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This chapter discusses a case of intense public interest in which two journalists refused to answer questions asked of them in the witness-box. As a result, they were sent to prison. This chapter explains whether they were guilty of contempt of court or not. A preliminary point arose as to the relevancy of the question. A witness is only bound to answer a relevant question, not an irrelevant one. The cases, heard together, were Attorney-General v Mulholland; Attorney-General v Foster. That case made some journalists very angry. The New Statesman published an article by one of them against the judges to which the Daily Mirror retorted with a nice piece of satire. The Mirror recognised that it is the duty of a judge to administer the law as the law stands, and not as some would like it to be.

The process of contempt of court is designed to secure that every person has a fair trial. It is a procedure by which the court condemns any conduct which tends to prejudice a fair trial. The present tendency is to say that the process should be left in the hands of the Attorney-General: that he is the person who should decide whether it should be invóked or not. It is no doubt proper for any complaint to be laid before the Attorney-General so that he may, if he thinks fit, institute proceedings for contempt. But it should not be exclusively in his hands. Some cases wear a political complexion. The Attorney-General may be reluctant to take proceedings for fear of repercussions affecting his party. So the courts should be able to take steps at the instance of anyone who has a sufficient interest in the matter.

This chapter discusses the “classic” experiment with the regulation of substance abuse culminated in the provision in the Eighteenth Amendment. It illustrates the problem in the case of Gonzales v. Raich (2005), which assesses the power of the State of California to authorize, in its Compassionate Use Act of 1996, private access to marijuana for medical purposes, especially in order to relieve persistent excruciating pain. It notes that California, which had been (in 1913) one of the first States to restrict the use of marijuana, is now one of at least nine States that have attempted to authorize its use pursuant to the supervision of doctors. It further notes that the Attorney General of the United States challenged the authority of California to disregard what, it was argued by the Attorney General, was the intent and reach of an Act of Congress prohibiting the private possession and use of marijuana.

This chapter acts as a bridge between the consideration of Benjamin’s two separate legal careers; first in the United States and thereafter in England. Its initial focus is on the political, legal, and constitutional positions he adopted in the US Senate on the pivotal and connected issues of the future of slavery and southern secession. With the crystallisation of the latter it outlines how he sided with the Confederacy, became a close confidant of President Jefferson Davis, and served throughout the Civil War in his Cabinet; first as Attorney General, then as Secretary of War, and finally as Secretary of State. It concludes by tracing how, upon the disintegration of the Confederate government in the spring of 1865, Benjamin evaded capture by Union forces, made a daring escape to the Bahamas and sought sanctuary in the United Kingdom.

Lincoln acknowledged the importance of the second act in a number of instances in the weeks after its passage. He and Attorney General Edward Bates chose not to implement the law vigorously. The second act proved important before it became law as a threat of change and as a symbol to both slaves and Southerners of what the government could do if it wished to reconstruct the South. There are a number of reasons why the Second Confiscation Act was an imperfect instrument. Congress's expanded role during the war was new and unexpected. Bates's administration of the laws was honest, sincere and careful; it lacked any conviction they were just or useful laws. The problems of implementing confiscation also involved the roles of the military and Treasury Department.

The military commanders and troops encountered confiscable property before any other government officials and, through martial law, could have prevented transfers of property titles. Attorney General Bates, with Lincoln's support, also opposed military confiscation except as related to slavery. Bates's concern over military interference involving confiscation, the amount of property the military confiscated under either act was not large. Butler's interest in confiscating property particularly that of prominent rebels, increased after the second act became law. The military used confiscation to justify the destruction or seizure of other forms of rebel property as they moved into the South. The second act's most significant impact on Southern property involved the military's changed view of slavery and contrabands from July 1862. Slaves could not be freed under the second act unless a court adjudicated the issue. What the second act did was support the changing views on how to conduct the war.

The Supreme Court liberally interpreted the First and Second Confiscation Acts. It granted Congress the benefit of the doubt on jurisdictional and procedural questions and accepted the constitutional argument for confiscation, thereby permitting the acts as broad a scope as their advocates could have desired. These interpretations failed to increase the effectiveness of the two acts, since all but a few were decided after President Andrew Johnson and Attorney General James Speed had ceased enforcing the acts. The court concluded that Congress intended “prize and capture” to have the same meaning as “seizure” in the Second Confiscation Act, demonstrating its willingness to accept the broad aims of both acts. The courts permitted a wide jurisdiction for in rem proceedings against all types of property seized and, for the most part, generously interpreted Congress's intent even when its language had not been clear or appropriate to the task.

