Part 12

Mr. Raymond F. Crist, then Deputy Commissioner of Naturalization, in testimony before the House Committee on Immigration and Naturalization, prior to the enactment of the Act of May 9, 1918, stated that the Naturalization Service was habitually represented at the taking of the depositions by which a petitioner is permitted to prove his residence in states other than that in which the petition is filed. This must have been a slip of the tongue, for it is very far from being in accordance with the facts. Such a course would be a physical impossibility, especially in the present and past short-handed condition of the field service. As a rule the notaries public who attest these depositions are designated by the several chief examiners; but many of them are in small places, to which examiners never go. In point of fact, in most cases, the depositions are not viséd in any way whatever, so far as the naturalization machinery is concerned, or examined at all until the judge reaches the particular case. They go direct from the notary to the court in which the petition is to be heard, in a sealed envelope which is not expected to be opened until the day of the hearing--unless the court has, by specific order, authorized the naturalization officer to open and examine them. A very considerable number of them--one person familiar with the practice estimated the percentage as high as 75 per cent--are defective in some particular; the same authority thought at least 40 per cent of them would be so defective as to render them, under strict construction, inadmissible as evidence. For example, they will fail to assert that the deposing person has known the petitioner during the required period of time; or will not say, categorically, that the affiant is himself a citizen of the United States. As a rule, it is not until the affidavits are examined in open court by the judge or examiner that their insufficiency is disclosed, for the first time, to the petitioner. He may not be admitted until the papers have gone back for correction, or a new set prepared. That sometimes means a delay of six months, a year, or even longer--a very serious matter to a petitioner upon whose naturalization may depend his title to a homestead. There is nothing in the law prescribing the method of handling this matter; it is subject to regulation by the Bureau of Naturalization in its discretion; and inasmuch as the Naturalization Service declares itself, and ought indeed to be, the friend of the petitioner, guarding him against errors which may invalidate his whole effort and lead to the cancellation of his certificate even after he gets it, it ought to devise some procedure for examining every deposition. No petitioner should be allowed to come into court until his papers have been scrutinized, at least for technical defects. In certain districts of the Naturalization Service this has indeed been the practice in an informal way and to a limited extent. It would seem that it ought to be invariable. The Service has done excellent work in shutting out all manner of runners, professional witnesses, and other kinds of pseudo-assistants to the alien; this has left him in the matter of depositions, as a general rule, without well-informed, disinterested, or intelligent guidance, with the result that he has no adequate warning against defects, either important or trivial, which may vitiate his application. When he comes into court, all of his papers should be perfect, and all the facts cleared of technicalities, so that the judge may pass exclusively upon the merits of the case.

An applicant for naturalization must state in his petition whether or not he ever has filed a previous petition, and if so, what became of it. There have been instances in which a former petition was granted, but for some reason the record of it cannot now be found. In such a case the petitioner would have the greatest difficulty in getting proofs of his citizenship. His new petition may be denied on the ground that he is “already a citizen,” but it leaves the record in an unsatisfactory condition; although his copy of the order of denial, stating that he is a citizen, serves fairly well for most purposes to certify his citizenship.

“GOOD MORAL CHARACTER”

It is customary for naturalizing courts, in denying petitions, to add some phrase governing a later renewal; such as “without prejudice to renewal”; or “with prejudice to renewal before the expiration of five years from the date of this order of denial.” In absence of such a phrase the court passing upon the second petition--especially if the former denial was on the ground of “immoral character”--requires the lapse of at least five years and exceedingly good proof of reform. The law requires that the petitioner must show affirmatively not only that during the whole period of five years immediately preceding the date of his petition he has behaved as a person of good moral character, attached to the principles of the Constitution, etc., but that he _is_ at the time of the petition such a person. Courts have been known to deny petitions for acts committed before the beginning of the five-year period, on the ground that they involved ineradicable moral turpitude. Judges have shown much liberality on this point, however; there was a case of an old homesteader who had spent several years in the penitentiary; but the judge inquired far enough into the history of the matter to learn that the man was convicted as the result of a conspiracy on the part of certain neighbors who wished to get his homestead.

The latitude of the courts in this respect is very wide, and interesting slants are to be found in the decisions. There was a saloonkeeper in Chicago who participated in the then general custom of keeping liquor saloons open on Sunday in violation of the law, the policy of the city administration at that time being that of non-enforcement. There came a time when public sentiment required enforcement of the Sunday-closing law, and thereupon this man promptly obeyed the orders of the police to that effect. When his petition for naturalization came up, it was held that the consent of the authorities to his disobedience of the law was no excuse; a person who would accept the benefit of an evasion of the law could not be of “good moral character.”

