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The Claim of the American Loyalists reviewed and maintained upon incontrovertible Principles of Law and Justice (London: G. and T. Wilkie, 1788).
Having lost his valuable estate in Pennsylvania during the American Revolution, the Loyalist Galloway spent the rest of his years in exile in Britain lobbying the government for compensation and writing books like this one to justifying his position.
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IF any apology can be necessary for the following review, we have many to offer, any one of which, we trust, will satisfy the ingenuous enquirer.
The claim of the American Loyalists, upon a candid examination, will appear to stand upon the highest ground of national honour and national justice. Their pleas of merit are, a faithful obedience to his Majesty’s commands,—a firm confidence in his Royal Faith—a perfect reliance on the assurances of both Houses of the British Legislature; and a faithful discharge of the first of all political duties, by their undaunted exertions in the support and defence of the authority of the Crown, and the rights of Parliament; in consequence of which, their fortunes have been sacrificed to the national safety. Their pleas of right are the unchangeable principles of reason and justice—the fundamental laws of the British constitution—the sacred obligations, by which the Sovereign Authority is bound to indemnify its faithful subjects—the faith of their gracious sovereign, and the solemn promises of Parliament pledged to them for that indemnity.
It must be confessed, that in a claim established upon such principles, the dictates of reason and justice forbid all delay; and yet (from what causes we presume not to suggest), five years have elapsed since the right was perfectly vested, and since it was clearly acknowledged by the Ministers, who devoted their fortunes to the national necessities; and by many others of the most eminent and learned speakers of both Houses of Parliament. Their Sovereign has been graciously pleased, long since, to recommend it to the consideration of Parliament. A Bill has been passed to enquire into their losses, and reports have been made, from time to time, of the value of those losses to the Lords of his Majesty’s Treasury, which have been laid before the House of Commons; notwithstanding which, the claimants still remain altogether in the dark, respecting the issue of their claim. Their humble prayers for justice have not been wanting. Their petitions to Parliament have been repeatedly presented, and, contrary to many, and, as we believe, to all precedents in cases of much less public merit, have been ordered, session after session, to lie on the table. Their claim of justice has not been fulfilled, discussed, or even examined. Hence it is, that their minds, before too much oppressed by their misfortunes, have remained in the most painful and distressing uncertainty, suspense, and anxiety. Many of them, who might have been made happy by the sums reported to be due to them, are at this moment labouring under all the distresses incident to poverty and want. Numbers in Nova Scotia have been supported by the charitable donations of their friends , the subjects of the American States. Many are labouring under the want of means to subsist themselves on their uncultivated farms; many, through the prospect of want, have died of broken hearts; and others have been driven, by their extreme distress, into insanity, and from insanity to suicide, leaving their helpless widows and orphans to prolong their miserable existence on the cold charity of others.
In stating these melancholy truths, and in publishing the following review, we trust no person will think that we can mean to give offence. Our design is simply to revive a claim of the first public merit which seemed to be sinking into oblivion, and to give information to those on whose liberality and justice we most sincerely rely; and who, we are firmly persuaded, when they shall candidly and maturely consider the facts upon which their claim is founded, will make that compensation which is due to them as British subjects by the faith of Majesty, and the honour of Parliament, and the fundamental laws of the British constitution.
IN the year 1764, several tumults and insurrections against the authority of the Crown and the rights of Parliament took place in America. The houses and other property of divers persons, who had discharged their duty in attempting to carry that authority and those rights into execution, were destroyed, whereupon both Houses
Resolved, “That an humble Address be presented to his Majesty, to desire that he would be graciously pleased to give instructions to the Governors of the several provinces where those tumults and insurrections have happened, that they should, in his Majesty’s name, require the Assemblies of the said provinces to makea proper recompenceto those who have suffered in their persons or properties, in consequence of the said tumults and insurrections; and to assure his Majesty that they will, upon this and all occasions, support the lawful authority of the Crown, and the rights of Parliament.”
And they further
Resolved, “That all his Majesty’s subjects residing in the said colonies, who have manifested their desire to comply with, or to assist in carrying into execution the Act for laying a duty on stamps, or any other Act of Parliament, in the British Colonies in North America, have acted as dutiful and loyal subjects, &c. and are therefore entitled to, and will assuredly have the favour andprotection of this House.”
In the year 1767, the insurrections in America encreasing, the House of Commons took into their consideration the state of North America; and after full deliberation, came, among others, to the following resolves, viz.
Resolved, “That tumults and insurrections of the most dangerous nature have been raised and carried on in the North American colonies, in open defiance of the powers and dignity of his Majesty’s government, and in manifest violation of the legislative authority of this kingdom.”
Resolved, “That such persons, who, on account of the desire which 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 in which such injuries or damages were sustained.”
Resolved, “That all his Majesty’s subjects residing in the said colonies, who have manifested their desire to comply with, or to assist in carrying into execution any Acts of the Legislature, relating to the said colonies in North America, have acted as dutiful and loyal subjects, and are therefore entitled to, and will assuredly have theprotectionof the House of Commons ofGreat Britain.”
The same House of Commons, impressed not only with a proper sense of the national justice which the Loyalists contend for, but with the policy and necessity of holding out distinguishing rewards, and marks of the national favour and approbation to those who had and should distinguish themselves by their zeal and fidelity,
Resolved, “That an humble Address be presented to his Majesty, that he will be graciously pleased to confer some marks of hisroyal favour on those Governors and Officers in the several colonies, who distinguished themselves by their zeal and fidelity in supporting the dignity of the Crown, the just rights of Parliament, and the supreme authority of Great Britain over the colonies, during the late disturbances in America.”
