Your No. 30, bearing date the 21st March, in reply, confirmed my decision
as taken with the attorney for the claimant, viz: that under the 6th
article of the treaty the question must be decided by the courts to
which it had been referred. At the same time, it appeared to me, that
the general tenor of your dispatch left it discretionary with me to
present the subject to the government if such course should be deemed by
me advisable, and hence in my No. 58 I remarked that it was not
impossible that the subject might give rise to further
correspondence.
Subsequently the attorney again addressed me and implored the action of
this legation as the last and only hope for success. Upon reflection and
after examining the question with some care, I determined to address the
federal council, if not with the confident expectation of success in
this particular case, at least with the hope of presenting it in such a
manner as would enable me to touch with some effect indirectly upon the
question of emigration.
I have now the honor to inclose a copy of my communication to the High
Federal Council, as also of their decision, which, it gives me a
pleasure to say, sustains the grounds assumed by me, that this case is
covered by the treaty, and that as an American citizen, in the absence
of other legal objections, the boy, John, being the legitimate child and
heir of Anna Maria Hürlimann, née Suter, is
entitled to recover the money at issue.
This decision settles certain principles that will hereafter have an
important favorable bearing upon many of the numerous questions
constantly arising between natives of the canton of Aargau—who become
naturalized citizens of the United States—and the communal or cantonal
authorities thereof, and, so far as I can learn, reverses the practice
obtaining, until the present, in like cases.
I hope my action may be approved.
Mr. Harrington to the High Federal Council.
Legation of the United
States,
Berne;
June 6, 1868.
The undersigned, minister resident of the United States, begs to
submit for the consideration of the high federal council a question
now pending in the canton of Aargau, which has arisen under the
following circumstances:
One Anna Maria Suter, a native of Oberentfelden, canton of Aargau,
emigrated to the United States and married in Philadelphia, on the
2d of January, 1855, an American citizen named John Hürlimann. She
bore issue one son, born on the 15th of March, 1857, who was
baptized John. The mother, Anna Maria, died on the 29th of March,
1861.
Subsequently the parents of the said Anna Maria died in the canton of
Aargau, leaving a fortune, of which the portion falling to the said
Anna Maria as one of the heirs, if living, or to her heirs, if
deceased, amounted to 2,344 77 francs, which is now in the hands of
the communal authorities of Oberentfelden.
In order to collect this money for the son and heir of Anna Maria
Hürlimann, the father, John Hürlimann, Was duly appointed by the
proper authorities of Philadelphia the guardian of his child, and as
such he executed a power of attorney funning by the substitution in
favor of one Strähl, an attorney of the canton of Aargau.
All the necessary certificates and papers, that is, of marriage,
birth, death, and guardianship, with power of attorney, are
produced, and are in no way disputed.
The attorney Strähl demanded the payment of the money. The communal
authorities refused such payment on the ground that the marriage of
the said Anna Maria not having been duly promulgated within the
canton as prescribed by law, could not be acknowledged by them as
valid, and consequently the claims of the boy John must be rejected
in consequence of his disputed legitimacy.
The attorney then appealed to the cantonal authorities to recognize
the marriage and to direct the payment of the money as demanded.
This was refused on the ground that the laws of the canton require
the prior publication of the bans of marriage within the canton, and
the prior assent of the authorities thereto, in order to a legal
marriage of any of its citizens, neither of which prerequisites had
been observed by the girl Anna Maria.
While thus declaring their adherence to the view taken by the
communal authorities, the question of the legal status of the boy
John was referred by them to the courts for final decision.
The judgment of the court, so long as the cantonal authorities
maintain their decision of not recognizing the legality of the
marriage of the girl Anna Maria, cannot be doubtful. It will
necessarily be adverse to the claimant. The illiberality, not to say
injustice, of the Aargovien law which denies righteous claims to its
citizens settled for many years in America, and married there
according to the laws of the United States, has been pointed out by
the supreme court of that canton. (Reports 1851, p. 10.) The
undersigned begs leave to submit briefly some of the considerations
that induce him to hope that the authorities of the canton of Aargau
may reconsider their decision
[Page 195]
through the intervention of the high federal
council, which he has now the honor to request.
