The Supreme Court, however, in the case of the Benito Estenger held that the colorable transfer of a ship from a belligerent to a neutral to avoid capture does not relieve her from condemnation as prize. Likewise, the assertion of a false claim by an agent with or without the connivance of the real owner is a substantive cause for condemnation.2 Forfeiture to the federal government similarly occurs under the Act of Congress of Dec. 31, 1792, where a vessel sails under a register obtained by false swearing as to the domicil of the owners.3

The Declaration of London provides (Art. 55) that the transfer of an enemy vessel to a neutral flag, effected before the opening of hostilities, is valid, unless it is proved that such transfer was made in order to evade the consequences which the enemy character of the vessel would involve. There is, however, a presumption that such transfer is void if the bill of sale is not on board a vessel which has lost her belligerent nationality less than sixty days before the opening of hostilities. Proof to the contrary is admitted.

"There is absolute presumption of the validuty of a transfer effected more than thirty days before the opening of hostilities if it is absolute, complete, and conforms to the laws of the countries concerned, and if its effect is such that the control of the vessel and the profits arising from her employment do not remain in the same hands as before the transfer. If, however, the vessel lost her belligerent nationality less than sixty days before the opening of hostilities, and if the bill of sale is not on board, the capture of the vessel would give no right to damages."

Resistance to legitimate visit and search constitutes a good ground for condemnation of a neutral vessel, and operates as a forfeiture of national protection. The Declaration of London provides (Art. 63):

"Forcible resistance to the legitimate exercise of the right of stoppage, visit and search, and capture involves in all cases the condemnation 1 The Benito Estenger, 176 U. S. 568; see also Hall on transfer of vessels flagrante bello (4th edition), p. 525. While not generally illegal, a sale during war is in itself a suspicious circumstance, and if not a bona fide sale it will not be a defense against capture; see also the Sechs Geschwistern, 4 C. Rob. 100; The Embden, 1 C. Rob. 20; The Jemmy, 4 C. Rob. 31; in France, such sale after outbreak of war is illegal. See supra, pp. 255, 483.

2 The Amiable Isabella, 6 Wheat. 1.

3 The Venus, 8 Cranch, 253.

Oppenheim, op. cit., v. 2, p. 656; Higgins, Report, p. 600 et seq.; Bentwich, Declaration of London, 1911, pp. 104 et seq.

of the vessel. The cargo is liable to the same treatment which the cargo of an enemy vessel would undergo. Goods belonging to the master or owner of the vessel are regarded as enemy goods."

The Supreme Court and the Court of Claims have had frequent occasion to visit this effect upon a resistance to the right of search.1 A neutral vessel is, however, justified in defending herself against extreme violence threatened by a cruiser abusing its commission. The rule is not modified by the apprehension of illegal condemnation on the part of the neutral or by the Act of June 25, 1798 which authorizes American merchant vessels to carry arms for protection against French spoliation.2 In the case of the Schooner Jane the Court of Claims held that it could not differentiate degrees of resistance which would render a vessel liable or not liable to condemnation for resisting visit and search.

BREACH OF NATIONAL LAW

$352. When Protection Forfeited.

It has been observed that the relation between the state and its citizen is fixed by its own municipal law, and that the citizen abroad remains to some extent subject to the prescriptions of his national law. Yet the principle of territoriality operates to deprive the injunctions and duties imposed upon the citizen of their coercive force. at the frontiers of the state. The municipal law cannot be enforced abroad. The state does, however, retain a definite sanction over violations of its municipal law by the citizen abroad, the principal penalty being the loss of protection and sometimes even the loss of nationality, with civil and political rights.4

1 The attempt to elude visit and search forfeits neutral protection. Maley v. Shattuck, 3 Cranch, 488; The Baigorry, 2 Wall. 481.

2 The Ship Rose, 36 Ct. Cl. 291; The Ship Amazon, 36 Ct. Cl. 378; The Schooner Jane, 37 Ct. Cl. 24. See also Schooner Baigorry v. The United States, 2 Wall. 474. 337 Ct. Cl. 24.

* Article 17, § 3 of the French Civil Code and German law of July 1, 1870, article 22, prescribe loss of citizenship for the retention by a citizen of a foreign public office after a request by his country to resign it, although in Germany, the deprivation is optional with the state. This principle is retained in the law of July 22, 1913. France, article 17, § 4, amended by the law of June 26, 1889, and Hungary, law of Dec. 20, 1879, article 50 (Ann. de Lég. Etr., 1880, p. 351) prescribe the loss of citizen

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. So, as will be seen, violation of the country's neutrality, engaging in prohibited trade, or the violation of an embargo establishing non-intercourse,2 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 Liquidating British Claims on France, 2 Knapp's Rep. 23 (corporation existing in France for objects in opposition to British law).

3 Kennett 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.3

4

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, 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.

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, 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.