Front Page Titles (by Subject) SUPREME COURT OF UNITED STATES, January Term, 1839. } SPOONER vs. M'CONNELL, et, al. - The Shorter Works and Pamphlets of Lysander Spooner vol. I (1834-1861)
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SUPREME COURT OF UNITED STATES, January Term, 1839. } SPOONER vs. M’CONNELL, et, al. - Lysander Spooner, The Shorter Works and Pamphlets of Lysander Spooner vol. I (1834-1861) 
The Shorter Works and Pamphlets of Lysander Spooner vol. I (1834-1861) (Indianapolis: Liberty Fund, 2010).
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SUPREME COURT OF UNITED STATES, January Term, 1839. }
COPY OF BILL AND INJUNCTION.
To the Honorable Judges of the Circuit Court of the United States, within and for the Seventh Circuit, and District of Ohio, sitting in Chancery:—
Your orator, Lysander Spooner, a citizen and resident of the State of Massachusetts, represents that he is the proprietor of the following described tracts or parcels of land, to wit:—A part of the northeast fractional quarter of section seven, township five, range nine east, upon the south side of the Maumee river, and bounding thereon, consisting of eighty acres more or less;—also of island numbered two in said river, opposite the tract above mentioned, containing two and four-fifths acres more or less; both of the said tracts being at the Head of the Rapids above the Maumee bay, and on what are usually called the Grand Rapids of said river, in the county of Wood and state of Ohio.
He further represents that from partial personal observation, and from the information of credible persons, he verily believes that said river is navigable, during a large part of the year, from the said Head of the Rapids above mentioned, upwards continuously and without interruption for a distance of about one hundred and twenty miles to Fort Wayne in the state of Indiana—that within the past year there has been a steamboat plying on said river throughout the whole distance referred to—that a number of keel boats carrying from fifteen to twenty-five tons burden have been in like manner employed—that said river was open and navigable as early as the 15th day of March in the spring of eighteen hundred and thirty-seven; and your orator is informed and believes that during the year 1837 the navigation of that part of the river referred to, was not prevented, or very materially obstructed by low water, for a period of more than eight or ten weeks—that the river between the Head of the Rapids and Fort Wayne is, and from the earliest settlement of the country has been navigated as the common and principal thoroughfare for the conveyance of produce, merchandize and other articles of transportation between the points mentioned.
Said Rapids extend down the river from the said Head of the Rapids towards the Maumee bay, a distance of about sixteen miles, in falls at short intervals;—around these Rapids is a portage. From the foot of said Rapids to the confluence of said stream with the Maumee bay (a distance of about twelve miles) the navigation is uninterrupted, and that part of the river is navigated by steam boats and other lake vessels of large size.
The said river is one of the streams of the region formerly designated as “The North Western territory.” It leads into the St. Lawrence river through Lake Erie, and is embraced by the ordinance of the congress of the confederation, passed the 13th of July, seventeen hundred and eighty-seven, entitled “An ordinance for the government of the territory of the United States north-west of the river Ohio.”
Your orator further represents that that ordinance provides, among other things, that certain articles therein specified should be considered “as articles of compact between the original states and the people and states in the said territory, and forever remain unalterable, unless by common consent.” One of those articles contains the following provision, viz:—“The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost or duty therefor.”
The right of unobstructed free navigation of the navigable streams of said territory, was again recognized and affirmed by an act of the congress of the United States, entitled “An act providing for the sales of the lands of the United States in the territory northwest of the river Ohio, and above the mouth of Kentucky river,” passed May 18, 1796; and the bed of said river, within the distance before mentioned, between the said Head of the Rapids and Fort Wayne, it is believed has never been included in any survey or sale, by the United States, of the lands bounding upon the same.
Your orator further represents that the legislature of Ohio has passed an act entitled “An act to authorize the locating and establishing of so much of the line of the Wabash and Erie canal as lies within the state of Ohio, and to authorize the selection, location, sale and application of the proceeds of the sales of its lands,” bearing date March 3d, 1834, whereby, and by other acts of legislation on her part, it is provided that a navigable canal, according to the title of said act, shall be constructed. A canal has accordingly been located from the state line separating the state of Ohio from Indiana, to the mouth of the Maumee river, and the work upon the same is now in active progress.
Your orator further represents, that Alexander M’Connell, Timothy G. Bates, Leander Ransom, William Wall, John Harris, and Rodolphus Dickinson, a body entitled, “The Board of Public Works,” created by the legislature of Ohio, are charged with the management and execution of said work; and, under pretence of a right in the state of Ohio to control, and at her discretion obstruct the navigable rivers within her limits, claim to be authorized by her laws to erect any dam or dams upon said Maumee river, which they may deem necessary or expedient for the purposes of the canal aforesaid.
Your orator further represents, that the individuals above named, pretend that it is necessary or expedient to construct one or more dams upon said river, between the said Head of the Rapids and the said state line between Ohio and Indiana, for the purpose of supplying a section of said canal with water, and that they threaten and declare their intention to do so. And that, if not arrested by the action of this court, he doubts not they will speedily cause one or more such structures to be commenced, on the part of the stream referred to, and to be completed as early as conveniently practicable.
Your orator further represents, that he purchased the property above mentioned, situated at the head of the Rapids, at a very large price, with a view to the benefit of the navigation of that part of said river extending from the said Head of the Rapids to Fort Wayne, and especially because it is situated at the lower terminus thereof—which benefits he claims are secured to him by the ordinance and law of congress before mentioned, and the consitution of the United States.
There is an extensive and valuable water power upon your orator’s said property, afforded by the Rapids of said river, which commence at that point. Two extensive saw mills, and one flouring mill have already been erected thereon—and it was the expectation of this complainant, that many others would speedily be erected—and he believes they still would be, but for the anticipated effects of said dam or dams, which are threatened to be located above.
Your orator further represents, that said dam or dams are intended to be erected some miles above his property; and that the effect thereof would be to greatly obstruct, if not entirely cut off and destroy, the navigation of the river, throughout the entire distance between the said Head of the Rapids and Fort Wayne. The value of your orator’s property would be thereby greatly lessened, if not wholly destroyed; and his right, as a citizen of the United States, to navigate said river, without obstruction, hindrance, or the payment of toll, would be violated, and rendered of little or no practical value whatever.
In every aspect of the case, he avers and insists that said dam or dams across said navigable river would be a public nuisance; and that as such their erection should be arrested by the interposition of this honorable court.
He therefore prays that the said Alexander M’Connell, Leander Ransom, William Wall, Timothy G. Bates, John Harris, and Rodolphus Dickinson, both in their private capacity and official character, may be made parties defendant to this bill—and may be compelled, under their several and respective corporal oaths, to make full, true, and perfect answers to all the matters and things herein set forth as fully as if the same was here again repeated, and they in relation thereto particularly interrogated.
And your orator prays that a writ of injunction may be immediately issued, directed to said defendants, enjoining them and their successors in office, and all other persons to desist from placing any dam or dams, or other obstruction whatever to the navigation thereof, in said river, at any point between said Head of the Rapids and the state line between the states of Ohio and Indiana; and that upon the final hearing of this cause, said injunction may be made perpetual, and that your orator may have such other and further relief in the premises as to your honors may seem meet, and equity and good conscience may require.
SWAYNE & BROWN,
I allow an injunction in this case, unless cause be shewn against it by the third day of the next circuit court at Columbus.
Let a copy of the above be served on defendants.
Justice Sup. Court U. States, and of the 7th Circuit. February 5, 1838.
The complainant supposes that the decision of the Supreme Court of the United States, in the case of Gibbons and Ogden, is of itself sufficient to sustain the injunction; but, as the ordinance of 1787—the laws re-enacting that ordinance—the law of 18th May, 1796, and the several laws in addition thereto, respecting the lands and navigable waters of the N. W. territory, furnish other and independent grounds, which he also considers sufficient, he will examine these latter first, and that decision afterward.
On the 13th July, 1787, fifteen years before Ohio became a state, and while the land in the whole Northwestern territory still belonged almost entirely to the United States, the congress of the confederation passed an ordinance, [See journal of old congress for 13th July, 1787—also Story’s Laws, vol. 3, p. 2073,] entitled “An Ordinance for the government of the territory of the United States northwest of the river Ohio.” The object of that ordinance was declared to be, among other things, “to provide for the establishment of states,” (to be formed out of said territory) “and permanent government therein, and for the admission to a share in the federal councils, on an equal footing with the original states, at as early periods as may be consistent with the general interest.” And in order to carry out these, and the other purposes intended by said ordinance, it was “ordained and declared by the authority aforesaid,” (that is, the authority of the congress of the confederation,) that certain “articles” expressed in the ordinance, should “be considered as articles of compact between the original states, and the people and states in the said territory, and forever remain unalterable, unless by common consent.” The fourth of these articles contains this provision, to wit:—
“The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of anyother states that may be admitted into the confederacy, without any tax, impost or duty therefor.”
Is this ordinance valid? The congress of the Confederation; at the time of passing this ordinance, were unquestionably both the proprietors of the territory, and the supreme legislative power over it—and as such had a right to exercise such government over it as to them seemed best, provided it were not inconsistent with the articles of confederation. We are not aware that any inconsistency with these articles is pretended to be found in the ordinance—and the fact that it was passed [See journal of old congress of 13th July, 1787] with but a single dissenting vote, is pretty good evidence that there is no such inconsistency. The ordinance, therefore, so far as it was in the character of a legislative enactment, was unquestionably valid so long as the confederation lasted. Did it continue its validity under the constitution of the United States? The congress of the United States, under the constitution, succeeded to all the rights of territory and of jurisdiction over it, which had been possessed and exercised by the congress of the Confederation—and the laws of the Confederation, so far as they were not inconsistent with the new constitution, would of course continue in force until repealed. The adoption of the constitution worked a change, of form merely, in the organization of the sovereign power over this territory—it did not annihilate any rights of property or jurisdiction that belonged to the United States, or abrogate any existing laws, unless in cases where such rights, jurisdiction, or laws were inconsistent with the principles or provisions of the new form of government. A change in the organization of the supreme power in a country, does not, of itself, change or repeal existing laws, any further than those laws are repugnant to the new form of government. The ordinance, therefore, would have continued valid under the new constitution, so far as it was consistent with that constitution, even without any re-enactment.
But, in point of fact, the ordinance was re-enacted at the first session of congress under the constitution. An act entitled “An act to provide for the government of the territory northwest of the river Ohio,” was passed August 7, 1789, (Story’s Laws, vol. 1, page 32)—the preamble of which runs thus—“Whereas, in order that the ordinance of the United States in congress assembled, for the government of the territory northwest of the river Ohio, may continue to have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the present constitution of the United States: Be it enacted,” &c. Then follow certain provisions for the appointment of the officers of said territory by the president and senate, instead of the congress, as had before been the law. In this preamble the object of the act is expressly declared to be, that “the ordinance may continue to have full effect.” This form of enactment we suppose to be as effectual in law, as though the act had contained a clause in this form, “Be it enacted that the ordinance shall continue to have full effect.” The intention to continue it in force is clearly expressed, and that we suppose is sufficient for all legal purposes.
In addition to this re-enactment in 1789, congress has also, by subsequent recognitions, in at least three several instances, virtually re-asserted the validity of this ordinance, to wit:—In the act passed April 30th, 1802, (Story’s Laws, vol. 2, page 870, sec. 5,) authorizing the people of the territory, which is now Ohio, to form a constitution, preparatory to their admission into the Union; in the act passed April 19th, 1816, (Story’s Laws, vol. 3, p. 1567,) authorizing the people of what is now Indiana to form a constitution; and in the act passed April 18th, 1818, (Story’s Laws, vol. 3, p. 1675,) authorizing the people of what is now Illinois to do the same. In each of these three several acts, it is provided that the state constitutions, about to be formed, shall not be “repugnant” to the ordinance. Congress, therefore, on its part, has evidently entertained no doubt of the validity of the ordinance, and has repeatedly evinced the intention of maintaining it in force.
Let us now look at the conduct of the states themselves, that have been formed out of this territory, and see how far they have assented to the validity of this ordinance.
The representatives of the people of Ohio assembled in convention by virtue of the authority granted by the law of April 30th, 1802, before mentioned, which contained the provision that the state constitution to be formed should not be repugnant to the ordinance—(See Preamble to Ohio Constitution, Chase’s Ohio Statutes, vol. 1, page 75.) By assembling under authority of that law, they virtually admitted the validity of that provision. Here then is one recognition. They then proceeded to adopt a constitution, the preamble of which they made to read thus:—“We, the people of the eastern division of the territory of the United States, northwest of the river Ohio, having the right of admission into the general government, as a member of the union, consistent with the constitution of the United States, the ordinance of Congress of one thousand seven hundred and eighty-seven, and of the law of congress,” (of April 30, 1802, before mentioned,) &c. Here again they refer to the ordinance in a manner that virtually recognizes its validity. The people of Ohio, therefore, in their sovereign capacity, have twice virtually assented to the authority of this ordinance. The people of Indiana and Illinois also both did the same, in a manner substantially similar, at the time they adopted their constitutions.
In addition to all these legislative recognitions of the validity of this ordinance, we have a judicial one. The Supreme Court of Ohio, (in the case of Hogg et al. vs. Zanesville Canal and Manufacturing company, 5 Hammond 410,) after quoting from the ordinance the clause before cited in relation to “the navigable waters,” say, (page 416,) “This portion of the ordinance of 1787 is as much obligatory upon the state of Ohio as our own constitution—in truth, it is more so—for the constitution may be altered by the people of the state, while this (the ordinance) cannot be altered without the assent both of the people of the state, and of the United States through their representatives.”
Thus the state of Ohio, by her highest judicial tribunal, as well as in her highest legislative capacity, has recognized the validity of this ordinance. And it surely will not be pretended, in the face of this accumulation of legislative and judicial evidence, coming from both the general and state governments, that this ordinance is not operative, at least within the state of Ohio, unless it be on the ground of some inconsistency with the constitution of the United States.
The next question, then, that arises in this stage of the argument, is, whether the ordinance be inconsistent with the constitution of the United States? And here, for the sake of the argument, we might admit that some parts of it are inconsistent with the constitution. The ordinance purports to establish fundamental rules on a variety of subjects, and a provision of the ordinance in relation to one particular subject may be unconstitutional and void, while the provisions pertaining to all the other subjects may be constitutional and valid. If, therefore, we were to allow that certain portions of the ordinance were void, we might still contend, as we do, that the clause in regard to “navigable waters” is consistent with the constitution, and therefore valid. Still, we do not admit, in reality, that any portion is unconstitutional; and although it may perhaps be necessary for our cause, only to shew the constitutionality of the single clause, in regard to “navigable waters,” yet, in order to sustain the general character and authority of the ordinance, we will briefly advert to a few of its other provisions.
The objects of the ordinance, we have said, were various. The provisions contained in the first part, and comprising about one half of the instrument, are of a temporary character, their object being merely the establishment of a territorial government to continue until the territory should be formed into states. But the remainder of the ordinance was declared to be of permanent force and operation, even so far as “to fix and establish (certain) principles as the basis of all laws, constitutions and governments, which forever hereafter shall be formed in said territory.” The paragraph containing this declaration of object, is inserted by way of preamble to the “articles,” which are enacted by the next succeeding clause, and which constitute the whole of the remaining portion of the ordinance.
The first of these articles provides for religious liberty. The second, that “the inhabitants of the said territory shall always be entitled to the benefit of the writ of habeas corpus, of trial by jury, of an equal representation in the legislature,” &c. The third, that the “lands and property of the Indians shall never be taken from them without their consent.” The fourth, that “the said territory, and the states that may be formed therein, shall forever remain a part of this confederacy of the United States of America;” that “the legislatures of those new states shall never interfere with the primary disposal of the soil by the United States;” and that “no tax shall be imposed on lands, the property of the United States.” This article also contains the provision quoted in complainant’s bill, that the “navigable waters” in the territory should remain “common highways,” for the free use of all citizens of the United States “forever.” The fifth article fixes the future boundaries of some of the states to be formed out of the territory. The sixth and last article prohibits slavery, and provides for the restoration of fugitives from service and labor. Some of these articles contain still other provisions than those here enumerated.
The only pretence set up against the constitutionality of any of these provisions is, that some of them trespass upon the constitutional sovereignty of the states. The articles that are considered most strongly inconsistent with that sovereignty, are those which assume to prescribe certain principles to be observed in the local or domestic legislation of the states. But the constitution of the United States provides, in the 4th sec. of 4th art., that “the United States shall guaranty to every state in this union a republican form of government”—and this clause, of course, gives to the general government the power of defining, at least, the essentials, if there be any essentials, of a republican government—and of coercing an observance of them, if it so please, however reluctant they may be supposed to be to exercise such a power against the will of the state. Congress have assumed the power of determining what are the essentials of a republican government in the case, it is believed, of every new state that has been admitted into the union, as well of those not of the northwestern territory, as those that are. It is true, their definitions have not, in all cases, been uniform; but those states, whose constitutions are most restricted, have no more right to say that, in their case, the standard has been unconstitutionally curtailed, than they have to say that, in the case of the other states, the standard has been unconstitutionally enlarged; and until a general standard shall be made an article of the constitution of the United States—or shall be declared by a law intended for universal application, it is not seen how any one state can determine, or any tribunal determine for her, (unless in extraordinary cases,) whether her powers in regard to her domestic polity have been unconstitutionally curtailed, or whether the powers of other states have been unconstitutionally enlarged. It must therefore, for the present, at least, we think, be admitted, (if for no other reason, because the contrary cannot be shown,) that these provisions of the ordinance, which prescribe certain principles of republicanism to be observed in the legislation of the state, are constitutional.
These remarks, in support of the validity of the most doubtful parts of the ordinance, are made, not because they appear to the complainant to have any very important bearing upon the main question at issue in this cause, (because the ordinance may be void in one part, and valid in another.) but chiefly with a view of sustaining the general character of the ordinance for validity, constitutionality and authority.
We pass now to the consideration of the particular provision, quoted in the bill, pertaining to “navigable waters.” Is this provision of any validity?
The ordinance purports to bear a twofold character:—1st, that of a simple law—and 2d, that of a compact.
We will first consider it in its character of a simple law, which is evidently its most important and appropriate character—for, although it is declared that the articles there enumerated shall be “considered as articles of compact,” yet the terms of the compact were imperatively prescribed, and authoritatively dictated. It can hardly be said that any free choice was left to the other parties to ratify or not to ratify it; it was in its inception, entirely an exparte matter. Congress, by virtue of its own power alone, “ordained and declared,” that it should have legal force and effect. This, too, was done before the organization of any state governments in the territory, and of course before there was any other party in existence, capable of ratifying such a compact with the United States. It, therefore, had so much of the character of an absolute law, as, at least, to reserve to the United States any rights of property, in the territory, which they had the right to reserve, and which, by the terms of the compact, were to be reserved by them. On this point there can be no doubt.
By an ordinance of this character, then, congress, the then proprietors of the territory, declared a reservation of a right of “common highway” over all the “navigable waters” of the northwestern territory, for the use of the citizens of the then United States, and of all other states, that might thereafter be added to the confederacy, “forever,” or until the right should be voluntarily surrendered. The only question that arises, as to the validity of this reservation, is, whether it be consistent with the constitutional sovereignty of the states that have since been formed out of this territory, and in which these rivers lie.
Without attempting to define precisely how far the constitutional sovereignty of the States does extend, it will be sufficient for our case simply to show to what it does not extend.
On this point it is clear, that it does not extend to the exclusion of any right of property in the United States, which they succeeded to from the confederation, or which, for the purpose of executing their constitutional powers, congress may have since acquired by purchase or otherwise, within the limits of a state. If the government of the United States find it “necessary and proper,” for executing their constitutional powers, to purchase property within the limits of any state, such as post offices, court houses, custom houses, dock yards, &c., they may constitutionally do so, and exercise a special jurisdiction over the property so acquired, sufficient to protect it from the operation of state legislation, and secure it to the uses of the general government, and the constitutional sovereignty of the state is not thereby infringed. It is true that general civil and criminal jurisdiction over the territory so acquired, cannot be exercised by the general government, without the consent of the state. But a special jurisdiction, sufficient to protect the property itself from the operation of state laws, and secure it to the uses for which the general government designs it, may be exercised in defiance of all state power. Such exemption of the property of the general government from state power, is essential to the very existence of the general government—and this doctrine was explicitly and fully maintained by the supreme court of the United States, in the case of McCulloch vs. Maryland, 4th Wheaton, 316, 317 & 432. The absolute and supreme power of the general government over their property, is also fully declared in the third section of the 4th article of the constitution, in these words: “The congress shall have power to make all needful rules and regulations respecting the territory or other property belonging to the United States.”
