To Thomas Jefferson from George Hammond, 26 November 1791
From George Hammond
Philadelphia November 26. 1791.
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 Massachusets 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 March 1783 off Cape Ann captured a Brigantine called the Thomas, belonging to Mr. Stephen Hooper of Newport. 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 Feby 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 Massachusets against Thomas Pagan for £3500 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 Massachusets, held at Ipswich for the county of Essex, and on the 16 June 1789 a verdict was found for Mr. Hooper, and damages were assessed at £3009.2.10, 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 enquire, 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 £3009.2.10. lawful money.—Damages, and taxed Costs £16.2.10.—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 Massachusets 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 appeal was not allowed, because it was considered by the Court, that this Court was the supreme judicial Court of the Commonwealth of Massachusets, from whose judgments 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.—Whereupon execution issued against Pagan on the 9th 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 Massachusets for a new trial, and after hearing the arguments of Counsel a new trial was refused.—1st Jany 1791 his Britannic Majesty’s Consul at Boston applied for redress on behalf of Mr. Pagan to the Governor of Massachusets Bay, who in his letter of the 28th Jany 1791 was pleased to recommend this matter to the serious attention of the Senate and House of Representatives of that state.—On the 14th. Feby 1791 the British Consul memorialized the Senate and House of Representatives on this subject. On the 22nd Feby 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 have recovered judgment against Pagan, the Court was authorized to grant a review of the Action.—10 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 Feby.—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 farther in the business.—27th 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 reasons 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 Massachusets should alledge 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 for £3009.2.10 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 Massachusets 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 Massachusets 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 was not competent to decide upon his case, or if competent, did not admit the only evidence that ought to have guided its decision, and that he is denied the means of appealing to the highest Court of Judicature known in these states, which Court, in the very organization of the constitution of the United States, is declared to possess appellate jurisdiction in all cases of a nature similar to the present.
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 to the purpose of obtaining for the said Thomas Pagan such speedy and effectual redress, as the merits of his case may seem to require.
Geo. Hammond.
RC (DNA: RG 59, NL); edges frayed, so that some words and parts of words are lost, which have been taken from the Tr in DLC; endorsed by TJ as received 29 Nov. 1791 but not recorded in SJL. Tr (same). Another Tr (same); at head of text: “(Copy)”; PrC of this Tr (DLC).
The case of Thomas Pagan and Stephen Hooper preoccupied TJ and Hammond more than any diplomatic issue save questions of neutral rights and the disputed provisions of the Treaty of Paris. A legacy of the American Revolution, the case was considerably more complicated than the British minister’s account of it suggests. Pagan and his brothers Robert and William were Loyalist merchants from Scotland who in 1780 began to engage in privateering from their base of operations in British-occupied Penobscot, Maine, to make up for the loss of over thirty merchant vessels to the Americans. In accordance with this strategy, one of their privateers, the Industry, captured the Thomas, an American brigantine owned by the Newburyport, Mass., merchant Stephen Hooper, off Cape Ann on 25 Mch. 1783.
Unbeknownst to Captain Zebedee Hammond of the Industry, however, the British government and the American peace commissioners in Paris had already agreed on terms for a cessation of hostilities that provided for the restoration of all “vessels and effects” captured by either side one month after 3 Feb. 1783 “from the Channel and the North seas as far as the Canary Islands inclusively, whether in the ocean or the Mediterranean” and two months after that date “from the said Canary Islands as far as the equinoctial line or equator” (Declaration for Suspension of Arms between Great Britain and United States, 20 Jan. 1783; George iii’s Proclamation on Cessation of Hostilities, 14 Feb. 1783; American Commissioners’ Proclamation on Cessation of Hostilities, 20 Feb. 1783, all in Francis Wharton, Diplomatic Correspondence of the American Revolution, vi, 223–4, 252, 257–8). Thus, after Captain Hammond filed a libel in the Vice-Admiralty Court at Halifax, Nova Scotia, contending that the Thomas and her cargo constituted a lawful prize under the terms of the Prohibitory Act, Hooper countered with a claim that the Thomas was an unlawful prize because she had been captured after 3 Mch.
