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The Inflation of the Attorney-General | The Nation

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The Inflation of the Attorney-General

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We took occasion once or twice, during the Boutwell-Richardson period, to call attention to the enormous accession to the powers and responsibilities of the Secretary of the Treasury which had resulted from the relation of the General Government to the banks and the currency created by the war. This officer at the foundation of the Government was charged simply with the duty of collecting the revenue, keeping a proper account of it, and disbursing it in the manner and for the objects prescribed by Congress. This was the whole extent of his functions down to 1860. He by no means occupied the position of an English chancellor of the exchequer or of a Continental minister of finance. He was not authorized or expected to frame schemes of taxation, or estimates of receipts or liabilities. He was not allowed to have a seat in Congress, or to exert any direct influence on that body in favor of or against any financial plan. The report which Alexander Hamilton made on the finances of the infant Republic was called for by a special resolution of Congress. His successors as a rule confined themselves in their annual report to the President to a recital of the manner in which the formal work prescribed by the legislature had been done in their department. The more enterprising, perhaps, made a few suggestions, which rarely received any attention; but the more modest or timid were at perfect liberty to make no suggestions at all. This state of things whether desirable or undesirable was the state of things created by the Constitution and contemplated by Congress in establishing the Treasury Department. The Secretary of State was, in short, a sort of head-clerk, who looked after the financial business of the Executive and supplied Congress with information when he was asked for it. The management of the finances, in the higher sense of the term, was reserved to committees of the two Houses, and especially to the Committee of Ways and Means of the Lower House, which might communicate with the Secretary of the Treasury if it pleased, but was not bound to do so.

This essay, from the October 1, 1874, issue of The Nation, is a special selection from The Nation Digital Archive. If you want to read everything The Nation has ever published on the politics of the Justice Department, click here for information on how to acquire individual access to the Archive--an electronic database of every Nation article since 1865.

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“We are in the classic fog of war,” says Stephen Cohen.

How all this was changed by the war we do not need to tell over again. Mr. Chase, through the terrible and unlooked-for necessities of the case, was for a time forced into the position of a real minister of finance. At that period, the country was only too glad to allow anybody to assume responsibility who was willing to do so. Mr. McCulloch, presuming on the precedent thus created, endeavored for a short time to play the same part, and would probably have been allowed to play it if it had not been for his connection with Andrew Johnson. But his successor, who was more favorably situated, and was by no means bashful, made the best possible use of Mr. Chase's example. By the end of Grant's first term, the Secretary of the Treasury had armed himself with powers such as neither Colbert nor Turgot, nor Fould nor Pitt, nor Peel nor Gladstone, ever dreamed of claiming. Not only was he the chief of a great many thousand officials holding their places, not during good behavior but during his pleasure, but he was armed with discretion in the construction of obscure, vague, and contradictory revenue laws, in the remission of fines and penalties of enormous amount to which the most honest-minded manufacturer, trader or merchant might any day render himself liable; was able to build up national banks by his intelligence or ruin them by his hostility; and, though last not least, was controlling the money market, and raising and lowering the prices of goods by sales of gold made when he pleased, and by expanding and contracting the paper legal-tender currency of such times as he thought proper, over a margin amounting to one-seventh of the whole issue. Nobody, we believe, was ever in modern times, and in a civilized country, put in possession of such power over men's property and business as Mr. Boutwell exercised; yet in one of his reports he actually, with a curious simplicity and self-confidence, asked Congress to enlarge it still further. Now, all this may have been good or bad; which it was, we shall not discuss here. We merely wish to point out now that this expansion of the functions of the Treasury Department has occurred indirectly, without specific legislation, and without its being foreseen or expected by the country, and without proper provision being made for it in the shape of responsibility. No man should, under a constitutional government, be armed with such powers as Mr. Boutwell possessed unless the public is at the same time furnished with the means of calling him to account and compelling him to explain himself at short intervals.

We wish to-day to direct attention to the fact that the very same process of inflation is now going on in the Attorney General's office, or, as a recent act has magnificently designated it, the "Department of Justice." When this officer was first created by Congress in 1791, it was simply provided that he should be a "meet person, learned in the law," whose duty it should be to conduct such suits in the Supreme Court as concerned the United States, and give legal advice to the President and heads of departments when he should be asked for it. This modest position he occupied down to 1861, when, in view of the complications occurring in different parts of the country, he was charged with the superintendence and direction of the United States marshals and district-attorneys in the discharge of their duties, and they were ordered to report to him. This was a very natural and proper arrangement, and when it was made probably no one had the least idea of what would grow out of it.

What has grown out of it is this: As a result of the Reconstruction Acts and the Constitutional Amendments, a large number of the Southern States have been divided between, not two political parties, but two bitterly hostile factions, which are only prevented from flying at each other's throats by the armed force of the United States, and one of which is led by adventurers from the North, who act under the superintendence or advice of the United States marshals, who have the control of the soldiers. The marshals are, in truth, everywhere political chiefs, who derive their strength from the fact that if the worst comes to the worst--that is, if their opponents lose all patience--they can bring up the troops. The importance of such an officer in States which are liable after any election to have two governors and legislatures disputing each other's claims to power, may be readily imagined. The control of the troops in the Southern States has, therefore, been transferred to the Attorney-General, who moves them on the marshal's report; for the claimants who demand Federal protection of course act under the marshal's direction. Indeed, the history of Louisiana since 1872, which has been so often told, fully illustrates the whole matter. Now, the result is that the Attorney-General's office has become a kind of political bureau, to which competitors for the government of sovereign States carry their petitions and proofs. Southern governors now report to him on the State elections, on the general condition of the State, on its finances and taxation, its criminal justice, and take his advice as to internal legislation. Political parties send in to him statements of their grievances, and ask him for redress against the tyranny or exactions of the local rulers, and he accepts all the power and influence which the position brings him with great equanimity. He snubs the proud, warns the unruly, discourages the wicked, and cheers on the faithful supporters of the Administration. His functions, indeed, are a combination of those of the French Minister of Justice and Minister of the Interior and of the Governor-General of British India. That is, he has the supervision of the offices of the law courts in the discharge of their ordinary duties; he has the direction, also, of a kind of prefects of departments in the United States marshals, whose functions are semi-political; and his relations to the Southern governors are very like those of the Governor-General to the native princes who are still allowed to hold their territory. He admonishes them if they administer badly, upholds them by force if he approves of them, and, as in Kellogg's case, calls on them to resign if he thinks the public interest requires it.

It must be admitted that this is a remarkable kind of officer to be evolved in a dozen years out of a "meet person, learned in the law," charged with giving his opinion when asked for it. Moreover, unless some great change comes over the South, of which as yet there is little sign, his functions are likely to be still further enlarged. It must not be supposed that even now they are limited to cases in which the interference of the Executive is permitted by the Constitution. In Arkansas, the troops were employed under his orders for six weeks, not in defending the State government against insurrectionary violence, but in preventing the de facto, and, as it was afterwards decided, the de jure Governor from using the State forces to expel a usurper, who had seized the State-house, and held possession of it with an armed mob. For this the Attorney-General did not take the trouble to offer the slightest excuse. Finally, the officer now exercising these extraordinary powers is one in whose selection the people have no voice, and who has not displayed any talent either legal or political. When he was nominated for the Chief-Justiceship, the country was thoroughly indignant. He is, moreover, acting as the servant of a President who treats his ministers as members of his staff, and all criticism of them by the public as an impertinence unworthy of notice. We draw no conclusions from these facts. We simply offer them as food for reflection.

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