New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-11-23

lied 4 -. n.
uzed as being legally bull. by the same a.tnorny'
was impossible to call il nuisance N Hlrg.n.a
mean = - Nuisance" il the legal sense oil ihnu "A
"a structure without authority oil is", W.
then e. my brother said 80 well yest-i'a!
deal better than We led it-COngrese has pas-eo no
law making il nuisance; the Courts OF the 1Iiseu
States have no common law jurisdiction under "ilcn
TO coli il nuisance; Virginia Instead ci 'al'".
nuisance declared II legal and beneficial sur
Then in behalf Of the bridge asked, triumPhanuy ~
thought. Where lie the authority OF the lnled
States through lis Courts, to sbsie, upon the groHn.
# uu'saucel' Your Honor, the presiding JUICE as
Of the majority, listened to ths vlew' ou' :ou
did not think il souno, and l cannot he'p th.nhlhS
that will be the fate of the argument a. repeated
yesterday. There is not much in ], now, al AZ e'e9ts,
whhteyer there might have been before. Nov, what
the decree in that instance do not take up the
ressoning-whst was the opinion 81 the N"uil
bridge so,re % odd feet above the ordinary water
mark--Dr | believe mUre-I forget the exact eeva-
ton. There were 80 steamboats, navigating that
river; and never there any ordinary stage OF the
va,ei or any oxiTaord uary stage Oh the "atr ues-
wien some uncommon avalanche inundated Il'e "hoIe
country when the whole of those 80 vessels, except
even could rot have passed under the bridge. Inc
difficulty Of passing under the bridge, on the part
seven, vas tie elevation OF then chniheys, nvtnlns
else. Now met the obstruction OF these seven
vessels consequent upon that eItr ,ordnary elevation
% their mneys bv saying hr-t, tn II the elevation
las wholly unnecessarily did not increase the speed
Of the boat ST ALL or, 70 speak more accurately H. a.
tie boat was actually constructed with that chimney.
such chimney might hsy- increased the speed OF the
boat there mechanical appliances perfectly well
Known which oonid have accomplished the same speed
with chimney Of half the elevation speed being the
result Of the most conn ete and absolute combustion
that they could accomplish Of fuel and that ~ SAID
could have been Effected by means OF blast, or
blower wholly irrespective Of the length Of the chm
ney: Ind we had n sreIt many engineers WHO s~Ore
tins could have bel done Those seven boats were
If modern origin. The trade carried on by vessels
I.n,. I...t 4 Dor Ht 20
at all TIRES. But said, moreover, that If the ele,
yaed chimney was necessary there were mechanical
cpLiriv by which the pipes or chimneys could be
lowered so h 70 enable them 10 pass the bridge.
We'll, then az your HOnors SCI, {" come againto the
proposition Of absolute iDcompaibi,y, there was
for the trade gong on 10 80 vessels, less
seven. There was lncompa' ibiity, because there
was evidence in that case and II matter of evil
drce that the trade could not have been carried On
altogether, so far a. the amount OF trade was con-
concerned " vessel WHEN would receive no Impedl
NIT irom the bridge. But the Court said and your
Hor concurred il that opinion, that Congress not
upon The ground that Pennsylvania had made canals
and bridges your Honors sill ber 10 nluf not upon
tie ground that she had constructed raroa Is, ana
bad an interest 10 promoting tie .de upon her canals
and upon her railroads but that Congress, IN the ex
ccuiion Of q commercial power, had, by virtue oil
the act of 1898 alone reg uated the CATION upon
lat river that that brtge an obtIuct on 70 the
navigation authoriz by that regulation, and an OBJ
s,ructiun which, in contemplation oi lsw bee 'ine
with reference Ia nj who were interested In keeping
open the freedom of vgation nuisance, aud must
come down.
