"While a resident domicil here would not be interrupted by transient absences animo revertendi, yet the establishment during absence from the United States of a domicil in Switzerland, even though temporary, would be in conflict with and annul the American domicil for the purpose of the naturalization statutes.” Mr. Bayard, Sec. of State, to Mr. Cramer, min. to Switzerland, No. 138, It was stated in a passport application that the applicant emigrated from Ireland to the United States in May, 1863; that he went to Ireland in the following August; that he returned to the United States in 1865, but again went back to Ireland and was" put in prison there.' The time when he again returned to the United States was not disclosed, but he was naturalized Feb. 21, 1871. The Department of State declined to issue a passport on this application, since the applicant apparently had not resided "five years continuously" in the United States prior to his naturalization. Mr. Uhl, Act. Sec. of State, to Mr. O'Donovan Rossa, May 2, 1894, 197 MS. In the case of a native of Russia, who made a declaration of intention May 29, 1893, and then returned to Russia, where in January, 1896, he still remained, Mr. Olney said his sojourn in Russia "would doubtless be held by a naturalizing court to interrupt the continuous residence required by law as a condition precedent to his naturalization." Mr. Olney, Sec. of State, to Mr. Breckinridge, min. to Russia, No. 169, "I have to acknowledge the receipt of your dispatch No. 25, of the 17th ultimo, reporting that you have refused to issue a passport to Demetrius Chryssanthides, because he had not resided continuously in the United States during the five years preceding the date on which his certificate of naturalization was granted by the superior court of the city and county of San Francisco. "In the treaty between the United States and Bavaria concerning naturalization, signed May 26, 1868, Article I. provides that Bavarians who shall become naturalized in the United States, and shall have resided uninterruptedly' in the United States for five years, shall be treated as American citizens. An explanatory protocol to the treaty says, in paragraph 2 of Article I: "The words "resided uninterruptedly" are obviously to be understood, not of a continual bodily presence, but in the legal sense; and, therefore, a transient absence, a journey, or the like, by no means interrupts the period of five years contemplated by the first article.' The same explanation appears in the protocol to the naturalization treaty with Würtemberg of July 27, 1868. The Department has never doubted that that explanation would be accepted by the other powers with which the United States has naturalization treaties. (See The American Passport, page 175.) "This is the accepted construction of the words resided uninterruptedly,' but the law is (sec. 2170, R. S.): No alien shall be admitted to become a citizen who has not for the continued term of five years next preceding his admission resided within the United States.' This is broader than the language of the treaties, and is to be understood in the ordinary legal sense, according to which a transient absence for business, pleasure, or other occasion, with the intention of returning' (13 Opinions of the Attorneys-General, 376) does not interrupt the residence. “The just rule, it is apprehended, is that suggested by Senator Berrien in the debate on the law]: "If the applicant is absent any part of the time [during the five years before naturalization] it remains for the court to decide whether that absence is sufficient to prevent the issuing of the certificate." (American Law Review, February, 1895; article by Frederick Van Dyne, Assistant Solicitor, Department of State.) "In the case under consideration, Chryssanthides was absent about five months, three years before his naturalization. Whether or not this was a period long enough to have destroyed his residence was a question for the court before which he applied for naturalization to determine. The presumption is that the court decided properly. Upon the showing presented by you the Department is of the opinion that this absence did not by itself furnish sufficient reason for refusing to issue a passport to Chryssanthides. Unless there is more evidence adverse to his good faith than you submit, he should be granted a passport and the adverse memorandum made on his naturalization certificate should, as far as possible, be removed." Mr. Hill, acting Sec. of State, to Mr. Leishman, min. to Turkey, June 14, 1901, For. Rel. 1901, 520. For the construction of the clauses as to residence in the treaties, see the discussion of the treaties, below. (2) EXCEPTIONS. $389. An alien seaman, who has duly declared his intention to become a citizen, and who has thereafter served three years on Seamen. a merchant vessel of the United States, may be ad mitted to citizenship. Rev. Stats. § 2174. This statute does not include seamen in the Navy. (Ex parte Gormly, 14 Phila. 211.) By the act of July 26, 1894, supra, § 386, adult seamen in the Navy or Marine Corps, who have served five consecutive years in the Navy or one enlistment in the Marine Corps, may be naturalized. As heretofore pointed out, service in and honorable discharge from the Army entitle an adult alien to naturalization after one year's residence in the United States. Service in Army. V. CONVENTIONAL ARRANGEMENTS. 