F 74 
 .B4 P13 
 Copy 1 
 
 ARGUMENT 
 
 HON. JOSIAH G. ABBOTT, 
 
 IN BEHALF OF 
 
 THE PETITIONEES 
 
 BEFORE THE 
 
 JOINT SPECIAL COMMITTEE 
 
 OF THE 
 
 fepsiatur^ of llassacfeusHts, 
 
 ON THE 
 
 PETITION OF C. P. TALBOT AND OTHERS, 
 
 PRAYING FOR THE 
 
 REPEAL OF THE ACT OF 1860 FOR THE REMOVAL OF THE DAM 
 ACROSS CONCORD RIVER, AT BILLERICA, 
 
 March 13, 1862. 
 
 I'HONOGKAPHIC REPORT BY MESSRS. YERRINTON' AND BACHKLEK. 
 
 BOSTON: 
 
 WRIGHT & POTTER, PRINTERS, 4 SPRING LANE. 
 186 2. 
 
ARGUMENT 
 
 HON. JOSIAH G. ABBOTT, 
 
 IN BEHALF OF 
 
 THE PETITIONERS 
 
 BEFORE THE 
 
 JOINT SPECIAL COMMITTEE 
 
 fejislature of itassatfettscttj, 
 
 ON THE 
 
 PETITION OF C. P. TALBOT AND OTHERS. 
 
 PRAYING FOR THE 
 
 REPEAL OF THE ACT OF 1860 FOR THE REMOVAL OF THE DAM 
 ACROSS CONCORD RIVER, AT BH.LERICA, 
 
 March 13, 1862. 
 
 PHONOGRAPHIC REPOKT BY MESSRS. YERRINTON AM) HACHKI.EIi 
 
 BOSTON: 
 
 WRIGHT & POTTER, PRINTERS, 4 SPRING LANE. 
 
 18 6 2. 
 

 Gill 
 
f^RGUMENT. 
 
 Mr. Chairman, and Gentlemen of the Committee ;— 
 
 I know you will permit me now to congratulate you, after 
 having spent so long a time, and listened so patiently and care- 
 fully to the evidence and arguments on the one side and the 
 other of this important case, that we have approached so near 
 the close and termination of the hearing, which of necessity must 
 have so severely tested your patience. And I will endeavor, 
 gentlemen, — I say it in all fairness and frankness to you, — I 
 will endeavor to take no larger portion of your time, in 
 addressing to you the remarks which I am called upon to make 
 in closing this case, than is absolutely necessary for the purpose 
 of distinctly putting before you the claims, the arguments, and 
 the positions of the petitioners, which they desire you carefully 
 to examine and consider, believing as the result of such 
 examination and consideration, you will be constrained to 
 recommend what they ask for, a repeal of the law of 18G0, 
 providing for taking down their dam across the Concord River. 
 
 THE GROUNDS OF THE PETITIONERS UNCHANGED. 
 
 And I trust, gentlemen, — and I think I have a right from my 
 experience to say it, — I trust the argument may not seem quite 
 so tedious and quite so wearisome to you as it does to me. For, 
 notwithstanding what my friends have undertaken to charge 
 here, from the opening on the part of my brother Griffin to the 
 close on the part of my friend who addressed you yesterday, 
 [Mr. French,] that we have changed our ground, that we began 
 in 1859 with one position, telling one story, and claiming one 
 result, that we changed in 18G0, putting ourselves upon other 
 grounds, and now, that we have come here, in 1862, still chang- 
 ing our ground, and taking a different position, — I have to say 
 
to you, gentlemen, now, that the great trouble with myself is, 
 and some of your Committee who are of our profession will 
 appreciate it, — that so it is that notwithstanding these com- 
 plaints from the other side, I am again, for the third time, obliged 
 to repeat myself. Having on two different times had the 
 opportunity and the occasion, in the line of my duty, to address 
 other committees and other bodies upon this same subject, I am 
 obliged now to go over again, the third time, with a thrice- 
 told tale. I am again obliged, sir, to repeat myself. And this 
 is really the trouble I am laboring under, not that I am obliged 
 to change and resort to new positions — but that I am again and 
 again obliged to repeat myself, than which, as some of you 
 gentlemen of the Committee know, nothing is more tedious and 
 wearisome to a speaker. I beg of you to give to this matter a 
 little of your time and attention, considering the charges made 
 of change of position, and after you have listened and heard 
 what I shall have to say now, that you will look at the argument 
 made by me last year, which was printed, and which I have 
 never seen from the time it was made till my attention was 
 called to it by my friends on the other side ; and I will agree 
 to abandon this case, gentlemen, if you do not find that the 
 grounds and positions I take here now for my clients are 
 substantially the same grounds and the same positions taken 
 then. 
 
 I trust too, gentlemen, and I desire to say it now in advance, 
 because now, in going over this matter, and in imdertaking to 
 sum up the arguments upon one side and the other, I may happen 
 to pass over many matters that have been put in evidence, and 
 alluded to in the arguments in this case, I trust, gentlemen, that 
 you yourselves will not pass over such matters because I do, but 
 give them all due weight and consideration. There are many 
 and various matters in a case of this kind, vrhere the testimony 
 covers four, five, or six hundred pages, and where the considera- 
 tions are so varied, which have their effect at the time when 
 they are put in, and when they are before the Committee, but 
 which we know it is absolutely and utterly impossible, in the 
 course of an argument in summing up, even to allude to. I 
 only refer to this, gentlemen, to say, that if I do not allude to all 
 the details and minutios of the evidence, I trust your Committee 
 will not consider that it is because I think that part of the case 
 
passed over unimportant. I can only call your attention to some 
 general considerations, some general matters bearing on the 
 subject before you, and leave to you the full and careful exami- 
 nation which I have no doubt you will give, of all that has been 
 put in, on the one side and on the other, bearing upon the 
 subject of your investigation. 
 
 HISTORY OP THE CASE — CLAIM OF THE MEADOW-OWNERS. 
 
 And now, gentlemen, .to come to the case before you. It is 
 exceedingly important, — and I think, in this case, after you 
 have done what I propose to do, you have really examined 
 the whole case, — it is exceedingly important to look at the 
 history of these proceedings, to see how they originated, and 
 to know what the parties asked for who first obtained the 
 passage of the Act, for the repeal of which we are now seeking, 
 and to examine the ground upon which they put their case. 
 
 This matter commenced in 1859. You will see, by referring 
 to the papers, that in 1859, a petition was presented here, 
 signed by the selectmen, in behalf of the citizens of the towns 
 of Sudbury, Wayland and Concord, and, I think also of Bedford 
 and Carlisle, although we have heard very little here from the 
 two last named towns, the petition and claim having been 
 mainly prosecuted by the towns of Wayland and Sudbury, with 
 perhaps some help from the town of Concord. The prayer 
 of that petition was, that a right might be given the petitioners, 
 the owners of the meadows on the Concord and Sudbury 
 Rivers, to prosecute for the injury they had received at the 
 hands of the owners of the dam at Billerica. And now I ask 
 your attention, gentlemen, carefully, to the precise ground 
 upon which action by the legislature was asked for by those 
 petitioners, as you will find it set out in the petition of the 
 several towns ; all the other petitions being merely in aid of 
 their petition ; the petition on which the legislature of 1859 
 appointed a committee to sit during the recess. Now, gentle- 
 men, what was the ground of their complaint? Why did they 
 ask the interference of the legislature ? How did they then 
 put their case ? Why did they then ask the legislature to come 
 to their aid, to interfere, and do any thing? — and I shall have 
 occasion to allude, directly, to what they did ask the legislature 
 to do. Why did they ask the legislature to do something to 
 
relieve them ? Why, sir, at that time, they asked the legisla- 
 ture — and I invoke you to read every word of the main petition 
 and those in aid of it — to come to their aid, and do something 
 to remedy the evils they vs^ere laboring under, because, they 
 said, the legislature in 1793, when they passed the Act incor- 
 porating the Middlesex Canal, had authorized that corporation, 
 under which we claim here, to do an act which resulted in the 
 utter and entire destruction of their property, to the extent 
 of one or two millions of dollars. They invoked the. aid of the 
 legislature, not, sir, upon any ground taken now. My friends 
 claim, here, that I have changed my ground, while in fact the 
 only change is made by them, they now putting their claim 
 upon the ground that there is a dam upon the Concord River, 
 at the Billerica Mills, which prevents improvements in the 
 natural condition of their lands ; while, up to this time, they 
 founded themselves entirely upon the alleged fact that a dam 
 had been raised at Billerica in 1793 and 1828, which raising 
 had flooded and destroyed their meadows, till then very valuable. 
 So it was, they tell us, that, in 1793, by improvident legislation, 
 obtained by means of the lobby and corruption, — a most remarka- 
 ble charge, by the way, to be made against our good fathers of 
 that day, without a particle of proof to sustain it, — an Act was 
 passed creating the Middlesex Canal Corporation, under which 
 those acting under it were enabled legally not only to injure, but 
 substantially to destroy, their property, to the extent of a million 
 of dollars. Farther and worse, they go on to claim, as an addi- 
 tional reason for legislative aid now, that the Act of 1793 not 
 only authorized the destruction of the meadows, but really 
 provided no feasible method of compensation for such destruc- 
 tion, so that, in fact, all this property was so ruined without 
 a cent being paid for it. And this was the strength of the 
 claim for present action : that their property had been injured 
 to the extent of one or two millions of dollars, (a most 
 monstrous exaggeration, as I shall show, shall demonstrate to 
 you hereafter,) by virtue of an Act of the legislature of 1793, 
 which had provided no practical remedy for obtaining compen- 
 sation for such injury, xind so passionately is this charge 
 made, that they even take credit to themselves that they have 
 preserved their loyalty, and remained obedient and law-abiding 
 citizens, under so crushing a load of injustice and tyranny. 
 
I beg your attention, gentlemen, most especially to this claim 
 of the petition, that property had been destroyed under an Act 
 of the legislature, without proper compensation being provided 
 for such destruction, as the very groundwork upon which was 
 to be based the proposed action, then asked for. 
 
 Why, gentlemen, this is the very soul and spirit of the whole 
 petition, the only vitality there is in it; without it, the petition 
 would be but the merest dull and lifeless body, — this, and this 
 alone, is all that breathes life and soul into the claim. " You," 
 they say, " the law making power, the sovereignty of Massa- 
 chusetts, have, by the exercise of that power which could not 
 be gainsaid or resisted, taken from a portion of your citizens 
 their property, and have not provided any compensation for 
 such deprivation. You have injured them to the extent of more 
 than a million of dollars, and so cunningly devised the act by 
 which such injury was worked, that not a cent has ever been 
 recovered or received for such wholesale destruction." There- 
 fore it is, and therefore only it is, as they urge, that the legis- 
 lature are bound in all fairness, and justice, and honor, to come 
 in and furnish some kind of aid, some kind of remedy to these 
 parties who have been injured by their former action. They 
 tell you the Act of 1793, in truth and fact, though not in the 
 letter, was in direct violation of the Constitution, which provides 
 that private property shall not be taken for public uses without 
 due compensation, and therefore you are bound now, however 
 late it may be, to right this injustice. And then, if you leave 
 the petitions and go to the hearing before the legislative 
 committee who sat after the adjournment, and spent some 
 twenty or thirty days, more or less, in investigating the ques- 
 tions arising under those petitions, you find the whole of the 
 testimony was brought to bear upon the claim just referred to. 
 If you have examined the large book in which the evidence is 
 reported — I know some of you were in the legislature of last 
 year, and must have been called on to give it some examina- 
 tion — the whole testimony, iipon the one side and the other, 
 substantially bears upon these questions : Did the Middlesex 
 Canal Corporation in 1798, and again in 1828, raise, under 
 their Act of incorporation, the dam at the Billerica Mills, and 
 by that raising did they flood out the meadows in question, 
 more than three-quarters of which were situate in the towns of 
 
8 
 
 Sudbury and Wayland, as now claimed by my friends on the 
 other side ? Did that corporation, by their act in raising the 
 dam in 1798 and keeping it up from that time> and raising it 
 again in 1828 and so keeping it up down to this day, tlirow 
 back the water upon those meadows which formerly had been 
 dry, and the best lands in the bounds of the two towns, and 
 upon which the hay-making, they told us, " resembled the vint- 
 age in the South of France " ? The claim was, by such raising 
 and consequent flowing, these meadows were reduced to a mere 
 swamp and bog, and that the water was raised in its " ordinary 
 stage two feet at least," more than twenty miles from the dam. 
 The claim was not then, as my friends would now have you 
 believe, that the troubles upon these meadows, which makes 
 them of little value, arose mainly from natural obstructions and 
 artificial causes other than the dam, and that they could not be 
 obviated excepted by its removal ; but the claim, and the only 
 claim, was that the raising of the dam in 1798 and in 1828 had 
 injured the meadows to the extent of one or two millions of 
 dollars, for which remedy ought now to be provided. The claim 
 was that up to 1798 the meadows were most valuable, almost a 
 paradise ; that then, and again in 1828, the Canal Corporation 
 raised their dam under an Act of the legislature, and flooded 
 the water back upon them, not preventing a prospective improve- 
 ment, but doing them a then present injury of great magnitude : 
 indeed, that by such raising and the consequent flooding, they 
 were reduced from the value it was claimed they bore half a cen- 
 tury ago of at least one million dollars, to utter worthlessness. 
 I don't desire, gentlemen, to weary you by reading or referring 
 too much to the voluminous publication of the testimony and 
 petitions, but I must call your attention to one of their claims, 
 made on page sixteen of this petition, where they set forth, in 
 the first paragraph, that " This entire tract, belonging to us, 
 fifty-five or six years ago, together, was worth in the market a 
 million of dollars, and at the present day would be worth two 
 millions of dollars." They had before claimed that it was at the 
 present time of little or no value — indeed, utterly worthless. 
 And then, as a summing up, they go on to say, on the same 
 page, that " this depreciation vjas wholly chargeable to the 3Iid- 
 dlesex Canal Corporation.''^ 
 
But that is only one single instance of what appears in their 
 petition, and in that voluminous report of the evidence.. That 
 is but a general statement of what was claimed and contended 
 for in 1859 ; what was claimed and contended for in 1860, and 
 again in 1861, and what w^as claimed and contended for always 
 until the facts, the experiments which have been made, demon- 
 strate beyond all possibility of doubt, and all peradventure, that 
 the claim is utterly without foundation and utterly baseless, in 
 reference to the greater part of the land in reference to which 
 that claim had been made. 
 
