Mellen C. J.
delivered the opinion of the Court, as follows. The counsel for the plaintiffs rests his cause on four distinct grounds : and if either of them be substantial the settlement of the pauper and her children must be adjudged to be in the town of Gardiner.
The four grounds are these :
1. That Hazard, the slave, was manumitted by Dr. Gardiner, his master; and thus being free, and residing in a place called Gardinerstown in the year 1779, when that plantation was incorporated into a town by the name of Pittston, he gained a legal settlement in Pittston :—that there was a division of Pittston in the year 1803, and that part of the town on the west side of Kennebec river was incorporated by the name of Gardiner ; and as Hazard lived on the west part of Pittston, his daughter Lucy, the mother of the pauper Harriet became legally settled in Gardiner.
2. That if Hazard were not manumitted as before supposed, the result would be the same, because his marriage with Cooper Loring was void.
3. That if the marriage be not void, Cooper, the wife, residing in Pittston at the time of its incorporation in 1779, gained a settlement there in her own right; and that from her Lucy the daughter, and Harriet the grand-daughter have derived their settlements.
4. That if the marriage be not void, and if Cooper, the wife of Hazard, did not gain a settlement in Pittston by residence. [99]*99as above supposed, still, her daughter Lracy though then a minor of only ten years of age, gained a settlement by her residence in Pittston at the time of its incorporation ; and that her settlement is communicated to the pauper Harriet and to her children.
As to the first point, we do not perceive any facts which shew that Dr. Gardiner ever did, or intended to emancipate his slave. He was placed at Gardinerstown under the command of his master ; was in part supported by him; and was left under the care of an agent, who was directed to require the services of the slave. In this situation he remained when Dr. Gardiner himself went to Europe. There can be no ground therefore., for presuming an emancipation.
But no manumission of a slave, however express and formal, could be availing, unless a bond of indemnity were given, according to the provisions of the Provincial Stat. 2 Ann. c. 2. Ancient Charters, app. ch. xvii. As no such bond of indemnity was given by Dr. Gardiner in the case of Hazard, the plaintiffs’ first ground is not maintained.
As to the second pointthough it is said in the case of Ando-ver v. Canton that slaves have no civil rights, except that of protection from cruelty, and can make no contracts for the acquisition or disposal of property without their masters’ consent; still, they have, or at that time had the capacity to make the marriage contract: as minors have, though they are not bound, generally by their other contracts. And lest masters should, from improper motives, undertake to control their slaves in the article of marriage, it is provided by the Provincial Stat. 4 Ann. c. 6. cited by the defendants’ counsel, that “ no master shall “ unreasonably deny marriage to his negro with one of the “ same nation, any law, usage, or custom to the contrary not- “ withstanding.” We can perceive no reason, therefore, for pronouncing the marriage void.
The third point is of more importance. Could the wife of a slave gain a settlement by residence in a town with her husband at the time of its incorporation, though her husband could not; he being the slave of a master living, and having his settlement, in another town ; and of course being settled in the same town with his master ?
[100]*100In the case of Shirley v. Watertown, 3 Mass. 322. it was cle-cided that a wife could not gain a settlement separate from her husband ; and of course that a warning of the husband only, prevented his wife and child from gaining a settlement. In that case all the persons were free; and the plaintiffs’ counsel contends that a distinction between that case and the present arises from that circumstance.
It is true it seems to be settled that a slave can neither acquire nor communicate a settlement, like a freeman. But still, if the wife of a slave could gain a settlement in her own right, without her husband, it might lead to a separation of the husband and wife, as effectually as if the wife of a free man could gain a settlement distinct and separate from her husband; which, it is admitted cannot be done. In both cases the settlement of the husband might be in one town and that of the wife in another. The- free husband could gain a settlement himself and the master of the slave husband would gain or retain one for him. Now as the reason assigned by the Court in the case of Shirley v. Watertown, why a wife cannot have a settlement separate from her husband, is, that it would lead to a separation of husband and wife ; and the same reason exists with equal force in the present case ; wc consider the law in both cases to be the same. Therefore the wife of Hazard could not and did not gain a settlement in her own right, by her residence with her husband in the town of Piltston at the time of its incorporation.
The last point for consideration is, whether Lucy, the daughter of Hazard, being about ten years old, and residing with her parents in Piltston at the time of its incorporation, did, in virtue of that circumstance, gain a settlement in that town.
