73 .65 £737 Class.__Elir3- Book JclS- .0^73 7 ^. THE PUBLIC EIGHTS r BOSTON COMMOK BEING THE KEPORT OF A" COMMITTEE OF CITIZENS. opm^w"^^;^'^' BOSTON: PRESS OF ROCKWELL AND CHURCHILL, No, 39 ARCH STREET. 1877. M3 ,4.5 ,C7B7 REPORT The attempts to turn Boston Common to semi-private uses, or to encroach upon its boundaries, have been so per- sistent, that it has seemed best to give a history thereof for the past eight years. We begin, therefore, with the attempt to phice upon the Parade-Ground, in 1869, the building for the great Musical Festival of that year. As will be seen by the record, permission was granted to erect a building there. The popular feeling was so strong, however, that the managers of that enterprise deemed it injudicious to accept the grant, and the building was placed upon land farther south and west. It is a fact, also, that at the time a committee of citizens had decided to appeal to the Supreme Judicial Court, if any attempt to build was made, and that eminent counsel were of opinion that the City Council had exceeded its legal powers in making the grant. The official report of the proceedings is as follows : — •'BoardofAldekmen, March 15th, 1869. — A petition was presented from Geo. H. Davis and others, for a change of the location of the structure designed fur the celebration of the Grand National Peace Festival. Voted to hear the petitioners at once. " A motion was made to refer the matter to the Committee on the Common, but was not pressed. " Alderman [Geo. P.] Baldwin said he should readily vote in flrvor of the location of the building on the Common, and trusted it would be carried out on the magnificent scale which its character warrants. He did not fear any precedent of this noble nature ; and the nature of this enterprise would prevent it from becoming a precedent for most under- takings hereafter." " The order was passed without a count. IV "In Boakd of Aldeumex, IMai-ch 22, 1869. — Remonstrances were presented from William Gray, Gardner Brewer & Co., and G.JO others. A hearing was at ence given, and tlie remonstrants who sjookc; were George B. Emerson, Dr. S. K. Lothrop, Dr. Jacob Bigelow, Henry B. Rogers, J. T. Prince, G. Bradford, and C. H. Dalton. " Alderman Bradlee moved that the order granting the Common be rescinded. Alderman George P. Baldwin opposed this action, and said ' This was not like an exhibition of a menagerie, or other exhi- bition for pecuniary gain, and it never could be claimed as a precedent for such purposes.' Alderman Richards favored rescinding, and Alder- man Pratt opi^osed it. *'The motion to rescind was rejected without a count." 1872. TEMPORARY STORES ON THE COMMON. The next attempt to encroach upon the Common was more justifiable, as being the act of the City Government at a time of great public excitement and distress. Immediately after the great fire of 1872, and when the painful eflfects of that calamity were naturally fresh in the minds of the people, it was proposed to allow persons who had lost their stores to build temporarily on the Common. But although the plan Avas adopted, no one availed of the permission, it being found to be impracticable and unnecessary. The official report of the proceedings is as folh)WS : — " Nov. 11, 1872. A motion was made in the Common Council, at a special morning session, b}- Mr. W. F. Robinson, of Ward 11, to allow sheds on the Common for persons burnt out. This motion went at once to the Boai'd of Aldermen, then in session, and was discussed. Mr. Healy, City Solicitor, was present, and, on the question of the legality of such action, said, ' The terms of the order showed a somewhat indefinite use of the Common. If the design were to erect buildings on the Common, such a i^urpose is prohibited. Section 39 of the City Charter prohibits the selling or leasing of the Common or Faneuil Hall, and this clearly comes within this prohibition.' Referred to the Committee on Common, etc." At the afternoon session the same day, Alderman John T. Clark reported back the order from the connnittee, in a new draft, providing that the buildings should be removed by June 1st, and advocated its passage. Passed, ton to two ; the dissentients being INIessrs. Cutter and Power. ENCROACHMENTS UPON THE TERRITORY OF THE COMMON. The third attack upon the Common was in the direction of a widening of Tremont street, in 1873. The scheme which was strongly urged was to remove the sidewalk and fence on Tremont street, and to widen Tremont street to accommodate more horse-railroad tracks. The official report is as follows : — "Board of Aldermen, June 23, 1873. " Alderman John T. Clark, from the Committee on Streets, reported in favor of removing the sidewalk on the Common side of Tremont street. June 30th, a debate took place, when Alderman S. M. Quincj- opposed the order, and Aldermen Clark, Gibson and Emery favored it, and it was passed." By the proceedings of July 28th it seems that the fence had then been taken down, and finally (Sept. 8th) it w\as sent to Mount Hope Cemetery. In 1874 nothing seems to have been done, though, under date of July 27, an attempt was made to set edgestones on the line of the old fence. Under date of October 1st it appears that the Street Commissioners were considering the question of widening Tremont street by taking part of the Common. In 1875 there were two reports made in regard to the fence on Tremont street. The majority, headed by Alder- man Clark, favored a curb only ; the minority, Alderman Quincy and others, desired an iron fence, on the plan finally adopted. By the reported debates it seems that the Common Coun- cil voted 44 to 21 to accept the minority report; and that the Aldermen so voted, 8 to 3, Messrs. Clark, Power and Worthington favoring a curb only. VI ACT OF APRIL 29tii, 1875. An net Avas obtained from the Legislature, Chapter 163 of Acts of 1875, providing that " no highway, town- way, street, turnpike, canal, railroad or street railway, shall he laid out or constructed in, upon, throuiih or over any public common or public park which has been dedicated to the use of the public or appropriated to such use without interruption for the period of twenty years or longer ; nor shall any part of any such public common or pul)lic park be taken for widen- ing or altering an}^ highway, town-way or street, previously located or constructed . . . without the consent of the inhabitants of the city or town in which the same is situated is first obtained." Such consent must be given by vote at a special meeting called for the purpose. The latest project to encroach upon the Common is the one which is familiar to us to-day, namely, the proposal to allow the Massachusetts Charitable Mechanics' Association to erect a large building on the Parade-Ground, in which to hold an exhibition. The history of this movement is as follows : On the 29th January, 1877, there was presented to the Board of Aldermen the following petition : — " To the Honorable City Council of Boston, — " The IMf.ssachusetts Charitable jNIechanics' Association, by its Boai'd of Government, respectfully petitions that it may be allowed to erect a temporary building on the parade-ground of Boston Common, next fall, for its triennial exposition of industry and art, under such regulations as the Committee on Common and Squares shall prescribe. " Joseph F. Paul, President.'''' A petition in aid of that was presented at the same time, as follows : — " To the Honorable City Council of Boston, — " The undersigned, citizens and business men of Boston, respectfully favor the application of the Massachusetts Charitable Mechanics' Asso- Vll elation for permission to erect a temporary huilrling on the parade- ground of the Boston Common, next fall, for its triennial exposition of industry and art, and join with the Association in asking that its petition be granted. " (Signed) Otis Norcross, John Dnflf, Geo. C. Richardson, James R. Osgood & Co., Oliver Ditson, Williams and Everett, R. H. White & Co., C. A. Richards, Martin P. Kennard, Hallett, Davis & Co., Hallett & Cumston, John H. Pray, Sons & Co., J. W. Brackett, Henry F. Miller, Chas. H. Bacon, President Rogers Upright Piano Co., Geo. Woods &Co., Woodward & Brown, Chas. W. Spurr, J. A. Whitmore, Geo. T. Blake Mfg. Co., W. A. Redfield, Palmer, Parker & Co., James F. Paul & Son, H. W. Kimball, R. G. F. Candage, C. G. Atwood, Geo. O. Carpenter, Eben Howes, J. Waldo Denny, H. R. Sibley, M. S. Bolles, Thos. E. Procter, J. P. Grinnell & Co., Cole, Wood & Co., F. Jones & Co., Day, Wilcox & Co., Jno. B. Alley & Co., Allen, Field & Lawrence, Henry Washburn & Co., Fogg, Houghton & Coolidge, Potter, White & Bailey, Jenkins, Lane »& Sons, James Tucker & Co." There is also a petition in aid, in the same words, signed by " Charles G. Greene, J. Warren Faxon, J. F. ]\Iorrill, F. W. Bird, Henry H. Barrows, Lyman Boynton, J. J. Richards, D. Sturtivant, John French, Anthony Hanson, Wm. Gaston, Edwin Pope, W. B. Munroe, B. D. Whitcomb, W. P. Emerson Piano Co., W. Moore, Chas. E. Jenkins, E. S. Tobey, D. N. Skillings, John W. Candler, Albert Bowker, Richard Briggs, Roberts Bros., Joseph F. Travers, W. Hovey, Frank Hill Smith, Erastus B. Bigelow." Also another petition in aid, signed by " Leopold Morse, Geo. P. Baldwin, Jno. Cummings, Jerome Jones, Asa Potter, Ivers W. Adams, Isaac Fenno & Co., Beard, Moulton & Blue, Wm. Claffin, Edwin H. Sampson, E. P. Wilbur, R. Worthington, C. M. Clapp & Co., Clapp & Balderstone, Henry C. Hunt & Co., Den- nison & Co., William Morse, Herman Askenasy, Chas. Whitney, Albert A. Cobb, Geo. C. Barrett, Gilbert Atwood, H. M. Bearce, Sam'l E. Sawyer, L. H. Palmer, Agent Fall River Line, J. W Richardson, Agent Stonington & Shoi'e Line, Edwin M. Bacon, Chas. H. Taylor, Chas. A. Smith & Co." The petition was referred to the Joint Standing Committee on Commons and Squares, and on Feb. 1st the Common Council concurred in the reference. On the 5th February, four days after the reference, at the Vlll rcirular meetinsr of the Board of Aldermen the committee reported unanimously in favor of granting the petition. Alderman Fitzgerald presented the following remon- strance : — •• To the Board of Aldermen of the City of Boston, — *'The undersigned, citizens of and tax-payers in Boston, respectfully remonstrate against jjermission being given to any persons to erect buildings on the Common for other than municiiDal purposes. They also petition your Honorable Board to grant a public hearing on this subject before any decision is made. " (Signed) W. H. "Whitmore, John C. Ropes, Abbott Lawi'cnce, Geo. O. Shattuck, Geo. S. Hale, George B. Chase, A. C. Martin, C. C. Jack- son, Joseph Healey, Jacob Sleeper, Clement Hugh Hill, Prentice Cum- mings, Wm. S. Macfarlane, J. Henry Sleeper, Saml T. Morse, Josiah F. Guild, J. Orne Green, Ed. F.Daland, Samuel S. Shaw, C. E. Hubbard, AV. Minot, Jr., G. W. Baldwin, Dwight Foster, BenJ. F. Stevens, Sewell Tappan, Jos. M. Gibbens, John Gardner, Wm. Amory, T. Jefferson Coolidge, E. R. Mudge, Sawyer & Co., AVeeks & Potter, Jno. D. Bryant, O. W. Peabody, Preston & Merrill, Perkins & Job, lasigi & Job, lasigi & Co., Cutler Bros. & Co., Barney Corey, Dexter Brothers, Charles E. French, Horatio E. Swasey, E. Worthen James." The matter was referred back to the committee, with in- structions to give a public hearing, and this reference was concurred in hj the Common Council on the following Thurs- day, Feb. 8. The Committee on Commons and Squares advertised a hearing for Saturday afternoon, Feb. 10. A full report of the hearing will be found in City Docu- ment No. 2(). Owing to a misunderstanding with the Clerk of Committees, the remonstrants supposed that they w'ere obliged to appear hy counsel. Having engaged the services of Robert D. Smith, Esq., they appeared, but only with the intention of asking for a chance to reply to the petitioners' case as it might be shown. John D. Bryant, Esq., also appeared for certain objectors. The petitioners were represented l^y Joseph F. Paul and Charles W. Slack, the President and Secretary of the Asso- ciation. They called as Avitnesses, Rev. E. E. Hale, W. B. Spooner, Jerome Jones, M. P. Kennard, D. N. Skillings, IX John H. Lester, ex- Alderman Geo. P. Baldwin, L. New- comb, G. Nowell, C. R. McLean, John Galvin and William Gaston, all in favor of granting the petition. Certain extracts from the evidence are here given to show what was desired. Mr. Panl stated that the proposed building was to be in sections 200 feet wide, and, if 600 feet long, it would cost $100,000. He estimated that the site would be worth $40,000 to the Association more than any other location. That the last exhibition yielded a net profit of $19,100, and that the Association owned a building, on the corner of Bedford and Chauncey streets, worth $300,000, supposed to represent the profits of former years, were facts mentioned. Questions Answered by Mr. Slack Mr. Whitmore. — I would like to ask a question oi" two of Mr. Slack. Mr. Slack. — Anything I can answer I shall be pleased to. We have nothing to conceal, and I shall be glad to give the gentleman any information. Q. (By Mr. Whitmore.) — As I understand, this building is to be built in sections, and taken down at the expiration of the show ? A. That is the idea. Q. Is it intended to keep it and put it together again ? A. The idea is that we shall build this building, and have it for whatever purposes it may be required for exhibitions. It is to be built in sections ; it is contemplated that each section shall be twenty feet in length, and consequently we can telescope it for any certain length. When the exhibition is over we propose to go outside and lease a small piece of land, and put up one section, under which the other dismantled sections may remain until we need them again. Does that answer your question ? Q. Partly. Xow I ask whether, at the end of three years, you pro- pose to put it up again ? A. My dear friend, we expect to have that exhibition every three years. Q. Do you expect to put it up again on Boston Common ? You don't know who will be your successors. A. I should think very likely they will come again and ask that priv- ilege of the City of Boston. Q. That is, out of any given three years, you propose to occupy the Common more than one-sixth of the time, and practically take it every third summer ? A. If the centre of population should extend out to Brookline, or out over the ]\Iill-dam, and if a proper building could be erected in that vicinity, we might go there ; but to go there now we would be out of the way. I do not know where we shall ask to put it next time. This exhibition may be a dead failure. We propose to let every enterprise stand on its own merit, whether it is ours or anybodj^'s else. The hearing was finally adjourned for one week. On Wednesda}' of the following week a number of gentle- men who had signed the remonstrance, or who favored that action, met to consult about the best course in defence of the Common. The following committee w\is appointed : William H. Whitmore, George B. Chase, Hamilton A. Hill, Abbott Law^rence, and Charles H. Dal ton. They Avere empowered to employ counsel, to appear before the City Government, the Courts, or the Legislature, and to collect money to meet the necessary expenses. It was announced that an order, introduced by Col. Henry Lee, of Boston, had been passed, instructing the House Judiciary Committee to consider whether any legislation was necessary to prevent the misappropriation of commons and parks by their custodians. The second public hearing ^vas given by the Committee on Commons and Squares, on February 17th. As it is fully reported in Appendix A> no farther remark is necessary. At this hearing remonstrances wxre presented, signed as follows : — B. R. Weld, D. D. Crombie, Ezra Farnsworth, S. S. Snelling, R. D. Smith, John T. Cooledge, Tho. Mosley, L. W. Burlen, Re.monstrants. J. C. Warren, N. P. Russell, W. A. Gage, Kirk Boott, C. M. Rollins, B. Joy JefiVies, J. H. Reed, Jos. S. Fay, Jr., W. L. Richardson, F. L. Iligginson, L. j\I. Sargent, Charles A. Prince, E. Gray, C. H. Minot, F. Skinner, F. Merriam, XI Clias. G. Davis, Henry S. Bean, R. W. Hooper, A. H. Bean, Geo. L. Deblois, F. W. Reynolds, E. Billiard, Jr., Russell Gray, Jere. Abbott, C. E. Stevens, John C. Gray, Jr., W. B. Stevens, C. J. Sprague, Samuel Wells, Henry Lee, J. N. Denison, C. P. Horton, Addison Child, C. Head, Wm. Homer, G. Jones, C. J. Morse, W. E. Perkins, L. F. French, W. F. Merritt, E. J. Jenkins, J. W. Dammerall, C. Smith, C. H. Baker, M. J. Rowen, J. J. Rowen, C. L. Richardson, C. Moulton, C. Fairchild, W. S. Dexter, W. W. Tucker, J. Murdoch, J. A. lasigi, G. B. Upton, Hall Curtis, H. Mulliken, G. S. Dabney, W. C. Wharton, C. J. Paine, F. R. Sears, R. S. Faj, Lemuel Shaw, R. C. Winthrop, Jr., C. Crowninsliield, W. B. Swett, F. B. Greenough, C. L. Young, T, K. Cummins, James H. Blake, J. F. Curtis, E. P. Joice, C. H. C. Parker, A. T. O'Leary, J. H. Murphy, J. H. Costello, T. Drummond, C. Finn, T. Smith, J. McCarthy, P. Orum, J. Gilheny, W. H. Crowley. A. Dexter, M. S. Greenough, R. H. Stevenson, J. S. Coolidge, G. Dickinson, John Parkinson, Ja. & W. Bird & Co., Geo. B. Blake, Chas. E. Stratton, A. B. Hill, L. W. Tappan, Jr., G. P. King, R. S. Milton, W. V. Hutehings, C. J. Williams, _ H. B. llallett, H. P. Chandler, E. A. Abbot, T. A. Neal, T. F. Edmands, B. F. Dwight, W. F. Matchett, W. H. Blood, C. Eastman, T. F. Shea, M. J. Buckley, J. R. Stewart, E. Borlow, W. Corbett, James Sullivan & Co. P. J. Crowley, J. H. Crowley, J. H. Clure, Also, Jeffrey Richardson, O. W. Holmes, E. H. Clarke, H. I. Bowditch, Jas. T. Fields, H. J. Bigelow, Geo. H. Kuhn, R. C. Waterston, Lyman Nichols, Martin Brimmer, Linder & Meyer, H. A. Hill, N. H. Crocker, S. W. Bowdlear, John I. Brown & Sons, J. T. Payson, J. H. Felt, Brooks & Young, A. Towne, R. B. Storer & Co., S. W. Fowle & Sons, G. Henshaw, Isaac B. Mills, A. R. Clones, A. D. Gam age, P. T. Jackson, A. C. Slater, J. Greeley, A. E. Brown, T. G. Frothingham, Xll p. C. Brooks, S. Rccd, Wm. Perkins, A. Trowbridge, John A. Lowell, D. R. Whitney, Thos. Lamb, A. T. Lowe, C. W. Kennard, T. Wigglesworth, H. S. Grew, N. Silsby, Alpheus Hardy, C. Faulkner, S. T. Dana, J. W. Austin, G. A. Miner, I. N. Fiske, W. O. Grover, W. n. Spear, AV. H. Winslow & Co. H. W. Peabody & Co. Fowle & Carroll, A. Pickering, B. S. Pray, C. B. Patten, E. C. Millett, L. Stone, J. Foster, John G. Davis, G. C. Goodwin & Co., Robinson Bi'os. & Co., Fobes, Haywai'd & Co. Schlegel,Everett&Co. B. O. & G. C. Wilson, F. Jaques, J. A. Laforme, A. W. Stetson, E. T. Cowdrey & Co., Bray & Hayes, E. E. Rice & Co., Carter, Dinsmore & Co. Gilman Bros., T. Metcalf, M. Bartlett, N. Thayer, Chase & Co., W. F. Stahl, D. Handad, F. & F. Rice & Co., , B. H. Anthony, , J. C. Tyler, G. A. Downes, Wright & Moody, Stickney & Poor, Sears & Co., Geo. B. Emerson, J. W. Balch, Samuel Gould, G. T. Stoddard, H. F. Jenks, Geo. Baird, , I. Goodwin, , S. P. Tolman, A. W. Southwick, Jona French, J. D. W. French, W. G. Brooks, N. F. Frothingham, W. G. Fay, A. D. Evans, , J. T. Bradlee, D. L. Hill, E. B. Smith, I. Riley, T. F. Haskell, P. Nickerson, E. F. Pratt, H. H. Adams, S. C. J. Parker, W. H. Cundy, E. Coolidge, E. Tarbell, R. Pei-kins, D. Babcock, J. M. Corbett, A. Brown, W. P. Kuhn, H. Inches, J. S. Loverinsr. At the meeting of the Board of Aldermen, February 26th, the report of the committee was made, recommending the passage of the original order, as follows : — " Ordrred, That the Massachusetts Charitable Mechanics'' Association be and hereby is authorized to erect a temjiorar}- building on the parade- ground of Boston Common for its triennial exposition of industry and art, to be occupied for that purpose during the months of Seiitember and October next, upon such terms and conditions as the Committee on Common and Public Grounds shall prescribe, and to be erected, main- tained and removed without expense to the City of Boston." The committee making the report were Aldermen Clark, Slade and Eobinson, Councilnien Howes of Ward 18, Smar- XUl don of Ward 10, Hiscock of Ward 21, Pope of Ward 14, and Dee of Ward 5. After debate, the order was passed by a vote of 9 to 3. Yeas : — Aldermen Breck, Burnham, Clark, Dunbar, Gib- son, Robinson, Slade, Viles and Wilder. Nays : — Aldermen Fitzgerald, O'Brien and Thompson. On March 1st the matter came up for action in the Com- mon Council. After considerable debate Mr. Spenceley, of Ward 19, offered the following- substitute ; — " Ordered, That the Committee on Common and Squares be, and they are hereby, requested, to remove all lamp-posts and all other obstruc- tions from that part of the Common known as the parade-ground, and that it be set apart for a play-ground for the youth of our city, and for parades at all times when occasion shall require." The substitute was adopted; yeas, 40, nays, 25. Yeas : — Messrs. Barnard, Barry, Blodgett, Cannon, Clarke, Coe, Crocker, Dauforth, Duggan, Fagau, Fernald, D. A. Flynn, Fraser, Ham, Hibbard, Kelley (Ward 3), Kelley (Ward 6), Kidney, Loughlin, McClusky, McDonald, McGaragle, Mo wry, Nugent, O'Connor, O'Donnell, J. H. Pierce, O. H. Pierce, Pratt, Reed, M. W. Richardson, Roach, Ruffin, Sampson, Spenceley, Thompson, Vose, War- ren, E. R. Webster, Wolcott. Nays: — Messrs. Beeching, Blanchard, Brintnall, Brown, Burke, Cross, Day, Dee, J. J. Flynn, Hiscock, Howes, Jackson, Morrill, Pearl, Perham, Pope, Roberts, Shepard, Sibley, Smardon, Stone, Thorndike, Upham, G. B. Webster, Wilbur. On March 5th the Aldermen debated the motion as amended by the Council, and refused to concur therein by the same vote of nine to three. Finally, on March 8th, the following proceedings were had in the Common Council : — " The amendment to the order to authorize the Massachusetts Charita- ble Mechanic Association to erect a building on the Common for their triennial festival came down with the non-concurrence of the other branch. XIV Mr. Smardon, of Ward 10, moved to suspend the rule and to lay the matter upon the table, that he might present a petition. The motion to suspend was declared carried. Mr. Speuceley, of Ward 19, doubted the vote, and the Council divided — 26 for and 22 against. The motion was lost. Mr. Croelvcr, of Ward 9, moved the indellnite postponement of the whole matter. Tlie question was then taken on the moti(jn to indefinitely postjDone, and it was carried — 42 yeas, 27 nays. Yeas : — Messrs. Barnard, Barry, Beeching, Blodgett, Cannon, Clarke, Coe, Crocker, Danforth, Duggan, Fagan, Felt, Fernald, 1). A. Fiynn, Fraser, Ham, llibbard, Kelley (Ward 3), Kelley (Ward 6), Kidney, Loughlin, ]McClusky, McDonald, McGaragle, Mowry, O'Connor, O'Donnell, Pearl, J. H. Pierce, O. H. Pierce, Reed, J. B. Richardson, M. W. Richardson, Roach, Ruffin, Sampson, Souther, Si^enceley, Thomp- son, Warren, E. R. Webster, Wolcott — 42. Nays : — Messrs. Blanchard, Brintnall, Brown, Burke, Cox, Cross, Day, Dee, Dohcrty, J. J. Flynn, Hiscock, Howes, Jackson, Morrill, Nugent, Perham, R. Pope, Roberts, Shepard, Sibley, Smardon, Stone, Thorn- dike, Upham, Vose, G. B. Webster, Wilbur — 27. Absent, or not voting, Messrs. Mullane, R. Pope, Pratt — 3. Subsequently Mr. Si^enceley, of Ward 19, moved to i-econsider the vote whereby the Council voted to indefinitely postpone the motion, hojiing it would not prevail." The reconsideration was lost, and this application was