Appendix V

CASES CITING TO QUINCY’S REPORTS

editor’s note

Daniel R. Coquillette

This Appendix is the result of the devoted work of two research assistants, Michael E. Morales and Mark A. Walsh, and a great contribution by that reference librarian beyond all compare, Mark G. Sullivan. It is an astonishing fact that Quincy’s Reports have been cited seven times by the Supreme Court of the United States, as recently as 1987 in an eloquent dissent in Illinois v. Krull, 480 U.S. 340, 363 (1987) by Justice O’Connor, following on another citation, in 1983 in another eloquent dissent by Justice Stevens, in Marshall v. Lonberger, 459 U.S. 422, 448 (1983).

Perhaps less surprising has been the constant citation to Quincy’s Reports by the Supreme Judicial Court of Massachusetts, which has cited to the Reports twenty-three times, from Commonwealth v. City of Roxbury, 75 Mass. (9 Gray) 471, 518 (1857) to O’Coin’s, Inc. v. Treasurer of Worcester County, 362 Mass. 507, 515 (1972). But here is another astonishing fact! Quincy’s Reports was cited three times by the Supreme Judicial Court of Massachusetts, by the exact page number of the first published edition of 1865, well before the publication date! See Commonwealth v. City of Roxbury, 75 Mass. (9 Gray) 471, 518 (1857), Searle v. Abbe 79 Mass. (13 Gray) 409, 412 (1859), and Holbrook v. Bliss, 91 Mass. (9 Allen) 69, 71 (1864). How could this be?

Step forward master detective and research librarian Mark G. Sullivan, whose accompanying and masterful “‘Phantom’ References to Quincy’s Reports in the Massachusetts Supreme Judicial Court Reports,” infra, unravels the mystery. See, Appendix 5, 856, infra. The chief clue is the role of the Reporter to the Supreme Judicial Court from 1854 to 1866, Horace Gray Jr. (1828–1902). Gray was a legal scholar and jurist of great ability. He was to become a Justice of the Supreme Judicial Court in 1864, Chief Justice of the Supreme Judicial Court in 1873, and a Justice of the Supreme Court of the United States in 1882. How does his influence explain the “ghost citations,” the three citations to the exact pages of Quincy’s Reports years before it was published? I will not spoil the ending. I direct you to Mark G. Sullivan’s fascinating note, infra.

Even a brief review of the following citations and the summaries prepared by Michael Morales and Mark Walsh will demonstrate the continuing significance of Quincy’s Reports. Besides the citations by the Supreme Court of the United States and the Supreme Judicial Court of Massachusetts, there are cases in the United States Courts of Appeal and the United States District Courts, in the United States Court of Military Appeals, and in the Supreme Courts of other states. The citations are not primarily in matters of archaic curiosity or colonial history, but rather are addressed to pressing problems of contemporary legal disputes, from search and seizure to bigamous marriages. It was Horace Gray Jr. himself who first recognized the powerful importance of these precedents as “a tool for learning and research,” nearly eight years from their creation.23 It is part of the powerful legitimacy of the common law, that it grows from its roots, and that old cases are not just curiosities, but evidence of sacred rights and duties. This, of course, is particularly true of important cases from the birth of the Republic and the Constitution.24 Quincy’s Reports, the first reports of the oldest continuous court of this continent, are not just historic facts. Rather, they are authority, part of a living, growing force, the common law of Massachusetts and the United States.

Cases Citing to Quincy’s Reports

(Prepared by Michael E. Morales Boston College Law School, 2009, and Mark A. Walsh, Esq., Boston College Law School, 1994. With special thanks to Mark G. Sullivan, Reference Librarian without compare!)

united states supreme court

1. Boyd v. U.S., 116 U.S. 616, 625 (1886).
In a case involving unreasonable search and seizure, Paxton’s Case, Quincy’s Reports, 51, was cited (in a footnote) by Justice Bradley while discussing the history of search and seizure under the Fourth Amendment.
2. Goldman v. U.S., 316 U.S. 129, 140 (1942).
The Court held that federal agents’ use of a detectaphone during an investigation was not a violation of the Fourth Amendment. Dissenting, Justice Murphy cited (in a footnote) Paxton’s Case, Quincy’s Reports, 51, as having an account of the writs of assistance.
3. Davis v. U.S., 328 U.S. 582, 604 (1946).
In a case involving search and seizure, Paxton’s Case, Quincy’s Reports, 51, was cited in Justice Frankfurter’s dissent as part of an examination of the history of search and seizure.
4. Times Film Corp. v. City of Chicago, 365 U.S. 43, 54 (1961).
Dissenting in a case about film censorship, Chief Justice Warren quoted (in a footnote) Chief Justice Hutchinson’s explanation of the common-law understanding of freedom of the press in his Charge to the Grand Jury by the Chief Justice (1767), Quincy’s Reports, 244.
5. U.S. v. Barnett, 376 U.S. 681, 713 (1964).
Answering in the negative a certified question of whether alleged contemners were entitled to a jury trial as a matter of right, the court cited Thwing v. Dennie, Quincy’s Reports, 338, in an appendix to the opinion containing cases related to colonial courts imposing punishments for contempt.
6. Marshall v. Lonberger, 459 U.S. 422, 448 (1983).
The Court held that the Respondent was not deprived of a federal right when his Illinois conviction, based on a guilty plea, was admitted in his Ohio murder trial. Dissenting, Justice Stevens cited King v. Doaks, Quincy’s Reports, 90, as an example of how the common law deems it unfair to consider a person’s past crimes when determining the probability of whether they committed a similar later crime.
7. Illinois v. Krull, 480 U.S. 340, 363 (1987).
Dissenting in a case regarding the Fourth Amendment exclusionary rule, Justice O’Conner cited Paxton’s Case, Quincy’s Reports, 51, as part of the rule’s historical context.

