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a responsibility by no means light to a sensitive and well-organized mind."

This is the remark of one who, himself a member of the cabinet and a colleague of Mr. Wirt during the administration of Mr. Adams, had ample opportunity to witness the labours of his friend, and to become practically acquainted with the delicate and responsible duties of the office.

We may form some estimate of the nature and extent of these labours, from the record of them which is preserved by the government, and which was published by the order of the House of Representatives of the Twenty-sixth Congress, as one of the documents of its second session.* This printed record of the opinions of the Attorneys-General engrosses a volume of nearly fifteen hundred pages, of which more than five hundred are appropriated to those of Mr. Wirt. "They all," says Mr. Southard, speaking of these opinions of Mr. Wirt, "relate to matters of importance in the construction of the laws; many of them to the most difficult and interesting subjects of municipal and constitutional law, as well as the law of nations, which occurred during three presidential terms. They will prevent much uncertainty in that office hereafter, afford one of the best collections of materials for writing the legal and constitutional history of our country, and remain a proud monument of his industry, learning and talents."

I have already said that Wirt introduced some improvements into the mode of conducting the business of this office. We owe to him this record of the opinions of the Attorney-General, which is now duly preserved, and by which a very obvious uniformity and consistency of decision in the construction of laws are maintained.

Within a short time after Wirt's induction into this office, he addressed a letter to the Chairman of the Judiciary Committee of the House of Representatives, calling the attention of that Committee to the very defective organization of this branch of the government machinery. This letter explains the nature of the defects complained of so fully, and so cogently enforces the duty of further legal provision to render the office efficient, that I regard it, even at the present day,

* Document of the House of Representatives, No. 123.

as worthy of the consideration of the country, and therefore present it to my readers entire. I am not aware that it has ever obtained a greater publicity than it found amongst the members of the Judiciary Committee of 1818, by whom it was consigned to the pigeon-holes of the Clerk's office, and to the eternal sleep of the files of that session.

SIR:

TO THE HON. HUGH NELSON,

CHAIRMAN OF THE JUDICIARY COMMITTEE, HOUSE OF REPRESENTATIVES.

ATTORNEY-GENERAL'S OFFICE, March 27, 1818.

I beg leave to call your attention to the state of this office, and to some material defects which, I think, exist in the laws in relation to it; with the view that the subject, if you shall think it of sufficient importance to merit this course, may be presented, through your committee, to the consideration of Congress, before they rise.

The commission of the Attorney-General "authorizes and empowers him to execute and fulfil the duties of that office, according to law.” The only law which points out those duties, is the act of Congress of the 24th of September, 1789, entitled an act to establish the judicial courts of the United States, the thirty-fifth section of which act creates the office, and designates its duties in the following words: "And there shall 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 the 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 requested 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."

It is to be observed that there is no duty which the President or any head of department performs, which does not involve some principle of law, under the head, either of the natural or conventional law of nations, constitutional law, or municipal law; consequently there is no duty which belongs to either of those officers, on which he has not the right to require the opinion of the Attorney-General, and on which it is not continually required; and in relation, at least, to questions on municipal law, which are incessantly occurring, it is understood that the heads of departments consider the advice of the law officers conclusive.

In the operations of an office whose sphere of action is so wide, and whose decisions are of such extensive and unremitting practical effect, it would seem to be of consequence to the nation that some de gree of consistency and uniformity should prevail: but, it is obvious,

that these can be attained in no other way than by putting the incumbent, for the time being, in full possession of all the official opinions and acts of his predecessors.

Under this impression, when I had the honour of receiving the appointment, my first inquiry was for the books containing the acts of advice and opinions of my predecessors: I was told there were none such. I asked for the letter-books, containing their official correspondence: the answer was, that there were no such books. I asked for the documents belonging to the office; presuming that, at least, the statements of cases which had been submitted for the opinion of the law-officer had been filed, and that I should find, endorsed on them, some note of their advice in each case; but my inquiries resulted in the discovery that there was not to be found, in connection with this office, any trace of a pen indicating, in the slightest manner, any one act of advice or opinion which had been given by any one of my predecessors, from the first foundation of the federal government to the moment of my inquiry. Thus, the gentlemen who have held this office, in succession, have been in constant danger of being involved themselves, and involving the departments which depended on their counsel, in perpetual collisions and inconsistencies; exposing the government to that kind of degradation which never fails to attend an unsteady and contradictory course.

In noticing the omission to keep these records, and preserve the statements and documents, I am very far from intending any censure on my predecessors: for no law had enjoined it on them as a duty; and from the multitude and variety of questions which are unavoidably pressing upon this office, throughout the year, it is very apparent that the plan which I suggest could not have been executed, without an expense, in clerk-hire, office-fuel, stationery, &c., for which there is no provision by law.

