Court of Common Pleas decided that it was contrary to the law of nations for persons residing in England to enter into engagements to raise money by way of loan for the purpose of supporting subjects of a foreign state in arms against a government in friendship with England and that no right of action attached to any such contract.

In the case of Hargous v. Mexico,1 in which claimant supplied Mexico, under contract, with two war vessels, the commission held that while Mexico could not have made the defense of the illegality of the contract, it could be maintained by the United States on the very strongest ground in that the vessels were intended for service against the United States government.

Numerous cases came before the United States-Mexican Commission of 1868 in which United States citizens had aided Mexico in her struggles for independence against Spain by contracting with Mexican agents in the United States to send emigrants to Mexico and assist in the raising of military supplies to aid its armies. The claims were usually dismissed on the ground that by such aid to Mexico the United States citizen had forfeited his right to the protection of his government.2

Numerous cases have come before other commissions in which the claim was dismissed and claimant's national protection declared forfeited on the ground that he had contributed aid either by way of money or arms to a revolutionary party.3

ard, 529, citing Williams v. Oliver, Maryland Court of Appeals, June, 1843. See also Kent's Commentaries, I, 116; Jarvis (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 149; Cucullu (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3477 et seq.

1 Hargous (U. S.) v. Mexico, Act of March 3, 1849, Moore's Arb. 1280-1283. 2 Sturm (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2756–2757; Brannin (U. S.) v. Mexico, July 4, 1868, ibid. 2757; Greene (U. S.) v. Mexico, July 4, 1868, ibid. 2756. Rivas y Lamar (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2781; Springbok (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3921, Hale, 117; Raborg (U. S.) v. Peru, Jan. 12, 1863, Moore's Arb. 1613-1614; Gros (U. S.) v. Mexico, July 4, 1868, ibid. 2771 (dictum, claimant not being a citizen of the United States); Patterson (U. S.) v. Mexico, Act of Congress, Mar. 3, 1849, Moore's Arb. 2780 (supplying of coal; dictum, claimant did not prove ownership of the vessel); Vernon (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3304, Hale, 81; Isabel (Gt. Brit.) v. U. S., May 8, 1871, Hale, 114. But where such aid, in the shape of merchandise sold, was given to revolutionists, the owners of the goods being ignorant of their intended destination to revolutionists,

International commissions have occasionally made an exception to the rule where an award was sought against the belligerent with whom the contract was made. The demands of equity or some special acknowledgment of the debt by the defendant government was usually regarded as a just reason for an award, and the presumption was always entertained that by presenting the claim the claimant government had waived the violation of its own law. Such exceptions were made in a number of claims against Mexico arising out of contracts made in the United States with General Mina, the agent of the Mexican government, for aid to Mexico in her war with Spain. While under the general rule these claims would have been disallowed, Mexico had by an act of 1825 acknowledged its liability on these claims. The domestic commission under the act of 1849 held that

"this new obligation was not obnoxious to the objection which vitiated the claim arising out of the original claim and has since been recognized as valid and binding upon that government." 1

In the case of Lake,2 an American citizen had made great sacrifices in the service of Mexico, and on equitable grounds the Mexican commissioner, Palacio, considered that Mexico ought not to reject the claim.

The unneutral conduct of one partner seems to be attributable generally to the other partner in all transactions arising out of the partnership relation or in which the partnership has an interest.3

Various forms of unneutral service in time of war, e. g., the carriage of enemy dispatches or correspondence, the carriage of enemy persons, repetition of signals, etc., render the neutral liable to capture by the Duffield (Umpire) believed (dictum) that it did not cause a loss of national protection. Kummerow (Germany) v. Venezuela, Feb. 13, May 7, 1903, Ralston, 526.

1 Meyer (U. S.) v. Mexico, Domestic Commission, March 3, 1849, Moore's Arb. 2390, footnote citing cases of Porter and McRae. Cases before Commission under convention of April 11, 1839, Moore's Arb. 1243; Parrott (U. S.) v. Mexico, Mar. 3, 1849, Moore's Arb. 2439; Meade (U. S.) v. Mexico, Moore's Arb. 3430; Gill v. Oliver's Executors, 11 How. 533; Kummerow (Germany) v. Venezuela, Feb. 13, May 7, 1903, Ralston, 526 (dictum; aid to successful revolutionists).

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

3 McStea (U. S.) v. Great Britain, Act of June 5, 1882, No. 1015, Class 1, Moore's Arb. 2380. But a corporation was not affected merely by the disloyalty of its officers. Officers, etc., v. U. S., 20 Ct. Cl. 18.

wronged belligerent, under the universally recognized laws of war, and necessarily entail a forfeiture of national protection.1 The carriage of contraband goods and attempts at blockade running are transactions which, while entailing liability to capture, are not considered as unneutral service.

(d) Aid and Comfort

§ 369. Definition of "Aid and Comfort."

It has just been observed that various forms of transactions, by the fact that they render aid to one as against another belligerent, constitute unneutral acts.

