“A Melancholy Case”

When George Washington deliberately condemned an innocent man to die in the spring of 1782, he fully shared the view of Alexander Hamilton that “a sacrifice of this s of the age we live in. …” Nonetheless, he said, “having formed my Opinion upon the most mature reflexion … I can never recede from it.” By his orders Charles Asgill, a young British officer, would be put to death in exemplary retaliation for the murder of a man he had never seen. He would hang because the British authorities had refused to relinquish the real murderer, who remained in protective custody behind their lines in New York.

For Washington it had been an extraordinary decision, filled with pain and regret, and as he expected, it had caused “some noise in Europe.” But not even the threat that some nations might now withhold their recognition of the United States could persuade him to rescind his orders. “Justice to the Army and the Public, my own Honor and I think I may venture to say universal benevolence ,” he wrote, “require them to be carried into full execution.”

The Asgill affair of 1782 was, as one participant noted, “a melancholy case,” arising out of a curious civil war that had turned New Jersey into a bloody battleground. Now Washington was determined—at the cost of Asgill’s life—to bring order to that troubled state, where violence and terror had ruled from the onset of the Revolution.

In 1776 the Jersey militia had forced Loyalists by the hundred to flee for safety into British-held New York. The Refugees—as the Loyalists called themselves—did not leave willingly, and once gone they returned at irregular intervals in small guerrilla bands to burn, pillage, and kill. Then, in 1780, George III created a Rufugee army under the direction of the Board of Associated Loyalists, headed by William Franklin, Benjamin’s Tory son.

Thereafter, the Refugees mounted more regular attacks on New Jersey’s patriot towns. Soon stories of rape, mutilation, and murder circulated freely in both camps, as what had begun as military raids degenerated into personal vendettas. If many of the stories were simply hearsay, they nevertheless served to enflame already embittered feelings and were used by each side to justify the crudest kind of warfare. Had the fighting not been so personal, the bitterness might have faded with the British capitulation at Yorktown in October, 1781. But the Refugees were not disposed to recognize a British defeat, and the Jersey militia refused to forgive—or forget—the Loyalist raids.

The violence and brutality went on into 1782, marked by a Tory fanaticism that led Sir Henry Clinton, the British commander in chief, to believe that the Refugees intended to prevent “all future reconciliation between Great Britain and the revolted colonies.” As the weeks went by, the situation in New Jersey became a subject of deep concern.

The decisive engagement came on a morning in late March when a band of Refugees overran the outnumbered defenders of Toms River shortly after dawn. By noon they had reduced the town and its salt works to a pile of smoking ruins. By the next day they were back in New York, carrying with them one Joshua Huddy, the captain of the Monmouth County militia and a local hero of considerable renown. Huddy had twice escaped his guards after earlier captures, so this time the Refugees took no chances. They lodged him briefly in their own jail near the waterfront in lower Manhattan; hearing reports that a rescue party might try to free him, they transferred him in irons to the British prison ship Brittania , which was lying off Sandy Hook.

In the meantime a certain Philip White, a determined Tory from Monmouth County, had slipped out of New York to visit his wife, who still lived in New Jersey. Discovered and captured by what remained of Huddy’s men, in a matter of hours he was dead; shot, the militia insisted, as lie tried to escape. Whether or not this was true, in New York the Refugees announced that White had been brutally murdered, his body mutilated almost beyond recognition, and his corpse shovelled into a makeshift grave before his wife could give him decent burial.

The Refugees vowed revenge. “We thought it high time,” a spokesman later told Clinton, “to convince the rebels we could no longer submit to such alarming acts of barbarity.” At about 10 A.M. on April 12 Captain Richard Lippincott and other members of the Board of Associated Loyalists rowed out to the Drittania and, without Clinton’s knowledge, took Hucldy from his British guards on the pretext that he was to be exchanged for a Refugee in an American jail. They carried him handcuffed to the Jersey shore. There on the bank of the Navesink River at Gravelly Point they hastily erected a gallows, using three rails, a barrel, and a rope. Giving Huddy some minutes to write his will (the noose was already about his neck), they strung him up.

He was discovered in late afternoon, hanging loosely in the rope, the will in his shirt pocket, the overturned barrel at his feet. Pinned to his coat was a roughly printed placard that was at once an explanation and a threat: We, the Refugees, have with grief long beheld the cruel murders of our brethren, and finding nothing but such measures daily carrying into execution; we, therefore, determine not to suifer without taking vengeance for the numerous cruelties, and thus begin, having made use of Captain Huddy as the first object to present to your view, and further determine to hang man for man, as long as a refugee is left existing. UP GOES HUDDY FOR PHILIP WHITE .

