Williamsburg,
July 17, 1779.
Sir,
I some time ago enclosed to you a printed copy of an order of Council, by which Governor Hamilton was to be confined in irons, in close jail, which has occasioned a letter from General Phillips, of which the enclosed is a copy. The General seems to think that a prisoner on capitulation cannot be put in close confinement, though his capitulation should 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 enclose), 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 waving 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 those contracts which take place between nation and nation, at war, and would be the last on earth to 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 Phillips seems to suppose, though 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, though there be no article to that effect in the capitulation, justice shall most assuredly be done him. The importance of this point, in a public view, and my own anxiety under a charge of violation of national faith by the Executive of this Commonwealth, will, I hope, apologize for my adding this to the many troubles with which I know you to be burdened. I have the honor to be, with the most profound respect, your Excellency’s most obedient
and most humble servant,
Th: Jefferson.
P. S. I have just received a letter from Colonel Bland, containing information of numerous desertions from the Convention troops, not less than four hundred 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 provided 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 give this information 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 enclosing the opinion of the board of war in the case of Allison and Lee, has come safe to hand, after a long passage. It shall be answered by next post. T. J.