SENATE, ,No. 1 THE %-m/lya/ ATTORNEY GENERALS ANNUAL REPORT JAl^lJARY 8, 1835. iSof^ton: DUTTON AND WENTWORTH, PRINTERS TO THE STATE. 1833. tArit HOUSED BOSTON. m 271888 \^ Boston, 8th January, 1835. To the Honorable the President of the Senate, Sir: I beg leave to present through jou to the Leg- islature my Annual Report for the year ending on 31st October last. With the highest respect, JAMES T. AUSTIN, Attorney General, eommontnealtti of J^as^i^actiugctti^. To the Honorable the Legislature of Massachusetts. In obedience to that part of the statute of 1832, chap- ter 131, which requires the Attorney General " to make and submit to the Legislature, at the commencement of each session thereof, a report of all the business done by him during the preceding year, by virtue of his office, specifying the suits and prosecutions, to which he may have attended, the names of the persons prosecuted for crimes, — the crimes for which, and the counties where such prosecutions were had, the results thereof, and the punishments awarded therefor," I have the honor to present the annexed papers, marked A? as such report. In obedience to another part of the same Statute, which directs him ** to embrace in his Report to the Legislature an abstract of the Annual Reports of the several District Attornies," which by law they are re- quired to make in detail to the Attorney General, I have prepared the several papers marked B C D E & F, which contain an abstract of the report of each of said officers. To these are added the Tabular Statements marked G & H, for the purpose of presenting more ex- actly the statements, which the Statute intends should be collected and preserved. 6 ATTORNEY GENERAL'S REPORT. Jan In obedience to the further command of the aforesaid Statute, which enacts that the Attorney General '' shall annually present to the Legislature such observations and statements, as in his opinion the criminal jurispru- dence, and the proper and economical administration of the criminal law warrant and require," 1 have the honor most respectfully to state, — L That these several papers are made to conform to the terms of the law. I have not deemed myself author- ized, in this or former reports, to present an abstract of the Attorney General's employments, when the Statute provides that they shall be reported in detail; nor to give a detail of the labors of the District Attornies, when the Statute requires that an abstract shall be furnished. n. These several exhibits are made as nearly as pos- sible to conform to those Tables, which, in Europe, are denominated " Statistics of Crime." It is not known that any others are prepared in the United States. Although only two previous reports have been made under this law, one of them for the period of only a few months, they have attracted considerable attention at home and abroad. Copies have been sought for in England, France, and Germany, by political economists and statesmen, who regard the subject matter of them as of vast importance, not merely to the pecuniary interests, but to the permanent welfare of society. It is not yet well understood by them, how far personal liberty and personal security can consist with each other, or to what extent freedom of individual action is compatable with the dominion of laws. Nor is it a subject of less intense anxiety with these philanthropists to ascertain, whether the mild and humane code of criminal punishments, here established, will secure those great objects of civil soci- 1835 SENATE— No. 1. 7 ety, which elsewhere, but in vain, have been nurtured in blood. The department of criminal justice in the United States, is one of the political institutions of our country which give a strong cast to our national character. Whoever looks upon it as the mere instrument of inflict- ing punishment on an individual on trial, takes a very narrow and false view of its capacity and power. It is not so considered abroad. It should be more wisely estimated at home. It is the protector, the preserver, the vindicator of those rights, for which society is estab- lished, by directing but not subjugating the rational lib- erty of the citizen. In the great experiment of freedom and the extension of the rights of man, this institution, which elsewhere has been used for their overthrow, is here erected for their defence ; and to the character and condition of this institution in Massachusetts, as among the elder and enlightened members of the American confederacy, the most careful observation is turned to discover how favorably it has been exerted, and how firmly it is sustained. III. This Report cannot by itself be a complete his- tory of crime. It does not pretend to be. It purports to speak only of proceedings in Courts of criminal jus- tice. A vast proportion of actual crime is never the subject of judicial animadversion. The criminal is un- known, or escapes, or is never prosecuted, or is protect- ed from punishment by the connivance of witnesses or the exertion of friends, or at times by the prevalence of a bad state of public feeling. We know but too well that the long and melancholy catalogue of offences, which are enumerated in this re- port, is but a partial approximation to the sum total of 8 ATTORNEY GENERAL'S REPORT. Jan annual crimes. Infantacide and other murders, highway robberies, burglaries, arson, larcenies in aggravated form, forgeries, counterfeitings, perjuries, and a host of misde- meanors, which derange and disturb society, have been perpetrated in this Commonwealth during the year, in many instances without detection. The time and place may be fixed with certainty, but the actors are yet un- whipped of justice. IV. This and former reports do not present of them- selves an exact account of the labor and service perform- ed by the prosecuting officers. The details, for such a purpose, are not to be taken by numbers. They must be compared with other matters, for the purpose of extracting from them this useful piece of information. Many prosecutions are brief, simple, and easy. The forms of presenting them are short, and the process by which they are conducted scarcely imposes any serious responsibility. Others are difficult, complicated and pro- tracted. These tax every faculty of mind and exhaust every energy of body, requiring an exactness and assidu- ity that is most wearisome and overpowering to the coun- sel engaged. The injustice of estimating the professional or physi- cal labor required in the service of the Commonwealth, by the mere numerical amount of the cases to which it is applied, is apparent in every line of these returns. Thus the attorney of the Southern District may be gone four days among the islands in his district and put but one, or at most, two cases in his report, while, when the court sits near his residence, he would in the same time have completed half the business of a common term, which on an average brings from twenty to thirty cases. 1835 SENATE— No. I. 9 Again, the Attorney General was absent from home ten days to attend the trial of two cases in the county of Hampden in the month of September, at the hearing of which the court was in session fourteen hours a day. During the same month the attorney in Suffollc has placed to his credit twenty-one cases, begun and ended at a court which opened on the first day and finished on the fifth.* Persons accustomed to judicial proceedings see this operation at a glance, and acquire from these statistics, when the proper estimate is made of them, useful infor- mation as to the state of society ; competent knowledge of the practical operation of the laws ; a general idea of the labor and responsibility of directing the machinery of justice, and of the amendments, which from time to time are required, for its more useful application. The legis- lature will be able to obtain from them, after a sufficient series shall have been presented, a knowledge of the de- fence which their wisdom has erected against the danger- * These reports must be read right, in order that they should impart cor- rect information. In a report made the last year to the Senate, by the Com- mittee of Claims, [See Doc. No. 56 Senate, 1834,] it is said, " Upon examina- tion of the Attorney General's report, it will be seen that after deducting cases were no bills were found, the whole number of indictments and other pro- cesses for the year, was 1178, half of which is 589. But in the county of Suffolk alone, 515 of these indictments and processes were found and tried, being only 74 less than half of the whole number of indictments and pro- cesses found and tried throughout the Commonwealth." Every figure in this statement is wrong. The whole number of indictments and processes, after deducting cases where no bills were found, was, by the Attorney Gen- eral's Report, 1031, of which 516 would be half. The whole number credit- ed to the County Attorney of Suffolk was 497, and not 515— but of these 497 there were 115 peace processes on which no bills were found, so that his total number of bills drawn was 382, and not 515, being one hundred and thirty three, or above one third less than the number supposed by the Committee of Claims. Justice to other gentlemen requires this corrrec- tion. 2 10 ATTORNEY GENERAL'S REPORT. Jan ous and lawless members of the community, and the ca- pacity and vigilance of the sentinels whom the Executive has placed upon the ramparts. V. This report is made under that system for the ad- ministration of justice, which was established in 1832, and began its operation in June of that year ; but which has not yet been long enough in force to develope all its advantages or defects. It will receive illustration from the official reports of cases argued in the Supreme Judicial Court, when in the course of publication they shall arrive at the period of the operation of the present system. At present, no case occurring under this sys- tem, although many have been discussed at great length before that court, are contained in the printed volumes of its reports. When the report of these cases shall ap- pear, the utility and the effect of the system in its promptitude and economy, will be better seen ; amend- ments, suggested by experience, more easily made, and erroneous impressions, if any have been hastily formed, be the more readily effaced. It may, however, be now confidently stated, that if this or some similar system had not been adopted, the current of justice in civil actions would have been com- pletely obstructed. The Supreme Court in some of the counties would have been chiefly occupied as a court of criminal jurisdiction. It will deserve consideration whether more may not be done to relieve that court. One of the chief defects of the present system is, that it is not uniform throughout the Cornmomvealth, This defect may be very easily remedied with the double advan- tage of doing equal and exact justice in one uniform and regular mode, and producing a large diminution of ex- pense. 