From Thomas Mifflin
Philadelphia, 5th August 1794
The important subject, which led to our conference on Saturday last, and the interesting discussion that then took place, having since engaged my whole attention, I am prepared, in compliance with your request, to state with candor the measures which, in my opinion, ought to be pursued by the Commonwealth of Pennsylvania.1 The circumstances of the case evidently require a firm and energetic conduct on our part, as well as on the part of the General Government; but as they do not preclude the exercise of a prudent and humane policy, I enjoy a sincere gratification in recollecting the sentiment of regret, with which you contemplated the possible necessity of an appeal to arms. For, I confess, that in manifesting a zealous disposition to secure obedience to the constitutions and Laws of our Country, I too shall ever prefer the instruments of conciliation to those of coercion; and never, but in the last resort, countenance a dereliction of Judiciary authority, for the exertion of Military force.
Under the influence of this general sentiment, I shall proceed, Sir, to deliver my opinion relatively to the recent Riots in the county of Allegheny; recapitulating, in the first place, the actual state of the information which I have received.
It appears, then, that the Marshal of the District having, without molestation, served certain process, that issued from a Federal Court, on various Citizens who reside in the county of Fayette, thought it proper to prosecute a similar duty in the county of Allegheny, with the assistance, and in the company of Genl Nevill, the Inspector of the Excise for the western District of Pennsylvania: that while thus accompanied he suffered some insults, and encountered some opposition: that considerable bodies of armed men having, at several times, demanded the surrender of Genl Nevill’s commission and papers, attacked and, ultimately, destroyed his house: that these Rioters (of whom a few were killed, and many wounded) having taken the Marshal and others prisoners, released that officer, in consideration of a promise, that he would serve no more process on the western side of the Allegheney Mountain: that, under the apprehension of violence, Genl Nevill, before his house was destroyed, applied to the Judges of Allegheney County for the protection of his property, but the Judges on the 17th day of July, the day on which his house was destroyed, declared that they could not, in the present circumstances, afford the protection that was requested, though they offered to institute prosecutions against the Offenders; and that Genl Nevill and the Marshal, menaced with further outrage by the Rioters, had been under the necessity of withdrawing from the county. To this outline of the actual information respecting the riots, the stoppage of the Mail may be added, as matter of aggravation; and the proposed Convention of the inhabitants of the neighbouring Counties of Pennsylvania and Virginia, as matter of alarm.2
Whatever construction may be given, on the part of the United States, to the facts that have been recited, I cannot hesitate to declare on the part of Pennsylvania, that the incompetency of the Judiciary Department of her Government, to vindicate the violated laws, has not at this period been made sufficiently apparent; and that the Military power of the Government ought not to be employed until its Judiciary authority, after a fair experiment, has proved incompetent to enforce obedience, or to punish infractions of the law.3 The law having established a tribunal and prescribed the mode for investigating every charge, has likewise attached to every offence its proper punishment. If an opponent of the Excise-system refuses or omits to perform the duty which that system prescribes to him, in common with his fellow Citizens, his refusal, or omission, exposes him to the penalty of the law; but the payment of the penalty expiates the legal offence. If a riot is committed in the course of a resistance to the execution of any law, the Rioters expose themselves to prosecution and punishment, but the sufferance of their sentence extinguishes their crime. In either instance, however, if the strength and audacity of a lawless combination shall baffle and destroy the efforts of the Judiciary authority to recover a penalty, or to inflict a punishment, that authority may Constitutionally claim the auxiliary intervention of a Military power; but still the intervention cannot commence till the impotency of the Judicial authority has been proved by experiment, nor continue a moment longer than the occasion for which it was expressly required.4 That the laws of the Union are the laws of the State, is a Constitutional axiom that will never be controverted: that the authority of the State ought to be exerted in maintaining the authority of the Union, is a patriotic position which I have uniformly inculcated: but in executing the laws or maintaining the authority of the Union, the Government of Pennsylvania can only employ the same means, by which the more peculiarly municipal laws and authority of the State are executed and maintained. ’Till the riot was committed, no offence had occurred, which required the aid of the State Government: when it was committed, it became the duty of the State Government to prosecute the offenders, as for a breach of the public peace and the laws of the Commonwealth; and if the measures shall be precisely what would have been pursued, had the riot been unconnected with the system of Federal policy, all, I presume, will be done, which good faith and justice can require. Had the riot been unconnected with the system of Federal policy, the vindication of our laws would be left to the ordinary course of justice; and, only in the last resort, at the requisition, and as an auxiliary, of the Civil authority, would the Military force of the State be called forth.
