2 Mass. 236

November, 1806

A person who left this country after the commencement of the revolutionary war, went to, and resided in, the British territories for several years, and returned to the United States before the treaty of peace, is a citizen, and not an alien.

The Absentee Act of April 30, 1779, operates no disqualification upon a person who was not prosecuted and convicted under it.

This was a review of an action of the case brought by Asa Kilham against the plaintiffs in review, who, on the 9th day of May, A. D. 1803, presided as selectmen at a town meeting held for the choice of representatives, and refused to receive the vote of the defendant in review on the ground of his being an alien.

The cause was tried upon the review at the last April term before Parker, J., and a verdict given for Kilham, the plaintiff in the original action. After the verdict, the plaintiffs in review moved the Court for a new trial, for the misdirection of the judge in matters of law.

The facts proved at the trial were -- That K. was born in Wenham, in this county, May 28, A. D. 1754. At fourteen years of age he was placed as an apprentice with a carpenter in Salem. A short time before the commencement of hostilities, (April 19, 1775,) one W. Lilly, a native of Great Britain, then living in Salem, with his family, proposed to K. to hire him to go with him to Newfoundland, to work at his trade there for six months in that year. Soon after the 19th April, 1775, K., not yet being of age, but having obtained his master's consent, went with Lilly and his family, and among them a young woman, -- whom Kilham married in January, 1779, -- to Newfoundland, then, and ever since, under the jurisdiction of the king of Great Britain, without the leave or permission of the legislative or executive authority of this or any other of the then United Colonies. At that place he continued till August, 1779, laboring at his trade, not only on houses and buildings, but on British ships of war and prize vessels, and on barracks for the use of British soldiers. During this time he was in the family and service of Lilly, and there was no evidence in the trial of any force or compulsion. He frequently expressed to Lilly his attachment to his native country, and his wishes and determination to return to it when he should have an opportunity. Accordingly, in August, 1779, he embarked with his wife, and some property, in a British armed ship, for St. Eustatia, in order to obtain a passage from thence to Massachusetts. On his passage he refused

Page 237

to fight against Americans; and the officers of the ship, upon discovering his intentions of returning to his country, retained the property he had on board. Early in 1780, he arrived at Salem, where he has since lived, and usually wrought at his trade, and in the year 1786 was a non-commissioned officer in the militia there. For upwards of twenty years he had voted at town meetings, and his name was borne on the list of qualified voters at the time his vote was refused as stated in the declaration. There was no evidence that his right to vote had ever before been questioned on the ground of his being an alien; nor did it appear that he left any property or domicile in any of the colonies, at the time of his going from Salem to Newfoundland. After his return, he frequently related to his neighbors in Salem the circumstances of his being in Newfoundland, and the manner of his employment there, and his return, from which relations only the evidence to those points was obtained. There was no evidence of malice in the selectmen, other than what the facts recited furnished.

Upon these facts, which appeared by the judge's report, a new trial was moved for, as aforesaid, for the following reasons:--

1st. Because the judge stated to the jury that the main question before them was a question of law, which properly belonged to the Court, and not to the jury, to decide; and that, in his opinion, Kilham, on all the facts aforesaid, by the law of the land, was not an alien, but a citizen of the United States, and had a right to vote at the time when he offered his vote.

2d. The judge stated to the jury that an act passed April 13, 1779, by the legislature of the then state of Massachusetts Bay, entitled "An Act confiscating the estates of certain persons commonly called absentees," ought not to avail against the said Kilham, and that he was not within the same, for this reason, (among others,) to wit, because it was not proved in the said trial that he was, at any time, prosecuted and convicted, upon the said act, for any crime or offence by him committed against the same.

Page 238

And now Story, in support of the motion, contended that Kilham was an alien at the time his vote was refused, and proposed to consider his position,

1. At common law.

2. Under the Declaration of Independence, and the statutes of this government; and

3. Under the treaty of peace between the United States and Great Britain.

By the rules of the common law, every person born within a realm owes allegiance to the sovereign thereof, and this allegiance cannot be forfeited, cancelled, or changed, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. [Note 1] Allegiance is due to the sovereign, not in his political capacity only, but to his natural person. It is due to him not merely by virtue of territorial sovereignty, for it remains though the empire be dismembered. And therefore, where two kingdoms are united under one sovereign, and afterwards separated, all persons born therein during the union owe allegiance to their first sovereign, even after the separation, and cannot by such matters, ex post facto, become aliens. This doctrine is fully stated and approved in Calvin's case, [Note 2] and in Lord Bacon's argument respecting the postnati. [Note 3] And the cases of the inhabitants of Normandy, Guscoigne; Guienne, and Anjou, are there cited to show that, though they became de facto subjects of the king of France, yet they owed allegiance to the king of England, and were inheritable of lands in the latter place, until the statute De Prerogativa Regis [Note 4] took away the right. [Note 5] According to these principles Kilham, having been born within the allegiance of the king of Great Britain, was a British subject, and by the common law did not change his allegiance in consequence of the territory of his birth being dismembered from that empire. If this be true, then the onus probandi lies on him to show that he has since become a citizen of this commonwealth. As it is not pretended

Page 239

that he has been naturalized, the only means by which his citizenship could be effected must have been by the operation of the Declaration of Independence, or of the treaty of peace.

In consequence of the Declaration of Independence, the old government was dissolved, and the majority had a right to form a new one; but the minority had undoubtedly a right to remove. This seems consonant to the rules of reason, and the principles of natural law. [Note 6] All persons, therefore, who were then within the United States, and were parties to that declaration, must be considered as agreeing to the new political compact, and by virtue of it became citizens of the established government. As to those who were absent, animo revertendi, to entitle them to the same privilege, it was necessary for them to return within a reasonable time, and by some overt act assent to the compact.

This, it is conceived, is a true view of the operation of the Declaration of Independence, and it agrees with the apparent intent of the legislature in the various statutes made relative to this subject. Allegiance was due to the new government from those only who were parties to it or who derived protection from it. The statute of treasons passed in 1777, [Note 7] in conformity thereto enacts "that all persons abiding in this state, and deriving protection from the laws of the same, owe allegiance to this state, and are members thereof; and that all persons passing through, visiting, or making a temporary stay in, this state, being entitled to, and actually receiving the protection of the laws during the time of such visitation or temporary stay, owe, during the same time, allegiance to this state." And it then provides "that all persons, members of or owing allegiance to this state, as before described, who shall levy war, &c.," shall suffer death. This statute does not seem intended to include in its provisions any persons who had left the country previous to the existence of the new government. The subsequent statutes made for the confiscation of the estates of absentees (which we shall hereafter refer to) do not contemplate that persons who had gone away and joined the enemy had committed treason; but that their conduct

Page 240

amounted to an abandonment of their property, which therefore reverted as an escheat to the commonwealth.

Consonant with this view of the subject, K. must be considered as having abandoned his native state. His departure was on the very eve of a war; and his subsequent conduct in assisting the British in their hostilities, clearly shows that he had not animum revertendi. And admitting that he had, it was necessary that his intention should have been executed within a reasonable time, which was certainly not done. His return, after an absence of five years, cannot avail him, because it was in direct violation of law. The statute passed in 1778 [Note 8] expressly prohibits the return into the state of persons in his situation; and it is presumed that no man can avail himself of his breach of law to establish a right. The consequence seems to be, that K. must be an alien.

But if there be a doubt of this construction, it seems completely relieved by the positive provisions of the statute of April 30, 1779, respecting absentees, [Note 9] which in the first section enacts that every inhabitant of this or any other of the late colonies or then states who, since the 19th of April, 1775, had withdrawn, without the permission of the legislative or executive authority of this, or some other of the United States, into parts or places under the acknowledged authority and dominion of the king of Great Britain, and had not before the passing of the act returned into some one of the United States, and been received as a subject thereof, and (if required) taken an oath of allegiance to such states, shall be held, taken, deemed, and adjudged, to have freely renounced all civil and political relation to each and every of the said United States, and be considered as an alien. The second section declares the property of such persons to escheat and enure to the government; and the third section provides process in order to recover the property, in the nature of an inquest of office. This statute was made at a time when the legislature were paramount, and possessed powers of the most transcendent nature. It is a legislative declaration of alienage in all those who are within its provisions, without trial or appeal.

