4 port and running a blockade; 1 dealing in goods, by a citizen of a loyal state, which he knows to have run the blockade, and subscribing to a confederate loan; 2 becoming surety on the bonds of Confederate officers; 3 being voluntarily connected with and having stocks in companies organized to run a blockade; moving further south on the approach of the Union forces to prevent the emancipation of the owner's slaves; 5 manufacturing and selling salt-petre to the Confederates; trading by a non-resident alien with the Confederacy and giving them cannons and munitions of war; 7 purchasing permission from the Confederates to export cotton; purchasing cotton from the Confederates, knowing the money was to be used to sustain the rebellion. The drawing of Confederate bonds was held to be relieving the enemy with money and a bar to a claim before the United States-British Commission of 1871.10 The aid must, of course, be voluntary.11 8 The general amnesty proclamation did not extend to non-resident aliens who had given aid and comfort to the rebellion. Such conduct on the part of an alien was not an offense against the United States, and the proclamation extended only to offenders against the laws 1 Geering and Richardson v. The United States, 3 Ct. Cl. 165. 2 Stark v. The United States, 4 Ct. Cl. 280; Dubois (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3742, Boutwell's Rep. 128 (claimant knew his purchase of bonds would aid Confederacy). But in Rochereau, ibid. 3739, Boutwell's Rep. 124, nonresident French partner had no knowledge of the purchase of the bond, and his share of the claim was allowed. 3 U. S. v. Padelford, 9 Wall. 531; 4 Ct. Cl. 316. Bates v. The United States, 4 Ct. Cl. 569. * Armstrong v. The United States, 13 Wall. 154; 5 Ct. Cl. 623. Carlisle and Henderson v. The United States, 16 Wall. 147; 6 Ct. Cl. 398. 7 Young v. The United States, 97 U. S. 39; 12 Ct. Cl. 648. 8 Radich v. Hutchins, 95 U. S. 210; see also Moore's Dig. VI, 625. But paying for permission to remove lumber was held, by an equally divided court, "aid and comfort" in the case of Bauriedel, No. 239, before the Spanish Treaty Claims Commission, Explanatory Notes, Briefs, XXIV, 126. Sprott v. U. S., 20 Wall. 459. In Laurent (Gt. Brit.) v. U. S., Feb. 8, 1853, Moore's Arb. 2671, the better ground for the disallowance of the claim would have been that by purchasing church property from the Mexican government, they had rendered aid and comfort to the enemy, and thus engaged in an unneutral transaction. See Lapradelle & Politis' Recueil, I, p. 675. 10 Nicolson (Gt. Brit.) v. The United States, May 8, 1871, Moore's Arb. 3298, Hale, 77. 11 U. S. v. Padelford, 9 Wall. 531. of the United States.1 Nor did a pardon to a citizen, disloyal during the war, restore his right to maintain a claim against the government.2 The Southern Claims Commission required claimants to prove that they had remained "loyal adherents to the cause and the government of the United States during the war," whereas the Act establishing the Court of Alabama Claims required an allegation that they had borne "true allegiance to the United States." By the former commission, neutrality, even when established, was not held to constitute "loyal adherence" to the United States, whereas the Alabama court accepted the negative declaration that claimants had not in any manner aided or assisted the rebellion. The Southern Claims Commission considered the following to be disloyal acts: voting for session or secession candidates; residing or removing within the Confederate lines as a matter of choice; holding office under the Confederacy; service in the Confederate army or navy, personally or by substitute; furnishing supplies to the Confederacy; arming or equipping persons entering the Confederate service; engaging in business intended or calculated to aid the Confederate cause; subscribing to Confederate loans, or selling cotton or other produce to the Confederate government in aid of its finances; or doing any other thing of a nature to aid the Confederate and injure the Union cause.3 § 370. Acts which do not Constitute " Aid and Comfort." The following have been held not to be acts of voluntary aid and comfort: Joining a company formed in a disloyal state to carry out cotton through the blockade, with the permission of the United States; * voluntary patrol duty in a home guard, in the nature of police duty, on the part of one otherwise showed to be loyal; 5 acts not intended as aid and comfort to the enemy and committed under fear and appre 1 Young and Collie v. The United States, 97. U. S. 39. 2 Hart v. The United States, 15 Ct. Cl. 414. 3 7th Gen. Rep. of the Commissioners of Claims, Act of March 3, 1871, H. Misc. Doc. 4, 45th Cong., 2nd sess., 5-6; Rodocanochi Sons & Co. v. U. S., Act of June 23, 1874, Moore's Arb. 2359. 1 hension of danger to the person and property of claimant; 1 removing the family of a loyal citizen surrounded by contending armies to a place of safety, though within the Confederate lines; 2 compulsory detention of the person and property of a loyal citizen in an insurrectionary state, his subsequent sale of property (horses) and the investment of the proceeds in cotton; 3 entering a Confederate arsenal as a workman without pay to avoid conscription, in fact, payment for the appointment, where the loyalty otherwise was established; 4 yielding passive obedience to the de facto Confederate government in civil and local matters; 5 purchase by a non-resident alien of cotton in the disloyal states for ordinary business purposes through a commercial house within the enemy's lines and the acceptance and payment of drafts for the purchase price of the cotton; writing an unsent letter to the head of the Confederate government offering the service of the writer, an alien resident; bribing a Confederate officer by giving him cotton to prevent the confiscation or destruction of the balance; joining in a proposed blockade running enterprise which was not to be operated until the United States gave their sanction, such sanction not having been given; purchase of cotton by a non-resident alien through an agent in the enemy's territory, though he was engaged in blockade running; 10 subscribing money to a blockade running enterprise where it does not appear that the blockade was run or attempted to be run.11 1 Ayres v. The United States, 4 Ct. Cl. 422. 