How does a popular uprising transform itself from the disorder of revolution into a legal system that carries out the daily administration required to govern? Americans faced this question during the Revolution as colonial legal structures collapsed under the period’s disorder. Yet by the end of the war, Americans managed to rebuild their courts and legislatures, imbuing such institutions with an authority that was widely respected. This remarkable transformation came about in unexpected ways. Howard Pashman here studies the surprising role played by property redistribution—seizing it from Loyalists and transferring it to supporters of independence—in the reconstruction of legal order during the Revolutionary War.Building a Revolutionary State looks closely at one state, New York, to understand the broader question of how legal structures emerged from an insurgency. By examining law as New Yorkers experienced it in daily life during the war, Pashman reconstructs a world of revolutionary law that prevailed during America’s transition to independence. In doing so, Pashman explores a central paradox of the revolutionary era: aggressive enforcement of partisan property rules actually had stabilizing effects that allowed insurgents to build legal institutions that enjoyed popular support. Tracing the transformation from revolutionary disorder to legal order, Building a New Revolutionary State gives us a radically fresh way to understand the emergence of new states.
About the Author
Howard Pashman is an associate attorney at Karlin Associates, LLC in Chicago. He was a research fellow at the Indiana University Center on the Global Legal Profession.
Read an Excerpt
Law and Property in Colonial New York
The American Revolution sparked fundamental changes in New York's legal order. Colonial New York had been a society with a wealthy and prominent elite, widespread popular distrust of local legal officers like sheriffs, and very little property forfeiture. However, the war and particularly redistribution altered these traditions. Redistribution had great symbolic significance in undermining the power of elite Loyalists. It also changed popular attitudes toward local legal officers and made property forfeiture so common that for the first time it became a central priority in the province. Of course, these were not the only legal effects of the war, but they transformed long-standing colonial practices. By exploring these three areas — the symbolic power of redistribution, attitudes toward local legal officials, and the frequency of forfeiture — we begin to understand how the Revolution marked a radical break with colonial legal and property arrangements, pushing the province in unexpected directions.
The experience of Tryon County highlights the surprising ways that the war disrupted colonial practices. The county sat along New York's western frontier, a region that had been an outlying portion of Albany County for much of the colonial period. In 1772, after thirty years of population growth, it was separated from Albany County and renamed Tryon in honor of the royal governor William Tryon who had, among other things, crushed a popular uprising in North Carolina before taking office in New York. Despite this growth, the area remained thinly populated, its few settlements primarily along the Mohawk River. While the river was of central geographic importance, the Johnson family dominated political and economic life. William Johnson was the patriarch, having emigrated from Ireland to New York in the 1730s. Soon after arriving, he built a home that he named Fort Johnson near present-day Amsterdam. He married a runaway German servant, and, after she died, he began a relationship with his housekeeper, Mary (Molly) Brant, the sister of the Mohawk leader Joseph Brant. He turned these family connections into both diplomatic influence and lucrative trade among the Six Nations of the Iroquois. Through Indian trade and land speculation, he built up an enormous estate on which he encouraged tenant families to settle. He served as the superintendent of Indian affairs for the Northern Department and in 1755 was knighted. In 1763, he moved the family seat from Fort Johnson to Johnson Hall, a home more befitting his high status.
Johnson Hall in particular captured the family's immense influence. It was a grand, two-story manor house overlooking gardens and meadows, and from it he presided over an estate that covered nearly four hundred square miles. As the superintendent of Indian affairs, he held conferences with Indian chiefs on the grounds; as a land speculator, he conducted his commercial negotiations there, meeting with neighboring landlords and potential tenants. Carved out of a dense forest, the estate embodied the Johnson family's commercial and diplomatic power on the colonial frontier. Sir William died in July 1774, but not before trying to establish his legacy through the next generation. He arranged for his son, Sir John Johnson, to be knighted and for his nephew and son-in-law, Colonel Guy Johnson, to become superintendent of Indian affairs. Sir John moved into Johnson Hall, and Colonel Johnson built a home nearby at a place he named Guy Park. Thus, the second generation was just coming into power when, in the summer of 1774, extralegal committees started meeting in the county to discuss the growing crisis.
When committees first met, few resembled the revolutionary groups that would soon dismantle New York's colonial government. In August 1774, one such group gathered in a region north of the Mohawk River known as the Palatine District. Its members declared their "Concern and heartfull [sic] Sorrow" for the people of Boston, whose port Parliament had closed to punish Massachusetts for the Tea Party. Those at the meeting announced that they would support the Continental Congress, scheduled to convene the following month, as a way to resolve the crisis. Nevertheless, despite these "Allarming [sic] and calamitous Conditions," people in Tryon still declared their support for King George and the colonial leaders who governed in his name. The committee resolved that it would "bear true Faith and Allegiance unto him [George III], and that we Will with our Lives and Fortunes support and maintain him upon the Throne of His Ancestors." They considered it their "greatest Happiness to be governed by the Laws of Great Britain."
