Article 4, Section 2, Clause 2
[Volume 4, Page 517]
James Madison to Edmund Randolph10 Mar. 1784Papers 8:3--4
I have perused with both pleasure and edification your observations on the demand made by the Executive of S. C. of a citizen of this State. If I were to hazard an opinion after yours, it would be that the respect due to the chief magistracy of a confederate State, enforced as it is by the articles of Union, requires an admission of the fact as it has been represented. If the representation be judged incomplete or ambiguous, explanations may certainly be called for; and if on a final view of the charge, Virginia should hold it to be not a casus foederis, she will be at liberty to withhold her citizen, (at least upon that ground) as S. C. will be to appeal to the Tribunal provided for all controversies among the States. Should the Law of S. C. happen to vary from the British Law, the most difficult point of discussion I apprehend will be, whether the terms "Treason &c." are to be referred to those determinate offences so denominated in the latter Code, or to all those to which the policy of the several States may annex the same titles and penalties. Much may be urged I think both in favor of and agst. each of these expositions. The two first of those terms coupled with "breach of the peace" are used in the 5 art: of the Confederation, but in a way that does not clear the ambiguity. The truth perhaps in this as in many other instances, is, that if the Compilers of the text had severally declared their meanings, these would have been as diverse as the comments which will be made upon it.
Wa[i]ving the doctrine of the confederation, my present view of the subject would admit few exceptions to the propriety of surrendering fugitive offenders. My reasons are these: 1. By the express terms of the Union the Citizens of every State are naturalized within all the others, and being entitled to the same privileges, may with the more justice be Subjected to the same penalties. This circumstance materially distinguishes the Citizens of the U. S. from the subjects of other nations not so incorporated. 2. The analogy of the laws throughout the States, and particularly the uniformity of trial by Juries of the vicinage, seem to obviate the capital objections agst. removal to the State where the offence is charged. In the instance of contiguous States a removal of the party accused from one to the other must often be a less grievance, than what happens within the same State when the place of residence & the place where the offence is laid are at distant extremities. The transportation to G. B. seems to have been reprobated on very different grounds: it would have deprived the accused of the privilege of trial by jury of the vicinage as well as of the use of his witnesses, and have exposed him to trial in a place where he was not even alledged to have ever made himself obnoxious to it; not to mention the danger of unfairness arising from the circumstances which produced the regulation. 3. Unless Citizens of one State transgressing within the pale of another be given up to be punished by the latter, they cannot be punished at all; and it seems to be a common interest of the States that a few hours or at most a few days should not be sufficient to gain a sanctuary for the authors of the numerous offences below "high misdemeanors." In a word, experience will shew if I mistake not that the relative situation of the U. S. calls for a "Droit Public" much more minute than that comprised in the foederal articles, and which presupposes much greater mutual confidence and amity among the Societies which are to obey it, than the law which has grown out of the transactions & intercourse of jealous & hostile Nations.
The Papers of James Madison. Edited by William T. Hutchinson et al. Chicago and London: University of Chicago Press, 1962--77 (vols. 1--10); Charlottesville: University Press of Virginia, 1977--(vols. 11--).
© 1987 by The University of Chicago