
    * Israel W. Putnam versus William Johnson and Others.
    A student in the theological institution at Andover, being of age, and otherwise qualified according to the constitution, and being also emancipated from his father’s family, is entitled to vote in that town in the election of senators.
    The declaration was in case, and alleges that the defendants were duly chosen and qualified as selectmen of the town of Ando 
      
      ver, in the month of March, 1813; that a town-meeting was called on the first Monday of April following, for the inhabitants qualified therefor to give in their votes for governor and lieutenant-governor of the commonwealth, and for three senators to represent Essex South district; that, at the meeting so called, the defendants presided, and undertook to receive the votes of the inhabitants so qualified, and then and there present; that the said inhabitants did give in their votes accordingly. The plaintiff then avers that he, on the said first Monday of April, was upwards of twenty-one years of age; that he then was, and ever since the 14th of April preceding had been, an inhabitant of Andover; that he was born in Danvers, in said county of Essex; that, on the said first Monday of April, and long before, he was a free citizen of this commonwealth ; that he then had and was possessed of an estate within the commonwealth of a greater value than two hundred dollars; that it was the duty of the defendants to have inserted his name upon the list of the inhabitants of Andover qualified to vote for senators as aforesaid, which was made out, revised, and corrected, prior to the opening of the said meeting; and that he then was lawfully qualified to have his name inserted upon the said list, for the purpose of giving his vote for senators as aforesaid. Yet the defendants, although well knowing the premises, contriving and fraudulently intending to deprive the plaintiff of his right and privilege of voting for senators as aforesaid, and him to disfranchise, wrongfully and absolutely re fused to insert his name upon the said list, by which means he was prevented and hindered from voting for senators, &c., and deprived of exercising one of the dearest rights appertaining to him as a free citizen of this commonwealth.
    * Another count sets forth that the plaintiff offered to give in his vote at said meeting for governor, lieutenant-governor, and senators, and requested the defendants to receive and allow the same, as their duty required ; yet the defendants, unmind ful of the trust reposed in them, and contriving, &c., then and there refused to receive the same, and wrongfully hindered the plaintiff from giving his vote at the said election.
    At the trial of the action, which was had upon the general issue before Sewall, J., at the sittings here after this term, a verdict was found for the plaintiff, subject to the opinion of the Court upon certain facts agreed by the parties, and certain evidence given at the trial, and reported by the judge who presided thereat.
    It was admitted that the plaintiff was born in Danvers, on the 24th day of November, 1786 ; that he resided there, in his father’s family, until he entered Dartmouth College, in August, 1805 ; that he was graduated at the said college in 1809; that he then went to 
      Salem, and resided there as a student at law until the 13th of April, 1812, when he went to Andover; that he resided in Andover during the vacation of six weeks [in the theological seminary] in May and June, 1812, and of the vacation of six weeks in the autumn of that year he spent about half at his father’s house in Danvers, and in visits,to different places; that he did, on the first Monday of April, 1813, request the defendants to insert his name upon the list of voters in Andover, for senators; that they refused to insert it; that at the said meeting he offered his vote for senators, and the defendants refused to receive it; that he possessed sufficient personal estate; and that he was taxed in Salem in the years 1810 and 1811, and paid his taxes, and voted in said town after March, 1810, until he left that place in April, 1812.
    The judge also reported that Eleazar Putnam, the father of the plaintiff, testified that his son, since he left college, had received no support from him, or any assistance * except [ *490 ] in the way of credit to him, and was not of the father’s family, but separated, and, as the father believed, was upon the charity foundation at Andover, and that he owned some real estate. Marie Newman, Esquire, testified that the plaintiff was upon the charity foundation in the theological seminary at Andover; that students in divinity on that foundation are restricted to a residence of three years before they are entitled to a license to preach, and are permitted to continue their residence there afterwards; that the residence of students is in chambers, as at a college, with board in commons; that he had not known of any students in the theological institution who had been admitted to vote, and that they had not taken any concern in town affairs; that a Mr. Scammon, in 1812, while a student, claimed a right to vote, and was refused; and that theological students, when licensed to preach and em ployed as candidates for the ministry, reside and make their home at the institution, and in the vacations generally go from thence, but sometimes continue there.
    Upon the facts agreed and testified, the judge charged the jury that the plaintiff was to be considered as having his domicile in the town of Andover, and as entitled to vote there in the election of senators, being otherwise qualified as a voter. The defendants moved for a new trial; and the action was continued nisi for the consideration of that motion. In the vacation following, the counsel on each side transmitted to the Court written arguments, with which the reporter has been favored.
    
