
    The Inhabitants of Manchester versus the Inhabitants of Boston.
    
      A., a citizen of the colony of Connecticut, in the year 1759 removed to the province of Nova Scotia, carrying with him B., his infant son. In 1797, B. removed from Nova Scotia to Manchester in this state, where he purchased real estate, wliich he occupied for more than ten years, paying all the taxes assessed upon it. It was holden that he was an alien, and therefore acquired no settlement in Manchester.
    
    Assumpsit for money expended in the support of Jane Burge' and her children, alleged to be paupers, and to have a legal settlement in Boston.
    
    The action was submitted to the opinion of the Court, upon the following facts agreed by the parties. David Bulges (father of 
      Amasa B., the husband of the pauper Jane B.), was born in the state [then colony] of Connecticut, and in the year 1759 his father removed to Nova Scotia; and the said David, then about two years of age, was carried thither with his father’s family. The said Amasa was born in Nova Scotia in the year 1780. In 1797, the said David ' removed from Nova Scotia to Manchester, the said Amasa removing with him, as a member of his family. The next year Amasa, being then 18 years of age, left'the family of his father, with his consent, and went to Boston * for the purpose of going a [ * 231 ] voyage to India, and was absent from Manchester seven years, following the occupation of a mariner. On the third of April, 1804, he married Jane, daughter of Thomas Ur an, who was an inhabitant of, and legally settled in Boston. She was born in Boston in 1784, and at the time of her said marriage was the widow of one Wilson, who was an alien. The said Amasa returned to Manchester in 1805, and resided there, with his wife and children, pursuing his occupation as a mariner, until his death in 1816. He possessed no real estate, but paid a poll tax more than five years in Manchester. In the year 1802, David, Burges purchased real estate in Manchester of the value of 350 dollars, which he occupied until his death in 1816; and he paid all taxes that were assessed upon it. Notice from the plaintiffs to the defendants, that the said Jane and her children had become chargeable, and the denial of their settlement in Boston, were duly and seasonably made. Judgment upon default or nonsuit was to be entered, as the opinion of the Court should be, on the question whether the legal settlement of the said Jane and her children was in Boston, at the time the expense was incurred by the plaintiffs, viz. in April, 1816.
    
      Saltonstall, for the plaintiffs.
    
      Jane Burges, having been born of parents legally settled in Boston, and having acquired no settlement by her first marriage, she and her children have still a settlement in Boston, unless they have a derivative settlement in Manchester, under her last husband, Amasa Burges. He was born in a foreign country, a subject of the king of Great Britain, to whom he owed allegiance, and was never naturalized. He might, at any time, have returned lo Nova Scotia, or any part of the British empire, and enjoyed all the rights of a British subject. He comes within the definition of an alien, as settled from the time of Calvin’s case 
      . “An alien is a subject born out of the ligeance of the king, and under the hgeance of another.” He did not derive a settlement in Manchester from his father David B., who * was also an [ * 232 ] alien after the treaty of peace, and was never a citizen of the United States. David was removed from the territory of the United States at the age of two years, and voluntarily continued a British subject.
    
      Thatcher, for the defendants.
    It will not be disputed that Amasa B. acquired a legal settlement in Manchester, if he was originally a citizen of any one of the United States. His father was a citizen of Connecticut by birth, and he never lost his settlement. He was carried to Nova Scotia in his infancy, before he could exercise any volition. He never relinquished his intention of returning to the United States: he never joined their enemies, nor did any act incurring the forfeiture of his citizenship, nor was he proscribed by the laws of Connecticut or of the United States. On the contrary, he returned to this his native country, purchased an estate, and was permitted to enjoy it without question until his death . Having been during his absence entitled to the rights of a citizen legally settled in Connecticut, his son Amasa, born during that period, inherited the same rights from him, and afterwards acquired a legal settlement in Manchester 
      .
    
      Saltonstall, in reply. Amasa Burges was not originally a citizen of the United States. He was .born out of the country, after the declaration of independence. He did not derive a settlement from his father, because he was never lawfully settled in Manchester, or a citizen of. the United States. David Burges continued voluntarily under the allegiance of the king of Great Britain, until after the treaty of peace. He is completely within the principle of the cases of Kilham vs. Ward & Al. 
      
      , and Gardner vs. Same 
      . He elected to adhere to the king, and was virtually included in the treaty on h\s part. He was then domiciled in Nova Scotia, and it does not appear that he had any intention of coming to the United States. He was twenty years of age at the peace, and did not leave Nova Scotia until fourteen years after. He did not elect within a reasonable time to return, and claim his right as a citi- [ * 233 ] zen. * The principle settled in the two cases last referred to is, that those persons, who left this territory, and voluntarily remained in other parts of the king’s dominions at the treaty of peace, were his subjects. The voluntary situation at that period determined their future relation; and allegiance cannot, at the same time, be due to two sovereigns.
    
      
       7 Co. 31
    
    
      
       9 Mass. Rep. 454. Ainslie vs. Martin. —2 Cranch, 280. —4 Cranch, 208.
    
    
      
      
        Vatel, lib. 1. § 212. 215. —Stat. U. S. 7 Cong. 1 Sess. c. 28, § 4. —Swift’s System c. 9 —6 Cranch, 176. —Kirby’s Rep. 407.—Bac. Abr. Tit. Aliens, A.
    
