Front Page Titles (by Subject) CHAP. II.: Of the Rights of the Loyalists to Protection and Indemnity under the fundamental Laws of civil Society, and particularly under those of the British Constitution. - The Claim of the American Loyalists
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CHAP. II.: Of the Rights of the Loyalists to Protection and Indemnity under the fundamental Laws of civil Society, and particularly under those of the British Constitution. - Joseph Galloway, The Claim of the American Loyalists 
The Claim of the American Loyalists reviewed and maintained upon incontrovertible Principles of Law and Justice (London: G. and T. Wilkie, 1788).
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Of the Rights of the Loyalists to Protection and Indemnity under the fundamental Laws of civil Society, and particularly under those of the British Constitution.
THE right of the Loyalists is not originally derived from an act of the sovereign legislature. Their title to protection and indemnity for their property lost, in consequence of their fidelity to the State, and through the want of national protection, and afterwards given up by his Majesty and Parliament to the United States of America, is perfectly founded on laws coeval with the institution of that authority, and which gave it existence. It is easy to perceive that we here mean neither the prescriptive, common, nor statute laws, but those fundamental laws which form and establish civil society; laws so sacred in their nature, that they are not subject to alteration or repeal, even by the sovereign authority itself. On the contrary, they are those laws which were established before the municipal institutes of the state could exist; from which the latter derive all their authority, and which the sovereign legislature is, by the most sacred principles of honour and justice, bound to preserve inviolate, not only as the basis and foundation of its own powers, but as the dearest birthrights and sacred pledges for the protection and happiness of the people.
These laws, although too little understood, are treated of by many learned and eminent authors, among whom there is no difference in opinion respecting them. To their authority all sovereigns and their subjects either do or ought to appeal, as to the proper standards of decision, whenever disputes happen respecting the powers and obligations of the first, and the rights and privileges of the last. They are in substance,
1. The covenant or law by which each individual engages with all the rest to join for ever in one body, and to regulate with one common consent whatever relates to their common protection and preservation.
2. The law by which the form of government is settled, the sovereign authority appointed, its powers modified and limited, and its obligations and duties to the individuals who compose the society are defined and fixed. And,
3. That law which establishes the mutual covenants between the sovereign authority and the subject, by which that authority solemnly engages to consult, upon all occasions, the common benefit and safety, and to afford to every individual equal protection against the evils of a state of nature; and by which every subject promises, in return for that protection, his fidelity and allegiance to the sovereign authority.
By such laws, either tacit or express, every regular state or perfect government is formed and bound, not excepting even that of absolute monarchy, and consequently that of Great Britain. Burlamaqui, in his Treatise on Politic Law, defines them in the following manner:
“The fundamental laws of a state are not only those decrees by which the entire body of the nation determine the form of government and the manner of succeeding to the throne, but are likewise the covenants between the people and the person on whom they confer the sovereignty, which regulate the manner of government, and by which the supreme authority is limited.
“They are, as it were, the basis and foundation of the state, on which the structure of the government is raised; and because the people draw from them their principal strength and support.
“These covenants are obligatory between the contracting parties (the sovereign authority and the subject), and have the force of laws themselves. They are those promises, either tacit or express, by which princes, when they come to the throne, bind themselves, even by oath, of governing according to the laws of justice and equity, of consulting the public good, of oppressing nobody, and of protecting the virtuous.”
Having given this general idea of the nature and substance of the fundamental laws of a regular state, it is not necessary to the subject before us to dwell more particularly on those which relate to the union, and constitute the particular form, of this great body politic. We shall therefore confine our observations to those which have established the mutual obligations and duties between the sovereign authority and the people, and by which the right of the Loyalists to compensation is incontestably established. These laws are truly of the first importance. They form the great bulwark of the people’s rights and freedom, and are the only security they possess for their defence and safety, against both domestic and foreign injuries. They regard the protection due from the sovereign authority to every subject, and the allegiance due from every subject in return, by which the former is bound to protect the latter, and the latter to give the former his allegiance in all things necessary to that protection.
