Appeal from tbe County Court of Santa Barbara County.

Judgment was for defendant; and plaintiff appealed.

Tbe other facts are stated in tbe opinion.

If tbe judicial election bad taken place under tbe Act of 1851, (p. 287) or that of 1853, (p. 333), neither of which prescribes any qualifications, tbe relator might need to rely entirely upon tbe principle discussed in tbe case of Walther y. Rabolt (30 Cal. 185). But, at tbe time of this election, the Act of April 20,1863, was in force; and its 19th Section declares that “no person shall be eligible to tbe office of District Judge wbo shall not have been a citizen of the United States and a resident of this State for two years and of the District one year, nest preceding bis election.”

The error assigned by appellant is that the Court below decided in substance that respondent was, and had been for two years before his election, a citizen of the United States solely by virtue of his choice under the treaty.

It may appear invidious, at this late ■ day, to claim that, notwithstanding Articles 8 and 9 of the Treaty of Guadalupe Hidalgo, the distinguished respondent, who has filled high offices before and since the admission of California into the Union is not a citizen of the United States, simply because Congress has not yet seen fit to declare that, in its judgment, the “proper time” had come to provide for his admission. Nevertheless the conclusion, however rigorous, seems inevitable, and the point is by no means a new one.

It was first distinctly raised September 12th, 1849, by Mr. Gilbert, in the Convention that met to frame a Constitution for California. In the long debate which followed (Report p. 62-75) there appears no difference of opinion, except as to whether the Indian citizens of Mexico should have the suffrage. Mr. Gilbert’s proposition, even at that early day, required no argument in its support.

The question again came up in committee of the whole as to the' qualifications of Senators and Members of the Assembly; and was again mooted in regard to the qualification for the office of Governor, although the section, as reported and afterward adopted, ensured the eligibility of native Californians to that office, at the first election, allowing sufficient time, it was thought, for Congress to adopt the provision contemplated by the ninth Article of the Treaty. (Report, p. 157, et seq.)

When the report of the committee of the whole came to be considered by the Convention, the respondent in this proceeding introduced a substitute for the first section of the article on suffrage, the main object of which was to secure the riaht of votina for the decendants of Indians (Beport, p. 323). Afterward (p. 341) be assented, byway of compromise, to Mr. Vermeule’s proviso as it now reads at tbe end of said section. But throughout this debate it is manifest that he was fully conscious that he, together with his countrymen similarly situated, was, at that time, and would remain, until Congress took special action, merely one of those Mexican citizens in California who had “ elected to become citizens of the United States.”

The fifth section of the schedule appended to the Constitution again recognizes the distinction, fon it invites, to vote on the adoption of that document: “every citizen of California, declared a legal voter by this Constitution, and every citizen of the United States,” etc.

Now, if there be anything in the notion that the native Californians became citizens of the United States by simply abstaining to signify, in some way, their desire to “retain the title of Mexicans,” (Treaty, art. 8,) then the respondent was one before he became a member of that Convention, viz: as early at least as the 30th of May, 1849.

It can scarcely be contended that the respondent’s case was bettered by the admission of California into the Union. For the act of admission merely sanctioned a Constitution which recognizes a distinction between those who by right were already citizens of the United States and those who expected to become so at the proper time, to be “judged of by the Congress of the United States.”

Judge Bennett clearly was of the opinion that the admission of the State into the Union, did not make those Mexicans citizens of the United States, when, in The People v. Naglee, (1 Cal. 282), he classified them as established Mexicans who, not having declared their intention still to continue Mexican citizens, have elected to become American citizens. Far from intimating that they have become such, according to the statement in the syllabus to that case, he takes occasion to criticize the language of the first section of the Foreign Miners’ Act, which, aside from the Court’s interpretation, would only seem to exempt those Mexicans who had become citizens of the United States under the Treaty, i. e. by virtue of some special declaration of Congress. (Tobin v. WallcinsJiaw, 1st. McA. 193.)

An intimation in tbe case of lhe American and Ocean Insurance Company et al. v. Canter, may seem to militate against our view (Peters 542). Evidently tbe reasoning is based upon tbe assumption that tbe treaty in question operated eo instante “ to admit and incorporate” not to provide for future admission and incorporation; therefore tbe passage in question, even if not altogether obiter dictum, can only be invoked as authority here if a similar construction can be forced upon tbe ninth article of tbe Treaty of Guadalupe Hidalgo. At all events tbe Court nowhere intimates that tbe inhabitants have become citizens of tbe United States. To have done so would have been to accord tbe power of naturalization to tbe treaty-making power. And with all due respect, it is submitted that tbe “political power” of which tbe Court speaks might depend on many things besides tbe circumstance referred to.

To show that a different rule applies when a treaty contains a provision for future action, we apply to tbe same high authority. In tbe case of Foster & Flam v. Neilson{2 Peters, 314), Judge Marshall says: “A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, tbe object to be accomplished; especially so far as its operation is infra-territorial; but it is carried into execution by tbe sovereign power of tbe respective parties to tbe instrument. In tbe United States a different principle is established, our Constitution declares a treaty to be tbe law of tbe land. It is, consequently, to be regarded in Courts of justice as equivalent to an Act of tbe Legislature, wherever it operates of itself without the aid of legislative provision. But when tbe terms of tbe stipulation import a contract, when either of tbe parties engages to perform a particular act, tbe treaty addresses itself to tbe political, not tbe judicial department; and tbe Legislature must execute tbe contract before it can become a rule for tbe Court.” This identical language is in corporated approvingly in The United States v. Arredondo, {6 Peters, 735); at p. 710 of tbe same opinion, the principle is is distinctly asserted and maintained. And, in the case of The United States v. Percheman, after the Spanish version of the treaty had been laid before and interpreted to the Court (7 Peters 69), the Court reasserts the principle laid down in Poster &Elam v. Neilson, (Id. p. 89). The language of the Court is: “If the claim was confirmed by the treaty, which is the supreme law of the land, the United States have no power” &c. (p. 79.) In other words, Percheman’s claim stands confirmed because it has been brought to the knowledge of the Court, that the real terms of the treaty, instead of providing, as was thought before, for some legislative action in its aid, actually operated to confirm such claim. In the case of Garcia v. Lee, (12 Pet. 515) Judge Haney recognizes Liam v. Neilson, as authority throughout.

