MAXEY, District Judge,
after stating the case, delivered the following opinion:
Recognizing the delicacy and gravity of the question which the present application involves, it was thought advisable to obtain the. views of several members of the bar as to the proper construction of that clause of the naturalization statute which the court is called upon to consider and construe. • With that object in view, the court addressed letters to Mr. T. M. Paschal and Mr. Floyd McGown,' inclosing therewith copies of the papers and testimony on file. Generously responding to the wish of the court, these gentlemen have submitted able and interesting briefs, which have received, together with those of Mr. Evans and Mr. McMinn, the attentive consideration which the nature of the case and importance of the question demand. And the court now desires to express its acknowledgments to all counsel appearing in the case for the valuable aid thus rendered.
The applicant, a citizen by birth of the republic of Mexico, desires to avail himself of the inherent right of expatriation, and to invest himself with the rights and privileges pertaining to citizenship of our country. Although 49 years have elapsed since the' negotiation of the treaty of Guadalupe-Hidalgo, which greatly increased our territorial area, and incorporated many thousands of Mexicans into our common citizenship, as will be hereinafter shown, the question of the individual naturalization of a Mexican citizen is now for the first time, so far as the court is advised, submitted for judicial determination. To the question, why may not he be naturalized under the laws of congress? it is replied that by section 2169 of the Revised Statutes it is provided: “The provisions of this title shall apply to aliens (being free white persons, and to aliens) of African nativity, and to persons of African descent.” The contention is that, by the letter of the statute, a Mexican citizen, answering to the description of the applicant, is, because of his color, denied the right to become a citizen of the United States by naturalization; and, in support of this view, the following authorities are relied upon: In re Ah Yup (decided by Judge Sawyer in 1878) 5 Sawy. 155, 1 Fed. Cas. 223; In re Camille (decided by Judge Deady in 1880) 6 Fed. 256; In re Kanaka Nian (decided by the supreme court of Utah in 1889) 21 Pac. 993; In re Saito (decided by Judge Colt in 1894) 62 Fed. 126; and 2 Kent, Comm. 73, where the learned chancellor expresses a doubt in these words:
“Perhaps there might be difficulties also as to the copper-colored natives oí America, or the yellow or tawny races of Asiatics, and it may well be doubted whether any of them are white persons, within the purview of the law.”
Of the four cases above cited, In re Ah Yup is the first in point of time, and the leading one. The four applications were denied, Ah Yup being a native of China, Camille a native of British Columbia, and of half Indian and half white, blood, Xian a native of the Hawaiian Islands, whose ancestors were Kanakas, and Saito a native of Japan. When the Case of Ah Yup was decided, the Chinese question was flagrant on the Pacific slope, and Judge Sawyer seemed to think, predicating his conclusion upon the debates in congress, that [349]*349the purpose of the amendment extending the right t of naturalization to Africans and persons of African descent was to exclude Chinese from the benefits of naturalization. To quote his own language:
“Many oilier senators spoke pro and eon on the question, this being the point of the contest, and these extracts being fail* examples of the opposing opinions. * ::i * It was finally defeated [fhe amendment to strike the word “white” from the naturalization laws]; and Uie amendment cited, extending the right of naturalization to the African only, was adopted. It is clear from lióse proceedings that congress retained the word ‘white’ in the naturalize lion laws for the sole purpose of excluding the Chinese from the right of naturalization. * * * Thus, whatever latitudinarian construction might otherwise have been given to the term ‘white person,’ it is entirely clear that congress intended by this legislation to exclude Mongolians from the right of naturalization. 1 am therefore of the opinion that a native of China, of the Mongolian race, is not a white person, within the meaning of the act of congress. The second question is answered in the discussion of the first. Thu amendment is intended to limit the operation of the provision as it then stood in the Revised Statutes. It would have been more appropriately inserted in section 2165 than where it is found, in section 2169. But the purpose is clear. It was certainly intended to have some operation, or it would not have been adopted. The purpose undoubtedly was to restore the law to ihe condition in which it stood before the revision, and to exclude the Chinese. It was intended to exclude some classes, and, as all white aliens and those of the African race are entitled to naturalization under other words, it is difficult to perceive whom it could exclude, unless it be the Chinese.”
