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Washington, September 29, 1894. SIR: I have the honor to transmit herewith for your information a copy of a circular of this date, relative to the admeasurement of Norwegian vessels, etc.
It is suggested that the attention of the minister of Norway and Sweden be invited to the action taken by this Department in the matter. Respectfully, yours,
S. WIKE, Acting Secretary.
Washington, D. C., September 24, 1894. To Collectors of Customs :
Department circular No. 92, of June 30, 1894, concerning the admeasurement of Norwegian vessels, is modified in the following particulars:
The Norwegian Government, by a decree issued August 24, 1894, will accept American certificates of tonnage containing an appendix stating the measurement of spaces where they may be deducted under the new Norwegian rules, but may not be deducted under the laws of the United States, as follows:
NAVIGATION SPACES. (1) Any spaces set apart exclusively for keeping charts, instruments, signal apparatus, and signal lights, etc., necessary for navigation.
(2) Spaces for the anchor capstan, the steering apparatus, and the donkey engine and machinery, if arranged to work the vessel's pump.
(3) Spaces set apart exclusively for boatswain's stores. (4) Spaces set apart for storage of sails.
Provided that the deduction for each of the spaces enumerated in 3 and 4 not to exceed 24 per cent of the vessel's gross tonnage.
(5) Any excess of crew space over 5 per cent of gross tonpage, including therein mess rooms, bathrooms, and water-closets of reasonable size for use of officers or crew, cook's galley, and distilling galley.
Upon application by the master of any American sailing vessel about to proceed to a Norwegian port you are authorized to measure the spaces enumerated, and attach the results of such measurement to the certificate in an appendix, duly signed.
Upon application by the master of any American steam vessel about to proceed to a Norwegian port you will be further instructed.
You will accept without readmeasurement Norwegian certificates issued previous to September 14, 1893.
You will accept without readmeasurement Norwegian certificates of sailing vessels issued subsequent to September 14, 1893, adding to their net tonnage the measurement contained therein of spaces above enumerated which are permitted by the laws of Norway, but not permitted by the laws of the United States, and any excess over 5 per cent of gross tonnage allowed for crew spaces.
You will accept without readmeasurement the certificate of gross tonnage of Norwegian steam vessels issued subsequent to September 14, 1893, and the measurement of crew spaces, provided the same does not exceed 5 per cent of the gross tonnage. As the Norwegian law governing the deduction for propelling power is substantially different from the law of the United States, you will measure the engine, boiler spaces, etc., according to the laws of the United States, and ascertain net tonnage as prescribed by law.
EUGENE T. CHAMBERLAIN,
Commissioner. Approved: *S. WIKE,
ABDUCTION OF CONSTANCE MADELEINE HIS."
Mr. Blaine to Mr. Washburn.
DEPARTMENT OF STATE,
Washington, March 1, 1892. SIR: I have to acknowledge the receipt of your dispatch No. 1122 of the 6th ultimo, relative to the case of Constance Madeleine His. In accordance with its suggestion, the Hon. John De Witt Warner, M. C., who first presented the case to the Department, was invited to furnish any additional facts which, in the meantime, had been reported to him by Mr. Roberts, Mrs. His's counsel in Switzerland. On the 25th ultimo he submitted a statement, a copy of which is herewith transmitted for your information. From this communication and from his previous ones, the case, so far as pertinent for the present purpose, may be briefly summarized as follows:
In the year 1883, Carrie A. Turner, a citizen of the United States, and Albert His, a citizen of Switzerland, intermarried. At the time they were both domiciled in New York City and continued to reside there. July 23, 1887, there was born of this union a child, named Constance Madeleine. A few months later, or in the autumn of 1887, Albert His returned to Switzerland, where he has since resided. The wife remained in New York with her child, whom, as well as herself, she supported by her earnings. In the autumn of 1889 Mrs. His was served, at New York, with papers in a suit of divorce begun by her husband in the district court of Zofingen, canton of Aargau. She went to Switzerland to defend the suit, and having succeeded in preventing a divorce on the grounds asked, Mrs. His herself, in the same court, secured an absolute divorce on the 22d of January, 1890. The judgment of the court, on the request of both parties, awarded to the mother the custody of the child and her upbringing and education. The child was not then and never had been in Switzerland.
