Memoirs of the War in the Southern Department, Volume Two
Henry Lee

CHAPTER XXXII.

THE period of tranquillity, and of rest, still continued in the camp of Greene, undisturbed by the din of war.

Worn down as were the troops, nothing could be more comfortable than was this interval of peace; and its enjoyment was not less grateful than universal, with the single exception of him who most required and most deserved it. Greene’s anxious mind and faithful heart rejected participation in the comfort himself had given.

Virginia was overpowed by the foe; North Carolina agitated by intestine feuds, promoted by the countenance and excitement of the British garrison still possessing Wilmington; and a portion of the two southern states, with their respective metropolis, in the hands of the enemy, to be wrested from him only by battle.

With his small means, to uphold Virginia, to restore North Carolina, and confine the British force in South Carolina and Georgia, to Charleston and Savannah, called for unceasing efforts of mind and body. He gave both without reserve; and finally determined, first to liberate North Carolina, by carrying the garrison of Wilmington; then to pass into the enemy’s country south of the Congaree, and compel him to give it up; afterwards to hasten to Virginia with the elite of his force, uniting to it the army of La Fayette, and once more to face lord Cornwallis. In pursuance of these arrangements, he gave orders on the 2d to lieutenant colonel Lee, to hold himself in readiness, with his legion, Kirkwood’s Delawares, and Handy’s Marylanders. To prevent suspicion of his intention, Washington, with his cavalry, was directed to pass the Wateree; Marion, with his militia, was detached to the country on the Cambahee, which river makes the southern boundary of the Charleston district; and other demonstrations were made, indicating the design of entering into the territory occupied by the British. The general aimed his blow against Wilmington, upon the persuasion that the enterprise could not fail, if concealed to the moment of execution; and this he deemed practicable from its distant situation, in itself sufficient to lull the vigilance of the garrison; from the sultry season, forbidding military effort; from the attachment of the country through which the course selected for the march passed; and from the facility with which that attachment might be applied to subserve the object. Minute intelligence respecting the enemy and his defences, as well as boats for the passage of the Cape Fear river, remained to be procured before the expedition could commence. Lee despatched captain Rudolph, with a small party from the legion infantry, to acquire the one and to collect the other.

This officer quitting camp in the night, soon reached the pine barrens; and continuing his course through the woods to the Pedee, passed that river and approached with celerity the country south of the Cape Fear. Concealing himself in the friendly family to which he was introduced, he engaged, with his usual diligence and caution, in the execution of his mission. So favorable was his report, as to confirm the sanguine expectations before entertained of complete success. Boats, though chiefly canoes, were procurable in sufficient number to pass the infantry, and the horse could swim. Major Craig still commanded the British garrison; an officer well qualified for the trust, being circumspect as well as brave; but his garrison consisted only of three hundred men, many of them in the hospital, and the whole inadequate to man his extensive works. With good reason, therefore, was it concluded, that a concealed and sudden approach was alone necessary to accomplish the object. The day was fixed for the march of Lee and his final orders were made out. His movement was disguised by the ostensible pretext of hastening to secure a convoy, given out to be on its way from Virginia, which might be taken or destroyed by the loyalists of North Carolina, when passing through their neighborhood: in concurrence with which pretence, Lee was ordered to proceed in the direction of Cambden until he reached the course carrying him through the pine barren into the tract of country inhabited by well affected citizens. At this period information was received from general Washington, indicating the probability that the French West India fleet would visit our coast during the autumn, and intimating the propriety of being prepared in every quarter for instant co-operation; as its place of arrival was uncertain, and its continuance with us would be necessarily short. In consequence of this information, general Greene changed his plan, believing it most eligible to devote his means towards the accomplishment of the immediate liberation of South Carolina and Georgia; persuaded that as soon as the British general should be apprized of the probability of a visit from the French fleet, the garrison would be withdrawn from Wilmington, and thus the state of North Carolina would be relieved, without risk of repulse, or loss of life. This change in measures, too, was extremely agreeable to governor Rutledge, just returned from the North to resume the duties of his station, delighted with the prospect of seeing his state complely freed by the expected naval assistance, and desirous that the force of Greene should be held for that end primarily.