Experience furnishes the strongest inducements to my mind, for persevering in this lenient course. Riots have heretofore been committed in opposition to the laws of Pennsylvania, but the rioters have invariably been punished by our Courts of Justice. In opposition to the laws of the United States, in opposition to the very laws now opposed, and in the very counties supposed to be combined in the present opposition, riots have, likewise, formerly occurred; but in every instance, supported by legal proof, the offenders have been indicted, convicted, and punished, before the tribunals of the State. This result does not announce a defect of jurisdiction—a want of Judicial power, or disposition, to punish infractions of the law; a necessity for an appeal from the political, to the physical strength of the Nation.
But another principle of policy deserves some consideration. In a free country it must be expedient to convince the Citizens of the necessity, that shall, at any time, induce the Government to employ the coercive authority with which it is invested. To convince them that it is necessary to call forth the Military power, for the purpose of executing the laws, it must be shewn, that the Judicial power has, in vain, attempted to punish those who violate them: and, therefore, thinking, as I do, that the incompetency of the Judicial power of Pennsylvania has not yet been sufficiently ascertained I remarked, in the course of our late conference, that I did not think it would be an easy task to embody the Militia, on the present occasion. The Citizens of Pennsylvania (however a part of them may, for a while, be deluded) are the friends of law and order: but when the inhabitants of one district shall be required to take arms against the inhabitants of another, their general character does not authorise me to promise a passive obedience to the mandates of Government. I believe, that as freemen they would enquire into the cause and nature of the service proposed to them; and, I believe, that their alacrity in performing, as well as in accepting it, would essentially depend on their opinion of its justice and necessity.5
Upon great political emergencies, the effect of every measure should be deliberately weighed. If it shall be doubted, whether saying that the Judiciary power is yet untried, is enough to deter us from the immediate use of Military force, an anticipation of the probable consequences of that awful appeal, will enable us, perhaps, satisfactorily to remove or overlook the doubt. Will not the resort to force enflame and cement the existing opposition? Will it not associate, in a common resistance, those who have hitherto peaceably, as well as those who have riotously, expressed their abhorrence of the Excise? Will it not collect and combine every latent principle of discontent, arising from the supposed oppressive operations of the Federal Judiciary, the obstruction of the Western navigation, and a variety of other local sources? May not the magnitude of the opposition, on the part of the ill-disposed, or the dissatisfaction at a premature resort to arms, on the part of the well-disposed, Citizens of this State, eventually involve the necessity of employing the Militia of other States? And the accumulation of discontent, which the jealously engendered by that movement may produce, who can calculate, or who will be able to avert? Nor, in this view of the subject, ought we to omit paying some regard to the ground for suspecting, that the British Government has already, insidiously and unjustly, attempted to seduce the Citizens on our Western frontier from their duty;6 and, we know, that in a moment of desperation, or disgust, men may be led to accept that as an assylum, which, under different impressions, they would shun as a snare.
It will not, I am persuaded, Sir, be presumed, from the expression of these sentiments, that I am insensible to the indignation, which the late outrages ought to excite in the mind of a Magistrate, entrusted with the execution of the laws. My object, at present, is to demonstrate, that on the principles of policy, as well as of law, it would be improper in me to employ the military power of the state, while its Judiciary authority is competent to punish the Offenders. But should the Judiciary authority prove insufficient, be assured of the most vigorous co-operation of the whole force which the Constitution and Laws of the State entrust to me, for the purpose of compelling a due obedience to the Government; and, in that unfortunate event, convinced that every other expedient has been resorted to in vain, the public opinion will sanctify our measures, and every honest Citizen will willingly lend his aid to strengthen and promote them.
