raised the question in the court of naturalization and opposed it. The court says (concerning the questions presented):

"Whether an order entered in a proceeding to which the United States became a party under section 11 is res judicata as to matters actually litigated therein, so that the certificate of naturalization cannot be set aside under section 15, as having been 'illegally procured.'

"This question, discussed and left undecided in Johannessen v. United States, 225 U. S. 227, 238, is, in effect: Do section 11 and section 15 afford the United States alternative or cumulative means of protection against illegal or fraudulent naturalization under the act of June 29, 1906?

"The remedy afforded by section 15 for setting aside certificates of naturalization is broader than that afforded in equity, independently of statute, to set aside judgments (United States v. Throckmorton, 98 U. S. 61; Kibbe v. Benson, 17 Wall. 624); but it is narrower in scope than the protection offered under section 11. Opposition to the granting of a petition for naturalization may prevail, because of objections to the competency or weight of evidence or the credibility of witnesses, or mere irregularities in procedure. A decision on such minor questions, at least of a state court of naturalization, is, though clearly erroneous, conclusive even as against the United States if it entered an appearance under section 11. For Congress did not see fit to provide for a direct review by writ of error or appeal. But where fraud or illegality is charged, the act affords, under section 15, a remedy by an independent suit in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit.' If this suit is brought in the federal District Court, its decision will also be subject, under the general law, to review by the Circuit Court of Appeals, and, on certiorari, by this court. Such an independent suit necessarily involves considerable delay and expense; and it may subject the individual to great hardship. On the other hand, a contest in the court of naturalization is usually disposed of expeditiously and with little expense. The interest of all concerned is advanced by encouraging the presentation of known objec tions to naturalization at the earliest possible stage of the proceedings; so that the petitioner may, if the defects are remediable, remove them, and, if not, may adopt, without delay, such course, if any, as will ultimately entitle him to citizenship. It would have defeated this purpose to compel the United States to refrain from presenting any objection, or the objection of illegality, in the court of naturalization, unless it is willing to accept the decision of that court as final.

"It was the purpose of Congress, by providing for appearances under section 11, to aid the court of naturalization in arriving at a correct decision and so to minimize the necessity for independent suits under section 15. In most cases this assistance could be given best by an experienced examiner of the Bureau of Naturalization familiar with the sources of information. Section 11, unlike section 15, does not specifically provide that action thereunder shall be taken by the United States district attorneys; and if appearance under section 11 on behalf of the government should be held to create an estoppel, no good reason appears why it should not arise equally whether the appearance is by the duly authorized examiner or by the United States attorney. But in our opinion section 11 and section 15 were designed to afford cumulative protection against fraudulent or illegal naturalization. The de cision of the Circuit Court of Appeals is therefore reversed."

245 U. S. at pages 325-327, 38 Sup. Ct. at page 121 (62 L. Ed. 321).

Among the following are cases which the defendant contends require a different determination than that which has been reached by the court: It is true that in U. S. v. Albertini (D. C.) 206 Fed. 133, the court said that, in order for a certificate to be "illegally procured," it must have been "issued by a court without jurisdiction or in violation of the law's procedure, without a petition or witnesses, or notice, or hearing, for example." (206 Fed. at page 135), but in that case the

(272 F.)

court canceled the certificate of naturalization on the ground of fraud in its procurement because the petitioner had concealed from the court. upon his naturalization the fact of his abandonment of his wife and family. He had, when asked if he was married, falsely denied it. The trial court concluded that the abandonment during the five years preceding the naturalization was immoral; but, notwithstanding that the finding of this fact was a matter intrinsic to the record, the court having reached this determination, it is apparent that the language above quoted probably was not considered with the same seriousness as it would have been if it had been determinative of the cause.

In U. S. v. Luria (D. C.) 184 Fed. 643-646, the court, in speaking of the statutory words "illegally procured," says the words mean "procured by subornation or some other illegal means used to impose upon the court," but in this case the conclusion reached by the court shows that such statement was not in direct line with the decision, but used in a more or less general discussion of the law. The ruling was that the government, having shown that the defendant had, within five years after naturalization, taken up his permanent residence in South Africa, under the statute, such fact was prima facie evidence of fraud in the procurement of his naturalization, and, as there was no countervailing evidence, the certificate was canceled for such fraud. Such being the record in that case, it is obvious that there was no need to determine the general scope of the words "illegally procured."

