Section 10. That in case the petitioner has not resided in the

State, Territory, or the District of Columbia for a period of

five years immediately preceding the filing of his petition he

may establish by two witnesses, both in his petition and at the

hearing, the time of his residence within the State, provided that

it has been for more than one year, and the remaining portion of

his five years’ residence within the United States required by law

to be established may be proved by the depositions of two or more

witnesses who are citizens of the United States, upon notice to the

Bureau of Naturalization.

It will become evident as we proceed that the interpretation which

has been placed by the courts and the Naturalization Service upon

the distinction between the phrases, “two witnesses,” “at least two

witnesses,” and “two or more witnesses,” has in practice caused

a palpable absurdity from the point of view of common sense, and

inflicted crying hardships and wrongs from the point of view of bare

justice. Upon the humanity and good sense of the court, interacting

with the same on the part of the representatives of the government,

has depended to a very great degree the sensible interpretation of

these and other provisions of the law; but in general both are bound

by its letter, and in many instances they have been forced to reject

petitions which, on the sane merits of the case, should have been

accepted.

V

THE LAW IN OPERATION

Commissioner Campbell, in his annual report for the fiscal year

ending June 30, 1914, described in some detail the operations of the

field service of his Bureau in the handling of the applicant for

citizenship:

The headquarters of the various districts are located in the

large cities, where the greatest number of aliens apply for

naturalization, and in the public buildings or in close proximity

to the courts.[64] In many of the cities where the examiners are

in the same building with the court, it is the practice of the

alien to appear with his witnesses first in the office of the chief

examiner. Here an examination is made in advance of any work in the

office of the clerk of court. The examiners, specially trained in

the work, first ascertain whether the alien arrived in the United

States prior to the passage of the Act of 1906. If he arrived

prior to the passage of the Act, the examiner then ascertains,

before assisting him in taking the second step in the process of

naturalization, whether the alien has a declaration of intention

that has matured.[65] If he has arrived subsequent to the passage

of the Act, he ascertains whether the alien has been notified by

the Bureau that the certificate of arrival required by law to

be filed with the clerk of the court at the time of filing the

petition for naturalization has been placed there by the Bureau.

It may be stated here that when an alien applies for a certificate

of arrival, the Bureau notifies him when it has been obtained and

forwarded to the clerk of the court selected by the alien in which

to file his petition for naturalization, and he is directed to

proceed with the filing of his petition at the earliest practicable

moment.

Upon learning that the certificate of arrival has been obtained,

the examiner interrogates the candidate to learn his qualifications

for citizenship and records the results of his examination. He

then examines the witnesses to be reasonably certain that they are

American citizens, that they are credible and of good character,

that they have personally known the applicant for the statutory

period, and can intelligently testify both as to his residence

and good behavior during the period required by the statute to be

ascertained and shown to the satisfaction of the court.

The examiner also sees that the blank form furnished by the

Bureau for setting forth the statements required to be embodied

in the petition for naturalization is correctly prepared. When

the examiner finds affirmatively in all of these respects, he

marks the filled-out blank with his initials and sends it with the

petitioner and his witnesses to the office of the clerk of the

court, where nothing further is to be done than the simple clerical

work of filling in the petition, original and duplicate, from the

blank, securing the signatures and affidavits of the petitioner

and his witnesses, filing the triplicate copy of the declaration

of intention and the certificate of arrival with the petition, and

notifying them as nearly as may be of the date of the hearing.

This method prevails in large cities where the examiners are

located in the buildings with the courts. The advantage to the

residents of these large cities, in the saving of time and money

to the petitioners and their witnesses, is readily discerned when

it is considered that probably fifty thousand applicants for

citizenship annually might follow this course if the conditions

in each large center admitted of its being done. The advantage

to be derived from having the candidate and his witnesses appear

before the naturalization examiner in advance of his appearance

before the clerk of the court were early recognized by one of the

United States district courts, where a large number of petitions

for naturalization are filed annually, and an order of court was

entered accordingly. In other courts, while the practice has not

received this formal recognition, the consistency with which it

is observed is none the less definite. This practice prevails in

at least one city where the office of the chief examiner is not

located in the building with the court.

Further emphasizing the advantages of this practice, the Commissioner

remarks that it enables the examiner to dispose of a large number

of cases, and tends to obviate denials on such grounds as “that

the petitioner is already a citizen”; “incompetent witnesses,”

“insufficient residence,” “no certificate of arrival,” “declaration

invalid,” “premature petition,” etc.--“unless, as is sometimes the

case, a petitioner is obstinate and insists on taking his chance

of admission by the court against the advice of the examiner.” The

Commissioner goes on to say:

In some cities, by reason of the lack of proximity of the office of

the examiner to that of the clerk of the court, the system does not

prevail of having the candidate appear first before the examiner,

... but efforts have constantly been made to augment the prevalence

of the practice, and since the great bulk of the naturalization

work is in the large centers ... the plan described, with the

restricted means provided therefor, admirably accomplishes the

effective disposal of the mass of work arising under the operation

of the law wherever it has been adopted.

Referring to the work in regions apart from the great cities, the

Commissioner said, in his report for 1912-13:

In a few of the districts there are what may be called

sub-stations, where an examiner is located by his chief to attend

to work in the vicinity of such sub-station, ... to reduce the

travel expense and to bring the service in actual personal contact

with the public and the courts as intimately as possible.

For the rest, and the far-outlying, sparsely-settled regions, where

a person desiring citizenship must travel with his witnesses perhaps

even hundreds of miles not once, but twice in any event, and in some

cases several times, to and from the court having jurisdiction over

the territory in which he lives, the situation is not so simple.

To persons completing by the essential of American Citizenship

their title to a homestead on the public lands--necessarily and

characteristically in such sparsely settled regions--this item

of travel, expense in both money and time for three persons, to

say nothing of other hardships and exasperations involved in the

meticulous technicalities of the law and practice, not infrequently

is a raw tragedy. Neither provision by Congress nor administrative

arrangement or concession in enforcement by the Naturalization Bureau

or the courts has materially mitigated the hardships involved in such

cases.

RESTRICTIONS OF RACE

Not every alien, whatever his character or good disposition toward

the “good order and happiness” of the United States, or his

willingness to “support and defend the Constitution and bear true

faith and allegiance to the same,” can become a citizen of the United

States. He, or she, must be either white, or black--or, in the case

of the American Indian, red. And if black, he, or she, must be of

_African_ descent. A long series of decisions has been necessary to

define exactly what races are excluded; with the result that it is

now, for practical purposes, well established that naturalization

cannot, under existing laws, be granted to Chinese, Japanese,

Hawaiians, Burmese, or the black or brown natives of India.

It is not our province here to discuss the merits either of the

racial limitation or of the somewhat vague definition that has

been arrived at; it must suffice to outline the situation. The

Naturalization Law of 1870 limited naturalization to “aliens being

free white persons; and to aliens of African nativity and to

persons of African descent.” This was enacted in the tense days of

Reconstruction after the Civil War, and was a natural but wholly

unnecessary fling at the South. All American negroes are citizens

of the United States by virtue of their birth in this country,

and those who come here from Africa are likely to be incapable of

passing the naturalization tests. Congress never has enacted a

clear definition of the term, “white person,” and endless confusion

has existed. Hawaiians, Afghans, Chinese, Syrians, Turks, and Fiji

Islanders, all have been admitted by some courts and excluded by

others. The Commissioner of Naturalization at one time directed the

field force to oppose vigorously the admission of any Asiatic. A

non-Mongolian Turk, married to a white woman literally Caucasian,

would be surprised to have his son excluded as not a white person;

but such folk, and many others white by any common-sense definition,

were excluded, the courts usually accepting as the judgment of

experts the contention of the naturalization examiners; until finally

the ruling was rescinded, and the matter has since then been left

largely to the discretion of the courts, which have substantially

settled the question so far as it may be settled in absence of a

clear constitutional or legislative definition, such as exists

specifically in the Act of 1882 excluding the Chinese by name. As the

law and decisions stand now, the same definition which will admit

an African deckhand or cook excludes a Japanese prince or a Hindu

university graduate.[66]

As for the Filipinos, it was held, in 1915, by the Supreme Court of

the District of Columbia, that a Filipino is neither an alien nor an

African, and that, therefore, he did not come within the provisions

of the law limiting naturalization to white aliens, or black ones of

African descent; that the Filipino then before the court could and

would be naturalized under the section providing:

That all the applicable provisions of the naturalization laws of

the United States shall apply to and be held to authorize the

admission to citizenship of all persons not citizens who owe

permanent allegiance to the United States, and who may become

residents of any State or organized Territory of the United States.

In another case (not, however, involving clearly the question of

racial color) a native of the Philippine Islands, of full Spanish

paternity, but of half-breed blood on his mother’s side, was admitted

by the same court.[67]

There was a dubious situation regarding Porto Ricans; for it was

held at first that, when the United States acquired Porto Rico and

the Philippines by the Spanish War, these peoples came under the

“protection” of the United States, but did not thereby acquire status

as citizens. The Act of Congress, March 2, 1917, cleared up this

situation, however, declaring permanently resident Porto Ricans to be

citizens, unless they owed allegiance to a foreign country, or within

six months after the passage of the Act specifically refused American

citizenship. This Act created the judicial “district of Porto Rico,”

and definitely vested naturalization jurisdiction in the United

States District Court for that district, declaring residence in Porto

Rico to be tantamount, for naturalization purposes, to residence

anywhere else in the United States.

The Act of May 9, 1918, which swept into eligibility for immediate

citizenship upward of two hundred thousand aliens serving in the

army, navy, marine corps, and merchant marine, definitely extended

the privilege to several classes, including Filipinos and Porto

Ricans, regardless of every consideration other than military

service, and it has been interpreted in favor of even Chinese and

Japanese in those branches of the national war employ.[68]

LIMITATIONS REGARDING AGE

The present law says clearly that an alien may not make a declaration

of intention until he is eighteen years old. The old law contained

a provision to the effect that anyone who arrived in the United

States before the age of eighteen could, after he had been here the

required five years, become naturalized by virtue of one proceeding,

which was held to constitute both declaration and final petition.

Otherwise, nothing was said in the old law regarding the age required

for declaration; an alien must be twenty-one, however, in order to

be naturalized. There was a good deal of uncertainty and confusion

on this point, both the Naturalization Service and the courts

taking varying and inconsistent positions from time to time and in

various jurisdictions. This is of only academic interest now; but

the situation is still somewhat dubious, because an alien can file

his declaration at the age of eighteen, and in a strict construction

of the law he can file his petition two years later at the age of

twenty. Some courts have so construed it. It is generally customary,

however, for the courts to insist upon the age of twenty-one

before granting citizenship; although one should bear in mind that

citizenship does not necessarily involve the suffrage, and all states

of the United States require attainment of twenty-one years before

the citizen can vote.

THE DECLARATION OF INTENTION

So far as anything in the law goes to prevent, the immigrant can

make his way immediately from the vessel that brings him, after

the immigration authorities have admitted him to these shores, or

across the Canadian or the Mexican border, to the clerk’s office in

“any court having a clerk, a seal, and jurisdiction over actions at

law or equity, or law and equity, without limit as to amount,” and

within an hour of arrival file his declaration of intention to become

an American citizen. Of course, he doesn’t do that--unless in very

rare instances. The available statistics go to show that, in the

average case, he waits nearly seven (6.8) years.[69] But whenever he

files it, it will be good (unless some blunder of the clerk, or some

technical defect which the clerk overlooks, makes it invalid from the

outset) for seven years. It cannot be made the basis of a petition

for citizenship until two years after its date, and there must have

been, before or after its date, at least three years’ additional

residence in the United States to make up the required five years,

and the last year of the five must have been passed “continuously”

within the state or territory in which the final petition is filed.

Mr. Alien would better be very careful that his declaration is

properly made out, on the identical printed form furnished by the

Bureau of Naturalization; he must file it in the office of the

clerk, and not deliver it to him at his house or on the street

corner. He may not hear anything about this at the time; but seven

years afterward he may be brought up standing by the fact that

it is invalid because of just such a defect. In the case _in re_

Brefo (217 Fed., 131-134) it was held, in 1914, that a declaration

otherwise correct, but in typewriting, not on “the form furnished for

that purpose by the government,” was a “legal nullity.” Were such

an enormity permitted, the court said, there would be “an end to

uniformity”; government control and supervision could not exist! And

in the case _in re_ Langtry (31 Fed., 879), as long ago as 1887 the

court declared that the clerk had no authority to take acknowledgment

of declaration of intention at the home of an alien. Numerous other

cases in Pennsylvania, Illinois, Kentucky, North Carolina, Florida,

have settled the fact that the clerk’s office, or open court, is the

only place where a valid declaration can be filed.

