[153] *Annex (C.)
Position and duties of the law-officers of the Crown in England.
Annex (C.) As it has been necessary to refer from time to time to the opinions given by the British law officers, it may be convenient to explain more precisely than has been hitherto done what is their position as the legal advisers of Her Majesty’s government.
In England there is no ministry of justice or similar department of state to which recourse can be had by other departments when matters are brought before them on which a decision involving a question of law is required.
This want is supplied by the appointment of three law-officers, as they are called. Two of these—the attorney-general and solicitor-general— are barristers or advocates, with seats in the House of Commons, who have been selected by the ministry of the day, and who leave office when that administration is changed. They occupy, therefore, a double position—as the confidential advisers of the government on legal subjects, and as the natural defenders and expounders in Parliament of the proceedings which the government may adopt upon their recommendation.
The third law-officer—the Queen’s advocate—is a permanent official, and does not leave office on the resignation of the ministry by whom he was appointed. It has been usual to select for this office a barrister who has a special knowledge of civil and international law 5 and he is in consequence more particularly the legal adviser of the foreign office. Like, however, the attorney-general and solicitor-general, he has private practice as an advocate, and has generally numerous duties devolving upon him in connection with ecclesiastical and civil jurisdiction.
The law-officers have no bureau or office set apart for their use, and no regular staff of assistants or archives. As the Queen’s advocate therefore frequently possesses, from the permauent character of his appointment, a knowledge of official precedents with which the other law-officers may not be familiar, he generally acts as their draughtsman in the preparation of reports. Up to the date of Sir John Harding’s retirement the Queen’s advocate’s name stood first in the patent or letter of appointment under which the law-officers act; and he had, therefore, precedence over the other two. The result was that papers on which an opinion was requested were sent to him first, and, when he had perused [Page 410] and written his minute upon them, were passed on to the attorney-general, and afterward by him to the solicitor-general. In all cases of importance, and particularly when time is pressing, it is usual for the three law-officers to meet and confer together, after they have all read the papers, the appointment for the purpose being usually made by the senior in rank of the three.
Having thus shown the position occupied by the law-officers toward each other, and toward the government, it remains to explain the manner in which papers are referred to them, taking as an example questions arising under the foreign-enlistment act of 1819.
By the 5th, 6th, and 7th clauses of that act the officers of customs and excise were empowered to seize and detain vessels in case of contravention of the act, in the same manner as vessels were seized and detained under the laws for the protection of the revenues of customs and excise, or the laws of trade and navigation.
The duties of the officers of customs being primarily for the collection and protection of the revenue, the collectors or other head officers of the customs at the ports are under the authority of the lords commissioners of Her Majesty’s treasury, of which department the board of customs in London is a branch office. When, therefore, the consul of a foreign belligerent power has a complaint to make at a port that the foreign-enlistment act is being contravened to the prejudice of his country, he proceeds to the collector of customs, and lays before him the evidence he may have to adduce in support of the charge. This evidence is generally in the form of written statements, or affidavits, drawn up in proper shape, and sworn to, or solemnly declared to be true, before a magistrate. Copies or duplicates of these affidavits will then be forwarded by the customs collector to the board of customs in London, and by the consul to the diplomatic representative of his country.
In London the board of customs will transmit the affidavits to the treasury, and probably also take the opinion of their departmental legal adviser upon them. Some little time is consumed in the mere transmission of the papers, the custom-house being situated on the Thames, below London Bridge, and the treasury in Whitehall, near the Houses of Parliament, the distance between the two being about three miles.
[154] The treasury will next send the papers to the foreign office, and ask instructions. In the meanwhile the foreign minister will have received the affidavits and dispatch inclosing them from the *consul, and will likewise bring or send them to the foreign office. The secretary of state for foreign affairs immediately directs them to be transmitted to the law-officers for their opinion. This is done by writing a letter addressed to the three law-officers, and requesting their opinion upon the papers at their earliest convenience. This letter is taken to the senior law-officer, either to his chambers or to the court in which he may be, or sometimes to his private residence; he, when he has read and considered the papers, either sends them on to his colleague next in order of precedence, (by whom, in that case, they are transmitted to the third,) or makes an appointment for a meeting to deliberate on the subject, in the mean time retaining the papers in his own hands. When all the law-officers have had the opportunity of sufficiently considering the papers, they consider, in consultation together, the draught report, (prepared usually, as previously stated, by the Queen’s advocate, and a letter is drawn up, fair copied, and signed by them, containing their opinion. This letter is sent to the foreign office, and the secretary of state is guided by it in the reply which he gives to the treasury and foreign minister.