thereby definitely refused for the present year. In the mean time it was deemed best to attempt to procure a law, which should define and protect the rights of the public. The Committee of Remonstrants retained Messrs. William G. Russell and Robert D. Smith, to prepare such a law, and to advocate it before the House Judiciary Com- mittee. Two hearings were given by that committee, the latter, on March 8th, being a public one. Messrs. Russell and Smith appeared for the bill, and LcAvis J. Stackpole, Esq., under instructions from the City Government, appeared to oppose it. The order of the city was as follows : — " That the. Committee on Legislative ^Matters be requested to oppose any legislation which will tend to restrict the City Council in the care and management of the public grounds of this city." The bill asked for was reported by the committee, and with slight alterations was passed. It reads as follows : — XV [Chap. 223 op Acts of 1877.] AN ACT FOR THE PROTECTION OF PUBLIC COMMONS AND PARKS. Be it enacted, etc. Section 1. No building exceedino: six hundred squai-e feet in superficial area upon the ground shall be erected in or upon any pub- lic common or jjublic park which has been dedicated to the use of the public, without leave of the Legislature previously obtained. Sect. 2. Any violation of this act maybe restrained by the Supreme Judicial Court, or any justice thereof, in the manner provided in section seventy-nine of chapter eighteen of the General Statutes. Sect. 3. This act shall take effect upon its passage. [Approved May 11, 1877.] The Cf)mmittee believe that this act embodies the security which the public iuterests require, and respectfully submit this report as completing the duties with which they were charged. WILLIAM H. WHITMORE, GEORGE B. CHASE, HAMILTON A. HILL, ABBOTT LAWRENCE, CHARLES H. D ALTON. APPENDIX A. SECOND DAY. Saturday, Feb. 17, 1877. The committee met in the large committee-room at 3 o'clock, P. M. Present — Alderman Clark (chairman), and all the members of the committee. R. D. Smith nnd W. H. Whitmore appeared for the remonstrants ; Charles W. Slack for the petitioners. The Chairman. — This is an adjourned meeting of the Committee on Com- mon and Squares, on the petition for and remonstrance against granting the use of a part of the Common to the Charitable Mechanics' Association, for the erection of a temporary building for their triennial exhibition. The committee will first hear the remonstrants, wiio are entitled to the opening and closing. If this is not satisfactory to the remonstrants, they will please make their objections at the present time. Mr. Smith. — Do I understand that the case for the petitioners is closed? The Chairjian. — The whole case is open. The remonstrants will be heard first ; then the parties who present the petition ; and then the remonstrants will have an opportuuity to make the closing argument. That has been the custom in hearings before the Board of Aldermen and before committees. Mr. Smith. — Do you commence over again at each adjourned meeting? I understood that the petitioners closed their case at the last hearing, and that at this hearing the remonstrants were to go on. The Chairman. — The committee decide that this hearing is open for both the remonstrants and the petitioners. THE CASE FOR THE REMONSTRANTS. Mr. Smith. — In order to enable us to know who petitions for this, we have asked the Association to produce their records and show us who authorized this petition. We have been informed that the Association is not obliged to give any exhibition this year ; that it has not voted to do so ; indeed, that there is a strong feeling among many prominent persons connected with the Association, that there should be no exhibition this year, because it would bo a mere shadow of the Centennial, and prove a loss to the Association itself. In order to see upon what footing the Association comes here, I addressed a note to the Secretary of the Association, asking him if he would allow me to have a minute or a certified copy of the votes which had been passed in relation to this matter. I received a reply that he would send them to me. On calling at his oflEicelwas informed that they were sent to Mr. Slack, and that they were here. On asking Mr. Slack for them, he said he would not give them to me ; and I should like the committee to call for them officially. That you can do while we are determining upon what shall be the course pursued in putting our case. It seemed to us that they ought at least to ask for this privilege as an Association, before it was accorded. I have several letters which are addressed to your Honor, which I can perhaps relieve your Honor of the trouble of reading, if you wish me to. I have a letter from the Commander of the First Corps of Cadets : — Head-quarters 1st Corps Cadets, Massachusetts Volunteer Militia, Boston, February 16, 1877. Hon. John T. Clark, Chairman of Joint Committee on Common and Squares : — Dear Sir, — I am very sorry that, owing to a meeting of a board of military officers at the State House, from Li to 4 o'clock, to-morrow P. M., where, as its recording officer, I must be, I cannot go to the hearing on the subject of 2 Appendix A. the Mechanics' Association Builtlins on the parade-grounds of the Common. Therefore. I take tliis means of adding my protest, as a connnanding officer of a hattalion of militia, against the erection of a buihUng on the only oi)en-air space available within the limits of the city proper for the drilling of troops. Even the lamji-posts already there stand in violation of the rights of the Bos- ton militia, and should be removed at once. I woidd respectfully call the atten- tion of your committee to Section 83, Chapter 320, Acts of 187-t, by which the Mayor and Aldermen of Cities and Selectmen of Towns are obliged to provide " suitable places for the parade, target practice and company drill of the militia belonging to their respective cities and towns." I submit that the Common has been always in the past, and is now, consid- ered as the place j)rovided by the city for the parades and drills of the militia; every part of the area of the enclosure, except the parade ground, is so cut up by malls, paths and lamp-posts that the parade ground alone is suit- able for use by the militia. Of late paths and posts have been allowed to injure it very much for use of militia. A building there would drive the mili- tia entirely from the Common. I protest, and so I believe will every militia officer in the State who has occasion to require the use of the parade-ground. I am, very respectfully. Your obedient servant, THOMAS F. EDMAXDS, Lieut. Col. Commanding. Head-quarters Second Brigade, Massachusetts Volunteer Militia, Boston, February 17, 1877. Hon. John T. Clark, Chairman of Committee on Public Grounds : — Sir, — Being unable to appear personally before your Honorable Committee, I beg to offer this protest against the proposed occupation of the Common by the Mechanics' Association. The committee are doubtless aware that the only building available for the drill of the battalions is the drill-shed of the Insti- tute of Technology, and that it is quite insufficient for the purpose. Mili- tary organizations larger than a company must, therefore, depend entirely upon the Common for whatever drills they may desire t(j have, and it would be of great injury to that portion of the State militia within the limits of the city, if their customary parade-ground were occupied at just the season of the year when it could be of use to them. In addition to this, such occupation would render it impossible for any mili- tary ceremony, inspection or parade of any kind to be carried out. Very respectfully, ROBERT G. SHAW, Lieut. Col. and Asst. Adjt. General, 2d Brigade M. V. M. This is from Lieut. Col. Wales, of the First Battalion of Infantry : — Boston, Feb. 16, 1877. Hon. John T. Clark, Chairman : — Dear Sir, — Allow me to enter an earnest protest against the use of the Common by the Mechanics' Charitable Association, not only as a citizen of Boston, but as an officer of our State militia. You know, sir, the services this class of our citizens performed during the war ; and, to strike nearer home, what they did after our great fire ; and it seems to me that they should have some voice in a movement which is to destroj' their only available drill-ground. Very respectfullv, NAT. WALES, Li. Col. Commanding 1st Batt. of hifantry, 2d Brig. M. V. M. I heartily endorse what my son has written above. Respectfully yours. T. C. WALES. Appendix A. 3 I suppose it is in order, if your Honor please, to offer some further remon- strances. This is one signed by John C. Ropes, Wm. Amory, Thomas Jeffer- son Coolidge, Ezra Farnsworth and others. [Reading them.] The Chairman. — Quite a number of the names on this remonstrance are on the other remonstrances presented before. Mr. Smith. — That has been suggested to me ; but this one contains some others. [Reading remonstrance signed by Geo. Shattuck, E. R. Mudge and others. The several remonstrances were filed in the case.] J. D. Bryant. — In this connection will you allow me to hand in one remon- strance which I promised to deliver in person. I believe that no name will be found on this petition that is on another, and none have been added during the week. This petition should have been laid before the committee one week ago, but by some mistake it did not reach me in time. [Mr. Bryant read a remonstrance protesting against the erection of any building on the Common, signed by Oliver Wendell Holmes, Dr. E. H. Clarke and twenty-five or tliirty others.] The Chairman. — The Chair would state that he understands there has been a remonstrance signed at the Merchants' Exchange, and forwarded to City Hall ; but at the present time the committee are not aware that any such remonstrance has reached City Hall. Several gentlemen have come to the Clerk of Committees and wanted to sign their names to it. Mr. Smith. — It is one of those that I handed to you. The Chairman. — Mr. Joseph Coolidge, Mr. Daniel Parker and others called to sign it. Geo. VVm. Bond. — Please add my name to that remonstrance. [Samuel H. Russell, Avery Plumer, Henry Denny, Dr. J. B. Upham and Alexander Wadsworth severally requested the Chairman to have their names added to that remonstrance.] The Chairman. — Mr. Smith, will you proceed? Mr. Smith. — I think, perhaps, the committee ought to say whether we are entitled to see the records, by what authority the petition for the Charitable Mechanics' Association is filed. The Chairman. — The Chair can hardly see what the committee have to do with the records of the Charitable Mechanics' Association. The petition is pre- sented by the president of the Association, Mr. Joseph F. Paul, who is present, and can state whether he is authorized or not. Mr. Smith. — We want the records of the Association produced. The Chairman. — The committee decide that it can do nothing of the kind. The president is here, and can speak for himself. [The committee room being very much crowded, the hearing was adjourned to the Common Council Chamber.] Statement of William H. Whitmoke. Mr. Chairman, in rising to commence the case of the remonstrants against the proposed building, allow me to say that I think the delay in the progress of this hearing has been a fortunate one. However thoroughly the committee may have considered the case of the petitioners before agreeing upon the first favorable report, the public has so deep an interest in the matter that it may well desire to hear the evidence. Besides, I feel that the remonstrants have weighty reasons to urge which may cause you to reconsider your previous de- cision, and which, at all events, will justify them in the trifiing delay which they have caused. The petition now before you is of great importance, because it is a direct attack upon the safety of the Common, of which you are the official guardians. The care and custody of the Common has been entrusted to you chiefly with a view to its preservation for use as a common. If you decide to devote your charge to other and new purposes, you will be prepared and called upon to ex- plain that exercise of your powers. You are not in the position of a committee charged to lease the public property, and only anxious to obtain the best tenant on the best terms ; you are trustees holding a specific trust for purposes 4 Appendix A. well known for many years, and if you use your legal powers to alter the trust, you must be clear in your opinion of your duty. This attack on the Common, I regret to say, is not the first, as I fear it A^ill not be the last. In 1869 it was proposed to put the Coliseum on this same spot, and permission was granted therefor. Yet the public dissatisfaction and regret were so loudly evinced that the recipients of the favor ilcclinod to accept it. They could not afford to slight the voice of their fellow-citizens, and they wisely sought another location. Since then, in 1874, an attempt was made to take a portion of the Common for a widening of Tremont street. The fence was taken down, only to be re- placed the next year, in accordance witli the demands of tlie public. In other years projects have been brought for laying out streets across the Common, extending Commonwealth avenue, Columbus avenue, etc. In 1875, however, the Legislature intervened, and put it out of the power of any acci- dental majority in the city government to lay out a street without the proper deliberation. I desire to state briefly the history of the Common, as there is a popular delusion on this point. Tliere is no deed of the Common specifying its uses and prescribing a penalty for any breacli, though such an idea is very preva- lent. It is the remainder of tlie land included within tlie limits of Boston, when the inhabitants stopped making grants. In 1040, only ten years after the first settlement of tlie town, it was voted that "there shall be nci land granted either for houseplot or garden to any person out of the open ground or common field." In 1646 it was repeated "that no common, marsh and pasture ground shall hereafter, by gift or sale, excliange or otherwise, be counted unto propriety, without consent of the major part of the inhabitants of the town." The Common, as we know it, has preserved about its present size for over a century. It once reached to JVIason street, but what was lost by making Tre- mont street the boundary was made up by the land added on Boylston street. The uses of the Common have been as well understood and maintained as its boundaries. Originally used for the cattle of tlie town, it later became the promenade and play-ground of the iniiabitants ; always preserving the idea that it was to be open and unencumbered with buildings. Tents have been put on it for temporary purposes, and at times wlien the public would not be incommoded. Possibly less stringent rules were in force when the town had 30,000 inhabitants than have since been required. Our object is only to consider the present time, and the wants of the present gen- eration. But one precedent has been given, — that of the flower-show a few years ago. We acknowledge that it was a bad step, a mistake regretted by many of the parties interested, and not objected to at the time, only because it was so small and so brief in its duration. We propose to meet the petitioners on every point. We shall sliow that they had no authority to make the request they have; that they have no regular plan of proceeding ; that tliey have no right to claim that any special benefit will accrue to the city, and that no exception should be made in their favor. We sliall show tliat tlie land is not suited to their ])urposes ; that much better sites are open to them; and that the question of locality ought not to decide whether or not they shall hold an exhibition this year. Lastly, we shall show, by many witnesses, that such a misapplication of the Common is viewed with intense dislike by all classes of our citizens ; that it is perfectly understood that the present question involves the whole matter of keeping the Common open ; and that the public is opposed to any such curtailment of its ancient rights. I shall not try to anticipate the arguments which will be made by others, and will confine myself solely to the one point, — that this particular petition ought not to be granted. The ground I take is this : That the Mechanics' Association has not made out its case by showing that its fair will be so great a benefit to the city as would warrant you in granting tlieir request. Their whole justification lies in the idea that their exhibition will so greatly increase the demand for our manufactures as to make a decided and percep- tible gain for us. Appendix A. 5 This is not to be a show to benefit, improve or educate the spectators, such as we have had in Boston before. It is not to be a musical festival, a picture- show, nor a fiower-show ; it is not a religious nor an educational gathering. The petitioners come forward and ask this great concession from the city, mainly upon business grounds. Let us have this fair, they cry, and we will so demonstrate the superiority of New England manufactures to the crowds who will come here, that business will revive and prosperity ensue from the innumerable orders given for those goods. This is their main case, and by it the reasonableness of the application must be judged. Now, gentlemen, I contend that they are mistaken as to the effect of their fair if held, and still more as to the necessary means for managing such a fair. Great miscellaneous collections of sight-seers add little to the amount of local business. We may have any kind of a show in Boston, and bring thousands daily to it ; but the local trade is hardly influenced by it. These evidently are not the persons who will bring our great prosperity. The peti- tioners must promise us a great influx of buyers. Tliey must hope that this fair will attract the great merchants of the distributing centres South and West. They must hope that foreign buyers will come here, and then com- mence to send our manufactures to new and foreign markets. But what chance is there of this? The petitioners have given no evidence on this point. We all know that great national fairs are resorted to by many buyers ; but what probability is there that the Boston fair will so attract the world? Even the greatest of these fairs have been of very limited success; and as for these side-shows, these local exhibitions, what great influence can they hope to exert? But even if a great fair in Boston, one prepared with due care and zeal, and after the necessary years of preparation, might be a success, I must deny that your petitioners have shown that the^^ have projected such an one. There has been no preparation by the various industries of New England for this fair. We hear of no trade-meetings, no trade-committees, no can- vassing for exhibitions, no commissioners from other States, no pledge of the necessary funds. We do not find responsible capitalists or great manufac- turers at the head of the list, whose very names are omens of success. Dropping from the individuals, we do not even find the pledge of the Asso- ciation. I am credibly informed that the petitioners have not the consent of their Association yet even to the place of an ordinary exhibition. It is emphatically the crude and ambitious scheme of a few officials, not endorsed by their constituents as yet, and not backed up by any outside capital or co-operation. So far, indeed, the application reminds me of a certain episode of our last political campaign. A certain individual announced that there would be on a certain night a grand Democratic torch-light procession. He announced the route, the gathering-places of divisions, and the leaders. He asked for the police force, for Faneuil Hall, and for various other public concessions. The sagacious authorities, however, before granting his requests, made investiga- tion, and the applicant proved to be an intelligent, but irresponsible boot-black on Boylston street. Now, Mr. Chairman, I think your petitioners are somewhat in the same position. They make great promises, but they show no signs of keeping them. They are not authorized to speak for the manufacturers of New England, not even for tlieir own Association. They set out with a light heart to ask the city to grant them an inestimable boon, and they ask it with as much nonchalance as though their pockets were crammed with credentials. But at the first inquiry it seems that they have made no plans, have secured no support, and have no intelligent scheme of action prepared. Their only idea is to get the right to put a building on Boston Common, and all will be well. Gentlemen of the Committee, I for one must regard this application as unworthy trifling with a serious matter. I seriously consider it to be your first duty to dismiss the petitioners on the ground that they have made out no case. Until they can come before you with responsible backers ; witli the good-will of their own Association ; with the cordial co-operation of the great branches of our manufactures ; with a definite and reasonable plan for a 6 Appendix A. building ; in fact, until they can show a reasonable chance of success, they have no riglit to ask for a hearing. Tiie feelings with which the Boston public regards the Common ought not to be trifled with ; and of the strength of those feelings, and the extent of tlieir power, you will have ample evidence from the witnesses who follow me. Statement of Arthur Pickering. I appear here, sir, as one of the remonstrants, and I was asked to come here. I rise now simply to say that I do not take any stock in the course of the argument of the gentleman on my left. In regard to the Common, I do not feel that it is of the slightest consequence whether the officers of the insti- tution have a clear right to come before the committee and ask for tlie Com- mon, or not. The question is whether the Common should be regarded as sacred property ; and on that account I do not think it should be given to any institution whatever, except for public uses. [Applause.] The Chairman. — The Chair asks both those in favor and those opposed to refrain from applauding. Mr. Pickering. — There was a time when there were names that would cause the blood of every true Bostonian to thrill. Those names were George Washington, Adams, Hancock, Otis, Faneuil Hall, the Old South, and last, but not least, Boston Conunon. I am not astonished, sir, in these times, that there are societies willing, in spite of those old and sacred memories, and ready to come liere and ask you to grant them a privilege which they ouglit not to have. That corporation, as I understand, is wealthy. It is rich, and it can go to any place other than the one it has in view. Why should it come here and ask you, Mr. Chairman, and me to give up our individual rights in that Common? I say, sir, as a citizen, I have a right, a personal right, to that Common, and you have a personal right in it, which these gentlemen have no right to ask you to grant to them. There is a proverb that the French have which is very trenchant. It is this : " It is the first step that costs." Grant this corporation the right to put a building upon the Common for three months, or once in three years, or