Page:United States Reports, Volume 1.djvu/254

Rh 

1788.

to this conftructive abridgment of the rights of citzenfhip. A ftronger illuftration of this truth cannot be required, than the caufe before the Court; for, the Defendant has, within the very two years fpecified in the affirmation, reprefented this Commonwealth in the General Aʃʃembly, in the State Convention, and in Congreʃs;  and yet, it is contended, that the vague idea of an unlettered individual on the point of reʃidence, fhall be fufficient to deprive him of the privilege of his freehold, and, in effect, to declare him an alien.

There is, however, an effential difference between reʃidence, and abiding in a particular place. It is admitted, that the Defendant did not abide within the State for two years before the arreft ; but, we contend, that, neverthelefs, in contemplation of law, his reʃidence was here: For, a man is always prefumed to reʃide where his family is ; and, though when he goes abroad upon any temporary avocation, he abides in that diftrict to which he goes, yet this does not deftroy his original, domeʃtic, Reʃidence.  By one Act of Affembly it is provided, that foreign attachments fhall only iffue againft fuch as are not reʃifent within the State; 1 State Laws 44. And by another act, 1 State Laws 170, it is declared, that no perfon who had not reʃided within the State two years before his imprifonment, fhall have the benefit of the infolvent laws: In thefe cafes, and inthe conftructionof the Poor Laws,  and, in fhort, of all the ftatutes in which the word occurs, it has been the invariable practice of the Courts to enquire, to pronounce the law. Thus on the petition of one M Intire for the benefit of the infolvent law, although he had been abfent more than two years and a half; yet, as it was in proof that he was a Native, and always intended to return hither, this Court lately determined that his reʃidence became a matter of law and that the animuem reverlandi was fufficient to prevent his loofing the advantages of it.

What then is the proper interpretation of the act upon this fubject? – That the party fhall fet forth in his affidavit fuch facts, as will enable the Court to draw the legal inference, with refpect to the Defendant's reʃidence ; which, after all, is a technical term, 5 Burr. 2724, and the maxim is well eftablifhed, that a witnefs may fwear to matter of fact, but not to matter of law. This rule, indeed, (which applies in all cafes of evidence) fatisfactorily explains why a disjunctive is introduced in the fection under confideration ; why the provifion in the former part of the claufe, that the Juftice who grants the writ fhall adminifter the oath, is omitted in the later ; and why the words, the Plantiƒƒ, or ʃome other perʃon ƒor him, are dropt, when the fection comes to treat of thofe things which are matter of law ; – for the expreffion as the Deponent believes, at the fame time that it precedes the fentence refpecting the Defendant's refidence, evidently relates to the value of the eftate, and not the mode of proving the incumberances that affect it. But furely the legiflature could not mean to make the judge both of fact and Rh