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.Footnote ¹ But remarkably, by the end of the War, they were able to develop the stable legal institutions of new governments.

This article takes one state, New York, to explore the transformation from insurgency to stable legal system. The key element in that change proved to be property redistribution. By seizing property from political enemies and selling it to allies or to professedly neutral people, New Yorkers rebuilt working legal institutions such as courts that enjoyed popular support. Expropriation, which occurred in every American state, highlights a central paradox in the history of the Revolutionary Era: out of the War's chaotic mixture of institutional collapse and partisan aggression, functioning legal structures emerged strong enough to enforce state policy.Footnote ² This article analyzes how property redistribution proved critical in the process of turning an unruly popular uprising into settled legal order.Footnote ³

Confiscation had a major transformative effect, because it offered material relief and revenge against enemies to a society that demanded both. During the War, New Yorkers suffered internal displacement, shortages of basic goods, and inflation. For people struggling in such conditions, property redistribution provided them with a desperately needed subsistence. Moreover, it created a constituency with a stake in the revolutionary regime, people whose material security, sometimes even their survival, depended upon the regime's stability. War also stoked a desire for revenge against Britain and its supporters. New Yorkers wanted to strike back at the occupying army, and expropriation resonated with that desire for vengeance. It offered New Yorkers an institutional means for settling the score. In this way, redistribution drew in supporters from one side and dispossessed political enemies from the other, thereby consolidating the legal authority of a revolutionary state.Footnote ⁴

However, it is important to note that neither New Yorkers, nor any other Americans, confiscated property with the explicit purpose of developing durable legal structures. No statute or legal opinion announced that confiscation would strengthen the regime's authority. Instead, New Yorkers' conscious intention was winning the War, and they believed that seizing property would help them do so. But expropriation had radical effects that insurgents could not foresee.Footnote ⁵ By analyzing redistribution, legal historians studying America, as well as other revolutionary societies, can see those effects and understand how insurgents built support for revolutionary legal institutions.

This article tries to restore ordinary people to the story of the creation of a new legal order. It draws on a rich literature of legal history that has generally taken a different focus. American legal historians have overlooked the challenge of transforming a popular uprising into a stable legal system. Some, for example, have examined the colonial period before the War and the federal system after it,Footnote ⁶ but the actual years of open revolution have disappeared from these accounts and left open the question of how legal order emerged from insurgency. Other studies consider the Revolutionary Era from a constitutional or doctrinal perspective. They examine the first post-independence constitutions to see whether concepts that prevailed in the colonial period, such as popular constitutionalism, became part of the Early Republic.Footnote ⁷ However, thinking about the Revolutionary Era in constitutional terms is highly misleading, because written constitutions, and many statutes, remained unenforceable long after their enactment. During the War, institutions from legislatures down to village constables either did not exist at all or were too weak to implement the law. Americans, in that moment of great upheaval, had to rebuild structures capable of enforcing law on the ground. If they did not do so, if they failed to create a legal infrastructure, then the new constitutions would have remained a dead letter.Footnote ⁸ Envisioning that volatile world as a constitutional event—as many historians have done—overlooks the disorder that prevailed when Americans re-established working institutions in the middle of a war.

John Jay, a revolutionary leader of New York, reminds us of the pressing need to refocus legal history during this period. He understood that merely enacting a constitution, without more, did little to rebuild functioning institutions. Before Jay became the chief justice of the United States Supreme Court, he helped to write New York's first post-independence constitution. Shortly after a convention promulgated the new constitution in April 1777, Jay wrote that “[w]e have a government to form. God knows what it will resemble.”Footnote ⁹ As Jay recognized, New Yorkers had little more than words on a page. The challenge still remained of turning those constitutional aspirations into daily practice. And in a society without working legal institutions, Jay had good reason to wonder if that might happen. By the middle of 1776, New York's legislature had stopped meeting, its courts had ceased convening, and its governor had fled to a British ship in New York harbor. The Supreme Court of Judicature—New York's statewide court of general civil and criminal jurisdiction—reconvened under the new constitution in September 1777. However, the court, along with the legislature, soon fled a British raiding party and did not meet again until the following year.Footnote ¹⁰ County-level courts—Common Pleas and General Sessions of the Peace—started to reconvene at different times throughout 1778, which meant that many parts of New York did not have regular court meetings for more than 2 years. Even when courts finally met, they had very short dockets and often failed to gather all of the witnesses, jurors, constables, and other people needed to transact legal business.Footnote ¹¹ The Revolution had destroyed imperial authority before stable, independent institutions could replace the old order. New Yorkers then found themselves in a chaotic world without familiar legal structures.

Revolutionary instability did more than trouble John Jay and his contemporaries. It has raised interpretive challenges for how American historians understand legal order. Scholars are accustomed to examining courts, statutes, constitutions, and other formal aspects of law. Institutional and doctrinal concepts have been central to historians' notion of America's legal past; they have been the warp and weft of legal order as historians have understood it. It has become impossible to imagine what that order might resemble in a time and place, such as revolutionary New York, where those institutions came undone.Footnote ¹²

But by recasting the debate in new terms, we begin to understand what legal order meant at that volatile and violent time. Instead of approaching the period from a doctrinal or constitutional perspective, this article considers the legal history of the Revolution more in anthropological terms, asking how ordinary people experienced law on the ground. In taking this approach, the article follows a long tradition of anthropologists who have examined law in the context of lived experience.Footnote ¹³ By analyzing the daily experience of law, rather than constitutional abstractions, we gain new insights into the nature of legal order in a time of revolution. Moreover, adopting this new approach also requires different sources than historians have typically used to understand law in the Revolutionary Era. Examining constitutions and the conventions that wrote them may offer good sources for doctrine,Footnote ¹⁴ but to understand law on the ground, we have to look to local manuscript records. Doing so allows us to study legal conditions at a time when state institutions failed and central authority was in disarray. This article, therefore, tries to open up new sources that legal historians have not typically used before. Through auction lists and account books, payment vouchers and sale statements, we see how insurgents rebuilt a legal system on the ground and developed popular support for the authority it wielded.

This article analyzes how property redistribution proved critical in that process. It examines how a group of revolutionaries called the “Commissioners of Sequestration” provided material relief to a society suffering shortages and inflation. The Commissioners did so by seizing the personal property of British sympathizers, auctioning it off, leasing the vacant farms, and paying anyone who helped to redistribute goods. At a time when courts had failed and the legislature remained feeble, the Commissioners' work represented one of the few ways people could experience the law of New York's revolutionary regime. And that legal experience—from auctions, to leases, to direct payments—resonated with people who desperately needed a subsistence.

The article then examines how the Commissioners addressed the other urgent priority of the War: seeking retribution against Britain and its Loyalist supporters. As British troops destroyed whole towns and otherwise abused inhabitants, many New Yorkers wanted to take the law into their own hands to seek revenge. Expropriation of personal property, conducted publicly in front of whole communities, announced to violent partisans that they did not have to settle scores on their own. Instead, they could rely on the Commissioners, perhaps even help them, to dispossess political enemies. Thus, partisan, vindictive property rules co-opted violent New Yorkers, convincing them that they did not have to confront dissidents. They could trust the regime's legal institutions to do it for them. The concluding pages then discuss the literature on redistribution during the American Revolution, and suggest how this article has offered new ways of understanding the period.

The article covers the period roughly from 1776 to 1779. It was a time when New Yorkers took early, uneasy steps toward rebuilding their legal system, although the challenge of developing those structures did not end abruptly in 1779.Footnote ¹⁵ It continued at least through the rest of the War, as courts reconvened and the legislature stopped fleeing British raids long enough to begin governing. But in the early years of the war, New Yorkers laid the foundation for a working legal system. They confiscated property from political enemies and redistributed it to allies in a way that convinced people to accept the authority of a revolutionary order.

