20 April 1804, Department of State. “Dr. S. went in the year 1799 to St. Domingo under a Consular appointment, with additional services to be performed of a nature not consular.1 For expences incurred in this Mission he claims reimbursement, on the ground of a promise from the Executive, on the faith of which he undertook the Mission.

1. Is the claim legally allowable, particularly from the fund appropriated to intercourse with foreign nations?

2. Is the Contract sufficiently proved?

3. Are the expenditures supported by admissible vouchers?2

“The first question is to be decided by the scope of the laws relating generally to intercourse with foreign nations, and of those relating particularly to intercourse with St. Domingo.

“The general Act of Congress in force at the time when Dr. S. was sent to St. Domingo, pursuing the tenor of a temporary Act which had been regularly continued from the original act passed in the year 1794.3 appropriated 40,000 dollars annually for the support of such persons as the President should commission to serve in foreign parts, and for the expence incident to the business in which they might be employed, under certain limits to the compensations allowable for all personal services and expences to Ministers Plenipotentiary Charges and the Secretaries of the former; with a further appropriation of 25,650 dollrs.4 for defraying the expences of intercourse between the U. S. and foreign nations, during the current year viz. 1798.

“The act further provided that all monies issued for the purposes of intercourse or Treaty with foreign nations, in pursuance of any law, should be annually accounted for, as the President might decide, either specifically, or by a certificate of the amount of the expenditures from the President, or with his sanction from the Secretary of State.

“The authority here given to the President, for maintaining intercourse with foreign nations, is conveyed to him by the appropriation of money to the support of such persons as he should commission to serve the U. S. in foreign parts, and to the expence incident to the business committed to them. The guards provided against the abuse of that authority consist 1. of the limitation of the entire sum. 2. of that of compensations to particular classes of Agents in foreign parts, to whose support the greater part of the fund was likely to be applied, and whose measure of compensation would be a guide to that of others. The rule laid down for the settlement of the accounts, in permitting a Certificate of the President, or the Secretary of State, to take the place of a specification & verification of the expenditures was an enlargement of the Executive Authority.

“If the appropriation had been made without limiting the compensations to Plenipotentiaries, Chargés and their Secretaries, the President might have regulated them as he pleased within the general limit of the appropriation. He might consequently allow to other Agents serving in foreign parts, whatever compensations he pleased within that general limit: unless it could be said that the authority to give compensations in those particular cases was derived not from the appropriation itself, but from the proviso limiting their amount; which proviso gave the authority by implication. This however can not be said 1. because the fairer implication from the proviso is that without it, Ministers Plenipotentiary, Chargés & Secretaries might have received higher than the limited compensation. 2. because the President could not under a construction deriving the power merely from the proviso, have even employed any other grades of Legation; which could the less have been meant by Congress, as they are not only expressly authorized by the Constitution, but one other grade, that of Resident, was at the time serving the U-States in foreign parts, and must have been known to be so by Congress.

“Nor can it be said that the appropriation is limited to Foreign Agences [sic] specified in the Constitution or authorized by law. For, under that construction, besides that it would be an assumed, not a necessary one, and that the Agency of Dr. S. in his consular capacity was known both to the Constitution & to the law, the President, whilst more money was often appropriated to foreign intercourse than was likely to be required for such Agences, would have been without authority to apply any part of it for any other purpose of foreign intercourse, and would consequently be under restrictions equally inconsistent with the public interest & the presumable intention of the Legislature. It must have been known also, that the provisions in the same words in former Acts, had in practice, been otherwise understood.

