Univ.of UL Library 
 
 34 ^ 
 
 PETITION 
 
 OF THE 
 
 Troy and Greenfield Railroad Company 
 
 TO THE 
 
 Oak Street 
 UNCLASSIFIED 
 
 PHILADELPHIA : 
 
 ALLEN, LANE & SCOTT'S PRINTING HOUSE, 
 Nos. 229-231 South Fifth Street. 
 
 1881. 
 
 LEGISLATURE OF MASSACHUSETTS, 
 
 That jurisdiction may be conferred upon the 
 Supreme Judicial Court to hear and deter- 
 mine the right of the Company to make the 
 redemption reserved in its mortgages to 
 the Commonwealth and by-the act of 1862. 
 
 ARGUMENTS 
 
 OF 
 
 D. W. GOOCH, J. H. CHOATE, JOHN C. BULLITT, FOB 
 THE COMPANY, AND GEORGE MARSTON, ATTORNEY- 
 GENERAL, FOR THE COMMONWEALTH. 
 
 The act of the Legislature of 1862 , Chap. 156, 
 authorizing the Company to surrender its prop- 
 erty to the Commonwealth for completion, and 
 fixing the time within which the Company may 
 redeem the same, and the amount to be paid for 
 such redemption. 
 
TO THE HONORABLE THE SENATE AND 
 HOUSE OF REPRESENTATIVES OF THE 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 The petition of the Troy and Greenfield Railroad Com- 
 pany respectfully represents : — 
 
 I. That under and in pursuance of the provisions of 
 the act of April 5th, 1854, the Troy and Greenfield Rail- 
 road Company executed and delivered a mortgage to the 
 Commonwealth of Massachusetts, under date of January 
 28th, 1855; and that under and in pursuance of subse- 
 quent legislation, other mortgages upon all the property 
 of the corporation were executed and delivered by the cor- 
 poration to the Commonwealth on the 6th July, 1860, 
 and on the 5th April, 1862; and that under the conditions 
 and engagements of the act of 25th April, 1862, entitled 
 “ An act providing for the more speedy completion of the 
 Troy and Greenfield Railroad and the Hoosac Tunnel,” 
 the said The Troy and Greenfield Railroad surrendered 
 possession of all its property to the Commonwealth of 
 Massachusetts, and the commissioners appointed by au- 
 thority of said act took complete possession of all the pro- 
 perty, rights, and interests intended to be conveyed by said 
 mortgages, and proceeded to complete the said railroad and 
 tunnel, and, on or about the 30th June, 1876, opened the 
 same for use. 
 
 II. That by the express language of the second section 
 of the said act, it was declared that the right of redemp- 
 tion should not be barred until after ten years had elapsed 
 after said road and tunnel were completed. In Decem- 
 ber, 1878, your petitioner applied to the Treasurer of the 
 Commonwealth of Massachusetts for an account of the 
 
2 
 
 indebtedness due to the Commonwealth, under the several 
 mortgages mentioned, and offered to pay the amount that 
 should be found due. The Treasurer replied that he did 
 not feel authorized by law to state an account and fix the 
 amount to be paid, in redemption of the mortgages held 
 by the Commonwealth ; and thereupon a bill in equity 
 was filed by your petitioner in the Supreme Judicial 
 Court, in the county of Suffolk, praying for an accounting 
 and tendering the repayment of the amount that should 
 be found to be due. To this bill a demurrer was filed by 
 the Attorney-General on behalf of the Commonwealth, 
 and, upon argument, the said court dismissed the said bill 
 for want of jurisdiction. 
 
 III. That in the year 1804, the Legislature of Massa- 
 chusetts had passed an act providing that whenever any 
 mortgagor who had mortgaged any real estate to the 
 Commonwealth should desire to redeem the same, and 
 there should be a disagreement between the Treasurer and 
 himself as to the sum equitably due upon said mortgage, 
 he should be at liberty to file a bill in equity for the re- 
 demption thereof in the Supreme Judicial Court, in the 
 county of Suffolk; and it was believed by all persons 
 interested in the Troy and Greenfield Railroad Company, 
 at the time of the passage of the act of 28th April, 1862, 
 and of the surrender to the State of the property of the 
 said company, that the right of redemption secured by the 
 second section of said act meant a right of redemption, 
 which could be enforced, in a court of justice, under the 
 authority of that statute, as a legal right; but, by the 
 decision of the said court, it is now established that your 
 petitioner is without remedy at law. 
 
 IV. That by the correspondence with the said Treas- 
 urer of the Commonwealth, it will be seen that there 
 was a disagreement as to the principles upon which the 
 
3 
 
 accounting between the Commonwealth and your peti- 
 tioner should be settled. 
 
 These questions are purely legal questions, which can 
 only be properly determined by a court of justice, and 
 with which the Legislature of Massachusetts has no con- 
 stitutional right to deal. By its legislation for nearly a 
 century the Commonwealth of Massachusetts has recog- 
 nized that it was its duty to submit questions of this char- 
 acter to the decision of the courts, and every civilized 
 government now acknowledges the duty of furnishing a 
 remedy, by process of law, to its subjects or citizens, in 
 such cases. 
 
 It was by the explicit stipulation that your petitioner 
 should have a right of redemption, that the Commonwealth 
 of Massachusetts obtained possession of this property. 
 The true title still belongs to the Troy and Greenfield 
 Railroad Company. The uominal title, held by the Com- 
 monwealth, is held simply in pledge, to secure the amount 
 due. There is a difference of opinion as to what that 
 amount actually is, and no method has been provided for 
 settling that difference. The executive officers of the Com- 
 monwealth disclaim having authority to act, and the court 
 has decided that it has no jurisdiction over the controversy. 
 Unless, therefore, your Honorable Bodies grant relief, 
 your petitioner will be remediless. If the amount were 
 once ascertained, and the Commonwealth should then re- 
 fuse to surrender possession after tender of the amount 
 agreed to be due, such retention of possession would be a 
 simple act of confiscation; and it is respectfully submitted, 
 that unless your Honorable Bodies will now provide a 
 means whereby, according to due course of law, that 
 amount can be ascertained, the result to your petitioner 
 and the character of the transaction will be practically the 
 same as if there were no dispute as to the indebtedness, 
 but a simple exercise of sovereign power, regardless of 
 right, in reliance upon immunity from legal liability. 
 
4 
 
 But it can not be supposed or assumed that the Com- 
 monwealth of Massachusetts will appropriate to itself or 
 retain possession of property which does not belong to it, 
 or that it will refuse to furnish through its courts the 
 remedy for redemption which the contracting parties, viz., 
 The Commonwealth of Massachusetts and the Troy and 
 Greenfield Railroad Company, both understood that said 
 company had at the time the mortgages above referred to 
 were made and possession under act of 1862 given. 
 
 Your petitioner therefore prays that jurisdiction may 
 be conferred, by law, upon the Supreme Judicial Court, 
 to hear and determine the rights of your petitioner in 
 equity to make the redemption reserved to your petitioner 
 under said mortgage and by the act of 1862 , by proper 
 proceedings in equity before said court. 
 
 And your petitioner will ever pray. 
 
ARGUMENT OF D. W. GOOCH. 
 
 Mr . Chairman , and Gentlemen of the Committee: 
 
 As stated in the petition which I have just read, the Troy 
 and Greenfield Railroad Company was incorporated by an 
 act of the Legislature of the Commonwealth of Massachusetts, 
 May 10th, 1848. An act authorizing a loan of the State 
 credit to the amount of $2,000,000 to the company to enable 
 it to construct the Hoosac Tunnel, secured by a mortgage 
 of the entire railroad, franchise, and all other property of 
 said company, was passed April 5th, 1854; and on July 
 28th, 1855, the company made, executed, and delivered to the 
 Commonwealth, a mortgage in strict compliance with the 
 terms of said act. In 1860 the Legislature, finding the exist- 
 ing loan acts imperfect, because the expenditure of the whole 
 two million dollars was confined to the Hoosac Tunnel, and 
 also because the work to be done by the company in the 
 construction of its road and tunnel was not sufficiently de- 
 fined, and in many other respects, passed an act of nine 
 sections, proposing a new contract. By the terms of this 
 contract, the company was to make and file in the proper 
 offices the location of its entire road and tunnel, and the 
 grade, curvature, width of road-bed, and size of tunnel 
 were definitely defined. A State engineer was to be ap- 
 pointed by the Governor and Council, who was to determine 
 the progress that had been made in the work on the tunnel to 
 February 24th, 1860, the amount of work done and materials 
 furnished on the road, east of the tunnel, to December 22d, 
 1859, and fix the data from which to determine the value of 
 any work done or materials furnished subsequently. He was 
 also to estimate, monthly, the amount of work done upon the 
 road and tunnel, and certify the same to the Governor, with 
 the amount of State scrip to which the company would be 
 entitled under the provisions of this act. No further scrip 
 was to be issued to the company under conditions authorized 
 by former acts, but the undelivered portion of the two million 
 dollars, to wit, $1,770,000, was to be divided and apportioned 
 
 (5) 
 
6 
 
 between the railroad and tunnel as follows, viz., $650,000 
 for the completion of the unfinished portion of the road, east 
 of the end of the Hoosac Tunnel, and $1,120,000 for the com- 
 pletion of the tunnel, and delivered to the company upon the 
 conditions provided in the act. The Legislature was to elect 
 two directors of the company, and the company was author- 
 ized and required to purchase the Southern Vermont Railroad, 
 a road in the State of Vermont about six miles in length, 
 extending from the terminus of the Troy and Greenfield Rail- 
 road on the line of Massachusetts to the terminus of the Troy 
 and Boston Railroad on the line of New York, and to enable 
 it to do so, and to transfer the same to the Commonwealth, as 
 additional security, a further loan of scrip to the amount of 
 $200,000 was to be issued by the Commonwealth. The 
 company was to accept the provisions of this act and to give 
 the Commonwealth a new mortgage, both of which acts were 
 lduy performed by the company at a special meeting of stock- 
 holders, called for that purpose. 
 
 This action by the Commonwealth and the company, recog- 
 nizing the action taken by the company up to that time, and 
 providing that the security of the Commonwealth should not 
 be impaired, constituted a new contract to the fulfilment of 
 which each party was bound. Colonel Ezra Lincoln, of Boston, 
 was appointed State engineer. He approved the location of 
 the road made by the company, and fixed the data for the 
 determination of the value of materials and work, as required 
 by the act of 1860 above referred to, and submitted to the 
 Governor the monthly estimates, as required by the late acts. 
 In the fall of the same year he resigned the office of State 
 engineer, in consequence of illness, and C. L. Stevenson, Esq., 
 who had been his associate, was appointed to the same. The 
 work on the tunnel and road was advanced rapidly till the 
 summer of 1861 ; just prior to this time Mr. Stevenson had 
 been removed by the Governor, and Mr. William S. Whitwell 
 appointed in his place. Mr. Whitwell immediately changed 
 the data fixed by Colonel Lincoln, approved by Mr. Stevenson, 
 under which all contracts had been made, and the work prose- 
 cuted since 1860, and the Governor refused to issue the scrip to 
 which the contractors were entitled for work already done and 
 
7 
 
 materials furnished under data fixed as aforesaid, and thus pre- 
 vented the contractors from receiving about $100,000 for ma- 
 terials furnished and work already done. These acts of the State 
 engineer and the Governor compelled a suspension of the work 
 by the contractors. The company immediately, to wit, on the 
 22d of July, 1861, made an appeal to the Governor and Coun- 
 cil, remonstrating against this action of the State engineer and 
 the withholding of the scrip to which it was entitled. This 
 memorial was referred to a committee of three members of the 
 Council, who reported at length under date of August 21st, 
 1861. The report finds that the difference between the esti- 
 mates for the work done in the months of May and June, on 
 the basis and prices established by Colonel Lincoln, and the 
 amount awarded by Mr. Whitwell, viz., $97,000, was justly 
 due the company from the Commonwealth, and fully exoner- 
 ates the company and its contractors, and places the whole 
 blame and responsibility for the suspension of the work on the 
 officers of the State. The Governor refused to accept the re- 
 port of this committee of the Council, and ordered a hearing 
 before the full Council. This hearing was had, but neither 
 the company nor its contractors were notified and were not 
 present, or represented at the hearing. The Governor claimed 
 that the testimony, given at this hearing, sustained the posi- 
 tion taken by him, but the Council dissented and presented 
 the following protest to his indorsement of the official action 
 of State Engineer Whitwell : — 
 
 Commonwealth of Massachusetts, 
 Executive Department, Council Chamber, 
 Boston, December 26th, 1861. 
 
 In the matter of the Troy and Greenfield Railroad Com- 
 pany, the undersigned, members of the Executive Council, 
 dissenting from the opinion of his Excellency the Governor, 
 given September 26th, 1861, and his reasons therefor, so far 
 as he indorses the official policy of the present State engineer, 
 desire to place on record the ground for such dissent as fol- 
 lows : — 
 
 It is our opinion that the good faith of the State was law- 
 fully pledged by the first engineer appointed under the act of 
 
8 
 
 1860 to the estimates agreed to by him, which became the 
 basis for the sub-contracts for the building of the road, and 
 that no succeeding engineer could rightfully “ impose new 
 requirements ” or change this basis in reference to work done 
 and materials furnished previous to his appointment, nor 
 afterwards until authorized so to do by the Governor and 
 Council, who alone are empowered by law “ to correct abuses, 
 remedy defects, and enforce requirements, by withholding 
 scrip or imposing new requirements as the interests of the 
 Commonwealth shall in their judgment require.” 
 
 This seems to us to be an interpretation of the law which 
 best accords with the spirit of the statute without infringing 
 upon its letter, and the one best adapted to serve the interests 
 of the State. 
 
 (Signed) Hugh W. Green. 
 
 E. C. Sherman. 
 
 Joel Hayden. 
 
 John I. Baker. 
 
 James Bitchie. 
 
 James M. Shute. 
 
 Oakes Ames. 
 
 This protest the Governor refused to receive, or to permit 
 the same to be made a part of the record, and consequently 
 no further action was taken by the Governor and Council, and 
 the work remained suspended. 
 
 When the Legislature of 1862 assembled, so much of the 
 Governor’s message as related to the Troy and Greenfield 
 Railroad, and the various petitions and memorials relating to 
 the same, were submitted to a joint special committee, com- 
 posed of three members of the Senate and seven of the House. 
 This committee, under date of March 21st, 1862, made a 
 report to the Legislature fully sustaining the decision of the 
 Council that the company was not in default, and that the sus- 
 pension was caused by the misapprehension of their duties by 
 officers of the Commonwealth. The following are extracts 
 from the report above referred to : — 
 
 “ Before proceeding to the examination of the grave ques- 
 tions suggested in the Governor’s address, your committee 
 
9 
 
 were led to inquire into the causes which occasioned the sus- 
 pension of the work upon both the railroad and the tunnel, 
 in July last, with the view of ascertaining whether this sus- 
 pension was a necessary result of the act of 1860, con- 
 strued correctly and carried into effect in accordance with the 
 intentions of the Legislature passing it, or whether a misappre- 
 hension of its spirit and misconstruction of its terms, on the 
 part of any of the persons called upon to administer its pro- 
 visions, produced or compelled this result. After careful pon- 
 sideration of the evidence submitted to the committee of the 
 Council, and to the Governor and Council, at the several hear- 
 ings before those bodies, last fall, and a lengthy examination 
 of the representative of the Troy and Greenfield Railroad 
 Company, the several persons who have occupied the position 
 of State engineers, under the act of 1860, and such other 
 persons as were supposed to be able to throw some light upon 
 the inquiry, your committee, with a single exception, were 
 agreed that the main if not the sole cause of the suspension 
 of the work upon the road from Greenfield to the tunnel was 
 the misapprehension on the part of the last State engineer of 
 the duties incumbent upon him under the act of 1860. In 
 arriving at this conclusion, the committee find no occasion 
 far imputing want of good faith in Mr. Whitwell. On the 
 contrary, they are unanimously of opinion that his course 
 was governed by his belief that the act of 1860 required him 
 to ignore any and all plans established by his predecessors 
 for the construction of the road, if those plans, when fully 
 carried into effect, would not result in the construction of 
 such a road as, in his judgment, should be built upon that 
 location. 
 
 “ Your committee do not deem it necessary to enter upon a 
 critical analysis of the provisions of the act of 1860, nor do 
 they feel compelled to decide whether Colonel Lincoln or Mr. 
 Whitwell has exhibited the better judgment in determining 
 the character of the road which should be constructed from 
 Greenfield to the tunnel. In their opinion, the true construc- 
 tion of the act of 1860 required the State engineer who 
 should^be first appointed under it to decide upon the quality 
 of the road to be constructed, and determine its peculiar 
 
10 
 
 characteristics, and that this decision was properly subject to 
 no change except at the instigation of the Governor and 
 Council, under the general supervision, power to correct 
 abuses and remedy defects, given them by the act. It seems 
 to them that any other construction must lead to inevitable 
 confusion, and forever prevent the successful accomplishment 
 of the work, inasmuch as every change of State engineers 
 might result in an entire change of the character of the work 
 to be performed and of the arrangements previously made. 
 
 “ Looking at the question from a financial point of view alone, 
 and regarding solely the pecuniary interest of the State, your 
 committee are unanimously of opinion that the work should 
 not be abandoned, if any policy can be adopted which will 
 insure both economy and success. 
 
 But there is another, and, to the minds of the committee, 
 graver light in which this question should be viewed. Com- 
 mencing in 1854, repeated legislation has settled the policy of 
 the State respecting this enterprise. Regarding the good faith 
 of the Commonwealth, it can hardly be now considered an 
 open question. To the extent of a loan of $2,000,000, the 
 State faith is pledged to the aid of the work ; and although 
 the manner of its application has been from time to time 
 changed, as practical experience has exhibited the imperfec- 
 tion of previous legislation, the amount of the aid in some 
 way to be furnished has never been changed from 1854 to the 
 present time. 
 
 “ Relying upon the good faith of the State thus pledged, by 
 permission of the legislature, the towns upon the line of the 
 road have made subscriptions to an amount equal to three per 
 cent, of their respective valuations, and from these subscrip- 
 tions there has already been realized in cash paid into the 
 treasury of the company, the sum of $125,100. Considering 
 the certainty of long delay in realizing anything from divi- 
 dends, and consequent loss of interest, but relying upon the 
 same pledges, individuals interested in the work have made 
 liberal subscriptions, upon which has already been paid about 
 $200,000 ; and contractors, induced by the same pledge of 
 State aid, and by the hope of obtaining personal reputation 
 
11 
 
 upon the successful accomplishment of a work so vast, and in 
 which success they have had, and still have entire confidence, 
 have expended in cash, and incurred liabilities to an amount 
 exceeding $350,000. 
 
 “ Upon this view of the question of abandonment, your com- 
 mittee concur in the belief that the State cannot now with- 
 hold its aid to this enterprise, to the extent at least of the 
 $2,000,000 first proposed to be loaned, unless, and until, in 
 the further prosecution of the work, some obstacle shall be 
 encountered which shall render further progress impossible. 
 Certainly not without affording and paying full and complete 
 remuneration and compensation to all towns, individuals, and 
 corporations suffering loss thereby. 
 
 “ The road from Greenfield to the tunnel is already nearly 
 completed. In loans from the State, and payments and lia- 
 bilities of contractors, there has been expended upon it, and 
 for material for its construction, about $800,000. 
 
 “ At the time of the suspension of the work upon it, the sums 
 required for its completion varied from $100,000 to $200,000, 
 the variation depending upon the question whether the work 
 should be completed in accordance with the plans of the first 
 or of the last State engineer. 
 
 “The estimates of loss occasioned by the suspension are 
 highly conjectural, and vary from $10,000 to $100,000. 
 
 “ From the evidence submitted to them, the committee are of 
 opinion that the road can be completed to the tunnel, and put 
 in running order, fora sum not much, if any, exceeding $200,- 
 000, without considering the sums, if any, to be paid as damages 
 to persons suffering loss from the suspension. 
 
 “ The next and final question considered by your committee 
 was, how shall the work be further prosecuted ? — whether by 
 the State, as a State enterprise alone, acting through its own 
 agents, and wholly ignoring the existence of the corporation, 
 or by the corporation with aid from the State under such 
 limitations and restrictions as shall insure economy in disburse- 
 ment of money, and the application of funds to the construc- 
 tion of a work which, when finished, shall be found adapted 
 
12 
 
 to its purposes. If the State was to assume all existing lia- 
 bilities on account of this road, and to complete and . put in 
 running order the whole work, without regard to the expense, 
 and having no reference to the sum which it has heretofore 
 agreed to loan in aid of the enterprise, there would seem to 
 be some degree of propriety in its taking the work wholly into 
 its own hands ; but inasmuch as no one contemplates aid from 
 the State to an extent exceeding $2,000,000, made equivalent 
 to cash advancements, and excluding losses of interest, and 
 other losses consequent upon errors of its own agents ; and as 
 no sufficient reason has been shown for taking the work out 
 of the hands of the corporation — indeed no reason save that 
 it has expended all the funds it has been able to collect towards 
 the work, and in its present stage cannot get further sub- 
 scriptions to its stock — the committee see no necessity of the 
 prosecution of the work save through the usual and regular 
 channels, and without such necessity they cannot recommend 
 that the State should assume the place and duties of the cor- 
 poration.” 
 
 The concluding paragraph of the report is as follows : — 
 
 “ The unanimity*with which your committee have arrived at 
 their conclusions, after a long, patient, and careful investiga- 
 tion, impels them to the belief that the interests of the State 
 will be best subserved by their adoption. They therefore re- 
 port the accompanying bill. 
 
 “ The first section of this bill is as follows : — 
 
 “ Section 1. The treasurer of the Commonwealth is hereby 
 authorized and instructed to pay into the hands of the presi- 
 dent of the Troy and Greenfield Railroad Company, the sum 
 of $150,000, which shall be applied by him, in satisfaction of 
 claims for labor, service, materials, supplies, merchandise, land 
 damages, and other liabilities incurred before July 12th, 1861, 
 in carrying on the work of the Troy and Greenfield Railroad, 
 and to release all attachments and discharge all liens on said 
 material ; and if the sum herein appropriated shall be more 
 than sufficient to discharge said claims, the surplus shall, 
 within four months from the passage of this act, be returned 
 
13 
 
 to the treasurer of the Commonwealth : Provided , That pre- 
 vious to the furnishing of such funds, the said president shall 
 give a bond to the Commonwealth in a sum and with sure- 
 ties satisfactory to the Governor and Council, conditioned that 
 said funds shall be appropriated to the purposes specified in 
 this section/* 
 
 This action of the Council of 1861, and of the Joint Special 
 Committee of the Legislature of 1862, is a part of the record 
 of the Commonwealth of Massachusetts, and seems to estab- 
 lish beyond all honest question or controversy that the Troy 
 and Greenfield Railroad Company and its contractors had 
 acted in good faith, had faithfully kept and performed their 
 part of the contract, up to the twelfth day of July, 1861, the 
 day of the suspension of the work, and that neither the com- 
 pany nor its contractors were legally or morally responsible 
 for the suspension of the work ; that the Commonwealth was in 
 default, that $97,000 were due from the Commonwealth and 
 should have been paid, and that the rule of construction con- 
 tended for by the Governor, to wit, that each new State 
 engineer could disregard and annul all acts and decisions 
 of his predecessors, even in reference to work completed and 
 paid for, was such as to forever prevent the successful prose- 
 cution of the work. 
 
 The Governor refused to recede from the position he had 
 taken, and it was understood that the bill which the Joint 
 Special Committee bad recommended, or any other which 
 should give to the company its rights, and enable it to 
 prosecute the work according to the terms of the contract, 
 would meet his veto, and consequently could not, with the op- 
 position in the Legislature with which this enterprise had 
 always had to contend, become a law 7 ; and notwithstanding 
 the Joint Special Committee, after a most full and thorough 
 investigation, had reported that there was no reason to take 
 the work out of the hands of the corporation, and no necessity 
 for its prosecution, save through the usual and regular chan- 
 nels, it was found that “ the grand enterprise of tunnelling the 
 mountain ” must either be abandoned, or that all the property 
 and rights of the Troy and Greenfield Railroad Company 
 
14 
 
 must be surrendered to the Commonwealth, as mortgagee, to 
 enable it to take the prosecution of the work into its own 
 hands. 
 