Cut down and carried homeward, Huddy’s body lay in state at Monmouth Courthouse, while the news of what Washington called “the most wanton, unprecedented and inhuman Murder that ever disgraced the Arms of a civilized people” spread to the world at large. “The first reflection which arises on this black business,” Thomas Paine wrote, “is, what sort of men must Englishmen be, and what sort of order and discipline do they preserve in their army, when in the immediate place of their headquarters, and under the eye and nose of their commander-in-chief, a prisoner can be taken at pleasure from his confinement, and his death made a matter of sport.”

The mourners of Huddy gathered at Monmouth for the funeral in such great numbers that the rites were conducted on the front porch of the inn before the town green. The throng listened in silence to a thundering sermon denouncing the English. When it was over and Huddy had been laid to a hero’s rest, the crowd reassembled in an impromptu town meeting. All the emotion and anger of seven years of war welled up, and in the heat of the moment the men of Monmouth delivered an ultimatum. If George Washington did not offer suitable reprisal for Huddy’s death, they themselves would; in so doing they would “open to view a scene at which humanity itself may shudder.”

As commander of the American forces, Washington had confronted the question of exemplary retaliation on at least two earlier occasions, and both times he had refused to seek an eye for an eye. “Humanity and policy forbid the measure,” he had written in 1777. When the British hanged a South Carolina militia colonel without a trial in 1781, he had wavered momentarily, but then went to some lengths to dissuade General Nathanael Greene from hanging a British colonel in reprisal. Now as he angrily read the ultimatum from Monmouth at his headquarters in Newburgh, New York, he decided that circumstances demanded the practice he loathed. Still, he understood the delicacy of the matter, and not wanting to make the decision alone, he assembled the General Staff.

Some twenty-five officers listened in silence to a reading of the documents. There was no discussion. Then each of them retired to his quarters to draft a written reply. The opinions were nearly unanimous: retaliation, as one of them wrote, was “justifiable and expedient,” both to prevent further Loyalist atrocities and to keep the people of New Jersey from seeking vengeance on their own.

On April 21 Washington sent a brief, almost curt, note to Clinton, demanding that Captain Lippincott, the leader of the hanging party, be delivered up to American hands. “In Failure of it,” he added ominously, “I shall hold myself justifiable in the Eyes of God and Man, for the measure to which I shall resort.”

Clinton, who described himself as “greatly surprised and shocked” at Huddy’s death, replied with some heat that he was blameless for the crime. An inquiry was under way, he wrote, and those responsible would be brought to trial immediately. Nonetheless, whatever his staff turned up, he had no intention of giving Lippincott or any other person into Washington’s charge, because “the Violators of the Laws of War” are best “punished by the Generals under whose Powers they act. …”

The truth is that Clinton had learned about Huddy’s hanging four days before Washington’s letter reached him and was incensed at the brutal crime that had compromised “the dignity of British arms and [his] own command.” Thinking at the time that Lippincott had acted on his own, he had requested the Board of Associated Loyalists to set the record straight. But the board had refused to co-operate, and Clinton, sensing his mistake, brought Lippincott into custody to prevent his escape. He ordered a courtmartial to convene and drastically limited the power of the board to act independent of his authority.

Washington learned of these things during the summer, but by then it was too late. Discouraged by Clinton’s letter, he had written Congress of his plans to initiate retaliation; early in May he learned that its members unanimously approved what he proposed to do. They were, he was told, “deeply impressed with the necessity of convincing the enemies of the United States … that the repetition of their unprecedented and inhuman cruelties … will no longer be suffered with impunity.” They offered “their firmest support.”

Accordingly, on May 3 Washington ordered Brigadier General Moses Hazen, in charge of prisoners of war in Pennsylvania, to select “by Lot” the soldier who would die for Lippincott’s crime. He was instructed to designate “a British Captain who is an unconditional Prisoner, if such a one is in your possession; if not, a Lieutenant under the same circumstances. …——that is, an officer who had surrendered without any special arrangement having been made as to how he would be treated.

Shortly before nine on the morning of May 26 thirteen young British captains, accompanied by a major, rode through the streets of Lancaster, Pennsylvania, up to the Black Bear Inn. To the astonishment of the onlookers who filled the courtyard under the watchful eyes of twenty armed dragoons, the officers moved smartly to the inn’s main door “all chatting and cheerful” as if they were “going to a ball.”

