Hamilton's Office
Punishing and Pardoning the Loyalists
After the war, 60,000 Loyalists fled — six times as many refugees as in the French Revolution. They were normally the most zealous: those who had taken up arms (like William Tryon, Oliver DeLancey, and Lord Dunmore) or had their property confiscated (like Frederick Philipse, Roger Morris, and Beverly Robinson). But a far larger number remained, perhaps 450,000. Their story is even less well-known. These colonials “lacked the means, the opportunity, or the will to uproot their lives and begin anew in far-flung corners of the world,” historian Brett Palfreyman writes. As the war came to an end, they resigned themselves to “a different sort of gamble,” choosing to remain in the US and submit to governments run by the “people who had been their deadly enemies for nearly a decade.” While rebels lit fires and marched in the streets to celebrate independence, Loyalists greeted the future with apprehension. They were a part of the Founding generation that never wanted to separate from Britain — a sixth of the new “American” population.
Consequently, every state had to decide what to do with this large group, from places like Massachusetts, where they numbered in the single digits, to New York, where they made up perhaps a third of the state. The first impulse was revenge. Pamphlets and broadsides swore retribution for “an injured and determined people.” One committee in upstate New York read out a typical litany of war-crimes Loyalists were supposed to have committed: farmers “murdered… defenceless in the field,” homes and crops “burnt” to the ground, innocent women and children “Tomahawked and scalped.” Vowing that “whigs and tories” would never “live peaceably in the same society,” rebels everywhere put in governments that, at first, vowed to “use all means in our power” to ensure that such “unnatural enemies” never be “permitted to return to this land” or “enjoy the rights of a citizen.”
Clockwise: Beverly Robinson, Roger Morris, Oliver DeLancey, William Bayard, Lord Dunmore, Frederick Philipse
During these early years, radicals like the Sons of Liberty also re-emerged, demanding a much larger swath of political freedoms than leaders of the Revolution had ever advocated: an end to property qualifications to voting, popular election of municipal officials, increased access to public education, and general abolition of the vestiges of feudal aristocratic privilege. While some encouraged the return of this populist energy, others sought to restrain it. Alexander Hamilton became their champion.
The disagreement reflected both old and new fault lines. Parliament suspended trade between the US and the West Indies after the war, unleashing a depression that may have outstripped even the 1930s. Seeking work, people flooded into cities like New York, which saw its population surge again, from 21,000 to 62,000 between 1785 and 1800. The downturn hit urban artisans and hinterland farmers especially hard, intensifying the political radicalism unleashed by the Revolution. In New York, mechanics emerged as highly influential, leading demands for the elimination of property requirements to vote, more active participation in government, economic regulation, and other legislation. This democratic spirit frightened old patricians, including young men like Hamilton, who rose to prominence by defending Loyalists from confiscation of property and fiercely opposing the demands of sailors and mechanics for such things as wage and price controls. Hamilton rallied elite New Yorkers on all sides of the Revolution into a coalition that soon quelled the populist revolt.
But the question of Loyalist integration went far beyond the re-shuffling of partisan lines. As historian Joseph Tiedemann observes, it was simply impossible to define legally what constituted a treasonous act, much less belief, in a rebellion, never mind one that featured so much allegiance-switching, trading with the enemy, and forced opinion as the Revolution. If states merely punished every suspect without discrimination, tens or hundreds of thousands of innocents would suffer alongside genuine “traitors.” If they punished some but not others, who would draw the line and how?
Hamilton laid out this problem in Phocion’s Letters, two short pamphlets addressed to the “Considerate Citizens of New-York” in 1784, arguing that it not only legally dubious, but logistically impossible. Could the state really hold trials for so many people, all these years after the supposed crimes had taken place, and divine the facts, much less guilt or innocence, in each case? Hamilton made soaring, logical, persuasive arguments about liberty, due process, and the meaning of the Revolution, insisting the decision on this matter would determine the character of the new republic. Ultimately, his arguments carried the day. Legislatures began to repeal the laws punishing and disenfranchising Loyalists. New York was again the first. Nowhere was the Loyalist problem greater or the laws harsher — the Forfeiture, Citation, and Trespass Acts, confiscating property, denying credit, and barring certain economic and political rights.
