his arrest, but the failure to try him by military commission in accordance with the proclamation warranted an award.1

We have seen that naturalized citizens returning to their native country are frequently called upon to do military service. Where such service had accrued and was due at the time of emigration from their native country, protection is withdrawn. Where the liability to service has not accrued previous to emigration, the United States. has generally been able to relieve them from the burdens of service. However, by the local law of many countries the evasion of service is a violation of national law and is punished by expulsion should the citizen return to his native country. It has been observed that in such cases the United States limits its protection against the order of expulsion to securing either an extension of the order until business affairs can be adjusted, or a similar amelioration of the arbitrary application of the order.

§ 349. Acquittal of Criminal Charges. International Claim Unusual. Demands for protection have come before foreign offices on the part of citizens abroad who were acquitted of alleged crimes by the local courts and thereupon demanded damages from the local government. The United States in a recent case of this kind, in which a citizen was acquitted of the charge of counterfeiting, declined to press his claim on the ground that his acquittal did not establish his innocence of the crime charged, but that his defense was technical and successfully showed that the statutory crime of counterfeiting had not been committed.

Great Britain, in a case in which a British subject had been convicted in Haiti through gross irregularities in the trial, limited its protection to demanding his release from imprisonment, but declined to make any demand for indemnity on the ground that the circumstances showed that the Haitian government had good grounds for putting him on his trial, a jury on a first verdict having been equally divided as to his guilt.

1 Santangelo (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3333, 3334; Dubos (France) v. The United States, January 15, 1880, Moore's Arb. 3319, 3321.

2 Case of Michael J. Kouri v. Haiti, For. Rel., 1906, pp. 871-2.

1

If complete innocence of a crime for which a citizen had been convicted and imprisoned were established, it is probable that the United States would, if judicial or administrative machinery were at fault, demand an indemnity on the ground of denial of justice, as has been done in a few cases notwithstanding the fact that up to the present time the United States fails to acknowledge the principle that in convicting an innocent man, it has committed against him a grievous wrong for which the state should indemnify him. Most of the European countries, as has been noted, provide by statute for the indemnification by the state of innocent persons erroneously convicted.2

The citizen abroad, therefore, who violates the local law does not sin away completely his right to the protection of his own government. That government will, in its discretion, take his censurable conduct and the jurisdictional rights of the local state into account, and will exercise ordinarily a protective surveillance not intended to exempt him from a penalty properly incurred, but limited to securing for him a fair trial and customary treatment.

BREACH OF INTERNATIONAL LAW

$350. Piracy and Slave Trade.

Attention has already been called to the prevailing theory that international law, having force among states only, cannot impose duties upon individuals. Hence many publicists would consider it a misnomer to speak of a breach of international law. Rehm is one of the very few, who, reasoning from the penalties imposed upon individuals for violations of blockades and for carrying contraband, argues that international law does bind individuals to some extent. We are not without some authority, therefore, in taking the position, even in a qualified sense, that individuals may violate international law.

The offenses against international law which involve a forfeiture of national protection may be divided into two broad classes: first, those which, while punishable by municipal law, are recognized as 1 Supra, p. 196.

2 Borchard, State indemnity for errors of criminal justice, S. Doc. 974, 62nd Cong., 3rd sess. Wisconsin and California enacted statutes to this effect in 1913.

sufficiently heinous in character to have been made, by convention and practice, violations of international law as well and punishable by any state having jurisdiction; and secondly, those acts which, while not punishable by municipal law, are admitted by all states as being subject to a recognized penalty on the part of the state aggrieved.

The offenses of the first class which have received the most prominence in international relations are piracy and the slave trade. The commission of piracy is regarded as a clear ground for the denial of protection. A pirate has placed himself outside the protection of any law-municipal or international.1

In the early part of the nineteenth century the nations of the world agreed to stamp out the slave trade by the confiscation of vessels engaged in that obnoxious enterprise. By statute it is now illegal in practically all civilized countries. International arbitral commissions to which the United States have been a party have on two occasions dealt with such cases. The first was the case of the brig Lawrence, an American vessel which put into the British port of Freetown in Africa and was there seized and libelled on the ground that she was equipped for the African slave trade, although her papers indicated a general cargo for Havana. Bates, the umpire of the British-American commission of 1853, held that the owners of the vessel could not claim the protection of their government because at the time of the condemnation the slave trade was prohibited by all civilized nations and hence by the United States.2

Similarly, in the Pelletier case 3 Secretary of State Bayard declined to enforce against Haiti an award made by the arbitrator on the ground that the arbitrator restricted himself to deciding whether piracy by the law of nations as distinguished from the piracy of municipal law

