Enclosure: Memorandum on the Edward Stevens Claim, 23 March 1804
Enclosure: Memorandum on the Edward Stevens Claim
The constitution having provided that the President should appoint ambassadors, other public ministers and consuls and all other officers which shall be established by law, the first Congress which met passed a law (1790. July 1.) authorising him to draw from the treasury 40,000. D. annually ‘for the support of such persons as he shall commission to serve the US. in foreign parts, & for the expence incident to the business in which they may be employed.’ with a proviso that, exclusive of an outfit to a Min. Plen. or Chargé1 not exceeding a year’s salary, he should allow to any Min. Plen. not more than 9000. D. a year2 for all his personal services & other expences, to a Chargé not more than 4500. D., or to a Secretary not more than 1350. D. and with a 2d. Proviso as to the mode of settlement. this act, which was temporary, was continued by those of 1793. Feb. 9. 1794. Mar. 20. 1796. May 30. 1798. Mar. 19. till 1800. May 10. when they turned the two provisoes into enacting clauses, & made them permanent, and3 the appropriating clause which made the body of the law before, is now annually inserted in the general appropriating law. see 1800. May 7. 1801. Mar. 3. 1802. May 1. 1803. Mar. 2. and 1804. Mar. : As Congress, in order to limit the discretion of officers as far as is safe, is in the practice of throwing the objects of appropriations into groupes, e.g. to the Secretary of state & clerks & other persons in that department so much, Secy. of Treasy. &c so much, &c. clothing for the army so much, subsistence so much, pay so much, &c. so they might have analysed the foreign appropriation by allowing for Outfits of ministers so much, salaries of do. so much, contingent expences so much, &c. but they chose to throw it all into one mass, only providing that no outfit should exceed a year’s salary & no salary of a minister be more than 9000. D. of a Chargé 4500. D. Secretary 1350. D. &c.4 leaving the President free to give them less if he chose, and to give to Ambassadors, Envoys & other agents what he thought proper.
From the origin of the present government to this day the construction of these laws and the practice under them has been to consider the whole fund (with only the limitations beforementioned) as under the discretion of the President as to the ‘persons he should commission to serve the US. in foreign parts, and all the expences incident to the business in which they may be employed’ the grade consequently or character in which they should be employed, their allowance &c. thus Gouvernr. Morris was appointed by Genl Washington informally & without a commission to confer with the British ministers and was allowed for 8. months (I think) 1000. D. Colo. Humphreys was appointed in 1790. to go as an Agent to Madrid, and was allowed at the rate of 2250. D. per ann. Dumas was kept at the Hague many years as an Agent at 1300. D. a year. mr Cutting was allowed disbursements for sailors in London in 1791. 233.33 presents were made to the Chevalier Luzerne on taking leave, worth 1062. D Van Berkel 697. Du Moustier 555. in 1791. mr Short was sent to Amsterdam as an Agent in 1792 and allowed 444.43 D James Blake was sent as Agent to Madrid in 1793. & recieved an advance of 800. D. I know not how much afterwards as I left the office of Secy. of State at the close of that Year. in 1794. mr Jay was appointed Envoy extraordinary, a grade not particularly named in the constitution, or any law. yet Genl. Washington fixed his allowance. during the present administration mr Dawson & Lieutt. Leonard5 have been sent on special agencies. from the beginning of the government it has been the rule when one of our ministers is ordered to another place on a special business, to allow his expences, on that special mission, his salary going on at his residence where his family remains. mr Short’s mission from Paris to Amsterdam, from Paris to Madrid, mr Pinckney’s from London to Madrid, mr Murray’s from the Hague to Paris, & others not recollected by me are instances of this. these facts are stated to shew that it has been the uniform opinion & practice that the whole foreign fund was placed by the legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President. the whole is but from 40. to 60. or 70. thousd. dollars.
