The Economic Policies of Alexander Hamilton. Hamilton Alexander
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to the same thing, and therefore (as has been already observed) if the constitution prohibits the delegation of legislative power to the Union, it equally prohibits the delegation of executive power—and the Confederacy must then be at an end; for without legislative or executive power, it becomes a nullity.
Unfortunately for the objection, if it proves any thing it proves too much. It proves that the powers of the Union in their present form are an usurpation on the constitution of this State. This will appear not only from the reasoning adduced, but from this further consideration,—that the United States are already possessed of legislative as well as executive authority. The objects of executive power are of three kinds: to make treaties with foreign nations, to make war and peace, to execute and interpret the laws. This description of the executive power will enable us the more readily to distinguish the legislative; which in general may be defined the power of prescribing rules for the community.
The United States are authorized to require from the several States as much money as they judge necessary for the general purposes of the Union, and to limit the time within which it is to be raised; to call for such a number of troops as they deem requisite for the common defence in time of war; to establish rules in all cases of capture by sea or land; to regulate the alloy and value of coin, the standard of weights and measures, and to make all laws for the government of the army and navy of the Union. All these are powers of the legislative kind, and are declared by the Confederation to be binding upon all the States.
The first is nothing less than a power of taxing the States in gross, though not in detail; and the last is the power of disposing of the liberty and lives of the citizens of this State, when in arms for the common defence. That the powers enumerated are all, or most of them, of a legislative nature, will not be denied by the law members on the other side of the question. If the constitution forbids the grant of legislative power to the Union, all those authorities are illegal and unconstitutional, and ought to be resumed.
If, on the contrary, those authorities were properly granted, then it follows that the constitution does not forbid the grant of legislative power, and the objection falls to the ground; for there is nothing in the constitution permitting the grant of one kind of legislative authority, and forbidding that of an other. The degree or nature of the powers of legislation which it might be proper to confer upon the Federal Government, would in this case be a mere question of prudence and expediency, to be determined by general considerations of utility and safety.
The principle of the objection under consideration would not only subvert the foundation of the Union as now established, would not only render it impossible that any Federal Government could exist, but would defeat some of the provisions of the constitution itself. This last idea deserves particular attention.
The nineteenth clause makes it the duty of the governor “to correspond with the Continental Congress.” The twentieth provides “that the judges and chancellor shall hold no other office than delegate to the General Congress”; and the thirtieth directs “that delegates to represent this State in the General Congress of the United States of America shall be annually appointed.”
Now, sir, I ask, if Congress were to have neither executive nor legislative authority, to what purpose were they to exist? To what purpose were delegates to be annually appointed to that body? To what purpose were these delegates to represent this State? Or how could they be said to represent it at all?
Is not the plain import of this part of the constitution, that they were to represent this State in the General Assembly of the United States, for the purpose of managing the common concerns of the Union? And does not this necessarily imply that they were to be clothed with such powers as should be found essential to that object? Does it not amount to a constitutional warrant to the Legislature to confer those powers, of whatever kind they might be?
To answer these questions in the negative would be to charge the constitution with the absurdity of proposing to itself and end, and yet prohibiting the means of accomplishing that end.
The words “to represent this State” are of great latitude, and are of themselves sufficient to convey any power necessary to the conduct and direction of its affairs in connection with the other parts of the Confederacy.
In the interpretation of laws it is admitted to be a good rule to resort to the co-existing circumstances, and collect from thence the intention of the framers of the law. Let us apply this rule to the present case.
In the commencement of the Revolution delegates were sent to meet in Congress with large discretionary powers. In short, generally speaking, with full power “to take care of the republic.” In the whole of this transaction the idea of an Union of the colonies was carefully held up. It pervaded all our public acts.
In the Declaration of Independence we find it continued and confirmed. That declaration, after setting forth its motives and causes, proceeds thus: “We, therefore, the representatives of the United States of America in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do in the name and by the authority of the good people of these colonies, solemnly publish and declare that these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things that independent states may of right do.”
Hence we see that the Union and Independence of these States are blended and incorporated in one and the same act; which, taken together, clearly imports that the United States had in their origin full power to do all acts and things which independent states may of right do; or, in other words, full power of sovereignty.
Accordingly, we find that upon the authority of that act, only approved by the several States, they did levy war, contract alliances, and exercise other high powers of sovereignty, even to the appointment of a dictator, prior to the present Confederation.
In this situation, and with this plenitude of power, our constitution knows and acknowledges the United States in Congress assembled, and provides for the annual appointment of delegates to represent this State in that body, which, in substance, amounts to a constitutional recognition of the Union, with complete sovereignty.
A government may exist without any formal organization or precise definition of its powers. However improper it might have been that the Federal Government should have continued to exist with such absolute and undefined authority, this does not militate against the position that it did possess such authority. It only proves the propriety of a more regular formation to ascertain its limits. This was the object of the present Confederation, which is, in fact, an abridgment of the original sovereignty of the Union.
It may be said (for it has been said upon other occasions) that, though the constitution did consider the United States in the light I have described, and left the Legislature at liberty in the first instance to have organized the Federal Government in such a manner as they thought proper, yet that liberty ceased with the establishment of the present Confederacy. The discretion of the Legislature was then determined.
This, upon the face of it, is a subtilty, uncountenanced by a single principle of government, or a single expression of the constitution. It is saying that a general authority given to the Legislature for the permanent preservation and good of the community, has been exhausted and spent by the exercise of a part of that authority. The position is the more destitute of color, because the Confederation, by the express terms of the compact, preserves and continues this power. The last clause of it authorizes Congress to propose, and the States to agree to, such alterations as might be afterward found necessary or expedient.
We see, therefore, that the constitution knows and acknowledges the United States in Congress; that it provides for the annual appointment of delegates to represent this State in that body without prescribing the objects or limits of that representation; that at the time our constitution was framed, the Union existed with full sovereignty; and that therefore the idea of sovereignty in the Union is not incompatible with it. We see, further, that