YALE UNIVERSITY
LIBRARY

THE
CLAIM OF THE
AMERICAN LOYALISTS
REVIEWED AND MAINTAINED
UPON
INCONTROVERTIBLE PRINCIPLES.'
O F
LAW AND JUSTICE.

" The high Court of Parliament ought to give Example to'*'
" inferior Courts of proceeding according to Justice."
Tbe Opinion of tbe fudges in tbe Cafe of tbe
Countefs of Saftjbury.

LONDON:
printed for g. and t. wilkie, n° 7 1,
st. Paul's church-yard.
M DCCLXXXVIII.

THE

CONTENTS.

Introduction ? ^— '~7- Page v
C H A P. I.
The Cafe, of the American Loyalifis briefly
fated \ — - — ¦ I
chap: II.
Of the Rights of the Loyalifis to Protection
and Indemnity under the fundamental Laws
of 'Civil §Q,cie*ty, and particularly under thqflf
ofjbe $ritiJh'Confitution, : — 15
CHAP. III.
Of the Ufage of Nations under ^he fundamental
•Laws of 'Civil Societies ¦, 77- 49
C HAP. IV.
Of the "Senfe and Declaration of his Majefly and
Parliament ', on the Right of the Loyalifis Jo
Compenfationt when their Aid was thought
neceffary tofupprefs the Rebellion t — 56
A 2

CONTENTS, CHAP. V.
Of the Ufage and Precedents of Parliament,
under the fundamental Laws of the Britifh
State, — — page 73
CHAP, VI.
Of the Senfe and Declarations of the Members of
both Houfes of Parliament, in their Debates
on the Treaty of Peace, upon the Right of the
Loyalifis to Indemnity and Compenfation, 84^
CHAP. VII.
Of the Doctrine of the Right Hon, Mr. Pitt*
applied to the Claim of the Loyalifis, 103
CHAP, VIII.
Of the Benefits received by the Britifh Nation
h from the Sacrifice made of the Property of
the Loyalifis, -— — no
C H A P. IX.
>¦» Objections anfwered, — - 1 1 8
Appendix, — — 135

INTRODUCTION.

IF any apology can be neceflary for the fol
lowing- review, we have many to offer,
any one of which, we truft, will fatisfy the
ingenuous enquirer.
The claim of the American Loyalifis, upon
a candid examination, will appear to ftand
upon the higheft ground of national honour
and national juftice. Their pleas of merit are,
a faithful obedience to his Majefty's commands,
— ?a firm confidence in his Royal Faith—
a peifett reliance on the afiurances of both
Houfes of the British Legislature; and
a faithful difcharge of the firft of all political
duties, by their undaunted exertions in the
fupport and defence of the authority of tjhe
Crown, and the rights of Parliament; in
eonfequence of which, their fortunes have been
facrificed to the national fafety. Their pleas.
of right are the unchangeable principles of rea-
fon and juftice — the fundamental laws of the
Britifh conftitution— ~xhefacred obligations, by
which the Sovereign Authority is bound to
indemnify

[ vi ]
indemnify its faithful fubjects — the faith of
their gracious sovereign, and the so
lemn promifes of Parliament pledged to
them for that indemnity.
It muft be confeffed, that in a claim efta-
blifhed upon fuch principles, the diclales of
reason and juftice forbid all delay; and yet
(from what caufess we prefume not to fuggeft),
five years have elapfed fince,. the right was
perfectly veiled, and fince it was clearly ac
knowledged by the Minifters, who devoted
their fortunes to the national neceffities ; and
by many others of the moft eminent and
fearned fpeakers of both Houfes of Parliament.
Their Sovereign has been graciouflypleafed,
long fince, to recommend it to the confidera-
tion of Parliament. A Bill has been paSed
to enquire into their lories, and reports have
i>een made, from time to time, of the value
of thofe loftes to the Lords of his Majefty s
Treafury, which have been ' laid before the
'Houfe-of Commons ; notwithstanding which,
the claimants ftill remain altogether in the
dark, refpe£ting the iflue of their claim. Their
'humble prayers for juftice have not been want
ing. Their petitions to Parliament have
been repeatedlV prefented, and, contrary to
many, and, as we believe, to all precedents in
5 cafes

[ vii }
cafes1 of much lefs public merit, have been
ordered, feffion after feflion, to lie on the
table. Their claim of juftice has thot been
fulfilled^ difcufTedj or even examined. Hence ;
it is, that their minds, before too much op-v
prefled by their misfortunes, have remained
in the mod painful and diftreiling uncertainty,
fufpenfe, and anxiety. Many of them^ who
might have been made happy by the fums re
ported to be due to them, are at thisjnoment
labouring under all the diftreffes incident ltd
poverty and want. Numbers in Nova Scotia
have been fupported by the charitable dona
tions of their friends*, the fubje&s of the
American States. Many are labouring under
the want of means to " fubfift themfclves on
their uncultivated farms ; many, through the
- profpe^t of want, have died of broken hearts ;
and others have been driven, by their extreme
diftrefs, into infinity^ and from infanity to
SUICIDE, leaving their helplefs widows and
orphans to prolong their miferable exiftence
on the cold charity of others.
* The Quakers of Pennfylvania being informed that a num-<
ber of their brethren, Loyaliits in Nova Scotia, who had been "
driven from the United States on account. of their fidelity to
Great Britain, were in extreme diftrefs, after the rations al
lowed by his Majefty's treafury had been withdrawn, have
charitably collected confiderable fums of money, and fent them
feveral hundred barrels of flour and other provifions for their
fubfiftence,
• ¦ ' ¦ In

[ viii ]
In flating thefe melancholy truths, and in
publifhing the following review, we truft no
perfon will think that we can mean to give of
fence. Our defign is fimply to revive a claim
of the firft public merit which feemed to be
finking into oblivion, and to give information
to thofe on whofe liberality and juftice we moft
fincerely rely ; and who, we are firmly per-
fuaded, when they fhall candidly and maturely
confider the facts upon which their claim is
founded, will make that compenfation which
is due to them as Britifh fubjeclsby the faith of
Majefty, and the honour of Parliament, and
the fundamental laws of the Britifh conftitution.

THE

T H E
O L A I M
OF THE
AMERICAN LOYALISTS
R E V I E W Eft.

CHAP. I.

The Cafe .of- the- American Loyalifis briefly
fated.
N the year 1 764, feveral tumults and infur-«
rectibns, . againfl the authority of the Crown
and \fhj. rights of Parliament took, place in
Amierica. The houfes. and other -property of
divers, perfons, who had difcharged. their duty
in attempting to carry that authority and
thofe rights into execution, were deftroyed,
whereupon both Hqufes
Refblved, " That, an humble Addrefs be
" prefented to his Majefty, to defire that he
B " would

C « 1
" would be gracioufly pleafed to give in-
" ftru&ions to the Governors of the feveral
" provinces where thofe tumults and infur-
" re&ionS have happened, that they fhould,
" in his Majefty's name, require the Affem-
" blies of the faid provinces to make A PRO-
" per recompence to thofe who have fuf-
" feted in their perfo?is or properties, in con-
" fequehce of the faid tumults and infurrections ;
" and to affure his Majefty that they will,
" upon this and all :occafions, fupport the
" lawful authority of the Crown, and the
*' rights of Parliament/' -
And they further
Refolved, " That all his Majefty's fubjects
reftding in the faid colonies, who batx ma-
nifefed their defre to comply with, ortoaffifi
in carrying into execution the Act for lay-
" ing a duty On ftamps, or any'8thif> A&. ol
*' Parliament, in the Britifh\Colonifeg in North
** America, have acted as dutiful and hya*
u Jubjects; fcff. and are" therefore entitled: to,
iC and will 'afluredlyi']ikt& the favour ana
*' protection of this Houfe.*' !
• . .  '--' — , ¦¦¦¦ #o/n <"<• ^ -•,!-.•' . .¦
In the year 1767, the infurrections in Ame
rica, encrea-fing, the Houfe of Commons tpok
into .their confideration the ftate of North
Americ\j

a

«t

[ 3 ]
America; and after full deliberation, came,
among others, to the following refolves, viz.
Refolved, " That tumults and infurre&ions
" of the mofl dangerous nature have been
" raifed and carried on in the North American
" colonies, in open defiance of the powers and
" dignity of his Majefty's government, and in
" manifeft violation of the legift 'ative authority
" of this kingdom."
Refolved, " That fuch perfons, who, on
" account of the defre which they have mani-
" fefed to comply with, or to ajfift in carrying
" into execution, any Abts of the Legiflature of
" Great Britain, relating to the Britifh colp-
" nies in North America, have fuffered any
" injury or damage, ought to have full and
" ample compenfation made to them for the
" fame by the refpective colonies in which
" fuch injuries or damages were fuftained."
Refolved, " That all his Majefty's fubjefls
" refiding in the faid colonies, who have
" manifefted their defire to comply withy or
** to ajfift in carrying into execution any
" Acts of the Legiflature, relating to the faid
" colonies in North America, have acted as
" dutiful and loyal fubjects, and are therefore,
" entitled to, and will affuredly have the
" protection of the Houfe of Commons of
" Great Britain." B % The

t 4 ]
The fame Houfe of Commons, 'impreffed
not only with a proper fenfe of the national
juftice which the Loyalifts contend for, but
with the policy and neceflky of holding, out
diflinguifmtg rewards,, and marks of the, na
tional favour and approbation to thofe who
had and fhould diftinguifh themfelves by their
zeal and fidelity, >•,-» .
Refolved, " That an humble Addrefs be
•" prefented to his. Majefty, that he will be
" graeioully pleafed. to confer fome marks of his
" royal favour oq thofe Governors and
" Officers in the feveral colonies, who diftin-
-*' guifhed themfelves by their zeal and fidelity
rf' in fupporting the dignity of the Crown, the
" juft. rights of Parliament, and the fupreme
" authority of Great Britain over the co-
*' lonies, during, the late, difturbances in
" America."In the year 1775 ' the preceding tumults
and infurrections againft the authority of the
Crown; and the rights of Parliament, encreafed
to " open and avowed rebellion." The
leaders afTumed the rights of independent le-
giflation, of judicial enquiry, fentence, and
execution,, The prevalence of the power and
^violence of the., infurgents Was fuch, that, in
a little time, thofe who appeared defrous to
fupport ,

[ 5 ]
fupport the authority of the Crown and rights
of Parliament, or refufed to unite with the
infurgents, were dif armed, tarred, feathered,
and inhumanly treated. The King's forts
were difmantled. The Governors and the
Officers of the Crown, who had continued
faithful to their truft, together with all others
who had oppofed the fedition, were reduced
to the alternative of efcaping from the tyranny,
or of being imprifoned in loathfome dungeons
or polluted mines, in which fituations num
bers have perifhed. "Whereupon his Majefty
laid this ftate of the colonies before the two
Houfes of Parliament, who concurred in af-
furing his Majefty, " That it was their fixed
" refolution, at the hazard of their lives and
" properties, to ftand by his Majefty, againft
" all rebellious attempts, in maintenance of
" his juft rights, and of the two Houfes of
" Parliament." — And the aids were accord
ingly granted for that purpofe.
In purfuance of thefe fpirited meafures of
the Parliament, his Majefty, on the 23d of
Auguft in the fame year, publifhed a pro
clamation at St. James's, in which, after re
citing that an " open and avowed rebellion
" exifted in America," as the reafon of the pro
clamation, his Majefty adds, " To the end,
" there-

[ 6- ]
" therefore, that none of our fubjects may
." neglect or violate their duty through igno-
" ranee thereof, or through any doubt of the
** protection which the LAW will afford to their
" loyalty and zeal, We have thought fit, by
** the advice of our Privy Council, to iffue
" this proclamation, hereby declaring, that
" not only all our Officers, civil and military,
" are obliged to exert their utmofl endeavours
" to fupprefs the rebellion, but that all the
"fubjects of our realm, and the dominions
" thereunto belonging, are bound by law to.
*' be aiding and ajfifting in the fupprejfion of
" the rebellion, and to difclofe and make known
" all traiterous confpiracies and , attempts
'* againft our Crown and dignity. And we
**. do accordingly frittly charge and command
" all our Officers, civil and military,* and all
" other our obedient and loyal fubjects, to ufe
" their utmofl endeavours to withftand and
" fupprefs fuch rebellion,'' &C. .
In the fame year Genera] Gage, Com
mander in Chief of the Britifh forces in
America, iffued his proclamation, declaring,
" that all thofe who fhould protect, affifl,
•' fupply, conceal, or correspond with the
" infurgents, fhould be treated as rebels and
" traitors." - The

L 7 J.
The ufurped legiflaturesofthe feveral colo
nies, in their turn, pafied laws, declaring,
" That all perfons who fhould aid, affift, or
" correfpond with the fubjedts of Great Bri-
" tain, fhould be adjudged guilty of high
" treafon againft their authorities." And,
under thefe laws they attainted the perfons,
and confifcated the property, of all who ad
hered to their allegiance, or gave the leaft aid
or affiftance towards fupporting " the au-
" thority of the Crown, or rights of Parlia-
" ment." The critical and dangerous predicament in
which thefe tranfactions placed the LoyaoHs,
is not eafily defcribed. General. Burgoyne,
who was on the fpot, has attempted to give
fome idea of the dreadful fcene, which he
declares to confift of " arbitrary imprifonment',
" conff cation of property, petfecution and tor-
" ture, unprecedented in the Inquisition
*' OF Rome. Thefe are inflicted," continues
the General, " by Aflemblies and Commit-
" tees, who dare to flyle themfelves friends
" to liberty, upon the mofi faithful fubjetts,
" without diftinction of age or fex, for the
w fole crime,. often for the fole fufpicion, of hav-r
" ir\g adhered in principle to the government
" undef which they were born, and to which,

t 8 ]
*' by every tie, human and divine, they
"owed allegiance."
Notwithstanding this critical and dreadful
fitiiafion into which the Loyalifts were drawn
by their confidence in his Majefty's procla
mation, and" the affurances of Parliament ; and
notwithstanding many had fuffered death, and
numbers were langu'ifhing in dungeons and
mines ; the Commiflitmers of his Majefty ana*
Parliament, and Commanders 'm Chief acting
under 'his Majefty's authority, did not ceafe
to call on thofe who furvived to adhere to
fjiejr allegiance, and for their affiftance. .
, Itt,\*Jae year 1776, Lord Vifcount Howe *
publifhed a proclamation, and as. a farther
and more efpecial encouragement exprefsly
declared, " That due conf deration fhould be
4* had to the meritorious ferviees of all per-
"fbins who fhould aid and ajfift- jh reftoring
** the public tranquillity, and that .eperyfuit-
" able encouragement fhould be' given for pro-*
** moting fuch meafures as fhould be condtft v
" cive to the eftablifhment of ;.civil govern-
" ment arid peace*" -
In the fame year, two other proclamations
were iffued by Lord and General Howe, and
» One of the Parliamentary Commiffioners, and Com-.
mander in Chief of his Majefty's naval forces in America.
8 ade-»

t 9 3
a declaration by the latter in the year follow*
ing, calling on the people to difcharge their-
duties as fubjects.
In the year 1778, his Majefty's CommiffionT
ers acting under the authority of Parliament,
in their manifefto and letter to Henry Law-
rens, Prefident of Congrefs, which they af
terwards publifhed throughout Americaj de-r
clare, that a " regard muft be paid to the
" many who, from affection to Great Britain,
" have expofed themfelves to fuffer in this
" conteft, and to whom Great Britain owes
" flpport at EVERY EXPENCE OF BLOOD
" AND TREASURE."
In the fame year the fame Commiffioners
publifhed their manifefto and proclamation, in
which they call on the people of America in
general, " to vie with each other in eager
" and cordial endeavours to fecure their own
" peace, and to promote and eftablifh the
" prcfperity of their country, and the gene-
" ral weal of the empire ;" and in particular,
apply to and command " all Officers, civil and
" military, and all other his Majefty s loving
" fubjetts whatever, to be aiding and affifting
" unto them in the execution of their mani-
" feflo and proclamation, and all matters
" therein contained." C Ojj

On the 23d of May 1780, Sir Henry
Clinton iffued a proclamation, wherein, in his
Majefty's name, he called on and command
ed all perfons whatfoever, to be aiding and
affifting to his forces, whenever they fhould
be required, in order to extirpate the rebellion;
and for the encouragement of the King's faith
ful and peaceable- fubjects, he affured them,
" that they fhould meet with effectual counte-
" nance, protection, and fupport ;" and the fame
requifition and affurances were with equal fo-
lemnity repeated in a fubfequent proclama
tion publifhed by Sir Henry Clinton and Vice-
Admiral Arbuthnot, as his Majefty's Com
miffioners to reftore peace and good govern
ment in the feveral colonies in rebellion, on the
firft of June following.
In the year 1778, the Congrefs, defirous of
weakening the Britifh power, and of gaining
over the influence and afliftance of the Loyal
ifts, by a refolve, recommended to the feveral
States to repeal the fanguinary laws made
againft them, and to reftore their property
which had been confifcated ; and overtures
were made by General Wafhington to take
them under his protection ; but although they
had reafon to apprehend, from the evacuation
of Philadelphia by order of the Britifh govern ment,

[ « J
ment, the fubfequent movement of the troops
from America to the Weft Indies, and the
numbers in both Houfes of Parliament a°;ainft
carrying on the war in the colonies, that they
were about to be deferted by the Britifh arms ;
yet, with this profpect of diftrefs, which no
language can defcribe, they confidered their
allegiance to his Majefty, and their connection
with their fellow-fubjects, as facred and in
violable ; the infallible confequence of which
was, a more general attainder of their lives,
and a confifcation of their fortunes ; although,
had they then withdrawn from their"* alle
giance, they might have obtained a repeal of
the laws attainting their lives, and been re-
ftored to their property. Under thefe cir-
cumftances, painful as they we>e, they never
complained. Their loyalty and zeal in the
caufe of the State remained undiminifhed, or
rather kept pace with their encreafing diftrefs.
All the tender ties of the parent, hufband,;
and fon, were overcome by their public vir
tue ; nor did they defert the finking caufe of
their country until floe deferted k herfelfl
Thus led forth from the refi of their fellow-
fubjects, by their duty to the State, their obe
dience to his Majefty's command, and the af
furances of both Houfes of Parliament, they
firmly "confided in the royal faith, and the
C 2 honour

[ ™ ]
honour and juftice of Parliament, that they
Would at all events afford them the protec
tion due to them by law, and fo folemnly
promifed. In the year 1781, the Loyalifts, being alarm
ed at the diflinction made in the articles of ca
pitulation of York, in Virginia, between Bri
tifh fubjedts and the Loyalifts who had ren
dered themfelves amenable to the fanguinary
laws of the New States, his Excellency "Wil
liam Franklin, Efq. Governor of the province
of New Jerfey, wrote to Lord George Ger-
maine, then Secretary for the American de
partment, on the fubject. In anfwer to which
letter, his Lordfhip wrote to the Governor on
the 2d of January 1782, That " the alarm
" taken by the loyal Refugees, at the fifth ar-
** tide of Lord Cornwallis's capitulation is
" not to be wondered at. The King's
" anxiety to remove the fears, and reftore
" the confidence, of thofe zealous and me-
" ritoriqus subjects, has induced his
" Majesty to direct me further to exprefs
" to Sir Henry Clinton (then Commander in
" Chief of all the Britifh Forces in America)
" his royal pleafure,' that he fhould, in his
<c Majesty's name, give them the ful-
* lest affurances of the continuance of his
" affec-

[ 13 1
,c affection and regard for their hap-
" piness, and that, in all events, they
" may rely upon the utmoft attention be-
" ing fhewn to their safety and wel-
" fare."
At length, in the year 1782, a negociation
for peace was opened at Paris between the
contending parties. Here it will not be de
nied that the Loyalifts, after fuch ftrong af
furances of protection by his Majefty and
Parliament, had good right to . expect an ar
ticle would be obtained for. annulling the
fanguinary laws which attainted their per
fons and confifcated their property, and that,
according to all ufage on fimilar occafions, it
would be reftored to them. But in this they
found themfelves fatally miftaken. The
American Commiffioners declared they had
no authority from the States to make it; and
befides, if they had the authority, and the
reftitution was infifted on, they would alfo
infift that Great Britain fhould pay for all the
damages done, and property taken, by the
Britifh armies during the war, which wouldt
amount to much more than the confifcated
property *. The Minifter, on the part of
Great Britain, confidering the ftate of the
nation, the enormous expence of carrying on
* S,ee the Appendix. the

t 14 ]
the war, and the necefifity the Public was
under of obtaining peace, gave up the point
in difpute, and ceded the property of the
Loyalifts, as a recompence and fatisf action for
thofe damages, and as the price and purchafe of
peace for the empire. He unconditionally con
firmed the independent fovereignties of the
ufurpation, and with them the fanguinary
laws by which the perfons of the Loyalifts
Were attainted and their property confifcated.
This treaty was afterwards ratified by his
Majefty, and confirmed by both Houfes of
Parliament. Such is the unexaggerated ftate of the facts
which make up the claim of the American
Loyalifts. It remains to be examined, whether
thofe who are entrufted with the fovereign
authority of the Britifh Government, are not
under the moft facred obligations to protect
the fubject. in his perfqn and property, in all
events, while he performs the duties of alle
giance and fulfils the laws of the land ? Whe
ther, in the conftitution of the Britifh ftate,
there is no law which entitles the fubject to
indemnity for property loft in confequence of
his fidelity to the Government, or through
the want of the protection due to them by
law f Whether the fovereign authority may
9 lawfully

[ *5 1
lawfully cede, in a treaty, the property of the
fubject without fuch indemnity .? And whe
ther the rights and property of the fubject are
fo extremely precarious, and the powers of the
fovereign authority fo perfectly defpotic, that
it is authorifed by law to difpofe of his pro
perty, while he fulfils the duties of a faithful
citizen, without his confent, on any account or
to any purpofe whatever, without making
a just compensation?

