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into relations with official or unofficial persons of the enemy country whom he has chanced to meet in some neutral country where both happen to be.
Admitting that John Doe, Richard Roe, et al., are inspired by the best of motives, that they are honest and upright persons, they nevertheless come dangerously near the strong arm of the law, either when they engage in a self-imposed mission of the kind specified, or without making overtures, allow themselves to be drawn into discussions even although these do not assume the shape of formal negotiations. Even a democracy needs its agents for purposes of government, and while the citizens can and indeed, should control the policy of the country, the necessity for a division of labor obtains in the business of government as well as in the ordinary pursuits of daily life.
In the United States there is a threefold division of power. All legislative powers granted by the Constitution are vested in the Congress; the executive power is vested in the President; the judicial power in the Federal Courts. An examination of the second article of the Constitution, dealing with the executive branch of the government, discloses that the President "shall nominate, and by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers and consuls," and that "he shall receive ambassadors and other public ministers.” That is to say, the President shall choose the agents in whom he has confidence to conduct the foreign affairs of the country, and if the Senate concurs in his choice, they thereupon become agents of the United States for this purpose. He receives ambassadors and other public ministers without the advice and consent of the Senate, and necessarily he determines whether he shall or shall not receive them, as well as the conditions upon which they may be received, involving, as this action on his part does, the recognition of the independence of the country sending them, or of its right to send them under the circumstances. So much for selecting and receiving diplomatic agents.
In the matter of treaties, the President again, as would be expected, is authorized to direct the negotiations of the persons whom he has appointed; but as they are nominated with the advice and consent of the Senate, so their labors are to be passed upon by the confirming power. As by the second section of the second article of the Constitution the President is vested with the power “by and with the advice and consent of the Senate to make treaties, provided two-thirds
of the Senators present concur," it was foreseen by the framers of the Constitution that there would need to be under it, as under the Articles of Confederation, a department of foreign affairs to aid the President in their conduct. Therefore it was provided by the first Congress under the Constitution, in its Act of July 27, 1789, that ?
There shall be an Executive department, to be denominated the Department of Foreign Affairs, and that there shall be a principal officer therein, to be called the Secretary for the Department of Foreign Affairs, who shall perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President of the United States, agreeable to the Constitution, relative to correspondences, commissions or instructions to or with public ministers or consuls, from the United States, or to negotiations with public ministers from foreign states or princes, or to memorials or other applications from foreign public ministers or other foreigners, or to such other matters respecting foreign affairs, as the President of the United States shall assign to the said department; and furthermore, that the said principal officer shall conduct the business of the said department in such manner as the President of the United States shall from time to time order or instruct.
Here again we have an agent of the President, in the conduct of foreign affairs, not to be selected at random and without formality, but like other officers of the United States, to be appointed by and with the advice and consent of the Senate. The President may appoint Messrs. John Doe and Richard Roe, but if he does not, it would seem to follow by necessary implication that they can neither negotiate abroad with foreign governments nor within the United States represent the government of the Union.
But we do not need to argue the question as if it were one of theory, or to subject the clauses which have been quoted to the canons of constitutional or statutory interpretation. Within ten years of the establishment of the government under its provisions, and likewise within ten years of the passage of the Act creating the Department of State, the legislative and the executive branches of government cooperated in the passage of the Act of January 30, 1799, contained in the first volume of the Statutes at Large, in company with the Constitution, and the Act of Congress creating the Executive Department The young republic had already had experience with Messrs. John Doe and Richard Roe in the person of one George Logan, an American
11 Statutes at Large, 28.
2 By the Act of September 15, 1789, ch. 14 (1 Statutes at Large, 68), the name of the Department of Foreign Affairs was changed to that of the Department of State.
scientist and politician of Quaker parentage, who conceived the idea of proceeding to France in his private capacity in the year 1798, when relations were broken off between that country and his own, in order to settle the claims and causes of difference between the two countries, which John Marshall, Charles Cotesworth Pinckney, and Elbridge Gerry, special envoys of this country to France, appointed for this purpose by President John Adams, were unable to do.
The Logan mission was no ordinary event, and without accomplishing its purpose in France, it created a great stir in the United States. The general feeling may perhaps best be voiced by Washington, who was at that time an ex-President and Commander of the American Army in the event of a war with France. In describing an interview with Dr. Blackwell and Dr. Logan for the latter was a doctor of medicine as well as of politics - Washington himself said:
In a few minutes I went down, and found Rev. Dr. Blackwell and Dr. Logan there. I advanced towards and gave my hand to the former; the latter did the same towards me. I was backward in giving mine. He possibly supposing from hence, that I did not recollect him, said his name was Logan. Finally, in a very cool manner, and with an air of marked indifference, I gave him my hand, and asked Dr. Blackwell to be seated; the other took a seat at the same time. I addressed all my conversation to Dr. Blackwell; the other all his to me, to which I only gave negative or affirmative answers, as laconically as I could, except asking how Mrs. Logan did. ...