The detachment under Lee, prepared for service, was discharged; and captain Rudolph directed to return, holding nevertheless secret his visit to Cape Fear.

General Greene, though induced to depart from the minor object in his plan of operations, adhered to the general system; believing it the wiser policy to depend as little as possible on the aid of friends.

Repeating his orders to the marquis La Fayette, urging his unvarying adherence to the most cautious conduct, and communicating his intention of hastening to his support, as soon as the state of affairs in South Carolina would permit,—he now turned his entire attention to the British army, still encamped on the south of the Congaree, between Motte’s and the Santee.

The season yet continued extremely hot; but our wounded were recovered, our sick restored to health, and the month of August wasting away. Orders were issued preparatory to movement, and on the 21st the American general decamped from the benign hills of Santee,[note 46] for the avowed purpose of seeking his enemy. Lieutenant colonel Cruger joined at Orangeburgh, soon after Greene, (finding Rawdon unassailable with hope of success) had retired from its vicinity. Lord Rawdon having accomplished the evacuation of Ninety-Six, removed the loyalists of that quarter within the British lines; and concentrating his force at Orangeburgh, upon general Greene’s retirement to his summer quarters, relinquished the command of the army to lieutenant colonel Stuart, and returned to Charleston, with the view of embarking for England,—long intended, but heretofore delayed by the critical posture of affairs.

Stuart did not establish a post, as was expected, at Orangeburgh; but moving his whole force towards the Santee, sat down near the confluence of its two branches, about fifteen miles from his adversary, on the opposite side of that river.

Previous to the breaking up from the High Hills of Santee, an occurrence had taken place in Charleston which deeply affected the feelings of the American general and army. The affair would probably have led to a war of extermination, had not the fast approach of peace arrested the progress of a system, deliberately adopted by Greene, and ardently maintained by every individual of his army.

Isaac Hayne,[note 47] a highly respectable citizen of South Carolina, had taken part with his country from the commencement of the war, and served as a private in the militia during the siege of Charleston. After the surrender of that place, Hayne returned to his seat west of the Edisto, under the protection of the fourth
article of capitulation. “The militia now in the garrison,” says the answer to that article, “shall be permitted to return to their respective homes as prisoners on parole; which parole, as long as they observe it, shall secure them from being molested in their property.”

We have before mentioned the extraordinary proclamation of sir Henry Clinton, which ordered all our militia prisoners on parole, not taken by capitulation, or in confinement, at the surrendering of Lincoln, to become British subjects, or return instantly to the commandant of Charleston. Although the prisoners taken at the surrender of that city were excepted in the proclamation, the popularity and patriotism of Hayne notwithstanding marked him as the first victim of its tyranny.

Colonel Ballingall, of the royal militia in the district of Hayne’s residence, waited on him, from personal respect, and communicated the orders he had received. Hayne asserted his inviolability under the capitulation of Charleston; represented that the small-pox was then raging in his family; that all his children were ill with the disease; that one of them had already died, and his wife was on the verge of dissolution. Finding the remonstrance unavailing, he declared to Ballingall that no human force should remove him from the side of his dying wife. A discussion followed, which terminated in a written stipulation, by which Hayne engaged to “demean himself as a British subject so long as that country should be covered by the British army.”

In a civil war no citizen should expect or desire neutrality. Whoever attempts to place himself in that condition misunderstands human nature, and becomes entangled in toils always dangerous—often fatal. By endeavoring to acquire, with the most virtuous motive, a temporary neutrality, Hayne was unwisely led into a compact which terminated in his ruin.

