ARGUMENT OF TUE
HON. W. G. BATES,
ON THE PART OF THE REMONSTRANTS, AGAINST THE
PETITION OF A CHARTER OF A RAIL ROAD
FROM THE STATE LINE OF CONNECTICUT,
TO THE VILLAGE OF WESTFIELD,
Before the Committee on Rail Roads of the Legislature of Mass.,
FEBRUARY, 1850.
ARGUMENT.
The case requires but little of argument. The hearing, which has
just terminated, was dependent upon the same facts, and the reasons
which have been urged, by the counsel of the Petitioners, for the Rail
Road from the State Line, to Springfield, and by the counsel of the
Remonstrants, apply with equal force, for, and against this Petition.
The learned, and elaborate argument of my associate, as it seems to
me, has so far exhausted the subject, as to leave little for me to add ;
and the exuberant eloquence of the counsel for the Remonstrants, has
had, it is to be presumed, its proper effect, and no more.
1 shall endeavor not to travel without the limits of the evidence,
either to misrepresent facts, or to malign individuals. I was not em¬
ployed for any such purpose. I have lived too long not to know, that
the temporary credit, obtained by flippant abuse, and mercenary in¬
vective, is more than outweighed, by ultimate pecuniary loss, and,
what is worse, loss of professional reputation.
Nor shall I exhaust the little time, which is left us, by labored eulo¬
gies of those, who have employed me here. Many of them are inhab¬
itants of our own Commonwealth ; and it is not in the power of the
eloquent counsel to make any man believe, that they are the mere pup¬
pets, who dance, as some distant magician pulls the wires.
Others of them, though inhabitants of another State, have yet a na¬
tional reputation ; and to that reputation I am content to leave them. It
was not, probably against them, that the attack has been directed. The
arrows which have been so frequently discharged against the many,
were intended but for the breast of one ; and because that gentle¬
man, from motives, no doubt of private interest, but with the certain
end of public advantage, has sought, by the liberal appropriation of
his own means, to bind by another chain the jarring interests of separate
States, he is denounced by those, who claim that they have, and of
right ought to have, a perpetual chartered monopoly. T may only say
of him, that I know him personally, and I know, also, those who know
him intimately, and have known him long ; and if his traducers can
select a single gentleman, who will place his character helow the very
highest estimate which they have of their own, they must have 'a more
exaggerated opinion of themselves, than the community has of them.
I intend to confine myself to the case,as it appears before you; and
as the hearing ii tft be finished the present evening, I shall deprive my
learned friend of his time for a reply, if I extend my remarks over
more than a small portion, even, of that.
It may be uselul, perhaps, before we proceed in the argument, to
refer to the history of the improvements in the Farmington, and Con¬
necticut rallies, as evidencing the original wants of the people, for pub¬
lic improvements, the increased demands of the public, and the views
and feelings of those, by whom these works have been prosecuted and
opposed.
The first application for an act of corporate power, was by the pro¬
jectors of the Farmington Canal. They applied to the General As¬
sembly of the State of Connecticut, for leave to construct a navigable
canal from New Haven to the State line, at Southwick, with a view of
ultimately extending it to the Connecticut River, at Northampton;
and, subsequently, an application to our own Legislature was made by
these projectors, for the extension thus contemplated. The objects of
the Petitioners are manifest. They designed to connect the Connect¬
icut River at Northampton, with the sea, at New Haven, by means of
an artifical water communication ; to open a market for the products
of the ' up-river county,' in the towns along the river, and at the ter¬
mination of the Canal ; to afford an avenue to the people of those
towns to and from the great market of the North ; and though at the
present day of rapid travelling, it may appear somewhat ridiculous,
to furnish a cheap, easy and expeditious means of conveyance for pas¬
sengers themselves. Their object was, in other words, to accommodate
the local business of the Farmington valley either in purchases, or in
sales, and to divert the travel of Vermont and New Hampshire, and
also that part of Massachusetts contiguous to the River, through their
canal towards New Haven.
In every step of their progress towards a charter, both in Massachu¬
setts and Connecticut, they were opposed by the citizens of Hartford.
In the language of the eloquent counsel, ' they were met' ! and if the
object was as 1 have stated, why, with the views of policy which they
profess to entertain, should they not have been met? It was an attempt,
and if the enterprise had been successful, it would have had the effect
to take away one of the. springs of prosperity from a city whose avarice
never sleeps, and it was in perfect accordance with an illiberal policy,
for them to guard against the effects of the enterpri.se of their com¬
mercial rival.
But if the object was confined merely to the local business of the
Farmington valley, why should the city of Hartford have aroused it¬
self? Why sliould it have sought to obstruct the local accommoda-
4
tions of the people of that valley, or to retard the growth of a rival
city Î The suggestion of such a motive would be the avowal of a dog
in the manger policy on their part, which the honor of its citizens
ought at once to disclaim.
But the opposition was ineffectual! Acts of incorporation were
passed by the Legislature of Massachusetts, and the General Assembly
of Connecticut; and in pursuance of these acts, and the several acts
in addition to the same, an expenditure of about $2,000,000 was made
by the proprietors, and their coadjutors, of this most important enter¬
prise.
