The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction.
• The Claim of the American Loyalists Reviewed.
• Chap. I.: The Case of the American Loyalists Briefly Stated.
• 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.
• Chap. III.: On the Usage of Nations, Under the Fundamental Laws of Civil Society.
• Chap. IV.: Of the Sense and Declaration of His Majesty and Parliament, On the Right of the Loyalists to Compensation, When Their Aid Was Thought Necessary to Suppress the Rebellion.
• Chap. V.: Of the Usage and Precedents of Parliament, Under the Fundamental Laws of the British State.
• Chap. VI.: Of the Sense and Declarations of the Members of Both Houses of Parliament In Their Debates On the Treaty of Peace, Upon the Right of the Loyalists to Indemnity and Compensation.
• Chap. VII.: Of the Doctrine of the Right Honourable Mr. Pitt, Applied to the Claim of the Loyalists.
• Chap. VIII.: Of the Benefits Received By the British Nation, From the Sacrifice Made of the Property of the Loyalists.
• Chap. IX.: Objections Answered.
• Appendix.

CHAP. IV.

Of the Sense and Declaration of his Majesty and Parliament, on the Right of the Loyalists to Compensation, when their Aid was thought necessary to suppress the Rebellion.

WE can look nowhere for the sense of the two Houses of Parliament, but in their own records. Here we find the most clear and positive decisions upon the right of the subject to compensation for injuries sustained in consequence of his allegiance, and through a want of the protection which the State is bound to afford him by law.

The occasion of these resolutions were certain tumults and insurrections “against the authority of the Crown, and rights of Parliament,” which took place in America in 1764, as stated in the foregoing Case. The civil and military powers of the State then in the colonies, were either incompetent, or not exerted, to protect the people. Sundry houses, and other valuable property of divers persons who had attempted to carry an Act of Parliament into execution, were destroyed by the mob. After full consideration of these facts, the two Houses of Parliament

Resolved, “That an humble Address be presented to his Majesty, to require the assemblies of the American provinces to make a proper recompense to those who had suffered in their persons or properties in consequence of the said tumults and insurrections.”

In this resolve the sense of Parliament on three points is manifest: 1st, That those who had suffered through a want of protection in “their persons or properties,” were entitled to “a proper recompense.” For otherwise, it is not to be supposed that the two Houses would insist that the Colonial Assemblies should make it. 2. That the subordinate governments of the colonies, which had been vested with the proper powers, and had assumed the protection of the subject within their inferior jurisdictions, were bound to make “a proper recompense” for injuries done to the subject through a want of their protection; and, 3d. That his Majesty and Parliament were bound by law to compel, if necessary, the Assemblies to make it. This is fully implied in their right “to require it* .”

The two Houses, however, suspecting that the Provincial Assemblies, in the then tumultuous state of the provinces, would not comply with the requisition; and knowing that Parliament, as the supreme source of power, protection, and justice, was bound either to compel a compliance, or to make the recompense itself, at the same time, and upon the same occasion, concurred and

Resolved, “That all his Majesty’s subjects residing in the said colonies, who have manifested a desire to comply with, or to assist in carrying into execution any Act of Parliament in the British colonies in North America, have acted as dutiful and loyal subjects, and are therefore entitled to, and will assuredly have, the favour and protection of this House.”

In the year 1767, when those tumults were renewed, the two Houses were more explicit, if possible, in regard to the right of the subject to indemnity for losses sustained in consequence of his allegiance to the Crown, and his support of the rights of Parliament. And again

Resolved, “That all persons, who, on account of the desire they have manifested to comply with, or to assist in carrying into execution any Acts of the Legislature of Great Britain relating to the British colonies in North America, have suffered any injury or damage, ought to have full and ample compensation made to them for the same by the respective colonies.”

And lest the colonies should not comply with this act of public right, and the confidence of the Loyalists in the ultimate justice of Parliament should be thereby abated, the House of Commons again

Resolved, “That all such persons have acted as dutiful and loyal subjects, are therefore entitled to, and will assuredly have, the protection of the House of Commons of Great Britain.”

