Mr. Broadhead to Mr. Gresham.
Legation of the United States, August 16, 1893. (Received August 26.)
Sir: In dispatch No. 3 of the date of June 9, 1893, from the Department of State, which reached me a few days after I assumed the duties of this legation, I was instructed to investigate and make a succinct report upon all the judicial proceedings in Switzerland affecting the custody and status of the child Constance Madeleine His, whose abduction from her mother in the United States and detention by her father in Switzerland have been the subject of diplomatic negotiations between the two countries, and including the decree in the divorce suit awarding the custody of the child to the mother. I was further informed that the Department would be glad to have any suggestion which, after acquiring a complete knowledge of the case “as it is there regarded, as well as from our standpoint,” I might think proper to make in respect to the further diplomatic” action to be taken. I have the honor, therefore, to report that I took the earliest opportunity which the press of other matters requiring immediate attention would permit to examine the voluminous records and correspondence relating to the subject.
I find the facts to be as follows:
On the 28th of October, 1883, Albert His, a citizen of Switzerland, but then residing in New York, was married to Carrie A. Turner, a native of the United States and then residing also in New York; they lived together as man and wife in the city of New York until the autumn of the year 1887. Of this marriage there was born, on the 27th of July, 1887, the child, Constance Madeleine His. In the spring of 1887 Albert His went to Switzerland for the purpose of establishing himself in business there with the consent of his wife, as he alleges; while there he made arrangements to establish himself in business with the firm of Otto Schatzmann & Co., in Murgenthal; he then returned to New York; his wife at first consented to return with him to Switzerland, but afterwards refused; he remained in New York until the autumn of 1887, when, as above stated, lie returned to Switzerland, his wife refusing to go with him. In September, 1889, Albert His brought suit for divorce from his wife on the ground of malicious desertion, and thereafter, in the fall of that year, Mrs. His, the wife, was served with process in the divorce suit in the city of New York; she went immediately to Switzerland and intervened in the divorce proceedings, and demanded on her part a judicial determination of the marriage on account of unconquerable repugnance of the parties to each other.
Thereupon, and before any action was taken by the court toward a trial of the case, the parties agreed upon the terms of a divorce and presented to the district court of Zofingen in common the terms of a decree, as follows:
- (1)
- That the court would declare as dissolved the marriage of Albert His, of Basle, residing in Murgenthal, and Carrie A. His, born Turner, of New York.
- (2)
- That the child, Constance Madeleine His, born of the marriage, should be given to the mother, to be brought up and educated, with the understanding always that the father should at all times have the right to visit the child, and that in case the mother should die before the father and before the child had attained its majority, the right and duty to care for and educate the child should belong to the father.
The parties arranged their financial affairs in regard to the maintenance of the child by an outside contract, the purport of which does [Page 657] not appear in the proceedings of the court, by which Albert His was to pay the wife a certain amount per annum. The decree of the court was rendered January 22, 1890, and a copy of the same is herewith inclosed.
In the spring of the year 1891 Albert His returned to New York and on the 5th of May, 1891, he abducted the child and returned with her to Switzerland, for which act he was afterwards indicted in New York for the abduction of the child.
Mrs. His employed counsel in America and also in Switzerland to take such steps as might be necessary to recover the child, Constance Madeleine, and bring her back to New York, and on the 30th of November she appeared by her counsel before the sheriff of Zofingen and asked for an execution of the decree of divorce against Albert His, and for the surrender of the child, Constance Madeleine, to her attorney and representative, who held a power of attorney from her; the petition was granted and execution issued, and she on the same day, to wit, November 30, 1891, by her counsel, presented a petition to the president of the court at Zofingen, asking for an order on Albert His to keep the child in his family, and to restrain him from removing her from the canton of Aargau until the child is given back again to her mother, or until it should be otherwise decided by a competent court, she averring in her petition that the execution had been suspended, pending a negotiation between the parties. The restraining order was made by the court.
On December 1, 1891, Albert His presented a petition to the same court, in which he averred that he had instituted legal proceedings before the district court of Zofingen to amend the decree of divorce in the sense of leaving to the father’s care the child, Constance Madeleine, and that the sheriff had undertaken to enforce the execution for the recovery of the child, and that he had resisted it, and that the opposing counsel was content not to remove the child from Murgenthal until the contest should be settled by competent authority; he nevertheless asks for an order prohibiting the opposing party from removing the child from its present place of residence, the dwelling of Mr. His, without his consent.