 Well, gentlemen, farther than this, — because, as I said before, 
 it is necessary to pursue this subject and exhaust it, and when 
 we have fairly examined it in all its bearings, and seen precisely 
 on what grounds this legislation of 1860 was asked for, why 
 the Act was passed, we have to a very great extent examined 
 and mastered all there is in this case, — farther than this, I beg 
 you to look at the Report of the legislative committee of 1859, 
 appointed to sit during the adjournment. You will find in the 
 Report of that committee n'o reference to any action which is 
 not based upon the claim of the petition before referred to. 
 They find that the raising of the Middlesex dam, under the Act 
 of the legislature of 1793, was an efficient cause — otlier causes, 
 to be sure, there were — of the injury to this vast quantity of 
 land, 8,000 or 10,000 acres, as they put it. They-find, also, 
 that, in fact, there had never been any compensation under that 
 Act, awarded to, or recovered by, the people whose land had 
 been flooded and destroyed ; and, therefore, first, because the 
 Middlesex Canal dam and the raising of the dam had flowed 
 these meadows, mainly situate in Wayland and Sudbury, and 
 secondly, because no compensation had been recovered for such 
 flowing, the committee recommend action by the legislature. 
 I say, these meadows, mainly situate in Sudbury and Wayland, 
 because I take my friend who opened on the other side at his 
 word, when he told us, at the same time introducing that tell- 
 ing illustration from Hood, of the man who set his own shirt 
 tail on fire, that the complaint mainly came from those towns, 
 because more than three-quarters of all the injured meadows 
 were there situate ; I say again, I am content to take my friend 
 at his word, and assume it as an undoubted fact, leaving out, 
 however, the illustration, which I must say I cannot entirely 
 2 
 
10 
 
 and fully appreciate, that more than three-quarters of all tlie 
 meadows in reference to which your aid lias been invoked are 
 situated in those two towns. 
 
 Let me quote the words of that committee : " We recom- 
 mend action for two causes ; mainly because injury has been 
 done under the Act of the legislature, and because that legisla- 
 tion was so improvident that nobody has obtained compensation 
 for that injury." That was the Report of the committee of 
 1859. That was the why, gentlemen, the legislature of 1860 
 were recommended to do any thing in this matter ; because 
 those under whom my clients claim, under an Act of the 
 legislature of this Commonwealth, had flooded the lands in 
 Sudbury and Wayland, and because, under that Act, the land- 
 owners had never received any compensation for such .flooding 
 and consequent reduction in value of their property, the legis- 
 lature are recommended to interpose', and to give to the chil- 
 dren, out of the public treasury, some compensation for the 
 losses suffered by their fathers. This is recommended as an 
 act of justice, and simply justico, and by no means on the 
 ground that public policy requires tlie interposition of the State 
 to enable the owners to improve the natural condition of their 
 lands. You have reduced, say our friends on the other side^ 
 drawing on their im.aginations, as is their wont, for their facts, 
 our land, which would be, but for your act, an almost earthly 
 paradise, whose beauties should be embalmed in song, and so 
 go down to remote generations, to an unsightly bog and an 
 unhealthy quagmire ; and so say the committee, because this 
 has been done without compensation, you must now do tardy 
 justice. 
 
 And then, gentlemen, what do you find was the ground taken 
 by the committee of 1860 ? This Report of the committee of 
 1859 was made to the legislature of 1860, was committed to 
 a committee of the legislature of that year, and that com- 
 mittee, never having had any meetings where the parties, at least 
 where my clients were present, they never having given them 
 a chance to appear personally, or by counsel, and defend their 
 rights, never having given them, gentlemen, tliat chance which^ 
 under our form of government, is given to the humblest indi- 
 vidual before his rights are passed upon, which is given to one 
 who is guilty of the most atrocious crime—the chance of being 
 
11 
 
 heard before being condemned ; I say, that committee under- 
 took to report this law, of which we now ask a repeal at your 
 hands. And why do they report this law? Why, gentlemen, 
 they put it upon grounds distinct, clear, and certain, upon 
 grounds which the facts now show are entirely untenable ; they 
 came to conclusions which the experiments now show con- 
 clusively are wrong, and without any foundation in fact — 
 conclusions founded on an entire misapprehension of the testi- 
 mony, and entirely unsupported by a single fact. 
 
 Look at the Report of the committee, gentlemen. They say 
 that the finding of the committee of 1859 was fully sustained 
 by the evidence, and that nearly ten thousand acres of the best 
 land in the eastern part of the State had been ruined by the 
 dam at Billerica. Why did not that committee. Sir, before 
 they talked about ten thousand acres, listen to a little evidence, 
 and examine the matter a little more carefully ? They find 
 " that the dam erected by the Middlesex Canal Corporation is 
 an efficient cause of the flowage of nearly ten thousand acres of 
 the most valuable land in the eastern section of the State ;" 
 that this immense injury to those lands has been actually accom- 
 plished by the Canal Corporation, under the charter, without 
 the payment of a single cent of damages to the land-owners for 
 the injury. Such are the grounds, gentlemen, upon which the 
 committee reported this Act of which we ask the repeal. Say 
 they, we have ruined — that is, our predecessors, the Middlesex 
 Canal Corporation, of whom I speak as my clients, in fact, 
 because we claim under them — beginning in 1798 and increas- 
 ing in 1828, and so going on down to the present time, have 
 by their acts ruined ten thousand acres of the best land in the 
 Commonwealth, without paying a cent of compensation for such 
 destruction. And such are the reasons for the law they recom- 
 mend. A wholesale destruction of private property authorized 
 by an Act of the legislature, without the payment of compen- 
 sation ; and the charter of the Corporation doing this damage 
 having been forfeited, the only course is for the Commonwealth 
 now to come in and pay for the necessary consequences of their 
 own law. They tell us that this injury has been done by a law, 
 in violation of the provisions of the Constitution, which was 
 enacted hastily, improvidently, without due consideration, and 
 therefore they have " deemed it just, and only just, to the 
 
12 
 
 meadow-owners, to give them some redress for this improvident 
 legislation ;" and further they say, " it is based on the principle 
 that the Commonwealth should do justice not only to the peti- 
 tioners but to all its citizens. That it owes a debt to the owners 
 and ancestors of the present owners of these lands for sixty 
 years' depreciation of their annual crops. That it cannot 
 restore this to these men, but it can, by the passage of the bill 
 reported, render them in the future, some satisfaction for past 
 injuries." The proposition, then, is to give these meadow-owners 
 redress. For what injury, for what wrong? Why, to give 
 them redress for the damages occasioned at our hands, from 
 raising the water in Sudbury and Wayland upon their 
 meadows, for which they had never received any compensation. 
 The whole recommendation is based upon the principle, that in 
 this Commonwealth, no one shall have his property taken or 
 injured for public uses, under the authority of law, unless at 
 the same time full compensation is provided for such taking or 
 injury. 
 
 Don't you see, gentlemen, that beyond all poradventure, that 
 such was the only reason given by the Committee for their recom- 
 mendation ? Why, it is so patent, it is so written upon the 
 whole of the five or six hundred pages of that report, and of all 
 tlie other reports that have been made, that " he who runs may 
 . read," — it is from the beginning the burden of the complaint, 
 and it has so continued down to the present time. So it is we 
 are told, that the legislature of the Commonwealth have 
 authorized the creation of a corporation who have raised and 
 kept up the dam at Billerica, and in that way have raised 
 and kept up the water, as the most moderate witnesses tes- 
 tified, two feet at the meadows in Sudbury and Wayland, so 
 reducing that most valuable and beautiful land to a bog and 
 quagmire of no manner of worth to any one. And this, we are 
 told, has been done without compensation. Therefore we are 
 told, and therefore the committee in 1860 say, " We give you 
 compensation from the treasury of the Commonwealth ;" on 
 the ground, gentlemen, upon no other ground, that the Com- 
 monwealth has done the whole injury, for which no compensa- 
 tion has been paid. Now, gentlemen, have you any doubt as 
 to what constituted the sole and only reason for the passage of 
 the law of 1860 ? 
 
13 
 
 I invoke you, gentlemen, if you have patience, and can spare 
 the time for doing it, to begin at the beginning of the first 
 long report of evidence, and of all the reports, and wade 
 through, most carefully, the whole of the six or seven hundred 
 pages, — and, I say again, if you do not find that all the action 
 that is asked for is based upon the proposition I have referred 
 to, I should be almost willing to abandon the case. All the 
 petitioners ask for the interference by the legislature, because 
 by law the Middlesex Canal were authorized to raise their dam 
 in 1798 and 1828, and by so doing have Cowed back the waters 
 of the river, in Sudbury and Wayland, at least two feet, without 
 paying any damages therefor. One of the witnesses, indeed, 
 who is nearly as tall as I am, goes so far as to say tliat where, 
 in Sudbury, sixty years ago, he could drive a four-horse team 
 without miring an inch, the water is now so raised by the 
 Middlesex dam that it stands, in its ordinary summer stage, 
 above his head ! And he only shows, gentlemen, how the 
 imagination, looking back through the long vista of years, can 
 enlarge and magnify all the occurrences of the past. 
 
 ANSWER TO THE CLAIM. 
 
 Such was the whole claim, from beginning to end, and I ask 
 you if I have not stated it fairly ? And now, gentlemen, what 
 was our answer to this claim ? Why, according to tlie present 
 aspect of this case, and the way it has been argued by my two 
 friends who have preceded mo on the other side, we have, 
 up to this time, been acting upon a great and magnificent 
 mistake. Tlie committees of the legislature, and the counsel 
 upon one side and the other, up to this period, have been 
 spending all this time and money upon the supposition that the 
 sole inquiry was whether this dam at Billerica Mills, now owned 
 by my clients, had flowed back the waters of the Sudbury 
 River, in Sudbury and Wayland, some two feet — the most 
 subdued estimate, as you will find, heretofore given by the 
 witnesses from Sudbury and Wayland. And that has always 
 heretofore been the subject of our inquiry. Our claim, gentle- 
 men, was this : we told these men from the beginning — I invoke 
 you again to read, if you have patience, every word that I have 
 said upon this subject, from the beginning to the end, whenever 
 I have appeared before any committee, or any body, and see if 
 
14 
 
 I have changed, or do now change, by a hair's breadth, the 
 ground I take here for my clients : — we claimed in 1859, 
 we claimed in 1860, we claimed in 1861, and we now claim 
 before you, gentlemen, in 1862, this : that our dam at Billerica 
 had not been raised, was not raised in 1798, nor in 1828 ; and 
 further, and more especially, — and this, sir, was the great 
 question which we always made, and of the truth of which we 
 always tried to convince the legislature, successfully so last 
 year, I think, and which is now demonstrated to be true by the 
 experiments of the Commissioners of 1862, — we claimed that 
 the dam at Billerica Mills — raised in 1798, or raised in 1828, 
 if you please, I don't care if it was built anew in 1798 or 1828 — 
 that the dam did no substantial harm, did no substantial 
 injury, gentlemen, to the meadows above it. We claimed that, 
 as far as Sudbury and Wayland were concerned, as far as those 
 towns and those persons from whom came this complaint of a 
 half-a-century's standing, that there never had been, gentlemen, 
 the smallest fraction of an inch of water raised by that dam 
 upon their meadows. 
 
 That was our claim ; and to prove that claim our evidence 
 was introduced. Why, it was understood, gentlemen, it was 
 perfectly well known, that unless the legislature could'be con- 
 vinced that through their agency in 1793 the property of the 
 inhabitants of the towns of Sudbury and Wayland had been 
 injured and destroyed as they claimed, and that without 
 compensation, — unless that proposition could be proved, no body 
 of men who were ever entrusted with the responsibilities and 
 duties of legislation in this Commonwealth would ever think of 
 interfering with the property of a private citizen, or the property 
 and prosperity of any town, more especially when such interfer- 
 ence was to be at the cost of the public treasury, and not of 
 those to be benefited by such action. 
 
 Such then, gentlemen, was the inquiry on the one side and 
 the other. I beg of you to examine most carefully and determine 
 if lam not right in saying that the whole, long, tedious inquiry 
 and hearing upon the subject of the Act of 1860 was sub- 
 stantially to settle the question whether the dam at Billerica 
 was raised in 1798, and again in 1828, and whether as the 
 necessary result of such raising the meadows in Wayland and 
 Sudbury were so flooded as to be entirely ruined ; reduced 
 
15 
 
 from being some of the most valuable lands in the State to a 
 condition of utter worthlessness. Such was the allegation upon 
 one side, and tliat allegation was denied upon the other. And 
 it was upon finding that proposition one way, and because, 
 gentlemen, the committee of the legislature of 1860 made an 
 entire mistake in their finding, a mistake perhaps to be expected, 
 they never having given the parties interested a chance to be 
 heard, and' really having had no time to carefully examine the 
 matter, — it was from this mistaken finding, as they say in their 
 report, because the dam had almost destroyed ten thousand 
 acres of most valuable lands without any compensation, tliat 
 they recommend the Act of 1860. It was for the same reason, 
 it is fair to presume, that the legislature passed that Act and 
 imposed the burden upon the public treasury of affording a 
 remedy for the evils occasioned by the Act of 1793. 
 
 CLAIMS AND COMPLAINTS GROUNDLESS. 
 
 Now, gentlemen, is it not true that when you have gone so 
 far in this inquiry, you have really accomplished the most that 
 you are called upon to do ? For now, so it is, after the experi- 
 ments of the commissioners and their report, it is demonstrated 
 to be true beyond all question and doubt, as certain as a 
 mathematical truth, and you are so to consider it, as you 
 have decided, that none of the meadows above the dam are 
 substantially injured by its flowage, and that it does not, as 
 it is now maintained at its highest point, set back any water 
 upon the meadows in Sudbury and Wayland. Now you have it 
 as a proved fact that all this complaint of ruin in those two 
 towns from the Billerica dam, whether it was raised in 1798 and 
 again in 1828 or not, is entirely groundless, and never had any 
 foundation except in the imaginations of those complaining, 
 that water instead of being raised two feet in those towns by 
 the dam, was not affected by it a single inch. 
 
 Why, gentlemen, you now have it demonstrated that these 
 claims and allegations, upon a belief in which the legislature 
 passed the Act of 1860, are entirely without foundation in fact, 
 groundless beyond all peradventure. The Act then was passed 
 because of the mistake, a mistake of great magnitude no doubt, 
 and involving large interests, but still a mistake, and one which 
 has already entailed upon the Commonwealth an expense of 
 
16 
 
 some twenty thousand dollars, and which, if persisted in, will 
 entail iii)on them an expenditure the limit of which it is im- 
 possible now to foresee and calculate. Because, gentlemen, if 
 this course is persisted in and the Act retained, after the report 
 of the commissioners, as I shall have occasion to say to you 
 hereafter, it is but the beginning of the end, it is but the initia- 
 tion of a policy which will be invoked every year and by all parts 
 of the State. Sudbury River and Concord River are not the 
 only rivers in the State of Massachusetts. If you begin here to 
 improve and pay for improvements out of the treasury of tlie 
 Commonwealth, others will come in for their share of expendi- 
 ture, and that, too, with equal right and equal justice. Why, 
 gentlemen, it turns out now,—and I only call your attention to 
 it in this connection to show the series of mistakes, not to say 
 blunders, on which this Act was passed, — with all these magni- 
 ficent claims made, that ten or twelve thousand acres of the 
 most valuable land in the eastern part of Massachusetts, worth 
 one or two millions of dollars, had been utterly ruined, — it turns 
 out now, gentlemen, by actual measurement, that this magnifi- 
 cent claim has been reduced two-thirds, that instead of ten or 
 twelve thousand acres there are but about four thousand acres 
 of meadows all told, including all those in Billerica about which 
 no complaint is made. And that this measurement is most 
 liberal you will see by a moment's glance at the large map of 
 their lands, where you will find by the elevations of their sur- 
 face, marked in small figures, large tracts are included more 
 than a mile from the river, and from two and a half to five feet 
 above the top of our dam, and other large tracts still higher, 
 where it was not considered necessary to mark their elevation. 
 And further, from actual experiment it is now demonstrated, 
 that instead of the dam flooding back the water in Sudbury 
 and Wayland at least two feet, as was claimed by the most 
 moderate and least inflamed testimony, at the highest point 
 it ever reached, it never set an inch of water upon the 
 meadows in those towns, and that it will only raise the water 
 a half a mile above it, a fraction short of eight inches. That is, 
 gentlemen, if you take the dam entirely away, not cut it down 
 two or three feet, and let the water run, as nature made it to 
 flow, without let or hindrance from any artificial obstruction, 
 you can only lower the water, half a mile above, not two 
 
17 
 
 feet, but less than eight inches. Still the good people of Way- 
 land and Sudbury claimed — believed, I suppose, — that the dam 
 raised the water at least two feet five-and-twenty miles above. 
 Now I pray you, gentlemen, look at the result, the proved 
 demonstrated result, and compare it with the claim. 
 
