Executors of Cruden v. Neale, 2 N.C. 388, 1 Hayw. 388 (1796)

May 1796 · North Carolina Superior Court

2 N.C. 388, 1 Hayw. 388

Executors of Cruden v. Neale.

Plaintiff sued on a bond, and the plea, which was founded on the lOfst section of the act of 1777., c. 2, stated in substance that Plaintiff had removed from the State to avoid assisting in the wav of the Revolution ; that he had attached himself to the enemy, &c. Held, that if Plaintiff was a citizen of this country, the 101st section, before referred to, is repealed as to him, by several acts of the State Legislature ; and if he was not a citizen, but a British subject, then by. the 4th article of the treaty of peace,, he is considered as an alien friend, and entitled to sue in our courts,

The plea in substance stated, that the Plaintiff in the-year remoyed himself from this State to avoid giving his assistance in the then war, carried on against the King of Great-Britain, and attached himself to the enemy, &c. and the plea concluded with, praying judgment, whether he should be answered, &c. To this there was a demurrer and joinder.

Counsel for the Plaintiff

It will not be denied, and is admitted by the pleadings, that the Plaintiff previous, to the Revolution resided in this country; after the establishment of the present form of government he can be considered but in one of these two lights, as one who refused to become a member of the new government, continuing his allegiance to the King of Great-Britain, or as a citizen. When a change of government takes place, from a monarchical to a republican-government, the old form is dissolved. Those who lived under it, and did not chiise to become members of the new, had a right to refuse their allegiance to- it, and to retire elsewhere. By being a part of the society subject, to the old government, they liad not entered into any engagement to become subject to any new form the majority might think proper to adopt. That the majority shall prevail, is a rule posterior to the formation of govern ment, and results from it. It is not a rule binding upon mankind in their natural state. There, every man is independent of all laws, except those prescribed by na-tuse. He is not bound by any institutions formed by his fellow-men without bis consent. The Plaintiff here is not stated by the plea ever to have become a citizen or member of North Carolina. The fact is that he never was a citizen. Had that fact been stated, we should have replied to it. As he still remained a subject of the King of Greaf-Britain, then although the intervention of war suspended his right to commence an action in our courts, that was but a temporary obstacle, ceasing with the war which caused it ; his right revived when the war ended. The clause upon which this plea is formed is, the 101st section of 1777", c. 2. “ Provided, lhat no person who hath taken, or shall take part with the enemies of America, or who hath, or shall refuse, when lawfully required thereto, to take the oath of allegiance and abjuration required by the laws of this State, or who hath or shall remove from this State, or any of the United States, to avoid giving their assistance in repelling the invasions of the common enemy, or who hath or shall reside or be under the dominion of tlie enemies of America, other than such as are detained hs prisoners of war, nor any person claiming by assignment, representation or otherwise by or under any such person, shall have or receive any benefit of this act: but all right of commencing or prosecuting any suit or suits, action or actions, real, personal or mixt, shall be and is hereby suspended, and shall remain suspended until the Legislature shall make further provision relative thereto.” This is but a declaration of the Legislature ,so far as regarded British subjects, of W'hat the law of nations was ; and it was intended to operate no longer than the law of nations would have operated to the exclusion ojf the Plaintiff from our courts, namely, during the continuance of the war. The clause says, the Plaintiff’s right shall he suspended until the Legislature shall make further provision relative thereto; and it. must he admitted there is not any express provision made by the Assembly since ; but being made with a view to the continuance of the war, and this State having afterwards made one of the United States who entered into a treaty for the termination of that war, it follows, that all the acts of our Legislature made for the purpose of distressing the enemy, or to prevent strengthening themselves, were thereby ipso facto repealed. Though die. State represented in the Assembly have not by that Assembly expressly passed an act of repeal, yet the State represented elsewhere bath agreed to and ratified a public act. which does away all the consequences arising from a state of warfare — of which the Plaintiff's disability to sue in this court, is one. Where that body, with whom is lodged roe sovereign power to make a treaty of peace, makes such treaty in a constitutional manner, it is an act of the Legislature as to the purpose of repealing all former ads of every State Legislature to the