Brief for The United States

The Circuit Court of Appeals for the Ninth Circuit has certified to this court the two following questions:

1. Is a high-caste Hindu of full Indian blood, born at Amrit Sar, Punjab, India, a white person within the meaning of Section 2169, Revised Statutes?

2. Does the Act of February 25, 1917, 39 Stat. 875, Section 3, disqualify from naturalization as citizens those Hindus, now barred by that act, who had lawfully entered the United States prior to the passage of said act?

This cause came to the Circuit Court of Appeals upon appeal by the United States from a decree rendered by the District Court for the District of Oregon dismissing a bill brought by the United States to cancel a certificate of citizenship issued to Bhagat Singh Thind in said court. Bhagat Singh Thind is a high caste Hindu of full Indian blood and was naturalized in the District Court of the United States for the District of Oregon on November 18, 1920, over the objection of the United States. Thereafter, the United States filed a bill in equity to cancel his certificate of citizenship on the ground that it was illegally procured, in that the applicant, being a Hindu, is not a white person and not lawfully entitled to naturalization. The District Court dismissed the bill for the reason that the defendant was a Hindu and entitled under the laws of the United States to citizenship. He had lawfully entered the United States prior to the exclusion act of February 25, 1917, and the court held that that act did not prevent the naturalization of a person then lawfully in the United States.

A Hindu is not a white person within the meaning of Section 2169 of the Revised Statutes, and therefore not eligible for naturalization.

Inasmuch as this court has so recently considered in the Ozawa case, decided November 13, 1922, the general meaning of Section 2169 of the Revised Statutes, no extended discussion of the naturalization laws seems to be necessary. In that case it was held that Section 2169 is still in force and limits the right of naturalization to those who are “free white persons” within the meaning of that section, and a Japanese alien was therefore held ineligible. This court found that for many years the Federal and State courts, in an almost unbroken line, had held that the words “white person” were meant to indicate only what is “popularly” known as the Caucasian race, and said:

“With the conclusion reached in these several decisions we see no reason to differ.”

Mr. Justice Sutherland, speaking for the court, said:

The instant case shows the wisdom of the cautionary statement above quoted, for the court is now required to deal with one of the “border line cases,” at least when considered ethnologically. It is the consensus of opinion of ethnologists that the high caste Hindus, of which Bhagat Singh Thind is one, are members of what is commonly recognized as the Aryan family. These authorities are set forth in the elaborate and able brief filed by the respondent in this case and seem to afford little ground for challenge, but the decision in the Ozawa case did not establish a sharp line of demarcation but rather a zone of more or less debatable ground, leaving individual cases to be determined as they arose. After all has been said, the question still remains one of statutory construction, and primarily the point to be decided is the meaning which the words “free white persons” had in the minds of those who in 1790 first used those words in the statute of the United States. (Stat. 103, ch. 3.)

This question perhaps may be extended so as to include in its consideration the meaning attached to the words in 1870, when the naturalization laws were extended to aliens of African nativity and to persons of African descent, and in 1875, when the words “free white persons” were restored to the Revised Statutes after they had been inadvertently omitted from the first edition in 1873. The Act of July 14, 1870, 16 Stat. 254, provided “that the naturalization laws are hereby extended to aliens of African nativity and to persons of African descent.” When that act was under discussion, an amendment was offered by Charles Sumner to strike out the word “white.” But the amendment was rejected through the efforts of the Western senators, who objected that it would authorize the naturalization of “Asiatics.” The Hindus are undoubtedly Asiatics. Congressional Globe for 1869–70, Pt. 6, pp. 5121–5125, 5163, 5176–5177. In the discussion the word “Asiatics” was used repeatedly, and, while the senators who used the word may only have had in mind Chinese or Japanese rather than the people of India, nevertheless, the term “Asiatics” was that which seemed to express their policy of exclusion. At that time the only question which threatened to become one of practical importance was the Chinese question. There was practically no other Asiatic immigration.

By act of February 18, 1875, 18 Stat. 316, 318, ch. 80, the error in the first edition of the Revised Statutes in omitting the words “free white persons” was corrected. The committee on the Revision of the Laws had submitted a bill to correct numerous similar omissions. There was considerable discussion, and again the word “Asiatics” was the word commonly used in the debate. 3 Congressional Record, 1081.

