Mr. Hill to Mr. Leishman.
Washington, June 14, 1901.
Sir: I have to acknowledge the recipt of your dispatch No. 25, of the 17th ultimo, reporting that you have refused to issue a passport to Demetrius Chryssanthides, because he had not resided continuously in the United States during the five years preceding the date on which his certificate of naturalization was granted by the superior court of the city and county of San Francisco.
In the treaty between the United States and Bavaria concerning naturalization, signed May 26, 1868, Article I provides that Bavarians who shall become naturalized in the United States, and “shall have resided uninterruptedly “in the United States for five years shall be treated as American citizens. An explanatory protocol to the treaty says, in paragraph 2 of Article I:
“The words ‘resided uninterruptedly’ are obviously to be understood, not of a continual 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 first article.” The same explanation appears in the protocol to the naturalization treaty with Wurttemberg of July 27, 1868. The Department has never doubted that that explanation would be accepted by the other powers with which the United States has naturalization treaties. (See The American Passport, page 175.)
This is the accepted construction of the words “resided uninterruptedly,” but the law is (sec. 2170, R. S.): “No alien shall be admitted to to become a citizen who has not for the continued term of five years next preceding his admission resided within the United States.” This is broader than the language of the treaties, and is to be understood in the ordinary legal sense, according to which “a transient absence for business, pleasure, or other occasion, with the intention of returning” (13 Opinions of the Attorneys-General, 376) does not interrupt the residence.
“The just rule, it is apprehended, is that suggested by Senator Berrien [in the debate on the law]: ‘If the applicant is absent any part of the time [during the five years before naturalization] it remains for the court to decide whether that absence is sufficient to prevent the issuing of the certificate.’” (American Law Review, February, 1895; article by Frederick Van Dyne, Assistant Solicitor, Department of State.)
In the case under consideration, Chryssanthides was absent about five months, three years before his naturalization. Whether or not this was a period long enough to have destroyed his residence was a question for the court before which he applied for naturalization to determine. The presumption is that the court decided properly.
Upon the showing presented by you the Department is of the opinion that this absence did not by itself furnish sufficient reason for refusing to issue a passport to Chryssanthides. Unless there is more evidence adverse to his good faith than you submit, he should be granted a passport and the adverse memorandum made on his naturalization certificate should, as far as possible, be removed.
I am, etc.,
Acting Secretary.