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MARKER
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administrative marker by the George Bush Presidential
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Record Group/Collection:
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Collection/Office of Origin:
Speechwriting, White House Office of
Series:
Speech File Backup Files
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OA/ID Number:
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Folder ID Number:
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Folder Title:
200th Anniversary of the Attorney General 9/22/89 [OA 6346] [1]
Stack:
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26
19
3
6
(McNally/Simon)
September 12, 1989, 6:00 p.m.
Draft Two (B:AG)
PRESIDENTIAL REMARKS: 200TH ANNIV. OF THE ATTORNEY GENERAL
U.S. DEPARTMENT OF JUSTICE
FRIDAY, SEPTEMBER 22, 1989 -- 9:00 A.M.
Good morning. And thank you all. And thanks especially to
my friend Dick Thornburgh, for those kind words and for the
outstanding he is doing for this Department, and for America.
All of America's history is traced from austere beginnings,
from the spare and difficult lives of the first colonists, to the
hardships of the revolutionary army, to a small and meagerly
funded federal government.
The American adventure started down the path of history with
little in the way of any concrete resources: Too few funds. Too
little manpower. Too many dangers. And too little assurance of
success. It's been quite a journey.
Today, Dick Thornburgh may think his efforts are plagued by
budget complications. George Washington's Attorney General
didn't have any budget complications. He simply wasn't given any
budget. [[PAUSE]]
And for years Congress never criticized our A.G.'s about
conflicts of interest. Until 1853, Congress paid the A.G. a
lower salary because he was expected to make most of his money
from private practice. Extend that plan to all 4,000 lawyers
here and the problem today would be the budget surplus. [PAUSE]
In fact, the early A.G.'s often did not even live in the
capital, but did business at home by mail, only coming in
2
toappear before the Supreme Court. In 1814, President Madison
insisted that Attorney General William Pinkney move from
Baltimore to Washington as a condition of his continued
employment. Pinkney refused and resigned. It's a good thing he
never saw the new financial disclosure forms. [[PAUSE]]
Things didn't really begin booming at Justice until 1818,
when Congress voted to double the size of the A.G.'s office -- by
giving him money to hire his first clerk. [[PAUSE]]
Four years later, Congress relented and also gave the two of
them an actual office in which to work. [[PAUSE]] In another
milestone about twenty years after that, Congress set aside some
money so that the office could get its first law books. [PAUSE]
Austere beginnings, yes. But part of the genius of America
is that, well, we've never really minded having the odds that
way. Again and again, we've succeeded against the odds because
the one element that's never been lacking is what the world has
come to know as the American spirit.
The American spirit means initiative. Commitment. Hard
work. Fairness. And it means faith -- faith in God, faith in
our ideals, and faith that, no matter the challenge or the
difficulties, justice will prevail in the end.
And it is justice that we celebrate today -- equal justice
for all Americans.
Every President since Washington has depended on his A.G.'s
counsel when the big decisions had to be made. Andrew Johnson's
A.G., James Speed, lived up to his name by writing the shortest
3
A.G.'s Opinion on record, authorizing Lincoln's assassins to be
tried by a military court. It contained just 28 words -- and
might serve as a model for clarity of writing.
A generation later, President Taft, a former S.G., went to
the other extreme. During the pure food laws debate on the legal
definition of "whiskey," the Justice Department produced a brief
numbering 1,242 pages. Taft read it in its entirety -- a
presidential record I hope never to break. [[PAUSE]] Taft
didn't resolve the debate until after the A.G. and the Secretary
of Agriculture spent two days at the White House consumed in oral
argument. And this was 50 years before "Tastes great" -- "Less
Filling."
Presidents have particularly turned to their Attorney
Generals in times of crisis. It was Robert Johnson's legal
justification of the "bases for destroyers" deal that enabled FDR
to rush 50 surplus warships to Churchill at a critical time in
the Battle for the Atlantic. In 1957, William Rogers advised Ike
on his constitutional authority to send federal troops to enforce
court-ordered desegregation in Little Rock, Arkansas.
These were bold and effective steps, and a tradition of
which you can all be proud. The destroyers helped preserve
America's freedom. And the desegregation effort helped this
nation to honor its promise of equality for all men and women.
The A.G. today continues the honorable tradition of serving
as "America's lawyer." Today, the Justice Department stands at
the forefront of protecting American's rights and of ensuring
4
fairness throughout society. In matters of business and
antitrust, environment and civil rights -- matters which strike
at the very core of our sense of right in a nation of free men
and women -- your 200 year history stands as a testament to
America's spirit, and to the continuing pursuit of a dream.
The great jurist Benjamin Cardozo said: "The process of
justice is never finished, but reproduces itself, generation
after generation, in ever-changing forms, and today, as in the
past, it calls for the bravest and the best."
These days more than ever, we're relying on the bravest and
the best throughout this Department -- the Marshals, FBI, DEA,
and the Bureau of Prisons, in addition to our A.U.S.A.'s and
others in the Criminal Division -- to lead the war against the
scourge of cocaine and the violent crime it spawns.
In fighting this battle, you know you have my interest and
support, and the support of the American people.
You've seen our support in the anti-crime bill we sent to
Congress in May. It sends a clear, unmistakable and tough
message -- that those who bring blood and thunder to our streets
will be brought to justice. I said it on television earlier this
month, and I want to emphasize it here today:
We're changing the rules. Criminals have got to learn that
if they sell drugs, they will be caught. And once caught, they
will be prosecuted. And once convicted, they will do time.
We're counting on you to get this message out, to make it
work in practice. And we're prepared to match rhetoric with
5
resources, backing you up with a plan that calls for more agents
and more prosecutors -- the largest increase in A.U.S.A.'s in
history -- and that will almost double the capacity of federal
prisons.
We are in this battle for the long haul; we have joined this
war for the duration. I have great respect for the leadership of
the Attorney General and the Department of Justice in waging this
battle, and for the professionalism and commitment that you on
the front lines have brought to this effort.
As we stand here today, commemorating 200 years of the
Office of the Attorney General, we should look back with pride on
the justice we have achieved as a nation. From modest
beginnings you stand today as a powerful force for justice in
America, and as a powerful example for justice in the world.
I salute this great office, its rich heritage, and all the
fine men and women who serve justice under its leadership today.
You are indeed the "bravest and the best."
Congratulations on this anniversary. Godspeed you in your
service. And God bless the United States.
#
#
#
Robert F. Kennedy:
Thirten Days
"Those hours in the Cabinet Room
THE HOSE HOURS in the Cabinet Room that Sat-
urday afternoon in October could never be erased from
the minds of any of us. We saw as never before the mean-
ing and responsibility involved in the power of the
United States, the power of the President, the responsi-
bility we had to people around the globe who had never
heard of us, who had never heard of our country or the
men sitting in that room determining their fate, making
a decision which would influence whether they would
live or die.
We won't attack tomorrow, the President said.
We shall try again.
The State Department submitted a draft of a let-
ter for response from President Kennedy to Khrushchev.
It answered the arguments made in Khrushchev's latest
letter, maintaining that we could not remove the mis-
siles from Turkey and that no trade could be made.
I disagreed with the content and tenor of the let-
ter. I suggested, and was supported by Ted Sorensen
and others, that we ignore the latest Khrushchev letter
101
Thirteen Days
and respond to his earlier letter's proposal, as refined in
that I
the offer made to John Scali, that the Soviet missiles and
offens
offensive weapons would be removed from Cuba under
tems
UN inspection and verification if, on its side, the United
opera
States would agree with the rest of the Western Hemi-
sphere not to invade Cuba.
my re
There were arguments back and forth. There
permi
were sharp disagreements. Everyone was tense; some
with 1
were already near exhaustion; all were weighted down
tive-
with concern and worry. President Kennedy was by far
Cuba
the calmest. Finally, when we almost seemed unable to
of Oc
communicate with one another, he suggested with a
of yo
note of some exasperation that-inasmuch as I felt so
I und
strongly that the State Department's various efforts to
respond were not satisfactory-Ted Sorensen and I
syste
should leave the meeting and go into his office and com-
obser
pose an alternative response, so he could then decide be-
able :
tween the two. The two of us left and, sitting in the Pres-
weap
ident's office, wrote a draft. Forty-five minutes later, we
took it to him and to the whole group. He worked on it,
tablis
refined it, had it typed, and signed it.
Unite
It accepted Khrushchev's "offer":
tion
"Dear Mr. Chairman:
quara
"I have read your letter of October 26th with
suran
great care and welcomed the statement of your desire to
that
seek a prompt solution to the problem. The first thing
prepa
102
arthur Schdesing,
828
A THOUSAND DAYS
Dr.
THE GREAT TURNING
829
down U-2s, we would have to react — but not necessarily at once.
Again he insisted that the Russians be given time to consider what
suggestion may, indeed, have been more relevant than anyone could
they were doing before action and counteraction became irrevocable.
have known. For, as Henry Pachter has argued,* the so-called sec-
There remained the Khrushchev letters, and the Executive Com-
ond letter, from internal evidence, appears to have been initiated
mittee turned to them again with bafflement and something close to
as the immediate follow-on of Khrushchev's reply to U Thant; it
despair. It was noted that Defense Minister Rodion Malinovsky had
began with a reference to Kennedy's reply to U Thant on Thursday
mentioned Cuba and Turkey together as early as Tuesday, and that
and took no note of events on Friday. Moreover, its institutional
Red Star, the army paper, had coupled them again on Friday. Could
tone suggested that it was written in the Foreign Office. Might
the military have taken over in Moscow? Rusk called in Scali and
it not have been drafted in Moscow on Thursday and Friday with
asked him to find out anything he could from his Soviet contact.
an eye to Saturday morning release in New York? Then the so-
Scali, fearful that he had been used to deceive his own country, up-
called first letter, which reflected the movement of events well
braided Fomin, accusing him of a double cross. The Russian said
beyond the U Thant proposal and which was clearly written by
miserably that there must havè been a cable delay, that the Embassy
Khrushchev himself, may well have been composed late Friday
was waiting word from Khrushchev at any moment. Scali brought
night (Moscow time) and transmitted immediately to Kennedy
this report immediately to the President and the Executive Commit-
while the 'second' letter was deep in the bureaucratic pipelines.
tee at the White House (where Pierre Salinger nearly had heart
Knowing heads of state and foreign office bureaucracies, one could
failure when, in the midst of the rigorous security precautions of the
take anything as possible.
week, he suddenly saw the ABC reporter sitting at the door of the
At any rate, on October 27 Kennedy now wrote Khrushchev, "I
President's inner office).
have read your letter of October 26th with great care and welcomed
In the meantime a new crisis: another U-2 on a routine air-
the statement of your desire to seek a prompt solution." As soon as
sampling mission from Alaska to the North Pole had gone off course
work stopped on the missile bases and the offensive weapons were
and was over the Soviet Union; it had already attracted the attention
rendered inoperable under UN supervision, Kennedy continued,
of Soviet fighters and was radioing Alaska for help. Would the
he would be ready to negotiate a settlement along the lines Khru-
Russians view this as a final reconnaissance in preparation for nu-
shchev had proposed. Then, in a sentence profoundly expressive of
clear attack? What if they decided to strike first? Roger Hilsman
his desire to retrieve something out of crisis, he added: "If your let-
brought the frightening news to the President. There was a moment
ter signifies that you are prepared to discuss a detente affecting
of absolute grimness. Then Kennedy, with a brief laugh, said,
NATO and the Warsaw Pact, we are quite prepared to consider
"There is always some so-and-so who doesn't get the word." (The
with our allies any useful proposals."
plane returned safely; but perhaps Khrushchev did interpret the
And so the message shot inscrutably into the night. Robert Ken-
flight exactly as Hilsman feared; perhaps this too, along with the
nedy carried a copy that evening to the Soviet Ambassador, saying
invasion force massing in Florida and an unauthorized statement
grimly that, unless we received assurances in twenty-four hours,
on Friday by the State Department press officer threatening "further
the United States would take military action by Tuesday. No one
action" if work continued on the bases, reinforced his determina-
knew which Khrushchev letter superseded the other; no one knew
tion to bring the crisis to an end.)
whether Khrushchev was even still in power. "We all agreed in the
Later that afternoon the Executive Committee met again. Robert
end," Robert Kennedy said afterward, "that if the Russians were
Kennedy now came up with a thought of breathtaking simplicity
ready to go to nuclear war over Cuba, they were ready to go to
and ingenuity: why not ignore the second Khrushchev message and
nuclear war, and that was that. So we might as well have the show-
reply to the first? forget Saturday and concentrate on Friday? This
In his brilliant essay on the missile crisis Collision Course (New York, 1963),
67-68.
(McNally/Simon)
September 12, 1989, 6:00 p.m.
Draft Two (B:AG)
PRESIDENTIAL REMARKS: 200TH ANNIV. OF THE ATTORNEY GENERAL
U.S. DEPARTMENT OF JUSTICE
FRIDAY, SEPTEMBER 22, 1989 -- 9:00 A.M.
633-2107 Dave Runtile X
before
Good morning. And thank you all. And thanks especially to
+
my friend Dick Thornburgh, for those kind words and for the
outstanding he is doing for this Department, and for America.
All of America's history is traced from austere beginnings,
from the spare and difficult lives of the first colonists, to the
hardships of the revolutionary army, to a small and meagerly
funded federal government.
The American adventure started down the path of history with
little in the way of any concrete resources: Too few funds. Too
little manpower. Too many dangers. And too little assurance of
success. It's been quite a journey.
The DoJ: its
Today, Dick Thornburgh may think his efforts are plagued by
history & functions
budget complications. George + Washington's Attorney General +
+
+
James-Smith
Easby
Smith
+
+
didn't have any budget complications. He simply wasn't given any
1904
budget. [[PAUSE]]
0.6
Easty Smith And for years Congress 4 never + criticized our of A.G.'s about
-
conflicts of interest. Until 1853, Congress paid the A.G. a
to
to
F°
4
lower salary because he was expected to make most of his money
P.S
lost
from private practice. Extend that plan to all 4,000 lawyers
here and the problem today would be the budget surplus. [PAUSE]
In fact, the early A.G.'s often did not + even live in the
4
Easly
Smith
you
+
it
capital, but did business at home by mail, only coming in
2
toappear before the Supreme Court. In 1814, President Madison
Easty
insisted that Attorney General William Pinkney move from
Baltimore to Washington as a condition of his continued
employment. Pinkney refused and resigned. It's a good thing he
never saw the new financial disclosure forms. [[PAUSE]]
Things didn't really begin booming at Justice until 1818,
when Congress voted to double the size of the A.G.'s office -- by
giving him money to hire his first clerk. [[PAUSE]]
Easly
Smith
Four years later, Congress relented and also gave the two of
P. 10
them an actual office in which to work. [[PAUSE]] In another
The Dept. of
nine
about twenty years after that, Congress set aside some
P. 9 money so that the office could get its first law books. [PAUSE]
Austere beginnings, yes. But part of the genius of America
is that, well, we've never really minded having the odds that
way. Again and again, we've succeeded against the odds because
the one element that's never been lacking is what the world has
come to know as the American spirit.
The American spirit means initiative. Commitment. Hard
work. Fairness. And it means faith -- faith in God, faith in
our ideals, and faith that, no matter the challenge or the
difficulties, justice will prevail in the end.
And it is justice that we celebrate today -- equal justice
for all Americans.
Every President since Washington has depended on his A.G. 's
counsel when the big decisions had to be made. Andrew Johnson's
A.G., James Speed, lived up to his name by writing the shortest
Lutha Huston
p. 26
3
A.G. 's Opinion on record, authorizing Lincoln's assassins to be
tried by a military court. It contained just 28 words -- and
might serve as a model for clarity of writing.
A generation later, President Taft, a former S.G., went to
the other extreme. During the pure food laws debate on the legal
Federal
Justice:
definition of "whiskey," the Justice Department produced a brief
sub milted
numbering 1,242 pages. Taft read it in its entirety -- a
Homer
presidential record I hope never to break. [[PAUSE]] Taft
didn't resolve the debate until after the A.G. and the Secretary
of Agriculture spent two days at the White House consumed in oral
argument. And this was 50 years before "Tastes great" -- "Less
Filling."
Presidents have particularly turned to their Attorney
Jackson's
Generals in times of crisis. It was Robert Johnson S legal
Luther justification of the "bases for destroyers" deal that enabled FDR
Huston
p.43-45
43-45 to rush 50 surplus warships to Churchill at a critical time in
the Battle for the Atlantic. In 1957, William Rogers advised Ike
on his constitutional authority to send federal troops to enforce
court-ordered desegregation in Little Rock, Arkansas.
These were bold and effective steps, and a tradition of
which you can all be proud. The destroyers helped preserve
America's freedom. And the desegregation effort helped this
nation to honor its promise of equality for all men and women.
The A.G. today continues the honorable tradition of serving
as "America's lawyer." Today, the Justice Department stands at
the forefront of protecting American's rights and of ensuring
4
fairness throughout society. In matters of business and
antitrust, environment and civil rights -- matters which strike
at the very core of our sense of right in a nation of free men
and women -- your 200 year history stands as a testament to
America's spirit, and to the continuing pursuit of a dream.
The great jurist Benjamin Cardozo said: "The process of
see
file
justice is never finished, but reproduces itself, generation
after generation, in ever-changing forms, and today, as in the
past, it calls for the bravest and the best."
These days more than ever, we're relying on the bravest and
the best throughout this Department -- the Marshals, FBI, DEA,
and the Bureau of Prisons, in addition to our A.U.S.A.'s and
others in the Criminal Division -- to lead the war against the
scourge of cocaine and the violent crime it spawns.
In fighting this battle, you know you have my interest and
support, and the support of the American people.
You've seen our support in the anti-crime bill we sent to
June
Congress in May, It sends a clear, unmistakable and tough
message -- that those who bring blood and thunder to our streets
oval
will be brought to justice. I said it on television earlier this
office
address
month, and I want to emphasize it here today:
9-5-89
We're changing the rules. Criminals have got to learn that
if they sell drugs, they will be caught. And once caught, they
will be prosecuted. And once convicted, they will do time.
We're counting on you to get this message out, to make it
work in practice. And we're prepared to match rhetoric with
5
resources, backing you up with a plan that calls for more agents
and more prosecutors -- the largest increase in A.U.S.A.'s in
Excess atty.
boost
history -- and that will almost double the capacity of federal
5-15-89 prisons. by almost 80%.
fact sheet.
We are in this battle for the long haul; we have joined this
war for the duration. I have great respect for the leadership of
the Attorney General and the Department of Justice in waging this
battle, and for the professionalism and commitment that you on
the front lines have brought to this effort.
As we stand here today, commemorating 200 years of the
Office of the Attorney General, we should look back with pride on
the justice we have achieved as a nation. From modest
beginnings you stand today as a powerful force for justice in
America, and as a powerful example for justice in the world.
I salute this great office, its rich heritage, and all the
fine men and women who serve justice under its leadership today.
You are indeed the "bravest and the best."
Congratulations on this anniversary. Godspeed you in your
service. And God bless the United States.
#
#
#
(McNally/Simon)
September 11, 1989, 6:00 p.m.
Draft One (B:AG)
PRESIDENTIAL REMARKS: 200TH ANNIV. OF THE ATTORNEY GENERAL
U.S. DEPARTMENT OF JUSTICE
WASHINGTON, D.C.
FRIDAY, SEPTEMBER 22, 1989
Good morning. And thank you -- thank you all. And thanks
especially to my friend Dick Thornburgh, for those kind words and
for the outstanding job he is doing for this Department, and for
America. And I'm also honored to be sharing the platform today
with William French Smith,
, and
...
All of America's history is traced from austere beginnings,
from the spare and difficult lives of the first colonists, to the
hardships of the revolutionary army, to a small and meagerly
funded federal government.
The American adventure started down the path of history with
little in the way of any concrete resources: Too few funds. Too
little manpower. Too many dangers. And too little assurance of
success. It's been quite a journey.
Today, Dick Thornburgh's life is plagued by budget
complications. The first Attorney General didn't have any budget
complications. He simply wasn't given any budget. [[PAUSE]]
And for years Congress never criticized our A.G.'s about
conflicts of interest. Congress paid them a lower salary because
they were expected to make most of their money from private
practice. Extend that plan to all 4,000 lawyers here and the
problem today would be the budget surplus. [[PAUSE]]
2
In fact, the early A.G.'s often did not even live in the
capital, but did business at home by mail, only coming in to
appear before the Supreme Court. In 1814, President Madison
insisted that Attorney General William Pinkney move from
Baltimore to Washington as a condition of his continued
employment. Pinkney refused and resigned. It's a good thing he
never saw the new financial disclosure forms. [[PAUSE]]
Things didn't really begin booming at Justice until 1818,
when Congress voted to double the size of the A.G.'s office -- by
providing funds for him to hire his first clerk. [[PAUSE]]
Four years later, they relented and also gave the two of
them an office in which to work. [[PAUSE]] In another milestone
about twenty years after that, Congress set aside some money so
that the office could get its first law books. [[PAUSE]]
As with any lawyer, you can understand why these early A.G's
would be reluctant to give up private practice. Mark Twain had
just finished speaking at a banquet when a future Attorney
General, the lawyer William Everts, stood up with his hands in
his pockets and remarked: "Does it not seem unusual to this
gathering that a professional humorist should really appear
funny?"
Twain got up and responded in his habitual drawl: "Does it
not also appear strange to this assembly that a lawyer should
have his hands in his own pockets?" [[PAUSE]
Because he had no department the A.G. ranked dead last,
below all other cabinet members, until just over a century ago,
3
when Congress permanently fixed his rank as 4th. Dick --
whatever cabinet rivalries you may face -- just be glad they're
not still expecting you to fetch the coffee. [[PAUSE]]
Austere beginnings, yes. But part of the genius of America
is that, well, we've never really minded having the odds that
way. Again and again, we've succeeded against the odds because
the one element that's never been lacking is what the world has
come to know as the American spirit.
The American spirit means initiative. Commitment. Hard
work. Fairness. And it means faith -- faith in God, faith in
our ideals, and faith that, no matter the challenge or the
difficulties, justice will prevail in the end.
And it is justice that we celebrate today -- equal justice
for all Americans -- as reflected in 200 years of success of the
Office of the Attorney General of the United States.
Every President since Washington has depended on his
Attorney General in times of crisis. It was Robert Johnson's
legal justification of the "bases for destroyers" deal that
enabled FDR to rush 50 surplus warships to Churchill at a
critical time in the battle for the Atlantic. In 1957, William
Rogers advised Ike on his constitutional authority to send
federal troops to enforce court-ordered desegregation in Little
Rock, Arkansas.
These were bold and effective steps, and a tradition of
which you can all be proud. The destroyers deal helped preserve
4
America's freedom. And the de-segregation effort helped this
nation to honor its promise of equality for all men and women.
The A.G. today continues the honorable tradition of serving
as "America's lawyer." From its austere beginnings, the Office
of the Attorney General has grown to lead a virtual army of
54,000 employees.
They say there were two events that caused this astounding
growth in federal lawyers. The first was our victory in World
War II, and the mantle of leadership we've worn for nearly half a
?
century as the world's largest economy and most powerful nation.
And the other was the invention of the Xerox machine. [[PAUSE]]
Not that every lawyer is necessarily verbose. Andrew
Johnson's A.G., James Speed, lived up to his name by writing the
shortest A.G.'s Opinion on record, authorizing Lincoln's
assassins to be tried by a military court. It contained just 28
?
words -- and might serve as a model for clarity of writing.
A generation later, President Taft, a former S.G., went to
the opposite extreme. During the pure food laws debate on the
true definition of "whiskey," the Justice Department produced a
brief numbering 1,242 pages. Taft read it in its entirety -- a
presidential record I hope never to break. [[PAUSE]] He only
resolved the debate after the Secretary of Agriculture and the
A.G. spent two days at the White House consumed in oral argument.
And this was 50 years before "Tastes great" -- "Less Filling." "
Today, the Justice Department stands at the forefront of
protecting American's rights and of ensuring fairness throughout
5
society. In matters of business and antitrust, environment and
civil rights -- matters which strike at the very core of our
sense of right in a nation of free men and women -- your 200 year
history stands as a testament to America's spirit, and to the
continuing pursuit of a dream.
The great jurist Benjamin Cardozo said: "The process of
justice is never finished, but reproduces itself, generation
after generation, in ever-changing forms, and today, as in the
past, it calls for the bravest and the best."
