To George Washington from Thomas Mifflin, 18 July 1791
From Thomas Mifflin
Philadelphia 18th July 1791
Sir
I think it proper to lay before you, copies of the various documents respecting an application, which I have recently made to the Governor of Virginia,1 requiring, agreeably to the provision contained in the second section of the fourth article of the Constitution of the United States,2 that he would take proper measures for apprehending Francis McGuire, Absalom Wells, and Baldwin Parsons, as fugitives from justice, in order that they might be delivered up to this State, having jurisdiction of their crime. The opinion which the Attorney General of Virginia has given upon this subject,3 as far as it respects the nature of the offence, is, I conceive, inaccurate, and could not have been given with a previous knowledge of the law of Pennsylvania on the subject: For, by an Act of Assembly, passed on the twenty ninth day of March, in the year one thousand seven hundred and eighty eight, the offence, charged in the several indictments, is rendered highly criminal, and the perpetrators, on conviction in any Court of Quarter Sessions (a Court of criminal jurisdiction exclusively) are not only condemned to forfeit the sum of one hundred pounds, but are subject, likewise, to be confined at hard labour, for any time not less than six Months, nor more than twelve Months. The fact charged, therefore, is a crime, made such by the laws of Pennsylvania; partaking of the nature of a felony, it is certainly included in the Constitutional description of “treason, felony, or other crime;” and, altho’ an action of trespass might be maintained in Virginia, by the injured individual to recover damages for his personal wrongs, yet, it is obvious, that no indictment, no trial, no conviction, no punishment, in the public name, could take place, according to the provisions of our Legislature, but under the authority of Pennsylvania, within her jurisdiction, and in the County where the offence was committed. It is equally certain, that the laws of the State, in which the act is committed, must furnish the rule to determine its criminality, and not the law of the State, in which the fugitive from Justice happens to be discovered.
I mean not, however, Sir, to enter into any farther controversy upon this point; it is sufficient to explain it: But as the Attorney General of Virginia has suggested another difficulty, with respect to the mode of arresting persons demanded as fugitives from Justice, I have thought the present, a proper, occasion to bring the subject into your view, that, by the interposition of the Fœderal Legislature (to whose consideration you may be pleased to submit it) such regulations may be established, as will, in future, obviate all doubt and embarrassment, upon a constitutional question, so delicate and important.4 I have the honor to be, with perfect respect, Sir, Your most obedient humble Servant
Thomas Mifflin
LS, DNA:PCC, item 69; copy, DNA: RG 46, Second Congress, 1791–1793, Records of Legislative Proceedings, President’s Messages; copy, Vi.
The controversy between Pennsylvania and Virginia that began with the murder by Virginians of peaceful Indians on Pennsylvania territory in March 1791 (see Henry Knox to GW, 31 Mar. 1791 and notes 1 and 2) was exacerbated by the case of the kidnapping of a free black man in Washington, Pa., in which two of the Indian murderers were also implicated. The complex dispute was soon brought to the attention of the federal government and eventually contributed to passage of the first Fugitive Slave Act in 1793. According to the memorial of 13 May to the governor of Pennsylvania from the Pennsylvania Society for Promoting the Abolition of Slavery, John, a free black citizen of Washington, Pa., was on 10 May 1788 assaulted, seized, and carried away by disguised persons intent on selling him into slavery. These men were later identified as Francis McGuire, Baldwin Parsons, and Absalom Wells, who fled into Virginia, where they sold John as a slave to Nicholas Casey, near Romney, Va., on the south branch of the Potomac (DNA:PCC, item 69). The Ohio County delegates to the Virginia assembly later explained to Virginia governor Beverley Randolph that a Mr. Davies of Maryland had settled in western Virginia near the Pennsylvania line in the 1770s with his slave John, and when the commissioners appointed to ascertain the Pennsylvania-Virginia border completed their work, Davies discovered that he was a citizen of Pennsylvania. In an attempt to avoid the ramifications of the Pennsylvania slave law of 1780 (see Tobias Lear to GW, 5 April and note 3, and GW to Lear, 12 April 1791), Davies hired John out to a Mr. Miller on the Virginia side of the line. After John escaped, seduced by the “Negroe club,” an arm of the Pennsylvania abolition society, according to the Ohio County delegates, Miller advertised for his return, and McGuire, Parsons, and Wells searched for him, found him in Washington, Pa., and brought him home (see Thomas Jefferson to GW, 20 Dec. and enclosure, DNA: RG 59, Miscellaneous Letters, and 5:396–98). Only Wells was taken into custody. McGuire, who with Capt. Samuel Brady and others had retaliated against the murder of a white family near Buffalo Creek by killing the alleged Indian perpetrators at Big Beaver Creek, escaped, and Parsons remained at large.
