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Subject Area: Political Theory
Topic: The American Revolution and Constitution

REPORT ON CONVENTION WITH SPAIN 1 - Thomas Jefferson, The Works, vol. 6 (Correspondence 1789-1792) [1905]

Edition used:

The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 6.

Part of: The Works of Thomas Jefferson, 12 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


REPORT ON CONVENTION WITH SPAIN1

j. mss.

[Mar 22 1792]

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. 1. § 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, of which we have Need, is Murder.

Ought we to wish to strain the natural right of arresting and redelivering 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 some what less than death.

It may be said that to some, as Foreigners, it is no punishment.

Arson: 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 cases would this Difference be so important as to over weigh even the simple 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 Struggles 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 flees to us.

Treasons then, taking the simulated with the real, are sufficiently punished by Exile.

2. 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 accessory 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 it’s 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.

[1 ]Transmitted to the President with the following note:

“The Secretary of state having had under consideration the expediency & extent of a Convention with Spain to be established with respect to fugitives from the United States to their adjoining provinces, or from those provinces to the United States, Reports to the President of the United States the inclosed Analytical view of the motives & principles which should govern such a convention, and the Project of a convention adapted thereto, which he is of opinion should be forwarded to Messrs. Carmichael & Short, with powers to treat & conclude thereon.” To this Washington replied:

Mar 25, 1792

“The President of the United States has attentively considered the ‘Project of a Convention with the Spanish’ which was submitted to him by the Secretary of State, and informs the Secretary, that the same meets with his approbation. The President, however, thinks it proper to observe, that in perusing the before-mentioned Project, some doubts arose in his mind as to the expediency of two points mentioned therein,—the one relative to instituting a civil, instead of a criminal process against forgers, who generally, if not always, are possessed of little property; the other respecting the unlimited time in which a person may be liable to an action.

By expressing these queries, the President would not be understood as objecting to the points touched upon; he only wishes to draw the Secretary’s further attention to them; and if he upon reconsideration think it right for them to stand upon the present footing, the President acquiesces therein.”