Returning to America, Mrs. His continued to support her daughter antil Albert His came to New York, and on May 4, 1891, abducted the child by stealth and unlawfully took her to Switzerland, where he now detains her. I need not detail the judicial proceedings in Switzerland since the child was thus unlawfully taken within its jurisdiction, and the baffled efforts of Mrs. His to secure possession of her through the medium of the Swiss courts. The obstacles interposed and the results so far afford a ground, at least, for the complaint made in Mrs. His's behalf of a denial of justice. That feature of the case, however, as
To show the history of this case, correspondence exchanged in 1892 and 1893 is necessarily printed. 2 Not printed.
well as the question now again sought to be raised regarding the ability of the mother to properly care for her child, it is unnecessary to consider at this time. There is a proper forum and a proper time for the cousideration of that question when the child has been returned within the jurisdiction of this Government.
The child Constance Madeleine His was born in the United States and is an American citizen. What rights she might have on attaining majority to claim Swiss citizenship on account of the Swiss citizenship of her father, are immaterial in this connection. She was never lawfully within the jurisdiction of the Government of Switzerland, and is now and for many years will be incapable of exercising any choice. I am surprised to find that one of the principal reasons stated in the judgment of the superior court of the canton, January 15, 1892, for upholding the unlawful act of Mr. His and permitting him to profit by his own wrong is the fact that the child is an American citizen. The court says:
If taken to its mother, that is to America, the child would be withdrawn from the effective power of our decree because, although it is entitled to Swiss burgher-right, it is an American also, because born in America. * * * It is doubtful whether, even if the residence of the mother could be discovered, the American courts would recognize such a decree as valid against an American citizen. It is therefore evident that by taking from the complainant the child, Constance Madeleine, and taking it to America, he (the complainant) might in one way or another suffer irreparable damage.
The court, instead of finding in the American citizenship of the child a ground for returning her to the jurisdiction of the United States, from which she had been unlawfully taken, makes it rather a ground for retaining her in Switzerland, where she had been unlawfully brought.
The abduction of the child by Mr. His was a criminal offense against the peace and law of the State of New York.
Section 211 of the penal code of that State provides that: A person who willfully * * * leads, takes, entices away, or detains a child under the age of 12 years with intent to keep or conceal it from its parent, guardian, or other person having the lawful care or control thereof * * * is guilty of kidnaping and is punishable by imprisonment for not more than fifteen years.
The child, even by the judgment of the Swiss courts, was lawfully in the possession of its mother, and it was unlawfully and criminally taken therefrom by the father. Mr. His's act was not only a criminal violation of the laws of this country, but it was equally in contempt of the author. ity and order of the courts of his own country.
In January, 1797, the Spanish minister complained to this Government that the territorial rights of Spain in Florida bad been violated by certain persons residing in the United States. The matter was referred to the Attorney-General, who, on the 26th of that month, advised the Secretary of State:
It is an offense against the laws of nations for any persons, whether citizens or foreigners, in habiting within the limits of the United States, to go into the territory of Spain with intent to recover their property by their own strength or in any other manner than its laws authorize and permit. (1 A. G., 68.)
And again, in a case in 1822 where a slave concealed himself in an American vessel lying at Ste. Croix, and was brought to New York, the Danish minister having demanded his restoration, the AttorneyGeneral, Mr. Wirt, September 27, 1822, advised that he wasof the opinion that it is due to the sovereignty of Denmark and to our own character as a nation to restore this slave to the condition from which he has been taken by a ship carrying our flag and belonging to our citizens, and that the policy of our own laws conspires to enforce the performance of this duty (1 A. G., 566.)
· It is common practice between nations where a fugitive from justice has sought asylum in another country and has been kidnaped, whether by officers or private individuals, or has been procured in some other irregular way, and carried back to the country from which he fled, to return such a fugitive on the request of the Government whose sovereignty has been violated. If the worst criminal had fled from Switzerland to this country and had been taken out of our jurisdiction and back to Switzerland in the manner in which this child has been taken, this Government can not doubt that the Swiss Government would, upon request, promptly return such a person to our jurisdiction. No more is asked for this innocent child.
