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MR. HUBBARD'S ARGUMENT
<;^ JOINT SPECIAL COMMITTEE <^
ON BEHALF OF
JOSEPH TILDEN and OTHERS, Remonstrants,
ON THE HEARING OF THE
|3etUion of i\}t Ma^ov of tijc (Hitg of Boston,
ON BEBiLF OF THE CITY COUNCII,
FOR A GRANT OF THE REQUISITE POWERS TO CONSTRUCT AN AQUEDUCT
FROM LONG POND TO THE CITY,
JOINT SPECIAL COMMITTEE
MARCH VI, MDCCCXLV,
BY WILLIAM J. HUEBARD, ESQ.
COUNSEL FOR THE REMONSTRANTS.
PRESS OF T. R. MARVIN, 24 CONGRESS ST.
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Before the Joint Special Committee on the Petition of the Mayor
OF the City of Boston for a grant of the requisite powers to
construct an Aqueduct from Long Pond to the City.
THURSDAY, MARCH 6th, 1845,
IN THE SENATE CHAMBER.
Mr. Hubbard addressed the committee in substance as fol-
Mr. Chairman, and Gentlemen of the Committee :
The questions involved in the petition upon which the
committee are called to pass are of no ordinary magnitude.
The object sought to be accomplished is one not only of deep
interest to Boston as a municipal corporation — but individual
citizens, the great mass of the people, have a deep interest, if a
plan is to be adopted for the introduction of pure water into the
city, that it should be executed in a wise and prudent manner,
and that no burdens should be imposed upon them beyond what
the exigency of the case renders necessary.
Other towns and their inhabitants who are to be affected by
the execution of the plan proposed by the petitioners, have a
deep interest in the result of the investigations of the commit-
tee, and the decision of the Legislature — that their rights of
property should be protected — and that they should not need-
lessly be deprived of advantages which they now enjoy.
If the prayer of the petition is granted, and the proposed pro-
ject is executed, it is apprehended by certain remonstrants —
towns and individuals, that their rights will be encroached upon,
and that loss and damage will be sustained by them for which
adequate compensation cannot be made.
Another class of remonstrants, citizens of Boston, apprehend,
if the prayer of the petition is granted, and the project is execu-
ted in the manner proposed, it will involve a needlessly large
expenditure of money, bring upon the city a heavy debt, and
subject them and coming generations to an onerous taxation to
pay the annual interest on the debt, which will not for many
years, if ever, be met by the income from water rents.
I appear to enforce the views of a portion of this latter class
of remonstrants, who have subscribed the memorial, which has
been referred to the committee under the title of " the Remon-
strance of Joseph Tilden and others."
The former class of remonstrants, it has been said, are enti-
tled to a respectful consideration, but the learned counsel for
the petitioners has told us, that we, the citizens of Boston, ap-
pearing here as remonstrants, are not to be heard with favor.
We do not ask it as a favor to be heard, neither do we ask
to he heard with favor ^ but we claim to be heard as a matter of
It has been said by counsel that " the petition is very simple
in its character," that " there is nothing startling or novel in its
character to account for the delays and opposition which it has
encountered, and for the array now made against it." "The
city come as beggars asking the smallest boon the Common-
wealth can give."
That it may be seen how simple is the character of this peti-
tion, and how small the boon which is asked of the Common-
wealth, it is necessary to consider what is really sought for —
to analyze this simple petition.
The Mayor on behalf of the City Council prays that the city
may be authorized.
First — To construct an aqueduct from Long Pond and to
take and hold the said pond and the waters flowing into and
from the same, and also any other ponds and streams within
the distance of five miles of said pond for the purpose of fur-
nishing a supply of water to the inhabitants of the city.
Secondly — In case the city should not deem it advisable to
take the waters of Long Pond, that they may be authorized to
take the waters of Sudbury River, or so much as may be ne-
cessary to supply the city, and in case the waters of Long Pond
should be taken, but the quantity should be found insufficient,
that the city may take from the surplus or waste water of Sud-
bury River such quantity as it may be found expedient to di-
vert into Long Pond and said aqueduct.
Thirdly — To take land along the line of the aqueduct ne-
cessary for the construction of the same, and for reservoirs, gates,
water ways, drains, water courses, &c.
And the petition concludes with the prayer that ^^ such pow-
ers may be graiited to the city of Boston as shall be requisite
in the premises. ^^
But what are the requisite powers which the Mayor asks may
be granted to the city ? They are of two classes.
First — Power to take lands belonging to citizens of other
towns without their consent, and against their will — to destroy
their mill privileges — to divert streams from their natural courses
— and as a necessary consequence, to render nearly valueless
large amounts of property, the profitable improvement of which
depends upon the continuance of the manufacturing establish-
ments erected on those streams and privileges.
The learned counsel for the city in his opening argument
seems to have assumed that this is the only power which need
be granted. He has not adverted to or hinted at the fact, that
any other powers need be granted to the city.
If the power already named be granted, as a necessary con-
sequence, provision must be made for compensation to the mill-
owners whose privileges are destroyed or injured, and to the
farmers and other land owners whose property is taken,
although indirect and consequential damages to a great extent
will be suffered by the town of Framingham and other towns
for which no provision can be made.
To enable the city to make this compensation, there must
be conferred upon the municipal authorities either expressly or
Secondly — New powers of taxation to raise the money ne-
cessary for these objects, or authority to procure it on a loan,
for the repayment of which not only the corporate property of
the city will be pledged, but a lien will be fixed on the private
property of every citizen.
If the city as a municipal corporation already have power
to raise money by tax, or to borrow it for the construction of
ari aqueduct, why, with their immense wealth of which the
committee have been told — possessing as has been said one
third of the taxable property of the Commonwealth — why has
the accomplishment of a work of such pressing necessity been so
long delayed — why is it that the object "has been abandoned
in despair," what cause was there that the city should be "dis-
appointed and wearied out ? "
With property which the counsel represent to be equal in
value to one half that of all the rest of the Commonwealth,
could not the seven thousand men^ who it is said come here
" begging for a cup of pure water " — readily supply these wants,
by buying the insignificant mill privileges in the town of
Framingham and on the Concord River — and purchasing the
water rights necessary to enable them to accomplish their pro-
ject. No — thanks to the enlightened legislation of our fathers,
the powers of taxation vested in the municipal corporations of
the Commonwealth are strictly defined and limited, and no
where are they intrusted with an arbitrary power of taxation.
By the act which established the town of Boston, as a city,
(1821 c. 110 s. 1.) it is enacted that " the city shall have, ex-
ercise and enjoy all the rights, immunities, powers and privi-
leges, and shall be subject to all the duties and obligations in-
cumbent upon and appertaining to said town as a municipal
corporation," and, excepting that it is provided that these
powers shall be exercised by the Mayor, Aldermen and Com-
mon Council, these powers are no greater than those possessed
by every other town in the Commonwealth, save only where
special powers are given by particular statutes ; and no special
power is given to Boston by any statute to build an aqueduct.
What then are the powers of towns under the general laws
of the Commonwealth as to granting or raising money? And
they can borrow money only for similar purposes.
Have they the power to raise money to build an aqueduct as
is proposed ?
The Rev. Stat, ch, 15, s. 12. define the powers of towns —
" Towns shall have power to grant and raise such sums of
money as they shall judge necessary for the following purposes.
" For the support of town schools,
" For the support and maintenance of the poor,
" For burial grounds, and
" For all other necessary charges arising within the same."
Substantially the same as Stat. 1785, c. 75.
The powers of towns under these general provisions have
been the subject of judicial investigation, and sundry decisions
of the Supreme Court have been had thereon. And the result
of these decisions is, that towns have not power to raise money
except for the purposes specified in the statute, and under the
general clause, "other necessary charges," for purposes necessary
to the exercise of some corporate power, or the enjoyment of
some corporate right or the performance of some corporate duty
as established by law or long usage, not though the object to
be accomplished may be one seemingly of the highest import-
ance, or even of extreme necessity.
In Stetson vs. Kempton et al. 13 Mass. Rep. 272, it was
held that towns have no power to raise money in time of war
or hostile invasion, to give additional wages to the militia and
for other purposes of defence.
The town of Fairhaven laid a tax for these purposes during
the last war ; the enemy were on the coast, had made an
attempt to land, and were laying waste dwellings and property
in neighboring towns. Fairhaven was greatly and imminently
exposed to their ravages, and in the opinion of the town it was
necessary to raise and expend money for the immeediate de-
fence of the inhabitants. Here was as strong and urgent a case
as that of the seven thousand men, who in the fancy sketch of
the counsel have been arrayed before the Committee, begging
for a cup of water. Chief Justice Parker, in delivering the
opinion of the court, says, " The right of towns to raise or
grant money so as to bind the property of inhabitants is certainly
derived from statutes. Their corporate powers depend upon
legislative charter or grant, or upon prescription where they
may have exercised the powers anciently, without any parti-
cular act of incorporation. But in all cases the powers of towns
are defined by Stat. 1785, c. 75.
" The phrase necessary charges is indeed general, but the
very generality of the expression shows that it must have a
reasonable limitation. For no one will suppose that under this
form of expression every tax would be legal which the town
should choose to sanction." *
* The Statutes of the State of Maine defining the powers of towns are similar to
those of Massachusetts. The nature and extent of these powers has been the sub-
ject ot judicial construction in that State. Their Supreme Court recognize and
adopt the doctrines laid down by the Supreme Court of Massachusetts. See Bus-
«ey V8. Gilmore, 3 Greenleat's Rep. 191. Hooper vs. Emery, 14 Maine Rep. 375.
In the case of Willard vs. the Inhabitants of Newbury port,
12 Pick. 227 — Shaw, Ch. J. commenting on the preceding case,
says, "Among other things it is stated that the erection of
public buildings for the accommodation of the inhabitants, such
as town houses and market houses may also be a proper charge,
and may come within tlie fair meaning of the term necessary ;
for these may be essential to the comfort and convenience of
the citizens," and adds, " I presume from the general reasoning
of the court in that case, the court itself would hardly be pre-
pared to say that towns might lay taxes, and assess money for
the accomplishment of all objects essential to the comfort and
convenience of the citizens." And in Spaulding vs. the hihab-
itants of Lowell, 23 Pick. 76, the same learned Judge, com-
menting on the clause necessary charges in the statute, says,
'' But the court are not at all prepared to say that under this
term other necessary charges coupled with the previous clause,
such smns as they shall judge necessary, it was intended to au-
thorize towns to raise and appropriate money for general objects,
or that it was intended to constitute a new substantial power
of taxation. It would be letting in all the mischiefs arising
from an unlimited and arbitrary power of a majority to bind a
minority to an unlimited extent. On the contrary, we think it
referred to other provisions of law and well established usage
to ascertain what the objects of town charges are, and to pro-
vide that towns might raise money for any purposes thus de-
termined. But to bring any particular subject within the de-
scription of necessary town charges, it must appear to be money
necessary to the execution of some corporate power, or the en-
joyment of some corporate right, or the performance of some
corporate duty, as established by law or long usage^
The object which the petitioners are seeking to accomplish
is not one which, by virtue of any provisions of general law, or
long established usage, the towns of this Commonwealth are
authorized to undertake.
The fact that the city contains one seventh of the population
of the Commonwealth, or that the aggregate property of indi-
vidual citizens is equal to one half the property of all the rest
of the inhabitants of the Commonwealth, does not enlarge or
extend their powers of taxation for municipal purposes, to ob-
jects for which other towns of the Commonwealth cannot by
law raise money.
But it has been said, that we are a tniiiority in this matter,
and that the legislature are not to sit as " referees between ma-
jorities and minorities" — and we have more than once been told,
somewhat triumphantly, not to say tauntingly , that we should
have discussed the questions now before the committee at Fan-
euil Hall and at the polls.
