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ing the war against her, and forming foreign alliances as necessary thereto. Incident to this must be the General direction of the Army and Navy, because they are the instruments of the war.

Also for the providing the necessary funds for the disbursements, because without them neither Army or Navy can subsist.

Also the making Treaties with Foreign Powers, to be binding on all the States alike and equally to affect them, because this is the essence of foreign alliance.

This Idea of the Powers, use and authority of Congress, excludes all coercive Interpositions within the States respectively, except with respect to the Army and Navy because the States are competent to every exertion of power within themselves. Also the appointment of ways and means for supplying the Contingents of men, money or other things otherwise than by recommendation which always implies a power in the State to reject.

Also the power of imprisoning or otherwise punishing any Citizen, because that is not necessary for the end of their Institution, and every individual is to be tried and punished only by those Laws to which he consents. The Congress for this reason can give no authority to any man or set of men to arrest or punish a Citizen, nor can it Lawfully be done but by the authority of the particular States.

Also all pretence for continuance of a Congress after the war is concluded, or of assuming a power to any other purposes-than that are above expressed. The Congress now determines by a majority which need not be more than five, and of which seven is always conclusive if the last mentioned exclusion be not right, the Congress might engage the States in confederacies, injurious to all but the continued majority 'Tis my opinion that every State has a right to control the Cantonment of Soldiers within their Territories, but as all the Governments, are not yet settled, it might be inconvenient to say any thing of it, and it is not necessary. Whenever a State finds occasion to exercise this right, I think none will be hardy enough to dispute it. But I believe it will be necessary for every established State to provide a mode whereby the Civil authority can interpose to prevent Courts Martial from exceeding their Jurisdiction. 'Tis true a Soldier expressly consents to be bound by the articles of war, and to submit to the martial Jurisdiction, but in all trials, the first question is the Identity which must raise in this case the enquiry Soldier or Citizen? If the Court Martial can determine this question, it is in their power to call any Citizen a Soldier, and to subject him to Military Law. This evidently points out the necessity of the check of the civil authority. This Confederation is a subject of the highest importance, but not having yet passed the House, except when in Committee, it seems it must not be laid before the Assemblies. I shall deem it my duty to examine every article of it with the most critical scrutiny, and submit my thoughts to the Assembly, and receive their Instructions. But I am told by the President that it will violate my obligation of Secrecy to do this before it has passed the House.

If the Assembly agree with me in the foregoing Ideas, of the Power, use and authority of Congress, I beg leave to recommend that they

instruct their Delegates not to depart from them, nor to consent to any act or resolve which shall tend to exempt the Courts Martial from the control of the civil power in the States.

I am not desirous of these Instructions in order to restrain the Delegates. I believe none of them even without Instructions would vote contrary to those Ideas, but as all questions are carried by a Majority in Congress, the state may perhaps be bound, tho' her Delegates should dissent, especially where the Instructions are so general and Powers so indefinite as ours. I wish the state therefore to instruct, and by some public act to disclaim being bound by any resolves contrary to her Instructions. Without some thing of this kind, according to the present Constitution of Congress it may be impossible for the Delegates to preserve the Independence of the State from Encroachments, for by that constitution they are not allowed to protest or enter their Dissent.

These thoughts are humbly submitted to the Honorable the General Assembly of North Carolina by their most respectful humble Serv't THOS. BURKE.

Dear Sir

741. HENRY LAURENS TO JOHN LEWIS GERVAIS.1

YORK 18th. Novemb. 1777.

I have of late been obliged, I may truly say obliged, to give so many recommendatory Letters to poor disappointed french Officers who will call upon you, I fear being very troublesome.

Congress have made free with the funds in their power, from motives of humanity and policy, by giving such sums to these disappointed speculatists who had been induced to cross the Atlantic, from hearing there was "a fine war" on this side, as they would refuse to any equal number of our home borne friends, who had even borne the burthen of our Struggle.2.

Dear Sir

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742. JONATHAN ELMER TO WILLIAM MAXWELL.1

YORK TOWN 18th. Novr. 1777

Your Letter to Dr. Witherspoon came to my hands after he left Congress. As I was informed of the Contents of it I opened it and laid Col: Dayton's case before Congress. Though they seem fully sensible of the merit and services of Col: Dayton yet the many application[s] of a similar nature from Officers of the Army made them hesitate about allowing him a Horse. The affair however was referred to the Board of War. Should I not leave Congress soon I will use my influence to obtain the Consent of that Board to the measure.2.

[741] S. C. Hist. Soc., Laurens Letter-Book, 1776-1778, p. 196.

