Wheeling daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1852-1859, 1852-09-13
IcoycLUpEp PROM sArunDAY's rxrELLlcEscEE.]
SPEECH
OF THE if -
HON. u. A. WOODSVAseD,
OF SOUTH CAROLINA, -
On the Wheeling Bridge Case.

But, maintain that it is no more certain 1hat
the Constitution has conferred upon the courts
jurisdiction of the parties to such controversy
than that it has conferred upon Congress- ]urisaic
ton over the subjects and that in deciding upon the
rights of the parties, the court would be governed
by the laws of Congress in relation to the subject
In the case supposed, MAINTAIN mat tue iehls
of Georgia. founded first in the law OF nations, nave
been perfected and confirmed by the Constitution,
which has displaced the law of nations The wild
right of the law of nations has been domesticated
under our system, afforded home and place OF
rest. 1t now exists in fellowship with other nights
under the auspices of internal regulated govern
ment. -- & -rr -J.-sz .....I Ia .,rE t4s
But, while it claims the guarantees of such,
government, it must submit to its disadvantages
1t must tolerate a fair accommodation with other
rights. 1t can no more claim to be protected a
gainst unreasonable encroachments from them,
than they from it, and it is because the right is sub
ject to such conditions as justice and the publlc
interests may demand, that its regulation belongs
to the law making branch of government. Indeed,
the very word Regulation implies that; tor court
regulate nothing but its own rules procedure
The conrt has not expressly denied the right OF
Congress- to legalize the Wheeling Bridge, but lis
decree stongly implies such denial, and the doc
trines contained in the opinion pronounced on pc
half of the majority of the court arc irreconcilable
with existence in Congress of any such power
Has the court erred2
The province of judiciary is RETROSPECT tive ander
post Jacto. That of legislature prospective, and
the opposite of er post facto court looks back
"a legislature forward. The court inquiries what
has heretofore been the law; the legislature what
should it be hereafter But in this case the decree
of the court operates wholly in the future; and 1t
does not merely require the abatement of what
was adjudged a nuisance, but describes and pre-
scribes a bridge which will not be q nuisance
The court therefore, appears to assume to regulate
public right, and TO prescribe public policy. II
it does not mean this, then, in case the 'suoke-
pipes of boats shall increase in elevation as much
the decree requires the bridge to do, the court
will be bound hereafter to abate the bridge 1t now
authorizes. But let us look to the doctrines in the
opinion of the court
The doctrine of the court Is, that the Ohio river
is a common highway and alike free to all the
people Of the United States by virtue of COM
pact between the states Of Virginia and Kentucky.
To set up such compact, implies that the Con
stitution stands indifferent in relation to the matter
for, if the Constitution entertain will and
purpose, no compact of of the sort could vary or
modify that will and purpose. The Constitution Is
somewhat older that that compact and is also of a
dignity and authority much higher. MOI VIII II
help the matter to say, that Congress assented TO
that compact. A compact between States must not
only have the assent of Congress, but also that OF
the Constitutions. A compact between States to
coin money would not be made valid by the con
sent of Congress, because the Constitution has de-
prived the States of that power. So, If the com
pact in question be inconsistent with the VIII and
purpose of the Constitution it is so TAR null and
void, and elsewhere nugatory. Tose up this COM
pact, therefore, the law OF the Ilver, Is TO cX
clude the Constitution is TO ous Congress- Tor the
compact of Kentucky and Virginia confer no pow
er OH Congress-
The Constitution and the Congress being thus
excluded, two consequences follow: First, we have
important public interests and public rights ex-
traneous to the Constitution, and above the reach
of law; thing enexampled in the history OF poll
teal Institutions; and secondly, we have great
system of Interstate highways under the admins
traon of a court Of chancery, thing equally I'M
exampled in the history of jurisprudence. But
more than this: The compact in question, II 1t be
a valid one, and rights and duties have sprung from
it that did not result from the Constitution, is inca
pable of revocation, or amendment, modification,
even by the States who madeit. 1t dedicated the
the river as pubic highway to all the people OF
the United States, and such dedication can on
ly be revoked by public aw-lnaker; bur III tins
case the assumption is, that the lawmaker posses
ses no jurisdiction. No matter, therefore, what
changes the arts and the sciences may. bring about;
no matter that railways and bridges, or viaducts,
may become ten times more important to trade and
travel than rivers, and that rivers may become
full only for the conveyance of gross weight, STD
this right of navigation must retain its privileges
over concurrent rights of vastly greater Importance
and value Three forths of the States could not,
submit, alter such compact. .
Such are some of the consequences of setting up,
in lieu of uniform constitution system of petty
treaties, and compacts, and ordinances, fit only
to perplex and Illustrate the legislature. and to dis
figure the public policy. The judiciary, howev-
err is in danger of losing anything in this way
Its Jurisdiction is made sure by the character of
the parties in litigation of controversy. Indeed, it
gains just about what the constitution and the leg
Slature lose. 7-'.....
The State of Virginia has as clear right to
build bridge the Ohio at Wheeling, as Con
gress has to regulate the of the river; and
Congress has no more right to build such bridge,
than Virginia has to regulate the navigation But
what is to be done in case the bridge come in con-
fict with the privileges of navigation! The Con-
stituton has provided for the case. law OF the
United State, made in pursuance OF the Constltu-
ton, is the supreme law of the land says the Con-
stitution. This provision ofthe Constitution was
not intended to DECLARE the supremacy OF q law
of Congress over an unconstitutional State law
The Constitution itself nullifes such a law, and
the courts to declare the effect OF the Constitu
ton. Such law is no law; any valid law is SUI
preme over it. The provision in question contem-
plates valid State law and valid Law OF Con-
gress coming into incidental conflict, and requires
the law OF one State toglve way to law OF all the
States. 1t was oreseen that ifthe State law should
be made supreme, different States making different
laws, inrelation 10 the same subject, the law OF
Congress would be differently notified in different
States, and become different law in each; when,
from the nature of the subject, itshould beuniform.
But a valid law of Virginia can only be held to
yield to valid law Of Congress; the court cannot
of its own authority nvalidate it.
The Legislature of Virginia is presumed to know
the Constitution of the United States and the scope
of the powers of Congress. 1t is presumed to know
the extent of its powers. and in the absence of
a law of Congress, indicating the Roadway 10
which boats should be entitled, it is supposed to
have been capable of q legal judgement, how far
the rights of transverse CONNIE rec under its jurs
dcton, ought to yield to the privileges of COM
merce along the river But the court has presu-
med the contrary of this 1t has presumed that the
Legislature of Virginia was ignorant OF its own
powers and rights or that itwillfuly trespassed up
on those of another government. And yet, in con-
temptation of law, a court of justice possesses no
faculty for judging, or prescribing, what public ex-
pediency and policy demand Its only medium OF
knowledge is the law. s1 10 j.
The Constitution recognizes the right of naviga-
ticn on this river as absolutely unconditional and
liable to be held to no terms of accommodation
with other rights, else tregards it as capable of
regimen md discipline. If the former be The case,
then the Constitution would abate the amended
hr;a coIrt as well the lI