At four o’clock in the afternoon, the dead Patriot’s neighbors cut him down from the makeshift gallows made of fence rails. In his coat pocket they found his will, dictated that morning as he stood on the now-overturned flour barrel, the noose already girdling his neck. Fastened to his chest was a placard penned by his Loyalist executioners:

We the Refugees having with Grief Long held the Cruel Murders

Of our Brethren and Finding Nothing but such Measures Daily

Carrying into Execution

We therefore Determine not to Suffer without taking Vengeance

For numerous Cruelties and thus begin and have made use of Captn

Huddy as the First Object to present to your Views, and Further

Determine to Hang Man for Man as Long as a Refugee is left Existing.

UP GOES HUDDY

FOR

PHILIP WHITE.

A local tailor would later describe watching from across the bay as a party of armed men landed with a prisoner and improvised the gibbet. Their leader shook hands with the captive standing on the barrel; then a “negroe” kicked it from under his feet. One of the first press reports on the hanging would attribute the outrage to a “mixed Company of Negroes, Tories and Englishmen,” as unholy a trinity of modern barbarians as American Patriots could imagine.¹

Joshua Huddy’s execution at Highlands Beach, New Jersey, on April 12, 1782, and the events it unleashed are an emblem of the bitter American civil war that continued to embroil Americans in violence around British-held New York well after Cornwallis had surrendered his army at Yorktown. Over subsequent months, the case would trigger legal proceedings, preoccupy congressional committees and the Anglo-American press, and elicit international interventions. It would also test the moral compass of leaders on both sides of the conflict. As Generals George Washington and Sir Henry Clinton (and his successor, Sir Guy Carleton) struggled to uphold the laws of war under intense political pressure, each man sought to square the demands of his own conscience and honor with the imperative of his nation’s standing in the world.²

The deliberate execution of a captive Patriot by organized armed Loyalists was an exception in the Northern war. But it gained the notoriety it did because of what it seemed to suggest about the conduct of the war at this late stage. Formal exploratory talks between British and American peace negotiators only started in Paris the very day of Huddy’s execution—six months after Yorktown. It would be another half year before preliminary terms were reached, and several more months before the Crown ordered a cessation of hostilities in America. Meanwhile, seven long years of civil conflict had inspired in many Americans an enduring desire for revenge. And indeed, at heart, this multilayered episode—a lynching, a legal case, a congressional cliffhanger, a family drama, an international affair—revolved around the lex talionis: the law of retaliation grounded in ancient ideas of retributive justice that by the eighteenth century was part of the codes of war. All parties to the war were of the view that the lex talionis—the idea that retaliatory violence in response to breaches of the codes of war was a legitimate means of deterring the further use of illegitimate force—was a necessary element of regulating warfare, as long as the retaliation matched the offense in kind and degree. Yet all sides equally recognized that in practice the lex talionis risked further escalating the levels of violence in a zone of war. This was especially the case when irregular forces were involved.

The Loyalists’ alleged murder of a Patriot in retaliation for the death of one their own might also have ramifications for how Americans would treat one another once their civil war ended. And since the Huddy affair unfolded against the never-too-distant backdrop of the Anglo-American peace talks in Paris, both sides worried that it might impact their delicate diplomatic negotiations, too: when the execution of one man, the Patriot Joshua Huddy, prompted responses from the leaders of three countries, clearly much was at stake both for the individuals and for the nations concerned.³

In those parts of New York, New Jersey, and Connecticut that surrounded British-held New York City, the partisan conflict between armed Patriots and Loyalists had continued since 1776, virtually impervious to the ebb and flow of the wider Anglo-American war; the surrender at Yorktown affected these local civil wars as little as it contained the guerrilla warfare in the South. By 1781, the Crown had expanded armed Loyalist involvement in the Northern theater. Small bands of armed Patriots and Loyalists were soon engaging in guerrilla warfare across much of New Jersey—a “dirty little war,” as the military historian John Shy has characterized it, of raids, break-ins, plundering, kidnappings, and arrests. Among the areas of New Jersey most fiercely affected was Monmouth County, whose coastline stretched from Sandy Hook south to Little Egg Harbor. On the eve of the war, it had an estimated population of some 10,000 whites and 1,400 black slaves; racial tensions were mounting. Throughout much of the conflict, Loyalist refugees launched raids into the county from bases in British-held New York and the Sandy Hook peninsula, while Patriots harassed Loyalists who had stayed behind. Since 1778, Monmouth County had also been the target of the guerrilla operations of a former slave of African descent, Titus Cornelius. In 1775, Titus, then twenty-two years old and described as “not very black, near 6 foot high,” had run away from his Quaker master in Shrewsbury. Titus served in Lord Dunmore’s Ethiopian Regiment in Virginia and survived the smallpox epidemic that killed at least 1,000 blacks. He next resurfaced in mid-1778 in New Jersey—now known by the honorific title Colonel Tye—and fought valiantly in the Battle of Monmouth.⁴

