From Josiah Ogden Hoffman1
[Albany, September 11, 1799]
I mentioned to you some time since, a request by the G.——for my opinion, on the subject of appointment of Auctioneers under the Laws of Congress in this State. On my return to this City, I sent him my sentiments, a Copy of which, I now inclose you.2 He yesterday returned them to me—and at the same time observed, that I had no[t] fairly met the question—that Auctioneers perhaps were to be considered merely, as municipal Officers—(his own phrasing) not in any way to be appointed by Congress—that in Counties, where we had not appointed, they had—and if we could agree in judgment, he was determined to lay the business before the Legislature, that an Act might be passed, making it penal for any one to sell at Auction, without being first appointed by this State. I only replied, I meant to be explicit, for my Mind was very decided on this question. He wished me however to reconsider my opinion—adding, he had no doubt, of the power of the U.S. to appoint Collectors of Excise Taxes &c but, repeating the Idea, Auctioneers were our municipal Officers, and meaning, as I judged, the duty could be collected from them, without any of the Checks contained in the Act of Congress. I foresee a difference in opinion between the G. & myself and it is not improbable, my opinion may be submitted to the Legislature. The subject therefore perhaps ought to be gone into, more thoroughly, than my Information will enable me to do—indeed, I barely know how to express myself in stronger Terms, than I have already done. Will you have the goodness to devote some Consideration to the business, and to favour me with your ideas, in the shape of an Argument, or otherwise, as you shall find convenient. It is of importance, that no delay take place in my receiving your Communications. I would wish to meet fairly the question, although I must confess myself wholly at a Loss for the Necessity of making any question about it.
I can only offer my federal Motives, as the best Apology for giving you this trouble; and the same Motive I flatter myself will ensure your aid & assistance.
I need not remind you, that this Letter is perfectly confidential—it might perhaps do me an injury to have it known, that its Contents were imparted even to you. Had you not therefore for fear of accident better destroy it, after perusal.
Pray let me hear from you by the first Mail, as I may be called upon for an Answer to his last Request, and permit me to assure of the great Esteem and Attachment of, D Sir
Your respectful hl ser
Jos: Ogden Hoffman
ALS, Hamilton Papers, Library of Congress.
1. Hoffman, a Federalist lawyer who served as attorney general of the State of New York from 1798 to 1801, had represented New York City in the state legislature from 1791 to 1795 and again from 1796 to 1797. For his speculations in land and his arrest for debt, see Stephen Van Rensselaer to H, November 6, 1797.
2. On August 15, 1799, Hoffman wrote to John Jay: “… the question submitted to my consideration in your Letter of the 2d July last ‘Whether the Constitution and Constitutional Laws of the United States, Authorize their Government to appoint or license Auctioneers in this State’ have been considered, and in my Judgment, the Constitution of the United States Authorizes Congress to pass Laws for the Appointment and regulation of Auctioneers in this State so far only, as may be necessary to secure the regular payment of such duties, as may be imposed by their Government, on Sales of property at Auction.
“By the 8th. Section of the 1st. Article of the Constitution of the United States, it is declared That ‘Congress shall have Power to lay and collect Taxes, Duties, Imposts and excises.’ This power is general, and certainly includes the right of laying a Tax or duty on property sold at Auction. If so, it results, that Congress are competent to prescribe the means, calculated to ensure the punctual payment of such Tax. A contrary principle might render the Constitution in this respect, a Nullity. If Auctioneers were exclusively subject to the State Governments, it might be in their power by a non-Appointment, wholly to defeat the Laws of the Union, or by regulations concerning the Appointment and Conduct of Auctioneers, the payment of the Tax might be liable to evasion. The Government of the United States and the State Government possess a concurrent Jurisdiction, in this Article of Taxation, as they do in ma[n]y other Instances and each Government may prescribe its own regulations, for the Collection of whatever Tax may be thus imposed, and their Agents in this respect although the same persons, will be equally amenable, as well to the Laws of the Union, as of the several States, and liable to Punishment for a violation of such Laws in the Courts of the United States, or in the State Courts as the case may require.
“In the Act of Congress for laying duties on property sold at Auction passed 9th. June 1794, great Attention is manifested to obviate any Inconvenience to the State Governments on this subject. The 2nd. Section Enacts, That no person shall exercise the Trade or business of an Auctioneer, unless such person shall have a license or special Authority, continuing in force, pursuant to some law of a State, or issued pursuant to the directions of said Act. The 3rd. Section declares that it shall be the duty of Auctioneers holding a License under any State, to give notice thereof to the Office of Inspection and to give a bond in the Penalty of $1500 to the United States, that he will truly Account for and pay the duties imposed by the said Act in the manner therein directed. If any sale is made without such bond he forfeits $400. No license or permit in such case is granted.
“By the 4th. Section the Supervisors are authorised to grant Licenses from year to year, but no such License is to be granted to carry on the said Trade or business, in any City, Town or County of any State in respect to which provision hath been made by any Law of such State, for the allowing and regulating of the said Trade and business therein.
“… Upon the whole I am of opinion that the Law of Congress is a Constitutional Law.…” (Copy, Hamilton Papers, Library of Congress.)
For “An Act laying duties on property sold at Auction,” see 1 Stat. description begins The Public Statutes at Large of the United States of America, I (Boston, 1845); II (Boston, 1850). description ends 397–400.