Papers Relating to the Foreign Relations of the United States, 1894, With the Annual Message of the President, Transmitted to Congress, December 3, 1894
Mr. Broadhead to Mr. Gresham.
Legation of the United States, May 19, 1894. (Received June 11.)
Sir: I have the honor to inclose herewith a communication from Mr. Lachenal, chief of the department of foreign affairs of the Swiss Confederation, with a translation of the same, in reply to my communication of the date of October 23, 1893, relating to the case of Constance Madeleine His, by which it will appear that the Swiss Federal Council adheres to its opinion heretofore expressed, and declines to accede to request for the surrender of the child, or to take any further action in the matter.
I also inclose herewith a copy of the judgments and decrees referred to by Mr. Lachenal in his communication, with translation of the same.
I have, etc.,
Mr. Lachenal to Mr. Broadhead.
Federal Department of Foreign Affairs, May 9, 1894.
Sir: In reply to your note of the 23d of October last, we have the honor to repeat that it is not possible for the Federal Council to modify its manner of viewing the subject of the His-Turner affair. For reasons already expressed in our notes of May 7 and September 12, 1892, and of May 8, 1893, Nos. 1513, 3433, and 2263, the Federal Council can not consider that there is anything there which can give any offense whatever to the sovereignty of the United States of America.
It is the matter of a contest of private right which is argued before the native tribunal of Swiss citizens. Now, in the light of the judicial and legal principles in force in Switzerland, it is impossible to deny (disregard the fact) that the acts with which Mr. His is reproached were taken in the exercise of the paternal power of which he has never been declared deprived—under the limitation, however, of the opinion of competent tribunals in regard to what concerns the custody of the child born of the marriage.
Now the tribunals have pronounced in a definite manner. The sentence of the tribunal of the district of Zofingen of January 22, 1890, upon which the reclamation of Mrs. His-Turner is founded, has been modified in part by a new judgment of the same tribunal under date of August 11, 1893. In virtue of this judgment, confirmed October 21, last, by a decree of the court of appeals of the Canton of Argovie, of which a copy is herewith inclosed, the custody and education of the child Madeleine His has been taken from the mother and intrusted to the father. This new decision has become executory, the appeal taken against it to the federal tribunal having been rejected by the latter by judgment of March 1, last.
Under these circumstances the Federal Council must declare that it considers that this affair has received its regular solution. It regrets to say that it is no longer possible to enter further on the matter of reclamations, which might be addressed to it on the subject, and hopes that the Government of the Union will be pleased to share this manner of viewing it.
Please accept, Mr. Minister, etc.,
Department of foreign Affairs, Political Division.
Decree of the Court of Appeals of the Canton of Aargau.
We, the chief justice and high court of justice of the Canton of Aargau, declare hereby:
Upon summons there appears to-day before us, Counselor M. Schmidt, attorney of Mrs. Carrie His-Turner, of New York, defendant, party appellant, versus Counselor Kurz, attorney of Albert His, manufacturer at Murgenthal, plaintiff, party appellant, to plead before the high court and to obtain a judgment in their litigation upon which the district court of Zofingen had given judgment on 3d August, 1893.
From the documents and pleadings we have collected the following items:
On the 22d of January, 1890, the district court of Zofingen gave the following judgment in the divorce case between the litigant parties:
- 1.
- That the marriage contracted between Albert His and Carrie O. His be completely dissolved.
- 2.
- That the child Constance Madeleine, born of this marriage, be adjudicated for maintenance and education to her mother, with the understanding that the father shall be at any time entitled to visit the child; if the mother dies before the father and before the child has become of age, the right and duty of educating her shall devolve upon the father.
- 3.
- The term of suspension within which the divorced may not contract a new marriage is fixed for both parties at one and a half years.
- 4.
- Albert His shall pay the cost of this divorce suit; Mrs. His, however, can not claim any benefit for her attorney and her appearance.
This judgment became valid. Mrs. His having come to Europe for the divorce suit, returned to America with the child which was born July 23, 1887, and whom she had brought as far as London. In March, 1891, plaintiff went on business to New York, where he inquired after his child. From what he learned in this matter, and from what he witnessed himself, he was convinced that the child was badly provided for. He took her with him to Europe, and on November 11, 1891, he presented the following petitions to the district court of Zofingen: That through a partial modification in the judgment of the 22d of January, 1890, the child Constance Madeleine, descended from the marriage of the litigants, be committed for education and maintenance to the care of the plaintiff.
This petition was transmitted to the defendant, residing in New York, through the medium of a competent magistrate. She appointed a trustee in the person of Dr. Emil Frey, counsellor of Brugg, to attend to this lawsuit. After disputing for half a year over the question as to where the child should reside during the controversy, the parties, by their counsel, appeared on the 20th of April, 1892, before the district court of Zofingen. The counsel of defendant maintained that she was a citizen of America and residing in New York, and does not acknowledge the jurisdiction of the district court of Zofingen over herself or the child. He therefore pleaded the incompetency of the court, and claimed on that account that the defendant be not required to answer to this suit. This plea, which was opposed by the plaintiff, was rejected by the district court of Zofingen by judgment given April 20, 1892. After appeal having been lodged by the defendant, this decree was confirmed by the high court on the 29th of June, 1892, and the federal tribunal refused to entertain a further appeal taken before it.
