Page:United States Reports, Volume 1.djvu/69

 58  on, I hall proceed to enquire, if there are any circumtances that take his cae out of the general opinion expreed by the court upon the point.

The act for the revival of the laws, paed the 28th of January, 1777, was intended, I think, merely to declare, that thoe laws, which were originally enacted under the authority of George the Third, ceaed any longer to derive their virtue and validity from that ource. But there is great inaccuracy in penning the act; for, though it would eem, by the former part of the econd ection, to be the ene of the legilature, that from the 14th of May 1776, to the 10th of February, 1777, the operation of all the acts of aembly hould be upended; yet, in the cloe of the ame ection, obedience to thoe acts to the common law, and to o much of the tatute law of England, as have heretofore been in force in Pennylvania, is, with ome exceptions in point of tyle and form, expresly enjoined. We may, however, fairly infer from the general tenor of the act, that thoe who framed it, thought the eparation from Great Britain worked a diolution of all government, and that the force, not only of the acts of Aembly, but of the common law and tatute law of England, was actually extinguihed by that event.

This, therefore, necearily leads to the conideration of a very important ubject. In civil wars, every man chues his party; but generally that ide which prevails, arrogates the right of treating thoe who are vanquihed as rebels. The caes which have been produced upon the preent controvery, are of an old government being diolved, and the people aembling, in order to form a new one. When uch intances occur, the voice of the majority mut be concluive, as to the adoption of the new ytem; but, all the writers agree, that the minority have, individually, an unretrainable right to remove with their property into another country; that a reaonable time for that purpoe ought to be allowed; and, in hort, that none are ubjects of the adopted government, who have not freely aented to it. What is a reaonable time for departure, may, perhaps, be properly left to the determination of a court and jury. But whether a man hould be uffered to join a party, or nation, at open war with the country he leaves, is a quetion of a ingular magnitude. The ground is hitherto untrodden, but there is uch apparent injutice in the thing itelf, that I am inclined to think, it would amount to an act of treaon. Puffendorff. 639.

This is not, however, the ituation of the prioner. Pennylvania, was not a nation at war with another nation; but a country in a tate of civil war; and there is no precedent in the books to hew what might be done in that cae; except indeed, where a prince has ubdued the people who took arms againt him, before they had formed a regular government, which is, likewie, inapplicable here.

But this difficulty eems to vanih by having recoure to the opinion of the legilature, in their act of the 11th February, 1777, for, when decribing from whom allegiance is due, they peak only of