any given time, and it takes away the sacred charac- ter of the Common. I say sacred, because there are convictions that ouglit to be cherished by Bostonians ; and I think it is more than a sentiment which is connected with the names I have mentioned. I know it is fashionable in mod- ern times to doubt a great many events in general history. I have had to give up my convictions, as a scliool-boy, that William Tell lived ; and I do not know but gentlemen here will tell me, by and by, that George Washington never existed, and that we have not any rights or interests that ought to be pro- tected. For one I come here not caring two straws whether the Mechanics' Association have a right to come here or not, and have not all tlie vouchers that they ought to have ; but I do say that these gentlemen here have no right to grant this request. Statement of Curtis Guild. I labor somewhat under the disadvantage of having been absent from the city for the past ten da^^s, having but just returned ; but I may say I have the advantage, sir, of having been associated with yourself and other gentlemen of the City Government for the last two years in the Committee on Common and Squares, and of having had various experiences with regard to Boston Common. I have looked ui)on this remonstrance not as an opposition to the very respectable and enterprising gentlemen who form tlie Massachusetts Chari- table Mechanics' Association in any respect whatever. I recognize their enter- prise. I have known them for twenty-five years past, and ever since I have had the honor of conducting a public journal, — and 1113' record is open in that respect, so that he who runs may read, — and I think that every man who feels an interest in Boston, if he looks back upon the record of the Associa- tion, will say it is one of the noblest and best of the manj- institutions that we have in this city, and right well it deserves, and should be most thoroughly endorsed by every citizen of Boston. But that is not the question. Let us be understood. It is not opposition to Appendix A. 7 the Charitable Mechanics' Association ; but it is the question of preserving the people's park — Boston Common — upon which onslaughts have been made, as you, sir, and I know, from year to year, by those wlio think it is a mere tract of waste land, — an eligible spot for personal interests. We cannot blame the Massachusetts Charitable Mechanics' Association, or any other association, for petitioning for the use of a portion of the public park, if they think there is any chance of its being granted. That, sir, is human nature ; for any one of us are willing to get good quarters rent free. I should go to you very readily and ask you for your store for three or six months if you would let me have it gratis, because I am public-spirited. But if I should make that appeal, I think you would say, I am a business man and you are another, and we must settle it upon business principles. And we ought to meet this matter upon business principles, although business should not come into question in a proposition to occupy Boston Common. I have read, I must say, with feelings of indignation — for I am a Boston boy, a graduate of our public schools, and have walked in its streets, and played upon its Common, and I must say I read with indignation — the very utilitarian and business remarks offered here in regard to the occupation of Boston Common by the representatives of the Mechanics' Association, in last Sunday's Herald. Gentlemen in defence said they had had no time for preparation. I want to ask gentlemen of the City of Boston here, if there is any man of them who wants any time for preparation when vandalism endeavors to raze the cher- ished landmarks in Massachusetts, which have come down from the foundation of the country. I do not want any preparation; I have not had any. I believe there are many men here who can talk from July to eternity against such propositions. Every man knows that in the first history of America that is put into his children's hands, very early — almost the first — in its pages is sometliing in regard to the City of Boston ; in regard to the opposition to the Stamp Act, the Massacre, Faneuil Hall, the Old State House, the Old South Church, and in regard to Boston Common ; and we now have great historical paintings, one of which I saw last week, which is being engraved by the most distinguished engravers in this country and Europe, representing Boston boys appearing before Gen. Gage petitioning that their "coasts" on Boston Common should not be destroyed by British soldiers. That picture is now in the pub- lishers' store in New York, and they have a copyright of the engraving; and that historical event is to be perpetuated in that manner. Well, sir, what do we do here in Boston? We propose to slice off as much of that historical spot as we can for the needs of business. Of course gentle- men recognize my meaning; and I wish to say, as A. Ward says, sarcastically, " There is nothing true but business." I alter the old hymn considerably, and say, "There is nothing true but business; we want nothing but busi- ness." We do not want to instruct our children, and will have nothing left to tell where Warren and other distinguished patriots spoke. This Boston Common, sir, — the place where the British soldiers were encamped, — is an important part of Boston's history. We did not want the old Hancock House ; it was better to have two magnificent mansions which will pay taxes — that is, if their owners stay in town after the first day of May. We had better have Boston Common with streets crossing it, because you and I can get down to our places of business five minutes earlier. All these must be thrown aside, because — because — all these matters must be second to — business. Let us look at this thing in another light. A large portion of the citizens of Boston are not heard. Yes, Mr. Chairman, not heard. But you, sir, have occupied a position in the City Government for a number of years ; and there are those within the sound of my voice who know that those men who are absent are felt when the day of election comes round. Those men cannot stand up here and talk as you and I can; they have not had the advantages of education ; they cannot even come here on Saturday afternoon. Those green- jacket, overalls fellows are working hard to get ten or twelve dollars a week, — if they are fortunate enough to receive two dollars a day, — so as to get on their best clothes and walk across Boston (^ommon on Sunday; and they can- not do that if you put this building there. Those men cannot afford to come here ; if so, we would find the gallery full of them. They do not have time 8 Appendix A. to read the papers, and I doubt much whether they even know that this hear- ing is gointi on. I was astonished — not much, but I was somewhat — to see so many lead- ing gentlenion — personal friends of mine, everyone of them — in favor of putting tiiis building upon tlie parade-ground on Boston Common. Look over the names, seratim. One is a magnificent capitalist, a generous man, with a heart always open to generous impulses and petitions ; he owns an estate of macjnificcnt acres in the country, where he rides out and enjoys self, as he ought to do, the fruit of his honorable exertions ; and where his children can live and enjoy themselves, swim, play and boat, and do everything to their hearts' content. Another one is a particular friend of mine, whom I have known from boyhood u]), who last year retired from business : who owns a superb estate, and pays his taxes upon it — out of the city ; and who told me individually that he left town that his children might enjoy purer air than they can get here. I could enumerate others — one who sits so near me that I could almost throw my hat upon his head — who live out of the city of Boston. I wish to be understood. I know them personally to be liberal-hearted, charitable men, who lil)erally express their pity, not only with their pocket-books, but by their cheeks, wlien there is a call from the suffering. But I think they do forget, in their prosperity, that there is a class of people who appreciate the parade- ground upon the ('ommon. When the proposition came to put the parade- ground in its present condition, a number of people said boys wislied to play ball there. We made every objection, and said, " Here are fellows who have no business to do; they are loafing about there, and it is not safe to cross it." Well, some of them said, "Where shall we go? We can stand around the grog-shops at the North End ; but is it not better to be on the Common playing ball tlian at such places? " AVe had to let it go for a whole year to accommo- date that class of men. I argued that it was better for that class of men to be wandering over Boston Common than to be lounging around haimts of vice in other parts of the city. Well, sir, the Charitable Mechanics' Association have done a great deal for the City of Boston, and the city has outgrown them. When Faneuil Hall and Quincy Market were large enough, the city was very much smaller than it is now. I need not go into that, for I do not wish to trespass upon the committee; but it seems to me — if I might be allowed to suggest to the Association and to those connected with them, — and my friend Mr. Slack knows that I have an interest in them, — that if they would imitate the enterprise of Cincinnati, and raise a fimd for a permanent exposition building, — it might be open yearly, or as often as they open it now, and they would certainly meet with a most cordial endorsement from the pocket of the public. I have spoken without any preparation whatever; I came here at the earnest solicitation of friends But I came here to say you M'ill always be able to find us here wlien anybody is going to encroach upon Boston Common. And when they want to remove the Old South Church you can safely count me opposed to it. I believe we should have something above and beyond business, al- though my record has been that of a practical business man. But if there is to be nothing but business, when Boston Connnon is brought up before us, why, instead of granting the petition of the Mechanics' Association, let us do as Major Jack Downing said, " Let us go the wiiole figure." Let us put rows of streets on Boston Common, cover it with magnificent warehouses ; let us remove the trees and j^ut magnificent dwellings there ; let us take down Bunker Hill Monument and make a superb sea-wall of it, and cover the place where it stands with splendid warehouses. Then when every sentiment shall have given way to trade and business, you may be sure that when you strike upon men's breasts you will get, instead of the sound of true patriotism, the rattle and ring of the Almighty Dollar. Q. (By Alderman KonixsoN.) — I wish to ask the gentleman a question. Mr. Guild. I lielieve you visited the Paris Exposition of 18G7? A. I did, sir. Q. Wiiere was that exposition held? A. On the Champ de Mars. Q. That bears the same relation to Paris that the Common does to Boston, does it not? Appendix A. 9 A. No, sir. I beg pardon, it is a much larger institution, and it does not bear the same relation. Paris has the Bois de Boulogne, Champ de Mars and a great many other parks ; while we in Boston, who oppose parks, can carry out notliing of the kjnd. Q. Do you remember the building on the Champs Elysees? A. I remember visiting it, perfectly. Q. I recollect, sir, if you will allow the expression, that some friends had been travelling with you, and we expected to see you there at the same time ; but they told me you were in Ireland, engaged in climbing up to kiss the Blar- ney stone? A. Yes, sir, I have often been climbing while others waited. But what has that to do with this? Q. Did that building desecrate the Champ de Mars? A. I cannot say whether it desecrated it or not. But we are discussing the Boston Common, and not the parks of Paris. Q. But I asked you the question. A. I am not aware that the comparison is a proper one. The Champs Ely- sees are a series of public streets, and not a public pleasure-ground like the Common. Q. Docs that properly designate the Champs Elysees? A. I cannot say that it will properly bear comparison with Boston Common. Q. (By Mr. Smith.) — I wish to ask you one question, becaiise it throws some light upon this subject. Has it not been proposed to make the building on the Champ de Mars public? A. Yes, sir, I think it has. I would like to make one remark to my friend (Aid. Robinson) who asked the question, and I will adopt the American style of answering one question by asking another. Have you visited Temple Bar, in London? ' Alderman Robinson. — I have, sir; I have passed there a hundred times. Mr. Guild. — Well, sir, it is well known that that is a great obstruction to travel. It is one of the most prominent obstructions in the whole of London ; and yet it has been preserved there, tumbling to pieces and dangerous as it is, simply for its historic associations. The Londoners will not pull it down. Alderman Robinson. — There is no difficulty in passing there. There are two ways of getting round it. Mr. Guild. — So there are two ways of going round Boston Common. Temple Bar separates "Westminster from the city, — an ugly barrier in the way of public travel. Alderman Robinson. — Precisely; but it is not a public street? Mr. Guild. — It is a tolerated barrier in one of the most public and crowded streets in London. Statement of Gen. Samuel M. Quinct. Gen. QuiNCY. — I propose to occupy a very few minutes of the committee's time this afternoon, and to devote those few minutes to the presentation, with all the simplicity and force at my command, of a dry point of law. Although I cannot but regard the present attack upon the Common as of the same nature and origin — cut as it were from the same piece of cloth, as have been previous assaults — the attempted widening of Tremont street, the proposed bisection of the Common by a street, and the preliminary slaughter, by asphalt, of the elms which guarded the point of entrance at Park-street corner ; yet I propose to waive at the present time all objections to the measure upon its merits, and consider only the question of its legality. Granted, for the sake of argument, that the measure is a highly desirable one, yet all will admit that whenever action, however desirable, is clearly prohil)ited by law, the only resort of law-abiding citizens or city governments is to the Legislature ; any attempt to override or defy the law is sure to be checked by the appropriate tribunals. Now, my point is simply and very briefly this — that by the principles of laAv which govern the dedication of land to public uses, the humblest citizen of Boston has a vested right to the enjoyment of the whole area of the Com- mon, under proper restrictions for certain purposes, which right of enjoyment 10 Appendix A. for such purposes the courts will recognize and protect, and the Legislature alone can take away. The citv government cannot legally say to the humblest citizen, you must give up your use of such and such jiortions of tlie Common for the enjoyment of air, exercise, trees, grass and foliage, and accept in return something far better, if not for you individually, yet for the community at large. That citizen, however humble, would have the right to reply. Granted, that what you offer in exchange is worth tenfold what you would take away, yet the latter is my right by law, and tliercfore something which the Legislature alone can take from me against my will. Now, I think that if the committee admit, as I think they must, that we remonstrants, who can be numbered, if necessary, by thousands, are firmly convinced — erroneously if you will, but honestly — tliat that which we sliould lose by the establishment of this precedent is worth not ten but a hundred-fold that which you off'er us in exchange, then I think this committee may well hesitate before recommeiuling the measure until all doubts of its legality disappear, for the legality is certain to be tested. Now, where land is dedicated to public use as an open square of a city the public acquire a vested riglit to its possession for that use, not for an incon- sistent but better use, but /or that use (Cincinnati vs. White's Lessee, 6 Peters, 431); and in the case of New Orleans vs. United States, 10 Peters, 602, it was held that land could be so dedicated to public use without vesting the legal title in any corporate body, and that even the erection of buildings thereon was not strong evidence against the public right. But I cannot, Mr. Chairman, state the law with anything like the clearness and force with which it has been already stated, upon precisely this point of di- yerting the Common from its particular uses, by those eminent lawyers, Jeremiah Mason and Franklin Dexter. In the year 1843 the city government desired to sell a portion of the Common, l)ut, being doubtful of their right, made up a case for the opinion of the eminent counsel referred to. Those opinions were then published in pamphlet form, and, though copies are rare, one has fallen for a time into my hands. Let me read a few extracts. Mr. Mason says: "It is matter of notoriety that from ancient time, com- mencing near the first settlement of the town, the Common has always been kept as a public square or park, and freely used hy the public for military trainings, and as a place of genera! resort for exercise and the circulation of pure and wholesome air. During this long period the Coiumon has never been applied to any use inconsistent with this public use. Such use and occupation by the public from time immemorial is evidence of the dedication of this land by the owners, whoever they were, to the public for the uses and purposes to which it has licen applied." Mr. Mason cites the cases to which I have referred, and concludes: "I am, therefore, of opinion that the City Council has no lawful authority to sell the lands in question for any use inconsistent with the public use to which they were originally dedicated." Mr. Dexter says : "A clearer case of dedication cannot be stated. The grant to the public, when once made by dedication, is perpetual and irrevocable, and binds the land, into whosever hands the estate may come The will of the owner once clearly expressed and carried into effect vests a perpetual right in the public — not to the fee of the land, for that may still reside in the dedicator, and may, perhaps, be transmitted by inheritance or assigned by deed, but the right to use it for the purposes of the dedication remains with the public. It is obvious that individuals acquire vested rights in such a dedication ; they purchase and liuild in the neighborhood upon the faith of it ; and the use is not a corporate but an individual use, in which every citizen has a part and a right." Mark these words, Mr. Chairman — it is not theCity of Boston as a corporation which has a right to this particular use, for if it were the city as a corporation might waive the same ; the right is every citizen's in his individual cai)acity. Mr. Dexter continues: "It will be observed that I do not found my denial of the right of the City Council to sell these lands upon the prohibition con- tained by implication in the city charter, but upon the prior dedication to pub- lic uses, which it would require all the powers of the Legislature to revoke." The city may not sell this land, say these eminent lawyers, not because they do not own the fee, but because such sale would interfere with the pub- Appendix A. 11 lie use to which it has been dodicatecl and in which each citizen has a part and share. How manifestly absurd would be the position that thoui^h they may not by sale indirectly interfere with the citizens' use of the land for air, exer- cise, trees, .sjrass, arid foliage, yet that tliey may directly put a stop to such use over whatever extent, and "for whatever period of time they may see fit, by leasing, for the erection of buildings, a quarter, half, or three-quarters of the Coinnion, whenever, in their opinion, its occupation by corporations or indi- viduals will help trade and advance the general prosperity ! The fallacious reasoning of those of the City Government who are known to favor the granting of this petition, seems to me to be as follows: "The Common," tliey say, "is in our hands to be devoted to such purposes as we honestly and firmly believe will be for the highest and best interests of all the citizens. This use of it will be for such highest and best interests, there- ^o^-e"— Not so, Mr. Chairman, the City Government have no more right to devote the Common to what they believe to be its highest and best use, because they so believe, than you or I individually have. The Legislature, and the Legislature only, can deprive the meanest citizen of his right to a certain par- ticular use, be it the best or the worst — the right to its use for an open park and pleasure ground — a refuge from the close streets and red-hot bricks of July to a little oasis in the midst of the city, where grass, trees, foliage, and cooling breezes may be enjoyed withont money and without price. We remonstrants have been styled, Mr. Chairman, by the advocates of this petition, obstructionists and foes to progress. I, for one, accept the title wil- lingly. The progress which we would check we believe to be false progress — dangerous progress. What man would trust himself aboard a railway train if tliose obstructionists and foes to progress the brakcmen should, following a bad example, strike and desert tlieir posts? Convinced, as we are, that in this matter our municipal locomotive is in danger of being switched on to a •wrong track, we propose to hold down the brakes by every legal and proper exertion, with our utmost force, until the train is brought to a standstill, and we are confident of success. Statement op Alexander Wadsworth. Mr. Wadsworth. — I would state at the beginning that I am a member of this Association, and have its welfare as much at heart as any other member. But that is not the question before you at this time. I simply Avish to state a few facts and some reasons why the committee, or the City Council, should not grant this petition. In 1824:, when the city proposed to sell the land south of Boylston street, and run a street down to the empty basin, the citizens were called together to vote upon two, among other, questions ; one of wliich was, whether they should sell the land ; and another was, whether, if they did sell the land, they would have inserted in the deed of conveyance that no building should ever be placed or erected upon the Common and the land west of Charles street, extending to the channel and from Beacon street, 1,3.50 feet soutli to Boylston street. The citizens voted not to sell the land, and they voted, by a very large vote (more than three to one) that, if the land was sold this condition should he inserted in the deeds. Now, I mention this to show the feeling of the citizens at that time in regard to placing buildings upon the Common ; and I believe that feeling is much stronger to-day among the citizens than it was then. Then, at a period in the early part of our civil war, it was proposed to place a building on the parade ground on the Common, for the purpose of drilling the recruits, that were being