Josiah Gardner Abbott.

Argument of Hon. Josiah G. Abbott, in behalf of the petitioners before the Joint special committee of the legislature of Massachusetts, on the petition of C.P. Talbot and others, praying for the repea online

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Online LibraryJosiah Gardner AbbottArgument of Hon. Josiah G. Abbott, in behalf of the petitioners before the Joint special committee of the legislature of Massachusetts, on the petition of C.P. Talbot and others, praying for the repea → online text (page 1 of 6)
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fepsiatur^ of llassacfeusHts,





March 13, 1862.



186 2.







fejislature of itassatfettscttj,





March 13, 1862.




18 6 2.



Mr. Chairman, and Gentlemen of the Committee ;—

I know you will permit me now to congratulate you, after
having spent so long a time, and listened so patiently and care-
fully to the evidence and arguments on the one side and the
other of this important case, that we have approached so near
the close and termination of the hearing, which of necessity must
have so severely tested your patience. And I will endeavor,
gentlemen, — I say it in all fairness and frankness to you, — I
will endeavor to take no larger portion of your time, in
addressing to you the remarks which I am called upon to make
in closing this case, than is absolutely necessary for the purpose
of distinctly putting before you the claims, the arguments, and
the positions of the petitioners, which they desire you carefully
to examine and consider, believing as the result of such
examination and consideration, you will be constrained to
recommend what they ask for, a repeal of the law of 18G0,
providing for taking down their dam across the Concord River.


And I trust, gentlemen, — and I think I have a right from my
experience to say it, — I trust the argument may not seem quite
so tedious and quite so wearisome to you as it does to me. For,
notwithstanding what my friends have undertaken to charge
here, from the opening on the part of my brother Griffin to the
close on the part of my friend who addressed you yesterday,
[Mr. French,] that we have changed our ground, that we began
in 1859 with one position, telling one story, and claiming one
result, that we changed in 18G0, putting ourselves upon other
grounds, and now, that we have come here, in 1862, still chang-
ing our ground, and taking a different position, — I have to say

to you, gentlemen, now, that the great trouble with myself is,
and some of your Committee who are of our profession will
appreciate it, — that so it is that notwithstanding these com-
plaints from the other side, I am again, for the third time, obliged
to repeat myself. Having on two different times had the
opportunity and the occasion, in the line of my duty, to address
other committees and other bodies upon this same subject, I am
obliged now to go over again, the third time, with a thrice-
told tale. I am again obliged, sir, to repeat myself. And this
is really the trouble I am laboring under, not that I am obliged
to change and resort to new positions — but that I am again and
again obliged to repeat myself, than which, as some of you
gentlemen of the Committee know, nothing is more tedious and
wearisome to a speaker. I beg of you to give to this matter a
little of your time and attention, considering the charges made
of change of position, and after you have listened and heard
what I shall have to say now, that you will look at the argument
made by me last year, which was printed, and which I have
never seen from the time it was made till my attention was
called to it by my friends on the other side ; and I will agree
to abandon this case, gentlemen, if you do not find that the
grounds and positions I take here now for my clients are
substantially the same grounds and the same positions taken

I trust too, gentlemen, and I desire to say it now in advance,
because now, in going over this matter, and in imdertaking to
sum up the arguments upon one side and the other, I may happen
to pass over many matters that have been put in evidence, and
alluded to in the arguments in this case, I trust, gentlemen, that
you yourselves will not pass over such matters because I do, but
give them all due weight and consideration. There are many
and various matters in a case of this kind, vrhere the testimony
covers four, five, or six hundred pages, and where the considera-
tions are so varied, which have their effect at the time when
they are put in, and when they are before the Committee, but
which we know it is absolutely and utterly impossible, in the
course of an argument in summing up, even to allude to. I
only refer to this, gentlemen, to say, that if I do not allude to all
the details and minutios of the evidence, I trust your Committee
will not consider that it is because I think that part of the case

passed over unimportant. I can only call your attention to some
general considerations, some general matters bearing on the
subject before you, and leave to you the full and careful exami-
nation which I have no doubt you will give, of all that has been
put in, on the one side and on the other, bearing upon the
subject of your investigation.