If a minor of ten years of age could gain a settlement in such circumstances, the youngest infant could, upon the same principle; because, so long as they remain a part of the family of their parents, there can be no difference with respect to the power of gaining a settlement, bcUveen an infant of one year old and one of twenty years. The same principle applies to children under these circumstances, as to a wife; they cannot have a settlement distinct from their father, nor she from her husband. The reason of the law is the same in both cases ; and both these principles are recognized and settled in the case of Shirley v. Watertown.
[101]*101It is true, the language of the second section of Stat. 1793. c. 34. in the ninth mode of gaining a settlement, is general. “ All “persons, citizens as aforesaid, dwelling and having their homes “ in any unincorporated place, at the time when the same shall “ be incorporated into a town or district, shall thereby gain a “ legal settlement therein.” And in the cases of Bath v. Bowdoin, 4 Mass. 452. and Buckfield v. Gorham, 6 Mass. 445. the Court decided that such incorporation had the same effect before the Statute just mentioned. But notwithstanding the generality of the language—“ all persons'’—the clause must be understood with such limitations as the legislature must have intended ;—and they seem to have intended that all persons legally capable of gaining a settlement in any other mode, should, ipso facto, gain one in the method mentioned in that
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Mellen C. J.
delivered the opinion of the Court, as follows. The counsel for the plaintiffs rests his cause on four distinct grounds : and if either of them be substantial the settlement of the pauper and her children must be adjudged to be in the town of Gardiner.
The four grounds are these :
1. That Hazard, the slave, was manumitted by Dr. Gardiner, his master; and thus being free, and residing in a place called Gardinerstown in the year 1779, when that plantation was incorporated into a town by the name of Pittston, he gained a legal settlement in Pittston :—that there was a division of Pittston in the year 1803, and that part of the town on the west side of Kennebec river was incorporated by the name of Gardiner ; and as Hazard lived on the west part of Pittston, his daughter Lucy, the mother of the pauper Harriet became legally settled in Gardiner.
2. That if Hazard were not manumitted as before supposed, the result would be the same, because his marriage with Cooper Loring was void.
3. That if the marriage be not void, Cooper, the wife, residing in Pittston at the time of its incorporation in 1779, gained a settlement there in her own right; and that from her Lucy the daughter, and Harriet the grand-daughter have derived their settlements.
4. That if the marriage be not void, and if Cooper, the wife of Hazard, did not gain a settlement in Pittston by residence. [99]*99as above supposed, still, her daughter Lracy though then a minor of only ten years of age, gained a settlement by her residence in Pittston at the time of its incorporation ; and that her settlement is communicated to the pauper Harriet and to her children.
As to the first point, we do not perceive any facts which shew that Dr. Gardiner ever did, or intended to emancipate his slave. He was placed at Gardinerstown under the command of his master ; was in part supported by him; and was left under the care of an agent, who was directed to require the services of the slave. In this situation he remained when Dr. Gardiner himself went to Europe. There can be no ground therefore., for presuming an emancipation.
But no manumission of a slave, however express and formal, could be availing, unless a bond of indemnity were given, according to the provisions of the Provincial Stat. 2 Ann. c. 2. Ancient Charters, app. ch. xvii. As no such bond of indemnity was given by Dr. Gardiner in the case of Hazard, the plaintiffs’ first ground is not maintained.
As to the second pointthough it is said in the case of Ando-ver v. Canton that slaves have no civil rights, except that of protection from cruelty, and can make no contracts for the acquisition or disposal of property without their masters’ consent; still, they have, or at that time had the capacity to make the marriage contract: as minors have, though they are not bound, generally by their other contracts. And lest masters should, from improper motives, undertake to control their slaves in the article of marriage, it is provided by the Provincial Stat. 4 Ann. c. 6. cited by the defendants’ counsel, that “ no master shall “ unreasonably deny marriage to his negro with one of the “ same nation, any law, usage, or custom to the contrary not- “ withstanding.” We can perceive no reason, therefore, for pronouncing the marriage void.
The third point is of more importance. Could the wife of a slave gain a settlement by residence in a town with her husband at the time of its incorporation, though her husband could not; he being the slave of a master living, and having his settlement, in another town ; and of course being settled in the same town with his master ?
