ARGUMENT
IN BEHALF OF
HON. ALBERT D. BRIGGS,
RAILROAD COMMISSIONER,
BEFORE THE
COMMITTEE ON RAILROADS OF THE MASSACHUSETTS
LEGISLATURE.
MARCH  28, 1876.
By CHARLES ALLEN.
BOS T ON:
WRI.GH.T & POR,:TE.R, STATE PRINTERS,
79 MILK STREET (CORNER-OF F.DERAL),
1876.








AR GITME T.
Mr. Chairman and Gentlemen of the Committee:
This investigation has its origin partly, I suppose, in the desire
of certain persons, who have felt the fidelity of Mr. Briggs as a
public officer, to get rid of him, because they are not able to meet
his official requirements of them, and of their railroads; and partly,
no doubt, in the honest desire of the people of Massachusetts
that their public servants shall be above suspicion. I need not
concern myself, in discussing the testimony which has been laid
before the Committee, with the first class of people, because I
sympathize most fully with every desire which the most jealous person entertains that the civil service of Massachusetts shall be above
reproach, and especially at this time, when there seems to be corruption in the air at Washington. It is of importance to the safety
of the Commonwealth that corruption, if it exists in Massachusetts,
should be exposed. But, Mr. Chairman and gentlemen, if corruption does not exist, then it is almost of equal importance that the
integrity and the honesty of faithful public servants in Massachusetts shall not be brought into reproach; because'the chief of the
treasures of Massachusetts is not in its accumulated wealth, nor yet
in its noble institutions of religion, charity and learning, but it is in
the character of its citizens. While it is well that the spirit of
inquiry, of suspicion even, should be abroad, yet where there is
nothing but honesty and fidelity, then this spirit of inquiry and
suspicion should prove a shield to protect the innocent, as well as a
sword to slay the guilty. It is a matter of general concern that the
reputation of citizens of Massachusetts who hold public office shall
not suffer unjustly, and now, of all times, I have no doubt you will
appreciate and feel that if nothing has appeared in the course of this
case which exposes Mr. Briggs to any censure, then it will be a
pleasure to allow him to enjoy hereafter, as he has in the past,
the full confidence and esteem of the public. You will not care to
send forth word to the world that a public officer of Massachusetts
is brought into discredit, and that the fair fame of the State is
tarnished.




4
In the first place, I am happy to say, there has not been shown
before you, any actual want of integrity, any official corruption, on the part of Mr. Briggs.  There is not even a charge or
suggestion of the sort. Nor is it said to you, nor intimated by
any person, that there has been shown in his official conduct
any bias in favor of any railroad corporation over which he has
official supervision, or any prejudice against any corporation.
No railroad corporation is here complaining, and no person is
here complaining that the public interests have suffered at all in
either of these respects,-that he has been either too lenient or too
severe in the discharge of his duty. In addition, there is nothing
here to show that there has been, in the discharge of his official
duty, any neglect or incompetence.  No broken-down bridges attest,
during his term of office, any lack of fidelity on the part of the board
of which he is a member. There has been no loss of human life in
Massachusetts, during the four years of his term of office, which
comes up here to cry out against him. No, gentlemen, he has discharged his duty with fidelity and efficiency in that respect.  There
has been no railroad accident, no broken-down bridge in Massachusetts, that has been directly or indirectly traceable to any
neglect of his. There is nothing of the sort; and I think I may
say that whatever is, or can be alleged against Mr. Briggs, will
be found to rest ultimately on this: that he has put upon the law a
wrong construction. Whether he has done so or not, I will discuss
hereafter.  But for the general integrity, honesty, fidelity, efficiency
of his official management, there is not only nothing here inculpating him to any extent, on the part of any witness, but you have the
positive evidence of his associates and of other witnesses, of Mr.
Bill, Mr. Washburn, Mr. Stoddard, Mr. Harris, and others; and
there might have been, if we had asked them to come, a cloud of
witnesses, to testify, so far as their knowledge extends, so far as
their opinions reached, that his course was wholly above reproach.
So, also, I feel entirely strong in saying that in addition to this
general and noble vindication of his character, there is nothing here
to show that he has ever used his official position in any way to secure private business for himself or for his firm. If his construction
of the law was correct, that it is permissible for his firm to enter
into competition for the building of railroad bridges for railroad
corporations in Massachusetts, then, of course, it follows that the
mere fact of his firm's obtaining some business raises no presumption
against him. Some business would naturally go to his firm. You
will not fail to observe that this is not a case where they have
inaugurated any new business. It is the case of an old, established
firm. They have been in business many years; they have been in