Forcible dispossession proved crucial in consolidating the legal authority of New York's revolutionary regime.Footnote ¹⁶ Such a claim might be unsettling to someone who expected to find a greater respect for rights in America's legal past. It may also appear counterintuitive to argue, as this article does, that expropriation would lead to a stable legal order that ordinary people accepted. After all, one might think that ignoring ancient procedures such as trial by jury, as New Yorkers often did, would amount to a denial of law, its absence, rather than a sign of its renewal, but that was not the case. The revolutionaries who redistributed property transformed a chaotic environment into a new legal system based on popular consent. Through aggressive partisanship, an unruly and sometimes brutal enforcement, insurgents developed a legal order that worked for the people.

* * *

The initial step in the transformation from revolutionary law to a stable legal system began with the breakdown of New York's colonial government. By mid-1776, its colonial legislature had stopped meeting, its courts ceased convening, and its governor had fled to a British ship in New York harbor. 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 upon 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 resembled statewide 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, committees emerged in a chaotic jurisdictional environment where the source of legitimate authority remained unclear.Footnote ¹⁷

Popular violence amplified the sense of instability. 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. At night another mob led a group of Tories on a candlelit procession, pushing their heads into the flames to burn their faces.Footnote ¹⁸ The point here is not to provide a grisly catalogue of abuse, but, rather, to show that no person or legal institution could have prevented 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.”Footnote ¹⁹ In the absence of formal government, mobs emerged and took the law into their own hands. It was even more worrisome that they seemed to exist outside all institutional authority, not even subject to the resolutions of revolutionary committees. Nobody who saw these riots, or others like them, would have predicted the restoration of a stable constitutional order. Legal anarchy seemed more likely than formal prosecutions.

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 thousands. By the fall of 1776, more than 11,000 refugees had fled New York City for surrounding areas. At the same time, approximately 4,000 people went the other way to seek the protection of the British army.Footnote ²⁰ 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.

The refugees who fled from the British army found themselves in dire circumstances. In addition to those who escaped from New York City, many others fled Long Island. In 1776, they escaped across Long Island Sound to Connecticut, where they arrived destitute and terrified. In October 1776, Jonathan Sloss Hobart, a delegate to the Provincial Convention, reported what he found in Fairfield, Connecticut. He explained to the Committee of Safety that “the indigent from the island” had arrived in such numbers that people in Connecticut would soon be unable to care for them. Moreover, these refugees required a basic subsistence because they did not bring “the means of support with them.”Footnote ²¹ The Convention brought this long internal migration to an end in June 1777 when it moved the refugees from Connecticut to Dutchess County, New York, where they joined others who had fled New York City.Footnote ²²

However, bringing them back into New York did not resolve the challenge of providing them with a subsistence. New Yorkers still had to find them food and shelter, and many counties such as Orange, Ulster, and Dutchess were in no position to do so. In 1776–1777, the running battles between the British and Continental armies had already strained the resources of the region. In April 1777, the Ulster County Committee wrote to the Convention to ask for reimbursement for those who had cared for sick and wounded Continental troops. The letter explained that the people of Ulster County were “in low circumstances” and were struggling to look after the troops, most of whom “were lousy and in wretched” condition.Footnote ²³ Refugees from New York City and Long Island arrived in a place that could not afford to support them.

The delegates to the Provincial Convention, like many other New Yorkers, ran for their lives. They fled the British army and, toward the end of 1776, declared that their society was “reduced to the great laws of self-preservation.”Footnote ²⁴ In July 1777, a printer who had fled New York City for Kingston, echoed this sense of calamity. He described his own flight and the previous months as “a sea of tyrannic violence and rapine.”Footnote ²⁵ That moment at the start of the Revolution captures the challenges that New Yorkers faced as well as those that confront legal historians today. The colonial state collapsed; internal migration and open war impoverished much of New York; what passed for the government fled its capital city and declared that it was trying to preserve society from destruction. These events raise the question of how, in a chaotic uprising, ordinary people came to accept the legal authority of a revolutionary regime. New Yorkers could have ignored the feeble regime or thwarted it. They could have continued working through local committees or just taken the law into their own hands as mobs. Instead, ordinary men and women came forward to assist revolutionary legal institutions, and they did so through the expropriation of Loyalists. People embraced those institutions because property confiscation offered the material relief New Yorkers desperately needed.

In March 1777, under the strain of two armies and a wave of refugees, New Yorkers began their first organized effort to redistribute enemy property. The Convention created Commissioners of Sequestration to operate in every county outside of British control. The Commissioners' duties were straightforward. They would confiscate all the personal property of those who had fled to the British, advertise the seizure in the newspaper, then auction everything off. The Commissioners would turn the proceeds of the sales—and any money they had found in the houses—over to the state's treasurer. It is worth noting what the Commissioners did not have to do. They did not have to conduct investigations; they had no procedural restrictions such as grand or petit juries; they did not have to obtain any warrants or writs. The only restriction on the confiscations and sales related to the families left behind. The Commissioners had to leave the families' clothes, some furniture, and 3 months' worth of provisions.Footnote ²⁶ The Commissioners' powers grew throughout 1777 as the Convention added additional responsibilities, such as renting out, on 1 year leases, farms left unoccupied. The rent, like the proceeds from the auctions, went to the Convention.

The resolution that empowered the Commissioners suggested the character of their authority. In the preamble, the Convention acknowledged that “diverse ill disposed persons…have joined our cruel and inveterate foes and the effects of such persons…are liable to waste or maybe employed for wicked purposes within this State…or consist of goods & merchandise useful to the well affected inhabitants of the same.”Footnote ²⁷ The Convention declared that many New Yorkers had gone to support an occupying army, leaving their possessions behind. Rather than risk those goods falling into Loyalist or British hands, and rather than letting them go to waste—letting cows starve or wheat rot in the fields—New Yorkers, the good ones at least, could benefit. In one move, New Yorkers would strike a blow against Loyalists and help political allies who needed assistance.

The Commissioners' ability to provide goods soon acquired a significance nobody anticipated. In June 1777, British General John Burgoyne invaded New York from Canada, spreading fear and violence as his army marched south. At the same time, British raiding parties moved north, attacking towns such as Peekskill, Kingston, and Danbury, Connecticut, near the New York border. Many fled their homes to escape the fighting while raids and counter-raids continued all around them. After New York suffered two invasions in as many years, inflation began to take hold in the summer of 1777, making it hard for New Yorkers to procure basic goods. Inflation became such a concern that some thought it could destroy the state and undermine the entire Revolution. In July 1777, the printer John Holt decried how inflation forced New Yorkers to pay as much as ten times as usual “for the necessaries of life.” Such inflation would weaken states and “be extremely dangerous to our common rights and liberties.”Footnote ²⁸ A destitute people could not sustain their fight for very long, and, therefore, failing to provide some minimal subsistence would have disastrous consequences.

Supporters of independence realized that they had to relieve the suffering such shortages caused. They sensed that the legitimacy of their legal authority depended upon it. In October 1777, Jonathan Sloss Hobart reminded the Convention that it had promised to provide salt, and that New Yorkers expected it to do so. As Hobart explained, “the honour of government” depended upon delivering such vital provisions.Footnote ²⁹ The following month, New York's Council of Safety prohibited the exportation of wheat, because the delegates believed that the state had “the indispensable duty” to provide its citizens with the basic articles of life.Footnote ³⁰ Providing material relief had become a crucial responsibility of government, and supporters of independence realized that New Yorkers would never accept a state that allowed them to suffer and starve. In those straitened circumstances, New Yorkers needed a subsistence, and the Commissioners were in a position to provide it.

