with it on ours, and detain him and his army as prisoners of war. I admit that there is fomething very fufpicious in the circumftance of the colours, when compared with his letter in the London Gazette, which makes mention of the British colours being feen flying upon the fort. I agree, at the fame time, that the pretence of the cartouch. boxes not being mentioned in the convention, is plainly an evasion. They ought, in fair conftruction, to be comprehended under more expreffions of that capitulation than one-arms-ammunition-warlike flores. They were fo understood at the capitulation of St. John's. In this present inftance many of them were delivered up, which certainly ought to have been the cafe with all or none. And once more, I admit that the detention of the bayonets in the inftances in which it was done, was undeniably unjust.

As to the first of these particulars, I am unwilling to distrust the honor of a gentleman folemnly given; and therefore, as general Burgoyne has given his honor to general Gates, that the colors were left in Canada, I fuppofe it is fubftantially true, whatever small exception there might be to it. The colors feen flying at Ticonderoga, were perhaps old colors occafionally found there, or perhaps taken from fome of the veffels lying at that place, and left there when the army proceeded further up the country." This is the rather probable, that if the regiments in general had had colors, they must have been feen very frequently by our army in the battles, or upon the march.

As to the other circumftances, they are fo mean and little in their nature, that I fuppofe them to have arisen from the indifcretion of individuals, quite unknown to the commander in chief, or even to the officers in general.

We ought alfo to confider that it was fo unexpected, and must have been fo humiliating a thing, for a whole British army to furrender their arms, and deliver themfelves up prifoners to thofe of whom they had been accuftomed to speak with fuch contempt and difdain—that it is not to be wondered at, if the common foldiers did fome things out of fpite and ill humor, not to be juftified. To

all these confiderations, I will only add, that though the want of the colors deprives us of fome enfigns of triumph which it would have been very grateful to the different ftates to have diftributed among them, and to have preferved as monuments of our victory, the other things are fo trifling and uneffential, that it would probably be confidered as taking an undue advantage, if we fhould retain the whole army here on that account. Iwould therefore, sir, have it clearly afferted, that though we are not infenfible of those irregularities, and they may contribute to make us attentive to what shall hereafter pass before the embarkation, we do not confider them as fuch breaches of the convention, as will authorize us in justice to declare it void.

On the other hand, fir, it is our indifpenfible duty to ufe the greateft vigilance, and to act with the greatest firmness, in feeing that juftice be done to the American States. Not only caution, but what I may call jealousy and fufpicion, is neither unreasonable nor indecent in fuch a cafe. This will be juftified by the knowledge of mankind. Hiftory affords us many examples of evafive and artful conduct in fome of the greateft men and moft refpectable nations, when hard preffed by their neceffities, or when a great advantage was in view. The behavior of the Romans when their army was taken at the Caudine Forks may be produced as one. The conduct of the Samnites was not over-wife; but that of the Romans was difhonorable to the last degree, though there are civilians who defend it. Their conful, after his army had paffed through the yoke, a fymbol at that time of the utmoft infamy, made a peace with the Samnites. The fenate refused to ratify it; but kept up a fhew of regard to the faith plighted, by delivering up the conful to the Samnites, to be used as they thought proper. That people anfwered, as was easily fuggefted 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 difavowed the treaty, they ought to fend back the army to the fame fpot of ground in which they had been furrounded. No fuch thing, however, was done. But the Romans, notwith

ftanding, immediately broke the league; and with the fame army which had been let go, or a great part of it, brought the unhappy Samnites to deftruction.-Such inflances may be brought from modern as well as ancient times. It is even the opinion of many persons of the beft judgment, that the convention entered into by the late duke of Cumberland, was by no means ftrictly obferved by the court of London.

