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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 1818, 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 balls, and even receive passports from Austria-Hungary, if he found it necessary to visit Bosnia and Ilerzegovina. He was not yet a citizen of the United States; he was still a citizen of Austria-Hungary, and the latter alone could grant him such a right. With due respect, it seems to me that no fact enumerated in the findings of the court, except the unexplained absence of Benich for so long a period of time, tends to show an interruption."
The Department of State replied:
“ The Department fully concurs in your view that a reasonable and proper construction of the language of the treaty-resided uninterruptedly-does not preclude a mere temporary absence of the alien during the period of probation, when such absence is unaccompanied by any intention of changing his domicil.”
Mr. Tripp, min. to Aust.-Ilung., to Mr. Gresham, Sec. of State, Aug. 23,
1894; Mr. Ulil, Act. Sec. of State, to Mr. Tripp, Sept. 14, 1894, For. Rel. 1894, 36, 38, 46.
Anton Guerra was born in Hrastnig, Styria, Nov. 26, 1875. He emigrated to America in August, 1889. He was naturalized in Pennsylvania, May 3, 1897, and, obtaining a passport, returned to his native town. After his arrival there, he was arrested, Aug. 5, 1897, for nonperformance of military service, but through the aid of a local attorney was released. In the following spring, when the recruits were summoned for service, being still in IIrastnig, he was again notified, March 6, 1898, to present himself for military duty. He then appealed to the United States consul-general at Vienna, who referred his letter to the legation; and, upon the presentation of the case by the latter, he was set at liberty and his name stricken from the military lists.
Mr. Tower, min. to Austria-Hungary, to Mr. Day, Sec. of State, June 4,
1898, For. Rel. 1898, 16. Mr. Tower, in his dispatch to Mr. Day, said: “Upon inquiry into the
facts, I discovered that Mr. Guerra belongs to that class of foreigners who go to the United States and remain there long enough to obtain the privileges of citizenship, after which, upon various pretexts, they return to their native country with an American passport. Most of them have never performed the slightest service to our Government in return; and that is the case with Anton Guerra, wlio has never paid any taxes, owned any property, established any tangible interest, or served upon a jury within the United States of
America. Nevertheless, it was evident that he had emigrated to America before he
was liable to military duty in Austria-llungary, and therefore, under the provisions of the treaty of 1870, his United States passport should have been sufficient protection to him from arrest. His passport had been presented to the authorities in Styria and disregarded by them. It was this disregard of his passport which led me to present his case at once to the Austro-Hungarian ministry of foreign affairs."
Julius Graber, a native of Hungary, who had been naturalized in the United States, was, on his return to Hungary, arrested for nonperformance of military duty. His arrest was due to the fact that he had failed to declare his American citizenship; and, when the fact of his American nationality was ascertained, his name was erased from the military rolls.
For. Rel. 1899, 25.
For some unexplained reason he did not, when arrested, exhibit his American citizenship papers.
He was released when he exhibited them. (For.
in Austria in consequence of a mistake made in his naturalization
(For. Rel. 1897, 19.)
Ignatz Gutman, a naturalized citizen of the United States, of Hungarian origin, on his return to his native country voluntarily enlisted in the army. Subsequently becoming tired of the service, he sought to be discharged; and, on the strength of representations that he had been forced into the army, the legation of the United States at Vienna was instructed to ask for an investigation of the case, with a view to his release. The legation finding, by an inquiry into the circumstances, that he was not only not arrested for nonperformance of military duty, but that, after being rejected as a conscript on the ground of his American citizenship, he was accepted as an enlisted man for three years on his own application, forbore to present the case to the foreign office and reported it for instructions. The course of the legation was approved.
For. Rel. 1898, 37-46.
May 26, 1898, 227 MS. Dom. Let. 654, For. Rel. 1898, 45.
