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of mankind is the reason and end of government, and therefore government in itself is a venerable ordinance of God, and forasmuch as it is principally desired and intended by the proprietary and Governor and the freemen of the Province of Pennsylvania, and territories thereunto belonging, to make and establish such laws as shall best preserve true Christian and civil liberty, in opposition to all unchristian, licentious, and unjust practices, whereby God may have his due, Cæsar his due, and the people their due, from tyranny and oppression on the one side, and insolency and licentiousness on the other, so that the best and firmest foundation may be laid for the present and future happiness both of the Governor and people of this Province and territories aforesaid, and their posterity" (Then follow enactments against profanity, blasphemy, and violation of the Lord's day.) . . . . .

Amidst the concurrent testimony of political and philosophical writers among the Pagans, in the most absolute state of democratic freedom, the sentiments of Plutarch on this subject are too remarkable to be omitted. After reciting that the first and greatest care of the legis lators of Rome, Athens, Lacedæmon, and Greece in general, was, by instituting solemn supplications and forms of oaths, to inspire them with a sense of the favor or displeasure of Heaven, that learned historian declares, that we have met with towns unfortified, illiterate, and without the conveniences of habitations, but a people wholly without religion no traveller hath yet seen; and a city might as well be erected in the air, as a state be made to unite where no divine worship is attended. Religion he terms the cement of civil union and the essential support of legislation. No free government now exists in the world, unless where Christianity is acknowledged and is the religion of the country. So far from Christianity, as the counsel contends, being part of the machinery necessary to despotism, the reverse is the fact. Christianity is part of the common law of this State. It is not proclaimed by the commanding voice of any human superior, but expressed in the calm and mild accents of customary law. Its foundations are broad, and strong, and deep; they are laid in the authority, the interest, the affections of the people. Waiving all questions of hereafter, it is the purest system of morality, the firmest auxiliary, and only stable support, of all human laws. It is impossible to administer the laws without taking the religion which the defendant in error has scoffed at, that Scripture which he has reviled, as their basis. To lay aside these is at least to weaken the confidence in human veracity so essential to the purposes of society, and without which no question of property could be decided and no criminal brought to justice; an oath in the common form on a discredited book would be a most idle ceremony.

THE PROVIDENCE RAILROAD COMPANY AGAINST THE CITY OF BOSTON.*

THIS case was a bill in equity filed by the Boston and Providence Railroad Company against the City of Boston, praying the court to enjoin the city from making sale of a strip of land adjoining the land northerly on which the complainants' dépôt and passenger station, and other buildings, had been erected. The city officers advertised this strip of land, with other lots, for sale at public auction. The railroad company claimed to be entitled to the use of said strip of land, as a public street or highway, and contended that it had either been laid out as a street by the proper authorities of the town, in 1794, or was such by dedication at some period subsequent. The city of Boston denied both these propositions, and maintained that the land in question was not subject to the encumbrance claimed to have been impressed on it, and was free to be sold or disposed of at the pleasure of the city.

The court ruled that the premises had been appropriated to the purposes of a street, and could not be sold without a violation of the rights of the complainants. The following argument was delivered by Mr. Webster, as counsel for the city of Boston.

MAY IT PLEASE YOUR HONORS:

There are two or three points which, in the multitude of questions to be considered in this case, I shall leave where the counsel for the complainants has placed them, without further discussion. One of these is that which arises upon the alleged encroachment of the railroad upon the land in question,

An Argument before the Supreme Court of Massachusetts, sitting at Boston as a Court of Equity, on the 3d of April, 1844.

Of the very numerous arguments of Mr. Webster, in the ordinary practice of the profession, on questions of local interest, not involving political and constitutional principles, few have been reported, nor if reported would it have been expedient to introduce them into a collection of this kind. It has been deemed proper to make an exception in the present case, for the sake of presenting a single specimen of Mr. Webster's mode of arguing causes of this kind.

whether that be a street or land belonging to the city, by which encroachment it is averred by the city that the northern line of the railroad property is pushed farther north. This is a matter of detail, depending upon an examination of evidence, and I leave it to the judgment of the court without discussion.

Another question is that respecting the averment that the land in controversy is a part of the Common. This is also to be ascertained by an examination of evidence, by the original deeds and plans describing the Common, and by the votes and proceedings of the town, which have been fully laid before you. But I take occasion to say, as that is a question which has caused some interest and excitement, that, in my opinion, this land is not, and never was, a part of the Common.

If this street, or land, or whatever it may be, has become and now is a public highway, it must have become so in one of three ways, and to these points I particularly call your honors' attention.

