In the great bulk of practice, however, it has simmered down to the question of “intention.” Reasonably carried out, as in other matters, it meets the average case. If the petitioner always, and everywhere, during the five years maintained his intention in good faith to become a citizen, and especially if he preserved a specific residence, both the courts and the Naturalization Service on the whole have waived the literal words of the requirement. But within that general situation there are degrees. There are judges who will permit an absence as long as two years, if “intention” is clear; some set a limit of one year, others of six months. Generally speaking, any absence in excess of six months is viewed with suspicion.
There are two reasons, as the law stands, for insistence upon residence virtually continuous. In the first place there is the wording and evident intention of the law, which must be obeyed in spirit, anyway. In the second place, in case of any protracted absence, the witnesses hardly can know what he has been about, and certainly cannot swear, as they must under the statute, to the fact of continuous residence. If the petitioner has been out of the ken of his witnesses in some other part of the United States, he can prove good conduct and American residence by depositions; but the law does not contemplate depositions regarding his conduct on any foreign soil, however legitimate his reason for being there. And if he has been in other parts of the same state, he cannot prove anything about it, by witnesses, depositions, or otherwise.
THE ABSURDITY OF THE “INCOMPETENT WITNESS”
This brings us to one of the most extraordinary provisions of the law—that regarding the proof of eligibility by witnesses and depositions—a provision responsible for the exclusion of thousands of perfectly fit persons, and for a vast deal of wholly unnecessary hardship and injustice.
During the eleven years 1908–1918 inclusive, according to the statistics given in the annual reports of the Commissioner of Naturalization, of 107,484 petitions for naturalization denied, more than one in four—28,262, or 26.3 per cent—were denied on the ground of “incompetent witnesses.” The percentage in many states is very much larger than that: Illinois, 38.3; New Jersey, 37.2; Michigan, 36.5; Iowa, 36.4; Nebraska, 36.0; Kansas, 35.9; Colorado, 32.8; Arkansas, 32.4; Oregon, 32.2; North Carolina, 31.9; Indiana, 31.1; Wisconsin, 31.0; Missouri, 29.5; New Mexico, 29.3; Kentucky, 28.8; Montana, 28.4; Utah, 27.0. The low states in this respect are few—Rhode Island, 5.9; New Hampshire, 8.0; Connecticut, 9.0; Vermont, 9.1; Massachusetts, 9.2; South Carolina, 11.4; Florida, 11.5.
Now, what does this mean in human terms? To begin with, a petitioner for naturalization may not prove his eligibility, as he would prove any other set of facts in court, by such an exhibit of evidence of various kinds as would satisfy a reasonable judge or jury. He cannot bring a group of neighbors who have known him; his employer, his priest or pastor; the village school-teacher who teaches his children; a sheaf of affidavits from people who have known him in various places where he has lived in the state. His exhibit of evidence is rigidly and most absurdly restricted, and the restriction is of no benefit to anybody—except, perhaps, the Naturalization Service in somewhat simplifying their work of investigation.
His petition must be accompanied by the affidavits of precisely two witnesses, who must accompany him personally when he files his petition, and must accompany him again, ninety days or more later, when his case comes before the court for hearing. Two, only two, and the same two. Only in case one of them dies, or moves out of the jurisdiction of the court, is he allowed to substitute. Each witness must be a native or naturalized citizen of the United States, and must swear to that fact. And each must swear that he has known the petitioner during the whole period of five years of residence within the state, or of one year in the state if he lived previously in other states, and satisfy the court that he has seen the petitioner frequently enough to know that his residence has been continuous and his conduct such as to warrant his admission to citizenship. Some judges require the witnesses to have seen the petitioner virtually every day, “constantly, as a neighbor”; “at least once a week,” for five years. The examination of the witnesses is frequently more severe, if possible, than that of the petitioner himself; for the law requires them to be “credible.” If a witness can be shown by the naturalization examiner to be of dubious moral character, the court probably will deny the petition verified by him, and leave the petitioner with only one witness. He must have two, and he cannot substitute a better one!
In a state which has allowed aliens to vote upon their declaration of intention, innumerable foreign-born persons have in good faith believed themselves to be citizens. If such a person appears as a witness for a petitioner, the petition is denied—properly enough, except that the petitioner might easily produce a substitute who could not be objected to; but no, he must have not only exactly two, but the same two, throughout the proceeding. Or, if one or both of these particular witnesses turn out to be honestly mistaken in thinking they have known the petitioner for the whole five years; if, for example, it turns out that they could not have known him more than four years and nine months—the petition is denied; “incompetent witnesses.” In the fiscal year ending June 30, 1918, more than 2,300 petitions were denied for this cause, and it is safe to say that, in a very large majority of the cases, the witnesses were acting in perfect good faith.
The practice cuts very close. In re Welch (159 Fed., 1014), decided in 1908, reports a case in which it was shown that a witness had not known the petitioner for five years at the time of the filing of the petition, but had known him for five years by the time the hearing was had. In that case the court permitted amendment of the date of the petition, but required a fresh posting.
Congress took note of the difficulty an alien might labor under if he were obliged to move about from state to state during the five years’ period, and provided that four years of the time, in the event of inability to bring witnesses who could swear to knowledge of the whole period, the applicant might prove residence, etc., in other states by deposition. This helps a good deal, as far as it goes; but in any event the last year, the year of residence required to be within the state where the petition is filed, must be covered by “two witnesses”—two, only two, and the same two. Suppose the case (and there have been many such) of a Methodist minister, an Englishman if you please, who, during the five years preceding his petition, has been assigned to two or more pastorates within the same state at points more or less distant from each other. He could produce almost any desired array of witnesses to cover his residence in each of the several places, and affidavits galore; but he must not. There is virtually no chance at all of his being able to find two, only two, and the same two, who can testify to personal, neighborly knowledge of his residence in all places. What, then, of an average immigrant who has been obliged to shift about in search of employment, resident all through the year in the state, but never staying long enough in one place to establish intimate relations with possible witnesses under such restrictions?