Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Volume 3

by Thomas Jefferson

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 any thing, 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,

Th: Jefferson.

[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 Newburyport. 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 Britanic 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 22nd 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 22nd 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.’