Mr. Storer to Mr. Hay.

No. 165.]

Sir: The inquiry of the Department on the subject of the legislation of Belgium for the protection of the Belgian flag as the national emblem was answered by me in my dispatch No. 119, dated June 8, 1898, as fully as at that time was possible under the then existing theories of the law.

In that dispatch I stated the result of the investigation of the Belgian Government on the subject as reported to me, namely, that there were no means, either civil or criminal, established by law to prevent the use of the Belgian flag for any commercial or industrial object, including advertising purposes, except the possible result of a civil action brought by the Government for “usage abusif,” for which up to that time there had been no precedent.

The widespread interest taken in this subject in the United States, shown by various circular letters and requests for information from bar associations and different patriotic societies sent to this legation, as well as the inquiries of the Department, seem to make a report of a certain advance in legal procedure on this subject since the date of my former dispatch interesting and possibly of real value.

On the day of the parliamentary election, May 23 last, certain individuals belonging to the socialist party, as part of their political campaign, burned the Belgian flag publicly in the streets of Charleroi, and treated the fragments remaining with the greatest ignominy.

The legal authorities at first were rather at a loss to know what course to pursue to punish this act, as no precedent and no penal statute existed which at first sight could technically cover the occurrence.

In the Charleroi case the court of examining magistrates (le parquet), having the functions both of a grand jury and of the court passing on the legal effect of an act as to whether it constitutes a crime under the laws, decided the laws to be broad enough to cover the matter.

The counsel for the defense, among the ablest in Belgium, seemed to be convinced by the reasoning of the parquet and took no writ of error to the court of cassation from this decision of the parquet. The case was then sent to the procureur-general or State prosecutor of the province of Hainaut, and he, before the court of assises at Mons, then presented his indictment against the chief participants on the following principles:

The Belgian constitution of 1831 contains the following provision: “Article 125. The Belgian nation adopts the colors red, yellow, and black.”

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The report of the committee drafting the constitution declared on this subject that these colors “are the sign of the independence of Belgium.” The “Pandectes Belgec,” or Commentaries on the Constitution of Laws, considered of the highest authority, say, on this subject, “It is the flag which, in a word, everywhere and always represents our country.”

The law of July 20, 1831, contained the following provision: “Article 2. Whoever shall have maliciously and publicly attacked the obligation of the law (la force obligation des lois), or directly shall have incited disobedience to the law, shall be punished by imprisonment of from six months to three years.”

Based on these enactments, the indictment asserted that the accused had attacked the obligation of the law and incited disobedience to it by this insult to what represented not only law and order, but the country itself, “for,” to quote the indictment, “the flag represents the country, and the country means the land and the constitutional and legal institutions which govern it, and which form and organize our social life and our nationality.”

It is interesting to compare the language of article 125 of the constitution of Belgium with that of our act of January 13, 1794, Revised Statutes United States, section 1791. Each of these enactments state in the baldest language, of practically the same legal force, what the color and form of the national emblem shall be, and nothing else. Equally interesting it may be to distinguish the Belgian law of 1831, making penal the attack on the obligation of the law and which punishes the inciting to disobey the laws, from the more narrowly limited provisions of our section 5336 of Revised Statutes, which in words covers only an attempt by force to prevent, hinder, or delay the execution of any law of the United States.

In the Charleroi case the court of assises upheld the indictment, held the insult to the Belgian flag constituted a legal crime, and, after conviction by the jury of both the defendants, sentenced them to the minimum penalty of six months’ imprisonment.

The entire novelty of the case and the well-recognized fact that there had been no legal precedent, has given great notoriety to this decision of the court.

The opinion of the court of cassation can not now be had in this case, as there exists no appeal from the court of assises on questions of fact.

I have, etc.,

Bellamy Storer.