From the Commissioners for Prisoner Exchange
Camp Valley Forge April 15th 1778
To His Excellency George Washington Esquire General and Commander in Chief of the Forces of the United States of America.
We the Commissioners appointed by Your Excellency, “to confer, determine and agree upon a Treaty and Convention for the exchange of Prisoners of War, and for all matters whatsoever which may be properly contained therein”1 beg leave to report—
That, agreeable to Your Excellency’s orders, on monday the 6th of April, we met at New Town, in Bucks County, the Commissioners appointed by General Sir William Howe, for the purposes as expressed in their commission, “of taking into consideration all past transactions, relative to the exchange of prisoners, to adjust the differences that have so long subsisted in regard to them, to remove all difficulties, that may arise, in carrying into execution a general exchange of prisoners, with both parties, at this time, and finally to establish a regular, and explicit cartel for the future.”
The next day we entered upon business. The Commissioners, on the part of General Howe, opened it, by informing us that he had been made acquainted with our objections to his commission, but that he would not consent to the alteration, we had proposed respecting an insertion of the powers, under which he acted: That he meant the Treaty to be of a personal nature, founded on the mutual confidence and honor of the contracting Generals; and had no intention either of binding the nation, or extending the cartel beyond the limits and duration of his own command. They declared themselves ready to treat with us on this footing and with their present powers, which they deemed adequate to the purposes of our meeting.
In answer, we assigned them our reasons at large for thinking there was a material defect, in their powers which must render any Treaty, we could form, nugatory and unequal; nugatory, because the private faith of an individual could not in the nature of things be a competent, or proper security for a treaty of public import; and unequal, because, on the one hand, from the express terms of our powers, the public faith would be plighted for our engagements, and on the other, General Howe alone would be bound for the performance of theirs.
The Commissioners from General Howe, in the course of the discussion intimated an impropriety in treating with us, on a national ground, in a contest of such a nature as the present which might imply an acknowledgement inconsistent with their claims. We observed to them that if there was any inconsistency at all, it would operate equally against the forming a cartel, on any principle whatever, and against the whole business of exchange; but that the measure was calculated for mutual advantage and must justify itself on its expediency and necessity. We supported our observation by precedents, drawn from practice, in like cases; and in order to obviate every scruple, and to remove, as far as was in our power, every impediment to the execution of our commission we proposed, that a clause should be admitted into the cartel, declaring that no expressions contained in it should be construed to affect the political claims of either country, in any thing, not directly necessary to the due and faithful observance of the Treaty. This we thought a good expedient for reconciling difficulties on both sides.
We agreed to come to a final determination the next day.
We met accordingly, and after some mutual explanations, we informed General Howe’s commissioners, that on the most mature deliberation, we found ourselves obliged to adhere to our objections to their commission and could by no means think ourselves authorised to treat with them unless their powers were made correspondent to our own. They then proposed, that two of their number should immediately proceed to Philadelphia, to consult General Howe again upon the subject.2 This proposal we chearfully assented to in hopes that he would ultimately put it in our power to answer the desireable purposes of our appointments.
On the return of these Gentlemen from Philadelphia3 they informed us that General Howe persisted in the idea, of a personal treaty on his part, and refused to enlarge his powers, by the declaration required, on ours. We then proposed to state our objections in writing and to receive their answer in the same manner: The former, we did, as follows—
The Commissioners appointed by His Excellency General Washington to confer, determine and agree upon a Treaty and Convention for the exchange of prisoners of war and for all matters whatsoever that may be properly contained therein—
Having examined the powers on the part of General Sir William Howe to his commissioners, and compared them, with their own, observe a difference, which in their apprehension, is very essential and important: General Washington, in his commission, expressly declares it to be given in virtue of full powers to him delegated; General Sir William Howe, in his commission makes no acknowlegement of any authority by which he acts.
It appears to be the intention of the respective Generals mutually expressed in their powers to do an extensive and permanent act, which shall not only effect a settlement of past differences, and a general exchange of prisoners, for the present; but shall extend to the establishment of a regular and explicit cartel in future. The objects of this cartel will not be wholly of a military nature; but will include matters of very interesting civil concern. It is apprehended, that the power of entering into a Treaty of such importance is not naturally inherent in military command, and that it cannot be exercised by either of the Generals, as an official act, meerly, in virtue of their military capacities; but must be founded on special authority, delegated for the purpose. This authority, according to reason and universal practice, ought to be declared, otherwise it will not appear, nor have the least efficiency or operation.
That if this authority does not exist, the negociation can have no sufficient foundation. It must rest solely on the footing of personal confidence. The public faith cannot be considered as pledged, for the performance of any engagements, in consequence of it, and these may of course be overruled at pleasure. Could the credit of individuals be supposed great enough, in preservation of personal honor to prevent the interference of superior authority—their influence could not, at any rate, extend beyond their own command and should the casualties of war remove them, their successors would not be, in any manner, bound by their engagements.
