From William Bradford
[c.5 Aug. 1794]1
The Attorney General has the honor of stating, as required to the president of the United States his opinion upon the late combinations in the Western Counties of Pennsylvania and on the measures requise to suppress them.
The offence which has already been committed and which the Insurgents beyond the Alleghany Mountain still persist in, appears to the Attorney General so far as respects the Government of the United States, to be an act of High Treason by levying war against them. It has been settled by uniform judicial construction, that all insurrections, risings or armed combinations to withstand the authority or alter the lawful measures of government, to change the established Law—to redress a real or pretended grievance of a public nature, and to effect other innovations of a general concern by their own authority & with force—are in construction of Law high Treason within the clause of levying war "for such violences have a direct tendency to dissolve all the bonds of society and to destroy all property & all government too by numbers & an armed force."2 Now, it appears that the manifest and avowed object of these violences and risings that have taken place, have been & are to resist by force, the execution of the excise laws—to compell by threats & the terror of Death the officers who are the necessary organs for their execution, to resign their offices—to prevent the Marshall by violence from serving judicial process under those laws—and to obtain by means of their combinations a repeal of the acts that are offensive to them.
As to those who actually robbed the Mail, as well as those associated with them for that purpose, they are also, in this respect guilty of a capital Crime.
The offences are cognizable in the Courts of the United States—& the offenders, if convicted, are liable to suffer death.
But, before punishment can be contemplated, the authority of the laws must be restored & the Government placed in a situation to be able to inflict it. At present the authority of the Government is prostrated in that part of the Country & from the experiment that has been made, it seems that the laws cannot be enforced by the ordinary powers of the Executive or Jud[ic]ial departments. Upon this however it is for the District Judge or one of the associate Judges first to decide: & it has been accordingly certified by the Associate Judges that in conformity to the act of Congress that the execution of the Laws is opposed in that part of the United States by Combinations too powerful to be resisted by the usual course of judicial proceedings or by the powers vested in the Marshall by that act.3 Altho’ this certificate be sufficient in point of Law to enable the President to have recourse to the means provided by that act for suppressing insurrections, & causing the laws to be executed, yet the Attorney General is of opinion that this does not preclude the President’s Judgment upon the facts; and unless he draws the same conclusion from them, it is conceived, that recourse may still be had to the ordinary means of enforcing the laws.
The opinion of the Attorney General respecting the inefficacy of those ordinary means, coincides with that expressed in the certificate of the Associate Judge. He forms this opinion from an attentive consideration of the affidavits and documents which have been laid before the President. It appears from these (without repeating what has been already stated) that notwithstanding great and repeated exertions have been made to execute the Excise law in Washington County, these have been either eluded or suppressed by force—that at length a general and open opposition is formed to resist that law in which Magistrates and Militia officers have joined—that no one can attempt to execute the law but at the hazard of his life—that the Marshall has been compelled by violence & under the pain of Death to engage that he would execute no more of the process there; and that a citizen who person & property are exposed to the insurgents, has become surety that he shall observe that engagement—that the authority of the civil government is so prostrated that two Judges of Alleghany County, certified to General Nevil, who applied for their protection, that the civil authority was too weak to afford him the protection to which every citizen was intitled: and that even the posse comitatus would contain few who were not of the party of the Insurgents—that attempts are making to excite other parts of the United States to unite with them in their opposition—and to procure a meeting of deputies to give system & energy to their measures.4
From these and other facts of a like kind, it appears evident to the Attorney General, that no officer would attempt, or if he did attempt it, would be able to arrest the offenders, serve the process that has been issued or enforce the laws, unless he be protected by a force superior to that which has arrayed itself against the government & the laws.
In this situation of things the Executive is reduced to the melancholy Necessity of having recourse to the more efficient means provided in the act for suppressing insurrections & executing the Laws, by calling forth the Militia. He seems to have no alternative left. The Constitution enjoins it as his duty, "that he shall take care that the laws be faithfully executed"5—The laws have placed efficient means in his hands—and if the milder measures prove ineffectual his duty seems to require that he exert the higher Powers which the people of the United States have entrusted to him, for such an emergency.
The posse which the Marshal is authorised to raise would be wholly incompetent to the object. Experience has shewn that very few can be raised in this way even when they are not required to go beyond the bounds of their County: but they would consider it as an insupportable hardship to follow the Marshall two or three hundred miles. They would be useless without arms—and tho’ the law permits them to take weapons it does not compell them to do so & the Marshal has no means of supplying them. If they were armed, they would, in reality, be Militia under another name—but Militia, for whom no pay—provisions—ammunition or equipage is provided by Law—who would be subject to no rules or discipline—& who might return home whenever they pleased without the Marshal having any compulsive means to prevent it. No force sufficient to protect the officers in the Execution of their duty could be expected in such a body. The Militia, drawn out in support of the civil authority, seems the most proper posse in a republican Goverment, & in such great emergencies as this.
