USA > South Carolina > The history of South Carolina in the Revolution, 1780-1783 > Part 14
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From the High Hills of Santee he once more appeals to Marion for an interview, adding, "You will readily agree with me that the worst of consequences are to be appre- hended from my having to return without seeing you and fixing upon a proper mode of our future proceedings." 3 But Marion had made no response, and Sumter, failing to obtain cooperation from him, had gone back to the Wax- haws, whereupon Rawdon had turned upon Marion.
As he could obtain no conference with Marion, Sumter now assumed the responsibility of a reorganization of the militia, under Governor Rutledge's original instructions accompanying his commission as brigadier general, and by which he was especially charged to give the strictest orders and use the most efficient means to prevent the shameful practice of plundering.
As the volunteer, who was always mounted, must be supplied with food for himself and forage for his horse, he had helped himself from the British magazines or the Tory barns as occasion allowed; and when these could not be drawn upon, he took from his own friends what his necessities demanded. This was not improper in such a warfare, but it was demoralizing to the troops and ruinous to the country. Still more so were the bands of thieves and robbers which this condition of affairs inevitably pro-
1 Gibbes's Documentary Hist., 1781-82, 23. 2 Ibid., 49.
8 Ibid., 28.
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duced -men representing themselves now as Whigs, and now as Tories, according as were the parties to be plundered. In regard to horses also there was the further consideration that, if not taken by the Americans, they would fall into the hands of the British or Tories, and supply their most pressing want. General Greene writes to Sumter, 15th of April : -
" Although I am a great enemy to plundering, yet I think the horses belonging to the inhabitants within the enemy's lines should be taken from them, especially such as are either fit for the wagons or dra- goon service. If we are superior in cavalry, and can prevent the enemy from equipping a number of teams, it will be almost impos- sible for them to hold their posts, and utterly impossible to pursue us if we should find a retreat necessary."1
From the "New Acquisition," the present county of York, Sumter writes to Marion, on the 28th of March, his plan of remedying these evils : 2-
"It was exceedingly mortifying, after so much pains taken, to be deprived of a conference with you, a circumstance much to be la- mented, as both individuals and the publick are consequently much injured thereby. Your advice and assistance in framing, adjusting, and laying down a proper plan of operation against the enemy in future might have produced the most happy events. My unfortunate failing herein, and withal finding, contrary to my expectations, that you had neither men or supplies of any kind, and the force I had with me but small and from many causes decreasing, rendered my retreat at once both necessary and difficult. I find that the dis- orders are prevalent in your brigade which have for some time been practised in the frontiers with such avidity as to threaten the State with inevitable ruin. To obviate which evil, as far as possible, I have adopted measures truly disagreeable, such as can only be justi- fied by our circumstances and the necessity of the case. But it is clearly my opinion, unless this or a similar method be immediately carried into effect, that neither the State or the wealth thereof will
1 Sumter MSS., Year Book, City of Charleston, 1899, Appendix, 89.
2 Gibbes's Documentary Hist. (1781-82), 44-45.
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be in the power or possession of the deserving citizens after a few weeks. The dissoluteness of our pretended friends and the ravages committed by them are as alarming and distressing as that of having the enemy among us. It is therefore necessary immediately to dis- criminate who are enemies and who are real friends; the former treated as their business and perfidy authorize ; the latter to be known only by their conduct - that is, by bearing arms and doing duty when thereunto required by proper authority, and in case of refusal or neglect both person and property to be treated and dealt with accordingly. Nothing can be more unwise or impolitic than to suffer all the wealth of our country to be so basely and unfairly appropriated for the sole purpose of accumulating our misfortunes, and finally com- pleting our ruin, which it is in our power at once to check, if not totally prevent the evils and disadvantages resulting therefrom; to which end I propose raising several regiments of Light Dragoons upon the State establishment, agreeably to the enclosed sketch of a plan for that pur- pose. I therefore request that you would be pleased to cause to be im- mediately raised in your brigade two regiments agreeably thereto. I have also to request that you give orders and oblige every person with you to join their proper regiments or brigades, and that none of the enemy when taken be paroled or set at liberty, but in cases of extreme necessity - that all the property captured or taken from the enemy be securely kept for publick purposes except what is allowed to, and appropriated to and for the use of the troops in service agreeably to terms proposed. Nothing can be more essential to promote the hap- piness and secure the peace and tranquillity of the people of this coun- try than treating with the utmost severity all persons who contrary to orders and to the total subversion of all authority take upon them- selves to form parties to go a plundering, distressing the resources of the country necessary for the use and support of the army."