The steps which under my instructions were taken, as soon as the intelligence respecting the riots was received, will clearly, indeed, manifest the sense that I entertain upon the subject. To every Judge, Justice, Sheriff, Brigade Inspector, in short to every public officer residing in the Western counties, a letter was addressed expressing my indignation and regret, and requiring an exertion of their influence and authority to suppress the tumults and punish the offenders. The Attorney General of the State was, likewise, desired to investigate the circumstances of the riot, to ascertain the names of the rioters, and to institute the regular process of the law, for bringing the leaders to justice.7 In addition to these preliminary measures, I propose issuing a Proclamation, in order to declare (as far as I can declare them) the sentiments of the Government; to announce a determination to prosecute and punish the offenders; and to exhort the Citizens at large to pursue a peaceable and patriotic conduct:8 I propose engaging three respectable Citizens to act as Commissioners for addressing those who have embarked in the present combination, upon the lawless nature, and ruinous tendency of their proceedings; for inculcating the necessity of an immediate return to the duty which they owe their Country; and for promising (as far as the State is concerned) a forgiveness of their past transgressions, upon receiving a satisfactory assurance, that, in future, they will submit to the laws:9 and I propose, if all these expedients should be abortive, to convene the Legislature, that the ultimate means of subduing the spirit of insurrection, and of restoring tranquility and order, may be prescribed by their wisdom and authority.
You will perceive, Sir, that throughout my observations, I have cautiously avoided any reference to the nature of the evidence, from which the facts that relate to the riots are collected, or to the conduct which the Government of the United States may pursue on this important occasion. I have hitherto, indeed, only spoken as the Executive Magistrate of Pennsylvania, charged with a general superintendance and care that the laws of the Commonwealth be faithfully executed, leaving it as I ought implicitly to your judgment, to chuse on such evidence as you approve, the measures for discharging the analagous trust which is confided to you in relation to the laws of the Union. But before I conclude, it is proper under the impression of my Federal obligations, to add a full and unequivocal assurance, that whatever requisition you may make, whatever duty you may impose, in pursuance of your Constitutional and legal powers, will on my part be promptly undertaken, and faithfully discharged. I have the honor to be, With perfect respect, Sir, Your Excellency’s Most Obedt Hble Servt
LS, DLC: Pennsylvania Whiskey Rebellion Collection; Df, PHarH: Executive Correspondence, 1790-99; LB, PHarH: Executive Letterbooks; copy, DNA: RG 46, Third Congress, 1793-95, Senate Records of Legislative Proceedings, President’s Messages. The copy, which was transmitted to the Senate in support of GW’s message to Congress of 19 Nov., is certified by State Department clerk George Taylor, Jr., as a "True Copy." The draft, which is partly in the writing of a clerk and partly in the writing of Pennsylvania secretary of the commonwealth Alexander James Dallas, was heavily revised. The most significant deletions are discussed in notes 2 through 5 below.
Secretary of State Edmund Randolph replied to this letter on 7 Aug., stating "that the course, which has been suggested by you, as proper to be pursued, seems to have contemplated Pennsylvania in a light too separate and unconnected. The propriety of that course, in most, if not in all respects, would be susceptible of little question; if there were no Fœderal Government, Fœderal Laws, Fœderal Judiciary, or Fœderal Officers; if important laws of the United States, by a series of violent, as well as of artful expedients, had not been frustrated in their execution for more than three years; if officers immediately charged with that execution, after suffering much and repeated insult, abuse, personal ill treatment, and the destruction of property, had not been compelled for safety to fly the places of their residence, and the scenes of their official duties; if the service of the processes of a Court of the United States, had not been resisted, the marshal of the District made and detained some for time prisoner and compelled for safety also to abandon the performance of his duty, and return by a circuitous route to the Seat of Government"; if a judge had not determined that the laws were opposed by combinations too powerful to be suppressed by ordinary measures. The "current of the observations" in Mifflin’s letter, "especially as to the consequences which may result from the employment of coercive measures previous to the preliminary course which is indicated in it, may be construed to imply a virtual disapprobation of that plan of conduct on the part of the General Government in the actual Stage of its affairs, which you acknowledge would be proper on the part of the government of Pennsylvania if arrived at a similar stage."
