A
SKETCH OE THE ARGUMENT OF GEORGE F. FARLEY, ESO.
BEFORE THE
SECOND COMMITTEE ON RAILWAYS AND CANALS,
IN BEHALF OF THE PETITION OF
HENRY H. BLANCHARD AND OTHERS,
FOR THE
REMOVAL OF RESTRICTIONS FROM THE CHARTERS OF THE
BOSTON & MAINE, AND THE SALEM & LOWELL,
RAILROAD S.
COMMITTEE:
HON. E. D. BEACH, HON. ALVAH MORRISON,
OP THE SENATE.
REV. J. T. WOOBDURV, EBF.NEZER LAMSON, ESQ., BENJ. WHITE, ESQ.,
WM. WHITE ESQ., BENJAMIN POND, ESQ.
COUNSEL EOS PETITIONERS :
G. F. FARLEY AND ANSON BURLINGAME, ESQRS.
COUNSEL FOE REMONSTRANTS ;
HON. J. G. ABBOXr AND THOMAS H. RUSSELL, ESQRS,
B O S T 0 N Î
WHITE & POTTER, PRINTERS.
18 5 1.
To the Îîonorahle the Senate and House of Representatives of
the Commonwealth of Massachusetts in General Court
assembled, respectfully represent :
Tlie undersigned, citizens of "Wilmington, in the county of Middlesex, that
their town is now intersected by two lines of railroad, to wit : the Boston and
Maine Kaüroad and the Salem and Lowell Bailroad ; that said raUroads run across
nearly the entire length of the said town of Wilmington ; that for the purpose
of constructing them the right of eminent domain has been exercised and private
property taken for public uses ; that highways have been crossed and the public
safety endangered ; yet, that notwithstanding all this no corresponding advan¬
tages have been secured to the citizens of said town, inasmuch as the cars of the
Boston and Maine Railroad are not permitted to stop in said Wilmington without
the consent of the Boston and Lowell Railroad Company, nor are the cars of the
Salem and LoweU Railroad Company permitted to stop within one mile on either
side of the Boston and Maine Railroad crossing.
For as much, therefore, as railroads are constructed for the benefit of the pub¬
lic, (not merely of the stockholders,) the undersigned would respectfully pray
that the trains of the two aforementioned railroads may be permitted to stop in
Wilmington, and that so much of the eight section of the act to incorporate the
Salem and Lowell Railroad Company and of the ninth section of the act to incor¬
porate the Boston and Maine Railroad Extension Company, as is consistent with
the object of this petition may be repealed, and also that the said Salem and
Lowell Railroad Company may be permitted to enter with their Railroad upon
the Boston and Maine Railroad at said Wilmington, and to use the same.
HENRY BLANCHARD AND OTHERS.
SKETCH OF THE ARGUMENT OF GEO. F. FARLEY, ESQ., IN
FAVOR OF THE PETITION OF HENRY BLANCHARD, AND
OTHERS, BEFORE THE SECOND COMMITTEE ON RAILWAYS
AND CANALS.
FEBRUARY, 1851.
In the Act of 1847, chapter 172, establishing the Boston and
Maine Railroad Extension Company, by section 9, it is provided
that " No depot or stopping-place shall be established between
Andover and Reading, without the consent of the Boston and
Lowell Railroad Corporation ! ! ! " And in the Act of 1848,
chapter 223, establishing the Salem and Lowell Railroad Com¬
pany, by section 8, it is provided that " Said Corporation may
cross the track of the Boston and Maine Railroad, but no con¬
nection shall ever hereafter be formed between the tracks of
said last mentioned Railroad Corporation and those of the Cor¬
poration hereby created, nor shall the cars of the Corporation
hereby created be permitted to stop for the purpose of receiving
or delivering passengers or merchandise, at any point upon
upon their own track within one mile of the track of the said
Boston and Maine Railroad." The petitioners pray for the
removal of the above mentioned restrictions from the charters
of said Railroads, each of which Railroads have been located
and constructed through the town of Wilmingtôn, and in sev¬
eral instances through the land of the petitioners. As these
restrictions prevent those Corporations from furnishing to the
public all the facilities for the transportation of passengers and
freight which may justly be expected from Railroad Corpora¬
tions enjoying all the numerous and extensive privileges
granted to such Corporations, it would seem clearly the duty
of the Legislature to grant the prayer of the petitioners, unless
it can be shown that some person has a right to have those
restrictions continued, or that their removal would he prejudi¬
cial to the public interests.