When I confider this, fir, I confefs I look upon the expreffion in general Burgoyne's letter to general Gates, of November 14, as of the moft alarming nature. For no other or better reafon, even fo much as pretended, than that his quarters were not focommodious as he expected, he declares the public faith is broke, and we are the immediate sufferers. In this he exprefsly declares and fubfcribes his opinion, that the convention is broken on our part; and in the laft expreffion, we are the immediate fufferers, every perfon must perceive a menacing intimation of who fhall be the fufferers when he fhall have it in his power. r Being fufficiently fettled as to the principle on which I fhall found my opinion, it is unneceffary for me to give an account of the law of nature and nations, or to heap up citations from the numerous writers on that fubject. But that what I fhall fay may have the greater force, I beg it may be obferved, that the law of nature and nations is nothing elfe but the law of general reafon, or thofe obligations of duty from reafon and confcience, on one individual to another, antecedent to any particular law derived from the focial compact, or even actual confent. On this account, it is called the law of nature; and because there are very rarely to be found any parties in fuch a free ftate with regard to each other, except independ ent nations, therefore it is alfo called the law of nations. One nation to another is juft as man to man in a state of nature. Keeping this in view, a perfon of integrity will pafs as found a judgment on fubjects of this kind, by confulting his own heart, as by turning over books and fyftems. The chief ufe of books and fyftems, is to apply the principle to particular cafes and fuppofitions differently claffed, and to point out the practice of nations in

feveral minute and fpecial particulars, which unless afcertained by practice, would be very uncertain and ambiguous.

But, fir, I must beg your attention, and that of the houfe, to the nature of the cafe before us-at least as I think it ought to be stated. I am afraid that fome members may be mifled, by confidering this declaration of general Burgoyne as an irregularity of the fame fpecies, if I may speak fo, with the other indifcretions or even frauds, if you please to call them fo, of withholding the cartouch boxes, or hiding or ftealing the bayonets. The queftion 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 willingnefs 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 fimpleft man in the world knows, that a mutual onerous contract is always conditional; and that if the condition fails on one fide, whether from neceffity or fraud, the other is free. Therefore we have reafon 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 confequence to fay his opinion is illfounded or unjuft, as it manifeftly is in the prefent cafe; for whether it is juft or unjuft, if it is really his opinion (and we fhould wrong his fincerity to doubt it) the confequences are the fame with refpect to us. Men do often, perhaps generally, adhere with greater obftinacy to opinions that are ill, than thofe that are well founded, and avenge imaginary or trifling injuries with greater violence than thofe that are real and great. Nay, we may draw an argument for our danger from the very injuftice of his complaint. If he has conceived the convention to be broken on fo frivolous a pretence as that his lodging is not quite commodious, after the juft caution inferted by general Gates in the preliminary articles, what have we to expect from him as foon as he fhall recover his liberty, and the power of doing mifchief? It fhews a dif

pofition to find fault, and an impatience under his prefent confinement; the future effects of which we have the greatest reafon to dread.

The more I confider this matter, fir, the more it ftrikes me with its force. General Gates fays upon the fubject of accommodation, granted as far as circumstances will admit. Was not this proper and neceffary? It was very natural to suppose that general Burgoyne, accuftomed to the fplendor of the British court, and poffeffed with ideas of his own importance, would be but ill pleafed with the beft accommodations that could be obtained for him, and his numerous followers, in one of the frugal ftates of NewEngland. It was alfo in the neighborhood of a place not in the leaft expecting the honor of fuch guefts, which had been long the feat 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 lefs elbow room than he wished for. But as circumstances stand, by what conduct fhall we be able to fatisfy him? When will pretences ever be wanting to one feeking to prove the convention broken, when it is his inclination or his intereft to do fo.

It has been faid, fir, that we ought not to take this declaration of his in fo ferious a manner; that it was written rafhly, and in the heat of passion; and that he did not mean that we should dread fuch confequences from it. All this I believe to be strictly true. It probably fell from him in paffion-and very unadvisedly. But is he he first person that has rafhly betrayed his own mischievous defigns? Or is this a reason for our not availing ourfelves of the happy discovery? His folly in this inftance is our good fortune. He is a man, fir, whom I never saw, though I have been more than once in England; but if I fhould fay I did not know him, after having read his lofty and fonorous proclamation, and fome other productions, I fhould fay what was not true. He is evidently a man fhowy, vain, impetuous and rafh. It is reported of gene