CHAP. II.
Of the Rights of the Loyalifts to Protection and
Indemnity under the fundamental Laws of
civil Society, and particularly under thofe of
the Britifh Conftitution.
' I v H E right of the Loyalifts is not origi
nally derived from an act of the fove
reign legiflature. Their title to protection
and indemnity for their property loft, in confe
quence of their fidelity to the State, and through
the want of national protection, and after
wards given up by his Majefty and Parlia
ment to the United States of America, is
perfectly founde4 on laws coeval with the
inftitution of that authority, and which gave
it exiftence. It is eafy to perceive that we
here

[ 16 j
here" mean neither the prefcriptive, common,
norftatute laws, but thofe fundamental laws
which form and eftablifh civil fociety ; laws
fo facred in their nature, that they are not
jfubject to alteration or repeal, even by the
fovereign authority itfelf. On the contrary,
they are thofe laws which were eftablifhed
before the municipal inftitutes of the ftate
could exift ; from which the latter derive all
their authority, and which the fovereign legif
lature is, by the moft facred principles of ho
nour and juftice, bound to preferve inviolate,
not only as the 'bafts and foundation of its own
powers, but as the deareft birthrights and
facred pledges for the protection and happinefs
of the people,
Thefe laws, although too little underftood,
are treated of by many learned and eminent
authors, among whom there is no difference
in opinion refpedting them. To their autho
rity all fovereigns and their fubjects either do
or ought to appeal, as to the proper fiandards
of decifion, whenever difputes happen re
flecting the powers and obligations of the
firft, and the rights and privileges of the laft.
They are in fubftance,
. i. The covenant or law by which each in
dividual engages with all the refl to join for
ever

t >7 3
ever in one body, and to regulate with one
common confent whatever relates to their com
mon protection and prefervation.
2. The law by Which the form of govern
ment is fettled, the fovereign authority ap
pointed, its powers modified and limited, and
its obligations and duties to the individuals
who compofe the fociety are defined and fixed.
And, .
3. That law which eftablifhes the mutual
covenants between the foVereign authority and
the fubje£t, by which that authority folemnly
engages to confult, upon all occafions, the
common benefit and fafety, and to afford to
every individual equal protection againft the
evils of a ftate of nature ; and by which every
fubject promifes, in return for that protec
tion, hisfidelity and allegiance to the fovereign
authority. By fuch laws, either tacit or exprefs, every
regular ftate or perfect government is formed
and bound, not excepting even that of abfolute
monarchy, and corifequently that of Great
Britain. Burlamaqui, in his Treatife on Po
litic Law, defines them in the following
manner :
" The fundamental laws of a ftate are not
" only thofe decrees by which the entire body
D " of

t 18 ]
*' of the nation determine the form of govern*
" ment and the manner of fucceeding to the
" throne, but are likewife the covenants be-
" tween the people and the perfon on whom
" they confer the fovereignty, which regulate
" the manner of government, and by which
" the fupreme authority is limited.
" They are, as it were, the bafts and found*
" ation of the ftate, on which the ftructure of
" the government is raifed ; and becaufe the
" people draw from them their principal
" ftrength and fupport*
" Thefe covenants are obligatory between
" the contracting parties (the fovereign au-
" thority and the fubject), and have the force
" of laws themfelves. They are thofe pro-
" mifes, either tacit or exprefs, by which
" princes, when they come to the throne,
" bind themfelves, even by oath, of govern-
*' ing according to the laws of justice
'* and equity, of confulting the public good,
" of oppressing nobody, and of pro

tecting THE VIRTUOUS."

Having given this general idea of the na
ture and fubftance of the fundamental laws of
a regular ftate, it is not neceffary to the fub
ject before us to dwell more particularly on
thofe which relate to the union, and confti- tute

[ 19 I
tute the particular form, of this great body
politic. We fhall therefore confine our obfer-
vations to thofe which have eftablifhed the
mutual obligations and duties between the
fovereign authority and the people, and by
which the right of the Loyalifts to compen-
fation is inconteftably eftablifhed. Thefe, laws
are truly of the firft importance. They
form the great bulwark of the people's rights
and freedom, and are the only fecurity they
poffefs for their defence and fafety, againft
both domeftic and foreign injuries. They
regard the protection due from the fovereign
authority to every fubject, and the allegiance
due from every fubject in return, by which
the former is bound to protect the latter, and
the latter to give the former his allegiance in
all things neceffary to that protection.
" By this law," fays Burlamaqui, " the
" fubject promifes his allegiance to the prince
" (or fovereign authority), upon condition that
" he will protect him ; and the prince, on his
" fide, promifes the fubject protection, upon
" condition that he will obey him. Without
" this law, a fubject cannot be obliged to
" obey the prince, nor can he be obliged to
" protect the fubject, at leaft by any perfect
" obligation." And Lord Coke declares,
D 2 when

[ 2© I
when treating of this law of the Britifh Go*
vernment, " That protection and allegiance;
" are reciprocal duties."
But further ; to fhew that thefe mutual obli-r
¦ * # •
gations of protection and allegiance form a
part1 of the fundamental laws of the Britifh
conftijiution, we fhall cite many cafes folemnly
adjudged in the books of law, while' there is
none to be found of a contrary nature or ten-?
dency. In Calvin s cafe, which we are told by
the firft of lawyers and judges, Lord Coke,
was moft elaborately, fubftantially, and judi
cially argued by the Lord Chancellor and all the
judges of England, and in which, we may add,
all the authorities on the fubject were collected
and cited, the bands which tie the fovereign
authority and the fubject together, with their
refpective duties to each other, were fully dif-
cuffed arid clearly explained. In'this cafe it
was unanimoufly refolved,
ift, f< That the law of nature is part of the
** law of England.
2d, ^ That the laws of nature are immu-
^ table, and cannot he changed.
3d, " That protection and government are
** due to the fubject by the law of nature.
4th, " That the ligeance and obedience of
^ the fubject are due by the law of nature. 5*,

[ 21 ]
5th, ** That neither ligeance nor protection
<•' is tied to municipal laws, but is due by the
*' laws of nature.
6th, tf That ligeance is a true and faithful
*' obedience of the fubject due to the fovereign.
fi This ligeance and obedience is the inci-
" dent infeparable to every fubject ; for as
" foon as he is born, he oweth by birthright
" ligeance and obedience to his fovereign.
" Ligeantia eft vinculum fidei ; et ligeantia
" eft quafi legis essentia ; ligeantia eft liga-
" mentum, quafi ligatio mentium, quia f cut li-
" gamentum ef connettio articulorum, juncto-
" rum, &c. * As the ligatures or firings do
" knit together the joints of all the parts of
" the human body ; fo doth ligeance join
" together the fovereign and all his fubjects,
" quasi UNO LiGAMiNEf." Glanville, who
wrote in the reign of Henry II. lib. 9. c. 4.
fpeaking of the connection which ought to-
be between the lord and tenant that holdeth
* " Ligeance is the bond or obligation of faitb between
" the fovereign and all the members of civil fociety ; and
" ligeance is, as it were, the effence of the law of union. Ligeance
" is the ligature which, as it were, ties and binds the minds
" of the fovereign and fubjedts together ; becaufe, like a band-
" or ligature, it forms the connection, and binds the limbs,
" joints, mufcles, nerves, Wf. and the head of the human
" body together."
f " As in one facred and inviolable band."
by

<(

[ 22 ]
by homage, faith, " That mutua debet effe
" dominii etfidelitatis connexiofita quod quan-
<c TUM debet domino ex homagio, tantum
" //// debet dominus ex dominio, prater folam
« reverentiam *; and the lord" faith he, " ought
to defend his tenant. But between the- fove
reign and fubject, there is, without compa-
" rifon, a higher and greater connexion. For
" as the fubject oweth to the king his true and
" faithful allegiance and obedience, fo the fove-
" reign is bound to govern and protect his fub-
" jects. Regere et protegere fubditos fuos f ; fo
" as between the fovereign and his fubject there
" is duplex et reciprocum ligamen, quia ficut
" fubditus regi tenetur ad obedientiam, ita rex
" fubdito tenetur ad protectionem ; , merito igitur
" ligeantia dicitur a ligando, quia continet infe
" duplex ligamen $. And therefore it is holden
* '" The connection or obligation between the Lord and
" his tenants ought to be mutual, fo that as much as is due
" from the tenant by homage to the lord, fo much the
" lord owes to his tenant from his power and right of do-
*' minion, a dutiful refpeft only excepted."
f To govern with juftice, and to protecl: the fubjeft from
all manner of violence and injuries, both foreign and domeftic.
t There is a double and reciprocal obligation and duty,.
becaufe, as the fubjeft is bound to obey the fovereign, fo the
fovereign is bound to protedt the fubjeft; therefore, more
efpecially, ligeance is called a ligatiire, becaufe it implies a
double and reciprocal obligation between the fovereign and
the fubjeft.
9 " in

[ n 3
'* in 20 H. VII. c. 8. that there is a liege or H-
" geance between the king and fubject. And
" Fortefcue, cap. 13. Rex adtutelam legis, cor-
*' porum et bonorum fubditorum erebtus ef *.
*' And in the acts of parliament of 10 R. II.
*' c. 5. and 11 R. II. c. 1. 14H.VIII. e.2. fub-
" jects are called liege people, and in the acts of
" parliament in 34H.VIII. c. 1 . and 35 H.VIII.
" c. 3, &c. the king is called the liege lord of
" his fubjedts. And with this agreeth Skeene
" in his book De Expoftione Verborum (which
" book was cited by one of the Judges, who
" argued againft the plaintiff). Ligeance is
" the mutual bond and obligation between the
" king and his fubjedts, whereby the fubjedts
" are called the liege fubjedts, becaufe they
u are bound to obey and serve him ; and
44 he is called the liege lord, becaufe he is
" bound tO MAINTAIN AND DEFEND THEM.
" Therefore it is truly faid, that protectio
*' TRAHIT SUBJECTIONEM, ET SUBJECTIO
" PROTECTIONEM j*.
* The king is appointed to execute the laws, to adminifter
juftice to his fubjedts, and defend their perfons and goods.
¦f " Protedtion of the fovereign draws to it and commands
" the obedience and fubjedtion of the people; and the obedi-
" ence and fubjedtion of the people draws and commands the
" protection of the fovereign." Any thing fhort of this
would deftroy the reciprocity of the obligations and duties-be-
tween the fovereign and fubject.
The

C H 3
The intelligent mind will readily perceive^
that thefe mutual obligations and duties, which
form the political connection between the fo
vereign authority and the peoples are effentiai
in every regular and juft government, and
cannot be difpenfed with on either fide, with
out deftroying the bands, and fapping the
foundation, of its union. For when the
people refufe, arid withdraw their allegiancd
from the fovereign authority* it neceffarily
lofes its power and fuppOrt, and a ftate of
anarchy and injuftice muft enfue ; and when
that authority withdraws its juftice, ceafes
to protect the fubject $ and, againft his con-
fent, difpofes of his property without making
^adequate compenfation, it becomes deJpotict
^"and fubverts the very defign of its inftitu*
i tion. To underftand the importance of thefe co
venants to the fafety and happinefs of the
fubject^ it is neceflafy to know the meaning
and extent of the words protection and al*
legiance. For this we muft look into the end
which mankind had in view, by giving up
their natural freedom and independence. Here
we fhall find that this end was, " to deliver1
" and fhelter themfelves from the evils inci-
" dent to a ftate of nature, from the frauds " of

I *s 1
K of the artful, and the violence and injuftice
** of the ftrong *;'' by fubmitting to a power
more wife, more juft, and more firong than
they were in their natural and unconnected
ftate. To attain this purpofe, they formed
the union, appointed the fovereign authority,
and conferred upon it all the rights and
powers neceffary to afford this " fhelter from
" injuries ;" which, at the fame time, fo
lemnly engaged to afford it upon all occafions
againft all injuries. For this engagement is
not confined to any fpecified particular evils ;
but in its own nature extends to all, both
foreign and domeftic, which men are liable to
in a ftate of civil fociety. This is fimply
what is meant by the word protection
under the laws of all civil focieties.
That it is fo under the laws of the Britifh
conftitution, will appear from a number of
writs of protection granted by the Kings of
England, to be found in the Regifter, and
cited at large in Calvin's cafe, 4 Coke's Rep.
Thefe writs are directed to every fubordiriate
body politic, officers and perfons bound to
protect the fubject under the royal autho
rity. Here " protectio regiaf or the pro-
* Burlamaqui. E tection

[ 26 ]
tedtion of the Crown, is defcribed in thefe
words : Sufcepimus ipfos F. et A. res ac jufias ¦
poffeffiones et bona fua qua ciinque in protectionem
et falvam gardiarA nqflram. Et vobis et cui-
libet vefrum injungimus et mandamus quod
ipfos T. et A. familias, res et bona fua qua-
cunque a violentiis et gravaminibus defendafts,
et ipfos in juftis pojfejftonibus manuteneatis. Et ^
ft quid in prejudicium hujusprotettionis, etfalva
gardia nofira attentatum inveniretis ad fatum
debitum reducatis *. And in another writ, this
protection is thus defcribed : Et ideo vobis,
&c. injungimus et mandamus quod ipfos G. et R.
eorum homines, familias ac jufias poffeffiones et
bona fua quacunque manuteneatis, protegatis et
defendatis : non ' infer entes in eis, feu quantum
in vobis ef ab aliis inferri permittentes, injii-
riam, molefliam, damnum, violentiam, impedi-
mentum aliquod feu gravamen. Et fiquid eis
forisfabtum, injuriqtum et contra eis. indebite
* " We have taken the faid F. and A. their eftate, their pof-
*' feffions and goods of .every kind, into our protection and fafe-
" keeping; and we enjoin and command you, and every 6f you,
" that you defend the faid T. and A. their families, eftates, and
" goods of every kind, from violence and injury, and preferve
" them in their juftpoffeffions. Andifyou fliall find anything
" done to the prejudice of this our protection and fafe keeping.
" that you reftore them to the fame Ji ate in which they were
" before the injury committed." attentatum

[ 27 ]
attentatum fuerit, id eis fine dilatione corrigi, et
ad fatum debitum reduci faciatis prout ad vos
et ad quemlibet vefirum noveritis pertinere *.
But as the fovereign authority could not
perform this important duty, upon which the
fafety and happinefs of the fubject entirely
depend, without the proper means, the fun
damental laws have made various and moft
effectual provifions for that purpofe. They
have conferred on it a right to command the
wills and ftrength, and perfonal fervices of
every individual, whenever neceffary, to afford
the protection due from it ; and this fubmiffion
of the wills and ftrength of every fubject to
the direction and command of the fovereign,
when neceffary to public peace and fafety, is
truly what is meant in law by the word Al
legiance. The fovereign authority for the fame pur
pofe is, moreover, veiled with a right to efta-
* " Therefore we enjoin and command you, that the fame
" G. and R. their perfons, families, poffeffions, and goods of
" every kind, you maintain, protect, and defend 3 not doing to
" them yourfelves, nor, as much as in you lies, fuffering to be
" done to them by others, any injury, trouble, lofs, violence,
" let, or damage whatfoever. And if any tiling be wrongfully
" or unjuftly done againft them, that without delay you caufe
" it to be remedied, and them reftored to the ftate they werel
in before the injury done, as you know you, and every of
" you, ought to do." E a blifh

[ 28 ]
blifh courts of juftice; raife armies, fit out fleets,
and to take and difpofe of the property of the
fubject .to pay for their extraordinary fervices.
Thus the fubject not only gives up his inde
pendence, his will and ftrength, to the fove
reign authority, but pays in money a bonafide
conf deration for his protection *; and the State
being thus furnifhed with all the means which
human wifdom has been able to devife, is, be
yond all poffibility of doubt, indifpenfabljr
bound by law to afford it to every fubject,
without refpedt to perfons. We fay, to every
fubject, becaufe every individual who compofes
the fociety is .a party to the act of union ;
which is formed by each individual covenant-*
ing with the reft, and the refl with him, to
unite their wills and ftrength in one Sovereign,
for the purpofe of fecuring their individual as
well as general protection. The fovereign
authority alfo engages to afford this protection
to every individual indifcriminately, as well
as to the whde fociety ; for as the whole is
made up of the individuals, it cannot defend
the whole without defending every member
which compofes it. Befides, in purfuance of
this covenant of individual protection, every
* " Taxes are contributions paid by the fubjedts to the
" ftate, for the prefervation of their lives and properties."
Burlamaq.. part iii. 6.5. f. 10.. fubjeft,

[ 29 ]
fubject pays his juft proportion, according to
his abilities, towards the fupport of the fo
vereign authority and the protection which it
is bound to afford him, and therefore is equally
entitled to it with the reft of his fellow-fub
jects. Hence it is evident, that a State can
not, with the means to which all contribute
their juft proportion, give protection to one
part of the fociety,' while it abandons another,
without fubverting the defign of the union,
and manifeftly violating its folemn engage
ments, its duty, and the evident principles of
reafon, juftice, and law.
But this right to command the perfonal
fervices of the fubject for the common protec
tion, is not in any ftate arbitrary and unli
mited. It cannot be exercifed when the pub
lic good and fafety do not pofitively require
it ; but when there is fo much danger as to
require more than the ordinary aids of the
army and navy, the Sovereign is bound to
call upon all to difcharge their allegiance, in
giving their fervice to protect the fociety ;
and becaufe all are interefted in the public
fafety, and of courfe bound to defend it, all
are bound to obey the fummons *. And if
fome
* His Majefty, when the American oppofition broke out
into " open and avowed rebellion," well underftanding this
law,

C 30 ]
fome perform their duty to the State in times
of fuch danger, the faithful fubject ought, by
the moft evident principles of reafon and law,
not only to be rewarded for his extraordinary
fervices, but to be fully compenfated for the
lofles he may have fuftained in confequence
of his fidelity and zeal in fupporting the com
mon fafety, by thofe who enjoy the benefit of
fuch fafety, without having fuftained any fhare
in the dangers and foffes incurred in the pre-
fervation of it.
Nor can the fovereign authority difpofe of
the property of the fubject by levying taxes,
when the public wants and neceffities do not
demand it. And when they call for, andjuf-
tify it, it cannot be lawfully done with par
tiality or injuftice. For this right extends no
further thari to take the fum neceffary, and of
that, only a reafonable and juft proportion
front each individual according to his ability.
It cannot lawfully take from one diftrict, and
exempt another, nor from fome particular
perfons, and except others. " The fubject
law, and. the nature of the fubjedts duty under It, declared,
" That all the fubjedts of the realm, and the dominions
<* thereunto belonging, were bound by law to be aiding ancj^
« affifting in fuppreffing it *," and therefore called vponall
to unite for that purpofe. x_^
* See the proclamation in the Cafe, ch. 2.
18 « muftj

