Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1868-03-04

S, vs.. the lessees of the Alexandria Canal, was
again before the Criminal Court, Judge Cart
ter, in Washington yesterday and occupied the
entire session.
Gen. Wells continued his argument begun
yesterday, sketching the history OF the Chesa-
peake and Ohio canal, Of the legislation Of
Congress, and of Maryland and Virginia in re
lation to the junction of this aqueduct and the
Alexandria canal with the Chesapeake and
Ohio canal, contending that all these acts
| this system OF internal navigation, and that
Congress had expressly recognized and author
lied the aqueduct at its present location.
Hon. Reverdy johnson said.it would save
time if defendants now moved the court to in.
struct the Jury that they could under no cir
cumstances find verdict OF guilty. The Court
was bound to notice judicially the statutes of
Congress, and by reference thereto it would be
found that Congress chartered the Alexandria
Canal Company, and afterwards recognized
their right to make the aqueduct, and appro-
priated, in 1882, 100000, and in 1887, $500,
! 900, in aid of building the aqueduct, and in
| 1914 passed an act for the protection OF the
aqueduct by providing that any person injur-
| ing it should be liable to Indictment. Looking
at these statutes, it was impossible not to see
that this structure, now alleged to be a nu-
sance, was constructed under warrant OF legisla-
tive authority Now, after the acquiescence
of years, Georgetown comes il and asks the
Court to tell the jury that Congress has author
lied the defendants to perpetrate crime upon
the public. Congress, under the eighth artl-
Gle, had power to legislate as it did III the case
in question. MIR. Johnson quoted New orll
case, Gibbons vs.. Ogden in relation to the
| ~ no l11Ic VIVIAN onH a COL
brated Wheeling bridge case, as bearing upon
the question at issue 1t was decided in the
first of these cases that the right to regulate
commerce applies as we'll to domestic as to for
! eien commerce.
The Court suggested that the prosecution
did not deny the right of Congress to authorize
| the building of an aqueduct over the Potomac,
| but rested on the ground that the canal COM
pany had not pursued the authority granted
| by Congress, but had gone outside OF that act
| in making the structure complained OF.
| Mr. Merrick said that the ground on which
| the prosecution rested was contained IN the
| following extract from the opinion Of Mr. Jus
tice Barbour, in the case Of Georgetown VS..
| Alexandria Canal Company, in 18th Peters :
! ''If Congress has given the canal company
power to construct the aqueduct, and IN the
| construction that company has not exceeded
the authority given them, either in the thing
| done or in the manner of doing it, so as to pro-
duce the least injury or Inconvenience practical
| bic, consistently with the execution OF the
| work, it would be difficult, as a legal PROPOSE
| ton, to predicate of such a work that it was
| unlawful, or that it was nuisance.
The prosecution held that the converse was
also true.
Mr.. johnson contended that the act Of 1890
I, 81 tba ohoJn Of ha nj %
at which to build the aqueduct, and lent its
pecuniary aid to complete it at the place where
it now stands, and made it penal, in 1914, to
destroy or injure the aqueduct The case was
not here for the first time. Georgetown strove
| to try the right of the aqueduct to cross the
| river; and though that case went off because
the corporation had no right to come in court
in that form of action, but Mr.. Justice Thomp-
| son, who delivered the opinion of the court,
pronounced that the power to construct the
auueduct had been granted the canal Company,
and that they had exercised the right in accord
ance with that power. He closed by paying a
compliment to the enterprise Of Georgetown
but contended ttat Congress could not intend
| to give her advantages which had been denied
| to her by nature.
Mr. Brent argued that the case in 18th Peters
did not in any degree determine the question
now at issue. The Corporation Of Georgetown,
in that case, undertook to test this right, and
| all that the Supreme Court decided was that
| no corporate rights being violated, the corpor-
| alton had no right to sue, the remedy being
left to the private parties injured. He did not
| deny the right Of Congress to authorize the
building of this aqueduct, but contended that
| Congress had granted no right to locate the
auueduct at it's present position. Congress
could allow the Potomac to be damned below
! Alexandria, and the three cities to be made a
bowling wilderness, but before courts admitted
| that Congress intended to grant such power
| they would require very clear language Such
| clear language was used in the act lcgalizlng
the Wheeling bridge. Certainly a collateral act
appropriating money Or restraining want0n IN
| Jury to the aqueduct was not such clear de-
caration of legislative sanction to this nuisance,
as to be conclusive upon the judgment Of any
court. The universal rule was that the grantee
of franchise in obstruction of navigation
must exercise that grant Of power so as to do
the least possible injury to navigation.
After suggestion of the Court as to the
| propriety of combining the discussion to the
| fourth clause Of the Indictment, which charges
| that the defendants have made an additional
structure in excess Of the powers granted by
Congress-
Mr.. Merrick said he would prefer to discuss
| all the counts. He argued that the act OF
Congress gave the canal company no unlimited
choice of site for the aqueduct. There must
| be some limit, and that limit must be found in
| the idea that public improvements should &C
commodate each ether and the aqueduct
should be so constructed as to 90 as little injury
to navigation as possible. The Court could
not determine this fact, and it must be decided
by jury, and the motion OF Mr.. johnson was
a. an end.
At the close of Mr. Ms argument, the
court adjourned - Wash. Rep.
EMANCIPATION.