Page 241

It grew out of the spirit and exigencies of the times; and the occasion is to be found by examining the history of the nation. The construction of it should therefore be liberal, to meet the obvious intention of its makers. The application of the statute to Kilham's case is so clear that words cannot make it more apparent. The sole inquiry here must be whether a conviction in a court of law was necessary in order to fix the alienage, or whether the act did not of itself operate the disability without any process whatsoever. We contend that the latter is the true construction from the apparent intention of the legislature. It cannot be denied that such an act might have been made. Every law ought to be so construed, as that its provisions may have effect. In the present case, the statute has created no crime, and provided no process or punishment against the person. No indictment could by law be brought to convict any person of abandoning the state, and no judgment could be had that such person was an alien. The intention of the legislature certainly was to deprive all those who had abandoned the government and its interests of all civil rights and privileges. Yet this intention could never prevail, unless our construction be the true one; for no conviction could be had, and consequently no disability of alienage otherwise incurred. The law therefore would be perfectly nugatory.

Other statutes pursuing the same object confirm this construction, and consider all such persons as civilly dead, and direct that the widow shall be allowed her dower, and debts be paid by the committee appointed to administer the estate. [Note 10] And surely no conviction could be had after a person was civiliter mortuus. No statute can be found inflicting any penalty upon the person in this case. And if absentees were personally amenable, it is a little extraordinary that the zeal of the times should not have meted an adequate punishment. It may be said that a conviction might at least be had in those cases where an inquest was brought under the statute, against real estate.

Page 242

But certainly it is not so. The inquest was a process in rem only, and not in personam. The judgment decided the title to the land, and vested it in the state, but went no further. Either the statute has no operation in this respect, or it has fixed the disability, and admitted it to be shown and pleaded in the present form.

Nor is this a new principle. Instances are not unfrequent of attainders, convictions, and disabilities, made by the legislature in critical times. The statute against the conspirators, passed the same day with this under consideration, was of this nature. So by the British statute de prerogativa regis, (17 Ed. 2,) the inhabitants of Normandy were declared aliens, and not capable of inheriting lands in England. But it never was conceived that, to support a plea of alienage pleaded to a real action brought by a Norman, it was necessary to show a judgment in a criminal suit finding that fact. The reason must be, that it was not part of the punishment inflicted on conviction of a crime; but a civil disability established by the legislature ipso facto. The plea of alienage, in such a case, would be general, and the particular facts which constituted it would be matter of evidence. The true distinction between laws where personal disabilities require conviction before they attach, and where they do not, is this: when the disability is a personal forfeiture for crimes, there before judgment it cannot be pleaded or shown. But it is otherwise, where the disability is created by law independent of the commission of, or judgment for, an offence. Disabilities of this latter kind may always be shown or pleaded, to rebut a claim. The plea of profession assimilates to the present case. It alleges that the party is professed, [Note 11] and the facts which constitute profession are matters of evidence. But it could never be contended that a conviction was necessary before the plea could avail; for, though the law declares a person professed civiliter mortuus, profession is not an offence, nor the deprivation of civil existence a punishment inflicted upon conviction thereof. In the same manner may all other civil disabilities of this class be shown, such as villenage, nonage,

Page 243

bastardy, &c., whether the same be created by the common law or by statute; and any other construction would virtually annul such law or statute.

The result of these reasonings is, that Kilham, being born a British subject, owed perpetual allegiance to the British crown, and the proof lies on him to show himself a citizen of this commonwealth that being absent at the time of the Declaration of Independence, and not having returned within a reasonable time, nor until his return was a violation of law, he still continues a British subject, and an alien to this commonwealth; that the statute of April 30, 1779, is a declarative act to the same effect, fixing the alienage unchangeably; and that no conviction under that statute could be had, or was necessary, in order to entitle this disability to be shown in civil suits.

If these conclusions are correct, the treaty of peace cannot affect the case. K., being at that time an alien, could not be a party to it, on the side of the United States. The only article which bears upon this subject is the sixth, which provides that no future confiscations be made, nor any prosecutions commenced against any person for the part he may have taken in the war; that no person shall suffer any future loss or damage on that account, either in his person, liberty, or property; and that those in confinement on such charges shall be set at liberty, and the prosecution so commenced be discontinued. It is obvious that this article is calculated only to prevent future confiscations and prosecutions, and not to annul those already definitively adjudged. It could neither create nor take away citizenship. It prevented future disabilities, but did not cancel those already established.

But, at all events, this action could not be maintained against the original defendants without proving that they acted corruptly and maliciously; both which allegations are negatived by the state of facts. A mere error in judgment, in a case of this nature, however inconvenient or painful to a party, is not actionable. If it were otherwise, no man would ever accept the office of selectman. If a public officer exercise his discretion

Page 244

fairly, and without malice, he ought to be protected, and the law has wisely so adjudged. [Note 12]

Putnam, on the other side. We understand the direction of the judge who tried the cause to have been that, if the facts stated in the report were satisfactorily proved to the jury, the law resulting from them was in favor of the plaintiff's right to vote as a native citizen of this commonwealth, and that the statute of 1779 cannot now be applied to disfranchise him, as no prosecution was ever had against him for any offences therein described. It is our duty to show that this direction was correct, and that, therefore, a new trial ought not to be granted.

We contend that natural allegiance is commensurate with the government affording protection; that it is due to the government of the country of our birth; that, before the separation of the colonies from Great Britain, it was due to the king of the people of both countries; and that, after the political bands of union were dissolved, the people of the United States assumed the sovereignty of these states, and claimed and became entitled to the allegiance of all their native inhabitants, excepting only those who elected to adhere to the king.

The treaty of peace was a surrender on the part of Great Britain to the people of the United States, of all claim to their allegiance; and the people of the United States, who were parties to that instrument, did thereby virtually renounce all claim to the protection of the king, and acknowledged the sovereignty of the people. These principles we apprehend to have been fully considered, upon a state of facts, in the late case of Gardner against the same defendants. (Here Putnam briefly recapitulated the facts in the case referred to, which are stated more at length in the case in the note.) [Note a]

Page 245

In that case, it was argued for the defendants, that G. having voluntarily withdrawn from the state, without permission of the government, into a place then under the acknowledged dominion of the king, by force of the statute of 1779, (called the Absentee Act,) he ought to be considered as an alien. It was

Page 246

replied that G. had never intended to abandon his country; that he voluntarily returned, and was cordially received, during the war; that he was never prosecuted under the Absentee Act; and was a member of the United States at the execution of the treaty of 1783. The Court determined that he was a citizen.

Page 247

Putnam then briefly stated the facts in the present action, and proceeded. We consider Gardner's case decisive of the present action. The only important distinction between them is, that G. was a merchant doing business on his own account. when he went to Newfoundland; but K. was then an infant under

Page 248

twenty-one years of age, the age of legal discretion, and no proceedings were ever had against him as an absentee.

There is really no pretence for the argument, upon the facts reported. If K. had been prosecuted under that revolutionary act, he could have pleaded not guilty, and would have proved

Page 249

to the jury that he never had, in the sense of those acts, left his native country, and joined the enemies thereof, or in any manner brought himself within the intent of those statutes; he could not, at the time he embarked, be considered, by reason of his infancy, capable of making the election. He

Page 250

would have proved, further, that his absence had been temporary, animo revertendi; that his allegiance due to the government of his native land was not changed by climate or soil; that it was lawful for him at that time to go to any part of the King's dominions; that he evinced his original intention by

Page 251

a voluntary return during the war, and indeed, before the formation of the constitution of this commonwealth; and, so far as his ability extended, he contributed to the common cause against the enemy. His countrymen were perfectly aware of all this, and received him with open arms; their conduct was the

Page 252

strongest evidence in his favor that he had not, within the meaning of the statute, "sought the protection of the enemy," or "joined the enemy," or "adhered to the king;" that he had not, in a political sense, withdrawn from his native land.

But the treaty of 1783 has, in the sixth article, provided

Page 253

expressly, that there should not thereafter be any prosecution against any persons for any part they had taken in the war; and that no person should, on that account, suffer any future loss or damage in person, liberty, or property. This fact alone was, in Gardner's case, considered to be conclusive, and so it must in

Page 254

this case. Kilham was on the part of the United States in that treaty, and, as before observed, virtually renounced all right to the king's protection, and the king absolved him from all claim to allegiance. He never has been prosecuted for the part he took in the war, and no legal inquiry can now be had, although

Page 255

he would be very ready to meet it. It has been reserved to the defendants to have discovered and determined, above twenty years after the supposed fact, that the plaintiff can be disfranchised against his consent, and without accusation -- conviction on trial for any offence.

Dane, in reply, said that, considering the late hour of the Court, he did not mean to argue the points so fully considered and supported by the counsel with him, (Story,) but only to select a few material points, and apply his observations to them.

Four questions were made by him, viz.: 1. Whether, on the facts stated in the exceptions, the main question was a question of law, or of intention, and so of fact; 2. If the judge's opinion was correct, that Kilham, on these facts, was a citizen and not an alien; 3. If his case was not within the act of April 30, 1779; and, 4. Whether, in order to plead that act against him, it was necessary to show he had been prosecuted and convicted of some offence against it.