enlisted at that time, during the evening and in unpleasant weather, when the open air was uncomfortable. If that building had been placed on the Common, I must call your attention to the fact that it would have stood on a different footing from this case ; — it was to be built by the city and under the city's control ; — and if there ever was a case that would justify the erection of a building on the Common, I think that was one. But there was so strong a feeling against putting buildings upon the Common that the project Avas defeated. Then again, sir, during the preparations for our first great musical jubilee, there was an attempt made — and it was advocated by many influential and 12 Appendix A. /ealmis people who had an interest in the matter — to put the Coliseum upon the Coiniuun ; hut the people rose up in their majesty and defeated that. Then, sir, after our preat fire in 1872, there was a project to allow mer- chants, who had had their stores burned down, to erect stores on the Tremont- street mall ; hut that was defeated. And now, sir, comes the Massachusetts Charitable Meclianics' Association, and asks the City Council to let them have, say one-tenth of the whole Common, including the l)urying-ground, and it would take probably more than that. I was not present at the last hearing, but I saw it stated that the building was to be 200 feet wide, and from 800 to 1,200 feet long. A building 800 feet long would cover about four acres, and one 1,200 feet long, six acres; and with the surroundings, fifty per cent, more, would make from six to nine acres that this Association would want to occupy and monopolize. That, sir, is from one-sixth to one-eighth of the whole Common. Now, Mr. Chairman, I do not believe the Committee or the City Coimcil will grant this petition ; but, for the sake of showing the result, we will suppose they do. Here is a precedent formed ; the Association has an exhibition once in three years ; this building is to be built in sections, to be taken down and preserved for future use ; at the end of three years they will come back again with this same petition and want the ground again ; and again at the end of six years, and so long as the grass grows and the water runs, if the Associa- tion exists as long. After this privilege has once been granted, and the pre- cedent established, they can come with a good claim for a second occupation ; and it would be a great inconsistency not to grant it. Well, suppose they do. Suppose, Mr. Chairman, that Mr. Barnum should come along with his great Hip- podrome, and ask leave to pitch his tent on the Common ; after having allowed it in this way. how could you refuse him? But if you do refuse him, one of these days Messrs. Moody and Sankey will come to Boston and find their tab- ernacle taken down or occupied for other purposes, and they will ask you to allow tliem to build a temple on the Common ; and these gentlemen have a large following, and, sir, if you sliould not be hero yourselves, your succes- sors may be a little weak in the knees, and with such a following as that, and with your example, and tlijs precedent before them, they would hardly think of denying the request. Now, sir, if we have too much park in the Common already, and can afford to part with a large part of it during that season of the year when it is of any use to those citizens who live in close, narrow streets and hot dwellings, when thousands of them flock daily to this land; if we have more than we want, and can spare part of it for other purposes, why is this great interest manifested in laying out parks in districts of the city where they will never be of any use to those who visit the Common and reap the benefits, but will be mainly for those rich men who own carriages or have the means of driving out to them, and who go out of town in summer — some to avoid taxes and some to enjoy the cool breeze among the mountains, or those who go to reap the benefit of the bracing airs of the salt water on the seashore? But, Mr. Chairman, these are not the main reasons, in my judg- ment, for giving these parties leave to withdraw. The City Charter expressly says that the City Council shall not lease or sell the Common ; that is one of the things the City Council cannot do, and it is the very thing this Association asks you to do ; for you will find — I am no lawyer, but there are lawyers here who will say whether it is sound law or not — the principle is laid down by Ex-Governor Washburn, late professor of law in Harvard College, and Chairman of the Judiciary Committee of the Htmse of Representatives, that in this very thing — where the city grants this Association the exclusive use and control of a part of the Conunon to erect buildings, take admission fees, and enjoy the benefits and profits of the exhi- bition — the principle is laid down that that is a lease ; whether the Association pays the city or not [applause], that it is a lease. It does not require the pay- ment of rent to make a lease of it. Now, sir, I believe that there are lawyers here who will tell you that this is good law, and that your City Solicitor will tell you the same thing. Now, Mr. Chairman, I think that this committee, acting on their own respon- sibility, and with good judgment and common sense, will report against the granting of the petition of this Association, and that the City Council will give them leave to withdraw. If they do not, I have a full and unbounded Appendix A. 13 I faith that there are citizens enough in Boston yet who still appreciate the beauty and use for which the Common was set apart, and who have often stepped forth before to prevent this beautiful ground from being cut off and frittered away ; and I believe they will come fortli again and prevent this beautiful Com- mon from being desecrated by this act of the Association; and if I am wrong in my belief that the committee will reject this petition, then I believe these men will very easily, through the courts, obtain an injunction which will set this matter at rest forever. Q. (By Mr. Smith.) — Has your Association voted in approval of this petition? A. I have no knowledge of it, sir. I see by the record in the clerk's hands here that there was a meeting held on the third of January which submitted the matter to the government of the Association, and if they approved of it, they were to call another meeting of the Association; but I have had no notice of a meeting since then, and I think they are making the petition without any vote of the Association. I believe that, if called together, the Association would vote it down. [Applause.] Statement of George B. Chase. Mr. Chase. — Mr. Chairman and Gentlemen of the Committee : — In the very few words which I had the opportunity to say to you at the close of the first public hearing of the petitioners and remonstrants, I called your attention to one consideration, which seemed to me fairly to cover the whole case upon which you are asked to report. I asked you to give due weight to the fact, that there has been, within the last twenty years, a great increase in the number of people of both sexes and of all ages who use and enjoy the Common during the summer and autumn months. This increase is duo hardly more to the growth of our population, than to a change which has gradually made itself apparent in the habits of our native-born fellow-citizens, who now use all our parks and squares more than their parents did before them. They conform in this use naturally to the ways of our foreign population, who have brought from Great Britain and the continent of Europe, especially from the latter, the habits of the people of their native lands in the simple, hearty, and earnest enjoyments they obtain out of doors upon Sundays and holidays, traits which some of your own number, Mr. Chairman, must have noticed in their pleasant visits to the difierent capitals of the Old World. I ventured briefly last Saturday to outline my own belief that the increase of numbers upon the Common in the pleasant season was such as to make it, at last, necessary for the City of Boston, once and for all, to declare that no structure should be hereafter erected upon the Common ; neither should there be any concession or limitation hereafter imposed in the use of it for the bene- fit of one class or one body of our fellow-citizens rather than another, except such as may be necessary to keep it from detriment, or to enhance its beauty. I ask once more, Mr. Chairman and gentlemen, that you will fully and fairly consider the question in the light of this view of the case. With the recollec- tions of the last few years in my mind, Avith the distinct impressions of the greater number of men, women, and cliildren, who upon sununer afternoons have poured out of the Common and Public Garden upon the broad avenue which runs into the sunset, when I have been able to count them by hundreds in an evening walk from Arlington to Dartmouth street, I feel most strongly that there has been no sufficient consideration among the few which the peti- tioners have submitted to you which should weigh upon your minds. You are bound, as you must admit, to recollect the convenience of all, and to favor the hasty pretensions of none, who may be disposed, for a selfish object, however worthy that object may be in itself, to interfere and curtail the enjoyments of the vast numbers of those who in summer are unable to leave the heated city in which they live. A friend of mine said, the other day, that it was but fair to assume that, in proportion as the population within the limits of old Boston increased, so the number of persons who visited the Common increased. This assumption is so modest that I believe no man will deny it. But it states but half the truth, for within the last thirty years the Common, which was so long upon the out- 14 Appendix A. skirts of our population, has now come to lie in about the centre of it. The habits of Bo>crmittedto read, and which forcibly illustrates the danger of taking the first folse step in this matter. Souie one has suggested that Philadelphia has given us an example, in allow- ing the Centennial Exhibition to be held in Fairmount Park, which we may well follow, with the Mechanics' Exhibition in this city. Mr. Chairman, the City of Philadelphia has indeed set an example, well worthy of imitation by us, in her broad and liberal policy with regard to public parks. Let us follow it; and when we can point to three or four thousand acres set apart for the health and recreation of the people, it will be time enough to consider whether we shall allow buildings to be placed on any part of them. In this connection I should like to answer the question put by the honorable member of the committee (Alderman Robinson), in reference to the exhibi- tion in Paris, in 1867, and the use of the Champ de Mars. It is a part of the property known as the Ecole Militaire, near where the remains of the great Emperor Napoleon are buried. This piece of ground in front of the building is the parade-ground for the exercise of the troops, and belongs to the govern- ment of France, and not to the people. The people used it when the govern- ment was not using it for military purposes, and in 1807 the government set it apart for the purpose of the very brilliant exliibition which was held in the French capital. Now, one word in regard to the Champs Elysees. The first time I walked through it, when a boy, there was not a building upon it ; and you had to go beyond the beautiful arch at the end of it to get to the circus outside. But one building after another was allowed to go up, until there is a series of structures of various kinds, so that now, as you walk from one end to the other, you see cafes, concert-rooms, and all sorts of exhibitions ; and all the old beauty is gone. Those who have been in Paris recently, and wiio were in Paris thirty years ago, know of the change which has come over it. I do not think that any one wants to see Boston Common made like the Champs Elysees. The people of Boston have given unmistakable evidence that they desire and expect to have more land than they now enjoy for park purposes, not less. As you know, Mr. Chairman, they have so voted, and they have so said in one of the most thoroughly representative and enthusiastic meetings lately held in Faneuil Hall. They have not been met in this desire as they hoped to be met; nothing has yet been done to extend the area of our public grounds, now so circumscribed and insufficient. Could you get at the views of our fellow-citizens who crowded the meeting referred to, and of thousands who were not there, but who sympathized with them, you would hear an earnest and emphatic protest against this proposal to deprive them of some of the few park privileges which they now possess, and to endanger them all. Mr. Chairman, by refusing compliance with the request of the Mechanics' Charitable Association, you will raise no difficult questions; you will estab- lish no dangerous precedents ; you will imperil no puldic interests. By acceding to it, you will take, to say the very best of it, a step of doubtful expediency, of doubtful legality, of doubtful right. Permit me, with all respect, to commend a safe old maxim to the consideration of the committee : Whe7i you are in serious doubt as to what you ought to do, do nothing.. [Applause.] Mr. Hill read the following 20 Appendix A. Letter from Dr. Edward H. Clarke. 18 Arlington street, Feb. 11, 1877. Dear Sir : — I am liappy to acknowledge the receipt of your note of the 8th inst., informing me of a proposed hearing, by the City Council, of remon- strants against the occupancy of a part of the Common, by the Mechanics' Charitable Association, and adding, " We should be very glad to receive a note from you to be read at the hearing, if you are in sympathy with the remonstrants." I dare not flatter myself that anything I can say on the matter would exert any influence upon the City Council ; but, if it would, I should regard it alike as a privilege and a duty to say it, and to ask the city fathers to hesitate before granting the permission. Tlic story is told of a Scotchman, whose friends remonstrated with him for not setting up a carriage in conformity with his wife's request, to whom he replied, " It is not the cost of the carriage I am thinking of, but of what goes with it and comes after it." And so with the city, and the request of the petitioners, it is not the building on the Conimon which is to be thought of, but of what goes with it and will come after it. We cannot guard too diligently against the slightest infringement, or possible future curtailment of the few open spaces we possess. After the first step, all is easy. An attractive, temporary building, the curious treasures of wiiich will draw crowds to visit it, would easily pave the way for a permanent structure on the site of the temporary one ; and that, for many others. Once occupied, the place would be so convenient that it would be a pity not to utilize it for similar structures. That parsimony which sees extravagance and increased taxation, instead of health, economy and diminished taxation, in parks, would grasp the earliest opportunity to confiscate the Common to streets and buildings, and would shelter itself behind the flimsiest excuses for doing so. I once heard a lively Bostonian expatiate, with earnestness and enthu- siasm, on the good time which he prophesied would come, when the useless waste of the Common, now a financial burden on the backs of tax-payers, would be occupied with handsome streets and stately warehouses, from which the City Treasury would draw fabulous sums of money, to the great relief of the taxable inhabitants. It is to be hoped that the good sense of the citizens of Boston, and of the city government, will prevent the accomplishment of any such prophecy as this ; but neither the citizens nor the government can be too vigilant in guarding against its possible fulfilment. Eesist the l)egin- nings of encroachment and of danger, is a principle as true now as it was among the ancients ; as applicable to Boston as to Home. I am, very truly yours, (Signed) EDW. H. CLAKKE. Hamilton A. Hill, Esq. Questions answered by Mr Hamilton A. Hill. Q. (By Alderman Robinson.) — Did I understand you to say that the Champ de Mars and the Champs Elysees are one and the same place? A. No, sir; I said that the Champ de Mars lay near to the Hotel des Invalides. Q. Are they not more than two miles apart? A. No, sir; I understand it is part of the military establishment; they are in the same neighborhood. The troops are exercised on the Champ de Mars. That is the parade ground of the French army. Mr. Smith. — Mr. Chairman, as there seems to be a great deal of interest felt in the Champ de Mars, I will call Mr. Adams, who was brought up on the Champ de Mars, and let him tell how far.it is from the Champs Elyseos and the Jardin Mabille. Statement of Julius Adams. Mr. Adams. — I shall not undertake to say how far the Champ de Jlars is from the Champs Elysees, for I do not recollect the exact distance ; but, as I understand the Champ de Mars, it is the parade ground of Ecole Militaire, or Military School. It has not a tree upon it ; it is simply a flat piece of Appendix A. 21 ground, a large plain, and on that account, when there are any military reviews in the city of Paris, they take place there. I recollect seeing the review there after the war in Italy, when it was said there were fifty or sixty thousand troops on the ground. But the Champ de Mars has no buildings upon it ; none have ever been erected there, and I do not think the govern- ment would allow any to be erected there, except the exhibition that took place there at one time. It has no relation to, or connection with, the Champs Elysees. Q. (By Alderman Robinson.) — Is it connected with the Hotel des In- valides? A. I do not recollect whether that has anything to do with it or not. The Champs Elysees, as I understand it, is simply a street leading from the Place de Concorde to another street whicli goes through the Bois de Boulogne. On the borders of that street are erected various buildings. In 1857 they erected the exhibition building, which is now allotted to the holding of exhibitions of colonial produce, and sometliing of that sort. But there is also on the Champs Elysees, or upon the border of it — it can hardly be said to be on the Champs Elysees itself, for if the government should undertake to erect any buildings upon the Champs Elysees itself they would find the people erecting barricades and resisting — a building which is now used for little exhibitions, such as the Punch-and-Judy show. I must say, Mr. Cliairman, now that I am on my feet, that I oppose the placing of this building upon the parade-ground on the Common. I oppose it, because it is a bad precedent to establish. If this building is erected, there is no reason at all why it should not con- tinue there, because if it is once built it may be then urged upon the Board of Aldermen that the expense of placing it there has been great; that an ex- hibition is to occur there at another time, and therefore the expense of taking it down should be dispensed with, and it may continue there forever. AVe people who occupy the Common during the summer months — for I occasionally go there myself — do decidedly object to having this class of ex- hibitions there particularly. It is an exhibition which entails smoke and noise. There must be an engine there, and that must have fire and smoke ; and if they are to carry out the exhibition as they have heretofore, there must be shafting and all the multifarious machinery which go to make up that class of buildings. I believe that the mechanics of this City of Boston, after having worked through the week — when they get work to do — in tlie shop, using the ham- mer or attending to machinery, or wliatever else, when the Sabbath comes, or if they desire to take recreation in the evening, do not care to be disturbed by the noise of machinery ; that they care for rest, and that they do not care to be disturbed by the noise heard during the week. Neither do they care to smell the smoke, nor hear the noise of the machinery. They desire to look upon the green grass, and flowering trees, and hear the singing of the birds ; and, further yet, they desire to have some young lady com- panion and hear her noise rather than any trip-hammer, or anythmg of that sort. I do not know as I can add anything to what has already been said, but I must say that it is a surprise to me that the Massachusetts Charitable Mechanics' Association should come here and propose any such measure. Why, Mr. Chairman, I would suppose that the Mechanics' Charitable Association was an association for the advancement of the City of Boston. The mechanics of the City of Boston desire to preserve that Common ; they always have, and they always will. But the Mechanics' Association simply comes here for one pur- pose, and that simple purpose is to save money. That is all there is in it ; that is all there is of it. But the Common was not established for the pur- pose of saving money. We perfectly well understand that all similar pro- jects that have come before the City Government in the past would have saved money, if carried out. We perfectly well understand that, if the Common were divided into building lots and sold, that would pay oflT the public debt. But, Mr. Chairman, the City of Boston, the people of Boston, are nof going to allow anything of that sort ; and I am surprised that the Board ot Aldermen of the City of Boston should give any serious attention to any such petition. 