“A Melancholy Case”

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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.