From William H. Winder
Washington City Feby 8th 1814
I here with beg leave to transmit the reflections which you consented to peruse upon the question of retaliation now depending between my government & that of Great Britain. They have been delayed by a state of indisposition which has considerably disqualified me for mental exertion and may on that account be less worthy of consideration than they otherwise would have been. But Sir I assure myself that you will read them in the same state of mind as if you had not taken any step in this business—and in the same spirit of candor & cordiality with which they were written. Permit me to embrace this occasion to assure you of the high & cordial esteem which I have the honor to be Sir your obt Servt
Wm H Winder
Washington City Feby 8th 1814
In consequence of the present state of the Question depending between the United States & Great Britain relative to prisoners of war and my peculiar situation, I beg leave, under the permission which you have granted me, to submit some reflections, which appear to me calculated to lead at least to a partial relief, of a part, at any rate of those persons, who are now prisoners.1
Without touching, at present, the question how far the United States have a right to resist the pretension of Great Britain to subject to trial under her municipal Laws her native subjects found in arms against her within her own territory—there are several considerations of a nature it seems to me to induce a doubt whether under present circumstances it is either prudent and politic, or obligatory on the part of the United States to resort to the course of retaliation as a mean of resisting this pretension.
The principle upon which Great Britain assumes the right to try & punish these men is precisely that under which she has practised the impressment of her sailors from on board our vessels for the last twenty years. This practice has been a subject of diplomatic correspondence & negotiation between the two governments for the whole of that period. Great Britain has continually insisted upon her right to the services of her native subjects under this principle of allegiance—and has exercised that right by taking her sailors from our ships. In doing this native american sailors were in many cases taken—sometimes from the difficulty of discrimination & sometimes, perhaps most frequently from the insolence of British officers & a disregard of our rights. For this reason the United States have uniformly opposed this practice of impressment from on board their vessels, as also upon the further & distinct ground that this practice was an infringement of their sovereignty. But in no part of the frequent & elaborate correspondences on this subject, have the United States attempted to deny to the British Government the right to the services of its native subjects—on the contrary they have always offered to provide the means by which Great Britain might reclaim & recover her sailors without infringing our national sovereignty. Our negotiations had in view to regulate the British claim so as to prevent its interference with our national sovereignty not to extinguish it.
On account however of the inherent difficulties of the subject and an obstinate perseverance in the practice of impressment from our vessels no agreement has been made between the parties—and that practice and claim as discussed between the parties during so long a period is now a prominent if not the principle cause of the war between the two countries. But the claim now set up by Great Britain to try & punish these twenty three men is the direct & necessary consequence of this claim to the services of her native subjects which was constantly admitted on our part and an offer made to ensure the exercise of it in a manner not interfering with our Sovereignty.
I have not percieved in the correspondence between the two Governments any explicit determination on the part of our Government to limit the provisions of the projected treaties so as to ennable Great Britain to recover merely such of her sailors as had not been naturalized. But granting that the United States have in the course of these discussions distinctly disclosed this intention yet they certainly have no where discovered a design to protect even naturalized British subjects against the operation of the municipal Laws of their native country when they had again come within her territorial limits, without a violation of our rights or sovereignty. It seems then that the mode only in which Great Britain has exercised this acknowledged right has been a subject of neg[oti]ation for twenty years. Or even granting that we have contested the right itself—still if it could be a subject for such long suffering & long forbearing negotiation before we would resort to the extremity of war—surely the exercise of that right after the declaration of war in a manner which does not affect the Sovereignty of the United States cannot be considered so flagrant a violation of the laws & usages of war as to justify this species of retaliation—a species of retaliation never applied but where in the conduct of a war an enemy perpetrates without a shadow of right a military act of barbarity which shocks the feelings of mankind. But at all events with a full knowledge of this claim on the part of Great Britain & after so long & forbearing a negotiation upon it when exercised in its most odious and least justifiable form I respectfully submit whether it would not have been just and right both with respect to the enemy and our belligerent citizens to have distinctly declared before hand that a further attempt on the part of Great Brittain to exercise the right now in question would be repelled by the course which has now been adopted.