The effect of this effort inspired at once, a rival effort. Enterprise
answered unto enterprise, as ' deep caileth unto deep.' A project was
at once started to counteract the effect intended by the construction of
the canal, by the improvement of the Connecticut River, both above
and below Northampton ; and no suggestion is made that the people of
New Haven opposed them in their efforts to improve all the advantages
which ' God and nature' had placed in their hands.
And still, according to the doctrine which has been advanced here,
this was an attempt to establish a competing line. The Legislatures
of these two States had decided, upon a full hearing, that the business
of the Farrnington valley justified this vast expenditure—that the peo¬
ple required this means of transit for their produce, this means of
transportation for their goods; and that it was fit and proper, that the
business of the up-river country, should pass through the canal, to¬
wards the great commercial emporium. And, as the eloquent counsel
has insisted so strongly upon the respect which should be paid to the
voice of a sovereign State, I commend to the counsel this Legislative
adjudication of two sovereign States, as an answer to the sneers which
he has thrown out about " hooks and eyes, and wooden nutmegs."
This call of the citizens of Hartford was responded to by the Gene¬
ral Assembly. Notwithstanding that the evident effect of a charter
Would be to divert business from channels already provided for it, the
charter was granted ; and thus the first blow was struck, which has
brought ruin upon so many enterprising men, for the benefit of the
very persons who now declaim so loudly about the sanctity of char¬
tered rights.
By the opening of these tw o great avenues, the people were provi¬
ded with ample accommodations for reaching, what the counsel calls,
their natural markets.
We have listened to the beautiful language wTiich the eloquent coun¬
sel has put into the mouth of a distinguished representative, enforcing
the doctrine, that the natural tendencies of the trade and business of
6
that section of the country contiguous to the canal, are towards New
Haven and that it will be carried thither by a power as certain as the
gravitation which hurries the water of the hill-sides to the sea. Leg¬
islation, then, had been, up to this period, in harmony with nature.—
New York being the natural and proper market, the Legislative action
had been directed to the improvement of those facilities of inter-com-
munication by which legitimate and proper objects could be the best
accomplished.
. . Acting, then, upon this legislative endorsement of the natural course
of trade, the friends of the canal invested their means in what they
well might consider a protected enterprise.
And yet, notwithstanding this assurance, this large investment of
capital by citizens both of this Commonwealth and of Connecticut,
a petition was presented for the construction of a Railroad from the
west line of our State to Boston. The design was to divert business
from what has been called its proper market, to our own great city ;
and notwithstanding it was well known that the construction of the
road would be ruin to the interests of the canal, I have yet to learn
that the first objection was ever made to it, on the ground of its pro¬
ducing "asevere and ruinous competition" with rights solemnly
guaranteed to its stockholders. Our legislature considered the
wants of the people, the necessity of new means of communication
with Boston, and they very properly regarded the concerns of the gen¬
eral welfiire, instead of the interests of a corporation, whose powers
could not afford to the people the desired privileges.
But the object of the friends of the Western Railroad could not be
carried out without the aid of the State of New York; and without
waiting to consider the effect of opening a road from Albany to Bos¬
ton, which should carry away millions of dollars of profit from their
own great city, they allowed the city of Boston to compete with them
in their own territory for the business of the West, and to convert the
chief city of New England into a rival of their own commercial em¬
porium. This act of liberality of the Legislature of New York, to¬
wards our own State, is respectfully submitted to the notice of this
Committee.
The next improvement to which I refer, is the construction of the
Railroad from New Haven to Hartford, and subsequently, its exten¬
sion to Springfield, and ultimately, to Northampton. Two of these
charters were obtained from each of the two aforesaid States. They
were intended to create', not merely a line "of severe competition" to
the canal, but an element of absolute ruin to it; and they did work the
ruin which every one must have anticipated. An attempt indeed was
As
toaáe to restíscitafe it, fot the putposes of heavy n«ight, bút In the
progress of the age, such a demand was found to exist for means of
Yapid transit, as well for goods as for persons, so great a saving of time
and of capital would be made, that the slow and sure conveyance of
Water communication was abandoned for the flight of steam, on rails
of iron.
Under these circumstances application was made by the Canal Com¬
pany to the Assembly of Connecticut, for the means of accommoda¬
ting themselves to the new improvements and prejudices of the age.—
Again the citizens of Hartford appeared in opposition to their petition.
Those persons for whose interests, and by whose means, the canal was
rendered valueless, and who were in the enjoyment of the privileges
and profits for which the canal itself was originally chartered and con¬
structed, resisted the application for a restoration to a portion of those
very privileges. Why was this exposition? If the change was asked
for, merely to accommodate the mere local business of the Farming-
ton valley, why should the citizens of Hartford have sought to obstruct
this merely local enterprise? Unless you attribute to them that base
motive, which, I trust no one of its citizens would not be ashamed
openly to avow, you must conclude that they anticipated the connec¬
tion of the city of New Haven with the business, for the accommoda¬
tion df which the canal was originally made, wherever they should be
compelled to extend their road, either to Northampton or Springfield,
in order to reach it. You must believe that they considered that it
would become a competing line of road, and would divide the busi¬
ness which they had diverted to their own route.
