SENATE.
.No. I.
THE
ATTORNEY GENERAL'S
ANNUAL REPORT.
1838.
/t<
eommonlnealti^ of M^^^^tW^tttn.
To the Honorable the Legislature :
I have the honor herewith to present to the Legislature
the Report, for the year ending on 31st October, 1837,
which the Attorney General is required to make, " of
all the official business done by him during the preceding
year, the suits and prosecutions to which he may have
so attended, the number of persons prosecuted, the
crimes for which, and the counties where had, the results
thereof, and the punishments awarded therefor."
The minute information required to be given, is best
presented by a diary ; and that form is adopted in the
present Report.
1836. November 1. Supreme Judicial Court for the
County of Norfolk, held at Dedham.
S. Leland, Judge of Probate, vs. F. A. Kingsbury and
others. Action of Debt, prosecuted for the benefit of
the Commonwealth on administration bond of the admin-
istrator of estate of J. B. Lewis.
Argued on Demurrer filed by Defendants.
Demurrer overruled. Prayer of Defendants to be
heard in Chancery. Continued.
Nov. 2. Commonwealth vs. George Walton, for High-
way Robbery. Jury empannelled.
4 ATTORNEY GENERAL'S REPORT. Jan
Nov. 3. Trial proceeded.
Nov. 4. Trial proceeded. In the afternoon, Jury re-
ported that they could not agree on a verdict. Case
continued.
Nov. 8. Attended the Supreme Judicial Court at
Salem. No case argued.
Nov. 11. Commonwealth vs. Daniel Spooner, charged
with Fraud. Examined the case according to the pro-
visions of the Revised Statutes, €h. 142, sec. 6, on an
application made to the Governor for a requisition to the
Governor of New York, to deliver the body of said
Spooner, as a fugitive from justice, for trial in this Com-
monwealth.
An abstract of the evidence, and all material circum-
stances, prepared and reported to the Governor, together
with " an opinion as to the expediency of making such
demand," as the statute requires.
Nov. 22. The Treasurer reported to the Attorney
General that the Lafayette Bank and the Franklin
Bank had not paid the semi-annual tax, and he required
such proceedings as were provided for by law.
Writ of Attachment issued vs. Lafayette Bank.
Same, vs. Franklin Bank.
The tax subsequently paid in both cases, and the writs
withdrawn. Defendants paying the Sheriff's fees only.
Nov. 24. Supreme Judicial Court for Middlesex.
1838. senate—No. i. 5
Attended to make preparation for the criminal trials there
pending.
Nov. 25. Supreme Judicial Court for Suffolk. Com-
monwealth vs. the Town of Cambridge, Affidavit for
continuance filed by Defendant.
Nov. 26. Supreme Judicial Court for Middlesex.
Commonwealth vs. Michael Whaling, for Murder. Affi-
davit for continuance filed bj prisoner's council. Argued.
Continuance ordered.
Dec. 3. Suffolk. Commonwealth vs. Charles Flan-
ders, for Embezzlement. Application to the Governor
for a requisition for him as a fugitive from justice. Case
examined. Abstract of evidence made, and opinion cer-
tified.
Dec. 7. Supreme Judicial Court, Middlesex. Com-
monwealth vs. Jesse Saunders, for Arson in 2d degree.
Trial commenced and proceeded.
Dec. 8. Trial occupied the Court for the day.
Dec. 9. Trial proceeded. Verdict, Guilty. Prisoner
sentenced to one day solitary confinement, and six years'
hard labor in the State's prison.
Dec. 16. Commonwealth vs. Adam J. Ankrim, for
Fraud. Charged as a fugitive from justice. Application
made to the Governor for an executive requisition to the
Governor of New York. Abstract of evidence, and opin-
ion made and certified. ,
Dec. 19. The question of continuance, raised on the
6 ATTORNEY GENERAL'S REPORT. Jan
Affidavit made for the Town of Cambridge, argued.
Continuance ordered.
1837. January 3. In the Supreme Court in Suffolk,
in the case of Commonwealth vs. Bail of Jones, indicted
for accepting a challenge to fight a duel, &c. Questions
discussed on Defendant's motion for a reduction of the
amount of the Recognizance forfeited to Commonwealth.
Memorandum. The Attorney General was absent from
the Commonwealth, from 4th January to 22d February, in
attendance on the Supreme Court of United States, at
Washington, relative to the case there pending by the
State of Rhode-Island vs. the Commonwealth of Massa-
chusetts.
March 13. Consultation with the District Attorney
of the Northern District, on certain complaints for Libels
in said District, and the judicial proceedings proper to be
had on said complaints.
March 17. Investigation of a claim against the Com-
monwealth, for a Reward offered in a proclamation of
Governor Davis, instituted by direction of a Committee of
the Honorable Council, and report made thereon.
March 18. Prepared the necessary papers for the
conveyance of a lot of land belonging to the Common-
wealth, and sold under a Resolve of 18th February last.
March 20. The Act of March 20, having directed
that the papers for the security of the money to be
advanced bv the Commonwealth for the Worcester and
Norwich Rail-road, should be prepared under the direc-
1838. SENATE— No. 1. 7
tion of the Attorney General, a consultation was had
with the Agent and Attornies of said Company, at their
request, to settle the mode of proceeding, and the forms
of the legal instruments.
March 22. Drafts of such instruments having been
prepared by the Attornies of the Rail-road, were submit-
ted to me for examination.
March 24. Received an order of His Excellency the
Governor, to examine a Bill entitled An Act to incorpo-
rate the Fish Wear Company, and ascertain whether the
location of a Wear in the waters of Manwicoit Point, as
proposed by the Bill, would infringe the private rights of
the Riparian proprietors.
March 26. Made a report in writing to the Governor
on the above subject.
March 27. Received an order of the two branches of
the Legislature to attend their Committee on Mercantile
affairs, in behalf of the Commonwealth, in relation to the
establishments of the limits of the harbor of Boston.
Same day attended the meeting of the committee.
March 28. Attended the committee.
March 29. Prepared a draft of a Bill to prevent en-
croachment in the harbor of Boston, and attended the
said committee to explain and enforce the same.
March 30. Prepared a re-draft of the Bill, with addi-
tions and alterations.
