From Henry Knox
War Department, April 7 1794.
I have the honor to submit to your consideration the opinion of the Attorney General upon the act of the legislature of Pennsylvania for securing the trade, peace and safety of the port of Philadelphia, and defending the Western frontiers of the Commonwealth.1 I am Sir, Most respectfully, Your obedient Servant
LS, DLC:GW; LB, DLC:GW.
1. Knox wrote Attorney General William Bradford on 31 March to ask for his opinion on a Pennsylvania law of 28 Feb. entitled “An ACT for more effectually securing the trade, peace and safety of the port of Philadelphia, and defending the Western Frontiers of the commonwealth” (ASP, Indian Affairs description begins Walter Lowrie et al., eds. American State Papers. Documents, Legislative and Executive, of the Congress of the United States. 38 vols. Washington, D.C., Gales and Seaton, 1832–61. description ends , 523). On this legislation and GW’s concerns about its constitutionality, see Bartholomew Dandridge, Jr., to Knox, 30 March, and n.2.
Bradford’s signed reply to Knox of 2 April begins with a restatement of the act in question and then continues: “By the Constitution of the U.S. it is provided ‘That no State shall without the consent of Congress lay any duty of Tonnage, keep troops or ships of war in time of peace’ &c. This restriction on the power of keeping Troops, I am of opinion, is not absolute; but that the natural & grammatical construction of the words connect the qualification intended by the terms—‘in time of peace’—with this restriction, as well as with that on keeping ships of War. There is therefore nothing in the constitution which prohibits the states from keeping Troops in time of War.
“So far, therefore, as the act in question contemplates the defence of the Western Frontiers against the hostilities of the Indians now at War with the United States, I consider it as within the strictest limit of the Constitution. Such measures have heretofore been pursued by the state of Pennsylvania without objection; & a practical construction of this clause in the Constitution has thus been given.
“The rest of the act however, is questionable and it is not without some great hesitation that I decide upon it. The spirit of a prohibition to keep troops in time of peace seems to imply that the Troops raised and kept in time of War, ought to be raised, kept, & employed, with reference to the objects of that war. It is easy to perceive that the dangers which it is notable the people of the United States, intended to guard against this prohibition, will exist, if on every breaking out of indian or other hostilities, the separate states may raise troops, & build ships of war for any object but that of repelling such hostilities. But altho’ these consequences are evident, I cannot find in the constitution itself, any thing which prohibits the states from stationing & employing the troops which they have a right to keep in time of war, in what manner they please, within the bounds of their respective states. I consider those clauses in the constitution, which restrict the powers of the several states, as subject to a strict construction; and that the prohibitions are not to be extended by implication, nor is the natural & obvious meaning of the words to be enlarged by a consideration of inconveniences which may possibly result from adhering to it.
“But as the state of Pennsylvania has no power to keep troops when the United States are not at war, so much of the act as goes to authorize the Governor ‘to keep up those companies if the circumstances of the war in Europe should in his Opinion require it’ is not, I apprehend compatible with the Constitution of the United States. If Peace shall be made with the Indians, & no other war, these troops cannot be constitutionally kept up by Pennsylvania, altho’ the war should continue, & the terms of the inlistment should be unexpired” (NNGL: Knox Papers; see also ASP, Indian Affairs description begins Walter Lowrie et al., eds. American State Papers. Documents, Legislative and Executive, of the Congress of the United States. 38 vols. Washington, D.C., Gales and Seaton, 1832–61. description ends , 1:523–24, for a version that contains some modifications in phrasing and word choice and is dated 3 April).