5
partnership together for a considerable number of years; and, of
course, if he is under the law allowed to continue his business, to
engage in competition with other firms for railroad work, then no
presumption rests against him from the fact that some work comes
to him; of course some work will come to him, and some work will
go to others. What I mean to say is this: there is nothing in this
case to show that he has ever used his official influence to divert
business to his firm, and, on the other hand, it appears by the direct
testimony of various witnesses that he has abstained from so doing;
from the testimony of Mr. Bill, from the testimony of Mr. Stoddard, of
Mr. Folsom, of the Boston & Providence Railroad Company, of Mr.
Munson, of Gov. Stearns, and, perhaps, one or two others, to that
effect. Besides that, there are certain facts in this case which will
enable me to go considerably further than content myself with a mere
negative statement that he has not used his official position wrongly.
There is the testimony of Mr. Bill and of Mr. Hawkins, that on a
$9,000 contract in competition with A. D. Briggs & Co., Mr. Hawkins
got the contract by underbidding only $15. There is also the testimony of Mr. Briggs, that out of one hundred and fifty bridges in
Massachusetts, of railroad corporations, where the board of commissioners have felt it their duty to express their opinion that they
were unsafe, or ought to be made stronger to insure their safety, his
firm have not rebuilt a single one, while Mr. Hawkins and their other
competitors have rebuilt some, and the railroad companies others.
There is, in addition to this, testimony that during the four years
he has held office-four years and over, now-of all the bridges
that have been built in Massachusetts during that time for railroad companies, the only railroad bridge built by his firm has been
that on the Boston & Providence Railroad at Hyde Park.  So
that I think these facts justify me in saying to you, that not only
he has used no official influence to direct business to his firm, but
his delicacy has been such that his firm have not had so much of the
railroad business of Massachusetts as they would naturally have
had if he had not been a railroad commissioner. I don't think it is
a strong statement to make, that it has been an injury to his business that he has been a railroad commissioner.  I think the facts
show it. They have not done as much business for railroad companies
as they had a fair right to.  But you have got the figures before
you, so that I have no fear, when you come to look over this matter
fairly, that you will consider that Mr. Briggs has made his official
position a means to secure business improperly for his own firm.
Well, then, there is another matter that has come into this
case, which requires a few words of comment, and that is in respect
to the Northampton bridge, and the payment of $6,000 in money




6
by Mr. Munson. The facts disclosed in regard to it, as they
appeared at first, were rather startling, and they are still a
subject of highly interesting investigation for those parties more
directly concerned with the matter. I do not wonder that citizens
of Northampton who have paid $300,000 for a railroad, and haven't
got it to-day, do and will feel a good deal of interest in pursuing that investigation.  So far as Mr. Briggs is concerned,
however, there are no more facts that can throw any light than
those that are before you; I believe we have got to the bottom of it, as far as he is concerned.  How  does the matter
stand? I pause not here to do more than to remind you that that
contract was not with a railroad company.  If there has been
any such marked impropriety, as was at first suggested, we are not
bound by any limit of narrow statute prohibition, but go at once
to the question, whether there has been a moral wrong —a corrupt use of money. But whatever that transaction was, right or
wrong, as between Mr. Munson, and Col. Lyman, and Hartwell & Co., of Northampton, I have to say, in the first place,
it was no concern of Mr. Briggs, or of Mr. Smith, his partner.
There is no particle of testimony here that leaves upon them a breath
of suspicion of their being connected with the transaction, whether
it was right or wrong. At first, when it was said that $6,000 were
paid in order to induce the lowest bidder to retire from a contract
in order that it might be given to a higher bidder, there seemed
to be an apprehension that the higher bidder would be connected
with the payment of the money; but if there is truth in man, upon the
sworn testimony of Col. Lyman, Mr. Hartwell, Mr. Briggs, Mr.
Smith and Mr. Munson, that transaction, whether it was right or
wrong, was a transaction with which Mr. Briggs and Mr. Smith
had no concern. They not only did not participate in it, but they
had no knowledge of it, nor any suspicion of it. Now, upon the testimony in this case, I cannot doubt that this Committee, and every
man in this community, will rest in the conviction that that transaction was one between Mr. Munson, and Col. Lyman, and Mr. Hartwell, of Northampton. That the citizens of Northampton have an
honest interest to follow this matter up, I do not doubt. It is a
matter of interest to them, and they are at full liberty to use all
means to get at the truth, and I presume they will. But we have
no concern with it.
In the next place, upon the evidence here, I must suggest to you
that it is not the case that that money was paid for the motive which
was first intimated to you,-the desire to get rid of a lower bidder for
the contract. Simply to get rid of Messrs. Hartwell & Co., as
bidders for the contract, would furnish no strong motive to Mr.