Aaron Kenig, a citizen of the United States, was arrested in Austrian Galicia in December, 1897, on a charge of attempting to assist an Austrian subject to leave the Empire without a permit in order to evade his obligation to perform military duty. Kenig, who was born in Roumania in 1863, emigrated to the United States in 1883 and was naturalized in 1892. In May, 1897, he revisited Europe, and in November of the same year was married at Busk, in Austrian Galicia. Setting out in December with his wife for his home in America, he took with him a cousin of his wife, a youth of eighteen years named Taeger, whose passage he agreed to pay. On reaching the Austrian frontier the authorities accepted Mr. Kenig's passport, which was issued in Washington in May, 1897, as a sufficient identification of himself and his wife, but immediately arrested Taeger, who had not obtained the permit which is necessary to enable an Austrian subject to cross the frontier, and who had no document of any kind to exhibit. Taeger was sent back to his home at Busk, while Kenig was bound over to answer the charge above stated, his money and passport being taken from him and held by the authorities as a sort of bail for his appearance before the district court at Taworzno. When he appeared there, he was advised that the case had been transferred to the circuit court at Zloczow, and he was ordered there for trial. Ile did not appear, however, but proceeded to Vienna and made a complaint to the United States legation. He admitted that he was paying Taeger's passage to the United States, and intimated that if he could obtain.sufficient money he would disregard the summons of the court and go directly to America. In January, 1897, he notified the legation by mail that he had taken this course. The legation then made a statement of the case to the imperial minister of foreign affairs, requesting that “justice " be done, and that Kenig's passport and money be returned to him. It appeared by the imperial minister's reply that the money and passport were held pending a final determination of the case, and that the money would be used either wholly or in part to pay the costs of the legal proceedings.
The Department of State approved the purpose of the legation " to press for an immediate disposal of the case, and for the return in whole or in part of the money belonging to Mr. Kenig;" but added : “ If the action of the Austrian court in retaining the funds taken from Mr. Kenig with the object of defraying from them the cost of the proceedings against him in the event of his conviction is in accordance with Austrian law, as is alleged, the Department would not be disposed to contest the claim. Under our system of law the money would probably not be taken from one accused of such an offense upon his arrest, but it does not follow that such practice founded upon the law of a country is not proper and valid."
Mr. Hay, Sec. of State, to Mr. Herdliska, chargé at Vienna, March 4,
1899, For. Rel. 1899, 22. See, for the legation's report on the case, For. Rel. 1899, 11-14. The circuit court at Zloczow, February 11, 1899, decided, on motion of
the state's attorney, to withdraw the action against Kenig and to return to him his money and passport, which was done. (For. Rel. 1899, 23, 24.)
November 7, 1899, the Austrian legation at Washington presented to the United States a proposal for a modification of the naturalization treaty of September 20, 1870. The reason given for the proposal was that for a number of years a numerous class of people in Austria-Hungary had been making use of the stipulations of the treaty for becoming nominally citizens of the United States, with the sole object of living in Austria-Hungary in defiance of its military laws. After having obtained naturalization in the United States at an early age they had, said the Austrian Government, returned to the country of their origin intending to live there permanently, but invoking their American citizenship when called upon to fulfill military duty. “ The United States Government,” said the Austrian proposal, can have no possible interest in the acquisition of a class of citizens who fulfill none of their duties of citizenship toward them, and look upon American citizenship merely as a loophole to avoid the laws of the country in which they intend to live. Nevertheless, they feel obliged to extend their protection to these mala fide citizens, and the Austro-Hungarian Government, bound by the stipulations of the treaty, had no other way to escape from the demoralizing influence of these people but by expelling them, in virtue of the right of every government to close its territory against undesirable aliens." It was therefore proposed (1) that the obligation to recognize naturalization under article 1 of the treaty should be made conditional on the act of expatriation not having taken place in contravention of the laws of the country of origin, or (2) that the stipulation that naturalized persons remained liable to trial and punishment for acts committed before their emigration should be freed from the restriction imposed in article 2 of the treaty, which provides that a citizen of the Austro-Hungarian monarchy, naturalized in the United States, shall not, on his return to his original country, be held to military service or remain liable to trial and punishment for the nonfulfillment of military duty.
The United States declined to accept the proposal on the ground that either amendment would annul all the beneficial provisions of the treaty relating to subjection to military duty. It was admitted, however, that there were "doubtless grave abuses of the privileges of naturalization."
For. Rel. 1899, 79–80.
lingbuysen, Sec. of State, to Mr. Taft, min. to Aust.-Hung. No. 48, Aug. 25, 1883, MS. Inst. Aust.-Hung. III. 252; Mr. Wharton, Act. Sec. of State, to Mr. Grant, min. to Aust.-Hung. No. 140, Aug. 20,
1891, MS. Inst. Aust.-Ilung. III. 622. “The Department is quite of opinion that an attempt to make use of
the treaty merely for the purpose of escaping the burdens which may be involved in bearing allegiance to either of the contracting parties should be discontinued.” (Mr. Blaine, Sec. of State, to Mr. Grant, min. to Aust.-Ilung. May 16, 1890, For. Rel. 1890, 15.)