Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson
Chapter 140 : Sir, I have duly considered the letter you were pleased to refer to me, of the 18th of

Sir,

I have duly considered the letter you were pleased to refer to me, of the 18th of August, from his Excellency Governor Pinckney to yourself, together with the draught of one proposed to be written by him to the Governor of Florida, claiming the re-delivery of certain fugitives from justice, who have been received in that country. The inconveniences of such a receptacle for debtors and malefactors in the neighborhood of the southern States, are obvious and great, and I wish the remedy were as certain and short as the latter seems to suppose.

The delivery of fugitives from one country to another, as practised by several nations, is in consequence of conventions settled between them, defining precisely the cases wherein such deliveries shall take place.

I know that such conventions exist between France and Spain, France and Sardinia, France and Germany, France and the United Netherlands; between the several sovereigns const.i.tuting the Germanic body, and, I believe, very generally between co-terminous States on the continent of Europe.

England has no such convention with any nation, and their laws have given no power to their executive to surrender fugitives of any description; they are, accordingly, constantly refused, and hence England has been the asylum of the Paolis, the La Mottes, the Calonnes, in short, of the most atrocious offenders as well as the most innocent victims, who have been able to get there.

The laws of the United States, like those of England, receive every fugitive, and no authority has been given to our executives to deliver them up. In the case of Longchamp, a subject of France, a formal demand was made by the minister of France, and was refused. He had, indeed, committed an offence within the United States; but he was not demanded as a criminal, but as a subject.

The French government has shown great anxiety to have such a convention with the United States, as might authorize them to demand their subjects coming here: they got a clause in the consular convention signed by Dr.

Franklin and the Count de Vergennes, giving their Consuls a right to take and send back captains of vessels, mariners, and pa.s.sengers.

Congress saw the extent of the word pa.s.sengers, and refused to ratify the convention; a new one was therefore formed, omitting that word.

In fact, however desirable it be that the perpetrators of crimes, acknowledged to be such by all mankind, should be delivered up to punishment, yet it is extremely difficult to draw the line between those, and acts rendered criminal by tyrannical laws only; hence the first step always is a convention defining the cases where a surrender shall take place.

If, then, the United States could not deliver up to Governor Quesada, a fugitive from the laws of his country, we cannot claim as a right the delivery of fugitives from us; and it is worthy consideration, whether the demand proposed to be made in Governor Pickney's letter, should it be complied with by the other party, might not commit us disagreeably, perhaps dishonorably, in event; for I do not think we can take for granted, that the legislature of the United States will establish a convention for the mutual delivery of fugitives; and without a reasonable certainty that they will, I think we ought not to give Governor Quesada any grounds to expect that in a similar case, we would re-deliver fugitives from his government.

I have the honor to be, with the most profound respect and attachment, Sir, your most obedient and most humble servant,

Th: Jefferson.

LETTER Lx.x.xIV.--TO WILLIAM SHORT, November 24, 1791

TO WILLIAM SHORT.

Philadelphia, November 24, 1791.

Dear Sir,

My last to you was of August the 29th, acknowledging the receipt of your Nos. 67, 68, 69, 70, 71, and informing you I was about setting out to Virginia, and should not again write to you till my return. Only one vessel has sailed from hence to Havre since my return, and my notice of her departure was so short, that I could not avail myself of it. Your Nos. 72, 73, 74, 75, 78, came here during my absence, and 79, 80, were received October the 28th. The Nos. 76 and 77 seem to be missing.