[ 31 ]
** muft be equally taxed. As every fubjedt
equally enjoys the protection of the Go
vernment and the fafety which it procures,
fo it is juft that they fhould all contribute
to its fupport in a proper equality. Every
" man therefore ought to be taxed according
" to his income, both in ordinary and extra- I
" ordinary exigencies *."
The fovereign authority is moreover veiled
with a yet more extraordinary power, to en
able it to fulfil its folemn covenant of protec
tion. It may feize upon or deftroy the pro
perty of the fubject, when the necejftties of the
State and the public good require it. But
this power, like that of taxation, is not defpo-
tic and arbitrary, but limited and conditional.
For nothing lefs than the general interefts and
fafety of the State can juftify the exercife of
it ; and even then it is conferred upon this
exprefs condition — this poftive and explicit
obligation and injunction, to indemnify and
make good the loffes of the fuffering. indivi
duals out of the public revenue, to which all
contribute. The reafonablenefs and equity of
this condition will be evident, when we re
flect on the nature of civil fociety ; the intent
of which is, that all the individuals who have
* Eurlamaq. p. iii. c. 5. f. 14. entered

[ 32 J
entered into arid compOfe the union, fhafr
partake of its protection, and of every benefit
refulting from it. Nothing therefore can be
more juft, than that not only the expences
arid burthens neceffary to maintain it, but
every facriftce made to preferve it, fhould be
equally diftributed and fuftained by all.
If this were not the law of every civil fo
ciety ; if the fovereign authority poffeffed a
right to take or deftroy the property of the
fubject, which it is bound to protect, without
making a juft compenfation for it, the very de
fign of the union would be fubverted^ and
mankind would have committed extreme folly
in changing a ftate of nature for civil fociety ;
becaufe in that ftate, 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 punifh the aggreffor for the perfonal
injury, but to make reprifals for the propertfy
of which he had been robbed or defrauded.
But in fuch a civil fociety as we have fup-
pofed, force and injuftice would he fanctioned
by law, and mankind would be in a much
worfe condition than in a ftate of nature,. The
injured and ruined fubject could make no
reprifal upon the fovereign authority. He
would

[ 33 1
¦would remain, without a poffibility of remedy,
under the load of oppreffion. But fo far is
civil fociety from countenancing fuch extreme
wrong, that the principle of equal juftice and,
individual protection we have before laid
down, is ftamped in the very nature of it, and
pervades all its regulations, whether they be
its civil infiitutes or fundamental laws. To
demonftrate this truth, we fhall produce, in
order, examples of both.
In the civil infiitutes of every ftate, it is an
invariable axiom, that all facrifices of proper
ty made by individuals for the public benefit
or accommodation, fhall be paid out of the
public revenue.
If houfes be pulled down, orpieces of ground7
taken from an individual for the King's high
way, an inqueft fhall be ordered to afcertain
the value, and the amount fhall be paid out of
the public purfe.
If land be taken by the State from an indi
vidual to erect a public building on, for any
general public ufe, fuch as palaces, courts of
juftice, or public offices, compenfation fhall be
made to the owner out of the public treafury.
So if the property of an individual be taken
for the benefit of a county, corporation, or
fome particular private perfons, it fhall be paid
F fox,

[ 34 1
for by thofe to whofe ufe it is applied-, and
who enjoy the advantage,
If this ftyle of equity pervades the civil in*
ftitutes of all civilized ftates, it would be;
ftrange indeed if we fhouW find that their
fundamental laws were lefs reafonable. and juft;
and flranger ftijl, were they fo perfectly ini
quitous as to juftify political robbery in the
fovereign authority, the foyrce from whence thq
pureft flreams of beneficence and juftice ought
to flow, by authorifing it to take from or giveaip
the property of individuals, which it is bound;
by the mbft facred of all obligations to pro
tect and defend, -without making an adequate
fompenfatipn ; and that too for the benefit of
others, 'Who are no more intitled to its pro*
tedtion and juftice, than the fuffering and
defboiled individual. But this never was
the law of- any ftate, as the following author
rities of the moft learned authors pn politic
Jaw will irrefragably demonftrate,
Puffendorff, when treating of the ftinda-t
rnental law of tratfemdental propriety i or emit
pent- domain, by which the fovereign authori
ty of every ftate is. authorifed to take, deftroy,
or difpofe of the property of individualsy wheri
-ft becomes neceffary to the public good or fafety.

t 35 ]
&rid by which it is bound to make compenfation,
to the owners of it4 fays,
" It will be confeffed, agreeable to natural
u equity, that when contributions are to be
*' made for the preferVation of fome particular1
" thing, every man fhould pay his quota, and
u one fhould not be forced to. bear more of the
" burthen than another j and the fame holds
,k to be equity in commonwealths. But becaufe
" the ftate of a commonwealth may be fuch
" that either fome prejftng necejftty will not
u give" leave, that every fubject 's quota fhould
¦*' be ¦collected. Or elfe that the public may be
" found to want the ufe of fomething in the
" pofTeffiori of fome private fubject, it muft be
" allowed, that the fovereign power may
" feize upon it to anfwer the necejftties of the
** fiatei but then, all above the proportion
" that wlas due from the proprietors, is to be
w refunded to them by the reft of the fub*
«jects*>" The fame author gives the following ex
amples of the right of the fovereign authority,
to deftroy or refume the property of the fub
ject, in virtue of this law :
* Puffendorff, b. viii. c. y. f. f,
E 2 "Afo«

t 36 ]
" A fovereign may proftrate the houfes of
" fences, or lay open the fields or gardens of
" private men, to make room for ramparts or
" ditches, if it be neceffary to the fortification
" of a town.
" In fieges, houfes or trees maybe pro-
" ftrated or cut down to deprive the enemy
*' of fhelter.
" If private men lay by materials for their
" own ufe, fuch materials may be feized and
" made ufe of in fortifications.
" If, in a general fcarcity, the ftorehoufes
" and granaries of private men are fhut up,
*' they may be opened to fupply the neceffi-
" ties of the people.
" The private coffers of individualsj"Who
" -fee the ftate in extremity, and will not lend
* their money, may .be feized;i -and rifledi
**; Cyrus did to, engaging to mdie refutation,
" and it was held lawful and juftifiable. ,B«t
" the conduct of the indebted and bankrupt
" Csefar, in compelling the Romans to lend
*' him money, and -refpfv'ing nevier to pay it,
^c has been ever adjudged unlawful', not b€-
*' catife h6 compelled' them to make the loan,
*' but becaufe he refolved not to pay it.
" And if there is no other means of faving
J* a fociety, but that of defiroying a part or
" diftritl

t 37 1
'* difribt of it, the Sovereign may lay it walte
" and remove whatever may be ferviceable to
" the enemy out of it."
All thefe acts are juftifiable under the
fundamental law of eminent domain, or tran-
fcendental propriety, common, indeed effen-
tial, to all focieties. " But, however," fays
Puffendorff, when treating of them, " with?
" out difpute, they that have loft or facrificed
*' their fortunes to the public fafety, in fuck
" extremities, ought to have a reflitution or
" fatisfabtion made them, as far as poJ/ible%
" by the commonwealth."
Burlamaqui, when treating on the fame
fubject, fays, " That it is really a maxim of
" natural equity, that, when contributions*
*' are to be made for the necejfities of the fate,
" every man ought to pay his quota, and one
" fhould not be forced to1 bear More of the
" burthen than another.
" And fince it may happen that the preff-
" ing wants of the ftate may oblige the Sove<-
"' reign to feize on fomething in the poffef-
" fion of fome private fubject, it is juft in
" thefe cafes, that the proprietors fhould be
" indemnified either by their fellow-fubjects, or
u by the Exchequer, for what exceeds his pro-
*' per fhare^ at lead as near as poffible*."
* Burlamaqui, Pol. Law, part 3, c. 5. § 27, 28.
§ Having

. t 38 ]
ttaving thus fhewn that the State is bound
Tby law to make compenfation for the pro*
perty of the fubjedtj taken oy deftrsyed by the
fovereign authority in cafes of neceflity, of
the public benefit or fafety ; we will next in
quire, what the law is, where that authority is
obliged1 to give up by .treaty the property of th£
•fefepct ^w-itrh the territory ceded*
- All authors on the fundamental laws of*
<&vii fociety agree, that the fovereign autho-
*lty has no right to alienate a province, witb>-
eut impending public neceflity, againft the
fconfent of the whole nation,, more efpecially
without the confent of the province intended
tolbe alienated, although all the other diftridts
fegree to it, nor without the^oajgni oi^M£i$
fotan^of that province. Thereafons are, the
iinion of civil fociety is formed by a mutual*
{joint; arid perpetual contract, to which the
province and every individual are parties,
jointly iriterefled in, land equally intidedtoj
the pr&tig&ion.and every other' benefit flowing
feomiti' with thofecof the other dift»icts j and,
of courfe, the union xanriot be iliffolved &£
impaired by the pther.tto*pafties without thes*
confent. The right of plurality of fuffrageS,
which- is proper and juft in the decifion of
other matters, camlet therefore extend fo fa*
as to diffolve or violate the union 4&us formed

E 39 1 ,.-.
by all, nor to cut off from the body politic of
the State, thofe who have not violated their
engagements under the laws of the fociety.
Nor can any fubjedt 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 punifhment for
crimes committed againft the laws. *' For as
*' no fubject can lawfully take the crown from,
" a prince without his confent, fo neither has.
*' a king a power to deprive a fubject of his
(i right or property, or to fubftitute another
*' fovereign over him without his confen£t*.,,
But to this law there is one, and only one,.
exception, founded on the law of neceffity,
which is fuperior to all other human laws, and
binding on the fovereign and fubjedt of every
ftate. By this law, the fovereign authority,
which is bound to prefer the general fafety to
that of a part, " when there is imminent
" danger of perifhing, or fuffering extreme
** evil, if they continue united," may give up
a part to fave the remainder; but, in this
cafe, the nature of civil fociety, the mutual
and common benefits eftablifhed by its union,
and the protection and individual fecurity
which conftitute its effenee, together with
* Burlamaqui, part 3. c; 5. § $$. the

r 40 j
the equitable condition upon which this lav«r
pf neceflity Operates, all require that thofe
fubjedts who have thus innocently fuffered by
an act of the State, for the benefit of their
fellow-fubjects, fhould be fully indemnified by
thofe who have been benefited and faved by
the facrifice.
But, in fuch cafe, what becomes of the
people refident in the territory ceded ; of their
'perfonal fafety, of the protection of their pro
perty, and of their political rights, liberties,
and immunities, derived from, and fecured to,
them by the union, and which the fovereign
authority is bound to prefetve inviolable $
Has any State a right to cede them with the
territory, by virtue of this law of neceflity?
By no means; for this law extends only
to a conditional difpofal of the fubjedts pro
perty : and therefore, although a State may
lawfully give up a part of its territory to
fave the remainder; yet it cannot, under
any law whatever, difpofe of the perfons and
political rights of the people refiding in the
part ceded to another fovereign. For if fuch
was the law, it might transfer them to the
iaoft defpotic tyrant, and reduce them to the
moft abject flavery. It cannot transfer the
duties which they owe to the fociety, nor its
OWE!

r v i
own obligatioris, as the fovereign truftee and
protector of their rights and liberties : it can
not transfer their allegiance, nor abandon the
protection of their rights and privileges with
out their confent, while they obey the laws
and perform the duties of citizens. And
therefore, when fuch ceffions have been made,
it has been cuftomary to ftipulate, that if the
fubjedts refiding in the territory ceded, choofe
to adhere to the union, and enjoy the rights
they are entitled to under it, they may leave
the territory given upi and retire to the fo
ciety of which they are members. And when
the fubject has made his election, by taking
the benefit of fuch ftipulation, it has ever been
the unifofrn practice of States to receive them,
and to continue to them all the rights, liber
ties, and immunities to which they were en
titled before the ceflion, and more efpecially
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 fociety.'
Any thing fhort of this, no necejftty, how
ever extreme, can poffibly juftify ; becaufe
mankind never yet conferred on the fovereign
authority a right to give up or injure their
perfons, or to difpofe of their rights and pro
perties, while they performed their engage-
G ments,

r 4* i
ments, without making. xhemfuUtbrnpenfatien ;
and had fuch a transfer ever been made,- it
would have been void in itfelf, as the perfons
making it could not poffefs fuch a right under
the laws of nature eftablifhed by God himfelfc
Thefe laws, on the contrary, enjoin mankind,,
under the heavy penalties of mifery and want,.
to confult and purfue the means of, their owtt
prefervation, welfare, and happinefs,; and no
human covenant, no neceflity, can juftify a,
violation of them. Hence alL the rights and*
powers ever yet cpnf erred on; any fovereign;
authority, by the union of civil fociety, have,
been conferred in truft, and under the, moft
facred obligation entered into on the part
of that authority, to defend, protedt, and
preferve their perfons from injury; and not
to devote their lives to ignominious death,
nor to difpofe of their rights and properties
without making full compenfation, while they
behave with fidelity to the laws of the fo
ciety. This truth will appear evident, not only
from the laws of the Britifh conftitution, but
from every authority to be found in authors
who treat on. politic law, and, the eftablifhed
principles of, every regular Stated That

I 43 1
That the Crown, in the Britifh conftitu
tion, is not only bound to defend the fubjedt ;
in .his perfon, but alfo in his goods and chat
tels, rights and privileges, will appear evident
from the writs of protection I have before
cited, and many others to be found in the Re-
gifter ; and the law is equally fettled, that if
the State fails to afford this protection, it is
*', bound to place the fubject who has fuffered
" through a want of it, in the fame fate he
" was in before the injury received ;" that is,
to make him adequate compenfation. For the
words of the writs in the Regifter, of folio 25,
26, as I have before faid, are, " Etfi quid in
w prejudicium hujus protect ionis etfalvce gar dice
w nofitrce attentatum inveniretis, ad flatum debi-
tum reducatis.,> And, " Etfi quid eis for isf ac
tum reformari faciatis.'' And, " Etfi quid
forisfabtum, injuriatum vel contra eos indebite
" attentatum fuerit, id eis fine dilatione corrigi et
" ad flatum debitum reduci facialis, prout ad
** vos et quamlibet veftrum noveritis pertinere*
To thefe authorities we will add that by
1 1 H. VII. c.i. it is declared, " That by the
" common (fundamental) law of England,
** the fubjedts are bound by their duty of al-
." legiance, to ferve the Prince againft every
*' rebellious power and might. And that
G a. " what-

[ 44 ]
*« whatever may happen in the fortune
" of war, againft the mind of the Prince
" (to the prejudice of his fubjedts), it is
" againf all LAW and good confidence, that
" fuch fubjedts attending; upon fuch fervice
" fhould fuffer for doing their true duty ofallc-
^ giance. Upon this ftatute, fo important to the rights
both of the Crown and, the fubject, Juftice
Forfter, whofe authority will ever he refpected
in courts where the principles, of juftice are
underftood, makes the following obfervatipn#:
" Here is a clear parliamentary declaration,
*' that, by the ancknt conftitution of England,
" founded on principles of reafon, equity, and
" good confidence, the allegiance of the fubject
" is due to the King for the time being, and
" to him alone. This putteth the duty of the
" fubject upon a rational and fafe bottom;
" and he knoweth that allegiance and prqtee-
" tion are reciprocal duties." That is, in other
words, that the fubject " knoweth" that the
State is as perfectly " bound by the principles
" of reafon, equity, and good confcience,"
principles, the force of which no human law
can fuperfede, to protect and defend his per-
fon and property againft all violence and in-
•juries, as he is bound to obey^ and aflift the
Prince,

[ 45 3
Prince, in defending the State in time of need
and danger ; and that if he fails in the protec
tion, and violates his engagement, he is bound
by the fame principles to make the fubject ade
quate compenfation. Indeed, this is the law of
every regular State, as will appear from all the
books on the fundamental laws of civil fociety.
Puffendorff therefore fays, " That under the
" law of Eminent Domain (which alone
" gives the fovereign authority a power over
" the property of the fubject), if a Prince is
** compelled by neceflity to alienate in a treaty
" a part of his dominions, the loffes of indi-
*' viduals, whofe fortunes are facrificed to the
" national fafety, muft be made good by the
" nation.
" What power (continues the fame author)
*' the commonwealth has to cede the goods
*' of private fubjedts upon a pacification, muft
" be difcovered from the nature of tranfcen-
." dental property; upon the force of which
*' the goods and fortunes of private men may
** be given up whenever the neceflities of the
*' State and the public intereft require it : but
with this conf deration, that the ftate is ob
liged to make good fuch loffes to the fubject
out of the public revenue. But whether a
#«¦ particular fubjecYs goods may be ceded, or
6 ** taken

[ 4* ] ,
" taken from him, muft in a monarchy be
" determined by the Prince ; and the whole
" body of the fubjebts, upon his command, i^ _,¦¦¦¦¦
" obliged to make fatisfadtion to the perfons
" that have fuftained lofs upon the public ac-
" count beyond his own- proportion."
Burlamaqui, when treating on the fame law,
fays — " As to the effects of a private fubject
" ceded with the territory, the Sovereign, as
" fuch, has a tranfcendental and fupereminent"
" right to difpofe of the goods and fortunes
" of private men ; confequently he may give
" them up as often as the public advantage
" or neceflity requires it; but with this CON-
" sideratioj*, that the State ought to in^-
" demnify the fubject for the lofs he has fu£>
" tained beyond his own proportion."
M. de Vattel afferts the fame law, and- tells
us, " That the right which belongs to the
*' Society or the, Sovereign, of difpofing, in
" cafe of neceflity, and for the public fafety,
*' of all the wealth contained in the State^
" is called the Eminent Domain. It is evi-
" dent that this right is, in certain cafes^
** neceffary to him that governs, and confe-
'* quently is a ,part of the fovereign power ;
•* when, therefore, it difpofes, in a cafe of
fc neceflity, of the poffeffions of J a commu- « nith

I 47 1
** nity, or of an individual, the alienation will
" be valid. But Justice demands that this
" community or this individual be recom-
" penfed out of the public money ; and if
" the Treafury 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 OVER,-
" BOARD TO SAVE THE VESSEL."
Authorities from every other author on the
fundamental laws of civil fociety might be
adduced to fupport the fame truths ; but thefe
are fo plain and decifive, that more would be
fuperfluous. They inconteftably prove, that
the fovereign authority of every State is
bound, in all events, to protect the fubject-—
that the right vefted in it, of difpofing of the
fubjedts property in a treaty or pacification,
is not arbitrary, but limited and conditional,
even in an abfiolute . monarchy ; that it cannot
be lawfully exercifed but when the neceflities
and fafety of the State require it, and . even
then it is given with this confiideration and
facred obligation infieparably annexed, to in
demnify the fubjedt for the lofs he has fuf
tained

[ 4§ 1
tained in confequence of it. To this we will'
; add, that it is impoffible for a mind open to
' the convidtion of reafon and truth, to con
sider thefe authorities, without confeffing that
they perfectly embrace and evidently fupport
the claim of the Loyalifis, whofe property has
been firft loft 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 therii to
have been done, by the Britifh troops, and1 as
the price and purchafe of the national peace
Grid fafety. Their cafe indeed far furpaffes in
public merit, and has a much higher demand!
upcin the honour and juftice of Parliament, than
the cafes to which the preceding authorities
apply * ; for thofe authorities ftate no peculiar
merit in the fufferers-^no folemn affurances
of protection and indemnity pfevioufly given
by the fovereign authority— no extraordinary
exertions of the fuffetefs in the commoS
caufe, nor arty dangers encotrnteredin fop*
porting the rights of Parliament: but1 the
fight of compenfation and inderrinity is -de
clared upon 'the mere ceflion of the property
of the fubject With the territory; and upon'
.? See Chap. V. the

