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RESPUBLICA verʃus SAMUEL CHAPMAN.

B

Y a proclamation, dated the 15th June 1778, iffued by the Supreme Executive Council, in purfuance of the act Affembly, paffed the 6th of March preceeding, for the attainder of divers traitors, &c. the prifoner had been required to furrender himfelt on the 1ʃt of Auguʃt following, &c. or to be attainted of high treafon agreeable to that act. The time allowed fro this furrender being elapfed ; the Attorney General filed a fuggefftion, in the ufual form, ftating that Samuel Chapman the prifoner was the perfon required by the proclamation to furrender himfelf, &c. that he had not furrendered himfelf, &c. The Chief Juftice then afked the prifoner, what he had to fay, why execution fhould not be awarded againft him

Upon which the faid Samuel Chapman, the prifoner, faith oretenus, that he was born, and hath ever remained and continued a fubject of the king of Great-Britain, and is now a prifoner of war; and that he is not, nor hath ever been a ʃubject or inhabitant of this Commonwealth ; nor hath he, nor he never had, any real eftate in this Commonwealth ; neither hath he at any time owed allegiance thereto : Wherefore he prays that execution may not be awarded againft him, &c.

The Attorney General replied that faid Samuel Chapman, the prifoner was an inhabitant and fubject of this Commonwealth, &c. and that he did owe allegiance thereto,&c. Whereupon iffue was joined.

The evidence upon the trial of this iffue was, that the prisoner was born in Bucks County in this State, and that be had refided there until the 26th day of December 1776, at which time he departed and joined the enemy. Whether, upon thefe facts he was to be confidered as an inhabitant and fuject of the Commonwealth of Pennʃylvania, at the time of his departure, was the great queftion to be decided.

His counfel argued that on the 26th December, 1776, there was no government eftablished in Pennʃylvania, from which he could receive protection ; and confequently, there was none to which he could owe allegiance–protection and allegiance being political obligations of reciprocal nature. The doctrine of perpetual allegiance to be found in the books, applies only to eftablished and fettled government, and erecting a diftinct one. Then every member of the community has a right of election, to refort to which he pleafes ; and even after the new fyftem is formed, he is entitled to exprefs his diffent ;and, diffenting from a majorit, to retire with impunity unto another country. Upon this principle, it was aferted that the prifoner never was a fubject of the State of Pennʃylvania; and ​

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the following narrative of the meafures purfued in organizing the conftitution, was delivered in fupport of the affertion.

The firft act of legiflation, under the conftitution was paffed on the 21ʃt January, 1777. On the 28th day of the fame mouth, the laws of the late Province, with certain reftrictions, were, from and after the 10th day of February then next, to be revived ; and on the 4th of March following, the firft Preʃident and Vice-Preʃident were elected ; when elected ; when alfo, the firft minutes were made on the records of the Supreme Executive Council. So that the prifoner's departure from this State, on the 26th December, 1776, was near a month antecedent to any legiflative act ; and near three months before all the branches of the government were organized and put into actual operation.–Befides, the at for the revival of the laws, exprefsly admits that they were not in force from the 14th May, 1776, until the 11th February, 1777 ; and the act for declaring what fhall be treafon, which did not pafs till the laft mentioned date, excludes every idea of retrofpect ; declaring only, ‘‘ that all perfons now inhabiting, &c. within the limits of the ‘‘State of Pennʃylvania ; or that fhall voluntarily come into the ‘‘fame hereafter to inhabit, &c. do owe and ʃhall pay allegiance, ‘‘&c.’’–The prifoner, at the of paffing this act, was not an inhabitant ; nor had he fince voluntarily become one. He does not, therefore, ow allegiance to the State, and cannot be denominated a fubject of Pennʃylvania.–With refpect to the act of the 6th March, 1778, on the authority of which the prefent proclamation iffued, it is evidently an ex paft ƒacto law, and as fuch, contrary to the words, and fpirit of the Conftitution. But if the prifoner never was a fubject of the Commonwealth of Pennʃylvania, this law cannot operate againft him in the decifion of the iffue before the court.