You mention that Drost wishes the devices of our money to be sent to him, that he may engrave them there. This cannot be done, because not yet decided on. The devices will be fixed by the law which shall establish the mint. M. de Ternant tells me he has no instructions to propose to us the negotiation of a commercial treaty, and that he does not expect any. I wish it were possible to draw that negotiation to this place. In your letter of July the 24th, is the following paragraph. It is published in the English newspapers, that war is inevitable between the United States and Spain, and that preparations are making for it on both sides.' M. de Montmorin asked me how the business stood at present, and seemed somewhat surprised at my telling him, that I knew nothing later than what I had formerly mentioned to him. I have, in more than one instance, experienced the inconvenience of being without information. In this, it is disagreeable, as it may have the appearance with M. de Montmorin, of my having something to conceal from him, which not being the case, it would be wrong that he should be allowed to take up such an idea. I observed, that I did not suppose there was any new circ.u.mstance, as you had not informed me of it.' Your observation was certainly just. It would be an Augean task for me to go through the London newspapers, and formally contradict all their lies, even those relating to America. On our side, there have been certainly no preparations for war against Spain; nor have I heard of any on their part, but in the London newspapers. As to the progress of the negotiation, I know nothing of it but from you; having never had a letter from Mr. Carmichael on the subject. Our best newspapers are sent you from my office with scrupulous exactness, by every vessel sailing to Havre or any other convenient port of France. On these I rely for giving you information of all the facts possessed by the public; and as to those not possessed by them, I think there has not been a single instance of my leaving you uninformed of any of them which related to the matters under your charge. In Freneau's paper of the 21st instant, you will see a small essay on population and emigration, which I think it would be well if the news-writers of Paris would translate and insert in their papers. The sentiments are too just not to make impression.

Some proceedings of the a.s.sembly of St. Domingo have lately taken place, which it is necessary for me to state to you exactly, that you may be able to do the same to M. de Montmorin. When the insurrection of their negroes a.s.sumed a very threatening appearance, the a.s.sembly sent a deputy here to ask a.s.sistance of military stores and provisions. He addressed himself to M. de Ternant, who (the President being then in Virginia, as I was also) applied to the Secretaries of the Treasury and War. They furnished one thousand stand of arms, other military stores, and placed forty thousand dollars in the treasury, subject to the order of M. de Ternant, to be laid out in provisions, or otherwise, as he should think best. He sent the arms and other military stores; but the want of provisions did not seem so instantaneous as to render it necessary, in his opinion, to send any at that time. Before the vessel arrived in St. Domingo, the a.s.sembly, further urged by the appearance of danger, sent two deputies more, with larger demands; viz. eight thousand fusils and bayonets, two thousand musquetoons, three thousand pistols, three thousand sabres, twenty-four thousand barrels of flour, four hundred thousand livres' worth of Indian meal, rice, pease, and hay, and a large quant.i.ty of plank, &c. to repair the buildings destroyed. They applied to M. de Ternant, and then with his consent to me; he and I having previously had a conversation on the subject. They proposed to me, first, that we should supply those wants from the money we owed France; or secondly, from the bills of exchange which they were authorized to draw on a particular fund in France; or thirdly, that we would guaranty their bills, in which case they could dispose of them to merchants, and buy the necessaries themselves. I convinced them the two latter alternatives were beyond the powers of the executive, and the first could only be done with the consent of the minister of France.

In the course of our conversation, I expressed to them our sincere attachment to France and all its dominions, and most especially to them who were our neighbors, and whose interests had some common points of union with ours, in matters of commerce; that we wished, therefore, to render them every service they needed, but that we could not do it in any way disagreeable to France; that they must be sensible, that M.

de Ternant might apprehend that jealousy would be excited by their addressing themselves directly to foreign powers, and, therefore, that a concert with him in their applications to us was essential. The subject of independence and their views towards it having been stated in the public papers, this led our conversation to it; and, I must say, they appeared as far from these views as any persons on earth. I expressed to them, freely, my opinion that such an object was neither desirable on their part, nor attainable; that as to ourselves, there was one case which would be peculiarly alarming to us, to wit, were there a danger of their falling under any other power; that we conceived it to be strongly our interest, that they should retain their connection with the mother country; that we had a common interest with them, in furnis.h.i.+ng them the necessaries of life in exchange for sugar and coffee for our own consumption, but that I thought we might rely on the justice of the mother country towards them, for their obtaining this privilege: and, on the whole, let them see that nothing was to be done, but with the consent of the minister of France.