If the clerk is without the proper blank forms, because he neglects

to keep himself supplied, or because the Naturalization Bureau at

Washington fails to heed his request for them, there is nothing for

the would-be declarant to do but go home--perhaps many, or in some

cases as much as two hundred and fifty miles--and subsequently try

again.

As has been said, he must be very particular about the words that

he or anyone else writes on the blank when he does get it. If he

files his declaration in a court which has much naturalization

business, it is likely that the clerk or his deputy will see that it

is letter-perfect; but if it is his fortune to reside in a district

where naturalizations are few, or where the clerk regards the whole

transaction as a nuisance, he may be permitted to make a fatal

mistake or omission and remain in blissful ignorance of that fact for

anywhere from two to seven years--until he goes before the court with

his final petition and finds that because his declaration was from

the beginning technically defective he must file a new one and wait

at least two years more.

“DECLARATION INVALID”

This, in fact, has been a very common occurrence. During the period

1908-18, 8.5 per cent of all denials of naturalization petitions in

the United States were on the ground of “declaration invalid”; that

this percentage is made up of figures[70] tragically high in some

districts may be recognized in the fact that in Nebraska it was 23.8,

in Indiana 21.3, in Oregon 18.7, in Kansas 18.6, in Massachusetts

14.4, in Montana 13.2, in Iowa 12.5, in Arkansas and Idaho 11.3, in

Washington 10.9, in Oklahoma 10.4. The petition of an Englishman

applying for citizenship in Colorado was denied upon motion of the

government’s representative, because in his declaration seven years

before he had renounced “King Albert,” when, in fact, the name of the

then potentate of Great Britain was “Albert Edward”![71] As the court

in that case truly said:

The act of renouncing the allegiance which one owes to a government

or sovereign, and taking upon himself a new allegiance, is too

solemn and important an act to be loosely performed, or to be

surrounded by any uncertainty or doubt. No presumptions are

indulged with respect to it.... The declaration of intention must

in all material matters comply with the strict letter of the Act.

The court may not rectify _nunc pro tunc_, as in most other kinds of

litigation, technical blunders made in good faith or inadvertently

by the declarant, or even by the clerk of the court in which the

declaration was filed. All the responsibility lies upon the alien.

In the unreported case of John Pollock, in the Philadelphia Court

of Quarter Sessions, in 1915, the petitioner had honestly believed

himself to have acquired German nationality from the flag of the

German ship on which he was born, en route to the United States, of

Russian parents coming here with intent to abandon their Russian

nationality, and in his declaration had forsworn the German

sovereignty; but the court held that the honesty of his mistake

could not avail him--“Unfortunately it is impossible to amend

his declaration; ... the application must be denied.” Through a

misunderstanding of the intricacies of political geography in the

then Austria-Hungary, a petitioner who actually was born under that

sovereignty erroneously renounced the German Emperor. In that case,

when, three years later, upon his final petition for naturalization,

the court undertook to amend the declaration, its power to do this

was denied upon the government’s appeal.[72]

Five Austrians went in a body to the office of the clerk of the Court

of Common Pleas in Hudson County, New Jersey, to file declarations of

intention. Doubtless they were very glad, and very grateful, to have

the clerk on duty fill out the required blanks for them! Two years

or more later, when they marched proudly and anxiously into court to

complete their citizenship, their petitions were denied--“declaration

invalid,” because, forsooth, as the court in its decision explained:

... The clerk who filled out their papers _assumed them all to

be German_, and noted this in the declaration accordingly. The

applicants contend that the error was a clerical error on the part

of the clerk, and that their renunciation also included other

sovereigns, rulers, or potentates. This, however, is not sufficient

under the statute.

There are many other cases, in widely separated jurisdictions, to

similar effect, showing, in general, that the courts sustain the

contention of the Naturalization Service that the law does not permit

the rectification of even innocent blunders in the declaration, no

matter by whom or in what circumstances they are made.

Who, then, is to see that the technicalities thus insisted upon in

the enforcement of the law as it reads are duly and truly observed?

Surely not the alien! His care of his own interests is, in the

nature of the case, ill-informed, and under the existing conditions,

improved as they are in comparison with those prevailing in former

times, he is at the mercy not only of the sometimes careless,

begrudging, or perhaps well-intending, but better-informed clerk of

the court, but of many kinds of extra-legal assistants who, whether

with good or with sordid motives, undertake to give, or maybe to

sell, advice or instruction--to say nothing of pretended “influence”

which, anywhere up to seven years later, when the mischief cannot be

remedied, may turn out to have been worse than worthless.

Of vital importance and significance, far beyond what would be

gleaned from a superficial reading of the words, becomes in this

connection what the Commissioner of Naturalization said in his annual

report of July 1, 1912:

The great bulk of the work of the Division [now the Bureau of

Naturalization] consists of the examination of the naturalization

papers filed in or issued out of the courts. It has never been

possible, with the clerical aid supplied, to keep abreast of this

work. Concluding the first year with a large number of papers not

examined, that condition has grown more and more serious.... At the

present time it must be stated that no examination of declarations

of intention has been made since October, 1910, and not more than

30,000 certificates have even been examined. Correction of errors

in the latter papers, [final] certificates of naturalization, are

perhaps less necessary, but the declarations are used as the basis

of petitions for naturalization, and defects in them may result

in the denial of such petitions and a further delay of two years

to the applicants for citizenship. Beginning with October, 1912,

declarations which have not been examined will mature, and these

aggregate 298,000 in number.[73]

That the Bureau of Naturalization is aware of the desperate

importance of this matter to the aliens appears not only in so many

words in the Commissioner’s own utterances, but in legislation

proposed by the Bureau which would tend to remedy it. In the same

report (1912), after describing the strenuous efforts of the clerical

force to catch up in particular cases with the dates of final

hearings, Commissioner Campbell said:

To any easy assumption that errors in a declaration may be

corrected at the hearing of the petition, the answer is

plain--that no change can be made if the declaration was filed, as

it frequently is, in a court other than that in which such hearing

is held. It has also been decided judicially that a declaration,

complete in every respect, cannot be changed because of even

conceded error in its averments. It is therefore important that the

discovery by prompt administrative examination, of a defect, either

in the way of omission or error, be brought to the attention of a

declarant and the clerk of the court in which his declaration is

filed, so that either the paper may be corrected or the declarant

may file a new declaration, and thus save time, expense, and

ultimate disappointment.

All of which has the color of mockery in the light of the fact that

at the date of that report there lay in the files of the Bureau

nearly three hundred thousand unexamined declarations, all of which

would mature within the ensuing three months!

The legislative proposals to remedy conditions so far as inadvertent

errors in the declaration are concerned, include, for instance,

a proposed amendment[74] to Section 4 of the Naturalization Law,

providing that

... any averment required to be made in the declaration of

intention that may be shown to have been made erroneously, but

with no intention to violate or evade the requirements of the

naturalization law, may be corrected by order of the court in which

the declaration was filed, or by the court in which it is presented

as a basis for a petition for naturalization.

SHOULD DECLARATION BE ABOLISHED?

Some belated survival of Commissioner Campbell’s earlier belief, as a

member of the Naturalization Commission of 1905, that the declaration

of intention should be abolished as superfluous and as a prolific

source of errors, appears in his concluding paragraph under this

head, wherein, after alluding to the increasingly urgent appeals for

more clerical assistance, which had characterized virtually every one

of his reports since the establishment of the Naturalization Service,

he adds:

If the object to be obtained does not justify the additional

expenditure that it involves, then the declaration, as a matter

of common justice to applicants for citizenship, if not for the

practical reasons stated ... in the Report of the Commission of

Naturalization to the President, dated November 8, 1905, should

be stricken from the law. It may be suggested that the effect of

such action upon the exercise by alien declarants of the elective

franchise in certain states would be merely to cut off future

supplies of such voters.

It is indeed true that many careful, experienced, and judicious

students of the naturalization problem have on many grounds favored

the abandonment of the declaration of intention. The arguments in

this behalf are plausible while there are states in which aliens

holding “first papers” (declarations of intention) are entitled to

vote. As for the others, the reasons to the contrary seem to the

present writer to outweigh them. Regardless of the suffrage, in

many states the declaration entitles the holder to certain property

rights; many employers, and even municipalities, require at least the

declaration before they will permit employment. The best reason of

all, regarded by a majority of the naturalizing judges as of vital

importance, is that the declaration, and the interval of at least

two years which must elapse before the declarant can file his final

appeal for admission to citizenship, afford a period of probation,

not only of substantial psychological value as affecting the alien

himself, but giving the government opportunity to observe the conduct

of the individual and to investigate his antecedents, and the

person’s neighbors and the public generally due notice that he is an

aspirant for active membership in the community.

On more than one occasion Mr. Campbell, who more than perhaps anyone

else might be regarded as an expert on the subject of naturalization,

favored the abolition of the declaration of intention. As late

as 1910, testifying before the Committee on Immigration and

Naturalization of the House of Representatives, he said:

I think I am on record as advocating the abolition of the

declaration of intention, anyhow.

That this is no longer his view, or that of the Bureau, appears

somewhat emphatically in the following excerpt of the annual report

bearing his signature, for the fiscal year ending June 30, 1917:[75]

Many theorists in the United States, when there was no Federal

supervision of the naturalization law, conceived the idea that

the declaration of intention was a purely superfluous act; that

the certificate of the declaration of intention was a superfluous

document. Many of them still retain that idea, having made no

advance in their studies, or being unacquainted with the experience

of the Federal administrative force. There is nothing that has

arisen in the experience of the Bureau of Naturalization, in the

ten years of Federal supervision, that justifies this idea that the

declaration of intention should be abolished.

The Americanization work of the Bureau, based as it is upon the

declaration of intention, is the only point of contact the Federal

Government has with the individual alien from the time he lands

upon our soil. The use of the declaration of intention by the

Bureau in sending the names to the public schools and bringing the

aliens of every community into close relationship with them has

forever settled the question of the value of the declaration of

intention.

This is only a new use to which this “first paper” (an instrument

which is peculiarly an American institution)[76] has been put.

If this were the only use to be made of it, it would justify its

continued existence. As it is, it is used and interwoven into the

administrative fabric of the Government in its contact with aliens

throughout the United States. It is a means of identification by

which the alien makes known his right to take up Government land;

by which he may secure employment in municipalities and in State

improvement work; by which membership in many organizations may

alone be secured. It is the indication of the announced purpose of

the alien to forswear his allegiance to his sovereign and to choose

the Constitution of the United States as his new allegiance. It is

woven throughout the warp and woof of our national laws and our

social and economic organizations.

NATURALIZATION JUDGES FAVOR ITS RETENTION

Of 323 judges of naturalizing courts all over the United States

who answered definitely on this point the questionnaire of the

Americanization Study, 241 opposed, more or less emphatically, the

abolition of the declaration of intention, only 82 favoring its

abolition on one ground or another, but principally because they were

aware of no good purpose served by it.

One United States district judge rather picturesquely described its

function:

This country cannot afford to have it said that we are urging

citizens of other countries to renounce their allegiance and take

up citizenship with us. That would be wrong from every standpoint.

On the other hand, if they do want to become American citizens,

it is our duty ... to help them fit themselves. If you take away

the declaration of intention you will destroy our opportunity in

that regard. The young lady who meets a young man and likes him,

would be very much out of place if, without any other tie between

them, she began to tell him what she wanted him to do, what she

wanted him to study, and how she wanted him to study, what she

wanted him to drink, and how she wanted him to dress. It would

be very immodest and impolite, to say the least. If that young

man had made her a proposal of marriage, and she were considering

it, these suggestions from her would be entirely proper, and she

would be performing her duty to the young man and to herself. This

illustrates, I believe, the proper limits within which our country

can guide, advise, and direct aliens who through the declaration

of intention have made, as it were, a proposal of marriage, with

reference to preparation for citizenship.

