Morris Town March 26th 1780
We The Commissioners appointed by Your Excellency “to treat, confer, determine and conclude upon a General Cartel for the exchange and accommadation of prisoners of war including the troops of The Convention of Saratoga and all matters whatsoever which might be properly contained therein” beg leave to report.
That persuant to Your Excellency’s instructions, we met Major General Philips The Honorable Lt Col. Gordon and Lt Col. Norton, commissioners on the part of His Excellency General Sir Henry Clinton, at Amboy, the 9th instant, and the day following had an interview with them on the subject for which we were respectively deputed.
That we found the powers of The British Commissioners liable to the same objections which had frustrated all former endeavours to settle a general Cartel; and were compelled, as well from the express tenor of our own powers as from the indispensable nature of the objections themselves to decline a negotiation for which on their side there was no sufficient authority. Your Excellency will perceive by the annexed copy of Sir Henry Clinton’s commission, that he acknowledges no power from His Britannic Majesty as the basis of the proposed treaty; and the subjoined minutes of the proceedings will show substantially what passed in the conference upon this subject. We omitted there an objection which we occasionally made in the course of conversation to the caption of The British powers.
We think it unnecessary to detail here the reasons assigned for our objections, as we deem them too evident to need elucidation and as most of them have been stated, on former occasions, in the strongest and clearest manner by Your Excellency’s commissioners. But we cannot forbear remarking how extraordinary it must appear that such repeated attempts have been made to establish a Treaty the ostensible operation of which is to extend through the war, while its real one must at best be limited to the continuance of a particular officer in command, having no other support than his personal faith and personal influence.
While we lament that our commission has not had an issue answerable to its humane intention and to Your Excellency’s wishes, we shall be happy to find our conduct meets your approbation.
Ar. St Clair Mr Gl
Ed. Carrington Lt Colo. Arty
Alex. Hamilton L. Col.
DLC: Papers of George Washington.
Amboy March 10th-14 1780.
Minutes of the proceedings of the Commissioners, on the part of His Excellency General Washington and of His Excellency General Sir Henry Clinton.
The Commissioners being met, agree to the following preliminaries.
That copies of the Powers should be interchanged, and they were interchanged accordingly.
That the limits of the neutral ground should extend three miles round Amboy, that Town being accounted the Center.
That two British Dragoons be stationed at the ferry opposite on Staten Island for the purpose of forwarding expresses and that no molestation be given by either party to any express, that may be sent from the Commissioners to either respective Head Quarters.
It is agreed upon that if any controversial points should arise, they might be debated upon, and the opinion on them given on the following day.
The hours of meeting to be at Eleven oClock in the morning, and to adjourn at Three oClock.
Agreed to adjourn till tomorrow Saturday March 11th.
Amboy March 11th 1780.
The conference was resumed.
The Commissioners from Sir Henry Clinton, having entered upon the business of the Negotiation, proceeded to examine the powers vested by General Washington in his Commissioners, and find them to be fully adequate for the purposes for which the Commission is met, and are therefore, willing and desirous to enter on the business of a General Cartel and General exchange.
The Commissioners from General Washington then delivered the minute subjoined.
The Commissioners on the part of His Excellency General Washington having examined the Powers produced by the Commissioners from Sir Henry Clinton, are sorry to find them essentially defective, professing the settlement of a General Cartel and General Exchange, on no other foundation than the private faith of the present Commander in Cheif, whereas they think an agreement of such importance and intended to have a permanent operation can have no sufficient basis without the sanction of national authority and national faith. They therefore and as their powers expressly require them to treat on these terms, are obliged to decline all negotiation unless the Commissioners from Sir Henry Clinton can be vested with more ample Powers in which case they would be happy to give their concurrence in a cartel of the most equitable liberal and generous nature.
The Commissioners from Sir Henry Clinton delivered the following paper in answer to the foregoing objections to their powers.
The Commissioners from His Excellency General Sir Henry Clinton are under the greatest concern at the unexpected objections made to the powers under which they act by the Commissioners from General Washington; They decline entering upon any political discussion on the matter but declare themselves of the opinion that their powers seem to them to go fully to a negotiation for a General Cartel and General Exchange.
Impressed with the strongest feelings of humanity for the suffering Prisoners on both sides, they have declared and do declare themselves ready to enter upon a negotiation for a General Exchange, wishing to persue that local operation, provided the more extensive plan of a General Cartel cannot be effected, and to do so under every description of humanity, liberality and justice.
