# Kelsey v. Fitzhug/Concurrence Daniel

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* Concurring Opinion Daniel
United States Supreme Court
53 U.S. 443
Kelsey v. Fitzhug
Mr. Justice DANIEL.
From so much of the opinion just announced as claims jurisdiction in this case, and especially from the ground (for the first time assumed in this court) as the principal foundation of that jurisdiction, I find myself constrained to declare my dissent. It is not may purpose here to reiterate my views of the extent of the admiralty powers vested by the Constitution in the courts of the United States, nor of the sources from which those powers were conceived by the framers of the Constitution to have been derived. Those views have, on former occasions, been fully developed, particularly in the case of the New Jersey Steam Navigation Co. v. The Merchants Bank, in 6 How., 344, in my concurrence with the opinion of the late Justice Woodbury, in the case of Waring v. Clark, 5 How., 441, and in my opinion in the case of Newton v. Stebbins, 10 How., 586.
The decisions of this tribunal heretofore made, will, upon a correct examination of them, be found to rest the admiralty powers of the federal courts, not solely upon the known and established principles and limitations of the powers and jurisdiction of the admiralty in England, principles and limitations settled in that country at the time of the adoption of the federal Constitution, and rigidly adhered to there until altered by some recent legislative provisions; but they have professed to place those powers upon some supposed enlargement of the admiralty jurisdiction, said to have sprung from the practice of the vice-admiralty courts in the British colonies; a practice which, whilst it has been alleged as a justification of each instance in support of which it has been invoked, no case, no investigation has ever been able to place upon any clear and indisputable authority. It is against this undefined and undefinable warrant for the exercise of power that the objections urged by me on former occasions have been levelled. Moreover it has always seemed to me to imply a palpable contradiction, that there should be ascribed (and that by mere implication) to the vice-admiralty courts, (the creatures of the high admiralty) powers which the latter confessedly never possessed. But the doctrine at present promulged by this court, is based upon assumptions still more irregular in my view, still more dangerous than that above adverted to, because it claims for this court, wholly irrespective either of the Constitution or the legislation of Congress, powers to be assumed and carried into execution by some rule which in the judgment of this court is to be applied according to its own opinions of convenience or necessity. Thus it is admitted that by the decisions in England, the jurisdiction of the admiralty did not reach infra corpus comitatus, and was limited to the ebb and flow of the tide; and it is admitted that by the previous decisions of this court the like limitations were imposed on the jurisdiction of the admiralty in this country; and even this limitation, imposed by former decisions of this tribunal, it is obvious, allowed of some encroachment upon the common-law jurisdiction, in so far as the ebb and flow of the tide might bring the asserted power of the court infra fauces terrae, or infra corpus commitatus. But even this encroachment is not sufficient to satisfy the aspirations of the jurisdiction, now for the first time asserted; for now it is insisted that any waters, however they may be within the body of a state or county, are the peculiar province of the admiralty power; and although it is admitted that the power was once clearly understood as being limited to the ebb and flow of the tide, yet now, without there having been engrafted any new provision on the Constitution, without the alteration of one letter of that instrument, designed to be the charter of all federal power, the jurisdiction of the admiralty is to be measured by miles, and by the extent of territory which may have been subsequently acquired; a much less natural standard surely, than the nature and character of the element to which the admiralty is peculiarly adapted, and to which it owes its origin; that the Constitution may, nay must be altered by the same process, and must be enlarged not by amendment in the modes provided, but according to the opinions of the judiciary, entertained upon their views of expediency and necessity. My opinions may be deemed to be contracted and antiquated, unsuited to the day in which we live; but they are founded upon deliberate conviction as to the nature and objects of limited government, and by myself at least cannot be disregarded; and I have at least the consolation-no small one it must be admitted-of the support of Marshall, Kent, and Story in any error I may have committed. I cannot construe the Constitution either by mere geographical considerations; cannot stretch nor contract it in order to adapt it to such limits, but must interpret it by my solemn convictions of the meaning of its terms, and by what is believed to have been the understanding of those by whom it has been formed. In the view taken by the court of the evidence in this case, I entirely concur.
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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