superfluity and ought to be expunged. the Question was put and Jersey Pensylvania North Carolina and South Carolina voted for expunging, the rest for retaining. N: B. Maryland was not represented. there appeared upon this whole debate a great desire in the Delegates of the Eastern States, and in one of New Jersey to Insult the General. Georgia always votes with Connecticut and is no other use in the Congress."

1 381. THOMAS BURKE, ABSTRACT OF DEBATES.1

Feb'y 25. This day there was a very interesting debate on some amendments proposed to a report of a Committee, appointed to consider of some means for preventing desertion; 2 but the main question was concerning the jurisdiction of Congress and the States. The decision was postponed. The debate lay chiefly between Mr. Wilson, of Pennsylvania, and the Delegate from North Carolina. The opinion of a great majority was with the latter; but it was not deemed prudent to decide. N. B. This is all that I can now transmit: but as you know the opinion of your Delegate on such questions, you can judge the opinion of Congress; and for this reason it is that I mention that a majority was in his favour.

2

382. THOMAS BURKE, ABSTRACT OF DEBATES.1

Feby 25th. The Question of Interest was again debated, and postponed A Report was taken up relative to Deserters. it stood Originally a recommendation of Congress to the several states to Enact Laws Empowering all Constables Ferry keepers and Freeholders to take up persons suspected of being Deserters and carry them before any Justice of the Peace. An Amendment was moved the purport of which was that the Power should go Immediately from Congress-without the Interven

5 The statement concerning the "pompous paragraph", as given in N. C. State Records, might be construed to mean that the declaration was passed and then expunged. The account here given indicates that the declaration was in the report of the committee of the whole, but was rejected by Congress on a final vote. The votes for retaining the paragraph are explicitly mentioned as those of the "four Eastern States, Virginia, and Georgia". The absence of Maryland is not mentioned.

The New Jersey members were Richard Stockton, John Witherspoon, Jonathan Dickinson Sergeant, Abraham Clark, and Jonathan Elmer. Stockton had been taken prisoner by the British and did not return to Congress (see no. 347, ante), and Elmer had obtained leave of absence Feb. 14. Only Witherspoon, Sergeant, and Clark therefore were present at this time. Sergeant's known hostility to Washington suggests him as the member alluded to by Burke. See however no. 347, ante.

7 The phrase in N. C. State Records is: "of no further use in Congress". Cf. the abstract for Feb. 26, no. 384, post, and see Burke's explanation in his letter to Governor Caswell, May 23, no. 503, post.

[381] N. C. State Recs., XI. 384.

2 The committee was appointed Feb. 12, and brought in its report Feb. 13. See Burke's extended account of this debate, no. 382, post. The resolution as passed is in the Journals, Feb. 25.

[382]1 N. Y. Pub. Lib., Emmet Coll., no. 1162.

2 See nos. 326, note 8, 340, 345, 349, 352, 357, 375, ante, 384, 385, 388, 392, 394, post. See no. 381, ante. Cf. this discussion with that concerning the adjournment to Philadelphia (Feb. 26, 27, nos. 384, 387, post), and with Burke's disquisition, in his letter to Caswell, Mar. 11 (N. C. State Recs., XI. 417), on the dangers of entrusting too much power to Congress.

tion of the states. many Gentlemen were inattentive and it passed. The Delegate from North Carolina desired to be informed if he might enter his Protest against it. he was informed by the chair that he could not. he then desired to have his dissent entered on the Journal. declaring he was not Apprehensive of any Injury from it in the state he represented because he knew it would never be there observed the People too well knowing the Maxims of their Government, but that as it was as much as his Life was worth to consent to the Congress exercising such a Power, he desired that he might be able to prove from the Journals that he did not. he said it appeared to him that Congress was herein assuming a Power to give authority from themselves to persons within the States to sieze ard Imprison the persons of the citizens and thereby to endanger the personal Liberty of every man in America. A motion was now made for reconsidering. on the reconsideration the Debate lay chiefly between Mr. Wilson of Pensylvania, and the North Carolina Delegate Mr. Wilson argued that every object of Continental Concern was the subject of Continental Councils, that all Provisions made by the Continental Councils must be carried into execution by Continental authority. That the Army was certainly a Continental object, and preventing Desertion in it was certainly as Necessary an object as the raising of it, that nothing could be more Necessary to prevent Desertion than to take Effectual Measures for Apprehending Deserters, that this Power must Necessarily be in the Congress, and that they certainly had Power to authorise any persons in the states to put them in Execution. That the Power of taking up deserters was in every soldier and officers of the army, and that the Congress might make any Justice of Peace in any state such an Officer and thereby give him that Power, and if by making him an Officer they could give him that Power, they surely could without. that the officers and soldiers of the army were certainly not subject to the Laws of the states. That this was no more than what was every day done in appointing commissari [es] to purchase provisions and other things under the resolves of Congress. That the Congress had always directed their resolves to be put in Execution by Committess of Inspection and it was never denied that they had Power

