Mr. Wharton to Mr. Cheney.

No. 6.]

Sir: I have to acknowledge the receipt of your Nos. 5 and 7 of January 30 and 31, 1893, and to express the Department’s regret that the federal department of foreign affairs of Switzerland continues to maintain what I can not but regard as an untenable position in the case of Constance Madeleine His. The argument appears to be that, as the case is before the competent tribunals, the executive cannot intervene. But the Swiss courts can not be considered to be competent.

Carrie Turner His, the mother of the child, has not appeared before them either as plaintiff or defendent in regard to the subject-matter of the litigation. She has taken no steps beyond chat of denying their competence. Maintaining, as the Swiss courts have hitherto, the custody of the child with the father, they allow him to take advantage of a crime for which he has been indicted in New York. This is in direct violation of the fundamental principle of all systems of jurisprudence, that no one shall profit by his own wrong, and is as contrary to ethics as to justice.

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The judgment decreeing a divorce in favor of Carrie Turner His and awarding her the custody of the child was not the judgment of an American court, to which the Swiss Government might take exception on the ground of the nationality of the parties according to the Swiss law, their personal status, domicile, etc., but was the judgment of a Swiss court, the competency of which the Swiss Government can not impugn.

In flagrant contempt of this judgment, Mr. His abducted the child from the custody of its mother, committing thereby a crime and violating the judgment of the tribunal of his own country.

He is now, therefore, under indictment for a crime in New York, and in obvious contempt before the Swiss tribunals; yet, nevertheless, the Swiss Government has declined to intervene and Mr. His is protected from and profits by a felony committed in the State of New York and in contempt of court, and in violation of the judgment of the tribunals of his own country.

You are instructed to present this matter to the Swiss Government, emphasizing its salient features, and to express the surprise and regret experienced by this Department that it should not have apprehended the circumstances environing the case. Upon more careful consideration, I do not doubt that its sense of justice alone would lead it to comply with the request of the United States Government, a request founded as well in equity as in law.

I am, etc.,

William F. Wharton,
Acting Secretary.