Immigration and Naturalization

“The problem to be solved—and a most difficult one it is—is, what new legislation, if any, is needed, that … will remedy the pernicious effects, political, social, and economic, which … are resulting from the unchecked immigration and reckless naturalization of foreigners in the past.”

The “cholera scare,” as it was called, of 1893, which had its origin among the steerage passengers of the great Atlantic liners, brought the results of unlimited and uncontrolled immigration vividly before the American people; and it is to be hoped that the subsidence of that panic will not cause us to postpone a consideration of the problem until a fresh epidemic brings it up again to our minds with threatening force.

I do not propose at present to consider the medical and sanitary aspects of the subject, as they will doubtless be thoroughly studied by the national and state sanitary officers, and met by harmonious and effective measures. My motive now is to define the civil status of the immigrant when he lands, and when he proposes, or does not propose, as the case may be, to become an American citizen. Perhaps by examining the question of the alien’s nationality at this end of the line we may find methods to influence his movements at the other, or foreign end. The problem to be solved—and a most difficult one it is—is, what new legislation, if any, is needed, that will be for the interest of the alien immigrant as well as for our own, and will remedy the pernicious effects, political, social, and economic, which, as is becoming more and more evident, are resulting from the unchecked immigration and reckless naturalization of foreigners in the past. A combination of the statutes on immigration and naturalization, as explained further on, would go far toward effecting the solution.

The authority for the present legislation on naturalization is found in the Constitution of the United States, which gives Congress power “to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcy.”

Just what distinction, if any, was here intended between a “rule” and a “law” is not evident; be that as it may, Congress has interpreted the section as giving it the right to make laws regarding naturalization, so far as the forms of the process go and the courts which shall carry them out; but it has not made any laws obliging the States, or even the United States courts in the States, to carry out the provisions in a “uniform” way, nor has it established any machinery by which the “uniform rule of naturalization” which it is empowered, though not compelled, by the Constitution to establish, can be made useful either to the alien himself or to the nation at large. Not only each State and Territory, but even each court in them, may, and generally does, have its own forms of admitting aliens to citizenship in the place where they reside, so that there are numbers of unnaturalized or semi-naturalized aliens exercising the same right of franchise as fully naturalized, or even as native-born citizens.

The first step for the alien to take is to declare before any court having a seal and a clerk, except the police court of the District of Columbia, that it is his bona fide intention to become a citizen of the United States, and to renounce his allegiance to every other government. The court then gives him a certificate, known as the “intention” paper, stating that he has complied with these conditions.

Here it must be carefully noted that thus far the alien has recorded merely the declaration of his intention to become a citizen at some future day, at least two years off, and if he has just landed, at least five years off; often this intention is not carried out. The renunciation of allegiance. to his sovereign, also, is incomplete, until the alien takes out his final paper. The full and final renunciation of allegiance is not, as many aliens and even as some lawyers suppose, made at the time of declaring the intention to become a citizen. And the propriety of this is evident. The alien, after taking out his first paper, is, as it were, in a state of probation for the next few years. He may prove to be an undesirable citizen by getting into prison, or he may change his mind and go back to his native land to live. In the latter case, the alien, not having finally renounced allegiance to his sovereign, is free to return to his own country and resume all the rights of citizenship without going through the process of being naturalized. In other words, the filing of a declaration of intention to become a citizen of the United States does not terminate a man’s alienage, on the one hand, — although he may be permitted by the laws of the State of his residence to vote and hold office, — nor his citizenship in his native country, on the other hand.

Such cases constantly occur, especially with Germans, who are so strongly attached to their “fatherland.” This point may be of importance in determining an alien’s nationality and his claims on our government for protection. And here it may be remarked that aliens who have taken out only the first paper are not entitled to a passport, as many of them suppose, to their great disappointment.