2 Hayden v. The United States, 4 Ct. Cl. 475. 3 Foster v. The United States, 5 Ct. Cl. 412. See also Spain v. The United States, 5 Ct. Cl. 598, these transactions not being in violation of the non-intercourse laws. Koester v. The United States, 5 Ct. Cl. 642. 5 Price v. The United States, 5 Ct. Cl. 706. 7 Medway v. The United States, 6 Ct. Cl. 421. 8 Coogan v. The United States, 7 Ct. Cl. 510. This transaction though invalid under the laws of the Confederacy was not thereby invalid under the laws of the United States. 'Austell v. The United States, 7 Ct. Cl. 599. 10 Collie v. The United States, 9 Ct. Cl. 431; 94 U. S. 258. Blockade running in munitions of war intended for the Confederates would, however, be voluntary aid and comfort. Young v. U. S. (1877), 97 U. S. 39. 11 Hill v. The United States, 8 Ct. Cl. 470. CHAPTER IV FORFEITURE OF PROTECTION BY ACT OF CITIZEN-Con tinued. RENUNCIATION OF PROTECTION EXPRESS RENUNCIATION BY CONTRACT 371. The So-called Calvo Clause. Naturalization abroad is perhaps the most binding form of contractual renunciation of citizenship and protection. A more subtle form of renouncing protection consists in the incorporation in contracts between the local government and a foreigner of a stipulation by which the foreigner agrees to bring his disputes and differences arising out of the contract before the local courts exclusively, with the further express or implied agreement that he renounces his right to call upon his own government for protection in all matters arising out of the contract. This form of contractual renunciation of diplomatic protection arises out of a doctrine advanced by the celebrated South American publicist, Calvo, and in its broadest sense it posits the principle that no nation ought to intervene, diplomatically or otherwise, against another, to enforce its citizen's private claims of a pecuniary nature— a principle which has been resorted to frequently by the South American countries as a preventive measure of defense against the insistent demands of foreign countries for the payment of private claims due their citizens. In Calvo's work on international law, these principles are expressed as follows: "America as well as Europe is inhabited today by free and independent nations, whose sovereign existence has the right to the same respect, and whose internal public law does not admit of intervention of any sort on the part of foreign peoples, whoever they may be." (5th ed., I, § 204, p. 350.) He condemns armed and diplomatic intervention with equal severity (I, § 110, p. 267), "Aside from political motives these interventions have nearly always had as apparent pretexts, injuries to private interests, claims and demands for pecuniary indemnities in behalf of subjects. . . . According to strict international law, the recovery of debts and the pursuit of private claims does not justify de plano the armed intervention of governments, and, since European states invariably follow this rule in their reciprocal relations, there is no reason why they should not also impose it upon themselves in their relations with nations of the new world." (I, § 205, pp. 350-351.) "It is certain that aliens who establish themselves in a country have the same right to protection as nationals, but they ought not to lay claim to a protection more extended. If they suffer any wrong, they ought to count on the government of the country prosecuting the delinquents, and not claim from the state to which the authors of the violence belong any pecuniary indemnity." (VI, § 256, p. 231.) "The rule that in more than one case it has been attempted to impose on American states is that foreigners merit more regard and privileges more marked and extended than those accorded even to the nationals of the country where they reside." (III, § 1278, p. 140.) While the last two propositions were made with specific reference to redress for injuries arising out of civil war and acts of violence, the inference drawn from the whole text, read together with the general principle that foreigners are subject to the local law and must submit their disputes to local courts, has given the Spanish-American countries a basis to assert the doctrine that in his private litigation the alien must exhaust his local remedies before invoking diplomatic interposition. and that in his claims against the state he must make the local courts his final forum. These states do generally, though not always, admit the rule that where there is a denial of justice, recourse to diplomatic interposition is permissible. They have written these principles into their constitutions, statutes and treaties, and in this form they will receive more critical attention in Chapter VII, in which we shall deal with the attempts by municipal legislation and by treaty to limit diplomatic interposition. The whole doctrine of the final jurisdiction of the local courts over the claims of aliens, with a denial of the right to diplomatic recourse, has received the name of the Calvo doctrine. The so-called Drago 1 Calvo, Le droit international, §§ 204-5. On the Calvo Doctrine, see Amos S. Hershey, in 1 A. J. I. L. (1907), pp. 26-45; Percy Bordwell in 18 Green Bag (1906), |