supreme judicial court of massachusetts

1. Commonwealth v. City of Roxbury, 75 Mass. (9 Gray) 471, 518 (1857).
Long Note by Reporter of Decision, Horace Gray Jr., added to decision, discussing benefit of clergy in Colonial Massachusetts, a citation to Paxton’s Case, Quincy Reports, 51 at 53–54. For how this citation and the next two preceded the publication date in 1865 of Quincy’s Reports, see Mark G. Sullivan, “‘Phantom’ References to Quincy’s Reports in the Massachusetts Supreme Judicial Court Reports,” Appendix 5, 856, infra.
2. Searle v. Abbe, 79 Mass. (13 Gray) 409, 412 (1859).
In a case concerning the effect of an arbitrator’s decision in a boundary dispute, the successful arguments of James Otis appearing in Rogers v. Kenwrick, Quincy’s Reports, 63–64, were quoted by Metcalf, J.
3. Holbrook v. Bliss, 91 Mass. (9 Allen) 69, 71 (1864).
To establish that the courts of the Commonwealth had historically been vested with equity powers in cases of writs of entry to foreclose mortgages of real estate, the enabling statute, Prov. St. 10 W. III c. 14, was quoted, and Watts v. Hasey, Quincy’s Reports, 194, was cited as an example of proceedings thereunder.
4. Ammidown v. Freeland, 101 Mass. 303, 310 (1869).
In a dispute over the validity of a statute determining which party of a sale is responsible for collection and payment of a tax, the Defendant argued that the statute was unconstitutional. Citing Derumple v. Clark, Quincy’s Reports, 38, as an example of similar legislation whose validity has been judicially established, the Court held the statute to be within the province of the legislature.
5. Farmington River Water Power Co. v. Co. Commissioners, 112 Mass. 206, 214 (1873).
If a case was within the jurisdiction of an inferior tribunal, the petitioner for a writ of certiorari cannot be permitted to introduce evidence to contradict or vary its statement in the record, citing Pond v. Medway, Quincy’s Reports, 193.
6. Turner v. Langdon, 112 Mass. 265, 266 (1873).
A plaintiff can recover on an account for goods bargained and sold if the jury finds that the goods were offered for delivery and defendant failed to comply with the terms of the sale, citing Hall v. Miller, Quincy’s Reports, 252.
7. John W. Cartwright’s Case, 114 Mass. 230, 238 (1873).
In an appeal of a contempt order, Thwing v. Dennie, Quincy’s Reports, 338, was cited along with numerous English and American authorities to establish the inherent power of the court to commit and punish contempts for obstruction of justice.
8. Russ v. Alpaugh, 118 Mass. 369, 375 (1875).
In a writ of entry by heirs to recover a lot of land from a tenant who was deeded the land by from one who only had an estate by the curtesy, the application of the English doctrine of collateral warranty posed as a possible bar to recovering the land. Banister v. Henderson, Quincy’s Reports, 119, was cited to show that, to the extent the English doctrine of collateral warranty has been adopted in Massachusetts, it is limited by Statute of Anne.
9. In re Whitcomb, 120 Mass. 118, 120 (1876).
Thwing v. Dennie, Quincy’s Reports, 338, was cited by the petitioner’s counsel in a case regarding unlawful imprisonment. The opinion, written by Justice Gray in favor of the petitioner, does not mention the case.
10. Holmes v. Hunt, 122 Mass. 505, 513 (1877).
In a case upholding the constitutionality of a statute that made an auditor’s report primâ facie evidence, the court cited Newman v. Homans, Quincy’s Reports, 5, to show the change in Massachusetts of the use of the action of account to the action of assumpsit.
11. Evans v. Clapp, 123 Mass. 165, 170 (1877).
In determining what questions were concluded by the award of a referee, the referee is a competent witness to establish the facts of what took place before him, but his parol evidence cannot be used to vary or control a written award, citing by example Wiswall v. Hall, Quincy’s Reports, 27.
12. Connecticut River R. Co. v. Franklin County Com’rs, 127 Mass. 50, 58 (1879).
A statute authorizing the state to take property for the use of its railroad without providing adequate compensation was found unconstitutional. Scollay v. Dunn, Quincy’s Reports, 74, was cited to support the appropriateness of a writ of prohibition issued against the state.
13. Dorr v. Tremont Nat’l Bank, 128 Mass. 349, 358 (1880).
In consideration of procedural matters concerning a pleading of the general issue and a justification pleading, Flagg v. Hobart, Quincy’s Reports, 332, was cited to show that the early practice of the court was to allow a defendant to both open and close regarding the justification.
14. Pratt v. Bates, 161 Mass. 315, 318 (1894).
Dispute as to sufficiency of description in a notice to interested parties in a suit concerning the sale of land subject to contingent remainders. Rochester Proprietors v. Hammond, Quincy’s Reports, 159, is cited to establish that the description was not sufficient.
15. Derick v. Taylor, 171 Mass. 444, 446 (1898).
Dispute as to procedural rules concerning the discontinuance of an appeal. Little v. Holdin, Quincy’s Reports, 338, is cited to establish how the issue was decided under a similar colonial statute.
16. Hunting v. Safford, 183 Mass. 157, 160 (1903).
In an action challenging the account of the guardian of a minor, Dunten v. Richards, Quincy’s Reports, 67, was cited to establish the long-standing general principles applied in Massachusetts courts.
17. Nolin v. Pearson, 191 Mass. 283, 284 (1906).
In a discussion of the early common law rules of dower and curtsey, Hanlon v. Thayer, Quincy’s Reports, 99, is cited to show that a wife could not alien or devise her property during coverture without the assent of her husband.
18. Merrick v. Betts, 214 Mass. 223, 226 (1913).
In a dispute regarding inheritance of land, the existence of the right of slaves to marry prior to the 1780 Constitution was established by citation to Oliver v. Sale, Quincy’s Reports, 29.
19. Commonwealth v. Kozlowsky, 238 Mass. 379, 386 (1921).
The question was raised whether the Attorney General or his assistant may be present in his official capacity during grand jury deliberations. Proof of his chief role as prosecuting officer during the provincial period was shown by his appearance in court, citing Rex v. Doaks, Quincy’s Reports, 90.
20. Sheehan v. Superintendent of Concord Reformatory, 254 Mass. 342, 347 (1926).
In a dispute as to whether prison officials may transfer a juvenile offender from a reform school to a correctional institution, the petitioner contended that such was a change in his sentence and an infringement of the powers of the judiciary. The statute and early cases, including The King v. Grant, Quincy’s Reports, 326, were cited to establish that it was not.
21. Ratner v. Hill, 270 Mass. 249, 254 (1930).
In a question of whether interest was due on a mortgage from the date of the sale of property, Newman v. Homans, Quincy’s Reports, 5, was cited to establish that the obligation to pay interest is imposed only by the terms agreed to by the parties, and that it is in fact a consideration for the use of the money.
22. Stamper v. Stanwood, 339 Mass. 549, 553 (1959).
To determine whether a bigamous second marriage had become valid under an enabling statute that recognized such marriages if entered into by at least one party in good faith, the court looked to the length of the marriage and the number of children born as a means of proving the good faith of the wife, citing Banister v. Henderson, Quincy’s Reports, 119.
23. O’Coin’s, Inc. v. Treasurer of Worcester County, 362 Mass. 507, 515 (1972).
This case involved a petition for a writ of mandamus directing a county treasurer to pay for recording equipment purchased by a judge to equip his court. The Petition of the Jurors in the Trial of Captain Preston and the British Soldiers (1771), Quincy’s Reports, 382–386, was cited as an early example of the court recognizing the authority of lower courts to require counties to pay for expenses related to jury service.