Pursuing his first object, the care of his sick wife and children, Hayne repaired to Charleston, presented himself to brigadier Patterson with the written agreement of Ballingall, and solicited permission to return home. This indulgence, he presumed, could not be denied, being consistent with his late compact and his view in executing it. The request, however, was peremptorily refused; and Hayne was told, that he “must either become a British subject, or submit to close confinement.” The latter alternative was most agreeable to his inclination; but that tender devotion to his family, which had induced him to repair to Charleston, urged his acceptance of the former. To his friend. Dr. Ramsay, who was then a prisoner with the enemy, he communicated the conflicting emotions of his mind.[note 48] Tranquillized by the interview, he returned to the commandant, and completed his error by a formal acknowledgment of allegiance to the British king—openly excepting, however, to the clause which required his support of government with arms. Patterson the commandant, and Simpson the intendant of police, assured him, that such service would never be required; and added, “when the regular forces cannot defend the country without the aid of its inhabitants, it will be high time for the royal army to quit it.” Thus this amiable citizen proceeded from delusion to delusion, until he placed himself in a fallacious security, which subsequent incidents turned to his destruction.

Hayne hastened to his family, happy in the expectation of preserving it through the prevailing pestilence. But in this hope he was sorely disappointed; for his wife and a second child soon fell victims to the fatal malady. These afflictions did not limit his misfortunes: inasmuch as he was interdicted from enjoying even the political quietude he had attempted to secure. He was occasionally required to bear arms in the regal service; and, uniformly refusing to obey, on the ground of his exception at the time of subscribing the declaration of allegiance, he was threatened with close confinement.

In this situation Mr. Hayne was found when Greene had forced the enemy from the upper country, and restored to the Union the whole of Carolina east of the Santee and north of the Congaree. A detachment of Marion’s militia under colonel Harden, passing to the west of the Edisto for the protection of their own homes, reached the neighborhood of Hayne. Well knowing his worth and influence, they were extremely anxious to procure his aid. Paul Hamilton,[note 49] one of this party, and an intimate friend of Hayne, called on him to solicit co-operation. Hayne frankly stated the change which had taken place in his political condition; and, believing himself bound by the declaration of allegiance, refused to concur with his friends in supporting a cause the success of which was the ardent wish of his heart. Hamilton then asked the accommodation of a few horses, in which resource Hayne was known to abound. Hayne refused the request; and informed his friend, that the moment he heard of Harden’s approach he ordered all his horses to be removed, lest assistance might be obtained in violation of his plighted faith. Yet he assured Hamilton, that whenever he should find the royal authority unable to afford its promised protection, he should consider himself absolved from the extorted allegiance, and would with joy enrol himself with the defenders of his country.

Thus did Hayne scrupulously adhere to a contract, which was never obligatory,—having been coerced by the duress of power, and in palpable violation of the capitulation of Charleston.

Soon after this occurrence, the British were driven below the Edisto; and nearly the whole country between that river and the Stono inlet fell under the protection of the American arms. Every person in the recovered country believed himself released from those obligations, which the late condition of affairs had imposed: for it was justly thought that the allegiance due to a conqueror ceased with his expulsion from the subdued territory. Under this correct impression, Hayne with many others repaired to the American camp. His merit attracted immediate attention; and the militia of his district, by an election in camp, honored him with the command of a regiment.

Taking the field immediately, colonel Hayne conducted (in the month of July), an expedition into the enemy’s territory. Some of his mounted militia penetrated the neck of Charleston, and, near the quarterhouse, captured general Williamson; who had been as active in supporting the royal authority since the surrender of Lincoln, as he had been firm and influential in opposing it prior to that event. Lieutenant colonel Balfour, successor of brigadier Patterson, put his cavalry in motion to recover Williamson. This detachment fell suddenly on the camp of Hayne; but was handsomely received and repelled by colonel Harden, who did not deem it prudent to push his success by pursuit.[note 50] Colonel Hayne, (attended by his second, lieutenant colonel M’Lachlin, and a small guard,) had unfortunately gone to breakfast with a friend, about two miles from camp. The house was on the Charleston road; and the negligent guard having left its post in search of fruit,[note 51] colonel Hayne was unapprised of the enemy’s approach until he saw them a few rods from the door. Being very active and resolute, he pushed for his horse, mounted, and forced his way through the foe. To pass a fence in his route, he put spur to his horse, who unfortunately fell in leaping, and the entangled rider was overtaken by his pursuers. M’Lachlin, being cut off from his horse, fell sword in hand, bravely contending against the surrounding enemy.

