might be apprehended in any state and removed to the Jurisdiction who had power to punish, but every Individu[al] who might be apprehended had a right to call for the Interposi[ti]on of the state where he was apprehended to Enquire whether he was a person liable to suspicion, and whether the restraint of his Liberty was lawful or not. but the Power to Interpose in this manner could only be derived from the Internal Legislature so [?] the Power to arrest must be derived from the same source, or it would follow that the citizens of each state might be restrained of their Liberty by an authority not derived from themselves which could not subsist with freedom and Independance. tis plain from these considerations that desertion was no more secure of Impunity, than Murder, for in both the offender must be assisted by Virtue of an authority derived from the state where found, and each must be tried by the competent Jurisdiction and punished according to the Laws of the Community against which he offended. The amendment would [not] rem[ove the o]bjection because whether the word suspected was in or not [the objec]tions must remain the same. no one could be more than suspect[ed beflore conviction, and the Question of Guilt or Innocence must be [determined] some where previous to punishment The Distinction between Magistrates as Magistrates, and as persons proper to execute resolves was incomprehensible. if any thing render them more proper than freeholders it was what distinguished them from Freeholders which certainly was being Magistrates, and what but their authority as Magistrates rendered them fitter for Executing the resolve? twas surely their Power that was considered as rendering them more fit, and whence could they derive their Power but from their Quality as Magistrates? in fact it was an attempt to convey authority from the Congress to the Magistrates of the states, which would Involve the Personal right of every citizen and which could be derived from no Power but the People of the respective states. To Mr Lee The Difference is certainly very perceptable between offering a reward to any Individual who shall apprehend Deserters and subject them to the proper tribunals for deciding concerning Guilt or Innocence (for the advertisements could have no other Effect) and Impowering persons in the States to decide this Question, and to Imprison and remove out of the state in consequence of such decision. the One was no more than Inviting people to run the hazard of an action for being mistaken, and to be delligent in looking out for deserters by hopes of the reward. but the other was giving Power to Exercise discrition in deciding Guilt or Innocence, and consequently of freedom and Imprisonment, and Eventually Life and Death. that in the latter case no remedy could be had for the Injury, if the Congress could give the Power because the Magistrate must decide Judicially, and must be subject to no punishment for being Mistaken, because every Judge undertook to use his best endeavours to discover Truth, but did not promise to be Infallible. but the states would undoubtedly punish the Magistrate, for acting without Jurisdiction, which would prove they did not admit the power of Congress To Mr. Adams. The Congress was Impowered by the several states to levy an Army, and to conduct the War, and the Government of the army was Incident to that Power the army could not be governed without rules and such rules were the articles of War, which the Congress undoubtedly had a right to make, and every soldier was particul[arly] bound to submit to them, because he consents to be governed by them, and tried and punished by them not by representation merely but by actual person-consent, for they are read to him at the time of Inlistm[ent.] But the Power of Congress could not extend to subject any other but such as enlisted and personally consented to the articles of War, and it was the Duty of the states to Interpose whenever the Question arose whether soldier or not, because otherwise their citizens might be subjected to Martial Law against their Consent, and when ever any soldier apprehended the courts martial exceeded their Jurisdiction he had a right to bring the matter before the civil Tribunal of the State where he was, because other wise the Military might become absolute and Independant of the civil authority. During this Debate Mr. Wilson Instanced a case where the Congress had committed a man by their own authority, and no objection made. The Delegate from N. C: declared he was sorry to hear it, but would excuse it because he would suppose some special circumstances of Necessity. he declared had he been present it should not have passed without Opposition, and he hoped it never would be repeated for since no Power could call the Congress to account, if they could Imprison, they might do the greatest wrong without any remedy, and the Liberty of America. would be at the mercy of a Majority in Congress which mig[ht] not Exceed five members, because nine states make a Congress, and there are more than five represented by a single member. The Question for adjournment to Philadelphia was carried in the negative." 383. THE PRESIDENT OF CONGRESS (JOHN HANCOCK) TO Dear Sir BALTIMORE, Febry. 