vided for in the penal codes of many of the Latin-American states has reference merely to the loss of civic rights. ACTS WHICH DO NOT EFFECT EXPATRIATION § 335. Foreign Military Service. It has been held almost uniformly that entrance into the military service of a foreign government, unless accompanied by an unqualified oath of allegiance, does not effect expatriation.1 Certain decisions of the domestic commission of 1849 which penalized service in Mexico with a loss of American citizenship must be understood at most in the sense of a temporary disqualification of any claim to American citizenship, or a loss of diplomatic protection, during the continuance of the service.2 In the case of a citizen who became engaged in service against a country with which the United States was at peace, Secretary of State Jefferson reasoned that the commission of an illegal act could not operate as a legal method of expatriation.3 When military service to a foreign state involves naturalization-which is not often the case-it has been held that expatriation is thereby effected.* Although, under ordinary circumstances, military service abroad does not involve expatriation, it has been generally held that unneutral military service forfeits diplomatic protection. If American citizens 1 Santissima Trinidad (1821), 1 Brock. 478; 7 Wheat. 283; Mr. Hunter, Ass't Sec'y of State, to Mr. Green, Sept. 10, 1880, Moore's Dig. III, 732; Mr. Bayard, Sec'y of State, to Mr. Whitehouse, Nov. 14, 1888, ibid. 734; Mr. Rives, Ass't Sec'y of State, to Mr. Putnam, Jan. 5, 1888, For. Rel., 1895, II, 850; Mr. Knox, Sec'y of State, to Mr. Moffat, Nov. 21, 1909, For. Rel., 1909, 451. See also infra, § 364. For a ruling to the contrary, see Mr. F. W. Seward, Ass't Sec'y of State, to Mr. Thomas, May 5, 1877, Moore's Dig. III, 733. 2 Infra, p. 772. 3 From report of Mr. Webster in Thrasher's case, quoted in Moore's Dig. III, 731. Bar considers as absurd the former rule of German law that by entering foreign military service a German lost his nationality. Section 59. Kircher v. Murray, 54 Fed. 617; Mr. F. W. Seward, Act'g Sec'y of State, to Mr. Foster, Aug. 13, 1879, For. Rel., 1879, 824; Mr. Hay, Sec'y of State, to Mr. Turley, April 6, 1899, Moore's Dig. III, 735; Martin (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2467 and cases cited (award by Palacio, Mexican commissioner). Unauthorized military service abroad forfeits citizenship in certain countries. Supra, p. 687. 6 are taken prisoners of war, however, the government has deemed it as still its duty to see that they are treated according to the rules of war. If not engaged in unneutral service even their right to diplomatic protection is not affected.2 By the law of certain countries,3 the acceptance of military service abroad does not involve a loss of nationality, unless the subject disobeys a request to withdraw from the foreign service within a fixed time. $336. Other Acts. 4 Among other acts which have been held not to effect expatriation are the imposition of naturalization by a foreign government against the will of the citizen, the acceptance of minor political offices from foreign governments 5 or the exercise of political rights, such as voting, under circumstances not indicating any intention to renounce original allegiance, and the acceptance of titles of nobility from foreign governments. The distinctions attendant upon long continued residence abroad in its effect upon expatriation have been fully discussed.8 1 Infra, p. 768. 2 Dictum of Mr. Bayard, Sec'y of State, to Mr. Whitehouse, Nov. 14, 1888, Moore's Dig. III, 734; Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 454. 3 E. g., Germany, Italy and Austria-Hungary. Supra, p. 687. 4 Supra, p. 535. 5 Office of Swiss vice-consul at New York, Mr. Peshine Smith, Solicitor, to Mr. Louis Boerlin, Oct. 12, 1869, Moore's Dig. III, 716; Mr. Rives, Ass't Sec'y of State, to Mr. Sewall, Jan. 6, 1888, ibid. 718. See also infra, § 380. But see Medina's case, Mr. Davis, Ass't Sec'y of State, to Mr. Weile, April 18, 1870, ibid. 737. See next footnote. Calais v. Marshfield (1849), 30 Maine, 515; State v. Adams (1876), 45 Iowa, 99; Ware v. Wisner (1883), 50 Fed. 310. 7 Mr. Bacon, Act'g Sec'y of State, to Mr. Bryan, May 16, 1907, For. Rel., 1907, II, 957. Mr. Bacon stated: "The acceptance of a title from a foreign government is so opposed to the spirit of our institutions and laws that, although not specifically forbidden, and therefore not sufficient in itself to work expatriation, it is a circumstance to be considered in determining whether or not an American citizen has expatriated himself." 8 Supra, § 326 et seq. CHAPTER III FORFEITURE OF PROTECTION BY ACT OF CITIZEN-Continued. CENSURABLE CONDUCT OF THE CLAIMANT § 337. General Principles. Topical Division. It is often stated that allegiance and protection are correlative. There is this difference, however, that while the duty of fidelity inherent in allegiance is absolute, the duty of the state to protect is conditional on various circumstances, the modifying effect of which it is within the state's discretion to estimate. One of the most frequent reasons for a denial, or at least, a limitation in the extent of the state's diplomatic protection is the inequitable or censurable conduct of the citizen. It is an established maxim of all law, municipal and international, that no one can profit by his own wrong, and that a plaintiff or a claimant must come into court with clean hands. We shall, therefore, in this chapter discuss those cases in which foreign offices or international commissions have refused, or at least, limited the protection ordinarily