The celebrated Koszta case, which nearly involved us in war, is an instance of the misunderstanding about renouncing foreign allegiance at the time of taking out the intention paper. The circumstances were as follows: —

Martin Koszta, a Hungarian by birth, came to this country in 1850, and declared his intention, in due form of law, to become a citizen. After remaining two years he visited Turkey. While at Smyrna he was forcibly seized, taken on board of an Austrian man-of-war then lying in the harbor of that place, and confined in irons, by Austrians, who avowed the design of taking him into the dominions of Austria. Our consul at Smyrna and our legation at Constantinople interposed ineffectually for his release. At this juncture, Commander Ingraham, with the United States sloop-of-war St. Louis, arrived at Smyrna. After inquiring into the circumstances of the case, and consulting with our legation at Constantinople, he came to the conclusion that Koszta was entitled to the protection of this government, and, by clearing his decks for action and training his guns on the Austrian vessel, took energetic and prompt measures for Koszta’s release before sunset. The Austrian commander, under this pressure, turned Koszta over to the French consulate, to be kept while his case was discussed by a court of all the foreign consuls at Smyrna. This resulted in his release. The affair led to a voluminous correspondence between our government and that of Austria, which was sent to Congress, and made a great point of in the next presidential message. Secretary Marcy, in his dispatch to our minister in Turkey, said:

“From the statement of the case, it is quite evident that Koszta, at the time he was kidnapped, was not a subject of the Emperor of Austria. He had withdrawn from his allegiance to the Austrian government, and the course of that government towards him was at least an implied consent to his withdrawal. By acts concurred in by both parties the ties of allegiance were severed. He had renounced on his part, as Austria had on hers, all claims to reciprocal acts or duties resulting from their former political connection as sovereign and subject, and they stood toward each other as if no such connection had ever existed.”

If this opinion is based solely on the fact that Koszta had declared his intention to become an American citizen, it is misleading; for, as we have shown above, there had been no withdrawal from Austrian allegiance except a bodily one, to which it is more than doubtful if Austria had ever given either written or implied consent; perhaps she had not even had any knowledge of the matter at the time Koszta emigrated. Some of the Continental governments issue a permit to travel implying a return in a limited time.

There are no acts known to diplomacy, except naturalization treaties, which can be concurred in by both governments, by which the ties of allegiance can be severed, and these treaties apply only to fully naturalized citizens. Our laws provide that an alien shall reside in this country until he is a full-fledged citizen, and can be protected under a naturalization treaty, if we have one with his nation. Koszta had not, certainly under the authority of our statutes, “renounced” anything, and had he gone to Austria instead of to Turkey all our diplomacy and ships-of-war could not have prevented his being put into the Austrian army, any more than they can prevent the semi-naturalized American who returns to Germany from being put into the German army. This is happening every day, and our government never thinks of alleging “withdrawal from allegiance,” or “mutually severed ties,” or any other diplomatic reasons, to the contrary. Aliens return at their own risk, and they know it. The best argument for protecting Koszta was that given in another part of Mr. Marcy’s dispatch, as follows: —

“Whatever may have been Koszta’s citizenship (not being a subject of the Ottoman Porte), he was, while at Smyrna, a Frank or sojourner, and might place himself under any foreign protection he chose to select, and the Turkish government respect the rights he thus acquired.”

This plea alone was sufficient to protect him, and it was hardly worth while to waste words on any other. Austria had no right to touch him because he was in Turkey, and we had a right to protect him because he asked us to, and that is all there was in it. Koszta’s right to protection was also based by Mr. Marcy on the ground of his having acquired domicile here, a doctrine which was expounded by Mr. Webster in the Thrasher case as follows: —

“The general rule of the public law is that every person of full age has a right to change his domicile, and it follows that when he removes to another place, with an intent to make that place his permanent residence, or his residence for an indefinite period, it becomes instantly his place of domicile: and this is so notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period. It is well known that hundreds of thousands of persons are now living in this country who have not been naturalized according to the provisions of law, nor sworn any allegiance to this government, nor been domiciled among us by any regular course of proceedings. What degree of alarm would it not give to this vastly numerous class of men, actually living amongst us as citizens of the United States, to learn that by removal to this country they have not transferred their allegiance, from the government to which they were originally subject, to this government!”