Quoting Mifflin’s string of questions about the possible bad effects of federal action, Randolph responded, "These important questions naturally give birth to the following serious reflections. The issues of human affairs are in the hand of Providence. Those entrusted with them in society have no other sure guide than the sincere and faithful discharge of their duty, according to the best of their judgments—In emergencies great and difficult; not to act with an energy proportioned to their magnitude and pressure, is as dangerous as any other conceivable course. In the present case, not to exert the means, which the laws prescribe for effectuating their own execution, would be to sacrifice those laws and with them the Constitution, the Government, the principles of social order, and the bulwarks of private right and security. What worse can happen from the exertion of those means"? If the citizens wished to support the Constitution and the officers of government would do their duty, "then the enterprise to be accomplished can hardly ever be deemed difficult." If, to the contrary, "the great Body of the people should be found indifferent to the preservation of the Government of the Union, or insensible to the necessity of vigorous exertions to repel the danger, which threatens their most important interests, or if an unwillingness to encounter partial inconveniences should interfere with the discharge of what they owe to their permanent welfare or if either yielding to the suggestions of particular prejudices, or misled by the arts which may be employed, to infuse jealousy and discontent, they should suffer their zeal for the support of public order to be relaxed by an unfavorable opinion of the merits and tendency of the measures, which may be adopted, if above all, it were possible, that any of the state Governments should instead of prompting the exertions of the Citizens assist directly or indirectly in damping their ardor, by giving a wrong biass to their judgment—or by disseminating dissatisfaction with the proceedings of the General Government, or should counteract the success of those proceedings by any sinister influence whatever—then indeed no one can calculate, or may be able to avert, the fatal evils with which such a state of things would be pregnant. Then indeed, the foundations of our political happiness may be deeply shaken, if not altogether overturned." GW, however, "cherishes an unqualified confidence in the virtue and good sense of the people, in the integrity and patriotism of the Officers of the state Governments—and he counts absolutely on the same affectionate support, which he has experienced upon all former occasions, and which he is conscious that the goodness of his intentions now, not less than heretofore, merits."
Randolph then reviewed the evidence that the laws could not be enforced in the effective counties and concluded that Mifflin’s "mature reflection" must "acquiesce" in that opinion and concur with GW’s expectation that he would receive "the zealous cooperation of the militia of Pennsylvania" to enforce the law.
Nor, Randolph continued, could GW "without an abdication of the undoubted rights and authorities of the United States and of his Duty, postpone the measures, for which the laws of the United States provide, to a previous experiment of the plan which is delineated in your letter." The people of the United States, having established a government, "could never be expected to approve that the care of vindicating their authority, of enforcing their laws, should be transferred from the officers of their own Government to those of a State," particularly for "a process so undeterminate in its duration, as that which it is proposed to pursue."
Randolph noted that while GW was preparing for coercion, he hoped to avoid its necessity by "sending himself Commissioners to the discontented Counties to make one more experiment of a conciliatory appeal to the reason, virtue and patriotism of their inhabitants" (PHarH: Executive Correspondence, 1790-99; see also ASP, Miscellaneous 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 , 1:99-101). For a draft of that letter in the writing of Alexander Hamilton, see Hamilton Papers description begins Harold C. Syrett et al., eds. The Papers of Alexander Hamilton. 27 vols. New York, 1961–87. description ends , 17:61-72.
1. According to Dallas’s notes, at the meeting on 2 Aug., GW and his cabinet met with Mifflin, Dallas, Pennsylvania chief justice Thomas McKean, and Pennsylvania attorney general Jared Ingersoll. GW "opened the business by stating, that it was hardly necessary to preface th[e] subject of the conference, as it was generally understood, and the circumstances which accompanied it were such as to strike at the root of all law & order; That he was clearly of opinion that the most spirited & firm measures were necessary to rescue the State as well as the General Government from the impending danger; for if such proceedings were tolerated there was an end to our Constitution’s & laws." After presenting evidence of the activities of those opposed to the excise tax in western Pennsylvania, he "declared his determination to go every length that the Constitution and laws would permit, but no farther; he expressed a wish for the co-operation of the State Government; and he enquired wether the Governor could not adopt some preliminary measures under the State laws; as the measures of the Genl Gov. would be slow, and depended on the Certificate of Judge Wilson, to whom the documents had been delivered for his consideration."