Sound objections to abolition of the declaration appear also in

connection with the property rights as regards homestead entry and

other matters under both Federal and state laws--a complicated

matter in addition to the great confusion existing by reason of the

laws of those states which conferred the right to vote upon holders

of so-called “first papers.” With the removal of this right, much

of the objection to the declaration of intention disappears. As it

was, under such laws, an alien might file a declaration of intention

every seven years as they expired _seriatim_, and, without any proper

inquiry, judicial approval, or supervision whatever, retain his right

to vote--citizenship for all practical purposes.

Many of the judges would permit no renewal of a declaration after

the expiration of the first; some would substitute registration upon

entry, annual, or even more frequent reports by the alien regarding

his whereabouts and behavior, and constant governmental _espionage_.

The declaration of intention, particularly if it be properly guarded

and solemnized, puts everybody, at least constructively, upon notice

that a new member is applying, and requires the declarant himself

to keep that application in mind for two years. He cannot suddenly

decide, by reason of some special condition or inconvenience, to

apply for citizenship and consummate the process in three months,

as he could do if the declaration were abolished without extending

the interval between petition and certificate. The defects in the

present system are found in the fact that he can file his declaration

anywhere at will, in a form so defective that two years or more

later it nullifies his petition; he can be grafted upon and bled

_ad libitum_ by all manner of exploiters claiming to be able to

assist him. However valuable in theory, in practice it is far too

hit-or-miss.

The declaration should be surrounded by a very much greater degree

of care and solemnity than at present. Not only should it be made

under oath and on properly guarded printed forms; when it is filed it

should be scrutinized and accepted as to substance, and by no means

be subject long afterward to rejection because of clerical or other

technical errors which ought to have been detected at the outset.

The St. Louis office of the Naturalization Service has taken a long

step in this direction, by securing the co-operation of many of the

courts in that district in the establishment of a custom by which

the declaration is accepted for filing only after it has been viséd

by the naturalization officers. This has no authority in law, but it

nevertheless is a wholesome practice, chiefly in the interest of the

alien declarant; incidentally it goes far to put out of business the

various kinds of parasites who exploit the ignorance and helplessness

of the aspirant for citizenship.

THE SEVEN-YEAR LIMITATION

The law of 1906 limited the life of a declaration of intention to

seven years. Prior to that there was no limit, and even after the

passage of that Act it was held in practice that it did not apply to

declarations made previously. But in 1913 the question was raised,

in the United States Court in New York City, whether it was not

the intent of Congress to apply the seven-year limitation to _all_

declarations. In 1914 the court ruled that it was. The effect of that

decision was to invalidate all declarations made prior to September

27, 1906, notwithstanding the express provision in the law that “no

alien who, in conformity with the law in force at the date of his

declaration, has declared his intention to become a citizen of the

United States, shall be required to renew such declaration.”

This decision was soon affirmed by the United States Circuit Court of

Appeals; but even then it was not uniformly observed, until January,

1919, when the United States Supreme Court put an abrupt stop to

the practice of accepting “old-law declarations” by affirming the

decision of the District Court at New York.

The effect of this final ruling by the highest court in the land was

tragic. Hundreds, if not thousands, of pending petitions, of aliens

altogether fit from every other point of view, forthwith became

invalid simply because based upon “old-law declarations” blighted

by the newly applied seven-year restriction. In one session of the

State Supreme Court in New York County a batch of more than seventy

otherwise acceptable petitions was denied for this reason alone.

The question of the effect of the decision upon certificates of

naturalization granted theretofore between its date and September 27,

1913, was met by Congress in the Act of May 9, 1918, by the following

provision:

Section 3. That all certificates of naturalization granted by

courts of competent jurisdiction prior to December 31, 1918, upon

petitions for naturalization filed prior to January 31, 1918,

upon declaration of intention filed prior to September, 27, 1906,

are hereby declared to be valid in so far as the declaration of

intention is concerned, but shall not be by this Act further

validated or legalized.

THE CERTIFICATE OF LAWFUL ENTRY

Assuming, now, that our alien is of the proper racial descent, the

accepted age, and that his declaration of intention will pass muster;

that he has lived in the United States for at least two years since

the declaration was filed, and at least three years besides that--a

total of not less than five years in all, including the final fifth

year in the state--what must he do, and what may be done to him,

when he comes up at last with his request for admission to Active

Membership?

If he arrived in this country since June 29, 1906, he must produce a

Certificate of Arrival. In theory, at least, all arriving aliens are

registered at the port of entry by the Immigration Service of the

Department of Labor. Under existing law they cannot get in at all if

they are of certain excluded races and classes; if they are under

contract to get a particular job; if they are insane or afflicted

with certain diseases; if they are recognizable as anarchists,

polygamists (or believers in either anarchy or polygamy), criminals,

or, in the opinion of the immigration authorities, likely to become a

public charge--a burden upon the community. They must, with certain

exceptions for age and family relationship, be able to read and write

in some language.

Aliens may properly enter the United States only through some

officially designated port of entry, designated by the Commissioner

of Immigration, if an alien enters elsewhere along our enormous

border line he is deemed to be “unlawfully present,” is subject to

deportation, and when he tries to become a citizen he must give a

very good excuse for having “climbed up some other way.” A good many

Canadians and Mexicans have found very embarrassing, eventually, the

fact of their ignorance or evasion of this requirement.

The Act of Congress, approved June 29, 1906, went into effect in most

respects on the 27th of September following, but this provision was

to take effect immediately:

That it shall be the duty of the Bureau of Immigration to provide,

for use at the various immigration stations throughout the United

States, books of record, wherein the Commissioner of Immigration

shall cause an entry to be made in the case of each alien arriving

in the United States from and after the passage of this Act of the

name, age, occupation, ... and the date of arrival of said alien,

etc.

Unfortunately for the aliens subsequently embarrassed by the fact,

the books for record of entries were not promptly installed, and in

some instances since they were installed the immigration officials at

the ports of entry have not always been scrupulous in the making of

the required entries.

No certificate is given to the alien at the time of his arrival, even

if he is properly registered; nothing of the sort is required of him

anywhere; he does not have to show it when he makes his declaration

of intention to become a citizen, nor at any other time or for any

other purpose--until after he has been here at least five years and

comes to the point of filing his petition for final naturalization.

Then he must have it--unless he arrived before June 29th, 1906; in

that event it is not required of him.

He is not to go for it to the Immigration Service. He must get it in

the most roundabout fashion. He must address a written application,

through the clerk of the court in which his petition for

naturalization is to be filed, to the Commissioner of Naturalization,

who in turn requests it of the Immigration Service. The Immigration

Service, if it can find the original entry (and sometimes--quite

frequently in fact--it cannot), sends the certificate to the

Commissioner of Naturalization, who sends it to the clerk of the

court, at the same time notifying the alien that now he may proceed

to file his petition.

But what if the arrival entry cannot be found? What if the alien

cannot remember the name of the vessel, or other important facts

relating to his entry, and thus give the necessary clews for the

search? What if it was his misfortune to arrive at a port after the

law took effect and before the registry system was in operation? Both

the Immigration and the Naturalization Service take a good deal of

pains to care for such situations; but frequently without success.

All this involves delay, not only vexatious and discouraging, but

likely to prove fatal in the case of an alien whose declaration

is at the edge of expiration. Not infrequently an application for

certificate of arrival is bandied back and forth between the two

Bureaus for months.

There was a case in 1919 in which the alien described himself

as having arrived on a certain date and vessel at New York; the

immigration records showed no such arrival, and, what was worse,

no such vessel entering New York at that time. After long delay it

turned out that the alien did arrive on that date and vessel, but at

_Boston_, whence, upon admission, he came by a domestic coastwise

vessel from Boston to New York. Many other cases are by no means so

simple.

A petition accepted for filing without the requisite certificate

of arrival is regarded as incomplete, and may not be completed

subsequently by attachment of the certificate, but must be marked

“spoiled”; the four dollars paid as fee may be returned to the

petitioner by the clerk, or can be applied to the filing of a new

and sufficient petition. It has been the practice of the Bureau

of Naturalization, after it appears impossible to find record of

the applicant’s admission to the country, to refer him to the

nearest immigration inspector for what is known as a _nunc pro

tunc_ inspection, for the purpose of satisfying the inspector that

the alien should not be deported as “unlawfully present.” If the

inspector is satisfied, he issues what is known as a “provisional

certificate of arrival,” whose acceptance as sufficient for purposes

of naturalization is subject to the discretion of the court. This

would appear a reasonable way out; but in the case of petitioners

living a very long distance from the office of an immigration

inspector, it involves an extra, and perhaps prohibitively expensive,

journey to the distant city for that purpose alone, and this

difficulty has in fact been to some extent relieved by permission to

handle such cases by correspondence and affidavits.

THE VEXATIOUS QUESTION OF NAMES

Another obstruction goes to the question of our treatment of the

foreign-born laborer in industry--especially if he bear what we

choose to regard as a “queer” name, difficult for us to spell or

pronounce. The courts have, properly, no doubt, no patience with

assumed names--particularly in a case where the alien cannot remember

the name under which he entered the country. But it is a very common

practice, in concerns employing a large number of immigrants, for

the minor officials of the company, superintendents and foremen, to

attach a name to a job, and insist upon calling the man who occupies

it, “Mike Murphy,” or what not else, because that was the name of

the first incumbent, and it is easier to pronounce than “Bahaoud,”

“Behrensmayer,” or “Przybylski.” This, and the even more common

practice of calling a man by a number, rather than a name, results

in a vast deal of confusion, in a substantial discouragement of

self-respect, and in the ultimate establishment of the neighborhood

identity of a polysyllabic Greek or Armenian, perhaps, with a fine

old Irish name. This will not do in the naturalization court. The

petitioner must come in under at least the same name that he bore

when he entered the country, and there must be no suspicion as to its

not being his own.

But he does not have to keep that name. It is prescribed as lawful

for the court in its discretion, “at the time and as a part of the

naturalization of any aliens, ... upon the petition of such alien,

to make a decree changing the name of said alien.” The fact of which

the court must be convinced is that the petitioner is not attempting

to conceal his real identity for the purpose of escaping payment

of just debts or punishment for crime. Many aliens do thus change

their names, and there have been cases in which the judge virtually

compelled them to do so.

A naturalization judge said to the writer:

I have heard of a high-handed old judge, somewhere in the

Northwest, who was in the habit of “suggesting” to every alien who

came before him with a complicated mouthful of name that he change

it to “Abraham Lincoln,” “Benjamin Franklin,” “George Washington,”

or “Grover Cleveland.” No doubt you could find many a Pole or Swede

naturalized as “Thomas Jefferson” or “Alexander Hamilton,” whose

father, living in the same town, was known as “Konrad Kowalewski,”

or “Ole Johanssen.”

Each nationality has in this country name-complications of this

character peculiarly its own. The Swedes, for an example, have

a habit of taking for their own surname the Christian name of a

favorite aunt, uncle, or other relative, upon reaching the age

of twenty-one years. Sven Svensen--which means “Sven, the son of

Sven”--may undertake to compliment his uncle Olaf by calling himself

Sven Olafsen. Suppose he came to this country under the name of

Sven Svensen, before he was eighteen; but for several years before

filing his declaration came to be known to everybody--including

himself--as Sven Olafsen, and regarded his old name as a “childish

thing” of no consequence to anybody. He applies as Sven Olafsen

for his certificate of arrival, the immigration and naturalization

bureaus have great difficulty in finding it, and when it does come

along it is in the name of Sven Svensen. Often names are adopted

in affectionate memory of the town from which the alien comes.

Many Italians, for convenience, drop off a couple of syllables of

awkwardly long names. Among the Greeks a typical case would be that

of one, “Harris,” whose old-country name was Harralabopoulos.

Another kind of complication appears in the case of an alien whose

true name was Isaac Brody; but he came on a steamship ticket issued

to, and in the name of, his uncle, Isaac Boovris, and was recorded

under that name by the immigration authorities. When he filed his

declaration of intention he was advised to file under the name

Boovris, to facilitate his certificate of arrival when that should

be required. When he filed his final petition, after living and

doing business for several years in this country under his true name

of Brody, he asked to be naturalized under that name. The court

refused, requiring him to file a new declaration as Isaac Brody and

wait two years longer, calling attention to the penal statute which

makes it an offense to apply for naturalization under an assumed

or fictitious name; remarking that the court might have changed

the name or amended the petition “if the error in the original

declaration had been clerical, or had been innocent.”[77]

A Pennsylvania court said in the case of one Wicenty Pilipos, who

after arrival informally changed his name to William Phillips:

We may concede that any person may change his name, and be

naturalized under his new name; yet, if he does so, he must

petition the court for that purpose, so that the record will show

the whole transaction, and identify him as the person who has

discarded his original name, under which he landed in this country.

