The Case of the Mutinous Mariner

EDWARD DUMBAULD

The case of the mutinous mariner, Gideon Olmstead, presents a striking illustration of the function of the Supreme Court as an instrumentality for enforcing the legal rights of individuals. That aspect of the Court's task is often overlooked, because of the prominence of its activities as "umpire of the federal system" in pronouncing upon the allocations of power between State and federal government, and between the three branches of the federal government inter sese.1

But the importance of a bill of rights, directly protecting individuals and excluding some aspects of liberty from the jurisdiction o£ any branch of government whatsoever, has been emphasized by many writers, from Thomas Jefferson to Attorney General Edward H. Levi.2 In Olmstead's case, the Supreme Court's decree 3 enabled a veteran of the Revolutionary war to collect the pecuniary reward due him on account of his bravery in action.

Olmstead was a Connecticut seaman,4 who was taken prisoner by the British in 1778.5 While confined at Montego Bay in Jamaica, he and three other Americans were put on board the sloop Active, commanded by John Underwood, bound for New York, with a cargo of arms and supplies for the British army of occupation there.

During the voyage ( after midnight on September 6, 1778) the four American seamen mutinied. By raising the ladder and closing the hatch they confined the British officers below deck. After intermittent gunfire, and negotiations with their captives, they had gained full control of the ship, and were in sight of Little Egg Harbor, near Cape May, New Jersey, when on September 8, 1778, the Active fell in with, and was recaptured by, the brig Convention, belonging to the Commonwealth o£ Pennsylvania, commanded by Thomas Houston.6 When Houston boarded the Active, Olmstead informed him that no help was wanted; but Houston thought it incredible that the four mutineers could have subdued the fourteen British seamen on board. Accordingly he took charge of the Active, conveyed it to Philadelphia, and filed a libel against it in the Pennsylvania court of admiralty, claiming it as prize.7

The facts are succinctly summarized in the report of the case in the Supreme Court:

"Gideon Olmstead, Artimus White, Aquilla Rumsdale and David Clark, citizens and inhabitants of the state of Connecticut, were, during the revolutionary war, captured by the British, and carried to Jamaica, where they were put on board the sloop Active, to assist as mariners in navigating the sloop to New York, then in possession of the British, with a cargo of supplies for the fleets and armies of Great Britain. During which voyage, about the 6th of September 1778, they rose upon the master and crew of the sloop, confined them to the cabin, took the command of the vessel and steered for Egg Harbor, in the state of New Jersey. On the 8th of September, when in sight of that harbor, they were pursued, and forcibly taken possession of, by Captain Thomas Houston, commander of the armed brig Convention, belonging to the state of Pennsylvania, and on the 15th of September, brought into the port of Philadelphia; when Houston libelled the vessel as prize to the convention. A claim was interposed by Captain James Josiah, master of the American privateer Le Gerard, who claimed a share of the capture, as having been in sight, and by agreement cruising in concert with the Convention. A claim was also interposed by Olmstead and others, for the whole vessel and cargo, as being their exclusive prize. The state court of admiralty, however, adjudged them only one-fourth part, and decreed the residue to be divided between the state and the owners of the privateer, and the officers and crews of the Convention and the Le Gerard. From this sentence, Olmstead and others appealed to the court of commissioners of appeals in prize causes for the United States of America, where, on the 1 5th of December 1778, the sentence of the state court was reversed, and it was ordered and adjudged, that the vessel and cargo should be condemned as lawful prize for the use of the appellants, Olmstead and others, and that the marshal should sell the same, and pay the net proceeds to them, or their agent or attorney."8

The "commissioners of appeals in prize causes" was a standing committee created by the Continental Congress to exercise appellate jurisdiction in prize cases. The tribunal was set up in response to a suggestion from General George Washington. To encourage depredations on British commerce by enterprising American privateers. and to determine the propriety of condemning as prize the ships and cargoes seized in the course of belligerent operations at sea, there was need for admiralty or prize courts established under American authority.9 (See "Of Revolution, Law and Order" in YEARBOOK 1976.) {ADD LINK}

