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. VII.

Of the Doctrine of the Right Honourable Mr. Pitt, applied to the Claim of the Loyalists.

ALTHOUGH, in the preceding pages, we have demonstrated from the laws of civil society—the usage of states—the practice of Parliament, and from the declarations of his Majesty, and the uniform resolutions of both houses of the legislature, the indispensable obligation which Parliament is under to make compensation to the Loyalists adequate to their losses; we will yet further corroborate those arguments by the opinions of the first minister of Great Britain, in a case similar, but of much less public merit and importance; opinions not hastily formed, but established in his enlightened mind, after the fullest deliberation upon the subject, and which therefore, we must conclude, speak the language of law and truth. These opinions are to be found in his memorable speech in February 1787.

The case upon which this speech was made is that of Mr. Hastings. This gentleman, as Governor General of our Indian possessions, was charged with resuming the Jaghires, the property of the Begums of Oude, promising them compensation which he did not make. A motion was made in the House of Commons to impeach him for this act of violence and injustice. In the course of the debate, Mr. Pitt declared, “That there were but two principles which could justify a resumption of these Jaghires. To resume the property of any subject, or of any Prince with whom you are in alliance, it was necessary that either it should be first forfeited by delinquency, or that impending and immediate political danger should authorise the seisure. But in either case justice should be observed. For if you seized them as a punishment for a crime, it should be done with justice. Could the political emergency be proved, it would certainly acquit Mr. Hastings of the criminality. For the necessities of the public safety produced many instances of the justice of possessing private property,provided you give to those you have despoiled an adequate compensation.”

He further contended, that the right in the State to take the property of the subject, or an ally, is founded on the compensation to be made. “For,” says he, “the necessities of the State made it common justice to resume private property, which was always the right of public benefit. When any dangers arose, even to a subject or a prince, self-preservation dictated the lawful possessing of every means to avert the approaching or impending danger. But the criterion of the right was the justice with which it was accompanied.

“Thus, if such had been the state of affairs, as to render it indispensably necessary to resume the Jaghires, for the immediate preservation of our possessions and territories; anadequate compensation should have beenmost sacredlygiven to the dispossessed.

“If these Jaghires occasioned so much disturbance at Fyzabad, as to threaten broils and contentions, that produced such evils to our State as were necessary should be avoided, the resumption of them was morally and politically just, attended with the adequate compensation.”

After contending that no such necessary existed to justify Mr. Hastings in resuming the property of the Begums, he says, “If it had, it would certainly have compelled him to the instantaneous application of the only remedy which offered. As these Jaghires were the supposed or assumed cause of the insurrection, Mr. Hastings should, without delay, being first convinced of the truth. have resumed them, and given the possessors, as before observed, their just right to a compensation.”

Shortly after, he repeats and enforces the same principle of law and justice; and adds, “But admitting the right to the resumption, the guarantee of the compensation should have been inviolable. Instead of this, ‘he asserts,’ the Jaghires were resumed; the compensation guaranteed, and this treaty afterwards violated; and that the good faith of this country, and the law of nations, should have taught Mr. Hastings rather to have preserved and protected, than injured and destroyed the rights of the Begums.”

This act of Mr. Hastings, in resuming the property of the Begums, without adequate compensation, he concludes, with reprobating in the strongest terms, and declares, that he was convinced, “the national character had been debased and degraded, and it was only by an act of national justice it could be restored to its wonted brilliancy, excited by its sacred attachment to honour, justice, and humanity.”

Here we find, that the law, and every principle of justice, asserted in this speech, are the same we have laid down in the preceding pages, and manifestly prove the right of the Loyalists to compensation. The Minister, with much learning and truth, considers the property of the subject, as sacred and inviolable, under the laws of civil society, and the property of an ally, under the laws of nations; and candidly declares, that neither can be deprived of it without “criminality in the despoilers;” but upon two principles, in case of “forfeiture by delinquency, or when the necessities and preservation of the State require it.” And when that necessity demands it, he repeatedly affirms, that the resumption cannot be lawfully made without adequate compensation. This compensation he declares is the “criterion,” the “proviso,” or condition of the right, and that it ought to be most sacredly made to the despoiled, whether they be subjects or allies.

Should it be said that there is a difference between the case, where the property of the subject is “resumed,” and where it has been lost through a want of public protection, and afterwards sacrificed to the public safety: we answer, that this distinction is not founded in law; because the State, by its solemn political engagements, is bound to defend and protect the subject against all foreign as well as domestic injuries; and therefore it cannot do any injury, or suffer it to be done to him, without violating those engagements and the law upon which they are established. Hence it cannot resume, or destroy, or suffer to be taken or destroyed, or cede in a treaty the property of the subject, and thus violate his right to its protection, but when the public benefit or necessities require it. For the right of the state to do all these acts, so contrary to the laws of nature, reason, and justice, so injurious to the individual, and so inconsistent with its most sacred duty, originates in, and is founded on, the law of necessity, which at the same time enjoins the State as the “criterion” and condition of this right, to repair the damages sustained by a breach of its solemn engagements, by making to the sufferer ample compensation. In all these cases, the obligations of the State, and the right of the subject to protection, are equally broken; the injury done, and the loss sustained, are the same, and that security to which he is entitled under the laws of civil society equally destroyed; and of course, equal compensation is due in all.

We have thus reasoned from the doctrines of the Minister, whose candour, love of justice, extraordinary abilities, and firm attachment to the honour of his country, we are at all times ready to acknowledge, not doubting, but that when he shall detach his mind from his other important engagements, and give to the case of the Loyalists full consideration, he will perceive the high obligations under which Parliament remains to do them justice: and how much it is his peculiar duty in the high office he now holds under his Sovereign, to solicit and obtain it for them; and that, “the principles of reason, justice, and humanity* ,” the force of which he has so sensibly felt and exerted in favour of others, will all combine to convince his upright and enlightened mind, of the justice and compensation which is due by law to the Loyalists.

[* ]See the Speech.