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.