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ANNUAL REPORT

Attorney General

FOR THE YEAR ENDING

December 31, 1873.

BOSTON:

WRIGHT & POTTER, STATE PRINTERS,
Corner of Milk and Federal Streets.

1874.

PUBLIC DOCUMENT.

.No. 12.

ANNUAL REPORT

FOR THE YEAR ENDING

December 31, 1873.

BOSTON:

WRIGHT & POTTER, STATE PRINTERS,
Corner of Milk and Federal Streets.

1874.

(Eommoniucaltl) of ittari0acl)U5ctt5,

Attorney Genehal's Office, Boston, >
7 Court Square, Jan. 19, 1874. \

To the Honorable the Speaker of the House of Bepresentatives.

Sir : — I have the honor to transmit herewith my Annual
Report, for the year ending December 31, 1873.

I am, very respectfully.

Your oljeclient servant,

CHAS. E. TRAIN.

Hon. John E. Sanford.

Commanfoxaltlj nf ^itssatjixxsitts,

Attorney General's Office, Boston, I
7 Court Square, Jan. 19, 1874. \

To the Honorable the SjJeaker of the House of Representatives.

Sir : — I have the honor to submit my Report for the year
ending December 31, 1873.

The whole number of cases in the courts of the Common-
wealth, which have required my personal attentiou, is 237,
classified as follows : —

Indictments for capital crimes, . . .13

Exceptions and reports in criminal cases, . 137
Informations upon the relation of the insur-
ance commissioner, . . . . .42
Informations upon the relation of the harbor

commissioners, ..... 3

Miscellaneous, ...... 42 ■

Tables are appended showing the details of the cases
which have been under my charge during the past year.

The number of applications for requisitions upon the ex-
ecutives of other States for the return of fugitives from
justice, has been thirty-two ; the number granted, twenty-
six ; number refused, six ; the number of criminals returned
under requisitions for trial, thirteen ; the number of requisi-
tions from other States on Massachusetts presented, twenty-
two ; refused, one ; granted, twenty-one.

The following indictments for murder have been tried and
finally disposed of, in the supreme judicial court : —

6 ATTORNEY GENERAL'S REPORT. [Jan.

In the County of Hampden.

An indictment against Albert H. Smith for the mnrcler of
Charles D. Sackett, by shooting with a pistol. This trial
was commenced on the 22d, and conclnded on the 25th of
April, before the late Chief Jnstice Chapman and Mr. Justice
Colt. Defence, insanity. Verdict, guilty of murder in the
first dem-ee. Smith was sentenced to death. N. A. Leonard
and M. B. Whitney were counsel for the prisoner.

In the County of Middlesex.

1. An indictment against Daniel S. Marsh for the murder
of George Marsh, by drowning, in August, 1871. I accepted
a plea of guilty of murder in the second degree, and the
prisoner was sentenced by Chief Justice Gray to imprison-
ment for life. W. B. Gale and Charles Pindell, counsel for
the prisoner.

2. An indictment against Mark Boothby for the murder of
his wife, by shooting with a gun. Trial, October 13th and
14th, before Chief Justice Gray and Mr. Justice Devens.
Defence, a general denial. Verdict, guilty of murder in the
second degree, and sentenced to imprisonment for life. A.
O. Brewster and W. G. Sprague, counsel for the prisoner.

In the County of Suffolk.

1 . An indictment against Abiatha Grant for the murder of
Frank Cliftbrd, by stabbing with a knife. I accepted a plea
of guilty of manslaughter, and Grant was sentenced to the
state prison for the term of fifteen years. R. Morris and A.
E. Pillsbury, counsel for the prisoner.

2. An indictment against Bernard Boland, «//«.s Richard
Hughes, for the murder of Franklin Hall. I accepted a plea
of guilty of murder in the second degree, and he was sen-
tenced to imprisonment for life. R. Morris, counsel for the
prisoner.

3. An indictment against Leavitt Alley for the murder of
Abijah Ellis with an axe. Trial before Justices Wells and
Morton from February 3d to 12th inclusive. Defence, a
general denial. Verdict, not guilty. G. A. Somerby and
L. S. Dabney were counsel for the prisoner.

1874.] PUBLIC DOCUMENT— No. 12. 7

4. Au indictment against Patrick Foley for the murder of
an infant child. It appearing to me that there was not evi-
dence sufficient to authorize a conviction, the prisoner was
discharged on his own recognizance.

5. An indictment against James Cullen for the murder of
Mary Ann. Cullen. The evidence being insufficient in my
opinion to warrant a conviction, Cullen was discharged on
his own recognizance.

Of the persons under indictment for murder, who have
been committed to the Taunton Lunatic Hospital by the su-
preme judicial court as insane, Dr. "VV. W. Godding, the
superintendent, reports to me as follows, under date of Jan-
uary 3d, 1874 : —

Terence Carroll, from Essex County, in 1867. This
man is anxious to have something done for him. I can detect
no active insanity at present ; the mind is slightly weakened.
Is said to have been quite demented in the early part of his
residence here. I believe there is evidence that his insanity
resulted from drink.

Andrew Donnelly, from Middlesex, in 1870. This man
has been recently returned from an elopement of long stand-
ing. I am obliged to keep him in solitary confinement to
prevent escape. He is demented, and such close quarters
will be likely to make him more so. I think his mental con-
dition improved while he was out. I should be thankful if
he could be placed in some place as secure as the state
prison. I do not think his mind in a condition to warrant a
trial.

Joseph Sullivan, from Middlesex, in 1872. This man is
anxious for trial. There is some mental improvement, but I
regard him as still insane.

David Scannell, from Norfolk, in 1872. I think this man
still insane, although he formerly entertained delusions which
he now says are gone, but he is not in my opinion of sound
mind.

Dennis Carney, from Norfolk, in 1871. This man has a
weak mind, but with considerable shrewdness. I find no
active insanity about him. He clearly feigned it when ad-
mitted. I do not consider him of full intellectual capacity.

8 ATTORNEY GENERAL'S REPORT. [Jan.

Thomas Brannan, from Suffolk County, in 1871. I be-
lieve Brannau has reached his normal mental condition, which
is a fair average of his class. He has at times expressed a
wish to be brought to trial, and I have previously mentioned
his case to the attorney general, and have also, at his request,
written his counsel about him. Brannan is quite sensitive,
and it is possible that the excitement of a trial might de-
velop some latent insanity that is not apparent here. I
think not, however. The insanity probably resulted from
di'ink.

In my last annual report I had the honor to recommend
that the law regiilating challenges in criminal cases should
be amended so as to give the Commonwealth the same right
of challenge as is given to the prisoner. Following this rec-
ommendation, the legislature of 1873 gave the Common-
wealth the right in capital cases, or when the offence may be
punished by imprisonment for life, to challenge peremptorily
ten of the jurors from the panel called to try the cause.*
This legislation admitted the propriety of my recommenda-
tion and was an improvement on previous legislation. But
the reason still remains for giving the Commonwealth the
same rights in this regard which are given to the prisoner.
This has been done in other States, and I respectfully renew
the recommendation for the reasons urged in my last report.

Two executions have taken place during the year. One
trial, that of Leavitt Alley, atti-acting great attention from
the atrocity of the crime charged, and the character of the
evidence against the prisoner, resulted in an acquittal. These
three transactions are still fresh in the mind of the com-
munity.

Since the division of the crime of. murder into degi'ces,
experience has demonstrated that juries will return a verdict
of guilty of murder in the second degree, instead of in the
first, when there is the slightest ground for it, and sometimes
when there is not, since such a verdict does not involve a
possibility of taking- the life of the prisoner. The great

* Acts of 1873, chapter 317.

1874.] PUBLIC DOCUMENT— No. 12. 9

argument in favor of the abolition of capital punishment, the
danger that the innocent may be executed instead of the
guilty, presses upon the jurymen with fearful power.
"Death places the victim of the law beyond the reach of
even the most imperfect reparation"; and Avhile, in most of
the counties of the Commonwealth, juries may be obtained
who will convict of murder in the first degree, if the testi-
mony is positive and plenary, in those cases in which the
evidence is circumstantial, although it may satisfy everybody
else, it will fail to satisfy the jury, if their verdict is to con-
sign the prisoner to death. The reasonable doubt, the bene-
fit of which they are instructed to give the prisoner, becomes
a doubt that he possibly may not be the guilty party, and
the prisoner is acquitted, when, if the death of the prisoner
had not been involved, he would have been convicted.

I make these suggestions as applicable to that class of
cases where the crime, if murder at all, is murder in the first
degree, and cannot he. of a lower grade,

Tn my opinion, the certaint}^ of conviction of a crime pun-
ishable by imprisonment for life will be far more efi'ectual in
deterring men from the commission of murder, than the
threatened severity of punishment by death, and if juries
were permitted, by law, to relieve themselves of the terrible
responsi])ility which they now feel in capital cases, growing
out of the existence of the death-penalty, convictions would
be had where ac(|uittals now take place. If an error has
occurred in the trial and conviction of a man sentenced to
imprisonment for life, that error can be measurably repaired
to him ; not so to the unfortunate being whose life has been
taken. As our law now stands, secret murder in this com-
munity may possibly have become one of the safest of
crimes.

I beg leave, therefore, without attempting to discuss the
subject beyond these practical suggestions, to submit to the
legislature, whether it is not desirable, either to abolish the
death-penalty, or to provide that , whenever the jury shall
find a verdict of guilty of murder in the first degree, with a
recommendation to mercy, the death-penalty shall not be
imposed, ]:>ut the sentence shall be imprisonment for life.

