Article 1, Section 8, Clause 4 (Citizenship)

[Volume 2, Page 596]

Document 20

Case of Phipps, reported in Cummington v. Springfield

2 Pick. 394, 394n. Mass. 1824

The opinion alluded to, which was written by the Chief Justice and concurred in by Putnam and Wilde, Justices, was as follows.

Considering that the same question may arise in controversies respecting property between private litigating parties, we have entertained doubts of the propriety of giving an opinion without the aid of argument by counsel, who might present views to us of importance in the consideration of the subject; but understanding that the public business is embarrassed by the pendency of many applications before the committee on accounts, which depend upon a solution of this question, we have deemed it our duty to [Volume 2, Page 597] yield to the request of the honorable Senate, with the understanding, that if hereafter the rights of suitors shall require a revision of the subject, we shall feel obliged to grant them a hearing, and that the opinion now given will not be binding, if it shall be made to appear that it is incorrect.

The facts stated for our consideration, are, that George Phipps, now a pauper, was born in England, and came to this country as a soldier in the British army, under the command of General Burgoyne, that he deserted to the Americans, and has ever since resided in the town of C., within this commonwealth, that he has acquired and held real estate within that town, and has paid taxes therefor, and also for his poll and personal estate. The question presented is, whether by virtue of the treaty of peace in 1783, he is a citizen of the United States, or is still an alien.

We suppose if he were not a citizen before the treaty, he did not become such by the mere force of that instrument. The treaty operated as a relinquishment on the part of Great Britain, of the allegiance claimed by that government from all who had before been the subjects of it, and had by force of the laws of any one of the United States become its citizens or subjects. But it could not confer the rights of citizens upon any who had not before enjoyed them. Thus in the cases of Gardner v. Ward and Kilham v. Ward, reported in the second volume of Massachusetts Reports, it was decided that persons born in Massachusetts before the revolution, who had withdrawn to a British Province during the war, and had returned before the ratification of the treaty of peace, retained their citizenship, notwithstanding their absence while hostilities continued; while the same persons, had they remained in the British province until after the treaty, would have been British subjects, because they had chosen to continue their former allegiance, there being but one allegiance before the revolution, and that being to the sovereign of Great Britain. It was considered that Massachusetts had rightfully assumed the rank of a sovereign and independent state, and that she lawfully succeeded to the right of self-government, the sovereignty being in the people as a body politic. All, therefore, who were born within her limits, and who had not been expatriated voluntarily, or by compulsion, had a right to claim the protection of her laws, and owed allegiance to her as their sovereign; but a British subject not born within Massachusetts, would not have become a citizen, from the mere fact that he was here on the ratification of the treaty of peace.

But there are other facts from which, connected with the treaty, citizenship may be deduced in favor of persons born without the territory of Massachusetts.

After the declaration of independence, by Congress, in 1776, each one of the then colonies, parties thereto, became separate and independent states, or sovereignties, with the perfect right of enacting their own laws, and of declaring the terms and principles upon which the duty of allegiance and the right of protection should depend.

Among the earliest exercises of sovereign power by Massachusetts, was that by which the character of a citizen was ascertained, and his duties in relation to the State were prescribed.

The statute of treason, as it is called, was passed in the year 1777, [2 Mass. Laws, (edit. 1801,) 1046,] and it enacts, "that all persons, abiding within the State, and deriving protection from the laws of the same, owe allegiance to this State, and are members thereof." It is not required by this statute, that persons thus constituted members of the State, should be born within its territory, it being undoubtedly intended to comprehend within the political family, all persons of whatever country, who should be voluntarily dwelling within the State, making it their home.

If the statute was prospective, and we think it clearly was, it being the policy of the times to invite into the State those who might be able to contribute in their persons and property to maintain its liberty and independence, then the case of the pauper who has given rise to the question, is clearly within its provisions.

The case of prisoners of war would not be embraced by the statute, because their residence was constrained, and indicated no affection towards the country, or its cause. But one who deserted from the army, and voluntarily took up his residence in one of our towns, demeaning himself as a subject and citizen, is such a one as the State chose to adopt as a member, and to whom it offered protection in exchange for allegiance.

The subject of the present inquiry must have left the British army very soon after the passing of the statute before cited, and may be presumed to have accepted the invitation contained in it, to become a member of the State.

He has practically enjoyed all the privileges, and submitted to all the duties of a citizen, for forty-five years. He was with us at the adoption of the constitution of the State, and of the United States, and also when the treaty of peace between the United States and Great Britain was ratified. Probably his citizenship has never been called in question until he became a pauper.

We therefore are of opinion that George Phipps, who is mentioned in the order of the Senate to which this is an answer, is a citizen of Massachusetts, and of the United States.

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Volume 2, Article 1, Section 8, Clause 4 (Citizenship), Document 20
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