secretary of state to mifflin
Draft by Hamilton.
I am directed by the President to acknowledge the receipt on the 17th of your excellency’s letter, dated on the 12th instant.
The President feels with you the force of the motives which render undesirable an extension of correspondence on the subject in question. But the case being truly one of great importance and delicacy, these motives must yield in a degree to the propriety and utility of giving precision to every part of the transaction, and guarding effectually against ultimate misapprehension.
To this end it is deemed advisable, in the first place, to state some facts, which either do not appear, or are conceived not to have assumed an accurate shape in your excellency’s letter. They are these:
- 1. You were informed at the conference that all the information which had been received had been laid before an associate justice, in order that he might consider and determine whether such a case as is contemplated by the second section of the act, which provides for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions, had occurred; that is, whether combinations existed too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshal by that act; in which case the President is authorized to call forth the militia to suppress the combinations and to cause the laws to be duly executed.
- 2. The idea of a preliminary proceeding by you was pointed to an eventual co-operation with the Executive of the United States, in such plan as, upon mature deliberation, should be deemed advisable, in conformity with the laws of the Union. The inquiry was particularly directed towards the possibility of some previous accessory step in relation to the militia, to expedite the calling them forth if an acceleration should be judged expedient and proper, and if any delay on the score of evidence should attend the notification from a judge, which the laws make the condition of the power of the President to require the aid of the militia, and turned more especially upon the point whether the law of Pennsylvania, of the 22d September, 1783, was or was not still in force. The question emphatically was: Has the executive of Pennsylvania power to put the militia in motion, previous to a requisition from the President, under the laws of the Union, if it shall be thought advisable so to do? Indeed it seems to be admitted by one part of your letter, that the preliminary measure contemplated did turn on this question, and with a particular eye to the authority and existence of the act just mentioned.
- 3. The information contained in the papers read at the conference, besides the violence offered to the marshal while in company with the inspector of the revenue, established that the marshal had been afterwards made prisoner by the insurgents, put in jeopardy of his life, had been obliged to obtain safety and liberty by a promise, guaranteed by Colonel Presley Neville, that he would serve no other process on the west side of the Alleghany Mountains; that, in addition to this, a deputation of the insurgents had gone to Pittsburgh, to demand of the marshal a surrender of the processes in his possession, under the intimation that it would satisfy the people and add to his safety, which necessarily implied that he would be in danger of further violence without such a surrender; that under the influence of this menace, he had found it necessary to seek security by taking, secretly, and in the night, a circuitous route.
This recapitulation is not made to invalidate the explanation offered in your last letter, of the view of the subject which you assert to have led to the suggestions contained in your first, and of the sense which you wish to be received as that of the observations accompanying those suggestions. It is intended solely to manifest that it was natural for the President to regard your communication of the 5th instant in the light under which it is presented in the reply to it.
For having informed you that the matter was before an associate justice, with a view to the law of the United States, which has been mentioned, and having pointed out 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 from the General Government, and in co-operation with an eventual plan to be founded on the laws of the Union, it was not natural to expect that it 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 by their wisdom and authority the means of subduing the spirit of insurrection and of restoring tranquillity 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. The repugnancy and incompatibility of the two modes of proceeding at the same time cannot, it is presumed, be made a question.
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?
The propriety of the remark, “that it was impossible not to think the current of the observations in your letter might be construed to imply a virtual disapprobation of that plan of conduct on the part of the Government of Pennsylvania, if arrived at a similar stage,” must be referred to the general tenor and complexion of those observations, and to the inference they were naturally calculated to inculcate. If this inference was, that under the known circumstances of the case, the employment of force to suppress the insurrection was improper, without a long train of preparatory expedients; and if, in fact, the Government of the United States (which has not been controverted) was at that point where it was admitted that the Government of Pennsylvania being arrived the resort to force on its part would be proper, the impression which was made could not have been effaced by the consideration that the forms of referring what concerned the government of the Union to the judgment of its own Executive, were carefully observed. There was no difficulty in reconciling the intimation of an opinion unfavorable to a particular course of proceeding, with an explicit reference of the subject (officially speaking) to the judgment of the officer charged by the Constitution to decide, and with a sincere recognition of the subjection of the individual authority of the State to the national jurisdiction of the Union.
The disavowal by your excellency of an intention to sanction the inference which was drawn, renders what has been said a mere explanation of the cause of that inference, and of the impressions which it at first made.
