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applicant, it is the duty of the court to issue the certificate, without requiring such time to be made up. If there is evidence showing abandonment of intention, the application should be refused, and the party should be required to begin de novo. This is believed to be the
. only construction consistent with the spirit of the law and with the plain import of the language employed.
It is interesting, in this connection, to note the construction given very similar language used in naturalization treaties. Our treaties of naturalization with Bavaria (15 Stat. at L. 661), and Württemberg (16 Stat. at L. 735), concluded in 1868, require that citizens of the one country shall have "resided uninterruptedly" within the territory of the other for five years. This language is certainly as strong as "continued residence" in our naturalization law. Rev. Stat., Sec. 2170 (U. S. Comp. Stat. 1901, 1333). Yet in the protocol of each of these treaties, more exactly defining and explaining the contents of the treaties, it is declared: “The words ‘resided uninterruptedly' are obviously to be understood, not of a continued bodily presence, but in the legal sense, and therefore a transient absence, a journey, or the like, by no means interrupts the period of five years contemplated by the 1st article.” 15 Stat. at L. 664. See, also, ForRel. 1901, 520.
Section 15 of the Act of June 29, 1906, declares that “if any alien who shall have secured a certificate of citizenship under the provisions of this Act shall within five years after the issuance of such certificate return to the country of his nativity or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and in the absence of countervailing evidence it shall be sufficient in the proper proceeding to
authorize the cancellation of his certificate of citizenship as fraudulent."
d. Constructive Residence.
(A.) Merchant Seamen. Alien seamen, while serving on board a merchant vessel
a of the United States, are deemed to be constructively within the United States.
In the case of In re Scott, 1 Daly, 534, the applicant came to the United States at the age of three years, and lived in New York until he reached the age of seventeen, when he shipped as a seaman on board an American vessel and was continuously employed as a sailor on American merchant vessels for seven years and until he applied for naturalization. The court expressed the opinion that the residence of a seaman, if married, is the place where his family dwells; if unmarried, it is the place where his domicile was fixed when he first went to sea as a mariner, and that his service as a mariner exclusively in American vessels did not operate as an abandonment of his domicile. The conclusion of the court was, that the applicant had resided within the United States during the five years preceding his application, and admitted him to citizenship. See In re Shaw, 2 Pa. Dist. Ct. 250.
(B.) In Countries in Which the United States has Extra
Territorial Rights. In the case of Gargiulo, a dragoman of the American Legation at Constantinople, who had made his declaration of intention in the United States and afterwards returned to his official duties in Turkey, Secretary Gresham held that the five years' residence required by the statutes means actual residence, and that a person can not be considered “as having been constructively in this country during the past five years merely because he has been in the employment of this government” as interpreter or dragoman of the American Legation in Turkey during that time. The fiction of extraterritoriality can not be carried to that extent. Mr. Gresham to Mr. Terrell, Nov. 2, 1893, 3 Moore's Int. Law Digest, 353.
A constructive residence is held not to answer the requirement of the statute. Proposed residence in Japan can not, therefore, be made available for naturalization purposes.
Mr. Evarts to Mr. de la Camp, July 25, 1877, 3 Moore's Int. Law Digest, 353.
The process of naturalization must be performed in the United States. Mr. Frelinghuysen to Mr. Kasson, Jan. 15, 1885, For. Rel. 1885, 394.
e. Residence within State.
In addition to residence within the United States for the continued term of five years, the applicant must have resided within the state or territory where the court is at the time held, one year at least. Sec. 4, par. 4.
In Chandler v. Wartman, 6 N. J. L. J. 301, it was held that R. S. 2165, providing that the court naturalizing an alien must be satisfied that he has resided in the United States for five years and within the state where the court is held for one year, did not require the last year of residence to be in the state where the application is made, but that it was sufficient that applicant had lived for any one year in that state.
And, in Cummings' Petition, 41 N. H. 270, arising under the same statute, the court declared that: "In an application for naturalization under the Act of April 14, 1802, it is not necessary for the applicant to allege or prove his residence for the year immediately preceding his application in the state or territory where the court is holden; but it is sufficient for him to allege and prove such residence for any one of the five years of his residence in the United States."
The existing law, the Act of June 29, 1906 (Sec. 10), provides: “That in case the petitioner has not resided in the state, territory, or district for a period of five years continuously and immediately preceding the filing of his petition he may establish by two witnesses, both in his petition and at the hearing, the time of his residence within the state, provided that it has been for more than one year, and the remaining portion of his five years' residence within the United States required by law to be established may be proved by the depositions of two or more witnesses who are citizens of the United States, upon notice to the Bureau of Immigration and Naturalization and the United States attorney for the listrict in which said witnesses may reside."
f. In the Philippines and Porto Rico.
Residence in the Philippine Islands or Porto Rico, is deemed “residence within the United States" within the meaning of the naturalization law. The Act of June 29, 1906, provides that “residence within the jurisdiction of the United States, owing such permanent allegiance, shall be regarded as residence within the United States within the meaning of the five years' residence clause of the existing law." (Sec. 30.)
g. In Hawaii.
The Act of April 30, 1900, 31. Stat. 161, dispensed with the previous declaration of intention in the case of persons applying to be naturalized in Hawaii, who had resided there at least five years prior to June 14, 1900. The language of the Act (Sec. 100) is: "For the purposes of naturalization under the laws of the United States, residence in the Hawaiian Islands prior to the taking effect of this Act shall be deemed equivalent to residence in the United States and in the Territory of Hawaii; and the requirement of a previous declaration of intention to become a citizen of the United States and to renounce former allegiance shall not apply to persons who have resided in said islands at least five years prior to the taking effect of this Act, but all other provisions of the laws of the United States relating to naturalization shall, so far as applicable, apply to persons in the said islands."
h. Proof of Residence.
(A.) Under Act of 1906. The statute (Act of June 29, 1906, Sec. 4, par. 4) provides that "it shall be made to appear to the satisfaction of the court” that the alien has resided, etc.
(B) Under Prior Laws.
Before the passage of the Act of 1906, Rev. Stat. 2165, provided that "the oath of the applicant shall in no case be allowed to prove his residence." And it was held that this not merely rendered the oath of the applicant insufficient, but that it amounted to a prohibition against taking his oath as proof of his residence, and that such oath if taken was extra-judicial.
The statute did not prescribe how the residence was to be proved, but the usual method was for the courts to require testimony under oath of at least two citizens of good standing who were able to testify of their own knowledge that the applicant had been a resident of the United States for five years at least, and within the state or territory wherein the court was held for one year.*
*In re An Alien, 7 Hill, 137, it was held that in proceedings for naturalization an alien's residence could not be established by affidavit, but must be proved in court by the testimony of witnesses.
In Com. v. Paper, 1 Brewster (Pa.), 263, it was held that an alien could not vouch for a person petitioning for naturalization.
The law requires that some of the essential facts shall be made to