Many New Yorkers suffering the ravages of war did not wait for the Commissioners to oversee the redistribution of property. When Loyalists fled to the British, neighbors often took the personal property that they left behind. Some Loyalists tried to avoid this looting by distributing their goods to friends and family before leaving. But between the Loyalists who tried to hide their property and the neighbors who wanted to take it, the Commissioners struggled in the initial task of locating the property to confiscate. And even when they found it, few people willingly gave it up. As the leading edge of revolutionary authority, Commissioners had to overcome the hostility of people who did not welcome the intrusion of central legal institutions. Commissioners had to convince New Yorkers to stop taking matters into their own hands and, instead, to work with the legal institutions of a revolutionary regime.

The Convention soon expanded the Commissioners' power to help them overcome this problem. On March 21, 1777, only a few weeks after empowering the Commissioners, the Convention acknowledged that the initial grant of authority “may, in some instances, be found incompetent.” Now, when someone refused to turn over personal property, the Commissioners could ask local committees or militia officers “for such aid as may be judged necessary.”Footnote ³¹ The resolution added a coercive power that the Commissioners were eager to employ. In May, the Commissioners for Dutchess County—Theodorus Van Wyck, Henry Livingston, Jr., and Isaac Sheldon—took the opportunity to warn those who might be hiding enemy property. They announced in the newspaper that “many persons have, or may, fraudulently, or inadvertantly [sic]” buy goods “from the friends of those who have gone over to our enemies.” The Commissioners wanted “to give public notice” that “the personal property of all such disaffected persons will be considered liable to sequestration, let it be found in whosesoever [sic] hands it may.”Footnote ³² Aggressive Commissioners—supported by the power to call out the militia—declared their intention to carry revolutionary legal authority to people disinclined to accept it.

As Commissioners began their work, they employed everything from bribery to intimidation to overcome this initial distrust. The Commissioners' first step was linking up with a like-minded revolutionary who knew the political landscape of a town. An inventory of goods prepared by Benjamin Birdsall for the Dutchess County Commissioners suggests how insurgents and their supporters brought central legal institutions to people who had been ignoring them.Footnote ³³ Birdsall was not a Commissioner himself, but in December 1778, he prepared an inventory that appears with the Dutchess Commissioners' papers. The document resembles a road map, one that could lead the Commissioners through convoluted attempts to hide Loyalist property. The report offered an “Account of Confiscated Goods” that used to belong to “Mr. French.” Footnote ³⁴ Birdsall explained that Zebulon Seaman and John Conckling had found various goods, including joiner's tools, “in a heap of Straw” near “the Barn Mr. French ust to owyn [sic].” When Seaman and Conckling brought the items into the house, Richard Marks and Robert Giffords were surprised. Marks and Giffords had hidden the tools after they had found them in French's cellar. They had found all of the axes, trowels, augurs, chisels, and boring bits “in the Conceald [sic] place” behind a wooden partition. Giffords then told Birdsall that he knew to look in the partition because John Commins had suggested doing so. And Commins had received his information from Bryant. Thus, French, or someone else, had hidden the tools behind a wall in the basement; Bryant found this out and told Commins; Commins mentioned it to Marks and Giffords, who broke open the wall and hid the tools behind the barn; then Seaman and Conckling “axsidently found the articles” there.Footnote ³⁵

Birdsall unraveled this twisted chain of possession only when the parties told him about it. Marks and Giffords hid the goods because when “they first found them they thought they had as good a Rite to them as any body.” But, they claimed, they thought twice about it and decided to explain everything to Birdsall, who in turn reported it to the Commissioners.Footnote ³⁶ More likely, however, Giffords and Marks realized that they would have a hard time keeping the goods for themselves after Seaman and Conckling had found them. But whatever their motives, all of these machinations occurred out of the sight of the revolutionary regime. New Yorkers were willing to take Loyalist property without any regard for the regime or its Commissioners.Footnote ³⁷ The Commissioners relied on allies such as Birdsall to guide them through a tangle of local considerations.

Not everyone volunteered, as Marks and Giffords had done, to give up the Loyalist goods. In such instances, the Commissioners would try to negotiate with those who had taken the property. An account from the Middle District of Albany County suggests how this bargaining happened. In September 1777, the Commissioners—Flores Bancker, Myndert Rossboom, and George White—had found enemy property scattered about in different people's possession. Those people had taken everything from horses, to desks, to bushels of rye. Initially, they refused to allow the goods “to be Accounted for or delivered up.” But the Commissioners were persistent and, after “Different Applications,” they “obtained settlements” from those who had taken the goods. The Commissioners listed the amount each person agreed to pay to keep the items he already had in possession.Footnote ³⁸

The settlements that Commissioners extracted, however, were not the product of free and open bargaining. Those who refused to cooperate might find a militia detachment at their doors. The procedure often began with a denunciation, as it did when someone named Storms reported his neighbors to the Commissioners for Dutchess County. In August 1778, Storms informed the Commissioners of “Tory goods that are Kept Conceald [sic]” and who was hiding them.Footnote ³⁹ The Commissioners asked a Captain in the militia, Bernardus Swartwout, to arrest those in the denunciation along with others who had aroused suspicion. Capt. Swartwout then reported to the Commissioners that he had gathered the suspects together for the Commissioners' “own examination and further Pleasure.”Footnote ⁴⁰ In addition to detaining suspects, the Commissioners might also order the militia to seize enemy property from the person who had it in possession. In August 1779, the Dutchess Commissioners ordered Captain William Pierce to go to Edmund Ferris' farm in Pawling's Precinct. Ferris had two cows that belonged to someone who “has joined the Enemies of the State of New York.” The Commissioners ordered Captain Pierce “to take as many of your Company of Militia, as you may think proper” to seize the cows from Ferris.Footnote ⁴¹

It is unclear when a Commissioner might have stopped bargaining and called on the militia, but this coercion represented part of the legal authority of the revolutionary regime.Footnote ⁴² Someone who refused to turn over goods, or whom a neighbor had denounced, could find himself confronting soldiers who wanted to arrest him or seize his livestock. Therefore, Commissioners relied on bargaining, information from allies, and intimidation to overcome public wariness and to bring revolutionary legal authority to the people.

Bribery, however, proved far more common than any of those techniques. Commissioners rarely called on the militia, because their direct payments to New Yorkers reinforced their legal authority. When a Commissioner seized property and auctioned it off, he needed help with a thousand little tasks, from creating an inventory of goods to pasturing livestock. And to make sure that they received that help, Commissioners paid for it under the heading of “Contingent Expenses” or “Incidental Charges.” Commissioners paid people who came forward to help them, collected vouchers from these assistants, and then submitted the vouchers to the Convention for reimbursement. In addition, the treasurer and Commissioners each maintained accounts of the balance of payments. These routine administrative records reveal a vast network of hired support, one in which Commissioners paid New Yorkers, that is, bribed them, to come forward and help insurgents dispossess their enemies.

For New Yorkers suffering during the War, and even for those who had been taking property for themselves, direct payments represented a powerful incentive to support the regime's fledgling legal institutions. When a Commissioner arrived in town, he hired people to perform a wide variety of tasks, some lasting a short time and others employing people for months. A voucher from September 1779 suggests a brief employment for Alexander Lamb. Lamb gave the voucher to acknowledge that Van Wyck, one of the Commissioners for Dutchess County, had paid him a little more than ₤3 “for Carying [sic] off the property” of someone “gone to the Enemy.”Footnote ⁴³ Similarly, James Hunt, one of the Commissioners for Westchester County, gave a voucher to John Haines. In September 1777, the Commissioners paid Haines for the time he spent “in Search of the Stock the property of the State and wriding [sic] express to Set up Advertisements” of upcoming auctions.Footnote ⁴⁴ The regime was paying people to fulfill the tasks that its legal institutions were too weak to perform on their own.