In the year 1775 the preceding tumults and insurrections against the authority of the Crown and the rights of Parliament, encreased to “open and avowed rebellion.” The leaders assumed the rights of independent legislation, of judicial enquiry, sentence, and execution. The prevalence of the power and violence of the insurgents was such, that, in a little time, those who appeared desirous to support the authority of the Crown and rights of Parliament, or refused to unite with the insurgents, were disarmed, tarred, feathered, and inhumanly treated. The King’s forts were dismantled. The Governors and the Officers of the Crown, who had continued faithful to their trust, together with all others who had opposed the sedition, were reduced to the alternative of escaping from the tyranny, or of being imprisoned in loathsome dungeons or polluted mines, in which situations numbers have perished. Whereupon his Majesty laid this state of the colonies before the two Houses of Parliament, who concurred in assuring his Majesty, “That it was their fixed resolution, at the hazard of their lives and properties, to stand by his Majesty, against all rebellious attempts, in maintenance of his just rights, and of the two Houses of Parliament.”—And the aids were accordingly granted for that purpose.
In pursuance of these spirited measures of the Parliament, his Majesty, on the 23d of August in the same year, published a proclamation at St. James’s, in which, after reciting that an “open and avowed rebellion existed in America,” as the reason of the proclamation, his Majesty adds, “To the end, therefore, that none of our subjects may neglect or violate their duty through ignorance thereof, or through any doubt of the protection which thelawwill afford to their loyalty and zeal, We have thought fit, by the advice of our Privy Council, to issue this proclamation, hereby declaring, that not only all our Officers, civil and military, are obliged to exert their utmost endeavours to suppress the rebellion, but that all the subjects of our realm, and the dominions thereunto belonging, are bound by law to be aiding and assisting in the suppression of the rebellion, and to disclose and make known all traiterous conspiracies and attempts against our Crown and dignity. And we do accordingly strictly charge and command all our Officers, civil and military, and all other our obedient and loyal subjects, to use their utmost endeavours to withstand and suppress such rebellion,” &c.
In the same year General Gage, Commander in Chief of the British forces in America, issued his proclamation, declaring, “that all those who should protect, assist, supply, conceal, or correspond with the insurgents, should be treated as rebels and traitors.”
The usurped legislatures of the several colonies, in their turn, passed laws, declaring, “That all persons who should aid, assist, or correspond with the subjects of Great Britain, should be adjudged guilty of high treason against their authorities.” And under these laws they attainted the persons, and confiscated the property, of all who adhered to their allegiance, or gave the least aid or assistance towards supporting “the authority of the Crown, or rights of Parliament.”
The critical and dangerous predicament in which these transactions placed the Loyalists, is not easily described. General Burgoyne, who was on the spot, has attempted to give some idea of the dreadful scene, which he declares to consist of “arbitrary imprisonment, confiscation of property, persecution and torture, unprecedented in theInquisition of Rome. These are inflicted,” continues the General, “by Assemblies and Committees, who dare to style themselves friends to liberty, upon the most faithful subjects, without distinction of age or sex, for the sole crime, often for the sole suspicion, of having adhered in principle to the government under which they were born, and to which, by every tie, human and divine, they owed allegiance.”
Notwithstanding this critical and dreadful situation into which the Loyalists were drawn by their confidence in his Majesty’s proclamation, and the assurances of Parliament; and notwithstanding many had suffered death, and numbers were languishing in dungeons and mines; the Commissioners of his Majesty and Parliament, and Commanders in Chief acting under his Majesty’s authority, did not cease to call on those who survived to adhere to their allegiance, and for their assistance.
In the year 1776, Lord Viscount Howe published a proclamation, and as a farther and more especial encouragement expressly declared, “That due consideration should be had to the meritorious services of all persons who should aid and assist in restoring the public tranquillity, and that every suitable encouragement should be given for promoting such measures as should be conducive to the establishment of civil government and peace.”
In the same year, two other proclamations were issued by Lord and General Howe, and a declaration by the latter in the year following, calling on the people to discharge their duties as subjects.
In the year 1778, his Majesty’s Commissioners acting under the authority of Parliament, in their manifesto and letter to Henry Lawrens, President of Congress, which they afterwards published throughout America, declare, that a “regard must be paid to the many who, from affection to Great Britain, have exposed themselves to suffer in this contest, and to whom Great Britain owes support atevery expence of blood and treasure.”
In the same year the same Commissioners published their manifesto and proclamation, in which they call on the people of America in general, “to vie with each other in eager and cordial endeavours to secure their own peace, and to promote and establish the prosperity of their country, and the general weal of the empire;” and in particular, apply to and command “all Officers, civil and military, and all other his Majesty’s loving subjects whatever, to be aiding and assisting unto them in the execution of their manifesto and proclamation, and all matters therein contained.”
On the 23d of May 1780, Sir Henry Clinton issued a proclamation, wherein, in his Majesty’s name, he called on and commanded all persons whatsoever, to be aiding and assisting to his forces, whenever they should be required, in order to extirpate the rebellion; and for the encouragement of the King’s faithful and peaceable subjects, he assured them, “that they should meet with effectual countenance, protection, and support;” and the same requisition and assurances were with equal solemnity repeated in a subsequent proclamation published by Sir Henry Clinton and Vice-Admiral Arbuthnot, as his Majesty’s Commissioners to restore peace and good government in the several colonies in rebellion, on the first of June following.