Said the court:

If a rule were laid down that it is immoral to knowingly and willfully violate the law in a community where public sentiment approves the law, but not immoral in a community where public sentiment does not approve the law, it would be most disastrous to the good order and well-being of society.... That public officers charged with enforcement of the law do not do so cannot change the effect upon the moral character of a man who willfully and habitually violates it.[82]

This was a case in which the government succeeded in canceling a certificate already granted, and it shows, as do many others, what a severe gantlet the petitioner must run, and how his past is combed over before he can show that he is altogether qualified. Gerstein was required to wait before filing a second petition; the court said:

The order and decree of naturalization of the Superior Court [of Cook County, Illinois] is reversed and the application of appellee for citizenship denied, without prejudice to his right to file another application _when time has removed the disqualification_.

THE FINAL CEREMONY--OATH OF ALLEGIANCE

The law requires that the Oath of Allegiance shall be taken in open court as the final act of the petitioner before being formally admitted to citizenship; thereupon the decree is entered and certificate issued; but the Naturalization Service is forbidden by its regulations to issue the certificate until the judge’s signature is upon the order. Sometimes the clerk rattles off or mumbles the oath very indistinctly, and the petitioners, often a large number of them, hardly understand a word of the solemn ritual. It is becoming more common for the judge to require everyone in court to stand while he delivers the text of the oath loudly and clearly. In some courts where there are many applicants, and all concerned are pressed for time, the persons to be naturalized are kept in one part of the room until the docket is cleared, whereupon the oath is administered to them in groups of nationality; each nationality group standing with upraised right hands while the clerk or judge reads the words, and names the particular “prince, potentate, state, or sovereignty,” allegiance to whom, or to which, is to be abjured. Sometimes this ceremony is a very hurried, perfunctory, and undignified performance; sometimes a very solemn and impressive one. During the high-pressure process of naturalizing great numbers of soldiers in the army encampments during the war, it was sometimes the custom to have all nationalities stand at once, the clerk naming all the sovereignties concerned in one series, with the presumption that each individual would mentally isolate the one which he was supposed to have in mind. There were occasions when this helter-skelter method was pursued for the benefit of as many as 1,200 petitioners together.

CEREMONIES OF INITIATION

There is a growing movement in favor of having public ceremonies of “initiation,” in which the whole community is represented, to welcome the new citizens; to impress upon both the newcomers and the people to whose fellowship they are being welcomed, the importance and solemnity of the occasion. An increasing number of judges are carrying out this idea in their naturalization proceedings; adding to the formalities required by the law a speech either by the judge himself or by some representative citizen, or both, in which the momentous significance of the act in which the alien and the court have joined is emphasized. Some judges make a practice of giving to each new citizen a small flag, a special certificate, a leaflet or brochure setting forth the sentiments appropriate to the occasion. Much more common is it becoming for public-spirited citizens to organize a meeting of the same import. Here, for example, is the program of such a meeting, held in the Music Hall at Fall River, Massachusetts, on May 7, 1919, following a naturalization session of the local court, designated as “Reception and Welcome to Fall River’s Newly Naturalized Citizens”:

PROGRAM

HON. HENRY F. NICKERSON, Presiding

Music _Orchestra_

Singing--“America” _Audience_

Address of Welcome _Hon. Henry F. Nickerson_

Response by a naturalized citizen _James B. Kerr_

Selection _Orchestra_

Address _Rev. Everett C. Herrick_

Pledge of Allegiance--_Led by Boy Scouts_:

“I pledge allegiance to my flag and to the country for which it stands; one nation, indivisible, with liberty and justice for all.”

Presentation of Certificates of Naturalization _M. B. Irish, Sec. Fall River Immigrant Committee_

Prayer _Rev. Vincent Marchildon_

Singing--“Star-spangled Banner” _Audience_

Informal Reception

Here is another program--of the “Americanization Meeting in honor of those who were admitted to citizenship April 19, 21, 22, 1920,” held in the Union High School at Grand Rapids, Michigan, April 30, 1920, under the auspices of the Grand Rapids Board of Education and the Americanization Society:

PROGRAM

HENRY E. CROW, President of the Board of Education, Presiding

JOHN W. BEATTIE, Supervisor of Music, Song Leader

Song--“America” _Audience_

Address _Christian Gallmeyer, Mayor of Grand Rapids_

Folk Games _Pupils Sibley School_ Directed by _Miss Ila Krumheuer_

Address _Fred J. Schlotfeldt, Chief Naturalization Examiner, Chicago, Ill._

Songs _Audience_

Presentation of Citizenship Certificates _Judge Willis B. Perkins, Circuit Court_

Pledge of Allegiance to Flag--_Audience, led by Boy Scouts_:

“I pledge allegiance to my flag and to the country for which it stands; one nation, indivisible, with liberty and justice for all.”