1st. It must either have become a highway by having been regularly laid out according to usage and law; or

2d. By dedication as such by those having the power to dedicate it, and acceptance and adoption so far as they are required; or

3d. As a highway by long user, without the existence of proof of any original laying out, or dedication.

It is not pretended by any one that the land in question is a highway, upon the last of these grounds. I shall therefore confine myself to the consideration of the other two questions; namely, Was there ever a formal and regular laying out of a street here? or was there ever a regular and sufficient dedication and acceptance?

The general history of this strip of land, so far as this controversy is concerned, is well known, and the facts are all fully narrated and exhibited in the evidence which has been laid before you. In the year 1794, there existed in the town of Boston six ropewalks, all in the central part of the town, on Atkinson and Pearl Streets; but they were all burnt down in July of that year, much other valuable property being destroyed by the same fire. It immediately became an object of public interest to take measures to transfer the site of these ropewalks, and to

come to an understanding with their proprietors that they should not rebuild upon the old locality. A town-meeting was accordingly called; and a committee was raised, with instructions to confer with the ropewalk proprietors and come to some agreement with them to place their buildings upon the marshes "at the bottom of the Common," as it was expressed. This was considered a very important matter. The committee appointed consisted of some of the most distinguished inhabitants of the town, among whom I may mention Judge Minot and the late Governor Sullivan, names eminent in our history.

The history of this piece of land, from the date of this meeting down to the present day, divides itself into three eras or periods: the first, from the votes and grants of the town in 1794 till 1824, when all property in these lands was reconveyed to the city, a period of thirty years; then from that time until the location of the track of the Providence Railroad in 1833-4, a period of ten years; and then to the laying out of the land into lots, about a year ago. These three periods cover about fifty years.

The general question is, whether this land became a public road or way, either by a formal laying out or by actual dedication, in either of these periods.

The plaintiffs' bill alleges that there was a public way laid out, either by the votes of the town in 1794, or by other acts subsequently accepted by the town. These acts we suppose to mean the grants made by the selectmen in compliance with the authority conferred by these votes. The first subject of inquiry, therefore, is into the true character and effect of the grant of 1794, and the conveyances made in pursuance of it; and into the acts of the parties under that grant and conveyance. Do either or all of these show that a road or way was laid out upon this land in 1794 or 1795 ?

Now I will first pause for a moment to recall your honors' attention to these proceedings in 1794. At the town-meeting, after the general object for which it had been called had been stated, the record says that they proceeded "to the second article of the warrant," which was, "Whether the town will appropriate the marsh at the bottom of the Common, or any other of the town's lands, for ropewalks for the accommodation of the sufferers by the late fire"; and subsequently they appointed a

committee to confer with the ropewalk proprietors, and “cause a survey to be made of the marsh at the bottom of the Common; also, part of the land on Boston Neck, that may be sufficient for erecting the like number of ropewalks as were owned and consumed."

At a subsequent meeting, on the 1st of September of the same year (1794), the committee made their report, in the form of votes, which they recommended the town to adopt. They were clearly and distinctly drawn up, doubtless by one of the eminent professional gentlemen who were on the committee.

These votes first grant to the owners of the late ropewalks "a piece of marsh land and flats at the bottom of the Common," and then proceed to direct the manner in which it is to be held, and the restrictions upon its use. Thus it was pro

vided that the land should be divided into six parts or lots, one for each sufferer by the fire; the whole land was sufficiently and particularly described; and there are then several provisions with regard to the manner of the use. First, it is provided that, in consideration of this grant, neither of the grantees shall erect ropewalks on the land in Pearl Street occupied by their late ropewalks; secondly, that there shall never be any buildings but ropewalks, nor more than six of them, erected upon the granted land; then that the heads of the ropewalks shall be placed upon the southerly ends of the respective lots; then that the grantees shall erect, within two years, a sufficient sea-wall along the whole westerly side of these lands.

The votes further provide, that "nothing in the foregoing grants shall be considered as conveying to the said grantees, or either of them, any right of passage in any direction across the Common, to or from the said granted lands."

The selectmen are then instructed to execute deeds to the grantees embodying these conditions, and they are also directed by the last vote to "lay out a road sixty feet wide, from Pleasant Street along the easterly side of the lands hereby granted, over the marsh, towards Beacon Street, in order to meet a road that may be opened from West Boston Bridge."

These votes were all passed, and the grants were all made, subject to a reservation expressed in the following terms: — Reserving, however, sixty feet in width across the southerly

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