In the year 1778, the Congress, desirous of weakening the British power, and of gaining over the influence and assistance of the Loyalists, by a resolve, recommended to the several States to repeal the sanguinary laws made against them, and to restore their property which had been confiscated; and overtures were made by General Washington to take them under his protection; but although they had reason to apprehend, from the evacuation of Philadelphia by order of the British government, the subsequent movement of the troops from America to the West Indies, and the numbers in both Houses of Parliament against carrying on the war in the colonies, that they were about to be deserted by the British arms; yet, with this prospect of distress, which no language can describe, they considered their allegiance to his Majesty, and their connection with their fellow-subjects, as sacred and inviolable; the infallible consequence of which was, a more general attainder of their lives, and a confiscation of their fortunes; although, had they then withdrawn from their allegiance, they might have obtained a repeal of the laws attaining their lives, and been restored to their property. Under these circumstances, painful as they were, they never complained. Their loyalty and zeal in the cause of the State remained undiminished, or rather kept pace with their encreasing distress. All the tender ties of the parent, husband, and son, were overcome by their public virtue; nor did they desert the sinking cause of their country until she deserted it herself. Thus led forth from the rest of their fellow-subjects, by their duty to the State, their obedience to his Majesty’s command, and the assurances of both Houses of Parliament, they firmly confided in the royal faith, and the honour and justice of Parliament, that they would at all events afford them the protection due to them by law, and so solemnly promised.
In the year 1781, the Loyalists, being alarmed at the distinction made in the articles of capitulation of York, in Virginia, between British subjects and the Loyalists who had rendered themselves amenable to the sanguinary laws of the New States, his Excellency William Franklin, Esq. Governor of the province of New Jersey, wrote to Lord George Germaine, then Secretary for the American department, on the subject. In answer to which letter, his Lordship wrote to the Governor on the 2d of January 1782, That “the alarm taken by the loyal Refugees at the fifth article of Lord Cornwallis’s capitulation is not to be wondered at. The King’s anxiety to remove the fears, and restore the confidence, of those zealous and meritorious subjects, has induced his Majesty to direct me further to express to Sir Henry Clinton (then Commander in Chief of all the British Forces in America) his royal pleasure, that he should, in his Majesty’s name, give them the fullest assurances of the continuance of hisaffection and regard for their happiness, and that, in all events, they may rely upon the utmost attention being shewn to their safety and welfare.”
At length, in the year 1782, a negociation for peace was opened at Paris between the contending parties. Here it will not be denied that the Loyalists, after such strong assurances of protection by his Majesty and Parliament, had good right to expect an article would be obtained for annulling the sanguinary laws which attainted their persons and confiscated their property, and that, according to all usage on similar occasions, it would be restored to them. But in this they found themselves fatally mistaken. The American Commissioners declared they had no authority from the States to make it; and besides, if they had the authority, and the restitution was insisted on, they would also insist that Great Britain should pay for all the damages done, and property taken, by the British armies during the war, which would amount to much more than the confiscated property . The Minister, on the part of Great Britain, considering the state of the nation, the enormous expence of carrying on the war, and the necessity the Public was under of obtaining peace, gave up the point in dispute, and ceded the property of the Loyalists, as a recompence and satisfaction for those damages, and as the price and purchase of peace for the empire. He unconditionally confirmed the independent sovereignties of the usurpation, and with them the sanguinary laws by which the persons of the Loyalists were attainted and their property confiscated. This treaty was afterwards ratified by his Majesty, and confirmed by both Houses of Parliament.
Such is the unexaggerated state of the facts which make up the claim of the American Loyalists. It remains to be examined, whether those who are entrusted with the sovereign authority of the British Government, are not under the most sacred obligations to protect the subject in his person and property, in all events, while he performs the duties of allegiance and fulfils the laws of the land? Whether, in the constitution of the British state, there is no law which entitles the subject to indemnity for property lost in consequence of his fidelity to the Government, or through the want of the protection due to them by law? Whether the sovereign authority may lawfully cede, in a treaty, the property of the subject without such indemnity? And whether the rights and property of the subject are so extremely precarious, and the powers of the sovereign authority so perfectly despotic, that it is authorised by law to dispose of his property, while he fulfils the duties of a faithful citizen, without his consent, on any account or to any purpose whatever,without making a just compensation?
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.
THE Sovereigns of Europe, well understanding the obligation they are under, to protect the property of the subject in all events, and in the last extreme, have not failed to do it whenever it has been possible in every pacification. To this end, they have insisted on, and always obtained, a stipulation, that the individuals of the district ceded should be restored to their property, if taken from them; if not, that they might dispose of it to the best advantage, and return with the proceeds to the society of which they were subjects .—This usage has been adopted for many centuries, in order to save the expence of making the compensation due, which otherwise the States could not avoid, without violating the sacred and essential laws of their respective societies.
In the civil war of the fifteenth century, which happened in the dominions of Spain, and ended in the independence of Holland, this principle of national justice was fulfilled. The war had continued near half a century. The attainders and proscriptions were numerous; the enmity of the parties during the war was violent, and yet the sovereign parties to the pacification, conscious of their duty to obtain all possible protection for their subjects who had suffered by the war, expressly stipulated, “That all real estates which had been seized, exposed to sale, or proscribed on account of the war, should be restored to their former owners; and that for all goods seized and sold by the public officers, the owners should have return or receive (a perpetual annuity of) six and one quarter yearly, for every hundred pounds.”
In the Treaty of Utrecht, care was taken by Great Britain to have the honours and domain of Chattelherault restored to the family of Hamilton, and the honours and domain of Aubigne to the family of Richmond.
