IN RE RODRIGUEZ.

81 Federal Reporter, 337. 1897.

[UNITED STATES District Court; Western District of Texas.] At the May term, 1896, of this court, Ricardo Rodriguez, a citizen of Mexico, filed an application, in due form, by which he sought to become a naturalized citizen of the United States. Two affidavits, embodying the essential requisites prescribed by the naturalization laws, accompanied the application, and also a copy of the affidavit made by the applicant, and filed in the county court of Bexar County, Tex., January 25, 1893, in which he declared his intention to become a citizen of the United States.

MAXEY, District Judge, after stating the case, delivered the following opinion:

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 forty-nine 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 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 coppercolored natives of America, or the yellow or tawny races of Asiaties, 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, Nian 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 the purpose of the amendment extending the right of naturalization to Africans and persons of African descent was to exclude Chinese from the benefits of naturalization. To quote his own language:

"Many other senators spoke pro and con on the question, this being the point of the contest, and these extracts being fair examples of the opposing opinions. . . . It was finally defeated [the amendment to strike the word 'white' from the naturalization laws]; and the amendment cited, extending the right of naturalization to the African only, was adopted. It is clear from these proceedings that Congress retained the word 'white' in the naturalization 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. I 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. The 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 the 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 members 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 of the United States shall admit Chinese to citizenship; and all laws 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 white 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 material to inquire to what 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-blooded 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 debarred 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 the meaning and intent of the law, his application should be granted, notwithstanding the letter of the statute may be against him.

[Various treaties and other public acts of the United States are referred to, bearing upon citizenship of persons residing in the territory acquired by the United States from Mexico.]

When all the foregoing laws, treaties, and constitutional provisions are considered, which either affirmatively confer the rights of citi zenship 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.

[THIS was an action brought in the Circuit Court of the United States for the District of Massachusetts, by Hale against Baldwin, on a promissory note.

Baldwin executed at Boston in the State of Massachusetts his promissory note for two thousand dollars, payable there to his own order, and subsequently indorsed such note to Hale. Subsequently Baldwin had a certificate of discharge in a proceeding in the Court of

Insolvency of the State of Massachusetts, which certificate embraced by its terms all contracts to be performed within the State of Massachusetts; but in this insolvency proceeding Hale did not prove his debt nor take any part.

At the time of the execution of the note, and also at the commencement of this suit, Hale was a citizen of the State of Vermont, and Baldwin was a citizen of the State of Massachusetts.

Baldwin relied on the certificate of discharge in the insolvency proceeding as a bar to the action, but the court below did not sustain this contention and rendered judgment against him. Whereupon he brought the case to this court by writ of error to have a determination by this court of the correctness of the ruling of the lower court as to the effect of this discharge upon the indebtedness to Hale.]

MR. JUSTICE CLIFFORD, after stating the case, delivered the opinion of the court..

Contract was made in Boston, and was to be performed at the place where it was made, and upon that ground it is contended by the defendant that the certificate of discharge is a complete bar to the action. But the case shows that the plaintiff was a citizen of Vermont, and inasmuch as he did not prove his debt against the defendant's estate in insolvency, nor in any manner become a party to those proceedings, he insists that the certificate of discharge is a matter inter alios, and wholly insufficient to support the defence.

Adopting the views of the court in Scribner et al. v. Fisher, 2 Gray, 43, the defendant concedes that the law is so, as between citizens of different States, except in cases where it appears by the terms of the contract that it was made and must be performed in the State enacting such insolvent law. Where the contract was made and is by its terms to be performed in the State in which the certificate of discharge was obtained, the argument is, that the discharge is entirely consistent with the contract, and that the certificate operates as a bar to the right of recovery everywhere, irrespective of the citizenship of the promisee. Plaintiff admits that a majority of the Supreme Court of Massachusetts, in the case referred to, attempted to maintain that distinction, but he insists that it is without any foundation in principle, and that the decisions of this court in analogous cases are directly the other way.

Controversies involving the constitutional effect and operation of State insolvent laws have frequently been under consideration in this court, and unless it be claimed that constitutional questions must always remain open, it must be conceded, we think, that there are some things connected with the general subject that ought to be regarded as settled and forever closed.

State legislatures have authority to pass a bankrupt or insolvent law, provided there be no act of Congress in force establishing a 1 uniform system of bankruptcy, conflicting with such law; and, provided the law itself be so framed, that it does not impair the obliga

tion of contracts. Such was the decision of this court in Sturges v. Crowninshield, 4 Wheat. 122, and the authority of that decision has never been successfully questioned. Suit was brought in that case against the defendant as the maker of two promissory notes. They were both dated at New York, on the 22d day of March, 1811, and the defendant pleaded his discharge under an act for the benefit of insolvent debtors and their creditors, passed by the legislature of New York subsequently to the date of the notes in controversy. Contracts in that case, it will be observed, were made prior to the passage of the law, and the court held, for that reason, that the law, or that feature of it, was unconstitutional and void, as impairing the obligation of contracts within the meaning of the Constitution of the United States. Suggestion is made that the ruling of the court in the case of McMillan v. McNeill, 4 Wheat. 209, decided at the same term, asserts a different doctrine, but we think not, if the facts of the case are properly understood.

Recurring to the statement of the case, it appears that the contract was made in Charleston, in the State of South Carolina, and it is true that both parties resided there at the time the contract was made, but the defendant subsequently removed to New Orleans, in the State of Louisiana, and it was in the latter State where he obtained the certificate of discharge from his debts. He was also one of a firm doing business in Liverpool, and a commission of bankruptcy had been issued there, both against him and his partner, and they respectively obtained certificates of discharge. Suit was brought in the District Court for the District of Louisiana, and the defendant pleaded those certificates of discharge in bar of the action, and the plaintiff demurred to the plea. Under that state of the case and of the pleadings, the court held that the certificate of discharge obtained in the State of Louisiana was no defence to the suit, and very properly remarked that the circumstance that the State law was passed before the debt was contracted made no difference in the application of the principle. Bearing in mind that the plaintiff was a citizen of South Carolina, and that the contract was made there, it is obvious that the remark of the court is entirely consistent with the decision in the former case.

Secondly, the court also held that a discharge under a foreign bankrupt law was no bar to an action in the courts of the United States, on a contract made in this country. Speaking of that case, Mr. Justice Johnson afterwards remarked that it decided nothing more than that insolvent laws have no extra-territorial operation upon the contracts of other States, and that the anterior or posterior character of the law with reference to the date of the contract makes no difference in the application of that principle. Eight years later the question, in all its phases, was again presented to this court, in the case of Ogden v. Saunders, 12 Wheat. 213, and was very fully examined. Three principal points were ruled by the court. First, the court