The application was successful. The road was chartered, and the
Committee will notice the peculiar language of the act of incorpora¬
tion. Confining them strictly to a given line, in the extreme south end
of their line, the language of the act became less definite as to the
northerly part of the route, as if to allow them so to change from the
route of the canal, as to suit the surface of the country over which the
road was to be made, or the legislation upon this subject in our own
Commonwealth. The eloquent counsel has accounted for this pecu¬
liarity of the language of the act, by assigning as the reason for it,
that the Assembly probably knew the names of the towns through
which the canal passed; and therefore, that it was unnecessary to enume¬
rate them, in order to protect the Hartford road from a more severe
competition.
If this presumption of the knowledge of Geography, on the part of
the members of the General Assembly, is a presumption of Law, it is
difficult to perceive, why it is not also applicable to the more southerly
patrt of tho route and, if it is. a presumption of fac.t, it is. rebut^4 bf
the evidence in the case. Nothing is more evident, than that there was
a mistake in the minds of the assembly, and also, even of the. engineers
of the canal, as to the eastern limit of the town of Granby ; for it ap¬
pears, that the first knowledge that a portion of the canal was it) th^
tpwn of Suffield, was derived from our Engineer, Mr. Briggs, who as¬
certained the fact on a recent examination.
The error does not in ray opinion effect the argument, It is enough
for me that a road is, chartered from New Haven in the general direcr
tion of the canal, to the State line ; that for about half the entire
length the road is built, and cars are running on one of the very bes^
of our first-class rail roads, with prospects of success in a high degree
cheering to those, to whom success has so long been a stranger ; that
for the remainder of the entire distance the materials are provided, and
the work is in a good state of forwardness ; and that there are now. on
band, the means and the men to complete the road to Springfield, as
soon as a charter, for that purpose can be obtained from this Common¬
wealth.
I assume it then, as a fact, that the road will be built to the State
linel I look upon it as certain. It must be done; and the question
is, ' at what point shall it strike the line.'
It seems to be assumed, that if we are confined by the words, ' oit
or near,' to the very margin of the canal, with only those slight divert
gencies, which are necessary to accommodate the road to the nature
of the ground, we must of course make Westfield our ultimate destin
nation ; and that if the Supreme Court, or the General Assembly of
Connecticut, shajl allow us to construct it, as it is at present located,
it may be proper, for ^he legislature of Massachusetts to allow us tq
go to Springfield. And we are told that our application is made top
soon ; that we must wail until the Injunction is. dissolved either by
the Court, or by the General Assembly. I concede no such necessity,
(t does not matter the weight of a straw in reference to this application
whether we strike it at one point or at the other ; for in either case, thq
road can as well be built to Springfield, tbe only difference being a
^Lglit prolongation of the length of time. We ask for leave to build
a road from Springfield, to the south line of our State, to meet the
Northern termination of the canal road at that point, at the line where
it shall he legally located ; and we are willing that the point shall be
fixed upon by the Supreme Court, or by that higher power which çreT
ated the Judges of that Court.
ff the Injunction shall be dissolved either by the court, or by thq
Assembly, thfi» ponfessedly we are nov itj the yety place; and it yi
I
only in case that we are to be held to the bed of the canal, that the
Legislature are to doubt, as to the granting of our chatter. In the for¬
mer case the matter is settled by the adjudication of the Court, that we
may lawfully so extend our Rail Road, as to reach the former business
of the canal ; and, in the latter, this Legislature is called upon to say,
whether it will not give to us the privileges of which we have been
deprived.
I know not from what country, or from what State the counsel de¬
rived his reasons for the delay which he advocated. lias there been
any practice as a precedent for this opinion? Was such the reason¬
ing of the State of New York in the matter of the application of the
Western Rail Road ? And if, when that road was in process of con¬
struction, some Justice of the Peace should have decided, that the road
was not legally located, or even some Judge had granted a temporary
Injunction, and the Legislature ot that State should have held up such
a decision as a reason for the postponement of a charter, should we
hot have looked upon it as a disingenuous attempt, to excuse an open
and manly denial of right?
As, however, the injunction is urged against us, it is proper that we
should examine the reasons which are assigned as the grounds of the
adjudication. Fortunately we are furnished with the facts upon which
it is founded, and the arguments deduced from them by the learned
Judge. It is not in any Legislative body a binding authority. It pos¬
sesses no weight, but such as results from its own intrinsic merits.
I do not propose to repeat the arguments of my associate, or at this
hour to examine it at length ; and 1 should find much more reluctance
to obtrude my own opinion of its correctness, if the learned counsel
who has so highly eulogized the hereditary talent of the Judge, had
volunteered his own indorsements of his opinion.
■ The first peculiarity, which would seem to require such an indorse¬
ment to give it authority, is that new rule of construction now first
laid down, for the interpretation of a Legislative act. We are to look
behind the expressed words of the act, to the words of the Petition !
If such a rule is to be adopted, let us to see to what absurdities it will
lead. Suppose for example, this Legislature, disregarding our wishes,
should give us a charter to Westfield. We proceed in the construction
in the route designated. Some land-owner, upon the route prayed for,
moves for an injunction, because we are off from our route. The Judge
looks at the petition, and recollecting the expression, ' if he ask a fish,
will he give him a serpent ?' gravely' decides that this prayer of the
beggar is to over ride the expressed will of the owner. The preamble,
it has been said, is sometimes the key to unlock the meaning of the
9
aet, It is a part of the act, apd in case of a latent ainbigijity, may
perhaps be (isefnl in determining its meaning. Hut I kqpty of no casp,
either in law or in equity, from ^hich a precedent can be drawn for
this adjudication.