10 ATTORNEY GENERAL'S REPORT. [Jan.

In September last, James West, a convict in the state
prison, was brought before the supreme judicial court, on
a writ of habeas corpus, claiming that he was unlawfully
detained in confinement, after the expiration of his sentence.
It appeared that West, on the 15th of December, 18G5, had
been sentenced" by the superior court, for the county of
Suffolk, to imprisonment in the state prison for five and a
half years. On the 30th day of November 1867, a pardon
was granted him, on condition, "that if he be convicted of
any crime sentencing him to the jail, house of correction, or
state prison, he serve the remaining part of the sentence."
On the 22d day of October, 1869, West, under the name of
Jeremiah Conlin, was sentenced by the superior court in
Essex County (having been convicted of the crime of lar-
ceny from the person) to imprisonment in the state prison,
for the term of four years. On the 9th day of Novem-
ber, 1869, it aj^pearing that AVest had violated the con-
dition of his pardon, the governor and council ordered that
he be confined in the state prison for the unex[3ired term of
his first sentence, and it was to test the legality of his deten-
tion, under the order, that the habeas corpus was granted, the
second sentence having expired on the 18th of July, 1873.
West was discharged, after argument before the full court,
and Chief Justice Gray in delivering the opinion says : —

" The goverilor and council had no authority to order him
to be imprisoned, after the expiration of the term of his
original sentence, computed continuously, from its com-
mencement. The theory of the statute of 1867 (c. 301)
manifestly is, that the remanding of a convict to prison, by
the executive, under the statute, and not by the judicial
department, as under the General Statutes, c. 177, sections
13 and 16, which were repealed by the statute of 1867,-
should be nothing more than a remanding to the imprison-
ment from which he had been released, and for so much of
the period thereof as remained unexpired."

The object of a conditional pardon is to put the criminal
on prol)ation l)y allowing him his liberty, and at the same
time holding him in control ])_y the condition, that if he again
violates the la,w, he shall not be relieved from the penalty
attached to liis original crime.

1874.] PUBLIC DOCUMENT— No. 12. 11

This object is not attained if the period of time between
the conditional pardon, and liis subsequent arrest, is to be
taken as a part of the term of sentence.

I submit to the legislature the propriety of either amend-
ing the Act of 1867, or repealing it altogether, and restoring
the provisions of the 197th chapter of the General Statutes,
which it repeals.

As the law now stands, it seems to be reasonably certain,
that a party who falsely makes, alters, forges or counterfeits
any document not specifically named in section 1 of c.
162 of the General Statutes, or utters and publishes as true
any such forged document, can only be punished by im-
prisonment in the house of correction as at common law.

Thus, frauds committed by the alteration of certificates of
stock to the extent of hundreds of thousands of dollars,
seem to be left untouched by the statute, and cannot be
punished by imprisonment in the state prison under an in-
dictment for forgery. I respectfully suggest, therefore, that
the section be so amended as to include " any certificate of
stock or any evidence or muniment of title to property."

By chapter 95, section 7 of the General Statutes it is pro-
vided that " when a public administrator neglects to return
an inventory, settle an account, or perform any other duty
incumbent on him in relation to any estate, and there
appears to be no heir entitled thereto, the district attorney, for
the district within which the administrator received his
letters, shall, in behalf of the Commonwealth, prosecute all
suits and do all acts necessary and proper to insure a
prompt and faithful administration of the estate, and the
payment of the proceeds thereof into the treasury."

It has happened, and may often happen, that it is impossi-
ble for the district attorney to say that there is no heir, and
sometimes a contest arises, as to whether there is an heir or
not, and thus funds are retained by the public administra-
tors, which ought to be in the .treasury of the Commonwealth.
The provision should be, that if no heir appears within a
time specified, say one or two years, after letters of adminis-
tration are granted, the administrator shall pay the funds
into the treasury of the Commonwealth. If an heir after-
wards appears, his money is preserved safely for him in the

12 ATTORNEY GENERAL'S REPORT. [Jan.

state treasury, and if no heir appears, the funds are in the
right place, as escheated to the Commonwealth. It is a great
wrong that considerable sums remain in the hands of some
public administrators indefinitely, for the reason that the
district attorney cannot show that there is no heir, and I
respectfully ask that this wrong may be remedied by appro-
priate legislation.

There does not seem to be any adequate provision for the
protection of the community against the appropriation by
receivers and other ofiicers appointed by the judicial tribu-
nals, of property thus entrusted to their custody and control.
During the past year a large amount of the bonds of the
United States, in the hands of one of the receivers of an in-
surance company, appointed by the supreme judicial court,
were converted by him to his own use. The more efiect-
ually to guard the community against such a breach of
trust, I suggest the- propriety of so amending the statutes
in relation to embezzlement, as to include that class of offi-
cers, and such others as the legislature may deem expedient.

Robert S. Rantoul, Esq., the arbitrator between the Com-
monwealth and the Massachusetts Historical Society, in rela-
tion to the Hutchinson papers, under chapter 81 of the
Resolves of 1871, has made his report, and the papers identi-
fied by him have been surrendered to me by the Society and
placed in the archives of the Commonwealth. His award is
submitted herewith. No provision was made in the Resolves
for any compensation for his services. I respectfully sug-
gest such an appropriation for this purpose as, after a confer-
ence with the Historical Society, shall appear to the legisla-
ture to be just and reasonable.

The sum of one hundred forty -^^^ dollars has been ex-
pended under section 24 of chapter 14 of the General
Statutes, for the contingent e:j^3enses of civil actions.

I remain, very respectfully.

Your obedient servant,

CHAS. R. TRAIN.

1874.] PUBLIC DOCUMENT— No. 12. 13

CASES

Argued and conducted by the Attorney General from January 1st to
December 31st, 1873.

COUNTY OF BERKSHIRE.

Commonwealth v. Patrick Bossidy. S. J. C. Aiding in main-
tenance of nuisance. Report S. C. New trial ordered.

Commonwealth v. Matnrin Ballon. S. J. C. Liquor nnisance.
Exceptions S. C. Exceptions overruled.

Same v. Same. S. J. C. Common seller of liquor. Exceptions
S. C. Exceptions overruled.

COUNTY OF BRISTOL.

Commonwealth v. Margaret Harlow. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions sustained.

Commonwealth v. Joseph Leo. S. J. C. Keeping liquor for sale.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Enos S. Williams. S. J. C. Defacing a build-
ing. Exceptions S. C. Exceptions sustained.

Commonwealth v. Annis A. Lincoln, Jr. S. J. C. Assaidt and
battery. Exceptions S. C. Exceptions overruled.

Commonwealth v. Certain Intoxicating Liquors. (James E.
Blake, claimant.) S. J. C. Proceeding for forfeiture. Exceptions
S. C. Exceptions overruled.

Commonwealth v. William A. Pease. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions sustained.

Commonwealth v. Henry Kendall. S. J. C. Indecent assault.
Exceptions S. C. Not j^et decided.

Commonwealth v. James Maloney. S. J. C. Keeping liquor for
sale. Exceptions S. C. Exceptions sustained.

Commonwealth v. Patrick J. Lunne}'. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Edward Galligan, 3d. S. J. C. Liquor nui-
sance. Exceptions S. C. Exceptions sustained.

Commonwealth v. Henry Fa3^ S. J. C. Uttering forged check.
Exceptions S. C. Exceptions overruled.

14 ATTORNEY GENERAL'S REPORT. [Jan.

Commonwealth v. Certain Intoxicating Liquors. (Albert R.
White, claimant.) S. J. C. Proceeding for forfeiture. Exceptions
S. C. Exceptions overruled.

Commonwealth v. Michael Haher. S. J.C. Keeping liquor for
sale. Exceptions S. C. Exceptions orcrruled.

Commonwealth v. Dennis Galligan. S. J. C. Liquor nmsance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Gardner D. Bosworth. S. J. C. Embezzle-
ment. Exceptions S. C. Exceptions sustained.

COUNTY OF ESSEX.

Commonwealth v. Terence Carroll. S. J. C. Murder. De-
fendant still in lunatic hospital.

Commonwealth v. Dennis Calhane. S. J. C. Single sale of
liquor. Exceptions S. C. Exceptions overruled.

Commonw^ealth v. Edward Daile3^ S. J. C. Burglary. Excep-
tions S. C. Not yet decided.

Commonwealth v. Certain Intoxicating Liquors, (Wm. Darcy,
claimant.) S. J. C. Proceeding for forfeiture. Exceptions S. C.
Exceptions overruled.

Commonwealth v. Certain Intoxicating Liquors. (John J. Mc-
Dermott, claimant.) S. J. C. Proceeding for forfeiture. Excep-
tions S. C. Exceptions overruled.

Commonwealth v. Certain Intoxicating Liquors. (James Han-
Ion, claimant.) S. J. C. Proceeding for forfeiture. Exceptions
S. C. Exceptions waived.

Commonwealth v. John Flanagan. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions waived.

Commonwealth v. John McShane. S. J. C. Liqxior nuisance.
Exceptions S. C, Exceptions overruled.

Commonwealth v. Thomas Dixon. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. John Lyden. S. J. C. ICeeping liquor for
sale. Exceptions S. C. Exceptions overruled.

Commonwealth v. Bernard Carey. S. J. C. Keeping liquor for
sale. Exceptions S. C. Exceptions overruled.

Commonwealth v. James Kelley. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Horace C. Kelly. S. J. C. Adidtery. Ex-
ceptions S. C, Exceptions waived.

Commonwealth v. Margaret Wilson. S, J. C. Adidtery. Ex-
ceptions S. C. Exceptions waived.

Commonwealth v. Joseph N. Lane. S. J. C. Polygamy. Re-
port S, C. Verdict set aside and new trial ordered.

1874.] PUBLIC DOCUMENT— No. 12. 15

Commonwealth v. Thomas Thornton. S. J. C. Cruelty to ani-
mals. Exceptions S. C. Exceptions overruled.

COUNTY OF FRANKLIN.

Commonwealth v. Arad F. Terry. S. J. C. Perjury. Excep-
tions S. C. Exceptions overruled.

COUNTY OF HAMPDEN.

Commonwealth v. Albert H. Smith. S. J. C. 3furder. Ver-
dict, April 25, guilty ^of murder in the first degree. Sentence —
death.

Commonwealth v. New York, New Haven & Hartford Railroad
Co. (Three cases.) S. J. C. Obstructing Jiighiuay. Exceptions
S. C. Exceptions overruled.

Commonwealth, v. W. Clark, alias Wm. Vosburgh. S. J. C.
Larceny. Exceptions S. C. Exceptions overruled.

Commonwealth v. Owen Murphy. S. J. C. Assault ivith intent
to ravish. Exceptions S. C. Exceptions waived.

In the matter of Charles R. Browu. S. J, C. Habeas corpus.
Defendant remanded.

COUNTY OF HAMPSHIRE.

