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The People's Property Law: A Step Toward Building a New Legal Order in Revolutionary New York

Abstract

Like revolutionaries throughout the modern world, Americans built a new, stable legal order on property confiscated from their enemies. Early in the American War for Independence, colonial governments collapsed, British courts closed, and ordinary people took the law into their own hands. They created committees that enforced harsh, revolutionary justice. But remarkably, by the end of the War, they were able to develop the stable legal institutions of new governments.

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h-pashman@law.northwestern.edu
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1. Historians have examined circumstances in which small groups of American colonists gathered because they had an issue that they wanted formal authority to address. Such crowds might gather to redress what they believed were unfair commercial practices, or to punish an offender when local officials seemed unwilling to do so. But whatever their precise motives, colonial crowds were in a conversation with established authority about the correct enforcement of law. This literature includes Thompson Edward P., “The Moral Economy of the English Crowd in the Eighteenth Century,” Past & Present, 50 (1971): 73136; Maier Pauline, From Resistance to Revolution: Colonial Radicals and the Development of Resistance to Britain, 1765–1776 (New York: Knopf, 1971); Gilje Paul A., Rioting in America (Bloomington and Indianapolis; Indiana University Press, 1996); and Young Alfred F., “American Historians Confront ‘The Transforming Hand of Revolution,’” in The Transforming Hand of Revolution: Reconsidering the American Revolution as a Social Movement, ed., Hoffman Ronald and Albert Peter J. (Charlottesville and London: University Press of Virginia, 1996). However, during the Revolution, that established authority broke down and crowds were no longer trying to redress local grievances against specific wrongdoers such as predatory grain merchants. They were challenging the basis of imperial government. Edward Countryman has demonstrated that in the context of New York, the committees that appeared in 1774–1775 were fundamentally different from colonial mobs in two respects. First, committees purposefully resisted British authority, which gave their actions a more consciously political character than colonial crowds had possessed. Second, the committees enjoyed a network of support that stretched from New York out to other provinces. Therefore, committees, for the first time, had both political goals and the broad support network to pursue them. No tenant uprising, posse, parade, or jail rescue from the colonial period had both characteristics. Countryman Edward, A People in Revolution: The American Revolution and Political Society in New York, 1760–1790 (Baltimore and London: The Johns Hopkins University Press, 1981), ch. 2 and 5. Other historians have supported the view that, despite superficial similarities between colonial and revolutionary crowds, popular action during the Revolution “departed in significant ways from European or colonial precedents.” Smith Barbara Clark, “Food Rioters and the American Revolution,” The William and Mary Quarterly, 3d Ser., 51 (1994): 23. For a thorough analysis of how revolutionary committees developed broad networks that mobilized the public for political action, see Breen T.H., American Insurgents, American Patriots: The Revolution of the People (New York: Hill and Wang, 2010).

2. During the Revolution, all states enforced some form of property confiscation as they tried to establish independent legal institutions. Therefore, New York's example represents a broader American experience of redistributing property at the time when they rebuilt legal structures. Referring to the ubiquity of confiscation laws, one historian has described how the “statutes are so numerous, so encompassing, and so detailed that they reveal a systematic attempt to stigmatize the loyalists, to take their property, to tax what remained, and to force them to settle their debts cheaply.” Hulsebosch Daniel J., “A Discrete and Cosmopolitan Minority: The Loyalists, The Atlantic World, and the Origins of Judicial Review,” Chi.-Kent Law Review, 81 (2006): 835.

3. I have been greatly influenced by scholars such as Ethan H. Shagan whose work explores how plundering monastic property in England allowed ordinary people to strengthen a revolutionary movement. See Shagan Ethan H., Popular Politics and the English Reformation (Cambridge and New York: Cambridge University Press, 2003).

4. Historians have examined Loyalists, both in New York and other states, who lost property through this expropriation. Such studies––often based on compensation claims filed with the British government after the War––search for a correlation between Loyalist beliefs and social characteristics. They explore whether a high correlation existed between Scottish immigrants and Loyalism, or whether Anglicans were more highly correlated with Loyalism than were Baptists. Brown Wallace, The King's Friends: The Composition and Motives of the American Loyalist Claimants (Providence: Brown University Press, 1965); and Brown Wallace, The Good Americans: The Loyalists in the American Revolution (New York: William Morrow, 1969). For a discussion of who became Loyalists, their geographic distribution, and their possible motivations for supporting the Crown, see Calhoon Robert C., The Loyalists in Revolutionary America: 1760–1781 (New York: Harcourt Brace Jovanovich, 1965). Mary Beth Norton examined the communities of Loyalist exiles in The British-Americans: The Loyalist Exiles in England, 1774–1789 (Boston: Little, Brown, 1972). In the context of New York and New Jersey, one historian has found a high correlation between unassimilated Dutch––those who did not learn English or become evangelicals during the Great Awakening––and Loyalism. Middlekauff Robert, The Glorious Cause: The American Revolution, 1763–1789, rev. ed. (New York: Oxford University Press, 2005), 564–65. Although this article analyzes the expropriation of such people, it asks different questions from those that have concerned scholars of Loyalism. Rather than explore the connections between demographic characteristics and possible motivations for Loyalism, this article asks how confiscation helped insurgents rebuild legal order in a revolutionary moment.

5. Bernard Bailyn has explored this tension between, on one hand, the conscious designs of the people in the past and, on the other, broad social changes that they only dimly perceived. Bailyn Bernard, “The Challenge of Modern Historiography,” The American Historical Review, 87 (1982): 124.

6. Nelson William E., The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, MA: Harvard University Press, 1994); Horwitz Morton J., The Transformation of American Law, 1780–1860 (Cambridge, MA: Harvard University Press, 1977); and Friedman Lawrence M., A History of American Law (New York: Simon and Schuster, 1973).

7. Kramer Larry, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004); Fritz Christian G., American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge: University of Cambridge Press, 2008); Reid John Phillip, Constitutional History of the American Revolution, 4 vols. (Madison: University of Wisconsin Press, 1986–1993); Hulsebosch Daniel J., Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005); and Wood Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1998). The debate over how many constitutions existed in the British Atlantic, their sources, and how they interacted was the subject of a forum section titled Constitutions on Edge: Empire, State, and Legal Culture in Eighteenth-Century New York,” Law and History Review, 16 (1998): 257401.

8. The work of Stephen Holmes has shaped my thinking on the importance of these legal structures during moments of upheaval. In examining liberal political thought, Holmes has argued that rights cannot exist in a society that lacks a settled state. When governments become weak or fail entirely, “rights can be imagined but not experienced.” Without legal structures such as courts, abstract rights to personal security or property vanish because there is no institutional framework for guaranteeing them. Holmes Stephen, Passions & Constraint: On the Theory of Liberal Democracy (Chicago and London: University of Chicago Press, 1995), 19.

9. Quoted in Clark Jonathan C., “A Government to Form: The Story of Dutchess County and Political Upheaval in Revolutionary New York,” in From English Colony to Sovereign State, ed. Johnson Emily (Millbrook, CT: Dutchess County American Revolution Bicentennial Commission, 1983), 50.

10. There are no minutes for any session between September 1777 and October 1778. See New York Supreme Court of Judicature Minute Book, July 25, 1775–April 28, 1781 (engrossed), New York County Clerk, Hall of Records, New York, NY. However, The New-York Journal, and the General Advertiser from August 10, 1778 referred to a July session of Court that met in Albany and the Supreme Court's minutes from April 23, 1779 refer to a session that met in April 1778. However, neither of these sessions appears in the engrossed minutes.

11. For courts' schedules and their short dockets, see Minutes of the Court of General Sessions and of Common Pleas, Liber E 1771–1774; Liber F 1775–1781; Liber G 1782–1785, microfilm reel #127, Dutchess County Clerk's Office, Poughkeepsie, NY. Westchester County Minutes of the Court of Common Pleas, Series 9, A-0010 (1)L, volume labeled 1774–1793, Westchester County Archives and Records Center, Elmsford, NY. Albany Court of Common Pleas, 1763–1799, series 87-09085; Minutes of Court of Sessions, 1685–1689, 1717–1723, 1763–1782, and Canvass of Voters 1820, Albany County Hall of Records, Albany, NY.

12. One historian has recently described colonial New York as “a world in which law was first and foremost procedural,” a place where “legal culture was keyed to law-making and law-enforcing institutions; those are the backbone of its history. Courts and legislatures were the most important” of those institutions. Hulsebosch, Constituting Empire, 11. Such a view, although true for the colonial period, leaves one struggling to understand legal order in a society that has lost its backbone.

13. For an exploration of the benefits of examining law from an anthropological perspective, see Rosen Lawrence, Law as Culture: An Invitation (Princeton and Oxford: Princeton University Press, 2006). For a historical study that combines historical and anthropological methods to great effect, see Penningroth Dylan C., The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 2003). Oliver Wendell Holmes, Jr. suggested close parallels between law and anthropology when he wrote that “it is perfectly proper to regard and study the law simply as a great anthropological document.” Holmes, “Law in Science and Science in Law,” Harvard Law Review, 12 (1899): 444.

14. Wood, Creation of the American Republic, part 2; Kramer, People Themselves, ch. 2; and Fritz, American Sovereigns, ch. 3.

15. New Yorkers struggled to build a stable civil society long after the war ended. For an examination of how a broadly participatory civil society emerged in the generation after the war, see Brooke John L., Columbia Rising: Civil Life on the Upper Hudson from the Revolution to the Age of Jackson (Chapel Hill: University of North Carolina Press, 2010). Moreover, many states, not just New York, continued to suffer vigilantism and popular violence long after the Revolution. See Pfeifer Michael J., Rough Justice: Lynching and American Society, 1874–1947 (Chicago and Urbana: University of Illinois Press, 2004). Pfeifer traced the story back into antebellum America in The Roots of Rough Justice: Origins of American Lynching (Chicago and Urbana: University of Illinois Press, 2011). For an analysis of the relationship between formal state institutions and popular justice after the adoption of the federal Constitution, see Dale Elizabeth, Criminal Justice in the United States, 1789–1939 (Cambridge: University of Cambridge Press, 2011).

16. Vermont provides an arresting parallel to expropriation in New York. For a discussion of how Vermont's property redistribution helped the Allen brothers build support for their faction, see Bellesiles Michael A., Ethan Allen and the Struggle for Independence on the Early American Frontier (Charlottesville: University of Virginia Press, 1993), 166–70. A more recent book that examines the Allen brothers and their efforts at confiscation is Randall Willard Sterne, Ethan Allen: His Life and Times (New York: W.W. Norton, 2011).

17. For an analysis of the committee system throughout the colonies and their impact on popular mobilization, see Breen, American Insurgents. See also Ammerman David, In the Common Cause: American Response to the Coercive Acts of 1774 (Charlottesville: University of Virginia Press, 1974). For a discussion of New York's committees, see Countryman, A People in Revolution, part 2.

18. Bangs Edward, Journal of Lieutenant Bangs, April 1 to July 29, 1776 (New York: The New York Times & Arno Press, 1968), 43; and Reinke A.A., “Occupation of New York City by the British, 1776,” The Pennsylvania Magazine of History and Biography, 1 (1877): 138–39.

19. New York (State), Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New-York, 1775–1776–1777, 2 vols. (Albany: Thurlow, Weed, 1842), 1:491.

20. Mason Bernard, The Road to Independence: The Revolutionary Movement in New York, 1773–1777 (Lexington, Ky.: University of Kentucky Press, 1966), 7879.

21. Journals of the Provincial Congress, 1:671. The Committee of Safety sat when the Convention was in recess.

22. Ibid., 1:979.

23. Ibid., 1:879.

24. Ibid., 1:638.

25. The New-York Journal, and the General Advertiser, July 7, 1777.

26. Journals of the Provincial Congress, 1:826.

27. Ibid.

28. The New-York Journal, and the General Advertiser, July 7, 1777.

29. Journals of the Provincial Congress, 2:460.

30. Ibid., 1:1077–78.

31. Ibid., 1:845.

32. The New-York Packet, and the American Advertiser, May 8, 1777.

33. There were three Benjamin Birdsalls in New York at that time. Two of the three were officers in the militia, whereas the third was an enlisted man in the sixth regiment of the Dutchess County militia. The author of this inventory was most likely the enlisted Birdsall, because no officer rank appears in the document. See Roberts James A., New York in the Revolution as Colony and State: A Compilation of Documents and Records from the Office of the State Comptroller, 2 vols. (Albany: J.B. Lyon, Co., 1904), 1:145.

34. Five people named French had their personal property confiscated. However, this document probably refers to Jeremiah French, who appears on the tax lists in Pawling's Precinct, in Dutchess County, until 1778, the same year that Birdsall took this inventory. Before then he appeared on the tax rolls of Beekman Precinct. Clifford M. Buck, “Tax Lists of Beekman and Pawling's Precincts,” available in the Local History Section of the Adriance Memorial Library, Poughkeepsie, New York (hereafter AML).

35. “Benjamin Birdsalls [sic] Account of Confiscated Goods,” December 7, 1778, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” Manuscripts Department, New-York Historical Society, New York, NY (hereafter NYHS).

36. Ibid.

37. Similar looting occurred in Massachusetts in 1775–1776. After Lexington and Concord, many Massachusetts Loyalists fled their homes to seek the protection of the British army that was occupying Boston at the time. Just as happened in New York, neighbors then plundered the Loyalists' estates. See Maas David E., “Honest Graft in Revolutionary Massachusetts,” Boston Bar Journal, 23 (1979): 715. Maas gives a fuller account of that plundering and private enrichment in The Return of the Massachusetts Loyalists (New York and London: Garland, 1989), ch. 6.

38. “An Account of Effects taken from People at Old and Little Hosick,” September 1777. This document is bound with various others, the first one of which is “An Account of Cash Received for Different Articles Since Settlement,” various dates, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions, NYHS.

39. Thomas Storms, information, August 8, 1778, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

40. Captain Bernardus Swartwout to Commissioners of Sequestration, list of people to examine, n.d., Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

41. Copy of Warrant Given by Commissioners of Sequestration, August 30, 1779, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

42. John Shy has suggested that militias throughout the states, not just New York, helped to coerce political obedience to the Revolution. He argued that, rather than fighting the British, militias' “chief purpose was to engineer consent, by force if necessary.” In that regard, one should think of them as police forces that monitored political belief rather than battlefield units that confronted the British. Shy John, A People Numerous and Armed: Reflections on the Military Struggle for American Independence (New York: Oxford University Press, 1976), 176.

43. Alexander Lamb, voucher to Theodorus Van Wyck, September 18, 1779, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions, NYHS.

44. John Haines, voucher to James Hunt, September 5, 1777, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions, NYHS.

45. Account book for George Palmer, various dates, Revolutionary War Miscellaneous Manuscripts, Box 2, NYHS. Although Palmer and his helpers began gathering these particular goods in May 1777, Burgoyne's invasion delayed the auction until September. Albany Committee of Correspondence (N.Y.), Minutes of the Albany Committee of Correspondence, 1775–1778, 2 vols. (Albany: The University of the State of New York, 1923–1925), 1:769–70, 846–47.

46. Account book for George Palmer, various dates, Revolutionary War Miscellaneous Manuscripts, Box 2, NYHS.

47. “The State of New-York their Account Current with Elihu Marvin & Isaac Nicolls Commissioners of Sequestration Orange County,” various dates, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions, NYHS.

48. “An Account of Disbursments [sic] since settlement,” various dates, bound with An Account of Cash Received for Different Articles since Settlement, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions, NYHS.

49. “Account of Contingent Expences paid by Peter S. Dygart Esq., one of the Commissioners of Sequestration for Tryon County,” various dates, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions, NYHS. Dygart listed the voucher numbers to correspond with each expense. Unfortunately, those vouchers have not survived.

50. Rea's occupation appears on the town's tax lists through 1779. Clifford M. Buck, “Northeast Tax Lists,” 12, available at AML.

51. Hugh Rea to Isaac Sheldon, December 10, 1777, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

52. Account book for George Palmer, various dates, Revolutionary War Miscellaneous Manuscripts, Box 2, NYHS. “An Account of Cash Received for Different Articles Since Settlement,” various dates, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions, NYHS.

53. “Persons indebted to the Commissioners of Sequestration from Dutchess County,” various dates, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887”; and “An Account of Outstanding debts due to the State of New-York for Sequestrd [sic] Property Sold by Samuel Drake Israel Honeywell & James Hunt Commissioners of Sequestration for Westchester County,” various dates, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions. Both available at NYHS.

54. For itemized lists, see “Persons indebted to the Commissioners of Sequestration from Dutchess County,” various dates; and “Lists of Property Sold at Auction,” various dates. Both documents in Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887.” See also “An Account of Cash Received for Different Articles Since Settlement,” various dates, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions; and Account book for George Palmer, various dates, Revolutionary War, Miscellaneous Manuscripts Box 2. All documents available at NYHS.

55. Theodorus Van Wyck to Henry Livingston, Jr., December 13, 1777, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

56. Commissioners even listed themselves among the bad debts when they filed accounts with the state. Samuel Drake acknowledged that he still owed the state for wheat in “An Account of Outstanding debts due to the State of New York for Sequestrd [sic] Property Sold by Samuel Drake Israel Honeywell & James Hunt, Commissioners of Sequestration for Westchester County,” various dates, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions, NYHS.

57. Messrs. John Coe and Gilbert Cooper Commissioners of Sequestration for Orange County in Account Current with the State of New-York, various dates, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions, NYHS. For other examples of Commissioners buying goods at their own auctions, see “An Account of Cash Received for Different Articles Since Settlement,” various dates, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions; and Account book for George Palmer, various dates, Revolutionary War, Miscellaneous Manuscripts Box 2. All available at NYHS.

58. “An Account of Cash Received for Different Articles Since Settlement,” various dates, Revolutionary War Box 5, New York State Revolutionary Committees and Commissions, NYHS.

59. The fire destroyed many of New York's revolutionary era records, but before these sale books burned, the state comptroller mentioned them in a compilation of manuscripts. Roberts, New York in the Revolution, 2:250.

60. Roberts, New York in the Revolution, 2:253–58.

61. Journals of the Provincial Congress, 1:930–31.

62. The New-York Packet, and the American Advertiser, June 19, 1777. The Commissioners did not quote the resolutions accurately in the announcement. The resolutions, as quoted in the newspaper, gave the leasing power specifically to the Dutchess Commissioners. However, the resolution refers generally to “the commissioners for sequestering the personal estates of persons gone over to the enemy.” Journals of the Provincial Congress, 1:930.

63. Theodorus Van Wyck to Henry Livingston, Jr., December 8, 1777, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

64. Hugh Rea to Isaac Sheldon, December 10, 1777, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

65. Herman Hoffman to Theodorus Van Wyck and Henry Livingston, Jr., October 28, 1778, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

66. Peter Heermans to Henry Livingston, Jr. and Theodorus Van Wyck, March 10, 1778, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

67. John Campbell to Henry Livingston, Jr., January 31, 1780 [1779], Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS. The year written on the letter is 1780. However, various references in it suggest that the year is almost certainly a mistake and that the correct one is 1779.

