Front Page Titles (by Subject) CHAP. IX.: Objections answered. - The Claim of the American Loyalists
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CHAP. IX.: Objections answered. - 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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SHOULD it be objected to the preceding arguments and authorities, “that the property of the Loyalists was confiscated, and in the hands of the American States before the treaty; that Great Britain having used her utmost endeavours to recover it, was obliged to relinquish it; and therefore, that such relinquishing is not to be considered as a cession of it, nor are the Loyalists entitled to the same compensation as if it had been ceded.” To this objection we answer, that it is more specious than just, and without the least foundation in reason. We suspect it has arisen from a superficial examination of the law, in the case where a State has been obliged to relinquish or abandon a part of its territory, “when there has been evident danger of their perishing if they continue together* .” This renders it necessary to enquire what the law is in such case. The authorities all agree, “that a sovereign cannot, even under such circumstances, force his subjects in the province he abandons, to submit to another government.” He cannot annihilate the obligation he is under to protect them, although he is prevented by necessity from doing it at the time, nor dissolve the union between him and his subjects by a transfer of their allegiance to the conqueror, without their consent† . “He can lawfully do no more under the law of necessity, than merely withdraw his forces, and abandon the inhabitants,” who make their election to remain after his forces are withdrawn. For should any of them chuse to leave the territory abandoned, and follow his standard, or to retire to his other dominions, determined to adhere to their allegiance, he cannot, without violating the most sacred and immutable laws of civil society, refuse them the protection due to them before as subjects; nor is there one instance to be found, where any sovereign has ever committed so great a violation of reason, justice, and law.
Indeed the utmost extent and operation of such abandonment is this: it leaves those who, from motives of interest and the impulse of necessity, chuse to remain in the territory abandoned, the right and privilege of taking care of themselves, either by defending it; or, in order to save their property from plunder and to secure their possessions, by submitting to, and making their peace with the conqueror. When this choice is made, in preference to their former allegiance, then, and not till then, are the mutual obligations between them and the Sovereign who has abandoned them, dissolved. Thus the disunion, with all the consequent losses and misfortunes, although effected by necessity, takes place with the consent of both parties. And this disunion is what is called in the books, “a pure misfortune, which must be suffered by the abandoned part* ;” by the people who have chosen to remain, either with design to defend themselves, or to save their estates by submitting to a new Sovereign; a misfortune which no reason, justice, or law can require their former Sovereign to compensate.
Such is the law in a case where the Sovereign has been obliged, through necessity, merely to abandon or relinquish a district, and where the people in it, finding themselves not protected, refuse to follow the distressed standard of their country, from an expectation of doing better. Here they are disengaged from the ties of allegiance, and the Sovereign from his obligation to protect and indemnify them for losses sustained in consequence of such disengagement. But the law is very different where subjects have faithfully fulfilled their political engagements with their Sovereign, and continue to adhere to the fate of their country in such extremity, and have, in consequence of their allegiance, lost their property; or where the State, through necessity, has been obliged, by treaty, formally to give up the property so lost. In these cases, we affirm, that it appears from every author, whether on the politic laws of States in general, or on the fundamental laws of the British constitution in particular, that protection and compensation are due to the subject. For here the mutual obligations of allegiance and protection, which are declared, in every authority on the subject, to be in their nature permanent, perpetual, and inviolable, without the mutual consent of the Sovereign and subject, are not, and cannot be, dissolved; and therefore there is no case to be found in any book, where the compensation has not been adjudged, and accordingly made.
Now this is truly the undisguised case of the Loyalists. They were called upon by his Majesty and the two Houses of Parliament, to defend his authority and their rights, when in imminent danger. His Majesty and those Houses, to draw them forth, entered into the most solemn engagements, that they would protect and indemnify them in their fidelity and zeal. They have stepped forth in support of that authority and those rights, without any other consideration than the sense they entertained of their duty. Many of them have spilt their blood in the cause of their country, and others incurred innumerable difficulties and dangers; and in direct consequence of their fidelity, and a want of the protection due to them by law, have lost their whole fortunes; and moreover, have followed the standard of Great Britain, without a murmur at their distress, through all its dangers and extremities. What a consideration! what a price is here paid to ensure the protection due by law, by the royal faith and the parliamentary engagements solemnly pledged to them for their indemnity!
