It seems becoming in me to offer no suggestion at the present time upon
the subject, but to await the further instructions of the
Department.
[Inclosure in No.
184.—Translation.]
Federal Council to
Mr. Washburn.
Mr. Minister: In reply to the notes of your
excellency of March 14, April 5 and 19 last, touching the His-Turner
case, we have the honor to inform you, by direction of the Federal
Council, that it can not under the existing circumstances take the
steps which you have requested in behalf of your Government.
The case received, on the part of the proper Federal department, an
exhaustive examination, and the considerations which preclude the
Federal Council from carrying out your excellency’s request are as
follows:
Under the laws of Switzerland and according to the principles of law
applying to the matter in Switzerland, the act of Mr. His can not be
looked upon as an offense. In his capacity as father of the child in
question, Mr. His enjoys imprescriptible rights over her, as well as
[Page 649]
over the mother of the
same; the education of the child only was, in consequence of an
agreement entered into by the parties and in execution of a judicial
decree, intrusted to the mother, the charge of a pecuniary education
being placed on the father. This very fact reserved for him the
right of seeing to it that the child receive the attention necessary
for her physical and intellectual development.
By taking the child away with him he has merely broken the agreement
entered into by his wife and himself with the sanction of the
courts. It is on that ground only that the injured party might
eventually bring suit against him before the competent court. This
is what has taken place, the parties having placed the case before
the tribunal of the Zofingen district. The decision is thus vested
in the judiciary and the Federal Council in its executive capacity
is not competent to intervene in the suit.
Moreover, it is worthy of notice that the decree of divorce granted
by the court of the Zofingen district of the 22d of January, 1890,
does not stand in force at this day, but, instead, the decision
arrived at by the same court on December 9, 1891, that is to say;
long before the intervention of the U. S. Government. That decision,
confirmed by the court of appeals of the canton of Aargau on January
15, 1892, declares that the child is to remain in Morgenthal until
final judgment passed by the courts upon the petition of Mr. His
praying for a partial modification of the above-mentioned decree of
divorce. In regard to the competency of the court as to making a
decision of that kind, it can not be disputed, for any court may, in
the presence of new circumstances, reconsider a preceding decision,
either to modify or confirm the same.
The provisional step taken by the court also makes it unnecessary for
the Federal authority to interfere with a view to obtaining that the
child remain in her present residence; the authorities of the canton
are already charged with that duty.
Without in the least approving Mr. His’s proceedings, we confine
ourselves to stating that the act for which complaint is made
against him is a “consummated” fact, on which the courts have been
called upon to pass. Under those circumstances any intervention on
the part of the executive authorities is precluded.
Finally, the courts will have to determine the right of “personality”
on behalf of the child, who can not be considered as a “thing” and
shipped like merchandise from one country to another.
Accept, etc.