other states

1. Wallace v. State, 157 N.E. 657, 671 (1927). (Indiana)
In a case reversing a trial court’s error in overruling a motion to quash a search warrant, the court examined the history of the writs of assistance in colonial America, citing Massachusetts superior court’s issuance of the writ in Paxton’s Case, Quincy’s Reports, 51, as differing from other colonies.
2. Com. v. Schaeffer, 370 Pa.Super. 179, 256 (1987). (Pennsylvania)
In a case involving search and seizure, the court reversed the conviction and remanded, ordering the suppression of the fruits of an illegal electronic surveillance. It was noted in a part concurrence that, under certain outlined conditions, electronic participant monitoring would not have the characteristics decried by James Otis in Paxton’s Case, Quincy’s Reports, 51.

federal appeals court

1. American Medical Ass’n v. U.S., 130 F.2d 233, 248 (1942) (District of Columbia Circuit Court of Appeal).
Two medical organizations unsuccessfully appealed their convictions of conspiracy to restrain trade. In response to an argument that the trade restraint violation was committed with the purpose of enforcing the law, the court held that the actions were not justified and quoted language about warring against the King from the Charge to the Grand Jury by the Chief Justice, Quincy’s Reports, 218, 221.

federal district courts

1. Stockwell v. U.S., 23 F.Cas. 116, 122, D. C. Maine (1870).
In affirming the right of the United States to recover duties and penalties for resulting form illegally imported shingles, the court distinguished the process of obtaining a warrant for search and seizure as authorized by congress at the time form the writs of assistance in Paxton’s Case, Quincy’s Reports, 51.
2. The Underwriter, 119 F. 713, D. C. Mass. (1902).
In an admiralty libel regarding a possible maritime lien for supplies, the court examined the history of a materialman’s lean on a vessel due to inconsistent reasoning on the issue in previous cases. Scollay v. Dunn, Quincy’s Reports, 74 was cited as evidence of Massachusetts common law courts issuing prohibitions to the Admiralty Court during mid-eighteenth century.

court of military appeals

1. U.S. v. Drew, 15 USCMA 449, 457 (1965).
In a dissenting opinion of a case determining whether there was probable cause to search a barracks, James Otis in Paxton’s Case, Quincy’s Reports, 51 was quoted as part of the examination of the history behind the current determination of probable cause.

