John Palmer Gavit

The one thing that emerges most clearly in the results of this or any other candid study of the naturalization and political activity of the foreign-born citizen of the United States is that admission to active membership in our political society should be based upon the personal qualifications of the individual.

No sound basis is disclosed for discrimination on the ground of race or color, religious beliefs or political predilection. Even the statutory bar against belief in anarchism or polygamy is obviously ineffectual, because the anarchist theory per se involves, if not virtual atheism, at least repudiation of government and a disbelief in the sanctity of an oath. And a declaration of disbelief in polygamy, so far as it may be assumed to imply anything concerning personal morality, conveys no assurance of chastity in any sense of the word. Furthermore, what is the practical use of inquiring into a person’s beliefs to-day, when there can be no guaranty as to what they will be to-morrow?

The educational test assures no safety as to character. The ability to speak, read, and write English or any other language, intelligence and general or even exact information as to our form of government and the “high spots” of American history, are little in the way of assurance of loyalty or usefulness as a citizen. The most noxious propagandist that we could import or admit to citizenship could pass the most rigid intellectual test. During the debate on the naturalization law in the House of Representatives in June, 1906,[177] Representative Steenerson of Minnesota said:

... The qualifications that we have required of people in the past who intend to become citizens is that they be men of good moral character and that they are attached to the principles of the Constitution of the United States.... They may be men of good moral character and attached to the principles of the Constitution, and yet be unable to comply with this requirement. Ability to write the English language.... If, for instance, an elderly man like President FalliÈres of France should decide to emigrate to the United States, he cannot be naturalized, because in all probability he would not be able to learn the English language within five years; whereas Count Boni de Castellane, who has undoubtedly had opportunities in the past ten years of learning the English language, could be naturalized, because he could speak and write English....

It is not from the immigrants who come here to settle on our public domain, who come here to abide permanently and to build homes and raise families, that we may expect frauds upon our election laws or danger to our free institutions. Such immigrants should not be denied citizenship because of inability to speak and write English. They may, notwithstanding, be as loyal and as patriotic as any. Nothing has been shown that connects inability to speak English with any of the evils complained of. There is no relation of cause and effect between them. The frauds and perjury against naturalization laws were committed by persons proficient in English.

One of the naturalizing judges in Kansas, long familiar with the workings of the law, said in his answer to the questionnaire of the Americanization Study:

An educational test, such as that to which petitioners for naturalization are subjected by some judges and some naturalization examiners, applied at the ballot box to all who would vote, would wreak havoc upon the enrollment of both native and naturalized. It is safe to say that not one out of a hundred of native-born citizens, even college educated, could pass respectably the examination. A very small proportion of American-born citizens of any age or of either sex have read the Constitution of the United States or have even a superficial knowledge of its contents. The present writer has derived some amusement during his conduct of this investigation from asking of more than ordinarily intelligent acquaintances some of the questions to which applicants for naturalization have to respond in various courts. The ignorance of even fundamental matters displayed by these scions of the “old stock” has been almost invariably both ludicrous and lamentable.

One of the questions which the Americanization Study asked of the naturalization judges was whether they would favor a standard intellectual test for both native and foreign born as a prerequisite for admission to the ballot box. Of 326 judges who answered the question a substantial majority (180) answered, “Yes,” and 44 were not sure but that it would be a good thing. The best answer that the 102 who opposed the idea could make was valid enough—i.e., that the native born have had 21 years of residence in the atmosphere of American institutions, and may be assumed to have a general intellectual fitness. The other objections were legalistic; but they all came out to the same fact—that fitness for citizenship and the ballot is a question of personal character and general attitude toward the public welfare.

At first glance it might seem simple enough to devise an oral or written examination by which to test the individual equipment of an applicant for citizenship—or a native-born citizen seeking access to the ballot box; actually it is impracticable. A set of questions would permit memorizing and recital by rote; to leave it as at present to the wit of the examiner or the judge means that no two applicants will be subjected to the same test. The naturalization judges say frankly that they cannot outline an examination, though they think that somebody might!

The Merchants’ Association of New York appointed a committee on immigration and naturalization which gave considerable study to this subject, and came out where everybody else comes out:

Every applicant for citizenship—including the wives who now are swept in regardless of their own fitness by the naturalization of their husbands, or kept out by their rejection or failure to apply, should be considered in the light of his own personal character and record of behavior during the preliminary-period residence here. And character and behavior should be proved as any other material facts are proved—by preponderance of evidence. The present practice is quite otherwise. The whole procedure would be revolutionized if the applicant were required, or permitted, to produce a body of reasonable and competent evidence sufficient to convince the court or its representative assigned to take the testimony. His neighbors, his employer, his pastor, the school-teacher, his fellow workmen, by word of mouth or affidavit—in short, all those who know what sort of person he (or she) has been during the five years of required residence—could readily satisfy the court as to the essential fact. The judges themselves in most cases would welcome this change. As it is now, the whole business is wound up with red tape, and thousands of persons have been excluded on the flimsiest technical grounds, simply because the evidence presented to the court must be, in the typical case, that of two witnesses, only two, and the same two throughout the whole proceeding. If anything can be found amiss with these or either of them, the application must be rejected.