Counsel has also cited U. S. v. Ness (D. C.) 217 Fed. 169, to the point that an order of naturalization is res judicata. This decision supports him in his position, but it was reversed by the Supreme Court in 245 U. S. 319, 38 Sup. Ct. 118, 62 L. Ed. 321.

In U. S. v. Andersen (D. C.) 169 Fed. 201, the cancellation of a certificate was refused, although a state court sitting in a county other than that of petitioner's residence had naturalized him. But in that case there were two counties in the judicial district, one the county of the petitioner's residence, and the other the one in which the court. was sitting when it naturalized him. This was held to be a sufficient compliance with the statutory provision that the jurisdiction of the court of naturalization "shall extend only to aliens resident within the respective judicial districts of such courts." It is true that in the foregoing decision, Judge Dietrich concluded that, under section 15, concurrent, and not revisory, jurisdiction was conferred. The same judge, following U. S. v. Albertini (D. C.) 206 Fed. 133, held in U. S. v. Butikofer (D. C.) 228 Fed. 918, in a suit under section 15 praying cancellation of a certificate on the ground that the applicant was under 21 years of age:

"In United States v. Albertini, 206 Fed. 133, it was held that the phrase illegally procured' imports 'a certificate issued by a court without jurisdiction or in violation of the law's procedure-without petition, or witnesses, or notice, or hearing, for example.' The Utah court had jurisdiction, and in so far as appears its procedure was regular; no fraud was practiced. For these reasons alone the decree must be held to be unassailable."

In U. S. v. Jorgenson (D. C.) 241 Fed. 412, Judge Sessions dismissed the petition praying cancellation; the ground set up therein being that

during the five years preceding naturalization the applicant had been absent from the United States in the Canal Zone over three years. Judge Sessions found that at all times during such absence it was applicant's intention to return to the place of his residence, and that on two occasions he did return to his residence and for naturalization, and, upon the strength of the showing as to his intention in this respect, distinguished the case from U. Š. v. Mulvey, 232 Fed. 513, 146 C. C. A. 471. Judge Sessions noted the further distinction that the intention of the requirement of continuous residence was, in part, to insure the applicant's familiarity with our mode of government, and the petitioner in that case was, because of the nature of his work for the government in the Zone, afforded a good opportunity to obtain the needed knowledge, which opportunity the defendant in the Mulvey Case did not have during his absence. It is apparent that what the court says in this last particular is in no sense an attempt to set up under the court's judgment something just as good as that which Congress had provided in its requirement, continuous residence, but that the language was used as an answer to what had been said arguendo by Judge Rogers in the Mulvey Case. Judge Sessions finds, expressly, five years' continuous residence by virtue of the ever-present intention of the applicant to return to the United States, notwithstanding his three years' physical absence in the Canal Zone.

In U. S. v. Lenore (D. C.) 207 Fed. 865, the court dismissed the bill for cancellation. The naturalization had been in the state court. The bill averred that the petitioner had signed by her mark, and "not in her own handwriting," as required by the statute. This is admitted by the answer. The substance of the court's ruling is shown by the following from the opinion:

"To say that a certificate which is issued pursuant to a full hearing in court is illegally procured,' if any error occurs in the proceeding, would be a wide departure from the language which courts have been accustomed to use in referring to judicial error. 'Illegally procured' imports, not an error of court, but willful misconduct on the part of the holder of the certificate or those who have acted in his behalf. The history of the statute shows that its language can be given full effect according to the mischief that was present to the thought of Congress, without upsetting the whole judicial system that has hitherto obtained among courts of co-ordinate jurisdiction. I am therefore unable to follow the decisions in United States v. Meyer (D. C.) 170 Fed. 983, United States v. Plaistow (D. C.) 189 Fed. 1007, and United States v. Schurr (D. C.) 163 Fed. 648. I concur in the view expressed in United States v. Luria (D. C.) 184 Fed. 643, 646, that "illegally procured" does not mean that the certificate was issued through error of law.' Errors of courts, committed in the honest exercise of their jurisdiction under the naturalization laws, must be corrected the same as in other cases by appeal or writ of error." At page 868.

In one respect the case of U. S. v. Stoller (D. C.) 180 Fed. 910, was similar to U. S. v. Andersen (D. C.) 169 Fed. 201, supra; but other illegalities claimed in the procurement of the certificate were that it was issued prior "to final order under the hand of a court having jurisdiction" as required by sections 9 and 18 of the act (Comp. St. §§ 4368, 4375), and that the petition for naturalization had not been filed in duplicate as required by section 4 (section 4352).

(272 F.)

