XL.

Dr. Stevens' case.* June 12th, 1804.

I consider the annual act which appropriates a given sum to the expenses 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 and expenses to certain specified grades (which are those chiefly used by the United States), not more than specified sums shall be allowed. 2. That the whole expenses 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 than those (for personal services and expenses), and to employ any unspecified grade on such salary and allowance as he thinks proper within the limits of the whole appropriation. Nor is any law, or principle of law known, which would forbid the superadding these agencies and allowances for them to the ordinary functions of a court minister, &c. I consider the appointment, therefore, and allowance. to Dr. Stevens to have been within the limits of the Executive authority.

*June 12th, 1804.

MR. GALLATIN,-On the subject of Dr. Stevens' case, I had, before receiving your letter, endeavored to form as correct a judgment as I could, and had made some notes, keeping them open till I might see whether anything further should be added. I have this morning put them into some form. Of the purity of the motives of your objections, it was impossible I should ever entertain a moment's doubt. Of my opinion of their solidity, you will see a proof in the conclusions I have drawn, and which will probably condemn more than the half of Dr. Stevens' claims. I enclose you a copy of my opinion on the subject, which may serve as the direction of the Department of State to the comptroller. Accept my affecionate salutations.

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 Dr. Stevens. What is that reasonable compensation? Not his expenses, however extravagant, even if a contract could be proved that his expenses 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 independent, 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, and therefore entitled to an outfit, or only as an occasional one to be allowed the reasonable expenses 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 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 the Senate, to despatch 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, and to keep up a separate corps of diplomacy of his own, will require great consideration, caution and candor, and 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 individual 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, and 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 Dr. Stevens' claims. The settling by a quantum meruit, the claim (for personal services and expenses) gets rid of this question so far. For that the services were performed is notorious, and 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 United States pay their servants. Monopolizing compensations are among the most fatal abuses which some governments practice 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 and unusual. . The claim for travelling expenses within the limits of his agency, would require proof of positive contract. When an agent for a limited district, is sent into another, his expenses have been usually allowed; but never those of travelling to and from places within his regular care, and for the regular purposes of that care. His general allowance compensates his general superintendence over the whole, and to pay him for visiting each particular part also, would be a double payment. This would lead to endless claims and difficulties.

The hire of despatch 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 and 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 despatch vessels came purely on public ac

count, and whether the matter they were charged with justified the expense, should be strictly inquired into.

Inquiry 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; and 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 person, public or private. The laws in refusing an appeal to the ordinary tribunals in questions between an individual and the public, and leaving the decision in 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 and 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 controlled by verbal agreement or other intrinsic 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 withhold by public power what is justly due to an individual. This investigation cannot be better trusted than to the justice and judgment of the comptroller, to whom therefore it is referred.

XLI.

Notes on a Draught for a second Inaugural Address.

The former one was an exposition of the principles on which I thought it my duty to administer the government. The second, then, should naturally be a compte rendu, or a statement of

facts showing that I have conformed to those principles. The former was promise: this is performance. Yet the nature of the occasion requires that detail should be avoided; that the most prominent heads only should be selected, and these placed in a strong light, but in as few words as possible. These heads are foreign affairs, domestic ditto, viz.: Taxes, Debts, Louisiana, Religion, Indians, the Press. None of these heads need any commentary but that of Indians. This is a proper topic, not only to promote the work of humanizing our citizens towards these people, but to conciliate to us the good opinion of Europe on the subject of the Indians. This, however, might have been done in half the compass it here occupies. But every respecter of science, every friend to political reformation, must have observed with indignation the hue and cry raised against philosophy and the rights of man; and it really seems as if they would be overborne, and barbarism, bigotry, and despotism, would recover the ground they have lost by the advance of the public understanding. I have thought the occasion justified some discountenance of these anti-social doctrines, some testimony against them. But not to commit myself in direct warfare on them, I have thought it best to say what is directly applied to the Indians only, but admits by inference a more general extension.

XLII.

Farewell Address to Th: Jefferson, President of the United States.

[Agreed to by both Houses, Feb. 7, 1809.]

Sir, The General Assembly of your native State cannot close their session, without acknowledging your services in the office which you are just about to lay down, and bidding you a respectful and affectionate farewell.

We have to thank you for the model of an administration