To George Washington
Wmsburg July 17th 1779
I some time ago inclosed to you a printed copy of an Order of Council, by which Governor Hamilton was to be confined in Irons in close Jail. This has occasioned a letter from General Philips of which the inclosed is a Copy. The General seems to suppose that a prisoner on capitulation cannot be put into close confinement tho his capitulation shall not have provided against it. My idea was that all persons taken in war were to be deemed prisoners of war. That those who surrender on capitulation (or convention) are prisoners of war also subject to the same treatment with those who surrender at discretion, except only so far as the terms of their capitulation or convention shall have guarded them. In the Capitulation of Governor Hamilton (a Copy of which I inclose) no stipulation is made as to the treatment of himself or those taken with him. The Governor indeed when he signs, adds a flourish of reasons inducing him to capitulate, one of which is the generosity of his Enemy. Generosity on a large and comprehensive Scale seems to dictate the making a signal example of this gentleman; but waiving that, these are only the private motives inducing him to surrender, and do not enter into the Contract of Colonel Clarke. I have the highest idea of the sacredness of those Contracts which take place between nation and nation at war, and would be among the last on earth who should do any thing in violation of them. I can find nothing in those Books usually recurred to as testimonials of the Laws and usages of nature and nations which convicts the opinions, I have above expressed, of error. Yet there may be such an usage as General Philips seems to suppose, tho’ not taken notice of by these writers. I am obliged to trouble your Excellency on this occasion by asking of you information on this point. There is no other person whose decision will so authoritatively decide this doubt in the public mind and none with which I am disposed so implicitly to comply. If you shall be of opinion that the bare existence of a Capitulation in the case of Governor Hamilton privileges him from confinement, tho there be no article to that effect in the capitulation, justice shall most assuredly be done him. The importance of this question in a public view, and my own anxiety under a charge of a violation of national faith by the Executive of this Commonwealth will I hope apologize for my adding this to the many, many troubles with which I know you to be burthened. I have the honor to be with the most profound respect & esteem Yr. Excellency’s mo: obedt. & mo: hble. servt.,
P.S. I have just received a Letter from Colo. Bland containing information of numerous desertions from the Convention Troops (not less than 400 in the last fortnight). He thinks he has reason to believe it is with the connivance of some of their officers. Some of these have been retaken, all of them going northwardly. They had armed themselves with forged passports, and with Certificates of having taken the oath of fidelity to the State, some of them forged, others really given by weak Magistrates. I mention this to your Excellency as perhaps it may be in your power to have such of them intercepted as shall be passing through Pennsylvania and Jersey.
Your letter inclosing the opinion of the board of officers in the case between Allison and Lee is come safe to hand after a long passage. It shall be answered by next post. TH: J.
RC (DLC: Washington Papers). Tr (DLC: Jefferson Papers). RC is in an unidentified hand but with the last paragraph of the postscript and both signatures in TJ’s hand. Endorsed by Washington: “Govr: Jefferson July 17th: 1779 ansd 6 Augt.” Enclosures: Phillips to TJ, 5 July 1779; Articles of Capitulation signed by Hamilton at Vincennes, 24 Feb. 1779 (copy in DLC: TJ Papers; printed in George Rogers Clark Papers, 1771–1781, p. 168).
On the Hamilton case generally; see TJ to Bland, 8 June 1779, and references there. A letter from Colo. Bland: Missing. On the desertions from the convention troops, see, however, Phillips to Bland, 3 July 1779, Bland Papers description begins The Bland Papers: Being a Selection from the Manuscripts of Colonel Theodorick Bland, Jr. description ends , i, 141–2, and Proclamation of Continental Board of War, 26 July 1779, printed in Official Letters description begins Official Letters of the Governors of the State of Virginia, ed. H. R. McIlwaine description ends , ii, 22, note.