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ing the master and certain other persons, the defendants in the bill, from loading the ship with the animals in question.
It was conceded on the argument that the court had no jurisdiction of the cause ratione personarum, but it was maintained that there was jurisdiction ratione materiæ, by virtue of the treaty between the United States and Great Britain of May 8, 1871, relating to the Alabama elaims, in which it is declared: "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."
Held (1) that this clause was not intended "to subvert the wellestablished principle of international law that the private citizens of a neutral nation can lawfully sell supplies to belligerents;" (2) that according to affidavits in the case the vessel was not equipped for war nor in the military service of Great Britain, nor controlled by the naval authorities of that nation, and that if a belligerent might come to the country and buy munitions of war it seemed clear that he might "export them as freight in private merchant vessels of his own or any other nationality, as cargo could be exported by the general public;" (3) that the injury apprehended by the complainants from the shipping of the animals seemed to be remote, indistinct, and entirely speculative, while the averment that the war would cease if the shipments were stopped was only an expression of opinion and hope which could not be made the basis of judicial action; (4) that there was nothing in the case "upon which could be founded a charge that the neutrality statutes of the United States are being violated," and that there existed a presumption that the United States had provided in those statutes for the punishment of every breach of neutrality which it recognized ; and (5) that above all other considerations the case was a political one, of which a court of equity could take no cognizance, and which in the nature of governmental things must belong to the executive branch.
Pearson v. Parson (1901), 108 Fed. Rep. 461.
The court, in the course of its opinion, said: "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, and the case turned and was decided on considerations entirely different from, and in no manner, reseñbling, those presented in this cause. It may be worth noticing that the counsel for the Emperor of Austria freely conceded in the arguH. Doc. 551-vol 7-62
ment of the case that the exportation of munitions of war could not be enjoined." (Id. 465.)
February 1, 1902, Mr. Samuel Pearson, in behalf of the South African Republic, then at war with Great Britain, addressed to the President a letter, in which he said:
“I affirm that at the port of Chalmette, a few miles below the city of New Orleans, a British post has been established; and men and soldiers are there assembled and are there daily engaged in warlike operations, and are there for the purpose of the renewal and augmentation of military supplies and for the recruitment of men. "The attention of the courts has been called and an appeal made to them, and the United States circuit court for the eastern district of Louisiana, in the case of Pearson v. Parson (108 Fed. Rep., p. 461), declared that this matter was not in the cognizance of the court, expressly declaring that the matter was one that can be dealt with only by the executive branch of the government.'
"No concealment has been made of the facts I have stated. The war is carried on by officers in the army of Edward VII openly at Port Chalmette in all respects. They do not appear in uniform. Will I be permitted to strike these with the force I might assemble here? I pray your excellency to either put an end to this state of affairs or permit me to strike here one blow.
"With every respect for the authority of the United States Government, may I not consider your silence or inaction the equivalent of consent for me to stop the further violation of the neutrality laws at this port, or to carry on war here for the burghers."
A copy of this letter was sent by Mr. Hay, Secretary of State, to the Louisiana authorities, by whom it was referred to the sheriff of St. Bernard Parish, in which the port in question lies. The sheriff, in reply, in a letter to the governor of Louisiana, said:
"I beg to state that the extract from the letter of Mr. Samuel Pearson, reproduced in your letter, does not contain a correct statement of the facts existing in the parish of St. Bernard, except as to the following points:
"Mules and horses have been and are now being loaded at Port Chalmette, in the parish of St. Bernard, and, as I am informed, for the British Government, either directly or indirectly, but the loading of said animals, as well as the preparing of the ships for the reception of same, is done by local men, all of whom, I believe, are citizens of the United States. In fact, I have been informed that at present the loading of said animals is being done by the longshoremen of the city of New Orleans. The work, I understand, is supervised by Englishmen, who may or may not be officers of the British army. Certainly there is no one there in uniform.
"There is no such thing as a British post with men and soldiers established at Port Chalmette. So far as the recruiting of men is concerned, I am sure and can certify that it is not being done in the parish of St. Bernard. As I understand, the only men taken on the ships are the muleteers, who are employed in the city of New Orleans. I understand they are employed by the contractors; they having an office for that purpose in said city, and said men never stop on St. Bernard soil, being taken aboard the steamships when in midstream by a tug which starts from the wharves of the city of New Orleans.
In so far as the danger of there being any trouble between the English officers and the Boer sympathizers at Chalmette, I do not believe that it will occur, but even if it does, I can vouch that it will soon be suppressed by the officials of the parish of St. Bernard.
"I have always endeavored to enforce obedience to the laws of this State, as well as to the laws of the United States, and therefore should you inform me that said shipments are contrary to the law I will certainly prevent any further violations of the said law." (H. Doc. 568, 57 Cong. 1 sess.)
"I have the honor to acknowledge the receipt of your letter of the 11th instant, in which you quote a letter received from Doctor Hendrik Muller, envoy extraordinary of the Orange Free State, dated The Hague, November 28 last, in which he calls your attention to the alleged shipment of material, contraband of war, by the English Government on a large scale from the United States, maintains that such shipment is contrary to the law of nations, and suggests your remonstrating with this Government against the continuance of such irregularities.
