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.1

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

custody he was held. It is not admitted that the right to prosecute him for violating American laws in 1915 was dependent upon the procedure adopted by Great Britain in effecting his arrest. The general right to subject Rintelen to criminal prosecution before an American tribunal could be fairly challenged by Germany only on the ground that the United States had itself unlawfully removed or secured him from German custody. Such was not the case.

It may be suggested that as an enemy person attached to a military service, Rintelen was entitled to special immunities. It is not understood, however, that by virtue of international law a person normally entitled to the benefits of treatment commonly accorded a prisoner of war, is exempt from prosecution for criminal acts committed prior to his captivity and in time of peace. Thus, according to Section 71 of the Rules of Land Warfare issued by the Office of the Chief of Staff of the United States Army, under date of April 15, 1917, "A prisoner of war remains answerable for his crimes committed against the captor's army or people, committed before he was captured, and for which he has not been punished by his own army."

The acts laid at the door of Rintelen deserve brief attention. In May, 1917, he was convicted of having violated, prior to his departure from the United States, the Sherman antitrust law through the attempt to prevent the shipment of munitions abroad. In November, 1917, he pleaded guilty to a charge of conspiring to defraud the United States by fraudulently obtaining a passport in 1915. In February, 1918, he was convicted of having attempted to blow up the British transport Kirk Oswald in 1915. As the commission of this offense was prior to the enactment of the Espionage Act, Rintelen was subject to the relatively light penalty (eighteen months' imprisonment and a fine of $2000) prescribed by an earlier section of the Federal Criminal Code. In imposing sentence, the District Judge expressed regret that it did not lie within his power "to deal out adequate punishment.”

Germany could not undertake to ratify these activities within the territory and against the sovereignty of a state with which it was then at peace, without subjecting itself to lasting censure. Nor would imperial ratification have deprived the United States of its normal right of jurisdiction. The case of Rintelen bears no resemblance to the extraordinary situation when, after a Canadian force had, in 1837 on grounds of self-defense, entered American territory and destroyed the steamer Caroline, causing the death of certain of its occupants,

the British Government saw fit to ratify the acts of the participants and thereby to endeavor to exempt one of them from prosecution.

As to the propriety of the threat to make reprisals, the response of Secretary Lansing, dated June 4th, set forth definitely the position of his country. He said:

The threat of the German Government to retaliate by making Americans in Germany suffer clearly implies that the Government proposes to adopt the principle that reprisals occasioning physical suffering are legitimate and necessary in order to enforce demands from one belligerent to another. The Government of the United States acknowledges no such principle and would suggest that it would be wise for the German Government to consider that if it acts upon that principle, it will inevitably be understood to invite similar reciprocal action on the part of the United States with respect to the great numbers of German subjects in this country. These words admit rather than deny that a belligerent can not dispense with retaliation. They emphasize and suggest, however, vitally important conditions which must exist before resort can be lawfully had to measures of so-called reprisal, and before a threat to have recourse thereto can be justly made. If, for example, the enemies of Germany had at the outset of the war in the course of offensive operations undertaken to bombard undefended places, single out hospitals as objectives for attack, poison wells, deny quarter, torture prisoners, make perfidious use of flags of truce, and employ the Red Cross as a shield for guns, the shocked and outraged Teutons might well have engaged in sternest measures of protective retribution. Justification would have been due to the acknowledged lawlessness of the conduct sought to be checked. On the other hand, neither Germany nor any other state taking part in war has the right under the law of nations to inflict or threaten to inflict injury upon innocent enemy persons within its control as a means of preventing its adversary from exercising its lawful rights as a belligerent or its normal rights of jurisdiction as a sovereign. To embark upon measures of reprisal in order to compel a state not to do what it has a right to do, is as lawless on principle as the act of a highway robber or a blackmailer. If, on account of war, a belligerent attempts to excuse such conduct towards its adversary on the ground of military exigency, it squarely takes the position that there are no laws of war which it is bound to heed with respect to the enemy when a strategic or other advantage to itself is thereby forfeited. This is doubtless the basis of the German theory of Notrecht. But it is not one which has prevailed among civilized states generally;