From George Hammond
Philadelphia 19th August 1793
As the several points, which have been for the last four months under constant discussion between this government and myself, have involved in them questions of the highest national importance to our respective countries, and demanded an immediate investigation and decision; I have been unwilling to mix with them any other matters, not immediately connected with them, or of a distinct and subordinate nature. For this reason, I have deemed it expedient to suspend until this time the observations that I have always intended to submit to you, on your letter of the 18th of April on the case of Mr. Pagan, and on the communications from the Attorney General which it inclosed. I trust Sir that you will have esteemed this delay justified by the considerations above stated, and will not have construed it into a dereliction, either of the Arguments I have formerly alleged, or of the principles I have advanced, upon this subject.
It is not my intention to repeat the several circumstances I have stated in my different communications, in regard—to Mr. Pagan’s long and rigorous confinement—to the impropriety of the Judges of the supreme judicial court of Massachusets ever taking cognizance of this question—or to the conduct of those Judges in still persisting in their neglect to file their reasons in this cause, according to their solemn assurance of the 27th. of June 1791, which assurance induced the committee of the general court of Massachusets, that had been appointed to enquire into this business, to proceed no farther in it. These facts having been already sufficiently explained, I shall confine myself to the actual situation of the case, as presented in your letter, and in that of the Attorney General.
The observations of the Attorney General may be considered under two points of view—the mode of Mr. Pagan’s application to the Supreme federal Court—and the principles, which the Attorney General imagines would have influenced the decision of the Judges, had the writ of error been granted, and the merits of the question submitted to their deliberation.
In regard to the application itself to the Supreme federal Court, I must premise that that measure did not originate in Mr. Pagan or his advisers, but was adopted solely in conformity to a suggestion of yours and of the Attorney General, prescribing this preliminary course of proceeding, as necessary to be pursued, before it could be incumbent on the executive government of the United States to take the subject into its consideration. As to the manner in which the application was enforced—the abilities and integrity of the Lawyer employed by Mr. Pagan are too well known, to excite any suspicion of his neglecting any arguments, which could have promoted the cause of his client. The decision of the Court therefore is the sole circumstance to which it is proper to advert. This was conclusive and fatal to all Mr. Pagan’s expectations of obtaining judicial redress. Since the unanimous refusal of the Judges to grant the writ of error incontestibly evinced their sense of this case not being of a nature to be susceptible of relief by process of law.
With respect to the Attorney General’s opinion, that had the question been fairly brought before the Supreme federal Court “the very merits are against Mr. Pagan”—This opinion is founded solely on the difference of the construction of the armistice, by the government of Great Britain, and by that of the United States. It is not necessary to the present question to endeavour to ascertain which interpretation is the most accurate: But I must assert unequivocally that, in neither country, has a Court of Law any right to re-judge the validity of a prize legally condemned by the proper authority in the other. If a citizen of the United States imagines that he has just reason to complain of the principle that may have been established in the British Courts of Admiralty there are means of appeal open to him, or the whole question may fairly become a matter of negociation between the two sovereigns. But by these modes only, can the citizen or subject of either country seek redress. For if it once be admitted that the courts of law in the country, to which the property captured originally belonged, can take cognizance of the validity of its condemnation, by the proper tribunals of the country of the subjects making the capture, the system established for ages upon this point would be subverted, and such a source of litigation opened as it would be almost impossible to repress. In the case of the Silesia loan, the contrary position has been asserted with so much force and perspicuity, as to leave no doubt of its legality as well as of its reasonableness— “Prize or not prize must be determined by Courts of Admiralty, belonging to the power, whose subjects make the capture.” In the propriety of the reasoning contained in the passage, extracted by the Attorney General from the same performance—that “the law of nations founded upon justice, equity, convenience and the reason of the thing, and confirmed by long usage, does not allow of reprisals, except in case of violent injuries, directed and supported by the state, and justice absolutely denied, in re minime dubia, by all the tribunals, and afterwards by the prince”—I perfectly acquiesce as applicable to the case of Mr. Pagan: And I therefore venture to hope that the executive government of the United States (in this instance the Prince) will alter its determination, expressed, Sir, in your letter of the 18th. of April, and, as Mr. Pagan has been declared not susceptible of obtaining relief by process of law, will extend to him such redress as to its wisdom and justice shall appear adequate and satisfactory.
Before I conclude, I must intreat you, Sir, to favor me with an answer, as early as convenient: Since Mr. Pagan is naturally become more and more impatient to learn the final decision of this government, and since his health, which has already suffered considerably, may sustain still greater injury by the farther continuance of his imprisonment. I have the honor to be with sentiments of great respect Sir your most obedient humble Servant
RC (DNA: RG 59, NL); in a clerk’s hand, signed by Hammond; at foot of first page: “Mr Jefferson”; endorsed by TJ as received 19 Aug. 1793 and so recorded in SJL. FC (Lb in PRO: FO 116/3); misdated 15 Aug. 1793. Tr (same, 5/1); misdated 15 Aug. 1793. Tr (Lb in DNA: RG 59, NL).
For a discussion of the dispute between Thomas Pagan and Stephen Hooper, see note to Hammond to TJ, 26 Nov. 1791.