Now, no person claims a right to these restrictions, except
the Boston and Lowell Railroad, for whose exclusive benefit
they were originally imposed. But that Corporation does claim
a vested right in those restrictions, and assumes the ground, that
to remove them would, in effect, be to authorize the establish¬
ment of a competing Road between Boston and Lowell, one
4
terminus of which would be in the latter city, and thus hy an
Act of the Legislature, to infringe a most valuable right, se¬
cured to them by their charter. In regard to this claim the
petitioners take issue with that Corporation. They confidently
deny that the Commonwealth ever agreed that no Railroad
should become a competing Road with the Boston and Lowell
Railroad, between Boston and Lowell ; much less did they
agree that all the travel and transportation by Railroad between
those great cities should be secured to that Corporation. In
1830 the Boston and Lowell Railroad Company were author¬
ized to construct-a Railroad from Boston to Lowell, with a
provision in their charter that " no other Railroad than the one
thereby created, should, within thirty years from and after the
passing of that Act, be authorized to be made, leading from
Boston, Cambridge, or Charlestown, to Lowell, or to any place
within five miles of the northern termination of the Railroad
thereby authorized to be made." If the language of the grant
is clear and unambiguous, the intention of the Legislature
must be apparent by an inspection of the Act itself, without
the aid of any particular rules, of construction. If, however,
any doubt can arise, the well known and well established rules,
that "Grants by the State are tobe taken most strongly against
the individuals to whom they are made," and that " statutes
creating or tending to a monopoly are to be construed strictly,^'
will enable us readily to ascertain the intention, and that in¬
tention must d«termine the rights secured in the present case.
And it seems to the petitioners that the Act incorporating
the Boston and Lowell Railroad can admit of no doubt, but
expresses in clear, intelligible, and unambiguous terms, the in¬
tention of the Legislature. All right of granting charters for
Railroads was obtained, with a single exception, to wit : the
right of granting a charter for "another Railroad leading from
Boston, Charlestown, or Cambridge, to Lowell, or from either
of those places to any place within five miles of the Northern
termination of their Road. For what purpose this right was
surrendered, is not stated in the grant, and it is.perhaps not
material to enquire, as no doubt can exist as to the extent of
the right surrendered by the Commonwealth, especially as it
would have been perfectly easy to have enlarged the right by ap¬
propriate language. It may be supposed, however, that the value
of the provision to the Boston and Lowell Railroad, consisted
mainly in its effect in preventing competition and securing to
5
that Corporation a greater amount of business during the
term of its charter. But it Cannot be contended that any
amount of business was guaranteed to the proprietors of that
Road, nor that the Legislature intended to insure them agaiiist
all competition. And ordinary foresight must have indicated
to those engaged in that enterprize, that if it should prove suc»
cessful, other Railroads, without the prohibited limits, would
probably be granted, which might, incidentally, affect their
own, and that competition to some extent must be encount¬
ered ; and it is not reasonable now to suppose that such
obvious consequences were not well considered by those who
invested their property. That the Boston and Maine, and the
Salem and Lowell RailroadS) hâve been authorized by the Com¬
monwealth, can certainly have excited no wonder among the
people acquainted with the region of country through which
they have been located, and least of all to the proprietors of
the Boston and Lowell Railroad, will readily be conceded.
The only circumstance in relation to those Roads calculated to
occasion surprise, would seem to be that, under any influence,
however powerful a Legislature in Massachusetts, acting under
a solemn sense of duty to their constituents, and with a knowledge
that the public good ought ever to be deemed paramount, should
have imposed embarrassing restrictions upon those charters, for
the protection of a single corporation, and especially when it
was notorious that the means of that Corporation were already
superabundant. If, then, the Legislature retained the right of
authorizing the construction of these two Railroads, with the
usual provisions contained in Railroad charters, the Boston and
Lowell Railroad Company had no right to claim the imposi¬
tions of the restrictions originally, nor have they any legal
ground on which now to object to their removal. The right to re¬
move the restrictions as prayed for being established, the only
question that remains is one wholly of expediency.
It has been said that even if by law the Legislature retain
the right to grant charters to several Roads, which may inci¬
dentally create a route from Boston to Lowell, that may com¬
pete with the Boston and Lowell Railroad, yet it would be a
violation of good faith in the State to permit such a result.
