[Footnote 34: Pearson et al. _v_. Parson et al., United States Circuit Court, Eastern District of Louisiana; also H.R., Doc. 568, 57 Cong., 1 Sess., p. 20.]

The affidavit of R.J. Tourres showed that he had served on the ship _Milwaukee_. He averred that the ship's articles were signed by him before the vice-consul of the British Government; that he was finally referred to an officer of the English army for duty and acted under his orders during the voyage from New Orleans to Cape Town; that when the vessel was not allowed to land its cargo at that place on account of the plague the consignment of horses and mules for the British army was delivered at Durban to English officers in uniform; that he was not allowed to go ash.o.r.e except upon the condition of signing with the recruiting officer and joining the British army; that during the entire voyage a British military officer in uniform controlled the ship's crew; and that among the men the _Milwaukee_ was known as a transport under the direct command of regularly detailed officers of the English army.[35]

[Footnote 35: Sworn to before notary public Mch. 21, 1902. H.R., Doc.

568, 57 Cong., 1 Sess., p. 21.]

The testimony of a number of other witnesses sworn before the commissioner for the eastern district of Louisiana showed that the wages of the men employed upon the ship _Montcalm_ had been refused by the captain unless they would agree to enlist in the British army, but as American citizens they had refused to enlist and had demanded the wages due them under the ship's articles. August Nozeret, an American citizen, foreman of a corps of muleteers on board the _Montcalm_, testified that he was told by the ship's officers that the only way to secure his discharge at Port Elizabeth was to have a recruiting officer vouch for his enlisting in the British army; and that he complied with this demand and escaped enlistment only by pretending to be physically unable to count the number of perforations in a card when required to do so as a test of sight at the recruiting office. The affiant was able to say from his own personal knowledge that certified discharges were not given unless the men were willing to enlist in the English army.[36] An abundance of other evidence to the same effect was produced, and it was shown that both the _Montcalm_ and the _Milwaukee_ were under the direct control of the British war authorities. Both had their official numbers painted from their hulls before entering the Portuguese harbor of Beira.

[Footnote 36: Cramer et al. _v_. S.S. _Montcalm_, United States District Court, Eastern District of Louisiana, in Admiralty, No. 13,639; also H.R., Doc. 568, 57 Cong., 1 Sess., pp. 22-23.]

The evidence which was thus placed before the President would seem to show that the spirit at any rate of the neutrality laws of the United States[37] had been violated, and that this violation had been systematically carried out by the British Government and not by individual citizens merely as a commercial venture.

[Footnote 37: Revised Statutes, t.i.tle LXVII, Sections 5281-5291, inclusive.]

The first section of the neutrality laws which were pa.s.sed by Congress in 1818 defines the offense of accepting a foreign commission and lays down the penalty for such an offense. The second section forbids any person within the territory of the United States to enlist in a foreign service "as soldier, or as a mariner, or seaman, on board of any vessel of war, letter of marque, or privateer." The three following sections prohibit the arming of a vessel to cruise against a people at peace with the United States, or against the citizens of the United States, or the augmentation of the force of any foreign vessel of war. The next prohibits military expeditions of any kind. This section reads:

"Every person who, within the territory or jurisdiction of the United States, begins, or sets on foot, or provides or prepares the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince, state, colony, district or people, with whom the United States are at peace, shall be deemed guilty of a misdemeanor, and shall be fined not exceeding $3,000, and imprisoned not more than three years."[38]

[Footnote 38: Sec. 5286.]

Section 5287 provides for the enforcement of the foregoing provisions.

It leaves the cognizance of all complaints in the hands of the several district courts, but empowers the President to employ the land and naval forces to enforce all of the restrictions embodied in the neutrality provisions. The following section empowers the President to compel foreign vessels "to depart the United States in all cases in which, by the laws of nations, or by the treaties of the United States they ought not to remain within the United States," Section 5289 requires that a foreign armed vessel shall give bond on clearance. Section 5290 empowers the collectors of the customs to detain foreign vessels: "The several collectors of the customs shall detain any vessel manifestly built for warlike purposes, and about to depart the United States, the cargo of which princ.i.p.ally consists of arms and munitions of war, when the number of men on board, or circ.u.mstances render it probable that such vessel is intended to be employed by the owners to cruise or commit hostilities upon the subjects, citizens or property of any colony, district or people with whom the United States are at peace, until the decision of the President is had thereon, or until the owner gives such bond and security as is required of the owners of armed vessels by the preceding section." Section 5291 defines the construction to be put upon the neutrality laws. They are not to be construed to extend to any subject or citizen of any foreign State who is only transiently within the United States, nor directly to be construed in such a way as to prevent the prosecution or punishment of treason, or of any piracy defined by the laws of the United States. Possibly the alleged unneutral acts in the territorial waters of the United States did not fall within the strict letter of the restrictions contained in these laws. But if the provisions of 1818 are construed so as to require the maintenance of a perfect neutrality it would seem that they were evaded in the transactions which were permitted at the port of New Orleans.

In this connection the neutrality clause of the Treaty of Washington is of interest. This treaty was signed in 1871 by Great Britain and the United States and is ill.u.s.trative of the requirements of neutrality as understood by these two nations should either be at war with a third party. For the immediate purposes of war the allied republics of South Africa by the fact of their recognized belligerent status possessed rights equal in international law to those held by Spain or by the United States with reference to third powers during the Spanish-American War. On April 26, 1898, the day after this war was declared, the British declaration of neutrality referred to the Treaty of Washington as embodying the terms upon which a neutral att.i.tude should be observed: "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 of arms, or the recruitment of men, ...

to exercise due diligence in its own ports and waters, and as to all persons within its own jurisdiction, to prevent any violation of the foregoing obligations and duties,"[39]

[Footnote 39: Art. VI; London Gazette Extraordinary, April 26, 1898; For. Rel., 1899, pp. 865-866.]

Illegal enlistment was clearly defined as understood by Great Britain: "If any person ... being a British subject, within or without Her Majesty's dominions, accepts or agrees to accept any commission or engagement in the military or naval service of any foreign state at war with any foreign state at peace with Her Majesty, ... or whether a British subject or not, within Her Majesty's dominions, induces any other person to accept any commission or engagement in the military or naval service of any ... foreign state ... he shall be guilty of an offense" against this act. And, "If any person induces any other person to quit Her Majesty's dominions or to embark on any ship within Her Majesty's dominions under a misrepresentation or false representation of the service in which such person is to be engaged, with the intent or in order that such person may accept or agree to accept any commission or engagement in the military or naval service of any foreign state at war with a friendly state ... he shall be guilty of an offense against this act." [40]

[Footnote 40: British declaration of neutrality, Apl. 26, 1898. It was pointed out that this act extended to all Her Majesty's dominions, including the adjacent territorial waters.]

The last clause of Article six of the Treaty of 1871 read: "And the High Contracting Parties agree to observe these rules as between themselves in future and to bring them to the knowledge of other maritime Powers and to induce them to accede to them."[41]

[Footnote 41: Gushing, Treaty of Washington (1873), p. 260. Great Britain was averse to the acceptance of this article of the treaty, but finally acceded to it in the above terms by signing the mutual agreement.]

These provisions were strictly enforced during the Spanish-American War, and other countries in their declarations defined the neutral att.i.tude which they a.s.sumed.

The Brazilian Government in its proclamation of April 29, 1898, declared: "The exportation of material of war from the ports of Brazil to those of either of the belligerent powers, under the Brazilian flag, or that of any other nation, is absolutely prohibited."[42] It was also pointed out that: "Individuals residing in Brazil, citizens or foreigners, must abstain from all partic.i.p.ation and aid in favor of either of the belligerents, and may not do any act which might be considered as hostile to either one of the two parties and, therefore, contrary to the obligations of neutrality."[43] Neither belligerent was to be permitted "to promote enlistment in Brazil, not only of its own citizens, but also of the citizens of other countries, for the purpose of incorporating them in its forces of land and sea."[44] Not even merchant vessels were to be permitted to weigh anchor in Brazilian ports until permission from the port authorities had been granted, and any movements of the belligerents were to be under the supervision of the customs authorities for the purpose of verifying the proper character of the things put on board.[45]

[Footnote 42: Art. IV of the Brazilian proclamation of neutrality; For.

Rel., 1898, pp. 847 ff.]

[Footnote 43: For. Rel., 1898, pp. 847 ff., Art. I.]

[Footnote 44: Ibid., Art. II.]

[Footnote 45: Ibid., Arts. XVII and III.]

The decree of Denmark forbade Danish subjects to commit certain enumerated offenses, and among them: "On or from Danish territory to a.s.sist any of the belligerent powers in the enterprises of war, such as supplying their ships with articles that must be considered contraband of war."[46] Danish subjects were forbidden "to take service in any quality soever in the army of the belligerent powers or on board their government ships, such prohibition to include piloting their ships of war or transports outside the reach of Danish pilotage, or, except in case of danger of the sea, a.s.sisting them in sailing the ship;"[47] "To build or remodel, sell or otherwise convey, directly or indirectly, for or to any of the belligerent powers, ships known or supposed to be intended for any purposes of war, or to cooperate in any manner on or from Danish territory in the arming or fitting out of such ships for enterprises of war;"[48] "To transport contraband of war for any of the belligerent powers, or hire or charter to them ships known or supposed to be intended for such use."[49]

[Footnote 46: Section I (3) of Danish proclamation of neutrality, Apl.

29, 1898; For. Rel., 1898, p. 855.]

[Footnote 47: Ibid., Sec. I (1).]

[Footnote 48: Ibid., Sec. I (2).]

[Footnote 49: Ibid., Sec. I (4).]

j.a.pan forbade "the selling, purchasing, chartering, arming, or equipping ships with the object of supplying them to one or the other of the belligerent powers for use in war or privateering; the a.s.sisting such, chartering, arming or equipping,"[50]

[Footnote 50: Art. 4 of j.a.panese proclamation of neutrality, May 2, 1898. For. Rel., 1898, p. 879.]

The Netherlands proclamation warned all Dutch subjects under penalty against exporting "arms, ammunition, or other war materials to the parties at war [to include] everything that is adaptable for immediate use in war."[51]

[Footnote 51: Art II (b) of Netherlands proclamation of neutrality. May 3, 1898. For. Rel., 1898, p. 888.]

Although the primary object of these prohibitions was the stoppage of all dealings in articles of a contraband nature, when fairly construed in the light of international opinion they would seem to render illegal the wholesale dealing in horses and mules intended for army purposes by one of the belligerents. Such animals are undoubtedly "adaptable for immediate use in war" and were in fact a necessity for the successful carrying on of the war. In the light of the express restrictions of the Treaty of Washington as exemplified in the war between one of the parties to that treaty and a third party in 1898, the obligation imposed upon the United States, impliedly at any rate, by the sixth article of the mutual agreement of 1871 might be read: "The United States is bound not to permit Great Britain to make use of its ports or waters as the base of naval operations against the South African Republics, or for the purpose of the renewal or augmentation of military supplies."

It would seem obvious that horses and mules when intended for immediate use in military operations are within the meaning of the term "military supplies." In numbers of instances horses have been considered contraband of war. The treaty of 1778 between the United States and France declared: "Horses with their furnishings are contraband of war,"[52] In the treaty of December 1, 1774, between Holland and Great Britain it was understood that "Horses and other warlike instruments are contraband of war." And Hall declares that horses are generally considered contraband and are so mentioned in the treaties between different States. He points out that the placing of an army on a war footing often exhausts the whole horse reserve of a country and subsequent losses must be supplied from abroad; the necessity for this is in proportion to the magnitude of the armies. Every imported horse is probably bought on account of the Government, and if it is not some other horse is at least set free for belligerent use. "Under the mere light of common sense," he says, "the possibility of looking upon horses as contraband seems hardly open to argument."[53]

[Footnote 52: Article XXIV; Wharton, Digest of Int. Law (1886), Vol.

III, --372.]

[Footnote 53: International Law (1880), pp. 579-580.]

Oppenheim shows that the importance of horses and beasts of burden for cavalry, artillery, and military transport sufficiently explains their being declared contraband by belligerents. He a.s.serts that no argument against their being held as conditional contraband has any validity, and it is admitted that they are frequently declared absolute contraband.[54] During the Russo-j.a.panese War Russia at first refused to recognize any distinction between conditional and absolute contraband, but later altered her decision with the exception of "horses and beasts of burden," which she treated as absolute contraband.

[Footnote 54: International Law, Vol. II, p. 426.]

