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Repeatedly in the oral argument and in his brief, the learned counsel for the plaintiff in this case states that the plaintiff brings this action to protect himself from pecuniary loss, and that upon any other theory he cannot maintain his action. Both the plaintiff's attorneys and the counsel who is with him upon the brief are too eminent in their profession to seriously contend that the court (the judicial branch of the government) is vested with power and authority to modify treaties and rules of international law; yet they insist that this court should decide this application in favor of the plaintiff as furthering the objects and purposes of the litigation "to bring about a speedy termination of this terrible conflict."

To grant the relief sought by the plaintiff is to judicially interfere with the defendant exercising a commercial right, political in its nature and expressly recognized and protected by the executive department of our government. The division of this government into the legislative, executive and judicial departments is a distinguishing feature of our American policy, and it is essential to its existence that each of these departments shall be independent of the other. This is fundamental and organic. It would be just as dangerous to its stability for the judicial department to override the others as for the executive or the legislative departments so to do. The end sought to be obtained by this plaintiff is admittedly to enjoin the defendant from the exercise of a right not in any sense appertaining to him as a citizen of this country. The right of the defendant as a subject of the United States to manufacture and sell contraband articles, with the risk of having the goods condemned if captured, has been recognized by all the nations of the earth since the administration of President Washington, as a practice violative of neither the laws of nations nor the standards of neutrality. The right of neutral individuals to trade with any of the belligerents is a question dealing primarily with privileges recognized and prescribed by the tenets of international law, the performance, regulation and protection of which rests solely with the executive department. If the judiciary, even remotely or indirectly, should invade the field of any such right, it would thereby interfere with, if not deny, to the subjects of this country the exercise of those prerogatives which are expressly guaranteed to them through the executive department. If the judiciary could, by the exercise of any jurisdiction, grant the relief, directly or indirectly, which is ultimately prayed for in the case at bar, then its decree would be, in effect, a judicial man

date to the executive department of our government that it may deny to the people of this country the enjoyment, as well as the exercise, of those political privileges which, from time immemorial, have been guaranteed by the nations of the earth to the subjects of every neutral state.

In the discharge of their duties courts must religiously confine themselves to the exercise of the judicial function, irrespective of whether the result reached squares with the court's view of national or international morality, or the judge's personal view of public or private sentiment. If the principles of international law, the commands of treaties, which are the law of the land, or the constitutional limitations placed upon the judiciary under our form of government, be regarded as vicious, confusing or embarrassing, the remedy must be sought elsewhere than in the courts.

As illustrating these general principles that each department of our government has the right to administer the duties imposed upon it, I refer to Mississippi vs. Johnson, 4 Wallace 475, which was a bill to enjoin the President of the United States and the Secretary of War from carrying into effect in the State of Mississippi certain "noxious provisions" of the Reconstruction Act of 1867. The Supreme Court of the United States, after denying that it possessed any jurisdiction to enjoin the President in the performance of an executive and political duty, speaking through Mr. Chief Justice Chase, used the following terse and applicable expression:

An attempt on the part of the judicial department of the government to enforce the performance of such duties by the president might be justly characterized in the language of Chief Justice Marshall as "an absurd and excessive extravagance."

Counsel for the plaintiff readily conceded upon the argument that unless there is actionable wrong done or threatened by the defendant, no action in equity exists. War, to-day, is recognized by all nations, as a legal act, when it is declared and conducted according to the rules of international law. When nations of the earth are ready to condemn war and accept the decision of an international court in lieu thereof, then the principle here urged by the plaintiff will become one of the governing rules of man, and any one thereafter engaged in committing or furthering a state of war will be doing an act prohibited by the law of nations. It, therefore, follows that citizens of a neutral govern

ment who have the right to trade with a belligerent and furnish arms and munitions of war, cannot be said to be engaged in doing an unlawful and immoral act in view of the well recognized fact that for so many years such conduct has been recognized and permitted by treaty and well settled principles of international law. It is the convention of nations that makes international law, and not the wishes or decisions of the courts. The courts have the duty of construing the rules, as laid down by the nations in their conventions, out of which arise the principles governing them in their relations with each other; but the courts cannot, in the face of the well settled principles of international law as here indicated, hold or conclude that the doing by a citizen of an act which the executive branch of the government recognizes in the light of the law of nations to be legal and lawful, is an unlawful and immoral act of such a character as to give rise to that species of actionable wrong without which the jurisdiction of a court of equity cannot attach.