These days more than ever, we're relying on the bravest and
the best throughout this Department -- the Marshals, FBI, DEA,
and the Bureau of Prisons, in addition to our A.U.S.A.'s and
others in the Criminal Division -- to lead the war against the
scourge of cocaine and the violent crime it spawns.
In fighting this battle, you know you have my interest and
support, and the support of the American people.
You've seen our support in the anti-crime bill we sent to
Congress in May. It sends a clear, unmistakable\and tough
message -- that those who bring blood and thunder to our streets
will be brought to justice. I said it on television earlier this
month, and I want to emphasize it here today:
We're changing the rules. Criminals have got to learn that
if they sell drugs, they will be caught. And once caught, they
will be prosecuted. And once convicted, they will do time.
We're counting on you to get this message out, to make it
work in practice. And we're prepared to match rhetoric with
6
resources, backing you up with a plan that calls for more agents
and more prosecutors -- the largest increase in A.U.S.A.'s in
history -- and that will almost double the capacity of federal
prisons.
We are in this battle for the long haul; we have joined this
war for the duration. I have great respect for the leadership of
the Attorney General and the Department of Justice in waging this
battle, and for the professionalism and commitment that you on
the front lines have brought to this effort.
As we stand here today, commemorating 200 years of the
Office of the Attorney General, we should look back with pride on
the justice we have achieved as a nation. From austere
beginnings you stand today as a powerful force for justice in
America, and as a powerful example for justice in the world.
I salute this great office, its rich heritage, and all the
fine men and women who serve justice under its leadership today.
You are indeed the bravest and the best.
Congratulations on this anniversary. Godspeed you in your
service. And God bless the United States.
#
#
#
DRAFT
All of America's history is traced from austere beginnings:
from the spare and difficult lives of the first colonists, to the
limited materials and hardship of the revolutionary army, to a
small and meagerly funded federal government. From nearly every
point of embarkation of American endeavor and enterprise we have
started on the path of history with very little in the way of the
concrete resources that such journey's demand: too few funds,
too little manpower, too many dangers, and too little assurance
for success.
1
But still we have succeeded because, despite the austerity
and shortcomings of so many of America's beginnings, the one
element that has never been lacking in our travels is what the
world has come to know as the American spirit.
A spirit that embodies initiative, commitment, hard work,
and an unflagging hope, faith and confidence that we will succeed
in the attainment of our goals -- and ultimately in the
achievement of our ideals -- no matter the size of the challenge,
the number of difficulties, or the length of the struggle.
But most importantly is our desire for justice - equal
justice - for all Americans.
- 2 -
DRAFT
And that, really, is what we celebrate today -- as it is
reflected in the 200 years of success of the Office of the United
States Attorney General.
2
3
From beginnings so austere that our first Attorney General
paid all office expenses out of his own pocket, this nation's
4-8
commitment to justice started with an idea and an ideal which has
carried it forward through our history and which, as much as any
other factor, continues to shape its efforts today.
A commitment to the idea that for a society to prosper,
justice is key. And a commitment to the ideal that for this
society, and for our hopes of achieving the grand constitutional
principles upon which our independence rests, justice must and
will prevail now and forever, for every man, woman and child who
call themselves Americans.
Lofty goals for such a meager start. But look where it has
brought us.
The Justice Department of this nation stands at the
forefront of protecting American's rights and of ensuring
fairness throughout society. In matters of business and
- 3 -
DRAFT
antitrust, in matters of civil rights, in matters of the
environment -- in matters which strike at the very core of our
sense of right and equity in a nation of free men and women --
the Justice Department, and the two hundred year history of the
Office of the Attorney General, stands as testament to American's
spirit, and pursuit of a dream.
7
11
But as past achievements have not come without long-waged
fights, neither is the present free from great and long-term
struggles as crime and the actions of those who do not share in
the ideals of this nation continue to threaten our peace and
security.. and continue to test our commitment and spirit.
Two of the biggest challenges are, of course, the difficult
and deadly battles we are waging against the pandemic scourge of
drugs and the national wave of violent crime it has precipitated.
But as we have risen to meet and surmount the challenges of
the past, so too will rise to them now -- with the commitment of
the American people, the Department of Justice, the Attorney
General and this entire Administration.
Commitment that is seen in the anti-crime bill, a bill I
have submitted to the Congress, which sends a clear,
unmistakable and tough message and says to those who spread
- 4 -
DRAFT
murder and mayhem that violent crime and the illegal use of
weapons will be punished and punished severely -- not just as a
temporary legal policy, but as a permanent national principle of
justice.
And commitment that is seen in our efforts against drugs
nationally, and internationally, as we attack every facet of the
drug trade from the drug lords of South America, to foreign money
launderers, to the dealers on the streets who deliver addiction,
despair and death to young people across this land -- attacks on
this criminal enterprise which are not designed simply to ease
the scourge of drug abuse but which are determined to eliminate
it completely.
As we stand here today, commemorating 200 years of the
Office of the Attorney General, we should look back with pride on
the justice we have achieved as a nation. Often with little more
than the simple force of our national will, we have built step
after step of a staircase that has taken us ever-higher in our
journey towards an our ideal of justice.
But as we commemorate our past, so too do we re-commit
ourselves to the future and to the work that remains to be done
in meeting the challenges to justice.
At
10
- 5 -
DRAFT
From austere beginnings we stand today as a force for
justice in America and the world -- a great and rich force which
derives its wealth from those great and committed Americans of
the past who dared to pursue a dream of justice; and from the
those same Americans of today who continue to build on that
dream.
That is the American spirit -- as it has been in the past,
as it is today, and as it will continue on into the future.
Thank you and God bless you.
(McNally/Simon)
September 11, 1989, 6:00 p.m.
Draft One (B:AG)
PRESIDENTIAL REMARKS: 200TH ANNIV. OF THE ATTORNEY GENERAL
U.S. DEPARTMENT OF JUSTICE
WASHINGTON, D.C.
FRIDAY, SEPTEMBER 22, 1989
Good morning. And thank you -- thank you all. And thanks
especially to my friend Dick Thornburgh, for those kind words and
for the outstanding job he is doing for this Department, and for
America. And I'm also honored to be sharing the platform today
with William French Smith,
/ and
...
All of America's history is traced from austere beginnings,
from the spare and difficult lives of the first colonists, to the
hardships of the revolutionary army, to a small and meagerly
funded federal government.
The American adventure started down the path of history with
little in the way of any concrete resources: Too few funds. Too
little manpower. Too many dangers. And too little assurance of
success. It's been quite a journey.
Today, Dick Thornburgh's life is plagued by budget
complications. The first Attorney General didn't have any budget
complications. He simply wasn't given any budget. [[PAUSE]]
And for years Congress never criticized our A.G.'s about
conflicts of interest. Congress paid them a lower salary because
they were expected to make most of their money from private
here
practice. Extend that plan to all 4,000 of your lawyers and the
new problem today here would be the budget surplus. [[PAUSE]]
2
In fact, the early A.G.'s often did not even live in the
capital, but did business at home by mail, only coming in to
appear before the Supreme Court. In 1814, President Madison
insisted that Attorney General William Pinkney move from
Baltimore to Washington as a condition of his continued
employment. Pinkney refused and resigned. It's a good thing he
never saw the new financial disclosure forms. [ [PAUSE] ]
Things didn't actually really begin booming at Justice until 1818,
when Congress voted to double the size of the A.G.'s office -- by
providing funds him for
permitt to hire one [PAUSE]]
his first erk.
Four years later, they relented and also gave the two of
them an office in which to work. [ [PAUSE] In another milestone
about twenty years after that, Congress set aside some money so
TWAIN
that the office could get its first law books. [ [PAUSE] ]
Because he had no department, the A.G. ranked dead last,
cabinea tener
below all other cabinet members, until just over a century ago,
mg
when Congress permanently fixed his rank as 4th. Dick -- just be
you
glad they don't still expect you to fetch the coffee. [ [PAUSE]]
Austere beginnings, yes. But part of the genius of America
is that, well, we've never really minded having the odds that
way. Again and again, we've succeeded against the odds because
the one element that's never been lacking is what the world has
come to know as the American spirit.
The American spirit means initiative. Commitment. Hard
work. Fairness. And it means faith -- faith in God, faith in
3
our ideals, and faith that, no matter the challenge or the
difficulties, justice will prevail in the end.
And it is justice that we celebrate today -- equal justice
for all Americans -- as reflected in 200 years of success of the
Office of the Attorney General of the United States.
This nation commitment to justice started with an idea and
an ideal which has carried it through our history and which, as
much as any other factor, continues to shape its efforts today.
A commitment to the idea that, for a society to prosper,
justice is key. And a commitment to the ideal that for this
society, and for our hopes of achieving the grand constitutional
principles upon which our independence rests, justice must and
will prevail for every man, woman and child who call themselves
Americans.
Lofty goals for such a meager start. But look where it has
brought us.
From its austere beginnings, the Office of the Attorney
General has grown to lead a virtual army of 54,000 employees.
They say there are two reasons for this astounding growth in
federal lawyers. The first reason is our victory in World War
II, and the mantle of leadership we've worn for nearly half a
century as the world's largest economy and most powerful nation.
And the other is the invention of the Xerox machine. [[PAUSE]]
Today, the Justice Department stands at the forefront of
protecting American's rights and of ensuring fairness throughout
society. In matters of business and antitrust, environment and
4
civil rights -- matters which strike at the very core of our
sense of right in a nation of free men and women -- your 200 year
history stands as a testament to America's spirit, and to the
continuing pursuit of a dream.
The great jurist Benjamin Cardozo said: "The process of
justice is never finished, but reproduces itself, generation
after generation, in ever-changing forms, and today, as in the
past, it calls for the bravest and the best.' "
These days more than ever, we're relying on the bravest and
the best throughout this Department -- the Marshals, FBI, DEA,
and the Bureau of Prisons, in addition to our A.U.S.A.'s and
others in the Criminal Division -- to lead the war against the
scourge of cocaine and the violent crime it spawns.
In fighting this battle, you know you have my interest and
support, and the support of the American people.
You've seen our support in the anti-crime bill we sent to
Congress in May. It sends a clear, unmistakable and tough
message -- that those who bring blood and thunder to our streets
will be brought to justice. I said it on television earlier this
month, and I want to emphasize it here today:
We're changing the rules. Criminals have got to learn that
if they sell drugs, they will be caught. And once caught, they
will be prosecuted. And once convicted, they will do time.
We're counting on you to get this message out, to make it
work in practice. And we're prepared to match rhetoric with
resources, backing you up with a plan that calls for more agents
5
and more prosecutors --- the largest increase in A.U.S.A.'s in
history -- and that will almost double the capacity of federal
prisons.
We are in this battle for the long haul; we have joined this
war for the duration. I have great respect for the leadership of
the Attorney General and the Department of Justice in waging this
battle, and for the professionalism and commitment that you on
the front lines have brought to this effort.
As we stand here today, commemorating 200 years of the
Office of the Attorney General, we should look back with pride on
the justice we have achieved as a nation. From austere
beginnings you stand today as a powerful force for justice in
America, and as a powerful example for justice in the world.
I salute this great office, its rich heritage, and all the
fine men and women who serve justice under its leadership today.
You are indeed the bravest and the best.
Congratulations on this anniversary. Godspeed you in your
service. And God bless the United States.
#
#
#
...
universally acknowledged,
yet there are certain great principles of justice, whose authority is
result. When this happens, it should serve as a stimulus for you to
-MARSHALL, (1810). John, in Fletcher V. Peck, 10 U.S. (6 Cranch) 87, 133
exert yourself to change and correct the law. The perfection of the
law ought to be your goal.
-WILSON, Will R., "A Knight in Shiny Blue Serge: Advice to Young
...
Lawyers," 40 ABAJ 686 (August, 1954), p. 687.
Why should there not be a patient confidence in the ultimate justice
...
of the people? Is there any better or equal hope in the world?
-LINCOLN, Abraham, First Inaugural.
The process of justice is never finished, but reproduces itself, genera-
tion after generation, in ever-changing forms, and today, as in the past,
...
it calls for the bravest and the best.
-CARDOZO, Benjamin N., "Law and Literature," in Selected Writ-
their regalia for rare and special occasions and settle down to the
After the day of glory and decoration the Queen's Counsel put away
ings of Benjamin Nathan Cardozo, The Choice of Tycho Brahe, edited
by Margaret E. Hall (New York: Fallon Publications, 1947), p. 417.
much modified magnificence of their working robes, silk gowns over
...
cut-away coat, small wig, plain linen "bands" at the throat. As a scheme
of decoration all this is very effective, but it is more than that. Its
solemnity has a social significance. It is a constant reminder that the
To no one will we sell, to no one will we refuse or delay, right or
administration of justice is not just another business deal but is the
justice.
which flows in a living stream from generation to generation.
highest function of the State with a continuity and a responsibility
-Magna Carta, ch. 40 (1215).
...
-COWPER, Francis, "London Letter," The New York Law Journal,
May 21, 1962, p. 4, cols. 5-6.
From bottom to top, Southern justice is white. This fact shadows the
Negro's every activity from driving a car to engaging in sexual in-
...
tercourse; from borrowing money to suing for personal injury; from
The place of justice is an hallowed place; and therefore not only the
seeking police protection to defending against criminal charges. To
bench, but the footpace and precincts and purprise thereof ought to
Southern Negroes, the courthouse is not a citadel of justice. Instead,
be preserved without scandal and corruption.
says Harvard Psychiatrist Robert Coles, who recently completed a
-BACON, Francis, Essay: Of Judicature, The Essays of Lord Bacon,
six-year study of Southern racial attitudes, the courthouse is "the
Including His Moral and Historical Works (London, New York: Frede-
symbol of where the policemen, the sheriffs, the judges, the juries, the
rick Warne and Co., 1888), p. 99.
voting registrar, the registrar of deeds and the whole structure of so-
ciety is weighted against Negroes. They are afraid of this building."
...
Segregated justice, adds a Southern Regional Council report, "pro-
vokes desperation among Negroes and shakes their faith in democ-
If we are to keep our democracy, there must be one commandment:
racy."
Thou shalt not ration justice.
-Essay, "Breaching the White Wall of Southern Justice." Time Maga-
-HAND, Learned, "Thou Shalt Not Ration Justice," address before the
zine, April 15, 1966, p. 46.
4, p. 5 (1951).
Legal Aid Society of New York, Feb. 16, 1951, 9 Brief Case, No.
...
The justice of the law is, therefore, a "statistical" justice, an average
...
justice, a kind of rationed goods preserving all from want but sufficient
for no one.
Regardless of your theological views, or lack of them, as a lawyer, a
-SILBERG, Moshe, Associate Justice, Supreme Court of Israel, "Law
quest for justice should be your own private approach to religion. As
and Morals in Jewish Jurisprudence," 75 Harv. L. Rev. 306, 316 (1961).
a lawyer, it ought to hurt for the law to reach what seems an unjust
...
DOJ
KF
5107
.E27
DOJ
c.11
KP
5107
E2")
THE
copy"
T: DEPARTMENT OF JUSTICE
ITS HISTORY AND FUNCTIONS
BY
JAMES S. EASBY-SMITH
W. H. LOWDERMILK & COMPANY,
WASHINGTON, D. C.
1904.
4
40-2903
THE DEPARTMENT OF JUSTICE; ITS HISTORY AND
FUNCTIONS.
-
CHAPTER I.
THE ATTORNEY-GENERAL'S OFFICE.
The Department of Justice was not created and organized
until 1870. but the office of Attorney-General was one of the
four cabinet offices, so-called, which were created in 1789,
and around this office grew up a legal department which was
known until 1870 as the Attorney-General's Office.
The First Congress of the United States met at New York
on March 4. 1789, and its first session was devoted entirely
to the enactment of laws to provide the machinery for the
permanent federal government contemplated by the Con-
stitution; the most important of which were a revenue law,
a law for registering and clearing vessels and for regulating the
coasting trade; the laws establishing the army and the execu-
tive departments; and the famous Judiciary Act. The Depart-
ment of Foreign Affairs, with a Secretary of Foreign Affairs
(which designations were, by the act of September 15th of the
same year, changed to Department of State and Secretary of
State) was created by the act of July 27, 1789; the War
Department, with a Secretary, by the act of August 7th;
and the Treasury Department, with a Secretary, by the act
of September 2d of the same year.
The Third Article of the Constitution provided that: The
judicial power of the United States shall be vested in one
Supreme Court. and in such inferior courts as the Congress
may, from time to time, ordain and establish"-etc. A bill
y es
pten
provi
and
The Department of Fustice.
thirt
dist
to carry into effect these constitutional provisions by estab-
nd I
lishing the judicial courts of the United States was passed by
tes
Congress and received the President's approval on September
e of
24, 1789. This law, known as the Judiciary Act, provided
follo
for a Supreme Court to consist of a Chief Justice and five
Associate Justices; divided the United States into thirteen
earn
districts and three circuits; created the circuit and district
Stat
courts and defined and prescribed their jurisdiction and pro-
of 1
cedure; provided for the appointment of United States dis-
uct
trict attorneys and marshals; and finally created the office
sh:
of Attorney-General and prescribed his duties in the follow-
que
ing concluding paragraph
Unit
And there shall also be appointed a meet person, learned
epar
in the law, to act as attorney-general for the United States,
epar
who shall be sworn or affirmed to a faithful execution of his
rvic
office; whose duty it shall be to prosecute and conduct all
suits in the Supreme Court in which the United States shall
thu
be concerned, and to give his advice and opinion upon ques-
efect
tions of law when required by the President of the United
edie
States, or when requested by the heads of any of the depart-
ments, touching any matters that may concern their depart-
suit
ments, and shall receive such compensation for his services
wa:
as shall by law be provided."
on
0
Thus was the office of Attorney-General created, and thus
ance
the duties of the office defined. Among the many defects
of
of the law, which soon became apparent but were not remedied
the
for many years, was the failure to give the Attorney-General
and
any control or supervision of the district attorneys or of suits
ated
affecting the United States in the inferior courts. Nor was
Dart-
any sort of an establishment provided for the transaction of
his business, either in the way of quarters or clerical assistance.
The office was the fourth cabinet office in the order of
creation, the offices of Postmaster-General, Secretary of the
Navy, Secretary of the Interior, Secretary of Agriculture and
Secretary of Commerce and Labor being subsequently created
in the order named. But not being at the head of a depart-
Its History and Functions.
estab-
bassed by
ment until the creation of the Department of Justice 80
September
the Attorney-General was ranked below all the other cabinet
provided
officers until his proper rank as fourth in the Cabinet was
and five
restored by the act of January 19, 1886, which provides, in
thirteen
case of the removal, death, resignation or inability both of
district
the President and Vice-President, that the duties of the office
and pro-
of President shall be performed by one or the other of the
States dis-
cabinet officers in the order named in the act.
The office
Congress had fixed the annual salaries of the heads of the
follow-
departments as follows: for the Secretaries of State and the
Treasury $3,500 each, for the Secretary of War $3,000; but
learned
by the act of September 23, 1789, the salary of the Attorney-
States,
General was fixed at $1,500. The Senate had provided $2,000,
an of his
but this was reduced by the House of Representatives.
Muct all
The action of Congress in providing this very small salary
Haves shall
was due to the arguments that the duties of the Attorney-
ques-
General would be very light, that he could and would engage
United
in private practice, and that the prestige of the office would
depart-
be so great that it would be well worth the while of any law-
depart-
yer to accept the office with only a nominal compensation.
ervices
On September 26; 1789, the President appointed Edmund
Randolph of Virginia Attorney-General. Washington had de-
d thus
clared that he preferred Randolph as Attorney-General to
efects
any person with whom he was acquainted, and it is probable
nedied
that he was better fitted than any of his contemporaries for
General
the task of organizing the legal department of the new gov-
suits
ernment. He had been Attorney-General of Virginia and
was
a member of the Constitutional Convention, and had taken
on of
a leading part in that body in the discussions concerning
ance.
the judiciary provisions of the Constitution.
of
Randolph arrived in New York, then the seat of govern-
the
ment, in February, 1790. At its first two sessions there was
and
no business before the Supreme Court, but there was an
eated
abundance for the Attorney-General, and from the very be-
part-
ginning his duties were arduous and physically laborious.
As the first Attorney-General he had to shape his own office,
The Department of Fustice;
adapo the constitutional provisions and the Judiciary Act
to their work, study out and decide the vexatious questions
relating to the line of demarkation between the jurisdiction
of the federal and state governments and their respective
courts, and constantly give opinions and advice both written
and oral to the President and to the heads of the departments,
concerning internal affairs; and to the Secretary of State upon
questions of international law arising out of the unsettled
relations with foreign governments following the War of the
Revolution.
In addition to this he was obliged to perform all the physi-
cal labor of the office, for Congress had failed to provide for
him clerical assistance, and he had not even a single clerk.
The President formed of the heads of the three departments
and the Attorney-General an advisory council, subsequently
known as the Cabinet; and during both his administrations
sought to divide the cabinet officers equally between the two
opposing political parties.
In December, 1790, the seat of government was removed
from New York to Philadelphia where it remained until 1800.
The Supreme Court met for the February term 1791 in Phila-
delphia, and for ten years held its sessions in the South Cham-
ber, upstairs, of the old City Hall; but no office was provided
for the Attorney-General.
In March, 1791, Congress increased the salary of the Attor-
ney-General to $1,900 which was maintained until 1797, when
it was increased to $2,000. In December of the same year
Randolph wrote a long letter addressed to the President, con-
taining important recommendations concerning the office of
Attorney-General. He advised that the Attorney-General
be authorized to represent the Government in the inferior
courts as well as in the Supreme Court; that he be given con-
trol and supervision of the district attorneys; and he pointed
out the urgent necessity for a clerk. Washington transmitted
this letter to Congress in a special message, and the committee
to whom it was referred investigated the questions and re-
Its History and Functions.
7
ported favorably upon all the recommendations of the At-
torney-General. Despite the letter of Randolph, the message
of Washington and the favorable report of the committee,
Congress took no action. Twenty-seven years elapsed before
any allowance was made for clerk hire, and seventy before
the Attorney-General was given supervision and control of
district attorneys.
From this time the work of the Supreme Court increased,
and the amount of work performed by Randolph was pro-
digious, and indeed almost incredible.
In December, 1793, Jefferson retired as Secretary of State,
and Randolph was appointed in his place, assuming the duties
of the office on January 2, 1794.
William Bradford of Pennsylvania was selected by Wash-
ington to succeed Randolph, and was commissioned on Jan-
uary 27, 1794. Nothing of importance occurred during his
administration of the office except the "Whiskey Insurrec-
tion" in western Pennsylvania. Bradford was sent by
Washington as one of the commissioners to investigate the
insurrection. He reported that the laws could not be en-
forced by the civil authorities, and advised that military force
be used. His advice was followed and the insurrection was
quickly stamped out.
Bradford died after a very brief illness in August, 1795;
and Washington tendered the office to John Marshall, but
he declined it because he could not afford to abandon his
private law practice. Washington then, on December 10,
1795, appointed Charles Lee of Virginia. Lee served to the
end of Washington's second administration, and was re-
tained by John Adams, serving almost to the end of the latter's
administration. During Lee's occupancy of the office the
salary was twice increased, to $2,600 in 1797 and to $3,000 in
1799. In December, 1800, the seat of government was re-
moved from Philadelphia to Washington, but Lee served only
a short time after this, retiring to become one of the circuit
judges in February, 1801.
3
8
The Department of Fustice;
Theophilus Parsons of Massachusetts was nominated on
February 18, 1801, as Attorney-General in place of Lee, and
the nomination was confirmed by the Senate; but no com-
mission was issued, as he declined to accept the office. His
name is sometimes erroneously included in the list of the
Attorneys-General.
In Washington the departments were housed in brick and
wooden buildings grouped about the President's house on the
sites now occupied by the Treasury, State, War and Navy
buildings. No quarters were provided for the Attorney-
General, and he was expected to furnish his own quarters,
fuel, stationery and clerk. For this reason the Attorneys-
General after Lee and until 1814 did not reside permanently
in Washington, but remained at their homes and transmitted
their advice and opinions by mail, going to Washington only
when it became necessary to appear before the Supreme Court.
When Jefferson became President on March 4, 1801, he
appointed Levi Lincoln of Massachusetts Attorney-General,
and he served until the end of Jefferson's first administration,
when he resigned.
