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I have requested the consul to obtain and transmit to me a full report of the proceedings in this case, which I have not yet received. Meanwhile I have the honor to ask your excellency to be so good as to let me know, at your early convenience, whether it be a fact that the laws of this country contain no penalties for counterfeiting the official seals of foreign embassies and consulates, I avail, etc.,

HENRY WHITE.

No. 211.]

Ambassador White to the Secretary of State.

AMERICAN EMBASSY,

Rome, June 20, 1906.

SIR: With reference to my dispatch No. 204, of the 13th instant, relative to the counterfeiting of the seal of our consulate at Palermo, I have the honor to inclose herewith a copy of the official copy," which I have received from the consul at Palermo, of the "Sentenza," or judgment, of the fifth section of the penal tribunal of Palermo in the case in question.

You will observe therefrom that in the view of the court, article 266 of the penal code only protects seals, marks, etc., " destinati per disposizione di legge o del Governo ad una publica certificazione" (destined by provisions of law or of the Government to public attestation), and that our consular seal, not having received such recognition from the laws of the Government of this country, is not protected by the article in question. Consequently the men accused of the violation of that article of the Penal Code were adjudged not guilty of having done so, however much they may have counterfeited our consular seal.

This morning I called upon the minister of foreign affairs and asked him whether he were yet in a position to answer the inquiry contained in the second paragraph of my note of the 9th instant or whether he had received any information relative to the case in question. He replied that he had written at once to Palermo for information on the subject, but had so far heard nothing.

I thereupon handed him the official copy of the inclosed "sentenza and pointed out to him that even if the men who were accused of counterfeiting our seal could not be convicted under article 266 of the Penal Code, as to which I expressed considerable doubt, wherein he seemed disposed to concur without, of course, committing himself to a positive statement upon such a cursory perusal of the document, they should nevertheless, in my opinion, not have been discharged, but that they might have been punished under article 413 of the Penal Code and article 424 of the Mercantile Marine Code, copies of which I handed to Signor Titoni and I also inclose herewith.

I added that in view of the fraudulent attempts constantly made, especially at Naples, Messina, and Palermo, and which seem to be on the increase, to violate our emigration laws and regulations, I felt strongly that every effort should be made by the Italian authorities to punish any offenders who could be discovered, and that in this instance. a failure of justice had, I thought, certainly occurred, which I hoped the Government would endeavor to rectify. The minister, who did not appear at all to like the look of the case himself, said he would at

a Not printed, the document in the Italian language being too lengthy.

once communicate with the minister of justice in the matter and let me know the result as soon as possible. I concluded my remarks by renewing the request contained in my note of the 9th for information, which I said that I intended to transmit to you, as to the penalties, if any, contained in the laws of this country against the counterfeiting of the official seals of foreign embassies and consulates.

I have, etc.,

HENRY WHITE.

The Acting Secretary of State to Ambassador White.

No. 106.]

DEPARTMENT OF STATE,
Washington, July 7, 1906.

SIR: I have to acknowledge the receipt of your No. 204, of the 13th ultimo, in regard to the counterfeiting of the American consular seal at Palermo, and I have to say that, as will more fully appear from the accompanying memorandum prepared by the department, the laws of the United States declare no penalties against counterfeiting a foreign consular seal as such, although the act of counterfeiting of foreign consular seals might, in certain events, prove to be one of the elements of a common-law crime against one of the States, or of certain statutory crimes against the United States. If it should be determined by the Italian Government and courts that the laws of Italy likewise contain no provision on the subject, it would seem that it would be a proper subject for consideration by the department with a view to a possible exchange of notes leading to an agreement on the part of both Governments to use all proper efforts to secure legislation covering the subject.

I am, etc.,

ALVEY A. ADEE.

[Inclosure.]

MEMORANDUM ON THE QUESTION WHETHER THERE IS ANY CRIMINAL LIABILITY ATTACHED TO THE COUNTERFEITING OF THE OFFICIAL SEAL OF A FOREIGN CONSUL IN THE UNITED STATES, AND WHETHER THE STATE OF THE LAW ON THIS SUBJECT IS SATISFACTORY.

DEPARTMENT OF STATE,

JUNE 30, 1906.

The American ambassador at Rome informs the department that according to advices received from the American consul at Palermo, Italy, it has just been held by the court of first instance that the penal code of Italy declares no penalty against the counterfeiting of the official seal of an American consul in Italy, the court holding that the articles of the penal code bearing on the general subject apply only to the counterfeiting of seals, papers, etc., having validity in Italy. The matter has been brought to the attention of the Italian Government by the American ambassador, and the minister of foreign affairs has agreed to examine into the question and inform our ambassador officially as to whether or not the Italian law is as declared by the lower court. Meanwhile, the American ambassador asks "what protection there be, if any, in the United States against such counterfeiting," and whether or not it is the wish of the department that the matter be further pursued, possibly with the suggestion that legislation be enacted to meet the situation."