“Phantom” References to Quincy’s Reports in the Massachusetts Supreme Judicial Court *Reports**

Mark G. Sullivan, Legal Information Librarian and Lecturer in Law, Boston College Law School

Researchers examining Massachusetts Supreme Judicial Court cases for references to the volume of Quincy’s Reports edited by Samuel M. Quincy have uncovered an anomaly. The 1865 edition of this important collection of colonial era cases was cited in volumes of court reports for cases decided by the Supreme Judicial Court in 1857, 1859, and 1864. How could this situation occur? This report will attempt to fashion a solution for this enigma.25

The first case to appear in the Reports of Cases Argued and Determined in the Supreme Judicial Court of Massachusetts, which included a citation to a case from Quincy’s Reports, was Searle v. Abbe, decided by the Supreme Judicial Court in its September 1859 term, and published in 1860.26 Searle involved a property line dispute submitted to arbitrators for settlement, which the plaintiff found objectionable. The Court’s opinion, written by Justice Theron Metcalf, cited a 1762 Massachusetts Superior Court of Judicature case, Rogers v. Kenwrick, with a reference to “Quincy, 63, 64.” The citation to the Rogers case was to the text of the case as reported by Josiah Quincy, but with page references to the 1865 edition of Quincy’s Reports.27

The next reference to Quincy’s Reports to appear in the Supreme Judicial Court’s Reports was not actually in a case, but in a long “note” added at the end of Commonwealth v. City of Roxbury, 75 Mass (9 Gray) 471 (1857), which appeared in 1863. This case involved the proprietary rights of cities and towns to the sea shore and the adjoining flat lands. The note was written by the Reporter of Decisions, Horace Gray Jr., and added with the approval of the decision’s author, Chief Justice Lemuel Shaw.28

The reference is “See also Quincy, 53, note.” It occurred at the end of a paragraph in the note which discussed benefit of clergy in colonial Massachusetts.29

The final case from the Supreme Judicial Court which cited to Quincy’s Reports prior to its publication was Holbrook v. Bliss, a case from the October 1864 term.30 This case involved a writ of entry to enforce a mortgage obligation. In Holbrook, the Supreme Judicial Court reviewed the long-standing tradition of Massachusetts courts to use their equity powers in such cases. One of the examples given of an early use of this equity power was “Watts v. Hassey, Quincy, 194.”31 The Holbrook decision was written by the Court’s most recent appointee, Horace Gray Jr.

The common element in all of these examples is the presence of Horace Gray Jr., a man of enormous intellect and energy, who had connections to both the decisions of the Supreme Judicial Court and Quincy’s Reports. Gray was born in Boston in 1828 into a wealthy mercantile family. He graduated from Harvard in 1845, at seventeen. In February 1848 he entered Harvard Law School. While there, he, along with classmates such as Christopher Columbus Langdell, studied law by examining all the cases on a point under consideration. He won praise at the Law School for his ability, energy, and industry.32

After graduation from law school, Gray continued his legal training while working in the offices of Boston law firms. In 1851 he gained admission to the Massachusetts Bar and began his career as an attorney. While starting on his legal career, he began to assist Luther Cushing, the Reporter of Decisions of the Massachusetts Supreme Judicial Court, whose declining health required him to seek assistance, particularly while on the circuit around Massachusetts county courts.33 In this capacity the young attorney began to show his unique skills as a historical researcher, as well as his impressive knowledge of the law. When Cushing retired from the post of Reporter in 1854, Gray’s growing reputation made him the natural candidate to assume the position of Reporter of Decisions. He approached the position with his usual zeal and energy and soon “. . . found himself in his element.” He became actively involved in the daily life of the Supreme Judicial Court; he was known to assist an attorney preparing to argue a case before the Court by uncovering some overlooked or obscure decision which was directly on point.34

Early in his career as the Reporter of Decisions, Gray began to share his work product with the legal community by providing abstracts of recent cases and even the full text of cases prior to their publication in the Supreme Judicial Court’s Reports.35 One of the publications which received these advanced copies was the Monthly Law Reporter, published in Boston and edited by a distinguished Boston attorney and one of Gray’s early mentors, John Lowell.36 As part of this arrangement, Gray may have met Samuel M. Quincy, an 1852 graduate of Harvard University and co-editor of the Monthly Law Reporter since his admission to the bar in 1855. Quincy was the great-grandson of the famous revolutionary era patriot, Josiah Quincy, and Gray would have no doubt expressed a sincere interest in the younger Quincy’s project to edit and make available to the public his great grandfather’s manuscript of the Reports of Cases from the Court of Judicature in the Province of Massachusetts from 1761 to 1772.37