It is just and proper that the authorities of the canton of Aargau
should prescribe the conditions upon which the citizens thereof
shall be permitted to introduce foreigners into the canton, and
invest them with the full rights and privileges of native citizens.
Thus an Aargovien marrying out of the canton, proposes to invest his
wife and her children, if any there shall be, with all the cantonal
and communal rights and privileges which he himself enjoys, and if,
by any unforeseen circumstances, they unfortunately are reduced to a
state of poverty, such wife and children, if the forms of law in
regard to marriage have been fully complied with, would have, of
right, certain claims upon the canton. Without, therefore, some
checks being thrown around the introduction of new citizens into the
canton, it is by no means impossible that the pauper burdens might
be onerously, if not alarmingly, increased. These considerations, it
is believed, enter into, and in part prompt the policy of those
laws.
When, however, an Aargovienne marries a citizen of the United States,
according to the laws governing the domicile of her husband, the
considerations above recited are inapplicable and fall to the
ground.
By the act of marriage she becomes clothed with the nationality of
her husband and at once assumes her place as a citizen of the United
States; while, at the same time, she forfeits and annuls all the
cantonal and communal rights and privileges otherwise of right
attaching to her by virtue of her nativity. This view has not only
been recognized, but more than once put into practice in the cantons
of Switzerland, and, doubtless, will not be disputed; and further,
if an Aargovien woman duly married to an American citizen, but
without having fulfilled the prerequisites of her cantonal laws,
should with her children be remitted to the care of her native
canton under the third article of the treaty, upon the ground that
the laws and authorities of her canton did not recognize the
marriage as legal, it cannot be doubted that the decision of the
cantonal authorities would be that the woman and her children were
American citizens, and consequently had no claims upon the canton
for support; and such decision, per se, in
the opinion of the undersigned, would be clearly just and
defensible.
The question therefore presents itself, is it not the presumption of
law that the word citizen as used in the law means male citizen? Does not that construction meet fully the
policy and intent of the law? Will not any other construction
militate against justice and morality?
The authorities of the canton of Aargau encourage in every possible
manner the emigration of its citizens, even to the point of
supplying the funds, when necessary, to such as may be induced or
have the desire to leave the canton, but not the means of so doing.
Once landed in the United States, it is the wish of those cantonal
authorities that the emigrants should remain there, and forever
relieve them, the authorities, from all contingent liability for
their future support; for it is not to be supposed that money is
furnished for a pleasure trip to the United States, be it of longer
or shorter duration, or that it is given for any other purpose than
that herein stated.
Such relief can only be obtained by their emigrants becoming citizens
of the United States. They are therefore encouraged to become such
citizens with the sole view of relieving the canton from all further
claims therefrom.
The cantonal authorities, of course, cannot, nor is it their wish to,
prescribe the terms upon or the forms under which their emigrants
shall become citizens of the country wherein, at the wish of these
cantonal or communal authorities, they have taken up their abode.
Once made citizens of that country the authorities have a legal bar
to any subsequent reclamations they may prefer against the canton;
for no foreigner can obtain that privilege without having previously
and in the most solemn manner forsworn and renounced, under oath,
all foreign allegiance, and especially his citizenship of and
allegiance to the country and place (by name) of his nativity; and
therefore the simple presentation by an emigrant of an American
passport, or of his certificate of naturalization as a citizen of
the United States, is, in fact, though not in form, a renewal of
renunciation of his original citizenship and allegiance, and may so
be considered by the Swiss authorities.
If, therefore, the authorities hold the issue of any marriage of an
Aargovienne, duly celebrated according to the laws of the United
States, with an American citizen, notwithstanding the prior
formalities prescribed by the cantonal laws had not been complied
with, to be legal so far as to deprive her and her issue of all
further claims upon her canton in consequence of their having become
American citizens, is it just, when they present themselves as
rightful claimants to property, that interested parties should be
sustained in their attempts to appropriate to themselves that to
which otherwise they have no shadow of title or right, upon the
ground that certain cantonal prerequisites have not been fulfilled?