 The claim was this, that three-quarters of this ten thousand 
 acres of land was situate in the towns of Sudbury and Wayland, 
 the most valuable land in all that section of the State, and that 
 the water had been raised five-and-twenty miles above the dam 
 to the depth of two feet, at its ordinary summer stage. Eight 
 inches was considered hardly of consequence, but the claim was 
 two good feet, at the most moderate calculation. It turns out, 
 gentlemen, not only that this two feet never had any existence 
 except in imagination, but tliat the dam, take it all away, 
 VT'ould not affect the water half a mile above it quite eight 
 inches, according to the report of the Commissioners ; and that 
 all the eight inches disappear substantially before you get up 
 into that region, sir, from which comes the largest, and longest, 
 and loudest cry, — because, as my friend upon the other side 
 says, there the dam did its greatest and wickedest work ; a work 
 so hurtful, so destructive, that the sufferers were constrained 
 to cry out and complain till they made themselves heard, and 
 obtained redress for their sore distress. 
 
 PERSISTENCY OP THE COMPLAINTS. 
 
 Tlje complaints of the people of Sudbury and Wayland have 
 been long, loud, constant, and persistent in reference to their 
 meadows. They began in 1636, were continued in 164-1 and 
 1672, and down to 1711, during all which time they were as 
 loud in arraigning nature for her unkindness, as they were 
 afterwards in inveighing against the injustice of the mill-owners. 
 Soon after 1711 they began to persecute Christopher Osgood, 
 who built the first dam under the Billerica grant, and continued 
 the persecution until they obtained, it would seem, an adjudica- 
 tion that the dam was a nuisance, although it is now certain 
 it could not have injured their lands a particle. We find them 
 again in 1742 and 1789 complaining most bitterly of nature ; 
 and then changing, after 1798, and charging the same troubles 
 upon the raising of the dam by the Middlesex Canal. Then came 
 a succession of trials with the Canal Corporation, when they 
 3 
 
18 
 
 complain again not only of the dam, but also of the ignorance 
 and injustice of the juries of their neighbors, who were too wise 
 to be misled by them, and rendered verdicts against the land own- 
 ers, and in favor of the Canal Corporation. Then again, in 1816, 
 we find them complaining of nature for the fifth or sixth time, 
 and asking for legislative aid to enable them to combine and 
 remedy the evils of their natural position. After 1828, when 
 a new dam was built at Billerica, the charges against the mill- 
 owners are renewed, and kept up, down to this time. And 
 you find my friend, who opened on the other side, telling 
 you the legislature must now redress the wrongs and injustice 
 sufifered by these patient land owners, during the last two cen- 
 turies ; forgetting, in his zeal and ardor, that he was charging 
 nature herself as well as the mill-owners with the doing of these 
 wrongs, — for during more than a quarter part of that time 
 there was no obstruction to the flow of the water in the Concord 
 placed there by the hand of man. My friend was misled by 
 his ardor and imagination, or he would hardly have called upon 
 you to redress such wrongs. But after all I am wrong and he 
 is right, on a more careful examination of the whole of his 
 claim. Give it that examination, and you will see, however it 
 may be disguised, you are now in fact, in truth, asked to furnish 
 aid from the public treasury to remedy the natural defects of 
 these lands, for now it is established that our dam does them 
 no manner of injury. This is really the claim, and what it 
 must result in, however much it may be attempted to distract 
 your attention from the true issue. 
 
 THE REAL CLAIM. 
 
 I know my friend, who opened on the other side, tried to 
 disguise this as much as possible, and lead you off in other 
 directions, so as to cover up, as much as he was able to do, the 
 only true ground upon which his case could be put. But how- 
 ever able and artful my friend may be, he cannot turn you 
 away from the true reason, the real grounds of his claim, not 
 although he should give us double the number of fragments 
 from his fourth of July orations, or Lyceum lectures, not 
 although he should amaze us by an increase of queer and 
 incongruous illustrations, and rhetorical ornamentations. I do 
 not mean to detract one whit from the credit due to my friend, 
 
19 
 
 however, for I thought he did what man could do to conceal 
 his real purpose, and evinced more than his usual fertility of 
 resource in confusing a subject. Indeed, as I sat listening to 
 him and heard him pass from Hood and his story of the burnt 
 shirt, to Cotton Mather and his short way with unbelievers — from 
 Sir Harry Vane, governing by the law of God, to Napoleon, 
 acknowledging no rule but his own will — from Julius Caesar to 
 the Pope of Rome — the Pontine Marshes to the Yalley of the 
 Nile — from De Quincey to Dr. Fairweather and Elsie Yenner, 
 I felt very much as one does in a dream, where there will be a 
 constant succession of the queerest and most disconnected and 
 unlike persons and events trooping through the mind. 
 
 But attempt to disguise it as he may, he really asks you now 
 to come to the aid of the land-owners, and take our property 
 for the reason just given, paying for it out of the public purse, 
 not because they have been injured by us under any Act of the 
 legislature for which compensation has not been paid, but to 
 enable them to improve upon and remedy the natural infe- 
 licities and disadvantages of their position. Have we set back 
 an inch of water on these lands in Wayland and Sudbury, 
 where the complaint mainly comes from ? By no means ; that 
 is all settled for us by the uncontroverted evidence deduced 
 from the experiments. This then is the real statement of the 
 claim : you must deprive the Talbots of their property, and the 
 town of Billerica of their chief source of prosperity and 
 prospective increase, of their right to avail themselves of the 
 natural advantages of the falls on the river within their bounds, 
 usually a more valuable property and greater source of pros- 
 perity than the meadows on the banks, to enable these gentle- 
 men owning lands in Wayland and Sudbury to improve upon 
 the natural condition of their property, to enable them, as my 
 friend says, to remedy and redress the wrongs inflicted on them 
 by nature. 
 
 I don't believe, gentlemen, you are called upon to do any 
 thing more than undertake to do justice for and rectify the 
 wrongs which your predecessors have done. 
 
 HOW THE ACT OF 1860 WAS PASSED. 
 
 Now, gentlemen, I want your attention for a moment to the 
 way in which this Act was passed ; because I am aware — I hope 
 
20 
 
 I give as much weight to it as ray friends upon the other side 
 can — I am aware of the weight that should be given to this 
 proposition, that an Act of tlie legislature is not to be repealed 
 lightly, before it is tried, and found to be wrong by experience. 
 I agree, sir, that there are many cases where I would not vote 
 for the passage of a law, and still would not, after it had been 
 enacted, vote for its repeal until it had been tried. I know, 
 and am ready to admit, that there is great force and weight in 
 the argument, that after a law has been enacted, has been put 
 on the statute book, different considerations undoubtedly prevail, 
 in reference to the repeal of it, than ought to prevail in refer- 
 ence to its passage. And I am prepared to meet that argument, 
 and therefore desire your attention to the history of the way 
 in which this law was passed. 
 
 Why, sir, it is true that this Act was unexpected to, and 
 unasked for by, every-body. It was never asked for by the peti- 
 tioners upon whose petition the original committee of 1859 
 was raised. My friend has told you that some misstatements 
 were made in a publication put forth through the Common- 
 wealth by my clients. But he is mistaken. That publication 
 was substantially correct. I beg again you will examine the 
 petition of the four or five towns, upon which the original 
 committee of 1859 was raised, and all the other petitions in 
 aid of it, and you will find, with the single exception of that 
 of Henry Vose and others in aid, there is not a lisp in them, 
 from beginning to end, in reference to the Commonwealth 
 assuming the power to cut down the dam at Billerica Mills. 
 On the contrary, — I wish your attention to the fact, — that all 
 they ask — and they say so most emphatically — is that the 
 Commonwealth may simply restore to them the right to seek 
 in a court of justice a remedy for the wrongs they have suffered 
 at our hands, by means of this dam. They ask for nothing 
 else substantially. The burden of their song and complaint is 
 this : — " You have limited us to one year to prosecute for our 
 damages, and so it is that so short a time was really depriving 
 us of all remedy — really amounting to a denial of justice." 
 All they say in their petition is, " Just repeal that limitation 
 Act, and give us the natural right of pursuing a remedy for 
 wrongs ; restore to us the right to sue the owners of this dam 
 for the injury we have suffered at their hands." Well, gentle- 
 
21 
 
 men, I should be entirely content that the owners of all the 
 meadow-lands in Sudbury and Wayland might sue us for any 
 damage we have done, which is substantially all they ask for, 
 because, it turns out now, from the experiments, the results 
 of which we have before us, that we never set back upon their 
 lands an inch of water. They ask for rather a barren right, I 
 apprehend it would turn out, — the power to pursue a remedy 
 for a wrong which was never suffered. That is all they ask for, 
 except the repeal of the Act creating the Canal Corporation, 
 which has been accomplished. They do not ask for a cutting 
 down of the dam. 
 
 Again, gentlemen, the Committee who reported upon this 
 matter in 1859, if you will examine their report most carefully, 
 do not recommend to the legislature, except in the very last 
 resort, — they recommend first various other different things, — 
 they do not recommend this cutting down the dam, except as 
 a last resort. More, gentlemen, the secretary of that commit- 
 tee, who spent thirty days, more or less, in a patient hearing 
 and investigation of the whole matter, Mr. Wrightington, of 
 Fall River, a most intelligent, able and careful man, was a 
 member of the House in 1860, when the report of that year 
 was made, and this law was passed ; and he not only voted 
 against it, but spoke against it, and did all he could to prevent 
 its passage. Nay, more, gentlemen, last year he was a member 
 of the House, and he again was in favor of suspending the 
 operation of that Act, saying that he did not believe in its 
 wisdom or justice. 
 
 ORDINARY OBJECTIONS TO REPEAL NOT APPLICABLE TO THIS ACT. 
 
 I now wish' to show you, gentlemen, the reason why the ordi- 
 nary objections to the repeal of a law do not apply in this case. 
 The Act of 1860 was reported at an evening session, on the 
 29th of March — Friday, I think ; it was printed and distributed 
 the next day, and did not get into the hands of the members 
 to any extent until Monday. On the same 29th day of March, 
 gentlemen, and not before, the report of the committee of 
 1859, containing some 500 pages of evidence, the only evidence 
 upon which the legislature were to pass the Act of 1860, was 
 printed and distributed among the members of the House and 
 Senate, and unless they did what nobody had a right to call 
 
22 
 
 upon them to do, I don't believe there were ten of them, 
 outside of the committee, who read, even hastily, the evidence, 
 before they were finally called upon to vote upon a law which 
 depended upon it. Indeed, gentlemen, under the pressure of 
 the few last days of the session, no one could read even 
 a portion of this evidence, and attend to his other duties. 
 How could any fair examination and consideration of the 
 question be had, — the report of the evidence printed on the 
 29th of March, the Act printed on the 30th for the use of 
 the members, and the legislature adjourning on the 4th of April ? 
 Don't you know, all of you, gentlemen, that the Act must have 
 been passed upon by the legislature without any member 
 having had the opportunity for that examination which should 
 have been given to so important and so novel an Act ? 
 
 More than that, gentlemen. So it was — why, I don't know — 
 my clients never had an opportunity to be heard before the 
 committee, either personally or by counsel. We know that 
 two of the chief originators and supporters of this measure, the 
 two main pillars of this whole edifice, who have been engaged 
 upon it from beginning to the end, — most respectable men, 
 undoubtedly, — who have their prejudices in reference to it — 
 with whom the belief in the wrongs done by the Billerica dam 
 has become chronic, and beyond the power of being shaken, and 
 whom you could not convince that they were mistaken, in my 
 judgment, gentlemen, if an angel came down from heaven to 
 testify to them of their mistake, — we know two of those men 
 were members of the legislature of that year ; I rather think 
 they had some business to attend to both before and with the 
 committee and other members of the legislature in reference to 
 this subject. This may help in explaining wliy so extraordinary 
 an Act was passed with so little opportunity for examination 
 and consideration. I refer to the members for that year from 
 Concord and from Wayland. I know this certainly, whether 
 others were heard or not, so it was, gentlemen, that these peti- 
 tioners now here, remonstrants then, could not get the chance 
 to be heard before that committee, who were to pass and did pass 
 upon their rights. I know I besought an old friend of mine, a 
 member of that committee, for a chance to be heard only, and I 
 thought I had assurances that my request should be granted. I 
 asked it as a right, as a favor, on every ground, as counsel for the 
 
23 
 
 most respectable town of Billerica, whose interests were at stake ; 
 I asked it for my clients, and on stronger grounds still, for my 
 friends, gentlemen, for in this case, I am happy to say, I appear 
 here not for clients merely, but for close and dear friends of 
 many years standing, — to have the chance to appear before that 
 committee before the rights of those I represented were finally 
 passed on. I urged upon this member of the committee, who 
 I supposed could appreciate the argument, that no one should 
 be condemned without a hearing. " Wliy, Sir," said I, " you 
 would not undertake to punish, to even act upon the rights of 
 the worst criminal that ever lived, without giving him a chance 
 to be heard in his own defence before he was condemned." But 
 so it was, gentlemen, that we could not be vouchsafed a hear- 
 ing. I suppose they thought there was no time for it ; if a 
 hearing was had, it would have been impossible to have forced 
 through the bill. I agree with them in the latter opinion. If 
 we had been granted a hearing, a chance to urge our claims, 
 my belief is, the report would never have been made, or if 
 made, its recommendation would never have been adopted. 
 
 The committee say they read the proof-sheets of this report 
 as it was coming out, and the moment it came out they reported 
 the bill to the legislature, coming to a conclusion in their haste 
 upon the facts and evidence entirely unwarranted, a conclusion 
 now proved by the experiments to be all wrong, and utterly 
 without foundation.' The mistake, the blunder was made be- 
 cause they were in haste, and would not hear both the parties 
 to be affected by their action. And more than all this, gentle- 
 men, I have the right to say here, because it was said by one of 
 the committee, a member of the Senate from Suffolk County, 
 who denounced the bill as being utterly unjustifiable and un- 
 called for, and one which he, as a member of the committee, 
 knew nothing of — that all the members were never notified of 
 any meeting of the committee when it was agreed upon. That 
 member of the committee from Suffolk County is now a mem- 
 ber of the Governor's Council. 
 