comrary. It is aii act of the people of all the States, done by those who arc constitutionally empowered t<< do it ; and all acts opposed to that state, of things, introduced by the treaty must cease, or each State may still treat as enemies those with whom ihe treaty directs a restoration of the rights of peace. Can a man be entitled to the rights of an alien friend, and yet not be allowed to sue in our courts ? Can any man who lived under the dominion of the King of Great-Britain during the time of the late, war, be entitled to sue in this court, if that clause is not repealed by the treaty ? But if this law is not repealed by a discontinuance of the war, by means of the treaty and a restoration of peace, yet certainly as to British subjects it is repealed by the fourth section of the treaty of peace — creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona file debts heretofore contracted. By this article, British creditors have a right to recover their debts, and they cannot recover them but by means of suits to be instituted in our courts. This article, with the rest of the treaty, by an express act passed in 1787, is made part of the law of tjiC land ; and if the operation of the treaty is incon-istent will) the 101st section of the court law, it follows that that section is repealed, so far as the inconsistency reaches ; and then the plea is not tenable, and ought to be overruled by the court. But suppose the Plaintiff was a citizen of this State, then how is this 101st section to be viewed, upon, a comparison with the constitution of this State then just established ? If he was a citizen, and attached himself to the enemy, and aided them in their attempts to subjugate the country, he was guilty of high treason — the consequence would he the loss of his right to institute an ac-(¡n!¡. Judgment of death, forfeiture of estate, and a disability to apply to his country for relief against the injustice of others in civil cases, will be the consequence's of the fact stated in the plea. But can such a fact be presumed ? Can if be averred against a man who has not. been convicted of it ? Can it be tried indirectly in a civil action ? These questions cannot, be answered in the affirmative. Then this plea should have stated the fact with such circumstances as were necessary to establish it. It should have set forth the record of the Plaintiff’s conviction and attainder. Where a man becomes a citizen of a free country, his right to demand justice and redress of wrongs becomes_at the same time one of his most essential privileges. He cannot enjoy safety and the protection of the laws without it. Without it be is not free, for what is freedom but security rendered by law to the individual. It is not denied but that every citizen may forfeit his right to protection by enormous transgressions against the laws of his country, where they have exacted such a forfeiture as a part of the punishment. A citizen of North-Carolina may'forfeit his right of protection by the commission of high treason, but whether be lias committed high treason or not, can no otherwise be ascertained but according to the, rule of the constitution, which declares, sec. 9, that no freeman shall be convicted of any crime, but by the unanimous verdict of a jury of good and lawful men, in open court, as heretofore used. And sec. 12, that no freeman ought to be taken, imprisoned, or deprived of his freehold, liberties or privileges, or outlawed or exiled, or in any manner destroyed or deprived of life, liberty or property, but by the law of the land, A citizen of this country before he can be subjected to the punishment of treason, or to the disabilities consequent upon it, must be convicted by a jury of bis neighbourhood, upon the previous accusation of a grand jury of his neighbours: also upon a trial before a court appointed by law, for the purpose of seeing that he has every legal advantage the law - eutitles him to. He is not to be deprived of his liberty, or of his rights essential to its enjoyment, but by the law of the land. And what is ihe law of the land ? Such acts of the Legislature only as violate none of the rules laid down in the constitution — such as allow the citizen the privileges there secured to him — acts inconsistent with the rights of free-meo as declared in the constitution, which take away their constitutional privileges, which, in short, deprive a man of his life, or of tin; means of protection by an application to the laws of his country for redress of wrongs, without» previous trial by jury-am! a conviction by them, are not laws of the land — such are acts not authorized by the constitution — they have no claim to the obedience or support of the citizen as laws — they are void. And if the section in question can be made to bear no other construction than that of taking away a citizen’s right, to sue, before trial and conviction in a constitutional way, for the offence to which such deprivation is annexed as a punishment, then 1 humbly contend, that it is void in itself, and of course this plea framed upon it of no validity to hinder the Plaintiff from maintaining his action.

