Conceived in Liberty (274 page)

At this point, Vermont’s bold determination and high resolve were dissolved as if by magic, by the advice of the now charismatic George Washington. In January 1782, Washington gravely advised Vermont to surrender the West and East Union towns to New York and New Hampshire respectively, after which Congress would surely admit Vermont promptly into the Union as the fourteenth state. Vermont rapidly divested itself of these acquisitions, even though this meant the betrayal of the hopes of the East and West Unioners. Perhaps symbolically, it did this on Washington’s birthday. But with the territory removed from Vermont hands, Congress conveniently forgot its part of the bargain and tabled the whole issue, now that the British threat was over. New York and New Hampshire began to move in for the kill, and New York passed a law pardoning all citizens of Vermont and recognizing all grants of land made there by New Hampshire or by Vermont itself. The southeast towns redoubled their urgings to be incorporated into New York and the Eastside towns did the same for New Hampshire.

At this point, rebellion and conflict broke out in the southeast, launched by a Yorker movement centering in Guilford. In this unstable situation,
Vermont felt it could play New Hampshire and New York against each other, since in any partition of Vermont the entire Eastside was scheduled to go to New Hampshire and not to New York. Neither state could then intervene in the fray. The second Cow War began once more over attempted conscription into Vermont’s militia, leading to refusal, consequent confiscation and sale of the refusers’ cows by Vermont. A Yorker mob reconfiscated Joel Bigelow’s cow and the fracas had begun again. Now New York state finally and officially organized Cumberland County in the southeast, appointing sheriffs, judges, and militia officers.

In the face of a threatened Vermont invasion, the southeasterners were scarcely deterred by Vermont’s passivity and mild treatment of the affair. Yorker prisoners were forcibly released, and Yorkers refused to pay taxes to the republic of Vermont. Finally, in mid-September, Vermont sent Ethan and Ira Allen and over 200 men into Cumberland, and they promptly rounded up the leading Yorker officials. The blustering threats of the highly feared Ethan Allen to lay waste to Guilford quelled that town’s attempt at resistance. A Vermont court decreed permanent banishment from the republic for the five leading Yorker rebels and confiscation of their property. Many other Yorker officials were fined or banished, and Ethan Allen accurately taunted the Yorkers: “You have called on your god, Clinton, till you are tired. Call now on your god, Congress, and they will answer you as Clinton has done.” But while no rescue came, the banished leaders were soon readmitted and resumed their rebellious activities, and were once more arrested and pardoned, and took up rebellion again, and so on in a seemingly endless cycle.

While Washington tried to soften Congress’ newly aroused hostility to Vermont, Governor Clinton continued in implacable opposition. But as the war with Britain came to an end, both Clinton and Congress were finally getting increasingly weary of the whole Vermont problem—precisely what the Vermonters had been counting on. Mounting rebellion in the southeast finally led to a second invasion by 300 Vermont militia under Col. Stephen Bradley in mid-January 1784, and this invasion again quelled the southeast revolt. With the death of the leader of the rebellion, Charles Phelps of Marlboro, the seemingly interminable Yorker revolt came to an end. Vermont still stood as an independent republic, albeit shorn of its expanded East and West Union towns, its eventual admission to the Confederation apparently inevitable.

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 revolutionaries’ treatment of its Tory minority, however, scarcely fits this myth. Civil war raged throughout the United States, and Tory terror bands 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 nineteenth 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 liberty of thought and opinion....”
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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 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. Later that year, Massachusetts went further to bring into practice the hated and tyrannical act of attainder—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.
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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 or 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.
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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 thirteen 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 traveled 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 émigrés 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 émigré ratio of 5 per 1,000. The American Tory émigrés amounted to what Palmer very conservatively sets at 60,000 in a population of about 2.5 million: 24 émigrés 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 of 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 émigrés 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 émigrés returned to France. The émigrés from the American Revolution did not return; they peopled the Canadian wilderness [e.g., 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 émigrés 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 loyalists.... 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 national consciousness, as well as from the country, of a once important and relatively numerous element of dissent.
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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 attainder, 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 treasurers’ 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 property and not enjoy the labors and dangers of those whose destruction they wished.”
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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 McCulloh, were confiscated by the state and sold to eighty separate families. Such large estates as those of Tories John Wentworth in New Hampshire, Sir William Pepperrell in Maine, and Sir James Wright in Georgia were confiscated and redistributed. And various proprietary lands—in Maryland, the Penn family’s in Pennsylvania, Lord Fairfax’s tract in the Northern Neck of Virginia, and Lord Granville’s in North Carolina—were swept away. Their quitrents 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.
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