Part 7

The people of the United States resident within any State are subject to two governments; one State and the other national; but there need be no conflict between the two. The powers which one possesses the other does not. They are established for different purposes, and have different jurisdictions. Together they make one whole, and furnish the people of the United States with one government, ample for the protection of all their rights at home and abroad. True, it may sometimes happen that a person is amenable to both jurisdictions for one and the same act.... This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties and claims protection from both. The citizen cannot complain because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalty which each exacts for disobedience to its laws. In return he can demand protection from each within its own jurisdiction.

There is still another jurisdiction to which citizens must give attention, and to the foreigner it is an added perplexity in the understanding of our system: the purely local laws, ordinances, and rulings of city, health, police; of country, town, and village; and sometimes these seem to run counter to one another, and leave him in a maze of fear and uncertainty--to say nothing of those mysterious exceptions, exemptions, and immunities which seem to be accorded for the benefit of those who, by political loyalty or subserviency, favoritism--and even cash payments upon occasion--have got themselves “in right,” as the saying goes.

The problems of national solidarity and loyalty raised so acutely all over the country by the exigencies and conflicts of the war have made the mass of the people of the United States keen as never before about the standards and technical tests of citizenship. The tendency, very marked now, is to establish and uphold the uniformity of conditions which beyond a doubt shall represent the spirit, if not the letter, of the law. We are now to consider the machinery and the process which the aspirant for citizenship confronts as he knocks at our wicket.

IV

DEVELOPMENT OF THE NATURALIZATION LAW

Naturalization, the legal ceremony by which the native or adopted citizen of one country acquires citizenship in another, is in its significance and essentials very ancient--it goes back to the blood transfusion and other primitive ceremonials by which those of other kin were admitted as brothers to full standing in family, clan, or tribal membership. It registers and effectuates two distinct things--a divorce and a new marriage, so to say. There are two parties to the twofold process: the petitioner, who on his own account renounces the old allegiance and professes his desire and his intention to assume the new; and the adopting government which, on its part, accepts the applicant and upon him confers the standing and privileges and imposes the responsibilities and obligations attaching to citizenship under its protection and authority. This is precisely the nature of the process through which must go every foreign-born person who becomes an active member of the United States.

OUR “CHARTER MEMBERS”

As in the case of other new organizations, we had at the beginning what might be called “Charter Members.” We were not fussy about it. There was no prejudice then against the newcomer--we “needed him in our business!” The Constitution of the United States in its inception took in as a matter of course everybody then resident here who by any color of law could be construed to be entitled to membership. Even the provision requiring native birth for the Presidency limited it only to one natural born, “or a citizen of the United States at the time of the adoption of this Constitution.”[41] Martin van Buren was actually the first President born an American citizen. The seven who preceded him all were born subjects of the British crown.

Prior to 1700, few immigrants who were not British subjects had sought homes in the American colonies; the few of other nationality found no difficulty in being accepted as fellow citizens with those who preceded them. For obvious reasons, the Colonial governments were liberal in granting civil rights to newcomers of almost every sort. It was absolutely vital to the preservation of the new civilization here that there should be an increasing number of men to assist in conquering the wilderness and in defending the fringe of settlements against attack. How could the pioneer nation have maintained itself, much less have advanced and spread westward until its feet were stopped by the Pacific, without these adventurous souls of every race?

So the sieve was of coarse mesh.

FIRST NATURALIZATION LAWS

Generally speaking, except where a colony had legislated independently in the matter, the British law was in effect. Under this, an alien might be naturalized by the Act of Parliament, or given partial rights by grant of the king, in “Letters of Denization.”

Prior to 1740, a number of naturalization laws were passed by Colonial legislatures. General laws were passed by New York and Pennsylvania in 1683, South Carolina in 1696, and Virginia somewhat later. The use of the private Act of Naturalization was very common, especially in Pennsylvania and New York. The general Act of Pennsylvania was in fact revoked by Queen Anne, and from that time until 1840 all naturalizations in that colony were by private or special legislation.

Probably the first naturalization of aliens in the New World was the collective acceptance of the Dutch inhabitants of New Amsterdam (New York) by the articles of capitulation in 1664, by which they with their territory passed under the British flag. Two years later Augustine Herman of Prague, with his family, was naturalized by Act of the Maryland Assembly. This appears to have been the first naturalization law enacted in America.

