Building a Revolutionary State: The Legal Transformation of New York, 1776–1783 by Howard Pashman (review)

Historians have long regarded New York as one of the more interesting laboratories of democracy during the revolutionary era. At the outset of the War for Independence, it resembled modern American society in many respects, as it was characterized by an ethnically and religiously diverse population, with a burgeoning capitalist economy. On the other hand, its political order seemed downright feudal, with a small representative assembly heavily weighted toward the interests of manorial landlords and a coterie of elite families. During the 1760s, class tensions precipitated land riots in the Hudson River valley and street protests related to the Stamp Act and quartering of British troops in New York City. After 1776, the presence of loyalists and enemy troops within the state made this social and political order even more volatile. Compounding matters, New York was different from other colonies in that its elite was not unified, and it did not have well-developed institutions of self-government that could contain and direct revolutionary ferment. Always a "factious people," New Yorkers seemed likely to abandon rather than maintain the rule of law once royal government in their colony collapsed, but somehow they did not.¹

In Building a Revolutionary State, Howard Pashman sets out to explain why the Revolutionary War did not precipitate that descent into anarchy. His answer centers on the confiscation and redistribution of loyalist property, a process that he argues helped the revolutionary government disarm its internal enemies and cement the loyalties of its potentially mutinous supporters. Pashman contends that the significance of loyalist confiscations in revolutionary New York has been overlooked by previous historians because they have generally equated property seizures with the tactics of more modern revolutionaries in places such as Russia, China, and Cuba. Indeed, in the long course of modern history, property confiscations by revolutionary governments have often perpetuated division and instability rather than serving as effective tools for legitimizing a new political order. According to Pashman, however, New York was different. Its confiscations stabilized the revolutionary government by both satisfying the people's need for vengeance against their loyalist enemies and knitting their economic security to the revolutionary cause. Of course, seizing the property of political enemies and using it to reward supporters was hardly a new idea in 1776, but Pashman sees this policy as distinct from mere spoils distribution. He argues that in this case, it gave the revolutionary state a claim to moral authority as an effective protector of the public good and dispenser of justice.

New York was not the only state to confiscate loyalist property, but such appropriations had a more significant impact there because they broke up and redistributed so many large manorial estates held by loyalists in the Hudson River valley. Although property forfeiture was an established part of English law, it rarely occurred in New York before 1776. In cases of felony convictions, courts had hesitated to impose it, and when the government acted on powers of eminent domain, it always paid for the property it seized. As New York slid into revolution, however, uncompensated confiscation quickly became a favorite tool of local patriot committees. In this respect, Pashman sees this policy not as imposed from above but as something that developed organically from "law on the ground" (7). Local patriots self-organized to do what the state's paralyzed government and courts could not: identify and punish their enemies. Their work was endorsed, though not directed, by the Committee for Detecting and Defeating Conspiracies, an arm of the Provincial Convention that was itself a rump of the former colonial assembly. Local patriots dispensed with traditional civil liberties such as search warrants and trial by jury when they imprisoned suspected loyalists and banished others. They defended the seizure of movable property on the grounds of preventing such resources from falling into enemy hands, and then they leased land owned by absent loyalists as...