On the evening of May 5 Clinton hosted a dinner for his newly arrived guests.3 Despite the usual boastful toasts, conversation was subdued. Neither the new nor the departing commanders were in a festive mood. From Carleton Clinton wanted news of home, particularly about the Shelburne ministry and the prospects for peace. He may also have wanted to pry from his guests any hints of slander that might have been circulating about him in court circles, in order to prepare himself for attacks upon his character and conduct.
Carleton, on the other hand, probed his dinner companion about the situation in the American colonies. Nothing he heard from the distracted and distraught Clinton could have given him cause for optimism. The general told him that he had issued orders to redeploy troops from Charleston to the West Indies and had published a General Order suspending hostilities against the Americans.4 The enemy, he was quick to add, had yet to respond. Congress, as everyone knew, was close to bankrupt, but the Continental army, despite some agitation, showed no sign of collapse. Washington was at Newburgh, and the French land forces were still in Virginia but preparing, so his spies informed him, to march to Boston to embark for the West Indies. To the north, the British commander Frederick Haldimand reported that thus far he had had little success stirring up the Vermonters to join the king’s forces, and he continued to fear the Americans might attack from the south, going up Lake Champlain.5
Five days later, a second gathering of notables assembled at Roubelet’s Tavern on Cortland Street.6 They had come to bid farewell to General Clinton. One distinguished royal official, however, was conspicuously absent: the chief justice of the province, William Smith. Relations between the justice and the general were cool, having eroded over “the torpor that had clung to Sir Henry.”7 The general had increasingly distanced himself from the loyalists and seemed to think of little but going home to defend his reputation. Despite his disappointment, Smith did see the pathos in the scene. He noted in his diary that Clinton had long served in America. He had arrived at Boston in May 1775 with Generals Howe and Burgoyne and later watched both those unfortunate commanders return home in defeat and shame. Now it was Clinton’s turn. “I pity him in his disgrace,” wrote Smith.8
Pleased to see Clinton depart, Smith welcomed Carleton. Politically, the chief justice was a moderate. In the tumultuous years leading up to the Revolution he had been a friend to the Whigs and spoken in opposition to the unpopular acts of Parliament. He preached against parliamentary taxation of the colonies. John Adams celebrated Smith’s outspoken opposition to the Stamp Act. When rhetoric turned to violent protest and then to revolution, Smith, like many Americans, could not abjure his loyalty to the king. Initially, however, he sought refuge in silence, remaining behind doors at his country estate outside the city while hoping that the tumult would pass him by. For more than two years, 1776–78, Smith kept to his retirement and looked to his friends, including his former law clerk George Clinton, now governor of New York, for protection. Unfortunately for Smith, as tempers rose, not even his past popularity and continuing friendships could shield him from suspicion. In July 1778 the New York commissioners for conspiracies, suspecting his Tory sympathies, summoned him to appear before them. He needed no further warning. Understanding his predicament, Smith declared for the Crown and asked permission to move to New York City.9 Thanks to the influence of friends, with unwonted grace the rebel authorities allowed him to leave unmolested, even permitting him to take along “his household furniture, his library, at least one of his servants, and several horses.”10 General Clinton welcomed Smith into the British camp. He soon became a leading spokesperson for loyalist interests and in 1780 was appointed chief justice of the province, a position of great prominence, but of little actual importance since the city was under military rule and civilian courts were suspended.11
Smith quickly got Carleton’s ear. Before the war the chief justice had advocated for colonial union with a lord lieutenant at the head, on the model of English rule in Ireland. Under such a structure Smith hoped Americans might exercise some autonomy but still remain tucked under the wings of king and Parliament. Smith was desperate to prevent the creation of an independent American republic which would threaten loyalist lives and property. To thwart the rebels, he had gone so far as to suggest to Germain in March 1781 the partitioning of America with France and Spain. European despotism was preferable to rule by American rascals.12 Smith pressed his views with the new commander, even hinting that Sir Guy might make a fitting lord lieutenant.13