He urged that, so far as K.'s case was at common law, the principal question was a question of intention, so of fact, which should have been left to the jury under different directions -- if he went away and was absent cum animo revertendi; and that, as to the evidence of such intention, his case was very different from that of Gardner.

Page 256

On the 2d point, that K. was an alien when he offered his vote, it was said -- That he was born a British subject, and was such when he removed to Newfoundland, owing allegiance to the king of Great Britain: which, on the principles of the common law, he never could throw off without the consent of the government to which it was due, (1 Bl. Com. 369. -- 1 Hale, P. C. 68;) that this being the case, he never could become an American citizen, but in virtue of independence on the 4th of July, 1776, or by naturalization; that on that day the United States became completely and absolutely sovereign and independent, when the civil war with Great Britain ended, and a public war followed, and was precisely on the principles of every public war between any sovereign, independent nations; that this separation was grounded on the principles of both English and American law, because the king, by his despotic attempts to subvert the colonial governments, virtually abdicated or renounced his power in the colonies, and, in the language of the Declaration of Independence, he "abdicated government here," and for the reasons stated in that declaration. The royal authority being thus at an end in the thirteen colonies, and their inhabitants being completely absolved from their British allegiance, they had a right to form, and on the 4th of July, 1776, did form themselves and territories into sovereign, independent states, the members of which then were of two descriptions; 1, persons abiding in them, having their domicile here, and not opposing their independence; 2, (and more to the present point,) persons born in them, but who, at the birth of the American nation, were in foreign countries, and who were of two classes -- 1st, those in countries at peace with the United States, on their ordinary business, and for temporary purposes, cum animo revertendi; in their favor there was a clear legal presumption, because absent on their lawful business, and in neutral places; 2d, those who, after the war commenced, voluntarily withdrew from the colonies into the British enemy's territories, and there remained on and after the 4th July, 1776. Against these the clear legal presumption was, that they intended to continue British subjects; because, when the two countries actually separated, they were actually and voluntarily on

Page 257

the king's side, overtly preserving their allegiance to him on the principles of the common law of both countries. This was K.'s case; for he, after Lexington battle, when the war was commenced, voluntarily withdrew from the colonies, without leave, into the king's dominions, then an enemy, and there had his home above four years, and there voluntarily labored on British armed vessels and barracks, and took a part in the war. And further, it does not appear that, when he went away, he left any property whatever, or any domicile in the colonies; nor that he then, or whilst he was at Newfoundland, mentioned to any person whatever his intentions ever to return to them, except to Wm. Lilly, an Englishman and an enemy; nor that he ever mentioned to him such intentions until years after independence was declared, and the two countries were separated; allegiance to each was fixed -- and, as to persons then living, unalterably, but by naturalization. The idea suggested by K.'s counsel, that allegiance was ambulatory during the war can have no foundation in law. Though it is proper to go thus far in order to see that the main question in this case, on common-law ground, was a question of intention, and so a question of fact to be left to the jury, and not a question of law to be decided by the Court, -- yet this question of fact is now no otherwise before the Court than as it respects a new trial, and the present motion to send the cause to the jury to be decided by them legally instructed. Further -- such clearly was the main question; for it will be agreed that, if K withdrew and was absent above four years, as stated, intending to continue his old allegiance, and to remain a British subject, he did not become an American citizen, though after that he altered his mind. On the other hand, at common law, if he went to Newfoundland, and remained there on business, cum animo revertendi, and proved this in due time, and by proper overt acts, he became such a citizen at the establishment of American independence.

As to the 3d question -- Is K.'s case within the Absentee Act of April 30, 1779? -- it clearly appears to be within the words as well as the spirit of it --as appears by comparing the facts

Page 258

stated in the report with that act. Nor does this seem to be disputed; but then, on the 4th question, it is said by his counsel, this act cannot avail against him, because he was not prosecuted and convicted of any offence against it. As much stress has been laid on this circumstance, and no doubt it is a question of law, it deserves more consideration.

When the legislature passed this act, it was not limited by any constitution; hence the act had all the force and effect the legislature meant it should have. The legislature viewed the provincial government as entirely at an end, on the grounds above stated; and that the people of Massachusetts had, after the 4th of July, '76, a right to form a new government; in which change each man had a natural or legal right to become a member of the new one, or to remove to another country, according to all modern writers on the subject. But though this was the legal right, a person acted a cowardly and ungrateful part to his native country to desert it in times of danger, and withdraw his services from it when it wanted them, and so far offended. Further, that a native of the colonies, by voluntarily going over to the enemy in a time of war without leave, and by fixing himself in their territories, freely renounced his civil and political relations to the colonies, and by overt acts evidently continued his old allegiance; and when so situated he would not become an American citizen, a member of the new nation; but necessarily remained an alien to it, and in his former allegiance and obedience; and therefore his property, in the country he deserted, escheated, and his privileges there ceased, as in the case of any alien; and this on the ground of his electing, in a revolution, and at the time of the separation, to be an actor among the enemies of the new government, and of his own choice then to place himself on enemy's ground; -- evidence of the facts and intentions so clear, that no late repentance, or change of intention, can well avail to the contrary.

These considerations induced the legislature to recite and declare, in the act, that certain absentees had freely withdrawn their services from their native country in times of danger, and had renounced their civil and political relations to it; and

Page 259

therefore were justly deemed and taken to be aliens. Nearly in the same words, the conspirators the same day were declared to be aliens; but this act provided for no sort of punishment of the persons of these absentees; but evidently viewed them as withdrawing in a base manner from their native place, surrounded with perils, in times of a transition from one government to another; because, having the strict legal rights of all minorities, in such cases they could not be legally punished for removing, and refusing their services in the establishment of a new government and nation. Hence, if they returned to the colonies, another act, passed in 1778, only provided for sending them back to British places, but not for inflicting any punishment on them, or for any judicial process against them. As to their property, this Absentee Act declared it was escheated to the government, and provided a mere inquest of office against their real estates in the usual form in all cases of aliens -- a mere process in rem, and not in personam; and this act allowed the wife her dower, and the creditors their debts, out of the absentee's estate, in the same manner as if he had been dead. As there was only process against his estate, when he left none, no process was possible; then, to require now that there should have been a conviction to bring him within the act is, to every intent, to make it a nullity as to all the absentees who left no estates, in which class was K. No one has ever attempted to point out any process that could have been had against him, to have brought him within the act. In Gardner's case, it is not recollected that the counsel, on either side, though the act inoperative without such conviction.

There is a strong distinction, in all good laws, between punishing a man for an offence, as by fine, imprisonment, &c., when he is defendant, and merely showing his disability and resisting his claim to property or to privileges, when he himself is plaintiff, or claimant. In the former case he has all the rights of defence; in the latter he asserts his claim, and by so doing puts his own right in issue, and all the rights of defence are against him, and with the other party. If one sue to recover a freehold, the tenant, in every case, has his plea of alienage against the plaintiff, if an alien in fact, and in no book is it to be found that the tenant,

Page 260

to use this plea, must first show the plaintiff convicted of the facts making him an alien. In this case K. is plaintiff; he claimed a vote, and must prove his right to it; the selectmen are defendants, and only traverse the right he claims; they do not attempt to alienize him; for, as the case appears, they have not to admit he was once a citizen and entitled to what he claims, and has ceased to be so; but they properly deny he ever was a citizen and so entitled; and as it appears he was once a British subject, he has the onus probandi to show he ceased to be one, and became an American citizen. This case, therefore, does not go the length of the old case of the person civiliter mortuus; he was once in society, and entitled to what he claimed, and lost his right only by becoming a monk, &c.: when he sued he claimed his former rights, and it became incumbent on the defendants to prove the plaintiff had become civiliter mortuus, and had lost his former rights.

There is also a clear distinction between good laws proper in times of peace and tranquillity, and laws proper in a revolution: the main object of the former is to secure individual rights; of the latter, to secure the public, or majority, against the attacks of strong minorities, which in every revolution have conceived themselves justified in fighting against its friends and supporters, and for the former government. The acts of 1779 were a part of a revolutionary system, and can never be properly construed on principles totally inapplicable to such a system.

The counsel of K. has said, the adoption of our state constitution, after he returned, has affected his case; -- not, in the least degree, to the purpose of making a citizen of an alien. When the people adopted that constitution, they could never intend to alter the rights of any man, as to his freehold, vote, alienage, or citizenship, but to leave these things to their proper course in the courts of law, or the laws of the land. In adopting their constitution, their great object was, to recognize certain fundamental rights, to provide for elections, and for wisely exercising the several powers of government. No part of the constitution can possibly be construed to have made a citizen of an alien -- or, which must follow the principle, an alien of a citizen -- or to vest in an alien the rights of a citizen.

