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Full text of "Report of the attorney general for the year ending .."

SENATE .....No. 15. 



THE 



ATTORNEY GENERAL'S 



ANNUAL REPORT... 1841. 



PART I. 



27 1888 



(gromtnontoiraltf) of M^tin^tf^nmnn. 



Attorney General's Office, 
1st February, 1841. 

To the Honorable, the 

President of the Senate : 

Sir: — 1 have the honor to transmit to you my Annual 
Report, in two parts, prepared in obedience to the provisions 
of the Statute of 1839, ch. 157. 

The first part relates to ''the official duties of the Attorney 
General:'' The second is compiled from the materials, so far 
as I have received them, which the Statute requires the Dis- 
trict Attornies and other officers to have made to me, on or 
before the 15th January last, for the purpose of presenting the 
annual " Statistics of Crimc:^ 

I pray you to lay this Report before the Honorable the Leg- 
islature. 

With the highest respect. 

Your obedient servant, 

JAMES T. AUSTIN, 

Attorney General. 



ATTORNEY GENERAL'S REPORT. [Feb. 



(Sromtnotttoealttj of M^fitiatf^uutttn. 



The Attorney General has the honor, in obedience to the 
provisions of the Statute of 1839, chapter 157, respectfully 
to submit the following 

REPORT. 

PART I. 

Of the official duties of the Attorney General. 

By the provisions of the Statute of 1832, ch. 130, the care 
and direction, within the State, of all civil process to which 
the State is a party or otherwise interested, is assigned to this 
officer. This provision, which by that Statute was for the first 
time made a component part of his regular official duty, has 
by several subsequent Statutes been greatly extended, so as to 
embrace all requisitions for professional assistance by the sev- 
eral public departments, and the processes instituted under 
direction of the Bank Commissioners. During the past year 
these requisitions have been met in various instances, the result 
of which may be seen in the accounts of the Treasurer 
printed by order of the Honorable Senate, and in other cases 
that have been and yet are pending in the Supreme Judicial 
Court. 

The ancient mode of proceeding by warrant of distress 
against persons or corporations delinquent at the Treasury, 
having been superseded, there is now no mode of obtaining 
payment of the demands of the Commonwealth, where they 
are not voluntarily made at the time, but by the ordinary pro- 



1841.] SENATE— No. 15.— PART l. 5 

cess of law. The revenues of the State, being principally 
derived from banks and auctioneers, and the sales upon credit 
of the public lands, it is obvious may in a great measure be 
embarrassed by a neglect or failure of the parties indebted, or 
by the want of prompt means in obtaining judgment. 

In case of the inability of the State's debtors fully to dis- 
charge all their liabilities, the priority of right on the part of 
the whole public over individual creditors is not in all cases 
secured ; and experience indicates the possibility, from this 
cause, of considerable liability to loss. It is found, too, that 
the bonds of auctioneers are not always taken in sums suffi- 
ciently I irge in amount, or with sufficient regard to the respon- 
sibility of the sureties, so that in case of the failure of the 
principal, the Commonwealth is liable to a loss of its tax. In 
no case, as yet, has there been any failure by any of those 
larger establishments from whom the bulk of the auction tax 
is received ; but in the vicissitudes of commercial enterprise, 
such an event may occur, and can be better guarded against 
beforehand than remedied afterwards. 

(Questions have arisen whether property sold by auction, 
under the operation of the insolvent law, is exempted from 
payment of the tax, the provision of the Statute in this respect 
admitting of different constructions. 

I have deemed it proper, respectfully to submit to the Legis- 
lature the above considerations derived from the experience of 
the past and former years, as a part of my official relation to 
the Commonwealth on which they might rightfully expect 
information. 

The subject of an interference, on the relation of the parties 
interested in suits, which are sought to be instituted for the 
due enforcement or forfeiture of funds for eleemosynary pur- 
poses, was noticed in my last annual report, and continuing to 
present new quef.Uons of interest, I beg leave respectfully to 
refer to the statement therein presented. 

In the criminal department there have been five trials for 
capital offences during the year. Two of the parties were 



6 ATTORNEY GENERAL'S REPORT. [Feb. 

convicted of a mitigated offence, — one was acquitted ; in the 
other, the jury being unable to agree after two venires, the 
defendant was discharged on her own recognizance. Two 
new cases now remain on the docket for trial. 

