Observations on Dr. Stevens’s claim.

Dr. Stevens was appointed, in Feby.-March 1799, Consul General at the Island of St. Domingo. This appointment was made by the President of the United States with the advice & consent of the Senate in the manner pointed out by the Constitution. The fees & emoluments of Consuls being fixed by law, no other permanent compensation, whether as salary or as reimbursement of his household expences, can in that capacity be allowed to him. It appears, however, that Dr. Stephens was, at the same time, invested with extraordinary powers, not of a Consular nature, by the President of the United States; and it is alledged by him that he was promised, on that account, a reimbursement of all his expences during his mission. He, therefore, states an account under the following heads vizt.

1.	Expences of himself & family including house rent at the rate of 1,200 dolls. a year	16,600
2.	His Secretary’s salary at the rate of 800 Dollars a year	1,600
3.	Sea stores for passage to & from St Domingo and passage money on his return	1,200
4.	Travelling expences on public business whilst at St. Domingo	950
5.	Hire of Vessels for carrying dispatches to the U. States & to Jamaica	4,850
6.	Advanced to Capt. S. Minor to prosecute a suit for the recovery of his Vessel & Cargo libelled at Cape Nicholas la Mole	2,050
7.	Advanced to American Seamen in distress.	75
		27,325

The 6th. & 7th items properly belong to Dr. Stevens’s account under his Consular functions. So much as he may have expended, & can support by regular vouchers, for the relief of Seamen in distress and for the law expences of prosecuting suits in case of Captures, must be allowed, both of those expences being authorized by law. The greater part of the advance to Capt. Minor appears, however, to be of a different nature, for which Dr. Stevens’s recourse is against Capt. Minor whose vessel was insured as appears by the account. Claims of that kind by Consuls have been and must be considered as Commercial transactions. If they were not repelled the Treasury would be unable to meet the demands on that account. See Consul Fenwick’s account. There may be cases in which the Legislature will think proper to interfere: this may be one of them.

How far the legality of the 5th. item may depend on the decision which shall be made on the three first, need not at present be discussed; but, supposing no difficulty to exist for that reason, the claim should be strictly investigated, because it appears extraordinary that no demand should have been made at the time from the Department of State. No receipts appear for the hire of Vessels to carry dispatches to Jamaica; but the 4000 dollars paid for the charter of the two vessels which brought the Dispatches to the United States were paid by Dr. Stephens in two drafts of 2000 dollars each on the house of Crammond and on Mr. Yard respectively. Why were not the drafts on the Dept. of State? And Why, having been drawn in that manner, was not the reimbursement asked by Mr. Yard who was Dr. Stephens’s Agent and on whom one of the bills was drawn. To elucidate that point, it will be necessary 1st. to examine the Correspondence of Dr. Stevens, and ascertain whether when he sent the said dispatches, he advised the Secretary of State that such expence had been incurred on public account—2dly To ascertain by enquiry at the Custom house of Philadelphia whether the two vessels came & returned altogether in ballast. If they did not the transaction was at least partly commercial and the claim would thereby be invalidated in whole or in part. It must be remarked that the account has been passed by the Auditor without any enquiry whatever on that subject.

If the mission was legal, the 4th. item, provided it shall be supported by vouchers, is admissible even if there was no proof of a Contract to re-imburse the expences of Dr. Stephens, the travelling expences here stated not being personal, but on account of his mission.

The three first items, however, are those which have given rise to the present investigation and require particular consideration: and they seem to present three distinct questions, vizt.—1st. As to the legality of the Mission and the Authority of the Executive or of any Department to pay the amount of the claim—2dly. As to the evidence of the engagement on the part of Government to make the allowance claimed—3dy As to the proof given that the expences were incurred.

I. The object of Dr. Stephens’s mission, not connected with his proper Consular functions, is fully explained by the Correspondence in the Office of the Secretary of State. He was to co-operate with Gen. Maitland in forming an Agreement or Convention between the United States and Great Britain on the one part and the actual Government of St. Domingo on the other part; and afterwards to remain in the Island as a Ministerial Agent for the purpose of carrying the Convention into effect and of preserving the good understanding between the United States & the Government of St. Domingo. A Convention was accordingly made to which the United States became a party, though it was not signed on their part; and Dr. Stevens remained in the Island in the Character of an Agent under the Convention to both the British & the American Government. His correspondence with the Secretary of State is principally of a diplomatic nature, and relates in a great degree to the prospect of the permanent independence of San Domingo. His duties are by the former Secretary of State in his Certificate of 23. March 1802, designed as essentially ministerial; Mr. Yard in his deposition speaks of the mission as being of a diplomatic nature; and the same idea has been preserved by the Auditor & the Comptroller. It is, indeed, on that ground alone that the claim is supported.