7
Munson's mind. There was no obligation on his part to give them
the contract; on the other hand, if you will take a look at the bid
they put in, and upon which they founded, I will not say their
claim to the contract, but their hope of getting it, you will see
that their specifications were not sufficient to found a contract
upon. The bid of Messrs. Hartwell & Co. was totally silent in
regard to the foundations of the bridge they wanted to build, and
it was entirely insufficient as to the superstructure. There was
nothing that their bid included that was sufficient to found a contract upon, except as to the masonry, and that was only sufficient
by referring to the specifications of the engineer. They were not
practical bridge-builders. Their bid, indeed, was a fancy bid, by a
fancy firm. While, on the other hand, the testimony of Mr. Frost,
the engineer, and Mr. Munson, the contractor, shows that all contractors were at liberty to furnish their own specifications; and
that J. R. Smith, on making his bid, did furnish his specifications, in which he set forth in detail, not only the foundations
which were to be laid and the masonry which was to be put in,
but also the superstructure, the whole of which was to conform
to the quality of the bridge upon the line of a first-class railroad
at Seabrook and Lyme, over the Connecticut River, on the Shore
Line road. And when that firm put in a bid in the way they
did, if they indulged the hope of having the contract, I submit
to the candor and intelligence of the Committee that no prudent
contractor would ever have thought of allowing them to have it.
There wasn't the foundation for making a contract. There is no
evidence that Mr. Munson regarded himself under any legal obligation to pay them  any money to get rid of the bid. Both Col.
Lyman and Mr. Hartwell state frankly to you, that they didn't go
to Mr. Munson to make any legal claim, but having an idea that
they could get some money in some way. There was no legal claim,
and Mr. Munson didn't recognize any legal claim.
But there was another, and a stronger, motive. Mr. Munson is
a practical man. He is, so far as regards the quality of his work,
a first-class contractor.  He is also a man whose veracity and
whose straightforwardness in his dealings are without question,
and when he comes here and tells you such a story as he has
told, you have a right to assume that he is telling you the truth.
He has come here and given an account of the circumstances
of the payment of the $6,000 to Col. Lyman and Mr. Hartwell,
whllich commends itself to the confidence of this entire Committee.
What was the situation of the case?  It was this: the town of
Northampton, as well as many other towns, had voted a subscription
to the Massachusetts Central Railroad. I handed to Mr. Osgood




