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Full text of "Acts and resolves passed by the General Court"






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ACTS 



RESOLVES 



PASSED BY THE 



General €0nrt at ^usu\imits, 



SECON^D SBSSIOM 

OF THE YEAR 

18 5 9, 

HELD FOR THE PURPOSE OF COMPLETING THE REVISION OF THE GEN- 
ERAL STATUTES OF THE COMMONWEALTH ; COMMENCING ON 
WEDNESDAY, THE SEVENTH DAY OF SEPTEMBER, AND 
ENDING ON WEDNESDAY, THE TWENTY-EIGHTH 
DAY OF DECEMBER. 

TOGETHER WITH 

THE MESSAGES OF THE GOVERNOR. 



PUBLISHED BY THE 

SECRETARY OF THE COMMONWEALTH. 




BOSTON: 

WILLIAM WHITE, PRINTER TO THE STATE. 

185 9. 



ACTS. 



An Act concerning the terms of the supreme judicial court (JJian, 274 

IN the county of WORCESTER. ^' 

Be it enacted by the Senate and House of Representatives, in General Court 
assembled, and by the authority of the same, as follows : 

Section 1. The jury term of the supreme judicial court whentobeheid. 
for the couuty of Worcester, shall be held on the second 
Tuesday of April in each year. 

Section 2. All acts inconsistent herewith, are hereby Repeal, 
repealed. 

Section 3. This act shall take effect from and after its 

passage. Approved September 19, 1859. 

An Act relating to terms of courts. Chan 275 

Be it enacted, Sfc, as follows : 

Section 1. If the public business demands, the supreme ^'^y adjoum 
judicial court, and superior court, may adjourn an established town to*Ii.nother 
term of tlie court, in one shire town to another in the same '" *"*'"'' county, 
county. Persons, recognizances and processes, required to Processes, &c., 
appear at or to be returned to the established term, shall jourund'tlrrm.'^'^ 
appear at, be returnable to, and have day in the adjourned 
term. 

Section 2. This act shall take effect from its passage. 

Approved September 30, 1859. 

An Act in addition to an act to authorize the appointment nhnv) 976 
of a surveyor-general of lumber, and the establishment of ^' 

A lumber district. 

Be it enacted, ^c, as follows : 

Section 1. The act entitled "An Act to authorize the when to take ef- 
appointment of a Surveyor-General of Lumber, and the *^''' 
establishment of a Lumber District," approved on the sixth 
day of April last, shall be deemed to take effect, as provided 
in the seventh section thereof, only for the purpose of the 
appointment and qualification of the surveyor-general and 



630 1859.— Chapters 277, 278. 

the deputy-surveyors ; and said act shall take full effect on 
the first day of December next. 

Section 2. This act shall take effect on its passage. 

Approved October 1, 1859. 

Chap. 277 -^^ ^^"^ '^^ confirm certain acts done by LEMUEL K. STRICKLAND, 

AS .JUSTICE OF THE PEACE. 

Be it enacted, Sfc. , as follows : 

Acts made Taiid. ^Q ^cts donc by Lemucl K. Strickland, of Sandisfield, in 
the county of Berkshire, as a justice of the peace within and 
for said county, between the fifteenth day of January and the 
fifteenth day of September, in the year eighteen hundred and 
fifty-nine, are hereby made valid and confirmed to the same 
extent as though he had been during that interval duly 
qualified to discliarge the duties of said office. 

Approved October 1, 1859. 

Chap. 278 -^^ ^^'^ making appropriations for the MILEAGE AND COMPENSA- 
TION OF THE MEMBERS OF THE LEGISLATURE, AT THE SPECIAL 
SESSION THEREOF. 

Be it enacted, &,'c., as follows : 
Appropriation for SECTION 1. Thc sums hereinafter mentioned are appro- 

members. .it t. 

priated, and shall be allowed and paid out of the treasury of 
the Commonwealth, from the ordinary revenue, upon the 
warrants of the governor, for the purposes specified, to meet 
the expenses for mileage and compensation of the members 
of the senate and house of representatives, at the present 
special session thereof: 
Mileage and com- YoY tlic milcago of scuators, a sum not exceeding four 

pensation. i t t i ii 

hundred dollars. 

For the mileage of representatives, a sum not exceeding 
two thousand four hundred dollars. 

For the compensation of senators, a sum not exceeding 
twelve thousand three hundred dollars. 

For the compensation of representatives, a sum not exceed- 
ing seventy-two thousand four hundred dollars. 

Section 2. Each member of the senate and house of 
representatives shall receive mileage at the rate of one dollar 
for every five miles travel once during the session from his 
place of abode to the place of the sitting of the general court ; 
and on the first day of each month during the session he 
shall receive two dollars a day, according to the provisions 
of sections second and third of chapter two of the acts of 
eighteen hundred and fifty-eight. 

Section 3. This act shall take effect upon its passage. 

Approved October 17, 1859. 



1859.— Chapters 279, 280, 281. 631 

An Act making a further appropriation to meet the expendi- qj^^^ 279 

TURE authorized BY THE RESOLVE, CHAPTER SIXTY-FOUR, OF THE -T 

PRESENT YEAR. 

Be it enacted, §"c., as folloios : 

Section 1. The sum of two thousand dollars is hereby *2,ooo appropn- 
appropriated, and shall be allowed and paid out of the 
treasury of the Commonwealth, from the ordinary revenue, 
upon the warrant of the governor, in addition to the sum of 
one thousand dollars, appropriated in chapter two hundred 
and seventy-two of the acts of the present year, for the pur- 
pose specified in the resolve chapter sixty-four of the present 
year. 

Section 2. This act shall take effect from and alter its 
passage. Approved October 17, 1859. 

An Act making appropriations for the compensation of the Ql^^fp^ 280 

DOOR-KEEPERS, MESSENGERS AND PAGES OF THE SENATE AND HOUSE 
OF REPRESENTATIVES. 

Be it enacted, §-c., as follows : 

Section 1. The sum of four thousand one hundred dol- «4,ioo appropn- 
lars is hereby appropriated, and shall be allowed and paid ' 
out of the treasury of this Commonwealth, from the ordinary 
revenue, upon the warrants of the governor, for the compen- 
sation of the door-keepers, messengers and pages of the 
senate and house of representatives, at the present special 
session of the legislature. 

Section 2. The said officers shall be paid montlily, at Paid monthly, 
the rate of two dollars a day for each door-keeper or mes- 
senger, and one dollar and fifty cents a day for each page. 

Section 8. This act shall take effect upon its passage. 

Approved Octobtr 17, 1859. 



An Act to change the name of the trustees of the newton Chap. 281 

STREET METHODIST EPISCOPAL CHURCH IN BOSTON. 

Be it enacted, Sfc, as follows: 

Section 1. The Trustees of the Newton Street Methodist ,>;,7''^^-^-,d ':, 
Episcopal Church in Boston, a corporation organized on the ^hejgiuh^socie- 
twenty-seventh day of October, in the year eighteen hundred A\st Episcopal 
and fifty-six, under the provisions of chapter two hundred *^'^"'^«^- 
and eighty, of the acts of the year eighteen hundred and 
forty-seven, may take the name of The Trustees of the 
Eighth Society of the Methodist Episcopal Church in Boston, 
and by such name be a body corporate, with all the powers, 
privileges, duties and liabilities of said chapter, and the 
forty-fourth chapter of the Revised Statutes. 

Section 2. This act shall take effect f^om and after its 
passage. Approved October 17, 1859. 



632 



1859.— Chapters 282, 283. 



Chap. 282 



Capital cases to 
be tried in Su- 
preme Judici^ 
Court, &c. 



Justices may 
hold special 
term for trial 
of capital cases, 
&c. 



An Act relating to the jurisdiction in criminal cases. 
Be it enacted, ffc, as follows : 

Section 1. Every person indicted for a capital offence 
shall be tried in the supreme judicial court by such number 
of the justices thereof as from time to time by law constitute 
a full law court ; and in all respects the proceedings, and 
the rights of the party accused, and the powers and duties 
of the supreme judicial court and the justices and clerks 
thereof, shall be the same as provided by law before the pas- 
sage of an act entitled " An Act establishing the Superior 
Court," except that upon the trial exceptions may be taken, 
and questions of law reserved, to be heard like exceptions 
taken in trials before a single justice. And the superior 
court, and the clerks thereof, shall perform the same duties 
required of the court of common pleas and the municipal 
court of the city of Boston, and the clerks thereof, in rela- 
tion to such cases' before the passage of said act. 

Section 2. The justices of the supreme judicial court, or 
such number of them as constitute a full law court, may 
hold a special term in any county in which an indictment 
for a capital offence is pending, for the trial thereof, at such 
time and place as they direct by an order in writing, under 
their hands, addressed to the sheriff of the county, if it 
appears to them that tlie purposes of public justice require 
the trial to be had before the next stated term of said court 
in such county, or any adjournment thereof; and thereupon 
the said court, and the sheriffs, clerks, and other officers, 
sliall have and exercise the powers prescribed in the forty- 
fourth and forty-fifth sections of the eighty-first chapter of 
the Revised Statutes. 

Section 3. If the indictment is pending in the county of 
Dukes County, the special term shall be held in the county 
of Barnstable. 

Section 4. This act applies to cases now pending, and 
all indictments for capital offences now pending in the 
superior court shall be transferred to the supreme judicial 
court. 

Section 5. All criminal trials in the superior court may 
be before a single justice. 

Section 6. This act takes effect from and after its passage. 

Approved October 17, 1859. 

Chap. 283 -A.n Act making appropriations for certain expenditures and 

DEFICIENCIES, AND FOR OTHER PURPOSES. 

Be it enacted, Sfc, as follows. ■ 

Additional appro- SECTION 1. "^lic sums hereinafter mentioned are appro- 
Bession"i859.'"'^* priatcd and shall be allowed and paid out of the treasury of 



I ndictmen t pend- 
ing iu Dukes, 
special term to be 
held in Barnsta- 
ble. 
Act to apply, &c. 



One justice may 
try criminal cases 
in Supr. Court. 



1859.— Chapter 283. 638 

the Commonwealth, from the ordinary revenue, except 
where herein otherwise provided, upon the warrants of the 
governor, for the purposes specified, as follows, viz. : 

For the salary of the clerk of the supreme judicial court salary cierk s j. 
for the Commonwealth, for the six months ending on the 
thirty-first day of December, of the present year, the sum of 
fifteen hundred dollars. 

For the salary of the assistant-clerk of the supreme judi- Assistant-cierk. 
cial court of the Commonwealth, for the three months end- 
ing on the thirty-first day of December, of the present year, 
the sum of tliree hundred and seventy-five dollars. 

For printing for the legislature, ordered by the sergeant- Printing for leg- 
at-arms, in addition to the appropriation for this purpose, 
made in chapter two hundred and seventy-one of the acts of 
the present year, a sura not exceeding two hundred dollars. 

For printing the report of the commissioners on the revis- Printing report 

n .I , T 1^ i T • J.^ J • on Rev. statutes. 

ion ot the statutes, a sum not exceedmg six thousand nine 
hundred dollars. 

For printing ordered by the joint special committee of the Printing for com- 

T • t i: ,1 ••£•;!,, i J. 1 mittee on stat- 

legislature on the revision ot the statutes, a sum not exceed- utes. 
ing three thousand two hundred dollars. 

For printing required by the legislature at the present ?[^^*'^"/ *''°"' '^s- 
extra session thereof, a sum not exceeding one thousand 
dollars. 

For printing blanks, circulars, and the callendar of the Additional for 
orders of the day for the use of the senate, under the direc- 
tion of the clerk of the senate, in addition to the appropria- 
tion for this purpose, made in chapter seventy-seven of the 
acts of the present year, the sum of thirty dollars. 

For printing such number, not exceeding one hundred ''^r^ntin°'''enerai 
and fifty thousand, of the pamphlet edition of the general laws. 
acts and resolves of the present year, in accordance with the 
provisions of chapter eighty-eight of the resolves of the year 
eighteen hundred and forty-seven, and chapter eighty-nine 
of the resolves of the year eighteen hundred and fifty, in 
addition to the appropriation for this purpose, made in chap- 
ter seventy-seven of the acts of the present year, a sum not 
exceeding two thousand eight hundred and fifty dollars. 

For printing ten thousand coines of the report of the board J"""*'"! '■«.p°';* 

. -, ~ . IT- 1 •• n !• board of agricul- 

01 agriculture, in addition to the appropriation lor tins ture. 
object in said chapter seventy-seven, a sum not exceeding 
eight hundred dollars. 

For the state library, in addition to the appropriation state library. 
made therefor, in chapter two hundred and seventy-one of 
the present year, a sum not exceeding one hundred dollars. 



634 1859.— Chapter 283. 

Town of Belmont. YoY GxpensG of fiirnishiiig the town of Belmont with 
weights, measures and balances, according to chapter one 
hundred and ninety-five of the acts of the year eighteen 
hundred and fifty, the sum of one hundred and fifty dollars. 

stationery, &c.. For Stationery and parchment for the secretary of the 

or secretary. Commouwealth, incidental to the revision of the statutes, a 
sum not exceeding one thousand dollars. 

Printing, &c., For printing and incidental expenses of the office of the 

for^adjutant-gen- adjutant-geucral, in addition to the appropriation for these 
purposes, made in said chapter seventy-seven, a sum not 
exceeding two hundred dollars. 

Expenses incur- For expeuscs iucurrcd the present year under the provis- 

489, Acteisss^^ ions of an act entitled "An Act to protect the rights and 
liberties of the people of the Commonwealth of Massachu- 
setts," being chapter four hundred and eighty-nine of the 
acts of the year eighteen hundred and fifty-five, a sum not 
exceeding two hundred dollars. 

Ho-iltaf ^^'^""^ ^^^^ sundry expenses of Rainsford Island Hospital, incurred 
in the year eighteen hundred fifty-eight, and previous years, 
the sum of one hundred and fifty dollars. 

Coroners. For coroucrs' accounts for the year eighteen hundred and 

fifty-eight, and previous years, the sum of four hundred and 
fifty dollars. 

state paupers. For suudry expenditures for the support and relief of 

state paupers, otherwise tlian in the three almshouses and in 
the hospital at Rainsford Island, in the year eighteen hun- 
dred fifty-eight, and previous years, a sum not exceeding one 
thousand dollars. 

Alien commis- For suudry expenses of the alien commissioners in the 

missioners. year eighteen hundred and fifty-eight, and previous years, 
the sum of eighty dollars. 

Courts of insoi- For suudry expenses of the courts of insolvency, for the 

Tency or year eiglitecu hundred fifty-eight, and previous years, the 

sum of one hundred dollars. 

Advertising east- For advertising eastern lands, under the resolve chapter 

em lands. fifty-two, of thc prcscut ycar, the sum of five hundred and 

thirty-five dollars and sixty-two cents. 

Highland Agri- For bouuty to tlic Highland Agricultural Society, the sum 
ociey. ^^ three hundred and eighty-three dollars and forty cents. 

state Reform For expcuscs iucidcut to the late fire at the state reform 

penses'inMdent school, at Wcstborough, as follows, viz. : 

to the fire. For rcpalrs of buildings, and providing accommodations 

for the inmates of said school by the trustees, a sum not 
exceeding six thousand seven hundred and fifty dollars. 

For expenses incurred by J. S. C. Knowlton, sheriff of the 
county of Worcester, in the removal and accommodation of 



1859.— Chapter 284. - 635 

a portion of the inmates of the State Reform School, a sum 
not exceeding thirty-seven hundred dollars, payable to said 
Knowlton ; of which sum twenty-five hundred eighty-two 
dollars and sixty-one cents, and interest from the first day of 
October current, is to be paid from the appropriation made 
in chapter two hundred and seventy-one, of the acts of the 
present year, for the current expenses of said State Reform 
School. 

For expenses not yet ascertained, incident to the said fire 
at said reform school, subject to the approval of the attorney- 
general, and which are not already provided for in the 
annual appropriation for the current expenses of said school, 
a sum not exceeding five hundred dollars. 

For the expenses of filling up and completing certain Back Bay, spec- 
lands in the Back Bay, required by section three of chapter l^s, &r"''*''*""" 
two hundred and ten of the acts of the present year, twenty- 
five thousand dollars ; for the compensation of the special 
commissioners appointed under section four of said act, four 
hundred and fifty dollars : said sums to be paid on the order 
of the commissioners on the Back Bay, from the moiety of 
the proceeds of sales which by the resolves one thousand 
eight hundred and fifty-seven, chapter seventy, is applicable 
to improvements. 

For the compensation and expenses of the committee commissioners 
appointed in pursuance of the resolve, chapter forty-seven, l^TDdsTconcl-d 
of the present year, concerning the flowage of lands in the and other towns. 
towns of Concord, Sudbury, Wayland, Bedford, and Carlisle, 
in addition to the sum appropriated for this purpose, in 
chapter two hundred and seventy, of the acts of the present 
year, the sum of three hundred dollars. 

Section 2. The salary of the assistant-librarian and sec- salary of assist- 
retary of the board of education, shall be paid from the se°eretary"''of*° 
moiety of the income of the school fund applicable toeduca- tiZ,\ow S-*' 
tional purposes, any thing in chapter two hundred and ^^e. 
seventy-two of the acts of the present year, to the contrary 
notwithstanding. 

Section 3. This act shall take effect from and after its 
passage. Approved October 22, 1859. 

An Act concerning the supreme judicial court. Chan 284 

Be it enacted, ^c, as follows : 

Whenever any suit or petition is instituted or an appeal Appeals, &c., in 
is made from the decision of a judge of probate and insol- "^^T °nso[vency 
vency, except in cases of insolvency in either of the counties j°^o"atuw terms 
of Worcester, Hampshire, Berkshire or Hampden, cognizable in counties where 

, '.,r.i' . . -, ,. J.' ^ instituted, ex- 

in the supreme judicial court in said counties respectively, cept, &c. 

2 



636 



1859.— Chapter 285. 



tlie same may be made returnable to and have day at the 
law terms held in said counties wlierein such suits, appeals 
or petitions are instituted, as well as at terms held therein 
for the trial of jury causes only. Approved October 25, 1859. 



Chap. 285 



School establish- 
ed. 



Government to 
Test in five trus- 
tees. 



How appointed, 
&c. 



Vacancies, how 
filled. 



No compensa- 
tion, &c. 



Trustee.'; to be a 
corporation. 



Powers, duties, 
&c. 



An Act establishing the nautical branch of the state reform 

SCHOOL. 

Be it enacted, c^'c, as foUoivs: 

Section 1 . There shall be established in some harbor of 
the Commonwealth, to be determined by the governor and 
council, a school to be called " The Nautical Branch of the 
State Reform School," the government whereof shall be 
vested in five trustees. Immediately upon the passage of 
this act three trustees shall be appointed by the governor 
and council, for the several terms of one, two, and three 
years, and hereafter, one annually for the term of three 
years ; one trustee shall be annually appointed by tlie Boston 
Board of Trade, and one by tlie Boston Marine Society, each 
for tlie term of one year, subject to the approval of the gov- 
ernor and conncil. The terms of office of all the trustees 
shall expire on the first Wednesday of February. Vacancies 
for unexpired terms shall be filled in the same manner in 
which the persons whose places are vacated were appointed : 
any person whose term has expired may be reappointed. 
The trustees shall receive no compensation for their services, 
but shall be allowed all expenses incurred by them in the 
discharge of their duties. 

Section 2. The trustees shall be a corporation by the 
name of the Trustees of the Nautical Branch of the State 
Reform School, for the purpose of taking and holding, to 
themselves and their successors, in trust for the Common- 
wealth, any grant or devise of lands, and any donation and 
bequest of money or other personal property, made for the 
nse of said institution, and for the purpose of preserving and 
investing the proceeds thereof in good securities, with all 
powers necessary to carry said purposes into effect. 

Section 3. The trustees shall have control of the school- 
ship to be hereafter procured for the use of said institution, 
and shall exercise and perform the same powers and duties 
over the same, and over the inmates of said institution, as 
are exercised and performed by the trustees of the state 
reform school, over the school at Westborough, and the 
inmates thereof; they shall have the same powers in relation 
to the appointment, removal, and compensation of the super- 
intendent, and other officers, teachers, and servants, and the 
same power to bind out any boy as an apprentice or servant, 



1859.— Chapter 286. 637 

whom they deem not suited for nautical employment. They 
may, with the approval of the governor and council, make 
by-laws and alter the same. They shall also cause the boys 
under their charge to be instructed in navigation and the 
duties of seamen. They may also send any boy upon any 
voyage at sea, and in his behalf, enter into any contract 
necessary therefor, and such action shall operate as a discharge 
of the boy from the institution. 

Section 4. There shall be a treasurer appointed by the Treasurer, how 
governor and council for the term of three years, unless ''^^°"' *" ' 
sooner removed for sufficient cause, who shall, before he 
enters upon the discharge of his duties, give a bond to the Bond, f 3,000. 
Common wealtli, with sureties satisfactory to the governor 
and council, in the sum of three thousand dollars, conditioned 
that he shall faithfully account for all moneys received by 
him as treasurer ; which bond shall be filed in the office of 
the treasurer of the Commonwealth. 

Section 5. The effect of a commitment to the school Effect of commit- 
hereby established, and the effect of a discharge therefrom, "sTeform^'JchooL 
shall be the same as is provided in the case of the state 
reform school. 

Section 6. The superintendent shall be the master of the superintendent, 
school-ship. He shall give bond as required of the superin- '^m'^" ^ '^' 
tendent of the state reform school. He shall exercise and powers anddu- 
perform the same powers and duties in relation to the insti- ''*'*■ 
tution hereby established, and the property and inmates 
thereof, as the superintendent of the state reform school 
exercises and performs in relation to the state reform school, 
its property and inmates ; and he may navigate the ship, or 
any tender thereof, and transport the same into and upon 
any of the ports and waters of the Commonwealth. 

Section 7. This act shall take effect on its passage, but when ^ take 
no boy shall be committed or sent to said institution until "'' ' 
the governor, by proclamation, gives notice that the school- 
ship, to be procured under the authority of resolves entitled 
" Resolves for the purchase of a vessel for the use of the 
Nautical Branch of the State Reform School," is ready for 
inmates. Approved October 28, 1859. 



An Act relating to the state reform school and the nauti- Qfidp, 286 

CAL BRANCH OF THE SAME. "' 

Be it enacted, §'c., as folloios : 

Section 1. Whenever any boy under the age of sixteen Boysmajbecom- 

1 1 1 1 f , • 1 • i- T J. niitted to nautl- 

years is brought beiore any trial justice or police court, cai branch of 
charged with any offence punishable by imprisonment, other- gy^oou"^"^'" 
wise than for life, and the justice or court is of opinion that 



638 



1859.— Chapter 286. 



Method of pro- 
cedure. 



Appeal, powers, 
&c., of officers. 



Unfit subjects 
may be bound 
over. 



Supreme or supe- 
rior courts may 
commit. 



Age — sentence. 



the boy, if found guilty, would be a fit subject for the state 
reform school, or for the nautical branch of the state reform 
school, or if any person in behalf of such boy makes affidavit 
that he believes him to be a fit subject therefor, such justice 
or court, by warrant in due form of law, shall cause such 
boy to be brought forthwith before the judge of probate and 
insolvency for the same county, or any judge of the superior 
court who may be found within the county, and shall trans- 
mit to said judge the complaint by virtue of which he was 
arrested, and shall cause notice of the pendency of such 
complaint to be given to the mayor of the city or one of the 
selectmen of the town, wherein the boy resides ; and the 
judge committing such boy, shall certify on the warrant, in 
what place the boy resided at the time of his commitment ; 
and such certificate, for the purposes of this act, shall be 
conclusive evidence of his residence. In such case, or when- 
ever such boy is brought originally before such judge on 
such complaint, he shall proceed in the manner prescribed 
in the case of a girl brought before a judge of probate and 
insolvency on a similar complaint, having, in case such boy 
is originally brought before him, first caused notice to be 
given as aforesaid, and he shall, if of opinion that the boy is 
guilty, and is a suitable subject for the state reform school, 
or for the nautical branch of the state reform school, commit 
him to the one or the other of said institutions. 

