Three Rivers
Hudson~Mohawk~Schoharie
History From America's Most Famous Valleys

Chapter Seven, Benton's History of Herkimer County

Chapter VII

Forfeited estates-Act of 1779-Persons Attainted under George III-Treaty of 1783-Attainder of the Johnsons and Butler justified- Rules of evidence laid down-British Parliament-Further Provisions of the Act-Royal grant-Extent of Same-Guy Johnson Tract-Herkimer Estates-Motives of the Johnsons-Sir William Johnson-Events of Revolution still Remembered-Reception of Sir John in Canada-Guy Johnson's Conduct as Indian Agent-Judicial Tribunals always open-The Fifth Article of the Treaty of 1782-The 9th Article of the Treaty of 1794-Motives of the Loyalists in Embracing the Cause of the Crown-Congress Fulfilled Treaty Stipulations-Its Messages not Well Received by the States-Present Law of Treason.


At the risk of repeating some of the facts contained in the preceding chapter, and of being considered tedious, I venture to submit some further remarks in reference to the "forfeited estates" of British subjects, confiscated during the war of the revolution. The subject is within the scope of an historical research into the annals of the county, because the title to large tracts of land within its limits has been affected by the action of the legislature of the state. Now, when more liberal sentiments seem not only to be entertained by some governments, but by enlightened individuals, in respect to the mode of conducting war, and of inflicting punishment upon individuals, for acts of hostile aggression in cases where, by the public law, no allegiance was due to the injured state, the opinion has been expressed that the confiscated estates of individuals should have been restored at the peace of 1783. This is a very grave question, and will not meet with an affirmative response from any considerable number of enlightened Americans, even at this day, and they, I am sure, are quite as liberal as any other people in the civilized world. The legislature of this state may have laid down and enforced a rigid rule, and one to which there should have been some exceptions. But the distracted state of the country, and the circumstances of the times, called for the exercise of the most stringent measures of defense and protection. Subjugation, confiscation and the halter was the punishment denounced against what was called an unnatural rebellion. "Life, liberty and the pursuit of happiness," was the prize contended for.

The act of October 22d, 1779, declared "Sir John Johnson, late of the country of Tryon, knight and baronet, Guy Johnson, Daniel Claus and John Butler, now or late of said county, esquires, and John Joost Herkemer, now or late of the said county, yeoman," to be, ipso facto, convicted and attainted of voluntarily adhering to the fleets and armies of the king of Great Britain, in the cruel and unjust war then waged by him against this state, and the other United States, with the intent of subvert the government and liberties of this state, and the other United States, and to bring the same into subjection to the crown of Great Britain. Their estates real and personal were declared forfeited to and vested in the people of this state.

When George III, on the 3d day of September, 1783, acknowledged the thirteen united states "to be free, sovereign and independent states; that he treated with them as much; and for himself, his heirs and successors, relinquished all claims to the government, propriety and territorial rights of the same, and every part thereof," no question could be raised by the British crown, nor by its subjects, in regard to any of the antecedent acts of these free, sovereign and independent states.

When we examine the traces of blood, and fire, and desolation that marked the footsteps of the two Johnsons, Claus and Butler, through this state, and especially in the Mohawk valley, from 1775 to the fall of 1779, who can justly say this act of attainder, confiscation, and banishment was wanton, cruel or oppressive towards them? Retributive justice demanded the punishment and it was inflicted.

Other persons were convicted and attainted by the same act, some of them civilians, and all the persons named in the act were perpetually banished from the state, and their return to it was denounced a felony punishable with death, without the benefit of clergy. Persons adhering to the public enemy, and guilty of treason against the state, after the 9th day of July, 1776, were subjected to indictment and trial; and it is here worthy of notice, that the legislature were so tender of the rights of those who might be complained of and brought to trial, as to declare that the several matters which, by the laws of England, were held to be evidence and overt acts of high treason, in adhering to the king's enemies, should be the rule in like cases when the parties were charged with high treason against the people of this state, making some other provisions to meet the peculiar circumstances of the times.

After exerting an act of high prerogative, which had been done by the British parliament at various periods in the history of that country, and for causes much less justifiable than those which provoked the attainder we have been considering, all proceedings against other parties chargeable with affairs of this character, against the state, were turned over to the courts, where a conviction could only be had upon an indictment and trial or outlawry.

