1. A high caste Hindu, of full Indian blood, born at Amrit Sar,
Punjab, India, is not a "white person" within the meaning of
Rev.Stats., § 2169, relating to the naturalization of aliens. P.
261 U. S.
207.
2. "Free white persons," as used in that section, are words of
common speech, to be interpreted in accordance with the
understanding of the common man, synonymous with the word
"Caucasian" only as that word is popularly understood. P.
261 U. S. 214.
Ozawa v. United States, 260 U. S. 178.
3. The action of Congress in excluding from admission to this
country all natives of Asia within designated limits, including all
of India, is evidence of a like attitude toward naturalization of
Asians within those limits. P.
261 U. S.
215.
Questions certified by the circuit court of appeals, arising
upon an appeal to that court from a decree of the district court
dismissing, on motion, a bill brought by the United ,states to
cancel a certificate of naturalization.
Page 261 U. S. 206
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This cause is here upon a certificate from the Circuit Court of
appeals requesting the instruction of this Court in respect of the
following questions:
"1. Is a high-caste Hindu, of full Indian blood, born at
Amritsar, Punjab, India, a white person within the meaning of §
2169, Revised Statutes? "
Page 261 U. S. 207
"2. Does the Act of February 5, 1917 (39 Stat. 875, § 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?"
The appellee was granted a certificate of citizenship by the
District Court of the United States for the District of Oregon,
over the objection of the Naturalization Examiner for the United
States. A bill in equity was then filed by the United States
seeking a cancellation of the certificate on the ground that the
appellee was not a white person, and therefore not lawfully
entitled to naturalization. The district court, on motion,
dismissed the bill (268 F. 683), and an appeal was taken to the
circuit court of appeals. No question is made in respect of the
individual qualifications of the appellee. The sole question is
whether he falls within the class designated by Congress as
eligible.
Section 2169, Revised Statutes, provides that the provisions of
the Naturalization Act "shall apply to aliens being free white
persons and to aliens of African nativity and to persons of African
descent."
If the applicant is a white person within the meaning of this
section, he is entitled to naturalization; otherwise not. In
Ozawa v. United States, 260 U. S. 178, we
had occasion to consider the application of these words to the case
of a cultivated Japanese, and were constrained to hold that he was
not within their meaning. As there pointed out, the provision is
not that any particular class of persons shall be excluded, but it
is, in effect, that only white persons shall be included within the
privilege of the statute.
"The intention was to confer the privilege of citizenship upon
that class of persons whom the fathers knew as white, and to deny
it to all who could not be so classified. It is not enough to say
that the framers did not have in mind the brown or yellow races of
Asia. It is necessary to go farther and be able to say that, had
these particular
Page 261 U. S. 208
races been suggested, the language of the act would have been so
varied as to include them within its privileges"
-- citing
Dartmouth College v.
Woodward, 4 Wheat. 518,
17 U. S. 644.
Following a long line of decisions of the lower federal courts, we
held that the words imported a racial, and not an individual, test,
and were meant to indicate only persons of what is popularly known
as the Caucasian race. But, as there pointed out, the conclusion
that the phrase "white persons" and the word "Caucasian" are
synonymous does not end the matter. It enabled us to dispose of the
problem as it was there presented, since the applicant for
citizenship clearly fell outside the zone of debatable ground on
the negative side; but the decision still left the question to be
dealt with, in doubtful and different cases, by the "process of
judicial inclusion and exclusion." Mere ability on the part of an
applicant for naturalization to establish a line of descent from a
Caucasian ancestor will not
ipso facto and necessarily
conclude the inquiry. "Caucasian" is a conventional word of much
flexibility, as a study of the literature dealing with racial
questions will disclose, and, while it and the words "white
persons" are treated as synonymous for the purposes of that case,
they are not of identical meaning --
idem per idem.