It was, however, a studied casuahiess, for at a tearful dinner the previous night, their senior field officer, Major James Gordon, had told them how Huddy had died for White, and how one of them would now die for Huddy. “I wish to God,” he had said, breaking down, “they would take me in your place.” Regaining his composure, Gordon said he knew this was impossible, but he vowed he would exercise every power he had to save the life of “the unfortunate person … whoever he may be.”

Gordon led the way that morning to a second-floor room at the inn, where Hazen and two other Americans awaited their arrival. Hazen spoke first, haltingly describing the reasons why they were there. He was obviously reluctant to fulfill his orders and immediately asked the assembled men to choose among themselves. Thunderstruck at the suggestion, the British officers unanimously refused. Taking the floor, Gordon argued that they should not be there at all; that the terms of the Yorktown capitulation were being violated: and that, in any case, the thirteen officers were “but a small portion of the Captains of the Army which had surrendered at York Town.” If Hazen insisted on this illegal business, then all the others should be assembled, too. He asked for time to press an appeal.

Hazen’s response was to call his assistants from the room to prepare the lots by which the victim would be chosen. He returned after a short interval, accompanied by two drummer boys who each carried a hat containing slips of paper. In one hat there were thirteen names; in the other, twelve blanks and a slip marked “Unfortunate.” The room was deathly still as first one boy drew a name and the other, a slip.

Ten times the ritual was repeated, and ten times blanks were drawn. Then, on the next draw, the name “Asgill” rang out; the reply came back: “Unfortunate.” There was momentary consternation. Asgill blanched, and whispered, “I knew it would be so. I never won so much as a bet of backgammon in my life.” He faltered, but only for a moment as Major Gordon grasped his shoulder and hissed, “For God’s sake, do not disgrace your colors!”

Hazen turned quickly to a dragoon who had entered the chamber on signal. “This gentleman, sir,” he said, pointing to Asgill, “is your prisoner.”

Captain Charles Asgill, not yet twenty, was the only son of a well-to-do merchant and banker who had once been Lord Mayor of London. “Lively, brave, handsome … an especial favourite of his comrades”—so wrote a fellow officer—he had left school at sixteen to join the army over the protests of his parents. They had offered him £3,000 to remain at home, but the war in America beckoned, and Asgill would not be put off. In less than three years he rose to the rank of captain in the First Foot Guards, serving vigorously until he was taken prisoner at Yorktown. For all of its brevity, his had been a full life, and until this moment he had reason to anticipate a distinguished career.

Now, in the aftermath of the lottery, only tragedy lay ahead. “We gazed upon poor Asgill with a bitterness and intensity of feeling such as defied control,” one captain wrote later. “To see him, as we did at that moment, in the full bloom of youth and beauty, and to know that his days, nay, his hours, were numbered—that was a demand upon the fortitude of those who loved him, such as they could not meet.” No longer feigning nonchalance, those who had been lucky followed the prisoner down the stairs and out into the yard, where they mounted their horses and returned in dismal silence to the camps from which they had come.

Washington had his victim, but he was far from happy with the choice. Indeed, he wrote that he was filled “with the keenest anguish; I felt for him on many accounts.” Not the least was the prospect of hanging so attractive a youth, “a man of honor and sentiment,” as a substitute for “a wretch who possessed neither.”

But there was another issue that, from a diplomatic point of view, seriously complicated an already difficult case. Through error or misunderstanding—Washington was never sure which—Hazen had blundered in his selection of the captains for the lottery. His orders had expressly directed that the choice be made among “unconditional prisoners.” Hazen’s thirteen, however, had all been taken captive at Yorktown, and they were therefore specifically protected by the Fourteenth Article of the Capitulation from exemplary punishment of any kind.

It was on this point that Major Gordon had based his protest that the lottery was illegal. Once Asgill was selected, he reiterated the point in simultaneous letters to Washington, the Congress, and Benjamin Lincoln, the Secretary at War. “I … Demand,” he wrote, “that you will order Captain Asgill … discharged from his Confinement.” But his argument was unavailing. Washington, to be sure, was distressed at the “Direct Violation” of the Yorktown surrender, and he feared the English and other foreign governments might “put an unfavorable Construction upon … our Conduct.” Nonetheless, he ordered Asgill to the prison camp at Chatham, New Jersey (near Morristown), to await execution at a time to be appointed by Congress.