Passing the proposition that upon the facts stated the plaintiff has a complete and adequate remedy at law if it appears that he has sustained an actionable wrong, we must inquire whether the facts which he alleges to exist constitute a cause of action in equity. Counsel has argued with great force that the act of war is an immoral act, that a conspiracy to aid an immoral act may be made the foundation of a suit to prevent its commission. He has described with graphic power the horrors of war, and appealed to the higher instincts of man, with which sentiments this court, together with the great body of the American people agree.

Again, it is a rule of law which governs both an action in equity and an action at law in this state, that one who seeks to recover for a conspiracy must show that he has sustained damage; that the damage which he has sustained is the proximate result of the acts or threatened acts of the defendant.

The plaintiff, a citizen of the United States, maintains in his affidavit that he is the owner of securities of the German Empire; that, if the war continues, his securities will diminish in value, and that the furnishing of shrapnel shell to the countries at war with Germany will cause prolongation of the war, and depreciation of his securities, and consequent loss to him. The mere statement of the fact seems to the court an answer to the contention of the plaintiff. In such a case 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 seems to be remote, indistinct, and entirely speculative. When an injury may be said to be the proximate cause of the damage to another has been many times defined by the Supreme Court of the State of Wisconsin. The allegations of this affidavit fall far short of showing such casual connection between the injury complained of and the damages apprehended by the plaintiff.

The allegation that the war would cease if the shipment of shrapnel shell is stopped is only an expression of opinion, hope, or expectation, and is not susceptible of proof, and cannot be made the basis of judicial action.

In order that this court may interfere to prevent the examination of the defendant, it must appear from the facts stated in the affidavit that the plaintiff has no cause of action against the defendants; in other words, the affidavit is not required to state a cause of action, but if it appears from it that he may have a cause of action, the court cannot restrain the examination.

In view of the decision of the Supreme Court of Wisconsin, in State vs. T. M. E. R. and L. Co., 136 Wis., 179–192, holding that "the courts . . . when the futility of the alleged attempt to institute a suit is manifest, should not only prevent an examination but should dismiss the ostensible actions," it therefore becomes the duty of the court here, in view of the conclusion reached, to prohibit the examination and direct the dismissal of the action.

Dated, Milwaukee, Wis., May 29, 1915.
By the court:

W. J. TURNER,

Circuit Judge.

BOOK REVIEWS AND NOTES

La Liberté des Mers. Le Blocus de l'Allemagne. La Guerre SousMarine. By Dr. R. de Villeneuve- Trans. Paris: A. Pedone. 1917. pp. 103.

Though the exact date is not mentioned, this book seems to have been written but a few weeks prior to the entry of the United States into the great European conflict. One would conclude from the author's introduction that his purpose was to discuss the "freedom of the seas" in order to determine how far the doctrine in its heretofore generally accepted significance does or does not conform to the sense in which it has been employed in Germany by Bethmann-Hollweg and others. But the author, while sensing a divergence, does not greatly enlighten us upon its nature or probable causes. He leads us through a brief history of attempted preemptions of parts of the seas in past times, in peace and war, and discusses the developments of the rules of blockade and contraband down to and including the Second Hague Conference and the Declaration of London. He then outlines chronologically the steps taken in the present war for the blockade of the enemy by the various belligerents and discusses in the light of previously accepted international law the British Orders in Council and the proclamations of the German Government.

His conclusions condemn the German submarine warfare conducted against neutrals and belligerents alike as simple piracy. This leads him to consider the official attitude of the United States, the one powerful neutral yet remaining at the time. He condemns the successive notes of President Wilson, however laudable in motive, upon the sinking of the Lusitania and the Sussex, because based too generally upon the undefined principles of justice and humanity rather than upon the precise texts and accepted rules of international law.

The purely legal questions are discussed with clarity and understanding, but unfortunately the author leads his argument into a general indictment against the United States for its failure to participate on the side of the Allies. This part of the book is considerably marred by some

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