“It appears to have been decided by practice also, that the term ‘Commissioned’ by the President was not to be taken in the technical sense of an appointment with the sanction of the Senate and under the seal of the U. S.; but as applicable to persons authorized by the President in any form to serve the U. States in foreign parts.5

“In the case of Dr. S. then, a promise of reimbursement, whether made to him in his consular capacity or as charged with services not consular, must be considered as within the Executive Authority. If made to him as Consul it was made to a functionary recognized in the Constitution & the law, as well as appointed and Commissioned in due form; and litterally within the Act making appropriation for the support of such persons as the President should commission to serve the U. S. in foreign parts. The allowance of certain fees to Consuls would not, invalidate such a promise; inasmuch as the law has not declared that no other allowance should be made, as is declared in the case of Plenipos, Chargés &c., and inasmuch as it has been the practice to re-imburse even to these functionaries, expences incurred in official, tho’ in other than ordinary services. If the promise was made to him as charged with services not Consular, it was within the legal authority of the Executive, unless the extra services were in their nature incompatible with the Consular offices, of which there is no appearance. It has been familiar in practice, to employ regular functionaries abroad, particularly Consuls, in extra services with reasonable allowances for them. Mr. Erving & Mr. Skipwith are examples.

“The authority of the President, in applying the money appropriated to foreign intercourse, without regard to the question whether the Agent receiving it, was or was not at the time in an office with legal emoluments annexed to it may be further illustrated by the construction given by constant practice to the appropriations to intercourse with the Barbary powers, these being made in like terms with the appropriations to intercourse with foreign nations. By an Act of Congress in 1794. one million of dollars,6 well known to be meant for a Treaty with Algiers, was appropriated without any particular reference to Barbary, ‘to defray expences to be incurred in relation to the intercourse between the U. States and foreign nations,’ and under that general appropriation was applied as far as was requisite to Barbary purposes. Consuls to the Barbary powers, altho’ expressly allowed salaries by law, have all of them recd. or been promised, reimbursements of expence, in some cases for extraordinary services in their Consular character in others for Agencies superadded to that character. The negociation of peace with Tripoli, committed first to Mr. Cathcart, and latterly to Mr. Lear are explicit examples. The Usage of national intercourse on the Coast of Barbary may indeed be different from usage elsewhere, and may be thought to countenance a greater latitude in the means of intercourse there than elsewhere. Still however it is certain that in carrying on intercourse among other foreign nations, agences and services are in use, of kinds sufficiently various & informal to sanction any latitude that has been taken by the Executive in the intercourse with them.

“In examining the state of the law at the time Dr. S. went to St. Domingo, it may be proper to observe that in an Act of Congs. passed Mar. 2. 1799.7 there is, besides an appropriation of 21,000 dollrs. in addition to the 40,000 drs. a further appropriation of 78,700. for the ‘contingent expences of intercourse with foreign nations.’ This is perhaps the only instance in which the term ‘contingent’ appears in this branch of appropriations. If it was meant to give an increased latitude to the authority of the President, as the term might be construed, it wd decide at once the question whether it was applicable to the case of Dr. S. and consequently whether a promise such as he alledges was legally valid. But it is more probable that nothing more was meant by ‘contingent expences,’ than what is called in the Appropriation Act of June 1. 1796,8 extraordinary expences, by which appears to have been meant merely expences additional to those previously contemplated; and as likely to arise within the year for purposes not different in kind from those annually provided for, but greater in number or extent. In one sense all the common expences of foreign intercourse are ‘contingent’ since they depend on the will of the President & the course of events; and are consequently uncertain or contingent.

“Thus stood the law untill Mar. 10. 1800,9 when instead of a continuation of the last temporary act which included the annual appropriation for foreign intercourse, a permanent act was passed in a form somewhat different. It simply provided that the allowances to Plenipo’s & Chargés & the Secretaries of the former should not exceed a certain rate, and that money drawn under any law making appropriation for the ‘contingent expences of intercourse with foreign nations,’ might be accounted for either specifically or by a certificate &c. as the President might decide; leaving the appropriations for foreign intercourse to be made separately from time to time as they have since been made. And these appropriations, which have uniformly run in the phrase of ‘appropriations for the expence of intercourse between the U. States and foreign nations,’ with the permanent act, constitute & define the authority of the Executive in applying money for that purpose.