1. TREATIES WITH THE GERMAN STATES. (1) NEGOTIATIONS. $ 390. The first naturalization treaty concluded by the United States was that with the North German Confederation, signed at Berlin February 22, 1868. It was negotiated on the part of the United States by George Bancroft. Its acceptance on the part of North Germany may be ascribed largely to the sagacity and good will of Count (afterward Prince) Bismarck. It was followed by the conclusion of similar treaties with other German States, as follows: Bavaria, May 26, 1868; Baden, July 19, 1868; Würtemberg, July 27, 1868; Hesse, August 1, 1868. All these treaties were negotiated on the part of the United States by Mr. Bancroft. "You are familiar with the never-ending dispute between this Government and those European governments which claim to exact military service from persons born within their allegiance, but who have become naturalized citizens of the United States. The question is one which seems to have been ripening for very serious discussion when the breaking out of the civil war in this country obliged us to forego every form of debate which was likely to produce hostility or even irritation abroad. It is in our intercourse with Prussia that the question produces the most serious inconveniences. "Soon after the close of our civil war, Count Bismarck made some offers to the United States which were conceived in a spirit of great liberality. Your predecessor, the lamented Mr. Wright, was hopeful that, through the negotiation thus opened, the two governments might arrive at a satisfactory conclusion of the question. It soon became apparent, however, that the United States could not surrender the principle of the absolute right of expatriation, while on the other hand Prussia was not prepared to acknowledge the principle in its full extent. "The present attitude of Prussia is one of strength and repose, as is also that of the United States. Prussia might now even derive strength from a concession of the democratic principles upon which we insist. "I will thank you to look over the records of your legation so as to review your early impressions upon the subject, and thus form for me an opinion whether the discussion can now be reopened with a prospect of success. In that case you will bring the question in the proper way to the attention of Count Bismarck. “Mr. Yeaman, our indefatigable minister at Copenhagen, has just published there an argument upon the subject. It has so much merit that I have instructed him to send you a copy thereof." Mr. Seward, Sec. of State, to Mr. Bancroft, min. to Prussia, Aug. 22, 1867, "Your despatch of the 3d of March, No. 47, has been received. The naturalization treaty still remains before the Senate. It meets with some opposition from a class of unnaturalized Germans who prefer to agitate for more rather than to accept what has been agreed upon. "There is a partial indifference also in the Western States, resulting from the fact that their State constitutions and laws admit a preliminary declaration of intention and eighteen months' residence to qualify the emigrant as a member of the political state. Nevertheless, the prospect for the treaty is favorable. Indeed, the chairman of the Committee of Foreign Affairs in the Senate assured me yesterday that he thought the treaty would be ratified within the next forty-eight hours, an assurance which is very satisfactory, when we consider the other grave occupations with which the Senate is now engaged." Mr. Seward, Sec. of State, to Mr. Bancroft, min. to Prussia, March 23, 1868, MS. Inst. Prussia, XIV. 508. For the opinion of Bismarck as to the effect of the treaty, see S. Ex. Doc. As to the negotiation of the treaty, see Mr. Fish, Sec. of State, to Mr. By the treaty with the North German Confederation the citizens or subjects of one of the contracting parties" who become" naturalized within the jurisdiction of the other, and who shall have resided therein uninterruptedly for five years, are to be treated as naturalized citizens of the latter. By the treaties with Baden, Würtemberg, Bavaria, and Hesse, citizens or subjects who "have" or "shall" become naturalized, and who have so resided, are to be treated as naturalized citizens. It thus appears that, of the treaties mentioned, four "ex pressly relate to past acts of naturalization as well as to future ones," while the "most important one is entirely silent as to past acts." Mr. Fish, Sec. of State, to Mr. Bancroft, min. to Germany, April 14, 1873, 66 I am able to assure the Department that the phrase in which the words As to the treaty with Hesse, see Mr. Fish, Sec. of State, to Mr. Mayns, As to the treaty with Austria-Hungary, see Mr. Fish, Sec. of State, to Mr. As to North Germany, see Mr. Fish, Sec. of State, to Mr. Gietz, Feb. 8, In 1873 the United States proposed a revision of the naturalization treaties, and stated that the extension of the provisions of the treaty with the North German Union to the other States would, in the opinion of the President, be the simplest and best way to solve the question, adding to it such a provision as might be necessary under German laws to enable Germans who had declared their intention to become citizens of the United States, but had not yet become such, to inherit real and personal property in Germany, as well as a provision that the effect of the treaty should extend to all past naturalization. The proposal was declined. Mr. Fish, Sec. of State, to Mr. Bancroft, min. to Germany, April 14, 1873, In a dispatch of May 8, 1873, Mr. Bancroft traces the history of the negotiation of the treaties and expounds their meaning. He says: "I am unable to find in the treaties of naturalization all the defects which are suggested. On the contrary, I think that the most important of them do not exist and that others are of no practical moment." Mr. Bancroft, min. to Germany, to Mr. Fish, Sec. of State, May 8, 1873, 66 In a dispatch of May 8, 1873, Mr. Bancroft said: I do not regard it as a misfortune that no treaty provision exists protecting the rights of inheritance of the emigrant, where the citizenship of the one country is lost and that of the other not yet acquired, because this is now exceedingly well regulated by the laws of Germany for Germans. This is proved in the very case of Klatt, where his inheritance was held safely for him by the Prussian functionaries, and when he could not be found, and so could not appoint an agent, an offer was made to pay the property over to an official of the United States." (For. Rel. 1873, I. 289.) |