HAMILTON, Alexander. Autograph letter signed ("A.Hamilton") to Col. William Heth of Virginia, Philadelphia, 23 June 1791. 4½ pages, 4to, integral address leaf, pages 1/2 and 3/4 neatly separated, minor fold tear at margins, but generally in very good condition. [With:] Autograph free frank ("Free AHamilton") on integral address leaf addressed by Hamilton to "William Heth Esquire Bermuda Hundred," bearing small FREE stamp and circular postmark, with Hamilton's seal in red wax, docketed by recipient, small blank portion defective.
HAMILTON ON THE DOCTRINE OF IMPLIED POWERS UNDER THE CONSTITUTION AND THE NATURE OF EXECUTIVE POWER: "WHAT LAW COULD EVER DEFINE...THE DUTY OF A SECRETARY OF THE TREASURY?"
A very remarkable letter with important Constitutional implications, in which Hamilton emphatically asserts the doctrine of implied powers under the new Constitution, specifically in reference to Heth's duties and his own as Secretary of the Treasury. Hamilton's careful reflections were, without doubt, elicited and sharpened by the prolonged debate in Congress and among Washington's closest advisors over the granting of a charter of incorporation to Hamilton's Bank of America, which hinged on a similar question. In December and January 1791, Hamilton had submitted a trio of financial proposals for the new nation: his Report on the Public Credit (dealing with issues of taxation), the so-called 'Second Report" on the Bank of America, and his report on the establishment of the Mint. The keystone was the national bank, to be chartered by Congress and capitalized at $10 million "more than four times as much as that of the three existing banks combined and far more than the amount of all the gold and silver in the country" (F. McDonald, Alexander Hamilton, p.193).
At first, Hamilton's bank bill had seemed likely to coast through Congress. While the Senate passed the Bill in January, in the House, it became mired in politics. To prevent northern interests from keeping the seat of government in Philadelphia, Virginia's representatives held the Bank bill hostage. In the House debate, James Madison staunchly opposed the Bank charter on the grounds that the Constitution had not explicitly granted Congress the power to charter such an institution. "Where in the Constitution, he asked, could the power to establish a bank be found? Not from the power to levy taxes, not from the general welfare clause and not from the power to borrow money. That left only the 'implied powers' clause at the end of Article I, Section 8, authorizing Congress to 'make all laws which shall be necessary and proper for the carrying into Execution' the enumerated powers" (McDonald, pp.200-201). Ironically, in the Federalist, No. 44, Madison had championed the doctrine of implied powers, and evoked it again in the drafting of the 10th Amendment. When the House passed the bill, it was held up by President Washington, who consulted two fellow Virginians, Attorney General Randolph and Secretary of State Jefferson, both of whom, not surprisingly, concurred with Madison that the act was unconstitutional. Washington initially intended to veto the act but wanted the capital located on the Potomac. Realizing he would have to accept the Bank to attain this end, Washington requested from Hamilton a further report on the Constitutionality of the Bank, which Hamilton submitted on 21 February. In that famous response, Hamilton first voiced arguments which strikingly parallel his interpretations in this letter
Heth had inquired about the legal extent of his responsibilities as collector. Hamilton's answer goes far beyond that limited scope and speaks of his own responsibility to the President: "My opinion is that there is and necessarily must be a great number of undefined particulars incident to the general duty of every officer, for the requiring of which no special warrant is to be found in any law. The test of what he is obliged to do and what he is not must be the relation which the thing required bears to his prescribed or specified duties. Thus it is the duty (for instance) of every officer employed in every department of the Revenue to give the Treasury all the information which arises out of his official documents and opportunities." Then he asks, rhetorically, "What law could ever define the details of the duty of a Secretary of the Treasury? It is evident there must be an endless variety of things unexpressed which are incident to the nature of his station & which he is bound in duty to perform at the call of the President. One of these duties is to give information concerning all matters which are ascertainable by the course of proceedings at the custom houses relating to the Trade of the Country - And how is he to perform this duty if he has not a right to call on each officer of the customs for the materials in his possession? If it be said the law should thus require this, I answer that the detail would be endless. And surely it would not answer in respect to any officer that to say he must do whatever he is required to do. And if all that he is to do is to be defined the Statutes of the United States must be more voluminous than those of any Country in the world."
"There is a large chapter of duties between Executive Officers which grow out of the Nature of Executive power and which the natural relations of things can alone determine. Consult, my Dear Sir, the Code of any nation whatever and examine the practice in relation to the point in question and you will find there is no law providing for a thousandth part of the duties which each officer performs in the great political machine & which unless performed would arrest its motions." He considers and rejects the idea of extra compensation, insists that his request is "fairly within the line of office," and has "required nothing which has not been of real importance." He reassures Heth that he is "not dissatisfied with your appeal nor unfriendly to its object, though my judgment in the particular case is decidedly against yours."
Hamilton's arguments on the bank's constitutionality had a powerful effect on Washington and in the end, Washington signed the Bank bill. For a resume of Hamilton's report, see McDonald, pp.205-209.