On March 2, 1805, Jefferson nominated Robert Smith, then
Secretary of the Navy, as Attorney-General, and Jacob
Crowninshield as Secretary of the Navy. Both nominations
were confirmed and commissions were issued, but Crownin-
shield refused to accept the office of Secretary of the Navy
and Smith continued to occupy that office, never qualifying
as Attorney-General nor performing any of the duties of the
office. His name is frequently erroneously included in the
list of the Attorneys-General. The office remained vacant
until August, 1805, when Jefferson appointed John Breckin-
ridge of Kentucky, who served until his death in December,
1806. Cæsar Rodney of Delaware was selected by Jefferson
to succeed Breckinridge. He was appointed on January 7.
1807, and was retained by Madison, serving until December,
1811. It was during Rodney's term of office that Aaron Burr
was prosecuted for treason. Rodney directed all the pre-
Its History and Functions.
9
liminaries of the prosecution, and appeared in the circuit
court at Richmond and personally conducted and argued the
cases, being assisted by George Hay, district attorney for
Virginia, William Wirt, afterwards Attorney-General, and
other counsel.
Madison selected as Rodney's successor William Pinkney
of Maryland, and he was commissioned on December II, ISTI.
Pinkney lived in Baltimore, and like his predecessors after
Lee declined, in spite of the President's request, to reside
permanently in Washington. Finally Madison insisted that
he should do so, and Pinkney thereupon resigned in 1814.
On February IO, 1814, Madison appointed as Pinkney's
successor Richard Rush of Pennsylvania, one of the conditions
of the appointment being that Rush reside in Washington.
President Madison, in his eighth annual message, called the
attention of Congress to the condition of the office of Attorney-
General. He related at great length the hardships which re-
sulted from the failure of Congress to provide a suitable salary,
office quarters, clerical assistance, and so forth; and called
attention to the necessity for a reorganization of the office
and the extension of its powers and duties. He earnestly
recommended the establishment of a new department, the
increase of the Attorney-General's salary, a provision for
offices, clerical assistance, and other necessities. But the
appeal fell on deaf ears. Congress did nothing. Rush was
retained by Monroe until September, 1817, when he made him
Minister to England.
William Wirt of Virginia was appointed Attorney-General
by President Monroe on November 13, 1817, and served
throughout the administrations of Monroe and John Quincy
Adams, retiring on March 3, 1829, after serving more than
eleven years, much longer than any Attorney-General before
or since.
Upon the fly-leaf of the earliest record book of the Depart-
ment of Justice appears the following interesting entry in
Wirt's own handwriting-as clear today as when it was
written:
IO
The Department of Fustice;
"ATTORNEY-GENERAL'S OFFICE,
"13 Novr. 1817.
"Finding on my appointment, this day, no book, docu-
ments, or papers of any kind to inform me of what has been
done by any one of my predecessors, since the establishment
of the Federal Government, and feeling very strongly the
inconvenience, both to the nation and myself, from this omis-
sion, I have determined to remedy it, so far as depends on
myself, and to keep a regular record of every official opinion
which I shall give while I hold this office, for the use of my
successor.
"To make the arrangement as perfect as I can I have pre-
vailed on the heads of Departments to furnish me with copies
of all the documents on which I shall be consulted and which
will be found filed and numbered, to correspond with the
numbers in the margin prefixed to each opinion. A copious
index to this book is also given, with reference, under various
heads, to each case, for the greater facility of using the book.
"Wм. WIRT."
This book was faithfully kept by Mr. Wirt in accordance
with his plan, the earlier entries all being in his own hand-
writing.
President Monroe and Mr. Wirt continued to urge upon
Congress the necessity for a clerk, and Congress at last, in
1818, provided $1,000 for the employment of one clerk and
$500 for office rooms, stationery and other incidental ex-
penses. In 1819 the salary of the Attorney-General was
raised to $3,500 and at the same time the salaries of the Sec-
retaries of State, Treasury, War and Navy were fixed at
$6,000 and that of the Postmaster-General at $4,000.
In 1822 the Attorney-General was furnished with his first
official quarters, a room on the second floor of the old War
Department building, west of the President's house, which
was retained until 1839 when better quarters were provided
in the central portion of the Treasury building. Mr. Wirt's
Its History and Functions.
II
administration covered the so-called era of good feeling, and
there was little out of the ordinary that occurred during this
time. But he did more to put the office of Atttorney-Gen-
eral on a firm business basis than any other of its occupants.
On March 9, 1829, President Jackson appointed as Wirt's
successor John McPherson Berrien of Georgia. In his annual
messages to Congress President Jackson repeated the recom-
mendations of many of his predecessors concerning the office
of Attorney-General. But Congress instead of carrying out
the President's recommendations and increasing the powers
and duties of the Attorney-General, created, in 1830, the
office of Solicitor of the Treasury, giving to that officer con-
trol of civil suits in which the Government was interested.
The law was of advantage to the Attorney-General in one
way, for it made him the legal adviser of the Solicitor and
gave him for this duty $500 a year, thus increasing his salary
to $4,000.
Berrien resigned July 20, 1831, and on the same day Jackson
appointed as his successor Roger Brooke Taney, at that time
Attorney-General of Maryland and afterwards Chief Justice
of the United States. Taney was one of Jackson's closest
advisers, and took a prominent part in the nullification con-
troversy and in the questions concerning the United States
Bank. When Jackson removed Secretary Duane of the
Treasury for refusing to obey his instructions in the bank
matter Taney very reluctantly retired from the office of At-
torney-General and became Secretary of the Treasury in
September, 1833. The duties of this office were distasteful
to Taney and he soon retired to private practice in Baltimore.
The office of Attorney-General remained vacant until
November 15, 1833, when President Jackson appointed Ben-
jamin Franklin Butlèr of New York. He was retained by
President Van Buren and served until September I, 1838,
when he resigned and Felix Grundy of Tennessee was appoint-
ed. He served until December I, 1839, when he resigned.
It was during his term that the office was removed to its
I2
The Department of Fustice;
second home, in the Treasury building. In August, 1839,
the Attorney-General with his clerk, messenger and library,
moved into rooms on the second floor of the Fifteenth street
front of this building, and remained there for about sixteen
years.
On January II, 1840, Henry Dilworth Gilpin of Pennsyl-
vania was appointed Attorney-General, and served until the
end of President Van Buren's administration in 1841. Dur-
ing this year he prepared "The Opinions of the Attorneys-
General of the United States from the Beginning of the Gov-
ernment to 1841," which was transmitted by the President
to Congress and printed as a House Document.
In 1840 Congress appropriated $1,000 for books for the
Attorney-General. The books purchased by Attorney-Gen-
eral Gilpin, together with those which had been purchased
with $500 appropriated in 1831, formed the nucleus of the
present library of the Department of Justice.
On March 5, 1841, President William Henry Harrison ap-
pointed John Jordan Crittenden of Kentucky Attorney-Gen-
eral, but he served only a few months, retiring soon after
President Harrison's death; and on September 13, 1841,
President Tyler appointed Hugh Swinton Legaré of South
Carolina.
On September II, 1841, Congress, by a joint resolution,
made it the duty of the Attorney-General to examine into
the titles of the lands or sites which had been purchased or
should thereafter be purchased by the United States for
governmental purposes.
On June 20, 1843, Attorney-General Legaré died suddenly,
and on July 1st following the President appointed John Nel-
son of Maryland Attorney-General. He served until the end
of Tyler's administration. On March 6, 1845, President Polk
appointed John Young Mason of Virginia Attorney-General.
In his first annual message President Polk strongly urged
upon Congress the necessity of creating a legal department
with the Attorney-General at its head, and of placing him on
Its History and Functions.
13
the same footing with the heads of the other executive de-
partments. But his recommendations met the fate of the
many that had gone before. Congress read them and did
nothing.
On September 9, 1846, Mr. Mason retired from the office of
Attorney-General to become Secretary of the Navy, and in
his place Nathan Clifford of Maine was appointed on October
17, 1846. He served less than eighteen months and was
succeeded on June 20, 1848, by Isaac Toucey of Connecticut
who served less than nine months, until the close of Presi-
dent's Polk administration. On March 8, 1849, President
Taylor appointed Reverdy Johnson of Maryland Attorney-
General. He resigned on July 20, 1850, shortly after Presi-
dent Taylor's death.
The Act of Congress of February 22, 1849, provided that
the Attorney-General should cause to be made and provided
for his office a seal "with such device as the President of the
United States shall approve." The exact time of the ap-
proval by the President and adoption by the Attorney-Gen-
eral of a seal is in doubt. For many years a tradition has
prevailed in the Department that the seal was devised and the
motto chosen by Attorney-General Black, but this is clearly
erroneous, for Mr. Black did not become Attorney-General
until March 6, 1857, and Attorney-General Cushing in a re-
port to the President dated March 8, 1854, said that the At-
torney-General's office "has an official seal, and all copies of
records authenticated by certificate under this are declared
to be evidence equally with the original record or paper.
It is possible that the tradition is correct to the extent that
Mr. Black added the motto to the seal which had been adopted
by one of his predecessors. Unfortunately there is no cor-
respondence nor other record in the Department files, or else-
where so far as has been discovered, showing even the ap-
proximate date of the approval by the President and adop-
tion by the Attorney-General, of the seal. It is probable that
very soon after the passage of the law Attorney-General
14
The Department of Fustice;
Johnson devised the seal and President Taylor approved it.
The seal as adopted and used by the Attorney-General con-
sisted of the United States shield, with stars (improperly)
on the chief, from it an eagle rising, with outstretched wings,
bearing in the right talon an olive branch, in the left arrows,
beneath which, in a semi-circle was the motto: Qui Pro Dom-
ina Fustitia Sequitur, and in an outer circle: Attorney-Gen-
eral's Office; being, in fact, identical with the present seal
of the Department (adopted in 1872) except that in the latter
the words: Department of Fustice appear in the outer circle
in place of Attorney-General's Office. It is stated that the
motto was suggested to the deviser of the seal by the follow-
ing passage in Coke's Institute, Part 3, folio 79 "And I well
remember when the Lord Treasurer Burleigh told Queen
Elizabeth, Madam, here is your Attorney-General (I being
sent for) qui pro domina regina sequitur, she said she would
have the records altered; for it should be attornatus generalis
qm pro domina veritate sequitur."
DOMINA JUSTITA OF
55
*
It is supposed that Lord Burleigh quoted the phrase from
a Latin legal form then used in making up pleadings in cases
conducted by the Attorney-General for the Crown. The
deviser of the seal substituted justitia for regina or veritate.
Its construction is hopeless: its translation has baffled more
than one good Latin scholar. In view of its origin it may
be rendered, (referring to the Attorney-General): "Who
sues for the Lady Justice." Another translation, equally
correct, is: "Who follows Justice for mistress."
Its History and Functions.
15
About 1850 the preliminary and advisory work upon ap-
plications for executive clemency, which up to that time had
been transacted by the Secretary of State and the Attorney-
General jointly (all the papers and records being kept in the
Department of State) was transferred by the President's
order to the Attorney-General, and since that time this work
has been transacted through the Attorney-General's office.
On July 20. 1850. President Fillmore appointed as Attor-
ney-General John Jordan Crittenden of Kentucky. who had
held the office under President William Henry Harrison.
In 1551 the Attorney-General's salary was increased to $6,000
and during the same year was begun the official publication
of the opinions of the Attorneys-General. At this time two
clerks and one messenger were employed in the Attorney-
General's office. In 1853 Congress at last complied with the
requests of the several Presidents who had recommended
that the Attorney-General be placed on an equal footing with
the other cabinet officers, and fixed the compensation of the
Attorney-General and the other cabinet officers at $8,000,
at which hgure it has remained to the present time.
On March 7. 1853. President Pierce appointed Caleb Cush-
ing of Massachusetts Attorney-General. He was the first
Attorney-General since Wirt to serve through an entire ad-
ministration of four years. The most noteworthy event of
his administration affecting the office of Attorney-General
and the judiciary was the rendering by him of two important
reports-one upon the judiciary and one upon the legal de-
partment of the Government. These reports are monumen-
tal AS historical documents. They were written in 1853 and
34. and transmitted by the President to Congress. The
report upon the judiciary consists of a complete history of
the judiciary from the adoption of the Constitution, and
contains recommendations for the modification and enlarge-
ment of the entire judicial system. It paved the way to the
subsequent readjustment of the circuit court, and contained
the first suggestion of the establishment of an intermediate
16
The Department of Fustice;
appellate court which was carried into effect in 1891 by the
creation of the circuit courts of appeals.
His report on the legal department of the Government was
no less important. He reviewed the history of the office of
Attorney-General from the beginning, and made recommen-
dations, all of which finally-though many not for a long
time-were carried into effect. The report was in many
respects a repetition of the recommendations of his prede-
cessors-from Randolph down-but many of the suggestions
were original with Cushing.
About this time the Treasury building became overcrowded
and the office of the Attorney-General was removed to its
third home, in the old yellow brick building on the southeast
corner of Fifteenth and F streets-the site now occupied by
the Corcoran building-and remained there until 1861, when
upon the completion of the south wing of the Treasury the
Attorney-General was given a suite of rooms on the first floor
there.
In the appropriation act of March 3, 1855, the allowance
for the Attorney-General's office was materially increased
and the office force was also increased to seven clerks, a mes-
senger, and a general superintendent.
When Buchanan became President he appointed Jeremiah
Sullivan Black of Pennsylvania Attorney-General, and he
served until December, 1860, when he became Secretary of
State, and Edwin McMasters Stanton of Ohio was made Attor-
ney-General. On March 5, 1861, Edward Bates of Missouri suc-
ceeded Stanton as Attorney-General. In 1859 the office of
Assistant Attorney-General was created with a salary of
$3,000, and in 1861 Congress finally carried out the recom-
mendation which had been made by Randolph seventy years
before, and repeated by many of his successors, and gave the
Attorney-General control of the district attorneys. During
the war there was little legislation affecting the office of At-
torney-General, but during the latter sixties the duties and
powers of the office were largely increased.
its History and Functions.
17
Attorney-General Bates resigned in September, 1864, and
for several months Titian J. Coffey, Assistant Attorney-Gen-
eral. was acting Attorney-General by special direction of the
President. On December 1, 1864, the President appointed
Joseph Holt of Kentucky Attorney-General, but he declined
to accept the office. His name is sometimes erroneously
included in the list of the Attorneys-General.
On December 2. 1804. James Speed of Kentucky was ap-
pointed Attorney-General. In 1865 the salary of the Assist-
ant Attorney-General was increased to $3,500. and the offices
of chief clerk. pardon clerk and opinion clerk were created.
Mr. Speed was retained by President Johnson but resigned
on July 17. 1866, and was succeeded by Henry Stanbery of
Ohio. Mr. Stanbery resigned in March. 1868, in order to serve
as one of President Johnson's counsel in the impeachment
proceedings. The President held the office open for Mr.
Stanbery, (directing Orville H. Browning. Secretary of the
Interior, to act as Attorney-General ad interim), and after
his acquittal renominated Stanbery. But the Senate re-
jected the nomination and the President then appointed
William Maxwell Evarts of New York. who also had been one
of his counsel in the impeachment proceedings.
The act of March 2. 1867, provided that the Attorney-
General and the other cabinet officers should hold their re-
spective offices for and during the term of the President by
whom they were appointed, and for one month thereafter.
Until the passage of this law there had been no fixed tenure of
office for a cabinet officer.
In December, 1367. Attorney-General Stanbery made im-
portant recommendations concerning the reorganization of
his office. some of which were carried into effect almost im-
mediately. and others in 1870 when the Department of Justice
was established. By the act of June 25. 1868, it was made
the duty of the Attorney-General and his assistants to take
charge for the United States of cases in the Court of Claims,
and two assistants were provided with salaries of $4,000 each.
18
The Department of Fustice;
President Grant in March, 1869, appointed Ebenezer Rock-
wood Hoar Attorney-General. The plan for the modification
of the judiciary suggested by Cushing in 1854 was partially
adopted in 1869 when Congress provided for the appointment
of a circuit judge in each of the nine circuits. On June 23,
1870, Attorney-General Hoar resigned because of his disap-
proval of President Grant's policy in regard to the San Do-
mingo treaty. He was the last Attorney-General of the old
regime, and went out with the old order of things; for the
day before his resignation took effect the President approved
the act whereby the Attorney-General's office as an execu-
tive department ceased to exist and the Department of Justice
was established in its place.
CHAPTER II.
THE DEPARTMENT OF JUSTICE.
The growth of the Office of Attorney-General, both in its
functions and in its personnel, had been so great during the
first eighty years of the existence of the federal government
that at the end of that period it was in reality what it had
always been in theory, one of the executive departments of
the Government. There was needed a law to give it organi-
zation, a name and a home. The Forty-first Congress, heed-
ing in part the recommendations of the many Attorneys-
General and Presidents, gave it organization and a name, but
failed to provide a home; and enacted the law of June 22, 1870,
entitled An Act to Establish the Department of Justice.
This law provided that the Attorney-General should be the
head of the Department, with duties, salary and tenure of
office as already fixed by law. It created the office of So-
licitor-General, with salary of $7,500, and provided that he
should exercise all the powers of Attorney-General in case of
a vacancy in that office, or during the absence or disability
of the Attorney-General. It provided for two Assistant
Attorneys-General with salaries at the rate of $5,000 per
annum. It placed under the supervision of the Attorney-
General the law officers of the other departments, such as the
Solicitor of the Treasury and the Solicitor of Internal Rev-
enue; provided that any questions except those involving
construction of the Constitution might be referred by the
Attorney-General to his assistants or subordinates, and that
their opinions, approved by him, should have the same force
and effect as his own; that the Attorney-General and his
Department should have control of all criminal prosecutions
and civil suits in which the United States are interested; that
the Attorney-General might require the Solicitor-General
or any other officer of the Department to conduct and argue
20
The Department of Fustice;
any case in which the United States might be interested. in
the Supreme Court, the Court of Claims, or in any federal or
state court. The Attorney-General was given supervision
and control of district attorneys and all other counsel em-
ployed on behalf of the United States, and of the accounts of
district attorneys, marshals, clerks, and other officers of the
federal courts. There were many minor provisions concern-
ing the organization of the Department. The act was mainly
a re-enactment of the various laws already in effect; although
some laws were repealed, and some powers which had been
lodged in other departments were transferred to the new
department The only office of importance created was that
of Solicitor-General.
Attorney-General Hoar retired on the day this law took
effect, and was succeeded by Amos Tappan Akerman of
Georgia, who immediately took steps towards organizing the
new department.
At this time the Attorney-General and his immediate staff
had quarters in the south wing of the Treasury building, the
Solicitor-General and one of the Assistant Attorneys-General
with their clerical forces were quartered in the Hooe building
on F street near Fourteenth, one Assistant Attorney-General
and the Court of Claims occupied rooms in the basement of
the Capitol, and the other officers were scattered among the
various departments to which they were regularly attached.
In the matter of being housed the Department was in about
the same condition it is today. In 1871 the Attorney-Gen-
eral leased for ten years the second, third and fourth floors
of the Freedmen's Bank building, on Pennsylvania Avenue
opposite the Treasury, and all the Department force was
removed to this building except the Assistant Attorney-
General in charge of cases before the Court of Claims. He
with his office force remained at the Capitol. In 1872 the
fifth floor of the bank building was secured; and in 1882,
after the ten year lease had expired, Congress passed a law
providing for the purchase of the building for the Department
of Justice. The building was purchased for $250,000 on
Its History and Functions.
21
June 1. 1332, and the Court of Claims and the Assistant At-
torney-General who had been at the Capitol were removed to
the Department building. For the first time since the crea-
tion of the office of Attorney-General the legal department
of the Government had a home of its own. The Department
remained in this building until 1899, when Congress passed
an act, reciting that "the building now occupied by the De-
partment of Justice is too small for its purpose, is unsafe,
over-crowded. and dangerously over-loaded, and has been
pronounced unsafe after examination by the proper officials
of the Treasury Department." One million dollars was
appropriated for the erection of a new building. As soon
after the approval of this act as quarters could be secured
the old building was abandoned and demolished. It was im-
possible to secure any one building to accommodate all the
officers of the Department. The Attorney-General and his
personal staff are in the building on K street between Vermont
Avenue and Fifteenth Street formerly known as the Baltic
Hotel, the library is half a mile away in the old Corcoran Art
Gallery, and the other officers are scattered about in five
separate buildings, none of them originally intended for of-
fice purposes. In the meantime it was found that a building
to accommodate the Department could not be erected for a
million dollars, and Congress instead of appropriating more
has repealed the original law. Although the Department
owns the site for a building there seems little prospect of its
having a building of its own for very many years. And all
the time the Government is paying an enormous rent bill,
and the Attorney-General and his subordinates are handi-
capped by lack of proper facilities for the transaction of
business and by the separation of the various offices and bu-
reaus of the Department.
The period from 1870 to ISSo was one of great growth for
the Department. but was devoid of any event of striking im-
portance or interest. The first Solicitor-General, Benjamin
Helm Bristow, of Kentucky. was appointed by President
22
The Department of Fustice;
Grant, on October II, 1870. On January 10, 1871, Congress
began the long series of enactments, whereby the control and
supervision of United States prisons and prisoners has been
vested in the Attorney-General. By the Act of February 25,
1871, an additional Assistant Attorney-General was provided,
and was assigned to the Interior Department; and the act
of June 8, 1872, provided for the appointment of an Assistant
Attorney-General for the Post-Office Department.
On January 10, 1872, Attorney-General Akerman re-
signed, and George Henry Williams, of Oregon, was appointed
in his place, and on November 15, 1872, Solicitor-General
Bristow resigned and was succeeded by Samuel F. Phillips,
of North Carolina.
In 1873, the famous "Credit Mobilier" suits were tried.
On December 4, 1874, Attorney-General Williams issued a
temporary order, making the working hours in the Depart-
ment of Justice from 9 until 4- Before this time, the hours
had been 9 to 3. This order was made permanent on Decem-
ber I, 1875, and remained in effect until the executive order
of January 8, 1904, by which the working hours in all the
Departments were fixed from 9 until 4:30.
Attorney-General Williams retired on May 15, 1875, and
was succeeded by Edwards Pierrepont, of New York. It
was during his administration, that the investigation of the
notorious Whiskey Ring" was begun, and the prosecutions
conducted. He was succeeded in May, 1876, by Alphonso
Taft, of Ohio, who served less than ten months. On March
I2, 1877, President Hayes appointed Charles Devens, of Mass-
achusetts, Attorney-General. He was succeeded on March 7,
1881, by Wayne MacVeagh, of Pennsylvania, who retired
shortly after the death of President Garfield. Under him
were begun the prosecutions in the famous "Star Route"
cases, and the case against Guiteau, the assassin of President
Garfield, which prosecutions were continued by Attorney-
General Benjamin Harris Brewster, who succeeded Mr. Mac-
Veagh on January 2, 1882. On March 3, 1883, the so-called
Bowman Act" was passed. This law provided for the
115 History and Functions.
23
transfer of certain claims from Congress and the departments
to the Court of Claims; and towards the end of Mr. Brewster's
term of office. Congress passed an act to provide for the ascer-
tainment and payment of claims of American citizens for sept
French spoliations. Both' these laws largely increased the
work of the Department. Mr. Brewster was succeeded on
March 6, :385. by Augustus Hill Garland, of Arkansas, and
on May 1. 1385. John Goode, of Virginia, was appointed
Solicitor-General in place of Mr. Phillips.
The so-called "Tucker Act." of March 3. IS87, giving the
circuit and district courts of the United States concurrent
jurisdiction with the Court of Claims, greatly increased the
work of the Department.
On July 30. 1886, George Augustus Jenks, of Pennsylvania,
succeeded Mr. Goode as Solicitor-General.
President Benjamin Harrison appointed as Attorney-
General on March 5. 1SS9. William H. H. Miller, of Indiana,
and as Solicitor-General. on May 29. 1S89, Orlow W. Chap-
man, of New York. On February 15. 1S90, William H.
Talt. of Ohio, succeeded Mr. Chapman as Solicitor-General.
On July J. 1890, the so-called "Sherman Anti-Trust Law"
was enacted. On March 3. 1891, the circuit courts of appeals
were created. and an act of the same date created a court of
private land claims. On the same date was approved the
act providing for the adjudication of claims arising from
Indian depredations. This provided for an additional As-
sistant Attorney-General. and greatly increased the work of
the Department. On March 21, 1892, Charles H. Aldrich, of
Illinois became Solicitor-General in place of Mr. Taft.