Benjamin Morgan and Anthony Dennis, A Map of Monmouth County [1781]. Credit 50

Over the following year, Colonel Tye led runaway black slaves and white Loyalists in plundering raids, often targeted at the former slaves’ ex-masters. In response, in 1780, Monmouth County Patriots chartered the Association for Retaliation. Their professed motive was self-preservation in the face of the Loyalist threat, which they argued justified retaliatory violence. They took as their motto the biblical injunction “An eye for an eye, & a tooth for a tooth.” Following each incident of Loyalist violence that took place in the county, the association would select an appropriate target to retaliate against. The Retaliators repeatedly requested that the New Jersey assembly legalize them. State authorities refused to do so, distancing themselves from what they considered illegal, terroristic methods—but neither did they try to rein them in.⁵

By late 1780, Loyalist refugees in New York chartered the Associated Loyalists to counter the Association for Retaliation. Frustrated with Britain’s failure to protect Loyalists from vengeful Patriot violence, this group wanted to disturb rebel trade, harass coastal areas, and launch hit-and-run raids to grab prominent Patriots and profitable plunder. Presiding over the board of directors of the Associated Loyalists was none other than William Franklin, Benjamin’s estranged, staunchly Loyalist son. Franklin’s biographer describes him as “vain, ambitious and authoritarian. He could be unbending, vindictive, and a little paranoid. But he was also intelligent, industrious, and charming.” Formerly the royal governor of New Jersey (1762–76), Franklin had spent more than two years as one of the rebels’ most prominent prisoners until he was exchanged in the fall of 1778. By 1780, he was operating from New York City, where he became one of the most forthright advocates of Loyalist raids into American-held territory in Connecticut, Rhode Island, and New Jersey, against the more restrained course recommended by General Clinton. Supported by Secretary Germain in London, Franklin’s side largely prevailed, and as the Associated Loyalists were launching their first raids, predictably, levels of violence in New Jersey’s dirty little war escalated further.⁶

When General Cornwallis surrendered his army to the Franco-American forces at Yorktown in October 1781, he agreed to a concession that must have made armed Loyalists throughout America feel both humiliated and frightened. For Article X of the treaty of capitulation distinguished between British troops, who were to be considered as prisoners of war, and Loyalist soldiers, whom the American Patriots might regard as treasonous citizens, to be punished under civil procedures. Loyalists, wrote William Franklin to Germain, were distressed to see that they were considered “in no better Light than as Runaway Slaves restored to their former Masters.” It was one thing for Patriot forces to treat individual Loyalists as rebels to their usurped government. But for the British Crown to expose the Loyalists in this manner seemed to them ungrateful at best, and criminally negligent at worst. The Associated Loyalists of New York feared that they might be abandoned next. Franklin sought reassurances from Clinton that any future treaties of capitulation would put Loyalists on the same footing as British captives. Clinton agreed, but he rejected Franklin’s related request to threaten retaliation against Patriot prisoners for any mistreatment that Loyalist captives might experience. Despite surrendering the largest British army in the entire war, Cornwallis returned to Britain to find his reputation largely intact. But he faced one major criticism: he had failed to obtain a provision in the articles of surrender that would have guaranteed the safety of the Loyalists.⁷

Justice

Not long after local citizens buried Huddy, several hundred Monmouth County residents petitioned General Washington to demand revenge for Huddy’s “horrid and most unparalleled Murder.” These citizens were outraged that the Refugees—that is, the board of directors of the Associated Loyalists—had singled out a captive Patriot guerrilla leader, Joshua Huddy, to be executed under a new policy of retribution, “Man for Man,” for the alleged murder of a Loyalist, Philip White. According to depositions enclosed with the Patriot petition, White had been offered quarter but had nonetheless attempted to escape six days after Huddy’s arrest; his killing, while perhaps regrettable, was thus in line with the laws of war. (For their part, Loyalists insisted White’s killer had acted out of personal vengeance: White had once led a Loyalist raid on his killer’s house, murdering and maiming members of his family.)⁸

To these Patriots, the revenge killing of Huddy, which had occurred without legal proceedings, was “barbarous in the Extreme,” and they held General Clinton ultimately responsible for that barbarity. The laws of nature and of nations suggested that only retaliation could deter such acts in the future, these Patriots held, citing the congressional manifesto of October 1778 with its evocation of the lex talionis.

