People ex rel. Kimberly v. De La
Guerra, 40 Cal. 311 (1870)
THE
PEOPLE OF THE STATE OF CALIFORNIA, ex. rel. M. M. KIMBERLY, Appellant, v. PABLO
DE LA GUERRA, Respondent
40 Cal. 311
No. 2372
Oct. 1, 1870
Teeaty op Guadalupe Hidalgo. — Inhabitants op Ceded Tebbiioby.
— Citizenship. — The treaty of Guadalupe Hidalgo had the effect directly and of
itself to fix the status of the inhabitants of the ceded territories, in their
relation as citizens to the respective Governments of Mexico and the United
States.
Idem. — Abtiolb IX. — The only way in
which it was possible for Congress to admit the Mexicans in the territory ceded
by the treaty of Guadalupe Hidalgo to the enjoyment of all the rights of
citizens of the United States, was by incorporating the ceded territory into
the Union as States.
Idem. — Admission of a State. — After admission into the Union,
no Act of Congress was necessary to define the rights of the inhabitants who
were recognized as members.of the community organized
into a State.
Citizenship. — The possession of all practical rights is not essential
to citizenship.
Califobnia. — Admission of, as a St^te. — Qualification of Electobs.
When Congress admitted California as a State, the constitutent
members of the State, in their aggregate capacity, became vested with the
sovereign powers of government “ according to the
principles of the Constitution,” and had the right to prescribe the
qualifications of ¿lectors.
Idem. — Tbeaty of Guadalupe Hidalgo. —
It was no violation of the ninth article of the Treaty of Guadalupe Hidalgo
that the qualifications of electors, as prescribed in the Constitution of
California, were such as to exclude some of the inhabitants from certain
political rights.
Appeal from tbe
County Court of Santa Barbara County.
Judgment was for defendant; and
plaintiff appealed.
Tbe other facts are stated in tbe
opinion.
A. Packard, for Appellant.
Eugene Lies, of Counsel,
If tbe
judicial election bad taken place under tbe Act of
1851, (p. 287) or that of 1853, (p. 333), neither of which prescribes any
qualifications, tbe relator
might need to rely entirely upon tbe principle
discussed in tbe case of Walther y. Rabolt (30 Cal. 185). But, at tbe time of this election, the Act of April 20,1863, was in force; and its 19th Section declares that “no
person shall be eligible to tbe *312office of District Judge wbo shall not have been a citizen of the United States and
a resident of this State for two years and of the District one year, nest
preceding bis election.”
The error assigned by appellant is
that the Court below decided in substance that respondent was, and had been for
two years before his election, a citizen of the United States solely by virtue
of his choice under the treaty.
It may appear invidious, at this
late ■ day, to claim that, notwithstanding Articles 8 and 9 of the Treaty
of Guadalupe Hidalgo, the distinguished respondent, who has filled high offices
before and since the admission of California into the Union is not a citizen of
the United States, simply because Congress has not yet seen fit to declare
that, in its judgment, the “proper time” had come to provide for his admission.
Nevertheless the conclusion, however rigorous, seems inevitable, and the point
is by no means a new one.
It was first distinctly raised
September 12th, 1849, by Mr. Gilbert, in the Convention that met to frame a
Constitution for California. In the long debate which followed (Report p.
62-75) there appears no difference of opinion, except as to whether the Indian
citizens of Mexico should have the suffrage. Mr. Gilbert’s proposition, even at
that early day, required no argument in its support.
The question again came up in
committee of the whole as to the' qualifications of Senators and Members of the
Assembly; and was again mooted in regard to the qualification for the office of
Governor, although the section, as reported and afterward adopted, ensured the
eligibility of native Californians to that office, at the first election,
allowing sufficient time, it was thought, for Congress to adopt the provision
contemplated by the ninth Article of the Treaty. (Report, p.
157, et seq.)
When the report of the committee of
the whole came to be considered by the Convention, the respondent in this
proceeding introduced a substitute for the first section of the article on
suffrage, the main object of which was to secure the riaht
of votina for the decendants
of Indians *313(Beport, p. 323). Afterward (p. 341) be assented, byway of compromise, to Mr. Vermeule’s
proviso as it now reads at tbe end of said section.
But throughout this debate it is manifest that he was fully conscious that he,
together with his countrymen similarly situated, was, at that time, and would
remain, until Congress took special action, merely one of those Mexican
citizens in California who had “ elected to become
citizens of the United States.”
The fifth section of the schedule
appended to the Constitution again recognizes the distinction, fon it invites, to vote on the
adoption of that document: “every citizen of California, declared a legal voter
by this Constitution, and every citizen of the United States,” etc.
Now, if there be anything in the
notion that the native Californians became citizens of the United States by
simply abstaining to signify, in some way, their desire to “retain the title of
Mexicans,” (Treaty, art. 8,) then the respondent was one before he became a
member of that Convention, viz: as early at least as
the 30th of May, 1849.
It can scarcely be contended that
the respondent’s case was bettered by the admission of California into the
Union. For the act of admission merely sanctioned a Constitution which
recognizes a distinction between those who by right were already citizens of
the United States and those who expected to become so at the proper time, to be
“judged of by the Congress of the United States.”
Judge Bennett clearly was of the
opinion that the admission of the State into the Union, did not make those
Mexicans citizens of the United States, when, in The People v. Naglee, (1 Cal. 282), he classified them as
established Mexicans who, not having declared their intention still to continue
Mexican citizens, have elected to become American citizens. Far from intimating
that they have become such, according to the statement in the syllabus to that
case, he takes occasion to criticize the language of the first section of the
Foreign Miners’ Act, which, aside from the Court’s interpretation, would only
seem to exempt those Mexicans who had become citizens of the United States
under the Treaty, *314i.
e. by virtue of some special declaration of Congress. (Tobin
v. WallcinsJiaw, 1st. McA. 193.)
An
intimation in tbe
case of lhe American and Ocean Insurance
Company et al. v. Canter, may seem to militate against our view
(Peters 542). Evidently tbe reasoning is based upon tbe assumption that tbe treaty in
question operated eo instante
“ to admit
and incorporate” not to provide for future admission and incorporation;
therefore tbe passage in question, even if not
altogether obiter dictum, can only be invoked as authority here if a
similar construction can be forced upon tbe ninth
article of tbe Treaty of Guadalupe Hidalgo. At all
events tbe Court nowhere intimates that tbe inhabitants have become citizens of tbe
United States. To have done so would have been to accord tbe
power of naturalization to tbe treaty-making power.
And with all due respect, it is submitted that tbe
“political power” of which tbe Court speaks might
depend on many things besides tbe circumstance
referred to.
To show that a different rule
applies when a treaty contains a provision for future action, we apply to tbe same high authority. In tbe
case of Foster & Flam v. Neilson{2 Peters,
314), Judge Marshall says: “A treaty is in its nature a contract between two
nations, not a legislative act. It does not generally effect, of itself, tbe object to be accomplished; especially so far as its
operation is infra-territorial; but it is carried into execution by tbe sovereign power of tbe
respective parties to tbe instrument. In tbe United States a different principle is established, our
Constitution declares a treaty to be tbe law of tbe land. It is, consequently, to be regarded in Courts of
justice as equivalent to an Act of tbe Legislature,
wherever it operates of itself without the aid of legislative provision. But
when tbe terms of tbe
stipulation import a contract, when either of tbe
parties engages to perform a particular act, tbe
treaty addresses itself to tbe political, not tbe judicial department; and tbe
Legislature must execute tbe contract before it can
become a rule for tbe Court.” This identical language
is in corporated *315approvingly in The
United States v. Arredondo, {6 Peters, 735); at p. 710 of tbe same opinion, the principle is is
distinctly asserted and maintained. And, in the case of The United States v.
