record of this. In the remaining 375 cases, in which the record existed, 205 were those of persons who returned within six years after naturalization, while 212 out of 381 returned to their native land within two years after naturalization.

Of the 447 cases, 325 were decided favorably. More than half of those decided unfavorably were cases of expulsion, especially from Schleswig-Holstein.

In cases of arrest or of compulsory service, the certificate of naturalization was usually taken up by the authorities and, when the case was finally decided, was returned to the owner.

In 104 cases, in which the intervention was unsuccessful, the reasons for the failure were as follows: Less than five years' uninterrupted residence in the United States before naturalization, 4; desertion from the German army or navy, 15; fine collected before naturalization, 4; conduct such as to have a bad influence on the community, 7; nonextension of treaty of 1868 to Alsace-Lorraine, 7; deception as to facts, 1; acquisition of German nationality, 5; emigration to avoid military service, 53; retention of German allegiance, 7; residence in Germany for more than two years, 2; emigration without permission, 1.

The following is a summary of the grounds for and the result of intervention:

A naturalization treaty with Belgium was concluded November 16, 1868. It provides, broadly, that citizens of the one country" who may or who shall have been naturalized” in the other shall be considered as citizens of the latter; but a five years' residence is requisite to release from military obligations.

3. SWEDEN AND NORWAY.

§ 396.

A naturalization convention between the United States and Sweden and Norway was concluded May 26, 1869. Under this convention a citizen of the one country who has resided in the other " for a continuous period of at least five years" and been naturalized is recognized as a citizen of the latter; but, by an accompanying protocol, it is stipulated that the five years' residence shall not be a prerequisite where the individual has been discharged from his original citizenship.

4. GREAT BRITAIN.

§ 397.

By the convention between the United States and Great Britain, signed May 30, 1870, naturalization, whenever acquired in the one country, is recognized in the other.

As to the negotiation of this convention, see Moore, Int. Arbitrations, I. 495, 501, 502, 503, 516; Dip. Cor. 1868, I. 159, 183, 331, 358; Moore, American Diplomacy, 184-189.

As to the reservation made, in behalf of persons already naturalized, of a right of renunciation within two years after the exchange of ratifications, see Mr. Fish, Sec. of State, to Mr. Packenham, Sept. 4, 1871, 15 MS. Notes to Gr. Br. 340.

5. AUSTRIA-HUNGARY.

(1) CONDITIONS OF CHANGE OF ALLEGIANCE.

§ 398.

François A. Heinrich was born in New York in 1850 of Austrian parents, temporarily residing in that city, who, when he was two or three years old, returned with him to Austria. It was stated that he at one time had a passport as a citizen of the United States, but also that in 1866 and 1867 he travelled under an Austrian passport. It appeared, upon the authority of the Austrian minister at Washington, that by the laws of that country a foreign-born child of Austrian parents took the nationality of the latter. The Austrian Government having called upon Heinrich to render military service, the AttorneyGeneral of the United States, to whom the case was submitted, advised that, as the naturalization convention between the United States and Austria-Hungary of September 20, 1870, recognized the right of a citizen or subject of the one country to become a citizen or subject of the other, and as Heinrich had travelled under an Austrian passport, these facts indicated a manifestation of consent on his part

to be treated as an Austrian; that such consent, cooperating with the law of Austria with reference to the foreign-born children of Austrian subjects, and accompanied with continued residence in that country, "effected a complete change in his nationality from American citizenship to Austrian citizenship;" and that, having once acquired the latter, he could not at pleasure cast aside his Austrian nationality or the obligations pertaining thereto so long as he continued to reside in Austrian jurisdiction. The Attorney-General therefore expressed the conclusion that, under the provisions of the convention, Heinrich should be held by the United States to be an Austrian subject and treated as such; that he was "not an American citizen, and, consequently, not entitled to protection" from the United States.

Williams, At.-Gen., Dec. 21, 1872, 14 Op. 154.

This opinion was communicated in substance by Mr. Fish, Sec. of State, to Baron Lederer, Aust. min., Dec. 24, 1872, For. Rel. 1873, I. 78.

Under Art. I. of the convention of 1870, it is necessary that the person shall have resided within the United States at least five years, and during that time have been naturalized; and the requirement of five years' residence applies in all cases, even though the naturalization in the United States is asserted under the special legal provisions that allow admission to citizenship after less than five years' residence.

Mr. Rockhill, Act. Sec. of State, to Prince Raoul Wrede, Aug. 7, 1896, MS. Notes to Aust. Leg. IX. 273. See, also, For. Rel. 1896, 13-15, citing Williams, At.-Gen., 1872, 14 Op. 154.

