Letters of Delegates to Congress: Volume 8
John Witherspoon's Speech in Congress
Mr President, [January 8, 1778] (1) I am sensible, as every other gentleman in this house seems to be, of the great importance of the present question. It is of much moment, as to private persons, so to every incorporated society, to preserve its faith and honour in solemn contracts: and it is especially so to us, as representing the United States of America, associated so lately, and just beginning to appear upon the public stage. I hope, therefore, we shall detest the thoughts of embracing any measure which shall but appear to be mean, captious, or insidious, whatever advantage may seem to arise from it. On the other hand, as the interest of this continent is committed to our care, it is our duty, and it will be expected of us, that we give the utmost attention that the public suffer no injury by deception, or abuse and insult, on the part of our enemies.
On the first of these principles, it is clearly my opinion, that we ought, agreeably to the spirit of the first resolution reported,(2) to find, that the convention is not so broken, on the part of General Burgoyne, as to entitle us to refuse compliance with it on ours, and detain him and his army as prisoners of war. I admit that there is something very suspicious in the circumstance of the colours, when compared with his letter in the London Gazette, which makes mention of the British colours being seen flying upon the fort.(3) I agree, at the same time, that the pretence of the cartouch boxes not being mentioned in the convention is plainly an evasion. They ought, in fair construction, to be comprehended under more expressions of that capitulation than one-arms, ammunition, war-like stores. They were so understood at the capitulation of St. John's. In this present instance many of them were delivered up, which certainly ought to have been the case with all or none. And once more, I admit that the detention of the bayonets in the instances in which it was done, was undeniably unjust.
As to the first of these particulars I am unwilling to distrust the honour of a gentleman solemnly given; and therefore as General Burgoyne has given his honour to General Gates, that the colours were left in Canada, I suppose it is substantially true, whatever small exception there might be to it. The colours seen flying at Tyconderoga, were perhaps old colours occasionally found there, or perhaps taken from some of the vessels lying at the place, and left there when the army proceeded farther up the country. This is the rather probable, that if the regiments in general had had colours, they must have been seen very frequently by our army in the battles, or upon the march.
As to the other circumstances, they are so mean and little in their nature, that I suppose them to have arisen from the indiscretion of individuals, quite unknown to the commander in chief, or even to the officers in general.
We ought also to consider that it was so unexpected, and must have been so humiliating a thing, for a whole British army to surrender their arms, and deliver themselves up prisoners to those of whom they had been accustomed to speak with such contempt and disdain -that it is not to be wondered at, if the common soldiers did some things out of spite and ill humour, not to be justified. To all these considerations, I will only add, that though the want of the colours deprives us of some ensigns of triumph which it would have been very grateful to the different states to have distributed among them, and to have preserved as monuments of our victory, the other things are so trifling and unessential, that it would probably be considered as taking an undue advantage, if we should retain the whole army here on that account. I would therefore, Sir, have it clearly asserted, that though we are not insensible of those irregularities, and they may contribute to make us attentive to what shall hereafter pass before the embarkation, we do not consider them as such breaches of the convention, as will authorize us in justice to declare it void.
On the other hand, Sir, it is our indispensable duty to use the greatest vigilance, and to act with the greatest firmness, in seeing that justice be done to the American States. Not only caution, but what I may call jealousy and suspicion, is neither unreasonable nor indecent in such a case. This will be justified by the knowledge of mankind. History affords us many examples of evasive and artful conduct in some of the greatest men and most respectable nations, when hard pressed by their necessities, or when a great advantage was in view. The behaviour of the Romans when their army was taken at the Caudine Forks may be produced as one. The conduct of the Samnites was not overwise; but that of the Romans was dishonourable to the last degree, though there are civilians who defend it. Their consul, after his army had passed through the yoke, a symbol at that time of the utmost infamy, made a peace with the Samnites. The senate refused to ratify it; but kept up a shew of regard to the faith plighted, by delivering up the consul to the Samnites, to be used as they thought proper. That people answered, as was easily suggested by plain common sense, that it was no reparation at all to them to torment or put one man to death; but that if they disavowed the treaty, they ought to send back the army to the same spot of ground in which they had been surrounded. No such thing, however, was done. But the Romans, notwithstanding, immediately broke the league; and with the same army which had been let go, or a great part of it, brought the unhappy Samnites to destruction. Such instances may be brought from modern as well as ancient times. It is even the opinion of many persons of the best judgment, that the convention entered into by the late duke of Cumberland, was by no means strictly observed by the court of London.(4)
When I consider this, Sir, I confess I look upon the expression in General Burgoyne's letter to General Gates, of November 14, as of the most alarming nature. For no other or better reason, even so much as pretended, than his quarters were not so commodious as he expected, he declares the public faith is broke, and we are the immediate sufferers. In this he expressly declares and subscribes his opinion, that the convention is broken on our part; and in the last expression, we are the immediate sufferers, every person must perceive a menacing intimation of who shall be the sufferers when he shall have it in his power.
