1782 · [Newburgh, N.Y.]
In this powerful letter about two major cases, Washington supports civilian authority, shows frustration over his troops' handling of captured spies – especially a delay in following a habeas corpus
ruling – and expresses steely anger over the British response to the pending execution of young Charles Asgill in retaliation for the murder of American captain Joshua Huddy. GEORGE WASHINGTON.
Letter Signed, as Commander-in-Chief, Continental Army, to Elias Dayton, Headquarters, [Newburgh, N.Y.], June 11, 1782. 3 pp., with free frank signed on address panel on verso of 3rd page. 9 x 14 in. Offered with discount issue of The Columbian Magazine, January, 1787, printing an excerpt of this letter relating to the Asgill Affair, and supporting documents.
Head-Quarters 11th. June 1782.
After writing to you yesterday, your letter of the 8th. came to hand. A Letter from Justice Symes, remanding Mr. Depeyster to be delivered over to the civil power, accompanied yours.
I more and more lament the conducting of this matter. Your knowing that a Habeas Corpus was taken out to rescue the prisoner from the military, ought at least, to have occasioned your delaying to send on Mr. Depeyster, until you had obtained my further Instructions. Some fatality seems to attend this business; & I fear is such as will prevent any thing being effected for the detection of Mr. Depeyster in his Correspondence. On enquiry I can learn nothing of Cadmus, unless it is that he has been so loosely kept, that he is suffered to be taken off, by which means your principal proof will be defeated.
Mr Depeyster is now delivered over to the civil authority of the State that he maybe brought to his trial upon a civil process. It rests therefore upon you & Colo. [Matthias] Ogden to use your utmost industry and vigilance to obtain & produce every Evidence in support of the charge that can possibly be come at—This I shall rely upon.— The paper, said to have been taken from the prisoner, & which you sent to Major General Heath, is now returned to you by Ensign Hopper.
You will inform me as early as possible the present Situation of Captn. Asgill, the Prisoner destined for Retaliation; and what prospect he has of relief from his Application to Sir Guy Carleton, which I have been informed, he has made through his Friend Capt. Ludlow. I have heard nothing yet from New-York in Consequence of this Application. His Fate will be suspended till I can be informed of the Decision of Sir Guy; but I am impatient lest this should be unreasonably delayed. The Enemy ought to have learnt before this, that my Resolutions are not to be trifled with.
I am, / Sir,/Your very humble servant
I am informed that Capt. Asgill is at Chatham—without Guard, & under no Constraint. This if true is certainly wrong—I wish to have the young [Gentle]man treated with all the Tenderness possible, cons[istent wit]h his present Situation—but until his Fate [is] determined he must be considered as a close prisoner—& be kept with the greatest Security— I reque[st]
therefore that he be sent immediately to the Jersey Line, where he is to be kept close prisoner—in perfect Security, till further Orders—
I am as above
NB—this letter was opened after sealing which occasions the appearance of the Seal being Broken
Jo Trumbull Junr Secty
[Address leaf:] public service / Colonel Elias Dayton / Commanding Jersey Brigade / at /
Morristown / [free frank signed:] Go: Washington
[Docket:] From Gl. Washington June 11th 1782
New Jersey resident Pierre Depeyster (b. 1745/1746?), a former New Yorker and wealthy estate and mill owner, had been successfully employed by the British since 1777 to obtain intelligence about American vulnerabilities. On May 26, 1782, Depeyster wrote a report intended for Sir Guy Carleton, giving the locations and condition of various components of the Continental Army, as well as details of Washington's schedule and movements. He also suggested a plan to cripple the nascent Bank of North America. Depeyster's report relayed statements made by financier Robert Morris to one of his contractors suggesting that the Bank was doomed to failure if Congress did not find the money promised for its support. The greatest obstacle to that end was the loss of American income from trade due to Britain's control of the coastline, particularly the Chesapeake and Delaware bays. A French fleet was on its way to break that stranglehold; if the British were to defeat it, the consequences for the Bank would be catastrophic. Depeyster told Carleton that "Mr. Morris points out to you … the very method you are to pursue to destroy the Fabrick that they with so much pains have been creating and are now exerting every nerve to support… Therefore my Dear Sir profit from the advice and [block] up the Delaware and Chesapeake without delay…."
Depeyster's letter was intercepted, and on May 29, he and fellow spy Abraham Cadmus were arrested on suspicion of treason. Washington ordered this letter's recipient, Elias Dayton, to contact New Jersey governor William Livingston to determine if Depeyster could be tried by a military tribunal, in which case he should be brought to West Point. Livingston laid the matter before the state council, which advised him not to interfere with the prisoner, but to send him on to Washington's headquarters. However, New Jersey Supreme Court justice John Cleves Symmes issued a writ of habeas corpus to have him released by the military to be tried by the civil authorities. (Symmes explained in a letter to Washington that Depeyster did not qualify for continued military detention under New Jersey law). Depeyster then had the temerity to write directly to Washington, on June 9, stating that he was being held illegally by the military, and that the judge of the Supreme Court who had heard his case agreed. Washington's response was to the point: "I have received your Letter of this Date. Not having been furnished by Colo. Dayton with Copies of what has passed between him & the Civil powr of your State respectg your Case, I shall suspend all proceedings with you, untill I shall receive those papers, and have already written to Colo. Dayton for them—In the mean Time, you will be indulged to remain in your present Situation."