The Austro-Hungarian legation at Washington, June 8, 1896, called attention to the necessity of using, where Austrians or Hungarians were naturalized in the United States, a form of oath which should "mention the fact of the existence of separate Austrian and Hungarian citizenship," and which should “also, in referring to the sovereign, allegiance to whom is renounced by the person relinquishing his Austrian or Hungarian citizenship, make express mention of the joint character of the ruler, who unites the two constituent parts of the monarchy under his scepter." The oath should therefore state that the person renounced his "Austrian " or " Hungarian" citizenship. To the statement that the applicant was an Austrian or a Hungarian there might be added the words "and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly to his Majesty the Emperor of Austria and Apostolic King of Hungary."

The Department of State sent a memorandum on the subject to the governors of the several States and to the Attorney-General of the United States, for the information of the Federal and State

courts of the Union which were authorized to issue certificates of naturalization.

Prince Wrede, chargé, to Mr. Olney, Sec. of State, June 8, 1896, For. Rel. 1897. 23; Mr. Olney, Sec. of State, to Prince Wrede, chargé, July 7, 1896, For. Rel. 1897, 24.

Ivan Dominik Benich (or John Benich) was born at Dvorska, Hungary, Aug. 3, 1871. In March, 1884, he received from his home. authorities a passport and emigrated to the United States, where, on October 5, 1892, he was naturalized. May 16, 1893, being then on a visit to his native place, he was arrested and held for military service. He bore at the time his certificate of naturalization, and also a passport issued April 15, 1893, by the United States legation at Vienna. He was released on the intercession of the legation. Meanwhile the question whether to strike his name from the military rolls remained pending before the judicial authorities, and on May 26, 1894, the ban of Croatia decided that as Benich had not resided uninterruptedly for five years in the United States, and therefore had not acquired American citizenship in accordance with the convention of Sept. 20, 1870, he was to be considered as having gained it fraudulently; that he consequently remained, under par. 50. Art. I., of the Hungarian law of 1873, touching the acquisition and loss of citizenship, a subject of Hungary; and that the United States should be asked to cancel his certificate of naturalization and passport.

The allegation that Benich had not resided five years uninterruptedly in the United States was based on the fact that in November, 1888, he returned to his native place, remaining there till the end of April, 1889, and meanwhile acting as a witness at baptisms and weddings, arranging balls, and on one occasion obtaining a passport for use in Bosnia and Herzegovina; and that he returned again in April, 1893, being soon afterwards arrested. It was therefore said that, as his first absence from his native country lasted only three years and several months, and his second only four years, he could not have resided in the United States uninterruptedly for five years.

In reporting upon the case, the minister of the United States at Vienna said:

They [the Hungarian authorities] seem to conclude, and in such conclusion the foreign office seems to concur, that the five years' residence provided for in the treaty means actual uninterrupted bodily presence of the applicant for the period prescribed. Such an interpretation would make the accidental or ignorant crossing of the boundary line of the nation, even for the moment, a suspension of his inchoate right and require a new inception of the probation period. I can not subscribe to such a narrow and unnatural construction of the language of the treaty. I take the terms have resided' and

' residence' to mean something more than mere personal presence ; they are intended to have the larger and more natural definition which carries with it the idea of a fixed and permanent abode, an abiding place selected with the animus manendi on the part of its owner or possessor. The agent of our Government, in drafting or consenting to the phraseology used in the treaty, which is attested by his name, must presumably have had in mind the existing laws of his own Government in reference to the subject-matter of the treaty itself. This is indicated by the period of time required as to residence being the same as that in case of ordinary naturalized citizens of the United States, and the entire phraseology of the section is not unlike that used in the amended statute of 1870, enacted about two months prior to the conclusion of this treaty. That act required that '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.' (U. S. R. S., § 2170.) The language of the treaty is: Citizens of the Austro-Hungarian monarchy who have resided in the United States of America uninterruptedly at least five years' and have become naturalized, etc., shall be treated as citizens, etc. Both use the term resided.' The one requires that he reside for a continuous term and the other that he shall have resided uninterruptedly. If there be a difference in meaning, it must be admitted that the statute is more rigorous in its requirements as to residence than the treaty. It could more plausibly be argued that the continued term of five years was broken by personal absence than that his residence was interrupted thereby. It will be remembered, however, that Congress gave a legislative construction to this legislation by striking out from the original act of 1813 the words without being during the said five years out of the territory of the United States,' the courts having held under the old statute, as they were obliged to do, that personal absence, though temporary, interrupted the running of the statute. After the amendment so made in 1848, however, the courts have been unanimous, so far as I am informed, in holding mere personal presence not indispensable, and that mere temporary absences, unaccompanied by changes of abode, habitation, or intention, do not interrupt the probation of the alien.

"It will be observed that if this be the proper construction to be given the treaty, the voluminous testimony taken by the authorities of Croatia, at an expenditure of so much time and the exhibition of so great diligence, has but little bearing on the case itself, for if it be established that young Benich returned to Croatia for a temporary visit to his parents, with the fixed and continuing intention of returning to his home in Chicago, the acts proven by the numerous witnesses would not be in conflict therewith. He might, without abandoning his residence, witness baptisms, attend marriages, arrange