When this great majority is so often pressed upon the atten-
tion of the committee, we beg that the facts may be borne in
mind, that the whole number of voters in the city of Boston
exceeds nineteen thousand, and that the whole number of
votes in favor of the Long Pond project, was less than sixty-
When cities or towns, city councils or selectmen, undertake
to act — or vote — or express opinions on subjects in regard to
which they have no authority, by virtue of the powers vested
in them as municipal bodies, to bind the city or town, such act
or vote cannot be considered as the corporate action of the city
or town ; it has no binding effect on the minority, nor are they
in any way concluded thereby, nor are the minority estopped to
protest against the measure, whether discussed and voted on by
the city council, or by a council of one hundred and fifty or
fifteen hundred in Faneuil Hall,* or by a mass meeting on Boston
Common. When a minority are to be bound by any measures,
to authorize which, the majority pray the Legislature that
new powers may be conferred upon their municipal author-
ities, and when that minority respectfully remonstrate against
conferring the power sought, it is no answer to the remonstrance
of such minority — nor any argument in support of the claims
of the petitioners, to say — " The Legislature are not referees
between majorities and minorities." "Go to Faneuil Hall and
discuss the question." "Go to the polls."
But how is this majority made up ? Six thousand voters say
that they are in favor of bringing water into the city from Long
Pond ; over two thousand declare their opposition to the meas-
ure — and eleven thousand express no opinion on the subject.
* Mr. Brimmer, the late mayor, who presided at the meetings at Faneuil Hall,
at which the water question was discussed, testified, that they were very thinly at-
tended considering the importance of the question ; that there might have been
from 1,000 to 1,500 persons present at the last meeting, and from 150 to 200 at the six
Thus stands the case with the voters of Boston. This is the
character of the boasted majority on this question.
In the position taken by us, that new powers of taxation
must be conferred upon the municipal authorities, to enable them
to execute the purposed undertaking, we are sustained by the
opinion of one of the learned counsel now advocating the pro-
posed measure, given when called upon to advise the city au-
thorities and acting under the sanction of official responsibility
as their legal adviser.* The powers spoken of by the citj^ so-
licitor manifestly have reference to powers of taxation, power
tO' raise money for this purpose. His opinion was not needed
to inform the mayor or the city council, that the city had not
power to take the land of people in the country, their ponds
and water courses — and to destroy their mill privileges without
their consent and against their will— -unless specially authorized
so to do by new powers conferred by the Legislature.
The petitioners then in seeking the requisite powei^s to ac-
complish the object proposed by them, not only ask the Legis-
lature to exercise the right of eminent domain, by authorizing
them to take private property for an alleged public use, but they
also ask that additional powers may be conferred upon the
municipal authorities of the city, to raise m.oney for a purpose
for which hy the general laws of the Commonwealth municipal
corporations are not now einpowered to raise money.
When the city government petition the Legislature for the
grant of such enlarged powers, the power to exercise the right
of eminent domain and the power to raise money for a purpose
not now authorized hy law, the Legislature will require it to be
fully and clearly proved — that a plain case — a strong ease of
^Annexed to a report of the committee on the introduction of pure water, made
to the city council, Jan. 29thj 1838, is the following letter :
City Solicitor's OflBce, Jan. 22d, 1838.
Hon. Samuel A. Eliot, Mayor,
Sir, — I have received your letter communicating a vote of the city council, in which
an inquiry is made ^'^ whether or not it will be necessary to apply to the legislature
for additional powers to enable the city to construct works on either plan proposed
by the commissioners or some other source."
In answer to this question, I am of opinion that under the municipal powers now
granted to the city by the charter, the city has not authority to provide for the intro-
duction of pure water in the manner which is understood to be in contemplation by
the city government, and therefore that it would be necessary foi- that purpose to--
obtain further powers from the legislature.
I am Sir,
Your ob't. servant,
JOHN PICKERING, City Solicitor.
urgent necessity exists requiring that the powers prayed for
should be granted.
If a large majority of all the voters in the city should come
and pray that such additional powers may be conferred upon
the city government, the Legislature will not the less guard
and protect the rights and interests of the minority.
Much more will the Legislature require plenary proof, that
urgent necessity exists for the grant of such powers, if they are
claimed on the ground of a popular vote, where less than one
third the legal voters of the city have by their ballots expressed
an opinion in favor of the proposed measure.
And when the Legislature are asked to confer such additional
powers for the accomplishment of a single specified object, it is
the duty of the parties seeking to have such power conferred,
to establish by conclusive proof, that a necessity exists for the
accomplishment of the proposed object, to the extent claimed
by them — that the manner in which they seek to accomplish it
is wise and proper — and that no burdens beyond what the exi-
gency requires will be thereby imposed on those who deny the
necessity of the measure.
The same stringent evidence will be required in regard to
the exercise of the right of eminent domain.
In other words, I submit, that the Legislature will grant new
powers of taxation, and exercise the right of eminent domain
to such extent only as the exigency of the case proved abso-
It is not enough for the petitioners to show that some neces-
sity exists, and then claim that powers shall be conferred upon
them to an indefinite extent to provide for that necessity in
such way as they shall see fit. They must satisfy the Legis-
lature that the mode of providing for the exigency proposed by
them is a wise one — and that in its execntion there is no
further encroachment on the rights of others than is absolutely
It is incumbent on the petitioners in this case to establish
four propositions before they can reasonably ask the Legislature
to confer upon them the requisite powers to carry their proposed
plan into execution.
. L That there is not at present an adequate supply of pure
water within the city to meet the actual necessities of the in-
2. That these actual necessities cannot be supplied otherwise
than by the exercise of additional powers to be conferred upon
the city as a corporation, or upon its municipal officers, and by
the resources of the city as a municipal corporation.
3/ That the actual necessities of the city are so great as to
require the exercise of the powers which the Legislature are
asked to confer upon the city, and to the extent sought for,
and the expenditure of so large a sum of money as will attend
the execution of the proposed plan.
4. That the proposed plan will in the best and wisest man-
ner accomplish the purpose for which it is designed.
The learned counsel for the petitioners assumed, that they
had made out their whole case upon showing what had been
the action of the citizens of Boston and their municipal authori-
ties during the last twenty years, and especially their doings
the past year.
This position though very simple in its character, as much so
certainly as the character of the petition itself, is certainly en-
titled to the merit of originality. If it be admitted as a general
proposition, that all petitioners best know their own wants and
the proper mode of providing for them, the committee on Rail-
ways and Canals and the other committees of the Legislature
might be spared an immensity of labor, and short sessions of
the Legislature, which have been thought so highly desirable,
would speedily be attained.
But the peculiar nature of the subject, it is contended, ren-
ders this species of evidence in the present case conclusive. It
is said, " A man knows when he is thirsty, and when he avers
such to be the fact, no one can gainsay his declaration."
But this argument may be enlarged, the principle admits of
a more extended application ; " a man knows when he is
hungry," "a man knows when he is suffering from cold," and
when he asserts that he is in danger of perishing from want of
food, or necessary clothing, " who can gainsay the truth of his
Suppose ^^ the seven thousand men" whom the imagination
of the learned counsel has summoned before the committee, as
witnesses in their own case, begging for a cup of cold water,
should set forth their need of food, or clothing, or fuel, and
should by their ballots declare themselves to be in favor of
" procurifig a supply of any one of these necessaries of life at the
expense of the city, on the condition that those of the inhabitants
who may elect to take and use the same, shall he required to
pay therefor such reasonable tax as shall hereafter be fixed and
established by a Board of Commissioners that shall be cre-
Would the Legislature regard such a declaration as evidence
of the necessity or wisdom of niaking provision for the want
thus set forth in the manner proposed, though the conclusion
of the seven thousand voters, might have been formed after an
agitation of the subject for twenty years, or even for a longer
period ? The committee or the Legislature probably would not
hesitate long in coming to a decision.
Take another case ; a man knows whether he is poor, he may
declare that he wants the needful wherewith to procure all the
other necessaries of life ; " who can gainsay the truth of his de-
claration ? " Suppose a goodly number of the voters of Boston
suffering from such a want should come to the conclusion, that
it was owing to the depressed state of business in the city — that
means should be adopted to increase the facilities of business —
and in a general meeting of citizens should by a large majority
of votes decide it to be expedient — that new channels of inter-
course should be opened with foreign lands or with distant parts
of the Union, for the purpose of increasing the facilities of bu-
siness for the people of Boston — and should lay out plans for
accomplishing these objects — and declare it to be their opinion
that these plans should be carried into execution at the expense
of the Commonwealth or of the city — would the Legislature ac-
cede to the proposition, that they knew what they wanted, or
that their decision in the matter was evidence either of the neces-
sity or wisdom of adopting the measures proposed by them.
The cases which I have supposed are not altogether fictions
of the imagination.
Let us see what light the history of the action of the citizens
of Boston in ^^ general meeting assembled'''' affords to establish
the position, that their ^^ sic voW is conclusive or even prim^a
facie evidence of the wisdom or necessity of any measure which
they may declare it expedient for the Commonwealth to adopt,
or that the city as a municipal corporation should have power
At a general meeting of the inhabitants of Boston assembled
in Faneuil Hall in February 1829, two resolutions were adopted.
First — That it was expedient that the Commonwealth should
construct a Rail Road from Boston to the western line of the
State — and also another from Boston to Pawtucket, near Prov-
Secondly — If the Legislature deem it inexpedient to construct
said roads wholly at the expense of the State, that the City
Government be authorized to apply to the Legislature for an act
to enable cities, towns, bodies corporate or individuals to sub-
scribe to such portion of the stock as may not be taken by the
State on such terms and conditions as may be deemed expe-
On the first Resolution the ballots were, 3138 yeas, 24 nays.
On the second Resolution, 3041 " 59 "
Here the proportion of votes in favor of the measure was
much greater than upon the matter now submitted to the con-
sideration of the Legislature — being on the first resolution in
the ratio of 130 yeas to 1 nay, and on the second resolution be-
ing 50 yeas to 1 nay.
But notwithstanding this very decided expression of the
citizens of Boston and of their judgment as to the proper man-
ner of providing for their wants, the Legislature did not bow
to the judgment of the people.
The people of Boston, however, were by no means dis-
couraged. In the year 1830 another general meeting of the
citizens was held — at which it was voted to petition the Legis-
lature for leave to subscribe ^1,000,000 to a Rail Road to the
The whole number of ballots was . . 2498
1966 yeas— 532 nays— 2498
There was some abatement of zeal during the year, but
the majority was to the minority more than 4 to 1 — greater
still than in the present case.
The petition was presented in due time to the Legislature,
and there were one or more remonstrances of citizens of Boston,
all which were referred in the house to a special committee, at
the head of which was an able jurist, Hon. William Baylies,
who submitted a report, which is among the printed documents
of the House of Representatives, for the years 1830 — 1831,
No. 54. In this report the reasoning of the Supreme Court in
Stetson vs. Kempton before cited, is quoted, and relied upon
by the committee to sustain their conclusion, that the rights of
minorities should be protected against the arbitrary power of
The committee recommended that the petitioners should have
leave to withdraw their petition, and their report was accepted,
the Legislature in those days not judging that the necessity or
wisdom of the proposed measure was established even by so
decided a vote of the citizens of Boston.
That conclusion was a sound and wise one — that the action
of the citizens of Boston and the declaration of their wishes or
opinions, is entitled to no more weight as evidence of the ne-
cessity or wisdom of any measure, than the actions or declara-
tions of any other set of men, in regard to any object which
they desire to accomplish.
Upon the evidence which has been adduced by the petition-
ers in the present case, in reply to the evidence offered by the
remonstrants, it is admitted, and indeed the remonstrants whom
I represent in their memorial admit, that in some sections of the
city, the supply of water from natural sources is inadequate to
meet the actual necessities of the inhabitants, and to this
extent I admit that the first of the four propositions is estab-
But admitting a necessity to exist, it does not follow that
the second proposition is established, viz:
" That this necessity cannot be supplied otherwise than by
the exercise of additional powers to be conferred upon the city
as a corporation, or upon its municipal officers, and by the re-
sources of the city as a municipal corporation."
The views of the Memorialists whom I represent are thus set
forth in their memorial.
" Your Memorialists also represent, that while they admit
that the wants of certain parts of the peninsular portion of the
city require the introduction of a copious supply of pure soft
water, — they feel a confident assurance that those wants can be
adequately supplied by a private corporation, at a much smaller
expenditure than it can be done by the city. And they have
no doubt that if a charter should be granted with suitable pro-
visions, the necessary funds would be speedily raised to con-
struct an aqueduct, which with the one now m operation, will
be amply adequate to supply the existing wants of the city and
its increasing wauts for many years to come. Your Memorial-
ists therefore deem it an impolitic and wasteful expenditure of
money to introduce a colossal aqueduct, whose magnificent pro-
visions are to suffice for the city when its inhabitants shall
number 300,000, when a comparatively small expenditure will
furnish an aqueduct which, with the supply of water now en-
joyed, will abundantly meet the wants of the city for half a
century — leaving a distant posterity to make some provision for
their own wants."
