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(2) CONDITIONS OF CHANGE OF ALLEGIANCE.

$ 391.

By the treaty with the North German Confederation, citizens or subjects of the one country who become naturalized citizens of the other, and “shall have resided uninterruptedly” within the latter five years, shall be treated as its naturalized citizens. A similar provision is made in the naturalization treaties with Baden, Bavaria, Hesse, and Würtemberg, but in the case of Bavaria, by a protocol signed at the same time as the treaty, it is agreed that the words “resided uninterruptedly” do not mean “a continued bodily presence;” that “ a transient absence, a journey, or the like, by no means interrupts the period of five years contemplated by the first article;" and that a five years' residence may indeed not be required where the individual has previously been discharged from his original citizenship. By this protocol ** we are bound to a construction of the word uminterruptedly' which we have not a right to insist upon ” as to the other treaties.

Mr. Fish, Sec. of State, to Mr. Bancroft, min. to Germany, April 14, 1873,

For. Rel. 1873, I. 279, 280. • There was no protocol with North Germany, but the treaty was ex

plained in parliament by the North German Union, and the Bavarian negotiator of the Bavarian treaty simply inserted ('ount Bismarck's words in the Bavarian protocol, making no difference, and intending to make no difference, between the two treaties." (Mr. Bancroft, min. to Germany, to Mr. Fish, Sec. of State, May 8, 1873, For. Rel.

1873, I. 284, 287.) “A person exceptionally naturalized by reason of his service as a soldier, upon proof of one year's residence, is obviously not within the protection of the convention with the North German Union unless he has resided five years within the United States, but in respect to the question of what constitutes residence and when it is to be deemed interrupted, or when he shall be regarded as having renounced his allegiance to the United States, he is to be judged in the same manner as other naturalized citizens."

Mr. Fish, Sec. of State, to Mr. Bancroft, Sept. 20, 1870, MS. Inst.

Prussia, XV. 157. S. was naturalized March 27, 1869. The record recited that he had resided in the United States more than five years. It appeared by his own admissions, made to the American legation in Berlin, that he had not at the time of naturalization resided in the United States five years. The record also recited that he had enlisted in the United States Army in 1865, and had been honorably discharged. In an opinion of January 21, 1871, the Attorney-General said: “ This fact [of enlistment and discharge] has no bearing upon the matter in hand, because naturalization, unless accompanied by a five-years? residence in the adopted country, confers no rights under the treaty.

“ Hence I am of opinion that Mr. Stern, though regularly naturalized in the United States, not having had an uninterrupted residence of five years here, is not entitled to the immunities guaranteed by the treaty with North Germany of 1868."

Akerman, At. Gen., 1871, 13 Op. 376, 377. “In that opinion the Department

fully concurs, and the minister of the United States at Berlin has been advised accordingly.” (Mr. Fish, Sec. of State, to Mr. Strong, M. C., March 7, 1871, 88 MS. Dom. Let. 443; Mr. Fish, Sec. of State,

to Mr. Bancroft, Jan. 27, 1871, MS. Inst. Prussia, XV. 195.) See Williams, At. Gen., 1872, 14 Op. 154; 1873, 14 Op. 295.

The Bancroft treaties require, as conditions of expatriation, both an uninterrupted residence of five years and naturalization. If, therefore, a person be naturalized in the United States in less than five years, as under $ 2166, R. S., relating to the naturalization of persons in the military service of the United States, he must, in order to obtain the benefit of the treaty, also complete his five years residence.

Mr. Adee, Act. Sec. of State, to Mr. Kunze, Aug. 3, 1897, 220 MS. Dom.

Let. 38.
But he need not be naturalized again, after the completion of the five

years' residence. (Mr. Ilay, Sec. of State, to Mr. Stewart, May 10,
1900, 245 MS. Dom. Let. 47.)

Richard Braeg, a native of Baden, was admitted to citizenship of the United States at San Francisco, California, July 19, 1879. In the following year he returned to Europe, and settled on an estate in Switzerland near the German frontier, but conducted a business on the German side of the line at Constance, in Baden, where a prosecution was instituted against him on the charge of having made insulting remarks about the German Emperor and the Grand Duke of Baden at Tivoli, in Switzerland. He was acquitted by the court at Constance on the ground that not being a German he was not answerable for the commission of the offense on foreign soil. An appeal was taken by the state's attorney to the imperial court at Leipsic, where the question was raised as to the defendant's loss of German nationality. It appeared that he had resided in Europe from June, 1874, till April, 1879. The imperial court therefore held that he was not naturalized either in conformity with the treaty between the United States and the North German Union of February 22, 1868, or with that between the United States and Baden of July 19, 1868, the latter recognizing as citizens of the United States citizens of Baden who have resided uninterruptedly within the United States five years and have become citizens of the United States “ before, during, or after that time ”_words which are not found in the treaty of February 22, 1868.

Mr. White, min. to Germany, to Mr. Blaine, Sec. of State, No. 233, July

30, 1881, 29 MS. Desp. from Germany. It is to be observed that sec. 2170 of the Revised Statutes of the United

States declares: * 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."

It seems that Braeg resided in the United States eight years, from 1866 to 1874, and declared his intention to become a citizen, but left in 1874 without having become naturalized, and established in Baden the business above referred to, his personal residence being just across the line in Switzerland. When he made his journey to the United States in 1879, he was not accompanied by his family, and his business in Baden was duly carried on in his absence. “ Without recognizing as binding on this Government,” said Mr. Blaine," the decision of the supreme court at Leipsic, the circumstances attending Mr. Braeg's removals of residence may well be taken as evidence of his voluntary expatriation or renunciation of his American allegiance and citizenship. .. His whole conduct in the matter bears the marks of fraud. Putting the question therefore on this latter ground, he is not entitled to the protection of this Government, or its interference on his behalf."