“Whatever expence then is fairly within the idea of intercourse with foreign nations, is legally allowable out of the appropriations; except so far as a limitation results from some general principle, or is specially provided by the permanent Act.

“Is it a general principle that an appropriation of money to a general purpose, is applicable only to particular cases designated by the Constitution or the law; and does not of itself legalize any other application. Such a construction is founded in no apparent necessity; and would narrow the authority of the Executive more than would consist with the public interest, with the probable intention of the Legislature, or with the uniform course of practice. It would in fact exclude from the support of intercourse with foreign nations, some of the modes & expences most convenient for the purpose, and which have been found so by the experience of the present & every preceding administration.

“Is it a general principle that where an allowance is expressly made by law, it is a bar to all extra allowance, on extra considerations to the same person; notwithstanding a general authority to the Executive to make allowances on such considerations? This construction also is apparently without necessity, as it would also be highly inconvenient, and contrary to the course of practice.

“Does the permanent act above cited impose any limitation on the power given by the Appriation. Acts, equivalent to such general principles?

“The permanent Act is entitled ‘An Act to ascertain the compensations to public Ministers.’ The Body of the Act however does not strictly correspond with this limited title. The first section provides, as already observed that no salary exceeding particular rates, should be allowed to particular grades of public Ministers & the Secretaries of one of those grades, as a compensation for all personal services & expences. As the Act gives no positive authority to the President to allow salaries at all, it implies that the authority is given elsewhere; and no where else is it given, unless it results from the general appropriation of money for foreign intercourse; and if it so results, the authority must extend to all other cases of foreign intercourse.

“Was it admitted that the limitation of the salaries, is, by implication, the source of the authority to allow salaries in the cases where they are limited, the construction would be subject to another implication, which can not be admitted, viz. that the fund could be applied in salaries to no other functionaries than to those whose salaries are expressly limited. Or were it even admitted, that other functionaries particularly recognized in the Constitution or the laws, might be allowed compensations, an implication would still remain equally inconsistent with the public service & the constant practice, as well as with the intention of the Legislature to be inferred from its knowledge of both; namely that no part of the fund would be applicable to any other purpose than to compensations for all personal services & expences; and consequently to none of those occasional agences or even incidental expences which are so often indispensable means of intercourse with foreign nations: For it is to be recollected that the permanent Act omits the provision contained in the preceding temporary acts for ‘the expence incident to the business in which persons serving in foreign parts might be employed,’ authorizing only, and that by a questionable implication, compensations ‘for personal services and expences,’ to officers named in the act itself, & at most to such as are designated in other acts, or in the Constitution.

“It is proper to remark that on the supposition that the foreign fund is applicable to such offices or Agencies only as are found in the Constitution or the law, no salaries could be allowed to the Secretaries of public Ministers these not being found in the Constitution, nor authorised by any law creating the Office: Or on the supposition that salaries might be allowed to Secretaries of Plenipos., as implied by the legal proviso, that Salaries to their Secretaries should not exceed a fixt rate, still no salary could be allowed to the Secretaries of any other public Ministers not even to the Secretaries of Charg[é]s d’Affaires. A construction leading to this consequence can not easily be admitted. It is certainly a much more rational construction that the law in limiting the salaries to Secretaries implies that the Salaries would be otherwise at the discretion of the Executive; & that the service & expence of a Secretary, tho’ not personal to the public Minister, being within the meaning of, as being incident to, ‘intercourse with foreign nations,’ every other expence & service incident to that intercourse are equally within the appropriations to it.

“The effect of the other & only other section in the permanent Act, on the authority of the Executive, depends on the question whether ‘the Contingent expences referred to’ as to be settled in the way prescribed, be included in the expences generally of foreign intercourse, or are not included & consequently to be provided for by a distinct appropriation.