On December 4, 1891, Mrs. His, through her counsel, filed a reply to this petition, insisting that no valid service of the petition for revision of the decree of divorce had been served upon her—setting forth the provisions of the decree of divorce, and asking that it be carried into execution, and denying the right of the court to make such an order as that asked for by Albert His.
On the same day, December 4, 1891, Mrs. His, through her counsel, applied by petition in writing to the director of justice of the canton of Aargau, the executive department of the cantonal or state government, in which petition she sets out the provisions of the decree of divorce, her right to the custody of the child under it, the abduction of the child by Albert His from New York, the issuance of the execution, its temporary suspension by agreement between the parties, and a pledge on the part of His that he would not remove the child from Murgenthal until further notice; and averring that His now seeks in every way to hinder the execution of the decree; that he had given notice of a demand for the revision of the decree, for the purpose of amending the provision 2, which relates to the custody of the child, but averring that the decree can not be modified except by a new judicial proceeding, and she therefore asks that the course taken by the sheriff be sustained and the execution of the decree of divorce be carried out.
In answer to this petition, which, it seems, was sent to him in the form [Page 658] of a letter and was not received by him until the 19th of December, Dr. Kaeppeli, the director of justice, replied by letter of the date of December 20, 1891, directed to Emil Frey, the counsel of Mrs. His, in which he says:
(1) According to the contents of your letter, the district court of Zofingen has, as a civil tribunal, already recognized that the delivery of the His child by the father to the mother can not for the present take place. The question is therefore “pending in court.” Now, the executive official has no right to interfere with the action of a civil tribunal. He would thus render himself liable for unconstitutional procedure. Administration and justice are, as you well know, strictly divided.
When a valid judicial decree admitting execution exists, then, according to the constitution, the competent executive official is the Bezirksamt (sheriff) and the director of justice has not to decide until appeal is taken from the order of the Bezirksamt, on notice to the parties.
On the 9th of December, 1891, the petition of His for a precautionary order prohibiting the opposing party, under a pecuniary penalty, from removing directly or by a third party the child from its present place of abode, was heard before the district court of Zofingen. The court thereupon rendered a decision, by which Mrs. His was judicially forbidden to remove the child, Constance Madeleine His, directly or through a third party, from its present place of residence, the residence of Mr. His, without his consent.
A copy of this finding and decree is inclosed herewith.
So much of the decree as recites the points made by the counsel on either side is omitted.
On the 10th of December, 1891, Albert His applied to the presiding justice of the court for permission to take the child to Basle on the 22d of December to spend the Christmas with its grandparents, and thereupon permission was granted by the justice to take the child there from December 22 to January 4. Thereupon, December 21, 1891, on the application of Mr. Roberts, of Boston, Minister Washburn, through Mr. Hinnen, vice-consul at Berne, applied to the federal department of justice and police for an order forbidding the performance of the permission granted by the court to take the child to Basle. An order was thereupon made, directed to the sheriff at Zofingen, stating that the order of the court was made ex parte, that the North American Government had intervened in the affair, and instructing him to take measures to prevent for a while the performance of the order of the court, but that the permanent condition of the child could not be provided for by the department of justice without interfering with the jurisdiction of the courts.
The sheriff, by telegram, informed the regierungsrath of Aargau (the council of state) that he had informed His by telegraph to retain the child at Murgenthal, and he sent another telegram to Landammann (president of the council) of Aargau that the child, His, is still in Murgenthal, and will not depart without higher order. This dispatch was sent December 22, 1891. On the same day the department of justice and police telegraphed to the justizdirection of Aargau (cantonal direction of justice) that after hearing the opposite party in the matter of the child, Constance Madeleine His, we see no obstacle to the immediate execution of the order of the district court of Zofingen of December 16, if Prof. Andreas Hensler, in Basle, answers for it that the child will be again brought back to Murgenthal at the expiration of the time granted.
Prof. Hensler did thereupon guarantee the return of the child January 4. The state council of Aargau then dispatched to the sheriff of Zofingen that the federal police department, after hearing the opposite [Page 659] party, and upon the guaranty of Prof. Hensler, the departure to Basle can now ensue, and the court of Aargau was also informed.
The decision of the district court of Aargau of December 9, 1891, was appealed from to the superior court of the Canton of Aargau, and on the 15th of January, 1892, a lengthy opinion was rendered sustaining the judgment of the district court, and holding that affairs must remain in statu quo until the decision of the petition of Albert His, asking for an amendment of the decree in regard to the custody of the child, was determined, and that the interests of the child are paramount.
