NEUTRAL RIGHTS AND OBLIGATIONS IN THE ANGLO-BOER WAR

BY ROBERT GRANVILLE CAMPBELL

1908



PREFACE.

This essay is the outgrowth of work done in the Political Science Seminary of the Johns Hopkins University and is a portion of a larger study dealing with the causes of the Anglo-Boer War and the questions of international law arising during that conflict.

At the beginning of the war the English Government was inclined to view the contest as one which would not make it necessary to call into operation the neutrality laws of third parties. It was soon realized, however, that the condition of insurgency was not broad enough to sustain the relations between the two Governments. Toward the close of November Great Britain's declaration with a retroactive effect put the contest upon a distinctly belligerent basis and accepted the date of the Transvaal's ultimatum, 5 p.m., October 11, 1899, as the commencement of the war.

Other Powers which had awaited this announcement with some anxiety at once declared their attitude toward the war. Among the first to assume this neutral position was the United States with the announcement that its attitude would be in accordance with the requirements of the strictest neutrality.

It is the purpose of the first chapter to inquire how far these obligations were fulfilled by the United States Government, and in the second chapter the attitude of European Governments is considered. In the third chapter the rights and obligations of belligerents and neutrals are discussed with regard to neutral commerce. Under this topic the wide divergence of English practice from Continental as well as from American opinion on points of international law cannot fail to be noticed.

The chief sources of information used in the preparation of the present paper have been the British Blue Books; the Foreign Relations of the United States; the House and Senate Documents not included in the Foreign Relations; the Congressional Record, Debates in Congress, Resolutions and Reports in answer to requests for information. Other sources and authorities are indicated in the footnotes.

I wish to express my gratitude to Dr. W.W. Willoughby, not only for his careful criticism of this study during its preparation, and for the helpful suggestions by which he has attempted to correct some of its obvious deficiencies, but especially for his kindly inspiration at all times.



CONTENTS.

PREFACE

CHAPTER I. THE NEUTRALITY OF THE UNITED STATES

CHAPTER II. THE NEUTRALITY OF EUROPEAN POWERS

CHAPTER III. CONTRABAND OF WAR AND NEUTRAL PORTS

CHAPTER IV. TRADING WITH THE ENEMY



CHAPTER I.

THE NEUTRALITY OF THE UNITED STATES.

The neutral attitude assumed by the United States was maintained throughout the war. With reference to any official recognition of the Transvaal as an independent State apart from the immediate purposes of war no action was taken. This view of the situation in South Africa was entirely consistent with the requirements of international law, and, in carrying out the obligations of a neutral to the belligerents, the governmental position was fully justified by a knowledge of the relations which had existed between the Transvaal and Great Britain in the past.

Early in October, before war had actually begun, it was understood that Mr. Pierce, the Orange Free State consul-general in New York, had made every effort to induce President McKinley to request other nations to act with the United States as arbitrators in the dispute between the Governments of the Transvaal and Great Britain, but the close friendship existing between England and the United States and the very friendly attitude assumed by Great Britain during the Spanish-American War made such action impossible. The State Department at Washington announced that in the event of war the Government would maintain an absolutely neutral attitude, and issued instructions early in October to all American consuls in South Africa directing them to secure protection for all neutrals of the United States who had not affiliated politically with either Great Britain or the South African Republics, either by exercising the franchise or otherwise. While those whom this definition did not cover were not to be directly under the protection of the United States, the State Department expressed itself as ready to use its good offices in their behalf in case they were involved in trouble resulting from the war. Such had been the position of the Department in the case of Mr. John Hays Hammond, a citizen of the United States who had been involved in the Jameson Raid, although he had taken part in an expedition which was not officially approved by Great Britain and which was hostile to a Government with which the United States had no quarrel.[1]

[Footnote 1: For. Rel., 1896, pp. 562-581.]

On October 8, the day before the Transvaal ultimatum was presented to Great Britain, the British Ambassador in Washington confidentially inquired whether in the event of an attack upon the English forces by the Boers, rendering necessary the withdrawal of the British agent, the United States would allow its consul to take charge of the British interests in the Transvaal.[2] Consent was very properly given on the eleventh that the United States would gladly allow its consul at Pretoria "to afford to British interests in that quarter friendly and neutral protective offices."[3] On the thirteenth this courtesy was acknowledged and the information given that the British agent had withdrawn. On the same day Mr. McCrum was instructed, "with the assent of the South African Republic, to afford to British interests the friendly protective offices usual in such contingencies."[4]

[Footnote 2: For. Rel., 1899, p. 350, Tower to Hay, Oct. 8, 1899.]

[Footnote 3: For. Rel., 1899, P. 350, Hill to Tower, Oct. 11, 1899.]

[Footnote 4: For. Rel., 1899, p. 351, Tower to Hill, and Adee to Tower, Oct. 13, 1899.]