I am convinced myself, that their views and their application to us are perfectly innocent; however, M. de Ternant, and still more, M. de la Forest, are jealous. The deputies, on the other hand, think that M. de Ternant is not sensible enough of their wants. They delivered me sealed letters to the President and to Congress. That to the President contained only a picture of their distresses, and application for relief. That to Congress, I know no otherwise than through the public papers. The Senate read it, and sent it to the Representatives, who read it, and have taken no other notice of it. The line of conduct I pursue, is, to persuade these gentlemen to be contented with such moderate supplies, from time to time, as will keep them from real distress, and to wait with patience for what would be a surplus, till M. de Ternant can receive instructions from France, which he has reason to expect within a few weeks; and I encourage the latter gentleman even to go beyond their absolute wants of the moment, so far as to keep them in good humor. He is accordingly proposing to lay out ten thousand dollars for them, for the present. It would be ridiculous in the present case, to talk about forms. There are situations when form must be dispensed with. A man attacked by a.s.sa.s.sins will call for help to those nearest him, and will not think himself bound to silence till a magistrate may come to his aid. It would be unwise in the highest degree, that the colonists should be disgusted with either France or us; for it might then be made to depend on the moderation of another power, whether what appears a chimera may not become a reality. I have thought it necessary to go thus fully into this transaction, and particularly as to the sentiments I have expressed to them, that you may be enabled to place our proceedings in their true light.

Our Indian expeditions have proved successful. As yet, however, they have not led to peace. Mr. Hammond has lately arrived here, as Minister Plenipotentiary from the court of London, and we propose to name one to that court in return. Congress will probably establish the ratio of representation by a bill now before them, at one representative for every thirty thousand inhabitants. Besides the newspapers, as usual, you will receive herewith the census lately taken, by towns and counties as well as by States.

I am, with great and sincere esteem, Dear Sir, your most obedient and most humble servant,

Th: Jefferson.

LETTER Lx.x.xV.--TO THE ATTORNEY GENERAL, December 5,1791

TO THE ATTORNEY GENERAL.

Philadelphia, December 5,1791.

Dear Sir,

The enclosed memorial from the British minister, on the case of Thomas Pagan, containing a complaint of injustice in the dispensations of law by the courts of Ma.s.sachusetts to a British subject, the President approves of my referring it to you, to report thereon your opinion of the proceedings, and whether any thing, and what, can or ought to be done by the government in consequence thereof.

I am, with great and sincere esteem, Dear Sir, your most obedient and most humble servant,

Th: Jefferson.

[_The Memorial of the British minister_.]

The undersigned, his Britannic Majesty's Minister Plenipotentiary to the United States of America, has the honor of laying before the Secretary of State, the following brief abstract of the case of Thomas Pagan, a subject of his Britannic Majesty, now confined in the prison of Boston, under an execution issued against him out of the Supreme Judicial Court of Ma.s.sachusetts Bay. To this abstract, the undersigned has taken the liberty of annexing some observations, which naturally arise out of the statement of the transaction, and which may perhaps tend to throw some small degree of light on the general merits of the case.

In the late war, Thomas Pagan was agent for, and part owner of a privateer called the Industry, which, on the 25th of March, 1783, off Cape Ann, captured a brigantine called the Thomas, belonging to Mr.

Stephen Hooper, of Newburyport. The brigantine and cargo were libelled in the Court of Vice-Admiralty in Nova Scotia, and that court ordered the prize to be restored. An appeal was however moved for by the captors, and regularly prosecuted in England before the Lords of Appeals for prize causes, who, in February, 1790, reversed the decree of the Vice-Admiralty Court of Nova Scotia, and condemned the brigantine and cargo as good and lawful prize.