Gray’s habit of sharing unpublished cases and abstracts, and his enthusiastic willingness to assist legal researchers with obscure or unknown case law may explain how a reference to a case from Quincy’s Reports found its way into a Supreme Judicial Court opinion written nearly six years prior to its formal publication. The 1859 case of Searle v. Abbe38 appeared to be an uncomplicated one, which might have been easily decided by Massachusetts case law. After a short recitation of the facts and a brief analysis of the applicable law, Justice Theron Metcalf determined that the case was controlled by a single Massachusetts Supreme Judicial Court decision. While on the way to this straightforward determination, Justice Metcalf’s opinion suddenly shifted in tone and detail, quoting a legal argument made by James Otis in an 18th-century Superior Court of Judicature case, Rogers v. Kenwrick. Unlike the manuscript cases which both Gray and Justice Metcalf knew well, this case citation included a reference to “Quincy, 63, 64.” This citation had not been seen in any court decisions prior to Searle, so Gray must have convinced Justice Metcalf, a former Reporter of Decisions and a legal scholar in his own right, that the case was legitimate and the citation was to a volume of court reports which would eventually become available to the legal community.39 Justice Metcalf may have also been impressed by the source, a compilation of court reports transcribed by the great Revolutionary-era patriot Josiah Quincy, and by the competency of the two young lawyers, Horace Gray and Samuel M. Quincy, engaged in its editing.

Any concern regarding the absence of Quincy’s Reports in 1859 may have been lessened by a basic fact of legal publication in mid-19th-century Massachusetts. The volumes of Massachusetts Supreme Judicial Court’s Reports were uniformly two to three years behind the date of the Court’s decisions. From the time he assumed the position as Reporter of Decisions in March 1854 up to the end of 1859, Gray had completed seven volumes of his reports, ending with cases decided in the October 1856 term. Thus, the publication delay for Supreme Judicial Court decisions in September 1859 was almost three years, which certainly seemed like enough time for the editor of Quincy’s Reports to finish the task at hand before the Searle case appeared in its official form.

A possibly unforeseen factor would soon complicate the situation. A section of the 1859 Massachusetts statute which created the Superior Court required the publication of Supreme Judicial Court opinions within 60 days of the decision in the case.40 This new publication schedule galvanized the conscientious young Reporter into action. In 1860 Gray dropped the sequential publication pattern and moved quickly to provide the public with cases from the 1859 terms. After carefully calculating where the unreported decisions would appear in his reports, he produced Volume 13 in 1860, which reported decisions from the June and September 1859 Supreme Judicial Court terms, thereby bringing his Reports into an approximate compliance with the law.41 The Searle case thus appeared in its official form some two years ahead of its projected schedule, with a citation to a reporter which no judge or attorney had ever seen.

Whatever embarrassment or concern caused by the premature appearance of the Quincy’s Reports citation would have probably been overshadowed by other issues. Gray now faced the prospect of working to edit and publish current cases on a timelier basis, as well completing the volumes for the 1857 and 1858 Supreme Judicial Court terms. In addition to his own responsibilities as the sitting Reporter of Decisions, Gray had agreed to produce the final volume of Cushing’s Reports (Volume 12), which ended with the December, 1853 term. This volume was completed by Gray in 1860, with an unprecedented seven-year hiatus.42 After six years as Reporter of Decisions, Gray decided to try his hand at politics. He was an unsuccessful candidate for the Republican Party’s nomination for Attorney General of Massachusetts in 1860. At the end of the November 1860 Supreme Judicial Court term, Gray resigned as Reporter of Decisions and returned to the full time practice of law.43

The outbreak of sectional hostilities in April 1861 presented Gray with a difficult choice. Thousands of Massachusetts men joined the various military units forming around the state in answer to President Lincoln’s call for volunteers. Horace Gray Jr. was not one of them, however. His fellow attorney Samuel M. Quincy did respond to the call and, in May 1861, the great-grandson of the famous patriot received a commission as a Captain in the 2nd Massachusetts Volunteer Infantry.44 Prior to leaving Massachusetts with his regiment, Samuel Quincy entrusted the manuscripts of his great-grandfather’s reports to someone he knew would care for them, and perhaps oversee their publication. He left the manuscripts with Horace Gray Jr.

As 1861 progressed, Gray continued to practice law in Boston, and also provided informal legal advice to Massachusetts Governor John Andrew on the many issues arising from the war. With Gray’s successor in the Reporter’s role, Charles Allen, handling the new statutory requirement for timely publication, the former Reporter continued with the task of completing the volumes of the Massachusetts Supreme Judicial Court Reports for his term in office.45 Gray’s Reports returned to their pre-1860 sequence, with Volume 8, covering the March and September 1857 terms, published in 1861. The next year brought a refocused effort on more recent terms, with Volume 14 covering the last of the 1859 terms, as well as the January 1860 term.

With the Civil War continuing, and Samuel Quincy’s return from service in Virginia an unknown factor, Gray probably began to spend time examining and editing the Quincy’s Reports manuscripts. The presence of a citation to a case from Quincy’s Reports in the Searle opinion, without any readily available access to the text of the colonial era decision, may have caused Gray to seek a solution to the problem through a familiar forum, The Monthly Law Reporter. In the August 1862 issue of that publication, editor John Lowell published the text of Rogers v. Kenwrick, the same 1762 decision cited by Justice Metcalf in the Searle case. Although no contributor was mentioned, the document had all the marks of Gray’s handiwork. The footnote for the name of the case had a citation to “Quincy, 62.” Beneath the name of the case appeared a head note, similar in style to the type provided by a Reporter of Decisions for the Massachusetts Supreme Judicial Court. Other footnotes gave more background information on the pleadings and arguments submitted by counsel in the case, and finally a citation to “Searle v. Abbe, 13 Gray 409” was included to complete the connection.46