66

First, as to the actual status of the law of the United States upon the point in question at the present time, counterfeiting a consular seal, as such, would of course not be criminal at common law, but it goes without saying that such counterfeiting might form a part of some common law crime, such as obtaining money under false pretenses, punishable in a state court.

The Constitution having confided our international relations to the Federal Government, if there be any penalty attached to the act of counterfeiting a consular seal as such, it must be of federal cognizance and statutory origin. A careful search of the federal statutes under all headings which can be supposed to have any bearing on the point in question fails to show any provision carrying a penalty against the act in question. That this immunity is the result rather of inadvertence on the part of the legislature, due to the fact that the question has never been called to the attention of Congress, rather than any lack of power on the part of Congress, or any lack of appreciation of the desirability of giving all necessary protection to the official acts of representatives of foreign governments, or any settled belief that the public policy of the United States renders it inexpedient to attach a criminal liability to such acts as the one in question, may be made to appear conclusively from the examination of the congressional legislation in regard to similar matters, and the rulings of the federal courts in upholding such legislation. The act of May 16, 1884 (p. 52, sec. 1, 23 Stat., 22), denounces penalties against those who "with intent to defraud * * forge, or counterfeit any bond, certificate, obligation, or other security, ment, or any treasury note, bill, or promise to pay, issued by such foreign government." Section 2 provides a penalty for uttering any of the forgeries or counterfeits described in section 1. Section 3 punishes the counterfeiting of foreign bank notes, section 4 the uttering of such bank notes, and section 5 the having in possession with intent to utter any such forged or counterfeit certificate, obligation, security, treasury note, bill, promise to pay, bank note, or bill issued by a bank or corporation as described in the preceding sections, while section 6 covers the having in possession of plates for forging foreign governments' securities or bank notes.

* of any foreign govern

Revised Statutes, section 5457, provides for the punishment of every person who counterfeits any coin"in resemblance or similitude of the gold or silver coins * * * counted or stamped at the mints or assay offices of the United States, or in resemblance or similitude of any foreign gold or silver coin which by law is, or hereafter may be, current in the United States or is in actual use and circulation as money within the United States." The section also covers uttering, selling, attempting to pass or bring into the United States from any foreign place, with guilty knowledge, the coins above described. Section 5459, Revised Statutes, prohibits the mutilating of "any foreign gold or silver coins which are by law made current or are in actual use or circulation as money within the United States," or the passing, or attempting to pass, of any coins intended for use as money, "whether in the resemblance of coins of the United States or of foreign countries or of original design."

The act of February 10, 1891 (p. 127, sec. 2, 742), provides a penalty for counterfeiting dies for foreign coins. Section 3 prohibits the making, importing, or having in possession, tokens similar to coins of the United States or any foreign nation; section 4 provides for the forfeiture of such counterfeit securities and coins; and section 5 provides for search warrants to aid in the discovery of such counterfeit moneys, securities, dies, or plates.

Section 5463, Revised Statutes, provides a penalty for forging or counterfeiting "a money order or postal note issued by or under the direction of the Post-Office Department of the United States, or of any foreign country, and payable in the United States." Section 5465, Revised Statutes, denounces a penalty against all "who forge or counterfeit, or knowingly utter or use, any forged or counterfeited postage stamp of any foreign government." Sections 5421 and 5422, Revised Statutes, denounce penalties against every persons who forges or counterfeits any “deed, power of attorney, order, certificate, receipt, or other writing, for the purpose of receiving from the United States or any of their officers any sum of money;" or utters or transmits or presents at any office or to any officer of the Government of the United States any of the aforesaid writings knowing the same to be false, or who "knowingly and with intent to defraud the United States has any of the aforesaid writings in his possession for the purpose of obtaining money from the United States or any of their officers."

* **

*

**

Section 5479 deals with the forging or counterfeiting of any "bond, deed, proposal, guarantee, security, official bond, public record, or other writing, for the purpose of defrauding the United States."

It is clear that under these last three sections the counterfeiting of an official seal of a foreign consul, at least if attached to any writing, might, under some circumstances, namely, when done for the purpose of obtaining money from the

United States or for the purpose of presenting the same at any office or to any officer of the United States Government, come within the prohibitions of the criminal law, but the gravamen of the offense would in this case be the defrauding of the United States and not the forging or counterfeiting of an official seal.