Is there any ground for their confident assurance that these
wants can be adequately supplied by a private corporation ?
Mayor (iuincy, as chairman of the first committee ever ap-
pointed on the subject in a report made in 1825, says — " Your
committee have reason to believe that capitalists may be found
willing to join the city in carrying into efi'ect such an underta-
king, but whether an association of this kind ought to be
formed, whether it ought to be left to private enterprise or be
wholly effected at the expense of the city, are questions on
which there is a diversity of opinion."
Mayor Armstrong, as chairman of the committee on the sub-
ject of water in 1836, says, " a majority of the committee are
of opinion that the city in its corporate capacity ought not to
embark in this enterprise, but that it should be left to individuals
alone, or individuals in connection with the city."
In that year the Boston Hydraulic Company was incorpora-
ted, with power to introduce water into the city, and for that
purpose to take any ponds or lands covered with water, situated
northward of Charles River and within twelve miles of the
city, but the act was to be void, unless assented to by the city
council. Upon the report of Mayor Armstrong just cited, re-
commending such action, the assent of the city council was
given. And as Mr. Eddy has testified — he procured several
subscriptions to the stock, and one enterprising and liberal
citizen agreed to take all the stock which should not be taken
up by other subscribers.
But the success of this enterprise was defeated by the action
of a general meeting of the inhabitants in the month of August
in the same year, who voted that it was expedient that the
work should be undertaken by the city. Capitalists were not
willing to embark in such an undertaking, with the prospect of
encountering the competition of the city as a corporation.
The same fear of competition with the city has doubtless
operated to deter capitalists since that time from embarking in
the enterprise, but a cessation of any action on the part of the
city for some years, induced renewed action on the part of pri-
vate individuals in 1843, and a charter was obtained establish-
ing a company to introduce the water of Spot Pond ; but the
provision making stockholders individually liable for all the
debts of the corporation, prevented subscriptions to the stock,
and at the present session a bill has passed the Senate removing
this liability, which, if it becomes a law, will doubtless insure
the speedy filling up of the subscription for the whole stock.
The remonstrants think there are decided advantages in
having the water introduced by a private corporation. They
believe it will be done more economically than by the city —
the city will incur no risk of loss — those who want water will
alone pay for it ; and if it proves a profitable undertaking, the
city have the power to take it from the company by paying
them a reasonable compensation ; and if the city should decline
taking it, the citizens will be safe against imposition or extor-
tion on the part of the company, by the provision in their
charter authorizing the Legislature to regulate the prices of
But if the committee should, notwithstanding the objections
of the remonstrants, come to the conclusion, that the actual
necessities of the city cannot be adequately supplied otherwise
than by additional powers to be conferred upon the city as a
corporation, or upon its municipal officers and by the resources
of the city as a municipal corporation,
We then come to the consideration of the third proposition —
Are the actual necessities of the city so great as to require the
exercise of the powers which the Legislature are asked to con-
fer upon the city and to the extent sought for; and the expen-
diture of so large a sum of money as will attend the execution
of the proposed plan ?
If water is to be brought into the city at the public expense,
instead of by private enterprise, we say in the- language of some
of the petitioners to the City Council in 1838, who now ap-
pear as remonstrants against the proposed plan, and whose for-
mer opinions are now quoted against their present arguments,
'f Let the thing be done, and done as soon as by any exertion
consistent with prudence and reasonable economy is practica-
But we say that the necessities of the city have been greatly
overrated and exaggerated by the ardent imaginations of those
who have become warmly enlisted in the present movement.
Let us look at the evidence on this subject.
And first of what nature are the necessities, to supply which,
the right of eminent domain may with propriety be exercised
by the Legislature, and authority given to the city government
to incur a debt or to tax the citizens.
We contend that the wants to be supplied should be only
natural, not artificial wants, the wants for domestic uses, in
contradistinction to economical and manufacturing uses for
which the city commissioners in their several estimates provide
a liberal supply.
The counsel for the petitioners in his opening, when speak-
ing of the simple character of the petition and the unpretending
claims of the petitioners, spoke of the want to be supplied, " as
being not an artificial want, but a want common to all," al-
though afterwards, in a subsequent part of his remarks, one of
the arguments in favor of the proposed measure was, that " it
would advance the value of the real estate belonging to the
The chairman of the committee of twelve appointed by the
meeting at Fanueil Hall, in a question proposed by him to one
of the late Mayors, when testifying, and the late Mayor, Mr.
Brimmer, in his testimony, intimated one of the wants for
which it was deemed important to make provision, viz., to pro-
vide the means of carrying water by pipes without any me-
chanical efibrt to all parts of our dwelling houses.
The remonstrants contend that the wants to be supplied
should be, as stated by the counsel for the petitioners, " not
artificial wants," not the wants of the wealthy for the means
of luxurious enjoyment, not wants for manufacturing purposes,
nor for the uses of the arts.
The means of cleansing the streets as necessary to health,
and protection against the ravages of fire may properly be con-
sidered, but not so with reference to '* economical and manu-
facturing purposes," as they are styled by the city commis-
If the application were for authority to construct an aqueduct
for the purpose of supplying this latter class of wants — would
the application be entertained by the Legislature for a moment?
A familiar principle of law well settled by numerous de-
cisions of the courts is applicable to this question. No person
has the right by the erection of a new dam upon a stream of
water, to injure the water power already enjoyed and improved
by another on the same stream, however much the new estab-
lishment to be erected may exceed in importance that operated
by the power at the old privilege. Much less can the right be
claimed to divert the course of a stream of water from estab-
lished mill privileges to create a new and artificial power for
other individuals, though it may be sought in the name of a
great city. Would the Legislature grant power to divert the
waters of the Merrimack from the city of Lowell to the city of
Boston to supply such wants ; and if not from the city of
Lowell, shall the smaller town of Framingham be deprived of
its water power to supply the manufacturing and economical
wants of the city of Boston.
If then the want of water for manufacturing purposes, for the
use of distilleries, breweries, and the various uses of the arts,
does not constitute a necessity or exigency which would, per se,
justify the Legislature in granting the powers sought, neither
can such a want constitute an element in the computation by
which the necessities of the city are to be estimated.
Yet these wants are included in the computation of the
commissioners, which results in the conclusion that the
amount of supply needed will equal 28^ gallons per day for
every man, woman and child in the city ; and the immediate
supply to be provided according to this ratio of computation is
to suffice for a population of 250,000. Surely such an estimate
of the wants to be supplied may not unjustly be characterized
as greatly exaggerated.
If then the necessity of supply is limited to wants for do-
mestic purposes, for security of health and protection against
fire, what is the extent of the necessity.
It has not been of long duration. The inhabitants of the
old town of Boston do not appear to have been aware of the
existence of such necessity. There is no evidence of any acts
or doings of the town indicating their sense of suffering. The
town always had the reputation of being cleanly and healthy,
and though the people have long had the reputation of being
full of notions, it was not one among these notions, that they
were suffering for want of good pure water. When the subject
of supplying the city with water was investigated by a com-
mittee of the Legislature in 1839, several physicians were pro-
duced by the petitioners. They all testified to the fact that
Boston was a healthy place, more so even than Philadelphia,
with all the advantages for the preservation of health afforded
by its famous aqueduct.
It seems that it was not until after Boston was established
as a city, that its inhabitants began to be aware of the destitu-
tion under which they were suffering — and of the deleterious
qualities of their daily drink.
The incorporation of the aqueduct corporation in 1795 has
been alluded to as furnishing evidence of a long existing want
of an adequate supply of water. No evidence has been pro-
duced tending to show that any such cause led to the establish-
ment of this company. The fact is notorious that it was a
mere private speculation — and a most disastrous one to its pro-
jectors ; and so far as its history proves any thing, it is that the
undertaking was wholly uncalled for by the public wants. By
a communication from one of the directors addressed to an offi-
cer of the city government, in reply to certain queries, and to
be found among the printed city documents of the year 1838,
it appears that no dividend was made for the first ten years after
the work was commenced, and that the average dividend for 30
years subsequent to 1807 when the first dividend was made,
was a fraction less than four per centum per annum on the ori-
ginal cost of the shares.
But it is said, the course of action of the citizens and of the
city government on the subject for the last 20 years affords evi-
dence of the pressing nature of the existing necessity.
A review of the history of this action would lead to the con-
clusion that the necessity could not be very urgent.
The city government was organized in 1821 ; the first action
on the subject was not until nearly four years afterwards, in
May, 1825. Pursuant to the recommendation of Mayor Quincy,
Daniel Tread well, Esq., was appointed commissioner to exam-
ine and report what sources could be resorted to, and the mode
and expense of procuring a supply. He made his report which
in 1826 was referred to a committee of the city council with
authority to make further surveys, but they do not appear to
have taken any further steps. In February 1827 the petition
of the Messrs. Odiorne on the subject of supplying the city with
water was referred to a committee who reported in November
1827 that it was inexpedient to take any measures on the sub-
ject. The subject appears to have slept during the years 1828
1829, 1830, and 1831, till January 1832, when the city council
so far awoke to a sense of the importance of the subject as to
appoint a committee to look into the matter, who after delibera-
ting on the then existing exigency for the whole year, on the
31st of December reported that the further consideration of the
subject be referred to the next city council. In January 1833
the subject was referred to a committee, and in March of the
same year it was ordered that the Mayor be authorized and re-
quested to apply to the Legislature for an act authorizing the
city council to take all such measures as they should judge ex-
pedient for the purpose of bringing soft water into the city by
aqueduct. The Mayor accordingly petitioned the Legislature
on the 19th of the same month and on the 21st the petition was
referred to the next general court. In 1834 a communication
of the Mayor upon the subject of water was referred to a com-
mittee upon whose report authority was given to cause further
surveys to be made, and Col. Loammi Baldwin was appointed
commissioner who made an elaborate report, which the commit-
tee on the subject considered so complete, that they reported,
" that there was no reason to suppose that it would ever be ne-
cessary for the city council to go to further expenses for the pur-
pose of procuring surveys." But the city government of that
year and of the year 1835 either did not consider the report to
be of so satisfactory a character, or concluded that the public
exigency was not so great as to require immediate action. In
1836 a charter was granted to the Boston Hydraulic Company,
a private corporation, and the committee of the city council be-
ing of opinion that it was most expedient that the work should be
undertaken by private enterprise, the assent of the city council
was granted to the charter ; but in August of the same year, at a
general meeting of the citizens, it was voted to be expedient
for the city in its corporate capacity to undertake the project,
and the city council was requested to apply to the Legislature
for the needful authority. The city government of that year,
there being no subsequent session of the Legislature, could not
of course make the application for the necessary powers as re-
quested by the vote of the citizens, but as preparatory to future
action, a further survey was made by R. H. Eddy, Esq., civil
engineer, whose report recommended Spot Pond as a source
for supplying the immediate wants of the city, looking to Mys-
tic Pond as an auxiliary source, when the capacity of the for-
mer should become inadequate for the supply of the increasing
wants of the city. In 1837 a third commission was appointed
composed of Messrs. Daniel Treadwell, James F. Baldwin, and
Nathan Hale, which resulted in the recommendation by two of
the commissioners, Messrs. Treadwell and Hale, of the two
sources indicated by Mr. Eddy in 1836, while Mr. Baldwin gave
the preference to Long Pond.
In 1839, application was made to the Legislature for the
necessary power to undertake the work, a protracted investiga-
tion was had before a joint committee of the Legislature, but
there was not sufficient time to complete the necessary inqui-
ries, and the Legislature notwithstanding all that had been
done by the city, came to the conclusion that further light was
needed, and a resolve was passed, providing for the appointment
by the Governor and Council of three commissioners to ascertain
and report to the next general court, all the facts and informa-
tion which they might deem material in relation to the several
plans proposed.* The Mayor of the city in a report, City Doc.
1839, No. 19, communicating to the City Council the action of
the Legislature, expressed great dissatisfaction with the result,
and recommendeded the adoption of the following Resolve,
" Resolved, That it is inexpedient for the city to apply to
* The following is a copy of the Resolve referred to.
