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.”

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.

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.

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) a measure of concession in the matter of witnesses. 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.

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.

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.” 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.

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 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

The clerks of the courts in many ways are not less important in the experience of the petitioning alien than either the judges or the naturalization examiner. Upon the clerk, more than upon anyone else, in the vast majority of cases, depends scrutiny of the declaration of intention; usually he actually makes out the declaration for the alien; if he is careful and familiar with the routine of form and fact he makes it out, or sees that it is made out, correctly; if he regards the whole business as a nuisance, has a prejudice against immigrants as such or against the particular race represented by this particular alien, or doesn’t like this individual, if he has had a controversy with the Naturalization Service or is, for some other reason, in an unfriendly mood, or if, as is more likely to be the case, he is simply careless or unfamiliar with the technic of the business--having very little of it to do--the interests of the alien may suffer accordingly. The courts do not give the alien the benefit of any allowance for clerical or other errors made or permitted by the clerk if they relate in the slightest degree to any material fact; the alien must guard himself against any such error, or bear the consequences alone. In fact, the courts have repeatedly held, as it is expressed in a brief in the case of Mulcrevy vs. San Francisco, in the United States Supreme Court, that the duties in connection with naturalization performed by clerks of courts “are not appurtenant to the office of clerk of court.... All of their transactions with the Bureau of Naturalization, and these include almost all of their service, are performed without any reference to the court.” In many instances, the clerks are greatly annoyed by having this citizenship work thrust upon them; they take no pleasure in having been “freely designated by Congress to serve the purposes of the Federal government,” or in being thus “instrumentalities or agencies of the Federal government,” as the Mulcrevy brief puts it, and perform their duties in a careless, grudging, and ill-natured spirit.

In most of the rural districts, naturalization business is very light; sometimes there will be only two or three cases a year; there are even courts in which a year or two might pass without any at all. In such instances the labor is trivial; but for that very reason the clerk is not alive to the importance of details, and the ratio of mistakes may be the greater for that reason.

In the large cities, where the naturalization business is heavy, there are usually deputy clerks devoting virtually all of their attention to it; they keep in practice, and avoid errors. But it is to be remembered that because this work is not “appurtenant to the office of clerk of court,” neither the United States nor the state contributes anything whatever to the remuneration of the clerk. The alien pays for that, in a manner well calculated to create an undesirable relationship all the way round. The clerk is put in this regard largely at the mercy of the Naturalization Service, and the result is not a happy one--as might very well be expected.

THE QUESTION OF ADEQUATE CLERICAL FORCE

The report of the New York State Commission of Immigration, transmitted to the Legislature April 5, 1909, after the present system had been in operation about two years, dealt with this matter in connection with its comment upon delays in the naturalization business in the courts, especially of New York City, which is attributed chiefly to insufficiency of clerical force, due, in its finding, to the operation of the following provision of the naturalization law:

That the clerks of courts exercising jurisdiction in naturalization proceedings shall be permitted to retain one-half of the fees in any fiscal year, up to the sum of three thousand dollars, and that all fees received by such clerks in naturalization proceedings in excess of such amount shall be accounted for, and paid over to said [Naturalization] Bureau, as in case of other fees to which the United States may be entitled under the provisions of this Act. The clerks of the various courts exercising jurisdiction in naturalization proceedings shall pay all additional clerical force that may be required in performing the duties imposed by this Act upon the clerks of courts from fees received by such clerks in naturalization proceedings.

And in case the clerk of any court exercising naturalization jurisdiction collects fees in excess of the sum of six thousand dollars in any fiscal year, the Secretary of Labor may allow salaries, for naturalization purposes only, to pay for clerical assistance, to be selected and employed by that clerk, additional to the clerical force, for which clerks of courts are required by this section to pay from fees received by such clerks in naturalization proceedings, if in the opinion of said Secretary the naturalization business of such clerk warrants further additional assistance: Provided, That in no event shall the whole amount allowed the clerk of a court and his assistants exceed the one-half of the gross receipts of the office of said clerk from naturalization fees during such fiscal year.

