The place and functions of the attorney-general remained for many years after 1789 subjects of reflection on the part of thoughtful men. Several Presidents, beginning with James Madison, urged reform in the office, though apparently with no clear notions at first as to what measures of reform were needed. The attorneys-general themselves were helpful in the solution of the problem, none more so than William Wirt and Caleb Cushing. The problem became clearer under the stress of numerous circumstances in the growth and requirements of federal administration. By the close of the Civil War it was forced into the foreground; and Congress, in 1870, acting after long deliberation, established the office on a new footing, giving the attorney-general a place as head of the department of justice. The act of 1870, it may be added, made no change in law as to the duty of the attorney-general in giving official opinions.[1]
I
Before the outbreak of the war in 1812, Madison called attention to the accumulation of business in the various departments of the government, in particular in the war department, which was disproportionately burdened. This accumulation was due largely to the peculiar state of our foreign relations that for years had involved all the secretaries in exhausting labors. These relations had affected the entire administrative machinery of the federal government.[2] As a farewell word in his last annual message of December, 1816, Madison urged upon Congress the propriety of establishing an additional executive department, "to be charged with duties now overburdening other departments and with such as have not been annexed to any department. . ."[3] To another kindred matter he drew attention in these words:
