Chapter XII: Section 3: That all certificates of naturalization granted by (1)

courts of competent jurisdiction prior to December 31, 1918, upon
petitions for naturalization filed prior to January 31, 1918,
upon declaration of intention filed prior to September, 27, 1906,
are hereby declared to be valid in so far as the declaration of
intention is concerned, but shall not be by this Act further
validated or legalized.

THE CERTIFICATE OF LAWFUL ENTRY

Assuming, now, that our alien is of the proper racial descent, the accepted age, and that his declaration of intention will pass muster; that he has lived in the United States for at least two years since the declaration was filed, and at least three years besides that--a total of not less than five years in all, including the final fifth year in the state--what must he do, and what may be done to him, when he comes up at last with his request for admission to Active Membership?

If he arrived in this country since June 29, 1906, he must produce a Certificate of Arrival. In theory, at least, all arriving aliens are registered at the port of entry by the Immigration Service of the Department of Labor. Under existing law they cannot get in at all if they are of certain excluded races and classes; if they are under contract to get a particular job; if they are insane or afflicted with certain diseases; if they are recognizable as anarchists, polygamists (or believers in either anarchy or polygamy), criminals, or, in the opinion of the immigration authorities, likely to become a public charge--a burden upon the community. They must, with certain exceptions for age and family relationship, be able to read and write in some language.

Aliens may properly enter the United States only through some officially designated port of entry, designated by the Commissioner of Immigration, if an alien enters elsewhere along our enormous border line he is deemed to be “unlawfully present,” is subject to deportation, and when he tries to become a citizen he must give a very good excuse for having “climbed up some other way.” A good many Canadians and Mexicans have found very embarrassing, eventually, the fact of their ignorance or evasion of this requirement.

The Act of Congress, approved June 29, 1906, went into effect in most respects on the 27th of September following, but this provision was to take effect immediately:

That it shall be the duty of the Bureau of Immigration to provide,
for use at the various immigration stations throughout the United
States, books of record, wherein the Commissioner of Immigration
shall cause an entry to be made in the case of each alien arriving
in the United States from and after the passage of this Act of the
name, age, occupation, ... and the date of arrival of said alien,
etc.

Unfortunately for the aliens subsequently embarrassed by the fact, the books for record of entries were not promptly installed, and in some instances since they were installed the immigration officials at the ports of entry have not always been scrupulous in the making of the required entries.

No certificate is given to the alien at the time of his arrival, even if he is properly registered; nothing of the sort is required of him anywhere; he does not have to show it when he makes his declaration of intention to become a citizen, nor at any other time or for any other purpose--until after he has been here at least five years and comes to the point of filing his petition for final naturalization. Then he must have it--unless he arrived before June 29th, 1906; in that event it is not required of him.

He is not to go for it to the Immigration Service. He must get it in the most roundabout fashion. He must address a written application, through the clerk of the court in which his petition for naturalization is to be filed, to the Commissioner of Naturalization, who in turn requests it of the Immigration Service. The Immigration Service, if it can find the original entry (and sometimes--quite frequently in fact--it cannot), sends the certificate to the Commissioner of Naturalization, who sends it to the clerk of the court, at the same time notifying the alien that now he may proceed to file his petition.

But what if the arrival entry cannot be found? What if the alien cannot remember the name of the vessel, or other important facts relating to his entry, and thus give the necessary clews for the search? What if it was his misfortune to arrive at a port after the law took effect and before the registry system was in operation? Both the Immigration and the Naturalization Service take a good deal of pains to care for such situations; but frequently without success. All this involves delay, not only vexatious and discouraging, but likely to prove fatal in the case of an alien whose declaration is at the edge of expiration. Not infrequently an application for certificate of arrival is bandied back and forth between the two Bureaus for months.

There was a case in 1919 in which the alien described himself as having arrived on a certain date and vessel at New York; the immigration records showed no such arrival, and, what was worse, no such vessel entering New York at that time. After long delay it turned out that the alien did arrive on that date and vessel, but at _Boston_, whence, upon admission, he came by a domestic coastwise vessel from Boston to New York. Many other cases are by no means so simple.