Again. The right of a corporation to take land at a given point,
depends upon its interition tp do acts beyond that point. Let us see
where this rule will carry us. We intended to go to Springfield ; and,
therefore, we have no right to take the Pedlar's lot. f he Injunction
is made perpetual; our qualified fee is adjudged void, and he holds his
lot in fee simple, under an adjudicatioij of the highest tribunal of the
State. Acquiescing |n the decision, we then resolve to go to Wesjt-
field, and thereupon the abutters of the Pedlar, petition, as he had P®*
titioned, quoting the decision in his case as an authority fof thiirowp.
Not so, says the Judge When that decision was had, they were in the
wrong direction. They are now returning from their divergency, pur7
suing the route towards the place where the Assembly intended, and
tbey have a right to take your lands under the provisions of their charr
ter. And thus it would happen, that while on the same line of road,
both above and below the lot, whose title is settled against us, we have
a legal right to the use of the land, there is this Pedlar lot, like " a
great gulf fixed," which we cannot pass.
Again. Suppose that it bad appeared that our intention was to go
to Westfield at the time of the hearing at Chambers, and that the di¬
vergency was only such an one as the Judge thinks was authorized.—
Suppose, further, that, at that time, it had also appeared before him,
that the Legislature of Massachusetts had refused to ajlow them to go
to Westfield, but had tendered them a charter to some other point.—
Should we have been, according to the doctrines of the Judge, law¬
fully upon the Pedlar's lot, or not? If the intention was to govern,
we should be rightfully there, and might thence proceed in the direc¬
tion of Mittineague, and thus pave a Railroad *' with good intentions."
But if he should introduce, as an objection, the refusal of our Legisla¬
ture, then it would follow that an act of the Legislature of Massachu¬
setts possesses that marvellous quality of making void, or making le¬
gal, a title to land within the limits of the State of Connecticut.
It is conceded by the Judge, that the words *' on or near," are used
relatively, without much regard to distance. In the hearing before
Judge Waite, the divergence was about three miles, and such ex¬
treme distance, was, in the opinion both of Judges Waite and Ells¬
worth, "on or near" the line of the canal. What is there, then, to
give to these little bounding words their legal signification? What
did the Gçwçral Assembly havç ip y.iew, jyhen they granted the ph^r-
2
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ter ; for it is their intention, as construed by the act, and not the con¬
duct or intention of the corporation, or even the Legislature of this
Ccmmonwealth, which is to govern, as to the proper course cf the
road. And here it would seem that the first thing to he regarded, was
the wants of the petitioners, and the wants of the people. The peti¬
tioners required a charter, enabling them to go to the State line, for the
purpose of connecting with the old business of the canal, and with
the business of Albany and Boston. And herein their interests, and
those of the people of the Farmington valley were coincident. Both
wanted the same thing, and the welfare of each would be affected by
the same means. Oiher legislation, however, besides that of Connec¬
ticut, would be required to accomplish their objects. They could not
cross the line of the two States, without a charter from Massachusetts.
They could only receive from their own State a license to pass to the
State line, and the point where they wished to strike it, was in a waste,
and almost uninhabited part of the country, between the towns of
Granby and Suffield. So far as either of these towns are concerned,
(in case the road was to terminate at the line,) it mattered not at which
place it should terminate. There is not a remonstrance from any liv¬
ing man presented on this account ; but, on the contrary, the peojjle
of Granby, from whose village it diverges, are here before you, on the
side of the Company.
Now what was the principal object of regard, in the mind of the
General Assembly? What was the merely incidental one? Did they
look at the welfare of the Company, and the accommodation of thou¬
sands of people, in determining the line; or at the value of a few
acres of almost valueless land ? It seems to me that the opinion of
the Judge answers these very questions against him. He admits, as a
rule of law, that, in order to save money in the construction of the
road, or to make a more eligible line, they can properly diverge a dis¬
tance of three miles from the bed of their canal. In other words, the
costs of constructing a portion of the road, the avoidance of a viaduct,
or a culvert, a deep cut, an embankment or a curve, a saving of a few
thousand, it may be of a few hundred dollars—that all, and each of
these, are elements of interpretation by means of which the meaning
of the words, " on or near" can be ascertained. And yet, the great
interests of the Company, the immeasurably greater interests of thou¬
sands of people, will not authorize the divergence of a single rod,
from the bed of the canal !
I cannot believe that such were the intentions of the General As¬
sembly. They knew the losses which the company had sustained,
they knew their wants, and the wants, also, of the people. They
Il
knew that the ultimate destination of the road, whatever might be the
wishes of the Company, was within the control of the Legislature of
Massachusetts ; and it was their intention, subject to the adjudication
of the Commissioners appointed for this very purpose, subject, also, to
their own revision, if the authority should be abused, to allow them to
strike the line of the State in the general direction of the line of the
canal, and to go thence wherever another sovreign Slate should au¬
thorize them.
