# Ward v. Peck/Dissent Daniel

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* Dissenting Opinion Daniel
United States Supreme Court
59 U.S. 267
Ward v. Peck
Mr. Justice DANIEL dissenting.
I dissent from the decision just pronounced: 1. On the ground that this case is not one regularly appertaining to a court of admiralty. 2. Because this decision professes to claim a power and jurisdiction admitted by the decision itself never to have been heretofore conceded to nor exerted by courts of admiralty in this country, whose power and jurisdiction in future, are to be traced for their origin to this cause alone.
With respect to the objection first stated; this cause presents no example of a maritime contract or of a marine tort. It is simply a contest as to the right of property in a subject situated within the ordinary and settled jurisdiction of the courts of common law and equity of the State of Louisiana, and could have been there as effectively determined by an action of detinue or trover, or by a bill in equity if there was danger of an eloignment of the subject in controversy, as it could possibly be in admiralty: and this fact alone should have been a reason sufficient against an abandonment of the adequate and familiar modes of administering justice, and an unnecessary resort to a tribunal which in England, we are told by Lord Hale, was never established either by common law or by statute, but had grown up entirely by encroachment and sufferance.
It is true that the subject in controversy here is a vessel; but if that single fact could justify the interposition of the admiralty, it would equally imply the same power in that jurisdiction over any dispute concerning the right of property in a vessel, although she might still be upon the stocks, and although she had never reached the water, or might, by some casualty, never touch that element.
This was simply a question of property arising out of the extent of power in an agent to dispose of it-a common and every-day question of law.
2. It is admitted that the jurisdiction now asserted for the first time in this court,-namely, the jurisdiction in petitory suits-did not belong to the admiralty in England, or was not exercised by them for several hundred years at least; and that a recent statute in the present reign, had been enacted expressly to confer that jurisdiction. It has also been said, that the jurisdiction thus recently authorized, had, in the olden time, existed in the admiralty, and had been restrained or forbidden only by the jealousy of the common lawyers. This appears to me to be an argument not founded upon the judicial history of the country, and one which is neither logical nor tenable. A reference to others of the highest and most venerable authorities, which might be added to that of Lord Hale already cited, demolishes entirely the foundation on which this argument is based. The argument is in itself illogical and illusory; for had this jurisdiction been even legitimate in the admiralty, it might doubtless have been vindicated and maintained in despite of an illegal and unfounded jealousy of the common lawyers. It never could have been forced to yield to so baseless an opposition. No authority so potent as that of an express statute could have been required, to create what not only already had being, but which was established and venerable from justice and from lapse of time.
If the inhibition had been the mere creature of jealousy or prejudice, a returning sense of right and a conviction of public advantage, would, in this as in other instances falling within the power of the courts, have corrected previous errors. The very fact of the enactment of a statute, such as that referred to, is strong evidence to show that the jurisdiction it confers had no previous or rather no rightful existence.
But it is said that no jealousy like that once felt in England against the admiralty exists in this country; and, therefore, the inveterate powers ascribed to it formerly in England, are free and unfettered for its exercise in this country. This course of argument naturally suggests with me the following inquiries: What fetters or limitations are recognized as placed upon the admiralty jurisdiction in the United States? Freed from the checks and restraints imposed upon such a jurisdiction in that country, from which the system was transferred to us, what are the checks imposed upon it here? Are there any such checks? Does it, either in theory or in practice, recognize any such-how or where are they defined or ascertained? Has it any system at all, or is it left to the judgment or fancy of those who assume to exercise power under its name?
Too true does it seem to me the case, that the ambitious and undefined pretensions of this branch of jurisprudence, have found greater favor here than in my view, is compatible with civil liberty, with public policy or private benefit; and hence I have been the more inclined to watch and prevent its dangerous encroachments, and in all sincerity can, in contemplating the favor extended to those encroachments exclaim, 'hinc illae lachrymae.'
For the jurisdiction here claimed for the admiralty, we are referred to the treatise of Mr. Arthur Brown, professor of civil law in Ireland. I have no recollection of having before seen or heard the doctrines of this professor recognized as authority; and with respect to his theories, it may justly be remarked, that if these are to be adopted as law, there is no excess of extravagance to be found in the exploded notions of Sir Leoline Jenkins, or anywhere else, which will not find an apology, nay, a full justification, in the book of this civil-law doctor. If the theories of this professor are to be regarded as binding, his disciples may look forward at no distant day to an announcement from this bench, as there has been formerly from that of one of the circuits, of the doctrine, that a policy of insurance (a mere wager laid upon the safety of a vessel) is strictly and essentially a maritime contract, because, forsooth, the vessel had to navigate the occean.
It seems somewhat singular, however, that Mr. Brown should be appealed to in support of the authority now claimed for the admiralty, when in truth his book again and again admits, that such jurisdiction had been utterly repudiated in England as a sheer usurpation, and may appropriately be styled a jeremiad over the lost authority and splendor of a system which he would exalt to the control of every other branch of jurisprudence.
I object, in all cases, to the decision of questions not strictly in point, or which have not been regularly discussed, and not only maturely but necessarily considered. If there is any one source of embarrassment more prolific than all others, it is this very practice. I cannot perceive the necessity nor the propriety of deciding matters in advance. The effect of such a practice is either the difficulty of getting clear of irregular and inapposite conclusions, or the sanction of them with the view of maintaining consistency whether right or wrong.
A great portion of the admiralty jurisdiction now permitted in this country, may be traced to a dictum in argument in the case of The General Smith, 4 Wheat. p. 444, in the assertion of a doctrine which, if now for the first time discussed and examined, might not command the sanction of this tribunal.
It is that tendency of error once countenanced or tolerated to grow into precedent, which has ever enjoined it upon me as a sacred duty to resist its approaches before they have been matured into power; and even the conviction of an inability to accomplish this result, is with me no dispensation from the duty of resistance.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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