Page 261

Again, the counsel of K. has contended, that the treaty of peace of September 3, 1783, made him a citizen, if not one before. This was a mere treaty of peace between two sovereign, independent nations, and its great object was to put those before at war into a state of peace. It is inconceivable how this treaty could naturalize an alien. Immediately preceding the treaty, K. was a citizen or an alien; if the former, it had no effect on his case; if the latter, if an alien, the treaty, to have the effect contended for, made him of such alien, a citizen, to all intents and purposes. This might be true if the treaty itself created American independence, allegiance, and citizenship; for then, as once held in England, the Americans were all British subjects and rebels till the treaty of peace absolved them from the crown. -- 3 Term R. 726 to 735. -- But this notion is against the treaty itself, and against first principles in America; for it recognizes the United States were sovereign and independent before the treaty; and the king treated with them as such, and the Common Pleas and Chancery in England held them independent and sovereign after the 4th of July, '76. -- 1 H. Bl. 129 to 155. -- Then this treaty had precisely the effect that every treaty of peace between sovereign, independent nations has had, to change war into peace, but never to alter individuals' rights, titles, or capacities, which invariably rest on the acts and laws of their own nation. It is unprecedented to hold that such a treaty of peace can change such rights, titles, or capacities. If, in a war between England and France, for instance, an Englishman moves into France, and makes his home there, and a treaty of peace is made, no lawyer ever conceived that such a treaty changed his allegiance, and made a French of this English subject. So, had K., before the treaty, sued to recover a freehold estate, and the tenant had pleaded that K. was an alien, and this plea had been good before the treaty, the operation of it now urged must have made it bad after. The 6th article mentioned evidently means only that there shall be no future prosecutions, and no future confiscations for the part any one took in the war, -- that is, that punishments and confiscations should stop where the treaty found them. But it never intended to give new rights to any man, as it did in an eminent degree, if of aliens it made citizens, and gave them all the capacities and privileges

Page 262

of such on either side. If there was a principle in the treaty to make citizens in some cases, it must necessarily have made aliens in others; and all this by an imperceptible implication, for there is not a word in the treaty to this purpose.

(See, also, the note in 1 East, 563, Judge Wilson's opinion.)

PARKER, J. The grounds of the motion for a new trial in this case are contained in the exceptions which we have before us. (The judge here stated the substance of them from the papers.) The arguments at the trial, on the part of the defendants, were much the same as those which have been now urged; and though it is true that a judge at nisi prius is often pressed by circumstances to make a hasty decision, and I have therefore no predilection for such decisions, yet I cannot say that my opinion is altered by the arguments I have now heard. The counsel for the defendants have certainly misapprehended the direction given to the jury at the trial. It cannot be supposed to have been the judge's intention to tell the jury that they were not to attend to, and weigh, the evidence themselves. The facts were found; they were the same as stated in the exceptions, and there was no counter-evidence. I am still of opinion that, after the facts were thus ascertained, the main question in the case was a question of law. The jury were directed to declare whether the facts alleged were proved, and that if they were proved, a question of law would then remain. The exceptions are, perhaps, not so accurately expressed in this respect as they might have been.

The first question, therefore, which is now submitted to us, I consider to be this, -- whether the direction of the judge upon this point, at the trial, was right or not; and to determine this, we must attend to the facts in the case.

It appears that Kilham was born in this county, and that soon after the battle of Lexington he took passage for Newfoundland, in a vessel confessedly belonging to an Englishman, in company with a young woman, to whom he was afterwards married. From his station in life, it cannot be presumed that he considered with much attention the consequences of the state of affairs at that time. He knew, as a simple matter of

Page 263

fact, that the battle of Lexington had taken place, and he probably knew other important events of the day; but he could not have taken into view the consequences which were to result from them. At Newfoundland, it seems, he was employed in working upon vessels, and in some instances upon British armed vessels. While there, he often expressed to Lilly, the person with whom he had contracted to work, his intention and determination to return to the United States. At the time when his contract, which was for six months, had expired, it is a public fact that all communication between the British territories and the United States had ceased, so that he could find no safe direct conveyance to his native country; but in order to get back again, he was obliged to go to St. Eustatia, and from thence procure a passage for this country; and we are to presume that he took the earliest opportunity to do this. It appears also that, while on board British vessels, he refused to fight against the Americans, and that the British, in consequence of his partiality for his countrymen, sequestered his property. It appears further that, when he returned to Salem, which was in 1780, he was received by his fellow-townsmen, and no notice was taken of his conduct, as betraying any hostility to his native country. He was made an officer of the militia, and for above twenty years exercised his right of voting, and enjoyed other rights of citizenship.

On these facts, then, the question being whether he is to be considered as an alien, I must say that he is not; that he did not lose his rights as a citizen of the United States. His absence from his country was temporary, and was for the purpose of getting a livelihood. These facts being found by the jury, I must still remain of the opinion that the question arising from them was a question of law.

The second exception to the judge's direction is because he directed the jury that K. did not come within the act of 1779, there having been no conviction pursuant to that law. The opinion given was, it is true, a sudden one; but upon greater deliberation, I do not think it was a wrong one. The act of 1779, according to the construction of the defendants' counsel,

Page 264

would operate to disfranchise the plaintiff, to make him an alien; but such acts, in my opinion, cannot operate ipso facto against any persons except those who are expressly named in them, and whose particular cases may therefore be presumed to have undergone an examination by the legislature. Persons who are not so named, who are in the situation of the plaintiff, have a right to claim a trial and hearing, before the act shall affect them. The act itself, indeed, points out no kind of trial in respect to the persons, but only the property, of those who are to be the subjects of its provisions; and although it does not appear, by the judge's report, that K. had any property upon which process could have been founded under the act, yet it does not by any means follow that his political rights were extinguished. These were of vastly more importance than his property; and it cannot be presumed that the legislature intended to deprive him of them without a hearing, they not having expressly declared such intention in the act itself.

But what is the consequence of K.'s having no property? The only consequence is, not that he could not have been convicted under that law, but that there is nothing in his case upon which this part of the act could operate. I must therefore remain of the opinion that, as the act of 1779 does not name Kilham, and as his case has therefore not had even the sort of trial, or previous examination by the legislature, which we may presume the cases of those named in the Conspirators' Act have had, -- and as it does not appear that he has had any other trial or hearing, -- the act does not of itself make him an alien. I therefore think a new trial ought not to be granted.

SEWALL, J. The direction of the judge is excepted to on two grounds. (His honor here stated them from the papers.)

As to the first point, I think the judge was right in assuming it as matter of law arising upon the facts submitted to the jury: the only question, then, is, whether he gave a correct opinion upon the facts.

It is said by the counsel for the defendants that Kilham is an alien by birth. This point was fully examined in the case of Henry Gardner against the same defendants. The doctrine of

Page 265

the common law is, that every man born within its jurisdiction is a subject of the sovereign of the country where he is born; and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance was born. The king of Great Britain was the sovereign of this country until the commencement of the revolution; but immediately upon the separation of the two countries, the revolutionary government established over this territory claimed the allegiance of Kilham. The act of 1779, now cited against him, claims as subjects all those who are made liable to the penalties therein provided. They are called members of the state, and are declared to have incurred certain disabilities and forfeitures by actions done contrary to their duties as members of the state. I think, therefore, under both views of the case, -- by the common law, and by the principles assumed in the statute against absentees, -- it must be considered that K.'s natural allegiance, and his reciprocal rights of protection and citizenship, remained with the sovereignty of his native country, not affected by the change in the person of the sovereign, unless he incurred an exclusion or disability by some positive act of the sovereign to whom he became subject by the revolution. Nor did the Declaration of Independence exclude him from the rights of citizenship. That declaration could not take away any existing rights, and it does not pronounce who were citizens and who were not. If K. was at that time a member of either of the United States, he was virtually a party to that instrument.

It is said that the statute of treasons excludes him from the rights of citizenship; but I cannot discern the construction by which that statute is made applicable to this case. That statute declares that persons abiding within this state owe allegiance to it, and are members thereof. Natural allegiance from birth or adoption is not distinctly mentioned, and if recognized by the statute, is included with the allegiance claimed upon established residence and domiciliary protection. This statute appears to me to express, though I cannot say that it has ever

Page 266

been understood to intend, that persons permanently resident within this state become members of the state, that is, citizens. If such residents are also natives of the state, that circumstance will not, of itself, exclude them from the character of members or citizens; and for my part I see nothing in the statute which operates to the exclusion of Kilham.