22 AlTENDIX A. Statement of Thomas J. Gaegan. Mr. Gargan. — We have heard an arfjuiiient from a member of the legal profession that is calculated to throw some lisht upon the legal aspect of the question ; but I am afraid, after the spectacle we have had at the national capital, — fifteen men who are lawyers, and seven on one side and eight on the other, as to what is the meaning of the constitution of the country, — that a legal opinion on this matter would not have much legal effect. I am opposed to the erection of a building on the Common, for this reason : Because I believe it to be a public reservation, set apart for public uses. Now, the question for this committee to decide is. Is the purpose for which it is asked one of those public uses for Avhich the Common was intended? Let lis be just and fair to tlie petitioners. No doubt they are respectable, public-spirited men, who have taken a great interest in public affsiirs. I know them to be such. The petition j)urports to come from the Association; but the worthy president has not signed it in behalf of the Association. It is signed l)y Mr. "Joseph F. Paul, President," and he says he appears in behalf of the Association and the citizens of Boston. Well, it is said it is going to establish a precedent. If it is a good precedent, establish it ; if it is a bad precedent, it ought not to be established. Well, now, what do they ask? They ask, as has been stated, for four or five acres of a public reservation, ground that has been set apart as a breathing spot, where the humblest people may go and get air. It may be charged here that most of the men who have appeared before the committee in opposition are men of respectaliility and capital. So much more ought they to be entitled to credit. They are not here for their own comfort and con- venience. They are here that others may be benefited ; and I commend them for their interest in the masses of the people. But I come here to speak, in a measure, for tlie mass of the people, who ask that this building be not put there. Oh, but it is said that in times past, there have been flower-shows, circuses and menageries on that ground. If they had never been there, the gentlemen asking for this would not have had a bad precedent to quote ; and because that has been done, they come and ask for it for their own use. They say they only want a temporary building ; that there are to be no foundations, no piles driven, and that they will not interfere with the trees and shrubbery. Now, what is a Mechanics' Exhibition? It is an exhil)ition where machinery of all kinds is shown ; it is but a large work-shop. How do they propose to put a boiler there and an engine to run the machinery, without a foundation? But if they put it there Avithout a foun- dation, you have gone one step further. You consented to a tent, and if you consent to a building without a foundation, the next step is to put a building there with a foundation. But it is said this building is to be taken away at the end of the exhibition, and put up in sections elsewhere. The fact has been quoted that a building was put on the Champs Elysees, in front of the Hotel des Invalides. But liow was it put there? It was put there by the Emperor of the French, in violation of law, for a temporary purpose ; and it remains there to-day. That is the way to establish a dangerous precedent in the City of Boston. Here we have in the centre of the City of Boston a park of forty acres, and j'ou cannot ])ut yourselves upon record in favor of this petition. We have made too many bad records in the State and nation ; so let us move cautiouslJ^ I know that no gentleman here can be influenced by the fact that his action here may cost him his re-election to the city government. Tliat is a small matter. But I do believe there is not a man on this committee who will place himself upon record, no matter what may be the result, but believes that tlie verdict of his fellow-citizens will be against such action. Let us not establish this bad precedent simply for the jturpose of keeping the balance of trade in our favor. It is said it is going to bring trade to Bos- ton. Why, that was the argument used for the first jubilee, and for the second one. Perhaps some of the merchants of Boston can tell, by their cost, how much trade they got by the Peace Jubilee. It is, perhaps, a good argument to use to bring trade. And I have no doubt many gentlemen would like to have that large piece of ground leased, for itwcmld pay one-fourth of the taxes assessed upon the city. But we should not encroach iipon the riglits of tliose people who have no other place to go. You may say it is all sentiment. There must be sentiment. It makes history. The sentiment of our citizens Appendix A. , 23 saved the Old South Church, and erected Bunker Hill Monument. We must have places for recrcfttion in order to produce the best condition of health. Let me ask you, gentlemen, if there is no other consideration than business? Do not record your verdict in favor of desecrating the Common. Statement of Dr. Hodges. Dr. Hodges. — I can add little, if anything, to what has been so well and emphatically said by the remonstrants, and certainly it would be very com- monplace for me to repeat the arguments made in this room by so many minds in regard to the healthful and sanitary influence of parks and commons. But I should be glad to call your attention to the fact that few persons, except physicians, can realize to what extent the Common is used by the invalids, by thousands, and by aged people, for their brief and short walks. This propo- sition to plant a lai-ge building upon the parade ground, apart from the general objection that might be urged against it, closes a very large portion of the entrances to the Common, if not to the Public Garden, and therefore it restricts the use of the Common for one of its most important purposes. Then, again, sir, it is also with difficulty that the Common is kept in the wholesome and salu- brious condition in which it must be in order to promote the health of those who resort to it for pleasure and health. It costs a great deal to keep it clean and tidy, as it must be, with those ends in view. A very considerable body of police are stationed there during the whole week to prevent any one from sitting down on the grass, to prevent any one from trespassing on the green sod, in order that it may be kept in condition to have it of some use when that privilege is granted to the citizens of Boston. A number of people will resort to this exhibition ; the employes and exhibitors alone will constitute a large body of people. Many of the visitors will come from the city, but probably the larger portion of them will come from the country ; they will bring their lunches and food with them, and we shall certainly have a result that is dan- gerous to the public health, or to the health of the people who feel compelled to resort to it, and have resorted to it for so many years for their very little airing. I only wish to emphasize, from this point of view, the objections made to this use of the Common. I certainly join heartily with everybody else who has objected. But this proposition comes more pertinently from a physician than from some one else, and I trust that the remonstrants will be heard, and their petition granted. Statement of Richard Olney. Mr. Olnet. — Mr. Chairman : — I shall detain the committee but a few moments ; but so much has been said and well said, I am not certain but that I ought not to trouble the committee at all. I do desire to say, however, that so far as I know, the remonstrants — or so far as I represent any of them — do not come here to undervalue the i^Mechanics' Association or the objects for which it was incorporated ; they did not come here to deny its usefulness. They fully appreciate the beneficence of its aims and objects ; and I, for one, — and I know the remonstrants believe with me, — do not pretend to impute to the officers of the Association, who have made the application that we are consider- ing, anything but the best possible motives. On the other hand, I realize and believe the remonstrants generally believe that this petition is made and pressed in entire good faith, because the petitioners believe that the laudable objects of the Association will be promoted by the granting of it, and that the public interest requires that it be granted. The remonstrants, I believe, will concede that. While doing it, however, they do insist that the petition is a mistake ; they do insist that the petitioners have been misled by their excessive zeal for the particular objects of the Asso- ciation, and have thus overlooked other objects of at least equal importance. And I desire to say that I believe that their grounds of objection are, in the first place, that it would be unwise to grant it under any circumstances ; and, in the next place, it is not within the province of the city government to grant the petition, if it were convinced that it would be wise to do so. Now comes the first point, — the impolicy of granting the petition — I shall dwell on it only a single moment. 24 Appendix A. The obvious and leading considerations affect ng it have been so forcibly presented already tliat if anj' others remain to be statt'd, there are plenty of gentlemen here to do more ample justice to them than I can. I will only say that the petition applies for the exclusive use, by these petitioners, of four acres of the Common during four months of that season of the year when it is most frequented and enjoyed ; to deface the most ornamental part of the city for so long a time by a structure which, however well adapted to its par- ticular pur})oses, cannot be anything but a blotch and disfigurement in that place, and, with its surroundings, to deprive the boys and the youths of their play-ground : to take from three hundred and fifty thousand people one-tenth of the forty acres which, for one-fourth of the year, is their only refuge from the heats of inidsummer, and but for which they would scarcely know there are such things as trees and leaves and flowers. To do this, we have no other exigency except the request of a corporation which, however worthy its aims and objects, is not an ol)ject of charity, and is wealthy enougli to carry on its exhibition just wiiere it pleases. You will see that tlie consequence of doing this seems to be in the highest degree unwise, and, so far as a large class of the population is concerned, an absolute infringe- ment of tlieir rights ; and it is to be borne in mind, as has already been ob- served here, that those most interested against this petition are not represented here, except by proxy ; they are those whose daily lal)or must earn each day's bread ; who have not gardens and play-grounds and lawns of their own ; who cannot take wings and go to the seashore in the dog-days, and to whom this public Common gives the only glimpse of the bloom of summer, and that it is their onl}- chance for fresh air. It is this class of our population whose interests are especially at stake now and involved by this petition, and who cannot come here to this City Hall and attend this hearing; and whom, there- fore, it becomes the city fathers to protect witli a special vigilance, becavise of their enforced silence. But I pass over that, and come to the other considera- tion : Is it within your province, as representing the city government, to do what the petition has asked? I confess that I do not see where you get or derive any such power. Tlie clause of the city charter which forbids your leasing the Common, or any part of it, has already been quoted, and it may be well contended that the exclusive occupation of the Common for so long a time by a private corpora- tion is in direct conflict with the expr(?ss provision of the city charter. Cer- tainly that provision is a mere nullity if it merely means that you cannot give to them a formal lease, but by the vote of two branches you may give them exclusive rights in the Common which they can have in a lease. If that is the result of this provision of the city charter, it had better be expunged at once, for it is a cheat and a delusion. But I do not care to pursue it further. It Avill have to be decided by the courts of law. But there is another thing : In dealing with this Common, the city govern- ment is acting as the trustees of the public, the terms of whose trust have been definitely settled by universal acquiescence for a great and indefinite length of time. The city holds the Common not merely for tlie general public benefit, but for the benefit of the public in a prescribed and particular way. It might be shown to be of the greatest possible benefit that the city should cover the whole Common with shops and buildings, occupied l)y tenants at will, and that the rent received should be applied to the reduction of the taxes of the poor. Suppose that were demonstrated to be the best possible thing for the public to do with the Common ; would any man contend that the city has power to dis- pose of it in that way? Of course no one will ; and the reason is that the city holds the Common not on a general trust to benefit the poor in any way it may see fit, but in a prescribed and particular trust, and to l)enefit the public in a prescribed and particular way ; and that precise and particular trust is that it shall always be kept open as a pul)lic Conunon and public ground for the use, comfort and enjoyment of all the inhabitants. The care and custody of the Common is committed, l)y the city charter, to the City Council; not that it may deviatt' from, but that it may carry out, the precise and particular trust which I have cited ; that it may see that it is kept up, and that it is not en- croached or depredated upon or put to any other use. When, therefore, the petitioners ask you to shut out the public from a large part of the Common, to roof it in and give the exclusive use of it for a long time to a private corpora- Appendix A. 25 tion, it is simply asking you to commit a bieach of the trust upon which the city holds the Common. And there is another matter : If you should think that the jiublic good Avould be best promoted for a given length of time, by allowing the Mechanics' Association to use it for the purpose for which they want it, you are bound to say that it is not competent in the premises for you to do the thing they want, for the city government are not authorized to pro- mote the public good in that way. It holds the Common upon a strict trust for a precise and particular pur- pose, and it has not the liberty to sanction the use of the Common against the uses for which the Common is devoted in accordance with that particular trust. I am taking more time than I meant or expected to, and I will only say this in conclusion : That it is of the utmost importance that no precedent should be established of the kind which would be established by granting this petition. Once let an application of this sort succeed, and you open the doors to similar applications without number for all sorts of purposes, and you will never know when or where you will be able to stop. You may think that you, as members of the present city government, can deal with such an application for the appropriation of the Common, and that the Common will be safe in your hands; but what about your successors? What guaranty of their ac- tion? What secui-ity can you give that future city governments will not parcel off the ground and use the Common for purposes which you and all fair- minded men regard as improper? The only safety is in not setting the exam- ple ; in not making the precedent ; in taking the true and just and distinct ground that this Common is held for a certain prescribed and definite purpose, and that it is not to be devoted to any other use. Statement of Dk. J. Collin Warren. Dr. Warren. — I want to say something against this project, and add my testimony to tliat of Dr. Hodges, of tlie great advantage which the Common is to people in want of health. But there are sanitary considerations to be thought of besides the one wliich he alluded to. The Conmion is a very valua- ble part of the city as a purifier of the atmospliere of the city. The grass and the leaves of the trees, I need hardly tell you, h^ve a sanitary influence wliich is of no small amount. Tlie gases whicli escape from the manufactories and liouses are very deleterious, and they are aflPected by the oxygen from such large spaces as the Common. As you all know, we have a high death-rate in this city, and are laboring under sanitarj' disadvantages. You will remember that a few j^ears ago there was a large volume of impure air exhaled which had a deleterious effect. For that purpose the Common should be kept in as high a degree of cultivation as possible. The grass should be kept at the maximum, and should not be allowed to lie around on the ground. It was, therefore, with great satisfaction that I witnessed, last summer, the alteration of the parade ground from a barren waste to a large green lawn, exhaling pure gases, which added largely to the sanitary effect produced by the Common. Now, sir, if we put a large building, as is advocated to-day, — the size of which appalled me when I first heard of it, — on this beautiful lawn, wliich we, at considerable expense, have succeeded in perfecting, what will be the result ? A gentlemen has alluded to the fact that there will be no foundations. But, sir, tliere will not only have to be foundations for the machinery, but privies, and trenches to take away the refuse of all kinds, which will have to be dis- posed of. Many of you will recollect — unfortunately in your own families — the effects of the bad drainage at tlie Centennial in Philadelphia. It was due to the unusual restraint placed upon the system of disposing of the sewage from that part of the city, and it is a well-known fact that disease was bred by tlie imperfect arrangements. It was less generally dwelt upon in tliis country than in other cimntries. Some of the English journals I have seen laid great stress upon the imperfect arrangements for drainage. We have not succeeded in carrying out sanitary measures to the same extent that they have in Eng- land ; hence, they are surprised. It appears, therefore, to-dny, that the drain- age of this city is not so jicrfect as to insure the air of the Common beyond infection. You will remember when the greater portion of the parade ground was a sheet of water. It has hardly disappeared ; but the ground has been gradually made more solid, until last year it was brought to a state of perfection 26 Appendix A. It is uncertain whetlicr the tlrainnse on sueli a tract of land as that could all be carried off, and the consequence would be a gradual infection of this tract of land, which, I think, would be deleterious. I have not alluded to the fears that some others have expressed, of tlie gradual extermination of the Common. I think the precedent, from a sanitary point of view, will be an exceedingly dangerous one. ilr. Smith. — I should like to call upon ex-Aldernian Brooks, who was a member of the City Council at the time of the Coliseum, and, as I understand it, he was upon tlie committee to consider that question. I understand that they received some advice from the city solicitor, and I should like to ask him about it. Statement of ex-Alderman Wm. F. Brooks. Mr. Brooks. — I don't know — I would say right here, that I had the honor to serve upon the Committee on Common three years, wiiile a member of the government, being associated with the present Chairman of the com- mittee — I hardly know what I can say in this matier that hasn't already been said. There have been so many points raised here, I don't know what I can add. I think it was in 1871 wlien the petition or request came to that commit- tee for the purpose of erecting temporary buildings on the Common, fronting Tremont street. At that time I tliink tlie city solicitor, — I am quite certain that he gave it as his opinion tliat the committee could not exercise that right to allow any temporary building to be placed upon the Common. While I re- spect and appreciate this Association as much as any gentleman can who has asked for this privilege, I certainly oppose it. I think there are other grounds in the City of Boston that they could occupy as well as this. Now, Mr. Chair- man, in order to erect and place this building upon the ground tliere must nec- essarily be a very large amount of teaming off and on the Comtuon; and the cutting of the ground up, all j'ou gentlemen well know, must be very severe on the Common. A great many heavy pieces of machinery are to be carted to and from this building, providing this permit is granted. There is another thing that the committee have done since I left it: they have cut off the play- ground from the boys. When it could not be granted for the boys, it should not be granted for this purpose at least. They have a prior right over this institution to the use of this Common, as it was set apart, in my judgment; and I hope you will not grant this permit; in other words, that you will give the petitioners leave to witlidraw. I can conceive that if we open the door, as has been said here, — if you do so, they will come and make the same request at the expiration of every three years, not only for tiiis purpose, but, we might say, for many others which have been enumerated here to-nigiit. A sugges- tion has been made that they ndght purchase the building now occupied by Mr. .Moody and Mr. Sankey. It has been proposed that that building might be purchased for this purpose, and perhaps they may want that building con- tinued a longer time than this institution might be able to wait. I hope their good work will find a use for this building, so that they will not want to let it for such a purpose. I certainly look upon this, in every sense of the word, as a request that should not, under any circumstances, be granted for the pur- pose for which it is asked. Statement of Prof. W. Everett. Prof. Everett. — I do not know whether, strictly speaking, I have anj'- right to appear in these premises, literal or moral, as I am not at present a citizen of Boston, although I was a Latin School boy, have been defeated as a candidate for the School Committee, served on a Suffolk Grand Jury, and paid taxes in this city for some years. But, as we were reminded by Mr. Jolm C. Ropes, that on one occasion his Honor the Mayor of Newburyport was allowed to come here and try to prove to the citizens of Boston that it was for the interests of commerce that Coluiubus avenue should be extended to Park-street church, perhaps, by parity of precedent, you will allow a citizen of Cambridge to enter a protest against a committee of the City Council's trying to take away from the neighbors of Boston one of the Appendix A. 27 greatest satisfactions in living in her neighborhood. We who live in the adjoin- ing towns, which have not had the privilege of being annexed to Boston, but, like myself, do enjoy the privilege of living in Cambridge and paying taxes three dollars more on a thousand than do the citizens of Boston, — we who are obliged to come into Boston, from time to time, on business, — we, sir, feel that we can go through the streets of Boston on business, from one end to another, and enjoy the comparison with the streets of other cities where we live, or have lived, and we appreciate the fact that right in the middle of Boston is this green, open space of forty-five acres, which relieves our vehicles and our feet, and makes our business easier and lighter. We experience a more solid satistiiction in transacting business in Boston than we do in any other city. We are glad to be near Boston, and we are glad of it on account of the Common. Its trees and its turf are actual physi- cal benefits, and we are better and stronger because of having this place to avail ourselves of. I was obliged to remain in Cambridge all last summer. I did not go to the Centennial ; and I feel myself rather an aristocrat on that account. I was obliged to come to Boston all through the hot weather, and do business ; and I felt that the heat in Boston was relieved by the fact that I was so near the Common, and that the bracing influence of the Common was helping me. It was said, in the course of the hearing, the other night, that those who live near the Common were most interested in this question. On the contrary, that is not the case, for those who live near the Common are mostly rich men, with a hundred places to which they can go for relief during the hot season. It is those who do not live near the Common that most feel its attractiveness. Those who live in other towns, where there is less free space than in Boston, come into Boston when the rich residents around the Common are gone, and enjoy the privileges that the Common gives them ; still more those who live in the less airy streets of the city proper ; and they feel that it is almost as good as living on Beacon or Boylston street, if they have this place to go to. But I am almost inclined to think that, independent of any opinion of their own, the assessors liave fancied that the residents near the Common have a fee simple in it, for they have taxed the residences on Beacon and Park streets fiir higher on that account, which shows that in their eyes the fact of being near the Common has a money value. If you are going to change the charac- ter of the Connnon, those houses in Beacon street will lose their value, their existing valuation will never stand, and the city will lose a large sum in taxes. When it was said that those who live near the Common think they own the fee simple in it, I think those words must have been put in to give a legal air to the sentence, because "fee simple " is a legal term ; and it sounds well in such a phrase. If the gentleman who said that is bound to use the terms of English law, he had better look back and see what Common means in the old law of real estate in England ; he had better see what rights the inhabitants had in a place that was Common land. He would see that in the most lawless time in English history, the lords of the manor were slow to deprive the people of their rights in a Common. For Common is as well-known a term as any, in English law ; as fee simjtle or ienant in tail after possibility of issue exti?ict. When somewhat of the old English independence had departed, the enclosure acts began to abridge the English people of their rights of Common, from year to year, and they have been often recognized as among the greatest acts of oppression which the aristocracy put upon the people. I do not want to consider, with reference to the erection of buildings in Paris, whether the Champ de Mars is precisely the same thing as Boston Common. I do not care to consider whether a place which occupies many hundred acres is the same as a place of forty-five acres ; whether a place bare of grass and trees upon the outskirts of Paris is the same as a planted park in the middle of Boston ; whether an open space on the edge of a city which has the Bois de Boulogne, the Bqis de Vincennes, the Park Monceaux, the Tuil- eries Gardens and the Champs Elysees, can be classed as the peer of Boston Common. It is enough to say that whatever has been done by the Imperial Government of Paris is no precedent for the City of Boston. If we are going to repeat Paris in Boston, remember it is as easy to build up a Commune in Boston as in Paris ; and if the rights of the poor men are to be encroached upon in Boston, the next thing you will be having barricades in the streets. 