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military service existed in most all continental countries, few young Germans enmigrated to them. Between many of those countries, indeed, there existed informal correspondence, or even formal agreements, under which persons attempting to evade military service were handed over to their home authorities. Where no treaty existed, the returned German was not considered as entitled to be protected by the authorities of the country in which he had become naturalized, and was generally punished in accordance with German law, this being the case even with British subjects, whose Government generally declined to intervene in behalf of a naturalized subject who returned to the land of his birth. The general rule of the German authorities appeared to be to make it unpleasant for all persons of German birth who had evaded military service in their native country, whether their emigration took place for the purpose of evading such service or not, it being held by the authorities, especially in Prussia, that the sojourn of such persons for any length of time caused discontent and dissatisfaction among persons of the same age who had remained at home. As to the supposed reason for the general order, the Prussian ministry of the interior had stated that attention had merely been called to what had been the practice for a long time, in order that persons who contemplated a renewal of their residence in Germany might not be subjected to hardship.

Mr. Ilay, Sec. of State, to Mr. Jackson, chargé at Berlin, April 16, 1901,

For. Rel. 1901, 175 ; Mr. White, amb. to Germany, to Mr. Hay, Sec. of State, May 4, 1901, enclosing a report of Mr. Jackson, sec. of embassy, of May 4, 1901, For. Rel. 1901, 177.


S 394.

The operation of the naturalization treaties with the North German Union and other German States of 1868 is discussed in a report of Mr. H. G. Squiers, second secretary of embassy at Berlin, April 17, 1897.

Between April 23, 1868, and April 7, 1897, nearly twenty-nine years, there were presented to the German Government 447 cases, of which 48 arose in Alsace-Lorraine, and 88 in Schleswig-Holstein.

Of the 447 cases, 316 concerned persons who emigrated between the ages of 16 and 22. By the German law persons who have passed their 17th year are placed on the military list.

Length of residence in the United States before and after naturalization was also a significant circumstance. In 72 cases there was no 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.

a For. Rel. 1897, 211-226.

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; emiyration 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:

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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.


$ 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.


$ 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, 338; 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 ratifi-
cations, see Mr. Fishi, Sec. of State, to Mr. Packenham, Sept. 4, 1871,
15 MS. Notes to Gr. Br. 340.



$ 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 Ileinrich 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 Ausiria-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 Ilungarians 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

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