 There was no breach of contract, no default, on the part of 
 the company. The breach of contract, the default, was on 
 the part of the Commonwealth ; its officers had refused to do 
 what the Commonwealth had contracted to do. It was not 
 even pretended that the Commonwealth had the right to take 
 possession of the property for any default or breach of condi- 
 tion on the part of the company. This being the position of 
 the parties, another and further contract was proposed on the 
 part of the Commonwealth, in which, by its very terms, the 
 acknowledgment is made that the Commonwealth is in default. 
 I refer to the act of April 28th, 1862, entitled “ An act for 
 the more speedy completion of the Troy and Greenfield Rail- 
 road and the Hoosac Tunnel.” When this new contract was 
 proposed, providing for the surrender of its property into the 
 hands of the Commonwealth, for the prosecution of the work, 
 the company fully understood that it was dealing with a sover- 
 eignty, and was not willing to rely exclusively on the prin- 
 ciples of law and equity applicable to the redemption of mort- 
 gaged estates. The company foresaw that the Commonwealth 
 might desire and claim to hold the whole property beyond the 
 time fixed by law, within which the company might redeem. 
 To meet this objection the second section of the act, which also 
 recognizes the fact that the Commonwealth has no right to 
 claim the surrender, provides as follows : — “ The Troy and 
 Greenfield Railroad Company is hereby authorized to sur- 
 render to the State the property now mortgaged ; but the right 
 of redemption shall not be barred until ten years shall have 
 elapsed after said road and tunnel are completed and the same 
 open for use.” 
 
 The company also foresaw that the Commonwealth might 
 expend a sum of money far greater than the company would 
 expend in the completion of the road and tunnel which 
 it was building, and, while by the established rules of law and 
 equity, it could not claim an amount greater than that speci- 
 fied in the mortgage, and absolutely necessary for the comple- 
 tion of the exact and well-defined and limited road and 
 
15 
 
 tunnel which the company was constructing, it feared then, 
 it knows now, that there would be men who would claim, on 
 behalf of the Commonwealth, what honorable men would 
 blush to claim for themselves, namely, that any amount of 
 money which the Commonwealth might expend for its own 
 purposes, and to make this road and tunnel a grand public 
 work to which the Commonwealth could invite the attention 
 of the world with pride and satisfaction, should be repaid by 
 the company as a condition of redemption. The Common- 
 wealth disclaimed any such intent, purpose, or wish, and to 
 satisfy the company, inserted in the contract itself the pro- 
 vision that it would claim only the $2,000,000, as specified in 
 the mortgage. The language is as follows : — 
 
 “ Provided , That all expenditures and advances made 
 under and by virtue of this act, shall be on account and 
 form part of the $2,000,000 authorized to be loaned in State 
 scrip to the Troy and Greenfield Railroad Company, by chap- 
 ter 226 of the Acts of 1854 ; and said expenditures and ad- 
 vances, together with all sums hitherto advanced to said 
 company, excepting the sums advanced on account of the 
 ‘Southern Vermont Railroad,’ shall not exceed in amount 
 the said $2,000,000.” 
 
 This provision was inserted in the bill after it had passed 
 the Senate and when it was under consideration in the House. 
 Its phraseology is remarkable ; the bill was to constitute a 
 part of a contract, which the State was about to make with 
 the Troy and Greenfield Railroad Company, and would be a 
 nullity unless the company was willing to agree to its terms and 
 surrender its property. This the company would not do with- 
 out an express limitation of the amount the repayment of 
 which the Commonwealth might claim as a condition of re- 
 demption ; therefore this proviso was inserted, and the phra- 
 seology ,is full, perfect, and exact for the purpose intended. 
 While it carefully protects the company, and limits the ex- 
 penditures which can be made and charged to it, it places no 
 limitation or restriction on the amount which the Common- 
 wealth may expend for the completion of the work. The act 
 from its title to its end shows that the Commonwealth took 
 
16 
 
 this railroad and tunnel into its hands to complete and open 
 the same for use. 
 
 At this time $1,174,600 of the $2,000,000 agreed to be 
 loaned by the Commonwealth to the company remained in 
 the possession of the Commonwealth and unexpended. There 
 was probably not a man, either in the Senate or the House, who 
 had so little knowledge in relation to this subject that he did 
 not then know that the railroad and tunnel, such as the State 
 would probably build, could not be completed and opened for 
 use by the State for the sum of $1,174,600; therefore, to 
 claim that this provision was inserted for any other purpose 
 than that above stated is to claim that the Legislature stulti- 
 fied itself; that it provided that this railroad and tunnel 
 should be completed and opened for use for a sum of money 
 which every one of its members knew was wholly insufficient 
 to accomplish that purpose. The Legislature of Massachusetts, 
 as long ago as 1862, knew that even sovereignty by its fiat 
 alone could not build railroads and tunnel mountains. More 
 fit and apt words to accomplish the real object which the 
 Legislature had in view, to wit, to limit the amount of 
 expenditure on the road and tunnel to be charged to the com- 
 pany, and at the same time impose no limit or restriction on 
 the amount the Commonwealth might expend, could not have 
 been used. The first section of this act shows that the Legis- 
 lature did not pretend to know what it would cost to com- 
 plete the road and tunnel, and therefore the Governor and 
 Council were directed to appoint a commission to ascertain, 
 among other things, what the cost would be. This commis- 
 sion, on the 28th day of April, 1863, only ten months after 
 the passage of the act, reported their estimated cost with in- 
 terest for the completion of the tunnel and road and its equip- 
 ment to be $5,719,330; or, if we deduct cost of rolling stock 
 and interest during construction, $4,922,236. It will thus be 
 seen that almost before a dollar had been expended by the 
 Commonwealth, in the prosecution of the work, after the sur- 
 render, the Commonwealth was notified, as its records show, 
 by the engineers it had selected for the purpose, that it would 
 cost the State a sum of money far in excess of the sum men- 
 tioned in this proviso to complete the work ; and its records 
 
17 
 
 also show that it was advised by the learned counsel, Hon. 
 Emory Washburn, whose opinion it asked, that the amount 
 which it could claim from the company as a condition for re- 
 demption was definitely fixed and limited by the proviso above 
 quoted. The Commonwealth has not even the poor pretext 
 for the non-fulfilment of this contract, according to its terms, 
 that it was mistaken either in the law or the fact. 
 
 The Commonwealth knew then, as every individual knows 
 now, that this railroad and tunnel, when completed and opened 
 for use, would not be worth more to the company than the 
 million of dollars which the company had invested of its own 
 funds and the two millions of dollars to be furnished by the 
 Commonwealth, namely, three millions of dollars, with such 
 interest as should accrue thereon; and consequently were 
 willing to stipulate that the company should have the right 
 to redeem on the payment called for by the terms of the 
 mortgage ; and that it would be only just and right that any 
 excess of expenditure, no matter how great, should be borne 
 by the Commonwealth ; the great benefit resulting to the 
 Commonwealth, as a whole, from the opening of another com- 
 munication with the great West, believed then, and known 
 now, to be absolutely necessary for the maintenance and de- 
 velopment of the interests of Massachusetts, to be the com- 
 pensation for such excess. 
 
 The Commonwealth then recognized the fact, that, by the 
 rules of law and equity, it must build the road and tunnel 
 which the company was building, at the time of the surrender, 
 which had been specifically and exactly described and defined 
 by the Commonwealth in its act of 1860 ; which act, by its 
 acceptance by the company, became a part of the contract, 
 and foreseeing that it might wish to make some change in the 
 grade or location of the road, and that any such change, un- 
 authorized by the company, might defeat its mortgage, pro- 
 vided in the act for such changes of grade and location, by 
 the insertion of the following clause, viz. : “ Such changes 
 may be made in the location and grades of the road as may 
 be necessary to improve the same.” 
 
 With this right conceded by the company, the Common- 
 wealth assumed, and perhaps correctly, that it could build 
 
18 
 
 such railroad and tunnel, not inferior in any respect to the 
 railroad and tunnel provided for in the contract, as it might 
 choose, limited in its expenditure only by its own sovereign 
 will, and wholly without regard to the value of the work, for 
 railroad purposes, when completed ; the essential condition 
 being that the road and tunnel must be of such a character 
 that the company could not object, as a condition for redemp- 
 tion, to the payment of the sum specified in the mortgage,, 
 thaf either the road or tunnel was inferior to the road and tun- 
 nel provided for by the act of 1860. The finished excava- 
 tion of the tunnel must be fourteen feet wide and eighteen 
 feet high in the middle, and of course might be as much 
 larger as the Commonwealth should see fit to make it. The 
 road-bed must be, at grade fifteen feet, on embankments sev- 
 enteen and a half feet in side cuts and twenty feet in 
 through cuts, and might exceed th^ese limits to any extent 
 which the Commonwealth should please. The increased size 
 of the tunnel and width of road-bed, while wholly unneces- 
 sary for the road which the company was building, would 
 not decrease the value of the same, and, as the sum which the 
 company was to pay for redemption had been expressly 
 agreed upon, could not, on account of the increase of size and 
 expenditure, be objected to on the part of the company. 
 
 Had the company or any one of its officers or agents then 
 suggested that, when the company should propose to redeem, 
 within ten years after the road and tunnel should be comple- 
 ted and opened for use, on the payment of the sum called for 
 by the terms of the contract, by proper process in the court 
 understood by both parties at the time the contract was made 
 to have jurisdiction of the matter, the Commonwealth would 
 appear, by its highest law officer, and plead in bar that it was 
 a sovereign, and therefore should be protected from such per- 
 formance of its contracts as its own highest court might decree, 
 and that, when that court should find that the Legislature had 
 not specifically given it jurisdiction in equity of questions 
 arising out of railroad mortgages, made to and held by the 
 Commonwealth, the same having been understood by the Legis- 
 lature to have been already conferred, and consequently should 
 refuse to take jurisdiction of the case, and the company 
 
19 
 
 should then appeal to the Legislature to confer on the court 
 the jurisdiction which both parties understood that it had 
 when the contract was made, that he would then be told that 
 the Commonwealth would not give the court jurisdiction to 
 hear and determine his rights according to the contract exist- 
 ing between the parties, and that it would only confer the 
 jurisdiction to hear and determine what its rights would be 
 under an entirely new and different contract, the terms of 
 which it should be permitted to dictate, as a condition for 
 granting the court jurisdiction, such a suggestion would have 
 been spurned with indignation, and the party making it would 
 have undoubtedly been asked, What is there in the history 
 or character of Massachusetts that you dare thus to impeach 
 her honor ? 
 
 With its rights guarded and protected in the manner 
 already stated, the company duly surrendered its property 
 to the Commonwealth, and thus completed another and the 
 last contract between tij^e parties. It surrendered to the 
 Commonwealth everything that it possessed and was ; all 
 its property, including its franchise, to be held by the 
 Commonwealth, till such time as the purposes for which the 
 surrender was made should be accomplished; and thus 
 relieved itself, for the time being, from all its duties and 
 responsibilities. No other or further contract was made be- 
 tween the parties, and no other or further proposal for changes 
 of contract was ever made or suggested. The company then 
 understood, and now understands, that no further action on 
 its part, of any name, nature, or description, was required by 
 its contract or expected by the Commonwealth, until the work 
 which the Commonwealth had assumed and agreed to do was 
 completed. The manner in which the Commonwealth should 
 prosecute the work, the agencies which it should use, the con- 
 tracts which it should make, the amount of money it should 
 expend, were all matters over which the company had no con- 
 trol, and with which it had no right to interfere. The cir- 
 cumstances under which the property had been surrendered, 
 as well as the terms of the contract by which it was surren- 
 dered, not only relieved the company from all obligations, but 
 effectually barred it from all voice and interference in relation 
 
20 
 
 to the prosecution of the work by the Commonwealth ; and 
 any attempt on the part of the company to dictate to the Com- 
 monwealth how the work should be prosecuted, or to protest 
 against any mode of prosecution of the work which the Com- 
 monwealth might propose to adopt, or any expenditure which 
 the Commonwealth might propose to make, would have been 
 regarded by the Commonwealth as a wholly unwarranted in- 
 terference, and the party making such protest would have un- 
 doubtedly been told that the rights of the Troy and Greenfield 
 Railroad Company were duly protected by the contract, and 
 that the Commonwealth felt itself competent to determine the 
 manner in which it would prosecute the work, and the amount 
 of expenditure it would make on the same, and that it did not 
 need the interference or protection of the Troy and Greenfield 
 Railroad Company for either purpose. 
 
 I know that it is now claimed by some that the Troy and 
 Greenfield Railroad Company should somewhere, at some time, 
 have made a protest against the great expenditure of money 
 by the Commonwealth. I have never seen any man who knew 
 or could determine when, how, at what stage of the work, or 
 under what circumstances such protest should have been made ; 
 and I shall feel under great obligation to any one who will in- 
 form me, stating exactly the amount of money that had been 
 expended by the Commonwealth, and the exact progress made 
 on the work by the Commonwealth, at the precise time when 
 such protest should have been made, and also what should 
 have been the form of the same, and on what right or author- 
 ity, on the part of the company, it should have been based. 
 The very protest which it is now claimed that the Troy and 
 Greenfield Railroad Company should have made against this 
 great expenditure of money by the Commonwealth was, as be- 
 fore stated, made in advance, at the time when the surrender 
 of this property for the purposes of completion by the Com- 
 monwealth was asked. The Commonwealth was then told 
 that, if it took possession of this property for the purpose of 
 completing it, it would probably expend a sum of money 
 greatly in excess of what the company would expend therefor ; 
 and the surrender would never have been made, had not the 
 Commonwealth agreed that, while it was at liberty to expend 
 
12 
 
 what sum it might please, no more than the sum called for by 
 the terms of the contract should be claimed from the company 
 as a condition of redemption. 
 
 The pretence that any such protest should have been made 
 by the company is an after-thought, and excusable only on the 
 assumption that the party making it is not familiar with the 
 terms of the contract and the records of the Commonwealth 
 of Massachusetts in relation to this subject. To assume that 
 Massachusetts will take any such position, is to assume that 
 she is willing to admit that she was so far incompetent to 
 prosecute the work which she had undertaken to do, and ex- 
 pend the proper sum of money therefor, that it became the 
 duty of the Troy and Greenfield Railroad Company to assume 
 the position of guardian and protector, and to prevent her, by 
 protest or otherwise, from an improper expenditure and waste 
 of her resources. Is there an honest man in the Common- 
 wealth of Massachusetts who will say that the Common- 
 wealth made this expenditure of $16,000,000 in excess of the 
 sum named in the mortgage, expecting to be reimbursed there- 
 for, otherwise than by the benefit which would result to the 
 whole State from the opening of a new line of communication 
 to the West, as already stated? Can there be anything more 
 unreasonable than to claim now that the company did not 
 afterwards, at some time which no man can determine, renew 
 this protest ; or is there any man who will admit that the Com- 
 monwealth made this expenditure of money, on property 
 which it had obtained in the manner above described, with 
 the intent or purpose of placing it in such a position that its 
 owners, the mortgagors, should never be able to redeem the 
 same? 
 
 It was well known at the time of the surrender, that the 
 million dollars furnished by the company, and the two million 
 dollars furnished and to be furnished by the Commonwealth, 
 with the interest that would accrue thereon, would reach an 
 amount fully equal to and perhaps greater than the full value 
 of this road and tunnel for any legitimate railroad purposes, 
 when the same should be completed and opened for use ; so 
 that the limitation of the sum to be paid by the company for 
 redemption to $2,000,000, without regard to the amount 
 
22 
 
 which the Commonwealth might expend, was not only in every 
 respect just and right to the company, but was based on sound 
 business principles. The company did not surrender its proper- 
 ty with the expectation that the Commonwealth would so use the 
 power which it gained by the surrender as to make redemption 
 impossible. The Commonwealth did not ask the surrender with 
 the intent, purpose, or expectation of placing the property in 
 such position as to render its redemption by the company im- 
 possible. The whole history of the transaction at the time of 
 the surrender shows that the Commonwealth did not intend 
 to deprive the mortgagor of its property, and to become the 
 owner and operator of the railroad. The very title of the act 
 of 1862 shows that it only asked the surrender because it be- 
 lieved the Commonwealth could complete the work more 
 speedily and successfully than the company could, and that 
 the expectation was that the company would again come into 
 possession of its property and operate this railroad. The 
 ownership and operation of a railroad were contrary to the well- 
 established policy of Massachusetts. To assume that the Com- 
 monwealth had any intention or expectation of making itself 
 owner of the property, or any intention or purpose to expend 
 upon it such sums of money, in excess of the two million dollars, 
 and claim the same from the mortgagor, as would render re- 
 demption impossible, is to charge upon the Commonwealth the 
 most base and infamous fraud. The provisions of the act, which 
 protect in terms the rights of the mortgagors, forever repel 
 such assumption, and any man who will carefully examine all 
 the facts in the case, will find himself fully satisfied that if any 
 blot is to be cast upon the reputation of Massachusetts, in 
 connection with this matter, it will not be placed there in con- 
 sequence of any act she has done or contract she has made up 
 to this time, but will result from her refusal to execute, in 
 good faith and according to its terms, the contracts she has 
 made. 
 
 Massachusetts has ever prided herself that she has fulfilled 
 with scrupulous honesty every promise made, and that her 
 integrity is like that of David’s perfect man, — 
 
 “ Who to his plighted vows and trust 
 Has ever firmly stood, 
 
 And though he promise to his loss, 
 
 He makes his promise good.” 
 
23 
 
 There is no doubt that Massachusetts has promised that 
 this railroad company shall have the right to redeem on the 
 payment of the amount called for by the terms of its mortgage. 
 If she has promised to her loss, will she, for that reason, re- 
 fuse to perform ? If this question shall be answered in the 
 affirmative, a grave responsibility will rest upon the men, no 
 matter what their official position may be, who shall make for 
 her that answer ; and any attempt at evasion, such as the offer 
 of a remedy for redemption, coupled with provisions and con- 
 ditions which change the rights of the parties under existing 
 contracts, will be a deeper stain on her honor than a direct 
 refusal to do what she has agreed to do. 
 
 But Massachusetts has not promised to her loss. I have 
 said that the contract which she made with the company, by 
 the terms of the act of 1862, was based, at the time when 
 made, on sound business principles ; subsequent events have 
 fully demonstrated that the property was not, at the time of 
 its completion, and has not been since, up to the present time, 
 worth more, for any legitimate railroad purposes, than the sum 
 expended by the company of its own funds and the amount 
 agreed upon by the terms of the mortgage to be furnished by 
 the Commonwealth. 
 
 It is well understood that it is no part of the exercise of the 
 legitimate powers of a State to own and operate a railroad ; 
 but, on the other hand, it is actually derogatory, for the 
 reason that it must waive its sovereignty, for the purpose of 
 entering into contracts, and all the other details of business 
 incident to the ownership and operation of a railroad, and 
 place itself on terms of equality with the railroad corpora- 
 tions which it has created and over which it has sovereign 
 power, and also on terms of equality with every individual, be 
 he citizen or alien, who may transport merchandise or ride in 
 person over its road. It is also well understood that a rail- 
 road company can own and operate a railroad in such manner 
 as to render to the public the best possible service, and at the 
 same time receive a just and proper income from the same ; 
 while the same railroad, owned and operated by a sovereign 
 State, would be a constant source of embarrassment, contention, 
 and loss : therefore I say that the pecuniary interest not les 3 
 
24 
 
 than the honor of Massachusetts requires that she shall give to- 
 the Troy and Greenfield Railroad Company the remedy which 
 it asks, and that every good citizen, whatever his position may 
 he, should use his influence to secure the return of this property, 
 by the Commonwealth, to the company chartered to build and 
 operate it, in strict compliance with the terms of the contract. 
 
 In 1855 the company, to obtain additional funds for the 
 prosecution of this work, made a mortgage to Smith and 
 others, trustees, to secure its bonds to the amount of $900,000, 
 which mortgage was made in terms subject to the prior mort- 
 gage to the Commonwealth to secure State bonds to the 
 amount of $2,000,000, which were to be issued under the act 
 of 1854, above referred to. Two other mortgages were subse- 
 quently made to the Commonwealth, to wit, one under date 
 of July 6th, 1860, and the other under date of March 5th, 
 1862, both to secure the same $2,000,000. In 1863, after the 
 company had surrendered its property to the Commonwealth, 
 reserving the right of redemption, and when only part of 
 the $2,000,000 had been advanced, a question arose as to the 
 effect of the Smith mortgage, and whether or not it in any 
 way affected the right of the Commonwealth under said mort- 
 gages. In 1863, this question, with others, was submitted to Hon- 
 orables Dwight Foster, Emory Washburn, and Isaac F. Red- 
 field, for their opinions. Each of these distinguished law- 
 yers, in his opinion, fully recognized both the right and power 
 of the company to redeem its property, and the opinion of 
 each of them is based on that recognition. Had they 
 found that the company had not that right, that the title of 
 the Commonwealth as against the Troy and Greenfield Rail- 
 road Company and its mortgagees was indefeasible, there would 
 have been no occasion for any further finding or opinion, and 
 all there is of these opinions would have been uncalled for 
 and useless. They all agree that the Commonwealth had 
 the right to expend the $2,000,000 as provided in the mort- 
 gage, and that it could hold the property as security for the 
 same ; and the Commonwealth was then expressly told that 
 there was a limit to the amount which it could expend and hold 
 the company responsible for the payment of the same, as a con- 
 
25 
 
 dition of redemption. Mr. Washburn, in his opinion, says : 
 “ As against the Troy and Greenfield Railroad Company, the 
 Commonwealth, as mortgagee, may clearly hold the road, its 
 franchise, and other property to this extent [$2,000,000]. 
 • * * The Commonwealth may hold the property and com- 
 
 plete the road, and receive its income and earnings during the 
 ten years mentioned in the act, unless sooner redeemed, and their 
 mortgages, for all advances on account of this, would be good as 
 against the Troy and Greenfield Railroad Company. But the 
 terms of the act of 1862, chapter 156, section 7, under which 
 this is to be done, limits the amount to which this expenditure 
 may be made by the Commonwealth to $2,000,000. * * * 
 
 It is difficult to say that this power to advance money and 
 hold a lien for the same is unlimited, or if limited at all, to 
 know where to fix any limit other than the original $2,000,000.” 
 
 It was suggested, in these opinions, that a case could be 
 made up in the form of a bill in equity by the Commonwealth 
 against the trustees, to test the rights of the Commonwealth 
 and the trustees of the Smith mortgage under their respec- 
 tive mortgages. This course was adopted by the Common- 
 wealth, and the case, as made up and submitted by the Com- 
 monwealth, is found in 10 Allen, 448. In this case, the 
 Commonwealth, in its agreed statement of facts, says that the 
 company surrendered its property subject to redemption under 
 Statute 1862, chap. 156. The whole of the Commonwealth’s 
 right to be heard by the court in that case is based on the 
 fact, that the company had a right to redeem its property by 
 process of law, and that the company could have made, by 
 complying with the terms of the law in relation to mortgages 
 made by railroad companies, a mortgage which might have 
 affected the title of the Commonwealth to the property. The 
 court says : “ The second mortgage to the Commonwealth 
 gives it a direct interest in the property, and, not being made 
 expressly subject to any prior incumbrance, gives the right 
 to maintain and prove that the supposed conveyance to the 
 defendants was illegal and void. 
 
 “ The result to which the point decided leads is this : that 
 the defendants, having no title which they can maintain 
 against either of the mortgages to the Commonwealth, the 
 
26 
 
 plaintiffs have a plain, complete, and adequate remedy at law 
 for any interference with the mortgaged property, and the 
 bill must be dismissed.” 
 
 It will thus be seen that the court made the findings which 
 it did in this case, recognizing that while the Troy and Green- 
 field Railroad Company and its mortgagees had a full 
 and perfect right of redemption against the Commonwealth, 
 Smith and others, trustees, did not have such right, for the 
 reason that their mortgage was invalid, because it did not 
 comply with the statute relating to mortgages made by rail- 
 road companies, and therefore dismissed the bill. If it had 
 appeared to the court that the Commonwealth had a title in- 
 defeasible as against any process which the company, or its 
 grantees, could institute against it, the bill would have been 
 dismissed for that reason, and not because the Smith mortgage 
 was not made in compliance with the statutes. Is it true that 
 Massachusetts, when in court for one purpose, will assert as 
 true that which she will deny when in court for another and 
 different purpose, and take advantage of both positions ? 
 
