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made has a foundation in international law. We hold it for that trust, and the United States government owns its interest in that trust for the same purpose, and no other; and the commonwealth of Massachusetts has no better right to fill up this land and sell it to make money than the United States government has to sell out its right to control it for the purposes of commerce. That illustrates the principle. Suppose the government of the United States and the government of Massachusetts should sit down and trade together to make money on these flats. The government of the United States could say, "We have the right to control this for the purpose of commerce; you have no right to fill it up without our consent; we have something like an easement in this property: to be sure you have the fee, and we can make a good speculation out of it. We will barter our rights over navigation for so much money, and you may sell your right and get so much money for it, and we will divide it in this way." Would not that shock every honest man, and would it not be a shame and a scandal before the civilized world, and would not every citizen of Massachusetts see the disgrace of the general government trading in its rights to regulate commerce and making money out of the speculation?

But if you propose to fill this up to make money, you assume precisely the position that the United States government would assume. It is a trust for navigation; you have a right to use it and regulate it for purposes of navigation, and for the public health and if, as incidental to these purposes, land were made; if, using it for the purposes of navigation, or for the benefit of the public health, land happened to be made and sold, the commonwealth might possibly get money from it; but if that enters into the purpose for which you make the improvement, you are as guilty in the eye of the law of nations as a trustee would be who violates his trust and makes money by the use of it, or as a judge would be who makes his judgment because money

is to go into his pocket. There is no way of enforcing the law of nations; there is no tribunal in which it can be enforced. If the United States government chooses to sell out its right to regulate commerce, and make money by it, there is no way in which that can be enforced; no way in which that act can be punished, however ignominious it might be: but the principle is the same; you have the power to do it, but you have no right to do it.

Then again, where are we in this matter, and I will diverge a little from my course and speak incidentally of the effect of this upon the harbor, because I am now speaking of our relations to the United States in reference to the question. We call upon the United States government to take care of our harbor, and we properly do it. Massachusetts contributes to take care of the Western rivers and other harbors, and the United States takes charge of ours. The legislature ought not to have anything to do with the regulation of the harbor in that respect; it has been left by the constitution to the United States. But you propose to do something here which will materially and seriously affect the harbor one way or the other, and if it should happen to injure it, with what face can Massachusetts hereafter ask the government of the United States to spend its money for the improvement of the harbor? They will say, "You have been speculating in land here, making money, and you have it in your State Treasury, and you have damaged your harbor, and now you come and ask the general government to appropriate its money for the improvement of that harbor, to undo the damage you have done in order that you might make a little money out of it."

I know of no case where any amount, any substantial amount of noney has ever been made by any government by selling out its public rights, or something in the nature of public rights, except this commonwealth. There may

have been such cases, but the King of England could not do it; he holds the fee to this property under navigable waters in trust for the public, and he cannot sell it without an especial act of parliament, because it affects public right. And although I know nothing of the law upon the continent of Europe, I do not think there is a sovereign in Europe who has ever ventured to make money out of the sale of the property it holds charged with public trusts. I do not say that under all circumstances a commonwealth is not justified in doing it; if it was done merely for the purposes of navigation, or to abate a nuisance, as it was in the case of the Back Bay, and there is incidentally profit realized out of it, there is no reason that I know of why it should not be used. Up to within ten or fifteen years the State acted upon the principle that the riparian proprietors were entitled to all the value which there was between them and low water mark; and if the interests of navigation required that a wharf should be extended over the flats, the commonwealth, as a judicial tribunal, — that is, the legislature, as a judicial tribunal, -passed upon the question whether the public interest required that that land-owner should extend his wharf. It was a disinterested tribunal; the commonwealth never asked the question whether they could make money by extending this wharf or not, or by occupying these flats, but simply as a judicial body it said, “ Do the interests of navigation require that that wharf should be extended? If they do require it, let the proprietor extend his wharf." This judgment, as I say, was disinterested, and therefore impartial; but within the last ten or fifteen years the commonwealth has adopted the dangerous doctrine of not inquiring simply whether the interests of navigation or health required that these wharves should be extended to deep water, but they introduce this new element, this dangerous element; that is, they inquire whether the commonwealth can make money by extending this wharf further down to navigable waters. It is a dangerous element. I don't think, as I have already said (and

you will pardon me for repeating it), that any sovereign in Europe would be allowed to determine this question of what part of the great national highways should be occupied with reference to his own pecuniary interests. This judgment ought to be as pure as any judicial judgment in the world, and it was an unfortunate day for Massachusetts when this new element was introduced into these considerations. It has tainted her judgments; they are not impartial; they are not judicial: instead of being the judgments of upright judges, they are the judgments of land speculators upon these questions.

There have been one or two cases where the commonwealth has made some money from the flats, and properly; but in those cases the improvements have always been made solely for the purpose of improving navigation. The very able report, to which I have already alluded, made by the committee of 1867 upon this subject, admits substantially that rule. Speaking in reference to the improvement of South Boston flats, it says: "It is urged that the commonwealth


scribed and limited."

They did not distinctly admit that the sovereign power is thus circumscribed and limited, but they said, "assuming that it is so, we are not going beyond that limit "; so that it must be conceded, and it is understood by all, that the improvement of South Boston flats can be supported, and has been supported, solely on the ground that it was to improve commerce. The case of the mill-dam, where these flats were filled up in 1820, was, to a certain extent, exceptional. The interests of navigation were not very materially affected, but ample compensation to all private owners was made, as I have shown by reference to the case in the 2d of Pickering. The improvement then made-was made as an improvement, not in navigation, but for a highway to Boston. It was substantially for a highway to Boston. The mill-dam, the opening of which, I understand, was celebrated here at that time by a grand display and general

jubilee, was built mainly for that purpose; and although I don't think that the legislature of to day would have granted the powers that were then granted, and the legislature of that day probably ought not to have granted them,―still they were granted in reference to commercial intercourse with other parts of the State; and the filling up of this territory was mainly inaugurated for the purpose of removing and abating a public nuisance which the whole of the Back Bay had become in consequence of the discharge of drainage into its waters. I understand, also, that this contemplated the creation of tidal mills, and was also for the purpose of manufacturing, but that was incidental only; the main purpose was, to increase the facilities of intercourse between Boston and the rest of the State.

Mr. BIRD. You say the land on Beacon street was sold with the understanding that no obstructions should be erected outside of the line established in the act. Why does not the last clause in the sixth section of the act dispose of that objection?

Mr. SHATTUCK. I am very glad to have my attention called to that point. I have based my argument upon the fact that the State declared its policy that no other building should be carried beyond that line, and that it was so understood, and parties have purchased the land and acted upon the faith of it. There is no law in this commonwealth which cannot be repealed under the act of 1830, or cannot be modified. The legislature has the power to modify any law, and I take it anybody knew that any law fixing a harbor line could be modified and changed. The legislature has the power unquestionably to make any changes that it chooses; but I am merely referring to the declared policy of the commonwealth. These harbor lines were established soon after the survey was made of the harbor in 1835, when it was found or believed that encroachments were being made upon the tidal basins and upon the waters in the harbor generally, and therefore it was supposed that it was necessary to establish lines to prevent further encroachment

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