The second exception to the direction of the judge is, because he instructed the jury that a conviction under the statute of 1779, against absentees, was requisite to bring K. within the intent and operation of that act. I have already observed that the act itself is founded on the supposition of criminality in those who are made liable to the penalties and disabilities provided thereby. A mode of trial is instituted, to ascertain the guilt of persons accused of the offences described. These trials, in their form and purpose, are more especially directed to those case where a forfeiture of some real or personal estate had been incurred; and if K. had no property in this country, and therefore could not be convicted by any process especially provided in the act, the inference from this circumstance may be that, in his particular case, the act could have no operation.

But further, if this statute were now the rule of decision, K. has not incurred the disability of alienage, according to the evidence stated. The statute provides against those who, having withdrawn themselves at the commencement of the revolutionary war, should not have returned into some one of the United States, and been received as a subject thereof. In enforcing this statute, it would be necessary, I conceive, that, at the time of the accusation, every circumstance constituting the offence, as specified by the law, should be provable against the party accused. If K. were now on trial for his supposed offence, as described by this statute, it would appear that he had withdrawn himself; but it would also appear that he had returned, and, as I infer from the circumstance of his remaining here unmolested, that he had been received as a member of the state, during the continuance of the war with Great Britain. I conclude, therefore, that K. has not been convicted; and further, that he could not be convicted of the offence by which he is supposed to have incurred the disability of alienage, by force of the statute of 1779 against absentees.

Page 267

The more general principle, which ought to govern in cases of this kind, I take to be this; that the treaty of peace between the United States and Great Britain determined the respective duties and rights of those who, before the revolutionary war, by which distinct communities were finally established, had been the subjects of a common sovereign. By that event, and the mutual agreement of the two nations, those who, by their adherence and residence, had remained the subjects of the king of Great Britain, on the one part, and those who, by their adherence and residence, were then the people of the United States, on the other part, were reciprocally discharged from all opposing claims of allegiance and sovereignty. K., then an inhabitant of this territory, his native soil, was one of the people of the United States in the treaty with Great Britain which terminated the revolutionary war; yet we are now called upon to reject him, and make him a British subject. Upon the whole, I am of the opinion that the decisions and directions in this trial, so far as they have been brought into question before us, were consonant to law, and that a new trial ought not to be granted.

SEDGWICK, J. If it were possible for me to entertain any doubts in this case, I should not now pronounce an opinion; but neither of my brothers doubting, and the question being of very great importance, I must give my opinion upon it at this time.

This Court will never send back parties to a new trial, when the merits of the case and the verdict agree with each other. As this is the fact in the present case, and as one of the points now before us was decided in Gardner's case, [Note 13] I shall confine myself to those particulars in which the present differs from that case. The facts submitted to us, on which there is no controversy between the parties, render it undeniable that K. was entitled to vote, at the time when his vote was rejected by the defendants. I ground my opinion altogether upon the treaty of peace: I do not think it necessary to go through the various other acts which have been produced; I lay them, and the authorities which have been read, out of my consideration. The treaty of peace was so made as to comprehend the rights

Page 268

of subjects of Great Britain, and citizens of the United States. It was, in effect, a compact between the subjects of the King of Great Britain on the one part, and the citizens of the United States on the other. If K. is either of these, and not something different from each, then it is as near demonstration as any thing of this nature can be, that the case he makes out to us proves him to have been a citizen of the United States at the time his vote was refused, and if so, he was certainly entitled to vote. What are the facts? -- leaving out of the question Lilly's deposition, which is not now before us. They are these; that K. quitted the country and that he returned. The circumstances of his return are the best evidence that it was voluntary: he came back during the war between Great Britain and the colonies, and it is perfectly immaterial whether this was a civil or any other kind of war. He came voluntarily, knowing that his services would be required, and his property and person became taxable to carry on the war. While the two parties, then, are contending, he joins the people of one party, and is received by them. If he had been within the law, the government might have then put him out of the country; might have made him liable as a traitor. He, however, as before observed, comes here, and places himself in a situation to contribute to all the efforts and struggles of his country. Then comes the treaty of peace between the two countries, and finds him under these circumstances. Can it be supposed that either party to that instrument was treating with those, who were found under their own jurisdiction, under similar circumstances?

The common-sense construction is, to consider all persons voluntarily acting at the termination of the contest as comprehended in the treaty of peace, and as belonging to that party with which they were then acting. It was the intention of that contract, that no person should suffer in his liberty or property for what had passed and no other construction can attain the objects contemplated by it. Kilham most certainly comes within it, and is therefore to be considered as a citizen of the United States. The merits of the question, then, having been tried, I cannot but concur with my brothers in the opinion that a new trial ought not to be granted. [Note p268-a]

Judgment according to verdict.


[Note 1] 1 Black. Comm. 369, 370. -- Fost. 184. -- 7 Rep. Calvin's case.

[Note 2] 7 Rep. 27, b.

[Note 3] 4 Bacon's Works, 330 to 360.

[Note 4] 17 Edw 2.

[Note 5] 7 Rep. 20, b. -- 4 Bac. Works, 356, 359

[Note 6] Vide 1 Dall. Rep. 58.

[Note 7] Appendix to Mass. Laws, 1046.

[Note 8] Ch. 13, § 1, 2.

[Note 9] 2 Mass. Laws, App 1055

[Note 10] Vide Stat. 30 April, 1779, § 7; 2 March, 1781; 1 May, 1781; 15 May, 781; 6 July, 1781, and 5 June, 1782.

[Note 11] Rastall, 368, 482, 483.

[Note 12] To this point see the cases of Harman vs. Tappenden & Al. 1 East, Rep. 555 -- Drewe vs. Coulton, Ibid. 563, in notis. -- Buller's Nisi Prius, 64.

[Note a] NOVEMBER TERM, 1805. -- In Essex.

Henry Gardner vs. Benjamin Ward, Jun., and Others.

This was an action of the case brought by H. Gardner against B. Ward, Jun., I. Hathorne, A. Richardson, and I. Buffington, selectmen of the town of Salem, for refusing to receive the plaintiff's vote for representatives of the town, at a meeting held May 9, A. D. 1803. At April term, the following state of facts was agreed by the parties, and upon them the plaintiff's right to recover in this action was submitted to the Court.

"The parties agree that the plaintiff was born in Salem aforesaid, in the year of our Lord 1747, where he lived until May, 1775, following the business of a merchant, and then went with his family to Newfoundland, where he resided doing business as a merchant until August, 1780, when, with his family, he went to St. Eustatia, and from thence to St. Christophers, where he purchased a vessel, in which he returned to Salem, in February, 1781. During his absence he left an attorney to transact his business in said Salem; and, after his return, was owner of parts of several privateers, and engaged in privateering against British ships and vessels, until the peace then next following. At the time he offered his vote, as supposed in the writ, his name stood on the list, prepared by the selectmen of Salem, as a legal voter in the choice of representatives.

"It is further agreed that the proceedings in the probate office, copies of which are hereto annexed, relating to the person or estate of the said H. Gardner, are to be taken as part of the case; and that, during the said Gardner's residence in Newfoundland, he, at sundry times, lent money to American prisoners carried in there; and while at St. Eustatia, after its capture, Americans there lodged their effects with said Gardner, supposing them as safe as with any British subject, which he safely kept, and restored to the owners.

"And if, on the above facts, the Court shall be of the opinion that the plaintiff had a right to vote, then the defendants shall be defaulted, and the damages assessed by a jury; but if otherwise, then the plaintiff shall be nonsuit."

Theophilus Parsons for the plaintiff.

N. Dane for the defendants.

The proceedings in the probate office, referred to in the foregoing statement, were-

1st. A certificate from the committee of correspondence, &c., for the town of Salem, dated March 2, 1779, stating that Mr. G. had absented himself from the town and voluntarily gone to the enemy.

2d. An appointment by the judge of probate of David Felt as an agent for the estate of said G.

3d. A warrant of appraisement, and a sworn inventory of the real and personal estate of Mr. G., returned by the agent. This cause was argued at Salem, November term, 1804, by Parsons and Putnam for the plaintiff, and the attorney-general, Sullivan, and Dane for the defendants, and at this term the following opinions were delivered by the judges present:-- Sewall, J. [After a concise recital of the facts, and observing that some circumstances of Mr. G's. conduct, while abroad, had been introduced by the parties in their statement, which having no very apparent tendency upon the question finally submitted to the Court, he should not advert to them, proceeded.]

The question is, generally, whether H. Gardner, when his vote was rejected by the defendants, had the rights of a legal voter in the town of Salem, and a capacity to vote in the election of a representative. And this question, as explained in the argument we have heard upon it, depends altogether upon this inquiry -- whether H. Gardner was, at that time, a citizen of the United States, or an alien.

