Article 1, Section 8, Clause 4 (Citizenship)
[Volume 2, Page 589]
Gardner v. Ward, reported in Kilham v. Ward2 Mass. 236, 244n.a 1806
This was an action of the case brought by H. Gardner against B. Ward, jun. I. Hathorne, A. Richardson, and I. Buffington, Selectmen of the town of Salem, for refusing to receive the plaintiff's vote for Representatives of the town, at a meeting held May 9th, A.D. 1803. At April term the following state of facts was agreed by the parties; and upon them the plaintiff's right to recover in this action was submitted to the court.
"The parties agreed that the plaintiff was born in Salem aforesaid, in the year of our Lord 1747, where he lived until May, 1775, following the business of a merchant, and then went with his family to Newfoundland, where he resided doing business as a merchant until August 1780, when with his family he went to St. Eustatia, and from thence to St. Christophers, where he purchased a vessel, in which he returned to Salem, in February, 1781. During his absence he left an attorney to transact his business in said Salem; and after his return, was owner of parts of several privateers, and engaged in privateering against British ships and vessels until the peace then next following. At the time he offered his vote, as supposed in the writ, his name stood on the list, prepared by the selectmen of Salem, as a legal voter in the choice of representatives.
It is further agreed that the proceedings in the probate office, copies of which are hereto annexed, relating to the person or estate of the said H. Gardner, are to be taken as part of the case: and that, during the said Gardner's residence in Newfoundland, he, at sundry times, lent money to American prisoners carried in there: and while at St. Eustatia, after its capture, Americans there lodged their effects with said Gardner, supposing them as safe as with any British subject, which he safely kept, and restored to the owners.
And if, on the above facts, the court shall be of the opinion that the plaintiff had a right to vote, then the defendants shall be defaulted, and the damages assessed by a jury; but if otherwise, then the plaintiff shall be nonsuit.
Theoph. Parsons for the plaintiff.
N. Dane for the defendants."
The proceedings in the probate office, referred to in the foregoing statement, were,
1st. A certificate from the committee of correspondence, &c. for the town of Salem, dated March 2d, 1779, stating that Mr. G. had absented himself from the town, and voluntarily gone to the enemy.
2d. An appointment by the judge of probate of David Felt as an agent for the estate of said G.
3d. A warrant of appraisement and a sworn inventory of the real and personal estate of Mr. G. returned by the agent.[Volume 2, Page 590]
This cause was argued at Salem, Nov. Term, 1804, by Parsons and Putman for the plaintiff, and the attorney general, Sullivan and Dane for the defendants, and at this term the following opinions were delivered by the judges present.
Sewall, J. [After a concise recital of the facts, and observing that some circumstances of Mr. G's conduct while abroad, had been introduced by the parties in their statement, which having no very apparent tendency upon the question finally submitted to the court, he should not advert to them, proceeded.]
The question is, generally whether H. Gardner, when his vote was rejected by the defendants, had the rights of a legal voter in the town of Salem, and a capacity to vote in the election of a representative? And this question, as explained in the argument we have heard upon it, depends altogether upon this enquiry, whether H. Gardner was at that time a citizen of the United States, or an alien.
For the defendants it has been argued, 1st. that the plaintiff was, according to the facts stated, an alien by birth, and never has acquired any qualification of citizenship within the U. S.--or 2dly. If by his birth he had that qualification, and might have retained it, yet by his absence in the manner represented, during a part of the revolutionary war, he incurred the disabilities of alienage consequent thereupon, or as the forfeiture and penalty annexed to the offence of absence, in the manner now charged upon him.
For the plaintiff it has been contended that, by his birth and residence, at the commencement of the revolution, and at the treaty of peace, he was a citizen of the U. S. and had never incurred the disabilities or forfeitures supposed by the defendants.
In pursuing this enquiry, it is important to determine, what were the rights of Mr. G., or in what state he must be considered in law, whether as a citizen or an alien, taking the question as not affected by any conduct of Mr. G. nor by any legislative act, appointing certain consequences to the conduct, with which he is now charged:
In determining this question, we are to be governed altogether by the principles of the common law: "and from whatever source these may have been derived, and in whatever form expressed, the substantial part of them is founded in reason and in the nature of government."