On the 17th of March, 1892, a petition for review, in the nature of an appeal, was filed in the high federal court of Lausanne by the counsel of Mrs. His, asking that the decree of the superior court of Aargau be set aside, and that the release of the child from the custody of Albert His be ordered.
On the 7th of July, 1892, the federal court delivered an opinion at length against the petition and ordered the same to be dismissed, in which opinion the decisions of cantonal courts of Aargau are approved. An appeal was taken from the order of the district court of Zofingen, allowing His to take the child to Basle, to the superior court of Aargau, and this court on January 15, 1892, revised the order and taxed the costs against Albert His.
On the 14th of January, 1892, another order was made by the district court of Zofingen by which permission was granted to His to remove the child from Murgenthal for the purpose of having an operation performed. This order was made upon the certificate of a physician that it was absolutely necessary to have the operation performed. This action was approved by the superior court of Aargau on the 6th of February, 1892. On the 20th of April, 1892, the dilatory plea of Mrs. His to the jurisdiction of the district court of Zofingen, to entertain a petition for amending the decree of divorce so far as it related to the custody of the child, came up for hearing before said court. The plea to the jurisdiction was overruled, and from the judgment of the court in overruling the plea an appeal was taken by Mrs. His to the superior court of Aargau.
I may remark here that the main ground urged in support of the plea to the jurisdiction was that the decree of divorce was final, and that the court had no right to open the decree for the purpose of amendment. She also protested that she had not been brought within the jurisdiction of the court by process which was served upon her in New York.
The superior court of Aargau sustained the judgment of the district court on the 29th of June, 1892.
From this judgment of the superior court of Aargau an appeal was taken by Mrs. His to the high federal court.
I have referred to the action of the courts in the different proceedings that were had for the purpose of enabling the Department to determine whether there has been what may be considered a denial of justice. In this connection I may mention a matter that appears of record. Mr. Emil Frey, counsel for Mrs. His, made a motion before the superior court of Aargau for the impeachment of the presiding judge of the district court of Zofingen, on account of his having made an order permitting the child to be removed in order to have an operation performed, in which motion he used very violent language toward the judge. Upon the hearing of the motion the superior court overruled it and imposed a fine upon the attorney. Much feeling was evidently manifested in these proceedings.
[Page 660]The first action taken by the Department of State on this subject was the dispatch No. 86, dated October 9, 1891, from Mr. Wharton, Acting Secretary of State, to Mr. Washburn, inclosing a letter from Mr. Roberts, attorney for Mrs. His, and introducing him as such, stating that he visits Switzerland to effect by legal means the recovery of the child Constance Madeleine His, and requesting Mr. Washburn to give him such unofficial assistance as he can in taking such legal measures as he may deem necessary in the premises. Next is dispatch No. 96, from Mr. Blaine to Mr. Washburn, of the date of January 26, 1892, inclosing letter of Mr. Warner, of December 26, 1891, and requesting Mr. Washburn to use his good offices to procure the return of the child.
Next was dispatch No. 102, dated March 1, 1892, from Mr. Blaine to Mr. Washburn, inclosing another letter from Mr. Warner, with additional facts received from Mr. Roberts, reciting a history of the case and the facts as they came from Mr. Roberts. He alludes to the baffled efforts of Mrs. His to secure the possession of the child through the medium of the Swiss courts, and stating that the obstacles interposed and the results so far afford a ground [for the charge] made in Mrs. His’s behalf of a denial of justice, but says that feature of the case it is unnecessary to consider at this time, but proceeds to criticise at length the opinion of the superior court of Aargau of January 15, 1892, and instructs Mr. Washburn to request the return of the child to the jurisdiction of the United States, but to make no demand. Mr. Washburn, upon the receipt of the dispatch of January 26, by his dispatch of February 6, 1892, No. 112, informed the Department at Washington that the matter would be submitted, saying, however, that he does not see how we can allege a denial of justice until justice has been finally denied; that the judgments already rendered are not the judgments of the court of last resort.
Upon the applications of Mr. Washburn, under the instructions of Secretary Blaine of January 26 and March 1, the federal council declined the application, mainly upon the ground that since the child was brought into Switzerland, however wrongfully, she is now there and subject to the proceedings pending in its courts in regard to the child; the executive authority will not interfere. This reply was forwarded to the Department by Mr. Washburn on the 10th of May, 1892, in his dispatch No. 134 of that date, and is doubtless on file in the Department.