Being sufficiently settled as to the principle on which I shall found my opinion, it is unnecessary for me to give an account of the law of nature and nations, or to heap up citations from the numerous writers on that subject. But that what I shall say may have the greater force, I beg it may be observed, that the law of nature and nations is nothing else but the law of general reason, or those obligations of duty from reason and conscience, on one individual to another, antecedent to any particular law derived from the social compact, or even actual consent. On this account, it is called the law of nature; and because there are very rarely to be found any parties in such a free state with regard to each other, except independent nations, therefore it is also called the law of nations. One nation to another is just as man to man in a state of nature. Keeping this in view, a person of integrity will pass as sound a judgment on subjects of this kind, by consulting his own heart, as by turning over books and systems. The chief use of books and systems is, to apply the principle to particular cases and suppositions differently classed, and to point out the practice of nations in several minute and special particulars, which unless ascertained by practice, would be very uncertain and ambiguous.
But, Sir, I must beg your attention, and that of the house, to the nature of the case before us-at least as I think it ought to be stated. I am afraid that some members may be misled, by considering this declaration of General Burgoyne as an irregularity of the same species, if I may speak so, with the other indiscretions or even frauds, if you please to call them so, of withholding the cartouch boxes, or hiding or stealing the bayonets. The question is not, whether this or the other thing done by the army is a breach of the convention. I have for my part given up all these particulars, and declared my willingness to ratify the convention, after I have heard them and believe them to be true. But we have here the declared opinion of one of the parties, that the public faith is broken by the other. Now, the simplest man in the world knows, that a mutual onerous contract is always conditional; and that if the condition fails on one side, whether from necessity or fraud, the other is free. Therefore we have reason to conclude, that if Mr Burgoyne is of opinion that the convention is broken on our part, he will not hold to it on his. He would act the part of a fool if he did. It is of no consequence to say his opinion is ill-founded or unjust, as it manifestly is in the present case; for whether it is just or unjust, if it is really his opinion (and we should wrong his sincerity to doubt it) the consequences are the same with respect to us. Men do often, perhaps generally, adhere with greater obstinacy to opinions that are ill, than those that are well founded, and avenge imaginary or trifling injuries with greater violence than those that are real and great. Nay, we may draw an argument for our danger from the very injustice of his complaint. If he has conceived the convention to be broken on so frivolous a pretense as that his lodging is not quite commodious, after the just caution inserted by General Gates in the preliminary articles, what have we to expect from him as soon as he shall recover his liberty, and the power of doing mischief? It shews a disposition to find fault, and an impatience under his present confinement, the future effects of which we have the greatest reason to dread.
The more I consider this matter, Sir, the more it strikes me with its force. General Gates says upon the subject of accommodation, granted as far as circumstances will admit. Was not this proper and necessary? It was very natural to suppose that General Burgoyne, accustomed to the splendor of the British court, and possessed with ideas of his own importance, would be but ill pleased with the best accommodations that could be obtained for him, and his numerous followers, in one of the frugal states of New England. It was also in the neighbourhood of a place not in the least expecting the honour of such guests, which had been long the seat of war which had been exhausted by our army, and plundered by their's. One would have thought that the recollection of the ruin of Charlestown, the burning of which, if I mistake not, in a letter of his from Boston to England, he calls a glorious light, might have prevented his complaints, even though he had less elbow room than he wished for. But as circumstances stand, by what conduct shall we be able to satisfy him? When will pretences ever be wanting to one seeking to prove the convention broken, when it is his inclination or his interest to do so?
