Sums. J.
In this case, two questions are presented for the eonsiderafion of the court. 1. Did William Burke gain a settlement in Easl-lCvllam, by the purchase of real estate ? And 2. if this be not so, does the settlement of John Burke, the pauper, follow the settlement of his mother, at Mont-ville ?
The question, whether William Burke gained a settlement in East-lliddanu by the purchase of lands in that town, depends on his capacity to purchase and hold lands.
It is objected, that he was an alien, and by virtue of the statute, incapable of holding lands.(a) Was William Burke, then, an alien or foreigner, at the time when he made this purchase ! in forming my opinion on this point, 1 lay no stress on his having been previously admitted a freeman of the town of Montnllc. This act of the town, is no farther operative than as it relates to his elective franchise.
It has been argued, that the antenati of England, and of America, can hold lands in both countries; and Calvin's case is relied upon to prove this doctrine. A person born in America, before the declaration of independence, would, per* haps, have a right to hold lauds in England, because lie once owed allegiance to that government; and although a severance of the Uuittd State, from England, may release him from his allegiance, it cannot deprive him of his rights. But those horn in England, before that period, can have ne [172] pieicuee to citizenship in this counlry, on that account; their situation is totally different; they- never owed allegiance to this government, and never were citizens of this country. These principles were recognized by the court in the case of Dawson's Lessee v. Godfrey, 4 Cranch, 321.
. William Burke could not, therefore, have the right to purchase and hold lands in tills country, merely from his being born under the British government, at a time when the: 0⅜ ted States were subject to that government. He never owed allegiance to the American government. In Calvin’s case the Scotchman owed allegiance to Greal-Britain, whethej born in England or Scotland.
The next enquiry is, what effect did the treaty of peacs have upon those who deserted from the British army, afte, the sovereignty and independence of the United States hat' been announced by congress, ansi were actually domiciliated in this country, before a recognition of that independence, by ihe treaty of peace ? Títere is nothing to he found, cither in the provisional articles, or the dcfniiiivc treaty, which expressly relinquishes the right of allegiance, which the British government claimed relative to the people of the United States. This is, however, implied, from the explicit ac kuowledgmect of the sovereignty and independence of th several states. A rational construction of this instrument, will decide the question before the court ; and here, as in ail other written instruments, we are to look fur the meaning of the parties ; and for this purpose, ihe situation of the parties. their objects and views, are all important to he considered.
We were, at the time of forming the treaty, ia a state of civil war; and the British government considered us rebels and traitors ; and if we had been vanquished, we must have been treated accordingly. There would have neon no diilci enee in the view of that government, hetwecu those who were in this country, at the declaration of indopoodenci, and those who came here afterwards ; they were all ■ mially rebels. So, on the other hand, it is natural to suppose. (h.u the American govermenl would wish to obtain a relimpii nment of the claim to allegiance, for all those who had united [173] \>nil us, in oar struggle for freedom ; whether (hey were in ?fye country at the declaration of independence, or not.
Under such circnmstanci-s, and wish such views, the trea;y of peace was made ; containing an oxpkeil acltnowlodgment of the sovereignty and independence of the states. Can Hie government of (¡reat-Brilain, after this, claim allegiance from any of its funner subjects, who had chosen their side, united with the American people, and were actually domi-ciliated in this country, at the time of making the treaty ? It appears to me, perfectly clear, that no such claim can be made , and it is equally clear, that the American government is bound to protect this description of persons, and may claim from them the duty of allegiance. The case of M’Ilvaine v. Coxe's Lessee, reported in 2 Cranch, 230. and in 4 Cranch, 209. has been cited, and relied upon. In that case, the court decided, that a citizen of New-Jersey, electing to become a subject of the British King, and abandoning his own government, after the declaration of independence, and before the treaty of peace, was not thereby released from his allegiance to New-Jersey ; and that the treaty was only a recognition of our independence, and not a grant of it. That case differs widely from the present. The American government did not, by the treaty, relinquish its claim to allegiance from any persons whatever; nor is there any thing, either in the letter or spirit of the treaty, from which such a relinquishment can be inferred; while it is agreed, on all hands, that it was owing to a recognition of our independence, by Qreal-Britain, in the treaty of peace, that she renounced all claim to allegiance, which she before had, from the people of the United States. The American people claimed to be free, from the time of the declaration of independence. Great-Britain denied that claim, and treated us as rebels and traitors; until, finally, that government was induced to form a treaty acknowledging our independence. This must, of course, be a recognition of that independence, both at the declaration, and also at the time of forming the treaty, so as to enable the United States to claim, as her citizens, all who were here at either [174] period; otherwise, those who had actually been ailmittrd citizens agreeable to the laws of particular states, IiHiwck those periods, would be excluded. There is, then, this diifer-encein the operation of the treaty as respects the two nations ; viz. while it gives to America ail who were united with her at either period, it leaves to England, only such as were under her irnmediáte protection, at the declaration of independence. These principles being founded on a construction of the treaty with England, do not apply to any other nation or kingdom, whose subjects came to reside here, after our declaration of independence ; who, it must be admitted, would gain uo right to citizenship, by the treaty of peace. Indeed, as to such persons, the British government having no power to control them, could form no stipulations regarding their rights.
