Mr. Gresham to Mr. Broadhead.

No. 29.]

Sir: Your very complete and instructive report upon the case of the child, Constance Madeleine His, has been received.

You state that there has not, so far, been any denial of justice to Mrs. His as a litigant against her husband in the Swiss courts for the possession of the child, the court of last resort having not yet passed upon the rights of the parties. You, however, intimate the opinion, which I think is correct, that the right to the custody of the child as between its parents is quite apart from the international rights involved.

Those rights must be determined upon a few facts in the case, which are not denied and are undeniable. They are that in the spring of the year 1891 the child, Constance Madeleine His, was living in New York, where she was born and where she had continually resided since her birth. She was and is an American citizen.

On the 5th day of May, 1891, the father, a citizen of Switzerland, who had come to this country for the purpose, surreptitiously abducted the child from New York and carried her to Switzerland, where she is now detained with the sanction and by the aid of the Swiss courts. This detention is a clear violation of the sovereignty of the United States. The fact that the child was abducted from the custody of its mother, who, by decree of a Swiss court, had been intrusted with that custody to the exclusion of its father, is not especially relied on as the foundation of the international claim. Nor, on the other hand, does the fact that the child’s abductor was its father affect the question of international rights. She was under the protection of the laws of the State of New York and subject to the jurisdiction of that State, which, like all other [Page 668] civilized states, possesses and exercises the ultimate right of guardianship and custody over every infant within its jurisdiction, as against either parent, or, if the good of the child requires it, against both parents.

Should a person of full age residing in this country, under the protection of its laws and subject to its jurisdiction, be kidnapped and taken to Switzerland to be prosecuted for a crime, or for the purpose of giving jurisdiction in civil proceedings to the Swiss courts, it would surely be the right and the duty of this Government to demand his liberation and the cessation of all proceedings against him. Nor can it be doubted that the Swiss Government would at once recognize the just foundation of such a demand, based, as it would be, upon well-established principles of international jurisprudence.

The criminality of such person or his liability to respond civilly in damages might be clear beyond a doubt. The integrity and justice of the Swiss tribunals and of the proceedings so far as they might have gone might be beyond all question. But these considerations be foreign to the question in its international aspect.

That the victim by whose abduction our sovereignty and territorial rights have been violated was an infant; that its abduction was not by violence but by stealth; that its abductor was its father, and that the Swiss courts, in the litigation between the parents over the custody of the child have not, so far, denied justice to the mother, does not differentiate this case in principle from that above suggested.

I am, etc.,

W. Q. Gresham.