Percheman, after the Spanish version of
the treaty had been laid before and interpreted to the Court (7 Peters 69), the
Court reasserts the principle laid down in Poster &Elam v. Neilson,
(Id. p. 89). The language of the Court is: “If the claim was confirmed by
the treaty, which is the supreme law of the land, the United States have no
power” &c. (p. 79.) In other words, Percheman’s
claim stands confirmed because it has been brought to the knowledge of the Court, that the real terms of the treaty, instead of
providing, as was thought before, for some legislative action in its aid,
actually operated to confirm such claim. In the case of Garcia v. Lee,
(12 Pet. 515) Judge Haney recognizes Liam v. Neilson, as
authority throughout.
We respectfully refer the Court to
the following authorities cited by Abbott, and .not within our reach. (S. Dist.
of N. Y. 1847, matter of Metzger, 5 N. Y. Obs. 83, Ct. of Claims 1855-6; Humphrey
v. United States, Dev. 51, 7th, Circ. Mich. 1852; Turner v. American
Baptist Missionary Union, 5 McLean, 344.)
The distinction in question is, we
think, a sufficient answer (although there are others) to any argument based on
the authority of Gity of New Orleans v.
Armas and Gucullu,
(9th Pet. 224) and indeed on any of the Louisiana and Florida cases.
The reasoning in the famous case of Groves
et al. v. Slaughter (15 Pet. 449) is amenable, we concede, to the
criticism which sooner or later attends all mere political or expediency
decisions, but only because it goes infinitely farther than the point we are
endeavoring to sustain.
The Constitution of Mississippi
contained the following language: “The introduction of slaves into this State, as
merchandise, or for sale, shall be prohibited from and after the first day of
May, 1833:” The decision of a majority of the Court was that an Act of the
Legislature was required to carry that prohibition into effect.
*316We may also appeal to the
practice of our government heretofore :
The treaty of 1803 with Prance
contained the following Article: “ The inhabitants of
the ceded territory shall be incorporated in the Union of the United States, and
admitted as soon as possible, according to the principles of the Federal
Constitution, to the enjoyment of all the rights, advantages and immunities of
the citizens of the United States, and in the meantime protected,” &e.
Notwithstanding this assurance,
which seems to us as strong as that in the Florida treaty, Congress thought fit
to define the status of the inhabitants by the Act of March 2d, 1805. By the
first section of that Act it is declared that they shall be “entitled to and
enjoy all the rights, privileges and advantages secured by said Ordinance (13th
July 1787), and now enjoyed by the people of the Mississippi» Territory.”
Previously to this, their rights and privileges seem to have been only those
enumerated in the fifth section of the Act of March 26, 1804.
Furthermore the Act of February 20,
1811, authorizing the “inhabitants” to form a State government, invites certain
“inhabitants,” in contradistinction with “citizens of the United States” to
vote for members of the Convention,
Wherefore,
in view of these antecedents, when Congress, April 8th, 1812, admitted
Louisiana into the Union, it might well be considered to have redeemed the
pledge in the treaty. It is
believed that the admission of Louisiana was delayed for seven years — not from
the date of the treaty, but from the Act of 1805, defining the political status
of the inhabitants — so that the inhabitants might be on an equal level for eligibity to the House of ^Representatives, under the
second subdivision of Section 2, Article 1 of the Constitution of the United
States.
In the case of - Florida, “ An Act for carrying into execution the treaty between the
United States and Spain,” &c. was passed March 3d, 1821. By its terms the
power to establish a government is delegated to the President. But *317soon thereafter (March
30, 1822,) Congress, resuming the matter into their own hands, established a
government. Section 10 of that Act (3 U. S. L. 658) specifies the rights and
immunities of the “inhabitants.” Sections 12 and 13 of the amendatory Act of
March 3d, 1823 (Id. p. 753) pursue the same object. Further electoral
privileges axe conceded to the citizens of the territory of Arkansas by the Act
of Jan. 21, 1829 (4 U. S. L. 332) while the same act (Sec. 5) amplifies
the franchise to the qualified voters of Florida.
The case of Texas offered no
difficulties. Here we were dealing with an independent Eepublic.
Section 10 defined citizenship: “ All persons
(Africans, the descendants of Africans and Indians, excepted) who were residing
in Texas on the day of the, declaration of independence, shall be considered
citizens of the republic, and entitled to all the privileges of such.”
Clearly then the joint resolution of
Dec. 29,18s5, (9 Stat. at large, 108) admitting Texas “into the Union on an
equal footing with the original States in all respects whatever” admitted those
as citizens whom that sovereignty had designated as such, and those only. This
would seem to be established in the case of Benner et al. v. Porter, (9
How. 235) cited in Calkin & Co. v. Cocke, (14 How. 238) In other words, the
Texans became citizens of the United States not because of the admission alone,
but because of the fundamental law of the annexed sovereignty at the time of
the admission. Now the fundamental law of California discriminates.
We would seem to be justified,
without any further demonstration, to assume that the words “
at the proper time to be judged of by Congress,” so different from the
language in the treaties with Spain and France, were inserted in the treaty of
Guadalupe Hidalgo with a distinct and definite purpose. But we intend to make
that point still clearer.
The original Article IX, as proposed
by the Mexican. Commissioners, read as follows: “The Mexicans who, in the
territories aforesaid, shall not preserve the character of citizens of the
Mexican Eepublic, conformably with what is *318stipulated in tbe preceding article shall be incorporated into tbe Union of tbe United States,
and admitted as soon as possible, according to tbe
principles of tbe Federal Constitution, to tbe enjoyment of all tbe rights
of citizens of tbe United States. In tbe meantime they shall be maintained and protected in tbe enjoyment of their liberty, their property, and civil
rights now vested in them according to tbe Mexican
laws. With respect to political rights their condition shall be on an equality
with that of tbe inhabitants of tbe
other territories of tbe United States, and at least
equally good as that of tbe inhabitants of .Louisiana
and tbe Floridas, when
these provinces by transfer from tbe French Eepublic and tbe crown of Spain,
became territories of tbe United States.
“Tbe same
most ample guaranty shall be enjoyed by all ecclesiastics, and religious
corporations or communities, as well in tbe discharge
of tbe offices of their ministry as in tbe enjoyment of their property of every kind, whether
individual or corporate. This guaranty shall embrace all temples, bouses, and edifices dedicated to tbe
Bom-an Catholic worship, as well as all property
destined to its support, or to that of schools, hospitals, and other
foundations for charitable or beneficent purposes. No property of ibis nature
shall be considered as having become the property of the American Government, or as subject to be by it disposed of or
diverted to other uses.
