“Revolutionary Law in New York, 1776-1778”
Howard Pashman
Northwestern University
Paper presented to the ABF/Illinois Legal History Seminar
February 27, 2012
DRAFT: DO NOT CITE OR DISTRIBUTE
The following paper is a draft of chapter one of my dissertation titled “Making Revolution Work: Law and Politics in New York, 1776-1783.” In it I examine how, during the American Revolution, supporters of independence contained popular violence and rebuilt legal institutions in a way that ordinary people found legitimate. Early in the war, colonial institutions grew weak or collapsed entirely. People took the law into their own hands to enforce harsh, revolutionary justice. But by the end of the war, Americans had rebuilt structures such as courts that people accepted. I analyze one state in detail to understand how Americans made revolution work, how they transformed violent upheaval into settled legal order. I argue that property redistribution was critical in that change. By seizing property from political opponents and selling it to allies, New Yorkers punished enemies and created a constituency of supporters with a stake in maintaining the new regime. However, New Yorkers hit upon that solution later in the war and I cover property redistribution in another part of the dissertation. The first chapter, drafted here, analyzes the first efforts to reestablish legal order. New York’s regime struggled to do so by finding and punishing Loyalists who were hiding among them. That aggressive, partisan enforcement resonated with New Yorkers and started to build popular legitimacy for the legal authority of a revolutionary regime.
The American Revolution destroyed New York’s colonial legal system and threw society into violent disorder. Early in the conflict, New Yorkers faced institutional collapse, popular violence, military invasion, and internal migration. This chaos not only forced institutions like courts to close, but it undermined the basis of sovereign authority. New Yorkers found themselves in a society where the source of sovereignty was unclear, where nobody could be sure who ought to govern or what gave them the right to do so. This chapter examines how insurgents first tried to contain that unrest and reestablish legal order. Beginning in the fall of 1776, the leading edge of that effort was a group called the Committee for Detecting and Defeating Conspiracies. The Committee met under militia guard and tested people’s political allegiance to determine if they were Loyalists. As the Committee did so, it tried to defeat counter-revolutionaries by jailing suspected Loyalists and deporting hundreds of others, without any trials, to places such as Exeter, New Hampshire where prisoners could not communicate with the British. The Committee and its supporters believed that they would detain enemy sympathizers only until courts reconvened, at which time the Loyalists would be tried for such crimes as “notorious disaffection to the American cause.” However, since nobody could be sure when courts might meet again, removing prisoners to New England amounted to indefinite detention with the vague promise of a trial at some later, unspecified date.
The deportations and jailings ultimately failed to resolve the problem of widespread disorder. New Yorkers came to realize that the regime was too weak to enforce its own policies, and it could not keep so many suspects in jail or prevent them from escaping their places of exile. Moreover, jailings and indefinite detention without trial had the exact opposite effect the Committee intended. Instead of isolating suspects as dangerous subversives, it created sympathy for the prisoners. People in places like New Hampshire saw prisoners arrive at the start of a New England winter with little more than the clothes on their backs, and they started to believe that New York had treated the suspects unfairly. By spring 1777, the Committee realized its actions were not sustainable, recalled everyone it had deported, and started releasing prisoners whom it believed posed no danger. New Yorkers did not have a change of heart; they never believed that they had been too harsh in dispensing with trials to send suspects abroad. Rather, the Committee reversed its actions because they were unenforceable and they turned people against New York’s revolutionary regime. Although the Committee continued to operate intermittently throughout the war, it was never again as important as it had been early in the conflict.
Despite its later failure, the Committee’s intense activity at the start of the war reveals the dark, ugly world of revolutionary law that arose when formal institutions collapsed. It was a world where strangers aroused suspicion because they might be spies or enemy collaborators; where an off-hand comment could bring a denunciation; and where a denunciation could bring deportation.[1] Moreover, bands of Loyalists roamed the woods, robbing New Yorkers and terrifying them with threats of bloody retribution. That suspicion, fear, and violence suffused daily life and animated New Yorkers’ early efforts to rebuild legal order. In particular, the turmoil made self-preservation an urgent priority among New Yorkers, leading them to accept an aggressive Committee if only it would save them from Loyalists. New Yorkers, scared and surrounded by enemies, reached out to the Committee and to the regime because they thought doing so would protect them from Loyalist plots.