Sumter at this time was still suffering from the wound received at Blackstock. He closes this letter to Marion with the observation, "I write in so much pain as hardly to know my own meaning or read what I write."
What were the measures so truly disagreeable which he directed Marion to adopt are not stated ; but a letter writ- ten by Colonel Richard Hampton to Major John Hampton just after, that is, on the 2d of April, gives the terms upon
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which the new regiments were to be organized. It is as follows : 1-
"DEAR BROTHER - For news I give you the following, viz : Bro. Wade has joined Gen'l Sumter and has left all his property in the possession of the British and Tories ; he now fights them hard. Bro. Henry is raising a regular regiment of Light Horse, as also Col. Middleton, Hawthorn Hill. Bro. Wade, I believe, will also raise a regiment. It will not be amiss to mention the terms on which they are to be raised and the number each regiment is to consist of. The troops are to enlist for ten months, each regiment to have one Lieutenant Colonel, one Major, five Captains, ten Lieutenants. Each company two sergeants, twenty-five privates, the pay to be as fol- lows: Each Colonel to receive three grown negroes and one small negro; Major to receive three grown negroes; Captain two grown negroes; Lieutenants one large and one small negro ; the Staff one large and one small negro; the sergeants one and a quarter negro.2 Each private one grown negro. And to be furnished with one coat, two waistcoats, two pair overalls, two shirts, two pair stockings, one pair of shoes and spurs, one horseman's cap, one blanket, (and one half bushel salt to those who have families), with two-thirds of all articles captured from the enemy except negroes and military stores, and salvage allowed them for all articles belonging to our friends which we may capture from the enemy, and to be equipped with a sword, pistols, horse, saddle, and bridle, &c. Should you meet with any young men who are willing to turn into this kind of service you may assure them that the terms will be strictly complied with, and the General directs that any who think proper to come out with the wagons to join the hard service are to be served with provisions for themselves and horses."
Earnest and sincere as Sumter doubtless was in this effort to reorganize the volunteer bands and to provide a regular force enlisted for a definite term upon consideration
1 Gibbes's Documentary Hist. (1781-82), 47-48. MSS. in Secretary of State's office, Columbia.
2 Under ten years or over forty was a half negro, a full negro being valued at $400. - Ed. Gibbes's Documentary Hist. (1781-82), 48. Negro slaves were regarded as subjects of spoil by all parties, the British officers as well as by the Americans, Continental and State troops.
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of pay in kind - negroes and salt - if not in money, it might well have been doubted if troops raised upon such terms would prove better soldiers than the patriotic volunteers, who came and went as the occasion permitted, but who served for no other reward than the hope of obtaining the freedom of their country. Sumter's purpose was to secure a body of men enlisted for a definite period and compensated for their services in such a manner as to avoid the necessity of their living upon the country indiscriminately ; and then to put down all excuse for plunder. As there was no organ- ized government to draft men, nor any money with which to pay them, he proposed voluntary enlistment for a share of the spoils taken from the enemy and salvage on property rescued and restored to their friends. But this scheme was at last based only upon organized plunder instead of private robbery. The troops were to be paid from what they could take from the enemy.1
1 Sumter and Pickens each organized troops on this plan, which was known as "Sumter's law," and in doing so incurred responsibilities for which they were called upon to answer when the war was over. To relieve them from their liabilities acts were passed by the General Assembly in 1784 to indemnify them and such persons as had acted under them " from vexatious suits on account of their transactions during the British usurpa- tions in this State " ( Statutes of So. Ca., vol. IV. 598-601). Cases were, however, brought which necessitated a consideration of the matter by the courts of the State, and in which the judges repudiated the seizures under "Sumter's law," but in which the juries would not follow the instruction of the judges. The first case, Porter v. Dunn, 1 Bay's Reports, 53, was tried in 1787 before Judge John Faucheraud Grimké, who had been an officer in the Continental army. From the reports of this case, we learn, that it had appeared in evidence on the trial that in order to do justice to the officers and soldiers in the brigade, a commissary was appointed to take custody of the property seized, and also a board of field officers whose duty it was to examine into the claims of each individual and like- wise into the property taken ; and if the property belonged to one friendly to the interests of the country, it was restored to him ; but if to the enemy or their adherents, it was delivered to the officers and men in lieu of pay.
