enactment of the present naturalization statute, which has in operation proved a most workable and satisfactory rule. The people of this country are indebted for their present naturalization statute, as they are indebted for numerous other beneficent laws that actually protect their interest, to Theodore Roosevelt, then President of the United States, who on December 5, 1905 (Doc. No. 46, 59th Congress, 1st Session), called upon the law-making body to bring to an end the notorious naturalization frauds, that had shocked the country for years. In United States v. Janke (D. C.) 183 Fed. 278, we find this picture of the times, by Judge Amidon:

"In the year 1906 Congress had before it for months the question of the proper regulation of the admission of foreigners to citizenship. The subject had been brought impressively before the country by the discovery that extensive frauds had been committed under the laws then in force. In cases arising at St. Louis (Levin v. U. S., 128 Fed. 826, 63 C. C. A. 476; Dolan v. U. S., 133 Fed. 440, 69 C. C. A. 274) it appeared that corrupt politicians, in order to forward their corrupt purposes, had gathered together mobs of foreigners and brought them to the courthouse, grouped according to their nationality-Huns, Italians, Armenians, and Jews. They were collected in the corriders of the courthouse, and each band placed under the generalship of a policeman, and then marched in blocks before the judges of one of the high courts of that city, and there, under a merely formal ceremony, in which the oath was administered to the entire block, they were admitted as citizens. In some cases the formality of going before the court was omitted, and citizenship papers issued to lists furnished by ward politicians. Upon investigation it was found that many of these people had been in the United States for only a few days. Similar frauds were subsequently discovered in other cities."

The same court, in United States v. Lenore (D. C.) 207 Fed. 867, 868, makes the further statement:

"In 1902 fraudulent and illegal practices in the naturalization of allens were discovered in the city of St. Louis, Mo. Some of these misdoings are recounted in the opinion in Dolan v. United States, 133 Fed. 440, 69 C. C. A. 274. The prosecutions which resulted in the Eastern district of Missouri led to investigations in other cities, and the discovery of many fraudulent and illegal practices in the issuance of certificates of naturalization. In some cases perjury and subornation of perjury were resorted to for the purpose of deceiving the court and obtaining certificates for aliens who had not resided in the country for the requisite time. In other cases foreigners were marched into the court in large companies, and the oath of allegiance administered to the whole company, although many of them were unable either to speak or understand the language that was used. Two persons made the ordinary witness' oaths for the whole company. Upon this sham and spurious proceeding certificates were issued. In other cases clerks of court issued such certificates without any proceeding in court whatever, and fabricated a judicial record to support the certificates. It was even discovered that some clerks were engaged in a regular brokerage business in certificates of naturalization. This practice went so far that some of these certificates were sold to aliens residing abroad, who had never been in the United States, in order that they might be used for fraudulent purposes, both with respect to foreign countries and this country. The result of these investigations was gathered together in an elaborate report, which was presented to Congress and resulted in the passage of the act of 1906. Congressional Record, vol. 40, part of page 7036; House Documents, col. 44 (Miscellaneous) 59th Congress, 1st Session."

The legislation adopted, as a result of President Roosevelt's insistence, while containing safeguards not previously found in our laws on the subject, and while reserving to the United States the right to appear and to be heard in connection with every naturalization ap

(269 F.)

plication, was nevertheless not self-enforcing. So we find this complaint upon reference to the annual report of the Commissioner of Naturalization for the year 1918, page 9:

"It is perhaps a natural consequence arising from the lax and informal procedure under the old system, but it is a fact that some of the judges have appeared to think the bureau entirely too technically exacting in its persistent view that the law must be complied with in its every detail, and that the entire burden and responsibility of establishing beyond reasonable doubt his personal fitness for citizenship rests upon the petitioner. Whether the courts, consciously or not, hold this view, their rulings in too many cases indicate their position to be that the allegations in his petition constitute all that is required of a petitioner, and that, having made them in the manner required, the petition is to be treated as a rule against the government, to show cause why he should not be admitted, thus casting upon the government the burden of refuting the allegations made. To illustrate: A petitioner claims good behavior and love of American institutions and their basic principles; witnesses testify to good behavior and consequent belief of the attachment professed. Thus the case is made up. If the government cannot produce evidence of misconduct or disloyalty, under this view the petitioner is entitled to be naturalized. In other words, his fitness to become a citizen and his loyalty after being admitted is assumed beforehand, just as under our system of criminal jurisprudence every man is assumed to be innocent of any crime until the contrary is proved, and the burden of proving unfitness and disloyalty rests upon the government, as in a proceeding for conviction of crime or misdemeanor. Fortunately such instances of judicial misconception are few, but they are sufficiently persistent to justify, or rather to require, that attention be drawn to them."

