The Online Library of Liberty

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• 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. V.

Of the Usage and Precedents of Parliament, under the fundamental Laws of the British State.

WE have seen in the preceding chapters, that the Sovereigns of every State have held themselves bound by the laws of civil society never to abandon the protection of the subject in their greatest extremities; that even when they have been under the necessity to give up a part of their dominions to save the remainder, the property of the subject has been still an object of their utmost protection and care: that in all cases where it could be done, it has been reserved by treaty and restored to the owner; and where the nature and issue of the war have not admitted of such restitution, the usage founded on the law has been, to indemnify the private sufferer out of the public revenue, and by that means to divide and distribute the burthen equally and justly among those whose protection and safety have been purchased by the sacrifice. This being the universal practice of States, it would be strange were there not precedents of it in the administration of the government of Great Britain. On the contrary, it will be found, upon perusal of the Books of Statutes and the Journals of the House of Commons, that the sovereign authority has ever held itself bound by law to make a just compensation to the subject, not only in cases similar to that of the Loyalists, but in others of infinitely less public merit. To demonstrate this truth we will cite the following cases.

1’st. Wherever the rights or property of the subject has been taken from him by the State, to answer some public convenience or benefit.

When it was found necessary to the public welfare to unite the two kingdoms of England and Scotland, and to deprive the city of Carlisle of certain tolls, adequate compensation was made for the loss of them. Com. Journ. vol. 15. p. 336.

When Parliament thought it necessary to the public peace and safety, to suppress the heritable jurisdictions in Scotland, it gave to the proprietors £152,037 as compensation. Ibid. vol. 25. p. 301.

When the exclusive rights and privileges of the African Company were thought injurious to the national commerce, Parliament deprived them of their charter; but gave them £112,140 as a just compensation. Com. Journ. vol. 26. p. 408.

When a resumption by the Crown of the royal jurisdiction of the duke and duchess of Athol, was found necessary to the interest of the public revenue, the sum of £70,000, with an annuity to the survivor, was given by Parliament as a full compensation. Ibid. vol. 30. p. 225. 228.

£22,500 was given to the proprietors of Carolina for their rights of government, when it became necessary to the peace of the province, that the Crown should resume them. Ibid. vol. 21. p. 426.

And Parliament has been so careful not to infringe on the smallest rights of the subject without making compensation, that it would not take from the clerks of the Secretary of State’s office the savings they made, by sending letters free of postage, without a compensation.

2d. Where the property of the subject has been destroyed, to prevent some public mischief.

When the cattle of the subject has been destroyed, to prevent infection, by an order of the State, he has been always paid the value out of the public revenue. Com. Journ. vol. 32. p. 966. Vol. 33. p. 714.

If ships are burnt by order of the State, to prevent the plague, the owners have been always paid their value. Ibid. vol. 89. p. 604. 606.

3d. Where the property of individuals has been destroyed, lost, or injured by a failure of the sovereign authority in fulfilling its public engagements, by not affording the protection due to the subject by the fundamental and essential laws of the British constitution, Parliament has ever made a just compensation.

In March 1716, several persons having suffered, through a want of the protection due to them as subjects, by the tumultuous and rebellious proceedings in sundry counties, £5577 were granted by Parliament, to make good their losses. Com. Journ. vol. 18. p. 495.

The saw-mill of Charles Dingly being destroyed by a number of disorderly and tumultuous persons, Parliament paid him the value of his loss. Ibid. vol. 32. p. 240.

If Parliament, from a due sense of the laws of the land, and of the protection which it is most sacredly bound to afford to every subject, has thought itself bound to make compensation in the preceding instances, where the sufferers could pretend to no public merit, farther than that they were peaceable subjects, how stands the law in respect to those faithful citizens, who, in obedience to the royal command, and under the most solemn assurances of protection from his Majesty and from both Houses of Parliament, have fulfilled the duties of allegiance with activity and “zeal;” and, at the risk of their lives and fortunes, have stepped forth in defence of the royal authority and the essential rights of Parliament? Are such subjects entitled by law to less protection and less justice than those who have manifested no merit, on account of their fidelity to the State? Surely they are not. — Every principle of reason, law, and justice, and the uniform usage of a British Parliament, forbid it. And therefore,

4th. In pursuance of the law of the land, the usage of Parliament has been, whenever the subject has suffered loss or damage in consequence of a performance of the least of his political duties to the State, in which he has not been protected, to make him adequate and full compensation for his losses.

In the year 1725, Daniel Campbell had given his vote for the bill for laying a duty upon malt. A mob at Glasgow destroyed his property; Parliament adjudged that he was entitled to full compensation, “clear of all deductions.”