I take it then to be established, with a few exceptions not requiring our present notice, that a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance, which is claimed and enforced by the sovereign of his native land; and becomes reciprocally entitled to the protection of that sovereign and to the other rights and advantages, which are included in the term citizenship. The place of birth is coextensive with the dominions of the sovereignty, entitled to the duty of allegiance: and it has been held, that in the event of a partition of these dominions, under distinct sovereignties, the natives remain attached and retain their rights of citizenship, with each portion of the sovereignty; upon this principle, that the right of citizenship in the native soil, and according to the condition of the government at the time of birth is a natural right, not affected by the after changes in the sovereignty. These doctrines are to be found in the decisions upon Calvin's case reported by Lord Coke.
To apply these doctrines in the case before us, according to the political revolution in the sovereignty of Mr. G's native land: By his birth he had the rights of citizenship in every part of the dominions of the crown of Great Britain; and especially, in the event of a separation in that portion of them which immediately includes the domicil of his birth. The change of sovereignty there did not, by the course of the common law, divest him of the natural rights of a citizen in his native land. If he has lost or forfeited these rights, it must be by the laws and decrees of the sovereign, to whom he became more immediately a subject, or of whom, in the event of the revolution, he must claim his supposed rights.
This case, in my apprehension of it, must therefore be considered as depending altogether upon the statutes of the government of this state, and perhaps, in some degree, upon those compacts, in which this government is a party, made with the former sovereigns of this country.
The statute of Treason was first cited for the defendants: particularly the description of persons owing allegiance to this state. These are declared to be 1st. All persons abiding within this state, and deriving protection from the laws of the same. 2nd. Persons passing through or having a temporary residence therein, during the time of their residence.
It is remarkable, that in this description, persons born within the territory of the state, those who by the common law owe perpetual fealty and allegiance, are not specified, or are not distinguished from mere residents, and that of these, it is not only declared that "they owe allegiance," but also that "they are members of the state."
To give this statute any useful construction, it must be understood to speak, not only of those, who, at the moment when it was enacted, were abiding within the state; but of all who then had, or at any subsequent period should have their abode therein: all these persons are declared to be "members of this state," without any distinction of natives. Upon the ground of this statute it might be argued, contrary to the intention of those who cited it, that Mr. G., wherever his place of birth had been, if, during the complete operation of this statute, he had his abiding place within this state, became thereby a member of the state; that is, acquired a citizenship. For I know of no rule to be employed in distinguishing members of this state from citizens. This operation of the statute, to confer the rights of citizenship, must be limited to the period preceding the establishment of the constitution of government of the U. S. But in that period Mr. G. according to the state of facts, had his settled abode in his native place within this state, having returned thither in 1781, and there since continued to reside.
It has been argued, however, that whatever, by the common law, had been the privilege of a native, and it may now be said, whatever character any person, entirely a foreigner, might have acquired by the operation of the statute of Treason; yet Mr. G. by the operation of other statutes [Volume 2, Page 591] passed during the revolutionary war, was under a specific disqualification and disability, as a banished, proscribed, or excluded person. And this seems to be the ground ultimately relied upon by the defendants.
Several statutes, supposed to have this effect, have been cited and commented upon at the bar, viz.
1st. "An act to prevent the waste, destruction, and embezzlement of the goods or estates of such persons, who have left the same, and fled to our enemies for protection; and also for payment of their just debts out of their estates."
This act determines nothing, as to the condition or exclusion of the absentees; but only provides for an inventory of their effects, the appointment of an agent to preserve them from embezzlement, &c.
2d. "An act prescribing and establishing an oath of fidelity and allegiance."
This act is equally inconclusive respecting the present question; unless it should be agreed, that the disqualification, and incapacity of becoming a citizen are to be inferred from the power, of excluding certain absentees or persons who have left this state, from the oath of allegiance.
3d. "An act to prevent the return to this state of certain persons therein named and others, who have left this state or either of the United States, and joined the enemies thereof."