We respectfully refer the Court to the following authorities cited by Abbott, and .not within our reach. (S. Dist. of N. Y. 1847, matter of Metzger, 5 N. Y. Obs. 83, Ct. of Claims 1855-6; Humphrey v. United States, Dev. 51, 7th, Circ. Mich. 1852; Turner v. American Baptist Missionary Union, 5 McLean, 344.)

The distinction in question is, we think, a sufficient answer (although there are others) to any argument based on the authority of Gity of New Orleans v. Armas and Gucullu, (9th Pet. 224) and indeed on any of the Louisiana and Florida cases.

The reasoning in the famous case of Groves et al. v. Slaughter (15 Pet. 449) is amenable, we concede, to the criticism which sooner or later attends all mere political or expediency decisions, but only because it goes infinitely farther than the point we are endeavoring to sustain.

The Constitution of Mississippi contained the following language: “The introduction of slaves into this State, as merchandise, or for sale, shall be prohibited from and after the first day of May, 1833:” The decision of a majority of the Court was that an Act of the Legislature was required to carry that prohibition into effect.

We may also appeal to the practice of our government heretofore :

The treaty of 1803 with Prance contained the following Article: “ The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages and immunities of the citizens of the United States, and in the meantime protected,” &e.

Notwithstanding this assurance, which seems to us as strong as that in the Florida treaty, Congress thought fit to define the status of the inhabitants by the Act of March 2d, 1805. By the first section of that Act it is declared that they shall be “entitled to and enjoy all the rights, privileges and advantages secured by said Ordinance (13th July 1787), and now enjoyed by the people of the Mississippi» Territory.” Previously to this, their rights and privileges seem to have been only those enumerated in the fifth section of the Act of March 26, 1804.

Furthermore the Act of February 20, 1811, authorizing the “inhabitants” to form a State government, invites certain “inhabitants,” in contradistinction with “citizens of the United States” to vote for members of the Convention,

Wherefore, in view of these antecedents, when Congress, April 8th, 1812, admitted Louisiana into the Union, it might well be considered to have redeemed the pledge in the treaty. It is believed that the admission of Louisiana was delayed for seven years — not from the date of the treaty, but from the Act of 1805, defining the political status of the inhabitants — so that the inhabitants might be on an equal level for eligibity to the House of ^Representatives, under the second subdivision of Section 2, Article 1 of the Constitution of the United States.

In the case of - Florida, “ An Act for carrying into execution the treaty between the United States and Spain,” &c. was passed March 3d, 1821. By its terms the power to establish a government is delegated to the President. But soon thereafter (March 30, 1822,) Congress, resuming the matter into their own hands, established a government. Section 10 of that Act (3 U. S. L. 658) specifies the rights and immunities of the “inhabitants.” Sections 12 and 13 of the amendatory Act of March 3d, 1823 (Id. p. 753) pursue the same object. Further electoral privileges axe conceded to the citizens of the territory of Arkansas by the Act of Jan. 21, 1829 (4 U. S. L. 332) while the same act (Sec. 5) amplifies the franchise to the qualified voters of Florida.

The case of Texas offered no difficulties. Here we were dealing with an independent Eepublic. Section 10 defined citizenship: “ All persons (Africans, the descendants of Africans and Indians, excepted) who were residing in Texas on the day of the, declaration of independence, shall be considered citizens of the republic, and entitled to all the privileges of such.”

Clearly then the joint resolution of Dec. 29,18s5, (9 Stat. at large, 108) admitting Texas “into the Union on an equal footing with the original States in all respects whatever” admitted those as citizens whom that sovereignty had designated as such, and those only. This would seem to be established in the case of Benner et al. v. Porter, (9 How. 235) cited in Calkin & Co. v. Cocke, (14 How. 238) In other words, the Texans became citizens of the United States not because of the admission alone, but because of the fundamental law of the annexed sovereignty at the time of the admission. Now the fundamental law of California discriminates.

We would seem to be justified, without any further demonstration, to assume that the words “ at the proper time to be judged of by Congress,” so different from the language in the treaties with Spain and France, were inserted in the treaty of Guadalupe Hidalgo with a distinct and definite purpose. But we intend to make that point still clearer.

The original Article IX, as proposed by the Mexican. Commissioners, read as follows: “The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Eepublic, conformably with what is stipulated in tbe preceding article shall be incorporated into tbe Union of tbe United States, and admitted as soon as possible, according to tbe principles of tbe Federal Constitution, to tbe enjoyment of all tbe rights of citizens of tbe United States. In tbe meantime they shall be maintained and protected in tbe enjoyment of their liberty, their property, and civil rights now vested in them according to tbe Mexican laws. With respect to political rights their condition shall be on an equality with that of tbe inhabitants of tbe other territories of tbe United States, and at least equally good as that of tbe inhabitants of .Louisiana and tbe Floridas, when these provinces by transfer from tbe French Eepublic and tbe crown of Spain, became territories of tbe United States.