The rights conferred by all of these Colonial Acts were limited strictly to the colony in which each was passed. Political rights varied in the different colonies, chiefly according to voting qualifications in force in each. But since most of them provided for a property qualification, the permission to foreigners to own land usually carried with it the right of suffrage. However, in some of the colonies the naturalized citizen was not eligible to public office. For all practical purposes of social standing, the ownership of land sufficed, and since that could be passed down by inheritance, and it was always admitted that a child born on this soil was a citizen regardless of his racial descent, the restrictions were hardly irksome at that time.

In 1740 the English Parliament passed an Act for providing for naturalization in the American colonies[42] of “foreign Protestants.” Persons naturalized under this statute might enjoy all civil rights except that of holding certain offices. A residence of seven years was required, and certain oaths and rites were imposed, including partaking of the sacrament of the Holy Communion in accordance with the ritual of the Church of England. Quakers and Jews, however, were the subject of exemption; Quakers were permitted to affirm, rather than to swear, and Jews were permitted to omit the words, “on the faith of a Christian.” This Act remained the basic law of the American provinces until the Revolution, when all British statutes were, at least constructively, superseded by Acts of the Congress of the United States of America.[43]

Among the grievances recited against the government of George III was the treatment of this subject of naturalization. It is thus set forth in the Declaration of Independence:

He has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriation of Lands.

Under the Articles of Confederation, which served the new republic until the adoption of the Constitution, no specific action was taken by the Congress to provide for the naturalization, although certain provision was made for an oath of allegiance for office-holders, and to facilitate desertion from the British ranks by offers of land and of citizenship. After the Revolution a number of individual states enacted naturalization statutes: Massachusetts, 1783-89; Delaware, 1788; Maryland, 1779; New York, 1789; South Carolina, 1784; Virginia, 1779-85. These Acts generally provided very easy methods for the acquisition of citizenship--usually requiring only an oath of allegiance, without any specific length of residence; though Virginia required a formal declaration of intention to remain here, and South Carolina insisted upon a previous residence of at least one year.

EFFORTS TOWARD UNIFORMITY

The obvious and constant embarrassment arising from different requirements under diverse jurisdictions was recognized and discussed before the making of the Federal Constitution. James Madison, for example, in 1782, urged the necessity of a uniform practice. So general was the recognition of this need that the Constitutional Convention took it for granted, and almost without discussion adopted the provision which still stands, and under which all subsequent legislation has gained its authority:[44]

Congress shall have power ... to establish an uniform rule of naturalization....

And almost immediately (1790), President Washington having urged it in his message in January of that year, Congress enacted a general Naturalization Act.[45]

The considerable debate in Congress concerning this measure not only throws an interesting light upon the policies prevailing at that time, but shows that while the new government realized the importance of desirable immigration, there was full realization of the difficulty of so adjusting the process of naturalization as to facilitate this while at the same time protecting the essentials of the American spirit and institutions from the insidious influences feared from certain types of newcomers. The conflicting attitudes of the highly liberal Quakers in Pennsylvania and the austere Puritans of New England--visible in many ways in all the legislation of the early years in the contrasting jurisdictions of the northern Atlantic colonies, appears clearly in the debates, from which emerged the Act of 1790, whose essentials were as follows:

I. Naturalization to be conferred by any court of record.

II. A requirement of two years’ residence in the United States, and one year within the State.

III. Proof required of good moral character, and oath to support the Constitution of the United States.

This Act was repealed in 1795 by another[46] introducing the declaration of intention to become a citizen, and extending the period of required residence from two years to five. This Act has been the basis of our naturalization system ever since. Its main provisions were these:

I. A preliminary declaration of intention to become a citizen of the United States, to be made at least three years [the present law specifies two years] before final application for citizenship.

II. Naturalization jurisdiction was vested in any “supreme, superior, district or circuit court” of the states or of the territories northwest or south of the River Ohio, or a circuit or district court of the United States.

III. Five years’ residence in the United States, and one year’s residence in the state in which the application was made.

IV. An oath of allegiance.

Aliens then residing in the United States might be naturalized after _two_ years’ residence.

This Act was fathered by James Madison, then a member of Congress.

