¹ The United States of America, Petitioner, v. Rosika Schwimmer, 49 S. Ct. 448 [Advance Sheets], opinion May 27, 1929; on writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit. See text of this opinion in this Journal, Vol. 23, No. 3,pp. 652-658 (July, 1929); also in The United States Daily, Washington, D. C., May 28, 1929, Vol. IV, No. 74, pp. 4 and 12.

² For a detailed statement of this case, see current note, “ Supreme Court Holds Madam Schwimmer, Pacifist, Ineligible to Naturalization,” by the writer, in this Journal , Vol. 23, No. 3 (July, 1929), pp. 626-632.

³ Subdiv. 4, Sec. 4, Act of June 29, 1906, 34 Stat. 598; U. S. C. t. 8, Sec. 382. This subdivision has been amended by Sec. 6 (b), Act of March 2, 1929, 45 Stat. 1513-1514; U. S. C. Sup. III, t. 8, Sec. 382, effective July 1, 1929. See text of the latter statute in Supplement to this Journal , Vol. 23, No. 2 (April, 1929), pp. 115-116.

⁴ Subdiv. 3, Sec. 4, Act of June 29, 1906, 34 Stat. 597-598; U. S. C. t. 8, Sec. 381.

The following provisions refer specifically to the applicant's “ beliefs” : “ . . .no person who disbelieves in or who is opposed to organized government, or who is a member of or affiliated with any organization entertaining and teaching such disbelief in or opposition to organized government, . . . shall be naturalized or be made a citizen of the United States.”(Italics supplied.) Sec. 7, Act of 1906, supra, 34 Stat. 598-599; U. S. C. t. 8, Sec. 364.

“ The petition [for naturalization] shall set forth that he [the petitioner] is not a disbelieverin or opposed to organized government, or a member of or affiliated with any organization or body of persons teaching disbelief in or opposed to organized government, a polygamist or believer in the practice of polygamy, . . . ” (Italics supplied.) Par. 2, Subdiv. 2,Sec. 4, Act of 1906, supra, 34 Stat. 597; U. S. C. t. 8, Sec. 379.

The statute requires the sworn declaration of intention to become a citizen to include the allegations, “ I am not an anarchist; I am not a polygamist nor a believer in the practice of polygamy; . . . ” and the sworn petition for naturalization to include the allegations, “ I am not a disbeliever in or opposed to organized government or a member of or affiliated with any organization or body of persons teaching disbelief in organized government. I am not a polygamist nor a believer in the practice of polygamy. I am attached to the principles of the Constitution of the United States, and it is my intention to become a citizen of the United States and to renounce absolutely and forever all allegiance and fidelity to any foreign prince,potentate, state, or sovereignty, and particularly to —— , of which at this time I am a citizen (or subject), and it is my intention toreside permanently in the United States.”(Italics supplied.) Sec. 27, Act of 1906, supra, 34 Stat. 604; U. S. C. t. 8, Sec. 409.

⁵ The nature of this article, which attempts to present a cross-section of prevailing judicial opinion, requires the frequent use of quoted excerpts from the reported cases in order that the precise attitude of the courts may be understood. The decisions include those reported up to August 1, 1929. While the Schwimmer opinion, both because of its source and reasoning, is outstanding, it was preceded by a considerable number of other reported cases involving some phase of the question here under discussion.

Petitions for naturalization have been denied (usually without reported opinions) on grounds growing out of participation by the United States in the World War; as follows:

Year & Ground of denial of petition for naturalization & Number

1920 Pleaded alienage to avoid military service..................................................... 245

“ Not attached to Constitution.......................................................................... 800

1921 Claimed exemption from military service.................................................... 1,736

1922 Claimed exemption from military service....................................................... 10,288

1923 Unfavorable draft status................................................................................... 6,162

“ Disloyalty.......................................................................................................... 288

“ Slackers.......................................................................................................... 675

1924 Draft evasion, disloyalty, slackers................................................................... 5,001

1925 Unfavorable draft status.................................................................................. 3,261

“ Disloyalty........................................................................................................... 38

1926 Unfavorable draft status................................................................................... 1,569

“ Disloyalty........................................................................................................... 26

1927 Unfavorable draft status.................................................................................. 577

“ Disloyalty........................................................................................................... 5

