From Thomas Mifflin
Philadelphia, 12th August 1794
The Secretary of State has transmitted to me, in a letter dated the 7th of August (but only received yesterday) your reply to my letter of the 5th instant.1
For a variety of reasons, it might be desireable, at this time, to avoid an extension of our correspondence, upon the subject to which those letters particularly relate; but the nature of the remarks contained in your reply, and the sincerity of my desire to merit, on the clearest principles, the confidence, which you are pleased to repose in me, will justify, even under the present circumstances of the case, an attempt to explain any ambiguity, and to remove any prejudice, that may have arisen, either from an inaccurate expression, or an accidental misconception, of the sentiments and views, which I meant to communicate.
That the course, which I have suggested as proper to be pursued, in relation to the recent disturbances in the western parts of Pennsylvania, contemplates the State, in a light too separate and unconnected, is a position, that I certainly did not intend to sanction, in any degree, that could wound your mind with a sentiment of regret. In submitting the construction of the facts, which must regulate the operations of the General Government, implicitly to your judgment; in cautiously avoiding any reference to the nature of the evidence, from which those facts are collected, or to the conduct which the United States might pursue; in declaring that I spoke only as the Executive Magistrate of the State, charged with a general superintendance and care, that its laws be faithfully executed; and, above all, in giving a full and unequivocal assurance, that whatever requisition you may make, whatever duty you may impose, in pursuance of your Constituted and legal powers, would, on my part, be promptly undertaken, and faithfully discharged; I thought that I had manifested the strongest sense of my Federal obligations, and that, so far from regarding the State in a separate and unconnected light, I had expressly recognized the subjection of her individual authority, to the national jurisdiction of the Union.2
It is true, however, Sir, that I have only spoken as the Executive Magistrate of the State; but, in that character, it is a high gratification to find, that according to your opinion likewise, "the propriety of the course which I suggested, would in most, if not in all respects, be susceptible of little question".3 Permit me then to ask, in what other character could I have spoken or what other language did the occasion require to be employed? If the co-operation of the Government of Pennsylvania was the object of our conference, your constitutional requisition as the Executive of the Union, and my official compliance as the Executive of the State, would indubitably ensure it: but, if a preliminary, a separate, an unconnected conduct was expected to be pursued by the Executive Magistrate of Pennsylvania, his separate and unconnected power and discretion must furnish the rule of proceeding; and by that rule, agreeably to the admission which I have cited, "the propriety of my course would in most, if not in all, respects, be susceptible of little question." It must, therefore, in justice be remembered, that a principal point in our conference, related to the expediency of my adopting, independent of the General Government, a preliminary measure (as it was then termed) under the authority of an Act of the Legislature of Pennsylvania, which was passed on the 22nd day of September 1783; & which the Attorney General of the United states, thought to be in force, but which had, in fact, been repealed on the 11th of April 1793.4
Upon the strictest idea of co-operative measures, however, I do not conceive, Sir, that any other plan could have been suggested, consistently with the powers of the Executive Magistrate of Pennsylvania, or with a reasonable attention on my part to a systematic and energetic course of proceeding. The complicated nature of the outrage which was committed upon the public peace gave a jurisdiction to both Governments; but in the mode of prosecuting, or in the degree of punishing the offenders, that circumstance could not, I apprehend, alter or enlarge the powers of either. The State (as I observed in my last letter)5 could only exert itself in executing the laws, or maintaining the authority of the Union, by the same means which she employed to execute and maintain her more peculiarly municipal laws and authority and hence I inferred, and still venture to infer, that if the course which I have suggested is the same that would have been pursued, had the riot been unconnected with the system of Federal policy, its propriety cannot be rendered questionable, merely by taking into our view (what I have never ceased to contemplate) the existence of a Federal Government, Federal laws, Federal Judiciary, and Federal Officers. But would it have been thought more consonant with the principles of co-operation, had I issued orders for an immediate, a separate, and an unconnected call of the militia, under the special authority, which was supposed to be given by a law, or under the general authority, which may be presumed to result from the Constitution? Let it be considered, that you had already determined to exercise your legal powers in drafting a competent force of the Militia; and it will be allowed, that if I had undertaken, not only to comply promptly with your requisition, but to embody a distinct corps for the same service, an useless expence would have been incurred by the State, an unnecessary burthen would have been imposed on the Citizens, and embarrassmt and confusion would probably have been introduced, instea<d> of system and co-operation.6 Regarding it in this point of light, indeed, it might be natural to think, that in the Judiciary, as well as in the Military, departmen<t,> the subject should be left entirely to the management, either of the State, or of the General Government; for "the very important difference which is supposed to exist in the nature and consequences of the offences that have been committed, in the contemplation of the laws of the United States, and of those of Pennsylvania", must otherwise destroy that uniformity in the definition of crimes, and the apportionment of punishments, which has always been deemed essential to a due administration of justice.
