Provisional Agreement of Exchange of Naval Prisoners of War
November 28, 1812
The provisional agreement of November 28, 1812, mentioned in the opening clause of the cartel, did not go into force, as it met with objections on the part of the United States. The original of that provisional agreement has not been found; but there is a broadside of it in the archives of the Navy Department (Naval Records and Library) and a facsimile thereof in the archives of the Department of State, from which the text following is taken:
A PROVISIONAL AGREEMENT, for the Exchange of Naval Prisoners of War made and concluded at HALIFAX, in the Province of NOVA SCOTIA, on the 28th day of November, in the Year of Our Lord One Thousand Eight Hundred and Twelve, between the Government of GREAT BRITAIN and the Government of the UNITED STATES of AMERICA.
The Government of the United States of America having sent to Halifax JOHN MITCHELL, Esquire, late Consul of the United States of America at St. Jago de Cuba, to act as Agent on the Part of the United States of America, for the purpose of adjusting with the Admiral Commanding at Halifax and the West-Indies the Exchange of Prisoners taken at sea; And His Excellency the Right Honourable Sir JOHN BORLASE WARREN, a Privy Counsellor in the United Kingdom of Great-Britain and Ireland, Knight of the Most Honourable Order of the Bath, Knight of the Crescent, Admiral of the Blue, and Commander in Chief of all His Majesty's Ships of War stationed on the coasts of North America and the West-Indies, having appointed RICHARD JOHN UNIACKE, Esquire, a Member of the Honourable His Majesty's Council, and the Attorney and Advocate General of His Majesty for the Province of Nova-Scotia, and WILLIAM MILLER, Esquire, Lieutenant in the Royal Navy and Agent for Prisoners of War at Halifax, as Agents to treat with the said JOHN MITCHELL on the part of His Majesty's Government for the Exchange of such of His Majesty's Subjects as have been or may hereafter be captured at sea, by the public or private Ships of War belonging to the United States of America, for the American Prisoners which have been or hereafter may be taken at sea by His Majesty's Ships of War and Privateers; and the said Agents having met and discussed the Matters to them referred, have agreed upon the following Articles
I. The Prisoners taken at Sea on both sides shall be treated by the Government of each Nation with humanity, conformable to the usage and practice of the most Civilized Nations during War; and such Prisoners shall without delay, and as speedily as circumstances will permit, be Exchanged upon the following Terms and Conditions That is to say An Admiral or a General Commanding in Chief shall be exchanged for Officers of equal rank, or for sixty Prisoners each; a Vice-Admiral, or a General of Division, shall be exchanged for Officers of equal rank, or forty Prisoners; a Rear-Admiral, or a General of Brigade, for Officers of equal rank. or thirty Prisoners; a Commodore carrying a Broad Pendant, with a Captain under him, or a Chief of Division, shall be exchanged for Officers of equal rank, or twenty Prisoners; the Captain of a Line-of-Battle Ship, or a Chief of Brigade, shall be exchanged for Officers of equal rank, or fifteen Prisoners, a Captain of a Frigate or Sloop of War, or a Chief of Battalion, shall be exchanged for Officers of equal rank, or eight Prisoners; a Lieutenant, or Master in the Navy, or a Captain in the Army, shall be exchanged for Officers of equal rank, or six Prisoners; Ensigns, or Masters Mates in the Navy, or Lieutenants in the Army, shall be exchanged for Officers of equal rank, or four Prisoners; Mid-shipmen; Warrant Officers in the Navy, Masters of Merchant Vessels, Commanders of Privateers, or Sub-Lieutenants or Ensigns in the Army, shall be exchanged for Officers of equal rank, or three Prisoners; Second Captains, Lieutenants, or Mates of Merchant Vessels, or Privateers, and all Petty Officers in the Navy, and all Non-Commissioned Officers in the Army, shall severally be exchanged for persons of equal rank, or for two Seamen; and common Seamen, or Soldiers, shall be exchanged the one for the other.
