Wheeling daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1852-1859, 1852-09-13

stitutonal law of Congress yet, in the absence of
stands unimpaired unless the Constitution nullihes
II. But the Constitution has not regulated com
merce and navigation, but committed them 70 inc
legislation of Congress. The law of Virginia,
therefore, does not come into collision with the
Constitution, and there being no existing law OF
Congress, with which it could come in coilisioh'
it is itself, therefore supreme law.
What is nuisance, all agree, the law OF the lana
must determine. The Wheeling Bridge, then, mas
been adiudged nuisance, not only in the absence
of any law making it so but in the very lace OF a
constitutional law of State.
There are two descriptions of nuisances, ana
they may be termed natural. and .accidentai. "a
natural nuisance is that whichis,sln Itself. noH-
ious and iniurious,-as filthy pool, an offensive
carcass, the fumes of a brew-honse, the SaPora of
q glass factory, and the like. n - EE.,
An accidental nuisance is where two things,
neither of them being noxious, but both being pos
itvely beneficial, come into Incompatible .Ieia-
tons and one has to yield to the other. Which
shall yield, and how much, positive law must de-
termine and, if the law be in favor OF this one,
that one is the nuisance. u
These two kinds of nuisances differ from each
other in the economics of law, somewhat as matd
in Sc and mala prohibita differ from each other IN
the ethics of the law
The Wheeling bridge and the boats passing I'M
der it. illustrate the character of purely acciden
tai nuisance neither is noXous in ITSELF but poth
beneficial. Which, therefore, shall yieid 70 Inc
other, desistive law must determine But Tie pridse
is not only positively beneficial and free OF any noS
ious property, but it is of public use and beneht
it constitutes highway dedicated TO the puohc OF
the hole Union. And yet the court has dealt with
it as though it were natural nuisance; not only
of no use to the public, but of no nse to any pm
vate men as though it were positively detrimental
to the public. Why, sir it requires positive law TO
determine even what shall be deemed natural
nuisance. ..n.+. '-+-l
But the court has decreed the statement of the
x1,f,r, " Mt
sisting that decree Except an act of Congress as
senting to its continuance shall induce the court to
reverse its decree, the bridge must go down. Ana
the question of present interest is what Congress
can do in relation to the matter presume IL VIII
hardly be questioned that if the consent of Con.
gress given at first, would have made it lawful
bridge heretofore, its consent given now, Will make
it lawful bridge hereafter The decree OF the
court is not Incompatible with this props sltion-
Whatever may have been the opinions and rea-
soning of judges, the decree is the only act OF the
court and that decree is not that Congress could
not authorize the erection of such bridge, butthat
the General Assembly of Virginia could not
Let us then consider somewhat further the pow
ers of Congress and for that purpose let us exam
inc the nature of the subject. .
| concede the navigable waters of the United
States to be " common highways" and "tree' to
| all the people of the United States. But what Is
meant by common highway! 1t is a highway
| that section of the country can monopollZe
from the use of which, none can be excluded
| And what is meant by "free" rver? Simply
| river, whose navigation is exempt from tolls,
taxes, or tribute, These the very words of the
ordinance of 1877. That ordinance did not mean
to enhance the right in free navgatian, to give
new dignity and prominence over all other rights
| Il at might incidentally clash with it; it simply
meant to establish the right in the Northwest Ter
rtory. Nor did the Constitution, coming after the
ordinance, do any more than give universally TO
the right throug bout the Union. .....,...
Nor in dwelling upon that peculiar right OF III
N States which w the anteceleut of the
committed to the common government OF the States,
through its power to regulate commerce am. ng the
States, did mean that the Constitution had placed
| it above all other commercial and social interests,
had put beyond legislative control, and made it
superior to all reasonable and just accommodation
with other interests that might incidentally come
into Incompatible relations with it. only meant
that the Constitution had reclaimed it from lis wild
state, and given to it the form and guarantees and
mode of existence of an internal domestic night
And surely this was doing great deal for it. 1t
would have been going too far to have gwen ii
prominence and prerogatlve over other great in
tereSts TO have placedi beyond the control OF leg
islative regulation. IS. -G.
That riparian right, subject to treaty regulations
under the law of nations, International right,
has become public civil right under our system,
subject to legislative regimen. 1t is no longer q
treaty right, but the common right of all the peo-
pie of the Union. 1t is committed to their common
Government, simply on account OF the conditions
under which it is held and enjoined; and not that
IL Is nelu 10 De n pIeelulUent anu
That Congress can make such regulations OF COM
merce will be compatible with the continuance
of the w heeling Bridge is so evident to my mind,
that am scarce sensible of an impeachment neces-
sary to be overcome by argument. 1t miscon-
ception of the whole case, to assume that one por-
ton of the people are interested one side OF the
| controversy, and another on the other side, aid
that the Government is the arblter between them.
| Both interests appertain to all the people OF the
| Union, and the Government, in whatever branch
| &c he rap taft of all. pubIc nuisance
that which is obnoxious to the public. And tosay
| that one public interest is n nuisance to another
public interest, without first ascertaining which is
worth most to the public, is an absurdity. And 1t
| is just because the determination OF nuisance de-
| ponds upon the comparison of one interest with
another that it Isl and ought to be, left to egisa
| tive authority to determine what shall be nui-
sance; for the progress of science and arts is conti
ually changing the relative value of things A
court must look to the law it is, and enforce it
right or wrong; the legislature looks to eXpedency,
and ina kes the law what it should be. The court
cannot rise above the law, except it can plant it
self upon the Constitution; but, as has already been
shown, the Constitution has not said what Shall be
the projection of pier into the river, what shall
be the privileges of fisheries, what the privileges
of bridges, (and bridges are as old as navigation,
what their elevation, what the width OF draws,
what the privileges Of canals agricultural irriga-
ton using the water of the river. All these things
| are as old as navigation. The Constitution has
specified nothing in this behalf 1t has, therefore,
left that to legislative regulation. If not it has
l interdced them, and navigation is entitled to the
whole surface OF the river, from bank to bank, the
whole substance and body of the water, and as
much Roadway as the highest mast or chimney may
i at any time, now or hereafter demand. H.
The Constitution in leaving some of these inter-
ests TO the States, and committing to the COM
mon government of the States, did not mean to
change their relative value And congress as rep
resenting the same public that all the State Legis
latures represent, must have just regard to their
| relative value. 0"t .l" f'ss
/ But is 1t just TO the public that the Wheeling
bridge should remain as it stands? That question
l have left to others to argue. Did time permit, 1
should takegreat pleasure in discussing it.. think
l understand the scientific principles involved in
L high and low smoke stacks, and have taken due
pans TO collect practical information on that sub