Volume 4, Part 9, The Impact of the Revolution
Volume 4, Chapter 76, Oppressing the Tories
A myth has been promulgated by neoconservative historians
that the American Revolution was a uniquely mild revolution,
so mild as to be scarcely a revolution at all.
In an America that now frowns strongly on the concept of revolution,
This sort of mythologizing should not come as a surprise.
The Revolutionary's treatment of its Tory minority, however, scarcely fits this myth.
Civil War raged throughout the United States and Tory terror bans abounded in North and South.
An estimated 50,000 American Tories joined the British Army during the course of the Revolution
And during the 1780-81 campaign, 10,000 loyalists were under arms.
In this kind of ferocious civil conflict, in which the life of the revolution itself
was at stake, it is unreasonable to expect consistently libertarian methods of handling
the Tories from even the most liberal supporters of the revolution.
The 19th century Canadian historian Egerton Ryerson was quite right in pointing out the
inconsistency of the revolutionaries. The Declaration of Independence had been made
in the name of and for the professed purposes of liberty, but the very first acts under
it were to deprive a large portion of the colonists not only of liberty of action, but
What Liberty of Thought and Opinion
Everywhere Tories were deprived of civil rights and freedom of speech and press.
They were especially taxed and were arrested for the duration of the war on mere suspicion
and without benefit of habeas corpus.
They were herded together and shipped into prison camps far from the British lines in
which they were sometimes forced to work for the revolution.
They were tarred and feathered, banished, and their lands and properties were confiscated
by the state. Sometimes they were even executed. They were forced to take test oaths, they
were disfranchised and barred from public office, and they were generally forbidden
to practice as professional men. In many cases, family punishment was imposed and relatives
Victims of absent Tories were jailed for the behavior of their errant kinsmen and held
as hostages.
Local vigilante action kept watch on suspected Tories and imposed harsh penalties on them.
Banishment from the country, with little money allowed to be taken out, was a favorite punishment
for Tories and suspected Tories.
Thus Massachusetts began its systematic policy of banishment in 1777 by providing for majorities
at town meetings to name Tories and then to bring them to trial.
Convicted Tories were to be deported at their own expense.
The following year Massachusetts imposed a test oath for which refusal to sign would
bring banishment.
After that year Massachusetts went further to bring into practice the hated and tyrannical
act of a tainter, a legislative declaration of guilt without benefit of trial.
Two hundred and sixty suspected Tories were attainted, imprisoned and banished.
How far even the liberals were inclined to go may be illustrated by Thomas Jefferson's
action in the case of Josiah Phillips.
Phillips had organized a Tory terror gang in Princess Anne County, Virginia.
As a member of the Virginia Assembly, Jefferson pushed through a bill of attainder and outlawry,
declaring Phillips guilty of murder, plunder and high treason, and proclaiming Phillips
and all of his unnamed associates to be outlaws, whom any man could kill with impunity.
Thus, Jefferson was willing to use a hated and despotic outlawry procedure rarely used
in the American colonies and dying out even then in comparatively statist England.
The Continental Congress, in October 1775, urged the imprisonment of anyone who might,
in the opinion of the provincial committees of safety, endanger the safety of the colony
of the Liberties of America, and two years later it recommended confiscation of the property
of all Tories who had supposedly forfeited their right of protection, but Congress could
merely recommend only the states and localities could take action against the Tories, one
such state program of action against its Tories has been subjected to detailed study, that
of New Jersey.
As in the other states, enforcement was in the hands of the Attorney General, in this
case William Patterson.
The chief centers of legal prosecution were the 13 county courts in New Jersey, composed
of local justices of the peace sitting together.
But the traditional legal machinery proved too cumbersome a weapon, and in early 1777,
New Jersey set up a Council of Safety, chosen by the Legislature and including the Attorney
General, armed with the power to jail any man even suspected of Toryism.
The Council of Safety travelled all over the state, whipping up the zeal of local officials
and often taking the administration of anti-Tory law into its own hands, hearing witnesses,
Ordering the Seizure of Suspects and the Imprisonment of Alleged Tories.
In one day, in July 1777, the New Jersey Council of Safety arrested no fewer than 48 suspected
Tories.
Juridical safeguards were disregarded, and Patterson could, for example, indict as well
as prosecute.
In practice, in fact, Attorney General Patterson did most of the Council's work.
Anyone making seditious remarks, however slight, or failing to turn out for militia duty, was
apt to be suspected and denounced as a Tory, and also to be forced to take a test oath
swearing loyalty to the revolution.
The peak of Tory prosecution in New Jersey took place during 1777 and 1778, when almost
all the cases were prosecuted.
By October 1778, New Jersey was presumably cleansed of Tories and the Council of Safety
was dissolved.
As we have remarked, the Revolution did not spare its Tories the ultimate penalty, execution.
Two were hanged in Philadelphia in 1778 and several were executed in North Carolina.
Many active Tories were executed by state militia and guerrilla bands, and many armed
Tory prisoners were executed in reprisal for British killings of rebels.
The eminent historian Robert R. Palmer has offered a critically important comparison
of the degree of radicalism in the American and French revolutions, the number of emigres
who felt compelled to flee the country during the revolution.
The French Revolution created 129,000 exiles out of a total population of about 25 million,
an emigre ratio of 5 per 1,000.
The American Tory emigres amounted to what Palmer very conservatively sets at 60,000
In a population of about 2.5 million, 24 emigres per 1,000. But at least half a million of the American population were slaves who could hardly be considered to be in the same category as other inhabitants of the colonies.
A more likely estimate for Tory emigration in the Revolution is 100,000.
At this corrected rate, 50 Americans out of every 1,000 were emigres during the Revolution,
a rate fully tenfold the exile rate in the supposedly more radical French Revolution.