Section 2. The right of appeal, and the powers and 
duties and fees of all officers, shall be the same as are pro- 
vided by law in the case of a girl brought before such judge 
on a like complaint. 

Section 3. If the judge is of opinion that the boy is 
guilty, and is not a fit subject for either of said institutions, 
he shall, if the offence charged is one witliin the jurisdiction 
of police courts, sentence him to such punishment as is pro- 
vided by law for the offence, subject to the right of appeal, 
as in cases before police courts, and otherwise he shall bind 
him over to appear before the superior court for the same 
county, as police courts may do in like cases. And all laws 
relating to appeals from police courts, and the taking and 
return of recognizances, shall apply to cases under this act. 

Section 4. The supreme judicial court and the superior 
court may commit any boy to the state reform school, as now 
provided by law, or to the nautical branch of the state reform 
school in like cases, if the convict is deemed suited to nauti- 
cal employments, or otherwise to such punishment as is 
provided by law for the offence ; but no boy over the age of 
fourteen years shall be committed by any court or judge to 



1859.— Chapter 287. 639 

the state reform school at Westborough ; and all commit- 
ments to either school shall be during minority, and no sen- 
tence shall be in the alternative. 

Section 5. By consent of the trustees of the state reform Boys may be 
school, and of the nautical branch of the state reform school, ''■"'°^^''"'^'*- 
or by direction of the governor, any boy may be transferred 
from one institution to the other : provided, that no boy who Proviso, 
is an inmate of the state reform school when this act takes 
effect, shall be so transferred without his consent. 

Section 6. Whenever any boy is committed to either of support. 
said schools, the city or town wherein he resides at the time 
of his commitment, shall pay to the treasurer of the school 
the sum of fifty cents per week, payable quarterly on the first 
days of January, April, July and October, during the time 
he remains therein. And any sum so paid may be recovered 
by such city or town of any parent, kindred, or guardian, 
liable by law to maintain such boy, or of the city or town in 
which he has his lawful settlement. 

Section 7. The first section of the one hundred and Repeal. 
seventieth chapter of the acts of the year one thousand eight 
hundred and fifty-nine, is hereby repealed ; but this repeal 
shall not affect any action pending, or any rights accrued 
thereunder. 

Section 8. This act shall take effect in thirty days after its when to take 
passage, but no commitments shall be made to the nautical 
branch of the state reform school, until the governor, by his 
proclamation, gives notice that the same is ready for inmates. 

Approved October 28, 1859. 
An Act for the regulation op wooden buildings in the city Chap. 287 

OF NEW BEDFORD. 

Be it enacted, S^'c, asfolloios: 

Section 1. The city council of the city of New Bedford city council to 
are hereby authorized and empowered to make all such Sr the^erecuon 
regulations, ordinances, and by-laws, as they may deem I'^gr"'^^'" '"''^'^' 
expedient concerning the erection of wooden buildings with- 
in the limits of the city, for protection against fire ; to estab- 
lish districts within which wooden buildings, except of a 
prescribed size, shall not be erected, and to prescribe such 
penalties as they deem proper, for the violation of any such 
regulations, ordinances, and by-laws. 

Section 2. Any building hereafter erected in the city of Bu'Uinss to be 
New Bedford, contrary to the provisions of such by-laws, ordi- .sanl^'e^ 
nances, or regulations, shall be deemed and taken to be a 
common nuisance ; and the mayor and aldermen of the said Mayorand aider- 
city shall have the like power and authority to abate and ^nd "^ 



men may abate 
' remove. 



640 1859.— Chapters 288, 289. 

remove the same, as is given to the board of health in the 
tenth and eleventh sections of the twenty-first chapter of the 

rroTiso. Revised Statutes : provided, however, that nothing in this 

section shall be construed as affecting any remedy already 
given in the preceding section. 

Repeal. SECTION 3. Tho act entitled " An Act for the regulation 

of wooden buildings in the city of New Bedford," approved 
March twenty-fourth, in the year eighteen hundred and fifty- 
five, is hereby repealed. Approved November 22, 1859. 

Chap. 288 ^^ ^^"^ "^^ incorporate the proprietors of the shawmut ave- 
nue BAPTIST SOCIETY, IN BOSTON. 
Be it enacted, ^'c, as folloivs : 
Corporators. SECTION 1. J. W. Parker, Benjamin Smith and John K. 

Deane, and their associates and successors, are hereby made 
Name. a corporatiou by the name of the Shawmut Avenue Baptist 

ftrilti^n?' &T Society ; with all the powers and privileges, and subject to 
all the duties, restrictions and liabilities, set forth in the 
twentieth and forty-fourtli chapters of the Revised Statutes ; 
with power to tax pews according to the provisions of " An 
Act relating to Religious Societies," passed March twenty- 
fifth, in the year one thousand eight hundred and forty-five, 
wh^n to be^'hild' Section 2. The annual meeting of said religious society 
&c. ' shall be held on any day in April in each year, Sunday 

excepted ; and at said meeting there shall be chosen by 
ballot a moderator, clerk, treasurer, collector, and a standing 
committee, consisting of seven persons ; all of whom shall 
continue in office one year, and until others are chosen and 
qualified in their stead. 

Section 3. This act shall take effect from and after its 

passage. Approved November 29, 1859. 

Chap. 289 ^^ -^^"^ declaring the territorial LIMITS OF THE COMMON- 
WEALTH, AND ESTABLISHINa THE LIMITS OF CERTAIN COUNTIES. 

Be it enacted, §'c., as follows : 
Limits, how far SECTION 1. The territorial limits of this Commonwealth 

extending to sea. . -, . , n ■ , ^ ■ i ■ 

extend one marine league from its sea-shore at low-water 
mark. Wlieii an inlet or arm of the sea does not exceed 
two marine leagues in width between its headlands, a straight 
line from one headland to the other is declared to be equiva- 
lent to the shore line. The boundaries of counties bordering 
upon the sea shall extend to the line of the State as above 
defined. The jurisdiction of counties separated by waters 
within the jurisdiction of the State shall be concurrent. 
Section 2. This act shall take effect from its passage. 

Approved December 16, 1859. 



1859.— Chapters 290, 291, 292. 641 

An Act in addition to An Act respecting the purchase and QJiq^/v) 290 
distribution of the reports of cases argued and deter- "' 

mined in the supreme judicial court. 
Be it etiacted, ^'c, as follows : 

Section 1. The secretary of the Commonwealth is liereby secretary to fur- 
authorized and directed, whenever an appropriation shall dw reports. ''^' 
liave been made therefor, to furnish the seventh volume of 
Gray's Reports, and any volume of reports of cases argued 
and determined in the supreme judicial court of Massachu- 
setts, which may hereafter be published, to the clerks of 
each town and city in this Commonwealth, for the use of 
such town or city. 

Section 2. This act shall take effect on and after its 
passage. Approved December 16, 1859. 

An Act relating to the writ of habeas corpus. Chap. 291 

Be it enacted, Sfc, as folloios : 

Section 1 . Every writ of liabeas corpus which may be Return of writ, 
issued under the laws of this Commonwealth, after this act 
shall take effect, shall be made returnable forthwith, either 
before the supreme judicial court, the superior court, or a 
justice of either of said courts, in term time, or vacation, 
and whether the court is in session or not, and at such place 
as shall be designated in the writ. 

Section 2. In all cases of imprisonment or restraint by 
a person not a slierifif, deputy-sheriff, coroner or jailer of this 
State, the writ shall be in the following form : 

commonwealth of MASSACHUSETTS. 

[seal.] To the sheriffs of our several counties, and their respective Form, 
deputies, 

Greeting : 

We command you that the body of of by 

of imprisoned and restrained of his liberty, as it is said, you take 

and have before a justice of our supreme judicial court, (or superior 

court, as the case may be,) at immediately after receipt of this 

writ, to do and receive what our said justice shall then and there consider 
concerning him in this behalf; and summon said then and there 

to appear before our said justice, to show the cause of the taking and 
detaining of said : and have you there this writ with your doings 

thereon. Witness at . this day of in the 

year 

Section 3. This act shall take effect from and after its 

passage. Approved December 21, 1859. 

An Act making further appropriations for the repair and /^7,^jj OQO 
maintenance op charles river and warren bridges. _[ . ^d'o 

Be it enacted, §'c., as folloios : 

The sums hereafter mentioned are appropriated and Appropriation. 
shall be allowed and paid out of the Charles River and 



642 1859.— Chapters 293, 294. 

Warren Bridges Fund, on the warrant of the governor, in 

addition to the sums appropriated from said fund in chapter 

one luindred and ninety-eight, of the acts of the present 

Repairs and jcar ; that is to say : For the payment of such claims as 

tlvee"n''janu'ary\" ^^^J ^^ approvcd l\y thc auditor, for the repair and mainte- 

1859 ^""^ ^^' ^^''^^^ce of Charles River and Warren Bridges, between the first 

day of January, eighteen hundred and fifty-nine, and May 

nineteenth, eighteen hundred and fifty-nine, a sum not 

Subsequent re- cxcccding two thousaud one hundred dollars ; for repairs on 

tenlnc'^e" '"'^'"" Said bridgcs since the said nineteenth of May, a sum not 

Incidental ex- excccding ouc thousaud dollars ; for incidental expenses of 

penses. |-|^g draw-tcndcrs on said bridges, a sum not exceeding one 

hundred dollars. Approved December 21, 1859. 



Chap. 293 



An Act authorizing an issue of scrip for the payment op the 

expenses of the revision op the general statutes. 
Be it enacted, Sfc, as follows : 

Treasurer to is- SECTION 1. Thc trcasurcr of this Commonwealth is 
hereby authorized and directed to issue scrip or certificates 
of debt, in the name and behalf of tlie Commonwealth, and 
under his signature and the seal of the Commonwealth, 
bearing date on the first day of January, in the year one 

$150,000. thousand eight hundred and sixty, for the sum of one hun- 

dred and fifty thousand dollars, with coupons attached for 
interest at the rate of five per centum per annum, payable 
semi-annually on the first days of July and January at the 
office of said treasurer, and redeemable at the same place on 
the first day of January that shall be in the year one thou- 
sand eight hundred and seventy, which scrip or certificates 
shall be countersigned by the governor, and shall be deemed 
to be a pledge of the faith and credit of the Commonwealth 
for the redemption thereof; and the same shall be sold by 

Proviso. the treasurer : provided, that no part thereof shall be sold 

at less than par, and the proceeds thereof shall be paid into 
the treasury of the Commonwealth. 

Section 2. This act shall take effect from and after its 
passage. Ajwo^^'^ December 22, 1859. 



Chap. 294 



An Act for the removal of constables, for cause, in cities. 
Be it enacted, ^c, as follows : 
Removal for mis- Tlic mayor of any city shall, with consent of the alder- 
men, remove from office any constable of such city, who 
shall be guilty of gross misconduct. 

Approved December 23, 1859. 



conduct. 



1859.— Chapters 295, 296. 643 

An Act making appropriations for the compensation of the 



COMMITTEE ON THE REVISION OF THE STATUTES, AND FOR OTHER 
PURPOSES. 



Chap, 295 



Be it enacted, Sfc, as follotvs : 

Section 1. The sums hereinafter mentioned are appro- Appropriationa 
priated and shall be allowed and paid out of the treasury of 
the Commonwealth from the ordinary revenue, upon the 
warrants of the governor, for the purposes hereinafter 
specified : for the compensation and mileage of the com- compensation 
mittee to sit in the recess of the general court, to whom was 
referred the report of the commissioners on the revision of 
the statutes, in addition to the sum heretofore appropriated, 
the sum of two thousand and seven hundred dollars ; for 
the compensation of the clerk, messengers, door-keepers, cierk.__ messen- 
pages, and for contingent and incidental expenses of said 
committee, in addition to the sum heretofore appropriated, 
three thousand nine hundred and fifty dollars. 

Section 2. This act shall take effect on and after its 
passage. Approved December 23, 1859. 



gers, &c. 
Incidental. 



Chap. 296 



An Act in addition to an act making appropriations for 
certain expenditures and deficiencies, and for other 
purposes. 

Be it enacted, §'c., as follows : 

Section 1. The sums hereinafter mentioned are appropri- Appropriations 

'^ *■ *■ authorized, &c. 

ated and shall be allowed and paid out of the treasury of the 
Commonwealth, from the ordinary revenue, upon the war- 
rants of the governor, for the purposes specified in certain 
acts and resolves, for the present year, herein cited, as 
follows, viz. : 

For the mileage and compensation of the lieutenant- Lieutenant- 
governor and council, in addition to former appropriations, ^o°uncii°' ^""^ 
a sum not exceeding three thousand dollars. 

For the compensation of senators, in addition to former senate. 
appropriations, a sum not exceeding four thousand dollars. 

For the compensation of representatives, in addition to House. 
former appropriations, a sum not exceeding twenty thousand 
dollars. 

For the salaries of the clerks of the senate and house of cierka of legisia- 
representatives, including the compensation of such assistants *""' 
as tliey may appoint, four thousand dollars in addition to 
former appropriations. 

For the salaries of the chaplains of the senate and house chaplains. 
of representatives, four hundred dollars in addition to former 
appropriations. 

For fees of witnesses summoned before committees having witnesses. 
authority to send for persons and papers, a sum not exceed- 

3 



644 



1859.— Chapter 296. 



stationery- 
House. 



Senate. 



State library. 



Indian commis- 
sioner. 



S. J. Court de- 
cisions. 



Public docu- 
ments. 



Everett's oration. 



Countersigning 
bank notes. 



Marshpee In- 
dians. 



Rainsford Island 
hospital. 



Printing, &c., 
for legislature. 



S. J. Court — ex 
penses. 



ing three hundred dollars, in addition to former appropria- 
tions. 

For stationery for the house of representatives purchased 
by the clerk, which, together with the unexpended balance 
for the regular session, may be used to meet bills of the 
extra session, six hundred dollars. 

For stationery for the senate, purchased by the clerk, 
which, together with the unexpended balance for the regular 
session, may be used to meet bills of the extra session, two 
hundred dollars. 

For the state library, five hundred dollars, in anticipation 
of appropriations of eighteen hundred and sixty, and in addi- 
tion to former appropriations. 

For compensation and expenses of the commissioner on 
Indians, appointed under chapter two hundred and sixty-six, 
of acts of eighteen hundred and fifty-nine, one thousand 
dollars. 

For term reports of cases in supreme court, under the 
provisions of chapter two hundred and sixty-five and two 
hundred and ninety of the acts of eighteen hundred and 
fifty-nine, four thousand dollars. 

For printing public documents of eighteen hundred and 
fifty-eight, one hundred dollars. 

For expenses attending the delivery of Mr. Everett's ora- 
tion on Webster, two hundred dollars. 

For compensation of the person appointed under authority 
of acts of eighteen hundred and fifty-nine, chapter two hun- 
dred and twenty-one, section six, to countersign circulating 
notes of the similitude of bank notes, and the same may be 
paid to the clerk in the auditor's office, in addition to his 
salary, three hundred dollars. 

For the support of certain Marshpee Indians, in addition 
to the sum allowed in chapter one hundred of resolves of 
eighteen hundred and fifty-nine, to be paid from the existing 
api)ropriation for Indians, thirty-nine and eighty-five one- 
hundredths dollars. 

For expenses of hospital at Rainsford Island, in addition 
to amount appropriated in chapter two hundred and seventy- 
one, acts of eighteen hundred and fifty-nine, three thousand 
dollars. 

For printing, stationery, advertising, postage, and books 
ordered by the sergeant-at-arms, for the legislature, in addi- 
tion to former appropriations, one hundred dollars. 

For the payment of expenses of the supreme court for the 
Commonwealth, according to the provisions of chapter one 
hundred and ninety-six of acts of eighteen hundred and 



1859.— Chapter 296. 645 

fifty-nine, four hundred and ninety-eight forty-six hundredths 
dollars. 

For binding railroad reports, according to chapter two Binding railroad 
hundred and sixty-two, acts of eighteen hundred and fifty- '^'p°''''- 
nine, two hundred dollars. 

For the payment of railroad fare of military companies. Railroad fare- 
according to chapter one hundred and twenty of resolves of ^fJt. ^°''.'""^" 
eighteen hundred and fifty-nine, eight hundred dollars. 

For expenses of Luther Stowell, according to chapter one Luther stoweii. 
hundred and fifteen of resolves of eighteen hundred and 
fifty-nine, sixty and fifty one-hundreths dollars. 

For comoensation of the commissioners on consolidating Commissioners 

i .,,.,. ^ r. . ,• on revision of 

the general statutes, m addition to lormer appropriations, statutes. 
twenty thousand dollars. 

For the compensation of the clerk of the committee of cierk-commit- 

1 1 1 ir./'j.jn tee of Revision. 

revision, eleven hundred and hity dollars. 

For door-keepers, messengers and pages of the legislature, ^°°^;^'g^^Pf^^'^^j 
five thousand six hundred dollars, being compensation for pages. 
services at the extra session. 

For rebuilding the state reform school for boys, thirty Reform schooi. 
thousand dollars. 

For allowance to Lydia Russell and D. F. Crane, eight ^^f^'c^Z""^'" 
hundred and twenty-seven dollars, according to the provis- 
ions of resolves of eighteen hundred and fifty-nine, chapter 
one hundred and twenty-nine. 

For expenses under chapter ninety-three of the resolves Report on insects 

«.,^, -.1 1/^7. . ,1 z>i xi 1 of New England. 

of eighteen hundred and fifty-nine, the sum oi two thousand 
dollars, the same to be in addition to sums" appropriated 
under chapter two hundred and seventy-three, of acts of 
eighteen hundred and fifty-nine. 

For allowance to John P. Bass, according to provisions of J°'^" ''• ^^«- 
resolves of eighteen hundred and fifty-nine, cliapter one 
hundred and thirty-one, seven hundred and fifty dollars. 

For compensation of the watchmen in the state house, in watchmen, 
addition to their salary, according to resolves of eighteen 
hundred and fifty-nine, chapter one hundred and thirty- 
three, four hundred dollars. 

For allowance to Maria T. Benson, according to provisions Maria t. Benson. 
of resolves of eighteen hundred and fifty-nine, chapter one 
hundred and thirty-five, four hundred dollars. 

For expenses of reporting evidence and pay of witnesses ^Xfo'n^uqu'^r 
before the special committee of the house on the liquor commission, 
commission, four hundred and fifty-one dollars. 

For compensation of the sergeant-at-arms, in addition to sergeant-at- 
former appropriations for his salary, three hundred dollars. 

Section 2. This act shall take effect from and after its 
passage. Approved December 28, 1859. 



RESOLVES. 



ChapAOi 



Resolve for the payment of certain expenses of the sale of 

THE house lately OCCUPIED BY THE SERGEANT-AT-ARMS. 

$160 appropri- Resolved, That a sum not exceeding one hundred and 
sixty dollars, be, and is hereby appropriated out of the pro- 
ceeds of the sale of the house in Hancock Street, formerly 
occupied by the sergeant-at-arms, for the payment of the 
expenses of advertising, and sale of said house by public 
auction, April twenty-eighth, one thousand eight hundred 
and fifty-nine, as per resolve, chapter ninety-five, of one 
thousand eight hundred and fifty-nine. 

Approved September 19, 1859. 

Chew 105 Resolve in favor of hon. james t. robinson. 

$3i appropriated Reso/ved, That thcrc be allowed to the Hon. James T. 

for mileage. Robiusou, thc sum of tliirty-four dollars, the same being due 
to him as mileage while a member of the senate from the 
North Berkshire District, during the first session of the year 
eighteen hundred and fifty-nine : and the said sum of thirty- 
four dollars is hereby appropriated and shall be paid out of 
the treasury of the Commonwealth from the ordinary reve- 
nue, upon the warrant of the governor for the purpose above 
specified. Approved September 27, 1859. 

Chap. 106 Resolves of thanks to and in favor of the ancient and hon- 
orable artillery company. 

Tiianks for escort Resolved, That the thanks of the legislature be presented 
chusetts^ '^^^^ to Joseph Audrcws, commander, and the other officers and 
members of the Ancient and Honorable Artillery Company, 
for the very handsome escort furnished by them to the legis- 
lature, on the occasion of their visit to Camp Massachusetts. 
Slop appropri- Resolved, That the sum of ouc hundred doUars be allowcd 
to said company, towards the expense incurred by them in 
said service, and the said sum of one hundred dollars is 
hereby appropriated, and shall be paid out of the treasury of 



ated 



1859.— Chapters 107, 108, 109, 110, 111. 647 

the Commonwealth from the ordinary revenue, upon the 
warrant of the governor, for the purpose herein specified. 

Resolved. That a copy of these resolves be ene-rossed, popy ofresoires 

J , , . n to company. 

Signed by the president of the senate and speaker of the 
house of representatives, and transmitted to the company. 

Approved October 1, 1859. 

Resolve authorizixg a loan for rebuilding the court house Chap. 107 

IN LAWRENCE. 

Resolved, That the commissioners of the county of Essex ^P^°^^ commis- 

' . '' sioners may Dor- 

are hereby authorized to borrow, on the credit of said county, row $15,000. 
a sum of money not exceeding fifteen thousand dollars, to be 
expended in rebuilding and repairing the court house at 
Lawrence, recently injured by fire. 

Approved October 17, 1859. 

Resolve extending the time for the commissioner appointed Chap. 108 

UNDER the act CONCERNING THE INDIANS OF THE COMMONWEALTH, 
TO MAKE HIS REPORT. 

Resolved. That the report of the commissioner appointed T"l^ Wednesday 

-|, .^.^ '^ ^ m January. 

under the act concerning the Indians of the Commonwealth, 
approved April sixth, eighteen hundred fifty-nine, instead of 
being made at the present session, shall be made to the gov- 
ernor, on or before the first Wednesday of January next, for 
the information and consideration of the general court for 
the year eighteen hundred sixty. Approved October 17 1859. 

Resolve in favor of the commissioners of the county of Chap. 109 

DUKES COUNTY. 

Resolved, That the commissioners of the county of Dukes $i';^oo "to'Tdsh 
county are hereby authorized to borrow, on the credit of courthouse, 
said county, a sum of money not exceeding fifteen hundred 
dollars, to be expended in finishing the court house at 
Edgartown. Approved October 25, 1859. 

Resolve in relation to the state almshouse at monson. Chap. 110 
Resolved, That the inspectors of the state almshouse at inspectors to ex- 
Monson, be allowed to expend, out of the annual appropria- p*'^'* *i'^00' ^^ 
tion for the year one thousand eight hundred and fifty-nine, 
a sum not exceeding one thousand dollars, not needed for its 
current expenses, to complete a system of works already 
begun, to render more safe from fire said almshouse. 

Approved October 25, 1859. 

Resolves concerning the state reform school at west- Chap. Ill 
borough. 
Resolved, That the trustees of the state reform school Trustees to cause 
at Westborough, be authorized and requested to cause plans prepare^''*" "^ 



648 1859.— Chapter 112. 

and estimates to be made for the reconstruction of so much 
of the building recently destroyed or injured by fire, as shall, 
together with the portions uninjured, furnish accommoda- 
tion for a number of boys not exceeding two hundred, and 
for the necessary officers ; the plans to be made with special 
reference to precautions against fire, and to be so arranged 
that the said boys shall be divided into five classes, including 
a correctional class — no one class to consist of more than 
fifty boys, and each class to be kept separate, at all hours, 
from the other classes. 

Resolved, That the trustees be also authorized and re- 
quested to cause plans and estimates to be made, for fitting 
up for the use of the inmates, such of the small buildings 
belonging to the school, as they may think suited for the 
purpose ; aiid for the erection on the farm attached to the 
school, of such other buildings for the accommodation of 
the boys, as they may think expedient, to be constructed of 
brick, and in a plain and economical manner ; such detached 
buildings to contain, in all, not more than one hundred and 
fifty boys ; and no one of such buildings to contain more 
than thirty boys. 
Plans, &c., to be Rcsolved, That the trustees be further requested to lay 
lature^""^ ^^'^" the plaiis and estimates provided for in the preceding 
resolves, before the legislature at its present session. 

