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 principally consists of arms and munitions of war, when the number of men on board, or circumstances 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 illustrative 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 attitude 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,"

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."

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."

These provisions were strictly enforced during the Spanish-American War, and other countries in their declarations defined the neutral attitude which they assumed.

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." It was also pointed out that: "Individuals residing in Brazil, citizens or foreigners, must abstain from all participation 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." 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." 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.

The decree of Denmark forbade Danish subjects to commit certain enumerated offenses, and among them: "On or from Danish territory to assist any of the belligerent powers in the enterprises of war, such as supplying their ships with articles that must be considered contraband of war." 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, assisting them in sailing the ship;" "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;" "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."

Japan 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 assisting such, chartering, arming or equipping,"

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."

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," 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."

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 asserts that no argument against their being held as conditional contraband has any validity, and it is admitted that they are frequently declared absolute contraband. During the Russo-Japanese 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.

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 incumbent upon the United States under the circumstances undoubtedly lay with the Federal Government rather than with the States. Early in 1901 a proceeding in equity had been instituted 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 assert 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."

It will be seen that the court did not pass 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 pass upon under the circumstances. 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." 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.

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."

It was the duty of the central Government to prevent as far as possible any abuse of the privileges which the laws of war allowed to the belligerents. "A Government is justly held responsible for the acts of its citizens," said Justice McLean of the United States Supreme Court, speaking of the Canadian insurrection of 1838. And he continued: "If this Government be unable or unwilling to restrain our citizens from acts of hostility against a friendly power, such power may hold this nation answerable and declare war against it."

Clearly the responsibility for the proper restraint rested upon the President with reference to the incidents which occurred around New Orleans. The fact that forbidden acts committed within the jurisdiction of a State of the Union escape punishment within that State does not relieve the central government of responsibility to foreign governments for such acts. In view of this fact the citizens of the separate States should remember the consequences which may result from their acts. The warning of Justice McLean, speaking of the incident already cited, is to the point:

"Every citizen is ... bound by the regard he has for his country, by the reverence he has for its laws, and by the calamitous consequences of war, to exert his influence in suppressing the unlawful enterprises of our citizens against any foreign and friendly power." And he concludes: "History affords no example of a nation or people that uniformly took part in the internal commotions of other Governments which did not bring down ruin upon themselves. These pregnant examples should guard us against a similar policy, which must lead to a similar result."

In the end nothing came of the alleged unneutral conduct of the United States in the use which had been permitted of the port of New Orleans during the war. Had the South African Republic gained an international status claims for indemnity would probably have lain against the United States for a violation of its neutral duties. Had the Transvaal, recognized in war as a belligerent, become an independent State as the result of that war, such claims would doubtless have been honored and compensation been made upon equitable grounds. Had the opponent of Great Britain in the war been one of the recognized powers of the world such a use of territorial waters could not have been permitted without an effective protest having been made by the State which was injured. The Republics, however, were treated at the close of the war as conquered territory and their obligations taken over by the British Government. Their rights as an independent State vanished when they failed to attain the end for which they fought.

The extreme generosity afterward displayed by Great Britain in the settlement of the claims of all citizens of the United States who had suffered by the war may possibly be explained by the benefits which the English forces were able to secure from the construction which was put upon American neutrality.

A resolution of the House of Representatives inquiring as to the treatment of citizens of the United States in the South African Republic brought out the fact that the number of those who claimed compensation was not large and that the British Government was willing to indemnify them. The terms of settlement allowed to the United States were in marked contrast to those granted to other powers whose citizens or subjects had also presented claims for indemnity through their respective governments. This fact is evident from the transactions before the Deportation Claims Commission, the appointment of which was announced on April 8, 1901.

The commission came together "for the purpose of investigating the claims to compensation which have been made or may be made by persons the subjects of various friendly powers in consequence of their deportation to Europe by the British military authorities in South Africa." It was to be composed of five members, among them "R.K. Loveday, Esq., formerly a member of the late South African Republic." The commission was to meet in London to hear such cases as might be presented there and then proceed to South Africa with the purpose of continuing its investigations. Any further evidence that was considered necessary was to be taken on the return to London. It was announced that all claims should be filed on or before April 25, 1901, that claimants might appear either in person or by counsel, and that the different governments might represent the combined claims of their respective citizens or subjects.

Mr. R. Newton Crane appeared before the commission on the part of the United States. In all, fifteen claims were presented. Five of these were presented by persons who alleged that they were native-born citizens of the United States, although no evidence was furnished as to the date or place of their birth. Eight alleged that they were naturalized citizens, while there were two who could produce no evidence whatever of their status. Eight had been deported on the suspicion of having been concerned in the Johannesburg plot to murder Lord Roberts and other English officers; one had been imprisoned at Natal as a Boer spy; another was captured on the field of battle while serving, as he alleged, with a Red Cross ambulance corps attached to the Boer forces; three others were compelled to leave the country for various reasons, while two more could produce no evidence that they had been forcibly deported; on the contrary it appeared that they had left South Africa voluntarily and at their own expense. The whole amount claimed was $52,278.29 on account of actual losses alleged. The commission heard all claims by means of an ex parte statement in each case, with the exception of two for which no statement had been presented. These last two had been mentioned as claimants by the Ambassador of the United States on October 24, 1900, in a communication to Lord Landsdowne, the English Secretary of State for Foreign Affairs, and were so presented to the consideration of the commission.

In dealing with the cases the commission did not insist upon any technical formality in the way of proof. The plan followed was to allow the legal representative of the English Government an opportunity to explain why each individual had been deported. The several claimants were then permitted to put in evidence to clear themselves of these charges. After the claims had all been considered in this way the English representative announced the wish of his government to "agree with the representatives of the various governments upon a lump sum to be received by each of the powers in full satisfaction of the demands of their respective claimants," it being understood that the British Government "was not to be concerned as to how the sums so paid were allocated among the various claimants." This proposal was accepted by the United States and by the other governments represented.

With the announcement of the decision of the commissioners on October 28, 1901, Mr. Crane pointed out that it had been very difficult to determine the real merits of most of the claims. Difficulty had been experienced not only in ascertaining the real facts but in applying the principles of international law as well. Many of the facts alleged by the claimants were not substantiated, and it was only the considerate view taken by the British Government which made possible a settlement so favorable to the United States.

Holland put in a claim for £706,355 in behalf of 1139 persons who alleged that they were Dutch subjects, and received 5.3 per cent, of that amount, or £37,500, which was the highest actual award made, although the lowest percentage of the sum claimed. Germany received £30,000, or 12.22 per cent, of the amount claimed for 199 persons; Austria-Hungary £15,000, or 34.24 per cent, for 112 persons; Italy £12,000, or 28.52 per cent, for 113 persons; the United States £6,000, or 22.22 per cent, for 15 persons. But Mr. Crane called attention to the evident error of basing a calculation upon the relation the award in each case bears to the amount claimed. The amount claimed in most cases is not what the claimant thinks he is justly entitled to for the losses he has sustained, but is the amount which his "caprice or cupidity fixes as that which may possibly be allowed him." Among the American claims a number included demands for "moral" damages, and these claims were larger than similar demands put in by citizens of other countries. Even among the American claimants themselves there was a wide divergence in appraising their losses, actual as well as moral. Of three in the same occupation, the same employment, the same domestic surroundings, deported together, at about the same time, and under almost identical circumstances, one demanded $5,220, the second appraised his losses at $11,112.50, and the third estimated his losses at $50,000.

With reference to the American claimants the conditions under which the persons were deported were practically the same, and there was little if any distinction as to social rank or grade of employment. Mr. Crane, therefore, seems justified in his conclusion that the idea conveyed by the percentage relation of the amount demanded to the amount actually awarded is misleading, and should not serve as a precedent without comment for similar claims in the future. A much fairer method for ascertaining what the award really amounts to is shown to be that of computing what average sum each claimant received, since the claimants were practically of one walk of life and employment and were deported under like conditions. Such a computation shows that the United States fared much better than any one of the other governments, the average sum received by each claimant being £428 11s. 5d., as compared with £150 15s. for Germany; £142 17s. 1d. for Russia; £133 18s. 6d. for Austria-Hungary; £133 6s. 8d. for Belgium; £125 for Norway and Sweden; and £106 3s. 10d. for Italy.

The £6,000 offered by the British Government as full compensation for all claims of citizens of the United States on account of wrongful arrest, imprisonment and deportation from South Africa up to October 26, 1901, was accepted by Secretary Hay. Only £4,000 had been originally offered, but the amount had afterward been increased to £6,000. Throughout the negotiations the attitude of the English Government was generous toward the United States. The claimants included good, bad and indifferent, some of whom were not entitled to compensation at all, since they were not citizens of the United States, while others had actually taken up arms against Great Britain. The average amount awarded to each alleged citizen of the United States was approximately $2000 as against $216 for each claimant of all other Governments taken together.

In a number of cases the claimants had contracted with local attorneys upon the basis of a contingent fee of 50 per cent, of whatever might be awarded. In one case the fee of the attorney presenting the claim amounted to $3750, although his services consisted in merely filing memorials which were not supported by a single word of proof of the assertions they contained, even after ample time had been given for the introduction of such proof. Mr. Crane, therefore, urged that in future similar claims should be presented directly by the citizens themselves without the intermediation of attorneys. In the present cases he said that his requests to the attorneys for the different claimants to furnish evidence to meet the accusations of the British Government against their clients had met with no response whatever. He felt justified in believing that these attorneys had either given up the presentation of the claims of their clients or that the latter were dead. It was accordingly suggested that in either case the United States would be justified in refusing to pay over to the attorneys such sums as might be allotted to their clients until the latter had been directly communicated with. In this way they would have the opportunity to confirm or withdraw any powers of attorney which they might have executed for the collection of their respective claims.