Alexander Hamilton, Esquire
The budding young Wall St. lawyer made a national reputation for himself, and found a very lucrative niche, making defense of wealthy Loyalists a major part of his practice and his role in the legislature. His argument in Rutgers case also set a precedent for judicial supremacy (“review”) the first Chief Justice of the Supreme Court would establish in Marbury v. Madison.
From the start, political and military leaders had tried to segregate Whigs and Tories. But the borders were far less porous than in the South. Why had so many crossed the roads and waters leading to Patriot towns in Connecticut or New Jersey, during the war? It was hard to say, exactly. But Loyalists and rebels had been in constant contact throughout, doing business and visiting friends or relatives, even as personal violence and theft continued on both sides. Better to mercifully pardon a few offenders than cruelly punish so many innocent.
Loyalist Founders?
In the rapidly emerging new party system, the most crafty leaders of the “Federalist” wing of Revolution leadership may also have recognized electoral opportunity. As Palfreyman observes, in states that officially disfranchised all or some of the suspected, Loyalists represented “an enormous pool of untapped voters” who might support whoever re-empowered them. It would be misleading to suggest that all, or even many, Federalists saw this potentiality. In 1783, advocating for suspected traitors was probably more of a liability. But a few no doubt sensed the benefit in courting this large, socially compatible and politically like-minded population. Robert Troup later acknowledged the role Loyalists played in Federalists’ advancement bluntly: “Soon after we gained possession of New York, we permitted the Tories to enlist under our banners; and they have since manfully fought by our side in every battle we have had.”
While a highly vocal minority continued to stoke fears of a fifth column, most Americans began to care less and less. Exclusion gave way to reconciliation, Palfreyman notes. “There was no Terror, as in France or Haiti and other nations that experienced revolution: no ongoing, systematic violence, no insurgents to root out, no permanent political segregation.” Reintegration proceeded on a fitful, uneven, halting pace that never reached a complete, unitary state. But most Loyalists enjoyed the same rights and privileges as the Rebels by the end of the 1780s. They voted in every state of the Union, serving in local, state, and national office, writing influential treatises and pamphlets, and joining nearly all the important debates that followed Independence. At least one signed the Constitution.
The Federalist Papers
During this Critical Period (1783-88), the elite also feared the nation might be quickly torn asunder, watching in dread as protests over taxes and debt, like those which had sparked the Revolution, spread across the new republic. Reintegration helped to shift the balance of power in the states between wealthy rebel patricians and the more politically radical element of the wartime coalition. But anxiety remained over the fragility of the new government and economy, ushering in the ferocious and close debates over ratification of a much stronger federal government that, among other things, would nationalize debt to establish firmer credit and stable currency.
Hamilton played an outsize roles in these debates, too — most famously, as one of two lead authors in The Federalist. Delegates from each state met in Philadelphia to revise the Articles of Confederation (or, wartime government) in 1788. But when they returned home with a proposal for an entirely new government, the spotlight quickly landed on New York. What happened there would, to a large degree, determine the future of the nation. The colony and state had well demonstrated its political division and influence, but contemporaries seemed unsure if New Yorkers would ratify the new constitution. Its decision would be crucial. New York was home to titans on both sides of the debate, including Federalists like Hamilton, who came to Philadelphia in 1788 intent on scrapping the old government, and anti-Federalists like George Clinton and Abraham Yates, who arrived unprepared for the proposal, and thus found themselves outmatched. In the city, people once again took to the streets, the press, and legislative chambers to hotly, and sometimes violently, debate the question. New York officially became the US capital earlier that year, too (after five years of informality). Just as it had been the unofficial headquarters of the colonies during the late British period, it was the geographic center of national debate. But with Independence, it was now under the influence of not just Loyalist merchants, but a wave of politicians, lawyers, printers and others who came after the war, intent on shaping the federal government.