It is provided by the Constitution that the President shall have power, by & with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and (that) he shall nominate and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law.”

The only distinction, as it relates to the power of appointment vested in the President, between foreign agents, and other officers of the United States, is that the first description is recognized by the Constitution, without limitation either as to number or grade, and that they may be appointed in the manner directed by the Constitution, without the necessity of a previous law establishing the office: and such as are appointed pursuant to the constitution may be paid so far as the appropriations will reach, and under such limitations in respect to Salary as may be fixed by law.

The sums generally appropriated for the expences of foreign intercourse may, under the limitations which may exist in respect to Salary, be legally applied to the payment of the compensations allowed to the officers appointed pursuant to the constitution, and of the expences incident to the missions of such officers; in which last class the expenses incurred for the transmission of their dispatches, and of treaties or ratifications constitutionally made, appear to be properly included.

But neither the making of a Treaty under the sole authority of the President, by whatever name and in whatever manner such treaty may be disguised, nor the appointment of foreign ministers, by the sole authority of the President, to the exclusion of the constitutional approbation of the Senate, whether such ministers shall be disguised under another ostensible appointment or shall act as ministeral agents, are recognized or authorized by the Constitution

Should such species of treaties or ministerial agents be introduced, the Constitution might in every instance be evaded, and a system of double or secret diplomacy, similar to that of France, be established on the ruins of the Constitutional mode of carrying the intercouse with foreign nations.

The laws making the ordinary appropriations for foreign intercourse, do not authorize any payment for purposes not previously, or by some particular mode of expression in such laws themselves, authorized either by the law or by the constitution. Thus an appropriation for the pay, subsistence, &ca. or even contingencies of the army does not authorize the raising of an additonal regiment not otherwise authorized, nor the payment of the expences incident to such unauthorized Regiment. Thus the law to regulate and fix the compensation of clerks, having fixed the whole amount of the compensation to Clerks in the Office of the Accountant of the Navy at 6,900 dollars, and the general appropriation law of 1801. having only appropriated a larger sum for that object, without specially authorizing a greater compensation, the additional compensations allowed in that office by reason of the appropriation were, as a matter of course, disallowed by the Accounting Officers; and a special provision was made to authorize that additonal compensation, by the 3d. Section of the Act of February 23d. 1802. Which last instance is most in point to prove that an appropriation law, unless especially worded for that purpose, does not authorize an expence otherwise unauthorized. But, at all events, such law never can cover the expences incident to an appointment made contrary to the Constitution, and not any where authorized by law.

The act providing the means of intercourse between the United States and foreign nations, of 19th. March 1798, which was in force when Doctor Stevens was appointed, appropriates the annual sum of 40,000 dollars for the support of such persons as the President shall commission to serve the United States in foreign Parts, and for the expence incident to the business in which they may be employed: Which confines the expenditure to persons appointed pursuant to the Constitution, and to the expence incident to the legal mission of Such Persons.

But the same act, which remained in force ’til 10th. May 1800, had, as well as every preceding act on the same subject, provided that a certificate of the President, or of the Secretary of State, of the amount only of such expenditures (for the purposes of treaty or intercourse with foreign nations generally) as he (the President) might think it adviseable not to specify, should be deemed a sufficient voucher for the sums therein expressed to have been expended.

Under that provision, a power was vested in the President which may be considered as having, by implication, authorized him to expend the monies appropriated for foreign intercourse as he thought fit, and free of any of the restrictions in respect to appointments which had been imposed by the Constitution. It certainly released him from any legal restrictions otherwise imposed in respect to the expenditure of money. The operation of that provision being, since 10th. May 1800, limited to the expenditure of monies appropriated for contingent expences (eo nomine) of foreign intercourse, and no such appropriation having, unless in relation to the intercourse with the Barbary Powers, been made since that time, the additional and extraordinary authority thus vested in the President can no longer be exercised: and no inference can be drawn from that provision in favor of Doctor Stevens; except that, as it was in force at the time of his appointment, the expences incident thereto might, at that time, have been legally defrayed by virtue of such provision. Yet it is remarkable that it is stated in Mr. Yard’s affidavit, the only evidence adduced in support of the supposed engagement of Government to defray Doctor Stevens’s expences, that Mr. Pickering, then Secretary of State, considered the annual appropriation of 20,000 dollars for the contingent expences of Government, as the proper fund to defray the expences of that mission. If, as may be thence inferred, he did not think even the provision by which a certificate of the President was sufficient to cover any expence in relation to intercourse or treaty with foreign nations, as sufficient to cover the expence of that mission, it must have been because he did not consider the intercourse with the Government de facto of St. Domingo as an intercourse with foreign nations. And from that view of the subject, another strong argument can be drawn against the application of monies, especially appropriated to the intercourse with foreign nations, to an expenditure incident to the intercourse with the Officer of a foreign nation, not authorized by his Government to carry such intercourse.