1835. SENATE— No. 1. 11 VI. While this system was still in experiment, and be- fore its operations had developed themselves, it pleased the Legislature of 1834, to entertain a proposition, and to pass two acts of a character most materially to affect it. The proposition to abolish the office of Attorney General, and the two laws of 1834, chap. 200, and 202, are here intended. It is my official duty, notwithstanding any supposed personal interest in these matters, to submit to the Leg- islature such observations concerning them '^ as the pro- per and economical administration of the criminal law may warrant and require." I shall discharge this duty with fidelity, respectfully, but plainly. At the same time I beg to have it under- stood that the present Attorney General has little more interest in the subject than any other citizen of the Com- monwealth. The emolument of the office never at its highest rate exceeded the half of what individual citizens would have felt bound to pay for similar services. The industry and labor demanded for the public service could not fail to attract higher rewards, if directed to private practice, while the inevitable consequence of any consid- rable engagement for the public is to transfer the most lucrative professional business to other hands. And if the honor of the station is the current coin with which the Commonwealth would be willing to pay its profes- sional agents, this, it must be conceded, is very much alloyed, when the Legislature undertakes to deny the ne- cessity, or to underate the value of the duty it yet thinks proper to demand. VII. The office of Attorney General, with specific du- ties, existed in Massachusetts for more than one hundred years before the establishment of the present form of 12 ATTORNEY GENERAL'S REPORT. Jan government, and has continued through all the changes of our political history. It is recognized and confirmed by the constitution of the Commonwealth. So long as there are duties to be performed, which are the appropriate functions of such an office — and that will be until the na- ture of man is changed, or the Millenium shall arrive — so long it cannot be abolished, without a violation of the spirit of the Constitution. The same Constitution which presupposes the exist- ence of such an officer, renders him ineligible to a seat in either branch of the Legislature ; either on the presump- tion that his time must be mainly employed in official avocations, or because of that laudable jealousy of exec- utive influence which has always existed among the peo- ple ; — probably by the joint operation of both these causes. But it could never be deemed consistent with the spirit of the Constitution to transfer these duties to some other public agent, with a higher salary, and a dif- ferent name, whom the Legislature could not exclude from being eligible ; thereby evading the provision which the Constitution meant to establish. The power and duties of the Attorney General, under the Constitution and laws of the Commonwealth, have always been and yet are of a high and important charac- ter, and the whole people have a deep and permanent in- terest in their faithful and correct performance. By force of his commission and the laws and usages of the state, he is charged with the entire control of all prosecutions for crime, ivhenever or wherever instituted within the Commonivealih, He is virtute officii, entrusted in many cases, and to a considerable extent, with the liberty and property, and in some instances, with the life 1835. SENATE— No. 1. 13 of a fellow citizen, with no other responsibility than what he owes to God, his conscience, and the laws. The power exists with him to conduct a prosecution or discharge it, and to revise and control, whenever he chooses to exercise a direct agency in regard to them, all prosecutions in the name of the Commonwealth. This power, which like all others in the last resort, must be placed somewhere, the Constitution reposes in the hands of the Attorney General of the Commonwealth, and to guard against the abuse of this power, and to pre- serve the rights of the people for whose benefit it is to be exercised, the Supreme Executive is directed to see that it is placed in competent and faithful hands. If for a moment this power was to cease, the community must suffer ; and if by removing it from the office to which it constitutionally belongs, it was to be divided among sev- eral individuals, each of whom in his own local district would have the same power to the same extent, the se- curity of the innocent on the one hand, and the vindica- tion of the laws on the other, would be entirely in a dif- ferent condition from that, which was contemplated by the framers of the Constitution, and the earlier statesmen of the country. In addition to the duties of a public prosecutor, the At- torney General is charged with the care and direction, within the State, of all civil process to which the State is a party, or may be indirectly interested. The interests of the State have been at times, and may be again, of very great importance in courts of justice. The State is a large proprietor both of real and personal estate, has great demands in the shape of taxes, or upon those whose duty it is to collect and pay them into the public treasury, and about which questions are continually arising more U ATTORNEY GENERAL'S REPORT. Jan or less intricate ; has bonds of various public functiona- ries, licensed persons and debtors to be examined and claimed, and incidental matters growing out of its vast and increasing relations, which must be subjected to the examination of judicial courts. The statute of 1832 has included his compensation for attending to the civil business of the State in the amount of his annual salary. Although it was always the duty of the Attorney Gen- eral to do such civil business in his profession as the State required, it was heretofore the subject of a separate charge, and there have been paid large sums from time to time for this necessary occupation. The policy of the new system was to include it as a part of the duty for which the salary was granted, and cut off all vexatious claims for extraordinary services. The officer of the Constitution — as his name implies — is charged with the duty of superintending all these mis- cellaneous affairs, independent of any statute provisions by which other duties are assigned to him. As it is impossible that any one individual should per- sonally attend to these multifarious and important con- cerns, the Legislature has from time to time appoint- ed assistants, to whom they have assigned more or less of the inferior portions of service, under his direction ; but as by the intention of the Constitution this duty is his duty, to be superintended by him and performed by him so far as his personal application to it may reasona- bly be required, and to be entrusted to others only when he cannot discharge it himself, by reason of other or higher engagements, it would seem to follow that the appointment of these subordinate officers should never supercede that of the principal. If in any division of labor an unequal appropriation has 1835. SENATE-^No. 1. 15 been made, so that more is taken from the Attorney Gen- eral, and more given to others, than a just regard to per- sonal and public convenience requires, it is a sufficient reason for making a new and more exact distribution, or diminishing the number of the subordinate agents, but none at all for abolishing the principal officer, whom, by the intendment of the Constitution, they are not to super- cede but assist. Vlli. The Attorney General of the Commonwealth always has and yet does constantly perform all the gen- eral duties thus described. The statute of 1832 enacts that the Attorney General when present shall in any court have the direction and control of prosecutions and suits in behalf of the Com- monwealth. But this is a mere enactment of what, in- dependent of any statute, had always been the established law of the land. In pursuance of his general duties the present Attorney General, in a circular to the local offi- cers, soon after his appointment, addressed them as fol- lows : " 1 avail myself of this occasion to request, that when- ever any professional or other consideration renders the management of any particular case for the Common- wealth personally objectionable to you, and especially where any excitement exists in the community, or the enforcementof public justice requires in your opinion the aid of additional council, you would seasonably and free- ly make it known to me, that 1 may be prepared to ren- der any assistance that may be practicable. " It is not my inclination to limit my official labors by the strict letter of the law which prescribes them, but en- tering into the spirit of the Legislature, which intended to give force and efficiency to the system, I shall be ready 16 ATTORNEY GENERAL'S REPORT. Jan to discharge at any time and at any place those implied duties, which the public exigency requires, or the reason- able convenience of my colleagues may give them a right to expect." The services, thus profered, are not enjoined by the statute ; the power to perform them is alone indicated by that law. But the obligation to perform them and the claim of the Commonwealth to expect their performance rests on the general constitutional character of the office and the fidelity of the officer. A general superintendence and direction of the de- partment by one head, and the actual appropriation of his time to such of its details as circumstances demand, are required by the public interests, and will necessarily vary, from time to time, in the degree and difficulty of the labor they impose. If an Attorney General should look no where but to the statute of 1832, and to other special statutes, for a knowledge of his duties, and if the public would be sat- fied with a literal compliance with their limiied requisi- tions, his task would be comparatively light, and his ser- vices more easily dispensed with. But it is not so. The statutes describe but an outline of these duties, and leave to the common-law obligation of the officer to put himself wherever the public justice demands that he should be found, — to be personally present in any court where high and important questions of public interest to the Commonwealth are to be discussed ; to appear for the State, where the novelty or the intricacy of a cause presents difficulties that the experience of older, or the effi)rts of united counsel may best overcome; to be found where temporary excitement interrupts the ordinary march of justice, or where the personal relations of the 1835. SENATE— No. 1. 