Chapter XIII: Section 3: That all certificates of naturalization granted by (2)

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

CEREMONIES OF INITIATION

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

PROGRAM

HON. HENRY F. NICKERSON, Presiding

Music _Orchestra_

Singing--“America” _Audience_

Address of Welcome _Hon. Henry F. Nickerson_

Response by a naturalized citizen _James B. Kerr_

Selection _Orchestra_

Address _Rev. Everett C. Herrick_

Pledge of Allegiance--_Led by Boy Scouts_:

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

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

Prayer _Rev. Vincent Marchildon_

Singing--“Star-spangled Banner” _Audience_

Informal Reception

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

PROGRAM

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

JOHN W. BEATTIE, Supervisor of Music, Song Leader

Song--“America” _Audience_

Address _Christian Gallmeyer, Mayor of Grand Rapids_

Folk Games _Pupils Sibley School_
Directed by _Miss Ila Krumheuer_

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

Songs _Audience_

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

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

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

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

Songs _Audience_

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

“Star-Spangled Banner” _Audience_

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

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

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

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

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

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

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

VI

PERSONAL EQUATION IN NATURALIZATION

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

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

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

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

A FUNCTION OF LOCAL COURTS

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

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

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

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

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

“PERSONAL EQUATION” OF THE JUDGES

According to the report of the Commissioner of Naturalization for the fiscal year ending June 30, 1919, a total of 2,306 courts of all these kinds have exercised naturalization jurisdiction during that year, and a list of judges, compiled by the Americanization Study from information obtained from the Naturalization Service and from other sources, shows that about 1,450 individual judges, Federal, state, and local, preside in these courts. A grand total of approximately 100,000 cases a year--the figure roughly used in estimating the naturalization business of recent years--would give to each judge an average of about 70 cases a year; but since in the great majority of rural districts this business is exceedingly small--in some cases not more than two or three in a year--and since the bulk of it is in the large cities and in particular regions, such as the mining districts of Pennsylvania, West Virginia, Illinois, etc., certain courts have a very large number of cases, in some instances running into thousands.

In the last analysis, the individual judge is, subject to certain noteworthy restrictions and interferences, the final arbiter in every case. Upon his “personal equation,” his opinions and prejudices, to a great extent depends the reception which the petitioner experiences when he comes into court for the final stage of his initiation as an American citizen.

Obviously, then, it becomes important to ascertain the general attitude of the naturalizing judges throughout the country toward the law as it stands, toward the naturalization process in general, toward the petitioner for citizenship. In the last analysis the judge is a human being, moved by human motives, warped by human prejudices, subject to the same personal, local, and general influences that condition the emotions and actions of the rest of us toward our fellow men.

With this in view, the Americanization Study addressed a questionnaire to each of the approximately 1,400 judges throughout the country entitled[85] to jurisdiction in naturalization proceedings in the 2,300 courts over which from time to time they preside for this purpose. Somewhat less than one-third (423, or about 31 per cent) of the judges thus addressed replied or were accounted for in some manner more or less complete. Any exact or conclusive tabulation of the replies would be impracticable because the questions called for expression of opinions rather than categorical or statistical answers; a large proportion of the judges left one or more of the questions unanswered or qualified their answers in such a way as to preclude the possibility of precise classification. Nevertheless, the results as a whole are highly significant and informing--almost as much so in their negative aspects as in the definite replies evoked.

For example, it is interesting to observe the difference not only in the ratio of replies received to the number of judges questioned, but in the character of the replies as regards general strictness or liberality of attitude, in the various parts of the country. The first point is to be seen in the following list of naturalization districts, with the approximate number of judges in each and the number of them heard from:

TABLE IV

NUMBER OF REPLIES FROM JUDGES IN EACH DISTRICT

_Boston District._--Comprising the states of Maine, New Hampshire,
Vermont, Massachusetts, Connecticut, Rhode Island.

========================================
STATE | JUDGES | REPLIES FROM
---------------+----------+-------------
Maine | 9 | 3
New Hampshire | 6 | 1
Vermont | 7 | 4
Massachusetts | 29 | 3
Connecticut | 18 | 4
Rhode Island | 8 | 2
| -- | --
Total | 77 | 17
========================================

_New York District._--Comprising Northern, Eastern, and Southern
New York, and Hudson County, New Jersey.