After the establishment of the general fund for foreign intercourse Congress found it necessary to make a separate branch for the Barbary powers. this was done covertly in the beginning, to-wit in 1792. they gave 50,000. D additional to the foreign fund, in 1794. 1,000,000. additional without limiting it to Barbary. yet it was secretly understood by the President and his discretion was trusted. in 1796. they gave 260,000 D for treaties with the Mediterranean powers. in 1797. 280,259.03 D for the expences of negociation with Algiers. they did not undertake a more minute analysis or specification, but left it to the President. the laws of 1796. May 6. 97. Mar. 3. 99. Mar. 2. give sums for specific purposes, because these purposes were simple & understood by the legislature. but in general in this branch of the foreign expences, as in the former one, the legislature has thought that to cramp the public service by too minute specifications in cases which they could not foresee, might do more evil, than a temporary trust to the President, which could be put an end to if abused.
In the Barbary department
| Joel Barlow was appointed by Monroe & Humphreys to make the treaty with Tripoli. | ||
| Joseph Donaldson was appointed by Humphreys to make the treaty with Algiers. | ||
| Davies is now at Tunis as an Agent appointed by Commodore Morris, confirmed by the Executive.6 | ||
In our Western governments heretofore established, they were so well understood by Congress, that they could & did specify every item of expence, except a very small residuum for which they made contingent appropriations. but when they came to provide at this session for the Louisiana government with which they were not acquainted, they give 20,000. D. for compensation to the officers of the government employed by the President and for other civil expences, under the direction of the President, and their first step towards the acquisition of that country was to confide to the President 2. millions of D under the general appropriation for foreign intercourse. these facts shew, that so far from having experienced evil from confiding the 40,000. D. foreign fund to the discretion of the executive without a specific analysis of it’s application, they have continued it on that footing and in many other great cases where analysis was difficult or inexpedient they have given the sums in mass, and left the analysis to him, only requiring an account to be rendered.
This statement has been made in order to place on it’s true ground the case of Doctr. Stevens. he was employed by mr Adams as Agent to St. Domingo and was to be allowed his expences; tho’ these were not limited, yet the law limits them in such case to what were reasonable. doubts have arisen at the treasury whether the Executive had a right to make such a contract & whether there be any fund out of which it can be paid? some doubt has been expressed whether an appropriation law gives authority to pay for the purpose of the appropriation without some particular law authorising it? if this be the case, the 40,000 D. fund has been paid away without authority from it’s first establishment; for it never has been given but by a clause of appropriation. the Executive believed this sufficient authority, and so we presume did the legislature, or they would have given authority in some other sufficient form. and where is the rule of legal construction to be found which ascribes less effect to the words of an appropriation law, than of any other law? it is also doubted whether the estimate on which an appropriation is founded does not restrain the application to the specific articles, their number & amount as stated in the estimate? were an appropriation law to come before a judge would he decide it’s meaning from it’s text, or would he call on the offices to produce their estimates as being a part of the law? on the whole, the following questions are to be determined. 1. Whether the laws do not justify the construction which has been uniformly given, either strictly, or at least so ambiguously, that, as in judiciary cases, the decisions which have taken place have fixed their meaning & made it law? 2. whether they are so palpably against law that the practice must be arrested? 3. whether it shall be arrested retrospectively as to monies engaged but not yet actually paid, or only as to future contracts? 4. whether any circumstances take Dr. Stevens’s case out of the conditions & rights of other foreign agencies?
Mar. 23. 1804.
PoC (DLC). Recorded in SJL with notation “Steven’s (Dr.) case.”
For the legislation passed by the first congress on 1 July 1790, entitled “An Act providing the means of intercourse between the United States and foreign nations,” which was continued by acts passed in 1793, 1794, 1796, and 1798, see , 1:128-9, 299-300, 345, 487, 541. enacting clauses: the act of 10 May 1800 reiterated the salaries of public ministers and enumerated the procedure for the settlement of accounts. The act called for an annual accounting of charges under contingent expenses. The president, however, had the right to issue certificates for expenditures he thought it “advisable not to specify” in public accounts (same, 2:78-9; Vol. 24:569n). Congress included funds for intercourse with foreign nations in a 7 May 1800 appropriations act and, subsequently, annually inserted that provision in general appropriations acts (, 2:62, 66, 120, 188, 214-15, 269).
construction of these laws: TJ quoted from the first section of the 1 July 1790 foreign intercourse act (, 1:128).