      Saltonstall, for the plaintiff.
    The constitution of this commonwealth provides that every person, having certain enumerated qualifications, — which the case clearly shows the plaintiff to have possessed,—shall have a right to give in his vote for senators for the district of which he is an inhabitant. And “ to remove all doubt concerning the word inhabitant in this constitution, every person shall be considered as an inhabitant (for the purpose of electing or being elected into any office or place within this [ *491 ] state) * in that town, district, or plantation, where he dwelleih or hath his home.”
    
    The object of this clause was to make a plain and simple rule, which might be perfectly intelligible to those town officers who preside at elections, and to the electors. But if by dwelling or having one’s home means here, as it was contended for the defendants at the trial, the same thing as a legal settlement within the intent of the statutes providing for the support of paupers, instead of doubts being removed from the subject, it will be involved in great obscurity and uncertainty, and each individual question must be determined by the nice and subtile distinctions of settlement cases.
    Many reasons might be given why a person is entitled to vote in a place where he does not dwell in such a manner as to gain a new settlement. But this is unnecessary ; for the plaintiff was emancipated from his father’s family, according to the rules established upon that subject; and if the father should remove from Danvers and gain a settlement in another town, the plaintiff would not derive a new settlement under him.  In the case of The King vs. The Inhabitants of Wilton cum Twambrookes, 
       Lord Kenyon said, “The cases of emancipation have always been decided on the circumstances either of the son’s being twenty-one, or married, or having gained a settlement in his own right, or, as in the case of the, soldier, (Rex vs. Walpole St. Peters, Burr, S. C. 638,) having contracted a relation which was inconsistent with the idea of his being in a subordinate situation in his father’s family.” In the case of The King vs. The Inhabitants of Roach, 
       Lord Kenyon thus explains his opinion just cited : “ I think I could not have said, because it never was my opinion, that the mere circumstance of the son’s attaining the age of twenty-one was an emancipation, so as to prevent his having a derivative settlement gained by his father after-wards, if the son continued to live with the father; for if the son, with unbroken continuance, remain with, and a member of, the father’s family, he is not emancipated. But this propo[*492] sition will * not break in upon any of the cases, but may be reconciled with all of them; namely, that if a child, under the age of twenty-one, leaves his father’s home, and is thereby qua severed from his father’s family, and returns to his father during a state of pupilage, during which time policy requires that the child should be under the protection of his father, he must be considered as incorporated with his father’s family, unless he has gained a distinct settlement of his own, or has become the head of a family himself; but, if the child, after a state of pupilage, sever himself from the father’s family, he cannot afterwards be incorporated with it.” “ The rule to be extracted from the cases is this: If the child be separated from the parents, and, without marrying or obtaining any settlement for himself, return to them again during the age of pupilage, he is to all intents a part of his father’s family, and his settlement will vary with that of his father; but if, when that time arrives, when, in estimation of law, the child wants no further protection from the father, the child removes from the father’s family, he is not, for the purposes of a derivative settlement, to be deemed part of that family: this rule will reconcile all the cases, and will be found to be an intelligible one.” In the same case, Ashurst, J., said, “ When a child becomes of age, he is then suijuris; and if he leave his father’s house and put himself under some other control, this is a kind of public notification that he means to leave his father’s family.”
    These principles will govern the case now under consideration, and the plaintiff is clearly emancipated by the rule here explained and established. Almost all the circumstances mentioned as necessary to emancipation concur in this case. The plaintiff had separated himself from his father’s family, after he was of an age to act for himself; and had, moreover, contracted a connection inconsistent with his being in a subordinate situation in his father’s family, as in the case of the soldier before referred to. He was twenty-one before he left his college. He then entered on the study of * the law at Salem. He then left his father for the [ * 493 ] purpose of seeking his livelihood in the world. He set out for himself, according to the custom of our country, where it is considered, at least by our farmers, that a liberal education is a son’s portion, and prepares him to obtain his own livelihood from the time of his leaving college. While at Salem, he was not under his father’s control, nor did he receive any support from him. There he voted, paid taxes, and exercised the rights and performed the duties of an inhabitant. Thence, after having nearly completed the usual term of study, being then twenty-five years of age, he determined to change his profession, and removed from Salem to Andover, with a view to qualify himself for a preacher; and this without the direction or advice of, or any pecuniary aid from, his father.
    The plaintiff is not now under the control of his father, nor has he any other connection with his family than any good son, living at no greater distance, will have, although unquestionably emancipated. He has become a member of a new family, where he receives his support, and with which he has formed a connection wholly inconsistent with the idea of his being under parental control in his father’s family. Neither is there any thing in his case which indicates an intention to return to his father’s family, or to the town of Danvers, to reside there again. It is not customary for persons in his situation to return to their fathers’ families. They go forth as candidates, and their home is at Andover, until they obtain a parish. The plaintiff has not lived with his father or in Danvers since 1805; he has derived no assistance from him since that period. After having prepared himself, at such labor and expense, to obtain a living for himself, it cannot be supposed that he has animum revertendi. He has, in fact, his home at Andover, and visits his father’s house occasionally only, or for a particular purpose.
    This case has been compared to that of students at college ; but it more resembles the case of resident graduates or in- [ * 494 ] structors, * who have always voted in the town where the college is situated at which they reside. Undergraduates in this state are, for the most part, under twenty-one, and are in a state of pupilage, under' parental protection and control. After leaving the university, when, instead of returning to their fathers’ houses, they determine on their own pursuits, and reside in other places, as the plaintiff has done, their domicile is where they reside.
    Nor is it an objection, of any weight, that the students in the seminary at Andover are under regulations, and live in chambers and in commons, as at a college. The tutors and other officers in our' university are also subject to the statutes of the society, and they, too, live in chambers and in commons; yet they are always permitted to vote for governor, &c. But this objection lies equally in other cases. Many men in different situations in society are as much under regulations as the students of colleges. In manufacturing establishments, the officers and laborers are equally under the laws of the corporations, and they contract for a limited time.
    Should it be decided that the plaintiff has not the right of voting in Andover, great inconveniences will ensue. Many persons must forfeit the privilege, or be obliged to travel, at a great expense of time and money, to distant parts of the state to exercise it. This would operate injuriously to the seminary at Andover and other literary institutions, and would be demanding of those who are connected with them too great a sacrifice for the use of their constitutional rights.
    But it seems very clear that, if the plaintiff has not his domicile in Andover, he cannot be said to have any. His connection with his native town has been long since dissolved. He visits it but as a stranger. Unless he is entitled to vote in Andover, he is disfranchised, although possessing the constitutional qualifications of a voter. His case is like that of very many persons who dwell in town with an expectation of passing an indefinite time there, and without any intention of removing afterwards to any particular place, and who may possibly continue where they are. ■ The only * intelligible and equitable rule on the subject [ * 495 ] seems to be, that such persons are legally entitled to vote at the place of their constant residence for the time being, which is their domicile within the intent of the constitution.
    