========================================
STATE | JUDGES | REPLIES FROM
---------------+----------+-------------
New York | 74 | 19
New Jersey | 3 | 0
| -- | --
Total | 77 | 19
========================================

_Philadelphia District._--Comprising the Eastern and Middle
Districts, Pennsylvania, Delaware, and New Jersey (except Hudson
County).

========================================
STATE | JUDGES | REPLIES FROM
---------------+----------+-------------
Pennsylvania | 46 | 11
Delaware | 4 | 2
New Jersey | 24 | 10
| -- | --
Total | 74 | 23
========================================

_Pittsburgh District._--Comprising Western Pennsylvania, Western
New York, West Virginia, Ohio, Maryland (counties of Allegheny,
Frederick, Garrett, and Washington), Kentucky (counties of
Campbell and Kenton).

========================================
STATE | JUDGES | REPLIES FROM
---------------+----------+-------------
Pennsylvania | 29 | 7
Kentucky | 1 | 0
Maryland | 4 | 0
New York | 22 | 6
Ohio | 81 | 22
West Virginia | 27 | 9
| -- | --
Total | 164 | 44
========================================

_Washington District._--Comprising the District of Columbia,
Alabama, Florida, Georgia, Kentucky (except the counties of
Campbell, Jefferson, and Kenton), Louisiana, Maryland (except
the counties of Allegheny, Frederick, Garrett, and Washington),
Mississippi, North Carolina, Porto Rico, South Carolina,
Tennessee (except Shelby County), Texas, and Virginia.

========================================
STATE | JUDGES | REPLIES FROM
---------------+----------+-------------
District of | |
Columbia | 1 | 0
Alabama | 7 | 2
Florida | 12 | 3
Georgia | 10 | 0
Kentucky | 12 | 2
Louisiana | 18 | 2
Maryland | 14 | 2
Mississippi | 13 | 1
North Carolina | 10 | 1
Porto Rico | 1 | 0
South Carolina | 6 | 0
Tennessee | 9 | 3
Texas | 25 | 8
Virginia | 9 | 1
City of | |
Baltimore | 9 | 1
| -- | --
Total | 157 | 29
========================================

_St. Louis District._--Comprising Arkansas, Oklahoma, Missouri,
Iowa, Nebraska, Kansas, Shelby County, Tennessee, and Southern
Illinois.

========================================
STATE | JUDGES | REPLIES FROM
---------------+----------+-------------
Arkansas | 35 | 9
Illinois | 20 | 6
Iowa | 62 | 27
Kansas | 39 | 14
Nebraska | 34 | 11
Missouri | 43 | 11
Oklahoma | 34 | 11
| -- | --
Total | 267 | 89
========================================

_Chicago District._--Comprising Northern Illinois, Indiana,
Southern Wisconsin, Jefferson County, Kentucky, Southern
Peninsula of Michigan, and Mackinac County, Michigan.

========================================
STATE | JUDGES | REPLIES FROM
---------------+----------+-------------
Illinois | 87 | 20
Indiana | 70 | 20
Michigan | 51 | 18
Wisconsin | 15 | 5
| -- | --
Total | 223 | 63
========================================

_St. Paul District._--Comprising Minnesota, North Dakota, South
Dakota, Northern Wisconsin, Northern Peninsula of Michigan
(except Mackinac County).

========================================
STATE | JUDGES | REPLIES FROM
---------------+----------+-------------
Minnesota | 48 | 20
Michigan | 4 | 3
North Dakota | 13 | 6
South Dakota | 13 | 5
Wisconsin | 11 | 7
| -- | --
Total | 89 | 41
========================================

_Denver District._--Comprising Colorado, New Mexico, Wyoming,
Utah, and the counties of Bannock, Bear Lake, Bingham, Bonneville,
Custer, Franklin, Fremont, Jefferson, Lemhi, Madison, Oneida, and
Power, Idaho.

========================================
STATE | JUDGES | REPLIES FROM
---------------+----------+-------------
Colorado | 17 | 7
New Mexico | 9 | 5
Utah | 9 | 3
Wyoming | 8 | 2
Idaho | 5 | 3
| -- | --
Total | 48 | 20
========================================

_San Francisco District._--Comprising California, Arizona, and
Nevada.