It is impossible for a person conversant in the laws of civil society to read these resolves without perceiving the following truths:

1st. That they are founded on, and declaratory of, the fundamental laws of the British constitution, which have established the reciprocal obligations, duties, and rights, between the sovereign authority and the subject.

2d. That in and by these resolves the two Houses of Parliament have expressly asserted the right of the subject who had suffered in his person or property, in consequence of his only “manifesting a desire” to comply with an Act of Parliament, “to ample compensation.”

3d. That the two Houses have, by their repeated resolutions, in the most unequivocal manner, pledged themselves to do justice to the subject upon the right so confessed and asserted, by the most solemn assurances of protection and indemnity for the “injuries and damages sustained.”

4th. That the protection thus solemnly promised is not a matter of favour depending on the pleasure or discretion of the two Houses, but a right; or, to use the word of the resolves, a “title,” incontrovertibly founded in the fundamental laws of the State; a right coeval with the British constitution, and as firmly established as any one right of Parliament itself; and therefore a right which the two Houses are bound, were their solemn assurances out of the question, by the most sacred principles of honour and justice to fulfil.

But it may be here asked, What did the two Houses mean by protection? The answer to this question is, That they could mean nothing else but that “protection” to which the subject has a right under the laws of the British constitution, and indeed of every civil society, which is by no means ambiguous. It is that security of person and property, that shield or cover from injuries, of which mankind were destitute in a state of nature, and to obtain which he gave up his natural liberty, ana entered into civil society. The word itself is derived from the Latin term protego, to shelter, to cover from evil. This important blessing, upon which the safety and happiness of the subject entirely depend, is secured in the constitution of every State by various means and by various sources; from the military establishment, from the civil courts of justice, and in cases where these are incompetent, from the sovereign authority. The King is bound to protect the subject in the possession of his property, by the military power, when necessary; but the courts of justice and the two Houses of Parliament are bound to give him “protection for injuries sustained, for property lost or destroyed, or given up by the State.” And this can be done only in the mode of compensation; in the courts of justice, by compelling the person who has done the injury to make good the damages; and in the two Houses of Parliament, by giving that indemnity and compensation which are due to the subject by the laws of the State.

But were the word protection of ambiguous meaning, we could not be at a loss for the sense in which the two Houses have used it. Their own resolves declare it to be “a proper recompense, full and ample compensation, which those who have suffered any injury or damage, on account of the desire they have manifested to comply with any acts of the British legislature, ought to have, are entitled to, and will assuredly have, from theHouse of Commons of Great Britain.”

The protection of a State in every precedent to be found either in the books which treat of the fundamental laws of civil society, or in the resolutions and acts of the British Parliament, means, “restitution,” “satisfaction,” “indemnity,” “recompense,” “compensation.” Grotius, when treating of the right of the sovereign authority to give up the property of the subject, calls it, “restitution,” “satisfaction;” Burlamaqui, “indemnity, and indemnifying the subject for the injury sustained;” and Vattel, “recompense out of the public money.”

Indeed the protection thus declared to be the right of the subject, and solemnly promised by the two Houses, can be nothing but the same which was given by Parliament to the citizens of Glasgow for their loyalty, in putting that city in a posture of defence against the rebels, which was a full reimbursement of the sum expended. It is the same which was given by 4 Geo. I. to all persons who had continued faithful to his Majesty, and whose houses and goods had been destroyed either by the rebels, or the King’s army, in Scotland or Lancashire, and who were “fully reimbursed,and repaid their losses by the respective Exchequers of England and Scotland.” It is the same which was given to Daniel Campbell Esq; whose property had been destroyed by a mob, on “account of his promoting an act for laying a duty on malt, who was paid his great losses and damages, clear of all deductions.” It is the same which was granted to Dr. Swinton, for houses destroyed at Chester, in consequence of the preceding rebellion, who was paid for them out of the public aids granted to the Crown. And it is the same which was given to the Duke of Montagu, the proprietor of St. Lucia, when the British government found it necessary to the peace and interest of the nation to cede that island to France, “who was amply recompensed for his loss, both in honour and revenue.”