In the definitive Treaty between the Emperor and the States General, the city and castle of Dalheim, and other towns and territories, were ceded to the Emperor, and other towns and territories were ceded by the Emperor to the States of Holland. But the high contracting parties, well knowing that they could have no right to sacrifice the interest of individuals to the emolument of society, without ample indemnification, agreed that the officers and others on duty in the country of Dalheim, should have pensions equal to their salaries at the charge of the country—and the Mayor or Greffier of the High Court of Dalheim, as also of the Lordships ceded to his Imperial Majesty, who were not continued in their employments, should receive a reasonable compensation, or have the liberty of selling their places under the approbation of the Government of the Netherlands.
At the termination of the war in 1763, when the King of France ceded the province of Canada to Great Britain, he was so sensible of the protection due to his subjects, that it was insisted on, and it was accordingly agreed by the Treaty, that the Canadians should retain their property, and that such as did not chuse to become the subjects of Great Britain, but wished to return to their former allegiance, should have a right to dispose of it to the best advantage, and to transport its produce unmolested to France.
At the same time the like stipulation was made by the French Monarch in the cession of New Orleans to Spain.
By the same Treaty, in the cession of the Floridas to Great Britain, the same stipulation was obtained by the King of Spain, in behalf of his subjects.
Upon this occasion the conduct of the Spanish Monarch is an illustrious instance of royal attention to the laws of civil society, which regard the protection and security of the subject: for after the surrender of the territory, finding that the English settlers would give little or nothing for the property of his subjects reserved by the Treaty, and that of course they were ruined by his own act, the act of cession, and therefore that he had not afforded them the protection due by the fundamental laws of society, he ordered them to retire to his own dominions, and on their arrival gave to every officer, civil and military, salaries equal to those they enjoyed before the Treaty. He further made them compensation for the property they had lost; and to the common labourer, his wife and children, even to the infant at the breast, he allowed pensions for their support. These pensions, being in their nature perpetual, would have been yet continued, had not this Monarch obtained, by the last treaty of Paris, the Floridas from Great Britain. Upon this event the Spaniards, in their turn, refused to purchase of the British settlers, and in manner compelled them to leave their property, which they had greatly improved. His Catholic Majesty, by a late proclamation, has generously restored these improved estates to his subjects, the former owners, their children and grand-children. Thus the wings of the Sovereign hovered over his subjects, and protected them in all their distress. He felt the high obligation he was under to do it. He considered the value of a number of subjects to the society over which he presided. He saw the force with which this example of sovereign justice would secure the confidence of his people, and bind their fidelity to him on all future occasions. Nor did he for a moment put the sum, though large, he was obliged to draw from his public treasury, in competition with the public benefits which would be derived from it.
Such has been the usage of States, whenever a cession of territory, and with it the property of the subject, has been found necessary to the common safety. There was no such reservation or restoration of the property of the Loyalists, no indemnity whatever obtained; and had there been nothing mentioned respecting them in the treaty, it would have been more to the honour of the British government, than that humiliating stipulation, by which it was agreed, that the Loyalists should have “the liberty to go to the United States, and there to remain twelve months unmolested in their endeavours to obtain restitution, and that the Congress should recommend to the States, to restore their estates, they refunding the bona fide price which the purchaser may have paid.”
Here the British State, which was bound to obtain a restitution of their property, if it could possibly be done, procured “a liberty” for them to solicit for it. They were sent by the State which had granted their property for a valuable consideration, to ask it of those whose right to hold it the State itself had solemnly confirmed. They were sent by the State, which they had faithfully served, and which was bound to protect them, to seek for that protection from States to which they were aliens, whose existence they had fought to prevent, and who, from a principle of self-preservation, were naturally led to refuse it. And they were sent by the State, which had deprived them of their fortunes, and made them bankrupts indeed, to bargain and pay in ready money for those fortunes which it had appropriated to its own emolument. For the stipulated condition of the restitution, supposing it to be made, was, “refunding the bona side price, which the purchaser of the state had paid for it;” and this extraordinary boon was to be humbly solicited for, of their implacable enemies, without the least hope of success, and without any possibility of deriving any advantage from it, had it been obtained.
The advantage which was so repeatedly and sanguinely described, and expected from those recommendations, has, however, been long since fully essayed. A number of Loyalists have gone to the United States to obtain restitution of their property, under the recommendations of Congress; and the effect has been what the Loyalists, and many Members of Parliament, in their debates on the peace, foretold. Instead of restoring them to their property, the American States have not only treated the solicitations for it with insult and contempt, but have imprisoned the persons of the claimants, and afterwards banished them under the pain of death.
As to the great body of Loyalists, who were not within the districts in the possession of his Majesty’s arms, and who had equally demonstrated their fidelity and zeal in support of the rights of Parliament, and rendered services equally important, there was no stipulation whatever made in their behalf. They were not even mentioned in the treaty; they therefore could have nothing to expect from the recommendations of the Congress or from any other quarter whatever, but from the honour and justice of hisMajesty and Parliament.
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.
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.”
IT is not to be presumed that a great national council will be of contrary opinions at different times, respecting a topic of national justice. The principles of justice, which are immutable, and the same yesterday, to-day, and for ever, are so deeply stamped by Omnipotent wisdom in the consciences of men, that they cannot be mistaken. No man, whose intellectual powers were not impaired, or whose reason was not perverted, ever yet doubted of the obligation he was under to make reparation for injuries done to, or damages suffered by, another, through a violation of his solemn engagements. Nor is an instance to be found in the annals of Parliament, where it was ever denied or disputed that the sovereign authority of Great Britain was bound, by law, to make compensation for losses sustained by its faithful subjects, through a breach of its sacred obligation to defend and protect their persons and properties. Hence we shall find that the Members of the two Houses of Parliament, who spoke in the debate on the treaty of peace, have fully confirmed the declarations and solemn decisions of the two Houses of Parliament in 1764 and 1767, and of his Majesty in council in 1775, on the right of the Loyalists to compensation for losses sustained in consequence of their fidelity to his Majesty, and their attachment to the British government.