This act seems alike inapplicable to the case before us, unless perpetual alienage and incapacity may be inferred from the power of apprehending and transporting certain persons therein named, or having the character therein described. It is not pretended that Mr. G. was included by name in this last act, and whether by description, in this or the act last before cited, might be a question. But I forbear entering upon it, from this consideration. It does not appear in the state of facts, that Mr. G. was ever excluded from the oath of allegiance, according to the provision of the one, or was ever apprehended or transported, pursuant to the provisions of the other, of these two acts. The penalties thereby enacted, whatever may be their extent, have not therefore, attached upon him. It is further observable that this act of 1778 was repealed by the act of March 24, 1784, herein after noticed.
The defendants have appeared to rely more confidently upon the act passed in 1779, entitled, "An act to confiscate the estates of certain persons commonly called absentees." By this act, "every inhabitant of the late province, then state of Massachusetts, who had levied war, or conspired to levy war, &c. or who since April 19th, 1775, had withdrawn without the permission of the legislative or executive authority of one of the United States, from any of the said provinces or colonies, into parts or places under the acknowledged authority and dominion of the king of Great Britain, and who had not returned into some one of the United States, been received as a subject thereof, and, if required, taken an oath of allegiance to the United States, shall be deemed to have renounced all allegiance and to have become an alien."
It has been very earnestly and ingeniously argued for the plaintiff, that upon the facts stated, he is not to be considered as a person, who had committed either of the offences described in this act; that his absence from the United States, commencing in May, 1775, was for temporary purposes only; that this construction of it is determined by the circumstances stated, of vessels and other property left by him at Salem, of his conduct while abroad, and his return during the continuance of the war; that Newfoundland, the place to which Mr. G. first resorted, after he left Salem, though "beyond seas, and under the acknowledged dominion of Great Britain," was not in a state of hostility with the United States, when Mr. G. arrived there in 1775, but was one of the places excepted by Congress, at the commencement of the revolutionary war.
After a full consideration of the subject, I am not satisfied that this view of the case before us is correct; but I am inclined to the opinion, that Mr. G's absence, in the manner stated in this case, might have been construed a criminal withdrawing of himself, within the intent of the statute under consideration, subjecting him to the penalties thereby enacted, if, at his return within the United States, no other facts, than those now disclosed could have been offered to explain or justify his conduct. Newfoundland if not hostile when Mr. G. arrived there, became, at an early period afterwards, a place in open and declared hostility with the United States, and was a place of that description, while Mr. G. continued his residence there, without any effort, which now appears, for a removal therefrom. And he remained there in 1779 when this act passed. But in the application of it, now attempted, another question arises: whether a judgment of alienage, or for the purpose of inflicting the penalties prescribed by this statute, may be now rendered, in this incidental, and, (as to the trial of these facts and their consequences) extrajudicial manner.
This statute, severely penal, and (respecting the facts thereby declared criminal) altogether retrospective, provided a mode of proof to ascertain and convict the persons liable, and who had incurred the forfeitures and disabilities enacted against the offences therein described. The statute required that a complaint should be exhibited "against any person who had offended in the manner therein described, setting forth clearly and plainly the offence such person is charged with," &c.--that notice thereof should be given, and that any person might appear to defend in behalf of the party accused, that a trial should be had, "in the known and ordinary course of the law," and that judgment should be rendered upon the verdict of a jury finding the forfeiture, or, according to the provisions of a subsequent and additional act, upon a default or failure of any person to appear, after notice of the complaint in the manner therein directed.
At the return of Mr. G. to Salem in February, 1781, no information had been filed against him, and no judgment, to the purpose or effect of the statute now under consideration, has ever been rendered against him. In the present action then, upon any state of facts, not including the record of a conviction of Henry Gardner, can this court adjudge him to have incurred the disability contended for by the defendants, and essential to their defence? In this view of the question, I apprehend that courts of law can admit no other evidence of offences than regular convictions. [Volume 2, Page 592] The reasonableness of this maxim is an authority for it; but I shall cite Lord Coke's 2 Inst. 468. "It is to be understood in acts of parliament, where there be degrees of punishment to be inflicted upon the first, second and third offences, &c. there must be several convictions, that is to say judgments given upon legal proceeding for every several offence; for it appeareth to be no offence, until judgment, by proceeding of law, be given against him."
