James Madison Papers

To James Madison from Edmund Randolph, 27 January 1784

From Edmund Randolph

RC (LC: Madison Papers). Cover missing. Docketed by JM, “Randolph. Edmd. Jany. 27. 1784.”

Richmond Jany. 27. 1784.

My dear friend

Altho’ your return from congress has brought you nearer in point of distance, it has fixed a wider gulph between us in point of communication by letter. But I do not mean to suffer the danger of miscarrage, to which even a private opportunity is exposed, whensoever any thing, worthy of notice, occurs.1 At present therefore I break in upon your retirement with the inclosed rough draught. I have not leisure to transcribe it with the alterations, which I made in the copy sent to the governor. Your friendship will excuse the inaccuracies, and you will collect the substance of my ideas, although they abound.2

Believe me to be my dear Madison Yr. affte friend

E. R.

1JM to Jefferson, 10 Dec. 1783, n. 1; Jefferson to JM, 1 Jan. 1784, n. 1. Not until the 1790’s, when a post office was established at Orange Court House, could JM send a letter from, or receive one at, Montpelier unless it was entrusted to a private courier or transmitted through a more distant post office, such as the one at Fredericksburg (Jedidiah Morse, comp., The American Gazetteer … [2d ed., cor.; London, 1798], p. 618).

2On 20 July 1780 George Hancock, Jr. (1754–1820), the son of wealthy George Hancock, Sr. (d. 1782), of South Carolina, was admitted to practice in the county court of Powhatan County, Va., of which county he subsequently became a captain of militia. In September 1781 he married in Botetourt County; was admitted five months later to practice law in its county court; and eventually resided at Santillane, an estate near Fincastle in that county (Powhatan County Court Records, Order Book 1, 1777–1784, p. 60, microfilm in Va. State Library; Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (18 vols. to date; Princeton, N.J., 1950——). description ends , VI, 188; Robert Douthat Stoner, A Seed-Bed of the Republic: A Study of the Pioneers in the Upper [Southern] Valley of Virginia [Roanoke, Va., 1962], pp. 294–96, 407–8).

In the meantime George Hancock, Sr., pleading “the turbulence of the times” in South Carolina, had been permitted to bring sixty-three slaves to Virginia and register them in Henry County (Cal. of Va. State Papers description begins William P. Palmer et al., eds., Calendar of Virginia State Papers and Other Manuscripts (11 vols.; Richmond, 1875–93). description ends , III, 30, 142). At the time of his death he was a resident of Bedford County (Bedford County Court Records, Will Book 1, 1763–1787, pp. 434–35; will printed in Joida Whitten, comp. and ed., Abstracts of Bedford County, Virginia, Wills, Inventories and Accounts, 1754–1787 [Dallas, Tex., 1968], p. 136). As his father’s executor, the son went to the Camden district of South Carolina, where the will was probated. While there on 22 October 1783, he with “fist and switch” violently assaulted Jonas Beard, a planter living along the Saluda River, a colonel of militia, a justice of the peace, a judge of the court of general sessions, and a member of the state legislature (A[lexander] S. Salley, Jr., The History of Orangeburg County, South Carolina, from Its First Settlement to the Close of the Revolutionary War [Orangeburg, 1898], pp. 249, 257, 258, 265, 266–69, 276, 278, 293, 346, 469).

In a letter of 16 December 1783 Governor Benjamin Guerard of South Carolina requested Harrison to extradite Hancock for trial in that state, justifying his request by enclosing Beard’s affidavit and, more importantly, by citing the paragraph of Article IV of the Articles of Confederation, providing that “If any Person guilty of, or charged with treason, felony, or other high misdemeanor in any state, shall flee from Justice, and be found in any of the united states, he shall, upon demand of the Governor or executive power, of the state from which he fled, be delivered up and removed to the state having jurisdiction of his offence” (Cal. of Va. State Papers description begins William P. Palmer et al., eds., Calendar of Virginia State Papers and Other Manuscripts (11 vols.; Richmond, 1875–93). description ends , III, 549; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 215). Upon receiving Guerard’s “extraordinary letter,” Harrison on 17 January 1784 sought the advice of Randolph, the attorney general of Virginia. Randolph replied four days later (Executive Letter Book, 1783–1786, p. 262, MS in Va. State Library; Cal. of Va. State Papers description begins William P. Palmer et al., eds., Calendar of Virginia State Papers and Other Manuscripts (11 vols.; Richmond, 1875–93). description ends , III, 556–57).

