Whether it is called an instinct, native in animal psychology, or an inheritance of mental habit and tradition handed down from remote times of family and tribal necessity, the fact is that we all regard the stranger with a suspicion, diminishing perhaps as we broaden with years, experience, and culture, but never entirely lost. Exceedingly few are those great souls who have no trace of it. Especially if the stranger wears a differently colored skin, expresses his thought by unfamiliar vocal sounds and inflections, practices customs of clothing, eating, marriage, religion, different from our own; lives in houses of peculiar shape and use—these things all partake, for the average person, of the outrageous and the dangerous, and usually subtly offend those habits of group taste which we somehow feel to have their roots in essential morality and the nature of things.
From time immemorial, all states and communities have laid special disabilities and limitations upon the alien—all based ultimately upon this habitual suspicion of those who belong to another tribe or clan. As Edwin M. Borchard says:[1]
The legal position of the alien has in the progress of time advanced from that of complete outlawry, in the days of early Rome and the Germanic tribes, to that of practical assimilation with nationals, at the present time. In the Twelve Tables of Rome, the alien and enemy were classed together, the word “hostis” being used interchangeably to designate both. Only the Roman citizen had rights recognized in law.... The Germanic tribes, in the early period, were hardly more hospitable to the alien than were the Twelve Tables of the Romans.
With the extension of trade and travel, and especially with the upgrowth of the feudal system, however, the utility of intercourse with peaceable strangers, and the advantage of adding their personal prowess, capacity, and assets to the resources of the community, came to be more and more recognized, and the stranger within the gates was accorded an increasing measure of tolerance, not to say welcome. But this tolerance was at best of a very limited character; practically, it was not much more than a rigid systematizing of the ways of making the immigrant useful and contributory. It is not the province of this report to dilate upon this branch of the subject. Suffice it to say that to this day, over nearly the whole earth, the alien is still subject to marked limitations, and that the exploitation of him is neither a modern nor an American invention.
As for political rights, let alone any degree of participation in the functions of government, no nation ever has contemplated the possibility of such a thing—until a few of the American states, clamoring for population from any corner of humanity, offered virtually full political participation to the alien immediately upon his mere declaration of intention to apply for citizenship—some day! Until the excitement of the World War brought public attention to the whole question of the position and influence of the foreign born in America, this anomaly remained in force in at least a dozen states: Alabama, Arkansas, Arizona, Indiana, Kansas, Michigan, Missouri, Nebraska, North Dakota, South Dakota, Texas, and Oregon. Since then it has been abolished by constitutional amendment or other legislation in all but two—Arkansas and Missouri.[2]
LEGAL POSITION OF THE ALIEN
Thus far, from the point of view of international law and custom, it has been left to each nation to regulate the privileges of, and the restrictions upon, the alien, with the exception that certain nations strong enough to enforce it have established in certain countries held by them to be less than fully “civilized,” the principle of extra-territoriality, by virtue of which their nationals must be tried before special tribunals supervised by representatives of their own nation. Generally speaking, and subject to the rule that aliens of all races must be treated alike under processes of law, a nation may deprive the alien of liberty of action, may prohibit or restrict his ownership of property, may forbid or delimit his employment in certain kinds of work or enterprises, and may expel and deport him, at its pleasure. In other words, the status and rights of an alien are determined almost absolutely by the municipal law in the country in which he is domiciled. The only limitations upon this power are those established by treaties, and by the general spread of humane ideas, and the growing feeling—discouraged, perhaps, but by no means halted, by the World War—of the solidarity of the human race.
In the United States, the rights of the alien include personal protection, protection of property already acquired, and the use of all means of redress and judicial protection enjoyed by citizens.[3]
The alien’s plight in this country has been complicated by the peculiar relation subsisting between the Federal government and that of the individual states. For it has frequently happened that the government of the United States has been practically unable to enforce the rights of aliens created by treaty when traversed by state law. On more than one occasion threatening diplomatic situations have been created by the existence of this condition.
This ancient feeling toward the alien, and the treatment, legal, extra-legal, and illegal, to which he has been subjected in respect of his person, his family, and his property, undoubtedly have affected substantially his sentiments toward this country. Disillusionment about the atmosphere and ways of the “Land of the Free” is responsible for our loss of the citizenship of many desirable immigrants. The man who will not submit quietly to injustice is of the material of which our best citizens from the beginning have been made. The kind of aliens who can accept without resentment some of the things to which those of foreign birth and speech have been subjected within our borders during very recent times, are not fit to be Americans![4]