This is especially necessary to prevent any other person from

perpetrating a fraud, by being naturalized under the discarded

name.[78]

THE PETITION FOR NATURALIZATION

There are other technicalities with which the alien occasionally

collides--such, for example, as the question of jurisdiction where

there is a difference of definition in the term “judicial district,”

or where boundaries may conflict between states, counties, or

other distinct municipalities, with reference to the alien’s place

of residence; or where the court to which he could naturally and

conveniently repair by the shortest line of travel is in another

jurisdiction, and he and his witnesses must journey perhaps even

hundreds of miles to the court to which the letter of the law compels

him to go. Such cases are numerous, but comparatively uncommon. Let

us assume that he has reached the right court, has successfully

unearthed, through the clerk, the Naturalization Bureau and the

Immigration Service, his proper certificate of arrival, and has a

valid declaration of intention. What next?

In large cities or other places reasonably convenient in respect of

distance, the clerk is likely, as the Commissioner of Naturalization

says in his report already quoted, to send the alien to the office

of the Naturalization Service; there is filled out the “Facts Form,”

as it is called, on which the final petition for naturalization

is to be based. The petitioner is closely interrogated as to his

general eligibility, and the principal business is under way. If the

naturalization office is far distant, the petition is filled out by

or in the presence of the clerk.

As required by the law quoted at the beginning of this chapter,

the petition must set forth the full name, residence, occupation;

date and place of birth; port of emigration; name of vessel, if

any; port of arrival; date and court of declaration of intention;

whether married, single, or widowed; wife’s name, nativity, and

present residence; number, names, birthplaces, and residences of

minor children; assurances that the applicant is not a practicing

or believing anarchist or polygamist; intention to renounce former

national allegiance and make permanent residence in the United

States; attachment to the principles of the Constitution; ability to

speak the English language; dates upon which began residence in the

United States and in this state or territory; assertion that this

is his first petition for citizenship, or, if a former petition was

denied, the reasons for denial and the fact that these reasons have

since been cured or removed.

In addition there must be the affidavit of two witnesses (each of

whom must swear that he is himself a citizen of the United States),

who must declare on his oath that he knows the petitioner to have

been a resident of the United States at least since a certain

specified date five years ago, and of the particular state at

least since a certain specified date not less than a year ago; and

that he personally knows the petitioner to be a person of good

moral character, attached to the principles of the Constitution,

well disposed toward the good order and happiness of the same, and

generally qualified in every way to be admitted as a citizen of the

United States.

To the petition _at the time of filing_ (that is rigidly required by

the law and the decisions of many courts) must be physically attached

the declaration of intention made at least two years before, and the

certificate of arrival.

For filing the declaration of intention the alien will have paid to

the clerk a fee of one dollar; upon filing his final petition he has

to pay another fee of four dollars. There are strict penal provisions

in the law for the punishment of clerks who charge or collect any

more. Under the law, one-half of each fee is retained by the clerk,

ostensibly for the purpose of reimbursing him for such additional

clerical assistance as the naturalization business may necessitate,

but not always used for that purpose. This subject is discussed

elsewhere.

The petitioner, with certain exceptions noted below, must sign his

petition in his own handwriting. It is, however, usually permitted

him to sign it by “his mark,” properly witnessed, and even this was

not required of those who filed their declarations of intention

before the passage of the Act; but lapse of time has made that

no longer a practical exception. It has usually been held that a

signature, even in another language, such as Arabic, is sufficient.

There has often been controversy as to whether the extraordinary

arrangement of marks constructed by the petitioner is in fact a

signature, the author insisting that he has achieved one when it is

utterly illegible to both judge and naturalization examiner. In

this, as in a host of other details, the fate of the petitioner hangs

upon the intelligence and humanity of the judge, who has to choose

between a strict insistence upon the technicality and a more generous

adjudication--in a case, for example, in which a poor old deaf woman

homesteader might lose all she has in the world, simply because he

cannot see an intelligible “signature” in the conglomeration of

hieroglyphics which she intends to represent her name.

The law requires the petitioner to state the name, nativity, and

residence of his wife, if any, and each of his minor children. The

wife, if she herself can lawfully be naturalized, becomes _ipso

facto_ a citizen of this country by virtue of the naturalization

of her husband. It is the practice of many naturalizing courts to

decline to admit to citizenship men whose wives are still in the old

country, seeing danger in conferring the status upon women who may

never come to the United States, or who, coming, may turn out to be

undesirable.

The petition must disavow belief in the so-called principles of

anarchism; under the law no one can be naturalized who himself

believes in or teaches or belongs to any organization or groups

believing in or teaching “the duty, necessity, or propriety” of

abolishing organized government, or “the lawful assaulting or killing

of any officers, either of individuals or officers generally, of

the government of the United States, or of any other organized

government, because of his or their official character.” Some judges

of naturalizing courts recognize little distinction between “anarchy”

and “Socialism.” The United States Circuit Court of Appeals, however,

was more discriminating, reversing the naturalizing court in the

somewhat famous case of Leonard Olsen at Seattle, who was rejected,

ostensibly, on the ground that he was not “attached to the principles

of the Constitution,” but really because he avowed himself a

Socialist. There had been a somewhat similar case in Texas, in 1891,

but the Olsen decision settled the question of the lawfulness of

Socialist views as affecting naturalization.[79]

Both the declaration of intention and the petition for naturalization

are made out in duplicate; the original becomes a part of the record

of the court in the clerk’s office; the duplicate is sent to the

Naturalization Bureau at Washington.

NINETY DAYS’ INTERVAL BEFORE HEARING

Notice of each petition must be posted in a public and conspicuous

place in the office of the clerk for at least ninety days before

the hearing is had in open court. The Naturalization Bureau will

have been informed directly by the clerk; the purpose of the posting

is, of course, to give the public notice, so that anyone who

desires to do so may appear with objections. In actual effect, the

posting is without much value, because the public does not visit

the clerk’s office except upon business of its own, and there is no

other publication of the petition, save in such rare cases as local

newspapers make it a matter of news. It may be injurious to the

petitioner, because a good many hearings have been postponed simply

because the clerk forgot to post the notice at all!

THE FINAL HEARING IN COURT

Petitions may be heard only upon stated days, fixed by rule of the

court, so that the government and the public may attend the open

hearings which are required by the law. This works smoothly and well

enough in the great cities, where most naturalizations take place;

but there are districts, in sparsely settled regions, where there is

but one term of the court in a year; which, in practice, means that

the judge cannot be sure of being at any given point on any days

determinable in advance, except the opening day. In such cases a

great many courts will have but one hearing period in a year--usually

on the first, and perhaps the second, day of the term. Two hardships

may arise from such a situation; the alien and his witnesses may

be uncertain as to the length of time they must wait after a long

journey to the county seat, and if the clerk is careless and fails

to notify the petitioners that their cases are to be heard (a thing

which happens all too often) the judge and examiner are on hand, but

no one appears to be naturalized, and another year is lost before the

cases can be disposed of. That this can be a matter of very serious

import to the alien may be illustrated by the fact that a group of

Poles were classed as “nonresident aliens,” and subjected to the very

heavy income tax collected of such, simply because the clerk of the

court in which their petitions for naturalization were pending failed

to notify them of the hearing day.

MUST “SPEAK” THE ENGLISH LANGUAGE

The applicant must be able to “speak the English language”--this is

required by the law. It is enforced with a great variety of degrees

of strictness. Many an alien can understand what is said to him in

English long before he has gained facility in speech. Also, in the

majority of cases, especially where he is confronted by a stern and

perhaps hostile judge, or one disposed to treat immigrants with

contempt or ridicule, and a fiercely zealous naturalization examiner

bent upon having the petition denied if possible, he is promptly

tongue-tied by stage fright. It is common for the petitioner to

tell the court, through his witnesses or the interpreter, that he

knows what a certain question means and the answer to it, but cannot

express it in English. Many of the questions call for a simple “Yes”

or “No,” but a frightened or unintelligent applicant, who has learned

certain things by rote, may glibly answer “Yes” to the questions

which ought to be answered by “No,” and vice versa. There was a

fellow in Leadville, Colorado, who for a long time occupied the

status of witness for nearly all the Austrians who applied in that

place for naturalization, and who to a large degree superintended

their training for the examinations. After a while it was discovered

that he had a system by which he dictated the answers to the

questions, kicking the petitioner in the ankle when the answer should

be “Yes,” and nudging him with his elbow when it should be “No.”

Both judges and examiners vary greatly in their interpretation

of what constitutes ability to “speak English.” Some give the

petitioner the benefit of doubt and make large allowance for

natural embarrassment and fright. Others, as one judge frankly

says, “construe everything against the applicant,” on the ground

that citizenship is a precious privilege which should be accorded

to as few as possible, and only to those about whom there can be no

question. The court may accept a grunt, a shrug, a gesture, a shake

of the head, as indicating a sufficient understanding of the question.

Generally the judge is humane. There was a case in Arizona in which

a mild-looking Mexican insisted that he was both an anarchist and a

polygamist--plainly showing that he imagined the terms, about which

he was sharply asked, to represent qualities which he must possess.

The judge knew the man; that he was of good conduct, conventional

ideas, and married to one wife.

“How many women are you married to?” he asked.

“Oh, only one!” cried the man, adding for good measure, “maybe one is

too many!”

“Would you kill a man you didn’t like? Would you blow up a house, or

shoot a sheriff?”

“No, no, no! Me never kill nobody! Me never blow up nobody’s house!

Me never hurt nobody!”

Between the morning and afternoon sessions of the court the Mexican

was quietly interrogated and readjusted, and the court admitted him.

In thousands of cases, not so picturesque, the applicant called upon

for relatively elaborate views about theories of government, and even

more abstruse matters, is either bewildered or on general principles

deems it safer to remain silent; in which case the impression of

the court, and his action upon it, depend very much on the personal

equation, the humanity, and common sense of the judge.

A deaf-mute is exempt from the requirement of ability to “speak”

English; so is an alien who has made entry for a homestead on the

public lands. The latter can make his entry immediately upon filing

his declaration of intention; but he cannot complete his title

until he is fully naturalized. A few courts virtually ignore this

exemption, and require the homesteader to speak English and pass the

other educational tests. Generally the judges are lenient with such

people.

The law does not require the applicant to be able to _read_ English;

but there is an increasing tendency in the courts to require it

regardless of the law. After all, the judge is the final arbiter; he

must be satisfied that the applicant is “in all respects qualified

to be a citizen,” and, if he chooses to regard a person who cannot

make sense out of a current newspaper as not thus qualified, he can

deny the application on general principles. The whole matter of

educational qualifications varies widely in different jurisdictions,

largely because of the absence of a definite standard of knowledge,

intelligence, and general ability established either by Act of

Congress or by the Naturalization Service.

ATTACHED TO THE CONSTITUTION

The applicant must be “attached to the principles of the

Constitution,” and “well disposed toward the good order and happiness

of the United States.” Can a man be “attached to the principles of

the Constitution” without having read it? If not, then the vast

majority of the native-born citizens of the United States are not

so “attached,” for it is a matter of the most notorious fact that

very few Americans, not professional lawyers, ever have read it or

could pass the most rudimentary examination upon its substance.

There is, however, a widely prevalent tendency on the part of the

courts to require petitioners not only to swear that they have read

the document, but to pass a pretty stiff examination, either before

the naturalization examiner who may certify the fact, or even in

open court. And it is upon the phrase “attached to the principles

of the Constitution” that the Naturalization Bureau has erected its

whole elaborate and ambitious campaign of education for citizenship.

But its interpretation is so vague and unsettled, so subject to

the whims, theories, prejudices, and intellectual limitations of

the individuals upon whom its enforcement devolves, that it seems

highly desirable for Congress to establish by law definite and simple

requirements embodying the minimum qualification to be demanded of

applicants for citizenship to demonstrate both their understanding of

our form of government and their “attachment to the principles of the

Constitution.”

One of the classic anecdotes of the Naturalization Service has

to do with this matter of attachment to and understanding of the

Constitution. In the court of a judge who insisted upon every

petitioner having at least read it, an Irish petitioner at the

morning session of court was ordered to read the Constitution, or

have it read to him, and to come back in the afternoon for further

hearing.

