One point the Corporation would not concede: point 10 of its vote decreed the removal of most of the books and specimens to Cambridge, declaring that the step "is in the best interests of the Arboretum and will promote the purposes of its endowment."

"Form, not substance," was the reaction of the Arboretum group, and their tempers were not sweetened when the Corporation ordered the new building begun. Wishing to retain the gardens as the unit Sargent had built, they could brook so such withdrawals, which they said was "milking" the Arboretum and turning it into a "park."

Charitable trusts cannot be sued by just anyone; unlike the usual trust, the beneficiary is the public and it falls on the Attorney General to bring suit. He may sue on his own initiative or give private citizens the use of his name; in either case, it is a discretionary matter. Nine Association members and Godfrey Lowell Cabot '88 prepared to ask Attorney General Fingold for permission to hall Harvard into Court. Support of this suit, in fact, was the immediate point of the Association. Numbering roughly 600, its members reflect twenty-eight states, D. C. and Canada. Officers of the two national garden club groups are on its lists as well as other famous botanists Many a good old Boston name is represented, from a number of Cabots to professor Samuel Eliot Morlson. Women are predominant.

When counsel applied for use of Fingold's name, Assistant Attorney General Harris J. Booras was given the job of investigating. Twice he spoke with both sides, and he made trips to the Arboretum land the new herbarium in Cambridge. He also received bales of letters, one of which--from Oscar M. Shaw of Ropes, Gray--assumed major importance. This letter, which according to the petitioners "teems with bad law, unjustifiable statements of alleged fact and misleading advice." was more or less followed in the memo handed down by Booras later, the memo which concluded 'by direction of the Attorney General, the application is denied."

Appeal to Court

The Association, unconvinced, had no choice but to appeal to the courts. They could not sue Harvard themselves, nor force the Attorney General to do so; yet their strongest feeling has been that some judicial test is necessary. The case of John S. Ames et al.V.Attorney General, therefore , is for a writ of Mandamus to compel Fingold to rehear their application according to "a proper appreciation of his own duty and the rules of law applicable to the questions involved "Meanwhile there were still quiet efforts to smooth out affairs. Two Association directors had been meeting with Harvard officials, and once a nonlegal delegation discussed the case with President Pusey. The result of these goings on was a letter from the President to members of the Association deploring the ill-will, outlining the concessions he and the Fellows had made, and pleading for confidence. The reaction was as cool as the air conditioning in the new herbarium. The two directors, however, resigned from the Association at this failure.

Tricky Legal Point

It is useless to try explaining the legal issues in detail. The briefs take up some 200 pages, and there is little fat in them. the major argument between petitioners and the Attorney General are on the question of his discretion. His view precludes any review of his decision at ll while the petitioners think otherwise, at least so far as a writ of Mandamus is concerned. The Attorney General considers it his duty to look into the merits of the case before lending his name, while the petitioners would limit him to deciding whether the case was doubtful and whether the applications were made in good faith.

The petitioners must also prove their case against Harvard to defeat the Attorney General. The gap between the opinions is narrower than at the dispute's earlier stages; with the concession of January 1953, there is less to argue about. The primary differences, however, still seem to stem from different conceptions of what, exactly, the Arboretum is. The arguments in Harvard's favor seem to view the trust as a fund with a set of purposes attached, while the petitioners focus on what is going to happen to those 265 acres in Jamaica Plain. The Association sees only the collapse of an identifiable unit, the disappearance of a unique institution among the folds of the Harvard empire. It is on his point that the question of whom is benefit ted seems to turn. And the petitioners must impress the court with their view, for without it, they cannot even begin to make out a case of improper motive against the Corporation.

The case came up for a hearing two weeks ago before Chief Justice Qua and Justices Williams, Lummus, and Couhihan. Both sides spoke at length, but the Court for the most part interrupted only Mr. Dodge. The questions referred to the writ of Mandamus, and the merits of the Arboretum dispute itself were not stressed. At one point the Chief Justice commented, "Petitioners position appears to be a novel one.