To prove this, we here give extracts from such parts of the speeches of the learned Members of both Houses as relate to the Case of the Loyalists.
Mr. Wilberforce. “When he considered the Case of the Loyalists, he confessed he there felt himself conquered; there he saw his country humiliated; he saw her at the feet of America! Still he was induced to believe, that Congress would religiously comply with the article, and that the Loyalists would obtain redress from America. Should they not, this country was bound to afford itthem. They must becompensated; Ministers, he was persuaded, meant to keep the faith of the nation with them.”
Lord North. “And now let me, Sir, pause on a part of the treaty which awakens human sensibility in a very irresistible and lamentable degree. I cannot but lament the fate of those unhappy men, who, I conceive, were in general objects of our gratitude and protection. The Loyalists, from their attachments, surely had some claim on our affection. But what were not the claims of those who, in conformity to their allegiance, their cheerfulobedience to the voice of Parliament, their confidence in the proclamation of our Generals, invited under every assurance of military, parliamentary, political and affectionateprotection, espoused, with the hazard of their lives, and the forfeiture of their properties, the cause of Great Britain? I cannot but feel for men thus sacrificed for their bravery and principles: men who have sacrificed all the dearest possessions of the human heart. They have exposed their lives, endured an age of hardships, deserted their interests, forfeited their possessions, lost their connections, and ruined their families, in ourcause. Could not all this waste of human enjoyment excite one desire of protecting them from that state of misery with which the implacable resentment of the States has desired to punish their loyalty to their Sovereign and their attachment to their mother-country? Had we not espoused their cause from a principle of affection and gratitude, we should, at least, have protected them, to have preserved our own honour. If not tender of their feelings, we should have been tender of our own character. Never was the honour, the principles, the policy of a nation, so grossly abused as in the desertion of those men, who are now exposed to every punishment that desertion and poverty can inflict, because they were not rebels.”
Lord Mulgrave. “The article respecting the Loyalists, he said, he never could regard but as a lasting monument of national disgrace. Nor was this article, in his opinion, more reproachful and derogatory to the honour and gratitude of Great Britain than it appeared to be wanton and unnecessary. The Honourable Gentleman who made the motion had asked, if those Gentlemen, who thought the present peace not sufficiently advantageous to Great Britain, considering her circumstances, would consent to pay the amount of expence another campaign would have put us to, for the degree of advantage they might think we had a right to expect? In answer to this, he declared for one, he had rather, large as the sum in question was, have had it stipulated in the treaty, that Great Britain should apply it to making good the losses of the Loyalists, than that they should have been so shamefully deserted, and the national honour so pointedly disgraced as it was by the fifth article of the treaty with the United States.”
Mr. Secretary Townshend, now Lord Sydney. “He was ready to admit, that many of the Loyalists had the strongest claims upon the country; and he trusted, should the recommendation of Congress to the American States prove unsuccessful, which he flattered himself would not be the case, this country would feel itself bound in honour to make themfull compensationfor their losses.”
Mr. Burke. “At any rate, it must be agreed on all hands, that a vast number of the Loyalists had been deluded by this country, and had risqued every thing in our cause; to such men the nationowedprotection, and its honour was pledged for their securityat all hazards.”
Lord Advocate. “With regard to the Loyalists, they merited every possible effort on the part of this country.”
Mr. Sheridan “execrated the treatment of those unfortunate men, who, without the least notice taken of their civil and religious rights, were handed over as subjects to a power that would not fail to take vengeance on them for their zeal and attachment to the religion and government of this country. This was an instance of British degradation, not inferior to the unmanly petitions of government to Congress for the wretched Loyalists. Great Britain at the feet of Congress suing in vain, was not a humiliation or a stigma, greater than the infamy of consigning over the loyal inhabitants of Florida, as we had done, without any conditions whatsoever.”
Mr. Lee. “With respect to the cession of territory, it was great and extensive in every quarter of the world. Europe, Asia, Africa, and America, beheld the dismemberment and diminution of the British empire. But this, alarming and calamitous as it was, was nothing when put in competition with another of the crimes of the present peace; the cession of men into the hands of their enemies, and delivering over to confiscation, tyranny, resentment, and oppression, the unhappy men whotrusted to our fair promises and deceitful words.”
The Honourable Mr. Norton. “Mr. Norton added, that under all the circumstances, he was willing to approve of the two former (the European treaties), but on account of the article relating to the Loyalists, he felt it impossible to give his assent to the latter.”
Sir Peter Burrell. “The fate of the Loyalists claimed the compassion of every human breast; these helpless, forlorn men, abandoned by the ministers of a people on whose justice,gratitude, and humanity, they had the best-founded claims, were left at the mercy of a Congress highly irritated against them. What then could they expect from such an assembly? Why truly, nothing; and therefore he might fairly say, that nothing had been obtained for them by this country. If nothing else was wanting, was not this enough to damn a peace, and render it infamous in the eyes of all honest men? He spoke not from party zeal, but as an independent country gentleman, who, unconnected with party,expressed theemotionsof hisheart,and gave vent to his honest indignation.”
Sir Wilbraham Bootle. “There was one part of it (the treaty) at which his heart bled; the article relative to the Loyalists. Being a man himself, he could not but feel for men so cruelly abandoned to the malice of their enemies. It was scandalous! it was disgraceful! Such an article as that ought scarcely on any condition to have been admitted on our part. They had fought for us, and run every hazard to assist our cause; and when it most behoved us to afford themprotection,we deserted them.”
