61

ing treaty commissioners (1 U.S. Stat. 523); the compilation and publication of laws (3 U.S. Stat. 129); advising the Solicitor of the Treaty (4 U.S. Stat. 414); the adjudication of claims under treaties with foreign nations (9 U.S. Stat. 80); the taking of the census (9 U.S. Stat. 402); and the institution of proceedings for the condemnation of property used in insurrection (12 U.S. Stat. 319). As discussed above, the acquisition of these important duties contributed to, and reflected, the growing stature of the office of the Attorney General, and in 1853 this was recognized by increasing his salary to $8,000, the same amount paid the heads of the departments (10 U.S. Stat. 212). With these duties the Attorney General was clearly the chief legal officer of the Government. But, without control of the district attorneys-which was diffused among various inferior officers, including his main rival, the Solicitor of the Treasury-the chief legal office of the United States was not singly held and did not have the necessary authority for a coherent administration of national law. It took a crisis to put coherency, consistency, and continuity into the legal administration of the United States.

The advent of the Civil War in 1861 quickly brought chaos to the Government's legal forces. As Sewall Key noted:

"No more than three or four months were necessary to bring glaringly to the public attention the incongruity of having district attorneys working individually, and at times divergently, without direction from a centralized head....

The exigency prompted Congress to act, and on August 2, 1861, a bill was signed which charged the Attorney General "with the general superintendence and direction of the attorneys and marshals of all the districts in the United States" (12 U.S. Stat. 285). Thus, what Randolph had sought seventy years earlier was finally codified, and the Attorney Generalship of the United States was now endowed with statutory authority to unify the administration of justice.

Congress, however, took only four days to shatter the unity which it had just established. On August 6, 1861, President Lincoln signed an explanatory act (12 U.S. Stat. 327) which provided that the duties of the Solicitor of the Treasury were not affected by the new statute! Thus, the Attorney General had explicit control over the district attorneys, and the Solicitor of the Treasury had explicit control over the district attorneys. As the war progressed, litigation flooded the Federal courts. Rather than provide a central system that would unite the legal efforts of the Government, Congress created more independent legal officers. At the close of the Civil War the Federal court dockets seemed hopelessly overloaded. The district attorneys were receiving instructions from diverse legal officers, and there was no consistency in legal opinions. Fortunately, relief was on the way.

63

By December of 1867, three different Congressional committees were considering means "for more direct coordination and control of litigation and legal advice in the government." The impeachment trial of President Andrew Johnson and, subsequently, the exigencies of reconstruction forced postponement of any action. The overflowing court dockets and the multiplicity of conflicting legal opinions were not mitigated, however, during the interim, and by 1870 Senator Trumbull of Illinois. Representative Lawrence of Ohio, and Representative Jenckes of Rhode Island were gathering support for a Law Department. On February 25, 1870, Representative Jenckes reported from the House Committee on Retrenchment a bill to create a Department of Justice. With only perfunctory opposition, Jenckes' bill was enacted and, on June 22, 1870, signed by President Grant.

"An Act to Establish the Department of Justice" (16 U.S. Stat. 162) vested the Attorney General, as head of the new Department, with general authority over the legal affairs of the Government. Section Three provided that the law officers of the several departments "shall exercise their functions under the supervision and control of the head of the Department of Justice," and Section Sixteen stated that "the Attorney-General shall have supervision of the conduct and proceedings of the various attorneys for the United States in the respective judicial districts." The single, national nature of the Attorney Generalship was further enforced by the provisions of Section Five: "And the Attorney-General may, whenever he deems it for the interest of

Footnotes at end of article.

the United States, conduct and argue any case in which the government is interested, in any court of the United States, or may require the solicitorgeneral or any officer of his Department to do so."

As Dr. Albert Langeluttig points out in a study of the Department of Justice, the provisions of the Act of 1870 "were calculated to make him [the Attorney General] the administrative head of the law officers of the national government and to give him effective control of its law business.” ** Not only did the Act make the Attorney General the chief law officer of the Government, but it also made him an administrator. The latter result, rather than the former, carried the most significance for the evolution of the nature of the Attorney Generalship.

The Attorneys General had always been lawyers of noted ability—indeed, Randolph, Wirt, and Cushing were lawyers of outstanding abilities. This legal proficiency was vital when the Attorney Generalship was an individual endeavor. Under the Act of 1870, however, the Attorney Generalship was no longer a one-man enterprise. Section Two provided a Solicitor General who was to be, in the words of the father of the bill,

a man of sufficient learning, ability and experience that he can be sent to New Orleans or to New York, or into any court wherever the Government has any interest in litigation, and there present the case of the United States as it should be presented. . . .