March 31. By direction of the Judiciary Committee,
8 ATTORNEY GENERAL'S REPORT. Jan
prepared for their consideration a bill concerning condi-
tional pardons.
March 31. Consultation with the County Attorney,
concerning the cases of Commonwealth vs. Edwards,
and Commonwealth vs. Drew.
March 31. Correspondence with the Mayor of the city
of Boston, for the purpose of better discharging the duty
assigned to me, in relation to the harbor of Boston, and
the matter pending before the Mercantile Committee.
April 3. Attended said committee with the draft of a
bill as finally approved by them,, for establishing the com-
missioners' line from South Boston Free Bridge to War-
ren Bridge.
April 4. Supreme Judicial Court, Suffolk. Common-
wealth vs. Joseph Drew, for Cheating by False Preten-
ses. Argued on questions of law reserved by the Judge
at nisi prius.
Afternoon. Attended the Committee on Mercantile
affairs.
April 5. Commonwealth vs. Joseph Drew. Argu-
ments continued and concluded.
April 5. Commonwealth vs. Leander Richards. Case
reserved from Middlesex. New trial ordered.
April 5. Correspondence with the Sheriff of Middle-
sex in answer to questions proposed by him concerning
the prisoners to be carried to Lowell, there being no jail
in that city.
1838. SENATE— No. 1. 9
April 6. Received a letter from the Treasurer of the
Commonwealth, stating his need of professional assist-
ance under the law for distributing the Surplus Revenue,
and requesting the advice of the Attorney General. In-
terview with the Treasurer according to his ^request.
April 7. Supreme Judicial Court, Suffolk. Common-
wealth vs. Jacob H. Edwards. Writ of Error to reverse
the judgment of the Municipal Court by which he was
sentenced to confinement to the State Prison for life.
Argued.
Commonwealth vs. Bail of Jones. Further argued on
the additional evidence produced by Defendants to sus-
tain their application for a reduction of the Bonds.
April 7. Consultation with the District Attorney of
the Northern District, in regard to the arrangement of the
capital cases in Middlesex, and the procuring of the wit-
nesses at Lowell, they being under recognizance to at-
tend at Concord.
April 8. Commonwealth vs. Edwards. Opinion of
the court pronounced, on the writ of Error. Habeas cor-
pus issued. Prisoner discharged.
April 8. Commonwealth vs. Bail of Jones. Opinion
pronounced. Judgment for Commonwealth for ^1,000
and costs. Notice to attend the taxation of costs. Costs
taxed.
April 8 Commonwealth vs. Abner Kneeland, under
advisement* of Court.
April 8. Prepared and delivered to the Treasurer such
2
10 ATTORNEY GENERAL'S REPORT. Jan
forms and other instructions for the distribution of the sur-
plus revenue, as conformed to the provisions of the several
laws of the Commonwealth in relation to this subject,
and as were requested by him on 6th inst.
April 8. Supreme Court at Lowell. Commonwealth
vs. Thomas Bullough. Rape. Prisoner arraigned.
Counsel assigned. Trial ordered to take place on 6th
June.
April 10. Attended the committee on Mercantile af-
fairs according to their notice.
April 12. Consultation with District Attorney of
Northern District, in relation to the cases of appeal in Su-
preme Court, assigned for 17th inst.
April 13. Consultation with the Treasurer of the
Commonwealth on the blank forms to be sent to the sev-
eral towns, concerning the distribution of the surplus rev-
enue.
April 19. Prepared, at the request of the District At-
torney of the Middle District, an opinion in writing on
questions proposed by him, relating to an investigation of
certain matters before the Grand Jury of Norfolk County.
April 26. Met the president of the Andover and Ha-
verhill Rail-road Corporation, to arrange the proceedings
and papers for the security to be given to the Common-
wealth for the sum of one hundred thousand dollars which
the Commonwealth is to advance said corporation under
the supervision of the Attorney General, according to the
provisions of the Statute of 17 April 1837.
1838. SENATE— No. 1. 11
April 26. Received from the Bail of Jones, through their
attorney, the amount of the judgment in favor of Com-
monwealth, as follows :
Allowed bv Court on the Recognizance, j^lOOO 00
Costs, " 239 m
^1239 b^
And on same day paid clerk of Supreme Ju-
dicial Court his part of the costs taxed in
said cases, . . . . . . 110 00
And the balance being, . . . .^1129 56
to the Treasurer of the Commonwealth.
May 1. Received from the Treasurer of the Com-
monwealth a list of sixty-one persons, indebted to the
Commonwealth on promissory notes, on which the inter-
est or principal, or both, were due and unpaid, to be
proceeded with according to the Revised Statutes, ch.
13, sec. 25.
These notes chiefly grew out of the sales of the State's
lands. To the several delinquents a letter was addressed,
requiring payment, or such arrangement as should make
the debt eventually secure. Adjustments with some of
the parties were made during the summer, to the satis-
faction of the Treasurer. Others remain in a condition
which may require further proceedings.
I beg leave most respectfully to add, that many of these
notes are for large sums of money. The parties to them
are scattered through the New England and other States.
In suits to be brought for the recovery of the money, the
Commonwealth has no privilege over private litigants,
and can enforce payment only by the ordinary process of
12 ATTORNEY GENERAL'S REPORT. Jan
a suit at law, subject to all the delay and expense inci-
dent to judicial proceedings.
When suits are to be commenced in other States, the
notes or other securities must be sent there ; but no au-
thority is given for this purpose. Other means are also
wanting for the just prosecution of these demands.
It will be observed that since the passing of the Re-
vised Statutes, — possibly from an earlier period, — sum-
mary process for the collection of State taxes no longer
exists, and that the collecting of so much of the revenue
as is derived from a tax on banks and sales at auction,
is, in case of delinquency, to be enforced by process of
law in the ordinary course of judicial proceedings.
Cases of this kind increas-e, and occasions there-
upon arise, in which great celerity of motion is requisite
for the public interest. In all cases in which the Com-
monwealth is interested, preparatory examination and the
means of obtaining proper testimony, with suitable facili-
ties for attending to the depositions or other evidence of
the opposite party, are as necessary as in private suits,
and provision is required for these purposes, if the Legis-
lature deem them expedient.