In cases of this character, the prisoner is entitled to the 
peremptory challenge of twenty jurors, which, with an unlim- 
ited number for cause, gives the accused in fact the selection 
of the jury. The Commonwealth is not entitled to any per- 
emptory challenge. It is believed that it would produce a 
greater probability of agreement, if the Commonwealth was 
entitled to such right in a limited degree, not exceeding three 
or at most five. 

Questions of law, reserved in criminal cases at the Common 
Pleas, have been presented to the Supreme Court in their 
usual number and variety, and have been argued by the Attor- 
ney General. These must of course vary every year, both in 
their relative intricacy and importance. By the Statute of 
1839, under which this report is prepared, it is not understood 
that a detail of these various cases is now to be enumerated. 

The demand upon this State for fugitives from justice, and 
the requisition upon other States for fugitives from this, is one 
of the subjects to which the Attorney General is by the Re- 
vised Statutes particularly to attend. This branch of duty 
has sometimes given rise to novel and interesting discussions ; 
but though many cases have occurred, the year has passed 
without any thing peculiarly important. The question of 
most interest has been, in what cases the applicant for an 
Executive requisition should proceed at his own expense or 
that of the State ; and this question, in the absence of any 
legislative direction, is, after the facts and circumstances have 
been ascertained by the Attorney General, decided by the Su- 
preme Executive. It is obvious, however, that the application 
for the process needs to be carefully watched, as from very 
obvious circumstances it will be more and more in request, and 
add to the expenses of the State. 

Informations against State Prison convicts for additional sen- 



1841.] SENATE— No. 15.— PART 1. 7 

tences upon a singularly complicated system of laws, under 
which decisions materially at variance with each other have at 
times been made, are now prosecuted in the Municipal Court, 
from whose judgment a writ of Error or Bill of Exceptions lies 
to the Supreme Court. It is respectfully submitted, that this 
subject is not appropriately brought within the animadversion 
of a local court ; and to save expense as well as to provide for 
final jurisdiction in the first instance, they should be transferred 
to the exclusive cognizance of the Supreme Court, and the local 
ofiicer now pressed with other business be relieved from 
attending to these cases. 

The general condition of the criminal department will be 
found in the abstracts and tables compiled from the reports of 
the District Attornies, Judges of Pohce Courts, and Clerks of 
the Judicial Courts, which form the second part of this report. 

At the last session of the Legislature, for the first time 
under the law of 1839, I had the honor to present a very 
minute compilation of all the materials furnished to me in 
twenty separate tables, covering, in its printed form, one hun- 
dred and forty-three pages of the document No. 20 of the 
Honorable Senate, and condensed from several hundred thou- 
sand figures. 

The time necessarily occupied in preparing that analysis, 
and the delay incident to the printing of so many columns of 
figures in tabular form, prevented the distribution of the docu- 
ment until the close of the session, and of course any action 
by the Legislature on the results, which to that extent were 
for the first time presented to its consideration. 

I have ventured to believe that a less copious detail would 
be advantageous on the present occasion, not only to prevent 
the delay in the possession of the document, which to some 
degree would defeat the object of compiling it, but because 
the comprehensive statistics in that report may well serve 
as a reference for the more general abstracts of the present 
year ; and in connection with these more condensed state- 
ments, sufficiently explain the condition of crime, its par- 



8 ATTORNEY GENERAL'S REPORT. [Feb. 

ticular directions and tendency, — the character of the punish- 
ments inflicted, and the sanitory operation of the laws. 

Being directed to accompany these statements " with such 
observations as in my opinion the criminal jarisprudence and 
the proper and economical administration of ,he criminal la\v 
shall warrant and require," I do, in obedience to that direction 
most respectfully submit : — 

I. That although there have been durirg the year some 
cases of most atrocious crime, the general character of the 
criminal calendar is that of the more common and mitigated 
offences. 

II. It is obvious that the duty of the criminal department 
has been more onerous from year to year, and that there has 
been ai general progression, in this respect, for several succes- 
sive years. The increase of the county balances is both the 
proof and the consequence of this additional duty upon the 
criminal department. 

This increase is to be traced to several causes : 

1. To the increase of population and the inherent vice of 
society, which under every administration of criminal law and 
under every known code of criminal jurisprudence, bear a cer- 
tain relation to each other. 

2. To the greater facilities of intercourse between populous 
cities of which the felon takes advantage as well as the true 
man. This intercourse not only favors crime by the chances 
of escape, but by requiring pursuit to be made to distant places^ 
and often requiring the travel and attendance of witnesses 
from other States, adds much to the charges of prosecution. 

3. The more elaborate mode of trial, gradually extending 
from year to year, has added much to the expense of criminal 
prosecutions by augmenting the bills of costs. 