This quotation furnishes a good illustration of the defective enforcement of our naturalization laws. The number of this class of aliens is estimated to be at present over thirty-two per cent of the whole population.

In Koszta’s case Mr. Marcy subsequently admitted: “Had Koszta been within the jurisdiction of Austria when he was seized, the whole character of the case would have been changed, and the forcible taking of him from the legal custody of Austrian officers could not have been defended on any principle of municipal or international law.” If that be the case, what becomes of the law of domicile which we have attempted to graft on international law, and for ignorance of which Mr. Marcy administered a scathing rebuke in his note to the Austrian minister?

We have no naturalization treaties with Italy and Russia, and those nations, in the cases of returning semi-naturalized or even fully naturalized American citizens, snap their fingers at our naturalization laws, and clap our citizens into the army, or condemn them to fine, imprisonment, or exile, as they see fit. Even the so-called international law, which we are so fond of citing in our disputes with foreign nations, is admitted by them to a very limited extent, especially in military questions, from the fact that there is no uniform code of international law agreed upon and ratified by treaty among all nations, with penalties other than war for its infraction; and without penalties no law can be enforced. The military nations consider the treatises on international law as the more or less correct, interesting, and harmless lucubrations of studious and well-meaning but self-opinionated and narrow-minded professors and jurists. Several pages of Wheaton’s Commentaries are devoted to showing how unsuccessful the author was in urging Prussia to accept his views of exterritoriality, and the imperial government of Germany declines in the same way to modify her military system to suit the opinions of her own Heffter and Bluntschli.

So much for the preliminary stage of naturalization. Supposing now that the alien has arrived at the time of being fully naturalized, his next step is to declare on oath, in court, that he will support the Constitution of the United States, and that he renounces his allegiance to his former sovereign. He must also prove “to the satisfaction of” the court that he has resided continuously in the country for five years, and in the State or Territory one year, and that during that time he has borne a good character and been loyally disposed to the principles of the Constitution. He must also renounce any hereditary titles or orders of nobility that he may hold.

The courts generally require the testimony of two witnesses to the alien’s residence and character, but it is to be feared that in most cases these witnesses are men of straw, and it is generally to the clerk of the court that the question of “satisfaction” is left. In actual cases tested no trace of the witnesses could be found. (On the other hand, the judges themselves have sometimes refused to naturalize applicants, for want of proof of good character.) A remedy for this defect would perhaps be a provision in the statute that the alien’s antecedents must be vouched for in writing by two responsible house-owners of the locality, at least one month before the final papers are issued, so as to allow time for investigation, should there be any suspicious circumstances or any doubt on the part of the court. It is always in the power of the same court that confers citizenship to annul it on sufficient evidence; but it would be better to make sure of positive proof at first than to trust to negative proof later, when it is difficult to establish facts and dates perhaps several years old. It would also be well to adopt the German system of having a form of oath specified and fixed by statute, with definite penalties for perjury. The present want of this prevents prosecution in foreign countries for perjury in cases of application for United States passports. There is now no prescribed oath except for officials when sworn into office.

Aliens who have received an honorable discharge from our military service may become citizens without a previous declaration of intention, or proof of more than a year’s previous residence in the country and the possession of a good moral character. This section has been interpreted to apply to the sailors as well as the soldiers in the United States service; otherwise the former would be at a great relative disadvantage, as they would have to wait another five years after their discharge to be naturalized, unless their sea service were considered as equivalent to residence on land, which it undoubtedly is.