a certificate from the town clerk of Northampton, showing from
the official report of the action of Col. Lyman and his associates
to the town of Northampton, made in Maelrch, 1875, the dates of the
payments which were made by the town.  In the first place, when
this subscription was made, there had been numerous conditions put
upon the p)aylnent of the money, but one by one, at town meetings,
presided over by Luke Lyman, those conditions had been waived;
and, finally, in September, 1871, and in April, 1872, the whole
business of paying over the subscription was vested in a committee of three, of whom Luke Lyman was the chairman, and there
was nobody else to be dealt with whenever the Massachusetts
Central Railroad or Mr. Munson had occasion to go to Northampton to get their money.  Luke Lyman was the man to go
to. The condition of things was this: At the time of the payment to Hartwell & Co. of the $6,000, $120,000 had been paid
by the town, and there had been delay after delay, town meeting
after town meeting, and $180,000 remained to be paid; and other
towns were failing to pay,-West Boylston, Barre, and others, and
some of them have not paid to this day. It was vital to Munson
and the Massachusetts Central Railroad that the town of Northampton should not fail to pay. It is nothing to say here, that the town
had entered into a legal obligation to pay that money. Towns laugh
at such obligations as that, and what good does a lawsuit against a
town do to the Massachusetts Central Railroad! Delay was ruinous.
They wanted their money, and they haven't got their money yet of
some of these other towns, as the town records will show. Mr.
Munson was a practical business-man. These men had helped in
the matter of the loan before, and would do so again. It is not
likely that they insisted upon a payment for their services; they
would not do that; but they wanted money, and they came here on
this fancy bid, saying they wanted that contract. They wanted
$12,000, and Mr. Munson paid them $6,000 to secure their goodwill. That is what Munson says. and it is no doubt strictly true.
There is nothing in that transaction that shows that Mr. Smith,
having made a contract to build the bridge, was any party to the
payment of the $6,000. He being the lowest of a half-dozen fair
bidders, who were able to do the work, why should he not do it?
So that I believe I am completely justified in saying that on the
testimony before you here, Mr. Briggs stands fully clear so far as personal character is concerned. There is no imputation or censure
resting upon him growing out of any participation in this transaction,
and this takes us back to the question, whether or not he has been
justly exposed to any censure for the construction which he has put
upon the statute; and I should like to make a little discussion upon




that.  What construction did he put upon the statute?  The
words of the statute are that " no person owning stock in any
railroad corporation, or in the employ of any railroad corporation,
shall hold office" as commissioner or clerk. The construction
that he put upon the language as applicable to him was, that it did
not forbid the existing firm of A. D. Briggs & Co. from  entering
into contracts with railroad corporations in this State for the building of bridges for them. The question now is, whether that construction of the statute is right or wrong. This question is not a
question of any actual impropriety; it is a question of the construction of the statute. There may be an actual impropriety which is
not forbidden by the statute, and dealing with a railroad company
may be improper, although there is no statute to forbid it; but I
have already argued to you that there has been nothing in the actual
transactions of Mr. Briggs which, independent of any statute, would
expose him to any imputation. Now, the question is, whether there
is anything in the language of the statute which forbids what
he has done. If we are endeavoring to put a construction on a
statute, and ascertain its true meaning, we are to submit it to a
strict test, because obedience to a statute does not depend upon
circumstances; it is not a matter of discretion. If this statute has
such a construction as to forbid his firm building a bridge for a railroad company, then there can be no circumstances under which it
ought to be done, and it is his duty to say to his firm, You must
refuse applications from all railroad companies under all circumstances; you must not listen to the request of any railroad company
in this State, no matter whether an accident has occurred, and a
bridge has gone, and the company wants us,-no matter what the
circumstances are, if the statute forbids it, we cannot entertain the
proposition. And that is the construction of the law which is contended for; but it is not the construction which Vr. fBriggs put
upon it. Is that the true construction?
There are three classes of contracts that persons are liable to
enter into with railroad corporations, which may be considered
here. The first is a contract for the supply of materials alone, and
that is a contract of sale. I need not argue to the Committee that
when a dealer in merchandise makes a sale of merchandise to a
railroad corporation, that does not bring him within the prohibition
of the statute. He is a vendor, and cannot be considered in any
sense in the employ of his purchaser. That, I believe, is very plain.
Such dealings as that may possibly be improper. We may conceive
that a railroad commissioner might possibly have transactions in
the way of sale to a railroad corporation which he ought not to
have; but, whether it is improper or not, it would not be within the
2




