"ONE PERSON IN LAW" - THE LEGAL STATUS OF LOYALIST WOMEN DURING THE BURGOYNE CAMPAIGN

Prior to the American Revolution, most women were bound by the legal and moral codes of their respective communities. Life was not easy for women. From the perspective of society, women were assumed to be helpless because they were like children who could not provide the basic necessities for themselves, but had to rely on men for food, shelter, and clothing. But they were also helpless, it was thought, because they were inferior. They could not take care of themselves because they were less rational, capable, and competent than men. Not only were women treated as helpless inferiors, they were also expected to speak of themselves in these terms.1 Women in many of the colonies could not attend public schools, were often pregnant on their wedding days and received little protection from domestic violence.2 Women were often heavily dependent upon the companionship of their sisters and other female relatives.  Siblings often spent countless hours spinning, preparing food, making soap and working in the field. Females also assisted each other in the birthing and raising of children.3

Often the major decision in a woman’s life was the choice of a mate.  Although 18th century women had some say in the selection of a spouse, parents still played a significant role in the decision and their consent was required.4 Colonial era women were expected to obey their husbands, rear the children, cook and prepare meals, make and launder clothes and undertake minor household repairs.5  A married woman was seen as subordinate to her husband.  Basic to the marriage contract was the notion that the man had the power to make the important decisions for the family unit, but he also had the responsibility to ensure its well- being by providing the essentials - food, clothing, and housing.6 Colonial era women were expected to obey their husbands, rear the children, cook and prepare meals, make and launder clothes and undertake minor household repairs.7 Under the eyes of the law, a married woman could not vote, collect wages, make contracts, testify in court, serve as a juror, buy or sell property nor execute a will on her own.  As eighteenth century legal scholar Sir William Blackstone surmised: "By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord. . .[Though] our law in general considers man and wife as one person, yet there are some instances in which she is . . . considered; as inferior to him, and acting by his compulsion. And therefore all deeds executed, and acts done, by her . . . are void, or at least voidable; except it be a fine, or the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary. She cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is supposed to be under his coercion. And in some felonies, and other inferior crimes, committed by her, though constraint of her husband, the law excuses her: but this extends not to treason or murder.8

Historical evidence suggests married colonial women, appeared to accept their subordinate position within the family. Rather than complaining or contemplating the unfairness of their situation, married women knew that their role was to accept their lot in life and do their duty. As loyalist Dothe Stone recalled “I was obliged and did affect cheerfulness in my behavior. . . I answered with a smile when my heart was ready to break. . . [I] must submit when it comes to open things.”9

However, not all women were subject to the strict rigors of society. An unmarried woman was considered a feme sole.  A feme sole could sign contracts, own a business, control her own wages, buy and/or sell property, and distribute personal property and chattel in her will. A feme sole could also sue or be sued in her own name in a court of law. Some feme sole loyalist women were able to establish employment as midwives, newspaper owners, successful seamstresses, tavern keepers, and shopkeepers. Such positions enabled women to work within the accepted sphere of gendered society (and/or sometimes in conjunction with family members, husbands, or business partners) and earn incomes that placed them in the middling ranks. For example, a Mrs. Cumming of Charlestown, South Carolina was a successful loyalist midwife who petitioned the British government for financial assistance following the loss of her business.10 A Mrs. Griffiths, a Connecticut milliner, supported herself and her son prior to the war.11 Unfortunately, the status of feme sole afforded women the most freedom but was publicly and socially discouraged, since women were viewed as "unproductive" if they were not wedded and having babies.12

One limited way women established their rights during marriage and controlled their own businesses was to become feme sole traders. Most often, married women needed to obtain their husband's permission to do this. This status meant that married women could conduct business and were responsible for their own actions. If the women were sued, it would not affect their husbands' estates. Married women could even devise the property acquired through their own endeavors. Deserted women and sailors' wives could petition their colonial legislatures to acquire such status. Although not stated, it is easy to see that the legislatures granting such status acted in an effort to keep women and their dependent children off poor relief. Thus it was motivated by economic, rather than liberal, concerns. War would cause many women to support themselves because their husbands had died or were crippled as a result of their service. During most wars, women remained at home to run farms, plantations, and their families’ businesses until the men returned from battle.

Women in the eighteenth century also acted independently as deputy husbands, a term coined by Laurel Thatcher Ulrich. As a deputy husband, the wife could take over her husband’s job or business in his absence. This usually occurred in family businesses such as stores, taverns, mills, and the like. Women were familiar with the business and kept it running smoothly while their husbands were incapacitated or away. This role was common and women coped adequately with their new positions. The role of deputy husband allowed married women to purchase supplies, pay bills, bank, and perform all other aspects of running their businesses. During times of war, women ran their plantations, businesses, farms, families, and managed the servants, while their husbands served in the military. Such was the case during the American Revolution and women, whether Tory or Whig, did whatever was necessary to keep the home front running.

