Revised Statutes of the United States, quoted above (sub-C of this chapter, see pages 30 and 31) securing to the Government of the United States the "privilege of priority of jurisdiction," under the restrictions noted (sub-sections 76-79, see page 30).

Section 86 seq. relating to crimes against the interior safety of the State, might affect Frenchmen of all parties living in this country. If such a one, though a naturalized citizen of the United States, should publish in America articles recommending the restoration, in France, of monarchical institutions by revolutionary means, he would be punished, if seized in France, with prison of two to five years, even if his proposal were not accepted by any one. The same result would follow should, for instance, an American citizen advocate, in an American newspaper, that the French nation may rise against one of its official bodies (the Cabinet, or the Chamber of Deputies, or the Senate) and put them, by force, out of office.

FINAL REMARKS.

Though severe French law appears towards foreigners' foreign crimes against the exterior safety of the State, it proves to be relatively moderate as to crimes against the interior safety of the State, for it punishes only exciting civil war, but does not include political partisan combinations as far as not amounting to revolutionary complotment.

German law, to the contrary, as we shall see now in the two following chapters, proves to be fair, towards foreigners, as to crimes against the exterior safety of the State, but unfair and unreasonable as to of fenses against the interior safety of the State.

S. Mis. 211—3

CHAPTER V.

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

INTRODUCTORY.

As we said above, by German law crimes against the exterior safety of the State are termed "acts treacherous to the country" (Landesverrath), while crimes against the interior safety are called “acts of high treason" (Hochverrath). It is the latter species only of which Germany assumes extraterritorial criminal jurisdiction, while she, by sections 4, 2 of the penal code, confines extra territorial jurisdiction of "acts treacherous to the country" to Germans. Germany reserves to herself, of course, the right to punish such "acts treacherous to the country" committed by foreigners abroad, as may come under the rules of "usage of war," dispensing with the ordinary law.

For the purpose only of better illustrating the difference between French and German laws on foreigners' foreign crimes against the exterior safety of the State, we shall quote German law on "treachery to the country " (that is to say, crimes against the exterior safety of the State), then we shall review German law on "high treason "(crimes against the interior safety of the State).

A. TREACHERY TO THE COUNTRY (LANDESVERRATH).

According to sections 87-93 of the German penal code a German shall be found guilty of "treachery to the country" by—

1. Engaging with a foreign government for the purpose of exciting them to a war against Germany (section 87).

2. Bearing arms in the ranks of a war-enemy of Germany (section 88).

3. Rendering whatever assistance to the war-enemy of Germany or injuring the German army while in war (section 89).

4. Injuring Germany, while in war, by

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(a) Helping the enemy to her fortresses, passes, occupied places, defensive posts, or to the capture of troops, ves sels, treasures, armories, ammunitions, or whatever supplies.

(b) Damaging or destroying bridges or railroads to the advantage of the enemy.

(c) Enlisting troops for the enemy, or inducing German troops (or allies) to desert to the enemy.

(d) Communicating to the enemy plans of operation, or of fortresses, or of fixed positions.

(e) Serving to the enemy as a spy, or concealing and helping spies.

(f) Inciting insurrection among the troops of Germany

or of her allies. (Section 90.)

As to these four degrees of treachery to the country, there was no need to legislate on foreigners; for, if foreigners bear arms in the ranks of the enemy of Germany (section 88) they belong to the army of said enemy and are entitled to all rights of the same; and if foreigners com. mit in a foreign country a crime as defined in sections 87-90, they could be treated, if seized in Germany, according to the "usage of war."

We must, therefore, discriminate "treachery to the country" while the latter is in war, or for the purpose of exciting war, from "treachery to the country in times of peace." The first species (sections 87–90) is to be dismissed from our contemplation; the latter species consists, according to section 92 of the German penal code, of the following: 5. (a) Publishing or communicating to a foreign government secrets of the state, or places of fortresses or documents

or news, with the consciousness that their concealment from another government is necessary in the interest of the German Empire;

(b) Endangering the rights of the Empire (or of a federal state), towards a foreign state, by destroying or falsifying or suppressing documents or means of proof thereof;

(c) Managing, while trusted with an official business with another government, such business to the disadvantage

of Germany.

This section 92 of the German penal code can (with exception of alinea c.) be applied only to Germans. (See sections 4, 2, of the German penal code in our chapter III, A, 2, 2, page 25.) Alinea c. was excepted by section 4, 1, c. of the German penal code, as seen in our chapter III, A, 2, 1, c. page 25.

Thus Germany, in excepting from punishment foreigners' foreign "treacherous acts to the country," committed in times of peace and not amounting to exciting war, fairly took regard to the patriotic sense and feeling and duty of foreigners towards their own mother country.