The tendency in modern times, however, is to treat horses as only conditional contraband. The only reason that they were not expressly declared contraband in the Anglo-Boer contest was the character of the war. Had the Transvaal been able to issue an authoritative declaration and insure respect for it by a command of the sea, horses and mules would have been considered technical contraband as in fact they were actual contraband, being nothing if they were not "warlike instruments."

The enforcement of the obligations inc.u.mbent upon the United States under the circ.u.mstances undoubtedly lay with the Federal Government rather than with the States. Early in 1901 a proceeding in equity had been inst.i.tuted in a federal court in New Orleans for the purpose of enjoining the shipment of horses and mules from that port to Cape Colony. The bill was filed by private individuals who alleged that they had property in the Transvaal and Orange Free State which was being destroyed by the armies of Great Britain, and that these armies were able to continue their work of destruction only by means of the supplies of horses and mules which were shipped from the port of New Orleans. The application for an injunction was denied on the ground that the enforcement of the treaty obligations of the Government is a function of the President with which the courts have nothing to do.

The district judge in delivering the opinion declared that there was nothing in the principles of international law or in the terms of the Treaty of Washington, to which an appeal had been made, to prevent the citizens of a neutral state from selling supplies of war to a belligerent. The court went on to discuss the right of private citizens to sell supplies to belligerents, but did not enter upon the question whether or not the United States had permitted the British Government to make use of its ports and waters as a base for the purpose of the augmentation of its military supplies. The entire discussion of questions of international law was considered by the court as beyond its cognizance. The court said: "If the complainants could be heard to a.s.sert here rights personal to themselves in the treaty just mentioned, and if the mules and horses involved in the case are munitions of war, all of which is disputed by the defendants, it would become necessary to determine, whether the treaty is meant to prevent private citizens from selling supplies to the belligerents." The court then proceeded: "But the nature of this cause is such that none of the considerations hereinbefore set out need be decided," because "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."[55]

[Footnote 55: Pearson _v_ Parson 108 Fed. Rep. 461]

It will be seen that the court did not pa.s.s upon the question of an improper use of the ports of the United States. Clearly an injunction could not be granted since such a measure would not have had the effect of remedying the evil. It could not issue, for it was not established that there were private property rights to be protected. The complainants could show no property in the implications of the treaty, nor could they establish the fact alleged, namely, that horses and mules are munitions of war. The last question was one for the Federal Government alone to pa.s.s upon under the circ.u.mstances. Political obligations are not proper matters for enforcement by the courts. But the court did declare emphatically that the enforcement of all neutral obligations with reference to the ports and waters of the United States was the function of the executive branch of the Government.

The question at once arose whether it was a function of the state or of the federal executive to see that the neutrality laws were properly enforced. In submitting the evidence of the operations of the British agents within the State of Louisiana Governor Heard declared it to be his opinion that it was the proper function of the federal and not of the state Government to enforce obedience to these laws; but, he concluded, "if such duty belongs to the State where the violations of such laws occur, I would not hesitate to act as the laws may warrant and in keeping with the dignity and responsibilities of statehood."[56] The Governor asked that he be informed immediately what, in the opinion of the federal authorities, were the powers and duties of the state governments in matters of this character.

[Footnote 56: H.R., Doc. 568, 57 Cong., 1 Sess., p. 5.]

Unquestionably it lay with the federal executive to see to it that the neutral obligations of all the States were properly observed. Certain duties rest upon the governors of the different States, but it is the function of the President to carry into effect the laws regulating neutral obligations as well as the provisions of all treaties with foreign powers as a part of the law of the land. This duty was pointed out by Secretary Randolph in a circular of April 16, 1795, to the governors of the different States during the war between France and England. He defined the duties of neutrality and concluded: "As often as a fleet, squadron or ship, of any belligerent nation shall clearly and unequivocally use the rivers, or other waters ... as a station in order to carry on hostile expeditions from thence, you will cause to be notified to the commander thereof that the President deems such conduct to be contrary to the rights of our neutrality.... A standing order to this effect may probably be advantageously placed in the hands of some confidential officer of the militia, and I must entreat you to instruct him to write by mail to this Department, immediately upon the happening of any case of the kind."[57]

[Footnote 57: Moore, Digest of Int. Law, Vol. VII, p. 934-935.]