The merchant service has a section to itself, which however is a dead letter, and will probably be replaced by a new law now before Congress. As it stands at present, alien seamen are required to declare their intention, to prove three years’ service subsequently on a merchant vessel, and to show a good-conduct discharge. They are then “deemed citizens for the purpose of serving on board of any American merchant vessel, and for all purposes of protection.” This law was probably framed to provide against impressment on foreign ships. It would be sufficient to apply the ordinary naturalization law to such seamen, counting their years of sea service as so many years of residence on land.

The law regarding minor aliens is important, and needs alteration to avoid complications with foreign governments. An alien emigrating to this country previous to his coming of age may, when that time arrives, and after a residence of five years, be admitted to citizenship on proving good character, loyalty, and an avowed intention, for the two years next preceding, to become a citizen of the United States.

This section would seem expressly made to enable the young man liable to service abroad to come over to this country at the age of eighteen years, just before he has to report for military service, and thus escape his military duty. After five years he returns to his native land, shakes his naturalization paper in the faces of the recruiting officers, and encourages the young men in his village to emigrate likewise. He is then grossly incensed at not being allowed to remain; and the archives of our legations and the Department of State are at once encumbered with a mass of useless correspondence on the subject. A few instances of this kind bring our citizenship into contempt, and render our naturalization treaties inoperative. Many expulsions of our naturalized citizens, especially from Germany, occur every year, on the ground of “inciting to emigration,” and are based on the inalienable right of every government to expel any person whom it considers dangerous to the state. The naturalized citizens so expelled cannot be protected under the “two years” clause of our naturalization treaties with the North German Confederation. These treaties, indeed, have never been accepted in so many words by the Empire, and do not therefore apply, except by courtesy, to the important provinces of Alsace-Lorraine and Schleswig-Holstein, which furnish a large number of our young immigrants. This might possibly be remedied by refusing to allow the immigration of any young men between the ages of eighteen and twenty-one years, which would relieve us from some embarrassment with foreign governments, prevent much competition with our young men for employment, relieve our public schools, and make the parents more careful of emigrating before the elder sons had performed their military duties.

The other sections of our naturalization law are not of special importance here, though they all need revision and adaptation to the increase of immigration since they were made. The ones that I have discussed are taken from older statutes. Up to March, 1790, no laws on the subject were passed, and the act of that date merely provided that, in order to become a citizen, an alien had only to make application to a court in the place where he had resided at least one year, prove that he was a person of good character, and make oath to support the Constitution of the United States.

It is evident that such a simple mode of admission to citizenship could not long continue without being abused, and accordingly we find that this act was repealed by the one of January 29, 1795,. which required a notice of three years, at least, of the alien’s intention to become a citizen and to renounce his former allegiance. He was also obliged, as now, when finally admitted, to prove a residence of five years, to renounce his old allegiance, and to take the new allegiance oaths. This act was followed by others of April 14, 1802; March 26, 1804; March 3, 1813; March 12, 1816; May 26, 1824; May 24, 1828; and February 1, 1876. From these the present statute is compiled. The intention clause of the present law is taken from the acts of 1802, 1824, and 1876. Under the first of these acts, as we have seen, the intention had to be expressed at least three years before final admission, which is perhaps preferable to the two years now required. There was also in that act a very important provision that every alien, if of age, or, if a minor, by his parents or guardian, must make a report to the district court of the place where he arrived, or to a court of record of some other locality, of his name, age, birth-place, nation, and allegiance, the country whence he emigrated, and the place of his intended settlement. The court was required to furnish the alien with a certificate of such record for a fee of fifty cents. The alien was also required to produce this certificate when he presented himself for final naturalization. This last provision, which was reiterated even more positively in the act of 1816, it was, apparently, found impossible to carry out, for, after exemption of some classes of immigrants, it was finally repealed by the act of 1828. Its enforcement was made difficult by the neglect to require the report to be made by the immigrant immediately on landing. Had this been done, a duplicate of the original certificate, which in many cases, doubtless, was lost before five years had elapsed, could always have been obtained by application to the court where the record was made. It might be well to renew this provision, with the addition I have suggested, especially if, as recommended in several of the presidential messages, a national bureau of naturalization were established, where all applications for citizenship in the States and Territories, made out in one common form, as our passport applications all over the world now are, would be recorded. This would go far towards detecting fraudulent voters.

