USA > South Carolina > The history of South Carolina in the Revolution, 1780-1783 > Part 47
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1 Statutes at Large, vol. IV, 513, 515.
2 Ibid., 515.
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tary genius which had conceived the bold policy of leaving Cornwallis in North Carolina and moving upon Lord Raw- don in this State. It was to his patient constancy to this plan that was attributed the redemption of the State. He was held up by his friends and admirers in extravagant lan- guage as second only to Washington ; in almost blasphe- mous language he was styled "deputy Saviour."1 And all this, Sumter and Marion, sitting as senators, were too high- minded to challenge, when by doing so they would bring in their own services in competition with his. Georgia and North Carolina, not to be outdone in expressions of grati- tude, voted to Greene, also, the former 5000 guineas, and the latter 2400 acres of land. But the general's enjoyment of these extraordinary marks of favor was not without alloy. The effusions of congratulations were closely followed by bitter complaints at the neglect and unjustice that others than the generals had sustained. Nor was it long after these grants were made before reports were in circulation as injurious as those which had once before assailed his moral character whilst in the quartermaster-general's department. It was said that he had intrigued with the legislature to ob- tain these grants, and that he had combined with a mercan- tile house, under the firm name of Hunter, Banks & Co., to participate in a contract for the supply of the troops and even to practise upon the necessities of his companions in arms.2 It is very probable that his advice that the legisla- ture should assemble at some place under the immediate pro- tection of the army gave color, if not rise, to the suspicion of intrigue with the body as to the grant ; but, as it has been well observed, the character of the Assembly was in itself a sufficient answer to such a charge. The shadow of the
1 " The Battle of Eutaw" (General J. Watts de Peyster), The United Service Magazine, September, 1881.
2 Johnson's Life of Greene, vol. II, 285, 286.
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latter accusation hung over him for the remainder of his life, though it is not probable that he was guilty of more than indiscretion in regard to that transaction.
The legislature next proceeded to the most serious part of its business : the confiscation of the property of avowed Tories, and the amercement of those who had withdrawn themselves from the contest and accepted protection from his Majesty's forces. The justification of these measures was set out in a carefully prepared statement, by way of recital, to the first of these acts. It is here given in full as the pre- sentation of the views of those who enacted the law - a law which was received with only less indignation by many of the truest Whigs than by the Tories who suffered under it: - -
" Whereas, the thirteen British colonies (now the United States of America) were by an act of the Parliament of Great Britain, passed in or about the month of December, in the year of our Lord 1775, declared to be in rebellion, and out of the protection of the British Crown; and by the said act not only the property of the colonists was declared subject to seizure and condemnation, but divers seizures and destruc- tion of their property having been made after the 19th day of April 1775, and before the passing of the said act, such seizure and destruc- tion were, by the said act, declared to be lawful; and whereas, the good people of these States, having not only suffered great losses and dam- ages by captures of their property on the sea, by the subjects of his Britannic Majesty, but by their seizing and carrying off much property taken on the land; in consequence of such proceedings of the British Crown, and those acting under its authority, the honorable Congress of the United States, after due and mature consideration, authorized the seizing and condemnation of all property found on the sea, and belong- ing to the subjects of Great Britain, and recommended to the several States in which such subjects had property, to confiscate the same for public use; all political connexion between Great Britain and the United States having been dissolved by the separation of these States from that kingdom and then declaring themselves free and independent of her; in pursuance of which recommendation most (if not all) have disposed of such property for the public use; and whereas, notwith standing the State has forborne even to sequester the profits arising
