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Master in Chancery Report, Massachusetts (1841)
Source: National Archives, Northeast Region Facility RG 21 USCC MA, October Term 1841, at 10/2/8 Box 117.
Citation:
Master in Chancery Report, Massachusetts (1841), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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23 transcripted pages
Chapter 1 Page 1
In Chancery
Charles Folsom & al
vs.
Bela Marsh & al.
To the Honorable the Justices of the
Circuit Court of the United States for the first Circuit &
district of Massachusetts.
In pursuance of an order of this
Honorable Court made in the above cause and dated the twenty
first day of May A.D. 1841, I, the subscriber, Geo. S. Hillard,
one of the masters of this Court, hereby report as follows.
The work, of which the plaintiffs are
the proprietors, is comprised in twelve octavo volumes, varying
in length from five hundred & forty to five hundred and ninety
two pages and containing in the whole Six thousand seven
hundred and sixty three pages, including one hundred and fifty
eight pages of Index in the twelfth volume. The first volume
consists of an original life of Washington by Mr. Sparks,
one of the plaintiffs, and the remaining eleven, of the writings
and correspondence of Washington, with editorial notes and
illustrations by Mr. Sparks.
The work of which the defendants are
the proprietors is in two volumes duodecimo. The first volume consists
of Four Hundred and Forty three pages, including forty one pages
of glossary and index. The Second volume consists of four hundred
and twenty three pages, including thirty five pages of glossary &
index. The whole amount of the pages of the two volumes is
therefore Eight Hundred and Sixty six, including Seventy six pages
of glossary and index.
I proceed to report the coincidences of the first volume
of the defendants's work with that of the plaintiffs, and how far
the said first volume is identical with that of the plaintiffs.
In the first place I report the number of passages in the first
volume of the defendants's work which are taken from &
identical with, the work of the plaintiffs and which
never appeared in print until the publication of the plaintiffs'
said work.
The following is a tabular view of the said passages,
the places where they are to be found in the first volume of
the defendants's work, and the number of pages they
occupy therein.
Chapter 1 Page 2
[Table of the passages in Charles W. Upham's The Life of Washington
which are taken straight from Jared Sparks's edition of
The Writings of George Washington]
Chapter 1 Page 3
2
[...]
In the above list, the passage on pages 138 to 139 has appeared in the American
Archives 4th series vol. 2nd, p. 1764, which was published in 1839,
subsequently to the publication of the plaintiffs's work, but prior to
that of the defendants. Also the passages on pages 339 to 342,
358 to 362, 367 to 368, 392 to 396, amounting in all to eleven
pages are found in the Memoirs, Correspondence & Manuscripts
of General Lafayette, a work published in New York in 1837
subsequently to the publication of the plaintiffs's work, but prior
to that of the defendants. This work is protected by copyright
which is transferred to the family of Gen. Lafayette. The
letter contained in Upham pp. 339 to 342, has in the
Memoirs etc. the following note by the editors: "We believe
this letter never reached M. de Lafayette" In the Memoirs etc.
there is a postscript of three lines, which is found in Upham
but which is not in the work of the plaintiffs.
# To the preceding list should be added a page and a half
on pp. 289-290 of the defendants' work, and a passage
of one page on pp. 327-328, and a passage of two pages
on pp. 329-330 and a passage of a page & a
quarter on pp. 335 to 337, all of which are found in
the Memoirs etc. of Lafayette above mentioned. In all,
five pages and three quarters.
Chapter 1 Page 4
3
I now proceed to report the passages in the first volume of the
defendants's work which are found in the plaintiffs's work
but which are also to be found in other works published
before the plaintiffs's work.
The plaintiffs maintain that
there are substantial differences between these passages as
contained in the work of the plaintiffs and in the other
works, offered in evidence by the defendants.
The defendants
maintain that these differences are not substantial. They
also maintain that the plaintiffs have not and cannot
have any copyright in these passages, the same being
[XXX] found in the last eleven volumes only of the
plaintiffs's work.
I proceed to specify these differences by a comparison
of the separate passages.
On page 178 of the defendants's work is
a passage occupying nearly a page which is found in the plaintiffs'
work vol. IV p. 60. The same passage is found in Allen's American
Revolution, vol. 1 page 452, but with certain differences here
specified.
Upham & Sparks Allen
Line 3d (in Upham) "will depend" "depend"
[...]
The punctuation in Allen differs from that in Upham and Sparks.
On page 290 to 291 of the defendants's work
is a passage, occupying one page, which is found in the plaintiffs'
work, vol. V p. 238. Of this passage, eight lines are found in
Gordon's American Revolution vol. III p 62. Of these eight lines, the
last two are not in Upham nor Sparks. There is a line
& a half in Upham, between the first and second sentences of
Gordon, which is not in Gordon. In the second sentence Upham
varies from Gordon in putting "been" before "this" & in using "suffering"
for "sufferings". Also one paragraph of this passage, being about
one half, is found in Pitkin's United States vol. II p. 162, with
the following differences
Chapter 1 Page 5
Upham and Sparks Pitkin
[...]