A petition accepted for filing without the requisite certificate of arrival is regarded as incomplete, and may not be completed subsequently by attachment of the certificate, but must be marked “spoiled”; the four dollars paid as fee may be returned to the petitioner by the clerk, or can be applied to the filing of a new and sufficient petition. It has been the practice of the Bureau of Naturalization, after it appears impossible to find record of the applicant’s admission to the country, to refer him to the nearest immigration inspector for what is known as a _nunc pro tunc_ inspection, for the purpose of satisfying the inspector that the alien should not be deported as “unlawfully present.” If the inspector is satisfied, he issues what is known as a “provisional certificate of arrival,” whose acceptance as sufficient for purposes of naturalization is subject to the discretion of the court. This would appear a reasonable way out; but in the case of petitioners living a very long distance from the office of an immigration inspector, it involves an extra, and perhaps prohibitively expensive, journey to the distant city for that purpose alone, and this difficulty has in fact been to some extent relieved by permission to handle such cases by correspondence and affidavits.

THE VEXATIOUS QUESTION OF NAMES

Another obstruction goes to the question of our treatment of the foreign-born laborer in industry--especially if he bear what we choose to regard as a “queer” name, difficult for us to spell or pronounce. The courts have, properly, no doubt, no patience with assumed names--particularly in a case where the alien cannot remember the name under which he entered the country. But it is a very common practice, in concerns employing a large number of immigrants, for the minor officials of the company, superintendents and foremen, to attach a name to a job, and insist upon calling the man who occupies it, “Mike Murphy,” or what not else, because that was the name of the first incumbent, and it is easier to pronounce than “Bahaoud,” “Behrensmayer,” or “Przybylski.” This, and the even more common practice of calling a man by a number, rather than a name, results in a vast deal of confusion, in a substantial discouragement of self-respect, and in the ultimate establishment of the neighborhood identity of a polysyllabic Greek or Armenian, perhaps, with a fine old Irish name. This will not do in the naturalization court. The petitioner must come in under at least the same name that he bore when he entered the country, and there must be no suspicion as to its not being his own.

But he does not have to keep that name. It is prescribed as lawful for the court in its discretion, “at the time and as a part of the naturalization of any aliens, ... upon the petition of such alien, to make a decree changing the name of said alien.” The fact of which the court must be convinced is that the petitioner is not attempting to conceal his real identity for the purpose of escaping payment of just debts or punishment for crime. Many aliens do thus change their names, and there have been cases in which the judge virtually compelled them to do so.

A naturalization judge said to the writer:

I have heard of a high-handed old judge, somewhere in the
Northwest, who was in the habit of “suggesting” to every alien who
came before him with a complicated mouthful of name that he change
it to “Abraham Lincoln,” “Benjamin Franklin,” “George Washington,”
or “Grover Cleveland.” No doubt you could find many a Pole or Swede
naturalized as “Thomas Jefferson” or “Alexander Hamilton,” whose
father, living in the same town, was known as “Konrad Kowalewski,”
or “Ole Johanssen.”

Each nationality has in this country name-complications of this character peculiarly its own. The Swedes, for an example, have a habit of taking for their own surname the Christian name of a favorite aunt, uncle, or other relative, upon reaching the age of twenty-one years. Sven Svensen--which means “Sven, the son of Sven”--may undertake to compliment his uncle Olaf by calling himself Sven Olafsen. Suppose he came to this country under the name of Sven Svensen, before he was eighteen; but for several years before filing his declaration came to be known to everybody--including himself--as Sven Olafsen, and regarded his old name as a “childish thing” of no consequence to anybody. He applies as Sven Olafsen for his certificate of arrival, the immigration and naturalization bureaus have great difficulty in finding it, and when it does come along it is in the name of Sven Svensen. Often names are adopted in affectionate memory of the town from which the alien comes. Many Italians, for convenience, drop off a couple of syllables of awkwardly long names. Among the Greeks a typical case would be that of one, “Harris,” whose old-country name was Harralabopoulos.

