State Attorney Daude, in commenting upon section 86 (see edition of the German penal code, by Daude), quotes, for explanation of that clause, the following decision of the German Supreme Court of October, 1881, vol. 5, p. 60:

The conception of an "act preparatory to high treason" is not excluded on account of the act lacking the purpose of making the "preparation" perfect and aiming only the contrivance of a further preparatory act.

Thus section 86 means, if we understand it right, preparatory to further preparation of endless preparation of final preparation. That is exactly the sense of section 86, as explained by the German Supreme Court.

That law is a trick for catching offensive political partisans, against which not evidence enough can be found to convict them on the ground of section 85.

(4) We might be, of course, quite indifferent to that section 86, were we not affected by it in consequence of section 4, 1, of the German penal code, providing for Germany extraterritorial criminal jurisdiction of foreigners' foreign offenses of high treason. We shall have, therefore, to

state our American position towards that law.

In this regard we unhesitatingly say: Germany is at liberty to extend punishment of "acts preparatory to high treason" to the limits of laughing, sneezing, etc., but only within her territory; she has no right to deprive us of our privilege granted by constitution and institutions of this country. The question is not here of organizing in this country rebellion to take effect in Germany. The question is merely of our right, as republican citizens, to propagate republican ideas and to support them. Our republic is essentially interested in supporting republican feeling abroad, and, indeed, in behalf of its own safety, because a monarchical government is too often inclined to declare war for the sake of conquests.

If naturalized German-Americans send some money to Germany for the support of the election of republican congressmen (to the Reichstag), this may be, according to the famous section 86 of the German penal code, "a preparation to preparation" to high treason; but we do so in behalf of our self-defense, which is just as legitimate as the self-defense of German monarchy. Germany has no right to interfere with our republican propaganda; the safety of our state depends on the strength of anti-monarchical feeling and ideas all over the world.

Sections 85 and 86, in connection with section 4, 1, involve a serious transgression of our right of self-defense; for they intend to prevent us from propagating such ideas as upon which our republic is founded and the safety of our state is dependent.

CHAPTER VI.

THE GERMAN DYNAMITE LAW AND ITS CONNECTION WITH EXTRATERRITORIAL CRIMINAL JURISDICTION.

A.-INTRODUCTORY.

We dealt heretofore with "extraterritorial criminal jurisdiction under authority of international law," and discovered two cases, one in French law (on crimes against the exterior safety of the state), and one in German law (on crimes against the interior safety of the state), in which foreign legislation on "extraterritorial criminal jurisdiction," transgresses the limits defined by international law, the limits of justified self-defense.

We shall come now to a third case of extraterritorial criminal jurisdiction, lying beyond the limits of international law at all.

Since emanation of her organic criminal statute-book (in 1871), Germany has indulged in continuous special legislation on different matters brought under criminal aspect. By such action, so contrary to German method of scientific systematizing, German criminal legislation, past 1871, lost its rational coherence and systematic connection. That is the curse of all inorganic legislation. By emanation of "special laws" the legislator loses the general view so necessary for that work. Rational legislation requires a main statute-book on a broad foundation, so that all further necessary legislation easily could be adapted to, if not inserted in, the statutes of the main book. Piecework-legislation must unavoidably lead to so strange a state of things, we find in this country, where Congress and legislatures pass inorganic laws by the dozens every year.

So Germany, by an inorganic special law of June 9, 1884, lost sight of her principles of "extraterritorial criminal jurisdiction," embodied in her organic statute-book.

That law bears the title of "Law on Criminal and Dangerous Use of Explosives," and is commonly termed the "Dynamite Law" of June 9, 1884. Its clause 12 provides that the clauses 5, 6, 7, 8, and 10 be extended to "Germans and foreigners in foreign countries," according to section 4, 1 of the German penal code, discussed above, Chapter III, A 2, page 25 and seq.; that is to say, that Germany assumes extra

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territorial jurisdiction of offenses, even if committed by foreigners in foreign countries, against those statutes. They read as follows:

B.-TEXT OF THE GERMAN DYNAMITE LAW OF JUNE 9, 1884.

SEC. 5. Who, by use of explosives, shall purposely endanger property or health or life of another one, is to be punished with penitentiary.

If by such act a serious bodily injury were caused, the punishment shall be not less than five years, and if the death of a person were caused, not less than ten years; if the caused death were to be imagined by the perpetrator, the latter is to be punished with death.

SEC. 6. If several persons bespoke for the perpetration of an act, as described in section 5, or if they allied for the continued perpetration of such an act, though not yet defined in its particulars, they shall be punished with not less than five years penitentiary, even if the resolution of perpetrating the crime were not confirmed by acts embracing the commencement of the perpetration.

SEC. 7. Who, with the intention of endangering property, health, or life of another one, or with intention of enabling other ones to commit that crime, shall manufacture, secure, order, or keep in possession explosives, is to be punished with penitentiary from one to ten years. The same punishment shall take place, if one, who is legally authorized to manufacture or to keep in possession explosives, shall deliver them up to others, while knowing that such explosives are destined to the perpetration of such crimes as described in section 5.

SEC. 8. Who, under circumstances not proving an allowed purpose, shall manufacture, secure, order, knowingly keep in possession or deliver up to other persons explosives, is to be punished with prison not less than one year. From this provision certain shooting materials, as defined by a special act of the federal council (Bundesrath), shall be exempted.

SEC. 10. Who publicly, before a crowd, or by circulating (or affixing or publicly displaying) writings (or other representations), or in writing (or by means of other representations), shall urge to commit such punishable acts as described in sections 5 and 6, or to participate in them, shall be punished with penitentiary; the same punishment shall take place if one, by celebrating or glorifying such acts, shall urge or incite to commit them.

