er; but
Balfour stated, that "it took place by the joint order of Lord Rawdon
and myself, in consequence of the most express directions of Lord
Cornwallis to us, in regard to all those who should be found in arms,
after being, at their own request, received as British subjects."
Now, although Lord Cornwallis, when flushed with victory, issued cruel
orders; yet it is not to be presumed he acted the tyrant so far as to
communicate private orders to Rawdon and Balfour; but the only case in
which his public orders directed a capital punishment, is the following:
"I have ordered in the most positive manner, that every militia man,
who has borne arms with us, and afterwards joined the enemy, shall be
immediately hanged." But it was never pretended that Col. Hayne had
borne arms with the British; when he submitted, he expressly stipulated
with Gen. Patterson, that he was not to do so; and when, notwithstanding
such stipulation, he was called upon for that service, he positively
refused, although threatened with confinement. Besides, both Moultrie
and Ramsey assert he did not serve with the British; and as far as
negative proof can go, this should be conclusive. But the fact that he
bore arms with the British is not charged against him; his accusation
was, "being at his own request received as a British subject." Then
Col. Hayne neither came within the letter, nor the penalty of the order
issued by Lord Cornwallis; and his blood rests upon the heads of Rawdon
and Balfour. A fair state of the case is, that Col. Hayne had been
considered by the British a character of great influence, and after the
fall of Charleston, having applied to Gen. Patterson, then commandant,
for a parole, he was refused one, and was threatened with confinement if
he would not subscribe a declaration of allegiance. Under the influence
of this threat, by the advice of friends, and the stipulation above
stated, he was induced to sign the declaration; and he was now tried
for a breach of his allegiance. Lord Cornwallis punished for breaches
of parole, but this was a new charge, made by Rawdon and Balfour
themselves. But Hayne's signature to that instrument, had been obtained
by duresse, and the part of the country in which he lived had been for
several months in the possession of the Americans, and the British
were unable to protect him in his allegiance. These, and no doubt other
grounds, might have been alleged in his defence, but he was at first
promised,