Town of Lyndon v. Town of Danville , 28 Vt. 809 ( 1856 )

The opinion of the court was delivered, at the circuit session in September, by

Redeield, Ch. J.

The majority of the judges of the court, all of whom have heard the case, concur in the opinion that an alien born, whose father never comes into the state after the birth of the pauper, does not derive any settlement from his father, although his father, when he left the state, had a settlement in the state. The question is not of any practical importance, the number of cases which it will reach being very few. But if I were to determine it myself, I should give the statute the same operation it has in other cases, and the same which its words imply; i. e. that legitimate children shall have the settlement of their father. Whether this should be extended indefinitely is perhaps questionable. Whether settlements could be derived through aliens who never resided in the state, it is not relevant to inquire. But here the pauper is himself a citizen by the act of 1802, having been born of parents who were citizens before the passing of that act, and he derives his settlement from a father who was born within the state. I think, therefore, that he was properly removed to the settlement of his father. If not, the question might arise, whether he'could take the settlement of his mother, she having returned into the state about the time the pauper returned. And embarrassing questions might arise in that view, but the conclusion is that the judgment is reversed, and judgment upon the case stated that the pauper was unduly removed.

The following opinions in this case have been furnished to the reporter by judges Isham and Bennett.

Isham, J.

The inquiry, in this case, arises, whether the pauper, Israel Chamberlin, had his legal settlement in Danville to which place he was removed by the order of two justices from the town of Lyndon. The Comp. Stat. 128, §1, provides, “ that legit-mate children shall follow and have the settlement of their father, until they gain a settlement of their own.” Upon this provision of the statute this order of removal was made.

Ralph Chamberlin, the father of the pauper, had a legal settlement in Danville. It is not pretended that he or the pauper has ever acquired, in their own right, or in any other manner, a legal settlement in any other town in this state. If the case rested upon those facts alone, it would fall within the express letter of the act; the pauper would have a derivative settlement in Danville from his father, and the order of removal would have been properly made. It appears in the case, however, that Ralph Chamberlin with his family removed from Danville to Stanstead, in the province of Canada, about the year 1824 : that the pauper was born in that province, and that his father continued to reside there until his decease in 1844. His removal to Canada was not a mere change of domicil with the intention of returning, but a permanent change of his residence from this to a foreign government. So far as he was capable of doing it, it was a renunciation of his duties, obligations, and allegiance to this state and this country. It is unnecessary, in this case, to inquire what relation, after his removal, existed between him and this country, or the government to which he had removed. It may be true, that if at any subsequent time he had returned to this state, his settlement would have continued in Danville, as his relation to the state would have revived and existed the same as if no removal had been made. In that event, his settlement might have been transmitted to his minor children residing with him. But however that may be, the question still remains, can this pauper, under our statute, have a derivative settlement from his father in Danville when his birth was in a foreign country, whqn his parents were residing there at the time with no intention of returning, and when, too, the residence of the father was continued in that province until his decease.

The intention of the legislature, in the passage of the act in. relation to the settlement of paupers, was to make provision for the support of the poor who are inhabitants of and who belong to the state. It is a local regulation, and has no effect except upon those between whom and the state there is that relation which necessarily exists between the state and those subject to its government. Foreigners and the inhabitants of other states, who have never had a settlement here, cannot claim the benefit of its provisions, as they owe no duty to the state and the corresponding duty of protection and support is not due from the state to them. The provisions of this statute should be so construed as to meet the ordinary wants of those for whose benefit they were made, and should be extended to no other cases. In the case of Georgia v. Grand Isle, 1 Vt. 464, it was held that a settlement once obtained in this state was not lost by the subsequent acquisition of a settlement in another state; and such seems to be the. rule in New Hampshire. The minor children of such parents would follow the settlement of their father, though born in another state, if during their minority the father removed into this state. For, in the language of Lord Cranworth on the subject of dez-ivative settlements in the case of Adamson v. Barbour, 28 Law & Eq. 39, “ when we ascertain in what soil the root is fixed, we have at once the soil with which the branch, es are connected.” That result, Judge Swift also remarks, 2 Swift’s Dig. 818, “ would seem to follow from the community of privileges between citizens of the several states.” There is no disposition to question the doctrine as held in the case of Georgia v. Grand Isle, but the rule should not be apjzlied to cases of this chai-acter. Such a contingency could not have been anticipated by the legislature, and such a eonstz-uction would contravene the genezal policy of the general act. Ralph Chambez-lin could not be regarded as a citizen, or an inhabitant of this state, or of the United States, at the time of the birth of this pauper, nor at any period of his life after his removal to the province of Canada. It is true a temporary absence will not divest one of the character of a citizen of the state to which he belongs ; but when one removes to a foreign country, settles himself there,' and engages himself in the trade and business of that country, the animus manendi is fully established; and when that fact exists, he is stamped with the national character of that country, and his rights as a citizen of this country are at least suspended during that period. The rule seems to follow from adjudged cases in the courts of the United States; 2 Cranch 120; Case v. Clarke, 5 Mason 70; Cooper v. Gilbrath. 3 Wash. C. C. 546. It cannot be regarded as an unreasonable construction of this act to say, that if the rights of the father of this pauper, as a citizen of this state and country, were lost or suspended by his removal and residence in Canada, his right to transmit a derivative settlement to his children during that period was lost or suspended also.

