It is, in fact, a general principle of municipal law of all nations that by a disregard or violation of his national law, the citizen assumes all the consequences of his act and forfeits the protection to which normally he might have been entitled. Thus, it has been observed that claims arising out of contracts for services to lobby and to influence Congressional action, transactions obnoxious to the laws of the United States, have been denied diplomatic support.1 So, as will be seen, violation of the country's neutrality, engaging in prohibited trade, or the violation of an embargo establishing non-intercourse, involve the loss of the citizen's right to national protection.

Contracts concluded between individuals in violation of the law of the United States, though valid at the place of performance, and, it would seem, even where made, will not be enforced in the courts of the United States.3

353. Waiver of Forfeiture by National Government.

While international commissions have at times deprived a citizen of his standing before the commission for having violated his national law, the decision as to whether and to what extent the citizen shall ship by the taking of military service abroad. See criticism of Von Bar, op. cit., § 59. By the law of Germany (law of July 1, 1870, art. 20) failure to heed the jus avocandi in time of war involves a loss of national protection, a provision retained in the law of July 22, 1913. A Costa Rican's acceptance of foreign titles or decorations, except university or philanthropic, involves a similar penalty (Law of Dec. 20, 1886, art. 4, Ann. de Lég. Etr., 1887, p. 869).

1 Supra, p. 717.

2 Brannan (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2757-2758; Dennison (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2766-2767. Medea and Good Return (U. S.) v. Ecuador, Nov. 26, 1862, Moore's Arb. 2738 (engaging in privateering). See Act of February 28, 1806, Act of Dec. 22, 1807, and Act of March 1, 1809 (the non-intercourse and embargo acts), for a violation of which the commissioners under a convention with France of July 4, 1831, deprived the claimants of the right to national protection. Kane, J. K., Notes on some of the questions decided by the board of commissioners under the convention with France, Phila., 1836, pp. 19-20; also in Moore's Arb. 4472. Thos. Marin (Mex.) v. U. S., No. 751, July 4, 1868, MS. Op. VI, 161–162 (Mexico had declared certain vessels pirates, and had requested U. S. to arrest them; held Mexico is estopped from claiming indemnity). English Roman-Catholic Colleges in France v. The Award of the Commissioners for LiquidatBritish Claims on France, 2 Knapp's Rep. 23 (corporation existing in France pects in opposition to British law).

nett et al. v. Chambers, 14 Howard, 38–39.

by such breach of his national law be deprived of his right to protection lies with his own government and not with the foreign government. So, a disregard of his national laws by an American citizen was held to furnish no warrant to France for a spoliation of his property.1 Limited protection has at times been extended by the United States to violators of its law abroad, as in the case of the Zerman expedition (infra, p. 762) where, in spite of the unlawful character of the expedition against Mexico, the United States insisted and Thornton, umpire, upheld the contention that the United States had a right to demand that their citizens, accused of crimes abroad, should receive a fair trial and reasonable treatment at the hands of the authorities. In the case of Commodore Danels, who had accepted a privateering commission from Uruguay against Spain in violation of the United States laws and treaties, the good offices of the United States were used to secure his release from detention."

The violation of national law may, in a case involving diplomatic protection, be entirely waived by the country to which an injured citizen belongs. Thus in several cases before the French-United States Commission of January 15, 1880,4 it was argued and held that France may extend its protection to Frenchmen residing abroad in spite of their violation of a decree of France of April 27 (1848) prohibiting the ownership of slaves. In the case of Lake, before the Mexican commission of 1868,5 Wadsworth, American Commissioner, in a dictum, expressed the opinion that where, by taking military service abroad a citizen has violated his national law, the presentation and support by his government of his claim against the government to whom the services were rendered, raises the presumption that his government had waived the violation of its laws.

1 Commission of July 4, 1831, Kane's Notes, p. 20. See, however, English RomanCatholic Colleges in France v. Award of the Commissioners, 2 Knapp's Rep. 23. 2 Dennison (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2767.

3 Instructions of Mr. Buchanan, Sec'y of State, to U. S. Consul in Venezuela, footnote in Moore's Arb. 2737.

4 Motte (Fr.) v. U. S., Moore's Arb. 2574-2578, and cases of Nougué, No. 323 (Aldis, commissioner, dissenting), Laureal, No. 97, and Ladmirault, No. 475, cited in Moore's Arb. 2578. The decree went further and even prescribed a loss of “the quality of a French citizen."

* Lake (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2754.

The violations of national law which will involve a complete or partial forfeiture of national protection are so varied that it seems most convenient to discuss them in classes. We shall treat of these violations, therefore, under the heads of unlawful trade, and unneutral conduct and unfriendly act, with their main subdivisions, privateering, unlawful expeditions, unneutral military service, and unneutral aid and comfort to a belligerent.

UNLAWFUL TRADE

§ 354. Trading with the Enemy.

A state of war interdicts commercial intercourse between enemies. By British and American law the doctrine is upheld that all trading between subjects of enemy states is ipso facto prohibited by the outbreak of the war, unless permitted under a custom of war, such as the case of commercia belli, e. g., ransom bills, or allowed under special licenses. In other words, trading between enemies is unlawful unless expressly permitted. The converse of this doctrine to the effect that trading between enemy subjects is lawful unless prohibited by a special order, is upheld by several other countries, for example, AustriaHungary, Germany, Holland and Italy. The carriage of contraband naturally does not come within this rule.

