position seems to be that however wrongfully the child was taken from this country and brought into Switzerland, since she is now there and the subject of proceedings pending in its courts, the executive authority will not interfere, but the custody of the child must abide their result. None of the proceedings referred to were begun until after the wrongful abduction of the child, which it is clearly their sole purpose to sustain. The position taken by the Federal Council permits Mr. His, in contravention of a fundamental principle of equity, to take advantage of his own wrong. Generally, too, it would permit any person to enter the territory of a friendly government and abduct or kidnap its citizens and carry them into its own country, where they must abide the result of whatever proceedings may be instituted against them or with respect to them. Since this case was officially presented by you to the Swiss Government, March 14 last, the Government of Great Britain has voluntarily agreed to return a youth of 15 years of age, who had been taken from the State of New York without process of law, to the place whence he was abducted. In that case the boy was a citizen of Canada and having committed an offense there had fled to the United States. Whether he was kidnaped or enticed across the boundary is not fully clear, but after he was taken to Canada he was tried, convicted, and sentenced to a reformatory. If the position of the Federal Council is correct, it is an unfortunate distinction which, in deference to the sovereignty of a friendly Government, compels the return of an alien culprit, but will not secure the return of this innocent child. This Government agrees with the Federal Council that Constance Madeleine His "can not be considered as a thing and shipped like mer. chandise from one country to another," but it finds in that fact a further reason why she should be returned to the place whence she was taken. If Mr. His had simply carried away some article of property, there might be more force in the observation that it must be recovered through the courts. I can not but hope that the Federal Council, upon further consideration, will regard the application of this Government for the return of the child more favorably. I am, etc., JOHN W. FOSTER. No. 2.] Mr. Foster to Mr. Cheney. DEPARTMENT OF STATE, SIR: By the Department's instruction No. 102, of March 1 last, Mr. Washburn was directed to present to the Swiss Government the case of Constance Madeleine His, a young child abducted from the State of New York, and to request her return to the jurisdiction of the United States. Mr. Washburn, in his dispatch No. 134, of May 10, transmitted the answer of the Federal Council to this request, in which the position was taken that the case was pending in the Swiss courts and that the Executive authority could not intervene. July 27 Mr. Washburn was instructed to reply thereto, but it is not known here that any further official communication with regard to the matter has been received from the Swiss Government. It is desired that officially or unofficially, as you may judge most prudent, you will continue Mr. Washburn's efforts and do whatever you properly can in the line of the Department's previous instructions to secure the return of the child to this country whence she was unlawfully taken. Whether any further official communication to the Federal Council would be helpful in the sense of those instructions I leave to your discretion. It has been suggested at this Department by counsel in behalf of Mr. His that in taking the child he committed no crime. The Department, however, has official information that an indictment therefor has been found in New York against Mr. His upon the charge of kidnaping. The existence of such an indictment is ordinarily required to be kept secret until the accused can be arrested, but the foregoing information has been given to the Department, for its own use only, in connection with its intervention with the Swiss Government for the return of the child. It would be better that the information should not be used unless necessary. You are authorized, however, to make use of it, if in your judgment it becomes important to do so, in support of the request which this Government has made. It is understood that Mr. Catlin, consul of the United States at Zurich, or Mrs. His's resident attorney, Dr. Emil Frey, of Brugg, may be able to give you information regarding the present status of the legal proceedings, should you require it. You will keep the Department informed of your action in the premises. I am, etc., JOHN W. FOSTER. No. 5.] Mr. Cheney to Mr. Foster. LEGATION OF THE UNITED STATES, Berne, January 31, 1893. (Received February 14.) SIR: I find at this legation the inclosed communication from the federal department of foreign affairs, in reply to Mr. Washburn's letter of August 10. I respectfully forward the copy of same and await instructions. I am, etc., [Inclosure in No. 5.