Decr. 7, 1807
I have examined with great care and attention the papers you submitted to my consideration, concerning the claim of the Representative of the late Caron de Beaumarchais. The subject is in every view important. Though I commenced the investigation with prepossessions unfavorable to the claim; from the first perusal of the documents, the inclination of my mind, was against the respectable opinions which have been given on the principal, if not the sole question material to be decided. This circumstance led me to distrust my first impressions. I suspected they must be erroneous, and that they would yield to a more diligent enquiry and more mature deliberation. With this view I have reconsidered the case, and the result of my reflections confirms me in my original opinion. I shall give it with great deference, because the sentiments I entertain, are opposed to those of gentlemen every way well qualified to judge correctly on the subject.
My remarks will be confined to that part of the case, which embraces the question relative to the Milli⟨on⟩ of livres received on the 10th June, A. D. 1776.
Before we can form a correct judgment of the law applicable to the case, it is necessary first to ascertain the facts. Ex facto oritur jus. Very fortunately in this instance, there is little dispute about the mere fa⟨ct⟩ tho’ the inferences to be drawn from particular circumstances, that exist in the case, afford room for great ⟨di⟩versity of opinion.
It appears satisfactorily from the docu⟨ment⟩ and seems indeed to be admitted, that the United Stat⟨es⟩ did actually receive, to the full value of the million of livres in question, in arms, ammunition and warlike stores from the late Mr Beaumarchais, according to contract. The account between the U States and Beaumarchais, as settled by Mr Harrison the Auditor on the 24th. May, 1793, and as revised and corrected by Mr. Duvall the Comptroller, on the 10th. Decr. 1805, fully confirms this fact. That Beaumarchais originally had a legal claim for the value of these articles must be evident from a perusal of the papers. That this claim must yet exist; unless satisfied or extinguished is equally clear. On the part of the United States it is contended that this claim has been paid. When the allegation of payment is opposed to a demand, acknowledged to be otherwise just, the plea should be supported by proof equally strong with the evidence that would have been required to verify the claim. The plea of payment is affirmative and the burthen rests with the party who relies on this defence to make out his case by sufficient testimo⟨ny.⟩ Natural justice would seem to require that degree of pro⟨of⟩ which would be necessary to establish the right, in an original suit, to recover a sum of equal amount.
The United States however do not allege that they paid the money themselves. They do not say t⟨hat⟩ Beaumarchais received this sum, from their hands, but th⟨at⟩ it was paid for them, at a particular period, by the French Government; to speak more correctly, that the Government of France advanced to Beamarchais, on account of the American Government, a million of l⟨ivres⟩ as part of a larger sum gratuitously given by the King to the United States. For this sum the Uni⟨ted⟩ States claim a discount against the representative of Beaumarchais. Whether it be considered in the ligh⟨t⟩ of a payment, or of a discount, cannot vary the question or the degree of proof required.
Let us, to make the case more familiar, suppose a suit to be instituted against the U. States, to recover the value of the articles furnished, amounting to one million of livres; the defence relied upon, would be either the plea of payment or discount. Let us proceed to examine the Testimony, that would be adduced to make out the defence.
If the United States should fail in maintaining by legal proof the grounds of defence assumed, the Claim of Beaumarchais must be established against them, for there is no other objection to it. Unless it has been satisfied in the manner contended, it is a legal and existing claim for a debt contracted during the revolution.
The contract entered into by Dr. Franklin with the Count de Vergennes on the 25th. Feby 1783 is relied on to prove that the King of France had, previously to the date of our Treaty of the 6 Feby 1778 granted to the United States three Millions of livres, as aids and subsidies, unde⟨r⟩ the title of gratuitous assistance from the pure gene⟨ro⟩sity of the King. This paper ascertains the fact, an⟨d⟩ imports the receipt by the U States. The minister of the French Government declares, and that of the American Government admits, the grant of three Millions of liv⟨res⟩ had actually taken place before the 6th. Feby 1778. So far as the two Governments are concerned, this instrument would seem conclusive upon them. But it is very questionable, how far a contract, to which Beaum⟨ar⟩chais was neither a party, nor privy, ought to affect ⟨his⟩ rights or interests. It is strictly speaking in relatio⟨n⟩ to him, res inter alios acta. The effect of this contract is to shew, that the French government, declared they had granted to us, previous to the 6th. Feby 1778, three Millions of livres, and that we acquiesced in their statement, without calling on them to explain in what way, either in the shape of aids or subsidies, all the money had been applied. We were then satisfied with their simple assertion, reposing full faith and confidence, I presume in their declarations, and believing the whole sum had been regularly disbursed, for our benefit and advantage.