Postcard based on mural of New York ratification in Poughkeepsie Post Office, US Postal Service, 1987. Hamilton stands in the center.
This is the seldom-remembered origin of The Federalist, a series of “op-eds” published with the intention of shifting New York’s vote in favor of the new constitution. Hamilton co-authored the 85 essays with Jay and Madison, but conceived of the project himself, which appeared in the city’s nationally influential press, which now had far more printers. The authors addressed each essay “To the People of the State of New-York,” and originally planned to sign their writings “A Citizen of N.Y.” Madison, who lived in the city then, remembered “[t]he original and immediate object of [the essays] was to promote the ratification of the new Constitution by the State of N. York where it was powerfully opposed, and where its success was deemed of critical importance.” Despite its later importance to national legal and political theory, the objectives were very local and partisan.
Federalists faced fierce opposition. Constitutional delegates like Yates, representing the Lower Hudson Valley, or Melancton Smith, a champion of Queens on Long Island, voiced unwavering contempt for a document they framed as a sinister plot of wealthy interests against the people. New York’s popular governor, George Clinton, who guided the state through the war, also opposed ratification, and rallied others when the state met in Poughkeepsie to vote on the Constitution, months after it was proposed. By then, nine states had already ratified the document. But New York’s rejection would immediately hinder the prospects of actual Union.
New York and the US Bill of Rights
The Constitution passed narrowly in mid-1788, although the last vote would not be rendered until mid-1790. Nearly everywhere, the press overwhelmingly favored ratification, as did the elite generally. While Federalists and anti-Federalists sometimes disagreed about basic principles of government, interest (class, occupation, region, state) proved more determinative in who supported the government. Most Americans probably wanted something more like the Articles of Confederation — the Constitution, after all, placed heavy constraints on local democracy, the Revolution’s cause. But Federalists altered the procedure for national ratification, and in some places the mechanics of local ratification, to improve their chances. As the historian Michael Klarman notes, the Founding was rather ordinary in terms of politics: “Both sides questioned their opponents’ motives and attacked their characters, appealed to the material interests of voters, employed dirty tricks, and made back-room deals when necessary.” If not for important strategic blunders, the Federalists probably would have lost, and the fate of the US might have been very different.
New York is a good example. The city was firmly in support: all of the state’s Federalist delegates came from what became Manhattan, Staten Island, Brooklyn, and Westchester. But when the state’s ratification convention opened in April 1788, anti-Federalists outnumbered them 46 to 19. And even in the city, debate turned violent at times. Thomas Greenleaf, the only anti-Federalist printer in New York, faced mob violence and intimidation. In Albany, partisans brawled in the streets on Independence Day. The same risk of coercion and vengeance that had shaped the Imperial Crisis lurked beneath this debate over what kind of government should rule. And the printing business was likewise essential to its outcome. Their postwar growth, long-distance network, and desire to federalize the nation set the conditions for ratification.
The constitution New York adopted before the Philadelphia Convention drafted a new federal constitution, established a bi-cameral legislature, a governor, and a supreme court, with veto power held by the judicial and executive powers. When James Madison conceived of the latter, the former was a model for him.
After intense debate, New York’s delegates did vote to ratify the Constitution, by a slim 30-27 margin — but with a significant caveat. Opponents demanded that new protections of individual rights be added immediately, and they distributed a “circular letter,” or petition, among the states to gather support. While other ratifying conventions had made suggestions for changes down the line, no state had produced a list so detailed, and no state had New York’s reach or influence. Madison, who rejected such amendments at first, conceded to get the state’s vote, and in 1791 many of those recommendations found their way into the US Bill of Rights. Thus, New York provided more than just constitutional framers and writers. Its anti-Federalists extracted concessions that shaped the protections of the federal government they opposed. As during the Imperial Crisis and the War, the city and state again played a vital role in steering the development of the new republic.