When Mr. Cleveland became President the second time,
he appointed as Attorney-General. Richard Olney, of Mass-
achusetts, and Lawrence Maxwell. Jr., of Ohio, Solicitor-
General. The so-called Dockery law of July 31, IS94, pro-
resp.34
vided for the examination in the Department of Justice of
the accounts of officers of the United States courts. Under
this law the Division of Accounts of the Department of
24
The Department of Fustice;
Justice was organized. This law materially increased the
duties and the number of employees of the Department. On
February 6, 1895, Holmes Conrad, of Virginia, succeeded Mr.
Maxwell as Solicitor-General. The most important event
during Mr. Olney's administration of the office, from the
standpoint of the enforcement of law and order, was the
settlement of the great Pullman strike of 1894.
On June 7, 1895, Mr. Olney retired from the office of Attor-
ney-General to become Secretary of State; and on the follow-
ing day, Judson Harmon, of Ohio, was appointed Attorney-
General. He was succeeded on March 5, 1897, by Joseph
McKenna, of California, who served less than one year.
On July 1, 1897, John Kelvey Richards, of Ohio, was appoint-
ed Solicitor General.
On January 25, 1898, Attorney-General McKenna became
an Associate Justice of the Supreme Court of the United
States, and was succeeded by John William Griggs, of New
Jersey. During his three years in the office, Mr. Griggs was
largely engaged with the many important and difficult ques-
tions arising out of the Spanish War and its results. He also
practically concluded the long pending suits with the Pacific
railroads.
By the act of March 2, 1901, a commission was provided
to carry into effect the treaty between the United States
and Spain. This law provided for another Assistant Attor-
ney-General.
Attorney-General Griggs retired on March 29, 1901, and
was succeeded on April 5, 1901, by Philander Chase Knox,
of Pennsylvania
The act of February 14, 1902, made an appropriation for
defraying the necessary expenses in the conduct of insular
and Territorial matters, and the appropriation for this pur-
pose has become permanent. Under this appropriation a
new and important bureau, known as the Insular and Terri-
torial Bureau, was established in the Department.
The Fifty-seventh Congress passed several laws augument-
Its History and Functions.
25
ing the interstate commerce and anti-trust laws, and during
Mr. Knox's administration of the office, many important
suits have been won for the Government under these laws,
the principal ones being the cases known as the Beef Trust
cases, the Grain Rebate cases, and the Northern Securities
or Merger case.
The deficiency appropriation act approved March 3. 1903,
created the office of Assistant to the Attorney-General, with
compensation at the rate of S7,000 per anhum, and also pro-
vided for an additional Assistant Attorney-General. On
March-17, 1903, William A. Day, of the District of Columbia,
was appointed to the office of Assistant to the Attorney-
General, and was placed in charge, under the Attorney-
General, of all suits under the interstate commerce and anti-
trust laws. On March 16, 1903, Henry Martyn Hoyt, of
Pennsylvania, succeeded Mr. Richards as Solicitor-General.
The latest register- of the Department shows that there
are now employed in the various offices and bureaus of the
Department proper, in Washington, about two hundred and
sixty officers and employees, and in the various districts
throughout the United States, subject to the jurisdiction of
the Department, nearly thirteen hundred field officers and
employees. Besides the Attorney-General, Solicitor-General
and Assistant to the Attorney-General, there are eight Assist-
ant Attorneys-General, and one Special Assistant Attorney-
General.
The enormous volume of business which is now transacted
by and through the Department is shown in the annual re-
port of the Attorney-General to Congress, dated December
5, 1903.
On June S, 1904, Mr. Knox was appointed United States
Senator from Pennsylvania and shortly afterwards announced
his intention of retiring from the office of Attorney-General
on June 30th, and President Roosevelt selected as his successor
William Henry Moody, of Massachusetts, at that time Secre-
tary of the Navy.
written the day after Rundolph was commissioned as the
1st A.G.
308
309
127. KANSAS
in Santiago,
BARTOLOMEO VANZETTI, in a statement on the
2 Happy is the man who wakens to find he has
death sentences imposed on him and Nicola Sacco
wandered from Kansas only in a dream.
for the 1920 killing of a paymaster, April 9, 1927.
onstitution.
Attributed to Foster Dwight Coburn, 1881.
50 The administration of justice is the firmest pil-
in the U.S.
3 First in Freedom, First in Wheat.
lar of government.
Kansas slogan, quoted in Dwight D. Eisenhower,
GEORGE WASHINGTON, in a letter to Edmund
Eisenhower Speaks, 1948.
F a dream of
Randolph, September 27, 1789.
4 The roosters lay eggs in Kansas.
51 There is no happiness, there is no liberty, there
n Urbana,
The roosters lay eggs as big as beer kegs.
is no enjoyment of life, unless a man can say, when
And the hair grows on their legs in Kansas.
he rises in the morning, I shall be subject to the
Popular song, c.1880.
ity rule in all
decision of no unwise judge today.
as far as men
DANIEL WEBSTER, in a speech in New York
5 Raise less corn and more Hell.
City, March 10, 1831.
Advice to the farmers of Kansas, attributed to
Disobedience,"
Mary Elizabeth (mistakenly called Mary Ellen)
52 Justice, sir, is the great interest of man on earth.
Lease, but possibly "coined by a hostile reporter,"
It is the ligament which holds civilized beings and
according to Roger Butterfield, in The American
essary friction
civilized nations together.
Past, 1957.
: go, let it go;
DANIEL WEBSTER, in a funeral address for
6 To understand why people say "Dear old Kan-
tainly the ma-
Joseph Story, September 12, 1845.
sas!" is to understand that Kansas is no mere geo-
graphical expression, but a state of mind, a religion,
53 Judging from the main portions of the history
and a philosophy in one.
of the world, so far, justice is always in jeopardy.
CARL LOTUS BECKER, "Kansas," 1910.
risons any un-
WALT WHITMAN, Democratic Vistas, 1870.
$ also a prison.
7 There is no monument under heaven on which
54 The hope of all who suffer,
I would rather have my name inscribed than on this
The dread of all who wrong.
goodly state of Kansas.
n intelligence
JOHN GREENLEAF WHITTIER, characterizing the
HENRY WARD BEECHER, in a speech at Emporia,
gnorance, stu-
Union cause in the Civil War, in "The Mantle of
Kansas, 1883.
St. John De Matha," 1865.
8 Kansas, in sum, is one of our finest states and
2.
55 Justice has nothing to do with expediency. Jus-
lives a sane, peaceful, and prosperous life.
how-and try
tice has nothing to do with any temporary standard
PEARL S. BUCK, America, 1971.
whatever. It is rooted and grounded in the funda-
9 Kansas is the navel of the nation. Diagonals
mental instincts of humanity.
drawn from Duluth to Galveston, from Washing-
WOODROW WILSON, in a speech in Washington,
ton to San Francisco, from Tallahassee to
:, I might have
D.C., February 26, 1916.
Olympia, from Sacramento to Augusta, intersect it
ers to scorning
in its center.
nknown, a fail-
is is our career
JOHN JAMES INGALLS, in a speech in the U.S.
Senate, c.1885.
1 life could we
127. KANSAS
for joostice, for
10 We preferred the comparatively simple but
we do by acci-
more intelligent life of Kansas to Washington.
ains-nothing!
There are some intelligent people in Washington.
good shoemaker
1 Ad astra per aspera. (To the stars through dif-
More of 'em in Kansas.
t last moment
ficulties.)
ALFRED M. "ALF" LANDON, speaking of his
riumph.
State motto.
decision not to run for the Senate after his defeat
312
JUSTICE
JUSTICE
313
Juries fairly chosen from different walks of life bring into the jury box
a variety of different experiences, feelings, intuitions, and habits. Such
progress of our race. And whoever labors on this edifice, with useful-
juries may reach completely different conclusions than would be
ness and distinction, whoever clears its foundations, strengthens its
reached by specialists in any single field including specialists in the
pillars, adorns its entablatures, or contributes to raise its august dome
military field. On many occasions, fully known to the Founders of this
still higher in the skies, connects himself in name, and fame, and
country, jurors-plain people-have manfully stood up in defense of
character, with that which is and must be as durable as the frame of
liberty against the importunities of judges and despite prevailing hys-
human society.
teria and prejudices. The acquittal of William Penn is an illustrious
-WEBSTER, Daniel, in Life and Letters of Joseph Story (William W.
Story, ed., Boston: Charles C. Little and James Brown, 1851), Volume
example. Unfortunately, instances could also be cited where jurors
II, p. 624.
have themselves betrayed the cause of justice by verdicts based on
...
prejudice or pressures. In such circumstances independent trial judges
and independent appellate judges have a most important place under
our constitutional plan since they have power to set aside convictions.
The most odious of all oppressions are those which mask as justice.
-BLACK, Hugo L., in Toth V. Quarles, 350 U.S. 11, 18-19 (1955).
-JACKSON, Robert H., in Krulewitch V. United States, 336 U.S. 440,
458 (1949).
...
...
Few would be so narrow or provincial as to maintain that a fair and
enlightened system of justice would be impossible without them.
Justice, I think, is the tolerable accommodation of the conflicting in-
-CARDOZO, Benjamin N., in Palko V. Connecticut, 302 U.S. 319,
terests of society, and I don't believe there is any royal road to attain
325 (1937).
such accommodations concretely.
-HAND, Learned, Life Magazine, Nov. 4, 1946, pp. 122-25.
...
...
A jury verdict is a quotient of the prejudices of twelve people.
-GRUBB, Kenneth P., "False Fears", Volume 26 Insurance Counsel
But justice, though due to the accused, is due to the accuser also. The
Journal (No. 4, October, 1959), p. 480.
concept of fairness must not be strained till it is narrowed to a fila-
ment. We are to keep the balance true.
...
-CARDOZO, Benjamin N. in Snyder V. Commonwealth of Massa-
chusetts, 291 U.S. 97, 122 (1934).
...
JUSTICE
Justice is indiscriminately due to all, without regard to numbers,
a long line of cases shows that it is not merely of some impor-
wealth, or rank.
tance but is of fundamental importance that justice should not only
-JAY, John, Georgia V. Brailsford, 3 U.S. (3 Dall.) 483, 484 (1794).
be done, but should manifestly and undoubtedly be seen to be done.
Nothing is to be done which creates even a suspicion that there
...
has been an improper interference with the course of justice.
-HEWART, Lord, Rex V. Sussex Justices [1924], 1 K.B. 256, 259.
...
"justice turned bottom side up."
...
-JACKSON, Robert H., in Anti-Fascist Committee V. McGrath, 341
U.S. 123, 186 (1951).
so venerable, so majestic is this living temple of justice, this im-
...
memorial yet ever freshly growing fabric of our common law, that the
least of us is proud who may point to so much as one stone thereof
Justice, sir, is the great interest of man on earth. It is the ligament
and say the work of my hands is here.
which holds civilized beings and civilized nations together. Wherever
-POUND, Roscoe, "Award to Dean Pound," 26 A.B.A.J., 800, 801
her temple stands, and so long as it is duly honored, there is a founda-
(1940).
tion for social security, general happiness, and the improvement, and
...
KNOX, PHILANDER
334
33
KNOX, Philander Chase (1853-1921), US
school by representatives of an examining
Kl
lawyer and political leader. He was attorney
board.)
Br
general (1901-04) and secretary of state (1909-
"One of the inspectors proved to be his old
13).
friend Mr. Thomas Higham of Trinity. The
1
meeting was a complete surprise to both of
Su
1 In 1903 Theodore Roosevelt acquired the
them. Ronald was taking his form in Aeneid.
firs
Panama Canal Zone. Though proud of his
He gave no sign of recognition, but quietly
WC
achievement, he knew that not all citizens ap-
said: 'Pay no attention to this gentleman. He's
ing
proved of it. Philander Knox, his attorney gen-
stone deaf.' Mr. Higham played up, sat blankly
da
eral, was a corporation lawyer, and it was to
cupping his hand on his ear while a boy con-
3:3
him that Roosevelt went for a defense of his
strued, then rose, said, 'I have not been able to
mc
action. Knox is said to have replied, "Oh, Mr.
hear anything you have said, but I perceive by
Ro
President, do not let so great an achievement
the intelligent look on your faces that you have
W1
suffer from any taint of legality."
fully mastered the text,' and left them."
the
qu
4 Knox was engaged in a theological discus-
sto
KNOX, Ronald (1888-1957), British Roman
sion with scientist John Scott Haldane. "In a
Catholic priest and author. A convert to Cathol-
universe containing millions of planets," rea-
icism at the age of twenty-nine, he became
soned Haldane, "is it not inevitable that life
KC
Roman Catholic chaplain at Oxford University
should appear on at least one of them?"
wn
in 1926. He is best known for his modern trans-
"Sir," replied Knox, "if Scotland Yard found
Bri
lation of the Vulgate, his books relating the his-
a body in your cabin trunk, would you tell
(19
ory of his conversion (such as A Spiritual Ae-
them: 'There are millions of trunks in the
era
eid, 1918), and his detective stories.
surely one of them must contain a
cal
body?' I think they would still want to know
The
As a boy of four, Knox suffered quite seri-
who put it there."
of (
usly from insomnia. Asked by a friend of the
(19
mily how he managed to occupy himself dur-
Ko
3 his sleepless nights, he answered, "I lie
5 Traveling by train from Oxford to London
dise
ake and think about the past."
one morning, Knox opened his copy of The
suic
Compare ALDOUS HUXLEY 1.
Times and turned straight to the crossword
puzzle, reputed to be the most difficult in the
1
2 (Knox taught for seven years at St. Ed-
world. One of his fellow passengers, noticing
"
mund's College, a Roman Catholic boys'
that the priest had been staring at the puzzle for
Lati
school in Hertfordshire. He did not receive a
several minutes without filling in any of the
equ
very promising impression of the place on his
answers, offered to lend him a pencil. "No,
Frei
first visit in February 1918.)
thanks," replied Knox, looking up with a smile.
are
"He was taken for a walk by one of the
"Just finished."
to
priests on the staff, and as they went down the
con
avenue of bare chestnuts, his companion felt
6 (Watched over by devoted friends, Knox
ToΓ
moved to remark: 'Come on ye buds, bust.
died of cancer of the liver.)
There's a fine line for a Punch poem.'
"For three days he lay in a coma, but once
2
"Ronald appeared to be a little depressed by
Lady Eldon saw a stir of consciousness and
ing,
this sally. They walked for an hour through
asked whether he would like her to read to him
writ
dismal lanes and footpaths, talking of general
from his own [translation of the] New Testa-
the
matters. Ronald seemed preoccupied. At
ment. He answered very faintly, but distinctly:
length they returned in chill twilight up the
'No,' and then after a long pause in which he
3 ]
avenue. Ronald then said: 'Come on ye buds,
seemed to have lapsed again into unconscious-
man
bust./ You really must/ And show this unfor-
ness, there came from the deathbed, just audi-
Engl
tunate newcomer/ How beautiful this place
bly, in the idiom of his youth: 'Awfully jolly of
copy
can be in summer."
you to suggest it, though.'
the
"They were his last words."
shim
3 (While Knox was teaching Latin at St. Ed-
said
mund's, there was an official inspection of the
the }
DOJ
T The
KF
5107
Department of
,H8
Justice
copy2
PRAEGER LIBRARY OF U.S. GOVERNMENT DEPARTMENTS
AND AGENCIES
Consulting Editors
Luther A. Huston
ERNEST S. GRIFFITH
Former University Professor and Dean Emeritus, School of Interna-
tional Service, American University; former Director, Legislative Refer-
ence Service, Library of Congress; and author of The American System
of Government and The Modern Government in Action
HUGH LANGDON ELSBREE
Former Chairman, Department of Political Science, Dartmouth Col-
lege; former Managing Editor, American Political Science Review;
former Director, Legislative Reference Service, Library of Congress
FREDERICK A. PRAEGER, Publishers
New York
Washington
London
8
THE DEPARTMENT OF JUSTICE
LEARNED IN THE LAW
9
the President and heads of departments, it is noteworthy
YEARS OF FRUGALITY
that the Attorney General assumed thereby a role touching
the policy-making functions of government only where legal
Having created the Office of Attorney General and an em-
opinions given executive officers might influence policy deci-
sions.
bryonic system of law enforcement, Congress proceeded for
most of the next 100 years to practice frugality, if not parsi-
Moreover, the law, in effect, perpetuated the colonial sys-
mony, in the matter of funds. At first, the salary of the Attor-
tem of county attorneys and of deputy attorneys general by
ney General was fixed at $1,500 per year, and he was given no
providing, in addition to the Attorney General, additional
funds for office rent, clerk hire, stationery, postage, candles,
district attorneys for the United States in the lower courts to
oil for his lamps, or coal for his stove. Any expenses involved
prosecute "all delinquents for crimes and offenses cognizable
in the operation of the office were paid for out of his own
under the authority of the United States, and all civil actions
pocket. Requests for salary increases, office help, and office
in which the United States shall be concerned." This provi-
facilities were transmitted from one Attorney General after
sion meant that the real law enforcement power rested in
another to Congress by Presidents, but the legislature was
lesser officials over whom the Attorney General, in theory
slow to respond. Reasons of economy probably predomi-
the government's top lawyer, had virtually no control.
nated. However, the fear of strengthening sinews that might
Although the act of 1789 did not assign to the Attorney
be flexed to menace states' and individuals' rights and liber-
General the obligation to act as lawyer for the legislative
ties was often reflected in Congressional debates. A less than
branch, Congress for some years looked upon the Attorney
lavish increase in salary to $1,900 was granted in 1791, and a
General as its de facto counsel. Feeling their way through
more substantial advance to $3,000 was forthcoming in 1799.
the law-making process, and not always sure that the legisla-
Still, there was no appropriation for clerk or contingent ex-
tion they were considering was legal or constitutional in
penses. Congress loosened the purse strings a little more in
form or purpose, the legislators asked the Attorney General
1819, when the salary was raised to $3,500, with an allow-
for his opinion upon all manner of bills and procedures, par-
ance of $1,000 for a clerk and a contingent fund of $500 for
ticularly in regard to their constitutionality. There were
stationery, stamps, fuel, and "a boy to attend to menial du-
many skilled lawyers in the Senate and House who had par-
ties." The office ran on that basis for more than ten years,
ticipated in drafting the Constitution, but they continued to
until, in 1831, the salary became $4,000, with $500 for con-
seek the advice of the Attorney General even while exercising
tingencies, $733 for an office, and $500 for books-the first
the prerogative of disagreeing with his opinions Over the
appropriation for what was to become, eventually, a splendid
first thirty years of the Office of Attorney General's exis-
library. In 1840 and again in 1850, Congress appropriated
tence, requests from Capitol Hill for advice became so numer-
more money for law books. And, in 1850, at the same time
ous that they constituted a large part of the Attorney Gen-
the salary of the Attorney General was increased to $6,000,
eral's regular work. Incumbents found this situation irksome,
Congress also granted an additional clerk. Even so, after
but none did anything definite about it until 1819, when Wil-
sixty years' existence, the nation's chief law office still had a
liam Wirt, the ninth Attorney General, put a stop to it.
staff of only four-the Attorney General, two clerks, and a
10
THE DEPARTMENT OF JUSTICE
LEARNED IN THE LAW
11
messenger. When Caleb Cushing became Attorney General
From the beginning, Presidents were aware that the low
in 1853, he found the work of the office so far behind that he
alary paid the Attorney General made it difficult to attract
appealed to President Franklin Pierce for help and received
igh-grade men to the office. They baited the hook with the
Presidential authorization to employ three temporary clerks.
lure of remunerative private practice. George Washington
Soon afterward, Congress authorized four permanent clerks,
vas the first to make use of that enticement.
and record-keeping finally became current and efficient.
President Washington wanted Edmund Randolph, who
Although Presidents and Attorneys General had often
had been his aide in the Revolutionary War and was his per-
recommended legal assistants for the office, Congress did not
onal attorney, as the first Attorney General. Randolph was
adopt any such recommendations until Jeremiah S. Black
burdened with heavy financial obligations and was reluctant
became Attorney General, succeeding Cushing. Black was
to accept, but Washington pointed out that the office would
deluged with California land cases and other litigation. In
"confer pre-eminence" upon the incumbent and accord him
1858, heeding his pleas for help, Congress authorized two
"decided preference of professional employment." Ran-
legal assistants. The Office of Attorney General finally be-
dolph took the bait and the job. During his tenure, he sub
came more than a one-man job as far as the exercise of its
stantially augmented his income by representing private cli-
legal functions was concerned.
ents. Twenty-two of his successors followed his example,
By 1861, the U.S. Government had four chief law officers.
some of them appearing as counsel in the most noted cases of
They were the Attorney General, an assistant attorney gen-
their times. Caleb Cushing was the first to abandon private
eral, the solicitor of the Court of Claims, and the solicitor of
bractice and devote all of his time to the government's legal
the Treasury Department. At that, the solicitors were not
business.
under direct control of the Attorney General-although he
Cushing was also the first Attorney General to reside full
was obligated to handle much of the litigation that arose out
time in the national capital. There was no requirement that
of their offices. Business grew so heavy while the authorized
the Attorney General live at the seat of government but only
staff stayed so small that it became necessary to employ out-
that he be present while the Supreme Court was in session.
side counsels to represent the U.S. Government, and, be-
That gave incumbents ample time to devote to personal af-
tween 1861 and 1867, fees of these outside counselors cost
fairs and private law offices. Wirt, for instance, maintained
$475,190. When Congress took note of what seemed such
an office in Baltimore during his entire incumbency and Wil-
large expenditures to handle the nation's law business, it
liam Pinckney, President Madison's Attorney General,
appointed the Joint Committee on Retrenchments to study
threatened to resign when the President proposed in 1814
the situation. Out of this study came a resolution by Repre-
that a law be passed requiring the Attorney General to "keep
sentative William Lawrence of Ohio to consolidate all law
his office at the seat of government during the session of
offices in one department. Although not new, this proposal
Congress." The law was not passed, but when Pinckney re-
strongly appealed to those congressmen interested in gov-
signed for other reasons, Madison extracted a pledge from
ernmental economy. However, the appeal was not strong
Richard Rush, his successor, to live in the capital at least
enough to procure passage of the resolution, and it was not
while Congress was sitting. Between Rush and Cushing there
until several years later that the basic proposal was enacted
were fourteen incumbents who lived in Washington only
into law.
part of the time.
12
THE DEPARTMENT OF JUSTICE
LEARNED IN THE LAW
13
As has been related, the jurisdiction and duties of the At.
an 3,000 lawsuits. Jackson thought the Treasury was not
torney General were sketchily defined in the Judiciary Act of
doing the job very well and that it should not be the Treas-
1789. One of the earliest legislative measures to increase the
ry's job, anyway. He therefore recommended that these du-
duties of the office was to put Randolph on the Patent Board
ties be transferred to the Attorney General, at the same time
with the secretaries of State and War, and that action was
sking that all criminal proceedings involving violations of
followed by making him a member of the Sinking Fund Com.
ederal law, which were then conducted by the district attor-
mission. As the years went on, Congress and custom added
eys over whom the Attorney General exercised little or no
piecemeal to the Attorney General's responsibilities and
control, be placed under supervision of the nation's chief
tasks, such as prosecuting and defending all suits in the
law officer.
Court of Claims in which the United States was involved and
The Senate Judiciary Committee brought in a bill embody-
inquiring into the status of all funds held in trust by the
ng the main points of President Jackson's proposals, but
United States for Indian tribes. The chores given the Attor-
Daniel Webster, then one of the most powerful men in the
ney General were increasingly numerous and varied, but
Senate and hence in the nation, said that to place these func-
Congress steadfastly continued to withhold approval of pro-
tions in the Office of Attorney General would be to make the
business. posals to give him control over all the government's legal
Attorney General a fractional monstrosity "a half accoun-
tant, a half lawyer, a half clerk, a half everything and not
As early as Randolph's day, thoughts of some officials and
much of anything." As a substitute, Webster, still reflecting
legislators turned toward making the Office of Attorney
earlier fears of a strong law enforcement agency, proposed a
General into a unified law office, the head of which would
home department to handle the Patent Office, certain func-
have control of all officers and activities concerned with the
tions of the Treasury, and other items of the Jackson pro-
administration of justice. Indeed, that was one of the propos-
gram. A compromise was worked out, which created a solici-
als made by Randolph when he was asked to suggest im-
tor of the Treasury who would advise with the Attorney
provements in the 1789 Judiciary Act, and President Wash-
General but who would instruct the district attorneys, mar-
ington included it in the proposals to amend the Act that he
shals, and clerks of the lower courts in all matters and pro-
sent to Congress. But no action was taken.
ceedings in which the United States was concerned. President
Jackson renewed his proposals in a second message, saying
PROPOSALS FOR A DEPARTMENT OF LAW
that it would be in the public interest to give the Attorney
General superintendence over the law officers and legal in-
The first proposal to create a department of law was sent
terests of the government. Congress ignored the message.
to Congress by President Andrew Jackson with his annual
In 1845, President James K. Polk recommended creation
message of 1829. In 1820, Congress had provided that the
of a law department. Congress tabled his proposals.