In fact, the only provision in the Federal statutes providing a penalty for counterfeiting any seal, domestic or foreign, as such, appears to be section 5419, Revised Statutes, which reads as follows:

"Every person who forges the signature of any judge, register, or other officer of any court of the United States, or of any Territory thereof, or forges or counterfeits the seal of any such court, or knowingly concurs in using any such forged or counterfeit signature or seal, for the purpose of authenticating any proceeding or document, or tenders in evidence any such proceeding or document with a false or counterfeit signature of any such judge, register, or other officer, or a false or counterfeit seal of the court, subscribed or attached thereto, knowing such signature or seal to be false or counterfeit, shall be fined not less than five hundred dollars and not more than five thousand dollars, and be imprisoned not more than five years."

It will be observed that this section merely covers the crime of counterfeiting the seal of any court and does not cover the seals of the various executive officers of the United States or even the great seal of the United States itself.

It seems very clear, therefore, that the absence of federal legislation penalizing the counterfeiting of the seals of foreign consular officers is simply due to the fact that the necessity for providing for the counterfeiting of seals in general, whether of officers of the United States or of foreign governments, has never been brought to the attention of Congress. The power of Congress to protect such consular seals rests on the same basis as its power to prevent the counterfeiting of foreign coins or securities; that is to say, it rests upon the right and duty of the United States Government to which, under the Constitution, all the national affairs have been confided, to perform its international obligation of using "due diligence to prevent a wrong being done within its own dominion to another nation with which it is at peace.-United States v. Arjona, 1887, 129 U. S., 479; United tSates v. White, 1886, 27 Fed. Rep., 200.)”

The expediency exercised in this power is of course a matter of policy for the determination of Congress, but in considering whether any steps should be taken on the part of the department to secure reciprocal legislation upon the subject it would seem to be worth noting; that such legislation would be in entire harmony with the general policy of the United States as exhibited in the legislation referred to in the memorandum; that it would certainly do no harm and would be likely to cause very little trouble to the prosecuting officers and courts of the United States, while, on the other hand, the securing of such legislation in Italy, in view of the large immigration from that country and the grave danger demonstrated by the incidents which have raised the present question (that the seal of American consular officers in Italy will be counterfeited) and the damage which may result therefrom, seem to indicate that the United States, in entering into an arrangement looking toward reciprocal legislation for the protection of consular seals, would be gaining a substantial advantage in return for a harmless concession.

J. B. S.

No. 246.]

Ambassador White to the Secretary of State.

AMERICAN EMBASSY, Rome, August 14, 1906. SIR: With reference to your instruction No. 106, of 7th ultimo, I have the honor to inform you that Mr. Hitt had a conversation on the 28th ultimo relative to the counterfeiting of our consular seal at Palermo with the under secretary of foreign affairs, who said that the procurator-general had appealed the case, and that he quite concurred in your suggestion that if it should turn out that the laws of Italy contain no provision on the subject, an exchange of notes between that Government and ours with a view to

an agreement on the part of both Governments to use all proper efforts to secure legislation would be desirable. He added that a note would shortly be sent to Mr. Hitt in reply to mine of the 9th of June, but so far it has not been received.

Yesterday, in the course of an interview with the under secretary, I mentioned the matter and he repeated substantially what he had said to Mr. Hitt on the 28th ultimo, adding, however, that as it is quite possible that the court of appeals may discover some law of this country bearing upon the subject, he thought it better that the suggested exchange of notes between the two Governments should not take place until after the judgment of that court had been pronounced.

Signor Pompilj said that the note of which he had spoken to Mr. Hitt as about to be sent had been delayed owing to the necessity of its passage through several departments, but that it would contain nothing beyond what he had already said to Mr. Hitt and to me.

I have read with interest the memorandum which accompanied your instruction No. 106 and I entirely agree with the views set forth in its final paragraph.

I have, etc.,

HENRY WHITE.

The Acting Secretary of State to Ambassador White.

No. 130.]

DEPARTMENT OF STATE, Washington, September 11, 1906.

SIR: I have to acknowledge the receipt of your No. 246, of the 14th ultimo, in which with reference to the counterfeiting of the United States consular seal at Palermo you report that the case has been appealed by the Italian attorney-general.

The department approves your action in the matter.

In accordance with the suggestion of the foreign office, the department will await the decision of the Italian court of appeals before proceeding to an exchange of notes on the subject.

I am, etc.,

ROBERT BACON.

SEAMEN DESERTING FROM FOREIGN VESSELS IN THE

PHILIPPINES.

The Acting Secretary of State to the Italian Chargé.

DEPARTMENT OF STATE,
Washington, March 7, 1906.

SIR: I have the honor to inclose herewith, for the information of your Government, a copy of an enactment by the Philippine Commission providing for the arrest, examination, and return of seamen deserting from foreign vessels.

Accept, etc.,

ROBERT BACON.

"A like note was sent to all the representatives of foreign maritime countries at Washington.

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