Upon the application of this statute to the case of Mr. G. it may be further observed, that the penalties of alienage and forfeiture are to be inflicted, not upon a person who had merely withdrawn himself; but to constitute the whole offence, it was requisite by the statute, that he should not have returned, and been received within some one of the United States. The statute has not limited the time of the return and reception, which might do away the crime of withdrawing. I therefore construe it to intend a return and reception before the time of the accusation, or the time to which in its nature it must relate. Upon this construction of the statute, the case of Mr. G. in any view of it, is not within the statute. For, before the accusation, first offered in defence of this action, or any time to which it can relate, that is before the close of the revolutionary war, Mr. G. had returned to Salem, his native place, and been there received. I infer his reception from the notoriety of his return and residence there, according to the facts stated, and from the consideration that the statutes for expelling and transporting obnoxious absentees, were then in full force and operation. The forbearance, in this respect, used on that occasion, affords a violent presumption, and is with me satisfactory evidence, that he had upon his return, a favorable reception. Hard indeed must be the case of a man, who, at his return within the country, had been forgiven, or had been able to explain and justify his absence, to be at this day, after a lapse of twenty years, exposed to the severities of this act, because perhaps the proofs of his defence, then satisfactory and tacitly allowed, are no longer in being.
The defendants cited lastly the act of 1784, entitled "An act for repealing two laws of this state, and for asserting the right of this free and sovereign commonwealth, to expel such aliens as may be dangerous to the peace and good order of government." This act passed after the return and reception of Mr. G. within the United States: after he had a settled abode at Salem within this state: after he had become a party on the American side in the war against Great-Britain: and, I may add, according to my construction of the act against treason, after he had become a member of the state, unless excluded by the operation of the statutes already considered. Without recurring therefore to the objection drawn from the constitution of this state, then in operation, which annuls every ex post facto law, it is sufficient to say, that this case of Mr. G. could not be within the intentions of the legislature in their act of 1784.
Upon the whole, understanding that, by the common law, a man owes allegiance to the sovereignty of the country wherein he was born, that he has a natural right, which the common law recognizes and preserves, to protection and citizenship from the actual sovereignty of his native country, under every revolution of it, until deprived by an express attainder, or until he shall have incurred a forfeiture of these privileges, upon a regular conviction and judgment of some offence liable thereto; that, in the case of Mr. G. it appears that he is a native of this state, and had his settled abode therein, during a part of the revolutionary war, and at the close of it by the definitive treaty with Great-Britain; and that he has never been attainted or convicted of any offence incurring the penalty of alienage, as a disability or exclusion; I conclude him to have been a citizen of this state, at the time his vote was refused by the defendants, and that this action, upon the statement of facts before us, is maintained, in vindication of the plaintiff's rights and capacity as a legal voter within the town of Salem.
It may be apprehended that, by the principles of the common law, cited on the subject of alienage, a mutual citizenship of all persons born before the separation of the two countries then under a common sovereign, continues to this day: and that, upon the construction and limited effect, which I have given to the absentee act, as it is called, all who were native inhabitants of this state, but who departed therefrom at the commencement of the revolutionary war, and have remained within the British dominions, are now citizens of the United States. Objections of some importance must be supposed to arise from these inconveniences, in a political view of the subject. But I think that, by recurring to the definitive treaty between the United States and Great Britain, at the close of the war, the apprehension I have suggested may be entirely removed. The definitive treaty established, in a legal sense, the distinct sovereignty of the United States, and their separation from the other dominions of the king of Great-Britain. His Britannic majesty thereby acknowledged the United States, formerly the British colonies, to be free, sovereign and independent, and relinquished all claims to the government, and proprietory and territorial rights of the same; and the peace, thereby established, was declared to be between the citizens of the one and the subjects of the other. This relinquishment on the part of Great-Britain, and the acceptance of it on the part of the people of the United States, determined their respective claims of allegiance and citizenship. By this compact and event, those natives of the British dominions, who were then settled within, and under the protection of the United States, not being excluded or disqualified, nominally or judicially, by the effect of any special statute or regulation within any state became citizens of the United States, and aliens to their former sovereign; while those, who continued settled within the territories of their former sovereign, and under his protection, adhering to their former allegiance, are, by the same compact, aliens from the new sovereignty recognized by the treaty.
