senators and representatives to oppose the erec tion of the proposed bridge across the Ohio, Her resolutions pointed to the specific objections now urged: The obstruction to the free use of the Ohio River; the injury to commerce, trade, and manufactures, building of ships, war steamers, and other vessels, by placing a barrier in the passage to the Gulf; the interfering with steamboats, in high water, trading with the Western and Southern States; and claimed the use of the Ohio River as a great thoroughfare. They were in these words: took to answer the objection urged against bridging the Ohio. From this report it appears that the main, and indeed the only important objection was that now insisted on by the State of Pennsylvania; the obstruction which such an erection would be likely to occasion to steamboats. In answer to this objection it was insisted then, as now, that high chimneys were unnecessary; and that the few boats likely to be obstructed might, with proper machinery, accommodate themselves to the exigency, and that their convenience should yield to the public benefits of a bridge. But Congress thought otherwise, and the plan was rejected.gress of the United States for an appropriaHouse Reports, 1st sess. 24th Cong. No. 132. At the next session of the same Congress the subject was again brought forward; the same plan proposed; the same views presented; the same arguments urged. The project was again opposed in Congress on the ground of its injury to navigation, and as is evident from the committee's report, was on that ground alone defeated. House Reports 2d sess. 24th Cong. | 672. "Whereas, application has been made to Contion to aid in the erection of a bridge across the Ohio River at Wheeling, Virginia, the construction of which might materially obstruct the free use and navigation of said river above that point, and injuriously affect the commerce of the City of Pittsburg and all that district of Pennsylvania lying west of the Alleghany Mountains, by arresting the building of war steamers and other vessels of the great western manufacturing and commercial emporium of Still insisting upon a or age at Wheeling the this State, by placing a barrier to their passage 25th Congress had the suject presented in a to the Gulf of Mexico, besides seriously interreport of the Committee on Roads and Canals, fering with the free navigation of the Ohio on the 27th of June, 1838. In the meantime River by steamboats and other vessels engaged an exploration and survey had been made, un- in the trade of the Western and Southern der the direction of the War Department, by States during high stages of water: Therefore, Messrs. Sanders and Dutton, two skillful and "Resolved, by the Senate and House of Repdistinguished engineers in the government serv-resentatives of the Commonwealth of PennsylThey presented a plan for a suspension vania, in General Assembly met, That our wridge across the Ohio River, having for its Senators in Congress are hereby instructed, basis a strict regard to the rights of navigation, and our Representatives requested, to vote and providing that no obstruction should be against any appropriation by the national Legoffered to the passage of the highest steam- islature to the object above stated, and oppose boat chimney on the highest floods. Their plan every proposition for the erection of a bridge proposed a space of five hundred feet in width at Wheeling or at any other point on the Ohio and the height of the highest chimney then River, or any project that would result in inknown; and in order to provide for any change creasing the obstacles already existing to the or improvement in steamboats, the floor of the free navigation and use of that great thoroughbridge was to be movable so as to allow the fare of this Commonwealth. passage of boats. Report of Messrs. Sanders and Dutton, House Documents 5th Congress, June, 1838, No. 993. The cost was estimated at $400,000. A plan by Mr. Ellet was also submitted for a bridge, the same ele ation, seven hundred feet in width. But the same objections being urged, were found to be insuperable, and the plan was rejected. ice It is further to be remarked tha among the documents of this session was a s rrender by the City of Wheeling of its streets for the purposes of a bridge, and by Zane of any portion 526*] of the island for purposes of embankment. And yet an excuse now given for not erecting the bridge higher is the alleged damage to the streets, and the amount Zane would charge for embankment on the island, which is set down at the moderate estimate of $20,000. These rights were then freely granted for the bridge; and it was not until a later day that the cheap expedient was resorted to of saving private property by the encroachment on public rights on a navigable river. In December, 1843, another series of resolutions was procured from the Ohio Legislature; and armed there with, those interested in making Wheeling the head of navigation, again appeared before Congress. But Pennsylvania had become awakened to her interests, and the danger becoming imminent, she instructed her *"Resolved. That the Governor be [*527 requested to transmit a copy of the foregoing preamble and resolution to each member of the Pennsylvania delegation in Congress. James