by Brian Mumford, Prior President
Vengeance and retribution require a long time; it is the rule……Charles Dickens
The “law of war” is a set of guidelines which evolved over the centuries intended to regulate warring parties to maintain humanity in matters including conducting surrenders and treatment of prisoners of war. General George Washinton was an ardent follower of the European law of war. Upon taking command of the Continental Army in June 1775, he issued rules of conduct for the troops attacking Canada, including “Rule 4: Do Not Abuse Prisoners” (Raphael). He wrote to Major General Benedict Arnold that if a soldier violated this rule, he was to be punished.
Washington expected the British to abide by the law of war during the Revolutionary War; however, he was mistaken. In August 1775. King George III declared the American revolutionary military to be traitors who were to be treated as criminals and not military. Parliament ruled the revolution force was not to be treated according to the law of war (Jones, Introduction).
Ethan Allen: On May 10, 1775, Ethan Allen with the Green Mountain Boys achieved the first American victory in the Revolutionary War by capturing Fort Ticonderoga together with its vast trove of artillery. Allen sent the captured British garrison to Connecticut where they were treated according to the law of war.
In September, while attacking Montreal, Allen was captured by the British. He was brought before British General Richard Prescott who, rather than treating him according to the law of war, declared him a traitor to be hanged. Prescott sent Allen to Tyburn, the principal location of public executions in London.
Aboard ship for forty days, bound by hand irons and thirty-pound leg irons, Allen and his troops endured appalling treatment in filthy, disease-ridden conditions with inadequate water and food. Ashore in England, Allen remained a prisoner receiving harsh treatment while awaiting the decision of Lord George Germain, King George’s minister, as to whether he was to be hanged (Randall, 26-35).
In December 1775, Thomas Jefferson wrote “A Declaration on the British Treatment of Ethen Allen” detailing how the British treatment of Allen was a violation of the law of war (Jefferson). Washington, in an effort to alleviate Allen’s suffering, wrote General William Howe, Commander of British forces in the Colonies, that Gen. Prescott had been taken prisoner by American forces at Montreal. He threatened “that whatever Treatment Colonel Allen receives—whatever fate he undergoes—such exactly shall be the treatment & Fate of Brigadier Prescot [sic], now in our hands.” (Jones, Ch 2,“The Novelty”).
Washington’s threat to match the British’s unlawful prisoner treatment was permissible under the law of war. Acts of proportional retaliation in order to compel an enemy to observe the law of war were sanctioned. Such proportional retaliation was permissible only if done for a valid military purpose and was equivalent in nature to the enemy’s violation. However, retaliation of excessive force committed for vengeance was a violation. Washington referred to this as the “law of retaliation.”
Germain aware that Washington’s threat of retaliation put in jeopardy his plan to hang Allen, as well as the safety of the British prisoners being held by Washington, ordered Allen returned to America after having been imprisoned by the British for more than two years.
Boston: In January 1776 during the Siege of Boston, Washington accused Howe of violating the law of war by his harsh treatment of prisoners captured at Bunker Hill. Washington threatened to retaliate with proportional treatment of British prisoners. Howe in his condescending response ignored Washington’s reference to “the law of war” and responded that under “the laws of the land” Washington and his army should be hanged as traitors.
Three months later, using the artillery which Allen had captured at Ticonderoga, Washington forced Howe and his 11,000
troops to abandon Boston and sail from Boston Harbor, ending the siege. This was the first victory of the newly formed Continental Army.
New York Campaign: In July 1776, Howe with 400 warships and 32,000 troops arrived in New York Harbor with plans to capture New York City. In August, he defeated the Americans at Long Island and by November his troops had taken a number of forts as they marched to northern Manhattan to capture Fort Washinton and drive Washington’s army entirely from New York into New Jersey.
The British treatment of prisoners during the New York Campaign demonstrate the extent to which they had abandoned the law of war. At Fort Washington, when the American troops laid down their arms in surrender, the British unmercifully beat them with the butt-end of muskets, stripped them of their personal belongings, and marched them in freezing weather to prisons in New York City. By contrast, during the same month, when Washington was victorious at Trenton, he ordered his troops not to harm or plunder the 900 British prisoners as they were marched to prisons in Lancaster, Pennsylvania, to be humanely treated.
During the New York Campaign, the British crammed thousands of American prisoners into disease-infested prisons set up in abandoned churches, sugar houses, and ships. The conditions were deplorable with insufficient food, water, and sanitary provisions. Prisoners dyed of typhus, dysentery, small pox, or scurvy. Of the 100 men from Danbury captured at Ft Washington, only two survived prison in New York. Half of the 1,ooo prisoners captured at Long Island and two-thirds of the 2,800 captured at Fort Washington died of disease and starvation within months (Burrows, 64).