“It is perhaps not very easy to say precisely what is to be understood by contingent expences of foreign intercourse as distinct from those which are not contingent. In one sense, as has been already observed, all the expences of foreign intercourse, even those incurred for the salaries of the Diplomatic functionaries, are contingent; as they are not positively required by law, but to be incurred or not at the pleasure of the Executive. But the object of the enquiry does not make it necessary to undertake a critical discrimination between expences contingent and not contingent. This object is satisfied by the single consideration that whatever may be the meaning of the expression ‘contingent expences,’ the most reasonable, or rather the necessary construction of the law requires that they should, the former as well as the latter, be considered as within the general appropriation for the general expences of foreign intercourse. There has not, in a single instance since the permanent Act passed, been a distinct appropriation for the Contingent expences of foreign intercourse, and consequently, if they are not included in the general appropriation for the expences of foreign intercourse, no provision has been made for any part of the expences of foreign intercourse even for those on the coast of Barbary, so far as they are to be denominated Contingent. Now it is certain that taking ‘contingent expences’ in any sense the words will bear as distinct from other foreign expences, they constitute a considerable part of the annual & necessary expences, particularly on the Coast of Barbary; So that if no provision has been made for them, the Legislature have equally failed in their duty, and their object; and the Executive has been every year drawing money from the Treasury for purposes to which no money has been appropriated by law. And this has been the case not only since the date of the permanent Act, but throughout the period prior to it; except in the instance of the appropriation in 1799 ‘for the contingent expences of intercourse &c.’ In all the other instances, the appropriation has been in terms which would not provide for contingences [sic], unless they be included in the general terms of appropriation for intercourse with foreign nations.

“There is another construction, which the 2d section may be thought to bear. The section may be considered merely as providing for the settlement in a mode to be decided on by the President, of such contingent expences and such only, as may be provided for by laws making a distinct & express appropriation for contingent expences of foreign intercourse. As this meaning of the act would not exclude from the general appropriation for foreign intercourse, contingent as well as other expences, but only take from the President the power over the mode of accounting for contingent expences incurred under that general appropriation, it is not liable to all the objections which condemn the construction just examined. There are objections however which require that it should be rejected. 1. No appropriation, as already observed, has ever been made, since the law passed, in distinct & express terms, ‘for the contingent expences of intercourse between the U. S. and foreign nations.’ The effect of the act therefore would be not to provide a requisite mode for settling contingent expences, but to forbid the discretionary resort to that mode. This is not to be presumed. 2. Prior to the permanent act the like discretion was given to the President by every temporary Act preceding it, with respect to monies drawn under the common appropriations for foreign intercourse, which never specified contingent expences as to be distinguished from expences not contingent. 3. The construction which has prevailed since the passage of the permanent act has been that the monies drawn under the general appropriation for foreign intercourse and used for contingent expences, might be accounted for in the manner prescribed by the permanent act, and consequently that the general appropriation comprehended the contingent as well as the other expences.10

“From this view of the subject it appears that the authority given to the Executive by the annual appropriations for intercourse between the U. S. & foreign nations is co-extensive with the ‘term’ intercourse, limited however by one exception provided by the permant. act viz. that salaries to Ministers Plenipos. & their Secretaries [and] to Chargés des Affaires shall not exceed certain rates; and extented [sic] in one instance by that Act, viz in providing with respect to the Contingent portion of the expences in foreign intercourse that the President may dispense if he thinks proper, with the ordinary mode of accounting for monies drawn from the public Treasury, and substitute a certificate of the amount of the expenditures.

“With such a latitude to the Authority of the President, the case of Dr. S. must be within its competency, unless it should be decided that the intercourse with St. Domingo in which the expences charged by him, were incurred, was not an intercourse between the U. States & a foreign nation.