“Tbe same most ample guaranty shall be enjoyed by all ecclesiastics, and religious corporations or communities, as well in tbe discharge of tbe offices of their ministry as in tbe enjoyment of their property of every kind, whether individual or corporate. This guaranty shall embrace all temples, bouses, and edifices dedicated to tbe Bom-an Catholic worship, as well as all property destined to its support, or to that of schools, hospitals, and other foundations for charitable or beneficent purposes. No property of ibis nature shall be considered as having become the property of the American Government, or as subject to be by it disposed of or diverted to other uses.

“Finally the relations and communication between the Catholics living in the territories aforesaid and their respective ecclesiastical authorities, shall be open, free and exempt from all hindrance whatever, even although such authorities should reside within the limits of the Mexican. Eepublic as defined by this treaty, and this freedom shall continue so long as a new demarcation of ecclesiastical districts shall not have been made conformably with the laws of the Eoman Catholic Church.” (Tratado de Paz Queretaro, 1848, pp. 11, 12, 13.)

The American Commissioners, however, insisted upon and obtained the present version. And they had powerful motives: tbe Mexicans in tbe ceded territory were supposed to be disaffected, particularly in California. Tbe official correspondence (see .for instance Sen. Doc. 1st. Sess. 31st. Cong. vol. 9) is full of information on tbis subject.

Bitterness bad been added bere to that wbicb always attends war by peculiar circumstances. Tbe first struggle (tbe Bear war) was understood to be revolutionary and unauthorized by any recognized Government. During its progress it was characterized by bloodly deeds and harsh retaliation. Soon after tbe raising of tbe American flag, tbe two highest Mexican officers deserted the country. Tbe Southern part of tbe State arose in arms and expelled tbe American garrison. Several encounters took place, not always to tbe advantage of tbe invaders. "Well might Congress be left to judge of tbe proper time when these Mexicans should be- admitted to tbe enjoyment of tbe rights of citizens of tbe United States.

Besides, a glance at tbe debates in Congress shows a prejudice, in tbe minds of tbe Senators and Eepresenta-tives, against tbe character of tbe population of tbe territory. Calhoun, in a great wbite-man-government speech, is quite emphatic. (Cong. Globe, vol. 19. p. 49). So is Dayton (Id. p. 499.) To such men tbe words in question were tendered as a salve.

If it be pretended, under tbe authority of Knowles’ case (5 Cal. 300) that there is no such thing as a “ citizen of tbe United States,” and that, consequently, tbe qualification prescribed for District Judges by tbe Act of 1883 is illusory, we shall answer that tbe proviso of tbe treaty is open to tbe same criticism, and shall furthermore cite that case as authority for tbe position that there is but one way of turning a foreigner into a citizen, viz.: tbe judgment of some Court of Becord, entered in some proceeding authorized by tbe general laws of Congress establishing “uniform rules” on naturalization. That tbe treaty-making power is, and always has been, incompetent to naturalize; and that tbe State itself, a uniform rule once established by Congress, has no power to adopt a citizen, except in tbe manner pointed out by that rule. And to maintain the last mentioned position it is scarcely necessary to appeal to tbe authority of tbe case whose report fills some two hundred pages of the 19th How., from page 393 to the end.

We have hitherto argued with special reference to those “words of solemn import” in the ninth article of the treaty of Guadalupe Hidalgo, which provides for special action by Congress.

We now beg leave to present the view that, even if those words were absent from the treaty, the respondent would not be a citizen of the United States.

The States that formed the original Union, though liberal beyond precedent in the adoption of foreigners, as witnessed by that clause in the Declaration of Independence, where the disinclination of the parent country to encourage foreign immigration is mentioned as a grievance justifying rebellion, realized, to the utmost, the value of the privileges which they extended to aliens. The whole subject .of naturalization was referred to Congress. That this grant of power was exclusive appears from many decisions. (Chirac v. Chirac, 2 Wheat. 269; Z7. S. v. Villato, 2 Dali. 372; Thur-ow v. Massachusetts, 5 How. 585; Smith v. Turner, 7 Id. 556; Dred. Scott v. Sanford, 19 How. 398.) Congress, in the exercise of its constitutional power, announced its settled policy in the Act of April 14th, 1802. The first section of that Act reads as follows: “That any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following condition and not otherwise.”

In 1804 it was thought best to establish another “uniform rule of naturalization” for a certain class of individuals. And the first section of that Act might well serve as a model for an Act to admit to citizenship our Mexican residents whenever Congress shall consider that their probation has been sufficient.

If we have not wholly misunderstood the history of the country, Congress has never, in any single instance, departed from the general rule. It has conferred the privileges of citizenship on tbe inhabitants of annexed territories, but it bas done so by special enactments. It has first defined the political status of the inhabitants, and afterward raised them to a level with other inhabitants of the Union by investing the annexed territory with the dignity of a sovereign State. Or, it has reached the same result by simply approving a State Constitution which declared who were the citizens of that State; and these became immediately entitled to the benefit of the provisions of Section 2, Article IY. of the Federal Constitution,

But when Congress admitted California into the Union, it was neither an independent republic which it incorporated, as in the case of Texas, nor a district prepared for admission by the usual initiatory stage of territorial existence, as in the cases of Louisiana and Florida. It was a portion of Mexico, acquired by purchase, which demanded admission. It tendered a Constitution which far from conferring, or attempting to confer, citizenship upon the Mexican residents, pointedly discriminated between them and the citizens of the United States, though generously conferring the right of suffrage upon the former,

In admitting California, Congress did no more then, as regards its Mexican inhabitants, than to confirm the political status attributed to them in the fundamental law of the admitted State, viz: that of Mexicans residing in California who had elected to become citizens of the United States.

