Yale University Library

39002002972306

Brown, Henry B.
The dissenting opinions of Mr. Justice Daniel.
Detroit, 1887.

YALE
UNIVERSITY LIBRARY

This book was digitized by Microsoft Corporation in
cooperation with Yale University Library, 2008. You
may not reproduce this digitized copy ofthe book for
any purpose other than for scholarship, research,
educational, or, in limited quantity, personal use. You
may not distribute or provide access to this digitized copy
(or modified or partial versions of it) for commercial purposes.

Reprinted from American Law Review.

THE

Dissenting Opinions

-OF-

MR. JUSTICE DANIEL

HENRY B. BROWN, L. L. D.
U. S. JUDGE.

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 869

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
The student of constitutional history who desires to obtain a
complete record of the steps by which the relations now exist
ing between the Federal government and the several States were
finally established cannot afford to neglect the dissenting opin
ions of Mr. Justice Daniel. Ascending the Supreme bench at
the critical period when the doctrines of the Southern school of
statesmen and judges were beginning to give way to the necessi
ties of modern commerce, and to broader views of governmental
polity, he brought to the defense of the ancient regime great
learning and indomitable courage.
From the case of Chisholm v. The State of Georgia, in 1793,
down to the partial reorganization of the Supreme Court by
President Lincoln, every movement made by that tribunal toward
an assertion of the supremacy of the general government, or an
extension of Federal jurisdiction commensurate with the growing
needs of the country, was fought with a vigor and persistency
which seem wholly uncalled for to the present generation.
Principles of law, which are now accepted as axioms of juris
prudence, were settled only after hot debates and sometimes by
a bare majority of the court. Frequently, its conclusions were
attacked in the legislature, sometimes repudiated by statute, and
in one case (Chisholm v. Georgia, above cited), wherein the
suability of a State by a citizen of another State was affirmed, a
constitutional amendment was resorted to to overthrow it. In
deed, the controversies carried on in the privacy of the consult
ation room could scarcely have been exceeded in bitterness by
the public debates in Congress. These questions, the determin
ation of which were so vital to the future of the country, were
still unsettled, when a vacancy occurring upon the Supreme
bench by the death of Mr. Justice Barbour, was filled by the
promotion of Peter V. Daniel.
Justice Daniel was born in 1785 of an excellent Virginia fam-

870 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL-
ily, his father being a large farmer and slaveholder of o a
County. He was educated at Princeton College, studied aw
with Edmund Randolph, who had been Attorney-General ot le
United States and was admitted to the bar in 1808. After a suc
cessful practice of twenty-five years, he was in 1836 appointed
District Judge of Virginia, in place of Judge Barbour, who
had been promoted to the Supreme Court, and upon the death
of the latter in 1841, was again appointed to succeed him.
He remained upon the beach nineteen years, and devoted this
long judicial life chiefly to the writing of dissenting opinions.
During this time, which was nearly contemporaneous with Mr.
Howard's series of report's, he delivered the opinion of the court
in eighty-four cases. He dissented in one hundred and eleven
cases, though it is but just to say that he did not deliver separate
opinions in all these cases, nor did he always dissent from the
conclusions of the court. These opinions present in very forci
ble manner the extreme Southern view of most of the public
questions of the day. They exhibit patient industry and pro
found research, and while they are not always fair and temperate
in language, there is no doubt that they represent the conscien
tious views of the writer, and were dictated solely by what he
believed to be the justice of the case. They generally treat of
one of the following subjects : —
1. Slavery.
2. Internal Improvements.
3. The Relations of the National Government to the States.
4. The Jurisdiction of the Circuit Courts.
5. The Admiralty Jurisdiction of the District Courts.
In this order we propose to analyze a few of these opinions.
Slavery. — Justice Daniel had scarcely taken his seat upon
the bench when the court was confronted for the first time in its
history with the question of slavery as a political institution in
the great case of Prigg v. The Commonwealth of Pennsylvania.1
Prigg had been convicted of kidnaping a slave under a State
statute providing that if any person by force or fraud should
carry away or seduce any colored person from the State, with

1 16 Pet. 539.

THE DISSENTING OPINIONS OP MR. JUSTICE DANIEL. 871
intent to detain or sell him, he should be deemed guilty of felony.
Objection was taken to the validity of the statute upon the
ground that it conflicted with that clause of the constitution de
claring that " no person held to service or labor in one State,
under the laws thereof, escaping into another, shall, in conse
quence of any law or regulation therein, be discharged from such
service or labor, but shall be delivered up, on claim of the party
to whom such service or labor may be due." The objection was
overruled pro forma , and the case taken by writ of error to the
Supreme Court.
After a most elaborate argument all the judges but one con
curred in holding the act to be unconstitutional. Mr. Justice
Story, in delivering the opinion of the court, announced the fol
lowing conclusions : —
1. That the above clause of the constitution was self-exe
cuting so far as to authorize the owner to seize and recapture his
slave in any State, wherever he could do so without a breach of
the peace or illegal violence.
2. That any State law which interrupted, limited, delayed or
postponed the right of the owner to the immediate possession of
his slave and the immediate command of his service and labor
operated pro tanto a discharge of the slave therefrom and was
unconstitutional .
3. That the act of Congress of 1793, providing the legal
machinery for the seizure and removal of fugitive slaves by the
certificate of a Federal judge or State magistrate, was exclusive
and prohibitory of any State legislation upon this subject, whether
in aid of or in opposition to the congressional enactment.
4. That the act of Congress itself was constitutional.
5. That the power of legislation upon the subject was exclu
sive in the national government, and even if not exercised by
Congress, was forbidden to the State legislatures.
6. That the act of Pennsylvania purported to punish the
seizure and removal of a slave by his master, which the constitu
tion was designed to justify and was therefore vok
These propositions, however, did not satisfy the extreme
southern wing of the court. While concurring in the conclusion of
the majority Chief Justice Taney and Justic es Daniel and Thomp-

872 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
son dissented upon the third and fifth points in so far has.t ®
court held that the States could not pass laws in aid of the rig
of a master to the surrender of his slave. Upon the c°n*raJy
they insisted that it was enjoined upon the States as a duty o
protect and support the owner in endeavoring to obtain posses
sion of his property. .
From the opinion of his brother judges upon the constitution
ality of the law in question Mr. Justice McLean alone dissented.
In a masterly opinion he attacked the position assumed by the
court, that a slaveholder might, under the constitution, seize and
remove a negro from a State in defiance of its laws. He held,
that, in a free State, the presumption was that every person of
color was a free man, that he was as much entitled to be heard in
vindication of his freedom as was the master in assertion of his
right of property, and that the latter was bound to pursue the
remedy pointed out by the act of Congress. " The slave, as a
sensible and human being, is subject to tho local authority into
whatsoever jurisdiction he may go. He is answerable under the
laws for his acts, and he may claim their protection. The State
may protect him against all the world except the claim of his
master. Should any one commit lawless violence on the slave,
the offender may unquestionably be punished; and should the
slave commit murder, he may be detained and punished for it by
the State, in disregard of the claim of the master. *
The seizure which the master has a right to make under the act
of Congress is for the purpose of taking the slave before an offi
cer. His possession of the slave within the State, under this
seizure, is qualified and limited to the subject for which it was
made." It was the forcible removal ofthe slave without judi
cial authority that the act of Pennsylvania was designed to
prevent, and although the learned judge does not say in terms
that he considers the law constitutional, his language leaves no
doubt as to his opinion.
Looking at this case after the lapse of forty-five years, and
the extinguishment of the intense political feeling upon the sub
ject of slavery which then prevailed, his argument seems unan
swerable. His fundamental difference with the court related to
the nature of property in slaves. In the opinion of the majority