After this request and another from Randolph were met by silence from the Pennsylvania officers, Attorney General William Bradford suggested a law under which they might act, only to be told the law had been repealed. Finally, in response to a direct question, Dallas did give a "private opinion" that if the civil authority was unable to enforce the laws, "the very nature of the Executive Magistrates duty and obligations, required" that the governor "should aid the Civil authority, by an exertion of the military force of the Government."
After GW declared an "intention of proceeding against the Rioters in allegheney Co.," McKean expressed "his positive opinion, that the judiciary power was equal to the task of quelling and punishing the riots; and that the employment of a military force at this period, would be as bad as anything that the Rioters had done—equally unconstitutional and illegal."
Hamilton then argued "the general necessity of maintaining the Government in its regular authority. . . . and insisted upon the propriety of an immediate resort to military force. He said, that it would not be sufficient to quel the existing riot; to restore us to the state in which we were a few weeks back; for, before the present outrages, there was equal opposition to the laws of the U.S. though not expressed in the same manner: but that now the crisis was arrived when it must [be] determined whether the Government can maintain itself; and that the exertion must be made not only to quel the rioters, but to protect the officers of the Union in executing their offices, and in compelling obedience to the laws."
Dallas responded by observing that Judge Alexander Addison of western Pennsylvania "had declared it as his opinion that if the business was left to the Courts, the Rioters might be prosecuted and punished, and the matter peaceably terminated; but that a resort to military force, would unite in the resistance, the peaceable, as well as the riotous opponents of the Excise, upon the idea that the military was intended to dragoon them equally into submission." To this, Hamilton responded that Addison "was among those, who had most promoted the opposition in an insidious manner." Any further discussion was not recorded in the notes (PHarH: Executive Correspondence, 1790-99; see also Pa. Archives description begins Samuel Hazard et al., eds. Pennsylvania Archives. 9 ser., 138 vols. Philadelphia and Harrisburg, 1852–1949. description ends , 2d ser., 4:122-24).
4. At this point on the draft, text was struck out. It began, "Let it, then, be considered, whether the courts of the United States have failed in any exertion to prosecute the Offenders in the late riots; or whether (regarded with a dispassionate eye) the treatment which the Marshal received, while he was the companion of Genl Nevill, is in itself such conclusive proof of the inefficacy of Judiciary process, for the punishment of the Rioters, as to demand, at this time, a military aid from the Executive Magistrate of the Union?" The excised text continued with language that Mifflin later used in his letter to GW of 12 Aug. (see n.16 to that document).
5. At this point on the draft the clerk began a new section that reads: "2. From these considerations, I have been induced to think, Sir, that the attempts to punish the late violent infraction of the laws, have not been such as to evince the futility of Judiciary process, and that for that reason alone, the immediate exertion of military force might be deemed premature. But considering the subject in the second place as it regards the causes that have produced and will probably protract the disorder, there appears to me to arise"; if the clerk continued that section, those pages evidently were discarded. The remainder of the draft is in Dallas’s writing.
6. According to Edmund Randolph’s Vindication of Mr. Randolph’s Resignation (Philadelphia, 1795), 81-82, suspicions of British influence were supported by a letter "from Kentucky, giving an account of the British government fomenting disturbances there" and an "affidavit of a person from Pittsburg . . . corroborating the suspicions, that the British were abetting the insurgents." Neither document has been identified, although it is possible that the Kentucky letter was Charles Mynn Thruston’s letter to GW of 21 June.
7. For these letters, both of which were signed by Dallas and dated 25 July, see Pa. Archives description begins Samuel Hazard et al., eds. Pennsylvania Archives. 9 ser., 138 vols. Philadelphia and Harrisburg, 1852–1949. description ends , 2d ser., 4:65-66.
8. Mifflin issued a proclamation of this description on 7 Aug. (Pa. Archives description begins Samuel Hazard et al., eds. Pennsylvania Archives. 9 ser., 138 vols. Philadelphia and Harrisburg, 1852–1949. description ends , 2d ser., 4:108-10).
9. On 6 Aug., Mifflin wrote Pennsylvania chief justice Thomas McKean and militia general William Irvine to request that they serve as commissioners for this purpose (Pa. Archives description begins Samuel Hazard et al., eds. Pennsylvania Archives. 9 ser., 138 vols. Philadelphia and Harrisburg, 1852–1949. description ends , 2d ser., 4:93-94).