It appears to us that this must depend wholly upon the pro¬
visions of the charter accepted by that Corporation, subject to
known rules of interpretation, whereby the intention of the-
Legislature must be ascertained.
6
Although certain compromises dehors the Constitution oí"
the United States, (for the proof of the existence of which we
must depend wholly upon history or tradition,) are said to mod¬
ify and control that instrument, we do not believe that anything
of the kind is to he engrafted upon the charter of the Boston
and Lowell Railroad. That charter was accepted with a full
knowledge of its provisions, and the rules by which it must
be construed. And the importance of competition, and the
probability that within reasonable limits it would been eouraged
by future Legislatures, could not have been overlooked by
those who accepted it. And until the Legislature shall have
granted a charter for " anoi/ier Railroad leading from Boston,
Charlestown or Cambridge, to Lowell, or to some place within
five miles of the Northern termination of the Boston and Lowell
Railroad," that Corporation have no just or even plausible
ground for charging the Commonwealth with any breach of
faith in relation to their contract. Should this be considered
by the remonstrants as a construction too strict to be just, I
take the liberty of supposing a case by way of illustration,
which I believe, however, is founded on fact. *
If the Boston and Lowell Railroad, in 1837, when in " the
full tide of successful experiment," finding that their charter
did not in express terms require them to own the land on
which their Depots were built, and desiring to secure them¬
selves in the enjoyment of a valuable franchise beyond ten
years, at which time the Commonwealth had a right,
by a reservation in the charter, to purchase it upon the pay¬
ment of a stipulated sum of money, should have built then-
very expensive Depots upon mnd held upon leases, determina¬
ble upon the event of the Railroad being taken by the Com¬
monwealth. They would doubtless have considered a charge
of a violation of good faith as a decided calumny, and still they
would have availed themselves of a construction as strict as
that claimed by the petitioners ! 1
Upon the question of expediency, we would refer the Com¬
mittee to the statements of the grievances set forth in the peti¬
tion. RTie maps and plans, and the evidence produced at the
hearing, and the several petitions, so numerously signed, in aid
of the leading petition. From all which, not only the great
inconvenience to the public, but the injustice occasioned to the
Town of Wilmington, and the citizens living on the line of
*See Appendix,
7
those Railroads, by the restrictions complained of, is made eti"
tirely manifest.
It has been said by the remonstrants, that it has not been
shown that an exigency exists demanding the removal of these
restrictions. In reply to this objection, we maintain that if we
were called upon to show the existence of such an exigency,
that it is fully established by the evidence above alluded to-
But it is contended by the petitioners, that in order to give any
•Tjlausibility to the demand, it must first be shown that those
who require them to show the exigency, have some right to
have those restrictions continued. But they deny the right of
those who make the claim, and hope they have succeeded in
supporting the proposition. Were the petitioners asking to
have a Railroad chartered, undoubtedly it would be incumbent
upon them to show that the public good required it. But they
Ssk for the removal of an evil—for relief from a grievance—-
for many of the petitioners from the towns in the vicinity, as
well as those living in the Town of Wilmington, have been
Compelled to surrender their land, by an exercise of the power
of eminent domain, for the purpose of constructing these Rail¬
roads, (an exercise of power certainly approaching the extreme
limits of the constitution,) and in many instances have claimed
as damages a sum less than the value of their lands, or have
given them without remuneration, in consideration of the an¬
ticipated benefit from a Railroád, which they expected, (and
with good reason,) would be granted, with a charter unrestrict¬
ed, and containing the usual provisions contained in such
charters.
Among the various reasons urged upon the committee for
refusing to grant the prayer of the petitioners, there is one
which to them appears somewhat remarkable. The opinions
of committees of former legislatures have been pressed upon
their attention, as possessing a degree of weight and import¬
ance little short of conclusive authority. But while the
petitioners are fully impressed with the respect due to the
Opinions of distinguished legislators, and are willing to allow
them all the importance to which they are justly entitled, they
have felt that they have an undoubted right to advert to the
circumstances under which those opinions were formed, and to
ask the committee to examine the grounds upon which they
were supported. And it is believed that those reports, written
as they are with much ability, will be found more remarkable
8
for the accuracy of the rhetoric than the soundness of the logic
exhibited in their style. For while the conclusions stated are
generally true, the premises from which those conclusions are
deduced, are as generally false—being the result of obvious
misconstructions of the act incorporating the Boston and Low¬
ell Railroad. How this error in reasoning is to be accounted
for, perhaps, it is not entirely easy to show. But it would
seem quite unnecessary to attribute it to any worse cause, than
the dangerous bias sometimes unconsciously created by party
politics. And indeed many well known facts and circum¬
stances have led the petitioners to suspect that some such in¬
fluence existed. Whatever may be our views of the wisdom
or propriety of introducing on this hearing the action of former
committees upon the question before you—it cannot furnish to
the remonstrants any just ground of complaint that we bring
to your notice a minority report, made upon the same subject,
and claim for it the consideration it fairly deserves. And al¬
though the present elevated position of its author,* and the
eminent mental character presupposed by the high office he
sustains, may be thought to give great weight to his opinions,
we rely mainly for its effect upon your minds, upon the sound
reasoning it contains. The report to which I allude will be
found among the Senate Documents of 1847, to which the
committee has already been referred ; and when you examine
the report of the committee, we ask your attention to the mi¬
nority report made at the same time by one of its members.