Proceeding upon these principles, congress having the power to regulate commerce, may, in carrying out that power, buy sites for, and build dry docks for the use of merchant ships, and may enact that such docks shall be free for all merchant ships belonging to citizens of the United States. And the state, although it would retain its general civil and criminal jurisdiction over the spot occupied by the dock, could not legally touch the dock itself, or place the slightest impediment or obstruction in the way of the free use of it by those for whom it was intended. So, also, if a state owned any navigable rivers, which did not, by the necessary operation of the constitution, come under the control of congress, but which might nevertheless be made subservient to the purposes of that commerce which congress has power to regulate, congress would have the right to purchase that river of the state, declare it a “common highway” for all the citizens of the United States, and exercise such special jurisdiction as might be necessary to secure it to that use, and the constitutional sovereignty of the state would not be infringed thereby. And the same might be done in regard to any other property that congress might purchase, provided such purchase were “necessary and proper,” for the purpose of executing any of their constitutional powers. They, of course, have no power to make purchases of property within the states for any other purposes.
The power of congress over the territory which they succeeded to from the Confederation, is equally absolute with that over the property which they may constitutionally acquire, by purchase or otherwise, within the limits of a State. The power is declared in the same clause of the constitution, (the 3d sec. of 4th art.) and in the same terms, to wit: “The Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory, or other property of the United States.”
In pursuance of this absolute power over the territory, Congress may reserve wild lands from sale within the limits of a State that has been erected out of territory once belonging to the United States, and protect such lands from taxation, and from all other interference on the part of the State. They may lease those lands, as in some cases they have authorized to be done, (Story’s Laws, Vol. 1, page 789, sec. 15,) grant pre-emption rights, reserve lots for light houses, dock yards, custom houses, hospitals, court houses, post offices, and post roads, or appropriate them to any other uses whatever that they may deem “needful”—(that is, so long as they retain the title in themselves—they of course cannot control them after they have parted with their right of property in them)—and the State, although it may in all other respects, exercise a general civil and criminal jurisdiction within the territory so leased, reserved, or appropriated, can nevertheless do nothing that shall in any manner obstruct, or interfere with the use to which these lands have been thus dedicated by Congress.
It is by virtue of this power that Congress have reserved, (in the State of Ohio for thirty-six years, and in other states for many years,) and still own and control wild lands, salt springs, mines, and so forth, within the limits of all the new States—and by the same right that they have reserved them thus long, they may reserve them forever, if they please.
To apply these principles to “navigable waters.” Such waters are as much “property” and “territory,” as are lands, or any thing else. They are described as property by Vattel, (Book 1, Ch. 22)—(and if they were not so at common law, they would be made so by any statute reserving them)—and like lands, or other property, may be reserved from sale during the pleasure of their owners. Those in the N. W. Territory originally belonged to the United States—no rights in them, either of soil or use, inconsistent with a paramount right of “common highway,” have ever been sold. So far from it, such a right of “common highway” over them has been expressly and repeatedly declared to be reserved. The constitutional sovereignty of the State is not infringed by such reservation. They are, therefore, still the property of the United States, so far as the right of “highway” over them is concerned—(we claim for the United States no other property in them)—and Congress has a right to exercise a special jurisdiction over them, sufficient to protect that right of “highway” from invasion.
But, it is said to be a common principle, that navigable rivers belong to the sovereign of the country in which they lie. This we grant is true, in the absence of any reservation by an antecedent sovereign—but such a reservation, we apprehend, would be binding even as between nations having nothing else in common. If England, for example, should cede one of her colonies to France, with a special reservation of a perpetual right of “highway” (in the technical sense of that term) for all English ships, over the navigable rivers in such colony, unless or until the right should be voluntarily surrendered by her, any violation or impediment offered to that right by the French government, would be a just cause of war—and if such a reservation would be legal between two nations, otherwise independent of each other, how much more, if possible, is it so between governments having so many interests in common as our general and state governments have, and exercising their powers, and capable of holding property, within the same boundaries?
But, again. We say that even on the principle that navigable rivers do belong to the sovereign, the right of way over this river would belong exclusively to the general government—because, for all purposes of “commerce among the several states,” Congress is the exclusive sovereign (Gibbons & Ogden 9th Wheaton 1)—and, as this river extends into two states, that circumstance would necessarily make it the property, and bring it under the control, of the power having the control of commerce between those states.
But, it is said that the old states have the control of their navigable rivers; and, therefore, unless the new states have the control of those within their boundaries, they are not on a political equality with the old states.
We are willing to admit that the old states, before the adoption of the constitution of the United States, had the control of their navigable rivers—especially of those which were entirely within their own limits. But, we doubt whether, even when they were independent states, they had a right to place any impediment to navigation in a river that extended into a neighboring state. Before the purchase of Louisiana, the American government contended for the free navigation of the Mississippi to its mouth—and if that doctrine was correct, it would have applied, before the adoption of the constitution, to a river that extended into two states. Still, we are willing to admit, for the sake of the argument, that the states respectively had the sole ownership and control of all navigable waters, of every kind, within their boundaries. How did they acquire that control? It was, in the first instance, say the Supreme Courts of Pennsylvania and Massachusetts, by grants from the crown—(Carson vs. Blazer, 2 Binney, page 476—and Commonwealth vs. Charlestown, 1 Pickering 182.) It was then only by virtue of a proprietary right,—by force of actual ownership of them as property—that those states, so long as they were colonies, controlled their navigable rivers. After the revolution they held them by an additional right—that acquired by forcibly expelling all other claimants from their limits. Ohio cannot claim to control the rivers within her limits, by virtue of either of these titles. The United States have never granted these rivers to her—nor has she ever ejected the United States from the possession of them. Furthermore, in the act of congress which admitted Ohio into the Union—or which (if the other side like the term better.) acknowledged the sovereignty of Ohio, the United States did so with the special limitation, and on the special condition of the United States retaining the right of “common highway forever” over these rivers, according to the terms of the ordinance, (Story’s Laws, vol. 2, page 870, sec. 5)—and Ohio assented to this limitation and condition, as will be hereafter shown.
Further—The political equality of the States, in the view of the Constitution—to which (inasmuch as it has been assented to by all the States) all adverse provisions of the ordinance, if there are any such, must yield—does not depend at all upon the fact, whether the U. S. own the same amounts, or the same kinds of property in each, to be exempted from the operation of the legislation of the State. Congress may own millions of acres of wild lands within the limits of one State, and that land be exempted from State legislation—and may not own a single acre in another State, and yet the two States are on a political equality in the view of the Constitution. So Congress may own a custom-house, court-house, or an hundred or five hundred post-offices in one State—in which case all these buildings would be exempt from the operation of State laws—& not own a single one of the same kind of buildings in another State, and yet the two States will be on a political eqality in the view of the Constitution. Because the Constitution provides that the power of Congress over “the territory and other property” of the U. S. shall be absolute, in whatever State such territory or other property may lie. By virtue of the same principle, Congress—provided they succeeded to the possession of them from the Confederation, or purchased them for the Constitutional purpose of “regulating commerce”—may own the navigable rivers, or a right of “common highway” over the navigable rivers, in one State, and not own them in another, without affecting the political equality of those States in the view of the Constitution.
Inasmuch then, as the United States were once the undisputed owners of these rivers, and have never sold or granted to Ohio their property in them—but, on the contrary, have, by the ordinance of ’87, the law of ’89 re-enacting that ordinance, and the law of 1802 admitting Ohio into the Union, specially reserved a right of “common highway” over them—and inasmuch as there is no constitutional impediment to their continuing to hold that property in them forever if they please, or to their exercising such special jurisdiction over it as is necessary to protect it from infringement—this right, or property in these rivers must be regarded as still belonging to, and under the control of the government of the United States.
We have thus illustrated the effect of the ordinance, and the subsequent laws confirming it, regarding them in the light of ordinary statutes. We will now consider the ordinance in the other character, that of a “compact,” which it also purports to possess.
It is declared that the articles enumerated in the ordinance “shall be considered as articles of compact with the people,” as well as “the States” of the N. W. Territory. We suppose that this compact with “the people” was, of course to continue only until the formation of States and State governments—for it is not to be supposed that Congress intended, even if they had had the power, to tie the hands both of the U. S. and of the State Governments in this territory, from ever altering any one of these articles, without first obtaining the consent of every individual citizen that might forever after reside in the States to be formed out of the territory. And even during the territorial government, it could certainly have no legal effect beyond the pleasure of Congress. The people, in their individual capacity, were incapable of ratifying such a compact—and for this reason the compact, as between the U. S. and the “people” of the N. W. Territory, was not binding even upon the faith of the U. S.—they might retract their pledge at any time they should see fit. The ordinance in this respect, was like the last tariff law, commonly called the compromise act, which it was declared should continue a certain number of years, and was intended, at the time it was passed, to operate as a sort of pledge—so far as that particular Congress, had power to make such a pledge—to all parties interested, of what the policy of the government should be for the term of years therein mentioned—but which might nevertheless, be at any time legally repealed. So the ordinance, in its character of a “compact with the people,” was merely a deliberate and solemn declaration, on the part of the U. S., and intended as a sort of pledge (so far as that Congress had power to make such a pledge,) to the people of the territory, as to the kind of Government that should be extended over them, until they were permitted to form State governments of their own. Such a pledge was repealable at the will of any subsequent Congress—and “the people” took no rights under it, which could not be retaken by Congress at will. It was also finally superseded by the “compact with the States,” so soon as those states were formed. Of course we have now nothing to do with this “compact with the people.”
But the ordinance purports also to be a “compact with the States.”
Perhaps there may be sufficient grounds for saying that this compact has been ratified, or rather assented to, on the part of Ohio. The Convention that formed the constitution of the State, assembled, as we have before had occasion to remark, under authority of the law of Congress of Ap. 30, 1802, which provided that the Constitution to be formed by them, should “not be repugnant to the ordinance.” By assembling under authority of that law, they acknowledge the validity of that provision. In the preamble also to their Constitution, they again recognize the validity of the ordinance. Her Supreme Court also has declared, at least one “portion” of the ordinance to be obligatory upon the State.—(Hogg & Zanesville Co. 5 Hammond, 416.)
If it should be said that until a State government was actually formed, no compact could be entered into that should bind the State after it was formed, and that therefore the assent of the Convention was of no validity—the answer would be, that, by the law of Congress (of April 30, 1802) authorizing them, on certain conditions to form a Constitution, the people of the territory were invested, prior to the formation of their State government, with the independence necessary to enable them to assent or dissent to the conditions of the ordinance and law. The people exercised this independence by electing members of the Convention under, and with reference to, the provisions of the law. The members of the Convention, therefore, constituted, in fact, quoad hoc, a government—for they had the authority of the people to act for them in the premises. Under these circumstances the Convention assented to the conditions of the ordinance—and although they at the same time established a new form of government, and assumed a corporate name, they could not thereby relieve their constituents from the obligations they had just assumed—especially as the people have ever since sanctioned the doings of the Convention by acquiescence.
Congress also, by the same law, that authorized the assembling of the Convention, (Story’s Laws, Vol. 2, p. 870, sec. 7), submitted to that body, “for their free acceptance or rejection,” certain “propositions” in relation to school lands and salt springs, by which the State, on certain conditions, was to acquire valuable benefits. These “propositions” were accepted by the Convention in behalf of the people of Ohio—(See “Ordinance and Resolution,” to that effect, passed by the Convention, Nov. 29, 1802 Chase’s Statutes of Ohio, Vol. I, page 74)—and Ohio has ever since enjoyed all the valuable privileges thus acquired. But if it should now be maintained that that Convention had no right to make a compact with the U. S., then those school lands must now be accounted for to the U. S. and the possession of the salt springs restored.
We think, therefore, it must be held that that Convention had power, in behalf of the people, to assent, and that their recognitions before mentioned of the validity of the ordinance, virtually constituted an assent, to the terms of the ordinance—or, in other words, they thus ratified the compact contained in it, and thus bound the State.
What, then, was the effect of this “compact”? Why, it threw open to the people of the whole U. S. the free use, “forever,” as “common highways,” of all the rivers in Ohio, that were then navigable—or, rather, the State thereby assented to the reservation of this right of highway, as expressed in the ordinance, and precluded herself from the right of ever afterward objecting to it. This was the effect of the compact, not merely in relation to such rivers as Ohio might suffer to remain navigable—but in relation to all that were navigable at the time of the compact—and this ratification of the compact would have had this effect, even if Ohio, instead of the U. S., had at that time been the real owner of the rivers.
The people of all the U. S. then, were thenceforth to have “common” rights with Ohio, in the use of these rivers, so far as the navigation of them was concerned. It was also a part of the compact that the rivers should remain “highways”—that is, open ways. No impediment, therefore, could be placed in them by either party without the consent of the other. And such, we apprehend, are now the respective rights of these parties to these rivers—(that is, if we consider the ordinance merely in the light of a compact between equals, and not of a law by the superior power—or, rather if we consider the rights of the U. S. to these rivers as acquired, instead of reserved, by compact—for in the case of reservation they would still continue to have sole authority over them. Such, we repeat, (subject to the proviso just stated), would, we apprehend, be the respective rights of these parties to these rivers, unless the compact, on this particular point, have been annulled or modified.
It was provided in the ordinance, that the articles of compact might be altered “by common consent.” Has this been done? We maintain that by the adoption of the Constitution of the U. S.—to which Ohio, as well as the other States, has assented—this compact has been so far modified or superseded, as to give to the General Government the same exclusive power (instead of the modified one, which perhaps it would have held under the compact,) over all such “navigable waters” as extend from Ohio into any neighboring State, as by the Constitution, it possesses over all other navigable rivers, which extend into two States. We suppose the decision of this Court, in Gibbons and Ogden, that the power of Congress “to regulate commerce among the several States,” was an exclusive power over “navigation” between two or more States, establishes the point that Congress has exclusive jurisdiction over the right of way of all navigable rivers extending into two or more States. If, however, the Court should decide that the compact expressed in the ordinance, has not been thus far superseded or modified by the Constitution, we then fall back upon the compact itself, and say that that covers all navigable rivers of every kind, whether they extend beyond the limits of the State or not—and maintain that, even under that compact, the U. S. have equal rights with Ohio in this river, and that therefore Ohio has no right to convert this “highway,” or open way, into any thing different from an highway, or to obstruct or impede the navigation of it without first obtaining the consent of Congress.
We will however, offer one or two suggestions in support of the opinion, that this modification of the compact has been made by the constitution. And one suggestion is, that unless such a modification or alteration have been made, congress has not the power of making any such improvements in these livers as should make them any thing but “highways,” or open ways—they cannot, for instance, erect dams in them for the purpose of improving the navigation, without first obtaining the consent of the states in which the rivers lie. If the provision of the ordinance, that these rivers should remain “common highways,” that is, open ways, was strictly a compact, and not merely a reservation of certain highways by one party, and assented to by the other—and if that compact, so far as it relates to waters extending into two states, have not been superseded by the constitution—then, both parties having equal rights in the rivers under the compact, and having agreed that they should remain “highways,” or open ways, neither party, the United States no more than a state, could place any structures in them that should alter them from highways—though with a view to the general improvement of the navigation, without having first obtained the consent of the other party to the compact. And, therefore, if this compact have not been altered, so far as it applies to rivers extending into two states, by the adoption of the constitution, but is still in force against the United States, it imposes such a restriction upon the constitutional power of congress in “regulating commerce among the several states” of the northwestern territory, as that power does not lie under in other portions of the union—for elsewhere, as we shall hereafter attempt to shew, congress may improve the navigation of rivers that extend into two states, by dams or otherwise, at pleasure.
The other suggestion is, that the ordinance was first enacted under the Confederation. The States being then independent of each other, compacts became necessary to secure freedom of navigation within each other’s boundaries. Such a compact, to a certain extent, was expressed in the 4th of the articles of Confederation, as existing between the States that were parties to the Confederation. But the freedom of navigation into each other’s territories being now secured by the constitution of the United States, subject only to such regulations as the general government may prescribe, compacts on that subject are no longer applicable to our condition. They would constitute exceptions to the operation of the national constitution—and would but disturb the uniformity and equal operation of the system intended to be established by it. Ohio, and the other States of the northwestern territory, have assented to this national constitution—and the only reasonable doctrine would, therefore, seem to be that such compacts, with these new States, have been superseded or annulled by that constitution, in all cases coming within its sphere.* In fact, we suppose it entirely clear that the ordinance, by virtue of its original enactment in ’87, could not deprive succeeding Congresses under the constitution, of any power intended to be granted by the constitution. The only question is, whether Congress, by the re-enactment of the ordinance under the constitution in ’89—or by the laws permitting the states of the territory to form constitutions “not repugnant to the ordinance,” intended to surrender any portion of their exclusive and constitutional power of regulating commerce and navigation among these States? or, what is the same thing, of their exclusive control over navigable waters extending into two of the States? We do not think it necessary to make an argument on this point, for we cannot suppose that it will be pretended on the other side, that any intention to part with, or suspend the operation of, one of their most important constitutional powers, so far as it might operate upon this particular portion of the union, can reasonably be inferred from the informal language of those acts. It would certainly require something more explicit to pledge the faith of Congress, that they would not exercise their constitutional powers in a particular portion of the union—more especially as they have repeatedly evinced the opposite of any intention to make such a pledge, by enacting various laws for disposing of and controlling these rivers.
Assuming then, that the compact contained in the ordinance, has been superseded or annulled, so far as it applied to “navigable waters” extending into two or more States—there is nothing else left for that compact or reservation to operate upon, except those “navigable waters,” if any such there are, which lie entirely within the limits of one State, and connect with no waters of other States, but which may nevertheless be useful to the citizens of other States for purposes of navigation. The United States would have, under the compact, at least, an equal right with Ohio, to the control of these last named waters—and Ohio could not, without the consent of Congress, erect in them any structures that should alter them from “highways,” or open ways, even though she were to do it for the purpose of improving the navigation.
The conclusion then, to which we have arrived in regard to the effect of this ordinance—re-enacted as it has been under the constitution—is, that—if it have not been in part superseded or annulled by the constitution—it has, either in its character of a law, or a compact, or both, had at least this effect, viz:—To reserve to the United States such a right of “common highway” over all those rivers within the limits of Ohio, as well those lying entirely within the state, as those extending beyond it, that were navigable when Ohio was admitted into the union, and are still useful to the citizens of other states for purposes of navigation—as that Ohio can offer no obstruction or impediment to the navigation of them, without first obtaining the consent of congress. And this, the complainant supposes, is sufficient for his case.
There is however a different view, that may be taken of this matter of the “compact,” so far as it relates to these rivers—a view, which, if correct, ejects Ohio from all right that she may set up, or that her Supreme Court may set up for her,* to an equal voice with Congress in the control of any of these navigable rivers—as well of such as lie entirely within her limits, as of those that extend into other states.
If Ohio have the right to an equal voice with Congress in the control of any of these rivers, that right is, in effect, an equal right of property in them, or in the right of way over them. The right of perpetual control is a right of property. Or, at any rate, a right of perpetual use of navigable rivers as highways, and of veto upon any alteration of them from highways to private ways, or to no ways at all, constitute a valuable property right. This right of property in them, if the State have it at all, must have been acquired, at some time, from the United States. Have the United States ever granted her that right? If they have ever made such a grant, it was made by, or in pursuance of, this “compact,” that is expressed in the ordinance. Let us see whether this “compact,” or the laws made in pursuance of it, have ever actually passed any such right to Ohio:—
At the time the ordinance was first enacted, there was no such State in existence as Ohio, that could ratify the compact, or, of consequence, that could take any rights under it. The ordinance, therefore, at the time of its enactment, so far as it related to a grant of valuable rights of property to States afterward to be formed, was not a “compact;” for a compact supposes the actual existence of two parties. It was, then, in effect, merely the suggestion of a compact, or the mere promise of a compact, for the benefit of a party not then in existence. Such a suggestion or promise was entirely gratuitous, and not binding upon the party making it. It was not merely voidable—it was actually void—and could never be of consequence unless actually executed.