Mr. Macdonald. “He declared, that he forbore to dwell upon the case of the Loyalists, as an assembly of human beings could scarcely trust their judgments when so powerful an attack was made upon their feelings. If they had hearts and nerves they must necessarily overwhelm their understandings. He turned his eyes therefore from that subject, by a kind of natural impulse, as from a corpse or a grave. There was, however, a chance held out by America of restoring some of those meritorious men to the very natale solum on which they had been born and bred. A very bad chance he feared; yet they ought to have the benefit of that chance, such as it was. This a parliamentary declaration might frustrate. If that chance fails, said he, tax me to the teeth,and I will cheerfully stint myself to contribute to their relief or to make up any deficiency.”
Lord Walsingham “assured their Lordships, that the noble Earl (Carlisle) had forcibly aroused his feelings, and he could neither think nor speak of the dishonour of our treatment of those deserving men with patience. Their claim upon us was self-evident; they had been invited to join us by our own acts; it was a parliamentary war, and therefore it was the more incumbent on the legislature to protect them. The Crown had no separate interest in the war; the addresses to the King from every part of the country proved, that the people of England considered the war as necessary, since its object was the preservation of our just dominion. Parliament should be consistent. He begged their Lordships to look at the resolutions of Parliament in 1766, and see by them, if, in order to be consistent, they ought not to have observed a different conduct in regard to the Loyalists.”
Lord Hawke “denied that the Loyalists had been abandoned; and after paying them every proper compliment said, that he should support no minister who would countenance such a measure. In America, said he, Congress had engaged to recommend their cause to the legislatures of the country. He flattered himself that recommendation would be attended with success; but, said he, state the case that it will not, the liberality of Great Britain is still open to them; ministers had pledged themselves to indemnify them, not only in the address now moved for, but even in the last address, and in the Speech from the Throne.”
Lord Viscount Townshend. “To desert men who had constantly adhered to loyalty and attachment, was a circumstance of such cruelty as had never before been heard of.”
Lord Stormont. “These were men whom Britain was bound in justice and honour,gratitude and affection, and every tie, to provide for and protect. Yet, alas for England as well as them, they were made a part of the price of peace. Those who were the best friends of Britain were, eo nomine, on that very account, excepted from the indulgence of Congress. Britain connives at the bloody sacrifice, and seeks for a shameful retreat at the expence of her most valiant and faithful sons! How different was this from the conduct of Spain to the Loyalists in the Netherlands, in the reign of Philip III. on occasion of the famous truce in 1609, and also in the peace of Munster. Their effects and estates were either restored, or they were paid interest for them at the rate of six and 1-4th per cent. on the purchase money. A general act of indemnity was passed, without exception of place or person.” Lord Stormont also touched on the case of the Catalonians, who revolted from Spain, and when they put themselves under the protection of Britain. In both cases their privileges, lives, and properties, were preserved to them. Even Cardinal Mazarin, so artful, so shuffling, and fallacious; and I am sure, says he, I mean not the most distant allusion to any of his Majesty’s ministers (for the Parliament of Paris determined, that to call any person a Mazarin was a reproach to him, and that an action would lie); even he, though so little scrupulous on most occasions, deemed it sound and wise policy to observe good faith with the Catalonians. He negotiated the peace of the Pyrenees himself, and he took care that an act of indemnity should be published in their favour, on the same day in which a proclamation was issued reclaiming their obedience. History, experience, furnish no example of such base dereliction.”
Lord Sackville. “In regard to the abandonment of the Loyalists, it was a thing of so atrocious a kind, that if it had not been already painted in all its horrid colours, he should have attempted the ungracious task; but never should have been able to describe the cruelty in language as strong and expressive as were his feelings. The King’s ministers had weakly imagined, that the recommendation of the Congress was a sufficient security for these unhappy men. For his own part, so far from believing that this would be sufficient, or any thing like sufficient for their protection, he was of a direct contrary opinion; and, if they entertained any notions of this sort, he would put an end to their idle hopes at once, by reading from a paper in his pocket, a resolution which the Assembly of Virginia had come to, so late as on the 17th of December last.”
Having read the resolution, his Lordship demanded “what ministers had to say now for this boasted recommendation for which they had stipulated with Congress? Could they say, that the unhappy men who had fought and bled for this country, who had given up their all, and (a pang the more grievous to minds of feeling) the all of their little families; could ministers say, that these men who had said and done and suffered all that was in the power of human nature for our cause, ought not to have had a better security than the present, from scorn, insolence, and ruin? A peace founded on such a sacrifice as this, must be accursed in the sight of God and man.”
Lord Loughborough said, “That the 5th article of the treaty has excited a general and just indignation. For what purpose could it have been inserted? Those whom it pretends to favour receive no benefit from it; for what is the purport of a recommendation? but to those the most entitled to our regard, the brave and unhappy men who have not only given up their property, but exposed their lives in our cause, the distinction admitted to their prejudice is cruel and injurious indeed. In ancient or in modern history there cannot be found an instance of so shameful a desertion of men who had sacrificed all to their duty, and to their reliance upon ourfaith. There is even an horrible refinement in the cruelty of the articles: they are told that one year is allowed them to solicit from the lenity of their persecutors that mercy which their friends neglected to secure; to beg their bread of those by whom they have been stripped of their all; to kiss the hands that have been dipt in the blood of their parents, and to obtain, if they can, leave to repurchase what they have no money to pay for.”