It is proper to observe, that this statute is clearly declaratory of the fundamental laws of the British constitution, which establish the reciprocal obligations of protection and allegiance, with the right of the subject to compensation for losses sustained through the want of that protection; because, by this statute, the King, Lords, and Commons, declare, “That as the great losses and damages sustained were on account of the concern he had, or was supposed to have had, in promoting the act for laying a duty upon malt, it is just and reasonable, that the said damages and losses should be made good and repaid to the said Daniel Campbell, clear of all deductions.” And it is further observable, that the Parliament of that day thought it true policy, as well as justice, further to declare to the subject, that full compensation was due by law to those who had suffered in consequence of a mere supposition that they had discharged the least of their political duties to the State.

In the year 1689, during the rebellion in Ireland, the House of Commons made ample provision for the support of the Irish nobility, gentry, and clergy, whose estates had been confiscated in consequence of their fidelity to the Crown of England, and who had taken refuge under the British government. Com. Journ. vol. 10. p. 204. 212. 217. 259. 97, 98. And,

In the same year, the rebellion being suppressed, by the statute of the 1 W. and M. c. 9. “All the Protestant subjects, who had continued faithful in their allegiance during the rebellion in Ireland, and had incurred a forfeiture of their estates under acts of the Irish Parliament,” were restored to their “possessions, as well ecclesiastical as temporal, in the same manner they were held before the rebellion.”

Compensation was made for the losses sustained by those who had defended London-derry during the siege, out of the public fund raised by the confiscated estates of the rebels. Ibid. vol. 13. p. 291. 293.

In 1705, the House of Commons, on the petition of Elizabeth Wanderford, stating, that her husband, on account of his zeal and service in Ireland for the late King William, had been condemned as a traitor and his estateconfiscated, voted her an annuity as compensation. Com. Journ. vol. 13. p. 54.

In the year 1708, Alexander Grant was reimbursed by a vote of the House of Commons, for the waste committed by the rebellious clans in Scotland. Ibid. vol. 15. p. 580. 588.

In the year 1715, by the first of Geo. I. c. 24. On account of the loyalty and zeal which the citizens of Glasgow had shewn, in putting themselves “in a posture of defence against the rebels and traitors,” Parliament, “in consideration of their losses and expences,” granted “to the city a duty upon ale and beer for the space of twenty years.”

By the 4th Geo. I. c. 44. the subjects who had behaved with fidelity to the Crown during the rebellion, and whose property had been destroyed by the rebels, were fully recompensed for their losses.

In the year 1717, by the 4th Geo. I. c. 8. it was enacted, “That all persons who had continued dutiful and faithful to his Majesty, and whose houses or goods had been burnt by the rebels in Scotland, or burnt or otherwise destroyed at Preston in Lancashire by the rebels, or his Majesty’s army, shall be fully reimbursed and repaid their losses by the respective exchequers of England and Scotland.”

In the year 1749, the House of Commons granted to the loyal city of Glasgow 10,000l. for that sum extorted from them by the rebels. Com. Journ. vol. 25. p. 959.

In the year 1747, Doctor Swinton petitioned the Commons, for a compensation for sundry houses which had been destroyed in the preceding rebellion at Chester. His petition came down recommended from the throne. It was considered as a petition, in the prayer of which the public honour and justice were concerned, and therefore it was received by the House of Commons, although the time limited for receiving private petitions was expired; and he was fully compensated for his losses, out of the aids granted to the Crown.

When the State found it necessary to the public interest and safety, to cede to France the island of St. Lucia, ample compensation was made to the Duke of Montagu, the proprietor, both of honours and revenues; there being in his case, as in that of the Loyalists, no reservation of his property.

To these we will add one authority more. Judge Blackstone, when treating of the protection due from the Legislature to the subject, in the most decided manner declares, that “so great, moreover, is the regard of the law for private property, that it will not authorise the least violation of it, no, not even for the general good of the whole community. Besides, the public good is in nothing more essentially interested than in the protection of every individual’s private rights, as modelled by the municipal law. In this, and similar cases, the Legislature alone can, and indeed frequently does, interpose and compel the individual to acquiesce. But how does it interpose and compel? Not by stripping the individual of his property in an arbitrary manner, but by giving him a full and ample indemnification and equivalent for the injury thereby sustained.”

From these and many other authorities, it evidently appears, that Parliament has ever held itself bound by the law of the land, to make compensation to the subject for property taken or destroyed by the State, either to avoid some public mischief, or to obtain some public benefit; for property lost through a failure in the State, to afford him the protection due by law, and for property lost in consequence of his faithful exertions to defend the public interest and safety: while there is not one to be found of a contrary tendency or spirit, nor one where the compensation claimed by the Loyalists, has been delayed beyond the session of Parliament in which the application has been made. Indeed the right is so replete with public merit and equity, and the law from which it is derived has been so well understood, that it has never been disputed or doubted. It is, as the most eminent civilian in Great Britain declared, when his opinion was taken upon it, “ATruismwhich admits of no possibility of doubt.”