No. 440.
Mr. Rublee to Mr. Fish.

No. 124.]

Sir: I have the honor to transmit herewith a translation of the material part of an article on the Mermillod affair, which appeared in the Bund of this city on the 18th instant. The Bund is regarded as the semi-official organ of the government, and in defending the expulsion of M. Mermillod, and explaining the motives upon which that measure was based, it doubtless utters the views of the Federal Council. As such a semi-official exposition you may find its article of some interest.

I have, &c.,

[Page 1082]

The expulsion of Mermillod.

[From the Bund, February 18.]

* * * * The action of the Federal Council in expelling Mermillod has occasioned surprise in some quarters, and persons are not wanting who, regarding it as the banishment of a Swiss citizen, hold that an unconstitutional punishment has been inflicted. This view is, in several respects, incorrect. The expulsion of Mermillod is not a punishment; it is rather a political measure of prevention, adopted to avoid the de facto establishment within the territory of the confederation of a foreign authority unrecognized by the government of the country. The measure was not directed against Mermillod as a Genyese or Swiss citizen, but against the plenipotentiary and representative of the Holy See, in so far as he would establish in the canton of Geneva, by evading the proper state authorities, the authority of the Roman curia. The decree of expulsion has no punitory effect upon the person of Mermillod. From the moment that he renounces his pretensions, founded upon the papal brief of the 16th of January, issued in violation of the rights of the authorities of the country, he is at perfect liberty to return to Geneva. But the honor and dignity of the state require that the Federal Council should insist upon such a renunciation. If Mermillod cannot consent to this recognition of the authority of the government of the country over its own territory, he cannot complain if he is prevented from offering it further defiance within its own sovereign domain. Looked at and judged from this point of view, no unprejudiced mind can avoid the conclusion that the Federal Council is fully justified in the action it has taken, and that the so-called martyrdom of Mermillod is of a very cheap quality.

It is an error, also, to allege that the expulsion of a Swiss citizen is in no case constitutional. There is nothing in the constitution to warrant such an opinion. Indeed the constitution, in the interests of public order and religious peace, prohibits the order of Jesuits and all affiliated societies within the limits of the confederation, making no distinction between Swiss citizens and foreigners. The Swiss citizen who is a Jesuit is forbidden to sojourn in Switzerland. The analogy between this constitutional provision and the measure of the Federal Council expelling Mermillod is sufficiently apparent. There can be, then, no question as to the constitutionality of the action of the Federal Council. It is not the Swiss citizen Mermillod who is banished; he can return to his native country whenever he will promise to respect the laws of the land and abstain from representing a foreign power in our country. It does not well become a Swiss citizen who, against the laws of the republic, places himself in relations with a foreign authority, to parade his Swiss citizenship, for he is practically a foreigner. The quality of a Swiss citizen is not designed to serve as a hypocritical shield, from behind which to bid defiance to the sovereignty and laws of the country.

There are others who assert that Mermillod should have had a trial before a court of justice; that an expulsion by an administrative order, without a judicial sentence, is unwarrantable. Such persons overlook the fact that in the Mermillod affair it is not a question of individual offense, of a violation of the penal code, but rather of a collision between two public powers, (öffentliche Gerwalten,) upon one and the same state jurisdiction, making it necessary for the state, from motives of self-preservation, to set aside the conflicting power of the Church. Mermillod is not, personally, a criminal; he has not committed any offense which subjects him to prosecution before the court for violating the provisions of the penal code; but his longer continuance in the canton of Geneva as apostolic vicar, after the papal brief of January 16 has been pronounced null and void by the government, is inconsistent with the dignity of the Swiss state. The whole controversy rests upon diplomatic and political grounds, and, in this domain, the state cannot recognize the authority of the courts as superior to its own. The Federal Council, therefore, cannot submit to the decision of any court whatever the question whether, upon the territory of the confederation or in the representation of Switzerland abroad, its own authority shall or shall not have the preference to that of a spiritual dignitary, commissioned by the Pope and unaccepted by the federal government.

* * * * * * *

The Federal Council has, moreover, directed the expulsion of Mermillod with the full consciousness of its responsibility to the Federal Assembly, and will be fully able to justify the proceeding before the confederate councils.