In the Senate Mr. Sargent said:

Similarly, Mr. Ferry said:

So the words inadvertently omitted in 1870 were restored as they had stood since 1790, apparently with the understanding that any change, if made, would necessitate a discussion and final settlement of the whole question of naturalizing Asiatics, a question which Congress obviously did not care to consider at that time. The words “free white persons” may be regarded therefore as having the same meaning which they had in 1790, in the 1ight of the construction which had been placed upon them since, and as understood by Congress in 1875 when it refused to open up the question of admitting Asiatics to citizenship.

Naturalization is therefore restricted to “free white persons.” Are these words merely words intended to exclude undesirables, or must they be considered as words affirmatively describing the class to be admitted. This question was answered in the Ozawa case, as follows:

It is therefore necessary to determine whom they intended to include, not whom they intended to exclude. If they meant to include only men of the white races, does it follow that they intended to include all who could possibly be classified by ethnologists as white? We think not. The words “free white persons” meant to them men representative of a composite type, a combination of color, race, and social institutions, with which they were familiar, men who collectively had developed and were maintaining a civilization of which they themselves were a part, the civilization of white men.

According to the Encyclopedia Brittanica,11th ed., vol.14, title “India,” India is “inhabited by congeries of different races,” and had according to the census of 1901 a population of over 294,000,000. This vast mass of people does not constitute a single nationality, neither is it divided into a number of different nations of distinct blood or distinct language. They are drawn into four well-marked elements: (1) The non-Aryan tribes; (2) the Aryan or Sanskrit-speaking race; (3) the great mixed population which has grown out of the fusion of the two previous elements; (4) and the Mahommedan invaders from the Northwest. “These four elements, however, have become inextricably mixed together, some predominating in one portion of the country, some in another, while all are found in every province and native state.” For this reason, it is not easy to determine what is a “Hindu of full Indian blood.” (p. 382.)

The chief modern divisions of the population do not follow the lines of blood and language, but of religion and caste. Of the four elements just mentioned the oldest are the wild tribes of Central India who represent, probably, the original inhabitants of the country and number about 11,000,000. Next come the Dravidians of the South, about 54,000,000. These are probably the aborigines. Thirdly, the Aryans inhabiting what is known as Hindustan proper, and of these only the Brahmans and Rajputs, about 20,000,000, are believed to be of pure Aryan blood. The remaining 135,000,000 natives represent the fusion of Aryan and non-Aryan elements. Fourthly, come the Mahommedans numbering some 62,000,000, many of whom are descendants of Arab, Afghan and Mogul invaders and the others are converts made to Islam in the course of centuries of Mahommedan rule. (p. 382.)

According to this same authority (p. 383) the chief Indian religions with the number of their followers are, approximately:

According to the linguistic survey of India, no fewer than 147 distinct languages are recorded as vernacular in different parts of India (p. 383).

The real beginning of the British Indian Empire dates from 1757, the Battle of Plassey, fought on the 23d of June of that year. The military genius of Clive and the administrative genius of Warren Hastings thereafter established upon a firm foundation the rule which has lasted ever since, but down to 1790 and for many years thereafter British domination in India was really exercised by the East India Company. India, with its millions of people, was regarded merely as a profitable field for commercial exploitation, a source of untold wealth. To be sure, Christian missionaries were working there, but their efforts were directed toward people whom they somewhat superciliously looked upon as “heathen,” just as the Greeks regarded all non-Greeks as “barbarians.” The people of India were a subject-race, and, while the ideals of liberty, equality and fraternity were being preached in Europe and America, there is no reason to believe that any one seriously extended their applications to the people of India, or believed that those people were of the kind to be assimilated in citizenship in Western civilization. Even the unselfish interest of the missionaries was rather in the welfare of souls in the life to come, than in political and social fellowship in this life.