General Robertson proffered his own advice. Like Smith and the loyalists, he believed that some sort of victory was still possible. He was confident that the British forces could continue to hold Charleston and that the troops in New York would “defeat any [force] Washington [could] collect.” Robertson’s most pressing concern, however, was not the strength of the enemy but the condition of his own troops. He had earlier warned that “an army confined to a defensive in posts is not only useless but ruinous, an army without the hope of getting back America should not stay in it.”14
Carleton listened but held his opinions close. Smith’s flattering comments and Robertson’s faith in the army notwithstanding, Carleton had come to America on behalf of the king not to wage war but to negotiate peace. To win back the “minds and affections of His Majesty’s American subjects,” Shelburne instructed Carleton “to provide for withdrawing the garrison, artillery, provisions, stores of all kinds … from New York … Charleston and Savannah.” The king, Shelburne informed Carleton, was convinced that “such open and generous conduct [will] captivate their hearts and remove every suspicion of insincerity.” Before Carleton sailed for America Shelburne had in person assured the general that this was his prime mission. Carleton understood that the minister had tasked him as his chief negotiator to end the war in America. He would reunite the empire.15
Once in New York, Carleton wasted no time reaching out to his enemy. Two days after his arrival he sent a conciliatory message to Washington announcing his arrival and his mission of peace. He assured Washington that the “Government and People of England” have a “pacific disposition” toward America, and he hoped that such feelings were reciprocal. In a slight shift of tone Carleton also assured Washington, “If War must prevail I shall endeavour to render its Miseries as light to the People of this Continent as the circumstances of such a condition will probably permit.” Striking next on an oblique angle, Carleton alluded to the fact that there might be some unnamed people on his side who had escaped from “effectual controul which have begot Acts of Retaliation.” They must stand together, he suggested to Washington, “to Preserve the name of Englishmen from Reproach.” He never mentioned Asgill or Lippincott by name. Carleton concluded by asking Washington to grant permission to Morgann to pass through the lines in order to carry important dispatches to Congress.16
Carleton’s four-hundred-word letter, replete with beguiling adjectives, prompted a much shorter and far less fawning response from Washington. In regard “to a late Transaction, to which I presume your Excellency alludes” (that is, Lippincott and Huddy), “I have already expressed my Resolution … from which I shall not recede.” The fact that after seven years of war Sir Guy could embrace Washington as a fellow “Englishman” and suggest that he ought to help redeem the reputation of Englishmen was insulting. Washington no longer considered himself a “Briton.” The American commander in chief shot back that it was the enemy’s conduct that “stained the reputation of Britons,” a comment undoubtedly connected to the Huddy execution.17 Washington concluded on a sharp note. He would not grant a pass to Morgann. Whether such an emissary should be received at all, he noted curtly, was a matter for Congress to decide. Convinced that Sir Guy offered nothing that previous failed peace commissioners had not laid on the table, Washington suspected that the ministry had dispatched Carleton and Digby as a delaying tactic. Washington’s terse reply was followed a few days later by a second notice informing Carleton that Congress had directed him “to
refuse the request of Sir Guy Carleton, of a passport for the passage of Mr. Morgan [sic] to Philadelphia.”18
Time was not on Carleton’s side. He knew that antiwar sentiment was on the rise in Parliament, and that while a majority of members, and most certainly the king, were thus far unwilling to swap independence for peace, their strength was ebbing. The king had given him wide discretion to deal with the Americans, expecting quick progress. As he had just learned from Washington and the Congress, however, the Americans were not receptive to his soft words.19 Quickly, he had to find ways to open communication. For the moment the most serious obstacle standing in his way was the ongoing matter of Richard Lippincott. Until he stepped off the boat at the Battery, Carleton had no knowledge of the nasty affair. Washington’s cold response to him and Congress’s rejection of an emissary, however, left no doubt that this was a festering wound and a jagged obstacle to any communication with the American commander in chief or the Congress.