“Well, did you read the Constitution to him?” demanded the judge of

the citizen who was acting as mentor of the petitioner.

“I did, your Honor; I read it to him--all of it.”

“Is he ready to swear that he is attached to the principles of it?”

“He is, your Honor; when I got through readin’ it to him he said he

thought it was a blame fine Constitution.”

What more could be asked--even of a native?

An Italian petitioner in one of the Southern courts exhibited a

good knowledge of current political history, and at the same time a

realization of his own limitations.

“Who is the President of the United States?” asked the judge.

“Mist’ Wilson.”

“Who is the Vice-President?”

“Mist’ Marsh’.”

“If the President should die, who would take his place?”

“Mist’ Marsh’--he’s ready for that job.”

“Very good, Tony, and quite correct. Now, let me ask you something

else. Could you be President of the United States?”

“Oh, no! no! Judge, please!” cried the dismayed petitioner, “you

have to excuse me! I’m too busy!”

IN THE MATTER OF “CONTINUOUS RESIDENCE”

The fact of continuous residence within the United States for five

years, and within the particular state for one year next preceding

the filing of the petition, must be established to the satisfaction

of the court. To the layman this would seem simple enough; but there

is hardly anything connected with the process of naturalization

about which there has been so much variety of interpretation. What

constitutes “continuous residence”? It is said that a court in Utah

disqualified an applicant because once during the five years he

stepped across the Canadian border far enough and long enough to buy

a sandwich! Shall a man lose his “residence” because of a walk across

the International Bridge at Niagara Falls? Suppose he is a carpenter,

or a farm hand, and goes over into Canada, or Mexico, for the summer

months, or long enough to build a house? Suppose there is an estate

to be settled up in the old country, or that the alien’s aged mother

is dying in Copenhagen or Buda-Pesth, and yearns to see her son once

before she goes. Shall that invalidate his residence? There are many

judges who will not tolerate any absence whatever from the country,

on any pretext.

In the great bulk of practice, however, it has simmered down to

the question of “intention.” Reasonably carried out, as in other

matters, it meets the average case. If the petitioner always, and

everywhere, during the five years maintained his intention in good

faith to become a citizen, and especially if he preserved a specific

residence, both the courts and the Naturalization Service on the

whole have waived the literal words of the requirement. But within

that general situation there are degrees. There are judges who will

permit an absence as long as two years, if “intention” is clear; some

set a limit of one year, others of six months. Generally speaking,

any absence in excess of six months is viewed with suspicion.

There are two reasons, as the law stands, for insistence upon

residence virtually continuous. In the first place there is the

wording and evident intention of the law, which must be obeyed in

spirit, anyway. In the second place, in case of any protracted

absence, the witnesses hardly can know what he has been about, and

certainly cannot swear, as they must under the statute, to the fact

of continuous residence. If the petitioner has been out of the ken of

his witnesses in some other part of the United States, he can prove

good conduct and American residence by depositions; but the law does

not contemplate depositions regarding his conduct on any foreign

soil, however legitimate his reason for being there. And if he has

been in other parts of _the same state_, he cannot prove anything

about it, by witnesses, depositions, or otherwise.

THE ABSURDITY OF THE “INCOMPETENT WITNESS”

This brings us to one of the most extraordinary provisions of the

law--that regarding the proof of eligibility by witnesses and

depositions--a provision responsible for the exclusion of thousands

of perfectly fit persons, and for a vast deal of wholly unnecessary

hardship and injustice.

During the eleven years 1908-1918 inclusive, according to the

statistics given in the annual reports of the Commissioner of

Naturalization, of 107,484 petitions for naturalization denied,

more than one in four--28,262, or 26.3 per cent--were denied on the

ground of “incompetent witnesses.” The percentage in many states

is very much larger than that: Illinois, 38.3; New Jersey, 37.2;

Michigan, 36.5; Iowa, 36.4; Nebraska, 36.0; Kansas, 35.9; Colorado,

32.8; Arkansas, 32.4; Oregon, 32.2; North Carolina, 31.9; Indiana,

31.1; Wisconsin, 31.0; Missouri, 29.5; New Mexico, 29.3; Kentucky,

28.8; Montana, 28.4; Utah, 27.0. The low states in this respect

are few--Rhode Island, 5.9; New Hampshire, 8.0; Connecticut, 9.0;

Vermont, 9.1; Massachusetts, 9.2; South Carolina, 11.4; Florida, 11.5.

Now, what does this mean in human terms? To begin with, a petitioner

for naturalization may not prove his eligibility, as he would prove

any other set of facts in court, by such an exhibit of evidence

of various kinds as would satisfy a reasonable judge or jury. He

cannot bring a group of neighbors who have known him; his employer,

his priest or pastor; the village school-teacher who teaches his

children; a sheaf of affidavits from people who have known him in

various places where he has lived in the state. His exhibit of

evidence is rigidly and most absurdly restricted, and the restriction

is of no benefit to anybody--except, perhaps, the Naturalization

Service in somewhat simplifying their work of investigation.

His petition must be accompanied by the affidavits of precisely

_two_ witnesses, who must accompany him personally when he files his

petition, and must accompany him again, ninety days or more later,

when his case comes before the court for hearing. _Two, only two, and

the same two._ Only in case one of them dies, or moves out of the

jurisdiction of the court, is he allowed to substitute. Each witness

must be a native or naturalized citizen of the United States, and

must swear to that fact. And each must swear that he has known the

petitioner during the whole period of five years of residence within

the state, or of one year in the state if he lived previously in

other states, and satisfy the court that he has seen the petitioner

frequently enough to know that his residence has been continuous and

his conduct such as to warrant his admission to citizenship. Some

judges require the witnesses to have seen the petitioner virtually

every day, “constantly, as a neighbor”; “at least once a week,” for

five years. The examination of the witnesses is frequently more

severe, if possible, than that of the petitioner himself; for the

law requires them to be “credible.” If a witness can be shown by

the naturalization examiner to be of dubious moral character, the

court probably will deny the petition verified by him, and leave the

petitioner with only one witness. He must have two, and he cannot

substitute a better one!

In a state which has allowed aliens to vote upon their declaration

of intention, innumerable foreign-born persons have in good faith

believed themselves to be citizens. If such a person appears as a

witness for a petitioner, the petition is denied--properly enough,

except that the petitioner might easily produce a substitute who

could not be objected to; but no, he must have not only exactly two,

but _the same_ two, throughout the proceeding. Or, if one or both

of these particular witnesses turn out to be honestly mistaken in

thinking they have known the petitioner for the whole five years; if,

for example, it turns out that they could not have known him more

than four years and nine months--the petition is denied; “incompetent

witnesses.” In the fiscal year ending June 30, 1918, more than 2,300

petitions were denied for this cause, and it is safe to say that,

in a very large majority of the cases, the witnesses were acting in

perfect good faith.

The practice cuts very close. _In re_ Welch (159 Fed., 1014), decided

in 1908, reports a case in which it was shown that a witness had not

known the petitioner for five years at the time of the filing of the

petition, but had known him for five years by the time the hearing

was had. In that case the court permitted amendment of the date of

the petition, but required a fresh posting.

Congress took note of the difficulty an alien might labor under if

he were obliged to move about from state to state during the five

years’ period, and provided that four years of the time, in the event

of inability to bring witnesses who could swear to knowledge of the

whole period, the applicant might prove residence, etc., _in other

states_ by deposition. This helps a good deal, as far as it goes;

but in any event the last year, the year of residence required to be

within the state where the petition is filed, must be covered by “two

witnesses”--_two, only two, and the same two_. Suppose the case (and

there have been many such) of a Methodist minister, an Englishman

if you please, who, during the five years preceding his petition,

has been assigned to two or more pastorates within the same state at

points more or less distant from each other. He could produce almost

any desired array of witnesses to cover his residence in each of the

several places, and affidavits galore; but he must not. There is

virtually no chance at all of his being able to find two, only two,

and the same two, who can testify to personal, neighborly knowledge

of his residence in all places. What, then, of an average immigrant

who has been obliged to shift about in search of employment, resident

all through the year in the state, but never staying long enough in

one place to establish intimate relations with possible witnesses

under such restrictions?

JUDGES DENOUNCE THE ABSURDITY

The judges are all but unanimous in their denunciation of this

system. The comment of a United States district judge in the Middle

West represents the sentiments of most:

I do not think it tends to raise the standard of citizenship or

to do anyone any good to have the requirements such that, if a

petitioner has lived in the state for the full five-year period,

he must prove that entire residence and his good character and

reputation during that entire period by the two petitioning

witnesses. The two petitioning witnesses should have known him

for at least a year, and be able to make a showing for at least

the last year of the period. I know of nothing so sacred about a

state line that this great difference should be made between the

petitioner who moves here from another state and the petitioner who

moves here from a distant part of the same state.

A Michigan judge gives a striking example of the injustice of the

discrimination:

The greatest copper mines in the world are in the Upper Peninsula

of Michigan. The greatest automobile factories in the world are

in the city of Detroit in the same state. These sturdy miners of

Houghton and Keweenaw counties in the Upper Peninsula hear of the

automobile industry in the city of Detroit, and after three or four

years’ residence up there, move to Detroit and take up residence

there. Under the present law, they must find two witnesses who

have known them for the entire five years. You will recognize how

difficult it will be for them to find two witnesses who knew them

in the Upper Peninsula, moved to Detroit when they did, and have

known them ever since. The copper mines of the Upper Peninsula are

five or six hundred miles from Detroit. Can anyone suggest any good

reasons why these petitioners in Detroit should not be permitted

to prove their Detroit residence by two witnesses who sign their

petitions, and their Upper Peninsula residence by depositions or

other witnesses? Why punish so unnecessarily the man who continues

to reside for the full five years in the same state, while we

justly permit another man, who moves here from another state,

perhaps a distance of fifty or a hundred miles, to make his proof

as to that state by deposition?

Mind you, I would make them prove their residence in the particular

city or county ... for the full period of their residence there, by

the two witnesses who signed the petition; and, of course, I would

require them to have resided in such municipality for at least a

year.

Says one judge:

In the far West, where the distances are so great and the expense

of travel such a hardship, the matter might readily be handled

on a mileage basis, so that the petitioner would prove a year’s

residence by the witnesses who attest his petition, and a previous

residence within the same state more than, say fifty miles, from

the place of holding court, by depositions.

Of 334 judges of naturalizing courts in all parts of the country

who specifically addressed themselves to this question in reply to

a questionnaire of the Americanization Study in the summer of 1919,

only 34 were content with the present system; 289 specifically

favored amendment of the law for the reasons, and to the effect,

substantially as suggested above.

A clerk of the court in Arizona who handles the naturalization

business, and in his letter displays a keen and intelligent interest

in the human aspects of the question, says:

I have had numerous petitioners who, for ordinary purposes,

could prove every day of their residence in this state; but for

naturalization purposes were unable to prove their residence, even

though the entire five years may have been--and in some instances

has been--in this one county! I consider it inequitable for the

reason that the man who travels from mining camp to mining camp

may reside four or more years in any number of states, and at

any number of camps in each state; but, if he then removes to

another state and resides in that state one year, he may obtain

citizenship. Yet the rancher who resides five years in one state,

or even in one county, but during the five years resides in two

different localities of the state, or even on two different ranches

in one county, may be (and under the present law frequently is)

deprived of citizenship for the reason that two witnesses, only

two, and each of these two, must prove the continuous five years’

residence.

I some time ago became convinced that this provision of the law

was not equitable, and in January, 1919, wrote to our Congressman

in the hope of convincing him and getting a bill introduced to

remedy it. He thought it too late in the session to attempt it, and

that it would be useless to attempt it without the approval of the

Department of Labor, which approval was withheld.

Nevertheless, it is to be presumed that the Bureau of Naturalization

did approve (since the proposal was embodied in the same bill

containing one of its attempts to secure a notable extension of its

powers)[80] a measure of concession in the matter of witnesses.[81]

A proposed amendment to Section 10 of the Naturalization Law would

provide:

That in case the petitioner has resided in two or more parts of

the county in which he resides at the time he files his petition,

and for this cause is unable to procure two witnesses, who are

citizens of the United States, who are qualified and competent to

establish the entire period of his residence in such county, he may

establish his residence at each of the places in such county by the

affidavits and testimony of at least two witnesses, citizens of the

United States, to each place of residence, both in his petition and

at the hearing.

