Part 11

The applicant must be able to “speak the English language”--this is required by the law. It is enforced with a great variety of degrees of strictness. Many an alien can understand what is said to him in English long before he has gained facility in speech. Also, in the majority of cases, especially where he is confronted by a stern and perhaps hostile judge, or one disposed to treat immigrants with contempt or ridicule, and a fiercely zealous naturalization examiner bent upon having the petition denied if possible, he is promptly tongue-tied by stage fright. It is common for the petitioner to tell the court, through his witnesses or the interpreter, that he knows what a certain question means and the answer to it, but cannot express it in English. Many of the questions call for a simple “Yes” or “No,” but a frightened or unintelligent applicant, who has learned certain things by rote, may glibly answer “Yes” to the questions which ought to be answered by “No,” and vice versa. There was a fellow in Leadville, Colorado, who for a long time occupied the status of witness for nearly all the Austrians who applied in that place for naturalization, and who to a large degree superintended their training for the examinations. After a while it was discovered that he had a system by which he dictated the answers to the questions, kicking the petitioner in the ankle when the answer should be “Yes,” and nudging him with his elbow when it should be “No.”

Both judges and examiners vary greatly in their interpretation of what constitutes ability to “speak English.” Some give the petitioner the benefit of doubt and make large allowance for natural embarrassment and fright. Others, as one judge frankly says, “construe everything against the applicant,” on the ground that citizenship is a precious privilege which should be accorded to as few as possible, and only to those about whom there can be no question. The court may accept a grunt, a shrug, a gesture, a shake of the head, as indicating a sufficient understanding of the question.

Generally the judge is humane. There was a case in Arizona in which a mild-looking Mexican insisted that he was both an anarchist and a polygamist--plainly showing that he imagined the terms, about which he was sharply asked, to represent qualities which he must possess. The judge knew the man; that he was of good conduct, conventional ideas, and married to one wife.

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

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

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

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

Between the morning and afternoon sessions of the court the Mexican was quietly interrogated and readjusted, and the court admitted him. In thousands of cases, not so picturesque, the applicant called upon for relatively elaborate views about theories of government, and even more abstruse matters, is either bewildered or on general principles deems it safer to remain silent; in which case the impression of the court, and his action upon it, depend very much on the personal equation, the humanity, and common sense of the judge.

A deaf-mute is exempt from the requirement of ability to “speak” English; so is an alien who has made entry for a homestead on the public lands. The latter can make his entry immediately upon filing his declaration of intention; but he cannot complete his title until he is fully naturalized. A few courts virtually ignore this exemption, and require the homesteader to speak English and pass the other educational tests. Generally the judges are lenient with such people.

The law does not require the applicant to be able to _read_ English; but there is an increasing tendency in the courts to require it regardless of the law. After all, the judge is the final arbiter; he must be satisfied that the applicant is “in all respects qualified to be a citizen,” and, if he chooses to regard a person who cannot make sense out of a current newspaper as not thus qualified, he can deny the application on general principles. The whole matter of educational qualifications varies widely in different jurisdictions, largely because of the absence of a definite standard of knowledge, intelligence, and general ability established either by Act of Congress or by the Naturalization Service.

ATTACHED TO THE CONSTITUTION

The applicant must be “attached to the principles of the Constitution,” and “well disposed toward the good order and happiness of the United States.” Can a man be “attached to the principles of the Constitution” without having read it? If not, then the vast majority of the native-born citizens of the United States are not so “attached,” for it is a matter of the most notorious fact that very few Americans, not professional lawyers, ever have read it or could pass the most rudimentary examination upon its substance. There is, however, a widely prevalent tendency on the part of the courts to require petitioners not only to swear that they have read the document, but to pass a pretty stiff examination, either before the naturalization examiner who may certify the fact, or even in open court. And it is upon the phrase “attached to the principles of the Constitution” that the Naturalization Bureau has erected its whole elaborate and ambitious campaign of education for citizenship. But its interpretation is so vague and unsettled, so subject to the whims, theories, prejudices, and intellectual limitations of the individuals upon whom its enforcement devolves, that it seems highly desirable for Congress to establish by law definite and simple requirements embodying the minimum qualification to be demanded of applicants for citizenship to demonstrate both their understanding of our form of government and their “attachment to the principles of the Constitution.”