“Altho’ St. Domingo is to be regarded at the time as a Dependency or colony of the French Republic, being expressly so declared by Sect. 7. of the Act of Feby. 27. 1800,11 as well as being such by implication from other sources; still as part of a foreign nation, the local authorities there must be regarded as authorities of the French nation; and an intercourse with them, consequently as a national intercourse. This view of the matter seems to be confirmed by the clauses, in the Acts for suspending commerce with the French Dominions, which exempt from the suspension, vessels employed by the President, for the purposes of ‘national intercourse.’12 As the Acts authorise the President to take off the suspension, in reference to any of the Dependences of France, as well as to France herself; as Hispaniola is particularly noticed in one of the Acts, and was well understood to be principally if not exclusively the object of the exempting discretion vested in the President, and consequently the very Dependency in relation to which the vessels permitted to be employed for purposes of national intercourse would be needed, and be actually employed, the conclusion seems not to be avoided, that the intercourse with St. Domingo, was in the contemplation of the Legislature, a national intercourse, in other words, an intercourse with a foreign nation.

“On the second question whether the contract be estabd. by adequate proof, the considerations on one side, are the silence of the records of the Department of State, and of the correspondence of Docr. S.—the want of recollection of the fact by the then Secy. of State—the interest which the sole witness may have in his own testimony—the lapse of time previous to the presentment of the claim—the improbability of such a contract drawn from the opportunities of sufficient profit otherwise incident to the mission—and the presumption that the privileged cargo in the vessel might be meant as recompence for extra services—finally the want of a precedent for admitting a contract on parol evidence, and the danger of establishing one.

“On the other side it is alledged by the claimant that the silence of the records, if a fault is chargeable on the Department, and ought not to injure the claimant whose confidence in the Department was natural and proper—that the silence of his correspondence and the delay in presenting his accounts, proceeded from his finding it not necessary to draw for his advances, & from his expectation of an earlier return—that the contract is positively sworn to by a credible witness; and altho’ the Head of the Department who made the contract does not positively recollect it, he not only believes it on the testimony & circumstances produced; but recollects & retains impressions which enable him to declare that he thinks it extremely presumable that such a stipulation was proposed, & certain from its reasonableness that if proposed it was agreed to; and moreover that if the claim as now presented had been made whilst those connected with the transaction were in office, there would have been no hesitation in allowing it—that the profits to be made during his mission were precarious as proved by the failure of them; besides that the chance of them was an appurtenance to his consular services—that the amount of his expences imply a stile of living which he can not be supposed to have assumed on his private account, that he has charged less than the real amount, in order to be sure that no expence was included not fairly incident to his public character. He alledges particularly that he had no interest whatever in the privileged cargo of the vessel, which carryed him to St. Domingo.

“The material questions resulting from these opposite views of the case are 1st. whether a record or some office document of such a contract be the only proof that can be admitted. 2dly. whether if parol or circumstancial proof be admissible, the proof in this case be sufficient.

“1. It cannot be doubted that office documents are the most regular & satisfactory evidence of official transactions; but it would seem to be going too far to say that no other evidence whatever could under any circumstances be admitted; especially if the defect of the Archive evidence were the fault of the office, not of the private party to the Contract.

“Contracts between the Govt. & individuals are of different kinds & in different forms. Some of them particularly where sureties are required are always in writings mutually executed. Others are left to slighter & less formal evidence on paper. In the Department of State, particularly the foreign branch of it formality seems to have been held least essential. A proof that written or even express contract is not absolutely essential, is, that allowances have been so frequently made on the mere ground of a quantum meruit,13 which is at most nothing more than a contract by implication.

“Admitting the fact that an individual undertakes a public service on a verbal assurance from a competent public officer, that he shall receive a recompence, that he confides in that assurance, and in the attention of the officer to every circumstance of his duty, and in that confidence performs the services undertaken; and that the fact be established agst. the public by proof sufficient in private cases: it would seem that the laches of the officer ought not to invalidate an establishment of the fact by parol evidence, in any case where no law requires written in exclusion of every other evidence.