Colonel Hayne was conveyed to Charleston, and lodged in the prison of the provost. The purity of the prisoner’s character, and his acknowledged kindness to the unfortunate in his power, plead against the severity which the commandant was disposed to exercise: nevertheless the most rigorous course was pursued with relentless pertinacity.

Soon after he was confined in the provost, colonel Hayne received an official letter from the town major, stating that “a board of general officers would assemble the next day, for his trial.” In the evening of the following day, the same officer informed him, that “instead of a council of general officers, a court of inquiry would be held to determine in what view he ought to be considered; and that he should be allowed pen, ink and paper, and counsel.” On the 29th of July, two days after this intelligence, the town major directed his adjutant to acquaint colonel Hayne, “that in consequence of the court of inquiry, held as directed, lord Rawdon and colonel Balfour have resolved on his execution, on Tuesday, the 31st instant, at six o’clock; for having been found under arms, and employed in raising a regiment to oppose the British government, after he had become a subject and accepted the protection of government at the reduction of Charleston.”

The prisoner, now for the first time informed of the charge exhibited against him, addressed the following letter to the two British officers, who were about to imbrue their hands in his blood.

To lord Rawdon and colonel Balfour.

MY LORD AND SIR,

On Thursday morning I had the honor of receiving a letter from major Frazer, by which he informed me, that a council of general officers would be assembled the next day for my trial; and on the evening of the same day, I received another letter from the same officer, acquainting me, that instead of that, a court of inquiry would sit for the purpose of deciding under what point of view I ought to be considered. I was also told, that any person whom I should appoint, would be permitted to accompany me as my counsel. Having never entertained any other idea of a court of inquiry, or heard of any other being formed of it, than of its serving merely to precede a council of war, or some other tribunal, for examining the circumstances more fully, except in the case of a spy; and Mr. Jarvis, lieutenant marshal to the provost, not having succeeded in finding the person who had been named for my counsel, I did not take the pains to summon any witnesses, though it would have been in my power to have produced many; and I presented myself before the court without any assistance whatever. When I was before that assembly, I was further convinced that I had not been deceived in my conjectures. I found that the members of it were not sworn, and the witnesses were not examined upon oath; and all the members, as well as every person present, might easily have perceived, by the questions which I asked, and by the whole tenor of my conduct, that I had not the least notion that I was tried or examined upon an affair on which my life or death depended.

In the 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 can be the object of their researches; and his having entered the lines of the enemy’s camp or garrison, subjects him to military execution. As that accusation neither is nor can be made against me, I humbly conceive that the information I received, that the court would make inquiry concerning what point of view I ought to be considered under, could not be taken as a sufficient notice of their having an intention to try me then; but could only be thought to signify, that they were to take it into consideration whether I ought to be looked upon as a British subject or as an American: that in the first case I should undergo a legal and impartial trial; in the second, I should be set at liberty on my parole. Judge then, my lord and sir, of the astonishment I must have been in, when I found they had drawn me by surprise into a proceeding tending to judgment, without my knowing it to be such; and deprived me of the ability of making a legal defence, which it 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 and of witnesses; and when they abruptly informed me, that after the procedure of the court I was condemned to die, and that in a very few days. Immediately upon receiving this notice, I sent for the lawver whom I had originally chosen for my counsel. I here inclose his opinion concerning the legality of the process held against me; and I beg that I may be permitted to refer myself to him. I can assure you with the utmost truth, that I had and have 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 humanity, I earnestly intreat that my execution may be deferred, that I may at least take a last farewel of my children, and prepare for the dreadful change. I hope you will return me a speedy answer; and am, with respect,

ISAAC HAYNE.

To this representation the town major returned the following answer. “I have to inform you, that your execution is not ordered in consequence of any sentence from the court of inquiry; but by virtue of the authority with which the commander in chief in South Carolina and the commanding officer in Charleston are invested: and their resolves on the subject are fixed and unchangeable.”

Disdaining further discussion with relentless power, Hayne merely solicited a short respite, to enable him for the last time to see his children. The request was granted in the following communication from the town major. “I am to inform you, that in consequence of a petition signed by governor Bull and many others, as also of your prayer of yesterday, and the humane treatment shown by you to tlie British prisoners who fell into your hands, you are respited for forty-eight hours; but should general Greene offer to expostulate in your favor with the commanding officer, from that moment this respite will cease, and you will be ordered to immediate execution.”