Two years before the passage of the Act of 1790 Edmund Burke, addressing the House of Lords in the Warren Hastings trial, said:

These words were spoken by a friend of America, as well as of India and its people. They were probably well known to those who initiated our naturalization policy, for the Warren Hastings trial was one of the great events of that day. They show that at the time the first naturalization law was passed the Hindus were regarded as a people wholly alien to Western civilization and utterly incapable of' assimilation to Western habits and customs, mode of life, political and social institutions. Is it to be believed that our forefathers had, even in a remote way, any idea that these people would ever come to our land or wish to become our citizens. The words of our naturalization laws must be construed as affording a positive rule of inclusion, not a negative rule of exclusion. The men of 1790 never dreamed of an immigration from India, and, if that be true, it carries with it the inevitable conclusion that they did not intend to provide for the naturalization of people from India. They offered citizenship to men of the kind they knew and hoped and expected would come, not to those they did not know and did not expect to come. Citizenship has always been deemed a choice possession, and it is not to be presumed that our fathers regarded it lightly. It could only be obtained by those to whom it was given, and the men of 1790 intended it only for those whom they knew and regarded as worthy to share it with them,—men of their own type—men in a general way living under the same social conditions, sharing or wishing to share the same political institutions and capable of entering into the life of this country in a spirit of sympathy and cooperation. The word “free” cannot be wholly ignored. It was not merely the opposite of African slavery. It referred to a type of civilization. All peoples whom they knew in this sense were of the type commonly and popularly called “free white” men, and it is undoubtedly true that the word “white” was by them indicative of type rather than color. Of course, it was exclusive of brown, yellow, red, and black, but, we contend, inclusive only of such men described by the adjective “white” as belonged to a civilization known as the white civilization. Such was the civilization of Europe. While the population of Europe comprised many racial families, and differed in the dark skinned races of the Mediterranean and the fair blond Nordics, nevertheless, its civilization was that which had been developed by the race of white men and differed from the civilization of Asia in almost every distinguishing peculiarity. The white races had put their brand upon organized social and political life, and the social and political life, in turn, had put its assimilating mark upon all who had come within its influence.

Thus the term “white men” had come to represent men of the white civilization, as distinguished from the Eastern or Oriental civilization. This does not imply the drawing of any narrow or bigoted racial lines, but a broad classification inclusive of all commonly called “white” and exclusive of all not commonly so-called.

It could never have been contemplated by those who framed the statute that naturalization should be thrown open to the teeming millions of Asia, subject only to the presentation of a certificate by some student of ethnology to the effect that the particular applicant, whatever might be his customs, religion, habits of thought, language, could probably trace his ancestry back through thousands of years to membership in the race then coming to be called for the first time “Caucasian.” It must be remembered that. Blumenbach first used this word in his classification of races in the year 1781. It is possible, but not probable, that the members of Congress in 1790 were unaware of Blumenbach’s famous and workable classification, which endured to this day, but it is equally clear, indeed, we must assume that they had in mind a definite conception of the type of men which they wished to become citizens of this country and which they described by the term “white men.” In the case of Sadar Bhagwab Singh (246 Fed. 496), Judge Dickinson, in the District Court for the Eastern District of Pennsylvania, denied the application of a member of the Hindu race and wrote a long and scholarly opinion which seems to us to be sound.·He said (p. 498):

In United States v. Balsara, 180 Fed. 694, the Circuit Court of Appeals for the Second Circuit affirmed an order admitting to citizenship a Parsee. In in re Halladjain, 174 Fed. 834, Judge Lowell, in the Circuit Court of the District of Massachusetts, admitted to citizenship an Armenian. In in re Mohan Singh, 257 Fed. 209, the District Court for the Southern District of California admitted to citizenship a Hindu, declining to follow the opinion of Judge Dickinson in the Sadar Bhagwab Singh case, supra. In in re Mozumdar, 207 Fed. 115, the District Court for the Eastern District of Washington admitted to citizenship another Hindu. ln these cases the different judges wrote long opinions, carefully construing the question from many angles. Indeed, the amount of learning and patient research which has been devoted to consideration of these questions has exhausted the literature upon the subject but has only added to its difficulty.