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from the estates of British subjects, the enemy, in violation of the most solemn capitulations and public engagements, by which the property of individuals was secured to them, seized upon, sequestered, and applied to their own use, not only in several instances the profits of the estates, but in other instances the estates themselves, of the good citizens of the State, and have committed the most wanton and wil- ful waste of property, both real and personal, to a very considerable amount; and whereas, from a proclamation of Sir Henry Clinton, declaring that if any person should appear in arms in order to permit the establishment of his Britannic Majesty's government in this country, such person should be treated with the utmost severity, and their estates be immediately seized in order to be confiscated; and whereas from a letter of Lord Rawdon to Lieutenant-Colonel Rugely declar- ing that every militiaman who did not use his utmost endeavors to apprehend deserters should be punished in such manner as his lordship should think adequate to such offence, by whipping, imprisonment, or being sent to serve his Britannic Majesty in the West Indies ; from the Earl Cornwallis's letter to Lieutenant-Colonel Cruger, bearing date the 18th of August, 1780, declaring that he had given orders that all the inhabitants who had submitted, and who had taken part with their countrymen in the first action near Camden (although such submis- sion was an act of force or necessity) should be punished with the greatest rigor, that they should be imprisoned, and their whole prop- erty taken from them or destroyed; and that he had ordered in the most positive manner, that every militiaman who had borne arms on the part of his Britannic Majesty, and who had afterward joined their fellow citizens (although he had been compelled to take up arms against them), should be immediately hanged; and ordering Lieu- tenant-Colonel Cruger to obey these directions in the district which he commanded, in the strictest manner ; and from the general tenor of the enemy's conduct, in their wilful and wanton waste and destruction of property as aforesaid, committing to a cruel imprisonment, and even hanging, and otherwise putting to death in cold blood, and an igno- minious manner, many good citizens who had surrendered as prisoners of war; it is evident that it was the fixed determination of the enemy, notwithstanding their profession to the contrary, to treat this State as a conquered country ; and that the inhabitants were to expect the ut- most severities, and to hold their lives, liberties, and properties, solely at the will of his Britannic Majesty's officers ; and it is therefore incon- sistent with public justice and policy, to afford protection any longer
VOL. IV. - 2 ₽
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to the property of British subjects, and just and reasonable to apply the same toward alleviating and lessening the burdens and expenses of the war, which must otherwise fall very heavy on the distressed inhabit- ants of the State."
Having thus stated the causes and justification of the act, the persons to be affected by its provisions were divided into six classes, upon lists as follows : -
List No. 1 contained the names (1) of those known to be subjects of his Britannic Majesty, and (2) of those who went over to and took up arms with the enemy, and failed to come in and surrender themselves as required by procla- mation of the governor in pursuance of an ordinance of the General Assembly of the 20th of February, 1779.
List No. 2 was of those who, upon the surrender of Charlestown, had congratulated Sir Henry Clinton and Admiral Arbuthnot on its reduction.
List No. 3 was of those who had voluntarily embodied and served in the Royal militia.
List No. 4 was of those who had congratulated the Earl Cornwallis on his victory at Camden.
List No. 5 was of those who then held, or had held, commissions under his Britannic Majesty, and were then with the enemy.
List No. 6 was of those who had not only voluntarily avowed their allegiance to his Britannic Majesty, but by the general tenor of their conduct had manifested their attach- ment to the British government, and proved themselves inveterate enemies of the State.