Section Two also allowed two "assistants of the Attorney General," each to be learned in the law. The Attorney Generalship, as embodied in the Department of Justice, was well endowed with legal talent.

By Section Three of the Act, the Attorney General was to supervise the functions of the various law officers in the several departments. By Section Eight he was "to make all necessary rules and regulations for the government of said Department of Justice, and for the management and distribution of its business." By Section Twelve he was to make an annual report of the Department's activities to Congress. By Section Fifteen he was to supervise "the accounts of the district attorneys, marshals, clerks, and other officers of the courts of the United States. By Section Sixteen he was to supervise the conduct and proceedings of the district attorneys. By Section Eighteen he was to publish the opinions of the various law officers of the Government. It is thus apparent that the intention of Congress was for the Attorney General to oversee and coordinate the legal activities of the United States Government-in short, he was to be what the Act suggested in Section One: the administrative head of an executive Department.

This is not to say that it was no longer necessary for the Attorney General to be a competent lawyer. As the individual ultimately responsible for the legal business of the United States, it was imperative that his legal faculties be acute. After 1870, however, his position required adeptness in the business of administration as well as adeptness in law.

The Attorney General's new role of administrator affected his old role of legal advisor to the Government. He had always been a member of the President's Cabinet, but, because he was something of a governmental wanderer, he had not possessed the same status as other members. As head of one of the great executive departments, however, the Attorney General became a man of Cabinet rank, as well as a Cabinet member. He could also be more valuable than before as an advisor, because he was now afforded an overall view of the Government's legal business, and he had authority to affect that business.

THE NATURE OF THE ATTORNEY GENERALSHIP

The following four roles comprise the essential nature of the Attorney Generalship as codified in "An Act to establish the Department of Justice"a nature distilled from centuries of experience in both England and the United States: (1) national public attorney; (2) legal advisor to the President and the heads of the Executive Department; (3) administrator of the Government's legal business; and, (4) member of the President's Cabinet. Furthermore, it is within these four roles, codified in 1870, that the Attorney General of today continues to operate.

Footnotes at end of article.

These roles have certainly undergone a great deal of expansion since 1870. For example, the Civil Rights Division, the Federal Bureau of Investigation, the Bureau of Prisons, the Immigration and Naturalization Service, and the Antitrust Division-to name a few-did not exist when the Department of Justice wsa created, but they are merely additional duties for the Attorney General in his role as administrator of the Government's legal business, and they do not add to or alter the nature of his office. Similarly, the Attorneys General of the nineteenth century frequently appeared personally in court, whereas today's Attorney General, as the national public attorney, plays largely a symbolic role-appearing personally before the Supreme Court only when the gravity of the issue to be decided is of exceptional importance to the United States. In this case, the change in the Attorney General's role is one of degree; the Attorney General appears less frequently, but his appearances have greater significance. Either way, he remains the national public attorney.

Thus, the Act of 1870 marks the culmination of the evolutionary process through which the Attorney Generalship of the United States developed its essential nature, and subsequent developments affecting the office have merely been variations of that nature.

FOOTNOTES

1 Bellot, Hugh H. L. The Origin of the Attorney-General. The Law Quarterly Review, October, 1909, vol. XXV, no. 100 p. 400.

2 Ibid., p. 403.

3 Idem.

4 Key, Sewall. The Legal Work of the Federal Government. Virginia Law Review, December, 1938, vol. XXV, no. 2, p. 166.

Co.

5 Bellot, op. cit., p. 410.

• Idem.

7 Key, op. cit., p. 167.

8 Holdsworth, William S. A History of English Law [3d ed.] London, Matheun and Ltd., 1937, vol. VI, p. 471.

Ibid., p. 470.

1 Ibid., pp. 464-465.

11 Ibid., pp. 465-466.

12 Key, op. cit., p. 169.

13 Morse, Lewis W. Historical Outline and Bibliography of Attorneys General Reports and Opinions. Law Library Journal, April, 1937, vol. 30, no. 2, p. 226.

14 Morton-Kyshe, James William. The Law and Privileges Relating to Colonial Attorneys-General. London, Stevens and Haynes, Bell Yard, Temple Bar, Law Publishers, 1000 pp. 2-3.

15 Key, op. cit., p. 171.

18 Cummings, Homer S. and McFarland, Carl. Federal Justice. New York, The Macmillan Company, 1957, p. 12; also, Norton-Kyshe, op. cit., pp. 4-5.

17 Cummings, op. cit., p. 9.

18 Ibid., pp.9-10.

19 Ibid., p. 11.

20 U.S. Library of Congress. Journals of the Continental Congress, 1774-1789. Gaillard Hunt, ed. Washington, U.S. Government Printing Office 1912, vol. XIX, p. 75.

