“Considered broadly,” says Douglas Bradburn, “the problem of ‘citizenship’ remains one of the most compelling contexts to attempt to understand the process, limits, and meaning of the American Revolution.” This post is a brief exercise in the problem of American citizenship in the immediate post-revolutionary era (and a note towards an article-length project on international law in the new republic). It begins with the dilemma of dealing with the fallout of a civil war like the War of Independence, and it follows the reception of a slightly unexpected figure in the history of American political thought: Thomas Hobbes.
Before the British had even left Charleston, South Carolina’s assembly—held at Jacksonborough in spring, 1782—passed acts of confiscation and amercement against inhabitants who had taken the “protection” of the king during the war: effectively, anyone who had lived within the lines of British occupation. But most of these families could hardly be classified as loyalists, or even (now the war was over) ex-loyalists. The political question, then, was: who can decide who shall be counted as citizens of the republic and on what basis? By stripping them of the franchise, Governor Rutledge had begun to give an answer, and by confiscating their property (without, of course, their representative consent) the assembly had followed his lead. To some South Carolinians, these acts were precedents that threatened basic rights; they were also unjust according to international law.
“[T]he obligation of subjects to the State is understood to last so long, and no longer than the power lasts by which it is able to protect them,” Hobbes had written. Accordingly, South Carolina had no right to expect loyalty from those whom it could not protect from the British, and thus no right to punish them now. “On the restoration of the republic and law from British thraldom,” wrote Aedenus Burke, “the protection-men who had been our citizens before, were as fully entitled to all the rights and freedom of citizenship, as those who were detained prisoners of war, or took refuge to the northward.” They should be deprived of neither their votes nor their property, he argued. Moreover, restoring them to the full status of citizens accorded with both principle and policy. To exclude them would only create a faction permanently opposed to the government, and ripe for future manipulation by the British.
In his Phocion letters of early 1784, Alexander Hamilton took the same position against the New York radicals attacking the “Tories” left in the city after the British evacuation. To “disfranchise or punish whole classes of citizens by general descriptions, without trial,” he wrote, contradicted “a dictate of natural justice, and a fundamental principle of law and liberty.” To declare some people traitors because they had lived within British lines “would be to measure innocence and guilt by latitude and longitude.” The Treaty of Paris stipulated that no further punishment of loyalists should occur. “To say that this exemption from positive injury, does not imply a right to live among us as citizens, is a pitiful sophistry.” Although he didn’t quote Hobbes directly, I think Hamilton is making a Hobbesian point here. “The meaning of the word liberty has been contested,” he wrote.
Its true sense must be, the enjoyment of the common privileges of subjects under the same government. There is no middle line of just construction between this sense and a mere exemption from personal imprisonment! If the last were adopted, the stipulation would become nugatory; and, by depriving those who are the subjects of it, of the protection of government, it would amount to a virtual confiscation and banishment; for they could not have the benefit of the laws against those who should be aggressors.
While Hobbes himself had written that liberty “signifieth properly the absence of . . . external impediments of motion . . . [i.e.] walls and chains,” the real object of his theory was the “artificial man,” the commonwealth, and the “artificial chains,” the laws, which define the “liberty of subjects.” Such laws are made “by mutual covenants” for mutual protection, and “at the entrance into conditions of peace, no man [may] require to reserve to himself any right which he is not content should be reserved to every one of the rest.” As Hamilton put it, if the Tories were required to give up all rights except “exemption from personal imprisonment,” then they would have no rights at all, for they would have no protection against the others. To say “they may receive protection without being admitted to a full enjoyment of the privileges of citizens” simply raises the question, “where shall the line be drawn? Not a capricious and arbitrary line, but one warranted by rational and legal construction?”
In the highly unstable world of post-revolutionary legal discourse, Burke, Hamilton, and others sought “by rational and legal construction” to define the edges of citizenship. In doing so, they rejected the implicit sovereignty of post-revolutionary legislatures like the one at Jacksonborough. They asserted a more fundamental set of principles, one that could be known in part through the strictures of international law and the law of nature, and understood through the writings of authors like Hobbes. “The rights . . . of a republican government are to be modified and regulated by the principles of such a government,” Hamilton wrote. The battle to define those principles could not take place on the assembly floor alone; it took place in courtrooms and taverns, private parlours and the public press, and it was structured by a set of discourses much older than the new American republic. The nature of citizenship helped determine power relations within society and the state. But at the same time, the post-revolutionary struggle for power helped determine the nature of American citizenship.
1. Douglas Bradburn, “The Problem of Citizenship in the American Revolution,” History Compass 8, no. 9 (2010): 1103.
2. Qtd. in Aedanus Burke, “An Address to the Freemen of South Carolina” (Philadelphia: Bell, 1783), 7. Evans no. 17861.
3. Burke, “An Address to the Freemen,” 9.
4. Alexander Hamilton, “A Letter from Phocion to the Considerate Citizens of New York,” January 1-27, 1784, in The Papers of Alexander Hamilton, 26 vols., ed. Harold C. Syrett (New York: Columbia University Press, 1961-1979) 3:485.
