From Edmund Randolph1
Philadelphia September 8th. 1792.
Persuaded as I am, that the last effort for the happiness of the United States must perish with the loss of the present Government, and that to be unable to execute laws because a few individuals are resolved to obstruct their operation is nothing less, than a surrender of it, I went into the consideration of the carolina and pittsburg papers2 with a determination to spare no pains to ascertain the Law, arising from the facts which they contain.
I pass by the information from Carolina, because it offers no evidence, nor any prospect of evidence, sufficient for the objects of prosecution. That from Pittsburgh is of a more serious complexion; and yet not strong enough to warrant a judicial movement in the United States. To assemble to remonstrate, and to invite others to assemble and remonstrate to the Legislature, are among the rights of Citizens. I therefore omit special mention of the two first resolutions.3 The last indicates a hostile temper; as it exiles from the comforts of private friendship, and intercourse, and marks for contempt the officers of Excise. Still however when we advert to the strictness, with which criminal Law is interpreted, and the latitude allowed in drawing a meaning from a libel so as to favour the accused, I must pronounce that the law will not reach the Conferees. I am aware that seditious attacks on Government will be generally covered by a measured cautious and artfull language; and it may be said that the public authority will upon my principle, be forever foiled. My answer is, that words which are calculated to withold the exercise of duties of imperfect obligation only, from men not named, but who may accept in future, will disappoint the expectation of public punishment, and thereby disgrace the United States. My maxim is to examine well; to forbear a doubtfull power, and to enforce one, clearly rightfull.
Thus, Sir, you discover my opinion to be against an attempt to a prosecution at this moment, when the malignant spirit has not developed itself in acts so specific, and so manifestly infringing the peace, as obviously to expose the culpable persons to the censures of the Law.
Upon the first communication of this matter in your letter4 I thought of a proclamation, as an eventual substitute, if the law should be found inadequate. It struck me that a proclamation was objectionable, because it seemed that the Executive ought to consign to the course of the law any violations of it, and not to animadvert upon acts to which no Law had prescribed a penalty, and because an improper interference of the President might excite an idea of usurpation and inlist against him even those who execrate the spirit of the Pittsburg proceedings. But after the anticipation of a part only of the consequences, which the silence of Government would produce, after recollecting that these obnoxious things have been transacted in the very state which is the temporary residence of the Administration, that they will carry with them a kind of eclat, as being done at a spot where the United States are certainly not unpopular, that the western Settlers in other States, from a Sympathy of situation, and the want of intelligence may imitate the conduct of the pennsylvania counties, unless they will be restrained by a timely admonition, that few of the serious oppositions to Government have existed, which were not capable of being blasted, if encountered before men committed themselves too deeply, and that acquiescence of the President may be imputed to a suspicion of the inconstitunality or at least gross inexpediency of the Excise Laws, I yeild to the necessity of a Proclamation. I derive the Presidents right to issue it, from the duty of seeing the laws executed, and the fitness of preventing the growth of a crime by salutary advice rather then waiting to press the infliction of punishment.
Under the influence of these sentiments I have perused your draught of a proclamation,5 and shall without reserve suggest what I think necessary alterations; though I really wish that I could have more time for a critical scrutiny than has occurred between yesterday and this morning.
1. I should prefer, if it be practicable in the description of those proceedings which gave birth to the proclamation, that some expression be used, which may shew that it is not the whole of the Pittsburg resolutions which are censured.
2. Criminality is too strong for a case, which the laws do not punish.
3. After the word legislature may it not be well to insert something to this effect “by whose authority alone the operation of the Laws can be suspended.”
4. The moderation alluded to on the part of Government, must be either Legislative or Executive. If legislative be meant, the subsequent member of the sentence is explicit concerning it. If executive, I know no fact to prove that the President might have been otherwise then moderate. Perhaps then it may be better to omit words which are liable to misconstruction.
5. I have no hesitation in saying that the excise law was dictated by reasons of public necessity and policy and I presume that the President who has given his sanction to it will not scruple much on this head. But I should hope that you should remark to him in order to excite his particular attention that by such a language he exhibets himself as a peculiar Friend to the act.
6. Instead of “maintain,” ought not the words of the constitution to be chosen?
7. Every necessary measure to suppress a violent proceeding would go much farther, then the executive ought, unless the measure be legal. The word necessary then might be as well changed for legal or qualified by saying legal and necessary. If “suppress” means something distinct from bringing the offenders to justice, I do not discover what it is. If it means the same thing, it is provided for in the second member of the Sentence. “To secure obedience thereto” is to be sure a phrase, expressive of the final object, but having some latitude it may be perverted by its connection with the other words. Might not the sentence run well enough thus “That every legal measure should be pursued not only to bring to Justice the infractors of the laws but also to prevent such violent and unwarrantable proceedings.”
8. “Seriously” might be changed for something which could not be contrasted with what is not serious. Is not “warn” to nearly synonimous with “admonish” to be coupled with it? Suppose “exhort” to be substituted if two verbs necessary.
9. I think this No. stood better, before the interleniation.
10. For the reasons in No. 7 “for securing obedience thereto” would seem proper to be omitted.
11. The charge to the military would inflame the Country. Nor do I think it sufficient to let it stand upon the word “Officers” generally as the military have no power on the subject and where this is the case of the exciting of a suspicion to introduce them cannot be too sedulously avoided. May it not read thus “All civil Officers according to the duties of their respective Offices to exert &c.”
I submit these observations; which on other occasions would appear to myself too minute; but on that of a proclamation are necessary.
I have the honor, Sir, to be your Mo: obedt. servant.
The Secretary of the Treasury.
Copy, Hamilton Papers, Library of Congress.
1. For background to this letter, see H to Tench Coxe, September 1, 1792; H to George Washington, September 1, 1792; H to John Jay, September 3, 1792; “Draft of a Proclamation Concerning Opposition to the Excise Law,” September 7, 1792; Washington to H, September 7, 1792; Jay to H, September 8, 1792.
2. Presumably this is a reference to articles concerning opposition to the excise which appeared in The Pittsburgh Gazette and some North Carolina newspapers. Issues of the Pittsburgh paper for this period have not been found, nor have relevant issues of the Fayetteville Gazette. Other North and South Carolina newspapers available for this period contain no relevant information.
4. Letter not found.
5. Draft not found. For the final form of the proclamation, see “Draft of a Proclamation Concerning Opposition to the Excise Law,” September 7, 1792, note 1.