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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 Presby Neville, that he would serve no other process on the west side of the Allegany 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 wbich 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 upon the laws of the Union, 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 bad 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 that 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 any where, 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 presupposes 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 cooperation. But both 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 towards a compliance with it, and no one of the inconveniences suggested could possibly have arisen.
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.