Commonwealth v. William McCandless. S. J. C. Liquor
nuisance. Exceptions S. C. Exceptions sustained.

Commonwealth v. Patrick Moloney'. S. J. C. Keeping liquor
for sale. Exceptions S. C. Exceptions sustained.

Commonwealth v. Patrick McNamee. S. J. C. Common
drunkard. Exceptions S. C. Exceptions overruled.

Commonwealth v. Washington Graves. S. J. C. Larceny.
Appeal S. C. Appeal dismissed.

Commonwealth v. Charles Bush. S. J. C. Assault and battery.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Alexander Strangford. S. J. C. Concealing
mortgaged personal p)roperty. Report S. C. Judgment on the ver-
dict.

Commonwealth v. Thomas J. Garvey. S. J. C. Keeping liquor
for sale. Exceptions S. C. Exceptions waived.

Commonwealth V. Ellen Munsey. S. J. C. Common seller. Ex-
ceptions S. C. Exceptions sustained.

Commonwealth v. William J. Sheehan. S. J. C. Keeping liquor
for sale. Exceptions S. C. Exceptions overruled.

COUNTY OF MIDDLESEX.

Commonwealth v. Andrew Donnelly. S, J. C. 3Iurder. De-
fendant still in lunatic hospital.

IG ATTORNEY GENERAL'S REPORT. [Jan.

Commonwealtli v. Joseph Sullivan. S. J. C. Murder. De-
fendant still in lunatic hospital.

Attorne}' General v. Benjamin F. Woods. S. J. C. Information
to restrain building of dam. Injunction ordered.

Nathan Tufts, Jr., et ul. v. Cit}' of Charlestown, et al. S. J. C.
Petition for appointment of Commissioners, &c. C. I. Reed, Geo.
M. Brooks and Geo. F. Choate appointed Commissioners.

Commonwealth v. William P. Bearse. S. J. C. Mixing poison
with food. Exceptions S. C. Exceptions overruled.

Attorney General v. Boston & Lowell Railroad Corporation.
S. J. C. Information for iiyunction. Not yet heard.

Commonwealth v. Thomas Ryan. S. J. C. Malicious mischief.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Charles W. Dascom. S. J. C. Assault and
battery. Exceptions S. C. Exceptions overruled!

Henry M. Chamberlain and others v. Charles H. Stearns and
others. S. J. C. Bill in equity for instructions as to will.

Commonwealth v. Michael Dunn. S. J. C. Keeping liquor for
sale. Report S. C. Judgment on the verdict.

Same v. Same. S. J. C. Liquor nuisance. Appeal S. C. Judg-
ment affirmed.

Commonwealth v. James S. Wiggin. S. J. C. Assault and bat-
tery. Exceptions S. C. Exceptions overruled.

Commonwealth v. Jeremiah Locke. S. J. C. Illegal transporta-
tion of licpior. Exceptions S. C. Exceptions overruled.

Commonwealth v. Thomas McCormick. S, J. C. Illegal keeping
of liquor. Exceptions S. C. Exceptions overruled.

Commonwealth v. Francena H. Cheney. S. J. C. Nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Certain Intoxicating Liquors. (Hemy Emery,
claimant.) (Two cases.) S. J. C. Proceeding for forfeiture.
Appeal S. C. Appeal dismissed.

Commonwealth v. Frank Doghert}'. S. J. C. Larceny. Ex-
ceptions S. C. Exceptions overruled.

Commonwealth v. James H. Nichols. S. J. C. Adidtery. Ex-
ceptions S. C. Exceptions overruled.

Commonwealth v. Bartle^^ Carr. S. J. C. Assaidt on officer.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Robert Carr. S. J. C. Keeping liquor for
sale. Appeal S. C. Judgment affirmed.

Eastern Railroad Compan}- v. Samuel E. Chamberlain and
another. S. J. C. Bill in equity to enjoin warden of state prison.
Injunction refused.

1874.] PUBLIC DOCUMENT— No. 12. 17

Attovne}' General v. Eastern Railroad Company. S. J. C. In-
formationfor obstructing harhor. Preliminar}- injunction granted.

Samuel F. Woodbridge v. State Board of Health. S. J. C. Pe-
tition for certiorari. Petition dismissed.

Horatio Locke v. State Board of Health. S. J. C. Petition for
certiorari. Petition dismissed.

Commonwealth v. Daniel Marsh. S. J. C. Murder. Guilt}' of
murder in second degree. Sentence — imprisonment for life.

Commonwealth v. Mark Boothb}'. S. J. C. Ifurder. Trial
Oct. 13 and 14. Verdict — guilty of murder in second degree.
Sentence — imprisonment for life.

COUNTY OF NORFOLK.

Commonwealth v. Dennis Carney. S. J. C. Murder. De-
fendant still in lunatic hospital.

Commonwealth v. David Scannell. S. J. C. Murder. De-
fendant still in lunatic hospital.

Commonwealth v. John Hammond. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth y. Andrew Finnegan. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Mary Flaliert}-. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Peter Smith. S. J. C. Larceny in a building.
Exceptions S. C. Exceptions over)'uled.

Commonwealth v. Thomas Haj'es. S. J. C. Keeping liquor for
sale. Exceptions S. C. Exceptions overruled.

Commonwealth v. Jason B. Reynolds. S. J. C. Keeping liquor
for sale. Exceptions S. C. Exceptions overruled.

Commonwealth v. Charles H. Stratton. (Two cases.) S. J. C.
Assault. Exceptions S. C. Not yet decided.

COUNTY OF PLYMOUTH.

Commonwealth v. John Hayes. S. J. C. Liquor nuisance. Ex-
ceptions S. C. Exceptions overruled.

Commonwealth v. Prince E. Penniman. S. J. C. Liquor
nuisance. Exceptions S. C. Exceptions waived.

Commonwealth v. Oscar F. Sampson and another. S. J. C.
Liquor nuisance. Exceptions S. C. Exceptions overruled.

COUNTY OP SUFFOLK.

Commonwealth v. Thomas Branning, cdias Thomas Brennan.
S. J. C. Murder. Defendant still in lunatic hospital.
3

18 ATTORNEY GENERAL'S REPORT. [Jan.

Commonwealth v. Abiathar Grant, alias Abither Grant. S. J. C.
Murder. Plea — guilty of manslaughter. Sentence — fifteen gears'
imprisonment.

Commonwealth v. Bernard Boland, alias Richard Hughes. S. J.
C. Murder. Plea — guilty of murder in the second degree. Sen-
tence— imprisonment for life.

Commonwealth v. Leavitt Alley. S. J. C. Murder. Trial, Feb.
3 to 12. Verdict — not guilty.

Commonwealth v. James Cullen. S. J. C. Murder. Discharged
on his own recognizance.

In the matter of James McElhane3\ S. J. C. Petition for new
trial. Petition refused.

Commonwealth v. Patrick Foley. S. J. C. Murder. Plea — not
guilty. Discharged on his own recognizance.

Four Farm Oil Company, Petitioners, &c. S. J. C. Petition for
dissolution of corporation. Not yet tried.

Boston Bennyhoff Reserve Oil Compan}^, Petitioners, &c. S. J. C.
Petition for dissolution of corporation. Not yet tried.

Commonwealth v. William H. Gardiner. S. J. C. Information.
Not yet tried.

Theodore L^unan, et al., Commissioners ou Inland Fisheries, v.
Holyoke Water Power Compan}-. S. J. C. Information. Writ of
error to Supreme Court of United States. Decree of S. J. C.
affirmed.

Attorne}^ General v. South Pewabic Copper Company. S. J. C.
L formation for tax. Temporary injunction still in force.

Commonwealth v. Eastern Railroad Company. S. J. C. Co7i-
tract on bond. " Neither party " entered. (Resolves of 1873, c. 27.)

Commonwealth v. Norwich and Worcester Railroad Compau3^
S. J. C. Contract on bond. " Neither part}^" entered; (Resolves
of 1873, c. 27.)

Commonwealth, by Insurance Commissioner, v. Monitor Mutual
Fire Insurance Company. Same v. Hide and Leather Insurance
Company. Same v. New England Mutual Marine Insurance Corn-
pan}'. S. J. C. Petitions for injunction. Perpetual injunctions in
force, and affairs of the companies in process of settlement by re-
ceivers.

Commonwealth v. Edwin B. Dow. S. C. ToH against insur-
ance agent for tax. Defendant defaulted, and case continued for
judgment.

Commonwealth v. Charles A. Wood and others. S. C. (Two
cases.) Contract, on insurance agent's bonds. Judgment for plain-
tiff. Executions issued, but unsatisfied.

Commonwealth v. Charles A. Wood and others. S. C. Con-

1874.] PUBLIC DOCUMENT— No. 12. 19

tract, on insurance agent's bond. Judgment for plaintiff, and judg-
ment satisfied.

Commonwealth v. Alexander Crawford. S.J. C. Keeping liquor
for sale. Exceptions S. C. Exceptions overruled.

Commonwealth v. Timoth}- Ilusse}'. S. J. C. Embezzlement a7id
larceny. Exceptions S. C. Exceptions overruled.

Commonwealth v. James A. Snow. S. J. C. Sodomy. Report
S. C. Judgment on verdict.

Commonwealth v. Charles Herman. S. J. C. Keeping liquor for
sale. Exceptions S. C. Exceptions overruled.

Commonwealth v. William A. Glover. S. J. C. Being accessory
to burglary. Exceptions S. C. Exceptions overruled.

Commonwealth v. Robert Smith. S. J. C. Neglect to give notice
of contagious disease. Exceptions S. C. Exceptions sustained.

Commonwealth v. Daniel O'Brien and another. S. J. C. Lar-
ceny. Exceptions S. C. Exceptions waived.

Commonwealth v. Dennis McShea. S. J. C. Keeping liquor for
sale. Exceptions S. C. Exceptions waived.

Commonwealth v. John Harney. S. J. C. Keeping liquor for
sale. Exceptions S. C. Exceptions overruled.

Commonwealth v. John Greene. S. J. C. Larceny. Exceptions
S. C. Exceptions sustained.

Commonwealth v. James Murray and another. S. J. C. Rob-
bery. Exceptions S. C. Exceptions waived.