It would be foreign to the object of this letter to discuss the various observations, which have been adduced to obviate a misapprehension of your views, and to maintain the propriety of the course pursued in your first communication. It is far more pleasing to the President to understand you in the sense you desire, and to conclude that no opinion has been indicated by you inconsistent with that which he has entertained of the state of things and of his duty in relation to it. And he remarks, with satisfaction, the effect which subsequent information is supposed to be calculated to produce favoring an approximation of sentiments.
But there are a few miscellaneous points which, more effectually to prevent misconceptions anywhere, seem to demand a cursory notice.
You observe that the President had already determined to exercise his legal powers in drafting a competent force of the militia. At the point of time to which you are understood to refer—namely, that of the conference, the President had no legal power to call forth the militia. No judge had yet pronounced that a case justifying the exercise of that power existed. You must be sensible, sir, that all idea of your calling out the militia by your authority, was referred to a state of things antecedent to the lawful capacity of the President to do it by his own authority; and when he had once determined upon the call, pursuant to his legal powers, it were absurd to have proposed to you a separate and unconnected call. How, too, it might be asked, could such a determination, if it had been made, and was known to you, have comported with the plan suggested in your letter, which pre-supposes that the employment of force had not already been determined upon?
This passage of your letter is, therefore, considered to mean only that the President had manifested an opinion predicated upon the event of such a notification from a judge as the law prescribes, that the nature of the case was such as would probably require the employment of force. You will also, it is believed, recollect that he had not at the time finally determined upon any thing, and that the conference ended with referring the whole subject to further consideration.
You say, that if you had undertaken not only to comply promptly with the President’s requisition, but to embody a distinct corps for the same service, a useless expense would have been incurred by the State, an unnecessary burden would have been imposed on the citizens, and embarrassment and confusion would probably have been introduced instead of system and co-operation. But they were never expected. Your embodying the militia independent of a requisition from the President, was never thought of, except as a preliminary and auxiliary step. Had it taken place when the requisition came, the corps embodied would have been ready toward a compliance with it, and no one of the inconveniences suggested could possibly have risen.
You say, in another place, that you “were 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.” It is conceived that it would have been more correct to have said, “you were called upon to be consulted whether you had power in the given case to call forth the militia without a previous requisition from the General Government.” The supposition that you might possess this power was referred to a law of Pennsylvania, which appeared, on examination, to have been repealed. A gentleman who accompanied you thought that the power, after a due notification of the incompetency of the judiciary, might be deduced from the nature and constitution of the executive office.
It has appeared to your excellency fit and expedient to animadvert upon the nature of the evidence produced at the conference, and to express some doubts which had occurred to your mind concerning it.
As the laws of the United States have referred the evidence in such cases to the judgment of a district judge, or associate justice, and, foreseeing that circumstances so peculiar might arise as to render rules relating to the ordinary and peaceable state of society inapplicable, have forborne to prescribe any, leaving it to the understanding and conscience of the judge, upon his responsibility, to pronounce what kind and degree of evidence should suffice, the President would not sanction a discussion of the standard or measure by which evidence in those cases ought to be governed. He would restrain himself by the reflection that this appertains to the province of another, and that he might rely as a guide upon the decision which should be made by the proper organ of the laws for that purpose.
But it may be no deviation from this rule to notice to you that the facts stated in the beginning of this letter, under the third head, appear to have been overlooked in your survey of the evidence, while they seem to be far from immaterial to a just estimate of it.
You remark that “when you found that the marshal had, without molestation, executed his office in the county of Fayette, that he never was insulted or opposed till he acted in company with General Neville, 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, you thought there was ground yet 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 are deprecated.”
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 afterward 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 subsequently again to this, 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, and that the rioters were at least consistent in their plan?
It must needs be, that these facts escaped your excellency’s attention, else they are too material to have been omitted in your review of the evidence, and too conclusive not to have set aside the supposition which you entertained, and which seemed to have had so great a share in your general view of the subject.
There remains only one point on which your excellency will be longer detained—a point, indeed, of great importance, and which consequently demands serious and careful reflection. It is the opinion you so emphatically express, that the mere dispersion of the insurgents is the sole object for which the militia can be called out, or kept in service after they may have been called out.
The President reserves to the last moment the consideration and decision of this point.
But there are arguments weighing heavily against the opinion you have expressed, which, in the meantime, are offered to your candid consideration.
The Constitution of the United States (article 1, section 8) empowers Congress “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” evidently, from the wording and distribution of the sentence, contemplating the execution of the laws of the Union as a thing distinct from the suppression of insurrections.
The act of May 2, 1792, for carrying the provision of the Constitution into effect, adopts for its title the very words of the Constitution, being “An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” continuing the constitutional distinction.