Many colonial women, whether Loyalist or Patriot, were forced during the Revolution to act in ways inconsistent with their subordinate status within patriarchal households and to take their first tentative steps into the traditionally male-dominated worlds of politics and war fare.  Loyalist women were active participants in the Revolution. They took their first steps into the political realm by petitioning and writing pamphlets. In one such piece of literature, A Dialogue Between a Southern Delegate and His Spouse, a loyalist woman berated her husband, a delegate to the First Continental Congress, and warned of the dire con sequences of the Congress's actions:

To your mighty Congress, your members were sent To lay our complaints before Parliament, Usurpation reared its head from that fatal Hour You resolved, you enacted like a Sovereign Power.

Your non-imports, and Exports are full fraught with Ruin, Of thousands and thousands the utter undoing,

If Philadelphia or New York proposed some wise Plan From that moment on you branded the man ...

Instead of imploring their Justice or Pity, You treat Parliament like a Pack of Banditti.

Instead of Addresses fram'd on Truth or on Reason, You breathe nothing but insult, rebellion and Treason. In all the Records of the most slavish Nation,

You'll not find an instance of such usurpation, If spirits infernal for dire vengeance design'd,

Had been named Delegates to afflict humankind, And in Grand Continental Congress had resolved, Let the bonds of social bliss be henceforth dissolved. Oh! My Country! Remember that a woman unknown Cry'd aloud like Cassandra in Oracular Tone, Repent! Or you are forever, forever undone.13

Loyalist women even played a military role in the Revolution. Ann Novil, a Pennsylvania loyalist, acted as a guide during the 1777 Burgoyne expedition from Canada. Another woman, Frances Child, helped British and loyalist prisoners being held in southern New York escape, while Hannah Tomlinson “aided and assisted upwards of 100 Prisoners of War in making their escape into the British lines.”14 Most loyalist women, however, stayed within their communities behind enemy lines, where they were a valuable military asset of the British and a thorn in the side of the Patriots. Women often made better spies than men since their actions were less carefully scrutinized. Because they did not have to serve in the militia or sign oaths, women found it easier to escape being branded as dissidents.

As loyalist men fled to the safety of British lines, there was a theoretical belief held by men regarding the treatment of Tory women and children as innocent bystanders. As Captain Alexander McDonald opined “surely the people [the Patriots] has not got so barberously mad as to Mollest or hurt a poor innocent woman and still more Innocent poor Children.”15 From the male loyalist perspective, their wives were mere appendages with no independent wills or political roles of their own. Likewise, many male loyalists assumed, under the theories of feme sole trader and deputy husbands, that if their spouses were left behind, personal and real property would be carefully protected from seizure or destruction.

Unfortunately, both views were rejected by the enemy. Patriot committees and colonial governments concluded that unless there was evidence to the contrary, the families of fleeing male loyalists shared in the guilt. From the patriot perspective, women could not act independently from the men in their lives.  The political decisions of the men also incriminated the women. By joining the enemy and participating in the often vicious raids on frontier communities, the men had tainted not only themselves but also their families. The Patriots felt justified in striking back and punishing those raiding their frontiers and participating in treason. The men, however, were in Canada, beyond the Patriots' reach. Loyalist women left behind were seen as vipers living in their midst.  Thus, it was the women and their families who bore the brunt of the Patriots' rage.

Women who had either participated in the war themselves or were married to men who had were subjected to various forms of punishment, the most common and devastating being the confiscation of their property. Looting and destruct of loyalist property were also conventional. Likewise, many women also faced imprisonment and violence at the hand of local mobs.

Loyalist Sarah Mcginnis of New York enjoyed a close relationship with neighboring Mohawks. At the outbreak of the war she was offered twelve shillings York currency per day and a guard of fifteen men if she would try to influence the Mohawk on their behalf. Instead, she provided intelligence to British authorities and assisted loyalist refugees with their flight north. In retaliation, local patriot officials arrested her son in law and plundered her property. Sarah, her daughter, and her granddaughter watched as the Patriots sold all of their possessions, “except what would scantily support them in victuals and clothes,” at public auction. After this, the women were imprisoned in a local fort and so badly treated that Sarah's granddaughter later died. Sarah and her daughter "escaped at night with only what they could carry on their backs.” Sarah was forced to leave behind a son “who was out of his senses and bound in chains ... and who some time afterward was burnt alive.”16

In the case of the loyalist Empy family, Philip, husband and father of eleven children,  was subjected to “many insults and abuses from rebels.” When Philip and his three sons escaped from prison, the local Patriots turned their eyes to his wife and seven other children. Mrs Empty and her children were imprisoned and all of their real and personal property was confiscated. Mrs Empy and her family were eventually released. But when she returned to her home, she was “beat and abused” by “4 men” who left her on the road. Although she was rescued by friends and taken to Schenectady, she later died.17