The property, real and personal, of the persons men- tioned in the six lists was vested in commissioners appointed under the act, who were directed to sell and dispose of the same at auction on five years' credit. The act went on also to provide that, although the lives as well as the for- tunes of the persons mentioned in the lists numbered 2, 3,
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4, and 5 were by law forfeited, yet, in order to avoid, if possible, sanguinary measures, and to extend to such per- sons such mercy as might be consistent with justice to the public, instead of inflicting capital punishment, they were declared to be forever banished from the State upon the penalty of death without benefit of clergy should they return. The commissioners were, however, allowed on the credit of the estates directed to be sold, to make such provision for the temporary support of such of the families of the persons mentioned on the lists numbered 2, 3, 4, 5, and 6 as should appear to the commissioners necessary. A provision in the act directed that, before the commissioners sold any of the slaves belonging to these persons, a sufficient number should be set aside for the payment of the bounties promised to the recruits for the Continental troops, and 440 male slaves belonging to such persons, which should be fit and proper for the use of the Continental army as pioneers, wagon drivers, artificers, and officers' servants were to be employed in those several occupations so long as they were wanted for the public service. They were likewise to set aside such horses, cattle, wagons, and provisions as should be needed for the use of the army. In order, however, to raise a sum of money in specie necessary for the service of the State, the governor was authorized to sell for ready money not exceeding 150 slaves, the slaves to be sold in families.1
Such was the famous act. It was followed by another en- titled, " An act for amercing certain persons named therein."2 This act thus declared in preamble its purpose : -
" Whereas, many persons, inhabitants of, and owing allegiance to the State (some bearing high and important trusts and commissions), have withdrawn themselves from the defence thereof, accepted pro- tection from the officers commanding his Britannic Majesty's forces,
1 Statutes at Large, vol. IV, 516, 522. 2 Ibid., 523.
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now carrying on a cruel and destructive war within this State, and are either within the lines of the enemy, or have omitted to surrender and en- roll themselves and perform the duties to their country pointed out and required by the proclamation of his Excellency, the Governor, dated the twenty-seventh day of September last past, in utter neglect and con- tempt of the executive authority of the said State, and to the evil exam- ple of society. And whereas, there are others, who, forgetting all the social ties of kindred, the feeling of humanity, and regardless of the duty and allegiance they had most solemnly sworn to their country, did actually subscribe and pay by themselves or agents, considerable sums of money towards mounting and equipping a troop or troops of cavalry, or other military force for the service of his Britannic Majesty, to act against their fellow citizens, and the independence and freedom of this State; and whereas, it is but just and reasonable that the estates of such persons, both real and personal, should be amerced, and that a due discrimination should be made."
The commissioners appointed for carrying into execution the Confiscation Act were required within four months to make an inventory of the real and personal estates of the persons named in the list annexed to the act, and to amerce them twelve per cent on the actual value for the use of the State.
The preambles of these acts are given in full, as they de- clare the reasons for their passage, assigned by those who enacted them. These reasons amounted to nothing more than the right and justice of retaliation, which, as against willing and avowed British subjects and adherents, was certainly justified as a measure of war. But herein lay the difficulty of the matter, i.e., to determine definitely and justly who were really willing subjects and adherents of the Royal cause. Still more so in regard to those who had merely taken protection. Both measures were earnestly opposed by a minority led by the heroic Christopher Gads- den, who, notwithstanding his long imprisonment in the castle of St. Augustine, and the immense loss of his prop- erty, opposed the confiscation of the estates even of the
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adherents of the British government, and zealously con- tended that sound policy required to forget and forgive.1 The Confiscation Bill, he said, " was like an auto da fé, a sort of proceeding used in Portugal against heretics, where they are dressed in frocks painted over with figures of fiends and devils, to excite a horror against them in the multitude." 2
It was urged that the act was one of condemnation without hearing or trial. No crime was alleged, no article of charge given in against any of the persons named, no accusation entered on the journals of either House. At the time the Assembly was taking his property from the citizen, the unhappy man was in Charlestown, struggling under the pressure of necessity in getting the common necessaries of life, and suffering under British tyranny from which the State had not been able to shield him. A report or idle story, an old grudge, revenge, or malice, supplied the place of legal accusation, of evidence, of judge and jury. History had branded with infamy the instances in which the Parliament of Great Britain had condemned subjects without trial or examination. But condemnation without a hearing was not the only objection; the bill pro- posed an ex post facto law. Taking protection from a conqueror who was in possession of the country, or signing a congratulation was no offence against any law of the State. Allegiance and protection were reciprocal. When the governor had sought his safety in flight, and all other civil officers were either fugitives or prisoners, when there was no other organized armed force in the State but that of the enemy, the citizen was under necessity of accepting protection from the conqueror, nor could all be blamed who, under the pressure of their situation, signed papers of congratulation or even contributed money to the enemy -
1 Ramsay's Hist. of So. Ca., vol. II, 464. 2 " Cassius," p. 18.
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such addresses and contributions were not always as volun- tary as they appeared to be.
