Head Quarters New York 20th June 1782.
I am to acknowledge the Receipt of your Letter of the 10th of June, with two Enclosures, containing the Report of Chief Justice Brearly, concerning the Capture and detention of Hetfield & Bagely in New Jersey, and Extracts of Letters from your Excellency to Lieutenant General Robertson, and from Governor Livingston to you.
Before I received your Letter I had written to Governor Livingston, concerning the detention of these Men, as also of two others who I am informed are lately condemned in New Jersey, upon some new provincial Law, of High Treason, to suffer Death, and even the Day of their Execution appointed. To this Letter I have as yet received no Answer, but I trust it will be admitted, that Executions upon this Ground, whether with or without the formalities of Law, are Measures of the most fatal Extremity. In a Civil War between People of one Empire, there can during the Contest, be no Treason at all, or each party, assuming the other to be Traitors, shall be able, by the same or different Laws, some made during the very Contest, to effect more Carnage than by the sword, producing the most horrid Refinements in Ill, under the disguise of Law, and one Law no doubt is or can be made as sharp as another, & Chief Justices may be found on both Sides equally sanguine. "Those Men," say the Chief Justice of Jersey in the Report inclosed by your Excellency, "who were charged with high Treason, I committed to Prison. Of this description were the said Hetfield and Bagely, who had joined the enemy long since the passage of the Treason Act, and whose Persons by the Law of Nations are not protected by Flags of Truce." What shall be said Sir, when a Man of Learning, as by his Profession this Gentleman ought to be, can go this Length. Shall those then who oppose the Separation of the whole Empire become Traitors to a part, and be condemned by New Laws even during the Contest, for their Attachment to the Old? And shall the Plea of Sincerity and Conscience, which is the Vindication of some, be yet to others of no avail? I have at present a purpose of establishing a Court of criminal Law in this Town, for reasons which certain difficult Questions have lately pressed upon me, and not, your Excellency may be assured, as an Instrument of Civil War. Yet it is manifest, that if I were capable of making Retaliations in legal Form; either Retaliations must beget each other without End to the disgrace of Humanity, or the local Laws of partial Treason, lately passed in the Provinces must be done away. But I think it impossible we should be of different Minds on this Subject, there must be some mistake in the way which I do not understand. To prevent delay, and the Imperfection of this sort of Explanation, General Robertson, to whom I have communicated you Letters, has voluntarily offered personally to wait on your Excellency, and endeavour to place these Questions for the future, on the Ground of some mutual good Understanding. I am therefore to desire your Excellency’s Passports for this purpose, for Lieutenant General Robertson, An Aid de Camp, and George D. Ludlow Esqr. either to wait on your Excellency, or to meet any other Persons empowered, at any Place you may be pleased to appoint. I am Sir Your Excellency’s Most obedient Servant
DLC: Papers of George Washington.