1928 Unfavorable draft status.................................................................................. 399

“ Disloyalty........................................................................................................... 77

Total.............................................................................................................31,147

Above data from annual reports, Commissioner of Naturalization (fiscal years ended June 30), Washington, Government Printing Office; tables as follows: 1920, No. 2, note, p. 6; 1921, No. 6, note 2, p. 6; 1922, No. 6, notes 1 to 4, inclusive, p. 7; 1923, No. 12, notes 1 to 10, inclusive, p. 10; 1924, No. 6, p. 40; 1925, No. 7, p. 43; 1926, No. 8, p. 40; 1927, No. 8, p. 36; 1928, No. 9, p. 29. Figures for year 1929 are not yet available. Such petitions as may have been denied upon similar grounds during the fiscal years 1917, 1918 and 1919 May have been reported in those years under one of three other headings in the tables: “ Immoral character,” “ Declaration of intention invalid,” or “ Miscellaneous.”

⁶ Sec. 4, Selective Service Act of May 18, 1917; 40 Stat. 76, 78, provided in part: “ That the Vice President of the United States, the officers, legislative, executive, and judicial, of the United States and of the several States, Territories, and the District of Columbia, regular or duly ordained ministers of religion, students who at the time of the approval of this Act are preparing for the ministry in recognized theological or divinity schools, and all persons in the military or naval service of the United States shall be exempt from the selective draf herein prescribed; and nothing in this Act contained shall be construed to require or compel any person to serve in any of the forces herein provided for who is found to be a member of any well-recognized religious sect or organization at presentorganized and existing and whose existing creed or principles forbid its members to participate in war in any form and whose religious convictions are against war or participation therein in accordance with the creed or principles of said religious organizations, but no person so exempted shall be exempted from service in any capacity that the President shall declare to be noncombatant;...”

⁷ Ch. III (VII), Noncombatants, par. 2, pp. 58-62, Second Report, Provost Marshal General, Washington, Government Printing Office (1919).

⁸ Ibid., p. 58.

⁹ Secs. 1 and 7, Act of May 26,1926, 44 Stat. 654-655; U. S. C. Sup. III, t. 8, Secs. 241 and 392a. This act expired by its terms at the end of two years. The substance of it was reenacted by Sec. 3, Act of March 4, 1929, 45 Stat. 1546; U. S. C. Sup. III, t. 8, Sec. 392a.

¹⁰ In re Roeper (D. C. Dela., Morris, DJ., 1921), 274 Fed. 490, 491.

¹¹ In re D— (D. C. N. D. Ohio, W. D., Killits, DJ., 1923), 290 Fed. 863, 864.

¹² State ex rel. Weisz v. District Court of 16th Judicial Dist. for Garfield County el al.(Supreme, Poorman, CC., 1921), 61 Mont. 427, 431; 202 Pac. 387.

¹³ Ibid., p. 433.

¹⁴ For the provision forever debarring from citizenship certain alien declarants during the World War, see Ch. XII, Sec. 4, Act of July 9, 1918, 40 Stat. 845, 885; U. S. C. t. 8, Sec. 366: “ . . . That a citizen or subject of a country neutral in the present war who has declared his intention to become a citizen of the United States shall be relieved from liability to military service pon his making a declaration, in accordance with such regulations as the President may prescribe, withdrawing his intention to become a citizen of the United States, which shall operate and be held to cancel his declaration of intention to become an American citizen and he shall forever be debarred from becoming a citizen of the United States.” This provision was duplicated in Sec. 1, Act of August 31, 1918, 40 Stat. 955. The procedure under the quoted provision is set forth in Selective Service Regulations, 2nd ed., September , 1918, Washington, Government Printing Office (1918), Sec. 79, Rule XII (1), p. 55; Sec. 117 1/2, pp. 80-82; and Secs. 325-326, pp. 279-280.

¹⁵ The United States of America, Petitioner, v. Rosika Schwimmer, supra.

¹⁶ Schwimmer v. United States (C. C. A., 7th Cir., Anderson and Alschuler, CJJ., and Baltzell, DJ., 1928), 27 F. (2d) 742.

¹⁷ H. R. 3547, 70th Cong., 1st Sess., introduced May 29,1929, by Mr. Griffin of New York, and referred to the Committee on Immigration and Naturalization

¹⁸ S. 1506, 70th Cong., 1st Sess., introduced June 14, 1929, by Mr. Steck, of Iowa, and referred to the Committee on Immigration.

