The Acting Secretary of State to the Swiss Chargé .
Washington , July 16, 1906 .
Sir: I have the honor to acknowledge the receipt of your note of the 28th ultimo in continuation of the subject of your note of the 1st of May, in which your legation requested the admission to this country of Elisabeth Abeldt-Fricker, an insane pauper of Swiss origin, and her minor child.
[Page 1367]The reasons advanced by your note for the further consideration of this case are two: First, that Mrs. Abeldt-Fricker was sent away from the United States by her husband, an American citizen, who defrayed her traveling expenses, and that when she arrived at her home in December last she was already non compos, so that it can not be assumed that her return was a free exercise of her own will; second, by the terms of the decree of divorce it did not go into effect until May 20, 1896, so that up to that time she was herself a citizen, because her husband was such, and before this date the Swiss legation had preferred a request for her repatriation.
The department finds it impossible to acquiesce in the views of the Swiss legation for several reasons. As the matter is presented, it raises a question which it is for the courts and not for this department authoritatively to determine, namely, the degree of sanity of Mrs. Abeldt-Fricker when she departed from this country. The circumstances under which the divorce proceedings were conducted prior to her departure are unknown, but an examination of the decree of divorce does not indicate any mental deficiency in the respondent. It would appear that a compromise judgment was rendered and that the respondent was given the custody of the child, an act which no court would have done if the respondent had shown traces of insanity. It would seem to be impossible to determine when the unfortunate woman’s reason departed from her; and this department, from the facts before it, can not say that she was incompetent to form an intention to return to her home in Switzerland when she left the United States last winter.
As the matter stands, it would appear that her return to her native allegiance was a voluntary act upon her part. When her acts ceased to be voluntary it is not for the department to determine. But unless she made some further expression of her will after her departure from this country, it would seem that the act of her departure must be considered as her final expression of intention to abandon American citizenship, because her present mental condition has made it impossible further to declare her will.
In this view of the matter, the second consideration advanced by the legation, namely, that Mrs. Abeldt-Fricker was an American citizen until May 20 last, is ineffectual. It will probably be admitted that she had the right to abandon her American citizenship at will, before the divorce decree became operative. But after the decree went into effect there can be no doubt that her original intention to return to Switzerland must be held to be a continuing one and that, therefore, after May 20 last, her alienage became reestablished by virtue of the divorce decree, when considered in connection with the departmental practice in analogous cases.
With further respect to the second question raised by the legation, the department can only say that, although the Swiss Government requested Mrs. Abeldt-Fricker’s repatriation before the date set by the decree of the court for the divorce to go into effect, it is not shown that such request was made at the instance of anyone duly qualified to act for her, and in the absence of such authority it can not be assumed that the Swiss Government was empowered to act in the premises.
Whatever may be the department’s attitude, however, its decision would not be controlling upon a court of law, and if Mrs. Abeldt-Flicker [Page 1368] were sent to this country and she should be held at Ellis Island under an order for deportation as an insane alien, the only adequate review of her case open to her would be by appeal to the federal courts. The two questions raised by your legation, as well as any other pertinent facts or arguments, would then be examined by the court, which would render its judgment independently of any decision previously reached by the executive department of this Government.
A further discussion of the case, therefore, would appear to have no practical result, since the question involved is whether Mrs. Abeld-Fricker is or is not a citizen, and this question, as has been said before, is one which must be decided by the courts and not by this department or by the Swiss Government.
Accept, etc.,