Ross Snowden, Speaker of the House of Rep. Speaker of the Senate. David R. Porter." These resolutions were immediately laid before Congress, and referred in the House to the Committee on Roads and Canals, on which was Mr. Steenrod, a member from Wheeling. House Doc. 28th Cong. No. 79. Here, then, the question was brought before Congress in the most solemn and imposing form. Two sovereign States appeared at the bar of Congress, one urging and the other opposing the bridge. At this crisis a bill had already been reported by that committee making an appropriation for a bridge at Wheeling, and containing this clause, "that the bridge shall be so constructed as to admit at all times, without obstruction or delay, of the safe and easy passage of steamboats of the largest dimensions." On the twenty-ninth day of January Mr. Steenrod presented a report, not contesting the rights of Pennsylvania, nor the injury she must suffer from an obstruction at Wheeling, but claiming that a bridge could be erected across the Ohio, at Wheeling, without obstructing the use and navigation of the river according to the provisions of the bill. With this report was submitted a plan by Mr. Ellet for such a bridge, stating that he had, since the date of his former plan, examined the localities, and "would recommend a radical change of plan for the Wheeling Bridge, and leave the river entirely unobstructed." House Rep. 28th Cong. No. 79. It appears, moreover, that the plan proposed was in some respects similar to that afterwards adopted and executed by the same engineer. It was a single span across the river, at an elevation of ninety feet above low water. But it was not then disclosed that such elevation was to be only for one hundred feet in width; that the channel was to be cut across by an inclined plane so as to obstruct a public navigable river. The specific objection was then urged as now, that ninety feet above low water would not admit the passage of steamboats with tall chimneys. It was then answered as it is now, that such height was unnecessary, that few boats only used such chimneys; that they ought to be provided with hinges and machinery for lowering; that detention would be only for a short space; that the river was impassable by reason of ice; that the mails 528*] *were delayed, and in short, every possible argument that has been, or can be presented in favor of this bridge was, in a report by the member from that district, pressed upon Congress. It was all to no purpose. The rights of Pennsylvania, and her interests of navigation, were deemed paramount, and the constitutional obligation to preserve the Ohio River as a free and common highway was held to be inviolable. The defendants' allusion to the Pacific settlements and commerce is of deep significance, and indicates the result to be expected, if states may thwart and override the constitutional provision, and by separate legislation consult their own and the general welfare. It has been well remarked, that in such event the Constitution would be a rope of sand. It is manifest, therefore, that the only constitutional power that could in any event authorize this bridge, had been invoked and that by its negative action, potentially as by express enactment, this structure was prohibited. Commerce, on the Ohio, being thus regulated by Congress, and that regulation including all the subjects of navigation, its vehicle, and those engaged in its management, it follows that any act or erection, in any way affecting the subjects thus regulated, whether by individuals or State governments, is unlawful. *In the great case of Gibbons v. Ogden, [*529 9 Wheaton, 1, this court decided that the power to regulate commerce included navigation, and when exercised by that body, any conflicting state regulation, no matter for what purpose or extent adopted, was void. In the subsequent case of Wilson v. The Black Bird Creek Marsh Company, 2 Peters, 245, it was held that any exercise of this power by Congress excluded and controlled all state action. Subsequent cases have illustrated these principles, applying them to all action, direct or indirect, of individuals or states, interfering with congressional regulations of foreign and domestic commerce. In the passenger cases, Norris v. Boston, and Smith v. Turner, Pamph. Rep. p. 85, Chief Justice Taney remarks: "It has always been admitted, in the discussion upon this clause of the Constitution, art. 8, sec. 3, that the power to regulate commerce includes navigation and ships and crews, because they are the ordinary means of com Now, the regulation of commerce consists as much in negative as positive action. Mr. Jus-mercial intercourse." In the same cases, Mr. tice McLean, Passenger Cases, 7 Howard, 399. Supposing, therefore, the Ohio River to be exclusively within the Territory of Virginia, on both banks, and from its head to its mouth, and that she might authorize bridges over it, yet that power is subordinate to the constitutional authority of Congress over commerce. And if Congress, in the exercise of its power, has manifested a negative policy hostile to bridges over the Ohio, any conflicting exercise of state authority would be void. And yet, in their answer, this hostile policy of Congress is the confessed motive for procuring their