This reasoning seems to me entitled to considerable weight when applied to naturalized British Subjects—it must be even much greater when applied to those who are not naturalized. Supposing the twenty three men in question to be of this latter description—it does appear to me that the readiness always professed by us to ennable Great Brittain to recover at least her subjects not naturalized upon a proper claim & representation being made for that purpose was a relinquishment of the right to retaliate in this case if it did not entirely concede to Great Britain the right to act as she has done.
That the twenty three men sent to England are native British subjects is admitted on all hands. It is not ascertained that any & much less that all of them have been naturalized under the laws of the United States—and since it is perfectly certain that in nine cases out of ten & I believe ninety nine out of an hundred persons of this description do not incur the expense and take the trouble of being naturalized—the naturalization of these men ought not be presumed at least so far as to make that presumption the foundation of a resort so sanguinary & extensively fatal in its consequences as retaliation will become.
I am ready to grant that in negotiation before war to preserve peace, a nation may consistently yield something to peace, which she will be justified in asserting should war be forced upon her in spite of her pacific views & conciliatory endeavours—and I will not deny that it may be politic and proper for the United States, to extend her claim to protect British subjects even further than they have yet done owing to the peculiar circumstances of the United States. But this claim must be predicated upon such success in war or means which may render such success almost assured as will enable us to dictate sacrafices on the part of the British Government to our policy as well as our positive rights. But I most respectfully submit whether we are justifiable in attempting to force such concessions at any time by the course of retaliation and more especially under present circumstances.
But Sir should I be mistaken even in that course of reasoning and admitting it to be our intention to insist upon the principle that Great Brittain shall have no right to claim any of her subjects who may come to reside among us—it still remains a question, I think whether the act of Great Britain to which we refer is of such a character as to justify that species of retaliation which has been commenced. It is indisputable that the perpetual allegiance of all her native subjects is the law of Great Britain. It is also equally certain that the law of allegiance is as purely and entirely a municipal law as any other which can be concieved of and that it was considered by our Government as appears by the letter dated the 5th Jany 1808 from the Secretary of State to our minister at the court of St James2—and the bearing arms against & within the limits of a country to which one owes allegiance is by all laws treason & subjects the party to trial condemnation & punishment under those laws.
The three and twenty men sent to England are native subjects of the British realm, were taken in arms against that country within its territorial limits & have been transferred to its civil tribunals for the purpose of regular trial under its municipal laws upon a principle which has been a subject of long negotiation only in the mode of practice. Now I know of no case in which the ordinary operations of an undoubted municipal law of one nation have been thought to render it obligatory on another nation to resort to retaliation of this character. Overwhelming success in War and the peculiar situation of some persons to be affected by the operation of such law, or other circumstances connected with power to render it effectual—may have induced from political considerations a resort to this expedient. But if any case of this description can be found I am sure none can be found to go further. Are then the advantages of the war and the relative number of prisoners so much in our favor as to place us in this commanding position—surely not. And altho I will not allow myself for a moment to believe, notwithstanding the present state of things, that the United States will not possess themselves of Canada if the war continues—yet this may not and probably will not put them in possession of prisoners sufficiently numerous and important in rank and character to make the government of great Britain as sensibly alive to the effect of retaliation as the United States will necessarily be. For the British army will of course be drawn down towards Quebec as we advance into the country and upon the final extremity of that fortress being in danger of capture their superior fleet affords the means which will no doubt be used to withdraw the whole or the greater part of their force from the country. The inhabitants of that country will afford no subjects through whom the feelings of the British Government can be touched, while our extensive maratime frontier exposed to ravages from their navy will yield to them abundance of prisoners through whom the superior humanity of our Government will be tortured in every nerve.
The right of retaliation therefore in this view seems to me more than questionable—for suppose these three & twenty men had committed murder robbery, theft or any other crime before they left Great Britain & came to the United States & joined our army and upon their being again brought within the British territory were subjected to trial & punishment for those offences would it afford a ground of retaliation to the United States? The answer on all hands will be no—because they suffer according to the regular course of proceeding under a municipal law. But so they do in the present instance as unquestionably. There is then no right on the part of the United States to proceed in this course & the reflections which I have before presented incontestably shew that the present situation of the war does not render it politic.
