Town of New Hartford v. Town of Canaan

• Decision Date: 31 May 1886
• Citation: 54 Conn. 39,5 A. 360
• Parties: TOWN OF NEW HARTFORD v. TOWN OF CANAAN.
• Court: Connecticut Supreme Court

5 A. 360

54 Conn. 39

TOWN OF NEW HARTFORD

v. TOWN OF CANAAN.

Supreme Court of Errors of Connecticut.

May 31, 1886.

Appeal from court of common pleas of Litchfield county. Action to recover for supplies furnished a pauper. Judgment for plaintiff, and appeal therefrom by defendant.

W. B. Smith, for appellant.

Jared B. Foster, for appellee.

PARDEE, J. La Fayette Parrott was born in 1836 in Massachusetts; his father being an alien resident there. Some five years thereafter the father removed, with his family, including La Fayette, into this state, residing first for about two years in Colebrook; then, for about the same length of time, in Winchester, going thence to Norfolk, where he resided until 1868. In 1855, in Norfolk, he was naturalized; La Fayette being then a minor. After attaining majority, the latter resided more than six years in Norfolk, presumptively self-supporting and paying all assessed taxes. In 1879 he came to want in the town of New Hartford, but had not then acquired a settlement there under the pauper laws. The latter town expended money for his support, and, claiming that the town of Canaan is his place of settlement, brought this suit for repayment.

In Lynch v. Clarke, 1 Sandf. Ch. 584, it is said as follows: "Upon principle, therefore, I can entertain no doubt but that, by the law of the United States, every person born within the dominion and allegiance of the United States, whatever were the situation of his parents, is a natural-born citizen. It is surprising that there has been no judicial decision upon this question. None was found by the counsel who argued this cause, and, so far as I have been able to ascertain, it never has been expressly decided in any of the courts of the respective states or of the United States. This circumstance itself, in regard to a point which must have occurred so often in the administration of justice, furnishes a strong inference that there has never been any doubt but that the common-law rule was the law of the land. This inference is confirmed and the position made morally certain by such legislative, judicial, and legal expositions as bear upon the question. Before referring to those I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, is that birth in this country does of itself constitute citizenship. Thus, when, at an election, the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as conclusive that be is a citizen. No one inquires further. No one asks whether his parents were citizens or were foreigners. It is enough that he was born here, whatever was the status of his parents. I know that common consent is sometimes only a common error, and that public opinion is not any authority on a point of law; but this is a question which is more important and more deeply felt in reference to political rights than to rights of property. The universality of the public sentiment in this instance is a part of the historical evidence of the state and progress of the law on the subject, indicates the strength and depth of the common-law principle, and confirms the position that the adoption of the federal constitution wrought no change in that principle."

In McKay v. Campbell, 2 Sawy. 118, it is said:

"By the common law a child born within the allegiance of the United States is born a subject thereof, without reference to the political status or condition of its parents."

In 2 Kent, Comm. (9th Ed.,) it is said that "natives are all persons born within the jurisdiction and allegiance of the United States." To the text is subjoined the following note:

"This 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 the children of embassadors, who are in theory born within the allegiance of the foreign power they represent." Calvin's Case, 7 Coke, 1; Lynch v. Clarke, 1 Sandf. Ch. 584, 639.

In this last case the doctrine relative to the distinction between aliens and citizens in the jurisprudence of the United States was extensively and learnedly discussed; and it was adjudged that the subject of alienage, under our national compact, was a national subject, and that the law on this subject which prevailed in all the United States became the common law of the United States when the union of the states was consummated; and the general rule above stated is consequently the governing principle or common law of the United States, and not of the individual states, separately considered. The right of citizenship, as distinguished from alienage, is a national right, character, or condition, and does not pertain to the individual states, separately considered. The question is of national and not individual sovereignty, and is governed by the principles of the common law which prevail in the United States, and became, under the constitution, to a limited extent, a system of national jurisprudence. It was accordingly held in that case that the complainant, who was born in New York of alien parents during their temporary sojourn there, and returned while an infant, being the first year of her birth, with her parents to their native country, and always resided there afterwards, was a citizen of the United States by birth. This was the principle of the English common law in respect to all persons born within the king's allegiance, and was the law of the colonies, and became the law of each and all of the states when the declaration of independence was made, and continued so until the establishment of the constitution of the United States, when the whole exclusive jurisdiction of this subject of citizenship passed to the United States, and the same principle has there remained.

In Field's International Code, 132, it is said: "A legitimate child, wherever born, is a member of the nation of which its father, at the time of its birth, was a member." Upon this, Morse, in his work on Citizenship, (page 17,) thus comments:

"This is the law in most European States, (Westlake, 16; 1 Foelix, 54,) but not in England or in the United States. However, in Ludlam v. Ludlam, 26 N. Y. 371, the court says: 'Citizenship of the father is that of the child, so far as the laws of the country of the father are concerned.' And it has been held in the United States that the national character of the parent is of no importance, even in the case of a child born within the territory to a parent who has not been, and has not taken any steps towards becoming, naturalized here, and who removes the child while an infant. Lynch v. Clarke, 1 Sanf. Ch. 585. But this decision seems not to be entirely approved, (Munro v. Merchant, 26 Barb. 400, 401,) and probably would, at the most, be considered as authority only in regard to the right of succession to real property within that state."

But in Munro v. Merchant, supra, the marginal note is as follows: "A child born in this state, of alien parents, during its mother's temporary sojourn here, is a native-born citizen." And the court says:

"It is further contended on the part of the defendant that the plaintiff himself is an alien. He was born in Ballston Spa, in this state, while his father was a resident of Canada, and returned to his father's domicile, with his mother, within a year after his birth. His mother was temporarily there without any actual change of residence either on her part or that of his father. It is argued that at common law a natural-born subject was one whose birth was within the allegiance of the king. The cases of children of ambassadors born abroad, and of children born in English seas, were considered exceptions. Chancellor Kent, in his Commentaries, defines a native-born citizen to be a person born within, and an alien one born out of, the jurisdiction of the United States. 2 Kent, Comm. 37-50. In Lynch v. Clarke, 1 Sandf. Ch. 583, the question was precisely as here,—whether a child born in the city of...