The act of 1813 provided that an alien must not leave the United States at all during the five years of his probation. This requirement was subsequently repealed, and the present condition of a residence for the “continuous term” of five years next preceding admission is interpreted very leniently, and in many cases is probably never inquired into at all. It would be better, however, if it were, for it is often grossly abused, as is discovered in taking the declarations of naturalized citizens applying for passports in foreign countries. It then appears that the alien’s stay in the United States has been only a series of very short visits, all of which added together would not make five years, and that he has no immediate intention of returning to this country; his only object being to escape military duty while he is engaged in business in Europe. Frauds of this kind were apparently detected, for under the act of 1828 the places of residence bad to be declared and testified to by citizens whose names were recorded. This, while intended at that time to meet those cases where the alien could not produce the intention paper required in previous acts, might well be revived by requiring the intention paper to be certified to annually by a government official, to the effect that the alien had appeared in person before him. This certification could then be reported to the central bureau, to keep the alien’s record complete from the time of landing, and obviate the necessity, at the time of final naturalization, of producing witnesses to the date of arrival and to five years of continuous residence.

I have now given the essential points in the legislation which affects the admission of aliens to citizenship. Let us now see what legislation there is for their admission into the country.

The oldest statutes regulating and limiting immigration are those of March 3, 1875, excluding felons, and August 3, 1882, for further carrying out the preceding, levying a tax of fifty cents on each immigrant, and requiring the owners of vessels to take back such persons as were not permitted to land. The next acts are those of February 26, 1885, the first of the so-called “imported labor” acts; March 3, 1891, amending the preceding one; and March 3, 1893, which embodies all the preceding ones, adds certain stringent provisions for enforcing them, and is the one now in operation.

There is no special provision in the Constitution conferring legislative power on Congress for the specific object of controlling immigration except Sec. 8, giving the power of “providing for the general welfare” of the United States, or Sec. 9, relating to the “migration or importation of persons,” which was intended to cover the slave-trade. The control of immigration comes under the “implied powers” of Congress, and was exercised a century ago in the passing of the alien law of June 25, 1798, authorizing the President to order out of the country such aliens as he might deem dangerous to the peace and safety of the United States.

The object of the act now in force is to warn foreign governments, immigrants, immigration agents and societies, and steamship and railroad companies that immigrants will not be allowed to land on our shores or enter our territory, except on the condition that, before embarking, and immediately on disembarking, they answer the most minute questions as to their age, nationality, destination, means for travel and subsequent support, family relations and ties, and physical condition. The officers of the vessel bringing them must also swear to the statements obtained by them of the emigrants before a United States consular official at the port of embarkation, accounting for all the emigrants, and, on reaching our shores, must deliver these statements, so certified, to the authorized agents of the Bureau of Immigration of the Treasury Department, who have authority to detain immigrants until thoroughly satisfied of the correctness and completeness of their statements. Officers of vessels not conforming to these requirements are fined, and immigrants not coming up to the proper standard, morally, mentally, and physically, must return to Europe at the expense of the steamship company that brings them. Certain exceptions in the contract labor class are made for official and family servants, workmen imported for new industries, and members of artistic, theatrical, and other professions. This act went into force in April, 1893.

Its effect is shown by the report for 1894 of the Superintendent of Immigration, an official appointed under the amendatory act of 1891. It appears from this report, which is deserving of careful study, that during the last fiscal year 288,020 immigrants arrived. Of these, 285,651 were landed, and 2369 were debarred and deported at the expense of the steamship lines. Of those deported, 1533 were under contract to perform labor, made previous to sailing, and 836 were returned for other reasons. In addition to this, 417 immigrants who had been landed were sent back for having become public charges within one year after their arrival. It also appears that our almshouses, hospitals, and insane asylums have been so relieved by these rigorous measures that the bureau is not advised of any cases of immigrants now in these institutions suffering from insanity or loathsome diseases, or who have become burdens from other causes.

