tions, the disloyalty or unneutral conduct of one of the partners binds the firm, though international courts have shown a willingness to admit evidence that the transaction was not a partnership enterprise and that the innocent partner was not responsible for the disloyal acts of the other partner.2

In certain cases where persons in rebellion against the United States, being excluded from the right to sue under the Act of March 12, 1863, based their right to recover the value of cotton captured, the proceeds of which were turned into the Treasury, on an implied contract, alleging that they were not able to sue under the Act because they were not amnestied until after the expiration of the time allowed for suit, the court held that it was the claimant's own wrong if he was a rebel and his negligence that he had not been sooner amnestied.3 Nor did the pardon and amnesty granted by President Johnson on December 25, 1868 (15 Stat. L. 711), to those who had adhered to the Rebellion, with the restoration of rights, privileges, and immunities under the Constitution, operate retroactively to refund to a claimant the value of property seized while he was a rebel.4

The fact of having served the Rebellion was not considered by Secretary of State Fish as sufficient reason for withdrawing protection from United States citizens, in Egypt after the termination of the Rebellion, who had so served.5

§ 340. Effect of Censurable Conduct in Certain Cases.

Several cases under the Abandoned or Captured Property Act related to captures at sea and brought up interesting points of law in connection with the construction placed upon various attempts to avoid capture. The abuse by the claimant of a certain concession was held to justify its revocation by the government and to estop 1 Hargous (U. S.) v. Mexico, Domestic Commission under Act of March 3, 1849. Moore's Arb. 1280-1283; Schreiner v. U. S., 6 Ct. Cl. 360.

2

* Levois & Co. v. U. S., Act of June 23, 1874, Moore's Arb. 2358.

3 Haycraft v. The United States, 8 Ct. Cl. 483.

Knote v. The United States, 95 U. S. 149.

Mr. Fish, Sec'y of State, to Mr. Butler, Oct. 5, 1871, Moore's Dig. VI, 621. As these persons had, however, by contract with the Khedive renounced the right to appeal to their own Government, Mr. Fish then stated that there would be "no ground of interference."

the claimant from demanding compensation. If the claimant has by his own acts provoked the injury, the right to protection will be either forfeited or seriously weakened. So where he incites a mob he must bear the consequences of an injury incurred. This rule was laid down by the Institute of International Law.2 Resistance to the police authorities estops the claimant from demanding compensation for the resulting injury, unless the injury is manifestly disproportioned to his own offense.3

In cases where a claim is based upon services to a foreign government arising out of acts against public policy, diplomatic protection will be refused. Thus, claims founded upon services for lobbying before Congress in behalf of claims of foreign governments or for the revision of awards have been emphatically denied support.4

Ralston, umpire in the Poggioli case,5 held that even though claimants may have been usurers and have aroused their neighbors by their sharp bargainings and heartless collection of their debts, that even though all their injuries were to be attributed to personal animosities, "these excuses [were] not, however, of a character to affect liability if it otherwise existed."

The Pelletier claim against Haiti, in which the claimant was shown to have been guilty of slave trading in Haitian waters, gave Secretary of State Bayard occasion to express an emphatic opinion on the general question of turpitude of the cause of action as barring the claim:

"Even were we to concede that these outrages in Haitian waters were not within Haitian jurisdiction, I do now affirm that the claim of Pelletier against Haiti . . . must be dropped, and dropped peremptorily and immediately by the . . . United States. Ex turpi causa non oritur actio: by innumerable rulings under Roman common law, as held

1 Paquet (Belgium) v. Venezuela, March 7, 1903, Ralston, 270.

2 17 Annuaire (1898), 96 et seq.; 18 ibid. 254 et seq.; Despagnet, Cours de droit international public, Paris, 1910, 4th ed., p. 472. Oppenheim (2nd ed., I, 397) stated that his government in deciding whether to extend protection must consider "whether his behaviour has been provocative or not."

3 Baker (U. S.) v. Peru, Jan. 12, 1863, Moore's Arb. 1625; Brand (U. S.) v. Peru, Moore's Arb. 1625.

Jewett claim v. Brazil; Monitor claims v. Japan; Matchett claim v. Venezuela, Moore's Dig. VI, § 974.

5

Poggioli (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 866.

by nations holding Latin traditions, and under the common law as held in England and the United States, has this principle been applied.” 1

Numerous claims have been disallowed on the equitable maxim that a claimant must come into court with clean hands, thus barring recovery by a claimant who was himself a wrongdoer.2

In some of the claims arising out of the Zerman filibustering expedition against Mexico in 1857 (infra, p. 762) the criterion of guilty knowledge of the unlawful character of the expedition was applied by Thornton, umpire of the Mixed Commission of July 4, 1868, in determining the claimants' right to an award. Thus where the claimant knowingly took part in the expedition his claim was denied, or at least, Thornton said, the "lowest possible" amount of damages should be allowed for the unnecessary and illegal delay in proceeding with his trial and the undoubtedly harsh treatment to which he was exposed. Similarly, ignorance of the unlawful character of the expedition was interpreted as a lack of prudence, but little short of guilty knowledge. A lack of discretion in chartering his vessel to the expedition likewise reduced the amount of damage awarded to a captain for the confiscation of the vessel and the harsh treatment and illegal delay in trial," although the owner of the chartered vessel, having no knowledge of the illegal character of the expedition, was held to be entitled to the full value of the vessel, the Mexican authorities having failed to release her within a reasonable time."

§ 341. Censurable Conduct Extraneous to Injury or Claim.

