IV

There is ground for believing that Caleb Cushing was the first attorney-general of the United States who held himself strictly to the residence obligation and refrained from the general practice of law.

Coming into office in March, 1853, just after the salary of the attorney-general had been raised to eight thousand dollars, Cushing at the start was placed, in respect to salary, on an equality with his cabinet associates, and accordingly had no very valid reason for entering into private practice in or outside of Washington. Like the other cabinet associates of Pierce, Cushing kept his place throughout the four years' term. He left behind him a collection of official opinions that for extent alone has never, before or since his day, been equalled. They fill three in the series of volumes known as Official Opinions, twenty-six of which have thus far (1909) been issued.' It may be doubted whether Pierce had an abler associate among his advisers than Cushing, though Jefferson Davis was secretary of war and William L. Marcy was at the head of the state department. Certainly there was no more trusted man in the cabinet. Pierce held him in the highest regard. That he was of real assistance in keeping the cabinet together is a matter of authentic history.2

Cushing left to posterity quite the most careful considerations on the historic development of the attorney-generalship up to his time. These have been occasionally quoted since they were written. They probably did something to help establish the attorney-general as head of the department of justice in 1870. That Cushing perceived the need of some such organization is clear. Like Wirt, Cushing determined to understand the structure and functions of his office, so far as the laws and the practices of his predecessors could reveal them. Instead of presenting his conclusions—as Wirt had done-to

1 Cushing's opinions fill vols. v, vi, vii, covering over 2000 pages.

2 Memorial of Caleb Cushing (Newburyport, 1879), pp. 169 et seq. Vol. 7 Opinions of Attorneys-General, pp. 453-482. The Memorial gives various useful clues to Cushing's career. There is no biography of Cushing yet written.

457 the chairman of a committee of Congress, he offered them to the President. They were written under date of March 8, 1854, at the end of his first year's experience. With the technical portions of the "opinion" relating to the attorney-general and the courts, this investigation is not concerned. There are, however, some reflections which throw light on the relation of the office to the executive.1

According to the original theory of the office, the attorneygeneral was prompted if not actually authorized to engage in private practice of the law. This custom in the case of the English attorney-general-from whose office it is probable that we drew some of the features of the American office-was well established in 1789. But the English attorney-general was not then a member of the cabinet, nor is he so today."

Cushing doubted the expediency of allowing the head of a department" under any circumstances" to continue in the practice of the law. That such a custom might once have been justifiable, he was willing to admit. As he expressed his thought

Formerly, in an age of simple manners, when the public expenditures were less, the number of places less, the population of the country less, the frequentation of the capital less, the ingenuity of self-interest less .... a secretary, eminent in the legal profession might, without the possibility of reproach or suspicion of evil, take charge of private suits or interests at the seat of government. He may do so now, perhaps ; but that is not so clear as it formerly was; and it is not easy to perceive any distinction in this between what befits one and another head of department. However all these things may be, the actual in

1 The considerations of Cushing were published in vol. 6 Opinions of the Attorneys-General, pp. 326-355. They appeared also in The American Law Register (December, 1856), vol. v, pp. 65-94. I have found the latter volume most convenient to use.

2 American Law Register, vol. v. Anson, Law and Custom, pt. ii, page 92. The Crown (2d ed., 1896), pp. 201-202. In 1818 the absence of the English attorneygeneral from the cabinet impressed Richard Rush as strange and worthy of remark. He said that “in the complicated and daily workings of the machine of free government throughout a vast empire, I could still see room for the constant presence of the attorney-general in the cabinet." Memoranda of a Residence at the Court of London (2d ed., Phila., 1833), page 63.

cumbent of this office. . . experiences that its necessary duties are quite sufficient to task to the utmost all the faculties of one man; and he willingly regards those recent acts, which have at length placed the salary of his office on equal footing with other public offices of the same class, as intimation at least that the Government has the same precise claim on his services, in time and degree, as on those of the Secretary of State or the Secretary of the Treasury. . .'

From this passage it is clear that Cushing considered himself not only as the peer of his cabinet associates, but as in some sense head of a department, though he occupied what was technically known as an "office." It was to this conception of his position to which General Benjamin F. Butler of Massachusetts referred when, in 1879, Butler paid a tribute to Cushing, remarking that Caleb Cushing "raised the office of Attorney-General, and organized it to be in truth and in fact a department of the Government. . ." At any rate, many of Cushing's suggestions toward a better organization of the work of the attorney-general were enacted into the laws between March, 1854-the date of his "opinion"—and June, 1870, when the attorney-general was named in the law as head of the department of justice.3

Cushing was clear regarding the real reason for the existence of the cabinet. It was a means of attaining unity in executive decision and action. As he remarked, this unity "cannot be obtained by means of a plurality of persons wholly independent of one another, without corporate conjunction, and released from subjection to one determining will. . ." With reference to the principal officers, he wrote that

the established sense of the subordination of all of them to the President has . . . . come to exist, partly by construction of the constitutional duty of the President to take care that the laws be faithfully

1 American Law Register, vol. v, page 93.

2 Memorial of Caleb Cushing (1879), page 169.

Easby-Smith, The Department of Justice (1904), pp. 15-16.

