Part 14

(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.”[86] 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.[87]

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.