E contra

it was argued that the 401st sec. of 1777, eft. 2, was intended to reach farther than the law of nations would of itself have extended — the disability to sue created by that would have ceased with the war — the Legislature intended that persons who had resided here, and been fostered and protected by the country, and who af-terwards in the time of its distress, ungratefully attach-' ed themselves to its enemy, should as they separated themselves, remain so, unless in such special instances where, at a future day, the Legislature might be induced to make a special interference. With this view, the disabilities are to continue until the Legislature shall otherwise provide, All subsequent Legislatures have been of the same opinion-none of them have ever passed any act of repeal — tills act is yet in force, unless repealed by the treaty of peace : but in truth, the treaty does not repeal but rather confirms it. The fifth article provides, that persons of other descriptions than that of British subjects, or of persons resident in districts in possession of his Majesty’s arms, who have not borne arms against the United States; which includes all such persons as have left the country and attached themselves to the enemy, shall have liberty, to go to any part of the United States and there to remain twelve months unmolested, in their endeavors to obtain the restitution of such of their estates, rights and properties, as may have been confiscated— this is all that is stipulated in their favor. They are to be received as supplicants for the restitution of their rights — 'these, rights are not to be restored but by the free consent of the Legislature. This part of the treaty admits the validity of the laws depriving them of their rights. If is con form story of the acts on that head. If they have been subjected to the di-,ability of commencing suits, this treaty stipulates no more for them, than that they shall have an opportunity of interceding for its removal. If persons of the Plaintiff’s description are entitled to recover their debts contracted bona fide, before, the end of the war, yet that is not incompatible with the plea. He may he entitled to tiie debt, and as yet have no remedy for it. It is not new in law to have a right without remedy.— The sovereignty of the country, from motives of policy and public utility, frequently deny a remedy to acknowledged rights, sometimes for a short time oniy, sometimes forever. In these instances, their right to do so, has ne~ ver been questioned. They have a right to be guided in the adoption of public measures by a regard to the public happiness, and to deny upon that ground to an indi • vidual, what it would seem just to allow him in common with other citizens, merely because it is promotive of the public advantage, to deny him a remedy in a case thus circumstanced. The sovereign power of every country is the proper judge of the cases where such remedies ought to be denied. A debt barred by the act of limitations, is an existing debt, not extinguished by length of time, and capable of acquiring a remedy upon easy terms, yet the law denies a remedy upon motives of policy. An .infant may contract a debt, and a creditor be entitled to a remedy against him — here the transaction is not void, ' ihe debt exists, and the slightest assent to the contract when, of age, revives if. In the case of outlawry, the outlaw ,ib;r any injury done to his person, is entitled to a satisfactidn, bait not to any remedy, till his outlawry be removed. "Valiere a treaty is made, between two nations against cpnfisc'á'tion of debts in the event of war, the citizens oí’thb.tfné nation have a right to their debts against the ..pitigens of the other; but the sovereign power may qleny timar a remedy, and frequently will deny it even after. tke^w.ar, until the cause be removed. Many other examples might be given. So that if it be taken, that the Planr.iff is one of those persons who is entitled to his debt under t!¡e 4th article ofthe treaty, th¡»¿ is not com h.sive to prove him entitled to come in o this court for it before a repeal of the 101st section of the court law. The Lc gislafure had the power to continue the suspension of his right even until this time, and in doing so, they may have acted upon very sufficient reasons.

Per curiam

it is not stated in the plea, nor clearly admitted at the bar, whether the Plaintiff was ever a citizen of this country, or only resided here, in the time of the formation of the new government. If he only resided here, and never became a citizen, he is to be considered as a British subject; and that perhaps may make his case very different from that of a citizen who attached himself to an enemy, and took up arms against the country.

Counsel for the Plaintiff — He never was a citizen — ■ the counsel on the other side cannot say he was — the plea does not state him to ha\ e been a citizen at the time of his departure.

Per curiam — We will take time to consider of the plea, and give judgment sometime before the end of the term. After a few days they gave judgment.

