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He then inquired if any parties appeared by counsel or otherwise in regard to said matter. Messrs. E. H. DERBY, GEORGE PUTNAM, JR., and MELVILLE E. INGALLS, stated that they appeared for different parties who were abutters upon the river. Mr. BIRD then stated that the committee would assume for the purpose of the hearing that the flats from West Boston Bridge to the cross dam were to be filled in for a distance of 1,400 feet out from the Beacon street side, and that the abutters might prepare to meet that case.

After some preliminary remarks the committee at the request of counsel for the abutters, adjourned to November 5, 1869.

FRIDAY, November 5.

The committee met at half past ten, the Hon. F. W. BIRD in the chair.

Messrs. DERBY, SHATTUCK, PUTNAM, and INGALLS appeared as counsel for various parties; and Mr. HILL, (Assistant City Solicitor) for the city of Boston.

Mr. HILL. I appear here to-day in behalf of the city of Boston with a committee of the city council. The position which the city government of Boston takes is this; they are inclined strenuously to oppose the proposition now before you which they regard as a very alarming one. They do this on general principles, and from no particular interest which the city has in the Charles River; but without intending to speak, at present, finally and decisively on the question, I believe that my brother Shattuck is ready to proceed this morning with the hearing in behalf of certain abutters on Beacon street, who oppose the proposed action of the State; and, therefore, with the consent of the committee, I will reserve our right to put in evidence and to say anything we have to say, hereafter.

Mr. BIRD. Will you please state what proposition it is that the city of Boston opposes?

Mr. HILL. The city of Boston opposes the proposition to fill up Charles River within the line I see pointed out on the

map,- reducing the channel and filling up that large space of flats now covered with water. The city thinks that it is an exceedingly dangerous and fatal thing to do.

Mr. KIMBALL (of the committee). Do the city oppose any action in regard to these flats?

Mr. HILL. The city is not here to oppose anything simply for the sake of opposition, but we are here in consequence of the government being alarmed at the proposition which they understand the committee have in contemplation. They appear therefore, to oppose the proposition so far as they understand it, at present. Further than that I don't see that I can say anything at this time.

Mr. KIMBALL. I did not suppose the city came here for the sake of opposition. I did not mean to be so understood in making the inquiry.

Mr. HILL. We oppose reducing the channel of Charles River to from three to five hundred feet.

Mr. KIMBALL. You do not appear to oppose any proposed improvement of this territory, or the occupation of part of the flats, do you?

Mr. HILL. We do not oppose anything we have not heard of; we simply oppose what we understand to be the proposition now before the committee.

Mr. KIMBALL. You do not oppose anything you have not heard of?

Mr. HILL. We reserve our right to oppose or not.

Mr. BIRD. We understand the city of Boston to oppose the plan which the parties opposed to any improvement here have given the public to understand is the plan of the committee, and which is an entire misrepresentation. It is made the duty of this committee during the recess to prepare a comprehensive plan for the occupation and improvement of the flats and waterways in Mystic River, Miller's Creek, Charles River, South Bay, Fort Point Channel and Dorchester Bay. In pursuing that object, we are required to make certain inquiries.

Mr. HILL. The city of Boston, as they are now advised, think that any proposition to reduce to a substantial extent the water-area of Charles River is an exceedingly dangerous one.

Mr. INGALLS. I wish to say in regard to the statement made by the chairman in respect of our opposing this matter, that he represents it in the wrong light.

Mr. BIRD. The statements of the chairman are not matters of discussion. If gentlemen have anything to say in reference to the subject-matter of this hearing, we are ready to hear it, but we do not intend to discuss the opinions or statements of the committee.

Mr. INGALLS. We understood it to be stated by the committee last week, that they assumed for the purpose of the discussion, that the channel of Charles River was to be filled up for a distance of fourteen hundred feet from Beacon street, leaving a channel three, four, or five hundred feet wide, and we were summoned here to say what we had to say in favor of or against that in behalf of the abutters on Beacon street. We asked the committee for the evidence upon which that statement was made, and the statement was that the committee was satisfied on that point, and assumed that point to act upon, and we are prepared to meet that.

