New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-09-22
Nem- York, September 81, 1873


d political question.
Tha, important estuary is constuted Of two streams
which rise among the Adirondack Mountains, west
ward Of Lake Champain and Lake George, and pursu
ing oonverging courses unite ct Warren II feels the
tide frst a, Waterford, and thence, although 1t If a
reptile stream il in capable Of navigation for vessels
Of very light draught until il passes Undertook At
Hwdson and thence onward il bears ships Of large bur-
Gen II flows within the territorial jurisdiction Of New
York from is sources it, discharge into the Bay Of
wew-York The entire nevigable par Of tire river IL
therefore at once and eqsaly highway Of the State
Of New-York and a highway of the United States.
ALBANY is about eleven miles below the point where
navigation begins and although that place has free
channel and capacious harbor yet there contrac-
lions and SHOALS which impair the navigation just
above az well as just below that city.
Riparian owners have certain privileges or
rights Of use in rivers, such a. those OF access,
bathing and fixing. The whole PabIic OF the
State through which rivers flow, have rights u
navigate them upward, downward and cr"sswise The
whole public Of Tie United States have rights to use
nayipable rivers which flow between OF through sew
oral States or connect with the ocean for social inter
sourse postal communication commerce and defense.
Some Of these rights lesser dignity and must be
exercised in subordinaton to others Of higher carac-
portance nay be- ear nevertheless be used only in such
manner as will admit Of the due enjoyment Of the
nights Of all other persons, well the preservation
Of the public order and the promotion OF the general
welfare. All these rights and privileges are not i'm
properly called franchises or freedoms which il is easily
seen are necessarily relative and conventional They
are because human nature IL 20 constituted that
every personal right privilege atteined becomes in
SANITY basis Of some duty or obligation TO others
Unreg ulated rights, privileges franchises or free
dons IN society, constitute anarchy. To regu-
hte the diversified rights of in navigable
rivers which have described, Of course belongs 10
The sovereign power Ia which the rivers appertan,
and IL defined by publicsts to be act Of poiice
economy or policy and 20 II falls within that class Of
political functions which always and in all States de-
volvc on the Legislative department.
The Legislative department Of the State Of New
fetk has authorized the erection Of draw bridge
the Hudson River at Albany. What is COM
planned Of now, is not any departure from viola
ton Of this law political regulation Of the State of
New-York but the execution of il in conformity with
The authority conferred by the Legislature. The
Court therefore, in deciding whether il will suffer the
bridge to be erected must necessarily consider and de-
temine exactly the same political questions which
the Legislature Of New-Nork have already considered
and determined when they enacted the law, and, in
effect, mpst affirm or dsafiirm the law.
BUt the Judicial function generally is, not to make
sws or even to ufiinn disaffirn, but only 90
p-und and administer them. II there be doubt
whether have Correctly stated the nature of the
question involved in this case, that doubt viii dsap-
pear &c ref,reue. to the opinion delivered by his
Honor Mr. Justice Nelson. the presiding Judge of
this Court, when the preliminary injunction was
granted lin my judgment fle saysl the real and
turning point the l., whether or not, regard
ing the probable travel and transportation across the
bridge by railroad cars ard az common highway, ana
also the business dep ndng upon the free navigation
Of the river VI and down at this place Albany, the
draw or draws VII furnish reasonable means Ia pre-
vent any substantial obstacle 20 such naygation that
H. nsvcatsa tree trorn beng seriously impaired"
~ An fferu tss
b. involved IN tie Hal elaboration requiring the most
deliberate Consideration; and that Is, now tar the
business II corTner~ upoa TIE river. Of the country
these great ratHrp high ways for the convenience OF
trade a nd iasrcuGr.e i 10 yield to the convenience
and accOmmOsston Of te convey ance 81 passengers,
tie ehe and primary business and sse OF railroads
His Honor remarks once more: The principles
proper to BE- applied ~ this case will b., generally
steskpg, apple he o. every other instance Of brdg-
ing this nver; and It i apparent that they must 80
regulate and control the erection - tiat, however
multiplied The s1igences and business necessities
OF the country nay demand The reasonably unOb-
structed navigation e the river - stll maintained.
Certainly the l. gls,sture oi New-lOrk could not
s0thorze the erection oi the projected bridge with
ont determining the questions and settling the princi-
pies tiIus pr0p"crded.
Had stranger fallen into the chamber where the
commissioner appointed by your Honnrs 50 indus.
trousy engaged IN taking tie proofs in this case ana
heard the inquiries made there concerning the effects
of drawiri1scs Oh navigation generally, the char
acter of the channel OF the Hudson River at Albany,
on the arrangement OF the basins piers, wharyes,
decks ard ferries there, and the forms ant meas
of traffic aud passage upon and across the river,
he would naturally have supposed that the investiga
ton had been instituted either by the & mmittee ON
Roads aud Bridges of the Assembly Of New-York, or
by the Committee CCmG cree, or the Committee ON
Naval Afir OF the House Of Representatives of the
United States.
THIS Court, now sitting in equity NAV, perhaps
with SEINE apply the machinery OF Chaneery
practice 10 the examination d tf political problems
which this ease presents. But every Circuit Court
OF the State If Ntw-York, sitting as court Of law
con.essedly he's equal authority with this tribunal la
examine tie sane problems. Can anything be con-
ceved which would be mere unusual and strange tnaa
The submitting of such examination to jury If
twelve GOOD and lawful men
Ii u.ust. indeed perhaps, sometimes occnr that the
courts of Justice shall find i, Necessary 90 consider and
determine the constitutional power Il our legislative
b(ucs 20 enact some of the laws which Nre prumul-
rated Nv their AUTHORITY Yet every intervention of
the Judiciary into the political or legislative depart
nleuts Of te country necessarily pTcvokes roiaat on
aud I, trisal Incompatible with thc desired narnouy
Of orr system Of government. ' am sure, therefore,
that enlightened judges viii agree always with wise
sfatsmen in taking that such intervention shall
seldom az possible.
Moreover, 1 tl.LA tAat | see an incongruity ap-
preaching 20 ncowpethiiiy between the Legal form Ot
fhis ding ard the object Ia b. attained. The
osictt is set aside ard overthrow the law Of the
Sat ~ Ncw-York which authorizes the erection Of
bridge oven the Hudson River az Albany. The form
efthe proceeding is a bill in equity 20 proven; the
constructor Of TIE bridge 80 authorized, on the
ground ;hot ii would be p@hhc nuisance. lac mere
word Aaisegce is al cpitlet, Stigma, which eSctes
10 paf-c4te eoa'cssa, sud diseEs,. A nuisance is
anything that vorketh hurt, Inconvenience or dam
age" Public nusancos or common nuisances are
sch as affect the pnbhc and are annyyanccs t. oil the
Krgs subjects They therefore fan into the class Of
"PubAc wrongs, crimes or insdeneanors, are
"the subjects of indictment and may BE- lawfully
rbrted by the hard Of The privce citizen, ne can