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 873
a slave was a mere chattel; in his, he was a chattel indeed, but
something more than a chattel. Reasoning from their premiss
that he was simply a piece of personal property their conclusion
was a logical one. His master was as much entitled to reclaim
him, and with as little ceremony as if he were a stray horse.
The presumption is that a domestic animal belongs to somebody
and in seizing him his owner is bound only to respect the rights
of third persons who may have some claim upon him. But in a
free State a colored man was presumed to be free and had rights
of his own which the State was authorized and bound to protect.
The slave was responsible to the State for his good conduct and
in return the State was bound to see that his liberty was not in
terfered with by any one who was not in fact his owner. As
against all the world besides, he was his own master. The act
of Pennsylvania was designed only to procure him a hearing
upon the question of ownership, and in that view was constitu
tional. Had an attempt been made to apply it to any case where
the slave-owner had established his right under the act of Con
gress, a conviction would undoubtedly have been set aside.
Fourteen years after these opinions were pronounced the ques
tion of slavery in its political relations again arose in the still
more celebrated case of Scott v. Sanford.1 No case ever de
cided by this high tribunal gave rise to so much discussion, or
created such intense public excitement as this. None was
more unfortunate in its results. None wrought greater havoc
with great reputations. Popular agitation with respect to the
" peculiar institution " was at its height. The fugitive slave law
had been carried through Congress against the protest of the
Northern States, several of which had enacted laws intended to
nullify its provisions. The Missouri compromise of 1820 had
been repealed, and an act passed admitting Kansas "with or
without slavery" as its constitution should decide. Civil war
had broken out in the territory, and each side was endeavoring
by force of arms to seize control of the government.
Such was the political state of the country when Scott (a
former slave) brought an action of trespass vi et armis against
19 How. 393.

874 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
Sanford, his late master. To his declaration, Sanford inter
posed a plea to the jurisdiction to the effect that Scott was not a
citizen of Missouri, as alleged, because he was a negro of African
descent and his ancestors were slaves. To this plea there was a
demurrer which was sustained. Thereupon defendant pleaded
in bar of the action that plaintiff was his slave, and, therefore,
that he had a right to detain him. Plaintiff claimed his freedom
upon the ground that his master, who was a surgeon in the army,
had taken him from Missouri to Rock Island in the free State
of Illinois, and thence to Fort Snelling in the free territory of
Minnesota, and had kept him in these places for about four years.
Upon this state of facts the court gave judgment for the defendant.
Two questions, therefore, were presented by the record when
the case reached the Supreme Court : —
1 . Could a person of African slave descent be a" citizen
of a State — entitled to sue as such in a Federal court ?
2. Did plaintiff's residence with his master in a free State
operate as an emancipation?
Of course if the first question were decided adversely to the
plaintiff, the second need not have been discussed. The case would
simply be dismissed for want of jurisdiction. So, too, if it were
decided that his residence in Illinois did not work an emancipation
it would necessarily follow that his residence in a free territory
would not. In either aspect of the case it was quite unnecessary
to decide whether Congress had the constitutional rio-ht to in-
corporate in the act admitting Missouri the provision prohibitino-
slavery in the territories north of 36° 30'. Upon consultation it
was decided by a majority of the judges that the case should be
disposed of upon the merits, and Judge Nelson Avas designated to
deliver the opinion of the court. Thereupon he prepared an
opinion to the effect that, as the Supreme Court of Missouri had
in a previous case decided that Scott's residence in a free State
had not changed his original condition of servitude, the Supreme
Court of the United States would act upon and follow this as the
law of Missouri, and would affirm the judgment of the Circuit
Court. This was familiar and tenable ground, and if the court
had been content with this opinion the case would probably never
have excited more than a passing comment.

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 875
In an evil hour, however, Mr. Justice Wayne conceived the
idea that the popular agitation upon the subject of slavery in the
territories might be quelled by a decision of the court that Con
gress had no constitutional power to inhibit its introduction.
There is no reason to doubt the patriotism or uprightness of his
motives in announcing to his brethren his opinion that ' ' the peace
and harmony of the country required the settlement of them by
judicial decision," but it is somewhat singular that he should have
been able to persuade the astute chief justice and several other
members of the court that a public excitement which was convuls
ing the whole country, and dividing it into hostile sections, could
be stilled by the extra-judicial decision of a majority of nine men.
The opinion of the court was delivered by the chief justice and
was to the following effect : —
1. That the question arising upon the plea to the jurisdiction
was properly before the court, notwithstanding it had been
decided in favor of the plaintiff (appellant) in the court be
low. 2. That the plaintiff, a free negro, though the descendant of
a slave, was not a citizen of the United States, and therefore that
the court had no jurisdiction.
Logically the opinion should have stopped here, and a mandate
have been issued directing the Circuit Court to dismiss the case,
as was actually done ; but the learned judge held, by a curious
process of reasoning, that the correction of this error did not
render it less incumbent upon the court to examine further into
the record, and correct other errors which might have been com
mitted " where the silence of the court might lead to misconstruction
or future controversy.'' This was a fatal mistake, but nevertheless
he went on to decide: —
3. That plaintiff's residence in the territory of Minnesota did
not work his emancipation, because Congress had no power to
prohibit slavery in the territories, and hence that the Missouri
compromise was unconstitutional. The constitutional power of
Congress " to dispose of and make all needful rules and regula
tions respecting the territory and other property of the United
States" was said to be confined to the territory then belonging
to the United States, and to have no application to that subse-
vol. xxi. 58

876 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
quently acquired, and as to such territory it had no power o
prohibit slavery.
4. That plaintiff's residence in the free State of Illinois did
not work his emancipation, because this was a question of the law
of Missouri and the Supreme Court of that State had so decided,
overruling three prior adjudications.
Here, again, was a second mistake; for if the court had
decided the second of these questions first, a decision of the first,
which was the great political question, would have been entirely
unnecessary. Indeed it is always unfortunate for a court to
decide a political question which is not absolutely essential to the
determination of the case. Upon this fourth point, and upon this
alone, Mr. Justice Nelson concurred with the chief justice. Mr.
Justice Wayne in a short opinion announced his concurrence in
the opinion of the court ' ' without any qualification of its reason
ing or its conclusions."
It is beside the purpose of this article, however, to analyze at
length the opinions of all the judges. It is sufficient to say that
the fixed determination of six of them to impose the institution
of slavery upon the territories by judicial construction is pain
fully apparent. We are interested rather in the opinion of Mr.
Justice Daniel, who, of course, took extreme ground in favor of
what may be termed the Southern side of the case. He opened
with the statement that ' ' since the establishment of the several
communities now constituting the States of this Confederacy,
there never has been submitted to any tribunal within its limits
questions surpassing in importance those now claiming the con
sideration of this court." It will be observed that in few of his
opinions does the learned judge speak of the ' ' Union ' ' — almost
always of the "Confederacy." He agrees with the chief
justice that a free negro cannot be a citizen, and that his master
cannot make him such by emancipating him — in other words,
cannot invest him with civil rights by abandoning his property
in him. He approaches the discussion of the territorial question
in very bad humor, declares that it has been attempted to con
vert the prohibitory provision of the Missouri compromise not
only into a weapon to assail the inherent powers of independent
sovereign governments, but into a mean of forfeiting that equal-

