Counsellors at law, employed by envoyees or consuls of foreign gov ernments in this country, are of course exempted from that restriction.

D.-OUTLINE OF THE FOLLOWING CHAPTERS.

We shall have to quote now from the French and German penal codes those statutes on "crimes against the safety of the state " mentioned in CI a and b of this chapter, and appliable (according to section 7 of the French code of criminal proceedings and according to sections 4, 1 of the German penal code) to foreigners in foreign country.

We shall review first French and then German law, and we shall, for the sake of comparison, quote German laws on "acts treacherous to the country, though they are not appliable to foreigners' foreign acts except when warranting the "usage of war."

We shall review French and German law with special regard to their effect on American citizens and with special regard to our indispensable theory of the "privilege of priority on the part of the state where the act was committed." And, above all, we shall have carefully to investigate if the right of justified self-defense on the part of the legislat ing power were kept within fair limits or not.

CHAPTER IV.

FRENCH LAW ON CRIMES AGAINST THE STATE AND ITS EFFECT ON AMERICAN CITIZENS.

A.-CRIMES AGAINST THE EXTERIOR SAFETY OF THE STATE.

In the French penal code we read, under the headline of "Crimes against the exterior safety of the state," as follows:

SEC. 75. A Frenchman who shall bear arms against France is to be punished with death.

SEC. 76. Every one who shall engage in machinations or intercourse with foreign powers or their agents for the purpose of entreating them to commit hostilities or to undertake war against France, or to furnish them with the means therefor, is to be punished with death, even if a war did not outbreak.

SEC. 77. The same punishment shall be executed for intercourse with the enemy for the purpose of facilitating to him the entry in French territory, or of delivering up to him towns, fortresses, plans, harbors, magazines, arsenals, vessels, or of furnishing him with troops, money, supplies, or of aiding him by undermining the loyalty of the army of the country.

SEC. 78. If the intercourse with subjects of an inimical power, though not aiming such crimes as described in section 77, results in furnishing the enemy with informations obnoxious to the military or political situation of France or her allies, the punishment shall be detention, without prejudice to the statutes relating to agreement for espionage, should such be the case.

SEC. 79. It makes no difference whether the crimes described in sections 76 and 77 be committed against France or her allies.

SEC. 80. A public officer or agent. or every one intrusted with an official negotiation of secret nature, who shall betray the secret to an agent of a foreign or hostile power, shall be punished with death.

SEC. 81. A public officer who shall deliver up to the enemy plans of fortresses shall be punished with death; if he delivered them up to a neutral power or to an ally, the punishment shall be detention.

SEC. 82. Every other person, having secured such plans by corruption, fraud, or violence, and delivering them up to a foreign power, shall be punished like an officer. [But if such person did not obtain said plans by illegal means, the punishment shall be deportation, if the plans were delivered up to the enemy of the country, and imprisonment of two to five years if they were delivered up to a neutral power or to an ally of France.]

SEC. 83. Concealing spies is to be punished with death.

SEC. 84. Every one who, by hostile acts, not approved by the government, shall intricate the state so as to expose it to war, shall be punished with banishment, and if the war broke out, with deportation.

SEC. 85. Whoever shall expose, by hostile acts not approved by the government, Frenchmen to retaliation, shall be punished with banishment.

B.-CRIMES AGAINST THE INTERIOR SAFETY OF THE STATE.

Section 86 seq., deal with civil war, with illegal use of the military force, with pillage and devastation within the territory, and provide as follows:

(a) A crime for the purpose of exciting civil war is to be punished with death.

(b) A proposal of complotting for that purpose is to be punished : (a) With deportation, if an act leading to that purpose were

committed.

(6) With detention, if no such act were committed, though
two or more persons had agreed for complotment.
(y) With detention of one to five years, if the proposal were
not accepted by any one, that is to say, no complot-
ment were effected.

C.-CRITICISM.

We saw in Chapter III, A I, that all "crimes against the safety of the State" (section 75 seq. of the French penal code) are to be resented irrespective of the nationality and place of commission of the deed, for section 7 of the French "code of criminal proceedings" provides for punishing foreigners' foreign crimes against the safety of the State "according to the provisions of French law should that person be arrested in or surrendered to France." (See page 25.)

We shall now investigate this extraterritorial criminal jurisdiction of France.

Section 75, according to its verbal tenor, is applicable to Frenchmen only. A foreigner, though not a subject of the inimical power, may join the army of the latter and enjoy the rights of the same according to the law of nations and the usage of war.

Sections 76-79 deal with acts committed by non-soldiers, either with the purpose of exciting war against France or during a French war. In this case a foreigner, having committed such a crime as defined by sections 76-79, may be treated according to the "usage of war" without prejudice to the question of the right of extraterritorial criminal jurisdiction. But as far as the accused one violated said French statutes within the territory of the United States, we have to search whether or not he be altogether punishable according to sections 5281-5283 and 5286 of the Revised Statutes of the United States, reading as follows:

5281. Every citizen of the United States who, within the territory of the United States or the jurisdiction thereof, accepts or exercises a commission to serve for a prince, state, or people in war against a prince, state, or people with whom the United States are in peace, shall be deemed guilty of a high misdemeanor and be punished with imprisonment not more than three years and a fine not more than two thousand doliars.