“By this law,” says Burlamaqui, “the subject promises his allegiance to the prince (or sovereign authority), upon condition that he will protect him; and the prince, on his side, promises the subject protection, upon condition that he will obey him. Without this law, a subject cannot be obliged to obey the prince, nor can he be obliged to protect the subject, at least by any perfect obligation.” And Lord Coke declares, when treating of this law of the British Government, “That protection and allegiance are reciprocal duties.”
But further; to shew that these mutual obligations of protection and allegiance form a part of the fundamental laws of the British constitution, we shall cite many cases solemnly adjudged in the books of law, while there is none to be found of a contrary nature or tendency. In Calvin’s case, which we are told by the first of lawyers and judges, Lord Coke, was most elaborately, substantially, and judicially argued by the Lord Chancellor and all the judges of England, and in which, we may add, all the authorities on the subject were collected and cited, the bands which tie the sovereign authority and the subject together, with their respective duties to each other, were fully discussed and clearly explained. In this case it was unanimously resolved,
1st, “That the law of nature is part of the law of England.
2d, “That the laws of nature are immutable, and cannot be changed.
3d, “That protection and government are due to the subject by the law of nature.
4th, “That the ligeance and obedience of the subject are due by the law of nature.
5th, “That neither ligeance nor protection is tied to municipal laws, but is due by the laws of nature.
6th, “That ligeance is a true and faithful obedience of the subject due to the sovereign. This ligeance and obedience is the incident inseparable to every subject; for as soon as he is born, he oweth by birthright ligeance and obedience to his sovereign. Ligeantia est vinculum fidei; et ligeantia est quasi legisessentia;ligeantia est ligamentum, quasi ligatio mentium, quia sicut ligamentum est connectio articulorum, junctorum, &c.* As the ligatures or strings do knit together the joints of all the parts of the human body; so doth ligeance join together the sovereign and all his subjects, quasi uno ligamine† .” Glanville, who wrote in the reign of Henry II. lib. 9. c. 4. speaking of the connection which ought to be between the lord and tenant that holdeth by homage, saith, “That mutua debet esse dominii et fidelitatis connexio, ita quodquantumdebet domino ex homagio,tantumilli debet dominus ex dominio, præter solam reverentiam* ; and the lord,” saith he, “ought to defend his tenant. But between the sovereign and subject, there is, without comparison, a higher and greater connexion. For as the subject oweth to the king his true and faithful allegiance and obedience, so the sovereign is bound to govern and protect his subjects. Regere et protegere subditos suos† ; so as between the sovereign and his subject there is duplex et reciprocum ligamen, quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem; merito igitur ligeantia dicitur a ligando, quia continet in se duplex ligamen‡ . And therefore it is holden in 20 H. VII. c. 8. that there is a liege or ligeance between the king and subject. And Fortescue, cap. 13. Rex ad tutelam legis, corporum et bonorum subditorum erectus est* . And in the acts of parliament of 10 R. II. c. 5. and 11 R. II. c. 1. 14 H. VIII. c. 2. subjects are called liege people, and in the acts of parliament in 34 H. VIII. c. 1. and 35 H. VIII. c. 3, &c. the king is called the liege lord of his subjects. And with this agreeth Skeene in his book De Expositione Verborum (which book was cited by one of the Judges, who argued against the plaintiff). Ligeance is the mutual bond and obligation between the king and his subjects, whereby the subjects are called the liege subjects, because they are bound to obey and serve him; and he is called the liege lord, because he is bound to maintain and defend them. Therefore it is truly said, that protectio trahit subjectionem, et subjectio protectionem† .
The intelligent mind will readily perceive, that these mutual obligations and duties, which form the political connection between the sovereign authority and the people, are essential in every regular and just government, and cannot be dispensed with on either side, without destroying the bands, and sapping the foundation, of its union. For when the people refuse, and withdraw their allegiance from the sovereign authority, it necessarily loses its power and support, and a state of anarchy and injustice must ensue; and when that authority withdraws its justice, ceases to protect the subject, and, against his consent, disposes of his property without making adequate compensation, it becomes despotic, and subverts the very design of its institution.