The opinion of Judge Sawyer is by no means decisive of the present question, as his language may well convey the meaning that the amendment, of the naturalization statutes referred to by him was intended solely as a prohibition against the naturalization of memb'ers of the Mongolian race. The naturalization of Chinese is, however, no longer an open question, as section 14 of the act of May 6, 1882, expressly provides “that hereafter no state court or court ol the Baited States shall admit Chinese to citizenship; and all Jaws in conflict with this act are hereby repealed.” 22 Stat. 61.
If Chinese were denied the right to become naturalized citizens under laws existing when In re Ah Yup was decided, why did congress subsequently enact the prohibitory statute above quoted? Indeed, it is a debatable question whether the term “free while person,” as used in the original act of 1790, was not employed for the sole purpose of withholding the right of citizenship from the black or African race and the Indians then inhabiting this country. But it: is not necessary to enter upon a discussion of that question; nor is it deemed nuil erial to inquire to* wliat race ethnological writers would assign the present applicant. If the strict scientific classification of the anthropologist should be adopted, he would probably not be classed as white. It is certain he is not an African, nor a person of African descent. According to his own statement, he is a “pure hi coded Mexican,” bearing no relation to the Aztecs or original races of Mexico. Being, then, a citizen of Mexico, may he be naturalized pursuant to the laws of congress? If de-barred by the strict letter of the law from receiving letters of citizenship, is he embraced within the intent and meaning of the statute? If he falls within ihe meaning and intent of the law, his application should foe granted, notwithstanding the letter of the statute may be against Mm.
[350]*350In Holy Trinity Church, v. U. S., 143 U. S. 459, 12 Sup. Ct. 512, it is said by the supreme court:
“It is a familiar rule that a thing may be within the letter of the statute, and yet not within the statute, because not within its spirit, nor within the intention of its makers. This has been often asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question; and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results • which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act. As said in Plowden, 205: ‘Prom which eases it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter they have expounded to extend to but some things, and those which generally prohibit all people from doing such an act they have interpreted to permit some people to do it, and those which include every person in the letter they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the legislature, which they have collected sometimes by considering the cause and necessity of making the act, sometimes by comparing one part of the act with another, and sometimes by foreign circumstances.’ ”
A reference to the constitution of the republic of Texas and the constitution, laws, and treaties of the United States will disclose that both that republic and the United States have freely, during the past 60 years, conferred upon Mexicans the rights and privileges of American citizenship, not individually, it is true, but by various collective acts of naturalization. The first of such, acts will be found in the language of section 10 of the general provisions of the constitution of the republic of Texas, adopted in 1836. By that section it is provided :
“All persons (Africans, the descendants of Africans, and the Indians excepted) who were residing in Texas on the day of the declaration of inder pendenee [March 2, 183G] shall be considered citizens of the republic, and entitled to all the privileges of such.”
Under this provision, Mexicans who resided in Texas on March 2, 1836, became citizens of the republic (Kilpatrick v. Sisneros, 23 Tex. 113; Hardy v. De Leon, 5 Tex. 212; 13 Ops. Attys. Gen. 397, 398); and by the resolutions of March 1, 1845, and December 29, 1845, passed by the national congress, all such citizens, without express authorization, became incorporated into the citizenship of the Union. 'Thus, it is said by the supreme court, in Boyd v. Nebraska, 143 U. S. 169, 12 Sup. Ct. 385:
“By the annexation of Texas, under a joint resolution of congress of March 1,1845, and its admission into the Union on an equal footing with the original states, December 29, 1845, all the citizens of the former republic became, without any express declaration, citizens of the United States. 5 Stat. 798; 9 Stat. 108; McKinney v. Saviego, 18 How. 235; Cryer v. Andrews, 11 Tex. 170; Barrett v. Kelly, 31 Tex. 476; Carter v. New Mexico, 1 N. M. 317.”