The extended relations of the Commonwealth as a pro-
prietor of lands and rail-road stocks, and as a claimant on
various corporations and private citizens, all liable to ac-
cidents by the fluctuation of business, and the responsi-
bility which has and may again devolve on the law officer
charged with the judicial processes that are necessary for
securing the public interest, make it my duty respectfully
to notice the matter in this report, and to ask for such
provisions by law as the Legislature in its wisdom may
judge to be proper.
1838. SENATE— No. 1. 13
May 2. Received notice from the Treasurer that the
tax due to the Commonwealth by the Nahant Bank, had
not been paid.
Same in regard to the Chelsea Bank.
May 3. Examined the Bond for ^800,000 made by
the Norwich and Worcester Rail-road Corporation to the
Commonwealth, and the Mortgage Deed of its road in-
come and franchise, and found they conformed to the
provisions of the Act in relation thereto.
May. 4. Consultation with the Land Agent as to the
condition and circumstances of the debtors to the Com-
monwealth on the roll of delinquents sent by the Treas-
urer on 1st inst.
May 5. Further arrangement with the Treasurer, on
the subject of the scrip to be issued for the Norwich
Rail-road Corporation.
May 8. Writ made against the Chelsea Bank for the
tax due the Commonwealth.
May 9. Examination, at the request of the Agent of
the Commonwealth for managing the aifliirs of Warren
Bridge, of sundry questions relating to the avenues, &c.
with Committee of Aldermen and the iSolicitor of the city
of Boston.
May 10. Examination, at the request of the Treasur-
er, of the proposed form of scrip for the Norwich and
Worcester Rail-road, at his office.
14 ATTORNEY GENERAL'S REPORT. Jan
May 12. Written opinion given to the Treasurer at
his request, on certain new questions arising out of the
negotiations with the Worcester and Norwich Rail-road.
Proceedings suspended.
May 15. Commonwealth vs. Charles Nelson and
Charles Halton, for Larceny, charged as fugitives from
justice. Examination of the case on application for an
Executive requisition to the Governor of New Hamp-
shire. Certificate, &c. made and reported to the Gover-
nor.
May 16. Examination at the office of the Treasurer,
by his request, of the Books of Records of the Stockhold-
ers and Directors of the Norwich and Worcester Rail-
road Corporation, preparatory to the delivery of certifi-
cates.
May. 17. In the case of the Andover and Haverhill
Rail-road Corporation, examined the Bond and several
Mortgages, prepared as security for the advance of the
credit of this Commonwealth, preparatory to the record-
ing of these instruments.
May 17. Arrangement by the Nahant Bank of Lynn,
for security for the tax of ^750 due the Commonwealth,
as proposed by their Directors in case the suit at law
could be suspended. Considered and agreed to.
May 25. The Bond for ^200,000, the Mortgage of
the personal property and the conveyance in fee and
mortgage of the Rail-road and franchise, and the tran-
script of the votes of the Stockholders of the Andover and
Haverhill Rail-road Corporation, according to instruc-
1838. SENATE— No. 1. 15
tions given on 17th ultimo, were presented for final ex-
amination, and a certificate was signed that these several
instruments were drawn in conformity to the Act of the
Legislature.
June 2. Received a written complaint of certain citi-
zens against the Corporation of Charles River Bridge, for
obstructing the passage over the same, which obstruction
thcj consider a nuisance in the public highway. After
an examination thereof, and an interview with the Presi-
dent and Agent of the Corporation it was deemed proper
to have the papers laid before the Grand Jury for their
advisement, and they were transmitted to the County
Attorney for that purpose.
June 5. Supreme Court Nisi Prius, at Dedham.
Sherman Leland, Judge, &c. vs. F. A. Kingsbury and
others, sued for the benefit of the Commonwealth.
Hearing in Chancery. Judgement for plaintiff, j^lllG 19
and costs.
June 6. Supreme Court, Special Term, Lowell.
Commonwealth vs. Michael Monahon and Michael Wha-
lan. Arson. Trial commenced.
June 7. Trial proceeded. Jury unable to agree.
Discharged, and a new trial ordered forthwith.
June 7. Commonwealth vs. Thomas Bullough, for
Rape. Trial commenced.
June 8. Trial proceeded. Verdict, Not Guilty.
June 8. Jury empannelled to try the case of Com-
monwealth vs. Monahon and Whalan.
16 ATTORNEY GENERAL'S REPORT. Jan
June 9. Trial proceeded. Verdict, Monahon, Guilty.
Whalan, Not Guilty.
June 10. Sentence of Death passed on Monahon.
June 12. Opinion given to the Adjutant General, at
his request, on the limitation of claims brous^ht to his de-
partment against the Commonwealth.
June 12. Received from the Treasurer, a list of
eighty-six Auctioneers reported delinquent on their
Bonds. Proceedings against them and their Bondsmen
to be had according to the Revised Statutes, ch. 13,
sec. 25.
Letters were sent to the persons named. Most of the
cases were settled in the course of the summer. Ar-
rangements partially made as to the residue. Suits
suspended until November. Generally the debt is
found to be small, and the delinquency to arise from neg-
ligence. In some cases it is otherwise.
June 14. Received the direction of the Governor to
examine the case of Stinson Sewall, on a charge of
fraud, and the papers accompanying an application for an
Executive requisition to the Governor of the State of
Maine, for the delivery of said Sewall, as a fugitive from
justice.
16. Opinion in writing forwarded to the Governor,
against the issuing of the requisition.
June 16. Settled the claim of the Commonwealth on
the Nahant Bank, by receiving five hundred dollars in
cash and security for the balance, and on the same day
1838. SENATE— No. 1. 17
paid the money to the Treasurer and deposited the secu-
rity with him. At a future day the whole sum was paid.
The claim of said Corporation for a deduction from the
amount due, not being admissible by the existing provi-
sions of law, can be considered only by the Legislature.
June 18. Went to Taunton to make arrangements for
the trial to be had before the Supreme Judicial Court.
June 19. Supreme Judicial Court for the County of
Bristol, Special Session. Commonwealth vs.. Michael
Drum, Rape. Jury empannelled, and cause proceeded.
