Washington, Patton, Schwarzkopf and ... Ashcroft?

• Author: Herz, Michael
• Position: Use of title "General" for Attorney-General and Solicitor-General

1. INTRODUCTION--GENERALS, GENERALS EVERYWHERE

   War may be too important to be left to the generals, but law, apparently, is not.

   If you attend a Supreme Court argument in a case of sufficient significance to be argued by the Solicitor General ("SG") himself, you will hear something like this:

   QUESTION: That's just part of it. It also, it also imputes nonhouseholds as households. I mean, it does a lot of things. MR. DELLINGER: It imputes only to known addresses. Thank you. QUESTION: Thank you, Mr. Dellinger. General Olson, we'll hear from you. ORAL ARGUMENT OF THEODORE B. OLSON, SOLICITOR GENERAL, DEPARTMENT OF JUSTICE, ON BEHALF OF THE FEDERAL APPELLEES GENERAL OLSON: Mr. Chief Justice and may it please the Court.... (1) Ah yes, "General" Olson. A military man.

   If you cross the street to attend, say, a congressional hearing on security issues at which Attorney General ("AG") John Ashcroft is testifying, you may hear something like this:

   SEN. BYRD: The committee will resume its hearings.... General Ashcroft, we welcome you to the Senate Appropriations Committee as we conduct our hearings on homeland security.... General Ashcroft, you're a key player in implementing America's homeland security strategy. And then, perhaps you head down Constitution Avenue to attend a Department of Justice press conference. There, Ashcroft introduces Representative Tom Delay, who says:

   Thank you, general.... This solution is a very important step in that direction. We will strengthen the law so that it can pass constitutional review. We greatly appreciate General Ashcroft for joining with us to develop this effective solution.... We will be working with the Judiciary Committee and other leaders on this issue.... So I thank you, general. (3) And so your day would go. As long as you were around the Department of Justice, you would have the sense that the military had taken over. Neither attorneys nor solicitors are in charge. Generals are.

   The tendency to call the AG and the SG "General" is not new (though I will suggest that it is more comfortable after September 11), nor is it pervasive. But it is common--particularly, it seems, among government officials. (4) As far as I know, it is not officially endorsed by DO J; the Department's own publications and website do not use that formulation. Reportedly, Janet Reno disliked being called "General" and "abandoned" the title. (5) When John Ashcroft became AG, he told reporters lie did not care if he was called "John, General, Mr. Ashcroft, or 'Hey, you.'" (6) "You can call me anything, just don't call me late for dinner." (7)

   In this article, I argue that the practice of calling the AG and the SG "General" should be abandoned. This usage is flatly incorrect by the standards of history, grammar, lexicology, and protocol. Of course, those standards are mutable; if everyone called John Ashcroft the same thing they call Norman Schwarzkopf or George Patton, then at some point doing so would be correct by historical, grammatical, lexical, and protocolian (?) standards. But I will make a normative argument against this usage as well. Law, also, is too important to be left to the generals.

2. THE ATTORNEY GENERAL IS A KIND OF ATTORNEY, NOT A KIND OF GENERAL

   1. GRAMMAR

      Notwithstanding the popularity of "come here, gorgeous," it is grammatically incorrect to call someone by an adjective. But that is what the "general" in "Attorney General" is. That is why the plural is "Attorneys General." Indeed, despite its flavor of annoying pedantry, the careful use of "Attorneys General" and "Solicitors General" is quite universal. In contrast, the plural of "Brigadier General" is not "Brigadiers General"; nor do we refer to "Chiefs Justice." The noun gets the "s." And it is the noun that denotes the rifle, as in "President Bush" and "Senator Clinton."

      Indeed, for the pedantic, all this is confirmed by Fowler. (8) Under the heading "plural anomalies," subheading "plurals of compound words," Fowler explains that compound words "ordinarily form their plurals logically, by attaching the -s to the noun element in them." (9) Accordingly, [t]he officials called General in civil life, e.g. Attorney G., Solicitor G., Governor G., Postmaster G., Paymaster G., being special kinds of attorney, solicitor, etc., should be Attorneys General and so on." (10)

      Opinions would vary as to what "special kind of attorney" John Ashcroft (or, say, Ramsey Clark) is, but for present purposes, the answer is that he is the "general" kind. Because "general" is not a noun, it cannot be his title. (11)

   2. HISTORY

      Grammar alone, however, is a weak reed. The English language, and common speech, are full of grammatical quirks and exceptions. Perhaps history explains or justifies what seems an incorrect usage. In fact, the history of the AG and SG only confirms that it is indeed incorrect. As a historical matter, "general" refers not to rank or command but to the breadth of attorneyship; that is, general as opposed to specific.