From the sense and declarations of the two Houses of Parliament, we will pass to those of his Majesty, which we shall find in his Royal Proclamation, stated in the preceding Case, and drawn up by the then Attorney and Solicitor Generals, now Lord Thurlow and Lord Loughborough. Here the opinion of his Majesty on the fundamental laws of the British constitution, and the right of the subject arising from them to protection and indemnity, will appear to be clearly the same with that of the two Houses of Parliament; and we may certainly conclude, that his Majesty’s deliberate judgment upon the law of the land and the right of the subject, thus aided by the advice of his privy council, and of the most eminent judges of the law, cannot lessen, but will corroborate, that of the two Houses. From a little consideration of this proclamation, the following matters are either expressly or implicitly asserted and declared.

1st. “That an open and avowed rebellion existed in his American dominions.”

2d. “That not only ‘all his Majesty’s officers, civil and military, were obliged to exert their utmost endeavours to suppress the rebellion,’ but all the subjects of his realm, and the dominions thereunto belonging, were bound, by law, to be aiding and assisting in the suppression of it.”

3d. That his Majesty having thus clearly pointed out the duty of the subject, in order to prevent their “neglecting or violating it through ignorance thereof;” he expressly forbids them to admit “any doubt of the protection which the law will afford to their loyalty and zeal.”

4th. That the protection which his Majesty has so unequivocally declared to be the lawful right of the subject, can mean nothing else but what the law means, which, as we have before shewn, is a restitution of the property lost, if regained by the State; or if lost through a want of the protection due, or given up by the State, recompense, indemnity, and compensation for it. And,

5th. That his Majesty, supported by the preceding resolutions of the two Houses of Parliament, and the law of the land, has, in a manner the most solemn, pledged his royal faith to every subject who should, during the rebellion, discharge his duty with “loyalty and zeal,” by declaring in his royal wisdom, that to those “who should assist in suppressing the rebellion, the law would, without doubt, afford protection.”

But it may be asked to whom were these declarations and solemn assurances made by his Majesty and Parliament? It was from the year 1764 to 1782, that the unlawful resistance to the “authority of the Crown, and the rights of Parliament,” was continued. It was in 1764 and 1767, that the resolutions of Parliament were made. The latter were expressly directed to “his Majesty’s subjects residing in the colonies,” to incite them to support that authority and those rights. And it was in 1775, when the same lawless resistance broke out into “open and avowed rebellion,” that his Majesty issued his proclamation, calling on all his subjects to assist in suppressing it. Now let the fact be enquired into, and it will readily appear, that the American Loyalists are the very subjects described in the proclamation and resolves; the persons they were pointedly intended to encourage, and who, placing the utmost confidence in them, have fully complied with the duty required of them by his Majesty and the two Houses, and of consequence the identical persons to whom the faith of Majesty and the honour and justice of Parliament have been solemnly pledged for their protection and indemnity.

Indeed it has already appeared to the Commissioners of Inquiry, appointed by Parliament, that these unfortunate but faithful subjects of the British Crown have not only manifested a desire to comply with, and to assist “in carrying into execution the acts of the British Parliament,” in strict conformity to the Parliamentary resolves and the Royal command; but with a degree of fortitude which no dangers could abate, and with a loyalty and zeal unprecedented in the annals of nations, have risked their lives, and been deprived of their fortunes, in direct consequence of those resolves, and their obedience to the command of their Sovereign. A number of them have moreover suffered the most ignominious deaths; others, and not a few, have been confined, and perished in loathsome dungeons and polluted mines, and many have been assassinated and barbarously murdered. And when the State ought to have regained their property, and restored it to those who survived, and to the widows and orphans of those who had virtuously perished in the cause of their country, it was given up as the price and purchase of peace for their fellow-subjects, who have been near five years in the possession of the benefits and blessings purchased by that sacrifice. And yet these faithful subjects have been thus deprived of their property near twelve years, and near five years have elapsed since the compensation due by law ought to have been made.

