on that date otherwise qualified to become a citizen of the United States, except that he had not made the declaration of intention required by law, and who during or prior to that time, because of misinformation regarding his "citizenship status" had erroneously exercised the rights and performed the duties of a citizen of the United States in good faith, was permitted to file his petition for naturalization without making the preliminary declaration of intention required of other aliens.1

According to the same Act any alien serving in the military or naval service of the United States during the time when it was engaged in the then existing war was permitted to file his petition for naturalization without making the preliminary declaration of intention and without proof of the required five years' residence within the United States.2

By virtue of the Act of June 29, 1906, when any alien who has declared his intention to become a citizen of the United States dies before he is actually naturalized, his widow and minor children may, by complying with the other provisions of the Act, be naturalized without making any declaration of intention.3 According to the Act of February 24, 1911, when an alien who has declared his intention, becomes insane before he is actually naturalized, and his wife thereafter makes a homestead entry under the land laws of the United States, she and their minor children may, by complying with the other provisions of the naturalization laws, be naturalized without making any declaration of intention.1

(c)

§ 358. Does not Confer Citizenship.

A declaration of intention is merely one of the steps to be taken by an alien seeking admission to citizenship.5 Such action does not imply a renunciation of allegiance, but simply expresses the purpose of the declarant to make such renunciation at a future

1 Chap. 69, 40 Stat. 545, U. S. Comp. Stat. 1918, § 4352(10). See, also, exception under former statutes now repealed, and noted in Moore, Dig., III, 334-336; also provisions of the Act of June 25, 1910, Chap. 401, § 3, 36 Stat. 830, repealed by the Act of May 9, 1918.

2 Chap. 69, 40 Stat. 542, U. S. Comp. Stat. 1918, § 4352(7).

3 Par. 6, § 4, 34 Stat. 596, U. S. Comp. Stat. 1918, § 4352(6). See, also, Act of April 30, 1900, 31 Stat. 161, dispensing with a previous declaration of intention by persons residing in Hawaii for at least five years prior to the taking effect of the Act.

4 Chap. 151, 36 Stat. 929, U. S. Comp. Stat. 1918, § 4365.

Mr. Blaine, Secy. of State, to Mr. Hicks, Minister to Peru, May 8, 1890, For. Rel. 1890, 695, Moore, Dig., III, 342.

FIVE YEARS' RULE

18 359 time. A declaration of intention does not, therefore, confer citizenship 2 or effect naturalization.3

It seems important to observe, however, that as a possible limitation upon or exception to the principle above stated, the existing statutory law of the United States declares that every seaman, being an alien, shall, after his declaration of intention to become a citizen of the United States, and after he shall have served three years upon such merchant or fishing vessels of the United States, "be deemed a citizen of the United States for the purpose of serving on board any such merchant or fishing vessel of the United States." 4

According to the Act of June 29, 1906, it must 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.5 This conforms with the requirement of Section 2170 of the Revised Statutes forbidding the admission to citizenship of one "who has not for the continued term of five years next preceding his admission resided within the United States."

The term "residence" doubtless refers, as Mr. Gresham, Secretary of State, declared in 1893, to actual residence in the United

1 Mr. Blaine, Secy. of State, to M Hicks, Minister to Peru, Feb. 26, 1890, For. Rel. 1890, 694, Moore, Dig., III, 341; also Mr. Cass, Secy. of State, to Mr. Washburne, March 9, 1857, 46 MS. Dom. Let. 379, Moore, Dig., III, 338.

2 Minneapolis v. Reum, 56 Fed. 576; In re Moses, 83 Fed. 995; Dorsey v. Brigham, 177 Ills. 250; Frick v. Lewis, 195 Fed. 693, 697; United States v. Uhl, 211 Fed. 628, 631. See executive order of President Roosevelt, April 6, 1907, concerning Citizenship, in relation to paragraph 143 of the existing Instructions to the Diplomatic Officers of the United States. Also Mr. Buchanan, Secy. of State, to Mr. Campbell, Consul at Havana, July 26, 1848, 10 MS. Desp. to Consuls, 473, Moore, Dig., III, 337; Circular Notice of Mr. Bryan, Secy. of State, respecting “Liability for Military Service in Foreign Countries of Persons Residing in the United States", Aug. 14, 1914.