17 local officer render a discharge of his usual duties incon- venient or embarrassing. There is not in the existing Statutes any direction to the Attorney General to attend any nisi prius term of the Supreme Judicial Court, or any term of the Common Pleas, or any Court of Probate, or any session of Justices of the Peace, and yet in all these places the State has occasionally deep interests. It would not be possible to impose upon any officer the duty of attending in all such Courts, because in the nature of things, it could not al- ways be performed; or if it could, yet, as this attendance would not always be necessary, such an unconditional obligation would be useless. But as it is sometimes im- portant, it must not at those times be omitted. Under the general duty of superintending the concerns of che Commonwealth, as its general Attorney, this service is expected of the head of the department, and the ame, the place, the circumstances which require its exercise, are to be decided by that officer upon his own judgment and fidelity, and under the responsibility of his station. The general superintending power inherent in the office of Attorney General, is the highest and most important part of its constitutional and legal character, and on the due exercise of it the State is most particularly interested. It involves a large latitude of discretion, and the compe- tency of the officer for his situation, and the value which the public receive from his services, will depend on his willingness to do this ever varying portion of the public business, and on the judgment and fidelity by w^hich his exertions are directed. In the former and present reports the operation of this sentiment of duty on the present incumbent, amply ap- pears. Much of this and former reports of services ran- 18 ATTORNEY GENERAL'S REPORT. Jan dered by him to the Commonwealth, consists of services resulting from the nature and design of the office, the calls of public justice, and the supposed interests of the Commonwealth, and not merely of matters enjoined and set down by statutory provisions of laws ; and he feels some pride — which, in reference to the proceedings of the last Legislature, he hopes it may not be deemed an infringe- ment of propriety to avow — that these reports will show that he has never hesitated to assume and perform in de- tail, whatever business in his department the public exigency required, and that he has not shrunk from the exercise of any part of these duties, even since a reasonable excuse has been given him for measur- iiig his exertions by the narrowest requirements of the laws. IX. The duties of the Attorney General, on the con- struction here given to them, will constantly fluctuate. It can hardly be expected that the State will see two such quiet years as 1832, 1833, and it is to be hoped its terri- tory will not again be desecrated by such horrible and flagitious crimes as are recorded in the annals of the year 1 834 ; but the great increase and prevalence of crime is not the result of accidental or temporary causes. The influx of desperate foreigners, attracted by the wealth to be plundered, enroMraged rather than deterred by the mildness of the laws, and depending for their escape from all punishment, on the ingenious use they can make of the property they may unlawhlly obtain, will continue to give employment to courts of justice. At home, too, and among the native population, are deep and growing causes for crime, serious and alarming to a degree heretofore unknown. While the prospect is a discouraging one over the whole Commonwealth, the outbreak may, as in past 1835. SENATE— No. 1. 19 jears, be greater in one quarter than another.* Whether any of the defences established for common security, can be reasonably changed or thrown down, is a question of much more serious consequence to the public than it can be to any individual citizen. X. Under the prescribed and implied duties of his of- fice, the Attorney General, during the past year ending on the 31st of October, 1834, has been required officially to attend personally to three hundred separate and distinct matters on the part of the Commonwealth. Many of them were of the highest and most difficult kind, inclu- ding the actual trial by jury before the Supreme Court, of six capital cases, of which no man may speak lightly who has a decent knowledge of professional labor or per- sonal responsibility. He has among a multitude of other official requisitions, conducted the examination of about two hundred and fifty witnesses,t prepared sixteen writ- ten opinions on questions of law, maintained a correspon- dence wdth other public functionaries, and with citizens of this and other States, who had, or thought they had, the right to lay their several cases before him. He has collected and paid into the treasury the sum of five hun- dred and forty-six dollars, and obtained another judgment from which the Commonwealth will receive about nine * These changes are constantly occurring. Thus, notwithstanding the great increase of criminal businesy through the Commonwealth, the Muni- cipal Court in Boston, which, in 1833, was in session for one hundred and twenty-seven days, was enabled, in 1834, to complete its business in ninety- seven days. •j-The number of witnesses examined furnishes but httle information, without some acquaintance with the cause. On the circuits of the Common Pleas, the testimony of one hundred witnesses is often taken in three days. In the trials in the Supreme Court, the examination of half the number* lasted for a week. 20 ATTORNEY GENERAL'S REPORT. Jan hundred dollars more. In the performance of these du- ties, he has travelled between five and six hundred miles into almost all parts of the State. What has occurred since the 31st October, does not belong to this report, but the judicial year opened with a certainty of many capital trials in different counties, and the revision of all those legal questions which past operations have been preparing for argument. Whether, when these various avocations are duly con- sidered, in relation to time, place or personal responsi- bility, the interests involved in many of them, the con- tentious and persevering opposition that is made to every movement of a public prosecutor, the rank and ability of the counsel by whom he is every where oppo- sed, and the professional reputation which the represen- tative of the Commonwealth must endeavor^ at any ex- pense of time, labor, study and industry, to maintain ; whether, these things considered, the office of Attorney General is a useless one, or the place a sinecure, the Legislature is respectfully invited, on a revision of the subject, to decide. XL The Attorney General is by the Constitution, an- cient usage, and the general policy and provisions of law, the legal adviser of the Supreme Executive of the State. The exercise of the duty thus imposed on this public officer, has been in many former periods of the history of the Commonwealth, very frequent and neces- sary. Indeed, unless it is intended to reserve the Chair of State for the exclusive possession of a professionally educated lawyer, it is not easy to perceive how this ad- junct to that high station can be easily dispensed with. If to almost every municipal corporation such assistance is more or less required, the State, in its multifarious 1835. SENATE— No. 1. 21 concerns, and the Chief Magistrate of the State, in the execution of his complicated and intricate duties, must frequently have recourse to the official aids by which the Constitution and the laws have surrounded him. The statute of 1832, reaffirms and continues the duty thus originally appointed, not as a new one, but as com- ing within the general scope of those services for which the salary was established, instead of permitting the compensation, as had formerly been the case, to be made by special remuneration or occasional grants. In so doing, the Legislature of 1832 followed out the ancient provisions of the Constitution, wuth the amend- ments which modern economy had provided, and a sen- sible policy sustained. The whole of the provisions of the law in this respect, look with a wise forecast, not only to the common course of affairs, when this duty may be an occasional task, but to a state of things occurring at times in all govern- ments and among all people, and not to be avoided in our most happy republic, when public peace and indi- vidual security and the supremacy of the laws, may require its frequent and responsible exercise. Itwas a prudent and comprehensive forethought which incorporated this provision into the law, and it can only be a narrow and contracted illiberality of judgment that would measure its advantages to the State by the expe- rience of any single year of comparative quietness and peace. But, during common years, its benefits are apparent. This and the former reports show how extensively the power to put this duty in operation has been used by the distinguished lawyers who have filled the Executive Chair, and whose high intellectual and professional cha- 22 ATTORNEY GENERAL'S REPORT. Jan racter might rather give their opinions the force of law, than induce them to seek a knowledge of the laws from another source. But if these accomplished statesmen and jurists have found an advantage in requiring the assist- ance of the law officer of the State, it is not easy to sup- pose that his duty can ever be an useless appendage. All public functionaries, of every degree, are, in our government of laws, bound by the force of their positive provisions, and by the forms, rules and manner which they prescribe. The efforts which have professedly been intended to simplify the law, have done much to complicate and involve it, and to give its technicalities as much importance as its principles. Hence it is, that a careful acquaintance and familiarity with usages and customs as well as the Statute Book, becomes necessary to the due administration of any department of govern- ment. When such men as have been the Governors of the Commonwealth, call for a legal opinion from the Attorney General, the call presupposes a case of doubt and difficulty, and dem^ands investigation and care. XII. The Statute of 1832 adds new duties to this office. By that Statute it is made the duty of the Attor- ney General " to be always in attendance on the call of the Legislature during their sessions, and to give his opinions upon all questions of law submitted to him by either branch of the Legislature, and his aid and advice in the arrangement and preparation of Legislative docu- ments and business, when thereto required by either branch of the Legislature." This is a new requisition, never before considered part of the Attorney General's duty. The history of the Com- monwealth is full of instances in which the Legislature have had occasion for the professional services of a lawyer. 