Mr. Gresham to Mr. Broadhead.

No. 70.]

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 native-born 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 [Page 675] 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.