But “the property of the Loyalists,” says the objector, “was confiscated, and in the hands of the American States before the treaty.” That such an objection should be started by a Briton is strange indeed. Will he not be overwhelmed with shame and confusion, when he considers by what means those confiscations happened? The Loyalists, at the commencement of the rebellion, were in the peaceable possession of their estates, and might have continued so to the end of the contest, had they acquiesced under the measures of the insurgents, who neither disturbed nor intended to disturb them in their persons or possessions. The war was against the authority of the British crown and the rights of Parliament, and not against their lives or their property. Led forth by their confidence in the faith of Majesty, and their reliance on the sacred promises of Parliament, they zealously endeavoured to support and defend those rights. Hence, and hence only, did they incur the rage and vengeance of the insurgents. Hence, and hence only, their property was confiscated and their persons attainted, and many of them put to an ignominious death, through a want of that protection which was due to them by law, and for which the Royal faith and parliamentary declarations were unequivocally and solemnly pledged; and hence, “their property was confiscated, and remained in the hands of the American States at the time of the treaty.” Are these reasons, why they ought not to be compensated for property thus lost? Are such subjects less entitled to compensation than the peaceable and inactive citizen, whose cattle have been destroyed to prevent infection, or whose ships have been destroyed to prevent the plague, or whose goods have been destroyed by rebels and traitors, or ceded in a treaty with the territory? For in these instances, the cases cited from the Journals of Parliament evidently shew, that ample compensation ought to be, and has ever been made. Does not their claim stand upon much higher ground of public merit than any of the cases cited, or than any ever yet brought before any tribunal; and is it not only established on the same law, but on a rock which cannot be shaken, the faith of Majesty, and the honour of both Houses of Parliament united!
But the property of the Loyalists was confiscated and in the hands of the Americans before the treaty, and Great Britain was obliged to relinquish it, but did not cede it. This is a distinction which is truly more a subject of ridicule than serious refutation. It is what the logicians call a distinction without a difference. For whether Great Britain merely abandoned (which seems to be the meaning of the objection, if it means any thing) or ceded the property confiscated to the American States with the territory, it cannot vary the law upon the claim. For we have shewn, that at the time their estates were confiscated, and before the treaty, their right to protection and the obligation which his Majesty and Parliament were under by law, and their repeated promises to afford it, were violated, and their right of course to compensation complete.
But supposing America had been merely abandoned, the British State did not leave the Loyalists at the time any one privilege of abandoned subjects. Many of them had no property to defend, for that had been long before lost through a want of public protection. They were left no choice of submitting and making their peace with the new States; for those States had condemned them to die, and the British government, by acknowledging their sovereign powers, had ratified the unjust sentence.
Besides, this distinction is founded in an assertion which is not true, that “Great Britain has only relinquished or abandoned the confiscated property of the Loyalists, and did not cede it.” Upon examining the facts, it will be found that the British forces remained in the possession of New York, Long Island, and Staten Island, and all the fortifications on the lakes, with more than one half of the territory ceded, long after the treaty; and that in those districts much of the property confiscated remained in the actual possession of the Loyalists at the time it was given up, in pursuance of the treaty* . It is also a fact which can be proved, and what the Minister will candidly confess, that the confiscated property was, by a mutual contract, given up to the United States, as a consideration and satisfaction for, and in discharge of the damages done by the seizures and desolation of the property of the American citizens, alleged by them to have been committed by the British forces, and as a part of the purchase and price of peace. Do these facts shew a single feature of a country merely abandoned? or do they not prove that all the property confiscated has been actually ceded?
When we look into the treaty itself, we find that the words and sense of the parties confirm the same truth. His Majesty “acknowledges” the people of the territory, who were before bound to him by the most sacred obligations of allegiance, to be “free, sovereign, and independent States.” By this acknowledgment, and thus treating with them, he in law pardoned their offences against the Crown, released them from all their political duties to the British State, and confirmed their usurped rights of government over the territory, and with them the acts of attainder and confiscation, and consequently their right to hold the confiscated property under those acts. His Majesty further, for himself, his heirs and “successors, relinquishes all claim to the government, his property and territorial rights of the said States, and every part thereof;” by which his Majesty has manifestly and actually ceded all his right to the government and property, and every right incident to the dominion of the territory; in which it must be confessed is included the confiscated property. For it cannot be contended, that his Majesty, by the word “relinquish,” only meant to “forsake,” and merely “abandon” the government, propriety, and territorial rights of the States. To do this, no treaty, but a mere withdrawing of the British forces, was necessary; and, in that case, the title of the Crown of Great Britain to the government and soil of the colonies, would not have been given up. But, surely, the intent and meaning of his Majesty was to “release, give up, and cede” (as the word relinquish in all treaties imports) “all his claim” to the dominion and sovereign rights of the country, “and of every part thereof.” In this light, we imagine, the United States understood the treaty when they ratified it. Indeed, this is the declared intent of the treaty itself, which is, “to secure to both parties perpetual peace and harmony,” and to exclude “all seeds of discord.” Now, if the word relinquish only means to forsake or abandon, then there is no peace nor harmony secured. The same causes of quarrel remain as before the treaty.