The Committee also highlights how insurgents developed popular legitimacy for the authority of a revolutionary regime. In those chaotic opening months, several sources of institutional authority existed and New Yorkers had options for how they resolved their fear of enemy plots. New Yorkers could take matters into their own hands, either individually or through local committees, and commit violence on Loyalists. They could also seek help from the Continental Army, which had soldiers stationed in many parts of New York. Or they could bring their concerns about Loyalists to the revolutionary regime. This chapter tells the story of how the regime took halting steps toward superseding those other institutions and slowly emerged as the central governing authority that New Yorkers found legitimate. The Committee’s assault on Loyalists proved central to that process. New Yorkers were terrified by the enemies skulking in the woods and they welcomed the regime because it helped them to address that urgent priority. It was the Committee’s partisanship—not impartial rules or fidelity to abstract doctrines—that resonated with New Yorkers and started to elevate the regime above other sources of authority. The Committee built up trust with New Yorkers and convinced them that they could rely on the regime to meet their basic need for protection against Loyalists. In so doing, the Committee took the first steps toward rebuilding legal order in a way that ordinary New Yorkers accepted.
* * * * * *
The breakdown of New York’s colonial government ushered in a period of tremendous instability. By mid-1776, New York’s legislature had stopped meeting, its courts ceased convening, and its governor had fled to a British ship in New York harbor.[2] With this collapse, the constitution became inoperative as no institution existed to enforce its provisions. What emerged in its place was a loose collection of committees that arose at the town and county levels. These bodies called themselves committees of observation, committees of safety, or more often just the Committee of Albany, or Goshen, or Dutchess County, depending on the jurisdiction such groups arrogated to themselves. The committees became the only functioning governments in much of the state as they gathered war materiel, regulated local economies, or kept the roads clear. The only institution that recalled state-wide government was the Provincial Convention which roughly resembled a legislature sitting above local committees. The local groups sometimes asked the Convention for advice or assistance, but it had little formal power as committees and mobs often ignored its resolutions. Thus, local committees emerged in a chaotic jurisdictional environment where the source of legitimate authority remained unclear.[3]
Popular violence amplified that volatility. Riots in New York City in June 1776 suggest how fears of British subversion and secret plots led to some gruesome popular assaults. Mobs hunted down suspected British sympathizers, stripped them, and rode them on rails. If the victims fell off, the mobs would kick and drag them down the street until they were bloodied and covered in grime. At night another mob led a group of Tories on a candlelit procession, pushing their heads into the flames to burn their faces.[4] The point here is not to provide a grisly catalog of abuse. Rather, no person or legal institution could prevent these assaults. The violence horrified Continental Army officers stationed in New York City and they demanded that the Convention do more to stop them. But the Convention could only pass a feeble resolution requesting that “the good people of this city and colony desist from all riots.”[5] In the absence of formal government, New Yorkers took the law into their own hands to enforce their own notions of justice. It was even more worrisome that they seemed to exist outside all institutional authority, not even subject to the resolutions of the Provincial Convention.
Then, in July 1776, the British invaded New York City, turning a volatile society into a desperate one. Over the following months, the British chased George Washington and the Continental Army through Long Island, Manhattan, Harlem Heights, and Westchester. Refugees had been leaving the city for months. But after the invasion, they raced out by the thousand. By the fall of 1776, over 11,000 refugees had fled New York City for surrounding areas. At the same time, about 4,000 people went the other way to seek the protection of the British army.[6] Supporters of independence called them disaffected persons, inimical persons, or Tories. And when they fled their homes to seek British protection, they often left wives, children, and property behind in the belief that they would reunite after a quick American defeat.
This volatile and violent moment did not simply mark the beginning of an easy transition to independent government.[7] The war obliterated sovereign authority and left New Yorkers without a clear idea of where that authority resided or what institutions should wield it. The political theorist Stephen Holmes has described such circumstances as a sovereignless condition, one in which “rights can be imagined but not experienced.” When a state grows weak or fails entirely, “rights themselves are nonexistent or underenforced.”[8] By late 1776, New Yorkers found themselves in just this condition. The colonial government had collapsed; no independent state existed to protect New Yorkers’ physical safety, property, and other basic rights. Instead, partisan aggression filled the void. After fleeing New York City for Kingston, a printer described late 1776 and early 1777 as “a sea of tyrannic violence and rapine.”[9] When royal authority failed, New Yorkers confronted chaotic violence that endangered their lives and destroyed their rights.