To understand the importance of these covenants to the safety and happiness of the subject, it is necessary to know the meaning and extent of the words protection and allegiance. For this we must look into the end which mankind had in view, by giving up their natural freedom and independence. Here we shall find that this end was, “to deliver and shelter themselves from the evils incident to a state of nature, from the frauds of the artful, and the violence and injustice of the strong* ;” by submitting to a power more wise, more just, and more strong than they were in their natural and unconnected state. To attain this purpose, they formed the union, appointed the sovereign authority, and conferred upon it all the rights and powers necessary to afford this “shelter from injuries;” which, at the same time, solemnly engaged to afford it upon all occasions against all injuries. For this engagement is not confined to any specified particular evils; but in its own nature extends to all, both foreign and domestic, which men are liable to in a state of civil society. This is simply what is meant by the word protection under the laws of all civil societies.
That it is so under the laws of the British constitution, will appear from a number of writs of protection granted by the Kings of England, to be found in the Register, and cited at large in Calvin’s case, 4 Coke’s Rep. These writs are directed to every subordinate body politic, officers and persons bound to protect the subject under the royal authority. Here “protectio regia,” or the protection of the Crown, is described in these words: Suscepimus ipsos F. et A. res ac justas possessiones et bona sua quæcunque in protectionem et salvam gardiam nostram. Et vobis et cuilibet vestrum injungimus et mandamus quod ipsos T. et A. familias, res et bona sua quæcunque a violentiis et gravaminibus defendatis, et ipsos in justis possessionibus manutencatis. Et si quid in prejudicium bujus protectionis, et salvæ gardiæ nostræ attentatum inveniretis ad statum debitum reducatis* . And in another writ, this protection is thus described: Et ideo vobis, &c. injungimus et mandamus quod ipsos G. et R. eorum homines, familias ac justas possessiones et bona sua quæcunque manuteneatis, protegatis et defendatis: non inferentes in eis, seu quantum in vobis est ab aliis inferri permittentes, injuriam, molestiam, damnum, violentiam, impedimentum aliquod seu gravamen. Et siquid eis forisfactum, injuriatum et contra eis indebiteattentatum fuerit, id eis sine dilatione corrigi, et ad statum debitum reduci faciatis prout ad vos et ad quemlibet vestrum noveritis pertinere* .
But as the sovereign authority could not perform this important duty, upon which the safety and happiness of the subject entirely depend, without the proper means, the fundamental laws have made various and most effectual provisions for that purpose. They have conferred on it a right to command the wills and strength, and personal services of every individual, whenever necessary, to afford the protection due from it; and this submission of the wills and strength of every subject to the direction and command of the sovereign, when necessary to public peace and safety, is truly what is meant in law by the word Allegiance.
The sovereign authority for the same purpose is, moreover, vested with a right to establish courts of justice, raise armies, fit out fleets, and to take and dispose of the property of the subject to pay for their extraordinary services. Thus the subject not only gives up his independence, his will and strength, to the sovereign authority, but pays in money a bona fide consideration for his protection* ; and the State being thus furnished with all the means which human wisdom has been able to devise, is, beyond all possibility of doubt, indispensably bound by law to afford it to every subject, without respect to persons. We say, to every subject, because every individual who composes the society is a party to the act of union; which is formed by each individual covenanting with the rest, and the rest with him, to unite their wills and strength in one Sovereign, for the purpose of securing their individual as well as general protection. The sovereign authority also engages to afford this protection to every individual indiscriminately, as well as to the whole society; for as the whole is made up of the individuals, it cannot defend the whole without defending every member which composes it. Besides, in pursuance of this covenant of individual protection, every subject pays his just proportion, according to his abilities, towards the support of the sovereign authority and the protection which it is bound to afford him, and therefore is equally entitled to it with the rest of his fellow-subjects. Hence it is evident, that a State cannot, with the means to which all contribute their just proportion, give protection to one part of the society, while it abandons another, without subverting the design of the union, and manifestly violating its solemn engagements, its duty, and the evident principles of reason, justice, and law.
