty of12 pounds, and the Marshall in the penalty of13 pounds with condition for their true and faithful performance of the duty of their respective offices, and accounting for and paying all money which may come to their hands by virtue thereof: which bonds may severally be put in suit and prosecuted by and at the costs of any party grieved, and shall not become void on the first recovery, but may from time to time be again put in suit by parties injured and at their costs, until the whole penalty shall be recovered thereupon.
The said court shall administer the oath of fidelity to the Commonwealth to all proctors before they shall be allowed to practice in the said court.
The said court shall have power to direct sale to be made at any time of perishable goods, taking sufficient caution that the proceeds of such sale be secured to the person to whom the same shall be decreed.
Every person commencing a suit in the said court shall file his libel, setting forth the ground of his claim with the register, who shall thereupon issue a citation directed to the Marshall commanding him to serve the same on any ship or vessel with their cargoes, rigging, Apparel, and furniture, which may be claimed, or against which satisfaction for any demand14 may be required by the libel, as also to summon the master or owner of such ship or vessel, if to be found, to appear on a certain day and at the place therein mentioned to shew cause, if any he or they can, why the claim of the libellant should not be allowed, and the Marshall shall return the truth of the case upon every such citation, and if the same shall be returned served upon such master or owner, and no person shall appear on the court day to which the same is returnable to gainsay the proceeding, the libel shall be taken for confessed, and the court shall proceed to pronounce such sentence thereupon as shall be agreeable to law; but if the master or owner, or any other person in his or their behalf shall appear and enter into a defence of the suit, in such case15 the court shall proceed to trial, sentence and execution. And if the marshal shall return on the citation that the master or owner of any such ship or vessel is not to be found, then the court shall cause proclamation to be published in the Virginia gazette for three weeks successively, requiring any persons interested to appear and defend the claim of the libellant: and if no person shall appear to make a defence at or before the expiration of the third week of proclamation, the libel shall be taken for confessed and the court shall proceed to judgment and execution thereupon, taking cautionary security of the libellant to have the effects forthcoming subject to the future decree of the court:16 and the court shall direct a copy of the decree to be published for17 weeks in the Virginia gazette: and if within18 after pronouncing such decree the master or owner or others in their behalf shall apply to the court, desire to be admitted to a defence of the suit and give sufficient security for paiment of such costs as shall be awarded against him or them if cast therein, in that case such defence shall be admitted and the court shall proceed to trial in like manner as if such appearance had been made at the return of the Citation.
In all cases of claim to any ship or vessel, their cargoes or appurtenances, after a final or Conditional judgment, the court shall have power, if they see cause, to require security for costs.
The court shall and may award costs in all such cases as appear reasonable, and executions for such costs may be issued by the Register against the body or estate of the person adjudged to pay the same, directed to any sheriff of the Commonwealth who shall execute the same in like manner, and for the same fees, and be subject to the like penalties and forfeitures for the non-execution or undue execution thereof and to the same remedy for not paying the money levied thereupon or which ought to have been levied as is directed by law in the case of such executions sued out of the courts of Common law.
Provided always that in all cases of condemnation of vessels their cargoes and appurtenances, the costs shall be paid out of the sales of the said vessels cargoes and appurtenances, and not be levied on the master or owner defending the same.
All matters of fact put in issue shall be tried by jury, unless in cases of captures from an enemy which shall be tried by the court but if such capture be from an enemy with whom the United states of America are or may be at war, then such trial shall be by court or jury as the American Congress shall direct.
Where any person or persons bodies politic or corporate shall think himself or themselves aggrieved by the final sentence of the said court in any case of capture from an enemy with whom the United states of America are at war, such Appeal shall be allowed as directed by the American Congress; and in all other cases, if of greater value than besides the costs,19 he or they may be allowed an appeal from such sentence to the court of Appeals, or may sue out a writ of error to such sentence returneable in the court of Appeals, the party appealing or suing out such writ, entering into bond with sufficient security paiable to the other party, with condition for prosecuting the appeal or writ of error and paying all such costs and damages as shall be awarded in case the sentence be affirmed and thereupon the register of the Admiralty shall transmit a copy of the record and proceedings, and the Appeal or writ of error shall be heard thereupon in like manner and the damages on affirmance shall be the same as is directed by law in the case of Appeals from the High court of Chancery.