The delegates to the Provincial Convention, like many other New Yorkers, ran for their lives. They retreated north and on September 21—the day a fire burned one-fourth of the homes in New York City—the members found “themselves reduced to the great laws of self-preservation.” The invading army and its Loyalist supporters were plotting to undermine the movement and previous attempts had failed “to detect and suppress such iniquitous practices and conspiracies” that threatened independence. To that end, the Convention created the Committee for Detecting and Defeating Conspiracies, or, to call it by its full name, the committee for “enquiring into, detecting and defeating all conspiracies which may be formed in this State, against the liberties of America.”[10] The Convention appointed John Jay, William Duer, Charles DeWitt, Zephaniah Platt, Leonard Gansevoort, and Nathaniel Sackett as the Committee. Individual personalities, however, mattered little in how the Committee operated. Over the following nine months, the Convention added and removed members; it reorganized the Committee. But none of those changes altered how it implemented its expansive powers. The resolution authorized the Committee to arrest suspects, seize their papers, and generally “to do every act and thing whatsoever, which may be necessary” to defeat conspiracies against American independence. To carry out this broad emergency power, the Committee could call out the militia in any town or county and raise up to two hundred and twenty of its own troops.[11]
The Convention also envisioned the Committee on Conspiracies as presiding over the local committees. The September 21 resolutions ordered those local groups to send to the Committee on Conspiracies “all such information as they shall receive, relating to any machinations and conspiracies against this State.”[12] It is worth noting what the Committee did not have to do. It did not have procedural restrictions such as grand or petty juries; it did not have to obtain any warrants or writs before acting; it did not have to meet any minimum evidentiary standards for proving conspiracy. The Committee’s broad authority, supported by armed force, represented the regime’s desperate effort to preserve some sort of order and to prevent even greater devastation from overwhelming them.[13]
The Committee emerged at a time when many New Yorkers shared these priorities. They wanted an ideological police force to help them confront the armed bands of Loyalists roaming the countryside. One such incident occurred in Dutchess County in July 1776. Egbert Benson, the chairman of the Dutchess County committee and later the first Attorney General of New York, described to a militia officer that “a dangerous insurrection” had just occurred in the county. Small groups of Tories had stolen weapons before uniting in such force that supporters of independence had barely managed to defeat their plans. The supporters of independence disarmed some Loyalists, but the rest were still “skulking in woods,” menacing the entire county. And, even more ominously, the “number of delinquents in this affair is so great that we are at a loss how to proceed.”[14] The plot, and those involved, seemed to surround them like a fog. It was a vague, dimensionless threat whose depth nobody could quite perceive, but which might roll in from the woods at any moment. New Yorkers like those in Dutchess County were frantic for some way to defend themselves, and they reached out to the Committee because they wanted help in stopping such schemes.
The Committee quickly found eager supporters among these frightened New Yorkers. People started coming forward to denounce dissident neighbors who were plotting their ruin. On October 17, just a few weeks after its creation, the Committee met in Fishkill, about seventy miles north of Manhattan on the east bank of the Hudson River. It declared that “persons of known probity and attachment to the American cause” had named “the most disaffected persons” in Dutchess County.[15] From those anonymous informants, the Committee discovered “divers [sic] treasonable conspiracies” to enlist men in the King’s army.[16] The Committee also learned that former royal governor William Tryon had aided the plots. The involvement of a powerful patron made “it absolutely necessary and expedient” that the “notoriously disaffected persons” be moved to another state where they could not communicate with other Loyalists or the British army. To that end, the Committee ordered 112 residents of Dutchess County deported to Exeter, New Hampshire. [17] The Committee conducted no trials and their only source of evidence was the anonymous denunciations.
The October 17 order was not the first time during the war that New Yorkers deported political dissidents.[18] But it was the largest single removal and the Committee members acknowledged the extraordinary nature of what they were doing. They justified their action by declaring that New York “is now actually invaded by a powerful Army, now in possession of its capital” and moving north into Westchester County.[19] Moreover, the state lacked regular courts to try prisoners for their offenses. These circumstances left the Committee no choice but removing Loyalists until “such times as proper courts shall be instituted in this State for the due trial and punishment” of those imprisoned.[20] These resolutions suggest that the Committee imagined an audience of New Yorkers—particularly the Convention and local committees—that might reject such a drastic step. They feared that some would object to a policy that separated families, dispensed with trials, and sent prisoners abroad. But, the resolutions point out, a society under military occupation, and whose legal institutions had collapsed, had no other choice. Thus, insurgents on the Committee knew that deportations en masse were an aggressive policy. But they believed that New Yorkers would accept it as the only way to prevent even greater disorder.