The Counfel for the prifoner cited the following authorities in the courfe of their argument : Puƒƒ. 639. Lock. on Gov. 229. 168. 227. Vott. 23.25.b.3.p.109. Burlimaui 27.33. I Blackft. 45. Foƒter C.L. 55. Harvey's cafe.

The Attorney General ftated the queftion to be, in fact, whether Pennʃylvania was a Commonwealth on the 26th day of December, 1776? By the declaration of independence, on the 4th July, 1776 every Sate in the union was folemnly declared to be free and independent. But even before that period Congrefs had recomnnedned, that new governments fhould be famed, adequate to the exigency of the public affairs ; and a Council of Safety, with other temporary bodies, actually difcharged the functions of the State. See Journals of Congrefs 10th and 14th May, 1776. 4th of June, 1776. 16th June, 1776. 24th do. and July 14th.

In confequence of the declaration of independence, however, a General Convention affembled at Philadelphia on the 15th July, 1776 ; and on the 28th of September following, agreed to that focial compact under which the people of this State are now united. It appears that a ƒorum of legiflative body, created by the conftitution ​

thus eftablished, met on the 28th of November, 1776, and then chofe their Speaker and Clerk. 1. Min. Aƒƒ.98. On the fucceeding day the clerk was qualified, feveral public officers were appointed, and votes were entered into refpecting the collection of fines from non-affociators, and the enacting of a Militia-Law. id. On the 30th of November, the houfe having made fundry orders relative to the Militia, adjourned till the 1ft of December ; and on the 5th of that month, when the houfe were again affembled, a committee was appointed to bring in the draft of a Militia-Law, id. 100–With refpect to the Executive Council, it is true, that body did not enter upon any official bufinefs, till the beginning of March, 1777; but its member were chofen at the fame time with the members of the Legiflature.

From this recapitulation, it appears, that, even before the eftablisfment of the conftitution, a government under the authority of the people was adminiftered by councils, committees, and conventions. After the eftablifhment of the conftitution, however, the legiflative (which is the fovereign) body affembled and proceeded to difcharge its duties; and it was not neceffary to the exiftence of the government, either that they fhould have enacted a law, or that the Supreme Executive Council fhould have been convened.

Under every change of the government,Samuel Chapman, remained here till the 26th day of December, 1776; and, at that time, he was certainly a fubject of the ftate of Pennʃylvania, under the conftitution agreed to on the 28th of September preceding, whatever doubts may be entertained with refpect to the former eftablifhments. That this was, likewife, the fenfe of the legiflature, is abundantly evident from the act on which the proclamation is founded ; for, Mr. Galloway, and others, who joined the enemy in the fall of 1776, are there confidered as fubjects of Pennʃylvania; and all the ftates are clearly deemed to have been free and independent from the declaration publifhed by Congrefs on the 4th of July in that year.

The Attorney-General, to fhew the definition of a nation, the relation which a citizen bears to the ftate, and the natural connexion between a ftate of fociety and the inftitution of a government, cited the following authors: Vatt. 92. id. B. 1. c. 19. ƒact. 212. id. ƒact. 1. p. 9. id. ƒact. 4. Burlem. 25. i. Black. Com. 46. 47. 48. 213. Vatt. p. 15. ƒact. 26. id. 19. ƒact. 38

the chief justice, delivered a learned and circumftantial charge to the Jury. After ftating the proclamation, the iffue, and the evidence, be proceeded as follows.

m'kean Chief Juʃtice:–The queftion that is to be decided on the facts before us, is, whether Samuel Chapman, the prifoner at the bar, ever was a fubject of this Commonwealth ? The reafon which has been principally urged to take him out of that defcription, is that on the 26th day of December, in the year 1776 when he withdrew from Pennʃylvania, no government exifted to which he could owe allegiance as a fubject.– I fhall, in the firft place, confider how ​

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far this defence, under the circumftances of the cafe, would avail the prifoner upon an indictment forHigh Treaʃon.

