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Subject Area: Political Theory
Subject Area: War and Peace
Topic: The American Revolution and Constitution

hamilton to mchenry - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 7 [1774]

Edition used:

The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 7.

Part of: The Works of Alexander Hamilton, (Federal Edition), 12 vols.

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hamilton to mchenry

  • New York,

March 21, 1800.

Dear Sir:

Though, from repeated reflection and action upon the subject, my opinion was well made up when I received your letter of the 19th, yet I thought it proper once more to review the matter before I complied with your request. The principle of the doctrine advanced by the accountant will go much farther than the position which he now avows, namely, “that no authority short of Congress can make allowances to an officer beyond the emoluments fixed to his office by law.” It will go the length of denying to the Executive, in all its branches, any discretion not confirmed by some special law, to call forth and compensate any services, not merely of officers, but of any other persons, which are not indicated and provided for by particular statutes.

It will interdict the employment and compensation of a citizen as a writer, or even as an express, no less than that of an officer, for either purpose. The foundation of the doctrine must be, that there is no power in the Executive to subject the public to expense in any case not specially provided for by law. What substantial difference can there be between employing a private citizen for some contingent service, and paying him for it, and employing an officer for something not within the sphere of his official duty, and compensating him for it? I discover none in the theory; for as to such extra service he is a private citizen, and I know no law that declares a distinction.

It is certain that in the course of the discharge of its trust, there will occur numerous instances in which the public service must stagnate, or the Executive must employ and compensate agents not contemplated by special laws.

It follows, in my opinion, that he must have an inherent right to do it, under these restrictions; that it ought to be relative to some object confided to his agency by the Constitution, or by the laws; and that no money ought actually to be paid, for which there is not an appropriation by statute, either with particular reference to the purpose, or under the general denomination of contingencies. This is, in my opinion, a right necessarily implied; nor do I see why the Executive may not claim the exercise of implied powers, as well as the legislative. In a word, there is no public function which does not include the exercise of implied as well as express authority.

This reasoning, as far as I know, is consonant with the practice of every government, and with that of ours, as well under the Confederation, as under the present Constitution. If my memory deceive me not, there was an act of Congress prohibiting the union of two offices in the same person, with distinct compensations. Yet this did not hinder the allowance of special compensations to officers for special and extra service. Still less did it hinder the indemnification for extra expenses of an officer in peculiar situations. Such compensations and indemnifications were, I believe, made by the executive boards, under the former government. Indeed, I am unusually mistaken, if the uniform practice of the Treasury and War Departments under this government, does not recognize the rule for which I contend, and reject that which is advanced by the accountant. This practice, too, has been right. A different one will be found in experience a fatal clog on the wheels of public business. The administration at large is interested in discountenancing it, and that spirit of cavil in the accountant, on which it is founded, and which my observations in my present station have convinced me is ruinous to the military department of the government. There was not an appropriation law passed, while I was at the head of the Treasury, which did not sanction my principle. There was always, I believe, a sum for the contingencies of the War Department.

The power to incur charges which involve expense, not falling under any specific head, presupposes the right to employ agents and engage services not particularly contemplated by law. I always viewed such appropriations as a virtual sanction of the right, including in them a warranty, if necessary, to exercise the power. Such too was the practical construction.

Nobody knows better the truth in this respect than Mr. Wolcott. Nobody ought more decidedly to frown upon the dangerous metaphysics of Mr. Simmons. The recognition of this doctrine will be a fatal precedent in the administration. It will be a palsy, destructive of all energy in the government. Considering the dispositions which prevail among certain men, in a certain body, there ought to be more than a common anxiety not to establish such a fetter upon Executive operations.

Yours, etc.