Resolve concerning the introduction of soft water into Boston.
Resolved, That the Governor of the Commonwealth, with the advice ot the
Council, is hereby authorized, on the application of the city of Boston, to appoint
three Commissioners, who shall, at the expense of said city, after having given
such notice to all parties interested as they shall think reasonable, ascertain and
report to the next general Court all the facts and information which they may deem
material in relation to the several plans proposed by said city for the introduction of
soft water into Boston ; and the bearing of the same upon the interests of all persons
and corporations which may be affected thereby.
the Executive of the Commonwealth for the appointment of
Commissioners, under the resolve of the Legislature of the
ninth of April last, to examine the subject of the introduction
of soft water into Boston."
In this, recommendation the city government concurred.
But in the same year, Mayor Eliot, as chairman of the com-
mittee on water, City Doc. No. 25, recommended to the city to
take immediate measures for the introduction of water from
Spot Pond, the supply of which combined with that from
Jamaica Pond, the committee thought would be amply adequate
to supply the wants of the city for many years to come. The
estimate in his report of the amount of supply needed, seems
much more reasonable than that of the commissioners — and his
conclusion is, that a supply equal to 14 gallons, less than half
that assumed by the commissioners, for each inhabitant, '< would
be a sufficient and liberal allowance, animals, steam engines
and contingencies included, according to the habits of the
The city council did not adopt the recommendation of the
committee. In the following year, Mr. Chapman, on his ac-
cession to the mayoralty, in his inaugural address, speaking
of the introduction into the city of a supply of pure water,
says, " It is an enterprise which if undertaken by the city,
must involve a very considerable outlay, and it cannot but be
admitted that some doubts may reasonably be entertained as to
its pecuniary results, for at least a considerable period of time.
It seems to me, therefore, that no prudent government would
enter upon it, unless with the hearty concurrence of a large
majority of its own members^ and of the citizens generally. Not-
withstanding the views which I have heretofore expressed in
another branch of the government, and with less knowledge
upon the subject, / now feel satisfied from subsequent obser-
vatioti that the public mind is not yet ready to sanction the un-
dertaking by the city government.''^
In this judgment of Mayor Chapman, the City Council, as
well as the citizens of Boston, seem to have concurred ; all
action on the subject was suspended during the three years of
his administration, except that in one year a committee on
water was appointed who did nothing — nor was anything done
during the first year of Mr. Brimmer's administration. The
doings of the year 1844 will be noticed presently.
The conclusion to be deduced from this review of the history
of Boston, and of the action of the city government and of the
citizens, seems to be, that for near two centuries, there was no
want of an adequate supply of water from natural sources
within the peninsula, that by reason of the increase of the city,
and the erection of buildings on the flats, on the borders of the
city reclaimed from the sea, a want to some extent began to be
felt some twenty years ago, on those new lands, where good
water could not be so easily obtained. And in other parts, the
neglect to sink wells and to build cisterns may have led to some
complaint of want of water. But the action of the citizens and
of the city government, since the subject first began to be agitat-
ed, fails to show a want great in extent or degree.
Though there has been at times some excitement and action,
yet the long intervals of total inaction during this period indi-
cate that the want has by no means amounted to a pressing exi-
gency. There is also much positive testimony to show that in
various sections of the city there is an ample supply of good
pure water to be obtained from natural sources.
The committee will have in their hands the printed minutes
of testimony on this point taken before the Legislative com-
mittee in 1839, wherein are the statements of many highly
respectable citizens of Boston, showing the fact, that in divers
sections of the city, an abundant supply of good water may be
obtained from wells ; some of these witnesses declared them-
selves so well satisfied with their present means of supply, that
they would not take water from an aqueduct, if it should be
brought into the city.
Several witnesses have testified before the committee at the
present hearing, among the number, Messrs. Armstrong and
Chapman, former Mayors, both of whom, while members of the
city government, had investigated the subject. The former
testified that he had never thought a supply for the whole city
necessary, the latter that he considered the statements in regard
to the wants of the city greatly exaggerated. Mr. Jonathan
Preston, a member of the late Board of Aldermen, also stated
his opinion to be that the wants of the city do not require the
introduction of so great a quantity of water as is contemplated
in the proposed plan. Messrs. Nath'l. Goddard, Isaac Liver-
raore, Joseph Balch, Charles W. Cartwright, Benj. Adams, and
Benj. P. Richardson, testified to their knowledge of copious
supplies in sections of the city within the peninsula, with
which they were acquainted, and Mr. Noah Brooks who has
been a resident of South Boston 27 years, testified to the fact
that South Boston is abundantly supplied with water, that
springs abound near the shore, and water is easily procured
there for the supply of shipping in the harbor. Mr. William
Wright also for several years a resident in South Boston gave
similar testimony, and so far as the votes of the inhabitants of
South Boston can be considered as evidence, they confirm this
Three witnesses who were called on the part of the petition-
ers to rebut the testimony of the remonstrants, Mr. Brimmer,
late Mayor, Messrs. Thomas B. Curtis and George W. Cram,
testified that in their opinion the want was very general. Mr.
Brimmer regarded the " votes of the citizens as great evidence
of want." He admitted that around Beacon, Copps and Fort
Hills, there was a good supply of water, but stated these hills
to be exceptions, that the supply on the lower lands was defi-
cient, specifying Mill Pond Lands, South Cove and Broad
Street. [It should be noted that these sections of the city are
all built on made land.] He also stated that it became neces-
sary last summer (a remarkably dry season) to deepen the well
in the cellar of the Court House, and gave it as his opinion that
there was a great want of water to protect the city against the
ravages of fire. Mr. Curtis stated his opinion to be that the
want of water is urgent, for domestic purposes, and to guard
against fire, that it is pressing on the rich and the poor, he
spoke also of the want for supplying the shipping, and from the
number of vessels which cleared at the custom house last year,
estimated the cost of supplying them to be .f 35,000. He had
heard of only one instance in which any person living south of
Essex Street who took the water from the present Aqueduct
Company, had failed of obtaining a supply. Mr. Brimmer had
no knowledge of any case in that section or on the South Cove.
* The vote in South Boston stood —
For a supply from Long Pond, . . . 119 yeas, 363 nays.
For a supply from Long Pond or other sources, 58 " 449 "
Mr. Curtis was unable to mention more than five instances in
whicii wells had failed within his knowledge. He spoke of his
knowledge of a scarcity of water at the North End, as derived
from seeing many persons coming to a pump in Bartlett street
and to a pump on one of the wharves, also of having seen
people in Broad street barefooted crowding round wells. There
has been no evidence that good water could not be easily ob-
tained by sinking other wells in the neighborhood of the pump
and wells referred to, and as to the Broad street people, they
might perhaps go barefooted after water if they were supplied
with it from an aqueduct, even though it should be given them
without cost. And in respect to the cost of supplying the
shipping, it appears by the testimony of Mr. Jotham B. Munroe,
one of the boatmen by whom the shipping in the harbor are
supplied, that the gross receipts of all the boatmen, from all the
vessels that have been supplied in Boston and Charlestown for
the last five years, has been less than $38,000. The theory of
Mr. Curtis in regard to the shipping is materially modified by
the facts in the case, and if a similar abatement is made from
his theory in regard to the city at large, the destitution is re-
duced to a comparatively small exigency.
Mr. Cram testified strongly on the subject of destitution, and
has given an account of some 269 families which he found in
Wards 10 and 11 and in South Boston which were not supplied
with water. In Dedham and Suffolk streets he traced 43 fami-
lies dependent upon one well, and also mentioned one town
pump in Washington street which supplied a great many fami-
lies. He also told the committee of divers families in South
Boston destitute of the means of supply on the premises oc-
cupied by them, and where they got their water. One fact is
apparent from his testimony, that the wells which he has men-
tioned must furnish a copious supply of water to meet the
wants of so many families, and there is no evidence that if
other wells were sunk in the same neighborhood, they would
not furnish an equally abundant supply. It also appeared on
the cross examination of Mr. Cram, that many of the families
which he visited, were among the most destitute part of our
Irish population, herded together, in some instances, a dozen
families in one tenement, and in one instance over twenty fami-
lies in one building. It is not to be denied that in many in-
stances owners of real estate neglect to dig wells on their
premises for the accommodation of their tenants, and particu-
larly when they erect tenements for the accommodation of the
poorer classes ; and it is much to be feared that few of this class
of landlords, if water were introduced by the city, would be
any more liberal in furnishing their tenants with the means of
procuring a supply from the aqueduct.
The result of the testimony on the part of the petitioners,
when carefully analysed, as I conceive, goes to establish the
position taken by the remonstrants, that the destitution is not
universal, but limited in its extent, and that in many cases
where a want of water is complained of, it is caused by a neg-
lect to resort to the use of the proper means to obtain a
If then the necessities of the city are not universal, but limi-
ted in extent, it is an important question what amount of
supply from foreign sources by artificial means is actually
needed ; for if new powers of taxation are to be given to the
municipal authorities, and authority to exercise the right of
eminent domain, they should be given to no greater extent than
the necessities of the case actually require.
I have already attempted to show that the plan proposed by
the Commissioners in 1844, which the petitioners ask for au-
thority to carry into execution, is based upon a greatly exagge-
rated estimate of the amount of supply needed, both in respect
to the nature of the wants for which provision ought to be
made, and the amount of supply which will be needed to
meet those wants. They look not only to a supply of the
present wants upon their principles of computation, but propose
that provision shall be made immediately for the wants of
the city half a century hence, when, as they calculate, the
population of the city, including South Boston and East
Boston, will be 250,000 ; and this supply they think should be
I contend that the proper course to be pursued is that sug-
gested by Mayor Chapman in his testimony, which is similar
to that recommended by the Water Committee of 1839, in the
report made by Mayor Eliot, viz : to provide for existing wants,
and growing wants within a reasonable time, and by a plan
which shall be capable of enlargement, to meet the growing
wants of the city in the distant future.
The plan proposed by the commissioners, and which is the
basis of the action contemplated in the petition, assumes that
the future increase of the population of the city is to be in the
same ratio that it has been in the past. This assumption, I
contend, is manifestly erroneous. That the business population
will hereafter increase in as great, if not in a greater ratio than
it has done, is highly probable ; but it is obvious that the
peninsula can accommodate only a limited number of inhabi-
tants, and its capacity of furnishing further accommodations is
rapidly diminishing. One fact also, is of great importance to
be considered in this connection — that dwelling-houses and also
houses of worship in those sections, contiguous to the business
part of the city are rapidly disappearing, and their places are
occupied by stores and warehouses. So rapidly have these
changes to meet the growing want of accommodation for the
business of the city, already proceeded, that the number of
polls in Ward Four has actually diminished since the year 1840,
and in contiguous wards the increase bears no proportion to the
increase in other sections of the city. This view of the sub-
ject is clearly exhibited in Mayor Eliot's report of 1839, before
referred to. *
Taking this view of the wants of the city which I have en-
deavored to establish, I contend that the evidence before the
committee shows that other sources of supply are decidedly
preferable to that which the petitioners pray that they may be
authorized to adopt.
It has been said on the part of the petitioners, " that the
Legislature cannot know whether Long Pond is the best source
of supply without an interminable inquiry."
* The following is an extract from that Report, to be found in City Doc. of 1839,
" In looking at the increase of the city in the last thirty years, and observing that
it has more than doubled in that period, it seems a natural thought which is enter-
tained by many persons, that the prospects of increasing business render it probable
that the growth of the population for the next thirty years will be at least equal.
The Committee have no doubt that so far as the business population of the city
is concerned, the calculation is not without foundation, and that thirty years
hence there may very probably be a population of more than 160,0(i0, the centre of
whose business will be the centre of the city. But the inconvenience of putting so
large a population within the municipal territory will be so great, that a very con-
siderable proportion of it will probably be induced to plant themselves in the adjoin-
ing towns, and real estate in Chelsea, Charlestown, Cambridge, Brighton, Brookline,
Roxbury and Dorchester will come in for a share of the business growth of the
capital. It is not therefore an irrational supposition that the process of doubling will
go on therefore rather more slowly; and that the attractions of the neighboring towns
in the forms of pure air, pure water, ample room and moderate rents will retard the
accumulation of 80,000 more inhabitants in the city itself, till a few years later."
