
    * The Inhabitants of Winchendon, Plaintiffs in Error, versus The Inhabitants of Hatfield.
    Before the revolution, the settlement of a slave always followed that of his master.
    Slaves were not within the statutes relating to the warning of persons in order to prevent their gaining a settlement; nor within the statute of 7 Geo. c. 3, which provides that no settlement shall be gained by residence.
    But when manumitted, they could acquire a settlement in their own right, and if they had resided a year in the town whgre they were manumitted, they could not then be warned out.
    This was a writ of error to the Court of Common Pleas for the county of Worcester, brought pursuant to the provisions of the statute of 1793, c. 59, § 11, to reverse a judgment rendered by that court in December, 1806, respecting the settlement of a pauper, upon an appeal from the adjudication of a justice of the peace for the same county. The record of the court below, as certified by the presiding judge, was as follows : —
    
      “ Worcester, ss. Court of Common Pleas, December, 1806.
    “ The town of Winchendon, in the county of Worcester, complainants against the town of Hatfield, in the county of Hampshire, before this court, by appeal from the adjudication of the Hon. Dwight Foster, Esq., one of the justices of the peace for said county, setting forth in their complaint, that Edom London, a negro man, now resident in said town of Winchendon, is poor and become chargeable to said town, and that the said town of Hatfield is the place of his lawful settlement, and praying that it may be so adjudged.
    “ The facts in the case, from the evidence before the court, are, that said Edom, in the year 1757, was the proper estate of one Samuel Bond, and then by him sold to William Williams, of Weston; that, some time in the year 1760, and after the decease of the said Williams, said Edom was set off as the estate of said Williams, to the wife of Oliver Partridge, of Hatfield, who was the daughter of said deceased, as part of her portion in said deceased’s estate, and then went to live with said Partridge, in said town of Hatfield, and continued his servant until the 2d day of October, A. D. 1767, at which time he was sold by said Partridge to John Ingersoll, Esq., of Westfield, in said county of Hampshire, and continued with him about three years; was then sold by said Ingersoll to John Me Cluster, of Longmeadow, lived with him a few weeks; was then sold by said John Me Cluster to Joshua Holcomb, of Simsbury, in Connecticut, and lived with him about four years; then was sold by said Holcomb * to William Bond, of Lincoln, [ * 124 ] and lived with him a short time; was then sold by said Bond to Thomas Cowdin, of Fitchburg, and lived with him three or four years ; was then sold by said Cowdin to Jonathan Stimson, of Winchendon; and the day following he absconded and enlisted in the eight months’ service in Cambridge, and before the expiration of the said eight months’ service, and in the year 1775, was sold by said Stimson to Thomas Sawyer, of Winchendon, with whom he lived some time; then he was sold by said Sawyer to Daniel Good-ridge, of the same Winchendon, in the month of July, 1776, with whom he lived about five weeks; then he enlisted into the three years’ service, and the said Goodridge received the whole of his bounty and part of his wages.”
    The Court of Common Pleas affirmed the judgment of the justice, and adjudged that the lawful settlement of the said Edom London was not in the town of Hatfield.
    
    Upon the general issue pleaded of in nullo est erratum, the cause was shortly spoken to, at the last September term in Worcester, by Upham for the plaintiffs in error, and F. Blalce for the defendants.
    
      Upham
    
    relied on the pauper’s residence in Hatfield more than a year prior to the year 1767, without being warned to depart pursuant to the laws then existing, whereby he gained a settlement in that town. Since the statute of 1767, no warning was necessary to prevent the acquiring a settlement, and the facts show no settlement gained since the pauper left Hatfield. He is, then, yet settled there, unless his being a slave makes a difference in the case, of which Upham was not aware.
    