Any sense of relief which Gray felt at resolving the citation issue in the Searle case may have been short lived. On August 18, 1862, the elder Josiah Quincy, who provided his grandson Samuel M. Quincy with the manuscripts of the Reports composed by his father, wrote to Horace Gray. In this letter Quincy stated that he had been “informed that my grandson, Samuel Miller, left in your possession several of my late father’s papers, which I should be greatly obliged if you will collect and put them under cover . . . to me. . . . ” The elder Quincy then went on to inquire about the publication status of his father’s Reports:

I shall be obliged also if you will be good enough to inform me whether the volume of my father’s Reports got up under your and my said grandsons auspices have yet to be offered to the public, as I am very desirous to receive my copies-I subscribed for twenty.47

This communication from the head of one of Boston’s most prestigious families, with its understated yet demanding tone, may have been unsettling for Gray, but it probably did not match the feeling of concern generated by other news involving a Quincy family member. On August 9, 1862, Captain Samuel M. Quincy was seriously wounded during the battle at Cedar Mountain, Virginia, and was subsequently captured by Confederate forces. His wounding and capture no doubt created a great deal of anxiety among his family, friends, and colleagues. Samuel Quincy would remain in enemy hands until October 1862 when he was paroled by the Confederates and released from captivity.48

Gray probably continued to work on Quincy’s Reports throughout the autumn of 1862. The historical record is silent on whether Samuel Quincy consulted with Gray after the recently imprisoned officer returned to Boston. Another reference to Quincy’s Reports appeared in the Boston legal press at the end of 1862, this time in a section of the Monthly Law Reporter dedicated to recent developments and miscellaneous legal news. Again submitted without contribution, it also bore the mark of Horace Gray. The “Hotch-Pot” section of the December 1862 issue had this entry:

In the decision in Rogers v. Kenwrick, Quincy 62, 3 Geo.3 (not yet published), reprinted in our August Number, 1862, the Superior Court of Judicature of Massachusetts Bay anticipated by forty years the decision of the Court of King’s Bench in the case of Doe v. Rosser, 3 East, 16 (1802), on the same point.49

This short entry performed several tasks. It reconfirmed, for the benefit of any inattentive judge or lawyer who may missed it the first time, the presence of the Rogers case in both Quincy’s Reports and the Monthly Law Reporter, announced Quincy’s Reports’ status as unpublished, and subtly hinted at the historical significance of the cases in the Reports.

A publisher’s announcement in the January 1863 issue informed the readers of the Monthly Law Reporter of the imminent appearance of Quincy’s Reports, as well as Volume 9 of Gray’s Reports.50 Whether this announcement was an error or a misunderstanding between the Boston publishing firm Little, Brown, & Co., and Horace Gray is not known; only one of these reporters would be offered to the public during 1863. Volume 9 of Gray’s Reports appeared that year, but Quincy’s Reports remained unpublished.51 The continued absence of Quincy’s Reports, despite references to it in issues of the Monthly Law Reporter, caused the elder Josiah Quincy to again request an explanation for the delay from Horace Gray. In mid February, 1863 Quincy wrote to Gray:

Sir,

I must intreat (sic) you to publish my father’s reports, which I understand are now printed. I am anxious that my Grandson should have the satisfaction of seeing them before the public, before he goes to the army from which possibly he may never return. If you intend to postpone that publication further, I wish for a personal interview with you on the subject. I should be obliged for a return of any of my father’s manuscripts now in your possession. I have also recently found a lost law manuscript of my fathers which perhaps you would like to see-I beg your early attention to this request. A man of ninety two can permit no dallying with time.52

Quincy’s letter to Gray was a mixture of demands and personal appeals, along with a tempting offer which the elder statesman knew the young legal scholar would not pass up. The mention of his grandson’s return to service with the 2nd Massachusetts clearly showed that the younger Quincy had chosen, for the foreseeable future, a military career rather than a legal one. Years later, one of Samuel Quincy’s acquaintances recalled how during his recovery in the winter of 1862 he “. . . might have remained at home . . .” but “. . . his keen spirit chafed under the delay of a tedious cure.” Due to losses among the officer ranks of the 2nd Massachusetts, Quincy had been promoted to Colonel, and he prepared over the winter to return to his command.53 The February, 1863 letter clearly indicated that Horace Gray was now in charge of Quincy’s Reports, and thus he had become the focal point for the elder Quincy’s pleas and admonitions.

