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The Creation of the Department of Justice

H.R. 1328, 40th Congress. Bill establishing Department of Justice. Photo by Donna Sokol

It is a curiosity of history that while the office of the Attorney General of the United States was created by the first congress as a part of the Judiciary Act of 1789, the Department of Justice was not authorized until over eighty years later, in 1870.

Section 35 of the Judiciary Act provided

And there shall also be appointed a meet person, learned in the law, to act 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…

Section 35 also established the office of an attorney for each district court, an individual “learned in the law,” who was responsible for representing the United States in all civil and criminal trials before the district court, except for those before the Supreme Court. The act provided for the appointment of a marshal for each court, who could, as needed, designate deputies. The Attorney General was to receive compensation set by the Congress, but the local district United States Attorneys were paid fees based on their courtroom work. The United States Attorneys were not under the supervision of the Attorney General and would only report to him as circumstances might require.

Originally, being Attorney General was a part-time position and the incumbent maintained a private practice to supplement his salary. Congress did not even authorize the Attorney General to hire a clerk until 1818. Caleb Cushing, who served as Attorney General during the administration of Franklin Pierce, established the precedent of not conducting a private law practice.

From the beginning, the Attorney General advised the President when requested.  Edmund Randolph, George Washington‘s first Attorney General, provided an opinion challenging the constitutionality of a bill to create the Bank of the United States.  In this instance, Washington turned to Alexander Hamilton, who provided an opinion supporting the constitutionality of the bill. Washington chose to follow Hamilton’s guidance and signed the bill. Randolph later helped to draft Washington’s first veto message.

From 1797, the separate United States Attorneys were supervised, at least in cases involving revenue and debts, by the Treasury Department. At this time, much of the litigation conducted by these officers concerned revenue matters, such as disputes over the collection of tariffs and internal excise taxes. The Treasury Department would continue to have a role in supervising the work of local attorneys until the creation of the Department of Justice. Later in the 19th century, each executive department, and the Court of Claims, would be authorized to hire legal staff.

Only a few cases would arise under the nascent federal criminal law, the most famous of the early Republican period being the treason trial of Aaron Burr. For a number of years, the local attorneys were not authorized to employ staff, but they were later allowed to retain local counsel to assist as needed. These assignments were popular since they were often lucrative.

In 1861, Congress finally agreed that the Attorney General should have supervisory powers over the work of the United States Attorneys, although at first this role was shared with the Solicitor of the Treasury.

While there had been earlier calls for the creation of a separate legal department that would supervise the work of federal lawyers, it was not until after the end of the Civil War that Congress began to give serious consideration to the matter. In late 1867, the Senate Committee on the Judiciary asked Attorney General Henry Stanbery to respond to several questions concerning the efficiency of the government’s legal departments. Stanbery replied that a solicitor general was needed to argue the government’s cases before the Supreme Court, and that the centralization of the government’s legal business under one department would improve the quality of the work. In 1868, after the House Judiciary Committee asked Stanbery to respond to a similar inquiry, Representative Thomas Jenckes of Rhode Island introduced a bill to establish a department of justice. This bill was referred to the Joint Select Committee on Retrenchment, a committee impaneled to consider legislation to reduce the size and cost of government. In addition, the Chairman of the House Judiciary Committee, Representative William Lawrence of Ohio, introduced a similar bill which was referred to that committee.

1st Register of the Department of Justice and the judicial officers of the United States 1871. //lccn.loc.gov/97660524 Photo by Donna Sokol

Due to the impeachment and subsequent trial of President Johnson, no action was taken on either bill during the 40th congress. In 1870, during the 41st congress, Jenckes introduced another bill to create the department, this time with the support of Lawrence. The bill passed both the House and the Senate and was signed by President Grant on June 22, 1870; on July 1 of that year, the new department came into being.

Over the almost 150 years of its existence, the department’s role has greatly expanded. The practice of paying United States Attorneys based upon fees was discontinued in the late 19th century. The department took on the litigating of the government’s position in a number of policy issues such as civil rights, antitrust,  and the environment. The department’s role in criminal law has also expanded. A separate Criminal Division provides support for the prosecution of defendants in federal courts. In addition, the department oversees the Federal Bureau of Investigation and a number of related law enforcement agencies.

From a small beginning in 1870, the department is now one of the largest in the executive branch.

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