The New York herald., 1851-07-01
The Conssitutionality OF the Canal BILL
The P0Wers Of the Attorney General.

49, S"ssss~sAOmoAlty Oh the C0uol BILL
The Powers OF the Attorney General.
TO THE EDITOR OF THE NEW YORK HERALD.
In your paper of the 9th instant is an editorial
article entitled "the constitutionality OF the Canal
bill to be tested" which seems to me to be founded
on misconception Of the powers and duties of the
Attorney General. rely upon your iberality for
an opportunity to present to your readers
some observations on the principle involved in your
remark That principle is, that the Attorney
General is "the peoples authorized legal agent,h
and as such, may, in his official character, and by
virtue OF his office, apply to the courts to restrain
the ohcers OF the State from executing duties de-
majorities in both houses Of the Legislature. and
approved by the Governor. If he possesses such aa
authority to represent the sovereignty of the State
for the purpose of arresting an act Of the same
sovereignty, through its government in one case he
possesses it in all cases; and of course it becomes
his duty to exercise it in all cases where he deems
an act unconstitutional.
The Attorney General is no more or less than any
other attorneyatlaw, whose business it is, according
to Bacon to prosecute and defend for his client From
the degrees Of barrsters and sergeants, Blackstone
tells US, 'some are usually selected to be his majes-
s counsel learned in the law, the two principal Of
which are called his attorney and solicitor general"
These kings counsel, he says, "answer in some
measure TO the advocates of the revenue among the
Romans; for they must not be employed in any
cause against the crown without special license"
The crown in England means the government
The Attorney General is the attorney for the govern
ment. That government is the Legislature.
When it speaks in the forms furnished by the con-
stituton, represents and speaks for the sovereign
people. AS an attorney for a private individual
cannot act against his client, the attorney for the
government cannot act agains; it. 1t would not be
more absurd for an individual to employ an attor-
ney to sue him, than it would be for State or
corporation to pay lawyer to prosecute itself If
citizen should hire an attorney by the year to at.
tend to his law business, he would be amazed to
find him prosecuting in the name Of his employer,
one of his clerks for doing some act which he had
ordered
The obligation of every executive officer is to
perform the duties eDjoined on him by the govern
ment Even the Governor is, by the constitution,
''to expedite all such measures may be resolved
upon by the Legislature, and take care that the
laws are faithfully executed" And is an inferior
executive officer to do less! If he seriously doubts
the constitutonality of the act imposing a duty
upon him, he may resign or he may decline to act
until compelled by the judgment Of court, OBJ
tanned at the instance of party interested in the
performance of the duty. But how can he impeach
his principal and arragn his acts!
IL would be setting up his own judgment-his
own conscience-against that of the majority ofthe
people through their representatives, and if once
admitted, would arrest all the functions of govern
ment Least Of all, can the Attorney General un-
dertake to judge for another officer, and apply to
the courts to restrain him from performing duty
imposed on him by the government. As already
shown, it results, from the very nature of his Office
and employment, that he is to defend the govern
ment and its officers in all judicial proceedings
lating to official acts; ard it results, also, from
the absence of any provision for substitute. Such
has been the universal usage in England, in this
State, and in all the States of the Union and not
an instance can be produced of an Attorney General
ever asking the interpostion of court to prevent
the full execution of any law passed by his own 60
vsrI ment. Every statute of this State in relation
to the duties of the office, afirms the principle here
stated. "Whenever required so to do by the Co
vernon, &c, the Attorney General shall attend the
ductng the suits and the prosecutions of the people
OF this State. cit shall be the duty Of the Attor
ley General, at the request Of the Governor, the
Secretary OF Stae, the Comptroller, the Treasurer
&c., TO prosecute every person who shall be charged
by either of those officers with indictabe offence
in violation Of the laws which such officer is spe-
cialy required to execute in relation to matters
connected with his department"
Suppose prosecution directed by the Comptrol-
Ter for wlful neglect Of sbordnate officer, or for
malfeasance in the performance of a duty enjoined
by law. so far from the Attorney General being
at liberty to question that law, he would be bound
to enforce 1t. No proposition can be more extraya-
CANT IN theory, or more mischiev)us in practice,
ihan that Viii IN would place the Attorney General
above the Legislature and the Governor, 70 super
wise their actions, to exercise kind of veto upon
their measures to repudiate the acts of his client,
and, at his option, arrest their execution.
Nor does this denial Of his right, in his official
capacity 10 question the acts of his employers and
defeat their WILL in the least obstruct or prevent
any egitimate or regular proceedings to test the
stiution ility of any law Every person injured
by its operation has abundant means of bringing
the question befJre the proper tribunals. The law
ana the courts are open for very such case. Afug
tive claimed under the recent law of Congress does
not wait for the interposition of the Attorney Gene
raj OF the United States to restrain the judges and
marshals from executing it.
The only use of such law as you suppose 10 be
contemplated, is to prevent an sudacious assump-
ton OF power such no former Attorney General
ever thought Of, and the inevitable delays which
must ensue IN the prosecution Of work demanded
by the people. w.