lant must state precisely the points which he wishes to make against the judgment of the lower court. The declaration of appeal does not come up to this requirement, no positive demand being made and considered in a formal point of view. According to the Aargau regulations we might decline to enter upon the consideration of the appeal. (2) But the objection against the judgment of the lower court may also be interpreted in such a way that the plea of noncompetency of the court be considered as legal and the defendant be liberated from entering upon plaintiff's request for a modification of the decree of the 22d of January, 1890. From the point of view this plea is but a repetition of the demand made before the district court of Zofingen on the 20th of April, which was rejected by both the lower and the higher courts. He must therefore refer to the judgments of the district court of Zofingen of April 20 and of the high court of June 29, 1892. In the latter particularly it has been clearly proved that the district court of Zofingen is fully competent to decide on the petition for revision of the judgment of January 22, 1890, in regard to the adjudication of the child to the mother, wherein the mother was intrusted with the education of the child. And it is sufficient to mention here that the federal tribunal holds the same opinion, viz, that the same judge who had pronounced on the divorce itself shall also decide as to the consequences thereof, and accordingly as to the education of the children, and this in accordance with the law of the canton, to the jurisdiction of which the husband is subject. (Decisions of the Federal Tribunals, XVIII, p. 67, etc., article 49 of the Law of Civil Marriage.) In case of a change in the situation the Argovian judge has at all times decided, under sections 149 and 151 of the common civil law, his competence to reconsider the dispositions of the divorce sentence as regards the children, and to alter such dispositions where the interest of the children made it necessary. The federal tribunal also does not consider such dispositions as irrevocable, but vindicates to the court of wards the right to modify them. (Decisions of the Federal Tribunal, XIV, p. 34, etc.) The objection pleaded in this new issue as to the noncompetency of the Argovian and federal judges is thus also in this form wholly unfounded. (3) Although, according to the foregoing statement, the defendant ought to have answered the petition of plaintiff of October, 1891, she did not do so. Neither did she appear before the court upon the summons issued to her for the 3d of August, and was consequently fined, with costs, and again summoned for the 17th of August, under special reference to section 101, lemma 2, of the C. P. L., that in case of nonappearance after the second summons the opponent should be granted his petition. Having again failed to appear, she can not now complain of the threatened forfeiture having been pronounced and the plaintiff's petition granted, the less so as the actual facts stated in the records have to be accepted as true by the judge, and as these statements justify fully the modifications introduced into the decree of January 22, 1890. We therefore confirm the judgment of the lower court, and decide that the defendant's appeal opposed to the judgment is dismissed, and that she be held to pay to the plaintiff 45.05 francs for costs of the second instance. No. 70.] Mr. Gresham to Mr. Broadhead. DEPARTMENT OF STATE, SIR: I have to acknowledge your No. 40, of May 19th last, inclosing a copy of Mr. Lachenal's note to you, of the 9th of the same month. and copies of certain proceedings, in the Swiss courts relating to the child Constance Madeleine His. Mr. Lachenal's note was a reply to your note to him of October 23, 1893, in which the distinction between the civil and the political rights involved in this case were clearly pointed out. As you at that time observed: It appears that proceedings have been had before the judicial tribunals of the Swiss Confederation in regard to the right to the custody of the child Constance Madeleine, but these proceedings related purely to the question as to whether the father or the mother had the right to such custody, and involved only the civil rights of individuals under the laws of the Swiss Confederation, or of the canton in which the questions were first brought before a judicial tribunal, and can in no way affect the political questions which arise in this case under the law of nations. Mr. Lachenal, in his note of May 9, ignores the distinction thus pointed out by you, still insisting that the questions involved are of private right only. The child's father, he says, in abducting her from this country, simply exercised, in conformity with judicial and legal principles in force in Switzerland, his paternal right, of which he had never been deprived; and the mother, having been a party to the proceedings in the Swiss courts which resulted in giving the custody of the child to the father, is precluded from making further claim to it. Referring to the fact that the mother's appeal from the decree giving