ATTORNEY, in English law, in its widest sense, any substi tute or agent appointed to act in "the turn, stead or place of an other." Attorneys are of two kinds, attorneys-in-fact and attor neys-at-law. The former is simply an agent, the extent of whose capacity to act is bounded only by the powers embodied in his authority, his power of attorney. The latter was a officer, conducting legal proceedings on behalf of others, known as his clients, and attached to the supreme courts of common law at Westminster. Attorneys-at-law corresponded to the solicitors of the courts of chancery and the proctors of the admiralty, ec clesiastical, probate and divorce courts. Since the passing of the Judicature Act of 1873, however, the designation "attorney" has become obsolete in England, all persons admitted as solicitors, attorneys or proctors of an English court being henceforth called "solicitors of the supreme court" (see SOLICITOR).
In the United States an attorney-at-law exercises all the func tions distributed in England between barristers, attorneys and solicitors, and his full title is "attorney and counsellor-at-law." When acting in a court of admiralty he is styled "proctor" or "advocate." In courts of equity or chancery in many States he is styled "solicitor." Formerly, in some States, there existed a grade among lawyers of attorneys-at-law, which was inferior to that of counsellor-at-law, and in colonial times New Jersey es tablished a higher rank still—that of sergeant-at-law. Now the term of attorney-at-law is precisely equivalent to that of lawyer, yet many consider a lawyer to be an attorney, particularly pro ficient in his profession. Attorneys are licensed to practice as the result of acts of the State legislatures, or by the rules of the highest court of the state. This is done ordinarily by examination by state or local boards, named by the court. In all States but Indiana, a preliminary education in a law school or under the di rection of a practising attorney, or both, is required. In most States a preliminary high school education is required, and in a few of the States, part or all of a college education is required. New Jersey has a later separate examination for counsellor. At torneys from other States may do a limited practice under comity in most States, and similarly one may be admitted to practice in most States if he has previously practiced for a required number of years in another State under what is known as "comity." In the courts of the United States, admission is governed by par ticular rules, the Supreme Court of the United States requiring practice of three years in a State, and admission for the same length of time at the bar of the highest court of that State. In almost all States aliens are not admitted, most requiring actual residence in the State as well as American citizenship. Women may practise in the United States Supreme Court, having been given this privilege in 1879, and in substantially all of the State courts.
An attorney is an officer of the court which admits him to prac tice, and he is subject to its discipline. He is liable to his client in damages for failure to exercise ordinary care and skill, and he can bring action for the value of his services. He has a lien on his client's papers, and usually on any judgment in favour of his client to secure the payment of his fees. (See BAR.) ATTORNEY-GENERAL, in England, the chief law officer appointed to manage all the legal affairs and suits in which the Crown is interested. He is appointed by letters-patent author izing him to hold office during the sovereign's pleasure. He is ex officio the leader of the bar. Although we do not meet with the title attornatus regis until I253, we may be sure that the office had already been long in existence. We are told by Bracton that the king had his serjeants-at-law in every county to prosecute pleas of the Crown in his name. These king's serjeants may be identified with the attornati regis, the number of whom varied from time to time. Eventually, in 1472, William Husee was ap pointed attorney-general of England with power to appoint dep uties to act for him in any court of record. Henceforth the office is held singly. He has precedence in all the courts, and in the House of Lords he has precedence of the lord advocate, even in Scottish appeals. He is a necessary party to all proceedings affect ing the Crown. The attorney-general and the solicitor-general (q.v.) are always members of the House of Commons (except for temporary difficulties in obtaining a seat) and of the Ministry, being selected from the Party in power, and their advice is at the disposal of the Government, and of each department of the Gov ernment, while in the House of Commons they defend the legality of ministerial action if it is called in question. Prior to 1895 no restriction was placed on the private practice of the law officers, but since that date this privilege has been withdrawn, and the salary of the attorney-general fixed at £7,000 a year with such fees as he may receive for litigious business on behalf of the Crown. During recent administrations he has had a seat in the cabinet and been made a privy councillor. The Crown has also as a legal adviser an attorney-general in Northern Ireland. In Scot land he is called lord advocate (q.v.). There are attorneys-general for the duchies of Cornwall and Lancaster. There is also an attorney-general or his equivalent in almost all the British col onies, and his duties are very similar to those of the same officer in England. In the self-governing colonies he is appointed by the administration of the colony, and in the Crown colonies by royal warrant under the signet and sign-manual.