The Commissioners paid New Yorkers to help with every conceivable aspect of confiscation and sale. George Palmer's accounts, from the Northern District of Albany County, suggest the range of these responsibilities. In May 1777, Palmer began gathering the goods from two confiscated estates, but to do so, he had to hire a small army of assistants, beginning with seven people to gather the goods and to pasture livestock. He also hired someone to spend 4 days taking an inventory of all the property before beginning the enormous undertaking of carrying the goods to one location for sale. Palmer hired seventeen people to spend days carting the goods and moving the livestock.Footnote ⁴⁵

The procession must have stretched far out along the roads as they drove confiscated cows, sheep, and horses next to wagons full of everything from waistcoats to iron kettles. Moreover, Commissioners such as Palmer did not wait for a particular auction to hire assistants. They kept some people employed for weeks searching for enemy property. Palmer paid three people for 5 weeks “Collecting Tory goods.” He paid others for 5 days, 1 week, or 9 days spent at the same task.Footnote ⁴⁶ He would then have to pay others to pasture the livestock, drive the animals to auction, and perform all of the other steps in redistributing property. New Yorkers had begun to accept the legal institutions of a revolutionary regime when those institutions paid for the assistance.

Palmer's itemized lists represent part of a much larger world of payments. Other Commissioners accounted for their contingent expenses without specifying the person hired or the services he performed. For example, the state's account with Elihu Marvin and Isaac Nicholls, Commissioners for Orange County, reveals that they had disbursed money as they went about their work. The state then accounted for the debt they owed the Commissioners.Footnote ⁴⁷ Similarly, the Commissioners from the Middle District of Albany County accounted for their disbursements, only occasionally noting that the payments went to someone “for Pasturage” or a similar service.Footnote ⁴⁸ In some instances, Commissioners paid suffering families who had not performed any service, but who required relief. Peter Dygart—one of the Commissioners for Tryon County, on the western frontier of New York—accounted for the money and grain he had given to “distress'd families.” He paid out specie, Continental currency, flour, and corn to people struggling to survive the war.Footnote ⁴⁹ The revolutionary government ran behind on its accounts and people often had to wait to receive payment in full. Nevertheless, Commissioners traveled around New York, distributing money to an impoverished population that had few other means of support. All of these direct payments to a suffering society helped to persuade New Yorkers to accept the regime's legal authority.

Auctions also helped to provide the material relief that New Yorkers needed. After the Commissioners and their paid assistants gathered all of the property, they were under great pressure to sell quickly. Commissioners hurried because they could not always find sufficient pasture for the livestock, nor could they locate secure places to store the goods, away from greedy neighbors and British raids. A December 1777 letter from Hugh Rea to Isaac Sheldon, one of the Dutchess County Commissioners, suggests why they needed to hold auctions quickly. Rea, a farmer from Northeast Precinct in Dutchess, informed Sheldon that he had taken “the Inventory of the personal Estates of those that has [sic] Obsconded to the Enemy,”Footnote ⁵⁰ but he warned that “forage is scarce for Cattle” and “some of the Goods may be lost Notwithstanding all the Care that Can be Taken.” Rea explained that he “would therefore be Glad you proceed To the sale of them as soon as you Can.”Footnote ⁵¹ The difficulties of storing goods multiplied when Commissioners oversaw confiscations in several towns at once. Therefore, New Yorkers required basic necessities and the Commissioners were in a hurry to sell them the goods they needed.

The Commissioners offered that subsistence through a bonanza of confiscated property. Auctions took place in those parts of the state outside British control, particularly in the early years of the war. The most detailed auction books come from the Northern and Middle Districts of Albany County. From 1777 to 1779, the lists record 429 individual sales to 205 different purchasers, suggesting a sizeable market in a part of the state where traveling to auctions was difficult much of the year. The median price of these goods was £2.11.0.Footnote ⁵² However, sale prices remain only a rough guide to the actual cost, because purchasers went years without paying. Commissioners from Dutchess and Westchester Counties compiled lists of bad debts in which they recorded the names of people who had purchased goods on credit but then went years without satisfying the debt. Given the lack of circulating currency, Commissioners had little choice but to sell on credit. These generous sale terms meant that a New Yorker could enjoy frying pans, sorrel mares, desks, oats, and cartwheels for as long as 5 years without paying anything for them.Footnote ⁵³

The auction lists from around the state reveal an enormous selection of goods. The Commissioners got their hands on everything: bushels of wheat, corn, rye, and barley; mill stones; wheat still growing in the ground; blankets; joiners' tools; an anvil; a pair of tongs; sleighs; tackling for the sleighs; a yoke of oxen; ten sheep; a sow; a sow with pigs; five looms; a piece of polished tin; a pair of stockings; axes; three sloops; windows and doors stripped out of houses; a single stick of ash wood. The Commissioners also offered more elegant items: table linens, feather beds, costume jewelry, mahogany desks, silver plate, mirrors, bolts of finished cloth, even a jacket for £20, which was more than the going rate for an ox.Footnote ⁵⁴ All of these goods went out to a needy society that had few other means of support.

The Commissioners themselves found these auctions as beneficial as other New Yorkers did. They exercised a right of first refusal, selecting the property that they wanted before putting the rest up for sale. In December 1777, Dutchess County Commissioner Van Wyck told his fellow Commissioner, Livingston, about some property that he had set aside for himself. He mentioned that among the confiscated goods on a particular farm were “4 fatt hoggs” that he had already picked out. Van Wyck asked Livingston not to sell those animals, for which he promised to pay “the Market price,”Footnote ⁵⁵ but nobody knew what that price could be, as the Commissioners, like other New Yorkers, bought most of their goods on credit. They seldom paid at the time of sale and were not in any hurry to do so afterward.Footnote ⁵⁶ Moreover, they purchased goods at auctions that they themselves were overseeing. For example, Orange County Commissioners John Coe and Gilbert Cooper bought property at sales that they had organized.Footnote ⁵⁷ These practices led to the curious circumstance in which a Commissioner bought goods from himself, on credit, and then became responsible for collecting the debt from himself. Although this arrangement did not violate any of the Convention's resolutions, it was a self-serving one that Commissioners could use to enrich themselves. In having this opportunity for private gain, however, the Commissioners were no different from other New Yorkers. All allies of the revolutionary regime—anyone who accepted its legal institutions and their authority—benefitted from confiscation when they bought goods or worked for a Commissioner. Whether or not they were Commissioners, they all could see that allegiance had its rewards.

Other auction lists hint at a much larger redistribution network. For example, the lists from the Middle District of Albany County summarized sales numbered twenty through twenty-six, suggesting that at least nineteen additional auctions took place for which records no longer exist.Footnote ⁵⁸ The sale books from Ulster County once filled four volumes, before they all burned in a 1911 fire at the capitol building in Albany.Footnote ⁵⁹ Relying on documents that later burned in that fire, one editor compiled a list of 1365 people whose personal estates were confiscated and sold during the Revolution.Footnote ⁶⁰ Taking the sale period to be the 6 years beginning in April 1777, the Commissioners confiscated the property of 227.5 people every year. That frequency meant that they expropriated 4.375 people every week for 6 years. The auctions, therefore, were ubiquitous events in revolutionary New York. Even when the regime was feeble, too weak to convene courts, it sent out Commissioners who rounded up property and sold it. These sales not only represented one of the few ways that New Yorkers regularly came into contact with central authority, but the auctions also bolstered that authority. At a time when the regime had an indispensable duty to provide basic goods, it did so by redistributing property.

