This is a petition for a writ of quo warranto to test the right of the respondent to hold the office of state’s attorney of Washington County. As the case is presented, the only question for our determination is, was Mr. Jackson a citizen of the United States at the time of his election to the office in 1904?
It is said that we were not in harmony with the authorities when we held in State ex rel. v. Danforth,
This presumption, however, avails the respondent in this case nothing, for it is immediately met with proof of his foreign birth; from which fact arises a presumption that he is a citizen of the country of his birth and not of his residence,— which requires him to show that his citizenship is not controlled by that fact. Quimby v. Duncan, 4 Har. (Del.) 383; Minneapolis v. Renn, 56 Fed. Rep. 576; 7 Cyc. 147.
" These presumptions must be carried along and weighed and considered in determining the facts upon which our decision is based.
The Rev. John Jackson,, the great-grandfather of the respondent, was born at Petersham, Mass., July 2, 1771, and continued to reside in that State until some time after December 21, 1807, — the date of the birth of his daughter, Sarah Saphronia. His citizenship is questioned by the relator’s counsel, but not seriously, we think, for, though born a British subject, his continued residence in this country after the Declaration of Independence, giving allegiance to the new government, establishes his American citizenship. No doubt he had the right to- elect whether he would retain his native allegiance to- the British crown, or become a citizen of this country. But nothing appears to- indicate that he elected to adhere to- the Crown, so- he is to be deemed to be an American citizen. Inglis v. Sailors’ Snug Harbor,
While John Jackson was residing at Petersham, his son, Horatio Nelson Jackson, was born there March 5, 1810. The date of this birth is conceded, but it is insisted on behalf of the relator that there is no legitimate evidence before us that Horatio Nelson was born at Petersham, and that the circumstances, historical and otherwise, show that he must have been born in Canada after his father, John Jackson, moved there; and that the only evidence of the place of birth rests in a family tradition, which is merely hearsay and inadmissible to prove the fact. It appears by the record that a part of the evidence now objected to as hearsay was put into the case by the relator himself, and as to such he cannot now be heard to complain. Davis v. Streeter,
Rejecting the tradition referred to, there is nothing in the case to show John Jackson residing in Canada until several years after the birth of Horatio Nelson. In the cross-examination of Dr. J. Henry Jackson by relator’s counsel, it appeared that John Jackson went to Canada in 1812, but this is the earliest date of his removal there shown by the record,— excluding the tradition referred to. Samuel N. Jackson, son of Horatio Nelson, and father of the respondent, while the relator’s witness, in response to' orator’s counsel testified as follows:
Q. “Your father was also born in Canada?” A. “No sir, in the United States, in Massachusetts.” The relator seeks to avoid responsibility for this statement on the ground that when the question was asked he supposed that the witness had reliable data or knowledge on which to predicate his answer; whereas in fact it turns out that he had no information save the family tradition. The relator’s position is untenable. He would hardly be justified in assuming that the
Our attention is called to many circumstances which the relator elaims tend to show that Horatio Nelson must have been born in Canada. One of those vigorously urged upon our consideration is the fact that the first three sons of John Jackson were named after Presidents of the United States; while the fourth was named after a British Admiral, Horatio Nelson, and the fifth after a British poet, Joseph Addison. We attach but little importance to this. John Adams Jackson was bom in 1800 while John Adams was President. But James Madison Jackson was born in 1804,— five years before James Madison was President. George Washington Jackson was born in 180-5, — eight'years after George Washington’s term as President had expired, several years after his death and during the second term of Thomas Jefferson.
In this view of the matter, the subsequent life history of the Rev. John Jackson is of no further interest to us in this discussion, and he passes out of the case.
Horatio Nelson Jackson resided in Canada practically all of the time after his removal there until his death. He spent some portions of the later years of his life in the states, but it is not claimed that he established a permanent residence here. He became of age in 1831, married in 1833, and a son was born to him at Brome, P. Q., in 1838. This son is Samuel Nelson Jackson, father of the respondent. The time, then, which elapsed between the date when Horatio Nelson attained his majority and the birth of Samuel Nelson was about seven years. It is to this interval of time that we now direct our attention, for during his minority Horatio' Nelson was not competent to expatriate himself, —Ludlam v. Ludlam,
When Horatio Nelson became of age, the act of Congress of 1802, (2 Stat. at T. 155) was in force. This act 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 United States, be considered as citizens of the United States. Provided that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.”