If the Commissioners from General Washington are not vested with powers for entering upon a General Exchange it is to be extremely lamented, but the Commissioners from Sir Henry Clinton must be excused for not admitting it possible that any mistake should arise in the object of the proposals sent in to General Washington, signed by Major General Phillips, and Colonels Magaw and Mathews, Lieutenant Colonels Ely and Ramsay, and approved of by Sir Henry Clinton: It must be allowed those proposals go pointedly and directly to a General Exchange to be settled upon the faith of the Commanders in Chief of the British and American Armies, not meaning however to exclude the intention of a General Cartel, supposing it possible to effect so good a purpose.
The Commissioners from Sir Henry Clinton beg leave to assure those from General Washington, how unhappy they are to find that they conceive their instructions given them by General Washington to be of such a nature as to debar them from entering upon the business for which purpose the meeting has been held at Amboy.
The Commissioners from Sir Henry Clinton conceiving the powers vested in them by His Excellency to be fully adequate to answer the end of adjusting either a General Exchange of Prisoners or of settling a General Cartel, have now only to lament that their wishes and endeavours prompted by humanity alone to releive Persons who have so long suffered in captivity, should have failed of success.
The Commissioners from Sir Henry Clinton desire to express their great satisfaction at having met Gentlemen of liberal principles and who have seemed to be equally disposed with themselves to promote the humane purpose of giving relief to captivity, did they presume that their powers were adequate to their wishes.
Adjourned till tomorrow Sunday March 12th.
Amboy March 12th 1780.
The Conference was resumed, and the Commissioners from General Washington produced the following paper.
The Commissioners on the part of His Excellency General Washington sincerely unite with those of His Excellency General Sir Henry Clinton, in lamenting that the purpose of the present meeting acknowledged to be infinitely interesting to humanity, is unhappily defeated like all the former by a fundamental defect in the Powers of the British Commissioners. They cannot however imagine how the objections now made could have been unexpected, as they are obvious and conclusive in themselves and have been uniformly insisted upon on every similar occasion with no new motive to depart from them, but with many additional ones to adhere to them. They omit a repetition of the reasonings which they have urged in conversation in their support, as the British Commissioners decline “political discussion.” They agree in opinion with these Gentlemen, that their powers seem to go fully to a General Cartel and General Exchange, but it is on this very account they object to them, because they have an ostensible object without the essential characters to make that object practicable. The object of the powers on both sides being a General Cartel, and this being impossible for the reasons assigned, the Commissioners from General Washington conceive that neither they nor the Commissioners from Sir Henry Clinton have any authority to enter into a partial or particular agreement, and that therefore as well as for other still more important considerations, they cannot with propriety treat of a General Exchange distinct from a General Cartel. Any such transaction must be independent of the Commission, consequently merely of a private nature and without validity. They beg leave to observe that General Sir Henry Clinton’s powers connect the General Cartel and General Exchange together—and do not make them alternatives, of course do not warrant the seperation now proposed.
The Commissioners from General Washington believe that the design of the proposals mentioned by Sir Henry Clinton’s Commissioners has not been misunderstood. But these proposals only made a part of the transactions which produced the present meeting. The letter from General Washington to Colonels Mathews, Ely and Ramsay, while it acknowledges that as far as the proposals go, they are generally upon just and liberal principles, clearly intimates that they do not comprehend every thing necessary, and only considers them as capable of being improved into an agreement of mutual and permanent advantage. His letter of the 29th of February to His Excellency Lieutenant General Knyphausen expressly designates the purpose of the meeting to be “to negotiate a General Cartel.” General Knyphausen’s letter in reply literally consents to that purpose. The Powers of the British Commissioners profess the same—It was expected that aware of the difficulties which had before existed, and which were evidently not to be surmounted on our part, the British Commissioners from Sir Henry Clinton would come with powers not liable to the same substantial objections, which had prevented the efficacy of all former attempts.
Flattered by the favourable opinion, which the Commissioners from Sir Henry Clinton are polite enough to express of their Principles and dispositions, the Commissioners from General Washington take pleasure in declaring, that they on their part have the highest sense of the liberality and humanity of the Gentlemen with whom they have the honour to confer. They are firmly persuaded, that the insufficiency of their powers is the sole impediment to the success of the negotiation, and that had there not been this impediment the endeavours would have been mutually sincere towards giving the desired relief. The Commissioners from General Washington feel the deepest regret at being obliged to return without having accomplished the end of their mission—the more so as this effort failing seems to leave little prospect that any future can succeed. So far however from being sensible of any imperfection in their own powers by which they are rendered inadequate to their wishes, they are happy in feeling themselves fully authorised to enter into a treaty that can alone afford compleat relief to captivity. Experience has proved that nothing short of a General Cartel can remove the numerous inconveniences and distresses to which the prisoners in this War have been exposed; and it cannot be too much deplored, that partial and temporary expedients should be preferred to a measure which offers so decisive and durable a remedy. It is not a particular or momentary interest that ought to influence transactions of this nature, but principles of general humanity, aiming at no other end than the mere relief of the unfortunate Prisoner.