Lord Shelburne. “But there remains somewhat in these provisional articles still to be considered, which I have never reflected on without feelings as pungent as any which the warmest admirers of the virtues of the Loyalists can possibly have experienced; I mean the unhappy necessity of our affairs, which induced the extremity of submitting the fate of the property of these brave and worthy men to the discretion of their enemies. I have but one answer to give the House; it is the answer I gave my own bleeding heart. A part must be wounded, that the whole of the empire may not perish. If better terms could be had, think you, my Lords, that I would not have embraced them? I had but the alternative either to accept the terms, said Congress, of our recommendation to the States in favour of the Colonists, or continue the war. But say the worst; and that, after all, this inestimable set of men are not received and cherished in the bosom of their own country; is England so tost to gratitude, and all the feelings of humanity, as not to afford them an asylum? Who can be so base as to think she will refuse it to them? Surely it cannot be that noble-minded man, who would plunge his country again knee-deep in blood, and saddle it with an expence of twenty millions for the purpose of restoring them. Without one drop of blood spilt, and without one fifth of the expence of one year’s campaign, happiness and ease can be given the Loyalists in as ample a manner as these blessings were ever in their enjoyment; therefore let the outcry cease on this head.”
Lord Chancellor. “As to the Loyalists, they had a specific provision in the treaty: his own conscious honour would not let him doubt the good faith of others; his good wishes to the Loyalists would not let him indiscreetly doubt the dispositions of Congress. It was stipulated, that all these unhappy men should be provided for; but if not, then, and not till then, Parliament could take cognizance of the case, and impart to each suffering individual that relief whichreason, perhaps policy,certainly virtue and religion, required .”
From these Extracts, it evidently appears, that there was no difference in opinion on the right of the Loyalists to adequate compensation. Those who spoke against the Treaty as inadequate to the national circumstances, declared, that the Loyalists had been sacrificed through a want of the protection due to them, and therefore that a full compensation for the sacrifice (and if possible more) was due; and that if the expence of one year’s campaign, or twenty millions, was necessary, it ought to be applied to that purpose. Those who contended, that the peace was necessary to the then state of the country, candidly and honourably agreed, that for such compensation the faith of the nation was pledged. One of the Ministers who made the peace declared, that “if the recommendations of the Congress proved unsuccessful, this country would feel itself bound in honour to make them full compensation for their losses.” The noble Lord at the head of the Treasury, who made the peace, candidly confessed that it ought to be made, and that it would not cost the nation more than one fifth of the expence of one year’s campaign, or twenty millions, “to give to them the same happiness and ease they ever enjoyed before;” and the noble and learned Law Lord, whose profound knowledge of the laws of the land, and of the mutual obligations between the sovereign authority and the subject was never disputed, decidedly declared, that if the Congress should not provide for them, Parliament ought “to impart to them that relief which reason, perhaps policy,certainlyvirtue and religion,required.”
Here we find that the compensation claimed was confessed to be due by all—and that the noble Lord who made the peace, thought it but just to make such compensation as to give the Loyalists the same ease and happiness they ever enjoyed before; but this is impossible. What compensation can Parliament make for suffering them, through a want of its protection, to be driven as it were into exile from the land of their nativity, and from the tenderest and dearest of all connections?—What, to the fathers who have lost their sons? to the widows who have lost their husbands? to the numerous orphans who have lost their fathers, the only hope and support of their infant years? For such losses, too great to be described by language, and scarcely to be estimated by the utmost feelings of humanity, excited by the strongest powers of sensibility, government can make none. The Loyalists expect none; because they are losses to which no earthly compensation can be adequate. For a reward for such losses, and of that virtue which excited them, at every hazard of life and fortune, to fulfil their duty to the State, and to support the rights of their Sovereign and his Parliament, they look up to the supreme Father of all justice. They now ask for that compensation only which they have so long solicited in vain from Parliament; compensation for property and rights which have been lost through a want of that protection which is due to them by the first great laws of the British constitution—by the Royal faith, and the resolutions of a British Parliament, solemnly pledged to them for it; a compensation which is due to them by their birth-rights as British subjects, of which no power on earth can lawfully deprive them.
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.
IT will not be denied, that the property of the Loyalists has been given up by the sovereign authority, as the necessary price and purchase of peace for the whole society. The Minister who made the treaty, unequivocally declared it. It was so understood at the time by all the Members of both Houses of Parliament, when they confirmed the peace. Indeed the fact speaks for itself; because unless that authority conceived that the affairs of the nation were in such extremity as to make such a sacrifice necessary, it could have no right to give up their property, as is before proved, but was obliged to protect it by carrying on the war, until it was regained and restored to them.
Should we attempt to describe the benefits purchased for the nation by this sacrifice, the extent of them is so great and diffusive, it could not be done. However, to have before us a summary view of them, we will only observe, that the ravages of war were stopped in the most violent stage of their progress; and peace and security, with all the invaluable blessings attending them, were restored to every person in the British dominions, except the American Loyalists. The farmer was restored to the unmolested tillage of his ground, and to the peaceful enjoyment of more extensive profits, “under his own vine, and his own fig-tree;” the manufacturer, to a greater vent and greater profits for his commodities, every market being laid open to him; and the vessel of the merchant traverses the ocean at less risk and expence, and consequently to much greater advantage. To these benefits, which are more readily conceived than expressed, we must add the immense national savings. Had the war continued one year more, twenty millions at least, according to the confession of the Minister who made the peace, must have been raised and added to the national debt; and, in all probability, thousands of Britons would have been lost in battle. Had it been extended to two or three years, treble that sum, or sixty millions, would have been incurred; and no man can say, what might have been, in the then deranged state of our public affairs, the loss the nation might have sustained in its territorial possessions. From these burthens, losses, and dangers, great as they were, the nation has been happily relieved, by giving up the property of a few of its subjects. And as it is now certain the debt due to the Loyalists will be much less than one fifth of the expence of one year’s campaign, which was the supposition of the Minister who negociated the peace, it is evident that an immense gain thereby accrued to the nation; but when the other savings and benefits are thrown into the scale, the profits are so great that they admit of no calculation, and the consideration to be paid for them sinks below comparison.