21 Ibid., pp. 155-156.

22 Ibid., p. 190.

23 Key, op. cit., see footnote 31, pp. 173-174.

24 Morison, Samuel Eliot and Commager, Henry Steele. The Growth of the American Republic. New York, Oxford University Press, 1962, vol. 1, p. 257.

25 Journals of the Continental Congress, vol. XXXII, p. 74.

20 Morison, op. cit., p. 282.

27 United States Constitution Sesquicentennial Commission. History of the Formation of the Union Under the Constitution. Washington U.S. Government Printing Office, 1943, p. 29.

28 Ibid., p. 30.

29 NOTE. All of the Constitutional quotations in this study are from The Constitution of the United States of America, Literal Print, as included in, U.S. Congress. Senate. The Constitution of the United States of America: Analysis and Interpretation. Washington, U.S. Government Printing Office, 1964. pp. 35-53. (Sen. Doc. No. 39, 88th Congress, 1st Session).

30 Farrand, Max. The Records of the Federal Convention of 1787. New Haven, Yale University Press, 1911, vol. 1, p. 125.

31 U.S. Constitution Sesquicentennial Commission, op. cit., p. 333.

32 U.S. Congress. Senate. Journal of the First Session of The Senate. Washington, printed by Gales and Seaton 1820, p. 10.

33 Ibid., p. 11.

34 Warren, Charles. New Lights on the History of the Federal Judiciary Act of 1789. Howard Law Review, November, 1923, vol. XXXVII, no. 1, see footnote 22, p. 57. 35 Ibid., p. 50.

36 U.S. Congress. Senate. Journal, op. cit., p. 34.

37 Warren, op. cit., p. 109.

35 U.S. Congress. Senate. Journal, op. cit., p. 42 [NOTE: The legislative history of the judicial bill in the Senate is taken from pages 34 to 42 of the Journal].

39 NOTE. None of the sources at the disposal of this writer indicate exactly when or why the Supreme Court appointment provision was removed from the Senate bill. 40 Warren, op. cit., see footnote 137 p. 109.

41 NOTE. The legislative history of the judicial bill in the House of Representatives is taken from, U.S. Constitution Sesquicentennial Commission, op. cit., pp. 360-363.

42 White, Leonard D. The Federalists. New York, The Macmillan Company, 1948, p. 166. 43 Norton-Kyshe, op. cit., p. 103.

44 White, op. cit., p. 164–165.

45 U.S. Congress. American State Papers, 1789-1809: Miscellaneous, vol. I. Washington, printed by Gales and Seaton, 1834 p. 46.

46 Ibid., p. 45.

47 White, op. cit., p. 168. [Note: see American State Papers, op. cit., 46.]

48 Cummings, op. cit., p. 78.

49 Idem.

50 American State Papers, 1801-1823: Miscellaneous, vol. II, p. 418.

51 Ibid., p. 419.

52 Cummings, Homer. Selected Papers of Homer Cummings. Carl Brent Swisher, ed. New York, Charles Scribner's Sons, 1939 p. 4.

53 U.S. Attorney General. Official Opinions of the Attorneys General of the United States: Vol. VI. C. C. Andrews, ed. Washington, published by Robert Farnham, 1856, pp. 354-355.

54 White, op. cit., p. 168.

55 Ibid., p. 167.

56 Richardson, James D., comp. Messages and Papers of the Presidents. New York, Bureau of National Literature, Inc., 1897, vol. III, p. 1016.

57 Ibid., p. 1017.

59 Key op. cit., p. 178.

50 Cummings, Federal Justice, op. cit., pp. 145-146.

Go Ibid., pp. 147-149.

61 Ibid., pp. 153–154.

Key, op. cit., p. 180.

63 Cummings, Federal Justice, op. cit., p. 221.

G4 Ibid., p. 222.

65 Ibid., p. 224.

66 Langeluttig, Albert. The Department of Justice of the United States. Baltimore, The Johns Hopkins Press, 1927, p. 18.

e Ibid., p. 11.

[From the Library of Congress, Congressional Research Service, Nov. 14, 1972]

CIRCUMSTANCES SURROUNDING THE CREATION OF THE OFFICE OF THE ATTORNEY GENERAL AND THE JUSTICE DEPARTMENT

(Prepared by Arnold C. Relyea, Analyst, American National Government and General Research Division)

Authority for the existence of the Cabinet or the Executive Departments is only indirectly specified in the Constitution where, in Article II, Section 2, it is stated that the Chief Executive "may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." It therefore fell to the First Congress to establish the initial administrative departments. This task was undertaken on May 19, 1789, when Elias Boudinot, a New Jersey Federalist, proposed that the House consider the establishment of a finance office. Debate ensued as to what departments should be initially created and what their ranking should be. Largely due to the arguments of James Madison, departments of foreign affairs, treasury, and war were authorized and the seniority of Cabinet officers was thus determined.'