A further review of the cases seems unnecessary.

[1] It is shown both by the evidence of the defendant's witnesses upon the naturalization hearing and that of the presiding judge that neither of these witnesses would testify that, in their opinion, the applicant was well disposed to the good order and happiness of the United States and in every way qualified in their opinion to be admitted as a citizen of the United States. It is true that they said that they considered him so with one exception; that is, his connection with the activities of certain members of the I. W. W. organization.

Section 4 of the act of June 29, 1906, requires that the petition for naturalization shall be verified by the affidavits of at least two credible witnesses who are citizens of the United States, and who shall state in their affidavits that they have personally known the applicant to be a resident of the United States for a period of at least five years continuously, and of the state, territory, or district in which the application is made for one year, immediately preceding the date of filing the petition, and that each has personal knowledge that the petitioner is a person of good moral character, and that he is in every way qualified, in their opinion, to be admitted as a citizen of the United States. It is further required:

"It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the state or territory where such court is at the time held one year at least, and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral character, and attachment to the principles of the Constitution shall be required, and the name, place of residence, and occupation of each witness shall be set forth in the record." 34 Stat. at L. 598; Comp. St. § 4352(4).

Section 5 requires that the names of the witnesses shall be posted. Section 7 requires:

"That 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, or who advocates or teaches the duty, necessity, or propriety of the unlawful. assaulting or killing of any officer or officers, either of specific individuals or of officers generally, of the government of the United States, or of any other organized government, because of his or their official character, or who is a polygamist, shall be naturalized or be made a citizen of the United States." 34 Stat. at L. 598, 599; Comp. St. § 4363.

There is nothing in the foregoing provisions that in any way warrants the contention that the witnesses may qualify their good opinion of the applicant. If they can recommend him in all respects save one, and he be admitted, why not two, three, or half a dozen? Clearly the spirit of the naturalization law requires upon the hearing that the two witnesses to the fact that the petitioner is of good moral character. and attached to the principles of the Constitution of the United States shall be able to say that the applicant is attached sufficiently to such principles to be, in their opinion, in every way qualified to be ad

mitted as a citizen as required in their affidavits to the petition. The act requires, in addition to their testimony, that the court shall be able to find upon the hearing from all the evidence that the applicant is of good moral character and attached to the principles of the Constitution and qualified to be admitted as a citizen of the United States. No intent is shown and no reason suggested why less should be required from the witnesses upon the hearing than is required of them in the preliminary affidavit.

The spirit of the law requires that upon the hearing they shall, in person, in open court, positively support their preliminary affidavits to the effect that, in their opinion, the petitioner is in every way qualified to be admitted as a citizen. The requirement is not that they shall testify that he is qualified in every way considered necessary in the opinion of the court, but qualified in every way in their, the witnesses' opinion. The government wants no citizen whom his own selected friends cannot whole-heartedly recommend. Witnesses may feel that they know the petitioner sufficiently well to say of their own personal knowledge that he is a man of good moral character, but, in the very nature of things, in the vast majority of cases, the court must depend upon good reputation of the petitioner as vouched for by these witnesses, as the best evidence of good character, and, if the two witnesses of the petitioner, chosen by himself, plainly show themselves unwilling to positively and unequivocally state that the petitioner has a good reputation in the community where he lives, and that they themselves believe him to be a man of good moral character in all respects, and that his neighbors think well of him, and that he is in every way qualified in their opinion to be admitted, they have disqualified themselves as witnesses in his behalf, at least unless it develops that their reason for not so doing is entirely groundless or whimsical.

[2] Certainly petitioner's connection with the activities of members of the I. W. W. organization-obstructing the prompt delivery of material needed in the prosecution of the war-under the terms of section 4 is in no sense a fanciful objection. It makes no difference whether the knowledge which kept the witnesses from positively vouching for the petitioner came to them after making affidavit to the petition, or that it was in part upon hearsay, for reputation can only be established by hearsay.

[3] It is the court's conclusion that the certificate was illegally procured, both because of the failure of these witnesses to testify substantially as required by the statute to authorize naturalization, and on the further ground that the court had no warrant to prosecute any inquiry in the matter, save in open court.

[4] The question remains whether, in a proceeding such as the present, the court should set up its judgment in the foregoing particulars over that of the state court. It is, no doubt, a delicate question, and must be determined from the intention of Congress as expressed by section 15 of the act of 1906, as the same has been construed by the courts.

The great majority of the foregoing cases show how strict has been the enforcement of each one of the preliminary requirements expressed