Approved October 28, 1859. 

Chan. 112 Resolves for the purchase of a vessel for the use of the 

' NAUTICAL branch OF THE STATE REFORM SCHOOL. 

GoTernor to ap- Resolvcd, That tlic govcmor, by and with tlie advice and 
mtsionVrf to°'"" couscut of thc couucil, bc authorized to appoint three com- 
purchase vessels, jniggioners, who shall be empowered to obtain by gift or pur- 
chase and to equip a good ship, suitable for the purposes of 
the nautical branch of the state reform school ; and to pro- 
vide in such ship accommodation for a number of boys not 
exceeding one hundred and fifty, and for the requisite 
officers ; and report to the governor and council a suitable 
position for such ship. And the said commissioners shall be 
also empowered to obtain by gift or purchase, and to equip 
a small vessel, fitted to serve as a tender to the school-ship, 
for the purpose of exercising the boys at sea. 
Powers, &c.,- Resolued, That the said commissioners shall have power 

accounts. ^^ makc all contracts and agreements necessary for the pur- 

poses mentioned in the preceding resolve : and said commis- 
sioners shall present all their accounts to the governor and 
council, to be by them audited and allowed, from time to 
time, as they deem just. 



1859.— Chapters 118, 114. 649 

Resolved, That for the purpose of defraying the expenses $20,000 appro- 
to be incurred under the preceding resolves, the governor p""''*'^' 
be, and he hereby is authorized, by and with the advice and 
consent of the council, to draw his warrants upon the treas- 
urer of the Commonwealth for the necessary sums of money, 
not exceeding in the whole, twenty thousand dollars ; which 
amount is hereby appropriated therefor. 

Approved October 28, 1859. 

Resolve in relation to a statue of horace mann. Chap. 113 

Resolved, That full consent and permission upon the Erection author- 
part of the Commonwealth, is hereby given to the applica- '''■''^■ 
tion of S. G. Howe, Robert C. Waterston, George 8. Bout- 
well, George B. Emerson, Alpheus Crosby, E. Edmunds, 
and Josiah Quincy, Jr., to set up a statue of the late Horace 
Mann upon any suitable spot within the state house grounds, 
which may be approved by the commissioners of the state 
house, and the chairman of the joint standing committee on 
the state house upon the part of each branch of the gen- 
eral court : provided, that the same be done without expense Proviso. 
to the Commonwealth. Ap^yroved October 28, 1859. 

Resolve on the petition of john p. Andrews and george Q/i^p \\4: 

ANDREWS, trustees. -' * 

Resolved, For the reasons set forth in said petition, that Trustees author- 
John P. Andrews and George Andrews, of Salem, in the *eftate" ^ 
county of Essex, be, and hereby are, authorized and em- 
powered to sell and convey, at public or private sale, and 
on such terms as they shall think expedient, a certain lot of 
land situate in Salem aforesaid, and bounded as follows. Location. 
viz. : north-easterly on Boston Street, there measuring fifty- Boundaries, 
six feet three inches ; south-easterly one hundred and twenty- 
seven feet three inches ; north-easterly again four feet, and 
south-easterly again one hundred and eighty-seven feet to 
land formerly of Phipps Munroe ; south-westerly on Nor- 
man's rocks pasture, so called, sixty-nine feet four inches ; 
north-westerly on land formerly of the heirs of Mary John- 
son, three hundred and three feet six inches, a twelve feet 
way being reserved to be used in common between said 
Munroe'sland and the land herein described, being the same 
estate conveyed by deed of James Bott to Nancy Andrews, 
recorded in the Essex registry of deeds, in book three hun- 
dred and seventeen and leaf one hundred and fifty-five ; 
and to execute good and sufficient deeds thereof, free and 
discharged from all trusts ; and to hold the net proceeds of 
the sale of said estate subject to the same trust and uses as 
the original trust, referred to in said petition. 

Approved November 12, 1859. 



650 1859.— Chapters 115, 116, 117, 118, 119. 

Chan 115 Resolve in favor of luther stowell. 

$60.50 allowed Rcsolved, That there be allowed and paid from the treas- 
whiirsFck'^' iiry of the Commonwealth to Luther Stowell, the sum of 
sixty dollars and fifty cents, to defray the expenses of liis 
late sickness. while a member of the general court. 

Approved November 29, 1859. 

Chop. 116 Resolve for the payment of the committee on the revisiok 

^ OF THE STATUTES. 

Compensation Resolvecl, That thcrc be allowed and paid out of the 

and mileage. trcasury of the Commonwealth to each member of the com- 
mittee appointed to examine the Report of the Commissioners 
on the Revision of the Statutes, the sum of four dollars for 
each and every day's actual attendance at the meeting of 
said committee in the recess of the general court, and two 
dollars for every ten miles travel from their respective places 
of abode to the place of the sitting of the said committee, 
once during its session, and that the committee on the pay 
roll make up mileage and attendance of the members 
Actual attend- accordinglv. Actual attendance under this resolve, shall 

ance, what to. ,,'=*', j^ i± i • j?j.i 

Include. uiclude cvery day oi attendance upon sessions or the com- 

mittee, Sundays, days of adjournment not exceeeding two 
days at any one time, and of sitting on sub-committees dur- 
ing sessions of the general committee, and sickness during 
the session. Approved December 10, 1859. 

Chap. 117 Resolve in relation to salaries of certain officers. 

Increase of saia- Rcsolved, That chaptcr forty-six of the resolves, and 

wd'of^'griJuN chapter sixty-four of the acts of the present year, relating to 

ture and assistant the salarics of ccrtaiu officers, be construed to take effect 

to take effect. from aud after January first, eighteen hundred and fifty-nine, 

in accordance with the appropriations for the same provided 

in the act of eighteen hundred and fifty-nine, chapter two 

hundred and seventy-two. Approved December 10, 1859. 

Chap. 118 Resolve in relation to the nautical branch of the state 

reform school. 

$3j00o additional Resolved, That the commissioners appointed under au- 
thority of chapter one hundred and twelve of resolves of the 
present year, for the establishment of the nautical branch of 
the state reform school, be authorized to expend a sum not 
exceeding three thousand dollars in addition to the sura 
heretofore allowed. Approved December 14, 1859. 



to be expended. 



CAop. 119 



Resolve fixing the compensation of the officers and members 
OF the legislature at the present session. 

Compensation. Resolvcd, That there shall be allowed and paid out of the 
treasury of the Commonwealth, to each member of the legis- 



1859.— Chapters 120, 121. 651 

lature, for each and every day's actual attendance, the sum 
of four dollars. It shall be the duty of the committee on the Actual attend- 
pay-roll to certify, upon the written statement of members, ged^ '° 
to the treasurer of the Commonwealth, the number of days 
of each member's actual attendance, and such written state- 
ments of members shall be preserved in the office of the 
treasurer. The president of the senate and speaker of the President and 

. in -Till speaker, clerks 

house 01 representatives shall receive double the compensa- and chaplains. 
tion above provided for senators and representatives. There 
shall be paid to the clerks and chaplains of the senate and 
house of representatives, a like sum as is now paid them, by 
the provisions of chapter second of the laws of eighteen hun- 
dred and fifty-eight ; said sum to be paid on and after the 
completion of all duties required of and to be performed by 
them and their assistants at the present session, and to be in 
addition to their annual salaries. Actual attendance, under Actual attend- 

T p 1 ance what to 

this resolve, shall include every day or attendance upon ses- include, 
sions of either house, Sundays, days of adjournment and of 
sickness during the session, and attendance on committees ; 
but no allowance shall be made for attendance after the 
fifteenth day of December. Approved December 16, 1859. 

Resolve for the relief of certain military companies. Chap. 1 20 
Resolved, That there be allowed and paid by the Com- Expenses of 
monwealth the amounts actually paid by the several military statlf^enclmp- 
companies for the transportation of their officers, non-com- ™^°' 
missioned officers, musicians and privates, and their camp 
equipage and luggage to and from the state encampment at 
Concord, under the orders of the commander-in-chief, over 
the" several railroads. The accounts therefor to be audited 
by the adjutant-general, and paid to the captains of the 
several companies ; and the governor is hereby authorized 
and required to draw his warrant therefor. 

Approved December 16, 1859. 

Resolve relating to Charles river and warren bridges. Chan. 121 
Resolved, That there be allowed and paid out of the $2,100 allowed 
Charles River and Warren Bridges fund, a sum not exceed- for'maintenance 

1 1 iiinnni r. ^^'^ repairs be- 

ing two thousand one hundred dollars, lor the purpose of tween ist janu- 

paying such claims as may be approved by the auditor, for May^°*^ ^^''^ 
the maintenance and repair of said bridges between the first 
day of January and the nineteenth day of May of the pres- 
ent year. Approved December 20, 1859. 
4 



652 1859.— Chapters 122, 123, 124, 125. 



Resolve in relation to repairs upon charles river and war- 
ren BRIDGES. 



Chap. 122 

$1,000 allowed Resolvcd, That there be allowed and paid out of the 
or repairs. Chai'les Rlver and Warren Bridges fund, the sum of one 

thousand dollars for repairs, and one hundred dollars for 
$100 for inciden- incidental expenses upon said bridges, incurred since May 
a expenses. ^^^^ nineteenth, of the present year. 

Approved Decemher 20, 1859, 

Chan 123 Resolve for the compensation of the joint special committee 

^ ' APPOINTED UNDER CHAPTER FIFTY-TWO OF RESOLVES OF EIGHTEEN 

HUNDRED FIFTY-NINE. 

Balance allowed Resolvcd, That tlic balauco of appropriation made in 
Maine lauds. cliaptcr two liuiidred and seventy-two of acts of the year 
eighteen hundred and fifty-nine, to carry out the provisions 
of chapter fifty-two of the resolves of the present year, be 
allowed and paid to the committee appointed under that 
resolve, for services rendered and money expended by them. 

Approved December 20, 1859. 

Chan. 124 RkSOLVE for the payment of the COMMISSIONERS FOR REVISING 
^ ' AND CONSOLIDATING THE GENERAL STATUTES OF THE COMMON- 

WEALTH. 

$20,000 addi- Resolved, That there be allowed and paid to the commis- 

tional allowed. . • n i i ^ • n ji i f> ii 

sioiiers appointed under chapter nine ol the resolves oi the 
year one thousand eight hundred and fifty-five, to revise the 
general laws of the Commonwealth, the sum of twenty thou- 
sand dollars in addition to the amount already paid ; the 
same to be divided among themselves as they may agree, 
and to be in full for their services and all expenses incurred 
by them for assistance. Approved December 21, 1859. 

Chat) 1 25 Resolve for the pay op the clerk, door-keepers, messengers 

^ * AND pages of the joint SPECIAL COMMITTEE ON THE REVISION OF 

THE STATUTES. 

$1,150 to clerk. Resolved. That there be allowed and paid out of the 
treasury of the Commmonwealth, to the clerk of the com- 
mittee appointed to examine the report of the commissioners 
appointed to revise the laws, the sum of one thousand dol- 
lars for his services as clerk, and the additional sum of one 
hundred and fifty dollars for his further services in finishing 
$4 per day to tlic jouriial and index ; and that there be paid each messen- 
messengers, &c. g^j, ^j-^j^ door-kccpcr four doUai's per day, and to the pages 
pages.^^"^ *^ ° two and a half dollars per day, while in attendance upon 
said committee. Approved December 21, 1859. 



1859.— Chapters 126, 127, 128. 653 

Resolve in relation to certain property held by the com- Qf^ap. 126 

MONWEALTH UNDER A MORTGAGE FROM NORMAND STILES AND 
PHEBE B. STILES. 

Resolved, That the treasurer and receiver-general be, and J^^asurer to^d^- 
he is hereby authorized to dispose of and sell the whole monweaith's 
interest of the Commonwealth in and to the estate conveyed '"'"««'• 
in mortgage to John Mills, as treasurer of the Common- 
wealth, by Normand Stiles and Phebe B. Stiles, wife of said 
Normand, as appears by their deed dated December thir- 
teenth, eighteen hundred and forty-three, and recorded with 
Hampden deeds, book one hundred and twenty-two, leaf three 
hundred and seventeen, and to execute and deliver deeds of 
the same, under the seal of the Commonwealth : provided. Proviso. 
that the terms of such sale shall be approved by the gov- 
ei^-lior. Approved December 21, 1859. 

Resolve concerning the state library. Chap. 127 

Resolved, That there be allowed and paid to the librarian «5«o auowed ^^ 
and trustees of the state library, a sum not exceeding hve books. 
hundred dollars, to be expended in the purchase of law 
books, said sum to be reckoned a part and in anticipation of 
the annual appropriation for the year eighteen hundred and 
sixty in aid of said library. Approved December 21, 1859. 

Resolves providing for the erection of certain buildings QJiff^^ 128 

FOR THE state REFORM SCHOOL. ^ 

Resolved, That the trustees of the state reform school Trustees^ t^o^re- 
for boys, be, and they hereby are authorized to re-construct uon ome buud- 
so much only of the buildings destroyed by the late fire as 
constituted the first building erected for and occupied by 
said school, to re-arrange the same for the accommodation 
of the inmates in classes of not more than fifty boys each, 
and to provide sufficient precautions against fire ; the whole 
expense therefor not to exceed eighteen thousand dollars. 

Resolved, That the trustees aforesaid, are also hereby To^re-arrangeand 
authorized to re-arrange and to enlarge the Peters house p"terfhouse. 
and the farm house, so called, belonging to said school, at 
an expense not exceeding six thousand dollars, and to con- 
struct one detached house upon said farm at a cost not 
exceeding six thousand dollars : provided, that^ the said Proyiso. 
houses shall be arranged for the accommodation of not more 
than thirty boys in each. 

Resolved, That a sum of not more than thirty thousand $30,000 appro- 
dollars be, and the same is hereby appropriated for the pur- p"'^''^^- 
poses aforesaid. Approved December 21, 1859. 



654 1859.— Chapters 129, 130, 131, 132. 



Chap. 129 



Resolves in favor of james russell and daphne f. crane. 

S400 to wife of Resolved, That there be allowed and paid out of the 
James Russell, treasurj of tlie Commonwealth to Lydia Russell, wife of 
James Russell, a member of the house of representatives, 
the sum of four hundred dollars, being the amount to which 
he would be entitled for actual attendance during the whole 
of the present session. 
$427 additional Resolved, That there be allowed and paid out of the 

to widow of Wm. o 1 r-< 1 \ T-viT-i/~< p 

s. Crane. trcasurj 01 the Commonwealth to Daphne h . Crane, oi 

Berkley, the sum of four hundred and twenty-seven dollars, 
in addition to the sum already paid, as compensation for the 
services and the expenses of the last sickness of William S. 
Crane, deceased, late a member of the house of representa- 
tives from district number twelve of the county of Bristol. 

Approved December 22, 1859. 

Chap. 130 Resolve relating to attendance op members of the legis- 
lature. 

Two days in each Rcsolved, That cach member of the legislature living at 
for travel. too great a distance from the capital to allow time for going 

to and returning from his home out of the regular hours of 
legislative business, be allowed two days in each month of 
the session, for that purpose, provided he has actually 
occupied that amount of time in so going to or returning 
from his residence, and that he be paid for the same. 

Approved December 22, 1859. 

Chap. 131 Resolve for the relief op john p. bass, private in company h, 

"' TENTH REGIMENT OF MASSACHUSETTS VOLUNTEER MILITIA. 

injuries. ''^ °^ Resolved, That there be paid to John P. Bass, private in 
Company H, tenth regiment of Massachusetts volunteer 
militia,- the sum of seven hundred and fifty dollars for his 
relief, because of the loss of his leg from accident while in 
the actual performance of his duty as a soldier. 

Approved December 23, 1859. 

Chap. 132 Resolve for the payment of expenses attending the repeti- 
tion OF the oration of MR. EVERETT ON THE INAUGURATION OF 
THE STATUE OF DANIEL WEBSTER. 

$200auowed. Resolved, That there be allowed and paid from the 

treasury of the Commonwealth a sum not exceeding two 
hundred dollars, to defray the expenses attending the deliv- 
ery of the honorable Edward Everett's oration before the 
legislature, upon the inauguration of the statue of Daniel 
Webster. Approved December 23, 1859. 



1859— Chapters 133, 134, 135, 136, 137. 655 

Resolve for compensation of watchmen for services per- /^/,/y^ 1 QQ 

FORMED AS MESSENGERS. fillip. OO 

Resolved, That there shall be allowed and paid out of the $ioo for services 
treasury of the Commonwealth, to each watchman of the sen^t'.'^"'"""'" 
state house, the sum of one hundred dollars, in full compen- 
sation for all services performed as assistant-messengers 
during the session of the committee of revision of the statutes, 
and the extra session of the legislature, the same to be in 
addition to the annual salary. Approved December 23, 1859. 

Resolve for the compensation of the committee on flowage Hhfjyt 1 S4 

OF lands. i ' 

Resolved, That there be allowed and paid out of the Appropriation ai- 
treasury of the Commonwealth, to the committee appointed ^°''"*- 
under chapter forty-seven of the resolves of eighteen hun- 
dred and fifty-nine, the sums appropriated for compensation 
and expenses of said committee ; the same to be paid on the 
receipt of the chairman of the committee, and to be in full 
for all services and expenses incurred by the said committee. 

Approved December 23, 1859. 

Resolve in favor of maria t. benson. Chap. 135 

Resolved, That there be allowed and paid out of the sioo to widow of 
treasury of the Commonwealth, the sum of four hundred memblr. ^'°'°''' 
dollars, to Maria T. Benson, widow of the late George W. 
Benson, Esquire, late a member of this house and of the , 
committee on the revision of the statutes. 

Approved December 24, 1859. 



Resolve for the payment of the sergeant-at-arms, door- Chan. 136 

KEEPERS, messengers AND PAGES FOR THE PRESENT SESSION. "' 

Resolved, That there be allowed and paid out of the treas- 
ury of the Commonwealth, to each of the door-keepers and Sets! mesl 
messengers, and also to John C. Perry, (who has performed ^^"s^'^^- «'''• 
the duties of messenger,) the sum of four hundred dollars ; 
to each of the pages, two hundred and fifty dollars, in full 
compensation for all services performed ; and to the sergeant- $250 to pages. 
at-arms three hundred dollars for his extra services during 
this session of the legislature. Approved December 2S, 1859. ^eTut^at'araV"' 

Resolve repealing in part chapter fifty-two of the resolves Chan 137 

OF THE YEAR EIGHTEEN HUNDRED AND FIFTY-NINE. ^ ' 

Resolved, That the second, third and fourth resolves of Forfeitures for 
chapter fifty-two of the resolves of eighteen hundred and &°c" 'rrS'' 
fifty-nine, being " Resolves to enforce payment of debts due "'^^"^^^ ' 
to the Commonwealth on account of sales of the public 
lands in Maine," be, and are hereby repealed ; and that the 



656 1859.— Chapters 138, 139, 140, 

Executive to ad- govemor aiid council be authorized to adjust, compromise 
iTaL*"'^ '""' and finally settle all tlie notes and claims of tlie Common- 
wealth in relation to the Maine lands, on such terms as the 
interests of the Commonwealth may require, and as may be 
just and equitable to the parties interested. 

Approved December 27, 1859. 



Chart 138 Resolve in relation to appending a glossary to the general 
"' statutes. 

Commissioners Resolvcd, That thc commissioners who may be appointed 
to prepareand to cdlt aud publlsh thc gcucral statutes be instructed to pre- 
print. pg^j.Q j^j^(j i^ave printed with the general statutes, a glossary, 
defining and briefly explaining all words and phrases con- 
tained in the statutes belonging to any foreign language, 
and the more obscure of such other words and phrases as 
are merely technical. Approved December 27, 1859. 

Chan 139 Resolve authorizing payment of expenses incurred by the 

J ' COMMITTEE ON THE LIQUOR COMMISSION. 

$451 allowed. Resolved, That there be allowed and paid out of the treas- 

ury of the Commonwealth, a sum not exceeding four hun- 
dred and fifty-one dollars, to pay expenses incurred in 
reporting testimony and for pay of witnesses before the house 
committee upon the liquor commission. 

Approved December 27, 1859. 



Chmi 140 Resolve relating to the publication of the general 
1 ' statutes. 

oommiBsioners Resolvcd, That thc Hou. William A. Richardson, and 
appointed. ^^^_^ Gcorgc P. Saugcr, be and hereby are appointed com- 

missioners to edit and superintend the printing and publica- 
tion of the general statutes of the Commonwealth, together 
with the constitution tliereof, the constitution of the United 
Duties States, and such other additions as they deem expedient ; 

and that said commissioners examine carefully the copies of 
said statutes, transcribed in the office of the secretary of the 
Commonwealth from the originals, and compare the same 
with the originals, and carefully revise all the proof sheets 
of said statutes ; and said commissioners shall place the 
subject of the chapter or page at the top of each page, and 
prepare marginal notes to the sections of said statutes, and 
nisrSca/^al: an cxact and copious index to the whole; and in the per- 
sistanee. formauce of said work, the secretary of the Commonwealth 

shall furnish such assistance of clerks as the commissioners 
deem necessary Approved December 27, 1859. 



1859.— Chapters 141, 142, 143. 657 

Resolve making an appropriation for warming and venti- Q/i^ip \/^\ 

LATING THE REPRESENTATIVES' HALL. ^ 

Resolved, That a sum not exceeding three hundred S300 allowed. 
dollars be allowed and paid under the direction and approval 
of the commissioners on the state house and the chairman 
of the committee on the state house on the part of the house 
of representatives, to defray the necessary expense of fur- 
ther prosecuting the present method of heating and ven- 
tilating the representatives' hall ; and said sum is hereby 
appropriated. Approved December 27, 1859. 

Resolve authorizing the transfer of certain appropria- Chap. 142 

TIONS for military PURPOSES. 

Resolved, That there is hereby transferred to the account Transfer of 
of military bounties the sum of one thousand five hundred *^'^^='^*^- 
and fifty-five dollars and fifty cents, from any sums appro- 
priated for other military purposes by the seventy-seventli 
chapter of the acts of the present year. 

Approved December 28, 1859. 

Resolve relating to the distribution of the general statutes. Qfiat) 143 
Resolved, That the secretary of the Commonwealth, as g^^etary to re- 
soon as may be after the close of the general court, cause to ceivei,ooo copies 
be printed and bound, and receive for distribution one thou- 
sand copies of the general statutes of the Commonwealth, 
for the use of the Commonwealth, and that he deposit one 
copy of the same in the office of tlie secretary of the Com- 
monwealth, and immediately after their publication dis- 
tribute copies as follows : To each of the commissionei's and 
editors on the revision of the statutes, five copies ; to the 
clerk of the senate for the use of the senate, twelve copies ; 
to the clerk of the house of representatives for the use of 
the house, twenty-four copies ; to the librarian of the state 
library for the use of the library, five copies. To the fol- 
lowing officers and persons one copy each : to the gov- 
ernor, the lieutenant-governor, each member of the present 
council, senate, and house of representatives, the clerk of 
the senate and the clerk of the house of representatives, and 
each reporter in regular attendance upon the sessions of 
either house, the attorney-general, the auditor of accounts, 
the treasurer and receiver-general, the adiutant-general, to 
each ex-governor of the Commonwealth, the judges, clerks 
and registers of the judicial courts, the district-attorneys, 
the county commissioners, the sheriff and keepers of jails, 
the registers of deeds, the keepers of the houses of correction, 
the warden of the state prison, the county treasurers, the 
several cities and towns for the use of such places, to each 



658 



1859— Chapter 144. 



