USA > South Carolina > The history of South Carolina in the Revolution, 1780-1783 > Part 34
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All of which was more forcibly and tersely expressed in his letter to Marion, when he wrote, "I don't intend to retaliate on the Tory officers ; but on the British." But General Greene did not retaliate at all. For when the first burst of horror and indignation had subsided and reason asserted itself, the difficulties and complications of the case were realized.
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The tragic circumstances of Colonel Hayne's case from its inception to his death, the cruel conditions under which he had given his allegiance to the King, his honorable conduct in adhering to his word under the strongest inducements to have renounced its obligation, his decision at last that he was released from its obligation, and the gallant and brilliant action with which he at once accom- panied that decision, the romantic incidents of his capture, his quiet, gentle, and dignified bearing throughout his im- prisonment and trial and while waiting only the pleasure of his judges as to his doom, his firm and heroic conduct in meeting the ignominious death to which he was devoted, all tended to excite the deepest interest and to call for the most heartfelt sympathy for the noble gentleman who thus died for his country. Colonel Hayne was indeed a martyr ~ to its cause. But his martyrdom was not in the incidental circumstances of his death, however much these appeal to the nobler sentiments of humanity. It was rather that, though fully understanding the consequences of his action, he determined that, the British having themselves broken the term of his compact of allegiance, as he conceived, he would repudiate its bond and take the field, knowing that in doing so he could neither ask for nor expect any quarter if taken. In doing this, like Pickens, Hampton, Postell, and others, he ventured his life not only against the mili- tary but the civil power of the enemy; and dared for his country's cause to die even upon the gibbet.
The striking tragedy of Colonel Hayne's execution not only aroused the sympathies of all engaged in the cause of liberty in this country, but excited almost as much indignation in England. The subject was taken up in the House of Lords in the January following, and made there a party question. In the debate which then took place the Earl of Huntingdon, Lord Rawdon's uncle, in
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answer to the demand for the production of the proceed- ings of the court before which Colonel Hayne had been given such trial as he had, explained that the papers had been thrown overboard previous to the packet being cap- tured that was bringing them to England. His lordship also made this statement as to the singular condition of the military command in South Carolina. He stated that Colonel Balfour was commandant of the town of Charles- town at the time in question, that Lord Rawdon had only a partial command, and that Colonel Gould, who com- manded the three regiments just arrived, was the senior of both. He gave the House this information, he said, not as an argument either in favor of Lord Rawdon or against him, but merely to put the House in possession of the facts.
The Earl of Abingdon bitterly denounced the execution. "It is," said he, " the case of a cruel and barbarous murder of an individual. But what," he continued, "is this cruel and barbarous murder of an individual compared with the cruel and barbarous murders which the whole of the American war has occasioned ? What is this case when compared with that of a noble peer of this House solemnly protesting on the records of the House against the princi- ples of this war, and yet going forth himself, and in his own person, to counteract these principles and to perpetrate such acts as these ?" 1
The Duke of Manchester, commenting upon the fact that the idea of the court of inquiry was an afterthought, suggested subsequently to the intention of bringing
1 Referring to Earl Cornwallis, who, in the House of Lords, opposed the ministerial action against Wilkes and in the case of the American col- onies. (Encyclopædia Britannica.) It is remarkable that both Lords Corn- wallis and Rawdon were at first in support of resistance on the part of the Americans. The language of Lord Rawdon was altogether favorable to the cause of liberty. (Garden's Anecdotes, 253.)
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Hayne to trial in the usual form of a court-martial ; and upon the further fact that after all he was not executed in consequence of the decision of the court of inquiry, but in pursuance of a power in which the officers were vested, declared there must have been something very singular in the case of Hayne, or something precipitate on the part of Lord Rawdon and Colonel Balfour. This was a point he wished to have explained. In answer to this Lord Stor- mont, stating however his opinion with deference as he was no soldier, declared "he had always reckoned it a maxim established upon the most unquestioned authority that an officer having broken his parole who should after- wards fall in the hands of the enemy was deprived by his breach of faith of the advantage of a formal trial, and subjected to be executed instanter."