He enclosed the ten-page, rough draft of that answer in the present letter. The text of the draft contains many deletions and interlineations, occasional abbreviations, and a marginal insert on the eighth page. The Library of Congress may have acquired this document, and perhaps Randolph’s brief letter also, from Stan. V. Henkels, a manuscript dealer of Philadelphia (Henkels Catalogue No. 694 [1892]). Jefferson, to whom Randolph and JM wrote separately about the Hancock case, seems to have let it rest without any comments of his own (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (18 vols. to date; Princeton, N.J., 1950——). description ends , VI, 513–15; VII, 38–39).

Randolph viewed the issue as one “of delicacy and danger.” An unqualified refusal of Guerard’s request “may produce a rupture of federal harmony,” but a complete fulfillment of it “will furnish cause for the most bitter complaint against that authority, which shall transport a citizen to a foreign tribunal, for trial on a penal accusation.” Conscious of this dilemma, Randolph sought to find a solution which would avoid either of those extremes. Assuming that each of the states of the United States was sovereign, he believed that their legal relationships fell within the domain of international law. Upon consulting Emmerich de Vattel, The Law of Nations; or, Principles of the Law of Nature, he found the author’s discussion limited to comity practices among the Swiss cantons. None of them, in Randolph’s opinion, had been derived with sufficient certainty from international law to furnish a “precedent” for Harrison’s guidance.

Randolph was also impressed by the extent to which American legal terminology, procedures, and safeguards of an accused person’s rights reflected British models. He emphasized that the term “high misdemeanor,” being linked with “treason” and “felony” in the Articles of Confederation, must mean a crime comparable in gravity with those most reprehensible offenses. In support of this judgment, he cited Sir William Blackstone’s Commentaries on the Laws of England to the effect that a “high misdemeanor” was confined to “an unequivocal attack against the state.” Neither Guerard in his letter nor Beard in his affidavit provided conclusive evidence that Hancock’s assault had been more than an “ordinary” one, or had been aggravated in seriousness by being made when Beard was acting in his official capacity as a judge of the “court of general sessions.” Randolph therefore held that, in the light of the facts as then known, Harrison justifiably should consider the extradition provision of the Articles of Confederation to be inapplicable.

Arguing further from the same general premise, Randolph asked rhetorically: “if a subject of G. B. commit an offence in F.[,] flee to his own country, and be demanded by the court of Versailles, would G. B. be so perfidious to the peace of her people, as to surrender him without well-searching into his crime, when the meanest of these cannot be imprisoned for a violation of municipal law, before his guilt is fully-weighed?” Answering his own question, Randolph asserted: “France must submit to steps of preparatory inquiry, since it would have taken place in common cases, not affecting foreign nations.” “I am aware,” he concluded, “that I am here comparing two members of a grand perpetual confederacy, with two nations, disunited except by treaties which may have terminated hostilities. But So. Carolina and Virginia are also disunited from each other in those instances for which the confederation has not provided, expressly or virtually.”

The “Full faith and credit” paragraph in Article IV of the Articles of Confederation was one of those legal ties designed “expressly” to unite the states, but it was not in point in the present instance. This was so, Randolph argued, because Guerard’s charge, although meriting Harrison’s “respect,” was neither an equivalent of an attested record of a South Carolina court nor equal in “supremacy” to the “public acts” of Virginia. In this connection, however, Randolph added that the extradition provision of the Articles of Confederation assumed that each state had the sovereign power to decide what act committed within its own borders was “criminal.” Hence, if South Carolina forwarded authenticated copies of its law defining a “high misdemeanor,” and of the evidence proving Hancock guilty of that offense, Harrison “perhaps” should then return him to South Carolina, even though the nature of his assault did not constitute a “high misdemeanor” under the law of Virginia.