You will present this matter to the Swiss Government in the foregoing sense; and you are instructed to request the return of the child to the jurisdiction of the United States.
Without a previous request, however, and in advance of such considerations as the Swiss Government might care to present, I did not feel warranted in instructing you to make any demand, as your dispatch suggests. I therefore cabled you February 27 as follows: “ May formally present case Constance His, urging intervention of Executive, but make no demand. Instructions by mail” — which I now confirm. I am, etc.,
JAMES G. BLAINE.
Mr. Washburn to Mr. Blaine.
LEGATION OF THE UNITED STATES,
Berne, May 10, 1892. (Received May 23.) SIR: I have the honor to submit the reply of the Federal Council to the request of the United States for the surrender to its jurisdiction of Constance Madeleine His, under circumstances fully set forth in your dispatches on the subject.
It seems becoming in me to offer no suggestion at the present time upon the subject, but to await the further instructions of the Department. I am, etc.,
JOHN D. WASHBURN.
(Inclosure in No. 134.-Translation.]
Federal Council to Mr. Washburn.
BERNE, May 6, 1892. MR. MINISTER: In reply to the notes of your excellency of March 14, April 5 and 19 last, touching the His-Turner case, we have the honor to inform you, by direction of the Federal Council, that it can not under the existing circumstances take the steps which you have requested in behalf of your Government.
The case received, on the part of the proper Federal department, an exhaustive examination, and the considerations which preclude the Federal Council from carrying out your excellency's request are as follows:
Under the laws of Switzerland and according to the principles of law applying to the matter in Switzerland, the act of Mr. His can not be looked upon as an offense. In his capacity as father of the child in question, Mr. His enjoys imprescriptible rights over her, as well as
over the mother of the same; the education of the child only was, in consequence of an agreement entered into by the parties and in execution of a judicial decree, intrusted to the mother, the charge of a pecuniary education being placed on the father. This very fact reserved for him the right of seeing to it that the child receive the attention necessary for her physical and intellectual development.
By taking the child away with him he has merely broken the agreement entered into by his wife and himself with the sanction of the courts. It is on that ground only that the injured party might eventually bring suit against him before the competent court. This is what has taken place, the parties having placed the case before the tribunal of the Zofingen district. The decision is thus vested in the judiciary and the Federal Council in its executive capacity is not compešent to intervene in the suit.
Moreover, it is worthy of notice that the decree of divorce granted by the court of the Zofingen district of the 22d of January, 1890, does not stand in force at this day, but, instead, the decision arrived at by the same court on December 9, 1891, that is to say; long before the intervention of the U. S. Government. That decision, confirmed by the court of appeals of the canton of Aargau on January 15, 1892, declares that the child is to remain in Morgenthal until final judgment passed by the courts upon the petition of Mr. His praying for a partial modification of the above-mentioned decree of divorce. In regard to the competency of the court as to making a decision of that kind, it can not be disputed, for any court may, in the presence of new circumstances, reconsider a preceding decision, either to modify or confirm the same.
The provisional step taken by the court also makes it unnecessary for the Federal authority to interfere with a view to obtaining that the child remain in her present residence; the authorities of the canton are already charged with that duty.
Without in the least approving Mr. His's proceedings, we confine ourselves to stating that the act for which complaint is made against him is a “consummated" fact, on which the courts have been called upon to pass. Under those circumstances any intervention on the part of the executive authorities is precluded.
Finally, the courts will have to determine the right of 6 personality" on behalf of the child, who can not be considered as a “thing” and shipped like merchandise from one country to another. Accept, etc.
Mr. Foster to Mr. Washburn.
DEPARTMENT OF STATE,
Washington, July 27, 1892. SIR: Your dispatch, No. 134, of May 10, is received, in which you transmit the reply of the Federal Council to the request of this Gov. ernment for the surrender to its jurisdiction of the child Constance Madeleine His, a native-born American citizen, who was abducted from New York and taken to Switzerland under circumstances fully set forth in Mr. Blaine's instruction, No. 102, of March 1 last.
I regret that the Swiss Government does not regard those circumstances such as to require the child's return to the United States. Its