There remains one half page which appeared for the first time in
the work of the plaintiffs.
On page 327 of the defendants's work
is a passage, occupying about one third of a page, found in the
plaintiffs's work vol. VI p. 36, which is found in Gordon's American
Revolution vol. III p 179, and corresponds with it, except that in
line 5th Upham and Sparks have "the offending party" and Gordon
has "what was the offending party". And on pp. 327 & 328 is a
passage of one page, found in the plaintiffs's work, vol VI p 47
and which is also contained in Marshall's Life Of Washington vol.
III {Ed. 1804} p.578, with the following differences:
Upham & Sparks Marshall
[...]
The [XXX] passage from Marshall is one of those herein before mentioned
as being one of those contained in Memoirs etc. of Lafayette
Chapter 1 Page 6
4
On page 353 to 354 of the first volume of the defendants's
work is a passage of about a page, found in the plaintiff's work
vol. VI pp 297. 298, which is found in Almon's Remembrancer vol.
VIII p. 367. Upham & Sparks agree precisely and both differ
in some respect from Almon. The passage consists of two short
letters of Gen. Washington. In Almon the first one is dated
thus "Head quarters, New Windsor, July 16, 1779, half after nine
o' clock, a.m." In Upham and Sparks the date is "New Windsor
half past 9 o'clock 16 July 1779". In Almon the second
letter is dated "Head quarters, New Windsor, July 21, 1779".
In Upham and Sparks it is dated "New Windsor, 20 July 1779".
In the first line of the first letter Upham & Sparks have
the word "to" where it is omitted in Almon. There are
also one or two slight variations in point of spelling.
On page 368 of the first volume of the defendants's work is
a short passage of nine lines found in the plaintiffs's work
vol. VII p 31. This is also found in Almon's Remembrancer
vol X p. 197, with the following differences:
Upham & Sparks Almon
[...]
On page 373 of the first volume of the defendants's work
is a passage of a little more than a page, found in the work
of the plaintiffs vol VII p. 85. A part of this passage is found
in Almon's Remembrancer vol. X. p 239. 240, with the following
differences:
Upham & Sparks Almon
[...]
Chapter 1 Page 7
[...]
There are twenty two lines which are in Upham & also in
Sparks, not found in Almon.
On page 385 of the first volume of the defendants's work
is a passage of about a page, found in the plaintiffs's work
vol. VII p. 216, which is also to be found in the memoirs of
General Heath pp. 253 to 255, with the following differences:
Upham & Sparks Heath
[...]
On page 386 of the first volume of the [XXX]
defendants's work, is a passage of little more than a
page, found in the plaintiffs's work vol. VII p. 218 nearly
all of which is found in the Annual Register for 1780
p. 384, with the following differences:
Upham & Sparks Annual Register
[...]
Chapter 1 Page 8
5
Upham & Sparks Annual Register
[...]
There are also about twelve lines in Sparks & Upham which are
not found in the Annual Register. The same passage is also contained
in the 11th volume of Almon's Remembrancer page 1 & 2, corresponding precisely
with the Annual Register.
On page 389 of the first volume of the defendants'
work is a passage of about one page & a half, found in
the work of the plaintiffs vol. VII p. 235, a small portion of which
is found in Almon's Remembrancer vol. II p. 2, with the
following differences:
Upham & Sparks Almon
[...]
In the passage as found in Upham there are forty
three lines (also in Sparks), being about one page
which are not found in Almon.
On page 390 of the first volume of the
defendants's work is a passage of about two thirds of a
page, found in the work of the plaintiffs vol VII p. 256
which is also found in Thatcher's Military Journal p. 227
with the following differences:
Upham & Sparks Thatcher
[...]
Chapter 1 Page 9
[...]
Parts of the above passage are also to be found in Gordon's
Am[erican] Rev[olution] vol. III p. 490 and Bancroft's Life of Washington
p. 260. These correspond with Thatcher as above shown.
Chapter 1 Page 10
6
I now proceed to an examination of the second volume of the
defendants's work, and following the same course as with
the first volume, I report the following tabular view of
the passages in this volume of the defendants's work which are
taken from, and identical with, the work of the plaintiffs
and which never appeared in print until the publication
of the plaintiffs's said work, with the places where they
are to be found in the said second volume of the defendants's
work, and the number of pages they occupy therein.
[...]
Chapter 1 Page 11
I now proceed to report the passages in the second volume of the
defendants's work which are found in the work of the
plaintiffs, and which are also to be found in other works
published before that of the plaintiffs, with differences more
or less striking, which the plaintiffs contend are substantial
differences, which is denied by the defendants.
