USA > South Carolina > The history of South Carolina in the Revolution, 1780-1783 > Part 33
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An American staff officer, it is said, then a prisoner on parole, present at the court, stated that the proceedings be- fore the board were the most summary imaginable, and the proofs confined exclusively to the fact that Colonel Hayne had taken protection, and afterwards resumed his arms. An address made by Colonel Hayne to his troops, breath- ing, as this officer declares, the noblest sentiments of patriotism and humanity, and the testimony of the officer who took him, were almost the only evidence offered in the case.1 The address referred to, made by him to his officers, was that made, it is said, when at the solicitation of his neighbors and the inhabitants generally of the dis- trict, to resume a hostile position and become their leader, he at last consented to do so. It contained this honorable and open declaration, "That he could only be induced to
1 Article entitled "Execution of Colonel Isaac Hayne," Southern Review, Charleston, 1828, vol. I, 92. The name of the staff officer quoted is not mentioned.
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comply with their wishes by obtaining a solemn promise from all who were to serve under him that an immediate stop should be put to every unnecessary severity ; a de- sideratum the more to be insisted upon as he was resolved that exemplary punishment should be inflicted on every individual who should indulge in pillage or commit any act of inhumanity against his foe." When this paper was presented to Major Mckenzie,1 who sat as president of the tribunal, it is said that, with great expression of sensibility, he requested the prisoner "to retain it till he was brought before the court-martial that was to determine his fate," assuring him "that the present court were only directed to inquire whether or not he acknowledged himself to be the individual who had taken protection." 2
It appears, therefore, that the court and the prisoner alike supposed that this tribunal was in fact as well as in name a mere court of inquiry, making a preliminary examina- tion upon what further proceedings were to be had. But in this they were both mistaken-if not intentionally mis- led. Lord Rawdon declares that it was held at his sug- gestion, and that his purpose was to gain time. But his conduct on the occasion will scarcely bear out this (his) recollection thirty years after. The court sat on Friday the 27th, when it had Colonel Hayne before it, and ap- parently again on Saturday, probably to consult. What it actually did determine is not known, for Lord Rawdon took the record of its proceedings with him when he sailed shortly after for Europe, and, being captured at sea, he threw it overboard. If the story be true that the presi- dent of the court of inquiry returned to Colonel Hayne
1 Probably Andrew Mckenzie, mentioned in list No. 3 of the Confisca- tion Acts ( Statutes of So. Ca., vol. VI, 631), i.e. as one who had accepted a commission in the Royal Militia (Ibid., vol. IV, 519).
2 Garden's Anecdotes of the Revolution, 252. The author regrets ex- ceedingly that no copy of this address can now be found.
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his address to his regiment, that he might present it be- fore the court which would try him-and Colonel Hayne's possession of the paper after appearing before the court of inquiry is strong corroboration that it was so -it is scarcely probable that the finding of the court was suffi- cient of itself to warrant the execution which followed. And indeed this was admitted by Rawdon and Balfour as will directly appear. So far from availing himself of the opportunity for delay which might easily have been ob- tained by allowing the investigation which Lord Rawdon declares his purpose was to have made, on Sunday, the day after the court had apparently adjourned, he promptly joined Balfour in the following judgment : -
" To MR. HAYNE IN THE PROVOST PRISON
" Memorandum " Sunday 29 July 1781
" The Adjutant of the town will be so good as to go to Colonel Hayne in Provost Prison and inform him that in consequence of the court of enquiry held yesterday and the preceding evening Lord Rawdon and the commandant Lieutenant Colonel Nisbet Balfour have resolved upon his execution on Tuesday the thirty-first instant at six o'clock, for hav- ing been found under arms raising a regiment to oppose the British government, though he had become a subject and had accepted the protection of that government after the reduction of Charlestown."