For the defendants it has been argued, 1st. That the plaintiff was, according to the facts stated, an alien by birth, and never has acquired any qualification of citizenship within the United States: or, 2dly. If by his birth he had that qualification, and might have retained it, yet by his absence in the manner represented, during a part of the revolutionary war, he incurred the disabilities of alienage consequent thereupon, or as the forfeiture and penalty annexed to the offence of absence, in the manner now charged upon him.

For the plaintiff it has been contended that, by his birth and residence, at the commencement of the revolution, and at the treaty of peace, he was a citizen of the United States, and had never incurred the disabilities or forfeitures supposed by the defendants.

In pursuing this inquiry, it is important to determine what were the rights of Mr. G., or in what state he must be considered in law, whether as a citizen or an alien -- taking the question as not affected by any conduct of Mr. G., nor by any legislative act appointing certain consequences to the conduct with which he is now charged.

In determining this question, we are to be governed altogether by the principles of the common law: "and from whatever source these may have been derived, and in whatever form expressed, the substantial part of them is founded in reason and in the nature of government." (a)

I take it, then, to be established, with a few exceptions not requiring our present notice, that a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term "citizenship." The place of birth is coextensive with the dominions of the sovereignty entitled to the duty of allegiance; and it has been held that, in the event of a partition of these dominions, under distinct sovereignties, the natives remain attached, and retain their rights of citizenship, with each portion of the sovereignty -- upon this principle, that the right of citizenship in the native soil, and according to the condition of the government at the time of birth, is a natural right, not affected by the after-changes in the sovereignty. These doctrines are to be found in the decisions upon Calvin's case, reported by Lord Coke. (b)

To apply these doctrines in the case before us, according to the political revolution in the sovereignty of Mr. G's native land: By his birth he had the rights of citizenship in every part of the dominions of the crown of Great Britain; and especially, in the event of a separation, in that portion of them which immediately includes the domicile of his birth. The change of sovereignty there did not, by the course of the common law, divest him of the natural rights of a citizen in his native land. If he has lost or forfeited these rights, it must be by the laws and decrees of the sovereign to whom he became more immediately a subject, or of whom, in the event of the revolution, he must claim his supposed rights. This case, in my apprehension of it, must therefore be considered as depending altogether upon the statutes of the government of this state, and perhaps, in some degree, upon those compacts, in which this government is a party, made with the former sovereigns of this country.

The statute(c) of treason was first cited for the defendants; particularly the description of persons owing allegiance to this state. These are declared to be -- 1st. All persons abiding within this state, and deriving protection from the laws of the same. 2d. Persons passing through, or having a temporary residence therein, during the time of their residence. It is remarkable that, in this description, persons born within the territory of the state, those who by the common law owe perpetual fealty and allegiance, are not specified, or are not distinguished from mere residents -- and that of these, it is not only declared that "they owe allegiance," but also that "they are members of the state."

To give this statute any useful construction, it must be understood to speak, not only of those who, at the moment when it was enacted, were abiding within the state, but of all who then had, or at any subsequent period should have, their abode therein: all these persons are declared to be "members of this state," without any distinction of natives. Upon the ground of this statute it might be argued, contrary to the intention of those who cited it, that Mr. G., wherever his place of birth had been, if, during the complete operation of this statute, he had his abiding-place within this state, became thereby a member of the state; that is, acquired a citizenship; for I know of no rule to be employed in distinguishing members of this state from citizens. This operation of the statute, to confer the rights of citizenship, must be limited to the period preceding the establishment of the constitution of government of the United States. But in that period Mr. G., according to the state of facts, had his settled abode in his native place within this state, having returned thither in 1781, and there since continued to reside.

It has been argued, however, that whatever, by the common law, had been the privilege of a native, -- and it may now be said, whatever character any person, entirely a foreigner, might have acquired by the operation of the statute of treason, -- yet Mr. G., by the operation of other statutes passed during the revolutionary war, was under a specific disqualification and disability, as a banished, proscribed, or excluded person And this seems to be the ground ultimately relied upon by the defendants.

Several statutes, supposed to have this effect, have been cited and commented upon at the bar, viz.:--

1st. "An Act (d) to prevent the waste, destruction, and embezzlement, of the goods or estates of such persons who have left the same, and fled to our enemies for protection; and also for payment of their just debts out of their estates."

This act determines nothing as to the condition or exclusion of the absentees; but only provides for an inventory of their effects, the appointment of an agent to preserve them from embezzlement, &c.

2d. "An Act (e) prescribing and establishing an oath of fidelity and allegiance"

This act is equally inconclusive respecting the present question; unless it should be agreed, that the disqualification and incapacity of becoming a citizen are to be inferred from the power of excluding certain absentees, or persons who have left this state, from the oath of allegiance.

3d. "An Act (f) to prevent the return to this state of certain persons therein named, and others, who have left this state, or either of the United States, and joined the enemies thereof."

This act seems alike inapplicable to the case before us, unless perpetual alienage and incapacity may be inferred from the power of apprehending and transporting certain persons therein named, or having the character therein described. It is not pretended that Mr. G. was included by name in this last act, and whether by description, in this or the act last before cited, might be a question. But I forbear entering upon it, from this consideration. It does not appear, in the state of facts, that Mr. G. was ever excluded from the oath of allegiance, according to the provision of the one, or was ever apprehended or transported, pursuant to the provisions of the other, of these two acts. The penalties thereby enacted, whatever may be their extent, have not, therefore, attached upon him. It is further observable that this act of 1778 was repealed by the act of March 24, 1784, hereinafter noticed.

The defendants have appeared to rely more confidently upon the act passed in 1779 entitled "An Act (g) to confiscate the estates of certain persons commonly called absentees." By this act, "Every inhabitant of the late province, then state, of Massachusetts, who had levied war, or conspired to levy war, &c., or who, since April 19, 1775, had withdrawn, without the permission of the legislative or executive authority of one of the United States, from any of the said provinces or colonies, into parts or places under the acknowledged authority and dominion of the king of Great Britain, and who had not returned into some one of the United States, been received as a subject thereof, and, if required, taken an oath of allegiance to the United States, shall be deemed to have renounced all allegiance, and to have become an alien.

It has been very earnestly and ingeniously argued for the plaintiff that, upon the facts stated, he is not to be considered as a person who had committed either of the offences described in this act; that his absence from the United States, commencing in May, 1775, was for temporary purposes only; that this construction of it is determined by the circumstances stated, of vessels and other property left by him at Salem, of his conduct while abroad, and his return during the continuance of the war; that Newfoundland, the place to which Mr. G. first resorted, after he left Salem, though "beyond seas, and under the acknowledged dominion of Great Britain," was not in a state of hostility with the United States when Mr. G. arrived there in 1775, but was one of the places excepted by Congress, at the commencement of the revolutionary war.

After a full consideration of the subject, I am not satisfied that this view of the case before us is correct; but I am inclined to the opinion that Mr. G.'s absence, in the manner stated in this case, might have been construed a criminal withdrawing of himself, within the intent of the statute under consideration, subjecting him to the penalties thereby enacted, if, at his return within the United States, no other facts than those now disclosed could have been offered to explain or justify his conduct. Newfoundland, if not hostile when Mr. G. arrived there, became, at an early period afterwards, a place in open and declared hostility with the United States, and was a place of that description while Mr. G. continued his residence there, without any effort, which now appears, for a removal therefrom. And he remained there in 1779, when this act passed. But, in the application of it now attempted, another question arises: whether a judgment of alienage, or for the purpose of inflicting the penalties prescribed by this statute, may be now rendered in this incidental and (as to the trial of these facts and their consequences) extra-judicial manner.

This statute, severely penal, and (respecting the facts thereby declared criminal) altogether retrospective, provided a mode of proof to ascertain and convict the persons liable, and who had incurred the forfeitures and disabilities enacted against the offences therein described. The statute required that a complaint should be exhibited, "against any person who had offended in the manner therein described, setting forth clearly and plainly the offence such person is charged with," &c.; -- that notice thereof should be given, and that any person might appear to defend in behalf of the party accused, that a trial should be had "in the known and ordinary course of the law," and that judgment should be rendered upon the verdict of a jury finding the forfeiture, or, according to the provisions of a subsequent and additional act, (h) upon a default or failure of any person to appear, after notice of the complaint in the manner therein directed.

At the return of Mr. G. to Salem, in February, 1781, no information had been filed against him, and no judgment, to the purpose or effect of the statute now under consideration, has ever been rendered against him. In the present action, then, upon any state of facts not including the record of a conviction of Henry Gardner, can this Court adjudge him to have incurred the disability contended for by the defendants, and essential to their defence? In this view of the question, I apprehend that courts of law can admit no other evidence of offences than regular convictions. The reasonableness of this maxim is an authority for it; but I shall cite Lord Coke's 2 Inst 468. -- "It is to be understood, in acts of Parliament, where there be degrees of punishment to be inflicted upon the first, second, and third offences, &c., there must be several convictions, that is to say, judgments given upon legal proceeding for every several offence; for it appeareth to be no offence, until judgment, by proceeding of law, be given against him."

