"NATIONAL RETALIATION": THOMAS JEFFERSON'S BRIEF FOR THE IMPRISONMENT OF HENRY HAMILTON
James H. O'Donnell, III
When the defeated Henry Hamilton was escorted eastward toward Virginia in 1779, the British official no doubt assumed that he would be treated as an officer and a gentleman. Nothing in the articles of capitulation, which he had signed, led him to believe otherwise. Upon his arrival in Williamsburg, however, he found himself clapped into the mephitic town jail, where, to his dismay, he was denied all human counsel. 
Hamilton complained mightily of this injustice, but Governor Thomas Jefferson of Virginia was equally unswerving in his belief that such treatment was justified. Quickly the incarceration of the British official became something of a minor cause celebre. For months Jefferson found himself forced onto the defensive, first by complaints from other imprisoned British officers and then by protests from American officials.
Ever equal to such a visceral controversy, Thomas Jefferson relied on his head to defend his actions. In his letters, he referred to justification for the imprisonment on the grounds of "National Retaliation" against Hamilton for his inhuman cruelties. Yet what his letters do not show, is the process of reasoning by which Jefferson reached his position regarding Hamilton's imprisonment. It is my purpose in this paper to suggest the workings of Thomas Jefferson's mind as he prepared a brief in defense of Henry Hamilton's confinement. The source for this information is an unpublished Jefferson document held by the Virginia State Library. 
During the American Revolution, Virginia's western frontiers sustained numerous attacks by Indian raiding parties from the Ohio country. From the state's viewpoint, these assaults were incited by the British, especially the officials at Detroit. Most culpable, according to the Virginians at least, was Henry Hamilton, despised by the Americans as an alleged "Hair-Buyer."
At the outbreak of the fighting in America, Hamilton had been an officer in the British army for twenty years, experience which had led to his commission as lieutenant governor at Detroit in April of 1775.  In his official capacities at Detroit, he dealt with the several Indian tribes in the Old Northwest who frequently came to the post for conferences. As part of his war-time effort to keep the area under British control, Lt. Governor Hamilton supplied the parties of Indians and partisans raiding the American frontier. Because the raiders who returned with either scalps or prisoners to Detroit had been supported by Hamilton, the Americans regarded the British official as having exchanged a quid pro quo, i.e., supplies offered for scalps or "flesh." Thus Henry Hamilton had come to be known as the "Hair-Buyer General."
So emotional and politically explosive was the issue of frontier death and destruction, that much legislative consideration was given to possible defensive or offensive measures which would eliminate this problem. Finally, Governor Patrick Henry of Virginia commissioned Lieutenant Colonel George Rogers Clark to organize and lead a picked force in to the Ohio country.  Clark and his troops would attempt to stop the raiders, and thus, the loss of life among Virginia's citizens. Although by that point in the war, Virginia had little capital and few other resources, Henry and Clark found spirited sympathy with their efforts.
After overcoming numerous political and financial obstacles, Clark and his intrepid band had reached the lower Wabash by early 1779. Defying logic, nature, and physical endurance, Clark challenged his men to follow him through the icy waters of the Wabash bottomlands toward Vincennes.  Fortunately for the Americans, their arch-enemy Hamilton had left Detroit with some troops and Indian auxiliaries to oppose the American invasion. Detained for the winter at Vincennes, Hamilton little suspected that a band of fanatics would emerge from the forests to surround him. To his great chagrin, he was defeated and forced to capitulate. Little did he imagine what lay in store for him. As an officer in the British army, Hamilton assumed that he would be treated according to the protocols of war.
George Rogers Clark, on the other hand, decided to send his prize across the hundreds of miles to the capital of Virginia at Williamsburg. It was no small accomplishment that the American guard parties carried off, in escorting the hated "Hair-Buyer" safely through the western settlements. Hostile stares greeted the party at every turn.  Indeed, Clark was extremely fortunate that Hamilton arrived in Williamsburg still in one piece.
