Kilham v. Ward

A person who left this country after the commencement of the revolutionary war, went to, and resided in, the British territories for several years, and returned to the United States before the treaty of peace, is a citizen, and not an alien. The Absentee Act of April 30, 1779, operates no disqualification upon a person who was not prosecuted and convicted under it

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 Wtnham, 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 wiih his wife, and some property, in a British armed ship, lor St. F.ustatia, in order to obtain a passage from thence to Massachusetts. On his passage he refused * to fight [ * 237 j against Americans; and the officers of the ship, upon rhscovering his intentions of returning to his country, retained the property lie 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 evi dence 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 thé 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. [ * 238 J * 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 withm 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. (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, (2) and in Lord Bacon’s argument respecting the postnati. (3) And the cases of the inhabitants of Normandy, Gascoigne, 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 Prerogativá Regis (4) took away the right. (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 *t.hat he has been naturalized, the only means by which [ * 239 j his citizenship could be effected must have been by the operation of the Declaration of Independence, or of the treaty ot peace. In consequence of the Declaration of Independence, the old gov ernment 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. (6) All persons, therefore, who were then within the JJnitea 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, anima 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 Dec laration 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, (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 ; [ *240 ] but that their conduct * 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 (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, (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 ] 9th 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 oj 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. * It [*241 ] 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 if 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 wddow shall be allowed her dower, and debts be paid by the committee appointed to administer the estate. (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, [ *242 ] under the statute, against real estate. * 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 prerogative! 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, (1,) 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 [*243] shown, such as villenage, nonage, * 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 Britisl 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 tc prevent future confiscations and prosecutions, and not to annu. those already definitively adjudged. It could neither create nor take away citizenship. It prevented future disabilities, but did no cancel those already established. But, at all events, this action could not be maintained against the original defendants without proving that they acted corrwptly 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 * fairly, [ * 244 ] and without malice, he ought to be protected, and the law has wisely so adjudged. (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 govern ment 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.) (a) * In that case, it was argued for the defendants, that tí. 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 \x,t,) he ought to be considered as an alien. It was [ * 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.