Leasing real property such as farms—the Commissioners' other key responsibility—also helped to extend the regime's legal authority. On May 13, 1777, the Convention empowered the Commissioners to lease, on 1 year terms, farms that belonged to Loyalists who had fled to the British. The resolutions specified two requirements for the lessees. First, the Commissioners had to lease the farms “to persons friendly to the cause of America.” Second, the Commissioners were to give priority to those “who have been driven from their habitations by the enemy.”Footnote ⁶¹ These resolutions placed the regime, through the Commissioners, at the top of a patronage network that distributed material relief to allies. Supporters of the cause and those who suffered at the hands of an occupying army would have a roof over their heads in winter, or a few acres to feed their families. Others would find themselves left to the vicissitudes of war. By rewarding allies with a subsistence, Commissioners offered a powerful motive for New Yorkers to accept the regime's authority and to count themselves among the friends of the cause.

The Commissioners quickly embraced their new duties. In June 1777, the Commissioners for Dutchess County took out a newspaper advertisement to announce their new leasing power. In a notice resembling the commercial advertisements that had filled newspapers before the War, the Commissioners quoted the resolutions and then declared that they were “ready at all times to attend persons applying for farms as before particularized.”Footnote ⁶² The Commissioners were open for business and New Yorkers, suffering material shortages and internal displacement, leapt at the chance to gain a farm.

Hopeful lessees came forward on behalf of themselves, their friends, and their families, all eager to win some of the patronage that the regime had to offer. In December 1777, Van Wyck, one of the Dutchess Commissioners, wrote to a fellow Commissioner, Livingston. Van Wyck explained that Daniel Pelton had asked for a certain farm “in favour of himself, his mother's and sister's families.” Van Wyck suggested that if Livingston had not already promised the farm to someone else, then Van Wyck was “willing he [Pelton] should have” it.Footnote ⁶³ Other applicants arrived with a letter of introduction to persuade Commissioners to lease a farm to them. In the same month, Hugh Rea wrote to the Dutchess Commissioner Sheldon asking him to sell confiscated property quickly, but Rea made sure to have John Schemerhorn deliver the letter, as Schemerhorn “wants to hire John Peter Rows [sic] place of you and I would be Glade [sic] you would Assist him in Getting of it by Speaking to the rest of the Commissioners for him.”Footnote ⁶⁴ Whether they requested a farm on their own behalf or through a letter of introduction, New Yorkers welcomed the Commissioners and the subsistence that they provided.

Most of those who applied for a farm, however, knew that merely asking for one was rarely enough to secure a lease. They had to establish their political bona fides for the Commissioners and, as the Convention's resolutions made clear, New Yorkers could do so in either of two ways. They could demonstrate that they were friends of the cause or that, as refugees, they had suffered at the hands of a common enemy. These requirements encouraged New Yorkers to announce their support for the regime as they tried to persuade Commissioners to offer a lease. In October 1778, Herman Hoffman wrote to Van Wyck and Livingston to suggest that Mr. Fisher receive the dilapidated farm of Jacob Poucher, who “is now with the Enemy at New York.” Hoffman wanted to “Take the Liberty of Recommending him [Fisher] to you as a good friend to the Good Cause of America.”Footnote ⁶⁵ New Yorkers such as Fisher and Hoffman understood the connection between allegiance and material relief. If someone hoped to receive a farm, he needed to demonstrate that he welcomed the regime and its legal authority.

With the possibility of a subsistence at stake, New Yorkers disputed with one another over whose devotion to the cause was purest, whose support for Revolution most clearly demonstrated. One such disagreement arose in March 1778 when the local town committee of Rhinebeck wrote to the Commissioners of Dutchess County. Peter Heermans, the chairman of the committee, objected to the Commissioners' decision to lease a farm to John Vradenburgh. Heermans protested that another tenant who was more deserving, Harmon Knickerbacker, already lived on the property. Vradenburgh did not deserve the farm because he “only pretends to be” neutral when in fact he “is not a friend to the Cause of America.” Moreover, he already had “a good House which he Occupys [sic] and does not want the other place, Unless it be to make gains by.” On the other hand, Knickerbacker “is Warmly Attach'd to our Common Cause which he as prov'd by his voluntary Service in the Army with the Militia as Lieut[enant].” And if he did not receive that farm, he “has no Other place for himself and family.” Because Knickerbacker was a strong supporter of the cause and he needed the farm, “it is the Sense of this Committee that he ought of Right to have the preference.”Footnote ⁶⁶ In this context in which allegiance could bring tangible benefits, New Yorkers were eager to declare just how fully they supported the Revolution. The Commissioners' leasing power thus rewarded strong support and created an environment in which New Yorkers welcomed the regime's authority.

Some New Yorkers needed no incentive to embrace revolutionary legal institutions. They were in such horrible circumstances that a subsistence from the Commissioners represented the only chance for survival. In January 1779, during a long winter, Van Wyck, a Commissioner for Dutchess County, decided to lease a farm to John Campbell. Campbell then wrote to Livingston, another Commissioner for Dutchess, to ask if he agreed with the decision. Campbell described how dire prospects had become for his own family and for his brothers-in-law, all of whom were refugees. Campbell pleaded with Livingston, because his two brothers-in-law “have Twelve Children the Oldest not Eleven years old and to my knoledg [sic] one of those Famelies [sic] have been Six weeks this winter without Bread.” Campbell's own family was not faring much better “and when the small remains is gone I brought out of New York [City] this must be my situation unless you relieve me.”Footnote ⁶⁷ The Commissioners placed all three refugee families on the farm.Footnote ⁶⁸ For many New Yorkers trying to survive the War, the regime's legal institutions provided the only stable subsistence. These people welcomed the Commissioners because their power to grant leases kept starvation at bay.

The promise of material relief proved such a strong attraction that the Commissioners struggled to accommodate everyone who applied for a lease. To meet all of the requests, Commissioners shuffled tenants around, moving them from one house to another, or dividing the yield from a farm among different tenants.Footnote ⁶⁹ The Commissioners also leased outbuildings on the same farm to different tenants, especially if many people had asked for a specific building, such as a brew house.Footnote ⁷⁰ So many applicants, some desperately in need of shelter, came forward, that the Commissioners hurried to settle everyone on farms. In their hurry, however, they did not inquire into whether anyone had competing claims to the property they leased. As a result, New Yorkers, usually Loyalists' family members, came forward to object, often threatening to turn out the lessees. In one instance in February 1779, Van Wyck wrote to Livingston to let him know that he had leased a house and 2 acres to a refugee named Richard Willis. The property used to belong to John Haviland, who “was now with the Enemy.” But John Haviland's father, Isaac, “has warn'd Mr. Willis out” and threatened to appeal to Egbert Benson, the attorney general. Van Wyck, however, was not concerned about the lease because Haviland had fled, and Willis—a refugee who therefore had preference to the land—had taken possession.Footnote ⁷¹

Although neither the applicants nor the Commissioners worried about uncertain leaseholds, the people who had claimed a prior interest in the land started to complain about new tenants being put in possession. In September 1779, the objections to leases reached the legislature, which began very slowly to review them. In the following month, the legislature empaneled a joint committee of the Senate and Assembly to inquire into the Commissioners' conduct because, according to the law that created the committee, some people “may have sustained damage” by the Commissioners' work.Footnote ⁷² However, neither the joint committee of inquiry nor the objections to leases slowed the Commissioners down.Footnote ⁷³ The only effect of such complaints was that some Commissioners began to demand indemnifications from lessees, and then continued renting property as eagerly as they had done before objections arose.Footnote ⁷⁴

Whereas detailed evidence comes primarily from Dutchess County, the records suggest a much broader system of property leasing. For example, Commissioners from Albany and Westchester Counties leased farms and collected rent, or they tried to collect it while new tenants often fell into arrears.Footnote ⁷⁵ These records suggest a network of revolutionary patronage that distributed farm leases to allies. Commissioners in war-torn regions such as Westchester could hold out the possibility of a subsistence to friends of the cause. In a suffering society, that chance for material security offered a strong reason for New Yorkers to accept the regime's authority. Doing so might just save their lives.