It was not an independent sovereignty which the treaty promised to incorporate. It was a portion of the “ Department© de Californias.” If, by any perversion of terms, it should be claimed that the respondent had some status under the Mexican Constitution, at the date of the treaty, as a citizen of California, which the United States might be bound to consider and respect, as was done in the case of Texas, we confidently answer that, under the Mexican Constitution in force at that time there was no such thing as a citizen of apy portion of the ^Republic of Mexico. There was a Bepublic of Mexico; it was divided geographically and politically into a number of “Departamentos.” But each of these derived its powers solely from tbe central source of authority. Its legislativo bodj had no life but what was conferred by the nation at large. State-rights, such as we understand them, were unknown in Mexico. The very machinery of local government was prescribed by central legislation (see Constitution of 1836, and law of 20th of March, 1837). There was, therefore, no such thing as a citizen of California, (as we understand the term) before the American conquest. There were simply certain citizens of the Republic of Mexico residing here. This is all that the treaty recognizes, all that the State Constitution acknowledge. Aliens 'to all intents and purposes, they had never owed any special allegiance to that portion of the Mexican Republic which the treaty annexed; their allegiance was due to the whole Republic of Mexico. By electing to become citizens of the United States, they had no State allegiance to abjure, in terms or by implication, only allegiance to the Republic of Mexico. No special autonomy ever belonged to California as a portion of the Mexican territory, beyond what has been indicated in this hasty sketch. No political rights ever attached to an inhabitant of California, under Méxican rule, except the rights of a Mexican residing there. Wherefore the respondent, at the date of the Treaty had no special franchise, as a Mexican, attached to the circumstance of his dwelling in California. He was simply a Mexican who might or not elect to become a citizen of the United States. He did so elect; but that alone does not make him a citizen.

In conclusion, we insist that the respondent was an alien enemy up to the ratification of the treaty of Guadalupe Hidalgo; that between that time and the date of the admission of the State of California into the Union, he joined, by virtue of his silence, that class of Mexicans who are deemed to have elected to become citizens of the United States, but he is not and never was a citizen within the meaning of the Act of April 20, 1863, prescribing qualifications for the high office which he pretends to fill

First — On tbe point of conquest, it will suffice to say, in tbe language of tbe Supreme Court of tbe United States, in tbe case of Percbeman (7 Pet. 87), that “tbe conqueror displaces tbe former sovereign, and assumes dominion over tbe country ; tbe people change their allegiance, and their relation to tbe ancient sovereign is dissolved.” Now it is a well-established principle of tbe common law, that “ if tbe king of England make a new conquest, tbe persons there born are bis subjects.” (Bac. Ab., Tit. Aliens.) Why? Because they- are born within tbe dominions and allegiance of tbe king. “One born in Ireland, Scotland, or Wales, or any of tbe king’s plantations, is a natural subject of England, because be is born within tbe allegiance of tbe king.” (Bac. Ab., Tit. Aliens.) All English subjects are either natural born, or denizens (so made by letters patent), or naturalized, by act of parliament. Erom these three classes alike allegiance is due to tbe natural person of tbe king. It was on this distinction between tbe natural and politic persons of tbe king, that tbe celebrated decision in Calvin’s case was grounded. It was there held that persons born in Scotland after tbe English crown came to James I., were born under allegiance to tbe natural person : of tbe king of England, and might inherit in England. In tbe case of Craw v. Ramsey (Yaugban B.. 279), it is held that “according to tbe resolution and reasons of Calvin’s case, tbe specific and adequate cause, why tbe kmg’s subjects of bis other dominion than England, do inherit in England, is, because they are born bis natural subjects, as tbe English are, be being actually king of England at tbe time of their birth, when their subjection begins ; and so are born liege men to tbe same king.” In /the same case, p. 283, we are told that “ No fiction of law/can make a man a natural subject that is not; for a natural subject and a natural prince are relatives, and if an act of naturalization should thereby make a man a natural subject, tbe same subject would have two natural sovereigns, one when be was born, tbe other when naturalized, which he can never have more than twó natural fathers, or two natural mothers, except the sovereigns be subordinate, the inferior holding his kingdom as Liege Homager from the Superior.”

Under our form of government, there being no such thing as allegiance to any natural person, the ligamen which binds the individual to the State consists entirely in the obligations imposed on him by reason of his being one of many who constitute a State or body politic. If we eliminate everything like a personal relation between natural persons from the idea of citizenship, it is reduced merely to that relationship which exists between the individual and the aggregate of individuals called the State, and out of this relationship arises allegiance.

When, therefore, the,United States wrests a province from another, and incorporates it permanently in its own territory, and the country from which it is taken by force, cedes it by treaty, whereby the allegiance due by its inhabitants to the ancient sovereign, is transferred in all its fullness and perfection to the new one, it seems that the inhabitants of that province must be considered citizens of the country to which they have been transferred. Even by the strict principles of the common law, if California had been conquered by England, all persons there born after the conquest, would be English subjects ; because born within the allegiance of the king. But between the allegiance due by those born before, and those born after the conquest, there is no other difference than that the first allegiance comes by transfer, and the second by birth. They drave different origins, and different effects; but they are whplly alike so far as regards obligation to the State, and the absence of obligation to all other States. And therein, if we are not mistaken, is to be found the true test of citizenship in these United States. When the United States conquers a territory by force, and confirms the conquest by trteaty; enforces a temporary allegiance by war, and accepts \£ull and permanent allegiance by contract, transfer and relinquishment on the part of the former sovereign, it seems to us tbat tbe inhabitants of tbe conquered province bear to tbe new sovereign all those relations out of. which citizenship necessarily arises. These relations, be it further observed, are forced upon the inhabitants by the conqueror, who procures for himself a formal recognization and relinquishment of them by the old sovereign.