“Finally the relations and
communication between the Catholics living in the territories aforesaid and
their respective ecclesiastical authorities, shall be open, free and exempt
from all hindrance whatever, even although such authorities should reside
within the limits of the Mexican. Eepublic as defined
by this treaty, and this freedom shall continue so
long as a new demarcation of ecclesiastical districts shall not have been made
conformably with the laws of the Eoman Catholic
Church.” (Tratado de Paz
Queretaro, 1848, pp. 11, 12, 13.)
The American Commissioners, however,
insisted upon and obtained the present version. And they had powerful *319motives: tbe Mexicans in tbe ceded
territory were supposed to be disaffected, particularly in California. Tbe official correspondence (see .for instance Sen. Doc.
1st. Sess. 31st. Cong. vol. 9) is full of information on tbis
subject.
Bitterness bad been added bere to that wbicb always attends
war by peculiar circumstances. Tbe first struggle (tbe Bear war) was understood to be revolutionary and
unauthorized by any recognized Government. During its progress it was
characterized by bloodly deeds and harsh retaliation.
Soon after tbe raising of tbe
American flag, tbe two highest Mexican officers
deserted the country. Tbe Southern part of tbe State arose in arms and
expelled tbe American garrison. Several encounters
took place, not always to tbe advantage of tbe invaders. "Well might Congress be left to judge of
tbe proper time when these Mexicans should be-
admitted to tbe enjoyment of tbe
rights of citizens of tbe United States.
Besides, a glance at tbe debates in Congress shows a prejudice, in tbe minds of tbe Senators and Eepresenta-tives, against tbe
character of tbe population of tbe
territory. Calhoun, in a great wbite-man-government
speech, is quite emphatic. (Cong. Globe, vol. 19. p. 49).
So is Dayton (Id. p. 499.) To such men tbe words in
question were tendered as a salve.
If it be pretended, under tbe authority of Knowles’ case (5 Cal. 300) that
there is no such thing as a “ citizen of tbe United
States,” and that, consequently, tbe qualification
prescribed for District Judges by tbe Act of 1883 is
illusory, we shall answer that tbe proviso of tbe treaty is open to tbe same
criticism, and shall furthermore cite that case as authority for tbe position that there is but one way of turning a
foreigner into a citizen, viz.: tbe judgment of some
Court of Becord, entered in some proceeding
authorized by tbe general laws of Congress
establishing “uniform rules” on naturalization. That tbe
treaty-making power is, and always has been, incompetent to naturalize; and
that tbe State itself, a uniform rule once
established by Congress, has no power to adopt a citizen, except in tbe manner pointed out *320by that rule. And to
maintain the last mentioned position it is scarcely necessary to appeal to tbe authority of tbe case whose
report fills some two hundred pages of the 19th How.,
from page 393 to the end.
We have hitherto argued with special
reference to those “words of solemn import” in the ninth article of the treaty
of Guadalupe Hidalgo, which provides for special action by Congress.
We now beg leave to present the view
that, even if those words were absent from the treaty, the respondent would not
be a citizen of the United States.
The States that formed the original
Union, though liberal beyond precedent in the adoption of foreigners, as
witnessed by that clause in the Declaration of Independence, where the
disinclination of the parent country to encourage foreign immigration is mentioned
as a grievance justifying rebellion, realized, to the utmost, the value of the
privileges which they extended to aliens. The whole subject .of naturalization
was referred to Congress. That this grant of power was exclusive appears from
many decisions. (Chirac v. Chirac, 2 Wheat.
269; Z7. S. v. Villato,
2 Dali. 372; Thur-ow
v. Massachusetts, 5 How. 585; Smith v.
Turner, 7 Id. 556; Dred.
Scott v. Sanford, 19 How. 398.) Congress, in the exercise of its constitutional
power, announced its settled policy in the Act of April 14th, 1802. The first
section of that Act reads as follows: “That any alien, being a free white
person, may be admitted to become a citizen of the United States, or any of
them, on the following condition and not otherwise.”
In 1804 it was thought best to
establish another “uniform rule of naturalization” for a certain class of
individuals. And the first section of that Act might well serve as a model for
an Act to admit to citizenship our Mexican residents whenever Congress shall
consider that their probation has been sufficient.
If we have not wholly misunderstood
the history of the country, Congress has never, in any single instance,
departed from the general rule. It has conferred the privi*321leges of citizenship on tbe inhabitants of annexed territories, but it bas done so by special enactments. It has first defined the
political status of the inhabitants, and afterward raised them to a level with
other inhabitants of the Union by investing the annexed territory with the
dignity of a sovereign State. Or, it has reached the same result by simply
approving a State Constitution which declared who were the citizens of that
State; and these became immediately entitled to the benefit of the provisions
of Section 2, Article IY. of the Federal Constitution,
But when Congress admitted
California into the Union, it was neither an independent republic which it
incorporated, as in the case of Texas, nor a district prepared for admission by
the usual initiatory stage of territorial existence, as in the cases of
Louisiana and Florida. It was a portion of Mexico, acquired by purchase, which
demanded admission. It tendered a Constitution which far from conferring, or
attempting to confer, citizenship upon the Mexican residents, pointedly
discriminated between them and the citizens of the United States, though
generously conferring the right of suffrage upon the former,
In admitting California, Congress
did no more then, as regards its Mexican inhabitants, than to confirm the
political status attributed to them in the fundamental law of the admitted
State, viz: that of Mexicans residing in California
who had elected to become citizens of the United States.
It was not an independent
sovereignty which the treaty promised to incorporate. It was a portion of the “ Department© de Californias.” If,
by any perversion of terms, it should be claimed that the respondent had some
status under the Mexican Constitution, at the date of the treaty, as a citizen
of California, which the United States might be bound to consider and respect,
as was done in the case of Texas, we confidently answer that, under the Mexican
Constitution in force at that time there was no such thing as a citizen of apy portion of the ^Republic of Mexico. There was a Bepublic of Mexico; it was divided geographically and
politically into a number of “Departamentos.” But *322each of these derived its
powers solely from tbe central source of authority.
Its legislativo bodj had no
life but what was conferred by the nation at large. State-rights, such as we
understand them, were unknown in Mexico. The very machinery of local government
was prescribed by central legislation (see Constitution of 1836, and law of
20th of March, 1837). There was, therefore, no such thing as a citizen of
California, (as we understand the term) before the American conquest.
There were simply certain citizens of the Republic of Mexico residing here.
This is all that the treaty recognizes, all that the State Constitution acknowledge. Aliens 'to all intents and purposes, they had
never owed any special allegiance to that portion of the Mexican Republic which
the treaty annexed; their allegiance was due to the whole Republic of Mexico.
By electing to become citizens of the United States, they had no State
allegiance to abjure, in terms or by implication, only allegiance to the
Republic of Mexico. No special autonomy ever belonged to California as a
portion of the Mexican territory, beyond what has been indicated in this hasty
sketch. No political rights ever attached to an inhabitant of California, under
Méxican rule, except the rights of a Mexican residing
there. Wherefore the respondent, at the date of the Treaty had no special
franchise, as a Mexican, attached to the circumstance of his dwelling in
California. He was simply a Mexican who might or not elect to become a citizen
of the United States. He did so elect; but that alone does not make him a
citizen.