The Delegate of North Carolina answered that he admitted Continental objects were subjects of Continental Councils but denied that the provisions made by Continental Councils were to be enforced by Continental authority. That it would be giving Congress a Power to prostrate all the Laws and Constitutions of the states because they might create a Power within each that must act entirely Independant of them, and might act directly contrary to them that they might by virtue of this Power render Ineffectual all the Bariers Provided in the states for the Security of the Rights of the Citizens for if they gave a Power to act coercively it must be against the subject of some State, and the subject of every state was entitled to the Protection of that particular state, and subject to the Laws of that alone, because to them alone did he give his consent, that he hoped the Gentleman would not Insist on this Principle which in its

Nature was so very Extensive and alarming. That the states alone had Power to act coercively against their Citizens, and therefore were the only Power competent to carry into execution any Provisions whether Continental or Municipal. that he was well satisfied no Power on Earth would ever obtain authority to act coercively against any of the Citizens of the state he represented except under their own Legislature; unless it was obtained by Violence. that His fellow Citizens were struggling against unlawful exertions of Power, and they would submit to them from no authority. that he admitted the army to be a proper object to be governed and directed by Continental Councils, and that it is proper the Congress should provide for punishing Desertion, and that Desertion was a very [great] evil, but that who is a Deserter or who is not is a Question that must be determined previous to any Punishment, and who ever can determin it has a Power over the Life and Liberty of the Citizens, for as much as any man may be accused of Desertion but every one accused may not be Guilty. that If the Congress has the Power to appoint any Person to decide this Question the Congress has Power unlimitted over the Lives and Liberties of all men in America and the Provisions so anxiously made by the respective States to Secure them, at once Vanish before this Tremendous Authority. however proper it might be for Congress to punish Desertion it was Necessary for the states to prevent arbitrary and unjust punishments and Imprisonments of their Citizens, and unless some mode were provided for trying the above Question every man was liable to be imprisoned at the Discretion of Officers and servants of the Congress no power could be competent to this but such as is created by the Legislature of each state, and if any Question releated [sic] to the Internal Polity of a state it certainly was this which Involved all the Rights of the Citizen's personal Freedom He would not speak for other states, but for his own he would declare that the Constitution had anxiously provided that no man should be Imprisoned or in any Degree Injured in his Person or Property but under the authority of the Laws of the state that it was a fundamental Maxim well understoo[d] there that no Magisterial authority could be given, but by the Legislature, and none could be exercised beyond what was expressly laid down in the Laws. The Congress certainly could not give a Power within any state to hear and Determin Offence or to sieze and Imprison the Persons of the Citizens. yet most assuredly the Power contended for was no less, unless every Deserter was branded in the Face so that it could be determined without [doubt] who was Deserter and who was not. he was sorry to hear the Gentleman say that the Officers and Soldiers of the Army were not subject to the Laws of the States, and hoped the Gentleman would retract it, for assuredly the army must always be in some State and might be in every State, and if they were not subject to the Laws of the respective States, it would follow that a powerful Body of men within any State might Violate with Impunity all the Rights of the Citizens and subject them to the worst of Oppressions. that being contrary to all the purposes for which men enter into Society, the admission of it must dissolve all Society and Government,