Availing himself of the permission to be represented by counsel, as he supposed before a court yet to sit, Colonel Hayne had engaged the services of Mr. John Colcock a lawyer then practising in the town. Upon learning of this order Mr. Colcock immediately prepared a written opinion denying the authority of these officers thus to pass upon the life or death of the accused. He advised (1) that in the notice given of an examination before a court of inquiry there was not, even according to the rules of martial law, a sufficient certainty nor any express accusa- tion which might be the object of the court's inquiry or
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of the accused's defence; (2) that no enemy can be sen- tenced to death in consequence of any military article, or any other martial process, without a previous trial, except spies, who by the articles of war were expressly debarred from that right; (3) that no subject could or ought to be deprived of his life, liberty, or fortune unless by the award of his peers ; that there was no law which could authorize a judgment like that which these officers had taken upon themselves to pronounce; that every man was deemed in- nocent until his guilt was proved; that being taken in arms did not argue criminality so far as to hinder the cul- prit from making his defence, either by proving a commis- sion or upon any other ground; that many of those who had taken up arms had been acquitted on such proofs. (4) "In consideration of the principles above adduced," Mr. Colcock concluded, "I am positively of opinion that taking you in the light of an enemy (not of a spy), the process carried on against you is not lawful; but if you are to be considered as a subject, such proceedings mili- tate against and are diametrically contrary to all laws."
This opinion Colonel Hayne sent to Lord Rawdon and Colonel Balfour, with an earnest but dignified remon- strance against this summary proceeding. As already quoted, he declared that he had entertained no idea that he was before a court for trial when taken before the court of inquiry. He admitted that in case of spies a court of inquiry is all that can be necessary, because the simple fact whether the person is or is not a spy is all that is to be ascertained; but that no such accusation as that had been made against him.
"Judge then, my Lord and Sir," he urged, " of the astonishment I must have been in when I found that they had drawn me by surprise into a procedure tending to judgment without knowing it to be such, and deprived me of the ability of making a legal defence, which it
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would have been very easy for me to have done, founded both in law and in fact; when I saw myself destitute of the assistance of counsel or of witnesses; and when they abruptly informed me that after the procedure of the court I had been condemned to die, and that in a few days. Immediately upon receiving this notice I sent for the lawyer whom I had originally chosen for my counsel. I here inclose his opinion concerning the legality of the process against me; and I beg that I may be permitted to prefer myself to him. I can assure you with the utmost truth that I both have and had many reasons to urge in my defence if you will grant me the favor of a regular trial; if not (which I cannot however suppose from your justice and equity) I earnestly entreat that my execution may be deferred that I may at least take farewell of my children and prepare myself for the dreadful change. I hope that you will return me a speedy answer," etc.
The last request of Colonel Hayne was complied with at one o'clock on Monday, the 30th. Major Fraser brought him the fatal answer. It was this : -
"I have to inform you that your execution is not ordered in con- sequence of any sentence from a court of enquiry, but by virtue of the authority with which the Commander-in-chief in South Carolina and the commanding officer in Charlestown are invested. And their resolves on the subject are unchangeable."
Here it will be observed that Lord Rawdon allows him- self to be styled officially Commander-in-chief in South Carolina, repudiates the court which he suggested, and promptly joins Colonel Balfour, the commanding officer in Charlestown, in assuming the responsibility of the exe- cution, upon which he declared they were inexorably determined. The terseness, vigor, and temper of this paper is scarcely compatible with the tenderness he appears at first to have exhibited to Mrs. Peronneau, and for which he subsequently claimed the credit.
Colonel Hayne, upon receiving this curt reply, appealed again to Major Fraser that he would seriously entreat these officers to grant a respite that he might have time to send for his children, and take of them the last farewell. This ap-
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peal was promptly and sternly refused. At three o'clock the town adjutant, Mr. Cooper, brought him for answer that his request was rejected; and on Tuesday, the 31st, at one o'clock in the morning, the deputy provost marshal brought him word, says Hayne, "that it was time for me to pre- pare for death, as he had just received orders to that effect, and that I was to leave my apartment at five o'clock."
In less than half an hour, however, Major Fraser came in and delivered the following message: -
"Colonel Hayne, I am to acquaint you that in consequence of a petition signed by Governor Bull and many more, as also your prayer of yesterday and the humane treatment shown by you to the British prisoners who fell into your hands, you are respited for forty-eight hours."