See, also, Lawr. Wheat. (Append.) 897; Morse, Citizenship, § 94.
The next collective act in chronological order, providing for the naturalization of Mexicans, is the treaty concluded between the United States and Mexico, February 2, 1848, commonly known as the [351]*351“Treaty of Guadalupe-H idalgo.” The eighth article of that treaty is as follows:
“Art. 8. Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican republic, retaining the property which they possess in the said territories, or disposing thereof, and removing the proceeds wherever they please, without their being subjected, on this account, to any contribution, tax, or charge whatever. Those who shall prefer to remain in the said territories may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States. But they shall be under the obligation to make their election within one year from the date of the exchange of ratifications of this treaty; and those who shall remain in the said territories after the expiration of that year, without having declared their intention to retain the character of Mexicans, shall be considered to have elected to become citizens- of the United States. In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guaranties equally ample as if the same belonged to citizens of the United States.”
That Mexicans who remained in the territory ceded by the treaty of 1848, and who failed to declare their intention within the time limited to remain citizens of Mexico, became citizens of the United States, is a fact scarcely open to serious controversy. In Boyd v. Nebraska, supra, it is said by the supreme court, speaking through Mr. Chief Justice Fuller, that :
“By the eighth arricie of the treaty with Mexico of 1818, those Mexicans who remained in the territory coded, and who did not 'declare within one year their intention to remain Mexican citizens, were to be deemed citizens of the United Stales.”
Speaking of the treaty with Spain, which is similar in essential particulars to the treaty of 1848 with Mexico, the supreme court says:
“On the 22d of February, 1819, Spain ceded Florida to the United States. The sixth article of the treaty of cession contains the following provision: ‘The inhabitants of the territories, which his Catholic majesty codes to the United Slates by this treaty, shall be incorporated in the Union of the United States as soon as may be consistent with the principles of ilie federal constitution, and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United Slates.’ This treaty is the law of tlie land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities ot the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power. They do not share in the government till Florida shall become a state.” Insurance Co. v. Canter, 1 Pet. 542.
It is said by Mr. Justice McLean, in bis dissenting opinion in Scott v. Sandford, 19 How. 533, that:
“On the question of citizenship it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of ail grades, combinations, and colors. The same was done in the admission of Louisiana and. Florida. No one ever doubted, and no court ever held, that the people of these territories did not become citizens under the treaty. They have exercised all the rights of citizens, without being naturalized under the acts of congress.”
Upon articles 8 and 9 of the treaty of Guadalupe-ITidalgo a similar construction has been placed by the supreme court of California. [352]*352People v. De La Guerra, 40 Cal. 311. See, also, Morse, Citizenship, § 94.
On September 9, 1850, congress passed three acts having more or less bearing upon the question under discussion, to wit, the act for the admission of 'California into the'Union (9 Stat. 452), and the acts establishing territorial governments for New Mexico and Utah (9 Stat. 446, 453). By the act admitting California, Mexicans who were recognized as citizens by the treaty of Guadalupe-Hidalgo became citizens of the new state. See authorities above'referred to.
Section 5 of the act “to establish a territorial government for Utah,” which adopts literally the language of section 6 of the New Mexico act, provides as follows:
“And be it further enacted, that every free white male inhabitant above the age of twenty-one years, who shall have been a resident of said territory at the time of the passage of this act, shall be entitled to vote at the first election, and shall be eligible to any office within the said territory; but the qualifications of voters and of holding office, at all subsequent elections, shall be such as shall be prescribed by the legislative assembly: provided, that the right of suffrage and of holding office shall be exercised only by the citizens of the United States, including those recognized as citizens by the treaty with the republic of Mexico, concluded February second, eighteen hundred and forty-eight.”