28 Appendix A Such hii^h-hanflod policy is a thins? alien to the sjenius of American institu- tions. The i)rincipal fear which I have now in the way "f tyranny is the tyranny of corporations, of which we have so many in this country, aiid which are fast takini? awfiy the people's rights. I nii follow, that when the building was constructed the natural result would be to go there for the next exhit)ition, because the plea would be all the stronger. Mr. Slack. — I accept your explanation entirely. I believe you are perfectly sincere. Statement of John D. Bryant. Mr. Brtant. — I came here with no intention to make a speecli ; but there was one thing I intended to say. What I heard last Saturday led me to bear in mind the suggestion made by the gentleman who has just taken his seat, and by the President of the Association, — that no place had i^een named, that no place could be named, where the Association could hold tlieir exhibition. I had three or four places in my mind then, and I have taken the pains to have some measurements made, liut I have not got them accurately. I pro- pose to mention two or three places at the risk of Avearying the committee. One is between Dartmouth street, Warren avenue, and Clarendon street, and I do not know the street on the other side. I do not know the exact dimensions. Another is between Columbus avenue, Berkeley street, and Cortes street, within a stone's throw of the Providence railroad depot, comprising about six acres. It was occupied last summer by Barnum's menagerie ; is very acces- sible by horse-cars and to the people at large. It is near Boston Common, and is under none of the restrictions that, I believe, are on many other lots. Another is the Coliseum ground, where there is verge enough for this most respectable and honorable Association to go and spread out to any extent; and the fact that one or two streets have been laid out across that ground since the jubilee was held there, should be no obstacle to an Association wliicli hesitates at notliing so far as its wishes are concerned. That land could be most easily controlled, I have no doubt. That lot is free from all objections, and all those benefits which the gentleman has reiterated to-day might flow into Boston from there without this objection, Mr. Cliairuian and gentlemen. It is cer- tainly to be hoped that the Association will not hesitate to bestow that pros- . perity upon Boston, if it can do so, by going so near the Common witliout encroaching upon the rights of the people. One gentleman who has spoken on behalf of the remonstrants at this hear- ing thinks the whole question seems not to have been touched by the peti- tioners in any way whatever. You can concede — I most cordially do, and I think everyone here does — all that is claimed in the panegyric that has constituted the chief stock of the petitioners. You need only look at the array of names of persons on the remonstrances to know that they come here with no malice; and if anybody has put anything in the papers, it is because the public good and the public interest is asjainst this petition. The real question is, have you aright to grant this permit ? If that has not been demonstrated here this afternoon, permit me to suggest a thought or two. At the general town meeting of the citizens of Boston, in 1040, it was voted that no ground- lease or occupancy of Boston Common should lie made without a majority vote of the inhabitants of the town. That vote stands re- affirmed. It was reaffirmed by vote of the inhabitants when the city charter was adopted, by which they say that the City Council shall not sell or lease any part of Boston Common. That vote, passed more than a century ago, prohibited any exercise of the power to dispose of the free use and occupancy of the ground of Boston Common ; and yet it is in the face of that vote — standing unrepealed — that you gentlemen are asked to go in violation of that whole thing, and permit the erection of a building here. I do not care bow virtuous are the purposes, that vote says you shall not do it; and when you bring in an array of argument and prejudice in favor of it, it should not need any argument on the other side to show you that you should not do it. It is not right; it does not need any argument. Appendix A. 45 Then, if you had the right, it would not be expedient to grant it. When you have strained every nerve, and have taxed the people for more park room, then you can give this Association all the scope they want in the new park. But do not compel the people to resort to the courts. I beg of you, as a committee of the City Government, not to put yourselves in this position. You cannot deny tliat the question of riglit is an open one, even if you are convinced that it is expedient. But do not put yourselves in a position where the citizens, in order to get their rights, have got to go to the courts or to the Legislature. Closing Argument for the Remonstrants, by R. D. Smith. Mr. Smith. — I hope I rise to close this hearing, and I shall do so with a very few words, I assure you. My getting up at all reminds me of the story of a certain lawyer, who asked, after arguing a case for five hours, " When will it be your lordship's pleasure to hear me again?" The judge replied, "It will be my duty to hear you to-morrow morning, but my pleasure long since ceased." 1 think the committee will admit that in the conduct of this hearing there have been no witnesses produced who have indulged in vituperation, and that no attempt has been made, by appealing to improper motives, to influence the gentlemen of the committee. I have that confidence in them to believe that they are sitting upon this matter in a judicial capacity ; and, if any impu- tations liave been cast upon them, it has been by members of the Association. I do not know or care anything about the newspapers, and I hope that you, as a judicial body, will try this case as a committee considering what the people of Boston consider one of their dearest rights. I had supposed — and that, perhaps, may explain the irregularity in which the case for the remonstrants was put in — that when anybody wished to establish a right before a court, it was his duty to come forward, and tliat it was not the duty of tlie party opposed to assign reasons in advance. There- fore, we had to go forward with much cumulative evidence by persons who freely expressed their minds in giving their testimony. That is the reason why we wearied you. It seems to me that it is an unpliilosophical way to conduct a hearing. And now, with regard to the case made by the petitioners. A wrong im- pression has gone out, I am sorry to say, in regard to this committee ; and that is, that they had decided this matter beforehand, and that it was a fore- gone conclusion tliat a report was to be made to the City Council in favor of this petition. I am told that the petitioners liaving appeared, and there being no remonstrants against it, the report was made ; but that the minds of the committee are still open to conviction. It has not been so considered in the minds of the community ; and, therefore, the great feeling that has been aroused in a large part of the community over the Common should be discredited. I think tliere has been a little favor given to that view by the petitioners here. They came down as King James did, claiming that he had a right to come down, and sit with the judges on the bench as they were going through the farce of hearing evidence. But, gentlemen, I have heard no evidence. They have had no evidence. There has been no reason assigned why they should have the Common. There is no one, among all the people in this hall to-day, — no person in Boston, — who does not actually feel that his welfare is bound up in the commercial prosperity of Boston. I do not know one person who could wish to have but the most kindly feelings toward this Association, — that is, as kindly as he can toward any great chartered institution. But it is a private corporation, and it is as a great corporation that it puts in this request to take a piece of land used for public purposes by the citizens whose interests you are to protect. The arguments I have heard were based upon the beneficence of this institu- tion ; the great fairs it has held, and the great interest in seeing a carpet-loom (which I should like to see) ; but there has not been one reason given why it should take this particular place. If it was necessary to have it, it was their duty to show that there is no other place. 46 Appendix A. I now instance one lot of 40,000 square feet — the Fort Hill lot — which, with three stories, gives 140,000 square feet. Tliey reminded me very niucli of something said by one of the old Whig papers while my friend, Frank Pierce, was in power. He vetoed a bill of Con- gress and sent in a message four columns in length. One of the papers in Boston said, Pierce lias vetoed such a bill in a message of four columns, for reasons assigned. And that is just the case here : They have not been able to assign a single reason ; and, realh', I believe that if this matter were submitted to the very body which they represent — an Association consisting, as it does, of so many sensible men — tiiey would not do what tliey come here and ask you to do. The people interested in the Coliseum voted at the time not to take the Common, and I think this Association itself would not make such a move. I know there are members of the Association here to-day who would not. I understand that the treasurer of the Association and another gentleman oppose this petition. We liave several witnesses here to show that the Association wish to hold no fair this year, to be a shadow of the great Centen- . nial, and who know how the people of Boston, and of all New England, have been depleted by visiting that exhibition. If Massachusetts was not able to attract the attention of foreign powers to the great exhibition in Philadelphia, she will not be able to attract them to one which must be the siiadow of that great exhibition. Now, gentlemen, I do not discuss the legality of this matter. I have too high a respect for Mr. Healy to believe that he says you can do it; and unless you feel morally certain that he has given such an opinion, I hope you will obtain his written opinion upon the subject, for lawyers often change their opinions after examining a question. I think that Mr. Healy will saj', after examining the opinions of Mason, Dexter and others, that there is a very grave question whether the City Council has this right. But that is not the only question. This building may be elegantly built of iron and u lass, which it will be a pleasure to visit; but I think you cannot help admitting that, located, as it will be, across the Common, this building will certainly be a great inconvenience to a large class of our citizens ; for it is not to be built like Aladdin's palace, in the night, or like Solomon's temple, without saw or hammer. It must cover the ground with refuse of timber and materials, and various other unpleasantnesses which accompany the erection of a large building. I am much obliged to you, gentlemen, and although I have endeavored to be brief, I know that I have wearied you. Letters submitted. Mr. Smith submitted the following : — February 17, 1877. J. J. French, Esq. : — My dear Sir, — I cannot be present this P. M. at the hearing on the appli- cation of the Mechanic Association for the use of the Common. If present, I should simply say, — I object, not as against the Mechanic Association; that body should have it, if any one, for a similar purpose ; but I object as establishing an embarassing precedent. If the city is prepared to let the Mechanic Association use the Common for its purposes, the same rule nmst hereafter be applied to applications frum musical festivals. Moody & Sankey visits, fairs, shows of animals, etc., etc. Boston, present and prospective, for purposes of health and pleasure, requires all the open spaces it now possesses, and while the present application, and those to follow of a kindred nature, may be considered temporary, the precedent will be used as an argu- ment hereafter for permanency. Cordially yours, ALPHEUS HARDY. The Chairman submitted the following : — Appendix A. 47 Boston, February 17, 1877. Hon. John T. Clark, Chairman Board of Aldermen, Boston : — ^jV^ — I regret that prior engagements will prevent me from attending the hearing tliis P. M. in support of the petition to grant the use of the Common to the Mechanic Association. The National Rubber Co.'s exhibit at the Centennial cost, for three cases, four thousand dollars, the goods six thousand dollars, and the same will be placed here, if the Association occupy the Com- mon. . None of the rubber companies have made exhibits at the former fairs, as they regarded the rooms wholly inadequate and unworthy, and the location decidedly objectionable ; but 1 am sure all will make very generous displays if the Association uses the Common. All the companies I represent believe the Common cannot serve Boston and New England better than as a location for the proposed exhibition. Very respectfully yours, CM. CLAPP. [This closed the hearing.] APPENDIX B. [Note. — It has seemed arlvis.able to repi-int the opinions of Jeremiah IMason and Franklin Dexter, as given in 1843, since the original pamphlet of nineteen pages, printed by John H. Eastbiirn, is now very scarce. The question discussed arose as follows : In 1794 the town voted to grant certain land and tlats west from Charles street for the purpose of placing a ropewalk thereon. Some thirty years later the city bought back the lands so conveyed. The City Council afterwards contended that this land had been severed from the Common, and was not included in the prohibition in the city charter against selling or leasing the Common. In considering this question, the counsel review the whole subject of the dedication of the Common.] Title. " Boston Common. Boston: John H. Eastburn, printer. 1843." On reverse of title is the following certificate : — "We have examined the records for the County of Suffolk, and are of opinion that the lands now proposed to be sold by the city, lying north of the depot of the Boston and Providence Railroad Corporation, were originally part of the Boston Common. " C. P. & B. R. CURTIS, "N. I. BOWDITCH. "Boston, November 6, 1843." CASE. The opinion of counsel is requested on the following case : Prior to 1 794 the lands in question were a part of the Common in the town of Boston. They consisted in part of upland and in part of flats appurtenant thereto. In the year 1800, or thereabout, Charles street was laid out through this land, and at some subsequent period (the precise date is not known, but before the year 1820) that part of the Common east of Charles street was enclosed by a fence, which ran along on the east side of Charles street. On the first day of Sep- tember, in the year 1794, the inhabitants of Boston passed the votes, of which the following is a copy : — "Voted to Isaac Davis and others, to hold to them and to their heirs and assignees forever, the first fifty feet of said piece of land, etc., upon the following conditions : — (1.) That neither the said grantees, nor their heirs or assignees, shall at any time hereafter erect, or cause to be erected, any ropewalk upon the land where the late ropewalks were consumed by fire, nor any part thereof. (2.) That there never be any other buildings than roj)ewalks erected upon the lands hereby granted, nor more than six of them. (3.) That the heads of the ropewalks to be erected thereon be placed at the southerly end of the said granted lands ; that they shall not be more than one story in height, nor the eaves more than seven feet from the floor, except- ing forty feet from the head of each walk, for a store, wliicli may be two stories high, they to be built with brick and covered with slates. (4.) That the grantees aforenamed erect, within the space of two years from the present time, at their own expense, a sufficient sea-wall, in the opinion of the Selectmen, for the time being, the whole length of the said granted 50 Appendix B. lands, on the •westerly side thereof, at a distance not exceeding thirty feet from the same, the riglit of property in which wall, if erected without the bounds of the grant, shall be in tlie town ; and nothing in the foregoing grants shall be considered as conveying to the said grantees any right of passage in any direction across the Couunon to or from the granted lands. Voted, That the Selectmen, in the name and behalf of the said town, be and hereby are authorized and requested to execute good and sufficient deeds to tho aforesaid grantees of the lots granted to them as aforesaid, upon the conditions and with the restrictions and reservations hereinbefore described, and that they insert in the deeds so to be executed a covenant on tlie part of the town, that tliey will not l)uild any ropewalk on tlie Common, nor ever hereafter grant any part tliereof for the purposes of building such walk. It was also voted that the said grantees are authorized and empowered to extend the limits of said land hereby granted, fifty feet over the flats, they relinquishing the same space on the easterly side of said land, or to alter the said limits so as to extend across the said marsh in a diagonal direction, pro- vided they do not in either case come nearer than fifty feet to the end of the rail fence aforesaid, nor run northerly so as to cross tlie said line to be run jiarallel with Beacon street, reserving, however, sixty feet in width across the southerly end of said piece of land, for a road from Pleasant street down to the channel. Boston Rec, Sept. 1, 1794, fol. 8, p. 43-1. On the 31st day of August, 1796, the Selectmen executed a deed, of which the follow- ing is an abstract, by which the town of Boston conveyed to William McNeil and Archibald McNeil, two of the grantees aforenamed, part of the granted lands, in pursuance of the above votes, and upon the same restrictions and conditions as Avere expressed in the deeds to all of the said grantees. By these deeds the Selectmen convey to the grantees aforesaid a certain tract of land at the bottom of the Common upon certain terms and con- ditions therein mentioned, but set forth more at large in the votes of the town, of which the above is a copy. These lands are conveyed to the said grantees, their heirs and assigns, to their and their assigns only use, benefit, and behoof forever. Provided always, and these presents are on the condi- tions, etc., following; that is to say, that the inhabitants reserve the liberty- and privilege, at any time hereafter, to carry sluice-ways or drains through the said land in any direction towards the salt water, and further, that the grantees, their heirs and assigns, shall not erect, or cause to be erected, any ropewalk upon the lands where their late ropewalk stood, or upon any part thereof; t'liat there never be any other building than one ropewalk erected on the granted land ; that the head of the ropewalk to be erected thereon be placed at the southerly end of the said granted lands ; that the same shall not be more than one story in height, nor the eaves more than seven feet from the floor, excepting forty feet from the head of each walk, for a store, which may be two stories in height if built with brick and covered with slates; that tlie said grantees, at their own expense, within two years from the said first of Sep- tember, build a sufficient sea-wall, in the opinion of the Selectmen for the time being, tlie whole length of the said granted lands on the westerly side thereof, agreeable to the true intent and meaning of the town votes passed as aforesaid, as will appear by reference thereto. Provided also, that nothing in these deeds shall be construed to convey any right to passage in any direction . to or from the granted lands across the Common ; and the said inluibitants, by their Selectmen, do covenant and agree with the said grantees, their heirs and assigns, that they will not build, or cause to be built, any ropewalk on the Common, nor make any grant of any part thereof for the purpose of biiildiug such walk, other than such as is granted in the votes referred to. Executed on the 31st day of August, 179G. This was the state of the title at the time when the city charter was granted. The land was then occupied by six ropewalks, under these grants from the town. After the city ciiarter was granted, the city purchased the titles of William Gray and others, the proprietors of the ropewalks, and tlie same were conveyed to the city. The question is whether the Mayor, Aldermen and Common Council have the power, under the city charter, to sell and convey the laud in question. Appendix B. 51 OPINION. The first point of inquiry in this case, in the view I have taken of it, is as to the right and title of tlie City of Boston to the Common. The case states that the land now proposed to be sold was, until the year 1794, a p;irt of tlie Com- mon. In that year the town [)assed certain votes, by virtue of which the land in question, or a part of it, was afterwards sold. The city succeeded to all the rights of the town, and has, since its incorporation, repurchased this land. It is necessary, therefore, to ascertain what right the town of Boston had in the Common at the time of the sale in 1794. It is matter of notoriety tiiat from ancient time, — commencing near the first settlement of the town, — the Common has always been kept as a public square or park, and freely used by the public for militarj^ trainings and as a place of general resort for exercise, and the circulation of pure and wholesome air. During this long period the Common has never been a^jplied to any use inconsistent with the public use. Such use and occupation by the public from time immemorial is evidence of the dedication of the land by tlie owners, who- ever they were, to the public, for the uses and purposes to which it has been applied. That land may be so dedicated to the public by parol, without any deed or written conveyance, is a well-settled doctrine of the common law. On this principle rests the right of the public to many of the public squares and streets in Boston. The case is the same in most other cities and large towns throughout the country. The right of the public to the use of property thus acquired by dedication is no more revocable by the former owner than it would be if secured by the most formal and solemn conveyance. A corporation is as competent to make the dedication as a private person. Whether the dedication in this case was made by Blackstone, who is said to have been, anciently, the owner of the whole peninsula of Boston, or by the town, after it acquired a title, is of no importance. The use and occupation for so long a period is conclusive evi- dence of a valid dedication, and the making it by the town gives no pretence of a right to annul or revoke it. The dedication was for the public at large, and it cannot be annulled or revoked, except by the assent of the supreme power of the State. The fee may still remain in the city, subject to the public use, and the city may have the superintendence of the land, and apply it to any purpose not inconsistent with the public use. There is no necessity for trustees for the protection of the public use. All encroachments by the erec- tion of buildings, fences, or otherwise interfering with or injurious to this use, are considered and treated as nuisances, and may be removed liy judicial pro- ceedings, if instituted in due season. Our Revised Statutes, chaji. 