¹⁹ The Selective Service Act provided in part as follows: “ . . . Such draft as herein provided shall be based upon liability to military service of all male citizens, or male persons not alien enemies who have declared their intention to become citizens, between the ages of twenty-one and thirty years, both inclusive, and shall take place and be maintained under such regulations as the President may prescribe not inconsistent with the terms of this Act. . . .” Sec. 2, Act of May 18, 1917; 40 Stat. 76, 77-78.

As to the classes of aliens subject to the draft, see also Ch. XII, Secs. 1, 2, 3 and 4, Act of July 9, 1918; 40 Stat.- 845, 884-885. No attempt, however, is made in this article to determine the liability of aliens to military service under the draft. In this latter connection, see the comprehensive treatment of the subject under the title, “ Classification Principles and Results, (I) Alienage,” Ch. IV, pp. 86-108, inclusive, Second Report, Provost Marshal General, Washington, Government Printing Office (1919). See also the very full treatment by Sterling E. Edmunds, in article, “ Aliens and the Draft,” in St. Louis Law Review, St. Louis, Mo., Vol. V, No. 1 (March, 1920), pp. 23-36.

While nondeclarant aliens were not subject to the draft under the terms of the Selective Service Law, the conventions entered into between the United States and Great Britain, Greece, France, and Italy, authorized the reciprocal drafting of both declarant and nondeclarant nationals. Ratifications were exchanged as follows: as to Great Britain, July 30, 1918 (40 Stat. 1620); as to Canada, July 30,1918 (40 Stat. 1624); as to Greece, November 12, 1918 (40 Stat. 1637); as to France, November 8, 1918 (40 Stat. 1629); and as to Italy, November 12, 1918 (40 Stat. 1633). The conventions were printed in the Supplement to this Journal as follows: Canada, Vol, 12, p. 270; France, Vol. 13, p. 141; Great Britain, Vol. 12, p. 265; Greece, Vol. 13, p. 144; Italy, Vol. 13, p. 147. The conventions provided that alien residents should be allowed an opportunity to enlist in the forces of their own governments, and that, failing to do so within a prescribed time, they should become subject to the selective draft regulations of the country in which they were then residing.

²⁰ A “ declarant ” is a person who has made the formal declaration of intention to become a citizen of the United States required of practically all aliens before filing the petition for naturalization. A nondeclarant” is a person who has not made such declaration.

²¹ In re Shanin (D. C. Mass., Morton, DJ., 1922), 278 Fed. 739, 740.

²² In re Shanin (D. C. Mass., Morton, DJ., 1922), 278 Fed. 740-741.

²³ In re Bevelacqua; In re Gitelman et al.; In re Tsaler (D. C. Mass., Lowell, DJ., 1924),295 Fed. 862, 863.

²⁴ Joint Res. of July 2, 1921; 42 Stat. 105-107.

²⁵ In re Bevelacqua et al., supra, p. 864

²⁶ Tutun v. United States (C. C. A., 1st Cir., Bingham, Johnson, and Anderson, CJJ.,1926), 12 F. (2d) 763, 764.

²⁷ In re Levy and five other cases (D. C. W. D. Texas, El Paso Div., Smith, DJ., 1922),278 Fed. 621, 622.

²⁸ Ibid., p. 623.

Another court presents a comprehensive review of the naturalization status of aliens under the Selective Service Law. The government had objected to the naturalization of a number of aliens who had claimed exemption, looking upon such claims as evidence conclusive in bar of naturalization. The court decided, among other points, that resident nonenemy aliens who had not declared their intention to become citizens, were not disqualified for citizenship by affirmative answers in their questionnaires claiming such exemption. This conclusion was based on the fact that such aliens were excluded from service by the Selective Service Law. In re Naturalization of Aliens Who Claimed Exemption from the Draft or from Military Service (D. C. E. D. Wis., Geiger, DJ., 1924), 1 F. (2d) 594, 597, 601.

²⁹ Petition of Escher (D. C. S. D. Texas, Houston, Hutcheson, DJ., 1922), 279 Fed. 792,793. The real basis of exclusion from naturalization, however, is found in the fact that thepetitioner had not, during the five years he counted upon to complete his probation, been at all times desirous of entering into citizenship, waiting only for the “ accolade.” The court felt that Escher's intention to become a citizen did not begin until he had filed his declaration,of intention.