Washington referred to the Monmouth petition twice—first in recommending a course of retaliation to Congress, and again when he demanded justice from his British counterpart, Clinton, for “the most wanton, unprecedented, & inhuman Murder that ever disgraced the arms of a civilized People.” No sooner had Washington given Britain the benefit of the doubt—suggesting that the British might still be considered a civilized people, to whom such outrage should be repugnant—than he threatened Clinton: “To save the innocent, I demand the guilty.” Should the British not hand over Captain Richard Lippincott, the man generally suspected of having overseen Huddy’s execution, or others responsible for Huddy’s death, he would seek justice for the murdered Patriot by other means.⁹

Clinton must have known that he was dealing with a highly sensitive matter; he had already put the case before an army board of inquiry to advise him on the appropriate course of action. While reassuring Washington that he agreed that Huddy’s murderer must face justice, Clinton took exception with the American’s tone and the implications of his accusations: “The Mildness of the British Government does not admit of Acts of Cruelty or persecuting Violence.” As he had “never yet stained my Hands with innocent Blood,” he asked Washington to trust him that he had not authorized any cruel acts potentially carried out under his command.¹⁰

Clinton considered Washington’s threat to retaliate against a random British-Loyalist target both morally reprehensible and counterproductive. “To Sacrifice Innocence under the Notion of preventing Guilt, in Place of suppressing,” Clinton warned, “would be adopting Barbarity and raising it to the greatest height.” Rather than escalating the spiral of violence, both sides ought to commit themselves to preventing future illegal killings. Mutual charges of barbarity were by then, of course, well rehearsed. But here was an unusually tricky situation: the lex talionis, meant to help regulate violence, had itself become the object of contention. Either side might easily emerge from the ethical tangle looking more cruelly vindictive.¹¹

While Clinton refused to hand over Captain Lippincott to the Americans, he did have him court-martialed for Huddy’s murder. The court-martial would become a forum for Loyalists and the Crown to air their views on the regional civil war and the law of retaliation that increasingly seemed to govern it. The proceedings were set to begin in early May but were delayed by jurisdictional wrangling. When General Sir Guy Carleton arrived in New York City to take over from Clinton as commander in chief, he ordered a review of the proper jurisdiction. Carleton’s primary mission was to implement the new British government’s agenda of ending the war: the Huddy-Lippincott case could not have hit his desk at a worse time. Meanwhile, the affair was beginning to be widely publicized in the American press, with numerous papers carrying the story of the placard pinned to Huddy’s corpse as well as extracts from the Monmouth citizens’ petition and the commanders’ correspondence. For a brief moment there was some speculation that the British might yet deliver Lippincott to satisfy Washington’s demand after all.¹²

Preoccupied with the lex talionis and what it might mean in practice at this late stage of the war, both commanders in chief explained themselves to William Livingston, the governor whose state was being ravaged by civil war. Washington recognized the implications of reciprocity: since he demanded that the British hand over a suspected war criminal, he would need to do the same in return if ever an American soldier violated the laws of war. For Carleton, it didn’t much matter whether feelings of private or public revenge had caused the recent escalation. He wished to focus instead on ending the cycle of violence and retaliation that threatened to bring dishonor to all.¹³

General Carleton eventually instructed the court-martial to convene in mid-June. Captain Richard Lippincott was charged with the premeditated murder of Joshua Huddy, “a Prisoner of War to the Associated Loyalists, by hanging or causing him to be hanged by the Neck until he was dead.” The undisputed facts were few: The board of the Associated Loyalists had handed over custody of Huddy to Lippincott on April 9. Lippincott subsequently removed Huddy from the New York Provost and transferred him to the British guard ship Britannia; on April 12, Lippincott was present at Huddy’s execution. For the prosecution, the army’s deputy judge advocate, Stephen Payne Adye, the author of the standard British work on courts-martial, argued that the board had released Huddy and two other prisoners to Lippincott for the purpose of exchanging them for Loyalist prisoners. Lippincott instead planned from the beginning to use Huddy to retaliate for assumed Patriot atrocities against Loyalists. He was driven by malice, operated without orders from the board, and was clearly in command of the execution: witnesses testified that he had asked for a rope, shook hands with the prisoner, and did not seek to prevent the killing. Lippincott, in other words, was guilty of Huddy’s murder.¹⁴

The accused conducted his own defense, although he had prepared with legal counsel. Lippincott opened with a Loyalist’s lament of great personal sacrifice and loss. In front of a court-martial of fourteen officers, including eight senior Loyalists, he described a wave of Patriot murders crying out for Loyalist retribution to stem the tide of unrestrained violence. Captured Loyalists, including friends of his, had not been treated as prisoners of war under the laws of war but had instead been “tried by Rebels as Rebels to their usurped forms of Government, while others have been executed in cold blood” without even the pretense of any legal process. Loyalist pleas for British protection against such outrages had been unsuccessful. Some retaliatory killings of rebels, however, had helped temper the treatment of the Loyalists. The lex talionis, in other words, was working. Huddy’s execution had not been motivated by private feelings of revenge but followed instead a public policy of proportionate retaliation. Having previously executed several Monmouth County Loyalists, Huddy was an appropriate target for such retribution.¹⁵