President Jefferson, in his first message to Congress, advocated a revision of the Naturalization Law, to the end that “the general character and capabilities of a citizen be safely communicated to everyone manifesting a bona fide purpose of embarking his life and fortunes permanently with us.”

Accordingly the Jeffersonian Congress of 1802 repealed the Act of 1795, and enacted one[47] which remained substantially in force for more than a century. Its provisions, in the main, were as follows:

I. Naturalization jurisdiction was vested in the supreme, superior, district and circuit courts (a district court meaning any court of record having common-law jurisdiction) in the states and territorial districts and in the circuit and district courts of the United States.

II. The Declaration of Intention was still required, with the three years’ interval before final application.

III. Five years’ residence in the United States and one in the State was still required.

IV. Oath of allegiance to the United States, with specific renunciation of former allegiance.

V. Proof of good moral character and attachment to the principles of the United States.

Under this Act the children of persons duly naturalized were, if resident in the United States, to be considered citizens, and those born elsewhere were to enjoy the same status, provided that the citizenship should not descend to children whose fathers never resided in the United States.

An Act passed in 1804 slightly modified the regulation in favor of aliens residing in the United States between 1798 and 1802, and provided also that in case a “declarant” should die before his naturalization had been consummated, his widow and minor children should be deemed citizens upon taking the prescribed oath.[48]

During the second war with England, in 1813, an Act was passed requiring the five years’ residence to be absolutely unbroken by any absence whatever from the United States, and prescribing penalties for forgery or sale of naturalization certificates.[49] Later in the same year another law was passed to permit the naturalization of alien enemies (then Englishmen) who had declared intention prior to June 18, 1812.[50] Another important amendment was made in 1816.[51]

In 1824, following a period of agitation for earlier naturalization, Congress passed an Act, the most important provision of which[52] reduced from three to two years the minimum interval between the declaration of intention and final naturalization. It is interesting to note that this agitation for more liberal conditions came, as might be expected, at the time of the initial influx of aliens to the Eastern cities, and the beginnings of the political exploitation of the “foreign vote.”

Further slight changes were made in 1828,[53] and after twenty years more, in 1848, Congress abolished the restriction of 1813 which forbade any absence whatever from the country during the five years’ period of “continuous residence.”[54] But during all of the period between 1820 and the Civil War there was an increasing “Native American” agitation for narrower, rather than more liberal, restrictions, even to the point of abolishing naturalization altogether. Innumerable bills were introduced reflecting this agitation; but, owing both to the increasing importance of the foreign-born element in politics, and to the underlying realization that the nation must have a constant accretion of population, no such legislation reached the statute books. The three minor amendments enacted during and immediately after the Civil War were designed to meet conditions arising out of the state of war.[55]

In 1876 the Act of 1802 was amended so that the declaration of intention could be made, as it is now, before the clerk of any of the courts having naturalization jurisdiction.[56] And in 1872 and 1894 provision was made for the easier naturalization of the United States soldiers, sailors, marines, and merchant seamen, about whose permanency of residence there was embarrassment.[57]

BARS UP AGAINST ALIEN ANARCHISTS

The assassination of President McKinley, in 1901, by a professed anarchist brought to a head the feeling against foreign ultra-radicals, and resulted in the enactment in 1903[58] of the restriction against the admission to this country of persons believing in the abolition of organized government or the removal of public officers by violence. This test is widely applied now by judges and by the Naturalization Service in the examination of applicants for citizenship.

VARIOUS PRESIDENTS DISCUSSED NATURALIZATION

The importance of the subject of the absorption of foreign-born persons into our life is reflected all through the records of the government; allusions to it may be found in a large proportion of the messages of the Presidents to Congress. John Adams found occasion to express abhorrence of “intrigues of foreign agents to alienate the affections of the Indians and to arouse them to acts of hostility.”

The liberal sentiments of Thomas Jefferson appeared in his early recommendation of a revision of the law requiring fourteen years’ residence: “Shall we refuse the refuge extended to our fathers,” said he, in substance, “to the unhappy fugitives from distress arriving in this land? Shall oppressed humanity find no asylum on this globe?” But at the same time he remarked that for admission to certain offices of trust, a residence should be required sufficient to develop character and an appreciation of the design of our institutions.

James Madison’s interest in the subject was exhibited throughout his administration, and especially in his activities on the floor of Congress.

President Buchanan insisted upon the full status for naturalized citizens.