Elizabeth Cary Wilstee, a resident of the New Hamphshire grants whose family had been victimized by the Green Mountain boys in the 1760s, watched helplessly as a Patriot band ransacked her home in 1776. In the middle of winter, the “outlaws” broke into her home and ordered her and her children to leave for her father's place. Although it was snowy and cold, she had no choice. “Looking back while on her way,” she saw the “outlaws moving her furniture and provisions from the house and loading them into a wagon.” Next she witnessed them “open her feather beds and shake the feathers from the ticks out of the windows and put the ticks and bed clothes into the wagon.” Finally, she watched them “pry the logs of the sides of the house out at the corners until the roof fell in.” Having finished with the Wiltsee home, the band moved on to the homes of other tenants in the neighborhood.18

Shortly after his escape, Daniel McAlpin’s property was seized and his wife and family were arrested.  Mary McAlpin described her family’s treatment at the hands of the rebels in vivid language. “From the day her husband left to the day she was forced from her home the Captain's house was never without parties of the Rebels present. They lived at their discretion and sometimes in very large numbers. They destroyed what they could not consume.  Shortly after the capture of the fleeing loyalists a group of armed Rebels with blackened faces broke into the McAlpin's dwelling house. They threatened Mary and her children with violence and menace of instant death. They confined them to the kitchen while they stripped every valuable from the home. A few days after this, by an order of the Albany Committee, a detachment of Rebel Forces came and seized upon the remainder of McAlpin's estate both real and personal.”19 Mary McAlpin and her children were taken to an unheated hut located in Stillwater and locked inside “without fire, table, chairs or any other convenience.”20

Hoping that the hardship would eventually break Mrs. McAlpin and induce her to beg her husband to honorably surrender, the rebels kept Mary and her children in captivity for several weeks. Mary McAlpin refused to comply and instead responded her husband “had already established his honour by a faithful service to his King and country.”21 Enraged, rebels seized Mary and her oldest daughter and “carted” both of them through Albany. According to the Reverend Munro, “Mrs. McAlpin was brought down to Albany in a very scandalous manner so much that the Americans themselves cried out about it.”22 A second account stated “when Mrs. McAlpin was brought from the hut to Albany as a prisoner with her daughter . . . they neither of them had a rag of cloaths to shift themselves.”23

As violence, imprisonment and looting continued to mount, many loyalist women recognized their situation was becoming desperate. In a letter to her husband John, Mary Munro described just how dangerous her situation was.  “For heavens sake, my dear Mr. Munro, send me some relief by the first safe hand. Is there no possibility of your sending for us? If there is no method fallen upon we shall perish, for you can have no idea of our sufferings here; Let me once more intreat you to try every method to save your family; my heart is so full it is ready to break; adieu my Dearest John, may God Almighty bless pre serve and protect you, that we may live to see each other is the constant prayer of your affectionate tho' afflicted wife ... P.S. The Childer's kind love to you.”24

With the threat of financial and physical ruin, many loyalist women petitioned local patriot authorities regarding their dire situation.25 Ultimately, many loyalist women concluded they and their families would be safer by withdrawing to British held territory north in Canada or south in New York City. In a second letter, Mary confirmed this conclusion when she declared “My dear John I hope when you receive these few lines they may find you in good health. Your Dear Children are all well. As for myself, I am in a poor state of health and very much distresst. I must leave my house in a very short time and God knows where I shall get a place to put my head in, for my own relations are my greatest enemies, the mills they have had a long time in their possession - likewise all their tenants' houses and lands. They have distresst me beyond expression. I have scarcely a mouthful of bread for myself or children.”26

Despite popular misconception, loyalist women and their families generally did not gather their belongings and flee into the night.  Instead, many appeared before local Committees of Safety and other similar organizations and requested permission to leave the community to join their husbands. At first, many committees were reluctant to release loyalist families as they served a useful purpose as hostages. From the patriot perspective, the continued presence of loyalist families under their careful guard could deter future attacks, stem the flow of potential young male recruits into Canada and encourage the release of American prisoners held by British authorities.27 However, following Burgoyne’s invasion of 1777, many local committees recognized that hostages would not prevent British raids and agreed to release women and their families.

Officials carefully scrutinized petitions of loyalist women and set forth the terms of their departure. Often the decision to allow women to leave was prompted by concern about the financial cost involved in permitting them to stay. As the Albany County Commissioners for Detecting and Defeating Conspiracies declared in 1778, “it having appeared to us that those Women are become chargeable to the Districts in which they severally reside and that they together with their Families are subsisted at public Expence.”28 Thus, patriot officials did not want communities to take on the burden of caring for indigent loyalist families and were frequently quite willing to grant permission to such families to leave.

