THE COLONIAL EXPERIENCE

Thus, the Attorney General of England attained his modern posture-both as legal officer and political participant-at the time the American Colonies were being settled; and it was to this image that the Colonists looked when establishing the legal officers within their governments. As Sewall Key noted in his study of the attorney generalship in America:

"In each colony the office of Attorney General was created and that officer became possessed with the common law powers and duties of his prototype in England, except as changed by specific statute or charter." 12

Lewis W. Morse, in his compilation of American Colonial and State Attorneys. General, reports that "The earliest known record of the office is the appointment of Richard Lee as Attorney General [of the Colony of Virginia] on October 12, 1643." ." 13 In a sense Lee and his counterparts in the other British Colonies of America were delegates of the Attorney General of England, for they were generally appointed by the Crown through the Governor of the Colony or other designated executive officer." It was their duty to protect the interests of the King in the colonies of the Crown. Their success in this legal sphere was less than commendable-again, Mr. Sewall Key:

"In general the conduct of the office of Attorney General in the various Colonies was far from satisfactory. This was due to many causes but chiefly to the failure to define properly the duties of the office, poor appointees, the lack of sufficient remuneration to interest able men, and the need of some centralized control." 15

For the purposes of this study, the first and last explanations rendered by Mr. Key are the most important: "define properly the duties of the office," and "need of some centralized control." It will be shown later that the American response to these two needs shaped the office of the Attorney General of the United States as it is known today.

In addition to the duty of representing the Crown in court, the American Colonial Attorneys General were charged with political responsibilities similar to the Attorney General of England. They were usually members of the Executive and Legislative Councils which governed the Colonies and they served as advisers to the officers of the colonial governments. Thus, political participation, in the sense of being involved in the political process of policy making and execution, was an inherent quality of the Attorney Generalship from the outset of its American experience.

16

England had attained a national public attorney in the year 1672. During the seventeenth and early eighteenth centuries the Attorney General of England, at lease in a de jure sense, served as the national Attorney General for the Colonies. In a de facto sense, however, the great distance to America, complicated by a swelling movement toward independence, made his authority over Colonial Attorneys General merely emblematic. As noted above, a primary complaint of the Colonists concerning their Attorneys General was that there was a lack of centralized control on a national scale. Indeed, in the 1690's the conscientious Edward Randolph, Surveyor General of His Majesty's Customs. for North America, complained to the King that the Attorneys General of the Colonies "were either ignorant or corrupt," " and he recommended a thoughtful plan to centralize the authority and supervision of these legal officers.18. Although his plan was adopted in part, the problem persisted and remained unresolved.

The Colonial experience in America made no substantial alteration in the development of the Attorney Generalship as a governmental office. This is understandable, for it must be remembered that the majority of the early Colonists in America, particularly the British, were economic or religious opportunists-not social or political revolutionaries. The British colonials were essentially loyalists, and as the dominant social, political, and economic force in an unknown and virgin land they turned to familiar institutions when establishing their society. This period is important not for the changes wrought on the Attorney Generalship, but for the fact that the office was imported essentially intact from England and given a vote of confidence. This is not to say that the Colonists were entirely content, for, as has been noted, they did experience shortcomings; but these were complaints about the personnel and the administration of the office-not about the concept of a single, national, public attorney as it was known in England. In their work, Federal Footnotes at end of article.

Justice, Homer Cummings and Carl McFarland indicate American satisfaction with this concept of the office of Attorney General:

"The coming of independence brought no sharp break with the past so far as the administration of justice was concerned. New judges and new law officers replaced their royalist predecessors. Basically, the powers and duties of an American [State] attorney general were those of the attorney and solicitor general of England."

19

Surely, changes would come as the Americans developed the office to fit its governmental needs, but the Attorney Generalship came to this continent as a British institution, and its development in the Colonial and State periods of America was largely an attempt to see the administration of the office maintain the British standard of effectiveness. At the time independence was proclaimed in 1776, each of the thirteen States had its own legal officer, and the Attorney Generalship of America still had not attained the single, national. character it enjoyed in England. The continuity and development of a public legal office as conceived in England was now dependent on the actions of the new government in America.