It was subsequently ascertained that the Banker of the UStates at Paris had received but two of these three millions of livres. In the year 1786 application was made to the Count de Vergennes, to ascertain at what date, and to whom, the remaining Million was paid. It is a remarkable fact in this case, that the application was not made by the American Government. Dr. Franklin, to prevent his character from being implicated in the transaction, solicited Mr. Le Grand, the Banker of the U States, to make the enquiry of the Count de Vergennes. Several letters were accordingly addressed to the proper officer, and laid before the Mi⟨nis⟩ter, earnestly demanding information on the subject⟨.⟩ The answers gave the date, on which the money wa⟨s⟩ paid, but in the last the Count de Vergennes persis⟨ted⟩ in his refusal to give up the name of the indiv⟨idu⟩al who received it, declaring it would be useless ⟨and⟩ inconvenient. These circumstances prove the transaction ⟨was a⟩ secret one, and would seem to impress the belief that the application of the money was to remain a profo⟨und⟩ secret. Why this should be done, unless it had bee⟨n⟩ expended in secret services, it would be difficult to say. The natural inference is that it was applied in this manner. Whether the undertaking to pay with one hand in this secret way, the money they had given with the other, instead of permitting the UStates to lay it out, according to their own discretion, can be fairly considered within the terms of their grant, was originally a question of importance between the two Governments. That in this particular instance the French Government assumed the power, I presume, appears from the facts adduced: That we acquiesced in it is equally plain. By the contract we there had acknowledged the grant, tho’ we knew neither the date nor the person to whom the money was paid.
When the name of the individual was refused, it could not have been intended that our Government should have from him, any account of its application; for without knowing the person who received the money we could not possibly have an account rendered. It would be difficult at this period (1786) to assign any other motive for concealing the name of the individual who received the money, than the one already suggested. It is true that France attempted in justifyi⟨ng⟩ her conduct towards England, to impose the belief, tha⟨t⟩ she gave us no assistance prior to her Treaty with us. But as far back as 1783, by the contract with Dr. Franklin, she avowed the fact of having voluntar⟨ily⟩ granted us large sums before the date of the Treaty. ⟨Nor⟩ did she hesitate to declare that arms, ammunition, o⟨r⟩ warlike stores had been furnished from the King’s stores.
The concealment of his name is in abso⟨lute⟩ hostility with every idea that the individual was accou⟨nt⟩able to the United States, because it effectually defeated that object. These facts and circumstances speak for themselves, and in my humble opinion, prove that the original destination of the money was directed to a secret purpose.
As far as we have progressed with the facts and documents, there is, I believe, no evidence, from which it could be presumed, that the million of livres had been received by Beaumarchais on account of the United States. We might as legally charge it to the account of any other person, as Beaumarchais.
It seems however, on proceeding further, that Dr. Franklin suspected, as this sum had been paid before the arrival of the American Commissioners at Paris, that it was probable it had been received by Beaumarchais. In what capacity does not appear.
After the death of de Vergennes, and when France had become a Republic, in the year 1794, on the application of our Minister G. Morris, a diligent search was ma⟨de⟩ among the public papers, and at length a receipt was found which I take the trouble to transcribe.
"I have received from Monsieur Du Vergler, agreeably to the order transmitted to him, of Monsieur the Count of Vergennes dated the 5th. current, the sum of one Million for which I will account to my said Sieur Count de Vergennes. At Paris the 10th. June 1776
signed Caron de Beaumarchais
Good for one million of livres Tourn⟨ois."⟩
This is the important piece of testimony in the case. It is on the foundation of this receipt, connec⟨ted⟩ with the declarations contained in the contract of 1783 that the fabric of defence rests:
Let us proceed to examine this receipt agreeably to the general principles of evidence and law. On the face of the instrument itself, it appears that Beaumarchais was to account to de Vergennes and not to the United States for the expenditure of the money. This contradicts the idea that he was to be accountable to us, for its application. When a written instrument is produced in a Court of justice, generally speaking you cannot travel out of it. It cannot be varied by parole evidence where there is no doubt as to the import of its terms. In this case there is neither the ambiguitas patens nor the ambiguitas latens. The engagement of Beaumarchais is positive, express and unqualified, to account to de Vergennes, and to him only, for the money received. The United States are no parties to the instrument; there is no stipulation to render them any account of the expenditure. Taking this insulated paper could we legally charge, in an account against Beaumarchais this sum as a debit, in order to compel him to shew its applicatio⟨n⟩ when the instrument itself shews that for the application of the money he was solely responsible to de Vergennes From de Vergennes the money was received, and to him alone, had Beaumarchais engaged to accoun⟨t.⟩ It is not easy to conceive, upon what principle, he ought to be obliged to account twice for the sam⟨e⟩ sum. If in compliance with the language of his r⟨e⟩ceipt, he satisfied de Vergennes, is it reasonable that ⟨he⟩ should be compelled to settle his accounts a second tim⟨e⟩ with us. This would make him doubly responsible. ⟨For⟩ one million received he must account for two.
I believe the million specified in the receipt to be the same with that which de Vergennes ⟨de⟩clared was paid on the 10th. June 1776. All the circumstances combined seem fairly to establish their identity.
