cessity have severally applied different solutions. To many services it has no application;-to others, its application is very uncertain;-and the antiquity of its provisions seems to give color of excuse to all, who depart from its authority. The Attorney General, with the assistance of the other prosecuting officers, will not fail to endeavor to have its precepts regarded, but he cannot hesitate to express a hope, that it will receive the revision of the Legislature. The Attorney General deems it his duty further respectfully to state, that by some clerical error, or other inadvertence in the Statute of 1832, ch. 73, in regard to convicts in the State Prison, the learned Judge, before whom cases arising under it are exclusively tried, has found himself unable to sustain any information against convicts once before sentenced and discharged. The importance of this Statute, to the well governing of that Institution, renders it exceedingly important that there should be no misunderstanding of the will of the Legislature. In regard to that part of the Statute under which this Report is submitted, which requires the Attorney General to be in attendance upon the call of the Legislature during their sessions," he begs leave respectfully to report himself, for such duties as the Legislature may be pleased to assign to him. Boston, 2d January, 1833. JAMES T. AUSTIN, DEAR SIR, [CIRCULAR.] BOSTON, JULY 10th, 1832. Among the objects which the Legislature had in view in the new organization of the department of Criminal Law, a principal one was to render its administration more economical, without impairing its vigor of action or practical efficiency. To promote this object, I beg leave to submit to your consideration the following observations: An early arrangement of business with the Grand Jury, and their consequent speedy discharge is so very desirable, that I can be excused for mentioning it, only because the power of accomplishing it does not solely depend on the representative of the Commonwealth. A delay on the part of the Magistrates in returning their recognizances, or a neglect of witnesses to be in attendance may frustrate all his exertions; but as the success of the system cannot be put in competition with individual convenience, or be exposed to hazard by habits of remissness that have grown into custom, I beg leave to refer you to the case of Jno. Neal, Esq. 14 Mass. Reports, page 205, as an authority, which should be enforced without hesitation whenever it is necessary. More however can be gained by good will than by power, and if by an earlier return of the Justice's papers, than is required by law, the preliminary arrangements for the Grand Jury can be made before the opening of the Court, their labors can commence immediately after, and much time, not less valuable to the Attorney than the Commonwealth, be thereby usefully saved. Such being the result of my own experience in this respect, I am induced to mention it for your consideration. In every case the bill of costs should include all charges, ordinary or extraordinary, which the case requires. Nothing should be taxed under the head of extra's, which is not especially detailed. No allowance should be made to any person, until the case is disposed of by a final judgment of the Court, where it can possibly be avoided; and where urgent circumstances require an earlier payment, the amount should afterwards be transferred to the regular bill of costs, as a charge paid in the case. The General Bill will then contain, as it should, only those items, which belong to the common business of the term, and are chargeable to no particular case. Under the head of extra charges, the sound discretion of the representative of the Commonwealth is liable to be abused by claims said to be made in conformity with long usage and established precedent. We are not bound by such authority, but on the contrary are required to make a reformation of illegal customs and improvident practises, if any such exist. I take leave however to say, that the allowance of every bill of cost, and of each and every charge it contains, is part of the judgment of Court, and can be paid only by virtue of such judgment; for which judgment, and by consequence for which payment, the Court and not the Attorney is ultimately responsible. All that be required of the District Attorney is to prepare and present bills of cost, according to his opinion of what is legal and correct. In common cases the Court, relying on his discretion and attention to the several interests of the Commonwealth and the claimants, would probably can adopt his taxation, or perhaps by some general rule authorize the Clerk to certify the bills which he approves, to be correct. But where there is a difference of opinion between the Attorney and the claimant, either as to the character of an alleged service, or the amount to be paid for it, the question should be settled by the Court, whose judgment will, as it ought, relieve the prosecuting officer from a responsibility which he is not required by law to assume, and which will be found in practice more troublesome than any part of his official duty. Some understanding may perhaps be necessary with the Judges of the Common Pleas on this head, and it is important to have the matter early and uniformly settled. Where the fee-table provides a definite compensation for specific service, however inadequate it may be deemed for the service rendered, there is no legal power to increase it. A disregard of its provisions cannot for the future be tolerated: and if in consequence of a strict adherence to them there should be any just complaint, such complaint may probably contribute, as it should, to a legislative alteration. Among cases claiming our official attention, are those where a party is holden for an intended unexecuted breach of the peace. Although this process has often been very grievously abused, its legitimate operation is among the most valuable powers of the public: and the judicious exercise of the authority, which the law devolves on the Magistrates of the county, may prevent at small cost not merely the punishment of aggravated crimes, but the perpetration of them. In preparing the returns which are required by the 9th section of the Act, no form beyond the particular details therein enumerated is deemed necessary to be 11 prescribed, because these returns are to be condensed, and an abstract of them presented to the Legislature. It is proper, however, that they should contain a statement of every case examined by the Grand Jury, whether originating before a Justice of the Peace or otherwise, and whether sustained or not by an Indict ment. It will be necessary that the judicial year comprised in these returns should terminate on 31st October, annually, and I shall hope to receive them by the first day of December, in order to prepare abstracts in season for the meeting of the Legislature on the first Wednesday of January following. I avail myself of this occasion to request, that whenever any professional or other consideration renders the management of a particular cause for the Commonwealth personally objectionable to you, and especially where any excitement exists in the community, or the enforcement of public justice requires, in your opinion, the aid of additional council, you would seasonably and freely make it known to me, that I may be prepared to render any assistance which may be practicable. It is not my inclination to limit my official labors by the strict letter of the law, which prescribes them, but entering into the spirit of the Legislature, which intended to give force and efficiency to the system, I shall be ready to discharge, at any time and at any place, those implied duties, which the public exigency requires, or the reasonable convenience of my colleagues may give them a right to expect. Of the provision of the law by which you are authorised to require my opinion in all matters appertaining to the duties of your office, I beg you will not hesitate most freely to take advantage, |