It has been shown that Mexicans (and the term includes all Mexicans, without discrimination as to color) who remained in the ceded territory, and who failed to declare their intention within one year to remain Mexican citizens, became, by virtue of the. stipulations of the treaty of February 2, 1848, citizens of the United States. Whether congress intended to include Mexicans in the expression “white male inhabitants,” as¡ employed in the territorial acts above mentioned, may admit of question. But it is entirely clear, whatever meaning may be attached to those words, that the language of the acts explicitly recognized Mexicans who remained in the coded territory, and who did not renounce their Mexican citizenship within one year, as citizens of the United States, and conferred upon them the elective franchise, and the important and valuable right to hold office. It is equálly true that by article 5 of the treaty between the United States and Mexico proclaimed June 30, 1854, known as the “Gadsden Treaty,” Mexicans who remained within the territory ceded by Mexico to the United States in article 1 of the treaty, and who failed to renounce their Mexican citizenship within a year, became citizens of the United States.
The next act affecting the question of citizenship to- which attention will be directed is the fourteenth amendment of the constitution, declared to be part of the organic law, by resolution of congress, July 21, 1868 (15 Stat. 709, 711). By this amendment, which completely overthrew the last remaining vestige of the doctrine announced in Scott v. Sandford, 19 How. 393, touching the question of citizenship of the African, and invested the native-born negro with the rights of an American citizen (Slaughterhouse Cases, 16 Wall. 36; Elk v. Wilkins, 112 U. S. 101, 5 Sup. Ct. 41; Strauder v. West Virginia, 100 U. S. 306-308; In re Look Tin Sing, 21 Fed. 909), it is provided:
[353]*353“All persons born or naturalized in tbe United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
See, also, Rev. St. § 1092.
While this amendment, as held in the authorities last cited, was intended primarily for the benefit of the negro race, it also confers the right of citizenship upon persons of all other races, white, yellow, or red, born or naturalized in the United States, and “subject to the jurisdiction thereof.” The language has been held to embrace even Chinese, to whom the laws of naturalization do not extend. In re Look Tin Sing, supra; Gee Fook Sing v. U. S., 1 C. C. A. 211, 49 Fed. 146; Ex parte Chin King, 35 Fed. 354; In re Yung Sing Hee, 36 Fed. 437; In re Wong Kim Ark, 71 Fed. 382. Mexicans, therefore, born in the United States, and who, at the date of birth, were subject to the jurisdiction of our government, — as all were, except children of diplomatic officers, and a few others, not necessary in this connection io notice (In re Look Tin Sing, supra), — axe citizens of the United States and of the slate wherein thev reside. The intimation in some of the briefs of counsel that Elk v. Wilkins, 112 U. S. 94, 5 Sup. Ct. 41, excludes Mexicans from citizenship, is not maintainable. That case refers exclusively to tribal Indians born and residing within the territory forming a part of the United States. The following extract taken from the syllabus of the case will disclose the point decided :
“An Indian, bom a member of one of the Indian tribes within the United State's, which still exists and is recognized as a tribe by the government of the United States, who has voluntarily separated himself from his tribe, and taken up his residence among the white citizens of a state, hut who has not been naturalized or taxed or recognized as a citizen either by the United States or by 1lio state, is not a citizen of the United States, within the meaning of the first section of the fourteenth article of amendment of the constitution.”
In a word, Elk’s severance of Ms tribal relations had not been accepted by the United cuates, and, within the meaning of the amendment, he was not regarded as having been born “subject to the jurisdiction thereof.” The dissimilarity between the Elk Case and the one at bar is so pronounced that further reference to it is not deemed essential.