charter from the State of Virginia. Nay, more, its purpose is admitted to be that which the power granted to Congress by the 3d clause, 8th article of the Constitution, was especially intended to prevent, the acquisition by states, for their citizens, of commercial advantages by separate legislation. "The addition of territory and of settlement on the Pacific Ocean, and the increasing population and commerce of that coast, have recently given new importance to the subject; the change in federal policy and legislation as to bridges and other works of internal improvement has made it incumbent upon the States, by separate legislation, to consult and promote their own and the general welfare and prosperity." Original Answer, p. 24. Justice Daniel observes: "The power to regulate commerce includes the regulation of the vessel as well as the cargo, and the manner of using the vessel in that commerce." Id. p. 131. In those cases the following propositions were among others maintained: "That the power to regulate commerce, foreign and between the States, was vested exclusively in Congress." Mr. Justice McLean, 7 Howard, 400. "That the power in Congress to regulate commerce with foreign nations, and among the several States, includes navigation upon the high seas, and in the bays, harbors, lakes and navigable waters within the United States, and any law by a state, in any way affecting the right of navigation, or subjecting the exercise of the right to a condition, is contrary to the aforesaid grant." Mr. Justice Wayne, Id. 414. "That Congress has regulated commerce, and intercourse with foreign nations, and between the several States, by willing that it shall be free; and it is, therefore, not left to the direction of each state in the Union, either to refuse a right of passage to persons or property through her territory or to exact a duty for permission to exercise it." Mr. Justice Catron and Mr. Justice Grier, Id. 464. The principle of these decisions has been illustrated and enforced by a long series of cases, 2. That floods, ranging from twenty to thirty-eight feet, have occurred in the months of January, February, March, April, May, June, July, November and December, nine several months in the year. cited in the brief, and to which it is sufficient | in March and December, attain the height of for me to refer. See cases cited in brief. Hence thirty-eight feet. it follows that the bridge, erected by the defendants over the channel of the Ohio River, if | it obstructs, interferes with or in any wise regulates navigation, is an unlawful obstruction, no 530*] *matter by what charter or state enactments it may be authorized or sanctioned. I proceed to demonstrate that it does obstruct navigation, and conflicts with every regulation prescribed by Congress for that river. At Wheeling, the channel between Zane's Island and the main Virginia shore is one thou sand and ten feet wide. Through this strait, fifty millions in value of property, and over three hundred thousand passengers are accustomed to pass safely and without impediment, in steamboats to and from Pittsburg. Through it, the rice, cotton and sugar of the Southern States; the bacon, flour, tobacco, and various products of the Western States; the furs, peltries, minerals, and products of the Northwest ern region are transported to an Eastern market; and by the same channel foreign and domestic merchandise and manufactures find their way to their millions of consumers in that vast region. Baffled in the project of diverting this commerce from Pittsburg, by making Wheeling the head of navigation, under the sanction of Congress, resort was had to state authority, where Pennsylvania had no voice, and where her remonstrance could not be heard. On the 19th of March, 1847, a charter for the erection of a wire suspension bridge was obtained from the General Assembly of Virginia, under color of which, but in violation of the most important of its express provisions, the defendants proceeded to erect their bridge in the manner represented in the diagram now exhibited to the court. 3. That the duration of these floods varies from two to ten days. Regard to those facts has always been deemed of vital importance in the consideration of bridging navigable waters. Thus the wire suspension bridge over the Menai Straits, swings clear one hundred feet above high water; the Tweed Bridge is the same elevation; the Freyburg Bridge spans the channel at an elevation of one hundred and twenty-seven feet above high water (Sanders' Report); and on a late occasion of erecting a railway bridge over the Menai Straits, the Lords of Admiralty required the structure to be one hundred feet above high water, the whole width (2,800 feet) of the channel. Quarterly Review, October, 1849. Stern adherence to this requisition led to the most brilliant achievement of science since the days of Sir Isaac Newton. While the Conway Tubular Bridge will stand as a monument of genius, overcoming natural obstacles to accommodate navigation, the Wheeling bridge hangs an obstruction to navigation, copied, by its engineer, from the miserable expedient of a South American Indian, its original inventor. With utter disregard to the principles of science and the exigencies of commerce, low water level is taken