June 20. Cause proceeded. Evidence and arguments
finished.
June 21. Chief Justice charged the Jury. At 9
o'clock, P. M., being unable to agree on a verdict, the
Jury were discharged, and a venire de novo ordered, re-
turnable on 25th July.
Commonwealth by Information vs. Samuel Wilbur,
prosecuted by order of the Legislature.
Claim for betterments made by tenant, . j^H^
From which, rents and profits were deducted, 72
K45
Judgement was rendered that on the payment of the
above sum, the Commonwealth should have possession of
the premises demanded.
June 22.* Order from the Governor to examine the
case of Ivory Jones, charged with fraud, and with having
fled from justice.
3
18 ATTORNEY GENERAL'S REPORT. Jan
June 23. After examination and on the production of
additional evidence, certified an opinion that a requisition
should issue to the Governor of New York.
June 28. Supreme Judicial Court, Suffolk. Com-
monwealth vs. Joseph Drew. Verdict set aside and new
trial ordered. It appearing that according to the opinion
of the Court, a new trial must result in the acquittal of
the prisoner, nol pros was entered, and the prisoner dis-
charged.
Julj 6. Commonwealth vs. John Crowell, alias John
Getchell, Forgery, Fugitive from Justice. Case exam-
ined.
Julj 7. Facts reported to the Governor, and opinion
given in favor of a requisition to the Governor of New
Hampshire.
July 8. Question between one of the Banks in the
City of Boston and the Treasurer as to the sum of
j^l 7,000, part of the Surplus fund — on which the advice of
the Attorney General in behalf of the Commonwealth
was desired. Adjusted to the satisfaction of the parties.
July 8. Received from the Governor an order to pre-
pare and deliver to him an opinion on certain questions
proposed by the direction of the Executive Council con-
cerning the operation of the several laws of this Com-
monwealth and of the United States for the distribution
of the Surplus Revenue.
July 11. Opinion having been prepared in writing
was delivered to His Excellency.
1838. SENATE— No. 1. 19
July 13. Question on the construction of a clause in
the law for issuing the State Stock for the Western Rail-
road, proposed by the Treasurer — considered — opinion
given to him.
July 17. Application of Ivory Jones, with documents
for the countermand of the Executive Requisition issued
to the Governor of New York — made to Governor Eve-
rett and by him transmitted to the Attorney General for
examination and Report.
July 18. Witnesses sent for and examined, and report
made.
July 19. Further Report made to the Govenor on the
case above mentioned.
July 24. Went to Taunton.
July 25. Supreme Judicial Court. Bristol County.
Commonwealth vs. Michael Drum. Rape. New trial
proceeded. Verdict — Guilty of a part of the offence
charged — not guilty of the residue. Sentence, one day
solitary confinement and two years hard labor in the
House of Correction.
August 1. Under a special resolve of the Legislature
and in pursuance of notification from the chairman of a
Joint Committee of the two Houses, attended a meeting
of said Committee in the Senate Chamber.
August 2. Again met the Committee. Witnesses
summoned and examined. Argument of certain ques-
tions stated in said Resolve, submitted to the Committee.
20 ATTORNEY GENERAL'S REPORT. Jan
August 26. Examination of a Bond and Mortgage
made by the Eastern Rail-road Corporation for one mil-
lion of dollars as security for money to be advanced by
this Commonwealth. Certified the same to be approved,
Sept. 5. Received an order from the Governor to ex-
amine and report on the case of Henry Greene, Jr., de-
manded as a fugitive from justice by the Executive of
the State of Maine.
Sept. 6. Reported in writing that said Greene was
not liable to arrest for the causes set forth in said demand.
Sept. 9. Received the amount of the Execution ob-
tained in favor of the Commonwealth vs. Fisher A. Kings-
bury and others.
Sept. 13. Went to Springfield.
Sept. 14. Supreme Judicial Court. Hampden — held
by adjournment for the trial of the Commonwealth vs.
Charles Whitford for Murder. Case opened and wit-
nesses examined.
Sept. 15. Case proceeded.
Sept. 16. Jury not being able to agree on a Verdict
were discharged and trial ordered again on 19th Decem-
ber.
Sept. 20. Commonwealth vs. Charles Underwood
charged with fraud and being a fugitive from justice.
Examined. Opinion in writing certified to the Governor.
1838. SENATE— No. 1. 21
Sept. 21. Commonwealth vs. William Slack and al.
for delivering a dead body for dissection without license.
Questions reserved at the trial. Argument in writing
prepared and sent to the Supreme Court at Northampton.
Sept. 27. At the request of the Commonwealth's Agent
for superintending Warren Bridge, a consultation was
again had with the City Solicitor and Aldermen of Boston,
on the claim to have the money repaid to the Common-
wealth, which had been expended by said Agent in
the repairs of the Highway adjacent to said Bridge. No
adjustment is yet made satisfactory to the Agent, and the
subject opens several questions which may need the in-
terposition of the Legislature.
Sept. 29. Attended at the Clerk's Office of the Su-
preme Court, Dedham, for the adjustment of costs in the
case of Leland Judge, &c., prosecuted for the Common-
wealth vs. Kingsbury.
Sept. 30. Paid to the Treasurer of the Common-
wealth the sum of ^1126 47, which, with ^16 50 paid
to the Clerk, and $2 25 paid to the Sheriff, is in full of
the money received for debt and all costs in the above case.
Oct. 3. Received an order from the Governor and
Council to prepare an opinion in writing on certain mili-
tary questions by them proposed.
Oct. 4. Opinion delivered in writing.
Oct. 4. * Received an order from the Governor to re-
port on the case of Henry Worden, demanded as a fugi-
tive from justice by the Governor of New York.
22 ATTORNEY GENERAL'S REPORT. Jan
Oct. 5. Case examined and opinion reported.
Oct. 5. Went to Worcester.
Oct. 6. Supreme Judicial Court for the County of
Worcester, Commonwealth vs. Luther Spring. License
Law. Questions of law on Bill of Exceptions. Argued.
Continued.
Commonwealth vs. George S. Bradford. Manslaugh-
ter. Law on report of the Judge. Questions withdrawn.
Judgment for Commonwealth. Sentence suspended till
adjournment.