On page 21 there is a short passage of about twelve
lines (found in Sparks vol. VIII p. 7) which is found in Gordon's
American Revolution vol. IV p. 67, with the following differences:
Upham & Sparks Gordon
[...]
Chapter 1 Page 12
7
On page 53 is a passage of one half page, found in Sparks
vol. VIII p. 174, which is also found in Johnson's Life of Greene vol. II
p. 240, with the following differences:
Upham & Sparks Johnson
[...]
On page 58 & 59 is a passage of about a page & a half,
found in Sparks vol. VIII p. 182, found also in a work called
"Epistles domestic, confidential and official from Gen. Washington"
pp. 187 to 190, with the following differences:
Upham & Sparks Epistles etc
[...]
The same passage is also found in Almon's Remembrancer v. XIII p.
60, corresponding with the "Epistles etc" except in two places
where it conforms to Upham
On pages 61 to 64, is a letter from Washington
occupying a little over three pages, of which the first
paragraph, consisting of nine lines, and the last period
consisting of five lines, are found in the "Epistles etc" p.
199. These two extracts there purpose to be the whole letter.
The whole letter is found in Sparks vol. VIII p. 189. There
are in these fourteen lines so many variations, that
(for this reason and the fact that it is given in that work
Chapter 1 Page 13
as one letter whereas in Upham & Sparks it is the beginning
& end of a long letter) I report that these fourteen lines
must have been copied from the plaintiffs, as well as
the rest of the letter.
Pages 68 to 70 of Upham (vol 2d) are
occupied by a circular letter of Washington to the several states
(Sparks vol VIII p. 226) which is found in New Hampshire Hist.
Soc. Collections vol II p. 187, with the following differences:
Upham & Sparks N.H. Hist. Coll.
[...]
Pages 70 to the bottom of page 72 of Upham (vol. 2d) are
occupied by a similar circular letter of Washington to the several
States (Sparks vol. VIII p. 232) found also in New Hampshire
Hist. Soc. Collections vol II p. 191, with the following
differences:
Upham & Sparks N.H. Hist. Coll.
[...]
Chapter 1 Page 14
8
Upham & Sparks N.H. Hist. Coll.
[...]
On page 75 of Upham (vol. II) is a passage of little
more than half a page (Sparks vol. VIII p. 264) which is also found
in the "Epistles etc" p. 206, with the following differences:
Upham & Sparks Epistles etc
[...]
On page 86 of Upham (vol. 2d) is a passage
of about a [XXX] page and a half (Sparks vol. VIII p 549) which
is found in the Annual Register for 1783, p. 242, with the following
differences:
Upham & Sparks Annual Register
[...]
Chapter 1 Page 15
On page 97 of Upham (vol 2d) is a passage of
about three quarters of a page (found in Sparks vol VIII
p. 392) found also in Almon's Remembrancer vol. 16 p. 213
with the following variations:
Upham & Sparks Almon
[...]
Pages 106 to 108, two in number, in Upham are occupied by
a passage (Sparks, vol VIII p. 567), being a general order of Gen.
Washington on the cessation of hostilities. These general orders
are also found in various other works, the "Epistle etc", in
Washington's Political legacies, in the Memoirs of Gen. Heath, in
Almon's Remembrancer, and also in Thacher's Military Journal
pp. 332-334. I select Thacher for comparison as the
differences in him are less numerous than in the others. The
following are the differences between the passage in
Upham and Sparks, and in Thacher
Upham & Sparks Thacher
[...]
On page 121 to 124 of Upham (vol. 2d) is a letter
of Washingon to Lafayette (Sparks vol. IX . p 17), occupying
two pages and a quarter, the first paragraph of which, consisting
of about half a page, is found in Bancroft's Life of
Washington pp. 328.329, with the following differences
Chapter 1 Page 16
9
Upham & Sparks Bancroft
[...]
On page 124 of Upham (vol. 2d) is a letter
of Washington to Gen. Knox (Sparks vol IX p. 2) the first two
paragraphs of which, being about half a page, are found in
Bancroft's Life of Washington p. 329, with the following differences:
Upham & Sparks Bancroft
[...]
Page 140 to 141 of Upham (vol 2d) are occupied
by portions of a letter from Washington to Jay (Sparks vol IX p. 187)
which is found, with greater or less variations, in Life of Jay
vol. 1 pp. 247 to 249, Pitkin's United States vol. 2d p. 217, &
Marshall's Washington vol V p. 94. I select Marshall for
comparison, as he varies least from Upham:
Upham & Sparks Marshall
[...]
On pp. 184 . 186 of Upham are found some extracts,
about a page and a half in all, from a letter of Washington
to David Stuart (Sparks vol. X p. 99) which are also to
be found in Bancroft's Washington pp. 379, 380 with the
following differences:
Upham & Sparks Bancroft
[...]