In December, 1788, a judgment was obtained by Stephen Hooper in the Court of Common Pleas for the county of Ess.e.x, in Ma.s.sachusetts, against Thomas Pagan for three thousand five hundred pounds lawful money, for money had and received to the plaintiff's use. An appeal was brought thereon in May, 1789, to the Supreme Judicial Court of the Commonwealth of Ma.s.sachusetts, held at Ipswich, for the county of Ess.e.x, and on the 16th of June, 1789, a verdict was found for Mr. Hooper, and damages were a.s.sessed at three thousand and nine pounds two s.h.i.+llings and ten pence, which sum is 'for the vessel called the brigantine Thomas, her cargo, and every article found on board.' After this verdict, and before entering the judgment, Mr. Pagan moved for a new trial, suggesting that the verdict was against law; because the merits of the case originated in a question, whether a certain brigantine called the Thomas, with her cargo, taken on the high seas by a private s.h.i.+p of war called the Industry, was prize or no prize, and that the court had no authority to give judgment in a cause, where the point of a resulting or implied promise arose upon a question of this sort. The Supreme Judicial Court refused this motion for a new trial, because it appeared to the court, that, in order to a legal decision, it is not necessary to inquire whether this prize and her cargo were prize or no prize, and because the case did not, in their opinion, involve a question relative to any matter or thing necessarily consequent upon the capture thereof: it was therefore considered by the court, that Hooper should receive of Pagan three thousand and nine pounds two s.h.i.+llings and ten pence, lawful money, damages; and taxed costs, sixteen pounds two s.h.i.+llings and ten pence. From this judgment, Pagan claimed an appeal to the Supreme Judicial Court of the United States of America, for these reasons; that the judgment was given in an action brought by Hooper, who is, and at the time of commencing the action was, a citizen of the Commonwealth of Ma.s.sachusetts, one of the United States, against Pagan, who at the time when the action was commenced, was and ever since has been a subject of the King of Great Britain, residing in and inhabiting his province of New Brunswick. This claim of an appeal was not allowed, because it was considered by the court, that this court was the Supreme Judicial Court of the Commonwealth of Ma.s.sachusetts, from whose judgment there is no appeal; and further, because there does not exist any such court within the United States of America, as that to which Pagan has claimed an appeal from the judgment of this court. Thereupon, execution issued against Pagan on the 9th of October, 1789, and he has been confined in Boston prison ever since. It is to be observed, that in August, 1789, Mr. Pagan pet.i.tioned the Supreme Judicial Court of Ma.s.sachusetts for a new trial, and after hearing the arguments of counsel, a new trial was refused. On the 1st of January, 1791, his Britanic Majesty's Consul at Boston applied for redress on behalf of Mr. Pagan, to the Governor of Ma.s.sachusetts Bay, who, in his letter of the 28th of January, 1791, was pleased to recommend this matter to the serious attention of the Senate and House of Representatives of that State. On the 14th of February, 1791, the British Consul memorialized the Senate and House of Representatives on this subject. On the 22nd of February, a committee of both Houses reported a resolution, that the memorial of the Consul and message from the Governor with all the papers, be referred to the consideration of the justices of the Supreme Judicial Court, who were directed, as far as may be, to examine into and consider the circ.u.mstances of the case, and if they found that by the force and effect allowed by the law of nations to foreign admiralty jurisdictions, &c. Hooper ought not to have recovered judgment against Pagan, the court was authorized to grant a review of the action. On the 13th of June,'

1791, the British Consul again represented to the Senate and House of Representatives, that the justices of the Supreme Judicial Court had not been pleased to signify their decision on this subject, referred to them by the resolution of the 22nd of February. This representation was considered by a committee of the Senate and of the House of Representatives, who concluded that one of them should make inquiry of some of the judges to know their determination, and upon being informed that the judges intended to give their opinion, with their reasons, in writing, the committee would not proceed any further in the business.