24:, sec. Gl, relating to public nuisances and their removal by public prosecution, provides against nuisances on highways, training fields, burying-places, landing-places, or other land appropriated for the general use or convenience of the inliabi- tants of the Commonwealth, or of any county, town or parish. This last clause would clearly include the Common. The validity of the dedication of i)roperty to public uses has been recog- nized by the Supreme Judicial Court of this State. 2 Pick., 44, Common- wealth vs. Tucker; 12 Pick., 405, Hobbs vs. Lowell. Indeed, I do not know that the validity of the dedicatioii to public uses, of property like that under consideration, has ever been doubted. Doubts have been suggested against it when applied to highways, but solely on the ground that highways in this State were supposed to be exclusively reg- ulated by the provisions of our statutes. But these doubts were in the last- mentioned case examined and overruled. In several very important cases in tlie Supreme Court of the United States this subject has been largely and very ably discussed ; and the validity of the dedica ion by parol of property like that under consideration, to public uses, has been affirmed by the unanimous opinion of the court. I refer to the cases of the City of Cincinnati vs. Wliite, Barclay vs. Howell, in 6 of Peters Re- ports, and New Orleans vs. United States, in 10 of Peters. In the last case the doctrine is laid down in the most emphatic terms. 52 Appendix B. It is understood that encroachments have heretofore been made on certain parts of tlic Common, under sales made by tlie town, and the erection of buildings thereon. It is held by the Supreme Court of the United States, in the last-named case, that such encroachments furnish no evidence, and raise no iiresum])tion against the validity of the dedication. I am aware that a popular opinicm has prevailed that the town formerly had power to si'Il the whole Common for any purpose whatever, and that the City Council at the present time would have had the like power were it not for the restraint imposed on them by the charter. But I am not aware that such opinion has ever been sanctioned by any judicial decision, or sustained by the oiDinion of any counsel on due consideration. Eesting on the ancient principles of the common law recognized by the Supreme Courts of the United States, and of this State, we may safely con- clude that the town, in the year 1794, when it made the grants mentioned in the statement, had no lawful power to sell any part of the Conuuon, to be ap- plied to any purpose or use inconsistent with the public use to M'h;ch it had been dedicated. The inquiry still remains whether the City Council can rightfully sell the lands in question by virtue of tlie authority given them by the charter. The City Charter provides that "the City Council shall have the care and superintendence of the public buildings, and the care, custody and manage- ment of all the property of the city, with power to lease or sell the same, except the Common and I'aneuil Hall." The case states that the lands in question, now proposed to be sold by the City Council, were originally, before the year 1794-, a part of the Common. In that year, which was before the granting of the charter, the town of Boston granted, in fee simple, subject to certain conditions, to wit, that no buildings should bo ever erected thereon, except ropewalks of seven feet in height, from the floor to the eaves, with heads at the southeast end of two stories for the space of forty feet, and certain other conditions, unimportant to the present inquiry. Ropewalks were erected, in conformity with the con- ditions of the grant. After the incorporation of the city, which was done in 1821, the city pur- chased from the proprietors of the ropewalks the land as aforesaid granted by the town, and took a conveyance thereof, and the ropewalks were taken down. It is understood that the City Council contend that by reason of this grant and repurchase, the land in question does not come within the exception in the charter, because this land liefore the granting of the charter had been sold and conveyed away to jjrivate individuals, and was in their actiuil occupation, and was thereliy severed from the Common, and therefore not in the exceptiim. That the land in question originally constituted a part of the Common is a fact stated in the case. It must therefore be deemed to be within the excep- tion in the charter, unless, by means of the grant and repurchase, it has ceased to be a part of the Common. The exception includes the whole Common. To the City Council was given the full and entire power of the city cori^oration, of selling all its property except the Conunon and Faneuil Hall. As the city cannot sell anything in any other way or manner than by the agency of the City Council, this exception amounts to an inhibition of a sale of the Common and Faneuil Hall, which the city was supposed to hold in trust for public uses. In deciding what is the effect of the grant of 1794, it must be recollected that the town in that time had no rightfvd power to grant the land in question for any purpose or use inconsistent M'ith the public use to which it has been dedicated. So far as that grant was inconsistent with the public use it was void. And it is believed that no grant inconsistent with the public use was intended. This grant, althotigh purporting to give an estate in fee simple, was not absolute and unconditional, but on condition that the granted premises should be used for one purpose only, to wit, for the erection tliereon of six ropewalks of a prescribed height, and that no buildings whatsoever should ever be erected on the same. The intention of the grantors in introducing this condition into the grant is oln-ious. It was to restrict the grantees to a tise of the land which was sui)i)()sed not to be inconsistent or incompatible with the use to which the public were entitled. The erection of such low builings, not greatly ob- Appendix B. 53 structin,!? the prospect or the free circulation of air, it was supposed wouhl not materially atfect or injure the public use. It was not intended to release the land from the public use, but to keep it in sul)serviency to such use. No other reason is perceived why the grant was made on this condition. The question is not, whether the grant, with this condition restraining tlie grantees to this special use, was perfectly consistent with the public use ; but what was the intention of the parties. "The town, having the general superintendence of the Common, might appropriate any part, for a longer or shorter time, to any use or purpose deemed not to 1)e inconsistent with the public use, without thereby severing such part from the Common, or discharging from the puldic use. The grant of the land in question, by the town, for tlie special purpose desig- nated, instead of operating as a severance of it from the Common, tends to show an intention that it should remain a part of the Common subject to the public use. By the repurchase from the proprietors of thq ropewalks the city acquired no new title nor any other title than what the town had at the time of the grant. It merely restored the land to its former condition, discharged from the special use for which it iiad been granted. The effect of the repurchase is no greater or other than would have been a forfeiture by breach of condition by the grantees and an entry therefor by the citv. That would have restored to the city the former right and title of the town, and nothing more, placing all things in the same condition they were in before the grant to the ropewalk proprietors. The repurchase has the same eifect. The city can now show no better or other title than what the town had when the grant was made. The only title of the town then, and of the city at the time of its incorporation, and at the present time, is that it was part and parcel of tlie Common. But should it be held that the land in question Avas not a part of the Com- mon at the time of the incorporation of the city, by reason of the grant to the ropewalk proprietors, I am still inclined to the opinion that it became a part of the Common by the repurchase within the true meaning of the exception in the cliarter. This exception was introduced to restrain the City Council from selling the Common or any part of it. The restraint was intended to extend to whate.ver should, at any time, constitute the Connnon. A piece of land at the southeast corner of the Connnon, not originally lielonging to it, was, many years ago, purchased and added to it. This doubtless now constitutes a part of the Common, and comes within the exception of the charter. The case would be the same with any other piece of land liereafter acquired by the city, by pur- chase or otherwise, as and for an addition to the Common. I am therefore of opinion that the City Council has no lawful authority to sell the lands in question for any use inconsistent with the public use, to which they were originally dedicated. J. MASON. Boston, October 31, 18i3. OPINION. The case states the lands in question to have been part of Boston Connnon prior to 179-1. The city cliarter authorizes the City Council to sell any of the public lands except the Common (and Faneuil Hall). If the town had before the power of selling the Common the acceptance of the charter would seem to be relinquished of tliat power, as no legal mode remains of making any con- veyance of it. But it is not disputed tliat the operation of tlie charter is such as "to prevent the sale of "the Common," and that if these lands are now a part of the Common the Council have no power to sell tliem ; at least I have not heard that point questioned. The question proposed, therefore, results in this : Have these lands been etFectually severed so as no longer to form a part of the Common, by the grant of 179-t, and the other circumstances stated in the case, and, if so, has the repurchase of them by the city made them again a part of the Common? It cannot be doul)ted that the town of Boston owned all the ungranted land within its limits. The deeds from Blackstone and the Indian deed of 168i-5, 54 Appendix B. ami the act of the Colonial Legislature of 1C70, aiitliorizing tlie towns by their freemen, or a majority of them, to grant tlie "town's own hinds," have, in all cases in which it has become necessary to trace the tith's of lands iu ISoston to their origin, l)een admitted as sufficient jiroof of title in the town. It is e(inally clear tliat from a very early period of the settlement, the land known as the Common was dedicated to pulilic use. Upon this point there can be no disi)ute ; a clearer case of dedication cannot be stated. The title by dedication, or, rather, the public right of use by mere dedica- tion, is recognized by tlie common law, by the courts of the United States and the courts of tliis Commonwealth (see 2 Peters, 2:31 ; Cincinnati rs White; and 1!) Pick., 405, Hobbs rs. Lowell, and the cases tliere cited). According to the doctrines of these cases, tlie grant to the public by dedication, when once made, is perpetual and irrevocaVile, and binds the land into whose ever liands the legal estate may come. It needs no deed for its origin, no grantee to receive it, and no lapse of time to support it. The will of the owner, once clearly expressed and carried into effect, vests a perpetual right in the pul)lic — not to the fee of the land, for that may still reside in the dedicator, and may, perhaps, be transmitted liy inheritance or assigned by deed : but the right to use it for the purpose of the dedication remains in the pulilic. Nor does it make any difierence in this case that the town of Boston, in its corporate capacity, owned the fee of the land. The public, to whom the dedication was made, was not the corporate body of the town acting by its majority, but it was each and all of the inhabitants. It Avas a dedication by the majority for the use of the whole, and cannot be revoked or impaired by any corporate act or vote of the majority or of the representative body (the City Council), who have by the city charter succeeded to the powers of that majority. The town, in this respect, holds the same relation to the public as any other proprietor of land would, who had made such a dedication. It is olnious that individuals acquire vested rights in such a dedication ; they purchase and build in the neighborhood upon the faith of it ; and the use is not a corporate, but an individual use, in which every citizen has a part and a right. If this be so, it is quite unnecessary to inquire into the character of the grant to Davis and others, in 1794, because the town had no right or power at that time to make any grant of those lands inconsistent with the public use to Avhicli they had been dedicated. The grant was void so far as its terms were inconsistent with that use ; and the mere conveyance of the fee, if the town had power to make it, would not deprive the public of their right. The holder of the legal estate, be he who he may, is, after such a dedication, a mere trustee for the public, to the extent and for the puriioses of the dedi- cation. It is true, that if these lands had been unconditionally conveyed by the town to Davis and others, and they had built upon them, or otherwise occupied them in a manner inconsistent with the public use, long acquiescence by the public in that occupation would be held to be an al)andonment of the dedica- tion to that extent, and the titles of the grantees would become indefeasible. It is said that a considerable part of what Avas once the Common is, iu fact, so occupied. No such right, however, could have accrued to Davis and others, by lapse of time, beyond the qualified use granted to them ; and whatever rights they might have acquired by time, were extinguished when the city repurchased the land. It is not immaterial, however, to remark that the grant to Davis and others was made for public purposes, for the maintenance of the ropewalks necessary for the trade of the town, and to prevent their erection in other places, where they would expose other buildings to the danger of fires such as had then recently occurred in Pearl street, and that the town received no pecuniary consideration for the grant. The grant was also encumbered with conditions as to the mode of enjoyment, which clearly showed that the toAvn understood the land to be still appropriated to public uses. I consider, therefore, the grant to Davis and others to have ])een, in effect, a mere license to erect rope- walks on the public lands, for public purposes ; and, so long as the inhabitants were not disturbed by them in the enjoyment of any valuable privilege in the lands, the grants might probably have been sustained upon grounds of public policy. Appendix B. 55 But be this as it may, I consider it very clear that when the city repurcha'^ed these lands from Gray and others, thev took tliem back clotlied with the entire crio-inal trust m favor of the puljlic. I df) not mean that ])y this repurchase the lands again become a part of the Common (by a sort of jus posilimimi) ; but tjiat, never havmg ceased to be so, the city derived no new power of disposi- tion irom the fact of repurchase. The removal of the ropcwalks, however to lowmg that repurchase, and the reclaiming of the marsh by the process of tilhng up, have rendered this part of the Common available for all tliose public uses winch were the original olyects of the dedication, and might now prevent tlie city from cncuml)cring it, even for public purposes similar to those for whicli the grant to Davis and others was formerly made. It will be observed that I do not found my denial of the right of the City Council to sell these lands upon the prohibition contained, by implication in the city charter, but upon the prior dedication to public uses, which it would require all the powers of the Legislature to revoke. I consider the words in the charter to be in etfect, as they are in form, mere words of exception in- serted that It nnght not l)e supposed that, by any general grant of authority to the City Council to sell the lands of the town, the Legislature intended to em- power them to sell those dedication lands, which the^ inhabitants of the town could not themselves have sold. I do not particularly notice several circumstances in the case, as to tending- to show the comparatively recent construction put by the town authority upon tlie meaning and extent of the word "Common," as I do not think they can attect a dedication so long prior. It is my opinion, therefore, that, notwithstanding the grant to Davis and others, and the repurchase by the citv, and the other tacts stated in the case the lands in question still remain dedicated to the public use as common land' and cannot lawfully be sold by the City Council. >T ^ o, ,0,0 FRANIdN DEXTER. November 2d, 18^3. 56 Appendix B. THE CITY SOLICITOR'S OPINION, 1813. The opinion of the City Solicitor, John Pickering, was called for by the City Council in 18-i3, and is printed as City Document No. 23^ of that year. The following extracts add something to the history of this subject : — He was asked " Avhether the City Council have any power under the City Charter to sell any part of the Public Lands West of Boylston street and South of the continuation of Boylston street? " He refers to his previous opinion about part of the lands, and makes the , following statements and argument : — " The portion of the Common Lands thus appropriated for a Training Field, etc., has ever been understood in a general view, to include what is now called, in popular language, the Common ; and it may be presumed to have been Land of such a quality as was suitable for the purpose of a ' Training Field ' and 'the feeding of cattle.' The extent of this Training Field or Common has, however, varied at different periods, and the changes cannot now be ascer- tained with precision." "In the early periods of its history a document of some importance is a Lease given by the Town to Governor Leverett, dated February 26th, 1665, by which they leased to him a piece of Land in this part of the Town, which is thus described in the lease : — " ' A parcel of land lying and being in Boston aforesaid, called or known by the name of Fox Hill, with all the Marsh about the same so far as the salt water flowes, bounded with tlie highway South, witli the Town's Commons East and North, and with the Beach and Sea West.' "The situation of 'Fox Hill, with the Marsh about it,' is satisfactorily known,* it being westerly of the present Common, and with the marsh, extend- ing in a soutlierly direction as for as the public lands now extend on Pleasant street, and probaldy, at the period of this ancient lease, reaching still further South. A part of the ' Marsh ' lay westerly of Fox Hill, and a part easterly of it, or between that hill and tlie upland or ' Common ; ' and this last-mentioned part of the Marsh (or a portion of it) afterwards fell within the ropewalk grant, in which it is described as Marsh land. " At the time of this Lease, then, the Common seems to have been limited on the AVest side by a boundary line, not perfectly defined, but in the general direction of the border of the upland, which could not have been far from the main course of Charles street, or the bottom of the Common." " So far as the votes and acts of the Town and City may be of weight in determining tlie extent and meaning of the word ' Common,' it may be re- marked, generally, that it has been in most cases considered to include only the land enclosed by the fence, though there are some entries in the records in which a greater extent eastward is given to it." " It has been suggested that the Land in question may be considered as part of the Common, on the ground of their being flats, and as such appurtenant to tlie upland called the Common, in conformity with the principle of the ancient Colony Ordinance respecting rights in flats. "The question now presented, however, does not, in my opinion, bring the case within the jirinciple of that ordinance. The flats undoubtedly were the property of the City, and were appurtenant to their upland; but they were not the property of the City as being appurtenant to the Common as such. The term ' Common ' was the name of a piece of land appropriated to a specific public use : as, at one time for a pasture, at another for a training field, at another for a public walk, etc. ; and a Common by that description *This statement about Fox Hill has ouly the authority of Mr. Pickering, and is not undisputed. — W. U. VC. Appendix B. 57 would not be presumed in law to draw after it, as an incident, the adjacent flats, particularly if those flats were of such a nature as not to admit of their being used and enjoyed for the purposes of a pasture, a training-field, a public walk, etc., to which the Common itself was appropriated. " The views here submitted, if well founded, supersede the necessity of considering some technical questions in relation to the eff"ect of the sale and repurchase of the ropewalk lands.