5232. Every person who, within the territory of the United States or the jurisdiction thereof, enlists or enters himself, or hires or retains another person to enlist or

enter himself, or to go beyond the limits of the United States with the intention to be enlisted or entered in the service of any foreign prince or state or people as a soldier, etc., shall be guilty of a high misdemeanor and be punished with imprisonment not more than three years and a fine not more than one thousand dollars.

5283. Every person who, within the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out, or arming of any vessel, with intent that such vessel shall be employed in the service of any foreign prince or state, etc., to cruise or commit hostilities against the subjects or property of any foreign prince or state, etc., with whom the United States are at peace, or who issues or delivers a commission within the territory, etc., of the United States for any vessel to the intent that she may so be employed, shall be deemed guilty of a high misdemeanor and fined not more than ten thousand dollars and imprisoned not more than three years. And every such vessel, with her tackle, etc., shall be forfeited, one-half to the use of the informer and one-half to the use of the United States.

5286. Every person who, within the territory or jurisdiction of the United States, begins or sets on foot, or provides or prepares the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of colony, district, or people with whom the United States are at peace, shall be deemed guilty of a high misdemeanor, and shall be fined not exceeding three thousand dollars and imprisoned not more than three years.

Thus an American perpetrator of said crimes described in sections 76-79 of the French penal code might altogether violate one or more of the quoted sections of the Revised Statutes of the United States. In this case two possibilities could occur:

(1) The United States had punished the perpretrator for violation of our laws. In this case the United States would have to protect the offender, if later arrested in France, against a second trial for the same offense, should he be an American citizen.

(2) The United States had, because of their ignorance of the deed, not punished the offender. In this case the United States can not claim their "privilege of priority of jurisdiction," because there is no provision in the treaty of extradition between France and the United States for extraditing such offenders, and therefore the United States are not in position to make use of their "privilege of priority of jurisdiction."

Section 80 deals with public officers and such persons as negotiate official affairs. We may refer, at this point, to the German statute, quoted in Chapter III A II, c (punishing foreign offenses of Germans and foreigners while in official German duty), and to our commentary upon it, in Chapter III C III.

Section 81 deals with time of war, to which the “ usage of war " is applicable, as in case of sections 76-79; these sections thus need no

excuse.

Section 82. This section invites us to stop and think for a moment, for section 82, part 2, refers to time of war as well as times of peace; it threatens with detention of two to five years every unofficial person (including foreigners in foreign countries) who, having obtained, by means not illegal, plans of fortresses, shall deliver them up to a foreign power, say to the government of his mother country.

Here we have got on the part of France an instance of what we called above exceeding the right of self defense, a transgression of our rights of self-defense.

The following case of fiction may serve for explanation :

Suppose the United States and France were close neighbors again; France, for instance, were once more in possession of Canada and worried this country, so as to make the outbreak of a war in near future time rather possible. Under those circumstances an American traveler in Canada happens to get, but not by illegal means, plans of French Canadian fortresses. Our American citizen would not bethink himself

how to act; he would resolve:

"As I did not get my treasure by corruption, by fraud, theft, or violence, my conscience remains intact. I wouldn't keep, for my own use, a purse I should happen to find on the street; but if, next to the purse, I should discover a sick or starving man lying prostrated, I wouldn't hesitate to give him some little money out of that purse should I be unable to help him from my own.

"Now, my own country is in danger of war with France. I am bound to help my country, and it wants these plans, and so I shall deliver them up to the government of my country. In doing so I am committing only an act of justified self-defense, for my country is threatened with war. Nobody can blame me for assisting, by means not involving fraud, corruption, or violence, my imperilled country."

Thus the French law transgressed the line of justified self-defense by denying to other ones the same right of self-defense.

The logical result of our argumentation is this: An act treacherous to one country, and committed by a foreigner in a foreign country, may be sometimes on the part of the perpetrator a highly patriotic act towards his own country.

Punishing that, if not connected with a common crime, is utterly cruel and unnatural.

We declare, therefore, that section 82 of the French penal code, in denying to other states the right of self-defense claimed by France herself, and in punishing foreign fair and justified self-defense, exceeds the limits of the right of extraterritorial jurisdiction, granted on the ground of self-defense. Section 82 is a violation of the Law of Nations.

Section 83 deals with acts committed in time of war; we are thus not concerned by this statute. As far as "espionage" takes place in time of peace the place of commission is France, and American jurisdiction out of question.

Sections 84 and 85 refer to hostile acts committed, in behalf of France, toward foreign countries, thereby endangering the peace of France. If an American citizen, say a native of France, should perpetrate such an act on American soil, the United States could not protect him from trial in France, should he there be arrested, provided that said "hos tile acts" were not such as defined by sections 5281-83 and 5286 of the