VOLUMES FOUR AND FIVE
In my Editor’s Foreword I pay tribute to Charles Miller Quincy, Josiah’s great-grandson, who painstakingly prepared the first transcript in 1864. In preparing this, the only modern edition after nearly a century and a half, I have been loyally and ably assisted by a team of outstanding research assistants, at both Boston College Law School and Harvard Law School. For these two volumes of Quincy’s Reports I am particularly indebted to Brandon Bigelow, Kevin Cox, James Dimas, Elizabeth Kamali, Michael Morales, Thomas J. Murphy, Christina Nolan, Nicole Scimone, Brian Sheppard, Susannah Tobin, Elisa Underwood, and Mark Walsh. Every page has benefitted from their hard work and intelligence. I should particularly thank Mark Walsh, who was in at the very beginning of this project and was essential in creating the valuable appendices at the end of Volume Five, Brandon Bigelow and Brian Sheppard, who worked so hard to check the judicial records, and Kevin Cox, who tirelessly polished and double-checked the annotations, and contributed so much to the final result. There are also the superb reference librarians, particularly Karen Beck and Mark Sullivan at the Boston College Law Library and David Warrington at the Harvard Law Libraries. Without them I would have been lost.
Page by page, illustration by illustration, the Editorial Assistants to the Monan Chair, Patricia Tarabelsi and Charles Riordan, shaped these volumes. The magnificent design work of Paul Hoffmann is also self-evident in the volumes you hold in your hand. Then there are those two great institutions, The Massachusetts Historical Society and the Colonial Society of Massachusetts. The first has safeguarded the Quincy manuscripts, and generously allowed this publication. Particular thanks are due to the Massachusetts Historical Society’s talented Librarian, Peter Drummey, and his expert staff. Of course, the Colonial Society of Massachusetts has generously underwritten the Quincy Project from the beginning. And the most important contributions have not been just financial, but have involved the exceptional expertise of the Committee on Publications and the wonderful Editor of Publications, John W. Tyler, who has reviewed every word and to whom we all owe a great debt. Finally, I must thank my loyal academic colleagues, most especially Mary Bilder and Charles Donahue, my co-editor Neil York, a true gentleman and scholar, and my wife and family, who have made all this possible.
Daniel R. Coquillette
Volumes Four and Five
1. Dissent: 12 Cases-21, 25, 29, 30, 31, 37, 39, 42, 46, 47, 52, 55 (The Chief Justice was by far the leading dissenter!)
2. Dissent: 2 Cases-47, 59
4. Dissent: 4 Cases-1, 25, 42, 53
5. Dissent: 3 Cases-10, 17, 53
6. Dissent: 2 Cases-59, 61
11. See Cases 34, 37, 44.
12. See Cases 13, 36.
5. See Cases 7, 9, 29.
1. Quincy Papers, vol. 4, pp. 5–12.
2. The Superior Court of Judicature was created by the so-called “Second Charter,” establishing the Province of Massachusetts Bay. The Charter was executed on October 1, 1691, by King William and Queen Mary, joint sovereigns, and the Court was created under the Province Laws on November 25, 1692. The first session was held in Salem on January 3, 1693. See The History of the Law in Massachusetts: The Supreme Judicial Court 1692–1992 (ed. Russell K. Osgood, Boston, 1992), pp. 1–2, 10–13 (hereafter, “History”); The Supreme Judicial Court of Massachusetts 1692–1942 (Boston, 1942, p. 3, hereafter, “Supreme Judicial Court”). For an excellent account of the evolution of the Massachusetts court system, see Catherine S. Menand, “A ‘magistracy fit and necessary’: A Guide to the Massachusetts Court System,” Law in Colonial Massachusetts 1630–1800 (ed. D. R. Coquillette, R. J. Brink, C. S. Menand, 1984), pp. 541–549. Massachusetts was also the first state to appoint an official reporter. For an excellent account of Ephraim Williams (1760–1833), appointed Reporter of Decisions of the Supreme Judicial Court in 1804, see Morris L. Cohen and Paul C. Seeman, “A Man Without Qualities: Ephraim Williams, First Reporter of the Supreme Judicial Court,” 9 Massachusetts Legal History 137 (2003). I am also indebted to this excellent article for the second quotation on the title page. Id., 153.