Was the re-enactment of the ordinance in 1789, an execution of this promise? or did it pass any rights of property to Ohio? No; for the State of Ohio had not even then come into existence to ratify the compact, or to take any rights under it. This re-enactment, then, so far as it promised any valuable rights in these rivers to Ohio, whenever she should come into existence, was, at most, like the original enactment, merely a gratuitous and void promise—it bound no one—it passed no rights of property in the rivers. The right of property, then, in these rivers, still continued to remain—at least until 1802, when Ohio became a State—perfectly, legally and solely in the United States. At any time previous to 1802, Congress had a perfect right to make, at pleasure, a final and absolute disposal of the property in these rivers—they had a right, for instance, to sell them to individuals, if they had so pleased—without the least regard to any gratuitous promises or one-sided compacts, that had previously been made or suggested for the benefit of a party not in existence at the time.
The question now remains: Did the United States, in 1802, when Ohio became a State, or have they since, executed this promise, by which they were to grant to Ohio equal rights with Congress in the property or control of these rivers? We say no. We say that Congress have chosen to disregard that void promise, and to dispose of these rivers in another way. On the 18th May, 1796, six years before Ohio became a State, and six years before any rights could have vested in Ohio, Congress evinced the intention of disregarding this promise, and proceeded to act upon that intention, by enacting, on the strength of their own rights of property and jurisdiction, and without reference to any will or any claims that Ohio might ever afterward set up, that a portion of these rivers should “be and remain public highways”—(Story’s Laws, vol. 1, page 421.) This absolute and arbitrary legislation in regard to a portion of these rivers, evidences their intention to retain their right of exclusive control over the whole of them, without regard to any previous promise that had been made to the contrary. And they have followed up this policy, from that day to this, by the same kind of legislation (as will hereafter be shown) in regard to all the other navigable rivers in the territory, and without reference to, or consultation with, Ohio, or any other of the States in which the rivers lie. In doing this, they have only done what they had a perfect right to do. They have only done what the new form of government, and the new situation of the States under the Constitution, made it proper that they should do. Indeed this whole idea of a “compact” in regard to these rivers, had its origin solely in the nature of the Confederation, and in the want of any supreme power, that, legislating in its own sphere, could secure the rights of all parties to the use of them. When this requisite power was brought into existence by the adoption of the Constitution of the United States, all occasion for a compact vanished at once—and with the occasion doubtless vanished all intention of executing it. Its obligation also, if it ever had any, expired at the same time, for no rights had become vested in other parties under it, and the promise or compact could have no force beyond the pleasure of the party making it, until some other party had actually availed itself of it, and acquired rights under it. In fact, the provision of the new Constitution, (art. 4, sec. 3,) which declares that Congress shall have sole and absolute power over the territory of the United States, to do with it whatever should to them seem “needful,” was a virtual retraction of any promise, that had previously been made, to dispose of it in a particular way, or to give to any States that might afterwards be formed, an equal right with Congress to the property or control of the rivers that made a part of that territory.
But, it may be said that the law of Congress of April 30, 1802, allowing the people of Ohio to form any constitution “not repugnant to the ordinance,” is equivalent to a permission to them to assume an equal power with Congress in the control of these rivers. But we think the object of this provision in the law of 1802, was merely to fix the republican character of the constitution to be formed, and not to invest the state gratuitously with any valuable rights of property, at the expense of the United States, and merely in the execution of a void promise, after all the circumstances that gave rise to that promise, and all occasion for the fulfilment of it, had passed away. We think that, even if Congress had never manifested any intention to the contrary, this merely negative provision in the law of 1802, which evidently referred to the political character of the constitution to be formed, and contained no express reference to any grant of property to the state, could not have had the effect of executing that void promise, or of passing any valuable property rights from the United States to the state. We are confident that a direct and explicit grant—such as has never been made—would have been necessary for such a purpose. But, however, that may be, the fact that Congress had previously manifested an intention of not executing that promise—as by the law of 18th May, ’96, making an arbitrary and absolute disposal of a portion of these rivers, they had done—and the further fact that they have ever since continued to dispose of the rest of these rivers according to their own will and pleasure, and without reference to any claims or wishes on the part of the states in which they lie, rebut any presumption, that they intended, by the law of 1802, to grant any special rights of property in these rivers to Ohio.
To illustrate this point, let us suppose that the present Congress should pass a law, that whenever hereafter a state should be formed in the territory west of Missouri, such state should become joint proprietor with Congress of a certain tract of land within its limits. Such a promise would obviously be entirely gratuitous and void—and we say that it would require a new and explicit grant, after the state should have come into existence, to pass this right of property from the United States to the state. But, admitting that this express legislation would not be necessary, still, if Congress should at any time previous to the state’s coming into existence, manifest an intention of not executing the promise, that circumstance would be sufficient to rebut every presumption founded on the original promise, and would make an express grant necessary. If, for instance, Congress, before this supposed state had come into existence, should sell a part of the tract referred to, that act would be sufficient evidence of their intentions in regard to the remainder of the tract. It would avoid the whole promise, and Congress might then go on, after the formation of the state, and sell the remainder of the land, without any reference to the claims of the state. So we say in regard to these rivers. Previous to any rights vesting in the states, Congress manifested an intention of retaining, in their own hands, the exclusive control of these rivers during their pleasure, by making permanent laws in relation to a portion of them—and they have ever since, notwithstanding the formation of states, continued to act upon that intention, by making similar laws in relation to other portions of them. We say, therefore, that this promise of a grant to Ohio, of special rights of property in these rivers, has not only never been executed, but has been in fact repudiated.
If this view of the compact suggested in the ordinance, be correct, so far as it relates to rivers, then the compact (on this particular point) was never executed, nor ever took effect, so far as to pass any rights to any of these rivers, from the United States to the states in which the rivers lie—not even to those rivers that lie entirely within a single state; and, therefore, that particular portion of the ordinance, which relates to rivers, is now of no validity whatever, so far as its object was to grant valuable rights to Ohio. It is valid only in its character of a law, designed to reserve the rights of the United States, and we are to look at it solely in this latter character, and especially are we to look at any subsequent legislation on the part of Congress, to determine the present ownership of these streams.
There is still one other point, having relation to the ordinance, which is worthy of consideration. The constitution of Ohio, was professedly made in subordination to the ordinance, as its preamble shews. Now, whether the ordinance itself had power to bind the people of Ohio, against their will, in the formation of their constitution, or not, is a question of no consequence in determining the present power of their legislature, under that constitution. It is sufficient that, for some reason or another, the people of Ohio, by their constitution, gave their legislature no power to transcend the provisions of a certain instrument called “An Ordinance of Congress,” &c. We submit, therefore, that—whether the people of Ohio have power to adopt, at pleasure, a new constitution, that shall be paramount to the ordinance, or not—yet, so long as they permit their present constitution to continue, their legislature is bound by it, and have no powers beyond it. If such be the case, the legislature of Ohio has no more power to obstruct these “highways” within her limits, than the legislatures of Maine and Massachusetts have to establish slavery in those states, in defiance of their constitutions.
Again—It is to be considered that the people of Ohio, at the time of adopting their constitution, were in a territorial state, and had no legislative powers, other than those specially granted to them by Congress. Congress, in the law of April 30, 1802, authorizing a convention, saw fit to limit the powers of that convention to the formation of a constitution, consistent with a certain instrument called “an ordinance,” &c. Now, they might, if they had so pleased, have said that the powers of that convention should be limited to the formation of a constitution consistent with the declaration of independence, or with John Locke’s constitution for Carolina, or with any other instrument whatever—and, although, such legislation on the part of Congress, would have been arbitrary, capricious, and perhaps unconstitutional, still that particular convention would have been bound by it—because all their powers were derivative, and could be exercised only in conformity to the authority granted. They must act thus, or not at all. If, therefore, the ordinance was not obligatory upon the state at large, either by force of its original enactment, or by force of the re-enactment in 1789, still, the law of Congress of 1802, authorizing the convention, made it obligatory upon that particular convention, by refusing them power to go beyond it. The convention might have refused to act at all, under such restrictions, but they could not act in conflict with them. Under these circumstances, they saw fit to act in conformity with the powers granted to them; and, the people, by their subsequent acquiescence, have adopted and sanctioned that action; and even if the people have power to adopt a new constitution to-morrow, that shall be paramount to the ordinance, still their legislature is governed by the one in existence, until a new one shall be formed.
Upon this question of the powers of the legislature, we quote the opinion of the Supreme Court of Ohio, given in the case before referred to, of Hogg vs. Zanesville Company, which grew out of a dam, which the legislature had licensed that company to build across the Muskingum river. The court, after citing from the ordinance, the clause in regard to “navigable waters,” say: “This portion of the ordinance of 1787, is as much obligatory upon the state of Ohio, as our own constitution. In truth, it is more so—for the constitution may be altered by the people of the state, while this cannot be altered without the assent both of the people of this state, and of the United States, through their representatives. It is an article of compact, and until we assume the principle, that the sovereign power of the state, is not bound by compact, this clause must be considered obligatory. Certain ‘navigable rivers’ in Ohio are ‘common highways.’ Of this character is the Muskingum river. Every citizen of the United States has a perfect right to its free navigation—a right derived, not from the legislature of Ohio, but from a superior source. With this right the legislature cannot interfere. In other words, they cannot, by any law which they may pass, impede or obstruct the navigation of this river. That which they cannot do directly, they cannot do indirectly. If they have not themselves the power to obstruct or impede the navigation, they cannot confer this favor upon an individual or a corporation.” (5 Hammond 416.)
This opinion, we suppose will be considered decisive as to the powers of the Legislature of Ohio—for although this Court may, in some cases, curtail the powers of a State Legislature, as expressed in their Constitution, in order to reconcile them to the Constitution of the U. S.—yet it is believed that it will never enlarge those powers beyond the limits established by their own tribunals.
The complainant is not disposed to rest his case upon any doubt that may exist as to whether the Commissioners have received the authority of the Legislature to erect this dam. The powers granted to the Canal Commissioners, by the law of 1825, “to take possession of, and use all and singular any waters, streams” &c. “and to make all such dykes, locks, dams and other works and devices as they may think proper,” (General Laws of Ohio vol. 23-page 56—also Chase’s Ohio Statutes Vol. 2, page 1475, Sec. 8.) were evidently intended to apply as well to navigable waters as to others. This intention is to be presumed from the unlimited terms of the grant, taken in connexion with the fact that the Legislature have ever assumed to control navigable rivers, and to license dams across them, as may be seen by the laws referred to under the head of “Dams,” in the Index to Local Laws in Chase’s Statutes, Vol. 3, page 2149. It is also well known that this power has been exercised by the Commissioners, and sustained by the Legislature, in very numerous instances. The Legislature also, by “an act to improve the navigation of the Muskingum river by slack-water navigation,” passed March 9, 1836, (Local Laws of Ohio, Vol. 34 page 346) authorized the Commissioners to erect dams and locks across that river. The Legislature also, at its last session, refused to grant the request of the Complainant, that the erection of this dam in the Maumee river might be forbidden. The only question therefore, which the Complainant raises, is as to the powers of the Legislature.*
One or two suggestions in reply to arguments urged in the Circuit Court, and we will have done with the ordinance. It was there argued, that because the “carrying places” between the rivers, which, equally with the rivers, were, by the ordinance, made “common highways,” had been obliterated and lost, the right to the rivers was lost with them, notwithstanding the rivers have been in constant use as highways up to the present time. One answer to this argument is, that if these carrying places have been lost in consequence of their use having been voluntarily abandoned by the public, that constitutes an alteration, so far, of the compact, according to its provisions, viz. “by common consent.” The right of “highway” is not a right of soil, but of use, and may be forfeited by non-user. But the right to any particular portion of a highway is not forfeited, so long as the common use of that portion is continued, although the use of the remaining portions be abandoned. Another answer to the argument is, that if these portages have been obliterated and destroyed, either by negligence or design, such a loss does not at all involve the loss of any other rights, which remain, and can be identified. Because a man’s house is destroyed by accident or an enemy, that loss does not involve a forfeiture of his farm also. Yet such is the amount of the argument on the other side.
Another argument, urged in the Circuit Court, was, that Ohio and the U. S. were joint owners of these rivers, and that, as joint owners, each party might exercise control over them to the extent of the destruction of the object. But we doubt whether the Court will concur in the opinion, that Ohio, in her capacity as a State, is a joint owner with Congress, or has any control, or even a right to a voice in the control, of any of the navigable streams within her limits—and especially of any that extend into another State. But even if she have a right to an equal voice with Congress in the control of them, she obtained and still holds that right solely by virtue of a compact, one part of which stipulates that the rivers should remain “highways” or open ways, until the “common consent,” that is, the consent of both parties, should be obtained to their alteration. This consent, on the part of Congress, has never been given. In addition to this, the laws of Congress, (which will be hereafter referred to,) enacting that these rivers “shall remain highways,” would, until repealed, operate as an express refusal, on the part of Congress, to consent to the alteration.
We have now done with the ordinance, and will pass to the consideration of the question, as it would stand, if the Ordinance were laid entirely out of the case.
And here it becomes necessary to repeat several propositions, which have been stated before, viz. 1st, That the U. S. originally owned these rivers, as property, along with the rest of the territory. 2d, That there is no constitutional impediment to their continuing to hold and control them, as property, forever, if they so please. And 3d, That they have never sold or explicitly granted them to Ohio. We ask, then, whether, under this state of facts, these rivers would not necessarily have remained the property of the U. S. even if no law had ever been passed making a reservation of them? Most certainly they must, unless there be some ground, on which an inference or implication could be based, that the U. S. intended to part with them. What legal ground is there to sustain such inference or implication? Is it, that these waters can no longer be useful to the U. S.? but may be useful to the State? Certainly not, for although they may be useful to the State, it is clear that some of them, at least, may be useful to other States also. Suppose a navigable lake or river, extending nearly across the State of Ohio from east to west—approaching nearly to Pennsylvania on the east, and Indiana on the west—yet lying entirely within the State of Ohio, and communicating with no other water that extended out of the State. Such a water, in one of the old States, might possibly be maintained to have not been granted to Congress, by the clause of the Constitution giving them power over “commerce among the several States.” Yet it is evident that such an extent of free navigation in Ohio, might be highly useful to the people of other States than Ohio—and that it even might properly be considered of very great importance by Congress, as affording facilities for that “commerce among the several States,” which Congress has the power of regulating. It even might properly be considered of such importance to that commerce, as to justify the purchase of it by Congress, if it were the property of the State. Under these circumstances, is it to be held, by force of some vague inference or implication merely, that Congress have seen fit to surrender their legal right to their property in this water gratis to Ohio? That they have given her the right to shut it up against the commerce of Indiana and Pennsylvania, or to exact contributions for its use from all the other States of the Union, that may wish to avail themselves of its navigation? Certainly such an inference or implication would be as unreasonable, as it is baseless. It might, with much more reason, be inferred or implied that Congress had gratuitiously surrendered to Ohio a tract of land of the same extent—because such a tract of land probably could never be made of one hundredth part the value, to the people of the U. S., of such a navigable water. On the other hand, inasmuch as such a water would afford great facilities for “commerce among the several States,” there would be much more reason in implying a grant (under the Constitution) of such a water to the U. S., in case it lay in one of the old States, that own their streams, than in implying a gratuitous grant of it by Congress to a State, when Congress were the real owners, as they were of the streams in the N. W. Territory.
Even in the absence then, of any special reservation by Congress, Ohio could certainly lay no claim to the ownership or control of any navigable waters within her limits, unless it were such as, from their unfavorable location, or the smallness of their extent, were useless to the people of every other State: and none could be called useless or worthless to the people of other States, which, when free to be used, were in the habit of being used by them.
But Congress have not left their right to these rivers to stand upon this ground alone—although they might safely have done so. They have seen fit to guard and declare their rights by special enactments. So early as the 18th of May, 1796—six years before Ohio became a State—Congress passed an act, entitled “An act providing for the sale of the lands of the United States, in the territory northwest of the river Ohio, and above the mouth of Kentucky river”—(Story’s Laws, Vol. 1, page 421.)
This act provided for the sale of all those lands, within the district which is now Ohio, to which the Indian title had, at that time, been extinguished. The 9th section of the act provides “That all navigable rivers, within the territory, to be disposed of by virtue of this act, shall be deemed to be and remain public highways.”
The Indian title had not, at that time, been extinguished to but a small portion of the N. W. Territory; but this law continued the standard of the regulations and conditions upon which all lands subsequently acquired, were ordered to be sold; and so fast as the Indian title was extinguished, and the lands brought into market, laws were passed specially referring to this act of 18th May, 1796, and the acts in addition thereto, and enacting that the lands should be sold under the same regulations, and “upon the same terms and conditions, in all respects,” as had been provided by those primary laws—except in certain cases where some special alterations were made by those subsequent acts. But no alteration of that portion of the original law, that related to navigable rivers, was ever made in any subsequent act—(Story’s Laws, vol. 1, p. 783, sec. 1; vol. 2, p. 926, sec. 1; p. 929, sec. 5; p. 1011, sec. 1; p. 1066, sec. 2; p. 1186, sec. 2; vol. 3, p. 1586, sec. 3; p. 1596, sec. 3; p. 1744, sec. 3; p. 1786, sec. 2, &c. &c.)
The Indian title to the territory embracing so much of the Maumee river as lies in Ohio, was extinguished by a treaty, called the treaty of Detroit, made on the seventh of November, 1807—(See Lowrie & Clarke’s edition of American State papers, 1st vol. of Indian affairs, page 747, sec. 1)—and by a treaty made 29th September, 1817, “at the Foot of the Rapids of the Miami of Lake Erie”—(Amer. State Papers, 2d. vol., Indian affairs, p. 131, secs. 1 and 2.) In these treaties, this river is called the “Miami of Lake Erie”—one of the several names by which it has formerly been known. These lands were subsequently brought into market, by a law passed March 3d, 1819—(Story’s Laws, vol. 3, p. 1743)—and were included in what were then designated as the Piqua and Delaware districts. In this act it was provided, (sec. 3.) that the lands should be sold “on the same terms and conditions, in every respect, as are or may be provided by law, for the sale of lands of the United States in the States of Ohio and Indiana.” These “conditions” of course embraced the one, contained in the original act of 18th of May, 1796, in regard to “navigable rivers,” requiring that they should “be and remain public highways.”
By a law also, passed March 26, 1804, (Story’s Laws, vol. 2, p. 929,) it was provided, (sec. 6,) “that all the navigable rivers, creeks and waters, within the Indiana territory shall be deemed to be and remain public highways.” The Maumee river extends twenty miles into what was then the Indiana territory, and what is now the State of Indiana. It also has two navigable branches, (the St. Mary’s and St. Joseph’s) lying partly in that territory. This reservation of that portion of the river lying in Indiana, would have been sufficient evidence, in the absence of all other, that the intention of Congress was to reserve the whole river; and any evidence of such intention, we suppose would have been sufficient for our case.
It is evident that it was the intention of Congress to give these provisions effect, not merely while the territorial governments continued—but forever. As Congress has fixed no limitation to the time, it must be considered unlimited. The intention of Congress on this point may also be gathered from the fact, that it has been their uniform policy to reserve all navigable rivers within all the lands originally owned by the U. S.—and have subsequently, in no case, (so far as we are aware), granted or surrendered one of them to the State in which it lay. By a law passed March 3, 1803, (Story’s Laws, vol. 2, p. 900) Congress enacted “that all navigable rivers within the territory of the United States south of Tennessee, shall be deemed to be and remain public highways.” An act passed February 15, 1811, provided “That all the navigable rivers and waters in the territory of Orleans and Louisiana, shall be, and forever remain public highways.” (Story’s Laws, vol. 2, p. 1183, sec. 12.) An act of February 20, 1811, “for enabling the people of the territory of Orleans to form a Constitution,” &c., provides “that the river Mississippi, and the navigable waters leading into the same, or into the Gulph of Mexico, shall be common highways and forever free” “to the inhabitants of the State and the citizens of the United States.” (Story’s Laws, vol. 2, p. 1184, sec. 3.) Another “Act for the admission of the State of Louisiana into the Union,” &c., provided “that it shall be taken as a condition upon which the said State is incorporated in the Union, that the river Mississippi, and the navigable rivers and waters leading into the same, and into the Gulph of Mexico, shall be common highways, and forever free,” &c. to the inhabitants of the whole U. S.—(Story’s Laws, vol. 2, p. 1224 sec. 1.). This provision, being a part of the very act admitting the State into the Union, was necessarily intended to apply after the State government was formed, and is sufficient evidence that all other laws on the same subject, were intended to remain in force after State governments were established, as well as before.
