Mr. Harrington to Mr. Seward.
Sir: The intervention of this legation has been asked in a case reported to me as follows:
One Anna Maria Suter, a native of Oberentfelden, canton of Aargau, Switzerland, emigrated to the United States and married in Philadelphia on the 2d of January. 1855, an American citizen named John Hürlimann, a tailor of that city. 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 father 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 legitimate issue 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, running by substitution in favor of one Strahl, 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 nowise 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, the marriage 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. The prayer of the petitioner on both points was rejected, and as the co-heirs disputed the claims of the boy John, the ultimate disposition of the inheritance was referred to the courts for decision. It was at this stage of the proceedings that the appeal was made to this legation with a view of obtaining a reversal of the decision of the cantonal authorities in relation to the marriage, the attorney alleging the probable inutility of legal proceedings under the circumstances, and pleading the inability of the parties to give the necessary security. Inasmuch as the 6th article of our treaty provides that “any controversy arising between the claimants to the same succession shall be decided according to the [Page 190] laws and by the judges of the country in which the property is situated,” I determined to await the action of the court, and in the mean time submit the question for instructions. I transmitted to the attorney a certificate that the marriage was a legal marriage according to the laws of the United States, and that the issue thereof was a legitimate issue, and the boy John as fully a citizen of the United States as if the mother had been a native thereof; and at the same time protested against the attempt of the authorities of Aargau to invalidate the marriage of an American citizen so solemnized, and against their assumed right to declare the issue of such a marriage an illegitimate issue;
It must be affirmed that the laws of the canton of Aargau in relation to marriage explicitly declare the prior publication of the bans within the canton, and the previous assent of the authorities thereof, to be necessary to a recognized legal marriage of any of its citizens.
The questions that presented themselves to my mind are—
1. Notwithstanding the letter of the law makes use of the word “citizen” without distinction of sex, is it not the presumption of law that the word “citizen” so used means male citizens?
2. Does not the language of the fifth article of our treaty so qualify, or determine the signification of the word “citizen” as to render the laws of domicile in question inapplicable to the case herein presented? that is to say, is not the boy John, notwithstanding the laches on the part of the mother, a citizen of the United States within the meaning of the treaty, entitled as such, under article fifth, to “succeed to the said property, or inherit it,” and “to take possession thereof,” in the absence of other legal objections, “either by himself, or by another party for him?”
The laws in relation to the marriage are, of course, enacted to give effect, within the canton, to a well-defined and recognized public policy. The great object and aim of that policy appears to be the interdiction to the spread of pauperism, which undoubtedly is the great bane of Switzerland. It bears most heavily upon property, demanding in many of the cantons a serious percentage of incomes, and the Swiss may with just pride point to their many and well-regulated public and private institutions, organized for the relief or the amelioration of the sufferings of the native poor. Their support, however, imposes such heavy and serious burdens upon property as to demand the exercise of all proper precautions to prevent their increase.
The laws, by prescribing the prior publication of the bans within the canton and the previous assent of the authorities,, answers, in part, this great demand, by placing it within the power of the authorities to prevent, in some measure, the increase of a population liable, on the death or disability of those upon whom they naturally depend for support, to be thrown as paupers upon the community at large.
Each canton not only imposes upon itself a dutiful care of its resident native poor, but recognizes the right in all other cantons to remit to the canton of origin such of their residents of foreign birth as have become, or are immediately liable to become, public burdens; and this principle is recognized by the third article of our treaty, which stipulates that each country shall at all times receive such of its citizens as may be returned to it by the other, in compliance with the laws regulating morals and mendicity. Stringent laws are justifiable, if not necessary, to prevent imposition.
A citizen of the canton Aargau in taking to himself a wife of foreign origin proposes to invest her and her children with his own nationality, and with all the rights and privileges appertaining thereto, which comprise, [Page 191] among others, the not unimportant one of a future contingent support by the canton; and the authorities may therefore justly claim the right to prescribe the terms upon which such rights and privileges shall be conceded, and to declare that the laws of domicile in relation to marriage shall follow and adhere to all its citizens during any temporary sojourn abroad.
On the other hand, a female native of the canton of Aargau, intermarrying with a foreigner, divests herself of her nationality, and at the same time, at once and forever, extinguishes all her cantonal rights and privileges inherent by virtue of her nativity, and removes from her cantonal authorities all present and future cantonal liabilities on account of herself and of her children. As an Aargovienne she ceases from that moment to exist, and the laws of domicile, so far as they relate to a participation in cantonal or communal property or privileges, cease to operate a corollary that the authorities would have been prompt to recognize and assert had the boy John, instead of appearing as a claimant to property, been remitted, under article three of the treaty, as a pauper to the cantonal authorities for support.
Practically, under the laws, there is little difficulty, even for the poor, (none with the well-to-do,) in obtaining a license to marry, when both parties are natives of the same commune, inasmuch as a legitimate family imposes no greater contingent liabilities upon the state than the not unlikely equally large illegitimate family that would follow refusal. Nor is there difficulty in regard to a license for a female desiring to intermarry with a citizen of a foreign canton, as thereby her cantonal authorities would be relieved of all contingent liabilities for the support of herself, as well as of her children; and the poorer the applicant the more prompt the compliance.
Reverse the question, and the eventualities are carefully scrutinized before a license is granted, the laws of propriety or of morality having little or no weight when the great question of pauperism is involved.
The Swiss federal constitution confers upon each canton the right to expel, or to remit to the canton of origin, any foreign residents who may fall to the public charge in consequence of poverty. It may, therefore, be incumbent upon the authorities, when notified of an intended marriage of a female native of the canton with a foreigner, to insure a compliance on the part of such foreigner with the laws of his domicile. Otherwise the marriage may subsequently be declared invalid, and the wife, with her nationality thus declared unchanged, may be remitted, burdened it may be with children, to her canton of origin for support. This only known argument in support of the laws of domicile attaching to females marrying abroad falls to the ground when the foreign laws under which the marriage may have been solemnized recognizes the marriage as legal and binding, and proclaims the nationality of the wife to have been merged in that of her husband.
It appears that the purposes and intent of the public policy in relation to marriage, as well as of the laws, are fully met by the admission that the laws of domicile in relation to marriage follow and adhere to all male citizens, so long as their allegiance remains unbroken; and that any other construction, the more especially if such other construction is made to vary to suit selfish and varying circumstances, offends all laws of justice and morality.
It is not improbable that these remarks may be considered, if not foreign, at least as irrelevant or unnecessary to the consideration of the question upon which I ask the instructions of the Secretary.
John Hürlimann, a citizen of the United States, having married one [Page 192] Anna Maria Suter, a native of the canton of Aargau, within, under, and according to the laws of the State of which he was at the time a resident and a citizen, is their child John, the issue of such marriage, a citizen of the United States within the meaning of article five of our treaty with Switzerland, and entitled thereunder, notwithstanding the alleged laches of the mother, to inherit, as her heir, the property to which otherwise he has acknowledged title? If yes, and the intervention of this legation is directed, shall such intervention precede or follow legal proceedings before the court to which the “ulterior disposition of the inheritance” has been remitted?
I have the honor to be, with great respect, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.