3. Barbara Aronstein Black, “The Concept of a Supreme Judicial Court: Massachusetts Bay 1630–1686” in History, supra, pp. 43–79.
4. Russell K. Osgood, “The Supreme Judicial Court, 1692–1992: An Overview,” History, supra, p. 10.
5. This is a distinction that Bermuda itself, the oldest self-governing Colony of the United Kingdom, was apparently blissfully unaware of, until it was contacted by the Supreme Judicial Court of Massachusetts! In the words of Karen Skiffington, Law Librarian in Bermuda since 1986:
What is not so widely known is that Bermuda’s judicial system is also the oldest in the Western Hemisphere. I found this out recently as the result of an enquiry from the Supreme Judicial Court of Massachusetts who, until then, had considered their court to be the oldest continuing court, dating back to 1692. I was able to find out through the Bermuda archives that our court system was established in 1616 with the General Assizes which was continued into the Courts of Judicature in 1687 and then on into our Supreme Court.
Karen Skiffington, “The Bermuda Law Reports as a Model for a Small Jurisdiction,” 2004 Canadian Law Library Review, vol. 29, p. 36.
6. See id., pp. 36–37. Again, according to Karen Skiffington, who is largely responsible for establishing real law reporting for Bermuda:
With such an ancient lineage, it would be reasonable to suppose that Bermuda had case law reports dating back for quite some time. However, due to the extremely small size of the Island and its unimportance until late in the twentieth century in international business and legal affairs, there has never been any publication in a serious way of our law reports. A handful of our cases have been reported in the West Indian Law Reports.
Id., p. 36. With special thanks to Michael Morales, research assistant extraordinaire.
7. See “Introduction: First Flower-The Earliest American Law Reports and the Extraordinary Josiah Quincy Jr. (1744–1775),” Quincy Papers, vol. 4, supra, note 3, for my argument that Josiah Quincy Jr. “was the first American to deliberately and self-consciously prepare a set of law reports.”
8. This was not a designation by Quincy himself. For the division of the Reports between Quincy’s manuscript note books, which does not follow any apparent rationale, other than space, see The Cox Chart, Appendix II, The Law Commonplace, Quincy Papers, vol. 2, pp. 429–435.
9. Oliver was in physical danger for failing to renounce any royal salary, and Hutchinson was humiliated. See Bernard Bailyn’s classic The Ordeal of Thomas Hutchinson (Cambridge, Mass., 1974), pp. 270–271.
10. Supreme Judicial Court, supra, p. 39. See Russell K. Osgood, “The Supreme Judicial Court, 1692–1992: An Overview,” History, supra, pp. 14–15.
11. Thus the statute of 1776 “providing that ‘Whereas Boston, the place appointed by law for holding the superior[u]r court of judicature . . . within and for the county of Suffolk, is now made a garrison by the ministerial army, and become a common receptacle for the enemies of America,’ the court for the future should be held at Dedham and at Braintree.” Id., p. 39.
12. Of the four justices constituting the Court on July 19, 1775, Chief Justice Peter Oliver and Justices Foster Hutchinson and William Browne were loyalists, and went into exile. Justice William Cushing was a known moderate, and was reappointed. The fifth justice, Justice Edmund Trowbridge, who is frequently mentioned in Quincy’s Reports, was “a moderate sympathizer with the English government,” but, unlike Oliver, Trowbridge renounced any Crown salary, and declared he would “receive no salary except that granted by the General Court.” Id., p. 38. Trowbridge, one of the few colonial judges trained as a lawyer, resigned before July 19, 1775, after jurors refused to sit with Oliver. Trowbridge remained in Massachusetts, practicing law until his death in 1793.
13. Id., p. 40.
14. Cushing served as a Justice of the Supreme Court for the United States from 1789 to 1810. In 1796, he was actually appointed Chief Justice of the United States by Washington, but declined because of his health. Russell K. Osgood, “The Supreme Judicial Court, 1692–1992: An Overview,” History, supra, p. 16, n. 64. What an astonishing record for the Justice who was the personal continuity of the Superior Court of Judicature through the Revolution!
15. Id., p. 16; Supreme Judicial Court, supra, pp. 39–42.
16. The primary exception was Hooton v. Grout, Reports, infra, p. 343 (Case No. 75, 1772), where Quincy managed to obtain a written opinion by Justice Edmund Trowbridge, one of the few colonial judges trained as a lawyer. Trowbridge also wrote a dissent in Richmond v. Davis, Reports, infra, p. 279 (Case No. 61, 1768), which did not persuade the other four justices in the majority to write opinions, to Quincy’s evident disappointment. Id., p. 297.