In that view of the subject every objection to the construction given by the Secretary of the Treasury to the laws respecting foreign intercourse, is avoided; as, on that ground alone, the claim of Doctor Stevens may be disallowed without any possible inference in relation to other cases which have arisen in the course of the regular intercourse with the recognized Government of foreign nations.

The President of the United States may, therefore, have inferred from the provisions of the act suspending the commercial intercourse with France, that he was authorized to take, alone, the necessary steps for opening the intercourse with St. Domingo, at the same time that he did not believe that the monies appropriated for intercourse with foreign nations could, even under the provision which authorized him not to specify the expences, be applied to the expence incident to that particular measure. But it may at the same time have been supposed that the expence either would afterwards be provided by the Legislature which had authorized the measure, or might be defrayed from the fund which, without limitation or restriction, is left at the disposal of the President for discharging any unforeseen contingent expences of the Government.

The conclusions drawn from the preceding observations are,—that if Doctor Stevens’s ministerial agency was with a foreign nation, his appointment as ministerial agent ought to have been by the President and Senate, and that such appointment not having been made he cannot be recognized nor his expences allowed as such:—that if his agency was only with the Officer of a foreign nation, not authorized by that nation to carry such intercourse, nor recognized as independent by the United States, the expences of his mission cannot legally be paid out of the monies appropriated for intercourse with foreign nations:—that if his mission and agency were authorized by the Act suspending the commercial intercourse with France, the President may direct a reasonable allowance to be paid from the fund appropriated for the contingent expences of Government:—but that the most regular and eligible mode will be an application to the Legislature. Was there any evidence on the records of the Department of State, of an agreement to make a compensation, the application might come from the Executive; but under the particular circumstances of the claim, it seems that the claimant himself ought to apply.

Before the second question, that of the existence of an agreement, be examined, a few remarks on the cases which have been stated as affected by a decision on this claim, may not be improper; repeating, however, that, at all events, it is not necessary to ground that decision on reasons which can affect any other case resulting from the regular and authorized intercourse with a foreign nation. Lieut: Leonard’s mission, to carry the Stock to France, could not, it is believed, have been regularly paid from the expences incident to foreign intercourse, unless it had been considered as necessarily resulting from the Treaty with France. It never was intended to charge it to that fund; and it has been paid by virtue of a specific appropriation made by Congress for the printing and transmission of the Stock.

Mr. Dawson was neither a public minister, nor a ministerial agent: he accordingly preserved his Seat in the House; and it was not therefore necessary to have a Senatorial confirmation of his appointment. In fact he had neither appointment nor agency: he was the bearer of a Treaty. The expences incident to the transportation of the dispatches of duly appointed ministers, or of treaties made in pursuance of the Constitution, being for objects authorized by the Constitution, may be paid from monies appropriated for intercourse with foreign nations.

Mr. Davis was appointed Consul in lieu of Mr. Eaton. That was a case of vacancy which the Executive had a right to fill, as well as any other vacancy whatever; and in conformity with the rules uniformly adopted at the Treasury in relation to the salaries of all other Officers, his salary will be allowed from the time when he entered in the functions of the Office, to the time when a successor shall enter in the same functions; provided, however, that two salaries shall not be paid at the same time for the same Office; that is to say, Mr. Eaton’s salary must cease when that of Mr. Davis commences, and that of Mr. Russel must commence when that of Mr. Davis shall cease. This is an invariable rule in relation to all officers whose Salary is fixed by law, as that of the Consuls on the Barbary Coast.