This largesse—from confiscated goods, to direct payments, to farm leases—contributed to the general welfare at a time of scarcity. As the honor of government depended upon providing basic necessities, the regime would appear illegitimate, and would appear to have shirked an indispensable duty, if it allowed New Yorkers to suffer while the British rampaged through their territory. Moreover, insurgents—through sales, payments, and leases—coaxed their reluctant neighbors to support the cause, or at least to acquiesce in the regime's authority. Hesitant New Yorkers gained a material stake in the survival of the state. When the state succeeded, they succeeded, or at least they survived, which gave them good reason to accept the authority of revolutionary legal institutions. Property confiscation thus strengthened a new legal order because it provided material relief to a desperate society.

The bonds that connected New Yorkers to revolutionary legal institutions ran deeper than immediate relief. By redistributing property, insurgents also made countless New Yorkers complicit in the Revolution.Footnote ⁷⁶ Many people participated in despoiling subjects of the Crown when they assisted a Commissioner, or bought goods from him, or signed one of his leases. If any guilt ever attached to the uprising, if Americans were ever held to account for raising arms against the King, many New Yorkers would be culpable. The regime's largesse, therefore, represented more than a winter's subsistence. It linked New Yorkers to the revolutionary project by giving them a vested interest in maintaining insurgent government. If the regime developed stable, independent institutions, many New Yorkers' positions would be secure and they could keep all of the goods that they had acquired. But if the regime failed, and New Yorkers returned to British rule, they would have to explain how they ended up with all of their neighbors' property. They would also, at the very least, have to return all of those cows and clothes, or compensate the former owners. Expropriation, therefore, not only allowed the regime to support New Yorkers; it gave New Yorkers good reason to support the regime.

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In addition to providing a subsistence, property confiscation offered a weapon of revenge, one that spoke to New Yorkers' deep desire to intimidate and punish enemies. New Yorkers embraced the regime's legal institutions because doing so helped them seek retribution against Britain and its supporters. For a society under military occupation, revenge became an urgent priority, as every day seemed to bring more news of British and Loyalist attacks. In November 1777, a newspaper described how “a number of Tory Villians [sic]” had robbed Jacob Baldwin and his family, who lived outside Fishkill. The armed thieves surrounded the house before stealing food and clothing, “leaving the family almost naked.” Footnote ⁷⁷ Such crimes had become common. Westchester County was particularly vulnerable because “Tory thieves,” as a newspaper described them, could strike homes then carry the goods and livestock across the lines into British-occupied New York City.Footnote ⁷⁸

Other New Yorkers suffered physical abuse and homelessness at the hands of the British. In October and November 1777, the British sailed up the Hudson River and, as a newspaper reported, they “wickedly destroyed” buildings along the way. Those buildings included the stores of John Holt, printer to the state. The British also burned Holt's “dwelling house, barn, &c. not even leaving a hovel to shelter” his family.Footnote ⁷⁹ During the same raid, the British landed at Kingston, where the legislature had convened for the first time under the new Constitution. The British chased away the legislature only a few weeks after it had begun the session, and then burned the town to the ground. A witness described how the fire spread quickly and how, before long, the town's “elegant and convenient dwellings” had been “reduced to a heap of rubbish.” The attack dispersed more desperate refugees. Whole families were now “obliged to take up with such huts as they can find to defend them against the cold blasts of approaching winter.”Footnote ⁸⁰

Not every assault was as stunning as an obliterated town. The train of daily abuses also included less spectacular events. In December 1777, Loudon's paper reported that the “enemy have lately burned three or four houses below Tarry-Town [in Westchester], abusing and wounding some of the inhabitants, particularly an aged person, who suffered much from their inhuman hands. They carried off three or four prisoners.”Footnote ⁸¹ Facing robberies, assaults, and burned towns, New Yorkers came to believe that they were all suffering at the hands of a cruel enemy.

Moreover, the experience of occupation convinced them that their injuries cried out for vengeance. In May 1777, the local committee in Amenia, in Dutchess County, wrote to the Convention to warn that a terrified population would soon take revenge against Britain's supporters. People in the area were in such “fear of being murdered, burnt or destroyed in the night, that they seem determined to rise in a body, and kill all the Tories they can find in the county.” The committee asked for some way to “settle the minds of the people in quiet” and to avoid a gruesome bloodletting.Footnote ⁸² New Yorkers could not bear the British raids and Loyalist plotting for much longer, before they took revenge on those they blamed for their suffering.

General Horatio Gates, a Continental army officer, understood how such grievances turned revenge into an urgent priority of the War. On October 20, only a few days after accepting Burgoyne's formal surrender at Saratoga, Gates sent a letter to Major General John Vaughan, the British officer commanding the raiding party that sailed up the Hudson. Gates berated Vaughan for reducing “the fine village of Kingston to Ashes, and most of the wretched inhabitants to ruin.” Gates explained that if Vaughan had hoped to frighten New Yorkers into abandoning the cause, such wanton destruction would have the exact opposite effect. Vaughan's “unexempled [sic] cruelty” would establish independence “upon the broad basis of the general resentment of the people.” Gates recognized that this resentment would soon resolve itself into retribution. And when that moment arrived, Gates warned Vaughan that “it may not be in the power of any thing [sic] human to save you from the just revenge of an injured people.”Footnote ⁸³ Seeing an occupying army burn towns and turn families out of their homes, New Yorkers came to share a desire to strike back at those responsible for such calamities. No constitutional theory could provide that wellspring of common experience. No abstraction such as separation of powers resonated as deeply as the desire to seek revenge against Britain and its supporters. The war made vengeance, along with material relief, central to revolutionary authority.

The thirst for revenge proved so strong that New Yorkers sought reprisals on their own. In May 1777, a militia officer in New York reported to the Convention what happened when his men heard about the British attack on Danbury. The men “were so exasperated” by stories of how the British treated “the friends to liberty,” that the soldiers were disobeying orders. Instead of marching south as commanded, they were marching east to Danbury to “take vengeance on the disaffected persons in that quarter.”Footnote ⁸⁴ Mobs even attacked supporters of independence who seemed too soft on Loyalists. In 1778, a mob decided that the local committee in Cambridge, New York was not doing enough against enemy sympathizers. As a witness reported, the group waited until the committee was meeting, and then dragged them from the building. The group forced the committee members to run a gauntlet, whipping them for not punishing Tories severely enough.Footnote ⁸⁵ Rioters of earlier years had not gone away, and this core of insurgents punished anyone who they thought lacked a strong commitment to the cause.

Revolutionary officials struggled to build legal institutions that would satisfy such violent partisans. On the one hand, if the regime went too far toward bloody retribution, it could provoke a counter-revolution. The Convention regularly received reports of British machinations and bands of Loyalists roaming the woods, shooting out the windows of militia officers and stealing their weapons.Footnote ⁸⁶ Coming down too hard on disaffected people could embolden such attacks and lead to a response organized under the protection of British arms. On the other hand, however, if officials did not go far enough, they could find themselves being whipped through a gauntlet. Those officials had to make the state aggressive enough to convince violent revolutionaries to stop taking matters into their own hands, but not so aggressive that they drove people to the British. The Commissioners of Sequestration accomplished that delicate task by redistributing property. Expropriation allowed the state to co-opt the hard core of insurgents, making popular violence unnecessary. Insurgents never anticipated that confiscation would have this effect. No stated policy assigned that responsibility to the Commissioners, but expropriation announced that New Yorkers did not have to launch partisan assaults. They could trust the regime to do it for them.