Oct. 13. Communication from the Attorney General
of Rhode Island, with papers concerning the arrest of a
person charged with Larceny in this State. Answered —
and papers transmitted to District Attorney for the South-
ern District-
Oct. 14. Notice from the Treasurer that the Lafay-
ette Bank had not paid the Tax due the Commonwealth.
Same as to Franklin Bank. Letters sent to the Presi-
dents.
Oct. 16. Supreme Court, Boston, out of term, full
bench. Commonwealth vs. William Graves on charge of
Murder, petitioner for Bail, Habeas Corpus issued. Bail
in the sum of ^10,000 ordered, and Commissioner appoint-
ed to take the same.
Oct. 17. Supreme Judicial Court, Middlesex. Com-
monwealth vs. Samuel S. Maynard. Murder. Prisoner
1838. SENATE— No. 1. 23
arraigned. Counsel assigned. First Tuesday of De-
cember appointed for trial.
Oct. 18. Boston. Met the Committee on Warren
and Charles River Bridges according to the order of the
Legislature.
Oct. 19. Attended the meeting of the Committees.
Oct. 20. Confidential communication from the Gov-
ernor, and opinion thereon in writing delivered by his or-
der.
Oct. 21. Order from the Governor to examine certain
papers concerning one of the Banks in the Common-
wealth, and report to him on questions thereby presented.
Oct. 24. Answer in writing delivered to his Excel-
lency.
Oct. 25. Commonwealth vs. Calvin Knowlton for
fraud, on application for an Executive requisition to the
Governor of Alabama. Examined, and report made on
the questions of fact and law therein presented.
Oct. 30. Supreme Judicial Court, Norfolk. Com-
monwealth vs. S. Richards on the License Law. Excep-
tions to the charge of the Judge in Common pleas. Ex-
ceptions withdrawn and judgment for the Commonwealth.
Commonwealth vs. George Walton. Highway Rob-
bery. Abat*ed by death of the Defendant.
It will be perceived in the foregoing Report, that the
24 ATTORNEY GENERAL'S REPORT. Jan
extended relations of the Commonwealth place several of
its principal officers in a situation to need legal advice,
and that the public interest requires that they should be
able to command it. The call has, from the exigency of
the case, been made on the Attorney General, and has
been, on all occasions, immediately answered. But his
official obligations are limited to the requisitions of the
Supreme Executive and the Legislature, and further pro-
vision will be necessary for the continuance of this service
if the Legislature shall consider that it ought to be ren-
dered.
Another subject in this connection may be deemed
worthy of attention.
Large sums of money have, from time to time, been
given or devised to corporations in this State, in trust for
specific purposes of education or charity. It has been
suggested in some cases by persons having an interest in
those funds, that some of them are not employed at all,
and others misappropriated by mistake or design, and it
is believed that in such cases the Commonwealth is the
proper party to interfere in its visitorial character as sove-
reign, and that the proper process is by Information to
be filed by the Attorney General in the Supreme Judicial
Court.
Intimations have been given to me that this process
is required.
If the subject is important and extensive, as has
been supposed, it will require the authority of the Legis-
lature to determine, under what circumstances inquiry
should be made. No such Information can be filed until
proper means have been taken to ascertain the facts, and
none are at present provided by which they can be veri-
fied.
1838. SENATE— No. 1. 25
Under the terms of the Statute by which the Attorney
General is directed to include in his report "such obser-
vations and statements as in his opinion the criminal
jurisprudence and the proper and economical administra-
tion of the criminal law of the Commonwealth shall war-
rant and require," I deem it to be my duty very respect-
fully to advert to two other subjects.
The one is the necessity of a better separation of the
criminal from the civil docket, and an assignment of a
distinct time for the trial of criminal causes in courts uni-
ting civil and criminal jurisdiction, with such arrange-
ment as may prevent the session of one Court from inter-
fering with another.
The travel and attendance of Witnesses in criminal
prosecutions is a very serious expense to the Common-
wealth and is annually increasing. It is aggravated by
delays arising from the pendency of civil causes at the
same term, and by the adjournments which are occasion-
ed by the time for the session of one Court arriving be-
fore some other has terminated its business.
The advantage of the special session of the Common
Pleas in Worcester county, for the trial of criminal mat-
ters, suggests the mode of providing for much economy
of expense to the Commonwealth.
The other regards the law for suppressing riots.
No circumstances can occur in this Commonwealth,
which will excuse or extenuate a resort to violence and
outrage, or justify the violation of the public peace by
assemblies of disorderly persons. It is undoubtedly the
intention of the Legislature, that all such assemblies should
be promptly and effectively suppressed. By the statute
of 1835, ch. 140, abundant means were provided for this
purpose — important duties were assigned to certain public
4
26 ATTORNEY GENERAL'S REPORT. Jan
officers, and authority given to them which might extend
even to the taking of life.
In the Revised Statutes, ch. 129, the former provisions
are in some respects changed ; and doubts have arisen as
to the mode of proceeding under the phraseology therein
adopted.
On a matter of this importance no doubt should be
permitted to exist. The preservation of public peace
depends on the clear perception of the duty of the magis-
trate, his readiness to meet it, and the support which is
given to him by the explicit terms of the law.
The Statute under which the foregoing report is pre-
pared, requires the District Attornies to make an annual
report to the Attorney General in the same minute man-
ner, and that he should make an abstract of such reports,
and include it in his report to the Legislature.
No particular form for such abstract is specified in the
statute, and it is somewhat difficult to adopt any form for
an abstract, which shall present at one view the state of
crime throughout the Commonwealth, and the services of
the prosecuting officers of the government.
I have hitherto presented these abstracts in a tabular
form, because that form renders a comparison easy with
the "STATISTICS OF crime" published in a similar manner
abroad, for which comparison these abstracts in this.
Commonwealth have been earnestly sought by those who
are engaged in endeavors to ameliorate the condition of j
mankind. B
The progress of criminal jurisprudence in this country
is a subject of great interest to our fellow men where
a severer code of criminal law is in force, and although
the tables published here, which are all that the law per-
1838. SENATE— No. 1. 27
mits, are not so full as might be desirable, they are among
the best documents that can be framed for this general object.
