treaties, consuls and commercial agents are authorized to try, hear and determine "all cases in regard to civil rights, whether of person or property, where the real debt or damages do not exceed the sum of one thousand dollars, exclusive of costs, and upon full hearing of the allegations and evidence of both parties, to give judgment according to the laws of the United States, and according to the equity and right of the matter, in the same manner as justices of the peace are now authorized and empowered where the United States have exclusive jurisdiction. They are empowered as are the other consuls already specified for trials of offences and misdemeanors." 1

A consul when sitting alone may decide all cases in which the fine imposed does not exceed $500 or the imprisonment 90 days. In all such cases, however, if the fine exceeds $100 or the term of imprisonment for misdemeanor exceeds 60 days, the defendant or defendants may appeal the case to the minister, if allowed jurisdiction, either upon errors of law or matters of fact, under rules prescribed by the minister. Each of the ministers to China, Egypt, Siam and Madagascar is fully authorized to hear and decide all civil and criminal cases which come before him on appeal, and is fully empowered to decide finally any case upon the evidence already taken or to hear the parties further if that should be desirable to secure justice. On any final judgment in a consular court in China and Japan where the dispute involves more than $500 and does not exceed $2,500, exclusive of costs, an appeal is allowed to the minister. Capital cases for murder or for insurrection against the government of any of the countries named by citizens of the United States or for offences against the public peace amounting to a felony under the laws of the United States, may be tried before the minister in the country where the offence is committed if allowed jurisdiction. In the absence of a minister the Secretary of State may perform that official's judicial duties.

On any final judgment in a consular court in China and 2 Madagascar is now a dependency of France.

1 Section 4088.

Japan where the matter in dispute exceeds $2,500, an appeal is allowed to the District Court for the District of California. An appeal may be taken to the same court on any final judgment of the minister to China or Japan, given in the exercise of original jurisdiction if the amount involved exceeds $2,500. Appeal likewise may be taken in criminal cases. In all these cases the decisions of the California District Court is final.

CHAPTER XI

ATTORNEY-GENERAL

The Attorney-General of the United States is leading counsel for the Government, legal adviser to the president and titular head of the ramifying machinery of procedure in law appertaining to the executive division of the Government. As chief of the Department of Justice the attorneygeneral ranks fourth in the president's cabinet.

Originally this official was merely a lawyer appointed to assist the executive in solving knotty problems in law as a bank president or the head of a corporation or any man with large business interests retains permanent counsel to advise him. He received a salary for his services out of which he paid his clerical assistants and other expenses incidental to his employment. He was not necessarily a resident of Washington nor did he always maintain a permanent office in the capital.

As the country developed and the importance and scope of the Government work increased, the attorney-general's influence and usefulness likewise increased. It was not until 1870, however, that the Department of Justice was created. This event conferred both additional dignity and increased responsibility, making the attorney-general at once the official public prosecutor and administrative head of a bureau which supervises and directs the work of the Federal district attorneys' offices throughout the country as well as the offices of the United States marshals.

The Department of Justice was not established without opposition. Such opposition as there was arose rather from an ignorance of the growth of the legal business of the executive branch of the Government and consequently the increased need of a department which would systematize and

11

161

concentrate that business, than from any desire to obstruct the actual establishment of a new department. There was indeed opposition shown in the interest of the selfish lawyers who had been hitherto retained to do special work for the Government which the attorney-general or properly authorized employees under his permanent control should have done. It is needless to say that the expense of retaining outside counsel was out of all proportion to the service rendered. It was, therefore, with a view to greater economy as well as greater efficiency both in uniformity of performance and in consistency of result that the agitation for a recognized department with a representative at the council table of the president, came about.

The first practical step toward the establishment of a Department of Justice was taken on the twelfth of December, 1867, when the House of Representatives adopted a resolution instructing the Judiciary Committee to consider the propriety of reporting a bill to consolidate all the law offices of the Government into a single department. On the nineteenth of February, 1868, a bill to establish a law department, as it was called, was reported by Congressman William Lawrence of Ohio and referred to the Judiciary Committee. The bill was reported back by that committee on the fifteenth of May, with an amendment in the nature of a substitute for certain minor features of the bill as originally drafted. The amended bill was favorably reported but the pressure of other business precluded its passage in that session of Congress.

Early in the next Congress Representative Thomas A. Jenckes of Rhode Island introduced a bill along the same lines as that reported in the preceding session. This bill eventually became a law after some slight opposition. In stating the purposes and scope of his bill, Representative Jenckes said:

It does not propose to create a new department in this Government, but simply to transfer to an existing Department some things properly belonging to it, but which are now scattered though other Departments. It proposes to make one symmetrical whole of the law Department of this

Government; and in order to understand its application to the existing state of things I will review the history and origin of these law officers.

Under the judiciary act of 1789 it was provided that a law officer should be appointed in each district of the United States, to be called the district attorney, and that a person learned in the law should be appointed an Attorney-General of the United States; one chief law officer at the seat of the Government, with subordinate law officers in each district of the United States. That continued to be the law force, if I may use the phrase, of this Government from 1789 down to 1830. In that year an act was passed to establish the office of Solicitor of the Treasury. The tradition concerning the passage of that law, as I have heard it, is that it was passed to create an office for a particular person, in the expectation of reconciling the hostility breaking out between the then President and Vice-President of the United States. The office was created, but the hoped-for result was not obtained. In many respects that statute was anomalous. It created a law officer in one Department of the Government for certain purposes, placing him to a certain extent under the authority of the AttorneyGeneral, but to a greater extent making him independent. These continued to be the principal law officers until the establishment of the Court of Claims in 1855, when it became necessary, in order to have the Government properly represented before that court, to have a solicitor to manage its cases. Subsequently an assistant solicitor was created. The law business of the Government increased, and in 1859 an act was passed authorizing the appointment of an assistant attorney-general.

At the commencement of the rebellion, therefore, the law officers of the Government, were the Attorney-General, the solicitor of the Treasury, the solicitor of the Court of Claims and the assistant Attorney-General. In 1861, there being a pressure upon the law department, the AttorneyGeneral was authorized to employ assistants to the district attorneys, and under this power eminent lawyers were employed in different parts of the United States to conduct special cases in each of the districts. At this time the law business of the Government greatly outgrew the capacity of the persons authorized to transact it, and the number of outside counsel, appointed subsequent to 1861, was greater than all the commissioned law officers of the Government in every part of the country. The attention of the Committee on Retrenchment, soon after its organization in the ThirtyNinth Congress, was called to the great expense the Government was put to by the employment of these extra counsel. They required reports from the different departments by order of the House, and they obtained some knowledge of the extent to which this power was used, if not in some cases abused.

Early in the Fortieth Congress, a bill was prepared to remedy this evil, and referred to the Committee on Retrenchment; and a similar bill with the same design was offered by the gentleman from Ohio (Mr. Lawrence) and referred to the Committee on the Judiciary. These bills had the