Nationalizing the Economy
Hamilton played an even larger, if less appreciated, role in his 1790 proposal to nationalize wartime debt. His success in this venture would fuse the rather disunited states into a single political economy. But they also combined the national interest with that of the old colonial elite, including, most conspicuously, the giant landlords and merchant traders of New York, whom he befriended. Perhaps no one benefitted more than speculators. Government credit allowed them to speculate on western native land, but it also saved the real estate markets in port cities like New York. Prior to the Revolution, the city’s landlords had used land as a vehicle to preserve their wealth, not to generate new income. But the war, and decline of slavery in the North, convinced many leaseholders that new forms of tenancy could become a profit-making mechanism. Increasingly, landowners demanded that tenants, particularly in the rural areas north of the city, “improve” their rentals through construction and other development projects. Whereas colonial land had been a resource, now it became a commodity.
After Independence, severe economic depression came. Most states enacted tax and debt relief. But such measures were firmly opposed by elites. In Massachusetts, where farmers and others were now paying more than they ever paid the British, popular legislation was defeated, then followed by a revolt that stopped courts from issuing foreclosures and throwing debtors into peonage — until Boston’s merchants staged a violent crackdown. Led by a veteran of Bunker Hill and other soldiers, “Shay’s Rebellion” had a profound impact on the convention to revise the Articles of Confederation. Many believed the “nation” was already on the brink of collapse and predicted civil war. These “Federalists” pushed to dramatically expand the government’s power and insulate it from popular influence, far more than most Americans anticipated or desired, producing a very close battle over the Constitution’s ratification.
A new supply of “improvable” land — Loyalist exiles, confiscation of Tory estates, death of gentry, and continuing subdivision — also invigorated Manhattan’s realty. Despite popular calls for these properties to be evenly divided among the rich and poor, city officials ensured the land would not be distributed equitably. The real estate boom unleashed developers on upper Manhattan, and kindled a new drive to remake the city’s built environment. These attitudes would ultimately spell the destruction of old New-York and its Revolutionary environment.
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On reintegration, see Brett Palfreyman, “Peace Process: The Reintegration of the. Loyalists in Post-Revolutionary America,” PhD Dissertation, State University of New York, Binghamton (2014) and “The Loyalists and the Federal Constitution The Origins of the Bill of Attainder Clause,” Journal of the Early Republic 35, no. 3 (2015): 451-73; Mark Boonshoft, “Dispossessing Loyalists and Redistributing Property in Revolutionary New York,” New York Public Library blog, September 19, 2016; Howard Pashman, “The People’s Property Law: A Step Toward Building a New Legal Order in Revolutionary New York,” Law and History Review 31, no. 3 (2013): 587-626; Oscar Zeichner, “The Loyalist Problem in New York after the Revolution,” New York History 21, No. 3 (1940): 284-302; and Peter Charles Hoffer, Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review (University Press of Kansas, 2016).
On the question of partisanship, see Donald Johnson, “Ambiguous Allegiances: Urban Loyalties During the American Revolution,” Journal of American History 104, no. 3 (2017): 610-31; Sung Bok Kim, “The Limits of Politicization in the American Revolution: The Experience of Westchester County, New York,” Journal of American History 80, no. 3 (1993): 868–89; and Judith Van Buskirk, Generous Enemies: Patriots and Loyalists in Revolutionary New York (University of Pennsylvania Press, 2002).
On ratification in New York, see relevant sections in Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon & Schuster, 2010) and Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (Oxford University Press, 2016); and Mark Boonshoft, “Doughfaces at the Founding: Federalists, Anti-Federalists, Slavery, and the Ratification of the Constitution in New York,” New York History 93, no. 3 (2012): 187–218.