The services of the prosecuting officers cannot appear
bj them in a proper light, because their services are not
to be measured by the number of cases. But as their
full reports are at hand for the inspection of the Legisla-
ture or its committees, it has been supposed that no in-
justice could arise. If, however, any other form is more
acceptable, the direction of the Legislature will be most
respectfully observed.
The Abstracts for the year are hereunto annexed as a
part of this report, and the whole respectfully submitted by
JAMES T. AUSTIN, Attorney General
January 3, 1838.
28 ATTORNEY GENERAL'S REPORT. Jan
ABSTRACT OF THE REPORT
PLINY MERRICK, ESQ.
Attorney for the Commonwealth for the Middle District,
comprising the Counties of
NORFOLK AND WORCESTER,
Of his Oli'icial Business to 31st Oct. 1837, inclusive, as made by him to the
ATTORNEY GENERAL.
1838.
SENATE— No. 1.
29
CAUSES OF COMPLAINT.
Malicious Mischief,
Assault and Battery,
Manslaughter,
Nuisance,
On the License Law,
Conspiracy,
Official Misdemeanor,
Felonious Assault,
Larceny,
Selling Unproved Fire Arms
Cruelty to Animals,
Disobeying Subpoena,
Forgery and Counterfeiting,
Lascivious Cohabitation, &c..
Perjury,
Blasphemy,
Common Drunkenness,
Escape fi'om H. of Correction,
Cheating,
Peddling, *
Selling Unwholesome Pro-
visions,
Cases to be disposed of.
■3 «
2
11
22
77
1
1
1
27
1
1
2
6
o
3
1
1
2
o3 ^
Oh' O
12
224
3
20
1
42
108
1
1
1
39
1
1
2
10
6
5
J
2
1
4
3
How disposed of.
2
11
1
13
73
REMARKS.
*One case of a
complaint to
miigistrate —
quashed on
motion.
*Complaint
quashed on mo-
tion.
Carried over.
30 ATTORNEY GENERAL'S REPORT. Jan
Cases to be disposed of.
How disposed of.
CAUSES OF COMPLAINT.
o
1
.11.
03 jg
» CO
&, o
< Z
o
t
<
a
.2
o
■>
a
o
O
3
<u
m
O
—
0)
s
a
o
O
REMARKS.
Incest,
Illegal Voting,
Distuibing Public Worship,
~6
1
2
J!
75
262
n
273
23
250
8
129
2
48
9
39
Total,
Writs of Scire Facias,
Total Cases on this Abstract,
Deduct Cases pending at the
date of last Report,
Total NEW Cases since last
Report,
23
158
Cases wherein
defend'ts have
absconded, and
probably will
not be arrested.
1838. SENATE— No. 1. 31
Of the foregoing persons convicted, there were sentenced
to hard labor in the State Prison :
s
for
3 jears.
2
(1
2 "
3
u
1 year.
8 persons sentenced to
the State Prison.
32 ATTORNEY GENERAL'S REPORT. Jan
ABSTRACT OP THE REPORT
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. 1837, inclusive, as made by him to the
ATTORNEY GENERAL.
1838.
SENATE— No. 1.
SS
Cases to be disposed of.
CAUSES OF CO-^^PLAIXT.
Murder,
Robbery,
Arson, 1st degree,
« 2d "
Burglary, 2d degree,
Larceny,
Forgery and Counterfeiting,
Felonious Assault,
Rape,
Conspiracy,
Fraud,
Perjury,
Adultery,
Lewdness and Lascivious Co-
habitation,
Libel,
Trespass and Malicious Mis-
chief,
Nuisance,
Assault and Battery,
On the Gambling Law,
Rescue,
Sunday Law,
•3 ^
1
1
1
2
1
1
2
14
3
1
^ JO
S' o
How disposed of
1
1
1
1
5
52
15
3
1
J
8
2
7
7
1
10
47
4 22
7
2
5
1
1
5
32
7
1
Z O
REMARKS.
1
1
1
2
3
1
1 2
19
03 ^ JS
fc-a o
S~ o
& 5 o
J = s
c - ^
hJ § .5 .J
ll ^'^
n3 O g^
C I, c m
g = SJ
^ V = «J
--^ lT to .,
03 = •= «
C - o S
to _rt ^ sS
*-.a '--^
l| = §
.S ^ =*I3
«^ - 03 O
o "^ ■i; o
•^ SI w
-2.22 £ c
Sic O 01 "5
!«■" = ^
Carried over.
34
ATTORNEY GENERAL'S REPORT. Jan
Cases to be disposed of. How disposed of.
?
O
i
CAUSES OF COMPLAINT.
!
Bills.
1 Appeals.
1 ]\o bills.
Total.
1 Acquittals.
Convictions.
1 Nolle Prosequi.
Continued.
REMARKS.
Victualler's License Law,
20
54 14
12 100
1 45
B 39
Illegal Voting,
6
6 i
5
1
Riot,
7
2 9
4
3
Escape,
5
5 j
1
5
Drunkenness,
1
1 !
1
Extortion,
1
1
I
Peddling,
2
2
1
1
Selling Unwholesome Pro-
visions,
I
1 2
1
Cruelty to Animals,
1
1 2
1
Contempt,
8
8
8
Total,
54
213 17
51 335
13 162
9 100
Actions of Debt on Recogni-
zance,
2
Total Cases on this Abstract
.337
Deduct Cases pending at the
date of last Report,
54
Total NEW Cases since las
t
Report,
1
1
283
I
1838.
SENATE— No. 1.
35
Of the foregoing persons convicted^ there were sentenced
to confinement to hard labor in the State Prison :
No. of Individuals.
Term of Sentence.
No. of Sentences.
1
for
12
years.
2
3
7
3
2
5
2
2
4
4
2
3
3
14
2
17
13
1
13
37^
individuals
sentences
544
sentenced.
passed.
s
36 ATTORNEY GENERAL'S REPORT. Jan
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 Ijis Oindal Business to the 31st October, 1837, as made by him to the
ATTORNEY GENERAL.
1838.
SENATE— No. 1.
37
Cases to be
disposed of.
How disposed of.