Per curiam — All persons in general, as well foreigners as citizens, may come into this court to recover rights withheld, and to obtain satisfaction for injuries done, unless where they are subject to some disability the law* imposes. Foreigners are in general entitled to sue, unless a war exists between our country and theirs. The 10.1st section-of 1777, c. 2, is certainly repealed as to all British subjects, by the 4th article of the treaty ; winch is to be regarded as law paramount, the acts of any State Legislature to the contrary, until that treaty shall become suspended by the sovereign authority entrusted with the power to suspend it. Each department " ment empowered to do a sovereign act pels fairs of the government, must in doing lish what the whole people, and every® bound by as done by competent authority pealed by 1787, c. 1, declaring this article of the law of the land. As to British subí much to be doubted, whether the mere act the war by a treaty of peace, did not. repeal That restores them witli regard to this country? condition of alien friends, and to all the rights belonging ro that character, one of which is, the right of commenc*. mg a prosecution. It is incompatible with a state of national friendship, and is a cause for war, if the citizens ()( another country are not allowed to sue for and .obtain redress of wrongs in our courts. But however, this may he, British subjects by the 4th article of the treaty, are to be entitled to recover their debts, and this they cannot do without instituting suits, guando aliquid conce.-dilur, conbeditur ut id, -sine qua non pervenitur ad illud. The Plaintiff is not stated by the plea to have been a citizen ; we cannot say he was — but say he was a citizen, the laws may suspend the right of suing for a certain time, or Until a certain period, either to all the citizens with respect to certain cases, as was done in 1783; or to a description of citizens coming under particular circumstances, as citizens for instance who had notoriously joined the enemies of the country. It would have been equally impolitic to have, suffered them to recover in the time of war, although they could not be arrested so as to be convicted of treason, as to have suffered a British subject to recover. The reason for excluding the latter, applied with equal force to the exclusion of the former. The fact of joining the enemy, upon a plea in disability, might be ascertained by a jury as well as any other fact. This would not he ascertaining a fact for the purpose of punishing the party for his treason, but for the purpose of excluding him for the present from our courts of justice. In the same manner as the fact of being an alien enemy is found, and operates when found. This clause seems to have been made with a view to the war then carrying on, to prevent, those inimical to us from getting into their possession,"any of the wraith of the country, which might enable them to fight us witii more advantage. Considering it in this light, it'would seem as if the clause itself should expire with the. war, the terminating that being a providing otherwise within the words of the act, and that termination effected by those who were vested with power to do that act of sovereignty that was absolutely binding upon every State, notwithstanding any particular act of the State Legislature to the contrary remaining unrepealed by the State Legislature. But there are sundry acts of the Legislature, which have repealed this clause with respect to the greater number of citizens who had fallen under its operation. By 1783, c. 6, all manner of treasons, misprisions of treason, felony or misdemeanor, committed since the 4th July, 1776, are pardoned and put in total oblivion : but that fití is not to pardon or discharge, or give any benefit to persons who have taken commissions, or have been denominated officers, or acted as such, or to such as have attached themselves to the British and continued without the limits of the State, ami returned within twelve months before the passing the act: and nothing in that act is to he so construed as to bar any citizen from his civil action for the recovery of debt or damages. By this act all the citizens of the State are pardoned all treasons and misdemeanors, except those who have borne offices in the enemy’s service, or having been in their service as private men, had not returned within 12 mouths before the passing the act. Now if a disability to sue is inflicted as a punishment for attaching himself to the enemy, then the pardoning of that must of course take away the disability. Quando subtollitur causa, subtollitur etiam effect us. Then the 101st section is repealed as to all citizens hut those of the two descriptions mentioned in the act. By 1784, c. 20, all persons who attached themselves to the enemy, or aided them in the prosecution of the war, are disabled to hold sundry offices specified in the act $ and there is a proviso annexed, that that act shall not he so construed as to permit the return to the State of any person who acted as an officer after being a resident of the Slate, or who had not submitted to the laws of the State before the ratification of the definitive treaty. The Legislature supposed, and therefore probably intended that the general implication arising from this act would be, that all persons therein described, would be entitled to all the rights of citizens except those denied them in the act, and of course the right to return to tins State, unless hindered by an express clause, which they have made as to officers only. If such general implication was intended, and is restrained only as to officers, it follows that all other persons are restored to all the rights of citizenship, except the right of boingelectcd to certain offices; and then the 101st section of 1777, c. 2, is repealed as to all but those wlm had borne commissions in the enemy’s service, and particularly as to one description of persons who were continued subject to it by the act of 1783, namely, those, who had attached themselves to the enemy and remained without the limits of the State, and had ,not returned twelve months before the 18th of April, 1783.— To the same effect with the act. of 1784, is the act of 1785, 11. Supposing the Plaintiff to have been a citizen wlio attached himself to the enemy, without having borne a commission in their service, or haying borne a commission to have submitted»to the laws of the. Sta-e before the ratification of the definitive treaty, he is entitled upon the construction of all these acts, now to institute his suit, and this plea does not. state, either that he bore a commission, or that he did not, submit to the laws of the State tyofore the ratification of (he definitive treaty. It is utir necessary to consider how far the section in question is repealed by the termination of the war, independent of any particular acts of the Legislature — for if (he Plaintiff was a citizen, then make the worst of the case, and by the acts mentioned, the 101st section is repealed as to him — it not being pretended that he is to be distinguished by either of the disqualifying characters before mentioned. If he was a British subject., then his right to sue for antecedent debts i> revived by the 4th article of the treaty, and this is such a debt. Let the plea in abatement be overruled, and the Defendant answer over.

There were several cases depending’ in this court upon the same pleas, and upon this opinion of the court being given, the picas were withdrawn and the Defendants pleaded in chief.

At Hillsborough, October, 1796, the three first causes on the argument docket, were standing upon pleas in abatement, and demurrer thereto for the same cause, and the pleas were overruled per Wumams and Haywood, without argument, upon the authority of the foregoing decision. Also at Fayetteville, 1796, a client of Mr. Williams, who had joined the enemy in the time of the late war, and who had given notice of moving for a writ of error, was suspended by a plea in disability. — that plea was now overruled and he was set at liberty to proceed.