
    John S. Williams versus Calvin Whiting and Others.
    An elector of a representative in Congress must have had his home one full year previous to the election in the town where he would vote.
    This was an action of the case against the defendants, as selectmen of the town of Dedham, for unlawfully refusing to permit the plaintiff to give in his vote for a representative in the Congress of the United States, for the district of Norfolk, at a town meeting holden for. that purpose on the 2d day of November, 1812. 
       The declaration contained two counts; in the first of which the plaintiff alleges his residence in Dedham for one year preceding the said election, and an undue rejection of his vote by the defendants, and their refusal to place his name on the list of qualified voters The second count contains the same gravamen, and an averment that the plaintiff was a qualified voter within the said district.
    The action was submitted to the decision of the Court upon an agreed statement of facts, in substance as follows: The defendants were the selectmen of Dedham, duly qualified, and, at the time alleged by the plaintiff, they duly warned * a meet- [ * 425 ] ing of the inhabitants of Dedham, qualified to vote for representatives in the General Court of this commonwealth, to be holden on the 2d day of November, 1812, to give in their votes for a representative of the district of Norfolk in the thirteenth Congress of the United States. The said meeting was accordingly held, and the defendants presided thereat, and undertook to regulate the same, and to receive the votes to be given in. On the same day the plaintiff requested the defendants to place his name on the list of qualified voters of said town of Dedham; and also requested them to receive his vote for such representative, and offered his vote to them at the said meeting. But the defendants refused to place his name on the said list, and to receive his said vote, or to permit him to vote at the said meeting.
    The plaintiff is a native citizen of this commonwealth, and has always continued to be a citizen thereof; and on the said 2d day of November was of the age of twenty-one years and upwards, and was then possessed of property of a greater value than two hundred dollars. On the 28th of October, 1811, the plaintiff was resident in Roxbury, within the said district of Norfolk, being a householder, and having a family there. Previously to the day last mentioned, he had been appointed, commissioned, and qualified, as clerk of the judicial courts in the county of Norfolk; and on that day he came to Dedham for the purpose of performing the duties of his said office, and took possession of the apartments of the court-house assigned for the use of the clerk of the judicial courts. His family and household establishment remained in Roxbury until the 12th of November in the same year, when he removed his family to Dedham. From the said 28th of October, to the said 12th of November, he boarded at a public house in Dedham, and during the first week of the said time be lodged there three nights. On the 29th of October he contracted for a house in Dedham, which he was to rent and occupy from the said 12th of November. On Friday evening, November 1, he returned to his family in Roxbury, where he continued until Monday, * the 4th [ * 426 ] of the same month. On this last-mentioned day he contracted at Roxbury for a horse and chaise to go to Dedham daily, and return to Roxbury at night; which he used accordingly on the 4th, 5th, 6th, and 8th days of November, having been unexpectedly detained at Dedham the night of the 6th. From the evening of the 8th to the 12th of November, he did not return to Dedham. From the said 28th of October to the said 12th of November, he had his washing and other domestic services performed in his family at Roxbury.
    
    On the 24th of June, 1812, the plaintiff was superseded in his said office of clerk, and immédiately after opened an office in Roxbury as an attorney and solicitor, advertising in the public papers that he had there resumed his professional business. From the said 24th of June to the 12th of November following, his family remained in Dedham, he frequently ‘going to Roxbury, and returning to Dedham at night. During this term, being a justice of the peace for the county of Norfolk, he had, with his knowledge and consent, writs made returnable before him at his office in Roxbury, where he officiated as a justice, entering up judgments and issuing executions.
    If, upon these facts, the Court should be of opinion that the plaintiff was entitled to recover, his damages were to be assessed by a jury, and judgment be rendered accordingly ; but if the opinion of the Court should be that he was not entitled to recover, he was to become nonsuit, and the defendants have judgment for their costs.
    