About this time Dr. Blackwell took his leave. We all rose from our seats, and I moved a few paces towards the door of the room, expecting the other would follow and take his leave also. Instead of which he kept his ground. ... I remained standing, and showed the utmost inattention to what he was saying. He observed that the situation of our affairs in this country, and the train they were in, with respect to France, had induced him to make the voyage in hope, or expectation or words to that effect, of contributing to their amelioration. This drew my attention more pointedly to what he was saying, and induced me to remark, that there was something very singular in this; that he, who could only be viewed as a private character, unarmed with proper powers, and presumptively unknown in France, should suppose he could effect what three gentlemen of the first respectability in our country, specially charged under the authority of the government, were unable to do.
We may readily admit that "the other," to use Washington's method of referring to Logan, was adequately punished for whatever indiscretion he may have committed in visiting France in a self-appointed diplomatic capacity, inasmuch as the Father of his Country could even abash and disconcert such a man as Gouverneur Morris.
It was not, however, enough to punish the individual after the offense had been committed; it was the part of wisdom to prevent, if possible, its commission. This the Congress attempted to do by rendering acts such as Logan's and similar conduct a high misdemeanor, and punishable as such in the following terms, in a statute of January 30, 1799:
That if any person, being a citizen of the United States, whether he be actually resident, or abiding within the United States, or in any foreign country, shall, without the permission or authority of the government of the United States, directly or indirectly, commence, or carry on, any verbal or written correspondence or intercourse with any foreign government, or any officer or agent thereof, with an intent to influence the measures or conduct of any foreign government, or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or defeat the measures of the government of the United States; or if any person, being a citizen of, or resident within the United States, and not duly authorized, shall counsel, advise, aid or assist in any such correspondence, with intent, as aforesaid, he or they shall be deemed guilty of a high misdemeanor, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term not less than six months, nor exceeding three years.?
This Act of Congress is still on the statute book as Section V of the Act of March 4, 1909, commonly called the Federal Penal Code of 1910. The statute apparently has effected its purpose, for although attention has been called to it from time to time, and it has been invoked to prevent the conduct which it penalizes, no prosecution has ever been instituted under it. John Doe, Richard Roe, et al. would, however, do well to ponder its terms, lest unwittingly they may embarrass the administration and prejudice the good people of these United States.
JAMES BROWN SCOTT.
THE GERMAN DEMAND FOR RINTELEN
The peremptory demand of Germany, as communicated in April to the Department of State by the Swiss Minister at Washington, for the surrender of Capt. Lieut. Rintelen in exchange for Siegfried Paul London, an alleged American citizen condemned to ten years' penal servitude by German authority and held in its custody, deserves more than casual notice.
1 Statutes at Large, 613.
After adverting to the exercise of "judicial clemency” by the Governor General of Warsaw in commuting the sentence of London who had been condemned to death by court-martial "for war-treason as a spy," the German note calls attention to the failure of the efforts of the Imperial Government "to effect an improvement in the situation” of Rintelen who, it is said, “passed into the hands of the American authorities by reason of acts of the British Government, contrary to international law."
Acknowledging failure to bring to a halt criminal proceedings brought against him in America and to secure his release, and in order to lend greater emphasis to the protests said to have been lodged with the United States, it is declared that the German Government contemplates "some appropriate measures of reprisal." It is added that that Government "would, however, prefer to avoid the contingency that persons be taken and made to suffer because the Government of the United States was apparently not sufficiently cognizant of its international obligations toward a German subject."
The German note thus appears to raise two points: first, that the United States has violated some legal obligation to Germany, its enemy, in subjecting Rintelen to criminal prosecution; and secondly, that it is not unreasonable, in the circumstances of the case, to threaten to cause physical suffering to innocent persons in order to enforce compliance with the demand made.
The complaint against the criminal prosecution seems to be based on the theory that Rintelen so entered the domain of the United States or was so placed within its control as to become exempt from the criminal jurisdiction of the nation, notwithstanding his previous defiance of its sovereignty by the violation of its laws within its territory. It is understood that Rintelen was seized by the British in 1915, while attempting to escape to Germany by means of a fraudulent Swiss passport, and following his illegal activities in the United States. Sometime later, in 1917, he was brought by British agents to American territory and there surrendered to American authorities. He was an enemy of Great Britain within its control and transferred with its consent and with a view to his prosecution to the state from whose justice he was a fugitive, and which had also then become the enemy of Germany. It is not believed that any rule of international law imposed upon the United States an obligation to look beyond the fact that Rintelen was willingly surrendered by the state within whose