Lippincott’s legal case rested on circumstantial evidence suggesting that he had followed verbal orders from the board authorizing him to execute Huddy. Acting under the reasonable assumption that such orders were lawful, and that he was bound to obey superior officers led by Franklin, he had proceeded to carry out the execution. In support of his argument, Lippincott produced the record of a conversation held with the provost marshal, William Cunningham. Cunningham had taken notes according to which Lippincott claimed to have acted with Franklin’s approval; he also had shared with Franklin the “label that was intended to be fixed on Huddy’s breast.” In court, Lippincott paraded witnesses who testified that they had heard Franklin say—or had heard it said that Franklin said—that Huddy must be hanged lest the Loyalists all be hanged.¹⁶

Since no written orders existed, and no other party could confirm the verbal orders, and as Lippincott could not—and Franklin would not—testify under oath, the court faced a serious problem of evidence. There also was the issue of the mystery paper—apparently a version of the Huddy placard or label—that Lippincott claimed to have shown to board members, but which no trial witness had admitted seeing. Bookending his opening Loyalist apologia, Lippincott reminded the court in his closing statement that “several of my Friends and Neighbours and vast numbers of my countrymen, united in one Common cause, by all the Ties of Affection, and Interest, have fallen a Sacrifice to Rebel Barbarity.” In a transparent rhetorical move, Lippincott, the much-suffering Loyalist, thus turned the Patriots’ charge of cruelty against them.¹⁷

Retaliation

On May 3, 1782, the same day that Lippincott’s court-martial had opened in New York, Washington initiated contingency planning in case the British Army failed to deliver justice for Huddy. He ordered the commander of the prisoner camp at Lancaster, Pennsylvania, General Moses Hazen, to select a British captain to be hanged in retaliation for Huddy’s murder. Washington specified that he required a so-called unconditional prisoner—that is, one who had been captured on the battlefield and was not under the protection of any terms of capitulation, such as those agreed to at Yorktown, that would prevent his execution. When it became clear that Hazen was unable to identify such a person, Washington ordered a conditional prisoner to be chosen instead. On May 27, Hazen assembled thirteen British captains who had surrendered with Cornwallis’s army at Yorktown. These men felt their rights under the laws of war were being violated and refused to draw their own lots, forcing the Patriots to draw for them. Two hats were produced with two sets of papers: one with the thirteen names, one with twelve blank notes plus a thirteenth that said “unfortunate.” Several reports refer to Hazen calling a small boy from the street to draw the lots.

The dreaded piece of paper didn’t turn up until only two names were left. The unlucky man was Charles Asgill. Hazen’s conscience seemed troubled when he described the loser of this lottery as “Charles Asgill of the Guards a young gentleman of Seventeen [he had in fact just turned 20]; a most amiable character, an extensive fortune and great interest in the British Court and Army.” Asgill wrote personally to Washington to protest the violation of Article XIV of the Yorktown capitulation that protected him from reprisals, a treaty “in which the Honor & Faith of Nations are the Pledges.”¹⁸

Asgill, the son of a former Lord Mayor of London and heir to a baronetcy, had entered the army in 1778, at age sixteen, as an ensign in the 1st Foot Guards. Deployed to America as a lieutenant in 1781, he was almost immediately captured with the British Army at Yorktown. No sooner had Washington overseen Asgill’s selection than he questioned its legal and moral implications. Washington confessed that the choice of the young officer “has distressed me exceedingly.” He added, “I am deeply affected with the unhappy Fate to which Capt. Asgill is subjected.” Even as duty required him to prepare for the possibility of retaliation under the laws of war, Washington continued to hope that Asgill’s life could somehow be saved. “Humanity dictates a tear for the unfortunate offering,” he wrote. But, he continued, British leaders could protect Asgill by ensuring that “the Manes of the Murdered Capt. Huddy will be appeased.” In the meantime, Washington wanted Asgill, who had been transferred to an army encampment near Morristown, to be treated there “with every tender Attention and politeness” that the situation permitted.¹⁹

John Fielding (publ.), Captain Asgill (London, 1786). Credit 51

With Lippincott’s court-martial still in process, the Patriot press published a special issue of Thomas Paine’s Crisis series. In the form of a letter addressed to Carleton, Paine denounced Huddy’s murder as “contrary to the practice of all nations but savages”—although, come to think of it, he wrote, even the Native Americans had some “formality in their punishments.” Stringing up a prisoner for sheer diversion was worse than anything even the most savage Indians practiced. The case demonstrated that British generals had, once and for all, forfeited their right to talk of “British honor, British generosity, and British clemency”; there was now indeed “not a meaner or more barbarous enemy, than the present British one.” To execute a protected prisoner for sport was “an original in the history of civilized barbarians, and is truly British.” Unless he handed over Lippincott, Carleton personally would become “the executioner of Asgill, as if you had put the rope on his neck.” The broader moral lesson was that the British needed to put the militantly wicked Loyalist genie back into the bottle. Paine chastised Britain for employing American Loyalists in the role of hunting beasts. Carleton’s predecessors had trained them “like hounds to the scent of blood, and cherished in every species of dissolute barbarity.” Carleton’s duty was now clear: “[G]ive up the murderer, and save your officer, as the first outset of a necessary reformation.”²⁰

