Personal Equation in Naturalization VI
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 entitled85 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: