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Enclosure II: Considerations on a Convention with Spain, 22 March 1792

Considerations on a Convention with Spain

Heads of consideration on the establishment of Conventions
between the United States and their neighbors for the
mutual delivery of Fugitives from Justice.

  • Has a nation a right to punish a person who has not offended itself?
    • Writers on the law of nature agree that it has not.
      • That on the contrary, Exiles and Fugitives are to them as other strangers.
      • And have a right of residence, unless their presence would be noxious. e.g. infectious persons.
      • One writer extends the exception to atrocious criminals, too imminently dangerous to Society.
        • Namely to Pirates, Murderers, and Incendiaries. Vattel. L. V. § 233.
    • The punishment of Piracy, being provided for by our law, need not be so by Convention.
    • Murder. Agreed that this is one of the extreme crimes justifying a denial of habitation, arrest, and redelivery.
      • It should be carefully restrained by definition to Homicide of malice prepense, and not of the nature of Treason.
    • Incendiaries, or those guilty of Arson. This crime so rare, as not to call for extraordinary provision by a Convention.
    • The only Rightful subject then of arrest and delivery, for which we have Need, is Murder.
    • Ought we to wish to strain the natural right of arresting and re-delivering fugitives, to other cases?
  • The punishment of all real crimes is certainly desirable as a security to society. The security is greater in proportion as the chances of avoiding punishment are less.
    • But does the Fugitive from his Country avoid punishment?
      • He incurs Exile, not voluntary, but under a Moral necessity, as strong as Physical.
    • Exile, in some countries, has been the Highest punishment allowed by the laws.
      • To most minds it is next to death: to many beyond it.
      • The Fugitive indeed is not of the latter: he must estimate it somewhat less than death.
      • It may be said that to some, as Foreigners, it is no punishment.
      • Answ. these cases are few. Laws are to be made for the mass of cases.
    • The object of a Convention then in other cases would be that the Fugitive might not avoid the difference between Exile, and the legal punishment of the Case.
    • Now in what case would this Difference be so important as to overweigh even the single Inconvenience of multiplying compacts?
  • 1st. Treason. This, when real, merits the highest punishment.
    • But most Codes extend their definitions of treason to acts not really against one’s country.
      • They do not distinguish between acts against the government, and acts against the oppressions of the Government.
      • The latter are virtues: yet have furnished more victims to the Executioner than the former.
        • Because real Treasons are rare: Oppressions frequent.
      • The unsuccessful strugglers against Tyranny have been the chief martyrs of Treason laws in all countries.
    • Reformation of government with our neighbors, as much wanting now as Reformation of religion is or ever was anywhere.
      • We should not wish then to give up to the Executioner the Patriot who fails, and flies to us.
      • Treasons then, taking the simulated with the real, are sufficiently punished by Exile.
  • 2nd. Crimes against Property. The punishment, in most countries immensely disproportionate to the crime.
    • In England, and probably in Canada, to steal a Hare, is death the 1st: offence, to steal above the value of 12d. death the 2d. offence.
    • All Excess of punishment is a Crime. To remit a fugitive to Excessive punishment, is to be accessary to the crime.
      • Ought we to wish for the obligation, or the right to do it?
      • Better, on the whole, to consider these crimes as sufficiently punished by the Exile.
    • There is one crime, however, against property, pressed by its consequences into more particular notice, to wit:
    • Forgery, whether of coin, or paper; and whether Paper of public, or private obligation.
      • But the Fugitive for forgery, is punished by Exile and Confiscation of the property he leaves.
        • To which add by Convention a civil action against the property he carries or acquires to the amount of the special damage done by his forgery.
    • The carrying away of the property of another may also be reasonably made to found a civil action.
      • A Convention, then, may include Forgery and the carrying away the property of others under the head of
  • 3. Flight from Debts.
    • To remit the fugitive in this case, would be to remit him in every case.
      • For in the present state of things, it is next to impossible not to owe something.
    • But I see neither injustice nor inconvenience in permitting the fugitive to be sued in our courts.
      • The laws of some countries punishing the unfortunate debtor by perpetual imprisonment, he is right to liberate himself by flight, and it would be wrong to re-imprison him in the country to which he flies.
      • Let all process therefore be confined to his property.
    • Murder, not amounting to treason, being the only case in which the Fugitive is to be delivered,
      • On what Evidence, and by whom shall he be delivered?
      • In this country let any justice of the Supreme court of the United States, or their Judge of the district where the fugitive is found use the same proceedings as for a murder committed on the high seas: until the finding of the ‘True bill’ by the Grand jury; but
        • Evidence on oath from the country demanding him, though in writing and ex parte should have the same effect as if delivered orally at the examination.
      • A True bill being found by the Grand jury, let the officer in whose custody the fugitive is, deliver him to the person charged to demand and receive him.
    • In the British provinces adjoining us the same proceedings will do.
    • In the Spanish provinces a proceeding adapted to the course of their laws should be agreed on.