2 Cf. no. 734, ante, no. 770, post.

[742]1 N. Y. Pub. Lib., Emmet Coll., no. 767.

2 See the Journals, Nov. 7. No record of a report on the matter appears in the Journals. Cf. no. 397, note 3, ante.

Dear General,

743. JAMES DUANE TO PHILIP SCHUYLER.1

YORK TOWN 19th. Novr 1777

.. I thought it adviseable to obtain the enclosd Resolution to enable you If you shoud think fit to repair your misfortunes at Saraghtoga; and to prevent a long and disagreeable Attendance at Head Quarters where you cou'd not live but in manner the most uncomfortable and expensive.2

22d. Novr

[P. S.]. . . . A Board of War is institu[t]ed of Commisrs. not of the House. Mifflin, the Adjutant General, and Secretary Harrison, are in nomination. The first has accepted and is now here. He insists that it is essential you shoud be at its head, and that Gates also shoud be a Member. When I see you I shall open my Mind on this Subject. Nothing is more essential than the proper Establishment of this Board..

Sir

744. THE PRESIDENT OF CONGRESS (HENRY LAURENS) TO
GEORGE WASHINGTON.1

YORK 19th. Novemr. 1777.

A person from Philadelphia well known by the name of John Brown was Reported to Congress yesterday by Mr. Morris as having come to him with a Message from Genl. Sir Wm. Howe through the medium of Mr. Willing to Congress, importing generally that Sir William and Lord Howe were desirous of treating for terms of Peace with Congress that every thing that ever had been expected by America (Independency as he understood excepted) would be granted and Congress money ratified.2...

P. S. Congress in this morning session Resolved to make a strait inquiry into the treatment of American soldiers and other Inhabitants of America now or late prisoners in Philadelphia. a Copy of the Resolution

[743] N. Y. Pub. Lib., Schuyler Papers, no. 548.

2 See the Journals, Nov. 14; also no. 734, ante, no. 756, post.

3 A copy of this postscript, in the form of a separate letter, is in the Sparks MSS., no. 60, f. 154.

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4 Duane first wrote constituted".

5 Col. Timothy Pickering.

See the Journals, Oct. 16, 17, Nov. 7, 17, 19, 21, 22, 24, 27. Cf. nos. 700, 720, ante, nos. 757-761, post. See also J. B. Smith to Joseph Reed, Feb. 25, 1778, in the next volume of these Letters.

[744]1 Library of Congress, President's Letter-Book, I. 33; S. C. Hist. Soc., Laurens Letters, 1776-1779, no. 20.

2 See the Journals, Nov. 18, and no. 746, post; also Washington's letter of Nov. 23, read in Congress Nov. 27, and Robert Morris to President Wharton, Nov. 30, in Pa. Arch., first ser., VI. 45; cf. ibid., V. 25, 30, 36. See also Minutes of the Supreme Executive Council of Pennsylvania, XI. 344-346, 347, 394, 406, 407, 453, 459. Among the Laurens Papers in the South Carolina Historical Society (vol. XXI.) is a copy of the examination of John Brown in the council of safety at Lancaster, to which Laurens has appended a note commenting on this "mysterious affair", and rather clearly intimating questionable connection with it on the part of Robert Morris. Cf. Charles Thomson to Robert Morris, Jan. 1, 1778, in the next volume of these Letters.

will be added to those above mentioned. I have been instructed by Congress to add a request to your Excellency to demand access by a proper Officer to such prisoners as remain alive in order an effectual enquiry may be made and a satisfactory answer as to facts returned. Congress are of opinion that the demand may be justly founded on the precedent of Agents from the Enemy appointed on their part and permitted by Congress to visit Hessian prisoners on this side.3

Dear Sir

745. JOHN PENN TO WILLIAM WOODFORD.1

YORK NOVг. 19th. 1777

Inclosed I send you a letter from Colo. Pendleton. I have waited a few days in hopes to be able to mention something to you about your Rank. Mr. Jones has been unwell for some days he has determined as soon as he can, either to make or second a motion that Justice should be done.

8

The Congress have settled the precident, in recalling all the Commissions from the Continental officers of Pennsylva. in order to grant new ones, that the proper rank of each officer may be preserved, several extraordinary promotions having taken place to the prejudice of some officers.* I am under no doubt but we shall do what is right with regard to you and Genl. Scott, tho' I can't help being vexed that it has been delayed so long. I have had some words with with . . [sic] (you can guess) he will be agt. you (I suspect) tho' not your State, we have rubbed very hard and in publick-more than once. I suspect the affair will be done this week, as soon as it is I will write you. You know my opinion of your ability and Integrity, also of General Scot, I shall therefore use every thing in my power to have Justice done and as soon as possible not from Friendship but duty. . .