Commonwealth v. John Ford. S. J. C. Bu7'glary. Exceptions
S. C. Exceptions sustained.

Commonwealth v. William Maguire. S, J. C. Keeping liquor
for scde. Exceptions S. C. Exceptions overruled.

Commonwealth v. Certain Intoxicating Liquors. (William Ma-
guire, claimant.) S.J. C. Proceeding for forfeiture. Exceptions
S. C. Exceptions sustained.

James Green v. Commonwealth. S. J. C. Error to Trial Justice.
Judgment affirmed.

Freeman A. Tower v. Commonwealth. S. J. C. Error to Trial
Justice. Judgment affirmed.

Martin Byrnes v. Commonwealth, S. J. C. Error to Trial
Justice. Judgment affirmed.

Thomas H. Simpson v. Commonwealth. S. J. C. Error to Trial
Justice. Judgment affirmed.

Commonwealth v. Patrick Clancey. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions waived.

Commonwealth v. Robert Wood. S. J. C. Cruelly overdriving
a horse. Exceptions S. C. Exceptions overruled.

Commonwealth, by Deputy Insurance Commissioner, v. Faneuil

20 ATTOENEY GENERAL'S REPORT. [Jan.

Hall Insurance Company. S. J. C. Petition for iyijunction.
Temporaiy injunction dissolved.

Commonwealth, by Deputy Insurance Commissioner, v. Prescott
Fire and Marine Insurance Compan}'. Same v. National Insurance
Company. Same v. Boylston Fire and Marine Insurance Company.
Same v. Exchange Insurance Company. Same v. Tremont Insur-
ance Company. Same v. Boston Insurance Compan}-. Same v.
Suffolk Fire Insurance Company. Same v. C\i\ Fire Insurance
Company. Same v. Firemen's Insurance Corapan3\ Same v. How-
ard Fire Insurance Company. Same v. Manufacturers' Insurance
Compan3^ Same v. Mutual Benefit Fire Insurance Company.
Same v. Shoe and Leather Dealers' Fire and Marine Insurance
Company. Same v. Union Mutual Fire Insurance Company. Same
V. Bay State Fire Insurance Company. Same v. Eliot Fire Insur-
ance Company. Same v. Merchants' Insurance Company in Boston.
Same v. Boot and Shoe Manufacturers' Mutual Fire Insurance Com-
pany. Same v. Franklin Insurance Company. Same v. Neptune
Insurance Company. Same v. People's Fire Insurance Company.
Same v. Washington Insurance Company. Same v. Mechanics' Mu-
tual Fire Insurance Company. S. J. C. Petitions for injunction.
Perpetual injunctions in force, and affairs of the companies in proc-
ess of settlement by receivers.

Commonwealth, by Insurance Commissioner, v. Massachusetts
Mutual Fire Insurance Company. Same v. North American Fire
Insurance Company. Same v. Lawrence Fire Insurance Company,
of Boston. S. J. C. Petitions for injunction. Perpetual injunc-
tions in force, and affairs of the companies in process of settlement
by receivers.

Attorne}' General v. Old Colony and Newport Railway Company.
Information for injunction under St. of 1865, c. 175. Information
dismissed on motion of Attorney General.

Attorney General, at the relation of the Harbor Commissioners,
V. William T. Hart and others, Trustees. S. J. C. Information
for injunction. Temporary injunction refused.

Commonwealth v. Elizabeth Ring. S. J. C. Keeping house of ill-
fame. Exceptions S. C. Exceptions overruled.

Commonwealth v. James Kelley and others. S. J. C. Assault
and battery and disturbance of the peace. Exceptions S. C. Ex-
ceiDtions waived.

Commonwealth v. James CuUen. S. J. C. Larceny from the
person. Exceptions S. C. Exceptions sustained.

CommouAvealth v. Uriah W. Carr. S. J. C. Keeping liquor for
sale. Exceptions S. C. Exceptions overruled.

John C. Loring, Petitioner. S. J. C. Habeas coipus. Petitioner
remanded.

1874.] PUBLIC DOCUMENT— No. 12. 21

Commonwealth, b}' the Insurance Commissioner, v. Dorchester
Mutual Fire Insurance Compan}'. S. J. C. Petition for examina-
tion of assessment. Petition dismissed.

Commonwealth v. Benjamin F. Bean. S. J. C. Assault and
battery. Exceptions S. C. Exceptions sustained.

Commonwealth v. George Chase and others. S. J. C. Assault
with intent to rob. Exceptions S. C. Exceptions overruled.

Commonwealth v. John Silk. S. J. C. Assault with intent to
murder. Exceptions S. C. Exceptions overruled.

Commonwealth v. Albert R. Whittier. S. C. Contract to recover
assessment for tide-water displaced. Paid before entry of writ.

Commonwealth v. Seth Whittier and another. S. C. Contract
to recover assessment for tide-water displaced. Paid before entry of
writ.

George S. Montague v. Boston and Albany Railroad and others.
S. J. C. Bill in equity to redeem mortgage. "* Not yet heard.

William O. Lynde, Petitioner. S. J. C. Habeas corpus. Peti-
tioner remanded.

James West, Petitioner. S. J. C. Habeas corpus. Petitioner
discharged.

John McGrath, Petitioner. S. J. C. Habeas corpus. Petitioner
discharged.

Commonwealth, at the relation of the State Board of Health, v.
Samuel F. Woodbridge, S. J. C. Information for violating order
of Board of Health. Perpetual injunction ordered.

Commonwealth, at the relation of the State Board of Health,
V. Horatio Locke. S. J. C. Information for violating order of
Board of Health. Perpetual injunction ordered.

Commonwealth v. John Kepper. S. J. C. Forgery. Report S. C.
Judgment on the verdict.

Commonwealth v. Joseph P. Finley. S. J. C. Keeping liquor
for sale. Exceptions S. C. Exceptions waived.

Commonwealth v. John G. Gage. S. J. C. Demanding excessive
hack fare. Exceptions S. C. Exceptions overruled.

Commonwealth v. Perkins G. Williams. S. J. C. Assaidt and
battery. Exceptions S. C. Exceptions waived.

Commonwealth v. Spencer Pettes. S. J. C. Forgery. Excep-
tions S. C. Exceptions overruled.

Commonwealth v. George Ashwood. S. J. C. Keeping liquor
for sale. Exceptions S. C. Exceptions overruled.

Commonwealth v. Matthew Adams. S. J. C. Assault and bat-
tery. Report S. C. Exceptions sustained.

Commonwealth v. Charles H. Foster. S. J. C. Uttering forged
notes. Exceptions S. C. Exceptions overruled.

22 ATTORNEY GENERAL'S REPORT. [Jan.

Commonwealth v. Michael McGorty. S. J. C. Burglary. Ex-
ceptions S. C. Exceptions overruled.

Commonwealth v. John Dowdican. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. John Hutchinson. S. J. C. Cheating hy false
pretences. Report S. C. Judgment on the verdict.

Commonwealth t'. Matthew F. Owens. S. J. C. Liquor nuisance.
Exceptions S. C, Exceptions overruled.

Commonwealth v. Thomas Maloue. S. J. C. Assault and bat-
tery. Exceptions S. C. Exceptions overruled.

Commonwealth v. Philip Goldstein. S. J. C. Burning jproperty
to defraud insurance companies. Exceptions S. C. Exceptions
sustained and verdict upon one count only.

Commonwealth v. John H. McGrad\-. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Michael McManus. S. J. C. Liqtior nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Martin Lynch, S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Roger McTamne3\ S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. John Burke. S. J. C. Liquor nuisance. Ex-
ceptions S. C. Exceptions overruled.

Commonwealth v. George Dowling. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Solomon Aaron. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth, at the relation of the Bank Commissioner, v.
Roxbur}^ Bank. S. J. C. Petition for injunction. Affairs of bank
in hands of receiver settled up and final decree Ma}- 15.

Commonwealth, at the relation of the Bank Commissioner, v.
Farmers' and Mechanics' Bank of South Adams. S. J. C. Petition
for injunction. Affairs of bank still in hands of receiver.

Commonwealth, at the relation of the Bank Commissioner, v.
Winthrop Bank. S. J. C. Petition for injunction. Petition dis-
missed on motion of the Attorne}' General, Ma}' 20.

Commonwealth, at the relation of the Bank Commissioners, v.
Institution for Savings in Taunton. S. J. C. Petition for injunc-
tion. Affairs of the institution still in hands of its directors acting
as receivers.

Commonwealth v. Citizens' Bank of Nantucket. S. J. C. Peti-
tion for injunction. Petition dismissed on motion of the Attorney
General, May 9.

1874.] PUBLIC DOCUMENT— No. 12. 23

Charles G. Coffin and others v. Manufacturers' and Mechanics'
Bank of Nantucket. S, J. C. Petition. Affairs of bank still in
process of settlement b}' the receivers.

Commonwealth, by the Insurance Commissioners, v. Appleton
Mutual Fire Insurance Company. S. J. C. Petition for injunction.
Affairs of company still in hands of "William L. Burt, receiver, for
settlement.

Commonwealth, b}^ the Insurance Commissioners, v. Tremont Mu-
tual Insurance Compan}-. S. J. C. Petition for injunction. Af-
fairs of company in process of settlement by receiver.

Commonwealth, by the Insurance Commissioners, v. Triton Mu-
tual Marine Insurance Company. S. J. C. Petition for injunctio7i.
Dismissed, May 19, on motion of the Attorne}' General.

Commonwealth, by the Insurance Commissioners, v. Pentucket
Mutual Fire Insurance Company. S. J. C. Petition for iiij unction.
Affairs of company settled up by the receiver, and final account
allowed. Final decree July 18.

Commonwealth, by the Insurance Commissioner, v. Shawmut
Mutual Fire Insurance Company. S. J. C. Petition for injunction.
Perpetual injunction ordered, and affairs of company in hands of
receiver. Final account filed.

Commonwealth, at the relation of the Bank Commissioners, v.
Bass River Bank. S. J. C. Petition for injunction. Affairs of
company settled up by the receiver and final decree Dec. 15.

Commonwealth, by the Insurance Commissioners, v. Home Mu-
tual Fire Insurance Company. S. J. C. Petition for injunction.
Affairs of company still in the hands of receiver for settlement.

