THE PEOPLE OF THE STATE OF CALIFORNIA, ex. rel. M. M. KIMBERLY, Appellant, v. PABLO DE LA GUERRA, Respondent, 40 Cal. 311

Temple, J., delivered the opinion of the Court, WALLACE, J., and Crockett, J., concurring: The respondent was born at Santa Barbara, in 1819, and has ever since resided at that place, and is admitted to have been a white male citizen of Mexico at the date of the treaty of Guadalupe Hidalgo. After the ratification of that treaty he elected to become a citizen of the United States in the mode provided in the treaty. He was a member of the Constitutional Convention which framed the Constitution of California, and has almost continuously, since the adoption of that instrument, held office under its provisions.

At the judicial election, held in 1869, he was elected Judge of the First Judicial District, and the relator in this proceeding contests his right to the office, on the ground that he is not a citizen of the United States, as by

an Act passed April 20, 1863, it is provided that “no person shall be eligible to the office of District Judge, who shall not have been a citizen of the United States and a resident of this State for two years.”

Article IX of the treaty of Guadalupe Hidalgo is as follows: “The Mexicans who, in the Territories aforesaid, shall not preserve the character of citizens of the Mexican Eepub-lic, conformably with what is stipulated in the preceding' Article, shall be incorporated into the Union of the TJnitud States and be admitted at the proper time (to be judged of by the Congress of the United States), to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution; and in the meantime shall be maintained and protected in the free enjoyment o|^their liberty and property,, and secured in the free exerdfcfe of their religion without restriction.” ¶ It is contended on the part of the relator that Mexicans who were resident in California at the date of the treaty, and who elected in the-mode provided to become' citizens of the United States, did not acquire the right of citizenship by the terms of the treaty, but

an Act of Congress admitting them to such rights is necessary, and that no such Act having been passed, the respondent is not a citizen. The question raised would be of very grave import to the people of this State, were it not for the fact that its solution is quite obvious. By the eighth

article of the treaty it is provided that the Mexicans who were resident in the ceded territory might either remain or remove to the Mexican [Republic, and should be protected in their property. It is then stipulated: “Those who shall prefer to remain in said Territory may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States.

But they shall be under the obligation to make their election within one year from the date of ratification of this treaty; and those who shall remain in the said Territories after the expiration of that year, without having declared their intention to retain their character of Mexicans, shall be considered to have elected to become citizens of the United States.” The natural consequence of the cession of the Territory by Mexico, and its acquisition by the United States, would be that the allegiance of the inhabitants who remained in it would be transferred to the new sovereign.

By the stipulation of the treaty, however, three courses were left open to the inhabitants. One was to remove to the Republic of ■Mexico; in which event they would, of course, continue to be citizens of Mexico; the second was to remain in the ceded Territory and retain the title and rights of Mexican citizens; the third, to become citizens of the United States. That, the treaty was intended to operate directly, and of itself to fix the status of those inhabitants, does not admit of a douM.

That it had that effect, so far as those who elected t* remain citizens of Mexico are concerned, is obvious, aM there is no reason for a different construction as to those who elected to become citizens of the United States. In fhct, this would have been the natural consequence of the'treaty (so far as was possible under our form of Government), and it required tbis special treaty stipulation to enable tbe inhabitants to remain in the ceded territory and owe no allegiance to the new Government.

But for this provision the Mexicans who remained would not have been considered aliens, but would have been vested with such rights of citizenship as can be conferred upon the inhabitants of a Territory who are not citizens of any of the States of the Union.

But, by the terms of the treaty, those who did not elect to remain citizens of Mexico, lost their rights as Mexican citizens, at least as soon as the election was made, and the conclusion is irresistible that they acquired (so far as was possible) the rights of citizens of the United States at the time they lost those of Mexican citizens; otherwise they remained a people without a country. This

article of the treaty would probably never have received a different construction from that here given, were it not for the following article, which has been strangely misconstrued. It provides that these Mexicans in the ceded Territories, who do not retain the character of Mexican citizens, shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the Congress of the United States), to the enjoyment-of all the rights of citizens of the United States, according to the principles of the Constitution.