But this right to command the personal services of the subject for the common protection, is not in any state arbitrary and unlimited. It cannot be exercised when the public good and safety do not positively require it; but when there is so much danger as to require more than the ordinary aids of the army and navy, the Sovereign is bound to call upon all to discharge their allegiance, in giving their service to protect the society; and because all are interested in the public safety, and of course bound to defend it, all are bound to obey the summons* . And if some perform their duty to the State in times of such danger, the faithful subject ought, by the most evident principles of reason and law, not only to be rewarded for his extraordinary services, but to be fully compensated for the losses he may have sustained in consequence of his fidelity and zeal in supporting the common safety, by those who enjoy the benefit of such safety, without having sustained any share in the dangers and losses incurred in the preservation of it.
Nor can the sovereign authority dispose of the property of the subject by levying taxes, when the public wants and necessities do not demand it. And when they call for, and justify it, it cannot be lawfully done with partiality or injustice. For this right extends no further than to take the sum necessary, and of that, only a reasonable and just proportion from each individual according to his ability. It cannot lawfully take from one district, and exempt another, nor from some particular persons, and except others. “The subject must be equally taxed. As every subject equally enjoys the protection of the Government and the safety which it procures, so it is just that they should all contribute to its support in a proper equality. Every man therefore ought to be taxed according to his income, both in ordinary and extraordinary exigencies* .”
The sovereign authority is moreover vested with a yet more extraordinary power, to enable it to fulfil its solemn covenant of protection. It may seize upon or destroy the property of the subject, when the necessities of the State and the public good require it. But this power, like that of taxation, is not despotic and arbitrary, but limited and conditional. For nothing less than the general interests and safety of the State can justify the exercise of it; and even then it is conferred upon this express condition — this positive and explicit obligation and injunction, to indemnify and make good the losses of the suffering individuals out of the public revenue, to which all contribute. The reasonableness and equity of this condition will be evident, when we reflect on the nature of civil society; the intent of which is, that all the individuals who have entered into and compose the union, shall partake of its protection, and of every benefit resulting from it. Nothing therefore can be more just, than that not only the expences and burthens necessary to maintain it, but every sacrifice made to preserve it, should be equally distributed and sustained by all.
If this were not the law of every civil society; if the sovereign authority possessed a right to take or destroy the property of the subject, which it is bound to protect, without making a just compensation for it, the very design of the union would be subverted, and mankind would have committed extreme solly in changing a state of nature for civil society; because in that state, although they were liable to fraud and violence, yet that fraud and violence was prohibited by the laws of nature; and it was lawful for the party injured, not only to punish the aggressor for the personal injury, but to make reprisals for the property of which he had been robbed or defrauded. But in such a civil society as we have supposed, force and injustice would be sanctioned by law, and mankind would be in a much worse condition than in a state of nature. The injured and ruined subject could make no reprisal upon the sovereign authority. He would remain, without a possibility of remedy, under the load of oppression. But so far is civil society from countenancing such extreme wrong, that the principle of equal justice and individual protection we have before laid down, is stamped in the very nature of it, and pervades all its regulations, whether they be its civil institutes or fundamental laws. To demonstrate this truth, we shall produce, in order, examples of both.
In the civil institutes of every state, it is an invariable axiom, that all sacrifices of property made by individuals for the public benefit or accommodation, shall be paid out of the public revenue.
If houses be pulled down, or pieces of ground taken from an individual for the King’s highway, an inquest shall be ordered to ascertain the value, and the amount shall be paid out of the public purse.
If land be taken by the State from an individual to erect a public building on, for any general public use, such as palaces, courts of justice, or public offices, compensation shall be made to the owner out of the public treasury.
So if the property of an individual be taken for the benefit of a county, corporation, or some particular private persons, it shall be paid for by those to whose use it is applied, and who enjoy the advantage.