-Translation.] PERSON C. CHENEY. Mr. Droz to Mr. Washburn. FEDERAL DEPARTMENT OF FOREIGN AFFAIRS, POLITICAL DIVISION, NO. 3433, Mr. MINISTER: We have not failed to attentively examine, concurrently with the federal department of justice and police, your recent note of August 10 last, relative to the His-Turner case in order to see whether there was ground for the Federal Council to review its decision of May 3, 1892, of which we had the honor to advise you on the 7th of the same month. To this end we first informed ourselves as to the present status of the question. Here is the information we have obtained: On April 22, 1892, after the settlement of the various incidental questions relative to the measures of conservation, the preliminary hearing took place before the district court of Zofingen of the case of Albert His, manufacturer at Murgenthal, against Mrs. Carrie His, to modify the decree of divorce allowed January 22, 1890. Counsel for Mrs. His set up an exception to the jurisdiction of the court, but this exception was overruled. Mrs. His appealed to the supreme court of the canton of Aargau, but the decision of the court of the first instance having been affirmed by it, she had recourse to the federal court, which has not yet rendered its decision. The case being, therefore, more than ever a subject for the competent courts, and no new argument whatever having been adduced in your note of August 10, it is, more than ever before, impossible for the Federal Council to intervene in the course of the case. It must, therefore, abide by its decision of May 3, 1892, for reasons which we have had the honor to lay before your excellency in our note of the 7th of the same month. Regretting not to be able to take such action as requested by your Government, we offer you, Mr. Minister, the new assurance of our high consideration. DROZ. No. 7.] Mr. Cheney to the Secretary of State. LEGATION OF THE UNITED STATES, Berne, January 31, 1893. (Received February 14.) SIR: I have the honor to say that I am in receipt of your instructions under date of January 13 pertaining to the case of Constance Madeleine His. I respectfully refer you to my No. 5 as explaining the situation at the present time. At the present writing I desire to avail myself of the discretion granted me, so that I may be able to give you full information. The case seems to be yet before the federal tribunal. PERSON C. CHENEY. No. 6.] Mr. Wharton to Mr. Cheney. DEPARTMENT OF STATE, Washington, February 17, 1893. SIR: I have to acknowledge the receipt of your Nos. 5 and 7 of January 30 and 31, 1893, and to express the Department's regret that the federal department of foreign affairs of Switzerland continues to maintain what I can not but regard as an untenable position in the case of Constance Madeleine His. The argument appears to be that, as the case is before the competent tribunals, the executive can not intervene. But the Swiss courts can not be considered to be competent. Carrie Turner His, the mother of the child, has not appeared before them either as plaintiff or defendent in regard to the subject-matter of the litigation. She has taken no steps beyond that of denying their competence. Maintaining, as the Swiss courts have hitherto, the custody of the child with the father, they allow him to take advantage of a crime for which he has been indicted in New York. This is in direct violation of the fundamental principle of all systems of jurispru dence, that no one shall profit by his own wrong, and is as contrary to ethics as to justice. The judgment decreeing a divorce in favor of Carrie Turner His and awarding her the custody of the child was not the judgment of an American court, to which the Swiss Government might take exception on the ground of the nationality of the parties according to the Swiss law, their personal status, domicile, etc., but was the judgment of a Swiss court, the competency of which the Swiss Government can not impugn. In flagrant contempt of this judgment, Mr. His abducted the child from the custody of its mother, committing thereby a crime and violating the judgment of the tribunal of his own country. He is now, therefore, under indictment for a crime in New York, and in obvious contempt before the Swiss tribunals; yet, nevertheless, the Swiss Government has declined to intervene and Mr. His is protected from and profits by a felony committed in the State of New York and in contempt of court, and in violation of the judgment of the tribunals of his own country. You are instructed to present this matter to the Swiss Government, emphasizing its salient features, and to express the surprise and regret experienced by this Department that it should not have apprehended the circumstances environing the case. Upon more careful consideration, I do not doubt that its sense of justice alone would lead it to comply with the