There are certain duties so strongly enforced by moral obligation, that nothing will justify a violation of them but inability or impossibility to perform them; such as, the payment of a debt justly contracted; the fulfilling a promise made for a reasonable and just consideration; the making satisfaction for injuries sustained through a violation of a just covenant or engagement, or a just recompense for benefits received at the expence of others; and adequate compensation for damages or injuries done . These are moral axioms, which carry with them no less evidence than mathematical demonstrations. In all these cases, the moral obligation has been esteemed so great, that the legislatures of States have subjected the property to seizure, the person to perpetual imprisonment, and, in some instances, obliged the debtor to give up his freedom and the produce of his labour, until the duty is fully discharged. The debt due from the nation is certainly of this kind. The human mind can conceive no duty where the moral obligation to discharge it, is more solemnly enjoined by the laws of God and man. It is a debt due from the whole people of Great Britain, not only arising from the most important services done, but from a two-fold violation of their public faith and engagements. The property of the Loyalists has been lost, through a breach of the sacred engagement entered into by the sovereign authority, and confirmed by the essential laws of the State, to protect them; and, as the nation is represented in, and acts by, that authority, of course, through a breach of that engagement by the whole nation. It has moreover been given up as the price of peace , and as a sacrifice to the necessities, security, and happiness of those who were sacredly bound to protect and preserve it. Besides, the advantages and interests derived from the breach of the national and sovereign faith, to those who have committed it, infinitely surpass in value the sum necessary to make a due reparation, and this reparation is expressly enjoined by the original and immutable laws of the British constitution. It is therefore a debt of the highest and most inviolable nature, from which Parliament can never honourably and justly discharge itself, but by making adequate compensation; nor can the moral obligation to do it be by any means suspended, for a moment, but by national inability and insolvency.
To use many arguments to prove that the nation is not insolvent, but able to discharge all its debts with honour, is unnecessary, since greater demonstrations of wealth than are to be found in any country in Europe, appear wherever we cast our eyes. To which it cannot be necessary to add any other proof than that declaration penned by the first Minister of Great Britain (whose peculiar duty it is to understand the national resources), and delivered by the mouth of Majesty itself, “That our commerce and revenue are in a flourishing state.”
We will therefore leave the chimerical idea of national insolvency, there being nothing more absurd and contrary to truth; and proceed to shew with what ease the demand of the Loyalists may be satisfied. We will take for granted, what will not be denied, that there are eight millions of persons in Great Britain who contribute towards the national expences; and suppose, that the debt due to the Loyalists should amount even to the sum suggested by the Minister who negociated the peace, which will not be the case; it would require to pay it in five years, only one shilling and sixpence each person per annum; and, to fund and place it upon a par with that of the national creditors, it will require less than four pence per annum each person; which would amount, on the whole, to a sum considerably less, as experience has shewn, than can be easily raised by voluntary contributions to an annual lottery.
Here we find, when this debt to the Loyalists shall be fairly distributed among those who enjoy the benefits arising from it, as both reason and law direct, it will be scarcely felt. And when it is further considered that it may be paid, in a mode yet more easy to the nation at large, and without adding in the least to its present burthens, by the voluntary contributions of thousands who are ready to make them, no reason can be assigned why it has not been done long since.
Under these circumstances, it is impossible for us to suppose, there is a man in Great Britain, who, understanding the nature and import of the debt due to the Loyalists, the benefits he has long enjoyed in consequence of it, the facility with which it may be paid, and the high obligation he is under to discharge it, will not cheerfully contribute his proportion towards it. Is there one honest and liberal mind which can enjoy benefits obtained by the sacrifice of the lives and fortunes of his innocent and faithful fellow-subjects, without making a just recompense? Is there one man of the least degree of sympathy and humanity, who can see his brethren, equally entitled with himself to the protection of the State, made the victims to their peace and happiness, without contributing his quota to rescue them from the oppression? If there are persons so lost to all sense of reason, justice, and humanity, let them consider, that the case of the Loyalists may soon be their own. Rebellions and war may and will happen; their property may be taken, destroyed, or given up to the public necessities without their consent; and they, like the Loyalists, with their helpless families, may be reduced from affluent fortunes to poverty and want, while others enjoy the benefits arising from the oppression and injustice done to them. Indeed the sacrifice of private property to the public benefit is a common case. It has occurred as often as a rebellion or war has happened in Great Britain. Should a precedent in the case of the Loyalists be established by the highest authority, for refusing the protection and indemnity due to the subject, where will they find, in their case, relief from the oppression?
It may also not be improper for Parliament to consider, that foreign nations will not fail to exult at finding so great a want of public justice in the British government, the strongest of all possible proofs of a decline in the wisdom and power of States; and that the subject at home will clearly perceive, he cannot in future rely on any protection or indemnity for the sacrifice, which may at any time be made, of his property for the public benefit, nor for the losses he may sustain by his fidelity to the Crown, and zealous exertions in defence of the State. Will he not reflect, that a state of neutrality will be his only security, and that he can be under no obligation to do more?
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.