If this style of equity pervades the civil institutes of all civilized states, it would be strange indeed if we should find that their fundamental laws were less reasonable and just; and stranger still, were they so perfectly iniquitous as to justify political robbery in the sovereign authority, the source from whence the purest streams of beneficence and justice ought to flow, by authorising it to take from or give up the property of individuals, which it is bound by the most sacred of all obligations to protect and defend, without making an adequate compensation; and that too for the benefit of others, who are no more intitled to its protection and justice, than the suffering and despoiled individual. But this never was the law of any state, as the following authorities of the most learned authors on politic law will irrefragably demonstrate.
Puffendorff, when treating of the fundamental law of transcendental propriety, or eminent domain, by which the sovereign authority of every state is authorised to take, destroy, or dispose of the property of individuals, when it becomes necessary to the public good or safety, and by which it is bound to make compensation to the owners of it, says,
“It will be confessed, agreeable to natural equity, that when contributions are to be made for the preservation of some particular thing, every man should pay his quota, and one should not be forced to bear more of the burthen than another; and the same holds to be equity in commonwealths. But because the state of a commonwealth may be such that either some pressing necessity will not give leave, that every subject’s quota should be collected, or else that the public may be found to want the use of something in the possession of some private subject, it must be allowed, that the sovereign power may seize upon it to answer the necessities of the state: but then, all above the proportion that was due from the proprietors, is to be refunded to them by the rest of the subjects* .”
The same author gives the following examples of the right of the sovereign authority, to destroy or resume the property of the subject, in virtue of this law:
“A sovereign may prostrate the houses offences, or lay open the fields or gardens of private men, to make room for ramparts or ditches, if it be necessary to the fortification of a town.
“In sieges, houses or trees may be prostrated or cut down to deprive the enemy of shelter.
“If private men lay by materials for their own use, such materials may be seized and made use of in fortifications.
“If, in a general scarcity, the storehouses and granaries of private men are shut up, they may be opened to supply the necessities of the people.
“The private coffers of individuals, who see the state in extremity, and will not lend their money, may be seized and rifled. Cyrus did so, engaging to make restitution, and it was held lawful and justifiable. But the conduct of the indebted and bankrupt Cæsar, in compelling the Romans to lend him money, and resolving never to pay it, has been ever adjudged unlawful; not because he compelled them to make the loan, but because he resolved not to pay it.
“And if there is no other means of saving a society, but that of destroying a part ordistrict of it, the Sovereign may lay it waste and remove whatever may be serviceable to the enemy out of it.”
All these acts are justifiable under the fundamental law of eminent domain, or transcendental propriety, common, indeed essential, to all societies. “But, however,” says Puffendorff, when treating of them, “without dispute, they that have lost or sacrificed their fortunes to the public safety, in such extremities, ought to have a restitution or satisfaction made them, as far as possible, by the commonwealth.”
Burlamaqui, when treating on the same subject, says, “That it is really a maxim of natural equity, that, when contributions are to be made for the necessities of the state, every man ought to pay his quota, and one should not be forced to bear more of the burthen than another.
“And since it may happen that the pressing wants of the state may oblige the Sovereign to seize on something in the possession of some private subject, it is just in these cases, that the proprietors should be indemnified either by their fellow-subjects, or by the Exchequer, for what exceeds his proper share, at least as near as possible* .”
Having thus shewn that the State is bound by law to make compensation for the property of the subject, taken or destroyed by the sovereign authority in cases of necessity, or the public benefit or safety; we will next inquire, what the law is, where that authority is obliged to give up by treaty the property of the subject with the territory ceded.