In the meantime he allowed one of Asgill’s companions, Captain George Ludlow, to go to New York to plead directly with the British authorities that Lippincott be surrendered in return for Asgill’s life.

During the month of May the British command had changed, and Washington was hopeful that the new commander in chief might prove willing—as Clinton had not been—to bring Huddy’s murderer to justice. Sir Guy Carleton, who had replaced Clinton, had served as governor of Quebec during much of the war. He had earned a reputation for honesty and fairness; it was widely believed that his diplomatic skills alone had kept Canada on the side of the Crown. His orders, on taking command in New York, were “to conciliate rather than to fight”—a task for which he was much better suited than the ill-starred, querulous Clinton.

In his first letter to Washington, Carleton, in remarkably restrained language, said that he regretted the ” ‘unauthorized’ execution” and urged Washington to relent. He promised to investigate Lippincott’s case with energy—the earlier court-martial had been suspended during the change in command—and in token of his good intentions he released an American lieutenant colonel from confinement. But these and other proposals failed to convince either Washington or the Congress that Asgill should be reprieved.

As Thomas Paine wrote Carleton in a special issue of the Crisis : You disown, or affect to disown and reprobate the conduct of Lippincut, yet you give him a sanctuary; and by so doing you as effectively become the executioner of Asgill, as if you had put the rope on his neck, and dismissed him from the world. … He becomes the corpse of your will, or the survivor of your justice. Deliver up the one, and you save the other; withhold the one, and the other dies by your choice.

But Carleton knew the solution was not that simple. Like Washington he was trapped between his humanity and his duty. If he turned Lippincott over to the Americans, he risked the enmity of the Loyalist population. If he allowed Asgill to die, he risked the deep anger of the regular British troops, who shared Asgill’s reluctance to die for the Refugees’ offenses. (As Asgill himself had put it, in a plaintive letter to Washington, “nor do I know why My Life should be an Atonement for the Misdemeanours of others. …”) By mid-July, particularly in the days following Captain Ludlow’s visit, there had been several street brawls in New York between the British soldiers and the Refugees. As the crisis over Asgill deepened, the likelihood of others grew. Washington, in the meantime, had not pressed for an execution date, in the hope that Carleton’s court-martial would find Lippincott guilty. But that was wishful thinking. Early in August, the Refugee captain was absolved of blame. Using a defense that later generations were to know, his lawyers had convinced a general court-martial that what Liopincott had done “was not the effect of malice or ill will, but proceeded from a conviction that it was his duty to obey the orders of the Board of Directors of Associated Loyalists. …” Carleton concurred with the decision, but in a personal note to Washington pledged to continue the investigation, looking this time at the actions of William Franklin, director of the board. “I mean, Sir,” he said, “to prosecute this Matter, with all the Effect which a due Regard to Justice will admit. …”

Washington, of course, had said that Asgill would hang if Lippincott went free. But such an execution went against his grain. When Major John André, the attractive young British officer who worked with Benedict Arnold, had gone to the gallows as a spy in 1780, the American general had declined to be present at the hanging. Now he was in no hurry to hang an innocent man if some way out could be found. He was ready to grasp at anything, however small, and he detected in Carleton’s note a certain earnestness that might yet save Asgill. The British commander’s promise to investigate Franklin, Washington wrote Congress, “has changed the ground I was proceeding upon, and placed the matter upon an extremely delicate footing.” He believed Carleton was not simply buying time, and therefore requested Congress to grant a further delay of the execution, if only because world opinion reauired it.

For by this time the case had become an international cause célèbre . “The public prints all over Europe resounded with the unhappy catastrophe,” the Baron von Grimm recorded in his Memoirs . It “interested every feeling mind … and the first question asked of all vessels that arrived from any port in North America, was always an inquiry into the fate of that young man.” As Hamilton had warned, there were those who saw the threatened hanging as “wanton and unnecessary,” particularly since the Revolution was all but over. But most of Europe was sympathetic both to the ill-fated Asgill and the conscience-stricken Washington, who was forced to bow to the demands of military justice. And for all of the public denunciations of the American government’s course, there was considerable private optimism that Asgill at the last would be saved.

But as the summer lengthened into autumn, hope everywhere

began to fade. Carleton’s investigation was apparently going nowhere, and pressure mounted on Washington to bring the affair to an end. He had agonized all summer over what he would do when that point came. “Was I to give my private Opinion,” he wrote the Secretary of War in early October, ”… I should pronounce in favor of his being released.” But a public judgment was called for, and Washington complained bitterly that he wished Congress “would chalk a line for me to walk by in this business.” So far they had offered him none. Time was running out; no other solution than death seemed to be at hand.