 So hurriedly and under such circumstances this most impor- 
 tant bill, most novel in character, was passed, gentlemen. 
 Have we not a right to complain of hasty legislation ? They 
 talk about hasty and improvident legislation in 1793. Haven't 
 we a right to complain of hasty and improvident legislation 
 
u 
 
 in 1860 ? " Hasty and improvident," gentlemen ? So hasty 
 and improvident that the rights of a most respectable town, 
 and the rights of my clients — involving their right to the en- 
 joyment of all the property, really, they have accumulated — 
 were passed upon, were taken from them, without the possible 
 chance of saying a word in their own behalf. I take it, gentle- 
 men, there are two sides to this question of " hasty and improvi- 
 dent legislation." What said the legislature of 1861 ? Why, 
 gentlemen, after a hearing of some twenty days, more or less, 
 before that committee — the chairman of which, on the part of 
 the House, now fills the Speaker's chair — they came to the con- 
 clusion unanimously that the law of 1860 was hastily and im- 
 providently passed, and ought not to have been enacted at that 
 point of time without further and more careful inquiries into 
 the reasons urged in its favor. They came to the conclusion, 
 farther, gentlemen, really that the only question before the 
 legislature of last year — a decision upon which would estab- 
 lish the right or the wrong of that act — was this : Does the 
 dam at Billerica flood the meadows in Sudbury and Way- 
 land, and in Concord ? Does it drown them out, destroy them, 
 render them worthless ? Does it set back and keep upon them 
 the water two feet higher than formerly at the ordinary summer 
 stage of the river ? Therefore they said, " The Act of 1860 shall 
 not go into operation until these questions have been answered, 
 and the matter made certain and beyond doubt by actual ex- 
 periments, until it has been made certain beyond all question 
 whether the water, which it is claimed has been set back upon 
 these meadows some two feet at the lowest computation, has 
 been set back upon them at all." Such was the opinion of the 
 legislature of last winter. Why, they have really said that 
 this Act of 1860 was hasty, ill-considered, improvident, and not 
 fit and proper to have been passed. They by their action have 
 opened the door through which you are to pass, and through 
 which we now ask you to pass. There is nothing, then, gentle- 
 men, nothing — when you come to examine the facts and cir- 
 cumstances surrounding the passage of the Act of 1860 — in the 
 claim that you are asked here, without cause, to repeal a law 
 which has been passed with deliberation and with care. The 
 trouble is that the enactment of this Act lacks the important 
 
25 
 
 elements of due consideration and deliberation, of proper exami- 
 nation of the grounds and evidence upon which it was asked for. 
 
 EXAGGERATION OP THE QUANTITY OF LAND INJURED, 
 
 There is one other matter, gentlemen, to which I want your 
 attention here, as we pass along. It is to the monstrous exag- 
 geration of all the facts and claims upon which the land-owners 
 put their case, only showing how far prejudice, how far interest, 
 how far schooling one's self to look upon one side of a question 
 alone, to the exclusion of the other, will lead away honest and 
 ordinarily fair-minded men. The monstrous exaggeration upon 
 this subject, both as to the quantity and quality of the lands 
 which they claim have been injured, and the extent of the injury, 
 is now settled, proved beyond any further controversy. 
 
 They claim, gentlemen, tliat we have injured, substantially 
 destroyed, their meadows in Sudbury and Wayland, — and they 
 say the limits of those towns embrace more than three-quarters 
 of all tlie lands affected, — that we have turned a most beautiful 
 and smiling mead, the main source of wealth to the inhabitants 
 of those towns, into a barren wilderness and an unwholesome 
 bog, — that we have raised the water two feet, and flooded out 
 thousands of acres ; and it turns out by actual proof, we have 
 not in any way affected the lands in those towns, or put upon 
 them an inch of water, and that whatever changes may have 
 taken place, they cannot be ascribed to us with the slightest 
 shadow of truth. 
 
 But, gentlemen, as I said just now, the whole matter, the 
 whole claim, is a monstrous exaggeration. The claim made 
 here, on the start, assumed huge and magnificent proportions, 
 and was ever after exaggerated and magnified, until even my 
 friend here who closed yesterday, seems to have convinced him- 
 self that it is one of the greatest subjects that ever came before 
 any legislature. And you see liow the legislature were misled, 
 througliout, by the reports in 1859 and 1860, which I have 
 quoted. The petition claims there were ten or twelve thousand 
 acres of land ruined; the committee of 1859 report, "from 
 eight to ten thousand acres ;" and that of 1860, " about ten 
 thousand acres of the best land ruined." How ruined, I desire 
 to know ? They say, — petitions, reports and all, — not by natu- 
 ral causes, not by other artificial obstructions we have had no 
 
 4 
 
26 
 
 control over, but ruined by our action, ruined because we had 
 built and raised the dam at Billerica under an Act of the 
 legislature. 
 
 Now, as to the number of acres, gentlemen, how large is it? 
 My attention was called to it first by a member of the legisla- 
 ture of last year, and, I am happy to say, of this year also, who 
 had some knowledge of the matter, who was born upon the 
 banks of the Concord River, and had often — as I have done — 
 fished vip and down the banks of these rivers day after day ; he 
 came to me and told me there was nothing like ten thousand 
 acres, reckoning every thing — not half of it. And then, gen- 
 tlemen, for the first time, — I agree that I had been misled by the 
 bold and confident assertion of respectable men, on the other 
 side, — I was led to examine carefully the evidence on that sub- 
 ject. I am ashamed of it — I had taken it for granted, all of us 
 had, that what they claimed so boldly and confidently was true 
 substantially ; but when for the first time I was led to examine, 
 gentlemen, I found, from their own sworn testimony, from their 
 own largest estimated statements, that they could not get, all 
 told, in the towns that had claimed damages — not, sir, of 
 meadows alone, but of meadows and lands they claimed had 
 been affected by the flowage — quite five thousand acres. And 
 then I said, and I say it now, and am willing to be held to it now, 
 though not to open my lips for my clients is about the last thing 
 I would agree to in this case, " If you will go and measure the 
 number of acres in those meadows, I will abandon this case if 
 you find over five and thirty hundred acres that any competent 
 engineer will say are affected by the flowing of our dam." And 
 with the same proviso, gentlemen, I will say, now, if you find 
 over a thousand acres so affected, I will abandon the case. 
 Why, gentlemen, there are found to be about four thousand 
 acres, all told, taking Sudbury, Wayland, Lincoln, Concord, 
 Bedford, Carlisle, and Billerica, embracing every thing. And 
 to see what they have to put in to make even about four thou- 
 sand acres, as the Commissioners report, I ask your most careful 
 attention to that great map, gentlemen, that has been paraded 
 here, where all facts that are supposed to tell for the land-owners 
 are on a large scale, and all telling for us are either left out or 
 put down so minutely as not to attract attention. I understand 
 that the green lines upon it represent the meadow lands, making 
 
27 
 
 up " the about four thousand acres ; " you will find that the 
 meadows there represented extend more than a mile and a half 
 from the river, and that the great proportion of the surface of 
 .those meadows is two, three, and four, and even five feet above 
 the top of our dam, and large quantities of them so high above 
 it that they don't dare to put down the elevation of surface 
 above the dam which is claimed to destroy them. I want your 
 attention to this fact carefully ; — it is easy to say generally " about 
 four thousand acres^'^ but examine the map and the elevations 
 marked, and those so high it won't do to mark them, and the 
 conclusion will force itself upon you, that of meadows that 
 could be within the limits of any flowage from the river, in its 
 ordinary stage, there are not only not about four thousand acres ^ 
 but in all human probability, not over two thousand acres. 
 
 And again, gentlemen, my friend here — I must invoke him 
 again, for occasionally he makes an admission which is useful — 
 has said the main trouble, more than three-quarters of all the 
 trouble, is in the towns of Wayland and Sudbury, because there 
 is situate more than three-quarters of the injured meadows. I 
 take him precisely at his word — I thank him for the admission 
 of the three-quarters. There were three thousand acres, then, 
 of the about four thousand acres of meadows in the towns of 
 Sudbury and Wayland. But the Commissioners say, and you 
 will find it and believe it — and nobody can doubt it at this day 
 of our Lord, — that our dam does not injure the lands in those 
 towns in the slightest appreciable degree. Then there are three 
 thousand of the about four thousand gone at once, and there 
 are but a tnousand left, to distribute between the five towns of 
 Lincoln, Concord, Billerica, Carlisle, and Bedford. Cannot I 
 stand, think ye, by my declaration of last year, that I will 
 abandon this case if any competent engineer will find more than 
 five and thirty hundred acres of land affected by the flowage of 
 our dam ? Why, these Commissioners say, themselves, in effect, 
 that there is less than a thousand acres ; and you will find, in 
 some places in the neighborhood of the dam, that they have 
 included in their estimate within the green lines, land they 
 themselves say is some three or four feet above the top of our 
 dam, and some of it still higher that they do not give us the 
 elevation of. 
 
28 
 
 BILLERICA AND BEDFORD NOT INJURED. 
 
 Well, gentlemen, so far as the town of Billerica is concerned, 
 and the several hundred acres in that town and Bedford, 
 which her citizens own, I beg of you to have no anxiety on 
 her and their account to devise a remedy for any injustice they 
 have suffered from our dam. Because, so it happens, — and 
 this is a peculiar case, — that with this river, immediately above 
 the dam, running for some four or five miles through the town 
 of Billerica, with meadows on eacli side of it, and where the 
 water is highest flowed back by the dam, the land-owners do 
 not know they have been flowed or injured, and do not desire 
 you to interfere in their behalf; on the contrary, they most 
 earnestly deprecate all action on your part. Some fourteen or 
 fifteen witnesses from that town, and some from Carlisle, testi- 
 fied that there had been no raising of water on their lands, within 
 the memory of man, by our dam. And in addition to that 
 testimony, they come here this year and ask you, every man of 
 them owning meadows in Billerica, and some of the owners of 
 meadows in the town of Bedford, not to interfere on their 
 account, for they are suffering no trouble. Their neighbors five- 
 and-twenty miles above the dam may be suffering from it, but 
 these men, owning lands for the five miles next above it, suffer 
 no manner of evil — at any rate, if they have suffered, they 
 never have known it. 
 
 Then, I say again, gentlemen, you have but a thousand acres 
 for Lincoln and Concord and Bedford and Carlisle and Bille- 
 rica ; Carlisle is on one side of the river, Bedford on the other 
 Billerica on both sides. Deduct Billerica from the thousand 
 acres, and I desire to know how^much you will have left affected 
 by the flowage of our dam. Four thousand acres of the best 
 land in the Commonwealth affected by the flowing of our dam, 
 when, pull the whole dam away to the foundation, and you 
 cannot affect the water half a mile above it quite eight inches ! 
 And tliey come here, deliberately, and tell you, and have told 
 other legislatures, and got them to act upon it hastily, impro- 
 vidently, wrongfully, that ten thousand acres of land has been 
 flooded, by raising the water two feet, five-and-twenty miles 
 above that dam ! 
 
29 
 
 VALUE OF THE LAND GREATLY EXAGGERATED. 
 
 The value of the land, gentlemen, I want to call your atten- 
 tion to for a moment. Why, read this original petition. And 
 perhaps, gentlemen, that will be quite enough. There is some- 
 thing amusing about this matter — amusing it would be if it 
 were not so wicked, so destructive, so ruinous to the parties I 
 represent here. Read that first petition I have called your 
 attention to. " Ten or twelve thousand acres," they say ; and 
 when you come to take the evidence, on their own showing, 
 there were but about five thousand and sixty, all told ; taking 
 their own sworn estimates, not measurements, mark you ; " and 
 that meadow-land," the petition goes on to say, " was worth a 
 million dollars at least." $100 an acre, taking it all the 
 way from Billerica up, would be 1400,000 ; |200 an acre, is 
 $800,000 ; at $250 an acre, it would be worth $1,000,000. 
 They come here and tell you, and really ask you to base your 
 action upon it, that that meadow-land was worth $250 an acre, 
 at least, more than sixty years ago. Gentlemen, you will not 
 believe it, nor will any body else that has lived in the country 
 and owned land there, as I have a good deal of my life. Pretty 
 good land, indeed first-rate land, and tillage land to, that five- 
 and-twenty miles back, will now bring — isn't it so ? — $100 an 
 acre. Pretty good land, first-rate tillage land, will hardly 
 bring that sum ; they don't sell meadow-land for any such 
 mark, twenty to thirty miles back from the coast, and never 
 did do so. 
 
 BENEFICIAL RESULTS OF THE FLOWAGE ACT. 
 
 And now, gentlemen, I want your attention for a moment to 
 another subject, which I had almost forgot in my haste. The 
 matter is not important, but I can't but allude to it as my friend 
 on the other side has favored us with his opinion on it. He tells 
 us that the Flowage Act is of doubtful expediency, as well as 
 constitutionality, and that it cannot be heresy now to say so, 
 because the idea has been sanctioned by the chief executive 
 of the Commonwealth. I am not going to permit myself to be 
 led away into a long discussion of that matter. In my judg- 
 ment, the objection to that Act arises mainly from giving undue 
 weight to mere abstractions, and from a want of experience and 
 knowledge of the practical workings of the law. 
 
30 
 
 Our Flowage Act has always substantially been the law of 
 Massachusetts. In our neighboring State of New Hampshire, 
 •with capacities for manufacturing such as are nowhere else, 
 certainly in the United States they have never had any 
 Flowage Act, and any man who owned a piece of land worth 
 sixpence could put his bar upon any improvement that was 
 being made. I am willing, gentlemen, coming from Massachu- 
 setts, and all my ancestors before me being Massachusetts men, 
 I am willing to look to-day at Massachusetts, with her mills and 
 her manufactures, and her agricultural prosperity also, and 
 compare her with New Hampshire, — a most respectable State, 
 I agree, gentlemen, but one which will in no way compare 
 favorably with our own Commonwealth, either in wealth, man- 
 ufacturing, or agricultural prosperity. Indeed, sir, I was 
 reminded of the remark made by a distinguished man in refer- 
 ence to New Hampshire, the truth of which both my friends on 
 the other side have illustrated by their own acts and adoption of 
 it — " a capital State to emigrate from, sir." I am only happy 
 that the truth of this remark has given us both my friends on 
 the other side, and many other of our best men. I am willing 
 to take New Hampshire with no Mill Act, and Massachusetts 
 with one, and compare their agricultural or general prosperity. 
 In my judgment, no law has contributed more to the general, or 
 even the agricultural prosperity and wealth of Massachusetts, 
 than the Mill Act ; and you will find no complaint of it, as a 
 general thing, among the real genuine farmers, who get their 
 living by farming, instead of playing at it ; and let me tell you 
 there is no worse enemy to the real true interests of the farmer 
 in Massachusetts, than he who in pursuit of a mere abstraction, 
 creates distrust in those engaged in manufactures, or does not 
 seek for the largest possible investment of capital in that business. 
 Not a dollar can be invested in manufacturing in Massachusetts 
 without positive benefit to agriculture ; and just in proportion 
 as manufactures flourish and increase here, in the same propor- 
 tion will agriculture flourish and prosper. 
 
 VALUE OF THE LANDS. 
 