26th 1777. In Consequence of yours by Express respecting the State of our Army, and the Reinforcements of Howe's Army at Brunswick, and yr opinion that at present it would not be prudent for Congress to Return to Philada, the Congress have determin'd to suspend their Remove for some days, at least untill we hear from you, which I hope will be soon, and that the way is clear for us to pursue our own course.2. 5 See the Journals, Feb. 25; also no. 377, note 2, ante. Cf. nos. 384, 387, post. [383] Copied from the original then in the possession of Mr. Stan. V. Henkels of Philadelphia; N. Y. Hist. Soc., Collections: Revolutionary Papers, I. 421. 2" In consequence of your letters, and one from Mr. Morris, Congress have suspended their move to Philadelphia for a few days." Hancock to Washington, Feb. 25, Letters to Washington (ed. Sparks), I. 347. See no. 377, ante, and the Journals, Feb. 24, 25, 27. See also nos. 384, 387-389, 392, 393, post. I left Philadelphia the 13th of Decr. When I shall return is uncertain but I believe it will be soon; for Congress have the Matter of a Removal thither in Contemplation." William Ellery to William Vernon, Feb. 26, R. I. Hist. Soc., Publications, VIII. 203. I refer you to my Letter to the General, and the resolves of Congress therein. I have left the Letter open for your perusal, after which please to Seal and forward to the Genl. by a special Express. . . . . Send us good news and let us go on to Philada and Dispatch what Business we have on hand, that I may have Leave to Return to Boston the last week in April.3 Feby 26th. The Question came on again relative to Interest on Loan certificates and it was determined to give the six per cent, Connecticut assenting and giving a Majority, because it drew Georgia with it.2 There was an attempt to extend the Interest to the certificates which should be given in payment of Lottery prizes, but it was rejected. the debates were long and troublesome, but unimportant. North Carolina was always against the Increase of Interest because the delegate considered it a resolution to carry on the War at 6 per cent Interest rather than four, and that any sum of money which might be accumulated in the great cities even if they could be borrowed at six per cent yet the advantage arising from that acquisi[ti]on by no means compensated for the increased interest at which the War must be carried on.3 The Question was put in the morning for an adjournment to Philada.* all the southern Delegates were against it except Georgia who always votes with Connecticut.5 the reasons were given that so much business of Consequence was before the Congress it was improper to suspend that Business by an adjournment at so busy a season that the weather was so bad, and several states so circumstanced there was very little probability of the Congress meeting at Philadelphia in several Weeks. that the General was of Opinion that the Enemy Intended an attack on Philadelphia and if they attempted it he had no force to stop them. in fine that it would be foregoing a certainty of doing Business for a very great uncertainty. for it, the only reason of any weight came from the Board of War which was that for want of Mechanics, and Waggons the Business of their department went on very heavily at Baltimore. this was answered by observing that an adjournment would cause an entire suspension of that and all business, and there was no probability of an early meeting at Philadelphia. there was a peevish altercation on the Matter, and the delegate from North Carolina moved to put off the Question on behalf 3 See no. 374, ante. [384] N. Y. Pub. Lib., Emmet Coll., no. 1162; N. C. State Recs., XI. 384; Harvard Univ. Lib., Sparks MSS., no. 36, p. 460 (copy). 2 Cf. no. 380, note 7, ante. 3 See no. 382, ante, nos. 385, 388, 392, 394, post. While this paragraph is essentially the same in substance as the corresponding paragraph in N. C. State Recs., it differs in form of expression. 4 See the Journals, Feb. 17, 25, 27. There is no record in the Journals of such a debate on Feb. 26. See no. 387, post; also no. 377, note 2, ante. 5 Cf. no. 380, ante, and no. 503, post. • The text in N. C. State Recs. reads: "For if the only reason", etc. "For it " is a customary phrase with Burke for introducing affirmative argument. of the Colony. a Fierce debate ensued J: Adams, Doctr Weatherspoon Mr Wilson, Mr Sherman and some others alledged that it must be refered to a Majority whether the rule could apply to this case, and in short whether the Colony should be permitted to exercise the right of postponing the Question. R: H: Lee with great pirspicuity and force of argument urged the violent Impropriety of putting such a Question at a time when a state attempted to avail itself of a Privilege reserved to each by the original Rules of the Congress which certainly formed its Constitution, and that if the rule was thought inconvenient the proper way would be to let the stat[e] first av[a]il itself thereof and afterwards consider the rule and alter and amend it if thought Necessary. F. L: Lee observed that the rule was originally intended to prevent a Majority from deciding on any matter with too much precipitation and if