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 disap

pointed. 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.1

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; 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.3

2

1 Writings of Washington, IV.

551.

2 Journals, III. 35.

3" We have now to lament," said Robert Morris, in a private letter to General Washington, un

der date of February 27th, 1777, "the absence from the public councils of America of Johnson, Jay, R. R. Livingston, Duane, Deane, W. Livingston, Franklin, Dickinson, Harrison, Nelson, Hooper,

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.1 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

Arthur Middleton, Thomas Hayward, Jr., and Henry Laurens, with power "to concert, agree to, and execute every measure which one or all of them should judge necessary for the defence, security, or interest of this State in particular, and of America in general." (Ibid. 53.) Connecticut sent Roger Sherman, Samuel Huntington, Eliphalet Dyer, Oliver Wolcott, Richard Law, and William Williams, "to consult, advise, and resolve upon measures necessary to be taken and pursued for the defence, security, and preservation of the rights and liberties of the said United States, and for their common safety "; but requiring them "of such their proceedings and resolves to trans

mit authentic copies from time to time to the General Assembly of this State." (Ibid. 5.) Of the other States, Pennsylvania, Rhode Island, New York, New Jersey, Maryland, and Georgia, which renewed their delegations somewhat later in the year, instructed them simply "to represent" the State in the Continental Congress; and Delaware empowered its delegates, on behalf of the State, "to concert, agree to, and execute any measure which they, together with a majority of the Continental Congress, should judge necessary for the defence, security, interest, and welfare of that State in particular, and America in general." (Ibid. 64, 315, 171, 169, 395, 54, 403, 86.)

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 counterproclamation, 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 protec tion 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.1

1 This was Mr. Abraham Clark, one of the signers of the Declara