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 877
ity of rights and immunities which are the birthright of every
citizen. He expresses his assurance of the impotence of such a
pretension, but cannot " dispense with the duty of antipathy and
clisgust at its sinister aspect whenever it may be seen to scowl
upon the justice, the order, the tranquility and fraternal feel
ing," etc. He outherods Herod in declaring " that the only
private property which the constitution has specifically rec
ognized, and has imposed it as a direct obligation both on the
States and the Federal government to protect and enforce, is the
property of the master in his slave ; no other property is placed
by the constitution upon the same high ground, nor shielded by
a similar guarantee." His brother judges had been content to
put slaves upon the same footing as other property — it was
reserved to Justice Daniel to declare a higher law for their pro
tection. He went even farther than the chief justice and held
that the ordinance of 1787, for the government of the Northwest
territory was ' ' ab initio void " in so far as it prohibited the ex
istence of slavery. He was evidently only' prevented from de
claring it unconstitutional by the fact that the constitution did
not then exist. This portion of the opinion is brief, but cer
tainly to the point.
With regard to the main question in this now historical case,
viz.: the constitutionality of the Missouri compromise, it may
be said in general, that the majority of the court held that the
power of Congress to " make all needful rules and regulations
respecting the territory" of the United States, did not include
the power to legislate over them or to prohibit slavery in them,
and that the dissenting justices, McLean and Curtis, took the
opposite view.
The day upon which these opinions were delivered marks the
culmination of the power of slavery in this country. It had ex
torted from Congress a new and more efficient law for the
rendition of fugitives. It had procured the repeal of a solemn
compromise of thirty years' standing, and had now induced the
Supreme Court to enter the political arena and pronounce the
repeal to have been unnecessary, the compromise to be void,
and that under the constitution there was no .power to inhibit the
introduction of slaves into any of the territories. Slavery was

878 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
thus declared to be national and freedom local — slavery the rule,
and freedom the exception. To this perilous height had the
power of slavery climbed after eight years of congressional agi
tation. It was impossible to conceive of a triumph more com
plete. One can scarcely realize that in another eight years the
entire system had become a thing of the past.
Internal Improvements. — His views upon the power of Con
gress to carry out schemes of internal improvement are tersely,
but emphatically expressed in Searight v. Stokes.1 The Cum
berland road had been built by Congress through the States of
Maryland, Pennsylvania, Virginia and Ohio as a great national
highway between the seat of government and the valley of the
Mississippi. Owing to the great expense of keeping the road in
repair, and the opposition of a powerful minority in Congress to
works of this description, the several States through which it
passed proposed, with the assent of Congress, to take under their
care each its own portion, with power to collect toll upon all
traffic except that belonging to the government. The statute of
Pennsylvania, under which the case arose, provided that no toll
should be collected for the passage of any wagon or carriage
laden with the property of the United States, but in a subsequent
act an attempt was made to impose half toll upon all vehicles
carrying the United States mail, with passengers or goods. The
sole question presented to the court was whether this act was in
conflict with the previous act or contract under which the gov
ernment had ceded the road to the State. The majority of the
court held that it was. In delivering the opinion Chief Justice
Taney expressly denied that the constitutional power of the gen
eral government to construct this road was involved in the case,
and refused to inquire what were the rights of the United States
in the road previous to the session. Mr. Justice McLean was of
the opinion that the mails were not the property of the United
States, and that the second act was therefore valid, but he agreed
with the chief justice in disclaiming any discussion of the con
stitutional question.
While this issue was thus sedulously avoided by every
other member of the court, Mr. Justice Daniel seized with ap-
1 3 How. 151, 180.

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 879
parent eagerness upon the opportunity thus presented of
expressing his views upon the whole subject of internal im
provements. The moderate opinion of Judge McLean did not
content him. He declared the contest was one between the
government of the United States and that of Pennsylvania.
He held that neither Congress nor the Federal government
-possessed the power to construct roads, nor any other descrip
tion of internal improvements within the limits of the States.
That the power of the Federal government to acquire and of the
States to cede territory are by the constitution limited ' ' to sites
for forts, arsenals, dockyards, etc., and that these powers can
neither be enlarged nor modified, but in virtue of some new
faculty to be imparted by amendments of the constitution. " I
believe that the authority vested in Congress by the constitution
to establish post roads, confers no right to open new roads, but
implies nothing beyond a discretion in the government in the
regulations it may make for the post-office department for the
selection among various routes, whilst they continue in ex
istence, of those along which it may deem it most judicious to
have the mails transported." The key-note of his frequent dis
sent from the opinions of his brethren is found in the following
sentence : ' ' Arguments drawn from convenience or inconven-
ience can have no force with me in questions of constitutional
power; indeed, they cannot be admitted at all, for if once ad
mitted they sweep away every barrier erected by the constitution
against implied authority, and may cover every project M'hich
the human mind may conceive. It matters not, then, what or
how great the advantage which the government of the United
States may have proposed to itself, or to others in undertaking
this road, such purposes or objects could legitimate no acts
either expressly forbidden or not plainly authorized."
That these views were all extra-judicial, however, is apparent
from his confession upon a later page that the decision of the
case depended upon the construction of the statutes in which he
coincided with Justice McLean.
A somewhat similar question arose in the subsequent case of
McNeil v. State of Ohio.1 The State of Ohio, which had agreed
i 3 How. 720.

880 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
to exempt from toll all mail coaches of the United States travel
ing over this road, afterwards sought to evade this obligation by
imposing a toll upon all passengers in such coaches — a toll with
which passengers in other coaches were not charged. The court
again pronounced this kind of legislation evasive, and Justice
Daniel again dissented. We do not care to inquire whether these
were the first statutes discriminating against the methods em
ployed by the general government to carry out its functions.
They certainly were not the last.
The Relations of the National Government to the States. —
This had been a fruitful subject of discussion ever since the
adoption of the constitution, and the right of each State to tax
all personal as well as real property within its limits, regardless
of Federal legislation, had been strongly asserted by the States'
right party. It had, however, been decided as early as 1827 in
Brown v. The State of Maryland,1 with but one dissenting vote,
that a State law imposing a license upon persons selling imported
articles was an invasion of the constitutional power of Congress
to regulate commerce with foreign countries, and therefore void.
In the License Cases,3 the question was presented whether a law
requiring a license for the sale at retail of foreign liquors was
within the taxing power of a State. The court held the law to
be valid. The chief justice and two of his associates upheld the
law upon the ground that Congress could only exercise jurisdic
tion over the property so long as it remained in the original pack
ages, in the hands of the importer; but as soon as the property
passed into other hands, or was taken from the casks in which it
was imported it " passed the line of foreign commerce, and became
a part of the general mass of property in the State." Two of
the justices took the position that State laws regulating the sale
of intoxicating liquors were merely police regulations, and opera
tive so far as they did not interfere with the right to import
foreign spirits. All agreed that a law requiring a license for the
sale of liquors imported from one State into another was valid,
because Congress had allowed its powers to regulate commerce
among the several States to remain in abeyance, and upon this
i 12 Wheat. 419. , 5 How 50i_