I contend that it is incumbent on them to establish the fact,
that the proposed plan is the proper one, before they can rea-
sonably ask the Legislature to confer upon the city government
additional powers of taxation, and the other requisite powers to
accomplish their object.
It is not incumbent on the remonstrants to show which is
the best plan ; they think there is more than one to be preferred
to the Long Pond project, and the city authorities should not
be authorized to embark in so great an undertaking, until the
propriety of the proposed plan is made fully to appear.
I shall endeavor to establish from the evidence before the
committee, that an adequate supply of water of good quality,
may be procured at less expense — from nearer sources, thereby
proportionably diminishing the chances of accident and injury
to the structure — and by a mode of construction — iron pipes
— insuring greater certainty and less liability to accident.
I shall ask the attention of the committee to only two plans,
which, as securing these advantages, are entitled to preference.
First. Taking Spot Pond as a primary source of supply,
with Mystic Pond as auxiliary, when it shall become necessary
from the increasing wants of the city.
Second. Resorting to Charles River as the sole source of
And the principal sources of evidence will be the reports of
the several commissions which have heretofore been appoint-
ed by the city government to investigate the subject. 1
shall not weary the committee by presenting a statement in
detail of the views of the several commissioners, as to the
sources of supply — the modes of construction and the expense
— but shall content myself with directing their attention to
prominent facts and general results.
There have been only four commissions instituted to investi-
gate this subject — the commission of 1844 being appointed for
the sole purpose of estimating the expense of bringing water
from Long Pond.
1. Daniel Treadwell, Esq., was appointed in 1825, under
the administration of Mr. Quincy.
One remarkable fact is to be noticed in regard to his report,
as well as those of all the subsequent commissioners, that in
considering the amount of supply needed, they estimate for the
whole city, without making any allowance for the supply al-
ready furnished by the Aqueduct Corporation from Jamaica
iVir. Treadwell estimated that the maximum amount then
needed to supply all the inhabitants, " including the ordinary
demands by the trades, for watering cattle, streets, &c., togeth-
er with the loss by leaks, allowing every family to use the
water," would be 1,180,000 gallons ; and " making a necessary
provision for the increase of the city within a few years, the
supply ought not to be less than 1,600,000 gallons."
Stating that there were " several places within the neighbor-
hood of Boston, from which 1,600,000 gallons of water or more
might be obtained daily ; " he adds, " Two which appear to
possess advantages above all others have been examined, and
a route from them surveyed, with sufficient minuteness, to esti-
mate the magnitude and cost of works which will be required
to bring the estimated supply from them. These places are
Charles River, above the falls at Watertown, and Spot Pond in
2. Col. Loammi Baldwin was appointed in 1834 when Gen.
Lyman was Mayor.
He made an elaborate report, giving an account of the aque-
ducts of ancient and modern Rome, and in other parts of
Europe, and of some of the most important aqueducts in this
country. He also enumerated and gave some account of the
various sources of supply from which water might be procured
for the city, and in conclusion says,
" From a consideration of all the sources I have examined in
the vicinity of Boston, as before stated, the most eligible are
those of Farm and Shakum Ponds in Framingham, together
with incidental ones dependent upon them and Long Pond, in
Natick, and the mode of bringing water to the town is by an
aqueduct, without the use of pipes, to the nearest point of suffi-
cient height to allow it to flow through cast iron pipes to the
highest land in the city."
3. R. H. Eddy, Esq., was appointed in 1836, when Mr. Arm-
strong was mayor.
He recommended Spot Pond and Mystic Pond combined, as
the permanent sources of supply, first introducing the water of
Spot Pond alone, and using this as the sole source until the
wants of the city should render necessary a resort to Mystic
Pond ; the water of the latter to be then used to supply the
lower levels of the city while Spot Pond should furnish a sup-
ply for the higher levels,
4. In 1837, Mr. Eliot being mayor, Daniel Treadwell, James
F. Baldwin and Nathan Hale, Esquires, were appointed com-
missioners to make further investigations.
Two of the commissioners, Messrs. Treadwell and Hale, con-
firmed the views of Mr. Eddy, recommending Spot and Mystic
Ponds as the source of supply, the latter to be resorted to, when
needful, but proposing to introduce the water by a different
route from that indicated by Mr. Eddy.
Mr. Baldwin dissented from his associates as to the source of
supply, and in his report for the first time the preference is giv-
en to Long Pond as the sole source of supply.
One of the most prominent reasons why he dissented from the
plan proposed by the majority of the commissioners, was that
he objected to the plan of pumping up water by steam power
in whole or in part for the supply of the city.
The commissioners unite in making estimates of the cost of
supply by the two modes which I have named, and also for
bringing a supply from Charles River.
In 1838, Messrs. Treadwell and Hale, "in compliance with
the order of the City Council, having carefully revised their
report of November 22, 1837," submitted the result of that re-
vision to the city government. They reconsidered the opinion
expressed in their former report " in regard to the probability of
the quantity of water assigned as the standard, namely, twenty-
eight and a half gallons to each inhabitant, being required,"
and having exhibited a statement of the amount of supply fur-
nished to the cities of London, Philadelphia, Edinburgh, Glas-
gow, Greenock, Manchester and Liverpool, showing the ave-
rage of the whole to be fourteen and a half gallons a day to
an inhabitant, they came to the very rational conclusion that it
"is highly probable that a supply of sixteen gallons a day to
each inhabitant, more than equal to the average of the four
largest quantities delivered in the above named cities, will be suffi-
cient for the inhabitants for the next ten years." Upon a review
of the whole matter they state in conclusion that for two reasons
" a considerable saving of expenditure at least for a number of
years, if not permanently, and the placing of the work on the
ground of the greatest attainable certainty, the majority of the
commissioners feel bound to adhere to the opinion expressed in
their former report, in favor of adopting the system of works
relying upon Spot and Mystic Ponds as the sources of supply."
Mr. Baldwin dissented from this opinion as he did from that
of his associates in their original report.
Let me ask the attention of the committee to a brief consider-
ation of the evidence furnished by these reports, in regard to
the purity and quantity of the water to be obtained by the
modes of supply which I have suggested.
Spot Pond. The water from this source is fully shown by
the concurrent testimony of all the commissioners, as well as
by the results of chemical analysis, to be superior to every
other, on account of its transparency, freedom from color, and
the absence to an unusual degree of foreign matter.
Mystic Pond. The commissioners in their report of 1837,
p. 14, say, " The water of this Pond is somewhat less trans-
parent and more colored than that of Spot or Long Ponds —
while the chemical analysis shows it to contain a very minute
portion of foreign matter, being more pure than Long Pond.,
and less pure than Spot Pond. It may be taken therefore as of
sufficiently good quality for all the purposes of life." Messrs.
Treadwell and Hale, p. 62 of report of 1837, in their reply to
the objections of Mr. Baldwin, say, " we need not repeat that
the analysis shows the water (of Mystic Pond) to be more pure
than that of Long Pond, which receives in the dry season the
drainage from an extensive swamp or meadow."
Mr. Eddy, in his report of 1836, p. 16, giving the result
of an analysis by Dr. Jackson, and comparing it with the Croton
water of New York, says, "In the same quantities of Mystic
Pond and Croton River, the former contains hut one half the
foreign matter of the latter.
Charles River. Dr. Jackson, giving the results of his ex-
amination in 1834, (which is appended to Col. Loammi Baldwin's
Report,) of what he supposed to be nine specimens of Lake
Water, the sources being unknown to him, thus speaks of the
specimen, which proved to be Charles River water. " It is clear,
transparent and colorless, has a few flocciili — no animalculi.
Specific gravity, 1.0005. 5000 grs. evaporated to dryness, leave
0.1 gr. vegetable matter." He says the water of eight of the
nine specimens is sufficiently pure for the ordinary uses of
life, and speaking of the specimens from Charles River and four
otiier sources, says, "They are preferable and nearlj?" pure, the
quantity of vegetable matter contained, being extremely minute,
sensible only to delicate tests."
Mr. Hayes in his statement appended to the report of the
commissioners of 1837 — giving the results of his analysis of six
specimens of water, submitted to him for examination by Mr.
Baldwin, — says of Charles River water, " It is nearly colorless,
has no perceptible odor, is more brisk and sparkling than either of
the specimens — 3.32 lbs. result from the evaporation of 100,000
lbs. at 212° F. this weight is reduced by heating to 1.80 lbs."
Spot Pond. Mr. Treadwell, in his report having estimated
that the amount of supply needed would be 1,600,000 gallons
daily — comes to the conclusion, p. 10, " That a sufficierit sup-
ply of water for the city may be brought from Spot Pond in
common and even in dry seasons." His object seems to have
been not to ascertain the maximum capacity of the pond, but
only to satisfy himself that the needed supply could be ob-
tained from this source.
Mr. Eddy, in his report in 1836, pp. 9, 10, reviewing the
estimate of Mr. Treadwell and giving the results of his own
examination and inquiries, calculates that the daily supply from
the pond would be 2,718,531 gallons. By the erection of
a dam as proposed by him, he thinks 60 acres may be added to
the pond, and the supply be thereby increased 429,633 gallons
per day, which with the quantity already named equals
3,148,164 gallons — and he comes to the following conclusion,
"Therefore I shall feel safe in estimating this pond capable of
supplying on the average from 2,500,000 to 3,000,000 gallons
The commissioners of 1837, took what they considered the
most effectual measures, by a series of observations, to ascertain
the capacity of this pond. A full account of their observations
and mode of estimating the supply is appended to their leport
— in regard to the results of which they say, " By this it will
be seen that we are of opinion that Spot Pond may be relied
upon to furnish an average of 2,100,000 gallons a day— that
the discharge may be taken as never falling below 1,600,000
gallons, — and may never be expected to exceed 2,600,000
gallons a day."
In the report of a majority of the commissioners made in
1838, in which they revise their former estimates, having con-
tinued their observations on Spot Pond with the apparatus de-
scribed in their former report, and fearing that their estimate of
the former year was too large, they come to this conclusion, p. 7,
"A majority of the commissioners confidently infer that Spot
Pond may be relied upon for an average supply of 1,700,000
gallons a day."
Some attempt has been made at the present hearing to raise
a doubt in the minds of the committee, whether reliance can be
placed upon the result of the observations and examinations of
the various commissioners who have been appointed by the city
to investigate this question, and who have devoted much time
to the subject ; the commissioners of 1837 having given their
estimate as the result of a series of careful observations, guaging
the daily discharge of the pond, and comparing the results of
frequent examinations during the period of a whole year.
The late Mayor Mr. Brimmer, and Mr. George Darracot have
been called, to give the result of a visit made by them to the
pond in September last, and from the observations made by
them at that time, and the information communicated to them
by one individual, they came to the conclusion from the low
state of the water, that the pond could not be relied upon as a
source of supply for the city, although their informant told
them that the water had been allowed to run to waste during
the season, a fact abundantly established by other evidence
before the committee.
If such evidence, however respectable may be the witnesses,
is to outweigh the deliberate opinion of commissioners selected
as men peculiarly qualified to judge, who have devoted months
to the investigation of the subject, then certainly the City
Council have greatly erred in employing scientific men at no
small expense to make such investigations. They might much
better have appointed a viewing committee of their own body,
to take a ride to Stoneham, some pleasant summer's day, and
then decide the question of the capacity of Spot Pond, upon
their report of what they had seen and heard.
Mystic Po7id. Of the ample capacity of this pond to furnish
an adequate supply, there seems to be no question.
Mr. Eddy in his report, p. 9, estimates the supply from this
source as " equivalent to 12,960,000 gallons per day," and says
there " can be no question as to the ability of Mystic Pond to
supply any quantity our city may ever require."
The majority of the commissioners of 1837, in their supple-
mental report in 1838, say, " We have not thought it necessary
to guage the flow of water from Mystic Pond. We have, how-
ever, examined it during the season, and have no doubt that
the supply will be ample for a population vastly greater than
that of Boston, and much greater than that which can be de-
rived from Long Pond."
In the report of 1837, and from this part Mr. Baldwin does
not dissent, the commissioners say, " We have examined the
outlet at various times during the summer, and have found the
flow from it constant and abundant when not interrupted by
the rise of Mystic river, which at spring tides flows back into
the Pond. This would require to be cut off" by a dam thrown
across the outlet of the pond. Were means adopted for saving
the water which flows into the Mystic, we have reason to be-
lieve that a sufiicient supply for the present century may be
obtained from it."