1835. SENATE— No. 1. 23 Most generally they have applied to the person holding the office of Attorney General, but always with the un- derstanding that the duty required was extra-official, and entitled him to special compensation ; and large sums have, at various times, been drawn from the Treas- ury on this account. It is now in the furtherance of the general policy of the Statute, incorporated as a part of his ordinary public service. The Legislature of 1833 very freely put their power in operation, and " the Exposition of the rights of the Commonwealth to the ferries in Boston harbor," print- ed Document of the House, No. 43, the Lottery Com- mittee's Report, Doc. House, No. 44, and some others, testify to the character of the labor assigned to this officer. The Legislature of 1834 did not release him from the necessity of being in attendance, but did not require of him the discharge of any specific labor. And it is a remarkable fact, that his official annual report, required by law, and containing, as is now most respectfully sub- mitted, certain matters of practical expediency and of economical character, was never read in either house, nor referred to any Committee of either branch of the Legislature, although most important questions in con- nection with the office and duties of Attorney General were discussed and decided. But the value to the Commonwealth of the Statute provision now under consideration, is quite as well illus- trated by its neglect as its use. By one of those accidents, against which this provision of the law was intended to guard, the Legislature of 1834, no doubt most unintentionally, did in terms repeal out of office the whole government of the State Luna- 24 ATTORNEY GENERAL'S REPORT. Jan tic Hospital at Worcester, and left the Institution without any legal supervision ! The accident was remedied by new nominations and appointments, when the fact became known, — but whether the liability of certain towns to contribute to the expenses of the State in this behalf, which liability existed by the former law, ceased with its repeal, no reservation having been made of it, and whether it can now be revived or is lost, is a question yet to be settled at the expense of one or more law suits, and an uncer- tain delay. Nor is this the only case which affords an illustration of the subject. Most of the penal laws would be equally pertinent. But if the Legislature see fit to dispense with the services of the Attorney General, during their sessions, it is respectfully submitted that justice requires of them to dispense with his attendance ; or if they require his attendance, then to consider and remunerate him for the tax they impose on his time, and the restraint to which he is subjected, in the busiest part of the year, not the less irksome, if it is apparently useless, and be- coming the more tedious when positively without em- ployment. When a public officer, of whom so grave a duty may be exacted as that of giving advice and aid to the Le- gislative body of the Commonwealth, is liable every day to be put in requisition for the performance of it, he must keep himself constantly prepared for the proper demands of the service. He must make himself famil- iarly acquainted with the course of business in both branches, the measures proposed, the objections started, and the general course of debate. He must possess 1835. SENATE— No. 1. 25 and examine the printed documents of each House, and be ready to bring to the service of either, on a sudden call, whatever his industry, his talents, or his experi- ence may entitle them to expect, or enable him to com- mand. This has been the endeavor of the present officer, to the extent of his ability, and it is a poor remuneration for the compulsory and fatiguing duty of attendance, and the wearisomeness and study of preparation, to be told that the attendance was wholly profitless to the State. The time and the preparation, if otherwise be- stowed, would not have been useless to him ; he ven- tures humbly to suggest the possibility of their having been — if the Legislature had so pleased — in some small degree, profitable to the State. Indeed, so important and useful is it considered in some other States, as with the other branch last before-mentioned, to be of them- selves a sufficient employment for the officer who is exonerated, except under peculiar circumstances, from other public service. XIII. The Attorney General is to advise the local law- officers in all matters appertaining to their duties, when- ever he shall be applied to therefor. This also is a new duty, and all the gentlemen con- cerned have taken advantage of this provision of the law. The consultation and advice thus rendered, being in a good degree of a confidential character, have never been stated in detail in the Attorney General's report. Application is made only in cases of doubt and embarrassment, when a measure is to be taken, of which he who advises must assume the responsibility. No gentlemen could less need advice and instruction than the distinguished and able officers, whom the good 26 ATTORNEY GENERAL'S REPORT. Jan fortune of the State enables the people to retain in their service in each of the local Districts. But the adminis- tration of the criminal law, under this government, is no easy task. Intricate and complicated matters are con- stantly presenting themselves, which experience only can explain. This experience ought to be found in the head of the department. The places of the District Attornies, now so ably and honorably occupied, must in a short time be held by the junior members of the Bar. They cannot be retained by any gentleman for a considerable period of time — certainly not without a large addition to their present compensation. Lawyers find that public business drives away private practice, and that they must soon choose betw^een one class of clients or another. The office of a District Attorney is an admirable one to bring a young man into notice, but when opportunity has been given him to command public attention, it has for him fulfilled its purpose. His abilities are better rewarded by private suitors. The Commonwealth is a hard master. Its requisitions cannot be delayed or avoided. It cuts off its agents from one source of emolument by positive law, and establishes an implied proscription by that delicacy of feeling which it ought always to cherish. It takes a man too much from home. It occupies an undue por- tion of his time. It subjects him to expenses. It ad- mits no compromise with other engagements. It brings him into collision with regular clients, and with large classes of citizens, who come occasionally under the animadversion of the laws. It pays for the services it exacts at wholesale rates, and claims an immense dis- count from customary prices. The law of 1832, aware of these facts, looked to 1835. SENATE— No. 1. 27 those changes which might be expected, and provided for the time when inexperienced men would succeed the learned and accomplished individuals first appoint- ed, and when the advice and instructions which these eminent Lawyers find it convenient sometimes to solicit, must, of necessity, be multiplied in the noviciate of their probable successors. Two Statutes, passed at the last session of the Legis- ture. Chapters 155 and 199 of 1834, have increased materially the duties of the Attorney General. XIV. The argument urged in the last legislature for abolishing the office of Attorney General, was that of economy. The expense of his salary — it was said — might be saved. But this is obviously falacious. If any considerable part of his duties are necessary, they must be performed by somebody, and whoever performs them may expect to be paid. Can they be transferred to the local officers ? Their time is fully occupied. Tn a comparison of their duties, there is much difference in point of labor, but most of them are crowded with public business. To add more would be oppressive ; to add any without further com- pensation, would be unjust. Many of the duties which are discharged by the Attorney General, fall properly into no particular Dis- trict, and he, to whom they should be assigned, would be in fact Attorney General, in evasion of the Constitu- tion, under another name. Others are to be done at special courts, which are not arranged with the existing terms for ordinary business. A new appointment of the whole business of the State, in the Supreme and Com- mon Pleas Court, would have to be provided for, in subservience to this particular department. This is a 28 ATTORNEY GENERAL'S REPORT. Jan practical difficulty, which it is well to understand. In- deed, the office of Attorney General is made so inti- mately a part of the system established in 1832, that no change can be made in it without involving the neces- sity of a revision of the whole system. The mere aboli- tion of it, without other provisions of an essential and extensive character, would throw the whole proceedings under that system into inextricable confusion. In any event, if the office were abolished the salary must be divided among other persons, and in addition, either now or very soon, a new District must be carved out of the present ones, and a new District Attorney appointed within it. This matter of expense is worthy of further remark, because the expense to the Commonwealth for its attor- nies has not for fifty years been so small as established by the law of 1832, and never can he again. When the law of 1832 was enacted the salaries of all the prosecuting officers of the Commonwealth, then exist- ing, was ;^7200, but as the prescribed duties of the County Attornies did not embrace all the services which the public had need to require, special allowances were made to them, from time to time, and fees in addition to their annual compensation in some cases were by law taxed for them, not less, in the whole, than one thousand dollars per annum, — and liable to much enlargement and probable abuse.* Besides, these salaries were established in 1830, on an average of the criminal business of five former years. In some counties it had surprisingly increased, and a general sentiment prevailed that a considerable addition must be *See the printed Documents of the House of Representatives, No. 1, of May session, 1831. 