IN THE SUPERIOR COURT
[2 N.C.] WILMINGTON MAY TERM, 1796
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Executors of
CRUDEN v. NEALE.
Plaintiff sued on a bond, and the plea, which was founded on the 101st section of the act of 1777, c. 2, stated in substance that plaintiff had removed from the State to avoid assisting In the war of the Revolution; that he had attached himself to the enemy, etc: Held, that if plaintiff was a citizen of this country, the 101st section, before referred to, is repealed as to him, by several acts of the State Legislature; and if he was not a citizen, but a British subject, then by the 4th article of the treaty of peace, he is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--------- removed 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, etc., and the plea concluded with praying judgment, whether he should be answered, etc. 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 chose to become members of the new,
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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 had not entered into any engagement to become subject to any new form the majority might think proper to adopt. That tile majority shall prevail, is a rule posterior to the formation of government, 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 nature. He is not bound by any institutions
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formed by his fellow-men without his 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 Great 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, that 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 adjuration 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 the enemies of America, other than such as are detained as 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 mixed, 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 what the law of nations was; and it was intended to operate no longer than the law of nations would have operated to the exclusion of the plaintiff from our Courts, namely, during the continuance of the war.