Accordingly, on November 25, 1775, Congress adopted resolutions, the fourth of which provided: "That it be and is hereby recommended to the several legislatures in the United Colonies, as soon as possible, to erect courts of Justice, or give jurisdiction to the courts now in being for the purpose of determining concerning the captures to be made as aforesaid, and to provide that all trials in such case be had by a jury under such qualifications, as to the respective legislatures shall seem expedient." Simultaneously, in the sixth resolution, it was provided "That in all cases an appeal shall be allowed to the Congress, or such person or persons as they shall appoint for the trial of appeals, provided the appeal be demanded within five days after definitive sentence, . . . and provided the party appealing shall give security to prosecute the said appeal . . .".10

The troublesome legal question presented by the Olmstead case was whether this resolution of Congress permitted de novo review of facts on appeal, or whether appellate review was limited to questions of law. The Pennsylvania act of September 9, 1778, creating a court of admiralty, provided for jury trial and declared that "the finding of the said jury shall establish the facts without re-examination or appear.'' 11 It was Pennsylvania's position that the State had power by statute to change the English admiralty practice by granting trial by jury; 12 and that accordingly the resolution of Congress authorizing appeal should be interpreted as contemplating only review of questions of law. Facts found by a jury were regarded as sacrosanct, under this interpretation.

At the trial presided over by Judge George Ross the jury apparently decided against Olmstead and his men the question of fact whether they had completely subdued the British and gained undisputed control of the Active without any help from Houston's ship.

According to Chief Justice Thomas McKean of Pennsylvania "the question was, whether the four American mariners had subdued the rest of the crew, before these vessels [the Convention and Gerard] came in sight; that is, whether hostilities had then ceased? The jury were of opinion, they had not, and gave the verdict accordingly." 13

In any event the jury on November 4, 1778, awarded Olmstead and his men only one-fourth of the net proceeds of the sloop Active and her cargo, giving three-fourths to be divided among claimants representing the Convention and the Gerard.14

The federal court of appeals, as previously stated, on December 15, 1778, reversed the Pennsylvania court's decision and awarded the entire proceeds to Olmstead and his men.l5

However, Judge Ross refused to accept the decision of the court of appeals in favor of Olmstead, because he believed that he could not proceed in any manner contrary to the jury's verdict. On December 28, 1778, he ordered the marshal of the Pennsylvania admirality court to sell the vessel and cargo, and pay the net proceeds into court.l6

On the same day the court of appeals heard argument on a motion by Olmstead that the marshal be directed to execute the decree of the court of appeals. The case was continued for further argument until January 4, 1779, at 5 p.m. At 8 a.m. on that day the court of appeals met at the urgent request of Olmstead and learned that Judge Ross had directed that the money be paid into his court at 9 a.m. by the marshal.

Accordingly an injunction was issued by the court of appeals ordering the marshal to retain the funds in his hands until further order of the court of appeals. This injunction was served upon the marshal before payment by him into court, but he disregarded it. With knowledge of the injunction, he paid the money over to Judge Ross, who gave a receipt for it.

Thereupon the court of appeals noted of record that the judge and marshal of the Pennsylvania court of admiralty had refused obedience to the decree and writ of the court of appeals, but that the court of appeals was "unwilling to enter upon any proceedings for contempt, lest consequences might ensue . . . dangerous to the public peace of the United States." However, the court of appeals refused to "proceed further in this affair" or to "hear any appeal" until "the authority of this court be so settled as to give full efficacy to their decrees and process." To that end the court of appeals ordered that a report of the proceedings in the case of the Active be laid before Conress.l7

Judge Ross received from the marshal the sum of £47,981-2s.-Sd. in Pennsylvania currency. Of this £11,496-9s.-6d. was the share of Pennsylvania as owner of the brig Convention. He turned that amount over to David Rittenhouse, the State Treasurer, from whom he took a bond to indemnify him if "the said George Ross shall hereafter, by due course of law, be compelled to pay the same, according to the decree of the court of appeals" in the case of the sloop Active.18

