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"The validity of the claims against Mexico based upon the obligation of 1825 has been recognized by the Court of Appeals of Maryland in the case of Gill, trustee, v. Oliver et al." 1

The neutrality of a nation in a war waged by other powers, renders obligatory, according to international law, the observance of neutrality by all its citizens, however difficult it may be for its government to enforce by municipal statutes a conformity by individuals with the duties thus assured by it.

The case of Whitty,2 a subject of Great Britain who had rendered service to the Confederate army and sought exemption from the penalties of his unneutral act by showing that he had resigned such service when he learned of the proclamation of Her Majesty enjoining neutrality upon her subjects in the Civil War, gave the arbitral commission under the protocol of May 8, 1871, occasion to state that the obligations of neutrality of an individual are dependent upon the attitude of his nation and that the claimant was bound to neutral duty before Her Majesty's proclamation; and moreover that a pardon granted by the President restoring to those participating in the Rebellion their rights of property, excepting "property which may have been legally divested under the laws of the United States," as had been the property of this unneutral foreigner, did not relieve claimant from the taint of unneutrality.

Under the protocol between the United States and Costa Rica which provided that

"no claim of any citizen of the United States who may be proved to have been a belligerent during the occupation of Nicaragua by the troops of Costa Rica, or the exercise of authority, by the latter, within the territory of the former, shall be considered as one proper for the action of the board of commissioners,"

it was held by the umpire, Bertinatti (Italy), that a person who removed the greater part of his merchandise on the approach of the

1 Gill, Trustee, v. Oliver, et al., 11 Howard, 529. See Mercantile Ins. Co. (U. S.) v. Mexico, Moore's Arb. 3429; Meade (U. S.) v. Mexico, ibid. 3430; Porter and McRae (U. S.) v. Mexico, ibid. 2390.

2 Whitty (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2883. For the neutral duties incumbent upon the subject of a neutral nation, see Opinion of Bruce, umpire in the case of La Constancia, etc. (U. S.), v. Ecuador, Feb. 10, 1864, Moore's Arb.

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Costa Ricans to a city held by the Nicaraguans and took refuge on board a Nicaraguan vessel was a belligerent; and that inasmuch as a certain corporation had shown its complicity with certain filibusters in Nicaragua, the corporation and the captain of one of its vessels were "belligerents" under the protocol.2

Notwithstanding the proclamation of Presidents Taylor and Fillmore and the declaration of secretaries Webster and Fish, quoted above, it is now certain, as recent practice confirms, that American citizens taking military service abroad against a friendly state do not completely forfeit all right to their national protection. In the case of a number of American citizens who had served with the Boers and had been taken prisoners by the British troops in the South African war, Secretary of State Hay addressed a note to our ambassador in London, Mr. Choate, stating that some of these prisoners had been confined in the unhealthful climate of Ceylon and asked their removal to a more healthful place. Mr. Hay added:

"The government of the United States could not view without concern the risk of life and health involved in sending any unacclimated citizens, taken under the circumstances described, to so notoriously insalubrious a place as the Island of Ceylon. The principles of public law which exclude all rigor or severity in the treatment of prisoners of war beyond what may be needful to their safety imply their nonsubjection to avoidable danger from any cause."

The United States, in the case of these and other prisoners sent to St. Helena and other military stations, made several attempts to secure their release and sought to make arrangements for their transportation home or to other favorable places. The men were finally sent to the United States at the expense of Great Britain.3

While governments therefore, as has been observed, will admit that their citizens, engaging in military service to foreign governments, are subject to capture and treatment as prisoners of war, they insist that such imprisonment shall not be violative of the rules of war and

1 Bowley (U. S.) v. Costa Rica, July 2, 1860, Moore's Arb. 1567.

2 Accessory Transit Co. (U. S.) v. Costa Rica, July 2, 1860, Moore's Arb. 1558; Hoover (U. S.) v. Costa Rica, July 2, 1860, ibid. 1567.

For. Rel., 1902, pp. 463-497 (Mr. Hay's note is dated Oct. 16, 1900).

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.1 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.3 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.1

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." 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. 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.

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

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.1 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.

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