Still stronger was the objection to the Amercement Act. It was charged that a great majority of the Assembly it- self were men who had at some time taken protection, but who, from circumstances, had been enabled to accept of the terms of Governor Rutledge's proclamation. Were others, who had not been so fortunately circumstanced, now to be punished by amercement? In all countries overrun by an invading and victorious army, it was said, nothing was more common than to raise what is called contributions for the support of it, and in cities and civil- ized places, to make the matter easy to the people, or from an affectation of politeness which soldiers of fortune some- times put on, with the bayonet at your breast, the thing is generally done by subscription; and we afford the first example of such contribution being charged as a crime. Those in Charlestown who subscribed for the British cav- alry were some of them volunteers for raising a force against us; but this was not the case with all of them, it was believed. The citizen was under the yoke of a tyrant who had a thousand ways of doing him mischief. To such people the subscribing to British cavalry was another name for contribution. It was done, perhaps, under the highest necessity and compulsion. To make that a crime, there- fore, by a retrospective law which was none before, and condemn to forfeiture of their property, was ex post facto arbitrary and unconstitutional.1
Such considerations might possibly have prevailed had the reasons put forth in the preambles to the acts been the real motives for their enactment. But there can be little doubt that revenue and not retaliation was the real induce ment of the measures. General Marion writes to Colone
1 " Cassius," p. 44.
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Peter Horry on the 10th of February: "Two regiments are to be raised as our Continental quota, giving each man a negro per year, which is to be taken from the confiscated estates. A number of large estates are down on the list and others are amerced, which will give in at least a mill- ion sterling as a fund." 1 Marion himself was known to have been opposed during the whole war to all acts of cruelty to and vengeance upon the Tories, and constantly to have borne in mind and urged upon his followers that, however the war might end, Whigs and Tories must be fellow-countrymen, and that it was policy as well as duty to forbear from all unnecessary acts of severity which might in the future impede a reconciliation of fellow-citi- zens and brethren. Indeed, he is said, but on doubtful authority, to have given as a toast at a large party at Gov- ernor Mathews's table just after its passage, " Here is damnation to the confiscation act."2 Johnson states that the most efficacious reason for adopting the measure was that the State was wholly destitute of funds, and the Whig population so stripped and impoverished as to put it out of the power of government to raise any immediate resources, either by loan or taxation ; and that the estates of the Loyalists were therefore seized upon as a means of establishing a capital to build a present credit upon.3
It is very doubtful, however, whether the result as a finan- cial measure justified an act otherwise so impolitic. It was charged, as must have been expected, that great injustice ind partiality were indulged in the details of the act. That he members of this popular Assembly, acting in different haracters of legislators and judges, in proceeding to confis- ation and banishment, put in enemies and kept out friends,
1 James's Life of Marion, 174.
2 Weems's Life of Marion, 291.
& Johnson's Life of Greene, vol. II, 283.
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and gave loose rein to malice, avarice, and revenge. Indeed, it was alleged that in many instances this was carried to extraordinary lengths. An instance was cited of a well- known gentleman, member of the Assembly itself, who would have been banished and his estate forfeited had not some friend secreted the slip of paper on which his name was inserted. 1
In the lists appended to these acts as published in the Statutes2 there appear the names of 239 persons whose estates were confiscated and of 47 whose estates were amerced. But upon an examination of these lists, and com- paring them with the lists of the 210 who did sign the address of congratulation to the British commanders, " the addressors," as they were called, all of whose estates were confiscated by the act, it is manifest the published lists as appended to the statute are not correct. List No. 2, purporting to contain the names of "the addressors," con- tains but 43 names out of the 210. This discrepancy may, it is true, be accounted for, in a measure, by the fact that not all of the addressors were possessed of estates to be confiscated. But that this consideration does not entirely account for the difference appears from the fact that in the list appended to the act of 1784 for restoring to the per- sons therein mentioned their estates,3 the names of severa " addressors " appear whose names are not appended to the Confiscation Act itself. So, too, the same observation applied to other lists ; names appear upon the restoration lists which do not appear upon the original confiscation lists.
