shall not be unreasonably harsh. The decision in the Wyeth and Speakman case (supra, p. 764) may be regarded as dependent upon other elements in that case, and at all events no authority against the rule here expressed.

§ 365. Claims for Military and Other Service.

Notwithstanding the general rule of the United States that the claims of its citizens for military service rendered to foreign governments or for military pensions will not be supported, Great Britain does not appear to have adopted such a rule. Thus, Great Britain in 1873 successfully urged a claim of one of her subjects arising out of military service rendered to Brazil by claimant's father, Lord Cochrane, during Brazil's war of independence. In the Lake case, the services rendered by the claimant to Mexico 2 were acknowledged by Palacio, the Mexican commissioner, as a just claim against Mexico, but on the whole the decision may be regarded as exceptional, and not based upon law, but on the equitable views of the Mexican commissioner. Similarly, by way of exception, the special acknowledgment by Mexico of debts for services rendered, was held to justify awards, by the Mixed Commission of 1839 and the Domestic Commission under the Act of March 3, 1849, on claims arising out of military service of American citizens rendered to the Mexican government. In spite of the general rule that military service by a citizen abroad to a foreign country entails (within the limitations mentioned) a forfeiture of national protection, Earl Russell held, in the case of a British subject who had served in the Confederacy, that when British protection is demanded by such an individual in a third country (Mexico) it ought not to be withdrawn from him.3

Service of various kinds, rendered to a foreign government, has been held to be violative of the claimant's neutrality, even where it was not strictly military service. Thus, work done in the building and repairing of Peruvian vessels by a United States citizen, while Peru was at war with Spain and at peace with the United States, was

1 Dundonald (Gt. Brit.) v. Brazil (1873), Moore's Arb. 2107-08.

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

3 Earl Russell to Mr. Scarlett, June 1, 1865, For Rel., 1873, II, p. 1342.

considered unneutral service,1 and barred a claim against Peru. So, the fact that an American citizen in the course of a war between France and Mexico took charge, for Mexico, of certain engineering projects and the erection of fortifications during a military engagement, was regarded as a violation of his neutrality.2

The acceptance of a position as purchasing agent for the state of Louisiana, then in rebellion against the Union, was considered unneutral service on the part of a British subject. Similarly, the acceptance of a position in one of the Confederate states (Mississippi) by a British subject, which office could only be held by a citizen of the Confederacy, was held to be a violation of neutrality and a bar to the claim.4

The equitable claim, however, of an Italian, employed as an assistant engineer in the service of Venezuela, he having lived there but a few years, was allowed by Umpire Ralston, because "in a political sense he was not more important to the government than a day laborer." 5

The mere acceptance of a civil office under a foreign government will not in itself under ordinary circumstances be construed as a forfeiture of national protection. The Department will determine in each case how far such office-holding constitutes an identification with the interests of the foreign state so as to impair the citizen's right to protection. So, if coupled with an oath of allegiance to the foreign state such office-holding might well bar his right to claim the protection of the United States. It is regarded as an important factor, in connection with all the surrounding circumstances, in deciding whether the citizen has weakened his claim upon the protection of his own government. It is frequently applied in cases of naturalized citizens returning to their native country and accepting office there.7 1 Hevner (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1650; same decision in cases of Crosley, Hardy and Clark, Moore's Arb. 1651.

2 Fitch (U.S.) v. Mexico, July 4, 1868, Thornton, Umpire, Moore's Arb. 3476.

3 Whitty (Gt. Brit.) v. United States, May 8, 1871, Moore's Arb. 2823.

4 Eakin (Gt. Brit.) v. United States, May 8, 1871, Moore's Arb. 2819; Hale's

Rep., H. Ex. Doc., Pt. I, 43rd Cong., 1st sess. (For. Rel., 1873, pt. III), 15.

5 Giordana (Italy) v. Venezuela, Feb. 13, May 7, 1903, Ralston, 783, 797, 808.

6 Mr. Hill, Asst. Sec'y of State, to Mr. Lombard, May 12, 1900 (case in Cuba), Moore's Dig. III, 785.

7 See Moore's Dig. III, 782 et seq., and various diplomatic notes there quoted.

Service in an urban guard to protect the community, under circumstances where the government was unable to protect foreigners against the depredations of Indians and others, was held by the United States as self-protection, and "not in support of any faction," hence not a violation of neutrality. But the acceptance of office in the diplomatic service of a foreign government, combined with evidence of political interest in its factions during an extended period of time was held in the Corvaia case before the Italian-Venezuelan commission of 1903 to deprive the claimant of his standing as an Italian subject, although it must be added that the Italian civil code also provided that the acceptance of such office involved a loss of citizenship.2

§ 366. Participation in Politics.