The Vice-Admiralty Court agreed with Hooper and on 2 June 1783 ordered the vessel and cargo to be restored to him. Captain Hammond, who still maintained that the Thomas was a valid prize, immediately obtained an appeal to the Lords Commissioners of Prize Appeals in England, a standing committee of the Privy Council that was authorized to review the decisions of vice-admiralty courts in America. Refusing to return the captured brigantine and cargo to Hooper while the appeal proceeded, Robert Pagan agreed with a representative of the Massachusetts merchant to sell both at public auction, subject to the stipulation that “this sale of Vessel and cargo shall not in the least be construed to a determination of the property either in favor of the prosecution or the claimants.” Almost seven years later, in February 1790, the Lords Commissioners reversed the Nova Scotia court’s decision strictly on the basis of a procedural technicality—namely Hooper’s failure to respond to their summonses to appear before them and answer Captain Hammond’s appeal (Claims and Statements of Robert Pagan, 9 and 12 Mch. 1787, PRO: AO 12/11, f. 71–80; Industry v. Thomas, Nova Scotia Vice-Admiralty Court Records, New Court House, Boston, Court Files, Suffolk, Vol. 661; Decree of Lords Commissioners of Prize Appeals, 12 Feb. 1790, same; Harrison G. Otis to Massachusetts Supreme Judicial Court, n.d., same, Vol. 839; E. Alfred Jones, The Loyalists of Massachusetts: Their Memorials, Petitions and Claims [London, 1930], p. 227–8; the Editors gratefully acknowledge the assistance of the staff of the Documentary History of the Supreme Court project for making available photostats of the Massachusetts court record in the case of Pagan v. Hooper).
The legal triumph of the Pagan brothers in England was offset by setbacks in Massachusetts. After the British evacuation of Penobscot, the brothers, still loyal to the crown, moved to New Brunswick, where Robert and William held various public offices while Thomas confined himself to mercantile pursuits. During a business trip to Massachusetts in April 1788 Thomas Pagan was served a writ of attachment that Hooper had obtained against all three Pagan brothers, charging them with repeatedly violating a promise they allegedly made in 1783 to pay him “on demand” the sum of £3,500, the estimated value of the Thomas and her cargo. After failing to arbitrate the dispute, Hooper brought suit for trespass against the Pagan brothers in the Essex County Court of Common Pleas in September 1788, claiming that their failure to keep the aforementioned promise had cost him £3,500 in damages.
Thomas Pagan, the only one of the defendants to appear before this court, maintained that he and his brothers had “never promised in manner and form” as Hooper asserted, but the jury rejected this defense and awarded Hooper damages amounting to “£3374 lawful money.” Both litigants appealed to the Supreme Judicial Court of Massachusetts, which in June 1789 reaffirmed the lower court’s verdict while reducing the damages to which Hooper was entitled by £365 and specifying that they were for the Thomas as well as her cargo and every other article on board at the time of her capture. Pagan’s counsel then moved for a new trial on the ground that the Supreme Judicial Court had no authority to decide a case in which the real issue was whether the Thomas was a lawful prize. But the court rejected this motion after deciding that the issue of the legality of the Thomas’ capture was immaterial to the case. It then authorized Hooper to recover from Pagan the damages assessed by the jury, whereupon the latter’s counsel moved for an appeal to the Supreme Court of the United States because the case involved a dispute between citizens of two different nations. The Supreme Judicial Court rejected this motion as well, claiming that it was the court of last resort in Massachusetts and denying (apparently because Congress had not yet passed the Judiciary Act of 1789) that the court to which Pagan sought to appeal existed. Pagan unsuccessfully appealed for a new trial in August 1789 and was imprisoned in October of that year for non-payment of damages to Hooper.
The ruling of the Lords Commissioners for Prize Appeals in February 1790 that the Thomas was a lawful prize inspired Pagan to apply to the Supreme Judicial Court for a new trial in May 1790, but the court rejected this application. Next, after being asked by the state legislature to reconsider the case in light of an appeal for Pagan’s release from Thomas MacDonough, the British consul in Boston, the court ruled in June 1791 that Pagan was not entitled to a new trial (Writ of Attachment to Sheriff of Suffolk County, 11 Apr. 1788, New Court House, Boston, Court Files, Suffolk, Vol. 661; Decree of Essex Court of Common Pleas in Pagan v. Hooper, 30 Sep. 1788, same; Decree of Massachusetts Supreme Judicial Court in Pagan v. Hooper, 16 July 1789, same; Deposition of Theophilus Parsons in Pagan v. Hooper, [1789], same; Thomas Pagan to Massachusetts Supreme Judicial Court, 18 May 1790, same; Thomas MacDonough to Governor John Hancock, 1 Jan. 1791, and to the Massachusetts Legislature, 14 Feb. 1791, same, Vol. 839).
