Bradford, William (1755-1795) to Henry Knox re: considering constitutionality of a Pennsylvania Act

April 2d. 1794.

Sir
By your letter of the 31st. Ult. I understand that a question is made how far the measures contemplated by an act of Pennsylvania "for securing the trade, peace and safety of the port of Philadelphia and defending the Western Frontiers of the Commonwealth," are consistent with the Constitution of the United States. I have therefore considered that question with attention, & have now the honor to state to you my opinion agreeably to your request.
The act authorises [sic] the Governor to raise by enlistment from the militia of the Commonwealth three companies of riflemen and one of Artillery to serve under his orders and instructions for eight months, & from thence untill [sic] the next meeting of the Legislature, if in his opinion the state of the war in Europe or on the frontiers shall require it. The artillery company is to be stationed at Fort Mifflin for the purpose of securing the trade, peace & safety of the port of Philadelphia, [inserted: a measure] which the preamble declares to be expedient [2] "during the continuance of the war which now rages in Europe." The rest of the companies, (with a detachment of the artillery, which the Governor is authorised to make) are to be stationed for the defence of the Western frontiers & to protect the infant settlement at Presque isle.
By the Constitution of the U.S. it is provided "That no State shall without the consent of Congress lay any duty of Tonnage, keep troops or ships of war in time of peace" & c. This restriction on the power of keeping Troops, I am of opinion, is not absolute; but that the natural & grammatical construction of the words connects the qualification intended by the terms -- "in time of peace" -- with this restriction, as well as with that on keeping ships of War. There is therefore nothing [struck: which] in the constitution which prohibits the states from keeping Troops in time of War.
So far, therefore, as the act in question contemplates the defence of the Western Frontiers against the hostilities of the Indians now at war with the United States. I consider [inserted: it] as within the strictest limits of the [3] Constitution. Such measures have heretofore been pursued by the state of Pennsylvania without objection; & a practical construction upon this clause in the Constitution has thus been given.
The rest of the act [struck: is much] however, is very questionable and it is not without great hesitation that I decide upon it. The spirit of a [struck: restriction on the power of keeping] [inserted: prohibition to keep] troops in time of peace seems to imply that the Troops raised and kept in time of War, ought to be raised, kept & employed, with reference to the objects of that war. It is easy to perceive, that the dangers which [inserted: it is probable] the [struck: framers] [inserted: people] of the [struck: Constitution] [inserted: United States, {struck: probably}] intended to guard against by this prohibition, [struck: in the constitution may] [inserted: will] exist if on every breaking out of indian [inserted: or other] hostilities, [struck: may] the separate states may raise troops & build ships of war for any object but that of repelling such hostilities. But altho' these consequences are evident, I cannot find in the constitution itself anything which prohibits the states from stati[inserted: oni]ng & employing the troops which they have a right to keep in time of war, in what manner they please within the bounds of their respective states. [inserted: I consider] Those clauses in the constitution [struck: of the] [4] [struck: United States], which restrict the powers of the several states, as subject to a strict construction; and that the prohibitions are not to be extended by implication, nor is the natural & obvious meaning of the words to be enlarged by a consideration of inconveniences which may possibly result from [stuck: abiding by] [inserted: adhering to] it.
But as the state of Pennsylvania has no power to keep troops when the United States are not at war, so much of the act as goes to authorise the Governor "to keep up those companies if the circumstances of the war in Europe should in his opinion require it" is not, I apprehend, compatible with the Constitution of the United States. If Peace shall be made with the Indians [inserted: and the U. States be engaged in another war,] these [struck: company] troops cannot be constitutionally kept up by Pennsylvania, altho' the war in Europe should continue, & the terms of their inlistment [sic] should be unexpired.--
I have the honor to be, with great
respect & Esteem
Sir
Your most Ob. Serv.
W. Bradford
Secretary of War.