Having thus assumed an attitude entirely in accord with the obligations incumbent upon a neutral, the United States refused to heed the popular demand to urge upon Great Britain its offices as mediator in a matter which directly concerned the British colonial policy. Secretary Hay properly refused to involve the Administration in the complications which would have followed any official interrogation addressed to the British Government with reference to its ultimate intentions in South Africa. Moreover, it was authoritatively stated that any concerted European intervention would not meet with favor in Washington, as such action would only tend to disturb general commercial relations by embroiling most of the nations of the world. Any attempted intervention would certainly have led to a conflict of the Powers, and would have involved questions of national supremacy, disturbed the balance of power, and raised the Chinese question, in which last the United States had an important interest. It was a sound policy therefore upon the part of the United States not to encourage any intervention by European nations in the affairs of Great Britain in South Africa.

This attitude not only reciprocated the friendly feeling shown by England during the Spanish-American War, but was in strict accord with the traditional American policy enunciated by Washington. The acquisition of the Philippines had only served to exemplify the soundness of this doctrine, and the State Department was not in a mood to take the initial steps which might lead to added responsibilities with reference to matters which, in this instance at any rate, were not directly of American concern. The part to be played by the United States was clearly that of an impartial neutral.

In his message to Congress in 1900 President McKinley stated that he was happy to say that abundant opportunity had been afforded in the situation at Pretoria to permit the United States consul there to show the impartiality of the Government toward both the combatants. Developments, however, were to show that things had not gone so smoothly there as was supposed at the time.

On December 8 the President had appointed Mr. Adelbert Hay, son of the Secretary of State, to succeed Mr. McCrum in his position as consul and instructions were sent to him to proceed at once to Pretoria. Mr. Hollis, the American consul at Lorenzo Marques, was directed at the same time to act ad interim at Pretoria after the departure of Mr. McCrum and until Mr. Hay could reach South Africa. On December 18 Mr. Hollis took charge of all British and American interests within the Transvaal while still keeping an oversight of the affairs of the United States in and around Lorenzo Marques.

Soon after the war had begun Mr. McCrum had reported to Washington, in reply to inquiries with reference to the British prisoners in the hands of the Boers, that it was the wish of the Republican Government that in the future all requests for the payment of money to officers or other prisoners, as well as inquiries regarding their welfare, should come through the regular military channels at the front. The Republic at the same time intimated that it could no longer recognize Mr. McCrum in any official capacity on behalf of Great Britain.[5] The British representative at once suggested that the United States consul be instructed to point out to the Transvaal that such an attitude was a departure from the usual practice in not permitting the American Government to use its friendly good offices on behalf of the English prisoners of war. Lord Salisbury called attention to the fact that during the Crimean War "moneys" for the British prisoners in Russia were distributed through the Danish representatives in St. Petersburg and London; and that during the Franco-Prussian War such small sums of money were handed to the French prisoners in Germany through the British Foreign Office. It was understood as a matter of course that reciprocal privileges would be extended to the Boer prisoners in the hands of the English commanders.[6]

[Footnote 5: For. Rel., 1900, p. 619, Hay to Pauncefote, Nov. 11, 1899.]

[Footnote 6: Ibid., p. 619, Hay to Pauncefote, Nov. 22, 1899.]

Mr. McCrum, following instructions from his Government, had placed the English view of the situation before the Transvaal authorities before he left Pretoria, and had called their attention to the fact that for them to permit the charitable and humane intervention of the United States consul under the circumstances was the regular course in time of war.[7] But not until Mr. Hollis reached Pretoria was the attitude of the Republic explained. He inquired of the Secretary of State as well as of the Secretary for Foreign Affairs with reference to the attitude he would be allowed to assume toward British interests; to what extent he might act on behalf of British prisoners of war in the Transvaal and Orange Free State; and how far he might exercise the usual consular functions on behalf of Great Britain during the war.

[Footnote 7: For. Rel., 1900, p. 620, Hay to Pauncefote, Nov. 28, 1900, and Hay to Pauncefote, Apl. 9, 1900.]

The report was made to Washington "from many official and consular sources that the late British agent at this capital [presumably Mr. Green] was always a thorn in the side of this Government, and that he is, in part, responsible for this present war."[8] It was pointed out that since this was the attitude of the Republican Government there existed at Pretoria a decided aversion to the recognition of any one who might claim to act as a British agent. The Transvaal Secretary of State expressed himself emphatically upon the point: "We got rid of the British agent on the eleventh of October last, and God willing, we will never have another one here."[9] Mr. Reitz even went so far as to express the confident hope that at the close of the war a British minister and British consuls would reside at Pretoria, but he was positive upon the question of receiving any one who was known as an agent of Great Britain. No one who assumed this relation toward the English Government would be acceptable to the Transvaal and Orange Free State.

[Footnote 8: For. Rel., 1900, p. 621, Hollis to Hill, Feb. 2, 1900.]

[Footnote 9: For. Rel., 1900, p. 621, Hollis to Hill, Feb. 2, 1900.]

