this sovereignty, and whereas, up to the same period it is just as certain that this flag enjoyed the exception provided for by the aforementioned decree;

Whereas, the law of December 9, 1905, which regulates a question of internal politics, has not had and could not have the effect of modifying the status previously acquired by the Holy See, and still less the effect of suppressing ipso facto the papacy and the character of sovereign attached to its representative;

Whereas, the latter, moreover, has not lost this character with regard to persons who have continued to be officially represented before it, and before whom it has not ceased to be officially represented; Whereas, the suppression of diplomatic relations between France and the Papacy, which intervened after this law, cannot have any other consequences than those which would result from the suppression and interruption of such relations between France and any other foreign Power, a suppression or interruption which would not suffice to cause this Power to disappear from among the nations and to cause the colors which belong to it to be considered in future as non-existent, and, in consequence, interdicted;

Whereas, consequently, the Pontifical flag should continue to be included among the foreign flags enjoying the exception provided for by Article 2 of the Prefectoral Decree of February 16, 1894, and whereas, in displaying it the accused could not be guilty of violating the said decree;

For these reasons:

Dismisses the complaint against X. and acquits him without costs. From this judgment an appeal was taken to the Court of Cassation, which tribunal, on May 5, 1911, delivered the following judgment:

THE COURT, having heard Maitre La Borde, councillor, in his report, Maitre Félix Bonnet, practicing attorney, in his statements, and M. Baudouin, attorney general, in his motions:

In view of the eighteen appeals made by the office of the public prosecutor before the Police Court of Mans from eighteen judgments, dated July 26, 1909, by virtue of which this Court pronounced the release of: * * *

Whereas, the judgments, rendered on the same day, are conceived in the same terms and impugned for the same reasons;

Joining the appeals and rendering judgment by one sole decree; In view of the petition of the office of the public prosecutor before the Police Court of Mans;

In view of the Decree of the Prefect of La Sarthe of February 16, 1894, reading as follows:

"Article 1. The displaying and the bearing of flags, either on public streets or in buildings, grounds and places, freely open to the public, are interdicted in the Department of La Sarthe.

SCOTT INT.LAW

"Article 2. The flags of France or foreign national colors and those serving as insignia for authorized or approved societies are excepted from this measure;"

In view also of Article 471, No. 15, of the Penal Code:

Whereas, the Pontifical flag of white and yellow, is no longer a flag of foreign national colors; whereas, in fact, the sovereignty of which it was formerly the symbol, has ceased to exist as a result of the reunion of the Pontifical states with the Kingdom of Italy;

Whereas, on the other hand, the Pope does not represent a society in the sense of Article 2 of the aforementioned decree; whereas, his flag cannot, therefore, be considered as the insignia of an authorized or approved society;

Whereas, it is established by the impugned judgments that the accused displayed upon a public street flags of white and yellow; whereas, their release is based on the fact that these flags were included in the exception pronounced by Article 2 of the Decree which served as a basis of the prosecutions;

Whereas, in deciding thus, the police judge has falsely applied this decree and violated Article 471, No. 15, of the Penal Code;

For these reasons,

Quashes and annuls the eighteen judgments of the Police Court of Mans, mentioned at the beginning of the present decree; and refers the cases and the accused for a new decision to the Police Court of La Flèche, designated for this purpose by special deliberation held in the Council Chamber.

Orders, et cetera.

Thus judged and pronounced, et cetera. Criminal Chamber.18

18 The Court of Appeal of La Flèche, to which the case was sent for decision by the Court of Cassation, in accordance with its opinion reversed the decision. It did not, however, decide the question upon its merits. It found as a fact, that the prefect's decree had not been published, as was required by law, and that because of the lack of publication, the defendants were not guilty of its violation.

For the text of this decision see Professor Gidel's article in Revue Générale de Droit International Public, Tome XVIII (1911) pp. 597, 598, note. The international status of the Papacy has given rise to much discussion and controversy. For literature on the subject see also Donnedieu de Vabres, "La Souveraineté du Pape et la Séparation des Eglises et de l'Etat," ibid., Tome XXI (1914) p. 339; "Saint-Siège-Guerre de 1914-Emploi international du drapeau de la Papauté. Transport des représentants diplomatiques du Saint-Siège sur un navire battant pavillon pontifical," Chronique des faits internationaux, ibid., Tome XXIII (1916) p. 606.

APPEAL OF CHESNELONG.

(Court of Cassation of France, 1913. 118 Bulletin des Arrêts de la Cour de Cassation Rendus en Matière Criminelle, 557.)

On a similar statement of facts,

The Police Court of Sens, sitting in appeal, has rendered at the public hearing of December 18, 1912, the judgment, the tenor of which is as follows:

On the matter of publicity: Whereas, the Prefectoral Decree of February 17, 1894, could be executory at Sens only on condition that it was published there;

Whereas, since this decree does not contain the injunction that it be published, and since the fact of its publication is formally denied, it was incumbent upon the office of the public prosecutor to present proof to that effect;

Whereas, its insertion in the collection of the Administrative Records of the Prefecture of Yonne, its entry at its date upon the Register of the Prefectoral Decrees preserved in the office of the Mayor of Sens, the production of a poster printed at Auxerre, in February, 1894, and the certificate of posting issued by the Mayor of Sens, prove that the said decree was published in the customary form;