The Earl of Shelburne (afterwards Marquis of Lans- downe) denied the doctrine. " The noble Lord in the green ribbon," he said, " had advanced a doctrine which to him seemed totally new. He had stated to their lordships that an officer who had broken his parole was liable to be put to death instanter without the form of a trial. This idea he considered as erroneous, and one which ought to be reprobated. He would not, however, dwell upon the subject; a fact which had fallen from his lordship perhaps deserved a more serious consideration. It appeared very plainly from what he had said that in America the power of taking away the lives of the people was delegated by his Majesty to the Commander-in-chief, and by him dele- gated to the next officer in authority, and by him to his inferiors. Sir H. Clinton was the officer vested with the supreme authority in America. He intrusted the power reposed in him to Cornwallis, and he in his turn had trans- ferred it to Lord Rawdon and Colonel Balfour. His lord- ship begged to know by what authority so important a
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jurisdiction over the lives of mankind was thus wantonly delegated from one person to another ? "
The Lord Chancellor, Lord Thurlow, is said to have had a great contempt for his audiences in the House of Peers, and to have reckoned often with daring confidence upon their ignorance. An instance of this is given in the Memoirs of Bishop Watson, in which, with his usual un- scrupulous insolence, Thurlow bore down the bishop, insisting that a quotation by the latter from Grotius was erroneous, when it turned out, in fact, that the bishop was perfectly correct and he was wrong.1 But that was not the first time his lordship had misquoted the same author. It was in this debate that he did so; but here his false quotation was not allowed to pass without exposure. In answer to the Earl of Shelburne he said, "He would now offer a word or two as to the justice of his (Hayne's) execution. He was no soldier, but he fancied he was not totally unequal to the task of comprehending an author whose opinions were universally assented to by all civilized nations ; and, of course, whose writings were deemed the true standard by which persons in military situations were to conduct themselves; he meant that learned man, Grotius, who had written on the law of na- tions, necessarily including the law of war and open hostility which are particularly laid down in that cele- porated work." Here his lordship quoted several pas- lages from that author, and from Cocceius and Vattel, he two last of whom wrote much later than Grotius, in which he said it was clearly laid down that all prisoners, s among common enemies, when taken in battle are at he mercy of their captors, but that a more civilized and efined way of thinking had prevailed by the accepting
1 Lives of the Lord Chancellors (Campbell) vol. VII, 162 ; Anecdotes of nt a he Life of Richard Watson, vol. II, 359.
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surrender at discretion, or upon capitulation which entitled the prisoner to his life and to future release upon condi- tions ; but then it was allowed universally, and asserted with- out reserve, that a prisoner breaking his parole forfeited all title to mercy, and it was only necessary to prove his personal identity to subject him to death instanter.
The absurdity of quoting Grotius, who wrote in 1623, more than a century and a half before, on this novel and anomalous subject, was at once exposed by the Earl of Effingham. This nobleman, after observing that the sum of the Lord Chancellor's information had been that Amer- ica was under martial law; that the same martial law vested prodigious authority in the commanding officers, and that the usual administration of the martial law had been of the most easy and liberal kind, having had no other rule than the appointing a court of inquiry, consisting of three officers of the provincial Loyalists who looked over the prisoners at any time brought before it by the King's forces, and whoever was by this new contrived court de- clared to have broken parole, was immediately ordered for execution ; thus proceeded : -
" If this improvement upon the jus gentium had rested solely on the authority of the noble Lord, I should have left it to refute itself as I think it would have done by its manifest repugnancy to the common rights of mankind, and the consideration of the noble Lord being under no particular professional obligation to render himself master of the subject. But in the present case two of his Majesty's ministers have stepped forth and laid down some doctrines so contrary to whai I take for truth, that I feel myself under an obligation to make some observations upon them. The noble Lord in the green ribbon has asserted that it is a known rule that a prisoner of war having broker his parole has thereby forfeited his life, and is to be executed like : spy without any other form than what may suffice to identify his per son. This I will venture to deny ever to have been laid down in an book of authority or ever practised in civilized countries. The learne Lord indeed in confirming this doctrine has quoted Grotius. I wis
