From Edmund Randolph
Richmond Jany. 30. 1784.
Your friendly overture of a correspondence; altho’ written on the 31st. Ulto., did not reach me before the last evening. I pledge myself for furnishing all the intelligence, which the barrenness of this place can supply, fit for your attention.
But for a late occurrence, the executive would languish for employment. A Mr. Geo. Hancock, a citizen of this commonwealth, assaulted and beat a Mr. Jonas Beard, a justice of the peace and member of the legislature, of So. Carolina. About a fortnight ago, the governor of that state, stimulated by the advice of his council, and the application of the chief justice of the general sessions, demanded his body from our governor, under the fourth article of the confederation; charging the assault to be a high misdemeanor. In support of this demand, the affidavit of Mr. Beard was also transmitted, stating the attack to be extravagantly violent, and to have been made “during the sitting of the court of general sessions.” Nothing farther was said, to induce a belief, that the injury took place, while Mr. Beard was in the actual exercise of his office of a justice of the peace: nor could I collect from the affidavit or any other communication, what affinity the judiciary system of So. C. had created between Mr. Beard, as a justice and the court of general sessions. Much less could I discover, that legislative privilege was in any manner violated by the assault. I was called upon officially on this occasion. At first sight it seemed difficult to determine, how far our executive ought to be convinced of Hancock’s guilt before they could deliver him up. This scruple originated from the 76th. section of Vattel’s 2d. book. But the quotation of a practice in Switzerland which deprives the canton, within whose reach an offender may be, from the right of investigating the offence, appeared insufficient to forbid Virginia to exercise her faculties. For that usage is the effect of mere conventional law, and the general law of nations by analogy holds a different language when it permits a state, from which compensation for damages is required, to judge on the propriety of paying them, instead of swallowing any gross quantum, imposed on it. Besides, Virginia and So. C. are as distinct from each other as France and G. Britain, except in the instances, provided for by the confederation. And surely that compact does not destroy the right of previous inquiry.
The next consideration was the definition of a high misdemeanor. But neither in vulgar import, nor in the construction of british law, according to 4th. Black:, is an ordinary assault so stiled. I say an ordinary assault; because not a syllable of the accusation advances the offence to the rank of a high misdemeanor. For “the sitting of the court of general sessions” may mean the term, not the being on the bench: Mr. Beard, tho’ a justice of the peace might not be connected with that court: and the phlogiston of governor Guerard’s temper, excited as it has been, would have produced expressions, far more decided and inflammatory against Hancock, if this circumstance of aggravation had existed. This criticism on the looseness of the impeachment ought to prevail, when the question is concerning the banishment of a citizen for trial to a foreign tribunal.
If a law of So. C. should proclaim every assault to be a high misdemeanor in the sense of an unequivocal attack on the state, what is to be hereafter done, upon the representation of such a law? I answer with hesitation; but I lean to an opinion, that Hancock ought to be surrendered, howsoever absurd such a law would be. For different states may vary in their policy; and the fourth article of the confederation indulges every state with its own ideas of safety. If Hancock had been apprehended within the limits of So. C., upon the supposition of such a law, he would have suffered as for a high misdemeanor, without the possibility of a murmur from Virginia. Ought his flight to rescue him from the punishment?
But on the other hand if what a state shall choose to call a high misdemeanor, is to rule, there is another desideratum in the information transmitted. Let the real circumstances as they may be in future disclosed even constitute the assault on Mr. Beard a high misdemeanour in common and british interpretation; yet as So. C. may change the nature of the crime, a law should be shewn, manifesting, that its nature is not changed.
I thought it adviseable to point out the mode of arresting the perpetrator of a high misdemeanor in another state, lest the executive should hold sentiments, contrary to mine. In this I was embarrassed. The old act of citizenship repeats the passage of the confederation on this subject. The new act omits it, on purpose to avoid throwing a doubt on the validity of the other parts, not reenacted. But this omission did not hinder me from viewing the confederation, as a law, howsoever cloathed in the garb of a compact. My perplexity arose from not knowing, whether the executive should issue a warrant, or a common magistrate. For that this law must be executed, admitted not a doubt; nor yet could it be denied, that the granting of a power by law involves all incidents, necessary for its execution. I therefore recommended, that the executive should in these cases announce that the demand had been made in due form, and require the peace officers to take proper measures for arresting the culprit.
This is the short state of Mr. Hancock’s perils. You will perceive that I have paid no attention to another part of the fourth article, respecting full faith and credit &c. I passed it by, as relating to a matter of another sort.
By the severity of the winter our river has been blocked up for some time. The ice came down the other day in such a body as to destroy Overton’s mill to its very foundation, and transport five vessels, consisting of brigs and scows, which were lying at Rocket’s a considerable distance up the meadow. It was not originally a solid body: but at present appears to be so from the consolidation of several broken pieces drifted from above the falls. The river is again choaked to a more formidable degree: and no underwriter would venture to insure Mr. Mitchell’s new house, or Blakey’s mill. You know the situation of both.
Can you accommodate me with the Journal of congress for 1782 and 1783.
This letter being already extended beyond my first design, I shall only add, that I am, with the sincerest regard Dr Sir Yr. friend & serv.,
TJ’s letter written on the 31st. ulto. was recorded in SJL under date of 30 Dec. 1783, but has not been found. Whether Randolph changed his opinion that hancock ought to be surrendered or whether he was overruled by the Executive is not known, but the fact is that the Council came to the following decision: “After maturely considering the spirit of the Confederation, and the claim for protection which each individual has on that community of which he is a member—The Board are of Opinion that the act of Confederation does not require, and therefore that the Laws and fundamental principles of the Government of Virginia do not authorize the delivery of a citizen of the State to any power without the same in such cases as his Excellency the Governor of South Carolina has stated this to be. And the Governor is advised not to comply with the requisition for the delivery of the said George Hancock” (MS Va. Council Jour., Vi; 16 Feb. 1784). Article iv of the Articles of Confederation provided that any person guilty of or charged with “treason, felony, or other high misdemeanor” who should flee to another state should, on demand of the governor or executive power from which he fled, “be delivered up and removed to the State having jurisdiction of his offence.” The corresponding section of the Federal Constitution was altered to read “treason, felony, or other crime,” but in 1861 the United States Supreme Court decided that the word “crime” included every offense forbidden and made punishable by the laws of the state where the offense was committed (Corwin, The Constitution and What It Means Today, 1946, p. 133).