The same bill would have mitigated and, so far as it went, humanized

the restriction upon substitution of witnesses by adding to Section

4 a subdivision providing that

Where either or both of the original subscribing witnesses to

a petition for naturalization, or those giving evidence by

deposition in support thereof, shall be found to be incompetent

or not qualified to establish the proof of residence, good moral

character, or other evidence required by law, the petitioner may

substitute other qualified and competent witnesses at, or prior to,

the final hearing. The hearing of the petition may be continued

for this purpose and the names of the substituted witnesses may be

ordered publicly posted, in the discretion of the court, if such

posting shall be deemed necessary. Any petition for naturalization

may be amended to correct manifest errors appearing therein and

made in good faith.

DEPOSITIONS OF WITNESSES

Mr. Raymond F. Crist, then Deputy Commissioner of Naturalization,

in testimony before the House Committee on Immigration and

Naturalization, prior to the enactment of the Act of May 9, 1918,

stated that the Naturalization Service was habitually represented at

the taking of the depositions by which a petitioner is permitted to

prove his residence in states other than that in which the petition

is filed. This must have been a slip of the tongue, for it is very

far from being in accordance with the facts. Such a course would

be a physical impossibility, especially in the present and past

short-handed condition of the field service. As a rule the notaries

public who attest these depositions are designated by the several

chief examiners; but many of them are in small places, to which

examiners never go. In point of fact, in most cases, the depositions

are not viséd in any way whatever, so far as the naturalization

machinery is concerned, or examined at all until the judge reaches

the particular case. They go direct from the notary to the court in

which the petition is to be heard, in a sealed envelope which is

not expected to be opened until the day of the hearing--unless the

court has, by specific order, authorized the naturalization officer

to open and examine them. A very considerable number of them--one

person familiar with the practice estimated the percentage as high as

75 per cent--are defective in some particular; the same authority

thought at least 40 per cent of them would be so defective as to

render them, under strict construction, inadmissible as evidence.

For example, they will fail to assert that the deposing person has

known the petitioner during the required period of time; or will not

say, categorically, that the affiant is himself a citizen of the

United States. As a rule, it is not until the affidavits are examined

in open court by the judge or examiner that their insufficiency

is disclosed, for the first time, to the petitioner. He may not

be admitted until the papers have gone back for correction, or a

new set prepared. That sometimes means a delay of six months, a

year, or even longer--a very serious matter to a petitioner upon

whose naturalization may depend his title to a homestead. There is

nothing in the law prescribing the method of handling this matter;

it is subject to regulation by the Bureau of Naturalization in its

discretion; and inasmuch as the Naturalization Service declares

itself, and ought indeed to be, the friend of the petitioner,

guarding him against errors which may invalidate his whole effort and

lead to the cancellation of his certificate even after he gets it,

it ought to devise some procedure for examining every deposition.

No petitioner should be allowed to come into court until his papers

have been scrutinized, at least for technical defects. In certain

districts of the Naturalization Service this has indeed been the

practice in an informal way and to a limited extent. It would seem

that it ought to be invariable. The Service has done excellent work

in shutting out all manner of runners, professional witnesses, and

other kinds of pseudo-assistants to the alien; this has left him in

the matter of depositions, as a general rule, without well-informed,

disinterested, or intelligent guidance, with the result that he has

no adequate warning against defects, either important or trivial,

which may vitiate his application. When he comes into court, all

of his papers should be perfect, and all the facts cleared of

technicalities, so that the judge may pass exclusively upon the

merits of the case.

An applicant for naturalization must state in his petition whether or

not he ever has filed a previous petition, and if so, what became of

it. There have been instances in which a former petition was granted,

but for some reason the record of it cannot now be found. In such a

case the petitioner would have the greatest difficulty in getting

proofs of his citizenship. His new petition may be denied on the

ground that he is “already a citizen,” but it leaves the record in an

unsatisfactory condition; although his copy of the order of denial,

stating that he is a citizen, serves fairly well for most purposes to

certify his citizenship.

“GOOD MORAL CHARACTER”

It is customary for naturalizing courts, in denying petitions, to add

some phrase governing a later renewal; such as “without prejudice to

renewal”; or “with prejudice to renewal before the expiration of five

years from the date of this order of denial.” In absence of such a

phrase the court passing upon the second petition--especially if the

former denial was on the ground of “immoral character”--requires the

lapse of at least five years and exceedingly good proof of reform.

The law requires that the petitioner must show affirmatively not only

that during the whole period of five years immediately preceding

the date of his petition he has behaved as a person of good moral

character, attached to the principles of the Constitution, etc.,

but that he _is_ at the time of the petition such a person. Courts

have been known to deny petitions for acts committed before the

beginning of the five-year period, on the ground that they involved

ineradicable moral turpitude. Judges have shown much liberality on

this point, however; there was a case of an old homesteader who had

spent several years in the penitentiary; but the judge inquired

far enough into the history of the matter to learn that the man

was convicted as the result of a conspiracy on the part of certain

neighbors who wished to get his homestead.

The latitude of the courts in this respect is very wide, and

interesting slants are to be found in the decisions. There was a

saloonkeeper in Chicago who participated in the then general custom

of keeping liquor saloons open on Sunday in violation of the law,

the policy of the city administration at that time being that of

non-enforcement. There came a time when public sentiment required

enforcement of the Sunday-closing law, and thereupon this man

promptly obeyed the orders of the police to that effect. When his

petition for naturalization came up, it was held that the consent

of the authorities to his disobedience of the law was no excuse; a

person who would accept the benefit of an evasion of the law could

not be of “good moral character.”

Said the court:

If a rule were laid down that it is immoral to knowingly and

willfully violate the law in a community where public sentiment

approves the law, but not immoral in a community where public

sentiment does not approve the law, it would be most disastrous to

the good order and well-being of society.... That public officers

charged with enforcement of the law do not do so cannot change

the effect upon the moral character of a man who willfully and

habitually violates it.[82]

This was a case in which the government succeeded in canceling a

certificate already granted, and it shows, as do many others, what

a severe gantlet the petitioner must run, and how his past is combed

over before he can show that he is altogether qualified. Gerstein was

required to wait before filing a second petition; the court said:

The order and decree of naturalization of the Superior Court [of

Cook County, Illinois] is reversed and the application of appellee

for citizenship denied, without prejudice to his right to file

another application _when time has removed the disqualification_.

THE FINAL CEREMONY--OATH OF ALLEGIANCE

The law requires that the Oath of Allegiance shall be taken in open

court as the final act of the petitioner before being formally

admitted to citizenship; thereupon the decree is entered and

certificate issued; but the Naturalization Service is forbidden by

its regulations to issue the certificate until the judge’s signature

is upon the order. Sometimes the clerk rattles off or mumbles the

oath very indistinctly, and the petitioners, often a large number of

them, hardly understand a word of the solemn ritual. It is becoming

more common for the judge to require everyone in court to stand while

he delivers the text of the oath loudly and clearly. In some courts

where there are many applicants, and all concerned are pressed for

time, the persons to be naturalized are kept in one part of the room

until the docket is cleared, whereupon the oath is administered to

them in groups of nationality; each nationality group standing with

upraised right hands while the clerk or judge reads the words, and

names the particular “prince, potentate, state, or sovereignty,”

allegiance to whom, or to which, is to be abjured. Sometimes this

ceremony is a very hurried, perfunctory, and undignified performance;

sometimes a very solemn and impressive one. During the high-pressure

process of naturalizing great numbers of soldiers in the army

encampments during the war, it was sometimes the custom to have all

nationalities stand at once, the clerk naming all the sovereignties

concerned in one series, with the presumption that each individual

would mentally isolate the one which he was supposed to have in mind.

There were occasions when this helter-skelter method was pursued for

the benefit of as many as 1,200 petitioners together.

CEREMONIES OF INITIATION

There is a growing movement in favor of having public ceremonies

of “initiation,” in which the whole community is represented, to

welcome the new citizens; to impress upon both the newcomers and the

people to whose fellowship they are being welcomed, the importance

and solemnity of the occasion. An increasing number of judges are

carrying out this idea in their naturalization proceedings; adding

to the formalities required by the law a speech either by the judge

himself or by some representative citizen, or both, in which the

momentous significance of the act in which the alien and the court

have joined is emphasized. Some judges make a practice of giving to

each new citizen a small flag, a special certificate, a leaflet or

brochure setting forth the sentiments appropriate to the occasion.

Much more common is it becoming for public-spirited citizens to

organize a meeting of the same import. Here, for example, is the

program of such a meeting, held in the Music Hall at Fall River,

Massachusetts, on May 7, 1919, following a naturalization session of

the local court, designated as “Reception and Welcome to Fall River’s

Newly Naturalized Citizens”:

PROGRAM

HON. HENRY F. NICKERSON, Presiding

Music _Orchestra_

Singing--“America” _Audience_

Address of Welcome _Hon. Henry F. Nickerson_

Response by a naturalized citizen _James B. Kerr_

Selection _Orchestra_

Address _Rev. Everett C. Herrick_

Pledge of Allegiance--_Led by Boy Scouts_:

“I pledge allegiance to my flag and to the

country for which it stands; one nation,

indivisible, with liberty and justice for all.”

Presentation of Certificates of Naturalization

_M. B. Irish, Sec. Fall River Immigrant Committee_

Prayer _Rev. Vincent Marchildon_

Singing--“Star-spangled Banner” _Audience_

Informal Reception

Here is another program--of the “Americanization Meeting in honor of

those who were admitted to citizenship April 19, 21, 22, 1920,” held

in the Union High School at Grand Rapids, Michigan, April 30, 1920,

under the auspices of the Grand Rapids Board of Education and the

Americanization Society:

PROGRAM

HENRY E. CROW, President of the Board of Education, Presiding

JOHN W. BEATTIE, Supervisor of Music, Song Leader

Song--“America” _Audience_

Address _Christian Gallmeyer, Mayor of Grand Rapids_

Folk Games _Pupils Sibley School_

Directed by _Miss Ila Krumheuer_

Address _Fred J. Schlotfeldt,

Chief Naturalization Examiner, Chicago, Ill._

Songs _Audience_

Presentation of Citizenship Certificates

_Judge Willis B. Perkins, Circuit Court_

Pledge of Allegiance to Flag--_Audience, led by Boy Scouts_:

“I pledge allegiance to my flag and to

the country for which it stands; one nation,

indivisible, with liberty and justice for all.”

Address to New Citizens _A. P. Johnson,

Publisher Grand Rapids “News”_

Songs _Audience_

Address _Raymond F. Crist,

Director of Citizenship, Bureau of Naturalization,

Washington, D. C._

“Star-Spangled Banner” _Audience_

Mrs. Henrietta Briggs-Wall of Washington, D. C., has presented

admirably the spirit of this movement in a pamphlet proposing a

general “New Patriot Plan,” to utilize the Fourth of July throughout

the country for the celebration of the “civic birthday,” alike

of the native born who, during the past year, have attained the

voting age of 21 years, and the newly naturalized foreign born.

“In other countries,” says Mrs. Briggs-Wall, “much ado is made

over the crowning of kings and queens who attempt to rule over

others; there is much more occasion for general rejoicing when newly

enfranchised citizens attain their share in the honors and duties

of self-government.” The plan proposes in general a Fourth-of-July

celebration in every community in America to which the newly

enfranchised shall be invited as guests of honor. The author says,

among other things:

The natural birthday is remembered by the family; the “civic

birthday” should be honored by the community.

Inauguration ceremonies should accompany this newly acquired

power. These exercises may consist of addresses to them [the

newly enfranchised], music, a variety of activities for their

entertainment and instruction; all of which, as an object lesson,

will promote the patriotism of all the people.

Prizes may be offered to those who bring the greatest number to

register in the “Record Book of New Patriots”; also to those

who may try, if they choose, to write the best essays on “true

patriotism.” ... The customs and convenience of different

localities will suggest varying methods.

It is appropriate that the birthday of freedom, the civic birthday

of our country, should be chosen to celebrate the civic birthday

of the citizen. It is the best possible holiday for patriotic

purposes; the audience is already furnished, and the minds of the

people are in a receptive mood. It occurs at the time of year when

picnics, excursions, and out-of-door celebrations of all sorts

can be easily arranged in honor, and for the pleasure, of the new

patriots.