1835. SENATE— No. 1. 29 made to the expense to secure competent service ; a sentiment remarkably verified by the fact that in the only county [Suftblk] left untouched by the law of 1832, an ad- dition of fifty per cent, to the then established salary, has since been made. A year could not have elapsed before at least one thousand dollars must have been added for the services of the County Atiornies, if the law of 1832 had not changed the whole system. At the date of this law the actual annual compensation of prosecuting officers, in- cluding salaries, fees and extras, amounted to a sum ex- ceeding nine thousand dollars, divided unequally among sixteen officers. After the law of 1832 was enacted the amount provided for all the prosecuting officers, was seven thousand dollars, divided among six individuals. A saving was thus made of two thousand dollars a year, be- sides cutting off an unmeasured demand for extra servi- ces, and securing a greater extent of duty of a kind which before the passing of this law, had always been admitted to be a separate charge to the state. In looking further at this subject of expense it is pro- per to state that a reasonable regard for their agents re- quires the Commonwealth always to have two counsel at every capital trial. In consequence of the pressure of other engagements on his colleagues, the Attorney Gen* eral has conducted several of these trials without assist- ance, but it is not reasonable to expect it to be done. The elaborate mode in which all capital trials are con- ducted, renders two counsel necessary, for the due admin- istration of public justice. The defendant is always al- lowed the assistance of two counsel. The funds of the State are put at his command to obtain testimony, and it seems to be a matter of pride with those who manage his defence to exert the most unwearied industry in 30 ATTORNEY GENERAL'S REPORT. Jan seeking for evidence, whenever it can have any possible bearing upon the cause at issue. From two to ten days are spent in one case; and the Court, feehngthe pressure of the time on their other avocations, have frequently been in session twelve and fourteen hours a day, leaving after their adjournment two or three hours labor to be performed by the public officer, in preparation for the next mornings work. Other trials are also of great length ; that of Sneliing occupied the Jury in the Su- preme Court, with only the intermission of the Sabbath, from the 27th of December 1833, to the 3d of January 1834, both days inclusive, and the case, from its com- mencement to its close, consumed twenty days of judicial time. When such cases occur, the local officers have a right to expect relief, and they have never asked it in vain. I know not what compensation the Legislature would think should reasonably be paid for conducting such trials as those of Locke, at Cambridge, or Hunt, at Plymouth, or Elliot or Mallory, at Springfield, or Wade or Glynn, at Dedham ; but if special counsel had been retained in these cases, by the State, the demand on the treasury could not in justice have been much less than the Attorney General's salary for the year ; and if the duty had been assigned to the District Attornies it would have entitled them, on every principle of equity, to an equal additional compensation. But it is a matter of great public policy that the State should pay its regular agents by stated salaries, and not by occasional grants, and should not leave open a door to claims for extra services, which may oftener be set- tled by favor than justice. To preserve this policy it is necessary to make the establishment strong enough to <io the public business, and to fix the compensation by 1835. SENATE— No. 1. 31 some scale of equality between the service and its re- ward. Neither is it a politic question to ask at how low rate the work can be done, but at what rate it becomes the character of the State to remunerate the workmen it employs. The seats of the Legislature would proba- bly be filled by patriotic citizens if no daily compensa- tion was allowed by law, but it is not on that account any breach of a wise economy to pay the members for their travel and attendance in doing the business of the State. It was not supposed that the duties of the Attorney General would be less under the nevv law than the old one, although they were in a considerable degree changed, but it was supposed he would have less occa- sion to travel, and be put to less expense on that account, and accordingly the salary of two thousand dollars, for- merly paid to that officer, was reduced to eighteen hun- dred dollars, under the new system of 1832. But this supposition proves to be erroneous. My predecessor, under an order of the Legislature of 1831, reported that the sum total of his travel for the five preceding years, had been 2758 miles, or an aver- age of 552 miles the year. The sum total of my travel from the date of my appointment in June, 1832, to No- vember 1, 1834, is 1913 miles, exceeding seven hundred miles per year. Neither does the change above alluded to, in the least diminish the labor formerly assigned to the office, but adds to its responsibility and weight. The mere routine of ordinary business at the Courts, the drawing of the common indictments, and the conducting the usual crim- inal trials, from which the Attorney General is now in a great measure relieved, is a comparatively insignificant 32 ATTORNEY GENERAL'S REPORT. Jan affair. The whole duty of supervision remains. It is this which is onerous. It is when new and great occa- sions present themselves, that the interests of the State are to be vindicated, and the labor of the public servants to be estimated. The hundred witnesses, and the thirty indictments, and the dozen trials, which make together the common business of a term, are far less weighty and perplexing than the preparation and prosecution of a single capital trial, or the argument of an intricate ques- tion of law. Neither, if the services be measured by time, will the case be changed. The duties, which the chief public prosecuting officer is charged with, can never be subor- dinate to any other avocations. They will occupy the principal share of his attention, and it is of very little moment, whether to the aggregate of his engagements there be added a few cases more or less, or the em- ployment of a few more days. XV. It is probably owing to considerations of the kind above presented, that the Judiciary Committee of the House of Representatives, the Judiciary Committee of the Senate, and a subsequent Special Committee of the Senate of the last year, reported against the proposition to abolish the office of Attorney General, and that it did not finally prevail. But after it was so decided, the law to which I have before adverted to, ch. 200 of 1834, was enacted, to which I am now most respectfully to ask your attention. This law was introduced into the Senate on the mo- tion of an individual member for leave to bring it in — was not reported by or referred to any preliminary com- mittee in the usual form of proceeding — was first pro- posed at the very heel of the session, and passed, as it is 1835. SENATE— No. 1. 33 believed, under an entire misapprehension of the subject, and when no opportunity was afforded to inquire, exam- ine or explain. It is of a more injurious effect than the reduction of the few hundred dollars, which it takes from the annual compensation of the Attorney General. In connection with the Statute, chap. 202, of the same year, it impairs the whole system of administering the criminal law, by reversing the proper relation of the of- ficers concerned in it. The two acts, one increasing the compensation of the County Attorney in Suffolk, the other diminishing that of the Attorney General, raise the subordinate officer above the principal. By affixing a greater compensation to the lower than the higher public servant, they derange that order which is indispensable for the harmonious and profitable economy of the sys- tem. I do not mean to question the claims of the Attorney in Suffolk to this unwonted liberality of the Legislature. I had long enough the honor to fill the station he occu- pies, to know and appreciate all its difficulties, under circumstances much more in conflict with personal con- venience, than any that have since occurred. This, and subsequent experience, has enabled me to know, that if the professional labor is in some respects more, it is in others much less than that of the other Attornies. It is all done at home. It involves no expense of travel. It is freed from a most oppressive and wearisome task, to which the other officers are subjected ; I mean the ex- amination of the justices' taxation of cost, and the per- plexity of revising and correcting them. This service, which falls elsewhere on the District Attornies, is, in Suffolk, committed to a Board of Ac- counts, to whom are paid fifteen dollars per day, while 5 34 ATTORNEY GENERAL'S REPORT. Jan engaged in the duty, or by actual employment of time, about five dollars an hour. The derangement thus made, by giving a higher com- pensation to the local officer than is paid to the head of the department, implies that the duties of the subordi- nate are either more important, more difficult, or a more serious claim on his time, than those which are assigned to the principal. All these suppositions are erroneous. But if any of them be true, they afford to that officer a claim to be relieved from his extraordinary duties — not to be elevated beyond his proper sphere in the system of which he is a part. If it had seemed right to the Legislature so to do, the mode of adjusting the business was very apparent. The informations against State Prison convicts — a branch of his present duty, which was represented as one reason for enlarging his salary* — are properly within the Attor- ney General's particular sphere, and might be assigned to him with great propriety. The jury trials in the Su- preme Court, which was another item in this account — so long as the anomaly of one judicial system in Suffolk, and another for the rest of the State, is suffered to re- main — might also be transferred to him, and the duties of the County Attorney, thus diminished, would fall consid- erably under those in some of the other Districts. XVI. In making these observations I discharge a public duty. I know from experience, and an intimate association with my immediate predecessors, that the place which I have the honor now to fill is full of labor and responsibility ; that the public is concerned in its pre- servation, in its efficiency and its character ; and that the * See Report of Com. of Claims. Doc. of Senate, No. 56 of 1834. 