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 881
subject the States were at liberty to legislate as they chose, until
Congress should see fit to act.
These moderate opinions, however, failed to satisfy the ex
treme views of Mr. Justice Daniel, who regretted not having
"been spared the painful duty of disagreement." He thought
the majority of the judges had seemed to go beside the questions
regularly before them, and " propounded principles and proposi
tions, against which, whensoever they may be urged as motives
for action on my part, I shall feel myself bound most earnestly
to protest" * * * " in matters involving the meaning and
integrity of the constitution, I can never consent that the text of
that instrument shall be overlaid and smothered by the glosses of
essay-writers, lecturers, and commentators. Nor will I abide the
decisions of judges, believed by me to be invasions of the great
lex legum. I, too, have been sworn to observe and maintain the
constitution. I possess no sovereign prerogative by which I can
put my conscience into commission. I must interpret exclusively
as that conscience shall dictate. Could I, in cases of minor con
sequence, consent, in deference to others, to pursue a different
course, I should, in instances like the present, be especially re
luctant to place myself within the description of the poet: Stat
magni nominis umbra."
After this almost pathetic exordium, and somewhat inapt quo
tation, the learned judge proceeds to combat the principles upon
which the case of Brown v. The State of Maryland was decided,
and to argue that the moment imported goods pass from the cus
tom house into the hands of the importer, and become his ex
clusive property, the right of the State to tax them is full and
complete. The question was certainly one upon which equally
learned and conscientious judges might differ, but it had seemed
to the majority of the court which decided that case, that a tax
upon imported goods in the hands of the importer was virtually
a tax upon foreign commerce, since these goods were generally in
transit to the interior, and perhaps to distant States. State
" duties upon imports" were expressly forbidden by the consti
tution. It was thought the right to import implied the right to
sell, as nearly all goods are imported with that expectation. It
is sufficient, however, to say, that the doctrine of Brown v.

882 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
Maryland remains unshaken to this day, and has been repeatedly
affirmed by the court which pronounced the opinion.
The Passenger Cases x involved the constitutionality of certain
State laws requiring the masters of vessels engaged in foreign
commerce to pay a tax upon every passenger brought into the
State. The case raised two questions: 1. Whether the power
of Congress to regulate commerce was exclusive; 2. Whether
these statutes were regulations of commerce. Both these ques
tions were answered in the affirmative. The first was con
sidered to have been already settled by prior decisions. A
distinction was noticed, which has ever since obtained between
cases wherein the States may act so long as Congress does not
interfere, and those wherein they may not act at all.
With regard to the meaning of the word ' ' commerce ' ' the
definition of the lexicographers — "an exchange of commodi
ties ' ' — was rejected. It was held to include all ' ' navigation and
intercourse ' ' — the transportation of passengers as well as prop
erty. It was thought to follow from this that the laws in ques
tion imposing a tax upon this intercourse were unconstitutional.
Indeed, as Justice McLean observed, if this could be done, there
was nothing to prevent a State from imposing a tax upon all
persons entering or passing through it from any other State — a
condition wholly inconsistent with the maintenance of a political
union. The power of the States to exclude paupers, criminals
and diseased persons and to regulate internal commerce was con
ceded by all.
Mr. Justice Daniel declared his disapproval of the decision.
" Impressed as I am with the mischiefs with which that decis
ion is believed to be fraught, trampling down as it seems to
me to do, some of the strongest defenses of the safety and in
dependence of the States of this confederacy, it would be worse
than a fault in me could I contemplate the invasion in silence."
He denied both propositions involved in the opinion of the court,
but rested his argument mainly upon the latter. In discussing
this, he treated somewhat lightly the definition of " commerce "
given by Justice McLean and insisted that the State had the
1 7 How. 283.

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 883
right to impose a tax upon any person or thing entering the
State, which was not an " import " within the meaning of the
constitution. There seemed to be a singular diversity of opin
ion as to whether persons could be considered as " imports."
It is now settled they cannot. The case, then, really turned
upon the meaning of the word " commerce." If it included
"intercourse" the State laws were clearly interferences — if
otherwise then the States had a right to tax passengers, as they
did not fall within the constitutional inhibition of "imports."
It is curious to observe that the dissenting justices laid great *
stress upon the evils to be apprehended from an assumption by
Congress of power over ' ' intercourse ' ' with foreign nations and
among the several States. "It would," says Justice Daniel,
' ' extend not only to the right of going abroad to foreign coun
tries, and of requiring licenses and passports for that purpose,
it would embrace also the right of transit of persons and prop
erty between the different States of the Union, and the power
of regulating highways and vehicles of transportation. ' ' In speak
ing of this, Mr. Chief Justice Taney also thought that it needed
" no argument to prove that such a power over the intercourse
of persons passing from one State to another is not granted to
the Federal government by the power to regulate commerce
among the several States." And yet so rapid has been the march
of public and judicial opinion that the generation of men then
upon the stage has lived to see this power over interstate inter
course not only assumed by Congress without hesitation and
unanimously conceded to it by the court which pronounced the
above opinion, but extended to means of intercommunication
then almost unknown.1
The restricted views he entertained regarding the power of Con
gress to regulate commerce were also manifested in the case of
Cooley v. Board of Port Wardens.2 In this case, the court,
speaking through Mr. Justice Curtis, then recently promoted to
the bench, held that the pilotage laws of the several States were
regulations of commerce, but were such regulations as the States
might prescribe in the absence of congressional legislation cover-
1 Telegraph Case, 96 U. S. 1. 2 12 How. 299.

884 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
ing the same subject. Per contra, Justices McLean and Wayne
thought the power of Congress in this particular was exclusive.
Justice Daniel coincided in the decision of the court, but dis
sented from the opinion of Justice Curtis that the acts were
regulations of commerce. In his view the power delegated to
Congress by the constitution related properly to the terms on
which commercial engagements might be prosecuted ; the char
acter of the articles which they might embrace ; the permission
or terms according to which they might be introduced, and did
not necessarily nor even naturally extend to the means of precau
tion and safety adopted within the waters or limits of the States
by the authority of the latter for the preservation of vessels and
cargoes, and the lives of seamen or passengers. He declared
himself forced to conclude that the power to enact pilotage laws
was original and inherent in the States, and not one to be merely
tolerated, or held subject to the sanction of the Federal govern
ment. The difficulty of determining the exact meaning of the words
" regulation of commerce " was encountered in a somewhat dif
ferent shape in the Wheeling Bridge Case.1 This was a bill in
equity promoted by the State of Pennsylvania to obtain the abate
ment of a bridge built across the Ohio River under an act of the
legislature of Virginia. The State claimed the right to sue by
virtue of the injury done by the bridge to its extensive system of
canals, railways and turnpikes terminating at the Ohio River, de
priving the State of its accustomed tolls and diverting its com
merce to other channels . The act authorizing the bridge provided
expressly that if it were constructed so as to injure or interfere
with the free navigation of the river, it should be treated as a
public nuisance and liable to abatement.
The majority of the court held that the State had shown suffi
cient title to maintain the bill, that no State had a right to ob
struct or hinder the free use of rivers navigated by licensed
vessels of the United States, that the court, in virtue of its gen
eral equity powers, might interfere to limit or remove such ob
struction, and then proceeded to discuss as a question of fact
1 13 How. 518.