On the 27th of June, 1791, Mr. Pagan's counsel moved the justices of the Supreme Judicial Court for their opinion in the case of Hooper and Pagan, referred to their consideration by the resolve of the General Court, founded on the British Consul's memorial. Chief Justice and Justice Dana being absent, Justice Paine delivered it as the unanimous opinion of the judges absent as well as present, that Pagan was not ent.i.tled to a new trial for any of the causes mentioned in the said resolve, and added, 'that the court intended to put their opinions upon paper and to file them in the cause: that the sickness of two of the court had hitherto prevented it, but that it would soon be done.'

It is somewhat remarkable, that the Supreme Judicial Court of Ma.s.sachusetts Bay should allege, that this case did not necessarily involve a question relative to prize or no prize, when the very jury to whom the court referred the decision of the case established the fact; their verdict was for three thousand and nine pounds two s.h.i.+llings and ten pence, damages, which sum is for the vessel called the brigantine Thomas, her cargo, and every thing found on board. Hence it is evident, that the case did involve a question of prize or no prize, and having received a formal decision by the only court competent to take cognizance thereof (viz. the High Court of Appeals for prize causes in England), every thing that at all related to the property in question or to the legality of the capture, was thereby finally determined. The legality of the capture being confirmed by the High Court of Appeals in England, cannot consistently with the principles of the law of nations be discussed in a foreign court of law; or at least, if a foreign court of common law is, by any local regulations, deemed competent to interfere in matters relating to captures, the decisions of admiralty courts or courts of appeal, should be received and taken as conclusive evidence of the legality or illegality of captures. By such decisions, property is either adjudged to the captors or restored to the owners; if adjudged to the captors, they obtain a permanent property in the captured goods acquired by the rights of war; and this principle originates in the wisdom of nations, and is calculated to prevent endless litigation.

The proceedings of the Supreme Judicial Court of Ma.s.sachusetts Bay are in direct violation of the rules and usages that have been universally practised among nations in the determination of the validity of captures, and of all collateral questions that may have reference thereto. The General Court of Ma.s.sachusetts Bay, among other things, kept this point in view, when they referred the case of Mr. Pagan to the consideration of the justices of the Supreme Judicial Court, and authorized the court to grant a review of the action, if it should be found that by the force and effect allowed by the law of nations to foreign admiralty jurisdictions, Mr. Hooper ought not to have recovered judgment against Mr. Pagan. But the Supreme Judicial Court have not only evaded this material consideration, upon which the whole question incontestably turns, but have a.s.sumed a fact in direct contradiction to the truth of the case, viz. that the case did not involve a question of prize or no prize. Moreover, they have denied Mr. Pagan the benefit of appeal to that court which is competent to decide on the force of treaties, and which court, by the const.i.tution of the United States, is declared to possess appellate jurisdiction both as to law and fact, in all cases of controversy between citizens of the United States and subjects of foreign countries, to which cla.s.s this case is peculiarly and strictly to be referred.

From the foregoing abstract of the case of Thomas Pagan, it appears that he is now detained in prison, in Boston, in consequence of a judgment given by a court which is not competent to decide upon his case, or which, if competent, refused to admit the only evidence that ought to have given jurisdiction, and that he is denied the means of appealing to the highest court of judicature known in these States, which exists in the very organization of the const.i.tution of the United States, and is declared to possess appellate jurisdiction in all cases of a nature similar to this.

For these reasons, the undersigned begs leave respectfully to submit the whole matter to the consideration of the Secretary of State, and to request him to take such measures as may appear to him the best adapted for the purpose of obtaining for the said Thomas Pagan, such speedy and effectual redress as his case may seem to require.

George Hammond,

Philadelphia, November 26,1791.

LETTER Lx.x.xVI.--TO MR. HAMMOND, December 5, 1791

TO MR. HAMMOND, _Minister Plenipotentiary of Great Britain_,

Philadelphia, December 5, 1791.