King's Counsel

“ Counsel's opinion The proposal is still less plausible when it is considered that at present, without any new legislation at all, any manager who is doubtful about a play can obtain the advice of his solicitor, or Counsel's opinion, if he thinks it will be of any service to him. The verdict of the proposed King's Proctor would be nothing but Counsel's opinion without the liberty of choice of counsel, possibly cheapened, but sure to be adverse; for an official cannot give practical advice as a friend and a man of the world: he must stick to the letter of the law and take no chances. ”

“ The king's council members who are not peers, in particular the justices and the Masters of the Chancery, are summoned by the House of Lords only as mere assistants. Parliament can change the common law by statute. The right of a peer to be tried for capital crimes by a court composed of his peers was established. There is a widespread belief that all the peers are by right the king's councilors.
No attorney may practice law and also be a justice of assize. No justice may take any gift except from the king nor give counsel to any litigant before him. ”

“ PREAUDIENCE AND PRECEDENCE OVER ALL HIS MAJESTYS COUNSEL.
Walter Archer,—Privy Seal, Westminster, July 9,—patent. Sept 14, 1615.—Life.—13 Jac. I.—Being a man learned in his profession, of good conformity in his religion, and otherwise for his life and manner well reported of, was admitted one of the King's counsel at law, and the rather because we understand (says the King) that good and necessary use may be made of his service there by reason of his knowledge of that country which the rest of our learned counsel there do want. ”

“ I know it has been said for His Majesty's service, grand juries may be forced to discover their counsels: But you will confess a king can do nothing against law, nor will any honest man judge that for his service, which is not warranted by law. If a constant uninterrupted usage, can give the force of a law, then the grand jurymen are bound by law, as well as by their oaths, to keep the King's, their fellows' and their own counsel secret. ”

“ Yet in the277 King’s Court, where his Majesty is himself also sworn to administer the justice of England—in the King’s Court—who receives his high authority under a solemn oath to maintain the Christian religion, as it is promulgated by God in the Holy Scriptures, I am nevertheless called upon as counsel for the prosecution to “produce a certain book described in the indictment to be the Holy Bible.” No man deserves to be upon the rolls, who has dared as an attorney to put his name to such a notice. ”

“ The institution of the rank dates from the days of Charles II, when Sir Francis North, Lord Guildford, [Pg 69] was created King's Counsel by a writ issued under the Great Seal. As was customary in the case of a barrister proposing to "take the coif," so in that of one proposing to "take silk"; he intimates to the seniors already holding the rank that he intends to apply for admission to the body. A story is current in the Temple that when Mr. ”

“ The Constitution is silent upon it. The word 'attorney' is not mentioned, and the word 'counsel' is only mentioned in it as the right of a person accused of crime. It is an act of Congress that creates us and gives us the right to appear here as attorneys and counsellors at law under certain limitations. Congress has imposed very few upon us. Congress very wisely have given to the court the power to receive or to exclude, and to lay down the terms upon which a counsellor shall be admitted. ”

“ A Queen's Counsel, like the leader for the Crown, this was an altogether different type of lawyer; a younger man, with a more engaging manner; a more brilliant man, who sought with doubtful wisdom to blind the jury with his brilliance. His method was no innovation at the Old Bailey; it was to hold up every witness in turn to the derision and contempt of the jury and the court. ”

“ Rebuke those beasts of the people, and deliver Me from the rudenesse and strivings of the multitude.
Restore, We beseech thee, unto Us, the freedoms of Our Councels and Parliaments, make Us unpassionately to see the light of Reason, and Religion, and with all order and gravity to follow it, as becomes Men and Christians; so shall We praise thy Name, who art the God of order and counsel.
What man cannot, or will not represse, thy Omnipotent Justice can and will. ”

“ IV. If I understand the Attorney-General, the only ground upon which he maintains the validity of the act of 1865, is that the right to be attorneys and counsellors of this court, or of any court of the United States, is not a natural one, but one given by law only; a right to be regulated at any time by law, or not be given at all, or, when given, to be at any time taken away. Without stopping to inquire whether these propositions are correct, I deny, with perfect confidence, that Congress can prohibit the appearance of counsel in the courts of the Union. ”

“ The relations between Judge and Counsel in a properly constituted Court, should be those of mutual reliance and esteem. There should neither be arrogance on the one hand, nor subservience on the other. ”

“ Who will ever counsel his king, if his counsel be judged by the event, and if it be not found wise, shall therefore be thought wicked? ”

“ The General Counsel is, indeed, indispensable to the prosecution of the case. He vindicates the public interest, performing functions previously performed by the Board itself. [10] See National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 352, 60 S.Ct. 569, 571, 84 L.Ed. 799. Plainly the issuance of subpoenas may often be essential to the performance of that role. To relegate him to a lesser role than that of a 'party' is to overlook the critical role he performs in enforcement of the Act. ”

“ Thus then it is: you can be allowed counsel to examine your own witnesses, and cross-examine the witnesses for the crown, and speak to points of law, to be started by yourself,—but no further.
He then asked her what gentleman there present he should assign to her for counsel.
Her reply to this inquiry took the whole court by surprise, and made her solicitor, Houseman, very miserable. "None, my Lord," said she. "Half-justice is injustice; and I will lend it no color. I will not set able men to fight for me with their hands tied, against men as able whose hands be free. ”

“ A titter is heard at the idea of a man going about with a name like that. His Lordship, regarding it as a nuisance rather than a joke, threatens to have the court cleared. A juryman in waiting in the gallery seizes the opportunity to ask, if anyone is to be turned out, might it be himself.
Counsel goes on to mention the case. "A complicated case of false pretences, my Lord——," he begins. But his solicitor plucks at his gown and points out to him that he is confusing his briefs. Counsel apologises to the Court and asks leave to refresh his memory. ”

