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to think that this is a bill to permit the oath of allegiance, by a candidate for citizenship, to be taken with certain reservations. There is nothing in the bill, itself, about reservations.

Mr. JOHNSON. Wait a minute.
Mr. GRIFFIN. No reservation is asked for anybody.

Mr. Johnson. May I interrupt you there and ask you if the title that has been used in the Congressional Record calling attention to this hearing, is considered a fair title; that is to say, at the conclusion of the House proceedings each day is listed the other hearings of the next day, and the call for this particular hearing is put in the Congressional Record under these words: “Prerequisite for naturalization." Is that satisfactory?

Mr. GRIFFIN. I do not seeMr. Johnson. I am just asking you. I do not have that responsibility.

Mr. GRIFFIN. The Congressional Record is different.

Mr. JOHNSON. Just to clear the record, I would like to assure my colleague who offered this bill, that that title was written by a clerk in the office; it was not written by the chairman. That apparently was an effort to designate the gist of the hearing, and I have not weakened yet. I did not write that, but I will swear it gives a pretty good cue to what the hearings are about.

Mr. GRIFFIN. The human mind operates in certain bands of frequency, and there are some intellects that probably can not go beyond that band. I was convinced that the former chairman of this committee

Mr. JOHNSON. But how about this title: Prerequisite for naturalization? Does that title cover it?

Mr. GRIFFIN. It does not concern me.

The Chairman. Congressman Griffin, the committee will bear in mind the point that you make for this bill, and you may fix your own title.

Mr. GRIFFIN. Yes; and I want to thank you, Mr. Chairman and gentlemen of the committee, for your indulgence.

The CHAIRMAN. I think you have been very fair yourself, and everybody else, and I think we have had a good discussion of it. The matter will be closed.

STATEMENT BY HON. ARTHUR M. FREE Mr. FREE. May I have one word, before we adjourn? Much has been said about the dissenting opinion of Mr. Justice Holmes. I read that opinion. I think the justice missed the facts that were before him in the case. In his opinion, he says: but thoroughly believes in organized government and prefers that of the United States to any in the world. Surely, it can not show a lack of attachment to the principles of the Constitution, that she thinks that it can be improved.

In other words, he bases his whole opinion on the fact that she believes in organized government. Now, as to the testimony before the court by witnesses, he says:

Having no sense of nationalism or cosmic consciousness of government to the human family.

In other words, Justice Holmes bases his opinion upon the fact that she believed in organized government; when, as a matter of fact, in her own testimony, she, herself, denied that very fact. .


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The CHAIRMAN. I think these matters ought to be in executive session.

Mr. FREE. I wanted that in the record.

Mr. GRIFFIN. That is not incompatible with loyalty. A person may have a love for his fellowman, as he is taught to love his neighbor as himself; but that does not prevent him from having esteem for his country. The first idea of government in the human family is love for one's fellow beings.

Mr. JOHNSON. What would you do with the phrase “having no sense of nationalism”?

Mr. GRIFFIN. That is in the same category; that does not imply that organized government is not a necessary thing.

Mr. Johnson. What is government. Government is for the nation, is it not? Where is the sovereignty?

Mr. GRIFFIN. It is the mechanism for carrying on the nation's business—the same as business is organized.

Mr. JOHNSON. I have been a member of this committee for 19 years and have given much thought to the question of naturalization. If you were to compile some questions to ask a candidate for citizenship, what line of questions would you ask to determine whether the candidate for citizenship is well disposed toward this government?

Mr. GRIFFIN. In the first place, I would never in the world ask him what he was going to do, or thought he might do, at some time in the future, in some future war; because I certainly know that every blackguard or rascal who had reasons for becoming a citizen of the United States, would instantly say: “Yes, I will promise to enlist now in a war that may never come.' It seems that would be an absurdity; but if you want to obtain the attitude of the intended citizen toward the Government of the United States, there are 101 ways of getting at it.

The Labor Bureau, the Bureau of Naturalization, has its inspectors and its men who can be employed to hunt up the antecedents and conduct of the applicant; and if they have not force enough, I am sure Congress will be glad to strengthen their hands, in order to

Mr. JOHNSON. Mr. Griffin, have you given any thought to annual examinations of candidates for citizenship, instead of having them at the end of five years?

Mr. GRIFFIN. I am sorry, I have not. I am not in favor of extending too much power to bureaus of Government, to enable them heckle and meddle with the daily life of people. If they get into trouble in the courts, the report is made, even now, to the Bureau of Naturalization, if they misbehave themselves within five years, they may be deported under the law. I would confine the inquiry simply to their conduct, what they had done, and their antecedents; I would not try to penetrate what they thought they intended to do, in a war that might never come.