Furthermore, as Palmer reminds us, an important nucleus of conservatism was permanently lost
to the United States. The French emigres returned to France. The emigres from the American Revolution
did not return. They peopled the Canadian wilderness, for example, New Brunswick. Only
individuals without political influence drifted back to the United States. Anyone who knows
the significance for France of the return of the emigres will ponder the importance
for the United States of this fact which is so easily overlooked because negative and
invisible except in a comparative view. Americans have really forgotten the loyalist. The sense
in which there was no conflict in the American Revolution is the sense in which the loyalists
are forgotten. The American consensus rests in some degree on the elimination from the
and the National Consciousness as well as from the country of a once important and relatively numerous element of dissent.
As the revolution wore on and finances became tight,
confiscation of Tory land became an increasingly tempting method of financing the war,
certainly a method of reparation more just than inflation.
Confiscation began as a method employed by scattered private individuals operating on what might be called the homestead principle.
Individuals, nearby rebel soldiers and local committees expropriated the treasures, livestock, timber, furniture and clothing of Tory families.
Private appropriation of the property of Tories was not prosecuted as theft by the authorities.
At this point, the states stepped in, deciding to stake out booty from Tories for their own privileged use.
Tom Paine, in common sense, had advanced the idea of seizing Tory property to finance the revolution,
and the Congressional Resolution of late 1777 spurred the states to follow this advice.
Generally, the states first sequestered Tory-owned lands to themselves, and then later sold the lands at auction, the state pocketing the proceeds. In this way, Tory lands were redistributed throughout the country.
Every state carried out the confiscation of Tory property, although the specific procedures often varied from state to state.
Generally, the states seized Tory property by a tender, with no provision for jury trial.
In some cases, the regular executive officers conducted operations.
In others, special commissions were appointed.
Auction sales were often made on credit to ease the burden on purchasers,
and sometimes payment could be made in state treasurer's certificates issued to public creditors in the state.
No Tories were permitted to buy the estates and this effectively prohibited collusive purchases by Tory friends of the expropriated.
It is instructive to note the moral justification that a largely liberal society gave for the blatantly uncompensated confiscation of the property of the American Tories.
The Virginia House of Delegates declared, at the end of 1782, that the confiscation laws were strongly dictated by that principle of common justice, which demands that if virtuous citizens, in defense of their natural rights, risk their life, liberty and property, on their success, vicious citizens who side with tyranny and oppression, or cloak themselves under the mask of neutrality, should at least hazard their
and not enjoy the labors and dangers of those whose destruction they wished.
The result of this redistribution was a significantly more democratic and less concentrated ownership of land in the country.
For many large Tory estates were broken up by the confiscation process.
Indeed, state policy was to divide up the large estates and sell them in small tracts
to prevent dangerous monopolies of land. In North Carolina there was considerable redistribution
of land and at low prices that small farmers could afford. Thus the vast holdings of the
noted Tory, Henry McCullough, were confiscated by the state and sold to eighty separate families.
in the United States, such large estates as those of Tories John Wentworth in New Hampshire,
Sir William Peperell in Maine, and Sir James Wright in Georgia were confiscated and redistributed,
and various proprietary lands in Maryland, the Penn families in Pennsylvania, Lord Fairfax's
tract in the northern neck of Virginia, and Lord Granville's in North Carolina were swept
away.
Where quit rents abolished, they were confiscated by the state and resold to separate private
owners. In this way, the revolution swept away these important remnants of feudalism.
On the other hand, Penn's private manors in Pennsylvania and their quit rents, totaling
over 500,000 acres, were reconfirmed by the Pennsylvania legislature rather than confiscated.
Lord Granville's estate, it should be remembered, constituted one-third of North Carolina, while
Fairfax's northern neck domain totaled over five million acres. Interestingly enough,
Lord Fairfax had settled down in permanent residence in Virginia in the 1740s, and he
was never a Tory. Virginia, therefore, graciously waited until his death to confiscate his estate,
A sign that elimination of this feudal land monopoly was a concern of Virginians, separate
from the urge to punish Tories. Furthermore, land monopoly was significantly attacked by
the confiscation, division and sale of ungranted royal estates and timberlands in New Hampshire,
New York and the southern states. Whenever the state has privileges to dispense, they
They will tend to be granted to the state officials themselves, or their favorites, or to be sold to the highest bidder.
Hence, inevitably, corruption and special privilege entered into the lucrative disposal of the confiscated lands.
Haskett shows this process of privilege as it developed in New Jersey.
Confiscations and dispositions were made by appointed county commissioners.
These commissioners were therefore suppliers of special privileges.
Accordingly, they generally failed to advertise the land sales, doctored the auditing of the assets and rigged the bidding so as to sell the land parcels to favored buyers at bargain prices.
Moreover, the county commissioners often kept the sale money, invested it for their personal accounts and only paid the money into the government later.
in highly depreciated currency. Indeed, one shrewd commissioner of Somerset County, Frederic Frelinghuysen, ended up as owner of two of the seven confiscated estates he helped to sell. By 1781, New Jersey had only received $28,000 from its sales of land.
of Land. Neither Attorney General Patterson nor the Assembly ever acted to stop this wholesale
corruption. Not surprisingly, since Patterson was an old friend of Freilin Heisen, indeed
both Patterson and his brother-in-law became owners of confiscated Somerset estates. In
fact, Freilin Heisen, Patterson and Patterson's family wound up as owners of over half the
and the confiscated Tory estates in Somerset County.
Yet despite the widespread corruption, land distribution in New Jersey was still significantly
broadened and made more democratic as a result of the revolution.
Over 500 Tory estates in the state were confiscated, parceled out and sold in New Jersey.