Chapter 1 Page 17
[...]
Pages 229 to 231 of Upham (vol. 2d) are occupied by
a letter of Washington to Ed Randolph (Sparks vol X p. 45)
a part of which (about a page) is found in Pitkin's Civil
& Political History vol. 2d p. 448, with the following differences:
Upham & Sparks Pitkin
[...]
On pp. 232 . 233 of Upham (vol 2) is a passage
of about a page, from a letter of Washington to Ed Randolph,
(Sparks vol. X. p 49) found in Pitkin vol 2 p 448, with
the following differences:
Upham & Sparks Pitkin
[...]
Chapter 1 Page 18
10
Upham & Sparks Pitkin
[...]
Pages 247, 248 of Upham, vol. 2, are
occupied by a letter of Washington to Jay (Sparks vol. XI p.
123), being about a page, which is found in the Life
of Jay vol 1 p 394, with the following differences:
Upham & Sparks Jay
[...]
Pages 248 to 249 (about a page) in Upham (vol 2)
are occupied by a letter of Washington to the Emperor of Germany
(Sparks vol. XI p. 125) found also in Bancroft's Life of Washington
p 463 with the following differences:
Chapter 1 Page 19
Upham & Sparks Bancroft
[...]
Pages 251 & 252 of Upham (vol 2) are occupied by
a letter of Washington to Jefferson (Sparks vol XI p. 137)
which (excepting the first and last paragraphs and thirteen
lines in the middle) is found in Bancroft's Washington
p. 468 with the following differences. In Upham it
occupies nearly two pages.
Upham & Sparks Bancroft
[...]
Pages 272 to 273 (two pages and a half) of
Upham (vol. 2) are occupied by a letter of Washington
to Adams (Sparks vol XI p. 242) about one half of
which is found in Bancroft's Washington p. 508, with
the following differences:
Upham & Sparks Bancroft
[...]
Chapter 1 Page 20
11
Upham & Sparks Bancroft
[...]
Pages 274, 275 (about a page & a half) of
Upham (vol. 2) are occupied by a letter of Washington to
James McHenry (Sparks XI p. 246) nearly all of which is
found in Bancroft's Washington pp. 510, 511, with the following
differences:
p. 275 Upham & Sparks Bancroft
[...]
Pages 281 to 283 of Upham (vol 2) about two
pages, are occupied by a letter of Washington to Adams
(Sparks vol. XI p 261) which is found in Bancroft's Washington
p. 513 & Washington's Political legacies p. 98. The variations
in both of these works are the same, and I have selected
the latter for comparison, as it contains the whole letter,
while Bancroft omits a paragraph.
Upham & Sparks Pol. Leg.
[...]
Chapter 1 Page 21
[...]
Recapitulation
I find the whole number of pages in the two volumes
of the defendants's work, which correspond with the
passages in the plaintiffs's work and are identical with
them, to be (discarding fractions) Three Hundred and fifty
[XXX] three.
Of these pages Three hundred and Nineteen
have never appeared in print before the publication of
the plaintiffs's work, and I accordingly report them to
have been copied by the defendants from the work
of the plaintiffs.
The remaining Thirty four pages have appeared before,
in various other publications, with the variations herein before
stated. In view of these variations, and also in
consideration of the fact that these passages in the defendants'
work, generally speaking, differ in punctuation and other
typographical peculiarities from the same passages as
contained in works, other than that of the plaintiffs,
I find that these thirty nine pages were taken by
the defendants from the plaintiffs work and none other.
The whole of these Three Hundred and fifty three
pages in the two volumes of the defendants's work are
taken from the last eleven volumes of the work of the
plaintiffs.
Of the three hundred and Nineteen pages, above mentioned, which
are in the work of the defendants and which had not been
published in any other work than that of the plaintiffs, I
report Sixty four pages to be official letters & documents
and Two Hundred & fifty five pages to be private.
Chapter 1 Page 22
12
Of the remaining Thirty four pages I report fifteen pages
to be private, and Nineteen pages to be official.
Under the head of "official" letters and papers I class
the following:
Letters addressed by Washington, as commander in chief,
to the President of Congress.
Official letters to governors of states and speakers of
legislative bodies
Circular letters.
General orders
Communications (official) addressed as President to
his Cabinet.
Letter accepting the command of the army, on an
expected war with France.
All others I class as "private".
The paper marked A, hereto annexed, is offered in evidence
by the plaintiffs. It has been carefully compared by me
with the original, and I hereby certify it to be a
correct copy
The paper marked B, hereto annexed is offered in
evidence by the defendants. All of which is respectfully
submitted.