WHEN THE CLERK POCKETS THE FEES

The clerk is not required to spend for additional clerical force the portion of the fees under three thousand dollars retained by him. In some states he is required to surrender it as part of the income of his office; but generally speaking he can put it in his pocket if he chooses to do so, and allow the naturalization business to become clogged and delayed. Sometimes he does just that. The Naturalization Service has no redress, although it usually is blamed by the uninformed for the ensuing situation. Of course the alien has none, although he is the principal victim of it. The possibilities of the arrangement are well illustrated in one great Middle Western city, where there are two courts, one state and one Federal, performing naturalization functions. The clerk of the state court is very efficient and interested in the work; he spends more than $3,000 on naturalization business, employing a deputy at $1,800 and a stenographer at about $1,000 a year, and in rush periods having extra force. The service to aliens in that court is courteous, accurate, and expeditious. The clerk of the Federal court does otherwise. He retains his $3,000, but employs an assistant at only $1,200 without any stenographer, and the work is badly delayed. A letter of complaint about this court mentions the fact that “I have been advised by ... that the United States District Court will be closed all day to-day.” Day after day, during 1918-19, the office of the naturalization deputy clerk in that court was entirely closed, so far as the aliens were concerned, owing to the insufficiency of the clerical force. Generally, an overworked condition of a clerk’s office leads, naturally, to hurry, discourtesy, and inevitable delays, during which applicants and their witnesses will lose day after day of working time in waiting for attention.

FORMS OF PETTY GRAFT

This sort of thing leads also to another evil, inevitable in such an atmosphere. Petty officers of the court, policemen and others having the run of the building, will tyrannize over the crowds of aliens awaiting attention, and will pretend to have, or actually will exercise, the power to put one person ahead of another or otherwise effect an unfair discrimination in favor of those who will pay something for the advantage. In one court there was found a definite arrangement with a neighboring saloonkeeper, who collected the bribes for a guard in the Federal building. The Naturalization Service has been assiduous in its discouragement of this sort of thing, and has had a good measure of success upon the minor grafters; but as the law reads at present it can use only moral suasion upon the clerks of courts to induce them to spend the retained share of the fees for the purpose for which the retention obviously was authorized--the bona-fide employment of the extra clerical force needed to handle the naturalization business.

The “moral suasion” business, however, has its limitations. While the chief naturalization examiners, in charge of the districts in the field, usually are on cordial terms with the clerks of their various courts, the relations between the clerks and the office of the bureau at Washington, maintained almost exclusively by correspondence, with that correspondence almost invariably growing out of some complaint or dereliction on the part of the clerk, are not always so happy. The clerk has to send to Washington for all his supplies of blanks and other stationery used in the naturalization business. In one of the largest cities in the country there was a delay of weeks in getting certain supplies from Washington, and the petitioners suffered accordingly. The whole naturalization service is habitually short-handed and correspondingly overworked; but the penalty for the delays falls upon the head of the petitioner for naturalization. When a clerk of a small court, or a large one, has not on hand the blank forms upon which his declaration or petition must be written in order to be valid, the alien, who may have traveled with his witnesses scores of miles to file his paper, must return to his home and wait some more. This is an occurrence by no means infrequent.

Penalties are provided by law against clerks who fail to send punctually to Washington the required periodical reports and duplicates of papers. The Naturalization Bureau has been reluctant to attempt enforcement of these penalties--it is a bit drastic to fine a clerk $25 for a little delay in transmitting papers--and usually has been content to send an examiner to the court to get the material. But the correspondence growing out of such delays, and out of the effort to induce clerks to spend their retained share of the fees for clerical assistance, has added acerbity in many instances to the irksomeness of a task “not appurtenant to the office of clerk of court.”