The respondent claims that Samuel Nelson’s status as a citizen of the United States is fixed by this act which remained in force until 1855. But this act did not include Samuel Nelson. It only applied to persons whose parents were citizens in 1802, or had been previous to1 that time. Samuel Nelson’s father was not born until 1810, and SO' did not come within its terms. Yet this law remained on the statute books with its limitations and defects apparently undiscovered until Mr. Horace Bin-ney published in the American Taw Register, Vol. 2, P- *93, a vigorous article on the subject which induced the passage of the Act of 1855, (Comp. St. 1901, 1268) which reads as follows: “All children heretofore born or hereafter, born out of the limits and jurisdiction of the United States whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the right of citizenship shall not descend to children whose fathers never resided in the United States.”
So it is that the first question to determine is, was Horatio Nelson a citizen in 1838 when Samuel Nelson was bom?
Citizenship and domicile are not the sarnie thing. Neither necessarily controls the other. The matter of domicile is ordinarily of private concern only. Citizenship is a matter of public concern, — a matter over which the government assumes, in some degree, control. It is in its nature continuous, and once established, it is presumed to continue until the contrary is shown. Minneapolis v. Renn, supra. A change of domicile merely does not, as we have seen, effect a change of allegiance. To- oVerqome the presumption of the continuance of the allegiance once established evidence of an actual removal or a continued residence abroad with a fixed purpose to throw off and terminate the former allegiance must be produced. Thus in Quimby v. Duncan, 4 Har. (Del.) 385, a case involving the question whether one Hyatt was a citizen of that state, he having left the state at a certain time since when he had not been heard of, it is said that “a man is to be regarded as a citizen of his native state until it can be shown that he has changed this relation by leaving animo manendi or by acquiring a citizenship elsewhere. And this is to be not merely by a change of habitancy or residence, but by a change of citizenship.” In Beavers v. Smith,
Hauenstein v. Lynham,
In Ware v. Wisner,
There is no evidence in this case inconsistent with a continuance of Horatio- Nelson’s original citizenship- during his residence in Canada from the time he came of age to- the birth of Samuel Nelson. We are told that he voted in Chnada, but whether he did so before 1838 is left to conjecture. It is shown that he held title to real estate there just before the birth of Samuel Nelson. The deed itself is a quit claim of 72 acres with buildings and improvements, but the character of the property and whether he resided upon it or what he did with' it, does not satisfactorily appear. He was appointed a justice of the peace, but not until after the date in question, — - 1838.
On the contrary, the evidence of the respondent discloses that by his statements, — and these were admissible, Baptiste v. De Volunbun, 5 Har. & J. (Md.) 86 — he always claimed to be an American citizen and many circumstances are shown to indicate his intention to- adhere to- the allegiance of his birth, —and so we find the fact to- be that he did adhere to it. These views are not in conflict with Lyndon v. Danville,
It is of interest to note that Judge Poland presided at the trials of both these cases in the court below, and that his reversal in the first, of which he must have known, did not create such an impression upon his mind as to deter him (three years later) from ruling the second in precisely the same way.
But we have no occasion to criticise these cases, for that which completely distinguishes them from the case in hand is the application of the aforesaid Act of 1855, — which, it was held, was passed too* late to apply ho those cases, but which certainly applies to this one.
But we are reminded that the act expressly provides that the rights of citizenship shall not descend to; children whose fathers never resided in the United States, and it is urged that Horatio Nelson Jackson never resided here in the sense in which the term is used in the act. Our attention is called to our own decisions in pauper cases wherein we discuss the inability of a minor to acquire a residence or settlement. But those cases are not in point. There is nothing in the act indicating that any intent on the part of the person in question is required. The purpose of the provision is to prevent the
The citizenship- acquired by Samuel Nelson Jackson at birth was a qualified one and of that peculiar character under the law which required an election on his part upon attaining his majority or within a reasonable time thereafter whether he would conserve the citizenship of the United States or that of Canada. This election when once made is binding upon him and the country of his choice. Ludlam v. Ludlam, 26 N. Y. at p. 371; Van Dyne on Cit. 38. Such an election Samuel Nelson seasonably made, for he came to this country a minor, completed his education here, resided here several years after attaining his majority, took the freeman’s oath, engaged in business, paid taxes, and intended to become and thereby did become an American citizen in the full and unqualified sense of the term. Being desirous of engaging in the ministry, he applied in Massachusetts for certain Congregational funds to assist him in completing his training, but his application not being granted to the extent desired, he made a more advantag'eo-us arrangement for funds, in Canada under an agreement that he would serve in the ministry there for a period of five years. His subsequent residence in Canada was as an American citizen. He did not, and would not had he been required, take the oath of allegiance there; he did no-t intend toi do; and did not in fact do anything to divest himself of his full rights as a citizen of the United.States.
His son, S. Hollister, the respondent, was born in Canada in 1875; born into that same kind of American citizenship which required an election on his part as it had of his father. He came to Vermont permanently to- reside in 1893, a minor
Petition dismissed with costs against the relator Phelps.