This essay, which presents in a clear light the present state of European
legislation on this subject, is particularly interesting, as it shows in the
German legislation the same defects which the German government has pointed
out in the legislation of Belgium.
It is now stated that the German government has addressed similar notes to
the governments of Holland and Luxembourg.
Here it is authoritatively stated that the report that the Russian government
had supported the remonstrance of Germany at Brussels is entirely without
foundation.
[Inclosure 1 in No.
109.—Translation.]
study of the problem of international
law.
The German note to Belgium of the 3d
of February considered from a juridical point of
view. By Prof. J. Horning, of Geneva.
From the point of view of present international law it is impossible to
agree with Germany in the remonstrances which she has just addressed to
Belgium.
The government of Berlin reproaches that of Brussels with not having in
its laws sufficient directions for the repression of offenses committed
on Belgian territory against the peace of neighboring states, that is to
say, against the law of nations.
[Page 1063]
In order to establish this accusation it would be necessary that Belgian
legislation concerning this category of offenses should he less explicit
and less severe than that of other civilized states, and particularly
less so than that of Germany herself, since it is Germany who
complains.
Now it will he seen that Belgian legislation on offenses against
international law is nearly identical with that of the German Empire. It
is even more severe; and, besides, in comparison with other European
legislations, it is found to be one of the most complete and most
rigorous.
In the first place the Belgian law and the German law are almost the same
on this point. In fact, if the Belgian laws of 1852 and of 1858 are
taken on the one hand, and the penal code of the German Empire (1870) on
the other, these texts are seen to provide for the same offenses.
The Belgian law of 1852 is intended to punish offenses against the chiefs
of foreign governments; the much more general law of 1858 deals with
crimes and offenses which violate international relations. These two
laws have been upheld by the Belgian penal code of 1867, which in its
article 123, punishes only those who by hostile actions shall have
exposed the state to hostilities on the part of a foreign power. The
penal code of the German Empire provides for offenses against foreign
states in its sections 102, 103, and 104.
These different laws, therefore, punish exactly the same offenses,
namely, attempts against the life of the chief of a foreign government
or against the form of that government, the act of publicly exciting the
subjects of such government to arm themselves against it, offenses
against such government and offenses and acts of violence against
foreign diplomatic agents. As to the conditions which constitute an
offense, the Belgian law of 1858 punishes an attempt against the person
of the chief of a government as soon as criminal intention has been
shown by external acts, forming a commencement of execution. It punishes
a plot against the person of the chief of a foreign government, such
plot having for its object to destroy or change the form of that
government, or to excite the inhabitants to arm themselves against it,
as soon as the plot has been followed by an act destined to prepare its
execution. The German code says that every act, (attempts against the
prince, constitution, &c.,) the object of which is to lead directly
to the execution of the design which has been formed, ought to be
considered as an enterprise constituting the crime of high treason.
Moreover, while the Belgian laws make no restriction here, the German
code demands for the punishment of offenses in question the complaint of
the government concerned and reciprocity in favor of Germany.
Therefore the German code says no more about the matter than the Belgian
laws. It makes no better provision than they do for cases such as those
of which the Berlin cabinet complains, viz, simple incitements to
disobedience or the act of having simply proposed to a third party the
undertaking of an assassination, when such proposition has been
immediately rejected. There is in the latter case neither plot,
preliminary act, nor attempt. The German code does not even punish an
act of this kind when committed against the Emperor on German
territory.*
Consequently Germany has not succeeded in sustaining that Belgium does
not possess a legislation adequate to offenses against the law of
nations. One country cannot require another to do more than it does
itself.
The repression by each state of offenses committed on its territory
against international law, is now a matter of general legislation. This
is a great progress, for complications, or even war, may thus be
avoided.
But no country goes farther, or even so far, as Belgium.
Thus our federal penal code of 1853, articles 41 to 44, punishes the
following offenses: The act of violating a foreign territory, or of
committing any other act contrary to the law of nations; outrage,
against a foreign nation or its sovereign, or a foreign government;
outrage against, or ill-treatment of, the representative of a foreign
nation. It must be observed, besides, that our penal code, like that of
Germany, requires, in order that an outrage against a foreign government
may be prosecuted, the demand of that government and the reciprocity
toward the confederation.
The Belgian law, we have said, does not mention these conditions. Article
37, quoted by Count Perponcher, has no reference to the subject under
discussion, since it relates to offenses against the security of the
confederation abroad. He makes there a pure and simple error.
Other European legislations do not go farther than that of Belgium. Thus
the Austrian penal code (1852) is almost identical with the German code;
it requires reciprocity in the same way. But above all, the French penal
code of 1810, in articles 84 and 85, does not punish offenses against
international law, except when they result in injury to France or to
Frenchmen: “Whoever, by hostile actions, shall have exposed the state to
a declaration of war, &c.; whoever shall have exposed Frenchmen to
reprisals, &c.” Here France is evidently behind other European
states. The
[Page 1064]
Italian penal
code (1859) reproduces in the first place the dispositions of the French
code, and then punishes in every case plots against the life of the
chief of a foreign government. Lastly, English law and the laws of the
American Union only punish offenses against diplomatic agents. (We have
purposely not mentioned the repression of piracy, which belongs to
another kind of idea.)
It is seen then by these references that Belgian legislation is, of all
those of Europe, the most explicit and the most complete in that which
concerns offenses against the law of nations. Consequently, from a
juridicial point of view, Germany has no ground for reproaching her with
not being on a level with the present general legislation.*
But, in conclusion, I wish to reserve entirely the political question. It
is evident that the clergy and the Catholics of Belgium have exposed
themselves to the remonstrances of Germany by meddling in the internal
affairs of that country in order to excite the Prussian clergy to
disobedience. Similar acts are not punished when they are committed on a
foreign territory, but they are none the less imprudent and culpable.
They clearly prove that ultramontanism places in peril the existence
even of liberal states. The partisans of this doctrine see absolutely
nothing but ecclesiastical interests, and sacrifice to them everything
else. The ultramontane party of Belgium, in particular, shows, by its
actions, not only that it has no respect for order and legality in
foreign states, but even that it has no patriotism. In fact, in order to
satisfy its clerical hatred, it does not scruple to expose Belgium to
serious complications. It has very little concern for the welfare of the
country, so long as it serves, the interests of the church. If,
therefore, we cannot blame the Belgian government, we blame without
reserve the imprudent and anti-patriotic conduct of those who have
placed it in its present difficult position.