The pauper, during his life, could be regarded only as an alien,' and subject to all the incapacities of one. He was under no natural allegiance to this country, and the correlative duty of protection was not due from this country to him, except such as is due to all aliens during the time they are within its jurisdiction. Justice Blackstone, 1 Bl. Com. 394, observes that “ children of aliens, born in England, are, generally speaking, natural born subjects, and are entitled to all the privileges of such.” Judge Swift, 2 Swift’s Dig. 618, says that “ by the common law, the children of private citizens born abroad are aliens.” Chancellor Kent has remarked; 2 Kent’s Com. 1, that “ that is the rule of the common law without any regard or reference to the political condition or allegiance of their parents, with the exception of embassadors.” In the case of Lynch v. Clark, 1 Sandf. Ch. R. 584, 639, it was held that a person born in New York of alien parents, during their temporary sojourn there, and who returned while an infant with her parents to their native country, and always resided there afterwards, was a citizen of the United States by birth. The doctrine of that case Chancellor Kent observes, is that of the English common law, and was the law of the colonies, and became the law of each and all the states when the declaration of independance was made, and continued so until the establishment of the constitution of the United States, when the whole exclusive jurisdiction of the subject of citizenship passed to the United States, and the same principle has there remained.” If the infant in that case was a citizen of this country by birth on a mere temporary sojourn of her parents here, surely the pauper, in this case, must be regarded asan alien, and a subject of the province of Canada, without reference to the citizenship of his father.

The question as to the citizenship of this pauper is unaffected by the act of congress, passed April 14, 1802, which provided that “ the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the same, be considered as citizens thereof.” That act is retrospective in its' character, and has no effect on children born subsequent to its passage. 2 Kent’s Com. 14. 2 Swift’s Dig. 818. Neither is it affected by the act of congress of February 18, 1855, as that act was passed after the decease of the pauper, which occurred during the winter of 1858-4, as well as after the decease of the pauper’s father; and the act itself applies only to those persons whose parents were citizens of the United States at the time of their birth. The pauper was therefore an alien at the time of his birth, and remained so to the time of his decease, and was as incapable of having a derivative settlement in this state from his father, as he was incapable of obtaining a settlement by residence. If this pauper derived a settlement in that manner in Danville, then, upon the same principle, his children, if he left any, would derive a similar settlement, though he had lived and his children were born in Canada, and that right of derivative settlement in Danville would be transmitted from generation to generation among those who are aliens, and who are under a natural allegiance to other governments. There is no place where such a consequence can be arrested when that construction of the act is applied to a case of this character. Such consequences could never have been intended by the legislature in making provision for the poor of this state, and such construction is deemed unwarranted by the letter or spirit of the act. I think, therefore, the pauper was unduly removed, and, upon the facts in the case as agreed upon by the parties, the judgment of the county court should be reversed, and judgment rendered for the defendant.

Bennett, J.

It is hardly necessary that I should add anything in this case; but it appears to me to extend the statute which enacts that “ legitimate children shall follow and have the settlement of their father until they gain a settlement of their own,” to a case like the present, would be to extend it to all possible cases indefinitely, and if this pauper took a derivative settlement in Danville from his father, I see not why the alien bom children of this pauper might not claim through him a settlement in Danville also.

It appears to me that it is going far enough to hold that a child bom in another sister state of a father having at the time his domicil in such state, shall take the settlement of his father in this state, if he have one. This may arise from the community of privileges between citizens of the several states, but if the father had been a foreigner, the place of birth of the child would have been its place of settlement.

In the case now before us the pauper was bom an alien to all intents and purposes. He could claim no personal rights or privileges at the hands of the state or the general government, and he owed to neither government any duties growing out of an allegiance. The father removed from this state about the year 1824, and lived in Canada up to the time of his death in 1844, having in that government a fixed residence, and without any intention of returning to the States, and during that time the pauper in question was born. I do not apprehend it is necessary to decide what the effect of this removal of the father from this state to Canada, under the facts which attend this case, would have upon his own settlement. It might if it was necessary, to say the least, be claimed with great plausibility that a citizen might in good faith adjure his country, and that the assent of his government would be presumed, if there was no statute regulation upon tile subject, and that he should be deemed thereby to be denationalized.

Our naturalization laws all seem to be founded upon that basis, and it might well be inquired whether this is not to be treated, at the present day, as the practical and fundamental American doctrine on this subject. I should apprehend that if the father was to be treated as denationalized, it would follow that there was on his part a perpetual abandonment of his previous settlement in the town of Danville, and of all his rights and privileges as an American citizen, and that it could not be maintained that upon his subsequent return to this state, his settlement in Danville would be revived. But we are not called upon to consider what would have been the effect, if any, of the father’s return to this state, upon his own settlement, or upon that of the pauper. It is a com mon principle that a foreign parent cannot communicate a settlement to a child, and I am, at all events, satisfied to treat the father in this case as quasi a foreign parent, and that he did not and could not communicate a settlement in this state to this child born an alien.

This, as it seems to me, accords with a sound, construction of the statute.’ When the statute says the child shall have the settlement of the father until he gains a settlement of his own, it would seem to me not to be the intention to include alien born children, who could not gain a settlement by a residence in a town, and I have some doubt whether aliens should be considered as included in the general terms “ every person,” and “ any person,” in those sections of the statute which provides for the gaining of a settlement by other means.

Although the views of all the members of the court are-not the same in relation to this case, yet I think the defendant town is entitled to a judgment, that the pauper was unduly removed.