William Bradford and Alexander Hamilton
to Edmund Randolph
Philada. Nov 4. [–December 9] 17941
The case of Mr. Green2 upon which you request my opinion appears to be, in substance, as follows.
Mr Green being a subject of his britannic Majesty, emigrated to America after the treaty of peace in 1783, and by his residence & taking the requisite oaths became a citizen of the United States. He afterwards entered into a contract with certain British Merchants established at Ostend: and on a failure on their part, brought an action against them in the Court of King’s Bench in England. On the trial of the cause the Judge directed the plaintiff to be nonsuited, being of opinion that such a contract, was unlawful between british subjects & holding the plaintiff to be such. Mr Green, conceiving himself to be aggrieved, solicits the interposition of the government to cause justice to be done to him.
I apprehend, sir, that these facts do not authorise any complaint from the United States, or formal demand on the Executive Authority of Great Britain. It seems to have grown into a rule “that a nation ought not to interfere in the Causes of its Citizens brought before foreign Tribunals excepting in the Case of a refusal of Justice, palpable & evident injustice or a manifest violation of rules and forms.”3 In the case stated the opinion of the Judge is founded on the standing & ancient Laws of Great Britain, which can be altered only by the Legislative power of the nation. The decision could not be otherwise: and when a suitor applies to foreign tribunals for justice he must of necessity submit to the rules by which these tribunals are governed. How far the difficulties which may arise from the British Government strictly enforcing the principle, “that a natural born subject cannot divest himself of his allegiance,”4 may deserve the attention of government in case any negociations for a treaty of Commerce should be commenced, is another question, upon which it is not proper I should offer any opinion.
In addition, it may be observed, that it is upon a definitive sentence alone, that a complaint of injustice can regularly be founded. The opinion of a judge at Nisi prius—a nonsuit voluntarily submitted to by the plntf & no motion for a new trial made—cannot with propriety be made the subject of discussion. If such a plaintiff be not satisfied with the justice of the opinion it is his duty to put the cause in such a situation that its merits may be examined, in the court of the last resort.
There are other reasons which oppose themselves to Mr Green’s request: but having had the honor of confering with you on this subject a few days ago I forbear enlarging upon it at present.
I have the honor to be with great Esteem sir Your most Obed. Serv.
I agree in opinion with the Attorney General that the case stated is not a proper one for a complaint by this Government or a formal demand on that of Great Britain.5
The Secretary of State
LS, in the handwriting of William Bradford, RG 59, Letters and Opinions of the Attorney General, National Archives.
1. Bradford wrote this letter on November 4. As indicated in note 5 below, H did not concur with Bradford’s opinion until December 9, 1794.
On July 30, 1794, Randolph wrote to Green: “When I mentioned to the Attorney General of the United States my anxiety to obtain his opinion in your case, he informed me, that you wished him to withhold it, until you should again converse with him. The matter will therefore rest in this shape…” (LC, RG 59, Domestic Letters of the Department of State, Vol. 7, June 27–November 30, 1794, National Archives). On November 1, 1794, Green wrote to Randolph “to press to your consideration the circumstance of my particular situation, by which a dereliction of my Rights as a Citizen, and an acquiescance in foreign Sequestration, must operate in the manner of a Judgment of our Courts upon my property, and person at home. I have nothing to expect from the complaisance of the British Government.
“When you take the decision of the President of the United States on my case, I trust you will press this great point with energy, being … anxious for the speediest communication of the issue.” (ALS, RG 59, Miscellaneous Letters, 1790–1799, National Archives.)
3. This is taken from Vattel, who wrote: “The prince ought not then to interfere in the causes of his subjects in foreign countries, and to grant them his protection, excepting in the cases of a refusal of justice, palpable and evident injustice, a manifest violation of rules and forms…” (Emeric de Vattel, Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns [London, 1759–1760], II, 148).
4. This is based on the following decision in the case of Æneas Macdonald in 1746–1747: “It is not in the power of any private subject to shake off his allegiance, and to transfer it to a foreign prince. Nor is it in the power of any foreign prince by naturalizing or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the crown” (Sir Michael Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry; and of Other Crown Cases: To Which Are Added Discourses Upon a Few Branches of the Crown Law. By Sir Michael Foster, Knt. Sometime One of the Judges of the Court of King’s Bench, and Recorder of the City of Bristol. The Second Edition, Corrected. With Additional Notes and References by his Nephew, Michael Dodson, Esq; of the Middle Temple [Dublin: James Moore, College-Green, 1791]).
5. This sentence is in H’s handwriting.
On December 11, 1794, Randolph wrote to Green: The importance of your Case induced me to submit to the Secretaries of the Treasury and of War the Opinion, which the Attorney General of the United States, had given concerning it. The day before yesterday they signified their concurrence, and my own judgment going to the same conclusion, I have the honor of inclosing you a copy of it.
“To shew you, however, that I am duly impressed with the hardship of your situation, I have determined to write to Mr. [John] Jay and Mr. [Thomas] Pinckney the subjoined letter, and I beg you to be persuaded that if I do not come up to all, that you wish, it is because our Government ought not to be committed upon doubtful grounds.” (LC, RG 59, Domestic Letters of the Department of State, Vol. 8, December 6, 1794–October 12, 1795, National Archives.)
On the same day Randolph wrote to Jay: “… it is the wish of our Government, that the heavy calamity which is caused to Mr. Green by the rigor of positive law, should receive every possible relief, consistent with the protection, which we can and ought to give to him. Morality and justice are on his side. I have therefore to request you to take his subject into consideration, and to find an occasion for bringing it into the view of the British Ministry in such a manner as may best promise success; but without committing our Government by a formal demand …” (LC, RG 59, Diplomatic and Consular Instructions of the Department of State, 1791–1801, Vol. 2, August 22, 1793–June 1, 1795, National Archives).