It is believed that laws have been passed making the navigable rivers of all the territories and new States in the Union, “public highways.” The various laws on this subject are referred to in the index in the fourth volume of Story’s Laws, under the head of “Lands, public,” in the respective States and Territories. They leave no doubt as to the intentions of the Government to make these “highways” perpetual.
On the ground then, of express statutory reservation, the right of the public to the use of the Maumee river, as a “common highway,” is indisputable.
We have still one other ground, on which we claim that the control of this river belongs exclusively to Congress, viz:—the decision in the case of Gibbons and Ogden (9th Wheaton 1.) That decision was, that the Constitutional power of Congress to “regulate commerce among the several States,” was a power over navigation. The language of the Court in that case, is (page 193) that “the word” (commerce) “used in the Constitution, then, comprehends, and has been always understood to comprehend, navigation within its meaning: and a power to regulate navigation, is as expressly granted, as if that term had been added to the word “commerce”. (We may then, in the further discussion of this cause, consider commerce and navigation as synonymous terms.)
This power of Congress over “navigation among the several states,” is declared to be an exclusive power, (page 198,) and to comprehend the whole subject of such navigation. It therefore comprehends the navigation of all navigable fresh water rivers, that extend into two states, as well as to all lakes and tide waters. We find that Congress have understood their powers as embracing navigable fresh water rivers that extend into two states. They have annually made appropriations for rivers of this kind. At the last session, appropriations were made for improving the Hudson river above Albany, the Cumberland river in Kentucky and Tennessee, below Nashville, and many other fresh water rivers—(Statutes of 1837-8, Ch. 171, pages 115, 118.) It is believed that at every session of Congress, there have been more or less appropriations of this kind—all proceeding upon the assumption that Congress had the right to take possession of these rivers, and do with them what they pleased, without asking the consent of the states in which the rivers lie—and this has been the case in regard to rivers in the old states, as well as in the new. At the last session of Congress, (March 23, 1838,) a report (House of Reps. Doc. 343,) which had been called for, was made to Congress, of a survey of Alleghany river from Olean, in New York, to Pittsburg, in Pennsylvania, with a view to its improvement. What was done with this report, we have not yet had an opportunity of ascertaining. But this is a strong case to shew that Congress consider their power as embracing all navigable rivers, even within the old states, if they but extend beyond the boundaries of one state.
If it should be said that these appropriations are made on the supposition, not that the states, in which these rivers lie, must, but that they voluntarily will, tolerate these improvements, and let all the citizens of the United States have the free benefit of them—the answer is, that such a supposition is by no means so probable a one as to justify Congress in the expenditure of money upon them, without first obtaining the consent of the states. If the states have the power to control these rivers, it may oftentimes be for their interests to do it. They may, for instance, wish to charge toll for the use of them, as they have a right to do—as much as for their canals—if they are the private property of the state. Ohio is now about expending a large amount of money upon the Muskingum river, and intends hereafter to demand toll for the use of it. After she shall have expended this money, she cannot be presumed willing to surrender the possession of the river to Congress, and be deprived of the privilege of taking tolls.
Again—if a State have the right to put in dams and locks, and charge toll for the use of them, in rivers that extend into another State, then Congress have no conflicting right, and cannot prevent the State from taking such toll as she pleases. Congress would have no right to interfere with the improvements or obstructions which the State is making—nor with the rate of toll which the State may exact for the use of the river, any more than with the toll the State might charge for the use of its turnpikes, railroads or canals. The consequence would be, that the State, under the name of toll for the use of the State’s property, could indirectly, but as effectually, exercise the power of “regulating navigation or commerce among the several States,” as it could if it had power to levy a direct tonnage or impost duty, on imports and exports—a power that is expressly prohibited to the States by the constitution. If, therefore, Congress have not the control of all waters, naturally navigable, that extend into two States, they have no power “to regulate commerce among the several States,” that cannot, at any time, be defeated by the States themselves. These naturally navigable waters are the only avenues, except roads and canals, for carrying on commerce. The roads and canals may all be the private property of the State—and if navigable rivers are also the property of the States, then the States have control of all the avenues of commerce, and, of course, by means of tolls for the use of those avenues, can, in defiance of Congress, regulate commerce as they please.
Again—if these rivers belong to the States, and Congress make improvements in them, the States have a right to say, we do not like the plan of these improvements, and we will, therefore, prostrate them. But, will it be pretended that, if Congress should improve the navigation of the Allegany, as proposed in the report before mentioned, New York and Pennsylvania may prostrate the dams, buoys, and locks at pleasure?
Or, again—if these rivers belong to the States, then the States, after Congress shall have made improvements in them, may say, we are very thankful to Congress for having expended so much money in benefiting our property—we shall now be able to charge a higher rate of toll than formerly, for the use of our rivers, and shall derive greater profit from the expenditure which Congress has gratuitously, (though rather inconsiderately,) made upon our waters. Can this doctrine be true? It must be true, if these rivers are the private property of the States in which they lie, because the States certainly have a right to do what they will with their own property. On the other hand, if they are not the property of the States, then they belong to Congress—that is, so far as the right of way over them is concerned; and Congress have the exclusive control over that right of way.
If it should be said that the rivers belong to the States, but that Congress may assume the control of them, on the principle of taking private property for public use, the answer would be—that Congress, in that case, must pay the State the value of the river—and that value would probably be estimated by the amount of tolls that the State might derive from the use of the river. But never, we presume, have Congress thought of such a thing as making compensation to a State, when they have improved a river and declared it free to all citizens of the United States.
Again—if the improvements made by Congress in rivers, are merely tolerated by the States, and the general government have not within itself the legal right, the constitutional power, to control the navigation of them, then the agents of Congress are, legally, trespassers, whenever, in making the improvements ordered by Congress, they touch private property on the banks of the rivers. They also commit a nuisance, whenever they erect a dam in the bed of a river—for these agents are, in these cases, mere volunteers, acting without license from the only competent authority. Supposing Congress should send men to repair the banks of the Erie canal, or to put locks in it, without the permission of the State of New York, and those men should go upon the adjoining lands for stone and earth—would they not be trespassers? And would it not be the same in the case of the Allegany river, if that river belongs to the States of Pennsylvania and New York?
Again—if these rivers belong to the States, the States have the same right to shut them up entirely, that they have to shut up their canals and roads. They may shut them up by dams, and if by dams, by embargo laws, or otherwise, at pleasure. Virginia, for example, may, by law, forbid boats that come down the Muskingum, and other rivers within the State of Ohio, from entering the Ohio river. (It was decided in Handley’s case, [5 Wheaton 374,] that Virginia still owned to the northwest bank of the Ohio river.) Indiana, Michigan, and Pennsylvania may also forbid Ohio boats the use of their waters—and thus they may shut Ohio up within her own boundaries; or, Ohio may, if she pleases, shut herself up, by forbidding the boats of other States from coming within her borders—and thus make herself at once an independent nation, so far as commerce is concerned. All the other States of the union might do the same. We should, in short, present the paradox of a general goverment, with power “to regulate navigation among the several States,” while the several States had, at the same time, power to prohibit such navigation entirely. And the consequence probably would be, that we should very soon become twenty-six independent nations for all purposes of commerce—and when we shall have become so for purposes of commerce, we shall not be long in becoming so for all other purposes. The prohibitory and retaliatory legislation of the States of New York, New Jersey, and Connecticut, which was quashed by the decision in Gibbons & Ogden, gave us a foretaste of the manner in which the several States would “regulate navigation” among themselves, if they had the power.
It was further decided, in Gibbons & Ogden, (page 210) that the power of the States “to regulate their domestic trade and police,” did not extend to any act that might conflict with the perfect freedom of navigation among the States. No matter how important to the wealth and prosperity of the State, such “domestic trade and police” might be, it must not be suffered to come at all in conflict with the freedom of navigation among the States. This was decided to be the law, even in cases where Congress had made no specific regulations—it being considered that where Congress had not specially regulated navigation, they intended it should be entirely unrestrained.
The Court even said (pages 205 & 6,) that the States could not execute their quarantine laws, against any special provisions of Congress—and Congress seem to have had the idea that the State laws could not be executed without express authority from Congress—for by enacting that the State quarantine laws should be observed, they proceed on the supposition that State power was of itself incompetent to give those laws any vitality.
This decision then, in Gibbons & Ogden, is, of itself, all-sufficient for our cause. It covers all “navigation among the several States,” whether on rivers, lakes or tide waters, and gives exclusive control of such waters to Congress—that is, so far as the use of them for navigation is concerned.
On the supposition, then, that the Maumee is a “navigable” river, and extends into two States, the complainant has at least five, and perhaps six, distinct grounds, on either one of which he apprehends he might securely rest his case. These grounds are:—
First—The ordinance of 1787, in its character of an absolute law—re-enacted as it has been under the Constitution by the law of 1789, and the law of April 30, 1802.
Second—The ordinance, in its character of a compact—ratified as it has been by Ohio—that is, if it now have any validity as a compact in relation to these rivers.
Third—The incapacity—imposed upon the Legislature of Ohio, by the State Constitution—of transcending the ordinance.
Fourth—The original right of property, in these rivers, necessarily remaining in the United States, because never specially or impliedly relinquished to Ohio.
Fifth—The express reservation of this original right of property, as made, on the part of the United States, by the various statutes that have been referred to. And
Sixth—The exclusive power of Congress over all “navigation among the States,” according to the decision in Gibbons & Ogden.
The question that next arises is, what constitutes a “navigable river,” within the meaning of the ordinance, the several laws of Congress, and the Constitution?
And, first, what constitutes a navigable river within the meaning of the ordinance, and the several laws that Congress have passed in relation to these western rivers?
There are but two classes of navigable rivers known to the common law of this country—one, in which the tide ebbs and flows—the other, in which there is no tide, but which are nevertheless navigable in fact.
It is evident that the makers of the ordinance and laws did not intend the former class, when they legislated in regard to the “navigable waters” of the N. W. Territory—because they knew that the tide ebbed and flowed in none of them. They must therefore have meant the latter class, to wit: those that were navigable in fact.
The question then arises—what degree of navigability is necessary, in a fresh water stream, to make it, or rather the right of way over it, public property? Probably no better rule can be adopted in this case, than that which has been adopted by the old States in regard to their streams of this kind. Indeed this rule must be adopted, or an entire new one be established, for this and similar cases, without regard to precedent. And what new rule can be created, if this be discarded.
In Shaw vs. Crawford, (10 Johnson’s N. Y. R., p. 236,) it was proved only that the river had been used for rafting—and yet it was held to be a navigable one in the eye of the law. In that case, the Court (Kent being Chief Justice, and probably delivering the opinion) said, “When a river is so far navigable as to be of public use in the transportation of property, the public claim to such navigation ought to be liberally supported. The free use of water, which can be made subservient to commerce, has by the general sense of mankind, been considered a thing of common right.”
Kent, in his Commentaries, also (vol. 3, p. 344) says: “The public, in cases where the river is navigable for boats and rafts, have an easement therein, or a right of passage as a public highway.”
Spencer, Ch. J. (17 Johnson 209 and 10) quotes the following passages, for the reason, as he says, that the treatise from which they are taken, “is universally considered of high authority, of itself, and because it defines, with more precision than any other work, what constitutes a public river.” “Lord Hale, in his treatise de jure maris et brachionum ejusdem, edited by Mr. Hargrave, (pages 8 and 9) says: ‘There be some streams or rivers, that are private, not only in propriety and ownership, but also in use, as little streams or rivers, that are not a common passage for the king’s people: Again, there be other rivers, as well fresh as salt, that are of common or public use for carriage of boats and lighters; and these, whether they are fresh or salt, whether they flow and reflow, or not, are prima facie, publici juris, common highways, for a man or goods, or both, from one inland town to another.’ ‘Thus, (he observes) the rivers of Wey, of Severn, of Thames, and divers others, as well above the bridges and ports as below, and as well above the flowing of the sea, as below, and as well where they are become private property, as in what parts they are of the king’s property, are public rivers, juris publici; and therefore, all nuisances and impediments of passage of boats and vessels, though in the private soil of any person, may be punished by indictment, and removed.’ ”
In the same case, (page 211) Ch. J. Spencer adds, that “The distinguishing test between those rivers which are entirely private property, and those which are private property subject to the public use and enjoyment, consists in the fact whether they are susceptible, or not, of use as a common passage for the public.” And he adds that “this distinction was adopted by Chief Justice Kent, in Palmer vs. Mulligan, (3 Caines’ Rep. 319.)”
The same doctrine is laid down in numerous other cases, (20 Johnson, p. 100; N. Y. Digest, vol. 2, p. 299; Johnson’s N. Y. Digest, vol. 2, p. 8; also Arundel vs. McCulloch, 10 Mass. R., p. 71; and in Wheeler’s Practical Abridgment of Am. Com. Law Cases, vol. 8, p. 369 to 375, where most of the American cases are cited.)
We see not upon what ground any abatement from, or modification of these principles, can be made in determining what rivers were intended, by the ordinance and laws of Congress, to be made “public or common highways,” for the people of all the States—unless, perhaps, in one single particular, to wit: The case of a river, or other water, if any such there be, lying entirely within the limits of one State, and navigable for so short a distance, or lying in so disadvantageous a position, as to be useless to the people of any other State than that in which it lies.
It is true, that the doctrine of these cases may perhaps at first view, appear rather rigid to be applied against a State where her sovereignty over the streams within her limits is in question. But no other rule can be applied, unless a new one can be created—and, as was before suggested, what are the principles on which a new rule can be founded, if this old one be given up? It is, moreover, far more proper that, under the ordinance and laws of Congress, the rule of interpretation, as to what constitutes a navigable river, should be applied strictly against the State, than strictly against the General Government, because, on the one side depend the rights of the people of the whole United States, in common with the people of Ohio—on the other, depend only those of Ohio to the exclusive possession. Furthermore, the General Government undoubtedly meant to reserve a right of free navigation over all rivers that could be useful to the people of the United States, for purposes of trade. Besides, if it should be found that the rule adopted by the Court was more strict against the right of the State than Congress intended, Congress can give a dispensation from the rule, to such an extent as they see proper. But if, on the other hand, it were decided too strictly against the right of the United States, the people of the United States would have no remedy, because Ohio would of course refuse to give back any sovereignty of this kind, which had once been adjudged to her. If it should be said that the U. States would be no more disposed to relinquish their sovereignty over any particular river to Ohio, than Ohio would to the General Government, that argument would go to shew that the river was one which the United States had always intended to include in their reservation—because it is not to be presumed that Congress are any more grasping of power now, than they were at the time of passing and re-enacting the ordinance of 1787, or the laws that have been referred to. In short, Congress have no interest to retain, and therefore cannot be supposed to wish to retain, the control of any rivers except such as it is for the welfare of the whole country that they should retain: and all such they must be presumed to have intended to reserve by the ordinance and laws. On the other hand, it is evidently for the interest of Ohio, for obvious reasons, to get the control of all the rivers that she possibly can, both great and small, and to keep the control of all she can get. Congress, by reserving “all” navigable rivers within the territories that once belonged to the United States, have shewn that they intended, as they had an undoubted right to do, to retain in their own hands the power of judging what waters it will be for the interests of all to have remain “public highways.” The States therefore can claim authority over none of these “navigable waters,” except by virtue of express grants from Congress.
The intention of Congress, as to the extent of their reservations, may be gathered from the law of March 26, 1804, (Story’s Laws, vol. 2, p. 929, sec. 6,) in regard to the waters in the Indiana territory. In that law, they include every water, great and small, that can be called “navigable.” Their language is “all the navigable rivers, creeks and waters.” The Courts can make no exception where the law thus enumerates every thing. Congress have since made no special grants to the States of any of these waters. Every navigable one, then, still remains as the laws of Congress left it—that is, subject to the sole control and disposal of Congress.
But it is not necessary for our case, that we should insist upon this strict rule against Ohio, however correct the rule may be in itself. The Maumee, in its natural state, is navigable, not merely for rafts, but for keel boats of large size, and for small steam boats. It is also capable of being cheaply improved so as to be navigable by craft of an hundred or two hundred tons burden. Neither is the navigation confined to a downward passage. The boats used on it, pass and repass, upwards as well as downwards, a distance of more than an hundred miles.
Again—The Supreme Court of Ohio decided (5 Hammond 416) that the Muskingum was a navigable river, within the meaning of the ordinance—and that river is not materially, if any, larger than the Maumee.
So much for what constitutes a navigable river within the meaning of the reservations expressed in the ordinance and laws of Congress. There is another question, viz: as to what is a navigable river within the meaning of the Constitution, or within the decision in Gibbons & Ogden?
On this point there seems to be no limitation. The decision is that the power of Congress embraces the whole subject, “the entire result,” of “navigation among the several States.”—(page 209.) It of course embraces all rivers, however small, that extend into two States, and that are used and useful for “navigation.” The Court say, (9th Wheaton 197,) “The power of Congress, then, comprehends navigation within the limits of every State in the Union—so far as that navigation may be, in any manner, connected with commerce among the several States.”
In the legislation, which Congress has had in pursuance of their power to regulate “navigation among the several States,” we may also find a definition, sufficient for our purpose, of what constitutes a navigable river. In a law that was passed at the first session of Congress under the Constitution, (Story’s Laws, vol. 1, p. 40, sec. 22,) we find a provision for licensing vessels of only five tons burden. Whatever therefore may be said of still smaller streams, all that are capable of being navigated by craft of five tons burden, must be considered as rivers of the United States. The Maumee, in its natural state, is navigable for craft of five or ten times the necessary tonnage—and can easily be made navigable for boats of twenty or forty times that size.
In another law passed May 1st, 1802, (Story’s Laws, vol. 2, p. 873, sec. 4,) Congress authorized a Collector’s office at Marietta on the Ohio, and, in the words of the law, “established a district, to be called the district of Marietta, which shall include all the waters, shores and inlets of the river Ohio, on the northern side, and the rivers, waters and shores connected therewith, above or to the eastward of, and including the river Scioto, from the mouth thereof upwards as far as the same may be navigable.” Now the Maumee is a larger river than the Scioto—and the extent of navigation on the Maumce, and its several branches—the St. Mary’s, St. Joseph’s, Auglaize and Tiffin river or Bean creek—is probably twice as great as that on the Scioto. Now, although there may no longer be customs collected on rivers of the size of the Scioto, and some of the others embraced in this law, it by no means follows that Congress have surrendered their power over the navigation of them—because, according to the decision in Gibbons & Ogden, it is a part of the system adopted by Congress, to leave all navigation entirely free, which is not specially regulated. The system extends as much to what is left free, as to what is regulated—(9th Wheaton 209.) By the 8th section of this same law of 1802, that established the district of Marietta, (Story’s Laws, vol. 2, p. 875,) Congress enacted that “no duty on the tonnage of any boat, flat, raft or other vessel of less than fifty tons burden shall be demanded or collected,” &c., “on the Mississippi or any of its branches.” Now it cannot be inferred from this enactment that Congress intended to abandon, or surrender to the States, the control of all navigation carried on by craft of less than fifty tons burden, merely because they liberated such craft from tonnage duty. On the contrary, they intended to give a special protection to such craft against regulations, that would be more vexatious to commerce, than profitable to the nation. And when, by the 4th section of this law, (page 873,) they included the Scioto river within the Marietta district, it is not likely that they supposed that that river was navigated by craft of fifty tons burden, or that they expected to derive one dollar of duty from the navigation of that river—but that they only intended to secure to that navigation the protection of the laws, by putting it under the care and supervision of an officer of the general government.
This incidental mention of the Scioto river, in this law of Congress, is a test, sufficient for our purpose, of what constitutes a navigable river, and one from which, it seems to the complainant, there can be no appeal.
Again—If the regulation of the smallest craft that sails from one state into another, do not belong to Congress, it must belong to the states—and then Congress would not have “exclusive” power over “navigation among the several states.”
Again—The court say (9th Wheaton 194) that “commerce,” (or navigation, for commerce includes navigation,) “as the word is used in the constitution, is a unit, every part of which is indicated by the term.” And still again (page 215) the court say, “The subject of navigation is transferred to Congress, and noexception to the grant can be admitted, which is not proved by the words, or the nature of the thing.”