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 885
whether the bridge was a nuisance. The gist of the opinion was
that, although Congress had never declared in terms that a State
should not obstruct the Ohio River, it had regulated navigation
upon it by licensing vessels, establishing ports of entry, imposing
duties upon masters and other officers and inflicting penalties for
neglect, etc., and also that it had expressly sanctioned the com
pact between Virginia and Kentucky that the navigation of this
river should be free and common to all.
The chief justice and Mr. Justice Daniel dissented. The lat
ter thought there never had been and perhaps never could be
brought before the court a case of higher importance or deeper
interest. He denied in the first place the right of the State to
sue by reason of its failure to aver and prove ' ' a certain and di
rect interest, or an injury, or a right of property " which a court
of justice could define, adjudge and enforce ; he denied, as it
seems to us, with great plausibility of reasoning, that the grant to
a vessel of a coasting license, or the designation of Pittsburg as a
port of entry, was a regulation of commerce over all the waters
she might choose to navigate, and pronounced the opinion of the
court in this particular an act of legislation and usurpation. He
treated the decision as an attempt to discriminate in favor of the
internal communications of Pennsylvania as against those of Vir
ginia and other States, and in favor of steamboats as against rail
ways and other vehicles of commerce, and declared that the
question of nuisance or no nuisance . should be submitted to a
jury. Four years later the case again came before the court upon a
motion for a sequestration for a violation of the injunction, and
is reported in 18 How.1 In 1854 the bridge was blown down by a
violent storm, and as the company was proceeding to rebuild
they were met by an injunction allowed by Mr. Justice Grier in
chambers. The company persisted in the work, however, claim
ing that Congress in the meantime had passed an act legalizing
the structure, and that the action of the court had been thereby
superseded. The majority of the court was of this opinion, and
the injunction was dissolved. Mr. Justice Daniel concurred in
i p. 421.

886 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
this result, but dissented from the entire court upon a point not
discussed by other members of the bench. In his opinion a sin
gle justice had no power to allow the injunction at all. He left
this interpretation of the law " to the judgment of those whom
curiosity or interest may incline to its examination."
The Jurisdiction of the Circuit Courts. — It is scarcely neces
sary to say that in every case involving the jurisdiction of the
Federal courts, Judge Daniel's vote was uniformly cast in
favor of restricting it to the narrowest possible limits. Long
respected precedents were ruthlessly brushed aside to make
room for a new doctrine of constitutional construction. His
career was a constant refutation of the charge so often made
that judges are prone to magnify the dignity and expand the
jurisdiction of their own courts. Indeed, he seemed to consider
himself not so much a member of the Supreme Court as a dele
gate sent from the States to break down the growing power of the
national judiciary. His position upon this subject was early
defined in the case of McNutt v. Bland,1 which turned upon
the requisites of citizenship as apphed to the jurisdiction
of the Circuit Courts. The defendant, who was the sheriff
of a county in Mississippi, had given bond under a local statute
to the plaintiff, McNutt, the Governor of the State, for the per
formance of his official duties. Certain parties in New York
brought suit upon the bond against the sheriff for an escape.
Defendant pleaded want of jurisdiction in the court, and also that
the debtor had been discharged from custody for the want of
payment of prison fees by the plaintiff in execution. The court
held, following Brown v. Strode,3 that the real plaintiffs were
the plaintiffs in the execution, and that the nominal plaintiff was
the mere " conduit " through whom the law afforded a remedy to
them for the acts and omissions of the sheriff, that the Governor
had no right to prevent the institution and prosecution of the
suit, and had no control over it.
Mr. Justice Daniel dissented with "unaffected diffidence."
After citing the numerous cases in which it had been held that the
requisite citizenship must appear upon the record before jurisdic-
i 2 How. 9. 2 5 Cr. 303.

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 887
tion can be entertained, and a few in which it had been said that
the court would retain the action notwithstanding the real party
in interest was a citizen of the same State with the defendant, he
attacked the case of Brown v. Strode as having been " submitted
without argument," decided without reason, and standing " with
out support and without a likeness in the whole history of our jur
isprudence. ' ' He declared the court in that case to have reversed
" a canon of the law " and to have accomplished by one short
sentence " a mighty revolution."
The learned judge discarded the distinction which has ever since
obtained in the Federal courts, between cases where the plaintiff
has the legal title, though another has the beneficial interest (as
where he is an administrator or trustee) and those where the
plaintiff is made such by statute, having no interest, legal or
equitable, and without even the power of a dominus litis. Had
a majority of the court adopted his views, it would have been
impossible for a private citizen to sustain any action whatever
upon an official bond, since such bonds always run to the State,
or some public officer residing within the State. Though the sole
person interested in the action, his right to pursue his debtor in
the national courts would have been wrested from him by a
purely technical construction of the constitution, utterly at vari
ance with its spirit and purpose.
The position of corporations before the Supreme Court was
for a long time an anomalous one. It had been held so early as
1809,1 that the citizenship of a corporation was that of its stock
holders, and hence if any one of the latter was a citizen of the
same State with the opposite party, a Federal court could not take
jurisdiction. For over thirty years this was the undisputed law
of the court. But in the Louisville R. R. Co. v. Stetson,2
this antiquated and inconvenient rule was set aside, and the
modern doctrine fully established that a corporation is a citizen
of the State from which it derives its charter. Though he was
then a member of the court, Mr. Justice Daniel did not, for
some reason not now apparent, openly dissent from this opinion.
But the case of Rundle v. Delaware and Raritan Canal Co.,8
i Bank of U. S. v. Deveaux, 5 2 2 How. 497.
Cranch,61. » U How. 80.

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
though not raising the question directly, afforded him a con
venient opportunity of expressing his views upon the whole sub
ject. He discussed the question as a constitutional one, and
declared that wherever the construction or the integrity of that
sacred instrument was involved, he could hold himself trammeled
by no precedents or number of precedents — in other words,
that authorities are of no value in constitutional cases — a some
what startling doctrine at the outset. He declared all the prior
decisions of the court in this connection unsound, contravening
all the known definitions with respect to the nature of corpora
tions, repudiating the doctrines of the civilians as to what is im
ported by the term subject or citizen, and repealing the
restriction limiting the jurisdiction of the Federal courts to
controversies " between citizens of different States." In his
view a corporation could not be treated as a citizen, and hence
the Federal courts could not take cognizance of any case to which
a corporation was a party.
Had his views been adopted by the court, the consequences
would have been disastrous, not only to the corporations them
selves, but to the business interests of the entire country, for if
there be one branch of the Federal jurisdiction more valuable
than any other, it is that which enables the national courts to
take cognizance of cases in which great and powerful corpora
tions are parties, securing a trial before courts and juries having
nothing to fear or hope for from popular elections or local pre
judices. Mr. Justice Daniel, however, reiterated these views and em
phasized his dissent, sometimes in bitter and opprobrious
language, in no less than sixteen subsequent cases in which cor
porations were parties — indeed, as he said himself, no accumula
tion of precedents and no weight of contrary opinion shook hi 4
conviction that the exercise of this jurisdiction was an usurpation.
Admiralty Jurisdiction. —It was, however, upon the subject
of the admiralty jurisdiction of the District Courts that Mr. Justice
Daniel displayed his greatest learning and intellectual strength.
Every effort to expand this jurisdiction he met with an inflexible
opposition, and to his last year upon the bench lost no oppor
tunity of putting himself upon the record as hostile to its en-