II. All Non-combatants, that is to say, Surgeons and Surgeon's Mates Pursers, Secretaries, Chaplains and Schoolmasters, belonging to the Army or to Men of War; Surgeons and Surgeon's Mates, belonging to Merchant Vessels or Privateers; Passengers, and all other Men who are not engaged in the Naval or Military Service of the Enemy, not being sea-faring persons; all Women and Girls, and all Boys under twelve years of age; every Person of the foregoing description, if taken, shall be immediately released without Exchange; provided there is no particular reason, or objection made, by the Commanding Officer on the station where detained; in which case they shall be admitted to their Parole, and when ordered to leave the Country, shall take their departure at their own charge, agreeably to Passports to be granted them, or otherwise shall be put on board of the next Cartel which sails; persons found on board recaptured ships whatever situation they may have held in the capturing ship, shall not be considered as Non-combatants. Non-combatants are not to be imprisoned, except for improper Conduct, and if poor, or unprovided with means to support themselves, the Government of each Nation will allow them a reasonable Subsistence, having respect to their rank and situation in life.
III. American Prisoners taken and brought within the Command of His Excellency the Admiral, shall be stationed for exchange at HALIFAX, QUEBEC, BRIDGETOWN in the Island of Barbadoes, and KINGSTON in the Island of Jamaica, and at no other ports. And British Prisoners taken and brought into the United States of America, shall be stationed at BOSTON, NEW YORK, PHILADELPHIA, and CHARLESTOWN, and at no other ports in the United States. The Government of Great Britain will receive and protect an Agent, to be appointed by the Government of the United States, to reside at each of the before-mentioned places, in the British Dominions, for the purpose of inspecting the management and care which is taken of the American Prisoners of War at each Station; And the Government of the United States will in like manner receive and protect an Agent to be appointed by the British Government, to reside at each of the four Stations mentioned within the Dominions of the United States, for the like purpose of inspecting the management and care taken of the British Prisoners of War at each Station; and Naval Prisoners of War shall not be sent for Exchange to any other port or place within the Command of His Excellency the Admiral, save the four ports before mentioned, nor into any other port or place in the United States, save the four ports before mentioned.
IV. Admirals, Generals, Commodores, Field-Officers and Staff-Officers, in the Army; Captains in the Navy or Army, Lieutenants and Ensigns in the Navy or Army, Masters and Master's Mates, Midshipmen and Warrant Officers of Men of War, Masters and Chief Mates of Merchant Vessels, being of fifty tons and upwards, Captains and First and Second Lieutenants of Privateers being of fourteen carriage guns mounted, of four pound shot or more, and all Non-combatants, as before described, if captured on the sea, shall be admitted to Parole, the form of which shall be as follows-That is to say,
Whereas, the Agent appointed for the Care and Custody of Prisoners of War at _______________ in ___________________ has been pleased to grant leave to the Undersigned Prisoner of War, as described on the back hereof, to reside in ________________ upon Condition that ______________ give Parole of Honour not to withdraw ___________ from the bounds prescribed _______________ there, without leave for that purpose from the said Agent. That ______________ will behave ____________ decently and with due regard to the laws of this Country. And also that _________ will not during continuance in ____________ either directly or indirectly carry on a Correspondence with any of the enemies of _____________ or receive or write any letter or letters whatever but through the hands of the said Agent, in order that they may be read and approved by him ___________ do hereby declare _____________ have given _____________ Parole of Honour accordingly; and that _____________ will keep it inviolably. Dated at _________
Ships Name, or Corps.
Man of War, Privateer, or
Merchant Vessel in which taken.
And the Agent who shall take such Parole, shall grant a Certificate to each Prisoner so paroled, Certifying the limits to which his Parole extends, the hours and other rules, to be observed, and granting permission to such person to remain unmolested within such limits; and every Commissioned Officer in Navy or Army when so paroled, if in health, shall be paid by the Agent of the Government that has granted such parole to him, during the continuance thereof, the sum of Three Shillings sterling each per day, for subsistence; and all other prisoners, so paroled, shall be paid each person at the rate of One Shilling and Six Pence sterling per day, which pay, in case of actual sickness, shall be doubled to each, so long as the Surgeon shall certify the continuance of such sickness; and each sick Prisoner shall also be allowed the attendance of a Nurse, in case the Surgeon shall certify the person to be so ill as to require such help; all which subsistence and pay is to be paid in advance, twice in every week; and Prisoners who shall wilfully disobey the rules and regulations established for prisoners on parole, may be sent to prison. And all Rules and Regulations to be observed by Prisoners on Parole, are to be published and made known to each Prisoner; and when any Prisoner shall be allowed to depart at his own expense, if he has not a sufficiency of money for that purpose, he shall be allowed necessary money, not to exceed the Parole Subsistence, to which he would have been entitled for one month, if he remained.