“Were the Govt. constitutionally suable like an individual, or were a form prescribed by law for giving to Courts a cognizance of such cases, it would seem that a Court would be bound to admit the ordinary proof of a bargain, especially if performed on one side and the performance accepted on the other; altho’ there might not, thro’ the laches of the officer making the contract, or other cause, be no [sic] written memorial of it in the Office.

“If such would be the decision of a Court having cognizance, the same decision would seem to be due from the cognizance of the Executive, which in usage is less restricted in many cases than Courts, in its rules both of justice & of evidence.

“2. As to the particular proof of contract offered in the case of Dr. S. it consists so essentially of the testimony of Mr. Yard,14 that it seems not necessary to weigh & compare the several circumstances & presumptions in favor of & against the claim. If unwritten proof be admissible at all, that testimony seems to be sufficient; unless discredited by the interest of the witness himself in it. If there be just ground for presuming or supposing this, the point ought to be decided by requiring the usual oath of purgation.

“As it does not appear from the accts. which have been settled in cases within the Dept. of State where no written contract or promise existed, how far they may have turned on other evidence of contract than that of official documents, or on the principle of quantum mer[u]it as implying a contract, it is not easy to trace how far precedents may or may not have existed of the admission of evidence other than that of Official documents. From recollections in the Office of State it may be inferred, that precedents of that sort have not been very unfrequent: and taking into view all the ingredients entering into the claim in the present case, particularly the interposition and decided opinion of the ex Secretary of State who was party to the transaction, the precedent would be marked with peculiarities rendering it less liable to be drawn into injurious consequence than many others which are in force. In general it seems certain that in the course of foreign Agences & transactions, settlements & allowances have been made on more slender grounds than those which support the claim of Dr. S.; and highly probable that the same may be found just & expedient in future practice. On this consideration & in order to avoid where it can be properly done the appearance or the imputation of partialities & prejudices, it might be advisable for the Executive to settle the claim if deemed admissible, rather than by rejecting it to turn the claimant over to the Legislature. Another consideration is that if the claim be considered as turning on the question of fact whether the alledged promise was or was not made, it seems to be a question more fit for Executive, than for Legislative investigation & decision.

“The last question is whether the vouchers for the expenditures are such as ought to be admitted. With respect to some of the charges the usual regular vouchers may justly be required. With respect to such as the Hous[e]hold expences other than the rent, and the travelling expences, regular vouchers have generally not been required in settling the accounts of foreign Agents. And it was judged by the Department of State, on the application of the Auditor, as practised in such cases, that the proof offered being stronger in the case of Dr. S. than had been admitted in others, the reality of the expenditures appeared to be sufficiently established.

“In order to explain this participation of the Department of State in the settlement of Accounts, it may be proper to remark that it is the effect of an arrangment which took place soon after the commencement of the present administration.15 Prior to that period the accounts connected with the Department of State were liquidated under the superintendance & with the sanction of the Head of it; after which they passed thro’ the forms of the Treasury Department. Since that period the accounts go in the first instance to the Treasury Department, the Accounting Branch of it, referring, in the progress of the settlement, to the decision of the Department of State, questions, depending on transactions, circumstances or usages, concerning which this Department might be supposed to have the better means of judging; and according to its decision, the practice has been to pass suspend or reject the articles in question.

“The preceding observations have been confined to the general enquiry whether the expences charged by Docr. Stephens, so far as not specially authorized by Acts of Congress, be legally allowable and ought to be allowed. If it be decided that they are of a nature not legally allowable, it will be unnecessary to go into the particular items: it being conceived, that they must be equally disallowed, (at least out of the fund for foreign intercourse) those for the hire of vessels as well as his personal expences, and his travelling as well as his stationary expences. Should it be decided that an allowance may and ought to be made, the merits of the several items may claim a particular consideration in the progress of the settlement. Respectfully submitted to the President.”