as the basis of elevation for the Wheeling Bridge, and upon usual floods only a space one hundred feet in width by fifty in height is allowed for the passage of vessels ascending and descending the Ohio Riverthrough that space the commerce of the most navigable river in the world is compelled to stoop and dodge in high floods. The extent of departure from the principles of art, the engagements of the parties, and the obligations of law, will be seen in the follow 1st. It is an ordinary wire suspension bridge, which, over a channel like the Ohio, is condemned by one of the most distinguished engineers of this country, whose opinion, from his official employment as superintendent of the improvements of navigation on the Western waters, is entitled to great weight. An inspection of that diagram exhibits the fact that the only material variation between the bridge erected, and that proposed to and rejected by Congress, in 1844, consists in a particular, whereby nine hundred feet of the river channel is wholly cut off for purposes of navi-ing considerations: gation. When the engineer, by whom this structure was erected, proposed to throw a single span across the channel, ninety feet above low water, no one could have imagined that elevation applied to only one hundred feet in width of the water's surface; and that by an inclined plane stretching across the channel the residue was to be cut off. And yet such is this erection. The highest point in the bridge above low water level is ninety-two feet one and a half inches: from that point it deflects four feet in every hundred, being at the western abutment only sixty-two feet above that level. Taking the highest point as a center of the highest space, one hundred feet wide, it is at its extremities only ninety feet above water. This elevation, moreover, is above the low water level of the Ohio, viz.: eighteen inches in the channel. But this level exists, for a short season only, of the year; the height of water 531*] varying forty-five feet between the extremes of high and low water mark. The tables in the record exhibit the height of water at Wheeling, each day, for the period of the last ten years. From them we gather 1st. That the usual spring and fall floods, "I have no hesitation in giving the opinion that ordinary wire suspension bridges [532 are not well adapted to the bridging of the Ohio; and in view of the excessive ranges, from extreme low to extreme high water, rang. ing as they do, from thirty-five to sixty-five feet at different points, I am persuaded that none but truss frame bridges, with suitable draws at one or both extremities, or at suitable intermediate points, are properly adapted to bridging the Ohio. Hence, I am decidedly of opinion that wire suspension bridges are neither expedient nor applicable in bridging the Ohio or any other of the main navigable rivers of the West, liable as they all are to excessive changes in the elevation of their surfaces and the depth of their floods." Col. Long's Deposition, pp. 139, 140. 2d. It is an inclined plane thrown across a swift stream of ever-varying surface, the cur rent setting west towards the lowest point of the bridge, rocks fringing the highest point on the east, with nothing to mark the depth below, or the space above the surface, no two points at the same level, and nothing to guide the navigator in the perils that thus beset him. This inclined plane is placed so low as on spring floods to leave a clear headway of only fifty feet by one hundred in a natural channel one thousand and ten feet wide, over the whole of which vessels have hitherto been accustomed at all hours, in all weather, to pass safely, but where now the obscurity of tog and darkness, the force of the current, or accident in the complicated machinery of a steamboat, expose it to shipwreck. 3d. It not only forbids all advance or improvement in the size and dimensions of vessels, but forces them back ten years, making the dimensions of the Louisville Bridge and the condition imposed by the falls of the Ohio, the standard of steamboat architecture and navigation. That in these respects, also, such a bridge is against all example and rule, I shall now proceed to show, by the highest authority in the science of engineering. "Among the considerations that should be held up to view, in throwing bridges across the Ohio, it may be stated that the bridge shali offer no serious obstruction to the navigation of the river by steamboats or other craft, according to existing peculiarities of such boats or craft, and to sound considerations of probable improvement in the size and character of such boats and craft." Col. J. J. Abert, Chief of Top. Bureau, Record, p. 124. | Influenced, doubtless, by these rules and examples, the Virginia Legislature provided in the charter of this bridge: "If the said bridge, mentioned in the eighth section of this Act, shall be so erected as to obstruct the navigation of the Ohio River, in the usual manner of such steamboats and other crafts as are now commonly accustomed to navigate the same, when the river shall be as high as the highest floods heretofore known, then, unless, upon such obstruction being found to exist, such obstruction shall be immediately removed or remedied, the said lastmentioned bridge