The cases of the outfit to Barbary Consuls, and of expences beyond an outfit, and outfits to foreign ministers, appear doubtful. Their legality depends on the question whether the laws fixing the compensations of Ministers and Consuls forbid any allowance beyond that compensation. A decision on that question, cannot affect Dr. Stevens’s case, unless the allowance to be made to him be given as an addition to his consular emoluments, and for his consular Services; which is not the case; as his claim is not, like the extra allowances to foreign minister’s and Barbary Consuls, for services rendered in his official capacity, but as private ministerial agent, in which character he cannot be legally recognized. As to the question itself, it is believed that for the same reason which rendered an application to the Legislature for a salary to the Barbary Consuls, proper, it would be more eligible to obtain a legislative sanction for outfit and any extra allowance of a permanent nature; though perhaps these may be covered by the general appropriations for intercourse with Barbary Powers. The expences of foreign ministers going from one mission to another, may certainly be allowed; provided that they shall not exceed the amount of an outfit. Thus Mr. Munroe might legally be allowed, exclusively of salary, 27,000. dollars; vzt. 9000 dollars for outfit from America to France, 9000 drs for ditto from France to England, and 9000 dollars for ditto from England to Spain. The practice has, it is believed, been to allow half an outfit, after the first, for each succeeding mission; and any thing less than the whole amount which may legally be allowed, may certainly be allowed for expences. This is a question of propriety in the exercise of a legal discretion, and not of the discretion itself. Mr. Morris’s appointment was certainly of a diplomatic nature, and could not, in the view which has been taken of the subject, be legally made, or the expence defrayed, except under the provision authorizing the President to give a certificate of the expence without specifying it. The early time at which this appointment was made, may also be plead in justification: it was perhaps owing to it that the law was expressed in the manner in which it was, and that the extraordinary power of granting a certificate without specifying the expence, was given. And it may be generally observed that, since every former instance, even if irregular, is brought as a precedent to justify similar or greater irregularities, great care should be taken not to introduce precedents and admit claims which it is believed would hereafter be plead in justification of every possible deviation from the ordinary course. At least it is not perceived what limits could ever be supposed to exist in respect to Executive discretion in the expenditure of monies for foreign intercourse, if Dr. Stevens’s claim shall be admitted without legislative sanction.

IId. Of an engagement on the part of Government, to allow for Dr. Stevens’s expences, no trace is to be found in the records of the Department of State. The then Secretary of State declares that the fact is not in his recollection. No application for payment was made by Doctr. Stevens, or by Mr. Yard, until after it was known that a change of administration would take place; vzt. in February 1801. Not even an allusion to such an agreement appears in the lengthy correspondence of Doctor Stevens with the Secretary of State. The vessel which carried him to St. Domingo was permitted to take a cargo there, in direct contravention of the existing law; and that privilege was, at the time, considered as an equivalent for some species of Services. The advantages, in a commercial view, which Doctr. Stevens derived or might have derived from his situation were peculiar; he arrived in the Island several months before its ports were opened to the United States:—he knew with certainty, what to others both in the Island and in the United States was unknown, that the intercourse would again and soon be restored: and during that period he might purchase, and it is said did purchase produce at it’s then depreciated value to a large amount. It has also been asserted, and even on the floor of Congress, that he derived advantages, which no other person did enjoy, from the circumstance of two ports only in the Island being opened to the American Merchants. How far any actual profits were derived from those circumstances is neither known nor important: they are mentioned only to shew that the prospect was such as might easily induce a Man of talents & enterprize, & connected with Merchants of extensive credit, to accept, without any other emoluments but those attached to his Consular appointment, the mission to St. Domingo.

The only evidence of an Agreement is found in Mr. Yard’s deposition. No doubt is entertained of the truth of what he attests: it is not necessary to object to the loose manner in which such important stipulation was expressed: nor will even the presumed commercial connection between the Witness & the Claimant be adverted to, although the fact, whether Mr. Yard had or has any interest in the allowance for the household expences of Dr. Stevens, ought certainly to be investigated before his evidence should be finally admitted. But strong doubts are entertained whether such evidence could, under the circumstances of the case, be admitted by a Court of law: and, at all events, it is considered as inadmissible in the Treasury settlement of a claim against the United States.

When an Individual is employed by another for a compensation fixed by a written Contract subscribed by both parties, it is not believed that evidence of a verbal Agreement can be admitted to show that the compensation differed from that stipulated by such Contract. In this instance, the compensation allowed to a Consul is fixed by law: & the Appointment of a person to that Office, together with the acceptance of the Office by such person, constitute that positive Contract, which, it is not believed, can be affected by the evidence of the Agent of the Consul of a verbal Agreement between the Officer of Government & that Agent.