Despite this explicit royalism, Sir John and Colonel Johnson vehemently opposed any committee or congress as direct threats to themselves. Colonel Johnson believed that outsiders, probably from New England, had secretly moved into Tryon County and were plotting with local committees to attack him at his home and take him prisoner. As a result, he fortified Guy Park and surrounded himself with armed supporters every time he left home. He even stopped unfamiliar travelers on the open road, questioning them to see whether they were the outsiders who had come to arrest him. Sir John also viewed committees as dangerous groups, and he intimidated their members to prevent them from meeting. If he heard that a committee was gathering, he would lead his tenants to the meeting to break it up. In one instance, a group had gathered to put up a liberty pole. Sir John and his armed supporters rode through, knocking some people down, threatening others, and forcing everyone to flee.
When Sir John was not present to abuse committee members, his close associate Alexander White did so. White was the sheriff of Tryon County, and many people told the county committee about instances in which he threatened them for supporting committees and congresses. William Seeber described one incident where Sheriff White declared that he wished he had been present at a particular meeting so that he could shoot some of the people there and hang the rest. William's son Jacob overheard this threat and told White that it might not be so easy to do so. White turned on him, drew his pistol, cocked it, and said: "You d[amne]d Rebell, if you say one Word more, I'll blow your Brains out." Jacob, probably wisely, kept quiet. William Petry, a committee member, told of a time when he was in Johnstown and White stopped him to take him to jail. When Petry asked why, the sheriff refused to tell him. After spending the night in jail, Petry refused to sign a bond for his release because White still had not told him what he had done. Without any charges or process pending against Petry, the jailer let him go. White had good reason to think that he could throw a committee member into the Johnstown jail whenever he wanted. After all, White's patron, Sir John, claimed to own both the jail and the courthouse in the town that bore his family's name. Thus, committees in Tryon County were beleaguered groups, bullied and harassed by a powerful landlord family and the sheriff who did their bidding. Moreover, the intimidation and threats of violence succeeded in discouraging committee formation in Tryon. If they met at all, town and district committees did so as separate groups without uniting into a single committee to coordinate their actions.
In April 1775, the battles at Lexington and Concord emboldened committees to confront the Johnson family and the sheriff who had been threatening them. One such change came in May, when the committee of the Palatine District wrote to the Albany committee requesting ammunition and gunpowder. As the Palatine committee explained in its letter, Sir John had begun to fortify Johnson Hall. In addition, he and Colonel Johnson had armed a group of tenants and brought them to Johnstown, where they could better protect their landlord. The Palatine committee sought the ammunition to defend itself against Sir John and his militia of loyal tenants. In May, local committees joined together for the first coordinated, countywide meeting. Disregarding the opposition of the Johnsons and Sheriff White, various local groups came together in what they called the "United Committees." An explosive environment was developing in the spring of 1775, one in which newly assertive committees were arming to unite against powerful opponents who had tried to intimidate them.
At that moment, a small scuffle caused this tension to erupt into open conflict. In June, one of Sheriff White's servants, Thomas Hunt, decided to walk through John Fonda's fields. Fonda was out hoeing with some other men when he saw Hunt trampling the meadows and the grounds freshly sown with peas. As Fonda explained to the county committee, he told Hunt "not to make a road through his Land to his Damage, but to use the footpath along the fence." According to someone who was out in the fields with Fonda, Hunt replied that "he would go through that Land in Spite of said Fonda." Hunt, who was carrying a small scythe, made as though he was going to hit Fonda with it, and Fonda knocked him down with his hoe. Perhaps accustomed to hearing his master threaten people, Hunt promised to be the death of Fonda and continued to threaten him as he walked off. Hunt must have reported the incident to his master because a short time later White arrested Fonda and brought him to jail.
Events quickly escalated as the seething anger at White and his patron boiled over. Fonda's friends among the county committee decided that they were not going to suffer any more abuse from the sheriff. The committee gathered about one hundred people to free Fonda. When they arrived, they exchanged gunfire with White before he managed to escape and then freed Fonda. The committee and its supporters next sought reinforcements, and about five hundred men set out to arrest White, who took refuge in Johnson Hall. However, the group that freed Fonda soon realized that Johnson Hall was so heavily fortified that they would need cannons to attack it and capture the sheriff. Not having any artillery, the Tryon committee wrote to the committee in Schenectady (Albany County) to explain what had happened and ask for cannons "with all the implements necessary." As the Tryon committee put it in the letter, since "the Sheriff gives us a great deal of Trouble Insulting us on every occasion, and bids us open Defiance, we are therefore now determined to have him."
