་་ ington requested him to call at the legation and there assured him that if he would not further prosecute the claim before Congress or the Department of State it would be paid promptly and "liberally by Japan immediately upon the passage of the bill for the return of the indemnity. The attorney declared that, relying upon these assurances, he took no further steps in the matter. The Japanese legation denied that any such promise was made either by itself or by anyone authorized to speak for it. This denial was controverted by the affidavit of the claimant's attorney and of two other persons, who were understood to have been employed at times by the legation. Without discussing these contradictions, the Department of State instructed the American minister in Japan, in July, 1885, to lay the case before the Japanese Government, in order that it might have an opportunity to consider its equities, and suggested that the whole matter might be referred to an arbitration on the merits. The Japanese Government declined the suggestion, and the United States, after a reexamination of the case, decided that it should not be further pressed. The claim appearing to be defective on the merits, the Department of State held that no new ground of claim could be derived from conversations with the Japanese minister or with any of his alleged agents. "At the time these conversations are alleged to have taken place, the Japanese indemnity fund was," said the Department of State," in the possession of this Government, and its disposition was then subject to the action of Congress. This being so, it was the duty of citizens of the United States to present their claims before that body, and any withdrawal, such as has been alleged, of a claim from its consideration, thus forestalling its action, would, if encouraged or approved, be highly detrimental to the public interest. An agreement between a foreign minister and a citizen of the United States, under such circumstances, and for the purpose of influencing Congressional action, would not be one which, even if evidenced in writing, could be recognized by this Government. Under reversed conditions this Government could not for a moment entertain the proposition that it was in any way bound by such a transaction. Such an agreement, made in the hope of terms more 'liberal' than could be regularly obtained, can not be made the basis of an international claim. Nor can evidence of such an agreement be admitted to overcome the act of Congress directing the return of the indemnity fund, and not providing for the payment of the Monitor claim. It is a rule of law universally recognized and enforced that evidence of extrinsic facts (not rules of law or acts of legislation) occurring prior to the passage of a bill can not be resorted to to prove intention of the legislature or to explain its action." Mr. Bayard, Sec. of State, to Mr. Cowie, April 13, 1888, For. Rel. 1888, "The good offices of the Department, which constitute the form of its intervention in cases of contract, are not granted in such cases as a matter of course. Their employment is conceded in the exercise of a sound discretion, and only when the claim in behalf of which they are invoked is of so meritorious a character as to warrant the Department in giving its approval. Clearly, therefore, this Department is precluded from pressing in any manner upon the attention of a foreign government a claim growing out of transactions obnoxious to the laws of the United States, or possessing other features that forbid its approval and promotion by the official representative of this Government." Mr. Bayard, Sec. of State, to Messrs. Morris and Fillette, July 28, 1888, 169 MS. Dom. Let. 263. The Department of State was asked to support the claim of a citizen of the United States for services rendered, as he alleged, under a contract with President Guzman Blanco in order to secure a revision of the awards of the mixed commission under the treaty between the United States and Venezuela of 1866. The Department replied: "The Government of the United States can not recognize a contract alleged to have been entered into by a citizen of the United States with the executive or agent of another government for the purpose of securing the setting aside of a treaty between this and such other government. The services which you claim to have performed related chiefly to the procurement of action on the part of Congress, these services being performed for the Government of Venezuela. Under the Constitution of the United States, the only organ of communication between this and foreign governments is the President. This Department can not look with anything but disapprobation upon a foreign government seeking to approach a branch of the Government of the United States through another channel. It may be stated as a fact, although it is not material, that at the very time at which you allege that your employment began, this Department was demanding of the Government of Venezuela the execution of the treaty of 1866." The Department declined to take any action whatever towards pressing the claim against the Government of Venezuela. Mr. Blaine, Sec. of State, to Mr. Matchett, March 19, 1891, 181 MS. Dom. See, to the same effect, Mr. Bayard, Sec. of State, to Mr. Cowie, April 13, No nation gives herself a claim to call upon other nations for a strict observance of their law who does not observe it strictly upon her part, not only in the particular class of cases in which she makes the call, but throughout the whole system of that law. Wirt, At. Gen., 1821, 1 Op. 509, 511. (2) LOSS OF RIGHT TO NATIONAL PROTECTION. § 975. An individual may, without forfeiting his citizenship, so conduct himself as to lose to a certain extent the right to national protection. This subject is fully discussed elsewhere. See supra, §§ 474-483; also, Moore, Int. Arbitrations, III. 2729 et seq. "Lord Castlereagh distinctly said that the grounds on which these two subjects [Arbuthnot and Ambrister] had been considered by the Cabinet as having forfeited the rights of protection from their Government were, that they had identified themselves, in part at least, with the Indians, by going amongst them with other purposes than those of innocent trade; by sharing in