In conclusion, we insist that the
respondent was an alien enemy up to the ratification of the treaty of Guadalupe
Hidalgo; that between that time and the date of the admission of the State of
California into the Union, he joined, by virtue of his silence, that class of
Mexicans who are deemed to have elected to become citizens of the United
States, but he is not and never was a citizen within the meaning of the Act of
April 20, 1863, prescribing qualifications for the high office which he
pretends to fill
*323Peachy <&
Hubert, for "-Respondent.
First — On tbe point of conquest, it
will suffice to say, in tbe language of tbe Supreme Court of tbe United
States, in tbe case of Percbeman
(7 Pet. 87), that “tbe conqueror displaces tbe former sovereign, and assumes dominion over tbe country ; tbe people change
their allegiance, and their relation to tbe ancient
sovereign is dissolved.” Now it is a well-established principle of tbe common law, that “ if tbe king of England make a new conquest, tbe persons there born are bis
subjects.” (Bac. Ab., Tit. Aliens.) Why? Because they- are
born within tbe dominions and allegiance of tbe king. “One born in Ireland, Scotland, or Wales,
or any of tbe king’s plantations, is a natural
subject of England, because be is born within tbe allegiance of tbe king.” (Bac. Ab., Tit.
Aliens.) All English subjects are either natural born, or denizens (so
made by letters patent), or naturalized, by act of parliament. Erom these three classes alike
allegiance is due to tbe natural person of tbe king. It was on this distinction between tbe natural and politic persons of tbe
king, that tbe celebrated decision in Calvin’s case
was grounded. It was there held that persons born in Scotland after tbe English crown came to James I., were born under
allegiance to tbe natural person : of tbe king of England, and might inherit in England. In tbe case of Craw v. Ramsey (Yaugban B.. 279), it is held that “according to tbe resolution and reasons of Calvin’s case, tbe specific and adequate cause, why tbe
kmg’s subjects of bis other
dominion than England, do inherit in England, is, because they are born bis natural subjects, as tbe
English are, be being actually king of England at tbe
time of their birth, when their subjection begins ;
and so are born liege men to tbe same king.” In /the
same case, p. 283, we are told that “ No fiction of law/can make a man a
natural subject that is not; for a natural subject and a natural prince are
relatives, and if an act of naturalization should thereby make a man a natural
subject, tbe same subject would have two natural
sovereigns, one when *324be
was born, tbe other when naturalized, which he can
never have more than twó natural fathers, or two
natural mothers, except the sovereigns be subordinate, the inferior holding his
kingdom as Liege Homager from the Superior.”
Under our form of government, there
being no such thing as allegiance to any natural person, the ligamen which binds the individual to the State consists
entirely in the obligations imposed on him by reason of his being one of many
who constitute a State or body politic. If we eliminate everything like a
personal relation between natural persons from the idea of citizenship, it is
reduced merely to that relationship which exists between the individual and the
aggregate of individuals called the State, and out of this relationship arises
allegiance.
When, therefore, the,United States wrests a province from another, and
incorporates it permanently in its own territory, and the country from which it
is taken by force, cedes it by treaty, whereby the allegiance due by its
inhabitants to the ancient sovereign, is transferred in all its fullness and
perfection to the new one, it seems that the inhabitants of that province must
be considered citizens of the country to which they have been transferred. Even
by the strict principles of the common law, if California had been conquered by
England, all persons there born after the conquest, would be English subjects ; because born within the allegiance of the king.
But between the allegiance due by those born before, and those born after the
conquest, there is no other difference than that the first allegiance comes by
transfer, and the second by birth. They drave
different origins, and different effects; but they are whplly
alike so far as regards obligation to the State, and the absence of obligation
to all other States. And therein, if we are not mistaken, is to be found the
true test of citizenship in these United States. When the United States
conquers a territory by force, and confirms the conquest by trteaty;
enforces a temporary allegiance by war, and accepts \£ull
and permanent allegiance by contract, transfer and relinquishment on the part
of the former *325sovereign,
it seems to us tbat tbe
inhabitants of tbe conquered province bear to tbe new sovereign all those relations out of. which citizenship necessarily arises. These relations, be it
further observed, are forced upon the inhabitants by the conqueror, who
procures for himself a formal recognization and
relinquishment of them by the old sovereign.
We are speaking of citizenship in
its simplest form, and entirely divested of those political rights which, under
our democratic form of government, are so commonly engrafted upon it as to have
given rise to an error common in popular thought, that they are its essentials.
Second — If the respondent did not become
a citizen by the conquest, cession, and permanent incorporation by the United
States of the territory whereon he was then, and has been ever since domiciled,
he certainly did become one, by force of the treaty of Guadalupe Hidalgo.
The 8th Article of the treaty is as follows ;
“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 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 ¿lection within one year from the date of the exchange
off ratifications of this treaty ; and those who shall remain within the said
territories after the expiration of that ye^ir,
without having declared their intention to retain the .character of Mexicans,
shall be considered to have elected to become citizens'of
the United States.” j
The remaining clause of the 8th
Article .has no bearing on the question involved in this case.
*326This
article of tbe treaty gives to tbe
Mexicans tben domiciled in California, tbe right to retain their domicile in the ceded territory,
and to retain their allegiance to the Republic of Mexico. In this respect, it
gives them an advantage which is denied them by the law of nations. For ac cording to that law they may, if they choose, depart
within a reasonable time from the conquered territory, taking with them their
property or its proceeds; but they cannot remain there domiciled without incuring all the obligations to the new sovereign, which
are imposed by full allegiance.
It gives them, moreover, the right
to choose between the old and the new sovereigns, to retain the rights of
Mexican citizens, or to acquire those of citizens of the United States. It
prescribes to them, further, the method by which they may retain their Mexican
citizenship or acquire citizenship . in the United States.
We regret that the learned counsel
of the appellant, failing to notice this article of the treaty, which is so
pertinent to the question under discussion that it affords the true grounds of
its solution, bestowed all their labor on the ninth article, which has no
bearing on it.
We contend that Don Pablo de la
Guerra, being a Mexican, then established in California, having refrained from
declaring his intention to retain the' character of a Mexican citizen, during
the time specified in the treaty, elected to become, and by his election did
become, a citizen of the United States.
Our Constitution declares a treaty
to be the law of the land. It hi consequently to be regarded in Courts of
justice, as eq1 valent to an Act of the legislature,
whenever it operates of iY?elf
without the aid of legislative provision.” (Per Chief Justice
Marshall, in Foster & Elam v. Neilson, 2 Pet. 314.) \
Does the.-eighth article of the
treaty, operate of itself, or does it require legislative aid
to put it in operation ? There can be^ no doubt that it
operates of itself. It is a contract and stipulation with the Republic of
Mexico, grant*327ing a
privilege to her citizens, and not a mere promise of a future grant. It is a
grant direct and immediate to certain Mexicans of the right to retain their
Mexican citizenship, or to acquire citizenship in the United - States. It is a
grant of the right of election, to be exercised pn a
certain manner, and within a specified time. And this time begins to run from
the date of the grant, i. e. from the
exchange of ratifications, and is limited to one year. If this article had been
intended as a mere promise o.n our part, that
Congress shall, at some future time, enact a law conferring on Mexicans
established in territories previously belonging to Mexico, and which remain for
the future within the limits of the United States, as defined by the treaty,
the right to’ retain their Mexican citizenship, or to become citizens of the
United States at their election, it would seem that in fixing a time within
which the right of election must be exercised, tho
date of the law which confers the right, would have been selected as the
initial point, and not the date of the exchange of ratifications.