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Sums. J.
In this case, two questions are presented for the eonsiderafion of the court. 1. Did William Burke gain a settlement in Easl-lCvllam, by the purchase of real estate ? And 2. if this be not so, does the settlement of John Burke, the pauper, follow the settlement of his mother, at Mont-ville ?
The question, whether William Burke gained a settlement in East-lliddanu by the purchase of lands in that town, depends on his capacity to purchase and hold lands.
It is objected, that he was an alien, and by virtue of the statute, incapable of holding lands.(a) Was William Burke, then, an alien or foreigner, at the time when he made this purchase ! in forming my opinion on this point, 1 lay no stress on his having been previously admitted a freeman of the town of Montnllc. This act of the town, is no farther operative than as it relates to his elective franchise.
It has been argued, that the antenati of England, and of America, can hold lands in both countries; and Calvin's case is relied upon to prove this doctrine. A person born in America, before the declaration of independence, would, per* haps, have a right to hold lauds in England, because lie once owed allegiance to that government; and although a severance of the Uuittd State, from England, may release him from his allegiance, it cannot deprive him of his rights. But those horn in England, before that period, can have ne [172] pieicuee to citizenship in this counlry, on that account; their situation is totally different; they- never owed allegiance to this government, and never were citizens of this country. These principles were recognized by the court in the case of Dawson's Lessee v. Godfrey, 4 Cranch, 321.
. William Burke could not, therefore, have the right to purchase and hold lands in tills country, merely from his being born under the British government, at a time when the: 0⅜ ted States were subject to that government. He never owed allegiance to the American government. In Calvin’s case the Scotchman owed allegiance to Greal-Britain, whethej born in England or Scotland.
The next enquiry is, what effect did the treaty of peacs have upon those who deserted from the British army, afte, the sovereignty and independence of the United States hat' been announced by congress, ansi were actually domiciliated in this country, before a recognition of that independence, by ihe treaty of peace ? Títere is nothing to he found, cither in the provisional articles, or the dcfniiiivc treaty, which expressly relinquishes the right of allegiance, which the British government claimed relative to the people of the United States. This is, however, implied, from the explicit ac kuowledgmect of the sovereignty and independence of th several states. A rational construction of this instrument, will decide the question before the court ; and here, as in ail other written instruments, we are to look fur the meaning of the parties ; and for this purpose, ihe situation of the parties. their objects and views, are all important to he considered.
We were, at the time of forming the treaty, ia a state of civil war; and the British government considered us rebels and traitors ; and if we had been vanquished, we must have been treated accordingly. There would have neon no diilci enee in the view of that government, hetwecu those who were in this country, at the declaration of indopoodenci, and those who came here afterwards ; they were all ■ mially rebels. So, on the other hand, it is natural to suppose. (h.u the American govermenl would wish to obtain a relimpii nment of the claim to allegiance, for all those who had united [173] \>nil us, in oar struggle for freedom ; whether (hey were in ?fye country at the declaration of independence, or not.