========================================
STATE | JUDGES | REPLIES FROM
---------------+----------+-------------
California | 95 | 34
Arizona | 16 | 8
Nevada | 12 | 2
| --- | --
Total | 123 | 44
========================================

_Seattle District._--Comprising Washington, Oregon, Montana, and
Idaho (except as assigned to Denver).

========================================
STATE | JUDGES | REPLIES FROM
---------------+----------+-------------
Washington | 47 | 15
Oregon | 27 | 11
Montana | 26 | 7
Idaho | 11 | 1
| --- | --
Total | 111 | 34
========================================

RECAPITULATION

-----------------------------------------
Total number of judges addressed 1,410
Replies received from 423
-----------------------------------------

PERCENTAGE OF REPLIES

------------------------------
St. Paul District 46.0
Denver District 41.7
San Francisco District 37.4
St. Louis District 33.3
Philadelphia District 31.0
Seattle District 30.6
Chicago District 28.2
Pittsburgh District 26.8
New York District 24.6
Boston District 22.0
Washington District 18.5
Average 30.9
==============================

It would be perilous to generalize from these figures as to the interest of judges in various parts of the country in the study of the problems involved in naturalization. Silence does not necessarily imply indifference; moreover, the courts in large centers of population are overburdened with ordinary litigation, and it is not surprising that there should be procrastination or entire failure in responding to a more or less elaborate questionnaire. Nevertheless, there is food for reflection in the fact that the lowest percentages of exhibited interest are in the East and South--the highest west of the Mississippi River.

The judges who did reply to the questionnaire represent on the whole both wide experience and substantial interest in the subject. Of those who state the number of naturalization cases coming before them in an average year, more than 100 passed upon 100 cases or more--not including the very large numbers passed by a few in acceptance of soldiers under the “military naturalization law”; at least as many more had from 50 to 100 cases a year (160 between 10 and 100); only 67 reported less than 10. Upward of 400 judges, each answering for himself, undoubtedly afford a reasonably reliable cross-section of the opinion of the naturalizing agency of the government.

BIRD’S-EYE VIEW OF THE QUESTIONNAIRE

The questions which were asked, and the general nature of the replies to each, give a bird’s-eye view of the principal phases of the problem, and a fair notion of the degree to which the judges may be regarded as liberal or conservative and alive to the situation. The questions and the figures given after each speak for themselves:

_Do you regard the present requirements for naturalization as too
strict, or not strict enough?_

Answers: About right now 185
Too strict 26
Not strict enough 97
Noncommittal 20
---
328

_What is your policy as to “continuous residence”--how long, if
at all, do you permit a petitioner to have been absent from this
country during the five years immediately preceding his petition?_

The answers to this question may be roughly classified to show the
general attitude of the judge, as follows:

No absence whatever permitted 72
A fixed time limit (three to six months
very general) 32
“Entirely a question of _intention_” 210
Noncommittal 26
---
340

_How frequently do you require the petitioner’s witnesses actually
to have seen him during the five years’ period?_

Very strict (“daily”; “constantly, as a
neighbor”; “I insist upon a real personal
intimacy,” etc.) 53
Reasonable (“enough to satisfy me as
to the petitioner’s character and
residence”; “a bona-fide acquaintance,”
etc.) 287
---
340

_Do you require applicants for naturalization to prove that they
can read as well as speak the English language? The law does not
require ability to read._

Yes 179
No 155
---
334

_Would you favor amending the law so as to permit the substitution
of a witness where, in evident good faith, one of the original two
appears, in the judgment of the court, to be honestly mistaken in
believing that he has adequately known the petitioner for the whole
five years? (Under the present practice the petition is denied, and
a new one must be filed and a new fee paid.)_

Yes (“The present practice imposes a
great hardship and injustice”) 311
No 36
Noncommittal 6
---
353

_Would you favor amendment of the law so as to mitigate the present
requirement that two, only two, and the same two, witnesses must
swear to personal knowledge of all of the petitioner’s residence
up to five years, within the state in which the petition was
filed, and thus permit him to cover a part of this residence by
depositions, or additional witnesses, when witnesses possessing the
qualifications now required cannot be procured?_