Commonwealth, b}' the Insurance Commissioner, v. Fayette In-
surance Company. S. J. C. Petition for injunction. Affairs of
the company settled up b}' receiver. Final decree Mav 3.

Commonwealth, b}' the Insurance Commissioners, v. Traders' Mu-
tual Fire Insurance Company. S. J. C. Petition for injunction.
Suit on receivers' bond. Judgment recovered and satisfied.

Commonwealth, by the Insurance Commissioners, v. Hamilton
Mutual Fire Insurance Company. S. J. C. Petition for injunction.
Affairs of company still in the hands of the receivers.

Commonwealth, by the Insurance Commissioners, v. People's
Mutual Insurance Company. S. J. C. Petition for injunction.
Petition dismissed, by agreement, without prejudice and without
costs.

Commonwealth, by the Insurance Commissioners, v. Farmers'
Mutual Fire Insurance Company. S. J. C. Petition for injunction.
Affairs of company still in hands of receiver. Final account filed
and referred to S. Lincoln, Jr., as master in chancery. .

24 ATTORNEY GENERAL'S REPORT. [Jan.

COUNTY OF WORCESTER.

Commonwealth v. Charles T. Ha^-nes et al. S. J. C. Assault
and battery. Exceptions S. C. Exceptions waived.

Commonwealth v. Certain Intoxicating Liquors. (Jeremiah
Fole}', claimant.) S. J. C. Proceeding for forfeiture. Exceptions
S. C. Exceptions overruled.

Commonwealth v. Certain Intoxicating Liquors. (Lawrence
Hemy, claimant.) S. J. C. Proceeding for forfeiture. Exceptions
S. C. Exceptions overruled.

Commonwealth v. Henrietta Wise. S. J. C. Disorderly house.
Exceptions S. C. Exceptions sustained.

Commonwealth v. Henry S. Earn am. S. J. C. Peddling without
a license. Exceptions S. C. Exceptions sustained.

Commonwealth v. Peter Roberts. S. J. C. Keeping liquor for
sale. Exceptions S. C. Exceptions waived.

Commonwealth v. John Taylor. S. J. C. Keeping liquor for
sale. Exceptions S. C. Exceptions overruled.

Commonwealth v. John Taylor. S. J. C. Liquor nuisance. Ex-
ceptions S. C. Exceptions sustained.

Commonwealth v. Augustus Legass}". S. J. C. Consenting to
illegal employment of minor child. Exceptions S. C. Exceptions
overruled.

Commonwealth v. Michael Hogan. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions sustained.

Commonwealth v. Louis J. Elwell. 8. J. C. Keeping liquor for
sale. Exceptions S. C. Exceptions waived.

Commonwealth v. Certain Intoxicating Liquors. (Joseph Chase
and Benjamin D. Dwinell, claimants.) S. J. C. Proceeding for for-
feiture. Exceptions S. C. Exceptions overruled.

Commonwealth v. Certain Intoxicating Liquors. (Ephraim D.
Wetherbee, claimant.) S. J. C. Proceeding for forfeiture. Ap-
peal S. C. Judgment set aside.

Commonwealth v. Patrick McNamee. S. J. C. Liquor nuisance.
Exceptions S. C. Exceptions overruled.

Commonwealth v. Peter Oaks. S. J. C, Disturbing peace. Ex-
ceptions S. C. Exceptions overruled.

Commonwealth v. George F. Krumsick. S. J. C. Violation of
Lord's Day. Exceptions S. C. Exceptions overruled.

SUPREME COURT OF THE UNITED STATES.

Ilolyoke Water Power Company v. Theodore Lyman and others,
Commissioners ou Inland Fisheries. Error to S. J. C. Judgment
affirmed.

1874.] PUBLIC DOCUMENT— No. 12. 25

CIRCUIT COURT OF THE UNITED STATES.

Thomas Baring and others v. Charles S. Bradley and others.
BUI of interpleader. Not yet heard.

George Wheatland, Jr., v. Eben D. Jordan. Bill in equity. Not
yet heard.

DISTRICT COURT OF THE UNITED STATES, MASSACHUSETTS DISTRICT.

Massachusetts Glass Company, in bankruptcy. Claim for tax.

Tax not yet collected.

Independent Insurance Company, in bankruptcy. Claim for tax.

Tax collected.

ATTORNEY GENERAL'S REPORT.

[Jan.

TABLE

Shoiving the Numljer of Criminal Cases pending on questions of Law
in the Supreme Judicial Court during the year 1873, and the dis-
position thereof hy Counties.

COUNTIES.

a
6

.a
u 2

<2 «

g a

5
1 1

1 i

5 .

■a
■§ I

1 1

3
=3

Berkshlke, .

Bristol,

Essex, ....

Franklin, .

Hampden, .

Hampshire,

Middlesex,

Norfolk, .

Plymouth, .

Suffolk, .

Worcester,

3
15
15
1
6
9

2
8

13
1
6
6

15
6
3

10
5

1
1

Totals, .

137

107

1874.]

PUBLIC DOCUMENT— No. 12.

TABLE

Showing the Number and Charade?' of Criminal Cases pending on
questions of Law in the Supreme Judicial Court during the year
1873, and the disposition thereof.

■s •=■

OFFENCES.

-3
a

<s 1

.5 "3

■6

■g ^

"g s

— ^ ^

-.->

{»

r§ g

■§ a

^ *o

g 0

Adultery,

Assault and batteiy, ....

Assault, indecent, ....

Assault on an officer, ....

Assault with intent to murder, .

Assault with intent to ravish.

Assault with intent to rob, .

Breaking and entering a building, .

—

Burglary,

Burglary, accessoiy to, . . .

Burning property to defraud insur-

ance companies, ....

Concealing mortgaged personal prop-

erty,

—

Contagious disease, neglect to give

notice of,

Cruelty to animals, ....

Defacing a building, ....

Disorderly house, ....

Disturbing peace, ....

—

Drunkard, common, ....

Embezzlement,

False pretences, cheating by,

Forgery,

Forged instrument, uttei'ing of, .

Habeas corjius,

Hack fare, demanding excessive.

_ ■

House of ill-fame, keeping of, .

—

Larceny,

Larceny from the pei'son, .

Larceny in a building,

Liquor, common seller of, .

Liquor, illegal transportation of.

Liquor, keeping it for sale.

—

ATTORNEY GENERAL'S REPORT. [Jan. 74.

Table shoiving the Number and Character of Criminal Cases, &c.

Concluded.

OFFENCES.

ploy-

Liquoi" nuisance,.

Liquor nuisance, aiding in maintain

ing of, .
Liquor seizure, .
Liquor, single sale of.
Lord's Day, violation of,
Malicious mischief,
Minor, consenting to illegal em

ment of, .
Murder, right of new trial,
Obstructing highway,
Peddling without a license.
Perjury, . .
Poison, mingling it with food.
Polygamy, ....
Robbery, ....
Sodomy, ....

Total,

1
12
1
1
1

1
1
3
1
1
1
1
1
1

137

1
1

107

APPENDIX.

ABBITBATOB'S AWABD.

No. 32 Pemberton Square, Boston, December 6, 1873.

To the Honorable Charles R. Train, Attorney General, and the Honorable Robert
C. WiNTHROP, President Massachusetts Historical Society.

Gentlemen : — Chapter eighty-one of the Resolves of the year
1871 provides as follows : " That the attorney general be authorized
to adjust the controversy between the Commonwealth and the Mas-
sachusetts Historical Societ}' on these terms, namely : that the
society surrender to the Commonwealth all the documents called
the Hutchinson Papers, received by the society from Secretary
Bradford ; the same to be identified by an arbitrator mutually
selected, in ca'se they cannot be otherwise agreed upon." The
attorney general has so adjusted said controversy^, and the par-
ties failing to agree upon the papers to be surrendered, Robert S.
Rantoul has been mutuall}' selected as arbitrator.

The mass of papers sought by the Commonwealth to be reclaimed
through these proceedings, and which the society desires to restore,
has been variousl}' characterized as follows : —

The first mention in point of time which we have of any portion
of them occurs in an entry upon the society's journal, dated October
28, 1819, which is in these words : Voted, "That the letters found
among the papers of Governor Hutchinson, and communicated by
Mr. Bradford, be referred to the publishing committee."

January 25, 1820. Mr. Bradford sent a letter resigning his mem-
bership of the society, in which he says, " I send some more old
papers selected from Hutchinson's files, some of which have not
been published, and most of which are of an early date and valuable
for the purposes of the society. Anything that I ma}' collect in
future worthy of being preserved I shall cheerfully transmit."

At the society's next meeting, January 27, 1820, Mr. Bradford
sent a letter saying, " I send you some very old letters and papers
selected from the files left by Governor Hutchinson, with a list of
them. Some of them have Ijeen printed in Hazard and some in

32 ATTOENEY GENEKAL'S REPOKT. [Jan.

Hutchinson. But many of them were never printed, and are vahi-
able. I have obtained leave of tlie council to present them to the
Historical Society. They are no part of the files of the secretary's
office." The society, in their vote of that date, says, " The addi-
tional letters found by Mr. Secretary Bradford among the papers of
Governor Hutchinson, and presented to the society b}' the permis-
sion of the governor and council, were referred to the publishing
committee."

At the next meeting, April 27, 1820 : " The additional Hutchin-
son Papers, presented by Mr. Secretary Bradford, were referred to
the publishing committee," by vote of the societj-.

In a report which Mr. Secretary Bradford made to the legislature
by its own order, February 13, 1821, " On the present condition of
the public records and documents belonging to the Commonwealth,"
we find the following : —

" Several files of papers saved from the riot at Governor Hutch-
inson's house, some of them of a private nature, and some of them
public documents, collected by him, probably, as materials for his
History of Massachusetts, and a volume of State Papers which he
had published. These not being considered as belonging to the
government, or as any part of the records of the Commonwealth or
ancient colon^^ or province, some of them, valuable chiefl}' for their
antiquity, were selected by the undersigned, with the consent and
approbation of the supreme executive, and deposited in the library
of the Massachusetts Historical Society, a list of them being first
made and kept in the secretary's office." Neither of the lists re-
ferred to has been found.

