Article 2, Section 2, Clause 1

[Volume 4, Page 14]

Document 16

William Wirt, Duties of the Attorney General

3 Feb. 18201 Ops. Atty. Gen. 335

Sir: The order of the House of Representatives of the United States, of the 28th January last, "that the petition of Joseph Wheaton, and the accompanying documents, together with the report of the Committee of Claims, of the 6th January instant, thereon, be referred to the Attorney General of the United States, and that he be requested to report his opinion thereupon to this House," was handed me by Major Wheaton (the petitioner) this evening, together with the documents which are now returned.

The duties of Attorney General's office are specified by our laws, and are confined to the following heads:

1. "To prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned."

2. "To give his advice and opinion upon questions of law, when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments."

3. "To discharge the duties of a commissioner of the sinking fund."

The Attorney General is sworn to discharge the duties of his office according to law. To be instrumental in enlarging the sphere of his official duties beyond that which is prescribed by law, would, in my opinion, be a violation of this oath. Under this impression I have, with great care, perused all the documents which have been handed to me in this case, for the purpose of ascertaining whether the order with which I have been honored from the House of Representatives falls under either head of my official duties; and it appears to me that it does not. A reference to the law will show, I think, that this is indisputably clear.

I had the honor to intimate this impression in the case of Major Thomas, referred to me officially by the House of Representatives, in the session of 1818--'19, in the hope that if it was thought advisable to connect the Attorney General with the House of Representatives in that character of legal counsellor which he holds by the existing law towards the President and heads of departments, a provision would be made by law for that purpose.

No such provision having been made, and believing, as I do, that in a government purely of laws it would be incalculably dangerous to permit an officer to act, under color of his office, beyond the pale of the law, I trust I shall be excused from making any official report on the order with which the House has honored me. It is true that in this case I should have the sanction of the House for the measure; and it is not less true that my respect for the House impels me strongly to obey the order. The precedent, however, would not be the less dangerous, on account of the purity of motives in which it originated. The maxim is as old, at least, as republican Rome, that omnia mala exempla ex bonis orta sunt: on this ground I hope to be excused by the House of Representatives for declining their request. And I assure you, sir, that it gives me more pain to be thus obliged to decline it, than it would give me trouble to make the report; but in a conflict between my wishes and my sense of duty, there ought to be no question which I should obey. I may be wrong in my view of the subject. The order may be sanctioned by former precedents; but my predecessors in office have left nothing for my guidance; and I am constrained, therefore, to act on my own construction of the law as it stands.


The Founders' Constitution
Volume 4, Article 2, Section 2, Clause 1, Document 16
The University of Chicago Press