The CHAIRMAN. I thank you very much. The committee stands adjourned until to-morrow morning. This closes the public hearings on H. R. 297 and H. R. 298, and the committee will further consider these bills in executive session at the call of the chairman.

(Whereupon, at 4.45 o'clock p. im., the committee adjourned until Thursday, January 28, 1932, at 10 o'clock a. m.).

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DENIED CITIZENSHIP 1. Rosika Schwimmer:

(a) Opinion of Circuit Court. (P. 152.)
(0) Majority opinion of the Supreme Court of the United States.

(P. 155.)
(c) Dissenting opinion of Chief Justice Oliver Wendell Holmes.

(P. 158.) II. Prof. Douglas Clyde MacIntosh :

(a) Opinion of United States Circuit Court, Southern District of

New York. (6) Majority opinion, Supreme Court of the United States. (P. 159.) (c) Dissenting opinion of Chief Justice Charles Evans Hughes,

(P. 165.) III. Marie Averill Bland:

(a) Majority opinion of the Supreme Court of the United States.

(P. 169.)

(6) Minority opinion. (P. 171.) IV. Martha Jane Graber: Record of Court of Common Pleas of Allen

County, Ohio. (P. 172.) V. Mrs. Margaret Webb: Testimony before Judge Gustav H. Hoelscher,

Richmond, Ind. (P. 175.) VI. Mrs. Jorgan Boe (nee Mary Mabel Harris) : Newspaper article explaining

case. (P. 183.) VII. Reverend T. F. King: Letter of Reverend T. F. King, who was denied

citizenship. (P. 183.) VIII. Klemens A. Offermann. (P. 185.) IX. Showing change in naturalization forms to wit:

(a) Letter of Assistant Secretary of Labor, Hon. Robe White.

(0) Form 2214, Form 2214 A. X. State exemptions. XI. Federal exemptions. XII. Letter of Hon. John W. Davis. XIII. Organizations and prominent citizens indorsing H. R. 297, with copies of

letters received. XIV. Newspapers indorsing H. R. 297, with copies of newspaper articles covering the bill.



No. 3997. October term, 1927, April session, 1928.

Rosika Schwimmer, appellant, v. United States of America, appellee. Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division. June 29, 1928.

Before Alschuler and Anderson, circuit judges, and Baltzell, district judge.

Anderson, circuit judge. This is an appeal from a decree denying a petition for admission to citizenship. Appellant is a woman 50 years of age. The case is here upon an agreed statement of facts, and the decree. Equity Rule 77.

The statement of facts consists of the questionnaire submitted to appellant by the district director of naturalization, and her answers thereto; certain correspondence between her and the director; a condensed statement of her testimony at the hearing; and concludes thus :

“Formal proof as to residence, moral character, and fitness for citizenship was given by the witnesses who verified the petition.





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It is agreed that the testimony at the hearing of the petition shows that the petitioner is qualified for citizenship except in so far as the views of the applicant set forth in the foregoiing agreed statement of facts may show that the applicant is not attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same, and except in so far as the same may show that she can not take the oath of allegiance without a mental reservation."

At the close of the hearing the district court entered the following decree: "And now again upon consideration of the petition of Rosika Schwimmer

it appearing that the said petitioner is not attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same, and further that she is unable to take the oath of allegiance prescribed by the naturalization law without a mental reservation, it is therefore ordered that the said petition be and is hereby denied.”

The views of appellant relied upon to support the denial of her petition sufficiently appear in her answers to question 22 of the questionnaire, and her willingness to take the oath of allegiance, as shown in her answer to question 20. These questions and answers are as follows:

" 20. Have you read the following oath of allegiance? Yes. 'I hereby declare on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, State or sovereignty, and particularly to Hungary, of whom I have heretofore been a subject; that I will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic; and that I will bear true faith and allegiance to the same.'

" Are you willing to take this oath in becoming a citizen? Yes.

“ 22. If necessary, are you willing to take up arms in defense of this country? I would not take up arms personally."