'[ 49 ]
the law and equity which enjoin the State to
diftribute the loffes, burthens, and facrifices
fuftained on the public account, among the
whole fociety who receive the benefit refult
ing from them. CHAP. III.
On the Ufage of Nations, under - the funda
mental Laws of Civil Society.
HP H E Sovereigns of Europe, well under
ftanding the obligation they are under,
to protect the property of the fubject in all
events, and in the loft extreme, have not failed
to do it whenever it has beenpoffible in every
pacification. To this end, they have infilled
on, and always obtained, a ftipulation, that
the individuals of the diftrict ceded fhould be
reftored to their property, if taken from them ;
if not, that they might difpofe -of it to the beft
advantage, and return with the proceeds to
the fociety of which they were, fubjedts *.—
This ufage has been adopted for many
centuries, in order to fave the expence of
making the compenfation due, which other-
wife the States could not avoid, without
violating the facred and effential laws of their
rejpebtive fiocieties.
* The cafe of the Loyalifts only excepted.
H In

[ 5° 1
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 juftice was fulfilled.
The war had continued near half a century.
The attainders and profcriptions were nu
merous ; the eamityof the parties during the
war was violent,' and yet the fovereign parties
to the pacification, confcious of their duty to
obtain all poffible protection for their fubjedts
who had fuffered by the war, exprefsly fti-
pulated, " That all real efates which had
" been feized, expo fed to faie, or profcribed
"j on account of the war, fhould be reftored
"**:to their former owners; and that for all
" goods feized and fold by the public officers,
*' the owners fhould have return or receive
" (a perpetual annuity of) fix 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 reftored to the fa
mily of Hamilton, and the honours and do
main of Aubigne to the family of Richmond.
In the definitive Treaty between the Em
peror and the States General, the city arid
caftle of Dalheim, and other towns and terri
tories, Were ceded to the Emperor, and other
towns.

t 5i ]
towns and territories were ceded by the Em
peror to the States of Holland. But the high
contracting parties, well knowing that they
could have no right to facrifiee the intereft: of
individuals to the emolument of fociety, with
out ample indemnification, agreed that the
officers and others on duty in the country of
Dalheim, fhould have pcnfions equal to their
falaries at the charge of the country— and
the Mayor or Greffier of the High Court of
Dalheim, as alio of the Lordfhips ceded to
his Imperial Majefty, who were not con
tinued in their employments', fhould receive
a reafionable compenfation, or have the liberty'
of felling 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 fo fenfifeie
of the protection due to his fubjedts, that it
was infilled on, and it was accordingly agreed
by the Treaty, that the Canadians fhould re
tain their property, and that fuch as did not
chufe to become the fubjedts of Great Britain,
but wifhed to return to their former alle
giance, fhould have a right to difpofe of it to
the beft advantage, and to tranfport its pro
duce unmolefted to France. H 2 At

C sz 1
At the fame time the like ftipulation was*
made by the French Monarch in the . ceffiOQ)
of New Orleans to Spain.
By the fame Treaty, in the ceffion of the'
Floridas to Great Britain, the fame ftipulation
was obtained by the King of Spain, in be
half of his fubjedts.
Upon this occafion the conduct of the,
Spanifh Monarch is an illuftrious inftance of
royal attention to the laws of civil fociety,
which regard the protection and fecurity of
the fubject : for after the furrender of the
territory,, finding that the Englifh fettlers
would give little or nothing for the property
of his fubjedts referved by -the Treaty, and
that of courfe they were ruined by his own
act, the act of ceffion, and therefore that he
had not afforded them the protection due by
the fundamental laws of fociety, he ordered
them to retire to his own dominions, and
on their arrival gave to every officer, civil
arid military, falaries equal to thofe they
enjoyed before the Treaty. He further made
therri compenfation for the property they
i had loft ; and to the common labourer,
his wife and children, even to the infant
at the breaft, he allowed penfions for their
fupport. Thefe penfions, being in their
nature

t 53 1
nature perpetual, would have been yet con
tinued, had not this Monarch obtained, by the
laft treaty of Paris, the Floridas from Great
Britain. Upon this event the Spaniards, in
their turn, refufed to purchafe of the Britifh
fettlers, and in a manner compelled them to
leave their property, which they had greatly
improved, His Catholic Majefty, by a late
proclamation, has generoufly reftored thefe
improved eftates, to his fubjedts, the former
owners, their children and grand-children.
Thus the wings of the Sovereign hovered
over his fubjedts, and protected them in all
their diftrefs. He felt the high obligation he
was under to do it. He confidered the value
of a number of fubjedts to the fociety over
which he prefided. He faw the force with
which this example of fovereign juftice would
fecure the confidence of his people, and bind
their fidelity to him on all future occafions.
Nor did he for a moment put the fum,
though large, he was obliged to draw from
his public treafury, in competition with the
public benefits which would be derived
from it.
Such has" been the ufage of States, when
ever a ceffion of territory, and with it the pro
perty of the fubjedt, has been found neceffary to

[ 54 I
to the common fafety. There was no fuch*
refervation or reftoration of the property of
, the Loyalifts, no indemnity whatever obtain-
| ed ; and had there been nothing mentioned
| reflecting them in the treaty, it would have
{¦ been more to the honour of the Britifh go-
' vernment, than that humiliating ftipulation,
by which it was agreed, that the Loyalifts
fhould have " the liberty to go to the United
" States, and there to remain twelve months
" unmolefted in their endeavours to obtain
" reftitution, and that the Congrefs fhould
" recommend to the States, to rePcore their
" eftates, they refunding the bona fide price
which the purchafer may have paid.**

tt

Here the Britifh State, which was bound to
obtain a reftitution of their property, if it
'could poflibly be done, procured " a liberty''
for them to folicit for it. They were fent by
the State which had granted their property for a
valuable confideration, to afk it of thofe whofe
right to hold it the State iifelf had folemnly
confirmed. They were fent by the State,
which they had faithfully ferved, and which
was bound to protect them, to feek for that pro
tection from States to which they were aliens,
whofe exiftence they had fought to prevent,
and who, from a principle of felf-pfefervation, were

I 55 1
were naturally . led to refufe it. And they
were fent by the State, which had deprived
them of their fortunes, and made them bank
rupts indeed, to bargain and pay in ready
money for thofe fortunes which it had appro
priated to its own emolument. For the flipu-
lated condition of the reftitution, fuppofing
it to be made, was, " refunding the bona
"fide price, which the purchafer of the ftate
** had paid for it ;" and this extraordinary
boon was to be humbly folicited for, of their
implacable enemies, without the leaft hope
of fuccefs, and without any poffibility of de
riving any advantage from it, had it been
obtained. The advantage which was fo repeatedly and
fanguinely defcribed, and expected from thofe
recommendations, has, however, been long
fmce fully effayed. A number of Loyalifts
have gone to the United States to obtain refti
tution of their property, under the recom
mendations of Congrefs ; and the effect has
been what the Loyalifts, and many Members
of Parliament, in their debates on the peace,
foretold. Inftead of reftoring them to their
property, the American States have not only
treated the folicitations for it with infult and
contempt, but have imprifoned the perfons of

[ 5^ ]
of the claimants, and afterwards banifhed
them under the pain of death.
As to the great body of Loyalifts, who were
not within the diftridts in the poffeffion of his
Majefty's arms, and who had equally demon
strated their fidelity and zeal in fupport of the
rights of Parliament, and rendered fervices
equally important, there was no fiipulation
whatever made in their behalf. They were
not even mentioned in the treaty; they there
fore could have nothing to expect from the
recommendations of the Congrefs or from any
other quarter whatever, but from the honour
AND JUSTICE OF HIS MAJESTY AND. PAR
LIAMENT.

CHAP. IV.
Of the Senfe and Declaration of his Majefty
and Parliament, on the Right of the Loyalifts
to Compenfation, when their Aid was thought
neceffary tofiupprefis the Rebellion.
TX7E can look nowhere, for the fenfe of
the two Houfes of Parliament, but-. in
their own records. Here we find the moft
clear and pofitlve decifions Upon the right of
the fubject to compenfation for injuries fuf-
1 8 tained

r si i
tained in confequence of his allegiance, and
through a want of the protection which the
State is bound to afford him by law.
The occafion of thefe refolutions were cer
tain tumults and infurrections " againft the
" authority of the Crown, and rights of Par-
" liament," which took place in America in
1764, as flated in the foregoing Cafe. The
civil and military powers of the State then in
the colonies, were either incompetent, or not
exerted, to protect the people. Sundry houfes,
and other valuable property of divers perfons
who had attempted to carry an Act of Par*
liament into execution, were deftroyed by the
'mob. After full confideration of thefe facts,
the two Houfes of Parliament
Refolved, " That an humble Addrefs be
" prefented to his Majefty, to require the af-
" femblies of the American provinces to make
" a proper recompenfe to thofe who Had fuf-
" fered in their perfons or properties in confe-
" quence of the faid tumults and infurrec-
« tions." In this refolye the fenfe of Parliament on
three points is manifeft : ift, That thofe who
had fuffered through a want of protection in
" their perfons or properties," were erJitLd to
I • a pro-

[ 58 J
" a proper recompenfe." For otherwife, it is.
not to be fuppofed that the two Houfes would,
infill that the Colonial Affemblies fhould make
it. 2. That the fubordinate governments of
the colonies, which had been veiled with the
proper powers, and had affumed the protection
of the fubject within their inferior jurifdic-
tions, were bound to make " a proper recom-
*' penfe" for injuries done to the fubjedt
through a want of their protection ; and*
3d. That his Majefty and Parliament were
bound by law to compel, if neceffary, the Af
femblies to make it. This is fully implied in
their right "- to require it*."
The two Houfes, however, fufpedting that
the Provincial Affemblies, in the then tumul
tuous ftate of the provinces, would not comply
with the requifition; and knowing that Par
liament, as the fupreme fource of power, pro
tection, and juftice, was bound either to com
pel a compliance, or to. make the recompenfe
• * The word require was adopted by the- Commons- inftead of
recommend, which was faid to be too hofe and difcretionary. And
Mr. Pitt, that great Statefman, approved of the requifitim
to make the recompenfe, by a refolve of the Houfe, faying,
it was building on. a rock that could', not be fhaken by the re
fractory andpeevifh humour of the Colonies; but, on the con
trary, might be eftabliihed and executed by an aft vindicatory
of their refolve, tf neglected, or not immediately complied with.
MS. Report. itfelf,

[ 59 ]
itfelf, at the fame time, and upon the fame
occafion, concurred and
Refolved, " That all his Majefty's fubjeds
" refiding in the faid colonies, who have ma-
" nifefted a defire to comply with, or to ajfifi
*¦' in carrying into execution any Act of Par-
" liament in the Britifh colonies in North
" America, have acted as dutiful and loyal fub-
" jebts, and are therefore entitled to, and will
" affuredly have, the favour and protection of
" this Houfe."
In the year 1767, when thofe tumults were
renewed, the two Houfes were more explicit,
if poffible, in regard to the right of the fubjedt
to indemnity for loffes fuftained in confequence
of his allegiance to the Crown, and his fup-
port of the rights of Parliament. And again
Refolved, " That all perfons, who, on ac-
" count of the defire they have manifefted to
" comply with, or to affift in carrying into
" execution any Acts of the Legiflature of
" Great Britain relating to the Britifh colonies
" in North America, have fuffered any injury
" or damage, ought to have full and ample
" compenfation made to them for the fame by
" the refpedtive colonies."
And left the colonies fhould not comply
with this act of public right, and the confi-
I 2 dence

[ 6o ]
dence of the Loyalifts in the ultimate juftice of
Parliament fhould be thereby abated, the Houfe
of Commons again
Refolved, " That all fuch perfons have
" acted as dutiful and loyal fubjedts, are there-
*c fore entitled to, and will affuredly have, the
" protection of the Houfie of Cotmnons of Great
" Britain."
It is impoffible- for a perfon cpnverfant in
the laws of civil fociety to read thefe refolves
without perceiving the following truths :
ift. That they are founded on, and decla
ratory of, the fundamental laws of the Bri
tifh conftitution, which have eftablifhed the
reciprocal obligations, duties, and rights, be
tween the fovereign authority and,the fubject,
2d. That in and by thsfe refolves the two
Houfes of Parliament have exprefsly afferted .
the right of the fubject who had fuffered in his
perfon or property, in confequence of his
only " manifefting a defire" to comply with
an Act of Parliament, <s to ample compenfia-*
.«« tion:* 3d. That the two Houfes have, by their
repeated refolutions, in the moft unequivocal
manner, pledged themfelves to do juftice to
the fubjedt upon the right fo confeffed and af
ferted, by the moft folemh affurances of pro
tection

[ 61 ]
tectlon and indemnity for the " injuries and
** damages fuftained."
4th. That the protection thus folemnly pro-
mifed is not a matter of favour depending on
the pleafure or difcretion of the two Houfes,
but a right; or, to ufe the word of the re
folves, a " title," incontrovertibly founded
in the fundamental laws of the State ; a right
coeval with the Britifh conftitution, and as
firmly eftablifhed as any one right of Parliament
itfelf; and therefore a right which the two
Houfes are bound, were their folemn af
furances out of the queftion, by the moft fa
cred principles of honour and juftice to fulfil.
But it may be here afked,. What .did the
two Houfes mean by protection ? The anfwer
tq,this queftion is, That they could mean no
thing elfe but that " protection" to which the
fubject has a right under the laws of the Bri
tifh conftitution, and indeed of every civil fo
ciety, which is by no means ambiguous. //
is tbat fecurity of perfon and property, that
fhield or cover from injuries, of which man
kind were defitute in a ft ate of nature, and to
obtain which he gave up h'u natural liberty, ana
entered into fiivil 'fociety. The word itfelf is
derived from the Latin term protego, xoffjelter,
to cover from evil. This important bleffing, upon

t 62 ]
upon which the fafety and happinefs of the
fubject entirely depend, is fecured in the con
ftitution of every State by various means and
by various fources ; from the military efta-
blifhment, from the civil courts of juftice, and
in cafes where thefe are incompetent, from the
fovereign authority. The King is bound to
protect the fubjedt in the poffcffion of his pro
perty, by the military power, when neceffary;
but the courts of juftice and the two Houfes of
Parliament are bound to give him " protection
" for injuries fuftained, for property loft or
M deftroyed, or given up by the State." And
this can be done only in the mode of compen
fation ; in the courts of juftice, by com
pelling the perfon who has done the injury to
make good the damages; and in the two
Houfes of Parliament, by giving that indem
nity and compenfation which are due to the fub
jedt by the laws of the State.
But were the word protection of ambiguous
meaning, we could not be at a lofs for the
fenfe in which the two Houfes have ufed it.
Their own refolves declare it to be " a proper
" recompenfe, full and ample compenfation,
" which thofe who have fuffered any injury
" or damage, on account of the defire they
" have manifefted to ;comply with any acts
" of the Britifh legiflature, aught to have, are
1 4 " entitled

E 63 1
•* entitled to, and will affuredly have, from the
" House 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 fociety, or
in the refolutions and acts of the Britifh Par
liament, means, " reftitution," " fatisj "action ,"
" indemnity:'' " recompenfe:' " compenfation:'
Grotius, when treating. of the right of the fo
vereign authority to give up the property of
the fubject, calls it, " refiitution," " faiisfx-
" tion;' Burlamaqui, "indemnity, and in-
" demnifying the fubject for the injury fiujlained "
and Vattel, " recompenfe out of the public
** money.'' Indeed the protection thus declared to be
the right of the fubject, and folemnly pro-
mifed by the two Houfes, can be nothing but
the fame which was given by Parliament to
the citizens of Glafgow for their loyalty, m
putting that city in a pofture of defence againft
the rebels, which was a full reimburfment ofi
the fium expended. It is the fame which was }
given by 4 Geo. I. to all perfons who had j
continued faithful to his Majefty, and whofe|
houfes and goods had been deftroyed either by
the rebels, or the King's army, in Scotland or
Lancafhire, and who were "fully reimburfied, " and

[ 64 ]
" and repaid their loffes by the refpeBive Ex-"
" chequers of England and Scotland." It is
the fiame which was given to Daniel Camp
bell Efq;. whofe property had been deftroyed
by a mob, on " account of his promoting an
"act for laying a duty on malt, who was
" paid his great loffes and damages, clear of
" all deductions:' It is the fame which was
granted to Dr. Swinton, for houfes deftroyed
at Cheftef, in confequence of the preceding
rebellion, who was paid for therri out of the
public aids granted to the Crown. And it is
the fame which was given to the Duke of
Montagu, the proprietor of St. Lucia, when
the Britifh government found it neceffary to the
peace and intereft of the nation to cede that
ifland to France, " who was amply recom-
" penfied for his lofs, both in honour and re-

" venue."

From the fenfe and declarations of the two
Houfes of Parliament, we will pafs to thofe
of his Majefty, which we fhall find in his
Royal Proclamation, flated in the preceding
Cafe, and drawn up by the then Attorney and
Solicitor Generals, now Lord Thurlow and
Lord Loughborough. Here the opinion of,
his Majefty on the fundamental laws of the
Britifh conftitution,- and the right of the fub ject

£ 65 j
jedt arifing from "them to protection and in
demnity, will appear to be clearly the fame
with that of the two Houfes of Parliament ;
and we mfay certainly conclude, that his Ma
jefty's deliberate judgment upon the law of
the land and the right of the fubject, thus
aided by the advice of his privy council, and
of the moft eminent judges of the law, can
not le'ffen, but will corroborate, that of the
two Houfes. From a little confideration of
.this proclamation, the following matters are
either exprefsly or implicitly afferted and
declared. i ft. " That an open and avowed rebellion *
*' exifted in his American dominions."
ad. " That not only c all his Majefty's
" officers, civil and military, were obliged
-*' to escert their utmoft endeavours to fupprefs
" the rebellion,' but all the fubjebts ofi his
" realm, and the dominions thereunto belong-
*' ing, were bound, by law, to be aiding and
" affifting in the fivppreflion of it."
'3d* That his Majefty having thus clearly
pointed; out the duty of the fubject, in order
to prevent their " neglecting -or. violating it
*' through ignorance thereof;" he exprefsly
forbids them to admit " any doubt ofthepro-
" tebtion which the law wjll afford to their
v loyalty and zeal.'' \\
K 4th.