Geo. S. Hillard
Master in Chancery
Fees of the Master $125.00
Chapter 1 Page 23
Folsom et al in Eq.
vs
Marsh et al
Transcription by: Megan Wren
Source: National Archives, Northeast Region Facility RG 21 USCC MA, October Term 1841, at 10/2/8 Box 117.
Citation:
Master in Chancery Report, Massachusetts (1841), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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23 transcripted pages
Chapter 1 Page 1
In Chancery
Charles Folsom & al
vs.
Bela Marsh & al.
To the Honorable the Justices of the
Circuit Court of the United States for the first Circuit &
district of Massachusetts.
In pursuance of an order of this
Honorable Court made in the above cause and dated the twenty
first day of May A.D. 1841, I, the subscriber, Geo. S. Hillard,
one of the masters of this Court, hereby report as follows.
The work, of which the plaintiffs are
the proprietors, is comprised in twelve octavo volumes, varying
in length from five hundred & forty to five hundred and ninety
two pages and containing in the whole Six thousand seven
hundred and sixty three pages, including one hundred and fifty
eight pages of Index in the twelfth volume. The first volume
consists of an original life of Washington by Mr. Sparks,
one of the plaintiffs, and the remaining eleven, of the writings
and correspondence of Washington, with editorial notes and
illustrations by Mr. Sparks.
The work of which the defendants are
the proprietors is in two volumes duodecimo. The first volume consists
of Four Hundred and Forty three pages, including forty one pages
of glossary and index. The Second volume consists of four hundred
and twenty three pages, including thirty five pages of glossary &
index. The whole amount of the pages of the two volumes is
therefore Eight Hundred and Sixty six, including Seventy six pages
of glossary and index.
I proceed to report the coincidences of the first volume
of the defendants's work with that of the plaintiffs, and how far
the said first volume is identical with that of the plaintiffs.
In the first place I report the number of passages in the first
volume of the defendants's work which are taken from &
identical with, the work of the plaintiffs and which
never appeared in print until the publication of the plaintiffs'
said work.
The following is a tabular view of the said passages,
the places where they are to be found in the first volume of
the defendants's work, and the number of pages they
occupy therein.
Chapter 1 Page 2
[Table of the passages in Charles W. Upham's The Life of Washington
which are taken straight from Jared Sparks's edition of
The Writings of George Washington]
Chapter 1 Page 3
[...]
In the above list, the passage on pages 138 to 139 has appeared in the American
Archives 4th series vol. 2nd, p. 1764, which was published in 1839,
subsequently to the publication of the plaintiffs's work, but prior to
that of the defendants. Also the passages on pages 339 to 342,
358 to 362, 367 to 368, 392 to 396, amounting in all to eleven
pages are found in the Memoirs, Correspondence & Manuscripts
of General Lafayette, a work published in New York in 1837
subsequently to the publication of the plaintiffs's work, but prior
to that of the defendants. This work is protected by copyright
which is transferred to the family of Gen. Lafayette. The
letter contained in Upham pp. 339 to 342, has in the
Memoirs etc. the following note by the editors: "We believe
this letter never reached M. de Lafayette" In the Memoirs etc.
there is a postscript of three lines, which is found in Upham
but which is not in the work of the plaintiffs.
# To the preceding list should be added a page and a half
on pp. 289-290 of the defendants' work, and a passage
of one page on pp. 327-328, and a passage of two pages
on pp. 329-330 and a passage of a page & a
quarter on pp. 335 to 337, all of which are found in
the Memoirs etc. of Lafayette above mentioned. In all,
five pages and three quarters.
Chapter 1 Page 4
I now proceed to report the passages in the first volume of the
defendants's work which are found in the plaintiffs's work
but which are also to be found in other works published
before the plaintiffs's work.
The plaintiffs maintain that
there are substantial differences between these passages as
contained in the work of the plaintiffs and in the other
works, offered in evidence by the defendants.
The defendants
maintain that these differences are not substantial. They
also maintain that the plaintiffs have not and cannot
have any copyright in these passages, the same being
[XXX] found in the last eleven volumes only of the
plaintiffs's work.
I proceed to specify these differences by a comparison
of the separate passages.
On page 178 of the defendants's work is
a passage occupying nearly a page which is found in the plaintiffs'
work vol. IV p. 60. The same passage is found in Allen's American
Revolution, vol. 1 page 452, but with certain differences here
specified.
Upham & Sparks Allen
Line 3d (in Upham) "will depend" "depend"
[...]
The punctuation in Allen differs from that in Upham and Sparks.
On page 290 to 291 of the defendants's work
is a passage, occupying one page, which is found in the plaintiffs'
work, vol. V p. 238. Of this passage, eight lines are found in
Gordon's American Revolution vol. III p 62. Of these eight lines, the
last two are not in Upham nor Sparks. There is a line
& a half in Upham, between the first and second sentences of
Gordon, which is not in Gordon. In the second sentence Upham
varies from Gordon in putting "been" before "this" & in using "suffering"
for "sufferings". Also one paragraph of this passage, being about
one half, is found in Pitkin's United States vol. II p. 162, with
the following differences
Chapter 1 Page 5
Upham and Sparks Pitkin
[...]
