By Article II. General Howe was authorized to send transports to Boston to receive the troops for their conveyance to England. For its failure to carry out the obligation imposed upon it by its own general, the American government, through Congress, justified itself by claiming that Burgoyne had already evaded the provisions of Article I. of the convention. Bancroft, in his History of the United States, contends that it had been broken by Burgoyne at the time of the surrender, by the concealment of the military chest and other public property, of which the United States were thus defrauded.[734] He therefore sustains Congress in its subsequent demand for the descriptive lists "of all persons comprehended in the surrender", and the postponing of the embarkation of Burgoyne's army "until his capitulation should be expressly confirmed by Great Britain."
On the other side are many high authorities, among whom is Dr. Charles Deane, who, Oct. 22, 1877, made an exhaustive report upon the subject of the Convention of Saratoga to the American Antiquarian Society. He contends that the acts of Congress "were not marked by the highest exhibition of good policy or of good faith."[735]
Fair inferences, from the facts in evidence, lead to the belief that neither party was scrupulous in carrying out its obligations. Burgoyne, after a preliminary agreement to the terms of the convention, was in favor of breaking the treaty, because, before affixing his signature to it, he had heard of the success of Sir Henry Clinton in the Hudson Highlands. He was willing, therefore, to barter his plighted promise to further his own interest, and actually submitted to a council of his officers "whether it was consistent with public faith, and if so, expedient, to suspend the execution of the treaty, and trust to events." To the honor of the officers of the Anglo-German army, a decided majority of the council overruled the wishes of the general-in-chief, whereupon Burgoyne, Oct. 17, signed the convention.
Its second article stipulated that "a free passage be granted to the army, under Lieutenant-General Burgoyne, to Great Britain, on condition of not serving again in North America during the present contest." It seems almost incredible that even Gates could have been guilty of such fatuity in sacrificing by this article all the fruits of the past campaign, and jeoparding American independence. It would have been better to have disarmed and disbanded these demoralized troops on the spot. He could thus have saved the country much anxiety, inconvenience, and expense, in guarding, housing, and caring for them till rested from their fatigues and embarked for England, where they could be exchanged for an army of fresh troops, which might cross the ocean in the spring to plague the inventors of such a stupid compact, or convention.
Burgoyne was not slow to avail himself of a literal interpretation of words he had designedly used in drawing up the convention, for we find him, only three days after the surrender, writing to his friend, Colonel Phillopson: "I dictated terms of convention which save the army to the State for the next campaign."
Was it in the same spirit that Burgoyne carried out the first article of the convention, by which his "arms and artillery" were to be left piled on the banks of the Hudson? By a literal interpretation this might mean only muskets and cannon, but certainly such would not be the accepted military meaning of that article, especially as it had to be construed in connection with the sixth article, permitting all officers "to retain their carriages, bat-horses, and other cattle, and no baggage to be molested or searched; Lieutenant-General Burgoyne giving his honor that there are no public stores secreted therein." But, notwithstanding all this, Madame Riedesel, the wife of General Riedesel, says in her journal: "Now I was forced to consider how I should safely carry the colors of our German regiments still further, as we had made the Americans at Saratoga believe that they were burnt up—a circumstance which they at first took in bad part, though afterwards they tacitly overlooked it. But it was only the staves that had been burned, the colors having been thus far concealed. Now my husband confided to me his secret, and entrusted me with their still further concealment. I therefore shut myself in with a right honorable tailor, who helped me make a mattress in which we sewed every one of them. Captain O'Connell, under pretence of some errand, was dispatched to New York and passed the mattress off as his bed. He sent it to Halifax, where we again found it on our passage from New York to Canada, and where—in order to ward off all suspicion in case our ship should be taken—I transferred it into my cabin, and slept during the whole of the remaining voyage to Canada upon those honorable badges." She truly called them "honorable badges", for to an army they are the insignia of nationality and emblems of power, under which the soldier ventures his life and reputation.
How was it with the British flags? Burgoyne stated that they were all left in Canada. But it happens that one of them was displayed at Ticonderoga upon the evacuation of that place by St. Clair; and five of them were captured at Fort Stanwix from St. Leger, whose detachment accompanied Burgoyne till just before leaving Canada upon his great campaign. Further, it is written in the Historical Record of the Ninth Regiment that Lieutenant-Colonel Hill, of that regiment, "being anxious to preserve the colors, took them off the staves and concealed them in his baggage, which he was permitted to retain." Subsequently these colors, hidden among his baggage, in which Burgoyne had given his honor that no public property was secreted, Colonel Hill presented "to George III., who rewarded his faithful services with the appointment of aide-de-camp to his Majesty, and the rank of Colonel in the army."
As Burgoyne was by Article I. allowed to march to the ground of surrender "with the honors of war", General Horatio Rogers, with the sentiment of a true soldier, says in one of his admirable annotations of Hadden's Journal: "Had Burgoyne's officers believed that their colors were not embraced in the terms of the convention, they would have flung them to the breeze and proudly marched out under them, as an indication of how much of their honor they had preserved, especially when they supposed they were about to embark for England; for soldiers lay down their lives for their flags, the loss, surrender, or concealment of which, save in rare instances, is synonymous with defeat and humiliation."[736]
Though it appears that all of the accoutrements and other public property of the Anglo-German army were not surrendered and a considerable part was found unserviceable, it is unnecessary to make a special point of this minor matter, after presenting the graver delinquencies on Burgoyne's part.
General Halleck, one of the best authorities on the Laws of War, in his work on International Law, says: "The general phrase, 'with all the honors of war,' is usually construed to include the right to march with colors displayed, drums beating, etc.... A capitulation includes all property in the place not expressly excepted, and a commander who destroys military stores or other property after entering into such agreement not only forfeits all its benefits, but he subjects himself to severe punishment for his perfidy. So, after a capitulation for the surrender of an army in the field, any officer who destroys his side arms or his insignia of rank deprives himself of all the privileges of that rank, and may be treated as a private soldier. The reason of the rule is manifest. The victor is entitled to all the honors and benefits of his agreement the moment it is entered into, and to destroy colors, arms, etc. thereafter is to deprive him of his just rights. Such conduct is both dishonorable and criminal."