American Law Register, vol. v, page 81. Cushing devoted one opinion to the subject of the "Relation of the President to the Executive Departments," Aug. 31, 1855. Vol. 7 Opinions of the Attorneys-General, pp. 453-482.

executed, and his consequent necessary relation to the heads of departments, and partly by deduction from the analogies of statutes. . .1

66

Cushing's usefulness to Pierce, his talents, his learning and his persistent industry-all these matters need not make the student overlook certain weaknesses of which his contemporaries were aware. Mr. J. F. Rhodes has called attention to the fact that Lowell satirized Cushing as early as 1847 for his lack of consistency and principle in politics. Rhodes likewise cites Thomas H. Benton's criticism of him in a speech of July 21, 1856. In his speech, Benton acknowledged that he was the "master-spirit" of Pierce's cabinet, but he regarded him as unscrupulous, double-sexed, double-gendered, and hermaphroditic in politics, with a hinge in his knee, which he often crooks, that thrift may follow fawning. He governs by subserviency..."3 In brief, Cushing never could win completely the trust of his fellows. Yet he proved a very useful statesman. Both Buchanan and Grant at different times sought his aid. He was among the legal experts chosen as counsel to aid in the Geneva Tribunal. Grant named him as chief justice of the supreme court, but was induced to withdraw his name from the Senate.

It seems fair to conclude that during a long life, extending from 1800 to January, 1879, in no task did Caleb Cushing prove more useful than in that of the attorney-generalship. He was the ablest organizer that the office had had since its establishment in 1789.*

1 American Law Register, vol. v, page 71.

2 Rhodes, History of the United States since the Compromise of 1850 (1892 et seq.), vol. i, page 392. Lowell's satire is quoted by Rhodes from the Biglow Papers as follows:

Gineral C. is a dreffle smart man:

He's ben on all sides thet give places or pelf;

But consistency still wuz a part of his plan,—
He's ben true to one party-an' thet is himself. . .

The Writings of James Russell Lowell (Boston, 1890), vol. viii, page 66.
3 Quoted from Von Holst, History of the United States, vol. iv, 263, note.

For the general facts of Cushing's career, I have relied somewhat on Rhodes (History, etc., especially vols. i, pp. 388 et seq.; iii, pp. 192, 201, 521; vi, pp. 364– 365; vii, pp. 27-28) and on the material in the Memorial (1879). The generalization is based upon this, taken into connection with the evidence revealed in his three volumes of Opinions heretofore cited.

V

The Civil War brought great pressure of work on the office of the attorney-general. By that period an administrativejudicial organization had grown up that proved under the new circumstances distinctly out of joint. Various legal officers in the separate departments gave opinions to the secretaries or heads that were at times inconsistent with, if not actually opposed to, those of the attorney-general. Many tasks were duplicated. In brief, there was no definite provision in law which unified and brought to one master mind the direction of the legal work of the government. As a consequence that work lacked symmetry and consistency.

The four chief law-officers in 1861-with the dates of their separate establishments-were the attorney-general (1789), the assistant attorney-general (1859), the solicitor of the court of claims (1855) and the solicitor of the treasury (1830)—the latter a rather anomalous official in the treasury department who, for certain purposes, was under the direction of the attorney-general. Subordinate to these and controlled by the attorney-general from 1861 was a corps of scattered district attorneys. The whole organization was loosely knit and disjointed. As was truly said, the law business of the government during the war period "greatly outgrew the capacity of the persons authorized to transact it and the number of outside counsel . . . appointed subsequently to 1861 was greater than all the commissioned law officers of the Government in every part of the country. . .

The cost of this extra counsel was large, how large it would probably be impossible with even a fair degree of accuracy to say. Figures were brought forward in Congress to show that nearly half a million dollars ($475,190.42) could be thus accounted for during a portion of the years from 1861 to 1867. More than half that amount ($258,018.44), it was said, went

1 These facts can be gathered from Easby-Smith, The Department of Justice, pp. 16, 28-30. They are commented upon in the debates on the plan of a new organization, 1867-1870, in Congress. See especially Congressional Globe, 41st Cong., 2d sess., pt. iv, p. 3035 (April 27, 1870).

Congressional Globe, 41st Cong., 2d sess., pt. iv, page 3035.