10
statute prohibition, because it can never be said, with any proper
use of language, that a seller of goods is in the employ of the
purchaser.
There is another class of contracts, when a person agrees to furnish materials and work together. That is what was done by Mr.
Briggs's firm; and I shall submit to you, gentlemen, that a contract
for furnishing materials, and work, and workmen, when such personal
service as may be rendered by the contractor is merely incidental to
furnishing the materials, work and workmen, and is not a chief ingredient in it, is still essentially a contract of sale; it is a contract in the
way of trade, and is not a contract of employment. For instance:
if a railroad company wants cars, or if it wants locomotives, or if it
wants rails, and wants them made to order, it is essentially a contract
in the way of trade, and the personal superintendence of that contract is simply incidental to the furnishing the materials, work and
workmen. Suppose a railroad company has occasion to go to a
printing-office to get an advertisement inserted, or some printing
done, and the proprietors of the printing-house enter into a contract to do it, would it be said that such proprietors thereby become
employes of the railroad company, or rather that it is essentially a
contract in the way of trade?  I respectfully submit to you that all
contracts of this class are simply matters of trade; exactly the same
as if one of us should go to a tailor and order a suit of clothes, or
direct a wagon to be made to order, or a desk for a counting-room,
or any other article of the kind; although the party who agrees to
do the work gives a general superintendence to it, yet, if what
he does personally is not the chief element in it, but is only incidental,
it is not a contract of personal service, and it does not make the
contracting party in the employ of the person who is to receive the
goods.
But this statute contemplates another state of things, and that is,
where the personal service of the contracting party is the chief ingredient in the contract. It is this personal relation that is forbidden,
and not a dealing in the way of trade. It is not easy to draw the
line with absolute distinctness, so that one can always say on which
side of the line a particular case will fall: we must apply our judgment to it, as in the practical affairs of life, and decide the questions
as they come up. But whatever Mr. Briggs's firm has done, according to the testimony, is clearly and certainly on the right side of
the line. It does not expose him in any just sense to be considered as in the employ of any railroad company.
Now, perhaps, you will think the statute ought to be broader than
it is; perhaps you will think it should be amended; perhaps you
will think it is wiser to make a law that will include dealings in the




11
way of trade, as well as personal employment. So far as Mr. Briggs
is concerned, I opened this case by saying, that while he claims that
his conduct has not been open to just ground of objection by any
citizen of this Commonwealth, no occasion even for suspicion will
arise hereafter. There is no need of amendment of the statute to
affect the case of Mr. Briggs, for, while believing his construction of
the statute to be right, and sure he has done no wrong to any one, he
will build no more bridges for our railroad companies, whether the
statute is amended or not. But in determining how far the requirements of the statutes shall go, it is worthy of consideration whether,
after all, the character of the man himself does not furnish the best
security for the public. The chief object of special requirements
of statute is to secure faithful public service. It is not wise to
sacrifice the practical safety and security of the public, in a desire for
a theoretical or ideal perfection. There is a passage in the speech
of Milton, for unlicensed printing, which I have copied, as applicable
to this question. He says: "Impunity and remissness for certain
are the bane of a commonwealth; but here the great art lies, to
discern in what the law is to bid restraint and punishment, and in
what things persuasion only is to wish. If every action which is
good or evil in man at ripe years were to be under pittance, prescription and compulsion, what were virtue but a name?.
Banish all objects of lust, shut up all youth into the severest
discipline that can be exercised in any hermitage, you cannot make
them chaste that cannot thither go." So you cannot make a dishonest man into a good public officer by any statute provisions which
you may make. Mr. Adams has hinted in his letter at the practical difficulties in making a law which would cover all possible cases.
What you would need to provide, in order to carry out the views of
some, is, that "no trustee or receiver of a railroad corporation; no
person employed by such trustee or receiver; no person owning
any bonds of any railroad corporation; no member of any corporation which contracts with any railroad company, or any trustee or
receiver of any railroad company; no person contracting or dealing
with any railroad company in the way of trade, of buying or selling,
or furnishing materials or the labor of others; no person employing
any railroad corporation, or any trustee or receiver of any railroad
corporation, to carry freight; and no member of any corporation
which so employs any railroad company, or trustee, or receiver; and
generally no person directly or indirectly interested in any dealings
or transactions to which any railroad company, or trustee, or receiver
of any railroad company, is a party,-shall be a railroad commissioner." But this would be of no avail, if done. It would be simply-to use another illustration from Milton —' like the exploit of




