1 U.S. 53 (1781)

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RESPUBLICA v. CHAPMAN, 1 U.S. 53 (1781)

1 U.S. 53 (Dall.)

Samuel Chapman

Supreme Court of Pennsylvania

April Term, 1781

By a proclamation, dated the 15th June 1778, issued by the Supreme Executive Council, in pursuance of the act of Assembly, passed the 6th of March preceeding, for the attainder of divers traitors, &c. the prisoner had been required to surrender himself on the 1st of August following, &c. or to be attainted of high treason agreeably to that act. The time allowed for his surrender being elapsed; the Attorney General filed a suggestion, in the usual form, stating that Samuel Chapman the prisoner was the person required by the proclamation to surrender himself, &c. that he had not surrendered himself, &c. that he was therefore attainted; and this he was ready to verify, &c. The Chief Justice then asked the prisoner, what he had to say, why execution should not be awarded against him.

Upon which the said Samuel Chapman, the prisoner, faith, oretenus, that he was born, and hath ever remained and continued a subject of the king of Great Britain, and is now a prisoner of war; and that he is not, nor hath ever been a subject or inhabitant of this Commonwealth; nor hath he, nor he never had, any real estate in this Commonwealth; neither hath he at any time owed allegiance thereto: Wherefore he prays that execution may not be awarded against him, &c. [ Respublica v. Chapman 1 U.S. 53 (1781)

The Attorney General replied, that the said Samuel Chapman, the prisoner was an inhabitant and subject of this Commonwealth, &c. and that he did owe allegiance thereto, &c. Whereupon issue was joined.

The evidence upon the trial of this issue was, that the prisoner was born in Bucks County in this State, and that he had resided there until the 26th day of December 1776, at which time he departed and joined the enemy. Whether, upon these facts he was to be considered as an inhabitant and subject of the Commonwealth of Pennsylvania, at the time of his departure, was the great question to be decided.

His counsel argued that on the 26th December, 1776, there was no government established in Pennsylvania, from which he could receive protection; and consequently, there was none to which he could owe allegiance protection and allegiance being political obligations of a reciprocal nature. The doctrine of perpetual allegiance to be found in the books, applies only to established and settled governments; not to the case of withdrawing from an old government, and erecting a distinct one. Then every member of the community has a right of election, to resort to which he pleases; and even after the new system is formed, he is entitled to express his dissent; and, dissenting from a majority, to retire with impunity unto another country. Upon this principle, it was asserted that the prisoner never was a subject of the State of Pennsylvania; and

Page 1 U.S. 53, 54

the following narrative of the measures pursued in organizing the constitution, was delivered in support of the assertion. The first act of legislation, under the constitution was passed on the 21st January, 1777. On the 28th day of the same month, the laws of the late Province, with certain restrictions, were, from and after the 10th day of February then next, to be revived; and on the 4th of March following, the first President and Vice-President were elected; when also, the first minutes were made on the records of the Supreme Executive Council. So that the prisoner's departure from this State, on the 26th December, 1776, was near a month antecedent to any legislative act; and near three months before all the branches of the government were organized and put into actual operation. Besides, the act for the revival of the laws, expressly admits that they were not in force from the 14th May, 1776, until the 11th February, 1777; and the act for declaring what shall be treason, which did not pass till the last mentioned date, excludes every idea of retrospect; declaring only, 'that all persons now inhabiting, &c. within the limits of the State of Pennsylvania; or that shall voluntarily come into the same hereafter to inhabit, &c. do owe and shall pay allegiance, &c.' The prisoner, at the time of passing this act, was not an inhabitant; nor has he since voluntarily become one. He does not, therefore, owe allegiance to the State, and cannot be denominated a subject of Pennsylvania. With respect to the act of the 6th March, 1778, on the authority of which the present proclamation issued, it is evidently an expost facto law, and as such, contrary to the words, and spirit of the Constitution. But if the prisoner never was a subject of the Commonwealth of Pennsylvania, this law cannot operate against him in the decision of the issue before the court. The Counsel for the prisoner cited the following authorities in the course of their argument: Puff. 639. Lock. on Gov. 229. 168. 227. Vatt. 23. 25. b. 3. p. 109. Burlimaqui 27.33. 1 Blackst. 45. Foster C. L. 55. Harvey's case. The Attorney General stated the question to be, in fact, whether Pennsylvania was a Commonwealth on the 26th day of December, 1776? By the declaration of independence, on the 4th July, 1776, every State in the union was solemnly declared to be free and independent. But even before that period Congress had recommended, that new governments should be framed, adequate to the exigency of the public affairs; and a Council of Safety, with other temporary bodies, actually discharged the functions of the State. See Journals of Congress 10th and 14th May, 1776. 4th of June, 1776. 16th June, 1776. 24th do. and July 14th. In consequence of the declaration of independence, however, a General Convention assembled at Philadelphia on the 15th July, 1776; and on the 28th of September following, agreed to that social compact under which the people of this State are now united. It appears that a quorum of the legislative body, created by the constitution [1 U.S. 53, 55]

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