Small irritations also add friction. For example, the clerk is required to send his reports and papers by registered mail; there is no provision to reimburse him for this; he can put in an expense bill--and maybe get it after a long delay. This is exasperating, whether one’s annual share of fees in a small office amounts to $10 or $3,000. There was a clerk in California who declined to answer letters or have anything further to do with the Bureau after he thought he had been badly treated in some such matter; he induced the judge of his court to relinquish naturalization jurisdiction, and then wrote to the Bureau that it could have the records in his custody if it would send for them. The Bureau has a highly detached, impersonal style of correspondence, admirably adapted to alienate human sentiment and blight human interest.

“PERSONAL EQUATION” IN THE NATURALIZATION SERVICE

The executive arm of the government has the right to appear before courts exercising naturalization jurisdiction, for the purpose, as the law says:

of cross-examining the petitioner and the witnesses produced in support of his petition concerning any matter touching, or in any way affecting, his right of admission to citizenship, and shall have the right to call witnesses, produce evidence, and be heard in opposition to the granting of any petition in naturalization proceedings.

This perfectly breathes the spirit exhibited as a general rule by the representatives of the Naturalization Service. The alien petitioner, having passed muster in respect of the clerk’s office, confronts the representative of the government, presumably familiar with every detail of technicality, in far too many cases bent upon preventing his naturalization if by any possibility it can be done. Judge after judge, in all parts of the country, answering the questionnaire of the Americanization Study, describes the naturalization examiner as a zealous young man, intent upon straining every technical point to its utmost--against the petitioner.

In the original instructions issued by the Commissioner of Naturalization on June 30, 1909, when the field service was taken over by the Department of Commerce and Labor--of which the Naturalization Bureau then became a part--he said to the division chiefs:

There is one point which I desire especially to call to your attention, and through you to the attention of those under your charge and direction, and it is a point upon which I must insist. The service is largely one not alone of an investigating nature, but of an advisory and instructive character as well; it furnishes the courts, the clerks of the courts, and the general public with information--especially that part of the general public directly interested in acquiring citizenship, or indirectly interested, as witnesses to those who are seeking naturalization.

Referring particularly to applicants, he said, also:

They should further be made to understand that the substantial effect of such exactions [requirements of the law] upon your part is to protect them, after they once secure naturalization, from the disappointment, embarrassment, and distress which must ensue in case they secure naturalization without having complied with the law.

These excerpts from the Commissioner’s instructions were quoted by authority in a letter dated August 15, 1919, from one of the district chief examiners to the writer; therefore they may fairly be taken to represent not only the initial policy of the Naturalization Service in beginning its work, but the policy to-day. As a statement of general policy and attitude they leave nothing to be desired. Furthermore, any fair consideration of the naturalization system must take into account generously the background and historic perspective of this business.

A SCRUPULOUSLY HONEST SERVICE

As it already has been made sufficiently clear, prior to the enactment of the law of 1906, naturalization in the United States was not only a chaotic but a scandalous thing. Many persons believe now that it is “easy to get naturalized,” that upon payment of a few dollars, or in consideration of political subserviency, promised or expected, any alien can go, as it were, straight from the vessel that brings him to the naturalization court and thence to the ballot box! It used to be almost like that, but with the enactment of the law of 1906 a revolution set in, and the condition now, generally speaking, is quite otherwise. The pendulum has swung to the other extreme. It is as difficult now to be naturalized as it used to be easy. And it is quite natural that it should be so, in the reaction of public sentiment from the old happy-go-lucky days, with the law’s administration in the hands of a corps of men who, from top to bottom, answer any test of honesty and zeal. In all the wide inquiry upon which this volume is based, there was no hint anywhere of any manner of corrupt practice on the part of anyone in the service. Such faults and shortcomings as may be attributed to the Naturalization Service are of an entirely different character.