12
that gallant man who thought to pound up the crows by shutting
his park gate." It is not the best way of securing faithful public
service. And so it was that, two years ago, when the draft of the
general railroad Act was prepared, and when this subject was
adverted to in the opinions of those gentlemen who prepared it, they
came to the conclusion that it was not wise to insert any further
provisions in the statute.
The question remains, whether the construction of the statute by
Mr. Briggs, even if wrong, should expose him  to any censure.
Suppose that you should be of the opinion that his construction
was wrong, still, under the circumstances that he acted, doesn't
he stand here fully vindicated? What were the circumstances?
At the time of his appointment by Gov. Claflin, in November,
1871, there was no question raised so as to be the subject of any
formal discussion in regard to the construction of the law. So Mr.
Briggs testifies; Gov. Claflin does not say to the contrary. Gov.
Claflin doesn't say that he had any talk with Mr. Briggs, or Mr.
Briggs with him, or with anybody else upon the subject. Gov.
Claflin in his letter simply expresses what is his personal impression, and given more than four years afterwards; but he doesn't
undertake to state any facts or any recollection of anything in which
Mr. Briggs participated in the way of a discussion. There was no
question of this kind raised. But there was a question which,
during the early part of the administration of Gov. Washburn,
arose in the mind of Mr. Briggs, and it arose from reading the
account of the examination of Mr. Appleton, in one of the
legislative documents of a former year; and the question was,
whether Mr. Appleton had been in the employ of a railroad corporation in this Commonwealth, according to the meaning of the
statute. Now, there can be no doubt, that, at that time, there was
some question raised in the mind of Mr. Briggs. It was a real
question. It was a question which exercised his mind, and which,
for a time, troubled him. It was a question upon which he talked
and advised, —upon which he went to Mr. Charles Francis Adams,
Jr., and the attorney-general of the Commonwealth; he had this
question in his mind, and what was the question?  It certainly, MIr.
Chairman and gentlemen, was not, whether the fact that he had built
bridges in the past twenty-five years of his occupation as a bridgebuilder, was against his holding the office. That was not the question. He had built bridges all over the Commonwealth, and Gov.
Claflin knew it, and Mr. Briggs's occupation was well known to
the public. It was known of all men, that, in his capacity as
railroad commissioner, he would have to inspect and pass upon
the safety of those bridges which he had been building for




13
twenty-five years.  No man raises any question that that was
so. There is no intimation that he was not to pass upon them.
Gov. Claflin doesn't say it, but acknowledges it by implication.
Mr. Stoddard expressly says that that was the reason of Mr.
Briggs's appointment. It was to secure such a man that Gov.
Claflin made the appointment. There is no evidence here on the
part of anybody that the fact that he had got to inspect these bridges
as a railroad commissioner was any disqualification; no question of
that kind was raised at the time. What was the question, then,was it whether or not his firm might enter into contracts with railroad
corporations not chartered in Massachusetts? Was that the question which troubled his mind? Look at the statute, gentlemen. I
will submit it to the candor of any gentleman of this Committee,
who will take the pains to look at it,-" No person in the employ of
any railroad corporation, or owning stock in any railroad corporation, shall hold either of said offices" of commissioner or clerk,whether this had reference to railroads outside of the Commonwealth. The whole statute refers to railroads in the Commonwealth; and if you will look at the preceding sections, you will
see that more than once it is expressed in plain terms, that the
subject of this legislation is the railroads of the Commonwealth;
and if the building of a bridge for a railroad company existing out
of this State is a disqualification for Mr. Briggs holding the office
of commissioner, then owning stock in a railroad corporation outside the State is also a disqualification for a commissioner. It is the
same thing, Mr. Chairman. It is not possible that any lawyer or
any business-man, or any man in the possession of ordinary sense, on
looking at this statute, would seriously fear that this prohibition
was against his engaging in the business of building bridges for
companies existing outside of the Commonwealth. Nobody has ever
expressed the opinion that the statute would exclude a commissioner
from engaging in such work; and Mr. Pillsbury has said that
nobody but a lunatic would entertain that opinion. Therefore I
submit with confidence that Mr. Briggs could not entertain any fear
that such work as that would bring him under the condemnation of
this statute.
Well, then, what was it? He had a real question in his mind
which troubled him much,-which exercised him much. It was a
question founded upon the language of the statute, that "No person
in the employ of a railroad corporation should hold the office of
railroad commissioner "; that is to say, no person now or hereafter
in the employ of any railroad corporation shall hold this office of
commissioner. And his question was, whether he was within this
prohibition. It was the only question arising under that statute,