What began as a fight on a farm came to embody the mistreatment that many in Tryon had suffered from a high-handed local official and his wealthy patron. The Tryon committee, an extralegal group, reached out to other committees for help in taking this despised official who had insulted them as rebels. But, since the Schenectady committee did not have enough gunpowder to send, it forwarded the letter to the Albany committee, which rushed two of its members to Johnson Hall. The members of the Albany committee met with Sir John and convinced him to hand over White. They also extracted a promise from Sir John not to take any additional action in support of Britain. The Albany committee soon sent a militia detachment that arrested White and brought him back to Albany as a prisoner.
Sir John continued to stockpile weapons and, as many believed, rally support for the king among the Six Nations of the Iroquois. To prevent him from continuing this mobilization, Major General Philip Schuyler arrested him in January 1776, brought him to Fishkill, then released him on parole on the condition that he remain at home. But that restriction did not stop him, and the Albany committee continued to receive reports that he was organizing Indians and others on behalf of Britain. In May, the committee ordered the arrest of a number of people who were helping him. With a detachment of troops once again returning to Tryon, Sir John fled the family seat at Johnson Hall and led a group of supporters to Canada. Much had changed in Tryon County since the Palatine committee first convened in 1774 and declared that living under British laws was its greatest happiness. Over the two years that followed, revolutionaries in western New York slowly joined together to arrest a prominent royal official and force his patron, the most powerful landlord in the area, to flee. As the war progressed, revolutionary commissioners would confiscate and sell Sir John's personal property, conducting many of the auctions at Johnson Hall. Sales of his real property continued after the war as commissioners of the independent state carved up his estates and sold the lots to the highest bidders.
These events allow an exploration of some of the Revolution's transformative effects. In particular, the story of Tryon County invites a look both back to colonial practices and ahead to the war's deeply unsettling consequences. As the following chapter explains, the Johnson family, with its grand estates and political prominence, highlights the influence that elite landlords had in colonial New York. Moreover, colonial New York was a place where local law enforcement officials like Sheriff White were surprisingly common. Before the Revolution, sheriffs, justices of the peace, and other officers often acted in irresponsible and even criminal ways that inspired popular contempt for officials and their authority. Indeed, that contempt was widespread enough that it hindered legal administration in the colony.
By considering this colonial background, we start to grasp the radical nature of New York's revolutionary redistribution and state building. Insurgents in Tryon and elsewhere joined together to arrest prominent Loyalist landlords, drive them from their homes, and, ultimately, dispossess them. For families such as the Johnsons, property redistribution occurred at the manor house itself, thereby announcing that the revolutionary state was aggressive enough to dispossess even its most elite enemies. Not only did property confiscation have great symbolic significance, but it also represented a major change from colonial practices in which uncompensated forfeiture very rarely occurred. And insurgents were able to implement this far-reaching redistribution because they reversed the colonial contempt for local authority and instead drew ordinary people forward to help enforce the law. Of course, these changes were not the result of a specific program to pursue legal change and state building in particular ways. No statute or other legal mechanism had the explicit goal of undermining elite landlords in a way that announced the new state's authority while also generating popular support for local law enforcement and making property forfeiture a key policy in New York for the first time. Such careful planning would have been impossible in a legal environment as unstable as New York's during the war. As the committees in Tryon suggest, insurgents dismantled royal government in New York at the start of the conflict, leaving the province without a settled government to manage the transition to independence. The destruction of royal government thus unleashed volatile revolutionary forces that transformed society in unpredictable ways.
* * *
Long before redistribution occurred in the Revolution, the patterns of property ownership had exerted a major influence on colonial New York. The Dutch initially settled the area and established commercial forts, including New Amsterdam at the southern tip of Manhattan and Fort Orange (Albany) far inland along the Hudson. The colony came to be called New Netherland, and it remained under Dutch control until 1664, when Charles II issued a patent authorizing his brother James, Duke of York, to settle the region for England. Eager to assert his claims and to weaken Dutch commercial interests, James sent a fleet to New Amsterdam that seized the colony for England in August 1664. The first two English governors put landownership at the center of their policy for the newly captured colony. Both Richard Nicholls (governor 1664–67) and Francis Lovelace (governor 1667–74) believed that awarding large grants of land would consolidate English authority in general and their own power in particular. For example, in 1671, Lovelace granted Thomas Mayhew a tract called Tisbury that included most of the island of Martha's Vineyard and all of Nantucket. The grant also declared Mayhew "Governor or Chiefe [sic] Magistrate" with the authority to hold court and to determine particular matters that arose on his land. Early governors made such grants to bolster the colony's government. Grantees would form a constituency of support for New York's authority, defending it as the source of their ownership rights and other privileges. Thus, property ownership — particularly landownership — was vital for strengthening state authority from the earliest years of English rule.(Continues…)
Excerpted from "Building A Revolutionary State"
Copyright © 2018 The University of Chicago.
Excerpted by permission of The University of Chicago Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
Acknowledgments Abbreviations Introduction 1. Law and Property in Colonial New York 2. Confronting Disorder 3. A Bonanza of Tory Goods 4. The Enemies of the State Conclusion
Appendix Notes Bibliography Index