But this is certain, if the treaty
operates of itself as a grant to Mexicans then established in the ceded
territory, of the right to retain their domicile in California, and tñeir allegiance to Mexico, by making a declaration to that
effect, it equally operates of itself as a grant to those same Mexicans of the
right to acquire citizenship in the Unitedl States,
by refraining for the space of one year from an^ after the-exchange of
ratifications, to make the declarati^H aforesaid. For
thechoiee is between remaining a citize^H Mexico, and
becoming a citizen of the United States. right of
election which is -granted, is the right tó choc^^|H tween those two things. If they have the right to chc^^^H one, they have an equal right to choose the other. spondent chose to become, and, by
his election, a citizen of the United States.
The respondent’s counsel say that
Judge case of the People v. Nagle, is far from Mexicans who, not
having declared their continue Mexican citizens, have
elected to *328can
citizens, “have become sucb.” We think tbis intimation scarcely does justice to tbe able jurist wbo delivered tbe opinion in that case. For be
says: “those wbo bare declared sucb
intention (to retain tbeir Mexican citizenship) if
there be any, still remain aliens and foreigners, and as sucb
are subject to tbe same restriction by State
authority as tbe subjects or citizens of any other
foreign country.” (1 Cal. 351.)
It is clear, therefore, that in
Judge Bennett’s opinion, tbe treaty operated of
itself to give to Mexicans tbe right to retain tbeir Mexican citizenship by declaring tbeir
intention. Tbe treaty says: “ Those
wbo shall prefer to remain in tbe
said territories, may either retain tbe title and
rights of Mexican citizens, or acquire those of citizens of tbe
United States.” How retain? and bow acquire? By
“making tbeir election within one year from tbe date of tbe exchange of
ratifications.” If tbe treaty proprio
vigore confers tbe
right to retain, it must equally confer tbe right to
acquire. According as tbe right of election is
exercised, Mexican citizenship is retained, or our United States citizenship is
acquired; .both come of election, or neither.
Tbe ninth article of tbe treaty does
really contain a promise. Tbe United States therein
pledge tbeir faith to Mexico that tall those Mexicans
wbo, in tbe exercise of tbe right of election conferred on them by tbe eighth article, have not refined tbeir
Mexican citizenship, “ shall be incorporated in^k the
Union of tbe United States, and be admitted at tbe ^K>er time, (to be judged
of by tbe Congress of tbe
United to tbe enjoyment of all tbe
rights of citizens of ^|Hbited 'States according to tbe principles of tbe con-&c.
Tbis article in our conception, is nothing less than
a promise, that, at some future day, Con-admit California into tbe Union, and those Mexi-^^^^^Hhave not retained tbeir Mexicansbip, shall be re-^^^^^^^nuembers
of tbe new State, entitled to all tbe
^^^^^^^uzens of tbe United
States according to tbe ^HH^^^kthe
Constitution.
citizen of tbe United States, as by tbe eighth *329article
of treaty Mexicans were permitted to become at their election, is one thing.
“To be incorporated into the Union of the United States, and admitted to the
enjoyment of all the rights of citizens of, the United States according to the
principles of the Constitution,” is a very different and a very much more
august thing, according to the opinion in those days prevailing as to the power
and dignity of a sovereign State in the then Union.
The citizenship of the respondent,
so far as it-could emanate from the treaty, is traced to the ninth article as
its only possible source, in the opinion of appellant’s counsel. Why the eighth
article, which is the true source of his citizenship so far as it comes from
treaty stipulation, should have been overlooed by
them and disregarded, it is difficult to understand. The appellant’s whole
argument upon the point that the treaty is not operative of itself,
but requires legislative action to give it effect, rests upon a mistaken
supposition. It is not the ninth but the eighth article of the treaty that the
respondent regards as the source of his right and authority to become a citizen
of the United States, in the-exercise of the right of election-thereby
conferred on him. And the respondent might well add, that if the said eighth
article has not the meaning which he and all his countrymen imagined they saw
plainly expressed on its face, it is the mosti ingeniously
devised article for the" suggestion of a seiiouiJ
mistake, that was ever introduced into a solemn treaty. A
Third — Now we come to the fulfillment of the promj^B
made in the ninth article of the treaty. The respond^^B one of those Mexicans
who did not retain his Mexioan^^H zenship,
has been “incorporated into the Union United States, and admitted at the proper
time H Congress appears to have thought it the proper enjoyment of all the
rights of citizen's of the Unik^^^^^H
according to the principles of the Constitution.
The Constitution of the United
States gives in so many words, the right to admit new Union: “A State is a body
politic, or society^^^^^^^^H together for mutual safety
and advantage.” *330Nat. Law, 63.) This
definition is not the best, because it is equally the definition of things
which are not States; but it is true. States are societies of men united together
for mutual advantage and safety. To admit a new State into the Union, is to
admit a society of men united together for the purpose of government, into-a
union composed of similar societies.
Governor Biley’s
proclamation inviting the people of Cali-forni a to
form a State Constitution, under which they might ask for admission into the
Union, confers the right to vote for delegates to the Constitutional
Convention, upon “every free male citizen of the United States and of Upper
California, twenty-one years of age, and actually resident in the district
where the vote is offered,” &c. (1 Hittel, 80.)
The Constitution formed by the
Convention so elected, declares that every white male citizen of the United
States, and every white male citizen of Mexico, who shall have elected to
become a citizen of the United States, under the treaty of peace exchanged and
ratified at Queretaro on the 30th day of May, 1848, of the age of twenty-one
years, &c., “shall be entitled to vote at all elections which are now, or may
hereafter be-authorized by law,” &c. (Const. Cal. Art. 2, Sec. 1.)
And further, “ every citizen of
California, declared a legal |pter by this
Constitution, and every citizen of the United ^i/tes, a resident of this State -on the day of election, shal entitled to vote at the first general election under
this \titution, and on the question of the adoption
thereof. k. Cal., Schedule, Sec. 5.)
Lereas, the People of California have presented a Con- and asked
admission into the Union, which Const: - |ts submitted
to Congress by the President of the |fees, ” &e.
Be it enacted by the Senate and House Miatives of the
United States of America, in Coupled, that the State of California shall be
one, • declared to be one of the United States of admitted into the Union on an
equal footing k States, in all respects whatever.”
*331Who
were the “People of California who presented a Cons bitution
and ashed admission into the Union?” They certainly
included all persons who had the right to vote for delegates to the
Constitutional Convention, and upon the question of the adoption of the
Constitution. The makers of the organic law of the State must be considered
members of the body politic which it creates. It was
they “who presented the Constitution and asked admission into the Union;’ and
it was they who were admitted into the Union under the name of the State of
California. And they were admitted on an equal footing, in all respects
whatever, with the several peoples, wrho, under the
names of the several States which they respectively composed, made and
originated the Union. To say that any one individual of the aggregate, called
the People of California, thus admitted into the Union, is not thereby made a
citizen of the United States, if he was not one before, is to assert what
appears to us simply impossible.
