Historians estimate that half a million Americans remained loyal to Britain during the revolution. Although tens of thousands fled during and after the war, far more chose to stay in the United States.1 What was to become of these people, many of whom had had their property confiscated or their rights of citizenship denied? Under the Articles of Confederation, the national government was incapable of enforcing a single policy throughout the states.
Background: Experience of loyalists during the revolution
Loyalists came from every imaginable social group and had a huge variety of reasons for opposing the revolution. Many shared the revolutionaries’ frustration with high taxes and other colonial British policies, but they saw violence as unnecessary. Some feared that the revolution would devolve into mob rule and anarchy.anarchy noun
absence of government; lawlessness2 Many two religious sects with Protestant Christian roots, both of which supported non-violenceQuakers and Mennonites opposed the war for religious reasons. Native American tribes overwhelmingly chose to side with the British in the hope that Britain would protect them from the incursion of American settlers onto their lands. In an effort to disrupt colonial society, the British Army offered freedom to slaves who fought to suppress the rebellion, and many blacks took advantage of this offer. In all, the approximately 500,000 loyalists comprised about 16% of the population.3
Once hostilities broke out in 1775, loyalists—and anyone who did not show sufficient enthusiasm for the revolution—came under attack from their communities. Most states required that their citizens take loyalty oathsloyalty oaths noun
a pledge of loyalty or allegiance to the revolutionary government. and conducted investigations into suspected loyalists. Arrest and conviction could lead to imprisonment or banishment. Some states confiscated loyalists’ property and sold it to raise money for the war effort. In addition to official persecution by the government, loyalists were subjected to mob violence such as tarring and feathering.tarring and feathering verb phrase
a form of public humiliation: hot tar is applied to the victim, and feathers are stuck to the tar.4
Approximately 40,000 loyalists fled during the war and 80-100,000 followed after, but even more stayed in the United States. Should they be permitted to return to their old communities? Reclaim their confiscated property? Become equal citizens of the United States? These questions posed a challenge for all levels of government, from the local to the federal.
The Treaty of Paris and the Loyalists
When representatives of the United States and Britain met in Paris to negotiate a peace treatyPeace treaty
An agreement between two or more governments that formally ends a war., they attempted to address the problematic situation of loyalists. Articles V and VI of the Treaty of Paris deal directly with loyalists. According to Article V, Congress would “earnestly recommend” that the state legislatures return confiscated lands and allow loyalists to return home in order to collect their debts and reclaim their property. Article VI protected loyalists from future confiscations of property or losses of liberty, and promised that all jailed loyalists would be released.
However, under the Document (ratified 1781) that established the United States as a union of sovereign states. Certain powers, such as implementing foreign policy and settling disputes between states, were given to Congress. States retained all unspecified powers. Articles of Confederation, Congress had the power to negotiate and ratify treaties, but it was left to the states to enforce the terms through legislation as necessary.5 If the states insisted on punishing loyalists, Congress would be powerless to stop them.
The States and the People React
When loyalists attempted to return home after the fighting ended, many communities responded with hostility. Several state legislatures enacted harsh laws. For instance, South Carolina enacted laws that mandated disfranchisement,disfranchisement noun
Denial of the right to vote confiscation of property, and banishment of loyalists6 In Massachusetts, public anger at the perceived leniency of the Treaty of Paris towards loyalists may have caused a backlash in the state legislature. In March of 1784, the state legislature passed a law that stripped all persons who left the state between 1774 and 1780 of their citizenship and required loyalists to obtain a license from the governor in order to reside in the state. All property belonging to the “conspirators” named in the Law forbidding 308 persons from re-entering Massachusetts, on penalty of confinement and possible death sentence (Maas, 402)1778 Banishment Act was permanently seized by the government, despite the guarantees of Article VI of the treaty.7
One particularly strong example of a state legislature defying the terms of the Treaty of Paris took place in New York, home to one of the highest concentrations of loyalists in the country.8 In 1783, the New York legislature passed the Trespass Act, which allowed rebels forced to leave British-occupied areas (such as New York City) to sue loyalists who had occupied their property in their absence. Loyalists could not sue.9 Alexander Hamilton successfully defended a loyalist who had been sued, arguing that this act violated the Treaty of Paris and was therefore void. This case, Rutgers v. Waddington (1784), established for the first time that state legislation that conflicts with a federal treaty is void.10 Hamilton presented his arguments to the court of public opinion in “A Letter from Phocion to the Considerate Citizens of New-York on the Policies of the Day.”
In April 1787, Congress sent a second message to the states urging them to repeal all laws contrary to the Treaty of Paris, but only some complied.11 Despite Hamilton’s isolated courtroom success, the federal government under the Articles of Confederation proved unable to ensure that the states treat loyalists as mandated by the Treaty of Paris.
Why was this important?
In addition to the obvious impact state policies had on individual loyalists, the US government’s failure to abide by the treaty had potential consequences for the nation as a whole. By negotiating the Treaty of Paris, the US government entered into the “society of nations” and accepted responsibilities expected of all nations.12 The diplomatic legitimacy of the US government rested, in part, on its ability to negotiate treaties that other nations could expect would be upheld. In response to this failure of the Articles of Confederation, the framers of the Constitution included Article VI, which formally recognized past and future treaties as “the supreme law of the land."13
For links to primary sources and further reading on loyalists, consult the bibliography.