But while the Commissioners from General Washington are unhappily precluded from executing their Commission or consulting their own wishes, they cannot forbear expressing a hope that notwithstanding the obstructions in the way of a General Cartel, the business of exchanges may return into its old channel and be again carried on without interruption on the equitable terms which have heretofore from time to time obtained. The not being able to give so full relief as might be wished is certainly no argument for withholding all relief whatsoever.
Adjourned ‘till tomorrow Monday March 13.
Amboy March 13th 1780.
The Conference was resumed and the Commissioners from Sir Henry Clinton produced the following paper.
The Commissioners from His Excellency General Sir Henry Clinton unwilling to prolong a meeting which they are sorry to find must terminate so contrary to the sanguine hopes and benevolent intentions with which they entered on the present Commission, find it however necessary to reply to the assertions contained in the minutes delivered to them by the Commissioners from General Washington, wherein they intend to invalidate the Powers granted by Sir Henry Clinton by advancing a fact which they endeavour to establish as a maxim to evince the clearness and obvious intentions of the purport of the negotiation, but which conclusion the Commissioners from Sir Henry Clinton can by no means admit to be deduced or inferred from it. They must assert that the proposals concerted between Major General Phillips and Colonels Magaw, Mathews and Lieut. Colonels Ely and Ramsay and approved by Sir Henry Clinton were expressly designed to serve as a Basis whereon to treat for a General Exchange of Prisoners upon the mutual faith of the Commanders in Chief of the British and American Armies, with a hope also, that the proposals might be improved into an agreement of permanent advantage to both parties.
The Commissioners from Sir Henry Clinton must be of the opinion that the powers they are vested with comprehend an alternative, for a General Cartel involving in its consequences a General Exchange, the latter need not have been expressed had it not been intended to imply a General Exchange might still be adopted, provided the more desirable purpose of a General Cartel could not be effected.
The American Commissioners having stated a new fact, drawn from the correspondence between General Washington and Lieutenant General Knyphausen, it becomes proper to observe upon it, that General Sir Henry Clinton having left instructions with Lieutenant General Knyphausen for carrying the intentions into force for a meeting of Commissioners, it will appear by a reference to the Lieutenant General’s letter of the 19th of February 1780 to General Washington that the spirit and tenor of the aforementioned proposals were precisely adhered to as in that letter, it is expressly declared that the Commissioners were to meet for the purpose of settling a “General Exchange,” and although in the Lieutenant General’s letter, as quoted by the American Commissioners, there is a customary and civil recapitulation of part of General Washington’s letter of the 29th of February 1780, expressive of his wishes that a General Cartel might be settled, it by no means debarred, nor did it in any manner preclude, the avowed intention of a General Exchange, the desireable purpose which Lieutenant General Knyphausen had already expressed in His Excellency’s first letter to General Washington.
Under this description of the matter which the Commissioners from Sir Henry Clinton apprehend will appear, on an impartial review of the correspondence and transactions previous to this meeting, to be justly founded, they are well warranted to declare that it seems to them not possible for the American Commissioners, who they now have the honour to meet, to infer that General Washington should have supposed a delegated authority from Great Britain essential to the purpose of the present meeting, and they therefore, must beg to be excused when they testify their surprize at the objections made to their Powers, which certainly by no prior declaration, expression, or implication they could foresee would have happened.
The Commissioners from Sir Henry Clinton take leave to observe that they conceive the American Congress have never intended a General Cartel or a General Exchange unless upon national ground which must ever frustrate the humane purposes the British Commissioners so ardently wished to have effected.
Adjourned ‘till tomorrow Tuesday March 14th.
Amboy March 14th 1780.
The Conference was resumed and the Commissioners from General Washington produced the following paper.
The Commissioners from His Excellency General Washington reluctantly prosecute a discussion which promises no advantage to the purpose of the meeting, in which alone they are interested; but find themselves obliged to it, by the Commissioners from His Excellency General Sir Henry Clinton having involved a proposition foreign to the simple and natural import of their own powers, and endeavouring as they conceive by a forced construction to justify that proposal. The Commissioners from General Washington have too entire a confidence in the candour of the British Commissioners to suppose they have any such intention, but in the present case, if their interpretation of the powers be right, the operation of the offer respecting a General Exchange is to give the negotiation on the side of the British Commissioners a degree of credit to which it is not entitled, by manifesting an apparent willingness to do an act desireable in itself, but which in reality they are not empowered to do.