Censurable conduct extraneous to the particular act out of which the claim arose has sometimes induced the government to decline its protection. Thus a fugitive from justice, Mears, who had participated in the fraud perpetrated by Gardiner and others in the Mexican

1 For. Rel., 1887, pp. 606-607; see the award in Moore's Arb. 1749, against which, in response to a Senate Resolution, Mr. Bayard presented an adverse report.

2 Clark (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2749; Medea and Good Return (U. S.) v. Ecuador, Nov. 25, 1862, ibid. 2739.

Craig, Ballentine, McCurdy (U. S.) v. Mex., July 4, 1868, Moore's Arb. 2768-9.

1 Dolan (U. S.) v. Mex., July 4, 1868, Moore's Arb. 2769.

5 Rebecca Adams, Andrews (U. S.) v. Mex., July 4, 1868, Moore's Arb. 2769-71. 6 Ibid.

Claims Commission (infra, p. 726) was held not to be entitled to the protection of the United States because of his alleged maltreatment in Mexico. Mr. Marcy on that occasion said:

"It is not over criminals or fugitives from justice in foreign countries. . . that this government is bound to throw the shield of its protection." 1

However the criminal conviction of a citizen in a foreign country has been held in itself not to be sufficient cause for refusing a passport.2 It has already been observed that a passport is refused to an American citizen if it is believed that the passport will be put to an improper or unlawful use, but mere censurable or even immoral conduct has on certain occasions not been deemed a sufficient cause for the refusal of a passport. In fact, an examination of the cases indicates that the conduct which has generally justified refusal of a passport was actually a violation of the laws of the United States. Thus, so long as Mormon missionaries abroad taught polygamy, the diplomatic and consular agents of the United States were instructed to refuse protection to Mormon missionaries. The causes of refusal, it seems, are not subject to general rules, but depend upon considerations applicable to each particular case.1

3

1 Moore's Dig. III, 789-790; Mr. Marcy, Sec'y of State, to Mr. Gadsden, Minister to Mex., No. 54, Oct. 22, 1855. For the case of Mears and Gardiner, see Moore's Arb. 1255-65. For the case of Winslow, see Mr. Bayard, Sec'y of State, to Mr. Hanna, Minister to Argentine, June 25, 1886, Moore's Dig., III, 922.

2 The reason for Mr. Bayard's so holding was "because foreign convictions of crime are not to be regarded as extraterritorial in their operation." Mr. Bayard, Sec'y of State, to Mr. Walker, Mar. 29, 1888, For. Rel., 1888, I, 420; Moore's Dig. III, 923; The American Passport, Wash., 1898, p. 119. See also Mr. Adee, Act'g Sec'y of State, to Mr. Conger, For. Rel., 1899, p. 186.

3 For. Rel., 1884, pp. 10, 198; see also For. Rel., 1898, pp. 347, 354.

4 Mr. Wilson, Act'g Sec'y to Mr. Beaupré, April 27, 1907, For. Rel., 1907, p. 1083. The cases cited and opinions quoted in Moore's Dig. III, 919 et seq. show that the refusal to issue a passport has generally rested upon a breach of United States laws. These cases will be referred to later (infra, § 352). In the Waldberg case passports were refused because Waldberg was engaged in blackmailing projects and was disturbing or endeavoring to disturb the relations of this country with the representatives of foreign powers. While it is true that the intended accomplishment of a criminal purpose would justify refusal of the passport, a case in China in 1899 in which Act'g Sec'y Adee directed the issuance of a passport to two lewd women in Port Arthur who desired its protection while continuing to ply their disreputable vocation raises

In cases of actual injury to person or property, with the resultant demand for protection and the advancement of a diplomatic claim, the general doctrine of censurable conduct of a claimant operating as a bar to recovery appears to apply only when the claim is directly connected with or is an outgrowth of such censurable conduct. Thus, the Department of State supported various claims for indemnity arising out of the destruction or injury to houses of prostitution by Government troops in China, on the ground that the occupation and morals of the claimant were in no way connected with or contributory to the loss, following in this respect the decisions of municipal courts, which hold that statutes for the suppression of disorderly houses do not justify their destruction.1

CONCEALMENT AND DENIAL OF CITIZENSHIP

§ 342. Departmental Rulings.

Citizenship represents not only a legal relation but a patriotic one and the Department of State in extending protection may take into account the censurable conduct of the claimant in denying or concealing his citizenship. Thus, it has frequently happened that naturalized citizens have returned to their native country and there, concealing their naturalization, pass themselves off as citizens of the native country until occasion makes it their interest to ask the intervention of the country of their adoption. Mr. Fish and other secretaries of State have considered that such concealment of citizenship absolves the government of the United States from the obligation to protect the offenders as citizens, at least while they remain in their native country.

a question as to the character of the act necessary to forfeit the right to a passport. Mr. Adee could not find that these practices by American citizens, however nefarious, were in violation of the United States statutes (For. Rel., 1899, p. 186). We must bear this holding in mind in considering the opinion of the Solicitor of the Department of State that "if it appears that the applicant keeps a disorderly house, or that he is engaged in gambling or that he has violated knowingly, notoriously, the laws of his residence, it may well be that the United States would not care to make itself a party to such misconduct by the issue of a passport." (Op. of the Solicitor, For. Rel., 1907, pp. 1079–1080.)

1 Welch v. Stowell, 2 Dougl. (Mich.), 332, 19 L. R. A. 198; Conithan v. Royal Ins. Co., 91 Miss. 386, 18 L. R. A. n. s. 214; Phoenix Ins Co. v. Clay, 101 Ga. 331.

2 Consular Regulations of the U. S., 1874, paragraph 110; Mr. Fish, Sec'y of State,