Charles River. Mr. Treadwell in his report, p. 5, says,
" The water of Charles River is at all times abundant for the
supply of the city."
The commissioners of 1837, say, " For the quantity of water
furnished by this river, it may be considered as abundant for
the supply of the city, for more than the present century, as it
seems to be well ascertained that the flow by the Wallham
Mills, is equal to forty cubic feet a second constantly in the
So far then as regards the quantity of water, there can be no
doubt, on the evidence, that Mystic Pond or Charles River,
either of them alone would afford more than an adequate supply.
As in one of the plans which I have indicated, it is proposed to
combine the resources of Spot and Mystic Ponds, even if there
were doubt as to the amount of supply to be obtained from
Spot Pond, it could only affect the question, how soon we must
resort to Mystic Pond as an auxiliary.
Having thus considered the evidence showing the quality
and quantity of the water to be derived from the sources to
which I have referred as preferable to that, on which alone it
is proposed by the petitioners that the city of Boston shall rely,
I now proceed to consider the evidence before the committee,
to establish the position that a resort to these sources is entitled
to preference over the Long Pond project on the score of
economy. In discussing this question, I propose to consider
only the expense of bringing the water into the city, as the cost
of distribution by either of the proposed modes, will be sub-
stantially the same.
Expense of procuking a supply fron Spot Pond and Mystic
Mr. Eddy's Plan.
He proposes to bring the water of Spot Pond by iron pipes to a re-
servoir to be constructed on Bunker Hill at sufficient altitude to sup-
ply the most elevated parts of the city.
The cost of this work, to supply 1,700,000 gallons per
day, he estimates at $388,747 76
The water of I\Iystic Pond to be brought by a brick
conduit to Bunker Hill, and there pumped by steam
power into a reservoir at a less altitude, to supply the
lower levels of the city — estimated expense, . . 218,130 00
Cost of two steam engines and appurtenances, and amt.
of capital at .5 per cent, to defray expense of pumping
2,500,000 gallons per day, as by estimate of Commis-
sioners of 1837, 306,160 00
Total cost of supply of over 4,000,000 gallons per day, $913,037 76
To bring the water from Long Pond, according to the
Report of the Commissioners of 1844, will cost . 1,374,442 13
Difference, . . . . $461,404 37
I have made no deductions from the estimate of Mr. Eddy
for the reduction in the prices of iron and lead, nor from ex-
pense of fuel as estimated by the commissioners in 1837, though
the price of fuel has diminished, and the duty which steam
engines can be made to perform, as appears by a recent work
of Mr. Wickstead on the Cornish engine, is now more than fifty
per cent, greater than was estimated by the commissioners.
Plan of the majority of the Commissioners o/"1837.
They recommended Spot and Mystic Ponds as the sources of supply,
but proposed a route varying from that of Mr. Eddy. They consid-
ered that only one steam engine would be needed at present to pump
the waters of Mystic Pond, and estimate the whole expense at
To which add capital, to produce, at 5 per cent., $2,800
per annum, estimated to be the annual expense of
pumping, . 57,800 00
Total cost, 772,733 00
Expense of Long Pond project, ..... 1,374,442 13
Difference, .... $601,709 13
Mayor Eliot's Plan.
This plan, and the facts and reasoning by which it is sustained, are
set forth in a Report made by Mr. Eliot as Chairman of the Committee
of Water, in September, 1839, City Doc. No. 25.
As the report will be in the hands of committee, 1 will not weary
them by recapitulating the facts and reasoning which it so ably pre-
sents, and which strongly establish the conclusions of the committee,
" that 14 gallons a day to each individual would be a sufficient and
liberal allowance, animals, steam engines and contingencies included,
according to the habits of the place ;" that Spot and Jamaica Ponds
combined might be relied upon to furnish a supply, " which would be
enough for the probable wants of the probable population for many
years to come, with a surplus of 820,000 gallons a day, to make up
for any errors in the calculations of the committee ;" that a work to
bring the waters of Spot Pond to the city, " sufficient for all practica-
ble purposes, could be constructed for a sum not exceeding $550,000,
or at the outside, $575,000 ; and that the two ponds, with the pipes
all laid as far as the city, and one of them actually distributing water,
would cost $650,000."
A resolve accompanying the report, instructing the Mayor to apply
to the Legislature for leave to introduce the water of Spot Pond, was
passed in the Common Council, as testified by Mr. Chapman by a
majority of one vote, but afterwards reconsidered.
Charles River Plan.
An able discussion of the advantages of this plan, by John H.
Wilkins, Esq., for several years a member of the Common Council,
has been published and extensively circulated. I will merely give
the result of his computations of expense, prepared with much care
from data contained in the Report of the Commissioners of 1837 in
their estimate of the expense of introducing water from this source.
In Mr. Wilkins's estimate he provides for the delivery of the water
at Corey's Hill, the place selected for a reservoir by the Commissioners
of 1837 and 1844, and he also includes the cost of two engines for
pumping, and a capital, the interest of which at five per cent , shall
defray the annual expense of working and repairing one engine, each
engine being capable of delivering three millions of gallons daily.
The total amount, making the proper abatements for reduction in
the price of materials, and adding 12 per cent, for contingencies, is,
The cost of Long Pond water delivered at the same
point, as estimated by the Commissioners, is, . 906,949 00
Difference $435,921 00
Bat the great objection which will be raised to either of the
plans proposed will probably be, that the amount of supply
which they will furnish, is far less than that contemplated in
the Long Pond project.
The facts and considerations which have already been pre-
sented to the committee, in regard to the amount of supply
actually needed, and which are stated in detail in the luminous
report made by Mr. Eliot in 1S39, it seems to me furnish a
sufficient answer to this objection.
The experience of Philadelphia and of New York amply
shows, that upon the first introduction of water by an aque-
duct, the number of water takers is comparatively small, and
that the increase is gradual. And unless the proportion in Bos-
ton shall greatly exceed what the experience of other cities
v/ould lead us to anticipate, the supply by either of the modes
which I have indicated, would be amply sufficient to meet the
demand for many years to come. And as the demand in-
creases, the works can be extended to provide the additional
supply which may become necessary.
Each of the plans indicated has two important features,
■which entitle it to a decided preference over the Long Pond
First. The greatest distance in either plan from the source
of supply to the reservoir, is only about half that from Long
Pond to the proposed reservoir.
Second. In each of the proposed plans it is contemplated to
substitute iron pipes in the place of a brick conduit.
Whatever mode of construction is adopted, it is obvious that
the liability to accident and the expense of repairs, will be di-
minished in the same ratio with the distance.
And as to the advantages of iron pipes, the evidence con-
clusively shows that when it is practicable to use them, they
are greatly to be preferred to a brick conduit. There is much
evidence on this point in the appendix to the Report of 1837,
and in the supplemental Report of a majority of the commis-
sioners in IS38. City Doc. 1838, No. 33, p. 16, they say^
" We believe, if any thing can be rehed upon for carrying
water from one point to another, it is an iron pipe. Experience
for more than half a century in Eiu'ope, and for many years in
this country, attests its excellence. We may therefore consider
it as perfectly safe.''''
But the reasons in favor of either of the proposed modes
are entitled to additional weight when contrasted with the ob-
jections which exist to the Long Pond project. I therefore
ask the attention of the committee to a consideration of some
of these objections.
Objections to the Long Pond Project.
Expense. This point has already been partially consider-
ed, in comparing the cost of the other plans with the cost of
this, as estimated by the commissioners of 1844. But there is
great reason to fear that this estimate will by no means cover
the expense, should the work be undertaken. The history of
the Croton Aqueduct furnishes an instructive lesson on this sub-
ject. That also is a work of masonry. " The cost of the work
as estimated by the Water Commissioners, including the cost of
the city mains and conduits, was |5,412,336 72." " The
whole cost of the work, exclusive of the pipes in the city below
the distributing reservoir is about $9,000,000. Adding to this
the cost of the pipes and arrangements for distributing the
water in the city, loill make the, total cost of supplying the city
of JVew York with loater, about $12,000,000." See Tower's
Illustrations of the Croton Aqueduct, pp. 67 and 121. In one
important item, viz, land damages and water rights, the New
York commissioners erred very widely in their estimates, but
probably not more so than have our commissioners of 1844, if
they did as much. This item of damages for water rights is put
down at $100,000, by our commissioners; but Mr. Jackson,
one of their number, who has probably had as much experi-
ence in settling such claims as any man in the Commonwealth,
in his testimony before the committee, stated that he would not
guaranty to pay them for half a million of dollars. For what
sum he would undertake to guaranty their payment he did not
«tate. If the city should have occasion to settle the claims of
Mr. Knight for destruction of his mill privilege — of the propri-
etors of the mills on Sudbury River, if its waters are taken
as proposed in the petition — of the Middlesex Canal — of the
mill owners at Billerica — of Mr. Whipple on the Coucord River
at Lowell — of the proprietors of mills at Massasoit Fails — and
at Belvidere village on the same river — they will probably find
Mr. Jackson's individual opinion as to the extent of their liabil-
ities, to approximate much nearer the actual result than the
Report of the commissioners.
But on this point we are met with some rather startling pro-
positions, advanced by the counsel for the petitioners. It has
been said, " If it be a reckless expenditure, the Legislature have
nothing to do with it." " The treasury of Boston is to pay the
expense." It may be that the members of the Legislature,
personally, have nothing to do with it ; but the remonstrants in
this case, who as citizens of Boston, must suffer if the city is
rashly involved in a reckless expenditure of money, have some-
thing to do with this matter. We have a right to ask, and we
do respectfully claim the protection of the Legislature ; and if
we are a minority, we pray that the majority, who by their
counsel advance such principles, may not be invested with an
arbitrary power of taxation over us.
Mode of Construction. It is somewhat remarkable that the
commissioners should recommend the construction of an aque-
duct of a form which has never yet been adopted for such a
purpose — a structure of brick, of an oval form, five feet in width,
and six feet four inches in height, and broader in the lower
section than the upper, the brick work to be only eight inches
in thickness, the whole to be laid through cuttings of earth or
rock as the case may be, and over several large embankments,
with no provision for any foundations of masonry to support it,
not even a bed of concrete to be laid beneath the structure on
the natural or artificial level over which it passes.
The commissioners may well say, when comparing their pro-
posed plan of structure, with that adopted for the Croton Aque-
duct, "The works proposed, for bringing the water of Long
Pond to this city, will require no construction bearing any com-
parison for magnitude or cost with those of the Croton Aqueduct,"
and the opinion is very extensively entertained, that they might
with equal propriety have added, that they will bear no compari-
son for safety^ 'permanency or durability. The question naturally
suggests itself, Is there no mode of structure to be found among
the numerous aqueducts in Europe and in this country, that
have stood the test of experience, which the commissioners
deemed it safe to recommend for the aqueduct from Long
Porijd ? It will be recollected that Mr. Hale, one of the com-
missioners, testified that he had never seen or known of an
aqueduct constructed on the plan proposed. It certainly forms
a striking contrast to the Croton Aqueduct, which is laid on a
bed of concrete, the sides of the lower section being protected
and sustained by walls of stone masonry some two feet thick.
Did not the character of the commissioners preclude such
a suspicion, it would be difficult to resist the impression, that
one prominent object was to prepare as low an estimate as pos-
sible, to induce the city to embark in the undertaking, with the
expectation that the work, when once commenced, must be car-
ried on and completed in a thorough manner, at whatever cost.
There is another remarkable feature of the plan proposed by
the commissioners, well calculated to excite doubt whether suf-
ficient care and skill have been exercised in its adoption. It is
proposed to construct a reservoir containing only 7,000,000 gal-
lons — one day's supply — with three reservoirs in the city of small-
er dimensions, the capacity of which is not given, and a fourth
if a suitable site can be obtained. It is not to be presumed that
their united capacities will exceed that of the reservoir on Co-
It will hardly be claimed for the proposed Aqueduct, that it
will be more secure or less likely to need examination and re-
pairs than the Croton Aqueduct, yet it has already been found
necessary to draw off the water from that aqueduct, and the res-
ervoirs in the city of New York received no supply from the
Croton River for twelve days. What would be the condition of
the city of Boston, if for the purpose of repairs of the proposed
aqueduct, or for any other cause the supply from Long Pond
should be discontinued for a like period of time ?
