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Opinion on the Edward Stevens Claim, 12 June 1804

Opinion on the Edward Stevens Claim

 Doctr. Stevens’s case.

I consider the annual act which appropriates a given sum to the expences of intercourse with foreign nations, as a sufficient authority to the President (the constitutional organ of foreign intercourse) to expend that sum for the purposes of foreign intercourse, at his discretion. if he abuses that discretion he is responsible for it in a constitutional way. the legal restrictions on this power are 1. that for outfit or compensation ‘for personal services & expences’ to certain specified grades (which are those chiefly used by the US.) not more than specified sums shall be allowed. 2. that the whole expences shall not exceed the sum appropriated. 3. that an account of the expenditure shall be rendered. the sum on which these restrictions leave the Executive discretion to act is too small to excite any rational jealousy, or to render it useful to restrict it further by rigorous and unusual constructions. the Executive therefore is believed to be free to make allowance to the specified grades for any object other than those ‘for personal services and expences,’ and to employ any unspecified grade on such salary and allowance as he sees proper within the limits of the whole appropriation. nor is any law, or principle of law, known which would forbid the superadding these agencies, & allowances for them, to the ordinary functions of a Consul, minister &c. I consider the appointment therefore & allowance to Dr. Stevens to have been within the limits of the Executive authority.

Whenever it is agreed between two parties that certain services shall be performed by the one for the other, and no special compensation is stipulated the law understands their intention to be that a quantum meruit, or a reasonable compensation shall be allowed. such an agreement will therefore be implied by law in the case of Doctr. Stevens. what is that reasonable compensation? not his expences however extravagant, even if a contract could be proved that his expences were to be paid. the law understands such a promise to mean his reasonable expenses only. his functions were, in a certain degree, of a diplomatic nature, yet the government to which he was sent, not being independant, he could not be invested formally with any diplomatic grade. if we place him therefore on the level of the lowest grade, that of a Chargé des affaires, and make that the measure of his quantum meruit, we shall do him full justice. no circumstance justifies his assuming a higher place.

But shall he be considered as a permanent agent, & therefore entitled to an outfit, or only as an occasional one to be allowed the reasonable expences of his passage, which is the rule with occasional diplomatic agents? his not having been nominated to the Senate clearly excludes him from the character of a permanent agent, if it does not even take from him all legal character, after their first session following his appointment. to draw such a line as will admit the Executive, during the recess of Senate, to dispatch a special agent for a particular purpose, without awaiting their approbation, and yet not enable him, by continuing that agent permanently, to evade the constitutional approbation of the Senate, & to keep up a separate corps of diplomacy of his own, will require great consideration, caution and candour, & until it be done, great attention in the Executive to keep within unquestionable bounds. I do not think however that the right of Dr. Stevens ought to depend on that definition. an indivudual, who is employed by the highest public functionary to do a public service within the line of his authority, is bound to consider him as acting with legal powers, and as alone charged with all the responsibility, if he transcends his powers. Dr. Stevens had a right to expect the Executive would nominate him to the Senate for approbation, if that nomination was necessary. he proceeds in his duty, & supposes the Executive does the same, and ought not to lose his right by the failure of the latter. the public in such case should pay the individual, and take on themselves the measures necessary to prevent similar infractions of the constitution in future.

Questions meriting great consideration, have been made, as to the sufficiency of the evidence offered in support of Doctr. Stevens’s claims. the settling by a quantum meruit, the claim ‘for personal services & expences’ gets rid of this question so far. for that the services were performed is notorious; & that it was by public authority, results from the whole correspondence. it has been suspected indeed that there was no contract, nor any other reward intended than certain privileges of commerce. but this is not the way the US. pay their servants. monopolising compensations are among the most fatal abuses which some governments practise from false economy. they are not the usage here, and if suggested, the onus probandi is thrown on the party suggesting it. the law will presume a fair and usual contract; but not one which is improper & unusual.

The claim for travelling expences, within the limits of his agency, would require proof of positive contract. when an agent, for a limited district, is sent into another, his expences have been usually allowed. but never those of travelling to and from places within his regular care, & for the regular purposes of that care. his general allowance compensates his general superintendance over the whole, & to pay him for visiting each particular part also, would be a double paiment. this would lead to endless claims & difficulties.