 But now to return to the exaggerated estimate of the value 
 of the lands in question. The petition estimates them, as you 
 have seen, at the enormous value of from one to two millions, 
 
31 
 
 and my friend who closed on the other side, in utter despair of 
 finding evidence to sustain the petition, has given us his opinion 
 as to how much would be and was their natural yearly product. 
 And he makes it, as I recollect, that each acre would yield a net 
 profit equal to six per cent, on 8250 — a remarkable coincidence 
 between my friend and the petitioners. But the trouble is that 
 such is not the way to prove the value of lands. Nobody, you 
 know very well, would act on such proof — invest his money on 
 it. It is easy enough to estimate, but hard enough to get the 
 estimated number of hard dollars off the land. Such at any 
 rate is the experience of most men. I have much faith in my 
 friend's legal opinion, but permit me to say I should prefer to 
 take the opinion of some good working farmer upon a question 
 of agriculture — of one who obtained his living from his own 
 work, on his own land. Those of you whose attention has ever 
 been directed to the subject, and listened to trials in court 
 where the value of land has been in controversy, have been 
 surprised, no doubt, at the fact that you can generally prove by 
 opinions and estimates from fair witnesses enough, that the 
 value of any land ought to be and is very much greater than 
 any price it will sell for. Indeed, so universally true is this, 
 that for the last twenty years, having had a somewhat wide expe- 
 rience in trying cases where lands had been flowed by dams, I 
 have yet to hear of a single instance where the land-owner 
 complained that he did not receive the most liberal compensation 
 for all the injuries suffered. So that, so far from farmers 
 generally considering the flowage of their meadows by a mill- 
 owner a disadvantage, it is now generally got to be considered 
 that there is no way in which the owner can realize so much 
 money out of meadows, as by having them flowed by a 
 responsible mill-owner. 
 
 And in this. connection, gentlemen, let me have your attention 
 for a moment to another estimate, made by some distinguished 
 agriculturists, whose prejudices are enlisted in this matter, 
 showing there is nothing too extravagant to be proved, to raise 
 the value of these lands. In the report of the evidence by the 
 committee of 1859, ydikwill find that Mr. Wood and Lieutenant- 
 Governor Brown say that the mud on this land is worth, at the 
 least calculation, two dollars a cord. I only allude to this to 
 show how easy it is to exaggerate every thing. It comes from 
 
32 
 
 the testimony of two of the most eminent gentlemen engaged 
 in farming in Massachusetts. They say that the mud on this 
 land is worth two dollars a cord at the least calculation. Well, 
 I had the curiosity to see how much these meadows were worth, 
 because it struck me they were getting to be mines of untold 
 wealth. They testified that half of these meadows were covered 
 three and one-half to seven feet deep with this valuable material, 
 worth two dollars a cord. There are some 43,560 square feet 
 in an acre, and taking five feet as about the medium depth, 
 you will find, sir, that there are about 1,700 cords to an acre of 
 this material that is worth two dollars a cord at the least possible 
 calculation, carrying up the present value of that land, not to 
 1250 an acre, but to about |3,500. 
 
 I am sorry my friend stopped short with two hundred and 
 fifty dollars an acre, when he could have proved just as easily 
 and just as satisfactorily, by sworn testimony, that thirty-five 
 hundred dollars was the proper figure to put it at. I only 
 say again, I allude to this to show how utterly misleading, 
 gentlemen, all such estimates are, and how unsafe as a ground 
 for action. 
 
 Again, gentlemen, in reference to the value of this land as 
 testified, I have no doubt you have before you in the report of 
 the evidence every piece of land that has ever been sold as high 
 as seventy-five dollars or one hundred dollars an acre ; and you 
 will find but few, very few, instances of that kind. But when 
 you come to a matter of opinion, every thing is changed. Men 
 look back and say, and undoubtedly make themselves believe, 
 " This land was worth about one hundred dollars an acre in 
 years gone by." Now, gentlemen, I cannot controvert that 
 mere opinion, and will tell you why : I cannot go back to the 
 old assessors' list and undertake to pick out the assessed value 
 of the meadow-lands, because, in olden times, all lands were 
 assessed together, the farm was assessed at so much, including 
 all kinds of land. I tried that, and found it utterly impossible 
 to arrive at any valuable result. I could not find out by the 
 sale of it, because meadow-land and other land were generally 
 sold together ; so that there was no way of getting at, satis- 
 factorily, the true market value of the meadow-land separately. 
 We have the testimony of Lieutenant-Governor Brown, of 
 Concord, and Mr. Wood, who testified to the mud being worth 
 
33 
 
 two dollars, that the selling price of the best tillage land, in 
 Concord, in 1859, was one hundred dollars an acre. They 
 wanted to have you put this at some two hundred and fifty 
 dollars or three hundred dollars an acre, three times as much 
 as the selling price of the best tillage land in Concord, where 
 they raise men more fit for cabinet officers, as my friend says, 
 than in any other part of the world — they think so, undoubt- 
 edly ; and I think it may be said in passing, that it is quite 
 apparent the good people of that town need have no fears of 
 losing any thing by not stating their claims high enough. 
 
 Now, sir, I say, upon this proposition, I can show you, by 
 positive testimony, contemporaneous testimony, that this land 
 was not of the value they put it at, in times gone by. In the 
 first place, gentlemen, when we are told of one hundred dollars 
 or two hundred and fifty dollars an acre being its fair value, I 
 "«^ant to see how much their best lands are worth by their own 
 estimation. I happen to have the printed report of the asses- 
 sors of the town of Wayland, for the last year, 1861, and wliile 
 I give you the result of their appraisal, I beg of you to recollect 
 that now our assessors are under oath to appraise every piece 
 of land at its true cash valuation. And, gentlemen, all the 
 tillage land in the town of Wayland averages but about forty- 
 five dollars an acre ; there are but about six or seven acres, I 
 think, in small lots of an acre or two each, that come up to a 
 valuation of a hundred dollars an acre. But they want you to 
 believe that this meadow-land was worth two hundred and fifty 
 dollars an acre sixty years ago, which is five or six times more 
 than the value of their tillage land at this time. 
 
 Again, I say, gentlemen, the land was not worth so much in 
 years gone by as they say it was, and I will tell you why. I was 
 amused, in looking at the first petition in 1859, in connection 
 with the report of the Commissioners of this year, to find the 
 petitioners saying — you will find it upon page 15 of the 
 memorial, in the report of 1859 : " The yield was fi-om one to 
 two tons to the acre, all good stock hay ; " — and now mark — 
 " and much of it, known in this district by the term ^ pipes, ^ was 
 so nutritious and attractive, that creatures would suspend their 
 cheiving-, even of the finest English hay, upon hearing- the 
 peculiar rustle of ' pipes ' upon the scaffold, and ivait to be 
 served with it.^^ And the complaint most plaintively urged is 
 5 
 
34 
 
 that we have destroyed the " pipes " — that their pleasant rustle is 
 no longer heard in their barns and on their scaffolds — and that 
 their cattle are deprived of their accustomed and dearly loved 
 feast upon the "pipes." That is a great ground of complaint most 
 eloquently urged, gentlemen. Your aid is invoked to save the 
 " pipes ; " to have that gentle " rustle " heard again upon the 
 scaffold, so that the cows may again stop their chewing, " even 
 of the best English hay ! " " Pipes " is the burden of their 
 song ; to the music of the " pipes " they tell the sorrowful tale 
 of their wrongs. I want to call your attention to and deal 
 with some facts about these same " pipes," which cattle love 
 above all other things, and the condition of the land on which 
 they grow. These good people of Sudbury and Wayland tell 
 you that the meadows, up to 1828, were good, solid, firm earth • 
 that any body could drive a team of horses or oxen over them 
 clear to the very verge of the stream ; there was no soaking 
 with water, no sliaking bogs, no soft quagmire, but all was 
 solid and firm, and that getting the hay upon tliem was like 
 the vintage in the South of Europe, or perhaps the hop harvest 
 in Kent. 
 
 Now, sir, we have some information. in this report which we 
 did not ask for, though I am glad it was given us. You find 
 that the Commissioners have reported, and their report is final, 
 and my friends on the other side are satisfied with it, the 
 character and condition of the lands fit for growing " pipes." 
 The petitioners say, in their memorial, " Much of this produce 
 was ' pipes ; ' " their complaint is that the " pipes " have been 
 ruined. Now the Commissioners say — what, do you think ? 
 that the " pipes " land could be teamed over, as 1 have already 
 said, without the slightest difiiculty, witliout wetting the hoofs 
 of the oxen ? By no means ; quite another and different story. 
 On page 28 of the report, the Commissioners say : " Where the 
 surface of the water, in the ordinary summer condition of the 
 river, stands one-tenth to three-tenths of a foot above the general 
 surface of the meadoivs, pipes groiv luxuriant /i/^ And they 
 go on to say, that just as the water recedes below the surface 
 of the meadows, pipes disappear in the same proportion. 
 
 You see how these gentlemen have been most industriously 
 engaged in deceiving themselves — willing to be deceived, un- 
 doubtedly. They come here in one breath and say to you, 
 
35 
 
 " Why, gentlemen, these meadows were all as hard and level 
 as a house floor formerly, in their ordinary summer condition • 
 any thing could be teamed over them, and much of their pro- 
 duce was pipes, which cattle love above and beyond all things " 
 — and that is the ground of their complaint. Yet you find 
 that these pipes will not grow until the meadows are flooded 
 from an inch and a third to three and two-thirds inches deep in 
 their ordinary summei; condition. Don't you see how absurd 
 this is, how laughable it would be, were it not for the wicked 
 and disastrous consequences that would result from acting on 
 the claim ? They say they must have the water taken off two 
 feet from these meadows because, in the olden time, this 
 peculiar vegetable, " pipes," grew there ; and you find that the 
 •' pipes " would not grow unless the water, in the ordinary sum- 
 mer condition, stood above these meadows from one to three 
 inches. That was the condition that would grow " pipes " — 
 the only condition. According to that, gentlemen, it would 
 seem that the trouble is that the water on the meadows has 
 been lowered, not raised. 
 
 THE MEADOWS ALWAYS WET. 
 
 But, gentlemen, in trutli and fact, this additional wetness of 
 the meadows has been exaggerated as the value of the meadows 
 has been exaggerated, because, so far from the fertility of these 
 meadows having been the cause of persons settling in their 
 neighborhood, you will find, if you refer to the history of Con- 
 cord, that a large portion of the people of that town, directly 
 after they settled upon these lands, moved away because of the 
 wetness of these very meadows. Instead of going there on 
 account of the meadows, when they got there, they found the 
 meadows so covered with water — so history tells us — tliat they 
 were obliged to remove. My friend here, on this point, again 
 branches off" into a disquisition about the meaning of the word 
 " meadows." He says that it meant ploughed land — where they 
 raised Indian corn ; and that our forefathers went up there and 
 settled, because of the peculiar fitness of the meadows for 
 raising Indian corn. If, instead of bringing in Webster's 
 Dictionary upon another point, my friend had turned to old 
 Sam Johnson to ascertain what meaning was attached to the 
 word meadow in England, he claiming that our fathers used it 
 
36 
 
 in that sense, he would have found that in England it meant 
 lands which annually produced grass, and watery, though not 
 covered with water. Meadows in this country — unless you 
 apply the term to the interval lands upon the Connecticut — 
 mean wet, damp lands, that yearly produce grass. My friend 
 says our ancestors went up there to raise Indian corn. Wouldn't 
 you liked to have seen tlie old fathers, the Concord and Sudbury 
 people, planting Indian corn on those meadows ? The allega- 
 tion is that most of these lands, in early times, produced " pipes," 
 which the cattle loved more than any thing else ; and we have 
 seen that "pipes" will not grow unless water covers the land to 
 the depth of from one and a third to three and two-thirds 
 inches, in the ordinary summer condition of the river. Yet 
 my friend says the settlers went up there to plant Indian corn ! 
 Why, sir, it was a matter of complaint, as you will find by 
 referring to the extracts from the public records in the book 
 which you have before you, — it was a matter of complaint in 
 1636, in 1644, and in 1672, by the people of Concord and 
 Sudbury, that their meadows were flowed ; they were trying to 
 find some means of getting the water from them. You find 
 that in 1742 almost all the meadow owners of Sudbury and 
 Wayland petitioned the governor and council for the appoint- 
 ment of a commission to remove the water from their meadows, 
 representing that the water stood upon them frequently and 
 long, so as to render them luiprofitable, and destroy their hay 
 and grass. Gentlemen, I beg your attention to this upon the 
 question of value. In 1742, all joined in a petition to the 
 governor and council to adopt some means to take the water 
 off their meadows, which had been rendered unprofitable in 
 consequence of the water standing so much and so long upon 
 them. The owners of these meadows — worth, we are told, 
 8250 an acre ! — all joined in a petition representing that the 
 State must interfere, because those meadows had been rendered 
 unprofitable — almost destroyed. Tliis was in 1742, one hun- 
 dred and twenty years ago. Do you think, gentlemen, the 
 meadows were then worth $250 an acre ? Again, in 1789, 
 before this Middlesex Canal was thought of, before the charter 
 was passed, you find the same meadow-owners, all of them — 
 or the owners of the same meadows whose owners had 
 petitioned in 1742 — joining in another petition to the governor 
 
37 
 
 and council asking for aid, saying that their lands were flowed 
 in summer time, that the water stood, in summer time, upon 
 those lands, and had so stood as to render them of little value. 
 It is true they do say, in that petition, " formerly of great 
 value," now of little value. In 1816, you find the sons of the 
 same men, judging from the names, joining in a petition to the 
 legislature, saying that the water stood on those meadows in 
 the months of June, July and August,- and that their meadow 
 lands, " heretofore valuable," were of little value. 
 
 THE QUESTION OF VALUE, AGAIN. 
 
 Gentlemen, I want you to deal with this matter as men of 
 common sense. They claim, on the one side, that these lands 
 were worth $250 an acre at the commencement of the present 
 century. What do you find ? You find from 1636, running 
 down to nearly 1700, that on three or four different occasions, 
 these meadows were complained of as being so wet that they 
 depopulated those towns — people would not settle there. You 
 find, in 1742, the owners of those meadows saying that they 
 were rendered of little or no value. I ask you, gentlemen, if 
 you believe that, in 1742, lands that were worth $250 an acre 
 would be said by the owners to be of little or no value ? You 
 find that, in 1789, the owners of those same lands say that 
 those lands, " heretofore valuable," were of little or no 
 value. You find the same thing said in 1816. I pray to know, 
 gentlemen, when those lands were so valuable as they tell us ? 
 "When was it that these meadows were of such value ? Am I 
 not dealing fairly with them, gentlemen? I am taking the 
 representations made to the governor and council by the 
 owners of those lands as a basis for action by the Common- 
 wealth. I am telling you what they said in 1742, in 1789, and 
 in 1816 ; and they said, on those three occasions, that tliose 
 meadows were of little or no value. The question is, at what 
 time within the last century were those lands worth from $150 
 to $250 an acre. It is for you to say, gentlemen, looking 
 through all the evidence, whether you do not know from the 
 evidence, — their own evidence, — that those meadows never 
 approached the value which they claimed that they possessed. 
 In the petition from the town of Sudbury they only claimed that 
 they were worth $75 an acre, but they never approached even 
 
38 
 
 that value. The truth is, that they have magnified the value 
 as they have the quantity of these lands. They said there were 
 ten or twelve thousand acres afifected by the dam at Billerica ; 
 it turns out, when we get at the facts, that there are not 
 a thousand acres so affected. They represented that at some 
 time, going back beyond the memory of man, there was some 
 tradition that these meadows were worth from $150 to 8250 an 
 acre. It turns out that from 1636 down to 1816, they made 
 the same claim that they do now, that those lands were injured 
 by water. They exaggerated the value in the same way that 
 they exaggerated the quantity. 
 
 THE CLAIM THAT THE ACT OF 1860 IS IRREPEALABLE. 
 
