Mr. Pendleton to Mr. Bayard.
Berlin, February 21, 1888. (Received March 12.)
Sir: Referring to your instruction No. 284 of the 30th ultimo, I beg to state that no German law appears to exist which prohibits the manufacture of “Spielmarken,” as such, alleged in the inclosures accompanying your instruction to be largely imported into the United States, and there used for fraudulent purposes. Pieces of metal having a superficial [Page 614] resemblance to the coins of this country, and called “Spielmarken,” are in very general use here as counters or tokens in card playing and in other games, and it does not appear that any objection to their manufacture has been raised by the authorities. With respect to the “Spielmarken” referred to in your instruction and its inclosures as representing closely in size, color, and partly in design the several gold coins of the United States, different views as to the permissibility of their manufacture might be taken by the German authorities if an opportunity to inspect the particular ones complained of were afforded them.
From an examination of the laws, it would appear that liability to punishment for the manufacture in this country of “Spielmarken” would depend upon the exactness of the imitation and the intent with which they were made; in short, a case of counterfeiting of coinage would have to be made out.
Under the title of “Crimes and misdemeanors affecting coinage,” sections 146 to 152, inclusive, of the Imperial Penal Code, make what would appear to be ample provision for the punishment of counterfeiting, imitating with fraudulent intent all domestic and foreign coinage, paper money, and a large variety of securities regarded as the equivalent of paper money, as well as for the punishment of the making of and procuring and having in possession with fraudulent intent, dies, plates, etc., to be used in manufacturing the same. Section 4 of that code even goes so far as to declare a foreigner counterfeiting foreign money in a foreign country liable to the penalties imposed for the crimes (not for the misdemeanors) affecting coinage in the sections above cited.
As regards the inquiry relating to postage-stamps: Under the title of “Forgery of documents,” sections 275 and 276 of the code referred to impose punishment for the use of counterfeited postage, revenue, and other stamps, provided the person using them does so with the knowledge that they are counterfeits, and also for the manufacture of the same with the purpose of using them as genuine. The word “foreign” is not used in the statute in this instance, and there seems to be some doubt as to the intention of the law in this case and the liability to punishment for the act as affecting foreign stamps, although, as I am informed, one judicial decision (not by the supreme court) has been had declaring such liability to exist.
Under the title of “Trespasses (Übertretungen),” subdivision 4 of section 360 of the same code imposes punishment upon persons who, without being thereto empowered in writing by competent authority, manufacture or deliver to any one other than such competent authority dies, plates, etc., which may serve for the production of metallic or paper money, and of other values, among which postage-stamps are, however, not included, designated as equivalent to paper money in section 149 of the code. Subdivision 5 of section 360, above mentioned, imposes the same penalty upon persons making impressions from such dies, plates, etc., or delivering such impressions to any one except the competent authority. The following subdivision, No. 6 of the same section, imposes the same punishment upon persons who manufacture or put in circulation cards recommending wares, announcements, or other printed matter, or representations which in form or ornamentation resemble paper money, or the values designated as paper money in section 149, or who manufacture dies, plates, etc., which may serve for the production of the articles enumerated. It will be observed that the statute here speaks of representations which in form and color resemble paper money and its equivalent only, and not of such as resemble metallic money—”Spielmarken,” for instance.[Page 615]
To recapitulate: The manufacture of “Spielmarken,” as such, is not prohibited; the counterfeiting of foreign as well as of domestic metallic and paper money, and of values to be regarded as the equivalent of paper money, is prohibited; the use, with the knowledge of their being counterfeits, and the manufacture, with the purpose of using them as genuine, of domestic and (in the light afforded by one judicial decision) of foreign postage stamps is prohibited; the manufacture of cards, etc., which in form and ornamentation resemble paper money or its equivalent, is prohibited with respect to domestic and, presumably, with respect to foreign paper money and its equivalent, although no judicial interpretation of the statute on the latter point is known to the legation.
In conclusion, I beg to suggest that, if feasible, samples of the “Spielmarken” and of the “imitations of coins, postage-stamps, and other obligations of foreign governments and of our own, in full size and in miniature and of exactappearance of genuine issues”, which are stated in an inclosure to your instruction to be imported into the United States from Germany, their importation leading to great abuse and injury, to be furnished for the purpose by the chief of the secret service division of the Treasury Department, be transmitted to this legation, together with such representations as may be deemed necessary and appropriate, for submission to this Government.
Such action would, perhaps, lead to the prosecution of offenders; to the testing of the intendment, where doubtful, of the German laws relating to this subject; to their amendment if found necessary in the interest of justice; and to the ultimate punishment of the manufacturers and suppression of the manufactures complained of, if the latter are found to be unlawful.
I have, etc.,