The functions of the attorney-general are to-day of great con stitutional importance and a number of recent statutes, casting upon him new duties, have invested his office with a continually increasing responsibility. He is not only the legal representative of the Crown in the courts but the parens patriae or guardian of public interests. In English law "the public" as a juristic concep tion does not exist, the Government of the country is not a cor poration, the term "State" is merely a political expression, and even the term "Crown" is only a convenient impersonal ex pression for the king. The rights of the public in general are therefore protected by the attorney-general as the representative of the king in whom the "public" rights are vested. The result is that whenever acts are done tending to the injury of the public in general, and to the injury of no one in particular, the only person who can set the law in motion is the attorney-general. If a plaintiff wishes to put in suit a public wrong, he can only do so at the instance of the attorney-general. Our law here goes on the principle that "what is everybody's business is nobody's business" —it is the business only of the attorney-general. A plaintiff can only sue by himself in respect of a public tort where the inter ference with the public is such that some private right of his is, at the same time, interfered with, e.g., where the obstruction of a highway by a local authority is such that the owner of premises abutting upon the highway is specially affected by the interference with his private right of access. But so far as the public is wronged by such obstruction of the highway, the wrong can only be redressed at the instance of the attorney-general who in such a case would apply for an injunction. The attorney-general has an absolute discretion as to whether he will intervene or not (see L.C.C. v. Attorney-General, 1902, A.C. 165, which may be re garded as the leading case on the subject). On the other hand, the attorney-general, once he intervenes, is just as much subject to the control of the courts as every other suitor (R. v. Prosser 18 L. J. Ch. 35) and the courts are not bound to grant what he asks ; they can prevent him from prosecuting a proceeding which is simply vexatious and has no legal object. He enjoys pre rogatives as the representative of the Crown when he appears in the courts, such as the right to reply, trial at bar, change of venue (see PREROGATIVE, also PETITION OF RIGHT), but it is char acteristic of the independence of the British courts towards the Ex ecutive that a law officer's opinion has no more force than the opinion of any other counsel.
Just as a public wrong, affecting no one in particular, can only be restrained at the instance of the attorney-general, so a public duty, the performance of which affects no one in particular, can only be enforced at the instance of the attorney-general, who in such cases is the proper party to apply for a writ of mandamus. Proceedings by criminal information, opposed as they are to the usual criminal procedure of indictment, are reserved for cases of public importance and are therefore regarded as at the suit of the attorney-general, even when the initiative is taken by a private individual, i.e., a "relator" or "informer." The most familiar example of such proceedings is the publication of a seditious libel; in such a case the attorney-general himself files an ex officio information. So also, in the case of charities of a public char acter, the attorney-general represents all the persons who are an object of the charity, and they are thus plaintiffs through him.
To enumerate all the cases—such as peerage claims, lunacy proceedings, legitimacy declarations—in which the attorney-gen eral may or must be a party would be beyond the limits of this article. It is enough to say that in all such cases the explanation of his participation is the same : the Crown is regarded as an inter ested party.