Commissioners 
on publication 
to contract for 
printing, bind- 
ing, &c. 



city or town library in the state, Harvard University, for the 
law library. Harvard University, Williams College, Amherst 
College, Tufts College, the American Academy of Arts and 
Sciences, the Massachusetts Historical Society, the Historic 
Genealogical Society, Museum of Comparative Zoology, the 
Old Colony Historical Society, the Boston Athenaeum, the 
American Antiquarian Society, in Worcester, the Pilgrim 
Society, in Plymouth, the law library societies in each 
county, the judges of the supreme court of the United States, 
the judge of the district court of the United States for the 
district of Massachusetts, the clerks of the courts of the 
United States for the district of Massachusetts, the secretary 
of state of the United States, four copies, the secretary of 
each state of the Union for the use of the state, three copies, 
to the library of congress, three copies. 
♦ Approved Decemher 28, 1859. 

Chap. 144 Resolve providing for the publication of the general 

-*^* STATUTES. 

Resolved, That Hon. William A. Richardson and Hon. 
George P. Sanger, commissioners appointed to superintend 
the publication of the general statutes, be, and hereby are 
authorized in the name and in behalf of the Commonwealth, 
but without cost to the Commonwealth, to contract with 
William White, of Boston, to print, bind and furnish for 
sale to the state, or to any citizen of the state, the general 
statutes of the Commonwealth, with the constitution of the 
state, the constitution of the United States, and all the 
addition to said statutes, prepared by said commissioners 
under tlie direction of the legislature, in a manner in every 
respect equal to the Revised Statutes printed in the year 
eighteen hundred and thirty-six, particularly as to compo- 
sition, press-work, paper and binding; and to keep the same 
for sale in some convenient place in the city of Boston, for 
the term of fifteen years, from the first day of June next, 
at a price not exceeding one dollar and forty cents per copy, 
said contract to provide that the electrotype or stereotype 
plates of said general statutes shall be and remain the property 
of the Commonwealth. A bond satisfactory to said commis- 
sioners shall be given by the said William White to the 
Commonwealth^or the faithful performance of the contract. 
Tiie other provisions of the contract shall be such as the 
said commissioners deem expedient to secure the faithful 
execution of said contract : provided, that none of the exist- 
ing provisions of law, relative to the printing, promulgation 
and distribution of the statutes shall be construed to apply 
to the said general statutes. Approved December 28, 1859. 



Price. 



Bond. 



SPECIAL MESSAGES, 



THE FOLLOWING SPECIAL COMMUNICATIONS WERE MADE BY HIS 
EXCELLENCY THE GOVERNOR, TO THE LEGISLATURE, DURING 
THE EXTRA SESSION ENDING DECEMBER TWENTY-EIGHTH. 

[To the House of Representatives, September 7] 

It is an unpleasant official duty that devolves upon me, 
to present lo the legislature information of the destruction 
by fire, of a large part of the buildings of the State Reform 
School at Westborough. The fire occurred on the morning 
of the 13th day of August, from the intentional act, as it 
appears upon his confession, of Daniel Credan, one of the 
inmates of the school. 

The circumstances of the disaster are fully detailed in 
the report of the Trustees dated the 2Bd day of August, 
and in a communication of the Hon. Simon Brown, chair- 
man of the Board, which T have the honor to transmit 
herewith. 

The loss incurred by the fire is estimated at $50,000. 
The State is greatly indebted to the officers of the insti- 
tution, to the boys of the school, for their good conduct 
and praiseworthy exertions to save the property and the 
buildings from conflagration, and also to tlie fire companies 
and citizens generally, of the neighboring towns ; and to the 
authorities of the county of Worcester, under the direction 
of the Hon. J. S. C. Knowlton, high sheriff, and of the city 
of Boston, for the prompt, efficient, and greatly needed 
assistance rendered by a detachment of police officers, under 
the direction of Lieutenant Whitcomb. 

Of the boys, numbering 572, only two escaped during the 
fire. A portion, about two hundred and fifty, were trans- 
ferred to very comfortable quarters in the new jail at 
Fitchburg. In this transfer sheriff Knowlton and the police 
officers rendered essential and important service. A part of 
the boys, about twenty-five in number, were sent on the 
same night to the jail at Concord. Most of these have been 
received again at Westborough. Those sent to Fitchburg 
still remain. 

5 



660 SPECIAL MESSAGES. 

The fire destroyed the whole of the buildings included in 
the enlargement made in 1852 and 1853, and a small part 
of the original structure. I inclose herewith, a ground 
plan of the premises, showing the portions destroyed and 
those which remain in condition for present occupation. 

In a conference with the Board of Trustees, and the 
Superintendent of the institution, I advised the immediate 
repair of that part of the premises which could be made 
tenantable at small expense, and an arrangement with the 
authorities of Worcester County for the present use of the 
jail at Fitchburg. The officers of the institution failing to 
make an acceptable contract for the use of the jail, a lease 
of a building in Westborough, belonging to Mr. Vinton, has 
been entered into by the Trustees, for the term of one year, 
at a cost of $700. This will afford comfortable accommoda- 
tions for all the pupils not provided for in the school, 
except six or eight boys who remain at Concord. These 
arrangements have necessarily been made without authority 
of law, and the attention of the legislature is called to the 
subject, and also to the necessity of providing for such 
expenses as have beeu thus far incurred. I transmit a 
communication of the Executive Committee of the Board of 
Trustees, setting forth the arrangements which have been 
made, and the present condition of the remaining buildings; 
and a letter of the Attorney-General upon the present legal 
condition of the boys, and the autliority by which they 
should be held and governed. 

It is my duty to call the attention of the legislatvire to the 
necessity of early action upon the subject thus unfortunately 
presented, and also to present some considerations as to the 
system upon which the school has been managed up to the 
present time. 

During the twelve years since its establishment, 2,409 
boys have been received as pupils, and of this number 557 
remained in the school at the close of the year ending 
September 30, 1858. Others had been discharged or were 
apprenticed to proper occupations. Of the number thus 
discharged, a very large proportion, it is believed, have been 
thoroughly reformed, and promise a useful career as citizens 
of the Commonwealth. 

It is not to be expected of boys, brought together under 
circumstances like those that control the selection and 
reception of the pupils of this institution, that all will 
maintain reputable characters. This can scarcely be antici- 
pated of the graduates of any educational establishment. 
The school at Westborough suffers in common with other 



SPECIAL MESSAGES. 661 

institutions, but in far greater degree, of course, from the 
nature of its materials and the impossibility of impressing 
upon a partially depraved nature a full appreciation of the 
individual happiness that springs from a life of rectitude. 
Enough has been done, however, to show that the worst 
natures, vitiated by evil examples, or by want of proper 
instruction and parental authority, may be thoroughly 
reclaimed, and by patient and wise attention to physical, 
mental and moral deficiencies, a good character may be 
engrafted upon a stock of such vicious tendencies, as to 
promise at the outset scarcely a possibility, and no reason- 
able probability, of a healthy and satisfactory result. This 
is another verification of the words of the great Master of 
Nature : — 

" We are never at the worst 
When we can say, this is the worst." 

The advantage to the State of such reformation is two 
fold. It secures what, in its individual character, is seldom 
duly estimated ; tbe contribution to the public wealth of 
an honest, industrious, enterprising and intelligent life of 
nearly forty years' average duration — for the term passed in 
the institution in acquiring information and an established 
moral character is to be included in the useful part of a 
career, as much as the time spent in invention or manu- 
facture of machinery — and at the same time, and by the 
same means, it protects society for a like period, from crimes 
against property, liberty and life. 

These are double advantages which the State and its 
people derive from tbe successful operation of a school like 
that established at Westborough. And if, in such schools, 
success be more doubtful, it must also be said, that when 
attained, it greatly enhances corresponding advantages and 
honors. 

In this respect the State has been well compensated for 
its care and expenditure of money. That there are defects 
m the system upon which it is established, must be 
admitted, and the disaster of the present year offers an 
opportunity for their correction which cannot wisely be 
neglected. Its defects do not present themselves so much 
in the inspection of the school itself, as in examination of 
the principles upon which it is founded and in tracing the 
career of its pupils. 

It is, of course, impracticable to follow out each of these ; 
but, in some instances, its untoward results may be noted 



662 SPECIAL MESSAGES. 

in the condition of other institutions. I have caused 
careful inquiry to be made in some of the institutions of the 
Commonwealth, during the past year, with a view to ascer- 
tain what influence this school produces upon its criminal 
population. The result, I i-egret to say, is not as satisfac- 
tory as could be wished. Of convicts in the State Prison, 
not much less than a tenth part are graduates of the State 
Reform School.* This proportion, were it a necessary result 
of the attempt at reformation, would still be far from 
discouraging the efforts so honorably and sincerely made, to 
reclaim juvenile offenders. But it is not. It is to be 
charged, in my judgment, to defects in the system upon 
which it is organized, and not upon the management of the 
school. In this respect, I am led to believe, it has been 
without serious fault. Nearly thirty of the most intelligent 
citizens "of the Commonwealth, representing all classes and 
all interests, have been, since its establishment, connected 
with the government of the school. So far as I am 
informed, no person, thought to be qualified for the work, 
has declined service when called upon to render it. The 
periodical examinations and reports of the body of Trustees 
have been thorough, and have, from timo to time, 
suggested defects under which the school labored. They 
have employed, in every instance, competent and faithful 
officers and teachers. 

The State Reform School was established upon a Resolve 
approved April 16, 1846, instructing commissioners to 
procure an eligible site, by gift or purchase, for " a manual 
labor school, for the employment, instruction and reforma- 
tion of juvenile offenders," and a sum not exceeding ten 
thousand dollars was appropriated for the purpose. The 
Resolve was passed upon petitions to the legislature, numer- 
ously signed, by judicial officers and other persons repre- 
senting the leading interests of the State. 

The able commissioners appointed under this Resolve 
were aided at the outset, in their very difficult and respon- 
sible task, by the wise and practical suggestions of a distin- 
guished citizen, the late Hon. Theodore Lyman, who had 
given much attention to this subject, and who accompanied 
his suggestions by a donation of ten thousand dollars, upon 
the single condition that the State should contribute an 
equal sum, if the commissioners were of opinion that so 

* The exact number of convicts now in the State Prison, who were 
formerly in the school at Westborough, and whose names have been 
returned to the executive department, is forty-five. The list is believed 
by the officers of the prison not to include all from the Reform School. 



SPECIAL MESSAGES. 663 

much could wisely be expended for this purpose. This 
donation was afterwards increased to the amount of seventy- 
two thousand and five hundred dollars. The name of the 
generous donor was not made known to the public until 
after his death in 1849. It has been often stated by those 
representing this institution, that but for the generous and 
timely donation and bequests of Mr. Lyman, the State 
Reform School could not have been established. He may, 
therefore, justly be honored as its founder, and the legisla- 
ture in selecting a title, would probably have connected his 
name with the institution but for earnest remonstrances of 
those representing his family, who feared that the incorpo- 
ration of the name of any individual with its title might 
possibly lessen the interest of the State in its welfare, and 
tend to a withdrawal of that support and supervision indis- 
pensable to its existence. It was upon this suggestion, 
styled the State Reform School. 

Mr. Lyman had rendered other important services to this, 
his native State. Inheriting an ample fortune from his 
father, who left an honorable reputation as one of the 
founders of the commercial prosperity of Massachusetts, he 
devoted nearly his whole life to public interests. He made 
valuable additions to the literature of the country, as the 
fruits of his early travel, and contributed to its historical 
literature a history of the Diplomacy of the United States — 
at the time of its publication one of the most important and 
learned works upon that subject. He officiated for several 
years as mayor of the city of Boston ; interested himself 
and contributed liberally in her public charities, and to all 
the benevolent enterprises of the State ; held responsible 
positions in its military organizations ; gave attention to the 
subject of agriculture and was an active member of the State 
Horticultural Society, to which he made a donation of 
$10,000. He was long connected with the government of 
the Farm School on Thomson's Island, and served as presi- 
dent of the association for the improvement of prison disci- 
pline from 1847 to the period of his death. During the 
whole of his career, in his early studies and travels in 
Europe, and as mayor of the city of Boston, he manifested 
great interest in the subjects of crime and criminals ; the 
discipline of prisons ; the possible reclamation of offenders, 
and their restoration, especially of those young in crime 
and in years, to the pursuits of useful and honorable citizen- 
ship. It is to the practical and profound studies, the 
patriotic, benevolent and generous nature of such a man, 
that Massachusetts owes the establishment of the first State 



664 SPECIAL MESSAGES. 

institution on the American continent, for the employment, 
instruction and reformation of juvenile offenders. 

This is no slight honor in the history of the State or of 
the founder of the school. But it is still more to the honor of 
Mr. Lyman, that it can be said, as it may without exaggera- 
tion, that every defect exhibited in this institution since its 
establishment, has been occasioned by a palpable departure 
from the eminently wise and practical suggestions made by 
him for its direction and government. 

It will be useful in view of its present condition, to recall 
these suggestions, as they are presented in a reply to inter- 
rogatories of the commissioners for the establishment of the 
School, which is printed in the documents of the house of 
representatives for the year 1847. 

1st. He recommended that the buildings " should have 
iron or stone stair cases, wide passages and easy and obvious 
means of escape in case of fire, especially from the sleeping 
rooms; and the rooms and the parts remote and little visited 
so finished that they cannot be set fire to, as the incendiary 
propensity is very strong in some boysJ^ 

2d. That as to age of admission, boys over 14 years 
should not be admitted. Boys of that age, he says, are 
difficult to manage. If they have been for some time in a 
vicious course, they become hardened, and being bad them- 
selves, are very fit to make otliers bad. The exceptions 
under this rule as to admissions when under fourteen years 
should be in cases of boys that have shown a very depraved 
disposition ; for a few boys of that description in the school 
might retard if not prevent the reform of others and receive 
no benefit themselves. Where the probability is very strong 
that a boy is not susceptible of reformation, he should not 
be admitted, because the probability is greater tliat he will 
do harm to others than that he will derive benefit himself. 
No rule should be made against admission except where the 
offence manifests great and especially deliberate depravity. 

3d. " Commitments should be made by courts alone. 
The institution should be considered a place op punishment 
as well as a place of reform, and as under the authority of 
the State. It will otherwise do little good. If thought to 
be a school and farm, where boys are only obliged to learn 
and work, many boys will not be unwilling to go, and 
parents will not be unwilling to send them. I should 
give no character of disgraceful punishment to the institu- 
tion," he says, " but the character of a State School with an 
established system of rules and government and discipline, 
where [boys are received because they are not fit to be at 



SPECIAL MESSAGES. 665 

large, and where they are kept and trained until they are 
considered fit to be restored to society." 

4th. Provision shoukl be first made for one hundred^ with 
arrangements to extend if required. The nature of his 
view of enlargement is fully expressed in the codicil to his 
will, by which he bequeathed to "his native State" fifty 
thousand dollars " to establish in the town of Westborough 
an institution or institutions for the discipline, instruction, 
employment and reformation of juvenile offenders." 

5tli. " Discharge of boys must be a matter of discretion, 
and the rule should be, that the boy should serve out his 
time, and the exceptions to this rule should be extraordinary 
ones. No power should be used with more caution in public • 
places of punishment, than the power to pardon, for no 
power is more liable to abuse." 

It will be found, I believe, that the contravention of these 
suggestions in the organization and management of this 
school has been the cause of its failure to answer the utmost 
expectations of its friends, and also of its present disaster. 
Other wise recommendations in relation to employments, 
amusements, ventilation, furnishing occupations, and money 
upon discharge, &c., which do not now call for especial 
consideration, are suggested by the founder. 

There has been manifestly a failure in the construction of 
the buildings with reference to the "incendiary propensity" 
which he describes. 

The disregard of his views as to age of admission, has 
been prolific of evil. Scarcely a report has been made by 
trustees which does not refer to this subject. Pupils have 
been rejected by the trustees in the exercise of a high 
discretion, which they must of course be reluctant to exer- 
cise against authorities for commitment, sometimes on the 
ground of idiocy and of deficiency or excess of years. 
Attention has been constantly called to this error by 
trustees. So lately as in the report for 1857, it is said that 
" boys have been sent to the school so young that they were 
better fitted for the nursery than the more rigid discipline 
of the Reform School." There seems in many instances, an 
entire disregard of the consideration, whether the candidate 
for admission had such bodily strengtli as to require greater 
vigilance and more restraint than would be necessary for 
the average number of inmates. This has greatly enlarged 
the number of commitments, a fatal error in the system, 
and rendered the classification which is indispensable to 
reform, impossible. 



666 SPECIAL MESSAGES. 

A like error in the other extreme, has diminished its 
correctional power. It was the wise suggestion of the 
founder that boys over fourteen years of age should not be 
admitted, and boys under that age, who had shown " a very 
depraved disposition," should be made exceptions to the 
general rule of admission. That there has been an entire 
disregard of this view is shown by nearly every report of the 
trustees. The average age of pupils has been for the last 
year over thirteen years, and twelve years and three- 
quarters for the whole term of the existence of the school. 
In the year 1856, tiventy-eight boys were received over 
sixteen years of age. The legislature, upon the urgent 
■ recommendation of trustees, to remedy this evil, arising 
from the inadvertence of magistrates or misrepresentations 
of friends, required that the mittimus should set forth the 
ages of boys committed. Other regulations will be required, 
in my judgment, entirely to remove this difficulty. In the 
very last report of the trustees, the serious attention of 
magistrates is called to the question, " whether, after two or 
three arrests and convictions, and especially, when the boy 
is advanced to the age of fourteen years, he is a fit subject 
for our school ; whether the probabilities of his reform are 
not so small, and his influence on the younger and less 
vicious boys so deleterious as to properly exclude him from 
the institution ? " 

The short term of sentence is another constant complaint 
of trustees running through these reports for twelve years. 
" A long sentence is more effectual than a short one." The 
second report, in 1849, calls especial attention of judicial 
officers to the subject ; and in 1857, the trustees, in com- 
plaining of the large number of boys committed during the 
preceding year, on " short sentences," find it " necessary 
again to remind magistrates that the tendencies of such 
committals is almost wholly to frustrate the original design 
of the founder of the institution." It is probable that the 
large number of boys from the Reform School, now convicts 
in the State Prison, to which I have referred, are the victims 
of this misjudgment as to term of sentence. So far as its 
influence extends, it changes entirely the character of the 
institution, making it one exclusively for punishment instead 
of punishment and reform. It is a departure from the pur- 
pose of the law, as from that of the founder of the school. 
He required that boys should remain until they were " con- 
sidered fit to be restored to society," 

The class of offences for which committals to the Reform 
School were intended to be made, has been entirely changed, 



SPECIAL MESSAGES. 667 

to the detriment of the institution. It was intended as a 
refuge for juvenile offenders against law, who, except for its 
establishment, would have been consigned to prisons and 
penitentiaries, as punishment alone, and without especial 
reliance upon the principles of instruction, employment or 
reformation. That this was its purpose, is readily gathered 
from every record of the institution, the law creating it, the 
reports of commissioners, of trustees, and officers, from the 
instructions of its founder, and the express object and pur- 
pose of its establishment, as suggested by Mr. Lyman, by 
the commissioners who organized it, and also as indicated 
by the liberal donation from the estate of Mrs. Lamb. 
Instead of this, it has been made, to a very considerable 
extent, a means of support for indigent children, and a sub- 
stitute for parental authority. This is seen in a single fact, 
running through every year's experience of the institution. 
Of two thousand four hundred and nine boys, received pre- 
vious to September 30, 1858, one thousand and twenty-eight 
were sentenced for stubbornness ; and if you add to this 
number those sent as vagrants, (143,) and idle and disor- 
derly boys, (107,) it constitutes a class numbering (1,278,) 
more tlian one-half the entire population of the institution, 
from its foundation. It is unquestionably true that the State 
should make provision for indigent, idle, wandering and 
stubborn boys, but it ought never to be done in the State 
Reform School, which was designed for an entirely differ- 
ent and higher purpose, inconsistent with the object of 
mere support, instruction, or family government. Nothing 
could be a greater departure from the expressed views of 
the founder of the institution. It ought to be said, also, 
that every board of trustees, as well as most of the super- 
intendents and chaplains, have called the attention of 
magistrates and legislators to this fact. 

Mo boy should be sent to the school upon the sole charge 
of stubbornness. It would not answer to imprison every 
stubborn man. Stubbornness and firmness are divided 
by very light and sometimes by almost indistinguishable 
lines. It is a charge which is capable of indefinite extension 
and application, and may cover tlie lightest or the most 
serious offences. 

" Obstinacy," said Mr. Burke, " is certainly a great vice ; 
and is frequently the cause of great mischief. It happens, 
however, very unfortunately, that almost the whole line of 
the great and masculine virtues, — constancy, gravity, mag- 
nanimity, fortitude, fidelity, and firmness, — are closely 
allied to this disagreeable quality, of which there is such 

6 



668 SPECIAL MESSAGES. 

just abhorrence, and in their excess, all these virtues very 
easily fall into it." 

I can hardly forbear the citation of a religious authority 
upon the same subject, not wholly disconnected with the 
civil and religious education of our fathers. Sir Thomas . 
More, in denouncing the alleged heresies and setting forth 
the opinions of Tindalle, says : " If anye Prinoe would by 
any lawe or commandement compel hys people to anye of 
those things ; Then Tindalle here plainly techeth thi that 
they may and must stiffely withstand hys tyranny. So that 
fynally concerning obedience, Tyndalle's holy doctrine is : 
that the people should in defence of hys (Tindalle's) false 
heresies not let to disobei, but stubbernly to withstande 
their Prince." 

It is not my purpose to encourage or recognize as necessary 
evils, stubbornness, idleness, vagrancy, or other fault of this 
character, but to call the attention of the legislature to the 
impolicy of so blending them with the institution at West- 
borough as greatly to enfeeble, if not to destroy, its 
capacity for the high duties marked out for it, in the 
philanthropic economy of individual generosity and State 
legislation. 

If any duty is unperformed, any law violated, any right 
infrhiged, let tbe otfender be punished for the act done, not 
for a quality of mind, whicli may color good as well as bad 
actions. I do not appreciate the necessity, at great expense 
and by extraordinary measures, of weeding every element of 
firmness out of the character of the youth of our State. I 
would especially call the attention of the legislature to the 
history of the statutes, in virtue of which this large number 
of commitments has been made, and to the verj wide 
range of offences, covered not only by the same act but the 
same section. It is only when stubbornness leads to a crim- 
inal violation of law for a criminal purpose, that it should 
be recognized by the institution at Westborough. Stubborn- 
ness is less an incentive to crime than ignorance. A man 
may be stubbornly right as well as stubbornly wrong ; but 
ignorance is never an advantage. It is clear that, consid- 
ering ignorance as an incentive to crime, we could not 
imprison every ignorant man or boy : and it is equally clear, 
in my opinion, tbat no boy should be sent to the Reform 
School upon the single charge of stubbornness. If through 
ignorance, idleness, vagrancy, or stubbornness, he has been 
led into crime, let the record of his conviction set forth the 
crime as well as the cause. This was the original intention, 



SPECIAL MESSAGES. 669 

and the -n-ide departure from this purpose has been in many- 
respects fatal to the usefuhiess of the school. 

It was a serious and most important question in the 
inception of this institution, who should be invested with 
authority to sentence criminals to the school for reform. 
" Should commitments be made by courts alone, or by 
others, and if so, by whom ? " asked the commissioners. 
" By the courts alone," answered the founder of the school. 
" The institution should be considered a place of punish- 
ment as well as a place for reform. It will otherwise do 
little good." 

The statute of 1847, approved April 9, authorized sentence 
to the Reform School to be pronounced by any court or 
justice. For the greater part of the time, therefore, there 
liave been eight or ten thousand committing magistrates. 
The third report of the trustees makes especial allusion to 
this subject, (page 4,) in connection with the charge of stub- 
bornness. It came to be understood, as was anticipated by 
Mr. Lyman, that the institution was a school and farm 
where boys were only obliged to learn and to work, and boys 
were willing to go, and parents, because of the want of 
means of support or instruction, on account of family 
reasons, inefficiency of parental authority, or a fear of mis- 
fortune, have been content to send them there. The result 
of this facility of commitment has been, that in a little more 
than a year after its organization, the trustees were obliged 
to give public notice of their inability to receive more boys ; 
and this notice has often been repeated since. The institu- 
tion has been crowded to overflowing, until, in the last 
year, there were at one time six hundred and thirty-nine 
pupils, and an average of five hundred and ninety through 
the year. 