 In 1876, when the work, for which the surrender was made, 
 was nearly completed, the company, hoping to secure a speedy 
 adjustment of all questions which might arise between itself 
 and the Commonwealth in relation to this property, without 
 resort to the court, presented a memorial to the Legislature, 
 asking that impartial referees might be selected to determine 
 what amount should be paid by the company for the redemp- 
 tion of its property, and the terms and conditions of such pay- 
 ments. When the hearing was had on this memorial, Hon. 
 Charles R. Train, then attorney-general, appeared for the 
 Commonwealth, and stated that no action was called for on its 
 part, for the reason that the company had a full and adequate 
 remedy for the redemption of its property under the provisions 
 of chapter 140 of the General Statutes, and no action was 
 taken by the Legislature. I know that it has been recently 
 reported that Mr. Train has stated that he did not take this 
 position before the committee, but it cannot be true that he 
 has made any such denial, and I venture the assertion that he 
 will not make any such denial, for the reason that the facts as 
 stated are true, and can be easily proved if denied. 
 
27 
 
 In 1877 the Joint Special Committee on the Hoosac Tunnel 
 and Troy and Greenfield Railroad, after a most full and 
 thorough examination, made a report which can be found in 
 Senate Document No. 170 of that year. On page 12 they say : 
 “ There is no question but what the Troy and Greenfield Rail- 
 road Company have, within ten years from July 1st, 1876, 
 the right to redeem the tunnel property, and the only question 
 that arises is as to how much they shall pay in order to so 
 redeem.” 
 
 In 1878 a resolve for an amendment to the Constitution, 
 prohibiting the alienation of the title of the Commonwealth to 
 the Troy and Greenfield Railroad and Hoosac Tunnel, was 
 passed by the House of Representatives, and, at the instance 
 of the company, was referred to the Judiciary Committee of 
 the Senate. The report of the committee is found in Senate 
 Document No. 222 of that year. After a full hearing, the 
 committee reported that the title to the Commonwealth was 
 simply that of a mortgagee in possession for the purpose of 
 foreclosure, and that the right of the company to redeem 
 would not expire till July 1st, 1886 ; that the committee would 
 not express any opinion as to the expediency of the resolve ; 
 but, if the same was to be adopted, it should be so amended 
 as to protect the rights of the company. The concluding para- 
 graph of the committee’s report in explanation of the amend- 
 ment it proposed is as follows : — 
 
 “ The amendment is designed to change the article in two 
 particulars, — -first, to make it more certain that the prohibi- 
 tion against the alienation of the title is to apply to the Com- 
 monwealth only, and is not to adhere to the title itself when 
 rightfully in the hands of any other owner through redemp- 
 tion from the mortgage, as it is feared might, in its present 
 form, be claimed ; and, secondly, as the surrender to the Com- 
 monwealth, as mortgagee, originally was by deed, in order to 
 remove any cloud over the title, it might be found necessary 
 for the Commonwealth, in case of redemption, to reconvey the 
 property by deed to the holder of the right in equity, and 
 should not therefore disable itself by a constitutional amend- 
 ment from so doing, or leave the matter in doubt whether it 
 
28 
 
 had done so or not, as might also be claimed under the pres- 
 ent form/’ 
 
 The Senate adopted the amendment, and then refused to 
 pass the resolve. 
 
 In 1878, the company applied to the Treasurer of the Com- 
 monwealth for an account of indebtedness due the Common- 
 wealth under its mortgages. The Treasurer declined to fix 
 the amount to be paid in redemption, and thereupon the 
 company filed its bill in equity in the Supreme Judicial Court 
 for the county of Suffolk, praying for an account, and tender- 
 ing payment of the amount that should be found due. The 
 Attorney- General appeared in behalf of the Commonwealth, 
 and pleaded in bar to the bill of the company, that the Com- 
 monwealth, one of the parties to the contract, was a sovereign, 
 and therefore could not be held to answer in its own court. 
 The court sustained the plea and dismissed the bill. We have 
 already seen that, in 1865, in the Smith case, the Common- 
 wealth appeared before the Supreme Judicial Court and put 
 on record, as part of its agreed statement of fact, that it was 
 in possession of this property as mortgagee, and that the Troy 
 and Greenfield Railroad Company had the right of redemp- 
 tion for the term of ten years from the time when the road 
 and tunnel should be completed and opened for use. When 
 the court decided that it had not jurisdiction to hear and de- 
 termine the case, thus virtually finding that the Commonwealth 
 itself, its Attorneys-General, the distinguished lawyers 
 whose opinions it had taken, and the court itself, misled by 
 the agreed statement of fact or law, made in the Smith case, 
 above referred to, had all been under a misapprehension in 
 relation to the jurisdiction of the court, the company supposed 
 that there could be no doubt that the Legislature, when re- 
 quested to do so, would hasten to confer that jurisdiction, and 
 thus save the Commonwealth from a stain on its honor which 
 must otherwise become indelible. 
 
 In January, 1880, the company presented to the Legislature 
 its petition in respectful terms, praying “ that jurisdiction 
 might be conferred, by law, upon the Supreme Judicial Court, 
 under proper proceedings in equity, to hear and determine its 
 right to make the redemption reserved in its mortgage and 
 
29 
 
 by the act of 1862. The petiion was referred to the Judi- 
 ciary Committee of the Senate. The company appeared by its 
 counsel, and made to the committee a full statement of the 
 facts pertaining to the case, and the reasons for the granting 
 of the prayer of the company. The company asked that 
 such power, and only such power, to hear and determine the 
 case should be given to the court as would place both parties 
 in precisely the same position they would have been in if the 
 court had the jurisdiction which the Commonwealth, all its 
 law officers and even the court itself, supposed it had, up to 
 the time when the bill for redemption was filed, and the ques- 
 tion of jurisdiction specially raised by the plea of the Attorney- 
 General. It simply said, Give us just what we are entitled to 
 by right, that which you cannot, without a breach of faith 
 withhold. We ask for no new or additional rights, only for a 
 remedy which shall make good to us the rights we already 
 have. 
 
 The Attorney-General appeared on behalf of the Com- 
 monwealth, and opposed the granting of the jurisdiction as 
 prayed for, claiming that the Legislature should hold the 
 whole subject-matter of the relations of the Troy and Green- 
 field Railroad Company and the Commonwealth in its own 
 control, and also that the State had a right, in case it did 
 grant a remedy, to impose conditions not found in the terms of 
 the contract. The committee, on consideration, admitted that 
 the company had the right of redemption, and was entitled to 
 a remedy to enable it to enforce that right. When the com- 
 mittee had reached that point, it hardly seemed possible that 
 there could be any further question between the company and 
 the committee. If the company had a right to redeem, it 
 must result from something already in existence, and not be 
 dependent upon something which was to be created or brought 
 into existence as a part of, or in connection with, the act 
 which furnishes the remedy for the enforcement of the exist- 
 ing right. The first section of the bill which the committee 
 prepared and reported to the Senate is as follows : — 
 
 “ Section 1 . The Supreme Judicial Court in the county of 
 Suffolk is hereby authorized, upon the petition of the Troy 
 
30 
 
 and Greenfield Railroad Company therefor, to be presented 
 to said court on or before the first day of July, in the year 
 eighteen hundred and eighty-six, to ascertain and determine, 
 in the usual manner of proceedings in equity, the amount of 
 principal and interest of bonds or money furnished and 
 advanced to said railroad company, for and concerning the 
 construction of the railroad of said company, including the 
 Hoosac Tunnel and the purchase of the Southern Vermont 
 Railroad ; and also the amount, including interest thereon, 
 actually expended in good faith for the purpose of construct- 
 ing, completing, and making available for use the line of 
 railroad, including the Hoosac Tunnel, as the same is con- 
 structed and made from its eastern terminus in the town of 
 Greenfield, to the line of the State of Vermont; and for 
 maintenance of said railroads, since the surrender which was 
 made to the Commonwealth by said railroad company, under 
 the provisions of the act passed on the twenty-eighth day of 
 April, in the year eighteen hundred and sixty-two, entitled 
 ‘An act providing for the more speedy completion of the 
 Troy and Greenfield Railroad and Hoosac Tunnel.’ If the 
 prices paid by the Commonwealth for any part of the work 
 were extravagant or unreasonable, or if the amount expended 
 was increased by any unreasonable or improper management 
 on the part of the Commonwealth, said amount shall be 
 diminished by so much as is necessary, to make the cost what 
 it should have been had the work been managed reasonably 
 and properly. From said amount there shall be deducted the 
 net income received by the Commonwealth from said railroad f 
 above the proper expenditure for maintaining and managing 
 it.” 
 
 This bill is ably and ingeniously drawn, but I suggest that 
 its title is wrong. It should be entitled An act taking away 
 from the company, under pretext of providing it a remedy, 
 its right of redemption under existing contracts. While 
 recognizing the right of the Troy and Greenfield Railroad 
 Company to redeem its property, and purporting to give the 
 Supreme Judicial Court in the county of Suffolk jurisdiction 
 to ascertain and determine, in the usual manner of proceedings 
 
31 
 
 in equity, the sum which the company shall pay for such 
 redemption, it compels the court to entirely disregard the 
 terms of the mortgage, and the other contracts between the 
 parties, on which the right of redemption rests, and obliges 
 the court to ascertain the amount which the company shall 
 pay, by a rule which the Commonwealth, in the exercise of 
 its sovereign power, now dictates to the court, having no regard 
 to the rights of the company or the agreements, promises, or 
 obligations on the part of the Commonwealth heretofore made. 
 It says to the court, Find that the Commonwealth has not 
 acted in good faith, that it has been extravagant, unreasona- 
 ble, or guilty of improper management, or else find that the 
 full amount expended and claimed by the Commonwealth 
 shall be paid by the company. 
 
 Should the company present to the court its petition for the 
 redemption of its property, relying on the jurisdiction con- 
 ferred on the court by this bill, and offer in evidence the 
 mortgages and other contracts now existing between the parties 
 on which the company’s right of redemption rests, the court 
 would be obliged to say to the company, We are bound by the 
 provisions of the act which confers on us jurisdiction in this 
 case. We cannot consider your rights under your contracts. 
 We cannot decree a discharge of your mortgages on the pay- 
 ment to the Commonwealth of the sum of money which your 
 mortgages and the terms of your contract for the surrender of 
 your property call for. The Commonwealth, in the exercise 
 of its sovereign power, adopting the proposed action of Vir- 
 ginia, in relation to her indebtedness, has made a “ readjust- 
 ment ” of your case, and our jurisdiction is limited to the 
 case as thus readjusted, and that entirely excludes the con- 
 sideration by us of your contracts, or the obligations of the 
 Commonwealth resulting from the same. 
 
 This bill was referred to the present Legislature. 
 
 Gentlemen, you will not consent that Massachusetts shall 
 place herself in this position till you have first satisfied 
 yourselves that she can do so without imitating the example 
 of Mississippi, Tennessee, Virginia, and Minnesota in relation 
 to their pecuniary obligations. By what process of reasoning 
 
32 
 
 you can thus be satisfied, I leave to the Hon. Attorney-General 
 to suggest. 
 
 The question between the parties is not how much money 
 has the Commonwealth spent judiciously, economically, and 
 in good faith in completing the Troy and Greenfield Railroad 
 and Hoosac Tunnel. If this were the question, the court might 
 perhaps find, when it considers the object and purposes which 
 the Commonwealth had in view, namely, to complete a great 
 public work of which the State might forever be proud, and 
 to open a new communication with the West, the benefits of 
 which would be forever felt by the whole Commonwealth, that 
 the expenditure of $18,000,000 may have been judiciously, 
 economically, and in good faith made ; and that the central 
 shaft, the Deerfield dam, and the double-track tunnel on a 
 single-track railroad, were experiments which might properly 
 be tried in the prosecution of such a magnificent enterprise by 
 a rich and powerful Commonwealth. 
 
 The question which the court must be authorized to decide, if 
 Massachusetts maintains good faith with the company, is, how 
 much money has the Commonwealth spent in the completion 
 of this road and tunnel, which it has the right, by the terms 
 of its contract, to claim from the company as a condition for 
 the redemption of its property ? 
 
 When that jurisdiction, without limitation or qualification, 
 shall have been conferred on the court, then both parties will 
 be in the same position in which they supposed they were 
 when the surrender was made ; till that is done, the best that 
 can be said for the position of Massachusetts is, that she holds 
 her good faith in abeyance. All that we ask is that the court 
 shall be authorized to give the same construction to this con- 
 tract that it would give, if the same contract had been made 
 between parties subject in all respects to the rules of law and 
 equity pertaining to the redemption of mortgages and to other 
 contracts. 
 
 The Legislature is again asked to give the court this juris- 
 diction. If it refuses, the company will lose its property. 
 What the Commonwealth will lose is a question which you 
 will undoubtedly fully consider before final action. 
 
33 
 
 AN ACT 
 
 Providing for the more speedy completion of the Troy and Greenfield 
 Railroad and Hoosac Tunnel. 
 
 Be it enacted by the Senate and House of Representatives, in 
 General Court assembled, and by the authority of the same, as 
 follows: — Section 1 . The Governor with the advice of the 
 Council is hereby authorized and directed to appoint three 
 able, impartial, and skillful commissioners to investigate the 
 subject of finishing the Troy and Greenfield Railroad, and of 
 tunneling the Hoosac Mountain, whose duty it shall be to 
 report to the Governor and Council what in their judgment 
 will be the most economical, practicable, and advantageous 
 method of completing said road and tunnel, the estimate cost 
 of fitting the same for use, the time within which the tunnel 
 can be completed, and what contracts can be effected, and 
 with what parties for completing said tunnel and road, and 
 the probable cost of the same, the probable pecuniary value 
 of the road and tunnel when completed, and the sources and 
 amount of traffic and income, and all other facts in their 
 opinion useful to assist the Governor and Council in determin- 
 ing the best method of securing a continuous railroad com- 
 munication between Troy and Greenfield. 
 
 Sec. 2. The Troy and Greenfield Railroad Company is 
 hereby authorized to surrender to the State the property now 
 mortgaged ; but the right of redemption shall not be barred 
 until ten years have elapsed after said road and tunnel are 
 completed, and the same open for use. The said commission- 
 ers shall immediately, in the name of the Commonwealth, 
 take complete possession under the mortgages to the Common- 
 wealth, given by the Troy and Greenfield Railroad Company 
 of all property, rights, and interests intended to be conveyed 
 by said mortgages, or either of them, and then shall, without 
 unnecessary delay, cause the said railroad to be completed 
 and put into running order, and supplied with suitable depots, 
 turn-tables, and other usual and necessary appliances, for the 
 reception of freight and passenger cars, from the eastern 
 terminus of the Troy and Greenfield Railroad to the Hoosac 
 Tunnel. 
 
34 
 
 Sec. 3. Said commissioners shall audit and allow all just 
 claims for labor, service, materials, land-damages, incurred 
 after April 6th, 1860, and before July 12th, 1861, in carrying 
 on the work of constructing the Troy and Greenfield Railroad 
 and Hoosac tunnel, and may procure the release of all attach- 
 ments, and discharge all liens on said materials. The ac- 
 counts thus audited shall be transmitted to the Governor, and 
 if approved by the Governor and Council, the Governor is 
 hereby directed to draw his warrant upon the Treasurer, in 
 favor of the claimants, for the amounts thus allowed, to an 
 amount not exceeding $175,000. 
 
 Sec. 4. Said commissioners are hereby authorized, with con- 
 sent of the Governor and Council, to use or run that portion 
 of the road east of the Hoosac Mountain, or lease the same to 
 the “ Vermont and Massachusetts/’ the “ Fitchburg,” the 
 Troy and Boston Railroad Company, or either of them, until 
 the completion of the said tunnel. 
 
 Sec. 5. Said commissioners shall have authority, with the 
 approval of the Governor and council, to continue the work 
 on the Hoosac Tunnel, by contract or otherwise, to expedite 
 the completion of said tunnel. 
 
 Sec. 6. All the net earnings and income derived from said 
 railroad, including the tunnel, shall be held by the Common- 
 wealth in trust : First, for the payment and reimbursement 
 of the interest on all loans, advancements, and disbursements 
 of the Commonwealth on account of said railroad or tunnel. 
 Second, for the payment and reimbursement to all parties 
 having a legal right thereto. 
 
 Sec. 7. The Governor is hereby authorized to draw his war- 
 rant on the Treasurer of the Commonwealth for such sums, as 
 may be required from time to time by the commissioners for 
 the purpose of carrying out the provisions of this act, and the 
 amount of the same is hereby appropriated therefor ; and the 
 Treasurer of the Commonwealth is hereby authorized to issue 
 scrip, or certificates of debt, in the name and in behalf of the 
 Commonwealth, to an extent sufficient to secure the required 
 funds, which scrip shall bear such rate of interest as is allowed, 
 at the time, on State scrip issued for other purposes, and shall 
 
35 
 
 be redeemable at the end of thirty years from the date 
 thereof ; and he shall sell or otherwise use the same at his 
 discretion, to procure the sum necessary to meet the payments 
 in this act provided: Provided , That all expenditures and 
 advances made under and by virtue of this act shall be on 
 account, and form part, of the two millions of dollars author- 
 ized to be loaned in State scrip to the Troy and Greenfield 
 Railroad Company by chapter two hundred and twenty-six of 
 the acts of eighteen hundred and fifty-four; and said expendi- 
 tures and advances, together with all sums hitherto advanced 
 to said company, excepting the sums advanced on account of 
 the “Southern Vermont Railroad,” shall not exceed in 
 amount the said two millions of dollars. Such changes may 
 be made in the location and grades of the road, as may be 
 necessary to improve the same ; and no lease shall be made of 
 the portion of the road east of the tunnel for a term exceed- 
 ing six years ; nor shall such portion be constructed without 
 the approval of the Governor and Council. 
 
 Sec. 8 . All acts and parts of acts inconsistent herewith 
 are hereby repealed. 
 
 Sec. 9. This act shall take effect upon its passage. 
 
 Approved April 28th, 1862. 
 

 
 
 
 
 
 
 . 
 
 
 
 
 
 
 
 
 
ATTORNEY-GENERAL MARSTON’S ARGUMENT. 
 
 Mr. Chairman and Gentlemen : 
 
 At present I think I may confine myself to what may be 
 regarded as the general grounds which I assume here. I am 
 not prepared, of course, to go at once into all the matters of 
 detail suggested by the learned and exhaustive argument 
 which has just been made ; but, with regard to the general 
 proposition, I can state the position of the Commonwealth, 
 perhaps, so that the Committee can understand what is claimed. 
 The argument which is made for the petitioners is based upon 
 the proposition, in the main, that the subsisting contract be- 
 tween the Commonwealth and the Troy and Greenfield Rail- 
 road Company is to be found, in its substance, in the act of 
 1862, which has been read in part, and which has been re- 
 ferred to in other respects. I claim that the relations of the 
 parties are not to be found in the act of 1862, except as that 
 furnishes the power to the Troy and Greenfield Railroad Com- 
 pany to do what it did, in the way of surrender under that 
 act, and provides for agents of the Commonwealth to transact 
 and do what was done by the Commonwealth in receiving the 
 surrender under that act ; but that we must resort to the sev- 
 eral mortgages which have been made for the purpose of in- 
 quiring what the attitude of one party is towards the other in 
 respect to this property that is now called the Troy and 
 Greenfield Railroad and Hoosac Tunnel ; because, whatever 
 modifications the act of 1862 may have made in the preceding 
 contracts, in the bonds and mortgages, at the time of the pass- 
 age of that act, there was another mortgage which was coin- 
 cident with that act, and that mortgage expresses what was 
 understood to be the relation of the parties after the passage 
 of that act of 1862. We need not resort to the act, but we 
 resort to the mortgages, for ascertaining the rights which are 
 here asserted. 
 
 (37) 
 
38 
 
 That will lead us to inquire what it was that the Troy and 
 Greenfield Railroad Company mortgaged, and what were the 
 conditions of the mortgages, because the Troy and Greenfield 
 Railroad Company comes here to-day and asks to redeem the 
 Hoosac Tunnel, which did not exist when it made its mort- 
 gage — which it never had built — comes and asks to take the 
 very property which has been created, and the rights and 
 beneficial conditions of things which have been created since 
 the mortgages were made, and which are not included within 
 the terms of any one of the mortgages which the railroad 
 company made to the Commonwealth. 
 
 We shall have to inquire, then, what it was that was mort- 
 gaged, and also what were the conditions of the mortgages. 
 Now, at the bottom and basis of these mortgage transactions 
 lies a bond which is dated the 28th of July, 1855, and the 
 condition of that bond is, in brief, after citing the act of 1854 : 
 — “ If the said Troy and Greenfield Railroad Company shall 
 comply with the requisitions of this act, and shall faithfully 
 expend the proceeds of said scrip in the construction of their 
 road, as provided in said act, and shall indemnify and save 
 harmless the Commonwealth from all loss or inconvenience on 
 account of said scrip or certificates ; and if said corporation 
 shall and will pay the principal sum of said scrip or certificates 
 which may be delivered to their treasurer punctually when the 
 same shall become due, or such part thereof as the sinking 
 fund may be insufficient to pay and the interest thereon semi- 
 annually, as the same shall fall due; then and on the above 
 conditions the foregoing obligation shall be void,” &c.; and I 
 have yet to be informed that the Troy and Greenfield Rail- 
 road Company have done these things, which it obliged itself 
 to do. 
 
 F ollowing the method more in vogue in other States than 
 this, in such transactions, is a mortgage conditioned for the 
 performance of all the conditions of this bond — that is, the 
 transaction consists of a bond and mortgage, rather than a 
 simple mortgage deed containing the whole transaction. 
 
 Afterwards, there was a second mortgage, and that pro- 
 vides, as its conditions, that “If the Troy and Greenfield 
 
39 
 
 Railroad shall well and truly do and perform all and every 
 the obligations, duties, covenants, and agreements by them 
 heretofore undertaken, covenanted, and agreed to be done 
 and performed, in the several bonds, mortgages, and convey- 
 ances heretofore made and delivered to said Commonwealth, 
 and shall also well and truly do, perform, and observe all the 
 terms, conditions, and requirements of the several acts of the 
 General Court, heretofore.” 
 
 I read this to show that the condition of that second mort- 
 gage was the performance of all that had gone before, and 
 now I come to the third mortgage, which was made on the 
 25th of April, 1862, following the act of 1862, which the 
 learned counsel cites as forming the present contract between 
 the Troy and Greenfield Railroad Company and the Com- 
 monwealth, and that mortgage made immediately after that 
 provides this. 
 
 Mr. Gooch: — Are you not mistaken in your dates? 
 
 Mr. Marston : — It may be. Am I ? 
 
 Mr. Gooch : — The date of the act on which we rely is 
 April 29th, 1862. 
 
 Mr. Marston: — Well, sir, I am looking at this mortgage 
 to see what it was. In some of the copies it is printed April 
 25th, but I now think it must have been March 25th. I am 
 claiming this. If I am wrong in saying that it was a subse- 
 quent date, I think I am right in saying that it was simulta- 
 neous in its execution, because it is dated March 25th, and it 
 is acknowledged as late as the 11th of April, and it is re- 
 corded the 28th of April in one place, the 30th of April in 
 another, the 2d of May in another, the 12th of May in 
 another, and the 24th of May in another, so that while the 
 act was passing along, and at the time when the act passed, 
 this mortgage was in the hands of the parties, and was pass- 
 ing through the various stages of execution, acknowledgment, 
 and record, and must be taken to be part of the same transac- 
 tion. 
 
 Well, the claim here, Mr. Chairman and gentlemen, is to 
 redeem under certain mortgages, and not under the act of 
 1862. We go back to the mortgage, which is the formal 
 
40 
 
 transaction between the parties, and see that it provides — 
 every one that is drawn provides — that the railroad company 
 shall well and truly do and perform all and every obligation, 
 condition, covenant, and agreement by them agreed to be per- 
 formed in each mortgage, and in the underlying bond of July, 
 1855, so that the last mortgage goes back to the first, and to 
 the bond which underlies the first, and the provision all 
 along is, that the Troy and Greenfield Railroad Company 
 shall do and perform everything that it has agreed to do and 
 perform in the bond and in this whole series of mortgages. 
 We are here to consider what ought to be done in respect to 
 the right which they claim to have to redeem under these 
 mortgages, and not by force of something which they can de- 
 rive under an independent contract from the language or the 
 terms of the act of 1862. 
 
 So that before the Troy and Greenfield Railroad Company 
 can have the right to redeem, upon any terms of payment 
 under these mortgages, it must come here and show that it has 
 done and performed everything that it undertook to do and 
 perform. For there are many things in the course of this 
 construction of the tunnel that should have been done by the 
 petitioner which can not now be done, and for the not doing 
 of which money might be compensation in damages, if we 
 were engaged in inquiring into that question ; but the pay- 
 ment of money as damages does not fulfill the requirement of 
 the bond and mortgage. Till these things which were agreed 
 to be done are shown to have been done when they might have 
 been done and ought to have been done, the petitioner has not 
 shown here a right to redeem anything upon any terms. 
 
