of the said publication on the part of the office of the public pros ecutor. Whereas, since the prefectoral decrees become binding only after they have been published or posted in the customary form, this publication can be established by any means of proof; Whereas, in the present case, the impugned judgment deduced the proof of publication from the existence of the draft of a poster produced by the office of the public prosecutor, as coming from the archives of the commune of Sens, and, on the other hand, from the certificate of the Mayor of this commune, attesting that the said decree. was there posted; Whereas, in applying thus to presumptions which it has considered precise and harmonious, the proof of the disputed publication, the Court has only made legitimate use of a sovereign power of evaluation, which is beyond the control of the Court of Cassation. On the second plea, based upon the violation of Articles 153, 154, 155, 176 and 189, of the Code of Criminal Examination, to the effect. that the impugned judgment is based upon information which it did not draw from the examination and the pleadings, and which could not be discussed in the presence of both parties: Whereas, the plea is deficient in fact; whereas, if the judgment retained, for the purpose of establishing the publication of the decree. certain statements which would have been the subject of a report. drawn up by the police commissioner subsequent to the judgment of the Police Court, these statements were already included in the judgment. of this Court and were discussed in the presence of both parties. On a third plea, based upon the violation and the false interpretation of the principles of international law, to the effect that the impugned judgment condemned the petitioner for having flown the Pontifical flag in contravention of the Prefectoral Decree of February 17, 1894, while, on the one hand, the exception provided by this decree evidently included the flags of international persons, Article 2 which provided for this exception being not a penal provision, but a provision derogatory to a penal provision, the restrictive interpretation of which did not appear and the expression "flags of foreign national colors" having on the contrary to be interpreted with the breadth recognized to it by international courtesy and demanded by the good relations between persons of international law; while, on the other hand, the flag flown by the petitioner is the Pontifical flag; while the Pope continues to be a moral person of international law and while neither the rupture of diplomatic relations which occurred on July 29, 1904, nor the Law of Separation of December 19, 1905, have deprived him of this capacity with regard to the French Republic: Whereas, the Decree of the Prefect of Yonne of February 17, 1894, of which it has made application, interdicts the displaying and the bearing of flags on a public street; whereas, it excepts from this measure only the flags of French or foreign national colors and those serving as the insignia of authorized or approved societies; whereas, this precise provision does not admit of any interpretation; 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 the aforementioned decree: whereas, his flag can not, therefore, be considered as the insignia of an authorized or approved society; Whereas, under these circumstances, since the contravention is characterized, it is not incumbent upon the Court to determine whether the Pope continues to be a person of international law or whether he has been deprived of this capacity, either by the rupture of diplomatic relations or by the Law of Separation of Churches and State.19 Wherefrom it follows that the plea could not be supported: Rejects the appeal from the judgment of the Police Court of Sens of December 18, 1912; 19 For a careful statement of the legal status of the Papacy, see Municipality of Ponce v. Roman Catholic Apostolic Church in Porto Rico, 210 U. S. 296, 28 Sup. Ct. 737, 52 L. Ed. 1068 (1908). Whether the Holy See is or is not a state in international law, the Pope is still recognized as a sovereign by many of the powers of the world, which receive from him diplomatic representatives in the person of either a nuncio or a legate, or possibly in some other capacity, and which powers also accredit to him certain diplomatic representatives. "With all such arrangements this government abstains from interference or criticism. It is the right of those powers to determine such questions for themselves; and when one of them, at whose court this government has a representative, receives a representative from the Pope, of higher rank than that of the representative of the United States, it becomes the duty of the latter to observe toward the Pope's representative the same courtesies and formality of the first visit, prescribed by the conventional rules of intercourse and ceremonial, and of the precedence of diplomatic agents, which have been adopted, and almost invariably acted upon, for the last sixty years." Mr. Fish, Secretary of State, to Mr. Cushing, Minister to Spain, June 4, 1875. Foreign Relations of the United States, 1875, pp. 1119, 1120 (John Bassett Moore, A Digest of International Law, vol. 1, p. 39 [1906]). It appears that in the spring of 1916, after Germany had extended its submarine operations to the Mediterranean, the Pope (Benedict XV) appointed new Apostolic Nuncios to Belgium, Colombia and the Argentine Republic. In order that they might arrive safely at their respective posts, the Holy See opened negotiations with Germany. The imperial authorities declared it to be impossible to guarantee security to the diplomatic agents of the Vatican if they traveled on neutral ships, as these were for one reason or other exposed to the same danger as enemy vessels. The only way was, in their opinion, to display the papal flag from the ship transporting the papal diplomats, and on this condition the German government engaged to respect the ship. Thereupon the Pope secured the consent of Spain, the most Catholic of the then neutral countries, to convey the Nuncios on one of its ships, which should fly the papal flag. In June, 1916, the Holy See notified the powers that the papal flag, white and yellow, which had not appeared on the seas since 1870, would fly from the masthead of the steamship Nuncius, bound from Cadiz to Buenos Aires. Revue générale de droit internationale public, vol. 23 (1916) 606–608. Condemns the plaintiff to the fine and to the costs, under penalty of imprisonment; Fixes at the minimum the extent of the duration of imprisonment in default of payment. Thus judged and pronounced, et cetera. Criminal Chamber. SECTION 2.-RECOGNITION OF STATES AND OF GOVERNMENTS CITY OF BERNE (in Switzerland) v. BANK OF ENGLAND. (High Court of Chancery, 1804. 