It may even be argued that the presumptions and the benefit of doubts should be in favor of the applicant; that the burden of proof should lie upon those who oppose admission. During the whole period, 1908–18, in the whole United States only 14.3 per cent of all denials of petitions for naturalization were for reasons involving the personal fitness of the applicant—“ignorance” and “immoral character.”[178] This means that if every alien who applied for citizenship during those eleven years had been granted his certificate of naturalization without investigation or formality, the proportion of “ignorant” and “immoral” admitted would have been only 1.7 per cent—less than two in a hundred!

Whatever might have been the merits, real or imaginary, of the hairsplitting, meticulous policy which has governed the operations of our naturalization system since the Act of 1906 swept into ancient history the scandals of the previous years, that policy was effectively junked during the war. Since the beginning of the fiscal year, 1918–19, under the operation of the military naturalization plan, more aliens have been naturalized on the sole ground that they were in the war service—practically without regard to race, declaration of intention, previous residence, educational or moral qualifications—than the ordinary naturalization of any year since the beginning of the present system. These are direct admissions; we have no means of knowing how many “derivative” citizens these soldiers and sailors carried in with them, or have made by marriage to alien women since their naturalization.

This wholesale letting down of all the bars, however necessary and innocuous it may be deemed, at least has reduced to absurdity the policy of hand picking and superscreening practiced in the ordinary cases. It furnishes a sound and logical starting point for a new, more reasonable, and more humane system, under which the alien may know with greater certainty what he must do and prove in order to establish his right to join us; a system which will give him a different impression of our common sense and efficiency, as well as of our attitude toward him not only as a petitioner for fellow citizenship with us, but as a fellow member of the human race.

NO LOWERING OF STANDARDS

There is no argument here for lowering the standards of admission. The applicant should be able to speak intelligibly the English language. This is not very important practically, because in the years which ordinarily elapse before the average alien files his petition he will have learned to speak English anyway. There is good ground for requiring also the ability to read English. The intelligent participation in the politics of this country requires some knowledge of current events and political argument; the voter should be able to read the English-language newspapers. We are unable to follow those who would enforce also a requirement of ability to write in English. Such ability probably will exist in a majority of cases, anyway. It is no sine qua non of either intelligence or character.

Theoretically, one might argue for a distinction to be made between the general rights and responsibilities of bare citizenship (such as diplomatic protection, the right to own property, exemption from taxes imposed upon aliens as such, etc.) and the specific right to vote. This, however, is almost completely academic, because, except for the limitations of age and residence for a period prior to election which apply alike to all citizens, our Constitution—especially with the Nineteenth Amendment in force—assumes that citizenship includes the ballot. It is difficult to see any reason for requiring of the naturalized citizen, as a qualification for voting, educational attainments other than those required of the native born. It is equally difficult to see how even a native-born citizen can be an intelligent voter if he cannot speak and read the language in which the issues of elections are discussed. Our own statistics of illiteracy, in states where the proportion of the foreign born in the population is negligible, call for educational measures having no exclusive reference to the foreign born.

There is a growing custom in the courts, properly urged by the Naturalization Bureau, of accepting, in lieu of any other educational test, a certificate of graduation or proficiency from teachers in public and other schools. The Naturalization Bureau now supplies the forms for such certificates. A majority of the judges who answered the questionnaire of the Americanization Study not only favored this practice, but declared that it was their own. A good many, however—a full third of those who expressed themselves on the subject—insisted upon their own right and duty to examine the petitioner themselves, or minimized the importance of the educational test altogether. It seems obvious, however, that the certificate of properly accredited American schools should be accepted for this purpose. Whatever may be said in favor of having no educational test whatever, and of admitting a petitioner who has no such certificate, there seems no reason for not giving the petitioner the benefit of the extra credit implied in his having attained such a graduation.

The declaration of intention (to become a citizen) should be retained, notwithstanding the opinion of many persons, including some attentive and discriminating students of the subject favoring its abandonment. But the declaration in its present form and practice is not satisfactory from any point of view. The procedure surrounding it is now far too casual. It should be protected by substantial safeguards and attended by a far greater degree of solemnity. Its sufficiency in form, its technical correctness, should be certified at the time of its issue by the officer of the court before whom it is attested. There should be a preliminary period of residence in this country before the declaration is made.