The Union with which they are to be incorporated is, of course, the Union of the States composing the United States, and by which.Union that Government is created. They can. be incorporated into this Union only as a State, and the admission of the people to the full rights as citizens of the United States follows as the consequence of that act; and this is the only way in which it was possible for Congress to confer upon them all the rights of citizens of the United States.

For this purpose it in not necessary to .inquire whether, under our form of Government, there can be a citizen of the United States who is not a citizen of one of the States. I have no doubt that those born-in the Territories, or in the District of Columbia, are sd far citizens as to entitle them to the protection guaranteed to citizens of tbe United States in tbe Constitution, and to tbe shield of nationality abroad ; but it is evident that they have not tbe political rights which are vested in citizens of the States.

They are not constituents of any community in which is vested any sovereign power of government. Their position partakes more of the character of subjects than of citizens. They are subject to the laws of the United States, but have no voice in its management. If they are allowed to make laws, the validity of these laws is derived from the sanction of a Government in which they are not represented. Mere citizenship they may have, but the political rights of citizens they cannot enjoy until they are organized into a State, and admitted into the Union.

But the United States cannot acquire territory to hold and rule permanently in full government. Such acquisitions are in pursuance of its power to admit new States, and every Territory thus acquired must be held to have been acquired for the purpose of being erected into a State. Indeed that may be considered as the last act in the acquisition of the Territory, for it is then for the first time incorporated into the Union.

Once admitted into the Union it requires no Act of Congress to define the rights of the inhabitants who were recognized as members of the community organized into a State, “because the Constitution itself defines the relative rights, powers and duties of the State, and the citizens of the State, and the General Government.” (Scott v. Sandford, 19 How. 446.) Having admitted into the Union a State, of which these inhabitants were constituent members, Congress could do no more.

It has conferred upon them all the rights of citizens, or rather it has recognized these rights in the only mode- provided by the Constitution which was applicable to them. The question involved in this case seems to have been decided in the case of the American Insurance Company v. Canter, (1 Peters, 511.) This case involved the validity of a territorial law of Florida, establishing a certain Court. Chief Justice Marshall, in pronouncing the opinion of the Court, sajs: “On the 2d of February, 1819, Spain ceded Florida to the United States.’ The sixth

article of the treaty of cession contains the following provision: ‘The inhabitants of the Territories which His Catholic Majesty cedes to the United States by this treaty shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution; and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States.’” “This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights and immunities of the citizens of the United States.’ It is unnecessary to inquire whether this is not their condition independent of stipulation.

They do not, however, participate in political power; they do not share in the Government till Florida shall become a State. In the meantime, Florida continues to be a Territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress ‘to make all needful rules and regulations respecting the territory or other property belonging to the United States.’” But it is suggested by counsel for relator, that if this construction be correct, then the Constitution of California is in conflict with the ninth

article of the treaty, for that

article provides that all Mexican citizens who elect to become citizens of the United States, shall be admitted to all the rights of citizens, while the Constitution discriminates. It declares that white male citizens of Mexico, who have elected to become citizens of the United States, shall be electors, while all, without distinction of color, including Indians, were Mexican citizens, and entitled to'vote by the laws of Mexico.

If this be so, it does not follow that the respondent is not a citizen of the United States, but that the elective franchise is denied to certain persons who had been entitled to its exercise under the laws of Mexico. The possession of all political rights is not essential to citizenship.

When Congress admitted California as a State, the constituent members of tbe State, in tbeir aggregate capacity, became vested witb tbe sovereign powers of government, “according to tbe principles of tbe Constitution.” They then bad tbe right to prescribe tbe qualifications of electors, and it is no violation of tbe treaty that these qualifications were such as to exclude some of tbe inhabitants from certain political rights. They were excluded in accordance witb tbe principles of tbe Constitution. Tbe respondent is clearly a citizen of tbe United States, and tbe judgment should be affirmed. So ordered.

By Erodes, C. J.: I concur in tbe judgment. Sprague, J., expressed no opinion.