Further, still—It was decided, in Gibbons & Ogden, that commerce means not merely traffic, but intercourse also (page 189)—and that the power of Congress extends to vessels employed merely in the transportation of passengers, (page 215.) All rivers, therefore, that are of sufficient depth only for passenger boats, must be embraced by the power of Congress.
Again—The court say specially that “the deep streams, which penetrate our country in every direction, and pass through the interior of almost every state in the Union,” are embraced by the power of Congress, (page 195.) By “the deep streams” here mentioned, must have been meant simply navigable streams. Perhaps, however, it may be argued that no streams are here intended other than those that “penetrate the country” directly from tide waters. But this would be a very narrow view of the subject, and founded upon any thing but practical reason. Such a construction would take from Congress the control of navigation on all our great lakes. It would also take from Congress the control of navigation on the Mississippi and its branches, if there were but such an interruption of the navigation, by falls at the mouth of that river, as to make a transhipment of goods necessary, within the body of a state, from the tide water vessels to the river craft.
But the court have superseded all necessity for further argument on this point, and settled every question of power pertaining to the subject, by declaring, in the broadest terms, (page 195,) this doctrine, that the power of Congress extends to all navigation, except that which is “completely internal,” “within a particular State.” This doctrine covers the whole ground that the complainant contends for. It leaves nothing to be argued or questioned, except the simple fact, whether a particular navigation extends into two states?
In the laws of Congress, establishing Collector’s Districts, we have an evidence of their opinions in regard to the extent of their powers, for they include in those districts all navigable waters, down to those of the smallest capacity. As, for example, in establishing the district of Yorktown, (Story’s Laws, Vol. 2, p. 873, sec. 1,) they enact that that district “shall comprehend the waters, shores, harbors and inlets of north and east river,” “and all other navigable waters, shores, harbors and inlets within the county of Mathews.” In the law passed in 1789, at the first session of Congress under the constitution, (Story’s Laws, Vol. 1, page 6,) establishing Collector’s Districts along the whole Atlantic coast, we find that the smallest class of waters are considered as being under the control of Congress. As, for example, (on pages 12 & 13,) in establishing the several districts in Virginia, the enumeration, in one case, is, of “all waters, shores, bays, rivers, creeks, harbors and inlets.” In other cases, the enumeration is substantially the same. This minuteness of enumeration is significant. It shows the understanding of the first Congress to be, that their powers included every water, of whatever size, that could be called navigable. We see no good reason why the constitutional power of Congress over the interior “navigation among the several states,” should not be as comprehensive as over the exterior.
The navigability of the Maumee, to the extent set forth in the bill, is not attempted to be denied by the other side. On the contrary, one of the counsel for the state, admitted before the Circuit Judge, that he had himself seen a steamboat or steamboats on the river, within the distance described in the bill. Nor is it denied that this river has been constantly used, from the first settlement of the country, up to the present time, as the common and principal thoroughfare for the transportation of the produce and merchandize of the country, as set forth in the bill.
Further evidence of the navigability of this river may be found in a report, made in 1822, to the Ohio legislature, by the Hon. James Geddes, of New York, then an engineer of perhaps the very highest reputation of any in the country. He was employed by the State to examine and ascertain the best route for a canal to connect Lake Erie with the Ohio river. In his report, he said that a canal on one of the routes that had been contemplated by the State of Ohio, would find a “formidable rival,” in “the Wabash and Maumee navigation”—and also, that this navigation, aided by a canal connecting the two rivers, and by a canal around the rapids, near the mouth of the Maumee, would be the cheapest in proportion to its value, (that is, the best in proportion to its cost,) that could be had between Lake Erie and the Ohio river. [See history of Ohio canals, p. 44.]
In the first grant of land by Congress, for the purpose of this Wabash and Erie canal, a part of which Ohio is now constructing, we find evidence of the same fact. This grant was made to Indiana in 1824, [Story’s Laws, vol. 3, p. 1955]—and the grant was for a canal, not extending from the Wabash to Lake Erie, but only for one “to connect the navigation of the rivers Wabash and Miami of Lake Erie.” (The latter river, now called Maumee, was then usually called the Miami of the Lake.) This shews that both Congress and the State of Indiana considered the Maumee a navigable river—and that they supposed the navigation afforded by it would be sufficient for the wants of the country. But it would seem to have been afterwards found that if the river were used, a canal would have to be constructed around the rapids, near the mouth of the river—that is, from the Head of the Rapids, mentioned in the bill, to that portion of the river that opens into the Maumee bay. The consequence would be, that the navigation from each end of the navigable portion of the river—that is, from Fort Wayne westward to the Wabash, and from the Head of the Rapids eastward towards Lake Erie, would have to be by canal. If, therefore, the river, between the Head of the Rapids and Fort Wayne, were used under these circumstances, a transhipment of goods from canal boats to steamboats, and from steamboats to canal boats, would be necessary at each end of the hundred and twenty miles, for which the river is here navigable.* In order also to make the navigation of the river constant through the season, for boats of the necessary burden, some expenditures in improving the river would be necessary. The distance by the river would also be thirty or forty miles greater than by a direct route. It was undoubtedly for these reasons that it was deemed best to make a canal for the whole route from “the navigable waters of the Wabash to those of Lake Erie,” and avoid the necessity of transhipments altogether. And by a law of March 2, 1827, [Story’s Laws, vol. 3, p. 2064,] Congress made a further grant of land, and authorized such a continuation of the canal.† Now, in all this Congress have manifested no intention of surrendering their right to the navigation of the river—nor have they made any admission that the river was not navigable for this hundred and twenty miles. They have, at most, only expressed the opinion that in making a continuous and constant navigation from Lake Erie to the Wabash, it was not expedient to avail of this extent of river navigation, which was circuitous, and which, being situate between two sections of canal navigation, would require transhipments at each end. The first grant being merely for a canal to connect the Wabash and Maumee rivers, is conclusive evidence that both Congress and the State of Indiana considered the Maumee not only a navigable, but an important river.
But in fact, Ohio herself has admitted the navigability of this river, by forbiding its obstruction. The Legislature, on the 20th March, 1837, passed an act entitled “An act to incorporate the Defiance Bridge Company, on the Maumee river.” By this act they licensed the building of a bridge across the river, about three or four miles above the place where the commissioners now propose to erect their dam. And, in the 7th section of the act, they inserted this proviso, to wit: “Provided always, that the navigation of said river by steamboats or other craft, be not impeded or obstructed by the erection of said bridge.” [Local laws of Ohio, vol. 35, p. 279.]
We have now, we think, certainly produced evidence enough to make out this river a “navigable” one, within the meaning both of the ordinance and laws of Congress, and of the constitution. We will answer one or two objections, and then leave this part of the subject.
It has been argued, that because there is an interruption in the navigation by rapids near the mouth of this river, it is not to be held navigable above, although it is navigable in fact. But such a doctrine would shut up the Mississippi and its branches, if there were but falls at the mouth of that river. It would also shut up all the navigable lakes and waters above the falls of Niagara. The test of a navigable river is its usefulness for navigation. Falls at the mouth of a river may more materially diminish its usefulness then falls near its head—but unless they entirely destroy its usefulness, the river remains a navigable one for such distance as it is useful. Wherever the navigation of a river is interrupted by falls, the navigable portion above the falls, is, to all practical purposes, another river, and, as another river, its navigability is to be tested by the same rule that the navigability of other rivers is tested—that is, by its usefulness. The only reasonable doctrine then, and the only one consistent with the principles on which the law of navigable rivers is founded, is this, that where a river, in any portion of its course, is navigable for such a distance, and to such a degree, as to be useful for navigation, it should, for such distance, be held navigable in law. The Maumee, above the rapids, is, in its natural state, navigable continuously, and without interruption, for more than one hundred miles. This distance, we suppose to be amply sufficient for all legal purposes. But it also—as ought to have been set out in the bill—has four navigable branches, which fall into it between the Head of the Rapids and Fort Wayne: These branches are the Auglaize, Tiffin river or Bean creek, the St. Mary’s, and St. Joseph’s rivers. These branches are navigable, several months in the year, for boats of considerable size, about fifty or sixty miles each—thus making, with the main river, between three and four hundred miles of continuous navigation. The complainant, however, does not rely upon the navigability of these branches, (if the other party object to it,) because it was not set forth in the bill—still, he is ready to produce what will probably be satisfactory evidence of the fact to the court, if the court desire it.
It may perhaps also be argued, that because the navigation of the river is impeded by low water during a period in the summer, it is not to be considered navigable. But it is believed that the navigation by small boats is at no time suspended. Still, if it were, it is not seen how that could affect the question. The test of usefulness, before referred to, is applicable to this case, as well as to all others. If, then, the river is navigable for such a length of time, as to be useful for navigation, that is sufficient. That such is the case here, there is no doubt. The River is navigable so as to be highly useful at least six or seven months in the year. Its usefulness is proved by the fact that it is used—a kind of proof from which there is no appeal. The Ohio river, for a considerable period in almost every season, is so low as to be very nearly, if not entirely useless for navigation—but will it be said, that therefore the Ohio is not a navigable river in law?
In addition to all the evidence that has been presented, of the navigability of this river, we have found two acts of Congress, specially embracing this river. These acts were not discovered until all the preceding evidence had been prepared. Although we suppose these laws would alone have been sufficient for our purpose, we have thought best, even at the risk of being tedious, to present the evidence already given, in order to place the matter more entirely beyond the reach of any possible objection.
By a law of Congress, passed March 3, 1805, (Story’s Laws, vol. 2, page 973) establishing certain ports of entry, it is provided (Sec. 3) “That from and after the thirty-first day of March next, all the shores, rivers and waters of Lake Erie, within the jurisdiction of the United States, which lie between the west bank of Vermillion river, and the north cape or extremity of Miami Bay, into which the river Miami of Lake Erie empties itself, and including all the waters of the said river Miami, shall be a district to be called the district of Miami,” &c. (The Maumee, it will be recollected, was formerly called the Miami of the Lake.) No objection can be taken to this law, on the ground that the whole river was not then within the “jurisdiction” of the United States, for, although the United States had not, at that time, extinguished the Indian title to all the lands in Ohio, yet they had previously extended their “jurisdiction” over the territory. The State of Ohio had previously been admitted into the Union, with the same limits that she has now, which include a large portion of this river.—(See 2d sec. of Law of Ap. 30, 1802—Story’s Laws, Vol. 2, p. 869.) Congress had also, two years before, by a law passed Feb’y. 19, 1803, (Story’s Laws, Vol. 2, p. 882,) “to provide for the due execution of the laws of the United States within the State of Ohio,” enacted “that the (whole of) said state shall be one district, and be called the Ohio district,” &c. “All the waters of the said river Miami,” it will be observed, are also included in the law of 1805, establishing the “district of Miami.” The portion above the rapids is therefore included as well as that below.
As early also as March 2d, 1799, (three years before Ohio had any state rights,) Congress passed an act, establishing various districts and ports of entry, (Story’s Laws, Vol. 1, page 573,) and among others (page 585; sec. 17) they established one to be called the district of Erie, which it was enacted should include, among other waters, “the river Miami of Lake Erie.” (It appears also, that by this (pages 585 & 586,) and a subsequent act, (Vol. 2, page 873, sec. 4,) all the rivers of Ohio, many of which are much smaller than the Maumee, have been, and, so far as we know, still remain, included in the districts that have been established.) It was also provided by this act of 1799, (sec. 105, page 661,) that navigation might be carried on in the above districts, “in vessels or boats of any burden, and in rafts or carriages of any kind or nature whatsoever.” This shows that Congress consider their power as extending to the humblest kind of navigation.
The Complainant supposes that these acts settle all questions, both in regard to this river’s being a navigable one, and also in regard to Congress having extended their power over it. They also constitute a seventh distinct ground, on which the complainant supposes he might safely rest his case.
We will now pass to another question.
It was argued before the Circuit Judge, that Congress, by licensing the construction of this Wabash and Erie canal “through the public lands,” had impliedly given Ohio permission to obstruct this river with a dam, if it should be found convenient or necessary in the construction of the canal. But Indiana (nor Ohio, who has since taken the place of Indiana, in regard to such portions of the canal as lies within the limits of Ohio,) cannot, of course, claim by virtue of that act, to use or convert any more of the property of the U. S. to the purposes of the canal, than she was specially authorized to do by Congress. Now all the authority over the property of the U.S.—(in additiou to that of constructing the Canal “through the public lands of the U. S.”) that was granted to Indiana by the acts of Congress relating to this canal, was simply this. She was “authorized, without waste, to use any materials on the public lands adjacent to said canal, that may be necessary for its construction.” (Act, of 26th May 1824, Story’s Laws vol. 3, page 1955, and act of March 2, 1827, Story’s Laws vol. 3, page 2064.) It will be observed, on reference to these acts, that this grant of permission to go upon the lands of the U. S. and “take materials,” was given only by the first of them. And the second, if construed strictly by its terms, would seem to have been an entirely new grant, and on new terms; instead of an additional grant on the old terms. In this latter view of the case, the State would not be entitled even to go upon the lands of the U.S. adjacent to the canal and take “materials,” for no such permission is given in the last act. And it is very likely to have been the intention of Congress that this should not be done—for, as by the last act, every alternate section of land, along the whole line of the canal, was granted to the State, it was not likely there would be any great necessity for the State’s going off her own sections for materials. But, however this may be, the State cannot, at any rate, enlarge the license beyond the terms of the first grant. These were simply to go upon the public lands adjacent, and take “materials.” If a State, under such a license as this, can take a legal right to obstruct, or, what is the same thing, appropriate, any portion of a navigable river, it may, on the same principle, appropriate the whole river to the purposes of the canal. This conclusion follows inevitably. And thus, according to this doctrine, whenever Congress—partially with a view of raising the price of the public lands—passes a law licensing and aiding a State to construct a Canal through them, the State, instead of constructing the canal “through the public lands,” according to the intentions and law of Congress, may make at once for the nearest or most valuable navigable rivers of the U. S.—seize upon them—dam them up at intervals, and thus convert them into State property, and levy contributions upon the navigation of the whole U. S. for the privilege of passing over them.
Again. The grant was of a privilege to construct a canal “through the public lands.” Navigable rivers are not “lands,” in legal contemplation—they are not included in surveys, or sold as lands by the acre. It is otherwise with rivers not navigable.
Again. No real or supposed necessity, if there were any, (as in this case, none is pretended, or at any rate proved—the location of the canal in the present position being evidence only of convenience not of necessity,) could avail to enlarge the terms of the grant. The grant was conditional—and like other grants by statute, was in the nature of a written contract—not to be enlarged by implication. The U. S. would give so many “lands,” on condition that Ohio (or Indiana) would construct such a canal, and in a particular place—that is “through the public lands.” If those lands, with her other resources, are insufficient to enable the State to comply with the proposal of the general government, or if the location proposed by the general government be found impracticable, then the State must decline the offer, or solicit a further grant. She can no more claim, as a matter of legal right, that the U. S. give her a navigable river, or any portion of one, in addition to the original grant, in order to enable her to complete the canal, than she can that they give her an hundred thousand dollars in money, or an additional quantity of “lands.”
Again. It is unreasonable to suppose that Congress anticipated that the navigation of this river was to be obstructed—and for this reason, if for no other, that in constructing a canal from the navigable waters of the Wabash to Lake Erie, it is necessary to go out of a direct course, in order to cross this river.
But even if a grant had been made for a canal “through the public lands,” from a point on one side of a navigable river, to a point on the other side, so as that Congress must have known that the canal boats would have to cross the river, still no grant could be implied of an authority to obstruct the river—and for two reasons—first, because the grant was literally to construct the canal “through lands” only, and could not be enlarged by implication—and, secondly, because it would be unreasonable to suppose that any necessity could exist for constructing a canal in the river, inasmuch as a boat would ordinarily be presumed capable of crossing a navigable river, without the aid of any artificial structures sufficient to impede the navigation.
Again—When a river has been specially declared a “public and common highway,” (as all navigable rivers in the N. W. Territory have been,) canal boats, if they have occasion to cross them, have, by the already existing law, a right to use or cross them, as highways, and in common with other boats—but they can by no means claim that this “common and public highway for all citizens of the United States,” specially established by law, has been abolished for their sole benefit, unless they show an express law to that effect.
But it was argued that Congress must have known that water would be wanted for this canal, and that therefore they must be presumed to have intended that navigable rivers should be obstructed, if necessary to obtain it. One answer to this is, that this question, like all others, must be settled by the terms of the grant—which were for the canal to go “through lands” only. Rivers and streams not navigable, are “lands,” and it is reasonable to suppose that Congress believed there were enough of these to feed the canal. Besides, if the Commissioners wish to take water from a navigable river, they have a right to do so, by means of a wing dam, that shall not extend so far into the stream, as to be any impediment to navigation. Or they may take it out by deep cutting through the bank, provided always they do not take out so much as to impair the navigation of the river. A riparian owner, on a fresh water stream, has a right to do thus much for his own use.
It was argued in the Circuit Court, that because Congress had made a grant of lands (May 24, 1828, Story’s Laws, vol. 4, page 2141) to aid in constructing another canal (called the Miami canal) from Cincinnati and Dayton to Lake Erie, in partial compliance with a memorial presented to Congress three years before by the Ohio Legislature, (See Memorial in History of Ohio Canals, page 170,) which canal forms a junction with the Wabash & Erie canal above the place where it is proposed to cross the river—therefore Congress have impliedly granted liberty to obstruct this river. But it will be remarked that in this memorial the Legislature gave Congress no intimation that the river was to be crossed, or even touched by this Miami canal. They only describe the route as “commencing at the city of Cincinnati, and terminating at the foot of the Rapids of the Miami of the Lake”—that is, on the Lake level, for the foot of the Rapids is on the Lake level. They also mention certain counties through which it will pass. But all these counties lie, in whole or in part, on the south side of the river—that is, on the same side with Cincinnati and the main body of the canal. In order therefore to construct the canal through these counties, and terminate it at the foot of the Rapids, as indicated in the memorial, it was not necessary to touch the river except at its termination—and of course it was not necessary to cross it there—for they would there form a junction with the Lake navigation without crossing the river. Congress therefore derived no intimation from this memorial, that the river was to be crossed. The object of the Legislature too, in presenting this memorial to Congress, was, not to obtain permission to cross the river, but simply to obtain a grant of “lands,” and liberty to go through those of Congress. Besides, as an inducement to Congress to make these grants, they say (page 171) that the lands of Congress, through which the canal will pass, will be “much increased in value, and command an enhanced price when they shall be brought into market.” Now this enhanced value, which is urged on Congress, by the Legislature, as an inducement to the grant, could not apply to navigable rivers—because a navigable river would not be “much increased in value,” by having its navigation destroyed or impaired. Neither the grant, nor the memorial, therefore, can be understood as applying or referring to any thing but “lands.”
Congress finally made a grant of lands in aid of this Miami canal, and of liberty to go “through the public lands”—(May 24, 1828, Story’s Laws, vol. 4, page 2141)—but the grant extended, at most, only to the Maumee river, “at the mouth of the Auglaize,” which is on the south side of the river. And it is evident that Congress considered it doubtful whether the canal would extend even so far as to the Maumee river—for the grant is of a certain quantity of land “on each side of said canal, between Dayton and the Maumee river, at the mouth of the Auglaize, so far as the same shall be located through the public lands.” So that, at any rate, here is no permission given, either expressly or impliedly, to obstruct the river.
It may perhaps be argued that the canal, which Ohio is building, will be a better channel of communication than the river, and that therefore there is no harm in shutting up the river. But it may be very well doubted, one would think, whether a canal, on which boats must pay toll, and also travel at a slow rate, is a better channel than a river that is free, and on which, when it is in a navigable condition, boats may move at any speed they please. But even if the canal were the better channel, that would not alter the legal complexion of the case at all. A man has no right to shut up a public highway, merely because he has opened a better way through his own land, on which he offers to let people travel on paying him toll.
We will now take it for granted that we have established the point that Ohio has no right to erect any structure that shall actually and entirely shut up or destroy the navigation of this river.
