Pearson v. Parson

PARLAUGE, District Judge (after stating tlie facts). It was conceded on the argument that the court has no jurisdiction of this cause ratione personarum. The complainants sought to maintain the-jurisdiction ratione materias hy a claim of right under the treaty of Washington of May 8, 1871, between Great Britain and the United States relative to the “Alabame claims,” in which treaty it is declared that: “A neutral government is bound * * * not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.” The complainants contend that, by reason of this declaration of the treaty, they are entitled to invoke the equity powers of this court for the protection of their property. If the complainant's could be heard to assert here rights personal to themselves in the treaty just mentioned, and if the mules and horses involved in this cause are munitions of war, all of which is disputed by the defendants, it would become necessary to determine whether the United States intended by the above declaration of the treaty to subvert the well-established principle of international law that the private citizens of a neutral nation can lawfully sell supplies to belligerents. . It is almost impossible, to. suppose, a priori,.that the United States would have, done so, [463] ;ind would have thus provided lor the most serious and extensive derangement of and injury to the commerce of our citizens whenever two or inore foreign nations should go to war; and it would, seem that there is nothing in the treaty, especially when its history and purposes are considered, which would warrant the belief that the United States insisted upon inserting therein a new principle of inter national law, from which the greatest damage might result to the commerce of this country, and which was absolutely different from and antagonistic to the rule and policy which the government of this country had ¡heretofore strenuously and invariably followed. The prim iple that neutral citizens may lawfully sell to belligerents has long since been settled in this country by the highest judicial authority. In the case of The Sauctissima Trinidad, 7 Wheat. 340, 5 L. Ed. 454, Mr. Justice Story, as the organ of the supreme court, said: "There is nothing in our laws or in the law of nations that forbids our citizens From sending armed vessels, as well as munitions of war. to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of coniisea-i ion.” See, also, the case of The Bermuda, 3 Wall. 551, 18 L. Ed. 200. 16 Am. & Eng. Enc. Law (2d Ed.) p. 1161, verbis “International Law,” citing cases in support of the text, says: “A neutral nation is, in general, bound not to furnish munitions of war to a belligerent, but there is no obligation upon it to prevent its subjects from doing so: and tieufral subjects may freely sell at home to a belligerent purchaser, or cany to a belligerent power, arms and munitions of war, subject only to the possibility of their seizure as contraband while in transit.” Numerous other authorities on this point could be cited, if it was not deemed entirely unnecessary to do so. The principle has been adhered to by ike executive department of the government from the time when Mr. Jefferson was secretary of si ate to the present day. Mr. Jefferson said in 1793: “Our citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings — the only means,-perhaps, of their subsistence — because a war exists in foreign anil distant countries, in which we have no concern, .would scarcely be expected. It would be lull'd in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not vcipiire from them such an internal derangement in their occupation.” To the same effect are numerous other expressions and declarations of the executive department of the government from the earliest period of the country to the present time. See 3 Whart. Int. Law Dig. par. 391, Lit. “Munitions of Wait” Afiidavits in the cause purport to show that the vessels which make the exportations of mules and horses of which the bills complain are private merchant vessels; that they are commanded by their usual ofticers, appointed and paid by the owners; that they are maimed by their usual private crews, which are also j>aid by the owners; that they are not equipped for war; that they are not in the military service of Great Britain, nor controlled by the naval authorities of that nation; that they carry the mules and horses as they would carry any other cargo; and that the mules and horses are to be landed, not on [464] the territory of the South African Republic or the Orange Free State, but in Cape Colony, which is territory belonging to G-reat Britain. If these affidavits set out the facts truly, it is difficult to see how a cause of complaint can arise. If a belligerent may come to this country and buy munitions of war, it seems clear that he may export them as freight in private merchant vessels of his own or any other nationality, as cargo could be exported by the general public. Another consideration in this cause is whether the allegations of threatened injury to the property rights of the complainants would in any case warrant the interposition of a court of equity. The theory of the complainants is that, if the injunction issues in this cause, the war will cease, but that, if these horses and mules are allowed to go to South Africa, the war will be carried on, and one of the results of its further prosecution will be the destruction of the complainants’ property in South Africa. It is not claimed, of course, that the horses and mules are to be used specially to destroy the property of the complainants. In such cases as the present one, where the aid of equity is invoked to protect property rights, the injury apprehended must be a clear and reasonable one, proximately resulting from the act sought to be enjoined. The injury apprehended by the complainants from the shipping of the mules and horses seems to be remote, indistinct, and entirely speculative. It seems clear that, even if this cause were within the cognizance of this court, there is herein no such connection of cause and effect between the shipment of the animals and the destruction of complainants’ property as could sustain an averment of threatened irreparable injury, and that the averment that the war would cease if the shipments are stopped, which, in the nature of things, can only be an expression of opinion and hope concerning a matter hardly susceptible of proof, could not be made the basis for judicial action. It may be well to notice that there is nothing in this cause upon which could be founded a charge that the neutrality statutes of the United States are being violated. A citation of authorities on this point is deemed unnecessary. While I apprehend fully that the complainants are not claiming through or because of the neutrality statutes, still it would seem that there exists at least a presumption that the United States have been careful to provide in those statutes for the punishment of every breach of neutrality recognized by this country. But the nature of this cause is such that none of the considerations hereinabove set out need be decided, for the reason that a view of this case presents itself which is paramount to all its other aspects, and leads irresistibly to the conclusion that the rule nisi must be denied. That view is that the case is a political one, of which a court of equity can take no cognizance, and which, in the very nature of governmental things, must belong to the executive branch of the government, bio precedent or authority has been cited to the court which, in its opinion, could even remotely sustain the cause of the complainants, bio case has been cited, nor do I believe that any could have been cited, presenting issues similar to those of this cause. The three complainants are private citizens. It is true that the complainant Pierce avers [465] tha.t he is consul general of the Orange Free State; but his demand is exclusively a personal one, and he must be deemed to be suing in his personal capacity. One of the complainants is an alien and a citizen of the Orange Free State. Only one of the complainants is alleged to be a citizen of the United States. They own property in the South African Republic and the Orange Free State, foreign countries now at war with Great Britain. They fear that the war, if continued, will result in the destruction of their property. They believe that, if the shipments of mules and horses from this port are stopped, the war will cease. They claim that, by virtue of a declaration of international law contained in an international treaty to which the foreign countries in which their property is situated were not parties, they have the personal right to enjoin the shipments for the purpose of stopping the war, and thus saving their property from the destruction which they apprehend will result to it from a continuation of the war. When complainants’ cause is thus analyzed, and the nature of the alleged right under the treaty is considered, it is obvious that a court of equity cannot take cognizance of the cause. The main case relied on by the counsel for the complainants is the case of Emperor of Austria v. Day, 3 De Gex, F. & J. 217 (English Chancery Reports), in which the emperor of Austria sought and obtained an injunction to restrain the manufacture in England of a large quantity of notes purporting to be receivable as money in, and to be guarantied by, Hungary. . That action was brought by the emperor of Austria as the sovereign and representative of his nation, tu id the case turned and was decided on considerations entirely different from, and in no manner resembling, those presented in this cause. It may be worth noticing that the counsel for the emperor of Austria freely conceded in the argument of the case that the exportation of munitions of war could not be enjoined. I am clearly of opinion that this cause is not within the cognizance of this court, and for that reason the rule nisi must be denied. BOAR.MAN, District Judge, who sat in this cause with PAR. LANGE, District Judge,, concurs in the opinion.