1781.
ſon, I ſhall proceed to enquire, if there are any circumſtances that take his caſe out of the general opinion expreſſed by the court upon the point.
The act for the revival of the laws, paſſed the 28th of January, 1777, was intended, I think, merely to declare, that thoſe laws, which were originally enacted under the authority of George the Third, ceaſed any longer to derive their virtue and validity from that ſource. But there is great inaccuracy in penning the act; for, though it would ſeem, by the former part of the ſecond ſection, to be the ſenſe of the legiſlature, that from the 14th of May 1776, to the 10th of February, 1777, the operation of all the acts of aſſembly ſhould be ſuſpended; yet, in the cloſe of the ſame ſection, obedience to thoſe acts to the common law, and to ſo much of the ſtatute law of England, as have heretofore been in force in Pennſylvania, is, with ſome exceptions in point of ſtyle and form, expreſsly enjoined. We may, however, fairly infer from the general tenor of the act, that thoſe who framed it, thought the ſeparation from Great Britain worked a diſſolution of all government, and that the force, not only of the acts of Aſſembly, but of the common law and ſtatute law of England, was actually extinguiſhed by that event.
This, therefore, neceſſarily leads to the conſideration of a very important ſubject. In civil wars, every man chuſes his party; but generally that ſide which prevails, arrogates the right of treating thoſe who are vanquiſhed as rebels. The caſes which have been produced upon the preſent controverſy, are of an old government being diſſolved, and the people aſſembling, in order to form a new one. When ſuch inſtances occur, the voice of the majority muſt be concluſive, as to the adoption of the new ſyſtem; but, all the writers agree, that the minority have, individually, an unreſtrainable right to remove with their property into another country; that a reaſonable time for that purpoſe ought to be allowed; and, in ſhort, that none are ſubjects of the adopted government, who have not freely aſſented to it. What is a reaſonable time for departure, may, perhaps, be properly left to the determination of a court and jury. But whether a man ſhould be ſuffered to join a party, or nation, at open war with the country he leaves, is a queſtion of a ſingular magnitude. The ground is hitherto untrodden, but there is ſuch apparent injuſtice in the thing itſelf, that I am inclined to think, it would amount to an act of treaſon. Puffendorff. 639.
This is not, however, the ſituation of the priſoner. Pennſylvania, was not a nation at war with another nation; but a country in a ſtate of civil war; and there is no precedent in the books to ſhew what might be done in that caſe; except indeed, where a prince has ſubdued the people who took arms againſt him, before they had formed a regular government, which is, likewiſe, inapplicable here.
But this difficulty ſeems to vaniſh by having recourſe to the opinion of the legiſlature, in their act of the 11th February, 1777, for, when deſcribing from whom allegiance is due, they ſpeak onlyof