But let me not, Sir, be again misunderstood: I do not mean by these observations to intimate an opinion, or to express a wish, that "the care of vindicating the authority, or of enforcing the laws of the Union, should be transferred from the Officers of the General Government to those of the State": nor, after expressly avowing, that I had cautiously avoided any reference to the conduct, which the Government of the United States might pursue on this important occasion, did I think an opportunity could be found, to infer that I was desirous of imposing a suspension of your proceedings, for the purpose of waiting the issue of the process, which I designed to pursue. "If, indeed, the Government of the United States was at that point, where, it is admitted, if the Government of Pennsylvania was, the employment of force by its authority would be justifiable", I am persuaded, that, on mature consideration, you will do more credit to my candor, than to suppose, that I meant to condemn or to prevent, the adoption of those measures, on the part of the General Government, which, in the same circumstances, I should have approved and promoted, on the part of Pennsylvania. The extracts that are introduced into the letter of the Secretary of State, in order to support that inference, can only be justly applied to the case, which was immediately in contemplation, the case of the State of Pennsylvania, whose Judiciary authority had not then, in my opinion, been sufficiently tried: They ought not surely to be applied to a case which I had cautiously excluded from my view, the case of the United States, whose Judiciary authority had, in your opinion, proved inadequate to the execution of the laws and the preservation of order: and if they shall be thus limited to their proper object, the justice and force of the argument which flows from them, can never be successfully controverted or denied. While you, Sir, were treading in the plain path designated by a positive law, with no other care than to preserve the forms, which the Legislature had prescribed, and relieved from a weight of responsibility by the legal operation of a Judge’s Certificate;7 I was called upon to act, not in conformity to a positive law, but in compliance with the duty, which is supposed to result from the nature and constitution of the Executive office.8 The Legislature had prescribed no forms to regulate my course; no certificate to inform my judgment; every step must be dictated by my own discretion; and every error of construction, or conduct, would be charged on my own character. Hence arose an essential difference in our official situations; and I am confident, that, on this ground alone, you will perceive a sufficient motive, for my considering the obligation, in point of law, to forbear the use of Military force ’till the Judiciary authority had been tried, as well as the probable effects, in point of policy, which that awful appeal might produce. For, Sir, it is certain, that at the time of our conference,9 there was no satisfactory evidence of the incompetency of the Judicial authority of Pennsylvania to vindicate the violated laws: I, therefore, could not, as Executive Magistrate, proceed upon a military plan; but, actuated by the genuine spirit of co-operation, not by a desire to sully the dignity, or to alienate the powers of the General Government, I still hoped and expected to be able on this, as on former occasions, to support the laws of the Union, or to punish the violaters of them, by an exertion of the Civil authority of the State Government, the State Judiciary, and the State Officers. This hope prompted the conciliatory course which I determined to pursue, and which, so far as respects the appointment of Commissioners, you have been pleased to incorporate with your plan: And if, after all, the purposes of justice could be attained, obedience to the laws could be restored, and the horrors of a civil war could be averted, by the auxiliary intervention of the State Government, I am persuaded you will join me in thinking, that the idea of placing the State in a separate and unconnected point of view, and the idea of making a transfer of the powers of the General Government, are not sufficiently clear, or cogent, to supersede such momentous considerations.