The Ozawa case has clarified the situation much, but, as intimated in that opinion, the field for discussion is still a wide one. We can only say, in summary, that while, in a general way, naturalization is only open to people belonging to the race commonly called Caucasian, nevertheless it is not open to all whom the research of scholars assumes to be of that race. The very name is a misnomer and an accident. The test must be a more open and obvious one than that. It is to be found not by the researches of scholarship but by the practical application of the good sense and common understanding of ordinary men in the light of history and experience. We think that only such members of the Caucasian race should be held eligible for naturalization as may be found to be representatives of a white civilization. Viewed in this way the people of India, from whatever stock they may have sprung, cannot be included. Though they may have kept their blood pure for centuries, nevertheless, the centuries have 1removed them far from political fellowship with the white men of the Western World.

Neither in popular speech nor in literature has the term “white man'” ever been used as appropriate to describe the Hindu. On the contrary, they are popularly classified as of the “brown” race. Whatever the Hindu may be to the ethnologist, and ethnology was an almost unknown science in 1790,—in the popular conception he is alien to the white race and part of the “white man's burden.” This phrase of Kipling, the great poet of the imperial destinies of the white race, has become part of the language and understanding of the English-speaking race. And, while the problem of British rule in India is not our affair, whatever may be the white man’s burden, the Hindu does not share it, rather he imposes it. From Edmund Burke to Rudyard Kipling there has been no change in this respect. To call him a white man would be to give a judicial interpretation contrary to the universal acceptation of the term.

To up, I submit that, so far as the policy of exclusion from the benefits of naturalization can be expressed in a phrase, the expression in our laws “a free white person” to which the Congress has now adhered for a hundred and thirty years, denominates what is historically known as the men of the Western civilization. What is this Western civilization cannot be wholly determined upon either geographical, philological, or ethnological bases. It can only be determined in the light of history.

Western civilization, which now includes the Americas, is something more than European civilization; although the largest field of its operations was Europe. It is something more than the Aryan family; for the Semitic races,—including the Phoenician, Assyrian, Arabian, Chaldean, Aramaic and Hebrew,—which are not Indo-European or Aryan, are not excluded from it. Indeed, our Western civilization began with the Semitic races in Egypt, extended to Assyria and Chaldea, passed thence into Crete and Greece, and finally found its dominating expression in the great Roman Empire, which was essentially a Mediterranean civilization. Thence it proceeded northward, into the forests of Gaul, and crossed the Channel into England.

Western civilization may, therefore, include so much of the Near East as contributed to, and was assimilable, with the development of Western civilization of Greece and Rome. Language, literature, religion, government and races, both of the Aryan and of the Semitic roots, became blended into the European civilization of Rome, and were extended by the genius of Columbus to the Americas.

This is the Western civilization, sometimes denominated the European civilization, which our fathers knew and from which they were willing to recruit the citizenship of the Republic; but the Far East, including India, was not regarded by them as a part of such civilization. To them, naturalization of the Far East Asiatics was unthinkable, because immigration of the teeming millions of Asia into America was likewise unthinkable.

All this is said with full appreciation of the wonderful civilization of the Far East, such as existed when our Government was formed, and still exists to this day in the great empires of Japan, China and India. Undoubtedly, our Western civilization has always maintained a supercilious and provincial attitude towards these older civilizations, which were in full flower before our Western civilization began, and which may possibly be in existence if and when our Western civilization shall wane. When Europe was inhabited by peoples who were little removed from the neolithic man and were virtually savages, China and India enjoyed a literature and art which, in some respects, have not yet been surpassed in our somewhat arrogant Western civilization. All this is true; but it does not alter the fact that the policy of America has been, in the matter of citizenship, only to include those of the Western civilization, with which it is assimilable and of which it is one of the greatest products.

We do not think it can fairly be claimed that the Immigration Act of February 5, 1917, 39 Stat. 875, necessarily operates as matter of law to disqualify from naturalization Hindus who were at the time of the passage of that Act lawfully within the country, if they were eligible before. It does indicate, however, the attitude of Congress toward Asiatic people. It does not mention Hindus by name but prohibits immigration of natives of the continent of Asia, within certain limits of latitude and longitude which include the whole of India.

The first question should be answered in the negative, and that makes it unnecessary to answer the second.

James M. Beck, Solicitor General

Alfred A. Wheat, Special Assistant to the Attorney General

January 1923