      Dane, for the defendants.
    The general question in this case is, whether the plaintiff had a right to vote for senators in Andover on the first Monday of April, 1813. The material question, however, on which the cause must turn, is, whether he was an inhabitant of that town on that day, within the meaning of the constitution. One’s habitation is there said to be 11 where he dwelleth or hath his home.” Home is here synonymous with domicile, of which Vat-tel 
       gives the true definition: it is “ the habitation fixed in any place, with an intention of always staying there.”
    The plaintiff, on the first Monday of April, 1813, was a charity student in the theological institution or college at Andover, in the first of his three years’ studies, residing in chambers, as at a college, and boarding in commons. He was, in fact, an undergraduate there ; as it appears that the students in divinity are, at the end of three years, “ entitled to a license to preach,” in the nature of a degree in all such institutions, as, for instance, in the colleges instituted in England by the dissenters, and that they are allowed to continue their residence there afterwards. These licensed preachers most resemble resident graduates at a university; while the plaintiff was in a class similar to the undergraduates of a university, who have never yet claimed a right to vote for senators in the town where the university is situate, nor have they any right by our con stitution so to vote.
    This Court has given a solemn opinion,  that the votes for senators, &c., must be given in at a town-meeting, and that this .meeting must be an assembly of town inhabitants. Town inhabit-
    
      ants are those who have their homes in the town, and who are liable to town duties, as to be taxed, enrolled in the militia, placed on jury lists, chosen into town offices, &c., if of a proper [ * 496 j age, and not specially exempted ; * and, on the other hand, entitled to town privileges, as generally to vote in town affairs, to receive support from the town in case they become paupers, and to all such favorable exemptions from burdens on persons or property as may exist in the town; — to all which duties and privileges undergraduates, and generally resident graduates in a college, are perfect strangers. They are no more known as town inhabitants in the place where the college happens to be placed, than a ship’s crew from Salem are known as inhabitants of Boston, while on shipboard in the harbor of the latter place. The plaintiff and his fellow-students have taken no concern in the affairs of the town ; and but one besides himself has ever claimed a right to vote for senators in Andover. What species of town inhabitants are those who have no concern in the affairs of the tow-n, who claim no privileges, and perform no duties ?
    The students at the seminary in Andover are there for a mere temporary purpose — to acquire a theological education; and they are not in that time permitted to preach, or to exercise the employment they intend afterwards to pursue. They are in nothing different from students at a college — mere learners and scholars, following their studies with a view to obtain licenses to preach, which answer to diplomas given at other colleges.
    Not one essential circumstance, that constitutes a man’s home or domicile, appertains to those students. In the language of Vattel, they have no “ intention of always staying there,” no intention of fixing there for life, or for a livelihood, to be there in sickness and in health, or to become partakers in the duties or privileges of the town. On the contrary, as far as men residing within the limits of a town can be strangers, they are perfectly so. Many cases might be cited to show that it is a man’s intentions as to his future settlement, and not his mere existence in a place, that constitutes such place his home or domicile. In Granby vs. Amherst, 
       it was decided that Emmons’s residing four years at Dartmouth [ * 497 ] College, in the usual * course, had no effect whatever upon his legal settlement; although he came of age several months before he was graduated, and had no father living while he resided at that college ; but that he retained his home in Belchertown, and acquired no home in the town where the college is situated; and for a very obvious reason, — he never contemplated a home there, where he was merely for the temporary purpose of a liberal education.
    So, in the case of Kilham vs. Ward & Al., 
       the Court went upon the ground that Kilham had never lost his home or domicile in Salem ; although he had joined the family of an Englishman, went with that family to Newfoundland, and there lived in the same family from May, 1775, to August, 1779, was there married, and wrought constantly at his trade more than four years. The reason of the decision was, that Kilham, had all along an intention to return to Salem when he could with safety, and had never any settled “ intentions of always staying in Newfoundland.”