³⁰ Ibid., p. 793.

³¹ In re Linder (D. C. S. D. Calif., S. D., Bledsoe, DJ., with James, DJ., concurring, 1923),292 Fed. 1001, 1002.

³² Ibid., p. 1002.

In a decision already referred to, nondeclarant enemy aliens who claimed exemption were held not disqualified for citizenship, such persons being specifically excluded from any duty or opportunity to serve by the Selective Service Law. In re Naturalization of Aliens, etc.,supra. As to refusal to accept alien enemy for service, see Selective Service Regulations,supra, Sec. 79, Rule XII (e). Notes 1 and 2, p. 51.

³³ In re Pitto; In re Kirby; In re Teuscher (D. C. Ore., Wolverton, DJ., 1923),293 Fed.200,201.

³⁴ In re Rubin (D. C. E. D. Mich., S. D., Tuttle, DJ., 1921), 272 Fed. 697, 698.

³⁵ In re Tomarchio (D. C. E. D. Mo., E. D., Dyer, DJ., 1920), 269 Fed. 400.

³⁶ In re Silberschutz (D. C. E. D. Mo., E. D., Dyer, DJ., 1920), 269 Fed. 398. [See infra.]

³⁷ In re Tomarchio, supra, p. 406.

³⁸ In re Sigelman (D. C. E. D. Mo., E. D., Faris, DJ., 1920), 268 Fed. 217, 218, 219.

³⁹ In re Norman (D. C. Mont., Bourquin, DJ., 1919), 256 Fed. 543, 544.

⁴⁰ In re Miegel (D. C. E. D. Mich., S. D., Tuttle, DJ., 1921), 272 Fed. 688, 696. [See infra.]

Declarant nonenemy resident aliens who made claims of exemption from military service on account of noncitizenship, weregranted naturalization over objection. It was held that as they were not entitled under the draft law and regulations to exemption, their claim there for was ineffective. In re Naturalization of Aliens, etc., supra.

⁴¹ In re Loen (D. C. W. D. Wash., N. D., Neterer, DJ., 1919), 262 Fed. 166.

⁴² Ibid., pp. 167-168.

⁴³ Hauge v. United States (C. C. A., 9th Cir., Gilbert and Hunt, CJJ., and Rudkin, DJ., 1921), 276 Fed. III , 113.

⁴⁴ In re Trachsel (D. C. S. D. Ohio, W. D., Peck, DJ., 1921), 271 Fed. 779. 1511 Stat. 587, 589.

⁴⁶ In re Trachsel, supra, p. 780.

⁴⁷ In re Gustavson (D. C. S. D. Calif., S. D., James, DJ., 1924), 300 Fed. 251.

⁴⁸ Supra.

⁴⁹ In re Pitto; In re Kirby; In re Teuscher (D. C. Ore., Wolverton, DJ., 1923), 293 Fed.200.

⁵⁰ In re Siem (D. C. Mont., Bourquin, DJ., 1922), 284 Fed. 868, 869, 870-872.

⁵¹ United States v. Siem (C. C. A., 9th Cir., Gilbert, Ross and Rudkin, CJJ., 1924), 299 Fed. 582, 583-584.

⁵² In reSilberschutz (D. C. E. D. Mo., E. D., Dyer, DJ., 1920), 269 Fed. 398, 399-400.

⁵³ In re Pitto; In re Kirby; In re Teuscher, supra, p. 202.

⁵⁴ In re Miegel (D. C. E. D. Mich., S. D., Tuttle, DJ., 1921), 272 Fed. 688. [See supra.]

⁵⁵ Ibid., pp. 692, 694, 695, 697.

⁵⁶ In reNaturalization of Aliens, etc., supra.