Whatever may be the force of that objection, no claim has ever been admitted by the Executive Officers of Government on such evidence. They act only on positive Contracts acknowledged by the Officers who had the authority to contract: it is not necessary to point out the dangers which would result from a different principle. The Office of the Secretary of State is an Office of record of the highest grade: the papers on record in his Office are the only evidence that can be admitted of a Contract made by that Department. It is not believed that the evidence of even a Secretary no longer in Office could be admitted to substantiate a Contract of which no evidence appeared on record, or different from what did appear. But when the fact is not even in the recollection of such Secretary, if the evidence of a third person was thought sufficient, the most unjust claims might be supported, and a system of favouritism & partiality introduced, without any person being held responsible for the result. In this very instance to whom will the responsibility of the Contract attach? Not to the former Secretary of State who says that the fact is not in his recollection. Not to the present Secretary who did not certainly make the Contract. Not to the Accounting Officers of the Treasury, one of whom at least has been careful not to lay the burthen on himself. The Legislature may as a Court of Equity take the extraordinary services, and the evidence of a Contract which is offered in consideration, and direct, if they shall think proper, a settlement of the account, in the same manner as they have done in cases where the evidence of a Contract, though much stronger than in this, instance, was not presumed sufficient to be within the competence of the Accounting Officers. (Amongst innumerable instances See Comfort Sands claim, General Hazen half pay, Charles Pettits’s Commission as Quart. Mast. Gen. &ca)

III. On the question of vouchers, it is intended only to point out an irregularity which might have been avoided. The Auditor states that the vouchers generally required have not been offered & applies to the Secretary of State for his authority in order to admit the Depositions of Dr. Stephens & of his Secretary in lieu of such vouchers. The Secretary of State gives his opinion that the said depositions seem sufficient to establish the reality of the expenditures. And the Auditor in his official Statement of the Account (No 15,066) expressly states that “the within credits are admitted on the Depositions of Dr. Stephens & of his Secy & Cash Keeper Mr. D’Arcy, pursuant to a letter herewith from the Secretary of State dated the 9th. instt.”

By the law of 10th. May 1800, the power of giving a Certificate which shall be deemed a sufficient voucher for the sums therein expressed to have been expended is confined to the case of monies expended under appropriations for contingent expences of foreign intercourse: and that provision precludes the power of substituting any Certificate or Opinion in lieu of the usual vouchers.

In this instance, if the ministerial Agency of Dr. Stevens rested on a constitutional Appointment, if the Appropriation for intercourse with foreign Nations was deemed applicable to the expences of intercourse with any but the authorized Government of a foreign nation, and if the evidence of a contract was positive, the proper and regular course would be to give a quantum meruit or reasonable allowance in lieu of expences not susceptible of proofs; and the Secretary of State would undoubtedly be the proper officer to fix that allowance. Supposing, therefore, no other objection to exist, it is only the mode adopted by the Auditor in order to obtain the decision of the Secretary of State which is liable to objection.

Upon the whole, the Secretary of the Treasury respectfully submits as his opinion;1

That the President may, if he is satisfied that a promise to pay the expences was made, direct a proper allowance, to be fixed by him, to be made to Doctor Stevens, out of the fund appropriated to defray the contingent expences of Government; on the ground, not only that that fund is, without limitation or restriction, left at his discretion, but that the mission of that gentleman being the result of a measure authorized by a special Act of Congress, (though no expence was contemplated or authorized by that Act) the contingent fund may, with propriety, be applied to defray expences incurred by reason of said mission.

That Doctor Stevens not having been in his ministerial agency, appointed, in the mode pointed out by the constitution, minister to transact business with a foreign nation, and his mission not being in fact to the Government of a foreign nation, but to a subordinate Officer not authorized to carry such intercourse, no part of the expences incident to that mission, and including the five first items of his account, can be paid from the monies appropriated for the intercourse with foreign nations.

That the evidence of a contract on the part of Government to defray his expences, is not such as can or ought to be admitted by the Executive Officers of Government.

And that no claim of so doubtful a nature, in every respect, and in all it’s details, having ever been allowed, to the knowledge of the Secretary, without legislative sanction, the claimant ought to apply to Congress, as the proper Tribunal to grant relief in extraordinary cases.—

Respectfully submitted