    In the case of Abington vs. Boston, 
       it was decided that Seymour, the pauper, gained a settlement in Barnstable by a year’s residence, without warning, before April, 1767, although it was clear that he had never actually lived in the town six months. The decision must have been, therefore, on the ground that, when he, a sailor, went from Boston to Barnstable, in 1763, he intended to make his home in Barnstable, and generally expected to spend his days there: it was only on this ground that the time he was at sea could be reckoned, to make up. his year’s residence on shore in the town, as it evidently was.
    In all these cases, it is clear that the intention alone made the difference. Emmons had no home at Dartmouth College, although he resided there four years; Kilham had none in Newfoundland, although there constantly more than four years; because each of them intended his residence to be temporary, and for temporary purposes. But Seymour must have been viewed as acquiring a home in Barnstable *as soon as he removed [ *498 ] thither, because the evidence was that he intended to make his permanent abode or home there.
    Suppose a man fixed for years with his family on his own estate in A. Here clearly he has his home or domicile. But he sells his estate, purchases one in B, removes to it with his family and fixes on it, expecting to pass the remainder of his life there. There can be no doubt that, the first day he thus fixes himself and family in B, he has his home or domicile there to every intent. But if he retain his estate in A, leaves his family there, and purchases no estate in B, but goes thither and resides there for months or years for pur poses merely temporary, he has no home or domicile there.
    An objection may be suggested, that our hired laborers, coming into a town just before our April elections, under an engagement for a few months’ service, have been admitted to vote for senators &c. To this it may be answered, — 1. That it is very questionable whether their home is in such a town, within the meaning of our constitution ; for if a home is thus to be acquired by an intended residence of six months, it may be by one of two months, or even less. Where the purpose is clearly temporary, a few weeks, more or less, can make no difference as to the principle. 2. The practice alluded to is of evil consequence; as it enables a man to vote for a governor, &c., in several states in the same year; since the times of election vary exceedingly in different states. 3. But admit that men of this description have a right to vote, as, in fact, they are often permitted to do; this cannot much affect the plaintiff’s case, which is widely different from that of these hired laborers. Each of these immediately joins a family, becomes a member of it, and an indweller in a private domicile in the town ; he joins in the active business of the town, is immediately liable to be taxed, and to do other town duties, and becomes entitled to town privileges. . The very reverse of all this is true as to [ *499 ] these students in Andover. They are *in no family or private domicile, and have no connection at all with the affairs of the town. They live in a public building, the property of the corporation, inhabited in separate apartments, and the house neither of the students nor of the officers.
    The argument for the defendants thus far has applied to the students at Andover generally. It is said, for the plaintiff, that he has ceased to be a member of his father’s family at Danvers since August, 1809. But it appears that he voted and paid taxes in Salem until April, 1812; and the fair inference is, that he there acquired a home, as students at law may for various reasons. They generally become active town inhabitants, are generally taxed, enrolled in the militia, &c., mix with the citizens, and are in no manner separated or distinguished from them..
    But it is not for the defendants to show where the plaintiff has his home. It is sufficient for them to satisfy the Court that his residence in Andover was not such as to make him an inhabitant there, within the meaning of the constitution.
    The plaintiff’s having been graduated at Dartmouth College is by no means incompatible with his being in the situation of an undergraduate in another institution, pursuing a different course of studies^ and for other and higher purposes.
    At the following March term in Suffolk the opinion of the Court was pronounced for the plaintiff upon the facts in the case, and judgment was ordered to be entered upon the verdict as of this tej.n.
    