At the outset, the principal function performed by the government was that of investigation; the group of men who pursued the inquiries about aliens petitioning for citizenship was little more than a corps of detectives, bent upon ferreting out something, anything, that would show the applicant to be unfit. To begin with, this work was done under the direction of the Attorney-General of the United States. All naturalization proceedings, in fact, were in charge of special assistants to the various United States district attorneys, the examiners operating under them as field investigators. The politicians had a good deal to say about the selection of examiners. Many, if not most of them, were former pension examiners. Some had been in the postal service; some had had no experience at all in the government employ.

Without implying any dereliction of intention on their part, then or now, it may be said that few of them had legal training or were otherwise fitted to conduct the government’s part in court proceedings. The training of the examiners always has been of the most haphazard, inadequate character. Even under the operation of the Civil-Service laws, it was held that the kind of experience a man ought to have for the field service was that of general contact with the public--that of policemen, street-car conductors, and the like. Yet, as the practice has grown up, these men have to appear in important courts virtually in the guise of attorneys for the government; they must know the law, not only as set forth in the statutes, but as interpreted in innumerable decisions of Federal and state courts.

NEED OF UNIFYING INFLUENCE

The chief examiners have done their best, but differences of “personal equation” have resulted in a very wide diversity of policy and attitude. There never has been any adequate unifying influence in the service; supervision has been conducted largely by correspondence, and the correspondence has not always been self-consistent. Even in the matter of transmitting to the chief examiners the decisions of courts in naturalization matters, there has been a strong tendency to transmit chiefly those decisions which supported the contentions of the Naturalization Bureau, so that there have been cases in which examiners went on insisting upon interpretations of the law which had been overruled, “getting away with it” in courts whose judges did not keep close track of the decisions, to the detriment of petitioners who could not know their rights--since the alien, as a rule, has no one in court to protect him, and rarely is in a position to take an appeal.

In the majority of the courts, particularly those far from the great centers and having relatively little naturalization business, the judges regard it as more or less of a nuisance, do not keep posted about the law and decisions, and, looking upon the naturalization examiner not only as the accredited representative of the government, but as an expert in this field, follow his recommendations and contentions; and here, again, there being no one in court to represent the frightened or embarrassed petitioner, the point of view of the examiner becomes that of the judge, and the law is handed down accordingly. On the other hand, a few judges have taken the attitude that they would not recognize an examiner who was not an attorney admitted to practice before those particular courts.

“NOTHING TO LITIGATE!”

The Bureau of Naturalization has contended that a naturalization hearing is not a “case”; that there is nothing to litigate; that the examiner is present not as an attorney, but as a friend and informant of the court, with which abides the final responsibility. It holds that the petitioner does not need an attorney, the judge being assumed to be of course as solicitous to protect the interests of the petitioner as those of the country’s citizenship. No allowance is made under this theory for judges like the one, for instance, who regards it as his duty to “construe everything against the petitioner”!

The operation of the system certainly leaves the petitioner frequently, at least, in a most unsatisfactory and perilous posture; as witness the matter of the seven-year limitation upon “old-law declarations.” The crisis came in September, 1913, and there was a decision soon afterward in the United States District Court in New York ruling out all “old-law declarations.” A policy in regard to these declarations should have been made then--a unified policy, applicable throughout the Naturalization Service. Nothing of the sort was done; the decision was heeded in some districts and ignored in others, for five years!--until the Supreme Court of the United States, sustaining the holding of the District Court in New York, at one stroke guillotined, so to speak, thousands of declarants under the old law. In many other matters there is still not only uncertainty, but variety of interpretation and practice; a regrettable lack in effect of the “uniform rule” contemplated by the Constitution.

In many courts the point of view of the judge and that of the naturalization examiner are at variance, and this leads in some cases to open bitterness. Some examiners quibble and irritate the judge with trivial objections; some judges constantly ignore important provisions of the law urged upon them by the examiners. Between such extremes the petitioner is a helpless shuttlecock at the time, and later the victim of cancellation proceedings. There are “too many cooks,” too little supervised and unified, and among them the petitioner’s broth is spoiled. One of the crying needs of the Naturalization Service is a permanent law officer, able and willing and vigilant to watch the making of the statutes and decisions all over the country, and to inform and guide the representatives of the service in their interpretation of the law.