1836. SENATE— No. 1. 35 discharge of its appropriate duties entitles the officer per- forming them to an honorable compensation. The in- terest of the Commonwealth is concerned that he should be, what the constitution and the law intends he should be, not merely the nominal but the actual head of the department of criminal justice ; that if more duty can reasonably be performed by him, it should be taken from the subordinates, and assigned to him ; but that before any alteration is made in this particular it should be well ascertained whether as much is not now requir- ed of him as it is reasonable to demand, and whether the weight of those matters which are placed upon him does not make up for any deficiency in actual numbers, — whether there is not already ample occupation for his time in those avocations, which the condition of the country is constantly increasing, and to which in the criminal, civil and advisory relations of his office he is called to attend ? No man, who looks at the condition of society among us, believes this to be a moment in which any relaxa- tion can be permitted in the vigor of the laws, or the power to enforce them ; or that the prospect is a flat- tering one that the law officers are to lead a life of in- activity. The attention of men is to be called to the duty of resisting a wicked and furious spirit of intoler- ance, irreligion and disorder which is bidding defiance to the laws of the land, and the laws of God. The public mind is to be brought back to a recognition and to a support of those moral and political principles, on which our institutions depend, and without whose oper- ating influence they must speedily decay. It is necessary in this work to begin at home ; to preserve the established system of order and the an- 36 ATTORNEY GENERAL'S REPORT. Jan cient and time-honored means by which it is sustained. The supremacy of the laws is no idle sound that can be permitted to reverberate as the watchword of a par- ty. It is the war-cry that should gather the whole peo- ple in arms, not to rally round this or the other favorite object, but to protect the temple of national freedom from desecration and ruin. A firm yet humane administration of criminal juris- prudence is essential to the security of the Common- wealth ; and the institutions and the agents by which it has been conducted are more than ever indispensable to the public peace. I beg leave therefore in conclusion of this part of the report most respectfully to submit to the Legisla- ture that the Statutes aforementioned are inconsistent, contradictory, and injurious to the public service ; and that one of them — at the election of the Legislature ought to be repealed. On this subject I have no personal favor to solicit. — When from the compensation now provided are deducted the expenses of travel and attendance at distant Courts, and other incidental expenses for which no provision is made by law, together with such charges for Clerk hire as the new and peculiar avocations of the office require, its net annual emoluments will be found too insignifi- cant to be a matter of solicitude. But the duties, which the State requires, cannot be diminished, although the office and the officer may be changed. In the performance of these duties there are no powers or faculties of the human mind which are not called into exercise, and no place where the exer- 1835. SENATE— No. 1. 37 cise of them can be more useful to the great interests of the people. The Commonwealth is vastly less concerned in the result of a cause than in the manner in which it is con- ducted. An acquittal discharges an innocent man, and a conviction punishes a guilty one, and the objects of pubhc justice are in either case maintained. But trials in criminal courts are exciting scenes. They do much to promote the cause of good morals or to injure it ; to uphold and maintain elevated principles of social and political duty, an attachment to republican habits, and a high sense of individual responsibility, or to diminish the veneration which should be felt for the institutions of the country. There are practical and abiding lessons taught in these trials, which influence society. Impressions are made, which last for a life. Effects are produced, which could be in no way so well calculated for perpet- ual remembrance. But the service which the State demands it must profess to value. The individual whom it selects to perform this service, must be honored in his labor, or the task cannot he done. If the people countenance the idea that the service is a small one, they take from their agent the armour, which he should wear for their de- fence. So long as by positive statues the hfe of a fellow be- ing may in due course of judicial proceedings be for- feited to the law, so long the administration of that law must be a scene of deep and solemn responsibility. The humanity of the Massachusetts code presupposes the accused person innocent, and surrounds him with every necessary means of defence. The representative 38 ATTORNEY GENERAL'S REPORT. Jan of the people in like manner should not be destitute of their sustaining arm, in whose cause his exertions are required. It cannot be a humane or a wise or an economical policy that would exclude from the service of the State a large proportion of those citizens who, having the abili- ty to be useful to the public, are obliged to make that ability useful to themselves. XVII. The public interests in the hands of the At- torney General would be more readily promoted if he was entrusted with means for inquiry and examination. I allude chiefly to such civil suits as he is required to institute and sustain. Several matters, in the schedules, hereto annexed, are yet in suspense for want of the means to procure infor- mation, which in private cases a client obtains for his lawyer, before he is expected to give an opinion. The Commonwealth claims to be entitled to property of persons dying without legal heirs, and to real estate acquired by aliens ; and a statute directs the Attorney General on inquiry to determine the facts, and then proceed with process according to the forms of law ; but it supplies him with no means to obtain the proper evidence. Whether a small contingent fund could be safely ap- propriated to these and similar objects is submitted to the consideration of the Legislature. Such appropriations have repeatedly been made on special occasions, but the difficulty is that before an ap- propriation can be made, the opportunity for its profita- ble employment passes away. The efficiency of the public service and the wisest economy both concur in this, that the public agents should be furnished with all 1835. SENATE— No. 1. 39 necessary means and held to the strictest accountability for their use. XVIII. Various provisions in the criminal law require modification, and the whole body of improvements adopt- ed under the advice of the Commissioners in England, for the revision of the code, commend themselves to the notice of the Legislature, for their wisdom, utility, hu- manity and firmness. Besides these, our laws in rela- tion to riots, and the means of suppressing them, against duelling and sending a challenge to fight, and some pro- visions in the law of libel, and the license laws require re- vision. But I may be excused from multiplying sugges- tions of this sort until those, which I have before had the honor to present, shall have received the attention of the Legislature. XIX. Notwithstanding all the discouragements which arise on a review of the state of the criminal law, of the multiplicity and increase of crime, and of the inadequa- cy of the judicial department to control it, there will be cause of great gratulation if the heart of our society can be kept sound ; if the people will continue their ancient attachment to the social, civil and religious institutions of the country, and remain sensible to the truth of the admonition given by Lafayette to his countrymen, that PUBLIC ORDER SHOULD BE AS DEAR TO A H^ISE PEOPLE AS PUBLIC LIBERTY. JAMES T. AUSTIN, Attorney General 40 ATTORNEY GENERAL'S REPORT. Jan [A.] OFFICIAL DUTIES OF THE ' ATTORNEY GEl^ERAL, FROM NOVEMBER 1, 1833, TO NOVEMBER 1, 1834. IN COURT. SUFFOLK. Supreme Judicial Court — November Term, 1833. Commonwealth vs, William J. Snelling, Applt. Indict- ed for a libel. Motion for defendant to file bill of particulars. Argued. Ordered. Motions for plead- ing. Argued. Trial of issue bj jury. Verdict — Guilty. Case reserved on report of the Judge. Con- tinued. Commonwealth ^5. Sylvester Center, Applt. Indicted for illegally keeping gun powder. Trial of issue by jury. Verdict, guilty on one count in the indictment. Not guilty on one other count. Sentenced. Fine $100 and costs. Paid to the Sheriff. Commonwealth vs, James E. Hewes. On the lottery law. Same vs, same. 1835. SENATE— No. 1. 41 Commonwealth vs. Joseph Diamond. Same vs, same. Same vs. same. Same vs, same. Same vs, same. Five indictments for breaches of the lottery law. Defendant guilty. Fined ^20 in each case, and costs amounting to ^118 19. Commonwealth vs, Benjamin Eaton. Same vs, same. Same vs, same. Same vs, same. Same vs, same. Five indictments on the lottery laws. General de- murrer in each case. Continued. Commonwealth vs. Cutler Eames. Same vs, same. Indictment on lottery laws. Defaulted. Commonwealth vs. Elijah Williams. Same vs, same. Same vs. same. Indictments on lottery law. General demurrers. Con- tinued. MIDDLESEX. Supreme Judicial Court — December, 1833. Commonwealth vs. Aaron Locke. Indicted for murder. Trial. Verdict not guilty, by reason of insanity. Prisoner ordered to be confined in the State Lunatic Hospital, at Worcester. 42 ATTORNEY GENERAL'S REPORT. Jan NORFOLK. Supreme Judicial Court. Commonwealth appellant from the decree of the Judge of Probate, in the case of Fisher Kingsbury, Admin- istrator. Considered. Continued. SUFFOLK. Supreme Judicial Court — March Term, 1834. Commonwealth vs. Joseph Increase Sumner Peder. Murder. Examination before Grand Jury. No bill. Prisoner discharged. Commonwealth vs. George Harvey Barnes. Larceny of 315,000 from the Piscataqua Bank. Examined by Grand Jury. Bill ordered. Returned to Municipal Court. Commonwealth vs. Enoch Howes and al. Lottery law. Argued. Judgment for defendants. Commonwealth vs. Dyer Vespasian. A prisoner in the State Prison, under a judgment of Supreme Judicial Court, rendered in Middlesex, in October, 1821. Sentenced for life. Petitioner for writ of certiorari, and inspection of errors. Writ issued. Questions on the record argued. Motion for writ of habeas corpus, and discharge. Judgment reversed by the court. Prisoner discharged. 