DECENTRALIZATION DEVELOPS, 1774-1789

The First and Second Continental Congresses, which governed the United Colonies and, following the Declaration of Independence, the United States, were too preoccupied with the exigencies of war and the business of stabilizing their new union to be much concerned with establishing a coherent system of legal officers for the administration of justice.

Necessity eventually prevailed, however, as the Revolutionary War continued, for debts to and of the United States Government began to find their way into courts. Faced with this imperative, the Continental Congress was compelled to seek some means of public representation in the courtroom. Their solution was to employ an attorney in the individual states to represent the U.S. Government in the courts of that State:

"The delegates for the State of New York, laid before Congress a letter of 14 [January 1781], from John M'Kesson, which being read, it was thereupon, Resolved, That a procurator be appointed, during the pleasure of Congress, to prosecute in behalf of Congress for debts due to, or frauds committed against these United States in the State of New York." 20

Thus, the first legal office of a United States Government was neither singly held nor national in scope.

The year 1781 was of great significance in the struggle to erect a workable national government in America. Signs existed to indicate that the war was drawing to a close, and Congress began to turn its attention to a governmental structure. On February 16, 1781, the Delegates received a committee report which included a proposal for a national Attorney General:

"That an Attorney General for the United States be appointed by Congress, whose duty shall be to prosecute all suits in behalf of the United States. To give his advice on all such matters as shall be referred to him by Congress. And when any case shall arise in any of these states, where his personal attendance is rendered impracticable, he shall be authorized to appoint a Deputy or Deputies to prosecute the said suit." 21

Here, then, was a sweeping provision which held the potential for establishing a well-ordered, national legal office in which the authority for the conduct of the legal affairs of the Federal Government was vested in one person, responsible to Congress. Unfortunately, the report was recommitted, following amendments and debate, on February 23, 1781, and it was never acted on.* The Government's legal business, then, remained in the hands of Congressionally appointed procurators in the several States for the duration of the Congress of the Confederation, 1781-1789.23

The decentralization of the Attorney Generalship during the years of independence and Confederation is more understandable when viewed in the perspective of the general political attitude of the period. Having just paid the price of war to snap the bond of a government which they considered tyrannical, the States were fiercely protective of their independence and sovereignty. The entire governmental organization was weak-there was, for example, no federal executive or judiciary. The Thirteen States were not yet ready, as Morison and Commager phrase it, "to surrender the substance of sovereignty

Footnotes at end of article.

for the shadow of union." " Thus, they tolerated an ineffective legal administration rather than submit to a national Attorney Generalship. A waning of this spirit of strict State sovereignty, combined with the glaring weaknesses of loose confederation, led the Congress to propose, on February 21, 1787, a convention of State delegates to "render the federal Constitution adequate to the exigencies of Government and the preservation of the Union." 25

THE ATTORNEY GENERAL AND THE CONSTITUTION

The Delegates of the Thirteen States, meeting in Constitutional Convention in Philadelphia from May 25 to September 27, 1787, appear to have been conspicuously silent regarding the Attorney Generalship. Neither in the records of their debates and proceedings, nor in the Constitution itself, nor even in the subsequent records of the various ratification proceedings is there a specific mention of a national attorney for the public. In both a general and a specific sense, however, the office of the Attorney General of the United States is as much a product of the years of Constitutional creation (1787-1789) as were those governmental institutions for which the Document explicitly provided.

In the general sense, the very nature of the Constitution anticipated a national Attorney General, for it was a national government that was contemplated. The preamble to the Constitution declares "We the People"-not, “We the States." The implication here, as historians Morison and Commager note, is that the Federal Government is based directly on the people, not on the States:

"For the essence of the Constitution, and a secret of its success, was the complete and compulsive operation of the central government upon the individual citizen, within the scope of its limited powers. It was carefully discussed whether the new government, like the old, should depend upon the sanction of state governments, and, in the last resort, upon the coercion of sovereign states by force of arms; or whether the Federal Government should create its own sanctions, enforce them by its own courts and officials, and, in the last resort, by the coercion of individuals. The latter system, which Oliver Ellsworth called the coercion of law, was finally adopted."

