Mr. Winchester to Mr. Bayard.

No. 242.]

Sir: Soon after my assumption of the duties of this post I submitted to the Department the pressing needs for urging upon the Swiss Government the negotiation of a naturalization treaty, and in doing so it was stated that, among other evils resulting from the absence of such a treaty, and the Swiss contention as to Swiss citizenship in spite of the fact of a Swiss being invested under our naturalization laws with all the rights and privileges of an American citizen, one of the most serious and common was the detention of property claimed by Switzers naturalized and residing in the United States—this detention and refusal to surrender property to the legal and equitable owner being done under the cover of most flimsy and frivolous pretexts by the local authorities and tribunals.

Through the intelligent and energetic efforts of our consul at Zurich (Mr. Catlin) a case involving considerable property was appealed from the cantonal to the federal tribunal, the Swiss supreme court, and an opinion obtained which probably is the most decisive judicial pronouncement on one very characteristic feature of such cases, and gives some assurance that the local contentions heretofore held and expressed, if properly submitted to this tribunal, must be reversed as this has been. A copy of the opinion is inclosed.

I am, etc.,

Boyd Winchester.
[Page 689]
[Inclosure in No. 242.]

Judgment of the Swiss Federal Court.

In the matter of Carl Heinrich Weber, of Zurich, in Philadelphia, State of Pennsylvania, North America, appellant, represented by Lawyer Haggenmacher,* of Zurich, concerning waiver of Swiss citizenship, the following facts appear from the documents presented, viz:

A.—Carl Heinrich Weber, of Zurich, born in 1845, emigrated in 1873 to the United States of America; he was, at the time of emigrating, and has been ever since, under guardianship in Zurich. In 1879, Weber, having acquired United States citizenship, applied for release from his rights as a Swiss citizen. His sister Maria, and his guardian, as well as the orphans’ court of Zurich, then instituted proceedings against his release on the ground that the identity of the applicant with the Zurich citizen C. H. Weber was not proven, and because the said C. H. Weber was under guardianship, and therefore, as not being competent to transact business on his own account, could not waive his Swiss citizenship.

The federal court by a decision dated September 27, 1879, rejected the latter objection as unfounded, but, on the other hand, deferred any judgment, in so far as the question of the identity of Carl H. Weber with the applicant was concerned, until sufficient further evidence could be produced. Therefore, the judge of instruction of the federal court repeatedly accorded the applicant a period of time for filing new means of proving his identity with C. H. Weber. Inasmuch as during these periods the applicant appealed merely to a comparison of handwritings which, however, the federal court held to be insufficient, the court decreed on the 10th of July, 1880, that the appellant’s application be rejected.

B.—In an application dated March 27, 1888, Lawyer Haggenmacher of Zurich renewed in the name of Carl Heinrich Weber a demand on the government council of the canton of Zurich for said Weber’s release from Swiss citizenship, furnishing proof of the fact that C. H. Weber had been an actual resident of the State of Pennsylvania since 1873; that, under the laws there in force he is competent to transact business, and that he had acquired the rights of citizenship of the United States of America. On the 29th of March, 1888, the government council of the canton of Zurich referred this application to the district council of Zurich for its own information, and for transmission to the city council of Zurich, and to all persons otherwise concerned, for action under article 7, abst. I, of the federal law of 1876. The district council in turn, March 31, 1888, referred the application, in a similar sense to the city council of Zurich, which after calling upon the guardian of C. H. Weber for a written opinion upon the subject, raised objection in a document dated May 5, 1888, to the sought-for release from citizenship, advancing the following reasons, viz, that Weber had never received his guardian’s permission to emigrate; consequently, he could not have lawfully removed his domicil from Zurich, and is therefore, according to article 6, litt. a. of the federal law of June 3, 1876, not entitled to the right of waiver of his Swiss citizenship. The government council of the canton of Zurich, by decree of June 2, 1888, referred this objection, together with the papers in the case, to the federal court for its decision.

C.—On the 31st of July, 1888, the attorney for C. H. Weber filed with the federal court an application, demanding that the objection raised against the waiver of citizenship by Carl Heinrich Weber, resident in Philadelphia, be dismissed, and that instructions be given to the proper cantonal authorities to pronounce C. H. Weber’s release from his Zurich state (cantonal,) and town citizenship. He (the attorney), goes on to state that neither Weber’s near relations in Zurich, nor his guardian there, but simply and alone the city council of Zurich, have raised objection. But the said city council’s objection was offered too late, inasmuch as it was not offered within the four-weeks limit provided by art. 7, abst. I, of the federal law of June 3, 1876, and is therefore not entitled to any further consideration. There is, moreover, no reason presented for not granting the release applied for; the appellant satisfies every requirement of the federal law of June 3, 1876; he has no longer any domicil in Switzerland, has acquired citizenship in the United States, and is also competent to transact business under the laws of the State in which he resides. It is not correct that the appellant did not receive-his guardian’s consent to emigrate.

He gave his then guardian, from his then place of residence, Munich, notice of his intention to emigrate, and the latter offered no opposition, but, on the contrary sent him, shortly before his departure, 400 francs, to enable him to provide himself with new clothing. Shortly after his arrival at Philadelphia, the appellant informed his guardian of his address, but received no answer thereto; he also, though at intervals, [Page 690] corresponded with his relatives at Hirslanden.* At no time during the entire period of his stay in Philadelphia was he summoned by his guardian, by the orphan’s court or by any other authority whatsoever, to remove his domicile to his home township (Heimath-Gemeinde) or to any other place whatsoever. This certainly implies the guardian’s consent to his being where he at that time was. In the former proceedings relative to the appellant’s release from Swiss citizenship, ground was never taken that he had emigrated without his guardian’s consent, and his present guardian sent him, by consent of the orphans’ court, a sum of money he had asked for, for the purpose of making a transient visit to his former home.

