Captain Joshua Huddy is led out of prison to be hanged.

Laws of War | A Neck for a Neck?

By John A. Haymond
Spring 2019 • MHQ Magazine

In 1782, just a few years into its nationhood, the United States was forced to grapple with the issue of revenge as an instrument of war.

IN THE SPRING OF 1782, GEORGE WASHINGTON WAS A MAN IN THE GRIP of a seemingly intractable problem. The war against Britain was finally going well for the Americans, and the British defeat at Yorktown in October 1781 had signaled that American independence would eventually be won by force of arms. But the execution of an American officer by British loyalists threatened to reintroduce an element of bloody vengeance into a conflict already frequently marred by internecine hostility and accusations of atrocity and brutality on both sides. Just as the United States was poised to achieve its creation as a nation of honor and civility, it was forced to grapple with the issue of revenge as an instrument of war.

Even in the 18th century, pure revenge was generally regarded as beyond the pale of lawful warfare. Political leaders had long invoked the idea of revenge in order to rally public support for military action, particularly when some injury to national pride or security could be used to justify vengeance, but formal laws of war took a dim view of the vindictive sentiments in such rhetoric. An act of retaliation might be simple revenge under all the legal language, but the scholars of military law preferred to call it by other names.

Legitimate retribution al­ways had its place in warfare, but even the earliest codifications of military law recognized that acts of retaliation carried with them inherent risks. A tit-for-tat cycle of offense and response might precipitate an endless round of atrocity and retaliation, and with it an abiding mutual hatred. Diplomacy and negotiated settlement would be much harder to achieve in such conflict, creating a situation where fighting continued until one party was virtually annihilated. At the same time, no legal realist was prepared to suggest that an aggrieved nation at war should adopt a policy of saintly forbearance when it was wronged. Lawful warfare was conceived precisely to control the worst excesses of armed conflict and to limit the destructive potential of unrestricted war within the very flawed framework of human nature. The desire for retaliation was an understandable motivation and could even legally be defensible in war but never for the sake of revenge alone. Some acceptable expression of the natural desire for vengeance had to have a place in law.

 

BY THE TIME OF THE AMERICAN REVOLUTION, THIS CONCEPT WAS CODIFIED as the lex talionis—“the law of retaliation grounded in ancient ideas of retributive justice.” On its face it was perhaps rough justice, in that it allowed one belligerent party to answer an enemy’s illegal act or atrocity with a similar act, but the intent was clear. The act of retaliation had to be explicitly linked to the act of provocation: a hostage shot for a hostage hanged, a town burned for a town destroyed, and so on. Such speedy retaliation was thought to have a deterrent effect not offered by any form of resolution after the war.

Washington’s problem was simple in its details but fiendishly complicated in its development. On April 12, 1782, a group of loyalists under the command of Captain Richard Lippincott hanged a prisoner of war named Captain Joshua Huddy at Highlands Beach, New Jersey. The act was explicitly one of retaliation: When Huddy’s corpse was left hanging from the makeshift gallows, it was adorned with a placard stating that his execution was in response to previous executions of loyalist prisoners in Continental hands, specifically that of a man named Philip White. “We therefore Determine not to Suffer without taking Vengeance,” the placard read, “and thus begin and have made use of Captn Huddy as the First Object.” The loyalists stated their intent to “Hang Man for Man,” and concluded “up goes huddy for philip white.”

In the closing months of the war between Great Britain and its former colonies, the incident could not have come at a worse time for those in both countries who were seeking a negotiated end to the conflict. News of Huddy’s execution led to public outrage in the northeastern colonies, where newspapers and broadsides denounced the act—one branded it a “horrid and most unparalleled Murder”—while omitting the fact that loyalists had also suffered at the hands of the patriots. They insisted that White’s death, cited as the reason for Huddy’s execution, was not the unlawful execution of a prisoner of war but was rather the legal killing of a prisoner who had attempted to escape. They pointed to the precepts of lex talionis and demanded vengeance.

The matter quickly became an issue of official correspondence between opposing commanders. Washington wrote to his counterpart on the British side, General Henry Clinton, and threatened to authorize a response in kind if the officer responsible for Huddy’s death was not handed over to Continental authority for legal prosecution. “To save the innocent, I demand the guilty,” he wrote, making it clear that if he could not punish Lippincott himself, some other person would pay the price.

 

CLINTON WAS NOT INSENSITIVE TO THE PROBLEM, but neither was he inclined to relinquish British legal authority in the matter. As Clinton pointed out in his reply to Washington, a board of inquiry composed of British officers had already investigated the incident and found sufficient cause to court-martial Lippincott. Clinton insisted that he had not authorized Huddy’s execution, saying that such “acts of cruelty and persecuting violence are notoriously contrary to my own conduct and disposition (having never yet stained my hands with innocent blood).” He then warned Washington against allowing public sentiment to force a military response that might lead to greater wrongs. “To Sacrifice Innocence under the Notion of preventing Guilt, in Place of suppressing,” he wrote, “would be adopting Barbarity and raising it to the greatest height.”

