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, and 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 case is not within the cognizance of this court, and for that reason the rule nisi must be denied.

BOARMAN, District Judge, who sat in this cause with PARLANGE, District Judge, concurs in the opinion.*

2 For an elaborate restatement of the right of a neutral to trade with one or other of the belligerents, see Samuel Pearson v. Allis-Chalmers Company, decided by the circuit court of Milwaukee county, Wisconsin, in 1915. The text of this important judgment is to be found in 11 American Journal of International Law, 883 (1917).

Samuel Pearson, at the time of the principal case, was a citizen of the South African Republic. He subsequently became a naturalized citizen of the United States, and as an American citizen, sought to enjoin the Allis-Chalmers Company from furnishing and transporting munitions to the enemies of Germany for the reasons stated in the following extract from his affidavit:

"That the plaintiff is a citizen of the United States of America, and that he has valuable property interests located within the boundaries of the German Empire; that he is the owner of securities issued by the German Government; that the German Empire is and for some time past has been engaged in war with the countries of Great Britain, France, Serbia, Montenegro, Russia and Japan; that great quantities of ammunition have been and will be consumed, and that one type of ammunition indispensable to the belligerents is a projectile known as shrapnel shell, which is designed for but one purpose,

SECTION 2.-RULE OF 1756

THE EMANUEL.

(High Court of Admiralty, 1799. 1 C. Rob. 296.)

Sir W. SCOTT. This is the case of a ship sailing under Danish colors, and taken with a cargo of salt, on a voyage from Cadiz to Castropel in Gallicia. The ship has been restored, reserving the question of freight and expenses. The cargo has been condemned as the property of the King of Spain, and the question now is, under these circumstances, Whether freight and expenses shall be allowed in this case?

I shall, first, consider this case upon principle; and secondly, upon the foundation of authorities.

First. Where a capture is made of a cargo, the property of an enemy, carried in a neutral ship, the neutral ship-owner obtains against the captor those rights which he had against the enemy. At the same time this principle is not so universal as not to be liable to some exceptions; as, for instance, in the known case of contraband goods.

*

Now the ground upon which it is contended that the freight is not due to the proprietors of this vessel, is, that she is a Danish ship employed in the transmission of Spanish goods, from one Spanish port to another, and so carrying on the coasting-trade of that country. In our own country it has long been the system, that the coastingtrade should only be carried on by our own navigation. I observe, that in all the rage of novel experiment that has dictated the commercial regulations of France in its new condition, this policy is held sacred; it stands enacted, by a decree 21st September 1793, that no goods, the growth or manufacture of France, shall be carried from one French port to another in foreign ships under pain of confiscation. The same policy has directed the commercial system of other European countries; in the ordinary state of affairs, no indulgence is generally

and that is the destruction of human life and property, and 'that the intent of the war now being conducted by said, aforementioned countries against the German Empire is to so cripple said empire by the destruction of the lives of its citizens and its property, both public and private, as to compel the submission of said empire to the future disposition of its national domain or to surrender of its sovereign life as said allies, if victorious, may dispose.'" Page 884.

In an elaborate opinion, Hon. W. J. Turner, Circuit Judge, refused to issue the injunction.

8 Statement of facts and parts of the opinion are omitted.

4 The Mercurius, 1 C. Rob. 288 (1799); The Jonge Jacobus Bauman, 1 C. Rob. 243 (1799): The Ringende Jacob, 1 C. Rob. 89 (1798); The Neptunus, 3 C. Rob. 108 (1800).

permitted to the ships of most other countries to carry on the coasting trade. I think therefore the onus probandi does at least lie on that side; and always makes it necessary 'to be shown by the claimants, that such a trade was not a mere indulgence, and a temporary relaxation of the coasting system of the state in question; but that it was a common and ordinary trade, open to the ships of any country whatever.

Applying that principle to the present case (if I am right in the presumption), I am to infer, that this vessel is carrying on a commerce which, according to the general trading system of Spain, she could not pursue, in consequence of the pressure to which the commerce of Spain has been reduced by the arms of this country; if so, upon what ground is it that she claims freight against the captor on a voyage undertaken for the peculiar accommodation and relief of the enemy, under the distress to which the successful hostilities of the captor's country had reduced him? Is there nothing like a departure from the strict duties imposed by a neutral character and situation, in stepping in to the aid of the depressed party, and taking up a commerce which so peculiarly belonged to himself, and to extinguish which was one of the principal objects and proposed fruits of victory? Is not this, by a new act, and by an interposition neither known nor permitted by that enemy in the ordinary state of his affairs, to give a direct opposition to the efforts of the conqueror, and to take off that pressure which it is the very purpose of war to inflict, in order to compel the conquered to a due sense and observance of justice? Is this so clearly within the limits of impartial and indifferent conduct, that if a neutral ship is taken in an office of this kind, she is entitled to claim against the captor, whom she is thus counteracting and almost defrauding, the very same rights which she possessed against the claimant, to whom she is giving this extraordinary and irregular assistance?