Of late years duties of great public importance have been cast upon the attorney-general by statute. The most recent example, and in some ways the most important, is the Trade Disputes and Trade Unions Act of 1927, by s. 7 of which the attorney-general is empowered to apply for an injunction to restrain the applica tion of trade union funds in contravention of that section of the act which declares a "general strike" illegal. This, in effect, is to enable the attorney-general to interfere in such a case for the pro tection of the State. Certain Acts—such as the Official Secrets Act of 1911 (see SECRET)-provide that no prosecution for offences thereunder shall be initiated except by or with the consent of the attorney-general. Such provisions may be regarded as interposing the shield of the attorney-general between the police authorities and persons against whom they might institute proceedings, and it is regrettable that the protection thus afforded by the Act of 191I has been cut down by the Official Secrets Act of 1920 which only requires the consent of the attorney-general to proceedings in cases under the Act where they are dealt with "summarily," in other words without a jury. The consent of the attorney-general is also required before an appellant whose con viction and sentence has been affirmed by the court of criminal appeal (q.v.) can appeal further to the House of Lords, and such consent will only be granted where some important point of law is involved. Here also the attorney-general has an absolute dis cretion in the grant, or refusal, of his certificate.
The office of attorney-general is therefore unique in character. He is a minister of the Crown but he also exercises, particularly in the consideration of Petitions of Right, a judicial discretion. He is the representative of the interests of the Crown and at the same time the guardian of the rights of the public, and the two may not always coincide. It is easy to conceive a conflict of duties and on this ground it has been contended that the recent innovation of giving him cabinet rank is a bad one as calculated to impair his independence as the guardian of the public rights. See Holdsworth, Hist. Eng. Law vi. 457 ; J. H. Morgan, "Remedies v. the Crown" ; Bellot, "The Origin of the Attorney-General," Law Quarterly Review xxviii. p. 400. There is an admirable exposition of the attorney-general's duties by Sir Douglas Hogg, now Lord Hailsham, in Hansard's Parliamentary Debates (Commons) vol. 207 (No. 75) cols. (J. H. Mo.) The attorney-general of the United States is the chief law officer of the Government and head of the Department of Justice, one of the executive departments. He is appointed by the president, and, like the heads of the other executive departments, is a member of the cabinet. Since 1886, in case of death, resignation, removal or disability of both the president and the vice-president, he is in line of succession to the Presidency, after the secretary of State, secretary of the Treasury and secretary of War.
The office of attorney-general has existed since 1789, when the Government, under the Constitution, was organized. It was created by the Judiciary Act of 1789. That Act divided the United States into 13 judicial districts, established courts therein, defined their jurisdiction, and also the appellate jurisdiction of the Supreme Court. It provided that in each district there should be an attorney for the United States, who should have charge of civil and criminal actions in his district, and finally that there should be appointed an attorney-general of the United States who was to be "a meet per son learned in the law," whose duty it should be to represent the United States in the Supreme Court and who should be the legal adviser of the president and of the heads of the departments "touching any matters that may concern their Departments." The attorney-general, under that act, was not an executive officer of the Government. His duties, as defined by the statute, made him merely an adviser of the executive branch and an advocate in the Supreme Court, and the measure of his compensation, $1,500 a year, was based upon the belief that his duties would take but little of his time, leaving him free to enjoy the professional emolu ments which it was thought the prestige of his position would bring him. Until about the year 1814, the attorney-general did not reside at the seat of Government. In that year, Attorney-General Pinckney, one of the great lawyers of his day, resigned because President Madison insisted that he take up his residence in Wash ington. From the beginning, however, the office was regarded as one of great dignity and importance, and with the growth of the United States and the development of its governmental functions statutes were enacted from time to time which increased its duties and responsibilities, and gradually brought it to a parity with the heads of the executive departments. In 1870 it was organized by law as the Department of Justice.