The Commissioners communicated their aggressive partisanship by starving the families of those who fled to the British. In August 1777, American Major General Israel Putnam wrote from Peekskill to the Council of Safety. He complained that the Commissioners for Westchester County had been selling all of the goods belonging to those who fled to the British. They had left abandoned families destitute, including some with many children to care for. Putnam objected to “starving the innocent families” who had begun to ask him for relief. The Council in turn asked the Commissioners “whether you have not in some instances rather drawn the cord too strait [sic]” by leaving families without even a little pasture or hay.Footnote ⁸⁷

The Commissioners, for their part, remained unapologetic. They responded that they had not heard of any such instances, but that if any had occurred, “we are justifiable, as we conceive, having acted in strict conformity to the resolutions” requiring them to leave the families with 3 months' worth of provisions, clothes, and furniture. As more than 3 months had passed since the March resolutions, any families “in a suffering condition” must have run out of the allotted provisions and thus cannot “be charged to [the Commissioners'] account.”Footnote ⁸⁸ Commissioners' rigorous enforcement, with all its ugly consequences, made the regime acceptable to those willing to commit violence on behalf of independence. Each family that sought Putnam's charity testified to the insurgents' hard line on Tories. Violent New Yorkers—such as those who marched to Danbury to seek revenge—could look to the Commissioners' poor treatment of families and see that they had an ally in the regime's legal institutions.

Every confiscation, even those that did not leave families destitute, signaled the regime's willingness to confront Loyalists. Property seizure was a highly visible act, one performed in front of an entire community. When the Commissioners expropriated a known Loyalist, his aggressive neighbors, those who might have taken the law into their own hands, could see the regime take revenge on their behalf. An inventory of goods confiscated from Bartholomew Crannel suggests how this process occurred. Crannel had been a prominent lawyer in Poughkeepsie who had opposed every form of colonial mobilization as far back as the elections to the first Continental Congress in 1774.Footnote ⁸⁹ After Crannel fled to New York City, the Commissioners seized his personal property in May 1777. They carefully went through his house, recording all of his goods exactly where he had left them. Crannel's front room, where he entertained guests, showed the prosperity he once enjoyed. There Commissioners found a China case, a couple of “large looking Glasses,” and a set of mahogany furniture, complete with a dozen chairs.

Upstairs, away from where guests would have been, the Commissioners found items for more mundane use. They found a writing desk, a small table, and “4 Common Chairs.” Below stairs they discovered an enormous variety of goods, from wooden pails to desks, from fishing nets to forks. Outside the house, Commissioners found items that ranged from the commonplace to the extravagant. They noted livestock such as calves, oxen, hogs, colts, and horned cattle; they found barrels of flour; they even found a chaise and “1 pleasure Slay.” Soon after compiling the inventory and taking possession of all the goods, the Commissioners held an auction.Footnote ⁹⁰ The image of Commissioners going up and down the stairs, passing around the grounds, and methodically looking into every room, reminds us that such actions were public displays of the new legal order. Anyone who might take the law into his own hands, or who might doubt the fledgling state's willingness to confront its enemies, could look out his window and see Commissioners picking apart the estate of a known Loyalist, or, perhaps, see hired helpers leading a train of confiscated goods to auction. In either case, people who wanted retribution against Loyalists did not need to pursue it on their own. They could see that the Commissioners provided it through the legal institutions of the revolutionary regime.

New Yorkers also embraced the regime's legal institutions because doing so allowed them to take revenge against personal enemies. The case of John Kane suggests how this process occurred. Kane was a tenant of Beverly Robinson's, one of New York's largest landowners whose holdings were primarily in southern Dutchess County. As far back as the mid-1760s, Kane had enjoyed a privileged status as a loan agent to other tenants on behalf of Robinson and lenders from New York City. Such a close association made Kane extraordinarily unpopular when Robinson and other landlords in the area tried to exert greater control over their property. The landlords' ejectment suits and efforts to modify the terms of leases caused a tenant uprising in 1766 that British regulars had to put down.Footnote ⁹¹

Kane remained in the area over the following decade. When war broke out, he found himself harassed by various revolutionary committees. In December 1776, a neighbor denounced him and Kane admitted to the committee that he and the accuser “have been upon very bad Terms for a long Time.”Footnote ⁹² The committee interrogated and jailed Kane before the Commissioners of Sequestration confiscated his personal property.Footnote ⁹³ Later in the War, the legislature attainted and banished him.Footnote ⁹⁴ Kane might have held some British sympathies, but his close association with an overbearing landlord and his job as an agent of creditors made him a likely target for his neighbors' revenge. In this way, expropriation allowed New Yorkers to conscript the Commissioners, and later the legislature, to one side of a feud. People could denounce an unpopular neighbor, one that they had despised for years, and the Commissioners would help them settle old scores. New Yorkers, therefore, assisted the Commissioners, because by doing so they could seek personal revenge against a longstanding enemy.

At a time when New Yorkers were looking to settle scores, property confiscation resonated with that desire for retribution, but dispossession did not affect only the individual victim of this revenge. Publicly dispossessing a known Loyalist, especially a powerful one, intimidated hesitant New Yorkers, those whom supporters of independence called “equivocal characters.” The confiscation and sale of Sir John Johnson's property suggests how these equivocal characters saw expropriation as a warning such that they would accept the regime's legal authority rather than face the consequences of opposition. Sir John was from the second generation of a family that had dominated life in the Mohawk River valley, a region that in 1772 was separated from Albany County and organized as Tryon County. Sir John's father, Sir William Johnson, had been the superintendent of Indian affairs and had established the family seat at Johnson Hall, around which he built Johnstown. He had received grants to tens of thousands of acres, many of which he settled with Catholics whom he encouraged to emigrate from the Scottish Highlands. When he died in 1774, his son Sir John inherited the manor house while his nephew and son-in-law, Col. Guy Johnson, inherited his position as superintendent.Footnote ⁹⁵ The dynasty appeared secure for the next generation.

As the colonial dispute escalated, both Sir John and Colonel Johnson used their influence to prevent people in Tryon County from forming committees or implementing the Convention's resolutions. Therefore, the local committee confronted deeply entrenched authority when it tried to hold meetings. In May 1775, it described to the Albany committee that “this County has for a series of Years been Ruled by one family, the different Branches of which are still strenious [sic] in dissuading people” from supporting the Continental Congress. Only in the past week, Sir John and Colonel Johnson had interrupted a committee meeting when they “appeared with all their Dependents armed to oppose the people from considering of their Grievances.” They mistreated the committee members, knocking some down and threatening others. Sir John had even fortified Johnson Hall with cannons.Footnote ⁹⁶ Then, the following month, the arrest of a committee member nearly caused a pitched battle at Johnson Hall between hundreds of committee members and Sir John's loyal supporters.Footnote ⁹⁷ The Albany committee interceded to prevent fighting, and Sir John fled to Canada.Footnote ⁹⁸

After withstanding the Johnson family's abuse, insurgents were eager to dispossess the local grandee and his supporters. Commissioners began collecting enemy property in the area as fast as they could. They held the first sales on May 1, 1777, only 7 weeks after the Convention empowered them. The sales went on for months, many taking place at Johnson Hall, and by December, the Commissioners had sold more than 3000 items. Sir John's personal property, including his harpsichord, went to the highest bidder.Footnote ⁹⁹ A short time earlier, loyal tenants and other dependents had rallied to Johnson Hall—the seat of the family's dynastic power—to protect their landlord. But now, Commissioners and their hired assistants ransacked the house and redistributed the family's wealth. It was a striking and highly public reversal that warned equivocal characters about the danger of opposition. Such a scene, repeated over months of auctions, intimidated hesitant New Yorkers by putting the cost of dissent on full display. These events made it clear that if the regime's legal institutions could dispossess someone as exalted as Sir John, then they could do it to anyone.