All authors on the fundamental laws of civil society agree, that the sovereign authority has no right to alienate a province, without impending public necessity, against the consent of the whole nation, more especially without the consent of the province intended to be alienated, although all the other districts agree to it, nor without the consent of every man of that province. The reasons are, the union of civil society is formed by a mutual, joint, and perpetual contract, to which the province and every individual are parties, jointly interested in, and equally intitled to, the protection and every other benefit flowing from it, with those of the other districts; and, of course, the union cannot be dissolved or impaired by the other co-parties without their consent. The right of plurality of suffrages, which is proper and just in the decision of other matters, cannot therefore extend so far as to dissolve or violate the union thus formed by all, nor to cut off from the body politic of the State, those who have not violated their engagements under the laws of the society. Nor can any subject be deprived of the right he has acquired by the act of union, of being a part of the body politic, and enjoying all its benefits, except by way of punishment for crimes committed against the laws. “For as no subject can lawfully take the crown from a prince without his consent, so neither has a king a power to deprive a subject of his right or property, or to substitute another sovereign over him without his consent* ”
But to this law there is one, and only one, exception, founded on the law of necessity, which is superior to all other human laws, and binding on the sovereign and subject of every state. By this law, the sovereign authority, which is bound to prefer the general safety to that of a part, “when there is imminent danger of perishing, or suffering extreme evil, if they continue united,” may give up a part to save the remainder; but, in this case, the nature of civil society, the mutual and common benefits established by its union, and the protection and individual security which constitute its essence, together with the equitable condition upon which this law of necessity operates, all require that those subjects who have thus innocently suffered by an act of the State, for the benefit of their fellow-subjects, should be fully indemnified by those who have been benefited and saved by the sacrifice.
But, in such case, what becomes of the people resident in the territory ceded; of their personal safety, of the protection of their property, and of their political rights, liberties, and immunities, derived from, and secured to, them by the union, and which the sovereign authority is bound to preserve inviolable? Has any State a right to cede them with the territory, by virtue of this law of necessity? By no means; for this law extends only to a conditional disposal of the subjects property: and therefore, although a State may lawfully give up a part of its territory to save the remainder; yet it cannot, under any law whatever, dispose of the persons and political rights of the people residing in the part ceded to another sovereign. For if such was the law, it might transfer them to the most despotic tyrant, and reduce them to the most abject slavery. It cannot transfer the duties which they owe to the society, nor its own obligations, as the sovereign trustee and protector of their rights and liberties: it cannot transfer their allegiance, nor abandon the protection of their rights and privileges without their consent, while they obey the laws and perform the duties of citizens. And therefore, when such cessions have been made, it has been customary to stipulate, that if the subjects residing in the territory ceded, choose to adhere to the union, and enjoy the rights they are entitled to under it, they may leave the territory given up, and retire to the society of which they are members. And when the subject has made his election, by taking the benefit of such stipulation, it has ever been the uniform practice of States to receive them, and to continue to them all the rights, liberties, and immunities to which they were entitled before the cession, and more especially to the protection and indemnity due to them by law, for the property given up by an act of the State for the benefit of the society.
Any thing short of this, no necessity, however extreme, can possibly justify; because mankind never yet conferred on the sovereign authority a right to give up or injure their persons, or to dispose of their rights and properties, while they performed their engagements, without making them full compensation; and had such a transfer ever been made, it would have been void in itself, as the persons making it could not possess such a right under the laws of nature established by God himself. These laws, on the contrary, enjoin mankind, under the heavy penalties of misery and want, to consult and pursue the means of their own preservation, welfare, and happiness; and no human covenant, no necessity, can justify a violation of them. Hence all the rights and powers ever yet conferred on any sovereign authority, by the union of civil society, have been conferred in trust, and under the most sacred obligation entered into on the part of that authority, to defend, protect, and preserve their persons from injury; and not to devote their lives to ignominious death, nor to dispose of their rights and properties without making full compensation, while they behave with fidelity to the laws of the society.
This truth will appear evident, not only from the laws of the British constitution, but from every authority to be found in authors who treat on politic law, and the established principles of every regular State.
That the Crown, in the British constitution, is not only bound to defend the subject in his person, but also in his goods and chattels, rights and privileges, will appear evident from the writs of protection I have before cited, and many others to be found in the Register; and the law is equally settled, that if the State fails to afford this protection, it is “bound to place the subject who has suffered through a want of it, in the same state he was in before the injury received;” that is, to make him adequate compensation. For the words of the writs in the Register, of folio 25, 26, as I have before said, are, “Et si quid in præjudicium bujus protectionis et salvæ gardiæ nostræ attentatum inveniretis, ad statum debitum reducatis.” And, “Et si quid eis forisfactum reformari faciatis.” And, “Et si quid forisfactum, injuriatum vel contra eos indebite attentatum fuerit, id eis sine dilatione corrigi et ad statum debitum reduci faciatis, prout ad vos et quamlibet vestrum noveritis pertinere.”