The Asgill family in England, meanwhile, had had its own summer of despair. The father knew nothing of his son’s tragic state; Sir Charles had sustained a serious heart attack, and his wife had feared the news would be too much. Amelia, the young sister, had taken to her bed, where she remained for days on end, literally sick about the fate of her brother. Lady Asgill had exhausted herself with inquiries to the King, to members of Parliament and the military. But always the answer was the same: nothing could be done.

Since all avenues of help at home appeared to be closed, Lady Asgill, in mid-July, decided upon a desperate move. She addressed an eloquent letter to the Comte de Vergennes, the foreign minister of France. “Let your feelings, sir, suggest and plead my inexpressible misery,” Lady Asgill wrote. “A word from you, like a voice from heaven, will save us from distraction and wretchedness. I am well informed General Washington reveres your character. Say but to him you wish my son to be released, and he will restore him to his distracted family and render him to happiness. My son’s virtue and bravery will justify the deed.”

Vergennes was deeply moved. In an audience with Louis XVI he showed him the letter and then, with the King’s consent, communicated one of his own to Washington. It, too, was eloquent. Vergennes suggested that the King and Queen of France wanted Asgill to live. He was certain, he wrote, that Washington himself wanted to avoid the execution. “If it is in your power, sir, to consider and have regard to it, you will do what is agreeable to Their Majesties. …” Skillfully, he planted the thought that Asgill was “among those whom the arms of the King contributed to put into your hands at Yorktown.” The prisoner, then, belonged as much to Louis XVl as he did to Washington.

It was a seductive idea, and Washington seized on it as the way out of his dilemma. By the time Vergennes’ letter reached the United States, it was late October and the Congress was preparing to debate a resolution ordering Asgill’s immediate execution. Washington sent a courier speeding to Philadelphia, hoping it was not too late.

For what must have seemed the first time in the lengthy affair, Washington’s luck held. A small minority had successfully delayed a vote through three days of argument; the courier entered the chamber on November 7, just as the roll was to be called. Quickly Elias Boudinot, the president of the Congress and a leader of the minority group, read the substance of Vergennes’ and Lady Asgill’s letters to the House. Their contents, he said, were “enough to move the heart of a savage.”

But the sudden appearance of the documents, Boudinot added, “operated like an electrical shock—each member looking on his neighbor in surprise, as if saying ‘here is unfair play.’ ” The Congress was in total confusion, Boudinot reported. “The President was interrogated. The cover of the letters was called for. The General’s signature was examined. In short, it looked so much like something supernatural that even the minority … could scarcely think it real.”

Convinced at last of the authenticity of the letters, Congress voted unanimously that Asgill’s life “should be given as a compliment to the King of France.” He was ordered to be freed and sent home. Thus, Boudinot noted in his Journal , “we got clear of shedding innocent blood by a wonderful interposition of Providence.”

Washington felt a similar relief. On November 13 he sent Asgill a passport to New York, saying in the covering letter that he wanted the young man to know, “I was never influenced thro’ the whole of it by sanguinary motives; but by what I conceived a sense of my duty.”

Asgill, rather ungraciously, made no reply, then or later. He left the prison camp in a rush, without servant or baggage, to catch the next boat to England. He reached New York an hour after the Swallow had sailed. Undaunted—and clearly unwilling to delay his departure any longer—he hired a small sailing vessel and overtook the ship some twelve miles out at sea. He was restored to his family in time for the new year and subsequently went on to an honorable military career, serving as a full general before his death in 1823.

Congress continued to press for action against the Refugees, but that problem disappeared in early December when Carleton at last disbanded the Board of Associated Loyalists. Writing to Washington, the British general said it was his fervent hope that the “acts which have perplexed the course and principles of Justice … may be mutually forgotten.”

It was a common hope, made real by Asgill’s release. And it was, after all, what Washington had wanted from the beginning. “I essayed everything,” he wrote in 1786, “to save the innocent, bring the guilty to punishment, and stop the further perpetuation of similar crimes. …” Still, he had not done it alone, and like Lady Asgill he was forever grateful to the Comte de Vergennes, whose fateful intervention (as she wrote) “changed misery into happiness … and restored the worthiest of sons to the most tender and fortunate of mothers.”