The first section of the act provides for the cases of invasion and of insurrection, confining the latter to the case of insurrection against the government of a State. The second section provides for the case of the execution of the laws being obstructed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals.
The words are these: “Whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States by an associate judge, or the district judge, it shall be lawful for the President of the United States to call forth the militia of such State to suppress such combinations, and to cause the laws to be duly executed.” Then follows a provision for calling forth the militia of other States.
The terms of this section appear to contemplate and describe something that may be less than insurrection. “The combinations” mentioned may indeed amount to insurrections, but it is conceivable that they may stop at associations not to comply with the law, supported by riots, assassinations, and murders, and by a general spirit in a part of the community, which may baffle the ordinary judiciary means, with no other aid than the posse comitatus, magistrates, and officers in the execution of their duty. And the objects for which the militia are to be called are expressly not only to suppress these combinations (whether amounting to insurrections or not), but to cause the laws to be duly executed.
It is therefore plainly contrary to the manifest general intent of the Constitution and of this act, and to the positive and express terms of the second section of the act, to say that the militia called forth are not to be continued in service for the purpose of causing the laws to be duly executed, and, of course, till they are so executed.
What is the main and ultimate object of calling forth the militia? “To cause the laws to be executed.” Which are the laws to be executed? Those which are opposed and obstructed in their execution by the combinations described in the present case—the laws laying duties upon spirits distilled within the United States, and upon stills; and incidentally those which uphold the judiciary functions. When are the laws executed? Clearly, when the opposition is subdued; when penalties for disobedience can be enforced; when a compliance is effectuated.
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 vigor, ready at any moment to break out into new acts of resistance to the laws? Are the militia to be kept perpetually marching and counter-marching towards the insurgents while they are embodied, and from them when they have separated and retired? Suppose the insurgents, hardy enough to wait the experiment of a battle, are vanquished, and then disperse and retire home, are the militia immediately to retire also? to give them an opportunity to reassemble, recruit, and prepare for another battle? And is this to go on, and be repeated without limit?
Such 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. It could hardly be advisable to vex the militia, by marching them to a distant point, where they might scarcely be arrived before it would be legally necessary for them to return, not in consequence of having effected their object—of having “caused the laws to be executed,”—but in consequence of the mere stratagem of a deceitful dispersion and retiring.
Thus far the spirit as well as the positive letter of the law combats the construction which you have adopted. It remains to see if there be any other part of it which compels to a renunciation both of the letter and spirit of the antecedent provisions.
The part which seems to be relied upon for this effect, is the third section, which by way of proviso enjoins, “That whenever it may be necessary, in the judgment of the President, to use the military force by that act directed to be called forth, he shall, forthwith, and previous thereto, by proclamation, command the insurgents to disperse and retire peaceably to their respective abodes, within a limited time.” But does this affirm, does it necessarily even imply, that they, 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,” to countenance by their presence, and, in case of further resistance, to protect and support by their strength, the respective civil officers in the execution of their several duties, whether for bringing delinquents to punishment, or otherwise for giving effect to the laws? May not the injunction of this section 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? to give an opportunity for those who may be accidentally or inadvertently mingled in a tumult or disorderly rising, to separate and withdraw from those who are designedly and deliberately actors? to prevent, if possible, bloodshed in a conflict of arms, and, if this cannot be done, to render the necessity of it palpable, by a premonition to the insurgents to disperse and go home? And are not all these objects compatible with the further employment of the militia for the ulterior purpose of causing the laws to be executed in the way which has been mentioned? If they present a rational end for the proviso, without defeating the main design of the antecedent provision, it is clear they ought to limit the sense of the former, and exclude a construction which must make the principal provision nugatory.
Do not the rules of law and reason unite in declaring that the different parts of a statute shall be so construed, as, if possible, to consist with each other; that a proviso ought not to be understood or allowed to operate in a sense tending to defeat the principal clause; and that an implication (if, indeed, there be any such implication as is supposed in the present case) ought not to overrule an express provision, especially at the sacrifice of the manifest general intent of a law, which, in the present case, undoubtedly is, that the militia shall be called forth “to cause the laws to be duly executed”?
Though not very material to the merit of the argument, it may be remarked, that the proviso which forms the third section, contemplates merely the case of insurrection. If the combinations described in the second section may be less than insurrection, then the proviso is not commensurate with the whole case contained in the second section, which would be an additional circumstance to prove that it cannot work an effect which shall be a substitute for the main purpose of the first section.
I have the honor to be, with perfect respect, sir, your excellency’s most obedient servant.