No. 169.
Mr. Everett to Mr. Evarts.

No. 86.]

Sir: Referring to your instruction No. 36, of the 25th November, 1878, I have the honor to inclose a note, with inclosure, received from the imperial foreign office on the subject of laws against counterfeiting the paper currency of the United States. In applying for this information I also took the liberty to inquire as to the laws concerning counterfeiting postage and revenue stamps of the United States, as complaints and specimens of such counterfeiting have been brought to the notice of the legation by the principal postage-stamp collector of Berlin. For this species of fraud there seems to be little chance of redress under German law, according to the reserved ruling of the foreign office.

I have, &c.,

[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.