[ 66 ]
4th. That the protection which his Majefty
has fo unequivocally declared, to be the law
ful right of the. fubjedt, can mean nothing elfe
but what the law means, which,; as we have
before fhewn, is a reftitution of the property
loft, if regained by; the State; or if loft
through a want of the protection due, or given
up by the State, recompenfe, indemnity, arid
compenfation for it. And,
5th. That his Majefty, fupported by the
preceding refiolutions of the two Houfes of
Parliament, and the law of the land, has, in a
manner the moft folemn, pledged his ROYAL
faith to every fubject who fhould, during
the rebellion, difcharge his duty with " loyalty
" and zeal," by declaring in his royal1 wif-
dom, that to thofe " who mould affift- in fup-
" prefling the rebellion, the law would, witK-
" out doubt, afford protection."
: ..¦¦- .-. < tV, - *»
But it may be afked to wjhom were, theft
declarations and folemn affurances made by hij
Majefty arid; Parliament ? It was from the
year 1764 to 1782, that the unlawful, refift-
ance to the ** authority of the Crown,r and
w the rights of Parliament," was continued,
It was in 1764 arid 1767; that the refolution*
of Parliament were rnade. The latter' were
exprefsly directed to ''his Majefty's fubj^db
" refidirrg

¦E 67 ]
" refiding in the colonies," to incite them to
fupport that authority and thofe rights. And
it was in 1775, when the fame lawlefs re-
fiftance broke out into " open and avowed
" rebellion,'' that his Majefty iffued his pro
clamation, calling on all his fubjedts to aflift
in fuppreffing it. Now let the fact be en
quired into, and it will readily appear, that
the American Loyalifts are the very fubjedts
defcribed in the proclamation and refolves;
the perfons they were pointedly intended to
encourage, and who, placing the utmoft con
fidence in them, have fully complied with the
duty, required of them by his Majefty and the
two Houfes, and of confequence the identical
perfons to whom the faith of Majefy and the
honour and juftice of Parliament have been
folemnly pledged for their protection and
indemnity. Indeed it has already appeared to the Com
miffioners of Inquiry, appointed by Parlia
ment, that thefe unfortunate but faithful
fubjedts of the Britifh Crown have not only
Tnanifefted a defire to comply with, and to
affift " in carrying into execution the acts
" of the Britifh Parliament," in ftrict con
formity to the Parliamentary refolves and the
Royal command ; but with a degree of for-
& 2 titude

[ 68 ]
titude wliieh no. darigers could abate, arid
with a. loyalty and zeal unprecedented in the
annals of nations, have rifked their lives, and
been deprived of their fortunes, in direct con-,
fequence ofi thofie refiolves, and their obedience
to the command of their Sovereign. A
number of them have, moreover fuffered the
moft ignominious deaths.; others!, and not a
few, have been confined, and perifhed in
loathfome dungeons and polluted mines, and
many have been aflaflinated, and barbaroufly
murdered-.. And when, the State, ought vto
have regained their property, and .reftored it
to thofe who furvived, and to the widows
and orphans of thofe who \_hsiS virtuoufiy
perijhed in the caufe of their country, it was
given up as the price a.nd purchafe of peace
for their fellow-fubjects, who have been neat
five years in the poffejfton of the benefits and
hlefftngs .purchafied by tbpt fiacrifice. And yet
thefe faithful, fubjects have been thus deprived
pf their property near twelve 'years, and
near five years b.,ave, elapfed fince the comr
penfation due by law ought to •havi
been made.
Jr. is well known that this delay of juftice
has produced the moft inelancholy and Shock
ing events. A number -of the fufferers haveh?eri

[ 69 ]
heen driven by it into infanity and become
their own deftroyers, leaving behind them
their helplefs widows and orphans to fubfift
upon the cold charity of ftrangers. Others
have been fent to cultivate a wildernefs for
their fubfiftence without having the means,
and compelled through want to throw them
felves on the mercy of the American States,
and the charity of their former friend's, to
fupport that life which might have been made
comfortable by the money long fince due to
them by the Britifh Government ; and many
others, with their families, are barely fub-
fifting upon a temporary allowance from
Government, a mere pittance when compared
with the fum due to them.
May not fubjects who have thus fuffered,
whofe lives have been rifked in the caufe of
their country, and whofe property has been
devoted to the public safety, with all due
deference and refpedt afk thefe queftions:
Were not his Majefty and the two Houfes of
Parliament in earneft when they made the
preceding declarations ? Did they not fpeak
the language of law and truth ? If they were in
earneft, as we muft conclude, can Parliament
now fay that his Majefty's proclamation and
their own folemn refolutions meant nothing? Nay

E 70 ]
Nay more, will they reverie their own de
clarations, and now affert that the " dutiful
" and loyal fubjects," who have rifked their
lives in fupporting the rights of Parliament,,
" ought" " not" " to have" ample and full
compenfation for loffes fuftained in confer
quence of it; and "that they are" "not'
entitled to, and affuredly fhall " not" have
the ** protection" of Parliament ? This furely
is impoffible !
Shall fubjedts to whom thefe royal and
parliamentary affurances have been folemnly
made, longer folicit for that protection and .
indemnity to which the laws of the land give
them an undoubted right ? Will Parliament
longer withhold from them the juftice it has
afforded to every other perfon in their pre
dicament, ever fince the eftablifhment of the
prefent government ? What plea or pretence
can juftify the diftinction, and vindicate a
treatment of them as men out of the protection
of tbe laws ? What crime have they com
mitted which can juftify fuch unprecedented
partiality f They have committed none, un
lets innumerable acts of the moft affectionate
loyalty to his Majefty, and the moft un
daunted zeal in fupporting the rights of Par*
liament, be thpfe crimes,. Can fuch acts he
really

[ ?1 ]
really criminal in the opinion of Parliament,
after having, excited the Loyalifts to commit
them ; after haying declared the law which
commands them, and pledged its faith for the
protection and indemnity of the perfons com
mitting them ; after having fuffered their
fortunes to be confifcated by the rebel States
through a want of the protedtion due to
them, and after it has facrificed their pro
perty to the benefit and fafety of their fellow-
Tubjedts, without having made com
pensation? To thefe arguments we will only add, that
by the treaty, the independent fovereignties of
-the American States were unconditionally con
firmed, and confequently the fanguinary laws
by which; the Xoyalifts were attainted. Thefe
laws remain in force to this day, and the
American States fland juftified, by the treaty
of peace, to put thofe of them to death who
fhall appear within their jurifdidtions. A
number of them have been irnprifoned and
cruelly treated, and with difficulty efcaped
the ultimate punifhment which thofe laws
inflict. Now, although it is allowed that the Britifh
government might lawfully difpofe of the
property of its fubjects for the public fafety,
making

,{ 7? I
making them adequate cofnpeifiation-,\ty^d\ not
be contended that it could poffibly have any
right, under any law either- human -or divine,
to confirm unlawful acts, which devoted the
lives of feveral thoufarids of its innocent and
faithful fubjedts, on any account or upon, any
pretence whatfoever. If it could not obtain
a repeal of fuch laws,. it certainly ought not,
by, any means whatever, to have given its
fanction to them.. -Indeed* this wa,s an a£fc
fo fundamentally wrong, that,, it, ,is . impof
fible to fuppofe his Majefy, whofe paternal
affedtion for his people is fo well known,
or that the -two- Houfes of Parliarhent,
whofe honour and juftice have ever remained
unfullied, would have approved of it, how>-
ever *utgent the public necefftty,- had. not their
minds been impreffed with the.' moft firm
arid immutable refolution to makeithe moft
ample and complete. reparation forit. ¦"

C 73 1

CHAP. V.
Of the Ufage and Precedents of Parliament,
under tbe fundamental Laws of the Britifh
State,
\f\7 E have feen in the preceding chapters,
^that the Sovereigns of every State have
held themfelves bound by the laws of civil
fociety never to abandon the protection of
the fubjedt in their greateft extremities ; that
even when they have been under the neceflity
to give up a part of their dominions to fave
the remainder, the property of the fubject
has been flill an object of their utmoft pro
tection and care; that in all cafes where it
could be done, it has been referved by treaty
and reftored to the owner; and where the
nature and iffue of the war have not admitted
of fuch reftitution, the ufage founded on the
LAW has been, to indemnify the private fufferer
out of the public revenue, and by that means
to divide and diftribute the burthen equally
and juftly among thofe whofe protedtion and
fafety have been purchafed by the facrifiee.
This being the univerfal practice of States, it
would be ftrange were there not precedents
of it in the adminiftration of the govern-
L ment

[ 74 ]
ment of Great Britain. On the contrary, it
will be found, upon perufal of the Books of
Statutes and the Journals of the Houfe of
Commons, that the fovereign authority has
ever held itfelf bound by law to make a juft
compenfation to the fubjedt, not only in cafes
fimilar to that of the Loyalifts, but in others
of infinitely lefs public merit. To demonftrate
this truth we will cite the following cafes :
I ft. Wherever' the rights or property of
the fubjedt has been taken from him by the
State, to anfwer fome public convenience or
benefit. When it was found neceffary to the public
welfare to unite the two kingdoms of Eng
land and Scotland, and to deprive the city of
Carlifle of certain tolls, adequate compenfation
was made for the lofs of them. Com. Journ.
vol. 15. p. 33-6.
When Parliament thought it neceffary to
the public peace and fafety, to fupprefs the
heritable jurifdictions in Scotland, it gave
to the proprietors £152,037 as compenfation,.
Ibid. vol. 25. p. 301.
When the exclufive rights and privileges of
the African Company were thought injurious
to the national commerce, Parliament de
prived

[ 75 ]
prived them of their charter; but gave them
£ 1 12,140 as a juft compenfation. Com. Journ.
vol. 26. p. 408.
When a refumption by the Crown of the
royal jurifdidlion of the duke and duchefs of
Athol, was found neceffary to the intereft of
the public revenue, the fum of £70,000, with
an annuity to the furvivor, was given by Par
liament as a full compenfation. Ibid. vol. 30.
p. 225. 228.
£22,500 was given to the proprietors of
Carolina for their rights of government, when
it became neceffary to the peace of the pro
vince, that the Crown fhould refume them.
Ibid. vol. 21. p. 426.
And Parliament has been fo careful not to
infringe on the fmalleft rights of the fubjedt
without making compenfation, that it would
not take from the clerks of the Secretary of
State's office the favings they made, by fending
letters free of poftage, without a compenfation.
id. Where the property of the fubject has
been deftroyed, to prevent fome public mif-
chief. j; '*¦'*¦-,
When the cattle of $ie fubjedt has been
deftroyed, to prevent infection, by an order
»f the State, he has been always paid the va-
L 2 lue

[ 7°~ ]
lite out of the public revenue. Com. Jourri*
vol. 32. p. 966. Vol. ^^. p. 714.
If fhips are burnt by order of the State, to
prevent the plague, the owners have been al
ways paid their value. Ibid. vol. 89. p. 604*
606. 2,d. Where the property of Individuals has
been deftroyed, loft, or injured by a failure of
the fovereign authority in fulfilling its public
engagements, by not affording the protection
due to the fubject by the fundamental and
effential laws of the Britifh conftitution, Par
liament has ever made a juft compenfation.
In March 17 16, feveral perfons having
fuffered, through a want of the protection
due to them as fubjects, by the tumultuous and
rebellious proceedings in fundry counties,
£5577 were granted by Parliament,, to make
good their loffes. Com. Journ. vol. 18*
P- 495-
The faw-mill of Charles Dingly being
deftroyed by a number of diforderly and tu
multuous perfons, Parliament paid him the va
lue of his lofs. Ibid. vol. 32. p. 240.
If Parliament, from a due fenfe of the laws-
of the land, and of the protedtion which it
is moft facredly bound to afford to every fub*-
ject,

[ 77 ]
jedt, has thought itfelf bound to make com
penfation in the preceding inftances, where
the fufferers could pretend to no public merit,
farther than that they were peaceable fub-
, jedls, how ftands the law in refpedt to thofe
faithful citizens, who, in obedience to the
royal command, and under the moft folemn
affurances of protedtion from his Majefty and
from both Houfes of Parliament, have ful-
filled the duties of allegiance with activity and
" zeal;" and, at the rifk of their lives and for-
. tunes, have ftepped forth in defence of the
royal authority and the eftential rights of Par"
liament? Are fuch fubjedts entitled by law to
lefis protection and left juftice than thofe who
have manifefted no merit, on account of their
fidelity to the State? Surely they are not.
— Every principle of reafon, law, and juftice,
and the uniform ufage of a Britifh Parliament,
forbid it. And therefore,
4th. In purfuance of the law of the land,
the ufage of Parliament has been, whenever
the fubject has fuffered lofs or damage in con
fequence of a performance of the leaf of his
political duties to the State, in which he has
riot been protected, to make him adequate
and full compenfation for his lofles.
In the year 1725, Daniel Campbell had
given his vote for the bill for laying a duty
9 upon

[ 78 3
upon malt. A mob at Glafgow deftroyed his"
property; Parliament adjudged that he was
entitled to full compenfation, " clear of all
*' deductions."It is proper1 to cbferve, that this flatute is
clearly declaratory of the fundamental laws
of the Britifh conftitution, which eftablifh
the reciprocal obligations of protection and
allegiance, with the right of the fubjedt to
compenfation for lofles fuftained through the
want of that protedtion ; becaufe, by this fla
tute, the King, Lords, and Commons, de
clare, " That as the great loffes and damages
" fuftained were on account of the concern
a he had, or was fuppofed to bave had, in pro-
" moting the act for laying a duty upon malt,
" it is just and reasonable, that trie faid
" damages and loffes fhould be made good
" and repaid to the faid Daniel Campbell,
" clear of all deductions" And it is further
obfervable, that the Parliament of that day
thought it true policy, as well as juftice, fur
ther to declare to the fubject, that full compen
fation was due by law to thofe who had fuf
fered in confequerice of a mere fiuppofition that
they had difcharged the leaft of their political
duties to the State.
In the year 1689, during the rebellion in
Ireland, the Houfe of Commons made ample
provifion

E 79 ]
provifion for the fupport of the Irifh nobility,
gentry, and clergy, whofe eftates had been
confifcated in confequence of their fidelity to
the Crown of England, and who had taken
refuge under the Britifh government. Com.
Journ. vol. 10. p. 204. 212. 217. 259. 97,
98. And,
In the fame year, the rebellion being fup-
preffed, by the flatute of the 1 W. and M.
c. 9. " All the Proteftant fubjects, who had
" continued faithful in their allegiance during
" the rebellion in Ireland, and had incurred
" a forfeiture of their eftates under acts of
" the Irifh Parliament," were reftored to their
*' poffeffions, as well ecclefiaftical as temporal,
" in the fame manner they were held before the
" rebellion" Compenfation was made for the loffes fuf
tained by thofe who had defended London
derry during the fiege, out of the public fund
raifed by the confifcated eftates of the rebels.
Ibid. vol. 13. p. 291. 293.
In 1705, the Houfe of Commons, on the
petition of Elizabeth Wanderford, flaring,
that her hufband, on account of his zeal and
fervice in Ireland for the late King William,
had been condemned as a traitor, and his eftate con^

[ So 1
confifcated, voted her an annuity as compen
fation. Com. Journ. vol. 13. p. 54.
In the year 1708, Alexander Grant was
reimburfed by a vote of the. Houfe of Com
mons, for the Wafte committed by the rebel
lious dans in Scotland. Ibid. vol. 15. p. 580,
588. In the year 171 5, by the firft of Geo. I.
c. 24. On account of the loyalty and zeal
which the citizens of GlafgOw had fhewn, in
putting themfelves " in a pofture of defence
*' againft the rebels and traitors," Parliament,
" in confideration of their loffes and ex-
" pences," granted " to the city a duty upon
*' ale and beer for the fpace of twenty years."
By the 4th Geo. I. c. 44. the fubjedts who
had behaved with fidelity to the Crown during
the rebellion, and whofe property had been
deftroyed by the rebels, were fully recompenfed
for their loffes.
In the year 1 7 1 7, by the 4th Geo. I. c. 8.
it was enacted, " That all perfons who had
* ' continued dutiful and faithful to his Majefy,
" and whofe houfes or goods had been burnt
*' by the rebels in Scotland; or burnt or other-
" wife deftroyed at Prefton in Lancafhire by
« the rebels, or his Majefty's army, fhall be
"fully

t 81 3
" fully reimburfed and repaid their loffes by
" the refpective exchequers of England and
" Scotland."
In the year 1749, the Houfe of Commons
granted to the loyal city of Glafgow 10,000/.
for that fum extorted from them by the rebels.
Com. Journ. vol. 25. p. 959.
In the year 1747, Doctor Swinton peti
tioned the Commons, for a compenfation for
fundry houfes which had been deftroyed in
the preceding rebellion at Chefter. His peti
tion CAME DOWN RECOMMENDED FROM
the throne. It was confidered as a peti
tion, in the prayer of which the public honour
and juftice were concerned, and therefore it
was received by the Houfe of Commons, al
though the time limited for receiving private
petitions was expirjed ; and he was fully com-
penfated for his loffes, out of the aids granted
to the Crown.
When the State found it neceffary to the
public intereft and fafety, to cede to France
the ifland of St. Lucia, ample compenfation
was made to the Duke of Montagu, the pro
prietor, both of honours and revenues ; there
being in his cafe, as in that of the Loyalifts,
no refervation of his property.
M From

To thefe -we will- add one authority more.
Judge Black-ftoRe, when treating of the pro-?.
tedtion due from the Legiflature to the fubject,
in the moft decided manner declares, that
" fo great, moreover, is the regard of the law
'* for private property, that it will not au-
u thorite the leaf violation of it, no, not even
" for the general good of the whole com-
" munity. Befides, the public good is in
" nothing more effentially interefted than in
" the protedtion of every individual's private:
" rights, as modelled by the', municipal law..
" In this, and fimilar cafes, the Legiflature
" alone can, and indeed frequently does, inter"
" pofe and compel the individual to acquiefce.
'-' But, how does it interpofe and compel t ' Not
*' by ftripping -the individual of his property
" in an arbitrary manner, but by. giving him
" a full and ample indemnification and equivalent
*.' for the: injury thereby fuftained." '¦
From thefe and many other authorities, it
evidently appears, that' Parliament has ever
held itfelf bound b v the law of the land-, to
make compenfation to the fubject -for pro
perty taken or deftroyed by the State, either
to avoid fome public mifchief, or to obtain
fome public benefit ; for property loft through
a failure in the State, to afford him the pro
tection

I 83 i]
tedtion due by law, and for property loft in
confequence of his faithful exertions to de
fend the public intereft; and fafety : while
there is not one to be found of a contrary
tendency or fpirit, nor one where the com
penfation claimed by the Loyalifts, has been
delayed beyond the feffion of Parliament in
'which the application has been made. In
deed the right is fo replete with public merit
and equity, and the law from, which it is de
rived has been fo well underftood, that it has
never been difputed or doubted. It is,, as
the moft eminent civilian in Great Britain
declared, when his opinion was taken upon it,
" A Truism which admits ofi no possibj-
h LITY OF DOUBT."

M.2

[ 84 ]

C HA P. VI.
Of the Senfe and Declarations of the Members
ofi both Houfes of Parliament in their De
bates on the Treaty of Peace, upon the Right
of the. Loyalifis to Indemnity and Compenfa
tion,
T T is not to be pirefumed that a great national
council will be of contrary opinions at
different times, refpedting a topic of national
juftice. The principles of juftice, which are
immutable, and the fame yefterday, to-day,
and for ever, are fo deeply ftamped by Omni
potent wifdom in the confidences of men, that
they cannot be miftaken. No man, whofe
intellectual powers were not impaired, or
whofe reafon was not perverted, ever yet
doubted of the obligation he was under to
make reparation for injuries done to, or da
mages fuffered by, another, through a violation
of his folemn engagements. Nor is an inftance
to be found in the annals of Parliament, where
it was ever denied or difputed that the fove
reign authority of Great Britain was bound^
by law, to make compenfation for loffes fuf
tained by its faithful fubjects, through a
breach

i ^5 1
breach of its facred obligation to defend and
protect their perfons and properties. Hence
we fhall find that the Members of the two
Houfes of Parliament, who fpoke in the
debate on the treaty of peace, have fully con
firmed the declarations and folemn decifions
of the two Houfes of Parliament in 1 764 and
1767, and of his Majefty in council in 1775,
on the right of the Loyalifts to compenfation
for loffes fuftained in confequence of their
fidelity to his Majefty, and their attachment
to the Britifh government.
To prove this, we here give extracts from
fuch parts of the fpeeches of the learned Mem
bers of both Houfes as relate fo the Cafe c£
the Loyalifts. HOUSE of COMMONS.
Mr. Wilberforce. " When he confidered the
" Cafe of the Loyalifts, he confeffed he there
"felt himfelf conquered; there he faw his
" country humiliated; he faw her at the feet
" of America ! Still he was induced to believe,
" that Congrefs would religioufly comply
" with the article, and that the Loyalifts
" would obtain redrefsfrom America.- Should
" they not, this country was bound to afford it
" them.