President designate an official of the Treasury Department to
By 1851, the Department of Interior had been established,
direct proceedings to recover money or property due the
and Alexander H. H. Stuart was Secretary. Convinced that
United States. The district attorneys were to take orders from
his department was performing duties that properly be-
that official. By 1828, the Treasury was supervising more
longed in the hands of the Attorney General, Stuart was next
14
THE DEPARTMENT OF JUSTICE
LEARNED IN THE LAW
15
to suggest the formal creation of a department that would
deral legal machinery, advised that it would be to the ad-
perform all law enforcement functions and conduct all lega!
intage of public service if the various law officers attached
business of the government. Again, there was no legislative
other departments were transferred to the Office of Attor-
action.
General, "so that it may be made the Law Department of
Three years later, the Committee on Retrenchment and
Government, and thereby secure uniformity of decision,
Reform, brought in its bill to establish a department of law.
superintendence, and of official responsibility." In both
The measure was debated, but no action was taken. From
Senate and House, appropriate committees kept the sub-
then on, however, legislative skirmishing continued, and, at
ct under advisement and, after three-quarters of a century,
various times, Congress took steps that pointed toward even.
legislative processes were moving toward definite action
tual creation of a unified legal department. It acceded to
establish that which the founders had feared-a central-
requests of several departments to establish their own legal
ed agency to administer a growing body of federal law.
sections and created the solicitor and naval judge advocate
During these years before the establishment of the Depart-
general, the solicitor for the War Department, Post Office
ient of Justice, twenty-nine men occupied the Office of At-
solicitor, solicitor for the State Department, an assistant
orney General (one man served twice, under different Presi-
solicitor for the Treasury, and a solicitor of Internal Reve-
ents, so that there were thirty appointments in all). The
nue. As each of these proposals came before it, Congress was
art played by one Attorney General after another in the
told that it would be impossible for the Attorney General to
ffairs of the nation before and through the Civil War is
perform legal work for the entire government and that un-
evealed in the biographies of some of the outstanding men
less these offices were created, the department would have to
ho filled the post during the first eighty-one years.
resort to the expensive device of employing special counsel.
Senator Lyman Trumbull, of Illinois, opposed these meas-
BUTSTANDING ATTORNEYS GENERAL, 1789-1870
ures, stating that he did not believe it was "in harmony with
the organization of our system of government to have an
Edmund Randolph, who reluctantly accepted appoint-
Attorney General's office" in each department of govern-
nent as the first Attorney General, came to the post with a
ment. If that were to be done, he asserted, "we might as well
istinguished record of public service. He had been an aide-
abolish the Attorney General's Department." He contended
e-camp to General Washington, a member of the Continen-
that the Attorney General's office should be an independent
al Congress, the state of Virginia's first attorney general
department that would construe the laws for all departments,
an office he assumed in 1776 at the age of twenty-three, and,
secure uniformity of administration, and eliminate "diffi-
ike his father in the colony of Virginia, held for ten years),
culty, expense and uncertainty."
ind governor of Virginia. As a member of the Virginia Con-
Congressional interest in the establishment of a coordi-
ention of 1776, which advised the Continental Congress to
nated agency for administration and enforcement of federal
leclare independence, he had presented to the Constitu-
laws was building up. In 1867, Attorney General Henry
ional Convention the Virginia Plan, a formula for a federal
Stanbery, asked for his opinion as to what might be done to
inion that he had helped George Mason draft.
bring about a more efficient and economical operation of the
Two issues were paramount in Washington's Administra-
16
THE DEPARTMENT OF JUSTICE
LEARNED IN THE LAW
17
tion. One was the maintenance of neutrality in wars betweer
Charles Lee, the third Attorney General, would have scut-
other nations; the other, the advisability of creating a na-
ed the young nation's neutrality policy, but Washington
tional bank. Attorney General Randolph advised Washing.
id not follow his advice. Controversies had arisen between
ton to proclaim a national policy of neutrality, and, in
France, which was at war with England, and the new Ameri-
collaboration with Chief Justice John Jay, drew up a procla.
an Government, and Charles Maurice de Talleyrand sug-
mation that, when issued by Washington, became the policy
ested that matters might be adjusted more readily if the
of neutrality to which the United States adhered for more
United States contributed $250,000 to the French treasury.
than a century. Although he was on the side of Alexander
Lee, a fiery Virginian, was outraged. He proposed a declara-
Hamilton in favoring a strong federal government, Ran-
ion of war, an embargo on French shipping, revocation of
dolph was apprehensive that Hamilton's pet project, a na-
the exequaturs of French consuls, the opening of American
tional bank, would vitiate the system of checks and balances
borts to British privateers, and the arming of American mer-
that was a peculiar virtue of the federal government. So, as a
chant ships. Owing to Washington's prudence and policies,
matter of policy, but also of constitutional interpretation, he
Lee's de jure war never became de facto and ended when, in
advised Washington that Congress lacked constitutional
1800, a treaty of peace and friendship was negotiated with
power to incorporate a bank. (Thomas Jefferson, then Secre-
France. Lee continued to serve as Attorney General under
tary of State, was also opposed to the bank proposal but,
John Adams until 1801, when he was succeeded by Levi Lin-
when Congress passed the law incorporating it, Jefferson
coln, of Massachusetts, a Jefferson appointee who held the
advised Washington to sign the bill unless he was clearly
post until 1805.
convinced it was unconstitutional. Washington signed it,
Jefferson also appointed the fifth occupant of the office,
and thereafter the bank was a controversial issue in American
John Breckenridge, of Kentucky, who served a little over a
politics until President Andrew Jackson killed it.)
year, and the sixth, Caesar Rodney, of Delaware.
After he had been Attorney General two years and had
Rodney did not have a distinguished record as Attorney
formulated his ideas on what the functions of the office
General, but, in other capacities, stamped his name firmly on
should be and how it should operate, Randolph submitted to
the annals of his times. During the first two years he served
President Washington three basic recommendations. They
in Congress as a representative from Delaware, he was one
were that the Attorney General be authorized to represent
of the House managers in the impeachment trials of Judge
the federal government in lower courts as well as the Su-
John J. Pickering, of the U.S. District Court for New Hamp-
preme Court, be given control of the U.S. district attorneys,
shire, and Associate Justice Samuel Chase, the only Supreme
and be authorized to hire a clerk. Washington transmitted
Court Justice ever tried on a bill of impeachment. A dozen
these suggestions, and others, to Congress but no action was
years later Rodney was again elected to Congress on a plat-
taken at that time.
form opposing extension of slavery into the territories.
Randolph was appointed Secretary of State in December,
After serving a year of that term, he was elected by the Dela-
1793, when Jefferson left that office. William Bradford, of
ware legislature to fill a vacancy in the U.S. Senate, and, a
Pennsylvania, was then appointed Attorney General. Brad-
year later, left the Senate to become minister to Argentina.
ford served only four months.
Rodney already had served as a member of a commission
18
THE DEPARTMENT OF JUSTICE
LEARNED IN THE LAW
19
appointed by President James Monroe to survey the political
1822, and was known as a foremost interpreter of the Consti-
situation of South American republics, and the commission's
tution.
report was a factor in the subsequent enunciation of the
Richard Rush, son of Benjamin Rush, the famous physi-
Monroe Doctrine.
cian, and himself a man who was to play an important part in
William Pinckney, of Maryland, who followed Rodney as
American history as a diplomat, was the eighth Attorney
the seventh Attorney General, was one of the most eloquent
General. The Pennsylvanian's principal contribution in that
men of his time. He never wrote his speeches but could pour
office was to edit the Laws of the United States covering the
forth classical oratory whether arguing in the Supreme Court
years 1789 to 1815, published in five volumes as the Bioren
or debating in the Senate. Arguing in the high court in the
and Duance Edition, Philadelphia, 1815.
case of the Nereide, involving neutrality violations during
William Wirt, of Virginia, who followed Rush, held the
the War of 1812, Pinckney scorned the contentions of his
Office of Attorney General from November 13, 1817, to
opponents and declaimed:
March 3, 1829-more than eleven years. No other incumbent
Can a neutral surround himself "with all the pomp and circum-
has served in the post that long. During his tenure, he did
stance of war?" The idea of our opponents exhibits a discordia
more to increase its prestige and define its functions and
rerum-an incongruous mixture of discordant attributes; a
authority than any of his predecessors.
centaur-like figure-half man, half ship, a phantasmic form,
The day Wirt took office he sought the records of those
bearing in one hand the spear of Achilles, in the other the
predecessors; he was astounded to find there weren't any.
olive branch of Minerva; the frown of defiance on her brow,
On the fly-leaf of the earliest record book of the Office of
and the smile of conciliation on her lip, entwining the olive
Attorney General this inscription appears in Wirt's hand-
branch of peace around the thunderbolt of Jupiter, and hurling
it, thus disguised, indiscriminately at friends and foes.
writing:
Attorney General's Office,
Chief Justice John Marshall praised Pinckney's skill in
13, Novr. 1817.
painting a portrait "exhibiting this vessel and her freighter
Finding on my appointment, this day, no book, document or
as forming a single figure, composed of the most discordant
papers of any kind to inform me of what has been done by any
materials of peace and war," but said it "required the exer-
one of my predecessors, since the establishment of the Federal
cise of that cold investigating faculty which ought always to
Government, and feeling strongly the inconvenience, both to
belong to those who sit on this bench to discover its only
the nation and myself, from this omission, I have determined
imperfection; its want of resemblance." Nonetheless, Mar-
to remedy it, so far as depends upon myself, and to keep a
shall called him "the greatest man I have ever seen in a court
regular record of every official opinion I shall give while I hold
of justice."
this office, for the use of my successor.
Not as Attorney General but in private practice, Pinckney
To make the arrangements as perfect as I can I have pre-
was a busy lawyer before the Supreme Court, appearing as
vailed upon the heads of Departments to furnish me with copies
of all documents on which I shall be consulted and which will
counsel in seventy-two cases. Elected to the Senate in Decem-
be found, filed and numbered, to correspond with the numbers
ber, 1819, he remained a Senator until his death in February,
in the margin prefixed to each opinion. A copius index to this
20
THE DEPARTMENT OF JUSTICE
LEARNED IN THE LAW
21
book is also given, with reference, under various heads, to each
departments, touching upon any matters that may concern
case for greater facility in using this book.
their departments," Wirt decided to operate within the con-
Wm. Wirt.
fines of that law. Thus, he ceased giving opinions to Congress
and restricted opinion to heads of departments strictly to
Wirt's hand-kept records became the nucleus of a vast system
matters of law, becoming the first Attorney General to lay
that now makes use of every modern mechanical device to
down a policy his successors, with few deviations, have fol-
preserve official documents and correspondence.
lowed.
Wirt, a Latin scholar, when traveling carried a pocket edi.
Although he restricted his opinion-giving function, Wirt
tion of Horace. He was also an author and his Sketches of the
wrote plenty of opinions. They filled 500 pages of the first
Life and Character of Patrick Henry was published in 1817,
volume of Official Opinions of the Attorney General; none
shortly before he became Attorney General. In private prac-
of his predecessors had more than eight pages in the 1,471-
tice, Wirt participated in several of the most famous trials of
page volume. Wirt's opinions ranged over a wide field of
his day. In the treason trial of Aaron Burr, he was counsel
subjects: for example, he advised the Secretary of the Navy
for the government. With Daniel Webster and William
on methods of distributing prize money from the Lake Erie
Pinckney, he was on the winning side in McCulloch V. Mary-
victory in the War of 1812, gave opinions to President Mon-
land in which the Supreme Court upheld the power of Con-
roe and his cabinet on questions of neutrality arising from
gress to charter a national bank; in Trustees of Dartmouth
revolutions against Portuguese and Spanish rule in Latin
College V. Woodward, in which the issue was whether the
America, and dealt with the vexing problem of the sale of
legislature of New Hampshire could change the name to
public lands to private companies and the litigation that
Dartmouth University and alter its charter, he represented
arose out of it.
the legislature and Webster the college. Webster won.
As the 1828 elections approached and it became evident
Wirt's most important contribution as Attorney General
that Andrew Jackson would be the next President, the ques-
was to construe the law under which the office was estab-
tion arose whether Cabinet officers were required to resign.
lished and relate his activities to the statute. Two months
Monroe believed that all should resign except the Attorney
after he took office, he sent to President Monroe a historic
General. He wrote to Wirt: "Your duties are different. The
letter, now in the Archives of the United States, in which he
President has less connection with them, and less responsi-
defined the duties of the Attorney General and his obliga-
bility for them." However, Wirt resigned, and the only rec-
tions to other bránches of the government. The gist of what
ord of his participation in politics thereafter was his nomina-
he called "republican orthodoxy" was that in a government
tion, in 1832, as the Anti-Masonic Party's candidate for
of laws it was important that the influence of every office
President. He received Vermont's electoral vote.
should be confined within the strict limits prescribed for it
Roger Brooke Taney, the eleventh Attorney General, was
by law." Since the Judiciary Act of 1789 required that the
involved in events that shaped the United States, but not
Attorney General should "give his advice and opinion upon
especially as Attorney General. His most important partici-
questions of law when required by the President of the
pation was as Secretary of the Treasury and as Chief Justice
United States, or when requested by the heads of any of the
of the United States. As Attorney General, however, he sup-
22
THE DEPARTMENT OF JUSTICE
LEARNED IN THE LAW
23
ported President Jackson, implacable foe of the Bank of the
States Senate. He left the Senate in 1849 to become Attorney
United States, and drafted Jackson's veto message of the bill
General and resigned in 1850 upon the death of President
to recharter it. In the message, Taney disagreed with the
Zachary Taylor. As an attorney, Johnson took part in many
argument that the Supreme Court's ruling in McCulloch V.
cases involving constitutional issues. One was the Dred Scott
Maryland settled the question of constitutionality of the
case in which he was of counsel for the defense. He was a
bank and said that the authority of the Court must not be
Southern sympathizer, but regarded secession as treason. As
permitted "to control the Congress or the Executive when
a member of the Maryland House of Delegates, he worked
acting in their legislative capacities, but only have such influ-
hard to keep his state from withdrawing from the Union.
ence as the force of their reasoning may deserve."
And, during the Civil War, he approved Lincoln's suspension
On January 15, 1835, Jackson sent to the Senate the nomi-
of habeas corpus, although it applied most rigidly to his fel-
nation of Taney for associate justice of the Supreme Court.
low Marylanders. After he left public office, he defended
The Senate, still angry over Taney's position on the bank
many Southerners charged with disloyalty to the Union and
bill, refused confirmation. Later that year, however, an elec-
was attorney for several defendants in the Ku Klux Klan
tion removed enough of the Jackson-Taney foes so that
trials in South Carolina.
when, on December 28, 1835, the President nominated Taney
In 1863, Crittenden (serving his second term) was suc-
to be Chief Justice succeeding John Marshall, the nomination
ceeded by Caleb Cushing, of Massachusetts. In Essex County,
was confirmed. Taney remained Chief Justice until 1864.
Cushing had grown up at home in a distinguished company
The nine men who followed Taney in the Office of Attor-
that included Rufus Choate, Nathaniel Hawthorne, William
ney General were, in many cases, very distinguished-but
Lloyd Garrison, and John Greenleaf Whittier. His legal edu-
more for their activities before or after they took the post, or
cation consisted of a year at Harvard Law School and inter-
for their private activities while occupying the office, than for
mittent study in the office of a Newburyport attorney. He
what they contributed in the position. (Their names, along
was admitted to the Massachusetts bar in 1821, and his politi-
with those of all the Attorneys General from 1799-1967 are
cal career began in 1834 with his election to Congress. He
listed in Appendix II.)
served four consecutive terms until 1843, when he was ap-
John Jordan Crittenden, of Kentucky, served both as fif-
pointed United States Commissioner to China by President
teenth and twenty-second Attorney General. During his sec-
John Tyler. When President James K. Polk declared war on
ond term, he advised President Millard Fillmore that a
Mexico on May 13, 1846, Cushing, an enthusiastic supporter
revised Fugitive Slave Act did not conflict with the constitu-
of the conflict, spent $12,000 to raise and equip a regiment, of
tional guarantee of habeas corpus.
which he was named colonel. Before the war ended, in 1848,
The twenty-first Attorney General, Reverdy Johnson, of
he had risen to the rank of brigadier general. Five years later,
Maryland, was one of the most unusual men to occupy the
in March, 1853; he became Attorney General and an out-
office. His services as Attorney General were not noteworthy,
standing figure in the Cabinet of President Franklin Pierce.
but his other activities during a national career stamped him
Ambitious and versatile, Cushing reached out for new du-
as a foremost lawyer, diplomat, and citizen. His national
ties and was never appalled by an avalanche of work. He was
career began in 1845 when Maryland sent him to the United
careful to confine his official activities to the administration
25
24
THE DEPARTMENT OF JUSTICE
LEARNED IN THE LAW
of justice, but he brought into the Office of Attorney General
the President could not recognize that independence The Consti-
functions that had been performed by other government
dence, absolve the state from its federal obligations. government
agencies, such as the accounts of the federal judiciary, which
or Black declared, did not give the federal do so would
had been kept in the Department of Interior, and the issuance
tution, to make war on a state, and to attempt federal to govern-
of commissions to law officers, which had been done by the
Department of State. He also took over from the State De-
amount might lawfully repel direct aggression on property. war to
power to expulsion. from the Union, but the its
partment (where they had been dealt with since George
ment not, Black asserted, carry on an offensive of their
Washington's Administration) the handling of pardons and
punish It might the people of a state for the political misdeeds
petitions for executive clemency.
Cushing sent President Pierce two reports in which he out-
government. called Black the author of "Buchanan's secessionist
lined his conception of the duties of the Attorney General
doctrine," Foes and when Buchanan nominated him to be an asso- him.
and suggested modification and enlargement of the entire
justice of the Supreme Court, the Senate rejected resumed the
judicial system. Cushing believed that his office should con-
ciate Following his term as Attorney General, Black
duct the legal business of the United States and, to that end,
practice of law in York, Pennsylvania.
recommended that the Attorney General have charge of all
term of Edwin McMasters Stanton, of Ohio, who fol- of
litigation in the lower courts that involved the interests of
lowed The Black, lasted only seventy-two days-the shortest December
the federal government. His chief recommendation for the
incumbent before or since. He was appointed 1861,
judiciary was that the system be enlarged by the establish-
any 1860 by President Buchanan and resigned March 3, Secre-
ment of intermediate courts of appeal. President Pierce sent
20, Lincoln became President. Lincoln named him and
these reports to Congress. But, sixty-five years after the pas-
when tary of War, and he filled that post during the Civil War
sage of the Judiciary Act, the legislators were still reluctant
into the Administration of Andrew Johnson.
to expand the authority of the Attorney General and did not
Edward Bates, of Missouri, was a candidate for President
act upon them.
the convention that nominated Lincoln. Lincoln office ap-
Cushing was called upon to give more official opinions
in pointed him Attorney General, and he remained in that and
than any of his predecessors. His judgments filled three vol-
until November 24, 1864. Bates, a Virginian by birth,
umes of the early Opinions of the Attorney General.
anxious to avoid war with the South, advised Lincoln not do to
The dark cloud of secession was looming on the national
send provisions to Fort Sumter because he believed that could to
horizon when Jeremiah Sullivan Black, of Pennsylvania, be-
so would make war inevitable. He thought the South
came the twenty-fourth Attorney General, and his most sig-
be subjugated by closing its ports.
nificant opinion advised President James Buchanan on his
During the war, Marylanders rioted to prevent the pas-
powers to deal with states threatening to withdraw from the
of Union troops through Baltimore. Many were Justice ar-
Union. Black told Buchanan that, in their respective spheres,
sage rested and held in military custody. When Chief
the federal and state governments were supreme, and each
Taney issued writs of habeas corpus, Lincoln refused who to
was powerless to go beyond the limits set by the Constitu-
honor them. On the advice of Attorney General Bates,
tion. He advised that if a state should declare its indepen-
told him his power arose out of his obligation to suppress
27
26
THE DEPARTMENT OF JUSTICE
LEARNED IN THE LAW
the
insurrection, Lincoln suspended habeas corpus, and Con-
insisted that a number of new federal judgeships be filled
gress upheld the suspension as a wartime measure. Bates
he the basis of character and fitness, not for political Senators. reasons,
on thereby earning the enmity of patronage-minded
opposite of most
consistently opposed extension of military jurisdiction into
fields of civilian authority. He gave Secretary of State Wil-
nominees
liam H. Seward an opinion that freemen of color, if born in
"A PREPONDERANCE OF LAWYERS"
the United States, were citizens-something of a modifica-
problem in this
tion of the Dred Scott doctrine.
Gideon Welles, Secretary of the Navy in the Cabinet M. of
James Speed of Kentucky, followed Bates and held over,
President Andrew Johnson, so acutely disliked William for
day +
shortest
the New York lawyer who was Attorney General he be-
age
after the assassination of Lincoln, into the Administration of
Andrew Johnson. He wrote many opinions, including the
Evarts, months from July, 1868, to March, 1869, nuisance. that
shortest on record-twenty-eight words-relating to the
lieved eight lawyers in government generally were a
A.G.
trial of Lincoln's assassins. It read:
"It is unfortunate for the country," Welles wrote in his
opinion
"that there is such a preponderance of lawyers in our ab-
SIR: I am of the opinion that the persons charged with the murder
diary, public councils. Their technical training and extensive,
GB:
of the President of the United States can rightfully be tried by a
military court.
sorbing record practice shows unfit this them to to have be statesmen." been an unfair judgment, V"l suppose
Speed also gave an opinion that the treason trial of Jefferson
The only of Evarts, but of thousands of disciples of the lawl could get
Davis, President of the Confederate States, must be in civilian
not who have served their government with honor and distinc-
quite am
courts. (Davis was indicted but not tried and, on Christmas
tion. Although his tenure as Attorney General was brief, the
argument
Evarts was Secretary of State for four years, counsel in
on that
Day, 1868, President Buchanan pardoned him and all who
had participated in the Confederacy.)
Geneva arbitration case of 1871-72, a delegate to the Paris in
here.
Henry Stanbery, of Ohio, the twenty-eighth Attorney
Monetary Conference in 1885, and a U.S. Senator, elected
(amonst so
General, resigned to become an attorney for President John-
1891. Johnson As in a his impeachment trial, a government attorney in lawyers." don't
lawyer, he was principal counsel for President
many
son in his impeachment trial. After the trial, Johnson sought
to reappoint him, but the Senate rejected the nomination.
the treason trial of Jefferson Davis, and chief counsel for the "d mind
The Senate also refused confirmation when the President
Republican Party in the Hayes-Tilden Presidential election
nominated him as an associate justice of the Supreme Court.
dispute. All told, he was one of the most distinguished men pointing out,
William M. Evarts, of New York, one of the most distin-
of the nineteenth century.
guished lawyers of his day, had a brief tenure as Attorney
In a government of laws, it is logical that lawyers should the though,
participate in enacting, administering, and interpreting the U.S.
that I
General unmarked by any distinctive accomplishments. He
was succeeded by Ebenezer Rockwood Hoar, of Massachu-
laws. (Today, roughly two-thirds of the members of and
can
setts, the last man to hold the office of Attorney General
Senate and many members of the House are lawyers,
not
before it became the Department of Justice.
lawyers predominate, as a rule, in Cabinet posts and adminis-
a
Hoar was another who failed of confirmation when Presi-
trative agencies.)
lawyer."
dent Grant named him to the Supreme Court, largely because
Appointment to the Supreme Court is, of course, the high-
42
THE DEPARTMENT OF JUSTICE
WHO SUES FOR JUSTICE
43
arrested. Palmer was both praised and denounced for those
and brought a new era in labor relations. He argued success-
raids and other anti-Radical activities, but he was a pioneer
fully in the Supreme Court the so-called Gold Clause cases
in enforcement of laws pertaining to internal security.
that absolved the government of obligation to redeem its
securities in gold. Cummings proposed, and Congress en-
EXPANDING RESPONSIBILITIES, 1924-45
acted, a series of laws widening the federal government's
power to combat the criminal elements that became bold
Gradually, as the Department of Justice itself evolved, the
when the dry laws were repealed. Cummings found the
duties of the Attorney General multiplied. Some of the
record-keeping operations of the Department in disarray,
achievements of a sampling of men who held the post in the
and he modernized the system Wirt had begun and brought
1920's and 1930's reflect certain of the changes.
it up to date.