The Department of Justice is an executive department and the attorney-general as its head has plenary control over the law busi ness of the Government, all its other law officers being responsi ble to him, though some of the bureaux and commissions, such as the Bureau of Internal Revenue, the Federal Trade Commission and the Interstate Commerce Commission have lawyers on their staffs who are not officers or employes of the Department of Jus tice and who, in the performance of their duties within their respective departments, are not under the direction of the attorney general. In the language of the U.S. Supreme Court he "has charge of the institution and conduct of the pleas of the United States and of the litigation which is necessary to establish the rights of the Government." The duties of the attorney-general are primarily those of a lawyer, but as head of the department much of his time and energy must now be devoted to administra tion. The personnel of his immediate staff at the seat of Govern ment numbers between 700 and Boo. His chief assistant is the solicitor-general, who by law exercises the powers of the attorney general in the latter's absence and to whom is assigned charge of the Government's litigation in the Supreme Court, being about one-third of the entire business of that court. The solicitor-general also decides whether review in the higher courts shall be sought in cases which the Government has lost in courts below. This duty of passing upon questions of appeal and therein seeing to it that the Government's interests are protected, and all reasonable effort made to procure a correct construction of the law, at the same time avoiding imposing unwarranted burdens upon the appellate courts and unnecessary expense to litigants, is one of grave respon sibility, calling for the exercise of sound, discriminating judgment.
There are an assistant to the attorney-general and seven assistant attorneys-general, among whom supervision of the work of the department is apportioned ; one assistant, in charge of cases arising under the customs laws, has his office in the city of New York. There are several departmental solicitors who, as members of the attorney-general's staff, deal with legal matters arising in their respective departments. The Federal district attorneys, ap pointed by the executive for the ninety-one United States district courts, are in effect deputies of the attorney-general.
Through the superintendent of prisons the attorney-general controls all Federal prisons and prisoners. The number of such prisoners in Federal and State prisons in 1928 was about 16,00o.
The judicial districts have increased from the original 13 to 91 with 91 U.S. district courts and 136 U.S. district judges. There are nine judicial circuits with nine circuit courts of appeals and 34 U.S. circuit judges. There is a court of general jurisdiction and a court of appeals in the District of Columbia. In 18S5 there was established a court of claims, a tribunal in which claims against the United States could be judicially heard and determined. It would not be within the scope of this article to set forth this jurisdiction in detail, but it may be said to include all causes of action based upon contract, express or implied, with the Government. As a result of the World War the number of cases of this kind has greatly increased and one of the heavy duties of the attorney-gen eral and his staff is the defence of these suits. At the present time there are pending in that court over 2,200 suits involving claims against the Government in amount exceeding $1,800,000,000. At the close of the last fiscal year there were pending in the district courts over 16,00o civil suits in which the U.S. Government was directly interested and more than 35,000 criminal prosecutions, although during that year more than 19,000 civil suits and 67,000 criminal cases had been terminated.
The administrative control and supervision of the offices of U.S. marshals, and in some respects, of the offices of clerks of U.S. courts, is in the attorney-general. The entire personnel of the De partment of Justice is about 5,100. All petitions to the president for pardon, commutation of sentence, or other form of executive clemency are investigated by an official of the department called the pardon attorney and the facts relating to each application are ascertained for the guidance of the attorney-general in making his recommendation to the president. About 1,200 petitions of this kind are considered each year. All petitions of Federal prisoners for release on parole are considered and approved or disapproved by the attorney-general. About 4,300 applications of this kind are considered each year. The attorney-general also makes recommen dations to the president respecting appointments to all Federal judicial positions including the U.S. Supreme Court.
As already pointed out, from the beginning the attorney-general has been the legal adviser of the president and of the heads of the executive departments with respect to the questions arising in the administration of their departments. For many years pursuant to statute his formal opinions have been published from time to time in book-form, and are now contained in 34 volumes. They are binding upon and control the action of the executive officers of the Government, are frequently cited by the courts, and regarded as of high authority. Prepared under statutory sanction by the chief law officer of the Government for the guidance of the heads of departments charged with the administration of the statutes enacted by Congress, they have the status of important State papers entitled to the highest respect upon all questions of the powers and duties of the executive branch of the Government.
There is also under each State Government an officer usually called the attorney-general, whose relation to the Government of his State is similar to that of the U.S. attorney-general to the Federal Government. He is usually elected by the people at the same time and for the same term as the governor. For an accurate description of the duties of the attorney-general of any particular State an examination of the Constitution and laws of that State is necessary. (J. G. S.)