Burgoyne, signally defeated and exposed to a new attack by double his fighting force, prudently retreated, on the stormy night of the 8th, to Saratoga, leaving behind his sick, wounded, and everything he could possibly spare. General Fraser was buried, as he had requested, in a large redoubt near the Hudson, the guns fired over his grave being the American artillery aimed at the group of distinguished mourners before knowing the occasion of their assembling.
Gates, who had not been personally engaged in either battle of his army, remained two days with his main body in the abandoned camp of the enemy at Wilbur's Basin, he judiciously having sent detachments to take advantageous positions to hem in Burgoyne. On the 11th, Gates ordered his main body to cross the Fishkill, supposing Burgoyne had further retreated; but his advanced guard of 1,500 men under Nixon quickly withdrew, having discovered the enemy intrenched and in battle array on the other side of the stream.
Burgoyne, now finding himself exposed to the concentric fire of the Americans, who nearly surrounded him, and having no opening through which to retreat to Lake George or to Lake Champlain, called a council of war to deliberate upon his desperate situation. "By their unanimous concurrence and advice", says he, "I was induced to open a treaty with Major-General Gates." At ten A. M. of the 14th, a flag of truce was sent by Burgoyne, asking for a parley, during which Gates demanded an unconditional surrender of the enemy's troops as prisoners of war. This proposition Burgoyne peremptorily refused to entertain. Hostilities in the mean time were suspended, and modified proposals were made. After two days' delay, Gates, hearing of Sir Henry Clinton's advance up the Hudson, and fearing that he might reach Albany, agreed upon the terms, dictated by Burgoyne, as follows:—
The Anglo-German troops to march out of their camp with all the honors of war, and their artillery to be moved to the bank of the Hudson River, and there left, together with the soldiers' arms, which were to be piled at the word of command from their own officers. It was further agreed that a free passage to Great Britain should be granted to the troops on condition of their not serving again in the present contest; that all officers should retain their baggage and side-arms, and not be separated from their men; and that all, of whatever country they might be, following the camp, should be included in the terms of capitulation. Before signing the treaty, Burgoyne demurred to designate it as a _capitulation_, whereupon Gates readily consented to its being called a TREATY OF CONVENTION, and as such it was signed October 16, 1777.