68. It seems that Van Wyck had already begun preparing for Campbell to take possession before Campbell ever sent the letter to Livingston. Therefore, Campbell and the other families could have moved on to the farm without writing to Livingston. Theodorus Van Wyck to James Cox, January 26, 1779, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

69. Jonathan Sloss Hobart to Messrs. Theodorus Van Wyck, Henry Livingston, Jr., and Isaac Sheldon, July 14, 1777, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

70. Isaac Sheldon to [Henry Livingston], November 13, 1777, Dutchess County Collection 1696–ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

71. Theodorus Van Wyck to Henry Livingston, Jr., February 16, 1779, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

72. Act of October 21, 1779, ch. 23, 1779 N.Y. Laws 168 (granting “certain powers to the joint committees of both houses of the legislature appointed to enquire into the conduct of the commissioners of sequestration”) For the legislative resolutions leading up to the creation of the joint committee of inquiry, see New York (State), The Votes and Proceedings of the Assembly of the State of New-York; at their third session, begun and holden in the Assembly-chamber, at Kingston, in Ulster County (Fishkill, NY: Samuel Loudon, 1779), 1920, 40.

73. The objections to farm leases resembled another minor complaint about the Commissioners' work. When the Commissioners hurried to auction goods off, they sometimes sold property claimed by people who had not fled to the British. In May 1777, the Convention passed a resolution that would supposedly address this problem. See Journals of the Provincial Congress, 1:930. However, the resolution remained unenforceable because it relied on seeking remedies in courts that did not exist. Moreover, the objections to selling certain goods, like the objections to particular leases, had no effect on the Commissioners' ability to redistribute property. They continued selling the goods, paying assistants, and leasing farms with undiminished enthusiasm.

74. Jonathan Pearsee, indemnification April 2, 1779; Jonathan G. Thompkins, indemnification, April 21, 1779; and Jonathan P. Waldron, indemnification, on behalf of the widow Mrs. Catherine Waldron, May 1, 1780. All located in Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

75. “An Account of Monies Received for House Rent &c,” various dates, bound with a document headed “An Account of Cash Received for Different Articles Since Settlement.” Also “An Account of Outstanding debts due to the State of New York for Sequestrd [sic] Property Sold by Samuel Drake Israel Honeywell & James Hunt, Commissioners of Sequestration for Westchester County.” Both documents in Revolutionary War Box 5, New York State Revolutionary Committees and Commissions, NYHS.

76. A similar process occurred in one of the most chaotic periods of early modern English history. During the English Reformation, many people helped to strip religious institutions bare, taking everything from floor boards to beehives. Looting on such a large scale implicated many people in acts of desecration. Shagan, Popular Politics, ch. 5.

77. The New-York Packet, and the American Advertiser, November 27, 1777.

78. The New-York Packet, December 11, 1777. This newspaper was the same as The New-York Packet, and the American Advertiser. However, the British destruction of storehouses made it difficult for the printer to find paper, which forced him to reduce the size of each issue. As a result, he could only fit a shorter title across the masthead.

79. The New-York Packet, and the American Advertiser, November 27, 1777.

80. The New-York Packet, October 23, 1777.

81. Ibid., December 11, 1777.

82. Journals of the Provincial Congress, 2:454.

83. General [Horatio] Gates to Major General John Vaughan, letter dated October 20, 1777, The New-York Packet, and the American Advertiser, November 27, 1777.

84. Journals of the Provincial Congress, 1:910.

85. Clinton George, Public Papers of George Clinton, first Governor of New York, 1771–1795–1801–1804, 10 vols. (Albany: Wynkoop Hallenbeck, 1899–1914), 2:854.

86. See, for example, Journals of the Provincial Convention, 1:750, 1:911. New York (State), Minutes of the Committee and of the First Commission for Detecting and Defeating Conspiracies in the State of New York, December 11, 1776–September 23, 1778, 2 vols. (New York: Printed for the New-York Historical Society, 1924–1925), 1:8.

87. Journals of the Provincial Congress, 1:1030–31.

88. Ibid., 2:440–41.

89. Clark Jonathan, “The Problem of Allegiance in Revolutionary Poughkeepsie,” in Saints & Revolutionaries: Essays on Early American History, ed. Hall David D., Murrin John W., and Tate Thad W. (New York and London: W.W. Norton, 1984), 288–89.

90. “Lists of Goods Confiscated and Sold,” various dates, Dutchess County Collection 1696-ca. 1910, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

91. Kim Sung Bok, Landlord and Tenant in Colonial New York: Memorial Society, 1664–1775 (Chapel Hill: University of North Carolina Press, 1978), ch. 8; Countryman, A People in Revolution, 20–21; Bonomi Patricia U., A Factious People: Politics and Society in Colonial New York (New York: Columbia University Press, 1971), 218–24; and Mark Irving and Handlin Oscar, “Land Cases in Colonial New York, 1765–1767: The King v. William Prendergast,” New York University Law Quarterly Review, 19 (1942): 165–94.

92. Minutes of the Committee and of the First Commission, 1:40.

93. For his interrogation, see Ibid., 1:43. For the preparations regarding his expropriation, see Theodorus Van Wyck to Henry Livingston, Jr., September 5, 1779, Dutchess County Collection, box labeled “Dutchess County, N.Y./ May 20, 1773–June 1887,” NYHS.

94. Act of Oct. 22, 1779, ch. 25, 1779 N.Y. Laws 173 (punishing those who have “voluntarily been adherent to the said king his fleets and armies, enemies to this State and the said other United States, with intent to subvert the government and liberties of this state and the said other United States, and to bring the same in subjection of the crown of Great Britain.”)

95. Campbell William W., The Annals of Tryon County; or, the border warfare of New York, during the revolution (New York: J & J Harper, 1831), ch. 2, Appendix Note B; and Frey Samuel Ludlow, The Minute Book of the Committee of Safety of Tryon County, the Old New York Frontier (New York: Dodd, Mead and Co., 1905), viixv; 105–7.

96. Frey, Minute Book, 7–8.

97. John Fonda was the committee member who was arrested. For the details of the fight that led to his arrest, see Frey, Minute Book, 49–51. Other committee members then freed him from jail while Alexander White, the Sheriff of Tryon County and Sir John's close associate, sought protection at Johnson Hall. The two sides then dug in, with Johnson's supporters defending the property and the committee members trying to find cannons to bombard it. Minutes of the Albany Committee of Correspondence, 1:166.

98. Minutes of the Albany Committee of Correspondence, 1:165–72. The détente proved short lived. A few years later, Sir John returned and led guerilla raids that devastated the Mohawk Valley. Campbell, Annals of Tryon County, ch. 7–8.

99. Roberts, New York in the Revolution, 2:250.

100. In 1821, James Fenimore Cooper wrote a best-selling novel whose main character some have claimed was based on Crosby. See Cooper's The Spy: A Tale of the Neutral Ground (New York: AMS Press, 2002). The first person to identify Crosby as the model for novel's protagonist was Barnum H.L., The Spy Unmasked; or, memoirs of Enoch Crosby, alias Harvey Birch, the hero of Mr. Cooper's tale of the neutral ground (New York: J. & J. Harper, 1828). Cooper, however, always claimed that he based the character of Harvey Birch on stories that his friend John Jay told him, but that he never knew the person Jay was describing.

101. Pickering James H., “Enoch Crosby, Secret Agent of the Neutral Ground: His Own Story,” New York History, 47 (1966): 6173.

102. Shagan, Popular Politics, ch. 5.

103. After being harassed and dispossessed, many of those Loyalists made the painful decision to leave their homes to seek refuge in Canada, the West Indies, or the British Isles. See Jasanoff Maya, Liberty's Exiles: American Loyalists in the Revolutionary World (New York: Alfred A. Knopf, 2011); Norton, British-Americans; and Brown, Good Americans, ch. 5–6.

104. Act of October 22, 1779, ch. 25, 1779 N.Y. Laws 173. The fifty-nine people named in the statute were both dispossessed and banished. However, those convicted in court were only dispossessed; they were not formally banished.

105. The sales began under a separate law. Act of March 10, 1780, ch. 51, 1780 N.Y. Laws 230 (providing “for the immediate sale of part of the forfeited estates.”).

106. Yoshpe Harry B., “The DeLancey Estate: Did the Revolution Democratize Landholding in New York?New York History, 17 (1936): 167–79. Yoshpe expanded this analysis beyond the DeLancey estate in The Disposition of Loyalist Estates in the Southern District of the State of New York (New York: Columbia University Press, 1939). Other scholars examining land redistribution include Crary Catherine Snell, “Forfeited Loyalist Lands in the Western District of New York-–Albany and Tryon Counties,” New York History, 35 (1954): 239–56; and Reubens Beatrice G., “Pre-Emptive Rights in the Disposition of a Confiscated Estate, Philipsburgh Manor, New York,” The William and Mary Quarterly, 3rd Ser., 22 (1965): 435–56. A comprehensive study of how much land was sold in New York, who lost it, and who bought it appears in John Thomas Reilly, “The Confiscation and Sale of the Loyalist Estates and its Effect Upon the Democratization of Landholding in New York State: 1799 [sic, for 1779]–1800,” (PhD diss., Fordham University, 1974). However, even Reilly's detailed study contains only three sentences on the redistribution of moveable property (p. 16). Studies of other states also focus on the confiscation of real property. Riccards Michael P., “Patriots and Plunderers: Confiscation of Loyalist Lands in New Jersey, 1776–1786,” New Jersey History, 86 (1968): 1428; and Coker Kathryn Roe, “Absentees as Loyalists in Revolutionary War South Carolina,” The South Carolina Historical Magazine, 96 (1995): 119–34.

107. Staughton Lynd chose not to examine the auctions or any of the Commissioners' work selling goods, focusing instead only on leasing. Lynd Staughton, Anti-Federalism in Dutchess County, New York: A Study of Democracy and Class Conflict in the Revolutionary Era (Chicago: Loyola University Press, 1962), 65. Alexander C. Flick attempted to estimate the total value of moveable property sold. See Flick , Loyalism in New York During the American Revolution (New York: Columbia University Press, 1901), 141–43. Other historians have offered similarly limited treatments of redistribution in New York, such as Middlekauff, Glorious Cause, 567; and Calhoon, Loyalists in Revolutionary America, 415–23.

108. Humphrey Thomas J., Land and Liberty: Hudson Valley Riots in the Age of Revolution (DeKalb, IL: Northern Illinois University Press, 2004), ch. 1–3; and Mark Irving, Agrarian Land Conflicts in Colonial New York, 1711–1775 (New York: Columbia University Press, 1940).

109. As one historian has put it, “[t]enants and other farmers wanted to own their land, and they wanted to reap the full harvest of their labor. These men and women based their support for one side or the other, or neither, on their perception of which side was more likely to satisfy their hunger for land.” Humphrey, Land and Liberty, 10. For a similar argument that land redistribution was the key element in convincing tenants to support the new state, see Lynd Staughton, “Who Should Rule at Home? Dutchess County, New York in the American Revolution,” The William and Mary Quarterly, 3rd Ser., 18 (1961): 330–59. The forfeiture law, on the whole, succeeded in breaking up many large estates and allowing tenants to buy the farms they had been leasing. In this way, the statute democratized landholding by seizing the estates of a few powerful landlords and redistributing their property to many small farmers. For an analysis of this democratization of landholding see Reilly, “Confiscation and Sale of the Loyalist Estates.”

110. Reilly, “Confiscation and Sale of the Loyalist Estates,” 264–65 gives the number of Loyalists who had real property confiscated and sold; Appendix II lists everyone named in the statute, indicted or convicted, whether or not they had property to forfeit. It is worth noting that only fifty-nine people, out of 984 convicted, were attainted in the statute. The remaining 925 defendants were convicted in court.

111. Pennsylvania's redistribution laws show a similar pattern in which very few convictions resulted in land sales. In that state, 490 defendants were convicted of treason and formally dispossessed. But of those 490 traitors, only 121 forfeited land––approximately 25% of all those convicted. Ousterhout Anne M., “Pennsylvania Land Confiscation During the Revolution,” The Pennsylvania Magazine of History and Biography, 102 (1978): 333.

112. Samuel R. Gardiner mentioned in passing that “every acre of land sold was a bond attaching the purchaser to the Commonwealth.” But he did not examine it any further. Gardiner , History of the Commonwealth and Protectorate, 1649–1656, 4 vols. (London and New York: Longmans, Green, 1903), 1:251.

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Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
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