Huddy’s hanging appalled Carleton. Such conduct ran counter to his notions of the proper conduct of war, and while both sides shouldered shame for this “common Dishonor,” he was consoled by the fact that neither he nor Washington had condoned such vicious violence.20 Partisan irregulars, operating on the fringes of command, bore the guilt and infamy for these acts. Chief among them on the British side were the Associated Loyalists led by William Franklin.
Carleton, like Clinton, found Franklin and his company a tiresome burden. While Carleton sympathized with their loss of property and status, their rising crescendo of complaints and demands, inversely related to the fortunes of British arms, was nettlesome. Clinton passed on his sour opinions to Carleton and undoubtedly warned the new commander about the difficulty of keeping his loyalist charges in check.
Shortly after being briefed on the Lippincott affair, Carleton summoned Franklin and Chief Justice Smith to headquarters. He viewed Franklin as a rogue who had defied authority and gone beyond the bounds of decency. Franklin, disillusioned, disheartened, and feeling abandoned by his country, viewed Carleton as just another careerist general who, like all the others—Gage, Howe, Burgoyne, and Cornwallis—would spend time in America, fail in his mission, and then return home to excuse his conduct and win promotion. Franklin described his first conversation with Carleton as “unpleasant.” It never got any better.21 Carleton and Franklin held a hearty dislike for each other.
Carleton tried to distance himself from Franklin, Lippincott, and the “obnoxious” loyalists. According to his secretary, these men committed “evils” in the name of an “improper institution.” They valued “plunder over pay.”22 Carleton’s first move was to suspend the military court proceedings against Lippincott ordered by Clinton. He then toyed with the idea of simply surrendering Lippincott to the Americans. He quickly drew back from that edge and moved on to explore with Smith the possibility of placing Lippincott in the dock of a civilian court. That, he learned, might not be easy.
Since the British occupation of New York in 1776 the city, and those parts of the province under British control, had been locked down under military authority. Although there had been some pressure to restore at least a semblance of civil government, if for no other purpose than to demonstrate the Crown’s commitment to elected authority, nothing had come of it.23 Civil government could only be reestablished when the commander in chief, acting as peace commissioner, declared the province at peace. Until almost the day of his departure Clinton stood opposed, asserting that the reestablishment of civilian government was window dressing, and its only outcome would be to interfere with his duties as commander in chief.24
Window dressing or not, Carleton was favorably inclined toward restoring civil authority. Restoration, he believed, would placate the loyalists and at the same time be a gesture toward the Americans, testifying to his aim at reconciliation. It would also open a door through which he might send Lippincott to a civilian court. The general was quickly disappointed. Smith advised that if Carleton wished to form a civilian government, he must first call for an assembly. Carleton was perplexed and told Smith that calling elections for a provincial assembly, which would represent only a tiny portion of the province, “would make them all look ridiculous.”25 Smith further agitated the general when he informed him that even if civilian courts were convened, they would have no jurisdiction over the Lippincott case since the crime took place in New Jersey.
