To the Speaker of the House of Representatives
Department of State, April 6th 1802
I have the Honor to send herewith a Report on the Memorial of Fulwar Skipwith, agreeably to a Resolution of the House of Representatives, of the 19th Januy last, and to be, with very high respect, Your Obedt Servant,
Department of State, 6th. April 1802.
The Secretary of State to whom was referred by the House of Representatives the Memorial of Fulwar Skipwith, stating certain claims against the United States, respectfully submits the following report.
The memorialist represents that in the year 1795, while he acted as Consul General for the United States at Paris, his House was robbed of three Ingots, amounting in value to 4550 Dollars which had been deposited under his care by direction of the Minister Plenipotentiary of the United States to the French Republic; that at the request of the said Minister he advanced that sum for the purpose of making up in Holland the fund to which the said Ingots belonged, drawing at the same time for his reimbursement by the direction of the said Minister, bills on the United States to the amount of his advance: and that the said bills were protested, and the advance never repaid.
This representation appears to be established in every essential point, by satisfactory documents. It also appears that no recompence was ever made to, or charge made by, the memorialist for his trouble in receiving and taking charge of the Ingots committed to him; and that no fault or negligence in the means used by him for keeping or recovering the lost Ingots, can be reasonably imputed to him.
The refusal of the Secretary of the Treasury to repay the Memorialist the sum advanced by him is explained in a letter from Mr. Wolcott to Mr. Monroe, Dated Septr. 16th. 1796, of which a copy is herewith reported No. 1. and from which the following is an extract, “I deem it unnecessary at this time to express any opinion as to the precautions taken by Mr. Skipwith to secure the bullion, whilst in his possession, because, by my contract with Mr. Swan, the proceeds of the bill were to be at his risk until lodged in the hands of our bankers at Amsterdam. It is for this reason that I did not conceive myself at liberty to pay the draft drawn on me by Mr. Skipwith for the money which he states to have expended in the purchase of bullion to replace an equal quantity missing out of his Store of the parcel received from Dallarde and Swan.”
On recurring to the said contract, a copy of which No. 2. is herewith reported, it appears that in pursuance thereof the said James Swan was bound to furnish bills on his House at Paris payable to the Minister Plenipotentiary of the United States (of which bills the ingots in question were part of the proceeds) that on the payment thereof, amounting to 120.000 Dollars in value and on the obtaining the necessary passports from the French Government, the said sum was to be forthwith transported to Amsterdam at the risk and expense of the said James Swan & delivered to Messrs. Wilhem & Jan Willink, Nicholas & Jacob Van Staphorst & Hubbard on account of the United States: and that within thirty days after due evidence should be produced at the Treasury of such delivery, the price of the bills were to be then paid.
It may be proper to add that from a report of the then Attorney General, a copy of which No. 3. is herewith reported, it appears that he concurred with the Secretary of the Treasury in opinion that the United States were not liable to the Memorialist for the advance made by him to supply the loss occasioned by the robbery of his House.
With this view of the subject however, it is necessary to combine the following considerations.
The first is that admitting the deposit in the hands of the memorialist to have been at the risk of James Swan, the memorialist received it as the property of the United States, and made his consequent advance for their use, under directions of the Minister Plenipotentiary which he was at least justifiable in respecting and pursuing.
But it appears in the next place that the Minister Plenipotentiary himself was equally justifiable in the part which he had in the transaction. Not only were the bills made payable to him, by which means the proceeds necessarily passed under his care; but according to information from the Treasury Department, it appears that no copy of the contract between the Secretary of the Treasury and James Swan was transmitted to the said Minister Plenipotentiary. The information which appears to have been given him with respect to the tenor of it is contained in a letter of June 23d. 1795 to him from the Secretary of the Treasury, of which a copy is reported No. 4. In this letter it is said to Mr. Monroe that “if the bill [from which the Ingots proceeded]1 is accepted and the transportation of the money assured [by passports from the French Government] you will be pleased to notify the House of Wilhem & Jan Willink Nicholas & Jacob Van Staphorst & Hubbard of Amsterdam of what shall have been done; and you will expedite the delivery of the funds through the House of Dallarde, Swan & Company; who are to co-operate to place the same in Amsterdam.” In another paragraph it is said “I will attempt no apology for troubling you with a business which is foreign to your Diplomatic duties, because I know that your Zeal for the interest of the United States will readily induce you to comply with my request, and because you will percieve that your cooperation is really necessary to the success of an interesting object.”
Altho the intention of the writer in this case, with the contract in his Mind, might annex to his expressions the same ideas as are expressed in that instrument, it appears both from the conduct & correspondence of Mr. Monroe, that he considered, and as the Secretary conceives justly considered, his zeal for the interest of his Country, and the preservation of its public faith abroad, as made responsible for effectuating with as little delay as possible the remittance to the Bankers of the United States in Holland. And as this construction of his duty was favorable in every view to the conveniency of the House of Mr. Swan in Paris, it may be presumed that they would not be forward in suggesting a different one.
With respect to the Official opinion given by the Attorney General it is to be remarked, that as it was founded on the contract or on the contract and the letter above cited taken together, it is not applicable to the question which now presents itself.
To turn the memorialist over to a claim of reimbursement from Mr. Swan who, as may be inferred from a letter from him of Septr. 30th. 1796, to the Secy. of the Treasury (an extract of which No. 5 is reported herewith) would contest its legality, would appear the less justifiable on the part of the United States, and the more hard against the memorialist; inasmuch as it appears by an extract of a letter from Mr. Monroe to the Secretary of the Treasury of Jany. 14th 1796, N. 6. herewith also reported, and a letter from the latter of the 14th April 1796, that the loss and replacement of the Ingots was known at the Treasury a considerable time prior to the payment of James Swan under the contract; so that it was in the power of the United States to have included the advance made by the Memorialist in the settlement with Mr. Swan; if he and not the United States were to bear the loss; or if it were doubtful on which of the parties the loss ought to fall, it would seem no unreasonable expectation, in behalf of the Memorialist, considering the circumstances and authority under which he acted, that his speedy repayment should be either satisfied by the United States, or secured to him by their precautions.
From this view of the whole subject the Secretary concludes that the United States are in justice bound to admit against themselves, in the first instance at least the claim of the Memorialist to be reimbursed the sum advanced by him to replace the value of the Ingots of which he was robbed, with interest from the date of the advance according to the legal rate at Paris where the advance was made, and where the Memorialist then resided and has since continued.
The memorialist further represents that on the 1st. of November 1796, he forwarded a resignation of his Commission of Consul General; that the notification of its acceptance by the President, was not received until the 1st. of May 1799, that during this interval, from respect to the public good, he continued to exercise the functions of his Office, rendered the more necessary and the more laborious by the absence of a public Minister and by the circumstances of the crisis; but without receiving any of the emoluments of Office, notwithstanding a considerable expenditure incurred by him in the hire of an Office, Clerks, postages, Stationery &c.: and that he considers himself entitled to compensation for these services and expences.
On this part of the Memorial the Secretary of State is of opinion, that as the Memorialist might have so expounded or modified his resignation as to have legally claimed the emoluments of Office until it should be accepted, and as the Official emoluments were to be derived from individuals not from the public, the United States are not in rigor bound to make the compensation prayed for. Nevertheless considering the extraordinary lapse of time during which he was in suspense, and probably led by daily expectation of being relieved from it, to prolong his services and expences, it is conceived that liberal justice would not be exceeded by a compensation as nearly equal as can be estimated to the emoluments which would have accrued: and still more reasonable that at least his actual expenditures should be reimbursed.2 All which is respectfully submitted