title of the party attempting such deception to the protection and aid of his government in the controversy in question, because an honorable government can not consent to complicate itself in a matter in which it has itself been made or attempted to be made the victim of a fraud, for the benefit of the dishonest party.''

The fraud, however, has sometimes been discovered only after the claim was paid by the foreign government either in whole or in part, through diplomatic negotiations or through international arbitration. In such cases the Secretary of State or Congress has set aside a settlement or award obtained by fraud and has not only declined to pay undistributed portions to fraudulent claimants, but has refunded to the foreign government such portions of awards made on fraudulent claims as had already been distributed to the claimants. Thus, all the awards made by the 1866 United States-Venezuelan Commission were set aside on the ground of fraud.2 Awards of the Domestic Commission under the Act of March 3, 1849 were set aside by the courts in the famous Gardiner case 3 and by direct act of Congress in the Atocha case. Congress similarly reopened two of the awards under the Chinese Claims Treaty of 1858,5 and in the case of the Caroline, the Secretary of State refunded to Brazil, against the protest of the claimant, certain moneys which had been paid by Brazil after diplomatic settlement. Congress appropriated a large sum to reimburse Brazil for moneys paid to United States representatives, but which never reached the Treasury."

4

The most famous cases of the representation of fraudulent claims were those of Weil and La Abra Silver Mining Co. before the United States-Mexican Mixed Claims Commission of 1868.8 These cases

1 Mr. Seward, Sec'y of State, to Lord Lyons, British Min., May 30, 1862 (MS. Notes to Gt. Brit., IX, 187; Moore's Dig. VI, 622).

2 Moore's Arb. 1659 et seq. It is true that the fraud was on the part of the tribunal and not of the claimants.

For the full history of this case, see Moore's Arb. 1255–1266.

13 Stat. L. 595; 16 Stat. L. 633.

15 Stat. L. 440; 20 Stat. L. 171.

6 Moore's Arb. 1342.

718 Stat. L. 70; S. Ex. Doc. 52, 43rd Cong., 1st sess.

8 For a full history of these cases up to the decision of the Supreme Court in the La Abra case and the refund to Mexico, see Moore's Arb. 1324-1349. See also supra, p. 375.

were referred to the Commission of 1868 without previous examination by the Department of State. Large awards were made on both claims, induced by perjured testimony of the most vicious character. Mexico paid a number of installments on the awards, protesting through many years that they were obtained by fraud. For a long time the Department of State insisted on the payments on the ground of the finality of the award, but the suspicion of fraud became so strong that finally Congress and the State Department itself recommended a reëxamination of the claims. A treaty providing for an international commission for this purpose, after dragging through the Senate for a number of sessions, remained unconfirmed, and finally in 1892 Congress passed an act conferring jurisdiction on the Court of Claims to investigate both the Weil and La Abra cases and to determine whether the charges of fraud were well founded. After proper examination, the Court of Claims held that the awards in both cases,1 were obtained by fraud and perjury. Thereupon, the Secretary of State returned to Mexico all payments on these two claims which were in the hands of the Department, and Congress appropriated a large sum of money for the re-payment to Mexico of the installments which had already been turned over to the claimants.3 Before the decision as to the fraudulent character of the claims was reached, assignees of the original claimants brought two mandamus proceedings to compel the distribution of the sums received by the Department of State. One was directed against Secretary Frelinghuysen, and the other against Secretary Blaine.* In dismissing the petitions for mandamus, the Supreme Court examined thoroughly the legal position of the government in the presentation of a claim against a foreign government and its liability for the distribution of an award obtained by fraud. One paragraph may be quoted from the decision of Chief Justice Waite in the Frelinghuysen case:

"The presentation by a citizen of a fraudulent claim or false testimony for reference to the commission was an imposition on his own government, and if that government afterwards discovered that it had in 1U. S. v. La Abra Silver Mining Co., 29 Ct. Cl. 432; 32 Ct. Cl. 462, affirmed in 175 U. S. 423. U. S. v. Weil, 29 Ct. Cl. 523; 35 Ct. Cl. 42.

'Frelinghuysen v. Key, 110 U. S. 63; U. S. ex rel. Boynton v. Blaine, 139 U. S. 306.

this way been made an instrument of wrong toward a friendly power, it would be not only its right but its duty to repudiate the act and make reparation as far as possible for the consequences of its neglect. . . . Claims presented and evidence submitted to such an [arbitral] tribunal must necessarily bear the impress of the entire good faith of the government from which they come and it is not to be presumed that any government will for a moment allow itself knowingly to be made the instrument of wrong in any such proceeding."

1

As an incident to the Weil and La Abra cases we may mention the bill to prevent and punish the prosecution, under the protection of the United States, of fraudulent claims against foreign governments, which was introduced in Congress on June 16, 1884. The provisions of the bill followed those of § 5438 of the Revised Statutes (supra, p. 725) which punished the presentation of fraudulent claims against the United States, and were intended to make it an offense equally punishable to present fraudulent claims to the Department of State for prosecution against a foreign government.2 The bill seems never to have passed.