How did there ever come to be a
citizen of the United States, if it was not by virtue of the voluntary coming
together under the Constitution of the United States, of the independent and
sovereign communities, who severally acquired their independence and
sovereignty when they renounced allegiance to the British Crown. So entirely
independent of each other were these communities, that thei
Constitution of the United States makes no claim to the adhesion^ of any one of
them; but, in so many words disclaiming such a,right, submits itself to the consideration of e/ich separate people or State, as a desirable union for the
/purposes of mutual welfare and common defense. “The,Tatifi-forthe establishment of this Constitution
between the States so ratifying the same.” (Const. U. S., Art. YII.)7
In the interval between the
declaration of independence, and the adoption of the Constitution of the United
States, each colony, assuming the sovereignty and th© name of a State, regulated, by its own
legislation and fo4 itself exclusively, the whole-matter of citizenship
and allegiance. There *332were
citizens of Virginia, New York, Georgia, &c.; but there was no
citizen of any government common to the colonies. These facts are matters of
history. (See, on this point, Ingles v. Trustees of the Sailors’ Snug
Harbor, 3 Pet. It. 99.)
How then did there come to be a
citizen of the United States ? As soon;as the Conventions of nine States ratified the
Constitution, it became an established government for the States that'ratified it. The citizens of those nine States were
the first citizens of the United States. But the people of California, that is
to say, those persons who, in the language of the Act of Admission, “presented
a Constitution, and asked for admission into the Union,” were admitted therein
under the name and style of the State of California, on an equal footing with the
original States, in all respects whatever. Why the name “People of California,”
as used in the Act of Admission, should be construed to mean the citizens of
the United States residing in California, passes our comprehension. The counsel
for the respondent can find no reason for the limitation in the want of
congressional power, for Congress has a right to admit a new State into the
Union, every one of whose citizens, before admission, was an alien to the
United States. And so far from finding any circumstance in the relations
between California and the Federal Government, to warrant such mutilation of
the vname, those relations would fully justify the
enlargement of , a doubtful term, so to embrace the
whole class of Mexicans domiciled in California, to whom incorporation “into
the Ui^on of the United States,” and admission “to
the enjoyment of all the rights of citizens of the United States,” had been\prómised by treaty. Certain it is, that if the name Peoplé of California, in the Act of Admission, does not
embrace ‘\the Mexicans who, in the territories aforesaid, shall not preserve
the character of citizens of the Mexican [Republic,” our government has utterly
failed to fulfill its promise of incorporating such Mexicans into the
Union of the United States; nor Vs it easy to see how, under the circumstances,
that promise^ can how be fulfilled. For the promise
to incorporate those Mexicans domiciled in California, who *333shall renounce allegiance
to Mexico, into the Union of the United States, means nothing more nor less
than to admit them as a body politic or State into the Union. To naturalize
individuals is quite a different thing from incorporating a large body of men,
domiciled in a certain territory, into the Union of these United States.’’ But
Congress has incorporated one body of men inhabiting California into the Union
of these United States. If this body of men does not include those Mexicans in
California, whose incorporation “into the Union of the United States,” and
whose admission to “the enjoyment of all the rights of citizens of the United
States, according to the principles of the Constitution,” was so emphatically
promised by the treaty, how is the treaty stipulation to be carried out ? We are inclined to believe that Congress has not
violated the promises of the treaty by rendering their fulfillment impossible.
On the contrary, if we are not to attribute to Congress wanton bad faith, and
the most plentiful lack of statesmanship, we must believe that the Constitution
which was presented by the people of California to the Congress of the United
States, when they asked admission into the Union, was carefully examined by
that body of legislators, with special reference to the question : whether by
said Constitution, the Mexicans domiciled in California, to whom incorporation
into the Union of the United States had been promised, were- clearly, and
beyond' the possibility of doubt, made members of the body politic ■ —
named the State of California — then asking admission, 'Ordinary good faith
could not fail to prompt such an inquiry; nor would any legislator, who had the
least regard for decency, have failed to denounce the Constitution and to
refuse admission to the State, if the Mexicans to whom incorporation into the
Union had been promised, had been denied membership in the body politic.
The only question, then, that the
logic of this case admits of is: Was the respondent a member of the body
politic which was admitted into the Union under the mame
of the State of California? Was he one of the people of California, within the
meaning of that terfn in the pre*334amble of tbe Act, wbo presented a
Constitution and asked admission into tbe Union, and
were admitted ? How is tbat
fact to be determined ? Solely by tbe
Constitution of California; and if, by tbat organic
law, tbe respondent was not made a member of tbe body politic, or State of California, or in one word, a
citizen of tbe State of
California, tben there was no sucb
thing as a citizen of tbe State. For tbe Constitution does not declare by formal definition, wbo shall be citizens of tbe
State, but, in conferring tbe right of suffrage, it
describes as citizens of California all persons wbo
are declared legal voters by this “Constitution,” to whom, as well as to every
citizen of the United States a resident of this State on tbe
day of election, tbe right to vote at tbe first general election under tbe
Constitution, and on tbe question of tbe adoption thereof, is given. (Schedule, Sec. 5.) Tbe respondent was a member of tbe
Convention which framed tbe Constitution, as
rightfully a member as any other gentleman wbo was
delegated to perform tbat duty. Tbe
Constitution gave him tbe right to vote upon tbe question of its adoption, and describes him as “ a
citizen of California, ” entitled to vote at all elections which are now or
hereafter may be authorized by law.” (Const. Cal., Art 11, §
1. Schedule, § 5.) Add to this tbat-California bad been in tbe
full and undisputed exercise of all tbe powers of a
''State for at least eight months before its admission into the tJnion, during which time, and at tbe
date of admission, tbe respondent represented tbe Senatorial Districts of Santa Barbara and San Luis
Obispo in the Senate of tbe State, andVe think there can be little doubt tbat
be was one of tbe people of California wbo presented tbe Constitution
and asked admission into tbe Union,
Tbe appellants’ counsel say: “ Tbe case of Texas offered no difficulties. Here we were-dealing with an independent republic.” If we
understand tbe counsel’s argument, it is this: All
persons wbo, by tbe organic
law of Texas, were citizens of ÍTexas at tbe time of its admission, became citizens of tbe United States by virtue of tbe
admission; but the Constitution of California discriminates between tbe *335citizens
of the United States and the Mexicans who bad elected to become such, and
therefore the Mexicans were not members of the body politic, called the State
of California, which was admitted into the Union, and did not thereby become
citizens of the United States. There would be some force in this argument if
the discrimination referred to excluded said Mexicans
from membership in the body politic which was created by the Constitution. But
unfortunately for the counsel’s argument, the discrimination is resorted to by
the Constitution solely for the purpose of describing two classes of persons,
both of which classes are to be considered citizens of the State. If there be
any doubt as to the inclusion of either class in the term “citizens of
California, ” it cannot refer to the Mexicans who had
elected to become citizens of the United States; for they are described in the
schedule, section 5, as citizens of California, declared legal voters by this
Constitution. Thus the real discrimination is between the white male citizens
of Mexico, who have elected to become citizens of the United States, upon whom
the right of suffrage is conferred by the first section of the second article
of the Constitution, and who, by section 5 of the schedule, are described as
citizens of California, and citizens of the United States resident in
California. The discrimination is against the citizens of the United States,
inasmuch as a distinction is made between them and citizens of California.