But, perhaps, the most extraordinary part of the Injunction, is the
paragraph relating to the powers of the Commissioners, and which
also contains the imputation which is thrown out against them. By
the laws of Connecticut, it is made the duty of the Directors of the
corporation to locate their road in the general line of their charter, in
such manner, and in such directions, as will best subserve their own
interest. This location is subject to the supervision and control of a
Board of Commissioners, who are to look out for the interests of the
public. Notice is to be given to all persons affected, of the time for
the hearing of objections by the Commissioners. The whole subject
is open before them. If the grade is too steep, if a curve is too
sharp ; if an embankment is too high, or an excavation too deep ; if
the road crosses a farm injuriously, or comes too near the dwellings of
a village; if, in short, it does not, by its location, either in manner, or
in place, conform, according to the opinion of the Commissioners, to
the wants of the public, and the reasonable rights of individuals, they
are authorized to disapprove of the action of the Directors, and to
change the location.
One would naturally suppose, that a body chosen by the Assem¬
bly for such purposes, would be well calculated to judge upon the
facts connected with the location of a Railroad. Such men, upon a
view of the ground, and a hearing at the time, of all persons interest¬
ed, may be as well qualified to exercise a sound discretion as to the
wants of the people, and even as to the limits of a charter, as a Judge
at chambers, who must depend upon, at best, evidence received at
second-hand ; and I can conceive of many things " more alarming"
than the submission of questions of damages to lands to persons so
appointed.
This proceeding in Connecticut, is analagous to the appointment of
Committees by our Legislature, to change the routes of turnpikes ;
and also to the powers of our County Commissioners. Formerly, our
highways were located by our Courts. But it was found that a view
of the premises was necessary, and therefore a body of men were
chosen by the people; to'do for us acts more nearly afiecting the near-
ti
èitfe Tntèï'ëstà bf áll our jjéoptè, tbaÄ those which arfe sö alaríiiirtg tó
the íéarnéd Judge. Their discretion is attacked by him with the in-
éinuation that they are chosen generally by the nomination of the
feonjpauy. Can yon go behind one of his own decisions, and inquire
by tvhora he was recomhiended, or speculate upon his local interests^
or arialyze his private feelings for the purpose of invalidating it? It
is ertough to Say, that by whomsoever nominated, they Were chosen by
the power, which, in Connecticut, is the source of all judicial appoint'
meiits ; ánd ás tO this Board of Commissioners, I am informed that if
all the officers so appointed were as Well qualified for their respective
duties, it would be a great desideratum in that State.
It is urged, Forther, against their proceedings, that the Directors
first laid out the roàd with référencé to their own objects ! Who else,
under thé laW, Was to do it? And whose objects, within the scope of
their charte?, Werè they to regard, but their own ? The Commission¬
ers afé thé'persons to look out for conflicting interests; and when the
Jud^èsàyS that all they did was " to approve," We say, in reply, that, if
all ótfr proceedings were just and proper, what else had they to do
They were Wot to declare that the road was " on the line of the ca¬
nal," or "'near it;" nor that it bad " any relation to the canal," or
Was to "be " made foV it." They were only, as I understand the law, to
reject àr approve in the whole, or in part ; and this they did. They we're
not required to report particular facts, or to givè reasons for their de-
cisidn j afrdi't was, perhaps, wise in them to content themselves with à
Correct deci.sioft, without assigning, as 'many ether persons sometimes
do, very foolish reasons for it.
But, it is also urged, the Commissioners could not enlarge the pow¬
ers of 'this charter ! No more caU the Judge, noár the Court itself en¬
large it. Within the scope of their Own powers they can construe it,
and within thóSé limits the decision of the one body is âs conclusive
a's that of the other. The Judge himself says that " within their juris¬
diction, they may exercise à sound discrétion ;" and as there is no ap'
pellaie jurisdiction to the Superior Court, their discrétion must neces¬
sarily be conclusive and final. Thè great question then is, what is
that jurisdiction ? Where doés it begin and end, and what authority
has the Superior Court over their adjudications ?
I apprehend, that thè ÖhsWer to thèse questions, rnay be found in
tiie Opinion of the Judge. Wlléh they aré adjudicating upon a loca¬
tion, Within the limits of the charter, as the same is enrolled in the ar¬
chives of the State, they are within their jurisdiction. But, when they
undertake tö ekfend that location beyond the Words of the act, then
(hey WxCeéd thteftr powers, hhd tWe 'authority of thé Suprême Court at'
IS
taches. Let me illustrate my meanitig. If the charter had fixed one
terminus at New Haven, and had named the several towns, through
Which the road shonid pass, to the line of the State, in the letón of
Granhy, and the location had been made in Suffield, the Commissioners,
except in a case which I will notice, would manifestly have exceeded
their authority, in approving it. The words 'on ornear,' in such case
would have had a certain and definite meaning. A court could as well de¬
cide upon such a case at chambers, as upon the ground ; and a decision
could as well be had at a remote distance of time, as at the present.
The conflicting statements of witnesses, as to disputed facts ; the
doubtful evidence, of the intention of some of the corporators, or the
declarations of others; the misunderstanding of interested counsellors,
as to what was said, or admitted, or agreed ; all those thousand cir¬
cumstances, which naturally require the aid of a Jury to settle, would
not embarrass the Court, in the decision of a question of law. The
termini would be fixed, the line fixed, and the Court would not be
charged with assuming an offensive jurisdiction, in declaring the in¬
tention of the legislative body.