3 Mr. Fish, Secy. of State, to Mr. de Luna, April 22, 1869, 81 Dom. Let. 7, Moore, Dig., III, 338.

Chap. 69, Act of May 9, 1918, 40 Stat. 542, 544. It may be noted that this Act is not to be construed to repeal or modify any portion of the Seamen's Act of March 4, 1915, 38 Stat. 1164. See Seamen, infra, § 394.

Par. 4, § 4, 34 Stat. at L. 596, 598, U. S. Comp. Stat. 1918, § 4352 (4).

States. The continued term has been regarded by the Department of State as not interrupted by a transient sojourn abroad,2 the opinion being expressed, however, that an extended lodgment in a foreign country would be incompatible with the requirements of the statute,3 and that it remains for the court of naturalization to decide in the particular case whether the absence suffices to prevent the issuance of a certificate of citizenship.*

The courts of the United States have concurred in the view that continuous residence is capable of interruption. There seems to be a tendency, however, to regard the intention of the applicant to give up his residence in the United States rather than the length of his sojourn abroad, the test of whether the requisite continuity has been broken.5 The length of such sojourn may, however, be so great as to destroy the value of intention."

§ 360. Certain Exceptions.

(b)

According to the Act of May 9, 1918, any alien (or any Porto Rican not a citizen of the United States), of the age of twentyone years and upward, who had enlisted in or entered or might thereafter enlist in or enter the armies of the United States, either the Regular or the Volunteer Forces, or the National Army, the

1 Communication to Mr. Terrell, Minister to Turkey, Nov. 2, 1893, For. Rel. 1893, 701, Moore, Dig., III, 353.

2 Mr. Bayard, Secy. of State, to Mr. Cramer, Minister to Switzerland, No. 138, May 6, 1885, MS. Inst. Switzerland, II, 251, Moore, Dig., III, 356; Mr. Hill, Acting Secy. of State, to Mr. Leishman, Minister to Turkey, June 14, 1901, For. Rel. 1901, 520, Moore, Dig., III, 356.

3 Mr. Olney, Secy. of State, to Mr. Breckinridge, Minister to Russia, No. 169, Jan. 27, 1896, MS. Inst. Russia, XVII, 406, Moore, Dig., III, 356; Mr. Bayard, Secy. of State, to Mr. Cramer, Minister to Switzerland, 1885 and 1886, Moore, Dig., III, 355, and documents there cited; Mr. Bacon, Acting Secy. of State, to Mr. White, Ambassador to Italy, May 25, 1906, For. Rel. 1906, II, 912.

Mr. Hill, Acting Secy. of State, to Mr. Leishman, Minister to Turkey, June 14, 1901, For. Rel. 1901, 520, Moore, Dig., III, 356. See, also, concerning the meaning of "continued residence", Van Dyne, Naturalization, 95105.

5 In re Schneider, 164 Fed. 335; United States v. Aakervik, 180 Fed. 137; United States v. Cantini, 199 Fed. 857, 860; United States v. Rockteschell, 208 Fed. 530; In re Deans, 208 Fed. 1018; United States v. Cantini, 212 Fed. 925. See, also, In re Cameron, 165 Fed. 112; also with respect to the requirements of the statute, United States v. Shanahan, 232 Fed. 169; United States v. Griminger, 236 Fed. 285; In re Reichenburg, 238 Fed. 859; In re Cook, 239 Fed. 782; United States v. Jorgenson, 241 Fed. 412; United States v. Ginsberg, 244 Fed. 209.

United States v. Bragg, 257 Fed. 588, where physical absence for four years and seven months of the five-year period required for residence in the United States was decisive of failure to meet with the requirements of the Act.

CERTAIN EXCEPTIONS

[§ 360 National Guard or Naval Militia of any State, Territory, or the District of Columbia, or the State militia in Federal service, or in the United States Navy or Marine Corps, or in the United States Coast Guard, or who had served for three years on board of any vessel of the United States Government, or for three years on board of merchant or fishing vessels of the United States of more than twenty tons burden, and while still in the service on a reënlistment or reappointment, or within six months after an honorable discharge or separation therefrom, or while on furlough to the Army Reserve or Regular Army Reserve after honorable service, might, on presentation of the required declaration of intention, petition for naturalization without proof of the required five years' residence within the United States, if upon examination by the representative of the Bureau of Naturalization (in accordance with the requirements of the subdivision of the Act), it was shown that such residence could not be established.1