it was to be submitted to a Majority when it was proper to apply the rule, or when a state might avail itself of it, the Majority would always determin against applying it at all. Mr Haywood from S. Carolina urged that he thought it a very extraordinary kind of proposition to submit to a Majority whether that Majority should be checked by a Power apsolutely reserved for that purpose in the Constitution of the Congress. The Delegate from North Carolina declared that he would enter into no Debate on the subject whether he should avail himself of a right which was reserved to every state in the Original Constitution of the Congress. that those rules must have been entered into by Common consent, and nothing but common consent could dispense with them that if a Majority of Congress could vote away the rules of the Congress which common consent had Established, they were a Body bound by no rule at all and only Governed by arbitrary discretion, that if this was the Case no state was secure, a Majority might vote that two three four or five states should form a Congress, altho the present rule required nine, that the votes should not be by states but by voice Individually. in short any the smalest Number of the Delegates might take upon them the whole authority of the Congress, that putting the right of the state to the Question was assuming to exercise an arbitrary tyrannical discrition and if it was done he should consider it as a most violent Invasion of the right of his state which he would endeavour to resent as became him. that [if] the Question was at all put he should be at no loss how to conduct himself. that he would always to the best of his Judgement make a prudent use of any privilege with which he was Invested, but he hoped he should always have firmness enough to maintain every the smallest Privilege of the state he represented. that gentlemen were exceedingly mistaken if they deemed him a Man who would tamely suffer any Invasion or encroachment on its Rights, that, if that Assembly proceeded to so arbitrary and Tyrannical an Exertion of Power he would consider it as no longer That which ought to be trusted with the Liberties of their Fellow Citizens, and he would shape his conduct accordingly. The Delegates of New Hampshire Maryland, Virginia and 7 In N. C. State Recs. the word is printed "framed". 8 See Burke's letter to Governor Caswell, Mar. 11, no. 400, post. A part of that letter which is omitted is a further exposition of Burke's views on this point. South Carolina Joined in this very strenuously insisting that it was a most violent and arbitrary act of Power to put any Question at all on this matter, and the others (some Individuals among them being of Opinion also with N: C: [)] perceiving the determined resolution of N: C: to withdraw from Congress if any such Question should be put, they waved their Opposition, and he exercised his right. 385. BENJAMIN RUSH, DIARY.1 [February 26, 1777.] The Question for raising the interest of loan office certificates from 4 to 6 per ct was determined in the affirmat [iv]e by the following states NH: MB: C- NJ. P: V. and G: In the negative RI :- N and S. C :- Maryland divided.2 386. THE COMMITTEE IN PHILADELPHIA TO GEORGE WASHINGTON.1 PHILADA Feby 26th. 1777 Sir We have this night rec'd from Congress the dispatches sent herewith. by these you will see the promotions that have taken place and that no deputation of Members of Congress are to meet Genl Lee, who I suppose will be much disapointed but surely he shou'd have pointed out more clearly the design of his request, as the consequences of complyance or even of the refusal may be important. It woud appear from what we have lately heard that Genl. Howe intends sending him to England which we shall be sorry for, as such a measure may possibly involve in its consequences more destruction than either side really wish for. We have recommended to Congress either to remain where they are, or if they do remove to let it be to Lancaster which we think wou'd be much more convenient than Baltimore. the Public business meets great obstructions from their distance and the difficulties of getting dispatches backwards and forwards. they are exceedingly retarded by bad roads and the frequent stoppage at Susquehannah Ferry and in our oppinion when they did move they shou'd have gone to Lancaster. if they remove again before Genl. Howes designs are clearly evinced or frustrated, it shou'd be there. We Issued orders last Week to have all the Public Stores in readiness to remove from this place and are now urging to every department the propriety of carrying those orders into execution not only so far as relates to their being in readiness but as to the actual removing of them There are only minor verbal or phrasal variations between this abstract of debate on the adjournment and that in N. C. State Recs. To the latter is added the sentence: "The next day the adjournment was carried." Two typographical errors which affect the sense have been noted above. [385]1 Library Company of Philadelphia, Ridgway Branch, Rush MSS. 2 See the Journals, Feb. 26, and no. 384, note 3, ante. [386]1 Library of Congress, letters to Washington, XIV. 13. 2 See no. 366, note 3, ante. |