But when neither the termini, nor the line, are fixed by the names
of towns, or distances, or monuments, and on the contrary only a
general line of direction is given, for particular objects, and that line
is left to be ascertained by the judgment of men, the nature of the
ground, the costs of construction, and the object to be accomplished,
who can say, that a body of men, appointed by the chartering power,
for the purpose of deciding if the road which is to be located, is in
the proper place, are not of all others, the appropriate tribunal to
make such a decision.
It is assumed by the judge that the northern terminus is fixed, and
hence as it seems to follow, the Commissioners exceeded their powers,
in allowing it to be changed. His argument, and I may say his de¬
cision, hinges upon this assumption. Let us see if it is a correct one.
It is certain that the terminus, at the State line, is not fixed at
Gratiby, by the words of the act, though we have pages of argument
to prove, that it ought to have been so fixed. It is, also, admitted
by him, that the northern terminus, is in fact, in Suffield. His words
on this subject, are ' passing through the north line of the State, close
to the line of Granhy and just in the edge of Suffield.' We are
then, at the line, in Suffield, and we have a right, by the most strict con¬
struction, (to build it ' on' the canal) to terminate it in Suffield.
Although Suffield is not named this is the law; for the commissioners
need not be told, that immovable monuments will govern, in settling
a question of boundary, in preference to courses and distances, or
If
the unmarked lines of towns. I may say also that we may not ter¬
minate it in Granby, according to the opinion of the judge, for we
have no right to change the terminus from a legal point, to another
town. How then the Petition for the road from Westfield, to the
State line, in the route surveyed, can connect with our road in Granby,
is a question which they will not find answered in the opinion of the
judge.
Now, if at the line, we are rightfully in Sufiield, as a question of
law, we ask where in the line that point is ? We are not bound by
the illiberal word ' oji' to the bed of the canal, and the word ' near'
adds a little to our longitude, east.
Where, I ask, is that precise point, in which our departure ceises to
be legal? -With the charter in his hand, what can he point to, in its
terms, which will enable him to fix upon one point, in preference to an¬
other ? What is there, as a fact, to give to him as a Judge, a pre-emi¬
nence in judgment, over a Board of Commissioners? I can see noth¬
ing; and with all respect to that most estimable gentleman, I may say,
that such a body of men as these Commissioners, for the purposes of
such an adjudication, are better qualified than he is, with the aid of all
his learned brethren of the bench. It is peculiarly a matter of fact,
to be passed upon by practical men ; by men of the same pursuits and
habits of mind, as were the members of the Assembly, who granted
the charter ; and as the Commissioners are allowed to have a view of
the premises over which the road is located, and to hear the parties in¬
terested, as to the route of the road, they have the means of forming
a more correct opinion, than the Assembly itself. The point at the
line, is as much to be settled by them, with reference to its distance
from the bed of the canal, as any other point along the line ; and un¬
less they have gone beyond their powers, in fixing upon it, their adju¬
dication is final.
Passing over other portions of the opinion which are obnoxious to
' a severe and ruinous' criticism, I ask the Committee to consider
whether the facts which have been proved, do not deprive it of
all its applicability here, however correct he may have been at the
time when it was made. And, as to this subject I affirm, that, upon
the well-settled principles of equity practice, from the earliest times, in
England and in this country, the learned Judge, upon the facts before
you, would have refused to issue this Injunction. " It was admitted,"
says he, "that the petitioner is the absolute and unqualified owner of
the land in question." - " There is no evidence before me that the pur¬
chase is not a fair one, and I see not but this petitioner stands here as
would any other person." Is such the evidence here? Is he the own-
15
er, absolute and unqnalifíed, of the land? Was the purchase a fair
one? Did he go into the Court of Equity with clean hands, seeking
for equity, because he was ready to do it? Or did he not, rather,
sneak away from the tribunal of his choice, and conceal himself in
the office of the Attorney who instituted the proceedings, without his
knowledge oT consent, and who, together with his uncle, had the whole
charge of a case, with which, though in his own name, and ostensibly
for his own benefit, he confesses he had nothing to do?
But I need not even allude to the evidence before you on this point.
If the total inability of Loomis to purchase the lot; the uselessness
of it to him for any purposes of use or profit; the agencies of his un¬
cle in the purchase, and (confederating with Smith) in the equity
process; his avoidance of a subpœua to compel his testimony, which,
if his case was not fraudulent, he would have been eager to give ■
the connivance of an agent, having knowledge of the subpœna in
keeping him secreted ; the employment of counsel so numerous, and
with a small exception, so highly respectable; the gross inade¬
quacy of value between the land, and the costs of litigation ; the to¬
tal want of motive, on his part, for the purchase, or for refusing a
liberal compensation; the knowledge of the location, at the time of
the purchase, and of the probable expense of contesting the claim;
and on the other hand the threats of Mr. Pond, his interests, his feel¬
ings, his motives; if I say, all those facts, as they have been arrayed
and enforced by my associate, do not bring this transaction within the
denfiuition of fraud, which has been quoted from the Digest, then I
confe.ss, that I am unable to describe the habiliments, in which fraud
clothes itself.
With these remarks, upon the injunction, I proceed to a very brief
consideration of the evidence, applicable to the Petition of the inhab¬
itants of Westfield.
There are three general objects to be regarded by the Committee,
in passing upon the question of public exigency, for a rail road char¬
ter.