But another question here presents itself, viz: whether the State of Ohio, without the consent of Congress, can, under any pretence, or for any purpose whatever, legally assume the power of placing in this river a dam, provided they put a lock in it, and tend and open the lock, for the accommodation of the passenger? The discussion of this question has been rendered necessary by one part of the decision of the Supreme Court of Ohio, in the case before referred to, of Hogg vs. Zanesville Co., (5 Hammond 417.) The court there decided that, although the right of way over that river was the common property of the people of the whole United States, yet the State of Ohio had a right to license the erection of a dam across it, provided a lock were put in the dam, and promptly tended and opened for the passenger. We suppose this part of the decision is clearly erroneous—for the reason that if Ohio have not the sovereign power over this right of way, she has no power whatever to license any interference with, or obstruction in it. But although we suppose there is really no necessity for argument on this point, we will cite the opinion of the Supreme Court of Massachusetts, as given in Commonwealth vs. Charlestown, (1st Pickering, page 184.) The court there say “none but the sovereign (legislative) power can authorize an interruption of such passages, because this power alone has the rightto judge whether the public convenience may be better served by suffering bridges to be thrown over the water, than by suffering the natural passages to remain free.” And again, in the same case, (page 185,) “There must be some act of sovereign power, direct or derivative, to authorize any interruption of them.”—The principle which, in this case, was held to apply to bridges, would apply equally to dams, because the public would be incommoded by dams, unless the locks were opened, in the same manner that they would by bridges if the draws were not raised.
It was held in this case in Massachusetts, that the State Legislature was the “sovereign power” over the navigable river then in question. This part of the decision may or may not be correct. The decision was given before that in Gibbons & Ogden, and no question was raised, either by the counsel or the court, as to whether the control of their waters had not been surrendered to congress by the constitution; nor do we know whether the waters over which this bridge was built, were accessible from the waters of any other State. We therefore can neither admit nor deny the correctness of that part of the decision, which assumes that the State Legislature was the “sovereign power” over them. We cite the opinion only in support of the principle, that the consent of the “sovereign power”—in whatever hands it may in any particular case reside—must be obtained in order to justify bridges with draws, or dams with locks, across navigable rivers.
It has been shown, we trust, in the former part of this argument, that whether the old States still have, or have not, the sovereign power over their streams, those States that have been formed out of territory that once belonged to the United States, have not the sovereign power over the navigable streams in their limits; but that the United States are still the sovereigns over, and have the exclusive control of, all navigable waters in these last mentioned States—that is, so far as navigation over them is concerned. The State of Ohio, then, having no sovereignty of her own over the navigable streams within her limits, and having never had any discretionary power over them delegated to her, to authorize her to license dams or other obstructions on such conditions as she may see fit, she has no right to authorize them in any way, or on any conditions whatever. By thus licensing them, as in some instances she has done, she has been constituting herself the attorney of the United States—has been assuming to act for the United States, and has in reality been usurping an unauthorized discretion and control over the property of the United States. She has no more right to assume this discretion, than the same number of any other individuals have. She has no more rightful authority over the navigable rivers of the United States, than she has over the post offices of the United States within her limits. All her legislative acts, therefore, authorizing individuals to construct dams across the navigable rivers of the United States, are utterly and palpably void—and it is of no consequence what securities she took from those individuals, that the locks should be opened, or what penalties she imposed for neglect to open them. Her whole legislation on the subject has been a work of supererogation. She might, with as much propriety, have assumed the power of licensing an individual to lock up the post offices or court houses of the United States within her limits, on taking from the individual so licensed a promise that he would open them again at all proper times, or on affixing such penalties to his neglect to open them, as she might think would prove sufficient to induce him to open them. And her statute penalties for neglect to open locks in a dam that she has licensed, are as void as would be her statute penalties for neglect against the individual before supposed, whom she should license to lock up the post offices and court houses of the United States, or as would be her statute penalties against trespasses upon the public lands within her limits. She is in no way the agent or attorney of the United States, either for affixing the penalties to trespasses upon the property of the United States, or for granting licenses to individuals to occupy, enjoy or control the property of the United States;—whether that property consist of navigable rivers, post offices, court houses, wild lands, or any thing else.
The inconsistency of the State Court is most obvious. They admit, in the case referred to, (5 Hammond, 416) that the “navigable rivers” of Ohio are “common highways”—that “every citizen of the United States has a perfect right to the free navigation of them”—and that “with this right the Legislature cannot interfere.” They admit also, (pages 421 and 423) that a dam, with a lock, is, of itself, a nuisance; And still they say that the Legislature of Ohio, who, they assert, have no power to “interfere with this right of way,” can yet cure a nuisance in it, or, what is the same thing, maintain a nuisance in it. The error of the Court consists in assuming for the Legislature of Ohio, a discretion over a highway belonging to the United States. On this principle, the State Legislature would have a discretionary power over all property of the United States, that should happen at any time to be within the limits of Ohio.
The State of Ohio, then, has no right to license the erection of a dam by individuals, on any conditions whatever, across a navi gable river within her limits, over which the United States, or the citizens of the United States, own the right of free navigation. Not having the right to license the erection of such dams by individuals, has the right to erect them herself, on any conditions whatever, without the consent of Congress? It is difficult to imagine how she can have the power to build them herself, when she has not the power of licensing them to be built by individuals. A dam that should obstruct the navigation, unless it were authorized by the sovereign power, (which in this case is Congress) would be as clearly a nuisance when erected by a State, as when erected by an individual. It would be as clearly a trespass for a State, or persons acting under State authority, to injure a post office or court house, belonging to the United States, as for a mob or an individual to do it. It is, therefore, difficult to conceive how the State of Ohio can interfere with, or exercise any more control over this right of way belonging to the U. States, than an individual, or than the same number of other individuals, citizens of the United States, as those composing the State of Ohio, might do. This right of way is the common property of all the citizens of the United States: as much so as are the mails and post offices in the State of Ohio; and as such, it is under the exclusive control of Congress. Neither the citizens nor State of Ohio have any peculiar property in it, or control over it. Ohio, in short, stands on the same level in relation to this public right of way, that an individual does. She is in no way known in relation to it, in her capacity as a State. Her citizens are but so many citizens of the United States, having privileges in common with the other citizens of the United States, in the use of this river; but having no peculiar property in, or control over it. Congress have the sovereign power over this right of way, and there is no secondary or subordinate power over it, resting in the State of Ohio. There are, in fact, no intermediate rights, either of property or use, to this river, between those of the United States on the one hand, and those of the riparian owners on the other. The United States own the right of way over these streams, and the riparian proprietors own (subject to the right of way) every thing else that pertains to them as streams. They own the bed of the streams, the right to fish, and the right to use the water, as it flows over their lands. And there are no intermediate rights between those of these two owners. None such are any where expressed, or necessarily implied. They therefore do not exist. Now Ohio may take, for the public use of the State, any property of her own citizens; but she can take no more than the property of her own citizens. She cannot take the property of the United States. In regard to these streams, therefore, she can assume only those rights of property and use, which belong to the riparian owners. She cannot enlarge those rights, without encroaching on the rights of the United States, because the riparian proprietors have all the rights of property pertaining to these streams, except what belong to the United States. There are no intermediate rights in existence. Now a riparian owner confessedly has no right to put a dam across a navigable river. The State Court expressly declares such to be the fact, in the case before cited, (5 Hammond 421 and 423.) The State of Ohio then, of course, can have none, because she can have no larger or other rights of property or use in the stream, than those she took from the riparian owner. Dams, then, that should be erected by the State of Ohio, would be as much nuisances, as those that should be erected by the preceding owner.
In order to support the views of the other side, upon this point, it would be necessary to show, that, between the right of way, (belonging to the United States) on the one hand, and the rights of the riparian proprietor on the other, there existed an intermediate right—that of damming up the river: And that this right of damming belonged, or might belong, to a third party—(which party, in this case, is the State of Ohio.) But who ever heard of the right of damming, as existing separate from all the other rights pertaining to navigable streams? Surely no one. The right of damming, or of keeping open a river, is a necessary incident to the right of way—otherwise the owner would have no security for the enjoyment of that right. The way might be dammed up and obstructed, and he would be without remedy. The right of Congress, too, “to regulate navigation among the several States,” includes necessarily a right to keep open navigable waters—otherwise “navigation among the States” might be defeated by the States, in defiance of Congress. This Court virtually asserted the same doctrine, at its last term, in case of U. S. vs. Combs, (12 Peters 78) where it said, that “any offence, which interferes with, obstructs, or prevents commerce and navigation (among the States) may be punished by Congress, under its general authority to make all laws necessary and proper to execute their delegated constitutional powers.”
But it is said that if there be a lock in the dam, and the lock be really tended and opened promptly for the passenger, there is no nuisance. But would such a dam be a nuisance, if it were erected by an individual, without his being specially licensed by the sovereign power—the owner of the right of way? Most certainly it would. The State of Ohio has repeatedly said so, because she has repeatedly assumed to be the sovereign power, and to give or withhold licenses to individuals to build such dams, thus virtually declaring that the dams of individuals would be nuisances, unless specially authorized by the sovereign power. The State Court also says the same (5 Hammond 421 & 423)—the Massachusetts Court says the same of bridges, (1st Pickering 184; 2 do. 39; 4 do. 460; 9 do. 142;) all Courts say the same. Yet, in no respect, as has before been shewn, does a dam erected by Ohio, or licensed by her to be erected, across a navigable river of the United States, without authority from the sovereign power, (that is, Congress,) differ from one erected by an authorized individual.
But, admitting for the sake of the argument, that if the lock were tended and opened, there would be no nuisance—still, the question, even then, whether there be or be not a nuisance, is made to depend entirely upon the contingency of the lock’s being opened. Now the lock will not open itself—and we cannot know beforehand that any individual will open it—and yet, unless it be opened, it is admitted to be a nuisance. So that the public enjoyment of the right of free passage, in this case, is made to depend entirely upon the mere will or ability of some person, who is unknown to the law, to open the lock, or, what is the same thing, his mere will or ability to make a passage.
What then is the amount of this doctrine, that if the lock be opened, there is no nuisance? Why, it is this, that any unauthorized person, or at least any riparian owner, may, of his own mere motion, erect a structure, which is, of itself, an obstruction, in a navigable river belonging to the United States, and compel all the citizens of the United States to depend, for their passage over their own “highway,” upon his mere will or ability to remove that obstruction, (that is, open the lock, or make a passage,) whenever they may wish to pass. The law cannot remove the obstruction, until the intentions of this individual, in regard to opening it, have been judicially inquired into—and if it should be found that his intentions probably, (for they could not be ascertained certainly,) are to remove the obstruction, (that is, open the lock,) whenever it may become necessary, then the obstruction itself must remain. The public, in the meantime, that is, until they actually arrive at the lock with their freight, must be content to derive such consolation as they can from what has been judicially decided, or, more properly, judicially conjectured, to be the man’s intentions in regard to opening it. When they arrive there, if he open the lock, well—but if they find that his intentions have been mistaken, that he intends not to open it, why then they must either make their way through by force, or let their freight remain where it is, until the obstruction shall be removed in due process of law. And then, if they have suffered any damages by the detention, they must recover them of the man, who erected the dam—provided always he remain where he can be reached, and have the means of paying damages—for otherwise, the sufferers must pocket their loss. All this they must submit to, merely because the law chose rather to occupy itself with what it was pleased to conjecture might be the man’s intentions, than to take notice of such material things as dams, locks and obstructions in a “common highway.”
Such is the whole amount of the doctrine that any person or State, unauthorized by Congress, can possess themselves of the right to shut up the “common highways,” the “navigable rivers” of the United States, by merely expressing intentions to open or make a passage, whenever the citizens of the United States may wish to pass. Such a doctrine would take the rights of the whole citizens of the United States out of the keeping of the laws of the United States, and expose them to become the sport of contingencies, resting in the mere will or ability, in the undiscoverable intentions, in fact, of individuals unknown to the law. Is it possible that, after having had our rights guarantied to us by the paramount law of the country, they can be lawfully seized upon in this manner, by any subordinate power, that may please to do so, and we be thrown back, for our enjoyment of those rights, upon the mere will and pleasure of unlicensed and unknown persons? The idea is preposterous. If such a doctrine were to prevail, any unlicensed individuals might put chevaux de frize across the Bay of New York, and compel every vessel that should come in, to depend upon them to open and make a passage. They would have as much right to put such an obstruction across the Bay of New York, or across the Mississippi river, as across the Maumee river—and any indifferent or unknown persons would have as much right to do it, without the consent of Congress, as would the state of New York, or the states lying on both sides of the Mississippi.
But it may be said, (it is in fact so said by the State Court,) that if the lock should actually be opened, no one is injured. For the sake of the argument, be it so—but if it be not opened, then some one is injured. Now, since the opening of the lock for the passenger, is an affair to take place at some time subsequent to the erection of the dam, and as we cannot know whether the lock will be opened, until it actually is done, there is all the time from the erection of the dam to the opening of the lock in every individual case, during which all the rights of the public to a free passage, are in a state of uncertainty—they are not in the condition in which the law left them, but are in the keeping and at the mercy of the mere intentions and non-intentions of an irresponsible usurper. The community hold their rights on sufferance from this usurper—and if the doctrine we are arguing against be true, these rights cannot be taken out of his keeping, until he has further violated them by actually delaying men on their passage. This whole doctrine is pre-eminently absurd. It is as illegal for any man, or any individual state, thus to usurp the keeping, the custody, of the rights, which belong to men by virtue of the laws of Congress, as it is to actually trample upon those rights. It is a violation of those rights, to take them out of the keeping of the laws of the United States, and assume the custody of them to themselves. A man, who should without license, take his neighbor’s money, might, with the same propriety, say: “Why, surely there is nothing illegal or wrong in my simply taking this man’s money, for he may rest assured it is my honest intention to return it to him whenever he needs it. I will not delay a moment to do so, whenever he says he wants to use it. But, until he does want to use it, he certainly ought not to object to my keeping it, and deriving what benefit I can from it to myself—especially as there will not be the least harm done to him, if I do but return it to him, as I intend, when he calls for it.” An individual, who should take such liberties with his neighbor’s money, would be treated by the laws as a thief, (unless, perchance, his reasoning should be considered sufficient evidence of his insanity.) The laws would restore the money to the custody of the rightful owner, whether he wanted it for actual use or not, and without compelling him to wait and see whether the thief would restore it voluntarily, when it should be wanted. Still, the reasoning of this thief would be but a fair parallel to the doctrine, that would make it legal for an individual or for a single state to assume the keeping of the rights of the citizens of the United States, to a free and unobstructed passage over the navigable rivers of the United States, (by putting dams across them,) on merely expressing intentions to restore the navigation, or open and make a passage, whenever those citizens should wish to pass.
According to this doctrine too, any individual State might seize any treasure of the U. S. within its limits, and be supported by the laws in keeping the possession of it, until the General Government should want it for actual use, on the State’s merely expressing intentions to restore it whenever it should be thus wanted. A State might seize upon a sub-treasury of the U. S. within its limits, if we should ever have any, lock it up, appoint agents to keep the keys, and compel the sub-treasurer to depend upon these State agents for the means of going into his own office. A sub-treasury of the U. S. would not, by law, be more under the exclusive control, or in the exclusive keeping of the laws and agents of the U. S. than are the navigable rivers of the U. S. in the keeping of the laws of Congress, and of those citizens who wish to use them for purposes of navigation.
On the doctrine too, that we are contending against, any individual, or any agent of any one of the States, might go on to Washington, and nail up or lock up the doors of the Capitol, or of the Supreme Court room, twenty times in a day during the whole sessions, (if there were sufficient cessations of passing to give him time to do it so often,) and the laws would protect him in thus nailing them up, and in keeping them thus nailed up, until the members of Congress, Judges or others, who had business there, should actually arrive at the doors and demand admission. And even then the individual would be entitled to a reasonable time in which to open them, because, if he have the right to shut them in that manner, he of course has a right to the necessary time for opening them again—and during all such time as should be necessary for opening them, the Judges, members of Congress, or other persons at the door, must wait for admission. And if he should choose to not open them at all, then they themselves must force them open, or send for some one to do it, or wait until they can be opened by legal process.
Such is the legitimate issue of this doctrine, that individuals, or individual States, have a right to assume the custody of the property of the United States, without being first licensed by the Government of the United States. The judges of the Supreme Court have no clearer right, under the laws of the United States, to an entrance into the court room, free from all let, hindrance, impediment, or interference, from all irresponsible and unlicensed persons and powers whatever, than have boats engaged in commerce to pass thus freely upon a navigable river belonging to the United States, which Congress has declared shall be a “public highway” for all citizens of the U. S.
But it will perhaps be said that if the persons, who should build a dam across a river, should but for once neglect to open the lock, or should but for once delay the passenger, the lock or dam might then be removed as a nuisance. But why then, any more than before? If the persons were but to renew their intentions of opening it in future, would they not have just the same right to keep it up that they had in the first instance? Most certainly they would, if, as is contended, their rights to keep up the lock can, in any case, depend upon their entertaining an intention to open it. And if their rights to keep up the lock do not depend upon their intentions to open it, they certainly have no right to keep it up at all—for they, of course, have no right to keep it up with the intention that it shall remain unopened, and obstruct the passenger.
But again—as to the legal effect of men’s intentions. Has a man a right, without my consent, to come upon my premises and erect a gate before my door, on merely expressing intentions to open it whenever I may wish to pass through? Or would he have a right to maintain his gate there, if he should actually stand by it at all times, and invariably open it for me, so as never to cause me a moment’s delay? Most certainly not. The law will not compel me to depend, for my free ingress and egress, upon any assurances, which either the man’s words or actions, though never so strong or never so often repeated, may give. The law will forbid him to erect any thing, which, of itself, if let alone, will obstruct or incommode my free passage. Yet the contrary is the amount of the doctrine of the other side.
Or again. Has an individual a right, without the consent of the State, to erect a gate across a highway, or across a railroad belonging to the State, on merely expressing intentions to open it whenever the citizens of the State, or cars belonging to the State, may wish to pass? Has the man’s intentions any thing to do with his right to thus place a thing, which is, of itself, an obstruction, across a way that does not belong to him? Certainly not. No more right has Ohio to put such an obstruction across a way belonging to the United States, without first obtaining the consent of Congress.
The only way, then, of determining what is, and what is not a nuisance, in a navigable river, is to look at the nature of the obstruction itself, without any regard whatever to the intentions which those who erected it, may have concerning it. If the passage itself be shut up or obstructed thereby, then, unless the structure have either been authorized by the sovereign power, or have, within itself, the mind, will and ability to remove itself, to make way for passengers, it is a nuisance. Tried by this test, a dam with a lock is as clearly a nuisance as a dam without a lock. The stream is, for the time, as much shut up in the one case as in the other—for a lock will no more open itself for the passenger, than a dam will fall down of itself to make way for him. The natural navigation too—the “highway,” established by Congress, is as completely and utterly destroyed by a dam with a lock, as by a dam without a lock. All that can be said in favor of the dam with a lock, is, that it contains certain artificial facilities, that may be used as a substitute for the legal “highway.” That is, it contains certain facilities for opening a private way (for a lock being private property, is a private way) for the accommodation of those passengers, against whom the legal “highway” has been closed. But an unlicensed person has no right to obstruct a “public highway,” on merely putting gates in his own fences, so as to afford facilities for men’s passing through his private grounds. Yet such is the amount of the doctrine we oppose.
Again: The doctrine that a dam and lock may be put in a river, without license, if the lock be afterward opened for the passenger, is equivalent to saying that unlawful acts may be done on conditions subsequent to the acts, On such a principle, the law could not take notice of an unlawful act so soon as it was committed; but must wait to see what the offender will do next; and whether he will not voluntarily repair his wrong.
Again: It appeared, in the case before referred to, (5 Hammond 421) that the proprietors of the dam could not open the lock, (until the freshet had subsided,) by reason of the sand and drift wood, with which the freshet had clogged it. All dams are liable to the same objection. To say, therefore, that a dam and lock may be built in a highway of this kind, without license, is to say, that an obstruction may be placed in it, that may, in some cases, be incapable of removal.
Again: The doctrine that a State may put dams across the navigable rivers, or “common highways” of the United States, on condition that locks are put in them, is equivalent to saying that the State, on certain conditions, but without the consent of Congress, may seize such rivers or highways, and take them out of the possession of Congress: For the erection of dams across them, by which passengers are made to depend for their passage upon the will of the State, or of the agents of the State, instead of the will and laws of Congress, is to all intents and purposes, a seizure of the river. If I lock up the doors of a man’s house, and put the key in my pocket, does not that act constitute a seizure of the house? And suppose that, in order to accommodate the occupant, I open the door for him whenever he wishes to pass through, and shut it after him when he has passed through, does that alter the case at all? Is not my possession as illegal as though I refused him a passage altogether? Most certainly it is. I have taken such possession of his house, that I can, at will, prevent his ingress and egress, and he holds the enjoyment of his own property, merely on sufferance from me. Such possession on my part is illegal. So in the case of a dam built by Ohio, across a river of the United States—even if she could let boats through without any delay at all, (instead of one of five or ten minutes, as will really be the case at best,) still she would have no right whatever to thus take possession of what belongs to the United States, and compel the citizens of the United States to depend upon her will for the enjoyment of the privileges which they hold under the laws of Congress, and the Constitution of the United States.