As to the coasting trade (supposing it to be a trade not usually opened to foreign vessels), can there be described a more effective accommodation that can be given to an enemy during a war than to undertake it for him during his own disability? Is it nothing that the commodities of an extensive empire are conveyed from the parts where they grow and are manufactured, to other parts where they are wanted for use? It is said that this is not importing any thing new into the country, and it certainly is not; but has it not all the effects of such an importation? Suppose that the French navy had a decided ascendant, and had cut off all British communication between the northern and southern parts of this island, and that neutrals interposed to bring the coals of the north for the supply of the manufactures, and for the necessities of domestic life, in this metropolis; is it possible to describe a more direct and a more effectual opposition to the success of French hostility, short of an actual mili

tary assistance in the war? What is the present case? It is still more -it is the direct conveyance of a commodity belonging immediately to the king of Spain, for the purpose of public revenue. The vessel is employed not merely in the private traffic of individuals, but in the revenue service of the State. The king of Spain, disabled from employing Spanish vessels in the collection of his revenues, enlists foreign vessels under this necessity. Salt is a royal monopoly in Spain, as it formerly was in France; and it is distributed on the government account to the various provinces. This foreign ship is employed in the distribution, and by the employment becomes an actual revenue cutter of the king of Spain. It should seem to be no very harsh treatment of such a vessel, if, on the capture, she is restored, and is only left to pursue her demand of freight against her original employers. *

THE IMMANUEL.

(High Court of Admiralty, 1799. 2 C. Rob. 186.)

This was the case of an asserted Hamburg ship, taken 14th August, 1799, on a voyage from Hamburg to St. Domingo, having in her voyage touched at Bordeaux, where she sold part of the goods brought from Hamburg, and took a quantity of iron stores and other articles for St. Domingo. A question was first raised as to the property of the ship and cargo; 2dly, supposing it to be neutral property, whether a trade from the mother country of France to St. Domingo, a French Colony, was not an illegal trade, and such as would render the property of neutrals engaged in it liable to be considered as the property of enemies, and subject to confiscation? It was denied that St. Domingo was to be considered in its present state as a French colony. After various observations on these points, farther proof was directed to be made of the property; and permission was given to both parties to produce information as to the state and condition of St. Domingo at that time.

On the 5th of August, 1800, the cause was heard on farther proof.

*

Sir W. SCOTT: This is the case of a ship taken on a voyage originally from Hamburg, first to Bordeaux, where she discharged part of her cargo, and, having taken on board other goods, proceeded to the

"A neutral ship was chartered during the war by a Russian company, who acted in so doing with the permission of the Russian Government, for the purpose of carrying on a trade which was closed in time of peace to foreign vessels. Held that these facts were sufficient to constitute her a ship sailing with a special license from the enemy. Ship and cargo condemned." The Montara, 2 Hurst and Bray's Russian and Japanese Prize Cases (1913) 403. headnote (1906).

• The statement of facts is abridged and parts of the opinion are omitted.

colony of St. Domingo, and was taken in this period of the voyage.

Upon the mere question of property, as it respects all the goods as well as the ship, I see no reason to entertain a legal doubt. Considering them as neutral property, I shall proceed to the principal question in the case, namely, whether neutral property, engaged in a direct traffic between the enemy and his colonies, is to be considered by this court as liable to confiscation. And first, with respect to the goods.

Upon the breaking out of a war, it is the right of neutrals to carry on their accustomed trade, with an exception of the particular cases of a trade to blockaded places, or in contraband articles (in both which cases their property is liable to be condemned), and of their ships being liable to visitation and search; in which case however they are entitled to freight and expenses. I do not mean to say that in the accidents of a war the property of neutrals may not be variously entangled and endangered; in the nature of human connections it is hardly possible that inconveniences of this kind should be altogether avoided. Some neutrals will be unjustly engaged in covering the goods of the enemy, and others will be unjustly suspected of doing it; these inconveniences are more than fully balanced by the enlargement of their commerce; the trade of the belligerents is usually interrupted in a great degree, and falls in the same degree into the lap of neutrals. But without reference to accidents of the one kind or other, the general rule is, that the neutral has a right to carry on, in time of war, his accustomed trade to the utmost extent of which that accustomed trade is capable.

Very different is the case of a trade which the neutral has never possessed, which he holds by no title of use and habit in times of peace, and which, in fact, can obtain in war by no other title, than by the success of the one belligerent against the other, and at the expense of that very belligerent under whose success he sets up his title; and such I take to be the colonial trade, generally speaking.

What is the colonial trade generally speaking? It is a trade generally shut up to the exclusive use of the mother country, to which the colony belongs, and this to a double use-that, of supplying a market for the consumption of native commodities, and the other of furnishing to the mother country the peculiar commodities of the colonial regions; to these two purposes of the mother country, the general policy respecting colonies belonging to the states of Europe, has restricted them. With respect to other countries, generally speaking, the colony has no existence; it is possible that indirectly and remotely such colonies may affect the commerce of other countries.

The manufactures of Germany may find their way into Jamaica or Guadaloupe, and the sugar of Jamaica or Guadaloupe into the interior parts of Germany; but, as to any direct communication or advantage

SCOTT INT.LAW-59