Judge Ross died in 1790.19 Suit in assumpsit against his executors for money had and received was brought by Olmstead in the Court of Common Pleas of Lancaster County, and judgment of £3248-4s.-7l/4d. obtained by default, the defendants having received no notice of the proceedings until after entry of final judgment. Ross's executors then sued Rittenhouse on his bond. The Pennsylvania Supreme Court held that the Lancaster County court, being a court of common law, had no jurisdiction of what was really an admiralty case, and that Rittenhouse was thus not liable on his bond.20

In this case Chief Justice McKean pointed out that he had been president of the court of appeals in 1778 when Olmstead's case was heard by that tribunal, but had declined to sit, because of conflict of interest, as he was also Chief Justice of Pennsylvania.21 He had hoped that in some way the case could have been decided by the United States Supreme court, but this expectation had been disappointed. Being thus obliged to express an opinion, McKean concluded that reexamination of facts found by a jury was repugnant to "the genius and spirit of the common law" and that "the decree of the committee of appeals was contrary to the provisions of the act of congress and of the general assembly, extra-judicial, erroneous and void." 22

Then on June 27, 1796, Rittenhouse died.23 On May 27, 1802, Olmstead brought suit in the United States District Court for Pennsylvania against his daughters, Elizabeth Sergeant and Esther Waters, executrices of his estate.24 This action sought enforcement of the 1778 decree of the court of appeals. On January 4, 1803, the celebrated Judge Richard Peters decided in favor of Olmstead.25 Nothing further occurred until May 18, 1807, when counsel for Olmstead sought a rule to show cause why the decree of Judge Peters should not be carried into execution.26 In response the defendants called attention to a Pennsylvania statute of April 2, 1803, asserting the commonwealth's interest in the money, and advancing the Eleventh Amendment as a bar to suit against Pennsylvania.27

Again there was no action taken until March 5, 1808, when Olmstead sought a mandamus against Judge Peters to secure execution of his 1803 decree.28 With commendable prudence, Judge Peters had denied the relief requested by Olmstead, not desiring to incite armed conflict between State and federal government on the strength of his own opinion alone, without confirmation by the Supreme Court. His refusal to act cleared the way to consideration of the case by the Supreme Court.

On February 20, 1809, Chief Justice John Marshall pronounced the decision of that tribunal, granting the writ of peremptory mandamus and directing execution of the decree in favor of Olmstead. In impressive language he declared:

"If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals."

If the ultimate right to determine the jurisdiction of the courts of the Union is placed by the constitution in the several state legislatures, then this act [of April 2, 1803] concludes the subject; but if that power necessarily resides in the supreme judicial tribunal of tile nation, . . . the act of Pennsylvania, with whatever respect it may be considered, cannot be permitted to prejudice the question.30

But Marshall's decision did not end the matter. What had been a lawsuit between an old sailor and two women 31 became an armed confrontation between Pennsylvania and the federal government. Governor Simon Snyder, a week after the Supreme Court decision,32 ordered General Michael Bright of the Pennsylvania militia, to protect the ladies 33 against unwelcome attentions of the United States marshal who was attempting to serve the execution process issued by Judge Peters on March 24, 1809, pursuant to the Supreme Court's mandate.34

When the marshal found the residence of the ladies guarded by militia (hence known colloquially as "Fort Rittenhouse") he set a date three weeks ahead as the time when he would return with a posse. After this diversion, the wily marshal succeeded in climbing a back fence and entering the house from the rear. He served his process and seized the ladies. Chief Justice Tilghman of the Pennsylvania Supreme Court, after a hearing on an application for habeas corpus remanded them to the custody of the marshal.35 They were released upon payment by the Governor of money made available under an ambiguously worded act of April 4, 1809, appropriating $18,000 for use in connection with the Olmstead matter.36

Governor Snyder wrote to President James Madison on April 6, 1809, urging that the federal government desist from enforcement of the court's decision. Madison replied firmly, on April 13, 1809, that "the Executive of the United States is not only unauthorized to prevent the execution of a decree sanctioned by the Supreme Court of the United States but is expressly enjoined, by statute, to carry into effect any such decree where opposition may be made to it."37

Moreover, General Bright was indicted by a federal grand jury for obstructing justice . At his trial before Justice Bushrod Washington, the jury, in a special verdict, found that he had resisted the marshal, and had done so under the orders of the constituted authorities of the Commonwealth of Pennsylvania, leaving to the court to decide whether such action under the circumstances constituted the crime charged.