Upon the application of this statute to the case of Mr. G., it may be further observed, that the penalties of alienage and forfeiture are to be inflicted, not upon a person who had merely withdrawn himself; but, to constitute the whole offence, it was requisite, by the statute, that he should not have returned and been received within some one of the United States. The statute has not limited the time of the return and reception, which might do away the crime of withdrawing. I therefore construe it to intend a return and reception before the time of the accusation, or the time to which, in its nature, it must relate. Upon this construction of the statute, the case of Mr. G., in any view of it, is not within the statute; for, before the accusation first offered in defence of this action, or any time to which it can relate, -- that is, before the close of the revolutionary war, -- Mr. G. had returned to Salem, his native place, and been there received. I infer his reception from the notoriety of his return and residence there, according to the facts stated, and from the consideration that the statutes for expelling and transporting obnoxious absentees were then in full force and operation. The forbearance, in this respect, used on that occasion, affords a violent presumption, and is with me satisfactory evidence, that he had, upon his return, a favorable reception. Hard, indeed, must be the case of a man who, at his return within the country, had been forgiven, or had been able to explain and justify his absence, to be at this day, after a lapse of twenty years, exposed to the severities of this act, because perhaps the proofs of his defence, then satisfactory, and tacitly allowed, are no longer in being.

The defendants cited, lastly, the act of 1784, entitled "An Act for repealing two laws of this state, and for asserting the right of this free and sovereign commonwealth to expel such aliens as may be dangerous to the peace and good order of government." This act passed after the return and reception of Mr. G. within the United States; after he had a settled abode at Salem within this state; after he had become a party on the American side in the war against Great Britain; and, I may add, according to my construction of the act against treason, after he had become a member of the state, unless excluded by the operation of the statutes already considered. Without recurring, therefore, to the objection drawn from the constitution of this state, then in operation, which annuls every ex post facto law, it is sufficient to say, that this case of Mr. G. could not be within the intentions of the legislature in their act of 1784.

Upon the whole, understanding that, by the common law, a man owes allegiance to the sovereignty of the country wherein he was born; that he has a natural right, which the common law recognizes and preserves, to protection and citizenship from the actual sovereignty of his native country, under every revolution of it, until deprived by an express attainder, or until he shall have incurred a forfeiture of these privileges, upon a regular conviction and judgment of some offence liable thereto; that, in the case of Mr. G., it appears that he is a native of this state, and had his settled abode therein during a part of the revolutionary war, and at the close of it by the definitive treaty with Great Britain; and that he has never been attainted or convicted of any offence incurring the penalty of alienage, as a disability or exclusion; -- I conclude him to have been a citizen of this state at the time his vote was refused by the defendants, and that this action, upon the statement of facts before us, is maintained, in vindication of the plaintiff's rights and capacity as a legal voter within the town of Salem.

It may be apprehended that, by the principles of the common law, cited on the subject of alienage, a mutual citizenship of all persons born before the separation of the two countries then under a common sovereign continues to this day; and that, upon the construction and limited effect which I have given to the Absentee Act, as it is called, all who were native inhabitants of this state, but who departed therefrom at the commencement of the revolutionary war, and have remained within the British dominions, are now citizens of the United States. Objections of some importance must be supposed to arise from these inconveniences, in a political view of the subject. But I think that, by recurring to the definitive treaty between the United States and Great Britain, at the close of the war, the apprehension I have suggested may be entirely removed. The definitive treaty established, in a legal sense, the distinct sovereignty of the United States, and their separation from the other dominions of the king of Great Britain. His Britannic majesty thereby acknowledged the United States, formerly the British colonies, to be free, sovereign, and independent, and relinquished all claims to the government, and proprietary and territorial rights, of the same; and the peace, thereby established, was declared to be between the citizens of the one and the subjects of the other. This relinquishment on the part of Great Britain, and the acceptance of it on the part of the people of the United States, determined their respective claims of allegiance and citizenship. By this compact and event, those natives of the British dominions who were then settled within and under the protection of the United States, not being excluded or disqualified, nominally or judicially, by the effect of any special statute or regulation within any state, became citizens of the United States, and aliens to their former sovereign; while those who continued settled within the territories of their former sovereign, and under his protection, adhering to their former allegiance, are, by the same compact, aliens from the new sovereignty recognized by the treaty.

It may not be impertinent, however, in this discussion, to observe further, that the right of citizenship throughout the dominions of the native sovereign, which I have supposed to be a principle of the common law, is restored, in a limited degree, by the treaty of London, (i) to British subjects and American citizens, who, in respect to the titles and tenures of certain real estate, and the legal remedies incident thereto, are not to be regarded as aliens under either sovereignty -- a regulation important to the welfare of individuals, in the event of a divided sovereignty, and dictated by the principles of natural justice.

SEDGWICK, J. As this cause has been considered at great length, it has become unnecessary, and perhaps might be deemed improper, in me to attend to it in all the minute particulars. During the able argument which we have heard, I was strongly impressed with an opinion, that the decision must essentially depend on a just construction of the act of the 30th of April, 1779, and the treaty of peace made between the United States and Great Britain in 1783; -- and this impression has been strengthened by further reflection.

The act of April 30, 1779, was passed before the adoption of the constitution, by a legislature possessing undefined powers, wholly unlimited and unrestrained, so far at least as respected the objects of that law. It is "An Act for confiscating the estates of certain persons commonly called absentees." The great and leading object of the act is the confiscation of those estates; but it also determines, as was necessary, who are those absentees; and how they are to be considered in relation to the state, that is, as aliens. The preamble asserts the right of every government to command the personal service of all its members, whenever the exigencies of the state shall require it; especially in times of impending or actual invasion; that no member can withdraw himself from the jurisdiction of the government without justly incurring the forfeiture of all his property, rights, and liberties, holden under and derived from that constitution of government, to the support of which he hath refused to afford his aid and assistance. It then goes on to state the aggressions of the British government and the resistance of the United States, in which it was the indispensable duty of all to unite; and that nevertheless divers of the members of this, and of the other United States, regardless of their duty towards their country, did withdraw themselves from this and other of the United States into parts and places under the acknowledged authority and dominion of the king of Great Britain: after this preamble, the first section enacts "that every inhabitant and member of the late province, now state, of Massachusetts, or any other of the late provinces or colonies, now United States, of America, who, since the 19th of April, A. D. 1775, hath done the acts therein specified, and among them withdrawn, without the permission of the legislature or executive authority of this or some other of the said United States, from any of the said provinces, colonies, or United States, into parts and places under the acknowledged authority and dominion of the said king of Great Britain, and who hath not returned into some one of the said United States, and been received as a subject, and, if required, taken an oath of allegiance, -- shall be held, taken, deemed, and adjudged, to have freely renounced all civil and political relation to each and every of the said United States, and be considered as an alien." The facts agreed bring the plaintiff expressly within this section of the act. He was an inhabitant and member of the late province, then state, of Massachusetts: For he was born at Salem, and resided there until the time that he withdrew himself. That was after the 19th day of April, 1775, viz., in May in the same year. He then withdrew himself to Newfoundland, a place under the acknowledged authority of the king of Great Britain: at the time of the passing of the act, he had not returned into any of the United States and been received as a subject thereof. The consequence is irresistible that the facts bring this case within the act; and if they had been ascertained by a judgment, in the manner which the act provided, he must have been subjected to the consequences, and considered as an alien. This act of 1779 was confirmed, if it was in the power of the legislature to confirm it, by the act passed on the 24th of March, 1784, for repealing two acts of 1778, on the subject of the absentees, and for asserting the rights of the state to expel such aliens as may be dangerous to the peace and good order of government. This is most manifest from an attention to the preamble and the 2d and 3d sections. As, then, the facts which are agreed bring the plaintiff's case clearly within the act of 1779, it is important, in my opinion, to determine whether, by the treaty of peace between the United States and Great Britain, he is relieved from the consequences which might have attached upon him, from the facts which are agreed -- that is, to be considered thereby as an alien.