It has already been seen that naturalization obtained by fraud will not serve as a title to protection, but will, in fact, upon discovery, result in a withdrawal of protection, and under certain circumstances, in a proceeding for the cancellation of the naturalization certificate.

As early as 1856 Secretary Marcy gave expression to the policy that the Department of State

"will not present to a foreign government claims for damages, which, though based on a wrong actually done, are speculative and exorbitant in amount." 3

It has been observed, however, that the Department, in the exercise of its discretion and full control over the claim, does not necessarily reject it, but may reduce it in amount.

EVASION OF NATIONAL DUTIES

$346. Desertion.

The most serious offense of this character is desertion from mili

1 H. R. 7352, 48th Cong., 1st sess.

2 House Rep. 2391, 48th Cong., 2nd sess.

3 Mr. Marcy, Sec'y of State, to Mr. Munro, Jan. 10, 1856, Moore's Dig. VI, 615.

tary service. The instructions for the Government of Armies of the United States in the Field of April 24, 1863 1 provided in § 48 that

"Deserters from the American Army, having entered the service of the enemy, suffer death if they fall again into the hands of the United States, whether by capture or being delivered up to the American Army; and if a deserter from the enemy, having taken service in the Army. of the United States, is captured by the enemy, and punished by them with death or otherwise, it is not a breach against the law and usages of war, requiring redress or retaliation."

Section 1996 of the Revised Statutes which incorporated an Act of March 3, 1865 2 provides that

"All persons who deserted the military or naval service of the United States and did not return thereto or report themselves to a provost marshal within sixty days after the issuance of the proclamation by the President, dated the 11th day of March, 1865, are deemed to have voluntarily relinquished and forfeited their rights of citizenship, as well as their right to become citizens; and such deserters shall be forever incapable of holding any office of trust or profit under the United States, or of exercising any rights of citizens thereof."

The forfeiture did not, however, apply to soldiers and sailors who had served according to their enlistment up to the 19th of April, 1865. The penalties of § 1996 were extended in § 1998 to

"every person who hereafter deserts the military or naval service of the United States, or who, being duly enrolled, departs the jurisdiction of the district in which he is enrolled, or goes beyond the limits of the United States, with intent to avoid any draft into the military or naval service, lawfully ordered." a

It has, however, been held that the provisions of §§ 1996 and 1998 can only take effect upon conviction by a court-martial.1 Desertion. can be exercised only by persons of lawful age and not by those who leave their country under the charge or conviction of crime or other

1 General Orders, No. 100, April 24, 1863, War of the Rebellion, Official Records, Series 3, v. III, p. 154. Quoted in Moore's Dig. VII, 234–235.

2 13 Stat. L. 490, ch. 79, § 21.

3 See also United States v. Snow (1877), 2 Flipp (U. S.), 127 Fed. Cas., No. 16,350; Kurtz v. Moffitt (1885), 115 U. S. 501.

Kurtz v. Moffitt (1885), 115 U. S. 501; Huber v. Reily (1866), 53 Pa. St. 112; State v. Symonds (1869), 57 Me. 148; Severance v. Healey (1870), 50 N. H. 448; 15 Op. Atty. Gen. 159 (1876).

disabilities.1 Forfeiture of goods cannot, however, it seems, be inflicted as a penalty under this section.2 The court in Huber v. Reily (1866), said that

"the forfeiture which it [the act] prescribes, like all other penalties. for desertion, must be adjudged to the convicted person, after trial by a court-martial, and sentence approved,"

and the conviction, it seems, can be approved only by a duly authenticated record.3

Practically every European country provides severe penalties for desertion and evasion of military service. Generally the penalty involves the loss of citizenship and always the loss of the right to protection. In countries where military service is compulsory, such as Germany and France, in which a citizen remains subject to call to the reserves, when such service is deemed necessary by the government, he likewise incurs severe penalties for a failure to return home and respond to the call. This failure to heed the jus avocandi, as it is called, generally involves a loss of citizenship and with it a loss of the right to national protection.1

It has been observed that the United States has had difficulty in determining whether the taking of service abroad by a citizen of the United States involved the loss of citizenship and with it a loss of national protection. The test finally applied was whether the foreign service involved the taking of an oath of allegiance. If in entering such foreign service an oath of allegiance to the foreign state was necessary and was taken, the citizen thereby forfeited his right to protection at the very least, and since the Act of March 2, 1907, his citizenship as well.

1 The American Passport, Washington, 1898, pp. 131-132.

2 Cavander's Case (1872), 8 Ct. Cl. 283.

4

3 Strong, J., in Huber v. Reily, 53 Pa. St. 112, 120.

Supra, p. 686. As to the German rules for the forfeiture of protection by evasion of military service, see § VI of the Dienstinstruktion of June 6, 1871, law concerning the organization of the consular service, Nov. 8, 1867; Zorn, Staatsrecht des deutschen Reiches, II, 481, note 139.

See the recommendations of the Board on Citizenship, expatriation and protection, H. Doc. 326, 59th Cong., 2nd sess. So far as expatriation is concerned a number of court decisions (all prior to the Act of 1907) have declined to support the doctrine that the taking of an oath of allegiance to a foreign sovereign forfeited