CAUSES OF COiMPLAINT.
to
O
3
1 Appeals.
1 No Bills.
o
OS
1
a*
w
<1
m
a
.2
u
'>
a
o
O
3
cr
m
O
in
Z
t3
S
.S
s
o
REMARKS.
Rape,
1
1
1
*1
'Convicted of
;in assault.
Manslaughter,
1
1
1
Burglary,
1
1
1
■
Assault to Murder, or other
felony.
3
2
5
3
Forgery,
3
1
4
3
Larceny,
22
7
29
22
Arson,
3
3
Adultery,
6
3
9
5
I
Conspiracy,
1
1
1
Malicious Mischief,
1
1
Riot,
2
1
3
2
Nuisance,
20
32
15
67
33
2
17
Pound Breach,
1
1
1
Assault and Battery,
6
7
3
16
4
7
2
Law of the Road,
1
1
2
1
1
On License Law,
18
82
9
24
133
63
4
42
On Gaming Law,
2
2
On Auction Law,
1
1
1
Selling Unwholesome Pro-
visions, *
1
1
1
Fornication,
16
3
19
16
Cruelty to Animals,
1
1
1
Carried over.
38
ATTORNEY GENERAL'S REPORT. Jan
Cases to be disposed of.
How disposed of.
CAUSES OF COMPLAINT.
O
-a
Eaosn
Pi
in
1
1
O
<
an
a
.2
'>
a
o
O
'3
2
Oh
1
.S
o
O
REMARKS.
Common Drunkards,
3
3i
2
1
Embezzling,
I
1
Open and Gross Lewdness,
2
2
Extortion,
1
Libel,
1
■
Profane Cursing and Swear-
ing,
1
Breach of Sabbath,
1
Official Misdemeanor,
1
/
Unlawfully erecting a Weir,
1
1
Total,
41
183
21
68
313
H
\(j2
13
6Q
* Cases in
which an ap-
Writs of Scire Facias,
21
peal was made
from Justices
of the Peace.
Attachments,
11
Total Cases on this Abstract,
345
Deduct Cases pending at the
date of last Report,
41
Total NEW Cases since last
Report,
304
1838.
SENATE— No. 1.
39
Of the foregoing persons convicted, there were sentenced
to conjinement to hard labor in the State Prison :
2
for
6 years
1
5 "
1
4 "
2
3 "
4
2 ''
.T
1 "
15
40 ATTORNEY GENERAL'S REPORT. Jan
ABSTRACT OF THE REPORT
SAMUEL D. PARKER, ESQ.
Attorney for the Commonwealth ivithin the County of
SUFFOLK,
Of his Official Business to 31st Oct. 1837, inclusive, as^ made by him to the
ATTORNEY GENERAL.
1338.
SENATE— No. 1
41
Cases to be disposed of.
How disposed of.
CAUSES OF COMPLAINT.
o
2
SI
1
<:
o
i
o
H
1
"a
"3
I
a
.2
">
s
o
O
■
1
p
_«
O
O
REMARKS.
Manslaughter,
Arson,
3
3
2
1
Riot,
7
7
2
5
■
Forgery and Counterfeiting,
3
10
4
17
1
7
*5
*3 kid on file.
Lai'ceny,
2
108
18
128
14
92
1
*;5
-»2 laid on file.
Accessory to do.
10
2
]2
3
4
3
Peijury,
3
3
Assault to commit Felony,
1
1
Adultery,
1
6
2
9
5
*2
*laid on file.
Gaming,
1
2
3
1
On the Victuallers' License
Law,
3
6
9
]
7
*1
*laid on file.
Assault and Battery,
2
40
1
5
48
5
S3
»5
*2 laid on file.
Informations on the State's
Prison Convict Law,
12
12
1
11
Fraud,
2
29
5
36
5
18
1
*7
*2 laid on fiie.
Libel,
1
3
4
1
Nuisance,
4
22
3
29
14
5
*7
*6 laid on file.
Jail Breach,
3
3
3
Official Misdemeanor,
3
3
1
1
1
Pound Breach)
1
1
1
Drunkenness,
1
1
]
Police Offences,
1
1
1
Car/ltd over.
42
ATTORNEY GENERAL'S REPORT. Jan
Cases to be disposed of.
How disposed of.
CAUSES OF COMPLAINT.
O
JO i2
a,
G. O
3
e5
c
o
1
s
c
0)
o
Ph
"o
is
-6
<o
s
a
a
o
O
REMARKS.
Bribery,
Compounding Felony,
Violation of Lord's Day,
2
1
1
2
1
1
Total,
Actions of Debt on Recog-
nizances,
Total Cases on this Abstract,
17
25G
10
5<>
335
38
373
37
204
12
*30
*17 laidoafije.
1838.
SENATE—No. 1.
43
Of the foregoing persons convicted, there were sentenced
to confinement to hard labor in the State Prison :
>. of Individuals.
Term of Sentence.
No. of Sentences
7
Ij
ear.
8
1
H
years
.
1
13
2
16
8
3
8
1
4
1
4
5
6
1
6
1
6
7
'i
8
3
8
ti
3
44 j
ind
ividuals
sentences
>5I
i
sen
tenced.
passed.
>
>
Mr. Parker reports, that, in the absence of the Attor-
ney General, he gave written opinions in two cases of
Executive requisitions for fugitives from justice, and one
application for a pardon.*
* A Statement of the Business of the Municipal Court in the city of Boston, for the year
ending on the 30th December, 1837, embracing matters not within the report required by
law, is hereunto added, as furnishing a statistical account that may be presumed to be
useful for general information : —
The Court has been in session 124 days.
The Grand Jury were in session 30 days.
The Trial Juries were in session 70 da3's.
The Grand Jury examined 313 cases.
They presented to the Court 270 indict-
ments.
There were 5 appeals from Police Court.
There were filed by the Altornej' of the
Commonwealth 16 informations.
The persons who pleaded Guilty were 64.
The persons who pleaded Not Guilty
were 184.
The verdicts returned by Trial Juries
were 113 Guilty, and 45 Not Guilty.
Persons sentenced to State Prison were
425 to House of Correction, 73 ; to House
of Reformation, 11.
Persons sent to House of Industry were 2.
Persons imprisoned in County Jail were 8.
