John Jay’s Draft Opinion in Glass v. Sloop Betsey, [c. 18 February 1794]
John Jay’s Draft Opinion in Glass v. Sloop Betsey
[Philadelphia, c. 18 February 1794]1
That every District Court in the U.S. does possess all the Powers of a Court of admiralty whether considered as an Instance or a Prize Court.2
That consequently the District Court of Maryland have^s^ Jurisdiction competent to enquire and decide, whether in the present Case, Restitution can ^ought^ to be made to the Claimants, that is whether it or either of them in the whole or in part, that is, whether such Restitution can be made consistently with the Treaties, the Laws of nations and ^the Treaties & the Laws^ of the United States.3
That no foreign State [h?] can of Right institute or erect any Court of Judicature of any kind within the Jurisdiction of the U.S. but such only as may be warranted by and ^be^ in pursuance ^of^ Treaties;4 and that the admiralty Jurisdiction which has been assumed and exercised ^in the United States^ by the Consuls of France, not being so warranted, is not of Right—5
Dft, DNA: RG 267, General Records of the Clerk’s Office (EJ: 13053). Endorsed in an unidentified hand: “Opinion of the Court.” For the final unanimous opinion of the court, delivered by JJ on 18 Feb. 1794, see ADS, in the hand of Samuel Bayard, PPFAR, RG 21, CCD Maryland, Admiralty Case Files; C, DNA: RG 267, Appellate Jurisdiction Records; , 6: 347–49; : 16. The final decision was also printed in several newspapers including the Philadelphia Gazette, 21 Feb.; Gazette of the United States (Philadelphia), 22 Feb.; American Minerva, and Daily Advertiser (both New York), 25 Feb.; Independent Gazetteer (Philadelphia), 26 Feb.; General Advertiser (Philadelphia), 27 Feb.; Baltimore Daily Advertiser, 28 Feb.; City Gazette (Charleston), 26 Mar. 1794.
1. The final decision was preceded by introductory paragraphs indicating the appellants and their advocates came before the court consisting of Jay, Cushing, Wilson, Blair, and Paterson, in Philadelphia from Saturday 8 Feb. until 12 Feb. 1794, and after full hearing of the arguments, the court “proceeded to the publication of their final sentence or decree”.
2. Following the slightly revised version of this sentence, the final decree added “and that the plea of the aforesaid appellee, Pierre Arcade Johannen, to the jurisdiction of the District Court for the Maryland District is altogether insufficient; It is therefore considered by the Supreme Court aforesaid, & now finally adjudg’d and decreed by the same, that the said plea, be, and it hereby is overruled and dismissed and that the decree of the said District Court of Maryland, founded hereon, be & the same is hereby revoked, reversed and annulled.”
3. Following the slightly revised version of this sentence, the final decree added “therefore it is order’d and adjudged that the said District Court of Maryland do proceed to determine upon the libel of the said Alexander S. Glass and others agreeable to law and right, the said plea to the jurisdiction of the said Court to the contrary notwithstanding.”
4. Here, in the final version of the decree, the word “and” is omitted, and the words “it is therefore decreed and adjudged” are added.
5. Here, in the final decree is added a paragraph: “It is further ordered by the said Supreme Court that this cause be, and it is hereby, remanded to the District Court for the Maryland District, for a final decision, and that the several parties to the same do each pay their own costs.” For the background on this case, see the editorial note “The Supreme Court: Procedures and Cases,” above.
According to Dallas’s report of the case (: 15), prior to issuing this opinion the court, “having kept the cause under advisement for several days, informed the counsel, that besides the question of jurisdiction as to the District Court, another question fairly arose upon the record,—whether any foreign nation had a right, without the positive stipulations of a treaty, to establish in this country, an admiralty jurisdiction for taking cognizance of prizes captured on the high seas, by its subjects or citizens, from its enemies? Though this question had not been agitated, The Court deemed it of great public importance to be decided; and, meaning to decide it, they declared a desire to hear it discussed.” Du Ponceau, the counsel, responded “that the parties to the appeal did not conceive themselves interested in the point; and that the French minister had given no instructions for arguing it.”