The Attorney-General, has referred to the declaration of independence, on the 4th of July, 1776, when the freedom and foverignty of the feveral ftates were announced to the word ; and alfo, to a refolution of Congrefs recommending the formation of fuch governments, as were adequate to the exigency of the public affairs. The fifter ftates purfued different modes of complying with this recommendation. The citizens of Connecticut, New Hampʃhire and RhodeIʃland, confidered themfelves in a fituation fimilar to that which occurred in England, on the abdication of James the fecond; and, wanting only the form of a Royal Governor, their refpective fyftems of government have ftill been continued : while the other ftates adopted temporary expedients, till regular conftitutions could be formed, matured, and organized.

And here it is contended, that, prior to the conftitution under which we now live, the ftate of Pennƒylvania was governed by a council of fafety, and committees. But to this, it is anfwered, that until laws were paffed by a competent legiflative power, no government could be faid to exift ; and, as the act of the 28th of January 1779, for the revival of the laws, virtually fell res that they went fufpended from the 14th May, 1776, till the 11th February, 1777, it is inferred, that during that period, no allegiance was due and no treafon could be committed.

Although I think this point immaterial to the prifoner, fince a government might have exifted, and yet not be of fuch a nature as to affect him, it cannot be denied, that a kind of government, independent of Great Britain, was adminiftered in Pennʃylvania, antecedent to the eftablifhment of the prefent conftitution. The powers of fovereignty were then lodged with Congrefs, under whofe authority a council of fafety had been elected by the people, and were employed, in conjuction with other committees, to conduct the war, and to fecure, as far as fo imperfect a fyftem could, the rights of life, liberty, and property, within this ftate. It is certain, indeed, that a formal compact is not a neceffary foundation of government ; for, if an individual had affumed the fovereignty, and the people had affented to it, whatever limitations might afterwards have been impofed, ftill this would have been a legal eftablifhment–No exprefs provifion, however, has been at any time made, for defining what fhould be treafon againft thofe temporary bodies ; but it may be well enough to obferve, that treafon is a crime known to the Common-Law.

Afterwards, we find, that a General Convention, elected by the people, met on the 15th day of July, 1776, for the exprefs purpofe of framing a new government ; and during the feffions of this body, its members, collectively, affumed the powers of making ordinances, of appointing members of Congrefs, and of defining High Treafon, and its punifhments–All their proceedings and injunctions, except the ordinance refpecting treafon, were approved and ​

executed and the Conftitution which they eventually agreed upon, was incontrovertibly a diffolution of the government, as far as related to the powers of Great Britain, but not in relation to the powers which had been before exercifed by councils and committees.

The Attorney-General has urged that, at leaft, as foon as the Government, under the new conftitution was formed, which he fays was on the 28th of November, 1776, the members of council being when chofen, and the legfilature actually affembled, the fovereignty of the ftates was complete, and allegiance followed by a neceffary confequence, without the intervention of any pofitive law. But the advocates for the prifoner again object, that the government cannot be faid to be eftablifhed. Until there is a meeting of all its parts, and that as the Executive Council never met till the 4th of March, the ftate was incapable of affording protection, and, therefore, was not entitled to allegiance, before that time.