It may not be impertinent however, in this discussion, to observe further, that the right of citizenship throughout the dominions of the native sovereign, which I have supposed to be a principle of the common law, is restored, in a limited degree, by the treaty of London, to British subjects and American citizens, who in respect to the titles and tenures of certain real estate, and the legal remedies incident thereto, are not to be regarded as aliens under either [Volume 2, Page 593] sovereignty; a regulation important to the welfare of individuals, in the event of a divided sovereignty, and dictated by the principles of natural justice.
Sedgwick, J. As this cause has been considered at great length, it has become unnecessary, and perhaps might be deemed improper in me to attend to it, in all the minute particulars. During the able argument which we have heard, I was strongly impressed with an opinion, that the decision must essentially depend on a just construction of the act of the 30th of April, 1779, and the treaty of peace made between the United States and Great Britain in 1783;--and this impression has been strengthened by farther reflection.
The act of April 30th, 1779, was passed before the adoption of the constitution, by a legislature possessing undefined powers, wholly unlimited and unrestrained, so far at least as respected the objects of that law. It is "an act for confiscating the estates of certain persons commonly called absentees." The great and leading object of the act is the confiscation of those estates; but it also determines, as was necessary, who are those absentees; and how they are to be considered in relation to the state, that is as aliens. The preamble asserts the right of every government to command the personal service of all its members, whenever the exigencies of the state shall require it; especially in times of impending or actual invasion; that no member can withdraw himself from the jurisdiction of the government, without justly incurring the forfeiture of all his property, rights and liberties holden under and derived from that constitution of government, to the support of which he hath refused to afford his aid and assistance. It then goes on to state the aggressions of the British government and the resistance of the United States, in which it was the indispensable duty of all to unite; and that nevertheless divers of the members of this, and of the other United States, regardless of their duty towards their country, did withdraw themselves from this and other of the United States into parts and places under the acknowledged authority and dominion of the king of Great Britain; after this preamble the first section enacts "that every inhabitant and member of the late province, now state of Massachusetts, or any other of the late provinces or colonies, now United States of America, who since the 19th of April, A. D. 1775, hath done the acts therein specified, and among them, withdrawn, without the permission of the legislature, or executive authority of this or some other of the said United States from any of the said provinces, colonies, or United States, into parts and places under the acknowledged authority and dominion of the said king of Great Britain, and who hath not returned into some one of the said United States, and been received as a subject, and, if required, taken an oath of allegiance, 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 facts agreed bring the plaintiff expressly within this section of the act. He was an inhabitant and member of the late province, then state of Massachusetts: for he was born at Salem and resided there until the time that he withdrew himself. That was after the 19th day of April, 1775, viz. in May in the same year. He then withdrew himself to Newfoundland, a place under the acknowledged authority of the king of Great Britain: at the time of the passing of the act, he had not returned into any of the United States and been received as a subject thereof. The consequence is irresistible that the facts bring this case within the act, and if they had been ascertained by a judgment, in the manner which the act provided, he must have been subjected to the consequences and considered as an alien. This act of 1779 was confirmed, if it was in the power of the legislature to confirm it, by the act passed on the 24th of March, 1784, for repealing two acts of 1778, on the subject of the absentees and for asserting the rights of the state to expel such aliens as may be dangerous to the peace and good order of government. This is most manifest from an attention to the preamble and the 2d and 3d sections. As then the facts, which are agreed, bring the plaintiff's case clearly within the act of 1779, it is important, in my opinion, to determine whether by the treaty of peace between the United States and Great-Britain, he is relieved from the consequences, which might have attached upon him, from the facts which are agreed--that is, to be considered thereby as an alien.