There remains one half page which appeared for the first time in
the work of the plaintiffs.
On page 327 of the defendants's work
is a passage, occupying about one third of a page, found in the
plaintiffs's work vol. VI p. 36, which is found in Gordon's American
Revolution vol. III p 179, and corresponds with it, except that in
line 5th Upham and Sparks have "the offending party" and Gordon
has "what was the offending party". And on pp. 327 & 328 is a
passage of one page, found in the plaintiffs's work, vol VI p 47
and which is also contained in Marshall's Life Of Washington vol.
III {Ed. 1804} p.578, with the following differences:
Upham & Sparks Marshall
[...]
The [XXX] passage from Marshall is one of those herein before mentioned
as being one of those contained in Memoirs etc. of Lafayette
Chapter 1 Page 6
On page 353 to 354 of the first volume of the defendants's
work is a passage of about a page, found in the plaintiff's work
vol. VI pp 297. 298, which is found in Almon's Remembrancer vol.
VIII p. 367. Upham & Sparks agree precisely and both differ
in some respect from Almon. The passage consists of two short
letters of Gen. Washington. In Almon the first one is dated
thus "Head quarters, New Windsor, July 16, 1779, half after nine
o' clock, a.m." In Upham and Sparks the date is "New Windsor
half past 9 o'clock 16 July 1779". In Almon the second
letter is dated "Head quarters, New Windsor, July 21, 1779".
In Upham and Sparks it is dated "New Windsor, 20 July 1779".
In the first line of the first letter Upham & Sparks have
the word "to" where it is omitted in Almon. There are
also one or two slight variations in point of spelling.
On page 368 of the first volume of the defendants's work is
a short passage of nine lines found in the plaintiffs's work
vol. VII p 31. This is also found in Almon's Remembrancer
vol X p. 197, with the following differences:
Upham & Sparks Almon
[...]
On page 373 of the first volume of the defendants's work
is a passage of a little more than a page, found in the work
of the plaintiffs vol VII p. 85. A part of this passage is found
in Almon's Remembrancer vol. X. p 239. 240, with the following
differences:
Upham & Sparks Almon
[...]
Chapter 1 Page 7
[...]
There are twenty two lines which are in Upham & also in
Sparks, not found in Almon.
On page 385 of the first volume of the defendants's work
is a passage of about a page, found in the plaintiffs's work
vol. VII p. 216, which is also to be found in the memoirs of
General Heath pp. 253 to 255, with the following differences:
Upham & Sparks Heath
[...]
On page 386 of the first volume of the [XXX]
defendants's work, is a passage of little more than a
page, found in the plaintiffs's work vol. VII p. 218 nearly
all of which is found in the Annual Register for 1780
p. 384, with the following differences:
Upham & Sparks Annual Register
[...]
Chapter 1 Page 8
Upham & Sparks Annual Register
[...]
There are also about twelve lines in Sparks & Upham which are
not found in the Annual Register. The same passage is also contained
in the 11th volume of Almon's Remembrancer page 1 & 2, corresponding precisely
with the Annual Register.
On page 389 of the first volume of the defendants'
work is a passage of about one page & a half, found in
the work of the plaintiffs vol. VII p. 235, a small portion of which
is found in Almon's Remembrancer vol. II p. 2, with the
following differences:
Upham & Sparks Almon
[...]
In the passage as found in Upham there are forty
three lines (also in Sparks), being about one page
which are not found in Almon.
On page 390 of the first volume of the
defendants's work is a passage of about two thirds of a
page, found in the work of the plaintiffs vol VII p. 256
which is also found in Thatcher's Military Journal p. 227
with the following differences:
Upham & Sparks Thatcher
[...]
Chapter 1 Page 9
[...]
Parts of the above passage are also to be found in Gordon's
Am[erican] Rev[olution] vol. III p. 490 and Bancroft's Life of Washington
p. 260. These correspond with Thatcher as above shown.
Chapter 1 Page 10
I now proceed to an examination of the second volume of the
defendants's work, and following the same course as with
the first volume, I report the following tabular view of
the passages in this volume of the defendants's work which are
taken from, and identical with, the work of the plaintiffs
and which never appeared in print until the publication
of the plaintiffs's said work, with the places where they
are to be found in the said second volume of the defendants's
work, and the number of pages they occupy therein.
[...]
Chapter 1 Page 11
I now proceed to report the passages in the second volume of the
defendants's work which are found in the work of the
plaintiffs, and which are also to be found in other works
published before that of the plaintiffs, with differences more
or less striking, which the plaintiffs contend are substantial
differences, which is denied by the defendants.