may be treated as a public nuisance, and abated accordingly." When this charter was accepted the defendants and their engineer thereby admitted the propriety of its requisitions, and engaged to comply with them. It was a part of their contract, with which they were bound to comply. Agar v. Regent's Canal Coop. 77; Blackmore v. Glamorganshire Canal, 1 Myl. & K. 164, In total disregard of all this, the defendants have erected their bridge on the novel plan of their engineer-undertaking to divide inconveniences with commerce on a public river, imposing expense, danger and delay; razeeing its vessels and averaging its floods. "It is fair to make a division of these inconveniences, and I would therefore provide for a passage of fifty feet, and a flood of thirty-five; and if occasion should require it, allow one or two of these boats to lie by for a few [*534 hours." Ellet's Letter, House Reports, 28th Congress, No. 79, p. 4. Vessels navigating the Ohio are propelled by the agency of wind or steam, and with the dimensions of the bridge or channel thus ascertained, it remains only to examine the result upon these vessels. "In selecting a plan for a bridge over the east branch (of the Ohio at Wheeling), full regard must be had to the interests of the navi gation of the Ohio, which require that the bridge should offer no obstruction to the pas sage of steamboats or other craft, which run or may hereafter navigate that river." Report 533*] on *Wheeling Bridge to the War Deing the Ohio above Wheeling. By the evidence, part. by Licuts. Sanders and Dutton, House Rep. 25th Cong. 1 Sess. No. 903. "The bridge shall be so constructed as to admit, at all times, without obstruction or delay, of the safe and easy passage of steamboats of the largest dimensions." Bill making an ap propriation for a bridge at Wheeling; reported by the Committee on Roads and Canals; House Report, 28th Cong. 1st Session, No. 79. Telford's Wire Suspension Bridge, over the Menai Straits, leaves a clear level waterway five hundred feet wide. The Freyburg Bridge leaves a clear waterway eight hundred feet wide. Ellet's Letter, House Rep. 24th Cong. No. 672. The English Lords of Admiralty required the Conway Bridge to give a clear waterway one hundred feet above high water over the whole width of the channel, 2,800 feet. Oct. Quarterly Review, 1849, p. 218. In his first plan for a bridge at Wheeling, submitted to Ĉongress, Mr. Ellet proposed a clear waterway 700 feet wide. House Rep. 24th Cong. No. 672. In his last plan, he proposed a clear waterway over the whole width of the channel, and to leave the river entirely unobstructed. Ellet's Letter, Dec. 29, 1843, House Rep. 28th Congress, 1st. Session, No. 79. At a single glance it is apparent that ships and sca-going vessels, requiring, as they do, over twelve feet draught and ninety feet above the water, are wholly excluded from navigat it is shown that from the port of Pittsburg ships have been cleared for foreign ports, laden with domestic products. Revenue and war vessels have been constructed there for the general government, and a large and prosperous business in ship building and naval architecture is springing up. The bridge at Wheeling necessarily involves the total destruction of this business, and the exclusion of such vessels and their commerce from the ports of Pennsylvania Upon steam vessels the exclusion operates with but little less injury. The diagrams now exhibited to the court represent the figure and dimensions of the Ohio steam vessels. Two classes are spoken of. The first being large and swift packets plying be tween Pittsburg and Cincinnati. The second class comprising transient vessels and those which, in the course of their business, pass through the Louisville Canal, The first class average in length two hundred and thirty feet; they are over fifty feet wide; their pilot house stands forty-eight feet above the surface of the water, and they require for free passage upwards of seventy feet space. It is apparent, then, that to the passage of these vessels the bridge offers a total obstruction whenever the water exceeds twenty feet in height. And this, it has already been shown, is liable to occur in nine several months of the year, and continue from two to ten days at a time. Four times, since this court commenced its session, they have been obstructed. The second class of boats are one hundred and eighty feet in length, forty-nine feet wide, with pilot house forty-seven feet above the water, and chimneys over sixty feet high. Upon the spring and fall floods, ranging from thirty to thirty-eight feet, the passage of these boats will also be prevented. It is said this class are provided with machinery for lowering a portion of their chimneys. And so they are; but the proof exhibits that this machinery has been resorted to as an expedient in order to avoid the obstruction of the Ohio falls, by passing through the canal at Louisville. And it is insisted by these defendants that all boats passing to and from Pittsburg shall be 535*] subject to the same condition; imposing upon navigation between Wheeling and Pittsburg the disadvantages of a great natural obstacle like the falls of Louisville. Different opinions have been expressed by witnesses on the subject of lowering chimneys. A