Carleton lost patience with Smith, Franklin, and the Associated Loyalists. With no recourse left to him, and with some suspecting that the general was moving from plan to plan trying to “get rid of Lippincott’s affair by Procrastination,” he ordered the court-martial to reconvene.26 He also made up his mind to be rid of the Board of Associated Loyalists. Within a few weeks he suspended the board, a move that neatly coincided with Franklin’s departure for England. Carleton was pleased. He had rid himself of an obnoxious institution and, as Franklin’s biographer describes his subject, “a mongering extremist.”27
On Monday morning June 17 General Robertson, sitting as president, opened the court. He was joined by fourteen other officers, seven of them from loyalist units. Stephen Payne, deputy judge advocate, acted as prosecutor. Lippincott spoke in his own defense. The charge was murder. The central issues were whether Lippincott had acted under orders, and if so, whether those orders were given properly.28
Lippincott opened his defense by asking that the proceedings be stopped since as a civilian the military court had no jurisdiction over him. Robertson rejected the request.29 For the next three days the court heard testimony. The prosecution summoned more than a dozen witnesses, including several loyalist refugees. No one present at the hanging disputed the fact that Lippincott was present and in charge. Beyond that, however, the evidence was murky. Lippincott had not actually kicked the barrel out from under Huddy. That was left to a “Negro” loyalist. The prosecutor asked whether at the time of execution Lippincott had produced any authority for the act. No, said a witness, but “Captain Lippincott and another person had a paper between them; but that paper was not publicly read.”30 Lippincott never produced the “paper.” All agreed the board had given Huddy to Lippincott, and that Governor Franklin approved the action. Whether Franklin and the others realized what Lippincott intended was not provable. For his part, Lippincott argued that they knew and approved of the execution.
For two days the court deliberated in private. On Saturday morning they delivered their verdict.
The court having considered the evidence for and against the prisoner, Capt. Richard Lippincott, together with what he had to offer in his defence; and it appearing that (although Joshua Huddy was executed without proper authority) what the prisoner did in the matter 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, and his not doubting their having full authority to give such orders, the court are of opinion that he, the prisoner, Captain Richard Lippincott, is not guilty of the murder laid to his charge, and do therefore acquit him.31
To Washington’s annoyance, it took Carleton more than two weeks to send him notice of the verdict, by which time the American commander already knew the results of the trial. Adding to the irritation, Carleton failed to send the trial minutes, explaining that they were “long.” He promised that he would “order them to be copied” and send them as soon as possible.32 Carleton’s letter arrived at Newburgh just as Washington was preparing to depart for an official visit to Philadelphia. Irritated at Carleton for not sending the minutes, since he knew Congress would certainly query him on the status of the trial, he left orders with Heath that should the minutes arrive, he was to send them immediately.
Washington distrusted Carleton. On the surface, according to the American commander, the general was trying to “lull our people into a state of security,” but in reality he continued to “seize all our vessels” and suffocate “our Seamen … in Prison ships.” While to the north, General Haldima
nd under Carleton’s direction “(with his Savage Allies) [was] scalping and burning the frontiers.”33
Washington’s ire toward Carleton rose even higher when he returned to Newburgh on July 27 to find a letter from the British commander announcing that after five weeks of delay, the minutes and other documents were ready to be delivered. Ever conscious of his own position and the dignity of the American army, Washington found Carleton’s letter insulting. The British commander requested a “passport” for Chief Justice William Smith and “his Servant or Servants to attend your Excellency with the Minutes of the Court Martial.” Carleton explained that he was sending Smith, a civilian, “to offer such further explanations,” which, he had no doubt, would give Washington “the fullest Satisfaction.”34
That Carleton was sending Smith, a civilian bureaucrat (and a prominent loyalist), was an affront to Washington. In reply he told Carleton, “The Assurance which your Excellency has given me of the fullest satisfaction in this Matter is as pleasing as it is interesting.” He minced no words. The Huddy matter was “Murder,” which he implied needed little explanation. As for who would deliver the court-martial documents, he informed Carleton that he was dispatching “Major General Heath, second in Command, with two Aides-De-Camp” to meet “an Officer of equal Rank at your Excellency’s Appointment.”35 He made no mention of Smith. He then ordered Heath to the rendezvous with explicit instructions to receive the documents and “explanation in Writing.” Should Heath “find that the design of Sir Guy Carleton,” was “to procrastinate this business, to envelop it in as much intricacy and difficulty as possible …, thereby attempting to avert our purposes of Retaliation,” the major general was to “assure him …, if not explicitly, at least by strong inclination,” that he would miss “his Aim.” It was, wrote Washington, entirely in Carleton’s hands to determine “whether the guilty person, or an innocent Officer, shall be made the subject of Retaliation.”36
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