WHY, that is usurpation may il please your Honors
If il be true that the Courts of the United states have
no jurisdiction over questions OF nuisance because
the have no common law power because there lie no
law Of the Upited States declaring it nuisance, or
State law making 1t q Nuisance.
You cannot get rid Of that decision by saying it vas
other dc,ait was not called for by the exigencies
of the cass-there could be freedom or slavery with
ont It. ard the question Of freedom slavery IN the
particular did rot involve that question whatever
was said upon that subject ezra judicial. The
the Court. II was not only not EXTRA judiciailt was
the very question The Court could not move al inch
toward the judgment which they had 10 pronounce,
without p ssing upon tn questlon-nusance or no
nuisance. Well, then, when they held it to be uui-
sance, there being statute making it nuisance, in
terms, passed by the Unted States having no com
mon law jurisdiction over the offense Of nuisance
10 ing no status g Virginia making it m sance-
but on the contrary statute declaring it to be illegal
s,ru ture-,he Court must have decd.d this: that he
who by bridge rrupts that very freedom Of navl
CATION which license obtained under the act of 1893
Secures to HIM who holds it, becomes guilty Of oense
Of nuisance. As far remedies are concerned, the
Courts Of the United States, by indictment, cannot
punish but that is an entirely distinct inquiry But
il is principle Of every well regulated Government
TINT there are no rights under ts laws for which there
ore not adequlte remedies-indvi!s, fishts-and as
every well,orsiituie1 JUDICIARY must have power
extensive with the whole range OF rights growing
out Of the common or the statutory law; he vino
cones into the Courts Of the United ates, showing
FIRST that he has right and secondly, that that right
has been destroyed by that which in intendment OF
law Is nuissnce, ana he is without remedy ahess he
can recover by suit at law for damages for its effect
upon him, unless be have it restrained abated
by virtue of fhe equity jurisdiction of the tribunal to
which he applies; and the Constitution of the Coted
States IN clothing the Courts OF the United States
with jurisdction says that among other subjects of
their jurisdiction shsu be all cases arising under the
Cd slitution and laws of the United States. When
ever, Therefore, by reason OF the character Of the
question: snor appears in the Courts of the United
States showing that he has right under the Const-
tuition Of the United States, or under law passed in
pursuance Of the Constitution 10 the enjoyment Of any
privilege be presents case precisely such a. the
Constitution III terms gives TO the Judiciary OF the
United States Ia dispose Of How did the Court de-
eide it 7 mention il now, and shall use it by and
by in arguing the fact. There were :wo argu nents
before your Honors. One upon the question of jdris-
dicticn. l think that is 9th Of Howard. You
did not in words maintain that You had jurisdiction,
but you passed order at the time when that argu-
mert was mace, directing additional testimony - Ne
taken and appointing Chancellor Nalworth Com
10 take the evidence. His report came IN,
and il was before tie Court wheD the argued,
reported in 18th Howard. He decided tnen IN his
opiuvn a. Commissioner, fOaLded upon an examna-
ton Of the whole OF the evidence, that the bridge was
obstruction 10 seven Of the bUats-ony seven that
be thought there was danger in lowering the chin
beys aId be thought i, problematica whether the OBJ
jet attained by the hight of the chimney could be OBJ
tanned by any other mode, aud concluded tht the
brcge would be obstruction 10 the free navigation
If tho nver, uress it elevated 10 feet above
the water for clear level OF $40 teet-that is,
makug q practical draw Of 800 eet. In the
conclusion # the opinion Of tue Court which
maintained the Judgment of Mr. Chancellor Wal
worth with slight variance-your Hon
or declared that the bridge should be elevated 10
inst, al u 100, above the point indie tted for
clear level tue river of 800 feet. Mr.. Justice
Lean speaking for the Court and speaking for your
Horror Of TIE Court VINO concurei 10 that opin-
ion sad aud said what | certainly am not here to
del y has my colleague denied ii that tue power
If the United States to make regu ia relation 20
navig gable waters 20 be found il the States was not