1. The various enclosures included copies of Pennsylvania governor Thomas Mifflin’s letter of 4 June to Virginia governor Randolph and the documents it covered (the memorial of 13 May from the Pennsylvania abolition society to Mifflin and copies of Washington County court clerk and prothonotary Edward Burd’s certificates of 24 May of the fugitives’ indictments) and Randolph’s reply of 8 July to Mifflin, enclosing the Virginia attorney general’s opinion on Mifflin’s demand (see n.3 below). Most of these enclosures (DNA:PCC, item 69) appear in 5:320–22, 326–28, 340–41, except Mifflin’s letter of 4 June to Randolph: “I am under the necessity of troubling your Excellency with authenticated copies of a representation which has been made to me, by the incorporated Society for the gradual abolition of Slavery &c., respecting the illegal and forcible seizure and carrying away from the County of Washington in this Commonwealth a certain free Negroe Man named John, with an intention To sell him as a slave in another State, and of transcripts from the records, of a Court of Oyer and Terminer, held in and for the said County of Washington, from which it appears that Indictments, have been duly found, charging this Violence to have been committed by Baldwin Parsons, Absalom Wells, and Francis McGuire who fled from Justice into the State of Virginia. Permit me therefore to request, that your Excellency will be pleased to take the proper measures, to cause the said Baldwin Parsons, Absalom Wells and Francis McGuire, to be delivered up to this State, having jurisdiction of their crime, agreably to the provisions, contained in the second Section of the fourth Article of the Constitution of the United States. And, I am persuaded that your Excellency’s regard for Justice, and humanity will prompt you to extend your interference on this occasion, as far as it may be expedient, to restore the Negroe to his freedom” (DNA:PCC, item 69).
2. “A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime” (U.S. Const., Art. IV, sec. 2).
3. On 14 June Governor Randolph laid Mifflin’s letter of 4 June before the Virginia state executive council, and the council advised submitting it to Virginia attorney general James Innes for his opinion ( 5:295–96). Innes’s report of 20 June is in DNA:PCC, item 69. When forwarding Innes’s opinion to Governor Mifflin on 8 July, Randolph wrote: “Your Excellency will readily perceive that the opinion of the first law officer of the State must preclude the Executive from taking any measures for apprehending and delivering the persons demanded by you. It is to be lamented that no means have been provided for carrying into effect so important an Article of the Constitution of the United States. This case will, however, we hope be the means of calling the Attention of the Legislature to a subject of such consequence” ( 5:340–41). The Pennsylvania governer acknowledged Randolph’s letter on 19 July, enclosing a copy of Mifflin’s letter of 18 July to GW as well as an extract of the 29 Mar. 1788 Pennsylvania act amending the act for the gradual abolition of slavery and noting that “I have submitted the subject to the consideration of the President of the United States, in hopes that by an interposition of the Federal Legislature, the difficulty with respect to the mode of arrest may for the future be removed” (ibid., 345).
4. After receiving this letter GW referred it and its enclosures to Edmund Randolph on 23 July.