Mr. Seward to Mr. Harrington.
Sir: Your dispatch of the 9th of February, No. 50, has been received. In that communication you set forth the following facts, namely: that Anna Maria Suter, a native of the canton of Aargau, in Switzerland, emigrated to the United States, and was married at Philadelphia on the 2d of January, 1855, to John Hürlimann, a citizen of the United States, residing in that city; that she bore a son on the 15th of March, 1857, who was baptized John, and that she died on the 29th of March, 1861; that afterwards the father of the said Anna Maria Suter died in the canton of Aargau, leaving a fortune, a portion -of which would have fallen to the said Anna Maria, as one of the heirs of the father, if she were living, or to her legitimate issue if she were dead; that proceedings at law have been instituted in Switzerland by John Hürlimann, the father of the aforenamed child, John, son of the said Anna Maria, to recover the portion of the estate beforementioned; and that the legitimacy of the child is denied under law of the canton of Aargau, upon the ground that the marriage in the United States was celebrated without a compliance with the preliminaries prescibed by the laws of the canton. The attorney for the child requests your intervention, and you solicit instructions on the subject.
You give no facts from which we can determine whether the mother’s domicile, immediately before her marriage, remained in Switzerland or had been established in this country; of course her marriage fixed that domicile here.
That fact, however, may not have had any retroactive bearing upon the mother’s antecedent domicile. The law of Congress which declares that women of foreign birth who marry citizens of the United States thereby themselves become citizens, was not enacted until February 10, 1855, a month after the marriage.
Our law treats as valid a marriage which is valid by the law of the place where it was solemnized.
The law of Switzerland, and in general those of continental Europe, while admitting that the law of the place controls as to the form of marriage, nevertheless holds that in respect to the capacity of the person to contract marriage the law of the domicile travels with him, and invalidates [Page 193]the union wherever contracted, if it be against the law of his domicile.
It may, however, I think, be successfully maintained that, even under the European jurisdiction in relation to the capacity of the person to contract marriage, the bona fide establishment of a new domicile with the intention of a permanent residence therein, relieves the emigrant from the bonds of his native law.
Under any circumstances, this, in the first instance, would be a question for the Swiss courts; but under the special provision of our treaty with Switzerland, it is a question for those courts finally. The 6th article, 11th United States Statutes at Large, declares that any controversy that may arise among the claimants of the same succession as to whom the property shall belong shall be decided according to the laws, and by the judges of the country in which the property is situated. I think it to be a just construction of this section that it takes the question altogether out of the domain of diplomacy.
It is proper, however, to express the opinion here, that whether the child now in question shall be held by the courts of Switzerland to be legitimate or illegitimate, he is nevertheless a citizen of the United States.
I am, sir, your obedient servant,
George Harrington, Esq., &c., &c., &c.