The case was hotly contested. General Charles Cotesworth Pinckney, VOL. IV. - L
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Marion appears to have disapproved of the scheme, and quite a sharp correspondence passed between Sumter and
who, it must be observed, had been in the Continental line and not in the militia or volunteers, appeared for Dunn, from whom the negroes in the case had been taken. He maintained that Dunn had never been divested of his property either voluntarily or by any competent tribunal. That the seizure of the negroes was an unlawful act not warranted by the law of nations or any municipal law. He endeavored to show, that though Dunn had at one time been deluded and had joined the British standard, he had returned to the American cause and had since conducted himself as a good citizen. But he insisted that the property taken from an open enemy was not changed in war until the capture had been legally investigated in some court of competent jurisdiction, nor until a condemnation had taken place. On the other side John Julius Pringle, appearing for Porter, the officer who held the negroes under an assignment from the board of field officers, urged that, though the act of taking the property was not squared with the nice rules of law, yet the necessity of the times, the desperate situation to which the country was at that time reduced, justified its policy. The State was overrun, ravaged, pillaged from one end to the other, and its defenceless inhabitants suffered every species of injury and insult. It was without resources and without men to defend it. New and extraordinary measures were necessary, and they were adopted. He pleaded the acts of indemnity as sure and complete protection to his client. That whatever was irregular or not conformable to the rules of war in the conduct of the General or any of his officers was cured and legalized ; that the property so disposed of for public use vested in the persons to whom it was delivered. The only remedy the former proprietor had was by application to the legislature, which had, in many instances, when favorable circumstances accom- panied the applicant's claim, granted full compensation.
Judge Grimké charged the jury that the practice of taking property from an enemy was not justified by the law of nations or rule of warfare. That it had a tendency to promote licentiousness in the army, was discounte- nanced by all civilized nations. Nevertheless, he held that the act of in- demnity protected the officer, and that the former owner of the negroes could only look to the legislature for compensation. Under this charge the jury found for the officer. A new trial was moved for before a full bench, consisting of Judges Henry Pendleton, Ædanus Burke, Thomas Heyward, Jr., and J. F. Grimké, who granted a new trial on the ground that it was a hard case ; but upon the second trial, at Camden, the verdict was again for the officer and this was acquiesced in.
But the subject was not yet closed. It was again mooted in 1792, in
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himself upon the subject. This, however, originated in a matter of much less consequence, -a dispute between two of their officers as to the regiment in which certain recruits were to be enlisted. Colonel Kolb, an officer of Marion's brigade, complained that Major Snipes, under Sumter's alleged authority, had taken some of Kolb's recruits for an in- dependent company Governor Rutledge had authorized Snipes to raise. But, though originating in the discussion of this matter, Sumter complains of Marion's opposition to the raising of troops upon the State Establishment as he pro- posed, and resents the ground which Marion seems to have taken that there was no authority for the measure.1
Sumter's scheme was not a success. He raised but few
the case of the Administration of Moore v. Cherry, 1st Bay's Reports, 269. In this case, which was tried at Ninety Six, it appeared that the negro was taken from some persons called Tories, says the report, by a scouting party under the command of Colonel Brandon, who sold the property taken and divided the proceeds among the party. Judge Grimke presided at this trial, as he had at the former, and likewise charged the jury against the defendant who had purchased the negro from the captors, and in favor of the plaintiff, the former owner. The jury, however, as did the former, found for the defendant. At a second trial Judge Burke, who presided, charged, as had Judge Grimké, for the plaintiff, but the jury again found for the defendant. An appeal was taken, and upon the hearing the principal question was whether a third trial would be granted. John Rutledge, who was then Chief Justice under the constitution of 1790, was of opinion that, as this was a dispute about property taken during the war, it was best that there should be an end of it ; though holding that it was competent for a court to order a third trial, he nevertheless was opposed to granting it in this case. Judge Waties, who had been one of Marion's men (and Marion, it will be recollected, had refused to act under " Sumter's law"), not only maintained the power of the court to order a third trial, but was of opinion it should be granted in this case ; and in this view Judge Bay concurred. What was the result of the trial, if it ever took place, we do not know. James Yancey appeared for the plaintiff, and Robert Goodloe Harper for the defendant. It is interesting that the author has before him the original manuscript notes of argument of the counsel in this case.