During the winter of 1776-77, to reduce the over-crowding of the New York prisons, the British released more than 1,800 sick and dying men, most of whom died from prison starvation and ill-treatment as they made their way home. Those few who survived became carriers and spread diseases in their communities.
Public Opinion: The revolutionary press, which played a crucial role in shaping public opinion, provided a continual barrage of articles detailing British abuses of American prisoners. As the accounts and details of the atrocities mounted, so too did the demands of the press for Congress to seek vengeance. Reading these reports, the revolutionary citizens became enraged and also were calling on Congress for revenge.
Committees of Correspondence, established throughout the states, provided public updates describing the British mistreatment of American prisoners. During January 1777, they reported to Congress that upwards of 11,000 American captives had already perished in New York prisons for lack of food and sanitary care. The Committees called upon Congress to engage in revengeful action against the British.
Congress passed a resolution charging the British with appalling “barbarity” and compared it with “American humanity.” However, Congress continued to comply with the law of war with British prisoners and refused to retaliate with acts of excessive force committed for vengeance.
Surrender: On October 17, 1777, General John Burgoyne ended his Campaign to reach Albany by surrendering nearly 6,000 troops to General Horatio Gates at Saratoga (now Schuylerville). Before the terms of surrender had been agreed upon, Gates prematurely announced to the Albany Committee of Correspondence that the British had surrendered. Rumor of the surrender spread and left Washington and the members of Congress elated. In the only known letter in which Washington mentioned “Heaven” during the war, he called this “the happy moment which Heaven has pointed out for the firm establishment of American Liberty” (Fine Books. Washington letter). However, two weeks later when the written agreement reached Washington and Congress in Pennsylvania, their elation turned to consternation.
Under the terms of the agreement, the British were not prisoners of war but rather were parolees. They were to be marched to Boston where they were to board transports to bring them back to Egland, pledging not to return to fight in the current war. The officers were to maintained their swords and the troops were to keep their private belongings which were not to be searched. Gates also agreed to call the agreement a “convention agreement” rather than a “surrender agreement.” This was a significant concession since in contemporary European warfare a convention was a negotiated agreement for merely a secession of hostilities and not a formal surrender.
Although disappointed with the terms of the Convention, Washington realized that under the law of war a negotiated and signed treaty was inviolate and must be ratified by America. Gates also argued that under the law of war the Convention must be ratified since there had been no breach of the agreement by the British. However, neither Washington nor Gates had jurisdiction over the ratification of treaties. The members of Congress, who were elected by the people, were solely responsible for decisions regarding ratification.
The revolutionary public was enraged that the British army was to be released. The newspapers wrote that having a large British army in custody for the first time presented the long-awaited opportunity for vengeance. The New York Council of Safety criticized the Convention and wrote it was time for brave people to revolt with retaliation. The Council also petitioned the Congress to keep Burgoyne’s army as “Hostages for the future good Behavior of the Enemy.” (Jones, Ch 4,“Unwelcome”).
Members of Congress were aware of the law of war, but they were also aware of the public’s critical reaction to the terms of the Convention. Under America’s new republican form of government, the elected delegates to Congress could ill afford to ignore the will of the voting public who were seeking revenge.
Congress: During November, Congress met to consider ratification of the Convention. The first issue was whether under the law of war the history of the British mistreatment of prisoners was grounds to refuse ratification. After discussion, the delegates agreed that the mistreatment was not sufficient grounds since there was no history of Burgoyne’s having mistreated prisoners.
A committee was then appointed to investigate the conduct of Burgoyne and his troops to search for any possible violation of the Convention agreement. At a subsequent meeting, the Committee reported that they had not found any breach of the Convention which would warrant Congress’ reciprocal breach by refusing ratification. Congress adjourned without reaching a decision on ratification.
Congress continued to search for reasons to justify refusing ratification. They reviewed a letter from Burgoyne accusing Congress of breaching the Convention by failing “to provide adequate quarters [for the troops].” He added that “by this breach the public faith [in America] is broke” (Jones, Ch4, “Unwelcome”). Since Congress could not dispute that they had failed to provide adequate quarters, some delegates focused only on the “public trust” comment and declared Burgoyne’s language presented sufficient grounds to refuse ratification.
The delegates argued that since Burgoyne stated he no longer had faith in America because of its breach, he probably intended to repudiate the Convention once it was ratified, which would free all the troops. Other delegates argued that it would be a gross violation of the law of war to refuse ratification based solely upon a supposition of what Burgoyne might intend to do. No decision regarding ratification was reached.
During a later meeting, the delegates discussed putting aside the law of war and basing their decision merely upon their judgment of Burgoyne’s character. Some delegates reasoned that since Burgoyne was “showy, vain, impetuous, rash, and was not to be trusted,” he probably would repudiate the Convention if it were ratified. The nature of this speculative discussion showed how far Congress had drifted from the dictates of the law of war while in search of a way to answer the public’s call for vengeance.