When he reached the capital, Hamilton was informed that the governor and council of Virginia already had ordered him placed in irons and held in the solitary confinement of the town jail. Hamilton was outraged that a British officer should be "thrown into a dungeon among felons and malefactors."  In Hamilton's mind at least, the injury turned to insult when he was denied pen, ink, and all human counsel by the incensed Virginians.9
Once in the confines of the dark, smelly cell, Henry Hamilton turned his attention to persuading his jailer that the council's rules could be bent. His keeper was Peter Pelham, who served in the rather unusual capacity (at least to modern ways of thinking) of keeper of the Williamsburg jail and organist at Bruton Parish Church. Whatever else he may have gained from all the years of listening to sermons, he still had his sense of humanity, for soon he closed his eyes to the council's orders and obtained pen and paper for Hamilton.
Although the British officer complained mightily of the injustice which he had suffered, Governor Thomas Jefferson was unmoved. He and his advisors had become outraged by written and oral testimony which they had received, relating to the western Indian raiding parties as well as to the alleged treatment of American prisoners at Detroit. As a result, Jefferson and the Council had prepared a twelve hundred word condemnation, which concluded with harsh sentence imposed on Hamilton. As the order explained the Council had considered:
The Governor and the Council, moreover, had to know the conditions under which Hamilton would be incarcerated. Three years earlier they had received a report by a "Committee appointed to inquire into, and report the State of the Prisoners, in the Publick Gaol." The stifling, nauseating air in the jail was apparent from the report. 
However convinced Jefferson may have been of Virginia's justification in imprisoning Hamilton, he could not refrain from mentioning the matter in the majority of his public letters for a number of days. In the first three days after the Council's action, Governor Jefferson wrote to Richard Henry Lee, Theodorick Bland, the continental Board of War, John Jay, and George Washington.  Each message contained some pointed remark by Jefferson about the state's actions against Henry Hamilton.
Furthermore, lest the people of Virginia be ignorant of Hamilton's true character, Dixon's Virginia Gazette was provided a copy of Hamilton's "Address to the Inhabitants of Illinois," which was published on June 26, ten days after the Council's orders.  Certainly no patriotic Virginian of the day could read the address without denouncing Hamilton for his bloody plot to lay waste the frontiers. Hamilton wrote:
If Governor Thomas Jefferson never had cause to work out in systematic fashion his case for Virginia's treatment of the infamous "Hair-Buyer," he was given sufficient reason in a long questioning letter from General William Phillips, a British officer taken at Saratoga and sent to Virginia under the terms of the convention signed by General Burgoyne. During his residence in Virginia, Phillips had become acquainted with Jefferson and his family. On the basis of his friendship with the governor, Phillips wrote him on July 5, 1779, concerning the Hamilton affair. In this letter, the British general included what he termed "a public paper," which was a copy of the orders issued by the Council of Virginia placing Hamilton in jail. 
How far Thomas Jefferson had gone in mentally outlining a defense of Hamilton's imprisonment is not known, but in response to Phillips' questioning, he prepared what amounts to a brief defending Virginia's treatment of the British officer. The rough notes for his ideas are jotted on the back of a copy of the Council Order of June 16, 1779.  This glimpse into the Jeffersonian mind at work reveals how he defended the incarceration on the grounds of both national and personal retaliation.
On the back of the printed copy of the order, perhaps even the one which Phillips had included, Thomas Jefferson made his notes. First, he asked whether or not retaliation was proper, and then proceeded to justify it in the initial phase of his argument on the basis of bad treatment of American prisoners. Lest that line of reasoning seem too narrow, Jefferson then proceeded to make a case for personal retaliation against Hamilton because of his behavior during his Detroit and Vincennes commands. If one compares these notes with the letter replying to Phillips of July 22, 1779, Jefferson's logic, supporting evidence, and completed statements are evident. The outline is given flesh in the letter.
In the first substantive paragraph of the letter of Phillips, Thomas Jefferson opens his argument with the first point from his outline, namely "National Retaliation." The governor's justification comes from what he believes to be the general practice of British cruelty toward American prisoners since the beginning of the war. Jefferson expands at length to illustrate this point about British harshness.
