Prize Courts    

privateer In March 1781, two Philadelphia merchants purchased the brigantine Ariel, and fitted her out with cannons, captain, and crew.  They obtained a letter of marque and reprisal from the state of Pennsylvania, and sent the Ariel to cruise the Atlantic in search of British plunder.  Within a month, the Ariel spotted a cargo ship, the Resolution, being escorted by a British privateer, the Revenge.

Score!  The Ariel ran off the Revenge, claimed the Resolution as her own, sailed her to Philadelphia, and per the law of the time, “libeled” her in a “prize court” to gain title to the ship and her rich cargo of sugar and coffee.  If all went well, these would be auctioned and the proceeds divided among the owners, captain, and crew of the Ariel.

All did not go well.  The Pennsylvania prize court found that the original British seizure of the Resolution, which had been sailing from the French-controlled island of Dominica to Amsterdam, had been illegal. When the Ariel captured the Resolution, she was capturing a pirated ship, and her captain, Peter Miller, was under obligation to return it to its owner.   The court did, however, find that the Ariel and her crew were entitled to the proceeds from selling the cargo.

Captain Miller may have wondered why he should suffer because of the illegal action of his British enemy.  Fortunately for him, Pennsylvania did not have the last word on the matter.  The Confederation Congress had recently created the first federal court in American history to hear appeals in just such cases, and Captain Miller appealed.  He achieved a footnote in history as the subject of the first opinion ever to be published by a United States federal court.


The notion of a federal court originated with George Washington, at the onset of the Revolutionary War.  Washington and Congress were creating an infant navy (see below right), and various colonies were already licensing privateers.  Both privateers and naval vessels, it was to be hoped, would capture British ships as “prizes”.  To gain reward money, they would need prize courts.  Washington urged the Continental Congress to establish such courts.

Congress hesitated.  States were already creating prize courts of their own.  Why create overlapping jurisdiction?  Congress did recognize, however, that state verdicts might be inconsistent, or might not take the interests of the United States as a whole into account, and created a right of appeal—to Congress itself.

Congress heard 64 such appeals between 1776 and 1780.  They added to the already vexing Congressional workload. 

Litigants were not shy about appealing.  Prize cases could be complicated and controversial.  More than one ship might participate in a capture and dispute the credit.  (Under admiralty law, even a ship which watched a capture could share in the credit, since her mere presence may have helped induce the prize to surrender.)  Or a ship owned by a Briton might carry cargo on behalf of a Spaniard—the former was liable to seizure, but the latter had to be returned to its owner.

As a consequence, Congress granted itself, in the Articles of Confederation (drafted in November 1777), power of “appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining, finally, appeals in all cases of captures”.

The Articles remained unratified until 1781, but Congress exercised the power to create a court anyhow, in January 1780.  The panel was named the Court of Appeal in Cases of Capture, and was to consist of three independent, salaried judges.  Congress elected William Paca of Maryland, Titus Hosmer of Connecticut, and Cyrus Griffin of Virginia as judges.  They were the first independent federal judges in American history, sitting as the first federal court.

The Court began working through the backlog of appeals, and heard new cases as they arose.  What of Captain Miller and his prize, the Resolution?  The Court had bad news for Mr. Miller.  Not only did the judges agree with Pennsylvania that the Resolution had to be returned to her original owner, but they found that the seizure of the cargo had been illegal as well.  Miller came away empty handed.

But wait!  New evidence surfaced, and the Court allowed a re-hearing six months later.  Part of the cargo, it turned out, had been shipped on behalf of three British trading firms, and as such was a valid prize.  Mr. Miller, his crew, and the owners of the Ariel achieved at least partial satisfaction.

Titus Hosmer died in 1780, and William Paca resigned in 1782.  They were replaced by George Read of Delaware and John Lowell of Massachusetts.  The Court of Appeal in Cases of Capture eventually heard and decided 56 prize cases. Congress dissolved it in 1785, after the coming of peace.

