From Edmund Randolph
Philadelphia July 23. 1791.
In preparing the letter, which I had the honor of addressing to you on the 20th instant, respecting the controversy between the governors of Pennsylvania and Virginia, I kept in view the propriety of saying something of a reference to congress, and of ascertaining the time, when you would probably choose to interpose in such disputes.1 Presuming, that you would not wish to confirm more of the report of a public officer, than may be necessary, and not perceiving any immediate reason in this case for your deciding on the fit time for your interference, the subjoined draught of a letter to Governor Mifflin goes upon the idea of a reference to congress only.2 Should I be wrong in this conjecture, I shall with great readiness submit another draught upon any plan, which you may be pleased to suggest. I have the honor, sir, to be with the highest respect yr mo. ob. serv.
ALS, DNA:PCC, item 69.
For background to this letter, see Thomas Mifflin to GW, 18 July, and notes to that document.
1. Edmund Randolph’s letter of 20 July to GW reads: “The secretary of state yesterday submitted to me, by your instruction, copies of the letter from the governor of Pennsylvania to you, and of his correspondence with the governor of Virginia, on the demand of Francis McGuire, Baldwin Parsons, and Absalom Wells, as fugitives from justice.
“This demand is founded on that article of the fœderal constitution, which directs, that ‘a person, charged in any state, with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state, from which he fled, be delivered up, to be removed to the state, having jurisdiction of the crime.’
“He must be charged. This term is sufficiently technical, to exclude any wanton or unauthorized accusation, from becoming the basis of the demand. It would, in the language of mere legal entries be applicable, where a bill had been found by a grand jury. It must be interpreted under the constitution, as at least requiring some Sanction to be given to the suspicion of guilt by a previous investigation. In the present instance a grand jury, convened before two of the justices of the Supreme court of Pennsylvania have made it; and thus have furnished a ground for bringing the foregoing persons to a formal trial. Should such a procedure, as this, be declared to be incompetent, as a charge, the object of this article in the constitution must be either defeated, or be truly oppressive. For between an indictment and an actual trial there is no intermediate examination of the fact; and to wait for the condemnation of an absent culprit before a demand, would compel a judgment to be rendered behind his back. Outlawry indeed may be practised in sometimes; but it cannot be always pursued: and even where it is pursued, it Stamps the offence with no higher appearance of truth, than a true bill, received from the grand jury.
“The person charged must be also charged with a crime. That the supposed conduct of Mcguire and others is a crime under the laws of Pennsylvania, the very respectable attorney-general of Virginia has not been informed. It is punishable by a fine and hard labor. The first process is a capias: outlawry is inadmissible on it, and the offender cannot appear by his attorney. Some doubt may perhaps be entertained, whether according to a known rule of construction, the words ‘or other crime,’ being associated with treason and felony, ought not to be confined to crimes having some quality, common to them and treason and felony. Such a common quality does not exist, unless it be that of felony itself. Why then are the words, ‘or other crime,’ added, if felonies alone were contemplated? In the penal code of almost every state, the catalogue of felonies is undergoing a daily diminution. But it is not by the class of punishment, that the malignity of an offence is always to be determined. Crimes, going deep into the public peace, may bear a milder name and consequence; and yet it would be singular to shelter those, who were guilty of them, because they were not called and punished as felonies.
“The person, charged with a crime, must also flee from justice. Some species of proof is indispensable. Otherwise the most innocent citizen may be carried in chains from his own to another state. It cannot be denied, that every assertion of a governor ought to produce assent. But upon a judicial subject, testimony according to the judicial course is alone adequate; and the demand is the only thing, which is referred to an executive absolutely. The governor of Virginia is responsible for the just use of his discretion; and if he should yield to informal evidence, he must yield at his peril. With every respectful deference therefore for the communications of the governor of Pennsylvania, he ought to exact the return of a public officer on some process, or an affidavit, before he takes measures for apprehending McGuire and others. On this occasion, however, the governor of Pennsylvania builds his demand on the documents, transmitted to the governor of Virginia; not one of which has the semblance of proof, that they do flee from justice. Permit me too, to observe, sir, that the governor of Pennsylvania is perhaps not apprized of a fact, which the prothonotary of the supreme court of Pennsylvania has this moment stated to me in writing; to wit: that in the spring of 1790 he issued writs of capias against them: that it was returned, that McGuire and Parsons were not found, and that Wells was taken and committed; and that nothing was done at the last session in these cases. Now this is no complete proof, that even Mcguire and Parsons have fled from justice: it manifests, that Wells has not fled; and it evinces the necessity of caution in branding a man, as a deserter of a fair trial.
“The person, charged with a crime, must not only flee from justice, but he must be found in another state. At first it may seem unimportant, whether he be so found or not; because if he be not there, he can sustain no injury from an arrest. I will not decide, how far his character may suffer, if he proclaimed throughout a state, as a fugitive, when he may have have entered it; nor yet what other inconveniences he may undergo. But if the probability of these be striking, he ought not to be hunted for by public authority at random. The offence, altho’ afterwards repaid, and the trouble, which cannot be avoided in the pursuit, ought not to be causelessly thrown on a sister state. Hence is it made a prerequisite to a demand, that the culprit shall be found in the state: that is, that some satisfaction be given, that government will not be put upon a frivolous search. In this case no legal exhibit is shewn to this effect: nay it is presumable, that Wells remains in the custody of Pennsylvania.
