The republic. [volume] (Washington [D.C.]) 1849-1853, 1852-03-31

abridge the rights Of those accustomed to use
il. Yet, in the case referred TO- the Couf' eaIu
that as Congress, in the execution OF lis power
To regulate commerce, had passed no law 10 CON
troll State legislation over these smau nav
creeks, the Law of Delaware was MOI tepughaht 10
the Constitution, not being In CONNECT win any
law of Congress Ii will be remembered that the
ACT OF Congress for enrolling and licensing vessels
under which Gibbons as. Ogden was decided was
still in force, but was regarded py the CouIt us IN
appicab BILE to the obstruction occasioned by the dam
The result Of these two cases ia THE The act Il
Congress gives TO vessels enrolled and licensed un-
der il the right to navigate the public waters
wherever they find them navigabe, and that any
State law prohibiting it is unconstitutional and
void. And upon this ground the judgment OF the
State court which had decided Otherwise was re-
vereed. But that this act of Congress had no APP
pcation to an obstruction created 10y dam across
the navigable water, and that without further legs
lation by Congress the law OF Delaware which au
thorized the dam was constitutional and valid; and
upon that ground affirmed the judgment OF the
State court which sanctioned the obstruction.
difference in principle between the last
mentioned and the case at bar. There has
been fur Their legislation by Congress that sub
ject since that case was decided. And rs the prin
ciple ia the came, the decision should be the
And the Of Wilson The Backbird Greek
Marsh Company should, in my opinion, govern
this.
II can hardly be supposed that the circumstance
that port of entry is established the Ohio river
above the bridge distinguishes this case from the
one referred to. The right which the act of Con-
gress gives to vessels enrolled and licensed for the
Coasting trade is certainly not confined to the
igation between ports OF entry. They have the
right to enter any navigable creek CT river which
may suit their convenience the business and
employment in which they are engaged. And any
State laW-xhlch forblds them to do so, attempts
to conhne the right to particular persons, ID un
constitutional. Any vessel enrolled and licensed
had right to proceed up Blackbird creek as far
as she found navigable water; and her right was
perfect if port of entry had been established
at the head Of navigation. Nor can the size OF the
creek the small number of vessels that used it,
as compared with the Ohio, make any difference
between the cases 1t was the right that was in
question and that right the same, whether
the navgable water narrow or wide, or used
only by a single vessel or frequented by hundreds
The of Wilson the Backbird Creek
Marsh Company is entitled to the more weight be
cause il was decided after the case of Gibbons
Ogden, which appears by the report to have been
recalled TO the attention OF the court, and relied
upon In the argument; and the opinion in the last
delivered by the same learned Judge who
delivered the elaborate opinion III the former one
1t shows that he and the learned court in which he
presided did not consider the principles on which
Gibbons rs. Ogden was decided applicable 10 a case
where obstruction placed in q navigable
water impeding generally the passage Of vessels
and that the courts of the United States had ju
risdiction which would authorize them to remove
abate it, or treatit as unlawful without further
legislation by Congress. | think it more safe to
follow their construction OF their opinions
IN Gibbons Us. Ogden than to look for new one.
l cannot perceive how the mere grant of power to
the legislative department of the Government to
regulate commerce, can give to the Judicial branch
the power to declare what shall, and what shall
not, be regarded as an unlawful obstruction; how
high bridge must be above the stream, and how
far wharf may be extended into the water, when
we have regulation Of Congress to guide
Nor do zee how order bridge a wharf
TO be removed, unless 1t is in violation OF some Law
which we authorized to administer In taking
jurisdiction as the law now stands, we must exer-
else broad and undehnable discretion, without
any certain and safe rule to guide US. And such
discretion, when men Of science differ, when
are To consider the amount and value OF trade and
the number Of travellers and across the stream,
the interests OF communities and States sometimes
supposed TO be conflicting. and the proper height
and form Of steamboat chimneys, such discretion
appears to me much more appropriately 10 belong
10 the legislature than to the judiciary.
Besides, 1 think there is an psuperabe objection
TO this proceeding in equity, even if this bridge
should be regarded a nuisance, public pri-
vate. And IL appears TO me to be settled law in
England as well as in this country that chancery
will not interfere by Injunction where the evidence
is conflicting and the injury doubtful. / do not
speak OF inormations in chsDcery where the attor-
ney general Is party, for this is not proceeding
OF that kind; but speak of cases between individ-
ual parties, like the present one. And the rule
above stated, where there is conflict of testimony,
will be found in Story's Com p POI TO 207 where
the subject is fully examined, and the cases which
have been decided referred to. And a case where
there lie more conflict in the testimony Of men Of
high character and undouDted skill and know
ledge could hardly be imagined than is presented
in he record before u.s. Gaze where the injury
j. more doubtful; for, after the experience OF two
years, zee how small the loss has been compared
with the immense trade and the multitude Of
steamboats, which during that time have passed
under IL.
Neither can the Jurisdiction Of a court Of chan.
Gerry be supported upon the ground that the injury
is immediate and irreparable, that any serious
embarrassments lie IN the way Of an action at law.
The injury, after two years experience, has not
been found serious enough 10 Lessen the nav CATION
and commerce OF the river. On the contrary, they
have been continually increasing since this bridge
was built. And If IL be an injury for which the
party 10 entitled TO a remedy, he has a plain and
adequate remedy at law; and therefore upon gen
sral principles Of equity, and more especially
under the express pfovsiops OF the act OF 1889 he
has no right 10 come into chancery for relief And
If an action at law brought by the State in tho
circuit court Of the United States sitting In Var
GINA, the proceeding at law would be az free from
embarrassment and difficulty any action at Law
for any injury for which the law gives a remedy.
And there ia no reason 10 suppose that the respond
ents are not able 20 answer 10 any amount Of dam
age which upon the evidence in this Gaze the State
OF Pennsylvania might recover against them. ~
il should be said that, the Legislature OF Nir-
ginia have sanctioned the erection Of ths bridge,
prejudioes in favor Of IL might be supposed 10 in.
nuence the jury, the answer is obvious. The law
would be decided by the circuit court, subject 10
the revision and control Of this Court; and we are
bound 90 presume that jury in circuit court Of
the United States would do equal justice between
citizens Of their State, and another ate or it,
citizens. The Constitution and laws 40 presume.
And certainly this Court would never act upon any
apprehension that justice would not he done by q
Jury in any State when summoned and empan-
eied according 10 the Laws Of the United statcs
And stiil less could II be induced TO assume extra
ordinary and unusual powers from fears or suspi.
cions Of that kind.
But Pennsylvania has undoubtedly the right 10
In this Court or in the circuit court her cleo
ton. She has the same right 10 here in an ton
at Law, az she has to file her bill in equity And in
on action at Law brought here by the Slate Of
Georgia Bradford ct al, DsI. the case was
tried by jury in the same manner as II the suit
had been brought IN the circuit court. And the
jury brought here 10 try THE case would undoubt-
edly be free from all suspicion Of bias or prejudice
IL may be said that such proceeding here would
embarrass and retsrd the business of THE Court,
and would be expensive and onerous to the com
painsnt, az the witnesses must be brought from y
distance, and detained here for acOnsidera bic time
The is true. But the complainant, If he sues in
this Court instead OF the circuit court, dOcs 80 by
hs own choice. And II the remedy at law ia the
forum selected by him is embarrassing and crpen
siye, he has right 10 complain, go into equity
60 avoid difficulties at law which arise from the ma
ture Of the forum 10 which he voluntarily reforts;
and certainly no inconvenience 20 the court could
alter the law, nor give the court equity jurisdic-
" he la Las cd Int