      
       4 Mass. Rep. 493, Springfield vs. Wilbraham.
      
    
    
      
       3 D. & E. 355.
    
    
      
       6 D. & E. 247.
    
    
      
       Book 2, c. 19, § 219
    
    
      
       3 Mass. Rep. 571.
    
    
      
       7 Mass. Rep. 1.
    
    
      
       2 Mass. Rep. 236.
    
    
      
       4 Mass. Rep. 312.
    
   Parker, J.

The plaintiff, being a citizen of the commonwealth; more than twenty-one years of age, and of competent property, is without doubt entitled to vote somewhere within the state for state officers.

By the facts reported in this case, it is manifest that Andover or Danvers is the place where the plaintiff has his home, within the true intent of the constitution. Although he was born in Danvers, and that is still the domicile *of his father, yet [ * 500 ] he was of an age to emancipate himself, and obtain a home in some other town. He went to Andover, and had resided there a few days short of a year, previous to the election in April, 1813. A year’s residence was not necessary to entitle him to vote in that town; it was sufficient that he made that his home. He had left his father’s family several years before, and had become a resident in Salem, where he was taxed and permitted to vote. His father had ceased to support him since the year 1809, before which time he was also of age ; and he was at Salem, preparing himself for an independent living, until the spring of 1812, when he removed to Andover, to pursue his theological studies there, which, as he was on the charitable foundation, required a residence of three years.