To these authorities we will add that by 11 H. VII. c. 1. it is declared, “That by the common (fundamental) law of England, the subjects are bound by their duty of allegiance to serve the Prince against every rebellious power and might. And that whatever may happen in the fortune of war, against the mind of the Prince (to the prejudice of his subjects), it is against alllaw and good conscience, that such subjects attending upon such service should suffer for doing their true duty of allegiance.”
Upon this statute, so important to the rights both of the Crown and the subject, Justice Forster, whose authority will ever be respected in courts where the principles of justice are understood, makes the following observations: “Here is a clear parliamentary declaration, that, by the ancient constitution of England, founded on principles of reason, equity, and good conscience, the allegiance of the subject is due to the King for the time being, and to him alone. This putteth the duty of the subject upon a rational and safe bottom; and he knoweth that allegiance and protection are reciprocal duties.” That is, in other words, that the subject “knoweth” that the State is as perfectly “bound by the principles of reason, equity, and good conscience,” principles, the force of which no human law can supersede, to protect and defend his person and property against all violence and injuries, as he is bound to obey, and assist the Prince, in defending the State in time of need and danger; and that if he fails in the protection, and violates his engagement, he is bound by the same principles to make the subject adequate compensation. Indeed, this is the law of every regular State, as will appear from all the books on the fundamental laws of civil society.
Puffendorff therefore says, “That under the law of Eminent Domain (which alone gives the sovereign authority a power over the property of the subject), if a Prince is compelled by necessity to alienate in a treaty a part of his dominions, the losses of individuals, whose fortunes are sacrificed to the national safety, must be made good by the nation.
“What power (continues the same author) the commonwealth has to cede the goods of private subjects upon a pacification, must be discovered from the nature of transcendental property; upon the force of which the goods and fortunes of private men may be given up whenever the necessities of the State and the public interest require it: but with this consideration, that the state is obliged to make good such losses to the subject out of the public revenue. But whether a particular subject’s goods may be ceded, or taken from him, must in a monarchy be determined by the Prince; and the whole body of the subjects, upon his command, is obliged to make satisfaction to the persons that have sustained loss upon the public account beyond his own proportion.”
Burlamaqui, when treating on the same law, says—“As to the effects of a private subject ceded with the territory, the Sovereign, as such, has a transcendental and supereminent right to dispose of the goods and fortunes of private men; consequently he may give them up as often as the public advantage or necessity requires it; but with thisconsideration, that the State ought to indemnify the subject for the loss he has sustained beyond his own proportion.”
M. de Vattel asserts the same law, and tells us, “That the right which belongs to the Society or the Sovereign, of disposing, in case of necessity, and for the public safety, of all the wealth contained in the State, is called the Eminent Domain. It is evident that this right is, in certain cases, necessary to him that governs, and consequently is a part of the sovereign power; when, therefore, it disposes, in a case of necessity, of the possessions of a community, or of an individual, the alienation will be valid. But Justice demands that this community or this individual be recompensed out of the public money; and if the Treasury is not able to pay it, all the citizens are obliged to contribute to it. For the expences of a State ought to be supported equally and in a just proportion. It is in this case, as in throwing merchandize overboard to save the vessel.”
