On Sept. 26 there will have been a U.S. Attorney for the district currently designated as the Southern District of New York for 225 years. For it was on Sept. 25, 1789 that President George Washington sent to the Senate the nominations of a judge, a marshal and an attorney for what was then referred to as the districts of New York and New Jersey. Washington’s letter read:

“United States, September 25th 1789, Gentlemen of the Senate, I nominate James Duane, Judge, William S. Smith, Marshall, Richard Harrison, Attorney, for the District of New York [;] David Brearly, Judge, Thomas Lowry, Marshall, Richard Stockton, Attorney, for the District of New Jersey

And Likewise nominate ‘Thomas Jefferson for Secretary of State, Edmund Randolph for Attorney General, Samuel Osgood for Post Master General.’

G Washington”1

At the first session of the court for the District of New York on Nov. 3, 1789, Richard Harrison was admitted as the first U.S. Attorney.

New York was then the capital of the new nation, perhaps for no greater reason than it had been the last capital of the predecessor government, the Confederation and Perpetual Union Between the States of 1781-88. The British held New York for the bulk of the Revolutionary War—from September 1776 until November 1783.

I have found no documents which expressly explain why Washington nominated the judges, marshals and attorneys for the states of New York and New Jersey as promptly as he nominated the obviously far more important appointments of secretary of state, attorney general and postmaster general.

While I am not a historiographer, I view it as a reasonable inference that because New York was a principal port of the new nation (the others being Boston and Savannah) it would make easier collecting the principal revenue of the new nation, namely duties on imported goods coming through the port.

Washington undoubtedly knew that the predecessor legislature of the Confederation lacked any independent power to raise funds; it could only request funds from the states, which a single state could veto. Twice the Confederation attempted to amend the Articles to allow the Congress to raise funds. It required unanimity. First, in 1782, it was proposed to impose a tariff of 5 percent on imported goods. Twelve of the states agreed, but Rhode Island objected and the proposal failed.

In 1785, the Confederation sought to repay the loans it had incurred in fighting the Revolutionary War, particularly from France and Holland. It sought again to impose a 5 percent tariff on imported goods. Twelve of the states agreed; but this time New York objected and the measure failed.

Both Washington and Madison recognized that another approach was necessary. The new Constitution prohibited the states from issuing paper money or its equivalent as they had done before, but also from levying duties or tariffs on imports and exports. Some, including Washington,

“*** hoped that the states might in time have ‘no occasion for Taxes and consequently may abandon all the subjects of taxation to the Union,’ which would then become the principal political force in people’s lives, especially in the lives of the propertied and wealthy creditor class. The national government would levy customs duties and excise taxes to supply the revenue to make regular interest payments on the refunded debt. Indeed, more than 40 percent of this federal revenue in the 1790s went to pay interest on the funded debt.”2

Washington, ever the pragmatist, had little choice but to appoint officials for New York and New Jersey first, since both states border the New York harbor, thereby safeguarding the sole source of revenue for the new government.

There have been over 70 U.S. Attorneys for the Southern District. Their subsequent public services have included a secretary of war during World War II, a mayor of the City of New York, a chairperson of the Securities and Exchange Commission, and the current director of the Federal Bureau of Investigation.

But former assistants of the office have done at least as well, some might even opine better, in their post-office efforts: Two U.S. Supreme Court justices, two directors of the FBI, a New York State governor and two-time presidential candidate, a New York County District Attorney, the current Secretary of Homeland Security, and numerous judges on the Second Circuit, the Southern District and the New York Supreme Court.

Ad multos annos!

Otto G. Obermaier, was the 69th U.S. Attorney for the Southern District of New York serving from 1989 to 1993. Most recently he has practiced with Martin & Obermaier.

Endnotes:

1. I am indebted to my former colleague Eileen Koyl who presented me with an actual copy of the document, the original of which is in the Library of Congress.

2. G.S. Wood, The Empire of Liberty (2009) p. 97.