We refer the Court to the cases of Cryer v. Andreios,
(II Texas Reports, p. 182); and to Desbois’s
case, (Martin La. Rep. N. S. 285); and to the case of Uie
United States, v. Laverty, decided in the District Court of the
United States, and reported in the same volume of Martin, p. 747. Those cases
fully establish the respondent’s citizenship., /
In the case from Texas, the Court
says: “ For whether the time be computed from the
death or from the Act, still nine years had not elapsed before the consummation
of annexation between Texas and the United States;/ and from' that time the
plaintiff (a citizen of Arkansas) became virtually a citizen of Texas, and
entitled to tMe privileges *336and immunities of
citizenship.” * * “This position seems so clear that comment in support of it
is unnecessary. When the Congress of the United States, under tbe authority to admit new States, receives a foreign
nation into the confederacy, the laws of those respective nations, in relation
to the naturalization of individual emigrants, have no application to the
respective citizens of each. By the very act of union, the citizens of each
become citizens of the government, or governments formed by this union. The
position which has been sometimes broached, that the citizens of Texas must
submit to the laws of naturalization before they can become citizens of the
United States, is quite preposterous.” (Id. p. 83.)
Now what is said of Texas is true of California. For it is obvious that the
civil status of the citizens of the admitted State, considered in reference to
the Union, depends, not upon the previous condition of the admitted State, but
solely upon what it became by reason of its admission. It is its admission as a
State into the Union which places it in such a relation to the Union, that its citizens become citizens of the Union, and
all the citizens of .the latter become its citizens. By entering the Union all
the States assume an equal footing, whatever differences before then may have
existed between them in respect to independence and sovereignty.
The effect of incorporating a State
into the Union upon •an equal footing in all respects whatever with the
original ¡States, is to render its condition such as it would have bejen had the new State been a party to the adoption of the
Constitution of the United States^ In this point of view we' are inclined to
deny the correctness of the position of the Xearned
Judge, who, in DesboiSis case, above cited, says ihat admission into the Union is the naturalization of a larga body of men by a single act. In our view of the
matter, \ those who were citizens of California at the moment \ of her
admission into the Union were not 'naturalized thereby. They became citizens of
the United States by ¡a much higher warrant, precisely as the citizens of
Virginia Vnd Massachusetts and Georgia became
citizens *337of the United
States wben they adopted tbe
Constitution; and tbey certainly were not naturalized
citizens.
Tbe Constitution of tbe United States
(Art. 1, Sec. 2) declares that no person shall be a representative, who shall
not have been seven years a citizen1 of tbe United
States wben elected, &c. And in
Art. II. Sec. I, that no person, except a natural born
citizen, or a citizen of the United States, at tbe
time of tbe adoption of tbe
Constitution, shall be eligible to tbe office
of President. As it was tbe adoption of tbe Constitution by tbe
Conventions of nine States that established and created tbe
United States, it is obvious there could not then have existed any person who bad been seven years a citizen of tbe
United States, or who possessed tbe Presidential
qualifications of being thirty-five years of age, a natural born citizen, and
fourteen years a‘ resident of tbe
Unitéd States. Tbe United
States in these provisions, means tbe
States united. To be twenty-five years of age, and for
seven years to have been a citizen of one of tbe
States which ratifies tbe Constitution, is tbe qualification of a representative. To be a natural born
citizen of one of tbe States which shall ratify tbe Constitution, or to be a citizen of one of said States
at tbe time of such ratification, and to have
attained tbe age of thirty-five years, and to have
been fourteen years a resident within one of tbe said
States, are tbe Presidential qualifications,
according to tbe true meaning of tbe
Constitution,
California
having been admitted into tbe Union on. a footing of equality with tbe original States, in all respects whatever, must be
considered as having come intoi tbe
Union, Congress permitting, by ratifying tbe
Constitution of tbe United States. To be a State of tbe Union,' on an equal footing in all respects whatever
with thos^ States which became members of tbe Union by their ow/n voluntary
ratification of tbe Constitution which created it, is
to be entitled to all tbe rights and privileges wlaich would result from entrance into tbe
Union, in ill® mode prescribed by tbe Constitution
for its own primonffial establishment. "We
therefore bold that tbe xesporMent
became a *338citizen of tbe United States in precisely tbe
same way as Tbomas Jefferson and all tbe other signers of tbe
Declaration of Independence, that is to say : by
virtue of tbe ratification of tbe
Constitution of tbe United States by tbe conventions of tbe several
States of wbicb respectively they were citizens. Tbe ratification of their own Constitution by tbe people of California, is tbe
ratification of that of tbe United States ; for in tbe 12th Section of tbe Schedule
it is provided, that “ tbe senators and
representatives to tbe Congress of tbe United States, elected by tbe
Legislature and people of California, as herein directed, shall be furnished
with certified copies of tbe Constitution, when
ratified, wbicb they shall lay before tbe Congress of tbe United
States, requesting, in tbe name of tbe people of California, tbe
admission of tbe State of California, into tbe American Union.” Here was tbe
ratification of tbe Constitution of tbe United States by a convention of tbe
State of California, wbicb, together with tbe consent of Congress, signified by tbe
Act of Admission, made California a State of the Union — tbe
equal in all respects whatever of tbe original
States. Tbe original States agreed among themselves
upon tbe manner in wbicb
each one might come into tbe contemplated Union if it
pleased, and gave to Congress the power to admit new States upon tbe same terms. Tbe coming into tbe Union of an original State,
depended solely on its own will made known in a prescribed mode. Tbe coming into tbe Union of a
new State, depends not on its own will alone, but also on tbe
will \of Congress, and that is tbe only difference
between tbe twp cases.
Goffroth & Spaulding, for
Appellant, in reply.
Contended that, if, as contended by
respondent, tbe eighth anVl
ninth articles of tbe treaty of Queretaro make all
citizens'* treaty, who \did not within one year elect to remain citzens of Mexico, civ^ens of tbe United States without any Act of Congress, then*he
Constitution of tbe State of California is *339repugnant to that treaty;
for, by that instrument, a discrimination is made between white citizens of
Mexico and Negroes and Indians, who were as much citizens of Mexico as white
persons.
Temple, J.,
delivered the opinion of the Court, WALLACE, J., and Crockett, J.,
concurring:
The respondent was born at Santa
Barbara, in 1819, and has ever since resided at that place, and is admitted to
have been a white male citizen of Mexico at the date of the treaty of Guadalupe
Hidalgo. After the ratification of that treaty he elected to become a citizen
of the United States in the mode provided in the treaty. He was a member of the
Constitutional Convention which framed the Constitution of California, and has
almost continuously, since the adoption of that instrument, held office under
its provisions. At the judicial election, held in 1869, he was elected Judge of
the First Judicial District, and the relator in this
proceeding contests his right to the office, on the ground that he is not a
citizen of the United States, as by an Act passed April 20, 1863, it is
provided that “no person shall be eligible to the office of District Judge, who
shall not have been a citizen of the United States and a resident of this State
for two years.”
