II
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.