James Madison Papers
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From James Madison to Edmund Randolph, 10 March 1784

To Edmund Randolph

Orange March 10th. 1784

My dear friend

Your favor of the 27th. Jany. was safely delivered to me about a fourtnight ago, and was recd. with the greater pleasure, as it promises a continuance of your friendly attention. I am sorry that my situation enables me to stipulate no other return than sincere & thankful acknowledgments. On my arrival here which happened early in Decr. I entered as soon as the necessary attentions to my friends admitted, on the course of reading which I have long meditated. Co: Litt: in consequence & a few others from the same shelf have been my chief society during the Winter.1 My progress, which in so short a period, could not have been great under the most favorable circumstances, has been much retarded by the want of some important books, and still more by that of some living oracle for occasional consultation. But what will be most noxious to my project, I am to incur the interruptions wch. will result from attendance in the legislature, if the suffrage of my County should destine me for that service, which I am made to expect will be the case.2 Among the circumstances which reconcile me to this destination, you need not be assured that the opportunity of being in your neighbourhood has its full influence.

I have perused with both pleasure and edification your observations on the demand made by the Executive of S. C. of a citizen of this State.3 If I were to hazard an opinion after yours, it would be that the respect due to the chief magistracy of a confederate State, enforced as it is by the articles of Union, requires an admission of the fact as it has been represented. If the representation be judged incomplete or ambiguous, explanations may certainly be called for; and if on a final view of the charge, Virginia should hold it to be not a casus fœderis, she will be at liberty to withold her citizen, (at least upon that ground) as S. C. will be to appeal to the Tribunal provided for all controversies among the States. Should the Law of S. C. happen to vary from the British Law, the most difficult point of discussion I apprehend will be, whether the terms “Treason &c.” are to be referred to those determinate offences so denominated in the latter Code, or to all those to which the policy of the several States may annex the same titles and penalties. Much may be urged I think both in favor of and agst. each of these expositions. The two first of those terms coupled with “breach of the peace” are used in the 5 art: of the Confederation, but in a way that does not clear the ambiguity. The truth perhaps in this as in many other instances, is, that if the Compilers of the text had severally declared their meanings, these would have been as diverse as the comments which will be made upon it.

Wa[i]ving the doctrine of the confederation, my present view of the subject would admit few exceptions to the propriety of surrendering fugitive offenders. My reasons are these: 1. By the express terms of the Union the Citizens of every State are naturalized within all the others, and being entitled to the same privileges, may with the more justice be Subjected to the same penalties.4 This circumstance materially distinguishes the Citizens of the U. S. from the subjects of other nations not so incorporated. 2. The analogy of the laws throughout the States, and particularly the uniformity of trial by Juries of the vicinage, seem to obviate the capital objections agst. removal to the State where the offence is charged. In the instance of contiguous States a removal of the party accused from one to the other must often be a less grievance, than what happens within the same State when the place of residence & the place where the offence is laid are at distant extremities. The transportation to G. B. seems to have been reprobated on very different grounds: it would have deprived the accused of the privilege of trial by jury of the vicinage as well as of the use of his witnesses, and have exposed him to trial in a place where he was not even alledged to have ever made himself obnoxious to it; not to mention the danger of unfairness arising from the circumstances which produced the regulation.5 3. Unless Citizens of one State transgressing within the pale of another be given up to be punished by the latter, they cannot be punished at all; and it seems to be a common interest of the States that a few hours or at most a few days should not be sufficient to gain a sanctuary for the authors of the numerous offences below “high misdemeanors.” In a word, experience will shew if I mistake not that the relative situation of the U. S. calls for a “Droit Public” much more minute than that comprised in the fœderal articles, and which presupposes much greater mutual confidence and amity among the Societies which are to obey it, than the law which has grown out of the transactions & intercourse of jealous & hostile Nations.6

Present my respectful compliments to your amiable lady & accept the sincerest wishes for your joint happinesses

Yr. affe. friend & Obt. Servt

J. Madison Jr.

P. S. By my brother who is charged with this I send Chattelleux’s work de la Felicetè public which you may perhaps find leisure to run through before May—also a notable work of one of the Representatives of the U. S. in Europe.7

RC (DLC). Addressed. Docketed by Randolph.

1An allusion to Sir Edward Coke’s The First Part Of The Institutes of the Lawes of England, Or, A Commentarie upon Littleton, a standard legal treatise for JM’s generation (Papers of Madison description begins William T. Hutchinson et al., eds., The Papers of James Madison (8 vols. to date; Chicago, 1962——). description ends , I, 108, 110 n. 4).

2The voters of Orange County on 22 Apr. chose JM and Charles Porter to be their representatives in the session of the Virginia House of Delegates, scheduled to convene 3 May (Vi: Certificate of Election, 26 Apr. 1784; JHDV description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in either 1827 or 1828 and often called the “Thomas W. White reprint.” description ends , May 1784, p. 3).

3For the alleged assault in South Carolina upon a public official of that state by George Hancock, a citizen of Virginia, for the provisions of Article IV of the Articles of Confederation to which JM referred near the opening of his paragraph, and for Randolph’s view of the issue, see Papers of Madison description begins William T. Hutchinson et al., eds., The Papers of James Madison (8 vols. to date; Chicago, 1962——). description ends , VII, 415–18 n. 2. JM agreed with Randolph that Governor Benjamin Harrison of Virginia should await further information from Governor Benjamin Guerard of South Carolina before deciding whether Hancock should be extradited to South Carolina. However, unlike Randolph, JM centered the matter at issue upon the meaning of “high misdemeanor” as used in the Articles of Confederation (casus fœderis) rather than upon the possible divergence between the laws of South Carolina and Virginia in defining that offense.

In his letter of 27 Jan., Randolph had posed a hypothetical case involving a British subject who broke a French law and then fled “to his own country.” Randolph also expressed doubt whether Harrison needed to extradite Hancock if his alleged offense, even though a “high misdemeanor” by the law of South Carolina, was not within that category as defined by the law of Virginia. On this point JM held that in extradition proceedings the governor of the state to which the offender had fled should accept upon proof the designation given to his offense by the governor of the state in which the alleged crime had been committed. If, however, Harrison refused to extradite Hancock, the matter would become a controversy between two sovereign states, within the purview of Article IX of the Articles of Confederation.

4In using the term “naturalized,” JM somewhat overstated the intent of Article IV of the Articles of Confederation. He referred to the passage: “The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 214–15). A Virginia statute, enacted on 26 June 1779 and entitled “An act declaring who shall be deemed citizens of this commonwealth,” included provisions for the extradition of “Fugitives from Justice, in other states” (JHDV description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in either 1827 or 1828 and often called the “Thomas W. White reprint.” description ends , May 1779, p. 70; Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , X, 129–30). The statute of Dec. 1783, which specifically repealed the one of 1779 and defined anew those persons who were or who were not eligible to become citizens of Virginia omitted any reference to extradition (JHDV description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in either 1827 or 1828 and often called the “Thomas W. White reprint.” description ends , Oct. 1783, pp. 69, 70, 81; Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , XI, 322–24).

5JM referred to the Transportation Act of May 1774, which empowered the royal governor or lieutenant governor, “with the Advice and Consent of the Council,” to have any person who was charged with “Murther, or other capital Crime” in resisting the revenue acts of Parliament removed from Massachusetts for trial in “some other of his Majesty’s Colonies, or in Great Britain” (Statutes at Large [1776 ed.], XII, 75–77).

6JM used “Droit Public” in contrast to “droit des gens” (international law).

7The brother was probably William Madison, then twenty-two years of age. JM sent François Jean, Chevalier de Chastellux, De la félicité publique, ou, Considérations sur le sort des hommes dans les différentes époques de l’histoire (2 vols.; Amsterdam, 1772; 2d ed.; 2 vols., corrected and augmented; Bouillon, 1776); Henry Laurens, Mr. Lauren’s True State of the Case. By Which His Candor to Mr. Edmund Jenings is Manifested, and the Tricks of Mr. Jenings are Detected (privately printed; London, 1783). This notable “work” was a rejoinder to a published attack on Laurens by Jenings in a pamphlet of “about forty pages of misrepresentation and falsehood” (Wharton, Revol. Dipl. Corr description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends ., VI, 694).

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