It has been said, Sir, that we ought not to take this declaration of his in so serious a manner: that it was written rashly, and in the heat of passion; and that he did not mean that we should dread such consequences from it. All this I believe to be strictly true. It probably fell from him in passion-and very unadvisedly. But is he the first person that has rashly betrayed his own mischievous designs? Or is this a reason for our not availing ourselves of the happy discovery? His folly in this instance is our good fortune. He is a man, Sir, whom I never saw, though I have been more than once in England; but if I should say I did not know him, after having read his lofty and sonorous proclamation,(5) and some other productions, I should say what was not true. He is evidently a man showy, vain, impetuous, and rash. It is reported of General Gates, from whom I never heard that any other words of boasting or ostentation fell, that he said he knew Burgoyne, and that he could build a wall for him to run his head against I do not by any means approve of boasting in general. I think a man should not boast of what he has done, much less of what he only means to do; yet I cannot help saying, that this was a soft accurate prediction, which, with the event that followed it, plainly points out to us the character of General Burgoyne. Do you think that such a man would not take the advantage of this pretended breach of the convention on our part; and endeavour to wipe off the reproach of his late ignominious surrender by some signal or desperate undertaking? (6)
MS not found; reprinted from John Witherspoon, The Works of John Witherspoon . . ., 9 vols. (Edinburgh: J. Ogle, 1815), 9:108-16.
1 Although Burnett tentatively dated this speech January 2, 1778, there is reason to believe it was actually intended for delivery on January 8. Witherspoon's mention in the second paragraph of "the first resolution reported" appears to be a reference to the first resolution of the revised committee of the whole report on the Saratoga Convention that was submitted to and approved by Congress on January 8, rather than the first resolution of the report on this issue that was offered to Congress on December 26 by the committee on the convention and then considered in committee of the whole on December 26-27, January 2-3. The first resolve of the December report dealt with General Burgoyne's ill-fated remark in a November 14 letter to General Gates that "the public faith is broke," which Congress did use to justify suspending the convention, whereas the first article of the January report concerned British failure to surrender to Gates all their "cartouch boxes and several other articles of military accoutrement," which was not considered in itself sufficient justification for suspension. Witherspoon was a member of the committee that wrote the original report submitted to Congress on December 26 and the revised version approved by Congress on January 8. Therefore it is probable that he prepared this speech for delivery on the 8th in order to remove any lingering doubts among the delegates about the wisdom and justice of delaying the return of Burgoyne's army to England until after the British court had ratified the convention. See JCC, 9:1034, 1054 55, 1058-64, 10:13-14, 16-17, 29-35; Burnett, Letters, 3:5n.2; and Henry Laurens to William Heath, December 27, 1777, note 1.
2 See JCC, 10:34-35.
3 See JCC, 9:1060.
4 A reference to the 1757 Convention of Klosterzeven, on which see Richard Henry Lee to George Washington, November 20, 1777, note 5.
5 A reference to a notoriously boastful proclamation issued by Burgoyne on June 20, 1777, that long riled many Americans. See Henry Laurens to John Lewis Gervais, August 17, 1777, note 5.
6 As part of his work on the committee appointed December 18 to consider alleged British infractions of the Saratoga Convention, Witherspoon prepared the following draft report. Whether it was submitted to Congress has not been discovered.
"The Committee to which were referred the Convention of Saratoga & the Letters of General Gates, General Heath Sc General Burgoyne upon that Subject beg Leave to report the following State of Facts
"That some of the Belts & car[t]ouch Boxes of the Soldiers were not delivered up with the Arms.
"That the Word Accoutrements was not added to that of Arms in the Convention through oversight.
"That the Case was the very Same at the Capitulation of St. Johns and yet the whole were delivered up as comprehended under the Word Arms.
"That many of the Bayonets were withheld though in general delivered up.
"That many of the Muskets were twisted or damaged and the whole are now returned unfit for use.
"That in the Opinion of General Gates this last was in a good Measure occasioned by want of proper Covering for them and other Accidents,
"That no Standards or Colours were delivered up.
"That General Burgoyne declared on his Honour that the Colours were left in Canada.
"That there is Mention made in the Account published in the London Gazette of the taking Possession of Ticonderoga of the British Colours being seen flying upon the fort.
"That General Burgoyne in his Letter to General Gates of the 14 of Novr says expressly that the public Faith is broke on Account of his not having so commodious quarters as he expected.
"That General Gates in the Articles preliminary to the Convention did upon the Subject of Accommodation & other similar Circumstances take a Latitude from the Nature of the thing Saying as far as Circumstances will admit.
"That General Burgoyne has refused to give the Names and Description of his Soldiers & refers to General Carltons Dismission of our Soldiers under Parole not to serve during the War.
"That the Committee on Enquiry find that General Carlton made all our Prisoners sign their Names to a Paper containing Columns describing the Province, County & Town from which each of them came.
"Resolved that the whole Soldiers under General Burgoyne shall before they embark be obliged to sign a Parole with a Description of their Place of Abode exactly in the same form as that required by General Carlton." Witherspoon Papers, DLC.
For a longer "State of Facts" about the convention that definitely was known to a number of delegates outside the circle of this committee, see James Lovell to John Adams, January 21, 1778, enclosure.
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