After the delivery of this message, the amiable American enjoyed the comfort of seeing his family and conversing with his friends. During this interesting, this awful period, he discovered a dignified composure; and in his last evening declared, that “he felt no more alarmed at death, than at any other occurrence which is necessary and unavoidable.” Very different, indeed, were the feelings ofhis friends. Mrs. Peronneau, his sister, accompanied by his children, all clad in the deepest mourning, and manifesting the torture of their heart-rending agony, waited on lord Rawdon, and on their knees supplicated him to spare the victim! But his lordship’s “resolve was fixed and unchangeable!” Anxious to terminate a life of truth in the formalities of honor, colonel Hayne solicited, in a second letter to the stern duumvirate, permission to die like a soldier. He then arranged the preceding correspondence; and on the morning of his execution presented the packet to his son (a boy of thirteen years) and directed him to “deliver it to Mrs. Edwards, with my request to forward it to her brother in congress. Go then to the place of my execution,—receive my body, and see it decently interred with my forefathers.” This done, he embraced him, imploring the divine blessing on his orphan children. Dressed with his accustomed neatness, accompanied by a few friends, he marched with unruffled serenity through a weeping crowd to the place of execution. He had flattered himself with the presumption that his last request would be granted: quickly the sight of the gibbet announced the fallacy of this hope. For a moment he paused, but immediately recovering his wonted firmness, moved forward. At this instant a friend whispered his confidence that “you will now exhibit an examjile of the manner in which an American can die.” “I will endeavor to do so,” was the reply of the modest martyr. Never was intention better fulfilled: neither arrogating superiority, nor betraying weakness, he ascended the cart, unsupported and unappalled. Having taken leave of his friends, and commended his infant family to their protection, he drew the cap over his eyes, and illustrated by his demeanor, that death in the cause of our country, even on a gallows, cannot appal the virtuous and the brave.

The proceedings in this case exhibit a prevarication and precipitance, no less disreputable to the authors than repugnant to the feelings of humanity. The unfortunate captive is first informed, that a court martial will be convened for his trial; next, that a court of inquiry will determine the proper mode of procedure, before whom he will be allowed the assistance of counsel; then, without this assistance, that he is doomed to death, in consequence of the deliberations of the latter tribunal; and lastly, that the bloody sentence does not emanate from this authority, but is the inflexible decree of the two military commanders. Had the discovery of truth and execution of justice been the sole objects in view, those who well knew what was English law, liberty and practice, could not have erred. Colonel Hayne was certainly either a prisoner of war, or a British subject. If the latter, he was amenable to the law, and indisputably entitled to the formalities and the aids of trial: but if the former, he was not responsible to the British government, or its military commander, for his lawful conduct in the exercise of arms. Unhappily for this virtuous man, the royal power was fast declining in the South. The inhabitants were eager to cast off the temporary allegiance of conquest: it was deemed necessary to awe them into submission by some distinguished severity; and Hayne was the selected victim!

As soon as this tragical event was known to general Greene, he addressed colonel Balfour, demanding an explanation of the daring outrage. The commandant replied, that “the execution of colonel Hayne took place by the joint order of lord Rawdon and himself; but in consequence of the most explicit directions from lord Cornwallis ‘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 Charleston, and the clear conquest of the province in the summer of 1780; more especially such, as should have accepted of commissions, or might distinguish themselves in inducing a revolt of the country.’ To his lordship, therefore, as being answerable for the measure, the appeal will more properly be made.”[note 52]

The order of lord Cornwallis, as avowed by the commandant of Charleston, engaged the serious attention of Greene; who determined to resist, with all his power, the cruel and sanguinary system. The officers of the American army entered with zeal into the views of their leader; and urged, in a unanimous address, the propriety of retaliation. “Permit us to add,” says the concluding paragraph of that manly paper, “that while we lament the necessity of such a severe expedient, and commiserate the sufferings to which individuals will be necessarily exposed; we are not unmindful that such a measure may, in its consequences, involve our own lives in additional danger. But we had rather forego temporary distinctions, and commit our lives to the most desperate situation, than prosecute this just and necessary war on terms so unequal and dishonorable.” Greene was highly gratified with the cordial support, spontaneously pledged by his army; and, soon after his departure from the High Hills, issued a proclamation, severely arraigning the execution of colonel Hayne, declaring his determination to “make reprisals for all such inhuman insults, and to select for the objects of retaliation officers of the regular forces, and not the deluded Americans who had joined the royal army.”