Colonel Hayne thanked the officer for the respite, as affording him the opportunity of seeing his children once more, which he so much desired. The major had gone but a few moments when he returned to say that he had forgot part of his message; this was, says Hayne, that if General Greene "should offer to expostulate in my favor with the commanding officer, from that instant the respite would cease, and I should be ordered for immediate execution." 1
During the solemn period of his reprieve which ensued, the unfortunate gentleman bore himself with dignity and composure, and on his last evening declared that " he felt no more alarmed at death than at any other occurrence which is necessary and unavoidable." In the meanwhile the most earnest efforts had been made to move the two officers upon whom depended his life or death. Mrs. Peronneau, his sister-in-law, accompanied by his children, waited on Lord Rawdon in the great parlor of the Brewton
1 Ramsay's Revolution in So. Ca., vol. II, 511, 517; Gibbes's Docu- mentary Hist. (1781-82), 111-112.
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mansion, and on their bended knees implored him to spare their father and brother.1 Lieutenant-Governor Bull, who had recently returned from England, and a great number of inhabitants, both Loyalists and Americans, interceded for his life.2 There was one exception to this generous effort, and that was in the case of Sir Egerton Leigh, who, having been absent since the commencement of the war, and who for his conduct in the preceding trou- bles had received his knighthood in 1772, had now returned on the fleet which brought the timely reënforce- ment to the British cause in June.3 Lord Rawdon gives this statement of the origin and failure of the appeal. He states that, in compliance with his wishes, two gentlemen of known and just influence undertook to try whether a petition for pardon might not be procured from a respec- table number of Loyalists. That they first applied to Lieu- tenant-Governor Bull, who consented to sign the petition provided the attorney-general, Sir Egerton Leigh, would do so. The answer of Sir Egerton Leigh was that he would burn his hand off rather than do an act so injurious to the king's service. That Lieutenant-Governor Bull's conditional prom- ise of course fell to the ground, though he subsequently, from some dupery practised upon his age, joined his name with those of certain of the most active and avowed partisans of the American cause.4 A very different account of the affair was given upon the appearance of this state- ment by his lordship. It is that Governor Bull, who was in a very feeble condition, suffering from a chronic malady which had afflicted him for many years, caused himself to
1 Memoirs of the War of 1776 (Lee), 455.
2 Ramsay's Revolution in So. Ca., vol. 282.
8 For the career and character of Sir Egerton Leigh, see Hist. of So. Ca. under Roy. Gov. (McCrady), 471, et seq.
* Memoirs of the War of 1776 (Lee), Appendix, 617.
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be carried in a litter to the quarters of Lord Rawdon, per- sonally to intercede for the pardon of Colonel Hayne, but that on his return home the dejection of his countenance too plainly spoke the ill success of his influence, and that he exclaimed, "The die is cast, the unfortunate prisoner must suffer, Lord Rawdon is inexorable. "1 Both of these partic- ular and circumstantial statements were made many years after the event. Neither, therefore, is entitled to greater weight than the circumstances better established warrant. Judged in this way, Lord Rawdon's account cannot be accepted. A matter of small consequence, except that it furnishes somewhat of a test of the accuracy of his lord- ship's memory in connection with these events, is the fact that he speaks of Sir Egerton Leigh as attorney-general, as if he then held that office; when in fact he did not. James Simpson, the lieutenant of police under the military government, was at that time the attorney-gen- eral of the province. But besides the weight of authority against this story, - besides the fact that, though feeble in health, Governor Bull, who, as it has been remarked, had himself but recently returned from Europe, to which it may be added he soon again went, and lived there for ten years, was by no means so old a man as to have lost the full possession of mind and judgment, being at this time not more than seventy years of age, -the intrinsic evidence is clearly against it. Lord Rawdon's statement of his con- duct is itself inconsistent with it and is contradicted by the record. He denies that he had authority over Colonel Balfour, and claims that he suggested the court of inquiry to gain time. But the record shows that immediately upon the adjournment of the court, Colonel Hayne is informed by the town major of the sentence of execution "by virtue of the authority with which the Commander-in-
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1 Execution of Colonel Hayne, Southern Review, vol. I, 103, 1828.