Address to New Citizens _A. P. Johnson, Publisher Grand Rapids “News”_

Songs _Audience_

Address _Raymond F. Crist, Director of Citizenship, Bureau of Naturalization, Washington, D. C._

“Star-Spangled Banner” _Audience_

Mrs. Henrietta Briggs-Wall of Washington, D. C., has presented admirably the spirit of this movement in a pamphlet proposing a general “New Patriot Plan,” to utilize the Fourth of July throughout the country for the celebration of the “civic birthday,” alike of the native born who, during the past year, have attained the voting age of 21 years, and the newly naturalized foreign born. “In other countries,” says Mrs. Briggs-Wall, “much ado is made over the crowning of kings and queens who attempt to rule over others; there is much more occasion for general rejoicing when newly enfranchised citizens attain their share in the honors and duties of self-government.” The plan proposes in general a Fourth-of-July celebration in every community in America to which the newly enfranchised shall be invited as guests of honor. The author says, among other things:

The natural birthday is remembered by the family; the “civic birthday” should be honored by the community.

Inauguration ceremonies should accompany this newly acquired power. These exercises may consist of addresses to them [the newly enfranchised], music, a variety of activities for their entertainment and instruction; all of which, as an object lesson, will promote the patriotism of all the people.

Prizes may be offered to those who bring the greatest number to register in the “Record Book of New Patriots”; also to those who may try, if they choose, to write the best essays on “true patriotism.” ... The customs and convenience of different localities will suggest varying methods.

It is appropriate that the birthday of freedom, the civic birthday of our country, should be chosen to celebrate the civic birthday of the citizen. It is the best possible holiday for patriotic purposes; the audience is already furnished, and the minds of the people are in a receptive mood. It occurs at the time of year when picnics, excursions, and out-of-door celebrations of all sorts can be easily arranged in honor, and for the pleasure, of the new patriots.

Criticism, commendation and reform alike, to be either fair or judicious, must bear in mind that the naturalization system which has been built up--and such parts, absurdities, inhumanities, and bureaucratic excrescences as have grown up--under the Naturalization Act of 1906 represents when all is said an honest, diligent, and wholly patriotic effort to make impossible the now almost incredible scandals of former times; to establish and vigilantly maintain proper standards of character and intelligence by which to test those of other nativity who desire to join our fellowship and participate in our sovereignty; and to fit and educate those who are admitted for the better appreciation and performance of the unique privileges and responsibilities of American citizenship. The remediable evils, some of the more conspicuous of which have been indicated, seem to be due in part to survival among us of general race and anti-foreign prejudices, despite our historic professions and democratic traditions; in part to the mere inertia of custom and habit characterizing all governmental institutions; in part to the “personal equation” of those upon whom, in various parts of the country, falls the duty of administering the law.

The experience of these fifteen years has demonstrated that the law, as it stands, is on the whole just and effective for its purposes. Its defects can be remedied; its sound features strengthened and clarified. It is time to modify it in some respects; to standardize the tests and conditions enforced under its provisions, to the end of removing, or anyway diminishing, the opportunity for the erratic operation of “personal equation” and the theories, whims, negligences, together with the illegal and extra-legal practices, in both the executive departments and the courts, of which the aspirant for citizenship is the hapless victim.

VI

PERSONAL EQUATION IN NATURALIZATION

When we speak of the “personal equation” as an important factor in the adoption or rejection of an alien applicant for citizenship, we are likely to be thinking chiefly of the personality of the petitioner; of his character, intelligence, education, social training and experience; of his general fitness and capacity for assimilation of our language, customs, traditions, institutional relations--what we are pleased to call our “fundamental principles.” But this is only a part, and not always or necessarily the most significant and controlling part, of the situation. There are other “personal equations” to be considered. For while it is true in one sense that the applicant does pass into the maw of a machine, constructed “of law rather than of men,” and governed by more or less precise and automatically operating regulations from whose technic the individuals on either side of the process may not materially depart, the fact is that there is hardly any other legal process in our governmental system in which personality--individual ideas, prejudices, idiosyncrasies--plays so large a part. In no other activity of the courts is the individual petitioner so entirely at the mercy of the court, so completely without recourse in the event of a decision against him.