      Metcalf, for the plaintiff.
    Two questions arise from the facts stated. The first, Did the plaintiff reside in Dedham one year next preceding the election in November, 1812 ? The second, Was such residence necessary, to entitle him to vote ?
    The constitution of the United States requires that the electors of representatives to Congress “ shall, in each state, have the qualifications requisite for electors of the most numerous [ * 427 ] branch of the state legislature.” The constitution * of this commonwealth provides that“ Every male person, being twenty-one years of age, and resident in any particular town in this commonwealth for the space of one year next preceding, having a freehold, &c., shall have a right to vote in the choice of a representative or representatives for the said town.”
    As to the first question, it is conceded that the word resident is synonymous with inhabitant in the state constitution. “ And, to remove all doubts concerning the word inhabitant in this constitution,” it is declared that “ Every person shall be considered as an inhabitant, for the purpose of electing, &c., in that town, district, or plantation, where he dwelleth or hath his home.” Did the plaintiff dwell or have his home in Dedham one year next preceding the 2d day of November, 1812 ?
    It is obvious that home means something more than the place where one’s person or effects are. Perhaps it may be safely said that a man’s home is the place where he is voluntarily situate, with an intention of permanently remaining. That the question of domicile is determined by the intention of the party, appears from numerous settlement cases. In the case of the United States vs. The Penelope, 
       Judge Peters instructed the jury, and said it had always been his instruction, and that no exception had ever been taken to it, that “ An inhabitant or resident is a person coming into a place with an intention to establish his domicile or permanent residence, and in consequence actually residing; under this intention he takes a house or lodgings as one fixed and stationary, and opens a store, or takes any step preparatory to business, or in execution of this settled intention. The time is not so essential as the intent executed, by making or beginning the actual establishment, though it is abandoned in a shorter or longer period.”
    In this case, no room is left for doubt respecting the plaintiff’s intentions, at the time of his removal to Dedham. His office and his duty required him to be in that town; and * he is precisely within the rule laid, down by Judge [ * 428 ] Peters. His occasional absence may reasonably be supposed to have been for the purpose of removing his family, and may fairly be brought within the decision in the case of Granby vs. Amherst. 
      
    
    If it is objected that the defendants had not the means of know ing the plaintiff’s intentions, we answer, that, in this instance, they were not called upon to prejudge, as those intentions had been carried into effect before the plaintiff offered his vote.
    If it be said that this is a question of fact, we answer that, if the Court, on evidence of the facts agreed, would have directed a jury to find for the plaintiff, they will now find no difficulty in applying the law.
    In considering the second question, it is presumed the Court will take a more liberal and extended view of the constitution than is permitted in giving a construction to statutes. It is not to be supposed that the constitution, either of the United States or of Massachusetts, contains any provisions entirely arbitrary. In statutes the reverse is often true.
    The ground taken for the plaintiff is this, — that, having resided in the election district of Norfolk a year next preceding the election in November, 1812, and at that time residing in Dedham, he was constitutionally entitled to vote in that town at that election.
    The convention that framed the constitution of the United States probably had in view property and age only, as “ qualifica tians ” of an elector. This presumption is strengthened by the want of any assignable reason why a year’s residence in any particular town should be required to entitle an elector to vote for a representative in Congress. Why does the state constitution require a residence of a year next preceding the election of a representative to the General Court? undoubtedly that the elector may gain an acquaintance with the circumstances of the town, and the persons most fit to represent it. [Curia. May not another [ * 429 ] reason * be, that the selectmen of the town might have some knowledge of the voter, and of his qualifications as such ?] There would seem to be the same reason that selectmen should have opportunity to ascertain the qualifications of a new inhabitant, who offers his vote for governor, lieutenant-governor, and senators; yet no probationary residence is necessary to entitle a man to vote for these officers. The presumption, then, is, that the reason first given is the true and only reason.
    The candidates for governor, &c., are supposed to be equally known to all the electors. There is also no discretion allowed them, whether these officers shall be chosen. The same is true of representatives to Congress. But towns may vote not to choose representatives in the state legislature.
    What possible advantage can be conceived to accrue to the plaintiff from residing in Dedham for a year prior to the election ? He cannot be supposed to have needed information from his neighbors in that town respecting the comparative merits of the two candidates held up, both of whom, in the present case, lived in the town from which he had recently removed, and in which he and they had always resided.
    The plaintiff’s construction is further confirmed by the silence, on this point, in the debates in the several conventions which ratified the constitution of the United States. Many who assisted to frame it, on both sides of the question, were members of the conventions which were called in the several states to discuss and adopt it. And although every objection, which faction or timidity could suggest, was urged against the adoption of that instrument, yet we nowhere find the unreasonableness of the provision, on which the defendants rely, once mentioned. The thousand frivolous objections which were raised, and the number and sagacity of the anti-federal party, who were on no point more vigilant than on that relative to elections, prove that no solid, or even plausible, objections could have been overlooked, and [ * 430 ] * that the construction for which the defendants must contend never occurred to the framers of the constitution, nor to those who were chosen to deliberate upon its adoption
    