By the attainder of Sir John Johnson it was supposed the whole of the Royal Grant, so called from the fact that the patent granted to Sir William received the sign manual of the king in person, was forfeited. That tract comprises all that part of the county lying between the East and West Canada creeks, the Mohawk river on the south, and the south line of Jerseyfield on the north, which runs from the village of Devereaux at the northeast corner of the grant, on the East Canada creek in a northwesterly direction to the West Canada creek, intersecting it north of Prospect in Oneida county, with the exception of Glen's Purchase, a few lots in Burnetsfield, and some few patents in Manheim. The towns of Norway, Russia, Newport, Fairfield, Salisbury, Manheim, Herkimer and Little Falls, contain portions of this extensive domain. The tract of 2000 acres granted to Guy Johnson in 1765, situated in the present towns of German Flats and Herkimer, was forfeited by his attainder.

The Herkimer estates forfeited lay within the present limits of German Flats and Herkimer, and are believed to embrace portions of the Palatine grants; the only case of attainder or forfeiture within the limits of the patent granted to Johan Joost Petri and others.

Sir John Johnson and the wife of Guy Johnson, were the children of Sir William, by a German woman, legitimated a short time before the baronet's death by the solemnization of marriage with the mother. Johan Joost Herkemer is the only instance of attainder and forfeiture by any of the Palatines or their descendants in the upper Mohawk valley. There may have been others who deserved it, and perhaps there was one, but his case did not come within the letter of the statute.

Those who are familiar with all the revolutionary events of Tryon county, can not be amazed at the infatuated conduct of the Johnson family through the whole of that eventful period. They must, on the outbreak of the struggle, have concluded that ll their princely estates in the country were lost to them, and they would henceforth deal with them and the property of their former neighbors as well as trusty adherents, as belonging to the common enemy, to be consigned to indiscriminate destruction; or they must have resolved to act the part of marauders out of mere wantonness and a spirit of revenge.

Sir William Johnson came to this country at an early day, occupying no higher position than that of land agent. By his zeal, ability, good conduct and attention to business, he acquired large estates, and was promoted to the highest honors ever bestowed by a confiding sovereign upon a colonial subject. Many are the vague surmises in respect to the cause of his death, which took place but a short time before the colonists assumed their defiant attitude to the crown. He was beloved and respected by his neighbors and dependents, and he perhaps foresaw all the miseries in store for a country he could not look upon in any other light than his own. He might have died by his own hand, but facts do not authorize this conclusion. There were, it must be admitted, many powerful considerations which should have induced his family to adhere to the royal cause. They had been bountiful recipients of their sovereign's favor. Honors and wealth had been literally showered upon them, and they felt it would be forfeiting all claim to honorable distinction, should they abandon the mother country in the eventful emergency which had overtaken it. They mistook the temper and feeling of their fellow subjects in the colonies, and did not, probably, comprehend the final result of a separation between the two countries. This family did not embrace the cautious policy of having some one or more of their number nominal adherents to the patriotic cause to protect their possessions, which was adopted by others, and some too of much less distinction and note.

The startling events of the revolution are yet remembered by a few now living witnesses, and a more just estimate of the rights and duties of nations, belligerent and neutral, seem to be more generally entertained at this day than during the last century. This no doubt has occasioned the remark that the provincial governments had been too stringent in enforcing a forfeiture against the adherents of the crown, and that when the independence of the states was acknowledged, restitution ought to have been made. It should be remembered that the colonies never encouraged but at all times deprecated the employment of the Indians in the revolutionary war, or in any way making them parties in that contest. They knew their situation; that their won country must be the battle field; and that their own frontier inhabitants would be subjected to a warfare and desolation of the most unmitigated severity, not practiced by civilized nations, and like that with which they too recently had been afflicted, to be then disremembered. When these visitations were renewed with a tenfold severity by those who had previously deprecated this mode of warfare, and when to, the object seemed to be to kill, burn and plunder, and not to subjugate and hold the conquered territory; it was not the surviving sufferer who could forgive or forget the authors of his calamities or the instruments used in the infliction of them.

To one member of this family, as soon as he was able to reach Canada, a regiment was given, called the Johnson Greens, principally composed of refugees, who made continual marauding expeditions into the Mohawk valley, during the war, and the memory of whose deeds were not forgotten at the close of the last century. The other, at the head of the Indian agency at Montreal, retaining a great influence over the western tribes, including most of the New York Indians, was zealously and efficiently employed in retaining them in the service of the crown, and encouraging and promoting expeditions against the frontier colonists, in which they were to be joined. This service was not performed by a slack hand or an unwilling mind. In this work of mischief and revenge he was but too well supported by that shrewd, active, but stern and resolute Mohawk chief, Joseph Brant, who displayed no more of the savage, in his hostile incursions, than should have been expected, perhaps, when the motives of his prompters were carefully scanned.