 We next look and see what it was that the Troy and Green- 
 field Railroad Company mortgaged to the Commonwealth, and 
 the language is substantially the same in all these mortgages, 
 so I read from the last one, as being quite as expressive and 
 explicit as the others, that the Troy and Greenfield Company 
 mortgaged to the Commonwealth “ all the franchises and 
 property whatsoever, real, personal, and mixed, of said Troy 
 and Greenfield Railroad Company.” That is what, if any- 
 thing, it has the right to redeem. 
 
41 
 
 The great error which underlies this application is, in my 
 judgment, that this railroad company comes, after many years 
 of silence, and asks, not only to redeem the property which it 
 mortgaged to the Commonwealth, but that we shall hand over 
 to it this completed road and tunnel, with all its buildings and 
 appliances, upon the payment of $2,000,000. I say $2,000,000, 
 because I speak of that as the round sum. Of course I mean 
 with whatever interest should be attached to it. 
 
 That is to say, after having mortgaged certain small things 
 to the Commonwealth in 1862, which, in the course of time, 
 and by the action of the Commonwealth, and the expendi- 
 ture of large sums of money, have grown into certain great 
 things, — because in 1862 it mortgaged to the Commonwealth 
 certain incomplete and useless thiugs, which have since then 
 grown into certain complete and valuable things, that now 
 upon payment of $2,000,000 it is entitled to take and have 
 the complete and valuable thing in the place of the imperfect 
 thing which it mortgaged at that time. Now that I contro- 
 vert. If it were possible, Mr. Chairman and gentlemen, to 
 find to-day just what they mortgaged, then we should have a 
 means of seeing just what they were entitled to redeem ; but 
 if, through the course of events, the necessary course and cur- 
 rent and logic of these events, they have come to such a place 
 that those things can not be separated and distinguished, — 
 why, then they are not entitled to an absolute right to redeem 
 anything, but may have rights of compensation of an entirely 
 different character. 
 
 The learned counsel who has argued this matter for the 
 petitioners thus far, claims that this is an ordinary transaction 
 of mortgage between A and B, where we should legislate and 
 act exactly as if it was such a transaction ; but you know, 
 Mr. Chairman and gentlemen, that there is very slight simi- 
 larity between a simple mortgage, between two men, of an 
 ordinary piece of property, and this complicated matter that 
 we have before us. Nothing has ever existed before like it ; 
 nothing that approaches very near to it. Still some principles 
 are applicable to it, as to mortgages between individuals, and 
 assist us in gettting at the real ground. 
 
42 
 
 These gentlemen came in the year 1876, before this subject 
 had acquired the impulse and impetus that it now has, and 
 asked that the legislature would authorize the selection and 
 employment of impartial referees to determine what amount 
 should be paid by the company for the redemption of its prop- 
 erty. Now, that was a sensible proposition. It approached, 
 I think, the requirements of this case. Let us illustrate, as 
 the learned counsel has referred to the ordinary condition of 
 mortgages between parties, what the state of things would be 
 between two men. I have given my brother Gooch my note 
 some years ago, and it is outlawed, and he can not bring suit 
 on it, and he comes to me and says, “ I want you should give 
 me a writing which will authorize me to sue you.” I say, 
 “ No, sir ; various things have transpired between you and me 
 since that note was given ; let us sit down together and examine 
 the matter, and let us see what is just and right. Whatever 
 is right, I will do.” “ But,” he says, “ didn’t you mean when 
 you gave me that note to pay me ?” “ Yes.” “ Didn’t you mean 
 that I might sue you upon it at any time in court?” “ Yes.” 
 “ Well, then,” he says, “give me the right to sue you now — I 
 won’t take anything else.” I say, “ No ; let us sit down and con- 
 fer about the matter. I think you owe me certain things which 
 should be arranged, and, if we can not agree about it, let us call 
 in some referee (as they said in 1876), or have some tribunal 
 to arrange a settlement.” He says, “ No, give me the 
 right to sue you in court.” “ But,” I say, “ my rights may 
 have become imperiled since the note was given ; some wit- 
 nesses essential to the establishment of my rights have gone 
 away or have died ; there have been independent transactions 
 between you and me.” Therefore when he says, “ I don’t care, 
 give me the right to sue you, I won’t take anything else,” I 
 say, “ Very well, I refuse to grant you that right.” “ Then,” 
 he says, “ you mean to repudiate your note ; you mean to vio- 
 late the conditions of it, and to forfeit your honor and integ- 
 rity.” “ Well,” I say, “ you may say so ; I don’t think so. 
 I am ready to agree to sit down and have the matter settled 
 right, between us.” But he says, “No, I will not have that, 
 you must give me a right authorizing me to sue you in 
 
43 
 
 court ; ” and I say, “ Perhaps the delay incident to litigation 
 may ruin or impair some of my rights as compared with your 
 rights ; and since you insist upon the granting of a right to go 
 to court, I insist on my right and stand by the statute of limi- 
 tations; I stand where I am.” And so the State stands. 
 They come here and say, “We want you to hand us over this 
 tunnel property on payment of $2,000,000 and interest. 
 We want you to let us sue you for that.” This is what they 
 ask. We answer, “No, there is no need of that, let us sit 
 down together, and talk the matter oyer, between yourselves 
 on the one hand, and the Commonwealth on the other, and 
 see what is right.” They say, “ No, we must have the right 
 to sue you in the courts, anyhow, and we will not take anything 
 else.” W e reply that that may be the means of great loss to the 
 Commonwealth. They say, “ We do not care for that, we want 
 the right to sue you.” Then we answer, “ If you do not choose 
 to put yourselves in such a position that while your rights are 
 secured those of the Commonwealth are not impaired, then we 
 will stand just where we are; and we do not much care 
 whether some Western States are placarded with handbills 
 representing that Massachusetts has repudiated her faith, any 
 more than we cared about the cabalistic figures 329, with 
 which the country was so full not long ago. We know we are 
 ready to do justice, but we exact justice also from you.” That 
 I understand to be the position of the Commonwealth, as it is 
 stated by his Excellency the Governor in his communication 
 to the Legislature. We have gone on here and built this rail- 
 road and excavated this tunnel, which, against all the wisdom 
 of the engineers of that day, has cost five times as much or 
 more, than it was then expected that it would cost. W e have 
 gone on and built a tunnel sufficient for two tracks, and every- 
 thing up there is imploring the Legislature to lay two tracks, 
 and the business on that line can not be done without two 
 tracks much longer, and yet our friends come here and talk 
 about handing the tunnel over to them, with this double track ; 
 because if they take anything they must take all. If we are 
 out and they are in, they are in of all. They say, “We can 
 take this road and tunnel with all the appliances, and we are 
 
44 
 
 only to pay what was talked of when this mortgage was 
 made.” The position of the Commonwealth is, that, consider- 
 ing all that has taken place since then, this adjustment be- 
 tween them and the Commonwealth should be made in a very 
 different manner. There has been a call for the expenditure 
 of money which to-day stands upon the books at twenty mil- 
 lions of dollars, and they want to take that property upon the 
 payment of $2,000,000 and interest. 
 
 What is this Troy and Greenfield Railroad Company? We 
 only know of it when it comes clamoring at the State House 
 for benefits. I do not know that it has a corporate existence 
 to-day. It has — as I said last year, and it was not contro- 
 verted, and therefore I repeat it — to my knowledge not a 
 dollar in the world, and can not redeem this property itself, if 
 it was to be redeemed upon the payment of $500,000, unless 
 it should go somewhere and mortgage the road to somebody 
 that may be represented by counsel inside or outside of the 
 Commonwealth — I don’t know which — and make another 
 mortgage, which it never can redeem. So this road, in order 
 to raise $2,000,000, is handed over to some mortgagee in New 
 York, or Detroit, or Philadelphia, or elsewhere, who is sure to 
 take possession of it, and reap the benefits which will result 
 from that great line of traffic. 
 
 Now, then, it is suggested in the argument which has been 
 presented here, that this road and tunnel line will earn only six 
 per cent, upon a certain valuation which has been stated, and, 
 therefore, that is as much as this mortgagor should pay for it. 
 
 To that it is answered, that the road has not yet begun to 
 show its earning power. It was not until last September that 
 the Fitchburg Railroad Company had a contract reaching far 
 enough into the future — the seven years’ contract made under 
 authority of the last Legislature — that would justify that road 
 in putting on sufficient equipment to proceed and show what 
 this line could do ; the earning power of that line is only begin- 
 ning to be felt and manifested, and it can not be adequately 
 shown until the completion of a double track. 
 
 Here is all this great business between the East and the 
 West; this vigorous pulsation of inland commerce between 
 
45 
 
 Boston and Chicago, St. Louis and San Francisco, provided for 
 or to be provided for by the Commonwealth ; yet these gentle- 
 men come, modestly saying that the road will not earn more 
 than the interest upon a couple of million of dollars. There- 
 fore, they say, that is as much as they ought to pay, and that 
 they ought to have it for that, and the other $18,000,000 that 
 has been expended is to rest as a loss to the treasury of Mas- 
 sachusetts, to the detriment of the people of Massachusetts — a 
 special detriment, Mr. Chairman, to the men in your county 
 and upon the shores of the Old Colony, who, by the construc- 
 tion of these Western lines, have lost their carrying trade by 
 water. They have paid in their taxes for this $18,000,000. 
 Whatsoever benefit may come hereafter they have a right to 
 share in ; but it is a new suggestion, of a sort of original jus- 
 tice, that the Troy and Greenfield Railroad Company should 
 have this property for the capitalization of what its net earnings 
 will be, while the loss of $18,000,000, more or less, falls upon 
 the people of the Commonwealth. 
 
 Now, then, the claim which I make here for the State is, that 
 if any bill is passed, is reported, it should be substantially like 
 that reported last year, which is in substantial accord with the 
 view which his Excellency the Governor expresses in his mes- 
 sage to the Legislature ; that gives to the Troy and Greenfield 
 Railroad Company all that it ought to have, and, at the same 
 time, protects the Commonwealth and its treasury against the 
 great injustice of which I spoke just now. That is stating 
 no new view of the matter. My predecessor in office, in an 
 opinion which he furnished in February, 1874, discussed this 
 subject briefly; but the concluding sentence of his opinion 
 summarizes the whole better, in my opinion, than it has ever 
 been stated elsewhere ; that is to say, in less words and more 
 concisely. He says, “ Under these circumstances, upon prin- 
 ciple and authority, I am of opinion that the Troy and Green- 
 field Railroad Company shall, upon the completion of this 
 road and tunnel, establish a right to redeem, such redemption 
 can only take place upon the repayment to the Common- 
 wealth of all sums necessarily and properly expended in com- 
 pleting, preserving, and making productive the property.” 
 
46 
 
 Well, I can understand what gentlemen may say in reply to 
 that suggestion ; that if that is the law in this case, then why 
 do you hesitate to go to the court and have this redemption 
 take place upon principles of law in conformity to your position ? 
 I answer to that, in the first place, what I said a little while 
 ago, that when they come to the State of Massachusetts, this 
 sovereign State, for whose honor I certainly am as solicitous as 
 any of the gentlemen here, and want an adjustment of this mat- 
 ter, they should be treated, Mr. Chairman, just as you would 
 treat them as a man of business when they come and say, “ Sir, 
 I thought I had a right to sue you, and I want you to 
 give me the authority to sue you now in the courts.” 
 Your reply would be, as a man of business, and as an 
 honest and just man, “ Whatever matters of difference there 
 are between you and me, let us sit down here and adjust. I 
 want to do you justice, and I want you to do me justice ; but, 
 as for allowing you to sue me in the courts, I do not think it 
 is quite right that I should grant you that privilege, if my 
 rights are to be imperiled thereby, and when a conference 
 might result in the establishment of our mutual rights.” So, 
 then, when they come here and say to you, representing here 
 the Commonwealth, that they desire to have an act passed that 
 will enable them to sue the Commonwealth in the courts, the 
 proper reply is, “ We concede that upon some terms you are 
 entitled to redeem some property, if that redemption is possi- 
 ble. If this property is in such a condition now that you 
 can redeem it and have what you ought to have, and no 
 more, then we will arrange that ; but if, on the other hand, 
 this thing which in 1862, and twice before, was mortgaged as 
 a franchise, and nothing but a franchise, and is now a railroad 
 and a tunnel, if you were to come and take that railroad and 
 tunnel, which has cost the Commonwealth a very large amount 
 of money, you must sit down with the Commonwealth and 
 adjust the terms of settlement. You must sit down with the 
 Commonwealth and see what is right, not only to you, but to 
 the State. So we will adjust here what ought to be adjusted 
 here, and leave to some other method of settlement that which 
 can not be adjusted here, and if you show you can pay for what 
 
47 
 
 you ought to have, then you shall have what belongs to you ; ” 
 but when you say, “We want the right to sue you in the courts, 
 and will take nothing else,” we say you impugn the honor and 
 honesty of Massachusetts, and it is nothing less. We say, 
 you, gentlemen of the Committee say, we are Massachusetts. 
 This matter is here in the hands of Massachusetts, and 
 until the petitioner proposes to adjust things upon a proper 
 and fair basis which secures and maintains its rights upon the 
 one hand, and preserves and protects the interests of the people 
 of Massachusetts upon the other hand, we propose to hold to 
 the advantage which we have. You shall not sue the Com- 
 monwealth until we have tried, in a proper way, to see if we 
 can not come to a settlement of this whole matter, and when 
 we have offered you what you ought to have upon the pay- 
 ment of a just amount, and you refuse to accept it, then 
 the honor of the Commonwealth is maintained, and you 
 have no reason to complain or find fault with us. 
 
 Now, as to what has been said upon the other side with 
 regard to the capitalization of the net earnings as a basis of 
 settlement, I may be permitted to say a word, because I 
 assume that a principle of law applicable to this matter might 
 be stated in this way: That if an imperfect, incomplete 
 thing is mortgaged, which it is contemplated by both parties 
 shall be perfected and made complete, and the mortgagee goes 
 on and perfects and completes that thing according to the 
 original intention, so that a valuable thing is made out of the 
 imperfect and valueless thing, when the mortgagor comes to 
 redeem, he should pay not only the mortgage debt advanced, 
 but what has been expended to make valuable the thing that 
 was mortgaged, according to the original plan ; and if in the 
 construction of that thing, which, as in this case, takes years 
 of time, and draws to its assistance the enlightenment of new 
 engineering attainment, it is thought best to vary that thing 
 from what was originally contemplated, but according to the 
 general scope of what was proposed, and the party to be 
 affected by it stands by all the time with full knowledge, and 
 does not object, then, when he comes in to redeem, he must not 
 only pay the mortgage-money advanced, but what this better 
 
48 
 
 thing has cost for the general purposes which were in view 
 when the thing was projected, as in this case. Assume that 
 all that was thought to be necessary in the beginning was a 
 little tunnel, fourteen feet wide, and say so many feet high — 
 a little avenue into the treasury of Massachusetts — and that 
 afterwards it was thought wise, as every railroad man knows 
 was wise, as the president of the Troy and Greenfield Railroad 
 Company must admit, if he would speak to-day, was wise, that 
 if a tunnel was built at all, it should be adequate for a double 
 track, and this Troy and Greenfield Railroad Company stood 
 by all the time, knowing all that was done, and did not open 
 its lips in objection, then it may be held to have acquiesced in 
 that method of construction, and must pay what that better 
 tunnel cost, with interest. And I assert that there never was 
 any objection or protest, but constant and complete acqui- 
 escence. 
 
 Some reference was made to the fact that Colonel Alvah 
 Crocker, who was the president of the Troy and Greenfield 
 Railroad Company, was made Commissioner of the State, to 
 show that the very man who was there projecting and pushing 
 forward and energizing this work — was the president of this 
 mortgagor company. 
 
 Mr. Gooch: — We didn’t make him Commissioner. 
 
 Mr. Marston: — No, sir; I do not speak of that. The 
 learned counsel looks at a different phase of the matter en- 
 tirely. It was said that we made him Commissioner because 
 he was interested in the Fitchburg Railroad ; because he was 
 interested in the success of this line. We made him Commis- 
 sioner for the very reason that the Troy and Greenfield Rail- 
 road Company made him its president ; because they wanted 
 the power of the Fitchburg Railroad acting in conjunction 
 with them, to assist them in this enterprise. 
 
 Mr. Gooch : — We father him as far as we used him ; you 
 must do the same. 
 
 Mr. Marston: — Yes, sir; we do. We have no occasion 
 to blush for anything that Colonel Crocker did. 
 
 The Chairman: — “Wait a moment, gentlemen. I do not 
 think this taking time is proper. You will have two chances.” 
 
49 
 
 Mr. Gooch : — You will certainly pardon me when it is 
 charged that I have made an imputation on a gentleman so 
 well known as Colonel Crocker, and who was my personal 
 friend — while I deny that I made any imputation— 
 
 The Chairman : — The Committee do not understand that 
 you made any such imputation. 
 
 Mr. Gooch : — Then I have nothing more to say. 
 
 Mr. Marston : — Then there is no cause of my saying any- 
 thing in vindication of Colonel Crocker’s memory. He was 
 faithful to all his trusts ; he was as faithful to the Troy and 
 Greenfield Railroad Company as to any other trust he had in 
 hand. 
 
 The proposition here is, as I stated, that when the Troy and 
 Greenfield Railroad comes and says, “We want to sue the 
 Commonwealth,” the answer may properly be just what you 
 or I would say to a man who came to us, and wanted us to 
 put him in a position to sue either one of us. 
 
 “ These are matters between us which we can adjust our- 
 selves,” you would say ; “ until I see my interests are safe as 
 well as yours, I do not propose to concede what you ask, and 
 we will both stand where we are. Or, if you are willing to 
 confer with me about this business and see what right and 
 justice demand in respect to my claim and yours, we will pro- 
 ceed to settle the thing properly without going to the courts 
 at all.” 
 
 So right and justice demand this, and only this, that the 
 Troy and Greenfield Railroad Company may redeem that 
 property on paying what it cost, less any sums that may ap- 
 pear to have been unwisely or imprudently expended in the 
 light of engineering knowledge at that time. It is not what 
 now would be considered wise, but what was discreet and pru- 
 dent according to experience and engineering science at the 
 time when the thing was done. Deduct, if you please, any- 
 thing of that kind. Let the treasury of the Commonwealth 
 be paid what it has properly expended for this property in 
 good faith by whoever proposes to come and make payment. 
 It is not the Troy and Greenfield Railroad Company except 
 in name. That is what the interests of the people of the 
 
50 
 
 Commonwealth require. Of course, I regret very much that 
 gentlemen on the other side do not agree with me. That is 
 what I think will afford justice to the Troy and Greenfield 
 Railroad Company. That is what I think I ought to attempt 
 to accomplish here for the Commonwealth. That is what I 
 think I ought to ask you to hold, retain, and preserve for the 
 people — for the people of the Commonwealth ; to do just what 
 his Excellency the Governor, in his communication to the 
 Legislature, said, stating it in his own language : — 
 
 “ The question will occur, whether the legal relations of the 
 parties have been modified in any way by the consent, express 
 or implied, of either of them, and whether the party having 
 the right to redeem has not so acted with full knowledge of 
 the facts attending the progress of the tunnel, and so acqui- 
 esced in the manner and course of its construction, allowing 
 the Commonwealth to make its immense outlays for the suc- 
 cessful completion of the work without objection or protest, 
 that it is now fully entitled to be repaid, in accordance with 
 general legal principles, what it has thus expended in good 
 faith under the advice of competent engineers, with all the 
 light afforded at the time by the highest intelligence on the 
 subject, and while carrying out, consistently with the general 
 original project, those scientific and practical methods and 
 plans which then seemed reasonable in connection with an 
 enterprise of unknown and unparalleled magnitude and diffi- 
 culty. Where, also, in the same good faith and in the neces- 
 sary development of the work, changes were made from the 
 original project, as in the location of the railroad, or the size 
 of the tunnel, which subsequent experience has shown to have 
 been wise and beneficial, and to which the mortgagor with full 
 knowledge made no objection, it is claimed that the Common- 
 wealth should, in accordance with the principles of law ap- 
 plicable to such a state of facts, be compensated for the proper 
 cost of such changes and enlargements, if the mortgagor ex- 
 pects to come into possession of them, and enjoy all the profit- 
 able results accruing from them. While the Commonwealth 
 should so act as to secure justice to the Troy and Greenfield 
 Railroad Company, it should insist on justice to itself.” 
 
51 
 
 I do not believe tbis Committee is to be carried off its feet 
 by any clamor about the danger of an accusation of repudia- 
 tion against this grand old State. When the Troy and Green- 
 field Railroad Company comes here for justice, it must allow 
 the Commonwealth to have something to say as to what justice 
 requires. The petitioner should not be allowed to dictate its 
 own terms, and assert that it will have just what it claims and 
 nothing else. It is enough that the Commonwealth stands 
 ready to do and to execute substantial justice without resort 
 to the courts. 
 

 
 
 
 
 
 * 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ARGUMENT OF HON. J. H. CHOATE. 
 
 Mr. Chairman and Gentlemen of the Committee: 
 
 I do not propose to renew any of the arguments that have 
 been presented by the distinguished gentlemen who opened this 
 discussion on the part of the Troy and Greenfield Railroad 
 Company. So far as his argument set forth the facts upon 
 which you are to solve the question submitted to you, the 
 learned Attorney- General has not undertaken to combat any 
 of them. In fact, it was impossible for him to do so, because 
 they are all drawn from the records, and all consist of official 
 acts, not on the part of the company but on the part of the 
 State, which are claimed upon one side and the other to affect 
 the rights of the company. 
 
 I shall, therefore, endeavor as well as I may in the short 
 time assigned to me, to meet some of the objections which the 
 Attorney-General has interposed, and at the outset, if he will 
 allow me, I must protest against the suggestion he made, which 
 might prejudice the Committee, that we and our clients are 
 outsiders and foreign to this jurisdiction. We claim to repre- 
 sent the Troy and Greenfield Railroad Company, as it is and 
 as it was from the beginning, and the substantial interests we 
 represent are the substantial interests that have been part of 
 it from the beginning. So I, too, do not wish to be turned 
 out as an outsider, because I claim to be “ to the manor born ” 
 and to belong, like yourself, sir, to that good old county of 
 Essex, which the learned Attorney-General thinks has been 
 depleted by the loss of its carrying trade by water, by the 
 opening of this new avenue for traffic through Hoosac Tunnel, 
 and I propose to claim my rights as a son of the soil until 
 Massachusetts repudiates her contract obligations, as he now is 
 contending to have her do. 
 
 Now, the Troy and Greenfield Railroad Company appears 
 here purely in the attitude of a petitioner, but as a petitioner in 
 a position that the State of Massachusetts has always taken 
 great pride in protecting, namely, one that had rights but was 
 
 ( 53 ) 
 
54 
 
 helpless without her aid in the assertion of those rights. That 
 it has rights has never been denied, and has been conceded 
 here to-day, by the chief law officer of this State. These 
 rights may not be of any pecuniary value ; if the grounds 
 that he takes are tenable and shall be finally sustained, they 
 are worse than valueless; but that it has a right, and a 
 right to assert that right, he must concede and does. Be- 
 cause it is plainly given to us by the express letter of the 
 act of 1862, which declares that this company shall have the 
 right of redemption, some right or other, for ten years after 
 the road shall have been completed and be in running order, 
 which took place in the year 1875 or 1876. And yet, singu- 
 larly enough, here is a petitioner with conceded rights, and no 
 remedy except such as it shall receive at your hands. W ell, 
 that is a very anomalous state of things, but the record shows 
 how it has come about. The right was accorded to us by the- 
 act of the State, the contract of the State, and the same con- 
 tract promised us a remedy, because it says in the second 
 section that we shall have the right of redemption, which 
 means the right to redeem by law. Well, like a great many 
 other rights whose enjoyment depends on governmental action, 
 the act, while it promised us a remedy, failed, as it turns out, 
 to provide for it ; and so it was like many a claim that is 
 admitted but must remain uncared for until there is an 
 appropriation to meet it. 
 
 I say that the act of 1862 promised a remedy in plain terms 
 but did not provide it ; and yet everybody who knew anything 
 of the subject in 1862, supposed that those words by which it 
 promised it, when taken in connection with the general acts 
 of the State vesting general jurisdiction in law and equity in 
 the Supreme Court, did also provide the remedy as promised. 
 But in 1878, when this petitioner filed its bill in the Supreme 
 Court on the strength of this supposition, which had been con- 
 curred in not only by the executive officers of the State and 
 by the Legislature, as we may fairly believe at the time they 
 passed the act of 1862, but also, as Mr. Gooch has shown, by 
 the law officers of the government from that time to this, and 
 by the learned counsel whose opinions they took, although it 
 had been supposed to exist, it was found out when brought to- 
 
55 
 
 the test that it did not exist, and that no act had been passed 
 to provide this remedy which had been promised. 
 