The lists appended to the acts are remarkable for th names that do not appear upon them. This is par sa ticularly the case with List No. 1 to the Confiscation ActN
1 " Cassius," p. 39.
2 Statutes at Large, vol. VI, 629-635.
8 Statutes at Large, vol. IV, 624 ; vol. VI, 634.
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which purports to contain the names of the known sub- jects of his Britannic Majesty. Conspicuous from its absence is that of William Bull, whose unshaken fidelity to his king was so open and avowed. Still honored and loved, however, by all, it was perhaps impolitic, if not impossible, to have placed his name upon the list, especially after his generous and spirited appeal for the life of Hayne. But there were others, the absence of which is not easily explained. We do not find the name of Thomas Skottowe,1 the member of Council who had refused to appear before the General Committee in 1775, and had been consequently banished, but had returned during the British rule ; nor of James Simpson, the attorney-general, who had been banished with Skottowe and likewise re- ts turned, and had occupied the position of intendant of police under the British military government; nor of Colonel Innis, who had raised a regiment which he had conspicuously commanded against the Americans ; nor hat of Colonel Probart Howarth, governor of Fort Johnson, be nor of George Roupell, the postmaster, - the last three of tel whom had, like Skottowe and Simpson, been banished the in 1775. 2
per- But even still more remarkable is the fact that, erthough the legislature was composed largely of Low- th Country men, out of the 239 persons whose estates plie were confiscated, but 10 were of the Up-Country. These chic vere Andrew and John Cuningham and Colonel Clary f Ninety Six, Captain Anderson of Thicketty Creek, Villiam Guest of Tyger River, William Stevens of aluda, George Grierson of Waxhaws, Julin George of Ac New Acquisition (York), and William Valentine of Cam-
1 That Samuel Skottowe had adhered to the American cause and had hdured confinement on prison ship may possibly have saved the estate his relative.
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den. In the district of Ninety Six and in that between the Saluda and Broad, the Tories far outnumbered the Whigs, and many had borne militia commissions in the British service. How was it that the fine estate of Colonel Fletchall at Fair Forest, with its famous mill, was not confiscated, while both those of Elias Ball (of Wam- baw) and Elias Ball (of Comingtee) were taken ? Why is it that with Colonel Clary we do not find the names of Lieutenant-Colonel Philips, Lieutenant-Colonel W. T. Turner, and Majors Daniel Plummer, Zachariah Gibbs, and John Hamilton, who with him bore British militia commis- sions. Surely some of these must have possessed estates equal in value to those of William Cameron the cooper, James Duncan the blacksmith, John Fisher the cabinet- maker, and John Ward the tailor, whose estates in Charlestown were confiscated.1
The list appended to the Amercement Act strongly corroborates the charge of partiality in its application. On September 19, 1780, the British authorities published a list of 168 persons who had petitioned for protection, and who were notified to appear before the intendant of police to subscribe the declaration of allegiance, and to receive their certificates.2 A similar notice appears in The Royal Gazette of the 11th of July, 1781, D to which is appended the names of 213 more. There were thus 381 persons publicly announced as having accepted protection. The Amercement Act, which by its terms was to apply not only to those who had ac
1 It is a remarkable fact that as the triumphant Whigs, upon the re covery of the government of the State in 1782, confiscating the estates o the Loyalists, restricted their doing so to those of the Loyalists on th coast, so upon their overthrow of the Confederacy in 1865 the Federa sury follo
government likewise restricted its practical confiscation to those Confederates in the same region.
2 So. Ca. and Am. Gen. Gazette.
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