Criticism, commendation and reform alike, to be either fair or

judicious, must bear in mind that the naturalization system which

has been built up--and such parts, absurdities, inhumanities, and

bureaucratic excrescences as have grown up--under the Naturalization

Act of 1906 represents when all is said an honest, diligent, and

wholly patriotic effort to make impossible the now almost incredible

scandals of former times; to establish and vigilantly maintain

proper standards of character and intelligence by which to test

those of other nativity who desire to join our fellowship and

participate in our sovereignty; and to fit and educate those who

are admitted for the better appreciation and performance of the

unique privileges and responsibilities of American citizenship. The

remediable evils, some of the more conspicuous of which have been

indicated, seem to be due in part to survival among us of general

race and anti-foreign prejudices, despite our historic professions

and democratic traditions; in part to the mere inertia of custom

and habit characterizing all governmental institutions; in part to

the “personal equation” of those upon whom, in various parts of the

country, falls the duty of administering the law.

The experience of these fifteen years has demonstrated that the law,

as it stands, is on the whole just and effective for its purposes.

Its defects can be remedied; its sound features strengthened and

clarified. It is time to modify it in some respects; to standardize

the tests and conditions enforced under its provisions, to the

end of removing, or anyway diminishing, the opportunity for the

erratic operation of “personal equation” and the theories, whims,

negligences, together with the illegal and extra-legal practices, in

both the executive departments and the courts, of which the aspirant

for citizenship is the hapless victim.

VI

PERSONAL EQUATION IN NATURALIZATION

When we speak of the “personal equation” as an important factor in

the adoption or rejection of an alien applicant for citizenship,

we are likely to be thinking chiefly of the personality of the

petitioner; of his character, intelligence, education, social

training and experience; of his general fitness and capacity for

assimilation of our language, customs, traditions, institutional

relations--what we are pleased to call our “fundamental principles.”

But this is only a part, and not always or necessarily the most

significant and controlling part, of the situation. There are other

“personal equations” to be considered. For while it is true in

one sense that the applicant does pass into the maw of a machine,

constructed “of law rather than of men,” and governed by more or less

precise and automatically operating regulations from whose technic

the individuals on either side of the process may not materially

depart, the fact is that there is hardly any other legal process

in our governmental system in which personality--individual ideas,

prejudices, idiosyncrasies--plays so large a part. In no other

activity of the courts is the individual petitioner so entirely at

the mercy of the court, so completely without recourse in the event

of a decision against him.

Strictly speaking, the proceeding is judicial; an _ex-parte_ case

in an important court, in which a petition is filed with the clerk,

comes in due course before the judge in person; evidence is received

for and against the granting of the privilege requested, and the

judge decides in a formal order and decree, pro or contra; the

petition is granted or denied, as the case may be. For every petition

is decided and disposed of in some final way, even though it may

be continued or postponed once or more. It is doubtful, however,

whether anywhere in our judicial procedure--even in the minor courts

where so often farcically unjust “law” is inflicted upon defenseless

persons--may be found a class of cases departing so far in practice

from the apparent simplicity of the theory; where the petitioner is

subject to so heavy handicaps of technicality; to so great an extent

at the mercy of personal whims and mental limitations, of blunders

and negligences--and “red tape”--of persons over whose activities he

has not the slightest control, with very little right or opportunity

to have beside him anyone to protect him from encroachment upon his

rights.

The Constitution of the United States gave to Congress exclusive

authority “to establish a uniform rule of naturalization.”[83] It

might have been inferred that the intention was to make the process

strictly an affair of Federal administration; but Congress did not so

construe or utilize the authority. It established, by the original

statute and subsequent legislation, uniform standards of requirement

as to racial restriction, preliminary period of residence, literacy,

and moral qualifications; but in effect it gave the jurisdiction and

administration of the law back to the states--not in so many words,

to be sure, but by committing the naturalization function to local as

well as to Federal judges in every state and territory. Nothing could

have been devised more surely to subject the operation of the law to

the peculiarities of local conditions and feeling, and to the warps

and twists of personal notion.

From the beginning, in the first general naturalization law enacted

after the new republic got under way, the function of admitting new

members of the nation has been vested in the courts--a _judicial_

power and activity. So it remains to-day. And with the sole exception

of Canada, the United States is unique in respect of this method

of naturalization. England, France, and virtually all of the other

nations vest the power in some ministerial agency.[84]

A FUNCTION OF LOCAL COURTS

At first glance it might seem fitting and wise to confine the

function (if to the courts at all) to the _Federal_ tribunals, in

the interest of freedom from local political influence, uniformity

of interpretation and practice, and recognition of the fact that

citizenship is chiefly a relationship to the nation as a whole.

Always, indeed, there has been a considerable body of sentiment in

favor of such a change in the practice. Many of the state judges

would favor it; some for reasons of principle, but most because they

would gladly get rid of a body of duty which to many is irksome and

a distasteful interference with their ordinary matters of litigation

by duties which they regard as properly more administrative than

judicial. No Federal judge will hear of any such addition to their

already great burden of work.

The reasons to the contrary are weighty and thus far have been

controlling. In the first place, after all is said, an individual,

however national his citizenship in the large sense, is politically

a unit of the state in which he resides. He does not vote for any

strictly Federal officer; the only civic relationships which

he bears to the nation as such are those of direct taxation and

national military service--and both of those are of comparatively

recent establishment. He does not vote for President of the United

States, but for a group of Presidential electors who will cast the

vote of his state in the Electoral College. When he votes for two

Senators and one Representative in Congress, he votes for them as

representatives of his own state and Congressional district. The

states, as a rule, have been very jealous of every effort to take the

direct control of the selection of their citizens out of the hands of

officials amenable to local sentiment.

There is another and even better reason, in the fact that the United

States courts are relatively few and far between, and the expense

of time and travel which would be imposed upon applicants, living

elsewhere than in large cities, for having to go (as they do now

twice and often more than twice) to the nearest Federal courts would

be prohibitive upon all aliens but the most prosperous or those whom

some one might have a motive, political or other, for subsidizing in

this way. In not a few sparsely settled regions, even as it is now, a

petitioner must travel, and take his two witnesses, a total of many

hundred miles before he can consummate the process of naturalization

and obtain the precious certificate without which he cannot complete

his title to his homestead.

The existing law, modified in its allusions to territories which

since have become states by the various kinds of legislation relative

to their statehood, thus describes the courts which are to have the

power to pass upon applications for citizenship:

United States Circuit and District Courts now existing, or which

may hereafter be established by Congress, in any State; United

States District Courts for the Territories of Arizona, New Mexico,

Oklahoma, Hawaii, and Alaska; the Supreme Court of the District of

Columbia, and the United States Courts for the Indian Territory;

also all courts of record in any State or Territory now existing,

or which may hereafter be created, having a seal, a clerk, and

jurisdiction in actions at law or equity, or law and equity, in

which the amount in controversy is unlimited.

“PERSONAL EQUATION” OF THE JUDGES

According to the report of the Commissioner of Naturalization for

the fiscal year ending June 30, 1919, a total of 2,306 courts of

all these kinds have exercised naturalization jurisdiction during

that year, and a list of judges, compiled by the Americanization

Study from information obtained from the Naturalization Service

and from other sources, shows that about 1,450 individual judges,

Federal, state, and local, preside in these courts. A grand total

of approximately 100,000 cases a year--the figure roughly used in

estimating the naturalization business of recent years--would give

to each judge an average of about 70 cases a year; but since in

the great majority of rural districts this business is exceedingly

small--in some cases not more than two or three in a year--and since

the bulk of it is in the large cities and in particular regions, such

as the mining districts of Pennsylvania, West Virginia, Illinois,

etc., certain courts have a very large number of cases, in some

instances running into thousands.

In the last analysis, the individual judge is, subject to certain

noteworthy restrictions and interferences, the final arbiter in every

case. Upon his “personal equation,” his opinions and prejudices, to a

great extent depends the reception which the petitioner experiences

when he comes into court for the final stage of his initiation as an

American citizen.

Obviously, then, it becomes important to ascertain the general

attitude of the naturalizing judges throughout the country toward

the law as it stands, toward the naturalization process in general,

toward the petitioner for citizenship. In the last analysis the judge

is a human being, moved by human motives, warped by human prejudices,

subject to the same personal, local, and general influences that

condition the emotions and actions of the rest of us toward our

fellow men.

With this in view, the Americanization Study addressed a

questionnaire to each of the approximately 1,400 judges throughout

the country entitled[85] to jurisdiction in naturalization

proceedings in the 2,300 courts over which from time to time they

preside for this purpose. Somewhat less than one-third (423, or about

31 per cent) of the judges thus addressed replied or were accounted

for in some manner more or less complete. Any exact or conclusive

tabulation of the replies would be impracticable because the

questions called for expression of opinions rather than categorical

or statistical answers; a large proportion of the judges left one

or more of the questions unanswered or qualified their answers in

such a way as to preclude the possibility of precise classification.

Nevertheless, the results as a whole are highly significant and

informing--almost as much so in their negative aspects as in the

definite replies evoked.

For example, it is interesting to observe the difference not only in

the ratio of replies received to the number of judges questioned,

but in the character of the replies as regards general strictness

or liberality of attitude, in the various parts of the country. The

first point is to be seen in the following list of naturalization

districts, with the approximate number of judges in each and the

number of them heard from:

TABLE IV

NUMBER OF REPLIES FROM JUDGES IN EACH DISTRICT

_Boston District._--Comprising the states of Maine, New Hampshire,

Vermont, Massachusetts, Connecticut, Rhode Island.

========================================

STATE | JUDGES | REPLIES FROM

---------------+----------+-------------

Maine | 9 | 3

New Hampshire | 6 | 1

Vermont | 7 | 4

Massachusetts | 29 | 3

Connecticut | 18 | 4

Rhode Island | 8 | 2

| -- | --

Total | 77 | 17

========================================

_New York District._--Comprising Northern, Eastern, and Southern

New York, and Hudson County, New Jersey.

========================================

STATE | JUDGES | REPLIES FROM

---------------+----------+-------------

New York | 74 | 19

New Jersey | 3 | 0

| -- | --

Total | 77 | 19

========================================

_Philadelphia District._--Comprising the Eastern and Middle

Districts, Pennsylvania, Delaware, and New Jersey (except Hudson

County).

========================================

STATE | JUDGES | REPLIES FROM

---------------+----------+-------------

Pennsylvania | 46 | 11

Delaware | 4 | 2

New Jersey | 24 | 10

| -- | --

Total | 74 | 23

========================================

_Pittsburgh District._--Comprising Western Pennsylvania, Western

New York, West Virginia, Ohio, Maryland (counties of Allegheny,

Frederick, Garrett, and Washington), Kentucky (counties of

Campbell and Kenton).

========================================

STATE | JUDGES | REPLIES FROM

---------------+----------+-------------

Pennsylvania | 29 | 7

Kentucky | 1 | 0

Maryland | 4 | 0

New York | 22 | 6

Ohio | 81 | 22

West Virginia | 27 | 9

| -- | --

Total | 164 | 44

========================================

_Washington District._--Comprising the District of Columbia,

Alabama, Florida, Georgia, Kentucky (except the counties of

Campbell, Jefferson, and Kenton), Louisiana, Maryland (except

the counties of Allegheny, Frederick, Garrett, and Washington),

Mississippi, North Carolina, Porto Rico, South Carolina,

Tennessee (except Shelby County), Texas, and Virginia.

========================================

STATE | JUDGES | REPLIES FROM

---------------+----------+-------------

District of | |

Columbia | 1 | 0

Alabama | 7 | 2

Florida | 12 | 3

Georgia | 10 | 0

Kentucky | 12 | 2

Louisiana | 18 | 2

Maryland | 14 | 2

Mississippi | 13 | 1

North Carolina | 10 | 1

Porto Rico | 1 | 0

South Carolina | 6 | 0

Tennessee | 9 | 3

Texas | 25 | 8

Virginia | 9 | 1

City of | |

Baltimore | 9 | 1

| -- | --

Total | 157 | 29

========================================

_St. Louis District._--Comprising Arkansas, Oklahoma, Missouri,

Iowa, Nebraska, Kansas, Shelby County, Tennessee, and Southern

Illinois.