The reason, and in fact the only reason, that the State Court gave for its strange opinion, was, (page 415,) that “the Legislature supposed they possessed this power.” The reason is almost as strange as the opinion, which it is designed to support. Are the State legislatures invested with judicial powers, to decide legal questions arising under the Constitution and laws of the U. S?—Are their acts or opinions of any more consequence, in a legal point of view, than are the acts or opinions of any body else? It is true that some of the State Legislatures, before the decision in Gibbons and Ogden, and perhaps since, have in some instances authorized bridges and dams across rivers—and these bridges and dams may have been tolerated—but it must have been because the people did not understand their rights, or because no one individual was sufficiently damaged to induce him to assume the expense and vexations of a suit. The fact, that such bridges and dams have been tolerated, furnishes no argument in favor of their legality.
Again. If the law had been that any riparian owner, or any corporation or individual subordinate to the sovereign power over navigable rivers, could without obtaining the consent of that sovereign power, put dams across them, on merely putting in locks and expressing intentions to open them, we should doubtless have had innumerable cases of the kind, (because there must have been strong inducements to build such dams for the purposes of water power,) and we should also have had numerous judicial decisions in support of these dams—but no such decision, where this point has been directly put in issue, has been produced, (or rather was produced before the Circuit Judge,) except this solitary one in the Ohio reports—(5 Hammond 410.) and even this decision is self contradictory—for one part of it is, that “the Legislature cannot interfere with this right of way”—while another part is that they can maintain a nuisance in it.
But further. It is admitted, on all hands, that no individual, not even a riparian owner, would have any right, without the consent of Congress, to put a dam across a navigable river of the U. S. however many locks he might put in it, and however well he might tend and open them. The State of Ohio stands on the the same, level, in this respect, with an individual. She has no rights, except those she takes for the public use, from individuals. Besides, all powers subordinate to a sovereign power, are on a level with each other, in the view of the laws of that sovereign power. But the case here is even a stronger one, if possible, against the right of a State, to put a dam across a navigable river of the U. S., than against the right of an individual, because in the case of an individual, if he did not open the lock, he would be liable to an action for damages, and probably exemplary damages would be given. But no redress could be obtained against a State, that should neglect or refuse to open the locks, because a State cannot be sued, and a sufferer would therefore be entirely without remedy for any loss he might sustain by the obtruction. Neither could damages be obtained against agents of the State, because the State might, if it pleased, refuse to appoint agents to the duty of opening the lock. The State also, in this case, would have a strong motive to refuse to open the locks, because by so doing they would compel passengers to go in their canal, instead of the river, and pay them toll.
This consideration, that an individual, who should suffer damage from the neglect or refusal of the State to cause the lock to be opened, would be without any means of redress for that damage, appears to the Complainant an unanswerable and all-sufficient reason, why the most rigid rules of law should be inflexibly enforced against the proceedings of the State.
We have thus argued the question as if no delay at all would necessarily be occasioned to the passenger, by a dam with a lock in it—and trust that even on that supposition, we have shown that a dam would be a nuisance.
But there is another reason why such a dam would be a nuisance, even though the lock were tended and opened in the best possible manner—and that reason is, that some delay would necessarily be occasioned in going through it. This delay, it is true, might be but for five or ten minutes for each boat—but a delay of five or ten minutes, if unauthorized by the sovereign power, (which in this case is Congress) is as illegal as one for five or ten years. The State of Ohio has no more right to stop every passenger on the highways of the U. S. five or ten minutes each, than an individual has to stop passengers the same length of time, on the highways of the State. Nor has the State any more right to stop boats engaged in “navigation among the several States,” five miutes each, than she has to stop the mails coaches of the U. S. for that length of time. Such boats are as much under the “exclusive” regulation of Congress, as are the mail coaches of the U. S.
Again—a right, in one particular State to stop navigation on the navigable rivers of the United States, for five or ten minutes, would involve a right to stop it for five or ten years, and forever. It would, therefore, involve a right to prohibit “navigation among the several States” altogether; it would involve a right to pass embargo laws, and to shut up their navigable rivers entirely by dams—all of which rights would be in direct conflict with the “exclusive power of Congress to regulate commerce and navigation among the several States.”
Again—the States may as well put in a dam, and demand toll of all the citizens of the United States for the privilege of going through it, as to demand any portion of their time—the latter is as much a tax upon them as the former would be.
But it has been suggested, that the right reserved by the United States to these fresh water navigable rivers, is a mere right of way, or easement of navigation—and that a riparian owner, and of course the State, may use the bed, banks, and waters of the rivers in any manner for their own benefit, provided they do not “materially” interfere with, or interrupt the navigation—and that a dam with a lock in it, if the lock be properly tended and opened, is not a “material” interruption—that, in short, the delay of five or ten minutes caused by the dam, is not “material.” The leading principles of this suggestion may, for ought we see, be correct—not so with the application. Is not any interruption in a “highway” that compels the passenger to depend for the enjoyment of his right of passage, upon an irresponsible and unknown person, “material?” If not, then it is not a material matter whether any of a man’s rights or property are suffered to remain in his own possession, or whether they be seized upon by an usurper.
Again—is not a delay of five or ten minutes “material?” If not, then a tax of five or ten cents would not be material. To say that the State has a right to tax boats to the amount of five or ten minutes time, but has not the right to tax them to the amount of five or ten cents in money, is sacrificing sense to sound.
Again—is it not absurd to speak of any interruption or delay as immaterial? Is it not as much a paradox to speak of an immaterial delay, or an immaterial loss of time, as it would be to speak of an immaterial loss of money? Besides, when we consider that this dam may cause a delay of five or ten minutes to ten, twenty, or an hundred boats in every day, and that these boats may each have on board ten, twenty, or an hundred passengers, the materiality of five or ten minutes delay becomes very materially increased.
There is another way of testing the materiality of such a dam: If one dam is not material, then any number of dams would not be. If any number be material, one is material in its proper proportion—and if one dam cannot be enjoined, then an hundred, if but built one at a time, could not be. Now, we know that a large number of dams would make the navigation of a river utterly worthless; not so with a large number of wharves, none of which should extend so far into the channel as to interfere with the navigation. Riparian owners, or the State, may, therefore, build such wharves along the whole course of a river, if they please—although they may not put in one dam across the river, Such wharves are the kind of structures that are not “material,” because they do not interfere with the navigation.
There is still another test of the materiality of a dam. There can be no doubt that if a dam, with a lock, or with any number of locks in it, were built across the river Thames, just below the city of London, it would at once give rise to a rival city, and gradually remove a large portion of London commerce below the dam, and greatly reduce the value of real property in London; all solely by reason of the inconvenience of passing a lock. Can a cause capable of producing such effects, be called immaterial? If it would be material on the river Thames or the Mississippi, it would be material on the smallest river that the law had declared navigable.
Again—the erection of the dam by authority of the State, is equivalent to the passage of a law by the State, that every boat navigating from one State to another, or engaged in “commerce among the States,” shall stop at that particular point five or ten minutes. If, therefore, the State may, by a dam, stop boats five or ten minutes at one point on the river, they may pass a law that all boats shall make a halt of five minutes once in every ten rods, if the State so please, through the whole length of the river—and such a law would be as valid as the law authorizing a single dam at one point. It is no answer to this view of the case, to the say that the State will not conduct so maliciously or illiberally as to pass such a law. The question is whether she have the power? If she have the power, she may exercise it at will, and without regard to right or reason—(Congress undoubtedly has power to pass such a law.) In the case of Brown vs. Maryland, [12 Wheaton, 439 and 440,] the Supreme Court of the United States say: “Questions of power do not depend upon the degree to which it may be exercised. If it may be exercised at all, it may be exercised at the will of those in whose hands it is placed,” &c. &c. And again, [p. 447]—“The question is, where does the power reside? not how far will it probably be abused? The power claimed by the State, is, in its nature, in conflict with that given to Congress—and the greater or less extent, in which it may be exercised, does not enter into the inquiry concerning its existence.” In McCulloch vs. Maryland. [4 Wheaton, 430,] the court say: “We are not driven to the perplexing inquiry so unfit for the judicial department, what degree of taxation,” (or, they might have added, of any other burdening or interference.) “is the legitimate use, and what degree may amount to the abuse of the power. The attempt to use it on the means employed by the government of the union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power, which the people of a single State cannot give:” And again, [p. 436]—“The States have no power, by taxation, or otherwise, to retard, impede, burden, or in any mannercontrol the operation of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.” Now Congress, in pursuance of their constitutional powers “to regulate navigation among the several States,” and “to dispose of and make all needful rules and regulations respecting the territory belonging to the United States,” have enacted that this river shall “be, and remain a public highway.” Ohio puts a dam across it, which shuts it up entirely, and says to the passenger, “You shall hereafter depend upon my will, and the will and ability of my agents to open for you a private way in the place of the highway established by Congress.” Is not here collision? Does this leave the river a “public highway?” Is not here an assumption to “control” the constitutional legislation of Congress? Ohio says also to all passengers, “you shall be delayed in you passage at least five minutes at this point,” (and, of course, as many minutes at as many other points as the State may please.) Is not this “retarding, burdening, and impeding the operation of the law of Congress,” which enacted that this river should be a “public highway?” Is not such a law as clearly in “conflict” with the constitutional laws of Congress, as would be a State law that should enact that the United States mail coaches should make stops of five minutes each, at particular points designated by the State?
Again. By the laws of Congress, this river has been established as a “common and public highway,” in the technical meaning of that term. The laws, therefore, that apply to highways on land, apply to this river. To suppose a parallel case then—if two fences were placed, by an unauthorized person, across a highway on land, with gates in them, so as to require five minutes for passing them, would they not constitute a nuisance? Jacob says, “Erecting a gate across a highway, though not locked, but opening and shutting at pleasure, is esteemed a nuisance, for it is not so free and easy a passage, as if there had been no gate.” (Jacob’s Dict, tit. highway, sec. 5.) Also, “It is clearly agreed to be a nuisance in a highway to do any act which will render it less commodious.” (Jacob’s Dict, tit. highway, sec. 4.) The Supreme Court of Massachusetts also says that bridges with draws, across navigable waters, are nuisances, unless authorized by the sovereign power. (1 Pick. 184—2d do. 39—4th do. 460—9th do. 142.) In one of these cases (2d Pick. 39) the Court mentions that the Legislature of that State have been in the habit of requiring the owners of bridges, as a condition annexed to the privilege of erecting them, that they make compensation to the owners of vessels for the delay that is necessarily caused by passing bridges with draws.
But it is said—and such a dictum was given out by the Supreme Court of Ohio, in the case before cited in 5th Hammond—that a State may put in dams and locks, if by so doing they improve the navigation of the river. Now, there is in this word “improvement,” a sort of charm for covering up what is illegal, and that is the reason why it is brought forward to cover up and excuse so palpable a trespass upon a public right of way, as that of erecting dams and locks in a navigable river, over which the State has no control, and compelling men to submit to the delay of going through them, or to the risk of not being able to get through them at all. Where a stream is not navigable, the State has undoubtedly power to make it so by means of dams and locks, because the stream then belongs to her own citizens, and she may do what she pleases with it. But wherever (in the States that have been formed out of territory that once belonged to the U. S.) a stream is navigable, it belongs to the U. S., and without the consent of the U. S. the State has no right, under pretence of improving it, to put in dams and locks, or make other alterations which, of themselves, are sufficient to obstruct or delay the passenger. The State would have a right to deepen the channel, and so would the riparian owner, because that could not obstruct the navigation. But the principle before quoted from the 1st Pickering, would apply to the case of a dam, a bridge, or any other structure, which involved an impediment or obstruction in the natural passage, and a temporary delay to passengers, viz: that “none but the sovereign (legislative) power have the right to judge” whether such an alteration would be an improvement. Nor is the question whether the dam be an improvement, one simply of fact, to be ascertained and determined judicially. When the legislative power have enacted that a particular river, in its natural state, shall “remain a common highway,” that is, an open way, the judicial department have no power to inquire into, and determine the expediency of erecting in that river certain structures, which involve a shutting up, or a destruction of the natural passage, a temporary delay to the passenger, and a dependence on the part of the passenger upon the will of unknown persons for his passage. The judiciary, in such a case, (say the S. C. of Mass. 1st Pick. 187) would be legislating instead of declaring the law as it is.
Again—Has the State of Ohio, under pretence of “improving” the post offices of the United States, within her limits, a right to assume the power of putting doors, windows and boxes in them, without the consent of the United States, or their agents? And especially has she, under pretence of providing for the greater security of the public mails, a right to put locks on the doors of the post offices within her limits, appoint agents to keep the keys, and open the doors when necessary, and thus compel the citizens of the United States to depend for their mail facilities upon the mere will or ability of these State agents to open the doors? Certainly not. Yet, she might as well assume such an authority, without the consent of Congress, as the authority of putting dams and locks in the rivers of the United States (under pretence of improving them,) and thus of compelling the citizens of the United States to go through them, and to depend upon the agents of the state for liberty to go through them.
If the State of Ohio wishes to improve the navigation of the Maumee river by any means that involve a shutting up or destruction of the “highway,” or open way, established by Congress, let her lay her plans for such improvement before Congress, and if Congress should be satisfied with her plans, and if Ohio should give satisfactory assurances that the locks should be always kept in repair, be always properly tended, and that all other things proper to be provided for in such cases should be conscientiously performed by the State of Ohio, Congress would, no doubt, consent to the alteration—otherwise they ought not to consent to it. There may be thousands of cases where it would be proper for Congress to grant to Ohio the privilege of obstructing a navigable river, which they have declared shall “remain a highway”—but the question now is, whether Ohio can, in any case, claim this privilege as a legal right?
Another way of testing this question of a right in the State of Ohio, to put dams and locks in the rivers of the United States, under pretence of improving them, is, by asking whether the riparian owner have that right? If he have not, the State of Ohio cannot have it, because she has no right to use the river otherwise than as he might have used it before her.
Another way of determining this question, is, by simply deciding to which of the two governments, Ohio or the United States, this right of way belongs. If it belongs to the United States, Ohio certainly has no right, without the consent of Congress, to interfere with it in any way that can possibly injure or obstruct it. On the other hand, if it belongs to Ohio, then the United States have no right to interfere with it, without the consent of Ohio. There is no concurrent jurisdiction in the two governments over this right of way. It belongs to one or the other of them—and the one to whom it does not belong, must be content to let it remain in just such condition as the one to whom it does belong, chooses to let it remain. The general government is the owner—and has seen fit, as yet, not only to leave the navigation unobstructed by any artificial structures, that may be called improvements, but also to enact specially that it “shall remain” so—and Ohio has no right to say that it shall not remain so forever, if Congress should so please. Ohio has as much right to go on and improve the wild lands of the United States within her limits, as to improve the navigable waters of the United States in any way that can injure or obstruct the navigation of them.
Again—If a river were to remain a “highway,” or open way, the distance usually occupied by a lock, could be passed in one minute, or perhaps in one-twentieth of a minute—but to pass through a lock requires five or ten minutes. At least, then, the particular portion of the highway that is occupied by the lock, is injured. Now is the benefit, if any, that may result to other portions of the highway, any legal justification for an injury done to that particular portion occupied by the lock? Can the State claim, as a matter of right, to offset the benefit against the injury?
Again—The improvement made in navigable rivers by dams and locks, consists in this—that by means of a lock, a boat is enabled to overcome, at a single lift, several feet of ascent, which otherwise would have to be overcome gradually. And this is the kind of improvement, which the Ohio Court says may be lawfully made by the State in a “highway” belonging to the United States. Let us apply this doctrine to a highway on land. Suppose an inclination of ten feet to the mile in a highway on land—would any individual or power, subordinate to the power that established the highway, have a right, without license, to reduce the inclination, and bring the road to a level, by making a perpendicular descent of the whole ten feet at a single point? Would he have the right to do this, even if he were to provide artificial facilities at that point, by means of which the embankment could be ascended and descended with a delay of less time than would be gained on the remainder of the mile? The idea is too ridiculous for argument—and yet the case is a perfect parallel to that of a dam and lock in a navigable river.
Again—The State Court claims for the State, the power of improving the “highways” belonging to the United States, by means of structures that interrupt the highway, and delay the passenger five or ten minutes at particular points, if they but facilitate his passage, for the remainder of his course, sufficiently to counterbalance or overbalance the delays. Such a doctrine is equivalent to this—that the State Legislature has power to exercise a general supervision and control over the constitutional legislation of Congress. For example, Congress enacts that this river, such as it is, shall be a “common highway”—that is, an open way. A highway is also a way that can be lawfully interrupted by no power subordinate to the power establishing it. But Ohio says it shall not be an open way—but shall be interrupted by dams and locks, because she thinks the way will be the better for it. Is not this assuming a power to alter and improve upon the legislation of Congress? Congress also, by enacting that this river shall be a “common highway,” have virtually enacted that passengers upon it shall, at no point, or on any pretence, be delayed or hindered in their passage, by any person or power not licensed by Congress. But Ohio, by authorizing a dam, enacts that passengers shall be delayed five minutes whenever they arrive at a particular point. This is palpable collision. But Ohio, in order to avert the consequences of this collision, and to prevent her legislation being set aside, appeals to this Court with an apology for the collision—enters into a justification of the delay that she causes—offers an argument as to its expediency—and says that in consequence of it, passengers will find the remainder of their route more easy of accomplishment. This all may, or may not be true. Still, what is the amount of the justification, unless it be that Ohio have a right to overrule the legislation of Congress, whenever she can accomplish good by it—this Court being the judge whether the good be accomplished? It certainly means this, or it means nothing. It means that the State Legislature and this court combined, have the right, whenever they think it expedient, to take the legislative powers of Congress out of its hands, and administer them themselves. Such an apology as this, then, for the exercise of the power, on the part of the State, is good for nothing. Nor would this or any other apology be offered, or be necessary, if the power itself belonged to the State—for a State may exercise at will, and without rendering reasons, any power that belongs to her. If Ohio have the right to delay passengers five minutes on the “highways” of the United States, or to delay boats five minutes that are engaged in “navigation among the several States,” on pretence of doing a benefit to the boats, it follows that she has a right to delay the operation of all other laws of Congress, whenever by so doing she can improve their influence upon those that are to be affected by them. And if this Court will listen to arguments from Ohio, tending to prove that she has altered the regulations of Congress for the better, and will sustain the State in making whatever alterations this Court may think beneficial, in the laws of the United States, then Ohio may suspend, alter or delay the operation of every law of Congress within her limits, provided she can satisfy this Court that her legislation is better than the legislation of Congress. She may, for example, stop the mail coaches of the United States five minutes in the middle of their routes, provided she cause the horses to be refreshed so as to be able to get through the remainder of the routes sooner than they otherwise would. She may also delay the time of holding the Circuit Court for the district of Ohio, by preventing the Judges from entering the Court House at the time appointed by Congress, provided she can satisfy this Court that suitors will thereby be better accommodated. If Congress order the post offices in Ohio to be opened at eight o’clock, Ohio may forbid their being opened until five minutes or five hours after eight, provided she can satisfy this Court that such an arrangement is an improvement upon that established by Congress. Ohio has as much right to stop the mail coaches of the United States in the middle of their routes—to delay the Judges when entering the Court Houses of the United States—and to prevent post-offices from being opened and entered at the time designated by the laws of Congress, as she has to shut up the navigable rivers or “common highways” of the United States, and thus delay passengers and boats that are navigating “among the several States,” or that are passing on the highways belonging to the United States. Such boats are as exclusively under the control of Congress, as are mail coaches, the district Courts, or the post offices of the United States. Congress is the sovereign power over these highways and navigable rivers, and also over boats engaged in “navigation among the several States”—and therefore Congress has the sole right to judge of what the public convenience requires—and the State has no particle or color of right to exercise any control in the matter, or to stop boats for one moment of time, or at any point of their progress, on any good or bad pretence whatever, or by any means whatever, whether by dams, laws or otherwise. She has no more right to stop them, than she has to stop the mails at particular points, or to delay the opening of the Courts and post offices of the United States on pretence of benefitting the public.