If one sets aside the issue of National Retaliation, continues Jefferson, then Hamilton's personal conduct certainly warrants personal retaliation; again the writer is moving directly from the notes to the letter. Jefferson's note on "the nature of his command" becomes "the general nature of the service he undertook." Further, the comment that the "commander is answerable for what /is/ done by his men" becomes the sentence: "Those who act together in war are answerable for each other." Henry Hamilton is damned in both the notes and the letter for sending out parties of Indian and whites, thereby becoming the "butcher of Men, Women, and Children."
In both notes and letter, the governor castigates Hamilton for official proclamations in which Americans are encouraged to desert their noble cause, and by which plans are announced for British soldiers and forest auxiliaries combining their attacks against the frontiers. Jefferson alleges to have other documents establishing Hamilton's guilt in sending out British officers at the head of scalping parties.
Turning from the idea of retaliation, Thomas Jefferson addresses the fine points of prisoners taken in war. He was prompted to do this by General Phillips' assertion that the treatment of Hamilton was a violation of a capitulation entered into by Henry Hamilton with George Rogers Clark.
In the outline notes, Jefferson wrote: "Whether exempted by capitulation." The letter follows strictly along at the point, developing Thomas Jefferson's ideas about prisoners as being either "prisoners at discretion" or "prisoners on convention, or capitulation." The governor notes a speech made in the House of Commons on November 27, 1778 about General Burgoyne's status as a prisoner. Despite the understanding concerning prisoners under capitulation, Jefferson believed there were circumstances which justified Hamilton's treatment. "I do not propose to rely at all on those instances which history furnishes, where it has been thought justifiable to disregard express articles of capitulation from certain causes antecedent thereto; tho' such instances might be produced from English history too, and in one case where the King himself commanded in person."
The English monarch in this instance was William the Third and the excepted individual to whom Jefferson referred was Marshall Boufflers, who was arrested after the fall of Namur in 1695.  This incident would have been familiar to Jefferson from his knowledge of Rapin's History of England, a copy of which he had inherited from his father. He might have refreshed his memory by looking at Rapin, or by glancing at Smolet's less detailed treatment of the incident in his popular history of England. Nevertheless, argued Jefferson, "we waive reasoning on his head, because no article in the Capitulation of Governor Hamilton is violated by his confinement."
Also in the notes, but not in the letter to Phillip, Jefferson included a specific citation to Emeric de Vattel, Les Droit des Gens, book 3, paragraph 174, which concerns the treatment of enemies in war. Vattel's argument, interestingly, is a natural law one, which suggests that even in war men do not cease to be human and, therefore, should treat their enemies as such. By Jefferson's reasoning, Henry Hamilton had violated the law of nature by inciting the savages, and Jefferson was thus justified in an action sanctioned by Vattel:
Well might Governor Jefferson consult the authorities on his own reason, for he was soon questioned by General Phillips again, by Lt. Governor Hamilton when he managed to obtain paper, and finally by General George Washington. Repeating the argument of the Phillips letter of July 22, Jefferson paraphrases them in abbreviated form to Washington. Feeling somewhat less confident by the time he wrote to General Washington, Governor Jefferson asked the commander in chief if he might bring his military experience to bear on the matter. 
Happily for Virginia's governor, George Washington assumed the burden of responsibility. After discussing the matter with some of his aides, he informed Jefferson that Henry Hamilton should not be kept in close confinement. 
Thus armed, Jefferson obtained council approval for Hamilton's release from irons and isolation, though not from confinement. For a time, at least, Thomas Jefferson could concentrate on other exigencies of state leadership and let the case of Henry Hamilton rest.
What does this incident tell us about Jefferson? That he was an individual of monumental intellectual achievements we all know. Twenty-four years ago John Kennedy told an audience of the nation's most eminent musicians gathered in the White House's East Room that so much genius had not been assembled there since Thomas Jefferson dined alone. What we tend to overlook is the visceral Jefferson, the passionate, explosive, yes even spiteful human being, who often let his emotions control him. That dialectic between his head and his heart was a repeated and lifelong one, usually synthesized in the favor of his head to protect the fragility of his heart. What we have seen in this brief case study is how the impassioned Thomas Jefferson hastily condemned a man for his actions and then was forced to work out a rationale after the fact. We may never know all the many Jeffersons, but at least we know he was more than a man of marble.