      1. English Roots

         The first known use of the term "attorney general" occurred in 1398 in a certificate from the Duke of Norfolk's four attorneys general. (12) These were not government officers, but simply agents of an absent principal The "general" indicated that these agents could act for the principal on any matter. One much-cited account, after describing the early history of the use of attorneys of any sort, explains:

         So far we have only considered the case of an attorney appointed ad hoc, i.e. to conduct a particular suit in the absence of his principal. To enlarge the scope of the write of dedimus potestatem so as to allow a man to appoint an attorney to act for him in any suit in which he might be involved at any future time was but a short step. Such a writ, however, was at first only granted as a special favour or under exceptional circumstances.... [Over time] it became usual, especially in the case of great landowners, to appoint attorneys to attend to all suits which might arise during a specified period during the life of the appointor, or in a particular county or court. Such an agent was known at first as a general attorney, later as an attorney general. (13) Thus, an "attorney general" was someone who held what today we would call, not coincidentally, a "general power of attorney."

         The creation in England of the governmental post of Attorney General apparently came later. In the 13th and 14th centuries, there existed a fluctuating number of "King's Attorneys" or "Attornati Regis." (14) Various counsel, of various titles, represented the king. It seems a matter of debate among legal historians whether these attorneys functioned as "general attorneys," at least some of the time, (15) or whether they were by definition limited to a particular court or substantive area. (16) That dispute does not really matter for these purposes. Only in 1472 is there a single "Attorney General," one William Husse, and thereafter the post is held by a single person. (Note that there was still no statutory basis for the office; the King simply named Husse as his Attorney General.) Thus, the English history is that the "Attorney General" was singled out from among many of the king's counsel. As attorney for the king, writes Holdsworth, "[h]e could be a more general attorney than those of other men." (17) The "general" indicates nothing other than a general capacity to act for the king. (18)

         As for the Solicitor General, that post came into existence somewhat later, but was well established by the early 16th century. (19) The solicitor served as a general assistant to the attorney in the handling of the King's legal business." (20) Again, there is no indication that the "general" in this title meant anything different from the "general" in the title of his boss.

      2. American Attorneys General

         By the time of the American colonial period, then, the English Attorney General and Solicitor General were established in something like their modern versions, as the chief litigators for, and legal advisors to, the crown. (21) The colonies established, usually by executive action but sometimes legislatively, "attorneys general" with similar functions. (22) Apparently "the colonies made little attempt to define or enumerate the duties of Attorney General in America. He possessed the common law powers of the English Attorney General except where they were changed by the constitution or statute. 'He was in a sense a delegate of the Attorney General of England.'" (23)

         In creating the federal AG and SG, in 1789 (24) and 1870, (25) respectively, Congress borrowed the rifles from the English. (26) No evidence exists that Congress was doing anything other than following the English and colonial practice, nor to suggest that the titles had anything other than the historical connotations--that these were attorneys whose representative capacity was not limited to particular matters or courts but rather extended to any matter in which the United States was interested. (27)

      3. Early American Practice

         The background of the American office suggests that calling the AG "General" is historically inappropriate for one other reason. A general is, by definition, in charge of somebody. He or she is the top of the heap. In the early years of the republic, the Attorney General was surely the loneliest and most powerless general there ever was. (28) He was in charge of no one and nothing. He had no staff. He bought his own supplies. He provided his own office. Not only was there no Department of Justice, the AG had no responsibility for or supervision over the district attorneys. (29) Indeed, the Attorney General did not even have a clerk until 1818, writing out his opinions and correspondence in his own hand. (30) As late as 1853, "the Attorney General of the United States, Caleb Cushing, performed all his duties with the help of two clerks and a messenger." (31) In short...