On this occafion, the fentiments of feveral eminent Civilians have been read to us ; not as authorities binding upon our judgment, but as a means of information derived from the great learning and abilities of the refpective writers, and, principally in feed, on account of the intrintic weight of the reafons by which their doctrines are fupported. Locke fays, that when the Executive is totally diffolved, there can be no treafon ; for laws are a mere nullity, unlefs there is a power to execute them. But that is not the cafe as prefent in agitation ; for before the meeting of Council in March, 1777, all its members were chofen, and the legiflature was completely organized; fo that there did antecedently exift a power competent redrefs grievances, toafford protection, and, generally, to execute the laws ; and allegiance being naturally die to fuch a power, we are of opinio,, that from the moment it was created, the crime of High Treafon might have been committed by any perfon, who was then a fubject of the Commonwealth. The act of the 11th of February, 1777 exprefsly authorifes this opinion ; for, we find it there faid, ‘‘ That alfo and every perfon and perfons (except prifoners at war) new inhabiting &c. within the limits of this ftate ; ‘‘or that fhall voluntarily come into the fame hereafter to inhabit, &c. do owe, and fhall pay allegiance, &c.’’? This, therefore, contradicts the idea, fuggefted by the advocates for the prifoner, that allegiance was not due till the meeting of the executive council on the 4th of March enfuing ; and, although he cannot be convicted upon the act, yet allegiance being due from the 28th of November ,1776, when, as I have already obferved the legiflature was convened and the members of council were appointed, treafon, which is nothing more than a criminal attempt to deftroy the exiftence of the government, might certainly have been committed, before the different qualities of the crime were defined, and its punifhment declared by a pofitive law. I Blackʃt. Can. 46.

Having thus difmiffed the preliminary queftion, whether the prifoner's defence would avail him upon an indictment for High ​

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Treaʃon I fhall proceed to enquire, if there are any circumftance that take his cafe ^{(illegible text)} the general opinion expreffed by the court upon the point.

The act for the revival of the laws, paffed the 28th of January,1777, was intended, I think merely to declare, that thofe laws,which were originally enacted under the authority of George the Third, ceafed any longer to derive their virtue and validity from that fource. But there is great inaccuracy in penning the act ; for, though it would feem, by the former part of the fecond fection, to be the fenfe of the legiflature, that from the 14th of May 1776, to the 10th of February, 1777, the operation of all the acts of affembly fhould be fufpended ; yet,, in the clofe of the fame fection, obedience to thofe acts to the common law, and to fo much of the ftatute law of England, as have heretofore been in force in Pennʃylvania,is, with fome exceptions in point of ftyle and form, exprefsly enjoined. We may, however, fairly infer from the general tenor of the act, that thofe who framed it, thought the feparation from Great Britain worked a diffolution of all government, and that the force, not only of the acts of Affembly, but of the common law and ftatute law of England, was actually extinguifhed by that event.

This, therefore, neceffarily leads to the confideration of a very important fubject. In civil wars, every man chufes his party ; but generally that fide which prevails, arrogates the right of treating thofe who are vanquifhed as rebels. The cafes which have been produced upon the prefent controverfy, are of an old government being diffolved, and the people affembling, in order to form a new one. When fuch inftances occur, the voice of the majority muft be conclufive, as to the adoption, of the new fyftem ; but, all the writers agree, that the majority have, individually, an unreftrainable right to remove with their property into another country ; that a reafonable time for that purpofe ought to be allowed ; and, is fhort, that none are fubjects of the adopted government, who have not freely affented 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 fhould be fuffered to join a party, or nation, at open war with the country he leaves, is a queftion of a fingular magnitude. The ground is hitherto untrodden, but there is fuch apparent injuftice in the thing itfelf, that I am inclined to think, it would amount to an act of treafon. Puƒƒanderƒƒ.639.

This is not, however, the fituation of the prifoner. Pennʃƒylvania, was not a nation at war with another nation; but a country in a ftate of civil war ; and there is no precedent in the books to fhew what might be done in that cafe ; except indeed, where a prince has ʃubdued the people who took arms againft him, before they had formed a regular government, which is, likewife, inapplicable here.