CONFUSED STATE OF THE EDUCATIONAL TEST

It shall be made to appear to the satisfaction of the court that, during five years at least immediately preceding the date of his application, he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.

Such is the substance of the law. It requires also that he must be able to speak the English language, and that each of his precious two witnesses shall, of their own knowledge, certify that he is “in every way qualified, in their opinion, to be a citizen of the United States.” The barbed entanglement of technicalities through which the petitioner must grope before the questions of substantial qualification can be reached, we already have seen.

Now, what does it mean to be “attached to the principles of the Constitution”? What manner of intellectual display is required to prove one “well disposed to the good order and happiness of the United States”? Around these two rather indefinite phrases rages the whole storm of “Americanization” as it affects the alien seeking to become one of us. Whether common sense, the notion of the man-in-the-street, the average, plain-spoken layman, shall prevail, or the ideas of a hypercritical “nativism,” depends upon the “personal equation” of the judge, the clerk, the naturalization examiner--or, rather, the diagonal of forces produced by the concurrence or conflict of all three, aggravated or modified by that of the petitioner and his witnesses.

A considerable--one might almost say an overwhelming--literature has grown up about this part of the subject of immigration; of scores, even hundreds, of books, pamphlets, leaflets, posters, diagrams, moving-picture reels, lectures, and what not else, designed to afford to aliens aspiring to citizenship that knowledge of “the principles of the Constitution” which the applicant must display to “the satisfaction of the court.” The number and variety of these is impressive, even startling; they vary from the appallingly elaborate and diffuse “Citizenship Textbook,” issued by the Bureau of Naturalization itself, to the simple and lucid folder issued by a judge at Duluth, Minnesota. One judge in Montana, who thinks “a residence of ten years should be required” before final application, has “a list of questions which every applicant who appears before me must answer. He is also asked many questions not contained in this list which go to his qualifications to become a citizen.” The printed list occupies nearly four newspaper columns of solid type, and covers everything relating to the governments of the United States, the state of Montana, the local county, city, and ward--a body of civic information beyond the ken, or the hope, of 999 out of 1,000 native-born Americans between the two oceans; yet, on the whole, only what every citizen ought to know about the government which taxes and rules him.

A judge in Missouri, who has “possibly two, not over,” of naturalization cases in a year, holds that an applicant should have “not merely an educational or intellectual test--for the more of either a man has the worse he may be for the country--but I would establish one of sentiment or principle, about as follows”:

Every applicant shall satisfy the court that he is familiar with, and attached to, such sentiments as are expressed in such writings as “A Man Without a Country,” “America,” “Declaration of Independence,” etc., and that he is possessed of reasonable opinions on necessity of government and duty of citizens to support the government and its laws, the freedom of the press, liberty of speech, obtaining redress for grievances, and a firm opposition to rioting, violence, force, and secret societies or orders countenancing or teaching overthrow of the government.

An Iowa judge says:

“Search the heart for the truth.” The chief thing is to have the heart right--to have love and attachment for liberty, justice, and humanity, and to be ready to die, if need be, for the maintenance thereof. It might be well to have a uniform course of instruction for applicants for citizenship, but I would not adhere to it too strictly, if the heart proved to be right.... No good man, a true lover of liberty, justice, and humanity, should be rejected, unless he utterly fails to meet the other requirements of the law.

A Pennsylvania judge thinks little of educational requirements; that they would exclude many desirable applicants.

The principle test that I apply is as to the honesty of the party. Under an intellectual test many honest, hard-working men would fail, while men who had the advantage of education would secure naturalization.... Where men are required to support a family and labor hard they have not much time to study.