17. Address by the Chief Justice, Reports, infra, p. 197 (1765).
18. For an account of the social bonds between members of the elite bar in Quincy’s time, including the famous “Sodalitas, a Clubb of Friends,” see Daniel R. Coquillette, “Justinian in Braintree: John Adams, Civilian Learning, and Legal Elitism, 1758–1775,” in Law in Colonial Massachusetts 1630–1800 (eds. D. R. Coquillette, R. J. Brink, C. S. Menand, 1984), pp. 376–382.
19. For the shared legal education of the elite bar in Quincy’s time, which often emphasized an intellectually rigorous apprenticeship, see Daniel R. Coquillette, “The Legal Education of a Patriot: Josiah Quincy Jr.’s Law Commonplace,” Introduction, The Law Commonplace, Quincy Papers, vol. 2, supra, first published in 39 Arizona State Law Journal 317 (2007).
21. Perhaps the most remarkable example being the great speeches given by John Adams, James Otis Jr., and Jeremy Gridley in the Memorial of Boston, 1765, to the Governor in Council against the consequences of the Stamp Act, which de facto shut the courts. See Reports, infra, pp. 200–214.
22. See Daniel R. Coquillette, “Patriots in Defense of the ‘Enemy,’” Op-Ed, Boston Globe, January 18, 2007.
23. See Mark G. Sullivan, “‘Phantom’ References to Quincy’s Reports in the Massachusetts Supreme Judicial Court Reports,” supra, Appendix 5, in conclusion.
24. See Daniel R. Coquillette, Introduction to Quincy Papers, volumes 4 and 5, “First Flower-The Earliest American Law Reports and the Extraordinary Josiah Quincy Jr. (1744–1775),” Sec. V.
*Copyright © 2008 Mark G. Sullivan
25. For a partial list of Massachusetts Supreme Judicial Court cases which cite to Quincy’s Reports see Coquillette, Daniel R., First Flower-The Earliest American Law Reports and the Extraordinary Josiah Quincy Jr. (1744–1775), 30 Suffolk University Law Review 1 (1996), fn. 34 at 10. That list has now been expanded through the hard and valuable work of Michael E. Morales, Boston College Law School, 2009. See, Appendix 5, infra. I am very grateful for Mr. Morales’ efforts. This report will focus on two of the cases listed there, and will examine another citation to Quincy’s Reports in a volume of the Supreme Judicial Court Reports published before 1865.
26. 79 Mass (13 Gray) 409 (1859).
27. Id., 412.
28. “Remarks by the President: Tribute to Horace Gray.” Proceedings of the Massachusetts Historical Society, Second Series, Volume XVI, 251, 256. Lemuel Shaw (1781–1861) served on the Supreme Judicial Court from 1830–1860. See “Lemuel Shaw,” in Dictionary of American Biography, Vol. 17, 42–43 (1931).
29. 75 Mass (9 Gray) 451, 518 (1857).
30. 91 Mass (9 Allen) 69 (1864).
32. “Horace Gray” in Dictionary of American Biography, Vol. 7, 518 (1931); Williston, Samuel. “Horace Gray” in Lewis, William D., Great American Lawyers. South Hackensack, NJ: Rothman Reprints (1971), Vol. 8, 139, 141.
33. Prior to his appointment as Reporter of Decisions in 1848, Luther Cushing (1803–1856) was a legal scholar and editor, clerk of the Massachusetts House of Representatives and a judge in the court of common pleas. See “Luther Cushing” in Dictionary of American Biography, Vol. 4, 632 (1930).
34. “Remarks by the President: Tribute to Horace Gray,” Proceedings of the Massachusetts Historical Society, Second Series, Volume XVI, 251, 255; Williston, Samuel. “Horace Gray”, in Great American Lawyers, Vol. 8, 139, 144–145.
35. See, e.g., “Points Decided by the Supreme Court of Massachusetts . . . at the March Term, 1854,” 3 American Law Register 57 (November, 1854) and “Supreme Judicial Court of Massachusetts-October Term, 1854. Greene v. Greene.” 4 American Law Register 42 (November–December, 1855).
