To James McHenry
N. York March 21. 1800
Though from repeated reflection and action upon the subject my opinion was well made up when I received your letter of the 19th.1 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 theory, for as to such extra service he is a private citizen and I know of no law that declares a distinction.
It is certain that in the course of the discharge of its trusts, 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 deceives me not, there was an act of Congress prohibiting the union of two Offices in the same person with distinct compensations.2 Yet this did not hinder the allowance of special compensations to officers for special and extra service. Still less did it hinder the indemnifications for extra expences of an Officer in peculiar situations. Such compensations and indemnifications were, I believe, made by the Executive boards3 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 regret that which is advanced by the accountant.
This practice too has been right. A different one will be found in experience—a fatal Clog in 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 expence 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 his doctrine will be a fatal precedent in the administration. It will be a palsy destructive of all energy in the Govt. Considering the disposition which prevails 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.4
Copy, in the handwriting of Ethan Brown, Hamilton Papers, Library of Congress.
2. On September 19, 1776, the Continental Congress resolved: “That, to prevent, for the future, warrants being drawn by any general in the continental army, in favor of any officer, for more than one commission, the order of Congress be published, that no officer in the continental army is allowed to hold more than one commission, or to receive pay but in one capacity” (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , V, 784–85).
3. See, for example, the report of the Board of War on the claim of Baron von Steuben (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , XVI, 215–16).
4. With minor word variations, McHenry used H’s letter printed above as the basis for seven of the last nine paragraphs of his letter to Adams, April 2, 1800 (copy, in McHenry’s handwriting, James McHenry Papers, Library of Congress; ADfS, James McHenry Papers, Library of Congress; ADfS, letterpress copy, James McHenry Papers, Library of Congress).