The republic. [volume] (Washington [D.C.]) 1849-1853, 1852-03-31
State in whose Jurisdiction the injury was sus-

I a z
ton in questions of boundary between Stat stand
on different ground. The gina jursdictop wa 3
conferred by the Coulttuiion The evidence up
on which the right in controversy must be decided
depended upon the laws and usages o. nations in
disputes Of that kind. Congress had power over
the subject II could neither give nor take away
the right OF either party, nor prescribe the evidence
by which il was TO be tried. All that Congress was
| required to do could do to nutbo, izc the
Court to issue the proper process To bring the par
ties before it, and to conduct the proce eediDg to
final Judgment. This admitted all Ina ands To
be necessary before the Court could exercise the
| jurisdct ton which the Constitution had conierred
| And in the case Of New Jersey us New York, q
Pet. 2S7, 1851 twas held that the OF 1889 and
| 1892 had clothed the Court with the necessary
| power.
The rule as to navigabc waters ia undoubtedly
| this: Every independent nation has the exclusive
jurisdiction over the navigable waters lying with
its territorial limits 1t has the right to regulate
| commerce upon them. and to determine what
bridges may be built over them, piers wharves
extended into them. And an erection authorized
by the Legislature cannot be nuisance, public
private. This the situation Of the old States
prior to the adoption of the Constitution Each
was then Independent sovereign State. But by
the Constitution Of the United States they surren-
dercss TO <hs CenevaI LIZA oaatovc
gulatc commerce. And thns. while they retained
| their absolute territorial jurisdiction over their
navigable waters in ali other respects Congress
| may forbid the erection Of any structure In
| navigabIe stream which il deems obstruction to
commerce, and may declare 1t a nuisance and di.
ity of the State the river remains, subject 10
that Limitation. For otherwise, until Congress
thought proper to lcgisate, navigation the river
| would be under control Boats might be
down with impunity, and obstruciions of every
kind erected in or over it, which the State could
not prevent or punish
ritory Of Virginia. Prior to the adoption Of the
Constitution Of the United States she had an un-
questionable right to authorize it's erection. She
slI possesses the same control over the river, sub
4 jecf to ho nj SD a
/ regulation Of commerce. The United States and
Virginia are the only sovereigntics which can ex-
ercise any power the river where the bridge 10
erected. virginia has authorized il, and Congress
| have acquiesccd in it. Congress have made no
| gulation declaring such structure unlawful, or
authorizing any judicial proceeding against it. If
| Congress- to whom the power IL granted TO rcgu-
late commerce. have acquiesced. how can the court,
to whom the power is not granted, undertake to
regulate it, and declare this bridge obstruction,
and the law of Virginia unconstitutional and void,
With all my respect for my brethren, think it is
nm error, aud had almost said grave one.
II il should be said that the compact between
Virginia and Kentucky makes the river free, inde-
| pendenty Of the Constitution, the answer is OBJ
vious. The compact does not deprive Virginia of
the power to regulate the police OF the river, TO
authorize bridges or piers or other structures in it.
Such compact between States has always been
construed TO mean nothing more than that the
river shall be free to the citizens subjects for
which the other party contracts as 1t Is to the ciu
subjects OF the State in which 1t is situated
Bot il this compact, any compact, should be
construed to prohibit the erection Of the bridge,
the proceeding should be to enforce the observance
of the compact. If erected in violation of COM
pact. it ia still not a nuisance, because there is
law prohibiting it. 1t would be breach Of con-
tract by the State, and the remedy in a very diff
ierent mode Of proceeding:
| This compact between Virginia and Kentucky,
| in relation TO the navigation of the Ohio. was
Of the articles OF agreement under which Virginia
consented that Kentucky should become n separate
State. Kentucky could not become separate State
| without the consent of Congress. But the act Of
Congress which gave that assent makes refer
ence whatever to the tarms oi agreement between
the States. il does not make the United Statcs n
party to them. nor guaranty their execution. II
simply declares its consent that the district of Ken
lucky should, the first Of June, 1892. become
State, according TO lite actual boundaries, on the
Stat. ls9, and contains allusion whatever, di-
| rect indirect, to the navigation Of the Ohio. II
leaves the compact as it was; that Is, compact
between the two Statcs, and nothing more, and TO
| b enforced by proceeding upon it,
Nor 10 there any difference in the rights Of navi-
CATION between the rivers and bays OF the Atlantic
| States md those of the West. The old and the
States in this respect stand upon equal footing
Il decided in this Court in the case Of Poi-
lard %. Hagnn. How 2l2; and that decision has
been sanctioned in subsequent cascs to which IL 10
| not necessary to refer.
The complainant, however, insists that the law
| of the United States for enrolling and licensing
coastipg vessels gives to tbcvesscl enrolled and
icensed the right to navigate the river free from
ob-tr that this law, therefore, by necessary
Implication forbids the erection Oft the bridge which
obstructs the navigation and consequently defines
| the rights Of the parties. And II n weasel is oh
sructcd, the law is violated, and the injured party
entitled to his remedy, and TO have the obstruction
removed. The Of Gibbons Ogden is relied
on to support this proposition.
This brings up the question, Whether the law Of
Virginia sanctionng the erection Of this bridge is
10 not ropugnsnt to the Constitution or laws of
the United States? Ia il repugnant to the ciausc OF
the Constitution which gives Congress the power
regulate commerce, or to any law passed under
iH Ifit is not, then the structure complained of.
being within the territory OF the State, and author
/ ixed by its Legislature, cannot be public nui-
ssncc or private nuisance in the eye Of the law.
/ Nor has nny one right TO complain Of II
| lawful obstruction in his way, nor to maintain n
suit at law or in equity for any Inconvenience or
loss he may sustain from il. Assuming that We.
may exercise jurisdiction on this ground. neither
the point nor the principles decided in Gibbons
Ogden have, in my judgment, any application to
the one before us. In that case the Legislature of
New York passed Law, granting TO certain per-
| sons the exclusive privilege of navigating all the
waters within the jurisdiction OF that State with
/ boats moved by fire or steam and authorizing tho
Chancellor OF the State 20 restrain by injunction
| any pcrson whatever from navigating tbcse wa
ters with boats OF that description. Tho complain
ant claimed under the grantees OF the monopoly,
and sought by his bill 10 restrain the respondents
| from navigating the waters embraced in it. And
| THE Court held. and undoubtedly correctly held.
| that the law OF the State was unconstitutional;
that vessol enrolled and licensed for the coasting
trade, under act of Congress. had right to ma
vigate any of the navigable waters OF the United
States, and that no State had right to forbid il.
There wac no question in that case as to the
thoriy Of court of the United States TO declare
obstruction in a river which State had auth Irizrd
to bo public nuisance, and treat IT ss an offence
against The United States. The waters ia question
wero navignble and free from impediments oi that
description, and the boats of the parties no claim
cd the exclusive privilege were daily passing over
them The only question in the case wss, whether
all vcsscls enrolled aud licensed by Congress had
pot he iyh tn mi he me
ss the vessels OF the monopolis,s The Court said
they had; that they had an equal right with the
complainant to use the nAvigable waters Of New
York.
But the Court do not say that nm obstruction
placed in the water which renders navigation in
convenient or hazardous is violation Of the act for
licensing and enrolling coasting vesses, or in con-
ict with it; did they say that this ACT Of Con-
gress confers the Court the power to adjudge IL
n nuisance and order il to be abated. There
no such question before The Court II was not in
the case, nor was the attention Of the Court in any
way called to il by the argument.
| Now in this case Virginia has passcd no l,w