Washington expressed his annoyance to Dayton in his letter of June 10: "It is extremely painfull to me, to have continually to remark on the irregular manner in which business seems to be conducted at your Post … In a matter of so serious a nature as the Trial of a Citizen for his life, it is certainly necessary that we should be well assured of the legality of our proceedings, and till this is the case nothing can be done in the affair."
Meanwhile, Dayton's letter of June 8 had come to hand. In it, Dayton described the conflicting instructions he had received from Washington, Livingston, and Symmes. "In this Situation I knew not, well what to do," he explained, "but as I had your Excellys Orders to send Mr Depuyster to Genl Heath, in Case Govr Livingston should think proper to submit him to military Tribunal, and as the Writs of habeas Corpus were not directed to me, I tho't myself bound to obey your Excellcys Order & accordingly sent Mr Depuyster under Guard to Genl Heath." Washington's reply, once again confirms his deference to civilian authority, revealing his frustration that Dayton followed Washington's order rather than the court's habeas corpus order.
In any case, news of Depeyster's arrest spread quickly. One account from Philadelphia on June 11 tried to put a positive spin on the Loyalists' targeting of the Bank of North America: "This … tends to shew how anxiously the British are enquiring concerning an institution, the success of which has seriously alarmed them" (reprinted in June 29 issue of Providence Gazette and Country Journal). Robert Morris's diary notes that Washington's aide-de-camp, William Stephens Smith, had called on him on June 11 to deny that dePeyster had an actual report on the "state of the Bank." Still, Morris was still alarmed, and ordered guards placed around the bank.
Depeyster narrowly avoided the hangman's noose, in large part because Cadmus' escape in early June undermined the case, as Washington predicted here. In September, Depeyster escaped from detention and fled by way of New York to England.
The Huddy - Asgill Affair
While that was going on, Washington was embroiled in another serious incident. In March of 1782, Loyalist Philip White died in American custody, purportedly while trying to escape. Rumor spread within the Tory community that he had been prodded with a sword until he ran, and then tortured and mutilated. In retaliation, White's compatriots hung American captain Joshua Huddy on April 12 and put a sign on his corpse reading "Up goes Huddy for Philip White." The fact that Huddy had nothing to do with White's killing, coupled with the insolence of the message, enraged the American public. To head off more reprisals, which might derail the ongoing peace process, Washington sought and received Congressional approval to have a British POW of comparable rank chosen for execution in retaliation. On May 26, 1782, straws were drawn. Captain Charles Asgill's pick read "Unfortunate." If Captain Lippincott was not turned over for trial, Asgill would face the executioner.
Indeed, Asgill could not have been a more unfortunate choice for Washington. A prisoner of war captured at Yorktown, the well-liked 19-year old Asgill was the heir to a large fortune and significant title. His influential British family had ties to America's key ally, France.
Several of Washington's advisors opposed the decision to retaliate. Henry Knox and Alexander Hamilton both asked Washington to rescind the order, worrying that the execution would be seen as a breach of the Yorktown surrender terms. As a fellow signer of the articles of capitulation, Rochambeau, commander of French forces in America, indicated that he considered his own honor, and that of France, at stake. Even Catherine Hart, Huddy's widow, called for mercy.
Exactly a week before the present letter, Washington wrote to Dayton that he "most devoutly" wished that Asgill would be spared. Still, very concerned about British intentions for peace, Washington writes, "The Enemy ought to have learnt before this, that my Resolutions are not to be trifled with."
Fortunately for all, Asgill's execution was stayed as the British held a court-martial of Lippincott. The situation remained unresolved as Lippincott was found not guilty on the basis that he was just following orders, but during the delay Asgill's mother appealed to French king Louis XVI and his wife, Marie Antoinette, who instructed their foreign minister to plead Asgill's case to Washington.
Washington immediately forwarded the correspondence, "without Observations," to Congress by special messenger. He had already told Congressional president John Hanson that it was no longer a military decision, but "a great national concern, upon which an individual [Washington] ought not to decide." After debate, Congress ordered Asgill's release on November 7, 1782. The peace negotiations in Paris that had coincidentally begun the same day Huddy was murdered, were not derailed; a preliminary treaty was signed on November 30th in Paris, with the final Treaty of Paris signed on September 3, 1783.
The Asgill case didn't die there, though. Three years later, Washington heard from James Tilghman that Charles Asgill had been charging mistreatment while awaiting his (ultimately suspended) death sentence.
