History of the United States Constitution. George Ticknor Curtis

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СКАЧАТЬ for this step. Nor was their letter a mere apology. It implied a doubt whether the continental government possessed a proper authority to take the steps which the crisis demanded, and whether the execution of all measures did not really belong to the States, the Congress having only a recommendatory power. "Ever attentive," their letter declared, "to the security of civil liberty, Congress would not have consented to the vesting of such powers in the military department as those which the inclosed resolves convey to the continental Commander-in-chief, if the situation of public affairs did not require, at this crisis, a decision and vigor which distance and numbers deny to assemblies far removed from each other and from the seat of war." The letter closed, by requesting the States to use their utmost exertions to further such levies as the general might direct, in consequence of the new powers given him, and to make up and complete their quotas as formerly settled.123

      Strictly examined, therefore, the position taken by the Congress was, that a crisis existed demanding the utmost decision and vigor; that the measures necessary to meet it, such as the raising of troops and the compulsory levying of supplies, belonged to the States; but that, the State governments being removed from each other and from the seat of war, the Congress confers upon the continental general power to do things which in reality it belongs to the States to do. In this there was a great inaccuracy, according to all our present ideas of constitutional power. But still the action of the Congress expresses and exhibits their real situation. It contains a contradiction between the true theory of their revolutionary powers and the powers which they could in fact practically exercise. Upon principle, it was just as competent to the Congress to take the steps required by the exigency, as it was to adjudge them to the States; and it was just as competent to the Congress to do any thing directly, as to confer a power to do it on their general. But the jealousies of the States, the habits of the country, and the practical working of the existing institutions, had never permitted the full exercise of the revolutionary powers which properly resided in the hands of the Congress. The true theory of their situation was limited by practical impossibilities; and an escape from contradictions became impossible. It was perceived that the States would neither pass laws or resolves for the summary raising of forces and levying of supplies, nor allow this to be done by committees or commissioners of Congress; but it was believed that they would acquiesce in its being done by General Washington, out of respect for his character, for his abilities and his motives, and from conviction that he alone could save the country.

      The expectations of the Congress were not disappointed. It was felt throughout the country, that such powers could be lodged in the hands of Washington without danger. The States in general acquiesced in the necessity and propriety of this measure, and there was little disposition to encroach upon or to complain of the authority conferred. To this acquiescence, however, there were exceptions.124

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      The period which now followed was a part of the interval during which the Articles of Confederation were pending in Congress. We have seen that the plan of a confederation was reported to that body in July, 1776, and finally adopted for recommendation to the States in November, 1777. But soon after the extraordinary powers had been conferred upon General Washington, the attendance of the members began to diminish, and several of the most eminent and able men, who had hitherto served, retired from Congress. In January, 1777, there were no delegations present from the States of Delaware and New York;125 and in February, the absence of many distinguished men, whose counsels had been of vast importance, made a striking deficiency. The formation of the State governments, and the local affairs of the States, absorbed for a time, with a few important exceptions, the best civil talent in the country.126

      While the personal efficiency and wisdom of the Congress thus sensibly declined, no change took place in the nature of their powers, or in their relations to the States, that would impart greater vigor to their proceedings. The delegations of many of the States were renewed in the winter of 1776-7; but there was a great diversity, and in some cases a great vagueness, in their instructions.127 In such a state of things,—with no uniform rule prescribing the powers of the Congress, and with some uncertainty in that body itself with regard to its authority to confer upon the Commander-in-chief the powers with which he was now invested,—however general might be the readiness of the country to acquiesce in their necessity, it is not surprising that State jealousy was sometimes aroused, or that it should have been unreasonable in some of its manifestations.

      A striking instance of this jealousy occurred upon the occasion of a proclamation issued by General Washington at Morristown, on the 25th of January, 1777. Sir William Howe had published a proclamation in New Jersey, offering protection to such of the inhabitants as would take an oath of allegiance to the King. Many of the substantial farmers of the country had availed themselves of this offer, and had received protections from the British general. The English and Hessian troops, however, made no distinction between friends and foes, but frequently committed great outrages both upon person and property. The resentment of the population would have restored them to the patriot side; but many who had taken the oath of allegiance felt, or affected, in consequence, scruples of conscience.

      General Washington therefore issued a counter-proclamation, commanding all persons who had received the enemy's protection to repair to head-quarters, or to some general officer of the army, and to surrender their protections and take an oath of allegiance to the United States;—allowing thirty days for those who preferred to remain under the protection of Great Britain to withdraw within the enemy's lines. This was considered in some quarters as an undue exercise of power. The idea of an oath of allegiance to the United States, before the Confederation was formed, was regarded by many as an absurdity. Allegiance, it was said, was due exclusively to the State of which a man was an inhabitant; the States alone were sovereign; and it was for each State, not for the United States, which possessed no sovereignty, to exact this obligation. The Legislature of New Jersey were disposed to treat General Washington's proclamation as an encroachment on their prerogatives: and one of the delegates of that State in Congress denounced it as improper.128

      This feeling was shared by other members; but it is not to be doubted, that the proceeding was a legitimate exercise of the authority vested in the Commander-in-chief. He had been expressly empowered to arrest and confine persons disaffected to the American cause; and the requiring them to attend at his head-quarters was clearly within the scope of this authority. Moreover, although no confederation or political union of the States had been formed under a written compact, yet the United States were waging war, as a government regularly constituted by its representatives in a congress, for the very purpose of carrying on such war. They had an army in the field, whose officers held continental commissions, and were paid by a continental currency. They were exercising certain of the attributes of sovereignty as a belligerent power; and in that capacity they had a complete right to exact such an obligation not to aid the enemy, as would separate their friends from their foes. It was a military measure; and the tenor of the proclamation shows that General Washington exacted the oath in that relation. To pause at such a moment, and to consider nicely how much sovereignty resided in each of the States, and how much or how little belonged to the United States, was certainly a great refinement. But it marks the temper of the times, and the extreme jealousy with which all continental power and authority were watched at that period.129

      We have seen that the powers conferred upon General Washington authorized him to raise, in the most speedy and effectual manner, sixteen battalions of infantry, in addition to those before voted by Congress, three regiments of artillery, and a corps of engineers; and also to apply to any of the States for the aid of their militia when wanted.130 At the period when he addressed himself to this great undertaking of forming a new army, for the third time, the existing force which he had with him in and around New Jersey was about to be dissolved. The additional regiments of the regular line were to be raised by the States, and upon them alone could he depend for the supply of a new army, with which to commence the campaign in the spring of 1777. He had labored, he said, ever since he had been in the service, to discourage all kinds of local attachments and distinctions of country, denominating the whole by the greater name of American; but he had found it impossible to overcome prejudices.

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