On page 21 there is a short passage of about twelve
lines (found in Sparks vol. VIII p. 7) which is found in Gordon's
American Revolution vol. IV p. 67, with the following differences:
Upham & Sparks Gordon
[...]
Chapter 1 Page 12
On page 53 is a passage of one half page, found in Sparks
vol. VIII p. 174, which is also found in Johnson's Life of Greene vol. II
p. 240, with the following differences:
Upham & Sparks Johnson
[...]
On page 58 & 59 is a passage of about a page & a half,
found in Sparks vol. VIII p. 182, found also in a work called
"Epistles domestic, confidential and official from Gen. Washington"
pp. 187 to 190, with the following differences:
Upham & Sparks Epistles etc
[...]
The same passage is also found in Almon's Remembrancer v. XIII p.
60, corresponding with the "Epistles etc" except in two places
where it conforms to Upham
On pages 61 to 64, is a letter from Washington
occupying a little over three pages, of which the first
paragraph, consisting of nine lines, and the last period
consisting of five lines, are found in the "Epistles etc" p.
199. These two extracts there purpose to be the whole letter.
The whole letter is found in Sparks vol. VIII p. 189. There
are in these fourteen lines so many variations, that
(for this reason and the fact that it is given in that work
Chapter 1 Page 13
as one letter whereas in Upham & Sparks it is the beginning
& end of a long letter) I report that these fourteen lines
must have been copied from the plaintiffs, as well as
the rest of the letter.
Pages 68 to 70 of Upham (vol 2d) are
occupied by a circular letter of Washington to the several states
(Sparks vol VIII p. 226) which is found in New Hampshire Hist.
Soc. Collections vol II p. 187, with the following differences:
Upham & Sparks N.H. Hist. Coll.
[...]
Pages 70 to the bottom of page 72 of Upham (vol. 2d) are
occupied by a similar circular letter of Washington to the several
States (Sparks vol. VIII p. 232) found also in New Hampshire
Hist. Soc. Collections vol II p. 191, with the following
differences:
Upham & Sparks N.H. Hist. Coll.
[...]
Chapter 1 Page 14
Upham & Sparks N.H. Hist. Coll.
[...]
On page 75 of Upham (vol. II) is a passage of little
more than half a page (Sparks vol. VIII p. 264) which is also found
in the "Epistles etc" p. 206, with the following differences:
Upham & Sparks Epistles etc
[...]
On page 86 of Upham (vol. 2d) is a passage
of about a [XXX] page and a half (Sparks vol. VIII p 549) which
is found in the Annual Register for 1783, p. 242, with the following
differences:
Upham & Sparks Annual Register
[...]
Chapter 1 Page 15
On page 97 of Upham (vol 2d) is a passage of
about three quarters of a page (found in Sparks vol VIII
p. 392) found also in Almon's Remembrancer vol. 16 p. 213
with the following variations:
Upham & Sparks Almon
[...]
Pages 106 to 108, two in number, in Upham are occupied by
a passage (Sparks, vol VIII p. 567), being a general order of Gen.
Washington on the cessation of hostilities. These general orders
are also found in various other works, the "Epistle etc", in
Washington's Political legacies, in the Memoirs of Gen. Heath, in
Almon's Remembrancer, and also in Thacher's Military Journal
pp. 332-334. I select Thacher for comparison as the
differences in him are less numerous than in the others. The
following are the differences between the passage in
Upham and Sparks, and in Thacher
Upham & Sparks Thacher
[...]
On page 121 to 124 of Upham (vol. 2d) is a letter
of Washingon to Lafayette (Sparks vol. IX . p 17), occupying
two pages and a quarter, the first paragraph of which, consisting
of about half a page, is found in Bancroft's Life of
Washington pp. 328.329, with the following differences
Chapter 1 Page 16
Upham & Sparks Bancroft
[...]
On page 124 of Upham (vol. 2d) is a letter
of Washington to Gen. Knox (Sparks vol IX p. 2) the first two
paragraphs of which, being about half a page, are found in
Bancroft's Life of Washington p. 329, with the following differences:
Upham & Sparks Bancroft
[...]
Page 140 to 141 of Upham (vol 2d) are occupied
by portions of a letter from Washington to Jay (Sparks vol IX p. 187)
which is found, with greater or less variations, in Life of Jay
vol. 1 pp. 247 to 249, Pitkin's United States vol. 2d p. 217, &
Marshall's Washington vol V p. 94. I select Marshall for
comparison, as he varies least from Upham:
Upham & Sparks Marshall
[...]
On pp. 184 . 186 of Upham are found some extracts,
about a page and a half in all, from a letter of Washington
to David Stuart (Sparks vol. X p. 99) which are also to
be found in Bancroft's Washington pp. 379, 380 with the
following differences:
Upham & Sparks Bancroft
[...]