1835. SENATE— No. 1. 43 Commonwealth vs. Isaac J. Torrey. Same proceedings. Judgment reversed. Prisoner released. Commonwealth vs. Philip Haskins. Same proceedings. Judgment reversed. Prisoner released. Commonwealth vs. Simon Cook. Same proceedings. Judgment reversed. Prisoner released. Commonwealth sci. fac. vs. Franklin Dexter. Bail, &c. Demurrer overruled. Motion to be heard in chance- ry, granted to defendant. Argued. Judgment for penalty without reduction. Amount paid by defendant for penalty, - $500 00 Costs, 46 62 Paid by the Attorney General to the > _ ^p.aq 62 Treasurer of the Commonwealth, ) Commonwealth vs. William J. Snelling, for a libel on Judge Whitman. Argued on the case reserved — post- poned until the adjournment. Exceptions then over- ruled. Judgment on verdict. Sentence, three months' imprisonment in common jail, and to pay costs, taxed at ^90 11. Commonwealth vs. WilHam J. Snelling, for another libel. Argued on case reserved. Exceptions to verdict overruled. Judgment. Sentence, fifteen months' im- prisonment in common jail and to pay costs, taxed at ^106 13. Commonwealth ^5. Benjamin Eaton. Five indictments. Argued on the demurrer. Demurrers overruled. Sen- 44 ATTORNEY GENERAL'S REPORT. Jan tence, defendant to pay fine and costs, amounting to ^127 56. Commonwealth vs. Elijah Williams. Demurrers argued. Overruled. Continued for sentence. Commonwealth vs. Saunders. Same ^5. same. Same vs. Nathaniel R. Meder. Same vs. same. Sureties on re- cognizance. Judgment for Commonwealth. MIDDLESEX. Supreme Judicial Court — April Term, 1834. Commonwealth ^5. George Ramsdale, App'lt. Perjury. Trial of the same by jury. Verdict not guilty. Commonwealth vs. Tarrant P. Merriam, App'lt. Adul- tery. Judgment on verdict. Sentence, ten days sol- itary confinement and one year hard labor in the State Prison. PLYMOUTH. Supreme Judicial Court — Special Session — June, 1834. Commonwealth vs. John H. Hunt. Murder. Trial. Verdict, guilty of manslaughter. Sentence, ten days' solitary confinement, seven years' hard labor in the State Prison. Commonwealth vs. Robert Inglee and others. Riot. Motion for new trial — argued in part. Continued to next term in Bristol. 1835. SENATE— No. 1. 45 SUFFOLK. Police Court — City of Bostoii. Citation to attend the petition of Benjamin Eaton, im- prisoned for fine and costs on sentences of Supreme Court, for liberation. Examined — refused. MIDDESEX. Justices^ Court — \Sth to 27th August. Commonwealth vs. Henry Buck. Charged capitally with arson and burglary, with others, in the destruc- tion of the Ursuline Convent, on the night of 11th August. Admitted to testify as a witness for the Commonwealth. Committed. Commonwealth vs. George F. Roulstone. As above. Discharged. The preliminary examination of several of the persons subsequently indicted, was attended to and the several persons committed. Court of Common Pleas at Concord — Sept. Term, 1 834. Commonwealth vs. John R. Buzzell. Capitally indicted for arson and burglary. Same vs. same, second indictment. Commonwealth vs. Prescott P. Pond. Same vs. same. Commonwealth vs. Marvin Marcy, Jr. Same vs. same. 46 ATTORNEY GENERAL'S REPORT. Jan Commonwealth ^5. William Mason, Jr. Same vs. same. Commonwealth vs. Sargent Blaisdell. Commonwealth vs. Isaac Parker. Same vs. same. Commonwealth vs. Alvah Kelley. Same vs. same. Commonwealth vs. Wilder S. Thurston. Same vs. same. Commonwealth vs. Henry Buck. Indictments presented and certified to the next Su- preme Judicial Court in said County, in October. Commonwealth vs. Henry Buck. Indicted for second degree of above offences. Commonwealth vs. Nathaniel Budd, Jr. Commonwealth vs. Aaron Hadley. Commonwealth vs. Ephraim G. Holwell. Commonwealth vs. Thomas Dillon. Indicted as above. Defendants not arrested. Warrants in hands of the officers. Memo. — In the Supreme Court in October, such of the above named persons as were in custody, were ar- raigned, and after the disposal of several preliminary mo- tions, the 2d December was assigned for the commence- ment of the trials. 1835. SENATE— No. 1. 47 Commonwealth vs. Edward S. Spear. Accused as above. Examination by Grand Jury. No bill. Commonwealth vs. Jacob Chandler. As above. No bill. Commonwealth vs. Augustus Gernlin. As above. No bill. Commonwealth vs. William Young. As above. No bill. Commonwealth vs. James H. Conant. As above. No bill. Commonwealth vs. James Belknap. As above. No bill. Commonwealth vs. James Freeman. As above. No bill. Commonwealth vs. William D. Lewis. Accessory after the fact. No bill. Commonwealth vs. Caleb French. As above. No bill. Other persons were also complained of either as prin- cipals in the first degree, or as aiders and abetters or advisers, in the felonies above mentioned. But as the cases are yet unfinished, and may be subjected to the further action of the Grand Jury, before whom all the evidence has not yet been produced, a more particular detail cannot properly be made. Commonwealth vs. Sophia Emery, an absconding wit- ness. Process for contempt of court. Defendant re- cognized. 48 ATTORNEY GENERAL'S REPORT. Jan Commonwealth vs, Margaret Hull. Same. Defendant excused. HAMPDEN. Supreme Judicial Court — September Term, 1 834. Commonwealth vs. Moses Elliot. Murder. Trial. Verdict, not guilty. Commonwealth vs. Simeon Mallory. Burglary in first degree. Verdict, not guilty. WORCESTER. Supreme Judicial Court — October Term, 1 834. Commonwealth vs, David Humes. Larceny. Excep- tions of law, to evidence — from Common Pleas. Ar- gued. Continued for advisement of court. Commonwealth vs. Eph. Brigham. Forgery. Excep- tions from Common Pleas. Right of appeal. Ar- gued. Continued for advisement. Wilder S. Thurston. Petition for habeas corpus. Writ returned. Petitioner allowed bail. BRISTOL. Supreme Judicial Court — October 1834. Commonwealth vs. George B. Phillips. License Law. Exceptions from Common Pleas. Argued. Contin- ued for advisement. 1835. SENATE— No. I. 49 Commonwealth vs. Robert Inglee and others. Riot. Motion for new trial argued. Order to verify facts by affidavit. Continued. Commonwealth vs. George Wilkinson. Nuisance on public highway. Reserved on report of the judge. Argued. Exceptions overruled. Defendant ordered to recognize to appear at nisi prius and submit to sen- tence. SUFFOLK. Probate Court. Case of William H. Allen, a foreigner, supposed to have died intestate and without heirs. Claim of pretended creditor to have administration resisted on part of Commonwealth. Objection allowed. Claim of Da- nish Consul for administration interposed. Allowed. Admonition to pay assets to Commonwealth. Con- tinued. NORFOLK. Supreme Judicial Court. Commonwealth vs. John Wade. Capital Arson. Trial by Jury. Verdict, not Guilty. Commonwealth vs. William Glynn. Capital. Rape. Trial. Verdict, Not Guilty. Commonwealth vs. John Walton. Capital. Indict- ment for highway robbery. Preparation was made to try this cause, but the defendant escaped from custo- dy. Continued. 50 ATTORNEY GENERAL'S REPORT. Jan Commonwealth vs. Fisher Kingsbury, Administrator. Argued. Judgment in favor of Commonwealth. Case remitted to Judge of Probate of said county to make final decree. The Attorney General has attended both terms of the Supreme Court in Middlesex and Suffolk, and the terms holden by the full Court in Plymouth, Hampden, Wor- cester, Bristol and Norfolk, and the Court of Common Pleas at the September term in Concord. His official duties in Middlesex, prevented his attending in Berkshire and Hampshire. OFFICIAL DUTIES OF THE ATTORIVEY GENERAL OUT OF COURT. Report made on the order of the Honorable Senate, re- ferring certain books and manuscripts. BissePs Mortgage. Papers from the Treasury examin- ed, and suit ordered. Reply to Committee of the Honorable Council in regard to the mode in which the Treasurer's bond was exe- cuted. Examination of the case of Charles Haynes, demanded by the Governor of the State of New York, as a fugi- tive from justice. 1835. SENATE— No. 1. 61 Report made to the Governor, by his order, on the pro- visions of the existing law in regard to fugitives from justice. Order of the Governor to examine a Bill submitted to him by the Senate and House of Representatives, in- corporating certain proprietors of meadows in Cam- bridge, &c., and to report on the constitutionality of some of its provisions. Report made to his Excellen- cy in writing. Order of the Governor to consider and report on the validity of a military election and the constitutional power of the Governor to set it aside. Report made in writing. ^ Examination of the bond proposed to be given by the proprietors of the Warren Bridge, under the act of March, 1834. Questions proposed by the Trustees of the State Luna- tic Hospital on matters in which the Commonwealth was interested. Examined and answered in writing. Under the direction of the Statute of 1834, ch. 199, the Treasurer forwarded to the Attorney General a list of EIGHTY-ONE auctioucers, dehnquent in the payment of the auction tax. Written notice given to each, and the claims of the Commonwealth adjusted in each case without actual prosecution. It is not deemed necessary to name the supposed delinquents. Many of them were prevented by accident or mistake from a literal compliance with the provisions of the law. 52 ATTORNEY GENERAL'S REPORT. Jan Case of Champion Belden, a fugitive from justice. Ex- amined, and opinion in writing forwarded to the Gov- ernor. Order of the Governor to examine the militia law and prepare an opinion on certain legal questions arising in the practical operation of the act. Opinion given in writing. Requisition by the Overseers of the House of Correc- tion in Hampden County, for an opinion on certain questions in which they considered the pubhc justice was concerned and the Commonwealth was interested. Examined and opinion given in writing. Application from Newburyport in regard to the right of certain aggrieved citizens to the prerogative process of the Commonwealth, by the Attorney General ex- officio^ in case of an alleged interference with naviga- gable waters. Examined — process postponed. Application to certify the necessity of an Executive war- rant for Benjamin Wilbur, a fugitive from justice. Examined — declined. Examination of the requisition of the Governor of Maine, for the delivery of James Hall, a fugitive from justice. Examination of the case of Jacob Chandler, a fugitive from justice. Certificate for his arrest transmitted to the Governor of this Commonwealth. Examination of the case of John H. Tibbetts, an alleged fugitive from justice, for the purpose of obtaining an 1835. SENATE— No. 1. 