If this measure of calling out the Militia be adopted, the Attorney General is of opinion that the force ought to be such as by suppressing the hope of successful resistance may induce an early submission to the Laws & prevent the unhappy consequences that further opposition may produce. What number this would require, the Attorney General is not prepared to decide upon—but as the Governor of Pennsylvania has assured the President that he does not believe that the Militia that could be procured in Pennsylvania would be adequate to the object, it might be advisable to call upon the Governors of Maryland & Virginia and even of New Jersey, to hold a competent number of men in readiness to march in case there should be a real necessity of calling them out.
The regret which the Executive will feel at the necessity he may be under of employing measures so strongly coercive, will readily suggest that this service cannot be a pleasant one to the Militia. It should therefore be recollected that there is no means of compelling a personal service and that every one is at liberty to decline the service on submitting to a fine. Many would prefer the penalty before so distant and disagreeable a service, under any view they might have of the measure itself: but there is danger to fear that the refusal to serve may be pretty extensive, unless the public mind be satisfied that all other means in the power of the Executive have failed and that military coercion is absolutely necessary to support the Laws. The Attorney General would therefore recommend that the whole conduct of the Government & of the insurgents & their abettors, should be fully stated and laid before the public as early as possible. It would, (in the opinion of the Attorney General) be advantageous to make it precede or at least accompany the call of the Militia. This is the more necessary as the Act in question is not a favorite in Pennsylvania;6 and many who would quietly obey it would not chuse to be active in enforcing it. A pretty general refusal on the part of the Militia to turn out would have the most injurious Effects. It would prove the weakness of the Government—it would encourage the insurgents—and the penalties to which this refusal would expose a large body of citizens, would occasion dissatisfactions and heighten the clamours that the disaffected would make against the measure of government. Nor is it improbable that some endeavors will be used to poison the public mind and to induce the Militia to decline the service. These considerations evince the necessity of adopting every proper means to give the measure contemplated the weight of public opinion: and also strengthen the reasons for calling on the other states to hold their Militia in readiness.
The same considerations impress the mind of the Attorney General with the propriety of defering the time of Assembling the Militia to a distant day. In the mean time a proclamation may be issued making known the grounds on which the Executive proceeds—commanding the insurgents to disperse & submit to the Laws—& making known to them the determination of the Government to use its whole powers to cause the Laws to be duly executed. How far such a proclamation should contain any promises of Pardon deserves further consideration.
It is possible that a returning sense of duty—an unwillingness to encounter the whole force of the Union—the endeavors of the prudent & temperate among them—may allay the ferment & prepare the way for the restoration of order. But as some immediate protection is due to the citizens well disposed to the Laws of the United States, it is apprehended, that immediate application may be made in writing to the Executive of Pennsylvania requesting him to use all the legal & constitutional powers with which he is invested to cooperate with the government in suppressg the insurrection and restoring the authority of the Laws. The temper of the insurgents may thus be felt thro’ the medium of the State Officers.
Other circumstances may arise that may make it unnecessary to march the Militia. It would therefore be very desirable—if not indispensible—to obtain accurate, full & faithful accounts of the conduct, intentions and temper of the inhabitants of these Counties, especially after they know of the call of the Militia. This may be obtained from some persons resident among them to whom a messenger, not likely to be suspected, might be immediately dispatched.
But if the forbearance of government does not produce any salutary Effect, it will probably be seconded by the public sentiment, in its endeavors to reduce these refractory spirits to obedience & submission, by military force.
The Attorney General has not taken into consideration the intention, imputed to the insurgents, of availing themselves of the aid of the British.7 He does not think it sufficiently proved to be a ground of acting upon.
ADS, DLC:GW; ADf, PHi: John William Wallace Papers.
1. This undated document is docketed in part, "Augt 1794." It must have been written after Judge James Wilson’s certificate of 4 Aug. and before GW’s proclamation of 7 August. The other cabinet opinions on this subject are dated 2, 4, and 5 Aug., which suggests 5 Aug. as a reasonable date for the opinion.
2. A symbol was placed following this quotation to reference citations written at the bottom of the page: "1. Hawkins. P.C. 37. Foster’s Crown Law p. 212. 3 Institute 9.10." The citations are to William Hawkins, A treatise of the pleas of the Crown: or a system of the principal matters relating to that subject, digested under their proper heads (1716-21 and subsequent editions); Michael Foster, A report of some proceedings on the Commission of Oyer and Terminer and Goal delivery for the trial of the rebels in the year 1746 in the county of Surry, and of other Crown cases. To which are added discourses upon a few branches of the Crown law (1762 and subsequent editions); and Edward Coke, The third part of the Institutes of the laws of England: concerning high treason, and other pleas of the crown, and criminall causes (1644 and subsequent editions). The quotation is from Foster, p. 211, in the 1762, 1767, 1791, and 1792 editions.
3. For the certificate of Judge Wilson, see Henry Knox to GW, 4 Aug., n.4. For the act of 2 May 1792, see Stat description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends . 1:264-65.
5. The quotation is taken from Article II, section 3.
6. Here Bradford was referring to "An Act repealing, after the last day of June next, the duties heretofore laid upon Distilled Spirits imported from abroad, and laying others in their stead; and also upon Spirits distilled within the United States, and for appropriating the same," 3 March 1791, amended by acts of 8 May 1792 and 5 June 1794 (Stat description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends . 1:199-214, 267-71, 378-81).