A judge in Nebraska, who handles some 200 cases a year, declares:

The intellect is not a test of good citizenship. I know many people with insufficient intellect to procure much education, who cannot read nor write, who are excellent citizens; and many others who are highly educated and too crooked to make good citizens.

A California judge avers:

My observation has been that many of our best citizens are those who possess no extended education, and some of the most dangerous are of those who possess high educational qualifications.

A judge in central New York, who has large experience with naturalization, says:

Too much stress is laid upon information concerning the details of our governmental system, and not enough upon the candidate’s personal record, endeavors, and results. An Italian laborer who has been unable to learn the number of Houses into which Congress is divided, but is hard-working, steady, possessed of a desire to own his home and bring his family up in our ways, is more useful to us than some of more intelligence.

He holds that the principal difficulty with which desirable immigrants have to contend, in seeking naturalization, is the fact that “too much technical information is demanded by the young men who represent the Bureau of Naturalization.”

Over against such expressions as these place the opinions of one of the Ohio judges, who, after the fashion of the Know-Nothings of the ’40’s, would require twenty-one years’ residence before naturalization and “add to, rather than diminish, the present requirements,” admitting “only heads of families, with children”; or those of the Arkansas judge who avowedly “construes everything against the applicant,” and would admit a German under no conditions until after fifty years of residence. Such a diversity indicates the sort of difficulty confronting the alien in court, and the need of some unity of standards to be created by law, and a great simplification of the tests and examinations.

A letter was addressed to a number of experienced judges, known for their wisdom and humanity, asking for a tentative set of questions designed to disclose the knowledge thought to be essential to embody “attachment to the principles of the Constitution.” Replies were few, but they evidenced the difficulty of expressing in words such an “attachment.” Many of the judges frankly confessed both their inability to produce any such exhibit, and their conviction that the intellectual display was of least importance in the test of the applicant.

THE CRAZE FOR “AMERICANIZING”--SOMEBODY ELSE!

When the Great War burst upon the world, with its various kinds of hysteria, many Americans suddenly awakened to a passion for what has come to be called “Americanization.” Every sort of foreign-born, foreign-speaking--or even foreign-looking--person was seized upon as a subject or victim of this vague and little-ordered movement, with results as various as the degree of intelligence involved on the part of the Americanizers and the kinds of treatment inflicted; but to a great extent mischievous and tending to arouse hostility rather than “Americanism”--whatever the much-abused term might mean--in the breasts of the bewildered immigrant. Some of the effort, to be sure, was intelligent, considerate, and constructive.

It is to the credit of Richard K. Campbell, Commissioner of Naturalization, and Raymond F. Crist, his alert and enterprising deputy, that they were prompt in seeing the bearing of the Americanization movement upon their work. It is very easy now to criticize, from various points of view, the energy and enthusiasm with which the Bureau of Naturalization entered upon and increasingly absorbed itself in this activity, and to fan flames of jealousy between it and other organizations, governmental and what not, which have worked in this field. The fact is that, with all credit to others to which they may be entitled, the Bureau of Naturalization early saw, not only the essentials of this question, but that it was at bottom a question of education, and set itself to the task of inspiring the public-school authorities to adapt themselves to the situation, and of placing at their disposal, at least theoretically, the unique material embodied in the archives of the Bureau. It is regrettable, though hardly surprising, that, in doing so, it allowed itself to become both swamped in the magnitude of the job, and obsessed by a sense of proprietary precedence in the field; reaching out beyond rhyme or reason for sweeping powers and responsibility which it is ill-adapted to exercise, and, in that reaching out, neglecting to carry on the important functions normally attaching to its own business, and indispensable to the intelligent carrying out even of its own ambitions.