1. The interests of the stockholders, by whom it is built ;
2. The welfare of the people ; and
3. A proper regard to the rights of existing corporations.
As to the first point, it is in general safe to let capitilists be their
own judges. If the outlay is foolish and inexpedient, and the work
will never be built, or if a road rival in its object is about to be char¬
tered, it may be proper for the refusal of a charter. Such an act
might, perhaps, be a kindness in some cases, as it undoubtedly would
have been to the Canal Company, if ' the severe and ruinous compe-
le
lition' oould have beèn foreseen. But, in the present case it is too
late. The funds are raised, the materials are provided, ' the hour has
come, and the man !' and the sympathy of my eloquent friend would
have been better expended upon the poor laborers, waiting for leave to
perform their contracts, and receive their pay, then upon ' a man of
great respectability, stimulated by brilliant expectations,' who is ready
to lavish his thousands of dollars, in opening the avenues of trade to
tens of thousands of his countrymen.
Is the charter needed for the welfare of the people? My associate
has so fully collated and commented upon the evidence which has
been spread before the Committee, that I shall add nothing to his able
argument upon this point. The committee has seen and heard the
witnesses, the scores of petitions, verified by thousands of names ¡
and they can judge of the interest which is felt on the subject, by the
industrious and enterprising population of this vast and fertile valley,
And nothwithstanding the ease with which names can be obtained to
a petition, where there is nothing to pay, they are aware that not a
single name is produced from this great valley, remonstrating against
us.
I commend, also, to the Committee, the minority Report of last
year, which declares that the local business of the road is sufficient for
its support.
There is, however a more conclusive piece of evidence ; the adjudi-.
cation of the General Assembly of the State of Connecticut. To say
nothing of the act incorporating the canal, and under which, such vast
sums have been expended let us refer to the act, authorizing the
company to change their canal into a rail road, and to the evidence ber
fore the Committee, that, though it is but partly constructed, and is, as
yet shut out from all the ' through business,' tbere is now business
enough to render it a good dividend paying road.
I shall waste no tnore time on this question of the exigency for the
road.
I assume that it is needed, and I presume that my learned friend,
who is to follow me, will concede the necessity of a road from the line,
to the towns of Westfield, or Springfield. The only question be¬
tween us, I apprehend, will be, to which of these towns shall it be
granted ?
As bearing upon this question we may refer to the purposes, for
which the rail road was chartered, and the persons and the business to
be accommodated by it. It is even urged by the counsel that the assem¬
bly contemplated nothing more than a mere change in the mode of
transit, from water to iron, with such divergencies as the change of
n
the tintes'iBsy^haye^readered meessary. Now if the canal was intend»
©1, as I trust has already been shown, t» accomtnodate the people of
the Farmington valley to go North, and to enable them to obtain the
products of the North, for their own uses at their own doors ; if in
other words, it was designed to make nse of the cand for other pur¬
poses, than for the merely local business of the canal, between its two
termini, regardless of its extension from Northampton to the north
line of Massachusetts, and thence northwards, between the States of
New Hampshire and Vermont, it would seem to follow as a matter of
course, that a divergency would be a proper one, which should enable
ns to reach that business wherever it may at present, be found. ' Tem¬
pora mutantur, et nos mutamur cum Ulis.' How is this object to be
accomplished by the opening of our road to Westfield 1 All inter¬
course between Westfield and Northampton, by means of the canal,
has ceased. It is closed. Its business passes by Rail Road, from the
north line of our State, by means of the rail roads on the River, to
Springfield ; and if we were to go to Westfield, and call for it, we should
receive back only an echo to our call. ■ The only way, in which we
can be ' put into communication' with it, is by going to Springfield,
where we may take it up, and convey it as it formerly was conveyed, to
the inhabitants of the valley.
But how stands the evidence before the Committee, oh this subject?
Where do the people, for whose benefit the road is to be made, wish it
to go? There is but one voice from the whole valley. There is not a
discordant note. Not one man from Connecticut except, Mr. Howe
of Hartford, has expressed a contrary wish, or hazarded a different
opinion. As to Mr. Howe, it appeared from his evidence, that he not
only knew all about the wants of the valley, but he seemed to expect
the Committee would believe that he controlled the principal part of
the business himself. He displayed, however such an utter igno¬
rance of the subject of which he was called to testify, and showed so
clearly that he appeared to swear up to the present necessities of the
case, that he could have inspired the Committee with no other senti¬
ments than a disbelief of his facts, and distrust of his opinions;
Mr. Gilraore, the President of the Western Railroad, is also relied
upon for evidence as to the wants of the people of the valley ; and he
has volunteered the opinion that a road to Westfield would as well ac¬
commodate them, as a road to Springfield. But what does Mr. Gil-
more know of the wants of that valley? Has he ever traveled in it?
Does he know the population and business, or the situation of its
towns?' He confesses his utter ignorance. He evra admits/that be-
3
fore the present hearing, he did not know of the existence of such a
place as Tariffville ; and although thousands of tons of its freight have
been transported over the Western Railroad during his own superin¬
tendance of it, and though his own house is probably carpeted with
the production of its looms, he is not only ignorant of its wants, but of
its very existence. My friend here may compliment Mr. Gilmore as
highly as he pleases; he may declare his readiness to sit at the feet of
this Railroad Gamaliel for instruction upon the subject, and consider
him as the idol of his Railroad worship ; yet I trust that the Commit¬
tee will prefer, rather, the testimony of a man, whose knowledge of
geography extends a greater distance than eighteen miles from the line
of his road. If our witness, Mr. Olney, were present, I should advise
him to seek his instruction ; as it is, I commend to him the purchase
of one of his geographies.