We are speaking of citizenship in its simplest form, and entirely divested of those political rights which, under our democratic form of government, are so commonly engrafted upon it as to have given rise to an error common in popular thought, that they are its essentials.

Second — If the respondent did not become a citizen by the conquest, cession, and permanent incorporation by the United States of the territory whereon he was then, and has been ever since domiciled, he certainly did become one, by force of the treaty of Guadalupe Hidalgo.

The 8th Article of the treaty is as follows ;

“Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican Republic, retaining the property which they possess in said territories, or disposing thereof, and removing the proceeds wherever they please, without ’their being subjected, on this account, to any .contribution, tax or charge whatever.

“Those who shall prefer to remain in the said territories, 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 ¿lection within one year from the date of the exchange off ratifications of this treaty ; and those who shall remain within the said territories after the expiration of that ye^ir, without having declared their intention to retain the .character of Mexicans, shall be considered to have elected to become citizens'of the United States.” j

The remaining clause of the 8th Article .has no bearing on the question involved in this case.

This article of tbe treaty gives to tbe Mexicans tben domiciled in California, tbe right to retain their domicile in the ceded territory, and to retain their allegiance to the Republic of Mexico. In this respect, it gives them an advantage which is denied them by the law of nations. For ac cording to that law they may, if they choose, depart within a reasonable time from the conquered territory, taking with them their property or its proceeds; but they cannot remain there domiciled without incuring all the obligations to the new sovereign, which are imposed by full allegiance.

It gives them, moreover, the right to choose between the old and the new sovereigns, to retain the rights of Mexican citizens, or to acquire those of citizens of the United States. It prescribes to them, further, the method by which they may retain their Mexican citizenship or acquire citizenship . in the United States.

We regret that the learned counsel of the appellant, failing to notice this article of the treaty, which is so pertinent to the question under discussion that it affords the true grounds of its solution, bestowed all their labor on the ninth article, which has no bearing on it.

We contend that Don Pablo de la Guerra, being a Mexican, then established in California, having refrained from declaring his intention to retain the' character of a Mexican citizen, during the time specified in the treaty, elected to become, and by his election did become, a citizen of the United States.

Our Constitution declares a treaty to be the law of the land. It hi consequently to be regarded in Courts of justice, as eq1 valent to an Act of the legislature, whenever it operates of iY?elf without the aid of legislative provision.” (Per Chief Justice Marshall, in Foster & Elam v. Neilson, 2 Pet. 314.) \

Does the.-eighth article of the treaty, operate of itself, or does it require legislative aid to put it in operation ? There can be^ no doubt that it operates of itself. It is a contract and stipulation with the Republic of Mexico, granting a privilege to her citizens, and not a mere promise of a future grant. It is a grant direct and immediate to certain Mexicans of the right to retain their Mexican citizenship, or to acquire citizenship in the United - States. It is a grant of the right of election, to be exercised pn a certain manner, and within a specified time. And this time begins to run from the date of the grant, i. e. from the exchange of ratifications, and is limited to one year. If this article had been intended as a mere promise o.n our part, that Congress shall, at some future time, enact a law conferring on Mexicans established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the treaty, the right to’ retain their Mexican citizenship, or to become citizens of the United States at their election, it would seem that in fixing a time within which the right of election must be exercised, tho date of the law which confers the right, would have been selected as the initial point, and not the date of the exchange of ratifications.

But this is certain, if the treaty operates of itself as a grant to Mexicans then established in the ceded territory, of the right to retain their domicile in California, and tñeir allegiance to Mexico, by making a declaration to that effect, it equally operates of itself as a grant to those same Mexicans of the right to acquire citizenship in the Unitedl States, by refraining for the space of one year from an^ after the-exchange of ratifications, to make the declarati^H aforesaid. For thechoiee is between remaining a citize^H Mexico, and becoming a citizen of the United States. right of election which is -granted, is the right tó choc^^|H tween those two things. If they have the right to chc^^^H one, they have an equal right to choose the other. spondent chose to become, and, by his election, a citizen of the United States.

The respondent’s counsel say that Judge case of the People v. Nagle, is far from Mexicans who, not having declared their continue Mexican citizens, have elected to can citizens, “have become sucb.” We think tbis intimation scarcely does justice to tbe able jurist wbo delivered tbe opinion in that case. For be says: “those wbo bare declared sucb intention (to retain tbeir Mexican citizenship) if there be any, still remain aliens and foreigners, and as sucb are subject to tbe same restriction by State authority as tbe subjects or citizens of any other foreign country.” (1 Cal. 351.)

It is clear, therefore, that in Judge Bennett’s opinion, tbe treaty operated of itself to give to Mexicans tbe right to retain tbeir Mexican citizenship by declaring tbeir intention. Tbe treaty says: “ Those wbo shall prefer to remain in tbe said territories, may either retain tbe title and rights of Mexican citizens, or acquire those of citizens of tbe United States.” How retain? and bow acquire? By “making tbeir election within one year from tbe date of tbe exchange of ratifications.” If tbe treaty proprio vigore confers tbe right to retain, it must equally confer tbe right to acquire. According as tbe right of election is exercised, Mexican citizenship is retained, or our United States citizenship is acquired; .both come of election, or neither.