the custody of the child to the father has been rejected by the appellate court, Mr. Lachenal remarks that Under these circumstances the Federal Council must express the opinion that this matter has received its regular solution. It regrets to say that it is impossible for it to enter further into the question of claims which may again be presented to it on this subject, and is pleased to hope that the Government of the Union will concur in this view. As regards the right of the mother to the custody of the child, this Government does not dissent from that view. She seems to be precluded by the action of the courts from making any further claim based on her own private rights. But this Government emphatically dissents from the Swiss view as regards the political and international questions involved. Those questions, upon the answer to which depends the more immediate question whether this Government or that is entitled to the possession and custody of the child, have not been and can not be decided by the Swiss courts with the effect of binding the United States. This Government claims the child on the ground that she, a nativeborn American citizen, residing within the territory of the United States, and subject to its exclusive jurisdiction and entitled to its protection, was surreptitiously abducted and taken to Switzerland, in utter disregard of our sovereignty. Even had the child not been a citizen of the United States, the means by which the father obtained custody amount to the crime of abduction, and it is therefore significant and remarkable that in Mr. Lachenal's last note on the subject it is said that, "In the light of the judicial and legal principles in force in Switzerland, it is impossible to deny that the acts with which Mr. His is reproached were taken in the exercise of the paternal power of which he has never been declared deprived." This language seems to imply that, in the opinion of the Swiss Government, in abducting the child from the United States the father simply exercised his paternal right, and that this Government can not complain of his act. Does that Government take the position that one of its subjects may enter the territory of the United States in defiance of their sovereignty and authority, and by stealth or force take from their jurisdiction a citizen or even an alien having a lawful domicile here? If it does, this Government must emphatically record its dissent from a proposition so subversive of the fundamental principles of sovereignty. The case can not be permitted to remain as it now stands; it might in the future be cited as a precedent against this Government, and therefore you will again bring the matter to the attention of the Swiss Government and demand such action on its part as will comport with the dignity and sovereignty of the United States. I am, etc., W. Q. GRESHAM. PROTECTION TO SWISS CITIZENS BY UNITED STATES REPRESENTATIVES IN FOREIGN COUNTRIES. Mr. Claparède to Mr. Gresham. LEGATION OF SWITZERLAND, Washington, January 11, 1894. (Received January 13.) Mr. SECRETARY OF STATE: By a note dated January 28, 1893, your honorable predecessor, in reply to a request for intervention which I had had the honor to address to him on the occasion of the murder of a Swiss citizen named Lecoultre, at Poassa, in the province of Bahia, Brazil, was pleased to inform me that he had instructed the United States minister at Rio to communicate with the consul-general of Switzerland in that city, and to lend him his good offices in the matter as far as might be possible without prejudice to the action of the minister of France, who already had charge of the case, and without arousing his susceptibilities. In expressing to you, Mr. Secretary of State, the sincere gratitude of my Government for the kindness with which the Department of State was pleased, at that time, to comply with the aforesaid request, I have the honor to inform your excellency that various circumstances have hitherto prevented us from availing ourselves of the aid of the United States representative in Brazil, but I have received orders to have recourse to your kindness in behalf of a person who represents the heirs of the said Lecoultre. These heirs are having the farm worked which belonged to Lecoultre. This farm is situated at Cannavieras, in the province of Bahia, and is worked by a Swiss citizen named Jean Etter, whose life and property, owing to the disturbed state of that Republic, are in constant danger. The property adjoins a farm which formerly belonged to a Frenchman named Blanchet, but which has just been sold to a Mr. Rosse, an engineer, who is a citizen of the United States, and who, as such, enjoys the protection of your Government. The owners of the farm which formerly belonged to Mr. Lecoultre desire to have it, and likewise the person of Mr. Etter, placed under the protection of the United States of America. As Switzerland has no diplomatic representative in Brazil, and as the Swiss Federal Government thinks that the person of Mr. Etter, in view of the present situation of the Republic of Brazil, is in a very precarious condition, I have