Various cases have occurred in which the conduct of the citizen, while not necessarily unneutral, has nevertheless been construed as sufficiently unfriendly toward a third government or as a sufficient identification with its interests to debar his claim as a bona fide citizen of his own government entitled to full rights of diplomatic protection. Such cases have arisen particularly where the citizen has identified himself with the political disputes of a foreign government, or in some other way has so conducted himself toward that government that his own state in equity considers itself by his censurable conduct estopped from demanding full recognition of his rights as its citizen. Thus, where a certain United States citizen had invoked the interposition of the United States in respect of a claim against the Hawaiian government growing out of his alleged arbitrary arrest for connection with an attempted revolt in January, 1895, and it was shown that special rights of Hawaiian citizenship had been conferred on him under a constitution which conferred such rights on persons who had actively participated or otherwise rendered special service in the formation of the provisional government, the Department of State said:

"Having thus personally taken part in the subversion of one government and the establishment of another in a foreign country, it is questionable whether he has not so completely identified himself with the govern

1 Case in Peru, Moore's Dig. VI, 626–627.

2 Corvaia (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 782.

ment which was finally established, as to have lost his right to American protection, notwithstanding he appears to have intended to reserve that right." 1

Too great a degree of political activity in a foreign country often entails a forfeiture of national protection, and where it involves identification with armed factions forfeits neutral protection. There is, however, no reason to conclude that the exercise of minor political rights, such as voting, etc., without some other obnoxious intermixture in political affairs, would in itself be construed as a forfeiture of the right to diplomatic protection.

Participation of a claimant in violence or revolution against the defendant government so as to deprive him of his right of protection as a neutral citizen must be proved beyond all reasonable doubt in order that it may be pleaded as a defense against a claim for the value of neutral property destroyed by government troops.2 Merely favoring a revolutionary party without any other acts of hostility will not deprive the citizen of a neutral nation from enforcing a claim for the use of his vessels not seized as hostile ships.3

Municipal courts of claims established by South American countries to adjudicate upon claims of foreigners arising out of rebellions usually provide that those foreigners who have committed a breach of neutrality by taking part in the revolution shall have no right to appear as claimants and require the claimant to prove that he is a foreigner and has not forfeited his neutrality. The requirement of proving neutrality under the law of Colombia gave rise to a ruling of the Department

1 Mr. Uhl, Act'g Sec'y of State, to Mr. Willis, May 14, 1895, For. Rel., 1895, II, 854-5. See also the Hahnville lynching case, Moore's Dig. III, 344; cases in Moore's Dig. III, 784-786, and Bradford, Atty. Gen. (1795), 1 Op. Atty. Gen. 57. See particularly Canevaro (Italy) v. Peru, Nov. 25, 1899, Descamps and Renault, Rec. int. des traités du xx siècle, 1901, p. 711 (under protocol requiring claimant to prove neutrality).

2 Kelly (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 340-344.

3 Orinoco Steamship Co. (U. S.) v. Venezuela, Feb. 13, 1903, Ralston, 372; Castro (U. S.) v. Mexico, Convention of July 4, 1860, Moore's Arb. 2816-2817, in which an American citizen who had sided with the partisans of Maximilian in Mexico was compensated for the use of his store for quartering troops of Mexicans. This is not considered good law.

See law of Colombia on the recognition of claims of foreigners for exactions during the late rebellion. Bogata, Oct. 17, 1903, 98 St. Pap. 839, 841.

of State in answer to an inquiry as to whether the American legation could certify to the neutrality of American citizens. The Department held that such certification by a legation was irregular and unauthorized, and that citizens are bound by the neutrality laws of the United States to remain neutral. If they engage in acts violative of neutrality, they must bear the consequences, but the government will see that full justice and opportunity of defense are assured them. Their neutrality is presumed until the contrary is proved and application to the legation for a certificate of neutrality does not fortify the presumption which the legation is bound to entertain.1

§ 367. Unfriendly Acts.

The unfriendly act against a foreign government is closely related, in its effects upon protection, to unneutral conduct. While commission of an unfriendly act frequently involves a violation of neutrality, it need not necessarily be unneutral, for it may occur in times of absolute peace. While unneutral conduct is usually a violation of the municipal law of the offender's state, the unfriendly act generally is an infringement of the local law of the state of residence. Both, however, give rise to repressive measures by the injured state and, in the absence of unusual cruelty or harshness, the national government of the guilty alien will not interfere to save him from the consequences of his act. Protection will sometimes go to the extent of an attempt to change or ameliorate the penalty to one of greater leniency. The unfriendly act may take various forms. The element of hostility to the local government is always present. The act may consist in the publication of offensive articles tending to bring the government into contempt, or to induce attacks upon it. In numerous cases expulsion has been the penalty inflicted by the local government, and where the offender's national government was convinced of the justice of the charge, objection has rarely been raised against the execution of the penalty. Only where the expulsion has been carried out harshly or cruelly has the government interposed. It may be added, however, that the national government will usually demand

1 Act'g Sec'y of State Hill, to Mr. Beaupré, July 22, 1902, For. Rel., 1902, pp. 314