53 Executive requisition upon the Governors of New Hampshire and Maine. Opinion given in writing. Questions proposed by the Directors of the Insane Hos- pital, in regard to certain forms of proceeding in which the Commonwealth is interested. Opinion given in writing. The general superintendence of the criminal department and the correspondence incident to it, has been at- tended to as occasion required. The title of the Commonwealth to about one hundred acres of land in Washington^ in the county of Berk- shire. The right of the Commonwealth by inquest of office, to be possessed of a large and valuable messuage in Bos- ton in the County of Suffolk. The claim of the Commonwealth to the property both real and personal, late of William Scott of Chilmark, in the County of Dukes. These cases have been par- tially the subject of examination, but further proceed- ings are suspended for reasons mentioned in the pre- ceding report. State of Rhode Island in equity vs. Commonwealth of Massachusetts. In Supreme Court of United States. For argument, January term, 1835. ( B.) ABSTRACT OF THE REPORT SAMUEL D PARKER, ESQ. Attorney for the Commonwealth within the County of Suffolk. Of his Official business to 31st Oct. 1834, inclusive, as made by him to the ATTORNEY GENERAL. 1835. SENATE— No. 1. 55 Cases to bo Disposed of. CAUSES OF COMPLAINT. Murder, Burglary, Forgery and Counterfeiting, Larceny, Accessory to Larceny, Perjury, Assault to commit murder or other felony Adultery, Lewdness and Lascivious Cohabitation, On the Gaming Law, On the Victuallers' License Law, On the Lottery Law, Assault and Battery, Information on State's Prison Convict Law, Riot, Fraud, Libel, Blasphemy, Nuisance, On the Gunpowder Law, Conspiracy, Duelling, Jail Breach, Common Drunkards, Police Misdemeanors, Total, Peace Warrants, Writs of Scire Facias, Total Cases on this Abstract, Deduct Cases pending at date of last Rep. Total NEW Cases since last Report, 312 1 2 155 '! 9 11 5 2 21 62 lo: 4i 22 7 3 31 2 1 5 3 2 5 427 73 29 529 53 476 llow dispospd of. 37 *69 42 27 *Of these Indictments, forty-two were laid on file because the Defendants had not been arrested. 1835. SENATE— No. 1. 57 Of the foregoing persons convicted, there were sentenced to confinement to hard labor in the STATE PRISON, 1 foi 1 U 3 (( 1 U 2 (C 2 (C 3 a 1 a 27 li 2 a 1 u 28 u 4* (C 76 Convicts. 20 years. 10 a 7 i( 6 u 5 a 4 t( 3 u n u 2 u IJ ;( 15 months. 1 year. 6 months. *These four were sentenced to the State Preson for six months from and after the expiration of previous sentences under which they were then hold- en in the State Prison. 68 ATTORNEY GENERAL'S REPORT. Jan (C.) ABSTRACT OF THE REPORT OF PLINY MERRICK, ESQ. Attorney for the Comm^onwealth for the Middle District, comprising the Counties of NORFOLK AND WORCESTER, Of his Oflacial business to 31st Oct. 1833, inclusive, as made by him to the ATTORNEY GENERAL. 1835. SENATE— No. 1 59 Cases to bo Disposed of. How disposed of. CAUSES OF COMPLAINT. O 0) II s 0-* OJ a. a. en w o i ^ 5 '5 1 i o o ■> 1 "3 2!; 0) 3 c o O Murder, 1 1 Rape, 1 1 1 Manslaughter, 1 1 Arson, 2 2 4 2 Burglary, 3 2 5 2 1 Robbery, 1 ] 1 Counterfeiting and Forgery, 2 7 1 10 4 5 Larceny, 3 41 10 54 2 38 4 Perjury, 3 3 1 1 1 Assault to commit murder or other felony, 1 2 3 1 Assault and Battery, 3 20 4 27 21 1 1 Adultery, 3 3 6 1 2 On the Victuallers' License Law, 3 30 10 43 17 2 14 On the Gaming Law, 2 1 3 1 1 Fraud, 2 2 2 Riot, 1 2 1 4 1 2 Nuisance, 5 14 11 30 3 3 1 12 Peddling, 1 2 1 4 1 2 Trespass and Malicious Mischief, 1 3 2 6 2 2 Barratry, 1 1 Jail Breach, 3 3 Pound Breach, ] 1 2 1 1 Total, ! 25 133 — 5(3 214 7 13 91 9 45 Writs of Scire Facias, Total Cases on this Abstract, 221 Deduct Cases pending at date of last Rep. 22 Total NEW Cases since last Report, 199 60 ATTORNEY GENERAL'S REPORT. Jan Of ttie foregoing persons convicted^ there were sentenced to confinement to hard labor in the STATE PRISON, for 20 years. 3 2 1 8 months. 18 Convicts. (D. ) ABSTRACT OF THE REPORT CHARLES A. DEWEY, ESQ. Attorney for the Commonwealth for the Western District, comprising the Counties of HAMPSHIRE, HAMPDEN, FRANKLIN, AND BERKSHIRE, Of his Official business to 31st Oct. ] 834, inclusive, as made by him to the ATTORNEY GENERAL. 1835. SENATE— No. 1. 63 Cases to bo Uisposod of. Ho V disposed of. CAUSES OF COMPLAINT. ■s li .11 -a a i < o 1 '5 cr < 1 '3 CT" o 2 3 a o Murder, 2 2 1 1 Arson, 1 1 Burglary, 2 1 3 1 Forgery, 1 4 5 3 1 1 Larceny, 1 44 5 50 3 40 1 1 Perjury, 1 1 Assault to commit murder or other felony. 1 2 3 1 Adultery, 1 1 2 1 Lewdness, 1 1 On the Gaming Law, 1 1 2 1 On the Victuallers' License Law, 1 5 12 18 3 1 2 On the Auction Law, 2 1 3 2 Assault and Battery, 1 12 6 19 1 9 3 Riot, 4 4 8 2 1 1 Fraud, 1 1 2 2 Libel, 2 2 Trespass and Malicious Mischief, 1 3 4 1 Nuisance, 11 15 12 38 1 14 1 10 Common Drunkards, 1 2 3 1 2 Peddling, 1 1 Disturbing Religious Worship, 1 3 1 2 7 1 2 2 Official Misdemeanor, 1 1 Maintenance, I 1 Pound Breach, 1 1 2 1 — Total, 21 96 3 59 179 12 78 4 26 Peace Warrants, ^ Writs of Scire Facias, j Total Cases on this Abstract, 190 Deduct Cases pending at date of last Rep. 21 Total NETV Cases since last Report, 169 1835. SENATE— No. 1. 65 Of the foregoing persons convicted, there were sentenced to confinement to hard labor in the STATE PRISON, 1 fc >r 14 years. 1 i 5 " 2 4 " 2 ' 3 '' 4 2 " 7 1 ^' 1 * 9 months. 18 Convicts. 68 ATTORNEY GENERAL'S REPORT. Jan (E.) ABSTRACT OF THE REPORT CHARLES H. WARREN, ESQ. Attorney for the Commonwealth for the Southern District, comprising the Counties of BRISTOL, PLYMOUTH, BARNSTABLE, DUKES COUNTY AND NANTUCKET, Of his Official business to 31st Oct. 1834, inclusive, as made by him to the ATTORNEY GENERAL. 1835. SENATE— No. 1. 67 Cases to be Disposed uf. How disposed of. CAUSES OF COMPLAINT. o V .11 a JO li < o 6 J2 B '3 cr o < a o o § O 2 3 Z 1 1 Manslaughter, 2 1 3 Burglary, 1 1 1 Assaults to murder or other felony. 2 1 3 1 1 Larceny, 1 24 14 39 23 2 Lewdness, 2 2 Arson in 2d degree. 1 1 1 Concealing Birth of Bastard Child, 1 1 Riot, 2 2 4 2 On Victuallers' License Law, 43 129 3 53 228 102 11 62 Assault and Battery, 15 1 6 22 1 13 2 Nuisance, 14 11 9 34 14 2 9 Contempt of Court, 9 9 9 Libel, 1 1 1 Conspiracy, 1 1 Malicious Trespass, 2 1 3 1 2 Official Misdemeanors, 2 2 1 1 On the Gaming Law, 2 62 199 5 1 7i 3 357 1 1 Total, 1 171 17 77 Writs of Scire Facias, 18 Total Cases on this Abstract, 375 Deduct Cases pending at date of last Rep. 62 Total NEW Cases since last Report, 313 68 ATTORNEY GENERAL'S REPORT. Jan Of the foregoing persons convicted, there were sentenced to confinement to hard labor in the STATE PRISON, 1 for 10 years. 1 <C 7 " 2 U 5 '' 2 u 4 " 2 cc 3 " 1 a 2 *' 7 u 1 " 1 <( 6 months 17 Convicts. ( F. ) ABSTRACT OF THE REPORT OF ASAHEL HUNTINGTON, ESQ. Attorney for the Commonwealth for the Northern District, comprising the Counties of ESSEX AND MIDDLESEX, Of his Official business to 31st Oct. 1834, inclusive, as made by him to the ATTORNEY GENERAL. 1835. SENATK- -No. 1. 71 y Cuii 5« 10 I.O hiajmiod of. llow diipuicii of. r~\' 1 1 CAUSES Ol<^ COMPLAINT. Pending at the date last Report. Bills. Appeals. 1 No Bills. Total Cases. 1 i i 1 ' Murder, 1 1 Manslaughter, ' 2 1 1 Arson, 1 2 1 4 2 1 Burglary, 1 1 2 • 1 Forgery and Counterfeiting, G 5 11 1 4 4 2 Larceny, 5 43 13 61 4 37 4 3 Perjury, 1 2 3 1 1 1 Assault to commit murder or other felony, 1 2 3 1 2 Adultery, 6 7 1 14 1 9 3 Lascivious Cohabitation and Lewdness, 3 1 1 5 3 1 On the Gaming Law, 6 6 5\ 1 On the Victuallers' License Law, 24 79 23 126 7 37^2 6 33 On the Lottery Law, 3 3 3 Assault and Battery, 5 15 8 28 3 7 4 6 Riot, 5 2 7 " 4 1 Fraud, 1 1 1 3 1 1 Libel, 4 4 Nuisance, 22 11 6 39 1 32 D 9 Official Misdemeanor, 2 1 3 6 J 2 I Embracery, 1 1 Trespass and Malicious Mischief, 4 3 7 1 3 Peddling, 3 3 2 1 Jail Breach, 1 1 ] Total, 77 1 193 i: 39 340 2 2l iis'es >69 Peace Warrants, j 2 Writs of Scire Facias, 6 Total Cases on this Abstract, ! 348 Deduct Cases pending at date of last Kep. 77 Total NEW Cases since last Report, 271 1 1835. SENATE— No. 1. 73 Of the foregoing persons convicted^ there were sentenced to confinement to hard labor in the STATE PRISON, 1 for Life. 1 U 20 years. 1 <c 10 " 3 ii 5 « 1 u 4 " 6 ii 3 " 6 u 2 " 10 ii 1 « 1 ii 9 months. 1 ii 6 « 30 Convicts. 74 ATTORNEY GENERAL'S REPORT. Jan (G.) GENERAI. ABSTRACT OF THE REPORTS OF THE ATTORNEY GENERAL AND THE COUNTY AND DISTRICT ATTORNIES, Intended to show the number of criminal complaints during the year ending October 31st, 1834; — the num- ber of cases examined by Grand Juries, in which they re- turned no bills ; the number of indictments found ; the manner in which the indictments were disposed of, and the nature of the crimes which were the subjects of judi- cial animadversion during the foregoing period. 1835. SENATE— No. 1. 76 Caio to bo nii|>aM.I uf. How Jiipoiod or. CAUSES or COMPLAINT. II SOS L £ s 1 c < K o 2 I 1 1 5 1 i is 3 a INIurder, 1 5 4 10 ~~1 Mnnslanghter, 4 2 6 3 1 Knpo, 2 2 2 Arson ill 1st niul ','J dogioo, 1 23 13 37 5 1 18 llurgiary in 1st nnd 2il tlogrec, 1 1 1 Robbery in 1st and 2d degree, 10 4 14 1 7 2 Concealing Ueatli of IJastard Child, 1 1 Larceny, 15 289 57 3.il 22 2G4 5 13 Accessory to Larceny, 1 1 1 Assault to commit murder or other felony, I 15 7 23 2 11 1 2 Forgery, 20 48 4 4 76 5 23 6 38 Perjury, 1 6 10 17 3 2 2 Fraud, 4 19 8 31 3 9 11 Adultery, 9 13 7 29 2 12 2 6 Lewdness and Lascivious Cohabitation, 2 (i 7 15 1 7 Trespass and Malicious Mischief, 1 10 1 8 20 1 2 4 5 Riot, 1 15 10 26 3 9 1 3 Conspiracy, 1 1 2 1 Assault and Battery, 10 116 2 31 159 13 89 7 19 Duelling, 5 5 3 2 Embracery, 1 1 Barratry, 1 1 Libel, 2 2 2 10 16 2 3 1 Nuisance, 56 77 40 173 7 57 26 43 reddling. 6 2 8 3 3 Pound Breach, 1 2 1 4 1 2 Contempt of Court, 9 9 9 Official Misdemeanors, 4 1 4 9 1 3 1 Disturbing Public Worship, 1 3 1 2 7 1 2 2 Information on State's Prison Convict Law, 14 14 4 10 On the Victuallers' License Law, 71 248 4 98 421 7 160 40 116 On the Auction Law, 2 1 3 2 On the Lottery Law, 24 17 41 1 28 12 On the Gaming Law, 8 9 3 20 ' 7 2 6 On the Gunpowder Law, 3 3 1 1 1 Blasphemy, 2 1 3 2 Maintenance, 1 1 Jail Breach, 4 3 7 3 1 Common Drunkards, 1 4 5 1 2 2 Police 3Iisdcmeanors, 1 4 5 1 Total, 238" 985 18 346 1587 ^ 7a3 100 m Peace Warrants, 77 Writs of Scire Facias, 69 Total Cases on this Abstract, 1733 Deduct Cases pending at date of last Rep. 238 Total NEW cases since last Report, 1495 1835. SENATE— No. 1. 77 (H.) GENERAL SUMMARY SENTENCES TO THE STATE PRISON. 1 3 1 3 4 1 8 8 16 1 40 2 1 59 2 3 6 for Life. 20 years. 14 ii 10 ii 7 (( 6 ii 5 ii 4 ii 3 ii 2J ii 2 ii n ii H ii 1 ii 9 months 8 ii 6 ii 159 Convicts.