Law officer of the Crown

“ Now, this want of jurisdiction of the inferior court in a summary proceeding to remove an officer of the court, or disbar an attorney or counsellor, is one of the specific cases in which this writ is the appropriate remedy. We have already seen, from the definition and office of it, that it is issued to the inferior courts 'to enforce the due exercise of those judicial or ministerial powers with which the crown or legislature have invested them ”

“ Though mandamus may sometimes lie against an executive officer to compel him to perform a mere ministerial act required of him by law, yet such an officer, to whom public duties are confided by law, is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as part of his official functions. ”

“ The titles of lord chief justice of the common pleas and lord chief baron were abolished by the Judicature Act 1873, and all the common law divisions of the High Court united into the king’s bench division, the president of which is the lord chief justice of England.
The lord chief justice is, next to the lord chancellor, the highest judicial dignitary in the kingdom. He is an ex-officio judge of the court of appeal. He holds office during good behaviour, and can only be removed by the crown (by whom he is appointed) after a joint address of both houses of parliament. ”

“ Can it be doubted that upon application from those whose interests are involved in the performance of his duties by the marshal, it is the right and the duty of the court in such a case to correct the irregularities of its officer, and to compel him to perform his duty? There is inherent in every court a power to supervise the conduct of its officers, and the execution of its judgments and process. ”

“ If the case cited from the queen's bench were susceptible of a different construction, it should not have controlling influence. Here no such relations exist between the executive and judicial departments as exist in England between the crown and the courts. ”

“ The students at the inns of court complained to the council. The judges being consulted, reported unanimously that the issue of a commission under the great seal without sanction from the Crown was an offence by which, 'by the common law,' the chancellor had forfeited his office ”

“ We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well.
The object of this plainly worded clause was to prevent the appointment of unsuitable men to responsible offices under the Crown. The list of officers given is a comprehensive one—justices, sheriffs, constables and bailiffs—embracing all royal ministers and agents, both of the central and of the local government, from the chief justiciar down to the humblest serjeant. ”

“ In no other part of His Majesty's dominions would they be allowed to practise as attorneys, and whatever reason may have existed before this time for extending such an indulgence to them, none can be now pretended to exist after the liberal provision which His Majesty's Government have made for this purpose by the appointment of respectable solicitors at a considerable expense to the Crown—an appointment which would be rendered wholly unnecessary by granting the Petitioners' application. ”

“ The Duke of Newcastle points out (1) that the judges, especially the Commissioners of Appeal, were men of the highest legal reputation; (2) that they are bound to decide on the principles of the universal law of nations and particular treaties; (3) that in England the Crown never interferes with the judges, and never issues nor can issue orders to them ”

“ In the remotest regions of the country barons and knights and freeholders were called to aid in carrying out the law. The "jurors" must be ready at the judges' summons wherever and whenever they were wanted. They must be prepared to answer fully for their district; they must expect to be called on all sorts of excuses to Westminster itself, and no hardships of the journey from the farthest corner of the land might keep them back. ”

“ It also may be assumed that it was a jurisdictional requirement that, if the appointing authority determined that no officer of the Judge Advocate General's Department was then 'available for the purpose,' such authority was restricted to the appointment of 'an officer of some other branch of the service selected by (him) * * * as specially qualified to perform the duties of law member.' (Emphasis supplied.) If the officer who was appointed met neither requirement, it may be assumed that the court-martial would have been without jurisdiction. ”

“ Others grew tired of the drudgery, and were called to the Bar, where they remained junior barristers as long as they lived, old age having no effect upon their status. Some were promoted to the ancient order of Serjeants-at-Law, or were appointed her Majesty's Counsel, while some of the Serjeants received from the Crown patents of precedence with priority over all Queen's Counsel appointed after them, and with the privilege of wearing a silk gown and a Queen's Counsel wig. ”

“ 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. ”

“ From this position, claimed by counsel as a legitimate deduction from the statute, it is argued, that the clerk, having been appointed by an exercise of power wholly illegal and void, nay, even without color of authority, his acts, too, must be merely void, and not entitled to the effects properly attributable to the acts of one who may be considered as an officer de facto, in contradistinction to him whose commission and qualification are in all respects regular, and who therefore may be called an officer de jure and de facto. ”

“ In many of the continental countries of Europe a public officer is not amenable to the ordinary process of law, either by virtue of a provision that he cannot be sued or prosecuted in the ordinary courts, on account of any act done under color of his office, without the consent of a council composed of his official superiors, or because his acts are cognizable only by special administrative tribunals; and where this is true, it is clear that the judiciary cannot by their decisions bind the other branches of the government. ”

“ There is no such union of political and judicial functions in any officer in this country, and the relation of the chancellor in England to the government in no respect affects the importance of an independent tenure of office by judges of courts of record in this country during the prescribed period of their terms. ”