extended to injured citizens because the acts of the claimant himself have made such protection unjustifiable either in whole or in part. The many cases of this character which have occurred in the diplomatic history of the United States and of other nations during the last hundred years may be classified under certain definite heads, under which we shall undertake to treat the subject: first, censurable conduct generally; second, concealment of citizenship; third, fraud in the presentation or merits of the claim; fourth, the evasion of national duties and particularly military service; fifth, the breach by the citizen abroad of (a) the local law; (b) international law,-assuming, for the purpose, that international law imposes duties upon citizens; and (c) his national law. Because of the great variety of cases occurring under heading five (b) and (c), these heads have been further subdivided into numerous classes of censurable or reprehensible conduct, which, while actually a breach of national or of international law, nevertheless warrant separate treatment by themselves. We will therefore discuss, under a sixth head, trading with the enemy or prohibited or unlawful trading, and under head seventh, unneutral conduct or unfriendly act, which will include (a) privateering; (b) unlawful expeditions; (c) unneutral service, particularly military service; (d) unneutral conduct in act and "aid and comfort" to the belligerents. INEQUITABLE CONDUCT GENERALLY § 338. Ex Dolo Malo Non Oritur Actio. The general maxim ex dolo malo non oritur actio applies especially to most of the limitations on diplomatic protection discussed in this chapter. No court will lend its aid to a man who founds his cause of action on an immoral or illegal act. Numerous cases have arisen where the injury to the claimant resulted from his own negligence. The local government therefore was either absolved from all responsibility or its liability greatly reduced, for, as will appear, the doctrine of comparative negligence has been applied in international law and practice.1 Thus, in the Davis case against Venezuela,2 a Venezuelan customhouse official made a wrongful delivery of the claimant's goods to persons other than the rightful consignee. Yet the Umpire (Plumley), in dismissing the claim, held that the wrong delivery was only made 1 In the municipal law of most countries the doctrine of comparative negligence is fully accepted; not so, however, in the United States where there is much opposition to fixing degrees of negligence (18 Harvard Law Review, 536-537). 2 Davis (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 405. For other claims which were disallowed on the ground that the damage was due wholly or partly to the claimant's own fault or negligence, see The Elizabeth (Gt. Brit.) v. U. S., Nov. 19, 1794, Moore's Arb. 4001; The Fame, ibid. 3100 (laches in taking appeal from decision of prize court); Heidsieck (France) v. U. S., Jan. 15, 1880, ibid. 3313, 3316; Selkirk (U. S.) v. Mexico, July 4, 1868, ibid. 3130; Farnam v. Peruvian Indemnity, Mar. 17, 1841, ibid. 4598 (certain expenses, caused by claimant's own action, disallowed); Schooner Henry Crosby v. Dominican Rep., For. Rel., 1895, I, 215-233; The Vixen (Gt. Brit.) v. Russia, 26 St. Pap. 2-60; Queen of the Seas and Deerhound v. Spain, 65 St. Pap. 508-527; see also 2 Wharton, § 243, p. 700. possible by the gross negligence of the claimant, the consignor, in failing to appoint a resident agent at Venezuela to receive goods. The Court of Claims has had occasion to apply this principle in several cases. Thus, in the case of Illinois Central Railway Co. v. The United States, the court held that there can be no implied contract to indemnify a claimant against a loss caused by his own neglect of duty. Nor will a special act of Congress relieving contractors from liability to the government, relieve them from the legal consequences of their own negligence when seeking to recover damages from the government.2 § 339. Disloyalty and Unneutral Conduct. The Court of Claims in construing statutes giving that court jurisdiction of certain classes of claims against the United States, has had occasion to interpret the effect of certain conditions or disqualifying conduct intended to bar the claimant's right to relief. Under the Abandoned or Captured Property Act of March 12, 1863 (12 Stat. L. 820), the disloyalty of the claimant to the United States during the Civil War deprived him of the benefit of claiming under the Act. Similarly, under the fourth section of the Act of March 3, 1883, known as the Bowman Act, a claim for military supplies taken by or furnished to the United States during the Civil War required proof of the claimant's loyalty. It was held that mere residence in the insurrectionary territory raised the presumption of disloyalty which the claimant must overcome in the preliminary inquiry prescribed by the Bowman Act; 3 and that a person who voted for secession only because he thought the safety of himself and family required it, could not be held to have been loyal.4 The disloyalty or unneutral acts of one partner in a firm without affirmative evidence that the other partner remained loyal created a presumption that the disloyalty of the one was imputable to the other; and the general rule followed is that in partnership transac 5 1 Illinois Central Railway Co. v. The United States, 16 Ct. Cl. 312. 2 Henegan v. The United States, 17 Ct. Cl. 273. 3 Nance v. The United States, 23 Ct. Cl. 463. Fletcher v. The United States, 32 Ct. Cl. 36. 5 McStea (Gt. Brit.) v. The United States, Second Alabama Claims Court, Act of June 5, 1882, Moore's Arb. 2381. |