The petitioners, although aware of " the almost fearful odds "
at which they contend for their rights, feeling themselves ag¬
grieved, have respectfully laid before the committee such
evidence and reasons as appear to them proper ; and encour¬
aged by the kind attention and patience with which they have
been favored, if they have succeeded in satisfying the com¬
mittee that those restrictions aré unjust, and more especially
that the public interest will not be prejudiced by their removal,
they confidently hope to receive what they feel they have a
right to demand—justice at the hand of the Legislature.
• Gov. Boutwell,
APPENDIX.
The following are copies of leases from the Locks and Canals, to the Boston
and Lowell Railroad Company, and are thought by the petitioners to furnish
satisfactory evidence of the rule of construction of the charter claimed by that
Corporation when they were adopting measures to prevent the Commonwealth
from taking their franchise, according to the right reserved in the charter.
The intimate relationship between the lessors and lessees, might well lead to
a suspicion that in case the franchise should be taken, the proprietors, in addi¬
tion to the liberal allowances provided by the charter, intended to secure to
themselves a large amount of property expected from the earnings of the
Road :
This Indenture of Lease, of two parts, made and entered into this twenty-
seventh day of December, in the year of our Lord one thousand eight hundred
and thirty-seven, by and between the Proprietors of the Locks and Canals on
Merrimack River, of the first part, and the Boston and Lowell Railroad Corpo¬
ration, of the second part : Witnesseth, That the party of the first part, for, and
in consideration of the rents hereinafter mentioned, to be paid, and covenants to
be kept by the party of the second part, do, by these presents, hereby demise)
lease, and farm let, unto the said party of the second part, a certain parcel of
land, containing two acres, more or less, situated in the City of Lowell, and
thus bounded, to wit : Beginning at a point on the Southeasterly side of Paw-
tucket Canal, and on the Easterly side of Thorndike Street ; thence Southerly
on tlie Easterly side of said Thorndike Street, two hundred sixteen and seven-
tenths feet ; thence Easterly, at an angle of one hundred and eighteen and
one-sixth degrees, forty one and a half feet ; thence Northerly, at an angle of
ninety-one degrees, twenty-three minutes, one hundred and thirty-eight and a
half feet ; thence Easterly, at an angle of one hundred seven and a half de-
2
grees, four hundred and seven feet, thence Northerly, at a light angle, fifty-
seven and three quarters feet, to the Hamilton Canal ; thence by the Hamilton
and Pawtucket Canals, to the point of beginning. To have and to hold, to the
said party of the second part, the said premises, during their continuance as a
Corporation, and while they continue to be the sole owners of said Railroad, for
the annual rent of Four Hundred Dollars, to be paid on the first day of January,
each and every year, during said term. And in case said party of the second
part shall fail and neglect to pay said rent, for the space of one year after the
same shall become due, or in case said Railroad should become the property of
the Commonwealth, then, in either of these events, the said premises shall re¬
vert to, and become the proper estate of the said party of the first part. And
the said party of the second part do covenant to, and with the party of the first
part, that they will pay an annual rent to said party of the first part, of Four
Hundred Dollars, on the first day of January of each year, while they shall be
and remain the Owners and Proprietors of said Railroad, and whenever they
shall cease to be a body corporate, or shall cease to be the Owners and Proprie¬
tors of said Road, they will yield up and surrender said premises to said party
of the first part In testimony whereof, John A. Lowell, Treasurer of the
party of the first part, and Patrick T. Jackson, Treasurer of said party of the
second part, have hereto, respectively, the day and year aforesaid, interchange¬
ably put their hands and the seals of said Corporations.