Another kind of complication appears in the case of an alien whose true name was Isaac Brody; but he came on a steamship ticket issued to, and in the name of, his uncle, Isaac Boovris, and was recorded under that name by the immigration authorities. When he filed his declaration of intention he was advised to file under the name Boovris, to facilitate his certificate of arrival when that should be required. When he filed his final petition, after living and doing business for several years in this country under his true name of Brody, he asked to be naturalized under that name. The court refused, requiring him to file a new declaration as Isaac Brody and wait two years longer, calling attention to the penal statute which makes it an offense to apply for naturalization under an assumed or fictitious name; remarking that the court might have changed the name or amended the petition “if the error in the original declaration had been clerical, or had been innocent.”[77]

A Pennsylvania court said in the case of one Wicenty Pilipos, who after arrival informally changed his name to William Phillips:

We may concede that any person may change his name, and be
naturalized under his new name; yet, if he does so, he must
petition the court for that purpose, so that the record will show
the whole transaction, and identify him as the person who has
discarded his original name, under which he landed in this country.
This is especially necessary to prevent any other person from
perpetrating a fraud, by being naturalized under the discarded
name.[78]

THE PETITION FOR NATURALIZATION

There are other technicalities with which the alien occasionally collides--such, for example, as the question of jurisdiction where there is a difference of definition in the term “judicial district,” or where boundaries may conflict between states, counties, or other distinct municipalities, with reference to the alien’s place of residence; or where the court to which he could naturally and conveniently repair by the shortest line of travel is in another jurisdiction, and he and his witnesses must journey perhaps even hundreds of miles to the court to which the letter of the law compels him to go. Such cases are numerous, but comparatively uncommon. Let us assume that he has reached the right court, has successfully unearthed, through the clerk, the Naturalization Bureau and the Immigration Service, his proper certificate of arrival, and has a valid declaration of intention. What next?

In large cities or other places reasonably convenient in respect of distance, the clerk is likely, as the Commissioner of Naturalization says in his report already quoted, to send the alien to the office of the Naturalization Service; there is filled out the “Facts Form,” as it is called, on which the final petition for naturalization is to be based. The petitioner is closely interrogated as to his general eligibility, and the principal business is under way. If the naturalization office is far distant, the petition is filled out by or in the presence of the clerk.

As required by the law quoted at the beginning of this chapter, the petition must set forth the full name, residence, occupation; date and place of birth; port of emigration; name of vessel, if any; port of arrival; date and court of declaration of intention; whether married, single, or widowed; wife’s name, nativity, and present residence; number, names, birthplaces, and residences of minor children; assurances that the applicant is not a practicing or believing anarchist or polygamist; intention to renounce former national allegiance and make permanent residence in the United States; attachment to the principles of the Constitution; ability to speak the English language; dates upon which began residence in the United States and in this state or territory; assertion that this is his first petition for citizenship, or, if a former petition was denied, the reasons for denial and the fact that these reasons have since been cured or removed.

In addition there must be the affidavit of two witnesses (each of whom must swear that he is himself a citizen of the United States), who must declare on his oath that he knows the petitioner to have been a resident of the United States at least since a certain specified date five years ago, and of the particular state at least since a certain specified date not less than a year ago; and that he personally knows the petitioner to be a person of good moral character, attached to the principles of the Constitution, well disposed toward the good order and happiness of the same, and generally qualified in every way to be admitted as a citizen of the United States.

To the petition _at the time of filing_ (that is rigidly required by the law and the decisions of many courts) must be physically attached the declaration of intention made at least two years before, and the certificate of arrival.

For filing the declaration of intention the alien will have paid to the clerk a fee of one dollar; upon filing his final petition he has to pay another fee of four dollars. There are strict penal provisions in the law for the punishment of clerks who charge or collect any more. Under the law, one-half of each fee is retained by the clerk, ostensibly for the purpose of reimbursing him for such additional clerical assistance as the naturalization business may necessitate, but not always used for that purpose. This subject is discussed elsewhere.

The petitioner, with certain exceptions noted below, must sign his petition in his own handwriting. It is, however, usually permitted him to sign it by “his mark,” properly witnessed, and even this was not required of those who filed their declarations of intention before the passage of the Act; but lapse of time has made that no longer a practical exception. It has usually been held that a signature, even in another language, such as Arabic, is sufficient. There has often been controversy as to whether the extraordinary arrangement of marks constructed by the petitioner is in fact a signature, the author insisting that he has achieved one when it is utterly illegible to both judge and naturalization examiner. In this, as in a host of other details, the fate of the petitioner hangs upon the intelligence and humanity of the judge, who has to choose between a strict insistence upon the technicality and a more generous adjudication--in a case, for example, in which a poor old deaf woman homesteader might lose all she has in the world, simply because he cannot see an intelligible “signature” in the conglomeration of hieroglyphics which she intends to represent her name.