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 889
croachments upon the common law and the right of trial by
jury. The constitution and the judiciary act of 1789 had vested
in the District Courts exclusive cognizance of " all cases of ad
miralty and maritime jurisdiction," without attempting to define
the term, or prescribe the limits of such jurisdiction, either in
respect to locality or subject-matter. Prior to 1840 few cases
involving this question had been carried to the Supreme Court,
but it seems to have been the generally accepted theory that the
extent of that jurisdiction was determined by that or the high
court of admiralty of England, at the time the constitution was
adopted, curtailed as it had been by repeated writs of prohibi
tion from the common-law courts. Thus it had been settled
that there was no lien for supplies furnished at the home port,1
although if the local law gave such lien at a place within the ebb
and flow of the tide, it might be enforced in the District Courts; 2
but that a court of admiralty could in no case take jurisdiction
of a cause of action arising upon waters unaffected by the tide.3
Thus a tidal effect was made the criterion of jurisdiction, but
only in cases of contract. The opinion of the court in all these
cases was unanimous, and the question of jurisdiction was not
discussed with that elaborateness its importance demanded.
But the rapid growth of the internal commerce of the coun
try very soon aroused the attention of the court to the incon
venience of applying the English admiralty system to the
magnificent water communications of the American continent.
In the case of The De Soto (Waring v. Clark),* the doctrine of
infra corpus comitatus was considered at great length, and with
exhaustive ability. This was a collision upon the Mississippi
River, vninety miles above New Orleans, within the ebb and flow
of the tide, but also within the body of a county. While ad
mitting the law of England to be otherwise, the majority of the
court held the case to be within the admiralty jurisdiction, and
formally repudiated the doctrine that our courts of admiralty
were subject to the limitations imposed by the common-law
courts in England. This conclusion was based principally upon
i The Gen. Smith, 14 Wheat. 438. 3 The Thomas Jefferson, 10 Wheat.
2 The Planter (Peyroux*. Howard), 428; The Orleans, 11 Pet. 175.
3 Pet. 33. 4 5 How- Ui-

890 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
the ground that the colonial vice-admiralty courts were vested by
their commissions from the crown with a much more extensive
jurisdiction than that exercised by the high court of admiralty,
and that any other construction would restrict the power even of
Congress to declare what should be deemed cases of " admiralty
and maritime jurisdiction," and in fact would be a denial of all
legislation on the subject. Their conclusion was that the juris
diction extended " to tide waters, as far as the tide flows, though
that may be infra corpus comitalus."
The dissenting opinion, in which Mr. Justice Daniel concurred,
was delivered by Mr. Justice Woodbury. He took the familiar
ground that the limitations imposed by the statutes of Richard
n. were a part of the law of England at the time of the sever
ance of the States from the mother country, and thereby became
incorporated into our law. The argument from the jurisdiction
of the vice- admiralty courts was met by the assertion that this
jurisdiction could not be conferred by commission from tho crown
(which had no power to alter the established laws of the land),
and, if conferred, was never exercised. His main objections,
however, were that the proposed jurisdiction was an encroach
ment upon the right of trial by jury, and upon the judicial power
of the several States.
This case is chiefly remarkable as containing the first distinct
renunciation of English precedents upon the subject of admiralty
jurisdiction. This barrier being once broken down, each succes
sive step towards a jurisdiction commensurate with the demands
which the rapidly increasing commerce of the country made upon
the court, became easier than the last. The challenge made bv
Mr. Justice Woodbury,1 ' ' if such a change was required * * *
why not extend it at least over all navigable waters, and not halt
short at the doubtful and fluctuating and pent-up limits of tide
water " was, as we shall see, promptly accepted by the court, as
soon as the occasion required, and with the unanimous approval
of the maritime interests of the country. Indeed, Congress was
even then in advance of the court, for the very year before this
case was decided, it had provided for the extension of the mari-

p. 493.

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 891
time jurisdiction of the District Courts to the great lakes, and
their connecting waters.
The year following the case of The De Soto came that of The
Lexington (New Jersey Steam Navigation Company v. The Mer
chants' Bank).1 This was a libel to recover the value of a
large amount of specie shipped by one Harnden, an expressman
upon the Lexington, and consigned to the bank. The steamer,
which plied between New York and Stonington, was burned upon
Long Island Sound. The majority of the court were of the
opinion that the District Court had jurisdiction, notwithstanding
the fact that the contract was made and was partly to be per
formed upon land. The arguments upon both sides were of the
same general tenor as those employed in the case of The De Soto.
It was frankly admitted that under the statutes of Richard, the
jurisdiction of the high court of admiralty in cases of contract
was confined to seamen's wages, bottomry bonds, and con
tracts made and to be executed on the high seas. A somewhat
unfortunate attempt was made, however, to sustain a departure
from the English rule by referring to cases of seizure, of which
jurisdiction was vested in the District Courts by the express terms
of the judiciary act. But in concluding his opinion Mr. Justice
Nelson threw out an intimation from which the court was soon
afterwards compelled to recede, that " contracts growing out of
the purely internal commerce of the State, as well as commerce
beyond tide waters, are generally domestic in their origin and
operation, and could scarcely have been intended to be drawn
within the cognizance of the Federal courts."
Judge Daniel, in a long and exhaustive opinion, traversed much
the same ground covered by Judge Woodbury in the case of The
De Soto, and, relying almost exclusively upon English precedents,
announced his view to be that the jurisdiction of the admiralty
court was limited in matters of contract — seamen's wages ex
cepted  to things agreed upon and to be performed upon the sea,
and to cases of hypothecation, and in torts to injuries occurring
on the same theater, and excluded as to both from contracts
made or torts committed within the body of a county. From

vol. xxi.