One of the classic anecdotes of the Naturalization Service has to do with this matter of attachment to and understanding of the Constitution. In the court of a judge who insisted upon every petitioner having at least read it, an Irish petitioner at the morning session of court was ordered to read the Constitution, or have it read to him, and to come back in the afternoon for further hearing.

“Well, did you read the Constitution to him?” demanded the judge of the citizen who was acting as mentor of the petitioner.

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

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

“He is, your Honor; when I got through readin’ it to him he said he thought it was a blame fine Constitution.”

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

An Italian petitioner in one of the Southern courts exhibited a good knowledge of current political history, and at the same time a realization of his own limitations.

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

“Mist’ Wilson.”

“Who is the Vice-President?”

“Mist’ Marsh’.”

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

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

“Very good, Tony, and quite correct. Now, let me ask you something else. Could you be President of the United States?”

“Oh, no! no! Judge, please!” cried the dismayed petitioner, “you have to excuse me! I’m too busy!”

IN THE MATTER OF “CONTINUOUS RESIDENCE”

The fact of continuous residence within the United States for five years, and within the particular state for one year next preceding the filing of the petition, must be established to the satisfaction of the court. To the layman this would seem simple enough; but there is hardly anything connected with the process of naturalization about which there has been so much variety of interpretation. What constitutes “continuous residence”? It is said that a court in Utah disqualified an applicant because once during the five years he stepped across the Canadian border far enough and long enough to buy a sandwich! Shall a man lose his “residence” because of a walk across the International Bridge at Niagara Falls? Suppose he is a carpenter, or a farm hand, and goes over into Canada, or Mexico, for the summer months, or long enough to build a house? Suppose there is an estate to be settled up in the old country, or that the alien’s aged mother is dying in Copenhagen or Buda-Pesth, and yearns to see her son once before she goes. Shall that invalidate his residence? There are many judges who will not tolerate any absence whatever from the country, on any pretext.

In the great bulk of practice, however, it has simmered down to the question of “intention.” Reasonably carried out, as in other matters, it meets the average case. If the petitioner always, and everywhere, during the five years maintained his intention in good faith to become a citizen, and especially if he preserved a specific residence, both the courts and the Naturalization Service on the whole have waived the literal words of the requirement. But within that general situation there are degrees. There are judges who will permit an absence as long as two years, if “intention” is clear; some set a limit of one year, others of six months. Generally speaking, any absence in excess of six months is viewed with suspicion.

There are two reasons, as the law stands, for insistence upon residence virtually continuous. In the first place there is the wording and evident intention of the law, which must be obeyed in spirit, anyway. In the second place, in case of any protracted absence, the witnesses hardly can know what he has been about, and certainly cannot swear, as they must under the statute, to the fact of continuous residence. If the petitioner has been out of the ken of his witnesses in some other part of the United States, he can prove good conduct and American residence by depositions; but the law does not contemplate depositions regarding his conduct on any foreign soil, however legitimate his reason for being there. And if he has been in other parts of _the same state_, he cannot prove anything about it, by witnesses, depositions, or otherwise.

THE ABSURDITY OF THE “INCOMPETENT WITNESS”

This brings us to one of the most extraordinary provisions of the law--that regarding the proof of eligibility by witnesses and depositions--a provision responsible for the exclusion of thousands of perfectly fit persons, and for a vast deal of wholly unnecessary hardship and injustice.

During the eleven years 1908-1918 inclusive, according to the statistics given in the annual reports of the Commissioner of Naturalization, of 107,484 petitions for naturalization denied, more than one in four--28,262, or 26.3 per cent--were denied on the ground of “incompetent witnesses.” The percentage in many states is very much larger than that: Illinois, 38.3; New Jersey, 37.2; Michigan, 36.5; Iowa, 36.4; Nebraska, 36.0; Kansas, 35.9; Colorado, 32.8; Arkansas, 32.4; Oregon, 32.2; North Carolina, 31.9; Indiana, 31.1; Wisconsin, 31.0; Missouri, 29.5; New Mexico, 29.3; Kentucky, 28.8; Montana, 28.4; Utah, 27.0. The low states in this respect are few--Rhode Island, 5.9; New Hampshire, 8.0; Connecticut, 9.0; Vermont, 9.1; Massachusetts, 9.2; South Carolina, 11.4; Florida, 11.5.

