March 3, 1813, Congress passed "An Act for the regulation of seamen on board the public and private vessels of the United States" (2 Stat. at L. 809, chap. 42, U. S. Comp. Stat. 1901, 1333), the 12th section of which provided that "no person who shall arrive in the United States from and after the time when this act shall take effect shall be admitted to become a citizen of the United States, who shall not, for the continued term of five years next preceding his admission, as aforesaid, have resided within the United States, without being at any time during the said five years out of the territory of the United States."

In Ex parte Paul, 7 Hill, 56, the facts were that Paul, a native of Ireland, came to the United States in 1836. In 1843 he left the city of Rochester, N. Y., to go to Ogdensburg by way of Lake Ontario. The steamboat in which he traveled stopped about ten minutes at Kingston, Canada, to take in passengers, during which time. Paul stepped upon the dock where he remained two or three minutes and then returned to the boat and proceeded to Ogdensburg. In 1844 he applied for naturalization, having resided in the United States since 1836. The court denied his application. Referring to the language of the statute, the court said:

"The leading object of the provision was undoubtedly to make the alien's right depend upon the simple enquiry whether he has in fact remained within the United States during the whole five years next preceding his application, and thus exclude all enquiry as to the intention and purpose of his departure. In the present case the applicant has not complied with the condition upon which his right to become a citizen depends, and his application must, therefore, be rejected."

While it is not unreasonable to suppose that this law was intended to apply to seamen alone, its terms embraced all aliens, and precluded even momentary absence

from the territory of the United States, for any purpose whatever, without the forfeiture of the benefits acquired by previous residence. This remained the law until the year 1848. In 1846 an effort was made to repeal the last clause of the 12th section, and a bill was introduced in the Senate to accomplish that purpose. It was referred to the judiciary committee, and a favorable report was submitted thereon by Senator Breese. The bill did not become a law at that time, but the following extract from the report referred to is of interest as showing the sentiment of the committee: "The hardship complained of by this law as it now reads is that persons other than seamen, for whose regulation and naturalization, alone, the law may well be supposed to have been enacted, have, by the courts of the country, adhering to the letter of the law, been deprived of certificates of citizenship, who had made their declaration of intention to become citizens of the United States in conformity with the general naturalization law, whose residence, business pursuits, and property are wholly within the United States; it being shown on final examination that after five years had commenced to run, and during their progress, they had been temporarily out of the territory and beyond the jurisdiction of the United States, sometimes with their own consent, in pursuit of their business, at other times accidentally, in the course of voyages upon the northern lakes, where a divided jurisdiction obtains, the line and limit of which is imaginary only. Cases are stated of persons engaged in large commercial operations, who, with their families, permanently reside in some of our large cities, after making their declarations of their bona fide intention to become citizens, are compelled to visit foreign countries for purposes connected with their business, but immediately returning to their homes in the United States, who are unable, by reason of this temporary absence, to show upon the final examination

that they have been continually during the five years within our territory, and are thus refused their certificates of naturalization. All such persons could conscientiously depose that they have, at no time within the five years, been out of the territory of the United States with the intention of remaining out; that the animus revertendi always continued. The committee think that the rigor of the law, if originally intended to apply to such persons, and not to seamen only, might with propriety be relaxed, leaving it to the courts to determine upon each application for a certificate of naturalization, if the residence set up has been bona fide with the intention of remaining, only interrupted by such and kindred circumstances to which the committee have referred. To accomplish this, enough of the section will remain after the clause in question is repealed; for a momentary absence, to be judged of by all the circumstances attending it, may not be found inconsistent with a correct legal idea of a continued residence as required."

Two years later the matter again came up in Congress, and June 26, 1848, an act (9 Stat. at L. 240, chap. 72) was passed striking from the law the clause in question, viz., "without being at any time during the said five years out of the territory of the United States." The natural inference from this action of Congress would seem to be that it intended to relieve the applicant for naturalization from the forfeiture caused by necessary temporary absence, unaccompanied by change of intention.* But a perusal of the record of the debate in Congress at the time of the repeal of the clause does not fully confirm this view. Mr. Dickinson, having the bill in charge in the Senate, stated its object to be "to enable those individuals who had not been able to perfect their letters of naturalization, in consequence of being compelled to be absent from the United States since the notification of *See In re Clark, 18 Barb. 444.

their intention, to obtain relief." Cong. Globe, 1st Session, 30th Congress, 854.

"Mr. Underwood asked whether the bill proposed that the time an individual might be absent from the United States was to be made up by subsequent residence, prior to the granting of the certificate. Mr. Dickinson replied in the affirmative. Mr. Breese said that if the applicant for naturalization should be called out of the United States, and remain abroad four years and eleven months, that time would not be counted. Mr. Berrien explained the law as it would stand after the passage of the bill, which required that the five years' residence should be completed. If the applicant for a certificate were absent any part of that time, it would remain for the court to decide whether that absence was sufficient to prevent the issuing of the certificate. As the law now stands if any person after notifying his intention to become a citizen, sets his foot out of the United States, he must go through the full term of five years' residence again. Under this bill he may be called away for a short period by business, but having filed his desire to become naturalized, the court may decide that there is no sufficient reason for his going again over the whole term of probation. The bill was then considered and read a third time and passed." Id.

In the House, Mr. Birdsall, in explaining the object of the bill, stated that persons who had left the United States as volunteers for Mexico, after declaring their intention to become naturalized, had been thus prevented from obtaining the residence required by law. "Mr. McClernand said that those who had enlisted in the service of their country, and had been sent beyond its limits in the prosecution of the war, fell within the wording of the present law, and were forced to lose all the time they

were thus absent, though they had previously notified their intention of being naturalized. The bill was then passed." Id. 864.

So far as it can be gathered from the foregoing, the intention of Congress in repealing the clause in question seems to have been to conserve to the applicant for naturalization, who, in good faith, temporarily absents himself from the United States after declaring his intention, only the benefit of the time which he has actually spent in this country.

But it is not believed that this apparent intention would justify the courts in disregarding what seems to be the plain and reasonable meaning of the language of the law. The great injustice of such a construction is well shown by the statement of Mr. McClernand, quoted above, that persons who had volunteered in the service of the United States, and been sent beyond its limits in prosecution of war against a foreign nation, would be "forced to lose all the time they were thus absent, though they had previously notified their intention of being naturalized."

Moreover, if the residence is interrupted by temporary absence, without change of intention on the part of the applicant, the logical consequence would be that he should be required, not merely to make up the time thus lost, but to begin de novo. For a residence which is once broken can not be said to be a continued residence, such as the law requires.

The just rule, it is apprehended, is that suggested by Senator Berrien, supra: "If the applicant is absent any part of the time, it remains for the court to decide whether that absence is sufficient to prevent the issuing of the certificate." In other words, if the facts and circumstances of the absence, as shown in the particular case, indicate no change of intention on the part of the