 The equity of our case thus lies in a nut-shell : — 
 
 In 1862 the Commonwealth of Massachusetts induced the 
 railroad company to surrender to it all its property, and all 
 its franchises, in order that the tunnel might be completed — in 
 reliance upon the covenant of the Commonwealth, expressed 
 in the most solemn form by statute — that the right of redemp- 
 tion shall not be barred until ten years after the completion of 
 the tunnel. In 1878, within two years after that event, the 
 Supreme Court decides that the right is barred by the refusal 
 or failure of the Commonwealth to submit itself to the juris- 
 diction of any court, so as to allow the right to be adjudicated. 
 Until the bar so created is removed, then, by the uncondi- 
 tional submission of the Commonwealth to the jurisdiction of 
 some court competent to determine its rights and those of the 
 company as they now exist, the promise of the Common- 
 wealth is not fulfilled. And so we are here on the part of the 
 company, asking simply that this may be done — asking for 
 no favor, no privilege — simply for our right, that this bar to 
 our right of redemption, which the State thus promised, should 
 not stand in our way, but which is thus found by the default 
 of the State to stand there, may be removed. 
 
 Now it is wholly independent of the question what our rights 
 are worth, or whether they are worth anything, it being con- 
 ceded that we have a right to assert, and have been promised 
 a remedy, and have failed of it by this misadventure, which 
 was no fault of ours, but only and wholly the fault, thus far 
 at any rate, of the State. We are driven to the Legislature as 
 petitioners to ask that the State shall do what all enlightened 
 governments have cheerfully at all times consented to do, and 
 what all the recognized rules of the administration of justice 
 as between governments and subjects, whether they are repub- 
 lican, monarchical, or despotic, concede to be the duty of a 
 government, namely, where there is a conceded right to afford 
 in the courts of the government a remedy. I will not enlarge 
 upon that suggestion, because we state it as a settled principle 
 of enlightened government that where there is a subject with 
 a right against the sovereign, no matter what the character of 
 
56 
 
 that sovereign or government may be, its duty is to give that 
 subject a remedy, and one co-extensive with the right in some 
 proper court, before some proper tribunal, in law or equity, 
 that may be competent to pass upon it. 
 
 And that is especially so where the rights claimed and the 
 rights conceded, whatever may be their extent, depend upon a 
 contract between the sovereign and the citizen or the subject. 
 I can well understand that if our rights did not stand on con- 
 tract, there might be a reasonable objection on the part of the 
 sovereign to vesting in any tribunal jurisdiction over it. If, 
 for instance, we had an uu liquidated claim for damages grow- 
 ing out of some misfortune of the State, if you please, that 
 had happened, on which there was liability charged upon the 
 State, unliquidated, so that it might be dependiug upon the 
 whim or caprice of the tribunal that might be selected — a jury, 
 for instance — it might be not only natural but reasonable for 
 the sovereign to hesitate before submitting such a claim to such 
 a tribunal. But where the right rests upon an acknowledged 
 contract, and must necessarily be measured by settled prin- 
 ciples of law and of equity, what reason can be suggested why a 
 remedy should not be afforded co-extensive with the right ? And 
 so our petition, which is only for that — to provide the remedy 
 which has been promised to us by the act of 1862, under which 
 we surrendered our property — has been referred to this Com- 
 mittee to dispose of on principle ; of course upon the principle 
 of justice to both parties — justice to this helpless party, whose 
 whole existence, as Mr. Attorney- General has said, seems to 
 have been absorbed under the act of 1862, and resumed by the 
 State, as well as justice to the all-powerful sovereign with 
 whom we are here contending ; and this Committee is, for the 
 time being, vested with the keeping of the conscience of the 
 State, and it is to that that we appeal to give us justice, and 
 to give us no more than j ustice. 
 
 Well, that is the situation; that is the question submitted 
 to you, whether it is right that we should have a chance to 
 present and have determined the question of our rights by a 
 competent tribunal. Now there are three ways, and only 
 three that I know of, in which that question can be disposed 
 of, and one or the other of those three alternatives — if I may 
 
57 
 
 say three alternatives — must be finally adopted by this Com- 
 mittee. In the first place you may, if you please, let the 
 matter alone; you may serve the office of so many legislative 
 committees that have sat in this building, I suppose, as in all 
 other State-houses and capitols ; you may smother the question 
 entirely, and do as your predecessors did, postpone it to the 
 next legislature. 
 
 That is the way in which a great many important questions 
 are disposed of, and a great many urgent and pressing rights 
 are suppressed for the time being, but I do not believe that 
 this Committee, giving the earnest attention to it which they 
 have manifested to-day, will be content so to dispose of it, or that 
 the Legislature will be willing to go back to its constituents 
 in any or all parts of the State, leaving this matter unsettled 
 or undisposed of. So I leave that out as an impossible alter- 
 native. 
 
 Then there are two other ways, one or the other of which 
 you must determine upon : either to remit this question of our 
 rights as they now stand to the proper tribunal, which as we 
 claim is capable of deciding it, and should be trusted to decide 
 it, namely, the Supreme Court, which is deemed by the people 
 not only of this State, but of the whole country, a perfectly 
 satisfactory and competent tribunal to pass upon any question 
 of law or equity between any suitors of any grade or degree 
 whatsoever; or else you must adopt what you are urged by 
 the Attorney-General to adopt, namely, a bill which shall deny 
 us that right, and which shall submit it to the Supreme Court, 
 if you please, or some other tribunal, not according to our 
 existing rights and the existing rights of the State, but accord- 
 ing to new terms and new conditions to be imposed at the will 
 of one of the parties, to wit, the State, without the consent of 
 the other, and against its rights. 
 
 Let me enlarge upon that idea somewhat. W e have certain 
 rights. They depend upon all the acts of both parties in the 
 past, and upon all their contracts and all the legislation, all 
 that they have done and left undone ; and at this moment are 
 capable of solution upon settled principles of law and equity. 
 If, as I shall presently attempt to show you, you refer them to 
 the Supreme Court to hear and determine according to those 
 
58 
 
 principles, they will be adjusted rightfully according to all 
 that has heretofore passed between the parties, and no man 
 can say when their decision shall be received and acted upon 
 that injustice has been done to either party, and no man ever 
 will say that. That is one thing to do with this case. But if 
 you refuse that, conceding that we have a right founded upon 
 contract that is capable of being determined, and you say that 
 it can only be settled by passing a new law imposing new 
 terms, what do you do then ? Why, you pass a law for the 
 express and avowed purpose of impairing the obligation of a 
 conceded contract as it stands. I understand the learned 
 Attorney-General to go to that extent. “ It may be that we 
 have no defense to your claim on the facts as they now exist, 
 and we will not submit it to the Supreme Court to be deter- 
 mined upon those facts, because we are apprehensive they will 
 decide in your favor, and therefore we insist that it shall go to 
 that court under a limited jurisdiction to give you a remedy 
 shorter than your right, i. e., to take away some of your rights 
 and impair our conceded obligations.” 
 
 Now, that is the way the case strikes me as the real ques- 
 tion for this Committee to determine, and if that be so, then 
 the discussion which has been had of the merits, however in- 
 teresting and instructive it may be, for the purpose of enabling 
 the Committee to pass upon this particular question that is re- 
 ferred to it, is not entirely to the point of the ultimate question 
 to be determined here. I want to repeat once more what I 
 understand to be the nature of our rights as we claim them, 
 as they stand to-day. We say that our company long before 
 1862, was vested with these valuable franchises, with the 
 property which was subsequently mortgaged to the Common- 
 wealth, with the right to build and construct that railroad. 
 By subsequent acts of the State, and by aid of the State, gen- 
 erously granted for the purpose of building a tunnel through 
 the Hoosac Mountain and completing the road, they became 
 entitled to loans from the State, which should ultimately reach 
 the sum of $2,000,000, and the State became by mortgage 
 vested with a lien upon the entire property for that amount. 
 I will not recite what passed prior to the passage of the act 
 of 1862, except presently for a single moment, and for a def- 
 
59 
 
 inite object. The act of 1862 is the chart that must guide 
 the final determination of this question by any tribunal, 
 whether legislative or judicial, that looks into it. The mort- 
 gages that went before, the learned Attorney -General said, 
 determined the matter. Not without the act. The act, because 
 it embodies and refers to the mortgages, necessarily covers the 
 whole ground. Now, what is provided by the act ? Why, 
 that the Troy and Greenfield Railroad Company, upon the 
 invitation of the State, without any default having been com- 
 mitted on its part, did surrender all its property and its fran- 
 chises to the State, upon the contract set forth in that act, 
 which provided, briefly stated, that the State should in its 
 own way, with whatever changes it saw fit to make, complete 
 that road and construct that tunnel, but that the right of re- 
 demption under the mortgage and the act together should ex- 
 tend till ten years after the road was completed and fit for use, 
 and that although the State might spend ad libitum in its dis- 
 cretion, or according to its caprice or the caprice of its legis- 
 lators or its engineers, upon the building of the road in its 
 own fashion, yet, that when the time for redemption came, 
 no more than the original $2,000,000 should be exacted from 
 this company as the condition of redemption. 
 
 Let me read that proviso again, for it is the key to this whole 
 question. I mean the question that has got to be decided by 
 some tribunal or other, and I will read it from page 11 of Mr. 
 Gooch’s brief : “ Provided, that all expenditures and advances 
 made under and by virtue of this act shall be on account and 
 form part of the $2,000,000 authorized to be loaned in State 
 scrip to the Troy and Greenfield Railroad Company, by chap- 
 ter 226 of the Acts of 1854, and said expenditures and 
 advances, together with all sums hitherto advanced to said 
 company, excepting the sums advanced on account of the 
 ‘Southern Vermont Railroad’ shall not exceed in amount the 
 said $ 2,000,000 .” 
 
 It is a well-settled rule of construction that all the parts of 
 an act are to be taken together, and when you find the second 
 section giving the right of redemption, when you find the first 
 and one of the concluding sections giving the right to the 
 State to go on and build the road and tunnel in its own way. 
 
60 
 
 without instructions from the company, and then “provided ” 
 — that is a proviso upon the whole act, and means what it says 
 — that when the time for redemption comes, whatever may 
 have been done or lost, no more than the original $2,000,000 
 shall be charged to the account of the company, and that on 
 these terms and no others, the company shall have the right to 
 redeem. Now, I ask this learned Committee to consider, and 
 being all lawyers they can all follow me without the least 
 doubt or difficulty, to consider the future course of events in 
 the disposition of this question, if the alternative that we insist 
 upon, namely, the plain submission of our rights, and the 
 State’s rights as they now stand to be determined by the 
 Supreme Court, shall be adopted. The hesitation of the 
 learned Attorney- General to send the case before that court 
 seems to us to indicate one of two things, the case being of the 
 nature that I have pointed out. It is a distrust on his part. 
 Is it a distrust of the court to which it is proposed to send it ? 
 Or is it a distrust of the Commonwealth’s case that is to be sub- 
 mitted, or that is proposed to be submitted to that court ? If 
 the State has as good a case as he believes, why we have to go 
 before that court only to be dismissed with costs, and it is not 
 under the dome of this Capitol, I am sure, that we shall ever 
 hear any suggestion of doubt or distrust in regard to the 
 Supreme Judicial Court of Massachusetts. 
 
 Well, now, we will suppose that we have got into that 
 court, and the learned Attorney- General appears there and 
 presents the views that he presented here this morning. 
 What I ask this Committee to consider is whether there is 
 anything in them, not of merit or of substance — I will con- 
 cede that they are all meritorious and all sound, for the sake 
 of argument — is there anything in them that the Supreme 
 Court is not entirely capable of disposing of, and is there any 
 reason why it is not the most proper tribunal in this country 
 to which they should be submitted ? Take, for instance, the 
 first point with which he set out, namely, what is the stand- 
 ard for determining our rights ? He says that we claim it is 
 the Act of 1862 and that act only, and he claims it is the 
 mortgages and the mortgages only. W ell, gentlemen, whether 
 our rights depend upon the act or upon the mortgages, or the 
 
61 
 
 combined effect of both together, and of all subsequent events,, 
 of all things that have been done since or omitted to be done, 
 that is the question. Is that a judicial question or a legisla- 
 tive question ? Does it require any new act except the giving 
 of jurisdiction, does it require the imposing of any new terms 
 or conditions, to enable the Supreme Court to say what is the 
 proper standard by which to measure our rights? Well, 
 then, in pursuance of his suggestion that the mortgages, with- 
 out the Act of 1862, are the measure of our rights, he inti- 
 mates that the corporation was guilty of some default before 
 the passage of the act. And although I deem that an utterly 
 immaterial question, yet it is a question which I am now ask- 
 ing you to consider as one proper to be submitted to the 
 Supreme Court. If it is true, as the learned Attorney-Gene- 
 ral says, that we made defaults prior to 1862, which cannot 
 now be compensated for by money — what they are we never 
 heard of, they have never been more than covertly suggested 
 — but if that be true, and if it cuts off our right of redemp- 
 tion, cannot the Supreme Court so say ? But we claim, if 
 the Committee please, that it is proved upon the record here, 
 beyond all possibility of further question, that there was no 
 default upon the part of this railroad company prior to the 
 Act of 1862. If there were, it would be wholly immaterial in 
 view of the provisions of that act, by which the surrender 
 was accepted on terms embodied in it ; wholly immaterial. 
 
 But what are the facts as they stand here ? Why, the work 
 was suspended in the month of July, 1861. In December of 
 the same year, the Governor’s Council, by an unanimous vote 
 in writing, recorded their protest against a decision of his to 
 that effect, and solemnly declared that there had been no de- 
 fault on the part of the company, and that the suspension had 
 been brought about by a misunderstanding on the part of the 
 engineers of the State as to their duty ; and in the month of 
 March following, you have the report of the joint committee 
 of the two houses, three gentlemen of the Senate and seven 
 gentlemen of the House, all of them unanimously reporting to 
 the same effect. But whether that be so or not, assuming that 
 you can go behind the protest of the Council and the report 
 of the joint committee, and everything that was said am I done 
 
62 
 
 in those days to discover defaults of the company, if any there 
 were, what is the proper tribunal to try that question ? A 
 legislative committee, or the Supreme Court of the State ? I 
 say, then, that that court, on this first question that was raised, 
 is the true and only proper tribunal in the first place to deter- 
 mine what is the standard of our rights by which they are to 
 be measured, and what is the fact as to alleged defaults, if 
 they are alleged, and what is the legal consequence upon our 
 rights and the rights of the State of any such defaults. 
 
 But you will observe that the Act of 1862 was passed after 
 all the mortgages were made, and all possible defaults had 
 been committed. The learned Attorney-General’s idea, that 
 there was a mortgage subsequent to the act, failed on examina- 
 tion by the Committee. It was after all mortgages and all 
 possibility of making default that the promise of the State, 
 on which we rely, was given, because after the passage of that 
 act and the surrender that took place thereunder, the com- 
 pany was absolutely powerless for good or for evil. You must 
 have observed the effect on the part of the counsel of the 
 State to have our rights determined as if the Act of 1862 had 
 not been passed. Well, suppose you are, as he would have it, 
 to strike out the Act of 1862, on which we rely so much, then 
 would there be any lack of reason or propriety in sending this 
 case to be determined by the Supreme Court ? 
 
 But now to proceed with his other objections. He says that 
 we are claiming to redeem the tunnel, which was not created 
 at the time of the mortgage or of the act. Well, in a certain 
 sense that is true, but it is in no other sense true than it would 
 be if a man having dug the cellar of his house, of his pro- 
 posed mansion, mortgaged the lot and the house that was to 
 be erected upon it for the purpose of raising means to build 
 it. What are the facts ? What is the history of these mort- 
 gages and of this act? What were they for? What was the 
 object of the Legislature in passing them? Why, it all 
 appears upon the title and the face of the acts themselves. 
 It was to enable this tunnel to be built and the railroad 
 through it connecting Troy and Greenfield, to be completed ; 
 a great object as was then thought, and I believe as is now 
 realized, for the whole State. It was in its infancy. Every 
 
63 
 
 railroad built in recent years in this whole broad country is in 
 its infancy, when a mortgage is placed upon it to provide 
 means for building it. It is an unfortunate system we have 
 got into of building great public works. But who ever heard 
 before as an answer to a claim of right under a mortgage or 
 under an act which embodied a mortgage, that when the mort- 
 gage was put upon it there was no tunnel, no railroad, no build- 
 ing yet there ? Why, of course that was what was assumed in 
 making the mortgage ; that was what was assumed in this Act 
 of 1862. It was for that very reason that the acts were passed 
 and the mortgages made. What did the Legislature call it ? 
 “ An Act for the more speedy completion of the Hoosac Tun- 
 nel and the Troy and Greenfield Railroad ; ” and the very first 
 section in it provides that commissioners shall be appointed 
 to see how best this tunnel can be built. Well, we are not 
 afraid of that question to be decided by any tribunal ; but 
 what is there in it that is not capable of being determined by 
 the same settled principles of law or equity applicable to the 
 facts of the case when they are agreed or proven ? I am 
 asking you to consider what if you grant our alternative, be- 
 cause by-and-by will come the contrast to what will be if you 
 refuse it. The learned Attorney- General says : — “ Why, you 
 mortgaged the property that you then had, and you did not 
 have this tunnel at that time.” Well, that is the same idea, 
 expressed in other form, that I have already treated upon. 
 
 Now, he comes to another question, and the Committee will 
 see that I am not trying to discuss upon their merits all these 
 various questions which he has suggested. I am trying to 
 help the Committee to determine what sort of questions are to 
 be determined, and what is the proper tribunal for their de- 
 cision. 
 
 The Attorney-General says that the great error on our part 
 is that the company comes after many years of silence and 
 asks for all that the State, by immense expenditures of its own 
 means, has built since it took possession, and asks that on pay- 
 ment of a pittance of $2,000,000 and interest it shall be put 
 in possession of the whole ; that it asks all these great things 
 in return for the little things that it gave up. Well, now, that 
 might be so. I mean to say that might constitute an answer 
 
64 
 
 to our claim, although on any known principles of law or 
 equity we can not see how it does. Now, what does that 
 amount to as a defense, as a plea, as an answer to our claims ? 
 One of the learned members of the Committee asked : — “ Did 
 not this company allow this great work to be done without a 
 protest?” And another asked, “Did it not have entire cog- 
 nizance through its officers of what was being done at the 
 time, and did it not silently acquiesce ? ” Well, it may possibly 
 be that ingenious theories of law may be applied to these 
 facts, which will constitute them a defense on the part of the 
 State ; although how, under the provisions of the Act of 1862, 
 which is our contract, any such result can follow, we can not 
 begin to conceive. The mortgagor having got into difficulties, 
 the mortgagee says : — “Oh, you are not strong enough to finish 
 this work ; let me go into possession and finish it ; I have 
 ulterior purposes of my own in regard to it, beyond the mere 
 finishing of it ; I will take it into my possession and complete 
 the work, but that shall not interfere with your right of re- 
 demption, which shall last ten years after it is finished, and 
 you shall have it on payment of $2,000,000 and interest.” 
 Now if that was the contract, as we claim, how could silence 
 or acquiescence affect it? Why, we had agreed to acquiesce, 
 had we not? This is in the Act of 1862. We had given to 
 the Commonwealth full and complete liberty ; we even sur- 
 rendered our own existence, for the time being, to the State, 
 as well as all our property, and the right to use it as the 
 Commonwealth willed ; we had agreed to be silent and not to 
 protest, and to protest would have been a mere impertinence 
 on our part. That is, at any rate, in general terms the view 
 we take of it. Now suppose this matter is submitted to the 
 Supreme Court to determine, as it usually determines questions 
 between suitors on principles of law and equity ; is there any- 
 thing in it that can not be solved by those principles ? Is it 
 necessary to pass a new law defining and limiting and taking 
 away a part of our rights, a law made by one of two parties 
 at the expense of the other, when you have a tribunal by 
 sending it to which all these questions affecting our rights and 
 those of the State can be readily adjusted ? I submit that it 
 is not. 
 
65 
 
 The learned Attorney-General has raised another legal ques- 
 tion, although a novel one — I do not believe that in the records 
 of the Supreme Judicial Court he found any suggestion of it — 
 namely, he says it may be, and I do not understand the At- 
 torney-General to urge this on the responsibility of his official 
 or professional opinion, but he says it may be because we have 
 suffered the State to go on with the work beyond the point at 
 which we could distinguish what we had mortgaged to them 
 from what was created by the State subsequently to the sur- 
 render, our right of redemption has gone, and that a new right 
 has sprung up in its place, namely, a right of compensation 
 on some unknown principles of equity. Well, I agree with 
 him that it may be. Legal miracles are always possible. 
 That may be, but if an opportunity is to be given to any tri- 
 bunal to perform such a judicial miracle as that, I suggest 
 that the Supreme Judicial Court of Massachusetts is still 
 competent for the task. It is possible, at any rate, they can 
 hear such a claim argued on the part of the State, and they 
 can be trusted to determine it. It is a very novel idea ; it is 
 mixing up the claims of parties arising and defined by con- 
 tract with the old notions of a wrong-doer confusing the goods 
 of another with his own, when the penalty was that if thereby 
 they could not be distinguished, the innocent sufferer should 
 take the whole, and the wrong-doer should lose the whole. 
 That is the only thing that could be pointed to as an analo- 
 gous illustration of the principle. Whose fault was it that the 
 identity was lost ? Whose fault was it that instead of a four- 
 teen-foot tunnel this great tunnel was projected and created? 
 The State took the road by the terms of the contract to do 
 just that thing if it pleased, to do anything that it pleased 
 — and yet it says, “Oh ! well, you should have protested when 
 we were proceeding to do it. You should not have allowed 
 the identity of your plan to be lost in our greater plan ! ” 
 Well, how could we help it? 
 
 Now, let me read to you two more propositions of the learned 
 Attorney-General, which express the idea certainly in a very 
 intelligible form. He says that “ if an imperfect thing is 
 mortgaged to be completed by the mortgagee, the mortgagor 
 should, on redemption, pay the necessary cost.” Well, that 
 
66 
 
 may be so as a principle of equity between mortgagor and 
 mortgagee, unaffected by any subsequent agreement — it proba- 
 bly would not be contested — but how if the parties have agreed 
 as we claim they have agreed, that whatever might be the 
 necessary cost, the mortgagor on redemption should pay no 
 more than a certain agreed sum ? There may be nothing in 
 our claim, but still we do so claim. How if they have agreed 
 that if you spend more than the amount named in the mort- 
 gage, still nothing beyond that amount shall be charged to the 
 mortgagor ? What then becomes of this principle that “ if 
 an imperfect thing is mortgaged to be completed by the mort- 
 gagee, the mortgagor should, on redemption, pay the necessary 
 cost”? 
 
 Another thing ! Another form of the same favorite idea 
 which constitutes the defense of the State, for the State to put 
 on the defensive so long as it keeps us out of any court that 
 can try our rights. The learned Attorney-General says that if 
 in constructing the tunnel or the works mortgaged, by growth 
 in the science of engineering, or by new devices introduced in 
 the science of engineering, it is thought best to make a differ- 
 ent thing, and the party affected lies by and does not object, 
 then to redeem he must pay the cost of the better thing, less 
 the unnecessary waste, or what might properly be called waste, 
 as it was viewed at the time the work was done. W ell, if we 
 were in a court of law I would challenge the learned Attorney- 
 General to produce an authority for that proposition. 
 
 Attorney-General Marston : — There never has been 
 a Hoosac Tunnel before. 
 
 Mr. Choate : — But suppose that is so, and that is law, 
 taking the mortgage and the tunnel together ; still between the 
 mortgage and the tunnel lies the Act of 1862 , and what says 
 that as bearing on the proposition as to the legal consequences 
 of substituting a new thing for the old, and the party lying by ? 
 What did that reservation of authority to make any changes 
 by the State mean ? Why, to make a new thing if the State 
 so willed it. What did the surrender, and the complete 
 grant by the company to the State, of power to do everything 
 with it as it would with its own, mean ? Why, that the com- 
 pany should lie by, and that it was none of their business what 
 
67 
 
 the State did, provided they accomplished a work as good as 
 that which was projected and specified before the Act of 1862 
 was passed, it being provided (and you see that proviso was 
 put in after the bill was first proposed, and the surrender was 
 agreed to on the strength of the terms of that proviso), that 
 we shall have the right to redeem for ten years after you have 
 got through, and that we shall only be charged $2,000,000 
 and no more, whatever you may do, whatever you may 
 spend ? And, as Mr. Gooch has shown, it was perfectly under- 
 stood then as it is now, that as railroad property it would not 
 be likely to be worth any more than the sum limited as the 
 condition of redemption. 
 
