[Volume 1, Page 444]

CHAPTER 14 | Document 14

Thomas Burke, Abstract of Debates in Congress

25 Feb. 1777Burnett 2:275--78

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 Intervention 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 [Volume 1, Page 445] 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 and 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 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 [Volume 1, Page 446] 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.

The Founders' Constitution
Volume 1, Chapter 14, Document 14
The University of Chicago Press

Burnett, Edmund C., ed. Letters of Members of the Continental Congress. 8 vols. Washington: Carnegie Institution of Washington, 1921--36.

© 1987 by The University of Chicago
All rights reserved. Published 2000