Whereas, the line of reasoning which consists of maintaining that the insertion of a decree in the Collection of Administrative Records of the Department could not be considered as peremptory, the entry in the Mayor's office upon the Register of Prefectoral Decrees, and its printing in the form of posters tend only to prove that the decree was brought to the knowledge of the Mayor;

Whereas, since this result was attained by the execution of the first of these formalities, the two others have no other purpose than that of bringing the provisions of the decree to the knowledge of all;

Whereas, the insertion of the Decree of February 17, 1894, into the Register of Decrees, both at the Prefecture and at the office of the Mayor of Sens, is not disputed;

Whereas, it was not incumbent upon the office of the public prosecutor to prove that the poster produced at the pleadings is taken from the archives of the Mayor's office, its production having for sole object the establishment of the fact that posters were indeed printed in the principal town of the Department in February 1894, for the purpose of publishing the Prefectoral Decree;

Whereas, it would be inadmissible to consider that posters printed by the direction of the Prefectoral Administration did not reach their ordinary destination, that is to say, were not transmitted to all the Mayors of the Department and that the latter, conformable to the established customs, did not cause them to be posted in the places intended for that purpose;

Whereas, the certificate of posting is based not upon the personal recollection of the Mayor of Sens, but upon the administrative customs regarding the publication of Prefectoral Decrees at Sens;

Whereas, finally, no material proof of the posting of a poster of eighteen years ago can be demanded, lest all decrees posted a number of years ago should be considered as inexecutable and bereft of sanction;

Whereas, M. Chesnelong maintains, to no avail, that "all of these alleged presumptions could not countervail the decisive proof to the contrary resulting from the fact that the Decree of February 17, 1894, is not mentioned upon the posting Register of the office of the Mayor of Sens";

Whereas, in fact no such posting Register exists at Sens, but only a register mentioning "all publications made either with the accompaniment of a drum or with that of a trumpet," which, consequently, cannot mention a decree intended to be published by means of posting; Whereas, this intention results incontestably from the fact that the decree was printed in the form of posters.

On the Application of the Decree of February 17, 1894, to the facts of the Arraignment:

Whereas in penal matters restrictive interpretation is necessary; Whereas, the Decree of February 17, 1894, interdicts in a general way the displaying and the bearing of flags; whereas, no provision of this decree deals especially, as is asserted by the appellant, with the exhibition of the red flag, or indicates that it constitutes a momentary measure intended to terminate with the circumstances that motivated it;

Whereas, the said decree excepts from the interdiction only "the flags of the French or foreign national colors and those serving as the insignia of authorized or approved societies";

Whereas, the flag of white and yellow, the national emblem of the former Pontifical States, cannot be included in this exception; whereas, in fact, these States have ceased to exist as a result of their annexation to the Kingdom of Italy; whereas, even if, contrary to the principles of international law, an extensive interpretation, placing the personal colors of a sovereign upon the same basis as those of foreign countries, were admitted, it would still be necessary, contrary to historical truth, to regard the white and yellow emblem as the personal flag of the Pope, and to attribute to the latter the character of a sovereign;

Whereas, there is no doubt that since the disappearance of the Pontifical States in September, 1870, the Pope has lost the usual attributes of sovereignty, and whereas, a Pontifical State no longer exists;

Whereas, the Papacy does in fact no longer possess either territory, an army or subjects; whereas, it no longer possesses the right of civil

jurisdiction, and whereas, all matters pertaining to the civil status of the inhabitants of the Vatican come within the province of the civil authorities of the Kingdom of Italy;

Whereas, the Law of Guarantees has not conferred upon the Pope the sovereign right of international law, which alone confers upon those invested therewith the quality which this right attributes to the real sovereigns;

Whereas, according to the terms of the Decree of October 9, 1870, and of the Law of Guarantees of May 13, 1871, the Pope has only the usufruct of the Pontifical residences which, save certain restrictions relative to the "dignity, inviolability, and personal prerogatives" of the Pope in his capacity as Chief of the Catholic Church, remain subject to the Italian laws;

Whereas, the Law of Guarantees does not even admit the extraterritoriality of the places occupied by the Pope;

Whereas, if the internal legislation of the Italian States confers upon the Pope certain personal privileges which ordinarily form the appenage of sovereignty, particularly the right of negative and passive legation, which he exercises under quite exceptional conditions, his representatives not being real diplomatic agents and concordats not being comparable to the treaties between nations, it remains none the less true that from the international point of view the Pope must no longer be considered as a Chief of State;

Whereas, under these circumstances, the Pontifical flag, in so far as it would be the symbol of a State or the insignia of a Chief of State, has ceased to exist, and whereas, any element which might remove the said emblem from the interdiction formulated by the Prefectoral Decree, which alone might make it either a national flag or the insignia of an authorized or recognized society, is totally lacking; For these reasons,

Adhering for the rest to the reasons of the first judge,

Confirms the judgment of the Police Court of Sens, under date of July 4, 1912, from which appeal has been made, declares that this judgment shall be given its full and complete execution, and condemns the appellant to all the costs of the action.

From this judgment an appeal was taken to the Court of Cassation, which tribunal, on June 12, 1913, delivered the following judg

ment:

THE COURT, having heard the councillor Georges Lecherbonnier, in his report, Maitre Mihura, attorney, in his statements, and the attorney general Rambaud, in his motions;

On the first plea, based upon the violation of Articles 471, § 15, of the Penal Code, and 7 of the Law of April 20, 1810, to the effect that the impugned judgment declared executory a prefectoral decree, the publication of which was disputed, without the adduction of the proof