of resorting to the laws of a foreign country for the definition, in whole or in part, of a statutory crime seems to be obvious, and I do not agree that it may be done."
The construction of the statute adopted by the majority in Biddle v. Luvisch, supra, seems to me clearly to violate the rule that a penal statute must be strictly construed and if it creates a new crime must clearly state the acts denounced. United States v. Ninety-Nine Diamonds, 8 Cir., 139 F. 961, 2 L.R.A., N.S., 185; Todd v. United States, 158 U.S. 278, 15 S. Ct. 889, 39 L. Ed. 982; United States v. Wiltberger, 18 U.S. 76, 5 Wheat. 76, 5 L. Ed. 37. Furthermore it runs directly counter to the rule that, although a person is presumed to know the laws of the country in which he resides, there is no presumption that he knows the law of a foreign state or country. Finch v. Mansfield, 97 Mass. 89; Stedman v. Davis, 93 N.Y. 32. This becomes clear when we recall that under the view taken by the majority in Biddle v. Luvisch, supra, an individual, in order to determine whether his action in illustrating a foreign government issue is criminal, must look not only to the law of his own country but also to the law of the foreign country involved, even though the court itself is not required to take judicial notice of the latter and it may be in a foreign language, the meaning of which is totally unknown to him. Under this view questions of interpretation would inevitably arise. There would of course be no difficulty in the case of English speaking peoples and not much in the case of those who speak the Romance languages, since both the words "obligation" and "security" are directly derived from Latin. But imagine the difficulty and doubt which would arise in deciding whether given words in the statutes of China, Japan, or Siam, of Nepal, Tibet or Afghanistan, of Persia, Iraq or Turkey or even of Russia, Hungary or Finland are the equivalent of the words "obligation" or "security" in English. Yet each of the countries mentioned issues postage stamps.
For the reasons which I have stated I believe that the opinion announced by a divided court in Biddle v. Luvisch, supra, places an errroneous construction upon Section 161 of the Criminal Code. Clearly it is not controlling authority in the Third Circuit and I find myself unable to follow its reasoning. Furthermore I do not think that the doctrine of state decisis may be invoked to perpetuate this clearly erroneous construction of the statute by a divided court. In addition it should be pointed out that in the case now before me there has been no averment by the Government that the laws of Switzerland declare its postage stamps to be obligations or securities of the government or that the laws of Great Britain make a similar declaration with regard to its revenue stamps or those of its European colonies. Nor was any effort made to prove these facts although I granted the Government a continuance of the hearing to permit the production of evidence on those specific points. The Government's failure to offer evidence on these points must be construed to be an admission either that no such Swiss or British Statutes exist or that the construction placed upon Section 161 of the Criminal Code by the majority in Biddle v. Luvisch, supra, was erroneous. Upon either view that ruling is not in conflict with my conclusion in this case.
Finally I think it should be noted that my construction of Section 161 does not give countenance to the forging or counterfeiting of foreign stamps since, as we have seen, another section of the Criminal Code, Section 220, 18 U.S.C. § 349, 18 U.S.C.A. § 349, expressly makes such conduct criminal. That section, as originally enacted, provided that "Whoever shall forge, or counterfeit, or knowingly utter or use any forged or counterfeited postage stamp of any foreign government, shall be fined not more than $500, or imprisoned not more than five years, or both." The section was amended by the Act of May 26, 1926, 44 Stat. 653, 18 U.S.C.A. § 349, to include revenue stamps of foreign governments as well. The latter act, which was passed after the decision in Biddle v. Luvisch, supra, is further evidence, if any were needed, that the Congress did not intend to include either postage or revenue stamps in the language used in Section 161.
A decree may be entered dismissing the libel and directing the return of the seized book to the claimant.
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