1 Piracy, §§ 290, 303-305, of the Federal Penal Code of 1910; Slave-trade, §§ 246– 251 of the Penal Code. For cases on these sections, see Tucker & Blood's annotated Federal Penal Code, Boston, 1910. An international act analogous to the General Act of 1891 for the suppression of the slave trade, is the protocol signed at Brussels, July 22, 1908, between Great Britain and various other powers prohibiting the importation of firearms, etc., within a certain zone in West Africa. 101 St. Pap. 176. 2 Brig Lawrence (U. S.) v. Great Britain, Feb. 8, 1853, Moore's Arb. 2824-2825. Pelletier (U. S.) v. Haiti, May 24, 1884, Strong, arbitrator, Moore's Arb. II, 1749 et seq.

had been committed, whereas he should have applied the Haitian law, which, like the law of the United States (R. S. 5376) defines the slave trade as piracy. Pelletier, having been engaged in the slave trade, was considered not entitled to protection and his punishment having been in no way unusual in view of the heinous character of the offense, Mr. Bayard recommended that the United States decline to enforce the award already made in Pelletier's favor.1 Lord Palmerston in a letter to Mr. Druey, president of the Swiss confederation, Oct. 16, 1859, stated that a British subject "may so conduct himself either by committing piracy or in other ways as to forfeit all claim to the protection of the British Government." 2

§ 351. Violation of Rights of Belligerents. Blockade Running, etc.

Contraband Carriage,

The offenses against international law of the second class, punishable not by municipal law but by the state aggrieved by the censurable act are the carriage of contraband, blockade running, resistance to the right of visit and search, or similar violation of a belligerent right. These acts are, of course, only possible in time of war, and the belligerents whose rights are thereby prejudiced have by international law the right to punish them. Neutral states are not bound to prevent their subjects from engaging in the carriage of contraband or in blockade running, and incur no penalty, moral or other. The individual, guilty of the act, forfeits the protection of his national government, and the latter surrenders its subjects to the penalties prescribed by international law and enforced by the belligerent. As a general rule, the penalty is confiscation of the property involved in the act.

The law of prize consists largely of the rules enforced by belligerents against neutral vessels and property violating belligerent interests, from which the national governments of the owners of the property have withdrawn their protection. Holland has expressed the principle as follows:

1 For. Rel., 1887, pp. 606–607.

2 Ibid., 1873, II, 1348-1349.

3

'Holland, Studies in International Law, Oxford, 1898, pp. 124-125. See the British Neutrality Proclamation during the Russo-Japanese War, censuring contra

"The neutral power is under no obligation to prevent its subjects from engaging in the running of blockades, in shipping or carrying contraband, or in carrying troops or despatches for one of the belligerents; but, on the other hand, neutral subjects so engaged can expect no protection from their own government against such customary penalties as may be imposed upon their conduct by the belligerent who is aggrieved by it."

Presidents of the United States have at various times by proclamation warned citizens of the United States that by carrying contraband they incur the penalty of confiscation and could not receive the protection of the United States.1 We are not concerned with the various proclamations of presidents, such as the recent proclamations of Presidents Taft and Wilson prohibiting the exportation of arms into Mexico, by which the obligations of neutrals have been increased in the interests of public policy and the peace of contiguous neighbors. Violation of such a proclamation would incur all the penalties of a violation of national law together with a forfeiture of diplomatic protection.2

The origin of the word contraband (contrabannum) indicates its unlawful character. Sir Travers Twiss has traced its first use in the treaty of Southampton between England and the United Provinces in 1625.3

We cannot enter here into a complete discussion of the law of contraband. Confiscation of ship and cargo engaged in such trade is subject to various rules. There is a difference between the AngloAmerican practice and the continental practice, although in the Declaration of London (1909) an attempt was made to reconcile the diver

band carriage by British subjects, criticized in Holland's Letters to the Times upon War and Neutrality. Note in 26 Juridical Rev. (May, 1914), 238.

1 President Washington in the Neutrality Proclamation, April 22, 1793, Am. St. Pap., For. Rel., I, 140; Pres. Grant in the proclamation of August 22, 1870 in the Franco-German law. On the whole subject of contraband see a recent article by John Bassett Moore, printed in the Proceedings of the American Philosophical Society, v. 51, No. 203, pp. 18-49.

U. S. v. Chavez, 228 U. S. 525.

Twiss, Law of Nations, War, § 121.

See Bentwich, The Declaration of London, 1911; Westlake, International law, v. 2, ch. 10, Cambridge, 1907; Oppenheim, International law, v. 2, pt. III, ch. 4; Moore's Dig. VII, ch. 26. For an extensive bibliography on contraband, see Hershey, Essentials of International public law, New York, 1912, pp. 504-505.