Mr. Winchester to Mr. Bayard.
Berne , February 13, 1888. (Received February 25.)
Sir: In your number 110, January 5th ultimo, in answer-to my 178of December 22, 1887, relating, to the application of the cantonal authorities of Zurich for a passport for Mrs. Eliza Weiss, a desire was expressed [Page 1518] for more particular information as to whether the husband of Mrs. Weiss was still alive. A reply has been delayed by the effort to obtain the said information. An inquiry addressed through the United States consul at Zurich to the cantonal authorities brings the answer that to the best of their belief and knowledge Weiss is still alive and residing in the United States, and that a request has been forwarded to the Swiss minister at Washington to take steps to ascertain his whereabouts. Permit me to say, after reading the whole dispatch, that the matter of the desired information appears not to have been regarded as essential for the determination of the question submitted, for alter the request is made for it, the dispatch goes on until it reaches the conclusion that Mrs. Weiss, upon the facts presented, is not entitled to a passport, entirely independent of the fact as to her husband being alive or not; for you say, “under ordinary circumstances her continuous residence in Switzerland after such death or desertion would revive her Swiss domicile and nationality and preclude her from claiming the rights of a citizen of the United States,” when, to meet any presumption that her case could not be considered as one “under ordinary circumstances,” you continue, alluding to her being a lunatic, that no objection can be made on that ground, for “even were it found that she was such at the time of her husband’s desertion, yet the local guardians who then took charge of her were entitled to make such an election on her behalf.”
Her continuous residence in Switzerland since 1880, the date of her husband’s desertion, and the desertion, were conceded; therefore the “revival of her Swiss domicile and nationality,” as above held by you, must follow, and without reference to her husband being alive or not. This principle is again emphasized by the instruction with which the dispatch closes, “if you find she has resided in Switzerland since 1880 apart from her husband and deserted by him then you must decline to give her a passport, etc.” I could not hesitate, under this clear and positive instruction, to decline issuing the passport, and have so advised the consul to notify the authorities. But on reflection the case causes me many serious misgivings. In originally submitting it to your superior judgment, the Blümeling case to which you refer was not overlooked.
I remembered that case very well, and indeed, in some measure, the opinions therein given induced me to seek advice, as being one strongly appealing to the views “that the regulations as to passports should not be applied certainly in a way to exclude from a passport persons by whom it may be most needed.” Here was a poor, helpless, demented woman, deserted by her husband, with neither the means nor the mind to do anything, asserting her American citizenship by presentation, through others, of the naturalization certificate of her husband.
Diseased of mind, must she be held to a strict construction of a by no means well-defined principle as to loss of acquired citizenship by return and continuous residence in the country of origin, when this residence, continuing a few years, was a coerced residence in every sense, being brought abroad by her husband in all probability for that very purpose? Can she be deprived of her American citizenship through default of others! Does the failure of the local guardians who had charge of her, if there were any, for it has not appeared whether she is confined in an asylum or not, to make an election on her behalf, work the loss of her citizenship? Suppose there has never been any de lunatico inqnirendo, and she is simply in charge of charitable relatives or friends, would their delinquency in making the “election” for her [Page 1519] have the same effect? Again, should it be found that her husband is alive and residing in the United States, a citizen thereof, what becomes of the law conferring on the wife the right of the citizenship of her husband? This right, it has been held, can not be impaired by an indefinite residence abroad, her nationality and domicile following and remaining that of her husband. If this be true, a fortiori residence abroad, even in the country of nativity of one incapable of any volition, and abandoned there by her husband, could not operate to do so. Should the Swiss minister learn of the whereabouts of Mr. Weiss in the United States, would not the cantonal authorities be justified in returning his wife there that he might be compelled to support her? for, as correctly ruled in the Blümeling case, the statute of August 2, 1882, applies by its terms only to persons who are not citizens.
The question resolves itself into this: Grant that the continuous residence abroad in the country of origin by a wife apart from her husband may deprive her of the nationality of that husband even during his lifetime, can such a residence, when involuntary and the result of the husband’s desertion, operate to the same extent in reviving the original domicile and nationality as if he were dead?
Your dispatch, as I understand it, holds that it would.
I am, etc.,