The identity of the declarant should be clearly established; he should have and present a certificate of “lawful entry” into the country; there should be no confusion or doubt about the name under which he goes; his photograph, fingerprints, signature, or other means of unmistakable identification should be attached; all of the essential facts concerning his nativity, previous residence, marital, status, occupation, and other things germane to an application for so vital a change of relationship should be set forth clearly and suitably attested. As at present, copies of the declaration should be in the possession of the declarant, and on file in the court and in the Naturalization Bureau.

It might well be required that the declarant should register with the court or with the Naturalization Bureau every change of residence, so that the record of his movements and behavior during the entire period of his “probation” would be available.

The fact of the making of the declaration should be publicly posted, so that not only the court and the government, but the general public, should be put upon notice that a “new member” is applying for admission. And when it comes into court at last as an indispensable part of the record in the case, its sufficiency as a document should be taken for granted. The responsibility for technical errors in it should lie upon the officer who accepted and attested it; substantial errors of fact should exist only under penalties as for other kinds of perjury. The burden of proof against its validity should lie upon the government or any other person attacking it.

Under the law as now enforced, the declaration of intention expires at the end of seven years; but there is nothing to prevent its renewal, and in those states in which formerly declarants had the right to vote, all the politically important rights of citizenship could be, and in many cases were, kept alive, as it were, perpetually by such renewals without any other test or ceremony. Even now, the other privileges of citizenship may be thus perpetuated by persons who on no theory could “get by” in a naturalization court. It should be made at least much more difficult to renew a declaration once expired. The burden of proof should rest upon the alien to show why he did not make final application for citizenship within the period during which his declaration was valid. A judge in Oregon, expressing the opinion of many judges on this point said:

Let it be borne in mind that this is a very different matter from the question of restrictions upon immigration, literacy, and sanitary tests for mere admission to the country. The declarant is making his initial application for fellow membership with us; he desires to become flesh of our flesh, to share our sovereignty. The essential value of the declaration of intention is that it registers as of a certain date a state of mind toward our country and its citizenship. It has a moral value for the declarant in putting him on notice that he has definitely determined to put off his old allegiance; it ought to warn him also that he is passing under scrutiny by his neighbors and by the government; that his behavior has become in a special way important to him and to the community. It is conclusive evidence of at least two of the necessary five years of residence. Rightly safeguarded and estimated, it would be a most precious possession.

But the corollary of this is that the process of final naturalization should be greatly simplified. The great number of denials for “want of prosecution” is in itself an index of the degree to which the procedure is surrounded by vexatious technicalities, delays, expense, discouragements which drive the petitioners and their witnesses out of the business, mostly during the ninety days’ interval between the filing of the petition and the time for the final hearing. In the normal case, the witnesses should appear once for all; the record should come before the court complete, in writing, and once for all, except in disputed or appealed cases when a deeper inquiry is called for. Make the standards of admission as severe as you please—the procedure of complying with them should be simple, direct, as inexpensive as possible, and readily understood by anyone of ordinary intelligence.

A FUNCTION ADMINISTRATIVE OR JUDICIAL?

It may be debatable whether the whole function of naturalization should be taken out of the hands of the courts and made a purely administrative activity of the executive department of government. A good many students of the subject favor such a course. The present study has not led to this conclusion. The judges generally, while they would be glad to be relieved of a peculiarly exacting and vexatious duty, do not favor it. From the beginning of our history the function has been judicial, and very sound reasons should be advanced for making so radical a change. It would require the establishment of an enormous machinery at a time when every consideration cries out for the simplification of the government. The present Naturalization Bureau, if adequately manned and properly directed, and required to attend to its own business rather than to expand itself into an educational institution, could save the time of the courts to a great extent, and at the same time save to the situation the dignity and solemnity purporting at least to abide in the judicial atmosphere.

There has been a proposal to create a system of traveling naturalization commissions, sitting from time to time at the various county seats and passing upon petitions. But it is vitally important to the petitioners, who are almost always folk of limited means and time, that the place to which they must go shall be as near at hand as possible, and the necessary traveling for themselves and their witnesses as little as is absolutely necessary.

Another consideration, too often overlooked, especially by those to whom the naturalization problem is seen chiefly from the point of view of the great cities, lies in the fact that in the rural districts the judges have a wide acquaintance, and are likely to know, or to have direct means of knowing, all about the petitioner. Once we rid our minds of the current impression that ignorant immigrants rush from the landing port to the ballot box, and remember that in the average case the petitioner has been in this country more than ten years, and in a vast majority of cases has lived for five years in the same state, if not in the same community, the matter takes on a wholly different aspect. It is quite conceivable that in the great cities a special court, or a special term of court, might be set aside for the consideration of naturalization cases.

PHYSICAL CONDITIONS AND DIGNITY

What is most needed is a better arrangement for taking care of this business—a physical as well as an administrative arrangement. The physical surroundings leave much to be desired. Merton A. Sturges, Chief Naturalization Examiner at New York, thus describes[179] the conditions under which final hearings are conducted in some of the courts.