And again, for the year 1914, pp. 16, 17:

"Under the report on the field service of the bureau consideration will be given to the list of denials for failure to comply with the law. It is sufficient to say under the present heading that there is a strong disinclination in some of the courts to strictly enforce the naturalization law and deny petitioners who may possess the personal statutory qualifications, but in whose applications there appear omissions of some one or more requirements of the law, either on the part of such petitioners, or, especially, on the part of clerks of courts. This attitude of the courts may be summed up tentatively in these words: 'I know that this is a good man and that he will make a most desirable citizen. To satisfy the court upon this point is the single purpose of all the formal or technical requirements of the law. As I am already satisfied upon this vital point, what is the use, either as regards the welfare of the public or the ultimate result, of denying this petitioner, and putting him to the consequent mortification, delay, and additional cost, merely to force him or the clerk of this court to supply the omission of a technicality which in this case is useless?'

"This view is appealing, if not conclusive, to the nonprofessional mind, which is proud of its ignorance of the law and its methods, and of its unquestionable claim to perfect acquaintance with the rules of common sense. Its essence, however, is plainly a judicial proviso attached to a legislative enactment by which-in those cases in which the processes of the judicial mind perceive the legislative method to be not simply useless, but actually obstructive of the purpose sought by the legislative branch of the government-the court dispenses in whole or in part with the technical formalities of the naturalization law. Fortunately instances of this kind are of less frequent occurrence each year, though still sufficent in number to be the occasion of reasonable apprehension to administrative officers that dangerous precedents are being established, which threaten the efficiency of the present law. When the law requires a specified physical presence, will hypothetical or constructive presence, but actual physical absence, be a sufficient compliance with its terms? When the law says 'continuous,' does it mean unbroken, or does it, between the lines, convey the assurance that, if the break in continuity is not too long, or if caused by a commendable response to some call of natural duty, discon

tinuity will not be seriously regarded? Is the 'personal' knowledge required of witnesses in regard to a petitioner's qualifications merely an ignorance on their part of his lack of such qualifications? When the required legal posting of the notice of the names of petitioner and his witnesses has not been complied with for the statutory period, may it be held that a petitioner is legally before the court and that the law in respect thereto is merely 'directory,' and the failure to post is not the fault of the petitioner but of the clerk of the court?

"These and many similar questions are arising daily, and if the courts were to be guided by the theory above propounded it seems clear that the process of 'construction' of law would degenerate into a process of destruction and the ultimate crumbling away of many of the provisions which, whether necessary or not, are still a part of the law of the land, to the support of which all those engaged in applying it have pledged themselves under solemn oath."

The law, however, is succinctly stated by Mr. Justice Pitney, in Johannessen v. United States, 225 U. S. 240, 32 Sup. Ct. 616, 56 L. Ed. 1066, in the following language:

"An alien friend is offered under certain conditions the privilege of citi zenship. He may accept the offer and become a citizen, upon compliance with the prescribed conditions, but not otherwise. His claim is of favor, not of right. He can only become a citizen upon and after a strict compliance with the Acts of Congress. An applicant for this high privilege is bound, therefore, to conform to the terms upon which alone the right he seeks can be conferred. It is his province, and he is bound, to see that the jurisdictional facts upon which the grant is predicated actually exist, and if they do not he takes nothing by his paper grant"

-and by Mr. Justice McReynolds in United States v. Ginsberg, 243 U. S. 474-475, 37 Sup. Ct. 422, 425 (61 L. Ed. 853):

*

*

"An alien, who seeks political rights as a member of this nation, can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare. No alien has the slightest right to naturalization, unless all statutory requirements are complied with; and every certificate of citizenship must be treated as granted upon condition that the government may challenge it, as provided in section 15, and demand its cancellation unless issued in accordance with such requirements. If procured when prescribed qualifications have no existence in fact, it is illegally procured; a manifest mistake by the judge cannot supply these, nor render their existence nonessential."

The problem under consideration is not one that concerns the courts alone. On the contrary, it is a problem that vitally affects every man, woman, and child within the United States. By way of illustration, reference may properly be made to the fact that during the period 1900-1914, inclusive, 13,377,087 immigrants were admitted to the United States. Of these, 11,726,606 were over 14 years of age, and of this latter group 3,116,182 were illiterate in their own tonguea proportion of 26.55 per cent. of illiterates over 14 years of age; 48.1 per cent. of these illiterates were between the ages of 20 and 45 years; only 16 per cent. of these illiterates were under 20 years of age. Much of this immigration was from the so-called oppressed lands. Because of conditions surrounding them prior to their emigration to America it is not to be wondered at that a considerable number of these immigrants may hate any government, and that to them all government is obnoxious. We cannot escape the fact that our candidates for citizenship must necessarily come from these immigrants.

(269 F.)