This section 92 of the German penal code was several times tested in the courts. At the end of the year 1886, for instance, a French commissioned officer of the name of Letellier, traveling in southern Ger. many, was found being in possession of plans of German fortresses. He was arrested and his case laid before the federal supreme court having jurisdiction of "treachery to the country." But that court

ordered the prisoner to be released on account of that statute providing that a foreigner can not be tried for "treachery" if no evidence be given that he committed the deed on German soil, that is to say, that he got those plans of fortresses in Germany.

That fair regard to foreigners' patriotism towards their mother country French law is lacking.

We are sorry that we are unable to extend our praise of fairness of German law to the second series of crimes against the state-to the crimes of "high treason" (Hochverrath), which we shall deal with in the next division.

B.-HIGH TREASON (HOCHVERRATH.)

"Acts of high treason," according to sections 80-86 of the German penal code, means:

(1) Attempt to kill the Emperor (or a sovereign of a federal state while in his state). To be punished with death. (Section 80.)

(2) Attempt

To take a federal sovereign prisoner and to deliver him up to his enemy, or to disable him from governing;

To change, by force, the constitution of the Empire (or of a federal state), or the succession of crown; to separate a part from the federal territory (or from the territory of a federal state), or to annex it by force to another federal state or a foreign country

To be punished with life sentence; if extenuating circumstances exist, with at least five years' fortress. (Section 81.)

(3) All such "attempts" are to be treated as "consummated crimes of high treason," if the accused one did any act by which the purpose was directly to be executed. (Section 82.)

(4) A conspiracy of several persons, to commit high treason is to be punished with five to fifteen years penitentiary or fortress, if such an act, by which the purpose had directly to be executed, were not yet commenced with. (Section 83.)

(5) The same punishment is to be applied to him, who, for the purpose of preparing high treason, is connected with the government of another state, or misuses the power of office trusted to him, or recruits or drills troops. (Section 84.)

(6) He who publicly before a crowd or an assemblage, or by circulating (or publicly affixing or showing) printed matter or such alike, shall call upon to commit high treason, shall be punished with penitentiary or fortress not less than ten years; if extenuating circumstances exist, with fortress from one to five years: (Section 85.)

(7) All other acts preparatory to high treason are to be punished with penitentiary from one to five years; if extenuating circumstances exist, with fortress from six months to three years. (Section 87.)

C.-EFFECT OF THE "HIGH TREASON" LAW ON AMERICAN CITIZENS. (1) Although the crimes, embraced by sections 80-86 of the German penal code, may be divided into crimes of "consummated high treason," (sections 80-82) and crimes of "prepared high treason," sections 4, 1, of the German penal code, providing for foreigners' foreign "acts of high 'treason" is appliable to "preparatory" as well as to "consummated" acts of high treason. (See Daude (State attorney of Berlin), edition of the German penal code, note to section 4, 1, page 13.)

(2) History shows that criminal statutes on acts "preparatory” to high treason nearly always meant foul play, and were merely a trap for the purpose of catching propagandists of free thought. And such is the case with sections 85 and 86, quoted above. Let, for instance, a speaker or a writer in Germany say:

"An educated people should give preference to the republican form of Government above a monarchical one. Monarchical system is incompatible with the personal dignity of citizens, the high standing of which in literature and art entitles them to the claim of full liberty of political thought. Our aim should be, therefore, to supplant Germany with republican ideas."

This sentence, though dealing with "ideas" only, might very easily be brought under section 85. The attorney for the state may say:

"You want the people to get interested in the question of republic, that they strive for changing the monarchical form of government into a republican one. You disclaimed, indeed, the use of force, inasmuch as you advocated 'supplanting ideas' only. But how can you reach that aim, without recurring to the use of violence? Our monarch is sovereign by the grace of God;' nor did he nor his presumptive successors ever declare their will to resign, should it be demanded by the people. There is, thus, no possibility at all to overthrow the present monarchical government in a peaceable way. Your urging on the people to work for the propagation of republican ideas implicitly advocates the use of force for the purpose of erecting a republican government. For there has not been yet in history one single instance of a republic being erected with the good will of the former monarchical sovereign. Thus you committed the crime of preparing high treason."

(3) Should this argumentation not seem to be satisfactory enough, the state might support its cause and enforce the conviction of the accused one by section 86; that clause reads quite innocently, inasmuch as reducing punishment of such crimes to six months, if extenuating circumstances exist. But in reality that section, 86, comprising "all other acts preparatory to high treason," is the meanest trick political partisan legislation ever has indulged in against the people.

What "other preparatory" acts can be imagined besides those defined by section 85, consisting of oral, or written, or printed word, or picture, etc.?