Mr. Blaine to Mr. Washburn.
Department of State , 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,2 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 until 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 [Page 647] 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 consideration 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 authority 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 had 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, inhabiting 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 Attorney-General, Mr. Wirt, September 27, 1822, advised that he was—
of 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. Gr., 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.,