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Person as used in the Constitution; White vs. Black; Applicability: 14th Amendment.

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  • Legalbear
    [24] At the time the original law was passed, which provided for the admission of aliens being free white persons, there can be no question but white was
    Message 1 of 1 , Feb 10, 2014
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      [24]    At the time the original law was passed, which provided for the admission of "aliens being free white persons," there can be no question but white was used in counterdistinction from black, and "free white persons" included all who were not black. The latter were chiefly salves, regarded as an inferior race.

       

      [25]    "White person," as construed by this Court and by the state courts, means a person without negro blood. United States v. Perryman, 100 U.s. 235; Dred Scott v. Sandford, 19 How. 393, 420; Du Val v. Johnson, 39 Ark. 182, 192.

       

      [26]    The primary definition of these words, as given by the great dictionaries, is one who is white, not black, nor a negro.

       

      [27]    The insertion by Congress of the word "free" in § 2169, in 1875, a word which had a definite meaning in 1790, but has no meaning if construed as a new enactment in 1875, shows the intention to re-enact the old section with the old meaning.

       

      [28]    Giving the words "free white persons" their common and popular acceptation in 1875, no "uniform rule" can be laid down, based on color, race or locality of origin, and there is nothing in the laws of the United States, its treaties, in the history of the time, or the proceedings of Congress, to show that Japanese were intended to be excluded. Up to 1875, there had been no Japanese immigration, no suggestion of their exclusion. America had recently opened Japan to the western civilization, which Japan was gladly welcoming.

       

      [29]    Judicial construction of the phrase, up to 1875, does not sustain such an exclusion. See Dred Scott and Du Val Cases, supra; Lynch v. Clarke, 1 Sandf. 583; People v. Hall, 4 Cal. 399; People v. Elyea, 14 Cal. 145. Cf. 2 Kent's Comm., p. 72.

       

      [30]    No "uniform rule," applicable in all cases, can be drawn from the decisions since 1875. Low Wah Suey v. Backus, 225 U.s. 460; In re Ah Yup, 5 Sawy. 155; In re Hong Yen Chang, 84 Cal. 163; In re Po, 28 N.y.s. 383; In re Alverto, 198 Fed. 688; In re Mozumdar, 207 Fed. 115; In re Dow, 213 Fed. 355; Ex parte Shahid, 205 Fed. 812; In re Dow, 226 Fed. 145; United States v. Balsara, 180 Fed. 694; In re Camille, 6 Fed. 256; In re Mudarri, 176 Fed. 465; In re Saito, 62 Fed. 126; In re Kumagai, 163 Fed. 922; Bessho v. United States, 178 Fed. 245; In re Knight, 171 Fed. 299; In re Yamashita, 30 Wash. 234; In re Nian, 6 Utah, 259; In re Rodriquez, 81 Fed. 337.

       

      [31]    The policy of the United States has been to include into its citizenship by annexation vast numbers of members of races not Caucasian, including many Mongolians. The annexation of Hawaii converted thousands of Japanese, not to mention other nationalities, into American citizens. The most recent is the Porto Rico Act, which makes the Porto Ricans, who are as dark as the Japanese, American citizens.

       

      [32]    The petitioner in the court below presented an incomplete list of fourteen naturalization in various courts, and that court says it is understood that about fifty Japanese have been naturalized in state and federal courts. In fact, the census of 1910 shows 209 American born citizens, 420 naturalized, and 389 with first papers, who are Japanese.

       

      [33]    The words "free white persons," neither in their common and popular meaning, nor in their scientific definition, define a race or races, or prescribe a nativity or locus of origin.They deal with personalities and the qualities of personalities, and are only susceptible of meaning those persons fit for citizenship and of the kind admitted to citizenship by the policy of the United States. The words deal with individuals, not with races, nor with natives of any country or of any particular descent.

       

      [34]    The word "free" is an essential part of the clause. Under the Constitution, it is used in opposition to slave. It imports a freeman, a superior, as against an inferior class.

       

      [35]    "White" we have already sufficiently defined, and shown that the words "free white persons" had in 1875 acquired a signification in American statute law as expressing a superior class as against a lower class, or, to speak explicitly, a class called "white" as against a class called "black"; the white man against the negro.

       

      [36]    "Person" is "a living human being; a man, woman or child; an individual of the human race." United States v. Crook, 25 Fed. Cas. 695. The provisions of the Fourteenth Amendment in reference to persons "are universal in the application to all persons within the territorial jurisdiction without regard to any difference of race, or color, or nationality." Yick Wo v. Hopkins, 118 U.s. 369. The same rule has been applied to include aliens under the Fifth and Sixth Amendments. Wong Wing v. United States, 163 U.s. 235.

       

      [37]    No case has considered this point or given emphasis in the construction of the section to the words "free" and "persons," which are as important to the construction as the word "white." Nearly all think the section deals with races.

       

      [38]    The question certified does not deal with individuals, but with a people, and the affirmative answer would exclude a Japanese who is "white" in color and is of the Caucasian type and race.

       

      [39]    The Japanese are "free." They, or at least the dominant strains, are "white persons," speaking an Aryan tongue and having Caucasian root stocks; a superior class, fit for citizenship.

       

      TAKAO OZAWA v. UNITED STATES, 260 U.S. 178 (1922).

       

       

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