New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-09-22

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and ,pcured quarters for bis pirsi'cal band ssn o
tr Executive paince he ins, gated enente between
item and the lRperal police, ard charged Mon'sznma
with bad faith in regard TO that trapsaclor. lie eis-
ayowed and oHered 20 prove his innocence Cprtez
feiered ~ suspend his opinion and M rerpon cooly
suggested 10 the Emperor that he should with raw
from bis palace bui with all hs state T. very comfort
able apartments in 'i'c spani'n csrrson' 90 reIhn
there oIly until his rnooence should b. Established
The urinary prince, in blank amaLement, rephet:
IL an no; one u that cass q persons whom they
put TITO prison" The trial ~ The state 81 New
York for The misdenieanor q committing nui-'sn'~
IN TIE preat river Of which shc II justly proud Ia
scarcely loss hod OF even hes anonaiors tlnn the
committing Of the hereditary sovereign {" Mexico into
close custody what the lawyers wouid call mesne
rroresy on a charge for insteatiug net. IN view u
tLese considerations / venture to hop for candid
if not even favorable hearing Of my reasons for be-
Ee,ing ;ha; this Cont can exercise no rghtful us-
dction in the present case.
Tbe complain, IL that the projected bridge viii in
evably move TO be public nuisance if II shall be
erected II cannot be nuisance If il be authorized
by law.
bielwav of the United States and Of the State Of
NewYik all sovereignty over It resides in either the
one or the other OF both Of these pOwers Those
sovercigrs cOusttutionaly know Of two codes-the
one consulting Of constitutional or organic law and
statutory law. the other the English common law.
The Constitution uf kew-Yufk permits the erection
Of bridge over .he Hudson River at Albany, if Il
shall b. authorized by statute Of the Stat enacted
by the grature. The Legislature has enacted Just
such a statute The Constitution of New-York sub
vets ard and excludes the common law when
ever il conflicts with statutes thus enacted. The pro-
ecred bridge is, therefore, manifesty authorized by
the laws Of New York
The Constitution Of the United States alec acknowl-
edges the common law Of England in mea ured
degree. BIT has been settled since the beginning Of
the Federal Government; that the Courts Of the United
States ms such have no common-law jurisdiction,
ceIt what is specially conferred upon them by some
act Of Congress. There il 40 act Of Congress which
authorizes tbis Court or any other Federal Court to
administer the English common law Of nuisance.
II. is indeed, true that the Circuit Courts Of the
United States when sitting within State sometimes
adm mister Il common law But il is only the common
law they ind there adopted and established by the con-
stitutiOn Of the State by the laws of the Statenot
aIy cdmncn law Of its proper force and vigoT.
The Circuit Courts when administering the common
law, even in this guarded form, do so by virtue and
under the direction Of that act Cf Congress which de
cars that the laws Of the States respectively shall be
the rule Of decision in the Courts Cf the United States
when sitting within the States. II they not ncon
sistenf with the Constitution or laws OF treaties u the
United States.
Tie High Court Of Chancery in England nteryencs
there IA administer the law of nuisance when
the remedies which courts Of law have power 10 give
maiiestly inadequate. The Constitution Of the
United States cOniers equity jurisdiction on the Circuit
Courts Of the United States within certain limit atoms.
and directs that in the absence Of other rules their
practice and course Of proceeding shall conform to
those Of the High Court Of Chancery in England But
Ills provision of the Constitution does not establish
the common law Of England municipal code OF the
Unitec States. Even in England, the High Court of
ChGnccry can only assume jurisdiction to abate or
prevent nuisance on the ground that the thing com
planned Of IL made a nuisance by positive law of the
realm and never when the thing complained Of is au-
thorzed by tie laws Of the Kingdom.
This Court therefore derives Jurisdiction III this
case from TIE common law Of England.
II remains to inquire whether II derives such lu
risdctiOn from the Constitution OF the United States
or any act Of Congress.
Counsel following commentators and even Courts
Themselves, often speak vaguely of constitutional III
hbtOrs of distinctions of navIgable natural high
ways and Of constitutional GUARANTEES of free nayia
ton upon them. 1t therefore to be necessary
for now to observe that the Constitution of the
United States Is entirely silent on these very pertinent
and important subjects II, indeed, such nhibitions
aud guarantees at all exist il is certain they must he
found lurking somewhere under some portion of the
text cf that instrument.
They are supposed to be discovered living concealed
nndcr the words Congress shall have power to regu
late commerce among the States, and with foreign ma
tons. Tie argument is plausible enough because 1t
is admitted that the grant of expressed power im-
plies also the grant Of power to use appropriate and
effective ans for its exercise.
Nevertheless, If We allow the most comprehensive
effect to the power of Congress to regulate com
nerce, vet think il cannot be reasonably claimed
that tins power, while il lies all unexercised by
Congress and absolutely Dormant docs of it, own
iilherug force, establish municipal system for the
III, seryation. maintenance and regulation of high
WAYS fer the uses Of commerce. and at the
SANE time confde 10 the Circuit Courts OF
the United States unreguated and discretionary
power TO administer this system in whatever way,
by wi ateyer form of proceeding, legal equit-
able ara with whatever remedies pains aud penalties
they may choose Ia adopt II would be asserted with
even less show of reason, that the commercial power.
while lying thus absolutely unexercised and dormant by
mere force implication renders drawbrdges Of every
form and character, aud under all conditions and cir
CunstaLCes, on all uayig0blc natural highways,
lawful and converts them al into odioTa and disgust
Ing purprts tures obnoxious 10 abatement by prl
waite revenge, and at the time invests the Circuit
Courts ofte United States with powerto abate them by
indictment and execution in the forms ot the common
law ana by bill in equity aud perpetual Injunction,
pursuing the practice and course of proceedings
tonarily used in the High Court Of Chancery IN En-
gland.
Buultlessly there were some such bridges standing
when tie Constitution of the United States was
adopted ana We know that they have been abundant
" multiplied siuce that time. Are all OF these draw
bridges everywhere made ruSauces by tie mere force
of the comWercial power of Congress without its
exercise May every of his sheer caprice
hcw them down, and justify the act by holding
ny, in the presence of the Court, the organic law Of
the kcderal compact
Ii, now you renounce the claim that the commercial
power, while remaining unauthorized and dormant, has
tis sweopinely destructive effect, and yet Ven claim
that renders the projected bridge Albany a nui-
sALce, tlen how, ana by what definitions and princi
pies, shall we discriminate between the bridges which
thus made noNous, and those which remain con-
less, dly lawful!
Ii seems clear that the Federal power is altogether
imperative until il Is exercised by Congress. II is
equally clear that Congress il either par
italy fully Congress has partially exercised Il ia
passing the act which directs the licensing If coastng
IL this act especially which II is insisted
rendtIs the pr, Jected bn.ge at Albany unlawful. 1t
is customary i'll argument to SPEAK of this act as
aboundrg in guarantees of absolute freedom of navi-
CATION, and AIMED all sides hike wHr-chari0t with
scytLes ioT cutting down distractions. Al such Ian.
NtlV l.r al.