Clinton proceeded with a court-martial against Lippincott. In June 1782, under the authority of General Sir Guy Carleton, who replaced Clinton as commander in chief of British forces, Lippincott was charged with the murder of Huddy, “a Prisoner of War to the Associated Loyalists, by hanging or causing him to be hanged by the Neck until he was dead.” That was not enough to mollify those on the patriot side who demanded blood for blood, and calls for some form of immediate reprisal mounted.

As a professional soldier, Washington was probably inclined to let the matter rest in British hands, at least until the court-martial produced its result. After all, if he required the surrender of a British soldier for a war crime, he might very well face the same situation in reverse later. And as details that emerged in Lippincott’s trial soon
made clear, Huddy was perhaps an appropriate candidate to be sacrificed under lex talionis. He had earlier hanged several British loyalists in incidents of debatable legality,
and so the “man for man” spirit of his own execution seemed justified.

Washington, however, was not free to follow his own inclinations. Outside pressure, both political and public, required a more immediate response. He therefore ordered that a British officer currently in American hands as a prisoner of war be selected to pay for Huddy’s death if the British did not sentence Lippincott to hang. Mindful of the protocols of war, Washington ordered that the man chosen should be one who had been captured on the field of battle, who was not therefore protected under the framework of a conditional surrender. No such individual could be identified, however, so the Americans improvised. At the prisoner of war camp in Lancaster, Pennsylvania, 13 British officers held after Cornwallis’s surrender at Yorktown were assembled and ordered to draw lots. The British soldiers refused, citing their rights under the laws of war, so the lots were drawn for them. The unfortunate man (the paper drawn for him was actually marked “unfortunate”) was Captain Charles Asgill, a young officer in the 1st Foot Guards.

Rather than providing a solution, Asgill’s selection as the object of American vengeance only gave Washington more problems. Asgill himself immediately wrote to Washington in protest, pointing out that an act of reprisal against him was a violation of the agreement under which British forces had surrendered at Yorktown. He was correct, and Washington knew it. “I am deeply affected with the unhappy Fate to which Capt. Asgill is subjected,” he wrote, but he still insisted on some measure of retribution for Huddy’s death. Washington was by no means alone. The renowned patriot pamphleteer Thomas Paine insisted that Carleton was the moral agent in this drama, writing that if he did not surrender Lippincott to American justice, the British commander would bear the ultimate responsibility for Asgill’s fate “as if you had put the rope on his neck.” When Lippincott was acquitted by the British court-­martial on June 22, it seemed that Asgill was doomed.

Other observers feared the legal controversy might derail the slow steps toward a peaceful resolution to the conflict that were already underway. The British prime minister, Frederick North, 2nd Earl of Guilford, in a secret dispatch to Carleton, wrote of his concern that the matter “not provide an obstacle in the way of accommodation.” An anonymous writer in England insisted that an execution to avenge an execution would be “highly impolitic and improper,” calling it a “horrid course.” Carleton needed no argument in that direction; he said he believed that revenge under the thin veil of laws of war would only “lead to Evils and Misfortunes of the blackest and most pernicious Sort.”

If the question of Asgill’s fate had earlier left Washington between a rock and a hard place, now, following  Lippincott’s acquittal, he seemed to have a way out. Washington was willing—indeed, eager—to consider the sentiments of Americans like James Duane, a lawyer and Revolutionary leader from New York, who urged him to conclude the war “with the Humanity which a benevolent Religion, civilized manners, and true military Honour inspire.” His reluctance to adhere to the “man for man” code of vengeance and the eventual lessening of the public’s demand for blood reprisal proved to be Asgill’s salvation. In November the Continental Congress approved Asgill’s release. John Adams, one of the American emissaries in France, wrote that it was “so exquisite a relief to my feelings,” adding that “it would have been a horrid damp to the joys of peace” had the young British officer been hanged as threatened.

Washington wrote to Asgill personally, telling him that resolving the matter “without the effusion of the Blood of an innocent person is not a greater relief to you than it is to [me].” Since Asgill’s life was the one in peril, Washington’s words were perhaps a bit dramatic, but there is little doubt that the outcome was the one he had fervently hoped for.

The ancient idea of lex talionis was not invoked with such fervor in later American wars, but it had an echo in the Civil War. In 1864 Confederate colonel John Mosby executed three Union army soldiers in retaliation for the earlier execution of six of his men at Fort Royal, Virginia. He then wrote to Union major general Philip Sheridan and proposed that both sides resume treating each other’s captives as prisoners of war under protection of the laws of war. Sheridan agreed, and such acts of reprisal remained rare throughout that war.

John A. Haymond is the author of The Infamous Dakota War Trials of 1862: Revenge, Military Law, and the Judgment of History (McFarland & Company, 2016).

This article appears in the Spring 2019 issue (Vol. 31, No. 3) of MHQ—The Quarterly Journal of Military History with the headline: A Neck for a Neck?

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