request of the United States Government, a request founded as well in equity as in law. I am, etc., WILLIAM F. WHARTON, Acting Secretary. Mr. Cheney to Mr. Gresham. No. 12.] LEGATION OF THE UNITED STATES, Berne, March 18, 1893. (Received April 3.) SIR: In accordance with previous instructions, I have given careful attention to the pending case between the United States Government and Switzerland regarding Constance Madeleine His, and have, under this date, addressed the following communication to the federal department of foreign affairs. I may say in addition that, unofficially, I learn that the case is referred back to the district court for a further preliminary hearing. The answer to my communication will doubtless disclose the present status of the case, which will be promptly submitted when received. Your obedient servant, [Inclosure in No. 12.] PERSON C. CHENEY. Mr. Cheney to Mr. Lachenal. LEGATION OF THE UNITED STATES, Berne, March 18, 1893. SIR: Your communication of September 12, 1892, the same being in reply to Mr. Washburn's letter of August 10, touching the pending case of Constance Madeleine His, through some inadvertence incidental to the absence of Mr. Washburn, remained in the office of this legation until my arrival here, the latter part of January. I regret this cir cumstance, for it left the Department of State in Washington wholly uninformed of your early reply, which they were awaiting with anxiety. After being duly qualified to act officially for the United States Government, and in obedience to a letter of instructions pertaining thereto I advised the Department by cablegram that answer was made September 12 and the same was then in transit. Its receipt was acknowledged by due course of mail, accompanied with further instructions and a review of the case as understood by the United States, and which in substance I must respectfully place before you. (1) The Department regrets that the federal department of foreign affairs of Switzerland continues to maintain a position which to the Secretary of State seems untenable. As the case is presented with great force and clearness, I make the following quotation: The argument appears to be that, as the case is before the competent tribunal, the Executive can not intervene, but that the Swiss courts can not be considered competent. Carrie Turner His, the mother of the child, has not appeared before them either as plaintiff or defendant in regard to the subject-matter of litigation. She has taken no steps beyond that of denying their competence. Maintaining, as the Swiss courts have hitherto, the custody of the child with the father, they allow him to take advantage of a crime for which he has been indicted in New York. This is in direct violation of the fundamental principle of all systems of jurisprudence, that no one shall profit by his own wrong, and is as contrary to ethics as to justice. The judgments decreeing a divorce in favor of Carrie Turner His and awarding her the custody of the child was not the judgment of an American court-to which the Swiss Government might take exception, on the ground of the nationality of the parties, according to the Swiss law, their personal status, domicile, etc.-but was the judgment of a Swiss court, the competency of which the Swiss Government can not impugn. In flagrant contempt of this judgment Mr. His abducted the child from the custody of its mother, committing thereby a crime and violating the judgment of the tribunal of his own country. He is now, therefore, under indictment for a crime in New York and in obvious contempt before the Swiss tribunals; yet nevertheless the Swiss Government has declined to intervene, and Mr. His is protected from and profits by a felony committed in the State of New York and in contempt of court and in violation of the judgment of the tribunals of his own country. The Department further expresses its surprise and regrets that the department of foreign affairs of Switzerland should not have apprehended the circumstances environing the case, and doubts not, upon a more careful consideration, that its sense of justice alone would lead it to comply with the request of the United States Government, a request founded as well in equity as in law. In the event of any change in the status of the case since your favor of September 12, 1892, I beg to ask that I may be early advised, thus enabling me to report the same to the Department of State in Washington. I have, etc., PERSON C. CHENEY. Mr. Cheney to Mr. Gresham. No. 27.] LEGATION OF THE UNITED STATES, Berne, May 23, 1893. (Received June 3.) SIR: I have the honor to inclose herewith the reply of the chief of the department of foreign affairs in reply to my communication of March 18, the same being in substance the language of the then Acting Secretary, Mr. Wharton, in his letter of instructions to this legation under date of February 17. I am, etc., PERSON C. CHENEY. |