The case of the United States, in their separation from Great Britain, is altogether so singular in its nature, and its effects on the rights, duties, and relations, of those connected with it so unprecedented, that very little, if any, light can be thrown upon it by recurrence to authorities. The inhabitants of the provinces, previous to the 4th of July, 1776, were the subjects of the king of Great Britain; and the provinces themselves, in some sense at least, the colonies of Great Britain -- for it was conceded that the mother country possessed power of regulating their commerce. In consequence of various acts of Great Britain, as well legislative as executive, which were by the colonies deemed grievous and oppressive, a war took place, which was commenced on the 19th day of April, 1775. As to the justice of this war, various opinions were holden both in Great Britain and America. No adjustment having been made, and the applications for that purpose on behalf of the colonies having been rejected, Congress, on the 4th of July, 1776, declared them independent states, and this declaration having been approved and ratified by them respectively, it has ever since been holden in this country that, from that time, we were of right, as well as in fact, independent states, and entitled to exercise all the rights of sovereignty. In consequence of this claim, the states respectively assumed and exercised the rights of sovereignty, and, among other things, entered with each other into "articles of confederation and perpetual union" -- whereby they gave to their representatives in Congress various powers, and among others those of peace, of war, and of treaties. Such powers would be of little avail, they could not answer the purposes for which they were intended, unless they were paramount to and controlled the laws of the individual states. By virtue of these powers, Congress, on the 30th of November, 1782, through the medium of their plenipotentiaries, entered into certain provisional articles of peace with Great Britain, which were of the same tenor as the articles of the definitive treaty, which was concluded on the 3d day of September, 1783. Both these treaties have been duly ratified by the governments of the two countries respectively. It has already been said that treaties, to effect the purposes for which they are designed, must control all the laws of the states which are opposed to their stipulations. This is evident from the nature of the thing: but the constitution of the United States has not left the establishment of this principle to construction, having expressly provided "that all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding;" (k) so that, if there be any opposition between the treaty and the law, the former must prevail, and the latter, so far as that opposition exists, is repealed; and it cannot be necessary to prove that, if the original act of 1779 is repealed, the confirmatory one of 1784 is wholly inoperative. A war existing between two countries united under one sovereign, a mother country and its colonies, they having assumed the character of independent states, is terminated by a peace. The treaty is between the king of the mother country and the states, and between the subjects of the one and the citizens of the other. (l) The plaintiff is a party to this treaty, his rights and interests are involved in it, either as a subject of the king of Great Britain or as a citizen of the United States. Soon after the commencement of hostilities, the next month, being settled as a merchant at Salem, the place of his nativity, he removed with his family to Newfoundland, from one British colony to another. He did not, however, abandon all connection with Salem; he left there an attorney, to transact his business. At Newfoundland he did the business of a merchant. It is not stated, nor even pretended, that he performed a single act of hostility; and we ought not to presume, without evidence, so harsh a thing, as that he warred against his native country; and especially, as disfranchisement is contended for as the consequence of his conduct. De non apparentibus et non existentibus eadem est ratio. It is of the highest importance for the security of the rights of individuals to respect this maxim. What, then, are we to conclude from the facts agreed between the parties? -- That the plaintiff, during his absence from his native place, was innocent in all things, excepting only that he deprived his country of his personal services during the time of his absence. The case does not stop here. In August, 1780, he left Newfoundland and went to the West Indies; and in February, 1781, one year and nine-months before the provisional articles of peace were executed, and two years and seven months before the definitive treaty was concluded, he returned to Salem. And on his return, he entered actively into the war on the part of his country. He was the owner of several parts of privateers, and engaged in privateering against the enemy, and this line of conduct he continued until the peace. He left the country animo revertendi, with an intention to return; this is evinced by his having an attorney to transact his business at Salem, by his conduct while absent, by his returning during the war, and by his engaging actively in it, on his return. In his absence he is perfectly innocent of every thing active against the United States: -- he returned, and immediately joined his country in active hostility against the enemy. He was received in his native town without reproach and without question. He was there domiciled at the time of the treaty, and there has ever since remained. And shall it now be said that he was not then a citizen, an inhabitant; -- that he was not of that party with which he was, but of that with which he was not, acting? The treaty, on the part of Great Britain, stipulates "for and with the people," the "inhabitants," the "citizens" of the United States. By these several names are they called in the treaty. And it does seem to me that the facts disclosed show that he was, at the time of the treaty, one of the people, a citizen of the United States, and an inhabitant of Salem, there having his domicile. There is nothing which shows he was then a subject of Great Britain. He was then, as has been said, either a subject of the British king, or an American citizen: from the facts, as before observed, it is most clear that he must have been one or the other; and if, from the part he was acting, and the business he was then engaged in, the place of his domicile, and the manner in which he there employed himself, he could not be considered as a British subject, he was, of course, a citizen of the United States. Suppose, then, that the plaintiff's going to Newfoundland was an offence for which he might have suffered but for the treaty; yet having, previous to the treaty, reunited himself to, and taken part with, his countrymen, -- and it being impossible to consider him, at that time, as one with, and for whom, the United States were contracting as a British subject, -- he is entitled, as a citizen of the United States, to the benefit of that stipulation in the treaty, that he should suffer no future loss or damage, either in his person, liberty, or property, for the part which he took in the war; (m) and yet the defendants, in their defence, insist that he shall suffer a loss, for the part which he did take in the war, the most mortifying and degrading to a generous mind -- that of disfranchisement.

Besides, the liberal stipulation for the indemnity of all who had taken a part on either side, to do justice, must be perfectly reciprocal and mutual -- that is, wherever it is an indemnity to an American citizen, in any given circumstances, it must be an indemnity also to a British subject. It has already been observed that we, the United States, claimed a right to independence from the time we declared it, on the 4th of July, 1776. On the other hand, Great Britain claimed a supremacy until they gave us independence by the treaty. Till then, she holds that we were her colonies, and that then, and by her act, we became sovereign and independent. -- As it respects a vast variety of subjects which might, but which were unnecessary to be mentioned, the American construction is undoubtedly correct, but as respects the construction immediately under consideration, it would, I think, be extremely erroneous. As to the separation of people into two distinct and independent communities, I think the settled situation and circumstances of individuals, at the time of the treaty, ought to determine their relation, and the party to which in future they are to belong. During the war there was a great shifting and fluctuation of opinion and conduct. Men chose sides and changed them, as a sense of interest or a feeling of conscience dictated. Nicely to discriminate and to retribute, as individuals might happen to be within the power of the respective divisions of country, would have been unwise, mischievous, and cruel. It was infinitely more liberal to cast the mantle of oblivion over the past, and to settle men, as they, by their last opinions and conduct, had settled themselves, and to give them their own choice as to their future connection, as they were then declaring it by their own conduct. This spirit of conciliation, which, on the return of the blessings of peace, ought to prevail, dictated the terms of the treaty. A contrary decision could produce no good, and it could hardly fail of producing great mischief. Suppose we continue to maintain the treaty of peace, and, notwithstanding, that any person who withdrew himself, and voluntarily went to a place under the acknowledged dominion of the king of Great Britain, after the commencement of hostilities, whatever his future conduct might have been, and although he might for years have been actively employed against the enemy, and at the time of the peace was engaged in our armies, -- had, by his delinquency, without any prosecution, trial, or judgment, ipso facto become and must continue an alien; -- what would, in this case become of reciprocity? Great Britain, until the peace, considered all who were in arms as equally rebels. She must, therefore, consider the character of subject or citizen as determined by their situation, circumstances, and the part they were acting at that time. Take another case; suppose we go back to the Declaration of Independence to determine citizenship. A man leaves his country after that declaration, as was the case with many. He joins the British army, and continues to serve in it to the close of the war. Is he an American citizen? If so, and a future war should happen between the United States and Great Britain, and the man should be taken he must be considered as a traitor, and punishable for rebellion. Here again there could be no reciprocity, for the principles adopted by the British government would not permit her to retaliate in a case similarly circumstanced in relation to itself.

I am, on the whole, clearly of opinion that judgment must be given for the plaintiff

Dana, C. J., concurred.

Judgment for the plaintiff.

(a) Bla. Com 366.
(b) 7 Rep. 54 55, Postnatus may be ad fidem utriusque regis.
(c) 1777, chap. 71 § 1.
(d) 1777, chap. 38
(e) 1778, chap. 17.
(f) 1773, chap. 13.
(g) Chap. 10.
(h) 1780, Dec. 4, chap 75.
(i) 1794, Nov. 19, § 9.
(k) Art. VI.
(l) Art. VII.
(m) Art. VI.

[Note 13] That a conviction under the statute of 1779 was necessary, &c.

[Note p268-a] Ainslie vs. Martin, 9 Mass. 454 . -- Martin vs. Woods, 9 Mass. 377 . -- Manchester vs. Boston, 16 Mass. 230 -- Cummington vs. Springfield, 2 Pick. 394 -- Auchmuty vs. Mulcaster, 5 R. & Cr. 775. -- Bright, Lessee, vs. Rochester, 7 Wheat. 535. -- Doe, dem. Thomas, vs. Acklam, 2 B. & Cr. 779.