On the above grounds, Randolph advised Harrison not to extradite Hancock. If, however, the governor decided otherwise, he still would not be able to ascertain “the mode of delivery” from a perusal of the Articles of Confederation or any statute of Virginia. At the close of his letter, Randolph recommended that the “mode” should be a notification to “a justice of the peace that the demand” had been “properly made” by South Carolina and he must cause Hancock “to be apprehended.”

On 16 February 1784 the Virginia Council of State, including John Marshall, a future Chief Justice of the United States, agreed with Randolph’s conclusion by advising Harrison “not to comply with the requisition for the delivery of the said George Hancock.” On the same day, observing that delay in answering had been due to bad weather, which had prevented the postrider from going to Charleston, Harrison wrote to Guerard. The refusal of Virginia to extradite Hancock, he explained, had arisen from “no opinion hastily taken up, or from a desire to enter into altercation,” but from “maturest consideration and attention to the confederation” on the one hand, and to the rights of every citizen “who is not pointedly and indisputably charged with such a crime as is evidently within the meaning and literal construction” of the Articles of Confederation on the other. After observing that the evidence offered of Hancock’s guilt was far from sufficient “in a criminal case” to warrant extradition, Harrison asked Guerard to forward more positive proof. As the matter stood, the charge was “nothing more than a common assault,” and the only grounds given for extraditing was Beard’s eminence. Did that fact render the assault any different from one made on a man of less distinction? Harrison answered his own question: not unless Beard had been assaulted “whilst in the actual execution of one or other” of his public “trusts,” and although Harrison did not so state the matter, Hancock was too shrewd a lawyer to have committed that blunder. The matter had, Harrison concluded, also been put to the attorney general of Virginia, and his reply was “a perfect coincidence of opinion” (Executive Letter Book, 1783–1786, pp. 271–73, MS in Va. State Library; JCSV description begins H. R. McIlwaine et al., eds., Journals of the Council of the State of Virginia (4 vols. to date; Richmond, 1931——). description ends , III, 328).

JM’s view of the issue was considerably at variance from that of Randolph and the Council of State (JM to Randolph, 10 Mar. 1784, in LC: Madison Papers; Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (18 vols. to date; Princeton, N.J., 1950——). description ends , VII, 38–39, and n.). On 15 May Randolph informed Jefferson that the latest reports, though unofficial, were that the legislature of South Carolina had refused to support Guerard and might even have “reprehended” his conduct “as the effect of indelicacy and vehemence of temper” (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (18 vols. to date; Princeton, N.J., 1950——). description ends , VII, 260).

These developments did not, however, resolve the embarrassment that Harrison foresaw if an unquestionably valid demand for extradition should be made upon a Virginia executive powerless to respond—a matter that he submitted to the General Assembly in a letter of 3 May (Executive Letter Book, 1783–1786, p. 311, MS in Va. State Library). On 1 June the House of Delegates elected a committee, of which JM was a member, that successfully introduced a bill “directing the mode of suing out and prosecuting writs of habeas corpus.” Therein provision against a potential cause of future interstate controversy was incorporated, and the bill was signed into law on 30 June 1784 (JHDV description begins (1828 ed.). Journal of the House of Delegates of Virginia, Anno Domini, 1776 (Richmond, 1828). description ends , May 1784, pp. 30, 38, 39, 66, 69, 81, 89; 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, 408–10).

In 1785 George Hancock, Jr., was appointed colonel of Botetourt County militia, and in 1787 county attorney for the commonwealth. From 1784 to 1787 and in 1792 he served as a delegate to the Virginia General Assembly (Swem and Williams, Register description begins Earl G. Swem and John W. Williams, eds., A Register of the General Assembly of Virginia, 1776–1918, and of the Constitutional Conventions (Richmond, 1918). description ends , pp. 19, 21, 23, 37), and in 1793–1797 as a representative in the Congress of the United States. Later in life he moved to Fotheringay, his estate in Montgomery County. His daughter Julia was the first wife of William Clark, who, with Meriwether Lewis, won fame as an explorer.

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