There was concluded at Washington, July .10, 1868, it may be said contemporaneously with the adoption of the fourteenth amendment, a treaty between the United States atid Mexico, “relative to naturaliza non.” Pursuant to notice given by the Mexican government, this treaty, as the court is informed by the secretary of state, was terminated February 11, 1882. It is therefore not now operative, and reference is made to it only for the purpose of indicating the construc1 ion placed .upon our naturalization laws at that time by the treaty-making power of the respective governments. The first article of that treaty provides:
“Ardelo 1. Those citizens of (he United States who have been made citizens of the Mexican republic by naturalization, and have resided without Interruption in Mexican territory five years, shall be held by the United States as citizens of the Mexican republic, and shall be treated as such. Reciprocally, citizens of the Mexican republic who have become citizens of the United States, and who have resided uninterruptedly in the territory of tbe United States [354]*354for five years, shall be held by the republic of Mexico as citizens of the United States, and shall be treated as such. The declaration of an intention to become a citizen of the one or the other country has not for either party the effect of naturalization. This article shall apply as well to those already naturalized in either of the countries contracting as to those hereafter naturalized.”
Two conclusions are fairly deducible from an analysis of the foregoing language: (1) The two high contracting parties recognized that Mexicans were embraced within our naturalization laws; and (2) that they had the right, individually, to invoke the aid of the statute, notwithstanding the provision which at that time limited the right of naturalization, to free white persons.
When all the foregoing laws, treaties, and constitutional provisions are considered, which either affirmatively confer the rights of citizenship upon Mexicans, or tacitly recognize in them the right of individual. naturalization, the conclusion forces itself upon the mind that citizens of Mexico are eligible to American citizenship, and may be individually naturalized by complying with the provisions of our laws. And this conviction is further strengthened by a consideration of the first section of the act of July 27, 1868, re-enacted as section 1999 of the Revised Statutes. Its language is as follows:
“Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right óf expatriation, is declared inconsistent with the fundamental principles of the republic.”
It will be observed the preamble declares that we have freely received emigrants from all nations, and invested them with the rights of citizens; and the enacting clause denounces, as inconsistent with the fundamental principles of the republic, any opinion, decision, or order of any United States officer which denies, restricts, impairs, or questions the right of expatriation. It may appropriately be said that naturalization is the final step in the process of expatriation, and, literally construed, any order, opinion, or decision of a United States officer denying, restricting; or questioning the right to become a naturalized citizen, save as to Chinese, would come within the denunciation of the statute. It is probable that the statute was not in: tended to have an effect so far reaching in its consequences, and that the primary purpose was, as the title of the original act asserts, to protect the rights of American citizens in foreign states. ' Tint the language of the act is significant as illustrating the policy of the government “to bestow,” using the words of Vice Chancellor Sandford, “the right of citizenship freely, and with a liberality unknown in the old world.” Lynch v. Clarke, 1 Sandf. Ch. 661.
After a careful and patient investigation of the question discussed, the court is of opinion that, whatever may be the status of the applicant viewed solely from the standpoint of the ethnologist, he is em[355]*355braced within tlie spirit and intent of onr laws upon naturalization, and his application should be granted if he is shown by the testimony to be a man attached to the principles of the constitution, and well disposed to the good order and happiness of the same. It is suggested that 1he proof fails in this respect; and the objection appears to be bast'd upon ¡he ground, intimated in the briefs, of his inability to understand or explain those principles. That the applicant is lamentably ignorant is conceded, and that he is unable to read and write tile testimony clearly discloses. Naturally enough, his untrained mind is found deficient in the power to elucidate or define the principles of the constitution. But the testimony also discloses that lie is a very good man, peaceable and industrious, of good moral character, and law abiding “to a remarkable degree.” And hence it may he said of him, notwithstanding' his inability to undergo an examination on questions of constitutional law, that by his daily walk, during a residence of 10 years in the city of San Antonio, he has practically illustrated and emphasized his attachment to the principles of the constitution. Congress has not seen fit to require of applicants for naturalization an educational qualification, and courts should he careful to avoid judicial legislation. In the judgment of the court, the applicant possesses the requisite qualifications for citizenship, and his application will therefore be granted.