1. For details of Hamilton's experiences see: John D. Barnbart, Henry Hamilton and George Rogers Clark in the American Revolution with the Unpublished Journal of Lieutenant Governor Henry Hamilton (Crawfordsville, Indiana: R. E. Banta 1951; Orville John Jaebker, "Henry Hamilton: British Soldier and Colonial Governor" (published Ph.D. dissertation, Indiana University, 1954); and Bernard Sheehan, "'The Famous Hair Buyer General': Henry Hamilton, George Rogers Clark, and the American Indian," Indiana Magazine of History, 79(March, 1983): 1-28. For a recent review of the sources concerning Clark in the West, see Robert M. Sutton, "George Rogers Clark and the Campaign in the West," Indiana Magazine of History, 76(December, 1980): 334-345.
2. Orders of the Virginia Council, June 16, 1779, printed copy by John Dixon and Thomas Nicolson, in Convention Papers, 1779, Virginia State Library, Richmond, Virginia.
3. Jaebker, Hamilton, passim.
4. George Rogers Clark to Governor Patrick Henry, February 3, 1779, in James Alton James, ed., George Rogers Clark Papers, 1771-1781, in Collections of the Illinois State Historical Library, VIII:97-99 (Springfield, Ill., 1912).
5. Sheehan, "Famous Hair-Buyer General."
6. As Clark wrote to Henry, "Great things have been affected by a few Men well Conducted," in Clark to Henry, February 3, 1779, Clark Papers.
7. Barnbart, Hamilton Journal, passim.
8. Henry Hamilton's Reasons for not Accepting Parole, September 27, 1780, Hamilton Manuscripts, Houghton Library, Harvard University.
9. Orders of the Virginia Council, June 16, 1779, Convention Papers, Virginia State Library.
11. "Report of the Committee to Report the State of Prisoners in the Public Gaol," Convention Papers, 1776, Virginia State Library.
12. The Papers of Thomas Jefferson, edited by Julian P. Boyd (Princeton, N. J.: Princeton University Press, 1951-), 2:298-300; 3:4-6.
13. The Virginia Gazette (Dixon and Nicolson), June 26, 1779, page 1.
14. William Phillips to Thomas Jefferson, July 5, 1779, Jefferson Papers, 3:25-28.
15. Notes in Jefferson's Hand, reverse side of Orders of the Virginia Council, June 16, 1779, Convention Papers, 1779, Virginia State Library.
16. Concerning the books in Jefferson's library and his use of them, see: E. Millicent Sowerby, Catalogue of the Library of Thomas Jefferson (Washington: The Library of Congress, 1952); and William Harwood Peden, "Thomas Jefferson: Book-Collector" (unpublished PhD dissertation, University of Virginia, 1942). For Rapin and Smollett see The History of England by Mr. Rapin de Thoyras continued from the Revolution to the Accession of King George II by N. Tindal, M.A. (London, 1745), 111:298-99, and T. Smollet, The History of England from the Revolution to the Death of George the Second (London, 1793, 5 vols) 1:259. Thanks to Cynthia M. Stiverson, Research Librarian, Colonial Williamsburg Research Foundation, for the use of Rapin housed in the Secretary's Office of the Capitol Building in Williamsburg. I am also indebted to Gregory Stiverson, Research Associate at Colonial Williamsburg for an examination of the Virginia Gazette Daybook, 1764-66 indicating at least four sets of the early edition of Smollett were sold during that period.
17. Emeric de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns, translated by Charles G. Fenwick (Washington, 1916), Book III, p. 296.
18. Jefferson to Washington, July 17, 1779, Jefferson Papers, 3:40-41.
19. Washington to Jefferson, August 6, 1779, ibid., p. 61.
Professor O'Donnell gratefully acknowledges the support of the American Philosophical Society and the Colonial Williamsburg Research Foundation for the research involved in this article.
Last Updated: 23-Mar-2011