The above may fairly be called all the evidence in the case as far as Kramář is concerned, and upon this evidence he was found guilty of treason and condemned to death. It is true that the opinion at some length discusses the general oposition of the Czech people to the war and the wholesale surrender of Czech troops, but from a purely legal point of view all this is idle speculation so long as no causal connection between the acts of the defendant and these occasions has been established. Otherwise the opinion is merely a discussion of the political ideas defended by Kramář prior to the war, and of acts which prior to the war were perfectly legal, and were not declared illegal even by ex post facto legislation.
The very first consideration that strikes a lawyer is that the Austrian court threw to the winds the most elementary principle of criminal law, that is to say, that every crime consists of two elements, first a physical element usually called the overt act, and second, a mental element known as the “mens rea” evil intent). 3 M. A. L., 8. It will be seen at a glance that the act in this instance is wholly wanting. Arguendo it might be conceded that the facts recited could be construed as indicating a treasonable intent against the Austrian state, but by no stretch of the imagination can we find in the foregoing recital anything even remotely resembling a criminal overt act. In an American or English court, the case never could have gone to a jury; there would have been a directed verdict for failure of the prosecution to sustain the in dictment with the necessary evidence. In taking this position I do not lose sight of the fact that the Austrian constitution does not define what constitutes treason, and that under the Austrian political and penal system what shall or shall not constitute treason is wholly a matter of statutory provision. Under these statutes many things, which in this country would not even constitute an offense, are declared to be treason. Yet, bearing all this in mind, we still must come to the conclusion that no overt act having been established, the judgment lacks the sanction even of Austrian law and is consequently a judicial crime of the worst sort, an act that would make even a Jeffreys blush with shame.
It is a well-known fact that the political endeavor of Kramář was aimed at transforming Austria into a federal state, which would mete out justice to all the nationalities living under Hapsburg sovereignty. This was the only possible way of saving Austria from the fate of Turkey. Loyalty to Austria, as at present constituted, would of course be treason to the Bohemian nation and indeed to the highest ideals of modern man. This phase of the matter is not within the scope of the present article. But it can be argued with more than a reasonable degree of plausibility that legally no Bohemian can be guilty of treason to the Austrian state. Austria still has the power to declare what shall constitute treason; whether or not she has the right, legally or otherwise, is an entirely different question. Austria came into existence as a confederation of several states, and the Hapsburg dynasty by solemn oaths and pledges obligated itself to maintain Bohemian independence. By a series of wanton and brutal acts the Hapsburgs violated their oaths and de facto destroyed Bohemian independence. These changes, brought about illegally and unconstitutionally, were never acquiesced in by the Bohemian nation, or its accredited representatives. For that matter, the ancient rights of Bohemia were repeatedly acknowledged on paper by the late Francis Joseph. It follows that de jure the Bohemian state is still in existence, and that the Austria state, as we now know it, legally is non-existent. From this again it logically follows that one cannot be guilty of treason against a state whose legal existence has no legal sanction. Indeed, ever since the battle of White Mountain in 1620, the Hapsburg monarchs were guilty of treason against the de jure Bohemian state, and those of them who were never crowned kings of Bohemia as, for instance, the late Francis Joseph and the present emperor, with justice may be called usurpers. Maximilian of Mexico was also a Hapsburg, and he was also a usurper.
Progress of mankind is frequently written in its laws and constitutional provisions more than anywhere else. We do not often realize the importance of such constitution al provisions as the enactment that one shall not be subject to be twice put in jeopardy upon the same charge; that treason shall consist only in levying war against the state, or in adhering to its enemies, giving them aid and comfort, and that for trea-