George Hammond decided to make Thomas Pagan’s case the subject of his first official communication to TJ for several reasons. He was under instructions from the king to support all British subjects “who may have any Suits or just pretensions depending” in the United States, he was genuinely moved by the spectacle of a subject of the crown languishing in an American prison, and he firmly believed that the Supreme Judicial Court of Massachusetts had violated the American Constitution by denying Pagan’s request for an appeal to the U.S. Supreme Court and had flouted international law by refusing to accept the Lords Commissioners’ decision legitimating the Thomas’ capture. At first Hammond simply asked TJ to take such steps as would obtain redress for Pagan; but by the end of 1791 he insisted, in response to direct instructions from Lord Grenville, that the American government do whatever was necessary to release Pagan from prison and to compensate him for any injuries resulting from his confinement (George iii’s instructions to Hammond, 2 Sep. 1791, , p. 3; Grenville to Hammond, 5 Oct. 1791, same, p. 19; Hammond to Grenville, 6 Dec. 1791, PRO: FO 4/11, f. 224; Hammond to TJ, 28 Dec. 1791).
TJ promptly responded to Hammond’s representation on Pagan’s behalf. He discussed the British minister’s letter with Washington, who instructed him to submit it to Attorney General Edmund Randolph to ascertain whether the facts alleged therein required any action by the federal government. After having TJ obtain a transcript of the Massachusetts court records, Randolph notified him on 27 Jan. 1792 that, although he was unable to form “a mature opinion” about Pagan’s case, he believed that Pagan’s best hope for legal redress was to apply to the Supreme Court for a writ of error under the terms of section 25 of the Judiciary Act of 1789. Among other things, that provision authorized the Supreme Court to reexamine, reverse, or affirm any decision by the highest court in a state that involved the validity of an international treaty to which the United States was a party. TJ immediately apprised Hammond of this advice, but the British minister declined to follow it; instead, he expressed determination “to await the decision of the general government.”
TJ met privately with Hammond on 15 Feb. 1792 and sought to convince him that the executive branch of government would not intervene on Pagan’s behalf before all judicial remedies had been exhausted and that a writ of error was the only legal method of bringing the case before the Supreme Court. But Hammond still hesitated because he doubted that a Supreme Court justice would grant a writ of error in a case that had originated in a state court before the establishment of the federal judiciary or that Pagan would be able to find anyone in Boston willing to act as security for his appeal. TJ finally overcame Hammond’s doubts by sending him an official legal opinion by Randolph that reemphasized the need for Pagan to apply for a writ of error and noted that “the usage of sovereigns is, not to interfere in the administration of justice, until the foreign subject, who complains, has gone with his case to the dernier resort.” TJ also personally assured the British minister that only if Pagan’s application were rejected would he be “at the end of the ordinary course of law, at which term alone it is usual for nations to take up the cause of an individual and to enquire whether their judges have refused him justice.” Convinced that TJ’s remarks amounted to a pledge that the U.S. government would intercede on Pagan’s behalf if he failed to obtain legal redress from the Supreme Court, Hammond at last instructed Pagan to apply for a writ of error (TJ to Randolph, 5 Dec. 1791; Randolph to TJ, 5 Dec. 1791, 27 Jan. 1792, 22 Feb. 1792; TJ to Christopher Gore, 13 Dec. 1791; Gore to TJ 1, 4 Jan. 1792; TJ to Hammond, 28 Jan., 25 Feb. 1792; Hammond to TJ, 30 Jan., 18 Feb. 1792; Hammond to Grenville, 2 Feb., 6 Mch. 1792, PRO: FO 4/14, DLC photostats. Randolph prepared a long summary of this case in May 1792, but there is no evidence that he ever sent it to TJ [“Rough to Secretary of State,” May 1792, in DNA: RG 76, British Spoiliations]).
Pagan’s application to the Supreme Court for a writ of error did not bring him the judicial relief he sought. Edward Tilghman, the noted Philadelphia attorney Pagan retained to represent him before the Supreme Court, at first believed there was nothing in the Massachusetts court record to justify even a request for such a writ. Tilghman reluctantly decided to apply for one only after Attorney General Randolph personally interceded with him and intimated that such an application would be highly desirable since Pagan’s case was under discussion by the Secretary of State and the British minister. Tilghman’s request for the writ, submitted to Justice James Wilson, was accompanied by only a partial transcript of the court record. Wilson initially refused to grant the writ, but agreed to reconsider the matter after Randolph intervened again and gave him a complete transcript. In August 1792, having consulted with his fellow justices, he issued a writ of error on Pagan’s behalf.