V. And in case any Prisoner be permitted to return to his own Country on Parole, on condition of not serving until duly exchanged, such Prisoner shall sign an engagement in the following form:
Whereas, _________ Agent for the Care and Custody of Prisoners of War at _________ has granted me the Undersigned Prisoner, described on the back hereof, Permission to return to _____________ upon condition that I give my Parole of Honour, that I will not enter into any Naval, Military, or other Service whatever, against the __________ or any of the Dominions thereunto belonging; or against any Powers in Alliance with ____________ until I shall have been regularly Exchanged, and that I will surrender myself, if required by the Agent of the Government, at such place and at such time as may be appointed, in case my Exchange shall not be effected, and I will until exchanged, give notice from time to time of my place of residence-Now, in Consideration of my Enlargement I do hereby declare, that I have given my Parole of Honour accordingly, and that I will keep it inviolably. -Given under my hand at _________ This _______ day of _______ in the Year of our Lord
And the Prisoner so granted his Enlargement on Parole, shall be given a Certificate and Passport, specifying the terms and conditions of his Enlargement, and a description of his person. And Notice of such Parole Agreement shall be sent to the Agent for Prisoners of War at the nearest Station to the place where such Parole shall be granted.
XI. In Case any Prisoner of War, the Subject of either Nation, shall become unmindful of the honourable obligation he lies under to the Nation that shall have granted him his Parole, and shall violate the same, he shall be liable to be dealt with according to the usages and customs observed in such cases, by the most civilized Nations, when at war; and either Nation shall have a right to demand from the other, the surrender and restoration of any Prisoner of War who shall violate his Parole; and every just and reasonable satisfaction shall be given to the Nation demanding the same, to shew that if such Prisoner be not returned, it is by reason of his not being within the power or dominion of the Nation to which he originally belonged.
VII. No person shall be struck with the hand, stick, whip, or any other weapon whatever; their Complaints shall be attended to, and real grievance redressed; they are to be allowed a sufficient subsistence, and if they behave disorderly, they may be close confined, and kept on two thirds allowance, for a reasonable time, not exceeding ten days
VIII. Every Facility shall be given, as far as circumstances will permit to the Exchange of Prisoners, giving a preference to exchange those longest in confinement, beginning first with the Officers and Men in the Naval or Military Service of each Government; next with the Officers and Men belonging to Merchant Vessels; and last, with the Officers and Men belonging to Privateers and if any Prisoner is kept back, when his turn for Exchange shall arrive, good and sufficient cause shall be assigned for such detention; and if the Government of either Country shall express a desire that any particular Prisoner or Prisoners should be exchanged before their regular turn shall arrive, due attention will be paid to such request; and if refused, the reasons and causes of such refusal shall be assigned.
XIV. To carry on a regular Exchange of Prisoners between the two Countries, four Vessels shall be employed, which shall be as near as possible of the burthen of One Hundred and Fifty Tons each; two of which vessels shall be provided by the British Government, and two by the Government of the United States, and are to be manned, victualled, and provided with every necessary and convenience, for the safe transportation of Prisoners: The expense of the two British vessels is to be defrayed by the British Government; and of the two American vessels, by the Government of the United States; when those vessels are provided, surveyed and approved of by the proper Officers of both Governments, they shall be furnished with passports from both Governments as Flags of Truce, and shall carry arms and ammunition sufficient to guard the Prisoners and keep them in subjection, and shall each carry one signal gun, with a few charges of powder, and shall carry a White Flag constantly at the Foremast Head; the British Cartels shall carry a British Ensign at the Gaff-end, or Ensignstaff, and the American Ensign at the Main Topmast Head; and the American Cartels shall carry the American Ensign at the Gaff-end, or Ensign staff, and the British Ensign at the Main Topmast Head. -No Cartel shall be suffered to proceed to sea with less than thirty days full allowance of Water and Provisions for the ships Company and the number of Prisoners embarked on board; and when such Cartels shall be established, they shall be kept at all times constantly well provided with sails, rigging, and every thing proper and necessary to make them staunch, safe and sea-worthy; and shall be constantly employed in carrying Prisoners to and from the different stations herein before named and appointed for the Exchange of Prisoners; and when carrying American Prisoners from a British port to an American port, the American Agent at the port of embarkation, shall direct the station at which such Prisoners shall be delivered; and when carrying British Prisoners from an American port, the British Agent shall direct at what British station such Prisoners shall be delivered. And the Agents for Prisoners of War on both sides, shall, by agreement, settle and fix the several species of Provisions which shall constitute the daily ration to be served out to Prisoners, while on board Cartels, with the value thereof; and a regular account shall be kept of the number of days each Prisoner shall have been victualled on board of each Cartel; and the British Government shall pay at that rate the expense and cost of victualling the British Prisoners delivered at a British station; and so the American Government shall, in like manner, pay at the same rate the daily charge of Victualling the American Prisoners delivered at an American Station; but no charge is to be introduced for the transportation or carriage of Prisoners, as each Nation is to furnish for that service an equal number of Tons of Shipping. No Cartel shall be permitted to remain in Port more than five days after her arrival, unless delayed by winds or weather, or the order of the Commanding Officer of the Station at which she may be, whether British or American. And in future, Cartels shall on no account, unless driven by stress of weather, or some other unavoidable necessity, put into any British or American port, save the ports herein before appointed for the Exchange of Prisoners. And in ease the number of vessels now agreed on, to be provided as Cartels, shall be found insufficient, the number may be increased; and so, in like manner, diminished by agreement, as the occasion may require-each Nation furnishing always an equal share of the Tonnage necessary.
