Edward Tilghman to Edmund Randolph
Philadelphia March 19th. 1793.
The first application to me on the part of Mr. Pagan was accompanied with the proceedings of the Supreme judicial Court of Massachusetts to the 3d. Tuesday of June 1789 inclusive; my opinion was requested, whether the Judgment then given was liable to an appeal to, or writ of error from, the Supreme Court of the United States. I was clearly of opinion, that there could with propriety be no such appeal made or writ of error granted. When my opinion was thus requested I knew not that application had been made on Pagan’s behalf to the Government of the United States. I received the first intimation of such application from yourself, when you informed me that there had been subsequent proceedings in Massachusetts of which you shortly afterwards furnished me with an abstract. Before the abstract came into my hands I wrote Messrs. Jos. Anthony & Son, that you was to let me have an abridgement of all the documents in your possession relative to the business, which might possibly induce me to think that a writ of error ought in strict legal propriety to be sued out; that from your verbal communication I 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. Accordingly application was made to a Judge—the writ was refused—I rather think, the Record, as it was exhibited to me, was laid before the Judge, with your abstract of the subsequent proceedings; of this however I am not positive. Be it as it may, you recommended a second application, and that it should be made while the Supreme Court was sitting, in order to give the Judge an opportunity to consult his Brethren on the subject. The writ was then awarded, but the Clerk of the Supreme Court having omitted the word “Judicial” in the stile of the Court of Massachusetts, no return was made to the writ. When the Clerk called the action on the first Tuesday of the last Supreme Court, Chief Justice Jay read a letter from the Chief Justice of Massachusetts, stating the misdirection of the writ, and adding in very respectful terms, that when a writ came properly directed, it should be taken into consideration. I then briefly mentioned that I should during the Session address the Court on the subject. On the second friday of the Supreme Court after you had closed your argument in Pepoon a Jenkins, I broke the business to the Court without making any specific motion, but the Court said that without a motion, they should consider nothing. I then replied that in the morning I should move for a writ of error (not an alias) but should wish to be heard against my own motion. One of the Justices expressed his surprise that I should argue against my own motion, and I answered I hoped to be able from the particular circumstances of the case to satisfy the Court of the propriety of my conduct; to this the same Judge replied in the very words you have used. At this time one of the Justices observed that he had been for granting the writ under the idea that a writ of error was of right, but that now he was of opinion, it ought to appear that the Court had Jurisdiction. On the next day I moved for a writ of error, having in my hand all the proceedings in Massachusetts, declaring that out of respect to what fell from one of the Justices, the day before, I would not ask to be heard against my motion, but would barely mention the two reasons which influenced Pagans Counsel in Massachusetts and here to entertain the opinion that there was no jurisdiction in the Supreme Court. To the best of my recollection, those reasons were mentioned. The Chief Justice ordered me to read the record—I did so—that is of the 3d. Tuesday of June 1789 and stated the subsequent proceedings briefly. The Chief Justice then asked me whether I said (perhaps the word was “thought”) there appeared any thing on the record to give the Supreme Court jurisdiction. My answer was that in my opinion there was nothing of the sort, that such was the opinion I at first entertained, and that I never had a doubt except from the Courts granting the writ. You being present addressed the Court and myself in substance as you have stated.
I think I mentioned to the Court the propriety of applying to them for the writ of error, and urged as a reason that on Pagan’s application to Government, it had been recommended to him that he should make such application—whether this was on Friday or Saturday I do not recollect.
One of the Judges declared he had ever been of opinion that the Court had not jurisdiction, but as other members of the Court thought the writ was grantable, he acquiesced. The writ was refused.
Thus Sir you have the history of Pagan a Hooper to the best of my recollection. Be pleased to accept my thanks for your favorable mention of Abilities and Integrity and believe me Your most obedt. hble Servt.
Tr (DNA: RG 60, Letters from and Opinions of the Attorneys General); at head of text: “(copy)” and “B”; at foot of text: “E. Randolph Esqr.” PrC of another Tr (DLC); in a clerk’s hand. Tr (Lb in PRO: FO 116/3). Enclosed in TJ to George Hammond, 18 Apr. 1793.