SEC. 12. The provisions of section 4, i, of the German penal code, are to be applied to the crimes described in sections 5, 6, 7, 8, and 10 of this law, too.

C.-CRITICISMS.

I.-GENERAL VIEW OF A GRAVE AMERICAN ERROR AT LAW.

Nobody would probably have an objection to a "dynamite-law" per se, for it is only an extension of the law on murder and attempted murder. But just on account of its capacity of a regular law on murder “ extraterritorial jurisdiction" of foreigners' foreign acts is out of place. There is no reason at all why Germany should be permitted to assume extraterritorial jurisdiction of a certain kind of murder and attempted murder while murder (and its attempt) is exempted from extraterritorial jurisdiction on the ground, indeed, that all civilized nations punish that crime.

If such a course as Germany took by section 12 of her dynamitelaw be allowed, there would be no limit to extraterritorial criminal jurisdiction. The only limit to be recognized is "self-defense." If an

American citizen threatens within the United States a subject of Germany, residing on the other side, with dynamite, the right of "selfdefense were established should the Government of the United States not be in position to claim their "privilege of priority of jurisdiction." Mr. Frelinghuysen, late Secretary of State, indeed, in a dispatch of November 24, 1884, to Mr. Lowell, then United States embassador to London, made the following remarks on "lawless combinations which may secretly complot assassination, etc." (quoted in "Digest of International Law of the United States) :"

This Government can only proceed against offenders or suspected offenders, in accordance with law, and it is at least doubtful whether any law is now in existence in this country by which the publisher of the paper now in question can be called to account. I am not aware that such a law exists in any country. It is but recently that any law for punishment of incitement to the commission of murder in foreign countries was placed on the British statute-books. The present laws of the United States only aim to meet the cases of actual overt acts of hostility against a friendly nation, when said acts were committed within the territory of the United States. So far as I remember, this is the full extent to which other nations have gone in this direction. I should think Mr. Frelinghuysen was in grave misapprehension of the case. There is no need for special legislation on "incitement to commit murder abroad." Every State and Territory of the United States has a law (either common or statutory) on murder and the accessoryship before the fact (including “incitement "). This law is a sufficient supply of all judicial and judicious means to meet all cases mentioned in Mr. Frelinghuysen's dispatch.

I imagine the following objection:

"As murder abroad is not subjected to the jurisdiction of the courts of this country, we have the less jurisdiction over an accessory before the fact."

But this objection is a cunning sophism only, for both "accessoryship before the fact" and the consummated crime itself are separate crimes, each of them standing for itself. When I incite here to commit murder abroad I am committing that crime of incitement within this country. We punish, of course, murder only when committed within this country, but on no other ground than in order not to interfere with the right of other states to punish murder committed on their soil. But this reasonable judicial practice is not connected with a charter of free "incitement to murder abroad."

If our law on accessory to murder should legally be interpreted so as to refer only to murder committed within the United States, such law or such interpretation would be a violence to international law, bebecause granting immunity to murder incited here against foreigners in foreign countries.

The fact that we do not punish murder committed abroad can not be a reason to let free "incitement to murder abroad," but, to the contrary, a ground for punishment of such accessory, in order to prevent the plotted murder from being committed abroad.

We saw above (Chapter II, D. B., page 21), from section 5353, that the United States even recognized in a certain case the liability of extraterritorial principal; for the same reason they can not deny the liability of intraterritorial accessory before extraterritorial fact.

"Incitement to murder abroad" is an intraterritorial accessory before an extraterritorial crime, and this accessory is to be prosecuted in this country as an independent principal to the crime of "incitement to murder."

Mr. Frelinghuysen says: "I am not aware that such a law (on punishment of incitement to commit crimes abroad) exists in any country. That is right; but all countries consider it as a matter of course that "incitement to crimes" refers to crime at all, irrespective of the country where it is to be committed. In this sense the supreme court of the German Empire, too, declared in their decision of June 24, 1884, that an intraterritorial accessory before an extraterritorial crime is to be held an intraterritorial principal.

After this digression I wish to say:

Should my theory, in opposition to Mr. Frelinghuysen's, that the United States (or the States of the Union) have the right to punish “incitement to murder abroad" not be sustained by the authorities of this country, then Germany's right to assume jurisdiction over an American incitement to dynamite-attentat against Germany would be indisputable on account of the right of self-defense, warranting assumption of extraterritorial criminal jurisdiction.

2.-TRANSGRESSION ON THE PART OF GERMANY OF OUR RIGHTS.

We refuted, in the foregoing division, Germany's right of assuming extraterritorial jurisdiction over American "incitement to murder abroad," should Mr. Frelinghuysen's theory be disavowed by the authorities of to-day; but in the case the authorities uphold Mr. Frelinghuysen's theory, we conceded, indeed, Germany's right of assuming jurisdiction over American dynamite cases, provided such attempts or incitements were directed against Germany or her subjects residing there; such right arising by necessity of "self-defense." But Germany, as the text of the German dynamite law shows, was not satisfied with provisions for punishment of foreign dynamite offenses against Germany; she rather extended her extraterritorial jurisdiction over all dynamite crimes, committed abroad, without regard to their geographical direction. And that is a serious transgression of the limits of self-defense. If American citizens conspire for a dynamite attentat, not intended to take effect in Germany, Germany should not be allowed to assume extraterritorial jurisdiction over them. Germany, otherwise, could as well pass a law by which she assumes jurisdiction over all unpunished Amercan lynching parties, should they be caught in Germany.

For, as to the degree of lawlessness and moral or immoral qualities, political dynamiters and lynching parties counterbalance to each other;