NOTE BY THE COURT. The first naturalization act was approved March 26, 175)0 (1 Stat 103). By section 1 oí this act it is provided “that any alien, being a free white person, * * may he admitted to become a, citizen," etc. This act was repealed by the act approved January 20, 1795 (1 Stat. 414;. which was in turn repealed by the act of April 14, 1802. Both of these last-named acts confined naturalization to aliens being free white persons. This rule continued In force until 1870, when the law was amended to Include aliens of African nativity and persons of African descent. • “Such was the law on iho statute book,” says Mr. Morse, “when the revisers of the United States statutes prepared (heir revision, which, in the first draff, was formulated as follows: ‘The provisions of this title shall apply to aliens of African nativity, and to persons of African deseen!..’ ” Morse, Citizenship, § 189. In 1875 this section was so amended as to include free white persons, and the law as amended and now in force reads as follows: “The provisions. of this title shall apply to aliens (being free white persons, and to aliens) of African nativity, and to persons of African descent.'’ Rev. St. (2d Ed.) § 2161).
Ex parte SAUER.
(District Court of Texas, Uvalde County. September Term, 1891.)
PASCHAL, J.
In the matter of the application of Richard Y. Sauer, an alien and subject of the emperor of Germany, to be admitted to become a citizen of the United States of America, I have refused to grant the application for final naturalization, and assign the following reasons therefor:
The witnesses whom he presented in support of his application had no personal or direct knowledge as to applicant’s “attachment to the principles of the constitution of the United States,” never having heard him refer to the constitution or the principles contained in that instrument; neither had they any such knowledge of his being “well disposed to the good order and happiness of the same,” but inferred such to be the case from the fact that applicant was an industrious, law-abiding man. 1 then questioned Sauer upon these important points, he failing to tender other evidence upon them, when he asserted that lie was a socialist,, and a firm believer in the doctrines of socialism. Jolinnn Most, the great apostle, lifting, as he informed me, greatly misunderstood. Thereupon I stated that, In the judgment of the [356]*356court, the principles of socialism are directly at war with and antagonistical to the principles of the constitution, of the United States of America, and absolutely inconsistent with his being “well disposed to the good order and happiness” of the peoiile and government of this country. I then asked him to state some of its leading principles. He replied that they contemplated the ownership and operation of all railroads and'transportation lines of the country by the government, and that, as land was as free as air and water, socialists demanded the forced sale of all lands owned by the citizens in excess of that which was actually necessary to make a living upon (estimated by him at 200 acres), to the government, for the purpose of giving it to thosp who owned none. I sought to point out to him how such ideas were un-American, impracticable, and dangerous in the extreme to society as organized throughout the civilized world, and particularly in this free country. I furthermore explained to him that private property could not, under the constitution, be taken by the government for private use, and that this was a fundamental principle of the government, and one of the most sacred and jealously guarded rights of the citizen. He repelled these suggestions with derision and scorn, maintaining his right to his views. I informed him that while It was true that he or any naturalized citizen had an indisputable right to such sentiments, and to their free utterance, as well as to any other views they might entertain upon government, yet when a foreigner openly confesses to have such opinions, and, declaring his intentions to promulgate and carry them out, seeks to be admitted to American citizenship, it would be contrary to his oath of naturalization, and violative of the spirit and principles on which this government is founded and depends for its welfare, to admit him to citizenship.
For these reasons, and because I am of opinion that the time is upon us when the safety and perpetuity of our free institutions and of constitutional government in the land, as well as the good order and happiness of the people, demand that those who apply for the privilege, honor, and distinction of becoming American citizens should be free from doctrines which are not only subversive of constitutional government and our free institutions, but of organized society itself, have I deemed it wise and meet to deny the application of Richard V.-Sauer, while he harbors such views, to become a citizen of the United States of America.