Under such circnmstanci-s, and wish such views, the trea;y of peace was made ; containing an oxpkeil acltnowlodgment of the sovereignty and independence of the states. Can Hie government of (¡reat-Brilain, after this, claim allegiance from any of its funner subjects, who had chosen their side, united with the American people, and were actually domi-ciliated in this country, at the time of making the treaty ? It appears to me, perfectly clear, that no such claim can be made , and it is equally clear, that the American government is bound to protect this description of persons, and may claim from them the duty of allegiance. The case of M’Ilvaine v. Coxe's Lessee, reported in 2 Cranch, 230. and in 4 Cranch, 209. has been cited, and relied upon. In that case, the court decided, that a citizen of New-Jersey, electing to become a subject of the British King, and abandoning his own government, after the declaration of independence, and before the treaty of peace, was not thereby released from his allegiance to New-Jersey ; and that the treaty was only a recognition of our independence, and not a grant of it. That case differs widely from the present. The American government did not, by the treaty, relinquish its claim to allegiance from any persons whatever; nor is there any thing, either in the letter or spirit of the treaty, from which such a relinquishment can be inferred; while it is agreed, on all hands, that it was owing to a recognition of our independence, by Qreal-Britain, in the treaty of peace, that she renounced all claim to allegiance, which she before had, from the people of the United States. The American people claimed to be free, from the time of the declaration of independence. Great-Britain denied that claim, and treated us as rebels and traitors; until, finally, that government was induced to form a treaty acknowledging our independence. This must, of course, be a recognition of that independence, both at the declaration, and also at the time of forming the treaty, so as to enable the United States to claim, as her citizens, all who were here at either [174] period; otherwise, those who had actually been ailmittrd citizens agreeable to the laws of particular states, IiHiwck those periods, would be excluded. There is, then, this diifer-encein the operation of the treaty as respects the two nations ; viz. while it gives to America ail who were united with her at either period, it leaves to England, only such as were under her irnmediáte protection, at the declaration of independence. These principles being founded on a construction of the treaty with England, do not apply to any other nation or kingdom, whose subjects came to reside here, after our declaration of independence ; who, it must be admitted, would gain uo right to citizenship, by the treaty of peace. Indeed, as to such persons, the British government having no power to control them, could form no stipulations regarding their rights.
I therefore, conclude, that William Burke, by the treaty of peace, was released from his allegiance to the king of Great-Britain, and became a citizen of the l-nihd States. Whether he remained a citizen of the United Stales merely, or whether he thereby beeame a citizen of this state, is unimportant to consider; since the value of the laud by him purchased, in either point of view, would be sufficient to make him ah inhabitant of Eüst-Haddam. I have no doubt, but that the power of Congress to conclude a treaty, would be sufficient to constitute citizenship, in any of the individual states, and that William Burke, by the treaty, and his residence here, at the time, would become a citizen of this state, without any particular act of this government., making him such.
This viéw of the subject, in my opinion, is decisive of this case ; but, as another point lias been made, and fully discussed at the bar, and having no doubt in relation to it, I feet no reluctance to express my opinion on that point also.
The question in this part of the casé, is, whether, if William Burke had not gained a settlement at East-Haeldam. John IJurkr, the pauper, would take the settlement of ids mother at Montville ?
It is-unnecessary to go into a full investigation of all the authorities cited in this part of the case ; they clearly prove [175] the following; positions to bo correct : tliat when a woman marries a man, who has a settlement, she becomes settled there, and her settlement, if she has one, becomes extinct ; if they have children, these take their father's settlement; that where a woman having a settlement, marries a husband having none, Iter’s in suspended, though not, like most oi her other rights, during coverture, but. only so long as she continues to live with her husband; for as soon as the hus-haud leave- bis wife, she may, in England, he removed to the, place of her settlement; and the only reason assigned, for suspending her settlement, at all, is that she cannot be separated from her husband, by a removal to the place of her settlement : And, that where there are children, whose mother has a settlement, and their father has none, they take the settlement of their mother. It follows, then, that if William ihirlr had not gained a settlement in East-Haddam, John Burke must have been settled at Mfiutville ; so that, in either case, there can be no recovery against the town of Colchester.
A new trial must, therefore, be granted.
The other Judges concurred.
New trial to be granted.