A clue to the delay in publication may be found in the pages of Volume 9 of Gray’s Reports. The most notable case reported in this volume was Commonwealth v. City of Roxbury, which involved the proprietary rights of cities and towns to the sea shore and its adjoining flat lands.54

This case’s historic and legal significance caused Horace Gray to make an unusual proposal to Chief Justice Lemuel Shaw, the author of the City of Roxbury opinion. Gray proposed, and Shaw approved, the addition of an extensive note to the opinion, which Gray would research and write, and append to the case when it appeared in the Reports.55 The result of this research was “. . . a most elaborate note, covering no less than twenty-five closely printed pages.” The depth of the historical research, which traced the origins of riparian rights in Massachusetts back to colonial days, demonstrated Gray’s “. . . indefatigable love for the dusty devotion to detail. . . .”56

Chief Justice Shaw may have given his approval to the additional note anytime from the date of the original decision in the October 1857 term until his death in April, 1861. Gray may have started his research and writing in the late 1850’s, but his work on the note clearly continued up to 1862.57 Sometime during this period he decided to include a “See also” reference in the City of Roxbury note to “Quincy, 53 note.” The interesting aspect of this reference is that it was actually not to a case reported by Josiah Quincy, but to a note written by one of the editors of Quincy’s Reports, Samuel Quincy or Horace Gray.58

Perhaps Gray’s exposure to the Quincy manuscripts and the extensive editing required by the project initially undertaken by Samuel Quincy, while he worked on the City of Roxbury note, gave him an appreciation for the value of these colonial era reports, which his colleague Samuel Quincy did not share. For Gray, Quincy’s Reports may have become more than a collection of interesting colonial era case decisions, one of which might be useful for a Supreme Judicial Court Justice searching for precedents; he now viewed the Reports, along with the editorial comments, as valuable resources for the legal scholar. The City of Roxbury note allowed Gray to construct a broad, historically based review of a particular topic of Massachusetts law. Quincy’s Reports presented him with a unique opportunity to explore the contributions made by English law to the development of the American legal system, and to better understand the complex interaction between English and American law during the colonial period. Gray may have seen in Quincy’s Reports a once in a lifetime opportunity to examine these topics, an opportunity far greater than would be realized by the simple transcription and publication of the Reports. In order to complete this shift in focus, publication of Quincy’s Reports would have to be delayed. Gray needed more time; time to close the gap in his own Reports, which in 1863 with Volume 9 now reached over five years, as well as time to construct what would eventually become his major contributions to Quincy’s Reports: The Notes on the Writs of Assistance, The Notes on the Powers of Juries, and the Notes on Slavery in Massachusetts.59

Time, however, was not on the side of Josiah Quincy. As Gray worked to finish his Reports, represent his clients, and research and write the Notes for Quincy’s Reports, the elder Quincy saw his grandson return to the 2nd Massachusetts in the spring of 1863. Colonel Samuel Quincy commanded his regiment at the battle of Chancellorsville in early May 1863. He eventually realized that he had not fully recovered from his earlier wounds and his prisoner of war experience, and resigned his commission as Colonel of the 2nd Massachusetts in June 1863.60 The record is silent as to whether Samuel Quincy contacted Horace Gray during the summer of 1863, but near the end of the summer the elder Quincy once again wrote to Gray. His letter of August 28, 1863, reflected a new understanding of the scope of Quincy’s Reports, one which may have been communicated to him directly by Gray or through his grandson. In the letter he noted:

I had no idea when I gave authority to my son to publish the reports which my father had left among his papers that they were to be made the basis for the learned and important investigation which you propose.

I am sensible that your design reflects an honor on the work, which I am far from wishing to interfere with. But I am desirous to see the work free from the press before I die. I am now in my 92nd year. I beg you to consider it.61

This letter clearly indicates that the plan for Quincy’s Reports had changed since its conception, and that Horace Gray was now primarily responsible for the “learned and important investigation” which had become a significant part of it. Samuel Quincy’s role in editing the Reports would again be compromised by his decision to return to military service in November 1863. At that time he accepted a commission as Lt. Colonel of an African-American regiment, the 73rd United States Colored Troops (USCT). This post would take him even further from Boston than his service with the 2nd Massachusetts. The 73rd USCT was soon deployed to Louisiana.62 See Daniel R. Coquillette, “Editor’s Foreword,” Quincy’s Reports, Quincy Papers, Vol. 4, 5–8.

It was at Port Hudson, Louisiana, that Samuel M. Quincy wrote the Preface to Quincy’s Reports in early February 1864. In the Preface, Quincy mentions two additional parts of the work which were not among the original manuscripts of the cases reported by his great-grandfather. He disclosed that the Notes and Appendix to the Writs of Assistance Case and the Notes to the History of Slavery in Massachusetts and England “. . . are the work of HORACE GRAY, JR., ESQ. of the Boston Bar.”63

Missing from the Preface was a reference to Gray’s other major contribution, the Notes on the Power of Juries. Gray continued his work on these Notes throughout 1864, and he also continued his work on the Reports which bear his name. Volume 10 and 11 of Gray’s Reports, covering the November 1857 to October 1858 terms, appeared in 1864. Gray’s Reports now ran from Volumes 1 to 11, and Volume 13 to 14, leaving only two terms from 1858 and 1859, and most of 1860 unreported.64

While Samuel Quincy served with the 73rd USCT and Horace Gray worked diligently on his research, writing and case editing, Josiah Quincy, “the patriarch of all public men in America,” who so fervently wished to see his father’s reports in print, died at the family farm in Quincy, Massachusetts, on July 1, 1864.65 Whatever regret Gray may have felt regarding the elder Quincy’s unfulfilled hope, he probably felt an equal amount of satisfaction that the work of the great patriot would soon be available to the public in a form which “reflects an honor on the work.”66

Six weeks after the elder Quincy’s death, Gray was appointed by Governor John Andrew to a seat on the Massachusetts Supreme Judicial Court. At thirty-six, he was the youngest Justice to ever sit on the highest court in Massachusetts.67 This appointment provided Gray with the perfect setting in which to apply his extraordinary research and analytical skills.