When asked, upon the hearing, about her answer to question 22, and her expressed willingness to take the oath of allegiance, she said:

I am able to take the oath of allegiance without any reservatoions. I am willing to do everything that an American citizen has to do except tighting. If American women would be compelled to do that, I would not do that. I am an uncompromising pacifist. Asked how far does that goif I disapprove of the Government fighting, I answer, it means I disapprove of the Government asking me to fight personally with my fists or carrying a gun. I do not care how many other women fight, because I consider it a question of conscience. I am not willing to bear arms. In every other single way I am ready to follow the law and do everything that the law compels American citizens to do. That is why I can take the oath of allegiance, because as far as I can find out, there is nothing that I could be compelled to do that I can not do. If it is a question of fighting, as much as I desire American citizenship, I would not seek the citizenship."

Appellant was examined at considerable length upon the hearing, but the above extracts furnish a fair expression of the views relied upon to support the decree. Her testimony, other than the expression of these views, shows an intelligent appreciation of the fundamental principles of the Constitution and her attachment to them, and that she is well disposed to the good order and happiness of the United States.

The fourth subdivision of the section of the naturalization law, prescribing what the applicant must show in order to be admitted, reads:

"Fourth. It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the State or Territory where such court is at the time held one year at least, and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral character, and attachment to the principles of the Constitution shall be required, and the name, place of residence, and occupation of each witness shall be set forth in the record.”

The Supreme Court in Tutun v. United States (270 U. S. 569, 578), said:

" The opportunity to become a citizen of the United States is said to be merely a privilege and not a right. It is true that the Constitution does not confer upon aliens the right to naturalization. But it authorizes Congress to


establish a uniform rule therefor. (Art I, sec. 8, clause 4.). The opportunity having been conferred by the naturalization act, there is a statutory right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them, and, if the requisite facts are established, to receive the certificate. See United States v. Shanahan (232 Fed, 169, 171). There is, of course, no right to naturalization unless all statutory requirements are complied with. United States v. Ginsberg. (243 U. S. 472, 475); Luria v. United States (231 U. 8. 9, 22). The applicant for citizenship, like other suitors who institute proceedings in a court of justice to secure the determination of an asserted right, must allege in his petition the fulfillment of all conditions upon the existence of which the alleged right is made dependent; and he must establish these allegations by competent evidence to the satisfaction of the court. In re Bodek (63 Fed. 813, 814, 815); In re an Alien (7 Hill (N. Y.) 137). In passing upon the application the court exercises judicial judgment. It does not confer or withhold a favor."

Appellant had the right to submit her petition and evidence to the court, and to have it exercise its judicial judgment thereon, She had a right to have the evidence, and the effect of it, weighed and considered in accordance with the settled rules of law; to have the court consider only evidence relative and material to the issue; and to have that evidence given its probative force.

The question for judgment was, Did she make it appear that she had behaved, that is, conducted herself, as a person of good moral character, attached and disposed as the statute requires, during the time fixed by it? Assuming that the time to be covered by the inquiry ended with the bearing, her views, expressed then or before that time, might be important as disclosing whether her conduct was that required of applicants; but mere views are not, by the statute, made a ground for denying a petition.

The views expressed by the applicant at most reveal an unwillingness personally to bear arms, and it being agreed that she has shown herself in every other way qualified for citizenship, unless her expressed unwillingness to bear arms makes her conduct that of a person not attached to the principles of the Constitution of the United States, or not well disposed to the good order and happiness of the same, her petition should have been granted.

Vattell, in his Law of Nations, as quoted in appellee's brief, says:

* No person is naturally exempt from taking up arms in defense of the state-the obligation of every member of society being the same. Those alone are excepted who are incapable of handling arms or supporting the fatigues of war.

This is the reason why old men, children, and women are exempt." We do not have before us the case of a male applicant for admission who is able to bear arms and is witbin the usual conscription age, but the case of a woman 50 years of age.

Women are considered incapable of bearing arms. Male persons of the age of appellant have not been compelled to do so. Appellant, if admitted, can not by any present law of the United States be compelled to bear arms. Judging by all the conscription acts of which we have knowledge, she never will be required to do so; yet she is denied admission to citizenship because she says she will not fight with her fists or carry a gun.

In other words, there is put to her an hypothetical question--what would she do under circumstances that never have occurred and probably never will occur—and upon her answers to this supposed case her petition is denied. A petitioner's rights are not to be determined by putting conundrums to her.

The views of appellant relied upon to support the denial of her application have no substantial relation to the inquiry authorized by the statute. They were immaterial to that inquiry and do not furnish sufficient basis for the decree.

Reversed and remanded, with direction to grant appellant's petition,

[The United States Daily]



NO. 484,



It was held herein that an alien, a woman of 50 years of age, was not entitled to citizenship where, in applying for naturalization, she stated that she would not take up arms personally in defense of the country, and, in her testimony,

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