On June 22, the military court rendered its verdict. While it condemned Huddy’s execution as an illegal act, it exculpated Lippincott, finding that his conduct could not be proven malicious. We will never know for certain whether or not the board gave Lippincott explicit verbal orders to execute Huddy. But William Franklin’s conduct as the board’s president points towards his culpability. Franklin’s first response after the hanging had been to justify the execution in a letter to Clinton. The killing was hardly surprising, he argued; indeed, it was a just act of self-preservation, especially since the British were not willing or able to adequately protect the Loyalists from Patriot vengeance. Franklin followed up by reminding Clinton of the murders of well-situated Loyalists by Patriots, including Joshua Huddy’s own hanging of one or several men from families of good standing over the preceding years.²¹

After Lippincott’s acquittal, however, Franklin sought to distance himself from the affair. In August, he sent a lengthy letter to Clinton’s successor, Carleton, asserting that he had not issued written or verbal orders for any executions when Lippincott came before the board, nor had he ever claimed the authority to do so, even though he had made clear that, in his judgment, only retaliation could curb rebel violence and stop murders. As far as Lippincott’s mysterious piece of paper was concerned, Franklin had read only the first line or two before a senior colleague stopped him and he immediately handed it on. Franklin admitted that the opening phrases made him suspect it contained a threat of retaliation and that he should probably have read it through, but the fact that he did not do so was confirmed by the affidavits of additional board members. Thus feebly declining to take any responsibility, Franklin sailed into exile in England. With Lippincott acquitted and Franklin beyond reach, those seeking justice for Huddy would have to look elsewhere.²²

The British public did not learn of Huddy’s execution until June. The London paper the Public Advertiser reprinted parts of a month-old letter from New York, sent to “put the public upon their guard against listening to the insinuation that a Mr. Huddy, who was executed by the loyalists, did not suffer according to the rules of war.” The letter was a harshly worded pro-Loyalist gloss on Washington’s letter to Clinton demanding justice for Huddy’s murder. Washington’s missive was designed to allow the “abettors of treason, both here and in England” to construe a legitimate retaliatory measure such as Huddy’s execution as “a savage murder.” Once all sides had been heard, the rebel leader’s epistle surely would appear as “atrocious and unjustifiable,” and the Loyalists’ enemies would no longer be able to “murder their reputations.” By mid-July, British newspapers had carried the story of Huddy’s execution, had reprinted the correspondence between the board and Clinton as well as between Washington and Clinton, and were covering the developments leading up to Lippincott’s indictment and Asgill’s selection for potential retaliation.²³

British readers thus were aware that British and American commanders had committed themselves in lofty language to preventing and punishing any breaches of the laws of war, indeed to exercising “tenderness & humanity,” as Washington put it. They also saw that each side asserted its own reading of the laws of war and how they ought to be applied in particular circumstances. Loyalists and those speaking for them insisted that Britain was to hold the enemy to their promises of humane conduct; a failure to seek redress for cruelties must be considered “impolitic, inhuman, and criminal.” Commentators wrestled with the law of retaliation and what it meant in the American war. “Grotius,” an anonymous writer adopting as his pseudonym the name of the leading early modern European jurist, argued that the moment for retribution had long passed. Now that American independence was a fait accompli, it would be “highly impolitic and improper for us to enter into the horrid course.” Britain could “no longer retaliate without having it returned with tenfold vengeance.” This would leave commanders in a terrible dilemma: they would be responsible for protecting Loyalists serving with the British Army while knowing that Washington could theoretically execute any armed Loyalists he captured.²⁴

What the British reading public may not have appreciated was how concerned their government was that the affairs might jeopardize their peace efforts. Just after taking office as prime minister at the start of July 1782—the Marquess of Rockingham had died suddenly, just months into his premiership—the Earl of Shelburne wrote a letter marked “secret” to General Carleton in America, expressing his hope that “the unfortunate execution of the American officer in New Jersey will not provide an obstacle in the way of accommodation.” Those anxious to conclude a war that had cost much blood and treasure were acutely aware that specific experiences and perceptions of violence continued to impact how participants understood the conflict.²⁵