1 Gibbes's Documentary Hist. (1781-82), 65.
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men under it. Ramsay observes that hitherto all of Sumter's enterprises had been effected by volunteers from the militia, but the long-continued service in the field pointed out the propriety of a more permanent corps. General Sumter, therefore, in March, 1781, with the appro- bation of General Greene, enlisted three small regiments of regular State troops, to be employed in constant service for the space of ten months. With these and the returning Continentals, he says, the war recommenced in South Caro- lina.1 In regard to the number of regiments in the field, the historian was undoubtedly mistaken. Besides Marion's brigade on the Pee Dee, and the troops Pickens and McCall were raising on the Savannah, Sumter had with him upon Greene's return to South Carolina the regiments of Taylor, Lacey, Winn, Bratton, Hill, and Henry Hampton.
Wade Hampton now for the first time appears in the field upon the side of the Whigs. Judge Johnson men- tions him as one of Sumter's officers taken and paroled by the British at Fishing Creek; 2 but this is a mistake. Henry Hampton was then with Sumter, Wade Hampton was not -indeed, as has appeared, more than a month after that battle, that is, on the 21st of September, he declared him- self a loyal subject of his Majesty.3 It is doubtless in allu- sion to this that, on the 2d of April, Richard Hampton writes to John: " For news I give you the following; viz., Bro. Wade has joined Gen1 Sumter and has left his prop- erty in the possession of the British and Tories ; he now fights them hard." Notwithstanding his declaration of loy- alty, it appears, from Johnson's account, that he had been arrested for some cause, and that a party of twelve men were taking him to prison, when, by one of those extraordinary
1 Ramsay's Revolution in So. Ca., vol. II, 227.
2 Johnson's Life of Greene, vol. II, 31.
8 Hist. of So. Ca. in the Revolution, 1775-80 (McCrady), 729.
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actions which characterize the men of that day, he suc- ceeded in seizing the muskets of two of his guard and over- awing the whole body, and by his threats and his known character he effected his escape, having with him the weapons that insured his safety. Considering himself now released from his obligations to the British authorities, he joined Sumter. Johnson narrates this incident as if it had taken place before Sumter's raid, in February, but Richard Hampton's letter of the 2d of April indicates that it was then of a more recent occurrence.1
The case of Wade Hampton was one of many which were now giving great concern to the British authorities, and which were to result in the execution of the unhappy Hayne. Upon the fall of Charlestown many of the mi- litia then in the field, it will be remembered, had accepted the terms of surrender offered them, that is, the same as had been accorded the garrison of the town; viz., that they should be permitted to return to their homes as pris- oners of war on parole. The militia accepting these terms had been those embodied under Richardson and Kershaw in the eastern part of the State, under Williamson and Pickens in the western or Ninety Six District, and under Bull in the Low-Country. Though Bratton, Winn, Lacey, and others had individually served during the siege of Charlestown, the militia of the upper country had not come out. While, therefore, the British held the line from Ninety Six to Camden, and from Camden to Georgetown, few, if any, questions had arisen in regard to the effect of Sir Henry Clinton's proclamation revoking the paroles of
1 Dr. Johnson, in his Traditions, mentions the incident on the author- ity of Colonel Thomas Taylor, but does not give any date. By his account, Wade Hampton was taken prisoner upon some occasion, and was being taken under guard to be placed in a prison ship, when he thus effected his escape.