Justice Washington entered judgment of conviction and sentenced General Bright to three months' imprisonment and a fine of $300, and the other defendants to one month's imprisonment and a fine of $50 each. President Madison promptly pardoned all defendants,38 and gratefully regarded it as "a blessing" that "The affair of Olmstead has passed off without the threatened collision of force." 39

So the case of the mutinous mariner resulted in the judicial vindication of his property in the prize money earned by his bravery thirty years earlier during the American Revolution.40 The Supreme Court had played its part as an instrumentality for enforcing the legal rights of individuals (as well as functioning as umpire of the federal system).

Endnotes

1 Sometimes, says Attorney General Edward H. Levi, with respect to the Court's function as umpire, "this may be the inevitable conse- quence of the courts' performance of their proper duties." Levi, "Some Aspects of Separation of Powers," Columbia Law Review Vol. LXXVI No. 3 (April, 1976) 371, 387. In other instances the propriety of judicial intervention is less clear, and may reflect the tendency of an "imperial judiciary" to augment its own powers. Ibid., 371, 382.

2"Some powers have been confided to no branch," says the Attorney General. lbid., 385. For Jefferson's view, see Dumbauld, The Political Writings of Thomas Jefferson (New York, 1955) xxvi-xxvii; and Dumbauld, "Thomas Jefferson and American Constitutional Law," Journal of Public Law, Vol. H No. 2 (Fall, 1953), 370, 384. Since "the purposes of society do not require a surrender of all our rights to our ordinary governors, Jefferson declared, it follows that "a bill of rights is what the people are entitled to against every government on earth."

3 The crucial decision was U.S. v. Peters, 5 Cranch 115 (1809). An earlier effort in the courts of Pennsylvania tocollect was unsuccessful. Ross v. Rittenhouse, 2 Dall. 160 (Pa. l 1792). So was an appeal to the Pennsylvania General Assembly. See Sundry Documents, Relative to the Claim of Gideon Olmstead, against the Commonwealth of Pennsylvania. Respectfully submitted to the Consideration of the Members of the Legislature of Said Commonwealth. Philadelphia, 1808. The Supreme Court's decision evoked a "Protest of Pennsylvania against the Decision of the Supreme Court in the Case of Gideon Olmstead," forwarded by President Madison to the Senate on June 4, 1809, printed in Walter Lowrie and Walter S. Franklin (eds.), American State Papers, Miscellaneous, II, 2-12 (Washington 18~4). For discussions of the case see Hampton L Carson, "The Case of the Sloop 'Active' " The Pennsylvania Magazine of History and Biography, Vol. XVI, No. 4 (January, 1893) 385-98; Kenneth W. Treacy, "The Olmstead case 1778-1809," The Western Political Quarterly, Vol. X, No. 3 (September, 1957), 675-91; and the biography by Louis F. Middlebrook, Captain Gideon Olmstead (Salem Mass., 1933). Good accounts are also found in Charles G. Haines, The Role of the Supreme Court in American Government and Politics 1789-1835, 270-78 (Berkeley, Calif., 1944); and in Charles Warren, The Supreme Court in United States History, 1, 374-86 (Boston, 1992) I have seen references to but have not have an opportunity to examine Richard Peters, The Whole Proceedings in the Case of Olmstead and Others versus Rittenhouse Executrices (Philadelphia, 1809).

4 Olmstead was born on February 12, 1749/ 50. Middlebrook, note 3 supra, viii. He died on February 8, 1845, at the age of 96. Ibid., 170.

5 The Polly, upon which Olmstead was serving, was captured by the Ostrich. Ibid., 39.

6 The Gerard, commanded by Captain James Josiah, was cruising with the Convention and was within sight when Houston boarded the Active. Middlebrook, 61.