Chapter 1 Page 17
[...]
Pages 229 to 231 of Upham (vol. 2d) are occupied by
a letter of Washington to Ed Randolph (Sparks vol X p. 45)
a part of which (about a page) is found in Pitkin's Civil
& Political History vol. 2d p. 448, with the following differences:
Upham & Sparks Pitkin
[...]
On pp. 232 . 233 of Upham (vol 2) is a passage
of about a page, from a letter of Washington to Ed Randolph,
(Sparks vol. X. p 49) found in Pitkin vol 2 p 448, with
the following differences:
Upham & Sparks Pitkin
[...]
Chapter 1 Page 18
Upham & Sparks Pitkin
[...]
Pages 247, 248 of Upham, vol. 2, are
occupied by a letter of Washington to Jay (Sparks vol. XI p.
123), being about a page, which is found in the Life
of Jay vol 1 p 394, with the following differences:
Upham & Sparks Jay
[...]
Pages 248 to 249 (about a page) in Upham (vol 2)
are occupied by a letter of Washington to the Emperor of Germany
(Sparks vol. XI p. 125) found also in Bancroft's Life of Washington
p 463 with the following differences:
Chapter 1 Page 19
Upham & Sparks Bancroft
[...]
Pages 251 & 252 of Upham (vol 2) are occupied by
a letter of Washington to Jefferson (Sparks vol XI p. 137)
which (excepting the first and last paragraphs and thirteen
lines in the middle) is found in Bancroft's Washington
p. 468 with the following differences. In Upham it
occupies nearly two pages.
Upham & Sparks Bancroft
[...]
Pages 272 to 273 (two pages and a half) of
Upham (vol. 2) are occupied by a letter of Washington
to Adams (Sparks vol XI p. 242) about one half of
which is found in Bancroft's Washington p. 508, with
the following differences:
Upham & Sparks Bancroft
[...]
Chapter 1 Page 20
Upham & Sparks Bancroft
[...]
Pages 274, 275 (about a page & a half) of
Upham (vol. 2) are occupied by a letter of Washington to
James McHenry (Sparks XI p. 246) nearly all of which is
found in Bancroft's Washington pp. 510, 511, with the following
differences:
p. 275 Upham & Sparks Bancroft
[...]
Pages 281 to 283 of Upham (vol 2) about two
pages, are occupied by a letter of Washington to Adams
(Sparks vol. XI p 261) which is found in Bancroft's Washington
p. 513 & Washington's Political legacies p. 98. The variations
in both of these works are the same, and I have selected
the latter for comparison, as it contains the whole letter,
while Bancroft omits a paragraph.
Upham & Sparks Pol. Leg.
[...]
Chapter 1 Page 21
[...]
I find the whole number of pages in the two volumes
of the defendants's work, which correspond with the
passages in the plaintiffs's work and are identical with
them, to be (discarding fractions) Three Hundred and fifty
[XXX] three.
Of these pages Three hundred and Nineteen
have never appeared in print before the publication of
the plaintiffs's work, and I accordingly report them to
have been copied by the defendants from the work
of the plaintiffs.
The remaining Thirty four pages have appeared before,
in various other publications, with the variations herein before
stated. In view of these variations, and also in
consideration of the fact that these passages in the defendants'
work, generally speaking, differ in punctuation and other
typographical peculiarities from the same passages as
contained in works, other than that of the plaintiffs,
I find that these thirty nine pages were taken by
the defendants from the plaintiffs work and none other.
The whole of these Three Hundred and fifty three
pages in the two volumes of the defendants's work are
taken from the last eleven volumes of the work of the
plaintiffs.
Of the three hundred and Nineteen pages, above mentioned, which
are in the work of the defendants and which had not been
published in any other work than that of the plaintiffs, I
report Sixty four pages to be official letters & documents
and Two Hundred & fifty five pages to be private.
Chapter 1 Page 22
Of the remaining Thirty four pages I report fifteen pages
to be private, and Nineteen pages to be official.
Under the head of "official" letters and papers I class
the following:
Letters addressed by Washington, as commander in chief,
to the President of Congress.
Official letters to governors of states and speakers of
legislative bodies
Circular letters.
General orders
Communications (official) addressed as President to
his Cabinet.
Letter accepting the command of the army, on an
expected war with France.
All others I class as "private".
The paper marked A, hereto annexed, is offered in evidence
by the plaintiffs. It has been carefully compared by me
with the original, and I hereby certify it to be a
correct copy
The paper marked B, hereto annexed is offered in
evidence by the defendants. All of which is respectfully
submitted.
Geo. S. Hillard
Master in Chancery
Fees of the Master $125.00
Chapter 1 Page 23
vs
Marsh et al
Transcription by: Megan Wren