There is no point more clearly settled by the law of nations, than that a mere abandonment of a country, transfers to the conqueror no right either to the dominion or soil. The sovereign, who abandons it, may, at any time after, lawfully resume his right, or make war, on the possessors until it is obtained: so that if his Majesty has not by treaty actually ceded the confiscated property, he may lawfully go to war with the United States for the recovery of it; or he may grant letters of reprisal to the Loyalists for the injuries done them by the States. Such is the mischief in which this absurd distinction would involve both countries!
It is painful to be obliged to answer every trivial objection to so plain a claim. But as we have no hope, however distressing our situation, or just our right, or however long that right has remained undiscussed, of being heard, either by ourselves or counsel, in the high court where our fate must be determined, it is our duty, not to leave any conceivable objection unanswered. It has been said, “That the right of the subject to compensation for property ceded with a district already in the hands of the State to which it is ceded, is not the same as for property ceded with territory in the possession of the State ceding it.” We have searched for this distinction in the laws of nature, which we have shewn to be a part of the laws of England, in the principles of reason and justice, in the fundamental laws or all regular civil societies, and in the particular laws of the British government; and we cannot find it. The laws of nature established by the supreme omnipotence, the principles of reason and justice, and the fundamental laws of all civil societies, where the rights of the subject are secured, are the same. They all tell us, that every man who enters into civil society, gives up his natural independence, and submits his will, his strength, his personal services, even to the risk of his life, together with a right to dispose of his property in cases of public necessity, to the command and direction of the sovereign, to ensure the protection which he wanted in his state of natural independence; that this cession of his natural rights is the high price, the great consideration paid to the sovereign authority of every State for such protection: That this mutual covenant of protection and allegiance is, in its nature, immutable and perpetually binding as long as the society exists: That it cannot be dissolved or impaired, but with the mutual consent of both parties, or by the actual dissolution of the society: That while the Sovereign fulfils his covenant by protecting the subjects, their allegiance is most sacredly due; and while the subjects perform their allegiance, the Sovereign is most sacredly bound to protect them: That if the subject violates this covenant, and acts “contra ligeantiam suam debitam,” he is guilty of high treason, and shall suffer death; and if the Sovereign violates it, by not affording the protection due, he is, é contra, bound to repair the damages sustained by making the subject adequate compensation. And this protection being due from the Sovereign, as the representative of the whole, and of every individual of the society, if he has not money in his exchequer sufficient to repair the damages done through a violation of this covenant, “all are bound to contribute their proportion towards it.”
These truths being clearly settled, where shall we find the difference between the right of a subject who has lost his property by a cession of territory unconquered, and that of a subject whose property has been lost through a want of the protection due by law, and afterwards ceded to the conqueror? There is none such to be found in any book on politic law whatever. They all speak in general terms of the property of subjects “ceded or given up,” and declare compensation to be due for it, without intimating that such a distinction ever existed. “Ubi lex non distinguitur, ibi nos non distinguimur,” is an established maxim in the construction of all laws. If such a difference was ever before thought of, it is strange it does not appear. Besides, the words “cede and give up” are the express words of the books, and the true and radical meaning of them is, with much more propriety, applied to territory conquered, than to that which is in the possession of the sovereign ceding it. For the common and true sense of the terms is to “release, to resign, and to quit claim” to a right to something not in our possession, and therefore they are used in a transfer of the right, and not of the possession. But in the conveyance of property in our possession, it is usual to define it in terms much more significant of the true meaning of our intention. Here we use the words “grant, convey, surrender, deliver,” the possession of the property intended to be conveyed. Such a cession therefore never has been construed to extend to a transfer of the private possessions and properties of the people in the territory; for, say the authors on politic law, the sovereign power, however absolute, is not invested of itself with the right of property, nor consequently with the power of alienation.”