4. The Legislature has from time to time added to the list 
of actions punishable as crime. The 18th section of the 
130th chapter of the Revised Statutes, is the foundation of at 
least one thousand criminal complaints in the course of a 
year. 



1841.] SENATE— No. 15.— PART I. 9 

5. The fees of witnesses before magistrates have been 
raised from 33 to 50 cents per day. 

6. Temporary circumstances sometimes increase the costs, 
and of course the county balances, payable by the Common- 
wealth. Thus, under the statute of 1838, ch. 157, a vast num- 
ber of prosecutions were instituted, as shown in previous re- 
ports. Most of these were litigated with great zeal, and with 
entire recklessness of expense, on the part of the defendants. 
The Commonwealth was of necessity compelled to similar ex- 
ertions. By a resolve of 1840, ch. 52, the pending prosecutions 
were discharged. The costs of 417 were thus assumed by the 
Commonwealth, as is seen on page 137 of my last annual re- 
port, according to retu'-ns then received. By subsequent re- 
turns, 438 cases, creating costs to the amount of $5,959 59, 
as appears by the — table in the present report, became charge- 
able to the Commonwealth. 

Other cases, pending in the several police courts, and before 
magistrates, swell this sum to an amount not less than seven 
thousand dollars, which has or in due time will appear in the 
county treasurers' balances. 

It has been sometimes supposed, that the charge upon the 
Commonwealth was increased to too great a degree by the 
number and expense of the prosecuting officers ; and that these 
were more in number, and at larger expense, than in other 
States of the Union. 

Of the first branch of the complaint, it is not my province to 
do more than state the facts. The whole civil and criminal 
department, properly belonging to such oflacers, is managed by 
six individuals, at the cost of seven thousand dollars per annum, 
unequally divided between them. 

In the State of New York, there are, in addition to an Attor- 
ney General, as appears by the printed report of the comptroller 
for 1839, now before me, and the last that I have received, 
fifty-six prosecuting officers, and the compensation of forty- 
five, from whom only returns are reported, amounted, for the 
year 1838, to $25,798 40. Among the number omitted is the 
3 



10 



ATTORNEY GENERAL'S REPORT. 



[Feb. 



District Attorney of the city of New York ; and by calculation, 
founded on the relative proportion of fees, it may be safely con- 
cluded that the whole annual amount to the State, is not less 
than $38,000. 

Although in that large State the public service demands 
more time and labor than in ours, yet the difference bears a 
very unequal proportion, as may be seen in the official returns 
for the preceding years : 

Number of Criminal Convictions. 





1835. 


1836. 


1837. 


Total. 


New York, 
Massachusetts, 


1076 
693 


963 
679 


1086 

852 


4216 
2961 



It is believed as extensive and costly a system is adopted 
in the State of Pennsylvania. In each county in that State, 
is a prosecuting officer, and in some counties an additional 
counsel, or additional fees to the same officer for civil busi- 
ness. No general statement has been seen by me ; — but for 
a different purpose, the special reports in 26 counties, for 
one year, to the first of January, 1839, were sent to me, 
from which it appears that to 34 officers there was paid 
$5,342 19, including $2,365 78 to the Attorney General, for 
his services in the city of Philadelphia. 

In a report presented to the Legislature of New York, a 
comparison was instituted in respect to the prevalence of crime 
between that State and some of the principal countries of 
Europe. But it was well observed, that by reason of the dif- 
ferent classification of offences, and the difference which exists 
in the administration of the criminal laws, such comparison 
was exceedingly difficult. To some extent, the difficulty ex- 
ists in any comparison between this Commonwealth and any 
other State, principally by reason of the offences, which are the 
subjects of summary convictions, but not to so great a degree 
in regard to the labor of the judicial department in criminal 
affairs. Thus the convictions in 1836, in England and Wales, 



i841.] SENATE— No. 15— PART 1. U 

amounted to 14,771, in a population estimated at 14,000,000, 
or one to every 948 inhabitants. In New York, in 1838, they 
were 1,086, in a population of 2,200,000, or one to 2,025, In 
Massachusetts, in 1838, they were 852, in a population estima* 
ted at 700,000, or one to 822. See the tables compiled from 
the reports made to the Attorney General, in his report made 
to the Legislature 3d January, 1839, and the report of the Sec- 
retary of the State of New York, dated 1st February of that 
year. The cause of this apparent excess is also obvious, by a 
comparison of the tables. The prosecutions by indictment, in 
this State, include many minor offences, which are elsewhere 
proceeded against in a more summary way. 