“The person, charged with a crime, fleeing from justice, and found in another state, is to be delivered up, to be removed to the state, having jurisdiction. In this place, I am compelled to differ from the attorney general of Virginia in two points. He is pleased to affirm, that to support the demand, ‘there must be a defect in the jurisdiction of the state, from which the demand is made, and an exclusive jurisdiction in the state, making the demand’; and that ‘the executive of Virginia cannot comply with such a demand, until some additional provisions by law shall enable them to deliver up the offenders.’
“It is notorious, that the crime is cognizable in Pennsylvania only; for crimes are peculiarly of a local nature. Therefore his two conditions are here fulfilled; namely a defect of jurisdiction in Virginia, and an exclusive jurisdiction in Pennsylvania. But if it were conceived, that Virginia might chastize offences against Pennsylvania or that an action might be maintained in Virginia for what is a crime in Pennsylvania, it would not follow, that the latter could not demand a malefactor from the former; for the clause in the constitution was obviously dictated by a wish to prevent that distrust, which one state would certainly harbour against another in situations, so capable of abuse. Besides, it corresponds with the words of the constitution, if the state demanding has a jurisdiction; altho’ it might not be an exclusive one. And these observations would have equal weight, if the fœderal courts in Virginia could animadvert on crimes, arising within the limits of Pennsylvania. But the constitution directs, that trials ‘shall be held in the state, where crimes shall have been committed.’
“I differ farther; in not discovering the disability of Virginia to deliver up the offenders. It has been sometimes fancied, that by delivering up is meant, only that the state, from which the demand is made, should express an approbation, that they may be apprehended within its territories. But as a state cannot be said to deliver up without being active; and it might disturb the tranquillity of one state, if the officers of another were at liberty to seize a criminal within its limits, the natural and safe interpretation is, that the delivery must come from Virginia.
“To this duty the executive of that state offer no objection; but they contend, that her own constitution and laws, and those of the United States being silent as to the manner and particulars of arrest and delivery, they cannot, as yet, move in the affair.
“To deliver up is an acknowledged fœderal duty: and the law couples with it the right of using all incidental means, in order to discharge it. I will not inquire here, how far these incidental means, if opposed to the constitution or laws of Virginia, ought notwithstanding to be exercised; because Mcguire and his associates may be surrendered, without calling upon any public officer of that state. Private persons may be employed, and clothed with a special authority. The attorney general agrees, that a law of the United States might so ordain; and wherein does a genuine distinction consist, between a power, deducible from the constitution, as incidental to a duty, imposed by that constitution; and a power, given by congress, as auxiliary to the execution of such a duty? Money indeed must be expended; and a state may suspend its exertions, until the preliminary proofs are adduced. I cannot undertake to foresee, whether the expending state will be reimbursed. If the constitution will uphold such a claim, it will doubtless be enforced. If it will not, it must be remembered, that that instrument was adopted with perfect free-will.
“From these premisses I must conclude, that it would have been more precise in the governor of Pennsylvania to transmit to the governor of Virginia an authenticated copy of the law, declaring the offence: that it was essential, that he should transmit sufficient evidence of Mcguire and others having fled from the justice of the former, and being found in the latter: that without that evidence the executive of Virginia ought not to have delivered them up: that with it they ought not to refuse. The governor of Pennsylvania, however, appears to be anxious, that this matter should be laid before congress; and perhaps such a step might content all scruples.
“But at any rate I can find no obligation nor propriety, which can warrant the interposition of the President at this stage of the business. A single letter has gone from the governor of Pennsylvania to the governor of Virginia. A compliance has been denied; and the denial has proceeded from a deficiency of proof in two instances, from a misapprehension of fact in another, and probably untenable reasoning in some others. This deficiency then ought to be supplied by the governor of Pennsylvania; and the fact, which has been mistaken, placed on its true footing. As to any inaccuracy of reasoning, the President can do no more, than shew to the governor of Virginia, where it lies: he cannot be authoritative: nor would he, I presume, even if he had power, choose to exert it, until every hope should be lost of convincing the judgment of the state. But this argumentative intercourse belongs to the governor of Pennsylvania; and ought to be managed by him, until the prospect of satisfaction shall disappear. At such a period it may perhaps be seasonable for you to interfere. But now to interfere would establish a precedent for assuming the agency in every embryo-dispute between states: whereas Your mediation would be better reserved, until the interchange of their sentiments and pretensions shall fail in an accommodation” (DNA:PCC, item 69).
2. The “subjoined draught” in Randolph’s hand of GW to Mifflin, 23 July, reads: “The papers, which your excellency lately transmitted to me, concerning your demand from the governor of Virginia, of certain persons, supposed to be fugitives from justice, were submitted to the attorney general of the United States for his opinion. A copy of that opinion is now forwarded; and I shall take an opportunity of laying before congress all the documents, of which I am possessed, on this subject” (DNA:PCC, item 69). Mifflin wrote to GW on 2 Aug.: “I find, on referring to the Records of the Supreme Court of this Commonwealth, in the case of McGuire, Parsons, and Wells, which I lately submitted to your consideration, that the last of these persons was apprehended. I have, therefore, in addition to the other documents, inclosed to you a transcript of the Record; a copy of which I shall, likewise, transmit to the Governor of Virginia, together with the necessary evidence (as soon as it can be procured) to prove that McGuire and Parsons, have actually fled from the justice of Pennsylvania into that State, agreably to the form suggested in the opinion of the Attorney General, which you have been pleased to communicate” (DNA:PCC, item 69). For GW’s submittal of the matter to Congress when it convened, see GW to the U.S. Senate and House of Representatives, 27 Oct. (second letter).