“ Often the main purpose of such visits is not so much to plead the cause, as to show the judge who the party is—an acquaintance, perhaps—and thus, at least, to interest his feelings. Counsel should set their faces against all undue influences of the sort; they are unfaithful to the court, if they allow any improper means of the kind to be resorted to. ”

“ If upon the grounds of public policy and free administration of the law the privilege be extended to judges and witnesses, although they speak maliciously and without reasonable or probable cause, is it not for the benefit of the administration of the law that counsel also should have an entirely free mind? Of the three classes—judge, witness, and counsel—it seems to me that a counsel has a special need to have his mind clear from all anxiety. A counsel’s position is one of the utmost difficulty. ”

“ But I will not take the law from the Court; the jury are my judges; I will not take the dictum of his lordship. I cannot sit down without going further into my defence, unless it is positively decided that I shall not proceed.
The Chief Justice: You must not deny the truth of the Christian religion, nor are you to go into irrelevant matter; if I am wrong you can appeal to the Court of King's Bench.
Mr. Carlile: By what means can I appeal to the Court of King's Bench when I am confined within the walls of a prison? ”

“ In practice they delegate this function to the Law Lords, five of whom, seated on the red benches with rickety desks in front of them, spend interminable mornings appraising subtle and circumlocutory arguments addressed to them from the Bar of the House by learned Counsel, standing at a kind of lectern, and surrounded by their fellows eager to propound distinctions. There is, however, nothing to prevent any Noble Lord so minded from partaking in this intellectual feast. ”

“ Every argument that Kennedy could summon was brought to bear. He even talked over long distance with the lawyers in New York. At last the rules were relaxed and Kennedy was admitted on some technicality as counsel. Counsel can see the condemned as often as necessary. ”

“ But political employment seemed farther off than ever. At the outset of his career in Parliament he irritated Elizabeth by a firm opposition to her demand of a subsidy; and though the offence was atoned for by profuse apologies and by the cessation of all further resistance to the policy of the Court, the law offices of the Crown were more than once refused to him, and it was only after the publication of his "Essays" that he could obtain some slight promotion as a Queen's Counsel. ”

“ If the State may arrest on suspicion and interrogate without counsel, there is no denying the fact that it largely negates the benefits of the constitutional guaranty of the right to assistance of counsel. ”

“ In 1691, being member of the house of commons, he argued warmly in favour of a law to grant the assistance of counsel in trials for high-treason; and, in the midst of his speech falling into some confusion, was for a while silent; but, recovering himself, observed, “how reasonable it was to allow counsel to men called as criminals before a court of Justice ”

“ The leading common-law work of the High Court is practically divided among a dozen or so eminent Queen's counsel. It is a matter of common complaint that the leaders accept briefs, knowing well at the time they receive them that they will not be able to attend to them. ”

“ Some gentlemen here seem to think, that, by surrounding the king with good counsellors, we may succeed in bringing him to rule with justice. But good counsellors, under the influence of an unscrupulous Court, may any day change their character ”

“ Anybody who does not give loud expression to the opinion at the nearest bar when the Court rises, that he could have managed the case for either or both sides infinitely better than the Counsel engaged. ”

“ Judging others by himself, the Able Assistant will rely on the use of money. Special counsel is obtained to try to have the illegal conviction sustained in the higher courts. A man of national reputation, the leader of his party, and noted for his political influence and his willingness to use it; 137who, strangely enough, when high in office appointed some of the judges who are to listen to his argument, may be retained to argue before the Court of Appeals, and beg that it allow the conviction to stand. ”

“ The Court points to England, Scotland, Ceylon and India as having equally rigid rules. As in Brother HARLAN points out, post, pp. 521-523, the Court is mistaken in this regard, for it overlooks counterbalancing prosecutorial advantages. Moreover, the requirements of the Federal Bureau of Investigation do not appear from the Solicitor General's letter, ante, pp. 484-486, to be as strict as those imposed today in at least two respects: (1) The offer of counsel is articulated only as "a right to counsel"; nothing is said about a right to have counsel present at the custodial interrogation. ”

“ Counsel will be doing injustice to his own position if he assumes that the Court has any other attitude than to finally dispose of these matters according to the law without doing injustice to any person, either to the District Attorney or any person who is unfortunate enough to be involved. ”

“ If, indeed, Counsel were usually accustomed to employ the arts of oratory, and the dodges of dialectics, in order to make the worst appear the better cause in the eyes of twelve men more or less liable to be deceived and deluded, then, indeed, the reticence of a respectable and intelligent Press, in abstaining from any remarks capable of helping a jury to deliver a righteous verdict, would not perhaps be quite so purely advantageous as it is now. ”

“ Counsel ought to decline to conduct a civil cause or to make a defence when convinced that it is intended merely to harass the opposite party or to work oppression. His appearance in court should, therefore, be deemed equivalent to an assertion on his honor that in his opinion his client's case is a debatable one and one proper for judicial determination. ”

“ It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper; and to judge upon the reasonableness or unreasonableness of the thing advised. Whereas our obedience to the law depends not upon our approbation, but upon the maker's will. Counsel is only matter of persuasion, law is matter of injunction ”

“ It is not respectful, nor is it the duty of counsel, to say they have a right to offer any thing they please. What! decisions in Rome, France, Turkey? No lawyer will say that common law cases are law under the statute of Edward the Third, nor justify those judges who overset the statute of William, and overrule the necessity of having two witnesses to one overt act, and to admit hearsay testimony to prove matters of fact. It is the duty of counsel to lay down the law, but not to read cases that are not law. ”