7 Sundry Documents, note 3 supra, 3; Carson, note 3 supra, 386-87.

8 5 Cr. at 118. This report sets forth most of the pertinent documents in the case. The graphic testimony of the occupants of the ship is given in full detail in Sundry Documents, note 3 supra, 8-13.

9 131 U.S. App. xix-xxvi. For Washington's letter to the president of Congress, of November 8, 1775, see John C. Fitzpatrick, ea., The Writings of George Washington, IV, 73 (Washington, 1931). On the same day he wrote to Richard Henry Lee: "I should be very glad if the Congress would, without delay, appoint some mode by which an examination into the captures made by our armed vessels may be had, as we are rather groping in the dark till this happens." Ibid., 75.

10 Worthington C. Ford and others, eds., Journals of the Continental Congress [34 vols. Washington, 1904-1937, cited hereinafter as J.C.C.], III, 373-74. See also 5 Cr. 127, and 3 Dall. 55-56. Perhaps jury trial was recommended because it was a widely-felt grievance later listed in the Declaration of Independence that British legislation had extended "the powers of the admiralty courts beyond their ancient limits" thus "depriving us in many Cases, of the Benefits of Trial by Jury." Dumbauld, The Declaration of Independence and What It Means Today, 132-33 (Norman Okla., 1950). Congress at first referred several appeals to special committees, but on January 30, 1777, resolved tha a standing committee of five members be appointed to hear and determine appeals. J.C.C., VII, 75. The membership of the committee changed from time to time. It was this standing committee which heard the Olmstead case. Not until January 15, 1780, was a permanent court of appeals created, consisting of three judges. J.C.C., XVI 61. For convenience we shall speak of the standing committee as the court of appeals, as Chief Justic Marshall does. 5 Cr. at 137.

11 James T. Mitchell, et al. (eds.), The Statutes at Large of Pennsylvania, 18 vols. [except vol. I] (Harrisburgh 1896-1915), IX 279. The act of March 8, 1880, repealing the act of 1778, provided for trial of prize cases "by the law of nations and the acts and ordinances of . . . Congress . . . by witnesses according to the course of the civil law." Ibid. x, 97-98. On January 15, 1780, Congress expressly provided, when creating a permanent court of appeals, that "the trials therein be according to the law of nations, and not by jury." J.C.C., XVI, 61. See also 5 Cr. 128.

12 Just as it has power by statute to change the common law. Chief Justice McKean cited the example of an act of Parliament (28 Hen. VIII, c. 15) providing trial by jury in cases of piracy, previously triable in the admiralty under the civil law. Ross v. Rittenhouse, 2 Dall. 160, 163 (1792). Likewise a Virginia statute (drafted by Thomas Jefferson) introduced jury trial in equity cases. Julian P. Boyd, ea., The Papers of Thomas Jefferson, I, 615 (Princeton 1950); William Waller Hening, The Statutes at Large [of Virginia], IX, 394 (Richmond 1821). "But this being found inconvenient, the act was repealed, October, 1783, c. 26." St. George Tucker, Blackstone's Commentaries, III (App.) 56 (Philadelphia, 1803). Similarly, Congress has sometimes provided for jury trial in admiralty cases [The Genessee Chief, 12 How. 443, 459-60 (1852)] and for review of admiralty and equity decrees by bill of exceptions rather than by appeal [Wiscart v. Dauchy, 3 Dall. 321, 327-29 (1796)]. The Seventh Amendment to the United States Constitution (effective December 15, 1791) provided that "In suits at common law . . . [but not in equity or admiralty] the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise examined in any Court of the United States, than according to the rules of the common law."

13 Ross v. Rittenhouse, 2 Dall. 160, 161 (Pa. 1792). McKean may have been aware of the controversy over review of jury verdicts (in 1763-66) between the New York courts and colonial governor Cadwallader Colden in connection with the case of Forsey v. Cunningham. See Joseph H. Smith, Appeals to the Privy Council from the American Plantations, 390412 (New York, 1950).

14 5 Cr. 121.

