1781.
of perſons then inhabiting the ſtate, or who ſhould thereafter become its inhabitants. Hence a deſcriminaion is evidently made between thoſe perſons, and ſuch as had previouſly joined the enemy;—meaning that this election to adhere to the Britiſh government, ſhould not expoſe the party to any future puniſhment. It is true, that there are not any negative words to this effect; but, taking the act for the revival of the law alſo into conſideration, we think the deſire and intention of the legiſlature ſufficently appears to have been, to allow a choice of his party to every man, until the 11th of February, 1777; and that no act favouring of treaſon, done before that period, ſhould incur the penalties of the law.
This conſtruction, it may be ſaid, is favorable to traitors, and tends to the prejudice of the Commonwealth. But we cannot be influenced by obſervations of a political nature in the expoſition of the law; it is our duty to ſeek for, and to declare, the true intention of the Legiſlature; the policy of that intention, it is their duty to conſider. The ſentiments which I have now delivered, I always entertained. On the 13th of Auguſt 1779, the Executive Council had fifteen or ſeventeen perſons in their power, who, though not attainted, were in circumſtances ſimilar to the Priſoner’s. On that occaſion I was conſulted, and gave the ſame opinion; but with great diffidence, owing to the novelty of the queſtion. Thoſe perſons were, accordingly, treated as Priſoners of War.
But there is yet another important point to be examined in the caſe before us. By an act, ſubſequent to all thoſe which have been mentioned, it is declared,
“that all and every perſon and perſons being ſubjects or inhabitants of this ſtate, or thoſe who have real eſtate in this Commonwealth, who now adhere to, and knowingly and willingly aid and aſſiſt the enemies of this State, or of the United States of America, by having joined their armies within this State, or elſewhere, or who hereafter ſhall do the ſame and whom the Supreme Executive Council of this State, by their Proclamations to be iſſued under the State ſeal, during the continuance of the war with the King of Great-Britain, ſhall name and require to ſurrender themſelves, by a certain day therein to be mentioned, to ſome, or one, of the juſtices of the Supreme court, &c. and ſhall not render themſelves accordingly &c. ſhall from and after the day to them to be prefixed by ſuch proclamation ſtand and be attainted of high treaſon to all intents and purpoſes, &c.”
–Under the authority of this clauſe, the Priſoner was duly required by proclamation to ſurrender himſelf; and, therefore, his caſe ſeems to come properly within the act.
Generally ſpeaking ex poſt facto laws are unjuſt and improper; but there may certainly be occaſions, when they become neceſſary for the ſafety and preſervation of the Commonwealth; and although no Legiſlature had previouſly met, yet the aſſembly that paſſed this law, if they were impreſſed with the neceſſity of the caſe, had incontrovertibly a right to declare any perſon a traytor, who had gone over to the enemy, and ſtill adhered to them. The validityand