In the endeavor to ascertain the meaning of the statute, we must
not fail to keep in mind that it does not employ the word
"Caucasian," but the words "white persons," and these are words of
common speech, and not of scientific origin. The word "Caucasian"
not only was not employed in the law, but was probably wholly
unfamiliar to the original framers of the statute in 1790. When we
employ it, we do so as an aid to the ascertainment of the
legislative intent, and not as an invariable substitute for the
statutory words. Indeed, as used in the science of ethnology, the
connotation of the word is by no means clear, and the use of it in
its scientific sense as an equivalent
Page 261 U. S. 209
for the words of the statute, other considerations aside, would
simply mean the substitution of one perplexity for another. But, in
this country, during the last half century especially, the word, by
common usage, has acquired a popular meaning, not clearly defined
to be sure, but sufficiently so to enable us to say that its
popular, as distinguished from its scientific, application is of
appreciably narrower scope. It is in the popular sense of the word,
therefore, that we employ is as an aid to the construction of the
statute, for it would be obviously illogical to convert words of
common speech used in a statute into words of scientific
terminology when neither the latter nor the science for whose
purposes they were coined was within the contemplation of the
framers of the statute or of the people for whom it was framed. The
words of the statute are to be interpreted in accordance with the
understanding of the common man from whose vocabulary they were
taken.
See Maillard
v.Lawrence, 16 How. 251,
57 U. S.
261.
They imply, as we have said, a racial test; but the term "race"
is one which, for the practical purposes of the statute, must be
applied to a group of living persons now possessing in common the
requisite characteristics, not to groups of persons who are
supposed to be or really are descended from some remote common
ancestor, but who, whether they both resemble him to a greater or
less extent, have at any rate ceased altogether to resemble one
another. It may be true that the blond Scandinavian and the brown
Hindu have a common ancestor in the dim reaches of antiquity, but
the average man knows perfectly well that there are unmistakable
and profound differences between them today, and it is not
impossible, if that common ancestor could be materialized in the
flesh, we should discover that he was himself sufficiently
differentiated from both of his descendants to preclude his racial
classification with either. The question for determination
Page 261 U. S. 210
is not, therefore, whether, by the speculative processes of
ethnological reasoning, we may present a probability to the
scientific mind that they have the same origin, but whether we can
satisfy the common understanding that they are now the same or
sufficiently the same to justify the interpreters of a statute --
written in the words of common speech, for common understanding, by
unscientific men -- in classifying them together in the statutory
category as white persons. In 1790, the Adamite theory of creation
-- which gave a common ancestor to all mankind -- was generally
accepted, and it is not at all probable that it was intended by the
legislators of that day to submit the question of the application
of the words "white persons" to the mere test of an indefinitely
remote common ancestry, without regard to the extent of the
subsequent divergence of the various branches from such common
ancestry or from one another.
The eligibility of this applicant for citizenship is based on
the sole fact that he is of high-caste Hindu stock, born in Punjab,
one of the extreme northwestern districts of India, and classified
by certain scientific authorities as of the Caucasian or Aryan
race. The Aryan theory, as a racial basis, seems to be discredited
by most, if not all, modern writers on the subject of ethnology. A
review of their contentions would serve no useful purpose. It is
enough to refer to the works of Deniker (Races of Man, 317), Keane
(Man, Past and Present, 445, 446), and Huxley (Man's Place in
Nature, 278), and to the Dictionary of Races, Senate Document 662,
61st Congress, 3d Sess.1910-1911, p. 17.
The term "Aryan" has to do with linguistic, and not at all with
physical, characteristics, and it would seem reasonably clear that
mere resemblance in language, indicating a common linguistic root
buried in remotely ancient soil, is altogether inadequate to prove
common racial origin. There is, and can be, no assurance that the
so-called
Page 261 U. S. 211
Aryan language was not spoken by a variety of races living in
proximity to one another. Our own history has witnessed the
adoption of the English tongue by millions of negroes, whose
descendants can never be classified racially with the descendants
of white persons, notwithstanding both may speak a common root
language.
The word "Caucasian" is in scarcely better repute. [
Footnote 1] It is, at best, a
conventional term, with an altogether fortuitous origin, [
Footnote 2] which, under scientific
manipulation, has come to include far more than the unscientific
mind suspects. According to Keane, for example (The World's Peoples
24, 28, 307
et seq.), it includes not only the Hindu, but
some of the Polynesians [
Footnote
3] (that is, the Maori, Tahitians, Samoans, Hawaiians, and
others), the Hamites of Africa, upon the ground of the Caucasic
cast of their features, though in color they range from brown to
black. We venture to think that the average well informed white
American would learn with some degree of astonishment that the race
to which he belongs is made up of such heterogeneous elements.