Persons indicted and not arrested were 17.
The number of persons fined is 44.
The amount of fines is 1526 dollars.
Persons who fled and forfeited their re-
cognizances are 19. They have been sued
by Commonwealth's Attorney.
Cases continued to next term are 16.
Pages of the Records of the Court for 1837,
are 1012, folio, demi paper.
44 ATTORNEY GENERAL'S REPORT. Jan
ABSTRACT OF THE REPORT
CHARLES A. DEWEY, ESQ.
Attorney for the Commonwealth for the Western District,
comprising the Counties of
HAMPSHIRE, HAMPDEN, FRANKLIN AND
BERKSHHiE,
Of his OiEcial Business to 1st June, 1837, as made by him to the
ATTORNEY GENERAL.
1838.
SENATE— No. 1
45
Cases to be disposed of.
How disposed of
1
O
CAUSES OF COMPLAINT.
S
13
'3
REMARKS.
be J-
ro
03
als.
ions,
2 s
c O
,^ 3
.= C
'a 7
s
«i 1 o
"" a
■o «
V C
Q i "3
|.3t ■>
« 'S
<^^
^
JO
g:i
= '. o
1; §
=5 §
PL,
1
3
19
<! 2
-1 ^
1
7 27
<!i O
^: o
Larceny,
1 17
2
Nuisance,
2
1
5 8
2
1
Forgery,
1
1 2
1
-
Violating Sepulchres of the
Dead,
1
1
1
License Law,
4
1
6 11
3
1
1
Assault and Battery,
3
6 9
2
1
Riot,
1
1
1
Trespass,
1 1
Arson, 2d degree,
1 1
Fraud,
1 1
Gaming,
3
3
3
Violating Lord's Day Act,
1
1
Total,
3
34
~12
3 66
2 30
3
3
Writs of Scire Facias,
Total Cases on this Abstract,
66
Deduct Cases pending at the |
date of last Report,
3
Total NEW Cases since last
Report,
63
Of the foregoing persons convicted, there were sentenced
to confinement to hard labor in the State Prison :
5 for I year.
46 ATTORNEY GENERAL'S REPORT. Jan
I
ABSTRACT OF THE REPORT
GEORGE ASHMUN, ESQ.
Attorney of the Commonwealth, pro tempore, within the
County of
HAMPDEN, PART OF THE WESTERN
DISTRICT,
From Ist June to 15th September, as made by him to the
ATTORNEY GENERAL.
1838.
SENATE— No. 1.
m
Cases to be disposed of.
How disposed of.
1
1
o
CAUSES OF COMPLAINT.
®
t
'O
REMARKS.
m
v
03 J
be JH
ai
o
o
0)
•S^
«3 ~
o
CL.
s
13 «
5S M
3
>
«
G. O
o
1 «
s
o
"o
a
Ck
M
<;
Z
H
!-
O
ISlO
Murder,
1
1
1
Trial— Jury
did not agree.
Larceny,
1
1
1
The defendants
sentenced to
Trespass,
1
1
1
Sta'te Prison
for2dayssol-
itary, and 2
Nuisance,
2
2
2
years hard
labor.
Assault and Battery,
1
1
1
Total,
6
6
3i
3
48 ATTORNEY GENERAL'S REPORT. Jan
ABSTRACT OF THE REPORT
HENRY HUBBARD, ESQ.
Attorney for the Commonivealth, pro tempore, for the
County of
BERKSHIRE, PART OF THE WESTERN
DISTRICT,
Of his Official Business, from June, 1837, until September, 1837, as made
by him to the
ATTORNEY GENERAL.
1838.
SENATE— No. 1.
49
Cases to be
dispos
ed of.
How disposed of.
CAUSES OF COMPLAINT.
1
'5
REMARKS.
-
73
c»
0)
s
o
f
'-6
bo i
05
ca
a ^^^
1 §
.
o
u^
s
T3 «
m
$ sq
03
C"
>
s
-2
-
r^N
&< o
O
y
o
o
o
fL,
w
<; z
H
<1
O
^
O
Larceny,
2
2
1
1
Forgery,
1
1
1
Perjury,
2
2
2
Assault and Battery,
2
,2
1
1
License Law,
2
2
—
1
4
*
3
2
*1 appealed.
9
9
Total Cases on this Abstract,
9
50 ATTORNEY GENERAL'S REPORT. Jan
ABSTRACT OF THE REPORT
DANIEL WELLS, ESQ.
Attorney for the Commonwealth, pro tempore, in the
County of
FRANKLIN, PART OF THE WESTERN
DISTRICT,
From 1st of June to the 15th of September, and Attorney of the Common-
wealth for said District, from said day, containing an accomit of
his Official Business to the 31st October, 1837, as
made by him to the
ATTORNEY GENERAL.
1838.
SENATE— No. 1.
51
Cases
10 be disposed of.
How disposed of.
GS
o
.
CAUSES OF COMPLAINT.
s
^-
EEM.\IIKS.
<
■2
o
s
^
x6
a
s
Acquittals.
1 Nolle Prose)
1 Continued.
Assault and Batterj^,
]3
*4
17
4
*4
1
4
1 *1 by reason
■ ' of Inf anity.
( *1 do. do.
Trespass and Malicious Mis-
chief,
2
4
6
1
1
Larceny,
12
2
14
8
1
3
GJaming,
3
3
3
Forger}-,
1
1
1
Nuisance,
9
14
23
9
On the Victuallers' License
Law,
2
1
3
2
Violation of Lord's Day Act,
1
1
1
Murder,
1
1
1
Perjury,
2
2
1
1
Accessory to Larceny,
1
1
1
Extortion,
1
1
13
5
2
27
Total,
47
26
73
Writs of Scire Facias,
Total Cases on this Abstract,
73
Add Cases on Mr. Dewey's
Report,
66
Add Cases on Mr. Ashman's
Report,
6
Add Cases on Mr. Hubbard's
Report,
9
In the District,
154
52 ATTORNEY GENERAL'S REPORT. Jan. 1838.
Of the foregoing persons convicted^ there were sentenced
to confinement to hard labor in the State Prison :
1 for
1
1
1
2
y
ears.
5
a
2
u
1
a
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