[100]*100In the case of Shirley v. Watertown, 3 Mass. 322. it was cle-cided that a wife could not gain a settlement separate from her husband ; and of course that a warning of the husband only, prevented his wife and child from gaining a settlement. In that case all the persons were free; and the plaintiffs’ counsel contends that a distinction between that case and the present arises from that circumstance.
It is true it seems to be settled that a slave can neither acquire nor communicate a settlement, like a freeman. But still, if the wife of a slave could gain a settlement in her own right, without her husband, it might lead to a separation of the husband and wife, as effectually as if the wife of a free man could gain a settlement distinct and separate from her husband; which, it is admitted cannot be done. In both cases the settlement of the husband might be in one town and that of the wife in another. The- free husband could gain a settlement himself and the master of the slave husband would gain or retain one for him. Now as the reason assigned by the Court in the case of Shirley v. Watertown, why a wife cannot have a settlement separate from her husband, is, that it would lead to a separation of husband and wife ; and the same reason exists with equal force in the present case ; wc consider the law in both cases to be the same. Therefore the wife of Hazard could not and did not gain a settlement in her own right, by her residence with her husband in the town of Piltston at the time of its incorporation.
The last point for consideration is, whether Lucy, the daughter of Hazard, being about ten years old, and residing with her parents in Piltston at the time of its incorporation, did, in virtue of that circumstance, gain a settlement in that town.
If a minor of ten years of age could gain a settlement in such circumstances, the youngest infant could, upon the same principle; because, so long as they remain a part of the family of their parents, there can be no difference with respect to the power of gaining a settlement, bcUveen an infant of one year old and one of twenty years. The same principle applies to children under these circumstances, as to a wife; they cannot have a settlement distinct from their father, nor she from her husband. The reason of the law is the same in both cases ; and both these principles are recognized and settled in the case of Shirley v. Watertown.
[101]*101It is true, the language of the second section of Stat. 1793. c. 34. in the ninth mode of gaining a settlement, is general. “ All “persons, citizens as aforesaid, dwelling and having their homes “ in any unincorporated place, at the time when the same shall “ be incorporated into a town or district, shall thereby gain a “ legal settlement therein.” And in the cases of Bath v. Bowdoin, 4 Mass. 452. and Buckfield v. Gorham, 6 Mass. 445. the Court decided that such incorporation had the same effect before the Statute just mentioned. But notwithstanding the generality of the language—“ all persons'’—the clause must be understood with such limitations as the legislature must have intended ;—and they seem to have intended that all persons legally capable of gaining a settlement in any other mode, should, ipso facto, gain one in the method mentioned in that article ; but not, that a married woman, or a slave, should thus obtain a settlement.
Besides, the statute speaks of those dwelling and having their homes in such unincorporated place ; implying persons, not under the control of others, but acting from their own volition. This distinction is particularly made by the Court in the case of Somerset v. Dighton, 12 Mass. 382. in giving a construction to the language of the Provincial Stat. 4 W. & M. c. 13. and the first section of Stat. 1789. c. 14. In the latter Statute it is enacted that “ all persons who, before the 10th day of April 1767 re- “ sided or dwelt within any town or district in the then Prov- “ ince of the Massachusetts Bay for the space of one year, not “ having been warned to depart therefrom, according to law, “ shall be deemed and taken to be inhabitants of the same town “ or district, to every intent and purpose.” In that case, the pauper, being eleven years old, removed from Dighton in 1758, into that part of Swansey which is now Somerset, and had ever since remained there, not having been warned to depart therefrom. It was contended that the pauper had been emancipated by her mother ; but the facts did not prove it; and therefore the Court decided that such a residence in Swansey did not gain a settlement. She was considered as belonging to her mother’s family, and therefore not embraced in the general language of “ all persons.” In the case at bar, Lucy lived in the family with her parents at the time of the incorporation, which marked her [102]*102unequivocally as not emancipated, and so not capable of gaining a settlement.
If a child, under the age of twenty-one years, living in her father’s family in a town one year before the 10th day of April 1767, without being warned to depart, could not gain a settlement in such town when the parent gained none; we do not perceive upon what principle such child could, in such circumstances, gain a settlement by living in a town at the time of its incorporation.
After a careful examination and review of the able arguments on both sides, we are all satisfied that the present action cannot be maintained.
Plaintiffs Nonsuit.