With its report for the year closing June 30, 1915, begins the recounting of activities of the Bureau in the new field. In so many words it is there recognized as a new activity--“a broadening of policy,” with a suggestion of justification, not to say apology, in the allusion to the Act of March 4, 1913, confirming the Bureau in charge of “all matters concerning the naturalization of aliens.” As early as the latter part of 1913, the Bureau was discussing methods of encouraging classes in citizenship, and “the elimination of the known evils attending some of the private organizations seeking, under the guise of instruction, to exploit the ignorance of candidates for citizenship as an easy means for the acquisition of a lucrative income” was referred to as one of the reforms that would follow a co-operative activity between the public schools, the public generally, and the Bureau of Naturalization.

It was seen that the influence of the Bureau for the betterment of citizenship could be extended to every hamlet in the United States through the expansion and extension of the naturalization laws. This plan proposed the organization of the public schools, with the Bureau of Naturalization, into an active unit for the development of American ideals of citizenship in the student body; the assembling together, on stated occasions, in the different metropolitan and other centers, of naturalized citizens and candidates for citizenship; the conduct of patriotic exercises, including addresses, the singing of national anthems, and a conferring of citizenship.

But it was not until the period covered by the 1915 report that the Bureau began to be greatly engrossed with this policy. In that report, which directed attention to the growing interest of naturalizing judges and others in the mental training of aliens for citizenship, and their co-operation with the Bureau “in arousing the interest of the public,” and thus operating upon the local school authorities to establish courses of training in English and in civics for alien residents who purpose to become citizens, the Commissioner himself utters a caution about the scope of business:

It has been pointed out to the state authorities that the government cannot undertake, even if it were one of its appropriate functions, to institute and operate training schools in good citizenship; that the making of a citizen of the United States is also the making of a citizen of the state in which the petitioner resides; and the results of such action are more immediate and more frequent in their effects upon state than upon Federal interests.

At that time the work of the Bureau force consisted chiefly of sending to the school authorities lists of aliens residing in their respective districts who had filed declarations of intention and petitions for naturalization, with intent that they should secure the attendance of such aliens upon public-school courses of training in good citizenship. The Commissioner pointed out that

The extent and character of this course of mental training must depend upon the enlightenment of the school authorities which experience alone can give.

From this time on, however, the Commissioner’s reports are characterized by an increasing emphasis upon the educational aspect of the Bureau’s work, the things to which it had formerly devoted itself diminishing in emphasis; while, at the same time, both in the reports and in activities not therein disclosed, the Bureau was seeking wide extension of its scope and powers, although its normal work was suffering from the shorthandedness of which it had complained ever since the Bureau was established.

EXTRA RESPONSIBILITIES SELF-SOUGHT

It has been the habit of the responsible heads of the Bureau of Naturalization, in reply to any suggestion that the Bureau was “overextending” itself in the assumption of educational functions, or that there was confusion and conflict between the activities of the Bureau and those, for example, of the Bureau of Education in the Department of the Interior, to revert, as in the Commissioner’s report for 1916, to the fact that the law imposed upon the Naturalization Bureau “charge of all matters concerning the naturalization of aliens”; to declare that it is “only complying with the law,” or “endeavoring, under great difficulties, to perform the duties laid upon us by Congress.” This is plausible enough on its face; but the fact is that, generally speaking, no duties have been laid by Congress upon the Bureau from the beginning save those which it has urgently sought; virtually all legislation affecting it--especially that legislation relating to “Americanization”--has been drawn by the Bureau and actively lobbied for in Congress by representatives of the Bureau. More than that, the Bureau has been exceedingly and notoriously aggressive in seeking widely extended scope and powers.

One of the most striking examples of this appeared in the so-called “King bill,” of the Second Session (1918) of the Sixty-fifth Congress, introduced by Senator King of Utah, with the purpose of establishing in the Department of Labor “a Bureau of Citizenship and Americanization, for the Americanization of Naturalized Citizens,” etc.:

The province and authority of this Bureau [says one print of this bill] shall be the Americanization of persons seeking American citizenship by naturalization, and of native and naturalized citizens, for the purpose of arousing a higher regard for the privileges and responsibilities of American citizenship in the minds of all citizens and permanent residents of the United States, and the administration of the naturalization laws and Americanization work throughout the United States.