Tbe ninth article of tbe treaty does really contain a promise. Tbe United States therein pledge tbeir faith to Mexico that tall those Mexicans wbo, in tbe exercise of tbe right of election conferred on them by tbe eighth article, have not refined tbeir Mexican citizenship, “ shall be incorporated in^k the Union of tbe United States, and be admitted at tbe ^K>er time, (to be judged of by tbe Congress of tbe United to tbe enjoyment of all tbe rights of citizens of ^|Hbited 'States according to tbe principles of tbe con-&c. Tbis article in our conception, is nothing less than a promise, that, at some future day, Con-admit California into tbe Union, and those Mexi-^^^^^Hhave not retained tbeir Mexicansbip, shall be re-^^^^^^^nuembers of tbe new State, entitled to all tbe ^^^^^^^uzens of tbe United States according to tbe ^HH^^^kthe Constitution.

citizen of tbe United States, as by tbe eighth article of treaty Mexicans were permitted to become at their election, is one thing. “To be incorporated into the Union of the United States, and admitted to the enjoyment of all the rights of citizens of, the United States according to the principles of the Constitution,” is a very different and a very much more august thing, according to the opinion in those days prevailing as to the power and dignity of a sovereign State in the then Union.

The citizenship of the respondent, so far as it-could emanate from the treaty, is traced to the ninth article as its only possible source, in the opinion of appellant’s counsel. Why the eighth article, which is the true source of his citizenship so far as it comes from treaty stipulation, should have been overlooed by them and disregarded, it is difficult to understand. The appellant’s whole argument upon the point that the treaty is not operative of itself, but requires legislative action to give it effect, rests upon a mistaken supposition. It is not the ninth but the eighth article of the treaty that the respondent regards as the source of his right and authority to become a citizen of the United States, in the-exercise of the right of election-thereby conferred on him. And the respondent might well add, that if the said eighth article has not the meaning which he and all his countrymen imagined they saw plainly expressed on its face, it is the mosti ingeniously devised article for the" suggestion of a seiiouiJ mistake, that was ever introduced into a solemn treaty. A

Third — Now we come to the fulfillment of the promj^B made in the ninth article of the treaty. The respond^^B one of those Mexicans who did not retain his Mexioan^^H zenship, has been “incorporated into the Union United States, and admitted at the proper time H Congress appears to have thought it the proper enjoyment of all the rights of citizen's of the Unik^^^^^H according to the principles of the Constitution.

The Constitution of the United States gives in so many words, the right to admit new Union: “A State is a body politic, or society^^^^^^^^H together for mutual safety and advantage.” Nat. Law, 63.) This definition is not the best, because it is equally the definition of things which are not States; but it is true. States are societies of men united together for mutual advantage and safety. To admit a new State into the Union, is to admit a society of men united together for the purpose of government, into-a union composed of similar societies.

Governor Biley’s proclamation inviting the people of Cali-forni a to form a State Constitution, under which they might ask for admission into the Union, confers the right to vote for delegates to the Constitutional Convention, upon “every free male citizen of the United States and of Upper California, twenty-one years of age, and actually resident in the district where the vote is offered,” &c. (1 Hittel, 80.)

The Constitution formed by the Convention so elected, declares that every white male citizen of the United States, and every white male citizen of Mexico, who shall have elected to become a citizen of the United States, under the treaty of peace exchanged and ratified at Queretaro on the 30th day of May, 1848, of the age of twenty-one years, &c., “shall be entitled to vote at all elections which are now, or may hereafter be-authorized by law,” &c. (Const. Cal. Art. 2, Sec. 1.)

And further, “ every citizen of California, declared a legal |pter by this Constitution, and every citizen of the United ^i/tes, a resident of this State -on the day of election, shal entitled to vote at the first general election under this \titution, and on the question of the adoption thereof. k. Cal., Schedule, Sec. 5.)

Lereas, the People of California have presented a Con- and asked admission into the Union, which Const: - |ts submitted to Congress by the President of the |fees, ” &e. Be it enacted by the Senate and House Miatives of the United States of America, in Coupled, that the State of California shall be one, • declared to be one of the United States of admitted into the Union on an equal footing k States, in all respects whatever.”

Who were the “People of California who presented a Cons bitution and ashed admission into the Union?” They certainly included all persons who had the right to vote for delegates to the Constitutional Convention, and upon the question of the adoption of the Constitution. The makers of the organic law of the State must be considered members of the body politic which it creates. It was they “who presented the Constitution and asked admission into the Union;’ and it was they who were admitted into the Union under the name of the State of California. And they were admitted on an equal footing, in all respects whatever, with the several peoples, wrho, under the names of the several States which they respectively composed, made and originated the Union. To say that any one individual of the aggregate, called the People of California, thus admitted into the Union, is not thereby made a citizen of the United States, if he was not one before, is to assert what appears to us simply impossible.

How did there ever come to be a citizen of the United States, if it was not by virtue of the voluntary coming together under the Constitution of the United States, of the independent and sovereign communities, who severally acquired their independence and sovereignty when they renounced allegiance to the British Crown. So entirely independent of each other were these communities, that thei Constitution of the United States makes no claim to the adhesion^ of any one of them; but, in so many words disclaiming such a,right, submits itself to the consideration of e/ich separate people or State, as a desirable union for the /purposes of mutual welfare and common defense. “The,Tatifi-forthe establishment of this Constitution between the States so ratifying the same.” (Const. U. S., Art. YII.)7

In the interval between the declaration of independence, and the adoption of the Constitution of the United States, each colony, assuming the sovereignty and th© name of a State, regulated, by its own legislation and fo4 itself exclusively, the whole-matter of citizenship and allegiance. There were citizens of Virginia, New York, Georgia, &c.; but there was no citizen of any government common to the colonies. These facts are matters of history. (See, on this point, Ingles v. Trustees of the Sailors’ Snug Harbor, 3 Pet. It. 99.)