But no change can be recommended in our practice. It 
would be injurious to public manners, that the smaller offences 
should be unpunished, and against private right and public lib- 
erty, to proceed against the offenders in a more summary mode. 

The Legislature will not consider these remarks inappropri- 
priate, when it is understood that the subject matter of them 
has already been the subject of commentary in other countries, 
where the forms of our judicial proceedings are not correctly 
appreciated. 

Having thus submitted the results of my observation and 
experience on this subject of the criminal costs, the Statute 
requires from me an expression of opinion in regard to 
the future economical administration of this department. In 
deference to this authority, and with the most respectful 
consideration for the high constitutional prerogative of the 
Legislature, I venture to make the following suggestions, to be 
modified by such amendments as in their wisdom they may 
deem proper. 

1. That the administration of the criminal law should be 
made uniform, and be conducted by the same courts through 
all the counties of the Commonwealth, by Avhich an annual 
diminution of ten thousand dollars may be made in the gen- 
eral expenses. 

2. That all prosecutions for the illegal sale of ardent spirits, 



12 ATTORNEY GENERAL'S REPORT. [Feb. 

or for the undue indulgence in the use of them, should be 
prosecuted in the name of the Commonweallh, only on the 
complaint and at the option of the selectmen of the tov^rn 
in which the accused resided ; and that the costs, when not 
paid by the accused party, should be charged to the town. 
By this simple amendment another sum, not less than ten 
thousand dollars per annum, would be struck off the county 
balances, and more than half of it — if I am not much mis- 
taken — entirely saved, without any diminution in the efficacy 
of the existing prohibitions. 

It is believed, that a great proportion of the past prosecutions 
on these laws are the result of personal passion and ill temper. 
In some, at least, men who are angry with their neighbor for 
one cause, prosecute him for another. 

The Legislature has already provided, that the costs of the 
prosecution on the by-laws of a town shall be charged to the 
town, and not the Commonwealth. 

The offences above alluded to, though involving high moral 
consequences, and of mighty moment to the Commonwealth 
and the nation, are nevertheless of the class of municipal regu- 
lations, because, to a certain extent, it is the abuse only of a 
municipal privilege, of which the law takes cognizance. The 
selectmen, who may approve an application for a license, are 
the suitable supervisors of those, who ought, or ought not, to 
obtain it. 

But besides, the experience of our legislation indicates, that, 
for the great objects which these laws have in view, it is the 
paternal government, and the public opinion of the community, 
and not the stern severity of criminal law, which is the most 
effectual agent. Now the selectmen are truly the custodes mo- 
rum of the little republics over which they preside ; and could 
do more by influence and mildness in this regard than the 
sheriff, the constable, or the House of Correction. Certain it 
is, that the Commonwealth is now at great expense to very 
little benefit. The crime seems to grow with the prosecutions. 
A thousand bad passions are generated, and very little reform- 



1841.] SENATE— No. 15.— PART 1. 13 

ation produced. Some change is indispensable, and nothing 
can be more injurious than the present system. 

3. The fees of witnesses before justices, are an inducement 
to prosecutions, and, in many cases, the half dollar, nominally 
for a day's attendance, is earned in half an hour. The fiction 
of the law, that a day cannot be divided, should be treated as 
a fiction, especially in populous places. 

4. The expense of bringing persons to the magistrate's place 
of business, and thence to jail, is an increasing item of expense, 
and belongs especially to prosecutions for inferior oifences. 
Great innovations have been made on ancient practices in this 
respect, and are gathering force by precedent and custom. 

Differences might be made in these expenses — and, by judi- 
cious officers, often are — -between persons accused of felony, or 
other high crime, and the supposed perpetrators of some less 
aggravated offence. The proceedings, in this respect, are not 
under the eye of the prosecuting officers of the government, and 
of course, I have no official information upon the subject, but, 
as it is said by authority, that " report is a proper cause for in- 
quiry," it may authorize me respectfully to make the above 
remark. 

It is an observation that experienced men have made in most 
parts of our country, that there are apparently tides in the 
character and flow of crime. Sometimes the State is compara- 
tively tranquil, and again subject to violent irruptions. At one 
period, one species of crime prevails more extensively, and at 
another period, another. 

Notwithstanding the number of prosecutions, and the flagrant 
oflences that have received judicial animadversion, the past 
year may, on the %vhole, be deemed favorable to the general 
peace of the Commonwealth. 

Most respectfully submitted, by 

JAMES T. AUSTIN, Attorney General