The Declaration of Independence was followed by the Test Laws which required all colonists to swear allegiance to the state in which they lived. A record was kept of those who took the oath and they were issued a certificate for safety from arrest. Failure to take the oath meant possible imprisonment, confiscation of property, banishment and even death.
The Test oath was to enforce a declaration of principle from those who were indifferent to or were secret enemies of the Revolution, state legislators enacted “test” laws. (sic) The oath demanded by these laws varied in different colonies that adopted them, but in general they prescribed loyalty to the patriot cause, disloyalty to the British government, and promise not to aid and abet the enemy. In the Test Acts passed before the Declaration of Independence “the oath of abjuration and allegiance was omitted.”(7)
The Tory who refused to take the oath of allegiance became an outlaw. He did not even have the right of a foreigner in the courts of law. If his neighbours owned him money, he had no legal redress. No relative or friend could leave an orphan child to his guardianship. He could not be the administrator or executor of a person’s estate. If he was a lawyer, doctor or someone with some other profession, he was often denied the right to practice his profession.
Among the Whigs there was opposition to the Test Laws. Peter Van Schaak, a moderate Whig from New York State disapproved of the Test Laws and left the Revolutionary Party. “Had you,” he wrote, “at the beginning of the war, permitted every one differing in sentiment from you, to take the other side, or at least to have moved out of the State, with their property…it would have been a conduct magnanimous and just. But, now, after restraining those persons from removing; punishing them, if in the attempt they were apprehended; selling their estates if they escaped; compelling them to the duties of subjects under heavy penalties; deriving aid from them in the prosecution of the war…now to compel them to take an oath is an act of severity.”(8)
The early Test Laws passed by the revolutionary governments in 1776- 1777, requiring a repudiation of loyalty to George III were followed by more repressive measures. Nine states passed acts exiling prominent Tories, five states defranchised all Tories, and in most of the states Loyalists were expelled from all offices, barred from the professions, and forced to pay double or treble taxes.(9)
On 27 November 1777 Congress recommended to the states that they appropriate the property of residents who had forfeited “the right to protection” of the revolutionary government. The treasury of the Continental Congress was empty so the confiscation of properties owned by Tories provided an excellent means for filling the congressional coffers. In a resolution passed by the Continental Congress, it was recommended that the states invest the proceeds of the land sales in continental loan certificates. As Loyalists began leaving the Thirteen Colonies during the Revolutionary War, large sums of money from the sales of confiscated Tory properties began to find their way into state treasuries.
The Revolutionary War ended officially in 1783 with the signing of the Treaty of Paris. Provisions were made in the treaty for the Loyalists, requiring that they be treated “not only with justice and equity, but with that spirit of reconciliation which on the return of the blessings of peace, should universally prevail.”(10)
The action of the state legislatures did not follow the provisions in the treaty. Article 5 of the treaty stated that “Congress shall earnestly recommend to the state legislatures that they provide for the restitution of all estates, rights and properties which have been confiscated and which belonged to real British subjects. Also the Loyalists were to be permitted to go to any part in the thirteen colonies and remain there for twelve months, unmolested in their endeavours to obtain such restitution.”(11)
Article 6 of the treaty stated that “there should be no future confiscation or collection of damages and those confined should be released and not prosecuted.”(12)
The seizure of Tory properties continued after the Revolutionary War and those acts of confiscation were not punished by American courts. The estate of Oliver de Lancey, Andrew Lambert, John Leonard, Philip Kearney, Cortlandt Skinner and Benjamin Thompson of New Jersey were sold to the highest bidder after 1783. The estates of John Graham and Sir James Wright of Georgia were sold after the signing of the peace treaty. Very few loyalist properties were restored and legal impediments were placed before Loyalists who wanted to collect debts owed to them, despite the fact that Article 4 of the treaty stated that British merchants were to meet no lawful obstacles in collecting their debts. There were also those ready to purchase vast holdings at very low prices. Some of them stirred up mob action to drive out the owners whose land the wished to obtain.