And now, gentlemen, .to come to the case before you. It is
exceedingly important, — and I think, in this case, after you
have done what I propose to do, you have really examined
the whole case, — it is exceedingly important to look at the
history of these proceedings, to see how they originated, and
to know what the parties asked for who first obtained the
passage of the Act, for the repeal of which we are now seeking,
and to examine the ground upon which they put their case.

This matter commenced in 1859. You will see, by referring
to the papers, that in 1859, a petition was presented here,
signed by the selectmen, in behalf of the citizens of the towns
of Sudbury, Wayland and Concord, and, I think also of Bedford
and Carlisle, although we have heard very little here from the
two last named towns, the petition and claim having been
mainly prosecuted by the towns of Wayland and Sudbury, with
perhaps some help from the town of Concord. The prayer
of that petition was, that a right might be given the petitioners,
the owners of the meadows on the Concord and Sudbury
Rivers, to prosecute for the injury they had received at the
hands of the owners of the dam at Billerica. And now I ask
your attention, gentlemen, carefully, to the precise ground
upon which action by the legislature was asked for by those
petitioners, as you will find it set out in the petition of the
several towns ; all the other petitions being merely in aid of
their petition ; the petition on which the legislature of 1859
appointed a committee to sit during the recess. Now, gentle-
men, what was the ground of their complaint? Why did they
ask the interference of the legislature ? How did they then
put their case ? Why did they then ask the legislature to come
to their aid, to interfere, and do any thing? — and I shall have
occasion to allude, directly, to what they did ask the legislature
to do. Why did they ask the legislature to do something to

relieve them ? Why, sir, at that time, they asked the legisla-
ture — and I invoke you to read every word of the main petition
and those in aid of it — to come to their aid, and do something
to remedy the evils they vs^ere laboring under, because, they
said, the legislature in 1793, when they passed the Act incor-
porating the Middlesex Canal, had authorized that corporation,
under which we claim here, to do an act which resulted in the
utter and entire destruction of their property, to the extent
of one or two millions of dollars. They invoked the. aid of the
legislature, not, sir, upon any ground taken now. My friends
claim, here, that I have changed my ground, while in fact the
only change is made by them, they now putting their claim
upon the ground that there is a dam upon the Concord River,
at the Billerica Mills, which prevents improvements in the
natural condition of their lands ; while, up to this time, they
founded themselves entirely upon the alleged fact that a dam
had been raised at Billerica in 1793 and 1828, which raising
had flooded and destroyed their meadows, till then very valuable.
So it was, they tell us, that, in 1793, by improvident legislation,
obtained by means of the lobby and corruption, — a most remarka-
ble charge, by the way, to be made against our good fathers of
that day, without a particle of proof to sustain it, — an Act was
passed creating the Middlesex Canal Corporation, under which
those acting under it were enabled legally not only to injure, but
substantially to destroy, their property, to the extent of a million
of dollars. Farther and worse, they go on to claim, as an addi-
tional reason for legislative aid now, that the Act of 1793 not
only authorized the destruction of the meadows, but really
provided no feasible method of compensation for such destruc-
tion, so that, in fact, all this property was so ruined without
a cent being paid for it. And this was the strength of the
claim for present action : that their property had been injured
to the extent of one or two millions of dollars, (a most
monstrous exaggeration, as I shall show, shall demonstrate to
you hereafter,) by virtue of an Act of the legislature of 1793,
which had provided no practical remedy for obtaining compen-
sation for such injury, xind so passionately is this charge
made, that they even take credit to themselves that they have
preserved their loyalty, and remained obedient and law-abiding
citizens, under so crushing a load of injustice and tyranny.

I beg your attention, gentlemen, most especially to this claim
of the petition, that property had been destroyed under an Act
of the legislature, without proper compensation being provided
for such destruction, as the very groundwork upon which was
to be based the proposed action, then asked for.