Again: The question, whether a dam and lock, erected without the license of Congress, be an improvement, is one that can never be settled in the affirmative by this or any other Court: And for this reason, that the question of improvement or injury depends, at best, upon a contingency, viz: that of the lock’s being opened for the passenger. Now, it can never be proved beforehand, that the lock will be opened. A court therefore can never determine affirmatively that the navigation has been improved: For if the lock be not opened, the navigation, instead of being improved, is ruined. Indeed, the natural navigation—the “highway” established by Congress, is destroyed, in any event, by a dam and lock—and the only real question, therefore, that the case then admits of, is, whether the artificial navigation, which the intruder has provided as a substitute for that established by Congress, be better than the latter? Such a question, the complainant supposes this Court will not entertain.
But, perhaps all argument, on this point of improvement, might have been spared—for no evidence has been offered, nor any pretence set up by the defendants themselves, that the effect of this dam will be to improve the navigation of the river; or that any dam is needed at this point, for the improvement of the river. That is all a gratuitous assumption of the counsel. The truth is, as is set forth in the bill, and as is not denied by the defendants, that the whole object of the dam is, to make the waters of the river, subservient to the purposes of the canal.
But there is another consideration, which the complainant thinks is sufficient, of itself, to set at rest every possible question in regard to the legality of a dam with a lock in it—whether it be considered that such dam and lock might be made to operate as an improvement or not. This consideration is, that it cannot be presumed that Ohio will ever open the lock at all. We cannot presume that she will open it, for the reason that we have no evidence that she will—and it cannot be presumed without evidence. She has never pledged her faith that it shall be done—she has appointed no agents that are authorized to make any such pledge—it is clearly againsther interest to open it, (because it will be attended with some expense, and she also will thereby lose the monopoly of the transportation for her canal.) No law can compel her to open it, (because a State cannot be sued)—and it is notorious that in innumerable similar cases, she has invariably refused to open locks, unless she were paid toll for so doing, (which is equivalent to not opening them at all.) We must therefore presume that she will not open the lock in the Maumee river—or, at any rate, we cannot presume that she will. We can no more presume it in the case of a State, than we could in the case of an individual. The dam therefore can only be looked upon in its naked character of an obstruction, which will have to be removed by the General Government, or the navigation of the river abandoned.
Again: Congress have enacted that this river shall “remain a highway.” A highway is an open way; but a way through a lock, is one that requires to be opened, whenever one wishes to pass.
One suggestion more on this point of a dam with a lock, and we will cease arguing the question. This dam is to be some sixty, seventy, or eighty rods in length—nine or ten feet high, and built in a very heavy and substantial manner. Suppose that after it shall be built, it should not answer the purpose, or that the present location of the canal should be changed—or that for some other reason, this dam should be abandoned. Who then is to open the lock, or remove the dam? Ohio certainly cannot be compelled to do either: there is no law that could in that case reach a State. She may abandon her dam at any time, and the only way left to restore the navigation of the river, will be for the United States to remove the dam at their own expense. Now is it possible that an individual State, without the consent of Congress, can lawfully place heavy and formidable structures across the navigable rivers and highways of the United States, and then turn round and leave the United States to the task of removing them? This certainly is an unavoidable conclusion from this doctrine. So also, if we suppose what is very likely to happen, that Congress should hereafter see fit to improve the navigation of this river, as they are doing that of hundreds of others of like character, in different parts of the Union—and that the plan of their improvement should be such that dams would not be wanted at all, or that this canal dam would be in a wrong place, or even its lock of a wrong size, the objection before stated again presents itself, viz: The removal of them must be made at the expense of the United States. Has the State a right thus to fill up, at pleasure, the navigable rivers of the United States with these obstructions, and subject the United States to the cost of removing them? It is no answer to the argument, to say that Ohio will not be likely to abuse this power, (that depends upon the motives she may have to do it.) But the question is, whether she have the power, and can be allowed to use it, if she will?
It may be argued that as the erection of this dam is not for the purpose of “regulating navigation among the States,” it may be done by the State. It was admitted by the Court, in Gibbons and Ogden (page 197 to 210,) that the States, for the purpose of regulating their domestic trade and police, might exercise certain powers—as taxation for instance—similar to those exercised by Congress. It was admitted, also, that the State might adopt certain police regulations of the same kind as some of those, which it might be proper for Congress to adopt for the purpose of regulating commerce. But the Court expressly limited the power of the States, on these points, to the passage of laws, that did not interfere either with the freedom of navigation, or with any regulations that Congress had established. The Court said (pages 209 and 10) that if any “collision “exist” between the State laws and the laws or regulations of Congress, it was immaterial whether the State laws were enacted for the purpose of regulating “their domestic trade and police,” or for that of regulating commerce among the States. “In one case and the other (say the Court) the acts of the State must yield to the laws of Congress.” The law of New York, giving a monopoly of steam navigation on the North river to Livingston and Fulton was not for the purpose of “regulating navigation among the States,” but for the encouragement of the arts—an object as important to the wealth and civilization of a State, as is the construction of canals. Yet the law of New York was pronounced void for “collision” with the regulations of Congress—void, not for prohibiting commerce, but for simply imposing a burden and impediment, where the commercial system of Congress had left it free. The law of Ohio authorizing a dam, comes in “collision” with the law of Congress, which declares that the Maumee river shall “remain a highway,” or open way. It also comes in “collision” with the regulations which Congress have established in regard to “navigation among the several States,” because it interposes an impediment, where the commercial system of Congress had left the navigation free. It also assumes a “control” over the property of the U. S. (for the right of way over these rivers is the “property” of the U. S.) It also acts upon “the means employed by the government of the Union, in pursuance of the Constitution.” In both these respects, it is an usurpation, and comes in “collision” with the rights and legislation of Congress. (M’Culloch and Maryland 4th Wheaton 430.)
It is said that unless Ohio can obstruct the navigable rivers of the U. S. she cannot construct her canals. But whether the State can or cannot construct all necessary canals, without obstructing the navigable rivers of the U. S. is a question of fact to be determined by evidence, and is not now before this Court. But admitting the fact to be as stated, that is no better argument in favor of the legal right of the State to obstruct them, than the argument of individuals, that unless they were permitted to obstruct such rivers, they could not operate their saw mills, would be in favor of the right of such individuals to obstruct them. If Ohio cannot construct her canals without obstructing the navigable rivers of the U. S., the object is undoubtedly of sufficient importance to be entitled to the consideration of Congress, and Congress will undoubtedly be liberal in judging of the expediency of complying with the wishes of the State. But this is a very different matter from that of the State’s claiming the legal right to obstruct them in defiance of the laws of Congress. Congress must, of course, retain in their own hands the power of judging whether it be expedient that their highways and navigable rivers should be shut up, and their laws in regard to them superseded and overruled by State laws. And the State has no more reason to complain on account of being required to obtain the permission of Congress to obstruct navigable rivers within her limits, than she has on account of being required to obtain the consent of Congress to go through those lands, within her limits, which belong to Congress. In the case of the Miami canal, she requested and obtained permission to go through the lands of Congress, and made no complaint that it was an infringement of her constitutional sovereignty to require her to obtain that permission. And yet the power of controlling all lands within their limits, and of taking them for the public use, is as much an attribute of sovereignty, in ordinary governments, as the power of controlling the navigable rivers within their limits. But the peculiar character of our system takes from the State governments this attribute of sovereignty, so far as it relates either to the lands or rivers, or other property, of the general government—and the restriction is no more a subject of complaint, when it applies to rivers, than when it applies to lands.
But it is said, that if the State may not control the navigable waters within her limits, or do any thing else that interferes with the commercial regulations of Congress, she is in a very “helpless condition.” And this is, after all, the grand argument, for it appeals to State pride. But the answer is, that whatever this helplessness may be, it is endured by Ohio in common with all the other States of the Union. The Constitution of the U. S. condemned the State governments to utter helplessness as to all power of controlling the general government in relation to “navigation among the several States.” It was foreseen that if the States were suffered to retain a particle of such power, they would inevitably clash with each other, and thus render futile all attempts of Congress to establish an uniform system for the whole country. The Constitution also condemned the State governments to utter helplessness as to all power of controlling Congress, in “disposing of, and making all needful rules and regulations respecting the territory and other property belonging to the United States”—of which territory and property these rivers are a part.
The case arises under the constitution and laws of the United States—the parties are also citizens of different States.
The liability of the Defts.
In Osborn vs. Bank of U. S. it was decided that: “In general, an injunction will not be allowed, nor a decree rendered, against an agent, where the principal is not made a party to the suit—But if the principal be not himself subject to the jurisdiction of the Court, (as in the case of a sovereign State,) the rule may be dispensed with.” (9th Wheaton 739.)
This is a case of public nuisance, attended with special injury to the Complainant.
The land of the complainant is situated at the lower terminus of the large extent of free navigation afforded by the Maumee river, and its branches. On account of being so situated, it enjoys great advantages as a place from which merchandize may be forwarded up the river, and at which produce coming down the river may be received for storage and market—and also as the natural trading point for the country bordering on the rivers above—and its value depends greatly upon the continued enjoyment of these advantages. In addition to this, the large water power attached to the land of the complainant, and afforded by the rapids, which commence at this point, make the situation the most natural one for the manufacture of the lumber and grain furnished by the country above. It is also the most natural seat for the establishment of most of the mechanical and manufacturing operations, requiring water power, and demanded by the wants of the country above. This water power, therefore, which is intrinsically of very great value, and already partially in use, will undoubtedly be called into speedy and extensive requisition, unless some impediment should be placed in the navigation, which now conducts to it—while any such impediment would tend most materially to divert this business to other places, and thus deprive the complainant both of the opportunity of selling, and of the profit of improving, this water power. The value of the complainant’s land, adjoining this water power, would also be greatly reduced by any circumstances, that should tend to keep this water power out of use.
The aggregate of these various injuries, to the value of the complainant’s property, would be very great, and of a nature utterly incapable of estimation—and, not unlikely, incapable, from its amount, even if it could be estimated, of being compensated by those who may hereafter be defendants—for he has no security that the Commissioners, or other agents of the State, who are annually changing, will always be men of pecuniary responsibility. On both these accounts, there is the most imminent danger that the injury would be irreparable.
That these reasons are sufficient for the injunction, we cite the following authorities:
In Crowder vs. Tinkler, (19 Vesey’s, Ch. R. 621) the Lord Chancellor said: “Where the subject of complaint is matter (merely) of public nuisance, the Attorney General alone can sue—but it is going too far to say, particularly without more materials than can be had on motion, that if a plain nuisance is attended with particular and special injury to an individual, producing irreparable damage, that individual shall not be at liberty to come here, unless the Attorney General chooses to accompany him.” And he adds, on the next page (622) “Upon the question of jurisdiction, if the subject were represented as a mere public nuisance, I could not interfere in this case, as the Attorney General is not a party.” “The complaint, therefore, is to be considered as of not a public nuisance, simply, but what, being so in its nature, is attended with extreme probability of irreparable injury to the property of the Plffs. including also danger to their existence—and on such a case, clearly established, I do not hesitate to say an injunction would be granted.”
The case of Coming vs. Lowerre, (6 Johnson’s, Ch. R. 439.) was this:
“Bill for an injunction to restrain Deft. from obstructing Vestry Street, in the city of New York, and averring that he was building a house upon that street, to the great injury of the Plffs. as owners of lots on and adjoining that street, and that Vestry street has been laid out, regulated and paved-for about twenty years.
“The Chancellor distinguished this case from that of the Atty. Gen. vs. The Utica Ins. Co. (2 Johnson’s, Ch. Rep. 371) inasmuch as here was a special grievance to the Plffs. affecting the enjoyment of their property and the value of it. The obstruction was not only a common or publie nuisance, but worked a special injury to the Plffs. Injunction granted.”
Story says also that “Where privileges of a public nature, and yet beneficial to private estates, are secured to the contiguous proprietors on public squares, or other places dedicated to public uses: the due enjoyment of them will be protected against encroachment by injunction.” (2 Story’s Equity, sec. 927, page 206.)
The principle of these authorities was specially sanctioned by this Court, at its last session, in the opinion given in the case of city of Georgetown vs. Alexandria Canal Co. (12 Peters 91.)
Much reasoning, that is applicable to this case, is also contained in the opinion of this Court, delivered by Ch. J. Marshall, in Osborn vs. Bank of the U. S. (9th Wheaton 838 to 846.)
We are aware that there has been a hesitation on the part of Courts in granting injuctions. But it is believed that this hesitation has been confined chiefly to granting them on exparte testimony, or on the preliminary proceedings, before the rights of the parties had been fully ascertained. And in such cases, the hesitation is evidently discreet and proper—for otherwise there would be great danger of arresting men in the prosecution of their legal business, and in the enjoyment of their legal rights.—Still, Courts will grant injunctions, even on exparte testimony, where a plain case is made out, and where there is manifest danger of irreparable injury from delay. And even “if the right be doubtful, the Court will direct it to be tried at law, and will in the mean time restrain all injurious proceedings. And when the right is fully established, a perpetual injunction will be decreed.” (2 Story’s Equity Sec. 927, page 207.) There seems, therefore, to be no occasion for delicacy or hesitation in granting injunctions, after the right has been established. In New York Printing Establishment vs. Fitch (1st Paige’s Ch. R. page 97—also Barbour and Harrington’s Equity Digest Vol. 3, page 448,) the Chancellor said, “There are many cases in which the complainant may be entitled to a perpetual injunction on the hearing, where it would be manifestly improper to grant an injunction in limine. The final injunction is, in many cases, matter of strict right, and granted as a necessary consequence of the decree made in the cause. On the contrary, the preliminary injunction, before answer, is a matter resting altogether in the discretion of the Court.”
Such also seemed to be the opinion of this Court in Osborn vs. Bank of the U. S. (9th Wheaton,) where the injunction was affirmed, on the hearing. The reasoning of the Court generally in that case, (from page 838 to 846) was strong in favor of a very liberal use of their preventive power, after the rights of the parties are once established. For example, the Ch. J. said (page 843,) “Why may it (the Court,) not restrain him from the commission of a (any) wrong, which it would punish him for committing?”—He also said (page 845) that “it is the province of a Court of Equity to arrest injury, and prevent wrong,” because such “remedy is more beneficial and complete than the law can give.” And the injunction was affirmed in that case, although the Ch. J. said that an action at law might have been sustained, and (page 841,) that “a reasonable calculation might have been made of the amount of injury, so as to satisfy the Court and Jury.”
The 16th Section of the Judiciary Act of 1789, (Story’s Laws Vol. 1, page 59) is in these words, “That suits in equity shall not be sustained in either of the Courts of the United States, in any case where plain, adequate and complete remedy may be had at law.” The necessary inference from the language of this section, is, that suits in equity may be sustained in all cases when the remedy at law is not “adequate and complete.” We trust that in this case, the reasons already given, to wit, the impossibility of estimating an injury of that nature, and the doubtful responsibility of those who may hereafter be Defts.—to which may be added the fact, that the principal is not liable to a suit—are sufficient to show that there is no reasonable probability that any “adequate or complete remedy” could ever be had at law. In addition to these reasons, there is another, to wit, that this dam would be a continuing injury, and the remedy at law could only be obtained by a multiplicity of suits. These suits would be attended with such an amount of trouble and expense over and above the legal costs, that they would afford no “adequate or complete remedy.”
It may perhaps be argued that this injury may be repaired by abating the dam, after it shall be erected. But if the dam cannot be enjoined at the suit of the Complainant, it certainly could not be abated at his suit. And if it could not be abated at his suit, he has no security that it would be abated at all, because the District Atty. may not see fit to procure its abatement.
But suppose it should be abated—it could be done only after a delay of two, three or four years from the present time—because it will require a year or two to complete the erection of it, and then it would doubtless require another year or two to abate it, and during all this time, the effect of the dam is to sink the marketable or available value of the complainant’s property greatly below its true value, by reason of the uncertainty that must pervade the minds of the public, as to when and whether the dam will be finally abated. To keep the legal and available value of a man’s property in abeyance in this manner, and for this length of time would be a heavy and irreparable injury. Besides, there is danger, in this as in all other similar cases, that the Complainant may, within the time mentioned, become pecuniarily embarrassed, and his property be sacrificed at its reduced value, to pay his debts—in which case, it is evident that no “adequate or complete remedy” could ever be even hoped for at law. In addition to this, the place, by having its natural advantages cut off for three or four years, would lose the benefits of all those improvements, which during that time, its peculiarly favorable situation and great natural advantages would otherwise undoubtedly give rise to. This loss would also be of a nature incapable of estimation, and of course incapable of reparation.
It was argued in the Circuit Court, that if this property were to be injured in value by the erection of this dam, it was in the situation of private property taken for public use, and that the complainant must look to the State for his compensation. The answer to this argument is, that no property of the complainant is actually taken, unless it be a small quantity of water, which he would have the use of as it flowed over his land, but which is not worth contending about. The property, so far as any is taken—that is, the highway, or right of way—is the property of the United States. The taking, therefore, is not of a citizen’s property for public use, but of national property for State use. The injury to the complainant is consequential merely—resulting from the illegal act done to the highway established by Congress. For such an injury, an individual could obtain no redress from the State, because neither the constitution nor laws of the State make any provision for such cases. They were not framed on the supposition that the State would ever invade the property, or violate the constitutional laws of the United States—or, of course, ever have occasion to make reparation to individuals for injuries resulting from such acts. Nor would a State have any power to violate the laws, or invade the property of the United States, even if it were to compensate individuals tenfold for all the injuries they might suffer from such violation or invasion. The State of Ohio, for instance, would have no right to shut up or abolish the post offices of the United States, or to prevent the holding of the United States courts within her limits, or to prevent navigation between herself and her sister States, though she were to compensate every individual that might suffer from such acts. The rights and benefits, which the citizens of the United States enjoy under the constitution and laws of the United States, are not so feebly secured to them, that they may be taken from them, at pleasure, by the States, and the citizen be compelled to look for compensation only to the justice of the State governments.
The court, we apprehend, cannot grant a conditional injunction—one, for instance, that should not forbid the erection of a dam, provided a lock were put in it, and tended and opened for passengers. That would be equivalent to offering to make a contract with the State—which the judiciary are not authorized to do. Neither would such an injunction secure to the complainant “the due enjoyment,” [Story’s Equity, p. 206,] of the advantages of this highway. “The due enjoyment” must be the legal enjoyment—and not one depending upon the will of an usurping power, that cannot be held responsible to him for its acts or omissions.
The complainant, therefore, asks for a peremptory injunction against a dam of any kind, that shall extend across the river, or so far into the channel as to obstruct, impede, or impair the navigation.
[* ] We suppose the compact, expressed in the ordinance, that the new States of the northwestern territory should not tax the lands of the United States, or Interfere with the disposal of them, is now vold from having been superseded by the constitution, which gives the general government the power of preventing any thing of that kind. But under the Confederation such a compact was necessary.
[* ] In Hogg vs. Zanesville Co., 5 Hammond 416, the Court say that that portion of the ordinance which prescribes that these rivers should forever remain “highways,” could “not be altered without the assent, both of the people of the State, and of the United States through their representatives.” This is claiming for the State, an equal right of control, with the United States, over these rivers.
[* ] The same powers, that were granted to the original Board of Canal Commissioners, by the act of 1825, before referred to, were transferred to the Board of Public Works, (the same mentioned in Complainant’s bill) by “an act to organize a Board of Public Works,” passed March 4, 1836, (General Laws of Ohio, Vol. 34, page 14, Sec. 2.)—and again devolved upon the present “Canal Commissioners,” by “an act to abolish the Board of Public Works, and to revive the Board of Canal Commissioners,” passed March 16, 1838. (General Laws of Ohio, vol. 36, page 64, Sec. 4.)
[* ] This explanation of the reason why the river was not used, instead of a canal, was given to the complainant by one of the principal engineers employed by Ohio in locating this canal.
[† ] It will be observed, that both these grants were originally made to Indiana—she subsequently, with the consent of Congress, [Story’s Laws, vol. 4, p. 2141, sec. 4] transferred to Ohio her privilege, for that portion of the canal which lies within the limits of Ohio.