The case of the United States in their separation from Great-Britain, is altogether so singular in its nature; and its effects on the rights, duties and relations of those connected with it, so unprecedented, that very little, if any, light can be thrown upon it by recurrence to authorities. The inhabitants of the provinces, previous to the 4th of July, 1776, were the subjects of the king of Great-Britain; and the provinces themselves in some sense at least the colonies of Great-Britain--for it was conceded that the mother country possessed power of regulating their commerce. In consequence of various acts of Great-Britain, as well legislative as executive, which were by the colonies deemed grievous and oppressive, a war took place which was commenced on the 19th day of April, 1775. As to the justice of this war, various opinions were holden both in Great-Britain and America. No adjustment having been made, and the applications for that purpose on behalf of the colonies having been rejected; Congress, on the 4th of July, 1776, declared them Independent States, and this declaration having been approved and ratified by them respectively, it has ever since been holden in this country that from that time we were of right, as well as in fact, independent states, and entitled to exercise all the rights of sovereignty. In consequence of this claim the states respectively assumed and exercised the rights of sovereignty, and among other things entered with each other into "articles of confederation and perpetual union"--whereby they gave to their representatives in Congress various powers, and among others those of peace, of war and of treaties. Such powers would be of little avail; they could not answer the purposes for which they were intended, unless they were paramount to and controuled the laws of the individual states. By virtue of these powers, Congress, on the 30th of November, 1782, through the medium of their plenipotentiaries, entered into certain provisional articles of peace with Great-Britain, which were of the same tenor as the articles of the definitive treaty, which was concluded on the 3d day of September, 1783. Both these treaties [Volume 2, Page 594] have been duly ratified by the governments of the two countries respectively. It has already been said that treaties to effect the purposes for which they are designed, must control all the laws of the states, which are opposed to their stipulations. This is evident from the nature of the thing: but the constitution of the United States has not left the establishment of this principle to construction, having expressly provided "that all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding;" so that if there be any opposition between the treaty and the law, the former must prevail, and the latter, so far as that opposition exists, is repealed. And it cannot be necessary to prove that if the original act of 1779 is repealed, the confirmatory one of 1784 is wholly inoperative. A war existing between two countries united under one sovereign, a mother country and its colonies, they having assumed the character of independent states, is terminated by a peace. The treaty is between the king of the mother country and the states, and between the subjects of the one and the citizens of the other. The plaintiff is a party to this treaty, his rights and interests are involved in it, either as a subject of the king of Great Britain or as a citizen of the United States. Soon after the commencement of hostilities, the next month, being settled as a merchant at Salem, the place of his nativity, he removed with his family to Newfoundland, from one British colony to another. He did not however abandon all connection with Salem; he left there an attorney to transact his business. At Newfoundland he did the business of a merchant. It is not stated, nor even pretended that he performed a single act of hostility, and we ought not to presume, without evidence, so harsh a thing, as that he warred against his native country; and especially as disfranchisement is contended for as the consequence of his conduct. De non apparentibus et non existentibus eadem est ratio. It is of the highest importance for the security of the rights of individuals to respect this maxim.--What then are we to conclude from the facts agreed between the parties? That the plaintiff during his absence from his native place, was innocent in all things, excepting only that he deprived his country of his personal services during the time of his absence. The case does not stop here. In August, 1780, he left Newfoundland and went to the West-Indies, and in February 1781, one year and nine months before the provisional articles of peace were executed, and two years and seven months before the definitive treaty was concluded, he returned to Salem. And on his return, he entered actively into the war on the part of his country. He was the owner of several parts of privateers, and engaged in privateering against the enemy, and this line of conduct he continued until the peace. He left the country animo revertendi, with an intention to return; this is evinced by his having an attorney to transact his business at Salem, by his conduct while absent, by his returning during the war, and by his engaging actively in it, on his return--in his absence he is perfectly innocent of every thing active against the United States. He returned and immediately joined his country in active hostility against the enemy. He was received in his native town without reproach and without question. He