 I want to call your attention now, Mr. Chairman and gentle- 
 men, to another matter. I understood yesterday, and from the 
 opening argument of my friend on the other side, that a claim 
 was made that there were certain rights created by the 
 passage of the Act of 1860, and by the action of the Com- 
 missioners appointed under it, which rendered it obligatory 
 upon the legislature not to repeal this Act. Perhaps the 
 answer to this would be: — If the legislature should pass an 
 Act which it is not within your power to repeal, no possible 
 harm can be done to any body, because, if you undertake to 
 repeal it, if it is unconstitutional, if you have no power to do it, 
 the courts will settle the matter right, and the rights of every- 
 body will be protected. Nobody will be harmed by it, if you 
 have no right to repeal it. But I do not put it upon this 
 ground. I would ask your attention for a moment to look at 
 the claim made — that a law passed by the legislature of 1860, 
 a general law, not a contract with any human being, a law 
 under which no man has invested a single cent, a law which 
 no person could claim was a contract made with him in any 
 way, a law passed by the legislature, and in which the legisla- 
 ture provided that the public, the Commonwealth, should do 
 the deed that was to be done, cut down the dam, and pay the 
 damages — when that law is passed, it becomes over and above 
 all other laws ; instead of a law of the legislature, subject to 
 repeal by any subsequent legislature, it becomes like a law of 
 the Medes and Persians, so fixed that it cannot be repealed. 
 Why, gentlemen, the statement already made is a sufficient 
 
39 
 
 answer. This is not a contract witli other parties, not a law 
 under which other parties have invested their money, which 
 they have acted upon, wliicli they have paid for, which they 
 have a right say you cannot repeal unless you repay them what 
 they have invested under it. Who is there in Billerica, in 
 Sudbury, in Concord, or anywhere else, who has ever invested 
 a dollar under this law ; who has ever paid any thing under this 
 law, who has ever done any thing under this law in reference 
 to whom it can be said. You cannot repeal that law because it 
 takes from him the property that he has invested under it ? It 
 does not approach that class of cases — and I think you will 
 appreciate the argument here, gentlemen, — in which the legis- 
 lature makes a contract with a corporation. There is no 
 contract made here with any human being, and the same legis- 
 lature that passed the law can repeal it, and nobody can say 
 them nay, — more especially, sir, can it be repealed when no act 
 has been done under it. Why, gentlemen, this same thing 
 was ventilated before the last legislature ; and you will find an 
 instance, in this connection, of what the committee considered, 
 I think, rather sharp practice, to say the least. While the 
 committee of tlie legislature were investigating this very 
 question whether the law should be suspended or not, as you 
 have heard it from Mr. Hudson, these meadow-owners were 
 before the commissioners, undertaking to get them to do an act 
 which would take from the legislature the power to suspend 
 that law. They claim to have done some act, in reference to 
 taking off the flash-boards, which would render it impossible 
 that this Act should be repealed. That matter was dwelt upon 
 last year, and you will see that the committee last year set their 
 seal of condemnation upon that conduct, because they went on 
 to provide specially that no act done under the Act of 1860 
 should in any way affect the right of. any of the parties, should 
 in no way interfere with the right of the legislature to suspend 
 the Act. Why, gentlemen, they have no more right, of course, 
 to suspend an Act a day than they have to repeal it utterly and 
 entirely. If it is an Act under which rights are vested, you 
 cannot interfere with it at all without compensation to the 
 parties interested ; but any Act, not in the nature of a contract, 
 may be repealed by any subsequent legislature. I feel, Mr. 
 Chairman, that this must be apparent to the common sense 
 
40 
 
 of every one. I know that you will not question, for a moment, 
 that the same power which passed this law, which breathed into 
 it life, which gave it power to injure, has the power to take 
 away the life which was breathed into it. No man's rights can 
 be said to have been taken away by this law. You passed it, 
 you can repeal it. The time has gone by when it can be 
 claimed, with reference to laws of this sort, that they can be 
 passed by one legislature and cannot be repealed afterwards by 
 those who come after them and sit in their seats. 
 
 CLAIMS OP THE PETITIONERS SUSTAINED BY THE COMMISSIONERS. 
 
 Now, gentlemen, passing from that, — because I do not believe 
 that it is really relied upon to any great extent on the other 
 side, and that you will give but a passing consideration to it, — 
 I want your attention now to a consideration of the result 
 which has been arrived at by this commission provided for last 
 year. It turns out, by the report of these Commissioners, that 
 what has been alleged throughout, by the parties at whose 
 instance the Act of 1860 was passed, the grounds upon which 
 they have always put their claim, — it turns out, I say, that 
 these are all without foundation in fact, and that the claims 
 which we, on our side, have made from the beginning to the 
 end, which we began with in 1859, and said were then true, 
 which we have said all along and down to the present time 
 were true, have been entirely confirmed by the report of that 
 commission. All this clamor on the other side, that the dam 
 at Billerica, be it higher or lower than it was before 1798, has 
 flooded, has drowned out, has destroyed the meadows in Sud- 
 bury and Wayland ; all that, I say, is forever and entirely put 
 an end to, because we have the report, from absolute experi- 
 ment, that the whole of that dam, not any thing that may 
 have been added to it in 1798 or in 1828, but that the whole of 
 that dam, be it higher or lower, does not affect the water in 
 the towns of Sudbury and Wayland, where more than three- 
 quarters of these meadows are situate, at all ; not only does 
 not raise the water two feet upon them, and destroy them, or 
 render them what they were not, before the dam was built, but 
 it docs not raise any water, substantially, upon those meadows. 
 More than that — and I ask you to look at the argument of last 
 year, and the evidence we offered in 1859 — more than that, 
 
41 
 
 this report shows this, that within half a mile from the dam, 
 before you come to the meadow region, this dam would not 
 affect the water quite eight inches. Such is the report of the 
 Commissioners. What, then, is the proposition, gentlemen ? 
 I am not here to deal with the assertion of my friend on the 
 other side, when he said that it was the merest absurdity to 
 attempt to argue and assert, and attempt to make people believe 
 that a dam that was higher tlian the bottom of a river for five- 
 and-twenty miles, would not raise the water for five-and-twenty 
 miles. I met that last year, and it is not necessary for me now 
 to go into the minutia? and detail to the extent I did then. 
 We have the conclusion of the committee, upon the evidence 
 before them, that our dam would not raise the water in Sudbury 
 and Wayland, would not raise the water at the Fordway, more 
 than six or eight inches. That was the whole question. Will 
 the dam raise the water more than six or eight inches at the 
 Fordway ? Our proposition was, and we had experiments to 
 prove it, that it would not. This year we have had experi- 
 ments made, which you are to take as conclusive, which show 
 that the water is not affected at all by the dam, where the most 
 of this complaint comes from, and that at the very commence- 
 ment of the meadows, and within half a mile of the dam, it 
 would not be affected quite eight inches by taking away the 
 dam entirely. You have that fact, gentlemen, as a proposition 
 proved by experiment. But notwithstanding all that, I find my 
 friend who opened this case drawing upon his imagination, and 
 my friend who closed the case yesterday again urging that it 
 was nonsense to say, and that nobody would believe it, that a 
 dam which was higher than the bottom of a river for five-and- 
 twenty miles, would not affect the water at any point on the 
 river where the bottom was below the dam. It is not necessary 
 for me to controvert this, because a fact is stronger and better 
 than the theory of any body. I do not care whether my friend's 
 mind is strong and robust enough to control his own theories 
 or not, as some men's are not ; it is sufficient for us that you 
 have the fact before you ; you have the experiments, and 
 according to the experiments, the dam does not affect the water, 
 where most of the complaint is made, and does not raise the 
 water, half a mile above the dam, quite eight inches. 
 
 6 
 
42 
 
 But, gentlemen, if I desired, I could show you, as a matter 
 of theory, deducible from the facts before you, that the dam 
 could not affect the river up to the point they say it does. 
 My friend harps constantly upon this fact, that the dam is 
 higher than the bottom of the river. Gentlemen, you know, if 
 he does not — and if you know it that is all I care for — that 
 what makes a dam, what makes an obstruction of water, depends 
 upon the space there is left for the water to pass along in ; and 
 if you have at the dam a certain space, 127 feet, to pass the 
 water over, you may go up the stream to any point, and you 
 may have the bottom of the river one, two, or three feet, or 
 even more than that, lower than the dam, and the water will 
 not be affected by it ; but if you narrow that stream, if, instead 
 of 140 feet, you narrow it to ten feet, you know that such a 
 space will operate as a more effective obstruction to the water 
 than your dam, though your dam be three or four feet higher 
 than the bottom of the river, because there is not the space for 
 the passage of the water there that there is at the dam. The 
 result is, that this space being lessened — and it is immaterial, 
 is it not, whether it comes from building a dam, or contract- 
 ing the sides, or filling up from tbe bottom to the top, by weeds 
 or rocks, or any other obstruction — the water cannot pass freely 
 along, and it will be raised higher at that point, although the 
 bottom of the river is lower than the dam. The obstruction 
 caused by a dam, or any thing else, depends upon the capacity 
 of the river to pass a certain quantity of water at the point in 
 question. It is so here, gentlemen. Some of the witnesses 
 have told you, that a lessening of the width of the space for 
 the water to pass over, by weeds growing up, or by rocks 
 deposited in the river, would effectually flood back the water, 
 and therefore be as effectual a dam as the dam itself. Theory, 
 gentlemen, is sufficient to account for the fact, if it were nec- 
 essary to do it. I only allude to this to show you how our 
 friends have been misled on the other side, by constantly harp- 
 ing upon the fact, that there is no point upon the river, for 
 twenty miles, more or less, that is not actually lower than the 
 top of the dam. Why, gentlemen, ordinarily, where a dam 
 would effect the water up to a certain point, ten or fifteen 
 miles, you would find a regular slope, would you not ? But if, 
 in any place, you found, from some cause or other, some 
 
43 
 
 obstruction in the river, either by contracting the sides of the 
 river or by putting obstructions in the bed, there was a distinct 
 and different slope — that there was a rapid, a fall, which was 
 not flowed out by the dam below, would you not be right, ordi- 
 narily, in saying that the effect of the dam below was lost when 
 it came to this fall? When you have the slope broken, and 
 have a comparatively rapid fall, you see that the effect of the 
 dam below ends, ceases at that point. That would ordinarily 
 be the case, and it is shown to be the case here, substantially. 
 
 Again : I want your attention for a moment longer upon 
 this point, not because it is exactly necessary, for I am content 
 to leave it with the finding of the Commissioners, but I want 
 you to examine the testimony of one of the agents of these 
 very parties, Mr. Simonds, of Bedford, who testified before 
 the committee of 1859. It shows, sir, that some of these gen- 
 tlemen are dealing with edged-tools, and sometimes get their 
 fingers cut. He put in as a piece of testimony on his side of 
 the house, and as drawing the minds of the committee to the 
 result he sought, this statement, which you will find on page 
 158 of the report : — 
 
 " I also measured the depth of the water at a place a short distance 
 above the dam, known as the Fordway, and found four feet in depth, ia 
 the current, or boat channel, at the same time — the 20th of May. May 
 25th the water had risen — at Carlisle Bridge, one foot seven inches ; at 
 the Fordway, one foot two inches ; and on the dam it had risen two 
 and a half inches." 
 
 Now, sir, to what conclusion does that bring your mind ? 
 Don't you know, gentlemen, every one of you, that from that 
 testimony of Mr. Simonds, the same result was necessarily to be 
 arrived at that has been found by these Commissioners ? What 
 was it ? Why, that the obstructions at the Fordway, and above 
 the Fordway, are greater than the dam, and cause the flooding 
 of the meadows more than the dam. Why ? Because you 
 find, that in five days, the same amount of water that passed 
 by Carlisle Bridge, passed by the Fordway, and passed by the 
 dam, would, on account of the obstructions, raise the river at 
 the bridge one foot seven inches, and at the Fordway, for the 
 same reasons, increase it one foot two inches, while at the dam 
 the same water would pass off, on account of less obstructions, 
 
44 
 
 causing a rise of only two and a half inches. Do you not see 
 that the obstructions to the passage of the water as it flows are 
 above the dam ? The water rises miles above the dam. Why ? 
 Because it meets obstructions there ; because from the bends 
 and the bars in the stream, and a variety of obstructions, the 
 capacity of the stream is not sufficient to pass it down readily ; 
 but when it gets down to the dam, the capacity is sufficient to 
 carry it off, so that instead of rising, in five days, nineteen 
 inches, as at Carlisle Bridge, or fourteen inches, as at the Ford- 
 way, it only rises two and a half inches. Do you not see that 
 the capacity of the dam to pass water is greater than that of 
 the river above, and that the trouble is, that the capacity of the 
 stream is not sufficient, at many places, to carry oif the water 
 that comes down from above ? 
 
 You are to deal with the report of the Commissioners as a 
 fact ; and you would have no difficulty in coming to the same 
 conclusion without their report. You have this fact establish- 
 ed, beyond question or peradventure, that if you cut away this 
 dam, which is said to raise the water two feet five-and-twenty 
 miles above, it will only reduce the water a little short of eight 
 inches, half a mile above. 
 
 I want to call your attention to another proposition, gentle- 
 men. I want you to look at these tables upon which this con- 
 clusion is based. These Commissioners, some of them certainly, 
 have sided quite strongly enough against us in the conclusions 
 they have come to, and I want you to turn to the facts they 
 have stated, upon which those conclusions are based; because, 
 if you will look at the table which gives the average height of 
 the water, at the diffi3rent stations, from the 2d to the 7th of 
 August, you will find this remarkable state of things, — that for' 
 five days previous to the 7th day of August, when they began 
 to draw down the dam, the natural fall of the river at Barrett's 
 Bar, in Concord, was ^^o^ of a foot. I beg your attention to 
 this, gentlemen. For five days preceding the drawing at the 
 dam, the fall from natural causes, just above Barrett's Bar, 
 was j^Q of a foot — a little short of four inches. That was the 
 natural fall, before these experiments began. At the same 
 place, from August 7th to August 12th — the drawing of the 
 water beginning August 7th — you find that the fall of the 
 water in five days was -^^^ of a foot. If you look at the table, 
 
45 
 
 you will see that the other conditions affecting the result were 
 about the same on the first five days as the last ; that about 
 the same amount of rain fell during the progress of each ex- 
 periment ; that there was about the same letting down from 
 the Assabet during both periods. 
 
 What was the result ? Why, you find that the difference 
 between the fall at Barrett's Bar in the first five days and the 
 last five days is just y| ^ of a foot ! You may try the experi- 
 ment, you may look at these tables and examine them through 
 and through, and you will find that you cannot get, by drawing 
 down the water, a fall of much more than an inch, above Bar- 
 rett's Bar, in addition to the fall resulting from natural causes. 
 
 Then look at the Fordway, (Station 28,) and you will find that 
 the difference between the fall of the river in the first period 
 of five days, and the latter, was a fraction over five inches in- 
 stead of eight inches. The Commissioners take the whole fall 
 at that point and attribute it to the experiment, when three 
 inches of it was due to the river being in a falling state at the 
 same time the experiment was being made. 
 