and being peculiarly detested by the Americans who were struggling at the risque of Life and property against Oppression, it never could take place among them, until they lost all Common Sense, and all Love of Freedom That the Power of taking up deserters if it was in every officer and soldier it did not follow that every officer and soldier might call whom he pleased a deserter, and Imprison and punish him as such, that there must be a Power to determin whether deserter or not, and the Congress could give no such Power without giving authority to some Individuals within the states to exercise Magisterial Discretion and subject the citizens to that discretion. he could not conceive a state Independant if any Power could do this except their Internal Legislature who had their authority for that purpose from the People. he would declare firmly it could not be done in North Carolina by any other, if their Bill of Rights and Constitution were of any Effect, and not meer Waste paper. for they, provided that no free man within the state should be in any way or Degree restrained of his Liberty or damaged in his Property except under the Laws of the state to which h[is] consent must be given, because every freeman had a Voice [in the] Legislature. That in North Carolina no Military Officer could act in any civil department whatever, and he believed they could not in any state where Government was Established, yet if it were otherwise his civil authority must be derived from the state and not the Congress, and the rules and Limits whereby it was to be exercised must be expressly laid down by the state and could not be altered or extended by the Congress unless they had a Power over the Internal Laws of the states which Power never would be given, and no one pretended to. That the Difference was manifest between giving Commissions to purchase within the states, and giving Magisterial authority that one was only empowering some Individuals to exchange money for commodities in fair contract which each party must previously agree to. here was not the shadow of restraint but was founded on the most liberal Idea of Consent, no Contract being valid unless all the Transactions are bona fide consented to by all the contractors, and it was every day done by Individuals of the states the most remote, and unconnected with each other that the other was enabling Individuals to hear and determin accusations against other Individuals, to pass Judgement, and to subject them to punishment, which surely was the highest act of Dominion, and could be Justified only by the Laws of the state which had the consent and authority of the People (here he Illustr[at]ed by quoting the case of the Negro Somerset).* That it was true the Congress directed their resolves to the Committees of Inspection to be put in Execution, but surely it must be remembered that the Congress recommended to the states to appoint such for that purpose, and the states did appoint them accordingly. their authority was certainly derived from that appointment, and not from the Congress. in North Carolina the matter was beyond dispute for the

For the case of the negro Somerset, decided by Lord Mansfield in 1772, see J. C. Hurd, Law of Freedom and Bondage, I. 189-193, 373-382.

resolves which constituted Committees expressly empowered them to execute the resolves of the Continental Congress.

Mr. Wilson in reply admitted that he laid down the Principle too largely, and that when he said the officers and soldiers were not subject to the Laws of the states he meant only that in their Military duty they were subject only to the Congress he did not directly answer the argument from North Carolina but argued ab inconveniente that the Power was Necessary he said if the states alone were competent to this Power it would follow that no deserter could be punished or apprehended but in the state where he inlisted, and consequently by keeping out of that state he was sure of Impunity-that this was in Effect declaring that desertion could not be punished and consequently that the army might be immediately disbanded. that he did not contend for giving the Power to Justices of the Peace etc. as such, but as Individuals proper to execute the resolution he moved to amend by taking out the words suspected of being, which would leave it deserters which he hoped would remove all objections.

Mr. R. H: Lee from Virginia said it was a Misfortune to be too learned, that he could see no more in it, than he saw every day in the Newspapers which was advertising and offering a Reward for Deserters, and this was certainly exercising no Magisterial Power.

Mr. J. Adams from Massachusetts confessed the matter passed him without his attention, that he was inclined to think from what passed that the articles of War must be enacted into Laws in the several states, and he believed the officers thought so or they would proceed with greater Vigor.

The Delegate from North Carolina rejoined to all these.-to Mr Wilson. That Necessity was never to be admitted as an argument for assuming a Dangerous and improper Pow[er] tho it might be admitted as an Excuse for some particular unlawful exercise of authority, and then the Necessity must appear striking and Inevitable, to the Power which Judges an[d] Excuses the act. that otherwise the Plea of Necessity woul[d] subvert all restraints laid on persons entrusted with p[ower and?] authority, and always had been used by T[yra]nts for [that] purpose. Instance ship money, dispensations, and the presen[t] oppressive Proceedings of Britain. but even that Plea had no foundation here. the states were competent to enact Laws for the apprehending deserters, and there surely was no reason to doubt but that they would on a recommend [ation] for that purpose. that the Inconvenience the Gentleman mentioned was Imaginary. It will not follow that desertion could not be prevented or punished altho it should be admitted that the states alone were competent to give the Power of arresting suspected persons, and trying the Question deserter or not, nor could it be concluded from this that deserters could be apprehended nowhere but in the states where they enlisted. That desertion was a Crime and like all other Crimes to be punished whereever it should be committed, and by the Power who had competent Jurisdiction. that the Crime once committed the offender