Lynchburg Virginian. [volume] (Lynchburg [Va.]) 1829-185?, 1852-04-12

removal ofth bridge. One Of the coun-
sci for the bridge suggested that the OBJ
struction might be removed by making a
draw. and that matter was referred to an
Engineer. (McAlpine of N. W be re-
ported upon at future term Of the Court
Unless some plan is adopted, by which to
relieve the navigation of the Ohio, before
the first Of February next. the bridge must
be abated. The opinion of the Court was
delivered BY Justice Mclean, Chief JUS
tee fancy and Justice Daniel dissenting.
The reasons assigned by these gentle
men for differing with the majority ofthe
Court, are, to our mind, conclusive. They
both deny that the Supreme Court has
jurisdiction in the case. The Supreme
Court has original Jurisdiction, only "ln
cases affecting ambassadors, other public
ministers and consuls. and those in which
a State is a party" Judge Daniel argues
that the State of Pennsylvania is not
party to this suit. The term party. ap-
plies "only to persons sustaining direct
or real interest or right in any pending 1t
gation; an interest or right Immediately
affected or bound by the issues such h'-
CATION involves" The injury which
Pennsylvania alleges she has sustained,
is diminution of the profits Of her canals
and other works of internal improvement,
and thein,erest which she has in the suit Is
remote and contingent. But Judge Daniel
admits that the facts Of the case show, that
the freiehts of her canals, &c, have increas
ed snceth Wheeling Bridge was built. The
name of Pennsylvania was only used TO
give the Court Jurisdiction in the case; and
then "she and her interests are at once lost
sight of. and those of the steamboat own
ers and the local interests of Pltisburg a
lone are enforced" The whole argu-
ment Of the Court is based upon the in
jury inflicted upon these interests.
If the Wheeeling Bridge is a public nui-
sance, it must be such by reason Of some
law Of the United States, or Of the State
of Virginia; for these nrc the only sover-
eighties, exercising any power over the
river, where the Bridge is built. Before
the adoption of the Constitution of tie u.
States, Virginia had sole authority over
the River at Wheeling. and she has dele
gated to Congress the power Of regulating
commerce. Congress have the right to
declare such erections unlaw ful, but they
have not done so; no such law has been
passed and the erection Of this Bridge can
not therefore be an offence against the U.
States.
1t is not an offence against the State Of
Virginia. for i, has expressly authorized
ts erection. The common law is not the
rule OF decision in the United States Court,
except while sitting in a particular State
which has adopted the common law, and
then it must be governed by the statutes
of that State. The Court has thus yirtu-
aily administered law which does not
exist. and encroaches upon the powers Of
the Legislature.
But the complainants CHIN jurisdiction
upon the ground that the erection Of this
Bridge is violdtion ofihe law of the U.
States, for controlling and licensing coasting
vessels. This act however has no appli-
cation to distinctions OF the sort COM
planned Of. The Superior Court has al
ready decided that an obstruction created
by dam does not come within this act,
and that created by bridge would seem
to rest upon the same grounds. And I'M
til further legislation, neither will he an
against law
The compact between Virginia ard
Kentucky makes the river Ohio, free To
all the citizens of TIE U, S. Assuming that
the erection ollhe Wheeling bridge, is a
violation Of that compact, tina. does not
make i, a NUISANCE. and the remedy would
be very different from that which has been
adopted. The assertion. that Congress
by conserving to the admission of Ken
lucky as State. have regulated the navi.
CATION of the river, and have ordained that
such bridges shall be thrown across j,
the owners ola few steamboats, viii rcr.
NIT. is a r1erc assertion.
1t seems to have been .,.umed both IN
the discussion Of tn. ease and !, the ar
sameh' OF 'he court. that commerce could
only De successfully prosecuted by the
channels of rivers; and privileges are
claimed for steamboats,. paramount to
every other commercial vehicle. The SUI
periority Of Railroads, in point Of speed
and rapidity, and their independence of
wind and depth of. water, have not been
taken into consideration. The commits
sioner appointed by the Court, to ascertain
andreport whether the bridge was an
obstruction to navi CATION; brought in a
mass oftestinony. showing the importance
Of steamboat navigation, but rejected all
evidence offered by tue defendants, show
ing the importance and usefulness Of The
bridge. Both of the Judges who dissent
ed from the opinion of the Court; agree
that the question Of nuisance. or no nui-
sancc. is not question for the Court; but
aqnes'ion Of jact, 10 he decided by jury:
and are Of opinion. that upon The facts OF
the ease. granting the jurisdiction of the
Court, jury would not be justified in
finding a verdict for the complainan,s.-
Their arguments are conclusive that from