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Letter from Thomas Burke to the North Carolina General Assembly
Burke, Thomas, ca. 1747-1783
December 1777
Volume 11, Pages 701-703

[From Executive Letter Book.]

I consider the Congress at present as a General Council of America instituted for the purpose of opposing the usurpations of Britain, conducting 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 allience.

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

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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

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would vote contrary to those Ideas, but as all questions are carried by a Majority in Congaess, the state may perhaps be bound, tho' her Delegates should dissent, especially where the Insructions 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