Mr. BIRD. The gentlemen can proceed upon any assumption they please.

Mr. DERBY. I appear in behalf of some additional parties. I have the honor to appear in behalf of a committee composed of seven gentlemen elected at a meeting in Ward Six, to oppose any filling outside of the commissioners' line in Charles River, considering that as settled and sacred. The committee consists of Judge Abbott, Mr. Sidney Bartlett, Mr. George M. Barnard, Dr. Hooper, representing the Eye Infirmary especially, Mr. Bradlee, of the Board of Aldermen, Mr. Nathan Matthews, and Mr. George B. Upton. I suppose many of these gentlemen will be personally present, but I wish to enter an appearance for all of them as representing the almost unani

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mous vote of the ward,

ing voice,

I believe there was but one dissentthe vote was substantially unanimous, against any filling outside of the commissioners' lines.

Mr. SHATTUCK. I appear here in behalf of several land owners, abutters upon Beacon and Brimmer streets, to oppose any occupation of the tidal basin northerly and westerly of those streets.

It is safe to say, Mr. Chairman, that no legislative committee, and no judicial tribunal in this commonwealth was ever called to the investigation of a question of such magnitude as this which is submitted to you. Most legislation affecting the property, or the health or the morals of the people, can be repealed, if it proves to be defective; but if you shall decide that one of the great tidal basins of Boston Harbor is to be filled up, and one of the great reservoirs of pure air to be occupied, and the legislature shall act upon your decision, the act is irrevocable; its influence upon the health and the happiness of the people, upon the harbor of Boston, and its commercial prosperity will continue for ages. You are charged with the high duty of advising the sovereign power upon that question, and I know, therefore, that you will listen patiently to every suggestion that can be made in relation to the matter, and that you will not decide to act, unless you are satisfied beyond a doubt that the public interest demands action, and demands it at once. There is time enough to consider the question. This land, and the circumstances affecting it may change in five, or ten, or twenty years, and you are called upon to decide for to-day whether there is any such imperative demand for the occupation of these flats, as makes it necessary to run the risk which must be incurred, both as to public health, private rights, and the interests of the harbor.

In 1840, chap. 35, the legislature of Massachusetts declared that no structure should ever be erected outside of a line two hundred feet from the northerly side of the milldam. No structure should

ever be erected. It was a solemn public declaration as to its own land, and after that declaration had been made it proceeded to release the land bounding on that line. It has received a valuable consideration from the parties who occupy it; money has been paid into the State treasury on the faith that that line was to remain, and the commonwealth has had the benefit of it. It is a well-settled principle of law, as between private individuals, that if a party conveys land for a valuable consideration, described as bounding upon a way, that that amounts to a covenant that there is a way and that the way shall continue; and in this case the commonwealth, after its solemn public declaration as to its own property, that that line was to be perpetually established, if for a valuable consideration it sells that property, and parties relying upon the faith of it spend their money and build their houses, cannot in good faith change the occupation of that territory. If the State were subject to the decrees of courts of equity, it could undoubtedly be enjoined against the occupation of those flats; but the State is not subject to these tribunals, and I am not prepared to say that the written constitution will prevent the State from the occupation of these flats (although I do not concede that it will not), but that unwritten constitution which prohibits any act by the legislature which is unjust and oppressive does prohibit their occupation. The legislature may do great wrongs: it may repeal, if it pleases, to-morrow, all the laws against murder and theft and arson, and every other crime; it may discontinue the public highways of the commonwealth and not pay a dollar of damage to anybody, if it chooses, in the exercise of its high powers, but it has no right to do it. The unwritten constitution the only one which they have in England, but which binds Parliament as effectually as our written one binds us prohibits any act of the legislature which will do injustice to any individual.

The injury to private property by the occupation of these

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