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the militia who had not actually served in the garrison of the towns, as the militia in the upper country had not been in arms to accept the terms and give their paroles. But when Marion and Harden broke through from the Pee Dee, and Clarke and McCall from the Savannah, and appealed to the Whigs, their former comrades, to arise, the status of these persons became of the greatest importance to both sides. Were they bound by the paroles they had given since Clinton's proclamation annulling the terms upon which they surrendered ? If so, the Whigs could obtain no recruits in the territory they might recover. If not, the British officers saw the people within the lines they had hitherto held ready now to rise and turn upon them. It has been seen how Pickens had hesitated, and how strongly he had been warned by his friend, Captain Ker, a British officer, of the danger of disregarding his parole, and warned of his certain execution in case he should unfortunately again fall into their hands. But, regarding the terms of his sur- render as violated, Pickens had not been deterred, but was now, though " with a halter round his neck," as the phrase was, heroically and successfully fighting with his old com- rades against the faithless enemy. His example had been contagious. Many of the paroled militia were now joining the Whig partisan bands, as Sumter, Marion, and Harden penetrated to the rear of the British lines. Colonel Hayne, a man of great influence, was going through the same trial which had resulted in returning Pickens to the field. Lord Rawdon and Balfour determined that a stop must be put to the movement.
The issue was first made in the case of Captain John Postell, the officer of Marion's brigade who had made the successful raid upon Monck's Corner in January. Captain Postell had been in the garrison of Charlestown during the siege, and had been paroled. His parole, which was simi-
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lar in form to that given in a note to a former volume,1 re- quired him to remain at his plantation in the parish of St. Mark's, in the county of Craven, until exchanged or other- wise released, and pledged him that in the meantime he would not do or cause to be done anything prejudicial to the success of his Majesty's arms, or have intercourse or hold correspondence with his enemies.2 By the terms of the capitulation it had been stipulated that the militia, upon giving these paroles, so long as they observed them, should be allowed to return to their homes, and there to be "secure from being molested in their property by British troops." 3 In violation of this stipulation Postell had been stripped of his property. "My honor is all I have left," he wrote to Marion, " my family has been reduced to beg their bread."4 Considering himself released from the obligations of his parole, Postell had joined Marion and had become one of his most trusted officers. Just before Postell's ex- ploit at Monck's Corner, Marion had come to an agreement with Captain Saunders, commanding the British post at Georgetown, for a partial exchange of prisoners, and at Postell's request Marion sent him with the flag to deliver the prisoners on their side. Postell had sought the mission, hoping to obtain the release of his father, who was a pris- oner in the hands of the British.5 The British refused to recognize the flag because it was accompanied by Postell, seized him, and threw him into the jail at Georgetown as a prisoner who had broken his parole. Marion, indignant at this treatment of his flag, wrote at once to Captain
1 Hist. of So. Ca. in the Revolution, 1775-80 (McCrady), 718.
2 Gibbes's Documentary Hist. (1781-82), 36.
$ Moultrie's Memoirs, vol. II, 100.
4 Gibbes's Documentary Hist. (1781-82), 86.
" James's Life of Marion, 113. The author says that Postell "ob- tained leave to go with a flag," but is not explicit whether he was himself the bearer of it, or merely accompanied it - a point of consequence.
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Saunders, protesting against its violation. Postell, he stated, had been sent by his orders with a flag to effect the exchange of prisoners, to which Saunders had agreed ; he was greatly surprised to find that Saunders not only re- fused to make the exchange, but had violated his flag by taking Postell prisoner, contrary to the laws of nations. " I shall immediately acquaint the commandant at Charles- town," he writes, "and if satisfaction is not given I will take it in every instance that may fall in my power."1 He adds : -
" I have ever used all the officers and men taken by me with hu- pa manity ; but your conduct in closely confining Capt. Clark in a place where he cannot stand up, nor have his length, and not giving him half rations will oblige me to retaliate on the officers and men which
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