The inhabitants of Carolina, whom the enemy had expected to intimidate by the wanton sacrifice of Hayne, discovering the generous and determined spirit of the American general and army, discarded the apprehensions at first excited, and flocked to the standard of their country. Emulating the ardor and decision of the regular troops, they were ready to subject themselves to all the perils to which they might be eventually exposed in the just cause of retaliation.

The British officers and soldiers were not unmindful of the changed condition of the war. The unpleasant sensations arising from this state of things naturally produced a serious examination of the cause; and the inquiry was not calculated to inspire confidence.

The feelings which it excited received a considerable addition from the representation which, by permission of the American general, was now made by two British subalterns, taken prisoners shortly after the execution of colonel Hayne was known in the American camp; and who, as soon as captured, were committed to the provost by order of general Greene. Apprehending that they would become the first victims of the barbarous policy introduced by their commanders, they addressed their friends in Charleston, describing their condition, announcing their probable fate, and referring to that clause in the American general’s proclamation, which confined his menaced retaliation to British officers only.

The honorable and reflecting of both armies perceived, that the justice of the sentence was at least questionable; that inconsistency and passion had marked the proceedings. Nor did it escape observation, that colonel Balfour, when attempting to shield himself and coadjutor under cover of instructions, withheld their date. This suppression naturally excited a belief, that the orders of lord Cornwallis were previous to Greene’s recovery of that part of Carolina in which Hayne resided. Although his instructions might have comprehended the case of the ill fated American, while the country around him was subject to the royal power; yet after the reconquest by Greene, they could not be applied with justice. The extraordinary condition which accompanied the respite, corroborated this conjecture. It was generally asked, if the decision be really conformable with the instructions of Cornwallis, why should Greene’s expostulation be prohibited? The interposition of the American general could not prevent the execution of the sentence, if correct; but would lead to a discussion with his lordship, which might demonstrate its injustice,—an event to be courted, not avoided, by honorable men, dispensing death at their pleasure. It occasioned no little surprise, that lord Rawdon, who had been deemed scrupulously observant of the nice bearings of honor, should have provoked a system of retaliation, in the unpleasant consequences of which he could not participate, being about to depart for ever from the theatre of action!

All these considerations, combined with the actual condition of two of their comrades, produced a meeting of the British officers in Charleston, who presented a memorial to the commandant, expressing their dissatisfaction at the changed condition of the war.

It was reported and believed that the memorial was answered by an assurance, that the late sanguinary precedent should never be repeated; which not only calmed the just apprehensions of the British army, but seems to have influenced the future conduct of British commandants.