May not the court well proclaim the illiberality of a law that is
willing, at the instance of interested parties, to declare that a
woman, duly and legally married according to the laws of the country
of which she is a citizen, has been living a life of immorality and
in opposition to the laws of God and man, and attach to her children
the stigma of illegitimacy?
[Page 196]
As before stated, and as is well known, the authorities encourage the
emigration of its citizens with a view of their becoming citizens of
the United States. Is not such encouragement an assent to their
becoming such citizens under the provisions of the laws of the
United States? Are they not expressly told as another inducement to
emigration, that they may, by labor and good conduct, become
well-to-do citizens of that country, and may not such encouragement
be taken as an assent in advance to their naturalization by whatever
forms to be obtained, one of which, for females, is by marriage with
an American citizen? The undersigned is well aware that these
general views address themselves to the cantonal rather than to the
federal authorities.
The undersigned however believes, and would submit to the
consideration of the high federal council, that the claims of the
boy, John, are covered by the provisions of the treaty between the
two countries.
Article five of that treaty declares that “the citizens of each one
of the contracting parties shall have the power to dispose of their
personal property within the jurisdiction of the other by sale,
testament, donation, or in any other manner, and their heirs,
whether by testament or by ado intestato, or
their successors, being citizens of the other party, shall succeed
to the said property or inherit it, and may take possession thereof
either by themselves or by others acting for them,” &c.; and
article six declares “any controversy that may arise among the
claimants to 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.”
Section five is express in the declaration that citizens of each of
the contracting parties shall have certain powers, and that their
“heirs, whether by testament or ado intestato
or their successors, being citizens of the other party, shall
succeed to said property or inherit it,” &c.
There can be no question as to the girl, Anna Maria, having, by the
act of the marriage, become an American citizen; nor is there a
question as to the claimant being an American citizen; nor is it
disputed that the property in question is the rightful property of
Anna Maria Hürlimann, née Suter, if living,
or of her heirs if deceased. The question referred to the courts for
decision, therefore, is as to the status of
an American citizen, which the undersigned contends is a subject for
the American and not for the Aargovien courts; and further, that
while the order of succession may be fixed by the will of the
testator and be governed by the laws of the country of the testator,
the question of heirship can only be decided by the laws of the
country to which the heir belongs, and therefore, under the treaty,
the status of the boy John should be decided
by the American and not by the Aargovien law.
No American court would deprive an Aargovienne wife and her children
of the property of the husband and father, because of an Aargovien
decision or law pronouncing the marriage illegal, or the children
illegitimate, for want of Aargovien prerequisites of marriage.
But looking to the Aargovien civil law, the undersigned claims that
thereunder the boy John is entitled to the property in question. It
is not in this instance the rights of a husband to the property of
Ms wife that is called in question, but the rights of his child. If
the undersigned is rightly informed, the Aargovien law distinctly
declares that the children of illegal marriage shall have all the
rights of children of recognized marriages. If, therefore, a
marriage duly celebrated in the United States be declared by the
Aargovien law as illegal, and as a consequence the children
illegitimate, the civil law itself, if the above postulate be
correct, while it would deprive the husband of the deceased wife’s
property, gives to the children of such a marriage the same rights
as to the children of a legitimate marriage. But the undersigned
cannot admit the competency of the Aargovien courts to decide upon
the status of an American citizen, and he
contends that all that should be required by the Aargovien
authorities to acknowledge the claims of the child, John Hürlimann,
is the proofs of the legal marriage according to the American law,
and this proof is full and complete, as well as the evidence that
the boy John is an American citizen.
The undersigned ventures to express the confident hope, that after
examination, the high federal council will concur with him that the
status of the boy John is covered by the
treaty and the legal documents transmitted herewith; and that as an
American citizen, (as well as in pursuance of the civil law,) he is
justly entitled under the treaty to succeed to the property in
question, and to take possession thereof by the attorney duly
appointed for that purpose.
In submitting this question the undersigned begs your excellency and
the high federal council to receive the assurances of his highest
consideration.
His Excellency Dr. I. Dubs,
President of the Swiss Confederation,
Berne,