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was alternately in the possession of the opposing parties, and though he had honorably fulfilled his engagements towards the British Government, yet from a very natural suspicion, that as his heart was known to be with his countrymen, it could not be long before his hand would be raised in their cause, Colonel Hayne was now peremptorily required to repair immediately to the British standard. The fact, that this requisition was actually made, rests on authority which cannot be doubted, and now finding himself released from all obligations to those who had thus openly violated the express contract, by which it was stipulated that he should never be called upon to bear arms against his country, as well as the implied condition which secures allegiance to a conquering party, only while protection is afforded, Colonel Hayne repaired with a few of his neighbours to the American camp, and commenced at once, those military operations, which terminated in his being captured, and brought to Charleston. Here, Colonel Hayne was committed a close prisoner to the provost, where he remained for several weeks, and until Lord Rawdon came to town; he then received from the Town-major the following note:

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"SIR-I am charged by the Commandant to inform you, that a Council of General Officers will assemble to-morrow at ten o'clock, in the Hall of the Province, to try you. I am, &c.

"C. FRASER, Major of the Town."

On the next day, he received another note, of which the following is a copy:

"To Mr. Hayne."

"Thursday Evening, 27th July, 1781.

SIR-I am ordered by the Commandant to acquaint you, that instead of a Council of General Officers, as is mentioned in my letter of this morning, a Court of Inquiry, composed of four General Officers and five Captains, will be assembled to-morrow at ten o'clock, in the Province Hall, for the purpose of determining, under what point of view, you ought to be considered.

You will immediately be allowed pen, ink and paper; and any person that you choose to appoint, will be permitted to accompany you as your counsel, at the same hour and place. I am, &c.

"C. FRASER, Major of the Town."

Before this Court he was accordingly taken. Of the proceedings before that Board, Colonel Hayne, in his letter to Lord Rawdon and Colonel Balfour, gives the following account : the correctness of which has never been questioned.

'Having never entertained any other idea of a Court of Inquiry, nor heard of any other being formed of it, than of its serving merely to precede a Council of War. I did not take the pains to summon any witnesses, though it would have been in my power to produce many; and I presented myself before the Council, without any assistance whatever. When I was before that assembly, I was further convinced that I had not been deceived in my conjectures; as I found that the members of it were not sworn, nor the witnesses examined upon oath; and all the members, as well as every other 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 any affair, on which my life and death depended. Neither do I believe, that the members themselves, had any idea of that sort."

The day after the Court had closed its proceedings, Colonel Hayne received a notice in the following words :

To Mr. Hayne, in the Provost's Prison.

MEMORANDUM.

"Sunday, 29th July, 1781.

"The Adjutant of the Town will be so good as to go to Colonel Hayne in the Provost's prison, and inform him, that in consequence of the Court of Inquiry held yesterday and the preceding evening, on his account, Lord Rawdon, and the Commandant, Lieutenant Colonel Nesbit Balfour, have resolved upon 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, though he had become a subject, and accepted the protection of that Government, after the reduction of Charleston.

"(Signed,)

C. FRASER, Major of the Town."

And though he was respited for forty-eight hours, in order to permit him to see his children, and on account, (as it is expressly stated in the order of reprieve) of the "humane treatment shewn by him to the British prisoners who fell into his hands;" yet, Lord Rawdon and Colonel Balfour remained inflexibly resolved that he should expiate his supposed offence on the gibbet, and he was accordingly executed on the 4th of August, 1781. The fortitude with which he conducted himself on the trying occasion, and the noble example which he exhibited in death, are all recorded by the historian of Carolina, in language worthy of the subject.*

We will now proceed to inquire into the justice and legality of the proceeding, of which, the subjoined note gives so touching an account; and, after a very brief vindication of the conduct of Colonel Hayne, will examine the arguments of the Earl of Moira, and dispose of them as well as we may. Colonel Hayne's conduct, in taking up arms, it appears to us, is susceptible of a very easy justification. He set out with the determination, "under no circumstances whatever, to bear arms against his countrymen." That determination he had made known to Dr. Ramsay, and had avowed to the face of the British officers at the time he entered into the compact. When in open violation of the clear understanding of all the parties to that compact, he was required to take up arms; he was released, at once, from all his obligations. It was precisely one of those contracts in which its violation by one of the parties left no redress to the other but

* The following is the brief and pathetic description, given by Dr. Ramsay, of the melancholy event.