In December 1790, TJ as secretary of state sent Gouverneur morris a draft for $1,000, noting “this business must at times have interfered with your private pursuits, and subjected you also to additional expenses.” George Washington later certified that $2,000 had been allowed for Morris’s mission (Vol. 18:303-4; Vol. 27:653n). For the amount allowed to David humphreys for his secret trip as courier to Madrid through London and Lisbon, see , 9:502, and Vol. 19:583. On 11 Aug. 1790, TJ advised: “Thro’ the whole of this business it will be best that you avoid all suspicion of being on any public business.” Humphreys was to “appear as a private traveller” (Vol. 17:125-7). For the unofficial character of both missions, see Vol. 36:433-4.
TJ’s estimates and statements on the foreign fund for 1790 to 1793 included $1,300 for C. W. F. Dumas at the hague. In his estimate for 1790 to 1791, TJ entered $233.33 for John B. Cutting’s disbursements for sailors in london. TJ supported Cutting’s attempts before Congress to gain reimbursement for over $7,000 expended for relief of American seamen in 1790 (, 9:502; Vol. 19:583; Vol. 23:104-6; Vol. 24:510; Vol. 33:619n).
presents were made: TJ had a formula for calculating the worth of the gold medal with chain to be presented to a departing foreign diplomat, based on time in office. Chevalier de La Luzerne served as French minister to the United States for over eight years; F. P. Van Berckel, as Dutch minister, for about five years; and Elénore François Elie, Comte de Moustier, as French minister, for over four years (, 9:503; Vol. 16:90, 367; Vol. 19:583; Vol. 26:479n).
short was sent to amsterdam: see TJ’s October 1792 statement of State Department salaries and disbursements for the payment of $444.43 to William Short for the expenses of his mission to Amsterdam and $320 toward his mission to Madrid (Vol. 23:10-11n; Vol. 24:20, 510). For the total reimbursement for Short’s various missions, see , 6:236n. On 12 July 1793, james blake received an $800 advance for his mission as a courier to Madrid (Vol. 26:483; Vol. 27:654, 659, 660).
John jay received $12,000.36 for expenses incurred as envoy extraordinary to Great Britain in 1794 (, 16:328n; , 15:619-20; , 6:236).
mr pinckney’s from london to madrid: regarding the $7,737.49 paid to Thomas Pinckney for expenses during his 1795 mission as envoy extraordinary to Spain, see , 6:236n; Vol. 28:119n, 490, 623-4.
this was done covertly: for the 1792 act that included an appropriation of $50,000 “to defray any expenses which may be incurred in relation to the intercourse between the United States and foreign nations,” the 1794 act that authorized an additional $1,000,000 to be applied “under the direction of the President,” and the 1796 act that allocated $260,000 for treaties with the mediterranean powers, see , 1:284-5, 345, 487.
sums for specific purposes: in an act of 3 Mch. 1797, Congress appropriated $280,259.03 for negotiations with Algiers in addition to funds for past-due annuities. An act of 6 May 1796 allowed $24,000 per year for expenses of the treaty with Algiers. Additional appropriations of 2 Mch. 1799 included $78,700 for “contingent expenses of intercourse with foreign nations” (same, 1:460, 505-6, 723-4).
By an act of 19 Mch. 1804, Congress appropriated $20,000 to be expended under the direction of the president for the civil government of louisiana “and to be accounted for as other public monies” (same, 2:272). For the appropriation of $2,000,000 that enabled the acquisition of that country, see Vol. 39:584.
1. Preceding two words interlined.
2. Preceding two words interlined.
3. TJ here canceled “instead of.”
4. TJ here canceled “without.”
5. Name interlined in place of “Nicholson.”
6. TJ wrote these comments about the three Barbary appointments perpendicularly in the margin, probably after he received Jacob Wagner’s communication of 24 Mch.