was there domiciled at the time of the treaty, and there has ever since remained. And shall it now be said that he was not then a citizen, an inhabitant? That he was not of that party with which he was, but of that with which he was not, acting. The treaty on the part of Great-Britain stipulates "for and with the people," the "inhabitants," the "citizens" of the United States. By these several names are they called in the treaty. And it does seem to me that the facts disclosed show that he was at the time of the treaty one of the people, a citizen of the United States, and an inhabitant of Salem, there having his domicil. There is nothing which shews he was then a subject of Great-Britain. He was then, as has been said, either a subject of the British king, or an American citizen: from the facts, as before observed, it is most clear that he must have been one or the other: and if from the part he was acting, and the business he was then engaged in, the place of his domicil and the manner in which he there employed himself, he could not be considered as a British subject, he was of course a citizen of the United States. Suppose then that the plaintiff's going to Newfoundland was an offence for which he might have suffered but for the treaty: yet having previous to the treaty, reunited himself to, and taken part with his countrymen, and it being impossible to consider him at that time, as one with, and for whom the United States were contracting as a British subject, he is entitled as a citizen of the United States to the benefit of that stipulation in the treaty, that he should suffer no future loss or damage either in his person, liberty or property, for the part which he took in the war, and yet the defendants, in their defence, insist that he shall suffer a loss for the part which he did take in the war, the most mortifying and degrading to a generous mind, that of disfranchisement.
Besides the liberal stipulation for the indemnity of all, who had taken a part on either side, to do justice, must be perfectly reciprocal and mutual--that is, wherever it is an indemnity to an American citizen, in any given circumstances, it must be an indemnity also to a British subject. It has already been observed that we, the United States, claimed a right to independence from the time we declared it, on the 4th of July 1776. On the other hand, Great Britain claimed a supremacy until they gave us independence by the treaty. Till then, she holds that we were her colonies, and that then, and by her act, we became sovereign and independent.--As it respects a vast variety of subjects which might, but which were unnecessary to be mentioned, the American construction is undoubtedly correct, but as respects the construction immediately under consideration, it would I think be extremely erroneous. As to the separation of people into two distinct and independent communities, I think the settled situation and circumstances of individuals at the time of the treaty, ought to determine their relation, and the party to which in future they are to belong. During the war there was a great shifting and fluctuation of opinion and conduct. Men chose sides and changed them, as a sense of interest or a feeling of conscience dictated. Nicely to discriminate and to retribute, as individuals might happen to be within the power of the respective divisions of country, would have been unwise, [Volume 2, Page 595] mischievous and cruel. It was infinitely more liberal to cast the mantle of oblivion over the past, and to settle men, as they by their last opinions and conduct had settled themselves, and to give them their own choice as to their future connection, as they were then declaring it by their own conduct. This spirit of conciliation, which, on the return of the blessings of peace, ought to prevail, dictated the terms of the treaty. A contrary decision could produce no good, and it could hardly fail of producing great mischief. Suppose we continue to maintain the treaty of peace, and notwithstanding that any person who withdrew himself and voluntarily went to a place under the acknowledged dominion of the king of Great-Britain, after the commencement of hostilities, whatever his future conduct might have been and although he might for years have been actively employed against the enemy, and at the time of the peace was engaged in our armies, had by his delinquency, without any prosecution, trial or judgment, ipso facto, become and must continue an alien. What would in this case become of reciprocity? Great-Britain, until the peace, considered all who were in arms, as equally rebels. She must therefore consider the character of subject or citizen as determined by their situation, circumstances and the part they were acting at that time. Take another case--suppose we go back to the declaration of Independence to determine citizenship. A man leaves his country after that declaration, as was the case with many. He joins the British army, and continues to serve in it to the close of the war. Is he an American citizen? If so, and a future war should happen between the United States and Great-Britain, and the man should be taken, he must be considered as a traitor and punishable for rebellion. Here again there could be no reciprocity, for the principles adopted by the British government would not permit her to retaliate in a case similarly circumstanced in relation to itself.
I am, on the whole, clearly of opinion that judgment must be given for the plaintiff.
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