Having thus generally explained the principles contained in my letter of the 5th instant, permit me (without adverting to the material change that has since occurred in the state of our information, relatively to the riots; and which is calculated to produce a corresponding change of sentiments and conduct) to remark that many of the facts, that are mentioned by the Secretary of State, in order to shew that the Judiciary authority of the Union, after a fair and full experiment, had proved incompetent to enforce obedience, or to punish infractions, of the laws, were, before that communication, totally unknown to me. But, still, if it shall not be deemed a deviation from the restriction that I have determined to impose upon my correspondence, I would offer some doubts which, in that respect, occurred to my mind on the evidence, as it appeared at the time of our conference.10 When I found that the Marshal had, without molestation, executed his office in the county of Fayette; that he was never insulted or opposed till he acted in company with General Nevill; and that the virulence of the Rioters was directly manifested against the person and property of the latter Gentleman, and only incidentally against the person of the former, I thought there was ground yet to suppose (and, as long as it was reasonable, I wished to suppose) that a spirit of opposition to the Officers employed under the Excise-law, and not a spirit of opposition to the Officers employed in the administration of justice, was the immediate source of the outrages, which we deprecate.11 It is true, that these sources of opposition are equally reprehensible; and that their effects are alike unlawful: but on a question, respecting the power of the Judiciary authority, to enforce obedience, or to punish infractions of the law, it seemed to be12 material to discriminate between the cases alluded to, and to ascertain, with precision, the motives and the object of the Rioters. Again: As the Associate Judge had not at that time issued his Certificate, it was proper to scrutinize with strict attention the nature of the evidence on which an act of Government was to be founded. The Constitution of the Union, as well as of the State, had cautiously provided, even in the case of an individual, that "no warrant should issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized":13 and a much higher degree of caution might reasonably be exercised in a case, that involved a numerous body of Citizens in the imputation of treason, or felony, and required the substitution of Military, for the Judicial, instruments of co-ercion. The only affidavits that I recollect to have appeared, at the time of our conference, were those containing the hearsay of Colo. Mentges, and the vague narrative of the Post-Rider.14 The letters that had been received from a variety of respectable Citizens, not being written under the sanction of an oath or affirmation, could not acquire the legal force and validity of evidence, from a mere authentication of the signatures of the respective writers. Under such circumstances, doubts arose, not whether "the means which the laws prescribe for effectuating their own execution should be exerted", but whether the existence of a specific case, to which specific means of redress were appropriated by the laws, had been legally established; not whether "the laws, the Constitution, the Government, the principles of social order, and the bulwarks of private right and security should be sacrificed"; but whether the plan proposed was the best calculated to preserve those inestimable blessings: And recollecting a declaration which was made in your presence, "that it would not be enough for a military force to disperse the insurgents, and to restore matters to the situation in which they were two or three weeks before the riots were committed; but that the force must be continued, for the purpose of protecting the officers of the Revenue, and securing a perfect acquiescenc<e> in the obnoxious law",15 I confess, Sir, the motives to caution and deliberation strike my mind with accumulated force. I hope, however, that16 it will never seriously be contended that a military force ought now to be raised with any view, but to suppress the Rioters; or, that, if raised with that view, it ought to be employed for any other. The dispersion of the insurgents is, indeed, obviously the sole object, for which the Act of Congress has authorised the use of military force, on occasions like the present; for, with a generous and laudable precaution, it expressly provides, that even before that force may be called forth, a Proclamation shall be issued commanding the insurgents to disperse, and retire peaceably to their respective abodes within a limited time.17
But the force of these topics I again refer implicitly to your decision; convinced, Sir, that the goodness of your intentions now, not less than heretofore, merits an affectionate support from every description of your Fellow Citizens. For my own part, I derive a confidence from the heartfelt integrity of my views, the sincerity of my professions, which renders me invulnerable by any insinuation of practising a sinister or deceitful policy. I pretend not to infallibility in the exercise of my private judgment, or in the discharge of my public functions; but in the ardor of my attachment, and in the fidelity of my services, to our common Country, I feel no limitation. And Your Excellency, therefore, may justly be assured, that in every way, which the Constitutions of the United States and of Pennsylvania shall authorise and present, and future emergencies may require, you will receive my most cordial aid and support. I am, with perfect respect, Sir, Your Excellency’s Most Obedt Hble serv:
LS, DNA: RG 59, Miscellaneous Letters; 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; copy, DLC: Pennsylvania Whiskey Rebellion Collection. The copy in Senate records (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," and so is the copy in DLC.
Secretary of State Edmund Randolph replied to this letter on 30 Aug. (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 , 1:104-6). A draft for that reply, in the writing of Alexander Hamilton, is printed in Hamilton Papers description begins Harold C. Syrett et al., eds. The Papers of Alexander Hamilton. 27 vols. New York, 1961–87. description ends , 17:163-67. Randolph’s responses to particular points in this letter appear in notes 2, 6, 8, 10, 11, and 17 below.
2. Randolph responded: "having informed you that the matter was before an Associate Justice . . . and having pointed what was said respecting a preliminary proceeding on your part to a call of the militia under the authority of a State-law, by anticipation of a requisition of the General Government . . . It was not natural to expect, that you would have presented a plan of conduct entirely on the basis of the State-Government even to the extent of resorting to the Legislature of Pennsylvania, after its judiciary had proved incompetent, ’to prescribe . . . the means of subduing the spirit of insurrection and of restoring tranquility and order’; a plan, which being incompatible with the course marked out in the laws of the United States, evidently could not have been acceded to without a suspension, for a long and indefinite period, of the movements of the federal Executive pursuant to those laws. . . . Was it extraordinary then, that the plan suggested should have been unexpected, and that it should even have been thought liable to the observation of having contemplated Pennsylvania in a light too separate and unconnected?"