[
Footnote 4]
Page 261 U. S. 212
The various authorities are in irreconcilable disagreement as to
what constitutes a proper racial division. For instance, Blumenbach
has five races; Keane, following Linnaeus, four; Deniker,
twenty-nine. [
Footnote 5] The
explanation probably is that "the innumerable varieties of mankind
run into one another by insensible degrees," [
Footnote 6] and to arrange them in sharply bounded
divisions is an undertaking of such uncertainty that common
agreement is practically impossible.
It may be, therefore, that a given group cannot be properly
assigned to any of the enumerated grand racial divisions. The type
may have been so changed by intermixture of blood as to justify an
intermediate classification. Something very like this has actually
taken place in India. Thus, in Hindustan and Berar, there was such
an intermixture of the "Aryan" invader with the dark-skinned
Dravidian. [
Footnote 7]
In the Punjab and Rajputana, while the invaders seem to have met
with more success in the effort to preserve
Page 261 U. S. 213
their racial purity, [
Footnote
8] intermarriages did occur producing an intermingling of the
two and destroying to a greater or less degree the purity of the
"Aryan" blood. The rules of caste, while calculated to prevent this
intermixture, seem not to have been entirely successful. [
Footnote 9]
It does not seem necessary to pursue the matter of scientific
classification further. We are unable to agree with the district
court, or with other lower federal courts, in the conclusion that a
native Hindu is eligible for naturalization under § 2169. The words
of familiar speech, which were used by the original framers of the
law, were intended to include only the type of man whom they knew
as white. The immigration of that day was almost exclusively from
the British Isles and Northwestern Europe, whence they and their
forebears had come. When they extended the privilege of American
citizenship to "any alien being a free white person," it was these
immigrants -- bone of their bone and flesh of their flesh -- and
their kind whom they must have had affirmatively in mind. The
succeeding years brought immigrants from Eastern, Southern and
Middle Europe, among them the Slavs and the dark-eyed, swarthy
people of Alpine and Mediterranean stock, and these were received
as unquestionably akin to those already here and readily
amalgamated with them. It was the descendants of these, and
Page 261 U. S. 214
other immigrants of like origin, who constituted the white
population of the country when § 2169, reenacting the
naturalization test of 1790, was adopted, and, there is no reason
to doubt, with like intent and meaning.
What, if any, people of primarily Asiatic stock come within the
words of the section we do not deem it necessary now to decide.
There is much in the origin and historic development of the statute
to suggest that no Asiatic whatever was included. The debates in
Congress during the consideration of the subject in 1870 and 1875
are persuasively of this character. In 1873, for example, the words
"free white persons" were unintentionally omitted from the
compilation of the Revised Statutes. This omission was supplied in
1875 by the act to correct errors and supply omissions. 18 Stat. c.
80, p. 318. When this act was under consideration by Congress,
efforts were made to strike out the words quoted, and it was
insisted, upon the one hand, and conceded upon the other, that the
effect of their retention was to exclude Asiatics generally from
citizenship. While what was said upon that occasion, to be sure,
furnishes no basis for judicial construction of the statute, it is
nevertheless an important historic incident which may not be
altogether ignored in the search for the true meaning of words
which are themselves historic. That question, however, may well be
left for final determination until the details have been more
completely disclosed by the consideration of particular cases as
they from time to time arise. The words of the statute, it must be
conceded, do not readily yield to exact interpretation, and it is
probably better to leave them as they are than to risk undue
extension or undue limitation of their meaning by any general
paraphrase at this time.