When the execution of Hayne was known in England, it became a topic of animadversion. The duke of Richmond introduced the subject in the house of lords, by “moving an address to the king, praying that his majesty would give directions for laying before the house the several papers relative to the execution of Isaac Hayne.” His grace prefaced the motion with a succinct and correct narrative of the capture, condemnation and execution of the American colonel; and charged the procedure with ‘illegality,’ ‘barbarity,’ and ‘impolicy.’ He read to the house an extract from the proclamation of general Greene, in which the execution was “reprobated as a cruel and unjustifiable murder, and severe retaliation was threatened on the persons of British officers. His grace called on the house to institute an immediate and effectual inquiry, as the only mean of securing their own officers from the dangers which hung over them; and of rescuing the British nation from the opprobrious charges of cruelty and barbarity, under which it labored in all the states in Europe.” The motion was strenuously opposed by the lord chancellor, the lords Walsingham and Stormount. They argued that “as his majesty’s ministers had declared that no information had been received relative to the facts alluded to, it was inconsistent with the dignity and gravity of the house to proceed to a formal inquiry on vague and uncertain surmises; that it was still less candid and equitable, on such slight grounds, to call in question the characters of brave, deserving, absent officers. But were the facts true and authentic, these lords contended, that colonel Hayne, having been taken in arms after admission to his parole, was liable to instant execution, without any other form of trial than that necessary to identify the person.” The earl of Huntingdon, uncle to lord Rawdon, acquainted the house, that “he had authority from the earl Cornwallis to declare, that this had been the practice in several cases under his command in North Carolina.” The doctrine of the ministerial lords was denied, with great confidence, by the earls Shelburne and Effingham. It was asserted by the former, “from circumstances within his own knowledge, that the practice in the late war was totally different. A great degree of ignominy and stricter confinement were the consequences of a breach of parole: the persons guilty of that offence were shunned by gentlemen; but it had never before entered into the head of a commander to hang them.” The earl of Effingham remarked, that “the practice of granting paroles was a modern civility of late date, not yet prevalent in all countries; and that the lord chancellor’s quotation from Grotius related to spies, and not to prisoners who had broken their paroles.” The motion of the duke of Richmond was rejected by a large majority; twenty-five lords voting in favor of the address, and seventy-three against it.[note 53]

The arguments, in opposition to the motion, are certainly feeble. Want of official information was a good reason for postponement, but not for rejection. If the principles of public law, relative to spies, can be applied to prisoners who violate their paroles, they were inapplicable to the case of Hayne; who was condemned for “being found in arms after he had become a subject.” Nor is the doctrine of the earl of Shelburne entirely correct. “Modern civility” has indeed meliorated the severities of war, by accommodating prisoners with paroles. Sometimes the indulged captive is permitted to return to his country; at others, he is restrained to a particular town or district; and in either case, he is required to remain neuter until officially exchanged. Ignominy justly follows the violation of parole in regard to limits; but the breach of it by resumption of arms is invariably and rightly punished with death. Had Hayne been guilty of this offence, his execution would have been indisputably just: but the virtuous American neither was nor could be charged with infraction of parole, by resumption of arms. The parole, under which he retired to his seat after the capitulation of Charleston, was completely revoked by the order to repair to that city, and by the surrender of his person to the British commandant. He was then permitted to return to his family, not as a prisoner on parole, but as a British subject; of which character the reconquest by Greene entirely divested him, and restored him to his country, his liberty, and duty.

The ship, in which lord Rawdon embarked for England, was captured by some of the French cruisers, and brought into the Chesapeak. Soon afterwards the propitious termination of the siege of York placed in our hands the earl Cornwallis. Washington had it now in his power to execute the intention of Greene; but the change in the demeanor of the British commanders, and the evident and fast approach of peace, rendered the severe expedient unnecessary. He therefore indulged his love of lenity, and conformed his conduct to the mild temper of the United States; forgiving an atrocity, which, at any other period of the war, would not have been overlooked.

Relieved as must have been lord Rawdon and colonel Balfour, not more by the decision of the house of lords, than by the clemency of the American commander in chief, they could not, with propriety, infer from either circumstance, justification of their conduct. The rejection of the duke of Richmond’s motion grew out of considerations foreign to the real merits of the subject; and the lenity of Washington may be truly ascribed to an unwillingness to stain the era of victory and returning amity with the blood even of the guilty.

Had this principle, as amiable as wise, governed lord Rawdon and colonel Balfour, their fame would not have been tarnished by the blood of an estimable individual, wantonly and unnecessarily shed. How unlike the conduct of these commanders was that of the American chieftain to the unfortunate Andre! At a period of the war, when a strict and stern execution of martial law was indispensable, the interposition of sir Henry Clinton in behalf of an acknowledged spy was received by Washington with patience and with tenderness; and every argument, which the British general and his commissioners could suggest, was respectfully weighed. But in the closing of the war, when true policy and the mild tenets of Christianity alike urged oblivion and good will, lord Rawdon and colonel Balfour hurried an innocent untried American to the gallows, and cruelly interdicted previous communication to his general!

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