 Well, other forms of expression are used. The learned 
 Attorney-General says, “ Why, no, we don’t care anything 
 about your contract — what your rights under the contract 
 are ; but when you come to ask us to give you $20,- 
 000,000 worth of property for $2,000,000, we won’t do it.” 
 Well, but suppose you have contracted to? Well, he says, 
 the whole theory of his position is, “ even if we have contracted 
 to, still we won’t do it.” Yes, the Legislature of Massachu- 
 setts may take that position, even if that extreme case should 
 come before them, as it is not 'now, but I believe it will be 
 a good many hundred years before they do take it. The 
 Commonwealth has gone two hundred and sixty years with- 
 out passing any act impairing the obligation of her own con- 
 tracts willfully and knowingly. But that case is not here. I 
 know that $18,000,000 have been spent out there in the 
 Hoosac Tunnel and in the neighborhood, but upon the strength 
 of that to turn round and say to us that it is worth $18,000,000, 
 or $20,000,000, why we might as well say that the sun does 
 not shine at noonday as to assert a proposition like that ! It 
 is worth something for railroad purposes, and for State pur- 
 poses; yes, in one sense, it is worth more than $18,000,000. 
 It has been a favorite idea, preached here in Boston and 
 throughout all the borders of the Bay State, that the opening 
 of the Hoosac Tunnel was vital to the maintenance of* the 
 prestige of the State in its manly struggle for commercial 
 supremacy with its rivals in other quarters of the Union. 
 That was the motive that pressed the great work through in 
 
68 
 
 spite of every obstacle, and no matter what money was spent, 
 it was worth it all to Massachusetts, and even though a large 
 proportionate part of that money may have been wasted in 
 the great effort. But as a matter of value as a railroad, you 
 can not turn round upon us and say, “ Why you want $18,000,- 
 
 000 worth of property for $3,000,000.” Already it has been 
 running four or five years, and the best that can be demon- 
 strated from its earnings is that it is worth a million and a half. 
 But the Attorney-General says : — “ W e are going to put a double 
 track through there, and so increase the earning capacity.” 
 Well, double it if you please, it would not make it worth more 
 than twice as much, would it ? No man can look at it as a rail- 
 road property in a practical business view, and say that the 
 sum which this company supposes itself liable to pay under 
 this clause of redemption is not fully or approximately what it 
 is worth to-day, or what it will be worth for some time to come, 
 on any reasonable estimate of improvement in its earning 
 capacity in the near future. 
 
 I have said what I have said by way of enforcing the prop- 
 osition I set out with, and so far as I can to aid the Committee 
 to decide which of the two alternatives to choose : to send it to 
 the Supreme Court, or to pass a new law whereby the existing 
 rights of the State and of the company shall be altered. 
 
 1 have reviewed all the learned Attorney-General has said. 
 Is there anything in it that is not capable of solution on well- 
 settled principles of law or equity ? Not one. Not a question 
 of fact, of law, or of right. It is simply a case of contract, 
 and nothing but contract. We may be all wrong in our 
 assertions and opinions about the contract and as to the extent 
 of our rights under it ; it may not mean what we say ; we may 
 have violated it or forfeited it a thousand times ; but the claim 
 is one upon contract that is capable of being clearly adjudi- 
 cated upon the facts as they stand, and can be proved as 
 every other claim on contract is, and if you send it to the 
 Supreme Court it will be so solved, and our rights will be 
 giv^n to us by the court and the State’s rights will be given 
 to it by the court, and if the court says, “ You must pay $18,- 
 000,000 in order to redeem,” we shall have the option to do it, 
 or to abandon all further claim ; and if the court says, “ You 
 
69 
 
 are to pay only $3,000,000 or $4,000,000 or $5,000,000 to 
 redeem,” it will be accepted by everybody, because everybody 
 will know it is not only the law but the right. Well, now, 
 why not send it to the court, as I said before ? If you have 
 got so good a case as you think you have, you certainly are not 
 afraid of the court ; and having full confidence in the integ- 
 rity and capacity of the court, if you refuse to send it there it 
 must be that you do not believe in your case. 
 
 There is, as I said at the outset, another alternative ; and 
 that is to pass the bill which was proposed last year to do 
 what the learned Attorney-General proposes to you to-day ; 
 and now what is that? Not to pass a bill which shall 
 enable this question to be determined according to the 
 rights of the parties as they are, but being in the situation 
 that we are, a helpless suitor stripped of its property 
 by reliance on the good faith of the State, out in the cold until 
 the State shall open the door, and on the other side this all- 
 powerful sovereignty of Massachusetts, it is to say : — “ Why, 
 yes, we will let you into court on certain conditions restricting 
 the jurisdiction ; that is, if the court find that your rights are 
 just what you claim them to be, namely, that this State has 
 contracted with you to surrender that property as it is, on 
 payment of $2,000,000, we won’t let them do that ; they must 
 go on and find out what the State has wisely and judiciously 
 and in good faith spent upon it, and make you pay that, and 
 every dollar of it, as a new condition of redemption.” The 
 proposition assumes, if you please, that it may be that we are 
 entitled to redeem the whole property on payment of $2,000,000 
 or $3,000,000, and at the same time it proposes to send it to 
 the Supreme Court, and although they decide that is our right 
 on every principle of law and equity that men have ever acted 
 upon within the borders of the State of Massachusetts and 
 everywhere else, yet you are not to let us enter into the prem- 
 ises unless we will pay five or ten or fifteen millions of dollars 
 more. So we come asking bread from a paternal government, 
 and get such a stone in our belly as that. 
 
 Now, the proposition of the Attorney-General concedes that 
 the law may be as we state it, and that the facts may be as 
 we state them. Here you have two suitors — the State, and the 
 
70 
 
 poor helpless sufferer, prostrate in the dust, stripped years ago 
 of its property, confiding in the integrity, not the generosity, 
 of the State— we do not ask any favors, but trust in the integ- 
 rity and the justice of this good old Commonwealth — and you 
 say, “ Yes, we will go into court with you, but we will load the 
 scales on one side, and we will put the State of Massachusetts in 
 there, so that by no possibility can you level the scale, and the 
 court cannot help you ; we won’t let them level the scales or do 
 even-handed justice ; not at all.” 
 
 Well, this is an assertion of a higher law. It acts upon the 
 idea that the settled principles of law and equity which time 
 out of mind have been sufficient to determine the rights of 
 private suitors — yes, of all suitors, even of governments — are 
 not sufficient for this case, and so that the Commonwealth may 
 assert a higher law. And what is this higher law ? Assume 
 that there is a contract ; that our rights are capable of being 
 defined under it, and that they are as we claim them to be — 
 what is this higher law? We have all learned a higher law 
 in old times in this Commonwealth. We learned that there 
 was a higher law of conscience and of justice that we could 
 appeal to against that of the statute-book when that was unjust 
 or wicked ; and every child of Massachusetts learned that as 
 part of his Gospel. But this higher law is new here, and it 
 will be long, I think, before it will receive the stamp of legis- 
 lative sanction ; namely, that if the State has made a bad bar- 
 gain, if you please, if it is bound by contract to do a certain 
 thing, it will not do it because it is to its hurt. That is just 
 the proposition which the learned Attorney-General will suc- 
 cessfully maintain if he succeeds in inducing you to pass this 
 bill of last year. It is asserting the higher law of bad faith — 
 the right to pass laws impairing the obligation of the contracts 
 of the Commonwealth. It is asserting a right on the part of 
 the Commonwealth to beat their adverse suitors on execution 
 when judgment has gone against her. It is the same right that 
 is claimed by the State when it does not seem fit to make ap- 
 propriations for the payment of its bonds, because it is not 
 convenient. It is the same right and the same higher law of 
 the State that says to its creditors, “We will recognize our 
 obligations, but first we will re- adjust them ; ” and so the 
 
71 
 
 learned Attorney- General did actually say. If that is so, if 
 you have got the right by law and equity to have this property 
 that has cost the State $20,000,000 for $2,000,000 or $3,000,- 
 000, “ we propose to adjust it on a different basis.” Those 
 were his very words. 
 
 Now, I do not believe that the Legislature, or any committee 
 of the Legislature, is going to adopt any such new or higher 
 law of repudiation as this would be. I mean on the Attorney- 
 General’s theory that we have got contract rights here, that a 
 remedy was promised, that it has not been provided, that it 
 ought to be provided, and that we ought to be enabled to 
 make out our rights as we claim them. Yet nevertheless he 
 asks you in the name and as the representative of this hon- 
 orable Commonwealth to say to us, “ You shall not have your 
 rights as they now exist, but the Supreme Court, on any bill 
 we will send them, shall add as a new condition of redemption 
 the payment of five or ten millions of dollars that you do not 
 owe, and which, on your contract, ought not to be charged to 
 you.” 
 
 I am very much obliged to you, gentlemen, for the very 
 earnest attention you have given to me. I shall rely with 
 perfect confidence that you will not give this matter the go- 
 by ; that you will not send this matter to another Legislature ; 
 that you understand it and are perfectly ready to pass some 
 bill about it ; and that you will not pass this atrocious bill that 
 has been proposed by the Attorney-General. I mean atrocious 
 in the sense of unjust — in the sense of a palpable breach of the 
 plighted faith of a great State. 
 
 Mr. McGeough: — It would be some satisfaction to the 
 Committee to know what is the personal ability of the corpor- 
 ation to redeem in case they have permission. 
 
 Mr. Choate : — I suppose that will depend, if the Commit- 
 tee please, upon the burden that is put upon the property. As 
 I am advised, if it is decided that in order to redeem this property 
 they must pay all that the Commonwealth has spent upon it, 
 neither they nor any other corporation would for a moment 
 entertain the idea. If it is decided that they must pay what 
 the contract requires in order to redeem, I understand there is 
 no lack of ability on the part of the company to do it. 
 
72 
 
 Attorney-General Marston: — I do not want to mis- 
 understand you. I didn’t understand you to say that they 
 have at present the means to redeem. 
 
 Mr. Choate : — At present our property is all in your 
 hands. 
 
 Mr. McGeough : — Then I understand your answer to be, 
 that if you have the right to redeem, you have his same 
 property to look to for the means of redemption ? 
 
 Mr. Choate: — We should have this property to look to 
 undoubtedly. 
 
 Mr. Muzzey : — And that is your only source of means ? 
 
 Mr. Choate : — I do not say that, but this corporation sur- 
 rendered all its property under this Act of 1862. 
 
 Mr. Muzzey: — I mean, Mr. Choate, that you have no 
 other property outside of this tunnel property ? 
 
 Mr. Choate : — I think the Committee need have no fear 
 about the ability of the corporation to redeem at a proper 
 figure. 
 
 Mr. Muzzey: — I would like to ask whether this whole 
 matter does not turn upon this, whether the Legislature shall 
 not put the State of Massachusetts upon the same plane which 
 any citizen occupies toward any other citizen ? 
 
 Mr. Choate : — That is it, whether this suitor shall be put on 
 the same basis, with regard to the State of Massachusetts, as 
 if Mr. Vanderbilt, or any other citizen, were now in possession 
 of this road under the same contracts, the same statutes, and 
 the same facts as those under which the Commonwealth now 
 holds the possession. 
 
CLOSING ARGUMENT OF ATTORNEY-GENERAL 
 MARSTON. 
 
 Mr. Chairman and Gentlemen: 
 
 I do not desire to detain you to reiterate what I had the 
 honor of saying this morning. We have discussed partially 
 all the questions which this subject presents, and to under- 
 take to argue them in detail would take more time than we 
 have at our command, and engross too much the attention of 
 the Committee. Considering all that has been said concerning 
 repudiation, I think I may thank God and take courage that 
 my distinguished friend from New York is here to-night, 
 because he has assured us that he never could come to Massa- 
 chusetts again if an act of repudiation on the part of this State 
 should take place. So all this talk about repudiation in the 
 past may go for nothing, because the learned counsel is here, 
 and in the same cheerful and filial frame of mind towards the 
 State of Massachusetts as he always has been, and no act of 
 bad faith has dishonored us yet; and if anything would add 
 to the force of the argument which he has presented, to induce 
 the Committee to do what he desires, it certainly would be the 
 fear that they might possibly do something or omit to do 
 something which would destroy his inclination to visit us as 
 often as his business may allow him to leave the place where 
 he spends most of his time. But I do not think that the 
 finely constructed argument of the learned counsel is suffi- 
 cient to lead us away from certain plain propositions which 
 have been mentioned, and which may be mentioned again ; 
 and I do not think that this Committee is to be deterred from 
 any course of action which may seem proper, because he 
 chooses to designate the bill which was referred to this Legis- 
 lature by the legislature of last year as atrocious. It was a 
 bill that the Judiciary Committee of the Senate of last year, 
 after a great deal of deliberation and thought, presented to 
 the Legislature, and, in so doing, I do not think they did an 
 
 ( 73 ) 
 
74 
 
 atrocious act. It is a bill that, as I understand it, did not 
 pass the Senate, because, among other reasons, many members 
 found that it was altogether too liberal in its terms towards 
 the Troy and Greenfield Railroad Company. It is a bill 
 which, if it is atrocious, receives the substantial endorsement 
 of his Excellency the Governor in what he has said upon the 
 subject, and which is directly in the line and in the spirit of 
 what this bill proposes. I am not here with any mere pur- 
 pose of obstructing the course of justice or of legislation, as 
 the other side asserts, but because I think that the interests of 
 the Commonwealth and its treasury require that they should 
 be represented somewhat after the manner in which I have 
 undertaken to represent them, because what I undertake to 
 say and do is in accord with the bill which the Judiciary 
 Committee of the Senate of last year proposed, and is in sub- 
 stantial conformity to the expressed views of his Excellency 
 the Governor ; and I do not think that the bill proposed in 
 such a way, and referred by the Senate of 1880 to this Legis- 
 lature, and supported by the commendation of the executive, 
 should be designated here as atrocious or as wrong — I do not 
 care about that particular word atrocious — as essentially wrong 
 in principle. 
 
 I suppose that it is just, Mr. Chairman and Gentlemen, that 
 I should speak of the Troy and Greenfield Railroad Company 
 here as any suitor before the committee of the legislature ought 
 to be regarded, and yet it is almost impossible to forget what 
 the Troy and Greenfield Railroad Company was in time past, 
 when it had an active existence here in the Commonwealth ; 
 when we come to consider whether it has been through any 
 condition of contrition and repentance from that time to the 
 present, or done any works meet for' repentance, that justifies it 
 in coming up here and assuming the pathetic and suppliant 
 attitude before this committee in which the learned gentleman 
 presents it ; because it is a matter of familiar history that this 
 Troy and Greenfield Railroad Company, all the time that it 
 was on its feet and going about here, exercised the utmost 
 powers of its many instrumentalities in deceiving the Com- 
 monwealth ; and that when the time came when the act of 
 
75 
 
 1862 was passed, there had been such a load of obligations 
 and duties assumed and violated, that it could not go any 
 further. It undertook to build this road under the charter 
 granted in 1848, which their petition set forth as a request 
 that they might have the privilege of building their own road 
 with their own money (they started here back in 1848 with 
 deceptive words of that kind), which was to be located and 
 built in seven years ; and yet, after two times seven years had 
 elapsed, they had scarcely begun to build it. 
 
 They came again, in 1849, for a change of location ; and in 
 1850 for a change of location ; and in 1851 for a State loan, 
 which was refused ; and in 1852 for some other things not 
 very important; and in 1853 for a State loan, which was 
 refused ; and in 1854 they succeeded in convincing the legis- 
 lature that a loan should be made for the purpose of building 
 the tunnel — not the road, but the tunnel — and that was upon 
 the express condition that the railroad company should sub- 
 scribe $600,000 in bona fide subscriptions in stock, and that 
 twenty per cent, of it should be actually paid in in cash. 
 Then, in 1855, they came again. The towns were authorized 
 to subscribe, and towns up in that mountain region of the 
 State that had no money to spare were authorized to subscribe, 
 and they were induced into making subscriptions , and there 
 was an act also, I believe, which allowed the city of Boston 
 to subscribe ; and then they assumed the obligations of this 
 grant of the loan upon condition that they would raise 
 $600,000 worth of stock, in good faith. 
 
 They came here again in 1856, and asked the State to take 
 $150,000 of that stock ; that the State should pay out $150,000 
 to enable them to get the loan out of the State treasury, or 
 subscribe the amount which they were seeking to get. 
 
 In 1856 there was an act for a change of location. In 1857 
 an act was passed ostensibly for modifying the obligations of 
 the corporation, but really for the benefit of the contractors, 
 which the governor of that year vetoed; and in 1859 they 
 were here again for a modification of the terms of the loan, 
 and up to that time this corporation that was doing all its 
 duties, and leading such a virtuous and exemplary life, had 
 
76 
 
 succeeded in raising in cash $66,058.28 (it is not quite certain 
 where the twenty-eight cents came from,) out of the $600,000 
 they had undertaken to raise, and have twenty per cent, thereof 
 in cash before they could get any money from the State treas- 
 ury ; and they had succeeded through some adroit manipula- 
 tion of their accounts, and by other means which created a 
 great deal of talk in those days, in getting from the treasury 
 a .considerable amount of money to which they had not en- 
 titled themselves, and by this time, as the best authority upon 
 the subject says (Mr. Bird, who then knew more about the sub- 
 ject than anybody else, because he took more pains to inquire 
 into it than anybody else), their scheme and methods were 
 made plain. It stirred his righteous soul, so that he said 
 that even good Republican towns sent Democratic representa- 
 tives to pull through their plans. That appears by printed 
 papers which were distributed to the legislature at that time. 
 Mr. Bird charged that Mr. Haupt, the contractor, had pocketed 
 the corporation, and there has been no evidence that he has 
 ever disgorged it ; and it may be assumed to be in his capa- 
 cious pocket still ; and he has wandered away from Massachu- 
 setts, and the fact of his being beyond its jurisdiction may 
 account in some degree for the manner in which this petition 
 is prosecuted. They have found it necessary to call dis- 
 tinguished gentlemen from other States to come here and 
 assist Brother Gooch in presenting this extremely simple 
 matter, as they now term it, before this committee. 
 
 In 1860 they brought the State down to an agreement that 
 it should give up the requirement of the $600,000 subscription 
 of stock, and that they should give them a part of the scrip 
 to build the road, without requiring that subscription. And 
 so they got on till 1861, when this corporation not only de- 
 faults, but entirely breaks down and becomes utterly demoral- 
 ized in the opinion of everybody who took pains to look into 
 the matter. It failed, and could go no further, for the appa- 
 rent reason, Mr. Chairman, as we find in the examination 
 of the public papers of the time, that they had got up there 
 an honest and resolute engineer, who thought that engineering 
 meant engineering and not contrivance, and because there sat 
 
77 
 
 in the executive chair of the State a man whose instincts 
 were so unerring, his integrity so unflinching, that he stood 
 firm and resisted all the efforts of the committees of the coun- 
 cil to get over the condition of things as they then stood. 
 
 Well, they had a hearing, and they got a unanimous report, 
 which was indeed quite a remarkable thing, when we con- 
 sider how it was done. They had as witnesses before that 
 committee Colonel Lincoln, who was the engineer who seems 
 to have been wheedled by Mr. Haupt in some way into ap- 
 proving some very bad transactions. They had Mr. Steven- 
 son, the other engineer, who had been particeps criminis in 
 that, for the thing had become so bad that we are tempted to 
 designate it in that way. They had Mr. Haupt’s engineer, 
 Mr. Haupt’s partner, Mr. Haupt’s bridge-builder, Mr. Haupt’s 
 sub-contractor, and Mr. Haupt himself ; and on the other side 
 was Mr. Whitwell. With this sort of testimony before them 
 the committee made a unanimous report, but still Governor 
 Andrew sat there like a rock and resisted them ; then they 
 had a hearing before the whole council, and all the best, en- 
 gineering talent available was brought before them, and they 
 all said that Whitwell was right. Then they went to the 
 legislature. 
 
 In those days, that some of us remember and others of us 
 have heard about, when nobody could tell how committees of 
 the legislature were influenced — days which happily have 
 passed by, I believe — they succeeded in getting a committee of 
 the legislature to agree with them unanimously, and give them 
 a bill, which did not pass. At that time these things had be- 
 come so palpable that the attention of the legislature was 
 brought to them in many ways, and Mr. Bird wrote and pub- 
 lished two most trenchant pamphlets ; so that the committee 
 and the legislature of 186^2 said, “ This kind of thing must 
 be stopped. This building of railroad embankments with a 
 slope of one to one, which are sure to come down in the next 
 rain storm ; this trestling up forty feet in the air where the 
 law of good railroading required a bridge ; this building a 
 bridge which Mr. Vose, the engineer who carefully examined 
 it, although planned by Mr. Haupt, who had written a work 
 
78 
 
 on bridges, and though built by Mr. Child, one of the best 
 bridge-builders in the country, said was the worst structure 
 for a bridge he had ever looked upon, must come to an end.” 
 
 The road was built in sections and they were entitled to get 
 money in sections from the treasury of the State, as sections 
 were substantially built. That was in 1861. That was the 
 reason why the legislature of 1862 refused to go any further, 
 but said that the time had come when the State, to protect 
 itself, must take this thing into its own hands. They had not 
 then 
 
 “ Stept in so far, that should they wade no more, 
 
 Returning were as tedious as go o’er.” 
 
 Had they submitted to pocket the loss then, the State would 
 have been millions of dollars better off. 
 
 Then came this act of 1862, which furnishes to our friends 
 on the other side such comfort, such consolation, and such 
 hope. In this they find, or claim to find, a grant of a right 
 to redeem. Why, of course there was a right to redeem. 
 There is no controversy about that. Under all the mortgages 
 that have been made, the right of redemption existed, and all 
 the legislature in the act of 1862 said was that the right of 
 redemption existing should extend so much further into the 
 future. That was all. You can read this no other way. It 
 is not giving the right, but it is extending the right of redemp- 
 tion. 
 
 “The Troy and Greenfield Railroad Company is hereby 
 authorized to surrender to the State the property now mort- 
 gaged (nothing else) ; but the right of redemption shall not 
 be barred till ten years have elapsed after said road and tunnel 
 are completed, and the same open for use.” That is not giving 
 a right of redemption. It recognizes the right of redemption 
 under the mortgages, and says that it should be available for 
 ten years after the tunnel had been completed. 
 
 So that we come back, as I had the honor of saying this 
 morning, to the consideration of these mortgages, not to any 
 contract which is in the act of 1862, but to the mortgage 
 rights. Our friends here do not abandon their mortgage rights, 
 
79 
 
 their rights, as mortgagors, to come in and claim whatever that 
 will give them ; and then they say as, of course, they have a 
 right to argue, if they choose, that it was provided in this act 
 of 1862 that the expenditures for building the tunnel should 
 not exceed $2,000,000. The appropriation of money was limited 
 to that sum. That shows what utter childishness and ignorance, 
 what utter incompetency or inexperience there was then with 
 regard to building a work of this kind. 
 
 Because you do not believe, and will not believe, Mr. Chair- 
 man and Gentlemen, that when the legislature of 1862 said 
 that they meant to say what the gentlemen here claim, that we 
 will never charge you but $2,000,000 ; we will spend the rest, 
 if it costs fifty millions ; you may redeem on a basis of two 
 millions. But they only meant to say that, according to the 
 best advice they had upon the subject then, it was only ex- 
 pected to cost $2,000,000, and so they draw the line of appro- 
 priation there, as they must somewhere. 
 
 Now, my distinguished friend from New York, and earlier 
 from Massachusetts, which is better, argues to you as if this 
 was a new condition of things, when a party finds himself with 
 a claim against the State and has no power to sue the State. 
 Why, that has been the relation of parties to the Common- 
 wealth from time immemorial till two years ago. Nobody had 
 a right to sue the Commonwealth till a provision was madetwo 
 years ago that they might go into the Superior Court, when 
 their claim was for money due from the State, and have the 
 suit heard by two justices of that court. But this is the con- 
 dition of things that has always existed in Massachusetts, and 
 I suppose in other States. There has been no right to sue the 
 sovereign without the express consent of the sovereign. I do 
 not think that I was discovering any new principle when I 
 interposed a demurrer, as I did to the bill in equity, which the 
 Troy and Greenfield Railroad Company brought against the 
 State, and which the court had no difficulty in sustaining. It 
 was not, as is suggested here, because I was unwilling to go 
 to trial upon the general merits of the case, but because it 
 was my duty, as the learned gentleman must admit, to take 
 advantage of whatever legal defence there was to the bill. 
 