36. See, e.g., “Recent American Decisions; Supreme Judicial Court of Massachusetts, Suffolk, March Term, 1854. John Kent v. Thomas Garvin,” Monthly Law Reporter 39 (May 1854), and “Notes of Cases in Massachusetts; Supreme Judicial Court-Counties of Plymouth, Bristol, Barnstable, and Dukes County. October Term, 1856,” Monthly Law Reporter 581 (February 1857). John Lowell (1824–1897) was admitted to the Boston bar in 1846, edited the Monthly Law Reporter from 1856 to 1860, and was appointed to the Federal bench by President Lincoln in 1865. See “John Lowell” in Dictionary of American Biography, Vol. 11, 466–467 (1933).
37. Bent, Samuel Arthur, Eulogy of Samuel M. Quincy; Proceedings of the Bostonian Society, May 24, 1887. Boston: The Bostonian Society 8 (1887); “Criticism Criticised,” Monthly Law Reporter 576 (January 1859).
38. See fn. 2, supra.
39. Theron Metcalf (1784–1875) served as Reporter of Decisions for the Massachusetts Supreme Judicial Court from 1840–1847. Prior to his appointment as Reporter, Metcalf had an active law practice, was a frequent contributor to law journals, and edited Sir Henry Yelverton’s Reports (1820), Thomas Starkie’s Evidence and Sir William O. Russell’s Crimes. He served on the Supreme Judicial Court from 1848 to 1865. See “Theron Metcalf” in Dictionary of American Biography, Vol. 12, 582 (1931).
40. St. 1859, Ch. 196, section 48.
41. Volume 13 contains a notice which states that the “. . . cause of the appearance of this volume while the intermediate volumes are unpublished, is to be found in the following section of the Statute of 1859, chapter 196 . . .”; the notice then provides the full text of Section 48, which set out the new 60-day reporting requirement.
42. Hoar, George. “Memoir of Horace Gray,” Proceedings of the Massachusetts Historical Society, Second Series, Volume XVIII, 155, 162. (1904). A reviewer for the Monthly Law Reporter called attention to the fact that the delay in publishing the last volume of Cushing’s Reports had created a situation where “. . . in some instances, at least, counsel have been giving erroneous advice to their clients for years.” See, Monthly Law Reporter 254–255 (August, 1860).
43. “Horace Gray” in Dictionary of American Biography, Vol. 7, 518.
44. Eicher, John H. and David J., Civil War High Commands. Stanford, CA: Stanford University Press, 2001, 443.
45. Hoar, “Memoir of Horace Gray,” 163; Charles Allen (1827–1913) practiced law in Greenfield, Massachusetts, before his appointment as Reporter of Decisions in January 1861. After his resignation as Reporter in 1867, he went on to serve Massachusetts as Attorney General and as a Justice of the Supreme Judicial Court. See “Charles Allen” in Dictionary of American Biography, Vol. 1, 186 (1928).
46. Monthly Law Reporter 605 (August, 1862).
47. Letter of Josiah Quincy to Horace Gray, August 18, 1862. Boston Athenaeum, Boston, Massachusetts.
48. Bent, Eulogy of Samuel M. Quincy, 10–13.
49. Monthly Law Reporter 126 (December 1862).
50. Monthly Law Reporter 191 (January 1863).
51. The publication delay for Volume 9 was not overlooked by commentators. One reviewer noted that “Mr. Gray’s last volumes come along like angels’ visits.” See “Notices of New Books,” American Law Register 636 (June 1863). The usually complimentary reviewer in the Monthly Law Reporter took a more serious tone, demanding that “Mr. Horace Gray Jr., should give ‘some very particular reason’ for delaying for so long a time the publication of his volumes.” Despite concern over the the six year delay, the reviewer concluded that “Fortunately the value of legal decisions is not impaired by time.” See “Notices of New Books,” Monthly Law Reporter 444 (May 1863). For a differing point of view on the effect of a long publication delay, see the review of Volume 12, Cushing’s Reports, mentioned in fn. 17, supra.