If, as anticipated by the commissioners, the whole population
of Boston should become water-takers — and as a probable con-
sequence give up the use of their wells and cisterns, and neg-
lect to keep them in repair — upon the happening of such a con-
tingency, we should witness scenes of suffering and distress for
want of water far surpassing any known in the present, or re-
corded in the past history of our city.
But there are objections of a more general character, aside
from those affecting merely the citizens of Boston, which can-
not fail to receive the consideration of the committee. I refer
to those damages termed indirect and consequential which .will
ensue to the town of Framingham and the inhabitants of Bil-
lerica and Medford, who have remonstrated against the granting
the prayer of the petitioners, and also the injury and loss which
will ensue to the public, if by reason of the diversion of the
waters of Long Pond, the Middlesex Canal should be rendered
It has been assumed by the counsel for the petitioners, that
because, by the rules of law, compensation cannot be provided
for indirect and consequential damages, they should not be re-
garded by the committee.
But T contend that this fact presents a strong reason why they
should be considered, and the right of eminent domain should
not be exercised where such consequences ensue, if the exigen-
cy can be otherwise provided for.
The present case is not analagous to the granting of rail-
roads, whereby travel is diverted from pre-existing turnpikes, and
as a consequence towns and villages which formerly were great
thoroughfares or centres of business cease to be such.
In those cases the damage is w fad as well as technically in-
direct and consequential, caused not by a direct taking of pro-
perty or privileges from the corporations damnified and giving
them to others. But in the present case the damages to be suf-
fered will be caused by a direct act of taking from these towns
that which is now the source of their prosperity, diverting the
waters of their ponds and streams and bestowing them on the
City of Boston.
The public it may be contended will suffer no serious incon-
venience or injury from the discontinuation of the Middlesex
Canal, as it will perhaps be said that the freight formerly trans-
ported on it is now more beneficially transported on the rail-roads.
The facts set forth in the remonstrances of the inhabitants of
Billerica and Medford as well as the testimony of Mr. Eddy, the
agent of the Canal, show that such is not the case. And al-
though the amount of transportation is now greatly diminished.
yet the continuance of the Canal serves to regulate the charges
for freight on the rail-roads, which would doubtless be at once
not a little advanced if the competition of the Canal should cease.
And although the proprietors may not object to its discontinu-
ance, if they are paid its value by the city, the public have an
interest in its continuance, which it is the duty of the Legisla-
ture to protect.
I contend that this question of consequential damages to towns
and to the public is one which ought not to be lightly regarded
by the committee, or by the Legislature, in coming to a decis-
ion upon the application of the petitioners ; and that justice de-
mands, before the authority sought is granted, that the petition-
ers should fully and clearly prove,
A case of extreme exigency.
That this exigency can be provided for in no other way, and,
That the exigency to be met is so great as plainly and palpa-
bly to outweigh all the indirect and consequential damages
which will be caused to others.
But the ground taken by the counsel for the petitioners, seems
to assume, that all these considerations are but the small dust of
the balance, when weighed against the vote and the declared
wishes, of the City Council and of the citizens of Boston.
As to the necessity of the proposed measure it has been said —
" The mere statement of the fact by the people themselves, is
under the circumstances proof of the fact." " Seven thousand
men have said they want water, and are willing to pay for it."
The votes of the citizens say nothing about necessity, nor
that they will take the water and pay for it, but only that they
are in favor of having it brought for the use of those who choose
to pay for it.'^
* The following are the four propositions submitted to the citizens upon which
their ballots were given.
First proposition. — Are you in favor of procuring a supply of Water for the Inhab-
itants of the City of Boston, to be brought, at the expense of the City, from Long
Pond in Natick and Framingham, or from any of the sources adjacent thereto, on
the condition that those of the Inhabitants who may elect to take and use the same,
shall be required to pay for the water such reasonable tax as shall hereafter be
fized and established by a Board of Water Commissioners that shall be created ?
Second proposition. — Do you hereby vote to instruct the City Council to apply
to the Legislature, in behalf of the City, for the grant of a suitable charter to carry
into eflfect the object expressed in the first proposition ? And do you hereby vote
to instruct the Senators and Representatives elect, of the City of Boston, to exert
their influence at the ensuing session of the Legislature, to obtain a just and liberal
charter for the object as above set forth ?
Third proposition. — Are you in favor of procuring a supply of Water for the
Then as to the mode of construction it has been said, " who
can gainsay the right of the city to judge — if the object is ne-
cessary, those who seek to obtain it, may obtain it in their own
way, if at their own expense."
If it were to be at the expense of those seeking, I grant the
soundness of the proposition. But the seekers in this case are
seeking to execute this work not at their own expense solely,
but to charge the remonstrants also with a portion of it.
I have already endeavored to establish the position that in this
case, the votes of the citizens of Boston and of a majority of
the city council have no binding effect upon the minority. If
this position is established the proposition assumed on behalf of
the petitioners falls to the ground, and these votes are to be re-
garded only as the expression of an opinion by the individuals
who voted in favor of the measure ; and the weight to be given
to these opinions depends upon the character of the individuals
— their capacity to judge on the subject-matter — their means of
information — and the evidence that their decision was formed
after due investigation and deliberation.
But I deny that the City Council have expressed any delibe-
rate opinion in favor of the proposed measure, and I contend
that the fact is otherwise.
Mr. Hubbard, here read extracts from the records of the may-
or and aldermen and of the common council, and also from the
record of the doings of the citizens in general meeting assem-
bled, and then resumed —
It appears from these extracts that the first action on the sub-
ject in the year 1844, was on the 22d of July, when a joint com-
mittee was appointed " to consider and report what measures if
any should be adopted to procure an abundant supply of pure
soft water for the use of the city," and in the latter part of the
Inhabitants of the City of Boston, to be brought, at the expense of the City, from
any sources which may hereafter be decided by the City Council to be the best, on
condition that those of the Inhabitants who may elect to take and use the same,
shall be required to pay for the water such reasonable tax as shall hereafter be
fixed and established by a Board of Water Commissioners that shall be created ?
Fourth proposition. — Do you hereby vote to advise the City Council to apply to
the Legislature in behalf of the City, for the grant of a suitable charter to carry into
effect the object expressed in the third proposition ? and do you hereby vote to
instruct the Senators and Representatives elect, of the City of Boston, to exert their
influence at the ensuing session of the Legislature, to obtain a just and liberal char-
ter for the object as above set forth ?
month the Common Council adjourned over the dog-days to
meet again on the 12th of September.
On the 29th of July the petition of Walter Channing and
others was presented requesting that a meeting of the citizens
might be called in Faneuil Hall " for the object of elaborate
discussion ; to the end of fixing and ascertaining the state of
public sentiment on the subject of obtaining a supply of pure
water from Long Pond in Framingham, for the use of the city,"
which petition was referred to a committee, who on the 26th of
August reported favorably, and it was ordered that a warrant is--
sue for a meeting to be held on the 3rd of September.
On the 22d of August a special meeting of the Common
Council was called by the Mayor, at which a report was present-
ed by the committee appointed a month previous, and orders
were passed authorizing the committee to appoint three commis-
sioners to report on the best mode and the expense of bringing
water from Long Pond.
On the 26th of August, these orders were concurred in by the
Mayor and Aldermen, but on the 2nd of September, this Board
passed the following important explanatory Resolve,
Resolved, That this Board, in concurring, at the last meeting, with
the Common Council in the passage of certain orders, directing the
Committee " on the introduction of pure soft water" to appoint three
commissioners, to report on the best mode and expense of bringing
the water of Long Pond into the city, did not intend to express
any opinion as to the expediency of supplying the city with water from
that source, nor to preclude examination of other ponds hereafter; but
only to declare their consent and wish that Long Pond, as one of the
prominent sources of supply, should, at this time, be thoroughly ex-
amined, and the cost of bringing its water into the city carefully esti-
mated by responsible and competent persons, in order that the City
Government may have all the facts before them in relation to it, for
their future judgment upon the whole subject matter.
On the 14th of November, the Committee made a report to the
Common Council, commimicating the Report and Estimates
of the commissioners appointed by them — and recommended
the adoption of certain resolves.
On the 21st of November, the Common Council proceeded to
the consideration of the report of the committee, and the first
resolve recommended by them was adopted, as follows,
, Resolved, That it is expedient for the City to begin and complete
the necessary works for the introduction of a supply of pure water.
At the same meeting an order was passed for printing and
circulating among the citizens, 7,000 copies of the report of the
commissioners of 1844, an attempt made to amend by adding
" also the commissioners' reports of 1836 and 1837," failed ;
the order was however amended in the Board of Aldermen on
the 25th of November, by providing also for the printing and
circulation of the report of the commissioners of 1837, in which
amendment the Common Council concurred on the 26th of
The report of 1844, was printed and circulated before the
citizens voted on the propositions submitted to them, but the
REPORT OF 1837 WAS NOT CIKCULATED UNTIL AFTEK THE VOTE
HAD BEEN TAKEN.
On the 26th of November, the Common Council resumed the
consideration of the resolves, reported by the committee on the
14th of November.
The second resolve was as follows,
Resolved, That it is expedient to draw the supply from Long Pond,
in the manner recommended by the Commissioners appointed under
the order of August 26, 1844.
The following amendment was inserted in lieu thereof,
Resolved, That it is expedient that the following question be sub-
mitted to the legal voters on the 2d Monday of December next, the
citizens to vote in their respective wards, yea or nay, viz.
" Are you in favor of procuring a supply of water for the city, to be
brought and distributed at the expense of the city from Long Pond,
or such other sources as may hereafter be decided to be best — upon
such terms and under such regulations as the City Council may di-
The question on the adoption of the resolve as amended was
taken by yeas and nays, and passed by 40 yeas to 4 nays.
All the remaining resolves were indefinitely postponed.
On the same evening at the meeting of citizens in Faneuil
Hall, adjourned to this time, the first two of the four propo-
sitions on which the people subsequently voted, (see ante, p. 43,)
were adopted, to be submitted to the people at the approaching
municipal election, and on motion of Mr. Williams, it was
Voted, That in order to foster and promote the water project — a
Committee of twelve be chosen by this meeting from the citizens at
large, who shall have the general charge and direction of such meas-
ures as it may be expedient to take, and whose duty it shall be especi-
ally to co-operate with any committee or officers of the City Council,
who may be deputed by that body to urge the grant by the Legislature,
of a suitable charter for the accomplishment of the object in con-
Voted, That the Committee be nominated by the Chair, and Edward
Brooks, Thomas B. Curtis, George Darracott, Nathaniel Greene,
Charles Leighton, Wm. Stearns, George Savage, Thomas J. Lobdell,
Charles A. Wells, Robert Cowden, Henry Williams, Wm. T. Eustis —
On the 27th of November, the Mayor and Aldermen ordered
a notice to be issued, calling on the citizens at the approaching
municipal election to give in their ballots on the last two of the
four propositions on which the vote was finally taken, (see ante
On the 3d of December, at the final meeting of the citizens
at Faneuil Hall, the following votes were passed.
Voted, That a committee be chosen to wait on the Mayor and
Aldermen, and respectfully request them to issue a notice to the citi-
zens to be voted upon at the meeting on Monday next, in accordance
with the resolutions adopted at the meeting of the citizens on Tues-
day, the 26th ult.
The following gentlemen were chosen on said committee. Edward
Brooks, George Darracott, William T. Eustis, Charles Leighton,
James Clark and Charles A. Wells.
Voted, That the Water Committee chosen at the last meeting of the
inhabitants, November 26th, be instructed to prepare and cause to be
printed thousand copies of the two propositions adopted at said
meeting, to be distributed at the polls on Monday next, to afford the
voters of the city an opportunity of voting yea or nay upon them, to
the end that the voice of the people may be fairly ascertained upon
them agreeably to the fair and reasonable intent of the meeting which
Voted, That the Water Committee, as set forth in the first vote, be
instructed to petition the Legislature on behalf of the citizens for a
charter, &,c., with or without the co-operation of the City Council.
The foregoing votes were adopted in the event that the Mayor and
Aldermen shall not issue their warrants for ward meetings to vote on
Monday next upon the propositions adopted on the 26th.