Our Government is bound [said he] to protect the rights of our naturalized citizens everywhere to the same extent as though they had drawn their first breath in this country. We can recognize no distinction between our native and naturalized citizens.

Abraham Lincoln and Andrew Johnson touched upon the question of the French and Russian claims upon immigrants who came here merely to escape military service; Lincoln pointing out that there should be a time limit beyond which the United States would not attempt to protect persons who came here for that reason and then returned to their native countries claiming to be American citizens; Johnson, on the other hand, emphasizing the effect of naturalization in absolving the individual from all former allegiance. President Grant urged Congress to define the conditions of expatriation, and to regulate by law the status of children of aliens becoming naturalized, and that of American women marrying noncitizens. He also drew attention to the growing evil of fraudulent naturalization, and urged the establishment of a system of uniform certificates and records.

President Arthur also called for a central bureau of registry, and for a general revision of the naturalization law, pointing out that much of it now had only historical interest, that the provisions regarding children of naturalized parents were ambiguous, and that the constitutional authority to establish “an uniform rule” called for a clear definition of the status of “persons born within the United States subject to a foreign power, and minor children of fathers who have declared their intention but have failed to perfect their naturalization.”

President Cleveland devoted a good deal of attention to the subject. He, too, emphasized the need of centralized Federal control over the records, and repeatedly called for a general revision of the law, insisting that the “privilege and franchise of American citizenship” should be granted with scrupulous care. He gave warning against “the easy and unguarded manner in which certificates of naturalization can now be obtained,” and the growth of a class of persons who availed themselves of it for political purposes.

Benjamin Harrison emphasized the need of an investigation of the moral character of the applicant for citizenship, to make more certain the existence of a “good disposition toward our government”; calling also for a more particular system of court hearings, with proper opportunity for representatives of the government to appear. He declared that “avowed enemies of social order” should be denied not only citizenship, but even domicile here. He also adverted to the evils of fraudulent naturalization.

DEFINITE REFORM AT LAST

It was the growing realization of this general condition, of the notorious ease with which naturalization could be acquired; the wholesale issue and sale of fraudulent certificates; the debauching of elections through the manipulation of the “foreign vote,” and the general cheapening of the franchise, that brought the subject to a head. It was common knowledge that these frauds were prevalent wherever there were large numbers of foreign-born people, and that both of the great political parties vied with each other in exhausting ingenuity to devise methods for the exploitation of the alien population. Which party excelled in the business depended almost entirely upon which was dominant in any particular community. The situation was a scandal in any event, and the sober sentiment of the nation realized increasingly that something must be done about it.

NATURALIZATION COMMISSION APPOINTED

It was not until the administration of President Roosevelt, however, that definite steps were taken. During the years 1903-05 the Department of Justice became very active in unearthing and prosecuting violations of the naturalization laws. Hundreds of cases of fraudulent naturalization were discovered, and nearly seven hundred convictions were obtained. A special examiner of the Department of Justice, A. C. van Deusen, made an extensive report on the subject in 1905.[59]

By Executive Order, March 1, 1905, President Roosevelt created a special commission, consisting of Milton D. Purdy, Assistant Attorney-General representing the Department of Justice, chairman; Gaillard Hung, chief of the Bureau of Citizenship in the Department of State, representing that department, and Richard K. Campbell, attorney for the Immigration Bureau in the Department of Commerce and Labor (now Commissioner of Naturalization in the Department of Labor), “to investigate and report on the subject of naturalization in the United States,” and to recommend changes in the naturalization laws.[60] The commission’s report is invaluable in any study of the subject of Naturalization Law and Procedure.

The average citizen scarcely realizes how completely the Naturalization Law of 1906, which was the fruit of the labors of this commission, has revolutionized the whole business. Whatever may be the defects of the law, or of the practice which has grown up under it, they are in the main due to “leaning over backward” in the honest effort to clean and keep clean the flow of new blood into our citizenship. Generally speaking, it is to be said that the enforcement of this statute has abolished most of the evils of fraud and exploitation which before that were a scandal and a menace in American political life.

By this act the Naturalization Service was established and an absolutely new era initiated. As Mr. Campbell, who forthwith became chief of the Division of Naturalization in the Bureau of Immigration,[61] said in his report for the fiscal year ending June 30, 1908, the process of becoming naturalized as an American citizen