In resorting to the step of retaliation which directly involves the fatal extremity of sacraficing so many lives even in the plainest cases a government would not be justified without having well ascertained that it would be the means of restraining the practices of the enemy—for if retaliation of this kind is not predicated upon a well grounded assurance that this will be the effect—it will subject the government to the corroding & horrible reflection that they have carelessly sacraficed so many lives. Is it then reasonable to expect in the present state of things and upon this question that retaliation will produce this effect on Great Britain? Besides the present advantage which she has in number and quality of prisoners and the probability as before stated that even in the utmost success which can reasonably be hoped from a continuance of the war, this ballance will not only not be changed but probably be increased against us—There are it appears to me striking and powerful considerations which will induce Great Britain to risque much, rather than recognize the principle contended for by the United States in this direct manner during a war too which may perhaps be considered as existing solely on account of her exercise of this very principle.
Elated as Great Britain necessarily is by the great and unexpected successes of herself & allies against the French in Europe and by what she may and no doubt will (tho without reason) consider her success in the war against the United States—her pride, at all times perhaps greater than her prudence & her humanity, will be inflated and hardened to an obduracy which will not allow for one moment to hesitate in asserting in the form objected to by us a principle which she has pertinaciously adhered to through twenty years of negotiation and upon which she finally risqued a war with the United States, at a moment too when her prospects from the state of affairs in Europe were of the most gloomy kind in comparison with what they now are.
It is not unworthy of remark too in this point of view that Great Britain has nothing to fear in relaxing on this point but towards the United States. She has felt much jealousy & Distrust towards us on account of the numerous emigrations of her subjects to the United States, whose happy condition affords so many temptations for the emigration of her subjects, especially that class from which she draws her soldiers & sailors that she might justly fear a desolating effect if she opposed no obstructions to the practice. With all these inducements & stimulants to proceed, removed as the government is so far from its subjects, habituated so long & constantly to look unmoved upon the distress oppression & ruin in which her political course necessarily involves so many—what chance can the government of the United States, which stands so nearly & closely connected with its citizens, & is not hardened by the habit of seeing ruin, misery & distress flow from its political course—have in entering into a contest of this nature with Great Britain. Sir no man can doubt, that, when the issue depends upon which government can longest endure to see the blood of its citizens flow from the alternate wounds of this retaliatory system, the United States will be compelled by its humanity and tenderness to shrink from the prosecution of the contest—and more especially when she has not half the means of touching the feelings of her adversary which can be employed to wound hers.
I beg leave also to suggest a doubt whether it was regular or politic for the United States to retaliate the confinement of these twenty three men even granting that retaliation was ultimately to be adopted. The confinement to which they were subjected preparatory to trial was not more severe and probably not so much so as that to which they would have been subjected as mere prisoners of war—and it was therefore not necessary to retaliate this nor any other preliminary step which does not enhance the suffering of the party. It would have been equally effectual and according to my impression of the usual course in such cases more regular—and certainly more politic to have declared to the British Government upon recieving notice of the intended trial of these men that retaliation would be resorted to in the event of an execution of any of them. This course would have been equally effectual to have deterred Great Britain from proceeding to extremities while it would have left the United States at full liberty to have selected the most favorable moment for the attainment of her object—and at the same time free from embarrassment should a state of things not have occurred to authorize a hope of success—while it would comp[le]tely have saved the principle. But in the present enormous disproportion in the number of prisoners—or in the event—quite possible—of a more disadvantageous state of things arriving after retaliation had actually commenced the United States might find themselves in circumstances which would compel them to make a formal abandonment of a principle which they deem important & which might otherwise have been reserved entire & perhaps strengthened by this protest.