July 27, 1892, Secretary Foster sends dispatch No. 128 to Mr. Washburn, referring to his dispatch No. 134 by which the Department was informed of the refusal of the federal council on May 3, 1892, to surrender the child to the jurisdiction of the United States, and instructs Mr. Washburn to make application for the further consideration of the application for the surrender of the child and expressing a hope that it may be considered more favorably. Copies of these several dispatches are in the office of the Secretary of State, and I thereupon only state briefly their contents. The Swiss federal department of foreign affairs on September 12, 1892, answered that it would maintain its previous decision of May 3, 1892. On the 13th of January, 1893, Secretary Foster sent dispatch to Mr. Cheney, my immediate predecessor, by which he instructs him, officially or unofficially, to continue Mr. Washburn’s efforts and to do whatever he properly can in the line of the Department’s previous instructions to secure the return of the child to this country and to inform the authorities in Switzerland that Mr. His has been indicted.
On February 17, 1893, a dispatch of that date was forwarded to Mr. [Page 661] Cheney by Secretary Foster (No. 6), informing him of the receipt of his dispatch, in which it was stated that the federal department of foreign affairs continues to maintain its position, affirming in their reply that it is not true that Mrs. His, the mother, has not appeared before the courts either as plaintiff or defendant, but that she was cited before the court; that the child was before the court, and that His, the father, was holding the child subject to the orders of the court. The Secretary insists in this dispatch that His is permitted to take advantage of his own wrong; that he is protected from and profits by a felony committed in violation of the judgment of the courts of his own country, and Mr. Cheney is instructed to present the matter to the Swiss Government, emphasizing its salient points, and to express the surprise and regret experienced by the Department at Washington that the Swiss Government should not have apprehended the circumstances surrounding the case, and expressing the hope that upon a more careful consideration it would comply with the request.
suggestions.
In making the foregoing statements I have confined myself strictly to the records, translations of which I have been able to procure, so far as they relate to the proceedings of the Swiss tribunals, and have omitted nothing, so far as I have been enabled to ascertain the facts, which has any material bearing upon the case; and now, in pursuance of the authority given me in your dispatch No. 3, I have the honor to submit the following suggestions relative to the case:
1. By virtue of the fourteenth amendment to our Federal Constitution, Constance Madeleine His is a citizen of the United States, because she was born in the United States and subject to the jurisdiction thereof. Albert His never having been naturalized in the United States, nor declared his intention to become a citizen of the United States, and being a native of Switzerland, his child, according to the rules of international law, was also a citizen of Switzerland. The instructions of the Department of State (No. 131) declare “that the citizenship of the father descends to the children born to him when abroad, is a generally acknowledged principle of international law.”
But the fact of citizenship does not necessarily have any bearing upon the questions involved in this case, so far as the rights of our Government are concerned.
The child was domiciled in the United States, within its territorial jurisdiction. From the fact of the independence of nations, every state possesses and exercises exclusive sovereignty and jurisdiction throughout the full extent of its territory (Wheaton, p. 161). The inhabitants of a country within its territorial jurisdiction, whether they be citizens, denizens, or domiciled aliens, are all subject to its law and entitled to its protection. (See Walker on the Science of International Law, p. 204.) This doctrine has been frequently asserted and maintained by the United States.
In the case of Martin Kosta, the Secretary of State (Mr. Marcy) says “the right to protect persons having a domicile though not native born or naturalized citizens rests on the firm foundation of justice, and the claim to be protected is earned by considerations which the protecting power is not at liberty to disregard.” The same doctrine has been held in many similar cases in the history of our diplomatic relations. The two cases cited by Secretary Blaine in his dispatch No. 102, in this case, the position taken by our Government in the case of Grogan in [Page 662] 1841, of Bratton in 1872, of Blair in 1876, were in support of the same doctrine. In the case of Bratton, who was a citizen of the United States temporarily residing in Canada, he was seized without any process and carried off to South Carolina to be tried under charges for violating the Kuklux act. The British Government claimed that this act of seizure was a violation of the territorial independence and sovereignty of Great Britain. The Federal authorities in South Carolina were directed by the Department of Justice to dismiss the proceedings against Bratton.
It would seem, therefore, that if, upon this single ground, application had been made by our Government on behalf of the child at the suggestion of some one appealing as next friend of the child, and the mother is the most natural person to act in that capacity, to the federal authorities of Switzerland, the surrender of the child could not well have been refused.