Strictly speaking, the proceeding is judicial; an _ex-parte_ case in an important court, in which a petition is filed with the clerk, comes in due course before the judge in person; evidence is received for and against the granting of the privilege requested, and the judge decides in a formal order and decree, pro or contra; the petition is granted or denied, as the case may be. For every petition is decided and disposed of in some final way, even though it may be continued or postponed once or more. It is doubtful, however, whether anywhere in our judicial procedure--even in the minor courts where so often farcically unjust “law” is inflicted upon defenseless persons--may be found a class of cases departing so far in practice from the apparent simplicity of the theory; where the petitioner is subject to so heavy handicaps of technicality; to so great an extent at the mercy of personal whims and mental limitations, of blunders and negligences--and “red tape”--of persons over whose activities he has not the slightest control, with very little right or opportunity to have beside him anyone to protect him from encroachment upon his rights.

The Constitution of the United States gave to Congress exclusive authority “to establish a uniform rule of naturalization.”[83] It might have been inferred that the intention was to make the process strictly an affair of Federal administration; but Congress did not so construe or utilize the authority. It established, by the original statute and subsequent legislation, uniform standards of requirement as to racial restriction, preliminary period of residence, literacy, and moral qualifications; but in effect it gave the jurisdiction and administration of the law back to the states--not in so many words, to be sure, but by committing the naturalization function to local as well as to Federal judges in every state and territory. Nothing could have been devised more surely to subject the operation of the law to the peculiarities of local conditions and feeling, and to the warps and twists of personal notion.

From the beginning, in the first general naturalization law enacted after the new republic got under way, the function of admitting new members of the nation has been vested in the courts--a _judicial_ power and activity. So it remains to-day. And with the sole exception of Canada, the United States is unique in respect of this method of naturalization. England, France, and virtually all of the other nations vest the power in some ministerial agency.[84]

A FUNCTION OF LOCAL COURTS

At first glance it might seem fitting and wise to confine the function (if to the courts at all) to the _Federal_ tribunals, in the interest of freedom from local political influence, uniformity of interpretation and practice, and recognition of the fact that citizenship is chiefly a relationship to the nation as a whole. Always, indeed, there has been a considerable body of sentiment in favor of such a change in the practice. Many of the state judges would favor it; some for reasons of principle, but most because they would gladly get rid of a body of duty which to many is irksome and a distasteful interference with their ordinary matters of litigation by duties which they regard as properly more administrative than judicial. No Federal judge will hear of any such addition to their already great burden of work.

The reasons to the contrary are weighty and thus far have been controlling. In the first place, after all is said, an individual, however national his citizenship in the large sense, is politically a unit of the state in which he resides. He does not vote for any strictly Federal officer; the only civic relationships which he bears to the nation as such are those of direct taxation and national military service--and both of those are of comparatively recent establishment. He does not vote for President of the United States, but for a group of Presidential electors who will cast the vote of his state in the Electoral College. When he votes for two Senators and one Representative in Congress, he votes for them as representatives of his own state and Congressional district. The states, as a rule, have been very jealous of every effort to take the direct control of the selection of their citizens out of the hands of officials amenable to local sentiment.

There is another and even better reason, in the fact that the United States courts are relatively few and far between, and the expense of time and travel which would be imposed upon applicants, living elsewhere than in large cities, for having to go (as they do now twice and often more than twice) to the nearest Federal courts would be prohibitive upon all aliens but the most prosperous or those whom some one might have a motive, political or other, for subsidizing in this way. In not a few sparsely settled regions, even as it is now, a petitioner must travel, and take his two witnesses, a total of many hundred miles before he can consummate the process of naturalization and obtain the precious certificate without which he cannot complete his title to his homestead.

The existing law, modified in its allusions to territories which since have become states by the various kinds of legislation relative to their statehood, thus describes the courts which are to have the power to pass upon applications for citizenship:

United States Circuit and District Courts now existing, or which may hereafter be established by Congress, in any State; United States District Courts for the Territories of Arizona, New Mexico, Oklahoma, Hawaii, and Alaska; the Supreme Court of the District of Columbia, and the United States Courts for the Indian Territory; also all courts of record in any State or Territory now existing, or which may hereafter be created, having a seal, a clerk, and jurisdiction in actions at law or equity, or law and equity, in which the amount in controversy is unlimited.

“PERSONAL EQUATION” OF THE JUDGES