^BeW?izThe} %itft ^je>oW^EN^A:T'kryi Mi-
-^^rrrlrerSj-^Tie^was I rierfuadea, rrieant' to keep
wMfaiB of We nation' with'them." ,i£'"" c
ihbLorl -North. ,¦ ¦+'¦? >Atid ~ihqw ^let me, Sir,
;&cpabfibon apaftof ;the treaty which. awakens
Kinqm^n fenfibility' in i at very irrefiftible and
»** laineritable'J degree/f c [X canrioto but ; lament
*• the fate of thtofe Unhappy Imen, who, I cont-
" ceivei, were in general objects. of our gra-
" tituDE and jP^otegtion. The Loyalifts,
"from their attachments^ fugely^jhadeXome
" claim on our_ affection. But what were
xt ri'6rtfi;e:jcla,ims of :thbfe who, in c'onforrriity
"*e to theit [allegiance^ fbdr cheerful oStimuNCZ
" to'ther'WVe of Parliament, their"' confidence
" in the proclamation of our Generals, in-
*{ vited under every affurance of military, par-
*' liamentctpy, political and fffectionatjer9ROTEC-
" tion, efpoufed, with the hazard of their
**-;iite%.'ahd the forfeiture of their properties,
" the =caiife' of Great Britain? I cannot but
" feel for men. thus Jhcrificed for their bravery
it arid principles : rnen" who have facrificed all
'ithe deareft poffeffions of, the human heart*
*'"They have expofed their liveSj -endured an
" age df hardfhips,, deferted -tthe«K*interefts,
"" forfeited 'their poffelfions, /o^rheiriconnec-
*' tions, and ruined? their families, in our
•' v • ^ " cause*

[ 87 3
*-*• cause. Could not all this wafte of hu mart!
* enjoyment excite one defire of protecting
" them from that ftate of mifery with "which?
" the implacable refentment of the- States has'
" defired to pumfh their -loyalty to their So-
" vereign andrheir attachment to their mother-
" country _?, :Had' we riot efpoufed their caufe
" from a . principle :xf. affection and gratitude,
" we fhould, at leaft, have protected them, Jo
" have preferved our own honour. If not
" tender of their feelings, we fhould- have
" been tender of our own character.
" Never was the honour, the principles, the
" policy of a nation, fo grofsly r.bufed as iri
«-' the defertion of thofe men, who are now
" expofed to every punifhment that defertion
" and poverty can inflict, because theY
"'were not rebels."
Lord Mulgrave. " The article reflecting ]
" -the Loyalifts, he faid, he never could regard !
" but as a lafting monument of national dif-
" grace. 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 unneceffary.
" The Honourable Gentleman who made the
" motion had afked, if thofe Gentlemen, who
" thought the prefent peace not fufficiently *• ad van*

[ 88 3
?' advantageous to Great Britain, confidering
" her circumftances, would confent to pay the
" amount ofi expence another campaign * would
" have put us to, for the degree of advantage
" they might think we had a right to expect?
" In anfwer to this* he declared for one, he
" had rather, large as thefium in queftion was,
" have had it ftipulated in the treaty, that
" Ureal Britain fhould apply it to making good
"the loffes of the Loyalifts, than that they
*' fhould" have been fo fhamefully deferted,
" and the national honour fo pointedly difigraced
** as it was by the fifth article of the treaty
" with the United States."
Mr. Secretary Townfhend, s now Lord Syd
ney. " He was ready to admit, ' that many
** of the Loyalifts had the firongeft claims
" upon the country ; and he trufted, fhould
"the recommendation of Congrefs to the
" American States prove unfuccefsfuj, which
" he flattered himfelf would not be the cafe,
" this country would feel itfelf bound in honour
" to make them full compensation for
*' their loffes"
Mr. Burke. " At any rate, it muft be
" agreed on all hands, that a vaft number of
" the Loyalifts had been deluded by this
•>< country, and bad rifqued every thing in
* Twenty millions.

"our

[ 89 3
*' our caufe ; to fuch -men the nation owed
" protection, and its honour was pledged for
" their fecurity AT all hazards."
Lord Advocate. " With regard to the
" Loyalifts, they merited every poffible effort
" on the part of this country."
Mr. Sheridan " execrated the treatment
" of thofe unfortunate men, who, without
" the leaft notice taken of their civil and re-
" ligious rights, were handed over as fubjects
" to a power that would not fail to take
" vengeance on them for their zeal and at-
" tachment to the religion and government
" of this country. This was an inftance of
"Britifh degradation, not inferior to the
" unmanly petitions of government to Congrefs for
" the wretched Loyalifis. Great Britain at the
"feet of Congress fuing in vain, was not a
" humiliation or a stigma, greater than
» " the infamy of configning over the loyal
" inhabitants of Florida, as we had done,
" without any conditions whatfoever."
Mr. Lee. " With refpect to the ceffion of
" territory, it was great and extenfive iri every
" quarter of the world. Europe, Afia, Africa,
" and America, beheld the difmemberment
" arfU diminution of the Britifh empire. But
N " this,

[ 90 3
" this, alarming and calamitous as- it was, was
" nothing when put in competition with ano-
" ther of the crimes of the prefent peace ; the
" .ceffion of 'men into the hands of their enemies,
" and delivering over to confifcation, tyranny, re-
** fent ment, and oppreffion, the unhappy men who
" trusted to our fair promises and DE-
" CEITFUL WORDS."
'The Honourable Mr. Norton. " Mr. Nrir-
" ton added, that under all the circumftances,
" he was willing to approve of the twO
" former {the% European treaties), but on ac-
" count of the article relating to the Loyalifts,
" he felt it impoffible to give his afferit to the
" latter." Sir Peter Burr ell. " The fate of the
" Loyalifts claimed the compaffiort of every,
" human breaft ; thefe helplefs, forlorn men,)
" abandoned by the minifters of a people on.
" whofe JUSTICE, gratitude, and humanity,
" they had the bett-founded clairns, were left,
*' at the mercy of a Congrefs highly irritated
" againft them. s What then could they ex-
*' pect from fuch an afferribly? Why .truly,
*' nothing ; and therefore he might fairly fay,
" that nothing had been obtained for them by
c< this country. If nothing, elfe was wanting,
" was not this enough to damn a peace, and
4 " render

[ 9^ 3
"render it infamous in the eyes of all ho-
" NEST men ? He fpoke not from party zeal,,
" but as an independent country gen-
M TLEMAN, who, UNCONNECTED WITH
" party, expreffed the emotions cf his
" heart, and gave vent to his honefl in-
" dignation." Sir Wilbraham Bootle. " There was one
" part of it (the treaty) at which his heart
" bled; the article relative to the Loyalifts.
" Being a man himfelf, he could not but feel
" for men fo cruelly abandoned to the malice
" of their enemies. It was fcandalous ! it
" was difgraceful ! Such an article as that
" ought fcarcply on any condition to have
" been admitted on our part. They had fought'
"for us, and run every hazard to ajfift our
" caufie ; and when it moft behoved us to afford
" them protection, we deferted them."
Mr. Macdonald. " He declared, that he
" forbore t9 dwell upon the cafe of the
" Loyalifts, as an affembly of human beings
" could fcarcely truft their judgments when fo
" powerful an attack was made upon their
" feelings. If they had hearts and nerves
" they muft neceflarily overwhelm their un-
" derftandings. He turned his eyes there-
" fore from that fubject, by a kind of natural
" impulfe, as from a corpfe or a grave.
N 2 " There

[ ** 3
" There was, riOwever, a chance held out by
"America of reftoring *fome of thofe me-
" ritoridus men to the very natale folum
" on which they had been born g.nd bred.
" Avery bad chance he feared ;y£t they' ought
" to have the benefit of that chance, fuch as it
"was. This a parliamentary declaration
" might fruftrate.1 If that chance fails, faid
" he, tax me to the teeth, and I will
11 cheerfully fint myfelf to contribute to their
" relief or to make up any deficiency.^
HOUSE of LORDS.
" Lord Walfingham " affured their Lord-
" fhips, that the noble Earl (Carlifle) had
" forcibly aroufed his feelings, and he could
" neither think nor fpeak of the difhonour of
" our treatment of thofe deferving men with
"patience. Their claim upon' us was1 .fjelf-
" 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 legiflature: to protect them. The Crown
." had no feparate intereft in the war; the
*' addreffes to the King from every part of the
-** country proved, that the people of England
" confidered. the war as neceffary, fince. its
" object was the prefervation of our juft do*

** minion.

I 93 J
" minion. Parliament fhould be consistent.
" He begged their Lordfhips to look at the
" refiolutions of Parliament in 1706, and fee
" by them, if, in order to be consistent,
" they ought not to have obferved a different
" conduct in regard to the Loyalifts."
Lord Hawke " denied "that the Loyalifts
" had been abandoned ; and after paying
" them every proper compliment faid, that he
" fhould fupport no minifter who would coun-
" tenance such a measure. In America,
" faid he, ¦ Congrefs had engaged to recom-
" mend their caufe, to the legiflat,ures of the
" country. He flattered himfelf that recom-
" mendation would be attended, with fiuccefis ;
" but, faid he, ftate the cafe that, it will not,
¦" the liberality of Great Britain is ftill open tp
" them ; minifters had pledged themfielves to
" indemnify them, not only in the addrefis now
" moved for, but even in the Iqfi addrefis, and
" in the Speech firom the Throne."
Lord Vificount Townfihend. " To defert men
" who had constantly adhered to loyalty and
" attachment, was a circumftance of fuch cru-
" ELTY as had never before been heard of.v
Lord Stormont. " Thefe were men whom
;';*. Britain was bound in justice and honour,,
" gratitude

[94 3

tc

gratitude and affection, and EV^ry TIE, to
" provide for and' protect. Yet, ALAS FOR
u England as well as them, they were
" jnade a part of the price 0fpe3.ee. Thofe
" who were the beft friends of Britain were,
" eo nomine* on that very y account, excepted
" from the indulgence of Congrefs. Britain
" connives at the bloody facrifiee, and feeks
" for a shameful retreat at the expence of
"her moft valiant and faithful fions! How
" different was this from the condudl of Spain
" to the Loyalifts in the Netherlands, in the
"reign of Philip III. on occafion of the
u famous truce in 1609, and alfo in the peace
** of Munfter. Their effects and eftates were
" either reftored, or they were paid intereft
"for them at the rate of fix and i~4th per,
" cent, on the purchafe money. A general
" act of indemnity was paffed, without ex-
" ceptiop of place or perfon." Lord Stormont;
alfo touched, on the cafe of the Catalonians,
" who revolted from Spain, and when they
"put, themfelves under the v protection of
" Britain. In^ both cafes, : their privileges,
" liyes, and properties, were preferved to, thenj. .
f< Even Cardinal Mazarin, fo (artful, fo. flxuf-
f* fling, and fallacious j and I am fure, fays*
%i he, I mean not the moft diftant., allufion to
" any' of his "Majefty's minifters (for-the
' ' " Parliament

£ 95 1
"Parliament of Paris determined, that to cat!
" any perfon a Mazarin was a reproach to
" him, and that an action would lie) ; even
"he, though fo little fcrupulous on moft
" occafions, deemed it found and wife policy
" to obferve good faith with the Catalonians.
" He negotiated the peace of the Pyrenees
" himfelf, and he took care that an act of
" indemnity fhould be publifhed in their^-
" vour, on the fame day in which a procla-
" mation was iffued reclaiming their obedi-
" ence. Hifiory, experience, furnifih no example
" ofi fuch bafe dereliction:'
Lord Sackville. " In regard to the aban-
" donment of the Loyalifts, it was a thing
" olfio atrocious a kind, that if it had not been
" already painted in all its horrid colours, he
" fhould have attempted the ungracious tafk ;
" but never fhould have been able to defcribe
" the cruelty in language as ftrong and ex-
" preflive as were his feelings. The King's
" miriifters had weakly imagined, that the
" recommendation of the Congrefs was a fuffi-
" cient fecurity for thefe unhappy men. For
** his own part, fo far from believing that this
" would be fufficient, or any thing like fuffi-
" cient for their protedtion, he was of a direct
ft contrary opinion ; and, if they entertained
n any notions of this fort, he would put an
" end

[ 95 ]
'/.end to their idle hopes 'rf/ once, by reading
"from a paper in his pocket, a refolution
*' which the Affembly of Virginia had come
" to, fo late as on the 17th of December laft.'*
Having read tne refolution, his Lordfhip
demanded " what minifters had to fay now
" for this boafted recommendation for which
" they had ftipulated with Congrefs? Could
" they fay, that the unhappy men who had
" ftougbt an^ bled for this country:, who had
"given up their all, and (a pang the more
" grievous to minds of feeling) the all ofi their,
" little families ; could minifters fay, that thefe
" men who had faid and done and fuffered all
"that was in the power of human nature for
" our caufe, ought not to have had a better
" fecurity than the prefent, from ficorn, info-
" lence, and ruin r1, A peace founded on filch
*' a sacrifice as this, muft be aciurfied in the
" fight of God and man."
Lord Loughborough faid, ".That the 5th ar«
" tide of the treaty has. excited a general and
" Juft indignation. For what purpofe ccjuld'
" it have been iriferted ? Thofe whom it pre-
" tends to favour receive no benefit from, it ;
1 " for what is the purport of a recomme,ndfi-
'.' tion ? but to thofe the rrioft entitled to our*
"regard, the. brave and unhappy men who.
. " have

[ 97 3
" have not only given up their property, but
w expofed their lives in our caufe, the diflinc-
" tion admitted to their prejudice is cruel and
" injurious indeed. In ancient or in modern
" hifiory there cannot be found an inftance of
M fo fhameful a defertion of men who had*
"facrificed all to their duty, and to their re-
" liance upon our faith. There is even an
" horrible refinement in the cruelty of the ar*
" tides : they are told that one year is allowed
" them to folicit from the lenity of their per-
"fecutors that mercy which their friends 'ne-
" glebted to fecure ; to beg their bread of thofe
" by whom they have been firipped of their
" all; to kifs the hands that have been dipt in
" the blood ofi their parents, and to obtain, if
" they can, leave to repurchafe what they have.
" no money to pay for."
Lord Shelburne. " But there remains fome-*
" what in thefe provifional articles ftill to be '
" confidered, which I have never reflected
" on without fedings as pungent as any which
" the warmefl admirers of the virtues of the
" Loyalifts can poffibly have experienced ; I
" mean the unhappy neceffity of our affairs,
" which induced the extremity of fubmitting
" the fate of the property of thefe brave and,
" worthy men to the difcretion of their ene-
<• mies. I have but one anfwer to give the
0 » tfoutei

cc

<(

C a* 3|
<< Houfe ; it- is the, anfwer I -gave my. owtv
«' bleeding rhearl. A part m%i\- be wounded?
" that the whole of .the empixe^ may not pe«
" rifh. If better terms cou^^bf had^thinfe
€' you, my L,ords, that J would nqt-haye\em»
" braced them ? / had- but fhe ahernaf^fi^
^ ther tg accept the terms, {a}<\- Congrefs,- of
c#r recommendation to the States jn>fiavqug\jofi
the Colonifts, or continue, theT war, . But fey*
the worft; and that, after,- all^ this r /##&'*»
" mable fit of men are not received .and^ cbe->
" rifhed in thebofom of. their own country 5
*'-is England Jb loft to gratitude, and all ^ha
"feelings of humanity-, as not to. afford them
" an afyhrm? %ho can. be fo. bafe as to think
•*.'- fhe will refufe it to them-,? Purely it cannot
" be that noble-minded^ man, who. would
" plunge his country aga^n, knee-deep in, bloody
'" and faddle it with an expence of twenty
** millions for tlie purpofe of reftoring them,
*c Without' one drop of blood jpilt, and with-
" out one fifth of the ekftente of one year's cam-
*' paign, happinefs arid cafe can be given ftie
"' Loyalifts in as ample a manner as thefe bleff-
*' ings were >ever in their' enjoyment ; therefore
*' let the'outcfy ceafe on tMs'head." '
, Lord Chancellor, "- As to. the Loyalifl^,, they
I had .^rfpecifjc. provifion ;hi the. treaty : his
f own, co^-^9lr?.;ia^Q9U?Hy^^'j^riei-JjJai " doubt

[99 3
*' doubt the good faith of others ; his good
*' wifhes to the Loyalifts would not let him
" indifcreetly doubt the difpofitions of Con-
" grefsv It was ftipillated, that all thefe un-
" happy men fhould be provided for; but
" if nOtj then, arid not till then, Parliament
"could take cognizance of the cafe, and im-
" part to each fiuffering individual that relief
" which •'REASQN, perhaps policy, certainly
" Virtue and religion, reojjired*." From
* We trtiftthat the fentiments of Parliament have not
changed fincethe year 1783. Indeed>we have reafon to hopetke
contrary, from the fpeeches of feveral Members who have
given their feritiments on the fubjeiSl fo late as the year 1786.
1 The Chancellor of the Exchequer, when opening his plan for
reducing the national' debt, obferved, " That another matter1
" of expence comes properly under this head ; and it is -what
" the Houfe have already acknowledged to be a just demajjd
" upon the justice and generojity of this nation, that is, a pro-
" vifion for the American Loyalifts. Their fituation" demands
" the moft tender confideration ; nor would I chufe to mention
" any fum for this purpofe ; if it was a great one, it would
" raife the expeditions of thofe unhappy people: and I would
" not wifh to fay any thing more to them, than that I hope
" there will be a generous and liberal regard paid to their me-
" lancholyand unfortunate cifcliniftancesk"
Mr. Dempfter, having remarked, that the royal word,
as Well as the faith of the Houfe, and of the nation, flood
pledged for the protection and fupport of the American
Loyalifts, begged leave to prefent a petition in their favour,
and faid> that the Houfe would find it prefented fuch a melan
choly pifture of the misfortunes which the Loyalifts had en
dured, in confequence of the negleti they had been treated with,
as he hoped would prevail on the Houfe to grant them a fpecdy
and effeBml relief. O % Sir

[ loo ]
From thefe Extracts, it evidently appear*,
that there was no difference in opinion on the
right of the Loyalifts to adequate compenfa
tion. Thofe who fpoke againft the Treaty as
inadequate to the national circumftances, de-
dared, that the Loyalifts had been facrificed
through a want of the protedtion due to them,
and therefore that a full compenfation for the
facrifiee (and if poffible more) was due; and
that if the expence of one year's campaign,
ror twenty millioris, was neceffary, it ought to
be applied to that purpofe. Thofe who con
tended; that the peace was neceffary to the
then ftate of the country, candidly and ho
nourably agreed, that for fuch compenfation
the faith of the nation was pledged. One of
the Minifters who made the peace deelared>
£;V George Howard kconied the petition, and declared, that
he ever had, and, on all occafions, would ftand up the zealous
advocate of the American Loyalifts, lo whom he held the ho
nour, the justice, and the good faith of that Houfe and
the Britijh Jiation unavoidably pledged.
Mr. Sheridan. Ther* was a fubject which, he was forry to
fee, had fo far changed its impreflioas on their feelings, that
though the bare mention of it ufed to caU forth all their fenfi-
bility, it was now heard with the coUeft indiferende ; he meant
the American Loyalifls, men to whom the faith of Parliament
tyas folemnly pledged, and therefore men whofe caufe that Houfe
neither could nor •ought to abandon. The Houfe had recognized'
their pretentions to protection, by inftituting a committee to
enquire into their claims, the amount of which was confider-
ftble, and must be defrayed. that
x

[ ioi- ]
that "if the recommendations of the Con-
,'* -grefs proved unfuccefsful, this country
" would feel itfelf bound in honour to make
" them full compenfation for their loffes." The
noble Lord at the head of the Treafury, who
made the peace, candidly confeffed that it
ought to be made, and that it would not coft
the nation more than one fifth of the ex-
pence of one year's campaign, or twenty
millions, " to give to them the fame hap-
" pinefs and eafe they ever enjoyed before ;"
and the noble and learned Law Lord, whofe
profound knowledge of the laws of the land,
and of the mutual obligations between the
fovereign authority and the fubject was never
difputed, decidedly declared, that if the Con
grefs fhould not provide for them, Parliament
ought " to impart to them that relief which
" reafon, perhaps policy, certainly virtue
" and religion, REQUIRED."
Here we find that the compenfation claimed
was confeffed to be due by all — and that the
noble Lord who made the peace, thought it
but juft to make fuch compenfation as to give
the Loyalifts the fame eafe and happinefs they
ever enjoyed before ; but this is impoffible.
What compenfation can Parliament make
for fuffering them, through a want of its pro
tection.

"tedtion, to be driven as it were into exile frOrfl
the land ' of their nativity, and from 'the
tettdereft and deareft of all connections?-^—
"What, to the fathers who have loft -their Tens'?
to the widows who have loft their htrfbands1?
to the numerous orphans who have loft their
fathers, the only hope and fupport of ther'r
infant years ? For fuch' loffes, too great to be
defcribed by language, and fcarcely to be efti-
matied by the utmdft feelings of 'humanity,
excited by the ftrbngeft powers of fenfibifity,
government can make none., The Loyalifts
expect none ; becaufe they are loffes tb
which no earthly compenfation can be ade
quate. For a reward for fuch. lofles, and vdf
that virtue which excited them, at every hazard
ijf life and fortune, to fulfil their duty to the
State, and to fupport the rights of their Sove
reign and his Parliament, 'they look up to the
fupreme Father of all juftice. They now
afk for that compenfation only which they
have fo long folicited in vain from Parlia
ment ; compenfation for property and rights
which have been loft through a want of that
protection whifih is due to them by the firft
great laws of the Britifh conftitution—! by the
Royal faith, and the refolutiqns of a Britifh
Parliament, folemnly pledged to- then* for it ;
a conv

a compenfation which is- due to them by their
birth-rights as Britifh fubiedts, of which no
povyer on earth. can lawfully deprive' them.

