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The certificate from the Department of Commerce and Labor and the declaration of intention shall be attached to and made a part of the petition. Sec. 4, par. 2.

3. Residence.

a. In General.

Before an alien can become naturalized under the general laws of the United States, he must have resided here at least five years.

Section 2170 of the Revised Statutes provides 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."

The language of the Act of June 29, 1906, is similar: “It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the state or territory where such court is at the time held one year at least.”

The reason for the requirement of such preliminary residence is obvious. It enables the applicant to become acquainted with the character of our institutions. It tests the sincerity of his desire for citizenship.

The law, justly regarding a change in his allegiance by a foreigner as an act of grave importance, wisely provides that there shall be two steps in the process. By the first, the purpose of change is announced. Between this and actual naturalization the lapse of a considerable interval is required, in order that the final step may be taken with due deliberation. Persons who may have declared their intention to become citizens often change their minds, and fail to carry that intention into effect. They have seen occasion to avail themselves of the locus penitentiæ which the law allows. Sec'y Fish, For. Rel. 1871, 254.

b. Meaning of “Residence."

In its more restricted meaning the word residence denotes a person's habitual physical presence in a country or place. In its broad sense it means a place of abode, selected with the intention of remaining permanently or for an indefinite period. Van Dyne, Citizenship of the United States, 83.

In its legal acceptation residence is the place of a party's home or domicile. Every change of abode is not regarded as constituting a new residence, in the legal sense of the word, unless it is accompanied with the intention to abandon the former with the purpose of taking up another. Residence, in its legal acceptation, is the party's home or domicile, and not merely the spot occupied by him for the time being. In re An Alien, Fed. Cas. 201a.

In the case of In re Hawley, 1 Daly, 531, the court said: “There are few questions that come up for the consideration of judicial tribunals which it is more difficult to define than what will constitute a residence. The best definition that I have ever been able to find, or which my own experience could suggest—and I have had a great deal-is that to be deduced from the Roman law-that a man's residence is the place where his family dwells, or which he makes the chief seat of his affairs and interests."

c. “Continued Residence."*

The residence must be continuous. The language of Section 2170 is "continued term of five years." In the Act of 1906 it is “resided continuously

five years at least."

*See article by author on “Continued Residence of Applicant for Naturalization," 29 American Law Review, 52.

What is meant by continued residence? Can a foreigner after making the formal declaration of intention to become a citizen, leave the United States for any purpose, or for any period, without interrupting the continuity of his residence and forfeiting the benefits acquired thereby? Little light is thrown upon this inquiry by the decisions of our courts, and text writers seem to give the matter little attention.

Taken in the legal sense,* temporary absence from the United States, upon business or pleasure, would not be incompatible with continued residence here. The sole criterion would be the intention of the party. To determine this it would be proper to take into consideration the length of the absence, its purpose, and the circumstances surrounding the case. In a case arising under the treaty of 1868 (15 Stat. at L. 615) between the United States and the North German Confederation, the opinion was expressed by the Attorney General that the residence of an applicant for naturalization would not be interrupted by "a transient absence for business, pleasure, or other occasion, with the intention of returning." Stern's Case, 13 Ops. Atty. Gen. 376. On the other hand, one

. . who, immediately after declaring his intention to become a citizen of the United States, removed to Mexico and there engaged in business, was deemed to have abandoned his declared intention to become an American citizen. 2 Wharton's Int. Law Digest, 360.

And in the case of a native Russian who declared his intention to become a citizen in 1893, and then returned to Russia where he still remained in 1896, Secretary Olney said his sojourn in Russia would doubtless be held by a naturalizing court to interrupt the continuous residence required by law as a condition precedent to his naturalization. Mr. Olney to Mr. Breckinridge, January 27, 1896, 3 Moore's Int. Law Digest, 356.

*"The phrase "continued term of five years' means residence in the general legal sense.” Mr. Fish to Mr. Bancroft, Sept. 20, 1870, 3 Moore's Int. Law Digest, 354.

The logical and rational construction of the language of the law would admit a brief temporary absence from the United States during the period of probation without interruption of the continued residence required by the statute. A study of the history of our naturalization legislation, however, does not clearly show this to have been the intention of Congress. The earliest Federal law relative to the naturalization of aliens, the Act of March 26, 1790 (1 Stat. at L. 103, Chap. 3), provided that “any alien

. who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof." By Act of January 29, 1795 (1 Stat. at L. 414, Chap. 20), a preliminary declaration of intention was provided for, and the applicant was required to declare "that he has resided within the United States five years at least.” The act of June 18, 1798 (1 Stat. at L. 566, Chap. 54), required the applicant to prove “that he has resided within the United States fourteen years at least.” This law was repealed by the Act of April 14, 1802 (2 Stat. at L. 153, Chap 28, U. S. Comp. Stat. 1901, 1329), which made it the duty of the court admitting the applicant to satisfy itself “that he has resided within the United States five years at least." This Act also provided that the oath of the applicant should, in no case, be allowed to prove his residence.

In November, 1804, while the law of 1802 was in force, one Walton applied to the United States Circuit Court at Alexandria, Virginia, for naturalization. Affidavits were submitted showing that Walton had resided in the United States more than six years; that during that period he was absent a short time on business, but left his family in this country. The application was rejected by the court because the residence did not appear to be


a continued residence, and the term of absence was indefinite. Ex parte Walton, 1 Cranch, C. C. 186, Fed. Cas. No. 17,127.

In December, 1804, in the case of James Saunderson, who applied to the same court, an affidavit was presented showing that Saunderson came to the United States in October, 1797, and continued to reside here until 1800, when he went to England, returning in April, 1801. In the fall of 1801 he again went to England, and in 1802 returned to this country, where he continued to live to the date of his application. Although he had actually resided in the United States more than five years, the court refused to admit him because he had not continued to reside, according to the requirement of the law. Ex parte Saunderson, 1 Cranch C. C. 219, Fed. Cas. No. 12,378.

In the case of Hawley (In re Hawley, 1 Daly, 531), naturalization was refused because the applicant after residing in the United States ten years and declaring his intention to become a citizen went to his native country (Ireland) on account of his father's illness and remained there seven years. After returning to the United States and dwelling here more than a year longer, he made application for admission to citizenship, and the evidence showed that before leaving for Ireland he had expressed to his friends his intention to return and reside in the United States. The court in rejecting his application based its action largely upon the fact that while he was in Ireland he worked at his trade of mechanic. This, coupled with his long absence, in the opinion of the court, effected a change of residence.

Up to this time the law had not expressly required a continuous residence. It appears to have been the opinion of the court, however, in the cases just cited, that the law contemplated continuous physical presence in the country. This seems to be an extreme construction.

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