August 26, 1823, it was voted by the society, " That the addi-
tional Hutchinson Papers, received this day from the secretar}' of
state, be referred to the publishing committee."

In the tenth volume, second series of the societj^'s printed collec-
tions, page 181, published 1823, occur these words : " B3' direction
of the governor and council of this Commonwealth, the secretary of
state has deposited with the Massachusetts Historical Society' a
large collection of documents, public and private, which appear to
have been used by the late Thomas Hutchinson, Esquire, governour
of his majesty's province of Massachusetts Bay, in the composition
of that histor}', which will probably continue to be the best narra-
tive of any of the settlements on this continent. Several of these
papers are printed in the collection of papers by Hutchinson, some-
times called the third volume of his history.

" Those here printed have been transcribed with great care bj''
gentlemen of experience in the chirograph}' of the diflerent seasons

1874.] PUBLIC DOCUMENT— No. 12. 33

of their date. In succeeding volumes other pieces may enrich our
collections."

In the memoir of the societ}', prepared by appointment by Rev.
Dr. Jenks for publication in the "American Quarterly Register" for
1838, and afterwards incorporated in the societ3''s printed collec-
tions, it is said that, "the zeal of Alden Bradford, Esq., LL.D.,
one of the few survivors among its earliest members, and a large
contributor to the history of his country, as well as to the collec-
tions of this society', induced him to obtain from the government of
the State permission to extract from the Hutchinson Papers in the
secretary's office such as the societ}' might deem worthy of publica-
tion."

It appears, then, that the collection for which we seek consisted
of letters and papers, some of them of a private nature, and some
of them public documents ; that it was a large collection ; that its
matter was of early date, some of which had been printed in Haz-
ard, some in Hutchinson, and much not at all ; that it was such as
Governor Hutchinson might have used as material for his two vol-
umes of Massachusetts History, and for his volume of State Papers,
sometimes called the third volume of his history, and that it was
such as Mr. Secretar}' Bradford and the state authorities of the day
thought might be spared from the secretary's office. No vote author-
izing the transfer of these papers is found on the records of the ex-
ecutive council or elsewhere in the state house.

The outbreak which scattered Hutchinson's library occurred at
his house near North Square on the evening of August twentj'-
sixth, seventeen hundred and sixt^^-five.

He left the country, superseded by General Gage, June first, seven-
teen hundred seventy-four.

The first volume of his history appeared seventeen hundred sixty-
four, and covered the period embraced between the settlement of the
colony and sixteen hundred ninety-two.

His second volume appeared seventeen hundred sixty-seven, and
covered a succeeding period, ending with the 3'ear seventeen hundred
and fort3'-nine. His volume of State Papers, intended to support
with documentary proofs the authorit}' of his first volume of history,
appeared seventeen hundred and sixty-nine, and covered papers
dated between sixteen hundred and twent^'-nine and sixteen hundred
and eighty-nine.

He contemplated the publication of a second volume of papers,
which never appeared, and which was in like manner intended as an
appendix to his second volume of history.

He also left in manuscript, afterwards printed, a volume of history,
5

34 ATTORNEY GENERAL'S REPORT. [Jan.

covering the period from seventeen hundred and fortj^-nine to seven-
teen hundred and seventy-four.

His famil}' had been domiciled here since sixteen hundred and
thirt^'-four. He says that he had himself spent thirty years in
collecting these historical materials, and that " man}- ancient records
and papers came to me from my ancestors, who, for four successive
generations, had been principal actors in public affairs, among the
rest a manuscript history of Mr. William Hubbard, &c. I made
what collection I could of the private papers of others of our first
settlers."

That the mass of such material collected at Hutchinson's house
was ver}' great, and that a very considerable quantity of it must
have found its way to the state house, in consequence of the con-
fiscation Acts passed and the vigorous measures adopted in enforcing
them, will not be questioned. His friend and neighbor. Dr. Andrew
Eliot, not only made his house a haven for these scattered treasures,
but public notice was advertised, requesting all persons into whose
hands they might fall, to return them there. "When Lieut.-Gov.
Hutchinson's house was pillaged, and pulled to pieces b}^ an infu-
riated mob, his books and MSS. were thrown into the streets, and
were in danger of being completely destroyed. Dr. [Andrew]
E.[liot] made every exertion to save them. Several trunks of MSS.,
among them the second volume of the History of Massachusetts
Ba}', were preserved by his care and attention, and he spent much
time in assisting to arrange them." — Eliot's Biographical Diction-
ary.

The dates at which the second volume of the history and the
volume of State Papers appeared, both being subsequent to the dis-
persion of the library in seventeen hundred and sixL3'-five, as well
as the fact that Hutchinson contemplated a second volume of State
Papers and a third of histor}', make it probable that such historical
material of value in this connection as reached Dr. Eliot, must have
been by him restored to Hutchinson before the flight of the latter
from the country', and have thus found its way to the state house
upon the confiscation of his literar}" effects. The manuscript of his
second volume of historj', stated by' Hutchinson to have been thrown
into the street and to have been rescued by Dr. Eliot, was so re-
stored,.and is now at the state house.

That the sacking of the library was thorough, and that Hutchin-
son lost public papers as well as private, appears from his letter of
August thirtieth, seventeen hundred and sixty-five. He writes, but
four days after his loss, to Richard Jackson, Esquire : " Besides my
plate and family pictures, household furniture of every kind, my
own, my children's and servants' apparel, they carried off about

1874.] PUBLIC DOCUMENT— No. 12. 35

£900 sterling in money, and emptied the house of everything what-
soever, except a part of the kitchen furniture, not leaving a single
book or paper in it, and have scattered or destro^-ed all the manu-
scripts and other papers I had been collecting for thirty years to-
gether, besides a great number of publick papers in my custody."

That the quantity which found its way to the state house,
whether through Dr. Eliot's care and pains or otherwise, was con
siderable, appears from the letter of Samuel Dexter, Esq., of Ded-
ham, to whom had been committed the custody of Hutchinson's
literary effects in the hands of the Commonwealth. He writes,
October eighteenth, seventeen hundred and eighty-three, that he has
them " deposited in a large box, weighing, with its contents, near
one hundred pounds."

That the several trunks, full of manuscript, saved by Dr. Eliot,
were b}' no means all that Hutchinson lost, but that other material
which may have come to the state house after Hutchinson's flight,
eluded the care of his friend and neighbor, appears from his state-
ment in the preface to the second volume of histor}', that " the loss
of many papers and books, in print as well as manuscript, besides
my family memorials, never can be repaired. For several da}'S I
had no hopes of recovering any considerable part of my history,
but, b}' the great care and pains of my good friend and neighbor,
the Rev. Mr. Eliot, who received into his house all my books and
papers which were saved, the whole manuscript, except eight or ten
sheets, were collected together, and although it had lain in the
streets, scattered abroad several hours in the rain, 3'et so much of it
was legible as that I was able to supply the rest, and transcribe it.
The most valuable materials were lost, some of which I designed to
have published in the appendix."

Trunks containing letter-books and papers were seized at Gov.
Hutchinson's house at Milton Hill, after his flight, by the provincial
congress of Massachusetts.

" Committee of Safety.

•' April 29, 1775.
'■'Voted, That orders be given to General Thomas for seizing Governor
Hutchinson's papers."

"May 1, 1775.
'■'■Voted, That General Thomas be and he hereby is directed and em-
powered to stop the trunks mentioned to be in Col. Taylor's hands, until
this committee sends some proper persons to examine their contents."

" Oentlemcn : — In consequence of directions from the committee of
safety, I sent an officer, on whom I could depend, to the honse of Gov-
ernor Hutchinson, who brought oft' all the papers he could find in that

36 ATTORNEY GENERAL'S REPORT. [Jan.

house ; bi;t I was informed that Col. Taylor, of Milton, had lately taken
several trunks out of the governor's house, not many days ago, in order
to secure them from being plundered. I immediately sent another mes-
senger to Col. Taylor for all the papers that belonged to Governor'
Hutchinson which he had in his possession. He sent me for answer, he
did not know of any j^apers that belonged to said Hutchinson; but just
now comes to inform me that there are several trunks in his house, which
he took as aforesaid, which he expects will be sent for very soon. I sus-
pect there may be papers in said trunks, and if it is thought proper, two
or three judicious jjersons be sent to break open and search for jiapers, he
will give them his assistance. This, gentlemen, is submitted to the con-
sideration of the honorable committee.

" I have, gentlemen, the honor to subscribe myself, your most obedient
humble servant,

"John Thomas.

" RoxBURY Camp, May 2, A.D. 1775."

" May 15, 1775, A. M.
'■'■Ordered, Tliat Mr. Fisher, Col. Field and Mr. Bullen be a committee to
examine the letters of Governor Hutchinson, lately discovered, and report
to this Congress such letters and extracts as they think it will be proper to
publish."

" May 16, 1775, Afternoon.
"■Ordered, That Mr. Freeman and Doct. Holten be added to the commit-
tee appointed to examine Hutchinson's letters."

" May 29, 1775.

" It being expected that the present Congress will be dissolved this night,
and hearing that one volume of copies of Mr. Hutchinson's letters are in
the hands of Capt. McLane, at the upper paper mills in Milton, which
volume may be of use to this colony, if in the hands of the Provincial
Congress ; therefore

" Resolved, That the Rev. Mr. Gorden, of Roxbury, be desired and em-
powered to receive from said Capt. McLane all such eoi^ies as are in his
hands, or in any other hands, and to be accountable to the pi'esent or some
future Congress for the same."

Mr. Secretary Bradford, and those state oflicials with whom he
advised, ma}' well have supposed that of this large mass of manu-
script once in the possession of Hutchinson, which he found at the
state house, letters written to or by Hutchinson only possessed a
political value, and that the rest, being of purely historical or anti-
quarian interest, might find a fit resting-place with the Historical
Societ}'. This view finds countenance in the votes and proceedings
had by the authorities of the Province at the time of Hutchinson's
departure. It was primarily these letters, written b}' or addressed
to Hutchinson, and which it was supposed were well calculated to

1874.] PUBLIC DOCUMENT— No. 12. 37

convict the writers of hostility to the rights and liberties of America,
which were vigorously sought out and vigilantly preserved. Such,
indeed, are the contents of the three volumes of " Hutchinson's
Correspondence," from 1741 to 1774, retained at the state house by
Mr. Secretar}' Bradford, and subsequently bound, and which, with a
fourth volume containing the manuscript history above alluded to
as saved by Dr. Etiot, and little else, comprise all that now remain
at the state house of the collection of papers once in Hutchinson's
possession.