The hire of dispatch vessels has been attended with such singular circumstances, as excite almost invincible suspicion that they came on the ordinary business of the mercantile house. this means of conveying information is so expensive, that it is not allowed, even to diplomatic agencies, but on great & important emergencies, on each of which, as it arises, the department of state will decide, at the risk of the agent venturing on it. whether these dispatch vessels came purely on public account, and whether the matter they were charged with justified the expence, should be strictly enquired into.

Enquiry will doubtless also be made 1. whether mr Yard’s connection in interest with Dr. Stevens will admit him to be a witness in this case; & 2. if it does, his testimony will be estimated, as every other man’s is which is given under circumstances of bias, of which he is not sensible himself.

In deciding on these questions of evidence, we are bound to proceed by the same laws of evidence which govern the courts of justice. these are the laws of the land, admitting no exceptions of persons, public or private. the laws in refusing an appeal to the ordinary tribunals, in questions between an individual & the public, & leaving the decision with the Executive department, has changed the judge in this instance, but not the law. it has given judiciary but not legislative powers: and the laws of the land are the inheritance & the right of every man, before whatever tribunal he is brought. for instance, that a contract need not be on record; that it may be by parol as well as in writing, that a written contract may be controuled by verbal agreement or other extrinsic matter, are principles of law to which Dr. Stevens is entitled on the one hand, as it is our duty, on the other, to bring his claims to the test of law, to sift the facts on which they rest by the common rules of evidence, and to decide according to these on every item of his accounts; not weakly to relieve an individual by giving him the public money, nor arbitrarily to withold by public power what is justly due to an individual. this investigation can not be better trusted than to the justice & judgment of the Comptroller, to whom therefore it is referred.

Th: Jefferson
June 12. 04.

MS (DLC); entirely in TJ’s hand. Recorded in SJL as “Stevens’s case.”

judgment of the comptroller: on 21 July, Gabriel Duvall informed the secretary of state that although a decision had not been made on “every item” of Stevens’s account, a warrant not exceeding $12,000 could be issued to him without further delay. At the same time, the comptroller noted that only the State Department could decide on the four charges, totaling $4,850, for hiring vessels to carry dispatches. Duvall also requested Madison’s opinion on the $1,600 charge for a secretary. If the State Department found in favor of these charges, Duvall noted, “I shall have no objection against augmenting the sum for which the warrant shall issue accordingly.” On 17 Sep., Madison requested that Gallatin have a warrant issued in favor of Stevens for $12,000, and on 20 Oct. he requested that the balance found due to Stevens, after deducting the expenses for the relief of seamen, be paid. Both payments were to be charged to the appropriation for foreign intercourse. On 25 Oct., Madison wrote to Duvall that the “importance of the dispatches” justified the hiring of two vessels for $2,000 each. He advised Duvall to get more information from Stevens on the two lesser charges for vessels, of $400 and $450, for which vouchers were lacking. Madison deemed Stevens’s charge for a secretary “reasonable & admissible” (Madison, Papers, Sec. of State Ser. description begins William T. Hutchinson, Robert A. Rutland, J. C. A. Stagg, and others, eds., The Papers of James Madison, Chicago and Charlottesville, 1962- , 39 vols.; Sec. of State Ser., 1986- , 11 vols.; Pres. Ser., 1984- , 8 vols.; Ret. Ser., 2009- , 3 vols. description ends , 7:499-500; 8:62, 195, 211). In February 1826, Congress received a petition from Stevens requesting the balance due him for his services from March 1799 to September 1801. He noted that of his claim for $27,325 in expenses, $9,400 remained unpaid “until some additional vouchers could be procured.” Because of the unsettled state of public affairs in Saint-Domingue, however, he had been unable to obtain the documentation. The committee rejected Stevens’s claim, noting that in 1804 “the whole sum appears to have been paid to him which the proper officers then thought the vouchers produced would justify.” The receipts in existence then were subsequently destroyed by fire, and Stevens had submitted no additional vouchers. The committee concluded: “If the vouchers produced in 1804 would not authorize the payment of the sum now claimed, your committee are at a loss to know how they would be justified in recommending a law to be passed which would direct such payment without any voucher whatever” (JS description begins Journal of the Senate of the United States, Washington, D.C., 1820-21, 5 vols. description ends , 15:127, 205; Compilation of Reports of Committee on Foreign Relations, United States Senate, 1789-1901, 8 vols. [Washington, D.C., 1901], 3:627-8).

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