The Commissioners from General Washington deny not, that the object of the proposals between Major General Phillips, and Colonels Magaw, Matthews Lieutenant Colonels Ely and Ramsay was such as described by the British Commissioners. They have already admitted it. But they still maintain that the ground of the present meeting has been changed, by subsequent and more authentic acts, and extended from a temporary to a permanent agreement, from a particular exchange to a general cartel. The letter the British Commissioners are pleased to cite from His Excellency Lieutenant General Knyphausen of the 19th of February rather confirms than invalidates this position; for that also admits the idea of improving the proposals into an agreement for permanent advantage. It is conceived that the ideas of a permanent agreement and of one depending on the mere authority of a Commander in Chief, of course liable at any time to be violated by his successor are contradictory and irreconcileable. But if it be a good rule as it has always been held to be, to interpret antecedent by posterior acts there can remain no room for doubt—General Washington’s letter of the 29th of february and Lt General Knyphausen’s of the 4th Instant, both which were before referred to make a General Cartel the express and sole purpose of the meeting. It is apprehended it would be dangerous to admit that mode of explanation by which the plainest stipulations of official writings may be done away by resolving them into the mere forms of a customary civility. Nor can it but appear somewhat strange, that there should be a difference in opinion about the purpose of the meeting when Sir Henry Clinton’s powers themselves furnish so clear a comment; the avowed object of them being a General Cartel. The Commissioners from General Washington urge that a General Cartel can have no other foundation than national authority and national faith, without which it must be nominal and illusory. They therefore repeat their assertion, that after what had passed upon the subject in former interviews, it was to be expected, that either this purpose would not have been professed at all or Commissioners would have come with national powers to carry it into execution. The sense and practice of mankind must decide whether the principles on which the concurrence of the respective Governments is required be well founded or not, and to these the Commissioners from General Washington venture to appeal with confidence.
The Commissioners from General Washington flatter themselves that the British Commissioners will cease to think it impossible for them to have drawn the inference, “that General Washington supposed a delegated authority from the Court of London essential to the purpose of the present meeting”—when they possitively declare, as they before intimated, that this was absolutely the case—and when they add, that he considers a General Cartel on any other Basis, as inadmissible, delusive and impracticable.
The Commissioners from General Washington find no reason to alter their opinion, that the powers from Sir Henry Clinton, do not authorise the proposition for a General Exchange, distinct from a General Cartel, and for the reason already given that they stand connected with each other and not as alternatives. The observation of the British Commissioners, deduced from a general exchange, being the consequence of a general cartel, only serves to show that there was rather a superfluous expression; but without an application entirely new of the common signs of language, it never can be construed into an alternative—Had this been intended, a mode of expression, admitting no ambiguity, would doubtless have been preferred. Instead of that, which has been made use of, nothing could have been more easy or natural than to have said, a General Cartel or General Exchange.
The construction given by the Commissioners from General Washington appears the more evident, by a comparison of one part of the Powers with the other. The preamble, which delineates the purpose of the meeting confines it to a General Cartel; the authorising clause speaks of a General Cartel and General Exchange. It must be supposed that the last was nothing more than an excess of terms, and could not mean to go beyond the acknowledged purpose of the meeting.
The Commissioners from General Washington entirely concur with the British Commissioners in opinion, that the Honourable the Congress never intended a General Cartel but on national ground, because this determination has been frequently announced and because they conceive there cannot possibly be any other proper ground; and they are persuaded that Congress will never depart from the Principles, which have governed Nations at war in every similar treaty. But so far as relates to actual exchanges, to as great extent as the proportion of Prisoners on both sides will permit the Commissioners from General Washington, declare in the most explicit manner that they may at any time be carried into effect if the British Government or British General be so disposed on the terms which have prevailed in the course of the War, or on any others consistent with mutual justice and mutual advantage.
The Commissioners from Sir Henry Clinton closed the correspondence by giving the following as their final answer.
The Commissioners from His Excellency General Sir Henry Clinton conceive they have uniformly declined entering into any discussion on the subject of the objections to their Powers, made by the Commissioners from General Washington farther than by such assertions as might go to prove facts and explain, in the real sense, any parts of the previous leading matters which were thought necessary for producing this meeting. They take a liberty, of imagining that, however ingenious the reasonings of the American Commissioners may be, they will not convince nor have they confuted.
The British Commissioners assert that a General Exchange has been an object desired on their part and that they conceive themselves vested with powers from His Excellency General Sir Henry Clinton to give so humane a purpose a full operation, supposing it could not be agreed to enter on a Negotiation for a General Cartel.
This closed the conference on the Commission.
Ar. St Clair,
Compared the above with the original draft of the minutes and found it to be a true Copy.