The committee waited upon the Mayor and Aldermen pur-
suant to their instructions, and on the fifth of December, the
Mayor and Aldermen yielding to the dictation of the Faneuil
Hall meeting, and surrendering their own judgment, as to the
proper form in which the questions should be submitted to the
people, passed an order, that notice should be issued to the citi-
zens to give in their ballots at the municipal election on the 9th
of December on the four propositions on which they finally
On the 12th of December the Mayor communicated to the
Common Council the result of the vote of the citizens, and on
the 19th of December, the committee on water made a farther
report recommending the adoption of the following resolve and
Resolved, That it is expedient to procure a supply of water for the
inhabitants of the City of Boston, to be brought, at the expense of the
City, from Long Pond in Natick or Fraraingham, or from any of the
sources adjacent thereto, on the condition that those of the inhabitants
who may elect to take and use the same, shall be required to pay for
the water such reasonable tax as shall hereafter be fixed and established
by a Board of Water Commissioners that shall be appointed by the
Ordered, That the Mayor be instructed to make immediate applica-
tion to the Legislature for the grant of such powers to the City, as may
be necessary to carry the foregoing resolve into effect.
The resolve and order were passed in the Common Council,
and on the 23d of December, the iVlayor and Aldermen concur-
red by a vote of 6 yeas to 3 nays.
So far as relates to the Common Council, I ask — on this re-
view of their action on the subject — is not the fact plainly ap-
parent, that the Resolve finally passed by them in favor of the
Long Pond project, is no indication that the judgment of the
individual members of that body, approved the measure.
On the 26th of November they refuse to pass the Resolve
reported by the committee, '^ that it is expedient to draw the
supply from Long Pond," and in lieu of it, by a vote of 40 to
4, adopt a resolve that it is expedient to submit to the citizens
the question, whether they are in favor of procuring a supply
" from Long Pond or such other sources as may hereafter be
decided to be best." On the 19th of December, only twenty-
three days afterward, they decide '' that it is expedient to pro-
cure a supply from Long Pond or any of the sources adjacent
What new light had beamed npon the Common Council
during this brief interval. It is palpably manifest that in
adopting the last Resolution, they did not act upon the convic-
tions of their own judgment, but were carried away by the im-
pulse of the popular excitement.
In regard to the Mayor and Aldermen — that they yielded to
the same influence, is still more apparent. When they con-
curred in the order of the Common Council to authorize the
appointment of commissioners to estimate the expense of bring-
ing water from Long Pond, they deemed it necessary to enter
a protest, lest any conclusion might be drawn from their action,
that they were in favor of the Long Pond project.
But they also surrendered their own convictions in regard to
the wisdom of the proposed measure, to the popular impulse.
That they did so is not left to mere inference. Three of the
six aldermen who voted in favor of the Resolution " that it is
expedient to procure a supply of water from Long Pond," have
testified before the committee.
Alderman Preston testified, that he did not consider that so
much water was needed, as the report of the commissioners
proposes to introduce, that he thought further investigation ne-
cessary before deciding upon the source — and that he voted in
the affirmative on the final question, because as a matter of
courtesy, he did not think it proper to stand in the way of an
application to the Legislature.
Alderman Crane testified that at the polls he voted against
the Long Pond project. In the Board of Aldermen he voted in
favor of petitioning, because the popular vote was so large, and
therefore thought it right that the petition should be presented.
That he has ever since repented of his vote in the Board, and
subsequently moved a reconsideration.
Alderman Rogers testified that he was not in favor of the
Long Pond project ; that he thought further examination ne-
cessary ; that he voted for it under the circumstances in which
the city government was then placed, that the next city coun-
cil might be free to act as they should think fit.
Upon this state of facts, I repeat the assertion, that the action
of the City Council affords no evidence that a majority of the
members of either board entertained the opinion that the pro-
posed measure is either wise, proper, or necessary. They
merely consented, as being the proper organs by which an
application should be made to the Legislature, to become the
channel of communication by which the wishes of thoge who
voted at the polls in favor of the measure should be made
So far then as any evidence in support of the proposed meas-
ure, is to be derived from any expression of opinion in its favor
in the city of Boston, it must depend wholly upon the vote of
the citizens. And I ask the committee to consider, what
weight can be given to this vote under the circumstances.
Are the questions — whether the proposed plan is a wise one
— whether an adequate supply cannot be more advantageously
and economically obtained from other sources — proper questions
to be decided by a popular vote ? As a reason why the com-
mittee should not go into an investigation of these questions, it
has been said " that they could not settle them without an in-
What light have the citizens of Boston had to aid them in
this inquiry upon which it would be so difficult for the commit-
tee to come to a decision. The only official document recently
published and circulated was that of the commissioners of 1844,
who were not called upon to make investigations in regard to
any other other sources of supply, than Long Pond, and who in
their report expressed no opinion of the merits of Long Pond as
compared with other sources.
Four of the commissioners had been previously appointed,
for the express purpose of examining the various sources of sup-
ply, and the reports of two of these commissions had been
printed and circulated. The commission of 1837 consisted of
three individuals, a majority of whom expressed a decided opin-
ion in favor of Spot and Mystic Ponds, which opinion they ad-
hered to with confidence when called upon by the city council
to revise their opinions in the following year and only one of
the individuals who has ever been a member of either of the
commissions, has officially expressed an opinion in favor of re-
sorting to Long Pond as the sole source of supply.
Had the former reports which some members of the common
council wished to have placed in the hands of their fellow citi-
zens, or had the report of 1837, which the city council ordered
to be printed and circulated, been in their hands, before they
acted on the question, the result might have been diiferent.
But it has been suggested that this report had been circulated in
former years, and that the vote of the citizens, was given upon
a full knowledge of all the facts and arguments in the case. It
is hardly to be presumed that one in five of the voters had in
his possession a copy of the report of 1.837 or perhaps knew
that such a report had been made. It has appeared in evidence,
that when the order was passed to have that report reprinted, it
was with some difficulty that a member of the water commit-
tee could find a copy of the old edition to be placed in the hands
of the printer, and finally procured a copy from a gentleman
not a member of the committee. If members of the water com-
mittee were so poorly furnished with the means of knowing
what had been done in past years, is it probable, that the citi-
zens at large were better provided ? Seven years had elapsed
since the publication of the report of '37 ; during that period many
new voters had come into the city, many young men, too young
at that time to judge and decide on the subject, had acquired
the rights of voters ; during the preceding four years there had
been no action by the citizens or by the city government on the
subject. What then were the means possessed by the great
body of the voters in the year 1844, and whence derived ? It is
obvious that full means of information could not have been pos-
sessed. Mr. Jackson, one of the commissioners of 1844, testi-
fied, that with all the information which has been spread before
the public, he should not feel safe in deciding without further
investigation to what source of supply it would be expedient to
resort. And it is no disparagement to his fellow citizens to say,
that he is at least as fully competent as a great majority of their
number to form an opinion on this subject, if not more so.
The learned counsel for the petitioners states that there has
been great diversity of opinion on the subject, and that the
want of concentration of the public mind had been the cause of
Such has doubless been the case, and it is equally true that
during the past year there has been no additional light thrown
upon the subject, to enable the citizens to decide with intelli-
gence on the question. True, some of our public prints have
teemed with articles from the pens of the friends of the Long
Pond project in favor of that measure, many of them containing
highly colored and exaggerated statements of the wants of the
city, and it was under the influence of such one-sided represen-
tations that many of the voters came to the polls, the official
documents being withheld from them, which the City Council
had ordered should be placed in their hands.
But even with all the efforts which had been made to bias
the public mind, the friends and guardians of the Long Pond
Project, did not deem it safe to leave the decision of the ques-
tion to the unaided intelligence and understanding of the people,
when they were summoned to the polls to vote on the four
propositions submitted to them by the Mayor and Aldermen —
and the Faneuil Hall Committee of twelve, having "the gen-
eral charge and direction of such measures as it may be expedi-
ent to take," deemed it necessary to publish instructions to the
people, directing them how to vote.*
I contend the course of action, during the past year, both of
the citizens and of the city government is characterized by a
hot haste and a want of due deliberation and thorough investi-
gation, and affords no sufficient evidence that the public neces-
sity or interests require that authority should be granted to
carry the proposed plan into execution.
It has been suggested that the committee may think it proper
* The following is a copy of the Instructions published by the Committee of
TWELVE, in the newspapers of the day.
To ill! true friends of the icater project.
Fellow Citizens — You have spread before you the two propositions, which, after
a discussion of several months in legal City Meetings, of the subject of " Procuring
a supply of Water for Boston," were adopted, to be voted upon at our approaching
Municipal Election, with a view to ascertain, as far as practicable, the popular sen-
timent upon the subject — and, if found favorable to the project, to be used as a
means of procuring a Charter for the object, from the Legislature.
You have also two other propositions,, presented to you by the Board of Aldermen,
on which you are called upon to cast your votes. You will perceive a wide differ-
ence between the propositions adopted by the City Meeting, and those which are
presented to you by the Board of Aldermen. The former contemplates the adoption
of the project reported upon by our Commissioners, Messrs. Jackson, Baldwin and
Hale, and points to prompt action; — whilst the latter, in the opinion of your Com-
mittee, if adopted, will have no effect but to postpone an undertaking which has
already been too long delayed.
Under these circumstances, fellow-citizens, your Committee — on whom, by your
vote, was involved the duty of " the general charge and direction of such measures
as it may be expedient to take," and with a view of obtaining a fair expression of
public opinion on the great and important enterprise in contemplation — feel that it is
right and proper for them — and, indeed, is demanded bij the case — that they should
proffer to the friends of the true project a icord of advice, as to how they shall vote
upon the tzoo sets of propositions presented to you. We say, then, in brief, if you
want and mean to have the water from the best source, and in anything like a
reasonable time, you should vote Yea on the first two propositions. And, unless
you are willing to throw open the subject anew, to further discussion and renewed
investigation — in short, to postpone the project indefinitely — you will vote Nay on
the two last propositions.
Edward Brooks, Thomas B. Curtis, Geo. Darracott, Nathaniel Greene, Charles
Leighton, Wm. Stearns, Geo. Savage, Thomas J. Lobdell, Charles A. Wells, Rob-
ert Cowdin, Henry Williams, Wm. T. Eustis, Committee.
to report a bill in accordance with the wishes of the petitioners,
and leave it to the city hereafter to determine whether they
will avail of the authority given them to execute the proposed
project. I respectfully submit that such a course would not be
in accordance with established legislative usage, and that the
committee will not report a bill, unless the evidence submitted
has been sufficient to satisfy their own judgments that the pro-
posed measure is necessary and expedient and that the interests
of the city will be advanced by its adoption.
If the necessity or expediency of the proposed plan is a sub-
ject of doubt in the minds of the committee, such a course
would only lead to further delay if the bill should not be
accepted by the citizens. The same consequences would fol-
low if the committee should report that the petitioners have
leave to withdraw. Delay is not desired by the Remonstrants.
They wish to have this question, which is one of deep impor-
tance to the city, settled wisely, and as speedily as can be done
in the exercise of proper prudence, deliberate judgment and
In view therefore of all the circumstances of the case I res-
pectfully ask the committee to consider, whether any wiser
course can be adopted than that pointed out in the Resolve of
the Legislature passed in 1839, of which the city government
in my humble judgment, very unwisely refused to avail them-
This course would be similar to that pursued by the State of
New York, who did not give authority to the city of New
York to commence their great work until explorations and
surveys had been made under the authority of the State,
though the exigencies of that city were far more urgent than
are the necessities of the city of Boston.
The Legislature of 1839 by the resolve referred to, expressed
the opinion that there was not sufficient evidence to enable
them to decide upon the proper source of supply and the best
mode of supplying the wants of the city, and they had all the
light on the subject which the committee now have.
The report and recommendation of commissioners appointed
mider such circumstances, men of intelligence, science and
skill, uncommitted to any particular project, would command
the confidence of the citizens, and in all probability lead to a
satisfactory settlement of this long agitated question.
I submit the questions involved in this case to the judg-
ment of the committee, trusting that they will give to the
views which have been presented in behalf of the remonstrants,
all the weight to which they are entitled, and that they will
not come to a decision in favor of the prayer of the petitioners,
unless they find the evidence to be such as would enable them,
acting as citizens of Boston, to say that the proposed measure is
one which it is necessary^ wise and expedient for the citizens
of Boston to adopt.
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