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Enclosure: Memorandum on the Edward Stevens Claim, 19 February 1804

Enclosure: Memorandum on the Edward Stevens Claim

Doctr. Stevens having been sent by the preceding administration in 1798. to St. Domingo, with the Commission of Consul general, and also with authorities as an agent additional to his1 Consular powers, under a stipulation that his expences should be born; an account of these is now exhibited to the Secretary of state and the questions arise Whether the paiment can be authorised by the Executive, and out of what fund?

The constitution has made the Executive the organ for managing our intercourse with foreign nations. it authorises him to appoint & recieve Ambassadors, other public ministers, & consuls. the term minister being applicable2 to other agents as well as diplomatic, the constant practice of the government, considered as a commentary, establishes this broad meaning; and the public interest approves it; because it would be extravagant to employ a diplomatic minister for a business which a mere rider could execute. the Executive being thus charged with the foreign intercourse, no law has undertaken to prescribe3 it’s specific duties. the permanent act of 1801. however, 1. when he uses the agency of a Min. plenipo. or Chargé, restricts him in the sums to be allowed for outfit, salary, return & a secretary, and 2. when any law has appropriated a sum for the contingent expences of foreign intercourse, leaves to his discretion to dispense with the exhibition of the vouchers of it’s expenditure in the public offices.4 under these two standing provisions, there is annually a sum appropriated ‘for the expences of intercourse with foreign nations.’ the purposes of the appropriation being expressed by the law in terms as general as the duties are by the constitution, the application of the money is left as much to the discretion of the Executive, as the performance of the duties: saving always the provisions of 1801.

It is true that this appropriation is usually made on an estimate, given by the Secretary of state to the Secretary of the Treasury, & by him reported to Congress. but Congress, aware that too minute a specification has it’s evils as well as a too general one, does not make the estimate a part of their law, but gives a sum in gross, trusting the Executive discretion for that year, & that sum only. so, in other departments, as of War for instance the estimate of the Secretary specifies all the items of cloathing, subsistence, pay &c of the army: and Congress throw this into such masses as they think best, to wit, a sum in gross for cloathing, another for subsistence, a third for pay &c. binding up the executive discretion only by the sum, & the object generalised to a certain degree.5 the minute details of the estimate are thus dispensed with in point of obligation, & the discretion of the officer is enlarged to the limits of the classification6 which Congress thinks it best for the public interest to make. in the case before us then, the sum appropriated may be applied to any agency with a foreign nation, which the constitution has made a part of the duty of the President,7 as the organ of foreign intercourse.

The sum appropriated is generally the exact amount of the estimate, but not always. in the present instance, the estimate, being for 1803. was only of 62,550. D. (including two outfits) and the appropriation was of 75,562 D. leaving a difference of 13,012 D.

If indeed there be not enough of this appropriation left to pay Dr. Stevens’s just demands, they cannot be paid until Congress shall make some appropriation applicable to them. I say his just demands: because by the undertaking of the then administration to pay his expences, justice as well as law will understand his reasonable expences. these must be tried by8 the scale which law & usage have established, whereon the Minister, Chargé, & Secretary are given as fixed terms of comparison. the undefined agency of Dr. Stevens must be placed opposite to that term of the scale, with which it may fairly be thought to correspond: and if he has gone beyond that, his expences should be reduced to it. I think them beyond it, and suppose that Dr. Stevens, viewing himself as a merchant, as well as a public agent, found it answer his purposes as a merchant to apply a part of his reciepts in that character in addition9 to what he might reasonably expect from the public, not then meaning to charge10 to his public character the extraordinary stile of expence which he believed at the time he could afford out of his mercantile profits.

Th: Jefferson
Feb. 19. 1804

PrC (DLC); endorsed by TJ. Dft (same). Recorded in SJL as a communication to the Treasury Department with notation “Dr. Stevens’s case.”

sent by the preceding administration: for Edward Stevens’s appointment in February 1799 and his mission, see Vol. 31:44, 45n, 49; Vol. 33:447; Vol. 37:234-5, 455-7.

permanent act of 1801: that is, the act of 10 May 1800, entitled “An Act to ascertain the compensation of public Ministers.” The act gave the president the power to settle accounts under any law making an appropriation for contingent expenses of relations with foreign nations and to make “a certificate of the amount of such expenditures as he may think it advisable not to specify, and every such certificate shall be deemed a sufficient voucher for the sum or sums therein expressed to have been expended” (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855-56, 8 vols. description ends , 2:78-9). For the sum appropriated in 1803 for the expense of foreign relations, see same, 2:214. The estimate of $62,550 for the “diplomatic department” is included in Letter from the Secretary of the Treasury, Accompanying a Report and Estimates of Appropriation for the Service of the Year 1803 (Washington, D.C., 1802), 5.

1Preceding three words interlined in place of “not at all comprehended within the.”

2Word interlined in Dft in place of “constantly applied.”

3Word interlined in place of “delineate” in Dft.

4See TJ to Gallatin, 21 Feb., for his instructions to cancel the remainder of the paragraph and substitute text in its place. In Dft, TJ canceled the remainder of the paragraph and wrote in the margin: “To give the Executive the means of fulfilling the constitutional duty of maintaining the foreign intercourse, and even to supply the authority, if the constitutional words be deemed inexplicit or defective, a sum is annually appropriated for the expences of intercourse with foreign nations. if we consider this as giving the means only of fulfilling the constitutional duty, then it leaves their application to his discretion as generally, as the constitution had left the duties. if, as in some other cases, the appropriation intends, by the same words, both to legalize the object, and give the means, then the latitude of the expression here used, gives the same latitude of execution, saving always the general regulations of the act of 1801.”

5In Dft, TJ first wrote “by the sum and the purpose,” which he changed to “by the sum and the general object” before altering the passage to read as above.

6Dft: “general classification.”

7In Dft, TJ first wrote “which the constitution has made a part of his duty” before altering the passage to read “which either the constitution or the appropriation has made a part of the duty of the President.”

8Preceding two words interlined in Dft in place of “reduced to.”

9Preceding two words interlined.

10In Dft, TJ first wrote “not then thinking of charging the whole” before altering the text to read as above.

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