      The same inference may be drawn from the silence, on this point, of the writers of The Federalist, who met and canvassed every objection to the constitution which reached their ears or occurred to their minds.
    What, then, is the ground on which the defendants rely ? It will be said, — the language of the two constitutions which has been cited. But it will be observed that, in order to vote for a repre sentative in the state legislature, an elector must be “ a resident in some particular town in this commonwealth,” as well as have the qualifications of age and property. A strict construction of this provision, in connection with the clause before cited from the constitution of the United States, will exclude the inhabitants of districts and plantations from voting in the choice of representatives to Congress — a construction for which no man will contend. The fair and liberal interpretation of the word “ town,” in the state con stitution, is representative district. Such has ever been the practical construction, and it has received the sanction of this Court.  Districts are by law, in many instances, annexed to towns, for the purpose of a joint choice of representatives. But this is not within the letter of the constitution.
    That the strict construction, for which the defendants must contend, was never contemplated by the legislature, is evident from three several acts for dividing the commonwealth into districts for the choice of representatives in Congress.  In all these statutes, districts and plantations are recognized -as entitled to vote for representatives in Congress; and the assessors, where there are no selectmen, are empowered to preside at the meetings, to receive, count, sort, declare, and return the votes. Too much deference ought not generally to be paid to legislative constructions of constitutional or statutory provisions. But this long and uninterrupted * practical construction seems entitled to [ *431 ] consideration. It may be added, that, in these turbulent times, when the election of representatives in Congress must often have been decided by the votes of the inhabitants of districts and plantations, such elections would have been contested, and the question brought up in Congress, had their constituents, or any of the wisest of them, suspected that such inhabitants could not constitutionally vote.
    The reasonableness of the plaintiff’s construction is further supported by the 4th section of the 1 st article of the constitution of the United States: “ The times, places, and manner, of holding elec tians for senators and representatives shall be prescribed in each state, by the legislature thereof; but the Congress may, at any time, alter such regulations, except as to the place of choosing senators.” There is no constitutional necessity that representatives to Congress should be chosen in town meetings. But in the case of state officers, the constitution has confined the choice to town meetings, and made the selectmen presiding officers. Congress, or even the state legislature, may direct that meetings for the choice of representatives to Congress shall be by counties, and that the sheriffs shall preside and receive the votes. Indeed, it was objected to the above clause in the constitution, in the convention of this- state, that it empowered Congress to call electors from one extremity of the state to vote at the other extremity. In such case, or even in that of county meetings, which are held in many of the states, what propriety would there be in requiring a year’s residence in a particular town for one year next preceding the election, provided the elector had resided within the district a year? Or suppose representatives to Congress were elected here, as in Connecticut and New Hampshire, by a general ticket; was it the design of those who framed the constitution that a voter should lose his privilege by removing a mile from his former residence, if he happened, in such removal, to cross the line of the town ? Or suppose [ * 432 ] this state, like Delaware formerly, were entitled *to but one representative in Congress; would a removal from one part of the state to another temporarily disfranchise an elector ?
    The reason of the provision in the state constitution does not apply in the case at bar; and by fair analogy, the plaintiff, having resided more than a year prior to the 2d of November, 1812, within the district which the member chosen was to represent, and residing at that time in Dedham, was entitled to his vote in that town.
    
      Bigelow and Chickering for the defendants.
    The argument was had at the last October term in this county, and the cause being continued to this term under advisement, the opinion of the Court was now pronounced by
    
      
      
         Vide Lincoln vs. Hapgood, ante, 350, and note.
    
    
      
       2 Peters's Adm. Decis. 450. — 1 Binney's R. 351, note
    
    
      
       7 Mass. Rep. 1.
    
    
      
       3 Mass. Rep. 571.
    
    
      
      
        Stat. 1794, c. 24. —1802, c. 76, and 1811, c. 145.
    
   Parker, C. J.

The only qualification to entitle the plaintiff to vote in Dedham when his vote was rejected by the defendants, which is disputed, is his residence in that town for one year next preceding the election. He had before lived at Roxlury, within the same congressional district; and the question is, whether he had been domiciled in Dedham one year immediately preceding the election. He had unquestionably a right to vote, provided he had been so domiciled.

On the 28th of October, in the preceding year, he received an appointment, which rendered it convenient, if not necessary, for him to dwell in Dedham; and he then began to prepare for his removal. From that time until the 12th of November, he passed almost every day to Dedham, where he transacted his business, and returned to his family each night except three, on which he slept at Dedham rather by accident than design. He had also, on the 29th of October, engaged a house in Dedham; but he was not to occupy it until the 12th of November, on which day he removed his family, and became domiciled in Dedham.

We are of opinion that, under these circumstances, he remained an inhabitant of Roxbury until the day of his removal with his family: and there can be no doubt that he * might legally have exercised any of his municipal [ * 433 ] privileges there up to that time. It follows that he did not begin to be an inhabitant of Dedham until after the 2d" day of November, 1811; and as the election at. which he tendered his vote was on the 2d day of November, 1812, he was not then entitled to vote, in consequence of having been an inhabitant of that town for one year next preceding the election.