The difficulty of identifying and defining a foreign act of State would probably be less aggravating if an established meaning could be attributed to the British act of State. This, unfortunately, is not the case. The consequence is that even the meaning of the British act of State is obscure, the more so, as very justifiably Lord Wilberforce said that the doctrine of the act of State ‘cannot be stated in terms of a principle, but develops from case to case; it has perhaps the disadvantage that it includes within itself two different conceptions or rules’. It is submitted that the phrase indeed carries two, perhaps three, entirely different meanings and that as a result of a confusing argument presented on behalf of the Crown in Attorney-General v. Nissan, the opinions delivered by their lordships make difficult reading and the present status and scope of the two branches of the doctrine cannot easily be unravelled.

This chapter asks how legal advice is co-ordinated and controlled. It begins with a discussion of the Law Officers, prosecutors, and civil litigation. In considering how the Law Officers act to give content and force to ideas of legality within the executive, it is best to distinguish between their functions in relation to criminal law and prosecutions and their functions as the government's legal advisers. In addition, it examines in detail the advisory work of the Law Officers, particularly dealing with how far (if at all) it furnishes that governmental view of legality which forms the elusive object of this inquiry. The focus is placed on the Attorney-General, but the position of the Lord Advocate often differs in thought-provoking ways, and the chapter also draws attention to those differences. It also describes the Cabinet Office co-ordination in legal matters and the co-ordination within the framework of the government legal service.

The facts, circumstances, and events which lie at the root of foreign affairs and their conduct by the Executive have conveniently been described as facts of State. These are facts which are peculiarly within the cognisance of the Executive. For this reason, at any rate in so far as they are within the scope of the United Kingdom's Executive, they can be proved only in a special manner, namely by a certificate issued by the Foreign and Commonwealth Office or by a statement made to the court by the Attorney-General rather than by other documentary or oral evidence. The idea underlying this practice is the familiar one: in matters relating to foreign affairs the judiciary and the Executive should speak with one voice. The scope of prerogative power is discussed, covering territory; state of war, belligerency, and neutrality; civil war or insurgency, immunity, abolition of a state, and government of a recognized state.

Questions about the desirable extent of political accountability for the actions of those who are in charge of the machinery of justice, and in particular, the mechanisms of prosecution and law enforcement are examined in this chapter. The author begins by exploring the independence experienced by the Attorney-General in exercising his function and the relation between Parliamentary and judicial control. With regards to the relation between the Home Secretary and law enforcement, the author illustrates that the Home Secretary has full authority and executive accountability on law enforcement to many and logistical matters. As for the responsibility for national security, the Prime Minister and Home Secretary together, are executively accountable for the detailed operations carried out by the Security Service.

This chapter describes how Attorney General Robert F. Kennedy called attention to the situation in Prince Edward. “We may observe with much sadness and irony that, outside of Africa, south of the Sahara, where education is still a difficult challenge, the only places on earth known not to provide free public education are Communist China, North Vietnam, Sarawak, Singapore, British Honduras—and Prince Edward County, Virginia,” Kennedy lamented. The attorney general's hard-won recognition of the gravity of the situation was one of the few public federal acknowledgments of the constitutional crisis in Southside Virginia. Aside from an unsuccessful Justice Department attempt to intervene in the case in April 1961, the federal government largely adopted a hands-off approach to Prince Edward, counseling patience, restraint, and faith in the judicial system.

This chapter addresses constitutional questions that arose in the Middle District of Florida since 2000. The new millennium saw many constitutional disputes reach the Middle District Court. Subjects ranging from nude-dancing to expressions of religiosity to the right to die are addressed. Post September 11 security measures were put in place and the constitutionality of some (such as pat downs at Tampa Bay Buccaneer football games) were tested. Florida’s continued population growth, immigration patterns, and demographic shifts spurred challenges to existing voting methods at the local level. In several counties the growing Hispanic populations prompted class actions against counties, charging that the at-large election system for county commissioners diluted Hispanics’ voting power and violated the 1965 Voting Rights Act. The U. S Justice Department often joined these suits and an extensive discussion of an Osceola County case is included. Next the chapter turns to the right to die case of Terri Schaivo. Finally the chapter concludes with the troubled tenure of U.S. Attorney General Alberto Gonzales and its effect on the Middle District’s U.S. Attorney’s office.