CoMMOISWEALTH of MASSACHUSETTS. Suffolk, SS.
Boston, December 27,1837. Then personally appeared the above-named
Patrick T. Jackson, Treasurer of the B. andL. Railroad Corporation, and J. A.
Lowell, Treasurer of the Proprietors of the Locks and Canals on Merrimack
River, and severally acknowledged the above Instrument to be the free act and
deed of their respective Corporations.
Before me, C. R. Lowell, Justice of the Peace.
Signed, sealed, and delivered in presence of
Thomas. P. Tennf,
Approved.
Approved.
C. R. Lowell.
3
Middlesex, as, October 18,1838. Received and Recorded, by
W. F. Stone, Reg.
Cambridge, October 26,1844. The foregoing is a true copy of Record,
Book 377, Page 250.
Attest, Wm. F. Stone, Beg,
This Indenture of Lease, of two parts, made and entered into this seventh
lay of November, in the year of our Lord one thousand eight hundred and
orty, by and between the Proprietors of the Locks and Canals on Merrimack
Hiver, of the first part, and the Boston and Lowell Railroad Corporation, of the
second part : Witnesseth, That the party of the first part, for, and in considera'
ion of the rents hereinafter mentioned, to be paid, and covenants to be kept,
jy the party of the second part, do, by these presents, hereby demise, lease,
md farm let, unto the said party of the second part, a certain parcel of land,
situated in the city of Lowell, and thus bounded, to wit : Beginning at a point
jn the Easterly side of Thorndike Street, that is Northerly of, and one hundred
feet distant from Middlesex Street ; thence running Easterly, and parallel to
said Middlesex Street, to a point that is one hundred feet distant from King
Street ; thence Northerly, at a right angle, and parallel to said King Street,
one hundred eighteen and one half feet ; thence Easterly, at a right angle, one
hundred feet, to said King Street; thence Northerly, on said King Street, to
land leased the twenty-seventh day of December, in the year of our Lord
eighteen hundred and thirty-seven, by said Proprietors, to said Railroad Corpo¬
ration ; thence Westerly and Northerly, on and by said land leased, as afore¬
said, to said Thorndike Street ; thence on said Thorndike Street, to the point
ef beginning.
To have and to hold, to said party of the second part, the said premises,
during their continuance as a Corporation, and while they continue to be the
3ole Owners of said Railroad, for the annual rent of One Hundred and
Twenty-five Dollars, to be paid on the first day of January, in each and every
year during said term. And, in case said party of the second part shall fail
and neglect to pay said rent, for the space of one year after the same shall be¬
come due, or in case said Railroad should become the property of the Com-
momoealth, then, in either of these events, the said premises shall revert to,
and become the proper estate of the said party of the first part And the said
party of the second part do covenant to, and with the said party of the first part,
that they will pay an annual rent to said party of the first part, of One Hundred
Twenty-five dollars, on tlie first day of January in each year while they shall
be, and remain the Owners and Proprietors of said Railroad, and whenever
they shall cease to be the Owners and Proprietors of said road, or a body cor¬
porate, tíiey will yield up, and surrender said premises to said party of the first
part
4
în testimony whereof, Patrick T. Jackson, Treasurer of said party of the
first part, and Ozias Goodwin, Treasurer of said party of the second part, have
hereto, respectively, the day and year aforesaid, interchangeably put their hands,
und seals of said Corporations.
Signed, sealed, and delivered in presence of
Commonwealth op Massachusetts. Suffolk, ss.
■ Boston, November 10, 1840. Personally appeared the above-named Patrick
T. Jackson, Treasurer of the Proprietors of Locks and Canals on Merrimack
River, and Ozias Goodwin, Treasurer of the B. & L. Railroad Corporation, and
acknowledged the above Instrument to be the free act and deed of their re¬
spective Corporations.
Before me. Eben. Chadwick, Justice of ike Peace.
■ Middlesex, ss. Nov. 10, 1840. Received and Recorded by
Thomas P. Tennet.
P. T. JACKSON, ^
Treasurer of the Proprietors if Locks and > Seal.
Canals on Merrimack River. S
Approved.
P. T. Jackson,
Approved.
Directors of the P. T. Jackson,
Wm. P. Stone, Reg.
Cambridge, October 26,1844. The foregoing is a true copy of Record,
Book 398, Page 210.
Attest, Wm. F. Stone, Reg,