An idea had been once entertained that the Arms and ammunition, or part of them, furnished the United States by Beaumarchais, in consequence of their having been taken from the King’s stores, were furnished on account of his Most Christian Majesty. To remove every doubt on this point, our Commissioners in 1779, applied to de Vergennes for information on the subject. His reply, and the letters of Mr. Girard to Congress in the same year, are full and explicit on this point. They state that all the articles were furnished by Beaumarchais on his private account, who had settled with the Artillery Department for them, by giving orders or bills for the value; that it was a transaction wholly commercial, with which the Minister of France had no concern; and that he could only interfere to prevent the United States being pressed for an immediate reimbursement. This explanation excludes the idea, that the Million of livres in question were intended to be applied to the payment in advance of the accou⟨nt⟩ of Beaumarchais, for arms and supplies furnished by him under an agreement dated 22d. July 1776, with Silas Dean the Agent appointed by a secret Committee of Congress, or any subsequent contract. The impropriety also of supposing that the French Government would on the 10⟨th.⟩ June 1776 pay out of the coffers of the Treasury a M⟨illi⟩on of livres, that they might, at a subsequent perio⟨d,⟩ be deposited in the military chest, must be obvious. ⟨We⟩ have already seen that the War Department however, was not paid in cash, but in bills or drafts, whose days of grace might be extended, and the time of paymen⟨t⟩ thus prolonged, by the French Government. Hence ⟨the⟩ offer of de Vergennes, just stated, to interfere so far as to prevent the American Government being pressed for payment by Beaumarchais.
When a proposal was made, as appears by Mr. Girards note of Jany 4 1779, in order to relieve the United States, that France should pay on account of Congress a certain sum of money to Beaumarchais, to whom Congress were indebted, we do not find any allusion to this receipt for One Million of livres received long before. It is reasonable to conclude that some notice would have been taken of it, if it were intended pro tanto a payment on discount against the debt of Beaumarchais.
Admitting then the million of livres specified in the receipt of Beaumarchais, to be the identical sum which de Vergennes asserts in the contract with Dr. Franklin was granted among the "aids and subsidies furnished to the Congress of the United States under the title of gratuitous assistance" and combining these facts, let us enquire into their legal operation and effect. We will first consider them separate and apart from the other testimony in the case, and then review the⟨m⟩ in connection with the rest of the evidence
De Vergennes was privy to the receipt, and was a party to the contract. Beaumarchais was a party to the first, but was not privy to the last. In a strictly legal sense, an instrument between third persons made w⟨ith⟩out Beaumarchais’ knowledge, participation or consent, a single line of which he could not alter, ought no⟨t⟩ to affect his rights. For the language of this instrum⟨ent⟩ he cannot be responsible in any shape. The receipt to de Vergennes declares, and it may be considered as his own declaration, that the money was to be accounted for to him and not to the United States. In the contract, the same Minister declares this sum to be among the aids and subsidies granted the United States. Are these different declarations from the same lips reconcilable with each other? They are not if we compel Beaumarchais to account with the United States, for his stipulation is clear and express to account to de Vergennes. On the other hand, if de Vergennes considered the application of this Million to the secret service of America, as one of the most powerful aids that could be given, he might number it in that class. That this construction was legally or politically correct I will not undertake to say. Suffice it to observe, that from a view of the various facts, it seems to have been the construction put upon the voluntary grants of the King, by the French Government at that period. A construction acquiesced in by our own Government, in the contract of 1783, when we knew neither the date nor the person to whom the money had been paid.
It is a general principle, that you should reconcile testimony apparently contradictory. This exposit⟨ion⟩ of the facts, as far as we have progressed with them is ca⟨l⟩culated to produce such an effect. It renders the vario⟨us⟩ documents consistent with each other, and relieves us from the embarrassment that would otherwise ensue.
When we advert to the official decla⟨ra⟩tions of Genl. Turreau, we find they verify the posit⟨ion⟩ that this million of livres was appropriated solely a⟨nd⟩ conclusively to a secret service. The source from whence the testimony is derived is that alone to wh⟨ich⟩ resort could be had for informations on the subject In every court of Justice, the best evidence, of which the natur⟨e⟩ of the case admits, is always required. The United States allege that the French Government paid this debt for them. That Government thro’ their Minister, declares officially that they did not. In the case of individuals there could not be room for dispute. The just principles of our laws require not impossibilities Lex non cogit seu impossibilia seu vania. The French Minister officially declares that for this million of livres Beaumarchais accounted with de Vergennes agreeably to the tenor of his receipt, and that it is their uniform rule to destroy all the vouchers and accounts relative to secret transactions as soon as they have been duly sanctioned.
Upon the whole I cannot think the plea of payment or discount can be supported, unless collusion with Beaumarchais be attributed to the French Government; an idea inadmissible, and which cann⟨ot⟩ enter into my view of the case.
Such are the remarks I have to submit in obedience to your request. If they are of any service in performing the task assigned to you by the House of Representatives, I shall feel amply compensated for the time and labour employed in examining the documents. I have the honor to be &c
(signed) C. A. Rodney
DNA: RG 233—LRHR—Legislative Records of the House of Representatives.