C H rAiP. IV1I.
Of the Doctrine of the1 Right ' Honourable' Mr.
•^Piit, applied to the Claim of the' Loyalifis." ;" "
1 LTMOXIGH^ in the 'preceding pages,
we have demonftrated from the laws of
civil fociety— r-the ufage of ftates — the practice
Of Parliament, >and from the declarations of
his Majefty, ' aptd . the uniform refolutions 'of
both houfes of the legiflature, the indifpenf-
able obligation which- Parliament is under to
make compenfation to the Loyalifts adequate
to their loffes ;\ we will yet further corroborate
thofe arguments > 'by the opinions of the firft
miriifter of Great Britain}- in a cafe fimilar,
but of much lefs public merit and importance;
opinions not haftily formed; but ^ eftablifhed
in his enlightened mind, aftbr-the fulieftde*
liberation upon the fubjedt,. and which there
fore, we muft conclude,, fpeak the language of
law and truth, t 'Thefe opinions are to be
found in his memorable fpeech in Febjuary
. The .cafe upon which this fpeech was made
|§jthat of Mr^ Haftings^ 0 ;XH§. gentleman, as
Governor

[ 104 V
Governor General of bur Indian poffeflions,
was charged with refuming the Jaghifes, the
property of the Begums of Oude, promifing
them compenfation which he did not make.
A motion was. made in the Houfe of Com
mons to impeach him for this, act of" violence
and injuftjee. In the .courfe of the debate,
Mr. Pitt "declared, " That there were but two,
** principles which could juftify a refurription
*' of. /thefe Jaghires. To refiume the property
'* 6f arxj fubject, or of any Prince- with whom
"you are in. alliance, rit was neceffary that
"either it fhouldvbe firft forfeited by deli#-.
" guencyj' or- that, impending 'and immediate*
*-' political danger,, fhould duthorif the; feifitfe,
" But in either Gafe juftice fhould be obferved,
" For if you feized them as a punifhinent fon
** a crime, it. fhould be done with juftice^
'*: Gould the political ^emergency be proved, it
V, would certainly acquit Mr. Haftings of the
V jctmiria&ty. For the neceffities of the public
** faiety produced ima/iy inftances of ihejuft'tct
**jaf ' poffeffing>pisiyate^ property, provided.
«* YOU GIVE TO THOSE YOU HAVE DE-
tf SPOILED AN ADEQUATE COMPENSA^

" TION,"

He further contended, that the right in the
State to take the property of the fubjedt, or
$n ally, is founded onrthe compenfation te»

C »°j 3
be made, " For," fays he, "the neceflities
" of the State made it" common juftice to re-
" fume private property, which was always
'' the right of public benefit. When any
" dangers, arofe, even fo a fubject or a prince,
" .felf-prefervation dictated the lawful poffeff-
" ing of 'every means to avert the approach-
" ing of impending danger. But the cri-
" TERION OF THE RIGHT WAS THE JUS-
" TICE WITH WHICH IT WAS ACCOMPA-
" NIED.
s - - - '¦ , - -i- ...";¦ <
"Thus, if fuch had been the ftate of af-
" fairs, as tp render it indifpenfably neceffary
" to refume the Jaghires, for the immediate
" prefervation of our poffeflions and terri-
" tories"; AN adequate compenfation fhould have
" been most sacredly given to- the difpof-
'" fe/Tec

" If thefe Jaghires occafioried fo much dif-
" tdrbance at Fyzabad, as to threaten broils
" and contentions, that produced fuch evils to
" our State as were neceffary fhould be avoid-
" ed, the ; refumption of them was morally
" and politically juft, attended with the
" ADEQUATE COMPENSATION."
After contending that.no fuch neceflity ex-
ifted to juftify Mr. Haftings in refuming the
P property

[ io6 ]
property of the Begums, he fays, " If it had,
" it would certainly have compelled him tQ
",the< inftantaneous application of the only
"remedy which offered. As thefe Jaghires
" were the fuppofed or affumed caufe of the,
" infurredtion, Mr. .Haftings fhould, without
" delay^ bejng • firft" convinced of the truth,
" have returned them, and given the pos-
li SESSORS, AS, BEFORE OBSERVED, THEIR
" JUST, RIGHT TO A COMPENSATION." ,
Shortly after, he repeats and enforces the,
fame principle .of law and juftice ; and adds,
" But' admitting the right to the reftirription,
" THE GUARANTEE' OF THE COMPENSAi?
" TION SHOULD HAVE' BEEN INVIOLABLE.
" Inftead of this, ' he' afferts,' the Jaghires
" were refumed ; the compenfation guaran
teed, arid ' this treaty afterwards 'violated;
" and that the good faith of this country,1 and
" the law of natioris, thould have taught Mr.
" Haftings rather to have preferved and pro-
"tected, than injured and deftroyed the rights of
" the Begums."
Thteactof Mr. Haftings, in refuming the
property of the Begums, without adequate com
penfation, he concludes, with reprobating in
the ftrongeft terms,, and declares^ that he was
convinced, " the national character had been
"debated
6

[ io7 1
" debafed arid degraded, and it was only by
" an act of national juftice it could be reftored
" to its wonted brilliancy, excited by its fa-
" cred attachment to honour, justice, and
" HUMANITY." Here we find, that the law, and every
principle of juftice, afferted in this fpeech, are
the fame we have laid down in the preceding
pages, and manifeftly prove the right of the
Loyalifts to compenfation. The Minifter, with
much learning and truth, confiders the pro
perty of the fubject, as facred and inviolable,
under the laws of civil fociety, and the pro
perty of an ally, under the laws of nations ;
and candidly declares, that neither can be de
prived of it without " criminality in the de-
" fpoilers ;" but upon TWO principles, in cafe
of " forfeiture by delinquency, or when the
" neceflities and prefervation of the State re-
" quire it." And when that neceflity de
mands it, he repeatedly affirms, that the re-
fumption cannot be lawfully made without
ADEQUATE COMPENSATION. This COm-
penfation he declares is the " criterion,"
the " proviso," or condition of the right,
and that it ought to be moft fiacredly made to
the defpoiled, whether they be fubjects or al
lies. P 2 Should

[ 108 ]
Should it be faid that there is a difference
between the cafe, where the property of the
fubject is " refumed," and where it has been
loft through a w^nt' of pubfic protection, .and
afterwards facrificed to the public fafety : we
anfwer, that this diftindtion is not fourided in
law ; becaufe the State, by its folemn political
engagements, is bound tp defend and protect
the fubject againft all foreign as well as do
meftic injuries ; and therefore it cannot do
any injury, or fuffer it to be done to hirri,
without violating thofe engagements and the
law upon which they are eftablifhed. Hence
it cannot refume, or deftroy, or fuffer to" be
taken or deftroyed, or cede in a treaty the
property of the fubjedt, and thus violate his
right to its protedtion, but when the public
benefit or neceffities require it. For the right
of the ftate to do all thefe adts, fo contrary to
the laws of nature, reafon, and juftice, to in
jurious to the individual, and fo incorififtent
with its moft facred duty, originates in, and
is founded on, the law of neceflity, which at
the fame time enjoins the State as the *.- criie-
" rion" and condition of this' right, to repair
the damages fuftained by a breach of its fo
lemn engagements, by making to the fufferer
ample compenfation. In all thefe cafes, the
obliga-

[ IOQ ]
obligations of the State, and the right of the
fubjedt to protection, are equally broken ; the
injury done, and the lofs fuftained, are the
fame, and that fecurity to which he is enti
tled under the laws of civil fociety equally
deftroyed ; and of courfe, equal compenfation
is due in all.
We have thus reafoned from the doctrines
of the Minifter, whofe candour, love of juf
tice, extraordinary abilities, and firm attach
ment to the honour of his country, we are
at all times ready to acknowledge, not doubt
ing, but that when he fhall detach his mind
from his other important engagements, and
give to the cafe of the Loyalifts full confidera
tion, he will perceive the high obligations under
which Parliament remains to do them juftice;
and how much it is his peculiar duty in the
high office he now holds under his Sovereign,
to folicit and obtain it for them ; and that,
" the principles of reafon, juftice, and huma-
" nity *," the force of which he has fo fenfi-
bly felt and exerted in favour of others, will
all combine to convince his upright and en
lightened mind, of the juftice and compenfa
tion which is due by law to the Loyalifts.
; * See the Speech.

no

C H A P. VII.
Of the Benefits received by the Britifh Nation,
from the .Sacrifice made of the Property of
tbe Loyalifis t
IT will not be denied, that the property of
the Loyalifts has been given up by the fo
vereign authority, as the neceffary- price and
purcbafie of peace for the whole fociety. The
Minifter who made, the treaty, unequivocally
declared it. It was fo underftood at the time
by all the Members of both Houfes of Parlia
ment, when they confirmed the "peace. In
deed the fact, fpeaks for itfelf ; becaufe unlefs
that authority conceived that the affairs of the
nation were in fuch extremity as to make
fuch a facrifiee neceffary, it could have no
right to give' up their property, as is before
proved, but was obliged to protedt it by carfy-^
ing on the war, until it was regained and re
ftored to them.1
-... ,. .. . ;.. • . ,. . , ; -,{
Should .we attempt to defcribe the benefits
purchafed for the nation by this facrifiee, the.
extent of them is fo great and diffufive, it
could

[ III ]
c,puld not be done. However, to have before
us a fummary view of them, we will only, ob-
ferve, that the ravages of war were flopped
in the moft violent ftage of their progrefs ;
and peace and fecurity, with all the invalu
able bleflings attending them, were reftored, to
every perfon in the Britifh dominions, except
the American Loyalifts. The farmer was re
ftored to the unmolefted tillage of his ground,
and to the peaceful enjoyment of more ex-
tenfive 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 veffel of the merchant traverfes the ocean
at lefs rifk and expence, and cdnfequently to
much greater advantage. To thefe benefits,
which are more readily conceived than ex-
preffed, we muft add the immenfe national
favings. Had the war continued- one "year
more, twenty, millions at leaft, -according "to
the confeffion of the Minifter who "made the
peace, miift have been raifed and added to
the national debt; and-, in all probability,
thoufands of Britons would have been loft in
battle. Had it been extended to twoor three
years, treble that fum, or Jixty millions, would
have been incurred ; and no man can fay,
what

[ 112 ]
what might have been, in the then deranged
ftate of our public affairs, the lofs the nation
might have fuftained in its territorial poffef-
fibris. ^ From thete burthens, loffes, and dan
gers, great as they were, the nation has been
happily relieved, by giving up the property of
a few of its fubjedts. Artdas it is now certain
the debt due to the Loyalifis will be much lefs
thari one fifth of the experice of tine year's
campaign, #hich: was the" fuppofition of the
Minifter who negociatfed the pelce, it is evi
dent that an immenfe gain thereby accrued to
the nation ; but when the other favings and
benefits are thrown into the fcate, the profits
are fo great that they admit of rio 'Calculation,
and the confideration to be paid for them firiks
below comparifort.
j. There are certain duties fo ftrorigly enforced
by moral obligation, that nothing will juftify
a violation of them but inability or impoffibi-
lity to perform them ; fuch as, the payment
of a debfjuftly contracted ; the f fulfilling a
promife made for a reafonable arid juft con*
^deration ; the making fatisfadtron for injuries
fuftained through a violatiori of a juft cove
nant or engagement, or a juft recompenfe for
benefits received at the experice of others ; and
adequate compenfation for damages or injuries done.

[ "3 ]
done *. Thefe are moral axioms, which carry
with them no lefs evidence than mathematical
demonftrations. In all thefe cafes, the moral
obligation has been efteemed fo great, that
the legiflatures of States have fubjedted the
property to ' feizure, , the perfon to perpetual
imprifonment, and, in fome inftances, obliged
the debtor to give up his freedom and the
produce of his labour, until the duty is fully
difcharged. The debt due from the nation is
certainly of this kind. The human mind can
conceive no duty where the moral obligation
to difcharge it, is more folemnly enjoined by
the laws of God and man. 'It is a debt due
from the whole people of Great Britain, not
only arifing from the moft important fervices
'done, but from a two-fold violation of their
public faith and engagements. The property
of the Loyalifts has been loft, through a breach
of the facred engagement entered into, by the
fovereign authority, and confirmed' by the ef-
fential laws- of the State, to protect them ; and,
as the nation is reprefented in, and acts by, i
* " No human eftablifhment, no connection into which
" mankind can enter, can fuperfede the obligation of that
" general and inviolable law of nature, that the damage we
'' have done to another mould be repaired, excapt the fuffer-u
" ers have manifeftly renounced their right to reparation."
Burlamaqui, part iii. c. 5. f. 14.
0^ thai;

[ "4 ]
that authority, of courfe, through a breach of
that engagement by the whole nation. It has
moreover been given up as the price of peace *¦,
and as a facrifiee to the neceflities, fecurity,
and .happinefs of thofe who were facredly
bound to protect and preferve it. Befides,
the advantages and intereft)s derived from the
breach of the national and fovereign faith, to
thofe who have committed it, infinitely fur-
pafs in value the fum neceffary to make a due
reparation, and this reparation is exprefsly en
joined by the original and immutable laws of.
the Britifh conftitution. It is therefore a debt
of the highefi and moft inviolable nature,
from which Parliament can never honourably
and juftly difcharge itfelf, but by making
adequate compenfation ; nor can -the moral
obligation to do it be by any means fiifperided,
for a moment, but by national inability and
infolvency. To ufe many arguments to prove that the
pation is not infolvent, but able to difcharge
all its debts wit;h honour, is unneceffary, fince
greater demonftrations of wealth than are to be
found in any country in Europe, appear
wherever we caft our eyes. To which it can
not be neceffary to add any other proof than
* See the Appendk. that

t »5 1
that declaration penned by the firft Minifter
of Great Britain (whofe peculiar duty it is
to uriderftand the national refources), and de
livered by the mouth Of Majefty itfelf, " That
" our commerce and revenue are in a flourifh-
" ing ftate."
We will therefore leave the chimerical idea
of national infolvency, there being nothing
more abfurd and contrary to truth ; and pro
ceed to fhew with what eafe the demand of
the Loyalifts may be fatisfied. We will take
for grarited, what will not be denied, that
there are eight millions of perfons in Great
Britain who contribute towards the national
expences ; and fuppofe, that the debt due to
the Loyalifts fhould amount even to the fum
fuggefted by the Minifter who negociated the
peace, which will not be the cafe ; it would
require to pay it in five years, only one fhilling
and fixperice each perfon per annum; and,
to fund and place it upon a par with that of
the national creditors, it will require lefs than
four pence per annum each perfon ; which
would amount, on the whole, to a fum con
siderably lefs, as experience has fhewn, than
can be eafily raifed by voluntary contributions
to' an annual lottery. .
Q^2 Here

1 "6 1
Here we find, when this debt to the -Loyalifts
fhall be fairly diftributed among thofe who
enjoy the benefits arifing from it, as both
reafon and law direct, it will be fcarcely felt.
And when it is further confidered that it may
be paid, in a mode yet more eafy to the na
tion at large, and without adding in the Ieaft
to its prefent burthens, by the voluntary con
tributions of thoufands who are ready to make
them, no reafon can be affigned why it has
not been done long fince.

*a

"Under thefe circum fiances, it is impof
fible for us to fuppofe, there -is a man in
Great Britain, who, undeviiandlngthe, nature
and import of the debt due to the Loyalifts,
the benefits he has long enjoyed in confe
quence of it, the facility with which it may
be paid, and the high obligation he is under to
difcharge it, will not cheerfully contribute, his
proportion towards it. Is there orie honeft and
liberal mind which can enjoy benefits obtained
by the facrifiee of the lives, and fortunes of his
innocent and faithful fellow-fubjects, without
making a juft recompenfe ? Is there, one man
of the leaft degree, of fympathy and humanity,
who can fee his. brethren, equally entitled with
himfelf to the protection of the State, made
4 the

[ "7 1
the victims to their peace and happinefs,
without contributing his quota to refcue them
from the oppreffion ? If there are perfons
fo loft to all fenfe of reafon, juftice, and hu
manity, let them confider, that the cafe of the
Loyalifts may foon be their own. Rebellions
and war may and will happen ; their property
may be taken, deftroyed, or given up to the
public neceffities without their confent; and
they, like the Loyalifts, with their helplefs
families, may be reduced from affluent for
tunes to poverty and want, while others enjoy
the benefits arifing from the oppreffion and
injuflice done to them. Indeed the facrifiee
of private property to the public benefit is a
common cafe. It has occurred as often as a
rebellion or war has happened in Great Bri
tain. Should a precedent in the cafe of the
Loyalifts be eftablifhed by the highefl autho
rity, for refufing the protedtion and indem
nity due to the fubjedt, where will they find,
in their cafe, relief from the oppreffion ?
It may alfo not be improper for Parliament
to confider, that foreign nations will not fail
to exult at finding fo great a want of public
juftice in the Britifh government, the ftrongeft
of all poffible proofs of a decline in the wif-
dom and power of States; and that the fubject at

at home writ clearly perdeivej he can riot iri
future rely on any protection or indemnity
for the facrifiee, which may at any tirrie be
made, of his property for the public benefit,
riot for the loffes he-may fuftaitt byjiis fidelity
to the Crowfl, and zealous, exertions in de*
fence of the State. Will he not reflect, that a
ftate( of neutrality will be his only fecurity,
and that he tan be under no obligation to do
more ?
CHAP. TX. .'
Objections anfwered.
CHOULD it, be objected to the preceding
arguments and authorities^ " that the pro-
*' perty of the i Loyalifts was confifcated, , and
" in the hands of the American States before
*' the treaty ; :that Great;, Britaift"; having ufed
" her utmoft endeavours, to. recover it, was
" obliged to relinquifo itji and therefore, that
" fuch relinquifhing is not to be confidered as
" a ceffion of it, nor are the Loyalifts entitled
" to the fame compenfation as if if had been
"ceded," To this objection We anfwer,
that it is more fpecious than juft, arid without
the leaft foundation in reafon. We fufpect
it has arifen from a fuperficial examiriatiori of
the

C "9 1
the law, in the cafe where a State has been
ohliged to relinquish or abandon a part of its
territory, " when there has been evident
" danger of their perifhing if they continue
" together*." This renders it neceffary to
enquire what the law is in fuch cafe. The
authorities all agree, " that a fovereign can-
" not, even under fuch circumftances, force
" his fubjects in the province he abandons, to
" fubmit to another government." He can
not annihilate the obligation he is under to
protect them, although he is prevented by
neceflity from doing it at the time, nor
diffolve the union between him and his fub
jects by a transfer of their allegiance to the
conqueror, without their confent \. " He can
" lawfully do no more under the law of necef-
" fity, than merely withdraw his forces, and
" abandon the inhabitants," who make their
election to remain after his forces are with
drawn. For fhould any of them chufe to
leave the territory abandoned, and follow his
ftandard, or to retire to his other dominions,
determined to adhere to their allegiance, he
cannot, without violating the moft facred and
immutable laws of civil fociety, refufe them
the protedtion due to them before as fubjects ;
* Burlamaqui, p.iii. c. 5. f. 52. f Ibid. f. 5 3 .
nor

f 1 20 j^
nor is there one inftance to be found, where
any fovereign has ever committed fo great a
violation of reafon, juftice, and law.
Indeed the utmoft extent and operation of
fuch abandonment is this : it, leaves thofe
who, from motives of intereft and the im-
pulfe of neceflity, ehufe to remain in the ter
ritory abandoned, the right and privilege of
taking care of themfelves, either by defending
\t ; or, in order to fave their property from
plunder and to fecure their ppffeffions, hyfiub-
mitting 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, diffolved. Thus the difunion,
with all the confequent loffes and misfortunes,
although effedted by neceflity, takes .place with,
the confent of both parties. And this difunion
is what is called in the books, " a pure mif-
"fortune, which ¦< muft be fuffered by the
"abandoned part *. ;" by the people who have
chofen to remain, either with defign to defend
themfelves, or to fave their eftates by fub-
mitting tp a new Sovereign ; a misfortune
m ¦ which

t «il 1
which no reafon, juftice, or law can require
their former Sovereign to compenfate.
Such is the law in a cafe where the Sove
reign has been obliged, through neceflity,
tnenely to abandon or relinquifh a diftridt, and
where the people in it, finding themfelves not
protedted, refufe to follow the difireffed fiand-
ard of their country, from an expectation of
doing better. Here they are difengaged from
the ties of allegiance, and the Sovereign from
his obligation to protect and indemnify them
for lofles fuftained in confequence of fuch
difengagement. But the law is very different
^ where fubjects have faithfully fulfilled their
political engagements with their Sovereign,
and continue to adhere to the fate ofi their
country in fiuch extremity, and have, in con
fequence of their allegiance, loft their pro
perty ; or where the State, through neceflity,
has been obliged, by treaty, formally to give
up the property fo loft. In thefe cafes, we
affirm, that it appears from every author,
whether on the politic laws of States in ge
neral, or on the fundamental laws of the
Britifh conftitution in particular, that pro
tection and compenfation are due to the fub
ject. For here the mutual obligations of
allegiance and protedtion, which are declared,
R in

[ 122 J
in every authority on the fubject, to be' in
their nature permanent, perpetual, and in~
vhlable, Without the mutual confent of the
Sovereign and fubjedt, are riot, and cannot,
be,- diffolved ; arid therefore there is no cafe
to be found in any book, where the com
penfation has not been adjudged, and accord*
ingly made.
Now this is truly the undifguifed cafe of
the Loyalifts. They were called upon hy
his Majefty and the two Houfes of Parlia-j
ment, to defend his authority and their rights,
when in imrninent danger. His Majefty and
thofe Houfes, tb draw them forth, entered
into the moft folemn engagements, that they
would protect and indemnify 'them in their
fidelity and zeal. They have ftepped forth,"
in fupport of that authority and thofe rights,
without any other confideration than the r
fenfe they entertained of their duty. Many
of them have fpilt their blood in the caufe of
their country^ and others incurred innu- ,
merable difficulties and dangers; and in di- \
rect confequence of their fidelity, and a want.
of the protection due to them by law, have'
loft their whole fortunes ; and moreover, have
followed the ftandard of Great Britain, with-
ouf tt rhurmiir attheif diftrefs, through all its,
- -'- ¦¦ dangers

[ 123 I
dangers and extremities. What a confider
ation! what a price is here paid to enfure
the protection due by law, by the royal
faith and the parliamentary engagements fo^
lemnly pledged to them for their indemnity!

