From Edmund Randolph
Philadelphia April 12th. 1793.
You will perceive from the two letters marked A and B, of which I enclose copies, that the subject of Mr. Pagan has been for some time in my view. The former of those letters being intended for you, and containing a summary of facts; I determined to shew it to Mr. Tilghman, who was Pagan’s Counsel, before it was sent to you, in order that he might correct any mistatement. This produced the latter letter from him to me; and I have thought it more adviseable to forward both of them to you, even in the unfinished state of my own, than to reduce the case into a form, which might be supposed to be less accurate.
As I do not discover an essential difference between Mr. Tilghman and myself, I shall not discuss any seeming variance, but proceed upon his ideas.
It is too obvious, to require a diffusive exposition, that the application for a writ of error was not only prudent, but a duty, in Pagan. To this Mr. Tilghman explicitly assents, when he says, that he was perfectly “satisfied of the prudence of applying for the writ of error, as Pagan could not complain of a defect of justice, until he had tried the writ of error and found that mode ineffectual.” This remark becomes the more important, as it manifests, that the process was not suggested, as an expedient for shifting any burthen from the Government. Indeed I may with truth add, that the proceedings, taken collectively, appeared to me to present a sufficient intimation of the main question, to serve as a ground of decision.
However, take the case under either aspect, as excluding, the consideration of the main question by an omission in the pleadings and record; or as exhibiting it fully to the cognizance of the Court.
It never was pretended, that a writ of error ought to have been granted, unless the matter was apparent on the record. Whose Office was it to make it thus apparent? Of the attorney who managed the pleadings. If therefore he has failed to do so, we may presume, that he considered the ground untenable, or was guilty of inattention. Either presumption would be fatal to a Citizen of the United States; and the condition of a foreigner cannot create a new measure in the administration of justice. It is moreover certain; that those, who have been consulted on Pagan’s behalf, as well as others, have seriously doubted, whether a cause, which has been pursued to the extent which his had reached before the commencement of our new Government, was susceptible of federal relief.
The last observation opens the inquiry, what remedy ought the Supreme Court of the United States to have administered, even if the question had been fairly before them? My opinion is, that the very merits are against Mr. Pagan. In America the construction of the Armistice has been almost universally to compute the places, within which different times were to prevail, by latitude only. Am I misinformed, that such an interpretation has been pressed by our Ministers, and not denied by those of London? A second mode has been adopted by describing a circle; and thereby comprehending longitude as well as latitude: Now let either rule be adopted; and the position of the Capture in this case will be adverse to Pagan’s pretensions.
But what can be exacted from our Government, after repeated trials, before various jurisdictions, none of which can be charged with any symptom of impropriety, and upon a subject, which to say no more, is at least equipoised? Nothing—And I appeal to the British reasoning on the Silesia loan as supporting this sentiment in the following passages. “The law of nations, founded upon justice, equity, convenience and the reason of the thing, and confirmed by long usage, do not allow of reprisals, except in case of violent injuries, directed and supported by the State and justice absolutely denied, in re minime dubiâ, by all the tribunals and afterwards by the prince.” “Where the Judges are left free, and give sentence according to their conscience, tho’ it should be erroneous, that would be no ground for reprisals. Upon doubtful questions different men think and judge differently; and all a friend can desire is, that justice should be as impartially administered to him, as it is to the subjects of that prince, in whose Courts the matter is tried.” Under such circumstances, a Citizen must acquiesce. So therefore must Pagan; against whom even the Court of Nova Scotia, within the dominions of his own sovereign, has once decided.
There are many smaller points, arising from the controversy, which might be relied on. But I pass them over, from a hope, that the observations, already made, will induce you to think with me, that Government is not bound to interpose farther in the behalf of Pagan. I have the honor, sir, to be with respect & esteem yr. mo. ob. serv.
RC (DNA: RG 60, Letters from and Opinions of the Attorneys General); in a clerk’s hand, with complimentary close and signature by Randolph; at foot of text in Randolph’s hand: “The Secretary of State.” PrC of Tr (DLC); in a clerk’s hand. Tr (Lb in PRO: FO 116/3). Tr (same, 5/1). Enclosure: Randolph to TJ, 15 Mch. 1793. Other enclosure printed below. Letter and enclosures enclosed in TJ to George Hammond, 18 Apr. 1793.
For a discussion of the case of the Loyalist Thomas Pagan, which hinged on the issue of whether or not one of his privateers had captured an American merchant ship in conformity with the terms of the January 1783 Anglo-American Armistice agreement, see George Hammond to TJ, 26 Nov. 1791, and note. On 18 Apr. 1793 TJ submitted Randolph’s letter, and the letter from Edward Tilghman to him printed below, to the President, who returned them the next day (Washington, Journal description begins Dorothy Twohig, ed., The Journal of the Proceedings of the President, 1793–1797, Charlottesville, 1981 description ends , 110, 114).
Silesia loan: In 1752 Frederick the Great refused to pay British bondholders the final installment of £45,000 on a loan that the Emperor Charles VI had originally contracted in 1735 on the security of his revenues from the Duchy of Silesia. The Prussian monarch, who had assumed the obligation to repay this loan in connection with his conquest of Silesia, took this step in retaliation for the British government’s failure to redress his grievances about British captures of Prussian ships and cargoes in the latter years of the War of the Austrian Succession. The British contended, in turn, that their admiralty courts had properly decided the cases in question according to prevailing norms of international law. This matter was finally resolved in 1756 when, as part of the celebrated reversal of alliances that heralded the coming of the Seven Years War, Frederick agreed to make the final payment on the loan in return for a payment of £20,000 by the British government in compensation for Prussian maritime claims (Ernest Satow, The Silesian Loan and Frederick the Great [Oxford, 1915], 1–46, 73–6, 179–99). The British reasoning on this dispute comes from a 1753 report of the law officers of the crown (same, 73, 82–3).