To George Washington from Edmund Randolph, 11 March 1794
From Edmund Randolph
Philadelphia March 11. 1794.
Sir
The minutes, which were made yesterday at the conference in your room, did not permit an insertion of the reasons, upon which my dissent from the fourth proposition was founded.1 As I shall always contend, for what I conceive to be the constitutional and legal powers of the government; so I beg leave to request, upon this truly important subject, that you will suffer this letter to be filed away, with the paper, containing the opinions.
My reasons against the instruction, advised to be given to general Wayne, to post a body of regular troops at Massac, and by force, if necessary, to prevent the party of Kentucky citizens, who are supposed to meditate an invasion of the Spanish dominions, from proceeding, are the following.
1. Those troops were raised, and destined by law, exclusively for other purposes.
2. The law of the land, and not an army, is to be resorted to, for the punishment of citizens of the U.S., who may be charged with crimes. Regular proof too ought to precede punishment.
3. The sense of a committee at least of the senate appears to be the same; because a bill is actually depending before them for giving the power to the President to use military force on such an occasion. This would not have been necessary, if the power existed already.2
4. The present case is not an invasion from a foreign nation, in the grammatical, legal or constitutional impo⟨rt.⟩
5. If it were an insurrection, the President is restricted by a law of May 2. 1792 from interposing even with militia, except upon the application of the legislature or executive of Kentucky.3
6. The marshals and their deputies have the same power, as sheriffs, to call out the posse comitatus.4
7. If a combination to obstruct the laws be too powerful, the President cannot draw forth even the militia, but upon a notifi cation from a judge of the supreme or district courts.5
8. If the blood of the citizens of Kentucky should be shed under the order, now advised, it will I fear terminate in a revolt of that country, and a separation from the Union; and
9. The probability is, that the attempt, which was begun, is at an end, for the present; and it is at any rate better to wait and see, what power congress may give, rather than to hazard so doubtful an one on so critical an occasion. I have the honor, sir, to be with the highest respect yr mo. ob. serv.
Edm: Randolph
ALS, DLC:GW; LB, DNA: RG 59, Domestic Letters. GW’s docket reads, “Opinion of the Secretary of State 11th March 1794 against applying Military force to oppose the meditated Expedition from the State of Kentuck against the Spaniards on the Mississippi.” The text in angle brackets is from the letter-book copy.
1. For these minutes, see the Cabinet Opinion of 10 March.
2. Section 7 of “An Act in addition to the act for the punishment of certain crimes against the United States,” 5 June 1794, granted specific powers to “the President of the United States, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States or for the militia thereof as shall be judged necessary . . . for the purpose of preventing the carrying on of any such expedition or enterprise from the territories of the United States against the territories or dominions of a foreign prince or state, with whom the United States are at peace” (. 1:381–84).
3. See Section 1 of “An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions,” 2 May 1792 (. 1:264).
4. See Section 9 of “An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions,” 2 May 1792 (. 1:265).
5. For this provision, see Section 2 of “An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions,” 2 May 1792 (. 1:264).