Likewise, as the war progressed, many states passed laws ordering the expulsion of loyalist families from their territories. As Burgoyne advanced south into New York, the Vermont Council of Safety became alarmed at the military roles loyalist women were assuming. In response, it declared “all such persons as have joined or may hereafter join the British Troops (& left or may hereafter leave) their wives and families within this State, Have their wives and families sent to General John Burgoins [sic] Head Quarters, or some other Branch of the Ministerial Army, as soon as may be.”29 The Albany County Commissioners wrote to the governor of New York in July 1780 asking that “Women whose Husbands are with the Enemy may be sent to the Enemies Lines” and again, in September 1779, requesting the removal of a Mrs Tuttle whose husband, Stephen, "has gone off to the Enemy some time ago.”30

Once it was decided that the women were to be expelled or permitted to leave, the terms for their departure were also outlined. In 1780 in New York, all women whose husbands were with the enemy were ordered to leave the colony for British bases within twenty days. Patriot committees drew up lists of the women to be removed and officials were designated to inform the women of their fate and of the consequences of ignoring the order.31 Women were also subject to severe restrictions on what they were allowed to take when they departed from their community. In Vermont, Mrs Jeremiah French was escorted to the east side of Lake Champlain following her expulsion from the state. The notice ordering her removal specified that she could take with her only “two feather beds and bed ding not exceeding Eight Sheets, six Coverlids or blankets, 5 plates, two platters, two basons, one Quart Cup, & knives & forks if she has such things, her own & her childrens Wearing apparril . . . [the rest of the] . . . moveables belonging to sd. Estate . . . [were to be sold to] Defray the charge of Transportation.”32 loyalist Alida Van Alstine was only permitted to take with her when she fled for New York City “bedding, 2 Chests, i Trunk, 2 bbls. flour, wearing apparel and some household furniture.”33

__________________

1 Janice Potter McKinnon, While the Women Only Wept, (Montreal & Kingston, 1993), p. 8.

2 “The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds; and the husband was prohibited to use any violence to his wife, "[here translated:] other than as licitly and reasonably pertains to the husband for the rule and correction of his wife." The civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemesnors, "[here translated:] with flails and cudgels to beat the wife energetically;" for others, only "[here translated:] to apply limited punishment." But, with us, in the politer reign of Charles the second, this power of correction began to be doubted: and a wife may now have security of the peace against her husband; or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour.”  Blackstone, “Commentaries . . .”

3 While the Women, at 6.

4 While the Women at 5.

5 By comparison, a female camp follower in an 18th Century British regiment was considered an integral part of the organization. Most were gainfully employed as sutlers, nurses and laundresses, received financial compensation for their contributions and often had their own lodgings.

6 While the Women at 7.

7 By comparison, a female camp follower in an 18th Century British regiment was considered an integral part of the organization. Most were gainfully employed as sutlers, nurses and laundresses, received financial compensation for their contributions and often had their own lodgings.

8 Sir William Blackstone, Commentaries on the Laws of England, Chapter XV, Book I (1765-1769).

9 Dothe Stone Diary, October 22, 1783; October 24, 1783.

10 American Loyalist Claims, reels 99-100, 130.

11  Ibid, reels 99-100, 219.

12 If a young woman did not marry, she was expected to live with her brother, or some other married male relative, and help care for his family. The male relative would assume the responsibility of caretaker and provider for the single woman.

13 A Dialogue Between a Southern Delegate and His Spouse, (New York, 1774).

14 Petition of Ann Novil; Petition of Frances Child; Petition of Hannah Tomlinson.

15 Alexander McDonald, April 14, 1776.

16  Claim of Sarah Kast McGinnis, Audit Office 12, vol. 27.

17 Philip Empy Petition, March 1, 1780.

18 While the Women at 56.

19  American Loyalist Claims, reels 43-47, 54, 51-62.

20 Ibid. On May 27, 1777 General Gates condemned the actions of local militiamen who raided the McAlpin home. However, Gates did little to prevent McAlpin’s property from being sold to support the American war effort.

21  Memoirs of William Smith, May 12, 1777.

22  Great Britain Audit Office Records, Volume 21, reel number B-1159.

23 Ibid.  Eventually, Mary and her children fled to Canada and were reunited with Daniel.

24 Mary Munro to John Munro, undated letter, HP, A 748.

25 While the Women at 75-76.

26 Mary Munro to John Munro, undated letter, HP, 21,875.

27 While the Women at 83.

28  Minutes of the Commissioners, 21 September 1778.

29 Vermont Council of Safety, 12 September 1777,

30 Minutes of the Commissioners, 1778; September 15, 1779.

31 While the Women at 86.

32 Vermont Governor and Council, 28 May 1778.

33 While the Women at 86.