" In the House of Representatives,
" August 18, 1775.
'■'•Ordered, That Colonel Orne and Mr. Gushing, with such as the honor-
able board shall join, be a committee to consider what is proper to be
done with the letters of the late Governor Hutchinson, and how they shall
be i^reserved.

" Sent up for concurrence. Jas. Warren, Sj'icaJor.

" In Council, August 19, 1775.
"Read and concurred, and John Adams, Esq., is joined.

" S. Adams, Se&y.''''

"The committee above named report that it is of great importance that
the letters and other papers of the late Governor Hutchinson be carefully
preserved, as they contain documents for history of great moment, and
that evidence in the handwriting of a man whose nefarious intrigues and
practices have occasioned the shedding of so much innocent blood, and
brought such horrid calamities on his native country, may be preserved
for the full conviction of the present and future generations ; and, there-
fore, that such of the letters and pajsers aforesaid as are not now in the
custod}' of the Honorable Samuel Dexter, Esqr., of Dedham, be delivered
to him, and, together with those already under his care, faithfully kept by
him until the further order of this Court, and that such of them be pub-
lished from time to time as he shall judge proper.

"(Signed) John Adams, j5er order."

" Commonwealth of Massachusetts.

"In the House of Representatives,
" October 14, 1783.
^^ Whereas, In the year 1775 certain letters were found in the mansion
house of Thomas Hutchinson, Esq'r, late governor of the province of the
Massachusetts Bay, written by the said Hutchinson to persons of public
character and others in England and elsewhere, which letters tend to the
discovery of the plans which had been secretly laid for the destruction of
the rights, liberties and privileges of the then Bi'itish Colonies ; and,
whereas, the said letters were committed to the care of the Honorable
Sam'l Dexter, Esq'r, with permission to the Rev'd Doctor William Gordon
to take and select such of them as he should judge proper for immediate
publication ;

38 ATTORNEY GENERAL'S REPORT. [Jan.

" A7id ivhcrcas, It is highly expedient that papers so adapted as the said
letters aj^pear to be to max'k the leading princijiles and characters in the
late happy American Revolution should be safely ke^jt among the archives
of this Commonwealth, that so the historian and others may avail them-
selves thereof, under the direction of the General Court ;

" Resolved, That the said Sam'l Dexter, Esq'r, Dr. William Gordon, and
all others who are jpossessed of any of the said letters of the said Thomas
Hutchinson, Esq'r, be and they are hereby required to return the same
into the Secretary's office without delay.

'■'■Ordered, That the Secretary serve the- said Saml. Dexter, Esquire, and
'Doct'r William Gordon with an attested cojjy of the foregoing resolution,
and also to publish the same in one of the Boston, the Salem, Worcester
and Springfield newspapers,"

" In the House of Representatives,
" October 14, 1783.
Ordered, That the Secretary be and he hereby is directed foithwith to
make application to the Honorable Samuel Dexter, Esq., and Reverend
William Gordon, Doctor of Divinity, for the letters of the late Governor
Hutchinson, which were found within the State, after he left the same, and
to receive the same letters from an}^ person in whose possession they may
be, and to iile them carefully among the papers of this State.

" Sent up for concurrence. Tristram Dalton, Sp'lc'r.

" In Senate, Octorer 15, 1783.
" Read and conciu'red as taken into a new draft.
" Sent down for concurrence. S. Adams, Presid't.

" In the House of Representatives,
" October 16, 1783.
" Read and concurred. Tristram Dalton, SifJc'r.

" Approved. John Hancock."

But we know something in detail of the papers composing Brad-
ford's donation to the Societ3\

In Volume IX., second series of the Society's collections, a list of
fifteen items is acknowledged under the head of " Old letters and
papers from Governour Hutchinson's MS. Collection " ; given by
" Alden Bradford Esqr., Secr'y of State."

In the next number, Volume X., of the same publication, occurs
the acknowledgment already quoted, followed by the production in
full of four other papers. The next, being Volume I., of the third
series, opens with this announcement :

" Hutchinson Papers.
" The publication of the series of documents, begun in our last volume,
under this title, is now continued."

1874.] PUBLIC DOCUMENT— No. 12. 39

And this bead-note is followed l\y the printing in fall of some sixty
or more papers indexed under fifty-five titles, two of which papers
had been acknowledged in the list of fifteen items above referred to.

Volume IX., second series, bears date eighteen hundred and
twenty-two, and was actually in print earl}' enough in that year to
be acknowledged b}'- a corresponding society in Philadelphia, May
seventh, eighteen hundred and twenty-two.

Volume VIII., preceding it, was printed in eighteen hundred and
nineteen, being acknowledged at Philadelphia, February, eighteen
hundred and twenty.

Volume X., next succeeding it, bears date eighteen hundred and
twent^'-three.

Volume I., third series, next issued, eighteen hundred and twenty-
five, and the imprint on Volume II. indicates that no other volume
was issued after that, until eighteen hundred and thirty.

Mr. Bradford was Secretary of the Commonwealth from eighteen
hundred and twelve, to eighteen hundred and twent3'-four.

His first donation appears upon the Society's records October
twent^'-eight, eighteen hundred and nineteen.

Volume VIII., second series, was in print before the end of that
year. His donations and the references of them to the publication
committee cease with the vote of August twenty-sixth, eighteen
hundred and twenty-three. And it is in Volume X., second series,
dated eighteen hundred and twenty-three, but not acknowledged at
Cambridge until July twelfth, eighteen hundred and twent^^-four,
and in Volume I., third series, dated eighteen hundred and twent}^-
five, that the publication in full of Hutchinson Papers occurs.

On the morning of November tenth, eighteen hundred and twenty-
five, occurred the disastrous fire in the office of the Honorable James
Savage, in Court Street, which destroyed valuable manuscripts be-
longing to the Society.

Mr. Savage was a member of the publication committee for Vol-
umes VIII. and X. of the second series, and I. of the third series, and
as such had the right, denied to other members, of taking manuscripts
into his private keeping.

Of the papers covered by the list of fifteen items — admitted to have
come from Bradford, — though referred to the publication committee
but two were printed. One paper in the list had been alread}' printed
in Hazard, and one in Hutchinson's first volume of history. These
papers, taken in connection with the four from Bradford printed in the.
next issue, cover dates* between sixteen hundred and twenty-five and
seventeen hundred and seven. Some of them are private letters,
some of them are public official documents.

The same general character pervades the papers published under

40 ATTOENEY GENERAL'S REPORT. [Jan.

fiftj'-five titles in Volume I., third series, which cover dates ranging
between the years sixteen hundred and fortj'^-one and seventeen
hundred and seventy. The several papers given by Bradford, which
had been printed in Hutchinson's third volume of State Papers, are
not among these.

The Massachusetts Historical Society presents for examination a
single mass of papers. This mass, containing, with a few scattering
exceptions, all the Hutchinson Papers now known to remain in its
possession, is comprised in three bound volumes, containing four
hundred and sixty-six folios, which may be subdivided among not
far from two hundred and fifteen separate documents. These are
mostly- in manuscript, and are lettered " Hutchinson's Papers."
They are arranged, as is the usual practice with miscellaneous masses
of papers whose onlj- bond of unit}' is a common source, with no
reference to authorship or subject-matter, but, with a single excep-
tion, presentl}- to be noticed, in the chronological order of their dates.

This mass of papers was arranged, indexed and procured to be
bound up by the Honorable B. R. Nichols, pursuant to a vote of the
Society, April twentj'-fifth, eighteen hundred and twenty-two, re-
questing him " to cause the whole or a part, at his discretion, of the
Hutchinson Papers to be bound." And he was thanked at a meet-
ing held August twent3--sixth, eighteen hundred and twent^'-three,
" for his valuable labors in arranging the Hutchinson Papers."

At that meeting, Bradford's last donation was referred to the pub-
lishing committee. Bradford had ceased to be a member of the
Society. For three years no gift from him had been acknowledged.
If he had forwarded this supplementary^ gift to Mr. Nichols while
the mass was in the hands of the binder, instead of sending it to the
rooms of the Society, we might expect that some of the manuscripts
of this gift most worthy of preservation would have been included
within the covers, and that the whole donation would have been
announced and acknowledged when the bound mass and the other
papers, if any, came before the Societ}'.

Accordingly, we are not unprepared to find that after the third of
these bound volumes was completed and indexed, but before the
lettering by the binder, a few documents were added out of their
chronological places in the mass, and indexed in violation of the
alphabetical order previously' adhered to.

The contents of this mass are as heterogeneous as are the papers
, acknowledged to be of Bradford's gift. They range in date from the
letter of March third, sixteen hundred and twent^'-five, already cited
as printed in second series, Volume X., to a letter about the Marsh-
pee Indians addressed to Governoi' Hutchinson five years after the
loss of his library, and also printed in Volume I., third series, but

1874.] PUBLIC DOCUMENT— No. 12. 41

nearly the whole of them bear date prior to the year seventeen
hundred.

Among them are two copies, one in print and the other in writ-
ing, of the demand made by the citizens of Boston upon Sir Edmund
Andros, at Fort Hill, which demand is found printed in Hutchinson's
first volume of History. This document is acknowledged in Volume
VIIL, second series, printed in eighteen hundred and nineteen, as
the gift of Bradford, but the vote of October twenty-eighth, eighteen
hundred and nineteen, referring the letters found by Bradford among
the papers of Governor Hutchinson, and communicated to the
Society to the publishing committee, calls for others, since this
document in duplicate would not be called " letters," nor, being
already in print, would it be referred to the publishing committee.

The mass exhibited further contains, scattered through it, all the
documents covered by the list of fifteen items acknowledged as the
gift of Bradford, and also the four documents acknowledged and
printed in Volume X., second series as from Bradford. It contains
four documents written after the destruction of the Hutchinson
library. Two-fifths of its contents bear marks of the handwriting
of Alden Bradford, in some instances so concealed in the process of
binding as to show that the indorsements, comments and annota-
tions made by him were made before the papers passed through that
process.