5. Hamilton, “Second Letter from Phocion,” April, 1784, in Papers of Alexander Hamilton, 3:535.
6. Hamilton, “Letter from Phocion,” 3:487.
7. Thomas Hobbes, Leviathan (London, 1660 ), chapters XV and XXI.
Very excellent post, Tom.
I wonder if these issues have a strong geographical and regional flavor.
In places like South (and North) Carolina where the fighting was particularly brutal and awful there would be a broad political constituency for confiscation. I’ve done a bit of primary source research on the fighting in the Carolinas and it absolutely it was closest in character to a “modern” civil war of all of the theaters of the War for Independence.
Someone like Hamilton, who directly saw none of the fighting south of Virginia, would perhaps then have an understanding of liberty more sympathetic to Tory rights.
Just a thought!
Thanks Roy. Confiscation was an issue in all the states, but you’re right to point out that the fighting in the lower south was by far the most destructive and also two-sided. I think the main outcome of that is a real difficulty in working out who exactly should count as a loyalist: the lines of control were far too unstable to have a clear geographical division of partisans within the state. In New York by contrast, there were no loyalists left north of the British lines by the end of the war. But that still didn’t mean everyone south of those lines was a loyalist.
As for the passions of revenge and sympathy, in fact New York had its fair share of virulent anti-loyalists in the wake of evacuation. I particularly enjoy the patriot writer who warned Tories in the city: “‘Remorse, despair and shame will crowd upon your imagination,” come the British evacuation. “Be assured that the irresistible vengeance of a grateful people will speedily demand your blood or your banishment from this land of liberty.” Hamilton wrote the Phocion letters precisely in response to what he saw as this kind of attitude. I argue in my thesis that his overriding concern, and Aedanus Burke’s too, wasn’t Tory rights so much as property rights as such.
Tom, I think you’re right on the money with a broader concern among political actors about property rights. My own research has hammered home how in flux property was in the 1780s and 1790s. (I focus in my research on the ways of religious organizations could and could not hold property)
I look forward to you expanding on these ideas in an article!
This is really interesting. In a chapter in Beyond the American Revolution, Ed Countryman argued that the Revolution produced a popular, “undifferentiated” or holistic notion of liberty, despite the elite’s best efforts at circumscription. On the other hand, Michal Jan Rozbicki has argued that liberty in practice (i.e., as opposed to its “ideal models”) post-1776 was not essentially different than what it was during the late colonial period, i.e., it was still “relational” in that it was defined by the elite’s use of cultural devices to retain and grow their power over society-at-large by the apportioning of “liberty,” or class-based privileges. If I’m reading you right, tying the former back to Hobbes seemingly combines the two interpretations in a way that could effectively deny both by acknowledging that, especially in terms of citizenship, political culture was a two-way street intimately connected with political practice.
Sorry for the late reply here, but thanks Michael – those thoughts will be extremely useful when I come to put together the article proper.
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Completely agree that Hobbes is profoundly relevant to US legal and political thinking, although the point here is at least as much about sovereignty as it is about citizenship. Hamilton’s rational legal construction does some work on Hobbes’ thinking, which like the legislature in this case, and like the constitution of the British Empire, is concerned less with consent or political subjectivity than it is with the juridical space in which you happen to find yourself.
I enjoyed Tom’s post and Roy, Michael and Mathew’s replies. Without a doubt, we are profoundly indebted to political theorist like Hobbes. Did political expediency trump political philosophy? Is there a more fundamental issue here?
We are told that the American Revolutionary War was fought as a protest against “taxation without representation.” In our Declaration of Independence, the 20th indictment against King George tells us something else. It reads in part, “For abolishing the free system of English laws in a neighboring province [Canada], …” I agree with Charles Metzger (The Quebec Act: A Primary Cause of the American Revolution, 1936). Ben Franklin promoted the American Revolution because London would not let him establish a government on the Ohio River.
As Tom’s post, and the accompanying replies indicate, the Colonies, from north to south treated the loyalist differently. Nathaniel Bouton, editor of Documents and Records Relating to the State of New‑Hampshire: During the Period of the American Revolution, from 1776 to 1783, (Volume 8, 1874) indicated that the cash-strapped Colonies treated confiscated loyalist property as an ATM machine. Need some flints for the muskets, sell that loyalist farm. Need some gun powder, sell those loyalist cows. This sad state of affairs was to be corrected as part of Treaty of Paris 1783, Article 5, negotiated by John Jay and others. It did not help our moral stand in the world when the then Supreme Court Chief Justice John Jay delivered an opinion in 1796 that we did not have to pay the patriots (Ware v. Hylton, 3 U.S. Reports (3Dallas), page 199.)
So, what is the message? Under political expediency, the citizen is abandoned.