There can scarcely be a doubt, if the views of him who 
so munificently endowed the school had been more closely 
followed, the authority to commit limited to the " courts 
alone," the list of offences for which commitments were 
made reduced to that class tried in courts and punished in 
prisons and penitentiaries, — that the number of boys would 
have been reduced one-half, to their advantage and to the 
reputation of the school. This would have reduced the 
number of pupils to three hundred, which was the number 
contemplated by the law erecting the school. 

In the reconstruction of this institution, it seems impera- 
tive that we should recur to the views of those who were its 
creators ; and following their views, guided by the light of 



670 SPECIAL MESSAGES. 

twelve years' experience, it may happen that as much of 
good as evil will arise from the disaster of tlie last month. 

It seems to me that it is clearly impolitic for the Com- 
monwealth to re-establish the school upon its present 
system. It will be far better to return to the ideas upon 
which it was founded, the correctness of which has been so 
completely shown in the experience of the past ; especially 
should we regard the necessity of bringing it, so far as num- 
bers are concerned, to the "moderate and limited scale" 
suggested by Mr. Lyman. Not more than two hundred boys 
should be brought together in one building; and that should 
be so constructed as to admit of a perfect classification as 
regards instruction, amusement, employment, and also tem- 
perament, propensity and character ; it should be sucli as to 
admit of entire separation and isolation, if necessary, for 
incorrigible boys. The annual expenses of the institution 
can be greatly reduced by the introduction of a greater 
variety of employments, and secure both to the public and 
to the pupils more certain and important advantages than 
have been yet received from the institution. 

The present time affords a favorable opportunity for the 
consideration of the subject of nautical scliools. In the 
great national interest of commerce, in which Massachusetts 
ranks as a pioneer, and still maintains an honorable position, 
no greater evils are experienced than those which arise from 
scarcity of American seamen. In our ships employed in 
foreign trade, it is stated upon high authority, that not more 
than one-fifth or one-fourth of the seamen are Americans.* 
Other nations are making great exertions to increase the 
number of efficient seamen. England pays them liberal 
l^ounties on entering her service, and France has encouraged 
this branch of her maritime interests, by paying a bounty 
equal to twenty-five per cent, to those employed in her fish- 
eries. In our own country, sea service, one of the most 
important to which men can be called, either as it regards 
the prosperity of the country or the honor of its flag, receives 
no favor from government, alike to the detriment of com- 
merce and the strength of the navy, which is in men rather 
than in ships or engines of war. American seamanship, 
in contradistinction from other national vocations, fails to 
maintain its reputation and its capacity. The fisheries, the 
early and prolific nursery of American seamen, are rapidly 
declining, and upon the threatened withdrawal of the existing 

* Memorial of Robert B. Forbes, Esq., to Congress, on the subject of 
Floating Schools for the education of seamen. 



SPECIAL MESSAGES. 671 

light bounty, will fail long to contend against English and 
French competition. There is no institution of tlie general 
government in which young men are made seamen. No 
State has entered upon this^duty; and unlike every other 
calling, there is no opportunity, except in a single school of 
this character in the city of Baltimore, for those who desire 
to become educated seamen. 

Will it not be wise for the legislature to consider the 
expediency of making some provision of this character, for 
the surplus energy and intellect of its misdirected youth who 
now are led to criminal courses, and end with the life of the 
convict ? 

Americans love the sea. They ai-e, as it was said by the 
first Napoleon, the best sailors in the world. No career 
offers a more certain and liberal compensation for intelligent 
enterprise. There is no surer avenue to individual and 
national prosperity, than that which lies in the direction of 
an extension of commerce. It is a rational substitute for 
the barbarian filibusters of the age. We want commerce 
and not dominion. To maintain commerce, we must obtain 
seamen. The romance of a depraved youth generally leads 
him to the sea. His readings are from the pages of Defoe, 
Cooper, Byron, Marry att and Falconer, whose glowing por- 
traitures have drawn from the hearth-stones of inland homes, 
as well as from city haunts, in times past, the best or the 
wildest of their sons. The terrible disasters that occur at 
sea, which have engulfed so many of our people, are caused 
or increased in too many instances, by the scarcity or incom- 
petency of seamen. Bad seamen make inefficient officers ; 
and good seamen render it impossible that incompetency 
shall maintain the highest position on the quarter deck. Is 
it not practicable to turn, therefore, something of the excess 
of vicious youth, to pursuits so congenial to many, and 
which will minister so directly to their own advancement in 
honorable courses of life, — to the enlargement of our com- 
merce, — to the security of ocean travel, — to the prosperity 
of the people, — the extension to other lands of the principles 
of American liberty, and to the honor of the American flag? 
A vessel of seven hundred tons would accommodate, I am 
informed, two hundred and fifty boys. It could be purchased 
for this purpose for $5,000 or 88,000. It is not impossible 
that a condemned government ship, in every respect suitable 
for this purpose, could be obtained at a favorable opportunity, 
from the General Government, which could hardly fail to 
favor a sale of an unseaworthy ship of the line, for such an 
object, at a reasonable cost : and it is probable that in a 



672 SPECIAL MESSAGES. 

period of greater commercial prosperity than the present, 
those engaged in tlie merchant service would liberally con- 
tribute in aid of an enterprise of this kind. Boys could be 
received on board ships, of a riper age than at Westborough, 
A more stringent discipline could be enforced, and good 
conduct and rapid advance in study, be rewarded by pro- 
motion to honorable ofhces and duties on board ship. At 
the age of fifteen or sixteen years, after study and practice 
of one or two years, tliey would be received in the merchant 
service at wages, and as educated seamen, have opened to 
them profitable and respectable courses of life. 

If the legislature should hereafter, upon due investigation, 
and upon proper aid rendered by other parties interested, 
think it expedient to enter upon a limited experiment of this 
character, to Massachusetts would belong the honor of hav- 
ing established the first State Reibrni School for Boys ; the 
first State Industrial School for Girls, and the first State 
Nautical School for educating seamen. 

There is one consideration that enforces upon the legisla- 
ture a liberal view of the necessities of the State Reform 
School at Westborough, as regards appropriations and expen- 
ditui'cs, though I can entertain no doubt that in this, as in 
all benevolent enterprises, the legislature will maintain the 
high character of the State for a generous providence in 
behalf of the unfortunate. 

It is stated in the second report of the trustees, that in 
addition to the sum of -f 12,500 given by the then unknown 
donor, with which the entire farm had been purcliased, they 
liad received from the same source ten thousand dollars 
upon condition that the State should pay an equal sum. 
This was paid and invested " according to the conditions 
prescribed by the giver as a permanent fund," the income 
of which was to be expended for the benefit of the school. 
In the third report, after the decease of the donor, it is 
announced that by his will, he left the sum of <"$50,000 in 
addition to his former donations, as a legacy to the institu- 
tion — making ^72,500. " Twelve thousand five hundred 
dollars," it is stated, " were employed in purchasing the 
two farms on which our establishments are located ; and the 
remaining sum of sixty thousand dollars, which includes 
the ten thousand already received and invested, will, in 
accordance ivith the directions of the testator, be invested as 
a permanent fund, the income of which is to be used at the 
discretion of the Trustees," to promote the prosperity of the 
institution. 



SPECIAL MESSAGES. 673 

It does not appear from the language of the codicils that 
the bequest was coupled with this condition, but there can 
be no doubt that such was the intention of the testator, and 
such the understanding of the representatives of the insti- 
tution. When the enlargement was made in 1853, as it 
appears by the seventh report, the expense, amounting to 
S54,752, was " met by an appropriation from the Lyman 
Fund of $50,000, leaving but $4,752 to be provided by the 
legislature. There can be no doubt that this appropriation 
was justified by the terms of the will, and as little, I sup- 
pose, that it was different from that intended by the testator, 
or anticipated by the trustees that received it in behalf of 
the State. The buildings, included in the enlargement, 
having been erected from the Lyman Fund, and now 
destroyed by fire, it will appear, — if the legislature shall 
decline appropriation for the restoration of the school upon 
a safer foundation, — that the State, by an enlargement not 
contemplated by the founder, and an appropriation of his 
bequest not anticipated nor intended by him, as his purpose 
was interpreted by those who received his directions, having 
expended in a fruitless work the proceeds of his philanthropic 
generosity, is disinclined to replace from its own treasury 
an amount equal to that lost to the Lyman Fund by the 
enlargement and the late conflagration. I trust that will 
not be the conclusion of the legislature, but that, with wise 
liberality, and wisdom enlarged by experience, this first 
and greatest work of any State for tlie reformation of juvenile 
offenders will be placed upon a more permanent foundation, 
with enlarged opportunity and power for the full completion 
of its beneficent and patriotic purpose. 

[To the Senate, September 7.] 

By an Act of the legislature, approved on the fifth day of 
April, 1859, it is provided : " That his excellency the gov- 
ernor, his honor the lieutenant-governor, the secretary of 
the board of education, the attorney-general, the secretary 
of the Commonwealth, the treasurer and receiver-general, 
and the auditor of accounts, be and hereby are autliorized 
to effect for and in behalf of the Commonwealth, a purchase 
of the estate known as the Hancock House, if in their 
unanimous judgment and discretion, after all necessary 
investigation and examination, it be deemed expedient for 
the Commonwealth to make such purchase : provided, that 
not more than one hundred thousand dollars shall be paid 
therefor, and that no alterations in the external or internal 
arrangements of said house be made, otherwise than to keep 



674 SPECIAL MESSAGES. 

the same in good repair while it remains the property of the 
Commonwealth, and that it shall never be used as a resi- 
dence for the governor of the Commonwealth." And 
further, that " If such purchase shall be made, they shall 
communicate the fact to the legislature at the session to be 
held in September next, and shall accompany their commu- 
nication with a recommendation as to the uses to be made 
of said estate in the future, together with an estimate of 
what expense and outlays will be necessary for its repair 
and maintenance." An Act of the same legislature, ap- 
proved April 5, 1859, entitled " An Act establishing the 
Superior Court," section 36, provides that " a law term of the 
supreme judicial court shall be held at Boston, on the first 
Wednesday of January of each year, which term may be 
adjourned from time to time, to such places and times as 
may be most conducive to the dispatch of business and the 
interests of the public ; and all questions of law, whether 
arising upon appeal, exceptions or otherwise, and from 
whichever court, shall be therein entered and determined, 
if the same arise in either of the following counties : Essex, 
Suffolk, Middlesex, Norfolk, Plymouth, Bristol, Barnstable, 
County of Dukes County, or Nantucket, and all questions 
of law in criminal cases." 

This provision of the statutes makes the law term of the 
supreme judicial court emphatically a State law term, and 
may require that other provision for the accommodation of 
the supreme court than that now existing in the county of 
Suffolk should be made by the State. In answer to a com- 
munication addressed to his honor Frederick W. Lincoln, 
Jr., mayor of the city of Boston, inquiring whether, by lease 
or otherwise, suitable accommodations for the law term of 
the supreme court, under the recent Act, could be furnished, 
I am informed that, as far as possible, the city is willing to 
furnish, without charge to the State, the same rooms now 
occupied by the supreme court in transacting the business 
of the county of Suffolk ; but that if the court should hold 
two sessions at the same time, another room cannot be fur- 
nished without enlarging the court house, which is not likely 
to be done at present. 

I transmit to the senate, for the use of the legislature, a 
copy of the correspondence, and also a copy of a report of 
the board of aldermen of the city of Boston upon the same 
subject. 

It is probable, therefore, that, ultimately, the State will be 
required to furnish suitable accommodations for this term of 
the supreme court. 



SPECIAL MESSAGES. 676 

It has appeared to me, upon such consideration as I have 
been able to give this subject, that suitable rooms in the 
capitol may be had by transferring the executive offices of 
the governor and council to the rooms of the Hancock 
House, if it should be purchased by the State, or by appro- 
priating this house to the use of the court, as the legislature 
should deem most expedient. 

If it shall become necessary to provide new accommoda- 
tions for the law term of the supreme court, to be the exclu- 
sive property of the State, — and the State, manifestly, should 
be the exclusive owner of the halls of justice appropriated to 
its use, — I know of no arrangement more for its interest than 
the one suggested. It seems to be the most appropriate use 
to which the Hancock House could be assigned, if the pur- 
chase contemplated by the Act referred to sliould be effected. 

In addition to the spacious, airy and eligible accommoda- 
tions for the court, and the people interested in its proceed- 
ings, it will have an immediate proximity to the* State 
library, which has perhaps a broader foundation for an 
extended and perfect law library than any other collection 
of books in the Commonwealth presents ; and I believe that 
by an expenditure of perhaps one thousand dollars, and a 
special appropriation of two or three hundred dollars to tlie 
purchase of law books in which the library is now deficient, 
out of the sum of twenty-tlu'ce hundred dollars annually 
expended for its enlargement, it can be made one of the 
most comprehensive and perfect law libraries to be found in 
any country. 

I have the honor to inclose a communication from the 
attorney-general, honorable Stephen H. Phillips, upon the 
condition and capacity of the library in this respect. 

I have not thought it proper, however, to take any steps 
whatever, leading directly or indirectly to so important a 
result as the removal of the supreme court from its present 
location, without the assent and direction of the legislature. 
And as the Act by which the commissioners named therein 
were invested with a partial authority of purchase, required 
the unanimous concurrence of all its members, not only in 
the purchase but as to the uses to which it should be appro- 
priated, I have thought it unnecessaiy, being unprepared 
to enter upon the purchase myself for the purpose to which 
it seemed to me best adapted, to order a meeting of the 
commissioners named in the Act. 

Since the adjournment of the legislature, I have learned 
that the immediate transfer of this property will be affected 
by a condition embodied in the will of the late Mr. Hancock. 
7 



676 SPECIAL MESSAGES. 

The provision is as follows, viz. : — " I direct that the man- 
sion house estate in Beacon Street shall not be sold until four 
years after my decease, and that the sale of the same shall 
be advertised in one or more papers in Boston, New York, 
Philadelphia and Washington. I hope the estate may not 
be sold, but retained in the family ; but if sold, I direct that 
if not sold in one lot it be sold in four separate lots, and if 
sold in four separate lots, that the house be sold separately." 

It does not appear, however, that the restriction upon 
the transfer of title materially affects the negotiation on the 
part of the State, if the purchase shall be desired. All the 
heirs to the estate desire its transfer to tlie Commonwealth. 
They will ask nothing in the nature of payment until a full 
title to the estate may be given, and are ready to give, as I 
am informed, such assurances of their purposes and inten- 
tions as may be required of them in the event of a contract 
for purchase being made between them and the Common- 
wealtfi. 

If the pressure of special and very important business 
which engages the attention of the legislature at this session, 
shall preclude the possibility of a fuU consideration of the 
subject at this time, it will be expedient to refer it to the 
next legislature, whicli will have, from the experience of 
the supreme court, under tlie Act of 1859, better means of 
judging of the necessity of a transfer of the court from its 
present location, and the expediency of purchasing the 
Hancock House, with reference to its ultimate establishment 
there or at the capitol. 

[To the Senate and House of Representatives, September 7.] 

I have the honor to transmit for the information of the 
senate and house of representatives a copy of a general order 
from the military department of the government, providing 
for an encampment of the volunteer militia of the Common- 
wealth, in full force, at Concord, near the ancient battle 
ground, on the 7th, 8th and 9th days of September, instant. 
It will be, as I am informed, the first encampment of the 
entire military force of any State of the Union in time of 
peace. It will embrace the volunteer militia in active ser- 
vice from every part of the Commonwealth — every division 
being represented in unusually full ranks. 

The camp presents to the legislature, therefore, an oppor- 
tunity that has never before occurred, for examining with 
very great minuteness the actual condition of this arm of 
the public service with regard to its numerical strength, its 
capacity for active duty, its discipline, conduct, equipment 



SPECIAL MESSAGES. 677 

and organization. When so much that relates to the public 
defences depends upon the eflficient organization of citizen 
soldiers, and so large drafts are annually made upon the 
treasury for its support, it becomes important that its actual 
condition and character, in all respects, should be understood 
by those who are charged with the duty of making appropri- 
ations of public money for its maintenance, and enacting 
laws for its regulation and government. Such an opportu- 
nity is now presented at Camp Massachusetts. The infor- 
mation it affords will not be drawn fi'om reports of subor- 
dinate or superior officers, nor from departments, but from 
actual personal observation. 

The camp will represent the substantial condition of the 
service, and the habits and character of Massachusetts citi- 
zen soldiers. Large bodies of men cannot suddenly assume 
habits of life unfamiliar to them, nor successfully maintain 
against the scrutiny of intelligent men a character for 
sobriety, orderly conduct, and manly discipline, which does 
not belong to them. The legislature will see the militia as 
it is, and judge if it be as it should be. The troops and the 
friends of the system ask nothing more than that its true 
character may be known to the legislators and to the people 
of the Common wealtli. 

The review of the line will take place on the morning of 
Friday, the ninth day of September, instant, and I respect- 
fully invite the senate and tlie house of representatives to 
visit the camp on that day, to inspect its condition, to parti- 
cipate in the review of the troops, and to accept such hospi- 
talities as the camp affords. 

A special train will be appropriated to the service of the 
legislature by the liberality of the Fitchburg Railway Com- 
pany, and I am authorized, if the legislature shall accept 
the invitation to be present, to tender, at its pleasure, for 
purposes of escort duty, the services of the Ancient and 
Honorable Artillery Company. 

[To the Senate, September 7.] 

By an Act of the legislature approved April 2, 1859, it is 
provided that the avails of the sales of lands belonging to 
the Commonwealth in tlie Back Bay, shall be paid into the 
treasury, to be held, invested and applied, in accordance 
with the provisions of sundry Acts and Resolves therein 
named ; and after the provisions of said Acts and Resolves 
are complied with, it is further provided that twenty per 
centum of the avails of such moiety remaining shall be [)aid 



678 SPECIAL MESSAGES. 

to such persons as should be, at that session of the legisla- 
ture, incorporated as the Trustees of the Museum of Com- 
parative Zoology ; such payments not to exceed, in the 
aggregate, the sum of one hundred thousand dollars ; and 
upon condition that it shall be made to appear, to the satis- 
faction of the governor and council, that there has been 
secured by subscription, in aid of such institution, in cash 
or bonds of unquestionable security, an amount equal to 
the amount then to be paid to such institution, according to 
the terms of the Act. 

By a subsequent Act approved April 6, 1859, the 
governor, lieutenant-governor, president of the senate, 
speaker of the house of representatives, secretary of the 
board of education, and chief justice of the highest judicial 
court, ex officiis ; and certain individuals named in tlie Act, 
are made a body politic and corporate, by the name of the 
Trustees of the Museum of Comparative Zoology ; with all 
the powers and privileges usually granted to such corpo- 
rations. 

I have thought it to be my duty to inform the legislature, 
that under the provisions of the Acts referred to, the corpo- 
ration authorized has been duly organized, and that, 
including, in accordance with the terms of the Act creating 
the corporation, the sum of fifty thousand dollars heretofore 
contributed to the support and maintenance of the museum, 
by William Gray, the sum of one hundred and twenty-one 
thousand dollars has been subscribed, and will hereafter be 
paid in support of the museum. 

I have also the honor to transmit to the senate for the use 
of the legislature, a copy of the by-laws of the trustees of 
the museum ; a copy of the articles of agreement between 
the trustees of the museum and the president and fellows of 
Harvard College ; a copy of the deed of land, on the part 
of the president and fellows of Harvard College to the 
trustees of the museum, and their successors ; and a list of 
the contributors to the fund subscribed for the support of 
the museum. 

Arrangements have been made in the articles of agree- 
ment, with a view to secure to the public the freest enjoy- 
ment of and access to the museum, consistent with its use 
for scientific and educational purposes. 

Provision is also made for lectures and instruction to 
classes of teachers of the pu.blic schools, to classes of pupils 
in the normal schools in the Commonwealth, and to such 
special classes of students and persons not connected with 
the institutions named in the Act, desirous of availing 



SPECIAL MESSAGES. 679 

themselves of the instruction of the curator, Professor 
Agassiz, and of the advantages of the museum, as may be 
received or invited. 

Ground was broken for the erection of the buildings, on 
the 14th of June last. A contract has been made for the 
construction of a part of the proposed museum, about eighty- 
feet by sixty, composed of brick with fire proof walls and 
floors, at a cost of $41,800. The building is now in 
progress, and may be completed in November of the present 
year. 

[To the House of Representatives, October 3.] 

The legislature passed an Act approved the sixth day of 
April, 1859, entitled " An Act in relation to the Back Bay 
and tlie Public Garden in the city of Boston," for the pur- 
pose of obtaining an adjustment of an imsettled question as 
to the rights of the city of Boston in a strip of land lying 
between Arlington Street and the Public Garden. 

By the provisions of the sixth section of this Act, the board 
of aldermen was required to submit the statute to tlie legal 
voters of the city of Boston for their acceptance or rejection. 
The Act was accepted on the twenty-fifth day of April, 1859, 
and proclamation of the fact was duly made in accordance 
with the terms of the Act by the secretary of the Common- 
wealth ; a copy of which proclamation is herewith trans- 
mitted. 

By the fourth section of the Act, it is provided, that, " for 
the purpose of determining a just equivalent to the city of 
Boston, for the relinquishment hereby made of any rights 
the said city may now have to erect buildings on the strip of 
land on Arlington Street, which was conveyed to the city by 
the said indenture of December eleventh, eighteen hundred 
and fifty-six, the governor of the Commonwealth and the 
mayor of said city shall appoint three commissioners, who 
shall make an award thereon ; and the Commonwealth shall 
convey to the city of Boston such portion of the land or flats in 
the Back Bay, belonging to the Commonwealth, and upon such 
limitations and restrictions as the said commissioners shall 
order and direct, in said award, as such equal equivalent ; 
and if such commissioners shall not be appointed within 
thirty days after this Act shall take effect, the supreme 
judicial court, upon the representation of either party, and 
upon notice to the other, shall appoint such commissioners." 

Acting under this provision of law, the governor of the 
Commonwealth and the mayor of the city of Boston appointed 
three commissioners, honorable Josiah G. Abbott, of Lowell, 



680 SPECIAL MESSAGES. 

honorable George B. Upton, of Boston, and honorable 
George S. Boutwell, of Groton, to consider the subjects 
embraced in tlie section cited and to make an award thereon. 
The commissioners, upon a review of the whole question, and 
a patient hearing of the parties representing the Common- 
wealth and the city of Boston, made an award transferring 
to the city of Boston specified portions of the lands in the 
Back Bay as an equivalent, with other conditions named in 
the Act, for the surrender of its right to build upon tlie strip 
of land between Arlington Street and the Public Garden, 
which award was in accordance with the provisions of a sub- 
sequent Act approved on the sixth day of April, confirmed 
by the governor and council, and deeds of land in accordance 
therewith were delivered to and accepted by his honor the 
mayor of the city of Boston. 

I have the honor to transmit herewith a copy of the award 
of the commissioners, a resolution passed by the council in 
confirmation of the same, and a copy of the deed of land 
delivered to the city of Boston. 

No provision has yet been made by the legislature for the 
compensation of the commissioners who were appointed for 
the adjustment of this controversy. By an agreement with 
his honor the mayor, and by the terms of the award, it was 
determined that the expenses of the arbitration should be 
borne equally by the Commonwealth and the city govern- 
ment, and in pursuance of that arrangement one-half of the 
expenses of the award, have been paid by the city of Boston. 
I have the honor to transmit herewith the account of the 
commissioners, and respectfully request that an early pro- 
vision may be made for the adjustment of tbe unsettled 
balance of their claim. 