3. This quotation and the other quotations in this letter that are not individually annotated are taken from Randolph’s letter to Mifflin of 7 August.
4. "An Additional Supplement to an Act entituled ’An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania,’" 22 Sept. 1793, empowered the Supreme Executive Council, "when it may be necessary and expedient for the Support of the civil Authority in preserving Peace and good Order within the Commonwealth, to order into immediate and actual Service the whole or such Part of the Militia of the City of Philadelphia, or of any County or Counties, as the Exigency of the Case may require" (Pa. Laws, August-September 1783, 222-23). That act was repealed by "An Act for the regulation of the Militia of the commonwealth of Pennsylvania," 11 April 1793, which instead authorized the governor to call out militia "in case of rebellion, or of an actual or threatened invasion of this or any of the neighbouring states" (Pa. Acts, 1792-93, 394-414).
6. In Randolph’s reply he denied that GW had "already determined" to call up the militia, noting that at the time of the conference the judge’s certificate had not been issued. Furthermore, "Your embodying the militia independent of a requisition from the President was never thought of, except as a preliminary and auxilary step. Had it taken place when the requisition came, the corps embodied would have been ready towards a compliance with it, and no one of the inconveniences suggested could possibly have arisen."
8. Here Randolph observed that "it would have been more correct to have said ’You was called upon to be consulted whether you had power in the given case to call forth the militia.’"
10. The text from this point to "unlawful" largely uses material written for the draft of Mifflin’s letter to GW of 5 Aug. but cut from that letter. In reply Randolph noted Mifflin’s doubts about the evidence and responded, "As the laws of the United States have referred the evidence in such cases to the judgment of a District Judge or associate Justice . . . The President would not sanction a discussion of the standard or measure, by which evidence in those cases ought to be governed." He nonetheless took direct issue with Mifflin’s first argument (see the next note).
11. Randolph responded, "It is natural to inquire how this supposition could consist with the additional facts which appeared by the same evidence namely, that the Marshal having been afterwards made prisoner by the rioters had been compelled, for obtaining safety and liberty, to promise to execute no more processes within the discontented scene and that . . . in consequence of a deputation of the rioters deliberately sent to demand a surrender of the processes in his possession enforced by a threat, he had found it necessary to seek security in withdrawing by a secret and circuitous route—did not these circumstances unequivocally denote that officers employed in the administration of Justice were as much objects of opposition as those employed in the execution of the particular laws?"
13. This provision appears in the Fourth Amendment to the U.S. Constitution; similar language appears in Article IX, section 8, of the Pennsylvania constitution of 1790.
15. This quotation probably is drawn from Alexander Hamilton’s remarks at the conference of 2 Aug., although only the substance and not the exact words appear in Alexander James Dallas’s notes (see Mifflin to GW, 5 Aug., n.1.).
17. Mifflin was referring to "An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions," 2 May 1792 (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).
Randolph’s reply concluded by considering as a point "of great importance" Mifflin’s view "that the mere dispersion of the Insurgents is the sole object for which the militia can be lawfully called out, or kept in service after they may have been called out." He argued that both the Constitution, in Article I, section 8, and the law of 2 May 1792 contemplate the use of militia "to cause the laws to be duly executed." He then asked, "Would the mere dispersion of Insurgents and their retiring to their respective homes do this? would it satisfy either member of the provision, the suppression of the combinations, or the execution of the laws? Might not the former, notwithstanding the dispersion, continue in full vigour, ready at any moment to break out into new acts of resistance to the laws? Are the militia to be kept perpetually marching and countermarching, towards the insurgents while they are embodied and from them when they have separated and retired? . . . Such a construction of the law, if true, were certainly a very unfortunate one, rendering its provisions essentially nugatory, and leading to endless expense and as endless disappointment. . . . Thus far the spirit as well as the positive letter of the law combats the construction which you have adopted."
Randolph then argued that the requirement that the president issue a proclamation ordering dispersal does not "affirm" or "even necessarily imply, that the militia after the dispersion and retiring, are not to be used for the purpose for which they are authorized to be called forth, that is ’to cause the laws to be duly executed.’" The provision might "be regarded as a merely humane and prudent precaution, to distinguish previous to the actual application of force a hasty tumult from a deliberate insurrection" and to give those "accidently or inadvertently mingled" in the tumult an opportunity to withdraw.