Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson Volume III Part 36

[The letter of the Attorney General, referred to in the preceding.]

TO THE SECRETARY OF STATE.

Philadelphia, April 12, 1793.

Sir,

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 show it to Mr. Tilghman, who was Pagan's counsel, before it was sent to you, in order that he might correct any misstatement. This produced the latter letter from him to me; and I have thought it more advisable 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 a.s.sents, 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 s.h.i.+fting 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 lat.i.tude 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 lat.i.tude: 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 pa.s.sage.

'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 dubid_, by all the tribunals, and afterwards by the prince.' Where the judges are left free, and give sentence according to their consciences, 'though 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 circ.u.mstances, a citizen must acquiesce. So therefore must Pagan; against whom even the court of Nova Scotia, within the dominions of his sovereign, has once decided.

There are many smaller points, arising from the controversy, which might be relied on. But I pa.s.s 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 and esteem, your most obedient servant,

Edmond Randolph.

LETTER CXLII.--TO MR. PINCKNEY, April 20, 1793

TO MR. PINCKNEY.

Philadelphia, April 20, 1793.

Dear Sir,

In a postscript to my letter of the 12th, I acknowledged the receipt of yours of January the 3rd; since which, those of January the 30th and February the 5th have been received by the William Penn.

With respect to our negotiation with Mr. Hammond, it is exactly in the state in which it was when you left America, not one single word having been received in reply to my general answer, of which you had a copy. He says, he waits for instructions, which he pretends to expect from packet to packet. But sometimes the ministers are all in the country, sometimes they are absorbed in negotiations nearer home, sometimes it is the hurry of impending war, or attention to other objects, the stock of which is inexhaustible, and can therefore never fail those who desire nothing but that things shall rest as they are. Perhaps, however, the present times may hasten justice.

We shall be glad to receive the a.s.sayer you hope to procure, as soon as possible, for we cannot get one in this country equal to the business in all its parts. With respect to Mr. Droz, we retain the same desire to engage him, but we are forced to require an immediate decision, as the officer employed in the interim, and who does tolerably well, will not continue much longer under an uncertainty of permanent employment.

I must therefore desire you to press Mr. Morris to bring Droz to an immediate determination; and we place the matter on this ground with him, that if he is not embarked by the first day of July next, we shall give a permanent commission to the present officer, and be free to receive no other. We are likely to be in very great distress for copper for the mint, and must therefore press your expediting what we desired you to order from Sweden.

You may, on every occasion, give a.s.surances which cannot go beyond the real desires of this country, to preserve a fair neutrality in the present war, on condition that the rights of neutral nations are respected in us, as they have been settled in modern times, either by the express declarations of the powers of Europe, or their adoption of them on particular occasions. From our treaties with France and Holland, and that of England and France, a very clear and simple line of conduct can be marked out for us, and I think we are not unreasonable in expecting that England shall recognise towards us the same principles which she has stipulated to recognise towards France, in a state of neutrality.

I have the honor to be, with great and sincere esteem, Dear Sir, your most obedient and most humble servant,

Th: Jefferson.

LETTER CXLIII.--CIRCULAR TO MORRIS, PINCKNEY, AND SHORT, April 26,1793

CIRCULAR TO MESSRS. MORRIS, PINCKNEY, AND SHORT.

Philadelphia, April 26,1793.

Sir,

The public papers giving us reason to believe that the war is becoming nearly general in Europe, and that it has already involved nations with which we are in daily habits of commerce and friends.h.i.+p, the President has thought it proper to issue the proclamation of which I enclose you a copy, in order to mark out to our citizens the line of conduct they are to pursue. That this intimation, however, might not work to their prejudice, by being produced against them as conclusive evidence of their knowledge of the existence of war and of the nations engaged in it, in any case where they might be drawn into courts of justice for acts done without that knowledge, it has been thought necessary to write to the representatives of the belligerent powers here, the letter of which a copy is also enclosed, reserving to our citizens those immunities to which they are ent.i.tled, till authentic information shall be given to our government by the parties at war, and be thus communicated, with due certainty, to our citizens. You will be pleased to present to the government where you reside this proceeding of the President, as a proof of the earnest desire of the United States to preserve peace and friends.h.i.+p with all the belligerent powers, and to express his expectation that they will in return extend a scrupulous and effectual protection to all our citizens, wheresoever they may need it, in pursuing their lawful and peaceable concerns with their subjects, or within their jurisdiction. You will, at the same time, a.s.sure them, that the most exact reciprocation of this benefit shall be practised by us towards their subjects, in the like cases.

I have the honor to be, with great esteem and respect. Sir, your most obedient and most humble servant,

Th: Jefferson.

LETTER CXLIV.--TO M. DE TERNANT, April 27,1793

TO M. DE TERNANT.

Philadelphia, April 27,1793.

Sir,

Your letter of the 13th instant, asking monies to answer the expenses and salaries of the consular offices of France, has been duly laid before the President, and his directions thereon taken.

I have in consequence to observe to you, that before the new government of France had time to attend to things on this side the Atlantic, and to provide a deposite of money for the purposes here, there appeared a degree of necessity that we, as the friends and debtors of that nation, should keep their affairs from suffering, by furnis.h.i.+ng money for urgent purposes. This obliged us to take on ourselves to judge of the purpose, because on the soundness of that, we were to depend for our justification. Hence we furnished monies for their colonies and their agents here, without express authority, judging from the importance and necessity of the case, that they would approve of our interference.

But this kind of necessity is now at an end: the government has established a deposite of money in the hands of their minister here, and we have nothing now to do but to furnish the money, which we are in the course of doing, without looking into the purposes to which it is to be applied. Their Minister is to be the judge of these, and to pay it to whom and for what he pleases.

If it be urged that they have appropriated all the money we are furnis.h.i.+ng, to other objects, and that you are not authorized to divert any of it to any other purpose, and therefore that you need a further sum, it may be answered, that it will not lessen the stretch of authority to add an unauthorized payment by us to an unauthorized application by you; and that it seems fitter that their Minister should exercise a discretion over their appropriations, standing as he does in a place of confidence, authority, and responsibility, than we who are strangers and unamenable to them. It is a respect we owe to their authority, to leave to those acting under that the transaction of their affairs, without an intermeddling on our part, which might justly appear officious.

In this light I hope you will view our conduct, and that the consular officers will be sensible, that in referring them to your care, under which the national authority has placed them, we do but con-form ourselves to that authority.

I have the honor to be, with sentiments of great respect and esteem, Sir, your most obedient and most humble servant,

Th: Jefferson.