But " the property of the Loyalifts," fays
the^objedtor, " was confifcated, and in the
" hands of the American States before the
" treaty." That fuch an objection fhould be
flartedby a Briton is ftrange indeed. Will
he not be overwhelmed with fhame and con-
fufion, when he confiders by what means
thofe confifcations happened ? The Loyal
ifts, at the commencement of the rebellion,
were in the peaceable poffeffion of their
eftates, and might have continued fo to the
end of the conteft, had they acquiefced under
the meafures of the infurgents, who neither
difturbed nor intended to difturb them in
their perfons or poffefilons. The war was
againft the authority of the Britifh crown
and the rights of Parliament, and not againft
their lives or their property. Led forth by
their confidence in the faith of Majefty, and
their reliance on the facred promifes pf Parlia
ment, they zealoufly endeavoured to fupport
and defend thofe rights. Hence, and hence
only, did they incur the rage and vengeance
RY of

of the insurgents.' Hence, and hence only,..
their property, was confifcated and their per<!-
fons attainted, and ¦ many of them put to an
ignominious death, through a want of that
protedtion which, was \,due to them bylaw,
and for which the Royal faith and parlia
mentary declarations were unequivocally and
folemnly pledged j and hence, "their pro-
" perty was confifcated, and remained in the
" hands of the American States at the time pf
" the treaty." f Are thefe ^reafons, why they
ought not to be compenfated for property
thus loft?^ Are fuch fubjects lefs entitled to
compenfation than the peaceable and inadtive
citizen,, whofe. cattle, have been .deftroyed to
prevent infection, or whofg fhips have been
/cleUToyed ,, to .'-prevent the, plague, or ^ whofe
goods *have been- deftroyed. by. rebels, and
traitors, or ceded., in a .treaty with the teni-
tqry.? For in thefe infta,aees, the cafes cited
from the Journals of Parliament evidently
fhew, that ample compenfation ought to be,
and has ever been made:' Does -not their
claim ' ftarid upon much higher- ground off
public merit -than any' of- the cafes' cited, or,
than f any ever yet brought before -any
tribunal ; and is it -'not ; only > eftablifhed
on the fame law, but oma rock which
cjmnot be Ihaken^ the faith cf Majefiyf and thg

[ ™5 1
the .honour , of both. Houfes of" Parliament
UNITED !
But the property of the Loyalifts was con
fifcated and in the hands of the Americans 'be
fore the treaty, and Great Britain wds obliged
to relinquifh it, but did not cede ity This is a
diftindtion which is truly more a fubjedt of
ridicule than ferious refutation. \t is. what
the logicians call a diftindtion without p. dif
ference. For whether Great Britain merely
abandoned (which feems to be the meanirig of
the' objection,-. if it means any thing) or rieded
'the property confifcated tb the American
States with the territory, it- cannot vary the
law upon the claim. For we have fhewn,
that' at the -time their eftates were confifcated,
and before the treaty, their right to protection
and the obligation which his Majefty and Par
liament Were under by law, and their repeated
promifes fo afford it, were violated, and their
! right of courfe to compenfation complete.
But fuppofing America had been merely
abandoned, the Britifh State did not leave the
Loyalifts at the time any one privilege of
'abandoned fubjects. Many ,pf them had no
property- to defend, for that had been long be
fore loft through a want of public protection.
They were left no; choice of fubmitting and.
making

inaking their peace with- the new States; for
thofe States.had condemned the¥fl to die, 'and
the £ritifh ygovernmenrfi by 3 acknowledging
their, fovereign powers, had ratified the unjuft
fentenee.. Befides, this diftindtion is founded in an af-
fertion which is not 'true,' that " Great 'JBri-
*m&n has only reliriquifhed or aban^pneW;-p||j
'^rififbateo^rpf Sty of the^Lopifts, ar&[
"'did riot cede it,*' Upon, examining the
fatB, it will be foWrijf that the Britifh forces
remained in" the' pp™ffion of New [; York,
Ldtigvifland, and Staten, Iflan^, arid all the.
fortification's on the lakes, with more than one
hapVof the territory ceded, long after 'the
treaty-; and that in thofe diftricfs much of the
property confifcated remained in the actual
pofteffion of the Loyalifts at the time it Was
ghfoa^UR, in purfuance of the treaty*,' It is
--• aW
. .  ,„..,. • *i?mvot
*\G'eorgia had not only been recovered out of the* hands 'of
the jjfijrgents irj 1779, buththe jJrdvince^was'put at the-'pea'cft '
of the King by his Majefty'j.:CQmmifiioners> and the- King'8:';
civil government reftored, and all ,the loyal inhabitants re-
quirediiby. proclamation^ to' return- tb th'eir. 'Settlements, ancl an
affenjb^rcalk^, . and. a8:uaHy.tfubfiftin'g; arid all the civil'offiters
in the exercife of their functions, when,.order-s came in '.1782
to ev^tcttate the country, and deliver i| up^to the rebels, which,.
was ^oifciifio'drdiS^ly- without any ilfpulgSfi^n in favour of the
attainted Loyalifts^ or r, their .confifcated .-vp-operties, although? .<
the $»cf ydfj^e Rebels. 'in 5 that country was fo-pflr&rjfidetablei. that -.
baa

C **7 ]
alfo a fact which can be proved, and What the
Minifter will candidly confefs, that the con
fifcated property was, by a mutual contract,
given up to the United States, as a confidera-'
tion and fatisfadlion for, and in difcharge of
the damages done by the feizures and defla
tion of the property of the American citizens,
alleged by them to have been committed by
the Britifh forces, and as a part of the pur
chafe and price of peace. Do thefe facts fhew
a fingle feature of a country merely abandoned?.
or dp they not prove that ^11 the property
confifcated has been actually ceded ?.
W;hen we look into the treaty itfelf, We
find: that; the, words ,and fenfe of the '-parties'"
confirm the fame truth. His JMajefty " ac-""
" knowledges", the people of the territory,0
who' were before , bound to him by the ; moft7
facred obligations of allegiance, to be " free,
" fovereign, and independent States." By
this acknowledgment, and -thus treating with
them, he in law pardoned their offerices againft
the Crown, releafed them from all their poli
tical duties to the Britifh Statey and! confirrned
their ufurped rights of government over the
territory, and with them the adts of attainder
that the Loyalifts offered: Ui' the King's General to preferve the
province1 for' his Majefty, if he would leave them a fingle re-
janex«*f foot and the Georgia Rangers to afuit them.
and

and confifcation, and cbnfequently their right
to hold the confifcated property under thofe
acts. His Majefty further, for himfelf, his
heirs and '* fucceffors, relinqUifh.es all claim
" to the government, his property arid terri-
" toria'l rights of the faid States, and every
" part thereof;" by which his Majefty has
rnanifeftly and actually ceded all his right to
the gbvernment and property, and every
right incident to the dominion of the terrP
tory ; in Which -it muft be confeffed is included
the confifcated property. For it cannot be
contended, that his Majefty, by the word'
" relinquifh," only meant to " forfake," and
merely " .abandon", the government, pro
priety, and territorial rights of the States.
To do this, no treaty, but a mere withdraw-.,
ing of the Britifh forces,, was neceflary; and,.
in that<cafe, the title of the Crown of Great
Britaimto the government and foil of the co
lonies, would not have been given up. But,
furely, the intent and meaning of his Majefty
was to " releafe, give up, and; cede" (as the.
word relinquifh in all treaties imports) " all
*' his. claim" to the dominion and fovereign
rights of . the country, (t and of, every part
" thereof." In this light, we imagine, the
United States uriderftood the treaty when they
ratified it. Indeed, this is the declared in-.
• .':-"• tent

[ 129 ]
tent of the treaty itfelf, which is, " to fecure
" to both parties perpetual peace and har-
" mony," and to exclude " all feeds of dif-
" cord." Now, if the word relinquifijj only
means to forfake or abandon, then there is no
peace nor harmony fecured. The fame caufes
of quarrel remain as before the treaty.
There is no point more clearly fettled by the
law of nations, than that a mere abandonment-
of a country, transfers to the conqueror no
right either to the dominion or foil. The fo-.
vereign, who abandons it, may, at any time
after, lawfully. refume his right, or make war
on the poffeffors until it is obtained : fo that
if his Majefty has not by treaty actually ceded>
the confifcated property, he may lawfully go
¦to war with the United States for the recovery *
of it ; or he may grant letters of reprifal to
the Loyalifts for the injuries done them by
the States. Such is the mifchief in which
this abfurd diftindtion would involve both
countries I
It is painful to be obliged to anfwer every'
trivial objection to fo plain a claim. 'Bur a^
we have no hope, however diftrefling our
fituation, or juft our right, or however' lorig
that right has remained undifcuffed, of being
heard, either by ourfelves or counfel, in the
S high-

[ I> ]
high court where our fate muft be determin
ed, it is our duty,, not to leave any conceiv
able objection unanfwered. It has been faid,
" Tlut the right of the fubjedt to compenfa-
" tion for property ceded with a diftridt al-
"' ready in the hands of the State to which it
li is ceded, is not the fame as for property
" ceded with territory in the poffejfton of the
' " State ceding it." We have fearched for
this diftindtion in the laws of nature, which
we have fhewn to be a part of the laws of
England, in the principles of reafon arid
•juftice, in the fundamental laws of all regular
civil fodieties, and in the particular laws of
the Britifh govern fneritj^and we cannot find
it. The' laws of nature eftablifhed by the
supreme omnipotence, the principles of
reafon and juftice, and the fundamental laws
of all civil focieties, where the rights of the
fubjedt are fecured, are the fame. They all
tell usj that every rhap who enters into civil
fociety, gives up his natural independence,
and fubmits his will, his ftrength, his per
fonal fervices, even to the rffk of his life, tOT
gether with a right to difpofe of his property
in cafes of public neceflity, to the command
' and direction of the fovereign, to enjitre the
.protection which he wanted in his ftate of
natural

t 131 ]
natural independence ; that this ceffion of his
natural rights is the high price, the great con
fideration paid to the fovereign authority of
every State for fuch protection : That 'this
mutual covenant of protection and allegiance
is, in its nature, immutable and perpetually
binding as long as the fociety exifts : That it
cannot be diffolved or impaired, but with the
mutual confent of both parties, or by the
actual diffolutiori of the fociety : That while
the Sovereign fulfils his covenant by protedt-
ing the fubjedts, their allegiance is moft fa-
credly due ; and . while the fubjedts perform
their allegiance, the Sovereign is moft facredly
bound to protect them : That if the fubject
violates this covenant, and acts " contra li-
" geantiamfiuam debitam" he is guilty of high
treafon, and fhall fuffer death ; and if the
Sovereign violates it, by not affording the
protedtion due, he is, e contra, bound to repair
the damages fuftained by making the fubject
adequate compenfation. And this protection
being due from the Sovereign, as the repre-
fentative of the whole, and of every individual
of the fociety, if he has not money in his
exchequer fufficient to repair the damages
done through a violation of this covenant,
" all are bound to contribute their proportion
" towards it"
SY Thefe

[ *32 ]
Thefe truths being clearly fettled, where
fhall we find the difference between the right
of k fubjedt who has, loft his property by a
ceffion of territory unconquered, and that of a
fubjedt whofe property has been loft through
a warit of the protedtion due by law, and
afterwards ceded to the conqueror ? There is
nbrie fuch to be found in any book on politic
law whatever. They all fpeak in general
terms of the property of fubjedts " ceded or
" given up," and declare compenfation to be
due for it, without intimating that fuch a dif
tindtion ever exifted. " Ubi lex non difiin-
" guitur, ibi nos non difinguimur" is an efta
blifhed maxim in the conftruction of all laws.
If fuch a difference was ever before thought
of, it is. ftrange it does not appear! Befides,
the words " cede and give up" are the exprefs
words of the books, and the tiue arid radical
meanirig of them is, with much f more pro*
priety, applied to territPry conquered, than to
th^t which is in the poffejfton of the fovereign
ceding it. For the common and true fenfe of
the terms is to " releafe, to refign, and to quit
*' ..claim." to a right to fomething not in our
poffeflion, .and therefore, they are ufed in 'a
transfer of the right, and not of the poffejfton^
But. in the conveyance of property in our
Ipn, it Is ufual to define it in terms much

[ *33 ]
much more fignificant of the true meaning of
our intention. Here we ufe the words " grant,
" convey, furrender, deliver" the pofleffion
of the property intended to be conveyed. Such
a ceffion therefore never has been conftrued
to extend to a transfer of the private poffef-
fions and properties of the people in the terri
tory ; for, fay the authors on politic law,
" the fovereign power, however abfolute, is
" not invefted of itfelf with the right of pro-
" perty, nor confequently with the power of
" alienation."
The. law is the fame in refpedt to a ceffion
of a territory in the hands of the conqueror.
The ftate to whom it before belonged, may
cede its right to the dominion and fovereign.
power over the territory ; but it cannot law
fully transfer a right over the people without
their confent; and it is for this reafon that
every State, when it has ceded a part of its
territory to the conqueror, has endeavoured
to avoid or leffen the burthen of this com
penfation by ftipulations in the treaty on the
behalf of its faithful fubjedts, whom it has
not been able to protedt ; which bind the con
queror to give up his right over the perfons
and private fortunes acquired by his conqueft,
and either to adopt them as fubjects with their
confent,

E *34 ]
confent,, pr to fuffer them, after difpofing of
their property, to return to their former alle
giance. But in either cafe, if dire neceflity
fhould compel the fovereign authority to fur-
render, by the exprefs terms of the treaty,
the property of a part of its fubjedts, together
with its own rights ; " and to wound a part,
" that the whole empire may not perifh*;"
reafon and juftice, as well as the obvious prin
ciples of the focial compact, evidently require
'<¦ that the facrifiee thus made for the public good,
and the lofs thereby fuftained, fhould be com-
' penfated at the public expence ; and if great
and important advantages are fecured by fuch
furrender to the other part of the community,
the right of the fufferers to compenfatibriis
ftill more clearly eftablifhed, for it is becorrie
a debt due not only from juftice but alfo from
gratitude.
* Vid. Lord Shelburne's Speech*

[ *3S 3

APPENDIX.

'HP HE Commiffioner on the part of Great
Britain did propofe a reftitution of the
confifcated property ; but the anfwer made by
the American Commiffioners was, that they
had no power from the feveral States to re
ftore it ; and, if they had, they muft infift
upon compenfation for the defolation and
damages committed by the Britifh forces, on
the towns, private houfes, and properties of
the American citizens, contrary to the rules of
war, an account of which had been taken by
order of Congrefs. Upon this it was agreed,
that no actual ftipulation fhould be made for
fuch reftitution ; but that it fhould be left to*
the pleafure of the States, either to keep the j
property confifcated a s a fatisfadlion for fuch 1
defolation and wafte, or to reftore it: that,
however, Congrefs fhould recommend to the
States to make the reftoration ; and upon this
the peace was made, and the reftitution left to
the pleafure of the States.
Upon this ground, when the States took
into confideration the refolve of Congrefs re-
o, com-

[ .136 ]
commending the reftitution, they refufed to
make it. The State of New York refolved,
that there could be " no reafon for reftoring
*' property r which had been confifcated or
" forfeited," as no compenfation had been of-
<f fered on the part of Great Britain for the
." damages fuftained by the States, and their
." citizens, from the defolation aforefaid:"
And all the, other States have adted upon the
^ajrnje principles. From which it is evident, that
the confifcated property of the Loyalifts was
.both implicitly and exprefsly given up to the
States as a. compenfation for the irregular de
fecation with which they chargedvthe Britifh
army; and as the. Minifter who made the
peace has candidly declared, that ," he had
" no alternative," but to fubmit the reftitu
tion to the mere recommendation of the Con
grefs, it follows that it was alfo given up as
,the price and purchafe of the peace.
To fupport thefe truths, we here infert the
refolutions of the State of New York;
H. Refolved, That it appears to this LegifiV
ture, that' in theprogrefs of the late war, the
adherents to the King, of Great. Britain, in-
ftead of being reftrajned to fair and, mitigated
hoftilities, which are only permitted by the
laws of nations, have cruelly ' ipaffacre^with- out

t *3* 1
out regard to age or fex, many of our citi
zens, and wantonly defolated and laid wafte
a great part of this State by burnings not only
fingle houfes, and other buildingSj but even.
whole towns and villages, and in enterprifes
which had nothing but vengeance for their
object. " And that, in confequence of fuch un
warrantable operations, great numbers of the
citizens of this State have, from affluent cir-
cumftances, been reduced to poverty and
diftrefs. " Refolved, That it appears to this Legifla
ture, that divers of the inhabitants of this
State, have continued to adhere to the King
bf Great Britain, after thefe States were de
clared free and independent, and perfevered
in aiding the faid King* his fleets, and armies,
to fubjugate the United States to bondage.
" Refolved, That as on the one hand, the
rules of juftice do not require, fo on the
other, the public tranquillity will not permit,
that fuch adherents who have been attainted,
fhould be reftored to the rights of citizens.
" And that there can be no reafon for re
ftoring property which has been confifcated
or forfeited, the more efpecially, as no com-
T penfation

[ I3» 3
penfiation is offered on the part of the faid
King, arid his adherents, for the damages
fuftained by this State and its citizens, from
the defolation aforefaid."
The amount of the fum claimed by the
United States, for the damages done by the
Britifh forces, far furpaffed that now claimed
by the Loyalifts. And as Great Britain muft
have paid for thofe damages, or have con
tinued the war, had fhe not given up the
property confifcated; it is evident, that fhe
has difpofed of it for more than an adequate
confideration, and is a considerable gainer- by
the bargain,

FINIS,