From Edmund Randolph
Philadelphia March 15th. 1793.
My communications to you in the case of Pagan against Hooper, combined with the facts, which have since occurred, will support me in saying, that as the law-officer of the United States, I have contributed every thing in my power to the relief of Pagan. You will recollect, that counsel was employed by him to move for a writ of error: that the first application was refused: that upon discovering, that only part of the record was laid before the judge, who did refuse, I recommended a second effort with a complete record, which I furnished, together with an abstract of it, as it was voluminous: and that thereupon a writ of error was granted; and issued.
At the last Session of the Supreme Court of the United States, the writ of error was not returned. Pagan’s counsel, holding the record in his hands, mentioned the subject to the court; upon which the Chief-justice of the United States produced a letter from the Chief-justice of Massachusetts, informing him, that the writ, having been directed to the Supreme Court of Massachusetts, instead of the Supreme judicial Court, it could not be obeyed by any Court in Massachusetts; as none bore that name. But he added, that with this correction, it should be taken into consideration. Pagan’s counsel was solicitous to leave the whole business in the hands of the Court without any specific motion, but the Court declared, that without a motion, they should consider nothing. Upon this Pagan’s counsel replied, that he should make a motion for an alias writ of error, but should argue against it. One of the Justices expressed his surprize, that a gentleman should argue against his own motion; and was answered by the Counsel, that he hoped to satisfy the Court, that under the extraordinary circumstances of the case, he was free to do so. To this the same Judge said, that the circumstances must be extraordinary indeed, which would warrant such a procedure.
On the next day, the record was exhibited by the Counsel, and the motion made. The Court asked him, whether the subject, which gave the Court jurisdiction, was apparent on the record. He averred, that it was not. I happened to be present, and reminded the Court and the Counsel, of the delicacy of the case; and particularly requested the latter to remember, that it had been before the government of the United States, that every means ought to be tried and that instead of asking for the writ as a new thing, he should move for it, as a thing of course, after one had been already granted. But he remarked, and the Court agreed, that the propriety of the writ was as much open now, as ever; and the renewal of it was unanimously rejected.
The latter part of this representation ought probably to have come from Pagan’s Counsel; but to avoid delay, I have drawn it, with a view of shewing it to him, before I forward it to you.
I pretend not to decide on the style, in which the motion ought to have been made; especially as I am no stranger to the abilities and integrity of Pagan’s Counsel. But I shall leave the proceeding to your own comments, and shall turn my attention to the following aspect of the case: whether
Upon the supposition, that the most perfect mode of application for the writ of error has been adopted, the United States are not discharged from responsibility by the judgment of the Court?
FC (DNA: RG 60, Letters from and Opinions of the Attorneys General); unsigned; at head of text: “A”; endorsed by Randolph: “The letter intended for the Secretary of State, as mentioned in my letter of April 12. 1793.” PrC of Tr (DLC); in a clerk’s hand. Tr (Lb in PRO: FO 116/3). Tr (same, 5/1). Enclosed in Randolph to TJ, 12 Apr. 1793, and TJ to George Hammond, 18 Apr. 1793.