ASA KILHAM vs. BENJAMIN WARD

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.