 Now, gentlemen, the Committee say that the dam raises the 
 water at the Fordway about eight inches ; but the trouble is 
 that when you come to look at their own figures, making part 
 of their own report, you must really come to the conclusion 
 that the experiment above the Fordway and above Barrett's 
 Bar, only shows a reduction of about five inches at the former 
 station, and one inch at the latter. That is very remarkable. 
 If you look at the experiments reported by the committee of 
 1859, you will find that such would be the reduction, and the 
 only reduction, which could be accomplished by drawing down 
 the dam. 
 
 Again — simply to allude to this and pass from it — you will 
 find, from the experiments made on the second, third, and 
 fourtli of November, which are reported on page 123, and 
 those of the eighth, ninth, tenth and eleventh, on page 133, 
 that there was a drawing of the water at the dam at those two 
 points of time. You will find there, sir, that if you take the 
 lowest point which the water reached at the dam, on each of 
 those occasions, the lowest point it reached at the Fordway, 
 and the lowest point it reached at Barrett's Bar, — and I beg, 
 
46 
 
 gentlemen, that you will examine these experiments, — you will 
 find, I say, the river being then clear of obstructions, that the 
 lowest reduction at the Fordway was about four inches, and at 
 Barrett's Bar from one to two inches ; — only going to show that 
 the result we arrived at from an examination of their tables 
 made in the summer, is verified by an examination of their 
 tables made in the fall. 
 
 You find then, gentlemen, from the report of the Commis- 
 sioners, the fact — and it is a fact that we have always claimed — 
 that the dam at Billerica Mills, be it higher or lower than in 
 1798 or 1828, does not substantially injure the meadows in 
 Sudbury and "Wayland. You find that the rise of water half 
 a mile above the dam, where the meadows commence, is less 
 than eight inches, and that substantially runs out before you 
 get to those places from which the main complaint comes, — 
 where three-quarters of the injury is alleged to have been done, 
 — where it is claimed that the water, in consequence of this 
 dam, has flowed back some two feet. 
 
 INCREASE OF WATER ON THE MEADOWS, AND ITS CAUSE. 
 
 Now, gentlemen, I do not claim here, as I never have claimed 
 upon any other occasion, that there may not be more water 
 upon those meadows now than there was in years gone by. I 
 have no doubt that the increase of water has been monstrously 
 exaggerated, I am sure of it when we find a crop growing there 
 in olden time which will only grow where the land is covered 
 with water from one to three inches, in its ordinary summer con- 
 dition ; but undoubtedly the meadows are wetter now than for- 
 merly — and why ? Because, since 1812 or '14, or '16, when 
 we first began on a great scale, the business of manufac- 
 turing, when we first began to turn our saw-mills and grist- 
 mills into mills for the manufacture of cotton, and wool, 
 and iron, and wood, — from that time to the present there has 
 been, in the summer, perhaps double the quantity of water 
 running in the stream, in consequence of its being stored up in 
 winter ; and, the stream having no increased capacity to carry 
 it off, undoubtedly the meadows are wetter from that fact. 
 There has been a constant increase, since 1812, of that business 
 which requires the storing up of water in winter, and letting it 
 
47 
 
 down in greater quantities in summer. The result is, that the 
 water affects the meadows more now undoubtedly. I have so 
 said always, and nothing different. I say it now, as I have 
 always said it, and I ask you if I am not right. But while the 
 meadows may be wetter, in consequence of what has been done, 
 the extent of the increase has been enormously exaggerated, 
 and we have contemporaneous testimony to that fact. The 
 Commissioners tell you, that upon the Assabet and Sudbury 
 rivers there are eighty-two mill-ponds or reservoirs for the 
 storing up of water in winter, to be used in the dry season. Of 
 course the meadows are wetter. Are we to blame for that? 
 Are we to be punished for the sins of the eighty-two persons 
 who pour water down this stream ? We say that our dam does 
 not affect these meadows ; but they say, " True it is, you don't 
 flow water back upon us, but so it is, that because there 
 are some fifty manufacturers on these rivers, with reservoirs and 
 mill-ponds to the number of eighty-two, who store up water in 
 the winter, and pour it down upon us in the summer, our 
 meadows are flooded ; you don't do the evil, you don't flood 
 our meadows, you don't throw the water back upon us, but we 
 are going to punish you for the wrongs we receive from others." 
 Is not that it ? We don't do it, do we ? There is an increased 
 amount of water, but we don't flow it back upon their meadows, 
 we don't contribute to that increase. But they say, " We have 
 so much of this water poured down on our meadows from these 
 eighty-two mill-ponds and reservoirs, that we must destroy you in 
 order to remedy the evils we have received from others." Is not 
 that it, gentlemen ? But why should the sins of othei's (if they 
 are sins) be visited upon our heads ? Ordinarily, it is enough 
 for any one to be held responsible for his own acts. We have 
 shown by these experiments that we have done no harm to any 
 one. Why then should these sins of the mill-owners above us, 
 if they are sins, be visited upon us ? These gentlemen complain 
 that they have been injured. It is sufficient for us to answer — 
 " You know from these experiments, if you can understand 
 any thing, that we do not flow any of this water back upon you. 
 If you are flooded, it is from other sources. Why should you 
 visit upon us the evils and the misdeeds of other parties, over 
 whom we have no manner of control ? " 
 
48 
 
 THE DAM NOT RAISED IN 1798 OE 1828. 
 
 Let me have your atteiition, now, for a short time, upon a 
 question which has been opened here, although I say, in all 
 fairness, I do not think it has much to do with this hearing — 
 that is this, whether the dam has been raised since the incor- 
 poration of the Middlesex Canal, — whether it was raised in 
 1798, or again in 1828. I do not think, really, whether raised 
 or not raised, that it is of much importance in the consideration 
 of this matter, and I believe you will come to the same conclu- 
 sion, and for this reason, — whether we have any rights under 
 the Middlesex Canal Corporation or not, we own the land, and 
 under our laws, we have a right to build a dam upon the stream 
 and throw back the water, provided we do not injure our 
 neighbors. Is it not a sufficient answer for us to make, so far 
 as any thing can be urged against us ? Gentlemen, we claim 
 that our dam injures no one. We have a right to build it, if 
 such is the fact. It turns out, from experiment, that you v^ho 
 most complain, you who own the meadows in Sudbury and 
 Wayland, have not an inch of water turned back upon you by our 
 dam ! Is not that a sufficient answer, I repeat, so far as we are 
 concerned ? Therefore, I say, it is entirely unimportant whether 
 our dam was raised in 1798 or in 1828. 
 
 But the question may be of some importance in regard to 
 another matter which has been introduced here. It is claimed 
 here, by the gentlemen on the other side, that our dam was 
 raised in 1798, and raised again in 1828. Upon the second 
 proposition, so far as any reliance is to be placed upon human 
 testimony, — so far as you can know from contemporaneous 
 evidence, from the acts of parties, from the use of canals, the 
 dam, in 1828, was no higher than it had been previous to that 
 point of time, or than it had been, really, from the time the 
 canal was commenced. You find, from the testimony of 
 Mr. Baldwin, that in 1825, there was a bolt put in which 
 regulated the height of the dam then, and it was the precise 
 point which regulated the height of the dam in 1828, and which 
 regulated the height of the dam in 1798. Further than that, 
 gentlemen, if you will refer to the maps and drawings, in the 
 report of the committee of 1859, which have not been con- 
 trolled, or shaken in any way, about which there is no pretence 
 
49 
 
 that they are not correct, you will find that the canal, at its 
 greatest draught, would not give you more than three feet and 
 six inches below the top of this bolt, and on an average not so 
 great a depth. Now, it is a fact testified to, and not contra- 
 dicted, that the original boats drew from three to three and a 
 half feet of water ; afterwards, they were of less draught, as 
 Mr. Wilson tells you. Therefore you must know, taking that 
 fact alone, that from 1798 down to 1828, the dam must have 
 been as high as it was after 1828. You will see, by looking at 
 the plan, that if the dam had been any lower, there would have 
 been no way of filling the canal, or using it after it was filled. 
 Now, gentlemen, the question is, was the dam raised in 1798 ? 
 What is the evidence that it was so raised ? We have not the 
 slightest direct testimony to establish that as a fact. My friends 
 on the other side say there was more water on the meadows above, 
 after 1798 and 1828 than before, and that shows, they say, that 
 there was a raising of the dam at those times. Don't you see 
 how utterly unreliable such evidence is, because you find, by 
 the experiments, that the dam, instead of raising the water two 
 feet up in Wayland, does not raise it one incli ! The whole 
 argument falls to the ground. The testimony to the raising of 
 the dam comes mainly from the fact, as they say, that the 
 water flows back upon the meadows further and deeper than 
 before 1798. All this evidence is utterly worthless, because 
 you find that the dam, at the highest point it was ever raised, 
 does not affect the water in Wayland at all. If tlic water 
 has been raised there, the change has been effected by other 
 causes. 
 
 Such is the evidence, and such are the facts, gentlemen, bear- 
 ing on this proposition, and they are facts which address them- 
 selves to those of you who have had experience in such matters. 
 The whole head and fall is as great now and no greater than it 
 was in 1798 — eleven feet. Looking at the little value of land 
 then, compared with its value now, and at the fact that mucli 
 more water was required at that time than at the present day 
 to obtain the same power, owing to the ruder construction of 
 machinery, do you believe that a dam with a head and fall of 
 less than eleven feet would have been built and used at that 
 time ? 
 
 7 
 
50 
 
 Again, gentlemen, look at the testimony of Mr. Theophilus 
 Manning and Mr. Jonathan Manning — two old gentlemen intro- 
 duced on the other side. Mr. Jonathan Manning tells you that 
 the old dam, in existence before 1798, the Richardson dam, 
 without flash-boards, flowed the water into the canal two and a 
 half feet deep, and that the new dam, with the flash-boards on, 
 as you know, only flowed the water three and a half feet into the 
 canal. Then Mr. Theophilus Manning tells you, as you will find 
 by looking at his testimony, that the old dam — the dam before 
 the dam of '98 — had flash-boards upon it from six to nine inches 
 wide ; he did not know precisely how wide ; he did not measure 
 them, and of course could not tell. From that testimony you 
 not only get the fact that the old dam witli its flash-boards was 
 about the same height as the new dam built in 1798, also with 
 its flash-boards on, but it answers another claim that has been 
 set up here. What do they say ? They say, and they have 
 persisted in it from beginning to end, that the dam was raised 
 in 1798 and 1828 to a height three and a half feet above the 
 old dam which existed before '98 ; but you find, on the testi- 
 mony of their own witnesses, that the old dam, without flash- 
 boards, would flow the water into the canal two and a half feet 
 deep, within a foot as deep as would the present dam. Yet my 
 friends say the old dam was three and a half feet lower ! at which 
 height it wouldn't flow a particle of water into the canal. 
 
 THE MISTAKE IN REGARD TO PAULKNER'S RACEWAY. 
 
 One word, gentlemen, in reference to " Faulkner's Raceway," 
 wliich my friend is to teach a starling to constantly scream in 
 my ears. If I am never troubled witli any thing but " Faulk- 
 ner's Raceway," my sleep or dreams will never be disturbed. 
 " Faulkner's Raceway " indeed ! Except for the discordant tone 
 in which my friend screams it to me, it gives me no trouble. 
 Why didn't they come to me, if they thought there had been 
 any mistake ? Why didn't they go to that gentleman who sits 
 there, [Mr. Talbot,] if they thought there had been any mistake ? 
 I say, and I have a riglit to say it, if any man thinks a mistake 
 has been made, and will go to him, fairly and squarely, and say 
 so, he will give every opportunity to set the matter right. I do 
 not believe in going behind his back, and without his knowledge 
 
51 
 
 interfering with his premises. I do not believe that any one of 
 these Commissioners was ever appointed for that purpose. If 
 they had gone to Mr. Talbot and said, " We thhik there is a 
 mistake in that statement in reference to the measurements at 
 Faulkner's Raceway, and we want to ascertain the facts," I 
 pledge you ray word that every opportunity would have been 
 given them to examine and see if there was any mistake. That 
 was not done. They, behind our backs, measured in the wrong 
 place. The trouble with their discovery is this, that while our 
 measurements were in the Raceway, their measurements were 
 in the pond, under some dam — the Lord only knows what dam — 
 you find it in their plan ; in the pond, and beyond and above the 
 Raceway. We have it here upon the testimony of old Mr. 
 Manning, their witness, who says that he knew the Raceway 
 long before the Middlesex Canal was thought of, that it has not 
 been changed. We have it upon the testimony of every man who 
 has been about those premises, that it has not been changed since 
 1793. I do not care, gentlemen, if, before that time, there 
 were gates where they are put on the plan, four, five, or ten 
 feet deep. What we want, and all we want, is this fact — that 
 since 1793, before the dam was built, in 1798, the bottom of 
 that Raceway has not been changed. And who says that it 
 has ? Our witnesses say it lias not ; their witnesses say it has 
 not. They go into a pond above the Raceway and dig down, 
 and they find some structures which tends to show that at some 
 time or other — the Lord knows when — there was a gate that 
 was lower than the mouth of the Raceway as it has been since 
 1793. 
 
 " Faulkner's Canal ! " Do you think I am disturbed by that ? 
 Do yoii you think my clients are disturbed by that? Why, 
 gentlemen, they do not toucli our proposition or pi*oof derived 
 from that Raceway in any degree whatever. They have at- 
 tacked something other than what we put in, than what we 
 have set up or relied upon, and my friend and his starling may 
 cry "Faulkner's Raceway" to their hearts' content, and it will 
 not disturb any body's quiet but his own. 
 
 But I am entirely content, gentlemen, if that is more satisfac- 
 tory to my friends on the other side, to leave Faulkner's Race- 
 way out of the question. I should not have said any thing 
 
52 
 
 about it, if so much noise had not been made by my friend on 
 the other side, who seems to think that we are to be frightened 
 by this bugbear, which has no existence except in his own 
 imagination. 
 
 [Mr. Griffin. We want it in.] 
 
 THE TESTIMONY OF THE PENSTOCK. 
 
 Mr. Abbott. Have it your own way. In or out, it is 
 all the same to us. With or without Faulkner's Race- 
 way, I can prove my proposition strong enough to satisfy any 
 reasonable man. What do you say to the penstock ? We have 
 the measurement of the penstock from the Commissioners of this 
 year. What was the penstock there for ? It was to carry water, 
 so it is sworn, to the wheel of the grist-mill by which the 
 Billerica people, under the old grant, were to be furnibhed with 
 meal ; and I noticed that while my friend had so much to say 
 about Faulkner's Raceway, he did not say a word about the old 
 penstock. It reminded me (I don't want to say any thing offen- 
 sive) of the old saw that one who is running off with something 
 in his pocket belonging to somebody else, is often the loudest in 
 crying " stop thief! " How far do you think the bottom of that 
 penstock is below the dam ? A little more than two feet — short 
 of one inch more than two feet below the present height of the 
 dam. When was that used ? The dam, you recollect, was the 
 dam of 1828, that flooded the meadows for five-and- twenty miles 
 above, because it had been raised a foot or eighteen inches — 
 they cannot tell precisely how much. Well, gentlemen, you will 
 find by Mr. Wilson's testimony, that the penstock carried water 
 to a grist-mill, which ground, as I said before, all the meal for the 
 town of Billerica, for which the privilege was granted in 1708 ; 
 and that mill got so old that in 1810 it was abandoned and given 
 up as a broken down concern, and has not been used since. Upon 
 the evidence, it was there long before, no doubt, the dam of 
 1798 was built, for in those times a mill would not be given up 
 as old and ruinous from twelve years' use. The bottom of that 
 penstock is two feet below the top of the present dam. Do you 
 think that penstock was ever put in to be used unless they had 
 a dam the top of which was at least two feet above the bottom 
 
53 
 
 of the penstock ? If this penstock had been used for more than 
 a dozen years — given up, you recollect, in 1810, because the 
 mill was old — the old dam before 1798 must have been as high 
 as the present one. 
 
