From Thomas Jefferson
Wmsburg [Va.] 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 and in close Jail.1 This has occasioned a letter from General Philips of which the inclosed is a Copy.2 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.3 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 & 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, & 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.4 I have the honor to be with the most profound respect & Esteem Yr Excellency’s mo: obedient & mo: humble Servant
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.5 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 & Jersey.
1. For this enclosure, which detailed Virginia council deliberations on the actions of Henry Hamilton, who had been British lieutenant governor of Detroit, see Jefferson to GW, 19 June, n.7, and GW to Jefferson, 10 July, n.3.
3. The enclosed copy of the “Articles of Capitulation proposed by Lieut. Governor Hamilton to G. R. Clarke Colo. of the American Forces,” dated 24 Feb. 1779 at “Fort Sackville,” later known as Fort Vincennes, is in DLC:GW. Hamilton’s reasons for surrender read: “The unanimity of Officers & Men on its expediency[.] The Honourable Terms allowed[.] And lastly the Confidence in a generous Enemy.”
4. GW replied to Jefferson in a letter of 6–10 Aug., in which he discussed the complexity of Hamilton’s imprisonment case and suggested “that it may be proper to publish all the Cruelties he has committed or abetted—in a particular manner—and the evidence in support of the charges, that the World, holding his conduct in abhorrence, may feel and appro⟨ve⟩ the justice of his fate” (DLC:GW); see also GW to Jefferson, 13 Sept., (DLC:GW); Frederick Haldimand to GW, 29 Aug. (P.R.O.: 30/55, Carleton Papers); and Jefferson to GW, 1, 2, and 8 Oct. (all DLC: Jefferson Papers).
5. This letter from Col. Theodorick Bland to Jefferson has not been identified, but Phillips, then in Charlottesville, Va., wrote Bland on 3 July: “It is well known to you, sir, to General Washington, and to the American congress, that great numbers of the troops of convention have deserted since the treaty of Saratoga, notwithstanding every care and caution I have taken to prevent it; and it must certainly occur to you, sir, that it is to the interest of my character and honor to preserve the troops of convention entire, but I have been unable from various reasons to so do. Respecting the deserters themselves, I cannot possibly know any thing concerning them after they have left the troops of convention; from that instant they are no longer considered upon our muster-rolls; nor is it a matter which concerns me, or any regiment of the troops of convention, whether they serve in General Washington’s army or with Sir Henry Clinton … I have given you upon the affair all the explanation in my power, and have only to add, first, that I shall consider, as I have ever done, deserters from the troops of convention as no longer of any consideration, or worthy to be esteemed a part of those troops; for I must conceive, that in their desertion, they abandon the cause of Great Britain for that of America. In the second place, I look upon deserters to be miscreants, who will embrace any cause, and change from party to party, from fear of punishment or hope of reward” (Campbell, Bland Papers, description begins Charles Campbell, ed. The Bland Papers: Being a Selection from the Manuscripts of Colonel Theodorick Bland, Jr., of Prince George County, Virginia. 2 vols. Petersburg, Va., 1840-43. description ends 1:141–42). Another letter from Phillips to Bland on this subject, dated 11 Aug., in part reads: “I request, sir, to know how I may be allowed to send my sentiments upon this matter to General Washington, and the American congress. I cannot possibly conceive that body, or the gentlemen in public character, to whom I mean to address myself, can propose to use undeserved severities with the troops of convention, or to stigmatize the characters of officers which have been invariably irreproachable” (Campbell, Bland Papers, description begins Charles Campbell, ed. The Bland Papers: Being a Selection from the Manuscripts of Colonel Theodorick Bland, Jr., of Prince George County, Virginia. 2 vols. Petersburg, Va., 1840-43. description ends 2:19–20).
The Board of War, responding to information from Bland “that considerable desertions have taken place among the troops of the convention, many of whom leave the post with an intention to rejoin the enemy,” issued a proclamation on 26 July. It directed “all officers in the service of the United States … to be vigilant in detecting and apprehending deserters from those troops. The civil officers in the respective states where such deserters may be found, are earnestly requested to give their assistance in securing them; and the well affected inhabitants will do essential service to their country, by taking into custody all British deserters travelling from the southward, and delivering them to the next Commissary of prisoners, or committing them to the nearest jail. A practice of administering the state oath of allegiance to deserters from the convention troops, and then supplying them with passes, has heretofore been too prevalent, and productive of very pernicious consequences, by affording them a safe and easy method of escaping the place in the possession of the British army. Those magistrates and other officers of justice, who have been induced to receive such oaths, and grant passes in consequence thereof, are earnestly called upon to discontinue a practice so injurious to the states: And as those passes have been obtained merely with a design to facilitate their escape to the enemy, the soldiers possessed of them are notwithstanding to be secured, and treated as deserters. They are generally clad in short coarse linen coats or coatees, and linen overalls; and carry their regimental coats in knapsacks” (McIlwaine, Letters of the Governors, description begins H. R. McIlwaine, ed. Official Letters of the Governors of the State of Virginia. 3 vols. Richmond, 1926–29. description ends 2:22). For deserters from the Convention Army while at Charlottesville, see GW to Bland, 27 July; see also Sampson, British Convention Prisoners, 121–34.