Another advantage—certainly of some consequence—would have resulted from this course. The american officers would already have been saved a long & painful confinement & which may still be protracted by persisting in this course to the most tedious & fatal length even should this matter never be driven to extremity—while at the same time the course of exchange would have remained unimpeded & the United States would have been able so to have managed it as to commence retaliation when its effect would have been unquestionable.
It appears to me therefore that the United States ought to place themselves in that situation without delay & at once proceed to exchange so far as she has the means—accompanying it with the declaration that she relies confidently that Great Britain will never be so lost to a sense of humanity & justice as to execute these men—but that the United States will hold themselves bound to retaliate in case the British Government should be so forgetful of itself as to execute any of them.
Can there be a doubt then that it is prudent & proper nay necessary for the United States to avoid the extremity of this question at least untill they shall have the means of more effectual coercion? Is it not much more easy to wave the further prosecution of this course until a more propitious state of things arrives, than it will be to stop or decline it after Great Britain shall have committed the first fatal act or after a vain effort shall have been made to make her feel through the prisoners in our hands? Should the United States wait for that fatal moment depending upon the mistaken calculation of British clemency or forbearance, what resource will then be left? To retreat will be next to impossible—to proceed will be torture so much the more excruciating that it will be endured in vain and might have been avoided.
No reliance ought to be placed upon the delay which has already occurred. The fact upon which their guilt is made to depend hapened in Canada the witnesses to prove it were all there & none of the officers who were present & who might prove it went to England before the latter part of last autumn & more of them will follow as soon as the navigation opens. Untill their arrival the evidence was wanting to prove their offence. Besides whatever may be thought upon this subject elsewhere—in England the principle of perpetual allegiance is universally admitted to be a part of their law—and it is not by any means certain that they would not court an event which would enable them to stimulate and rouse their people by all the false but animating coulouring which they would not fail to give to an attempt by a foreign nation to prevent the execution of their undoubted municipal laws by killing in cold blood their unresisting prisoners of war. No man can say how powerful a topic to enflame popular feeling this might be, nor how readily, a government, which eagerly seizes all means of success without regard to their nature, might embrace it.
What effect this measure may produce upon our own people I dread to anticipate and will not attempt to delineate—for there are topics connected with it which in the hands of men, who will not hesitate to use every thing that may rouse the people against the administration, are calculated to awaken in a powerful degree the feelings & sympathy of the nation. But I more especially tremble to look at the consequences with the army who are more immediately exposed to the consequences of this step. These are considerations which are entitled to and will, I have no doubt, recieve that attention from the government to which they are so justly entitled.
Other doubts will also arise whether we view this question under the law of congress or under the general power which may be supposed incident to military command in time of war.
Under both those powers full and ample retaliation “according to the laws & usages of war among civilized nations” is required.3 Is there then any instance among civilized nations where a man standing in the predicament of these twenty three men taken in the act of invading his native country & who was subjected to trial condemnation & execution by the ordinary tribunals of the country under the operation of the municipal law—has been the ground or pretence of retaliation by the nation in whose service he thus entered the country in arms. I have never heard of any such case in conversation nor is there any in my knowledge or belief in the history of civilized nations—for the author of a treatise on Expatriation after having elaborately drawn to his aid the history of antient and modern Europe is unable to produce any such fact.4 Surely it cannot be seriously pretended—even if it was true which it is not—as I have sometimes heard in conversation that no instance is found of such a trial & execution among civilized nations that therefore it is to be considered that this retaliation would be supported by the laws & usages of war among civilized nations—for I suppose it would be sufficient even if this fact were true to reply that the law requires a retaliation supported by the laws & usages of war. There is no such usage and consequently no such law of war—which can only arise in such cases from usage—& consequently no law & usage of war to maintain this retaliation.