Mr. Blaine, Sec. of State, to Mr. Everett, chargé at Berlin, No. 256, Aug.

26, 1881, 17 MS. Inst. Germany, 113.

H. Stein was naturalized in the United States, Nov. 30, 1887. He was a native of Prussia, and emigrated to the United States in 1880. Less than two years later, in March, 1882, he returned to his native place, where he remained till April, 1884, when he went again to the United States. In August, 1888, he again returned to Germany, where, in December, 1890, he was put into the army. With regard to this case, Mr. Blaine said:

“ The 1st article of the treaty of 1868 provides that Germans who become naturalized citizens of the United States, and shall have resided uninterruptedly in the United States five years,' shall be held to be American citizens and shall be treated as such. This substantially embodies a provision of the laws of the United States on the subject of naturalization. In addition to the reasons existing under the treaty, the foreign office alleges that Stein's behavior in other respects than those mentioned shows that he emigrated solely for the purpose of avoiding the performance of military duty.

“ Upon all the facts, you indicate the opinion that Stein's case is not a meritorious one and should not be pressed. Undoubtedly upon the facts stated in the note of the foreign office, the complainant is not entitled to the interposition of the Government of the United States. Whatever the motive of his return to his native country, it is plain that he never resided uninterruptedly in the United States for

five years.

“ Ile first resided less than two years in the United States, and then more than two years in Germany. Afterwards he resided something more than three years in the United States and was naturalized, and then went again to Germany, where he has since resided. Private and domestic reasons do not excuse a failure to comply with the treaty in regard to residence, or with the requirement of the statutes. The period of five years to be spent in this country prior to naturalization is intended as a period of preparation for the duties of citizenship and is of the highest importance. To say that a mere desire or purpose to reside in the United States is all that is necessary if the ties or duties of relationship require the individual to reside in his native country would be to reduce the requirement to an absurdity, for in that case a residence of one day would be as effective as an uninterrupted residence of five years. And to say that an individual had resided here uninterruptedly for five years would not mean that he had actually done so, but that he would have done so if it had been convenient, and that because it was not convenient or practicable he was to be regarded as having (lone so. If private duties require a man to remain in the land of which he is a citizen or subject, he can not ask to escape the duties of citizenship there, and the Government that would seek to assist him to evade them would be strangely forgetful of the claims it may have upon the allegiance of its own citizens."

Mr. Blaine, Sec. of State, to Mr. Phelps, min. to Germany, No. 233, March

30, 1891, MS. Inst. Germany, XTIII. 438.

(3) QUESTION AS TO ALSACE-LORRAINE.

$ 392.

“When the [German] Empire was formed we had entered into treaties for the regulation of naturalization with the North German Union, with the Grand Duchy of Baden, with the Kingdom of Bavaria, with the Grand Duchy of Hesse as to the citizens of the parts of the Grand Duchy not included in the North German Confederation, and with the Kingdom of Würtemberg.

" The first defect in the existing treaties is that they are not coextensive with the limits of the empire. The provisions of none of the existing treaties extend to Alsace and Lorraine, which form an integral part of the empire, and from which there has long been a

large and valuable emigration to the United States, whose status deserves recognition and protection."

Mr. Fish, Sec. of State, to Mr. Bancroft, min. to Germany, April 14,

1873, For. Rel. 187:), I. 280, expressing the opinion that there should

be a revision of the treaties. As to a protocol signed by Mr. Blaine, Secretary of State, and Mr. von

Schlozer, Dec. 2, 1881, but not carried into effect, touching the appli(ability of the treaties to Usace-Lorraine, see Mr. Blaine to Mr.

Everett, chargé at Berlin, Dec. 5, 1881, MS. Inst. Germany, XVII. 136.
As to the decision of the German Government that the treaty with the

North German Union, of Feb. 22, 1868, did not apply to Alsace-
Lorraine, and the offer to negotiate for an additional treaty, see For.

Rel. 1880, 41, 48, 49.
Mr. Evarts declined to acrept a ten years' absence as a basis of nego-

tiation. (For Rel. 1881, 150, 152.)

It ap

Charles L. George was born in Alsace, January 9, 1859. peared that his father, who was a native of the same province, then belonging to France, emigrated to the United States in 1810 and was naturalized in 1848, but returned to Alsace in 1851 and remained there till May, 1875, when, the son being sixteen years of age, the father came with him to the United States, where they took up

their abode and continued to live. May 10, 1884, in anticipation of a visit to Alsace, the son, although he had on coming of age exercised the rights of a citizen of the United States by reason of his father's naturalization, was himself naturalized. On July 12, 1881, he was arrested in Alsace on a judicial prosecution for avoidance of military duty to the German Government and was cast into prison, where he was kept for forty days. When arrested he had on his person 63 marks, of which when he was released 40 were retained, as he was informed, to pay for his board while in prison and his railroad transportation. On his return to the United States he placed the facts before the Department of State, which instructed the legation at Berlin to bring them to the attention of the foreign office with a request for explanations. The Department observed that the case seemed to present certain new points which were at variance with the course that the German authorities were understood to have adopted in dealing with naturalized citizens of other countries whom they found in Alsace or Lorraine. It was inferred, said the Department, from the edict of the Statthalter of August 23, 1884, enclosed with Mr. Everett's No. 327, of September 4, 1884, that, if the German Government still adhered to its previous refusal to apply the Bancroft treaty to Alsace-Lorraine, the utmost penalty for foreign citizens was expulsion from the province in case they declined to resume German nationality, and that, if the third article of the edict was correctly interpreted, unmarried foreigners would be allowed to remain during

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