D.—The government council of the canton of Zurich transmitted the view taken by the city council of Zurich of this complaint. The city council states as follows: The appellant’s guardian, in his report to the city council, advised the dismissal of the proceedings for release; the views of Weber’s relatives had not been consulted. But the guardianship authorities and the guardian are entitled to raise objections, even without assistance from the relatives. Article 7 of the federal law of June 3, 1876, couples no menace with the fixing of a period of four weeks for the filing of objections. It would therefore be inadmissible to declare inoperative an objection filed after the expiration of such period, and all the more so, as the right to file objections serves simply for the protection of the public interests.

The fixing of a limit of time is therefore simply a rule of order. The consent of not only the guardian, but also of the guardianship authorities (the orphans’ court), if not, indeed, that of the district council, was requisite to a lawful change of domicile by the ward. What communications the appellant made to his former guardian can not now be ascertained, as said former guardian is deceased. It is certain, however, that the orphans’ court has at no time been approached for a consent to a change of domicile. If said orphans’ court never summoned the appellant to return to Zurich, such fact is entirely unimportant, for the reason that the said court could not have compelled such return; moreover, indeed, Weber himself states that the orphans’ court allowed the money necessary for his return journey to be sent to him.

The federal court takes into consideration the following:

The city council of Zurich is undoubtedly entitled to present objections to the release of C. H. Weber, a citizen of the town of Zurich, from his citizenship. Its objections, moreover, can not be ruled out on account of delay in filing them. It is true that such objections did not ensue within a period of four weeks, reckoned from the time when the application for release was communicated to the city council. But the limit provided in article 7 of the federal law of June 3, 1876, is not one (according to the beginning, duration and end of a limit exactly prescribed by law) to the neglect of which the law would attach preclusive consequences. The law rather leaves the fixing of the limit of time for filing objections in individual cases to the cantonal governments inasmuch as it simply decrees that the limit to be fixed shall not exceed four weeks; it does not further prescribe that the neglect to observe such fixed limit shall result in rendering the right of objection inoperative. In this position of the case the limit is simply to be regarded as a limit of order, and this all the more since the question whether the legal conditions incident to a waiver of Swiss citizenship exist, must in any event be examined into officially by the authorities.
It is established that the appellant has, in point of fact, resided in Philadelphia since 1873; that under the laws there in force he is competent to transact business, and that he has acquired United States citizenship. The city council of Zurich contests his competence to waive his Swiss citizenship, simply because he, as a ward, without consent from the guardianship authorities, could not legally change his domicile. Now, as a question of principle, it is correct that a ward can not lawfully change his domicile without his guardian’s consent. On the other hand, it is not requisite that such a consent be expressly outspoken; it can rather occur tacitly, and thus be concluded by actual circumstances. If, especially, both the guardian and the guardianship authorities simply allow a change of the ward’s residence, they being cognizant of it, to take place without their protesting against it, and calling upon the ward to return, it is at all events, as a rule, to be presumed that they have consented to said ward’s removal to his new place of residence. So far as the guardianship authorities consider the change of residence as prejudicial to the ward’s interests, it is certainly their duty, where possible to prevent it or thwart it. If, therefore, they remain silent in regard to a change in his place of residence by the ward, they being cognizant of the same, it is certainly to be regularly presumed that such change takes place because they have no opposition to offer against it. The circumstances that in a case of emigration to a foreign country, especially to those beyond the sea, the guardianship authorities are not in position directly to compel the ward to return does not affect the question at all. Even though the said authorities may lack any power of coercion over the person of the ward, they can yet ultimately bring an influence to bear upon his course, as for instance by [Page 691] granting him the enjoyment of his fortune only in so far as he complies with his guardian’s instructions in regard to his choice of his place of residence. Now, in the present case, it may safely he presumed that the guardianship authorities consented to the appellants emigrating; at no time did either guardian or guardianship authorities, notwithstanding that the ward’s place of sojourn was known to them, express, in any way whatever, their disapproval of his emigrating: in particular, during the former proceedings for the appellants release from citizenship it was not even alluded, to from any quarter, that said appellant had emigrated in an unlawful way, without his guardian’s consent; the appellant’s right of waiver of his Swiss citizenship was at that time contested on entirely different grounds.

The federal court has accordingly recognized as follows:

The objections of the city council of Zurich against the release of Carl Heinrich Weber of Zurich, born 1845, from his right of citizenship, are dismissed, and the government council of the canton of Zurich is requested to confer upon the appellant a release from his Swiss cantonal and town citizenship.
The fees, amounting toll francs for drawing up this decision, and the charges for postage, are to be charged to the objector.
This decision is to be communicated in writing to the appellant, as well as to the government council of the canton of Zurich for its own information and for transmission to the city council of Zurich.

Lausanne, October 19, 1888.

In the name of the Swiss federal court,

A. Rapp, President.

Roth, Court Clerk.

A true translation and copy.

George L. Catlin,
United States Consul.
  1. For George L. Catlin, U. S. consul at Zurich, attorney for appellant.
  2. Representing Mr. Catlin, U. S. consul at Zurich, attorney for Carl H. Weber.
  3. A suburb of Zurich.