In fine, it is conceived, there would be a manifest impropriety in conducting a business of this nature on personal ground, as such a measure would be destitute of that validity, which the solemnity of a public act, alone can give, and which the magnitude of the objects it is intended to comprehend, indispensibly requires. Personal confidence, or the mutual credit of individuals is too slender and unsubstantial a basis, for concerns of so great variety and extent, as the Treaty, in contemplation must necessarily involve.
Rob: H. Harrison
|April 10th 1778|
|To||Colonel Charles O Hara|
|Colonel Humphrey Stephens|
|Capt. Richard Fitzpatrick|
In return, the commissioners, on the part of General Howe, delivered us a paper, containing a writing, as follows,
The Commissioners appointed by His Excellency Sir William Howe, to take into consideration all past transactions, relative to the exchange of prisoners, to adjust the differences, that have so long subsisted in regard to them, to remove all difficulties, that may arise in carrying into execution a general exchange of prisoners, with both parties at this time, and finally to establish a regular and explicit cartel for the future; having received the objections made to the commission, under which, they act, from the Commissioners appointed to meet them for similar purposes by General Washington, are much concerned to find, they are likely to prove an obstruction to the execution of so desireable a purpose; They conceive the powers delegated to them by their commission to be sufficient and ample, for effectually accomplishing the purposes therein contained; and hereby declare themselves ready and desirous of immediately entering upon a Treaty with the Commissioners appointed by General Washington, for carrying into execution the different objects of their commission.
Charles O Hara
Richard Fitz Patrick
|April 11th 1778|
|Lt Col: Harrison|
|Lt Col: Hamilton|
|Elias Boudinot Esqr.|
We immediately prepared a reply to the foregoing writing which we offered to General Howe’s commissioners; but they refused to read it alleging, that if we could not meet them on the commission they now had, the negociation was at an end. We then read to them the reply we had prepared, to the following effect—
The Commissioners appointed by His Excellency General Washington, to confer, determine and agree upon a Treaty and convention, for the exchange of prisoners of war, and for all matters whatsoever that may be properly contained therein are inexpressibly concerned to find—
That the Commissioners on the part of General Sir William Howe should think it necessary to make the objections stated to their powers and supported as they apprehend by the most conclusive reasons, an insurmountable obstacle to the progress of a negociation intended to answer the most benevolent and estimable purposes.
As General Sir William Howe must be supposed fully empowered, to enter into the Treaty, his commission imports, they can conceive no sufficient reason, for not declaring his powers, and would flatter themselves, that nothing can be easier, than to remove the cause of their objections, and to proceed in the business on admissible terms. They are ready and solicitous to treat on fair, proper, and equal ground; such as will give efficacy to their proceedings and place a public act on the foundation of public authority.
Rob: H. Harrison
|April 11th 1778|
|To||Col: Chs O Hara|
|Col: Humpy Stevens|
|Capt. Richard Fitz Patrick|
We shall be happy if our conduct on this occasion meets with Your Excellency’s approbation. We were fully sensible of your solicitude for the success of a Treaty designed to provide an effectual and durable remedy, for those calamities, with which the state of captivity has been hitherto afflicted. We are sorry the views of General Sir William Howe were so far different from yours as to render them impracticable. Your powers to us were the standard, by which we were to judge of the sufficiency of his—The former are founded on the broad basis of national faith; the latter on the narrow one of private faith. A dissimilarity, in so material a point, appeared to us a solid, and on our part, an insuperable objection. We considered the formation of a Treaty, by which such momentous concerns would be affected; with no other sanction, than the personal honor and interest of an individual—not only as incompatible with our commission; but as repugnant to reason, to the nature of the business, and to common usage, in similar cases. A Treaty so formed would, in our conception, be merely nominal or at best of temporary operation—certainly ceasing with personal command—liable, at any time, to be violated by public authority, without the imputation of public dishonor, and highly derogatory to the dignity of these United States.
Rob: H: Harrison
DS, in Alexander Hamilton’s writing, DLC:GW; copy, DLC:GW; copy, enclosed in GW to Henry Laurens, 18 April 1778, DNA:PCC, item 152; copy, DNA:PCC, item 169. This letter, along with other correspondence about the prisoner exchange, was published in newspapers such as the Pennsylvania Gazette (York), 2 May 1778, as a report of “The Commissioners appointed by his Excellency General Washington, to meet, confer, determine, and agree upon a treaty and convention for the exchange of prisoners of war, etc.”
1. For the commissioners’ appointments, see GW’s Grant of Authority to the Commissioners for Prisoner Exchange, 28 Mar., and GW to William Howe, 4 April, n.7.
2. The men to be sent were Charles O’Hara and Richard Fitzpatrick (“Boudinot’s Notes of Two Conferences,” description begins “Colonel Elias Boudinot’s Notes of Two Conferences Held by the American and British Commissioners to Settle a General Cartel for the Exchange of Prisoners of War, 1778.” Pennsylvania Magazine of History and Biography 24 (1900): 291–305. description ends 295).
3. Elias Boudinot noted that the British commissioners returned from Philadelphia so late on 9 April that discussions did not resume until 10 April (ibid., 296).