9 Ves. Jr. 347.) Mr. Romilly, for the Plaintiff, on behalf of himself and the other members of the Common Council Chamber of the city of Berne in Switzerland, and the Burghers and Citizens of that city, moved, that the Governor and Company of the Bank of England and the South Sea Company may be restrained from permitting a transfer of, and the trustees from transferring, certain funds, standing in their names under a purchase by the old Government of Berne before the Revolution. Mr. Piggott and Mr. Wooddenson, for the Bank of England, and Mr. Mansfield and Mr. Steele, for the Trustees, opposed the motion; on the ground, that the existing Government of Switzerland, not being acknowledged by the Government of this Country could not be noticed by the Court. The LORD CHANCELLOR [Lord ELDON] would not make the Order; observing, that he was much struck with the objection; and it was extremely difficult to say, a judicial Court can take notice of a Government, never authorized by the Government of the Country, in which that court sits; and, whether the Foreign Government is recognized, or not, is matter of public notoriety. JONES v. GARCIA DEL RIO. (High Court of Chancery, 1823. Turn. & R. 296.) This was a bill filed by three persons, on behalf of themselves and all other the holders of scrip or shares of the Peruvian loan, against John Garcia del Rio and James Paroissien, who were stated by the bill to have come over from South America in the character of envoys and ministers, from a government styling itself the Peruvian government, to this country, and to have represented themselves to be empowered to contract for a loan for the use of the said government, and against Thomas Kinder, the younger, the contracter for the loan, and William Everett and others, the bankers to whom the subscriptions for the loan were paid. The bill prayed, that an account might be taken of the monies which had been advanced and paid by the plaintiffs and the other holders of scrip or shares of the loan who should come in and claim the benefit of the suit, and that the plaintiffs and such other holders as aforesaid might be declared entitled to have what they had so paid returned to them, and to have the monies paid to and remaining in the hands of the defendants the bankers applied for that purpose, and that an account of such monies might be taken, and that the same might be applied accordingly, and that in the meantime the defendants the bankers might be restrained from parting with such monies, and the other defendants from receiving or disposing of the same. ** * The defendant Kinder by his answer admitted, that the Peruvian government had not been acknowledged as an independent state by the government of Great Britain; but he stated that there was in fact such a government in South America, and that it was an assumed government in opposition to the former government of Spain in that country, and had been formed by a revolution of the people in Peru, who had driven out the Spanish viceroy and established a government of their own; and he therefore denied that Peru still remained a province or dependency of the kingdom of Spain, and insisted that it was independent of Spain. The defendant further stated, that he was a holder of scrip on his own private account, and that he believed that the plaintiffs were not authorized by any of the other holders of scrip to institute the suit on their behalf, and that many of the other holders, if not all of them, were content to abide by their contracts to purchase such shares of the loan as they had respectively contracted to purchase, and were either ignorant of or disapproved the suit. * * * The LORD CHANCELLOR [ELDON].20 We all know that Peru was part of the dominions of Spain, and that Spain and this country are at peace, and that this country has not acknowledged the government of Peru; I want to know, whether, supposing Peru to be so far absolved from the government of Spain that it never can be attached to it again, the King's Courts will interfere at all while the Peruvian government is not acknowledged by the government of this country. What right have I, as the King's Judge, to interfere upon the subject of a contract with a country which he does not recognize? Another question is, whether, if individuals in this country choose to advance their money for the purpose of assisting a colony opposed to its parent state, that parent state being at peace with this country, the Courts of Justice here will assist them to recover their money, and will not leave them to get it as they can? Practically speaking great inconvenience may result from these transactions, for if at any future time the government of this country shall be disposed to say, Peru shall still continue annexed to Spain, these creditors will immediately come 20 The statement of facts is abridged and part of the opinion is omitted. to the government and say, do not accede to the arrangement unless Spain will pay us what we have advanced to the colony. The cases where one party files a bill on behalf of himself and others are cases where the others have a choice between that and nothing, but how can it be managed where some parties are not dissatisfied, and are disposed to abide by the contract? TAYLOR v. BARCLAY. (High Court of Chancery, 1828. 2 Sim. 213.) Bill for a discovery. The plaintiffs purchased certain certificates of obligations, of the Government of the Federal Republic of Central America from Powles & Co., who directed him to pay over the installments to a banking house for the account and to the credit of the defendants, who publicly announced themselves as agents of said Republic of Central America. Later the plaintiff discovered a secret partnership existing between Powles & Co. and the defendants. It was charged that the purchasers of the certificates were induced to take them at a higher price than if they had known the real nature of the relationship existing between Powles & Co. and the defendants. To prevent a demurrer to the bill it was falsely alleged that the Government of Central America, which was a revolted colony of Spain, was a sovereign and independent state recognized and treated as such by Great Britain.21 The VICE CHANCELLOR [SIR L. SHADWELL]. In consequence of the arguments in this case I have had communication with the Foreign Office, and I am authorized to state that the Federal Republic of Central America has not been recognized as an independent Government by the Government of this country. It appears to me that, when it is stated, in the bill, that this Republic was, and still is a sovereign and independent State, recognized and treated as such by His Majesty the King of these realms, it must have been meant that it has been recognized by the Government of this country as an independent State altogether; and, inasmuch as I conceive it is the duty of the Judge in every Court to take notice of public matters which affect the Government of the country, I conceive that, notwithstanding there is this averment in the bill, I am bound to take the fact as it really exists, and not as it is averred to be; and then it does not seem to me that there is any substantial distinction between the present case and the case in which I formerly gave judgment, that is, the case of Thompson v. Powles. I observe that, in this case, the bill is filed for discovery only; but it does not appear to me that the circumstance that, in one case, discovery alone is sought, at all tends to introduce a distinction in the 21 The statement of facts is rewritten. |