Thus, Harlan Stone, later to become Chief Justice of the
Frank Murphy, of Michigan, who followed Cummings,
United States, during his period as Attorney General (a posi-
was an energetic foe of official wrong-doing. He prosecuted
tion to which the distinguished New York lawyer and dean
corrupt political machines in Missouri and Louisiana and
of Columbia Law School had been appointed by Calvin Coo-
indicted U.S. District Judge Martin Manton in New York
lidge) reorganized the Federal Bureau of Investigation and
for "selling justice." During the year he served before Presi-
chose J. Edgar Hoover to head it.
dent Roosevelt elevated him to the Supreme Court, Murphy
William DeWitt Mitchell of Minnesota, who was solicitor
set up a civil rights section, the first such unit in the Depart-
general in the Coolidge Administration and was elevated to
ment of Justice.
the Attorney Generalship by President Herbert Hoover, fol-
Robert H. Jackson, of New York, who also went to the
lowed Wirt's historic precept by refusing to give the Senate
Supreme Court, served as general counsel of the Bureau of
an opinion regarding proposed railroad mergers, but he ad-
Internal Revenue, assistant attorney general in charge of the
vised the President that proposed legislation authorizing
Tax and Antitrust Divisions, and solicitor general before
Congress to make final decision on tax refunds of more than
becoming Attorney General. When he took office, the United
$20,000 would be an unconstitutional transfer to the legisla-
States was moving toward deeper involvement in World War
tive branch of a function of the executive branch. Enforce-
II; one of his most notable opinions was that President
ment of Prohibition was a burdensome duty of Mitchell's
Roosevelt's deal with the British to exchange fifty over-age
term and reorganization of the federal prison system one of
his accomplishments.
destroyers for offshore naval and air bases in the Atlantic
did not exceed the President's constitutional powers.
Homer Stillé Cummings, of Connecticut, the fifty-fifth At-
Francis Biddle, of Pennsylvania, the fifty-eighth Attorney
torney General, took office March 4, 1933, as Franklin D.
General and a direct descendant of Edmund Randolph, the
Roosevelt became President. The nation was in economic dis-
first, was solicitor general and had won fifteen of the sixteen
tress, and repeal of Prohibition had brought new problems
of law enforcement. Cummings was Roosevelt's legal adviser
cases he argued in the Supreme Court when Roosevelt ap-
in the banking crisis and throughout the recovery program
pointed him Attorney General. He was the wartime law en-
forcement officer and, immediately after Pearl Harbor, or-
that changed traditional patterns of the country's economy
dered the internment of aliens who were citizens of the Axis
44
THE DEPARTMENT OF JUSTICE
WHO SUES FOR JUSTICE
45
powers. When eight Nazi saboteurs were captured and tried
Brownell, a Nebraskan turned New Yorker, instituted pro-
before a military commission in 1942, Biddle directed the
ceedings under the Internal Security Act of 1950 to compel the
prosecution and argued successfully in the Supreme Court in
Communist Party to register with the Attorney General as a
opposition to their petitions for habeas corpus. Six of the
Soviet-dominated organization; added some 200 other groups
eight were executed, one sentenced to life imprisonment, and
classified as totalitarian, Fascist, or Communist to the list of
the other to thirty years.
organizations required to register as Communist fronts, and
FROM CLARK TO CLARK, 1945-67
set up an Internal Security Division in the Department to pros-
ecute violations of the internal security laws. After the school
Thomas Campbell Clark, of Texas, followed Biddle. He
segregation cases were decided by the Supreme Court in 1954,
had been coordinator of Alien Enemy Control of the West-
the first lawsuits to implement those judgments were filed by
ern Defense Command and chief of the Civilian Staff for
Brownell. He also intensified the Department's drive on crime,
Japanese Relocation in 1942, and, before becoming Attorney
and several notorious racketeers were sent to jail while he held
General, he had served as head, first of the Antitrust Division
office. Departmental antitrust policies were studied and rede-
and then of the Criminal Division of the Department.
fined and a vigorous program of enforcement instituted during
President Harry S. Truman appointed Tom Clark, as he
his incumbency.
prefers to be called, to the Supreme Court in August, 1949,
William Pierce Rogers, Brownell's deputy attorney gen-
and named a Senator from Rhode Island, J. Howard Mc-
eral succeeded to the top job when Brownell resigned in
Grath, to the post of Attorney General.
November, 1957. Under Attorney General Rogers, the Civil
In the early days of the Truman Administration, there was
Rights Division was established in 1958, and suits to enforce
much talk of scandal and corruption in Washington. Truman
provisions of the Civil Rights acts, especially those pertain-
ordered a government-wide investigation under the supervi-
ing to voting rights, were instituted in Southern states.
sion of the Department of Justice, but he brought in New-
Rogers advised President Eisenhower about his constitu-
bold Morris, a silk-stocking New York lawyer, to conduct it.
tional authority to send troops to Little Rock, Arkansas, to
This action on the President's part outraged McGrath,
enforce compliance with school desegregation orders of the
a former solicitor general-especially when Morris an-
federal courts and assigned an assistant attorney general to
nounced that the Justice Department would be the first tar-
counsel troop commanders and civilian officials on the legal
get of the investigation. Truman settled the ensuing and
phases of the Little Rock operation. Rogers also strength-
bitter McGrath-Morris feud by dismissing both men. After-
ened the Organized Crime and Racketeering Section of the
ward, a House Judiciary subcommittee inquired into the op-
Criminal Division and directed investigation and prosecu-
erations of the Department and found some things to criti-
tion of the overlords of crime, some of whom were aliens and
cize, but produced no general condemnation of McGrath's
subsequently deported. During Rogers' term, the FBI
official conduct.
tracked down several spies-the most important being Ru-
Internal security, civil rights, and organized crime and
dolph Abel, a Soviet agent, who was convicted and given a
racketeering were national problems when Herbert Brow-
thirty-year prison sentence. In the antitrust field, indictments
nell, Jr., became the sixty-second Attorney General.
were obtained against General Electric Company, Westing-
DOJ
KF
5106
Vol. XII
No. 12
A25
,
R45
THE
JOURNAL
of the
BAR ASSOCIATION
of the
District of Columbia
Edmund Randolph, Trail Blazer
by J.S. Easby-Smith
Report of Subcommittee on Traffic Courts
Legal Aid Wants Reference Lawyers
Report of Communications Committee,
Inter-American Bar Association
Index for Volume XII, 1945
Next Meeting Bar Association
Mayflower Hotel, January 8, 1946
DECEMBER, 1945
WASHINGTON, D.C.
OF JUSTICE
DEPT
MAR1 2 1981
LIBRARY
Edmund Randolph-Trail Blazer
By JAMES S. EASBY-SMITH
Past President, Bar Association of the District of Columbia
Edmund Jennings Randolph, the first Attorney General of
the United States, was an aristocrat in the best sense of that
term. By ancestry and breeding, by mental and physical endow-
ments, by intellectual accomplishments, by high character and
purity of life and personal conduct, and by unfaltering moral
courage, he was, as he deserved to be, a leader among men, par-
ticularly in his chosen profession.
The son of John and Ariana (Jennings) Randolph, both
names being indicative of those strong strains of blood that have
coursed through the veins of so many able Americans to this
day, he was born at Williamsburg, Virginia, August 10, 1753.
He came of a long line of distinguished lawyers both in England
and Virginia, and grew to manhood while his father was the
King's Attorney General for Virginia, his grandfather, Sir John
Randolph, the only Virginian ever knighted, having held the
same office. He was graduated from William and Mary College
at the age of nineteen, then studied law and began practice in
1773. He was aide-de-camp to Washington in 1775 and the
next year was the youngest member of the Virginia Convention
of '76. The prominent part he there achieved led to his elec-
tion, notwithstanding his youth, as Attorney General of Vir-
ginia and Mayor of Williamsburg. In 1779 he was elected a
member of the Continental Congress but resigned because his
duties as Attorney General required his presence at home; but
was reelected and served till 1782 when he again resigned. In
1786 he was elected Governor of Virginia, and the same year -
was a delegate to the famous Annapolis Convention, the pre-
cursor of the Constitutional Convention of Philadelphia.
In 1787 while still governor he was elected a member of the
Constitutional Convention where he was one of the most promi-
nent members, taking a leading part in the discussions concern-
ing the judiciary provisions of the Constitution and in the draft-
ing of those provisions.
He was an intense federalist and was sharply accused of
attempting to deprive the States of all their powers. Because
[415]
he did not approve some of its features he refused to sign the
Constitution; but he strongly urged its ratification by Virginia,
taking a course opposite to that of Patrick Henry who fought
and voted against ratification by the Virginia Convention on
account of his opposition to its taxing provisions and, principally,
because of the failure of the Constitution to limit the tenure of
President to a definite term or terms, arguing that this might
lead to dictatorship.
When Randolph returned to Virginia he became a member
of the Assembly where he was occupied, to the exclusion of
almost everything else, in the preparation and codification of
the laws of Virginia.
This, in brief, is a sketch of the man whom Washington
urged to come into his cabinet as the first counsellor, the first
adviser, to break "his way without assistance into a subject full
of difficulty and replete with danger," to interpret and expound
new and untried laws for a government which was then little
more than an experiment.
Of course he was greatly aided by the logic of events; for
he himself had drafted the judiciary features of the Constitution,
and the Judiciary Act was founded on Virginia law. But that
he performed his duties without a single mistake, that he wrote
opinions and secured decisions in the Supreme Court which are
today cited as the highest authority, and that he shaped, without
precedent to guide him, the legal branch of the Government, are
proof, if there were no other, that he was one of the many great
lawyers that the English speaking peoples have produced. And
that he performed these same duties with a loyalty to his coun-
try and to his chief that sacrificed ease and comfort and the
opportunity of amassing wealth; that never shrank from sup-
porting or opposing either Alexander Hamilton, his antithesis
in origin and training but his equal in intellectual endowment,
or Thomas Jefferson, his fellow Virginian but political antago-
nist, as he believed either the one or the other was right or
wrong; that ignored personal abuse and quietly accepted an
amendment to the Constitution which was aimed at him and
nullified one of his greatest victories in the Supreme Court;
that knew neither party reward nor the fear of popular clamor
[416]
-all this clearly shows him to have been one of the purest of
the patriots who were raised up in defense of American liberty.
Randolph was commissioned Attorney General September
26, 1789, and entered upon the duties of the office February
2nd, 1790. In December of 1793 he retired from that office
to succeed Jefferson as Secretary of State. He resigned this office
August 19th, 1795, after he had lost the confidence of Wash-
ington as a result of a plot of certain other members of the
cabinet to charge, without truth, and to attempt to prove, that
he had engaged in an intrigue with the French Minister.
His service, both as Attorney General and as Secretary of
State, was particularly brilliant. After returning to private life
he practiced law until a short time before his death, September
12, 1813.
The most notable incident in his private career was his suc- -
cessful defense of Aaron Burr in the treason trial of 1807
wherein Randolph was opposed by William Wirt, one of his
distinguished successors, who led for the prosecution.
So much for a brief life of Randolph. Now for a glimpse
at the legal history of his time.
The first Congress of the United States met at New York on
March 4th, 1789, and its first session continued to September
29th of the same year. This session was devoted entirely to the
enactment of laws to provide the machinery for the permanent
Federal Government contemplated by the Constitution; the
most important of which were a tax law, a law for registering
and clearing vessels and for regulating the coasting trade, the
laws establishing the army and the executive departments, and
the famous Judiciary Act. The Department of Foreign Affairs,
with a Secretary of Foreign Affairs (which designations were
changed by the Act of September 15th, of the same year, to
Department of State and Secretary of State) was created by
the Act of July 27th, 1789, the War Department with a Secre-
tary of War by the Act of August 7th, and the Treasury Depart-
ment with a Secretary by the Act of September 2nd.
The third Article of the Constitution provided that: "The
judicial power of the United States shall be vested in one Su-
preme Court, and in such inferior courts as the Congress may,
from time to time, ordain and establish," etc. As early as.
[417]
June 12th Richard Henry Lee reported a bill to carry into effect
these constitutional provisions by establishing the judicial courts
of the United States; but the bill was debated at such length that
it did not finally pass both houses of the Congress and receive
the President's approval until September 24th. This Act pro-
vided for a Supreme Court to consist of a Chief Justice and
five Associate Justices; divided the United States into thirteen
districts and three circuits; created the circuit and district courts
and defined and prescribed their jurisdiction and procedure; pro-
vided for the appointment of United States district attorneys
and marshals; and finally created the office of Attorney General
and prescribed his duties in the following concluding paragraph:
"And there shall also be appointed a meet person, learned in the
law, to act as attorney-general for the United States, who shall be
sworn or affirmed to a faithful execution of his office; whose duty
it shall be to prosecute and conduct all suits in the Supreme Court
in which the United States shall be concerned, and to give his
advice and opinion upon questions of law when required by the
President of the United States, or when requested by the heads
of any of the departments, touching any matter that may concern
their departments, and shall receive such compensation for his
services as shall by law be provided."
Thus was the office of Attorney General created and thus the
duties of the office defined. Among the many defects of the
law, which soon became apparent but were not remedied for
many years, was the failure to give the Attorney General any
control or supervision of district attorneys or of suits affecting
the United States in the inferior courts. Nor was any sort of
an establishment provided for the transaction of his business,
either in the way of quarters or clerical assistance.
The office was the fourth cabinet office in the order of crea-
tion, the offices of Post-Master General, Secretary of the Navy,
Secretary of the Interior, Secretary of Agriculture, Secretary of
Commerce and Secretary of Labor being subsequently created
in the order named. But not being at the head of a department
until the creation of the Department of Justice in 1870 the
Attorney General was ranked below all the other cabinet offi-
cers until his proper rank as fourth in the cabinet was restored
by the Act of January 19th, 1886, which provides, in case of
the removal, death, resignation or inability of both the Presi-
[418]
dent and Vice President, that the duties of the office of President
shall be performed by one or the other of the cabinet officers
in the order named in the Act.
The Congress had fixed the annual salaries of the heads of the
departments as follows: State and Treasury $3500, War $3000;
but by the Act of September 23rd, 1789, the salary of the Attor-
ney General was fixed at $1500. The Senate had provided
$2000 but this amount was reduced by the House. This was
not done, as has sometimes been stated, because the House
desired to punish Randolph's federalism, for the law was passed
before the Judiciary Act and three days before Washington
nominated Randolph.
But the meanness of the Congress in providing this ridicu-
lously small salary, especially as compared with those of the
other cabinet officers, was due to the arguments that the duties
of the Attorney General would be very light, that he could
engage in private practice, and that the prestige of the office
would be so great that it would be well worth the while of any
lawyer to accept the office with only a nominal compensation.
The signature of the President to the Judiciary Act was hardly
dry when he sent to the Senate, together with his nominations
for Chief Justice and Associated Justices of the Supreme Court,
the name of Edmund Randolph of Virginia for Attorney Gen-
eral. The appointment was promptly confirmed and Randolph's
commission was issued on September 26th, and was sent to
him by Washington in a letter dated September 27th urging
him to accept the appointment. In this letter Washington said:
"The salary of this office appears to have been fixed at what it is
from a belief that the station would confer preeminence on its
possessor, and procure for him a decided preference of profes-
sional employment."
Washington had known Randolph from boyhood and had
declared that he preferred him as Attorney General to any per-
son with whom he was acquainted. Indeed, after what we
have seen about Randolph, it is difficult to imagine anyone
better fitted for an office than Randolph was for the Attorney
Generalship of the new constitutional government.
On October 8th Randolph replied to Washington accepting
the appointment but stating that his duties in the Virginia As-
[419]
sembly were so important that he could not leave immediately,
and hoped to be in New York by the middle of January. On
February 2nd, 1790, Randolph, who had arrived in New York,
presented himself before the Supreme Court where his commis-
sion was read and the oath of office administered. The Supreme
Court promulgated rules and then adjourned. It met again for
the August term but there being no business immediately ad-
journed. These two short sessions were held in the upper room
of the old Exchange in New York.'
But if there was no business for the Supreme Court there was
an abundance for the Attorney General and from the very begin-
ning his duties were arduous and physically laborious. As the
first Attorney General he had not only to shape his own office,
adapt the constitutional provisions and the Judiciary Act to
their work, study out and decide upon the vexatious questions
relating to the line of demarcation between the jurisdiction of
the federal and state governments and their respective courts,
and constantly give opinions and advice, both written and oral,
to the President and to the heads of the departments, concerning
internal affairs, but he was also obliged to advise the Secretary
of State upon the questions of international law arising out of
the unsettled relations with foreign governments following the
War of the Revolution. In addition to this, no provision having
been made for clerical assistance, he was obliged to perform all
the physical labor connected with his office. In a letter written
during the first year of his service he says:
"I am a sort of mongrel between the State and the United
States; called an officer of some rank under the latter, and yet
thrust out to get a livelihood in the former-perhaps in a petty
mayor's or county court.
I am ready to be confined to the
federal service-how extensive soever; though, by the way, I do
more in that way with my own hands than one of the Depart-
ments with its clerks."
It has been stated erroneously in some works of presumably
good authority that the Attorney General was not a member
of the cabinet until 1814. This is a mistake, for from the
beginning the Attorney General has been a member of the
cabinet, frequently the most important and influential. The
cabinet of the President has no legal entity as such, no duties,
[ 420 ]
rights or privileges beyond those which attach to the position
of each member as the head of his department. The President
is not obliged to ask for the advice of his cabinet or to be gov-
erned by it, or to be controlled in his actions by its vote on any
question. George Mason, in his Notes on the Constitution,
said:
"The President has no constitutional council, (a thing unknown
in any safe and regular government). He will therefore be un-
supported by proper information and advice, and will be directed
by minions or favorites; or he will become a tool to the Senate; or
a Council of State will grow out of the principal officers of the
great departments-the worst and most dangerous of all ingre-
dients for such a Council in a free country."
In confirmation of a portion of this partly prophetic declara-
tion of Mason, Washington did, almost immediately, form an
advisory council of the heads of the three departments and the
Attorney General. During both his administrations he endeav-
ored to divide these offices between the two opposing political
parties, Hamilton and Randolph representing the federalists
and Jefferson and Knox the republicans or democrats, in the first
cabinet. Washington was, at first, generally governed or influ-
enced by the opinion of the majority of his cabinet, even against
his own judgment. Sometimes he followed the advice of one
against the others. Finally he came to rely almost wholly upon
the advice of Randolph against all the others, even Hamilton,
whose last victory was the approval by the President of his bank
scheme. The United States Bank was created by the Acts of
February 25th and March 3rd, 1791. Before their passage Ran-
dolph wrote a long and important opinion in which he argued
against the constitutionality of the acts; which finally received
their death blow at the hands of President Jackson and of Roger
Taney, one of Randolph's greatest successors.
As stated above, this was Hamilton's last victory over Ran-
dolph, beside whom, in questions of law, he was a pigmy; and
Randolph soon acquired a position of mastery in the government
councils until finally, as a result of a most despicable intrigue
and conspiracy on the part of other members of the cabinet, he
lost the confidence of Washington and retired from the office
of Secretary of State in August of 1795. So great did the influ-
ence of Randolph become at one time that Jefferson, then Sec-
[421]
retary of State, wrote to Madison: "The government is now di-
rected solely by Randolph."
On July 20th, 1790, Randolph had rendered to the President
an important opinion on the question of the delivery of fugitives
from justice from one State to another. This and many other
important opinions of the early Attorneys General are not, unfor-
tunately, published in the official series of opinions of the Attor-
ney General.
The Act of August 12th, 1790 (and subsequent laws) made
the Attorney General a member of the Sinking Fund Commis-
sion, and very materially augmented his labors. At this time
Randolph was burdened not only with his many duties, but he
found it impossible to live on the meagre salary provided by
the Congress. In a letter to an intimate friend, from which an
extract has already been quoted, he wrote: "With every frugality,
almost bordering on meanness, I cannot live upon it as it now
stands." Before he moved to New York with his family he was
compelled to mortgage his Virginia home to secure the means
of making the change. In New York he was obliged to pay
$250 per annum for a small seven room cottage in the suburbs,
and found other living expenses proportionally high.
By the Act of July 16th, 1790, the seat of government was
changed to Philadelphia, there to remain from December, 1790,
to December, 1800, then to be removed to the District of
Columbia. This change necessitated additional expense which
Randolph endeavored to eke out by taking three young men
to tutor in Philadelphia, one of them his nephew, John Ran-
dolph of Roanoke, another Lawrence Washington, the Presi-
dent's nephew.
Early in December, 1790, the House of Representatives, by
resolution, requested the Attorney General to report such mat-
ters, relative to the administration of justice under the authority
of the United States, as might require to be remedied, and such
provisions in the respective cases as he should deem advisable.
Although no part of his duty Randolph on December 27, 1790,
transmitted to the house a report covering more than fifteen
folio pages in small type in "American State Papers." In this
report the whole judiciary system is ably and exhaustively dis-
cussed, and though his recommendations were not immediately
[422]
carried into effect yet many of the changes recommended by him
were made, years afterwards.
The Supreme Court met for the February term 1791 in Phila- --
delphia, and for ten years held its sessions in the South Chamber,
upstairs, of the old City Hall, at Fifth and Chestnut streets. Con-
gress had not provided any office for the Attorney General but
it is probable that Randolph had at least desk room in the
Supreme Court quarters.
The Congress at last began to be proud of the success of the
Attorney General, to appreciate his ability, and to realize the
extent and importance of his labors; and on March 3rd, 1791,
voted an additional sum of $400 to him, thus increasing his
salary to $1900; which was maintained until 1797, when, on
March 2nd, the salary was increased to $2000.
At February term, 1791, of the Supreme Court, there ap-
peared a case of an individual against a State, namely Vanstorp-
horst V. The State of Maryland (2 Dall. 401). This was the
first case in which the Supreme Court took any action and was
the occasion of the first appearance before the court of the
Attorney General except to present his commission and move
admissions to the bar. On motion of Randolph the State was
ordered to plead. At the August term, 1791, in this case "the
Attorney General (Randolph) moved on behalf of the plain-
tiffs that a commission should issue to examine witnesses in
Holland; to which the opposing counsel assented, although the
commissioners were not named. But-by the Court-We will
not award the commission until the commissioners are named.
This being done the commission was granted."
During 1791 the Attorney General rendered a number of
important opinions in opposition to some of the plans of the
Secretary of the Treasury concerning the public debt and the
United States Bank; and several important opinions upon ques-
FACTS-THE GUIDING HAND OF LAW!
Fifty-seven years of complete, confidential
Investigation Service. Secret Sound Recordings.
We may have a suggestion in that difficult case.
BRADFORD INVESTIGATION SERVICE
NAtional 4610
[423]
tions of international law; and December 26th, 1791, he ad-
dressed the following letter to the President:
"Sir: The office which I have the honor of holding under the
United States, has presented, in the course of its execution, some
defects which; I trust, will not be deemed unworthy of a remedy.
If, however, they were only personally inconvenient, I should
certainly forbear to trouble you with a recital of them; but while
I consider them injurious to the public service, I can not satisfy
myself of the propriety of withholding them from you.
"Many instances have occurred in which the heads of the De-
partments have requested that suits should be prosecuted in
different States under my direction. It has always been my
inclination to conform to their wishes; but the want of a fixed
relation between the attorneys of the districts and the Attorney
General, has rendered it impossible for me to take charge of
matters on which I was not authorized to give instructions.