After this explanation, I submit it to you, sir, with great deference, whether it would not be expedient that some provision be made, by law, for keeping a record of the opinions and official correspondence of the Attorney-General, in his office; and for preserving in his office the documents submitted for his advice.

Again the subjects on which the Attorney-General is occasionally consulted, and those on which he has to act in the Supreme Court, turn, not unfrequently, on the local laws of the several States. But these have not been furnished to his office; and the omission is a serious practical evil. Would it not be well that the office of the Attorney-General should be supplied with these laws?

Another defect seems to me to exist in the law as it now stands. You will observe that the only law which prescribes the duty of the Attorney-General, and which I have already quoted, limits the obligation upon him, and, consequently, limits his right to give official advice and opinions, to cases in which he shall be called upon, by the

President, or by any of the departments, touching any matters which may concern their departments.'

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But, I am told, (and, in my short experience, I have already found it true, in part,) that the advice and opinion of the Attorney-General, in his official character, are called for by committees of Congress, standing and special, by all the District Attorneys, Collectors of Customs, Collectors of the Public Taxes, and Marshals throughout the United States, by Courts martial, (military and naval,) wheresoever they may sit, &c., &c.

If it be advisable to open the office of the Attorney-General to applications of this kind, I submit it to you, sir, whether it would not be expedient to have it provided for by law. 1. That the several officers and public bodies which have been mentioned, (instead of resting on the personal courtesy of the Attorney-General,) may be authorized to call for his opinion, as a matter of right.

And 2d, (which strikes me as being of equal, if not superior consequence,) that the Attorney-General himself may be justified in giving an official opinion in these cases.

For, in a government of laws, like ours, it seems to me of importance that the influence of every officer should be confined within the strict limits prescribed for it by law.

It cannot be questioned, from the connection of the AttorneyGeneral with the executive branch of the government, that his advice and opinions, given as Attorney-General, will have an official influence, beyond, and independent of, whatever intrinsic merit they may possess and whether it be sound policy to permit this officer or any other under the government, even on the application of others, to extend the influence of his office beyond the pale of the law, and to cause it to be felt, where the laws have not contemplated that it should be felt, is the point which I beg leave to submit to your consideration.

There is, however, a strong objection to any new provision which should go to open the office of the Attorney-General, as now organized, to applications beyond the provisions of the act of 1789. It is this: I am convinced that no single unassisted individual, whatever may be his strength, his habits of industry, or the system and celerity of his movements, could discharge, in a manner satisfactory either to himself or the nation, the vast load of duties which would be thus thrown upon him, without devoting himself to them, solely and exclusively. The very frequent calls which are regularly and properly made on the office, under the act of 1789, and the careful and elaborate examination which it is often necessary to bestow upon these subjects, are found to be sufficient, in connection with the Attorney-General's duties in the Supreme Court, to give the office, at present, almost constant occupation: and if, in addition to those duties, he shall be placed under a legal obligation to answer all the other calls which

have been mentioned, he must, unavoidably, abandon entirely the individual pursuits of his profession, and rest, for the support of his family, on the salary attached to the office. Even under the duties, as they now exist, very little time is left to the Attorney-General to aid the salary of his office by individual engagements; a fact which may explain, in part, the frequent resignations of this office which have heretofore occurred.

I would not have troubled you with these suggestions, at this time, but that the subject strikes me as being of so much practical importance to the nation, as to merit consideration: and that it relates to an office whose defective organization, however grievous to the incumbent, or injurious to the public, would not be apt to force itself on the notice of others.*

I have the honour to be, sir,

With very great respect,
Your obedient servant,

WM. WIRT.

CHAPTER IV.

1818.

LETTER TO POPE. VIEWS IN ACCEPTING THE POST OF ATTORNEY-GENERAL.-LETTER TO GILMER.-CORRESPONDENCE WITH MR. ADAMS. AN AMENDED EDITION OF THE SKETCHES CONTEMPLATED. LETTERS TO CARR. -THE ATTORNEY-GENERAL ADMITTED TO THE BAR OF BALTIMORE. THE RULE OF COURT. -MEETS PINKNEY.- RIVALRY BETWEEN THEM. ADVICE TO GILMER. A MISUNDERSTANDING AT THE BAR AND RECONCILIATION.-LETTER TO DELAPLAINE. REMARKS ON BIOGRAPHICAL WRITING.

--

HAVING departed somewhat from the regular succession of dates in the correspondence, with a view to bring together what was appropriate to the publication of the Biography of Henry, and the ap

* Although Congress did not act immediately upon the suggestions of this letter, they, doubtless, had their influence, in the subsequent proceedings of that body, in increasing the salary of the Attorney-General, and in providing him a proper library. Mr. Wirt's administration of the office had, also, its due weight in adjusting that more distinct understanding of the nature of his duties, in connection with other departments of the Government, which now exists.

VOL. II.-6

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