Mr. Harrington to Mr. Seward.

No. 61.]

Sir: Under date of 9th February last (my No. 50) I had the honor to submit in detail for your consideration the case of John Hürlimann, of Philadelphia, a minor claimant to certain moneys then in the hands of the authorities of Oberentfelden, canton of Aargau, as the property of His mother, deceased, the delivery of which had been refused on the ground that prior to her marriage the mother had not fulfilled the prerequisites of her cantonal laws, and therefore the marriage could not be recognized as legal, and as a consequence the claims of the boy, John, were barred by reason of his illegitimacy. The intervention of this legation was asked and the case was submitted for instructions.

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.

[Page 194]

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.

With greatest respect, your obedient servant,

GEO. HARRINGTON.

Hon. William H. Seward, Secretary of State, Washington, D. C.

Mr. Harrington to the High Federal Council.

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.

GEO. HARRINGTON.

His Excellency Dr. I. Dubs, President of the Swiss Confederation, Berne,

[Page 197]

Mr. Harrington to the High Federal Council.

The undersigned, minister resident of the United States, has the honor to acknowledge the receipt of your excellency’s communication of the 14th instant, in which is announced the decision of the high federal council in the matter of John Hürlimann, which the undersigned had the honor to submit for their consideration under date of June 6, 1868.

The undersigned begs your excellency to convey to the high federal council his acknowledgment for their prompt and favorable action, and he begs to renew the assurances of his highest consideration.

GEO. HARRINGTON.

His Excellency Dr. I. Dubs, President, &c., &c.

[Translation.]

The Federal Council to Mr. Harrington.

On returning to the United States minister resident in the Swiss Confederation the package of documents accompanying his note of the 9th of June last, in relation to the claim of John Hürlimann, the federal council announces that it has considered the report of the authorities of the canton of Aargau, dated 29th ultimo, on this affair, and now informs said authorities that it concurs in their decision, that John Hürlimann, senior, was a citizen of the United States; that his marriage with Anna Maria Suter was in accordance with the laws of the United States, and that the male issue of that marriage is considered as the legitimate descendant of an American citizen; therefore no Swiss authority can decide the civil status of an American citizen, because the laws of the United States, and not those of the canton of Aargau, are to obtain in this matter.

The federal council also observes, that, by virtue of an international treaty still in force, between Switzerland and the United States of America, an American citizen has the right, in case of successions, to be treated as a Swiss; and, therefore, John Hürlimann, junior, must be treated in the same manner as if he were the issue of a lawful marriage of Aargovien citizens.

From the above, the federal council judges the refusal of the communal council of Entfelden to be contrary to the treaty, and that it ought to be reversed, inasmuch as no civil suit for the succession is intended to be prosecuted.

The federal council has instructed the authorities of Aargau to make this known to the heirs, for their guidance, and to report the result of its intervention in the affair.

Reserving the privilege of further communications on the subject, the council repeats to Mr. George Harrington the assurance of its high consideration.

DUBS, President of the Confederation for the Federal Council.
SCHIEFS, Chancellor of the Confederation.

Hon. George Harrington, &c., &c., &c., Berne.