Washington quickly responded to Tilghman, on June 5, 1786, with his memory of the case. "I had laid my account for the calumnies of anonymous scriblers but I never before had conceived that such an one as is related, could have originated with, or met the countenance of Captn Asgill, whose situation often filled me with the keenest anguish…. My favourable opinion of him, however, is forfeited if, being acquainted with these reports, he did not immediately contradict them. That I could not have given countenance to the insults which he says were offered to his person, especially the grovelling
one of creating a gibbet before his prison window, will, I expect, readily be believed when I explicitly declare that I never heard of a single attempt to offer an insult, & that I had every reason to be convinced that he was treated by the officers around him with all the tenderness & every civility in their power. I would fain ask Captain Asgill how he could reconcile such belief (if his mind had been seriously impressed with it) to the continual indulgencies & procrastinations he had experienced? He will not, I presume, deny that he was admitted to his parole, within ten or twelve miles of the British lines; if not to a formal parole, to a confidence yet more unlimitted, by being permitted for the benefit of his health & the recreation of his mind, to ride, not only about the cantonment, but into the surrounding country for many miles … Did he conceive that discipline was so lax in the American Army, as that any officer in it
would have granted these liberties to a person confined by the express order of the commander in chief, unless authorised to do so by the same authority? And to ascribe them to the interference of Count de Rochambeau, is as void of foundation as his other conjectures; for I do not recollect that a sentence ever passed between that General & me, directly or indirectly on the subject.
I was not without suspicions after the final liberation and return of Captn Asgill to New York, that his mind had been improperly impressed; or that he was defective in politeness. The treatment he had met with, in my conception, merited an acknowledgment. None however was offered, and I never sought for the cause…."
Washington soon realized that he had gone too far in his description. In a September 1, 1786 letter to David Humphreys, Washington corrected the record by noting that his prior account left the incorrect impression that he had agreed with or ordered the "loose and unguarded" holding of Asgill. Having now reviewed the papers, including his letterbook copy of our letter, Washington noted that "one of my letters to Colo. Dayton condemns this conduct, and orders Asgill to be closely confined…"
Elias Dayton, a veteran of the French and Indian Wars and an Elizabethtown merchant, joined the Committee of Safety in New Jersey in December of 1774, and was commissioned a colonel in the New Jersey Line in early 1776. In 1777, he and fellow officer Matthias Ogden set up a loose-knit spy ring for Washington to gather intelligence in the New York/New Jersey area. Dayton was elected as a delegate to the Continental Congress in 1778, but chose to retain his military position and did not attend. In 1783, Dayton achieved the rank of brigadier general. After the war, he remained active in state politics and served as the mayor of Elizabethtown from 1796-1805.
Joshua "Jack" Huddy (1735-1782) grew up in Salem, Mass., where he earned a troublemaker's reputation, with convictions for theft and assault. In 1779, then living in N.J., Huddy became a captain of the Monmouth County militia. He led a number of raids and took many Loyalist prisoners, of whom he was accused of executing more than a dozen. The next year, Huddy became commander of the Black Snake, a privateer. While at home, he was attacked by a group of 25 Loyalists. Huddy and a woman servant held the Loyalists off during a two-hour gun battle. With his house in flames, Huddy agreed to surrender if his attackers put out the fire. He was taken captive and transported by boat on the Shrewsbury River to N.Y. When his boat capsized after Patriots fired on it, the wounded Huddy escaped by swimming to shore. He was now a marked man. On March 24, 1782, a large force of irregulars, the Associated Loyalists (a group led by Benjamin Franklin's son, William, the last colonial governor of New Jersey), assaulted the blockhouse at Toms River that Huddy, then an artillery officer, was charged with defending. Huddy was among those captured. He was first taken to the Sugar House Prison in New York, then transferred in irons to the Britannia,
a British guard-ship off Sandy Hook. On April 12, Loyalist captain Richard Lippincott came on board with orders to have Huddy released into his custody, ostensibly to exchange him for a British officer. Instead, Huddy was brought to the New Jersey highlands, told to make out his will, and hung on the spot. His murder led to the international incident known as the "Asgill Affair."
The January 1787 issue of The Columbian Maganzine, included with this offer, was published by David Humphrey's to respond to criticizm he had heard while in England relating to Washington and the treatment of Asgill. Under Humphrey's cover, the magazine prints extracts of four George Washington letters, the final one being the last paragraph of our letter. A fine engraving of Washington faces the article's beginning. Disbound, and pages separating.
Published: The Writings of George Washington from the Original Manuscript Sources, 1745-1799; Prepared Under the Direction of the United States George Washington Bicentennial Commission and Published by Authority of Congress; John C. Fitzpatrick, editor. 24:329-330.
Seal hole repaired with loss of several words in postscript, below the signature. (Inventory #: 23811)