Th: Jefferson
Mar. 22. 1792

MS (DNA: RG 59, MLR); in clerk’s hand except for date and signature; text of “Heads of consideration” is on one side written as a continuous text filling the whole sheet; the proposed convention appears on the verso in two columns (the manner of arranging the text and the handwriting indicate the use of a new clerk, perhaps a temporary one); endorsed by Lear, incorrectly: “Report of the Secretary of State on the Subject of a Convention with the Spanish Provinces, on the delivery of fugitives from justice. 22d March 1792.” This is the text as submitted to Washington, and only the Tr in DNA: RG 59, SDC agrees with it, the other texts bearing the alteration indicated in note 1, below. PrC (DLC); with interlinear correction in clerk’s hand (see note 1). PrC of Tr (DLC: Short Papers). FC (DNA: RG 59, SDR). These last three states represent the final text after TJ had accommodated one of the two doubts expressed in Washington’s inquiry of 25 Mch. 1792 by making the alteration indicated in note 1, below.

TJ’s proposed convention with Spain for the rendition of fugitives from justice was a direct result of the importunities of Governor Charles Pinckney of South Carolina. Pinckney had suggested that he write directly to Governor Quesada of Florida, requesting the return of two fugitives who were under indictment in South Carolina, a step TJ successfully prevented (TJ to Washington, 7 Nov. 1791; Washington to Pinckney, 8 Nov. 1791, Fitzpatrick, Writings description begins John C. Fitzpatrick, ed., The Writings of George Washington, Washington, 1931-44, 39 vols. description ends , xxxi, 412–3). Although Pinckney agreed not to dispatch his letter to Quesada after reading TJ’s observations on it, he wrote again to the President urging the federal government to devise some arrangement with Spain to prevent the use of Florida as a place of refuge for fugitives from American justice (Pinckney to Washington, 8 Jan. 1792, DNA: RG 59, MLR). Pinckney’s impassioned plea for federal action convinced TJ of the desirability of a limited extradition agreement with Spain. Washington received the South Carolina governor’s letter on this subject about the middle of March 1792 and immediately referred it to TJ, who was already in the process of preparing instructions for William Carmichael and William Short aimed at resolving the most outstanding diplomatic differences between the United States and Spain (Washington to Pinckney, 17 Mch. 1792, Fitzpatrick, Writings description begins John C. Fitzpatrick, ed., The Writings of George Washington, Washington, 1931-44, 39 vols. description ends , xxxii, 5–6). The Secretary of State thereupon drew up the cautiously worded convention printed above. In consequence of his views on the incompatibility of republican and despotic legal systems, TJ carefully restricted the right of extradition to the sole case of premeditated murder “not of the nature of treason,” but in deference to Pinckney’s expressed concerns, he also provided for civil actions for damages against debtors and forgers in the courts of the country of refuge. There was no mention of the problem of fugitive slaves undoubtedly because of the agreement on their rendition concluded between Governor Quesada and James Seagrove the preceding August (see TJ to Governors of Georgia and South Carolina, 15 Dec. 1791, and enclosures). TJ submitted texts of the proposed convention to James Madison and to Washington. There is no record of Madison’s reaction, but Washington expressed reservations about the wisdom of subjecting forgers to civil rather than criminal action and TJ’s failure to limit the period of time for which they were liable to such action. TJ altered the text to make any limitation on civil actions against debtors and forgers a subject of negotiation with Spain and dispatched a copy of the revised convention to Pinckney at the beginning of April 1792. Pinckney approved of TJ’s handiwork, but even before the Secretary of State learned of this, he also sent another copy of the convention to William Carmichael and William Short and instructed them to take up the matter with the Spanish government (TJ to Madison, 16 Mch. 1792; Washington to TJ, 25 Mch. 1792; TJ to Pinckney, 1 Apr. 1792; TJ to Carmichael and Short, 24 Apr. 1792; Pinckney to TJ, 28 Apr. 1792).

In the end TJ’s proposed extradition convention with Spain came to naught. Spanish negotiators insisted that the convention include all malefactors as well as fugitive slaves, whereas their American counterparts wished to restrict it to premeditated murderers. Unable to reconcile these differences, the United States and Spain failed to reach an agreement. As a result, Jay’s Treaty was the first one signed by the United States with a foreign nation that made provision for the rendition of fugitives from justice (John B. Moore, A Treatise on Extradition and Interstate Rendition, 2 vols. [Boston, 1891], i, 84–92).

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