In 1893, 440,783 immigrants arrived, a decrease of 141,044 as compared with the year 1892, during which 581,827 arrived; and the decrease in the following year was 152,763 as compared with 1893; or a total decrease in the two years of 293,807 immigrants, which is more than the total number of arrivals for the year ending June 30, 1894.

The decrease in 1893 was largely caused by quarantine regulations against cholera, and that in 1894 was largely attributable to business depression and diminished demand for labor; but with all this allowance, the decrease must be greatly due to strict inspection, prompt deportation of the prohibited classes, and the conviction on the part of both immigrants and transportation agencies that our immigration laws have been, and will continue to be, faithfully and rigorously executed. The double system of inspection before sailing and after arrival will doubtless become more effective with practice and experience, and may be aided further by some changes in the law. The number of undesirable immigrants will continue to decrease, and those who are allowed to remain will prove to be a more desirable class of citizens for amalgamation with our population. As regards the competition with foreign labor, we find also that in 1892, out of 581,827 immigrants only 932 alien contract laborers were returned; in 1893, out of 440,783 immigrants 516 were returned; and in 1894, out of 288,020 immigrants 2369 were returned; thus proving the increasing benefit of the law to the working classes of the United States.

In face of this report of the Superintendent of Immigration, it is not evident why the Immigration Restriction League, in its pamphlet entitled The Present Aspect of the Immigration Problem, should say, “This new law adds a little more ‘red tape,’ but as it does not increase the number of the excluded classes, it cannot be expected to diminish sensibly the quantity or greatly improve the quality of our immigration.”

Now, if this legislation has, as we believe, so conclusively proved the necessity and possibility of limiting the number and determining the quality of immigrants, why cannot the same machinery be utilized for controlling and limiting the naturalization of aliens? Why cannot the Superintendent of Immigration be made also Superintendent of Naturalization? As I have suggested above, let all the immigrants who are allowed to land be furnished with a certificate to that effect, stamped with the date of their landing, and retaining the number which they had on the ships immigrant list, to provide against similarity of names. Then let all such immigrants as intend to become citizens make their declaration of intention at once before some United States official, whose attestation would be equivalent to that of a clerk of a court. Let that attestation be indorsed on the previous landing certificate. Then let the alien be required to present this certificate, so indorsed, before some United States official, even if it be only a local postmaster, once a year, to be stamped and dated, and indorsed again by two responsible witnesses to his good character and actual residence during the year, as provided in the law of 1828. Let this attestation be reported by means of printed blank forms to the superintendent. This should be repeated annually for five years. Then when the alien presents himself for final naturalization, which should be before some court, either let him be required to produce his landing certificate, as under the law of 1802, with the intention indorsement and the five annual residence indorsements, or, if that paper be lost, let him apply to the superintendent’s office for a certificate that he has complied with the law at all the stages of his residence in the country. This should be required long enough before the final naturalization for the court to be thoroughly satisfied that the alien is a fit candidate for citizenship. Then he should receive his final paper; otherwise not. Each of the States and Territories should also be urged to conform its laws of local citizenship to the requirements of the national law; and at any rate, no alien who is not fully naturalized should be allowed to sit on a jury, or to vote for President of the United States, for a member of Congress, or for any judicial official. As long as aliens are allowed to live among us with all the rights and privileges of native citizens, and States and Territories are allowed to decide who are citizens, and when and how they can vote, the provision of the Constitution that Congress has power to establish a uniform rule of naturalization would seem to be a farce, and our country will continue to be subjected to all the present abuses of the franchise, and to the dishonest and wasteful mismanagement of our municipal affairs which makes us a by-word among nations, and a mortification to the better elements of our population.