⁵⁷ This article does not purport to discuss the subject of freedom of speech. On that subject, see “ Freedom of Speech in War Time,” an exhaustive article by Chafee, Zechariah Jr.,,Harvard Law Review, Vol.32, No.8 (June, 1919), pp. 932-973.CrossRefGoogle Scholar

There had been in operation for some time a statutory rule of evidence by which subsequent acts might be accepted as evidence of a prior status. The taking up of permanent residence in his native or any other foreign country by a naturalized citizen within five years after the issuance to him of a naturalization certificate was made prima facie evidence of a lack of intention on the part of such applicant to become a permanent citizen at the time of his application. Cancellation of his naturalization for fraud was authorized in the absence of countervailing evidence to overcome the adverse presumption. Par. 2, Sec. 15, Act of June 29, 1906, 34 Stat. 601; U. S. C. t. 8, Sec. 405.

The Supreme Court of the United States had sustained the validity of this provision, saying: “ Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue is but to enact a rule of evidence, and quite within the general power of government. Statutes, National and State, dealing with such methods of proof in both civil and criminal cases abound, and the decisions upholding them are numerous. . . .” Luria v. United States (1913), 231 U. S. 9, 25, quoting from Mobile &c. Railroad Co. v. Tumipseed (1910), 219 U. S. 35, 42.

This principle was made use of later by the naturalization courts in determining the effectiveness of the purported renunciation of former allegiance of the naturalized persons whose loyalty was in question. In applying the principle, the Circuit Court of Appeals for the Seventh Circuit, in the Glaser case, affirmed the action of the District Court cancelling Glaser's naturalization. It was charged that he had deceived the naturalization court as to his belief in organized government and his adherence to the principles of the Constitution of the United States. The appellate court said: “ Subsequent acts and declarations of appellant were properly admitted as tending to disclose his state of mind when he signed his petition for naturalization. On the whole, we regard the evidence as adequate to sustain the finding of the trial court.” Glaser v. United States (C. C. A., 7th Cir., Baker, Alschuler, and Evans, CJJ., 1923), 289 Fed. 255.

⁵⁸ United States v. Wursterbarth (D. C. N. J., Haight, DJ., 1918), 249 Fed. 908, 910.

⁵⁹ Schurmann v. United States (C. C. A., 9th Cir., Gilbert, and Hunt, CJJ., and Wolverton,DJ., 1920), 264 Fed. 917, 920.

⁶⁰ United States v. Kramer (C. C. A., 5th Cir., Walker, CJ., and Foster and Grubb, DJJ.,1919), 262 Fed. 395.

⁶¹ Ibid., p. 397.

⁶² United States v. Herberger (D. C. W. D. Wash., N. D., Cushman, DJ., 1921), 272 Fed. 278.

⁶³ Ibid., p. 291. The same judge had denied a motion to dismiss a similar suit naturalization, granted in 1888, was attacked by the government on the same ground. The court said of defendant in that case: “ The language charged to have been used by him, standing by itself, tends to show loyalty and allegiance to Germany, rather than to the United States. Such positive expressions of alien allegiance repeatedly made during a year's time,uncontradicted and unexplained, give rise to a presumption of Borne continuity and duration of existence. . . . ” United States v. Danner (D. C. W. D. Wash., S. D., Cushman, DJ.,1918), 249 Fed. 989, 990.tt

⁶⁴ Rowan v. United States (C. C. A., 9th Cir., Hunt, Rudkin, and Dietrich, CJJ., 1927), 18 F. (2d) 246, 248.

⁶⁵ United States v. Woerndle (C. C. A., 9th Cir., Gilbert, Morrow, and Rudkin, CJJ.,1923), 288 Fed. 47.

⁶⁶ United States v. Woerndle (C. C. A., 9th Cir., Gilbert, Morrow, and Rudkin, CJJ.,1923), 288 Fed. 47, p. 49.

⁶⁷ Subd. 3, See. 1, Act of January 29, 1795; 1 Stat. 414.

⁶⁸ Maney v. United States (1928), 278 U. S. 17, 22.

⁶⁹ Act of June 29, 1906, 34 Stat. 596; U. S. C. t. 8; as amended.

⁷⁰ United States v. Ginsberg (1917), 243 U. S. 472, 473.

⁷¹ Johannessen v. United States (1912), 225 U. S. 227, 240, quoting with approval from United States v. Spohrer (Judge Cross), 175 Fed. 440, 442.

⁷² United States v. Ginsberg, supra, pp. 474, 475.

⁷³ United States v. Manzi (1928), 276 U. S. 463, 467.

⁷⁴ The United States of America, Petitioner, v. Rosika Schwimmer, supra, 49 S. Ct. 450.[Advance Sheets.]