By the terms of the Act it was provided that the perma- 
nent Board of Commissioners on the Back Bay should cause 
to be filled, at the expense of the Commonwealth, the piece 
of land between Arlington Street and the Public Garden. 
This was done vs^ithin one month from the rendering of the 
award, at an expense by contract, of twenty-five thousand 
dollars. Legislative action is required, to authorize the 
application to this particular purpose of a portion of the 
funds placed at the disposal of the commissioners, to be used 
for purposes of improvement. 

The compensation of the special commissioners who made 
the award may likewise be properly charged to the same 
account, and accordingly the whole of these expenditures, 
like the others required for the prosecution of the work, will 



SPECIAL MESSAGES. 681 

cause no burden whatever to the ordinary revenue of the 
Commonwealth, 

It may not be improper, in order that the liberal course 
pursued by tlie Commonwealth in regard to this great public 
improvement may be perfectly understood, to refer to tlie 
origin of the controversy, now fortunately adjusted. 

In consideration of the surrender of certain conceded and 
asserted rights not greatly important to the city but materi- 
ally affecting the interests and possessions of the Common- 
wealth, a committee of the legislature, appointed under 
Resolves of 1856, chapter 76, to act with the commissioners 
on the Back Bay, by a tripartite indenture between the 
Commonwealth, the city of Boston, and the Water-Power 
Company, dated December 11, 1856, granted to the city of 
Boston the strip of land lying between Arlington Street and 
the Public Garden, upon which the award of the commis- 
sioners lately appointed was founded. 

The grant of land was not only without conditions, but 
expressly waived all conditions as to its use. And it was 
U})on this fact that the city founded its unquestionable right, 
according to the terms of the grant, to use the land for such 
municipal or building purposes as should be deemed expe- 
dient. 

Yet it is equally certain, that the cession was made on the 
part of the State with an understanding, or in the belief, 
that it would be used only as a part of the Public Garden, 
and not for city buildings or dwellings. It will be manifest 
that the legislature would never have granted to any party 
this piece of land, the key to the whole of its possessions in 
the Back Bay, and separating them from the Public Garden 
and tlie Common, except in the belief that it was not to be 
used for building purposes, but to add to the public grounds 
of the city. 

This is shown not only by the nature of the transaction 
and the position of the land, but in the explicit language of 
the reports of the committee of the two houses of the legisla- 
ture, and of the commissioners on the Back Bay. 

The report of the committee of the legislature has this 
explanation of the grant of land made to the city : — 

" The agreement provides for a new boundary at right angles to the 
Mill-dam, and to effect this jjurpose, (since the city could not alienate any 
portion of the Public Garden,) the State grants to the city a piece of land 
to he added to the Public Garden, of about the same size as that on which 
extended the restriction already mentioned as prohibiting the erection of 
buildings ; and the city in return relieves the Commonwealth from this 
restriction." [Page 9, Senate Document No. 17, 1857.] 



682 SPECIAL MESSAGES. 

The government of the city, standing upon the terms of" 
the grant, claimed unrestricted possession for any purpose 
wliatever, — as it certainly had a riglit to do, — and tlie com- 
missioners awarded, in the consideration of its rights, an 
additional tract of 44,800 feet of land as a just equivalent for 
tlie surrender of the same to the Commonwealth, and its 
dedication to the uses as a part of the Public Garden, and 
the perpetual preservation of the Public Garden itself, 
excepting only the right of placing a city hall thereon. 

The legislature in 1814, granted to the Boston and Rox- 
bury Mill-dam Corporation, the perpetual right of flowage 
over the Back Bay lands. This right covered about two 
hundred and five acres owned by the State, and two hundred 
acres above the riparian line, owned by various parties. The 
whole of this land was subject to the right of flowage, and 
was flowed by the Boston Water-Power Company, which came 
into possession of the rights previously granted to the Mill- 
dam Corporation. The results of the exercise of this right 
of flowage to the city of Boston are thus described in a 
report upon the drainage of the Back Bay, in 1849 : — 

" In fact the Back Bay is at this hour nothing less than a great cess-pool 
into which is daily deposited all the filth of a large and constantly increas- 
ing population. And it is a cess-pool of the worst kind, contrived as it 
were for the purpose of contamination and not relief; for it is an open 
one, and therefore exposed continually to the action of the sun and weather, 
and every west wind sends its pestilential exhalations across the entire 
city." '• A greenish scum many yards wide stretches along the shores of 
the basin as far as the Western Avenue ; whilst the surface of the water 
beyond is seen bubbling like a cauldron with the noxious gases that are 
exploding from the corrupting mass below." [Pages 11 and 12, Boston 
City Document No. 14, 1850.] 

The Commonwealth purchased of the Water-Power Com- 
pany this riglit of flowage, by the release of one hundred and 
two acres of land, and thus extinguisiied the nuisance com- 
plained of, and obtained for itself and tlie riparian proprie- 
tors the right to reclaim the flats with filling of solid earth. 

The Commonwealth has purchased, by surrender of its 
interest in certain flats north of the Mill-dam to the Mill-dam 
Corporation, the freedom of the Western Avenue from tolls 
in May, 1868, if it does not earlier occur ; thus removing by 
its own act, the only toll now remaining upon the roads or 
bridges leading to or from the city. It has, by a most liberal 
plan of avenues and streets, surrendered one-tiiird of its land 
when reclaimed by solid filling to tliis purpose, and by the 
release of other valuable interests to the Water-Power Com- 
pany, secured tlie continuation of the same liberal plan of 
avenues and streets through the lands of that corporation. 



SPECIAL MESSAGES. 683 

It has also made liberal provision for the drainage of that 
part of the city, at its own cost. 

It has appropriated from the revenues that may be received 
for sales of the lands so reclaimed, the sum of $100,000 to 
the erection of the Museum of Comparative Zoology, which 
though it may ultimately become an institution of great 
interest and importance to the whole State, had its origin 
chiefly in the public interest manifested by the city, as 
appears from the fact that of the subscribers to the fund of 
nearly one hundred and twenty thousand dollars in its aid, 
all, with very few exceptions, were citizens or residents of 
Boston ; and of the appropriation from tlie same source — the 
sale of lands — in support of the system of public schools, 
which will amount, it is believed, to a million or a million 
and a half dollars, at least one-tenth part will be paid for the 
support of the schools of tlie city of Boston. 

In addition to these advantages, the territory itself has 
been annexed by legislative act to the city, adding to its 
taxable property whatever may be its value when completed. 

Tbere are few cities exerting such extensive influence 
upon the world, so circumscribed as the city of Boston. 
With an area of little more than three thousand acres, of 
which the city proper has but one thousand three hundred 
and sixty acres, and an increasing commerce and population, 
its confined limits become a subject of consideration as it 
regards the convenience of its people and its relation to other 
commercial cities and States. 

Institutions of government and the habits and capacity of 
the people being tbe same, the relative importance of cities 
is estimated chiefly upon considerations of population and 
territorial extent. 

The capacity of the people of different parts of tlie country 
for product and consumption must be nearly the same, and 
the strength of population is necessarily limited by tlie extent 
of area. 

Such considerations naturally have an influence upon the 
domestic and foreign trade of the city of Boston. The addi- 
tion of a hundred acres — nearly a thirtieth part of its present 
entire area — is therefore an event of consequence, and an 
advantage that is entitled to consideration. 

When that addition consists, as in this case, of property 
like that reclaimed from the Back Bay, made solid by filling 
of the purest earth — capable of sustaining the most substan- 
tial structures, generally without other support than that of 
the earth itself — intersected by spacious streets, and an 
avenue of two hundred and forty feet in width extending in 



684 SPECIAL MESSAGES. 

direct line for a distance of four miles, ornamented with 
public walks and carriage ways, with grass plots and planta- 
tions of trees, — to be adorned hereafter, it is to be hoped, 
by the erection of statues and works of art, and the whole 
surrounded by stately mansions such as improve the most 
favored portions of the city, — it cannot but add to the 
renown of the Commonwealth and the lasting and inappre- 
ciable advantages of its capital city. 

The contractors with the Commonwealth, who have under- 
taken to reclaim these lands by solid filling, are pursuing 
their work with great success, and in a manner that leaves 
nothing to be desired on the part of the State or its pur- 
chasers. 

I am informed by the commissioners that efficacious and 
early arrangements will be made for the sales of land, and 
the completion of this most important public work ; and I 
feel assured that neither the city of Boston nor the people of 
the Commonwealth will have cause to regret the adjustment 
of the difficulty, which for a brief period has interrupted its 
progress, or the liberal plan which has been adopted for the 
management of its landed interests and the improvement of 
the metropolis of New England. 

[To the Senate, October 3.] 

I have the honor to transmit to the honorable senate, for 
the consideration of the legislature, a communication, 
signed by S. G. Howe, R. C. Waterston, George S. Bout- 
well, George B. Emerson, Alpheus Crosby, E. Edmunds, 
and Josiah Quincy, Jr., a committee appointed at a public 
meeting in the city of Boston, respectfully requesting that a 
suitable place be assigned in the State House grounds for 
the erection of a bronze statue of Horace Mann, to be 
procured by general subscription among the people of the 
State. I recommend that this request be granted. Works 
of art, independent of associations of personal character, are 
of the highest public utility. They elevate the popular 
taste and are in themselves a source of instruction and 
rational pleasure. In the controversies of men who midei'- 
take by statutes or institutions of government conformable 
to the genius or necessities of the age in which they live, to 
supply the deficiencies or to correct the errors of the past, 
there is much of tribulation and anguish, for which the life- 
time of those who suffer, offers no adequate compensation. 
Perhaps the thought that most encourages persistent effort 
in great enterprises, in addition to the hope of contributing 
to public welfare, is that of leaving a name worthy to be 



SPECIAL MESSAGES. 685 

remembered in the land's language. Monumental memo- 
rials enable us to repay with grateful and unfailing remem- 
brance such services of great and good men, to minister to 
an honorable and patriotic ambition, and to stimulate every 
generation to a generous emulation of high thoughts and 
magnanimous actions. Far from prompting indiscriminate 
approval of historic character and historic acts, they incite 
constant and intelligent inquiry, and lead multitudes of 
men to conscientious investigation and just conclusions. 

It is well for the age in which we live that the deeds of 
good men are held in constant public remembrance, and the 
State can hardly establish for its people a nobler reputation 
than to show, that with a spirit of their own, they cherish 
the fame of those whose public labors have established 
important public privileges. 

The department of education was one to which the 
founders of the government gave their earliest attention. It 
has received the support of the ablest of every class of our 
citizens, and is now as it ever has been one of the most 
cherished institutions of the people. 

Among the eminent men who have given lives of labor to 
its support, no single life has been more devoted in duty, 
more successful in labor, or of greater value to the Com- 
monwealth, than that of the late Horace Mann. 

His services in the legislature, in which he initiated many 
important measures, as representative of a portion of the 
people in the congress of the United States, his labors in the 
codification of the statute laws, as well as liis enthusiastic 
and wise devotion to the cause of popular education in 
which he may be justly said to have sacrificed his life, have 
drawn to him with remarkable power the affections of the 
people of the Commonwealth, and constitute a character 
that is worthy an enduring public commemoration. 

[To the House of Representatives, NoTember 19.] 

In answer to an Order of the house of representatives, 
bearing date the 24th of October, I have the honor to trans- 
mit such information as the records of the land department 
present, in answer to the following inquiries : 

1. The quantity of lands owned by the Commonwealth in 
the State of Maine. 

2. The portion in any way subject to mortgages or other 
conditions. 

3. The facts elicited by the investigations of the com- 
mittee appointed under chapter 52 of the Resolves of the 
present year. 



686 SPECIAL MESSAGES. 

From the establishment of the land office, January 1, 
1785, to the year of the separation of Maine from Massa- 
chusetts, 1820, the number of acres of land sold in the 
territory now constituting the State of Maine, was four 
millions three hundred and sixty-eight thousand nine 
hundred and seventy, (4,368,970.) 

In the same period there were grants in aid of colleges, 
academies, and for other public purposes, amounting, in 
acres, to one million seventy-four thousand nine hundred 
and twenty-nine, (1,07-1,929,) making a total alienation 
from 1785 to 1820, of five millions four hundred and forty- 
three thousand eight hundred and ninety-nine acres, 
(5,443,899.) 

The amount received in the treasury from these sales, 
from 1785 to 1820, was 1896,281.67. [Report land agent, 
1843, p. 8.] 

From 1820 to 1851, the number of acres sold, of lands 
held in common with the State of Maine, was eight 
hundred eighty-four thousand three hundred and forty-one, 
(884,341.) 

Of the lands held separately by Massachusetts were sold 
in the same period, one million five hundred and eighty -nine 
thousand four hundred and ninety-one acres, (1,589,491,) 
making a total in acres, of two millions four hundred and 
seventy-three thousand eight hundred and thirty-two, 
(2,473,832.) [Report 1851, p. 2.] 

It thus appears from the records of the land department 
that the number of acres sold from the establishment of the 
land office in 1785, to 1851, deducting grants made for 
X public uses, was six millions eight hundred and forty-two 

thousand eight hundred and two, (6,842,802.) The 
earliest reservations for public uses were 340 acres for each 
township. Subsequently, as early as 1790, reservations 
were made of four lots of 320 acres each ; one for the 
support of the settled minister ; one for the ministry ; one 
for schools, and one reserved for future legislative appro- 
priation, making 1,280 acres for each township. In 1832, 
the reservation was established at one thousand acres for 
each township. 

Grants of land have also been made at different periods 
for educational purposes, for support of soldiers of the Rev- 
olution, and for settlers at Madawaska, pursuant to article 
fourth of the treaty of Washington. 

No extensive sale of land appears to have been made in 
1861 or 1852. Sales previously made were confirmed in 
those years by the commissioners, and the amount received 



SPECIAL MESSAGES. 687 

in the treasury for lands was mainly derived from this 
source. The amount received by the treasurer from the 
sale of lands from 1785 to 1820, was $896,281.67.* The 
amount received for sale of lands from 1820 to 1853 was 
$2,032,920. 

By a contract made twelfth March, 1853, and confirmed 
by a deed dated September 1, 1853, a sale of 442,719 acres 
of land, after deducting lots reserved for public uses, was 
made to Clark & McCrillis, for the sum of $260,000, and 
another tract of land described in the same deed, for 
$12,000. Of these sums $123,240 remained unpaid October 
1, 1859. For the security of this sum a lien upon the 
timber cut, and the land itself is pledged by the terms of 
the deed. 

A committee was appointed at the late session of the 
legislature to consider and determine, after investigation 
and personal examination of the land, what deduction from 
this sum could justly be made, without improperly sacrific- 
ing the interests of the Commonwealth. The final report of 
this committee was submitted to the governor and council 
on the 16th instant, and for the information of the house, in 
answer to the last inquiry embraced in the Order of the 
24th of October, a copy of the same is herewith transmitted. 

The report is accompanied by the recommendation that 
the debt now due be reduced by abatement from the sum of 
$141,482.40, to the sum of $84,055.94. 

By a deed bearing date October 5, 1853, this State con- 
veyed to the State of Maine all its remaining interest in the 
lands of that State, including reservations for public uses, 
consisting of about one million two hundred and one thou- 
sand three hundred and twenty-eight acres, for the sum of 
$362,000, of which sum $112,000 was paid in cash, and the 
balance in the scrip of that State. This sale closed up the 
land transactions of Massachusetts in the State of Maine. 

A recapitulation of the facts herein presented will aiford 
an intelligible view of the transactions of the land depart- 
ment. 

From 1785 to 1820 the sales of land In Maine, in acres, was 4,368,970 

Grants for educational and public uses, .... 1,074,929 
From 1820 to 1851 sales of land held in common with 

Maine, (acres,) 884,341 

Sales of land held separately, 1,589,491 

Sale to Clark & McCrillis, 1853, 442,719 

Sale to the State of Maine, 1853, 1,201,328 

Total of lands sold and alienated, acres, . . 9,562,778 
* Report 1843, p. 8. 



688 SPECIAL MESSAGES. 

To the quantity of lands alienated must be added a 
quantity, equal to one thousand acres for each township, 
sold since 1820, which may be estimated at four hundred 
and twenty-six thousand acres. 

From these sales of public lands payments have been 
made into the treasury as follows : 

From 1785 to 1820, |896,281 67 

From 1820 to 1851, 1,998,226 55 

In 1851, $19,420 48 

1852, 15,274 08 

1853, 676,364 94 

1854, 250 00 

711,309 50 



Total receipts, $3,605,817 72 

The only mortgage or lien upon lands or timber now 
existing, is that upon lands and timber sold to Clark & 
McCrillis, consisting of 443,719 acres, reservations excluded, 
held for the payment of the sum of $123,240 and the sum of 
$9,180, and an additional sum of 89,062 due from the same 
parties, secured also by notes. From these sums now 
remaining unpaid, must be deducted whatever amount shall 
be released to the parties named, in consideration of the 
circumstances connected with the original sale. 

For a full statement of the facts elicited by the investiga- 
tions of the committee of tlie legislature and their con- 
clusions thereupon, I have the honor to transmit a copy of 
its final report made to the governor and council, according 
to the provisions of the statute by which the appointment 
was authorized. 

[To the House of Representatives, December 28.] 

A Bill, entitled "An Act for Revising and Consolidating 
the General Statutes of the Commonwealth," has been trans- 
mitted to this department of the government for revisal and 
approval. It embraces the entire body of statute laws here- 
tofore enacted by the coordinate departments of the govern- 
ment, agreeably to the forms prescribed by the constitution 
and laws of this State, with various legislative propositions, 
not yet ripened into laws, adopted at their present session, 
which must, if approved, more or less materially affect the 
different interests of the Commonwealth, so far as they are 
dependent upon or affected by changes in the laws. 

The very important character of this work, as well as the 
unusual circumstances attending its execution, will justify 
at least an explanation of the views upon which I am led to 



SPECIAL MESSAGES. 689 

the approval or disapproval of this vast body of new and old 
statute legislation. 

During the session of 1854, by the provisions of chapter 
68 of the Resolves of that year, a Commission was appointed 
to report " a plan for consolidating and arranging the gen- 
eral statutes of this Commonwealth," An acceptable plan 
of consolidation liaving been reported, a Resolve, approved 
February 16, 1855, autliorized tlie appointment of " three 
able and discreet persons, learned in the law, to be Com- 
missioners for consolidating and arranging the general stat- 
utes of the Commonwealth, which may be in force and 
operation at the time such Commissioners may make their 
final report." 

The Commissioners were authorized, in consolidating and 
arranging the statutes, to omit redundant enactments, and 
those without effect or influence upon existing rights ; to 
reject superfluous words, and condense circuitous, tauto- 
logical and ambiguous phraseology into as concise and com- 
prehensive a form as should be consistent with a full and 
clear expression of the will of the legislature ; and to indicate 
any mistakes, omissions, inconsistencies and imperfections, 
which might appear in the laws to be consolidated and 
arranged, and the manner in which they should be corrected, 
supplied, and amended. 

Subsequent legislation provided that the Commission 
should terminate on the 31st day of December, 1858, and 
that the report should be submitted to the legislature of the 
present year. 

By a Resolve approved February 23, 1859, the Report of 
the Commissioners was referred to a committee of the Senate 
and House, appointed to examine and consider, during the 
recess of tlie legislature, the Report of the Commissioners on 
the consolidation and arrangement of the general statutes, 
" with power to propose such amendments in existing laws, 
as such committee may deem expedient." 

The powers conferred upon this committee admit of very 
different interpretations. It may have been the purpose 
of the legislature to confer the same powers exercised by 
the Commissioners ; a power to propose such amendments 
as .would tend to the just arrangement, consolidation, and 
harmony of the then established laws of the Commonwealth. 
Such certainly was the interpretation given to this statute 
by one department of the government. The revised code, 
from the nature of the Act, must necessarily be passed 
upon ultimately by each of the coordinate departments, as 
one statute ; embracing in a single Act all the legislation 



690 SPECIAL MESSAGES. 

remaining in force and effect from the foundation of the 
Commonwealth. No embarrassment, no difficulty could 
arise in such course of procedure either in the legislative 
or executive department, because each statute thus embodied 
in the consolidated and revised code would have been ap- 
proved at some period or other of our legislative history, by 
all branches of the law-making power ; and the ultimate and 
final approval of the code on the part of the legislature and 
the governor, would relate to the method, manner, and per- 
fection of that " consolidation and arrangement of tlie gen- 
eral statutes of the Commonwealth," which is declared in 
every Act bearing upon this subject, from 1854 to the present 
time, to have been the chief object and purpose of the gov- 
ernment. 

A different and far more liberal interpretation has been 
given to the duties and powers of the committee, and the 
legislature in the exercise of its unquestionable authority, 
with a wisdom which it is not my province or purpose to 
question, has thought it expedient to make various impor- 
tant changes, affecting nearly all the material interests of 
the people, running through the entire code and body of 
laws, with a view not merely to consolidate, arrange and 
harmonize existing statutes, but looking apparently to the 
establishment of a perfect code of laws. 

Tliis vast body of original and proposed statutes, engrossed 
upon upwards of fourteen hundred pages of parchment, has 
been transmitted to me without an intelligible guide to 
direct me to the means of separating proposed from the 
hitherto established Acts of legislation, except by the minute 
comparison of separate parchment rolls with the papers from 
which they are engrossed, and I am required without the 
intervention even of that period of time allowed by the con- 
stitution for the consideration of the lightest Acts of ordinary 
legislation, to approve or to reject in bulk, without discrimi- 
nation or qualification, without mature consideration, and 
almost without reading, the entire body of laws, upon which 
the legislature has been engaged for many months. 

I have not thought it proper — it has not seemed to me to 
be within the province of this department — to take informal, 
unofficial cognizance of the legislative proceedings, or to 
request the transmission of its Acts, except at such times 
and in such manner as should be consistent with its own 
will and pleasure ; neither am I assured upon mature reflec- 
tion, that the transmission of separate chapters of the code 
at the close of the session would materially relieve my 
embarrassment, if such course of procedure were possible 



SPECIAL MESSAGES. 691 

or practicable, which I am compelled to say admits of the 
gravest doubts. But I feel it to be my duty, — alike with 
reference to present leoislation and to the precedent it may 
establish for succeeding legislatures, — to represent to the 
legislature, with the most unqualified and profound respect, 
that there has not beeu preserved such distinction between 
legislative acts heretofore approved by the various depart- 
ments of the government and tlie people, and the new and 
important measures now first presented for approval, which 
the original plan, purpose and policy of consolidation and 
arrangement would seem properly to require ; — nor that 
opportunity given for comparison, examination, considera- 
tion and approval to which a co-ordinate and equal branch 
of the government is entitled, or which the express letter as 
well as the spirit of the constitution secures to the governor 
of the Commonwealth, in the performance of this part of 
his duties. 

" No Bill or Resolve of the Senate or House of Repre- 
sentatives shall become a law and have force as such until 
it shall liave been laid before the governor for his revisal." 

" In order to prevent unnecessary delays, if any Bill or 
Resolve shall not be returned by the governor, within five 
days after it shall have been presented, the same shall have 
the force of a law." — (Const., Chap. 1, Art. 2.) 

It will not be assumed that an Act embracing an entire 
code of laws, established and proposed, is a Bill or Resolve 
in the spirit either of parliamentary law or the constitution, 
or that an Act embracing all the legislative measures of an 
ordinary session of the general court, presented to the gov- 
ernor for revisal and approval at its close, would be a literal 
compliance with the spirit or letter of that clause of the 
constitution to which reference has been made. 

It is not my purpose, nor can I believe it to be within the 
scope of my official duty to dissent from the body of these 
amendments. I cau only express my sincere and profound 
regret, that the legislative action had not been confined to 
the arrangement and consolidation of existing laws as 
originally contemplated, and to acknowledge my apprecia- 
tion of the difficulties and even impracticability of a sepa- 
rate consideration and approval of the several parts of a code 
of laws. 