After several more days discussing ways to impede Burgoyne’s presumed intent to repudiate the Convention, a proposal was made to require the King’s ministers to ratify the Convention which would supersede any attempt to repudiate by Burgoyne. To provide the time necessary to implement the plan, Congress turned to Article II of the Convention.
II. A free passage be granted to the army to Great Britain, … and the port of Boston is assigned for the entry of transports to receive the troops, whenever General Howe shall so order (Yale Law).
On January 8, 1778, without any evidence of wrongdoing by Burgoyne or the pretense of proportional retaliation, Congress (by a vote of 14 to 6) agreed to suspend the embarkation of any troops on any ship under Article II until
Congress received “a distinct and explicit ratification of the convention … by the court of Great Britain” ( Jones, Ch 4, “Congressional…”)
Congress’ requiring the King’s ratification of the Convention agreement clearly was a disingenuous pretext. Congress certainly was aware that the King would not ratify the Convention since to do so the King would be recognizing the United Stated as a sovereign country.
In essence, without a valid legal reason, Congress nullified the Convention by indefinitely staying performance. This was not proportional retaliation under the law of war. This was Congress defying the law of war by openly committing an act of excessive retribution as revenge for the past treatment of American prisoners of war. Congress now had announced that the law of war would no longer prevail in Congress’ management of the war.
Vengeance: As Congress anticipated, King George never ratified the Convention. Congress’ act of vengeance had nullified the Convention and converted 5,900 parolees into prisoners of war who would be confined for five and a half years until the end of the war. During this entire time, Congress refused to consider any exchange or pardon for the Convention prisoners. The only way out for them was death or escape.
During winter of 1779, a year after refusing to ratify the Convention, Congress ordered the prisoners at Cambridge to embark on a 700-mile forced march to Charlottesville, Virginia. Existing on starvation rations and exposed to the extreme winter weather, many died on the march. During the following years Congress ordered the prisoners on forced marches to Maryland and then to Pennsylvania. At all locations the troops dealt with miserable living conditions. By the end of the war in 1783 the Convention army had lost eighty-five percent of their number to disease, starvation, exhaustion, and escape.
Turning Point: At times, government’s punitive acts of retaliation for vengeance may have satisfied the public’s desire to see wrongdoers punished; however, they rarely achieved significant political or military goals. Yet, Congress’ refusal to ratify the Convention in response to the public call for revenge achieved both political and military goals.
France, learning of the victory at Saratoga and Congress’ refusal to ratify the Convention, became convinced of the American’s full commitment to independence. Having secretly supported the colonies since 1776, France opened political negotiations for a formal alliance with the United States. The resulting Treaty of Alliance (1778) committed France’s military and financial support which assured the military victory of the American Revolutionary War.
After the War: George Washington, as President of the new nation, insisted that America’s first treaty with a foreign nation, as well as subsequent treaties, included detailed humanitarian provisions consistent with the law of war, including prohibiting the use of prison ships and restraining irons, as well as guaranteeing swift exchange of prisoners. His goal was that the United States never again abuse its POW’s.
Works Consulted
Allen, Ethan. Allen’s Captivity, Being a Narrative of Colonel Ethan Allen, Containing his Voyages, Travels, &, Interspersed with Political Observations. Google Books https://www.google.com/books/edition/Narrative_of_Ethan_Allen/- ONFRoPpDtYC?hl=en&gbpv=1&kptab=getbook.
Burrows, Edwin G. Forgotten Patriots: The Untold Story of American Prisoners During the Revolutionary War. Basic Books, 2010.
Jones, T. Cole. Captives of Liberty; Prisoners of War and the Politics of Vengeance in the American Revolution. University of Pennsylvania Press, 2020.
Fine Books & Collections. “George Washington’s Original Letter on God, Heaven & War” https://www.finebooksmagazine.com/fine-books- news/george-washingtons-original-letter-god-heaven-war-sale-first-time.
Krebs, Daniel. A Generous and Merciful Enemy: Life for German Prisoners of War during the American Revolution. University of Oklahoma Press, 2013.
Raphael, Ray. “Washington’s Five Rules for Honorable War.” HistoryNet.org. https://www.historynet.com/washingtons-5-rules-for- honorable-war/.
Randall, Willard Sterne. Ethan Allen: His Life and Times. W. W. Norton & Company, 2011.
Thomas Jefferson “Draft of a Declaration on the British Treatment of Ethan Allen, 2 January, 1776, Founders Online. https://newenglandhistoricalsociety.com/how-the-British-tortured-Ethan-Allen.
Yale Law School. Articles of Convention Between Lieutenant-General Burgoyne and Major General Gates; October 16, 1777” https://avalon.law.yale.edu/18th_century/burgoyne_gates.asp.