26

Under this theory, national governmental institutions, not existing State machinery, were to be employed. This preference for national institutions, as embodied in the nature of the Constitution, may be coupled with yet another general factor to show that the Framers intended a national legal office. The successful experience of England, which had established a national Attorney General in 1472, and the unfortunate experience of the Colonies and the States, where decentralization produced mal-administration of the government's legal business, clearly demonstrated the need in America for a national Attorney General. Even the Continental Congress, which was entirely dependent for power on sovereign States, had felt the need in 1781 of considering a public attorney for the entire Union. It is doubtful that this same need was unrecognized only six years later when a truly national government was being erected.

The general factors put forth above indicate that the conduct of the Government's legal business was recognized by the Founders as a national function. The truth of this generalization must be found in specifics, for, as suggested in the outstanding document, History of the Formation of the Union Under the Constitution:

"In general, the national government is granted only such powers as are necessary for the proper discharge of purely national functions, such as could not be discharged by the states, acting either separately or through interstate compacts."

11 27

Under this concept of limited government a national Attorney Generalship may be said to have been anticipated only if there exists in the Constitution specific sections in which power is provided, either explicitly or implicitly ; for the creation of the office.

As has been noted already, there is no section of the Constitution which explicitly treats the office of Attorney General. It seems hardly necessary to point out, however, that the Constitution fails expressly to provide for a Department of State, a Cabinet, judicial review, Congressional investigations, Footnotes at end of article.

33-875-74- -27

and many other institutions which are considered fundamental to the governmental scheme of the United States. It is unavailing to argue that the Attorney Generalship like these other institutions, was not contemplated as a national function merely because it is not explicitly mentioned:

"Although the powers of the national government are limited in number, they are not limited in degree. Wherever the people have granted a power to the government it is a complete power, and that which is implied is as much a part of the Constitution as that which is expressed." 28

99 29

There are several grants of power in the Constitution which clearly imply the Framer's intent that there be a national legal office for the Government. The role of the Executive Branch of the Government demands that legal advice be available, for it is provided in Article II, Section 3, Clause 1, that "He [the President] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such measures as he shall judge necessary and expedient . . To propose legislation requires the benefit of attorney. The President is further commanded, both in his oath of office (Article II, Section 1, Clause 8) and in Article II, Section 3, Clause 1, to "take care that the Laws be faithfully executed. "To apply the laws of Congress on a day to day basis implies the quasi-judicial necessity of interpreting the meaning of the laws and assuring that their application in each particular case is commensurate with the intent of Congress and in keeping with the spirit of the Constitutional provision on which each particular law is based. For this, the President needs the constant advice of counsel. The Founders anticipated the President's need for advice when they provided, in Article II, Section 2, Clause 1, that he may require the opinion, in writing, of the principal officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices . . . ." Wisely, the Constitution does not enumerate these "Officers." It does, however, establish two classes of officers for the Federal Government and provides for their appointment:

66

"... he [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

[Article II, Section 2, Clause 2] Under this Constitutional provision, the President may acquire either a superior or an inferior officer, as Congress directs, to give him the legal advice essential to his office.

The exposition of the judicial power of the Federal Government indicates that there are certain cases which are national by nature-i.e., cases which are not amenable to adjudication by the several States. Article III, Section 2, Clause 1, of the Constitution specifies the extent of this type of litigation:

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Counsuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies between two or more States;-between a State and Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects."