But this difficulty feems to vanifh by having recourfe to the opinion of the legiflature, in their act of the 11th February,1777, for, when defscribing from whom allegiance is due, they fpeak only ​

of perfons then inhabiting the ftate, or who fhould thereafter become its inhabitants. Hence a defscriminaion is evidently made between thofe perfons, and fuch as had previoufly joined the enemy;–meaning that this election to adhere to the Britiʃh governemnt, fhould not expofe the party to any future punifhment. It is true, that there are not any negative words to this effect ; but, taking the act for the revival of the law alfo into confideration, we think the defire and intention of the legiflature fufficently 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 treafon, done before that period, fhould incur the penalties of the law.

This conftruction, it may be faid, is favorable to traitors, and tends to the prejudice of the Commonwealth. But we cannot be influenced by obfervations of a political nature in the expofition of the law ; it is our duty to feek fur, and to declare, the true intention of the Legiflature; the policy of that intention, it is their duty to confider. The fentiments which I have now delivered, I always entertained. On the 13th of Auguƒt 1779, the Executive Council had fifteen or feventeen perfons in their power, who, though no attained, were in circumftances fimilar to the Prifoner's. On that occafion I was confulted, and gave the fame opinion ; but with great diffidence, owing to the novelty of the queftion. Thofe perfons were, accordingly, treated as Prifoners of War.

But there is yet another important point to be examined in the cafe before us. By an act, fufequent to all thofe which have been mentioned, it is declared,‘‘ that all and every perfon and perfons ‘‘ being subjects or inhabitants of this ƒtate, or thofe who have real ‘‘ eftate in this Commonwealth, who now adhere to, and knowingly ‘‘ and willingly aid and affift the enemies of this State, or of the ‘‘ United States of America, by having joined their armies within this ‘‘ State, or elfewhere, or who hereafter fhall do the fame and ‘‘ whom the Supreme Executive Council of this State, by their Proclamations ‘‘ to be iffued under the State feal, during the continuance ‘‘ of the war with the King of Great-Britain, fhall name ‘‘ and require to furrender themfelves, by a certain day therein to be ‘‘ mentioned, to fome, or one, of the juftices of the Supreme ‘‘ court &c. and fhall not render themfelves accordingly &c. fhall ‘‘ from and after the day to them to be prefixed by fuch proclamation ‘‘ ftand and be attained of high treafon to all intents and purpofes, ‘‘ &c.’’–Under the authority of this claufe, the Prifoner was duly required by proclamation to furrender himfelf ; and, therefore his cafe feems to comoe properly within the act.

Generally fpeaking ex poʃt ƒacto laws are unjuft anf improper ; but there may certainly be occafions, when they become neceffary for the fafety and prefervation of the Commonwealth ; and although no Legiflature had previoufly met, yet the affembly that paffed this law, if they were impreffed with the neceffity of the cafe, had incontrovertibly a right to declare any perfon a traytor, who had, gone over to the enemy, and ftill adhered to them. The validity ​

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and operation of the law, however, the prifoner is now precluded from controverting, if, at anytime before the date of the proclamation, he was a fubject of the State of Pennʃylvania.

Here,then, the matter refts. Had, the iffue been in the diʃjunctive, the prifoner would clearly have come within the defcription of an inhabitant of Pennʃylvania ; but when the word ʃubject is annexed, it means a fubjection to the fome fovereign power, and is not barely connected with the idea of territory–it refers to one who owes obedience to the laws, and is entitled to partake of the elections into public office. On this point, therefore, we muft again advert to the act of Affembly, declaring what fhall be treafon, which has no retrofpect, and to the act for the revival of the laws, which implies a fufpenfion of all the laws from the 14th of May 1776, to the 11th of Feb. 1777. If there were no laws to be obeyed during that period, the prifoner could not be deemed a fubject of the State of Pennfylvania on the 26th day of December 1776. Whether the Legiflature meant to include this cafe we will not pofitively determine ;–it is a new one, and we ought to ^{(illegible text)} cautioufly and fecurely : But, at all events, it is better to err on the fide of mercy, than of ftrict juftice.

The jury found a verdict of not Guilty.