"After Colonel Hayne's fate was fixed, he was repeatedly visited by his friends, and conversed on various subjects with the fortitude of a man, a Philosopher and a Christian. He particularly lamented that, on principles of reciprocal retaliation, his execution would probably be an introduction to the shedding of much innocent blood. His children, who had lost their other parent, were brought to him in the place of his confinement, and received from his lips the dying advice of an affectionate father. On the last evening of his life, he told a friend, 'that he was no more alarmed at the thoughts of death than at any other occurrence which was necessary and unavoidable.' He requested those in whom the supreme power was vested, to accommodate the mode of his death to his feelings as an officer; but this was refused. On the morning of the fatal day, on receiving his summons to proceed to the place of execution, he delivered the annexed papers to his eldest son, a youth of about thirteen years of age. Present,' said he 'these papers to Mrs. Edwards, with my request, that she would forward them to her brother in Congress. You will next repair to the place of execution-receive my body, and see it decently interred among my forefathers.' They took a final leave. The Colonel's arms were pinioned, and a guard placed round his person. The procession began from the Exchange, in the forenoon of the fourth of August, 1781. The streets were crowded with thousands of anxious spectators. He walked to the place of execution with such decent firmness, composure and dignity, as to awaken the compassion of many, and to command respect from all. There was a majesty in his sufferings which rendered him superior to the pangs of death. When the city barrier was passed, and the instrument of his catastrophe appeared full in view, a faithful friend by his side observed to him "that he hoped he would exhibit an example of the manner in which an American can die.' He answered, with the utmost tranquillity, 'I will endeavour to do so.' He ascended the cart with a firm step and serene aspect. He inquired of the executioner who was making an attempt to get up to pull the cap over his eyes, what he wanted? Upon being informed of his design, the Colonel replied, 'I will save you that trouble,' and pulled it over himself. He was afterwards asked, whether he wished to say any thing, to which he answered, 'I will only take leave of my friends, and be ready.' He then, affectionately, shook hands with three gentlemen-recommended his children to their care-and gave the signal for the cart to move. Thus fell, in the bloom' of life, a brave officer, a worthy citizen, a just and upright man. Furnishing an example of heroism in death that extorted a confession from his enemies, 'that, though he did not die in a good cause, he must, at least, have acted from a persuasion of its being so."

in the abandonment of all its provisions. It is idle to suppose that he ought to have repaired to Charleston and humbly besought, as Lord Moira suggests, the interposition of Colonel Balfour. He had once before tried a similar experiment, and knew too well how little reliance was to be placed either on his justice or humanity, to trust to that security. We apprehend, that unless he had consented to surrender himself, bound hand and foot, to his persecutors-unless he was prepared to expose himself to the living death which assuredly awaited him in the prison-ship, he had no alternative, at this crisis, but to take up arms with his countrymen-and sure we are, that if Colonel Hayne could have anticipated, with certainty, the fate which awaited him, such anticipation would not have swerved him from his course. We are greatly mistaken, indeed, in the character of the man, if he had not long before resolved to embrace death in any shape, rather than raise a paricidal arm against his country. Colonel Balfour in his letter to General Greene, relies on a principle in aggravation of the supposed offence of Colonel Hayne, which, when properly considered, affords, we think, of itself, a sufficient justification for his conduct. "I must conceive," says Colonel Balfour ("without adverting to the particular cause of dispute between Great-Britain and this country) that on the subjection of any territory, the inhabitants of it owe allegiance to the conquering power, (in the present case, a voluntary acknowledgment was given, and consequent protection received ;) and that, on any account, to recede from it, is justly punishable with death, by whatever law, either civil or military, is then prevalent." Now, if it was true that the conquest of the country, including Colonel Hayne's residence, bound all its inhabitants in fresh bonds of allegiance to Great-Britain, then the questions which have been raised relative to the rights and duties of a "prisoner on parole," as well as the obligations imposed by taking protection," are all absorbed by another, and that a plain matter of fact, whether the same country had not been reconquered before Colonel Hayne repaired to the American camp. General Greene well remarks, in his reply to Colonel Balfour, "you observe that the inhabitants of every co country at war, owe allegiance to the conquering power. The right of conquest, from partial success, is often made use of to levy contributions, but I believe there are no instances where the inhabitants are punished capitally for breach of parole, given under such circumstances, especially while the two parties are contending for empire;and this act of severity complained of, is the more extraordinary, as you had long lost that part of the country, and upon your own principles the inhabitants owed allegiance to the conquering power." General Lee insists upon the same thing, and even supposing the question of the re-conquest to be doubtful, no one would pretend to justify the extreme rigour, which should punish as a capital offence, an act of which it was so difficult to determine, whether it was an act of duty or a crime. On this point the Earl of Moira prescribes for the British officers a rule of conduct which must, under all circumstances, have relieved them from embarrassment. They set out, we have seen, with the principle, that the conquest of a country, binds the inhabitants, ipso facto, in the bonds of allegiance they assume to themselves to judge, that a part of South-Carolina was conquered after the fall of Charleston, in 1780, and that, therefore, all the inhabitants residing there owed allegiance to the conquerorsbut when it is alleged by the American officers that, according to the same rule, the country having been re-conquered in 1781, the inhabitants were released from their allegiance to the British Government, the Earl of Moira insists, that though the fact might have been so, it was not for British officers to acknowledge its existence, or "to act upon any personal conceptions of the sort;" in other words, the rule laid down by themselves was to be so applied as to operate at all times and under all circumstances, only in their own favour. We should also contend, that in an invaded country, no part could be considered as conquered while any part remains unsubdued, nor in the case of the United States, while there was an army in the field, in a single State in the Union. But if partial conquests were to weigh any thing, then it is clear that the part of the country in which Col. Hayne resided, was, at the moment he took up arms, in the actual occupation of the American troops. Having now got rid entirely of every matter which concerns the character of Colonel Hayne as a patriot and a man of honor, we come, finally, to consider the legal defence set up on the part of those by whose orders the execution was perpetrated.

The ground on which Lord Moira now attempts to justify the execution of Colonel Hayne, is, that "he was, from his correspondence with the enemy, while within our (the British) posts, A SPY, in the strictest sense of the word;" and he therefore insists "that nothing was requisite in his case, but to identify his person, previously to hanging him on the next tree." 'The bold manner in which this charge is brought forward, near forty years after the transaction occurred, and the easy confidence with which the Earl of Moira relies upon it, as conclusive of the question, affords a stronger illustration than we remember ever to have come across, of the facility with which men invent excuses for an act after it is done, which formed no part of the motives to its

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