the honor, Mr. Secretary of State, in pur suance of the instructions of my Government, to request that the United States legation, under whose protection Mr. Etter's neighbor is, may be instructed by you to take also Mr. Etter under its protection, together with the property of which he has charge. Renewing the assurance of my Government's gratitude for the assistance and protection which the United States Government, on varions occasions, has been pleased to afford to Swiss citizens in localities where Switzerland has no diplomatic representative, I gladly avail, etc., ALFRED DE CLAPARÈDE. Mr. Uhl to Mr. Claparède. DEPARTMENT OF STATE, SIR: I have the honor to acknowledge the receipt of your note of the 11th ultimo, asking the protection of the United States minister to Brazil for the estate of the deceased Swiss citizen Lecoultre, and for the person of its manager, Jean Etter, also a Swiss citizen. Under the conditions described by you, the estate belonging to a Swiss citizen, and the resident manager, Jean Etter, being also a Swiss, I will have pleasure in instructing Mr. Thompson, the United States minister at Rio de Janeiro, to use his good offices within proper limits for their friendly protection in case of need, in view of the absence of a diplomatic representative of Switzerland in Brazil, and with the consent of the Brazilian Government. Accept, etc., EDWIN F. UHL, Acting Secretary. Mr. Gresham to Mr. Tavel. DEPARTMENT OF STATE, SIR: Referring to the note of January 11 last from your legation, I have the honor to apprise you of the receipt of a dispatch from the United States minister at Petropolis, numbered 298, of the 1st ultimo, written in reply to the Department's instruction to use his good offices for the protection of the Lecoultre estate. Mr. Thompson states that while the Swiss Government has no diplo matic representative in Brazil, Mr. Rafford, the Swiss consul-general, has always been recognized in questions of interest to that country, not excepting the Lecoultre case. For this reason, and also because the French minister has used his good offices in the same case, Mr. Thompson decided to await further instructions from the Department. As it thus appears that the official intervention of the Swiss consulgeneral will be admitted by the Brazilian Government in behalf of Swiss citizens in Brazil in default of a regularly accredited diplomatic agent, and as Mr. Rafford's attention has been already given to the matter of the Lecoultre estate, it is not thought needful to give Mr. Thompson specific instructions in that regard or general authority in respect to the informal protection of Switzers. Accept, etc., Mr. Tavel to Mr. Gresham. Mr. SECRETARY OF STATE: W. Q. GRESHAM. LEGATION OF SWITZERLAND, Washington, D. C., November 5, 1894. The situation of foreigners residing in China having, in connection with the war between China and Japan, given rise to serious apprehensions, the Swiss Federal Council has taken into consideration the ques tion of securing protection for Swiss citizens in the far East. It has, therefore, decided to request all the powers that have adhered to the propositions of Great Britain for the joint protection of Europeans and Americans, namely, Germany, France, Russia, and the United States, that they will protect the Swiss citizens residing in China. I have the honor to inform you that I am directed by my Government to lay before your excellency the request that the Government of the United States kindly agree to extend its protection to Swiss citizens in China so long as the concerted action of the powers will obtain. The Swiss Federal Council has addressed an identic request to the abovenamed powers. Hoping that your excellency will kindly, on this other occasion, grant the Swiss citizens the assistance and protection which they have so often received of the Government of the United States, I seize, etc., CHARLES C. TAVEL. Mr. Uhl to Mr. Tavel. DEPARTMENT OF STATE, SIR: I have the honor to acknowledge the receipt of your note of the 5th instant, wherein you make known to this Department the request of your Government that that of the United States will agree to extend its protection to Swiss citizens in China. The diplomatic and consular officers of the United States were instructed on the 16th of June, 1877, to use their good offices in behalf of Swiss citizens sojourning in their vicinity in the absence of diplomatic and consular representatives of the Confederation. A copy of these instructions was communicated by Mr. Fish, our then minister at Berne, on August 7, 1877, to the President of the Swiss Confederation. As far as this Government is concerned these instructions have never been revoked, and our diplomatic and consular officers are still ready to discharge the duties which they involve. As to the protection from violence of Swiss citizens now sojourning at treaty ports in China, the ships of war of the United States will, whenever necessity arises, grant them the same protection as they would to any other citizens or subjects of a neutral foreign power residing in the same port. Accept, etc., EDWIN F. UHL, |