"In reply I have the honor to quote from 1 Kent's Commentaries, page 142, concerning the well-established doctrine as to the law of. nations on the subject. Chancellor Kent said:
"It was contended on the part of the French nation in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war, to the belligerent powers. It was successfully shown, on the part of the United States, that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry, themselves, to the belligerent powers, contraband articles, subject to the right of seizure, in transitu. The right has since been explicitly declared by the judicial authorities of this country.'
"Mr. Justice Story, in the case of The Santissima Trinidad (7 Wheaton, 340), used the following language:
"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 confiscation.'
"In the case of The Bermuda, 3 Wallace, 514, Chief Justice Chase said:
"Neutrals in their own country may sell to belligerents whatever belligerents choose to buy. The principle exceptions to this rule are, that neutrals must not sell to one belligerent what they refuse to sell to the other, etc.
"An examination of Wharton's Digest of International Laws, section 391, will make it clear that the Executive Departments of this Government from the earliest period have maintained the correct
ness of the doctrine stated by Chancellor Kent, and that, in this position, they have been supported by the decisions of the courts of the United States and by the opinions of eminent authorities on international law.
"Under the circumstances, therefore, and in view of the fact that the law on the subject in the United States is well settled, the Department does not consider it necessary to cause an investigation as to the correctness of the facts alleged by Doctor Muller."
Mr. Hay, Sec. of State, to Mr. Pierce, Dec. 15, 1899, MS. Notes to Foreign
"If the sale of munitions of war is to be held a breach of neutrality, instantly upon the declaration of war between two belligerents, not only the traffic by sea of all the rest of the neutral powers of the world would be exposed to the inconveniences of which they are already impatient, but the whole inland trade of every nation of the earth, which has hitherto been free, would be cast into the fetters. It would give to the belligerent the right of interference in every act of neutral domestic commerce, till at last the burden would be so enormous that neutrality itself would become more intolerable than war, and the result of this assumed reform, professing to be founded on "the principles of eternal justice," would be nothing less than universal and interminable hostilities.' (Sir W. Harcourt, Historicus, 134.) For, not only the vendor of the iron would have to be prevented from selling to the vendor of the gun, but the miner and machinist would have to be prevented from working for the vendor of the iron.. A neutral sovereign, therefore, would have either to stop all machinery by which munitions of war could be produced for belligerent use, or expose himself to a call for whatever damages his failure so to do might have caused either belligerent. Under such circumstances it would be far more economical and politic to plunge into a war as a belligerent than to keep out of it as a neutral.
"The mere act of furnishing by the subject of a neutral state a belligerent with munitions of war, does not involve such neutral state in a breach of neutrality. (1) Between selling arms to a man and indictable participation in an illegal act intended to be effected by the vendee through the instrumentality of such arms there is no casual connection. The miner or manufacturer, to appeal to an analogous case, may regard it not only as possible, but as probable, that his staples, when consisting of weapons or of the materials of weapons, may be used for guilty purposes, but neither miner nor manufacturer becomes thereby penally responsible. (2) To make the vendor of munitions of war punishable would make it necessary to impose like responsibility on the manufacturer; and if on the
manufacturer, then on the producer of the raw material which the manufacturer works up. In each case the thing made or sold is one of the necessities of war. In each case the producer or vendor knows that the thing produced or sold will probably be used for warlike purposes. Hence, in times of war, not only would neutral sales of munitions of war become penal, but penal responsibility might be attached to the production of any of the materials from which such weapons are manufactured. (3) Nor would this paralysis be limited to periods of war. A prudent Government, long foreseeing a rupture, or preparing in secret to surprise an unprepared foe, might take an unfair advantage of its adversary, were this permitted, by purchasing in advance of the attack all munitions which neutral states might have in the market; but, on the theory before us, a neutral state could not permit this without breach of neutrality, since to permit such a sale would be to give a peculiarly unfair advantage to the purchasing belligerent. Hence, if such sales are indictable in times of war, they are à fortiori indictable in times of peace. Why would a foreign nation, it might well be argued, want in times of peace to buy Armstrong guns, or ironclads, unless to pounce suddenly down on an unprepared foe? No munitions of war, therefore, could be sold in any country unless to its own subjects and for its own use; and countries which can not produce the iron or coal necessary for the manufacture of artillery or ironclads, would, if no nation can furnish munitions of war to another, will have to do without artillery or ironclads. (4) To establish a national police which could prevent the sale of such staples would impose on neutral states a burden, not only intolerable, but incompatible with constitutional traditions. It might be possible in a land-locked province like Switzerland; it might even be possible in islands of the size of Great Britain; but in a country so vast as the United States, and with an ocean frontier so extended, it would be impossible to establish a police that could preclude such exportation without vesting in the National Government powers and patronage inconsistent with republican institutions, and so enormously expensive as to make it more economical to interpose in a war as a belligerent than to watch such war as a neutral. For these and other reasons the United States Government has insisted on the right of a neutral to send munitions of war to a belligerent; and this position was taken by President Grant in his proclamation of August 22, 1870. The right was stoutly contested, however, by Germany, while it was maintained by both England and the United States."
Note of Dr. Francis Wharton, in Wharton's Int. Law Digest. III. 516, § 391, citing Wharton's Crim. Law (9th ed.), § 1903; 1 Kent's Com. 142; 6 Webster's Works, 452.