[Inclosure in No.
86.—Translation.]
Memorial concerning the question whether the
imitation or counterfeiting of American paper currency and American
postage and revenue stamps is threatened with punishment by the laws
of the German Empire.
The legal provisions relating to the subject are contained in 146 and 275
of the imperial penal code, and read as follows:
- § 146.
- “Whoever imitates domestic or foreign metallic or paper money
in order to use or otherwise put into circulation the imitated
money as genuine, or whoever, with the same purpose, gives to
genuine money, by an alteration thereon, the appearance of a
higher value, or to obsolete money, by an alteration thereon,
the appearance of existing validity, shall be punished with
imprisonment in the penitentiary (at hard labor) of not less
than two years; police surveillance is also admissible. In case
of extenuating circumstances the punishment will be imprisonment
(without hard labor).”
- § 275.
- “With imprisonment of not less than three months shall be
punished, whoever, 1, knowingly makes use of false or falsified
stamped paper, of false or falsified stamped seals, stamped
forms, stamped impressions, postage or telegraph stamps, or
stamped letter envelopes; 2. Whoever manufactures with the
purpose of using as genuine counterfeit stamped paper,
counterfeit stamped seals, stamped forms, or stamped impressions
for playing cards, passports, or other printed matter or
documents, as also postage or telegraph stamps or stamped letter
envelopes; 3. Whoever falsifies with the purpose of using at a
higher value genuine stamped paper, genuine stamped seals,
stamped forms, stamped impressions, postage and telegraph stamps
or stamped letter envelopes.”
In accordance with the plain text of § 146, the inquiry as to American
paper money is to be answered in the affirmative.
On the other hand, it is disputed whether the punishment threatened in §
275 of the imperial penal code applies when the acts contemplated
therein have been committed with reference to foreign stamps, stamed
seals, &c. The Prussian supreme court has, under the rule of § 253
of the former Prussian penal code, which substantially conforms to § 275
of the present code, repeatedly declared the falsification of foreign
postage stamps to be punishable (see Oppenhoff, decisions of the
Prussian supreme court, vol. 10, page 806, ff., vol. 11, page 496). The
arguments for this view derived from the absence in the law of an
expression of the distinction between the home country and foreign
countries, from the history of§ 253, and from its insertion in the penal
code under the “title” concerning the falsification of records, also
hold good as regards the imperial penal code; and the greater number of
the commentators on the imperial penal code have adopted the view of the
Prussian supreme court (Oppenhoff, Schwarze; see also Dambach, in the
“Gerichtssaal” (court-room), vol. 23, page 265, ff., and Herkel in v. Holtzendorff’s Treatise, vol. III, page
809.)
On the other hand, others (see Rüdorff, in his Commentary on the Imperial
Penal Code, on § 275) have eon tended for the limitation of § 275 to
domestic stamps, seals, [Page 365]
&c., and for the reason principally that in this class of offenses
it is purely a question of injury to fiscal interests.
It cannot he denied that the latter view is supported by reasons of great
weight. That the purpose of the penal provisions in question is to
secure to the state the receipt of certain dues and fees would seem
evident from the peculiar relations of these provisions to the home
state. Nor does the placing of § 275 under the title “falsification of
records,” of itself alone justify the assumption that the principles
applying to the falsification of records (§§ 267 to 270, Imperial Penal
Code), and in particular the equality of domestic and foreign records,
acknowledged in § 267, should be extended to the offenses treated of in
§ 275.
Finally, the remark in the “motives” to § 276 of the imperial penal code
(Stenographic Reports of Imperial Parliament, session 1870, page 80)
might not be unworthy of consideration; pursuant to it, particular
directions concerning the use of postage and telegraph stamps that have
become invalid are here—i. e., as regards § 276,
in contra-distinction to § 275—considered to have been indispensable in
view of the penal provisions affecting the same subject contained in the
law concerning postal matters of the North German Union of November 2,
1867, § 30 (“Bundes” Law-Bulletin, page 68), and in the “Bundes” law
concerning telegraph stamps, of May 16, 1869, § 2 (“Bundes”
Law-Bulletin, page 377). This remark would be of but partial application
if it had been the purpose of the proposed law to afford in §§ 275 and
276 penal protection to foreign stamps and seals also.
What the judicial decisions would be in cases that might occur involving
the interpretation of § 275 cannot, therefore, be stated with
certainty.