How then did there come to be a citizen of the United States ? As soon;as the Conventions of nine States ratified the Constitution, it became an established government for the States that'ratified it. The citizens of those nine States were the first citizens of the United States. But the people of California, that is to say, those persons who, in the language of the Act of Admission, “presented a Constitution, and asked for admission into the Union,” were admitted therein under the name and style of the State of California, on an equal footing with the original States, in all respects whatever. Why the name “People of California,” as used in the Act of Admission, should be construed to mean the citizens of the United States residing in California, passes our comprehension. The counsel for the respondent can find no reason for the limitation in the want of congressional power, for Congress has a right to admit a new State into the Union, every one of whose citizens, before admission, was an alien to the United States. And so far from finding any circumstance in the relations between California and the Federal Government, to warrant such mutilation of the vname, those relations would fully justify the enlargement of , a doubtful term, so to embrace the whole class of Mexicans domiciled in California, to whom incorporation “into the Ui^on of the United States,” and admission “to the enjoyment of all the rights of citizens of the United States,” had been\prómised by treaty. Certain it is, that if the name Peoplé of California, in the Act of Admission, does not embrace ‘\the Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican [Republic,” our government has utterly failed to fulfill its promise of incorporating such Mexicans into the Union of the United States; nor Vs it easy to see how, under the circumstances, that promise^ can how be fulfilled. For the promise to incorporate those Mexicans domiciled in California, who shall renounce allegiance to Mexico, into the Union of the United States, means nothing more nor less than to admit them as a body politic or State into the Union. To naturalize individuals is quite a different thing from incorporating a large body of men, domiciled in a certain territory, into the Union of these United States.’’ But Congress has incorporated one body of men inhabiting California into the Union of these United States. If this body of men does not include those Mexicans in California, whose incorporation “into the Union of the United States,” and whose admission to “the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution,” was so emphatically promised by the treaty, how is the treaty stipulation to be carried out ? We are inclined to believe that Congress has not violated the promises of the treaty by rendering their fulfillment impossible. On the contrary, if we are not to attribute to Congress wanton bad faith, and the most plentiful lack of statesmanship, we must believe that the Constitution which was presented by the people of California to the Congress of the United States, when they asked admission into the Union, was carefully examined by that body of legislators, with special reference to the question : whether by said Constitution, the Mexicans domiciled in California, to whom incorporation into the Union of the United States had been promised, were- clearly, and beyond' the possibility of doubt, made members of the body politic ■ — named the State of California — then asking admission, 'Ordinary good faith could not fail to prompt such an inquiry; nor would any legislator, who had the least regard for decency, have failed to denounce the Constitution and to refuse admission to the State, if the Mexicans to whom incorporation into the Union had been promised, had been denied membership in the body politic.

The only question, then, that the logic of this case admits of is: Was the respondent a member of the body politic which was admitted into the Union under the mame of the State of California? Was he one of the people of California, within the meaning of that terfn in the preamble of tbe Act, wbo presented a Constitution and asked admission into tbe Union, and were admitted ? How is tbat fact to be determined ? Solely by tbe Constitution of California; and if, by tbat organic law, tbe respondent was not made a member of tbe body politic, or State of California, or in one word, a citizen of tbe State of California, tben there was no sucb thing as a citizen of tbe State. For tbe Constitution does not declare by formal definition, wbo shall be citizens of tbe State, but, in conferring tbe right of suffrage, it describes as citizens of California all persons wbo are declared legal voters by this “Constitution,” to whom, as well as to every citizen of the United States a resident of this State on tbe day of election, tbe right to vote at tbe first general election under tbe Constitution, and on tbe question of tbe adoption thereof, is given. (Schedule, Sec. 5.) Tbe respondent was a member of tbe Convention which framed tbe Constitution, as rightfully a member as any other gentleman wbo was delegated to perform tbat duty. Tbe Constitution gave him tbe right to vote upon tbe question of its adoption, and describes him as “ a citizen of California, ” entitled to vote at all elections which are now or hereafter may be authorized by law.” (Const. Cal., Art 11, § 1. Schedule, § 5.) Add to this tbat-California bad been in tbe full and undisputed exercise of all tbe powers of a ''State for at least eight months before its admission into the tJnion, during which time, and at tbe date of admission, tbe respondent represented tbe Senatorial Districts of Santa Barbara and San Luis Obispo in the Senate of tbe State, andVe think there can be little doubt tbat be was one of tbe people of California wbo presented tbe Constitution and asked admission into tbe Union,

Tbe appellants’ counsel say: “ Tbe case of Texas offered no difficulties. Here we were-dealing with an independent republic.” If we understand tbe counsel’s argument, it is this: All persons wbo, by tbe organic law of Texas, were citizens of ÍTexas at tbe time of its admission, became citizens of tbe United States by virtue of tbe admission; but the Constitution of California discriminates between tbe citizens of the United States and the Mexicans who bad elected to become such, and therefore the Mexicans were not members of the body politic, called the State of California, which was admitted into the Union, and did not thereby become citizens of the United States. There would be some force in this argument if the discrimination referred to excluded said Mexicans from membership in the body politic which was created by the Constitution. But unfortunately for the counsel’s argument, the discrimination is resorted to by the Constitution solely for the purpose of describing two classes of persons, both of which classes are to be considered citizens of the State. If there be any doubt as to the inclusion of either class in the term “citizens of California, ” it cannot refer to the Mexicans who had elected to become citizens of the United States; for they are described in the schedule, section 5, as citizens of California, declared legal voters by this Constitution. Thus the real discrimination is between the white male citizens of Mexico, who have elected to become citizens of the United States, upon whom the right of suffrage is conferred by the first section of the second article of the Constitution, and who, by section 5 of the schedule, are described as citizens of California, and citizens of the United States resident in California. The discrimination is against the citizens of the United States, inasmuch as a distinction is made between them and citizens of California.