Article IX of the treaty of
Guadalupe Hidalgo is as follows: “The Mexicans who, in the Territories
aforesaid, shall not preserve the character of citizens of the Mexican Eepub-lic, conformably with what is stipulated in the
preceding' Article, shall be incorporated into the Union of the TJnitud States and be admitted at the proper time (to be
judged of by the Congress of the United States), to the enjoyment of all the
rights of citizens of the United States, according to the principles of the
Constitution; and in the meantime shall be maintained and protected in the free
enjoyment o|^their liberty and property,, and secured in the free exerdfcfe of their religion without restriction.” ¶
It is contended on the part of the relator that Mexicans who were resident in California at
the date of the treaty, and who elected in the-mode provided to become'
citizens of the *340United
States, did not acquire the right of citizenship by the terms of the treaty,
but an Act of Congress admitting them to such rights is necessary, and that no
such Act having been passed, the respondent is not a citizen.
The question raised would be of very
grave import to the people of this State, were it not for the fact that its
solution is quite obvious. By the eighth article of the treaty it is provided
that the Mexicans who were resident in the ceded territory might either remain
or remove to the Mexican [Republic, and should be protected in their property.
It is then stipulated:
“Those who shall prefer to remain in
said Territory 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 ratification 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 their character
of Mexicans, shall be considered to have elected to become citizens of the
United States.”
The natural consequence of the
cession of the Territory by Mexico, and its acquisition by the United States,
would be that the allegiance of the inhabitants who remained in it would be
transferred to the new sovereign. By the stipulation of the treaty, however,
three courses were left open to the inhabitants. One was to remove to the
Republic of ■Mexico; in which event they would, of course, continue to be
citizens of Mexico; the second was to remain in the ceded Territory and retain
the title and rights of Mexican citizens; the third, to become citizens of the
United States.
That, the treaty was intended to
operate directly, and of itself to fix the status of those inhabitants, does
not admit of a douM. That it had that effect, so far
as those who elected t* remain citizens of Mexico are concerned, is obvious, aM there is no reason for a different construction as to
those who elected to become citizens of the United States. In fhct, this would have been the natural consequence of the'treaty (so far as was possible under our form *341of Government), and it
required tbis special treaty stipulation to enable tbe inhabitants to remain in the ceded territory and owe no
allegiance to the new Government. But for this provision the Mexicans who
remained would not have been considered aliens, but would have been vested with
such rights of citizenship as can be conferred upon the inhabitants of a
Territory who are not citizens of any of the States of the Union. But, by the
terms of the treaty, those who did not elect to remain citizens of Mexico, lost
their rights as Mexican citizens, at least as soon as the election was made,
and the conclusion is irresistible that they acquired (so far as was possible)
the rights of citizens of the United States at the time they lost those of
Mexican citizens; otherwise they remained a people without a country.
This article of the treaty would
probably never have received a different construction from that here given,
were it not for the following article, which has been strangely misconstrued.
It provides that these Mexicans in the ceded Territories, who do not retain the
character of Mexican citizens, shall be incorporated into the Union of the
United States, and be admitted at the proper time (to be judged of by the
Congress of the United States), to the enjoyment-of all the rights of citizens
of the United States, according to the principles of the Constitution. The
Union with which they are to be incorporated is, of course, the Union of the
States composing the United States, and by which.Union
that Government is created. They can. be incorporated
into this Union only as a State, and the admission of the people to the full
rights as citizens of the United States follows as the consequence of that act;
and this is the only way in which it was possible for Congress to confer upon
them all the rights of citizens of the United States. For this purpose it in
not necessary to .inquire whether, under our form of Government, there can be a
citizen of the United States who is not a citizen of one of the States. I have
no doubt that those born-in the Territories, or in the District of Columbia,
are sd far citizens as *342to entitle them to the
protection guaranteed to citizens of tbe United
States in tbe Constitution, and to tbe shield of nationality abroad ;
but it is evident that they have not tbe political
rights which are vested in citizens of the States. They are not constituents of
any community in which is vested any sovereign power of government. Their
position partakes more of the character of subjects than of citizens. They are
subject to the laws of the United States, but have no voice in its management.
If they are allowed to make laws, the validity of these laws is derived from
the sanction of a Government in which they are not represented. Mere
citizenship they may have, but the political rights of citizens they cannot
enjoy until they are organized into a State, and admitted into the Union.
But the United States cannot acquire
territory to hold and rule permanently in full government. Such acquisitions
are in pursuance of its power to admit new States, and every Territory thus
acquired must be held to have been acquired for the purpose of being erected
into a State. Indeed that may be considered as the last act in the acquisition
of the Territory, for it is then for the first time incorporated into the
Union. Once admitted into the Union it requires no Act of Congress to define
the rights of the inhabitants who were recognized as members of the community
organized into a State, “because the Constitution itself defines the relative
rights, powers and duties of the State, and the citizens of the State, and the
General Government.” (Scott v. Sandford,
19 How. 446.)
Having admitted into the Union a
State, of which these inhabitants were constituent members, Congress could do
no more. It has conferred upon them all the rights of citizens,
or rather it has recognized these rights in the only mode- provided by the
Constitution which was applicable to them.
The question involved in this case
seems to have been decided in the case of the American Insurance Company v.
Canter, (1 Peters, 511.) This case involved the validity of a
territorial law of Florida, establishing a certain Court. *343Chief Justice Marshall,
in pronouncing the opinion of the Court, sajs: “On the 2d 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 cedes to the United States by this treaty shall be incorporated in the
Union of the United States as soon as may be consistent with the principles of
the Federal Constitution; and admitted to the enjoyment of the privileges,
rights, and immunities of the citizens of the United States.’”
“This treaty is the law of the land,
and admits the inhabitants of Florida to the enjoyment of the privileges,
rights and immunities of 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. In the meantime, Florida
continues to be a Territory of the United States, governed by virtue of that
clause in the Constitution which empowers Congress ‘to make all needful rules
and regulations respecting the territory or other property belonging to the
United States.’”
But it is suggested by counsel for relator, that if this construction be correct, then the
Constitution of California is in conflict with the ninth article of the treaty,
for that article provides that all Mexican citizens who elect to become
citizens of the United States, shall be admitted to all the rights of citizens,
while the Constitution discriminates. It declares that white male citizens of
Mexico, who have elected to become citizens of the United States, shall be
electors, while all, without distinction of color, including Indians, were
Mexican citizens, and entitled to'vote by the laws of
Mexico.
If this be so, it does not follow
that the respondent is not a citizen of the United States, but that the
elective franchise is denied to certain persons who had been entitled to its
exercise under the laws of Mexico. The possession of all political rights is
not essential to citizenship. When Con*344gress admitted California
as a State, the constituent members of tbe State, in tbeir aggregate capacity, became vested witb
tbe sovereign powers of government, “according to tbe principles of tbe
Constitution.” They then bad tbe right to prescribe tbe qualifications of electors,
and it is no violation of tbe treaty that these
qualifications were such as to exclude some of tbe
inhabitants from certain political rights. They were excluded in accordance witb tbe principles of tbe Constitution.
Tbe respondent is clearly a citizen of tbe
United States, and tbe judgment should be affirmed.
So
ordered.
By Erodes, C. J.: I concur in tbe judgment.
Sprague, J., expressed no opinion.