The papers acknowledged as from Bradford do not include all
bearing his handwriting, nor do those bearing his handwriting in-
clude all the papers acknowledged to have been of his donation.

The presence of consecutive numbers on some of these documents
makes it probable that they had been filed by numbers and lists
made of them, while the absence of most of the numl^ers which the
sequence calls for, makes it probable that Mr. Nichols did not find
it in his discretion to cause the whole of the donation to be bound,
as, in the discretion of the publishing committee, but a small fraction
of the list of fifteen had been thought worth printing.

The mass contains some thirty papers printed in Hutchinson and
a few in Hazard. It contains all of the Hutchinson Papers printed
in Volume I., third series, under fifty-five titles, which are now known
to be in existence ; about half of these are not to be found. The
fact already stated of the occurrence of a fire in the oflSce of a mem-
ber of the publication committee at about the time when this volume
was in press, affords perhaps the readiest explanation of their loss.

If there had been in the hands of the Society at the time of Brad-
ford's gift a mass of unbound Hutchinson Papers, that gift might
naturally have been merged therewith, and the records might be ex-
pected to bear witness to the fact. On the contrary, there is no
6

42 ATTORNEY GENERAL'S REPORT. [Jan.

allusion to the existence of a class of papers to wliicli these could be
referred. They were at once accepted, and treated as a new acces-
sion to the Society's wealth. They were not dispersed or filed
according to subject, authorship or date, but were at once referred
for publication, and Hutchinson Papers were at once committed to a
latel}' elected member for arrangement and binding. Up to the date
of Bradford's gift no proposition for the printing, no proposition for
the binding of Hutchinson Papers had ever engaged the Society's
attention. Fourteen members were then living who took part in its
formation, or joined it as early as seventeen hundred and ninet^'-three.

Here, then, we have a mass of papers called into being by the gift
of Bradford, put together in its present shape by the Society at that
time, and treated by the Societ}' from that time forward as a unit,
and possessed of ever}' known characteristic of the mass for which
we are seeking. If it should appear that there were incorporated
with this mass, in the binding, papers other than those given b}'
Bradford, then the Society would be called upon to designate and
reclaim such papers.

There is no ground for the belief that the Society ever had such
papers which may have been so incorporated, unless it be those
described by Dr. Belknap, in seventeen hundred and ninet^'-two, as
" originals of Hutchinson's Collection." Record and tradition, cat-
alogue and donation-book are alike silent on the existence of an}-
others. A single mention of these originals in a memorandum of
Dr. Belknap would not be ground for concluding that, if they are
not now to be traced elsewhere, therefore they are incorporated in
the bound volumes in question. The memorandum of Dr. Belknap
covers forty-four items of manuscript in the Society's possession in
seventeen hundred and ninety-two. A large part of these are not
now to be found.

I suggest a possible explanation of the fate of these " originals."

The Honorable James Winthrop, of Cambridge, was one of five
original promoters of this Society. He is spoken of in Dr. Palfrey's
semi-centennial address as one who was " in possession of original
historical materials thought to be of value," and he is uniformly
treated as one from whom much was expected. These five gentle-
men each invited a friend to join them, and the group of ten thus
formed, recognized ever since as the founders of the Society, pro-
ceeded at an early day to present lists of the contributions each
proposed to make to the common collection. Nine of these lists
have been examined. Of these, Mr. Winthrop's is distinguished for
the paucity and comparative insignificance of its items, and for noth-
ing else, unless the first item on it covers the same "originals"
which form the first item on Dr. Belknap's memorandum made at

1874.] PUBLIC DOCUMENT— No. 12. 43

the same period. As at first written it contained a promise of
pamphlets and four gifts, the second, third and fourth of which were
manuscripts. The first gift is entitled " Governor Hutchinson's col-
lection of papers." If this gift was the printed volume of State
Papers, sometimes called Hutchinson's third volume, then the So-
ciety started with two copies of that book, one of which was the
contemporaneous gift of a founder, and received another copy by
gift, January twenth-seventh, eighteen hundred and seven. Neither
catalogues nor records indicate such redundanc3^

If, on the other hand, Judge Winthrop gave a volume of Hutchin-
son originals, that fact explains the first item in Dr. Belknap's list
of manuscripts in the cabinet of the Society in seventeen hundred
and ninet3'-two, as well as the paucity of Judge "Winthrop's list.
No other of the nine lists of earl}- donations throws light upon this
question. The tenth, that of Dr. Baj'lies, is wanting.

The early catalogues afford no help. But two were in print before
eighteen hundred and twenty-two — three, that of seventeen hun-
dred and ninety-six and that of eighteen hundred and eleven. Nei-
ther these nor the various catalogues written out from time to time
indicate the presence of this manuscript collection. Catalogues in
those early days were made with the purpose of guiding members to
the use of books kept for circulation on the shelves rather than as an
exhaustive inventory of the Society's hidden treasures.

Among the entries of books and manuscripts taken out, — and it
will be remembered that manuscripts could be taken out onl}- by
members of the publication committee, — is the following, under the
name of the Hon. James Savage : —

"Oct. 27, 1825. Hutch.Hist.of Mass.,vol 3. ) Lost in the

2d vol. Winthrop's Hist. N. E MS. i fire."

The date of the fire in which perished the treasurer's accounts
from the foundation of the Society, as well as the second volume of
Winthrop's manuscript histor}-, the nineteenth volume of the Trum-
bull manuscripts, and much valuable printed matter, was November
tenth, eighteen hundred and twenty-five.

May first, eighteen hundred and twenty-six, six months 'after the
disaster, in a letter to Honorable John Davis, describing the
Societ3''s losses, and again four months later, in his annual trea-
surer's report to the Society, August twent^^-niuth, eighteen hundred
and twent3'-six, Mr. Savage speaks of the lost volume in identicall}'
the same words, as "the volume of Hutchinson's curious collections."
If these words were selected to conve}' a sense of irreparable loss
lingering through a considerable interval of time in the mind of Mr.
Savage, they would seem to be aptly chosen. But the}' do not apply
so well to the destruction of a printed volume v»hich a few weeks

44 ATTORNEY GENERAL'S REPORT. [Jau.

time and a small sum of money might be expected to replace, and of
which the Society had received three copies b}' gift in the first six-
teen years of its existence, and has now two other copies given since
eighteen hundred and fift}^, and part of a third co'pj given in
eighteen hundred and thirt3'-seven. Uufortunately the Belknap
memorandum was not brought to the attention of the Society before
Mr. Savage's memory had felt the touch of decay's effacing finger.

But again, it is not impossible that these " originals," — for we
have no means of estimating their quantity, — are all in existence
to-da}' in the cabinets of the Society. Besides the Winthrop copy
of the charter, which is the first paper printed in Hutchinson's col-
lection and some of the Higginson manuscripts which immediately
follow it in that volume, the Societ}' has bound up with its miscel-
laneous maiuiscript papers a number of originals of letters printed
in Hutchinson's collection, dated from sixteen hundred and thirt}'-
nine to sixteen hundred and sixt3'-one, which, so far as I can learn,
may all liave been in its possession at the date of Dr. Belknap's list,
in seventeen hundred and ninet3--two.

The controvers}' between the parties to this arbitration dates from
a letter written by Mr. Secretary Palfrey, January- first, eighteen
hundred and fortj^-six. There were then continuing in the fellow-
ship of the Society, nine members who joined it before Bradford's
gift in eighteen hundred and nineteen, and six others who joined it
before August, eighteen hundred and twent3'-three. One of them
was the Honorable B. R. Nichols, and the latest survivor of them
was the Honorable James Savage, whose membership began in
eighteen hundred and thirteen, who was most familiar with the
volumes bound by Mr. Nichols, as frequent traces of his handwrit-
ing attest, who was of the publication committee which culled them
for printing, and who was present when Mr. Nichols was thanked
for arranging them.

Mr. Bradford's membership covered the period between seventeen
hundred and ninety-three and eighteen hundred and twenty.

The traditions of the Society have been unbroken from the begin-
ning, and if anj' Hutchinson Papers, previously in possession of the
Society, and derived from other sources, had been incorporated by
Nichols into the three volumes in question, there were those in the
Society in eighteen hundred and forty-six, when the whole mass was
claimed by the State, and for some years thereafter, who could have
established the fact, if they could not have designated the papers.
These gentlemen, second to none in their anxiet}^ to retain in the
Society's hands by all honorable means the papers demanded by the
State, if they could have designated any among the mass, which they
knew or believed to have been in the Society's cabinet before eighteen

1874.] PUBLIC DOCUMENT— No. 12. 45

hundred and nineteen, would gladl}- have done so. But the}' have not
done so. And from the date of the State's claim down to the pro-
duction of the Belknap memorandum, twenty years later, no proof
was adduced of the supposed existence of Hutchinson Papers in the
hands of the Society before Bradford's gift, which papers might have
become incorporated therewith, but the claim of the Society in that
behalf was purely conjectural.

I, therefore, find that the three volumes exhibited to me, and let-
tered

" Hutchinson's Papers."

Vol. Vol. Vol.

I. II. III.

1-162. 1G3-319. 320-466.

respectively, contain all the documents called the Hutchinson Papers,
now known to be in the possession of the Massachusetts Historical
Society, which are known to have come into its possession through
the hands of Alden Bradford ; that, whatever else the}' contain, if
anj'thing, having been voluntaril}' added by the Societ}' with full
knowledge of the facts, must be reclaimed by the Societj- ; that said
volumes are not proved to contain anj' Hutchinson Papers which did
not so come into its possession ; that a very extended and thorough
investigation has disclosed no reason for supposing that they contain
an}' such papers derived from other sources ; that the papers consti-
tuting those volumes are sufficiently identified as being part, if not
all, of the documents called the Hutchinson Papers received by the
Society from Secretary Bradford ; and that they should be sur-
rendered to the Commonwealth, in accordance with the terms of this
arbitration.

Perhaps I need not add, that no suspicion of intended wrong
attaches to any person connected with this controversy, and that
every possible facility and courtesy have been extended to me by
the officers of the Historical Society in the prosecution of a laborious
and somewhat delicate research.

ROBERT S. RANTOUL.

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