L. HAND, Circuit Judge.
The District Attorney, on behalf of the Immigration and Naturalization Service, has appealed from an order, naturalizing the appellee, Repouille. The ground of the objection in the district court and here is that he did not show himself to have been a person of "good moral character" for the five years which preceded the filing of his petition.
Very recently we had to pass upon the phrase "good moral character" in the Nationality Act;
One might be tempted to seize upon all this as a reliable measure of current morals; and no doubt it should have its place in the scale; but we should hesitate to accept it as decisive, when, for example, we compare it with the fate of a similar offender in Massachusetts, who, although he was not executed, was imprisoned for life. Left at large as we are, without means of verifying our conclusion, and without authority to substitute our individual beliefs, the outcome must needs be tentative; and not much is gained by discussion. We can say no more than that, quite independently of what may be the current moral feeling as to legally administered euthanasia, we feel reasonably secure in holding that only a minority of virtuous persons would deem the practise morally justifiable, while it remains in private hands, even when the provocation is as overwhelming as it was in this instance.
However, we wish to make it plain that a new petition would not be open to
Order reversed; petition dismissed without prejudice to the filing of a second petition.
FRANK, Circuit Judge (dissenting).
This decision may be of small practical import to this petitioner for citizenship, since perhaps, on filing a new petition, he will promptly become a citizen. But the method used by my colleagues in disposing of this case may, as a precedent, have a very serious significance for many another future petitioner whose "good moral character" may be questioned (for any one of a variety of reasons which may be unrelated to a "mercy killing") in circumstances where the necessity of filing a new petition may cause a long and injurious delay.
The district judge found that Repouille was a person of "good moral character." Presumably, in so finding, the judge attempted to employ that statutory standard in accordance with our decisions, i. e., as measured by conduct in conformity with "the generally accepted moral conventions at the time." My colleagues, although their sources of information concerning the pertinent mores are not shown to be superior to those of the district judge, reject his finding. And they do so, too, while conceding that their own conclusion is uncertain, and (as they put it) "tentative." I incline to think that the correct statutory test (the test Congress intended) is the attitude of our ethical leaders. That attitude would not be too difficult to learn; indeed, my colleagues indicate that they think such leaders would agree with the district judge. But the precedents in this circuit constrain us to be guided by contemporary public opinion about which, cloistered as judges are, we have but vague notions. (One recalls Gibbon's remark that usually a person who talks of "the opinion of the world at large" is really referring to "the few people with whom I happened to converse.")
Seeking to apply a standard of this type, courts usually do not rely on evidence but utilize what is often called the doctrine of "judicial notice," which, in matters of this sort, properly permits informal inquiries by the judges.
But the courts are not utterly helpless; such judicial impotence has its limits. Especially when an issue importantly affecting a man's life is involved, it seems to me that we need not, and ought not, resort to our mere unchecked surmises, remaining wholly (to quote my colleagues' words) "without means of verifying our conclusions." Because court judgments are the most solemn kind of governmental acts — backed up as they are, if necessary, by the armed force of the government — they should, I think, have a more solid foundation. I see no good reason why a man's rights should be jeopardized by judges' needless lack of knowledge.
I think, therefore, that, in any case such as this, where we lack the means of determining present-day public reactions, we should remand to the district judge with
In this very case, my colleagues have relied on informally procured information with reference to "the fate of a similar offender in Massachusetts."
Cf. Frank, If Men Were Angels (1942) 122-127; L. Hand, J., in Parke-Davis & Co. v. H. K. Mulford Co., C.C., 189 F. 95, 115; Cohen, Benjamin Nathan Cardozo, 1 Nat.Lawyers Guild (1938) 283, 285; Morris, Law and Fact, 55 Harv. Law Rev. (1942) 1303, 1318-1319.