Thereupon the plaintiff demanded a hearing on the main point of the lawsuit. The parties were summoned into court for the 23d of November, 1892. The defendant did not appear, and the court imposed upon [Page 672] her a fine of 20 francs and costs, and decided on a further summons with a threat to give judgment in contumacy as per section 101, lemma 2 of the regulations for civil procedure. This decision was, however, repealed by a decree of the high court on the 9th of February, 1893, whereupon the parties agreed that the written petition of plaintiff should be sent to the adverse party in order that she might send in a written plea. This was done, and on the 17th of April the defendant’s counselor sent in a declaration by which he endeavored to show that the district court of Zofingen, through its judgment of the 22d of January, 1890, has exhausted its power to act in this cause, and therefore is not competent to pronounce judgment on the plea brought in by hes plaintiff; for this petition is the commencement of a new action, and ta the divorced Mrs. His is an American citizen, residing in New York, she was not within the jurisdiction of any Swiss court. This declaration concludes as follows:
The defendant requests that this her plea be registered in extenso in the minutes of the court as a formal protest against the proceedings of the court in entertaining any consideration of the His plea for revision, which protest is based upon the legal proposition that the original decree of divorce having been once registered, the functions and power of the court ceased, and the court was no longer competent to modify in any way the divorce decree of the 22d of January, 1890, and that the court is also wanting in competency to make any further order in regard to Miss His (the child).
After replication and rejoinder, the parties were summoned to appear on the 3d of August for a verbal debate. Neither defendant nor her counsel appeared, but sent in a declaration in which the views taken in former actions were maintained, and any participation in the proceedings of the court in this case was declined.
On motion of the plaintiff, the party present, the court issued the following decree for contempt:
- (1)
- The party defendant to be put to a disciplinary penalty of 30 francs and costs for unjustified nonappearance, and to pay plaintiff’s costs, amounting to 29.65 francs.
- (2)
- The party defendant shall be summoned once more for the final proceedings, with a warning that in case of noncompliance, judgment in contumacy will be given as per section 101, lemma 2, of the law of civil procedure.
After this the parties were again summoned into court for the 16th of August, with a threatening to the defendant to be disqualified, as per section 101, lemma 2, mentioned in the regulations of the civil law, but the plaintiff only appeared, who requested that his auction be brought to a close, under adjudication of costs, whereupon the district court of Zofingen delivered the following judgment:
- (1)
- That after a partial modification of the judgment given on the 22d of January, 1890, the child, Constance Madeleine, the issue of the litigants, be committed for education and maintenance to the care of the plaintiff.
- (2)
- Defendant shall pay the costs of the litigation incurred by the plaintiff, excepting any former decisions on that point, to the amount of 990.50 francs.
The defendant party lodged, in due time, the following declaration against this judgment:
We appeal from this judgment to the high court, as we do not recognize it in any part, and we pray the court of the second instance to consider our legal objections on the subject of jurisdiction. The protest which was entered on the minutes of the proceedings of the court of the first instance is reentered for that of the second instance, and it is to be understood as if the declaration made before the court of the first instance is repeated and recorded by the court of the second instance, and it is specifically referred to in this declaration.
Upon the legal question as to what may be decided in this matter we decide
(1) In conformity with section 337 of the civil procedure the appellant [Page 673] must state precisely the points which he wishes to make against the judgment of the lower court. The declaration of appeal does not come up to this requirement, no positive demand being made and considered in a formal point of view. According to the Aargau regulations we might decline to enter upon the consideration of the appeal.
(2) But the objection against the judgment of the lower court may also be interpreted in such a way that the plea of noncompetency of the court be considered as legal and the defendant be liberated from entering upon plaintiff’s request for a modification of the decree of the 22d of January, 1890. From the point of view this plea is but a repetition of the demand made before the district court of Zofingen on the 20th of April, which was rejected by both the lower and the higher courts. He must therefore refer to the judgments of the district court of Zofingen of April 20 and of the high court of June 29, 1892. In the latter particularly it has been clearly proved that the district court of Zofingen is fully competent to decide on the petition for revision of the judgment of January 22, 1890, in regard to the adjudication of the child to the mother, wherein the mother was intrusted with the education of the child.
And it is sufficient to mention here that the federal tribunal holds the same opinion, viz, that the same judge who had pronounced on the divorce itself shall also decide as to the consequences thereof, and accordingly as to the education of the children, and this in accordance with the law of the canton, to the jurisdiction of which the husband is subject. (Decisions of the Federal Tribunals, XVIII, p. 67, etc., article 49 of the Law of Civil Marriage.) In case of a change in the situation the Argovian judge has at all times decided, under sections 149 and 151 of the common civil law, his competence to reconsider the dispositions of the divorce sentence as regards the children, and to alter such dispositions wl ere the interest of the children made it necessary. The federal tribunal also does not consider such dispositions as irrevocable, but vindicates to the court of wards the right to modify them. (Decisions of the Federal Tribunal, XIV, p. 34, etc.) The objection pleaded in this new issue as to the noncompetency of the Argovian and federal judges is thus also in this form wholly unfounded.
(3) Although, according to the foregoing statement, the defendant ought to have answered the petition of plaintiff of October, 1891, she did not do so. Neither did she appear before the court upon the summons issued to her for the 3d of August, and was consequently fined, with costs, and again summoned for the 17th of August, under special reference to section 101, lemma 2, of the C. P. L., that in case of nonappearance after the second summons the opponent should be granted his petition. Having again failed to appear, she can not now complain of the threatened forfeiture having been pronounced and the plaintiff’s petition granted, the less so as the actual facts stated in the records have to be accepted as true by the judge, and as these statements justify fully the modifications introduced into the decree of January 22, 1890.
We therefore confirm the judgment of the lower court, and decide that the defendant’s appeal opposed to the judgment is dismissed, and that she be held to pay to the plaintiff 45.05 francs for costs of the second instance.
Aargau, 21st of October, 1893.
In the name of the high court:
(Signed)
The substitute of the clerk:
(Signed)