CHAPTER V

AN HISTORICAL SKETCH OF LEGISLATION DEALING WITH NATURALIZATION

AMERICA aims to be a thoroughgoing democracy. This is its ideal. The progressive achievement of this ideal is shown by the Constitution of the United States; by legislation regarding immigration and naturalization; by the Civil War; and by the amendments to the Constitution, and to the laws of naturalization immediately following that war. America does not wish any section of its people to be a subject class deprived of political rights. Every man permanently residing here should, according to our ideal, be a citizen, sharing in the responsibilities and duties no less than in the privileges of citizenship. The idea of a political aristocracy lording it over an ignorant and politically helpless mass of inferiors is repugnant to us. All government, we hold, derives its right to be and to act from the expressed will of the people and of all the people.

From the very beginning of our national history the democratic ideal was in control. Provision was promptly made whereby aliens who came to us for permanent residence might in due time enter into the fellowship of freemen guiding their own political destinies.

The history of our laws dealing with naturalization throws important light upon these matters and helps us to see what should be our treatment of Asiatics permanently residing in our land.

The Constitution (Art. I, Sec. 8) provides that "Congress shall have power to establish an Uniform rule of naturalization," and also "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.'

In harmony with this provision, the first law of naturalization was passed March 26, 1790. It provided that "Any alien being a free white person who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof." Between 1790 and 1854 Congress passed fifteen laws dealing with naturalization, the points at issue being exclusively the length of residence and other matters as to conditions for acquiring citizenship. In each case the phrase "free white person" was retained without discussion. The period of residence required as a qualification for the acquisition of citizenship varied from two to fourteen years.

The reason for the adoption of the phrase "free white person" was manifestly the conviction that Indians and slaves, since they did not understand our life and political system, were not freemen and, therefore, were not fitted to be members of the body

politic, nor to exercise the duties and responsibilities of citizenship.

The only reference, however, to a discussion throwing light upon this point that has been found occurs in F. G. Franklin's "Legislative History of Naturalization." In a heated debate (1795) to amend the law by lengthening the period of residence, Mr. Dexter (Massachusetts) suggested that aliens applying for citizenship who hold slaves shall first "renounce all right to hold such persons in slavery," on the ground that slaveholders were not fit persons to exercise the privileges of suffrage. This proposed amendment, however, was dropped because of its reflection upon slaveholders who were already citizens.

This makes it clear that the conscious purpose of the phrase "free white person" in the naturalization laws was to exclude slaves from citizenship.

At the close of the Civil War the naturalization law was amended to bring it into harmony with the principles established by that war. By the Act of July 14, 1870, Section 7, Congress provided that "The naturalization laws are hereby extended to aliens of African nativity and to persons of African descent." Attention should be called especially to the word "extended." Does not this word imply the removal of all race discrimination from our naturalization laws? The problem of Asiatic citizen

ship had not at that time been raised. That this was the intention of the law is evident from the fact that until recent times our federal and State governments used "white" as a catch-all term to include all who were not otherwise classified. This is seen to be the case both from the census reports and also from many legal documents and court decisions.

Judge Lowell discussed (December 24, 1909) the meaning of "white persons" exhaustively in the case In re Halladjian (174 Fed. 834, 841-844).

"From all these illustrations, which have been taken almost at random, it appears that the word 'white' has been used in colonial practice, in the federal statutes, and in the publications of the government to designate persons not otherwise classified." "Negroes have never been reckoned white; Indians seldom. At one time Chinese and Japanese were deemed to be white, but are not usually reckoned so to-day." "After the majority of Americans had come to believe that great differences separated the Chinese and later the Japanese from other immigrants, these persons were no longer classified as white; but while the scope of its inclusion has thus been somewhat reduced, 'white' is still the catch-all word which includes all persons not otherwise classified."

In 1873 the General Statutes of the United States underwent a thorough revision, the Act of approval being dated June 22, 1874. Title (Chapter) XXX of the Revised Statutes, dealing

white as

Catch-all while = other

with naturalization, reaffirmed the Act of July 14, 1870, in the following words:

"SEC. 2169. The provisions of this Title shall apply to aliens of African nativity and to persons of African descent."

It was manifestly the intent of Congress to use the terms "aliens of African nativity" and "persons of African descent" in an enlarging and not in a restrictive sense. When, however, it was discovered that the "Revised Statutes" replaced all earlier legislation and were the sole authority for legal practice, it was at once apparent that no provision had been made for the naturalization of any white persons. Those who were being naturalized were receiving citizenship without authority of law! An amending Act was accordingly passed (February 18, 1875) which read:

"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." (U. S. Revised Statutes, Title XXX, Section 2169.) Under these laws, therefore, of 1870, 1874, and 1875, it is clear that rights of naturalization were given to every alien otherwise qualified regardless of race. For, as we have seen, they specify or imply only two classes of aliens who are to be naturalized, "Whites" and "Africans." And since And since "white" is a "catch-all word to include all who are not