In 1789, Congress under the Constitution of the United States (COTUS) created a much larger federal judiciary, with expanded jurisdiction.  George Washington at least had not forgotten about the prize courts, because he included Paca, Griffin, and Lowell among his first nominations to the new federal bench.  Their fellow former jurist, George Read, had been elected to the Senate by Delaware and was among the Senators voting to confirm them.

Sources: J. C. Bancroft Davis, Federal Courts Prior to the Adoption of the Constitution, appendix to United States Reports Volume 131, 1888; Donald A. Petrie, The Prize Game: Lawful Looting on the High Seas in the Days of Fighting Sail, 1999; American War of Independence at Sea web site, www.awiatsea.com, accessed 2016; Miller v. The Ship Resolution, 2 U.S. 1 (1781)


The Articles of Confederation and the Navy 

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Captain Miller and his fellow privateers represented one arm of United States naval power during the Confederation era; the Continental Navy represented the other. The Continental Congress created the Navy in October 1775, shortly after the outbreak of the Revolutionary War. The Articles of Confederation gave Congress the power to raise sea forces, build and purchase “vessels of war”, appoint “all the officers of the naval forces”, make rules for their government, and direct their operations. After the coming of peace in 1783, Congress exercised its power over the Navy in the most drastic manner possible—it disbanded and sold it.

The Continental Congress launched its Navy by buying, upgrading, and arming merchant ships, and then, backed by paper currency rolling off of its printing presses, ordered the construction of thirteen frigates from scratch beginning in 1776.  (Frigates were relatively small warships built for speed and maneuverability.)  This modest force couldn’t slug it out ship for ship with the Royal Navy, which was the largest and best in the world.

But the Continental Navy could and did harass British merchant ships and pick off isolated British warships.  Between 1777 and 1779, Captains Gustavus Conyngham and John Paul Jones even took the war to the British Isles, capturing prizes in British waters and raiding the British coast.  At the same time, American privateers were doing their worst.  Every capture cost British merchants money and resulted in higher maritime insurance rates, undermining British support for the war.

On February 7, 1781, Congress created the office of Secretary of Marine to centralize management of naval operations.  But alas, by 1781, the printing presses were no longer rolling, and the navy was becoming an extravagance the nation couldn’t afford.  Ships were lost due to accident, damage, and capture, and Congress had no money to replace them.  In addition, the navy had trouble manning such ships as it had.  Privateers out-competed the Navy in recruiting captains and crews; privateers paid better (when they were successful at capturing prizes) and were less dangerous, because they ran away from enemy warships rather than seeking them out.

By fall 1781, the Continental Navy was down to two remaining frigates, with two more plus one ship of the line (a 74-gun behemoth) under construction.  In July Congress downgraded the title of the head of the navy (not yet appointed) to Agent of Marine, and in September Congress folded the office into the Department of Finance, with Superintendent Robert Morris also assuming responsibility for the navy.

In September 1782 the ship of the line (the America) was ready for launch, but Congress voted unanimously to give it to France, knowing it would be too expensive to crew and maintain.  News of peace with the British arrived in March 1783, making the navy even less of a priority.  Congress directed Morris to sell the remaining ships, one by one, to raise a few thousand dollars each and save maintenance costs.

By 1785 the navy was down to one remaining ship, the frigate Alliance.  Congress voted eight states to zero (but with four individual members dissenting) on June 3, 1785 to order it sold.  The sale took place in Philadelphia on August 1, and with the final bang of the auctioneer’s gavel, awarding the Alliance to one Richard Coburn for $7,700 in government bonds (worth about $1,500 in specie), the Continental Navy ceased to exist.

Sources: Journals of the Continental Congress, Volumes 19, 21, 23, and 28; Tim McGrath, Give Me a Fast Ship: The Continental Navy and America’s Revolution at Sea, 2014; Robert H. Patton, Patriot Pirates; The Privateer War for Freedom and Fortune in the American Revolution, 2008

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