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his lordship had been more explicit, for it is with great diffidence I can oppose my knowledge of Grotius to his lordship, and yet I am clear that Grotius never wrote one word about prisoners upon parole; he never heard of such a thing. It is a very modern civility intro- duced into some countries. And it more resembles what we call bail, than anything else; and whoever runs away from it may be closely confined, but not put to death by any rule I ever heard," etc. 1
The motion for the production of the papers was defeated by a vote of nearly three to one. But the debate serves to show the views taken of the case in England. Lord Rawdon was surprised and mortified to find, on his return to Europe, how generally condemned as unpolitic and un- just was the execution of Colonel Hayne. It is evident that he smarted under reflections which his connection with the case had elicited. Nor is it creditable to him that, in order to avoid his share of the responsibility, he, both in private and public, endeavored to put the blame upon Balfour. When captured at sea by the French fleet and sent to France, he met at Paris a Carolina family with whom he had been previously intimate in Italy, and hear- ing in every society the severity towards Colonel Hayne reprobated, he insinuated, "that contrary to his opinion it had been urged and insisted upon by the commandant of Charlestown."2 His uncle, the Earl of Huntingdon, it will be observed, while declaring that he gave the informa- tion not as an argument either in favor of Lord Rawdon nor against him, but merely to put the House of Lords in possession of the facts, states that he was at the time ranked in command, not only by Colonel Balfour, but by Colonel Gould as well, clearly intimating thereby that his nephew was not responsible in the matter. How this sug- gestion aids Lord Rawdon's reputation will be judged by
1 Parliamentary History, 1781 to 1782, vol. XXII, 963-984 ; Annual Register, 1782, vol. XXV.
2 Garden's Anecdotes, 254.
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those perusing the foregoing pages. An officer receiving a paper drawn by one of his staff at his own suggestion, addressed to him as "Commander-in-chief," can scarcely be heard to deny or qualify his action upon it as such.
So sensitive was his lordship upon the subject, that he made a personal affair of the Duke of Richmond's speech in the House of Lords, in introducing an inquiry in regard to it, and succeeded in obtaining from that nobleman an apology on the floor of the House of Lords, in words dic- tated by himself.1 And yet afterward in a letter from
1 Parliamentary History, supra Garden's Anecdotes, 253: " About this time his lordship's conduct in the affair already alluded to the execution of Colonel Hayne, was mentioned in such a manner as to give great um- brage - sufficient indeed to induce Lord Rawdon to call upon his Grace for an explanation. After several messages through the interference of friends the Duke of Richmond agreed to read such a recantation in the House of Lords as Lord Rawdon should think proper to dictate.
" It has been a matter of doubt among persons of cool and deliberate reflection, whether the peremptory step which his lordship took on this occasion was more advantageous to his character than a thorough inves- tigation of the business might have proved in Parliament." - British Mili- tary Library, London (1799), vol. I, 86. The Duke of Richmond's con- duct upon this occasion, it was said, laid him under very general suspicion of want of courage in not standing to his charge. (Wraxall's Memoirs, vol. II, 499, 500. ) " The Duke of Richmond," says Garden, " called the attention of the House of Lords to the inhuman execution of Colonel Hayne, the particulars of which had been forwarded to him by Mr. John Bowman. Lord Rawdon, arriving in Europe, denied the justice of the charge, threat- ening to call on the Duke for personal satisfaction unless an immediate apology should remove the stain from his injured honor. The Duke knew full well the justice of the charge. He was personally acquainted with Mr. Bowman, had often sought information from him relative to Ameri- can affairs, and had never had any cause to question his veracity ; but his courage at the moment must have been at a low ebb. He hesitated, in- deed, on the inconsistency of his conduct, but ultimately averred 'that he had received his information from one Bowman whom he knew noth- ing about. He was, he confessed, rash in his charge, and solicited par- don for having made it.' " - Garden's Anecdotes, 253. Mr. John Bowman was a highly educated and accomplished gentleman who had recently settled
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which frequent quotations have hitherto been made, he again endeavors to shield himself from the responsibility, upon the plea of his inferiority in rank to Colonel Balfour.