Authorities from every other author on the fundamental laws of civil society might be adduced to support the same truths; but these are so plain and decisive, that more would be superfluous. They incontestably prove, that the sovereign authority of every State is bound, in all events, to protect the subject—that the right vested in it, of disposing of the subjects property in a treaty or pacification, is not arbitrary, but limited and conditional, even in an absolute monarchy; that it cannot be lawfully exercised but when the necessities and safety of the State require it, and even then it is given with this consideration and sacred obligation inseparably annexed, to indemnify the subject for the loss he has sustained in consequence of it. To this we will add, that it is impossible for a mind open to the conviction of reason and truth, to consider these authorities, without confessing that they perfectly embrace and evidently support the claim of the Loyalifts, whose property has been first lost through a want of the protection due to them by law, and afterwards given up by treaty to the American States, in satisfaction for damages alleged by them to have been done, by the British troops, and as the price and purchase of the national peace and safety. Their case indeed far surpasses in public merit, and has a much higher demand upon the honour and justice of Parliament, than the cases to which the preceding authorities apply* ; for those authorities state no peculiar merit in the sufferers—no solemn assurances of protection and indemnity previously given by the sovereign authority—no extraordinary exertions of the sufferers in the common cause, nor any dangers encountered in supporting the rights of Parliament: but the right of compensation and indemnity is declared upon the mere cession of the property of the subject with the territory; and upon the law and equity which enjoin the State to distribute the losses, burthens, and sacrifices sustained on the public account, among the whole society who receive the benefit resulting from them.
[* ]“Ligeance is the bond or obligation of faith between the sovereign and all the members of civil society; and ligeance is, as it were, the essence of the law of union. Ligeance is the ligature which, as it were, ties and binds the minds of the sovereign and subjects together; because, like a band or ligature, it forms the connection, and binds the limbs, joints, muscles, nerves, &c. and the head of the human body together.”
[† ]“As in one sacred and inviolable band.”
[* ]“The connection or obligation between the Lord and his tenants ought to be mutual, so that as much as is due from the tenant by homage to the lord, so much the lord owes to his tenant from his power and right of dominion, a dutiful respect only excepted.”
[† ]To govern with justice, and to protect the subject from all manner of violence and injuries, both foreign and domestic.
[‡ ]There is a double and reciprocal obligation and duty, because, as the subject is bound to obey the sovereign, so the sovereign is bound to protect the subject; therefore, more especially, ligeance is called a ligature, because it implies a double and reciprocal obligation between the sovereign and the subject.
[* ]The king is appointed to execute the laws, to administer justice to his subjects, and defend their persons and goods.
[† ]“Protection of the sovereign draws to it and commands the obedience and subjection of the people; and the obedience and subjection of the people draws and commands the protection of the sovereign.” Any thing short of this would destroy the reciprocity of the obligations and duties between the sovereign and subject.
[* ]“We have taken the said F. and A. their estate, their possessions and goods of every kind, into our protection and safe-keeping; and we enjoin and command you, and every of you, that you defend the said T. and A. their families, estates, and goods of every kind, from violence and injury, and preserve them in their just possessions. And if you shall find any thing done to the prejudice of this our protection and safe keeping, that you restore them to the same state in which they were before the injury committed.”
[* ]“Therefore we enjoin and command you, that the same G. and R. their persons, families, possessions, and goods of every kind, you maintain, protect, and defend; not doing to them yourselves, nor, as much as in you lies, suffering to be done to them by others, any injury, trouble, loss, violence, let, or damage whatsoever. And if any thing be wrongfully or unjustly done against them, that without delay you cause it to be remedied, and them restored to the state they were in before the injury done, as you know you, and every of you, ought to do.”
[* ]“Taxes are contributions paid by the subjects to the state, for the preservation of their lives and properties.” Burlamaq. part iii. c. 5. s. 10.
[* ]His Majesty, when the American opposition broke out into “open and avowed rebellion,” well understanding this law, and the nature of the subjects duty under it, declared, “That all the subjects of the realm, and the dominions thereunto belonging, were bound by law to be aiding and assisting in suppressing it* ,” and therefore called upon all to unite for that purpose.
[* ]Burlamaq. p. iii. c. 5. f. 14.
[* ]Puffendorff, b. viii. c. v. f. 7.
[* ]Burlamaqui, Pol. Law, part 3. c. 5. § 27, 28.
[* ]Burlamaqui, part 3. c. 5. § 38.
[* ]See Chap. V.
[* ]His Majesty, when the American opposition broke out into “open and avowed rebellion,” well understanding this law, and the nature of the subjects duty under it, declared, “That all the subjects of the realm, and the dominions thereunto belonging, were bound by law to be aiding and assisting in suppressing it* ,” and therefore called upon all to unite for that purpose.
[*]See the proclamation in the Case, ch. 2.