Enoch Crosby—one of the most active spies in the service of New York's independent government—described how such confiscations intimidated people who might have supported Britain.Footnote ¹⁰⁰ Crosby took assumed names and spent weeks hiding in the woods with suspected Loyalists. As an agent provocateur, he encouraged the suspects to form a regiment or to escape behind British lines. If they agreed to join his plot, then he secretly alerted the local militia, which arrested the Loyalists. But the militia was not the only weapon at his disposal. Dispossession also proved to be a powerful way of coercing allegiance from hesitant New Yorkers. In his pension application after the war, he recalled “that the confiscation of the personal property of the Tories & the leasing of their lands had a great tendency to discourage them from joining the British Army.”Footnote ¹⁰¹ Fear of dispossession intimidated many New Yorkers into accepting the regime. Expropriation frightened these equivocal characters away from the British and convinced them to acquiesce in the regime's authority.

For a hesitant New Yorker, the confiscations offered a bleak choice. When he looked to the center of town, or to a neighbor's house, he saw what had happened to those who rejected the revolutionary legal order. He could see the Commissioners marching around a neighbor's grounds making lists, a group of paid helpers carting everything to auction, and other neighbors picking out a spoon or a blanket to buy. With this example before him, he could keep quiet and receive some material relief from the auctions. Or he could reject the uprising and risk the sort of dispossession he saw all around him. The vision could be a frightening one, a warning to those who would oppose the Revolution. Confiscations, repeated thousands of times, signaled to equivocal New Yorkers that they could accept the confiscated property and the regime that delivered it into their hands. Otherwise, Commissioners might soon be at their door. And as Crosby made clear, confiscation succeeded in forcing many New Yorkers to choose acquiescence over opposition.

At the same time, expropriation co-opted aggressive New Yorkers, those who wanted to take their revenge in blood. For such people, the auctions—rather than being a warning or a source of unease—signaled the state's willingness to pursue a partisan campaign against Loyalists. This partisanship convinced violent New Yorkers to stop taking the law into their own hands. Instead of seeking their own retribution, such partisans could denounce a neighbor, then simply watch a Commissioner and his payroll of helpers swarm all over the property, fixing it so that the family would never return to a looted farm. Commissioners thus announced to aggressive New Yorkers that the law worked for them.

Although the process was often ugly and vindictive, property redistribution helped insurgents consolidate the authority of a revolutionary regime. New Yorkers needed material relief, and they were seething with resentment at the occupying army. In that context, redistribution drew people toward the new order with the promise of relief, and linked their subsistence to the regime's authority. As they came forward to buy a neighbor's property or to help a Commissioner, they became active participants in a revolutionary cause. They joined other New Yorkers, the aggressive partisans seeking revenge, and together they helped revolutionary Commissioners enforce the law. The process resembled the stripping of the monasteries in Reformation England. In that instance, many who did not share the Reformation's broad theological goals still helped to plunder monastic property. As they did so, they joined their more active, evangelical neighbors in a common enterprise that advanced radical change.Footnote ¹⁰²

When New Yorkers dispossessed Loyalists, they, too, came to the assistance of a revolutionary regime and helped it to enforce a sweeping confiscation policy. Property redistribution therefore had a twofold effect. On the one hand, it offered a suffering, vengeful people powerful reasons to support the regime's legal institutions. By helping those institutions, New Yorkers gained a subsistence and a chance to strike back at those they blamed for their hardship. On the other hand, confiscation punished political enemies by cutting them off from their communities and giving them little reason to return to a ransacked farm where refugees had been resettled.Footnote ¹⁰³ Expropriation drew in supporters on one side, who then impoverished and intimidated political opponents on the other, thus allowing insurgents to consolidate the authority of a revolutionary legal order.

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As the War dragged on, property redistribution continued building powerful bonds between New Yorkers and their new state. A second round of confiscation began in October 1779 when the legislature passed a forfeiture act. The law attainted fifty-nine people for “having adhered to the enemies of the state” and created a court procedure through which New Yorkers went on to convict hundreds of additional defendants of the same crime. Their punishment was forfeiture of all property, real and personal, whether held as a present or a future interest.Footnote ¹⁰⁴ The real estate, like the moveable property sold by the Commissioners, was then auctioned off.Footnote ¹⁰⁵ Historians who have examined property forfeiture in New York have looked almost exclusively at the confiscation of real property.Footnote ¹⁰⁶ The few scholars who have considered the redistribution of moveable property have done so in a partial way, sometimes purposefully excluding much of what the Commissioners did.Footnote ¹⁰⁷ Such studies lose sight of the broader context in which New Yorkers redistributed moveable goods for 3 years before the first forfeited acre went up for sale. This article has tried to expand the story beyond that limited focus. By analyzing the confiscation of personal property, we can begin to understand how the later expropriation of land was part of a redistribution policy stretching back to the earliest years of the War.

Moreover, in focusing on New York's 1779 forfeiture law, some historians have asked a single question: did the chance to buy confiscated land turn tenants into strong supporters of the revolutionary state? As far back as the 1740s, tenants in the Hudson River Valley had been trying unsuccessfully to secure stable land tenure. Their efforts had brought them into conflict with landlords who tried to control their property by ejecting tenants and modifying the terms of leases. These disputes sometimes exploded into riots and armed uprisings.Footnote ¹⁰⁸ Historians have analyzed confiscation through the lens of this ongoing struggle for land. They have argued that, by offering the chance to gain a freehold, redistribution alone cemented tenants' allegiance to the new order. Tenants came forward and embraced the revolutionary state because, through expropriation, it provided the stable land tenure that they had been seeking for decades.Footnote ¹⁰⁹

The chance to buy their farms linked purchasers to the new legal order. But focusing exclusively on land sales, as scholars have done, offers an incomplete view of the forfeiture act and its impact on the young state's legal system. As odd as it may sound, the actual transfer of real property represented only a minor part of the law's implementation. The vast majority of those prosecuted under New York's forfeiture law had no land to forfeit: 984 people were either attainted in the statute, or later indicted and convicted in court for adhering to the enemies of the state. Of those defendants, however, only 235 had any land confiscated and sold.Footnote ¹¹⁰ This discrepancy reveals that New Yorkers prosecuted approximately four times as many landless defendants as they did those who had any land to lose.Footnote ¹¹¹ In other words, for every one enemy of the state who owned land—for each Loyalist landlord such as Beverly Robinson or Sir John Johnson—there were four other enemies who were prosecuted even though they were not possessed of any real property. Historians have been examining the one defendant and ignoring the other four. Thus, the forfeiture law touched the lives of many more people than historians have realized. This article has suggested ways of examining the law's broad impact. By analyzing the actual enforcement on the ground—rather than just the minority of cases involving land sales—we can start to see the statute's full effects on New York's revolutionary legal system.

Revolutionaries all over the world have struggled with the challenge of reconstituting law during their movements. This article has explored the initial phase of that dynamic process in a large and populous state. However, the story is not only an American one. It is a general comparative issue of legal history that transcends America's experience. The local manuscript sources consulted here, records such as auction lists and account books, are fragments of a much broader process in which insurgents have struggled to transform disorder into a new, stable legal order. It is a problem that revolutionary movements continue to confront today. Thinking about America's legal history in these terms opens up new lines of inquiry into the broad historical problem of how radicals turn chaotic, violent uprisings into working legal systems. New Yorkers, in their own revolutionary experience, overcame that challenge through large-scale property redistribution.

Analyzing New York's confiscation also suggests productive comparative possibilities. Every American state seized property from political enemies and sold it to allies. So too did radicals in England during the Reformation, Parliamentarians during the English Civil Wars, revolutionaries in France during the French Revolution, and guerillas in El Salvador and Cuba. One historian has suggested that after the English Civil Wars, sales of Royalist land linked purchasers to the Commonwealth.Footnote ¹¹² But the legal processes at work in revolutionary America remain largely unexplored, and we are just beginning to consider why confiscation has appeared in many different revolutionary contexts.