No. 502.
Mr. Schuyler to Mr. Fish.

No. 109.]

Sir: Referring to my dispatch No. 105, of the 21st of April, I have the honor to inclose to you herewith, marked 1, a short study of the problem of international law, raised by the German note of the 3d of February, from a strictly juridical point of view, by Mr. J. Horning, professor of public, international, and penal law in the University of Geneva.

This essay, which presents in a clear light the present state of European legislation on this subject, is particularly interesting, as it shows in the German legislation the same defects which the German government has pointed out in the legislation of Belgium.

It is now stated that the German government has addressed similar notes to the governments of Holland and Luxembourg.

Here it is authoritatively stated that the report that the Russian government had supported the remonstrance of Germany at Brussels is entirely without foundation.

I have, &c.,

[Inclosure 1 in No. 109.—Translation.]

study of the problem of international law.

The German note to Belgium of the 3d of February considered from a juridical point of view. By Prof. J. Horning, of Geneva.

From the point of view of present international law it is impossible to agree with Germany in the remonstrances which she has just addressed to Belgium.

The government of Berlin reproaches that of Brussels with not having in its laws sufficient directions for the repression of offenses committed on Belgian territory against the peace of neighboring states, that is to say, against the law of nations.

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In order to establish this accusation it would be necessary that Belgian legislation concerning this category of offenses should he less explicit and less severe than that of other civilized states, and particularly less so than that of Germany herself, since it is Germany who complains.

Now it will he seen that Belgian legislation on offenses against international law is nearly identical with that of the German Empire. It is even more severe; and, besides, in comparison with other European legislations, it is found to be one of the most complete and most rigorous.

In the first place the Belgian law and the German law are almost the same on this point. In fact, if the Belgian laws of 1852 and of 1858 are taken on the one hand, and the penal code of the German Empire (1870) on the other, these texts are seen to provide for the same offenses.

The Belgian law of 1852 is intended to punish offenses against the chiefs of foreign governments; the much more general law of 1858 deals with crimes and offenses which violate international relations. These two laws have been upheld by the Belgian penal code of 1867, which in its article 123, punishes only those who by hostile actions shall have exposed the state to hostilities on the part of a foreign power. The penal code of the German Empire provides for offenses against foreign states in its sections 102, 103, and 104.

These different laws, therefore, punish exactly the same offenses, namely, attempts against the life of the chief of a foreign government or against the form of that government, the act of publicly exciting the subjects of such government to arm themselves against it, offenses against such government and offenses and acts of violence against foreign diplomatic agents. As to the conditions which constitute an offense, the Belgian law of 1858 punishes an attempt against the person of the chief of a government as soon as criminal intention has been shown by external acts, forming a commencement of execution. It punishes a plot against the person of the chief of a foreign government, such plot having for its object to destroy or change the form of that government, or to excite the inhabitants to arm themselves against it, as soon as the plot has been followed by an act destined to prepare its execution. The German code says that every act, (attempts against the prince, constitution, &c.,) the object of which is to lead directly to the execution of the design which has been formed, ought to be considered as an enterprise constituting the crime of high treason.

Moreover, while the Belgian laws make no restriction here, the German code demands for the punishment of offenses in question the complaint of the government concerned and reciprocity in favor of Germany.

Therefore the German code says no more about the matter than the Belgian laws. It makes no better provision than they do for cases such as those of which the Berlin cabinet complains, viz, simple incitements to disobedience or the act of having simply proposed to a third party the undertaking of an assassination, when such proposition has been immediately rejected. There is in the latter case neither plot, preliminary act, nor attempt. The German code does not even punish an act of this kind when committed against the Emperor on German territory.*

Consequently Germany has not succeeded in sustaining that Belgium does not possess a legislation adequate to offenses against the law of nations. One country cannot require another to do more than it does itself.

The repression by each state of offenses committed on its territory against international law, is now a matter of general legislation. This is a great progress, for complications, or even war, may thus be avoided.

But no country goes farther, or even so far, as Belgium.

Thus our federal penal code of 1853, articles 41 to 44, punishes the following offenses: The act of violating a foreign territory, or of committing any other act contrary to the law of nations; outrage, against a foreign nation or its sovereign, or a foreign government; outrage against, or ill-treatment of, the representative of a foreign nation. It must be observed, besides, that our penal code, like that of Germany, requires, in order that an outrage against a foreign government may be prosecuted, the demand of that government and the reciprocity toward the confederation.

The Belgian law, we have said, does not mention these conditions. Article 37, quoted by Count Perponcher, has no reference to the subject under discussion, since it relates to offenses against the security of the confederation abroad. He makes there a pure and simple error.

Other European legislations do not go farther than that of Belgium. Thus the Austrian penal code (1852) is almost identical with the German code; it requires reciprocity in the same way. But above all, the French penal code of 1810, in articles 84 and 85, does not punish offenses against international law, except when they result in injury to France or to Frenchmen: “Whoever, by hostile actions, shall have exposed the state to a declaration of war, &c.; whoever shall have exposed Frenchmen to reprisals, &c.” Here France is evidently behind other European states. The [Page 1064] Italian penal code (1859) reproduces in the first place the dispositions of the French code, and then punishes in every case plots against the life of the chief of a foreign government. Lastly, English law and the laws of the American Union only punish offenses against diplomatic agents. (We have purposely not mentioned the repression of piracy, which belongs to another kind of idea.)

It is seen then by these references that Belgian legislation is, of all those of Europe, the most explicit and the most complete in that which concerns offenses against the law of nations. Consequently, from a juridicial point of view, Germany has no ground for reproaching her with not being on a level with the present general legislation.*

But, in conclusion, I wish to reserve entirely the political question. It is evident that the clergy and the Catholics of Belgium have exposed themselves to the remonstrances of Germany by meddling in the internal affairs of that country in order to excite the Prussian clergy to disobedience. Similar acts are not punished when they are committed on a foreign territory, but they are none the less imprudent and culpable. They clearly prove that ultramontanism places in peril the existence even of liberal states. The partisans of this doctrine see absolutely nothing but ecclesiastical interests, and sacrifice to them everything else. The ultramontane party of Belgium, in particular, shows, by its actions, not only that it has no respect for order and legality in foreign states, but even that it has no patriotism. In fact, in order to satisfy its clerical hatred, it does not scruple to expose Belgium to serious complications. It has very little concern for the welfare of the country, so long as it serves, the interests of the church. If, therefore, we cannot blame the Belgian government, we blame without reserve the imprudent and anti-patriotic conduct of those who have placed it in its present difficult position.

  1. The proposition of a plot, made and not accepted, was punished by the French penal code of 1810, but that article was suppressed in 1832.—Author’s note.
  2. It is strange that in its reply to the German note the Belgian government should not have thought of the argument which we have just developed. It confines itself to considerations of a political kind. There are indeed some words on the Duchesne affiair, but the true legal arguments are completely passed over in silence. I confess I cannot understand how the cabinet of Brussels could omit them.— Author’s note.