“ If the chief executive officer of a State is liable to be controlled by the courts of the State in the discharge of ministerial duties, for much stronger reasons is the chief executive officer of the United States liable to be controlled by this court under the provisions of the Federal Constitution. ”

“ It is stipulated that judges, who are appointed by the crown, may not be dismissed except in consequence of judicial sentence, nor transferred against their wishes from one tribunal to another, unless in the event of a reorganization of the courts; [799] that they shall exercise their functions strictly in compliance with law; that in criminal cases and cases involving political offenses trial shall be by jury; that in the administration of justice there shall be, so far as practicable, publicity and oral procedure ”

“ I do not recognize the doctrine that the attorney general takes any power by virtue of his office except what the constitution and the laws confer. The powers of the executive officers of England are not vested in the executive officers of the United States government, simply because they are called by similar names. It is the theory, and, I may add, the glory, of our institutions, that they are founded upon law; that no one can exercise any authority over the rights and interests of others except pursuant to, and in the manner authorized by, law. ”

“ My objection to the power exercised by the president in this case arises from the nature of the judicial office, when held by a judge of a court of record, and from its conflict with the tenure of the office conferred by the law under which the appellant was appointed.
1. The idea essentially appertaining to and involved in the judicial office is that its exercise must be free from restraint, without apprehension of removal or suspension or other punishment for the honest and fearless discharge of its functions within the sphere of the jurisdiction assigned to it. ”

“ 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. ”

“ The fellow says that a Chief Baron without a court,—he means this in allusion to the Crown not bringing those cases of treason-felony into the Exchequer,—a Chief without a court is like one of those bishops in partibus, and that it would n't be an unwise thing to make the resemblance complete and stop the salary. ”

“ This abrogates all exercise of jurisdiction, properly so called, whether of a civil or criminal nature, by the privy-council, as well as the star-chamber. The power of examining and committing persons charged with offences is by no means taken away; but, with a retrospect to the language held by the judges and Crown lawyers in some cases that have been mentioned, it is enacted that every person committed by the council or any of them, or by the king's special command, may have his writ of habeas corpus ”

“ Though the real security for an honest court of justice must be found in their responsibility to parliament and to public opinion, it was evident that their tenure in office must, in the first place, cease to be precarious, and their integrity rescued from the severe trial of forfeiting the emoluments upon which they subsisted. In the debates previous to the declaration of rights, we find that several speakers insisted on making the judges' commissions quamdiu se bene gesserint, that is, during life or good behaviour, instead of durante placito, at the discretion of the Crown. ”

“ In its internal administration the state (so far as concerns the Federal government) has entire freedom of choice as to the creation of an office for purely state purposes, and of the terms upon which it shall be held by the persons filling the office. And in such matters the decision of the state court, that the procedure by which an officer has been suspended or removed from office was regular and was under a constitutional and valid statute, must generally be conclusive in this court. ”

“ Attorneys-at-law are officers of the court, admitted as such by its order; but it is a mistake to suppose that they are officers of the United States, as they are neither elected nor appointed in the manner prescribed by the Constitution for the election or appointment of such officers. ”

“ The curia regis of the 12th century, combining judicial, deliberative and administrative functions, had thrown off several offshoots in the court of king's bench and other courts, but the Crown never parted with its supreme jurisdiction. When in the 13th century the king's council became a regular and permanent body, practically distinct from parliament, this supreme juris- diction continued to be exercised by the king in council. ”

“ No Court of Law can be instituted except by law. One Court of Appeal for the whole Kingdom is to be instituted at the Capital. The sittings of all tribunals shall be public, except in cases when the tribunal judges that this would be prejudicial to order or decency. "The Presidents and the members of the Courts of Justice will be chosen in the manner decreed by the law of the Ministry of Justice, and will be appointed by virtue of a royal Firman." No judge may be suspended, temporarily, or permanently, without a trial or proof of offence. ”

“ In fact, it was only since the reformation that this great office had begun to be filled by common-law lawyers: before this period it was usally exercised by some ecclesiastic who was also a civilian, and instances were not rare of the seals having been held in commission by noblemen during considerable intervals;—facts which, in justice to Hatton and to Elizabeth, ought on this occasion to be kept in mind. ”

“ But the courts cannot perform executive duties, or treat them as performed when they have been neglected. They cannot enforce rights which are dependent for their existence upon a prior performance by an executive officer of certain duties he has failed to perform. ”

“ Said the court: 'There is ample power in a court which has been regularly convened to adjourn to a futurn time, provided it be not beyond the term; but in the absence of a statute authorizing it, the clerk or other ministerial officer cannot act for the judge in either opening or adjourning court. The clerk is a ministerial officer, and, without statutory authority, can exercise no judicial function. The opening, holding, and adjournment of court are the exercise of judicial power to be performed by the court. ”