The fees of the register shall be such as shall be settled by the General assembly;20 and those of the Marshal for any services shall be such as are allowed by law to sheriffs for the like services21 save only where the amount of the sales upon any execution would be so great as that the marshal’s fees would exceed the sum of £50.22 in which case the marshall shall be entitled to the said sum of £5022 only as a full fee for his services in levying the said execution.
Provided alwais and be it enacted that in all cases of Condemnation of vessels with their cargoes and appurtenances, as lawful prize taken from the enemy by a private ship or vessel of war wherein neither the Continent in General, or this Commonwealth in particular are interested, if the Libellant or his Agent shall desire it, the court shall have power to order the sale of the vessel, cargo and appurtenances, to be made by such libellant or his agent and an account of sales to be returned to court by him or them without any fee or reward to be given or paid to the Marshall for such sale.
And whereas by the expiration of the ordinance constituting judges to hear and determine causes maritime the several suits depending before the said judges are discontinued be it therefore enacted that the said suits shall be again reinstated in the condition in which they stood at the time of discontinuance and transferred, together with all the records of the said judges, into the court of Admiralty established by this act by which such sentence and other proceedings shall be had in the said suits as if the same had been originally commenced in the said court of Admiralty.
Dft (DLC). This rough draft is endorsed by TJ: “A Bill For establishing a court of Admiralty.” Reported by TJ 4 Dec.; read second time 9 Dec. and amended by committee of the whole; read third time and passed 14 Dec.; approved by Senate 16 Dec. (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1776, 1828 edn., p. 82, 89, 97, 98).
The speed and unanimity with which this Bill was passed indicates the importance of the subject to a maritime commonwealth. TJ’s Bill proceeded from this rough draft to final enactment with fewer amendments than almost any other legislation from his pen, most of the changes made by the legislature being necessary to supply blank spaces in TJ’s draft (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 202–206). This Bill is important also in showing (see below) that TJ must have occasionally submitted his drafts to one or more colleagues for criticism.
1. The Act omits “certain.”
2. This oath is substantially the same as that required of judges of the courts established by the three preceding Bills.
3. Draft deletes: “jurisdiction in.”
4. Draft deletes: “such rules, laws, customs, and usages as.”
5. Draft deletes: “such other rules, laws, customs, and usages as.”
6. Draft deletes: “Continental.”
7. Draft deletes: “the said regulations of Congress shall prevail in all cases relating to captures.”
8. Draft deletes: “prevail.”
9. Interlined in draft in another hand and then struck out: “but the said offences shall be tried in the General Court by a Jury of Bystanders, &c.”
10. Act reads “an advocate” at this point; this and the changes made in the Act, noted above and below, are the only differences between the draft and the law.
11. Act reads at this point: “and the said register and marshall shall each.”
12. Act reads: “one thousand pounds.”
13. Act reads: “ten thousand pounds.”
14. Draft deletes: “of wages, building, or otherwise may be claimed.”
15. Draft deletes: “an issue shall be made up and tried by a jury of the bystanders to be summoned by the Marshall or his deputy and judgment shall be entered for the libellant or defendant, according to the verdict of such jury, and the court shall direct a proper execution thereof.”
16. Interlined query in draft in another hand: “Wouldn’t it be better to allow the Libellant sell perishable goods and return the money.” This was struck out.
17. Act reads: “three.”
18. Act reads: “one year.”
19. The words “if of greater … besides the costs” were struck out by amendment (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 205).
20. Act reads: “and until such regulation shall be made the said fees shall be settled and adjusted by the said court.”
21. Interlined in draft in another hand: “Except in cases where his fees shall not exceed”; this was struck out, but the proviso following this point (written in the margin of the draft) shows that TJ accepted the suggestion.