The bill would have authorized the Director of Citizenship, therein provided for at a salary of $5,000 a year,

to make diligent investigation into the conditions and environment of permanent residents and citizens; to ascertain their sentiments of loyalty to the United States, their progress in the knowledge of American institutions, and the use of the English language; their relations of a social and commercial nature with their neighbors and fellow citizens, and to promote the betterment of that loyalty, knowledge, use, and relationship, and afford them such advice as may be of benefit to them and tend to increase their regard for our institutions of government, and to do such other things as may be prudent and wise in laying a foundation for a strong sense of loyalty and dedication to our institutions of government on the part of all permanent residents, candidates for naturalization, and citizens; and to show their progress in the adoption of the language and customs of the United States in reports from time to time upon the work of the Bureau to Congress and the Secretary of Labor, together with recommendations to Congress for further legislative measures to enlarge the province and effectiveness of said Bureau for the Americanization of such citizens and permanent residents, and to insure their attachment to the institutions of the United States.

The bill was not so much to create a new bureau, as to transmute the Bureau of Naturalization; the Commissioner of Naturalization was to become a subordinate of the Director of Citizenship, the entire personnel, machinery, and functions of the present Bureau of Naturalization being absorbed in the Bureau of Citizenship and Americanization.

That the scope of this revolutionary creation, with its extension of jurisdiction over all citizens, their social and commercial relations with each other, and their personal loyalty, was no inadvertence of exuberant language, is clear to an examination of an earlier version of the measure, which specifically confined the supervision and missionary espionage to “naturalized” citizens, “including the attitude of such citizens whose native tongue is foreign ... and their relations of a social and commercial nature with their neighbors and fellow citizens who are natives of this country or who have become thoroughly Americanized.” But even so early the scheme was designed “to the end that there shall be a thorough assimilation of all who permanently reside within the jurisdiction of the United States.”

Perhaps the most astonishing thing about this proposal is that it has the specific approval of the then Secretary of Labor, Mr. William B. Wilson, in a letter dated September 12, 1918, to Senator King, in which, over his official signature, it is declared that “the measure has been carefully considered,” and that the Department approves “the main objects of the proposed legislation.” That letter refers directly to the first draft of the bill, last quoted above.

However that be, and whatever might have been the views of the Secretary of Labor upon further consideration of the proposed legislation, the ambitious scheme died aborning. But it had a resurrection in another form, equally abortive, though still exhibiting the appetite of the Bureau for enlarged responsibility. At the instance of the Bureau there was inserted in one of the tentative drafts of the Sundry Civil Appropriation bill before Congress in the spring and summer of 1919 the following provision for an enormous addition to the jurisdiction, duties, and responsibilities of the Bureau of Naturalization:

... The authority to promote instruction in citizenship and English, now being exercised under the supervision of the Director of Citizenship, is hereby extended to include soldiers and sailors and all persons of the age of eighteen years and upward, and those in penal institutions.... In discharging this responsibility, the Director of Citizenship shall disseminate information regarding the institutions of the United States government in such manner as will best stimulate loyalty in those institutions, and secure the aid of civic, educational, community, religious, racial, and other organizations, and shall compile statistical information as to aliens in their relations to citizenship, and for expenses incidental thereto, including the rental or purchase of motion pictures and the transfer of any motion-picture negatives from branches of the government organized especially for war activities, remaining in the possession of the government, and such transfer to be without charge upon any appropriation. Credit for such transfers shall be given on the records of the Treasury Department in the final accounting by such specially organized branches of the government.

A fairly large order! This adventure, like the previous one, failed of consummation; but, nevertheless, there was (until a very recent time when the illegality of the whole business was brought to attention) a Director of Citizenship, even though Congress had given him neither status nor powers, and he was in being only by a vigorous stretching of legislation intended, if one may judge by what it says, for quite another purpose.