The tendency in the past few years has been in the direction indicated by Mr. Sturges. Increasingly, all over the country, judges have awakened to the need of a greater solemnity in the conferring of citizenship; a few judges have, at their own expense, furnished a printed address or book of instructions to the new citizens, and even a small American flag which is enormously prized by the recipients. In one court in North Dakota the judge serves upon each declarant, at the time of his filing of his declaration of intention, the following formal notice under seal of the court:

In this court there is a ceremony just such as Mr. Sturges recommends—a talk by some one selected by the presiding judge, on the history and meaning of the flag and government, and what it means to take on the new citizenship. Then there is offered, and of course taken by all the accepted petitioners, the following pledge, devised by the judge:

In many parts of the country it has become a custom to hold public ceremonies, at which the new citizens naturalized within the past year or other definite period are assembled with their families to hear addresses, join in patriotic singing, and otherwise celebrate their adoption into the new fellowship.

FUNCTION OF THE NATURALIZATION BUREAU

The Naturalization Bureau should be, as it is now, the watchdog of all this business, the investigating agency of the government. But its work should not be confined, as it is now to so great an extent, to picking flaws in papers, straining shrewd technical points of law and procedure, or trying to find something wrong with the two witnesses or the intellectual attainments of the petitioner. Being informed at least two years in advance that George Kristopoulos, whose address is registered with the court and in its own files, has declared his intention to apply for citizenship, it can ascertain affirmatively at all times what he is about, and present to the court at the time of the final application a complete record of his conduct, upon which the court can act intelligently. Its functions in this direction should be materially expanded.

The naturalization examiner should represent the court, in the relation of a master, taking the necessary testimony, examining depositions, and presenting to the court at last a record complete in writing, upon which, in the great majority of cases, the judicial order would be entered without further ado. This would seem to be indeed its logical function. The Bureau needs a real job; in fact, has a real job instead of its present largely self-assumed adventures in the field of public education, for which it is not properly equipped, which has bedeviled its legitimate work and demoralized its correspondence and its whole system of records, upon which the proper administration of the law so greatly depends.

Except as the carrying out of the existing procedure has unjustly or unreasonably affected the individual petitioner for citizenship, it has not been conceived as the purpose of this study to investigate the Naturalization Bureau as an exhibit of public administration. Neither the available time nor the space in this volume has permitted such a study as would have been adequate in scope or just to the Bureau. Generally speaking, the thing which has been impressed upon those who have carried on this branch of the Americanization Study has been the zeal and honesty and vigilance for the public welfare with which the Bureau has done its work ever since its establishment in its present functions by the Act of 1906.

No serious charge or insinuation of corruption or willful misconduct of any kind on the part of any member of that service has come to the attention of the Study, and it may be predicted without reservation that no such charge or insinuation would be sustained by the facts. For fifteen years and more the Bureau has “carried on,” under conditions of great difficulty, generally undermanned and insufficiently appropriated for—although its business has from the beginning not only been self-supporting, but brought into the treasury of the United States money ample to have paid for adequate personnel—except during the war, when the prevailing hysteria about immigrants and the ill-informed rage for all manner of things that might be called “Americanization” led to the hasty and extravagant subsidizing of anything that could be tagged with that word. The Bureau deserves great credit for what it has accomplished. More than that, it is in no captious spirit that any demurrer has been entered here to what it has gone out of its way to attempt.

The time is ripe now to review and construct to better purpose on the basis of this long and informing experience, for an overhauling of the whole process by which aliens are taken into our political system. The Naturalization Law of 1906 and the amendments thereto should be revised as a whole, and what has been learned should be built into a new Act, retaining the substance which experience has abundantly justified, and sloughing off the excrescences which have grown up and accumulated. This should be done on the basis of a thorough investigation under the authority of Congress, and in a wholly constructive spirit.

Such an investigation would disclose the utter insufficiency of the force now available at headquarters and in the field; the lack of precision in the scope and technic of the Bureau; the chaos existing in its records; the need of intelligent and consistent direction of the field force by a supervising chief examiner or similar officer; the waste of effort and money in directions having nothing substantial or logical to do with the main work of the Bureau; the need of one or more competent law officers to unify the policy of the service in its practice under the decisions of the courts; the crying need of a simplification of the standards and procedure of admission and of the practices of the clerks of courts in handling the papers and records upon whose sufficiency and accuracy hang the welfare of thousands of well-intending human beings who desire to join us and are needed in our citizenry. The whole subject has gone too long without due understanding by the public and its representatives in Congress.

Meanwhile our would-be citizens have been chased from pillar to post and back again, losing in hundreds of thousands of cases their affection and respect for the country to whose fellowship they asked only the privilege of contributing what they might with all good will.