52. Letter of Josiah Quincy to Horace Gray, February 12, 1863. Boston Athenaeum, Boston, Massachusetts.
53. Bent, Eulogy of Samuel Quincy, 13–14.
54. 75 Mass (9 Gray) 451. This case and other related material was also published as an offprint of Volume 9 Gray’s Reports. See, The Case of the Roxbury Flats, With a Note on the Early Government and Legislation of the Massachusetts Colony and the Title in the Sea Shore of Massachusetts; From the Ninth Volume of Gray’s Reports. Cambridge, Mass.: Riverside Press, n.d.
55. See fn. 4 supra.
56. Spector, Robert M. “Legal Historian on the United States Supreme Court: Justice Horace Gray Jr., and the Historical Method.” 12 American Journal of Legal History 181, 188 (1968). In this article Prof. Spector also analyzes some of Gray’s earlier writing, including A Legal Review of the Case of Dred Scott, as Decided by the Supreme Court, from the Law Reporter for June, 1857. Boston: Crosby, Nichols, & Co., (1857) and The Power of the Legislature to Create and Abolish Courts of Justice. Boston: G. C. Rand & Avery (1858). See 188–193.
57. The date range is confirmed in the Note by a paragraph dealing with timber and seaweed. In this paragraph Gray cited “St. 1859, c.241,” a case, Anthony v. Gifford, 84 Mass (2 Allen) 549, from the October 1861 Supreme Judicial Court term, as well as an 1821 Supreme Judicial Court case, Cohasset Proprietors v. Tower, which did not appear in print until its publication in the October 1862 issue of the Monthly Law Reporter. See 75 Mass (9 Gray) 451, 527; Monthly Law Reporter (October 1862).
58. 75 Mass (9 Gray) 451, 518. The note cited here also has a reference to another part of Quincy’s Reports, “(Vide Post 358).” That reference is to a page in the Appendix of Quincy’s Reports which includes the Notes on the Writs of Assistance written, coincidentally, by Horace Gray Jr. In addition to the Note following the City of Roxbury case, Gray added an Appendix to the City of Roxbury case, which reprinted a 1772 case, Ipswich Proprietors v. Herrick, from the Essex County Superior Court of Judicature, which involved the right to take shellfish from the flats between the high and low water marks. See Appendix, 75 Mass (9 Gray), 529.
59. Spector, “Legal Historian on the United States Supreme Court,” 187, fn. 20; 194–196.
60. Bent, Eulogy of Samuel Quincy, 14.
61. Letter of Josiah Quincy to Horace Gray, August 28, 1863. Boston Athenaeum, Boston, Massachusetts.
62. Civil War High Commands, 443; Bent, Eulogy of Samuel Quincy, 14–15.
63. Preface to Quincy’s Reports, iv.
64. One reviewer stated that the delay in preparing these reports was due to “. . . the inability of Chief Justice Shaw to, in consequence of the increased amount of business in the court, and the advanced period of his life, to always keep his opinions up to the demands of the reports.” “Notices of New Books,” American Law Register 384 (April 1864). This explanation does not take into account that Chief Justice Shaw authored only 22 of the 137 opinions which appear in Volume 10 of Gray’s Reports. There can be little doubt that Horace Gray’s workload and busy schedule also contributed to the delays.
65. McCaughey, Robert A., Josiah Quincy, 1772–1864: The Last Federalist. Cambridge, Mass.: Harvard University Press (1974) 215.
66. See fn. 37 supra.
67. Williston, “Horace Gray,” in Great American Lawyers, Vol. 8, 150.
68. 91 Mass (9 Allen) 69, 72.
69. One has to wonder if Justice Metcalf, now Gray’s colleague on the bench, smiled when he read the Holbrook case.
70. “Notices of New Books: Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, 1761–1772 . . .” American Law Register, n.p. (July 1865).
72. Gray cited the case law, notes, and appendices of Quincy’s Reports in fifteen other opinions for the Massachusetts Supreme Judicial Court, starting with Drury v. Inhabitants of Natick, 92 Mass (10 Allen) 169 (1865) and finishing with O’Loughlin v. Bird, 128 Mass 600 (1880). For a list of the other cases in which Gray cited case law from Quincy’s Reports, see Coquillette, fn. 1 supra. See also Appendix 5, infra.
73. Almost certainly a reference to Quincy’s widow, Abigail. See Editor’s Note, supra.
74. Almost certainly a reference to Quincy’s father, Colonel Josiah Quincy Sr. See Editor’s Note, supra. My thanks to my learned co-editor, Neil L. York.