* And on the subject generally, I beg to be understood, that although some of the above remarks may be considered to have a bearing on the subject of the lands immediately west of tlie Com- mon, yet my opinion is inicnded to he confined to the legal question distinctly submitted by the Common Council, which by its terms is limited to the lands ' west of Pleasant street and south of the continuation of Boylston street;' and in respect to these lands, my opinion is, that the City has a legal right to sell them, subject to the qualification arising from the use of the way over the southerly end, between Pleasant street and the sea-wall, which was considered in my former opinion, " I am, sir, " Your obedient servant, "JOHN PICKERING, ^^City Solicitor." Addressed Sept. 27, 1843, EDWARD BLAKE, Esq., President of the Common Coimcil. [Note. — The following extracts are from the previous opinion of Mr. Pickering, dated Sept. 8, 1843 (City Doc. No. 23) : — The main point discussed was that the ropewalk grant was to begin 500 feet from Beacon street, and run soiitherly "as far as the Town's land extends on the west side of Pleasant street." " Tliis description," he says, " carries the City's land along Pleasant street, and across the open space west of the Arsenal land, as far southerly as the boundary-line of the land known as the estate of Vose (formerly of Noah Porter), which boundary-line is believed to be ascertained." It was urged that the following clause was really of effect to lay out a street : "Reserving, however, sixty feet in width across the southerly end of said piece of land for a road from Pleasant street to the channel." Concerning this he says, "It appears that the tide-waters frequently flowed up as high as the line of Charles street, so as at high water to cover the lands on which the ropewalks were placed." "The sea-wall was built all along the western line of the ropewalk grant, and was carried southerly quite across the supposed way to the land of Vose before mentioned ; and it appears that the tide-waters flowed up from four to six feet in depth against the outside of this wall, as well against that part which crossed the way, as in other places." He concludes that the City might sell all the land, except, possibh'-, that part which has been used as a way from Pleasant street towards the sea-wall.] *Mr. Pickering liad previously repeated iiis opinion th.at tlie i-opewalk lands " did not constitute a part of the Common, within the purview of the Charter at tlie tuiie it was granted." APPENDIX C* The origin of Boston Common is unfortunately not a matter of record. If it were laid out before A.D. 1634, no record would be found, as the earliest v^olume of the town records begins on Sep- tember 1st of that 3-ear. But we may well follow the opinion of SiiAw, in his Histor}' of Boston, that no formal dedication of the Common was made earlier than 1634, and that its use and boun- daries were defined about 1640. Originally the territory of Boston was granted undoubtedl}' to the then inhabitants, with the understanding that new settlers would receive a proper share of the land. This was the custom, as John- son states, in regard to Woburn and all other towns. Of the incor- poration of Boston we only know that on the 7th September, 1630, at the second meeting of the Court of Assistants (the first having been on the 23d of August preceding), it was ordered "that the town of Mattapan be called Dorchester; that upon Charles river, Watertown ; and that Trimountain be called Boston." We know that appointments of land were made at once ; in fact without some such arrangement the streets could not have been established nor houses built. Yet the Book of Possessions, in which most of the grants are recorded, was not compiled much earlier than 1646, and it contains proof of earlier grants. In 1636 town orders were passed in regard to fences around the town fields, viz. : those on the Neck, the Fort field, the Mill field, the new field, and W. Colburn's field. The last-named field was practically the Common, says Shaw (p. 61), but erroneousl}'. The distinguished conveyancer, N. I. Bovvditch, in his writings upon our early history, inclines rather to tlie belief that Colburn's field was south of Boj'lston street, and that our Common was the lot of land which was assigned to William Blackstone, the original settler here, who preceded the Winthrop Colony. It seems by a deposition recorded in Suffolk Deeds, xxiv. 406, printed in Shaw, p. 50, in Shurtleff's Description of Boston, p. 296, and elsewhere, that in 1684 the depositions were taken of four of the earliest settlers in Boston then living. They testified that, in or about 1634, the town bought of AVilliam Blackstone all his right and interest in any lands within the neck of land called Bos- ton, excepting about six acres around his dwelling-house. "After which purchase the town laid out a place for a training-field, which ever since, and now" {i. e. 1684), "is used for that purpose and the feeding of cattell." * For this compilatioa the Chairman of this Committee is alone responsible. Appendix C. '59 The following vote was passed hy the colonial authorities at a court held April 1, 1633, (Colony Records, i. UO) : "It is agreed that Mr. William Blackstone shall have 50 acres of ground set out for him near to his house in Boston, to enjo^- for ever." Now, Mr. Bowditch proved clearl}' that Blackstone's house-lot passed to Richard Pepys ; thence, in'l655, to NathanienVilliams ; thence to Thomas Banister, in 1709 ; afterwards to John Singleton Copley ; and thence is to be traced to the present holders. In the deed of 1709 it is described as being on the "lower or north- westerly side of Common or Training Field," and bounded south- erly thereon. That is to say, it was the corner lot of Beacon and Charles street, extending north and west. In connection with the deposition of 1684, before cited, there can be no reasonable doubt that Mr. Blackstone's fifty acres near his house lay to the eastward and not to the west. The town bought the lot and laid it out as a common and training-field ; but its boundaries and extent were undoubtedly rather loosely defined. It was a big lot, almost a farm, comparatively remote from the streets and house-lots already laid out, which Avere on the line of our present Washington street, and at the North End. On March 30, 1039-40, the selectmen passed the following order : " Ordered, that henceforth there shall be no land granted either for house-lot or garden to any person, out of the open ground or common field which is left between the Centry Hill and Mr. Colburn's end, except 3 or 4 lots to make up the street from Bro. Robt. Walker's to the Round Marsh." Centry Hill is Beacon Hill ; William Colburn's " end, " at least his house-lot, was the northerly corner of our Washington and Boylston streets ; though his field was probably further south, beyond the Eliot lots. Robert Walker's house was on the north side of Boylston street, and his garden was on the other side. The Round Marsh was the one partly encircling old Fox Hill, and so out westerl^^ beyond Charles street. This first establishment of the Common was in some measure different from the present bounds. The town had already granted the land on_the north side of Boylston street, which, about A.D. 1734, was owned by Col. Thomas Fitch, embracing the grave-yard lot, and so out easterly to Tremont street. Undoubtedly, also, a corner along the shore was part of the then Common, being the part southwest of the corner of Boylston and Charles streets. On our Tremont street also there was included the land sold in 1811 for Colonnade Row, reaching to the line of Mason street. The line of Beacon street was established quite early. Park street, in the form of a lane at least, must date back to about 1686, when the Almshouse was built at the upper end, near Beacon street. As to the uses of the Common, Josselyn (Two Voyages to New England), writing under date of 1663, says of Boston : " On the South there is a small but pleasant Common, where the Gallants, a little before sunset, walk with their Marmalct-Madams as we do iuMoorfields, &c., till the nine-a-clock bell rings them home to their respective habitations, w^hen presentl}^ the Constables 60* Appendix C. ■walk their rounds to see good orders kept, and to take up loose people." John DnxTON, of London, who was here in 1686 (see his Let- ters from New England), copies this description. He also tells abont his attending a training in Boston, it being the custom, he adds, for all that can bear arms to go ont on a Training Da}-. He states that, "being come into the field, the Captain called us all into one close order, in order to go topra3'er, and then pra,yed him- self; and when our exercise was done, the Captain likewise con- cluded with prayer." " Solemn prayer in the field upon a day of training, I never knew but in New England, where it seems it is a common custom." In 1750 Capt. Francis Goelet visited Boston (see journal printed in N. E. Hist, and Genealogical Register, xxiv. 55). Under date of October 10, he writes, went "to the Commons to see the militia drawn up." Again, the next day he went " to the Commons to see the training, which consisted of twelve companies foot, and three companies horse." This matter of a training-field must have been of the greatest importance from the earliest time. For the first centur}^ of the existence of the settlement, militar}- affairs were the matters of dail}- concern. The historj' of New England, during that period, is in the highest degree warlike. All citizens were not onh' liable to be soldiers, but a large proportion of them actually' served. As early as 1674 there were in Boston eight companies, of one hundred men each. Here also was the head-quarters of the Ancient and Honorable Artillery Company-, then largely' composed of otticers of companies out of Boston. Thus, in their charter of March 17, 1638-9 (Col. Record, i. 250-1) , it is stated, " The first Monday in every month is api)oiuted for their meeting and exercise ; and to the end that they may not be hindered from coming together, we do order that no other train- ing in the particular towns, nor other ordinary town meetings, shall be appointed on that day This not to extend to Salem or the towns beyond, nor to Hingham, Wej-mouth, Dedham, nor Concord." The order of course included Roxbnry, Cam- bridge, Charlestown, Medford, Watertown, and Lynn, and we find that there were, at an early date, members of the conipan}- from all these towns. The Training-Field, or Common, was thus dedicated not only to the militia of Boston, but also to the use of the otticers, at least, of many of the neighboring towns. "Jn 1657, the companj' authorized their commander for the time being to permit other companies to assemble and perform duty in conjunction with tlie Artillery Company." (Whitman, Hist.' A. & H. A. Co., p. 447.)* The evidence of the constant and continuous use of the whole Common as a Training-Field is be^'ond question. In 1673 John Turner sells Samuel Shrimpton (SuflE". Deeds, 8, f. 329) "land on the waj' leading up from the Training-Field to Centry Hill." * This exclusive right, says Whitman, was exercised as late as 1808, when Col. Holmes cooipolled the Winslow Blues to suspend a drill. Appendix C. 61 One or two citations from Bowditch's notes mn,}' be allowed. In 1709, in the deed of Williams to Banister, already cited, the bounds sontherly are on the Common or Training-Field. In 1714 Thomas Banister sells to Giles Dyer (Deeds, 28, f. 242) lands " bounding easterl}' on the Common or Training-Field." In 1733 Samuel Banister sells Nathaniel Cunningham (Deeds, 48, f. 53) land " at the lower or northwesterly side of the Common or Training-Field." In 179G John Singleton Copley sold to Jonathan INIason and Harrison Gray Otis (Deeds, 182, f. 181) lands bounded " southerly by a line abutting on the Common or Training-Field." The foregoing extracts relate mainly to estates on the Beacon- street side. The same evidence is obtainable from the deeds of lands on the east and south sides. All the references to the estates on the lanes running from our Washington street, viz., Sheaffe's lane, now Aver}- street ; Hog alley, near the Adams House, now closed ; West street and Frog lane, now Boylston street, describe these lanes as running to the " Common or Training-Field." Notably this is the case in 1757, when the burying-ground lot was bought of Andrew Oliver, and in 1787, when the adjacent lot was bought of William Foster. Lastl}', whatever doubts ma}- have been felt as to the exact bound- aries of the Common, these were practically settled by the laying out of Charles street, about 1804, and the erection of fences around it. As there had been a sea-wall built before on the line of Charles street, the present parade-ground became firm land, and thenceforward was for all purposes part of the Common. The part west of Charles street was undoubtedl}- marsh-land and beach. By concurrence of all authorities, we conclude that on this part was situated the old Fox Hill. Windmill Hill, afterwards occasionall}- called Fox Hill, is apparently- our Flagstaff Hill, southwest of the Frog Pond. In 1723 (see Drake, 569), no per- son was to pla}- at " throwing long bullets" on the Common, nor to dig sand, earth, or stones at Fox Hill or the Ridge near thereto, between that and Windmill Hill in the Common. Shurtleff, who has studied the question well, says (p. 346-7) that "Fox Hill was not far from the place in the Public Garden as- signed for a tower, and which projects into the pond " there. "This hill was not very large, being about twenty feet in height and fifty feet in diameter, and was almost surrounded b}^ water." " Con- nected with Fox Hill was an extensive marsh, . . . which covered the space now occupied b}- Charles street and the Public Garden, and extended south somewhat beyond the station-house of tlie Boston and Providence Railroad." "Old persons have a remembrance of it, precipitous and gravelly." "Ridge Hill extended in a westerly direction from the present Smokers' Circle to the shore of the Back Bay, and terminated in an abrupt bluff from ten to twelve feet high. Upon a portion of its crest is Ridge Park, leading from West-street gate to the southerly corner of Charles street." In the map of Boston by Lieut. Page, of the Engineers, dated in 1775, we see Fox Hill (called also the Island), the marsh and a 62 Appendix C. hill, evidently our Flag-staff Hill. Bat, lie adds a hill westerly of the latter, with a fortilication thereon. This maj' not have been ver}- high, and may be repiesented by the higher ground towards Beacon street, at the west end of the parad>ground. He does not show Ridge Hill, but places a fortification at the west corner of the bur^-ing-ground, probably on that bluff. Comparing this with the plan of Henry Felhani, of the same date, we find on both. Pleasant street laid down, curving into Orange, now Washington, street. On each there are batteries, west of Pleasant street, on the water- side. One main difference is, that while both give our present Tremont street, as far as Common street. Lane calls this Clough street, and draws Hollis street as extending west to the water. Pelliam gives no names ; and of course neither represent our present Eliot, Car- ver and Warren streets.* From Cit}' Document No. IS, of A.D. 1850, we obtain a very good account of the disposal of the marsh lands, now the Public Garden. August 12, 179-1, in a town-meeting the question was considered of allowing the owners of the ropewalks destroyed by a fire on Pearl street, to rebuild on the marsh. In September the report of a committee was accepted, granting these rope-makers the marsh and flats, including the whole or such part of Fox Hill as fell within the bounds. Tliis grant, which was made in consideration of not building on Pearl street, was for a strip of land 300 feet wide and in length, extending from a line drawn parallel with Beacon street, and 500 feet from that street. The upper or eastern line was to run from the westerly- end of Ridge Hill (being 500 feet from Beacon street), "directl}' towards Eliot street as far as the town's land extends on the west side of Pleasant street," leaving a " space of fifty feet between this line and the end of the rail fence projecting down from the burying-ground on the south side of the Common." The grantees might \i\vy the lines by relinquishing lift}' feet on the east line and taking fifty feet instead on the west side ; or they might extend across the marsh diagonally, provided they did not come nearer than fifty feet to the end of the burying-ground fence, nor cross the line parallel with, and 5C0 feet from. Beacon street. The town reserved " sixty feet in width across the souther!}' end of said piece of land for a road from Pleasant street down to the channel." The selectmen " were also authorized to lay out a road sixty feet wide from Pleasant street along the easterly side of these lands over the marsh towards Beacon street, in order to meet a road that might be opened from West Boston Bridge. *I desire to call attention to A. Bowen's map, published in Snow's History and afterwards in Drake's History. It purports to be a " Plan of Boston in 1722," but it is very incorrect. It is not a copy of Bonner's map of that date; it contains many names of streets and wharves of a far later date, and is not to be cited as an autiionty. Th(J other niap by Bowen, in Snow's History, under date of 1821, gives a much more proba- ble water-line. Arpendix C. 63 Thus Charles street was established, and Boylston-street con- tinuation was projected.* The ropewalk lots were six in number, each lift}' feet wide, and when bought back in 1824 the first three lots measured 1,006 feet on Charles street, 1,138 feet on the west side. Lots 4, 5, and 6 measured 1,138 feet each.-j- In 180G the ropewalks were burned and rebuilt. In 1824 the city bought back all these rights. On the 2Gth July and 27th December of that year the town voted on the following questions : — 1. On authorizing the City Council to sell the upland and flats west of Charles street. Rejected, 1,027 to 846. 2. In case the sale was authorized, whether the Common should be forever kept open. Agreed to ; 1,111 for, and 737 against. 3. Whether a settlement should be made with the Boston and Roxbury Mill Co. Rejected, 1,404 to 420. 4. Whether the uplands and flats should be sold south of a line from a point on Charles street, opposite the southwest corner of the Common (1,350 feet from Beacon street), running at an angle of 85° with Charles street, to the bounds of the city flats ; pro- vided^ that the Common and all the upland and flats l^'iug west therefrom should be kept forever free from buildings. :|: This was rejected, 1,404 to 420. 5. Whether the City Council should be authorized to lay out any part of the lands and flats, lying west from the Common, for a cemetery. Rejected, 1,632 to 176. In 1826 and 1827 the lines were settled between the city and the mill company ; the agreement did not prohibit either from building, but provided forfeits in that case. Ma}' 10, 1830, the order was passed banishing the cows from the Common, the price of pasturage having previousl}' been raised from two dollars to ten.§ In 1842 and 1843 the question of selling the Public Gar- den was again agitated, and one result was the publication of those opinions of learned counsel on each side, alread}' printed in Appendix B. The laud south of Boylston street was sold. In 1850 the subject was again considered, and City Document No. 18, of that 3'ear, is an elaborate argument in favor of such a sale. It concludes, however, with the recommendation that the question be submitted to the voters at the next municipal election. In December, 1856, the State, the citj-, and the Boston Water *In 1843, on the plea that this new Bo3'lston street had never been haid out, the city advertised to sell that land, with other land, November 3; but the Uoston &■ Provi- dence Railroad Co. obtained an injunction November 1, enjnining the sale of the street, and June 23, 1845, the injunction was made perpetual. Charles street is mentioned, ia 1814, in the act incorporating the Boston and Roxbury Mill Co., but it was hardly a travelled street even then. tSee Sua. Deeds, lib. 184, f. 142; lib. 290, ff. 193, 4, 5. X We understand by this that the secuiid question was about selling the present Pub- lic Garden, and the fourth question was about the lands lying south of our Roylston- Street extension; and that both were rejected. § Shurtleff, 339. It may be noted that in 1837-9 the Botanic Garden was established in the Public Garden, but it was unsuccessful and short-lived. 64 Appendix C. Power Co., made an agreement about the Back Ba}" territory, by which Arlington street was hiid out, and a strip of land east of said street (28 feet on Boylston street and 155 feet on Beacon street) was added to the Public Garden. In April, 1851), an act was passed by the Legislature (Chap. 210, of that year). It provided that "no building shall hereafter be erected between Arlington and Charles streets, except such as are expedient for horticultural purposes ; provided, that nothing herein contained shall render it unlawful to erect a City Hall on the Pub- lic Garden." This act was accepted b}- the citizens by a vote of 6,287 to 99. The preceding report has given a full account of the later attacks upon the Common. It is worthy of notice in all this recital, that the citizens have always been strenuous in preserving the Common whenever a popular vote has been reached. It is equal!}' apparent that there has not alwa^'s been a sufficient appreciation of that fact on the part of the members of the City Government, and that the popular branch has been more in accord with popular sentiment than the aldermen have. The greatest danger to the Common has alwa3's consisted in the fact that a mistake made by the authorities might be irreparable. A mistake in the use of the Common for a single month, an in- judicious order as to the care of the trees, might do an injur}^ which 3'ears could not repair. It is from no doubt of the capacity of the citizens of Boston to govern themselves, that various statutes have been passed restraining the authority delegated to the City Government. Such enactments will be found to be designed not to thwart the will of the people, but simply to insist that the popu- lar judgment shall be deliberate, since it may be practicably irrevocable. W. H. W. r HE PUBLIC RIGHTS BOSTON COMMON, B E I N (5 THE REPORT OF A COMMITTEE OF CITIZENS. 1882 /% Of BOSTO PRESS OF ROCKWELL AND CHURCHILL No, 39 ARCH 'street. 187 7.