The law is the same in respect to a cession of a territory in the hands of the conqueror. The state to whom it before belonged, may cede its right to the dominion and sovereign power over the territory; but it cannot lawfully transfer a right over the people without their consent; and it is for this reason that every State, when it has ceded a part of its territory to the conqueror, has endeavoured to avoid or lessen the burthen of this compensation by stipulations in the treaty on the behalf of its faithful subjects, whom it has not been able to protect; which bind the conqueror to give up his right over the persons and private fortunes acquired by his conquest, and either to adopt them as subjects with their consent, or to suffer them, after disposing of their property, to return to their former allegiance. But in either case, if dire necessity should compel the sovereign authority to surrender, by the express terms of the treaty, the property of a part of its subjects, together with its own rights; “and to wound a part, that the whole empire may not perish* ;” reason and justice, as well as the obvious principles of the social compact, evidently require that the sacrifice thus made for the public good, and the loss thereby sustained, should be compensated at the public expence; and if great and important advantages are secured by such surrender to the other part of the community, the right of the sufferers to compensation is still more clearly established, for it is become a debt due not only from justice but also from gratitude.
THE Commissioner on the part of Great Britain did propose a restitution of the confiscated property; but the answer made by the American Commissioners was, that they had no power from the several States to restore it; and, if they had, they must insist upon compensation for the desolation and damages committed by the British forces, on the towns, private houses, and properties of the American citizens, contrary to the rules of war, an account of which had been taken by order of Congress. Upon this it was agreed, that no actual stipulation should be made for such restitution; but that it should be left to the pleasure of the States, either to keep the property confiscated as a satisfaction for such desolation and waste, or to restore it: that, however, Congress should recommend to the States to make the restoration; and upon this the peace was made, and the restitution left to the pleasure of the States.
Upon this ground, when the States took into consideration the resolve of Congress recommending the restitution, they refused to make it. The State of New York resolved, that there could be “no reason for restoring property which had been confiscated or forfeited, as no compensation had been offered on the part of Great Britain for the damages sustained by the States, and their citizens, from the desolation aforesaid.” And all the other States have acted upon the same principles. From which it is evident, that the confiscated property of the Loyalists was both implicitly and expressly given up to the States as a compensation for the irregular desolation with which they charged the British army; and as the Minister who made the peace has candidly declared, that “he had no alternative,” but to submit the restitution to the mere recommendation of the Congress, it follows that it was also given up as the price and purchase of the peace.
To support these truths, we here insert the resolutions of the State of New York:
“Resolved, That it appears to this Legislature, that in the progress of the late war, the adherents to the King of Great Britain, instead of being restrained to fair and mitigated hostilities, which are only permitted by the laws of nations, have cruelly massacred, without regard to age or sex, many of our citizens, and wantonly desolated and laid waste a great part of this State by burning, not only single houses, and other buildings, but even whole towns and villages, and in enterprises which had nothing but vengeance for their object.
“And that, in consequence of such unwarrantable operations, great numbers of the citizens of this State have, from affluent circumstances, been reduced to poverty and distress.
“Resolved, That it appears to this Legislature, that divers of the inhabitants of this State, have continued to adhere to the King of Great Britain, after these States were declared free and independent, and persevered in aiding the said King, his fleets, and armies, to subjugate the United States to bondage.
“Resolved, That as on the one hand, the rules of justice do not require, so on the other, the public tranquillity will not permit, that such adherents who have been attainted, should be restored to the rights of citizens.
“And that there can be no reason for restoring property which has been confiscated or forfeited, the more especially, as no compensation is offered on the part of the said King, and his adherents, for the damages sustained by this State and its citizens, from the desolation aforesaid.”
The amount of the sum claimed by the United States, for the damages done by the British forces, far surpassed that now claimed by the Loyalists. And as Great Britain must have paid for those damages, or have continued the war, had she not given up the property confiscated; it is evident, that she has disposed of it for more than an adequate consideration, and is a considerable gainer by the bargain.
[* ]Burlamaqui, p. iii. c. 5. s. 52.
[† ]Ibid. s. 53.
[* ]Burlamaqui, p. iii. c. 5. § 53.
[* ]Georgia had not only been recovered out of the hands of the insurgents in 1779, but the province was put at the peace of the King by his Majesty’s Commissioners, and the King’s civil government restored, and all the loyal inhabitants required by proclamation to return to their settlements, and an assembly called, and actually subsisting, and all the civil officers in the exercise of their functions, when orders came in 1782 to evacuate the country, and deliver it up to the rebels, which was done accordingly without any stipulation in favour of the attainted Loyalists, or their confiscated properties, although the force of the rebels in that country was so inconsiderable, that the Loyalists offered to the King’s General to preserve the province for his Majesty, if he would leave them a single regiment of foot and the Georgia Rangers to assist them.
[* ]Vid. Lord Shelburne’s Speech.