 I say again, gentlemen, I do not care any thing about 
 Faulkner's Raceway. It may be put in or left out, just as it 
 suits my friends on the other side. You have this fact of the 
 old penstock upon uncontroverted evidence, and you cannot 
 get over it. What had they to oppose it ? They say we raised 
 our dam in 1828, because we flow their meadows in Sudbury 
 and Wayland ; and we show that the dam, at its greatest height, 
 does not throw a particle of water back upon those meadows. 
 The whole argument falls to the ground. 
 
 Osgood's dam. 
 
 Again, gentlemen, the claim here yesterday was that in 1723 
 Osgood's dam was abated as a nuisance. Well, gentlemen, 
 Osgood's dam, unless it was as high as the present dam, flash- 
 boards and all, would not have affected the water even at the 
 Ford way. If it was a nuisance in Sudbury and Wayland, I 
 reckon it must have been substantially as high as the dam of 
 the present day, because that, as the experiments show, does 
 not affect the meadows in Sudbury and Wayland at all. 
 
 There is another matter, gentlemen, to which I wish to al- 
 lude. They tell you that the grant made to Osgood, in 1711, 
 was made upon condition, that he should secure tlie town of 
 Billerica from any charge that should arise from damage to 
 lands in the towns above. Don't you see, gentlemen, that the 
 dam must have been substantially as high as the present dam 
 to have raised the water on the lands of the towns above ? 
 
 Again, they say the town of Billerica undertook to indemnify 
 one Toothacre for damage caused to his land by Osgood's dam. 
 You will find a grant from the town to Toothacre to compen- 
 sate him for the flowing of his meadow. You know, gentle- 
 men, — those of you who are familiar with that locality — that 
 from the Fordway down to the dam there is a rocky bottom, 
 filled with stones ; there are no meadows until you get above 
 the Fordway. Toothacre's meadow, therefore, must have been 
 above the Fordway, Toothacre's meadow, they said, was 
 
54 
 
 flooded in 1711 ; and in order to flood the lands above the 
 Fordway at all, you must have a dam substantially as high as 
 that of the present day. Do you not see that this dam must 
 have been substantially as high before 1798 as it is now ? 
 
 THE QUESTION OP LEGAL EIGHT. 
 
 I am only referring to this as bearing upon another question, 
 which has been alluded to by my friends on the other side. 
 They say we have no right by our deed to hold the present 
 height of the dam, and so the Commonwealth would not have 
 to pay damages for taking away what we have no right to ; they 
 tell you, that we didn't buy the present height of the dam, we 
 only bought the Richardson privilege ; that the conveyance in 
 that deed is of the Richardson privilege, reserving, at the same 
 time, the right to Faulkner to draw down the water three- 
 quarters of an inch below the top of the present dam. That 
 is to say, it was the conveyance of a dam which was not within 
 three feet and a half of the height of the present dam, with a 
 reservation to Faulkner of a right to draw down the water half 
 an inch below the top of the present dam ! Our friends say 
 that deed did not convey to us the right to keep the dam at its 
 present height. You will find, if you look at the deed, that it 
 conveys to us as all the right the canal proprietors ever had to 
 this property, with all the rights, privileges, and easements 
 belonging thereto, saving and excepting the right of Faulkner 
 to draw down the water until it gets three-quarters of an inch 
 below the bolt, which they say is " the lawful height of the 
 dam." I have only to remark on this objection of our friends 
 on the other side, that you need not trouble yourselves at all 
 about the matter. If they are right, tliey have the most full 
 and perfect remedy in the world in any court, under our 
 general laws, made for them and for us. I should be glad 
 to meet my friends there at any time and have them ventilate 
 the proposition they have insinuated here, for the purpose of 
 inducing the legislature to sustain them in the positions they 
 have assumed. You find, however, the counsel, who have their 
 professional reputation at stake, don't press this objection at 
 much length, or with much confidence — it is insinuated for 
 the purpose of using it when and where there is no one to 
 meet and answer it. 
 
55 
 
 THE BENEFITS PROM THE ACT CONJECTURAL ONLY. 
 
 I wanted to say more upon this matter, gentlemen, because 
 I thought it of some importance, but I see that I cannot, and 
 must hasten to a close, merely alluding to what 1 wish to call 
 your attention to. Some evidence has been offered here for 
 the purpose of showing that if you cut down the dam, it will be 
 of immense benefit to the meadow-owners above, not because it 
 will relieve them from any damage we have done — because we 
 have done them none — but because it will permit them to 
 improve the natural condition of their meadows. To establish 
 this, they have presented some estimates of what it would 
 cost. Gentlemen, is the legislature to be called upon, at this 
 time above all otliers, (for I think we shall feel and appreciate 
 what taxes are within a year more than, fortunately, we have 
 ever before,) is the legislature to be called upon to let a measure 
 stand which will involve an expense to the Commonwealth, the 
 amount of which no man can tell at present, but large, 
 undoubtedly, because possibly the owners of these lauds may 
 sometime undertake to improve them ? Every-body knows 
 that cutting down that dam and reducing the water eight 
 inches at the Ford way would not, of itself, benefit the land. 
 Nobody would ask you to do it for that alone ; but you are 
 asked to do it because a thousand owners, more or less, of 
 meadows, scattered along the river, may be able to do some- 
 thing else that will render the land more valuable. How do 
 you know they will do it? You know that, in 1789, they 
 asked for a commission to go down to the Fordway and clear 
 out the river, the commission having power to collect the 
 money of the proprietors to pay the expense. The governor 
 and council took them at their word, appointed the commission, 
 and then they had a three years' quarrel, the owners refusing 
 to pay a cent for the work that had been done as low down as 
 the Fordway. You are asked to do this act, not because it will 
 do any body any benefit, but because it will enable these 
 meadow-owners to do something to improve their lands. Do 
 you know that all these meadow-owners — some owning an acre 
 and some less — will come together and agree to make these 
 improvements ? 
 
56 
 
 COST OF THE PROPOSED ALTERATION TO THE LAND-OWNERS. 
 
 Let US see if we know what tins will cost. According to the 
 average of the estimates, it would cost something over twenty 
 thousand dollars to get any benefit from the proposed alteration. 
 How do you get at it ? We all know — many of us to our cost — 
 that in an undertaking like this, you cannot get any certain 
 knowledge in reference to the expense. You may send your 
 best engineers, and let them make their estimates in the most 
 thorough and careful manner, and the probability is that those 
 estimates will be doubled before the work is completed. This 
 truth is written in the ruined fortunes of thousands and 
 thousands who have invested their money upon the faith of 
 estimates so made. Is it not the rule, in reference to new 
 undertakings, where you cannot get sure and certain data to 
 pass upon, that the estimates of the best engineers turn out to 
 be largely exceeded when the work is done ? What do you 
 have here ? In the first place, the estimates of half a dozen 
 gentlemen who never have seen the place, who do not know any 
 thing about it, who say they would not undertake the job at all 
 without giving the whole matter a much more thorough exami- 
 nation. These estimates were based upon what ? Based upon 
 the information given by Mr. Shedd, one of the Commissioners. 
 He tells you that he made no examination for the purpose of 
 seeing what it would cost ; that he does not know the nature 
 and character of the formations where excavations are to be 
 made ; that he has not been there for the purpose of ascertaining 
 how much the improvements would cost ; and that all he bases 
 himself upon is the information that was given him by others 
 who are not under oath and who are not before you. When I 
 asked him, " Sir, as an engineer, would you be willing to do 
 that job without further and careful examination ? " He said, 
 frankly, " I would not." " Would you undertake to let it to 
 others?" "I would not." Why, gentlemen, you not only 
 have no estimates of engineers who have been on the ground 
 and examined this matter, and satisfied themselves, but you 
 have no estimates based upon any information that any human 
 being says is safe to be relied upon. There is no obligation, on 
 the part of any body, to improve these lands. No promise even 
 that they will do it. You do not know that any body will do 
 
57 
 
 it. You cannot say that any body has falsified himself if, after 
 you have cut down the dam, no advantage is taken of it. They 
 have not pledged themselves to do it, and you do not know — 
 no human being knows — what it will cost. 
 
 COST TO THE COMMONWEALTH. 
 
 Then, sir, look on the other side for a moment. How much 
 would it cost the Commonwealth ? There you are entirely in the 
 dark. You have some estimates from this young gentleman, 
 Mr. Mills, in reference to the amount of the water-power. We 
 have a head and fall of eleven feet, and for manufacturing pur- 
 poses, he says, if you cut it down a quarter part, there will be 
 sixty-one per cent. left. You, sir, w^ould not pay in that ratio for 
 it, for manufacturing purposes, — no man would. But I do not 
 care to go into that. You have then some estimates in refer- 
 ence to the use of steam-power. Mark this, sir ! If yoii are to 
 supply the deficiency caused by the reduction of the dam by 
 steam, you have to meet the expenses incident to the use both 
 of water and steam-power. Here we iuive six wheels of Mr. 
 Talbot, in different places, and he must have an engine in each 
 place. Mr. Mills says that every wheel is to be altered, that 
 the canals, running through rocky bottoms, are all to be lowered, 
 and the basements of the mills also are all to be altered. Has 
 any body told you how much all this is to cost ? You do this- 
 thing, and Mr. Talbot will consider himself well off- if he gets' 
 the alterations made, so as to use his water-power, for fifteen or 
 twenty thousand dollars. How long will it take to do it ? This 
 is not a job that could be done in less than three months. For 
 twenty days, when only half of Mr. Talbot's mills were running, 
 for twenty days, your Commissioners have said, Mr. Talbot, 
 Mr. Faulkner, and the Belvidere Company, are entitled to five 
 and forty hundred dollars as damages. Mr. Talbot says, in his 
 testimony, page 293, that when he is in full work he uses, in 
 the business of grinding dye woods, from 120 to 130 horse- 
 power ; and he knows, no one better — I do not care what the 
 estimate is on the other side. He uses 50 horse-power in the 
 woollen factory, — making from 170 to 180 horse-power. Then 
 there is Faulkner's mill, with some 50 horse-power more. Mr. 
 Talbot has, in addition to this, an immense surplus power, 
 8 
 
58 
 
 ■which can be used nine months in the year ; and in addition to 
 this, he has the ohl grist-mill, in which he is obliged to grind 
 for the town of Billerica. My friends on the other side have 
 brought in some testimony in reference to the cost of steam- 
 engines, and I am content to take that, (though it is worth 
 nothing,) as far as it goes. They say that a steam-engine will 
 last twenty years. I think that is rather longer than they will 
 average, but take it at twenty years. A steam-engine of seventy- 
 five horse-power, not by the way large enough to make up our 
 loss, costs 17,500. It will cost $10.50 a day for fuel, and |3 a 
 day for extra help, besides 1750 per year for repairs. Why, sir, 
 to obtain a sum sufficient to reproduce a seventy-five horse- 
 power engine every twenty years, and keep it in operation, it 
 must be from $100,000 to 1150,000 at least. And this is with- 
 out any thing for increased risk or the buildings necessary for the 
 engines. Why, gentlemen, talk about expense here ! Cut down 
 this dam, and let us go to a jury from the nfighbiring towns, 
 and let us bring in an exact estimate of what it will cost, and, 1 
 was going to say, I would almost give up the trying of cases, if I 
 could not convince any jury that ever sat in Middlesex County 
 that 1200,000 would not cover the damages to these several 
 parties that will be done by this operation. Why, they show 
 themselves that it must be from one hundred to one hundred 
 and fifty thousand dollars, beyond all controversy. And you 
 are asked to do it upon what evidence ? Not upon any evidence 
 that any body will be benefited by it ; but because, when this 
 is done, and you have incurred this enormous expense, it may 
 be, possibly it may be, that a great number of meadow-owners 
 will join together and tax themselves to the extent of twenty 
 thousand dollars, at least, and it may be double — you cannot 
 tell — and so improve and benefit the land above the dam. If 
 they do this, they will find, when they have drained the water 
 out of the land, that the water will not be the only thing that 
 will fall. If these lands have been kept for the growing of 
 " pipes," with water upon the surface, for the last two hundred 
 years, from 1^ to 3| inches deep, let them draw it down two 
 feet below the surface, and they will find that the land will sink 
 a little as well as the water. I know enough to know that, 
 without professing to be much of an agriculturist, for I have 
 
59 
 
 seen lands that have been covered in this same way, when 
 the water was drained off the surface, settle down, to a certain 
 extent, following the fall of tlie water. 
 
 THE TESTIMONY UNCERTAIN AND UNSAFE. 
 
 Well, gentlemen, you are asked to do all this upon uncertain 
 testimony, not proper, not fair, not right to be acted upon, 
 upon which you would not act in any matter in which you were 
 concerned. The witnesses themselves say they would not act 
 upon it. Upon such unsafe, unsatisfactory, and dangerous 
 grounds you are asked to take our property from us, to inter- 
 fere with the prosperity of the town of Billerica, that town 
 appearing here in opposition to the measure, — you are asked to 
 do it, not because, under the law passed in 1793, an injury has 
 been done, and in payment for that injury, but you are asked 
 to do it in order to enable somebody, whom you do not know, to 
 improve upon the natural condition of these meadows. You are 
 asked to assume an expense, — you do not know how large, only 
 you know it will be very large ; you are asked to inaugurate a 
 new policy ; you are asked to say that the Commonwealth shall 
 come in and assume the responsibility and expense of draining 
 the lands of the Commonwealth at this time ; you are asked to 
 commence this new policy, which will be the beginning of an 
 end which will not be in your generation or in mine. The 
 next you will hear will be from the Charles River and the 
 Neponset River, and a thousand and one other streams ; and 
 when you have set this example, and thus told the people of the 
 Commonwealth that you will spend one or two hundred thousand 
 dollars to enable the meadow-owners on the Sudbury and 
 Concord rivers to improve their lands, how can you reply to 
 the people on Charles River, or on any other river in the 
 Commonwealth, that you will not do tlte same thing for 
 them ? Are you prepared, gentlemen, upon this evidence, are 
 you prepared upon any thing that appears in this report, to 
 say to the people of the Commonwealth : "We will from this 
 time commence a new policy ; we will now, in order to enable 
 certain meadow-owners to improve and render more valuable 
 their meadows, — not because, as they say, we have injured them 
 without paying them for it, — we will take one or two hundred 
 
60 
 
 thousand dollars from the treasury of the Commonwealth at 
 least, and if the policy is established, take sums untold from the 
 same treasury, already biirdened enough " ? 
 
 CONCLUSION. 
 
 There are many other matters, gentlemen, which I desired to 
 open before you and enlarge upon, but I have already taken 
 more time than I ought to have done. I have already wearied 
 myself, certainly, if I have not exhausted your patience. I 
 have only to say that I thank you heartily and sincerely for the 
 kindness and patience with which you have listened to me, and 
 must now trust the whole matter in behalf of my clients to 
 your wisdom, to your sound practical common sense. 
 
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