The Anglo-American rule finds early support in the doctrine of Bynkershoek,1 and has been maintained by the courts ever since. The rule of the freedom of trade is, however, constantly gaining ground and under modern conditions, unless incompatible with military operations, seems by far the more reasonable rule.2

Reference has already been made to the rules governing contractual relations entered into between subjects of enemy states prior to or during war.3

1 The Anglo-American view is firmly supported by the courts, and there does not appear any likelihood of a change to more reasonable rules. Scott, Leslie, Trading with the enemy, 2nd ed., London, 1914 (includes the British Acts and Orders in Council to October 29, 1914); The Hoop (1799), 1 Rob. 196 (Great Britain), and The Rapid (1814), 8 Cranch, 156 (U. S.), are the leading cases; Bynkershoek, Quaestiones Jur. Pub., liv. 1, ch. 9 and 15.

2 The more liberal view is supported by the majority of modern publicists. See authorities cited in Hershey, Essentials of international public law, 367, footnote. 3 Supra, § 46.

The rules governing trading with the enemy are matters of municipal law. In countries which regard such trade as lawful, unless specially prohibited, the municipal courts determine for themselves the legality or illegality of a contract of their subject. Thus, Westlake cites the case of the Prussian banker, Güterbock, who during the FrancoPrussian war participated in the Morgan loan to France. The Prussian criminal court held the loan not only illegal but treasonable. Contracts made in the Confederate States for assisting the war against the United States were unenforceable either in the courts of the Confederate States at the end of the war, or in the Union States. The subject of enemy trading has come up frequently before prize courts and municipal courts, and in Great Britain and the United States the law may be regarded as settled.2 It will probably be impossible to overcome the effect of these time-honored decisions, and so arrive at a more enlightened rule and practice.

The confiscation of the property of enemies and neutrals engaged in unlawful trade is subject to most complicated rules. We shall here only briefly touch upon those in which the conduct or status of the individual constitutes an important factor in determining the legality of confiscation. The Anglo-American rule of trade domicil which fixes the national character of commercial enterprises by the domicil of the vessel or cargo owner has been applied in determining the confiscability of the property of American citizens and British subjects. Thus, a British subject resident in a neutral country, it has been decided, may engage in trade with the enemy of his own country, but not in articles of a contraband nature, the duties of allegiance traveling with him so as to restrain him to that extent.3

1 Cases cited in Scott's Cases of international law, 517 et seq., particularly Wear v. Jones, 61 Ala. 288; Oppenheim, International law, London, 1912, II, 135 et seq.; Westlake, International law, Cambridge, 1907, II, 44 et seq.; Hall, International law, 6th ed., Oxford, 1909, p. 385.

2 Moore's Dig. VII, 391-395, cites a long list of cases in the U. S. Sup. Ct. and other authoritative opinions.

The Neptunus, 5 Rob. 409; The Emanuel, 1 Rob. 302; The Ann, 1 Dodson, 223; Bell v. Reid and Bell v. Buller, 1 M. & S., 726; Marryatt v. Wilson, 1 B. & P. 430. See the modifications inaugurated by the recent British Trading with the Enemy Act printed in Scott, Leslie, Trading with the enemy (London, 1914), and in the works by Schuster and Page, supra, p. 110.

The British courts have held that commerce by a person resident in the enemy's country, even as representative of the Crown of England, is illegal and the subject of prize, however beneficial to his country, unless authorized by license; but the supply of articles for use of the British fleet was held to be an exception to the rule.2 If a British subject employ a neutral to trade for him in the country of the enemy, the neutral is considered to be a mere agent and the transaction is illegal.3

The outbreak of a war usually finds some subjects of each of the enemy states resident in the territory of the other belligerent. It is a general rule that they should be given a reasonable time to withdraw their persons and property from the belligerent soil. The question, however, whether the transaction of withdrawal of their property and its importation into their own country is not in itself an unlawful commercial transaction has created much discussion.

Referring to the view of Vattel and other publicists to the effect that it seems only just that persons so situated should have a reasonable time to withdraw their persons and property and should not be treated as enemies, Duer, the eminent writer on insurance, says:

"It seems a necessary deduction from these views, that, in the judgment of these writers, the property of persons withdrawing themselves from the enemy's country would, in the course of transportation, be entitled to the protection of their own government; since, otherwise, the very object of the lenity exercised toward them might be defeated and that which was granted as a favor would be converted into a snare. To confiscate the property of subjects, in the act of returning to their allegiance, is the extreme of injustice, as well as of impolicy. It is to punish those whom their country should desire to reward."

A distinction is made between a citizen merely resident and one domiciled in a belligerent state. In the latter case, that of domicil, 1 Ex parte Baylehole, 18 Ves. jun. 538; 1 Rose, 271.

2 The Madonna delle Gracie, 4 Rob. 195.

3 The Samuel, 4 Rob. 284. For cases concerning the unlawfulness of various dealings with residents of the Confederate States during the American civil war, see the Reform, 3 Wall. 617; U. S. v. Weed, 5 Wall. 62; The Gray Jacket, 5 Wall. 342; The Hampton, 5 Wall. 372; The Sea Lion, 5 Wall. 630; and numerous cases in volumes 2 and 3 of the Court of Claims Reports.

♦ Duer, Insurance, I, 561-563; Vattel, Droit des gens, liv. II, chap. 18, § 341; liv. III, chap. 4, § 63; chap. 5, §§ 73–75.