Nor can we ignore the fact that the unfit, as well as the fit, present themselves for citizenship. In re Clark, 18 Barb. (N. Y.) 444; In re Spencer, Fed. Cas. No. 13,234, 5 Sawy. 195; Ex parte Douglass and Sandburg, 5 West. Jur. 171; In re Guliano (D. C.) 156 Fed. 420; In re Di Clerico (D. C.) 158 Fed. 905; In re Ross (C. C.) 188 Fed. 685; United States v. Ollson (D. C.) 196 Fed. 562; In re Talarico (D. C.) 197 Fed. 1019; In re Trum (D. C.) 199 Fed. 361; United States v. Bressi (D. C.) 208 Fed. 369; In re Centi (D. C.) 211 Fed. 559; United States v. Raverat (D. C.) 222 Fed. 1018; In re Hartman (D. C.) 232 Fed. 797; United States v. Wursterbarth (D. C.) 249 Fed. 908; United States v. Darmer (D. C.) 249 Fed. 989; In re Addis (D. C.) 252 Fed. 886; United States v. Swelgin, 254 Fed. 884; United States v. Kramer (C. C. A.) 262 Fed. 395; In re Kornstein (D. C.) 268 Fed. 172.

At the last session of Congress, figures were presented to the committee on immigration and naturalization of the House of Representatives, during its hearings on H. R. 10404, to the effect that at that time there were in round numbers about 11,000,000 adult aliens in the United States; that of these some 2,500,000 had filed their declarations of intention, leaving approximately 8,500,000 who had never taken any step whatsoever towards citizenship. It is quite apparent from these figures that the "melting pot" has not melted. This was repeatedly emphasized during the World War. The line of racial cleavage was as distinctly drawn in this country then as in Europe. Very considerable portions of our population of foreign birth seemed concerned more with what was best for the lands of their nativity rather than with what was best for the country of their adoption. Cases such as Schurmann v. United States (C. C. A.) 264 Fed. 917, deal with this situation. This foreign element must either be lifted up to American standards, or America must eventually be reduced to their standards. We must become all-American, or, failing this, we will in time become all-alien. And before any given candidate is clothed with the right of franchise under our naturalization laws, he should be required to make a convincing showing that the Americanization process in his case has reached the stage where he is heart and soul with us, and that his naturalization would be more a benefit than a detriment to the country. If any doubt should be entertained as to the soundness of this conclusion, it is necessary only to consider the present flood of immigration (all prospective candidates for naturalization), which in the short time that has elapsed since the Armistice has reached the pre-war height. Limitations due to shipping have alone kept the country from being flooded. So critical has become the situation that the present Congress has been appealed to, to suspend all immigration for a reasonable period of time.

The courts are chargeable with no further duty in a case such as we are here considering than to see that the individual candidate has fittingly prepared himself for citizenship. But even a casual consideration of such a case must, however, convince any thoughtful person that as an indispensable prerequisite to naturalization the candidate must possess an acquaintance with, and working knowledge of, the principles of the Declaration of Independence and Constitution of the United States. An intelligent sympathy with, and understanding

of the purposes of these great charters of human liberty must be shown by the candidate, and he must have a comprehension of the obligations and responsibilities of citizenship arising from his taking the oath of allegiance forming a part of his naturalization proceeding, The candidate, in the instant case lacking these essentials, his petition will be denied.

In re SILBERSCHUTZ.

(District Court, E. D. Missouri, E. D. December 17, 1920.)

No. 8982.

Aliens 62-Claiming draft exemption as enemy subject negatives prior declaration of intention.

An alien subject of Austria-Hungary, who made his declaration of intention prior to the war with that country, but who subsequently claimed exemption under the Selective Service Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 2044a-2044k) on the ground that he was a subject of an enemy country, held not entitled to admission to citizenship on such declaration.

Petition of Abraham Silberschutz for naturalization. Denied. M. R. Bevington, Chief Naturalization Examiner, of St. Louis, Mo., for the United States.

DYER, District Judge. The petitioner for naturalization in this cause is a subject of the former Austro-Hungarian monarchy. His status since December 7, 1917, has been that of an enemy alien. Within that period of time, he has filed the application for citizenship now under consideration. In support of the same, he has made a part thereof a declaration of intention executed some five years ago, or prior to the declaration of war against the country of his nativity. The evidence discloses that in the questionnaire executed by him under and pursuant to the regulations promulgated by virtue of the Act of May 16, 1917, known as the "Selective Service Act" (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 2044a-2044k), he claimed exemption from military service under class 5-E, while under Series VII of said questionnaire he stated he was not a citizen of the United States and pleaded exemption on that ground.

In support of its motion to dismiss the application for citizenship of this petitioner, the government has introduced in evidence a certificate. of the Adjutant General of the United States army, over his seal, certifying to the facts respecting the plea in bar interposed to military service in the instant case on the ground of the enemy alien status of the registrant. The court will take judicial notice of the signature of the said Adjutant General and of the seal of his office. The petitioner does not challenge the correctness of this certificate of the War Department, nor does he challenge the truthfulness of the recitals contained in his questionnaire. But, even should he attack said questionnaire, parol evidence would not be admissible to impeach a formal written instrument of its character, particularly when we keep in mind that said questionnaire was executed under the solemnity of an oath.

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