But after all, notwithstanding the intense feeling which this unfortunate affair excited at home, and the indigna- tion with which it was regarded by all the friends of America in Europe, notwithstanding the bitter denuncia- tions with which it has been treated by the historians of America, if a state of war warrants the infliction of death whenever necessary to secure its ultimate object, it can scarcely be questioned that it was a military necessity in this instance. It was not only the case of Colonel Hayne, however pitiful that may appear. It was the vital ques- tion, to the British rule, as to the condition of those in the country of which the Whigs were now rapidly regaining the possession, who had given their paroles or taken pro- tection. Were these persons released from the binding efficacy of the pledges given by them because the Ameri- cans had recovered possession, though temporary it might be, of the territory in which they lived ? If so, every raiding force was a recruiting party to the rebels. It was the practical reversal of Sir Henry Clinton's policy of con- quering America by the Americans. It was conquering the British by the means of these reclaimed subjects. An example was necessary. Postell had been in close con- finement since his capture in January ; but his confinement had not arrested the conduct of others when opportunity presented of resuming their arms.
It must be observed also that Colonel Hayne's execu- tion was not in violation of the cartel agreed upon for the exchange of prisoners, as asserted in General Greene's
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proclamation. The cartel agreed to in May was most general in its terms, and, without specific provision to that effect, must have been construed as relating only to such prisoners as had already been captured on both sides. And so it was construed and acted upon in that negotiated by the commissaries on the 22d of June, which was ex- pressly limited to those taken from the commencement of the war to the 15th of June.1 Colonel Hayne was not cap- tured until the 8th of July, three weeks after, and did not therefore come within its terms. Moreover, the Brit- ish had expressly refused to recognize prisoners of this description as coming within the terms of the cartel. Postell's case, it is true, had been referred for some pur- pose, not disclosed, to General Greene, but he was still held as a close prisoner. Balfour, in a letter to General Greene, dated August 18, points this out in regard to Postell's case, and justly expresses his surprise that a claim could be made for the exchange of Mr. Cooper, who had been taken on the 17th of July.2
Strange to say, in all the bitter controversy in regard to the execution of Colonel Hayne, the British authorities failed to point out that the Americans themselves estab- lished the precedent, justifying the execution of those taken under similar circumstances. Not to dwell upon the general massacre of the prisoners after the battle of King's Mountain, one instance would at least have justi- fied their conduct in Colonel Hayne's case. One Green, taken there, was tried before a drum-head court-martial, - if the court could be dignified even by that name, - upon the charge that he had violated the oath he had taken as an officer to support the government of North Carolina and of the United States by accepting a British commis- sion and fighting on that side at King's Mountain. Some
1 Gibbes's Documentary Hist. (1781-82), 123.
2 Ibid., 128.
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of the British officers remonstrated at the course taken, when Colonel Cleveland, then in command, cut them short, saying, "Gentlemen, you are British officers and shall be treated accordingly - therefore, give your paroles and march off immediately ; the other person is a subject of the State." The prisoner was accordingly condemned to be executed the next morning.1 Fortunately, he escaped during the night, which probably accounts for the over- looking of the case ; but it none the less closes the mouths of Americans who would represent the conduct of the British officers in Hayne's case as without precedent in its barbarity.
The question as to the legality of the proceedings under which Colonel Hayne was executed was a proper one for discussion in the British Parliament, for it was one in- volving the due administration of the law of the king- dom, whether at home or in a foreign country covered for the time by its flag. It was, so to speak, a domes- tic question. But it was not one in which Americans claiming to be citizens of another government could join in discussing. The only question which they had to con- sider was as to the right of the British authorities, be they who they might, to inflict death upon one claiming to be an American citizen. It was in the execution itself, not in the manner in which they proceeded to the execution, that the country at large was interested. It was not con- sistent to repudiate allegiance to the British government and then complain that the prisoner was not tried accord- ing to British laws. Meddling with the discussion upon this point deprives Colonel Hayne of the honor of martyr- dom, to which he was justly entitled. For if his execution was a mere accident of his falling into the hands of cruel
1 Gordon's Am. Revolution, vol. III, 466-467 ; King's Mountain and its Heroes, 853.
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men, who, disregarding their own laws, put him to an unexpected death, however much we may pity the individ- ual, it is, in the end, only our pity which is called for. But if Colonel Hayne, fully aware of his doom, if in the chances of battle he should be taken, nevertheless regarding him- self honorably released from the allegiance he had sub- scribed, determined to face even an ignominious death for the cause of his country, then was he a martyr indeed, and is entitled, not only to our pity, but to our admiration for his heroism. Such, indeed, we submit the case of Colonel Hayne to have been.
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CHAPTER XVIII
1781
GENERAL GREENE had recrossed the Congaree on the night of the 13th of July and taken post on the High Hills of Santee, where with his continentals he went into a camp of rest or of " Repose," as it was called, while Sumter with Marion and Lee made their incursion into the Low-Country.1 Greene himself, however, had not been idle during the repose of his troops. He had been busy appealing to Washington, appealing to Congress, appealing to North Carolina, for assistance and reënforcements. Such of the Pennsylvania line as had reassembled after its mutiny in New Jersey on the night of the 1st of January, and had been recruited, amounting to about one thousand men, had been ordered by Washington about the middle of February
1 The last reference to General Greene's connection with the firm of Barnabas Deane & Co. is found in a letter to Colonel Wadsworth written from the "High Hills of Santee " on July 18, 1781, in which he asks : "How goes on our commerce ? Please to give me an account by the Table [i.e. in cipher] as letters are frequently intercepted." In this letter he gives a humorous sketch of the Southern campaign - the only touch of humor found in his letters : "Our army has been frequently beaten, and like the stock-fish grows the better for it. . .. I had a letter some time since from Mr. John Turnbull (M'Fingal) wherein he asserts that with all my talents for war I am deficient in the great art of making a timely retreat. I hope I have convinced the world to the contrary for there are few gen- erals that have run oftener or more lustily than I have done ; but I have taken care not to run too far, and commonly have run as fast forward as backward to convince our enemy that we were like a crab that could run either way." - Magazine of American History (Lamb), vol. XII, 27.
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to join the Southern army, and a detachment under the Marquis de Lafayette had also been directed to proceed thither. But these had been detained in Virginia upon the apprehension of the invasion of that State, and had of course been prevented from coming farther when Cornwallis had moved again towards Virginia, advancing from Wilming- ton, to which he had retreated after the battle of Guilford Court-house. But Lafayette, to whom the defence of Virginia had now been committed, having reason to believe that Cornwallis was about to take shipping to New York, had authorized General Wayne in command of the Penn- sylvania line to resume his original design of marching to the relief of Greene. The latter general was therefore anxiously awaiting the arrival of this reenforcement, when he learned that Wayne's march had been again counter- manded, as the British transports had been recalled, and that the fleet had proceeded up to Yorktown. This was his first disappointment at this time. The next was in the loss of a body of 150 troops raised by Colonel Jackson in Georgia, the whole of whom were taken with smallpox nearly at the same time, fully 50 dying, and the rest being too much reduced by the consequences of the disease to be in a state for service. Then, while he was retreating from Ninety Six, he had been assured that he might rely for support on the militia of Mecklenburg and Rowan counties of North Carolina, and 3500 men had been prom- ised him ; but when he had halted in his retreat and turned again towards the enemy, the martial ardor of these coun- ties had in a measure at least subsided upon the removal of the immediate danger of their invasion, and less than 500 now joined him. So, too, upon his appeal to Shelby and Sevier, the heroes of the year before, they had promised him a reenforcement of 700 of their select followers; and with these they had actually advanced far on their way to
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