Was Andover, then, his dwelling-place or home ? This is the question now to be solved. It is manifest that Danvers was not; for he had abandoned it, and did not keep up his connection with his father’s family, as was the case of Emmons in Granby vs. Amherst, cited in the argument. He could not vote in Danvers, for his home was not there. He must, then, have a right to vote in Andover, or be subjected to a temporary disfranchisement, in consequence of his having no home in any place.

The objection most insisted on by the counsel for the defendants is, that the plaintiff did not go to Andover with an intention to remain there; but merely for the purpose of instruction, and therefore that he could not exercise any of his civil privileges within that town; although it was admitted that a mechanic or day-laborer, otherwise qualified, making Andover his home, by residing and dwell iug there, would be a legal voter there.

A residence at a college or other seminary, for the purpose ol instruction, would not confer a right to vote in the town where such an institution exists, if the student had not severed himself from his father’s control, but resorted to his house as a home, and continued under his direction and management. But such residence will give a right to vote * to a citizen not under [ * 501 j pupilage, notwithstanding it may not be his expectation to remain there forever.

The definition of domicile, as cited from Vattel by the counsel fot the defendants, is too strict, if taken literally, to govern m a ques tion of this sort; and, if adopted here, might deprive a large portion of the citizens of their right of suffrage. He describes a person’s domicile as the habitation fixed in any place, with an intention of alivays staying there. In this new and enterprising country, it is doubtful whether one half of the young men, at the time of their emancipation, fix themselves in any town with an intention of always staying there. They settle in a place by way of experiment, to see whether it will suit their views of business and advancement in life; and with an intention of removing to some more advantageous position if they should be disappointed. Nevertheless, they have their home in their chosen abode while they remain. Probably the meaning of Vattel is, that the habitation fixed in any place, without any present intention of removing therefrom, is the domicile. At least, this definition is better suited to the circumstances of this country.

But several cases have been cited from our own reports, which are supposed to be analogous to the case at bar, in which the settlement of paupers has been decided upon more strict principles than are now suggested. The case of Granby vs. Amherst is the strongest ; and it is manifest that there is nothing, even in that case, which contradicts the principles now advanced. The pauper there left Belchertown and went to Dartmouth College, merely for the purpose of education. He was under age while at college, until a few months before he was graduated. He passed all his vacations in Belchertoiun, he liad a freehold there, and he returned to that place as soon as he had taken his degree. It was very properly held that, under these circumstances, he had not changed his domicile by going to Dartmouth College, and remaining there four years.

But the decisions of settlement cases cannot have [*502] much * influence on questions of political privileged. In the former cases, there is a conflict between two corporations on a subject of property; and they must be determined strictly according to the established rule's of property. The objects intended to be secured by the constitutional limitation of the right of suffrage to the town in which the voter has his home, were opportunity to ascertain the qualifications of the voter, and the prevention of fraud upon the public by multiplying the votes of the same person. The plaintiff had lived long enough in Andover to give the selectmen the means of scrutinizing his claims; and there was no other place where he could have a pretence for voting.

Further, a citizen may well have his home in one town, with all the privileges of an inhabitant, and yet have his legal settlement in another town! For instance, if he should reside four years in a town, own and occupy real property there, gain a livelihood there for himself and his-family, without any intention of removing, he might, notwithstanding, be removed to the place of his lawful settlement, in case he should become chargeable. But it would be'hard to say he had no home there, that he did not dwell there, and therefore that he should not be permitted to vote there.

We are all of opinion that the plaintiff’s case is well made out, and that judgment must be entered on the verdict.

ADDITIONAL NOTE.

[See Harvard College vs. Gore, 5 Pick. 370. — Holyoke vs. Haskins, 5 Pick. 29 Jennison vs. Hapgood, 10 Pick. 77. — Green vs. Green, 11 Pick. 410.—F. H.]  