80 
 
 Mr. Muzzey, of Cambridge : — With the permission of the 
 chairman, I would like to ask the attorney general a ques- 
 tion with a view of shortening this hearing. It is this: — 
 Whether there is anything in this case which is so peculiar as 
 to shut out a party, if the Commonwealth could be sued as 
 other citizens? Is there anything here that supposes the 
 Commonwealth to be capable of suing and being sued ? Is 
 there anything here which would not permit this railroad to 
 put the Commonwealth into court, except the sovereign power 
 of exemption from suit? 
 
 Mr. Marston : — Why, of course, sir, if you assume that 
 the Commonwealth is subject to be sued, and take the next fact 
 that these gentlemen come here and make a claim, then there 
 is nothing in the way of bringing suit. I do not wish to in- 
 fringe upon the time of the committee. I will endeavor to be 
 as brief as I can. I know I may discuss some things which 
 may be unnecessary for me to discuss, but they have been dis- 
 cussed on the other side. I state this proposition, that when 
 a party comes here and asks for permission to sue the Com- 
 monwealth on a matter of this kind, he assumes that the Com- 
 monwealth, represented here by its legislature, is unwilling to ' 
 execute justice, and I ask them to say, before they call upon 
 you to give the right to sue in the courts, why they can not 
 present their case here, and if they show that they have en- 
 titled themselves to redeem, have you enact justice ; for it is 
 the right, and it is the prerogative of this State, when it is 
 told that it owes money to any of its subjects, individuals, or 
 corporations, to do justice without being drawn into the courts 
 as a suitor, and compelled to defend itself there, just as in 
 smaller matters men have come up here, year by year, ever 
 since the adoption of the constitution, and presented their 
 claims against the State to its committee on claims, which has 
 heard them and has reported resolves to compensate them, and 
 so justice has been done by the Commonwealth. Men have 
 not come up here year by year and said to the committee on 
 claims, we have a claim ; please enact a law that we may sue 
 the Commonwealth in the courts and try it out there. I sub- 
 mit that it is an imputation upon the prerogative, the sover- 
 
81 
 
 eignty, the justice of Massachusetts for a corporation to come 
 here and assume to say : “We can not settle with you because 
 you are unjust; we can not obtain our rights here, dealing 
 directly with you, because you deny us the rights, and there- 
 fore grant us the power to sue you in the courts.” 
 
 To that we answer, state and specify your claim, and let us 
 see if we can agree about it. A year ago a committee, less in 
 numbers than your committee, Mr. Chairman, but for that 
 reason, because smaller, a little more active in its inquiries, 
 asked Mr. Gooch, not with tears in their eyes, but with an 
 earnest desire to do justice in their hearts, to tell them what 
 it was that he wanted. 
 
 Mr. Gooch: — Pardon me, Mr. Chairman, I was asked 
 about six times during that hearing if I wanted to redeem 
 the property for $2,000,000, and my reply to it was : “We 
 want to redeem any property for exactly the sum which the 
 Supreme Court of Massachusetts shall adjudicate that we 
 should pay for redemption.” There was no suggestion or 
 proposition made to me, or any other terms of the statement 
 that I now remember. 
 
 Mr. Marston : — Now, my Brother Gooch must be mista- 
 ken about that, because Mr. Knowlton did not ask him so 
 simple a question, as if he was willing to have a bill to re- 
 deem upon the very terms on which he claims they have the 
 right to redeem. 
 
 Mr. Gooch : — I was asked to state what we would pay for 
 redemption. You remember the answer that I gave. We 
 claim the right to redeem on the payment of $2,000,000 and 
 interest. The attorney general, when he meets us in court, 
 will probably claim that we are to pay the $18,000,000 which 
 the Commonwealth has expended, and the province of the 
 court will be to adjudicate the payment of such a sum as, in 
 their judgment, the contract calls for. That was my an- 
 swer. 
 
 Mr. Marston : — All this is quite immaterial, Mr. Chair- 
 man and Gentlemen, to the main question that we are con- 
 sidering here. What I was endeavoring to make plain and 
 enforce was, that till this Troy and Greenfield Railroad Com- 
 pany (if there is any such thing anywhere, except upon 
 
82 
 
 paper) has stated its claim here, and has seen whether you 
 are willing to enact justice on the spot, it has no right to 
 claim that it should have an opportunity of dragging the 
 Commonwealth through the uncertain result of a lawsuit, 
 whatever that may be, and where its humble representative, 
 whoever he may he, is to meet such a number of representa- 
 tives of the American Bar Association as find it convenient 
 to assemble from all the States in the Union. 
 
 Now, then, Massachusetts is not to be dragged into a court 
 of justice till it appears that the State is unwilling to execute 
 justice with her own hands ; till we find what should be done 
 and refuse to do it ; and then it is time enough to say that 
 the State is in a condition where nothing but the quiet admin- 
 istration of the courts of justice will bring about what is de- 
 sired. 
 
 One word more, Mr. Chairman, upon the claim which has 
 been made here that, in the passage of the act of 1862, it was 
 understood that the Troy and Greenfield Railroad Company 
 agreed not to protest, but agreed to be silent as to the manner 
 in which the State carried on the work of construction. That 
 may be true, by implication, as to what was then distinctly in 
 the minds of the parties to the transaction, but can not be true 
 in respect to things which had not then been thought of by 
 either of them. What they agreed in respect to silence rela- 
 ting to what was then comprehended and understood by both 
 sides, is utterly immaterial. As to things which arose after- 
 wards, and which had been unforeseen when they entered upon 
 a different and enlarged work, about which there could have 
 been no previous understanding, they were called upon not 
 to be silent but to protest, and if they did not object or protest, 
 they are chargeable with the fact and the result. They have 
 lain by all these years, with a full knowledge of all the trans- 
 actions and expenditures by the State, and they have not ob- 
 jected. Whether we shall be able in any time of need in the 
 near or distant future, to invoke any reported decision of any 
 court of justice in support of that proposition, I do not know, 
 but if not, I should be inclined to say to His Honor, the Chief 
 Justice, what Mr. Choate said once to Judge Sprague, that 
 
83 
 
 he would search diligently for an authority to support a prop- 
 osition of law which he enunciated, but he hoped he should 
 not succeed, because he should be very sorry to rob the court 
 of the honor of being the first to establish so just a rule. 
 If it is necessary to formulate a rule of law which has not 
 been stated and adjudicated, and which is according to the 
 principles of justice, I have no doubt the court will assert it. 
 There is no need of going there. We are here. This is 
 the great and General court, more potential than the Supreme 
 Judicial Court, to execute all necessary acts for the admin- 
 istration of justice between the Commonwealth and any ag- 
 grieved party. Our friends come here with all this ample 
 and sufficient, and perhaps superabundant support of their 
 petition, and say, and I desire to emphasize that in closing, it 
 is the right to sue the Commonwealth that they want and 
 nothing else. 
 
 Now, then, in the name of the Commonwealth, I protest 
 against carrying the majesty of the State into the courts, until 
 it has appeared that there is a necessity for resorting to those 
 tribunals. The petitioners should come here, as humble men 
 have come to the legislature heretofore, to ask for justice and 
 have justice executed, not to have a doorway opened into a 
 court, where they might seek and perhaps find justice, but 
 having justice executed and delivered on the spot. 
 
 So this Troy and Greenfield Railroad Company should come 
 here and ask for nothing more than to state the case, and 
 disclose and try its claim, to show, first, if it can, as a basis, 
 that it has performed the obligations of its bond, and kept the 
 conditions of its mortgages, and trust to the justice of a Mas- 
 sachusetts legislature to do all that is needful. 
 
 I do not think there is any occasion that I should say a word 
 to you in support of the integrity and honor of this State. 
 The honor of the State is best preserved when it maintains 
 its own imperial dignity by executing its justice directly with 
 its own willing and unsullied hands. 
 

ARGUMENT OF HON. JOHN C. BULLITT. 
 
 Mr. Chairman and Gentlemen of the Committee : 
 
 The question which was asked by one of the Committee 
 seems to me to embody the whole subject before you. If I 
 understood that question it was this : — Is there anything so 
 peculiar in this case as to put the Commonwealth in a different 
 position from that of any other case of a claim against the 
 Commonwealth ? When you consider what it is we ask, I 
 think you will see that if there is any peculiarity in this 
 case, it is the strength of the right to ask you to pass a bill 
 granting the relief for which we pray. The reply of the 
 learned Attorney-General to that question was substantially 
 this, that there was nothing in this claim which entitled us to 
 ask you to authorize us to go into court different from any other 
 case, and as I understood him, he also pressed upon your con- 
 sideration that there was no reason in anything which had oc- 
 curred that should lead you to consider this case as haying 
 any peculiarity ; and I understood him further to take the 
 position, that the Commonwealth was not in the habit of being 
 dragged into court. 
 
 I am not, of course, very familiar with the practice in Mas- 
 sachusetts, but my investigation of this subject has led me to 
 see one thing, and that is that your State from the year 1804 
 has recognized its liability to be brought into court as a defend- 
 ant in cases of mortgages of real estate. The act of 1804 pro- 
 vides the exact method in which this shall be done. This, I 
 take it, although I am not sufficiently familiar with the history 
 of the State to understand out of what circumstances this 
 legislation grew, but I take it for granted that the State must 
 have been in the habit of loaning money upon mortgages or 
 selling land and taking mortgages for the purchase-money. 
 Now, your act of 1804 most carefully guards the rights of re- 
 demption, and gives the mortgagor the right to go into the 
 Supreme Court of the county of Suffolk and file a bill, and 
 there have the question determined as to how much is due 
 upon the mortgage. 
 
 ( 85 ) 
 
86 
 
 Attorney- General Marston : — That is only where the 
 parties have disagreed, and that is exactly the proposition I 
 assert here. When we have got to the point where we disa- 
 gree, it would be time enough to talk of going into court. 
 
 Mr. Bullitt : — Well, we do disagree ; there can be no 
 doubt of that proposition certainly, whatever else there is 
 doubt about. 
 
 I wish now to call your attention to that which seems to me 
 to settle the contract under which we have to ask you for the 
 relief which we are seeking. By the Act of 1862, and you will 
 pardon me for calling your attention to it for a moment, in the 
 second section it is provided : — “ The Troy and Greenfield 
 Railroad Company is hereby authorized to surrender to the 
 State the property now mortgaged ; but the right of redemp- 
 tion shall not be barred until ten years have elapsed after said 
 road and tunnel are completed, and the same opened for use.” 
 What did that section mean ? What was understood by the 
 persons who composed the then members of the Legislature ? 
 What was understood by the persons who were to surrender 
 that property ? Can you suppose for a moment that if 
 the persons interested in the Troy and Greenfield Railroad 
 Company had been told then that the law would stand as it is 
 now understood to be, that is, that they had no right to redeem 
 unless at the pleasure and good-will of the State, that the State 
 could refuse to allow the redemption, and that when the State 
 should be brought into court for the purpose of having the 
 right just given by this statute asserted, that they would be 
 met by the assertion that they had no right to go into the 
 Supreme Court of the State to assert that right ; do you sup- 
 pose for a moment that the company would have accepted that 
 act and surrendered their property ? 
 
 The learned Attorney-General has referred to this company 
 as being a myth, existing only on paper, as probably having 
 no existence. Gentlemen, the people who have brought me 
 into this case, citizens of Pennsylvania, believing that when 
 they came into the State of Massachusetts for the purpose of 
 investing their money on the faith of the State, they were 
 investing it upon a faith on which all men could rest and 
 could go to sleep in quietness, these men know that the com- 
 
87 
 
 pany has an existence to the extent of hundreds of thousands 
 of dollars. I recollect that at the time the work was being 
 prosecuted on the Hoosac Tunnel, a gentleman who was about 
 loaning money to the contractors mentioned to me the fact 
 that he was about to make the loan, a very considerable sum 
 of money. I said to him, “ Have you any security ?” “ I 
 
 expect,” he said, “ to be paid when the State of Massachusetts 
 pays the contractors.” I said to him, and I well recollect it now, 
 “ You can rely upon what the State of Massachusetts has agreed 
 to do.” Gentlemen, that sentiment has pervaded our people, 
 and I believe it has pervaded the people of the United States. 
 Over and over again you have been pointed to as a State, and 
 one of the few States, that during the war, when gold had 
 gone up one hundred or two hundred per cent., instead of 
 doing as was done in many other places, and taking advan- 
 tage of this rise in the price of gold, or rather this rise in the 
 price of money, whichever you choose to call it, always paid 
 your interest, as I understand it, in gold. All men who have 
 dealt with the State of Massachusetts, and I may go further 
 than that and say with the city of Boston, have felt that they 
 were dealing with men who, as individuals or as communities, 
 or as a State, when they pledged their faith, meant to keep 
 that faith, and the men who accepted that act from the State 
 of Massachusetts, promising that right of redemption for ten 
 years, believed not only that they were going to have the 
 right to redeem accorded to them, but that if there was a dis- 
 pute as to that right, they would have the right as other citi- 
 zens of enforcing that claim as mortgagors. And why did 
 they believe so ? You turn to your Revised Statutes, and these 
 words are to be found under the head of ‘ ‘ Mortgages to the 
 Commonwealth :” — “ If the Treasurer and the person applying 
 to redeem the mortgage disagree as to the sum due, the person 
 applying may bring a suit in equity against the Commonwealth, 
 for the redemption,, in the Supreme Judicial Court for the 
 county of Suffolk.” 
 
 The men who surrendered that property, the Legislature of 
 Massachusetts itself, your highest judicial or official authori- 
 ties (I will not say judicial authorities, but your highest offi- 
 cial authorities), in that day believed, that under that act the 
 
88 
 
 Troy and Greenfield Railroad Company would have the right, 
 in case of a difference, to apply to the Supreme Court of 
 Massachusetts to settle the dispute. Now, it turns out, to the 
 surprise, I suppose, of every man who knew anything about it, 
 that when the case is argued in the Supreme Court on the bill 
 which was filed by the Troy and Greenfield Railroad Com- 
 pany, your Supreme Court has decided that there was no 
 jurisdiction. 
 
 What, then, do we ask ? We ask that you shall place us 
 just where we supposed we were when that act was passed. We 
 ask you to place us -just where every other mortgagor of real 
 estate in the State of Massachusetts stands. We ask you to 
 go back and correct that which now appears to have been a 
 mistake on the part of all the parties to this contract. And 
 does not that answer the question ? There is no reason why 
 you should not give us this remedy against the Commonwealth. 
 None can be given. Then when you turn to your own stat- 
 utes, and when you see what the Act of 1862 is and what its 
 provisions are, and when you find that was made under the 
 then existing or supposed existing state of the law, does not 
 that appeal in the very strongest manner to your legislative 
 judgment as to the right we have to ask you for this relief, and 
 as to your duty to confer it upon us ? And why should 
 it not be done ? Do you feel that as a committee of the Legis- 
 lature you are prepared to go into all the questions which 
 would be raised in reference to the redemption of this prop- 
 erty ? It is said by the learned Attorney-General, and may be 
 said with a great deal of force, that there may be expenditures 
 upon that property which properly are chargeable to us. I 
 do not mean to say that that is so, but there is a principle in 
 the law called the doctrine of equitable estoppel. The doc- 
 trine of equitable estoppel is simply this, that if I see a man 
 enter my property without right, and make heavy expenditures 
 upon it, or if I see him going on making heavy expenditures, 
 I may be debarred from charging him with that. Of course 
 these questions are to be tried according to the purest princi- 
 ples of equity. But then it requires that it shall be weighed 
 with a very nice and skillful and careful eye to the rights of 
 all the parties, and after hearing the testimony which may be 
 
89 
 
 given upon both sides. Are you prepared to do this ? I take 
 it that the province of a legislature is hardly to sit and hear 
 a case of that character. Therefore, independent of the 
 questions which I have been submitting to you in reference to 
 our rights growing out of this act, and the supposed state of 
 the law at that time, it seems to me that this is eminently a 
 case to be referred to the court to determine the rights of the 
 parties, and recognizing, as we do, the fact that questions of 
 this kind may grow out of it, that these questions do require 
 the nice and critical adjustment of which I have spoken, we 
 ask you to do what ? Simply to give us the privilege of hav- 
 ing these questions determined by the highest court in your 
 State, and one upon which I am sure that you and every one 
 in your State can rely with the utmost confidence as to the 
 justice and propriety and legal wisdom of the decision at 
 which it may arrive. 
 
 I do not propose, gentlemen, to go into the questions which 
 have been dilated upon by the learned Attorney-General in 
 reference to the character of this legislation or its history. I 
 know nothing about it. I am told that one of the gentlemen 
 to whom he referred, Mr. Lincoln, was a man of high charac- 
 ter and repute. 
 
 Attorney-General Marston: — He was, sir, a man of 
 the highest character and repute, and so simple in his charac- 
 ter that an adroit man misled him before he was aware of it. 
 
 Mr. Bullitt: — I know nothing of that, nor anything of 
 that which was said by the learned Attorney-General with 
 reference to the legislation of that day. I have never been a 
 member of any legislative body, but I have known a great 
 deal of some of the legislatures which have become a byword 
 in this country, and I have known this that, in many cases 
 where legislatures have been the most traduced, they have 
 been the freest from censure. It is a very easy thing, and a 
 very natural thing, when it suits our purpose, to cast slurs on 
 those who have done that which may be unacceptable to us, 
 and I have always felt that that wholesale denunciation of 
 men and of legislative bodies was unfair and unjust. 
 
 But whether the Troy and Greenfield Railroad Company 
 has been guilty of sins in the past ; whether it has done that 
 
90 
 
 which is attributed to it or not, is not, gentlemen, for you to 
 determine. The question for you to determine, gentlemen, is 
 this : Is there, in the circumstances that have been presented 
 to you, that which appeals to your sense of legislative duty, 
 and requires you to give us the remedy which we ask in this 
 case ? It is admitted that we have a right ; it is admitted that 
 it is the duty of the State to recognize the right in some form. 
 In what form will you give it to us ? Are you prepared to 
 enter into these minute questions of which I have spoken ? 
 Are you prepared to say what are the rights of the State, or 
 what our rights are ? Can you do better than to refer this 
 question, as I said before, to your highest judicial tribunal, 
 and is not that your duty ? Have you the right as members 
 of the Legislature of Massachusetts, and members of this 
 Commonwealth, to leave this question to float upon the future ? 
 
 This Hoosac Tunnel, in my judgment, however much it may 
 have been abused, is a matter of immense importance to the 
 State of Massachusetts. Any man who will go back to the 
 history of the city of New York will see that the Erie Canal 
 was the beginning of its prosperity. The State works which 
 brought the Western trade into Pennsylvania were what built 
 up the city of Philadelphia. You of the city of Boston are 
 now struggling in competition with other Atlantic seaboard 
 cities for the Western trade. It is through that Hoosac Tun- 
 nel that your principal trade is to come, and day by day and 
 year by year it is becoming more and more important ; and I 
 submit to you that the sooner this question is settled, the wiser 
 it will be for all parties. The learned Attorney-General has 
 said, “ Why don’t we present our claims ?” We are prepared 
 to do so. We are not going to ask anything unreasonable, and 
 we do not seek anything unreasonable. If the State in any 
 form will meet us, there is no difficulty about that. I am pre- 
 pared to say to-morrow that the company will meet any officer 
 of the State who is prepared to adjust this business ; but that 
 must come in some other form. What we are asking you now 
 to do, is to consider the question whether you have not the 
 right, and whether it is not your duty, to give us the relief 
 which we ask in this bill. 
 
91 
 
 Mr. Chairman and Gentlemen : 
 
 In conclusion, I will only say that we ask to redeem our 
 property, not relying exclusively, as the argument of the 
 Attorney-General seems to assume, on the Act of 1862, but 
 relying on the terms of our several mortgages, all of which 
 were made before the Act of 1862 was contemplated, and also 
 upon the provisions contained in that act. This act, by its ac- 
 ceptance by the company, and the surrender of its property 
 as therein provided, constitutes the last and final contract be- 
 tween the parties. 
 
 We ask for a remedy to enforce our rights under an exist- 
 ing contract. That we have these rights the Attorney- Gene- 
 ral does not deny or question. The only question is as to the 
 remedy. 
 
 The questions to be decided are, as stated in our petition, 
 purely legal questions, which can only be properly determined 
 in a court of justice. 
 
 The Commonwealth of Massachusetts, in common with 
 every other civilized government, acknowledges the duty of 
 furnishing a remedy by process of law to its citizens or sub- 
 jects for the determination of all questions growing out of con- 
 tracts to which it is itself a party. 
 
 We only ask what Massachusetts has agreed to give us, and 
 what she cannot withhold without making the Troy and 
 Greenfield Railroad Company an exception to the rules appli- 
 cable to all her other citizens or subjects who have claims 
 against her founded on contract. 
 
 I shall not take up your time any longer. It does not seem 
 to me that there can be any question or that there ought to be 
 any question about it. We ask nothing more than that which 
 we supposed we had. I do not see how the Commonwealth of 
 Massachusetts can give us anything less than we ask, which is 
 the simple privilege of having our rights determined by your 
 highest judicial tribunal. 
 

Supreme Judicial Court for the Common- 
 wealth, Suffolk. 
 
 IN EQUITY. 
 
 The Troy and Greenfield Railroad Company 
 
 vs. 
 
 The Commonwealth of Massachusetts. 
 
 POINTS OF ARGUMENT FOR COMPLAINANTS. 
 
 The Troy and Greenfield Railroad Company was in- 
 corporated by an act of the Legislature of Massachu- 
 setts, approved loth May, 1848, with authority to build 
 a railroad in the State of Massachusetts to connect with 
 a railroad to be constructed from the city of Troy, in the 
 State of New York. To enable the company to con- 
 struct the Hoosac Tunnel, the Legislature of Massa- 
 chusetts, by an act approved 5th April, 1854, authorized 
 a loan of the State credit to the amount of $2,000,000; 
 and to secure the payment, a mortgage was executed 
 and delivered by the corporation on the 28th July, 1855. 
 
 By an act of April 4th, i860, the terms of the loan 
 were modified, and the Troy and Greenfield Railroad 
 Company was required to execute a further bond and 
 mortgage, and was authorized to purchase the property 
 and franchises of the Southern Vermont Railroad Com- 
 pany, a corporation created by the State of Vermont. 
 In pursuance of this authority, the Troy and Greenfield 
 
2 
 
 Railroad Company purchased the railroad of the South- 
 ern Vermont Railroad Company on the 2 1st April, i860, 
 and on the same day executed a mortgage thereon to 
 the Commonwealth of Massachusetts. Other mortgages 
 upon its property for the more effectual securing the re- 
 payment of the loan were executed by the corporation 
 to the Commonwealth on the 6th July, i860, and 5th 
 April, 1862; and upon the 28th April, 1862, an act was 
 passed, entitled “An act providing for the more speedy 
 completion of the Troy and Greenfield Railroad and 
 Hoosac Tunnel,” whereby provision was made for the 
 surrender of the railroad, tunnel, franchises, and other 
 property to the Commonwealth, it being specially stipu- 
 lated in the second section of the act that “ the right of 
 redemption shall not be barred until ten years shall have 
 elapsed after said road and tunnel are completed and the 
 same open for use.”* 
 
 Under the conditions and engagements of this act, the 
 Commonwealth of Massachusetts obtained a surrender 
 of possession from the Troy and Greenfield Railroad 
 Company, and completed the railroad and tunnel, and 
 opened the same for use about the 30th June, 1876. 
 
 In December, 1878, the Troy and Greenfield Railroad 
 Company applied to the Treasurer of the Commonwealth 
 of Massachusetts for an account of the indebtedness due 
 to the Commonwealth under the several mortgages men- 
 
 * Section 2. The Troy and Greenfield Railroad Company is hereby 
 authorized to surrender to the State the property now mortgaged, but the 
 right of redemption shall not be barred until ten years shall have elapsed 
 after said road and tunnel are completed, and the same open for use. 
 The said commissioners shall immediately, in the name of the Common- 
 wealth, take complete possession under the mortgages to the Common- 
 wealth, given by the Troy and Greenfield Railroad Company, of all 
 property, rights, and interests intended to be conveyed by said mortgages, 
 or either of them, and then shall, without unnecessary delay, cause the 
 said railroad to be completed and put into running order, and supplied 
 with suitable depots, turntables, and other usual and necessary appliances 
 for the reception of freight and passenger cars, from the eastern terminus 
 of the Troy and Greenfield Railroad to the Hoosac Tunnel. 
 