It is well known that this delay of justice has produced the most melancholy and shocking events. A number of the sufferers have been driven by it into infanity and become their own destroyers, leaving behind them their helpless widows and orphans to subsist upon the cold charity of strangers. Others have been sent to cultivate a wilderness for their subsistence without having the means, and compelled through want to throw themselves on the mercy of the American States, and the charity of their former friends, to support that life which might have been made comfortable by the money long since due to them by the British Government; and many others, with their families, are barely subsisting upon a temporary allowance from Government, a mere pittance when compared with the sum due to them.

May not subjects who have thus suffered, whose lives have been risked in the cause of their country, and whose property has been devoted to the public safety, with all due deference and respect ask these questions: Were not his Majesty and the two Houses of Parliament in earnest when they made the preceding declarations? Did they not speak the language of law and truth? If they were in earnest, as we must conclude, can Parliament now say that his Majesty’s proclamation and their own solemn resolutions meant nothing? Nay more, will they reverse their own declarations, and now assert that the “dutiful and loyal subjects,” who have risked their lives in supporting the rights of Parliament, “ought” “not” “to have” ample and full compensation for losses sustained in consequence of it; and “that they are” “not” entitled to, and assuredly shall “not” have the “protection” of Parliament? This surely is impossible!

Shall subjects to whom these royal and parliamentary assurances have been solemnly made, longer solicit for that protection and indemnity to which the laws of the land give them an undoubted right? Will Parliament longer withhold from them the justice it has afforded to every other person in their predicament, ever since the establishment of the present government? What plea or pretence can justify the distinction, and vindicate a treatment of them as men out of the protection of the laws? What crime have they committed which can justify such unprecedented partiality? They have committed none, unless innumerable acts of the most affectionate loyalty to his Majesty, and the most undaunted zeal in supporting the rights of Parliament, be those crimes. Can such acts be really criminal in the opinion of Parliament, after having excited the Loyalists to commit them; after having declared the law which commands them, and pledged its faith for the protection and indemnity of the persons committing them; after having suffered their fortunes to be confiscated by the rebel States through a want of the protection due to them, and after it has sacrificed their property to the benefit and safety of their fellow-subjects, without having made compensation?

To these arguments we will only add, that by the treaty, the independent sovereignties of the American States were unconditionally confirmed, and consequently the sanguinary laws by which the Loyalists were attainted. These laws remain in force to this day, and the American States stand justified, by the treaty of peace, to put those of them to death who shall appear within their jurisdictions. A number of them have been imprisoned and cruelly treated, and with difficulty escaped the ultimate punishment which those laws inflict.

Now, although it is allowed that the British government might lawfully dispose of the property of its subjects for the public safety, making them adequate compensation, it will not be contended that it could possibly have any right, under any law either human or divine, to confirm unlawful acts, which devoted the lives of several thousands of its innocent and faithful subjects, on any account or upon any pretence whatsoever. If it could not obtain a repeal of such laws, it certainly ought not, by any means whatever, to have given its sanction to them. Indeed, this was an act so fundamentally wrong, that it is impossible to suppose his Majesty, whose paternal affection for his people is so well known, or that the two Houses of Parliament, whose honour and justice have ever remained unsullied, would have approved of it, however urgent the public necessity, had not their minds been impressed with the most firm and immutable resolution to make the most ample and complete reparation for it.

[* ]The word require was adopted by the Commons instead of recommend, which was said to be too loose and discretionary. And Mr. Pitt, that great Statesman, approved of the requisition to make the recompense, by a resolve of the House, saying, it was building on a rock that could not be shaken by the refractory and peevish humour of the Colonies; but, on the contrary, might be established and executed by an act vindicatory of their resolve, if neglected, or not immediately complied with. MS. Report.