With no statutory control placed on them, the district attorneys began their existence in 1789 as relatively autonomous legal officers. The Secretaries of State, Treasury, and War, because of litigation relevant to their Departments, maintained relations with the district attorneys, and Leonard White implies in his study that the Secretary of State maintained some degree of overall supervision in the early years of the Government.55 It was not until 1820, however, that Congressional action was taken to establish control over their activities.

Following the War of 1812, there was a great need for some method of recovering money and property due the United States. In keeping with a trend toward decentralization, Congress bypassed the Attorney General and created an inferior officer within the Treasury Department "to direct and superintend" such suits. The district attorneys were to be the grass roots agents actually to conduct the suits, and, as directed by Section Seven of the Act, they were to be controlled by the new Agent of the Treasury (3 U.S. Stat. 592):

"And be it further enacted, That the attorneys of the United States, for the several judicial districts of the United States, in the prosecution of all suits in the same, in the name and for the benefit of the United States, shall conform to such directions and instructions, touching the same, as shall, from time to time, be given to them, respectively, by the said agent of the treasury."

The Agent of the Treasury was, however, an accountant, not a lawyer. His superintendence of the district attorneys was less than successful, and when Andrew Jackson took office in 1829, he was "forcibly struck with the large amount of public money which appears to be outstanding.' ", 56 In his first annual message, December 8, 1829, President Jackson recommended that the legal duties of the Agent be transferred to the Attorney General, asserting that

"The professional skill of the Attorney-General, employed in directing the conduct of marshals and district attorneys, would hasten the collection of debts now in suit and hereafter save much to the government. It might be further extended to the superintendence of all criminal proceedings for offenses against the United States." 57

99 58

Jackson further asserted that the Attorney General should "be placed on the same footing in all respects as the heads of the other Departments." In response to this bold recommendation, a bill was introduced in the Senate to create a Law Department, headed by the Attorney General and vested with the power "to superintend all suits in which the United States was a party." Unfortunately, Senator Daniel Webster was adamantly opposed to the bill, and successfully countered with his own substitute measure which would leave the Attorney General as he was and vest the duties of the Agent of the Treasury in a new officer, Solicitor of the Treasury, who was to be learned in the law.59 Section Five of Webster's bill, which was signed into law on May 29, 1830, gave the Solicitor of the Treasury "power to instruct the district attorneys. in all matters and proceedings, appertaining to suits in which the United States is a party. . . (4 U.S. Stat. 414). The legal administration of the United States was now schizophrenic, and, worse yet, a precedent had been established. By Act of July 2, 1836 (5 U.S. Stat. 80), the district attorneys were instructed to obey the directions of the auditor for the Post Office in prosecution of suits involving that Department. Other departments were granted similar officers, each with authority to instruct the district attorneys to certain spheres of limitation. Although President James K. Polk recommended, and Congress considered, another bill for the creation of a Law Department in 1845, the proposal failed of passage, and decentralization of the Government's legal affairs continued to characterize the period prior to the Civil War.60

In spite of the articulate pleadings of Presidents, Attorneys General, and friends of the Attorney Generalship, Congress consistently refused during the ministration in the United States. The Congress was not reluctant, however, to extend the breadth and depth of the duties of the Attorney General and between 1789 and 1861 he was assigned many additional legal and administrative chores, including: the grant of patents (1 U.S. Stat. 109); counsel

Footnotes at end of article.

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.

65

"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,

66

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.

99 67

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.

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.

10 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.

16 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.

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

26 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.

3 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.]

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.

58 Key op. cit., p. 178.

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

64 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.

67 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.1

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.

2

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

2 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.