These cases could not be dealt with by the individual States, but the question still remained as to whether a national system for the administration of justice would be devised, or whether the National Government would employ existing State court machinery to decide federal cases as it had done under the Articles of Confederation. The New Jersey Plan favored the latter method, whereas the Virginia Plan argued the former. This matter was debated at length in the Constitutional Convention, and finally a compromise was reached. On June 5, 1787, James Wilson, of Pennsylvania, and James Madison, of Virginia, proposed "that the National Legislature be empowered to institute inferior tribunals." ." 30 This proposal carried by a vote of eight States to two, with the New York Delegates divided. This compromise is embodied twice in the Constitution: Article I, Section 8, Clause 9, grants Congress the power

Footnotes at end of article.

"To constitute Tribunals inferior to the supreme Court," and Article III, Section 1, Clause 1, provides 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."

Certain types of litigation are, by definition, the prerogative of the National Government as a sovereign nation, and the Congress is empowered to provide a system for the national administration of justice. Both of these factors imply the existence of a national attorney. The authors of the Constitution did not explicitly establish an Attorney General for the United States, but they clearly anticipated the office and included provisions allowing for its creation. As noted in History of the Formation of the Union Under the Constitution.

"... the Framers showed the wisdom of adhering to main ideas, to a scheme of government, not a code of laws, leaving to Congress to fill in the details." "

THE JUDICIARY ACT OF 1789

The First Congress of the United States, which convened in New York City on March 4, 1789, and adjourned on September 29, 1789, may accurately be considered an extension of the Constitutional Convention. The character of both the Executive and Judicial Departments of the new Government depended on enactments made by this Congress. Thus, the Department of War was created on August 7, 1789; the Department of Treasury was approved by Presidential signature on September 2, 1789; the Department of State was established on September 18, 1789; and the bill to erect the Federal Judiciary was signed on September 24, 1789.

Although Congress officially convened on March 4, 1789, it was not until April 6, 1789, that the Senate was able to muster a quorum and conduct business. On its second day of business, April 7, 1789, it was

"Ordered, That Mr. Ellsworth, Mr. Paterson, Mr. Maclay, Mr. Strong, Mr. Lee, Mr. Bassett, Mr. Few and Mr. Wingate be a committee, to bring in a bill for organizing the Judiciary of the United States."

19 32

83

On April 13, 1789, Messrs. Carroll and Izard were added to the committee so that each State represented in the Senate at the time would have a hand in drafting this vital law.34

35

These ten Senators were eminently qualified: Oliver Ellsworth, of Connecticut, had been a State Attorney; William Paterson, of New Jersey, had served his State as its Attorney General; and Caleb Strong, of Massachusetts, had served as a County Attorney. The handwritings of there three men dominate the original draft of the Senate bill. With the exceptions of Ralph Izard, of South Carolina, Richard Henry Lee, of Virginia, and Paine Wingate, of New Hampshire, the committee was comprised of men who had practiced law. Ellsworth had been a Judge of the Connecticut Supreme Court of Errors; William Maclay, of Pennsylvania, had served as a Judge of the Court of Common Appeals in his State; Lee, though he never practiced law, had been a Justice of the Peace in Virginia and had a good knowledge of law; and William Few, of Georgia, had served in his State as a County Judge. Five of the committee membersEllsworth, Paterson, Strong, Few, and Richard Bassett, of Delaware-had been members of the Constitutional Convention. This was the caliber of men carefully chosen by the First Congress to provide a national system of legal administration. Included in their bill, first reported to the full Senate on June 12, 1789, was the first codification of the office of Attorney General for the United States.

36

37

As reported to the Senate by Mr. Lee, Section 32 of "a bill to establish the judicial courts of the United States" provided for the appointment of an Attorney General by the Supreme Court of the United States. Likewise, the Federal district attorneys, created by the same Section of the bill, were to be appointed by their respective Federal District Courts. As originally conceived, therefore, the Attorney General of the United States was to be an "inferior" officer of the Government, responsible mainly to the Supreme Court-"... Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments" (Article II, Section 2, Clause 2; emphasis supplied).

After the first reading on June 12, 1789, the bill was assigned a second reading for June 22. The second reading and Senate debate proceeded for the Footnotes at end of article.