But another ground was assumed by his counsel, and very ingeniously maintained in argument, upon which it was expected to support this action, viz., that, being a resident within the congressional district for which the election was holden, and being other wise duly qualified, he had a right to vote in any town within that district. And the Court were, for some time, strongly inclined to this opinion. But a due consideration of the constitution and the laws relative to this subject, and the consequences of establishing a right to vote in any other town than that of which the voter is an inhabitant, has induced us to change our opinion.

It is true, as suggested by the counsel, that some of the reasons lor confining the electors of representatives in our General Court to towns do not exist in the case of electors for a member of Congress. But the qualifications of electors are settled by the constitutions of the United States and of this commonwealth ; and there is no power, while those constitutions remain, to add to or diminish from those qualifications.

By the constitution of the United States, the electors of a representative in Congress are to have the qualifications requisite for electors of the most numerous branch of the state legislature ; and by the constitution of this state, one of the qualifications for an elector of a representative is a residence in the town where he gives his vote for the space of one year next preceding an election. We do not suppose that an uninterrupted residence is required of a person who has his home in any particular town for occasional absences, for pleasure, health, or business, may happen to many inhabitants of a town in the course of a year; and [ * 434 ] * it was not intended that such absences should deprive them of their right to vote, But it is necessary that, for the space of a year, the voter should have had his home in the town where he claims to exercise this privilege; and a person removing from one town to another does not acquire a right to participate in the choice of a representative of his adopted town, until he has made it his home for the space of a year before his election.

Whether a citizen, removing into a neighboring town with his family, with an evident intention to change his residence, retains the right of voting in the town he has left, until he has acquired it in the town to which he has removed, is a question not now before "us. If he does not, volenti non Jit injuria; and if the election is deemed by him of sufficient importance, he can always choose his time for removal so as not to lose his right.

It has been argued that our legislature have given a different construction of this constitutional provision, by extending the powers and duties of selectmen of towns, with respect to these elections, to the assessors of unincorporated plantations, which have not a right, by the constitution of the state, to elect representatives in the state legislature; and this, it is said, is practically admitting that every qualification to vote for a state representative is not necessary to entitle one to vote for a member of Congress. It is true that, in this respect, persons may be considered as allowed by the legislature to vote for members of Congress who are not permitted to vote for state représentatives. We apprehend, however, that there is no provision in any statute, authorizing persons to vote in any other than their own town or plantation. The inhabitants of plantations, too, may be considered as qualified to choose representatives, if they, together with the other qualifications, have that of residence. It is because the community to which they belong has not arrived at the enjoyment of corporate powers in this particular that a representative cannot be sent, not because the inhabitants are not personally qualified. [ * 435 ] * But supposing that the legislature has the right to make a distinction between the personal and local qualifications of an elector, and to determine that the constitution of the United States requires only that the personal qualifications of -he electors shall be the same with those of the electors of the popular branch of the state government; still some act of the legislature is requisite, to authorize the selectmen. of any town to receive the votes of any person not an inhabitant.

By standing laws, towns are required to have correct lists of the qualified voters belonging to the town, and the selectmen are bound to govern themselves by those lists. How could they proceed at an election, if they were bound to examine the qualifications and receive the votes of multitudes, who might present themselves at the polls from distant towns in the same district ?

Perhaps the legislature might provide, by law, that all the votes for the district of Norfolk should be given in to the selectmen of Dedham, or of any other town in the district. But this would be so manifestly inconvenient, both to the selectmen and the electors, that we cannot suppose the provision existing, unless we find a clear and positive statute to that effect.

Upon full consideration of this subject, we do not think, if we had the power of changing the constitution, we should attempt it in this instance. If electors were not limited, in the exercise of their privilege, to some particular space, great abuses might be practised by going from town to town, and multiplying the vote of an individual in districts where the towns are contiguous, and where they hold their meetings at different hours of the day. Besides, as there are qualifications of property which are with difficulty ascertained, we believe that the residence of a voter within a corporation for a year will enable the officers who regulate the elections to judge more correctly than if they were obliged to receive the votes of strangers, who may have lived but a few days within their observation.

* Upon the whole, we are satisfied that the defend- [ * 436 ] ants have done no wrong to the plaintiff in the instance complained of; and according to the agreement of the parties, the plaintiff must be called,

Plaintiff nonsuit, 
      
      
         Commonwealth vs. Walker, 4 Mass. Rep. 556.—Abington vs. Boston, 4 Mass. Rep. 312.— Granby vs. Amherst, 7 Mass. Rep. 1.— Cutts & Al. vs. Haskins, 9 Mass. Rep. 543. — Lincoln vs. Hapgood & Al. post, 350. — Sachet’s case, 1 Mass. Rep. 58. — Harvard College vs. Gore, 5 Pick. 370.
     
      
       See Cambridge vs. Charlestown, 13 Mass. Rep. 501. — U. States vs. The Penelope, 2 P. Adm. Decis. 438.
     