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The Writings of Thomas Jefferson, Vol. 3 (of 9)

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TO MESSRS. JOHNSON, STEWART AND CARROL

Philadelphia, November 21, 1791.

Gentlemen,—A Mr. Blodget has a scheme in contemplation for purchasing and building a whole street in the new city, and any one of them which you may think best. The magnitude of the proposition occasioned it to be little attended to in the beginning. However, great as it is, it is believed by good judges to be practicable. It may not be amiss, therefore, to be ready for it. The street most desirable to be built up at once, we suppose to be a broad one, (the avenue,) leading from the President's house to the Capitol. To prepare the squares adjoining to that, on both sides, in the first place, can do no harm; because, if Mr. Blodget's scheme does not take effect, still it is a part of a work done, which was to be done; if his scheme takes effect, you will be in readiness for him, which would be desirable. The President, therefore, desires me to suggest to you the beginning at once on that avenue, and when all the squares on that shall be laid off, they may go on laying off the rest of the squares between that and the river, from Georgetown to the eastern branch, according to an idea he has suggested to you in a letter not long since. This, however, is but a suggestion for the good of the undertaking, on which you will decide as you think proper. I have the honor to be, gentlemen, your most obedient, and most humble servant.

TO MR. ELLICOTT

Philadelphia, November 21, 1791.

Dear Sir,—It is excessively desirable that an extensive sale of lots in Washington should take place as soon as possible. It has been recommitted to the commissioners to have all the squares adjacent to the avenue from the President's house to the Capitol, on both sides, and from thence to the river, through the whole breadth of the ground between Rock Creek and Eastern Branch, first laid off; the object of the present is to ask your private opinion of the earliest time at which this portion of the work can be completed, which I will beg the favor of you to communicate to me by letter. In order that the sale may not be delayed by the engraving, it is hoped that by communicating what is executed from time to time, the engraver may nearly keep pace with you.

I am, with great esteem, dear Sir, your most obedient servant.

TO WILLIAM SHORT

Philadelphia, November 24, 1791.

Dear Sir,—My last to you was of August the 29th, acknowledging the receipt of your Nos. 67, 68, 69, 70, 71, and informing you I was about setting out to Virginia, and should not again write to you till my return. Only one vessel has sailed from hence to Havre since my return, and my notice of her departure was so short, that I could not avail myself of it. Your Nos. 72, 73, 74, 75, 78, came here during my absence, and 79, 80, were received October the 28th. The Nos. 76 and 77 seem to be missing.

You mention that Drost wishes the devices of our money to be sent to him, that he may engrave them there. This cannot be done, because not yet decided on. The devices will be fixed by the law which shall establish the mint. M. de Ternant tells me he has no instructions to propose to us the negotiation of a commercial treaty, and that he does not expect any. I wish it were possible to draw that negotiation to this place. In your letter of July the 24th, is the following paragraph. "It is published in the English newspapers, that war is inevitable between the United States and Spain, and that preparations are making for it on both sides. M. de Montmorin asked me how the business stood at present, and seemed somewhat surprised at my telling him, that I knew nothing later than what I had formerly mentioned to him. I have, in more than one instance, experienced the inconvenience of being without information. In this, it is disagreeable, as it may have the appearance with M. de Montmorin, of my having something to conceal from him, which not being the case, it would be wrong that he should be allowed to take up such an idea. I observed, that I did not suppose there was any new circumstance, as you had not informed me of it." Your observation was certainly just. It would be an Augean task for me to go through the London newspapers, and formally contradict all their lies, even those relating to America. On our side, there having been certainly no preparations for war against Spain; nor have I heard of any on their part, but in the London newspapers. As to the progress of the negotiation, I know nothing of it but from you; having never had a letter from Mr. Carmichael on the subject. Our best newspapers are sent you from my office with scrupulous exactness, by every vessel sailing to Havre or any other convenient port of France. On these I rely for giving you information of all the facts possessed by the public; and as to those not possessed by them, I think there has not been a single instance of my leaving you uninformed of any of them which related to the matters under your charge. In Freneau's paper of the 21st instant, you will see a small essay on population and emigration, which I think it would be well if the news writers of Paris would translate and insert in their papers. The sentiments are too just not to make impression.

Some proceedings of the assembly of St. Domingo have lately taken place, 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 mousquators, three thousand pistols, three thousand sabres, twenty-four thousand barrels of flour, four hundred thousand livres worth of Indian meal, rice, peas, 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 guarantee 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 interests, 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 might 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.

TO MR. HUMPHREYS

Philadelphia, November 29, 1791.

Dear Sir,—My last to you was of August 23, acknowledging the receipt of your Nos. 19, 21, and 22. Since that, I have received from 23 to 33 inclusive. In mine, I informed you I was about setting out for Virginia, and consequently should not write to you till my return. This opportunity, by Captain Wicks, is the first since my return.

The party which had gone, at the date of my last, against the Indians north of the Ohio, were commanded by General Wilkinson, and were as successful as the first, having killed and taken about eighty persons, burnt some towns, and lost, I believe, not a man. As yet, however, it has not produced peace. A very formidable insurrection of the negroes in French St. Domingo has taken place. From thirty to fifty thousand are said to be in arms. They have sent here for aids of military stores and provisions, which we furnish just as far as the French minister here approves. Mr. Hammond is arrived here as Minister Plenipotentiary from Great Britain, and we are about sending one to that court from hence. The census, particularly as to each part of every State, is now in the press; if done in time for this conveyance, it shall be forwarded. The Legislature have before them a bill for allowing one representative for every thirty thousand persons, which has passed the Representatives, and is now with the Senate. Some late inquiries into the state of our domestic manufactories give a very flattering result. Their extent is great and growing through all the States. Some manufactories on a large scale are under contemplation. As to the article of Etrennes inquired after in one of your letters, it was under consideration in the first instance, when it was submitted to the President, to decide on the articles of account which should be allowed the foreign ministers in addition to their salary; and this article was excluded, as everything was meant to be which was not in the particular enumeration I gave you. With respect to foreign newspapers, I receive those of Amsterdam, France, and London so regularly, and so early, that I will not trouble you for any of them; but I will thank you for those of Lisbon and Madrid, and in your letters to give me all the information you can of Spanish affairs, as I have never yet received but one letter from Mr. Carmichael, which you I believe brought from Madrid. You will receive with this a pamphlet by Mr. Coxe in answer to Lord Sheffield, Freneau and Fenn's papers. I am, with great and sincere esteem, dear Sir, your most obedient, and most humble servant.

TO DANIEL SMITH, ESQ

Philadelphia, November 29, 1791.

Sir,—I have to acknowledge the receipt of your favors of September 1 and October 4, together with the report of the Executive proceedings in the South-Western government from March 1 to July 26.

In answer to that part of yours of September 1 on the subject of a seal for the use of that government, I think it extremely proper and necessary, and that one should be provided at public expense.

The opposition made by Governor Blount and yourself to all attempts by citizens of the United States to settle within the Indian lines without authority from the General Government, is approved, and should be continued.

There being a prospect that Congress, who have now the Post office bill before them, will establish a post from Richmond to Stanton, and continue it thence towards the South-West government a good distance, if not nearly to it, our future correspondence will be more easy, quick, and certain. I am, with great esteem, Sir, your most obedient, and most humble servant.

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 anything, 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.

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 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 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 Britannic 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 22d 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 22d 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 everything 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,) everything 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 incontestibly 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.