Why, gentlemen, this is the very soul and spirit of the whole
petition, the only vitality there is in it; without it, the petition
would be but the merest dull and lifeless body, — this, and this
alone, is all that breathes life and soul into the claim. " You,"
they say, " the law making power, the sovereignty of Massa-
chusetts, have, by the exercise of that power which could not
be gainsaid or resisted, taken from a portion of your citizens
their property, and have not provided any compensation for
such deprivation. You have injured them to the extent of more
than a million of dollars, and so cunningly devised the act by
which such injury was worked, that not a cent has ever been
recovered or received for such wholesale destruction." There-
fore it is, and therefore only it is, as they urge, that the legis-
lature are bound in all fairness, and justice, and honor, to come
in and furnish some kind of aid, some kind of remedy to these
parties who have been injured by their former action. They
tell you the Act of 1793, in truth and fact, though not in the
letter, was in direct violation of the Constitution, which provides
that private property shall not be taken for public uses without
due compensation, and therefore you are bound now, however
late it may be, to right this injustice. And then, if you leave
the petitions and go to the hearing before the legislative
committee who sat after the adjournment, and spent some
twenty or thirty days, more or less, in investigating the ques-
tions arising under those petitions, you find the whole of the
testimony was brought to bear upon the claim just referred to.
If you have examined the large book in which the evidence is
reported — I know some of you were in the legislature of last
year, and must have been called on to give it some examina-
tion — the whole testimony, iipon the one side and the other,
substantially bears upon these questions : Did the Middlesex
Canal Corporation in 1798, and again in 1828, raise, under
their Act of incorporation, the dam at the Billerica Mills, and
by that raising did they flood out the meadows in question,
more than three-quarters of which were situate in the towns of


Sudbury and Wayland, as now claimed by my friends on the
other side ? Did that corporation, by their act in raising the
dam in 1798 and keeping it up from that time> and raising it
again in 1828 and so keeping it up down to this day, tlirow
back the water upon those meadows which formerly had been
dry, and the best lands in the bounds of the two towns, and
upon which the hay-making, they told us, " resembled the vint-
age in the South of France " ? The claim was, by such raising
and consequent flowing, these meadows were reduced to a mere
swamp and bog, and that the water was raised in its " ordinary
stage two feet at least," more than twenty miles from the dam.
The claim was not then, as my friends would now have you
believe, that the troubles upon these meadows, which makes
them of little value, arose mainly from natural obstructions and
artificial causes other than the dam, and that they could not be
obviated excepted by its removal ; but the claim, and the only
claim, was that the raising of the dam in 1798 and in 1828 had
injured the meadows to the extent of one or two millions of
dollars, for which remedy ought now to be provided. The claim
was that up to 1798 the meadows were most valuable, almost a
paradise ; that then, and again in 1828, the Canal Corporation
raised their dam under an Act of the legislature, and flooded
the water back upon them, not preventing a prospective improve-
ment, but doing them a then present injury of great magnitude :
indeed, that by such raising and the consequent flooding, they
were reduced from the value it was claimed they bore half a cen-
tury ago of at least one million dollars, to utter worthlessness.
I don't desire, gentlemen, to weary you by reading or referring
too much to the voluminous publication of the testimony and
petitions, but I must call your attention to one of their claims,
made on page sixteen of this petition, where they set forth, in
the first paragraph, that " This entire tract, belonging to us,
fifty-five or six years ago, together, was worth in the market a
million of dollars, and at the present day would be worth two
millions of dollars." They had before claimed that it was at the
present time of little or no value — indeed, utterly worthless.
And then, as a summing up, they go on to say, on the same
page, that " this depreciation vjas wholly chargeable to the 3Iid-
dlesex Canal Corporation.''^

But that is only one single instance of what appears in their
petition, and in that voluminous report of the evidence.. That
is but a general statement of what was claimed and contended
for in 1859 ; what was claimed and contended for in 1860, and
again in 1861, and what w^as claimed and contended for always
until the facts, the experiments which have been made, demon-
strate beyond all possibility of doubt, and all peradventure, that
the claim is utterly without foundation and utterly baseless, in
reference to the greater part of the land in reference to which
that claim had been made.