It did not take long for the newly appointed Justice to look to Quincy’s Reports for a relevant precedent. In Holbrook v. Bliss, from the October 1864 Worcester County term, Justice Gray began his opinion by reviewing the historical origins of the Massachusetts’ courts equity power in cases of writs of entry to foreclose mortgages. After examining the statutory origins of this power, he stated “Proceedings under this statute were common in the courts of the Province. Watts v. Hasey, Quincy, 194.”68 Gray probably cited this case with confidence, unconcerned about the problems caused by the earlier citation to Quincy’s Reports in Searle v. Abbe. Despite the best efforts by Charles Allen, the old delays had crept back into the Supreme Judicial Court Reports. The Holbrook case, in Volume 9 of Allen’s Reports, would not appear until 1866, months after the publication of Quincy’s Reports, a fact which Gray probably had considered in his choice of precedents.69

Quincy’s Reports finally appeared in print in the spring of 1865, more than two years after its original publication announcement from Little, Brown, & Co. in January 1863. The reviewer in the American Law Register commented that nearly half of the volume contained the work of Horace Gray, although he was not credited for his contributions. The Notes on the Writs of Assistance and Powers of Juries were praised as “. . . presenting on each of these topics much valuable and interesting matter.”70 As pleased as he may have been by this individual acclaim, Gray probably found the reviewer’s next comment more satisfying:

The book seems to us to contain much material which will be of value to every thorough student in the law, and especially to all who desire to be informed in regard to the progressive history of jurisprudence in the country.71

The review confirmed Gray’s success in transforming Quincy’s Reports from a collection of colonial era cases to a tool for learning and research. Gray would use Quincy’s Reports for those purposes throughout his term of service on the Massachusetts Supreme Judicial Court.72

Samuel Quincy may have seen a review of Quincy’s Reports while he continued his military service in 1865. He returned to civilian life in 1866, with the rank of a Brevet Brigadier General. Samuel Quincy would not use his great-grandfather’s reports for anything other than a point of family pride. His role in their publication was that of a facilitator, someone who started the project, gave it some initial impetus, and then entrusted it to a colleague with a much deeper appreciation of the fundamental significance of the work. Horace Gray’s use of references to Quincy’s Reports in the case law of Massachusetts prior to its publication reflected his appreciation of the importance of these colonial era reports in the development of American law.

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

3. Dissent: 3 Cases-1, 29, 55. William Cushing dissented in Case 69.

4. Dissent: 4 Cases-1, 25, 42, 53

5. Dissent: 3 Cases-10, 17, 53

6. Dissent: 2 Cases-59, 61

1. See Cases 1, 5, 6, 12, 23, 24, 25, 26, 30, 31, 32, 33, 35, 36, 37, 39, 43, 49, 50, 51, 54, 60, 61, 62, 65, 66, 68, 71, 72, 73, 74.

2. See Cases 7, 9, 15, 16, 21, 22, 26, 28, 29, 30, 33, 35, 38, 39, 40, 42, 43, 46, Memorial of the Town of Boston (Reports, 200), 53, 58, 59, 60, 61, 62, 63, 75, 76, 78.

3. See Cases 1, 10, 11, 14, 15, 16, 18, 19, 24, 34, 35, 36, 38, 41, 42, 44, 48, 52, 53, 55, 57, 58, 59, 69.

4. See Cases 2, 3, 4, 7, 8, 13, 21, 28, 40, 41, 46, 55, 56, 58, 59, 62, 65, 70, 74.

5. See Cases 10, 31, 40, 41, 46, 47, 51, 52, 55, 57, 61, 63.

6. See Memo, Reports, 35, Memo, Reports, 168, Grand Jury Charge, Reports, 175, Memo, Reports, 197, Memo, Reports, 198, Memo, Reports, 316, Cases 72, 74.

7. See Cases 24, 25, 29, 43, 60, 75, 76.

8. See Cases 9, 20, 26, 29, 42, 59.

9. See Cases 27, 45, 64, 66, 67, 77.

10. See Cases 17, 22, 73, 78.

11. See Cases 34, 37, 44.

12. See Cases 13, 36.

1. See Cases 1, 2, 5, 7, 8, 9, 15, 16, 20, 21, 22, 24, 25, 26, 28, 29, 30, 31, 33, 35, 37, 38, 39, 41, 42, 43, 44, 46, Memorial of Boston (Reports, 200), 54, 58, 59, 60, 61, 62, 63, 75, 78.

2. See Cases 17, 20, 22, 29, 30, 31, 35, 41, 42, 47, 51, 61, 63, 64, 70, 73, 75, 77.

3. See Cases 2, 4, 7, 21, 40, 46, 50, 51, 56, 58, 59.

4. See Cases 3, 6, 10, 11, 12, 13, 14, 18, 19, 23, 27, 32, 34, 36, 40, 45, 49, 50, 52, 53, 55, 56, 57, 65, 66, 67, 68, 69, 71, 72.

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).

20. See Appendix 5, infra, Citations to Quincy’s Reports.

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.

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).

31. Id., 72.

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).

71. Id.

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.