What we now hold is that the words "free white persons" are
words of common speech, to be interpreted in accordance with the
understanding of the common man, synonymous with the word
"Caucasian" only as that
Page 261 U. S. 215
word is popularly understood. As so understood and used,
whatever may be the speculations of the ethnologist, it does not
include the body of people to whom the appellee belongs. It is a
matter of familiar observation and knowledge that the physical
group characteristics of the Hindus render them readily
distinguishable from the various groups of persons in this country
commonly recognized as white. The children of English, French,
German, Italian, Scandinavian, and other European parentage quickly
merge into the mass of our population and lose the distinctive
hallmarks of their European origin. On the other hand, it cannot be
doubted that the children born in this country of Hindu parents
would retain indefinitely the clear evidence of their ancestry. It
is very far from our thought to suggest the slightest question of
racial superiority or inferiority. What we suggest is merely racial
difference, and it is of such character and extent that the great
body of our people instinctively recognize it and reject the
thought of assimilation.
It is not without significance in this connection that Congress,
by the Act of February 5, 1917, 39 Stat. 874, c. 29, § 3, has now
excluded from admission into this country all natives of Asia
within designated limits of latitude and longitude, including the
whole of India. This not only constitutes conclusive evidence of
the congressional attitude of opposition to Asiatic immigration
generally, but is persuasive of a similar attitude toward Asiatic
naturalization as well, since it is not likely that Congress would
be willing to accept as citizens a class of persons whom it rejects
as immigrants.
It follows that a negative answer must be given to the first
question, which disposes of the case and renders an answer to the
second question unnecessary, and it will be so certified.
Answer to question No. 1, No.
[
Footnote 1]
Dictionary of Races,
supra, p. 31.
[
Footnote 2]
2 Encyclopaedia Britannica (11th ed.) p. 113:
"The ill chosen name of Caucasian, invented by Blumenbach in
allusion to a South Caucasian skull of specially typical
proportions, and applied by him to the so-called white races, is
still current; it brings into one race peoples such as the Arabs
and Swedes, although these are scarcely less different than the
Americans and Malays, who are set down as two distinct races.
Again, two of the best marked varieties of mankind are the
Australians and the Bushmen, neither of whom, however, seems to
have a natural place in Blumenbach's series."
[
Footnote 3]
The United States Bureau of Immigration classifies all Pacific
Islanders as belonging to the "Mongolic grand division." Dictionary
of Races,
supra, p. 102.
[
Footnote 4]
Keane himself says that the Caucasic division of the human
family is "in point of fact the most debatable field in the whole
range of anthropological studies." Man: Past and Present, p.
444
And again:
"Hence, it seems to require a strong mental effort to sweep into
a single category, however elastic, so many different peoples --
Europeans, North Africans, West Asiatics, Iranians, and others all
the way to the Indo-Gangetic plains and uplands, whose complexion
presents every shade of color, except yellow, from white to the
deepest brown or even black."
"But they are grouped together in a single division because
their essential properties are one, . . . their substantial
uniformity speaks to the eye that sees below the surface . . . we
recognize a common racial stamp in the facial expression, the
structure of the hair, partly also the bodily proportions, in all
of which points they agree more with each other than with the other
main divisions. Even in the case of certain black or very dark
races, such as the Bejas, Somali, and a few other Eastern Hamites,
we are reminded instinctively more of Europeans or Berbers than of
negroes, thanks to their more regular features and brighter
expression."
Id., 448.
[
Footnote 5]
Dictionary of Races,
supra, p. 6.
See
generally 2 Encyclopedia Britannica (11th ed.) p. 113.
[
Footnote 6]
2 Encyclopedia Britannica (11th ed.) p. 113.
[
Footnote 7]
13 Encyclopedia Britannica (11th ed.) p. 502.
[
Footnote 8]
Id.
[
Footnote 9]
13 Encyclopedia Britannica, p. 503.
"In spite, however, of the artificial restrictions placed on the
intermarrying of the castes, the mingling of the two races seems to
have proceeded at a tolerably rapid rate. Indeed, the paucity of
women of the Aryan stock would probably render these mixed unions
almost a necessity from the very outset, and the vaunted purity of
blood which the caste rules were calculated to perpetuate can
scarcely have remained of more than a relative degree, even in the
case of the Brahman caste."
And see the observations of Keane (Man, Past and Present, p.
561) as to the doubtful origin and effect of caste.