Mr. Foster to Mr. Washburn.
Department of State, July 27, 1892.
Sir: Your dispatch, No. 134, of May 10, is received, in which you transmit the reply of the Federal Council to the request of this Government for the surrender to its jurisdiction of the child Constance Madeleine His, a native-born American citizen, who was abducted from New York and taken to Switzerland under circumstances fully set forth in Mr. Blaine’s instruction, No. 102, of March 1 last.
I regret that the Swiss Government does not regard those circumstances such as to require the child’s return to the United States. Its [Page 650] position seems to be that however wrongfully the child was taken from this country and brought into Switzerland, since she is now there and the subject of proceedings pending in its courts, the executive authority will not interfere, but the custody of the child must abide their result. None of the proceedings referred to were begun until after the wrongful abduction of the child, which it is clearly their sole purpose to sustain. The position taken by the Federal Council permits Mr. His, in contravention of a fundamental principle of equity, to take advantage of his own wrong. Generally, too, it would permit any person to enter the territory of a friendly government and abduct or kidnap its citizens and carry them into its own country, where they must abide the result of whatever proceedings may be instituted against them or with respect to them.
Since this case was officially presented by you to the Swiss Government, March 14 last, the Government of Great Britain has voluntarily agreed to return a youth of 15 years of age, who had been taken from the State of New York without process of law, to the place whence he was abducted. In that case the boy was a citizen of Canada and having committed an offense there had fled to the United States. Whether he was kidnaped or enticed across the boundary is not fully clear, but after he was taken to Canada he was tried, convicted, and sentenced to a reformatory. If the position of the Federal Council is correct, it is an unfortunate distinction which, in deference to the sovereignty of a friendly Government, compels the return of an alien culprit, but will not secure the return of this innocent child.
This Government agrees with the Federal Council that Constance Madeleine His “can not be considered as a thing and shipped like merchandise from one country to another,” but it finds in that fact a further reason why she should be returned to the place whence she was taken. If Mr. His had simply carried away some article of property, there might be more force in the observation that it must be recovered through the courts. I can not but hope that the Federal Council, upon further consideration, will regard the application of this Government for the return of the child more favorably.
I am, etc.,