========================================

STATE | JUDGES | REPLIES FROM

---------------+----------+-------------

Arkansas | 35 | 9

Illinois | 20 | 6

Iowa | 62 | 27

Kansas | 39 | 14

Nebraska | 34 | 11

Missouri | 43 | 11

Oklahoma | 34 | 11

| -- | --

Total | 267 | 89

========================================

_Chicago District._--Comprising Northern Illinois, Indiana,

Southern Wisconsin, Jefferson County, Kentucky, Southern

Peninsula of Michigan, and Mackinac County, Michigan.

========================================

STATE | JUDGES | REPLIES FROM

---------------+----------+-------------

Illinois | 87 | 20

Indiana | 70 | 20

Michigan | 51 | 18

Wisconsin | 15 | 5

| -- | --

Total | 223 | 63

========================================

_St. Paul District._--Comprising Minnesota, North Dakota, South

Dakota, Northern Wisconsin, Northern Peninsula of Michigan

(except Mackinac County).

========================================

STATE | JUDGES | REPLIES FROM

---------------+----------+-------------

Minnesota | 48 | 20

Michigan | 4 | 3

North Dakota | 13 | 6

South Dakota | 13 | 5

Wisconsin | 11 | 7

| -- | --

Total | 89 | 41

========================================

_Denver District._--Comprising Colorado, New Mexico, Wyoming,

Utah, and the counties of Bannock, Bear Lake, Bingham, Bonneville,

Custer, Franklin, Fremont, Jefferson, Lemhi, Madison, Oneida, and

Power, Idaho.

========================================

STATE | JUDGES | REPLIES FROM

---------------+----------+-------------

Colorado | 17 | 7

New Mexico | 9 | 5

Utah | 9 | 3

Wyoming | 8 | 2

Idaho | 5 | 3

| -- | --

Total | 48 | 20

========================================

_San Francisco District._--Comprising California, Arizona, and

Nevada.

========================================

STATE | JUDGES | REPLIES FROM

---------------+----------+-------------

California | 95 | 34

Arizona | 16 | 8

Nevada | 12 | 2

| --- | --

Total | 123 | 44

========================================

_Seattle District._--Comprising Washington, Oregon, Montana, and

Idaho (except as assigned to Denver).

========================================

STATE | JUDGES | REPLIES FROM

---------------+----------+-------------

Washington | 47 | 15

Oregon | 27 | 11

Montana | 26 | 7

Idaho | 11 | 1

| --- | --

Total | 111 | 34

========================================

RECAPITULATION

-----------------------------------------

Total number of judges addressed 1,410

Replies received from 423

-----------------------------------------

PERCENTAGE OF REPLIES

------------------------------

St. Paul District 46.0

Denver District 41.7

San Francisco District 37.4

St. Louis District 33.3

Philadelphia District 31.0

Seattle District 30.6

Chicago District 28.2

Pittsburgh District 26.8

New York District 24.6

Boston District 22.0

Washington District 18.5

Average 30.9

==============================

It would be perilous to generalize from these figures as to the

interest of judges in various parts of the country in the study of

the problems involved in naturalization. Silence does not necessarily

imply indifference; moreover, the courts in large centers of

population are overburdened with ordinary litigation, and it is not

surprising that there should be procrastination or entire failure in

responding to a more or less elaborate questionnaire. Nevertheless,

there is food for reflection in the fact that the lowest percentages

of exhibited interest are in the East and South--the highest west of

the Mississippi River.

The judges who did reply to the questionnaire represent on the whole

both wide experience and substantial interest in the subject. Of

those who state the number of naturalization cases coming before them

in an average year, more than 100 passed upon 100 cases or more--not

including the very large numbers passed by a few in acceptance of

soldiers under the “military naturalization law”; at least as many

more had from 50 to 100 cases a year (160 between 10 and 100); only

67 reported less than 10. Upward of 400 judges, each answering for

himself, undoubtedly afford a reasonably reliable cross-section of

the opinion of the naturalizing agency of the government.

BIRD’S-EYE VIEW OF THE QUESTIONNAIRE

The questions which were asked, and the general nature of the replies

to each, give a bird’s-eye view of the principal phases of the

problem, and a fair notion of the degree to which the judges may be

regarded as liberal or conservative and alive to the situation. The

questions and the figures given after each speak for themselves:

_Do you regard the present requirements for naturalization as too

strict, or not strict enough?_

Answers: About right now 185

Too strict 26

Not strict enough 97

Noncommittal 20

---

328

_What is your policy as to “continuous residence”--how long, if

at all, do you permit a petitioner to have been absent from this

country during the five years immediately preceding his petition?_

The answers to this question may be roughly classified to show the

general attitude of the judge, as follows:

No absence whatever permitted 72

A fixed time limit (three to six months

very general) 32

“Entirely a question of _intention_” 210

Noncommittal 26

---

340

_How frequently do you require the petitioner’s witnesses actually

to have seen him during the five years’ period?_

Very strict (“daily”; “constantly, as a

neighbor”; “I insist upon a real personal

intimacy,” etc.) 53

Reasonable (“enough to satisfy me as

to the petitioner’s character and

residence”; “a bona-fide acquaintance,”

etc.) 287

---

340

_Do you require applicants for naturalization to prove that they

can read as well as speak the English language? The law does not

require ability to read._

Yes 179

No 155

---

334

_Would you favor amending the law so as to permit the substitution

of a witness where, in evident good faith, one of the original two

appears, in the judgment of the court, to be honestly mistaken in

believing that he has adequately known the petitioner for the whole

five years? (Under the present practice the petition is denied, and

a new one must be filed and a new fee paid.)_

Yes (“The present practice imposes a

great hardship and injustice”) 311

No 36

Noncommittal 6

---

353

_Would you favor amendment of the law so as to mitigate the present

requirement that two, only two, and the same two, witnesses must

swear to personal knowledge of all of the petitioner’s residence

up to five years, within the state in which the petition was

filed, and thus permit him to cover a part of this residence by

depositions, or additional witnesses, when witnesses possessing the

qualifications now required cannot be procured?_

Yes 289

No 34

Noncommittal 11

---

334

_Would you write into the Naturalization Law a specific educational

or intellectual test for admission to citizenship?_

Yes 167

No 157

Noncommittal 25

---

359

_Do you favor a uniform required course of instruction for

applicants for citizenship?_

Yes 208

No 134

Noncommittal 33

---

375

_Would you favor acceptance, as prima-facie evidence of

intellectual fitness, of a suitable certificate from schools or

class, of the successful completion of such a course?_

Yes (“I would”; “I do accept school

certificates now,” etc.) 209

No (“The judge must satisfy himself

by his own inquiry”; “it is character,

not learning, that counts”;

“too many Socialists are teaching

school,” etc.) 110

Noncommittal 31

---

350

_Would you favor the abolition of the present Declaration of

Intention (first papers)? If not, what good purpose do you think it

serves?_

Yes (“It serves no good purpose”) 82

No (“It is an essential of the proceeding”;

“it serves notice to all concerned”;

“it tends to keep the applicant

in mind of his desire to be a

citizen,” etc.) 241

Noncommittal 33

---

356

_What have you observed to be the special difficulties in

the way of desirable foreigners, hindering them from seeking

naturalization?_

Know of none deterring _desirable_ foreigners 107

Ignorance and indifference 104

Deterring attitude of natives 60

Technicalities in law and examinations 42

No opinions 58

---

371

_Would you favor legislation to permit the naturalization of a

married woman in her own name, if personally acceptable, regardless

of the alienage of her husband, or his failure to obtain or refusal

to seek naturalization?_

Yes 204

No 104

Noncommittal 25

---

333

_Would you favor reserving to a native-born American woman, if she

desires it, the American citizenship which under the present law

she sacrifices by marriage to a foreigner?_

Yes 220

No 127

Noncommittal 17

---

364

_Would you favor modification of the law so as to admit to

citizenship any individual personally fit, regardless of race or

color?_

Yes 100

No 225

Noncommittal 34

---

359

_Do you believe that the admission of large numbers of aliens

under the Act of May 9, 1918, solely on the ground of military or

naval service, without the usual requirements of residence, etc.,

operated on the whole to the advantage of the United States?_

Yes 111

No 113

Doubtful 28

No opinion 58

---

310

_Would you favor applying the same standards and tests to all

prospective voters, native and foreign born alike, before endowing

them with the suffrage; with suitable ceremonies of induction into

“active voting membership,” so to speak, in our society?_

Yes 180

No 102

Noncommittal 44

---

326

_Would you favor removal of naturalization from all state courts,

so as to make it exclusively a function of the Federal courts?_

Yes 112

No 208

---

320

_Would you favor placing naturalization in the hands of traveling

naturalization commissioners, appointed by and responsible to the

courts?_

Yes 76

No 202

---

278

_Would you favor making naturalization a purely administrative

function, exercised by the Naturalization Bureau, or other

appropriate organ of the Department of Labor, or other department?_

Yes 48

No 222

---

270

GENERAL TREND OF JUDGES’ OPINIONS

The returns of this questionnaire, from a sufficiently representative

cross-section of the naturalizing agency of the government,

self-selected by the operation of substantial personal interest in

the problems embodied in the situation (as evidenced by taking the

pains to express opinion), make clear the opinion of the judges on

several important points, and may be summarized substantially as

follows:

(1) The judges on the whole believe that the present law requires no

drastic amendment in principle; they believe that the naturalizing

function should remain with the courts; should not be confined to the

Federal courts, and should be exercised in the open courtrooms as it

is at present. And this, notwithstanding the fact that the function

adds materially to the burden of ordinary litigation.

(2) In the matter of attitude toward both petitioners and their

witnesses, the judges are in the main liberal and humane, judging

of absence during the five years’ probationary period chiefly with

regard to the occasion for the absence and the continuing _intention_

to become an American citizen, and the witnesses’ knowledge of the

petitioner by the practical facts in the case.

(3) An overwhelming majority of the judges favor mitigation of the

technicalities now surrounding the proceeding by permitting the

substitution of witnesses and the supplying of evidence to convince

the court, by means of depositions covering portions of the period

of residence within the state in which the petition is filed. It may

be added that very many of the judges would accept testimony of the

same character as that which they would receive in any other sort of

proceeding before the court to establish any fact.

(4) A majority of the judges require of petitioners proof of ability

to _read_ the English language; some require also ability to write

it--although the law requires only ability to _speak_ it. There

is a marked weight of opinion in favor of requiring reading; some

also advocate writing--even among the judges who do not now require

it because the present law does not. The judges are about evenly

divided as to the desirability of a uniform educational test. Most

of those who oppose it emphasize the fact that, in the selection

of citizens, character and general reputation are more important

than book learning; that a bad man is made only the more dangerous

by education. A majority of the judges would favor a required

course of instruction, and would accept as _prima-facie_ evidence

of intellectual fitness a school certificate of the successful

completion of such a course. Increasingly, such certificates are in

fact accepted by courts all over the country.

(5) The judges are emphatically opposed to the abolition of the

declaration of intention, the ratio of expressions in the negative

being approximately three to one. The declaration is regarded by the

judges of the widest experience as having a moral value of great

importance, and as affording indispensable notice to the government

and the public of the alien’s intention to apply for “active

membership.”

(6) With regard to married women, the judges are two to one in favor

of permitting their naturalization as individuals, regardless of

the action of their husbands, and nearly as much so in favor of

reserving to American-born women their citizenship, notwithstanding

their marriage to aliens. As regards the latter point, most of those

expressing themselves in the affirmative insert the proviso that the

woman must continue her domicile in this country.

(7) Opinion is in the negative as regards naturalization of “any

individual personally fit, regardless of race or color.” Most of the

judges interpret the question as applying to Chinese and Japanese. A

Southern judge holds that “since citizenship has been granted to the

African race, there is no reason for withholding it from any other.”

Those who vote in the affirmative do so on the ground that even

membership in the Mongolian racial groups should not exclude persons

who can show personal fitness for citizenship; nevertheless, the vote

in the negative is more than two to one.

(8) The judges are not clear with regard to the suggestion of a

standard test for all prospective voters, native or foreign born, by

which even native Americans at the age of twenty-one years should

pass at least the same examination as an alien applicant before being

armed with the ballot. Nevertheless, nearly two to one of those who

spoke on that point favor the establishment of such a test.

(9) Military naturalization is the subject of grave doubt. The vote

is about evenly divided--a shade toward the negative--but nearly as

many judges are doubtful or noncommittal as are either favorable or

opposed to the measure. It should be said, however, that those most

emphatically satisfied with what was done in this regard are those

who had the most experience with it.

THE CLERKS OF THE COURTS