their sympathies too actively when they were upon the eve of hostilities with the United States; by feeding their complaints; by imparting to them counsel; by heightening their resentments, and thus at all events increasing the predispositions which they found existing to the war, if they did not originally provoke it." Mr. Rush, minister at London, to Mr. Adams, Sec. of State, Jan. 25, 1819, An inquiry having been made by the United States consul at Alexandria, Egypt, as to whether the protection of the consulate could be claimed by citizens of the United States in the service of the Khedive of Egypt, who, although they were graduates of the Military Academy at West Point, or the Naval Academy at Annapolis, "were in the service of the insurgents during the late civil war" in the United States, the Department of State replied: "It is conceived to be the duty of this Government impartially to protect all citizens abroad in conformity with treaties and the public law. No exception can properly be made in regard to persons belonging to the classes to which you refer, unless that exception shall be required by some constitutional provision or statutory enactment. It is believed there is none applicable in this instance." Mr. Fish, Sec. of State, to Mr. Butler, Oct. 5, 1871, MS. Inst. Barbary Mr. Fish went on to say, however, that, as it was represented that the In the case of the claim of William J. Hale against the Argentine Republie, a claim that was ultimately settled, it was at one time alleged that the claimant, who went from New Orleans to the Argentine Republic in 1865, had been "an outspoken disunionist and rebel." (H. Ex. Doc. 168, 48 Cong. 1 sess. 6, 7-8, 21.) 66 Congress has not seen fit to enact legislation to put an end to the holding of slave property in foreign countries, or withdrawing the protection of the United States therefrom. "It is quite true also that citizens of the United States might in most cases do better for their own country by living in it, but the same freedom and liberality which welcomes strangers permits our own citizens to go elsewhere, when climate, adventure, or the expectation of profit offer advantages in their eyes; and I know of no authority or practice by which the executive officers of the United States are at liberty to distinguish among our citizens resident or temporarily abroad, and to deny to some, and to grant to others, the protection of their Government." Mr. Fish, Sec. of State, to Mr. Cushing, min. to Spain, May 22, 1876, MS. (3) CENSURABLE CONDUCT OF CLAIMANT. $976. "To international claims the rules of general jurisprudence in this relation apply as follows: A party to a malicious wrong cannot recover from another for damages there from resulting to himself. A person whose negligence is the immediate cause of a negligent injury to himself cannot recover from another damages for such injury." Wharton, Int. Law Digest, § 243, II. 700. "Nations can not afford to have the intercourse which the interests of their citizens require to be kept open, subjected to the annoyances and risks which would result from the admission of fraud or duplicity into such intercourse. It has therefore become a usage, having the authority of a principle, in the correspondence between enlightened governments, in relation to the claims of citizens or subjects, that any deception practiced by a claimant upon his own government in regard to a controversy with a foreign government, for the purpose of enhancing his claim, or influencing the proceedings of his govern ment, forfeits all title of the party attempting such deception to the protection and aid of his government in the controversy in question, because an honorable government cannot consent to complicate itself in a matter in which it has itself been made or attempted to be made the victim of a fraud, for the benefit of the dishonest party." Mr. Seward, Sec. of State, to Lord Lyons, British min., May 30, 1862, MS. Notes to Gr. Brit. IX. 187. "On the general question of turpitude of cause of action as barring the present claim, I am now prepared to give an emphatic, and, I 6 trust, final decision. Even were we to concede that these outrages in Haytian waters were not within Haytian jurisdiction, I do now affirm that the claim of Pelletier against Hayti, on the facts exhibited, must be dropped, and dropped peremptorily and immediately, by the Government of the United States. The principle of public policy,' said Lord Mansfield, in Holman v. Johnston, Cowper's Rep., 343, ' is this: Ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.' Ex turpi causa non oritur actio; by innumerable rulings under the Roman common law, as held by nations holding Latin traditions, and under the common law as held in England and the United States, has this principle been applied. The lex fori determines the question of turpitude; and nowhere, and with better reason, has the slave-trade been stamped with such an infamy and turpitude as in England and the United States." Report of Mr. Bayard, Sec. of State, to the President, Jan. 20, 1887, For. (4) QUESTION OF UNNEUTRAL TRANSACTION. $ 977. With reference to a steamer and a steam tug chartered by a citizen of the United States to the Haytian Government "as auxiliaries to military and naval operations for the suppression of an insurrection against its authority," Mr. Fish said: "A vessel of the United States voluntarily entering into the service of a foreign power in aid of military or naval operations must be regarded as relying exclusively upon the protection of that power and as renouncing while such employment continues any claim to the protection of the United States." Mr. Fish, Sec. of State, to Mr. Murray, Dec. 7, 1869, 82 MS. Dom. Let. 453. The allowing a vessel bearing the flag of the United States to take part in warlike operations against a government with which the United States is at peace is a violation of the spirit of our neutrality statutes. Mr. Fish, Sec. of State, to Mr. Marsh, Jan. 29, 1877, MS. Inst. Italy, II. 11. The Department of State will not present to a foreign government a claim based on transactions involving a violation of the neutrality of the United States. Mr. Bayard, Sec. of State, to Messrs. Morris and Fillette, July 28, 1888, 169 MS. Dom. Let. 263. |