The position of a legal counsel for the Federal Government did not arise in these initial discussions concerning the establishment of the departments. The Office of the Attorney General was conceived in 1789 as one which should be cloaked in judicious impartiality. The Attorney General was welcomed into the Cabinet in order that he might impart legal counsel to the President and the departmental secretaries. He did not, however, command a department or administer subordinate officials attached to his own Office. He had no control over district attorneys who, except for presidential direction, were autonomous. It was not until 1853 that the Attorney General, through a salary increase, was afforded a status comparable to that of other Cabinet officers. He was the chief legal counsel for the Chief Executive,

1 Stephen Horn The Cabinet and Congress (New York: Columbia University Press, 1960), pp. 6-7.

Albert George Langeluttig. The Department of Justice of the United States (Baltimore: The Johns Hopkins Press, 1927), p. 2.

3 Henry Barrett Learned, "The Attorney-General and the Cabinet," Political Science Quarterly, XXIV (1909), p. 456.

This Solon-like role even extended to the Legislative Branch of Government. Until 1820 the Attorney General, on occasion, gave advice to the House on matters pending before them. It was also at this time that Attorney General William Wirt reminded his colleagues within the Executive Branch that his role placed him outside political considerations. When sought by the Secretary of the Navy for advice, he declared: "As my official duty is confined to the giving of my opinion on questions of law, I consider myself as having nothing to do with the settlement of fact . . . [emphasis in original]."5 Not only is the Attorney General the chief of law officers within our government, but he is also an agent for the Federal courts. Indeed, the fact that his office is set forth in the Judiciary Act of 1789 (1. U.S. Stat. L. 73) indicates that, to a large extent, his role, as opposed to those of other officers of the Executive, is one of law. As set forth in Chapter XX, Section 35 of the Act, the only qualification which the holder of the position must meet is that he be "a meet person, learned in the law." Ultimately, it is the Senate which, by confirmation of the President's nominee, attests to the qualifications of an individual to be Attorney General. On eleven occasions (involving eight nominees) the Senate has rejected nominees for Cabinetlevel positions and three of these instances have involved nominees for Attorney General."

On June 22, 1870, the Office of Attorney General was transformed into the Justice Department. The necessity for creating an enlarged legal counsel office grew out of the hearings of the Joint Committee on Retrenchments, created by Congress in 1867 to examine war expenditures. The committee scrutinized the legal work carried on within the Federal Government and took testimony in December of 1867 from Attorney General Henry Stanbery. While other pressing and sensational matters of state captured public attention, the matter of enlarging the law administration received continuous consideration during sessions of the Thirty-ninth, Fortieth, and Forty-first Congresses.

"A chief object of the act of 1870 was to make it possible to create a staff sufficiently large to transact the law business of the government in all parts of the country. If assistant counsel were employed, these extra men were to be designated either as assistant district attorneys or as assistants to the attorney-general; and so, holding commissions as such, they could be made strictly responsible to the attorney-general for the performance of duties."

997

The expansion of the Attorney General's staff and elevation of his office to departmental-Cabinet status did not alter the legal officer status of his position. With the establishment of the Justice Department in 1870 (16 Stat. 162) there appears to have been a presumption that the Attorney General needed staff asssitance and that law administration within the Federal Government required consolidation. The fact that this consolidation occurred under the Attorney General testifies to the prevailing viewpoint that this was an official whose first concern must be for the law. His functions were not affected, but other agents of government were brought under his authority in order that they might operate with the same spirit of respect for the law which was imbued in the office of the Attorney General. Thus the Attorney General remained a legal counsel for the President, the Cabinet, and the agencies of the Executive Branch; served as the chief of the law officers of the Federal Government; and acted as an agent for the Federal Courts.

The foregoing paragraphs seek to indicate the circumstances and underlying thought surrounding the creation of the Office of the Attorney General and the Department of Justice. To some extent research of this type is hampered by the lack of ready resources. We have attempted to provide a concise and accurate portrayal of these matters based upon the best available materials.

▲ Ibid., p. 466.

5 Ibid., p. 451.

These rejections include: Henry Stanbery nominated by President Johnson and defeated by a 11-29 vote on June 2, 1868; Charles B. Warren nominated by President Coolidge and defeated by a 39-41 vote on March 10, 1925 and defeated a second time on March 16, 1925 by a 39-46 vote.

Learned, op. cit., p. 62.