There may have been instances in which restitution might have found a willing response in the heart of the country; but that was not the case in respect to this family; where was the point of discrimination? That was the great difficulty. Expatriation and adherence to the common enemy were open acts of avowed hostility, so marked as not to be mistaken. If the party left the country and remained out of it until the close of the war, unless on business of an open, pacific nature, and if he failed to return to it, after being required to do so, these were taken as overt acts of hostility, sufficient to authorize sequestration and forfeiture. There could be but one rule prescribed, which must be broad enough to embrace the whole class of offenders, and while hostilities were being carried on, exceptions could not be applied, and when a state of war no longer existed and the country assumed regular and settled forms of government, it so happened that the individual states retained the whole power of remission, and these were not recognized in diplomatic relations, nor could they separately form treaties with foreign governments, or even enter into negotiations. There was no mode of remission or restitution except by individual application to the states; and here the fundamental rules of government had been settled with so much precision and exactness, as to prohibit the legislative department of the governments from granting restitution of the forfeited estates. The poverty of the states and the excited feelings of the people on the subject of the war, rendered any application for recompense entirely hopeless; and it would have been found very difficult to settle upon any rule for granting relief except that of mere grace and favor, and no refugee of that day could be found bold or craven enough to put his loyalty to that severe test. There were cases in which restitution, remission or recompense could not be asked for with even a remote prospect of success, and which, certainly, could not be granted without violating the plainest principles of justice.

The judicial tribunals of the country have always been open to appeals for legal redress, and the legislative department of the state governments has never interfered, and indeed it could not have done so with any effect, being prohibited by the fundamental law. The title to the lands in one county and part of another, in this state, held under the commissioners of forfeitures, has within twenty years been declared invalid by the courts, on the ground of some informality or irregularity, and not because the law itself was unconstitutional. The constitutions of this state have uniformly recognized the grants made by the king of Great Britain, or person acting under his authority before the 14th day of October, 1775; the constitution of the United States prohibits the state legislatures from passing laws impairing the obligation of contracts.

By the 5th article of the treaty of 1783, the United States did not agree to recommend to the legislatures of the several states to provide for restitution of confiscated estates to those who had borne arms against them, but that treaty did provide that there should be no further confiscations or prosecutions against any one, and that instrument being the supreme law of the land, was of course binding on all subordinate authorities. No claim was set up in behalf of hose who had borne arms, and this is enough to show that no violations of public faith had been committed in respect to that class of adherents to the interests of the British crown.

The treaty designated a class who should be recommended to the favorable consideration of the states, but as before remarked, the difficulty was this; the legislatures could not, or would not, discriminate between those who actually bore arms, and others who counseled, promoted, set on foot and directed a marauding expedition against their country, and humanity will justify the deed. That treaty, it is true, did secure to "persons of any other description," the right to go into any part of the United States and remain unmolested twelve months, to obtain restitution of their confiscated estates. The congress were bound by that treaty to recommend to the states a revision of all laws regarding the estates of British subjects, to render them consistent with justice and equity, and with that spirit of conciliation which ought to prevail on return of peace, and also to urge upon the states to restore to those who had borne arms against the colonies their properties an estates, on their refunding to the persons in possession the bona fide price paid on the purchase of the confiscated estates and lands. And it was further agreed that all persons having any interest in confiscated lands by debts, marriage settlements or otherwise, should meet with no lawful impediment in the prosecution of their just rights.

By the 9th article of the treaty of November 19th, 1794, commonly called Jay's treaty, American citizens and British subjects, holding lands in the territory of either party, were secured in the exercise of the rights appertaining to them in the same manner as if they were natives.

What just grounds can there be in view of all the facts involved in the case of these forfeited estates, to charge the state governments, and especially our own, with illiberality and a desire to profit by a contingency brought about by no act of its own seeking. The parties who abandoned their homes a properties, acted from choice and not compulsion, except that of duty and allegiance, which they may have thought was due to the king of Great Britain. They cast their bread upon the waters of strife; it returned not to them again. If the colonists had been crushed in the contest, these people would have returned to a wasted and depopulated country, enriched by the spoils of attainted rebels, and ennobled by a sovereign grateful for the service of preserving the brightest jewel in his crown. This was the fortune that awaited them in case of success, and they knew it. They thought this a prize worth contending for, but they misjudged in respect to the chances of success. They had not yet fully experienced the energies of the men whose motto was "one for all, and all for one," when banded together in the great struggle for life, for home, and for liberty. They did encounter those energies, and were overthrown; they grasped for the prize and lost it, and thereby forfeited all claims for restitution to abandoned houses and estates.

The American congress fulfilled its treaty stipulations to the letter, but its messages met with a cold and silent reception from the several states when they spoke of surrendering up estates to those who had been active participators in what was deemed an unjust and cruel war of aggression. While the attainder act, before mentioned, was in full force in this state, and the commissioners of forfeitures were executing their office, the constitution of 1787 was ratified, which declares that "no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted."

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