15 5 Cr. 119. For the text of the decree of the court of appeals, see Middlebrook, 68-69; and Sundry Documents, 16-17. Benedict Arnold was surety for Olmstead on the appeal and it was he who warned the court of appeals that Judge Ross planned to receive the money from the marshal before the court of appeals could act. Carson, 388.

16 5 Cr. 120-21.

17 5 Cr. 122-23; Sundry Documents, 20-22. Congress upheld the court's authority. J.C.C. XIII, 281-86. See also Sundry Documents 25; and 3 Dall. at 82-85.

18 5 Cr. 123-24. It is not clear whether Rittenhouse received only proceeds of the cargo, or also of the ship. The latter had not yet been sold on January 4, 1779. Sundry Documents, 21. It is also not clear what was done with respect to the shares of other claimants than the State. See Treacy, 683; and Middlebrook, 150.

19 Carson, 393

20 Ross v. Rittenhouse, 2 Dall. 160, 164, 165-66, 169 (1792).

21 Ibid., 162. 1

22 Ibid., 163. See note 12 supra. Justices Shippen and Yeates did not agree with McKean on this point, but joined in the holding that the Lancaster County court had no jurisdiction of the case. 1bid., 165, 169.

23 Middlebrook, 131.

24 5Cr. 131.

25 Ibid., 124-26. The case is also reported as Olmstead v. The Active, Fed. Cas. No. 10503a, 18 Fed. Cas. 680. It had by then been decided by the Supreme Court in Penhallow v. Doane, 3 Dall. 54, 86 (1795), a similar case arising in New Hampshire, that decrees of admiralty courts set up by the Continental Congress could be enforced in federal courts under the Constitution.

26 5 Cr. 126.

27 Ibid., 127-35; Statutes at Large of Pennsylvania, note 11 supra, XVII, 472-80. The act had been passed through the instrumentality of l Thomas McKean, who had become governor! of Pennsylvania. Carson, 394. Chief Justice Marshall disposed easily of the Eleventh Amendment issue. 5 Cr. 139-41. It is interesting to note that Justice Washington, in U.S. v. Bright, Fed. Case. No. 14647, 24 Fed. Cas. 1232, 1236 (D. Pa. 1809), drew attention to an additional reason why the Eleventh Amendment was of no avail to the State. That Amendment refers only to suits "in law or equity" anal does not mention admiralty. But later in Ex parse State of New York, 256 U.S. 490,1 497-98 (1921), the Supreme Court applied the Amendment in an admiralty case.

28 5Cr. 116.

29 Ibid., 117.

30 Ibid., 136. This passage antedates the better-known expressions of the same principle in McCulloch v. Maryland, 4 Wheat. 316, 4361 (1819), and Cohens v. Virginia, 6 Wheat. 265,1 377, 385, 388 (1821). 1

31 Carson, 394. l

32 Middlebrook, 151.

33 Pursuant to ¤2 of the Act of April 2.1 1803. 5 Cr. 132. 1

34 Middlebrook, 150: U.S. v. Bright, Fed Cas. No. 14647, 24 Fed. Cas. 1232, 12345 (1809).

35 Carson, 394-97; Treacy, 686.

36 The sum was "made subject to the orders of the governor" to enable him to carry into effect every engagement of the Commonwealth touching the premises in such manner as may appear to him to be advisable, just and proper, and to meet all contingent expenses which may arise" in the execution of previous directions of the legislature. Statutes at Large of Pennsylvania note 11 supra, XVIII, 1164. See also Protest of Pennsylvania, note 3 supra, 12.

37 Debates (11 Cong., 1 and 2 sess.), 2269.

38 U.S. v. Bright, Fed. Cas. No. 14647, 24 1 Cas. 1232, 1238 (D. Pa. 1809). Justice Washington rejected the "Nuremberg defense" of obedience to the orders of a superior officer. Ibid., 1237-38.

39 Madison to Attorney General Caesar A. Rodney quoted in Warren, The Supreme Court in United States History, 1, 385.

40 Olmsted was said to be 84 years old when collected his claim. Treacy, 690.

Copyright 1976, Supreme Court Historical Society