I 6 How. 344.
59

892 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
this position he never receded to the day of his death. No mul
tiplication of precedents, no changes in the bench by the acces
sion of new judges who sided with the majority of the court,
and no argument drawn from the rapidly increasing necessities of
commerce allayed his fears of the dangers to be apprehended
from an enlargement of this odious jurisdiction, and its conse
quent curtailment of the right of trial by jury. In deference to
this sentiment, which was then very general in the profession, a
right of trial by jury was reserved by Congress in the act of
1845, extending the admiralty jurisdiction to the great lakes and
their connecting waters. How valuable this reservation is es
teemed to be may be judged by the fact that in the largest
district upon the lakes this method of trial has been resorted to
in but two or three instances since the act was passed.
In the cases of The Neptune (St. John v. Paine),1 which was
a collision upon Long Island Sound ; and The New Jersey (New
ton v. Stebbins),2 a collision in the Hudson River, he again dis
sented upon the ground that the cause of action arose not upon
the high seas, but within the body of a county.
In the case of The Martha (Rich v. Lambert) ,3 libels were filed
for damage done to goods in the course of a voyage from Liver
pool to Charleston. The case involved only a question of fact,
but Mr. Justice Daniel again entered his protest against the
jurisdiction of the court, upon the ground that the contract,
having been made upon land, to be executed by the delivery of
the merchandise upon land, the action must be at common law
upon the bill of lading.4
The next case was one of great importance and marked a new
era in the history of the American admiralty. Tired of the
trammels which the English courts had laid upon its jurisdiction,
and pressed by the needs of the rapidly growing internal com
merce of the country, Congress, in 1845, passed an act extend
ing a limited admiralty jurisdiction to the great lakes and their
connecting waters. The act is supposed to have been passed in
pursuance of an intimation of Mr. Justice Story in The Thomas
1 10 How. 557 4 This opinion was repeated in The
2 10 How. 586. Howard, 18 How. 231, 234.
8 12 How. 347.

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 893
Jefferson that perhaps under the power to regulate commerce,
Congress might extend the summary remedies of the admiralty to
the cases of voyages upon the Western waters. Its constitu
tionality, however, was fiercely assailed. It was seen at once
that it could not be sustained upon the old lines. Congress had
already exhausted its constitutional grant of admiralty jurisdic
tion by conferring upon the District Courts cognizance of ' ' all
civil causes of admiralty and maritime jurisdiction." What
language could be broader than this. Having already bestowed
" all " how could Congress possibly give more without stultify
ing itself. There was but one solution to the question. The
Supreme Court must retrace its steps, throw off its shackles and
emancipate the internal waters of the country. This was done
in The Genesee Chief,1 a case of collision upon Lake Ontario.
The power to pass the act as a regulation of commerce was
denied in an unanswerable argument of the chief justice. But
the law was supported upon the ground that the lakes were
within the scope of the admiralty and maritime jurisdiction as
known and understood in the United States when the constitution
was adopted. The " tidewater " restriction, proper and reason
able enough in England, but utterly inappropriate here, was
discarded. The case of The Thomas Jefferson was flatly over
ruled, and the jurisdiction declared to extend to all public navi
gable waters.
It will be readily inferred that this opinion did not escape the
criticism of Justice Daniel. His dissenting opinion is short and
is little more than a reiteration of his former views. The reserva
tion in the act of 1845, of the right of trial by jury, had to a cer
tain extent cut the ground from under his feet and deprived him
•of his main argument. He is evidently somewhat wearied with
the conflict and confesses that his " 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."
In the very next case, The Memphis (Fretz v. Bull),2 the
i 12 How. 449. 2 12 How. 466.

894 THE DISSENTING OPINIONS OD' MR. JUSTICE DANIEL.
court took cognizance of a collision on the Mississippi above the
tidal effect and the learned judge again dissented. He again
expressed his views upon the same subject in The New World.1
In other cases too numerous to mention, he simply announced his
dissent. In the case of The New York 2 he went so far as to deny juris
diction of a collision in the harbor of New York apparently for
the reason that one of the vessels was charged with failing to show
a light in obedience to a local regulation, though his argument is
obscure. In the case of The Mopang (Ward v. Peck),3 he dis
sented from the opinion of the court assuming jurisdiction of a
petitory action. It is amusing in this connection to observe his
dismay at the possibility of "looking forward at no distant day
to an announcement from this bench * * * 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 ocean." His prophetic
vision was evidently contemplating the decision made fifteen
years later in Insurance Co. v. Dunham,4 holding marine policies
to be maritime contracts — a decision assented to by the entire
court, participated in by one of Judge Daniel's associates and
acquiesced in without a murmur of discontent.
The Magnolia 5 was a case of collision upon the Alabama River
far above the ebb and flow of the tide and within the body of a
county. The jurisdiction was sustained upon the authority of
The Genesee Chief. In concluding his opinion Mr. Justice Nel
son, alluding to the English precedents relied upon by the dissent
ing judges and with evident reference to Judge Daniel, observes:
"Antiquity has its charms, as it is rarely found in the common
walks of professional life ; but it may be doubted whether wisdom
is not more frequently found in experience and the gradual
progress of human affairs ; and this is especially the case in all
systems of jurisprudence Avhich are matured by the progress of
human knowledge . Whether it be common chancery or admiralty
law, we should be more instructed by studying its present
1 16 How. 469, 478; The Monticello, 3 18 How. 267.
17 How. 152. * 11 Wall. 1.
2 18 How. 223, 226. 6 20 How. 296.

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 895
adaptations to human concerns than to trace it back to its begin
nings." Against the opinion of the court Mr. Justice Daniel felt " con
strained solemnly to protest." "It cannot be denied that to
earnest and successive remonstrances have succeeded still wider
departures from restrictions previously recognized, until in the
case before us every limit upon power, save those which judicial
discretion or the propensity of the court may think proper to
impose, is now cast aside." He pronounced the opinion a usur
pation "licensed in its exercise to invade the jurisdiction of
sovereign communities, and to defy and abrogate the most vital
immunities of their social or political organization." He and
Justice Campbell, who also dissented, demonstrated by unan
swerable authority that the jurisdiction of the English admiralty
never extended above the tidal effect, and that if the colonial
vice- admiralty ever assumed a broader jurisdiction it was a usur
pation, and insisted that the law as it stood at the time the con
stitution was adopted should determine its construction. Indeed
the opinion of the court can only be defended upon the ground
of expediency. It is an illustration of the tendency of all courts
to declare what the law is, by determining what it ought to be.
If it be open to the charge of being judicial legislation, it was
certainly legislation of a very beneficent character. So far from
producing "heart-burning and discontent," as Judge Campbell
prophesied, it has been received with universal acquiescence and
no attempt has ever been made by Congress to repeal it.
From these views of Judge Daniel upon the subject of admir
alty jurisdiction as an encroachment to be "tolerated" simply
because Lord Coke and the other common-law judges had
admitted that in a few cases it was a necessary evil, it may
readily be inferred that trial by jury was, in his eyes, invested
with a peculiar sanctity — something far above the profane touch
of mortals and not to be made the subject of question or argu
ment. In Mitchell v. Harmony,1 he speaks of it as " lying in
deed, at the foundation of civil society itself ; the preservation
in it's fullest scope and integrity, unaffected and even unap-
i 13 How. 138.

