been further subdivided into numerous classes of censurable or reprehensible conduct, which, while actually a breach of national or of international law, nevertheless warrant separate treatment by themselves. We will therefore discuss, under a sixth head, trading with the enemy or prohibited or unlawful trading, and under head seventh, unneutral conduct or unfriendly act, which will include (a) privateering; (b) unlawful expeditions; (c) unneutral service, particularly military service; (d) unneutral conduct in act and "aid and comfort" to the belligerents.

INEQUITABLE CONDUCT GENERALLY

§ 338. Ex Dolo Malo Non Oritur Actio.

The general maxim ex dolo malo non oritur actio applies especially to most of the limitations on diplomatic protection discussed in this chapter. No court will lend its aid to a man who founds his cause of action on an immoral or illegal act. Numerous cases have arisen where the injury to the claimant resulted from his own negligence. The local government therefore was either absolved from all responsibility or its liability greatly reduced, for, as will appear, the doctrine of comparative negligence has been applied in international law and practice.1

Thus, in the Davis case against Venezuela,2 a Venezuelan customhouse official made a wrongful delivery of the claimant's goods to persons other than the rightful consignee. Yet the Umpire (Plumley), in dismissing the claim, held that the wrong delivery was only made

1 In the municipal law of most countries the doctrine of comparative negligence is fully accepted; not so, however, in the United States where there is much opposition to fixing degrees of negligence (18 Harvard Law Review, 536–537).

2 Davis (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 405. For other claims which were disallowed on the ground that the damage was due wholly or partly to the claimant's own fault or negligence, see The Elizabeth (Gt. Brit.) v. U. S., Nov. 19, 1794, Moore's Arb. 4001; The Fame, ibid. 3100 (laches in taking appeal from decision of prize court); Heidsieck (France) v. U. S., Jan. 15, 1880, ibid. 3313, 3316; Selkirk (U. S.) v. Mexico, July 4, 1868, ibid. 3130; Farnam v. Peruvian Indemnity, Mar. 17, 1841, ibid. 4598 (certain expenses, caused by claimant's own action, disallowed); Schooner Henry Crosby v. Dominican Rep., For. Rel., 1895, I, 215–233; The Vixen (Gt. Brit.) v. Russia, 26 St. Pap. 2–60; Queen of the Seas and Deerhound v. Spain, 65 St. Pap. 508-527; see also 2 Wharton, § 243, p. 700.

possible by the gross negligence of the claimant, the consignor, in failing to appoint a resident agent at Venezuela to receive goods.

The Court of Claims has had occasion to apply this principle in several cases. Thus, in the case of Illinois Central Railway Co. v. The United States,1 the court held that there can be no implied contract to indemnify a claimant against a loss caused by his own neglect of duty. Nor will a special act of Congress relieving contractors from liability to the government, relieve them from the legal consequences of their own negligence when seeking to recover damages from the government.2

§ 339. Disloyalty and Unneutral Conduct.

The Court of Claims in construing statutes giving that court jurisdiction of certain classes of claims against the United States, has had occasion to interpret the effect of certain conditions or disqualifying conduct intended to bar the claimant's right to relief. Under the Abandoned or Captured Property Act of March 12, 1863 (12 Stat. L. 820), the disloyalty of the claimant to the United States during the Civil War deprived him of the benefit of claiming under the Act. Similarly, under the fourth section of the Act of March 3, 1883, known as the Bowman Act, a claim for military supplies taken by or furnished to the United States during the Civil War required proof of the claimant's loyalty. It was held that mere residence in the insurrectionary territory raised the presumption of disloyalty which the claimant must overcome in the preliminary inquiry prescribed by the Bowman Act; 3 and that a person who voted for secession only because he thought the safety of himself and family required it, could not be held to have been loyal.4 The disloyalty or unneutral acts of one partner in a firm without affirmative evidence that the other partner remained loyal created a presumption that the disloyalty of the one was imputable to the other; and the general rule followed is that in partnership transac

5

1 Illinois Central Railway Co. v. The United States, 16 Ct. Cl. 312.

2 Henegan v. The United States, 17 Ct. Cl. 273.

Nance v. The United States, 23 Ct. Cl. 463.

Fletcher v. The United States, 32 Ct. Cl. 36.

3

McStea (Gt. Brit.) v. The United States, Second Alabama Claims Court, Act of June 5, 1882, Moore's Arb. 2381.

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. 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.

* 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.

5 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.1 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

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,3 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.6

§ 341. Censurable Conduct Extraneous to Injury or Claim.

5

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.

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

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

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