14
whether he could be within the prohibition of the language of the
statute, if his firm should build a bridge, so that it would make
him the employ6 of any railroad corporation in this Commonwealth.
That is the question he went to Mr. Adams about; that is the
question he went to the attorney-general about; and that is the question that he needed satisfaction upon.
Well, the attorney-general, in his letter to you, says that he
does not consider that he gave an opinion,-a legal opinion,because he does not call an opinion a legal opinion unless he gives
it in writing. He does not consider that the statute expressly
required him to give an opinion to Mr. Briggs. I am not going
to quarrel with reference to this construction of language. He
does not deny that he had a conversation with Mr. Briggs; and
he does not deny that he said to Mr. Briggs what Mr. Briggs
says he said to him; and he does not say to you now that
he did then, or does now, put any different construction upon
the statute from  what Mr. Briggs says he put upon it.  He
does not say here, to-day, that his construction of that statute
makes these acts of Mr. Briggs's improper. He had this conversation with Mr. Briggs, and Mr. Briggs was under the impression, and
MBr. Charles Francis Adams, Jr., was under the impression, that
they had got a legal opinion from the attorney-general, and the
attorney-general did not inform them that he drew so fine a distinction between a legal opinion, and a conversation in which he told
what his views were about the law, so that I shall submit to you
that Mr. Briggs had a right to go from that conversation with
the attorney-general, under the impression that he had got a legal
opinion from the attorney-general as to what was proper for him to
do; and he acted upon it,-he and his associates.
Well, then, on the same day, it seems that he went also and
conferred with Gov. Washburn, and here, I regret to say, that
there is a difference in the recollection between Gov. Washburn
and Mr. Briggs; although there is no dispute upon the testimony
here, as to what the conversation was between Mr. Briggs and
the attorney-general, since Mr. Briggs is fortified with the statement of Mr. Charles Francis Adams, Jr.; but Gov. Washburn does not recollect the conversation he had with Mr. Briggs
in the same way that Mr. Briggs recollects it; and such a failure
to recollect alike, I am  sorry to say, owing to the imperfection of human memory, is not a very uncommon thing in the experience of life between two perfectly honest men. We frequently
see instances quite as marked as this. This conversation of only
ten minutes passed out of his mind; he had entire confidence in Mr.
Briggs's character; and he thought no more of it until he comes in




15
here and gives his recollection, which is certainly entitled to consideration; and he thinks that he only expressed the opinion that Mr.
Briggs's firm might properly build bridges for railroad companies outside of Massachusetts; but Mr. Briggs, on the other hand, another honest man, trustworthy, of the highest personal character, enjoying the
implicit confidence of everybody that knows him, comes in and tells
you what is his recollection of' that conversation; and he tells you
that it cannot be that he went to Gov. Washburn and put to him such a
question as Gov. Washburn thinks was put to him, and the reasons
which he assigns are many and strong. In the first place, he says that
there was no such question in his mind; that he had no doubt upon
the question which Gov. Washburn thinks he passed an opinion upon.
It was not a subject of any doubt in his mind whether his firm had
a right to build a bridge in Pennsylvania for a Pennsylvania railroad corporation. He thinks he could not have told Gov. Washburn what Gov. Washburn thinks he told him about his firm having
not built any bridges for any railroad corporations in Massachusetts within three or four years; because the fact was not so. He
also went immediately to Mr. Charles Francis Adams, Jr., who
was in constant communication with Gov. Washburn, officially and
otherwise, and told him what Gov. Washburn and the attorneygeneral had said. He thinks he put the same question to Gov. Washburn which he had put to the attorney-general, and that he got the
same reply. He went away and acted upon the opinion which he got;
- he went away in a satisfied frame of mind; his own conviction as to
the true construction of this law was confirmed. What did he do?
Within less than two years, we find the lieutenant-governor of the
Commonwealth and one of the executive council going to see Mr.
Briggs, and inviting his firm to make proposals for the construction of
three bridges on the Troy & Greenfield Railroad between the
Hoosac Tunnel and North Adams; and his firm made proposals
accordingly, and, in December, 1873, it appears by the letters put
into this case of Mr. Frost, the chief engineer of that railroad, that
these bids were laid before Gov. Washburn and the council, and remained there before them for two months. It was known by these
executive officers that the firm of A. D. Briggs & Co. were making
bids and proposals to build bridges, that would be under his official
supervision, if they were constructed; for they were railroad bridges,
and he would have to inspect them. It was a matter that was known
to them, and it was never visited with any official reprobation. Mr.
Briggs acted upon the conviction that his construction of the law, as
derived from the attorney-general, was the true construction, and he
acted upon it openly, not only in the face of the public, but with
the direct knowledge of the governor and the executive council of