The Supreme Judicial Court, however, declined to obey the writ, since it was incorrectly directed to the “supreme court” of Massachusetts, though the court did assure Chief Justice John Jay of its willingness to take into consideration a properly corrected writ. The Supreme Court considered the Massachusetts court’s action on 16 Feb. 1793 and reached a decision that could not have been more displeasing to Pagan. Tilghman moved for the issuance of another writ of error, but when asked by Chief Justice Jay if “there appeared any thing on the record to give the Supreme Court jurisdiction” in Pagan’s case, he responded in the negative. Despite a plea by Randolph to consider the international ramifications of the legal dispute between Pagan and Hooper before deciding whether to take cognizance of it, the Supreme Court accepted Tilghman’s opinion about its lack of jurisdiction and unanimously rejected his motion for a new writ of error (Randolph to TJ, 30 June, 26 Aug. 1792, 13 Mch. 1793; TJ to Hammond, 2, 12 July 1792; Hammond to TJ 12, 13 July 1792; Randolph to TJ, 26 Aug. 1792, 13 Mch. 1793; Edward Tilghman to Randolph, 19 Mch. 1793, enclosed with Randolph to TJ, 12 Apr. 1793; Edwin C. Surrency, ed., “The Minutes of the Supreme Court of the United States 1789–1806,” American Journal of Legal History, v [1961], 181).
The Supreme Court’s action moved the case of Pagan and Hooper back into the realm of international diplomacy. Hammond asked TJ on 12 Mch. 1793 what steps the U.S. government planned to take now that Pagan had exhausted all available judicial remedies. TJ immediately requested Randolph to examine the case again to ascertain whether Pagan had been the victim of “that degree of gross and palpable injustice … by the national tribunals, which would render the nation itself responsible for their conduct.” Randolph reported to TJ that the Thomas had unquestionably been captured in violation of the Anglo-American agreement on the cessation of hostilities in North American waters and that the British government had no reason to complain of Pagan’s treatment by American courts. TJ agreed with this analysis and informed Hammond on 18 Apr. 1793 that the federal government planned to refrain from further involvement in the Pagan affair because it “does not appear then to be one of those cases of gross and palpable wrong ascribable only to the wickedness of the heart, and not to error of the head, in the judges who have decided on it, and founding a claim of national satisfaction.”
Hammond predictably rejected TJ’s assessment of the matter. After a delay of four months caused by the neutrality crisis of 1793, he sought once again to make Pagan’s release the subject of negotiation with TJ, arguing that under international law American courts were bound by the original ruling of the Lords Commissioners. TJ remained unmoved. Armed with yet another opinion from Randolph contending that Pagan had been treated fairly by the American judicial system, TJ notified Hammond on 13 Sep. 1793 that the U.S. government could do nothing more for Pagan because his case bore no marks of that “partiality and willful injustice … which render a nation responsible for the decisions of its Judges and which the United States would have been perfectly disposed to rectify.” This announcement ended the negotiations between TJ and Hammond over Pagan’s fate (TJ to Randolph, 13 Mch. 1793; Randolph to TJ 13 Mch., 12 Apr., 5 Sep. 1793; Hammond to TJ, 9 Apr. 1793, 19 Aug. 1793; TJ to Hammond, 9, 18 Apr., 13 Sep. 1793).
Embittered by his failure to persuade TJ of the justice of Pagan’s cause, Hammond submitted a long report on the case to Grenville in October 1793, accompanied by copies of his pertinent correspondence with TJ as well as Randolph’s legal opinions. He charged that “in the whole course of its proceedings, the American federal administration, either through a reluctance to involve itself in a dispute with the state of Massachusetts, or through some other less justifiable motive, has evinced no other disposition than that of procrastination, and of shifting from itself as long as it was possible the necessity of a decision.” Ironically, Hammond’s report made an unexpected impression on Grenville. After reviewing the course of the long legal dispute between Pagan and Hooper, Grenville instructed Hammond in January 1794 to disengage himself from the case until he received further orders from England, as “persons the best qualified to judge on the subject here entertain great doubts whether there is in fact any just ground of complaint against that decision.” But before Grenville could decide upon a new course of action, he learned early in the following month that Pagan had finally secured his release from prison through a settlement with Hooper, thereby ending an episode that had irritated Anglo-American relations for several years (Hammond to Grenville, 12 Oct. 1793, PRO: FO 5/1, DLC transcript; Grenville to Hammond, Jan. 1794, 6 Feb. 1794, , p. 51–2).