For several weeks in August and September—by which time Paine’s Crisis essay had also circulated in British papers—contradictory accounts of the case, referencing various sources in America and received via ports in Ireland and the Netherlands, appeared in the press. One set of reports said that Lippincott had been handed over to the Americans for execution back in mid-June. Other versions had Lippincott still awaiting his court-martial verdict. According to one newspaper, he had been convicted of murder and the trial transcript had been sent to the king. Next, rumors began spreading of Lippincott’s acquittal. Asgill therefore remained in danger, but at least one newspaper trusted that Washington’s “humane heart” would not allow the young officer to come to any harm, while another writer hoped that Congress would intervene rather than risk the “detestation of all mankind,” including that of their French allies. In France itself, this writer observed, “the first question asked of all vessels that arrived from any port in North America, was always an inquiry into the fate of this young man.” Then, in late September, the London Evening Post reprinted a letter from the American foreign secretary, Robert R. Livingston, to a gentleman in the Dutch town of Leyden. Livingston’s letter suggested that this time Congress did mean business: Asgill might well have to pay for Huddy’s execution. After numerous occasions when Congress had threatened to retaliate for English barbarity, but had ultimately allowed their “humanity to prevail over their resolutions,” Huddy’s murder had finally tilted the balance. Asgill’s execution would be a necessary means of containing the illegitimate violence of “the most savage nation on earth.”²⁶

Lippincott’s acquittal had further lowered the sword of Damocles that had been dangling over Asgill’s head since May. Transmitting the court-martial records to Washington in late August (a two-month delay), Carleton reassured his counterpart that he had ordered further inquiries into Huddy’s murder. Already, the board had ceded the power to confine and exchange prisoners of war to the commander in chief. Carleton offered a realistic appraisal of the cycle of violence and counterviolence in New Jersey’s civil war: the “same Spirit of Revenge has mutually animated the People of New Jersey and the Refugees under our Command, equally criminal and deserving of Punishment in all, as they lead to Evils and Misfortunes of the blackest and most pernicious Sort.” He advocated joint efforts to contain excessive violence. At the same time, he lectured Washington on his flawed reading of the laws of war: threatening retaliation without giving the British a chance to respond, and arresting a protected prisoner of war while the court-martial had yet to rule, was inappropriate.²⁷

For Washington, though, Carleton’s conciliatory language offered the opening he had been looking for. He might now be able to save Asgill’s life without compromising the nation’s honor, and his own. Given Carleton’s concessions, executing Asgill at this stage would risk tarnishing America’s hard-won reputation for civility, respect for the laws of war, and proportionate violence. After all, Carleton had demonstrated a desire to deliver justice “by disavowing the act—by declaring that it is held in abhorrence—by not even sanctioning the motives which appear to have influenced Lippencot to become the executioner of Huddy—and by giving the strongest assurances that further inquisition shall be made.” Washington urgently requested Congress’s input on this “great national concern” that to him seemed too significant to be left to him alone to decide. At the same time, he flatly rejected Carleton’s accusation that he lacked “humanity, in selecting a Victim from among the British Officers so early as I did.” Washington continued to feel fully entitled to execute an enemy officer immediately and inform his British counterpart after the fact.²⁸

Once Congress learned of the court-martial proceedings at the end of August, it took its time to respond. Asgill, meanwhile, was placed on temporary parole and permitted to take rides in the countryside around Morristown. Elias Boudinot, the former commissioner of prisoners and a delegate for New Jersey, later remembered that, during that summer and early fall, feelings were running high in Congress, where a large majority still favored Asgill’s execution. Freeing the officer might be interpreted as a sign of weakness. Only a minority, Boudinot among them, thought that Carleton’s promise of conducting a more humane war, and of investigating the murder further, ought to make Congress reverse course.²⁹

As Congress was pondering, if not procrastinating, James Duane of New York, a key ally of Boudinot’s, wrote a lengthy epistle to Washington. Duane explained that he considered retaliatory acts in response to illegitimate violence, intended to “stop the wanton Effusion of human blood, or repress the Extremes of War,” as justified even if innocent individuals were killed as a result. But in light of recent British concessions, their promises to conduct the remainder of the war with restraint, and their general war-weariness, executing Asgill now could no longer be defended. Duane recognized that some insisted that Huddy’s murder still demanded justice; others were concerned that America’s “national Glory” might suffer were Asgill simply to be freed. But, for Duane, America’s moral standing trumped all other considerations: she must conclude the war as she had conducted it throughout—namely, “with the Humanity, which a benevolent Religion, civilized manners, and true military Honour inspire.” It was an approach “worthy of the Patrons of Liberty” that would secure “this Infant Republic a distinguished Rank among refined and civilized Nations” as well as invite divine endorsement.³⁰

A majority on the committees reviewing the court-martial records still saw no reason to desist. On their recommendation, however, Congress directed Washington to delay Asgill’s execution to give Britain one final chance to surrender Lippincott. It was now late October. After several days of debate, the minority conceded that it had lost the argument and asked only that Congress defer a final vote on such a grave matter by one more night. The next morning, October 29, just as Congress was about to resolve Asgill’s fate, an express courier delivered a letter from George Washington with two enclosures from Europe. These missives, in Washington’s words, constituted “a very pathetic & affectionate Interposition in Favor of the Life of Capt Asgill.” The letters struck Congress like “an electrical shock,” wrote Boudinot. Foul play was suspected. “The President [of Congress] was interrogated, the cover of the letters was called for, the general’s signature was examined.” By the time the delegates had verified the materials’ authenticity, the mood in Congress had irrevocably changed.³¹