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chief and the commanding officer in Charleston are in- vested." He represents that he was instigating the petition for mercy while his adjutant informs the prisoner that the resolutions of the two officers "on this subject are fixed and unchangeable." He represents that Governor Bull from old age was duped into signing a petition which all other Loyalists refused to do ; and yet his adjutant is instructed to inform the prisoner "that in consequence of a petition signed by Governor Bull, and many more," he is granted a respite. His lordship is thus contradicted in every particular ; his denials and explanation fix all the more positively the responsibility for the execution.
At three o'clock in the morning of August 1, Mr. Cooper, the town adjutant, came in and read the following written message, "Lord Rawdon and Colonel Balfour have con- sented to grant to Mr. Hayne a respite for forty-eight hours." His answer was that he thanked them. Colonel Hayne made one more request, and that was that his death might be that of a soldier; but this was not granted, though it appears that he was not informed that it would not be. During his respite he was now allowed to see his children and his friends ; and his few remaining hours were spent in their society and in the preparation of the state- ment and correspondence from which these facts are taken.
On the morning of the fatal day, the 4th of August, on receiving his summons to proceed to the place of execu- tion, he delivered the statement and paper he had prepared to his oldest son, a youth of about thirteen years of age. " Present," said he, " these papers to Mrs. Edwards with my request that she should forward them to her brother
in Congress. You will next repair to the place of execution, receive my body, and see it decently interred among my forefathers." The father and son then took a final leave. The colonel's arms were pinioned, and a guard placed
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round his person. The procession moved from the Ex- change- now the old Post-office, at the foot of Broad Street - in the forenoon of the 4th of August. The streets were crowded with thousands of spectators. Colonel Hayne walked to the place of execution with such firmness, com- posure, and dignity as to awaken the compassion and to command the respect of all. When the barrier of the town -the town gates 1- was passed, the gibbet appeared in sight. To this moment he had hoped that his last request as to the mode of his execution would have been granted, and when he saw the instrument of ignominious death, for a moment he paused, but immediately recovering his wonted firmness, moved forward. As he did so a friend whispered his confidence " that he would exhibit an example of the manner in which an American can die." To this he answered with modesty and tranquillity, "I will endeavor to do so." Neither arrogating superior firmness nor betray- ing weakness, he ascended the cart, unsupported and unappalled. Upon some movement of the executioner, Colonel Hayne inquired what he wanted, and upon being informed that he wished to pull the cap over his eyes, the colonel replied, "I will save you that trouble," and adjusted it himself. Then, asked whether he wished to say anything, he answered, "I will only take leave of my friends and be ready." He then affectionately shook hands with three gentlemen, recommending his children to their care, and gave the signal for the cart to move.2
1 Mr. Charles Fraser, in his Reminiscences, p. 22, writing in 1854, says, "I remember also two large brick pillars which stood in King Street between George and Liberty, the history of which I do not know, but remember they were town gates." Tradition holds that the place of execution was somewhere near where Pitt Street now reaches Vander Horst Street in Charleston.
2 Ramsay's Revolution in So. Ca., vol. II, 282-284 ; Memoirs of the War of 1776 (Lee), 452-456.
" After the execution his young son was permitted to carry his father's
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The execution of Colonel Hayne aroused the utmost indignation throughout the American camp. The informa- tion of it was received by General Greene in a letter from Colonel Harden on the 10th of August, nearly a week after it had taken place. There had been charges and counter charges of ill treatment of prisoners passing between Marion and Balfour for some time.1 Marion, for injuries which he had received, had already vowed retalia- tion; and Colonel Hayne, being an officer of Harden's com- mand and therefore under Marion, Greene was anxious lest he should proceed at once to extremities in avenging his death.2 Fortunately the messenger that brought the letter of Harden could not find Marion, and so took it at once to Greene, who was at the High Hills of Santee. The general immediately wrote to Marion to withhold action on his part, and informing him of the course he proposed to pur- sue. "You will see by Colonel Harden's letter," he wrote, " that the enemy have hanged Colonel Hayne ; don't take any measure in the matter towards retaliation, for I don't intend to retaliate on the Tory officers, but the British." He informed Marion of his intention to demand the reasons of the colonel's being put to death, and if they were unsatis- factory, as he was sure they would be, and if they refused to make satisfaction, to publish his intention of giving no quarter to British officers of any rank that might fall into his hands.3 He wrote accordingly to Colonel Balfour, who replied that " the execution of Colonel Hayne took place by the joint order of Lord Rawdon and himself ; but in
body and inter it at his plantation at Ponper (Pon Pon), which was done on Sunday evening last 9th." New Jersey Gazette, September 26 and October 10. Moore's Diary, vol. II, 468.