Well, gentlemen, farther than this, — because, as I said before,
it is necessary to pursue this subject and exhaust it, and when
we have fairly examined it in all its bearings, and seen precisely
on what grounds this legislation of 1860 was asked for, why
the Act was passed, we have to a very great extent examined
and mastered all there is in this case, — farther than this, I beg
you to look at the Report of the legislative committee of 1859,
appointed to sit during the adjournment. You will find in the
Report of that committee n'o reference to any action which is
not based upon the claim of the petition before referred to.
They find that the raising of the Middlesex dam, under the Act
of the legislature of 1793, was an efficient cause — otlier causes,
to be sure, there were — of the injury to this vast quantity of
land, 8,000 or 10,000 acres, as they put it. They-find, also,
that, in fact, there had never been any compensation under that
Act, awarded to, or recovered by, the people whose land had
been flooded and destroyed ; and, therefore, first, because the
Middlesex Canal dam and the raising of the dam had flowed
these meadows, mainly situate in Wayland and Sudbury, and
secondly, because no compensation had been recovered for such
flowing, the committee recommend action by the legislature.
I say, these meadows, mainly situate in Sudbury and Wayland,
because I take my friend who opened on the other side at his
word, when he told us, at the same time introducing that tell-
ing illustration from Hood, of the man who set his own shirt
tail on fire, that the complaint mainly came from those towns,
because more than three-quarters of all the injured meadows
were there situate ; I say again, I am content to take my friend
at his word, and assume it as an undoubted fact, leaving out,
however, the illustration, which I must say I cannot entirely


and fully appreciate, that more than three-quarters of all tlie
meadows in reference to which your aid lias been invoked are
situated in those two towns.

Let me quote the words of that committee : " We recom-
mend action for two causes ; mainly because injury has been
done under the Act of the legislature, and because that legisla-
tion was so improvident that nobody has obtained compensation
for that injury." That was the Report of the committee of
1859. That was the why, gentlemen, the legislature of 1860
were recommended to do any thing in this matter ; because
those under whom my clients claim, under an Act of the
legislature of this Commonwealth, had flooded the lands in
Sudbury and Wayland, and because, under that Act, the land-
owners had never received any compensation for such .flooding
and consequent reduction in value of their property, the legis-
lature are recommended to interpose', and to give to the chil-
dren, out of the public treasury, some compensation for the
losses suffered by their fathers. This is recommended as an
act of justice, and simply justico, and by no means on the
ground that public policy requires tlie interposition of the State
to enable the owners to improve the natural condition of their
lands. You have reduced, say our friends on the other side^
drawing on their im.aginations, as is their wont, for their facts,
our land, which would be, but for your act, an almost earthly
paradise, whose beauties should be embalmed in song, and so
go down to remote generations, to an unsightly bog and an
unhealthy quagmire ; and so say the committee, because this
has been done without compensation, you must now do tardy

And then, gentlemen, what do you find was the ground taken
by the committee of 1860 ? This Report of the committee of
1859 was made to the legislature of 1860, was committed to
a committee of the legislature of that year, and that com-
mittee, never having had any meetings where the parties, at least
where my clients were present, they never having given them
a chance to appear personally, or by counsel, and defend their
rights, never having given them, gentlemen, tliat chance which^
under our form of government, is given to the humblest indi-
vidual before his rights are passed upon, which is given to one
who is guilty of the most atrocious crime—the chance of being


heard before being condemned ; I say, that committee under-
took to report this law, of which we now ask a repeal at your
hands. And why do they report this law? Why, gentlemen,
they put it upon grounds distinct, clear, and certain, upon
grounds which the facts now show are entirely untenable ; they
came to conclusions which the experiments now show con-
clusively are wrong, and without any foundation in fact —
conclusions founded on an entire misapprehension of the testi-
mony, and entirely unsupported by a single fact.