There are many of these provisions to which, under ordi- 
nary circumstances, I should cheerfully assent ; others which 
I should most reluctantly approve if separately submitted 

9 



692 SPECIAL MESSAGES. 

for revisal, conformably to the provisions of the constitu- 
tion. But I do not think it proper, except upon the most 
imperative considerations, to take any step which shall lead 
or tend to the defeat of the work of revision at the present 
session. The revision is of itself, if well performed, of the 
greatest public importance. It will bring together in a vol- 
ume of reasonable dimensions all the public statutes that 
now lie scattered through many separate volumes, inacces- 
sible to the great mass of the people. 

The general approval bestowed upon the plan of revision 
originally reported, the high reputation of the commission- 
ers, and the assiduous labor they have bestowed upon the 
work, as well as the examination which in the way of official 
duty I have been able to give to it, lead me to believe that 
it will be acceptable to the people, and greatly assist those 
engaged in the administration of law. My profound respect 
for the legislature, as for every body of men charged by the 
people with the high responsibilities of legislators and law- 
makers, confirms me in the hope that the changes now pro- 
posed and embodied in the code submitted for revisal and 
approval may also promote the interests of the Common- 
wealth. Such at least is my expectation and desire, and upon 
such grounds, I should give it a cordial approval, with the 
exception of a single subject upon which I am compelled to 
dissent from the action of the legislature. I refer to the 
change made in the basis of the militia enrollment and 
organization. Some years since, while connected with 
another department of the government, my attention was 
called to this subject, and during the present and past year, 
in the way of official duty, altogether apart from legislative 
considerations, upon petitions for the organization of com- 
panies, it has been necessary that I should examine it with 
renewed care, and it is my opinion that the legislation now 
proposed in the organization and enrollment of the militia 
of this Commonwealth, is plainly in contravention of con- 
stitutional law, and therefore not within the powers granted 
to the legislature. 

In the controversy upon the adoption of the federal con- 
stitution in this, as in other States, very earnest debate 
arose upon the question, what powers were delegated to the 
general government and what were reserved to the States ; 
and the constitution was finally adopted by the requisite 
number of States, with an understanding, that the provis- 
ions afterwards embodied in article tenth of amendments 
should be incorporated into the constitution itself, to wit : 
" The powers not delegated to the United States by the con- 



SPECIAL MESSAGES. 693 

stitution nor prohibited by it to the States, are reserved to 
the States respectively or to the people." The division of 
powers therefore, is perfectly clear so far as this subject is 
concerned. That which is not granted to the general gov- 
ernment nor incident to the powers granted is reserved to 
the States unless expressly prohibited. 

The power to " provide for organizing, arming, and dis- 
ciplining, the militia, and for governing such part of them as 
may be employed in the service of the United States, reserv- 
ing to the States respectively the appointment of officers and 
the authority of training the militia according to the disci- 
pline prescribed by congress," is one of the powers expressly 
conceded to the federal government in tlie first article, 
eighth section, of tlie constitution of the United States. 

The power granted in express terms to the federal govern- 
ment by this section of the constitution, is that of" organiz- 
ing, arming, and disciplining the militia ; " that reserved to 
the States is the " appointment of officers and the authority 
of training the militia according to the discipline prescrib- 
ed by congress." The power to organize includes that of 
determining what classes of persons shall be so orgaiiized, 
and this has been determined by an Act of congress approved 
May 8, 1792, entitled "An Act more effectually to provide 
for the mutual defence by establishing an uniform militia 
throughout the United States." 

The classes of persons which by these provisions of the con- 
stitution and legislation of the United States are to be organ- 
ized, armed, and disciplined, as an uniform militia through- 
out the United States, are, able-bodied, white, male citizens 
of the respective States, resident therein, who arc or shall 
be of the age of eighteen years, and under the age of forty- 
five years. 

It is not, in my judgment, within tlie power of the legis- 
lature to change this basis of enrollment, or enlarge or 
diminish the classes of men embraced in this organization of 
the militia. It is no sufficient answer to say that in chang- 
ing the phraseology of the statute of the United States in 
the enactment of our own militia laws, we still leave public 
officers in the enrollment of the militia, to follow the laws of 
the United States, without committing the people of this 
State to a recognition of distinctions between men that are 
not acceptable. Tlie militia is a national institution. In 
all that pertains to its organization, armament and discipline, 
our laws are but a republication of the laws of the United 
States, for the information and instruction of the citizens of 
this State ; and if in this republication we misrepresent the 



694 SPECIAL MESSAGES. 

fact, we lead them into innumerable and remediless diffi- 
culties and constantly embarrass the administration of our 
own government. 

The assessors are required annually, in the month of May, 
to make a list of persons living within their respective limits 
liable to enrollment, and place a certified copy thereof in the 
hands of the clerks of their respective towns or cities, and 
annually, in the month of May, to transmit returns of the 
militia thus enrolled to the adjutant-general. These re- 
turns, certified by the governor of the Commonwealth, are 
annually transmitted to the president of the United States. 
The militia thus enrolled is liable to be called out at any 
moment, in case of war, invasion, to prevent invasion, to 
suppress riots, or to aid in the execution of the laws of the 
Commonwealth. It would be a public wrong of the highest 
character to mislead, by statutory direction, a public officer 
in the discharge of these duties, and assuredly no provision 
ought to stand as law, unless the legislature intends that 
assessors and other public officers shall be boimd by its 
terms. 

Still less is it to be urged that, assuming a recent decision 
of the supreme court of the United States to be just, cer- 
tain persons are not citizens, and, therefore, their exclusion 
need not be expressed or implied in our re-enactment of 
the militia laws. The statutes of the Commonwealth are 
yet free from the most distant recognition of the doctrines of 
that decision, and I trust may forever so remain. 

For these reasons, believing that the change proposed in 
the basis of enrollment is palpably in contravention of consti- 
tutional law, and cannot be executed by this department of 
the government without an infringement of the constitution, 
which I am sworn to support, I have thought it an impera- 
tive duty to withhold executive approval, and I therefore 
return the Bill to the House in which it originated, that it 
may be re-reconsidered by the legislature conformably to 
the provisions of the constitution. 

Under other circumstances I should not hesitate in a case 
like the present, to act upon my own judgment ; but inas- 
much as a disapproval of the legislative proposition to which 
I have referred imposes upon me the necessity of rejecting 
without discrimination every statute approved by my prede- 
cessors from the foundation of the government and every 
amendment proposed by the present legislature, I have 
thought it to be my duty, not only to give to the subject the 
most serious consideration, but to seek direction from the 



SPECIAL MESSAGES. 695 

high legal authorities which the constitution and laws enable 
me to consult. 

I requested the attorney-general therefore to prepare an 
opinion upon two propositions, which I have the honor to 
transmit to the legislature, and subsequently upon the 
request of the governor and council, the supreme judicial 
court pronounced an opinion upon the same questions, 
which has been transmitted to me by the honorable chief 
justice of that court, and which I have the honor now to 
lay before the two houses of the legislature. These opinions 
are elaborate, learned, and decided. That of the supreme 
court embodies one of the most luminous and learned expo- 
sitions of the relations of the State and Federal govern- 
ments, and of the origin, nature, and purpose of the insti- 
tution of the militia of the United States and of this 
Commonwealth, that judicial history presents. 

It is unnecessary foi"me to ask of the legislature a candid 
consideration of these able State papers. They cannot be 
too carefully considered by legislators or by the people. It 
is unnecessary for me to call the attention of the legislature, 
in view of the rugged paths of national life on which too 
obviously we are entering, to the necessity of maintaining 
the organization of the militia, and of perpetuating the har- 
mony of feeling and interest of its members with the prin- 
ciples and institutions of the government, of which, as 
citizens and soldiers, they are a chief support. Nor is it 
necessary to enlarge upon the expediency, in every con- 
sideration of public policy, of a constant and faithful 
adherence to constitutional obligations. We can present 
"no more reliable evidence of strength than the fact that we 
can maintain our own privileges without invading the rights 
of others ; and for a State inflexibly determined to submit 
to nothing wrong, there is no safer rule of action than to 
ask nothina; that is not right. 



696 SPECIAL MESSAGES. 



Commonwealth of Massachusetts. 

Attorney-General's Office, Boston, | 
December 15, 1859. j 

To His Excellency, Governor Banks : 

Sir, — I have received your request for an official opinion upon the 
following questions relating to the militia, and have carefully con- 
sidered the same : 

The questions are, 

1. Whether the legislature of this Commonwealth can constitu- 
tionally provide for the enrolment in the militia of any persons 
other than those enumerated in the Act of congress, approved May 
8, 1792, entitled, "An Act more effectually to provide for the mutual 
defence by establishing an uniform militia throughout the United 
States." 

2. Whether the aforesaid Act of congress, as to all matters 
therein provided for, and except as amended by subsequent Acts, 
has such force in this Commonwealth, independently of, or notwith- 
standing, any State legislation, that all officers under the State 
government, both civil and military, are bound by its provisions. 

I. The first question requires a consideration of the authority of 
this Commonwealth, and of its legislature, in the "enrollment" of the 
militia within its limits. To determine this, two inquiries naturally 
suggest themselves. 

1st. What rights had this Commonwealth, as a sovereign State, 
over the organization of the militia before the adoption of the federal 
constitution ? 

2d. How far are those rights modified or impaired by the 
constitution of the United States, or the laws made in pursuance 
thereof ? 

Whatever may be the history of the militia system, it must be 
conceded that this Commonwealth, upon the adoption of its constitu- 
tion, in 1780, asserting and maintaining by right of revolution an 
independent sovereignty, claimed as one of its prerogatives the full 
authority to control its own militia in all respects. The carefully 
studied provisions still to be found in the constitution, relative to the 
organization of the militia, and the appointment of officers, indicate 
the interest taken in this most important auxiliary of a free State. 

Const. Mass., Part 2, Ch. II., Sect. 1, Art. 10. 

This article, as well as one almost immediately preceding, (Art. 7, 
concerning the authority of the governor as commander-in-chief,) 
suggests the obvious consideration that a militia system, which had 



SPECIAL MESSAGES. 697 

existed under the previous forms of government, was still to be pre- 
served, and its division into brigades, &c., to be continued, except as 
modified by the provisions of the constitution itself, " until the same 
shall be altered in pursuance of some future laiv." Incidentally, 
therefore, to the sovereignty of the Commonwealth, and conformably 
to the spirit of the constitution, existed the right to provide by law ■• 

for the organization of the militia. This power, so far as not repug- 
nant or contrary to the constitution, pertains to the legislature by 
force of the general delegation of authority contained in part second, 
chapter 1, section 1, article 4. There can then be no doubt that, 
except as to matters specially provided for by the constitution itself, 
the general court, by virtue of that instrument, acquired the most 
ample power and authority " to make, ordain and establish all 
manner of wholesome and reasonable laws " relative to the organ- 
ization of the militia. The oi'ganization of the militia includes not 
merely the division of the citizens subject to military duty into 
brigades, regiments and militaiy divisions ; but it also includes, 
among other things, the establishment of the rules of military subor- 
dination, and the principle by which a selection shall be made from 
the body of the citizens for military duty. This selection may be 
governed by various considerations of military fitness or public 
policy. Age, health and stature are important in the former case. 
The question of native or foreign birth may, in a time of war, when 
sympathies and prejudices are easily excited, become very material 
in determining the policy of the government. The law-making 
power is therefore intrusted with very large authority. The selection 
of subjects for military duty is made in this Commonwealth by 
enrollment, and so frequently is that term used in the legislation of 
our general court and of congress, i-elating to the militia, that it 
has acquired a well-understood technical meaning. The " enroll- 
ment " of the militia is that preliminary process of preparing lists of 
those subject to militia duty, which lists form the basis of all future 
action by those intrusted with the duty of organization. To "enroll" 
the men is the first step towards organization. 

No further suggestions are necessary to indicate that the legisla- 
ture of the Commonwealth may prescribe the rules to be observed 
in " enrolling " the militia, unless their authority has been impaired 
by the constitution of the United States, or the laws of congress 
made in pursuance thereof. 

Thus the impoi'tant question of constitutional law recurs, whether 
in view of the existing laws of the United States and the power 
over the organization of the militia which is given to congress by 
the federal constitution, a State legislature can constitutionally pro- 
vide for the enrollment in the militia of any persons other than those 
enumerated in the Act of congress, appi'oved May 8, 1792. It is 
my opinion that a State legislature cannot make such a provision. 

In the constitution of the United States, article 1, section 8, among 
the other enumerated powers of congress, it is specially set forth 
that congi-ess shall have power " to provide for organizing, arming 
and disciplining the militia, and for governmg such part of them as 



698 SPECIAL MESSAGES. 

may be employed in the service of the United States, reserving to 
the States, respectively, the appointment of the officers and the 
authority of traming the mihtia, according to the discipline prescribed 
by congress." 

If the power thus delegated to the federal congress is exclusive, 
* the right of the State legislatures, in regard to prescribing who shall 

be enrolled, is wholly abrogated. 

The State government will clearly retain all the rights of sover- 
eignty which it had before the adoption of the federal constitution, 
and not thereby exclusively delegated. 

Federalist, No. 32. Const. U. S., Art. 10 of the Amendments. 

Is this delegation of power exclusive? In the number of the 
Federalist already referred to, it is suggested that the alienation of 
State power or sovereignty can exist only in three cases, viz. : 

1. Where the constitution in express terms granted an exclusive 
authority to the Union. 

2. Where it granted in one instance an authority to the Union, 
and in another prohibited the States from exercising the like author- 
ity. 

3. Wliere it granted an authority to the Union, to which a similar 
authority in the States would be absolutely and totally contradictory 
and repugnant. 

A similar classification is adopted by Mr. Justice Story in Hous- 
ton V. Moore, 5 Wheat. 49, and it is stated by Chancellor Kent, 1 
Kent's Com. 387, that in the course of judicial construction, from 
time to time, there has been no essential variation from the contem- 
porary exposition of the Federalist. 

Under this classification, can this power be deemed exclusive? 
It certainly does not fall Avithin either of the first two classes. 
Certainly not within the first. Neither is it included in the second. 
There is no prohibition to the States in regard to the exercise of a 
like authority. To be sure, no State can keep troops or ships of 
war, in time of peace, (Const. U. S., Art. 1, Sect. 10,) but in view of 
the powers reserved to the States in relation to the appointment of 
officers and the ti-aining of the militia, this prohibitory clause cannot 
be claimed, and never has been claimed, to apjily to the militia. 
Thispower, if claimed to be exclusive, must then be ranked, if in any, 
in the third class enumerated in the Federalist. And such has been 
the decision of the court of last resort. The leading, and perhaps, 
the only decisive case, upon this point, is that of Houston v. Moore, 
5 Wheat. 1. In that case Mr. Justice Washington, in delivering 
the opinion of the court (p. 21) says: — "It may be admitted at 
once, that the militia belong to the States, respectively, in which 
they may be enrolled, and that they are subject, both in their civil 
and military capacities, to the jurisdiction and laws of such State, 
except so far as those laws are controlled by Acts of congress con- 
stitutionally made. Congress has power to provide for organizing, 
arming and disciplining the militia ; and it is presumable that the 
framers of the Constitution contemplated a full exercise of all these 
powers. Nevertheless, if congress had declined to exercise them, 



SPECIAL MESSAGES. 699 

it was competent to the State governments to provide for organizing, 
arming and disciplining their respective miUtia, in such manner as 
they might think proper. But congi-ess has provided for all these 
subjects, in the way which that body must have supposed the best 
calculated to promote the general Avelfare, and to provide for the 
national defence. After this, can the State governments enter upon 
the same ground — provide for the same objects as they may think 
proper, and punish in their own way violations of the laws they 
have so enacted ? The affirmative of this question is asserted by 
the defendant's counsel, who, it is understood, contend, that unless 
such State laws are in direct contradiction to those of the United 
States, they are not repugnant to the constitution of the United 
States. 

" From this doctrine, I must, for one, be pei'mitted to dissent. The 
two laws may not be in such absolute opposition to each other, as to 
render the one incapable of execution, without violating the injunc- 
tions of the other ; and yet, the will of the one legislature may be in 
direct collision with that of the other. This will is to be discovered 
as well by what the legislature has not declaimed, as by what they 
have expressed. Congress, for example, has declared, that the 
punishment for disobedience of the Act of congress, shall be a 
certain fine ; if that provided by the State legislature for the same 
offence be a similar fine, with the addition of imprisonment or death, 
the latter law would not prevent the former from being carried into 
execution, and may be said, therefore, not to be repugnant to it. But 
surely the will of congress, is, nevertheless, thwarted and opposed. 

" This question does not so much involve a contest for power 
between the two governments, as the rights and privileges of the 
citizen, secured to him by the constitution of the United States, the 
benefit of which he may lawfully claim." 

It should, however, be suggested that in this class of cases of dele- 
gation of power, the authority of the State is not always considered 
lost until the similar authority has been actually exercised, and only 
to the extent of its exercise, by the federal government. For, in 
many instances, the States may legislate in the absence of congres- 
sional regulation, — the correct principle being, that whenever the 
terms in which the power is granted to congress, or the nature of 
the power requires that it should be exercised exclusively by con- 
gress, the subject is as completely taken from the State legislatures, 
as if they had been expressly forbidden to act upon it. 

Sturgess v. Crowninshield, 4 "Wheat. 193. 

The power of congress, in relation to the organization of the 
militia, is one which becomes exclusive when exercised, and not till 
then. Houston v. Moore, ut supra. 

See also opinion of Story, J. Same case, p. 52. 

With these explanations, the answer to the first question pro- 
pounded is obvious. The power of congress having been exercised 
by the enactment of the statute of 1792, which so far as relates to 
the enrollment of the militia, is still in force, all State legislation upon 
the same subject matter is wholly nugatory and void. To provide, 
10 



700 SPECIAL MESSAGES. 

by a law of this Commonwealth, that a different class of men shall 
be selected for militia duty from those specified by an Act of con- 
gress, constitutionally passed, in the exercise of a power distinctly 
granted, is a violation of the paramount law of the land. The 
militia, thus enrolled, are the militia who, under federal authority, 
may be called upon to suppress insurrection or repel invasion. 
They are the militia to whom the arms and munitions of war, 
provided by the federal government, are intrusted, conformably to 
the laws of the United States. They are the militia whose organi- 
zation, according to a uniform system, is contemplated by the con- 
stitution. But how can that uniformity be secured, if the laws of 
the United States are not to be obeyed ? There may be one 
standard for Maine and another for Califoi-nia. The efficiency of 
the system may be wholly impaired by the enrollment of too small 
a number or by including those of infirm age or feeble health. But 
illustrations need not be multiplied in so clear a case. Any State 
law, establishing a different standard of enrollment from that estab- 
lished by a law of congress is so far unconstitutional and void. 

My attention has been called to the article of amendment to the 
federal constitution (Art. 2,) that " a well regulated militia being 
necessary to the security of a free State, the right of the people to 
keep and bear arms shall not be infringed," and to article XVII. of 
the Bill of Rights prefixed to the constitution of this Commonwealth, 
which provides that " The people have a right to keep and to bear 
arms for the common defence ; and as in time of peace armies are 
dangerous to liberty, they ought not to be maintained without the 
consent of the legislature ; and the military power shall always be 
held in an exact subordination to the civil authority, and be governed 
by it." 

I am wholly at a loss, however, to understand how the right to 
bear arms is impaired by exclusion from the militia. The militia is 
the citizen soldiery of a nation, necessarily organized upon some 
principle of exemption, or even exclusion, by a process technically 
called enrollment, to be held in readiness for great emergencies, like 
insurrection or invasion, but not ordinarily to be requii-ed to perform 
active and constant military duty. The claim that all persons, 
entitled to bear arms, are entitled to enter this organization, may 
lead to the absurd conclusion, that persons of all classes, aliens as 
well as citizens, females as well as males, all in fact who may assert 
the right of self-defence, have a right to be enrolled. 

The opinion now expressed, does not apply to the right of individ- 
uals peaceably to organize themselves into armed bodies, at their 
own expense, for military instruction, or defence against lawless 
violence, in regard to which I do not understand any inquiry to be 
addressed. 

II. The second question requires, in reply, the statement of a 
few principles, which have become so famihar as to be considered 
elementary. 

The constitution of the United States (Art. 6,) contains the 
following provision, " This constitution and the laws of the United 



SPECIAL MESSAGES. 701 

States which shall be made in pursuance thereof, and all treaties 
made, or which shall be made, under the authority of the United 
States shall be the supreme law of the land ; and the judges in 
every State shall be bound thereby, any thing in the constitution or 
laws of any State to the contrary notwithstanding." The question 
propounded assumes the case of a law, constitutionally enacted by 
congress, in the exercise of an unquestioned power, and the inquiry 
is, whether so much as has not been repealed or modified by subse- 
quent Acts of the same body, has the force of law in this Common- 
wealth, and must be obeyed by all officers, civil and military, in the 
absence, or even in the conflict of State legislation. There can be 
but one answer to this naked question. The law of congress is the 
supreme and paramount law of the land. Its authority extends 
throughout the United States, not through the State governments, 
but notwithstanding all local laws and regulations. So far as 
State laws conform, they are nugatory and harmless ; so far as they 
conflict, they are unconstitutional and void. 

Houston V. Moore, 5 Wheat. 24. 
Norris v. Boston, 4 Met. 295. 

Up to this point there is no difficulty, and perhaps it is safe simply 
to suggest, that all officers under the State government, civil and 
military, are bound by its provisions. I am not aware that the Act 
of 1792, which is referred to, imposes directly any duty upon any 
State officers, not military. It contains provisions relating to the 
duty of the adjutants-general of the several States, and other officers 
in the staflf and line of the militia. By force of the constitutional 
provision, already cited, which while it authorizes congress to pro- 
vide for the organization of the militia, reserves to the States the 
right of the appointment of its officers, and the authority of training 
it, according to the discipline prescribed by congress, our militia and 
its officers are made directly subject to the Act of 1792. 

But I am embarrassed as to its effiBCt upon officers whose functions 
are purely civil, and who derive their authority from State laws. 
Thus recent statutes of this Commonwealth (stat. 1840, chap. 92, 
§§ 3, 4 — stat. 1842, chap. 93", § 7,) impose upon the assessors the 
duty of making lists of persons liable to enrollment, and of trans- 
mitting the same through the town clerks to the adjutant-general. 
But assessors are not officers of the federal government, nor can the 
United States government require them, as such, to aid in the organ- 
ization of the militia system. These are the opinions that seem to 
result necessarily from the opinion of the Supreme Court of the 
United States, in Houston v. Moore, already cited. It is the exact 
doctrine laid down by that court in Prigg v. Pennsylvania, 1 6 Pet., 
616, where it is asserted that the States cannot be compelled to 
enforce the provisions of the fugitive slave law of 1793, the national 
government being alone bound, through its own proper departments, 
legislative, judicial or executive, to carry into effiict all the rights 
and duties imposed upon it by the constitution, in respect to this 
subject-matter. An intimation of similar character is given by the 
supreme judicial court of this Commonwealth, in relation to the 



702 SPECIAL MESSAGES. 

effect of the United States naturalization laws, in the case of Stephens, 
Petr., 4 Gray, 5G2. 

It results from these considerations that militia officers, although 
by one of the anomalies of the federal constitution they are elected 
or appointed conformably to State laws, are nevertheless officers 
under a great federal system, and must yield in all respects both 
active and passive obedience to the aforesaid Act of congress. 

All State laws which impose upon any civil officers, such as 
assessors and town clerks, or the like, duties which are inconsistent 
with the law of the United States, are so far void, and of no obliga- 
tion whatever. But the purely civil officers of a State cannot, as 
such, be compelled to take any active part in the administration of 
the militia law of the United States, unless the exact duty is imposed 
upon them by the Act of their own legislature, constitutionally 
passed, in conformity with some law of congress in the exercise of 
its power to organize the militia. 