But so far is it from being true that there is no such trial & execution among civilized nations, that the author of the pamphlet just mentioned has produced two himself. I mean the cases of Patkul and a frenchman executed during the present war between France and Spain. In neither case was the execution palliated by any circumstances and yet no remonstrance even—much less retaliation was resorted to in either case. In the case of Patkul the emperor of Russia as near his person & sovereignty as it could be without actualy invoking both & in the prosecution of the war the imprudence of his adversary threw into his hands ample means of making the most complete & effectual retaliation—yet it was never thought of.5 The frenchman had gone to reside in Spain with his parents when he was an infant long before the war between France & Spain, had been reared & educated in Spain & continued there a fixed & permanent resident with I believe a wife married in Spain & children—after the death of his parents.6 In Patkuls case he was so far from having invaded his native country that he was not acting even in a military character and the frenchman was taken in resisting the invasion of his adopted country. And yet retaliation was neither resorted to nor threatened even in either case. These may & were justly perhaps be termed barbarous acts of authority—but not as justifying retaliation. But God forbid that we should be bound to copy all the barbarous acts of authority with which our enemy may be chargeable.
Besides these there is the case of Doctr Story in the English history who was tried condemned & executed for plotting with and instigating the Spanish government while a resident of the low countries to make war on England. He plead his having become a subject of Spain as a justification, but his plea was over ruled—judgment passed against him on nil dicit & he was executed.7 I pretend not to admire the Swedish, French & English governments in those cases. But surely I am not be told in the face of them that there is a law & usage of war supporting the retaliation contended for on the present occasion. Whatever of usage there is upon this question among civilized nations is surely directly adverse to it.
But under the strongest construction, which this law or incidental military power is capable of, it cannot be pretented that the United States are bound to retaliate whatever may be the relative situation of the two nations & however apparent it might be that retaliation would only be a useless sacrafice of the lives of its citizens. They are to be used to protect not destroy our citizens.
I will not pretend to suggest the manner in which it would be most expedient to wave this proceeding, either altogether, or untill circumstances may render it more likely to be effectual. You are much more competent to judge than I can pretend to be. But I beg leave to suggest, as a measure in any event desirable, to proceed to exchange prisoners as far as the British Government will consent to go even should it leave them in possession of hostages or persons against whom the United States would have no offset—for as they have so large a ballance of prisoners against us both in number and rank the relative positions of the parties will not be affected—and the United States will have the consolation of having saved a large number of her citizens, who from accident or possibly some degree of neglect were left in the hands of the enemy, untill they were placed in the condition of hostages & who might have been withdrawn from that predicament.
I think also that under existing circumstances a direct conference with Sir George Prevost by some person of competent capacity & sufficiently instructed would be absolutely requisite, to expedite any measures that may be deemed adviseable & to avoid the recurrence of those accidents & misunderstandings which have unfortunately so long delayed & defeated arrangements & which it required nothing but prompt & authoritative explanations to have avoided altogether.8
Allow me Sir to assure you that I have submitted these reflections from the most dispassionate, candid & friendly views and that I shall most cordially & vigorously cooperate in all measures for rendering the contest in which we are now engaged glorious to the country & effectual to its objects short of the extremity which I now labour to avoid. I have the honor to be with very high esteem Sir your obt Servt
Wm H Winder
RC and enclosure (DLC).
1. For Winder’s “peculiar situation,” see his letter to JM, 1 Feb. 1814, and n. 1.
2. Winder evidently meant to refer to JM’s 5 Jan. 1804 instructions to James Monroe (PJM-SS, description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (9 vols. to date; Charlottesville, Va., 1986–). description ends 6:282–306, especially p. 291).
3. Winder quoted from “An Act vesting in the President of the United States the power of retaliation,” 3 Mar. 1813, for which see PJM-PS, description begins Robert A. Rutland et al., eds., The Papers of James Madison: Presidential Series (7 vols. to date; Charlottesville, Va., 1984–). description ends 5:547 n. 1.
4. Winder referred to A Treatise on Expatriation, authored by Monroe’s son-in-law George Hay and published anonymously in Washington in January 1814 (Shaw and Shoemaker description begins R. R. Shaw and R. H. Shoemaker, comps., American Bibliography: A Preliminary Checklist for 1801–1819 (22 vols.; New York, 1958–66). description ends 31670).