Sentimental Patriotism

When Lady Theresa Asgill, Captain Asgill’s mother, first heard of her son’s predicament, she had apparently pleaded with King George III to intercede. The British monarch had indeed ordered that Lippincott be handed over to the Americans, as his crime had “dishonored the English nation.” If this was true, then either the royal order was lost in transit or commanders in America had ignored it. Lady Asgill next turned to America’s ally, and Britain’s archenemy, France, in the person of the foreign secretary, the Comte de Vergennes. Lady Asgill set out her case: “My Son (an only Son) and dear as he is brave, amiable as deserving to be so, only nineteen, a prisoner under articles of capitulation of York-Town, is now confined in America, an Object of retaliation! Shall an innocent suffer for the guilty?” Linking from the start the personal and the public—the dear, only son who had been mistreated under the laws of war—and echoing Washington’s initial demand, “To save the innocent, I demand the guilty,” Lady Asgill asked Vergennes to picture her family’s anguish: “Represent to yourself, Sir, the situation of a family under these circumstances, surrounded as I am by Objects of distress, distracted with fear and grief; no words can express my feelings or paint the Scene.” Her husband was so critically ill that the news was kept from him lest it kill him; her “daughter [was] seized with a fever and delirium, raving about her brother.” Would Vergennes please let his “own feelings…plead for my inexpressible misery” and ask Washington to release her brave, virtuous, honorable son? The minister’s intervention would resound like “a voice from Heaven,” and his humanity would “drop a tear on the fault and dissolve it.”

Lady Asgill’s letter, drenched in the language of sentimentalism, “with its emphasis on emotional truth, candor and naturalness,” that had been in vogue in England since the 1760s and was increasingly taking hold in France, made a deep impression on Vergennes—so much so that he took the case to King Louis XVI and Queen Marie Antoinette. Encouraged by their majesties, Vergennes composed a letter to George Washington, stressing that he was writing “not in quality of Minister of a King, the friend and Ally of the United States (tho’ with the knowledge & consent of his Majesty)” but instead “as a Man of sensibility and as a tender father who feels all the force of Paternal Love” interceding on behalf of “a Mother and a family in Tears.” Vergennes predicted that Washington, like him, would not read Lady Asgill’s letter “without being extremely affected; it had that effect upon the King and upon the Queen to whom I communicated it.—The goodness of their Majesties Hearts induces them to desire that the inquietudes of an unfortunate Mother may be calmed and her tenderness reassured.” Switching back and forth between his private and public personas, Vergennes went on to justify his intercession on additional grounds. First, Lady Asgill was appealing to the humanity of an enemy nation when her own had failed her. Second, French military support at Yorktown had helped deliver Asgill into American captivity in the first place, so France ought to have some say over his fate. In other words, both moral sentiment and national obligation clamored for Asgill’s release.³²

Once Congress had digested the trio of letters—Lady Asgill’s alone, said Boudinot, was “enough to move the heart of a Savage”—it soon became clear that it would need to order Captain Asgill’s release. The case returned to committee, with a vote by the full body scheduled for November 7. In the meantime, Boudinot had been elected the new president of Congress. But one question remained unanswered: Should the resolution cite the French intervention in order to preserve America’s national honor in no longer demanding retribution, or would it then appear that Congress was kowtowing to the French monarchy? Should they instead cite Carleton’s recent concessions to explain their restraint? In the end, Congress did not give any specific reasons for Asgill’s release. Hearing of the news in Paris, John Adams—one of the peace negotiators—felt “so exquisite a relief to my feelings that I have not much cared what interposition it was owing to. It would have been a horrid damp to the joys of peace if we had received a disagreeable account of him.” The congressional resolution did clarify that Continental Army commanders could henceforth demand satisfaction for any excessive violence occurring contrary to the laws of war and, failing that, exact retaliation. Congress also instructed Washington to insist that Carleton deliver on his mid-August promise to continue the Huddy investigations. With Lippincott acquitted and Franklin in London, however, Carleton soon informed Washington that his army’s legal authorities had no one else to prosecute. In keeping with his mission of managing the transition from war to peace, Carleton repeated his request that the belligerent powers cooperate on preventing further such atrocities.³³

When Washington informed Asgill of his release in a widely publicized letter in mid-November, he reassured the young Englishman that he had never acted with “sanguinary motives.” It had simply been his duty to seek justice and to prevent further illegal violence: “[T]hat this important end is likely to be answered without the effusion of the Blood of an innocent person is not a greater relief to you than it is to [me].” On November 30, Anglo-American negotiators signed a preliminary peace treaty in Paris. As news of Asgill’s reprieve had then not yet reached Europe, diplomats may have feared that the case might still impact their efforts to agree to a definitive treaty.³⁴