      Blalce
    
    argued that paupers must derive their settlement in any town, so as to be a legal charge on such town, by force of some statute; and he supposed the plaintiffs in error relied on the provincial statute of 4 Will, and Mar. c. 13, <§> 9, which gave a settlement to any person sojourning in any town by the space of three months, not having been duly warned to depart therefrom. But it was declared by the proviso to that section that it was not to be understood of certain descriptions of persons, among which are enumerated “persons lawfully restrained in any town ” That this [* 125 ] description applied * to negroes holden in servitude, oi that slavery was recognized during the provincial gov ernment, was very clear from the statutes of 2 Anne, c. 2, which required the master of “ mulatto or negro slaves ” to give bond to indemnify the town previous to their manumission ; and this provision proves, too, that slaves, while they continued such, could gain no settlement. The statutes of 4 Anne, c. 6, imposing a duty on the importation of negroes, treats them as mere chattels.
    The statute of 4 W. and M. authorizes the removal of persons duly warned, and not departing the town within a certain limited time. But it could never be the intention of the legislature that slaves should be taken from the service of their masters. It follows, then, that they gained no settlement under that statute.
    The cause was continued nisi, and at this term Bigelow, of counsel for the plaintiffs in error, insisted that the exception in the statute of 4 W. and M. of “persons lawfully restrained in any town,” did not apply to slaves, but was analogous to the description immediately preceding, of persons committed to prison, and so applicable to persons committed to a workhouse, or house of correction, and there restrained by lawful process. But if slaves were comprehended in the phrase, yet the succeeding provision that the persons receiving and entertaining any such persons “ shall be the town’s security,” &c., implies a burden to which the town was liable, which necessarily presumes that the persons referred to might acquire a legal settlement. Indeed, to construe the proviso in the statute so as to exempt persons lawfully restrained, &c., from its operation, would make the act repugnant to itself; for it immediately proceeds to make a specific provision respecting such. The true construction then must be, that as to such persons, though they might acquire a settlement in the town by length of residence therein, according to the prior clause, yet the town should have a claim for indemnity upon certain individuals.
    In the statute of 13 Geo. 2, c. 1, there is a similar provision, wherein it is enacted, that individuals guilty of the neglect therein mentioned, shall be liable for the support of paupers in certain cases, and then follow these words: “and all such [ * 126 ] ^charges ” [viz., for the support of paupers] “ are, and ought to be, understood and accounted to have arisen to the town by reason of such neglect.” These words show that such paupers might acquire a settlement by residence, and that it was the primary duty of the town to relieve them, and to call on the • individual for reimbursement.
    If it were true that, because slaves could not be removed, they were therefore not liable to be warned, yet it will not follow, that by a fair construction of the statute of 4 W. and M. they would not gain a settlement by mere length of residence; for this would prove that they could not gain a settlement at all, which the defendants in error will not pretend.
    But further, by the principal clause in the act relating to this subject, it is the length of residence which confers the settlement, and the matter of warning to depart is inserted by way of exception. If, then, by an inference drawn from a provision in a subsequent clause, the necessity of such warning be suspended in a particular case, it only takes away an exception, and in such case the settlement will be acquired, whether the resident is warned to depart or not.
    The statute of 2 Anne, c. 2, cited on the other side, required the security, on the manumission of a slave, to be given to the town where the slave dwelt, and not where the master had his settlement; which shows conclusively that the residence of the slave gave him a claim to relief.
    As it cannot be denied that slaves could acquire a settlement by some means, so it is equally clear that this must generally have been done either by length of residence, or derivatively through their masters. But that they did not derive a settlement from their masters, may be argued from the inconveniences following necessarily from such a doctrine. If such had been the law, any person lawfully settled in a town, with slender means of support, or even himself maintained by the town, might acquire a property in old, infirm, or diseased slaves, whose maintenance would immediately become a legal charge on the town, and this whether the master resided in the place of his legal settlement or not. The first knowledge which the town could have of the mischief, would be after it was too late to apply a remedy. A principle which would have been * productive of so much mischief, ought [ * 127 ] not to be admitted, unless it was positively enforced by some statute. But no such statute is to be found, and a contrary principle seems necessarily implied by the statute of 2 Anne, before cited.
    No judicial determination is known to the plaintiffs in error, that a master communicated his own settlement to his slave by the mere act of purchase or ownership; and it is not easy to conceive that such a principle should exist, without being often called into operation in the courts.
    This pauper unquestionably acquired a settlement in Hatfield by residing there more than a year previous to the 10th of April, 1767 He never afterwards acquired a settlement elsewhere; not by residence, for the law in that respect was from that day repealed ; not by deriving one from his master, for the same statute expressly says, that no town shall be obliged to be at charge for the relief and support of any person, unless such person have obtained the approbation of the town for dwelling there. So that, even if it were admitted" that a slave could by law have acquired his master’s settlement derivatively before the passing of that act, it must be certain that he could not afterwards.
    Having, then, a settlement in Hatfield, in 1767, it must have continued until he acquired another; and no mode, applicable to the case of this pauper, having since existed, whereby he could acquire a new one, it follows that Hatfield was the place of his legal settlement at the time when the town of Winchendon incurred the expenses in his support, for the recovery of which the original suit was brought.
   The Court took time for advisement; and afterwards in this term their opinion was delivered as follows, by

Parsons, C. J.

Slavery was introduced into this country soon after its first settlement, and was tolerated until the ratification the present constitution. The slave was the property of his master, subject to his orders, and to reasonable correction for misbehavior, was transferable, like a chattel, by gift or sale, and was assets in the hands of his executor or administrator. If the master was guilty of a cruel or unreasonable castigation of his slave, he was liable to be punished for the breach of the peace ; and I believe the [*128] slave was * allowed to demand sureties of the peace against a violent and barbarous master, which generally caused a sale to another master. And the issue of the female slave, according to the maxim of the civil law, was the property of her master. Under these regulations, the treatment of slaves was in general mild and humane, and they suffered hardships not greater than hired servants.

Slaves were sometimes permitted to enjoy some privileges as a peculium, with the profits of which they were enabled to purchase their manumission, and liberty was frequently granted to a faithful slave, by the bounty of the master, sometimes in his life, but more commonly by his last will. Several negroes, born in this country, of imported slaves, demanded their freedom of their masters by suit at law, and obtained it by a judgment of court. The defence of the master was faintly made, for such was the temper of the times, that a restless, discontented slave was worth little; and when his freedom was obtained, in a course of legal proceedings, the master was not holden for his future support, if he became poor.

