United States v. Balsara

• Decision Date: 01 July 1910
• Docket Number: 186.
• Citation: 180 F. 694
• Parties: UNITED STATES v. BALSARA.
• Court: U.S. Court of Appeals — Second Circuit

180 F. 694

UNITED STATES v. BALSARA.

No. 186.

United States Court of Appeals, Second Circuit.

July 1, 1910

Henry A. Wise, U.S. Dist. Atty., and A. S. Pratt and Carl E Whitney, Asst. U.S. Attys.

Rounds & Shurman, for appellee.

Louis Marshall and Max J. Kohler, for Syrian interveners.

Before COXE and WARD, Circuit Judges, and HAZEL, District Judge.

WARD Circuit Judge.

The Parsees emigrated some 1,200 years ago from Persia into India, and now live in the neighborhood of Bombay, to the number of about 100,000. They constitute a settlement by themselves of intelligent and well-to-do persons, principally engaged in commerce, and are as distinct from the Hindus as are the English who dwell in India. Balsara himself is a merchant of this city, entirely qualified for citizenship but for the fact, as the government contends, that he is not within section 2169 of the United States Revised Statutes (U.S. Comp. St. 1901, p. 1333), which provides as to naturalization:

'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.'

Counsel have furnished us with such complete and interesting briefs that detailed consideration of the cases, laws colonial state and federal and public documents referred to would extend this opinion to inordinate length. Therefore we will state our conclusions only.

The expression 'free white persons' is found in all our naturalization acts since 1790, except for the brief period between 1873 and 1875, when they were omitted from the Revised Statutes. The government contends that the words must be construed to mean what the Congress which passed the first naturalization act in 1790 understood them to mean, and, no immigration being then known except from England, Ireland, Scotland, Wales, Germany, Sweden, France, and Holland, Congress must be taken to have intended aliens coming from those countries only. The consequence of this argument, viz., that Russians, Poles, Italians, Greeks, and others, who had not theretofore immigrated, are to be excluded, is so absurd that the government extends the intention of Congress to all Europeans.

On the other hand, counsel for Balsara insist that Congress intended by the words 'free white persons' to confer the privilege of naturalization upon members of the white or Caucasian race only. This we think the right conclusion and the one supported by the great weight of authority. In re Ah Yup, 5 Sawy. 155, Fed. Cas. No. 104; In re Saito (C.C.) 62 F. 126; In re Camille (C.C.) 6 Fed. 256; Matter of San C. Po., 7 Misc.Rep. 471, 28 N.Y.Supp. 383; In re Buntaro Kumagai (D.C.) 163 F. 922; In re Knight (D.C.) 171 F. 297; In re Najour (C.C.) 174 F. 735; In re Halladjian (C.C.) 174 F. 834. Doubtless Congressmen in 1790 were not conversant with ethnological distinctions and had never heard of the term 'Caucasian race' mentioned in some of the foregoing decisions. They probably had principally in mind the exclusion of Africans, whether slave or free, and Indians, both of which races were and had been objects of serious public consideration. The adjective 'free' need not have been used, because the words 'white persons' alone would have excluded Africans, whether slave or free, and Indians. Still effect must be given to the words 'white persons.' The Congressmen certainly knew that there were white, yellow, black, red, and brown races. If a Hebrew, a native of Jerusalem, had applied for naturalization in 1790, we cannot believe he would have been excluded on the ground that he was not a white person, and, if a Parsee had applied, the court would have had to determine then just as the Circuit Court did in this case, whether the words used in the act did or did not cover him.

We think that the words refer to race and include all persons of the white race, as distinguished from the black, red, yellow, or brown races, which differ in so many respects from it. Whether there is any pure white race and what peoples belong to it may involve nice discriminations, but for practical purposes there is no difficulty in saying that the Chinese, Japanese, and Malays and the American Indians do not belong to the white race. Difficult questions may arise and Congress may have to settle them by more specific legislation, but in our opinion the Parsees do belong to the white race and the Circuit Court properly admitted Balsara to citizenship.

We think this view is confirmed by the legislation enacted between 1870 and 1875. Act July 14, 1870, c. 254, 16 Stat. 254, amending the naturalization laws, provided in section 7:

'That the naturalization laws are hereby extended to aliens of African nativity and to persons of African descent.'

As negro immigration from Africa is and was totally...