X. Until regular Cartels shall be provided, as stipulated in the foregoing Article, the transportation of Prisoners is to be conducted and paid for by each Nation, according to the Method hitherto observed in the present war; and after regular Cartels are established, in ease a number of Prisoners, not less than One Hundred, may be collected at any other British or American Port, different from the ports before-named a temporary Cartel may be fitted out by order of the Commanding Officer at such port or ports, for the purpose of carrying such Prisoners, if British, to one of the British Stations before-named, and if American, to one of the American Stations before-named, and to no other port or place. Provided always, that such Cartel shall bring at least One hundred Prisoners, and shall receive an equal number in Exchange, with liberty to return with them to any port of the Nation to which she belongs; and the Prisoners, so delivered in Exchange, on board of such temporary Cartel, shall be Certified to one of the regular Stations of Exchange, where they shall be credited to the Nation so delivering them in Exchange, whether they arrive at the port of destination or not; but should there not be an equal number at such Station to exchange for the number brought, the transportation and victualling, in such temporary Cartel, must be paid for so many Prisoners as shall not be exchanged.
XI. Lists shall be exchanged by the Agents on both sides, of the Prisoners hitherto delivered, and after such Lists are adjusted and signed, agreeably to the Rule of Exchange hereby established, the Persons named therein shall be considered as liberated and free to serve again, notwithstanding any Parole or Engagement they may have previously entered into; and in future, no Prisoner embarked in regular Cartels, shall be credited to either Nation as exchanged, until delivered at one of the Stations of the Nation to which such Prisoner belongs, and a Receipt obtained from the proper Agent, Certifying such delivery; and when special Exchanges are negotiated in discharge of special Paroles, a Certificate of such Exchange must be forwarded to the Station where such Parole was granted.
XII. If either Nation shall, at any time, have delivered more Prisoners than it has received, it is optional with such Nation to stop sending any more Prisoners on Credit, until a return shall be made of Prisoners, equal to the balance so in advance.
XIII. His Excellency the Admiral, will execute these Articles provisionally, subject however to be discontinued, if hereafter His Majesty's Government should disapprove of the same, or any part thereof; And the Admiral will transmit a Copy of these Articles to His Excellency Lieutenant-General Sir GEORGE PREVOST, Baronet, His Majesty's Governor General and Commander in Chief of His Majesty's Armies in North America, and will recommend to him to agree to the same, so that the Exchange of Prisoners taken on the Land, may be made agreeably thereto, and the Admiral will request the Lieutenant General to make known to the Government of the United States his Assent or Dissent thereto, through ANTHONY ST. JOHN BAKER, Esquire, His Britannic Majesty's Agent for the Care and Exchange of British Prisoners in the United States of America. -And it is moreover further agreed, That if any difference of opinion should hereafter arise in carrying these several Articles into execution according to the true intent and meaning thereof, the Exchange of Prisoners shall not be delayed or retarded, in consequence of such misunderstanding, but the particular points in difference shall be discussed and arranged by Agents to be appointed for that special purpose by both Governments, who shall govern themselves in such arrangements by what is the known and established Law of civilized Nations, when at war, relative to the subject in difference.
IN WITNESS whereof, We the Undersigned, have hereunto set our Hands and Seals, the Day and Year Before written.
RICH. J. UNIACKE.
To be approved by the President of the United States.