We refer the Court to the cases of Cryer v. Andreios, (II Texas Reports, p. 182); and to Desbois’s case, (Martin La. Rep. N. S. 285); and to the case of Uie United States, v. Laverty, decided in the District Court of the United States, and reported in the same volume of Martin, p. 747. Those cases fully establish the respondent’s citizenship., /

In the case from Texas, the Court says: “ For whether the time be computed from the death or from the Act, still nine years had not elapsed before the consummation of annexation between Texas and the United States;/ and from' that time the plaintiff (a citizen of Arkansas) became virtually a citizen of Texas, and entitled to tMe privileges and immunities of citizenship.” * * “This position seems so clear that comment in support of it is unnecessary. When the Congress of the United States, under tbe authority to admit new States, receives a foreign nation into the confederacy, the laws of those respective nations, in relation to the naturalization of individual emigrants, have no application to the respective citizens of each. By the very act of union, the citizens of each become citizens of the government, or governments formed by this union. The position which has been sometimes broached, that the citizens of Texas must submit to the laws of naturalization before they can become citizens of the United States, is quite preposterous.” (Id. p. 83.) Now what is said of Texas is true of California. For it is obvious that the civil status of the citizens of the admitted State, considered in reference to the Union, depends, not upon the previous condition of the admitted State, but solely upon what it became by reason of its admission. It is its admission as a State into the Union which places it in such a relation to the Union, that its citizens become citizens of the Union, and all the citizens of .the latter become its citizens. By entering the Union all the States assume an equal footing, whatever differences before then may have existed between them in respect to independence and sovereignty.

The effect of incorporating a State into the Union upon •an equal footing in all respects whatever with the original ¡States, is to render its condition such as it would have bejen had the new State been a party to the adoption of the Constitution of the United States^ In this point of view we' are inclined to deny the correctness of the position of the Xearned Judge, who, in DesboiSis case, above cited, says ihat admission into the Union is the naturalization of a larga body of men by a single act. In our view of the matter, \ those who were citizens of California at the moment \ of her admission into the Union were not 'naturalized thereby. They became citizens of the United States by ¡a much higher warrant, precisely as the citizens of Virginia Vnd Massachusetts and Georgia became citizens of the United States wben they adopted tbe Constitution; and tbey certainly were not naturalized citizens.

Tbe Constitution of tbe United States (Art. 1, Sec. 2) declares that no person shall be a representative, who shall not have been seven years a citizen1 of tbe United States wben elected, &c. And in Art. II. Sec. I, that no person, except a natural born citizen, or a citizen of the United States, at tbe time of tbe adoption of tbe Constitution, shall be eligible to tbe office of President. As it was tbe adoption of tbe Constitution by tbe Conventions of nine States that established and created tbe United States, it is obvious there could not then have existed any person who bad been seven years a citizen of tbe United States, or who possessed tbe Presidential qualifications of being thirty-five years of age, a natural born citizen, and fourteen years a‘ resident of tbe Unitéd States. Tbe United States in these provisions, means tbe States united. To be twenty-five years of age, and for seven years to have been a citizen of one of tbe States which ratifies tbe Constitution, is tbe qualification of a representative. To be a natural born citizen of one of tbe States which shall ratify tbe Constitution, or to be a citizen of one of said States at tbe time of such ratification, and to have attained tbe age of thirty-five years, and to have been fourteen years a resident within one of tbe said States, are tbe Presidential qualifications, according to tbe true meaning of tbe Constitution,

California having been admitted into tbe Union on. a footing of equality with tbe original States, in all respects whatever, must be considered as having come intoi tbe Union, Congress permitting, by ratifying tbe Constitution of tbe United States. To be a State of tbe Union,' on an equal footing in all respects whatever with thos^ States which became members of tbe Union by their ow/n voluntary ratification of tbe Constitution which created it, is to be entitled to all tbe rights and privileges wlaich would result from entrance into tbe Union, in ill® mode prescribed by tbe Constitution for its own primonffial establishment. "We therefore bold that tbe xesporMent became a citizen of tbe United States in precisely tbe same way as Tbomas Jefferson and all tbe other signers of tbe Declaration of Independence, that is to say : by virtue of tbe ratification of tbe Constitution of tbe United States by tbe conventions of tbe several States of wbicb respectively they were citizens. Tbe ratification of their own Constitution by tbe people of California, is tbe ratification of that of tbe United States ; for in tbe 12th Section of tbe Schedule it is provided, that “ tbe senators and representatives to tbe Congress of tbe United States, elected by tbe Legislature and people of California, as herein directed, shall be furnished with certified copies of tbe Constitution, when ratified, wbicb they shall lay before tbe Congress of tbe United States, requesting, in tbe name of tbe people of California, tbe admission of tbe State of California, into tbe American Union.” Here was tbe ratification of tbe Constitution of tbe United States by a convention of tbe State of California, wbicb, together with tbe consent of Congress, signified by tbe Act of Admission, made California a State of the Union — tbe equal in all respects whatever of tbe original States. Tbe original States agreed among themselves upon tbe manner in wbicb each one might come into tbe contemplated Union if it pleased, and gave to Congress the power to admit new States upon tbe same terms. Tbe coming into tbe Union of an original State, depended solely on its own will made known in a prescribed mode. Tbe coming into tbe Union of a new State, depends not on its own will alone, but also on tbe will \of Congress, and that is tbe only difference between tbe twp cases.

Contended that, if, as contended by respondent, tbe eighth anVl ninth articles of tbe treaty of Queretaro make all citizens'* treaty, who \did not within one year elect to remain citzens of Mexico, civ^ens of tbe United States without any Act of Congress, then*he Constitution of tbe State of California is repugnant to that treaty; for, by that instrument, a discrimination is made between white citizens of Mexico and Negroes and Indians, who were as much citizens of Mexico as white persons.