746. DANIEL ROBERDEAU TO THE PRESIDENT OF PENNSYLVANIA (THOMAS WHARTON, JR.).1

Sir,

YORK TOWN, Novr 19th, 1777

I am honored with your several favors of the 15th, 16th and 17th Instant to which I will reply at length if time and the extream coldness

8 See the Journals, Nov. 19, Dec. 6, 8, 16, 17, 19.

[745]1 John Carter Brown Library.

2 See the Journals, Nov. 12.

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3 Penn first wrote warm words" then erased the word “warm ”. The unnamed delegate from Virginia with whom Penn had the warm words (if they were warm) was probably Francis Lightfoot Lee. The Lees appear to have been friends of General Weedon. See the Journals, Nov. 29. Col. William Woodford of Virginia was one of eleven colonels made brigadier-generals, Feb. 21, 1777, and was ranked eleventh in the list. Col. Charles Scott, also of Virginia, was made brigadier-general Apr. 1, 1777. The question of rank involved also two other brigadier-generals of Virginia, Peter Muhlenberg and George Weedon. The relative rank of these four was determined Mar. 19. 1778. A further controversy however arose as between Woodford and Weedon. This was settled Aug. 18, 1778. See Francis Lightfoot Lee to General Weedon, Mar. 31, 1778, in the next volume of these Letters.

[746]1 Pa. Arch., first ser., VI. 18.

of the weather will permit, but I no sooner express my desire than I find myself limited to a few minutes.2 The regulation of the prices of necessaries for the army and the Quota's for each State, until better ascertained I expect will be both reported this day by Committee's. I acknowledge Shelly's affidavit come to hand which I doubt not will satisfy every Inquirer. As soon as Confideration is returned from Lancaster compared and signed, it will be instantly forwarded to the respective States, with a Letter already prepared, warmly urging the passage of it, and that Delegates be returned to Congress to confirm a Confideration by the 10th March, therefore I hope our State will have a Legislative Body together to consider this important work. if not assembled in any State it is the earnest request of the above hinted address that the Executive should immediately call them together. The alarming account of the Depredations on our western Frontier was without delay laid before Congress, and a report brought in on too large a scale for the occasion as your letter as well as the conjecture of some Members made highly probable. General Hand as you know, was sent westward authorised by this State to call the Militia together for the very purpose now solicited by the back Inhabitants, but they, it seems were not in a humour to turn out, for this, that and a thousand Reasons which probably could not be obviated without violating the Militia Law and Discarding many Officers the Genl perhaps not excepted. An inquiry is on foot respecting the principles and conduct of Col. Morgan; but as far as it has gone we find the Genl involved in the same predicament, and that it is no other than the unreasonable Clamour of some discontented Spirits. however I am resolved to go to the bottom if it has any. But I am very apprehensive the Duty self interest reigns predominent in the Western as well as every other quarter of our Land, and that a desire to enrich themselves has too much influence, and that from this principle many lean minds would stir up a dust among the Savages even at this unseasonable time. Your application I believe will end among other measures in the appointment of Commissioners out of Congress to make a full inquiry into their discontents and particularly into a hellish design of Conspiracy therefore I beg the State would immediately furnish me with the names of two Gentlemen capable of such a negotiation at Pittsburgh, that I may be ready for a

2 These letters have not been found.

8 See the Journals, Nov. 22 (report of committee on the letter of Stephen Hopkins and the proceedings of the committees of the Eastern states); also no. 736, note 2, ante. 4 See the Journals, Nov. 17. "Confideration will be sent off for Lancaster to be printed." Roberdeau to George Bryan, vice-president of Pennsylvania, Nov. 16 (Pa. Arch., first ser., VI. 10). The Confederation_was received from the press Nov. 28. See the Journals (ed. Ford), p. 928, note 2. Cf. nos. 733, 735, 738-740, ante, nos. 747, 749, 753, 754, 760, 765, 766, post.

5 The matter came before Congress Nov. 15, through a letter from George Bryan, vice-president of Pennsylvania, to the delegates from that state, dated Nov. 14 (Pa. Arch., first ser., VI. 3). Roberdeau's acknowledgment of the letter, dated Nov. 16, is ibid., VI. 10. Letters from Brigadier-General Hand and others at Fort Pitt were received Nov. 18, and referred (Nov. 19) to the same committee as the letter from Bryan. A report was brought in Nov. 19 and agreed to Nov. 20. One of the Hamilton proclamations therein referred to is in Pa. Arch., first ser., V. 402. See note 7, below.

• See the Journals, Apr. 9-11; also no. 436, note 3, ante.

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