Now, what is there to control this vast amount of evidence, in favor
of a road to Springfield ? For what purpose is it intended, if it shall
be built toWestfield, and by whom is it to be used?
That it will be a convenience to the inhabitants of Westfield and
Southwick, is a conceded point. It will save them the payment of
freight and passage from Westfield to Springfield, in the transit of
their freight and passengers from the former place to New Haven. It
will also accommodate the business at the mills at Russell, Chester
Factories, and Chester, and enable the people of those towns to send
their goods with greater cheapness and expedition towards their south¬
ern market. But the market itself will be open, if the road goes to
Springfield. They are only thereby subjected to the additional delay
and expense, a loss which, in comparison with the greater amount pro¬
ved, by the way of Springfield, will be vastly less to them than benefi¬
cial to the public.
It is said further by Mr. Gilmore, that the extension of the road to
Westfield will render the route to New York more expeditious and
secure from Pittsfield and vicinity, than by the present route, down the
Housatonic road. It seemed strange to me, knowing something of
the practice of the present management of the Western Railroad, that
there should have been exhibited such a sudden zeal for the accommo¬
dation of Westfield. We never have seen at Westfield such symp¬
toms of accommodation. Daily, passengers from New York, Hart¬
ford, and places along the line of the Hartford and Springfield, and
the Hartford and New Haven roads, arrive immediately after the West¬
ern train has left the Springfield Depot, and they sometimes see the
train upon the bridge wending its way to the West, and yet they are
19
compelled to wait until the next morning before they can go to their
destinations. A change of only fifteen minutes would save this.
Until within a few weeks, a person from Thompsonville would re¬
quire two days to get to Westfield, and three days to go to Great Har¬
rington. The first day, after a ride of some twenty minutes, ho would
reach Springfield between one and two o'clock P. M. The next mor¬
ning at 9, he would be transported to West Stockbridge, arriving
there at about 11 o'clock A. M. After a sojourn of nearly a day
among the marble yards and quarries of that industrious village, he
would be taken up and conveyed some ten miles, to Harrington.—
Such has been the course of travel for years, in spite of petition and
remonstrance ; and the testimony of Mr, Copeland is anything but
flattering to the accommodation of the President of the Western Rail¬
road. I could not, then, but be agreeably surprised, as a citizen of
Westfield, at this favorable indication of the mind of the President;
and when T heard him discoursing upon the impropriety of interfering
with the vested interests of existing roads, and the evils of unjust and
ruinous competition, I was struck as well with his justice as with his
spirit of accommodation. But when I heard this same distinguished
individual, horror-struck, as he appeared to be, at the thought of " the
severe and ruinous competition" which our road would bring upon the
Springfield and Hartford road, advocating the road to Westfield, for
the benefit of the people of the Farmington valley, though against
their belief and their wishes, because, thereby, the travel would be di¬
verted from the main route of Berkshire to New York, and made to
pass over the Western road instead, I found that the cloven-foot of in¬
terest was discernable under this cloak of justice and generosity, and
that his testimony was prompted, not so much by his interest in West-
field, or even in the Hartford road, as by the hope that " profits might
ensue." He wished, in short, to make the Hartford and New Haven
road a competing line with the Housatonic road, in order to increase
the profits of the road which is under his own superintendence.
I admit, as it is claimed by the counsel, that the Western Railroad
is the favorite child of the State. It has been fostered by her capital,
and is a monument, as well of her enlightened foresight, as of the en.
terprise of her citizens. Hut she does not wish it to mildew other en¬
terprises, or to stand in the way of other improvements ; and if the
small amount of stock which the Commonwealth owns could induce her
Legislature to deny a well deserved charter, or to grant an improper one
for the purpose of destroying the road of another State, I should enter
tain an opinion ,of the magnanimous spirit of the Government of Mas-
30
sachusetts^ far Ies» exalted than the-world has been nccnstonted t» en»
tertain.
If; hoTV'erer, the CTommittee shall conclude that these petitioners
have made out a claim for a charter to Westfield, then, by all means,
let both the charters be granted. It will be for the advantage of our
road, in the business which the Westfield-road will bring to us, and we,
in return, shall be of advantage to that road. Our interests will
prompt us to aiford the corporation every facility, and we shall share
with them in an united prosperity.
[The remaining part of Mr. Bates' argum'ent was devoted to the
third point, above stated, viz. a consideration'bf the duty of the Com¬
monwealth towards Railroads already chartered, in determining
whether or not to charter either of the roads now prayed for. He re¬
plied to the argument of Mr. Choate on this point, reviewed the Re¬
ports of former Railroad Committees of the Legislature, laid down the
doctrine, which he contended had been sustained by the Common¬
wealth, and commented upon the various acts of incorporation, which
had been passed, in reference to what had heen called competing lines
of road. As this subject was fully discussed by Mr. Chapman, and is
published briefly in the sketch of his argument, that portion of the ar¬
gument of Mr. Bates is omitted in this publication.]
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