In the United States, Lady Asgill’s motherly passions inspired responses well beyond her son’s release. On New Year’s Eve 1782, an anonymous writer in the Pennsylvania Packet linked the lady’s letter with the miseries of many American mothers whose sons perished under horrible conditions on British prison ships:

[W]hat must be the feelings of the many hundreds of…tender American mothers, whose sons in the early bloom of youth have perished in that sink of misery, the prison ship at New York, where they endured scorching heat in summer, pinching cold in winter, naked and hungry, tormented, with vermin, and every species of human filth, parched with burning fevers and deliriums, until finally relieved by the cold hand of death.

On the day of the last judgment, the writer concluded, those dead American captives would rise as witnesses against the British, who continued to treat prisoners with such cruelty.³⁵

A more widely publicized letter by “An American” appeared at the turn of the year. Empathizing with Lady Asgill’s motherly relief, the author highlighted that “many mothers, wives, and sisters on this side of the Atlantic” had experienced similar “horrors of distress.” The Southern states in particular were “filled with widows, orphans, and bereft mothers, made so by British executions.” The author discussed the specific case of Colonel Isaac Hayne, who had been condemned to death because he had once enlisted with the British but had then been captured when fighting for the Americans. The ladies of Charleston petitioned for Hayne’s life with “melting arguments.” Hayne’s sister-in-law, accompanied by his four motherless children, begged British commanders on her knees to spare him—alas, to no avail. A once brave and humane nation now coldheartedly executed those they could not conquer. By contrast, America’s rulers had yielded to Lady Asgill’s pleas to the extent that many felt that “national honor and character” had been “sacrificed to the finer feelings of humanity.” But, as Congress had proven, American Patriots could and ought to be men of both honor and sensibility.³⁶

Washington remained troubled by the affair well after his retirement from the army. In 1785 and 1786, he learned of rumors circulating in London that he had presided over the cruel treatment of Asgill during his captivity. Such stories—which had no basis in fact—had first been told when Asgill had returned to Britain in late 1782. London papers had then described Asgill as “in pretty good health, considering what he has suffered in his confinement. His legs are still swelled with the chains with which he was loaded.” He had also been beaten up by his guard, and “he had the satisfaction to see out of his window, a gallows 80 feet high, with this inscription on it,—For the execution of Capt. ASGILL.”³⁷

When those allegations resurfaced, Washington oversaw the publication of documents in his possession to show that the episode had posed a genuine ethical dilemma for him. He wanted to explain and justify his actions in light of enemy aggression and in the context of the prevailing laws of war. Perhaps most importantly, he wished to deny the gallows story and other allegations of cruelty, and to demonstrate that, throughout, he had been concerned that his captive, a young gentleman of “humor and sentiment,” be treated with “tenderness & every civility.”³⁸

After the war, Captain Asgill and his family made a pilgrimage to the court of Versailles to thank the French king and queen in person. The Asgills were reaffirming the bonds of civility and sensibility that cut across traditional national enmities between European empires. And while London society was still considering rumors of Washington’s cruelty, in Paris the Asgill affair became a literary fashion, with the publication of a sentimental novel as well as poems and plays focusing on Washington’s ethical dilemma of how to balance justice for Huddy and for Asgill. Although Washington lacked the French to read Jean-Louis Le Barbier’s five-act play, Asgill, the retired general and lifelong theater enthusiast thanked the author personally for his dramatic efforts.³⁹

The Huddy episode blurred the boundaries between private sentiment and public affairs. Leaders on both sides faced difficult ethical choices as they judged how to apply the lex talionis in the context of internecine warfare among irregular forces. For Alexander Hamilton, Washington’s longtime aide, both America’s “national character” and Washington’s humanitarian reputation had been at stake. While Lippincott’s court-martial was still in process, Hamilton had argued that retaliation against the innocent Captain Asgill was no longer justifiable, especially once the British had made concessions. Giving in to the temptations of revenge would offend against “the genius of the age” and make America surrender the moral high ground for a “state of barbarism”—at the very moment when her envoys were negotiating with Europe’s leading powers in Paris. It would reverse the hard-won moral superiority the young nation had gained through years of fighting—and of careful rhetoric meant to set America apart from her imperial oppressors. When the Anglo-American peace talks resulted first in a preliminary and then in a final treaty, Hamilton once again sharply critiqued shortsighted, vengeful approaches—only this time the young Patriot war hero defended the Revolution’s American losers.⁴⁰

Thomas Kitchin, Map of the United States in North America with the British, French and Spanish dominions adjoining, according to the Treaty of 1783 (London, 1783). Credit 52