The law requires the petitioner to state the name, nativity, and residence of his wife, if any, and each of his minor children. The wife, if she herself can lawfully be naturalized, becomes _ipso facto_ a citizen of this country by virtue of the naturalization of her husband. It is the practice of many naturalizing courts to decline to admit to citizenship men whose wives are still in the old country, seeing danger in conferring the status upon women who may never come to the United States, or who, coming, may turn out to be undesirable.

The petition must disavow belief in the so-called principles of anarchism; under the law no one can be naturalized who himself believes in or teaches or belongs to any organization or groups believing in or teaching “the duty, necessity, or propriety” of abolishing organized government, or “the lawful assaulting or killing of any officers, either of individuals or officers generally, of the government of the United States, or of any other organized government, because of his or their official character.” Some judges of naturalizing courts recognize little distinction between “anarchy” and “Socialism.” The United States Circuit Court of Appeals, however, was more discriminating, reversing the naturalizing court in the somewhat famous case of Leonard Olsen at Seattle, who was rejected, ostensibly, on the ground that he was not “attached to the principles of the Constitution,” but really because he avowed himself a Socialist. There had been a somewhat similar case in Texas, in 1891, but the Olsen decision settled the question of the lawfulness of Socialist views as affecting naturalization.[79]

Both the declaration of intention and the petition for naturalization are made out in duplicate; the original becomes a part of the record of the court in the clerk’s office; the duplicate is sent to the Naturalization Bureau at Washington.

NINETY DAYS’ INTERVAL BEFORE HEARING

Notice of each petition must be posted in a public and conspicuous place in the office of the clerk for at least ninety days before the hearing is had in open court. The Naturalization Bureau will have been informed directly by the clerk; the purpose of the posting is, of course, to give the public notice, so that anyone who desires to do so may appear with objections. In actual effect, the posting is without much value, because the public does not visit the clerk’s office except upon business of its own, and there is no other publication of the petition, save in such rare cases as local newspapers make it a matter of news. It may be injurious to the petitioner, because a good many hearings have been postponed simply because the clerk forgot to post the notice at all!

THE FINAL HEARING IN COURT

Petitions may be heard only upon stated days, fixed by rule of the court, so that the government and the public may attend the open hearings which are required by the law. This works smoothly and well enough in the great cities, where most naturalizations take place; but there are districts, in sparsely settled regions, where there is but one term of the court in a year; which, in practice, means that the judge cannot be sure of being at any given point on any days determinable in advance, except the opening day. In such cases a great many courts will have but one hearing period in a year--usually on the first, and perhaps the second, day of the term. Two hardships may arise from such a situation; the alien and his witnesses may be uncertain as to the length of time they must wait after a long journey to the county seat, and if the clerk is careless and fails to notify the petitioners that their cases are to be heard (a thing which happens all too often) the judge and examiner are on hand, but no one appears to be naturalized, and another year is lost before the cases can be disposed of. That this can be a matter of very serious import to the alien may be illustrated by the fact that a group of Poles were classed as “nonresident aliens,” and subjected to the very heavy income tax collected of such, simply because the clerk of the court in which their petitions for naturalization were pending failed to notify them of the hearing day.

MUST “SPEAK” THE ENGLISH LANGUAGE

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

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

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

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

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

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

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

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

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

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

ATTACHED TO THE CONSTITUTION

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

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

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

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

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

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

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

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

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

“Mist’ Wilson.”

“Who is the Vice-President?”

“Mist’ Marsh’.”

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

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

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

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

IN THE MATTER OF “CONTINUOUS RESIDENCE”

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

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

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

THE ABSURDITY OF THE “INCOMPETENT WITNESS”

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

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

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

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

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

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

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

JUDGES DENOUNCE THE ABSURDITY

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

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

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

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

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

Says one judge:

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

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

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

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

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

Nevertheless, it is to be presumed that the Bureau of Naturalization did approve (since the proposal was embodied in the same bill containing one of its attempts to secure a notable extension of its powers)[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

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