Now, what does this mean in human terms? To begin with, a petitioner for naturalization may not prove his eligibility, as he would prove any other set of facts in court, by such an exhibit of evidence of various kinds as would satisfy a reasonable judge or jury. He cannot bring a group of neighbors who have known him; his employer, his priest or pastor; the village school-teacher who teaches his children; a sheaf of affidavits from people who have known him in various places where he has lived in the state. His exhibit of evidence is rigidly and most absurdly restricted, and the restriction is of no benefit to anybody--except, perhaps, the Naturalization Service in somewhat simplifying their work of investigation.

His petition must be accompanied by the affidavits of precisely _two_ witnesses, who must accompany him personally when he files his petition, and must accompany him again, ninety days or more later, when his case comes before the court for hearing. _Two, only two, and the same two._ Only in case one of them dies, or moves out of the jurisdiction of the court, is he allowed to substitute. Each witness must be a native or naturalized citizen of the United States, and must swear to that fact. And each must swear that he has known the petitioner during the whole period of five years of residence within the state, or of one year in the state if he lived previously in other states, and satisfy the court that he has seen the petitioner frequently enough to know that his residence has been continuous and his conduct such as to warrant his admission to citizenship. Some judges require the witnesses to have seen the petitioner virtually every day, “constantly, as a neighbor”; “at least once a week,” for five years. The examination of the witnesses is frequently more severe, if possible, than that of the petitioner himself; for the law requires them to be “credible.” If a witness can be shown by the naturalization examiner to be of dubious moral character, the court probably will deny the petition verified by him, and leave the petitioner with only one witness. He must have two, and he cannot substitute a better one!

In a state which has allowed aliens to vote upon their declaration of intention, innumerable foreign-born persons have in good faith believed themselves to be citizens. If such a person appears as a witness for a petitioner, the petition is denied--properly enough, except that the petitioner might easily produce a substitute who could not be objected to; but no, he must have not only exactly two, but _the same_ two, throughout the proceeding. Or, if one or both of these particular witnesses turn out to be honestly mistaken in thinking they have known the petitioner for the whole five years; if, for example, it turns out that they could not have known him more than four years and nine months--the petition is denied; “incompetent witnesses.” In the fiscal year ending June 30, 1918, more than 2,300 petitions were denied for this cause, and it is safe to say that, in a very large majority of the cases, the witnesses were acting in perfect good faith.

The practice cuts very close. _In re_ Welch (159 Fed., 1014), decided in 1908, reports a case in which it was shown that a witness had not known the petitioner for five years at the time of the filing of the petition, but had known him for five years by the time the hearing was had. In that case the court permitted amendment of the date of the petition, but required a fresh posting.

Congress took note of the difficulty an alien might labor under if he were obliged to move about from state to state during the five years’ period, and provided that four years of the time, in the event of inability to bring witnesses who could swear to knowledge of the whole period, the applicant might prove residence, etc., _in other states_ by deposition. This helps a good deal, as far as it goes; but in any event the last year, the year of residence required to be within the state where the petition is filed, must be covered by “two witnesses”--_two, only two, and the same two_. Suppose the case (and there have been many such) of a Methodist minister, an Englishman if you please, who, during the five years preceding his petition, has been assigned to two or more pastorates within the same state at points more or less distant from each other. He could produce almost any desired array of witnesses to cover his residence in each of the several places, and affidavits galore; but he must not. There is virtually no chance at all of his being able to find two, only two, and the same two, who can testify to personal, neighborly knowledge of his residence in all places. What, then, of an average immigrant who has been obliged to shift about in search of employment, resident all through the year in the state, but never staying long enough in one place to establish intimate relations with possible witnesses under such restrictions?

JUDGES DENOUNCE THE ABSURDITY

The judges are all but unanimous in their denunciation of this system. The comment of a United States district judge in the Middle West represents the sentiments of most:

I do not think it tends to raise the standard of citizenship or to do anyone any good to have the requirements such that, if a petitioner has lived in the state for the full five-year period, he must prove that entire residence and his good character and reputation during that entire period by the two petitioning witnesses. The two petitioning witnesses should have known him for at least a year, and be able to make a showing for at least the last year of the period. I know of nothing so sacred about a state line that this great difference should be made between the petitioner who moves here from another state and the petitioner who moves here from a distant part of the same state.