few observations in connection with the draughts now before the court, will here be made. Two plans of lowering are described. By the first, a few joints of chimney at the top, turning on a hinge, are lowered sufficiently to pass through the Louisville Bridge. But this mode is confined, as evidently it must be, to cases where a short piece of small diameter and light weight is to be lowered. Yet, even in these cases, it is spoken of as being a troublesome, expensive and dangerous duty. Hinges have broken and chimneys fallen and crushed the decks; officers and men on the deck are exposed to danger at night in windy and stormy weather. The packet chimneys, weighing from 2,500 to 3,000 pounds, and five feet in diameter, require a different management. For lowering these, the only mode suggested is by the use of hinges at the hurricane deck. Let us consider, then, the condition of one of these packets in effecting its passage on high water. Through the Louisville Canal, boats pass slowly with steam and fire down, with no opposing currents and no skill required to direct their course. The whole force, skill and attention of officers and crew, may there be devoted to lowering the chimneys. But boats descend the Ohio River at the rate of from fifteen to twenty miles per hour; and upon a current running between Zane's Island and the Virginia shore at the rate of five to eight miles an hour, which shortly above the bridge, sets strongly out from the main shore to the island, thus inclining boats to the lower part of the bridge. See depositions of Duval and others. The boats, moreover, usually arrive at the bridge in the night season. When, therefore, their chimneys are to be lowered, supposing it even possible by mechanical contrivances and skill, the task is to be accomplished under the most formidable dangers. Upon a slippery deck, over boilers of steam and fiery furnace, contending with wind and current, the boat must be guided through a narrow space of one hundred feet in width, while huge chimneys, three tons in weight, are to be lowered to the deck. It is plain that any accident, under these circumstances, involves hazard and destruction to life and property, exposing officers, passengers and crew to disaster and death in the most appalling form. Numerous instances of casualties are spoken of by the witnesses, that have happened on the small boats passing bridges on the Monongahela and in the Louisville Canal. What, then, is to be apprehended at the Wheeling Bridge on the Ohio River, if the packets are to be subjected to such condition? Upon the *evidence in this case, there is no room [*536 to doubt the consequences that must ensue. With these general observations, I proceed to examine the evidence in detail. In the original answer it is admitted that there are boats that cannot pass the bridge. The first supplemental answer admits that there are six boats, the owners of which refuse to remodel their chimneys, so as to enable them, in case of a freshet, to pass under the bridge. In their memorial of January 1st, 1849, "calling upon the Legislature of the State so to amend their charter as to sanction by law the height fixed by the board of managers," it is admitted that on a rise of thirty feet, a few of the larger class of boats "will be compelled" to lower their chimneys. On a rise of twenty-five feet, still fewer boats will be compelled to do so. On a flood of twenty feet, from five to six boats "will be required to lower their chimneys." It is also confessed that the requisition imposes "little trouble" and a "small additional expense." The fact being thus confessed by the defendants, that the bridge will arrest the passage of boats, impose the condition of "remodeling their chimneys," exact the duty of lowering them in order to pass, and incur by this requisition trouble and expense, the right comes in question. That no state could grant authority so to interfere with vessels, regulated and licensed pursuant to the Acts of Congress, and navigating a river over which Congress had extended its protection as to boats, commerce and bridges, has already been shown. That Virginia neither assumed nor delegated such authority by their charter, appears from its terms. That the defendants knew they had no lawful authority, is proved by their calling on the Legislature to amend their charter and sanction by law the height of their bridge. But several grounds of justification, or rather excuse, are urged. That the only boats obstructed by the bridge have unusually high chimneys, and "belong to Pittsburg, the rival of Wheeling in commerce and manufactures." That the height of steamboat chimneys has been increased since the date of the bridge charter. That the boats obstructed are few in number. That the obstruction seldom happens, and only for short periods. That the height of the chimney is unnecessary; or if necessary, may be lowered to pass the bridge. To each of these points of defense, the evidence furnishes a specific and conclusive answer. (Mr. Stanton then entered into a critical examination of the evidence and proceeded.) Without pursuing this branch of the subject further, it is evident that a more serious obstruction to the navigation of the *Ohio, [*537 by steam vessels as well as ships, could not |