"From the same source it may frequently arise that the United
States may be deeply affected by various proceedings in the inferior
courts, which no appeal can rectify. The peculiar duty of the
Attorney General calls upon him to watch over these cases; and
being in the eye of the world, responsible for the final issue, and
to offer his advice at the earliest stage of any business; and indeed,
until repeated adjudications shall have settled a clear line of parti-
tion between the federal and State courts, his best exertions can
not be too often repeated, to oppose the danger of a schism. For
this purpose the attorneys for the districts ought, I conceive, to be
under an obligation to transmit to him a state of every case in
which the harmony of the two jurisdictions may be hazarded, and
to communicate to him those topics on which the subjects of
foreign nations may complain in the administration of justice.
"Perhaps, too, in the review which the President takes of the
affairs of the Union at the opening of each session of Congress,
the judicial department will be comprehended. But the Attorney
General, who ought to be able to represent the true situation of
it, must be forever incompetent to the task, until he may offi-
cially, and with the right of expecting an answer, propound his
inquiries to the district attorneys.
"I might extend this enumeration much further; but I will
only add, that the opinions which the Attorney General gives are
many in number and often lengthy. From this consideration,
united with the foregoing, the reasonableness of allowing him a
transcribing clerk will, I hope, be obvious.
"Permit me, Sir, to request you to forward to Congress the
subject of this letter, in the manner most agreeable to yourself.
I have taken the liberty of addressing it to you, not with an idea
of thus obtaining your sanction, but from an impression that the
[424]
application of an executive officer for the reform of his office
ought not, of his own accord, to be laid before the legislature.
"I have the honor, Sir, to be, with the most respectful attach-
ment, your most obedient servant,
"EDMUND RANDOLPH.
"To the President of the United States."
The President on December 28, 1791, sent the following spe-
cial message to Congress:
"United States, December 28, 1791.
"Gentlemen of the Senate and of the House of Representatives:
"I lay before you, for your consideration, the copy of a
letter which I have received from the Attorney General of the
United States.
"GEO. WASHINGTON."
On January 18th, 1792, Mr. Lawrence, from the House
Committee, submitted a favorable report recommending legis-
lation to carry into effect all Randolph's recommendation, and
a provision for employing a clerk.
Despite the letter of the Attorney General, the message of
the President and the favorable report of the House Committee,
the Congress took no action. Twenty-seven years elapsed before
any allowance was made for a clerk and seventy before the
Attorney General was given supervision over district attorneys.
The business of the Supreme Court was now increasing. At
the August term, 1791, the Attorney General appeared for the
defendants in the case of The State of Georgia V. Brailsford et al.
(3 Dall. 1). At the August term, 1792, he applied for a
mandamus to the Circuit Court for the District of Pennsylvania
to proceed in the case of William Hayburn who had applied for
a pension under the Act of March 23rd, 1792. The court
expressed its doubt of the right of the Attorney General to make
this application ex officio, and directed him to state the principles
on which his right to make the application should be supported.
"The Attorney General thereupon entered into an elaborate
description of the powers and duties of the office." Of this,
unfortunately, there is no trace except its mention by the
Supreme Court reporter. The court then consented to hear his
argument, and took the matter under advisement, finally deny-
ing the motion on the ground that the Congress had no right to
[425]
assign to the judiciary any but judicial duties, and that the
pension law requiring the United States Circuit Courts to act as
referees in pension cases was therefore unconstitutional.
The Congress immediately provided relief of another nature
for pensioners.
Some time after this Randolph writing to Washington con-
cerning the Supreme Court and its progress, said: "It is much
to be regretted that the judiciary, in spite of their apparent firm-
ness in annulling the pension law, are not what some time hence
they will be-a resource against the infractions of the Consti-
tution on the one hand, and a steady asserter of federal rights
on the other."
In October, 1792, the Attorney General, by order of the
President, attended the Circuit Court of Yorktown, Pennsyl-
vania, and was paid $54 for his expenses.
The first case of very great importance to come before the
Supreme Court was that of Chisholm (a citizen of South Caro-
lina) against the State of Georgia (2 Dall. 419). The Attorney
General appeared for the plaintiff, and upon the refusal of
Georgia to appear or plead, he moved that unless Georgia
entered her appearance at the next term judgment be entered
by default. Georgia refused to recognize the jurisdiction of the
court. Randolph made a brilliant argument in support of his
motion and the Supreme Court sustained all his contentions,
holding that under the second section of Article III of the Con-
stitution a State might be sued by an individual citizen of any
other State, and in such suit judgment might be entered in
default of an appearance. The argument of Randolph and the
decision of the court brought down upon both a shower of abuse
from the anti-federalists throughout the whole country, and in
answer to popular clamor the Congress, on December 2nd,
1793, adopted the Eleventh Amendment to the Constitution,
which was subsequently ratified:
"The judicial power of the United States shall not be con-
strued to extend to any suit in law or equity, commenced or prose-
cuted against one of the United States by citizens of another
State, or by Citizens or Subjects of any Foreign State."
So the first great victory of the Attorney General was a
barren one. Ninety years afterwards the same old question was
[426]
threshed out again in the Supreme Court in Louisiana V. Jumel
(107 U.S. 711).
In April, 1793, the Attorney General was required to give
opinions upon the propriety of the arrest of certain Americans
accused of violating international law and the treaty with Great
Britain by enlisting on a French privateer equipped at Charles-
ton within American jurisdiction. He advised their prosecu-
tion, and although a jury acquitted the only defendant brought
to trial, Randolph's opinion was a correct exposition of the
law and furnished an important precedent.
In May of the same year he wrote an important opinion on
the British demand for restitution of a prize on the high seas
by a French privateer also fitted out at Charleston. All the
members of the cabinet were invited to offer opinions on the
subject, but Washington preferred that of Randolph, who, after
an elaborate argument, advised that the British demand be
denied.
This was the beginning of the long fight in which the United
States was involved with Great Britain on the one hand and
France on the other. Randolph alone of the cabinet officers
was friendly to France, and counselled resistance to British
demands. His advice during this early period was wise, and it
is now easy to perceive that but for the destruction of his useful-
ness, after he became Secretary of State, by a conspiracy of other
members of the cabinet, the trouble with France never would
have occurred, the Jay-Greenville treaty with Great Britain, with
its humiliating concessions, would not have been ratified, and
the War of 1812 probably would have been avoided.
It may. not be out of place here to state briefly that Randolph,
after he became Secretary of State and while the ratification of
the Jay-Greenville Treaty was pending, was accused of engaging
in a corrupt intrigue with the French Minister, Fauchet (a crea-
ture of Robespierre and a man of little character), to further
French interests at the expense of the British. The charge was
based upon the contents of a dispatch of Fauchet to his govern-
ment, captured by a British vessel, and transmitted through the
British Minister at Washington to the pro-British members of
the Cabinet and by them communicated to Washington. On its
face it raised a suspicion against Randolph, which would have
[ 427 ]
been swept away by other dispatches also captured and in the
hands of the British Minister, the contents of which were well
known to the members of the Cabinet who were opposed to
Randolph, and suppressed by them. Washington's suspicions
against Randolph were communicated to him in such a manner
that he immediately and indignantly resigned the Secretaryship
of State (August 19, 1795) and prepared and published a vindi-
cation of himself. The whole subject is ably and exhaustively
treated in Dr. Moncure D. Conway's Omitted Chapters of His-
tory Disclosed in the Life and Papers of Edmund Randolph, an
admirable work and a noble and complete vindication of one
of the grandest characters of America.
In addition to his other duties the Attorney General was
required, in the latter part of 1793, to prepare the President's
message to the Congress. As it had. to deal chiefly with foreign
affairs it ought to have been prepared by the Secretary of State,
but Jefferson was unwilling to assume the responsibility.
Shortly afterwards Jefferson retired from the Cabinet and
Randolph was appointed Secretary of State, assuming the duties
of that office January 2nd, 1794, leaving the office of Attorney
General vacant.
But his work was accomplished.
He had clearly established and marked out the duties and pre-
rogatives of the office of Attorney General, he had safely directed
the Government through its first critical years, he had seen the
Supreme Court and the Circuit and District Courts organized
and properly started and had estabished such precedents as to
for expert
SHORTHAND REPORTING
and NOTARY PUBLIC SERVICE
Telephone: NAtional 2369 - NAtional 2303
AFFILIATED COURT & CONVENTION REPORTERS
H. S. MIDDLEMISS, Coordinator
BURDELLA E. SCARBOROUGH, Notary Public
408-10 COLUMBIAN BUILDING
[428]
make it easy for his successors to walk in the path which he had
blazed in the virgin forest of government and jurisprudence.
It is not any function of this paper to narrate the career of
Edmund Randolph as Secretary of State or to follow him into
private life, to which he retired, to practice law, when he left the
State Department. But one incident of his private practice is
so integral a part of American history and so pregnant with the
impartial administration of American justice that it cannot
properly be omitted-that is, Randolph's defense of Aaron Burr.
It was during Attorney General Rodney's term of office that
Burr was prosecuted for treason. All the power of Jefferson,
then President, and his administration, was directed towards
securing the conviction of Jefferson's arch enemy. It was the
determination of Jefferson to this end that brought to a culmi-
nation the bitter personal and political antagonisms between
him and the great Chief Justice of the United States-John
Marshall.
Rodney directed all the preliminaries of the prosecution,
appeared in the United States Circuit Court at Richmond and
personally conducted and argued the case, being assisted by
George Hay, United States Attorney for the district of Virginia,
the eminent William Wirt of Maryland, afterwards Attorney
General, and other able counsel. As is well known, Jefferson
used every means in his power to arouse the entire country
against Burr and to procure his conviction and execution. Chief
Justice Marshall "went on circuit" to Richmond to preside at
the trial and to see that justice was done. Rodney, Wirt and
Hay prosecuted and Burr was defended by Randolph and John
Wickham. The result-acquittal on all charges of treason
and misdemeanor.
What a scene this trial presented, the most famous in the
annals of American criminal jurisprudence! A former Vice
President of the United States on trial for his life, charged with
treason; the great Chief Justice presiding; and Rodney and Wirt,
present and future Attorneys General, pitted against Randolph,
former Attorney General; all the chief actors including the
defendant himself, who took part in the arguments, being among
the greatest lawyers of their day. It was fortunate for Burr that
Marshall was there to expound the law and rule on the admis-
[429]
sibility of testimony. Wirt, speaking afterwards of the trial,
said: "Marshall has stepped in between Burr and death." And
Burr, facing one of the many tragedies of his tragic life, from
the fatal duel with Hamilton through the narrow failure of
election to the Presidency to the mysterious loss at sea of his
only and darling daughter, Theodosia! It would take a Sophocles
to envision and relate them.
TERMINAL NOTE: The writer of the foregoing paper has not deemed
it necessary to encumber the text or margins with references to authori-
ties for the statements of fact therein. Suffice it to say that, generally,
they are garnered from various histories of the United States and of
the Colonies, particularly Virginia, from The Federalist and other pub-
lished accounts of the proceedings of the Constitutional Convention,
from the Journals of Congress (Continental), from the Annals of Con
gress, from The Congressional Globe and The Congressional Record,
from The Life and Writings of Washington and also of Jefferson, from
the Supreme Court Reports, from unpublished records and documents
in the archives of the Department of Justice, and last, but not least,
from that spendid work of Dr. Moncure D. Conway, Omitted Chapters
of History Disclosed in the Life and Papers of Edmund Randolph, one
of the outstanding examples of the finest in American biographical
literature; which the writer heartily commends to all those who desire
to know more of Randolph and of the early history and development of
American federal jurisprudence.
[ 430 ]
DOJ
JK
FEDERAL JUSTICE
873
C8
Chapters in the History of Justice and
the Federal Executive
BY
HOMER CUMMINGS
ATTORNEY GENERAL OF THE UNITED STATES
AND
CARL McFARLAND
SPECIAL ASSISTANT TO THE ATTORNEY GENERAL
OF THE UNITED STATES
STATES
JD RANDOLPH
the Department of Justice
NEW YORK
THE MACMILLAN COMPANY
1937
USTICE
THAT THE LAWS BE FAITHFULLY EXECUTED 499
for judicial office and of officers
tion for the whole department are supervised by separate officers
including district attorneys and
who function between the Attorney General and the Assistant Attor-
inder the supervision of a sepa-
neys General. There is no single officer, however, to correlate and
tice.
relieve the Attorney General of the supervision of countless matters
the last century were normally
of investigation and trial work of the department, though Attorney
eys General whose scant funds
General Bonaparte once proposed that there be a "Chief Counsel"
y carefully. The employment of
in the department."
rly troublesome matter. There
With a change of administration, and more particularly a change
n appointed Judge Bibb in 1850.
of the political party in power, the Attorney General and his prin-
the Administrative Assistant to
cipal assistants change. The President's wishes are generally respected
ich matters as the clerical force,
in the appointment of the Attorney General. In the field, the rule of
lies, records, library, and the
senatorial courtesy gives individual Senators great powers in the
selection of district attorneys and marshals, an effective veto which
are the cumulation of a century
imports local politics into the administration of federal justice.
gress, custom, and necessity have
Yet there has been an effort to avoid partisan administration.
g duties of the Assistant to the
"The office I hold," said Attorney General Bates, "is not properly
ng course of development. The
political, but strictly legal; and it is my duty, above all other minis-
d at the suggestion of Attorney
ters of State, to uphold the Law, and to resist all encroachments,
neral Bonaparte in 1907 recom-
from whatever quarter, of mere will and power." President Cleve-
Counsel as more indicative of
land in 1886 issued an order prohibiting political activity to all in the
ney General McReynolds pro-
federal service, and Attorney General Garland directed federal law
Attorney General, and until
officers to comply with its requirements. "Office holders are the
y General headed the work of
agents of the people-not their masters," said the President. "Not
nent.
only is their time and labor due to the government but they should
two general bases of depart-
scrupulously avoid in their political action as well as in the discharge
to subject matter, such as taxa-
of their official duty, offending by a display of obtrusive partisan-
ig to the stages or functions in
ship." The Attorneys General and the Presidents have continued, to
h as investigations and trials,
a greater or lesser extent, to enforce the rule that, by the force of his
Neither basis of organization
With the growing demands of the federal legal system the Attorneys General
has been grouped roughly into
will undoubtedly find it-necessary to free themselves of direct supervision over trials
and investigations. In addition to the Solicitor General for the Supreme Court and
particular fields, each under the
appellate matters generally, the Assistant Solicitor General to prepare opinions for
the Attorney General, and an Assistant Attorney General to have charge of personnel
General reporting directly to
and administration, there might also be a Counsel General as chief counsel to super-
vise all the trial and investigative work of law enforcement. The "divisions" charged
eals, opinions, and administra-
with particular fields of public law might be placed under permanent non-political
Assistants to the Attorney General. Four major officers might thus replace the present
29, 66; 1934, 15; 1935, 17.
nine.
1921, 122-128; 1923, 68; 1934, 15;
40 Kennedy, op. cit., II, 221-222; see, for example, the stalemate over the appoint-
ment of a district attorney for Wisconsin, letters exchanged between La Follette and
Origin and Development of the Office
Wickersham, Jan. 17 and 19, Feb. 11 and 14, and May 30, 1911, Pers. Files, Wis.;
70 Cong. 2 Sess.
National Commission on Law Observance and Enforcement, Report on Prosecution, 9.
JUSTICE
THAT THE LAWS BE FAITHFULLY EXECUTED
513
General the duty of giving opinions
him beforehand to their ends, so as to bar all future deliberation." 81
im by the President and heads of
Others have been even less charitable toward their Presidents.
t of Justice Act of 1870 amplified
Curious in another way was President Taft's order setting up a
amusing
ttorney General to delegate to the
presidential court to determine the much mooted question under the
ting of opinions except where con-
pure food laws, "What is whiskey?" Solicitor General Bowers was
story
directed to act as a virtual master in chancery to hear the evidence.
about
ferson wrote James Madison that
After taking testimony for two weeks and hearing arguments for two
A.G. and
ected by Randolph," he was not
days more, he submitted a report to the President. He found the defi-
tabt
inions as Attorney General. The
nition laid down by Attorney General Bonaparte too narrow, though
he did not fully accept the broad definition which the distillers had
deciding
iduals or other officers of govern-
urged. They, in true judicial form, filed exceptions to the Solicitor
"What is
on questions of law, but he also
olicy and discretion. His official
General's conclusions.
Whiskey?"
eir councils the Attorney General,
Summoning the Attorney General and the Secretary of Agricul-
institutions, may assume a position
ture to sit with him, the President then heard arguments by distin-
guished counsel for two days. "I want to say that it is not usual for
nizes that the President may require
the President, I think, to give hearings of this sort," he said in open-
any of the executive departments;
ing the proceedings at the White House, "but this is in deference to
: the time of Washington, for the
a former experience." After the arguments, he read the 1242 pages
orney General and the Secretaries
of testimony taken by the Solicitor General and wrote an opinion in
: deliberation." So President Lin-
the approved judicial manner, extending the definition of whiskey be-
1 Bates' opinion whether it was
yond that recommended by Bowers. "This opinion will be certified
"This is not a question of lawful
to the Secretary of the Treasury, the Secretary of Agriculture, and the
easier
, "but of prudence and patriotism
Secretary of Commerce and Labor to prepare the regulation in
to have
a political matter as were so many
accordance herewith, under the pure-food law," he concluded."
a taste
sident Lincoln to his cabinet. "As
Generally speaking, however, since the creation of the Department
ed Bates, "I do not presumptuously
of Justice in 1870, the Attorneys General have come to avoid the ups
test!
and downs of the "cabinet council" and, except when directed other-
all the people the President must
wise, have confined themselves to the administration of justice and
side the cabinet. There are many
the rendition of opinions on questions of law.88 All executive orders
[ constant pressure of extreme fac-
and proclamations prepared by the several officers and agencies of
te men," said Lincoln's Attorney
the federal government to be signed by the President are referred to
of his amiable weakness, commit
the Attorney General for recommendations as to form and compli-
Stat. 162, Sec. 14, June 22, 1870, and see
ance with law-covering matters which range from intra-govern-
Conway, op. cit., 140.
330; Bates to Stanbery re West Virginia
Bates Diary, op. cit., 280.
s.; Welles Diary, op. cit., I, 205, and II,
Hearings, The Meaning of the Term "Whiskey" (1909), 1243, 1266; Food
and Drugs Act Decisions (1914), 818, 831.
See Dyer, op. cit., 102-103.
132
/
DEPARTMENT OF JUSTICE
Policy Act (1970), which established general guidelines for environmental pro-
tection, the Interior Department has been drawn increasingly into environmental
protection. All of these measures have involved the Interior Department in an
increasingly central role in regulating the quality of life for Americans.
Internally, the Interior Department recognized the centrality of public resource
management. In 1964, for instance, the department discontinued its annual re-
ports and began instead a series called the Interior Conservation Yearbook. These
volumes highlight the efforts and accomplishments in the management of natural
resources. Thus, from a department of the great miscellany, the Interior De-
pastment has evolved into a department of natural resources.
FOR ADDITIONAL INFORMATION: The major sources for the history of the Interior
Department include a number of readily available published items. The serious student
will want to read the Annual Reports of the Secretaries of the Interior and the Conservation
Yearbooks which succeeded them. Especially useful is the summary of Interior Department
history in No. II: America 200: The Legacy of Our Lands (1976). Perhaps the best source
materials for Interior secretaries through the administration of Stewart Udall will be found
in Eugene P. Trani's The Secretaries of the Interior, 1849-1969 (1975). The early history
of the department is covered in Norman Olaf Forness's, "The Origins and Early History
of the United States Department of the Interior" (Ph.D. Dissertation, Pennsylvania State
University, 1964); developments in the nineteenth century will be found in Thomas G.
Alexander's A Clash of Interests: Interior Department and Mountain West, 1863-1896
(1977). The study of public land policy is best begun with Paul W. Gates and Robert
W. Swenson's History of Public Land Law Development (1969), which provides a good
introduction to the conservation movement as well.
THOMAS G. ALEXANDER
DEPARTMENT OF JUSTICE. The Department of Justice was not created
until 1870, but its direct predecessor, the Office of the Attorney General, was
established by the Judiciary Act of 1789. The act provided for the appointment
by the President of a
person, learned in the law, to act as attorney general of the United States
to prosecute
and conduct all suits in the Supreme Court in which the United States shall be concerned,
and to give his advice and opinion upon questions of law when required by the President
of the United States, or when requested by the heads of any of the departments, touching
any matters that may concern their departments.
Edmund Randolph, a friend and lawyer for President Washington, was appointed
as the first Attorney General and served until 1794.
Unlike the duties of the other members of the first Cabinet, the powers and
responsibilities of the Attorney General were vague,and for many years the job
was considered as only part-time. Much of the work was providing legal counsel
to members of the executive branch of the new federal government and to
Congress as it wrote legislation. Until William Wirt became Attorney General
DEPARTMENT OF JUSTICE
/
133
in 1817, that practice continued, and the position remained anomalous. Wirt's
predecessors had tried important cases in the courts, offered sanguine advice on
foreign policies, and participated sporadically in Cabinet meetings, but Wirt
first
discovered no set of records or book of opinions from the previous attorneys
AG
general. Wirt set up an opinions and records system, obtained an office and
to
clerk, and limited the number and scope of opinions coming from the Attorney
General. Wirt resigned after the election of Andrew Jackson, but having served
truly
more than a decade, he established the office as the law department for the
executive branch of the federal government.
organize the
Between Wirt's tenure and the passage of the bill creating the Department of
Justice in 1870, efforts were made to increase the duties, appropriations, and
files of the
prestige of the Office of the Attorney General in the face of a general hesitance
by Congress to establish another full department. Caleb Cushing, who served
office
as Attorney General from 1854 to 1857, acquired functions from the Departments
of Interior* and State* which included the commissions of law officers, the
also
accounts of the federal courts, and the processing of pardons and petitions for
executive clemency. The acquisition of more functions increased the movement
longest serving A.G.
for an official law department, but the bills introduced to that end before the
Civil War were never made into law.
The legal and political issues that the attorneys general dealt with during the
antebellum period included the national banks, the distribution of public lands,
and slavery. In 1819, the national bank issue came before the Supreme Court,
and Attorney General Wirt appeared for the United States with the counsel for
McCulloch in McCulloch V. Maryland. The second Attorney General for Pres-
ident Andrew Jackson was Roger Taney, who was on the opposite side of the
bank question from his predecessor Wirt. He wrote two opinions for Jackson,
stating that the President could fire the recalcitrant Secretary of the Treasury,
William Duane, who would not withdraw federal funds from the national bank.
In the second (and his last) opinion as Attorney General, Taney stated that the
Secretary of the Treasury could in fact put federal funds into depositories other
than the Bank of the United States. Taney's successors, Benjamin Butler and
John Nelson, continued the fight against the national bank through Jackson's
administration.
In the distribution of public lands by the federal government, the role of the
attorneys general was as litigant for the government in dealing with the claims
of people to land in the Louisiana, Florida, and California territories. Large land
frauds were common, and the litigation was difficult for the U.S. attorneys,
attorneys general, and solicitors of the Treasury who shared responsibility for
defending the government land. Many cases reached the Supreme Court, par-
ticularly the huge land claims, and, as the government attorneys used the Mexican
archives and fought to adjudicate the settlements fairly, the battles for land
increased with the federal government not gaining much popularity from the
original claimants, settlers, and land companies. By 1870, most of the California
and other claims were settled.
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DEPARTMENT OF JUSTICE
The legal problems about slavery at the federal level were not unimportant,
but the attorneys general for the most part attempted to avoid involvement in
them. The slave trade, the fate of blacks captured on the high seas, and fugitive
slaves in the North were the major slave issues which the attorneys general faced
in the antebellum period. No clear policies were followed, and delay and court
efforts on behalf of the institution of slavery were the primary legal directions
of the federal government. Edward Bates and James Speed were the two Civil
War attorneys general, and, though they did not set great policies during the
national crisis, they did handle questions of military versus civil rule, disloyal
activities, and confiscation of property at sea and on land. The writ of habeas
corpus cases were the most important civil cases, and the Supreme Court decided
ex parte Milligan in favor of the defendant after the end of the war. Reconstruction
presented an extremely difficult period for the U.S. attorneys in the South who
with the Army attempted to enforce the Reconstruction laws. There were pros-
ecutions to stop the violence against the blacks in the South, but, as the Supreme
Court overruled the Civil Rights Acts and prosecution of election frauds became
almost impossible, the attorneys general and Department of Justice joined the
rapprochement between the North and the South.