A Michigan judge gives a striking example of the injustice of the discrimination:

The greatest copper mines in the world are in the Upper Peninsula of Michigan. The greatest automobile factories in the world are in the city of Detroit in the same state. These sturdy miners of Houghton and Keweenaw counties in the Upper Peninsula hear of the automobile industry in the city of Detroit, and after three or four years’ residence up there, move to Detroit and take up residence there. Under the present law, they must find two witnesses who have known them for the entire five years. You will recognize how difficult it will be for them to find two witnesses who knew them in the Upper Peninsula, moved to Detroit when they did, and have known them ever since. The copper mines of the Upper Peninsula are five or six hundred miles from Detroit. Can anyone suggest any good reasons why these petitioners in Detroit should not be permitted to prove their Detroit residence by two witnesses who sign their petitions, and their Upper Peninsula residence by depositions or other witnesses? Why punish so unnecessarily the man who continues to reside for the full five years in the same state, while we justly permit another man, who moves here from another state, perhaps a distance of fifty or a hundred miles, to make his proof as to that state by deposition?

Mind you, I would make them prove their residence in the particular city or county ... for the full period of their residence there, by the two witnesses who signed the petition; and, of course, I would require them to have resided in such municipality for at least a year.

Says one judge:

In the far West, where the distances are so great and the expense of travel such a hardship, the matter might readily be handled on a mileage basis, so that the petitioner would prove a year’s residence by the witnesses who attest his petition, and a previous residence within the same state more than, say fifty miles, from the place of holding court, by depositions.

Of 334 judges of naturalizing courts in all parts of the country who specifically addressed themselves to this question in reply to a questionnaire of the Americanization Study in the summer of 1919, only 34 were content with the present system; 289 specifically favored amendment of the law for the reasons, and to the effect, substantially as suggested above.

A clerk of the court in Arizona who handles the naturalization business, and in his letter displays a keen and intelligent interest in the human aspects of the question, says:

I have had numerous petitioners who, for ordinary purposes, could prove every day of their residence in this state; but for naturalization purposes were unable to prove their residence, even though the entire five years may have been--and in some instances has been--in this one county! I consider it inequitable for the reason that the man who travels from mining camp to mining camp may reside four or more years in any number of states, and at any number of camps in each state; but, if he then removes to another state and resides in that state one year, he may obtain citizenship. Yet the rancher who resides five years in one state, or even in one county, but during the five years resides in two different localities of the state, or even on two different ranches in one county, may be (and under the present law frequently is) deprived of citizenship for the reason that two witnesses, only two, and each of these two, must prove the continuous five years’ residence.

I some time ago became convinced that this provision of the law was not equitable, and in January, 1919, wrote to our Congressman in the hope of convincing him and getting a bill introduced to remedy it. He thought it too late in the session to attempt it, and that it would be useless to attempt it without the approval of the Department of Labor, which approval was withheld.

Nevertheless, it is to be presumed that the Bureau of Naturalization did approve (since the proposal was embodied in the same bill containing one of its attempts to secure a notable extension of its powers)[80] a measure of concession in the matter of witnesses.[81] A proposed amendment to Section 10 of the Naturalization Law would provide:

That in case the petitioner has resided in two or more parts of the county in which he resides at the time he files his petition, and for this cause is unable to procure two witnesses, who are citizens of the United States, who are qualified and competent to establish the entire period of his residence in such county, he may establish his residence at each of the places in such county by the affidavits and testimony of at least two witnesses, citizens of the United States, to each place of residence, both in his petition and at the hearing.

The same bill would have mitigated and, so far as it went, humanized the restriction upon substitution of witnesses by adding to Section 4 a subdivision providing that

Where either or both of the original subscribing witnesses to a petition for naturalization, or those giving evidence by deposition in support thereof, shall be found to be incompetent or not qualified to establish the proof of residence, good moral character, or other evidence required by law, the petitioner may substitute other qualified and competent witnesses at, or prior to, the final hearing. The hearing of the petition may be continued for this purpose and the names of the substituted witnesses may be ordered publicly posted, in the discretion of the court, if such posting shall be deemed necessary. Any petition for naturalization may be amended to correct manifest errors appearing therein and made in good faith.

DEPOSITIONS OF WITNESSES