According to the same Act any alien serving in the military or naval service of the United States during the time it was engaged in the existing war, was permitted to file a petition for naturalization without proof of the required five years' residence within the United States. Again, any alien declarant who had served in the United States Army or Navy, or the Philippine Constabulary, and had been honorably discharged therefrom, and had been accepted for service in either the military or naval service of the United States on the condition that he should become a citizen of the United States, was permitted to file his petition for naturalization upon proof of continuous residence within the United States for the three years preceding his petition, by two witnesses, citizens of the United States.3

1 Chap. 69, 40 Stat. 542. This Act repealed Rev. Stat. §§ 2166 and 2174. The provisions stated in the text were also made applicable to "any nativeborn Filipino of the age of twenty-one years and upward who has declared his intention to become a citizen of the United States and who has enlisted or may hereafter enlist in the United States Navy or Marine Corps or the Naval Auxiliary Service, and who, after service of not less than three years, may be honorably discharged therefrom, or who may receive an ordinary discharge with recommendation for re-enlistment.'

2 Chap. 69, 40 Stat. 542. It has been noted that such individuals were excused from making the preliminary declaration of intention.

340 Stat. 543. It was declared that "in these cases only residence in the Philippine Islands and the Panama Canal Zone by aliens may be considered residence within the United States, and the place of such military service shall be construed as the place of residence required to be established for purposes of naturalization."

The same Act provided that any alien, or any person owing permanent allegiance to the United States embraced within "this subdivision”, might

Provision was also made that any person who was serving in the military or naval forces of the United States at the termination of the existing war, and any person who before its termination might have been honorably discharged from the military or naval services of the United States on account of disability incurred in line of duty, should, if he applied to the proper court for admission as a citizen of the United States, be relieved from the necessity of proving that immediately preceding the date of his application he had resided continuously within the United States for the time required by law of other aliens, or within the State, Territory or the District of Columbia for the year immediately preceding the date of his petition for naturalization.1

e

Conventional Arrangements of the United States

(1)

§ 361. Essential Features of the Treaties.

The naturalization treaties of the United States fall chronologically into two distinct series, the first of which was concluded between 1868 (when George Bancroft signed the convention that bears his name with the North German Union) and 1872,2 and the second between 1902 and 1911.3 With two exceptions, a European State was a party to each of the earlier group, while

4

file his petition for naturalization in the most convenient court without proof of residence within its jurisdiction, notwithstanding the limitations in that regard laid down in section 3 of the Act of June 29, 1906.

1 Chap. 69, 40 Stat. 546.

2 The treaties of the first series were concluded with the States named, in the following order: North German Union, Feb. 22, 1868, Malloy's Treaties, II, 1298; Bavaria, May 26, 1868, id., I, 60; Mexico, July 10, 1868, id., I, 1132; Baden, July 19, 1868, id., I, 53; Württemberg, July 27, 1868, id., II, 1895; Hesse, Aug. 1, 1868, id., I, 949; Belgium, Nov. 16, 1868, id., I, 80; Sweden and Norway, May 26, 1869, id., II, 1758; Great Britain, May 13, 1870, id., I, 691; Austria-Hungary, Sept. 20, 1870, id., I, 45; Great Britain (supplemental convention), Feb. 23, 1871, id., I, 698; Ecuador, May 6, 1872, id., I, 434; Denmark, July 20, 1872, id., I, 384.

The treaties of the second series were concluded with the States named, in the following order: Haiti, March 22, 1902, Malloy's Treaties, I, 939; supplemental convention, Feb. 28, 1903, id., I, 941; Peru, Oct. 15, 1907, id., II, 1449; Salvador, March 14, 1908, id., II, 1570; Brazil, April 27, 1908, Charles' Treaties, 19; Portugal, May 7, 1908, Malloy's Treaties, II, 1468; Honduras, June 23, 1908, id., I, 958; Uruguay, Aug. 10, 1908, id., II, 1829; Nicaragua, Dec. 7, 1908, Charles' Treaties, 95; Argentina, Aug. 9, 1909, id., 343; Costa Rica, June 10, 1911, id., 23; Nicaragua, Supplementary convention, June 17, 1911, U. S. Treaty Series, No. 567.

The two treaties which constituted the exception concluded with Mexico, July 10, 1868, and with Ecuador, May 6, 1872, are no longer in force.