Despite the passage of the new Voting Rights Act, the Holmes County registrar continued using arbitrary tests to deny blacks the right to register to vote. When the registrar ridiculed schoolteacher Bernice Montgomery and challenged her to recite the U.S. constitution he was shocked when she returned. Montgomery recited the entire U.S. constitution in front of the registrar and other courthouse employees and was allowed to register. Movement leaders began a petition campaign and filed affidavits requesting federal registrars to come and set up a voter registration office in the county. U.S. Attorney General Katzenbach sent federal registrars who arrived on November 8, 1965. In seven weeks, 2,100 Holmes blacks were registered, bringing the total to 2,800. ASCS elections were held, with mail-in ballots allowed, and ten blacks were elected. McGee's Café, a local hangout, is described.

Chapter 3 examines the alien enemy hearings, exploring the question of what process is due enemy aliens through legal constitutional theories concerning aliens’ rights. After comparing the alien enemy hearings to deportation proceedings, this chapter documents debates over what constitutional rights under the Fifth and Fourteenth Amendments endure in wartime and their applicability to the form of procedure afforded enemy aliens. Through discussion of case files, this chapter follows several interned Italians from their arrest, through their hearings and course of internment. For most internees, the Justice Department’s attempts, under the direction of Attorney General Francis Biddle, to infuse greater due process into the system came too late to save internees from feeling despondent over not being able to prove their innocence and potential to be good American citizens.

What function do federal prosecutors play in the modern political system, and how has this role changed over time? In this chapter, we explore the historical evolution of federal prosecutors and the DOJ (and its predecessors) and review the organization of the modern DOJ. We provide evidence that politics and the administration of federal justice have always been tightly intertwined. Moreover, the enlargement of federal law since the Civil War has brought with it the an increase in the size of the federal prosecutorial machine, the DOJ, and the role of the U.S. Attorney General. Using data from the DOJ, we illustrate the growth of the federal prosecutorial machine and discuss its ramifications for the role of the U.S. Attorney in the modern political system.

This chapter focuses on the dialogue that takes place between the Israeli Supreme Court and the Attorney General’s Office, particularly the use the Court makes of dialogue with attorneys who appear before the Court on the State’s behalf. The intensive and intimate dialogue that the Supreme Court conducts with these attorneys is quite exceptional. It is doubtful whether any parallel may be found in other legal systems. As the chapter demonstrates, this mechanism enables the Court to influence decision-making processes in the Attorney General’s Office within a short time, as well as the application of Court judgments and policymaking in national security matters, without necessarily adjudicating that a policy is unlawful. A specific section of this chapter is dedicated to the way the Court utilized this dialogue to better oversee Shin Bet investigations, including in particular the discovery obligations of the prosecution over the collection of probative intelligence.

This chapter evaluates the constitutional framework of the United Kingdom, revealing a disturbing new settlement of State power. In particular, it hones in on the ‘Westminster Model’ of government which advertises a strict separation of powers supposedly insulating judges from direct executive influence. An altogether different reality emanating from the archival trove of intergovernmental files is found; one which challenges the grundnorm of judicial independence embedded within the Westminster model of governance. Although Executive dominance of the judiciary runs contrary to basic texts and beliefs, this chapter lays out an alternative perspective which implicates the senior judiciary in subterranean policymaking that has led to the steady erosion of procedural due process. It examines where the Civil Service fits into this picture, and draws attention to its servants’ inherent shortcomings as ‘bureaucrats of the law’ having assumed responsibility in large part for the body of sub-standard work distributed under the misnomer: ‘Judges’’ Rules. It explains how, on the critical issue of an individual’s vulnerability when confronted by police power, civil servants, tasked with furthering the ‘public interest’, were far more adept at bolstering ‘police interests’, with backing from the then Head of the Judiciary (Lord Chancellor) and his Law Officers (the Attorney-General and Solicitor-General). By documenting key historical events that impacted upon the criminally suspected or accused, awareness of which has been muted or unknown, this Chapter explains how the doctrine of the Separation of Powers is contravened and the principle of judicial independence muddied to the point of non-recognition.

This chapter explores three periods in the development of the relationship between U.S. Attorneys (USAs) and the Department of Justice. The first case study considers the executive branch’s use of USAs in attempts to rein in racial violence during Reconstruction. The second case study centers on the savings and loan crisis of the late 1980s and highlights the efforts of national principals to focus federal prosecutors on politically salient crimes. The final case study examines the USA firing scandal of 2006, an ultimately failed attempt by the George W. Bush administration to control USAs. Throughout, we emphasize the ways in which centralized control of the USAs has evolved over time.