I therefore most respectfully submit, as the result of my investi- 
gations, that — 

I. The legislature of this Commonwealth cannot constitutionally 
provide for the enrollment in the militia of any persons other than 
those enumerated in the Act of congress, approved May 8, 1792, 
entitled " An Act more effectually to provide for the national 
defence by establishing an uniform militia throughout the United 
States." 

II. The aforesaid Act of congress, as to all matters therein pro- 
vided for, and except as amended by subsequent Acts, has the force 
of law in this Commonwealth ; in the absence or even conflict of 
State legislation, all military officers under the State government are 
bound by its provisions, and must render both active and passive 
obedience. All officers whose functions are purely civil, must obey 
it as the paramount law of the land and cannot obstruct its execution ; 
but they cannot, without consistent State lec/islation., be required to 
enforce it, or to lend the influence and authority of their offices in 
carrying it into effect. 

All of which is most respectfully submitted by 
Your obedient servant, 
STEPHEN H. VHYLLIV^, Attorney- General 



SPECIAL MESSAGES. 703 



OPINION OF THE SUPREME JUDICIAL COURT 



UPON THE 



ORGANIZATION OF THE MILITIA: 

Answer to Interrogatories propounded by the Governor and Council. 



INTERROGATORIES. 

Whether the legislature of this Commonwealth can constitutionally 
provide for the enrollment in the militia, of any persons other than 
those enumerated in the Act of congress, approved May 8, 1792, 
entitled, " An Act more effectually to provide for the national 
defence, by establishing an uniform militia throughout the United 
States " ? 

Whether the aforesaid Act of Congress, as to all matters therein 
provided for, and except as amended by subsequent Acts, has such 
force in this Commonwealth, independently of, or notwithstanding 
any State legislation, that all officers under the State government, 
civil and military, are bound by its provisions ? 

OPINION. 

The undersigned, justices of the supreme judicial court, having 
considered the above stated interrogatories, propounded to them by 
the governor and council, do hereby, in answer thereto, respectfully 
submit the following opinion : 

We are first, as preliminary to any direct answer to the inquiries, 
to consider what the militia was, as understood in the constitution 
and laws, both of this Commonwealth and of the United States. It 
was an institution, not only theoretically known but practically 
adopted and carried into effect in all the colonies and provinces 
before the revolution, and even before the formation of a congress 
for any purpose. The utility and capabilities of this institution for 
military purposes had been put to a severe test by the events of the 
revolution, and were well understood before either of these consti- 
tutions was adopted. 

Prior to the revolution, the establishment and control of this insti- 
tution was within the jurisdiction of the respective colonial and 
provincial governments, because these were the only local govern- 
ments acting directly upon the rights and interests of the inhabitants 
within their respective territorial Umits. It was constituted by 
designating, setting apart, and putting in military array, under 



704 SPECIAL MESSAGES. 

suitable military officers, all the able-bodied male inhabitants of 
the province, with certain specified exceptions, and was held in read- 
iness, upon certain exigencies, and in the manner provided by law, to 
act under military orders as a military armed force. It was the 
constituting of a citizen soldiery, in contradistinction to a regular or 
standing army. Such having been the jurisdiction of the several 
provincial governments, it naturally devolved upon the respective 
State governments, after the Declaration of Independence, and 
during the earlier years of the revolutionary war. During that 
period, all were acting under the articles of confederation, which 
was rather a league between the States for mutual defence, than a 
government acting directly upon the people of those States. 

The constitution of Massachusetts was adopted and went into 
operation in 1780. It recognized the militia as an essential depart- 
ment of the constitution of its government, and provided for the 
enrollment of the men, the appointment of the officers, their duties 
and powers, with all the details to give efficiency to this cherished 
arm of defence, and declaring its proper subordination to the civil 
power. It also, in the declaration of rights, distinctly declared the 
right of the people to bear arms. But this constitution, recognizing 
the existence of the articles of confederation between the States, 
and the powers thereby vested in the Congress of the United States, 
and possibly anticipating important changes therein, reserved from 
the State governments all powers then vested, or which might after- 
wards be constitutionally vested in congress. 

Several years afterwards, in 1789, the constitution of the United 
States having been adopted by the required number of States, 
including Massachusetts, went into operation, and became the law 
of the land. This system was founded upon an entirely different 
principle from that of the confederation. Instead of a league among 
sovereign States, it was a government formed by tlic people, and to 
the extent of the enumerated subjects, the jurisdiction of which was 
confided to and vested in the general government, acting directly 
upon the people. " We, the people," are the authors and constitu- 
ents ; and " in order to form a more perfect union," was the declared 
purpose of the constitution of a general government. 

It was a bold, wise and successful attempt to place the people 
under two distinct governments, each sovereign and independent, 
within its own sphere of action, and dividing the jurisdiction between 
them, not by territoinal limits, and not by the relation of superior 
and subordinate, but classifying the subjects of government, and 
designating those over which each has entire and independent juris- 
diction. This object the constitution of the United States proposed 
to accomplish, by a specific enumeration of those subjects of general 
concern in wliich all have a general interest, and to the defence and 
protection of which the undivided force of all the States could be 
brought promptly and directly to bear. 

Some of these were, our relations with foreign powers, war and 
peace, treaties, foreign commerce and commerce amongst the several 
States, with others specifically enumerated ; leaving to the several 



SPECIAL MESSAGES. 705 

States their full jurisdiction over rights of person and property, and, 
in fact, over all other subjects of legislation not thus vested in the 
general government. All powers of government, therefore, — legis- 
lative, executive and judicial, — necessary to the full and entire 
administration of government over these enumerated subjects, and 
all powers necessarily incident thereto, are vested in the general 
government ; and all other powers, expressly as well as by implica- 
tion, are reserved to the States. 

This brief and comprehensive view of the nature and character of 
the government of the United States, we think is not inappropriate 
to this discussion, because it follows as a necessary consequence that 
so far as the government of the United States has jurisdiction over 
any subject, and acts thereon within the scope of its authority, it 
must necessarily be paramount, and must render nugatory all legis- 
lation by any State, which is repugnant to, and inconsistent with it. 
There may, perhaps, in some few cases, be a concurrent jurisdiction, 
as in case of direct taxation of the same person and property ; but 
until it shall practically extend to a case where there may be an 
actual interference, by seizing the same property at the same time, 
the exercise of the powers by the one is not, in its necessary effect, 
exclusive of the exercise of a like power by the other ; but in such 
a case, they are not repugnant. That one must be so paramount, to 
prevent constant collision, is obvious ; and accordingly the constitu- 
tion expressly provides that the constitution and all laws and treaties 
made in pursuace of its authority, shall be the supreme law of the 
land. 

Assuming that such was the manifest object of the people of the 
United States, and of the several States, respectively, in establishing 
the two distinct governments in each State, we proceed to the more 
direct consideration of the questions propounded. 

The establishment of a militia was manifestly intended to be 
effected by arranging the able-bodied men, in each and all the States 
in military array, arming and placing them under suitable officers, 
but without forming them into a regular or standing ai-my, to be 
ready, as the exigency should require, to defend and protect the 
rights of all, whether placed under the administration of the local or 
general government, to be called out by either, in the manner and 
for the purposes determined by the constitution and laws of either. 
It was one and the same militia for both purposes, under one uni- 
form organization and discipline, and to be commanded by the same 
officers. Were it otherwise, were the general and the State govern- 
ments to have their own militia, the result would have been that 
there would be, within the bosom of each State, a large embodied 
military force, not by its organization amenable to the laws or subject 
to the orders of the State government ; and also a similar force, on 
which the general government would have no right to call for aid, to 
repel invasion, suppress insurrection, or execute the laws ; a state of 
things, not only rendering each, to a great extent, inefficient and 
powerless, but also entirely destructive of that harmony and union, 
which were intended to characterize the combined action of both 



706 SPECIAL MESSAGES. 

governments. We find, therefore, tliat the functions of botli are 
called into activity, in constituting this military force and carrying it 
into practical operation. 

The constitution of the United States having charged the general 
government with the administration of the foreign relations of the 
whole Union, and the military defence of the whole, provides, article 1 
section 8, " That congress shall have power to provide for calling 
forth the militia to execute the laws of the Union, suppress insurrec- 
tions and repel invasions ; to provide for organizing, arming and dis- 
ciplining the militia, and for governing such part of them as may be 
employed in the service of the United States, reserving to the States 
respectively, the appointment of the officers, and the authority 
of training the militia, according to the discipline prescribed by 
congress." 

" Organizing " obviously includes the power of determining who 
shall compose the body known as the militia. The general principle 
is, that a militia shall consist of the able-bodied male citizens. But 
this description is too vague and indefinite to be laid down as a prac- 
tical rule ; it requires a provision of positive law to ascertain the 
exact age, which shall be deemed neither too young nor too old to 
come within the description. One body of legislators might think 
the suitable ages would be from 18 to 45, others from 16 to 
30 or 40, others from 20 to 50. Here the power is given to the 
general government, to fix the age precisely, and thereby to put an 
end to doubt and uncertainty ; and the power to determine who 
■ shall compose the militia, when executed, equally determines who 
shall not be embraced in it, because all not selected are necessarily 
excluded. 

The question upon the construction of this provision of the consti- 
tution is, whether this power to determine who shall compose the 
militia is exclusive. And we are of opinion that it is. A power 
when vested in the general government is not only exclusive when it 
is so declared in terms, or when the State is prohibited from the 
exercise of the like power, but also when the exercise of the same 
power by the State is superseded, and necessarily impracticable and 
impossible, after its exercise by the general government. For 
instance, when the general government have exercised their power 
to establish an uniform system of bankruptcy, that is, laws for 
sequestering and administering the estate of a living insolvent 
debtor ; when one set of commissioners and assignees of such 
estate have taken possession of property, with power to sell and 
dispose of it, and distribute the proceeds, another set of officers, 
under another law, cannot take and dispose of the same prop- 
erty. The one power is necessarily repugnant to the other ; if 
one is paramount, the other is void. We think the present case is 
similar. The general government having authority to determine 
who shall and who may not compose the militia, and having so 
determined, the State government has no legal authority to prescribe 
a different enrollment. This power was early carried into execution 
by the Act of congress of May, 1792, being an " Act more effectu- 



SPECIAL MESSAGES. 707 

ally to provide for the national defence, by establishing an uniform 
militia throughout the United States." This Act specially directs 
who shall be, and by necessary implication, who may not be enrolled 
in the militia. This is strengthened by a provision that each State 
may by law exempt persons embraced in the class for enrollment, 
according as the peculiar form and particular organization of its 
separate government may require ; but there is no such provision 
for adding to the class to be enrolled. 

We are therefore of opinion, that the legislature of this Common- 
wealth cannot constitutionally provide for the enrollment in the militia 
of any persons, other than those enumerated in the Act of congress 
of May, 1792, hei-ein before cited. 

We do not intend, by the foregoing opinion, to exclude the exist- 
ence of a power in the State to provide by law for arming and 
equipping other bodies of men, for special service of keeping guard, 
and making defence, under special exigencies, or otherwise, in any 
case not coming within the prohibition of that clause in the consti- 
tution, article 1, section 10, which withholds from the State the power 
" to keep troops ; " but such bodies, however armed or organized, 
could not be deemed any part of " the militia," as contemplated and 
understood in the constitution and laws of Massachusetts and of the 
United States, and, as we understand, in the question propounded for 
our consideration. 

Nor is this question, in our opinion, affected by article 2 of 
the amendments of the constitution, of the following tenor : — "A 
well-regulated militia being necessary to the security of a free State, 
the right of the people to keep and bear arms shall not be in- 
fringed." 

This, like similar pi'ovisions in our own declaration of rights, 
declares a great general right, leaving it for other more specific 
constitutional provision, or to legislation, to provide for the preserva- 
tion and practical security of such right, and for influencing and 
governing the judgment and conscience of all legislators and magis- 
trates, who are thus required to recognize and respect such rights. 

In answer to the second question proposed, we are of opinion that 
the Act of congress above cited, as to all matters therein fjrovided 
for, except so far as it may have been changed by subsequent Acts, 
has such force in this Commonwealth, independently of and not- 
withstanding any State legislation, that all officers under the State 
government, civil and military, are bound by its provisions. 

LEMUEL SHAW. 

THERON METCALF. 

GEORGE T. BIGELOW. 

PLINY MERRICK. 

EBENEZER R. HOAR. 
Boston, Dec. 23, 1859. 

11 



(JDommoniBealtlj of Passadjusetts. 



Secretaey's Department, Boston, 
- January 1860. 

I hereby certify that the printed Acts, Resolves, Messages, 
&c., contained in this volume, are true copies of the originals. 

OLIVER WARNER, 

Secretary of the Commonwealth. 



INDEX. 



Almshouse, State, at Monson, relating to preservation of, from fire, 
Ancient and Honorable Artillery Company, Resolves of thanks to, 
Andrews, John P. and George, Trustees, Resolve on petition of. 
Appropriation, additional, for better protection of State Almshouses 
from fire, ..... 
" for vrarming and ventilating the Representatives' Hall, 

Appropriations, certain, authorizing transfer of, for Military purposes, 

" for certain expenditures and deficiencies, and for other 

purposes, ..... 
" for compensation of the Committee on Revision of the 

Statutes, and other purposes, 
" for compensation of the Doorkeepers, Messengers and 

Pages, ..... 

" for Mileage and Compensation of the Legislature, 

" further, for repair and maintenance of Charles River 

and Warren Bridges, 
Artillery, Ancient and Honorable, Resolve of thanks to, 
Assistant-Librarian, relating to salary of, ... 



Page 647 
646 
649 

631 
657 
657 

632, 643 

643 

631, 643 
630 

641 
646 
650 



B. 

Baptist Society, Shawmut Avenue, in Boston, to incorporate, 

Bass, John P., Resolve for relief of, . 

Benson, George W., Resolve in favor of the Widow of. 

Board of Agriculture, relating to Salary of Secretary, 

Bridges, Charles River and Warren, relating to repairs upon, 

" '< " " " further appropriations for, 

Buildings, Wooden, in the City of New Bedford, for the regulation of. 



640 
654 
655 
650 
651, 652 
641 
639 



c. 

Charles River and Warren Bridges, relating to Repairs upon, . 651,652 

" •' " " ♦' further appropriations for repair 

and maintenance of, . 641 



11 



INDEX. 



Church, Newton Street Methodist Episcopal, to change the Name of, 
Clerk of Committee on Revision of the Statutes, Resolve for pay of. 
Commissioner, Indian, extending time for Report of, 
Commissioners of Dukes County, to borrow money to finish the Court 
House at Edgartown, 
" of Essex County, to borrow money to rebuild the Court 

House at Lavrrence, 
" on the Revision of the Statutes, Resolve for payment of, 

Committee on Flowage of Lands, Resolve for compensation of, . 

" on the Liquor Commission, Resolve for payment of ex 

penses of, .... . 

'• on Maine Lands, Resolve for compensation of, 

" on Revision of the Statutes, ApjDropriations for compensa- 

tion of, 
" " <' " and its Officers, Resolve for pay 

meiit of. 
Commonwealth, Territorial Limits of, declaring, and establishing the 

limits of certain Counties, .... 
Constables, for removal of, for cause, in cities. 
Counties, certain, limits and jurisdiction of, established. 
Court House at Edgartown, authorizing loan for finishing, 
" " at Lawrence, authorizing loan for rebuilding. 

Court, Supreme Judicial, concerning, 

" " " in the County of Worcester, 

terms of, . 
" " " and the Superior, relating to terms of, 

Crane, William S., Resolve in favor of the Widow of, 
Criminal Cases, relating to Jurisdiction in. 



Page 631 
652 
647 

647 

647 
652 
655 

656 
652 

643 

650, 652 





640 




642 


. 


640 


. 


647 


. 


647 




635 


concerning 




. 


629 


of, 


629 


. 


654 


, , 


632 



D. 

Doorkeepers, Messengers, and Pages, Appropriations for compensation of, 631, 643 

" " " Resolve for payment of, • . 652, 655 

Dukes County, Court House at Edgartown, authorizingloan for finishing, 647 



E. 

Eighth Society Methodist Episcopal Church in Boston, concerning 

change of Name to, . . . . . . . 631 

Encampment, State, at Concord, expenses of transportation to. Resolve 

for payment to certain Companies, . . . . . 651 

Essex County, Commissioners to borrow money to rebuild Court House 

at Lawrence, ....... 647 



F. 



Flowage of Lands, Committee on. Resolve for compensation of, 



666 



INDEX. iii 



G. 

General Statutes, relative to appending a Glossary to, . . . Page 656 

" " relative to publication and distribution of, . 656, 657, 658 

Glossary to the General Statutes, relative to appending, . . 666 

H. 

Habeas Corpus, relating to Writ of, . , . . . 641 
House in Hancock Street, lately occupied by the Sergeant-at-Arms, 

Resolve for the payment of certain expenses of the sale of, . . 646 

I. 

Indian Commissioner, extending time for Report of, . . . 647 

J. 

Jurisdiction in Criminal Cases, relating to, . . . . 632 

•' and limits of Certain Counties established, . . . 640 



Lands, Flowage of, Resolve for payment of Committee on, . . 655 

Lands in Maine, Committee on, Resolve for compensation of, . . 652 

" " repealing in part Resolve, chap. 52, of 1859, concerning, 655 

Legislature, Mileage and Compensation of Members, Appropriations for, 630 

*' Officers and Members of, fixing Compensation of, . . 650 

" Travel of members, concerning, . . . . 654 

Librarian, Assistant, relating to salary of, .... 650 

Library, State, concerning, ...... 653 

Liquor Commission, Committee on. Resolve for payment of expenses, . 656 
Lumber District, establishment of, and appointment of a Surveyor- 
General, additional to Act authorizing, . . . . 629 



M. 

Maine Lands, Committee on. Resolve for compensation of, . . t 652 

" '« repealing in part Resolve chap. 52, of 1859, concerning, . 655 

Mann, Horace, Resolve relating to a Statue of, . . . . 649 

Messages, Special, . . . . . . • 659 

Messengers, Door-keepers and Pages of the Legislature, Appropriations 

for compensation of, . . 631,643 

«• •» " Resolves for payment of, . . 652, 655 



iv INDEX. 

Methodist Episcopal Church, Newton Street, Boston, name changed to 

Trustees Eighth Society, ••..,. Page 631 
Mileage and Compensation of Members of the Legislature, appropri- 

tions for, ..,..,., 630 

Military Bounties, authorizing transfer of certain appropriations to 

account of, . . , . . . _ ggy 

" Companies, certain, Resolve for payment expenses of trans- 
portation to State Encampment, .... 651 

N. 

Nautical Branch of the State Reform School, authorizing purchase of 

Vessel for, . 648 

" " " " establishing, , , 636 

" " " " relating to, . . 637, 650 

New Bedford, Wooden Buildings in, for the regulation of, . . 639 

Newton Street Methodist Episcopal Church, Trustees of, name changed, 631 

0. 

Officers of the Legislature, Resolve for compensation of, . . 650 

P. 

Pages, Messengers and Door-keepers, appropriations for compensation of, 631, 643 
" " " Resolve for payment of, . . 652, 655 

Public Lands in Maine, repealing in part Resolve, chap. 52, of 1859, 

respecting, ..... 655 

" " Resolve for compensation of the Committee on, 652 

PubHcation and Distribution of the General Statutes, relative to, 656, 657, 658 

R. 

Reform School, State, concerning, ..... 647 

" " State, establishing the Nautical Branch of, . . 636 

" " State and Nautical Branch of, relating to, . . 637, 650 

" " State, Nautical Branch of, authorizing purchase of a 

Vessel for, ...... 648 

" " State, providing for the erection of certain buildings for, 653 
Reports of Decisions of S. J. Court, purchase and distribution of, addi- 
tional Act respecting, . . . . , . 641 

Representatives' Hall, appropriation for warming and ventilating-' . 657 
Revision of the Statutes, appropriation for compensation of the Com- 
mittee on, .... 643 

" " " authorizing issue of scrip for payment of ex- 
penses, ..... 642 



INDEX. V 

Revision of the Statutes, Resolve for payment of Commissioners on, . Page 652 
" " " Resolve for payment of Committee on and 

Officers, ..... 650, 652 
Robinson, James T., Resolve in favor, ..... 646 

Russell, James, Resolve in favor of, .... . 554 



s. 



Salaries of Secretary Board of Agriculture and Assistant Librarian, re- 
lating to, ....... . 650 

School, State Reform, authorizing purchase of a Vessel for Nautical 

Branch of, . . . . . 648 

" " " establishing the Nautical Branch of, . . 636 
" " " Nautical Branch of, relating to, . . . 637, 650 

" " " providing for erection of certain buildings for, . 653 

" " " Resolves concerning, .... 647 

Scrip, authorizing issue of, for payment of expenses of the Revision of 

the Statutes, ........ 642 

Secretary of Board of Agriculture, relating to salary of, . . . 650 
Sergeant-at-Arms, Resolve for payment of certain expenses of sale of 

House lately occupied by, . . . 646 

" Resolve for payment of, for extra services, . . 655 

Shawmut Avenue Baptist Society in Boston, to incorporate, . . 640 

Special Messages, ........ 659 

State Almshouse at Monson, relating to preservation of from fire, . 647 
" Encampment, Resolve for payment expenses of transportation of 

certain companies to, . . . . . . 651 

" Library, concerning, ...... 653 

«' Reform School, establishing the Nautical Branch of, . . 636 
«' •' '< Nautical Branch of, authorizing purchase of Ves- 
sel for use of, . . . . . 648 

•' " " and Nautical Branch of, relating to, . . 637, 650 

'* " " providing for the erection of certain buildings for, 653 

'< *' '♦ Resolves concerning, .... 647 

" relative to certain property held by, under mortgage from Nor- 

mand and Phebe B. Stiles, ..... 653 

Statue of Horace Mann, Resolve in relation to, . . . . 649 

" of Webster, Inauguration of. Resolve for payment of certain 

expenses, ....... 654 

Statutes, General, relative to appending a Glossary to, . . . 656 
" " relative to the publication and distribution of, 656, 657, 658 

" Revision of, appropriation for compensation of the Committee on, 643 
" " authorizing issue of Scrip for payment of the 

expenses of, . . . . . 642 

" " Resolve for payment of the Commissioners on, . 652 
" " Resolve for payment of Committee on and Officers, 650,662 



VI 



INDEX. 



Stiles, Normand and Phebe B., relative to certain property held by the 

State under mortgage from, ...... Page 653 

Stowell, Luther, Resolve in favor of, . . . . . 650 

Strickland, Lemuel K., to confirm certain acts of, as Justice of the 

Peace, ........ 630 

Superior and Supreme Judicial Courts, relating to terms of, . , 629 

Supreme Judicial Court, concerning, ..... 635 

" " " terms of, in the County of Worcester, . . 629 
" *' " Reports of Decisions, respecting purchase and 

distribution of, additional Act, . . 641 

" " " and the Superior, relating to terms of, . . 629 
Surveyor- General of Lumber, appointment of, &c., additional to Act 

authorizing, ........ 629 



T. 



Territorial limits of the Commonwealth, declaring. 
Travel of Members of the Legislature, concerning, . . . 

Trustees of the Newton Street Methodist Episcopal Church in Boston, 
name changed to Trustees Eighth Society, .... 



640 
654 



631 



V. 

Ventilating and Warming of the Representatives' Hall, appropriation 

for, ........ . 667 

Vessel, authorizing purchase of, for Nautical Branch of the State 

Reform School, . . . . . . . 648 



w. 



AVarren and Charles River Bridges, farther appropriations for repair and 

maintenance of, . . 641 

" «» " " " relating to, .... 651 

•< «< " " " repairs upon, . . . 662 
Watchmen of the State House, Resolve for compensation of, for ser- 
vices as Messengers, ....... 655 

Webster Statue, Inauguration of. Resolve for payment of certain ex- 
penses attending, ....... 654 

Wooden Buildings in the city of New Bedford, for the regulation of, . 639 

Worcester County, terms of Supreme Judicial Court in, concerning, . 629 

Writ of Habeas Corpus, relating to, . . . . . 641 






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