To Albert Gallatin
Department of State: Washington,
28 Novr. 1801.
I have had the honor to receive your letter of the 20th. current respecting Mr. Fenwick’s accounts.
As none of his claims were incurred subsequently to the 1st. of September 1800, it follows that if the authority given to the Secretary of State, under the President’s direction, to admit such claims should be considered to be more limited after that day, the principles of liquidating his account cannot be affected by it. Whether the existing appropriations are sufficient to discharge his demands, it is the province of the Treasury Department to ascertain. If they should prove deficient, it is presumed that Congress may enlarge them, as a consequence of the same system in which they originated.
Examining therefore his claims, under the head of advances for defending captured property, by the law of the 18th. of April 1798, we find that Consuls are to be reimbursed such reasonable advances of money as had been made and during that year should be made, in making and supporting the claims of American citizens to captured property before the tribunals of foreign countries: and an appropriation is provided for the purpose. The law of the 13th. May 1800 authorizes the President to cause to be expended a sum not exceeding $5000 for the reimbursement of such reasonable advances of money as had theretofore been or before the 1st. septr. following should be made by Consuls of the United States in making and supporting the claims of American citizens for captured property before the tribunals of foreign countries. The question therefore simply is, as to the meaning of the terms making and supporting claims &c. If the law of the 3rd. March 1797,1 which provides for similar claims depending before the British prize-courts be recurred to for a parallel, “the costs thereof” are to be paid, “so far as the agents of the United States have become sureties for the same”: and an appropriation is made for defraying “that expense during the year 1797.” The Agents of the U. S. were sureties for the Proctors’ bills, which, it is believed, include not only their own fees, but their advances to the officers of the Courts, Counsel, for printing, in short every thing necessary to the claim or defence. Whatever therefore is considered as a reasonable expense incurred in making and supporting claims to American captured property ought to be reimbursed to Mr. Fenwick, such as for copies of official documents, postage, translations, fees to the officers of the Courts, counsel and notaries, printing, and perhaps some other charges which are not foreseen, but which entered bonâ fide into the cost of making and supporting the claim. Maintenance of the Captain and crew after the capture is excluded from this head of expense, and when reimburseable at all must fall within the provision for distressed seamen. It is noticed that in one of Mr. Fenwick’s vouchers a claim is made for ten months board of the Captain: this does not appear to be covered by any law or appropriation. He also claims the amount of a deposit, which, it seems, was required to be made at the Council of cassation and which followed the event of the appeal. Wherever therefore it appears that the appeal was lost, he is entitled to charge the amount of this deposit.
He may be allowed a commission of five per cent on all his expenditures which are admitted, but the other claim of two per cent on the amount of sales is inadmissible and has never been allowed; the former rate being considered a sufficient compensation to the Consuls of the United States. With sentiments of sincerest respect I am &c. &c