The protocols of mixed and domestic commissions occasionally provide specifically that the commission shall have jurisdiction over claims of such citizens as had not voluntarily given aid and comfort. to the enemy. Thus, the protocol of January 15, 1880 between France and the United States, the protocol of the United States-Chilean commission of August 7, 1892, the Abandoned or Captured Property Act of March 12, 1863 and the Act of March 3, 1871 establishing the Southern Claims Commission, excluded from the benefits of their provisions those individuals who had given voluntary aid and comfort to the enemy. The principle was expressed as follows in Carlisle v. United States, in the case of aliens domiciled in the Confederate states:

"Those aliens who, being domiciled in the country prior to the rebellion gave aid and comfort to the rebellion were . . . subject to be prosecuted for violation of the laws of the United States against treason and for giving aid and comfort to the rebellion." 2

The principle naturally applied to aliens who after the outbreak of the war gave aid and comfort to the belligerents. The Abandoned or Captured Property Act made it a matter of preliminary proof for the alien to show that he had given no aid and comfort to the rebellion and for the citizen to show loyalty.3

One of the most important international cases involving the construction of the aid and comfort clause was that of Grace Brothers before 1 On unneutral service see Oppenheim, II, ch. V, pp. 515–532.

2 Carlisle v. The United States, 16 Wall. 148.

3 Carroll v. The United States, 13 Wall. 151; Hill v. The United States, 8 Ct. Cl. 470.

the United States-Chilean commission of 1892. Claimants had furnished various supplies to the Peruvian government in its war with Chile, including coal for a ship, supplies for the navy, electrical batteries for the army, had guaranteed a certain person the payment of his services for the remodeling of old rifles belonging to Peru, and advanced to a Peruvian agent in the United States money to purchase arms. As a defense to the jurisdictional objection that they had voluntarily given aid and comfort to the enemies of Chile, the claimants alleged that the supplies were furnished by virtue of a contract with Peru made prior to the war, that the supplies furnished were not contraband, that as neutral citizens they had the right to carry on business with Peru, and that even if the supplies were contraband, the only penalty was the liability to seizure while in transitu. Commissioners Claparède and Gana1 (Goode, dissenting) held that by furnishing articles which by their nature might serve directly and indirectly in the war, they had voluntarily given aid and comfort such as the protocol provided for. Nor does it seem to be necessary that the claimant who furnished supplies to such enemy shall have been guilty of a hostile intention, for

"willingness to give aid and comfort to the enemy without assuming a hostile character towards the other party can be considered as established in all cases in which he who commits those acts in his sound senses can and must know that such acts involve an increase of the strength of one of the belligerents to the detriment of the other."

To the defense of previous contract, the commissioners answered:

"The state of war is a case of superior force which suspends, modifies, or alters all contracts. . . .

1 The furnishing of electric wire and batteries for the use of the reserve corps of the army; guaranteeing a certain mechanic in the employ of Peru the payment of his services in remodeling rifles; advancing to a Peruvian consul general in the United States the funds necessary to attach certain Chilean cargoes of nitrate; the payment of the bills of a special agent of Peru engaged in the purchase of arms in the United States-were all considered acts of voluntary aid and comfort. But where the property was surrendered by the claimants on the demand of the Peruvian government, where the property (certain launches) would have been taken without the owner's consent, it cannot be considered voluntary aid and comfort (dictum). Doctrine of Claparède and Gana in the case of the Grace Brothers (U. S.) v. Chile, August 7, 1892, Moore's Arb. 2781 et seq.

and places the parties in the free and unrestricted position they held before the contract was made.

The payment of customs duties to the confederate government on certain brandy removed from the custom house under the Confederate régime was held by the French-United States Commission of 1880 not to be an "aid and comfort" to the enemies of the United States.1

Under the Abandoned or Captured Property Act an alien suing to recover the proceeds of captured property did not have to show loyalty, but it was necessary to show that he had not voluntarily given aid or comfort to the rebellion.2

The Supreme Court construed the meaning of the words "aid and comfort" as follows:

"The words 'aid and comfort' are used in this statute in the same sense they are in the clause of the Constitution defining treason (art. 3, sec. 3), that is to say, in their hostile sense. The acts of aid and comfort which will defeat a suit must be of the same general character with those necessary to convict of treason, where the offense consists in giving aid and comfort to the enemies of the United States. But there may be aid and comfort without treason, for treason is a breach of allegiance, and can be committed by him only who owes allegiance." ... “A claimant to be excluded [under the Abandoned or Captured Property Act] need not have been a traitor; it is sufficient if he has done that which would have made him a traitor if he had owed allegiance to the United States.' "3

Among others, the following acts have been considered as voluntary aid and comfort to the enemy:

4

"Standing guard over federal prisoners and aiding in the local defence of Richmond; commercial transactions within the confederate lines by the citizen of a loyal state; 5 fitting out a vessel in a confederate

1 De Forge et Fils (France) v. The United States, January 15, 1880, Moore's Arb. 2781; Boutwell's Rep. 132. See also Mr. Hay, Sec'y of State to Mr. Merry, April 17, 1899, For. Rel., 1899, p. 566.

2 Byrnes v. The United States, 3 Ct. Cl. 238; McElhose v. The United States, 3 Ct. Cl. 240; Bruning v. The United States, 3 Ct. Cl. 242; Hill v. The United States, 8 Ct. Cl. 470; Carlisle v. The United States, 6 Ct. Cl. 398; 16 Wall. 147.

3 Young v. The United States, 97 U. S. 39, 63.

4 Keeper v. The United States, 3 Ct. Cl. 74.

5 Geering and Richardson v. The United States, 3 Ct. Cl. 165.