the Commonwealth; and, further, he responded to invitations from
another former member of the executive council to compete for
bridges, and that is Col. Stoddard, of Worcester. Col. Stoddard was
a member of the executive council in 1871, when Mr. Briggs was
first appointed; and in 1872, when this question arose, in the first
year of the administration of Gov. Washburn; and as soon as Col.
Stoddard got out of the executive council, and had more leisure for
such business, the next thing we find happening, is, that a railroad
company of which he was a director, a Massachusetts company,
with his knowledge, are sending for Mr. Briggs to come and make
some proposals for building half a dozen bridges in Rhode
Island for them. Mr. Briggs entered into contracts for doing it;
and Col. Stoddard testifies here, that, having been a party to the
original appointment of Mr. Briggs, and having been an executive
officer during all that time, it never entered into his mind that there
was any incompatibility between Mr. Briggs's position as railroad
commissioner and his doing that work. Nay, more, Mr. Briggs not
only in the face of day, openly, squarely, before the officers of the
State, and before the public, makes these proposals, and enters
into this competition, but you have the testimony of his direct
competitor in business, Mr. Hawkins, that this matter was a subject of frequent discussion between Mr. Briggs and himself; and
Mr. Hawkins, in those discussions, endeavored, without success, to
persuade Mr. Briggs that his construction of the law was an erroneous one. In discussing this question with Mr. Hawkins, his competitor in business, Mr. Briggs took the same view as he takes now.
I will here do Mr. Hawkins the justice to state, what, perhaps, I ought
to have said before, that while he is the only one of Mr. Briggs's
competitors in business, in Massachusetts or out of Massachusetts,
who has been heard of here, before you, even he doesn't come
here complaining of any actual unfairness on the part of Mr.
Briggs in this respect; he confines his complaint to what he considered to be the erroneous construction of the law. Assuming that
Mr. Briggs's construction of the law is right, Mr. Hawkins has
nothing to complain of in his actual conduct, and he tells you so
with a frankness that does him honor.  Well, now, under that
state of things, it appears that this construction which Mr. Briggs
has adopted, is one which was adopted by him honestly and openly, after going to the best sources of information and opinion that
were open to him; that it was acted upon squarely and in the
face of the public, without any secrecy; and that, even if this is
not, in your opinion, the true construction of the law, nevertheless
it is a construction which he was justified in assuming.




17
Perhaps the best test of official integrity, Mr. Chairman and gentlemen, is this: that the public officer acts openly. Happy is that
man who has no secrets, and who need have none. In this case,
Mr. Briggs has come before you with the consciousness that, whatever has been done, has been done in the face of day, before the
eyes of the officers and the people of Massachusetts; and that,
so far from there having been any official disapprobation or disapproval of his conduct, he received his reappointment, in 1874, from
Gov. Talbot, who had called upon him and invited him to bid for the
bridges upon the Troy & Greenfield Railroad, and who had full
knowledge that his firm had done so.
Now, under these circumstances, the practical questions that are
to be considered before the Committee, so far as it relates to Mr.
Briggs, are these: Whether the construction that he put upon the
law was actually the correct construction.  If you have doubts
on that, then whether it was an honest construction which was
adopted by him and acted upon, not secretly, but openly; and, in
the next place, whether or not, in all his official conduct toward the
railroad companies of this Commonwealth, his conduct has been
free from any oppression or injustice, and free from any cause of
censure.
I believe, now, I have gone over all that is necessary for me to
say, and in closing will simply add that I entertain the belief that
you will find it a duty and a pleasure and a matter of pride to leave
him by your report in the full possession of his long-continued and
honorable reputation, and in the confidence of the entire public, as
well as in the esteem and affection of his friends, who have never
wavered.
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