3 
 
 tioned, and offered to pay the amount that would be 
 found due. The treasurer replied that he did not feel 
 authorized by law to state an account and fix the amount 
 to be paid in redemption of the mortgages held by the 
 Commonwealth, and thereupon this bill was filed praying 
 for an account, and tendering repayment of the amount 
 that should be found to be due. A demurrer having been 
 interposed on behalf of the Commonwealth, the ques- 
 tion is, whether this court has jurisdiction. 
 
 It is, of course, conceded that suit can not be main- 
 tained against a sovereign State unless permission has 
 been given by statute. But, in coming to the considera- 
 tion of the acts of the legislature bearing upon the 
 question, it is proper to keep in mind that this is simply a 
 bill for an account, and for redemption of property, belong- 
 ing to the complainants and held by the Commonwealth, 
 as security for an indebtedness, repayment of which is 
 tendered in the bill. If the amount is not disputed, then 
 the Commonwealth would be in the position of retaining 
 possession of what did not belong to it, simply by the right 
 of might. If the amount is disputed, then a question of 
 account arises, which is exclusively a judicial question, 
 and peculiarly so, if “ the principles upon which the 
 account shall be made” are in dispute or doubt. The 
 property belongs to the complainants as the equitable 
 owners, and is only held in pledge or mortgage, and 
 part of it is in another State. 
 
 It will be seen that this case has nothing in common 
 with that of Briggs vs. The Light-Boats, 1 1 Allen, where 
 the property in question was used by the Government 
 for public purposes. Even in the case of a municipal 
 corporation, the property held for public uses, such as 
 school or court-houses, water-works or highways, could 
 not be taken in execution any more than the light-ships 
 or vessels of war, or parks of artillery of the National 
 Government. This is, however, simply a bill to redeem 
 
4 
 
 private property which does not differ, for the purposes 
 of this case, from a factory or farm ; and jurisdiction of a 
 bill to settle the accounts can be entertained and exer- 
 cised by the court, without in any manner interfering with 
 the prerogatives or functions of Government. It is 
 true that such jurisdiction must have been conferred by 
 legislation ; but the statutes to which reference will be 
 directed are broad enough in their language and scope 
 to give it ; and the real question is whether they are to 
 be construed in a narrow and technical spirit, or liberally 
 and with a desire “to advance the remedy.” 
 
 The question is sometimes discussed as if it were 
 derogatory to the dignity of the sovereign to be sued ; 
 but even in England, where it is the theory of the law 
 that the king is the fountain of justice, and, that “ to know 
 of any injury and to redress it are inseparable in the royal 
 breast,” so that it might have been plausibly contended 
 that no remedy by law was necessary or even possible, 
 it was recognized centuries ago that his true dignity 
 would be best maintained by providing a means whereby 
 the subject could assert and establish his rights. As a 
 matter of consistency, it was well enough to invent the 
 courtly fiction that “ injuries to the rights of property can 
 scarcely be committed by the crown without the inter- 
 vention of its officers, for whom the law in matters of 
 right entertains no respect or delicacy, but furnishes 
 various methods of detecting the errors or misconduct 
 of those agents by whom the king has been deceived 
 and induced to do a temporary injustice ; ” but still, as 
 Blackstone says, “Whenever it happens by misinformation 
 or inadvertence the crown hath been induced to invade 
 the private rights of any of its subjects, though no action 
 will lie against the sovereign (for who shall command 
 the king?) yet, the law hath furnished the subject with 
 a decent and respectful mode of removing that invasion, 
 by informing the king of the true state of the matter in 
 dispute ; ” and he cites the authorities to the effect that 
 
5 
 
 when the judgment of quod manus amoveantur was ren- 
 dered, “by such judgment the crown is instantly out of pos- 
 session!' 
 
 It is true that a petition of right is framed and treated as 
 an appeal to grace, but eminent judges have maintained 
 that it could not lawfully be denied. In the case of Ryers 
 vs. Duke of Wellington, 9 Beav., 600, Lord Langdale 
 said: “lam far from thinking that it is competent to 
 the king, or rather to his responsible advisers, to refuse 
 capriciously to put into a due course of investigation any 
 proper question raised on a petition of right. , The form 
 of the application being, as it is said, to the grace and 
 favor of the king, affords no foundation for any such 
 suggestion.” 
 
 Chief Justice Jervis said (2 El. & Bl., 856) that “in the 
 case of a petition of right it had been the practice of late 
 years at the Home Office, under a great authority, to 
 endorse ‘ Let right be done,’ as a matter of course, with- 
 out even referring the case to the attorney-general, and 
 that in his judgment this use of the prerogative by the 
 subject as his protection against abuse could not be 
 abridged.” 
 
 Whatever doubts may have existed before have been 
 removed by the late statute of 23 & 24 Viet., ch. 34, 
 and some of the remarks of Blackburn, J., in the recent 
 case of Thomas vs. The Queen, L. R., 10 Q. B., 31, in 
 which it was held that a petition of right will lie for a 
 breach of contract resulting in unliquidated damages, 
 are instructive as showing how the general question is 
 now regarded in that country. 
 
 “We must observe as to this last argument, that the 
 moral effect of such judgment, though it could not be 
 enforced, must at all times have been great ; and without 
 adopting the whole of the polite fiction of the law, which, 
 as stated by Blackstone, 2 Com., page 225, presumes 
 that to know of any injury and to redress it are insepa- 
 rable in the royal breast, we may say that at all times 
 
6 
 
 the refusal of the crown to pay its just debts was much 
 more likely to be based on a sincere or pretended denial 
 on the part of the crown’s advisers of the justice of the 
 debts, than on a barefaced avowal of an intention to avail 
 themselves of the power to refrain from doing right. 
 * * * * * * In Comyns’ Digest, 
 
 Prerogative, D., 78, it is said that petition lies if the king 
 does not pay a debt, wages, &c.; citing Lord Somers’ Ar- 
 gument, 85 ; and Chief Baron Comyns expresses no 
 doubt as to the soundness of the doctrine thus cited by 
 him. It appears in Macbeth vs. Haldeman, 1 T. R., at 
 page 178, that Lord Thurlow and Buller, J. (both obiter 
 it is true), expressed an opinion that a petition of right 
 lay against the crown on a contract; and a similar opinion 
 seems to have been expressed by the Barons of the Ex- 
 chequer in Oldham vs. Lords of the Treasury, 6 Sim., 
 220, and in Baron de Bode’s Case, 8 Q. B., 274, in which 
 the point was raised, though not decided. Lord Den- 
 man declares i an unconquerable repugnance to the sug- 
 gestion that the door ought to be closed against all re- 
 dress and remedy a doctrine much resembling what 
 Lord Somers calls Lord Holt’s ‘ popular opinion,’ that 
 if there be a right there must be a remedy.” 
 
 In accordance with these views, the Court of Claims 
 has been established by Congress to hear and determine 
 all claims against the Government of the United States; 
 and if the Legislature of Massachusetts has not provided 
 a remedy through the courts for the adjudication of the 
 questions raised by this bill, it has fallen short of its 
 manifest duty. They are purely judicial questions, and 
 it is declared by the fundamental law that “ in the gov- 
 ernment of this Commonwealth, the legislative depart- 
 ment shall never exercise the executive and judicial 
 powers, or either of them ; ” and that “ every subject of 
 this Commonwealth ought to find a certain remedy by 
 having recourse to the laws for all injuries or wrongs 
 
7 
 
 which he may receive in his person, property, or char- 
 acter.” 
 
 It is submitted that such remedy has been given by 
 the General Statutes relating to the subject. It being 
 the practice of the Commonwealth at that time to make 
 loans upon real estate, the act of 1804 was passed,* mak- 
 ing provision for the settlement of controversies between 
 the mortgagor and the Commonwealth. This act was 
 substantiaily re-enacted in the Revised Statutes, chapter 
 107, and General Statutes, 140; though the words “real 
 estate” are omitted in the latter.f 
 
 * Chapter 103, 1804. 
 
 Section i . Be it enacted by the Senate and House of Representatives in 
 General Court assembled, and by the authority of the same. That whenever 
 any mortgagor who shall have mortgaged any real estate to the Common- 
 wealth, his executors, administrators, heirs, or assigns shall pay into the 
 treasury the full sum due on such mortgage, the treasurer may, and it shall 
 be his duty to sign and seal a discharge of such mortgage and a release 
 and quit-claim to the estate therein mentioned to be granted, and to 
 acknowledge the same before a justice of the peace, which deed, recorded 
 in the registry of deeds for the county where such estate is situate, shall 
 effectually discharge such mortgage to all intents and purposes. * * 
 
 Sec. 2. And be it further enacted, That whenever there shall be a dis- 
 agreement between the treasurer for the time being and the person apply- 
 ing to redeem any real estate mortgaged to the Commonwealth as to the 
 sum equitably due on' such mortgage, the person so applying and having 
 a right to redeem such estate, may file a bill in equity for the redemption 
 thereof, in the Supreme Judicial Court, in the county of Suffolk, and the 
 same court shall cause an attested copy of such petition with a summons 
 thereon to appear at the next term of said court in said county, to be served 
 fourteen days before the commencement thereof on the treasurer, who 
 is hereby authorized in behalf of the Commonwealth to appear in said 
 court and answer to such petition, and the said court within said county 
 shall proceed to hear the parties, and shall determine and adjudge what 
 sum is- justly due on said mortgage to the Commonwealth, and the treasu- 
 rer shall be empowered and it shall be his duty to accept the sum 
 adjudged by said court to be due on said mortgage, and upon receiving 
 the same, to discharge and release such mortgage in manner prescribed 
 in the first section of this act. 
 
 f Chapter 140, General Statutes. 
 
 Section 45. When a mortgage is made or assigned to the Common* 
 wealth, the treasurer may demand and receive the money due, and upon 
 payment shall make and acknowledge a discharge of the mortgage, &c. 
 
8 
 
 Meanwhile the Commonwealth had undertaken to 
 assist her railroads by loans of money or credit, and the 
 Revised and General Statutes provided a complete sys- 
 tem of legislation in respect to the mortgages given to 
 secure such loans, as to the manner and effect of their 
 record and the like ; and the one hundred and twenty- 
 eighth section of the sixty-third chapter of the General 
 Statutes, which re-enacts, in effect, the act of 1857, gives 
 to the Supreme Judicial Court, and each of the justices 
 thereof, jurisdiction in certain specified cases, “ and of all 
 questions arising out of railroad mortgages 
 
 Now, if sections 45-48 of chapter 140 of the General 
 Statutes be held to apply to real estate only, though there 
 is no more significant proof of a change of intention than 
 a change in old and familiar phraseology, this case would 
 fall within the law, so restricted. This mortgage con- 
 veys the real estate of the complainant specifically and 
 by name;f and as the only object of the bill is to liqui- 
 
 * Section 128. “ The Supreme Judicial Court, and each of the justices 
 thereof, shall have full equity jurisdiction, according to the usage and prac- 
 tice of courts of equity, of all cases arising under the three preceding sec- 
 tions, and of all questions arising out of railroad mortgages, and may, in a 
 summary manner, remove any trustee under a railroad mortgage, whether 
 such trustee is in possession of the road or not, and appoint a new trustee 
 in his stead, whether such trustee is elected by the bondholders or cred- 
 itors, as provided in said section.” 
 
 j- Now, therefore, the said Troy and Greenfield Railroad Company, a 
 corporation established by law, in consideration of two millions of dollars, 
 paid- or to be paid by the Commonwealth of Massachusetts, according to 
 the provisions of the several acts relating thereto, does hereby give, grant, 
 bargain, sell, convey, and confirm unto the said Commonwealth of Massa- 
 chusetts, the entire railroad of said corporation, and all its franchises and 
 property whatsoever, and doth hereby ratify and confirm all bonds, mort- 
 gages, and other conveyances and assurances heretofore executed and 
 delivered by said corporation to said Commonwealth. The intent and 
 meaning hereof being to convey and confirm as aforesaid to said Com- 
 monwealth, all lands, buildings, and tene?nents, and all interests and ease- 
 ments therein that said corporation now has, or hereafter may acquire 
 within the limits of the location made and filed as aforesaid, and to con- 
 firm all former conveyances, bonds, and mortgages heretofore made, as 
 aforesaid. 
 
9 
 
 date the amount due, it comes within the letter of the 
 statute, as the indebtedness is on the real estate, and a 
 decree for the redemption of that much will answer all 
 purposes, as it can not be assumed that the Common- 
 wealth will not “ remove its hands” from all the proper- 
 ty when paid the debt to secure payment of which it 
 holds on to the possession. If a mortgage should be 
 taken on a mill, jurisdiction would not be ousted by the 
 fact that it covered fixtures and tools, commonly re- 
 garded as personal property. 
 
 But the words of the one hundred and twenty-eighth 
 section of the sixty-third chapter fully cover the case. 
 It may be that railroad mortgages were not thought of 
 when the act of 1804 was passed, and that the act of 
 1857, standing by itself, would more naturally be held to 
 refer to mortgages other than those to the Common- 
 wealth ; but it is submitted that the General Statutes are 
 to be construed as if passed uno flatu and as a whole. 
 The one hundred and twenty-eighth section of the sixty- 
 third chapter interprets the sections of chapter 140, and 
 refers to the system there established. The jurisdiction 
 conferred is to be exercised as directed in chapter 140, 
 but if the clause in italics was not intended to give 
 authority to the court in cases of mortgages to the Com- 
 monwealth, it has no meaning. If stricken out, the grant 
 of power would cover every “ question arising out of 
 railroad mortgages ” — to trustees. In i860, railroad 
 mortgages to the Commonwealth were common enough. 
 They were much more likely to give rise to dispute than 
 any others ; and the legislature was establishing a com- 
 plete code for the regulation of all kinds of mortgages 
 to the Commonwealth, including those upon railroads. 
 In every other respect adequate provision is made, and 
 it is not likely that so clear and plain a casus omissus 
 would occur. So far from it being reasonable to con- 
 strue each chapter by reference to the early statute from 
 
IO 
 
 which it is taken, for the purpose of limiting and restrict- 
 ing the jurisdiction of the court, it is much more natural 
 to treat the entire body of statutes as a complete code, 
 intended to provide for every requirement at the time of 
 its adoption. If so, there is no presumption that it was 
 the purpose to withhold the means of redress. On the 
 contrary, the legal presumption in such a case is that the 
 legislature intended to give jurisdiction to the courts in 
 all cases in which it was proper that it should be given, 
 if the language will bear it. 
 
 Sections 120 to 13 1 are placed under the head of bonds 
 and mortgages, and while sections 125, 126, and 127 relate 
 to mortgages to trustees for the benefit of bondholders, 
 the one hundred and twenty-eighth section gives juris- 
 diction of all cases arising under the three preceding 
 sections, and of all questions arising out of railroad 
 mortgages; while sections 129, 130, and 13 1 go on to 
 regulate the manner in which mortgages to the Com- 
 monwealth should be made, what property should be 
 bound by them, and how they are to be recorded. The 
 burden is therefore upon him who contends that the 
 clause “all questions arising out of railroad mortgages ” 
 does not include those mortgages to the Commonwealth, 
 which must at the time have been in the mind of the 
 draughtsman, inasmuch as they were the subject-matter 
 of the three sections immediately succeeding. The lan- 
 guage of Lord Westbury in the case of The Duke of 
 Newcastle vs. Morris, L. R., 4 E. & I. App., 661-674, is 
 directly in point. By the sixty-ninth section of the act 
 of 1861, all debtors were made liable to the bankrupt 
 laws : nothing was said in the act to reserve to debtors 
 who had their privilege from Parliament, their privilege 
 from personal arrest ; and it was held that the statute 
 included all debtors whatever. Lord Westbury says : — 
 
 “ My Lords, let us first consider what is the onus that lies on the appel- 
 lant. The onus is this, that he must first prove to your Lordships con- 
 
II 
 
 clusively that when we find in the act of 1861 the positive enactment that 
 all debtors whether traders or not shall be subject to the provisions of this 
 act,’ the words ‘ all debtors,’ do not include debtors having privilege of 
 Parliament. The words are positive : they are without any exception ex- 
 pressed. He must show, therefore, by argument as conclusive as the 
 positive words of the enactment itself, that such an exception is necessarily 
 implied.” 
 
 This view is confirmed by the language of the act 
 of 1862, which, as a legislative contract, should be 
 construed in the sense in which the promisee had 
 the right to understand it. The second section stipulates 
 that the “ right of redemption shall not be barred until 
 ten years shall have elapsed after said road and tunnel 
 are completed and the same open for use.” It uses 
 technical language, which must receive a technical 
 meaning. The phrase right of redemption imports, ex 
 vi termini , a remedy by judicial proceedings; and as 
 there can be no right where there is no remedy, this 
 act of 1862 is a legislative interpretation of the seve- 
 ral chapters of the General Statutes above cited. A 
 right which can not be asserted or established, in invitum , 
 is no right at all. A redemption- of mortgage property 
 can only be made by the ascertainment and payment of 
 the debt arfd a compulsory assertion of the right of pos- 
 session. To suggest “ special legislation ” as the remedy 
 contemplated is worse than mockery. The question in- 
 volved is not legislative, but judicial. It is one which 
 the Legislature of Massachusetts has no constitutional 
 right to deal with. It is one which it is part of the 
 jurisdiction of a court of chancery to entertain and deter- 
 mine. It was a right that was given, and not a permis- 
 sion to sue for favor from the members of a legislature. 
 Such being its character, nothing is presumed against the 
 Commonwealth in holding that jurisdiction to entertain 
 a bill to settle this account is given in these statutes. The 
 Commonwealth has engaged in the business of lending 
 money upon the security of private property ; and having 
 
12 
 
 embarked in trade is, as to this business, to be treated as 
 a trader, or the suit is to be regarded not as an action 
 against the State, but merely as a proceeding in rem. 
 
 Story says : — 
 
 It is a sound principle, that when a government becomes a partner in 
 a trading company, it divests itself, so far as concerns the transactions of 
 that company, of its sovereign character, and takes that of a private citizen. 
 Instead of communicating to the company'its privileges and prerogatives, 
 it descends to a level with those with whom it associates itself, and takes 
 the character which belongs to its associates, and to the business which is 
 transacted. Thus, many States in the Union, which have an interest in 
 banks, are not suable even in their courts. A State which establishes a 
 bank, and becomes a stockholder in it, and gives it a capacity to sue and 
 be sued, strips itself of its sovereign character, so far as respects the trans- 
 actions of the bank, and waives all the privileges of that character. 
 
 As a member of a corporation, a government never exercises its sover- 
 eignty. It acts merely as a corporator, and exercises no other powers in 
 the management of the affairs of the corporation, than are expressly given 
 by the incorporating act. 
 
 The United States held shares in the old Bank of the United States ; 
 but the privileges of the Government were not imparted by that circum- 
 stance to the bank. 
 
 The United States were not a party to -suits brought by or against the 
 bank, in the sense of the Constitution. So, with respect to the present 
 bank, suits brought by or against it are not understood to be brought by * 
 or against the United States. The Government, by becomings corporator 
 lays down its sovereignty so far as respects the transactions of the corpo- 
 ration ; and exercises no power or privilege which is not derived from the 
 charter.* Story on the Constitution, section 1687, page 521. 
 
 And so if a sovereign shall acquire landed estates in 
 England, and enter into any transaction respecting them, 
 as a contract of sale or a mortgage, it seems to be con- 
 ceded that a court of equity might compel him specifi- 
 cally to perform his contract. Duke of Brunswick vs. 
 King of Hanover, 2 H. L. C., I, 23. And this doctrine 
 was enforced by Mr. Justice Grier, in the case of Elliott 
 vs. Van Vorst, 3 Wallace, Jr., 299, where he sustained a 
 
 *See U. S. Bank vs. Planters’ Bank of Georgia, 9 Wheat. R., 907, 908. 
 Also, Davis vs. Gray, 16 Wallace, 203. 
 
r 3 
 
 foreclosure by the Court of Chancery of New Jersey, of 
 mortgage property, the equity of redemption of which 
 had been purchased by the United States to secure pay- 
 ment of a debt ; in the course of his opinion he said : — 
 
 “But it does not follow that when the Government officers purchase 
 land in the name of the United States to secure a debt, as any individual 
 or private corporation might do, that it thus ousts the jurisdiction of the 
 State to tax it, or in any manner affects the liens or rights of mortgagees 
 in such lands. In the mere exercise of a corporate right the Government 
 of the United States can not claim the prerogatives or immunities of a 
 sovereign. She can not compel a mortgagee to the hopeless remedy of a 
 petition to Congress to redeem. The courts of New Jersey can not thus 
 be ousted of their jurisdiction and duty to assist the mortgagee to have 
 his mortgage satisfied, and the mortgaged premises sold for that purpose. 
 When the Government, in the exercise of the rights and functions of a 
 civil corporation, purchases lands to secure a debt, the accident of its sov- 
 ereignty in other functions can not be set up to destroy or affect the right 
 of persons claiming a title or lien on the same lands. Thus, when the* 
 Government of the United States became a partner in a trading corpora- 
 tion, such as the United States Bank, it divested itself, so far as concerned 
 the transactions of that company, of its sovereign character, and took 
 that of a citizen ; consequently, its property and interests were subject to 
 the decrees and judgments of courts equally with that of its copartners. 
 * * * *’* * * * * 
 
 It may be said there is no precedent in this country for precisely such a 
 case as that before the chancellor. The answer to this may properly be, 
 
 ‘ It is time there was one.’ ” 
 
 So it has been ruled that if a sovereign assumes the 
 character of a trader, and sends a vessel belonging to 
 him to this country to trade here, he must be considered 
 to have waived any privilege which might otherwise 
 attach to the vessel as the property of a sovereign. The 
 Charkieh, L. R., 4 Adm. and Ecc., page 59. In the 
 course of his opinion, Sir Robert Phillimore said (page 
 9 7 )-~ 
 
 “ The universally acknowledged exceptions to the general rule of the 
 sovereign’s immunity, when examined, prove the truth of this proposition. 
 For instance, the exemption from suit is admitted not to apply to immov- 
 able property. One reason may be, that the owner of such property has 
 so incorporated himself into the jural system of the state in which he 
 
14 
 
 holds such property, that the argument of general inconvenience to states 
 from allowing the exemption outweighs the argument from convenience 
 on which the exemption in other matters is bottomed. But another reason, 
 surely, is that which seems to be suggested by Jervis, C. J., in Taylor vs. 
 Best, 14 C. B., 487, 522, that such a suit can be carried on without the 
 necessity of serving process upon the sovereign or of interfering in any 
 way with such personal property as may be requisite for the due discharge 
 of his functions. The exemption must be taken away for one of three 
 reasons, either those which I have suggested, or a third, that the acquisi- 
 tion of immovable property amounts to a waiver of privilege. * * * 
 
 Page 99. I must say, that if ever there was a case in which the alleged 
 sovereign (to use the language of Bynkershoek) was ‘ strenue mercatorem 
 agenSj or in which Lord Stowell says he ought to ‘ traffic on the com- 
 mon principles that other traders traffic’ (1 Dods., at page 339), it is the 
 present case ; and if ever a privileged person can waive his privilege by 
 his conduct, the privilege has been waived# in this case. 
 
 “ It was not denied, and could not be denied after the evidence, that the 
 vessel was employed for the ordinary purposes of trading. She belongs 
 to what may be called a commercial fleet. I do not stop to consider the 
 point of her carrying the mails, for that was practically abandoned by 
 counsel. She enters an English port, and is treated in every material 
 respect by the authorities as an ordinary merchantman, with the full con- 
 sent of her master ; and at the time of the collision she is chartered to a 
 British subject, and advertised as an ordinary commercial vessel. No 
 principle of international law, and no decided case, and no dictum of 
 jurists of which I am aware, has gone so far as to authorize a sovereign 
 prince to assume the character of a trader when it is for his benefit ; and 
 when he incurs an obligation to a private subject to throw off, if I may so 
 speak, his disguise, and appear as a sovereign claiming for his own benefit 
 and to the injury of a private person, for the first time, all the attributes of 
 his character ; while it would be easy to accumulate authorities for the con- 
 trary position.” 
 
 If the General Statutes are interpreted in the light of 
 these principles and authorities, it is believed that the 
 conclusion must be reached that the State of Massachu- 
 setts intended, when taking possession of the railroad, to 
 surrender its sovereignty so far as to allow the corpora- 
 tion the right to appeal to this court, and there assert 
 and establish its “ right of redemption.” 
 
 SAM’L DICKSON, 
 
 For Complainant.