Yes 289
No 34
Noncommittal 11
---
334

_Would you write into the Naturalization Law a specific educational
or intellectual test for admission to citizenship?_

Yes 167
No 157
Noncommittal 25
---
359

_Do you favor a uniform required course of instruction for
applicants for citizenship?_

Yes 208
No 134
Noncommittal 33
---
375

_Would you favor acceptance, as prima-facie evidence of
intellectual fitness, of a suitable certificate from schools or
class, of the successful completion of such a course?_

Yes (“I would”; “I do accept school
certificates now,” etc.) 209
No (“The judge must satisfy himself
by his own inquiry”; “it is character,
not learning, that counts”;
“too many Socialists are teaching
school,” etc.) 110
Noncommittal 31
---
350

_Would you favor the abolition of the present Declaration of
Intention (first papers)? If not, what good purpose do you think it
serves?_

Yes (“It serves no good purpose”) 82
No (“It is an essential of the proceeding”;
“it serves notice to all concerned”;
“it tends to keep the applicant
in mind of his desire to be a
citizen,” etc.) 241
Noncommittal 33
---
356

_What have you observed to be the special difficulties in
the way of desirable foreigners, hindering them from seeking
naturalization?_

Know of none deterring _desirable_ foreigners 107
Ignorance and indifference 104
Deterring attitude of natives 60
Technicalities in law and examinations 42
No opinions 58
---
371

_Would you favor legislation to permit the naturalization of a
married woman in her own name, if personally acceptable, regardless
of the alienage of her husband, or his failure to obtain or refusal
to seek naturalization?_

Yes 204
No 104
Noncommittal 25
---
333

_Would you favor reserving to a native-born American woman, if she
desires it, the American citizenship which under the present law
she sacrifices by marriage to a foreigner?_

Yes 220
No 127
Noncommittal 17
---
364

_Would you favor modification of the law so as to admit to
citizenship any individual personally fit, regardless of race or
color?_

Yes 100
No 225
Noncommittal 34
---
359

_Do you believe that the admission of large numbers of aliens
under the Act of May 9, 1918, solely on the ground of military or
naval service, without the usual requirements of residence, etc.,
operated on the whole to the advantage of the United States?_

Yes 111
No 113
Doubtful 28
No opinion 58
---
310

_Would you favor applying the same standards and tests to all
prospective voters, native and foreign born alike, before endowing
them with the suffrage; with suitable ceremonies of induction into
“active voting membership,” so to speak, in our society?_

Yes 180
No 102
Noncommittal 44
---
326

_Would you favor removal of naturalization from all state courts,
so as to make it exclusively a function of the Federal courts?_

Yes 112
No 208
---
320

_Would you favor placing naturalization in the hands of traveling
naturalization commissioners, appointed by and responsible to the
courts?_

Yes 76
No 202
---
278

_Would you favor making naturalization a purely administrative
function, exercised by the Naturalization Bureau, or other
appropriate organ of the Department of Labor, or other department?_

Yes 48
No 222
---
270

GENERAL TREND OF JUDGES’ OPINIONS

The returns of this questionnaire, from a sufficiently representative cross-section of the naturalizing agency of the government, self-selected by the operation of substantial personal interest in the problems embodied in the situation (as evidenced by taking the pains to express opinion), make clear the opinion of the judges on several important points, and may be summarized substantially as follows:

(1) The judges on the whole believe that the present law requires no drastic amendment in principle; they believe that the naturalizing function should remain with the courts; should not be confined to the Federal courts, and should be exercised in the open courtrooms as it is at present. And this, notwithstanding the fact that the function adds materially to the burden of ordinary litigation.

(2) In the matter of attitude toward both petitioners and their witnesses, the judges are in the main liberal and humane, judging of absence during the five years’ probationary period chiefly with regard to the occasion for the absence and the continuing _intention_ to become an American citizen, and the witnesses’ knowledge of the petitioner by the practical facts in the case.

(3) An overwhelming majority of the judges favor mitigation of the technicalities now surrounding the proceeding by permitting the substitution of witnesses and the supplying of evidence to convince the court, by means of depositions covering portions of the period of residence within the state in which the petition is filed. It may be added that very many of the judges would accept testimony of the same character as that which they would receive in any other sort of proceeding before the court to establish any fact.

(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!”