1 Moultrie's Memoirs, vol. II, 172.
2 Johnson's Life of Greene, vol. II, 189.
8 Gibbes's Documentary Hist. (1781-82), 125 ; Johnson's Life of Greene, vol. II, 519.
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consequence of the most explicit directions of Lord Corn- wallis ' to put to death all those who should be found in arms after being at their own request received as subjects since the capitulation of Charlestown, and the clear con- quest of the Province in the summer of 1780, more especially such as have accepted of commissions or might distinguish themselves in inducing a revolt of this country.' To his lordship therefore as being answerable for the meas- ure the appeal will more properly be made." 1 General Greene wrote to Lord Cornwallis, but it does not appear that his lordship ever answered the letter addressed to him upon the subject.2 The sentiment of the army was impa- tient for immediate retaliation. Without a knowledge of the resolution of General Greene or of his correspondence, and surprised at his supposed hesitation, the officers of his army, on the 20th of August, addressed him a memorial, which' was in the handwriting of Colonel Williams, urging retaliation, professing their consciousness of the danger to which it exposed them, and their readiness to encounter it. At the head of their list of self-devoted soldiers was the name of Isaac Huger; while William Washington's signing for himself and his officers closed it. The only known name of the army not upon it was that of Colonel Lee, and in justice to his reputation, says Johnson, it is proper to remark that he had for some days previous been detached to the banks of the Congaree.3
On the 26th General Greene issued the following procla- mation : 4-
" Whereas Colonel Isaac Hayne commanding a Regiment of Militia in the service of the United States was taken prisoner by a party of
1 Ramsay's Revolution in So. Ca., vol. II, 520 ; Memoirs of War of 1776 (Lee), 457 ; Gibbes's Documentary Hist. (1781-82), 133.
2 Johnson's Life of Greene, vol. II, 193.
8 Ibid, 192-193.
4 Ibid, 190, 191.
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British troops, and after a rigorous detention in the poorest prison at Charlestown was condemned and executed on the 4th of this month in the most cruel and unjustifiable manner, in open violation of the cartel agreed upon between the two armies for the release and exchange of all prisoners of war ; and it being no less the duty than the inclina- tion of the army to resent every violence offered to the good citizens of America, to discountenance all those distinctions they have endeavored to establish in making a difference between the various orders of men found under arms for the support of the independence of the United States; and further considering that these violences are committed with a view of terrifying the good people, and by that means preventing them from acting in conformity with their political interest and private inclinations; and that this method of trying and punishing in consequence of those distinctions is no less opposite to the spirit of the British, than it is inclusive of an unwarrantable infringe- ment of all the laws of humanity, and the rights of the free citizens of the United States.
" From these considerations I have thought proper to issue the present proclamation expressly to declare that it is my intention to make reprisals for all such inhuman insults as often as they take place. And whereas the enemy seem willing to expose the small number of the deceived and seduced inhabitants who are attached to their interest if they can but find an opportunity of sacrificing the great number who have stood forth in the defence of our cause, I further declare that it is my intention to take the officers of the regular forces and not the inhabitants who have joined their army for the objects of my reprisal. But while I am determined to resent every insult that may be offered to the United States for having maintained our independence, I cannot but lament the necessity I am under of having recourse to measures so extremely wounding to the sentiments of humanity, and so contrary to the principles on which I wish to conduct the war. Given," etc.
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