The Department of Justice Act, passed in June 1870, created the department
beginning in July of that year, with the Attorney General retaining his former
duties and the Solicitor General being his principal assistant. The solicitor of
the Treasury, as well as the law officers of the State* and Navy* departments
and the Bureau of Internal Revenue, were transferred to the new department. In
the 1870 act and later legislation, the Department of Justice was authorized to
supervise all U.S. attorneys and other law officers of the federal government,
to facilitate the business of the courts, to provide for federal prison facilities, to
control immigration and administer naturalizations, to advise on paroles, and to
investigate federal crimes. These responsibilities and the increasing number of
crimes brought under federal responsibility greatly increased the size and amount
of work for the Department of Justice throughout its history.
Amos Akerman, a Republican from Georgia and appointee of President Ulys-
ses S. Grant, was the first Attorney General to direct the new department. The
new act solidified the politically powerful patronage system in which the Attorney
General processed the appointments of federal judges, U.S. attorneys, and mar-
shals. The attorneys general worked with presidents and senators in those ap-
pointments, but nonetheless the Attorney General could be a major political
figure in an administration. The conflict between administering justice and man-
aging a political system often strained the balance between the two. Akerman
issued opinions on payment of interest for the federal railroad construction loans
and extension of railroad lines that raised the ire of the railroad companies and
First
caused President Grant's request for his resignation. Late in the next year, 1872,
the Credit Mobilier scandal revelations forced the new Attorney General to
use
appoint two "special prosecutors" within the department. That prosecution was
special tors
unsuccessful, but the merging of party politics and the Department of Justice
DEPARTMENT OF JUSTICE
/
135
historically has been a major problem for some presidential administrations-
most notably manifested in the resignations under fire of Attorneys General Harry
Daugherty and John Mitchell.
The West provided a number of seemingly insurmountable legal problems for
the department. The distances were great, prosecutions difficult, and Congress
appropriated minimal funds to police the sparsely settled territories. The courts
functioned in many places in primitive fashion and surroundings. The fee system
for compensating local, federal law officers was an evil that favored many petty
legal actions and left many federal attorneys and marshals underpaid. The system
was finally abolished in 1897. Protecting the national wealth on federal lands,
particularly timber, was an almost impossible task for Department of Justice
attorneys. Lumber and railroad interests were politically powerful and locally
popular, so that prosecutions for illegal cuttings were seldom successful. Later
in the early twentieth century when conservation of natural resources became a
more popular issue, the department was somewhat more successful, but political
pressures and long legal battles made enforcement of weak conservation laws
formidable.
The passage of the Sherman Anti-Trust Act in 1890 produced some of the
most publicized prosecutions by the department in the early twentieth century.
During the first decade of its existence, the law had minimal effects on the growth
of corporations, but after the assassination of President William McKinley,
President Theodore Roosevelt and Attorney General Philander C. Knox moved
to prosecute five major antitrust cases. The two most important were the Northern
Securities and Swift cases, which the government won by narrow margins. Later
victories in civil cases against Standard Oil and American Tobacco were frus-
trated by the consent decrees agreed to by the attorneys general and the legal
machinations by the corporations to establish greater control of industries and
markets. Prosecutions and regulation of monopolies after World War I have been
sporadic, but the Anti-Trust Division of the department continues to monitor the
growth of corporations and sometimes does prosecute effectively to stop mergers.
World War I brought new and onerous tasks to the department, beginning
with the prosecutions of neutrality violations. Merchant ships were the most
prominent offenders, and they thrust upon the department difficult enforcement
questions. The department asked Congress for more specific laws, but war was
declared before any new neutrality laws could be passed. New laws against
sabotage and sedition were passed during the war. U.S. attorneys oversaw the
registration of enemy aliens, assisted in the draft, and instigated the "slacker"
raids. The department had a bureaucratic fight between its relatively new Bureau
of Investigation and the Departments of State and Treasury* over jurisdiction
for investigations and prosecutions of internal espionage and sedition. Attorney
General Thomas Gregory won most of that battle because of the popularity of
the department's American Protective League. The league was a volunteer or-
ganization, which began gathering information on neutrality violations. Later,
it became part of the department's campaign against pro-German sedition that
136
/
DEPARTMENT OF JUSTICE
was minor in scope, and then even later in the Red Scare investigations and
prosecutions directed towards leftists and radicals. Attorney General A. Mitchell
Palmer's raids on meetings and headquarters of leftist organizations in 1919 and
1920 netted more than two thousand people, and several hundred aliens were
deported. The raids were the last of a number of efforts by the department during
and after the war that fomented or followed the domestic hysteria against Germans
and radicals and that resulted in the abridgement of civil rights for aliens and
citizens in the United States.
During the 1920s, prohibition was not a major Department of Justice respon-
sibility, and the department avoided jurisdiction in the prosecution of lynchings.
The Teapot Dome scandals during the Harding Administration involved Attorney
General Daugherty, who was charged with taking bribes for failing to prosecute
violators of prohibition and embezzlers in the Veterans Bureau. The close of the
decade saw the creation of the Wickersham Commission to survey crime in the
nation and its connections with prohibition. The commission report detailed the
extent of crime in the United States but opposed repeal of the Prohibition
Amendment.
The administration of Franklin D. Roosevelt reversed the long policy of the
federal government seeking injunctive relief against labor organizations during
strikes. The Wagner Act, passed in 1935, upheld labor's right to organize and
bargain collectively. Homer Cummings, the Attorney General during the New
Deal, was the President's legal adviser for much of the New Deal legislation,
and he argued several of the cases before the Supreme Court that decided the
fate of the New Deal laws.
World War II did not bring with it the anti-German and anti-radical hysteria
of the previous world war. Francis Biddle, as Attorney General during the war,
opposed in vain the incarceration of Japanese citizens on the West Coast and
stopped the Federal Bureau of Investigation's (FBI's) Custodial Detention pro-
gram. He personally directed the prosecution of eight Nazi saboteurs and suc-
cessfully argued against their petitions for habeas corpus in the Supreme Court.
The major postwar issues for the Department of Justice were internal security,
organized crime, and civil rights. The Cold War stimulated a second Red Scare
in the United States, with the Department of Justice working with congressional
committees and other executive branch agencies to find subversive activities and
prosecute suspected Communists. Alger Hiss, Julius and Ethel Rosenburg, Judith
Coplon, Valentine Gubitchev, Rudolf Abel, and others were all arrested and
prosecuted under the Smith Act of 1940, the McCarran Act of 1950, or for
perjury. Charles Chaplin was denied reentry to the United States, and Robert
Oppenheimer lost his security clearance because they were associated at one
time with left-wing organizations. As the Communist party in the United States
dwindled into insignificance in the 1950s and the perceived internal security
threat lessened, the department prosecuted fewer internal security cases each
year.
Since the 1930s when prohibition and organized crime were connected and
DEPARTMENT OF JUSTICE
137
seen as a federal concern, the Department of Justice has directed resources for
combatting the activities of organized crime. Certain special efforts have attracted
greater attention to the investigations and prosecutions during periods of political
pressure and publicity to thwart organized crime. After the Kefauver hearing on
the Mafia in the 1950s, Attorney General William Rogers set up a Special Group
on Organized Crime to coordinate federal law enforcement agencies in the cam-
paign on organized crime. The group met opposition from J. Edgar Hoover
(FBI), who denied the existence of an organized criminal element in the United
States, and the bureaucratic reluctance of other agencies to cooperate.
Robert Kennedy, when he became Attorney General in 1961, made the cam-
paign against organized crime his number-one priority. He used special groups
of lawyers and investigators in the department and approved extraordinary in-
vestigative techniques to break organized crime. The best known campaign was
directed against James Hoffa, Teamsters Union president, who was convicted
in 1967 of jury tampering. Later, President Richard M. Nixon had two laws
passed to give the Department of Justice and other federal agencies more power
in combatting crime.
In the school desegregation cases, lynchings, peonage, and other civil rights
issues in the 1930s and 1940s, the Department of Justice did little, declaring
that most of the issues were not within federal jurisdiction. After Brown V. Board
of Education (1954), the Civil Rights Division of the department was established
to enforce federal court integration decrees and the civil rights laws passed,
beginning in 1957. During the Dwight D. Eisenhower and John F. Kennedy
administrations, the Department of Justice attempted to work with state and local
officials to integrate schools and assure the voting rights of blacks in the South.
The strategy was to avoid use of federal troops and to make local authorities
responsible for keeping the peace, while attempting to have the civil rights laws
enforced. The policy broke down a number of times in Little Rock, Oxford,
Selma, and other places when lives were threatened and lost, and federalized
troops had to be mobilized. By 1965, the FBI and Justice Department lawyers
were a major presence in the South. Violence lessened, and blacks in large
numbers began to vote and become part of the political process.
The Watergate break-in and ensuing scandals again brought the dilemma
between enforcing the law and being a political entity directly to the Department
of Justice. Three attorneys general resigned during the crisis for different reasons.
John Mitchell and Richard Kleindienst resigned under fire, and Mitchell was
convicted of conspiracy, obstruction of justice, and perjury. Kleindienst pleaded
guilty to a misdemeanor charge for withholding information. Eliot Richardson
resigned as Attorney General because he would not fire Archibald Cox, the
Watergate special prosecutor, when ordered to by President Nixon. Since Wa-
tergate, attorneys general have tried to depoliticize the Department of Justice,
but the dilemma remains.
President Jimmy Carter successfully withstood the opposition of civil rights
leaders in selecting Griffin Bell as Attorney General. Bell, a Georgian and Carter
i,
138
/
DEPARTMENT OF LABOR
friend, was confirmed in 1977 despite the charge that his record as a federal
Court of Appeals judge had been unfavorable toward school desegregation. The
usual problems continued under Bell, with major attention going each year to
questions of anti-trust and school integration, in addition to alleged Federal
Bureau of Investigation wiretapping and letter-opening (1977), investigation of
Korean businessmen for influence peddling in trade in the United States (1978),
food-stamp probes (1979), and cases in 1980 including the reopening of the John
F. Kennedy murder investigation.
William French Smith, of Los Angeles, President Ronald Reagan's personal
lawyer, succeeded Bell in 1981 as Attorney General. Old issues returned to dot
the list of Justice actions, especially pertaining to school desegregation and voting
rights. Newer but yet vexing were cases of federal tax fraud against the contro-
versial cult leader the Reverend Sun Myong Moon and his aides in 1982 and
abortion cases in Akron the same year. In 1981, the flood of alien refugees
arriving in the United States by boat from Cuba and Haiti aroused great concern
without satisfactory answers.
FOR ADDITIONAL INFORMATION: The one history of the Department of Justice was
published in 1937: Homer Cummings and Carl McFarland, Federal Justice: Chapters in
the History of Justice and the Federal Executive (1937). A Brookings Institution study
of the department was published in 1967: Luther A. Huston, The Department of Justice
(1967). The most intensive study of a single Attorney General is Victor S. Navasky,
Kennedy Justice (1971). There are many other memoirs and biographies of other attorneys
general.
R. MICHAEL McREYNOLDS
DEPARTMENT OF LABOR. The United States Department of Labor is ba-
sically a "people" agency whose function is to see that there is a job for every
American who wants work, to ensure that the job provides a safe and healthy
work environment, and to assist individuals when they are unemployed or are
unable to work. With these goals and concerns, the department has helped
develop many social programs, but not without stirring controversy and debate.
The Secretary of Labor is a member of the President's Cabinet and is the
President's primary adviser on labor matters. The Under Secretary is his chief
deputy, and he is supported by assistant secretaries (in program areas), the
solicitor (or general counsel), and the commissioner of labor statistics. Through
its major programs, the department helps people find and train for jobs; provides
assistance to workers who lose their jobs because of foreign import competition;
and administers the Unemployment Insurance program which provides some
security to those out of work. It monitors the workplace in an effort to upgrade
conditions in health and safety, as well as in the more traditional concerns for
wages and hours. It also seeks to assure every worker the opportunity to bargain
collectively through responsible unions and to advance free of discrimination on
the basis of race, sex, religion, age, national origin, or handicap.
These concerns and activities have made the department part of the various
JUS GENTIUM-JUSTICE, DEPARTMENT OF
241
$ in the admission of
instructions to
with which the grand jury
JUSTICE, DEPARTMENT OF, an executive depart-
give up their the
on the need to prevent
ment of the United States government, headed
oponents argue,
II
increases the potential
by the attorney general. This cabinet officer,
il ain time to
of of of the system by the government and
established by the Judiciary Act of Sept. 24,
cost is imposed jurors on
abuse difficult witnessess of any wrong done by
1789, is the chief legal officer of the federal gov-
or the grand jury itself.
ernment. The department itself was established
iry, on the other hand.
also charge that in turbulent times some
and placed under the attorney general on June
lps educate citizens aboug
ustice and
FOR
employ grand juries to obtain politi-
22, 1870.
ninistration.
useful cutors information and to harass politically
In 1789 the attorney general and one clerk no
responsibility loused
citizens when in fact there is no indi-
composed the staff. Today the department rep-
vise would
that a crime has been committed.
resents the largest law firm in the world, with its
Criticisms have led to proposals for
54,000 employees including more than 4,200
United States the
bate about the trial jury
themds. edural modifications, particularly with refer-
lawyers. In 1819 the attorney general was first
right to counsel and cross-examination.
provided office space. In 1861 permanent quar-
difications such as criticity
to of U.S. constitutional limitations, the
ters were established. And finally, in 1934 the
Because the later 20th century
on for majority verdicts.
department occupied its own building, an entire
modification and reform
city block in Washington, D.C.
Is, but constitutional
S virtually disappeared
that the of the grand jury, as
A principal function of the Department of
brake any similar trend limits
wourred in England in 1933.
Justice is to represent the United States in court.
JOHN W. REED
The day-to-day office "lawyering" in the federal
School of Law, The University of Michigan
government, such as providing legal advice or
AND JURY
negotiating contracts, is handled by the various
Further Reading: Simon, R., The Jury: Its Role in
S a group of persons,
Society (Lexington Bks. 1980); Wishman, S., Anat-
executive departments or agencies. But when
umber, that is the state's
Jury: The System on Trial (Times Bks. 1986).
litigation arises, the Justice Department assumes
the task.
crime, hear
rongdoing, and hand
GENTIUM, yoos gen'tē-am, a term used by
Administrative Organization. The attorney gen-
ey are satisfied that a down
ancient Romans to describe the actual com-
eral is the overall supervisor and director of the
In the federal courts
practice of mankind. It was the law univer-
Department of Justice. The Federal Bureau of
he U.S. Constitution
adopted by men and thus broader than jus
Investigation, reporting directly to the attorney
and
which applied only to the Romans. It was
general, is the U.S. government's primary law-
ent a prerequisite to a
hat like jus naturae but differed from it in
enforcement agency and is principally con-
rwise infamous crime.
n indictment is required
only presumptively reasonable instead of
cerned with the detection and prevention of
ony prosecution. The
involutely fundamental and unchangeable. In
crime. The solicitor general, also reporting di-
other words, jus gentium was legal usage pre-
rectly to the attorney general, is responsible for
ever, allow such prosects
wailing everywhere, while jus naturae was the
all litigation in the U.S. Supreme Court to which
ment or by information
useal law, which might not exist.
the federal government is a party.
nent by the prosecutor the
RICHARD L. HIRSHBERG, Attorney at Law
The associate attorney general is responsible
eve that the accused
See also INDICTMENT;
for: the Criminal Division, which provides cen-
JUS prudence that originated with the philosophers
NATURAE, yoos na-too're, a theory of juris-
tral control for criminal prosecutions and the ex-
ecutive offices for all U.S. attorneys; the Immi-
n is determined by statute
the process employed
ancient Greece, who sought to discover the
gration and Naturalization Service, responsible
A defendant may chal
basis of law and the relationship of law to justice.
for enforcement of naturalization, immigration,
NATURAL LAW.
and alien laws; the Bureau of Prisons; the U.S.
alifications of individual
Parole Commission; the Pardon Attorney; the
llenge the whole array
JUSSIEU, zhü-syû', Antoine-Laurent de (1748-
U.S. Marshal's Service; and the Board of Immi-
ects in the mechanics
1836), French botanist, who was perhaps the
gration Appeal.
most distinguished member of the great dynasty
1 jury may initiate its own
The deputy attorney general is responsible
of de Jussieus who dominated French botany
for: the Antitrust Division; the Civil Division,
g the subpoena power
from about 1710 to 1860. He established as
which is lawyer to more than 100 federal agen-
compel the production
never before the idea of a natural classification of
cies and commissions, individual employees act-
vestigate matters brought
plants and translated that idea into concrete fam-
ing in their official capacities, and Congress; the
court or the prosecutor.
ilies, which, although revised and much ex-
Civil Rights Division, which enforces laws
normal course, with wit.
panded, still provide the basic framework for
against discrimination; the Land and Natural Re-
I examined by the prose-
botanical taxonomy.
sources Division; the Tax Division; the Office of
are conducted secretly,
Jussieu was born in Lyons on April 12, 1748.
Justice Assistance; Research and Statistics; the
vestigated has no right to
He devoted his career to the systematic collec-
Community Relations Service; the U.S. Trust-
his own evidence. Nor
tion and organization of the enormous botanical
heard is that presented
ees; and the Foreign Claims Settlement Com-
resources of the French crown and republic. As
mission.
d jury finds, by a major-
professor of botany at the National Museum of
Staff sections serving the attorney general di-
or persons under inves-
Natural History (1793-1836) he was responsible
rectly are the Office of Legal Policy, Office of
tted a crime, it will enter
for the extraordinary development of the herbar-
Legal Counsel, Office of Professional Responsi-
nt. This is not a finding
ium. Admitting the convenience but emphasiz-
bility, and Office of Intelligence Policy and Re-
is guilty of a crime but
ing the limits of an artificial classification based
view.
ent evidence to require
on one or a few distinctive characters, Jussieu
Each of these divisions, offices, and services
built his natural classification upon identification
is divided into numerous sections, depending on
The grand jury has a
and careful assessment of certain traits (for exam-
the nature and purpose of its activities.
ing public and private
ple, seed leaves and position of floral parts) that
Principal Functions. The Department of Justice
ement has been its rela-
appeared to remain relatively constant within
is the legal counsel for the American people. It
CS of the grand jury have
various groups and were therefore deemed to be
affects the everyday life of all citizens through
inefficient, costly, and
highly important. Often numerous such traits
detection and prevention of crime, enforcement
he use of the "informa"
were used, and thus Jussieu was able to define
device and that most
of the civil and criminal laws enacted by Con-
with great accuracy the limits of his families. He
gress, regulation of aliens and immigrants, prohi-
ontrolled by the prose-
died in Paris on Sept. 17, 1836.
bition of the abuse or illegal use of controlled
e that he could not do
WILLIAM COLEMAN, University of Wisconsin
drugs, protection of the American economy from
242
JUSTICE, DEPARTMENT OF
monopolistic and unfair business practices, secu-
rity of civil rights, application of the internal rev-
Consent decrees resolve a large number
enue laws to assure the proper payment of taxes,
the division's cases. Defendants are required
implement comprehensive affirmative-action
and assistance to communities in the reduction
grams to guarantee the
of racial-ethnic tensions.
ties. Most of these cases
The Criminal Division's 14 sections include
nation, but a few allege
I
responsibility for such areas as organized crime
women. The division has been especially
and racketeering, fraud, public integrity, internal
seeking to prohibit state and local
geesonal
security, narcotics and dangerous drugs, and en-
ment officials from violating the
forcement operations.
rights of individuals.
Enforcement of the federal criminal law rests
The Tax Division's primary missions
Law
chiefly on the U.S. attorneys' offices serving the
help the Internal Revenue Service collect are
and
case
judicial districts of the U.S. district courts
eral revenue, to prevent willful deception by
the
throughout U.S. territory. Thousands of assis-
payers through criminal prosecutions, and to
powed
tant U.S. attorneys and support personnel assist
tablish uniform legal principles of taxation
suborit
the U.S. attorneys in preparing and arguing the
the latter mission, the division must coordin
what
pr
vast majority of federal cases. The criminal cases
its litigating policies with Internal Revenue
may,
ex
include fraud, organized crime and racketeering,
vice administrative policies and the Treas
be
hol
narcotics and dangerous drugs, and hunting and
Department's tax legislation concerns. The
warrant
fishing violations. Civil cases involve taxes, per-
Division and Criminal Division work closely
The
sonal injury and death claims based on negligent
criminal tax cases involving persons and actif
we
jud
or intentional torts of federal employees, and
ties associated with organized crime.
quently
antitrust violations.
The Community Relations Service helps
sumbe
Crime prevention, detection, and enforce-
zens settle race-related differences voluntant
Bewn
ment are further enhanced in the federal juris-
rather than through the courts or acts of street
stat
diction by the Bureau of Prisons' operation of
violence. Illegal alien problems, police-minori
electer
federal correctional facilities, community treat-
group tension, anti-Indian hostility, and and
someti
ment centers or halfway houses, and the Federal
discrimination compliance disputes are amos
Prisons Industries, a self-sustaining government
the areas being pursued by this service.
Engla
corporation providing work experience and
The Justice Management Division, estab
cials
learning opportunities for federal prison inmates.
lished in 1980, seeks to improve the administra
called
The bureau aids state and local corrections per-
tion and management of the department through
Nature
sonnel in technical assistance and training.
its several offices of controller, personnel and
ment
The Immigration and Naturalization Service
administration, and litigation and management
centu
encompasses the prevention of illegal entry of
systems.
peace
persons into the United States, apprehending
The U.S. Marshal's Service operates through
powe
and expelling illegal aliens, encouraging and fa-
admi
its witness security, prisoner support, prisones
cilitating the naturalization of applicants into cit-
Litte
transportation, and special operations divisions.
izenship, and adjudicating benefits available to
and
The Civil Division, established in 1868, is
persons under the immigration and nationality
one of the department's oldest divisions. Claims
laws.
the
against the federal government represent a major
The Drug Enforcement Administration is the
istral
portion of the department's legal work. This di-
elect
primary narcotics-enforcement agency in the
vision has three branches.
dich
United States. As one of the largest regulatory
The Tort Branch handles lawsuits brough
bodies in the federal government, it regulates
under the Federal Tort Claims Act, wherein per.
the country's entire controlled substances indus-
justi
sons injured by tortious acts of federal employ
time
try. As the leading agency in developing overall
ees can sue for damages. The branch also deals
federal drug-enforcement strategy, programs,
prof
with workers' compensation claims by federal
con
planning, and evaluation, it operates worldwide.
employees; ship collision and Jones Act law.
The Antitrust Division enforces federal anti-
gov
suits; and recovery of damages for vessel-caused
trust laws to prevent restraint of trade and mo-
pollution of navigable waters.
nopolies so that business competition may be
The Commerical Branch deals with contract
open and free. The production, manufacturing,
actions; cases arising under grants, subsidies, or
JU!
transportation, distribution, and marketing oper-
insurance matters undertaken by the federal gov.
Law
ations of all American businesses and industries
ernment; foreclosures, bankruptcies, and renego
are the concern of this division. Price-fixing,
tiations; and patent and copyright infringement
conspiracies among competitors, boycotts, anti-
suits. Also included are civil frauds, bribery and
competitive mergers, and other restraints-of-trade
antikickback cases, collection of civil fines and
are targeted for investigation, negotiation, and
penalties, and judgment enforcement.
litigation. While Washington, D.C., is the head-
The Federal Program Branch defends the
quarters for this division, field offices are located
propriety and legality of federal programs. It
in Atlanta, Chicago, Cleveland, Dallas, Los An-
initiates legal action to enforce these programs,
geles, New York, Philadelphia, and San Fran-
defends the validity of statutes and regulations
cisco.
challenged under the Constitution, and litigates
The Civil Rights Division, established by the
matters involving Freedom of Information, Pri-
Civil Rights Act of 1957, enforces federal laws
vacy, or Sunshine Act cases.
and executive orders relating to the prohibition
Because the department makes recommenda-
of discrimination of persons on account of race,
tions to the federal judiciary, it significantly in-
religion, and natural origin in employment, edu-
fluences America's constitutional government.
cation, housing, credit, voting, public accommo-
See also ATTORNEY GENERAL; FEDERAL Bu-
dations and facilities, and federally assisted pro-
REAU OF INVESTIGATION.
grams. To a lesser extent, it also is authorized to
OLIVER C. SCHROEDER
prevent discrimination on the basis of sex, age,
The Law-Medicine Center,
and handicap.
Case Western Reserve University