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 assumed a very threatening appearance, the Assembly sent a
deputy here to ask assistance 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 Assembly, 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 quantity 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 furnishing 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 assassins 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 LXXXV.--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 Massachusetts 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 Massachusetts 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 Essex, in Massachusetts, 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 Massachusetts, held at Ipswich, for the county of Essex, and on the
16th of June, 1789, a verdict was found for Mr. Hooper, and damages were
assessed at three thousand and nine pounds two shillings 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 ship 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 shillings and ten pence, lawful
money, damages; and taxed costs, sixteen pounds two shillings 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
Massachusetts, 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 Massachusetts, 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 petitioned the Supreme Judicial Court of Massachusetts 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
Massachusetts 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
circumstances 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
entitled 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
Massachusetts 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 shillings 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 Massachusetts 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 Massachusetts 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 assumed 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 constitution 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 class 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 constitution 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 LXXXVI.--TO MR. HAMMOND, December 5, 1791
TO MR. HAMMOND, _Minister Plenipotentiary of Great Britain_,
Philadelphia, December 5, 1791.
Sir,
Your favor of November the 30th remains still unanswered, because the
clerks are employed in copying some documents on the subject of the
treaty of peace, which I wish to exhibit to you with the answer.
In the mean time, as to that part of your letter which respects matters
of commerce, the fear of misunderstanding it induces me to mention my
sense of it, and to ask if it be right. Where you are pleased to say,
that ‘you are authorized to communicate to this government his Majesty’s
readiness to enter into a negotiation for establishing that intercourse
(of commerce) upon principles of reciprocal benefit,’ I understand that
you are not furnished with any commission or express powers to arrange
a treaty with us, or to make any specific propositions on the subject of
commerce; but only to assure us that his Britannic Majesty is ready to
concur with us, in appointing persons, times, and places for commencing
such a negotiation. Be so good as to inform me if there be any
misapprehension in this, as some steps on our part may be necessary in
consequence of it.
1 have the honor to be, with the most perfect esteem, Sir, your most
obedient and most humble servant,
Th: Jefferson,
LETTER LXXXVII.--TO MR. HAMMOND, December 12, 1791
TO MR. HAMMOND.
Philadelphia, December 12, 1791.
Sir,
I take the liberty of enclosing you an extract of a letter from a
respectable character, giving information of a Mr. Bowles, lately come
from England into the Creek country, endeavoring to excite that nation
of Indians to war against the United States, and pretending to be
employed by the government of England. We have other testimony of these
his pretensions, and that he carries them much farther than is here
stated. We have too much confidence in the justice and wisdom of the
British government, to believe they can approve of the proceedings of
this incendiary and impostor, or countenance for a moment a person who
takes the liberty of using their name for such a purpose; and I make the
communication, merely that you may take that notice of the case which in
your opinion shall be proper.
I have the honor to be, with great and sincere esteem, Sir, your most
obedient and most humble servant,
Th: Jefferson.
LETTER LXXXVIII.--TO MR. HAMMOND, December 13, 1791
TO MR. HAMMOND.
Philadelphia, December 13, 1791.
Sir,
I have laid before the President of the United States the letters of
November the 30th and December the 6th, with which you honored me, and
in consequence thereof and particularly of that part of your letter of
December the 6th, where you say that you are fully authorized to
enter into a negotiation for the purpose of arranging the commercial
intercourse between the two countries, I have the honor to inform you,
that I am ready to receive a communication of your full powers for that
purpose, at any time you shall think proper, and to proceed immediately
to their object.
I have the honor to be, with sentiments of the most perfect esteem and
respect. Sir, your most obedient and most humble servant,
Th: Jefferson.
LETTER LXXXIX.--TO THE PRESIDENT, December 23, 1791
TO THE PRESIDENT.
Philadelphia, December 23, 1791.
Sir,
As the conditions of our commerce with the French and British dominions
are important, and a moment seems to be approaching when it may be
useful that both should be accurately understood, I have thrown a
representation of them into the form of a table, showing at one view how
the principal articles, interesting to our agriculture and navigation,
stand in the European and American dominions of these two powers. As to
so much of it as respects France, I have cited under every article the
law on which it depends; which laws, from 1784 downwards, are in my
possession.
Port-charges are so different, according to the size of the vessel and
the dexterity of the captain, that an examination of a greater number of
port-bills might, perhaps, produce a different result. I can only say,
that that expressed in the table is fairly drawn from such bills as I
could readily get access to, and that I have no reason to suppose it
varies much from the truth, nor on which side the variation would
lie. Still, I cannot make myself responsible for this article. The
authorities cited will vouch the rest.
I have the honor to be, with the most perfect respect and attachment,
Sir, your most obedient and most humble servant,
Th: Jefferson.
_Footing of the Commerce of the United States with France and England,
and with the French and English American Colonies._
[Illustration: page143]
[Illustration: page144]
LETTER XC.--TO THE PRESIDENT, January 4, 1792
TO THE PRESIDENT.
Philadelphia, January 4, 1792,
Sir,
Having been in conversation to-day with Monsieur Payan, one of the St.
Domingo deputies, I took occasion to inquire of him the footing on
which our commerce there stands at present, and particularly whether
the colonial _Arrêt_ of 1789, permitting a free importation of our
flour till 1793, was still in force. He answered, that that _Arrêt_ was
revoked in France on the clamors of the merchants there; and with a like
permission to carry flour to the three usual ports, and he thinks to
bring away coffee and sugar, was immediately renewed by the Governor.
Whether this has been regularly kept up by renewed _Arrêts_, during
the present trouble, he cannot say, but is sure that in practice it
has never been discontinued, and that not by contraband, but openly and
legally, as is understood. The public application to us to send flour
there, is a proof of it. Instead, therefore, of resting this permission
on a colonial _Arrêt_ till 1793, it should be rested on temporary
_Arrêts_ renewed from time to time, as heretofore. This correction
of the notes I took the liberty of laying before you with the table
containing a comparative view of our commerce with France and England, I
thought it my duty to make.
I have the honor to be, with the most perfect respect and attachment,
Sir, your most obedient and most humble servant,
Th: Jefferson.
LETTER XCI.--TO THOMAS PINCKNEY, January 17, 1792
TO THOMAS PINCKNEY.
Philadelphia, January 17, 1792.
Sir,
Your favors of November the 29th, 30th, and December the 1st, came duly
to hand, and gave sincere pleasure, by announcing your disposition to
accept the appointment to London. The nominations to Paris and the Hague
having been detained till yours could be made, they were all immediately
sent in to the Senate, to wit, yourself for London, Mr. G. Morris for
Paris, Mr. Short for the Hague. Some members of the Senate, apprehending
they had a right of determining on the expediency of foreign missions,
as well as on the persons named, took that occasion of bringing forward
the discussion of that question, by which the nominations were delayed
two or three weeks. I am happy to be able to assure you, that not
a single personal motive with respect to yourself entered into the
objections to these appointments. On the contrary, I believe that
your nomination gave general satisfaction. Your commission will be
immediately made out, but as the opportunities of conveyance at this
season are precarious, and you propose coming to this place, I think it
better to retain it.