But in the first action involving the right of the master, which came before the Supreme Judicial Court, after the establishment of the constitution, the judges declared, that, by virtue of the first article of the declaration of rights, slavery in this state was no more. And afterwards, in an action by * the inhab- [ * 129 ] itants of Littleton, brought to recover the expenses of maintaining a negro, against Tuttle, his former reputed master, tried in Middlesex, October term, 1796, the Chief Justice, in directing the jury, slated, as the unanimous opinion of the Court, that a negro born in the state before the present constitution, was born free, although born of a female slave. It is, however, very certain that the general practice, and common usage, had been opposed to this opinion.'

From this brief view of the state and condition of a slave, it is manifest that the master was obliged to support him, and was entitled to all his services. The slave, therefore, could not acquire a settlement in his own right. But he might, through age or disease, become useless, when the property of a master, who was a pauper In this case, his maintenance would devolve on some town, and some settlement must be assigned to him, to designate the town subject to the burden. He had, consequently, a derivative settlement from his master, and whenever the master acquired a new settlement, it was accompanied by the settlement of the slave, who could not be separated from his master. In this respect, the condition of a slave resembled the connection of a wife with her husband, and of infant children with their father. He is obliged to maintain them, and they cannot be separated from him. Thus their settlement is derived from the husband and father.

A reasonable conclusion from these facts is, that slaves were not within the nintli and tenth sections of the statute of 4 W. and M., or the 12 and 13 Will. 3, c. 10, making the warning out of persons, within the year, necessary to prevent a settlement; nor within the statutes of 10 Geo. 2, c. 3, and 13 Geo. 2, c. 1, which direct every inhabitant of a town, receiving an inmate, boarder, or tenant, to give notice to the selectmen; and that slaves are not within the fourth section of the statute of 7 Geo. 3, c. 3; which provides that no settlement shall be gained by residence, as that section extends only to persons who were competent to gain a settlement by residence, if not warned out.

To this construction it is objected, that the statute of 2 Anne, c. 2, considers slaves as gaining a settlement by residence, [ * 130 ] * because a master of a manumitted slave must indemnify the town where he lives. The language of this statute is adapted to the cases which most frequently, if not always, happened. A practice was prevailing to manumit aged or infirm slaves, to relieve the master from the charge of supporting them. To prevent this practice, the act was passed. The design of it was, to hold the master answerable for the maintenance of the slave, if the manumission was without indemnity. As slaves were rarely, if ever, manumitted, until after a long course of service, probably it never happened that they acquired their liberty until after a year’s residence in the town in which they were manumitted. And when they became free, they might gain a settlement in their own- right, by a year’s residence, unless warned. The town wherein they were manumitted, was the proper town to be indemnified, for there only could they acquire a settlement against the will of the inhabitants, as, having lived there a year, they could not be the subject of warning.

The law must now be applied to the facts stated. The inhabitants of Winchendon allege that the pauper, Edom London, has his legal settlement in Hatfield.

It is stated that the pauper was once the slave of Oliver Partridge, living several years with him in Hatfield, where his master was settled. The pauper then acquired a derivative settlement in Hatfield. Afterwards, his master, Partridge, sold him to J. Ingersoll, Esq., an inhabitant of, and settled in Westfield. There he lived several years with his new master; and there he lost his settlement in Hatfield, by gaining a new derivative settlement in Westfield. As it is not stated that the pauper, at any time after-wards, again lived in Hatfield, either as a slave or freeman, it is unnecessary to pursue the cgse further. Having lost his settlement in Hatfield, and not having regained a new settlement the re, the defendants in error are not liable for his maintenance; and the judgment must be affirmed with costs. 
      
       Littleton vs. Tuttle.
      This was an action of assumpsit for 71. money expended by the plaintiffs for the support and maintenance of Jacob, alias Cato, a negro and a pauper.
      Upon the general issue pleaded, the following facts were proved to the jury. Cato's father, named Scipio, was reputed a negro slave when Cato was born, and, according to the then general usage and opinion, was the property of Jfuthan Chase, an inhabitant of Littleton. Cato’s mother, named Violet, was a negro in the same reputed condition, and supposed to be the property of Joseph Harwood. Scipio and Violet were lawfully married, and had issue Cato, born in Littleton, January 18th, 1773, and was then, in the general opinion, a slave, the property of the said Harwood, as the owner of his mother. Harwood, on the 17th of February, 1779, sold him to the defendant, who retained him in his service until he was 21 years old. He being then a cripple, and unable to labor, the defendant delivered him to the overseers of the poor of Little-ton. and left him with them, refusing to make any provision for him; whereupon the overseers expended the money in his maintenance, for which this action was brought.
      
        The Court stopped the defendant’s counsel from replying, and the Chief Justice charged the jury, as the unanimous opinion of the Court, that Cato, being born in this country, was born free; and that the defendant was not chargeable for his support after he was 21 years of age. And the jury found a verdict accordingly, without going off the stand
      
        Sullivan (Mtorney- General) for the plaintiffs.
      
        Bigelow for the defendant.
     