Look at the Report of the committee, gentlemen. They say
that the finding of the committee of 1859 was fully sustained
by the evidence, and that nearly ten thousand acres of the best
land in the eastern part of the State had been ruined by the
dam at Billerica. Why did not that committee. Sir, before
they talked about ten thousand acres, listen to a little evidence,
and examine the matter a little more carefully ? They find
" that the dam erected by the Middlesex Canal Corporation is
an efficient cause of the flowage of nearly ten thousand acres of
the most valuable land in the eastern section of the State ;"
that this immense injury to those lands has been actually accom-
plished by the Canal Corporation, under the charter, without
the payment of a single cent of damages to the land-owners for
the injury. Such are the grounds, gentlemen, upon which the
committee reported this Act of which we ask the repeal. Say
they, we have ruined — that is, our predecessors, the Middlesex
Canal Corporation, of whom I speak as my clients, in fact,
because we claim under them — beginning in 1798 and increas-
ing in 1828, and so going on down to the present time, have
by their acts ruined ten thousand acres of the best land in the
Commonwealth, without paying a cent of compensation for such
destruction. And such are the reasons for the law they recom-
mend. A wholesale destruction of private property authorized
by an Act of the legislature, without the payment of compen-
sation ; and the charter of the Corporation doing this damage
having been forfeited, the only course is for the Commonwealth
now to come in and pay for the necessary consequences of their
own law. They tell us that this injury has been done by a law,
in violation of the provisions of the Constitution, which was
enacted hastily, improvidently, without due consideration, and
therefore they have " deemed it just, and only just, to the


meadow-owners, to give them some redress for this improvident
legislation ;" and further they say, " it is based on the principle
that the Commonwealth should do justice not only to the peti-
tioners but to all its citizens. That it owes a debt to the owners
and ancestors of the present owners of these lands for sixty
years' depreciation of their annual crops. That it cannot
restore this to these men, but it can, by the passage of the bill
reported, render them in the future, some satisfaction for past
injuries." The proposition, then, is to give these meadow-owners
redress. For what injury, for what wrong? Why, to give
them redress for the damages occasioned at our hands, from
raising the water in Sudbury and Wayland upon their
meadows, for which they had never received any compensation.
The whole recommendation is based upon the principle, that in
this Commonwealth, no one shall have his property taken or
injured for public uses, under the authority of law, unless at
the same time full compensation is provided for such taking or

Don't you see, gentlemen, that beyond all poradventure, that
such was the only reason given by the Committee for their recom-
mendation ? Why, it is so patent, it is so written upon the
whole of the five or six hundred pages of that report, and of all
tlie other reports that have been made, that " he who runs may
. read," — it is from the beginning the burden of the complaint,
and it has so continued down to the present time. So it is we
are told, that the legislature of the Commonwealth have
authorized the creation of a corporation who have raised and
kept up the dam at Billerica, and in that way have raised
and kept up the water, as the most moderate witnesses tes-
tified, two feet at the meadows in Sudbury and Wayland, so
reducing that most valuable and beautiful land to a bog and
quagmire of no manner of worth to any one. And this, we are
told, has been done without compensation. Therefore we are
told, and therefore the committee in 1860 say, " We give you
compensation from the treasury of the Commonwealth ;" on
the ground, gentlemen, upon no other ground, that the Com-
monwealth has done the whole injury, for which no compensa-
tion has been paid. Now, gentlemen, have you any doubt as
to what constituted the sole and only reason for the passage of
the law of 1860 ?

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Online LibraryJosiah Gardner AbbottArgument of Hon. Josiah G. Abbott, in behalf of the petitioners before the Joint special committee of the legislature of Massachusetts, on the petition of C.P. Talbot and others, praying for the repea → online text (page 1 of 6)