    
      
       2 Mass. Rep. 236.
    
    
      
      
         Ibid. 244. note.
      
    
   Parker, C. J.,

delivered the opinion of the Court. .The question in this case is, whether Jane Burges, the pauper, and her children, have a derivative settlement in the town of Manchester, under her late husband, Amasa Burges.

Her proper settlement prior to her marriage was in Boston, she having been born of parents who were legally settled in that town. She acquired no new settlement by her first marriage, her husband being confessedly an alien. Had then Amasa B., her second husband, a settlement in Manchester ?

He could have none in his own right; for he was born in Nova Scotia, within the dominions of the king of Great Britain, and so. by the principles of the common law, was a subject of that king, and owed perpetual allegiance to him.

But it is said that his father was a citizen of the United States, and so was capable of gaining a settlement in Massachusetts; and that, having lived in Manchester, and paid taxes there long enough to gain a settlement under the statute of 1793, c. 34, he became settled in that town, and communicated his settlement to his son Amasa, who removed with him as one of his family from Nova Scotia, being then a minor.

We are then to inquire, whether David B., the father, was ever lawfully settled in Manchester. He was born in Connecticut before the year 1759; at which time a colonial or provincial government subsisted there, and all the inhabitants were subjects cr the king of Great Britain. The father of David in that year removed to Nova Scotia, * and carried his son, then about [ * 234 j two years old, with him as part of his family. David remained there until the year 1797, when he removed to Manchester ; so that, being born under allegiance to the king, he voluntarily continued that allegiance during the whole revolutionary war, and until long after the treaty of peace, which established the final separation between the two countries.

Under these circumstances' he cannot be said ever to have been a citizen of the state of Connecticut; for he appears never to have been within that jurisdiction, after the rights of sovereignty were assumed there. According to the cases of Kilhamvs. Ward Of Al., and Gardner vs. Same, his voluntary residence, at the time of the ratification of the treaty, within the territories of Great Britain, determined his allegiance.

The case of Ainslie vs. Martin has been cited, as establishing a different doctrine. But it does not appear to be applicable to the case before us. The question here is, whether David Burges was a citizen of the United States, by reason of his having been born within the territory of Connecticut. It has not been shown to us, that the law of Connecticut, in this respect, is similar to that laid down in the case cited; and it is the law of Connecticut which must determine whether David Burg s was a citizen of that state, merely on account of his birth there.

But there may also be a distinction, arising from the different in tent and view, with which the citizenship was to be applied in the two cases. In the case of Ainslie vs. Martin, recovery of land was the object. The tenant undertook to prove that the demandant was an alien; and he was obliged to do this according to the strict principles of the common law. But in the cases of Gardner KiTham vs. Ward Al., the question related to the exercise of political rghts and power; and the principle adopted was, 1 hat the inhabitants of this country, born under the allegiance of the king of Great Britain, remained his subjects, if. they removed within his territo- [ * 235 ] ries, and continued * there voluntarily until after the treaty of peace was ratified, with intention' to remain there. The doctrine of these cases is suitable to be applied to the case before us; for it is the civil and political relations of the citizens, and their municipal connections, on which is founded their settle ment in any town.

Conformably to this principle, it is very clear that David Burges, if he ever was a citizen of Connecticut, ceased to be such on the ratification of the treaty, and could not therefore obtain a settle ment in Massachusetts, never having been a citizen thereof.

This view of the case makes it unnecessary to consider the effect of the statute of the United States, which was referred to in the argument. But it may be well to suggest the construction which that statute would probably have received, if it had been necessary to consider it. The fourth section provides that the children of all such persons, as now are or have been citizens of the United States, shall be citizens, whether born within the United States or not. Without doubt, the object of congress, in making this provision, was to naturalize the children of actual citizens, who might be born abroad ; wl ether their parents were living or not, at the time of passing the act. It cannot be a fair construction, to make it apply to the case of all who had been born within the territory of any particular state, and who had quitted that territory for another country long before any sovereignty existed. The term, citizens of the United States, must be understood to intend those who were citizens of a state, as such, after the union had commenced, and the several states had assumed their sovereignties. Before that period there was no citizen of the United States; and it may be reasonably doubted, whethei this section can refer to any citizenship, but such as existed accord ing to the laws of the states, at the time of the adoption of the con etilution of the United States.

* By the construction contended for by the counsel for [ * 236 ] the defendants, we do not see but that all the children of all the refugees and conspirators, although remaining in Nova Scotia or elsewhere, must be citizens of the United. States; and consequently supported as paupers, if they should come to reside within (his state .

Defendants defaulted. 
      
      
        [Ainslie vs. Martin, 9 Mass. 154. —Martin vs. Woods, 9 Mass. 377. —Cummington vs. Springfield., 2 Pick. 394. —Auchmuty vs. Mulcaster, 5 B. & Cr. 775. Bright’s Lessee vs. Rochester, 7 Wheat. 535. —Thomas vs. Acklam, 2 B. & Cr. 779. —Kilham vs. Ward, 2 Mass. 268. —Ed.]
     