896 THE X". RENTING OPINIONS OF MR. JUSTICE DANIEL.
proached ry improper influences, direct or indirect, of the vener
able, the sacred, the unappreciable (sic) trial by jury." The
slightest invasion upon the right of the jury to pass upon all
questions of fact met with his sternest reprobation. It has never
been the practice of Southern judges to withdraw questions of
fact from the jury or to express an opinion upon them to any-
thino' like the extent to which it is carried in the North ; but in
the view of Justice Daniel such conduct was little short of crim
inal. In his opinion the charge of the judge should be " con
fined' to a statement of the points of law raised by the pleadings,
and to the competency or relevancy of the testimony offered by
either party in refeience to those points," and his dissent in
Mitchell v. Harmony was based solely upon the ground that Jus
tice Nelson had commented in his charge upon " the weight and
efficiency of the evidence" and declared to the jury what the
testimony did or did not prove. This, says he, " accords neither
with the nature and objects of jury trial, as indicated by its very
name, nor as affirmed by the fathers of the law who have defined
this institution and proclaimed it to be the ark of safety for life,
liberty and property." In reply to the argument that the right
of the judge to comment upon the testimony was the established
doctrine of the court he observes: " If this be so, it is a revela
tion which the friends of jury trial, in its full integrity and
independence, will grieve to learn, and will be disposed to regard
as a demolition by this court of that sacred ark of civil liberty,
for which, by the greatest services it may render, it can hardly
ever be able to atone." Strict non-interference he regarded as
' ' the doctrine which alone can prevent the inestimable trial by
jury from becoming a mere mockery and a deception to those
who have been taught to revere and rely upon it as the best safe
guard of these rights." We think he would have looked with
delight upon the statutes of certain of the States prohibiting the
judge from commenting upon the facts and confining his charge
to abstract propositions of law prepared and submitted by
counsel. The new doctrine which Mras just then beginning to obtain a
foothold in that court, and has since become so well established,
both in this country and England, that the court is not bound to

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 897
submit a mere scintilla of evidence to the jury met with as little
favor at his hands. In Pennsylvania v. Ravenal,1 he held that
' ' should the conclusion of the jury upon the weight of evidence
be never so absurd, still it is the peculiar province of the jury to
weigh that evidence, and to draw their own independent infer
ences from it, and the only legitimate corrective is to be found
in the award of a new trial, or by a case agreed, or a demurrer
to evidence." One can readily imagine his abhorrence of the
modern rule now so well settled in the Federal courts which per
mits the judge to determine not whether there is literally no evi
dence, but whether there is any upon which the jury can properly
proceed to find a verdict for the party producing it. But the
learned justice was not always consistent. Neither his veneration
for trial by jury, nor his profound respect for the rights of sov
ereign independent States withheld him in the Prigg case from
declaring a statute of Pennsylvania unconstitutional which was
intended to prevent free negroes from being kidnapped without a
trial, or from holding in the Dred Scott case, that a colored man
could not be a citizen of the United States, notwithstanding that
he was a citizen of the State in which he resided. Cela etait
tout a fait une chose differente.
We have made the above quotations from the opinions of Justice
Daniel, not by any means for the purpose of casting odium or
discredit upon him, but to exhibit the views of a political school
of which he was perhaps the last survivor. In explanation it
should be borne in mind that the constitution itself was a com
promise between those who had felt the powerlessness of Congress
under the articles of confederation, and therefore desired a strong
central authority, and those who had originally resented the in
terference of the crown, and looked with jealousy upon any
encroachment upon the sovereignty of the States. Virginia was
the home of the States Rights party. For fifty years after
the constitution was adopted and during the whole of Judge
Daniel's career at the bar the several States were practically
isolated communities, living among themselves, without rail-
i 21 How. 803, 818.

8 'J 8 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
ways, steamboats or telegraphs and with little intercommuni
cation of any sort, having different laws, customs and systems of
labor and almost absurdly resentful of outside interference. To
the traveler Richmond was then farther from Washington than
Boston is now, and in the matter of news, the Baltimore of the
first half of the nineteenth century was more inaccessible than
the San Francisco of the latter half. It can scarcely be won
dered at that each capital became the center of an intense pro
vincial sentiment. Inheriting these influences from his surround
ings, Justice Daniel had not, at the mature age at which he was
promoted to the Supreme Bench, the insight to forecast the
immense development of the future, nor the breadth of intellect
to appreciate the political changes which the new order of things
was to bring about. There is no reason to doubt his patriotism,
his perfect integrity and good faith, nor his attachment to the
constitution, as he understood it. His fundamental difference
with his brethren, (a fundamental error we should now call it,)
lay in his construction of that instrument. To him it was merely
a new charter of the old Confederacy. The United States were
not a nation, but an " agent." To use bis own words in Mar
shall v. B. & O. R. R. Co.,1 " the constitution itself is nothing
more than an enumeration of general abstract rules, promulged
by the several States, for the guidance and control of their crea
ture or agent, the Federal government, which, for their exclusive
benefit they were about to call into being. Apai t from these
abstract rules the Federal government can have no functions and
no existence." No one who reads his dissenting opinion in this
case can entertain a doubt of his conviction that the country was
drifting into a Federal despotism in which the rights of the
States would be swallowed up. " The vortex of Federal
encroachment is of a capacity ample enough for the engulfing
and retention of every power ; and inevitably must a catastrophe
like this ensue, so long as a justification of power, however
obtained, and the end of every hope of escape or redemption
can, to the sickening and desponding sense, in the iron rule
of stare decisis be proclaimed." This language is forcible
1 16 How. 346.

THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL. 899
if not lucid. In such case, in his view, there is no alterna
tive but secession. " The promulgation of a doctrine like
this does indeed cut off all hope of redress * * * unless
one may be looked for, however remote, in a single remedy —
that sharp remedy to be applied by the true, original sovereignty
abiding with the States of this Union, namely, a reorganization
of existing institutions," etc.
Happily his views did not prevail. It has been said that dis
senting opinions are very apt to be correct, and ultimately to
obtain the approval of the court. It has not been so in this
case. None of the principles he combated so vigorously have
ever been unsettled — none of his own doctrines have ever be
come the law of the land. Had the issue between him and his
brethren resulted as he desired, we should now be living under a
different flag or under a remnant of the old one. Possibly this
would have been a better country — certainly it would have been
a very different one.
His prophecies of evil have not been fulfilled. The Federal
government has indeed grown stronger. Slavery has been abol
ished. Vast sums have been expended upon internal improve
ments. The inability of the States to tax or interfere with
interstate commerce has been repeatedly affirmed. The jurisdic
tion of the Circuit Court has been from time to time largely
increased by statute. That of the admiralty court has expanded
to dimensions not dreamed of by Justice Daniel. But in all this
tbe sovereignty of the States has not been essentially impaired.
We can now see that a strong central government, located at
Washington, and made up of delegates from the several States
and the people thereof, is a very different thing from an imperial
government three thousand miles over the sea, in which the colo
nies were not represented at all. A great power has indeed
arisen upon the banks of the Potomac, but it contains no threat
of an invasion of the authority of the States. The constitution
has survived the shock of a great war. The rights of the citizen
have never been more carefully protected. The line between
Federal and State power has been more accurately drawn. The
Supreme Court of the United States has never stood so high as
now in the estimation of its suitors and the public.

900 THE DISSENTING OPINIONS OF MR. JUSTICE DANIEL.
But, while there is no reason to regret the outcome of the
struggle, one cannot fail to admire tbe pluck of the stout old
Virginia gentleman, who for nineteen years fought single-handed
for his convictions, and to the day of his death yielded not one
jot nor one tittle of what he believed to be right. As an exam
ple of moral courage the career of Mr. Justice Daniel has few if
any parallels in the judicial history of the country.
H. B. Brown.
Detroit, 1887.

YALE UNIVERSITY

a390Q2 002972301