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forever. I take it that there is no more faith in any property; that no property has been held with more certainty as to its permanence and safety than property which has been acquired by building out wharves, and by building out houses, and occupying land out to this harbor line; not that the legislature had not power to change it, but that the legislature never would change it without making compensation. It is like the highways. As I have already said, nobody supposes that the commonwealth cannot discontinue its highways; nobody supposes that it has not the power to do it; they can discontinue those highways without making any compensation, but all the property in the commonwealth, real property and much of the personal property, has been invested on the faith of the commonwealth, that those highways will not be discontinued without compensation. It is the unwritten law, the unwritten constitution, the general understanding, and just so with these harbor lines. The Long Wharf proprietors extended their wharf, and hundreds of wharves have been extended to that line, and large sums have been expended in building wharves. Expensive houses have been built on Beacon street and Brimmer street, and always upon the same faith that they have in public highways, that these public highways would not be modified without compensation. I have not put this at all upon the ground that a constitutional provision is violated, a written provision, or that the Supreme Court of the United States would restrain it because it impairs contracts; for the purposes of this argument, in addressing this tribunal, I concede that the written constitution does not prohibit it, — either the written constitution of Massachusetts or of the United States; but that unwritten constitution which is equally binding, and upon which all the property in the commonwealth bounding upon highways has been invested.
Mr. BIRD. Your argument was, that the faith of the commonwealth was pledged to the owners of property on Beacon street
that there should be no farther encroachment on Charles River. You admit the power, but deny the right. Why is not the right expressly reserved in that act? As matter of fact these lines have all been changed since that act; the harbor lines have been changed all over the commonwealth.
Mr. SHATTUCK. If one instance can be found where those changes have not been made for the benefit of the riparian owner, if one instance can be found where one of these harbor lines, to which I say the faith of the commonwealth was pledged, has been changed, and the property in front taken from the owner by the legislature, when the legislature knew it, that instance has not come to my knowledge; I don't believe there is one. They have changed them, but they have changed them for the benefit of the riparian proprietors.
Mr. BIRD. Your argument was, that the commonwealth had not the right to change that line; I want to know why that right is not reserved in this sixth section.
Mr. SHATTUCK. The power is reserved.
Mr. BIRD. The power existed previously; the right is reserved.
Mr. SHATTUCK. Let me apply the principle. I am very glad to have the suggestion made. I want to see where the weak points are, if there are any. When these harbor lines were fixed, the wharf owners, and other people generally, in many cases where they thought the improvement was called for and would pay, built their wharves out to it. They did so in East Boston, and have been doing it from time to time. These harbor lines the legislature has power to change, just as it has power to repeal any act of incorporation that has been amended or passed since the year 1830; but nobody has ever contended that the legislature, where corporators were in good faith performing the duties which the public has imposed upon them, — nobody ever supposed that the legislature, had a right to come in and repeal those charters. As far as this legislation is concerned, the
Massachusetts legislature stands where the English Parliament does. The English Parliament is unlimited in its powers, it can take away and destroy private property to an unlimited extent; but there is an unwritten constitution, as sacred as our written constitution, which prohibits their doing anything which is wrong or unjust, or which impairs the rights of private property to the extent of a single dollar. We are unfortunate in some respects in having a written constitution, for this reason. The question in the legislature, as I have sometimes heard it discussed, often is, not what the legislature can rightfully do, but what the legislature has the power to do; and it is sometimes assumed, that if the written constitution, which simply limits it in certain respects, does not forbid an act, that the legislature can rightfully do it, and that the legislature has the right to take away and destroy all the property in the commonwealth, and has the right to do it because the written provision that private property shall not be taken for public uses does not forbid it. I have heard it declared that all property not protected by that provision is public property, to be confiscated. They go as far as that. I do not contend, and I wish it distinctly understood, that they have not power to change harbor lines and modify them; they have the power, but when people have acquired property on the faith of that, I say it is the declared policy of the legislature which has been steadily adhered to for years never to injure that private property by modifying those public easements. I think I have answered the question, if you mean that the legislature has a right to repeal it.
Mr. BIRD. You said that people had bought land on the northerly side of Beacon street relying on the pledge of the commonwealth that Beacon street should be kept open as a public easement, and that equally they have relied upon the pledge of the commonwealth that these lines should not be changed. I don't see why the last clause does not reserve the right to change the lines if the legislature pleases. The legislature say, "we don't
intend there shall be any misunderstanding about it "; and after fixing this line, they put in a clause reserving the right to change it as they please.
Mr. SHATTUCK. It is not quite civil, perhaps, to answer one question by putting another; but if you will allow me to do it, I should like to ask one. The harbor line was established at the end, we will say for illustration, of Long wharf, at the same time that this was established; and on the faith of that harbor line, the proprietors of Long wharf have spent a large sum of money in carrying their wharf out to that line. Now, as I understand it, the legislature has the same power to occupy the end of Long wharf that it has to occupy the north of Beacon street. I should like to ask if you think that the legislature has the right,—I am not using "right" with the meaning of power, but the right, notwithstanding that clause reserving the power in the act, to fill up and occupy off of the end of Long wharf. If you think it has, the same process of reasoning by which you arrive at that would enable you to say, they have the right to fill in on the north side of Beacon street. Has the legislature the right to fill in the end of Long wharf, Central wharf and all the other wharves after they have fixed the harbor line, after they have built out to it? If you declare, because they have reserved the power in these acts of legislation, they can rightfully do it, then the same process by which you come to that conclusion will enable you to declare that the commonwealth may rightfully occupy in the rear of Beacon street. I admit the power, but I say you have not the right.
Mr. PLUMER (of the committee). Are they not doing that in the case of Atlantic avenue?
Mr. SHATTUCK. They are paying compensation; that is used for a highway. It is merely for the benefit of commerce, and they make compensation.
Mr. BIRD. That is, under the betterment law.
Mr. KIMBALL. They are cutting off a good deal of wharf property.
Mr. SHATTUCK. Certainly they are; but Atlantic avenue is a long ways inside of the harbor line, and it is done with the approbation of everybody; it is made for the improvement of
Mr. BIRD. I think you are mistaken about its being inside the harbor line.
Mr. SHATTUCK. It is a long distance inside of the wharves; they have been built out; I am very sure that that is so. But Atlantic avenue, so far as any legal principle is concerned, does not differ from building a street in Roxbury; because it is built with the concurrence of everybody, and for public commerce, besides which the parties get the intermediate land. I don't understand that the commonwealth comes in and attempts to get the land. I don't see any resemblance to this case.
Mr. KIMBALL. You say nobody has ever attempted to get possession of the flats inside.
Mr. BIRD. That was brought up in the legislature, and Mr. Dana gave his opinion very clearly, that the commonwealth owned those flats.
Mr. SHATTUCK. The legislature never claimed it.
Mr. BIRD. They referred it to the attorney-general.
Mr. SHATTUCK. At any rate, nothing has ever been done by which the State has asserted any right to those flats. I understand they could not get it through the legislature.
Mr. KIMBALL. You are not going to assume that the action of the legislature is going to establish a right or a wrong?
Mr. SHATTUCK. The legislature could establish a great deal of wrong, if they tried.
Mr. KIMBALL. Could they establish a right?
Mr. SHATTUCK. Certainly, by granting it.
Mr. KIMBALL. Would you assume that the action of the legislature established either right or wrong?