From George Hammond
Philadelphia 18th. February 1792
Since I had the honor of seeing you on Wednesday last, I have considered with attention the tenor of your verbal communication of that day in reply to the observations contained in my last letter on the subject of Mr. Pagan’s case. If I understood you rightly, I collected from your statement that Mr. Pagan’s Counsel has used a misnomer, in applying for the revision of his case to a Court which does not exist—that even if the designation of the Court had been correct, the mode of application by appeal was informal, a writ of error being the only legal method of removing the cause to the supreme federal Court—but that it was still competent to Mr. Pagan to apply for a writ of error, which it was in the power even of a single Judge to grant.
The anxiety, which I feel for this unfortunate Gentleman, whose confinement has now continued more than two years, would naturally prompt me to neglect no measures that could tend to procure him redress. I had it therefore in contemplation immediately to have written to Mr. Pagan, recommending him to apply without delay to some judge of the supreme federal Court for a writ of error.
I have however since thought it expedient to suspend this recommendation to Mr. Pagan, having learnt that the propriety of granting a writ of error is discretionary with the Judge, who may probably refuse to grant it, in consequence of the suit having been originally instituted in a State Court, antecedently to the establishment of the federal judiciary system; and that the writ can only be granted upon this indispensable condition, that the Party, in whose behalf the application is made, shall find sufficient security to prosecute his writ to effect, and to answer all damages and costs, if he fail to make good his plea; the Custody of the Person not being deemed under the law competent to enable a Judge of the Supreme Court to grant a writ of error.
If my information upon these points be well—founded, the prospect of obtaining redress for Mr. Pagan, by the prosecution of any legal measures, appears very remote indeed Since the suit was instituted in a State Court antecedently to the formation of the judiciary system and since it is scarcely presumable that a friendless stranger should as a preliminary step to the obtaining of a writ of error, be able to find, in a foreign country, persons who would become sureties for a sum so considerable as the amount awarded against Mr. Pagan.
This then is the situation of Mr. Pagan. A subject of the Crown of England is imprisoned upon a case, which originated in a question of Prize whereon the highest Court of appeal has determined in his favor; and being incompetent to the purpose of pursuing a writ of error, either because the jurisdiction of the federal Court does not reach the Cause, or because he cannot obtain Bail to prosecute the writ, he must languish in confinement unless the Government of the United States extends relief to him.
You will therefore, Sir, allow me to submit this matter again to your consideration, to which I am farther impelled by the hope that perhaps, by this time, the Attorney General may have reported to you his opinion on the whole of the proceedings.—I have the honor to be, with perfect respect, Sir, Your most obedient and most humble servant,
RC (DNA: RG 59, NL); in a clerk’s hand, except for signature; endorsed by TJ as received 20 Feb. 1792 and so recorded in SJL.
Hammond described TJ’s verbal communication regarding the case of Thomas Pagan and the British minister’s subsequent change of tactics respecting this matter in the following letter to the British foreign minister: “In an accidental conversation, which I had with Mr. Jefferson, some few days after the departure of the last packet, that Gentleman entered into an explanation of his letter to me, on the 28th January, on the subject of Mr. Pagan. His object, in writing that letter was, he informed me, to point out the legal mode, of removing the case to the federal court, which Mr. Pagan’s counsel, by demanding an appeal, instead of applying for a writ of error, had, through ignorance or inattention, mistaken. The Secretary of State added, that this Course was still open to Mr. Pagan, and that no inconvenience had arisen from my refusal to apply to the Court on his behalf, as any individual judge of the Supreme Court was competent to grant a writ of error” (Hammond to Grenville, 2 Mch. 1792, PRO: FO 4/14, DLC photostat). Pagan’s case is discussed more fully in note to Hammond to TJ, 26 Nov. 1791. Hammond’s last letter to TJ on this issue is that of 30 Jan. 1792.