5. Johann Reinhold von Patkul (1660–1707), a Livonian nobleman, went into exile in 1694 to escape a sentence of death for treason and lèse-majesté, having led opposition to policies implemented by the ruling Swedish government in his homeland. Thereafter, first in the service of Augustus the Strong of Poland and Saxony and then as Peter the Great’s minister to Augustus’s court, Patkul worked to build and maintain a military coalition against Sweden. After quarreling with Augustus and his Saxon officials, however, Patkul was imprisoned in Saxony and, as a condition of the 1706 Treaty of Altranstädt, handed over to Charles XII of Sweden, under whose authority he was executed. In 1709, Peter the Great’s army defeated Charles XII at Poltava, and the following year, Russia took possession of Livonia (Otto Stolberg-Wernigerode et al., eds., Neue Deutsche Biographie [24 vols. to date; Berlin, 1953–], 20:99–100; Yella Erdmann, Der livländische Staatsmann Johann Reinhold von Patkul: Ein abenteuerliches Leben zwischen Peter dem Groβen, August dem Starken und Karl XII. von Schweden [Berlin, 1970], 302–4). Hay’s account did not mention Patkul’s schemes against Sweden or the fact that he had expatriated himself to escape punishment; rather, it emphasized that his execution was unjustified because he was no longer a Swedish subject and had diplomatic status at the time of his arrest (Hay, Treatise on Expatriation [Shaw and Shoemaker description begins R. R. Shaw and R. H. Shoemaker, comps., American Bibliography: A Preliminary Checklist for 1801–1819 (22 vols.; New York, 1958–66). description ends 31670], 57–58).
6. Winder referred to Joseph Darguines, a native of France, who moved to Spain at age fourteen with his parents, became a lieutenant colonel in the Spanish army, and was taken prisoner by the French. On 14 June 1813, at the age of twenty-three, Darguines was condemned to death for treason. He was later pardoned, but lacking this information in the fall and winter of 1813, Federalist newspapers took the report of his case as an opportunity to accuse JM’s administration of inconsistency for failing to criticize France’s adherence to the doctrine of perpetual allegiance as severely as it did Great Britain’s (Biographie universelle, 8:54; Hudson, N.Y. Northern Whig, 14 Sept. 1813; Dedham Gazette, 17 Sept. 1813; Boston New-England Palladium, 21 Sept. 1813). On 27 Dec. 1813 the Philadelphia Poulson’s American Daily Advertiser made the point that Winder emphasized here, observing that “although the occurrence has been known to the Spanish authorities, near six months, we hear of no retaliation on their part.” Hay’s reference to Darguines’s case was confined to the remark that the doctrine of perpetual allegiance had “condemned to death the Frenchman who fought in defence of a country, in which he had lived from his infancy” (Hay, Treatise on Expatriation [Shaw and Shoemaker description begins R. R. Shaw and R. H. Shoemaker, comps., American Bibliography: A Preliminary Checklist for 1801–1819 (22 vols.; New York, 1958–66). description ends 31670], 88).
7. Nil dicit: default judgment (Black’s Law Dictionary [9th ed.], 1144). Winder’s summary was in accord with accounts of John Story’s 1571 trial to be found in James Dyer, Reports of Cases in the Reigns of Hen. VIII. Edw. VI. Q. Mary, and Q. Eliz. (3 vols.; London, 1794), 3:298b, 300b; and in Cobbett’s Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Present Time (34 vols.; London, 1809–28), 1:1087–96.
8. After ascertaining that British commissary general of prisoners Thomas Barclay, recently arrived in Washington, did not have the authority to make a “final arrangement” with the U.S. government for the exchange of hostages or other prisoners taken in Canada, JM decided to empower Winder to negotiate such an agreement with Sir George Prevost. Instructions for this task, dated 19 Mar. 1814, were sent to Winder in Quebec, where he had returned as required by the conditions of his parole (James Monroe to Winder, 1 and 19 Mar. 1814, DNA: RG 45, Subject File RE, box 591, Correspondence Relating to Exchange and Release of Prisoners American and British; Robinson, “Retaliation for the Treatment of Prisoners in the War of 1812,” American Historical Review 49 : 68–69).