But the decree of divorce has nothing to do with this question, nor the fact that by the judgment of a Swiss court the wife was awarded the custody of the child, the demand of the mother for the custody of her child because she was entitled to it by reason of a decree in the divorce suit is one thing, the request or demand on the part of our Government for the return of the child to the jurisdiction of the United States because it had been taken from that jurisdiction by force is quite another.
By the terms of our treaty with the Swiss Confederation, as well as by the doctrines of international law between friendly nations, Mrs. His had a perfect right to appeal to the Swiss courts, or to the executive and police authorities of the canton or of the Confederation for the enforcement by execution of a decree which had already been executed, but because the courts did not decide as she and her counsel thought they ought to have decided, or because the executive departments did not act as she and her counsel thought they ought to have acted, or as this Government thought they ought to have decided or acted, there is no ground on that account for the interference of this Department in behalf of Mrs. His. Mrs. His has the same right to appear before the Swiss courts and to invoke the action of the Swiss tribunals as any citizen of Switzerland has. This right is guaranteed by treaty. If she should be denied that right then she would have the right to appeal to the Executive Department of our Government to enforce it, but until there is such a denial, she, having either submitted herself to the jurisdiction of the Swiss courts or asked the intervention of the executive authorities of the Swiss Government, must, so far as she is concerned, submit to their final action (Vattel, p. 172), and our Government would not be justified in interfering in her behalf, unless it should appear that there has been a denial of justice—that is, a refusal to grant her a fair hearing.
In this case it is very clear to me that no such condition of things exists. It can not be said that in her case there has been a denial of justice. As the mother of the child, as the divorced wife of Albert His, she has had a hearing, and, as far as the record shows, a fair hearing; some errors of judgment, perhaps, but a full opportunity to have them corrected.
It is evident that neither Secretary Blaine nor Secretary Foster was possessed of all the facts of the case, nor was Mr. Warner, from whom Mr. Blaine received his information of the facts, as he, Mr. Warner, had learned them from the counsel of Mrs. His. The last appeal of Mrs. His to the high federal court has not yet been disposed of, nor has [Page 663] the intervening petition of Albert His for an amendment or modification of the decree of divorce been tried upon its merits.
The fact, however, that Mrs. His has sought her remedy in the Swiss courts should not in any way affect the rights of the child as a domiciled citizen of the United States, or the right and power of the executive department of our Government to interfere in its behalf. Neither Mrs. His nor Albert His has the absolute right to the continued custody of the child, because, in the interest of the child, the courts of the United States or of Switzerland, whichever may obtain jurisdiction over the person, have the undoubted power, according to the well-established principles of the civil law in all civilized countries, to deprive either or both parents of the custody of the child if it be found that they are not proper persons to have such custody.
It would seem, therefore, that whatever action the Department may deem proper to take in this case, the interest of the child could not well be ignored. Inasmuch as Mr. His is not asked to be punished or delivered up because, as is alleged, he was guilty of a crime in taking away his own child when he thought it improperly cared for, his action can cut no figure in this case, except so far as he has violated the territorial sovereignty of the United States, and taken by force one of its citizens beyond our jurisdiction and into the territorial jurisdiction of another nation; that he has put himself in contempt of a Swiss court or made himself amenable to the criminal law of New York can not affect the case one way or the other. As the child is an infant of such tender years as to be incapable of expressing a wish in regard to what should be done or of determining to which country it will owe allegiance or of asking the interference of our Government in its behalf, that Government must act for it as may seem best for its interests. If the child remains in Switzerland, it will be the right and duty of the judicial tribunals of that country to take care of it; if the child is sent back to the United States upon the demand of our Government, the courts in New York will have the right to take such action in regard to the custody of the child as may seem best for its interests, without regard to the decree of the Swiss court in the divorce case.
About ten days ago I wrote to Dr. Emil Frey, who has acted as counsel to Mrs. His in the proceedings of the courts heretofore referred to, and have also written to Mr. Kurz, counsel for Albert His, requesting a brief statement from each, of their version of the matter, but have as yet received no such statement. After having heard the statements of counsel I may deem it necessary to make a farther report.
Having presented so full a statement of the matter for the consideration of the Department, I ask to be excused for the present from making any suggestions as to what further diplomatic action shall be taken in the case. Whatever further action the Department may conclude to take, it will be my duty as well as my pleasure to carry out its instructions.
I have, etc.,