The attitude which the Republic alleged it had been willing and was ready to assume was an unwillingness to recognize the consul of the United States or any other consular officer as the official representative of the British Government during the war; an objection to the transmission of the official communications of the English Government to that of the South African Republic, or of the official despatches of the English Government addressed to the British prisoners in the hands of the Transvaal, or of "moneys" or funds sent by the British Government to the English prisoners of war. On the other hand the Transvaal authorities were not unwilling to allow the United States consul at Pretoria to perform certain enumerated services in behalf of all British prisoners of war and their friends. No objection was made to the forwarding of letters and papers sent by friends to the prisoners, and, under the supervision of the War Office of the Transvaal, the Republic expressed itself willing to permit the distribution of funds sent to the English prisoners by their friends at home. But it was understood that such services would be reciprocal, and that the Republic would have the right to request similar services of the American consular officers on behalf of the Boer and Afrikander prisoners in the English possessions. The right was reserved to revoke any and all privileges to receive letters, papers, parcels and money, which were enjoyed by British prisoners in the Transvaal, should the fact be sufficiently proved that Boer or Afrikander prisoners in the hands of the English authorities were not receiving kind and humane treatment, or were being denied privileges similar to those enjoyed by British prisoners in the Republic. All concessions on the part of the Transvaal Government would be instantly revoked on these grounds as sufficient reason and cause for such action. The Republican Government asserted that this had been the attitude in accordance with which it had acted from the commencement of the war.[10]

[Footnote 10: For. Rel., 1900, pp. 621-622, Hollis to Reitz, Jan. 31, 1900, and Reitz to Hollis, Feb. 2, 1900.]

With reference to the recall of the American consul and the appointment of Mr. Adelbert Hay, it appears that there had been a certain amount of friction between Mr. McCrum and the English censor at Durban concerning the consular mails. In connection with this incident, and a little unwisely it would seem, Mr. McCrum had reported unofficially that his mail had been tampered with by the censor and had been forwarded to him only after Colonel Stowe, the American consul-general at Cape Town, had secured its release. He asserted: "I had the humiliation, as the representative of the American Government, of sitting in my office in Pretoria and looking upon envelopes bearing the official seal of the American Government, opened and officially sealed with stickers, notifying me that the contents had been read by the censor at Durban." And he continues, "when I accepted my post as consul I knew nothing of any secret alliance between America and Great Britain."[11] These charges brought forth in the House of Representatives a resolution which called upon the President to furnish information as to whether the consul's mail had been opened and read by the British censor and, if so, what steps had been taken in the matter. Information was also asked as to what truth there was in the statement that a secret alliance existed between the "Republic of the United States and the Empire of Great Britain."[12]

[Footnote 11: H.R., Doc. 458, 56 Cong., 1 Sess.]

[Footnote 12: H. Res. 149, 56 Cong., 1 Sess.; also H. Res. 160.]

In response the President reported through the Secretary of State that the Department had been in regular communication by mail and telegraph with Charles E. McCrum, late consul at Pretoria, since his entrance upon the duties of the office. Communications made to him had been answered by him. His despatches forwarded through the consulate at Lorenzo Marques had been regularly received during his incumbency in office. It was pointed out that the only instance of complaint had been in November, when a temporary stoppage of the mails had occurred at Cape Town, against which both Mr. McCrum and the consul at Lorenzo Marques had protested. But arrangements had been then made for the prompt delivery of all the consular mails to the United States consulate at Cape Town by which they were forwarded to the consul at Lorenzo Marques and thence to Pretoria. The delay had continued only a few days and the difficulty had not occurred again. It was pointed out also that this arrangement had been made known to both Mr. McCrum and Mr. Hollis as early as November 16, and that no obstacle had since existed to prevent the unhampered correspondence from Pretoria to Washington. Moreover, the Secretary of State asserted that Mr. McCrum had not officially reported "any instance of violation, by opening or otherwise, of his official mail by the British censor at Durban, or any person or persons whatsoever, there or elsewhere;"[13] he had not so reported since he left Pretoria, although ample opportunity was afforded him to do so by mail or in person when he reported to the Department on his return.

[Footnote 13: H.R., Doc. 458, 56 Cong., 1 Sess.]

In regard to the second charge made by Mr. McCrum it seemed hardly necessary to say that there was no truth in the statement that a secret alliance existed between Great Britain and the United States; that no form of secret alliance was possible under the Constitution since all treaties required the advice and consent of the Senate. Mr. Hay concluded, however, by emphatically assuring the members of Congress that "no secret alliance, convention, arrangement, or understanding exists between the United States and any other nation."[14]

[Footnote 14: H.R., Doc. 458, 56 Cong., 1 Sess.]

Mr. McCrum later appeared before the Committee on Foreign Affairs in the House of Representatives and stated his side of the case. He declared that while at Pretoria he had understood that the British Government was in possession of the United States cable ciphers but he was unable to affirm this from personal knowledge. He based his belief, he said, upon the fact that when on November 6 he had cabled by way of Durban to the Department asking for leave of absence the incident had been reported to have been published in a Durban paper on the following day, although he had cabled in cipher. He was not able to say, however, whether the fact of his desiring leave was actually published on November 7, as he had not seen the paper, but had heard that the fact had been published. He asserted that the first actual evidence of the opening of his mail was in the case of two opened letters reaching him, but he admitted that he had not reported the matter to the Department. When Mr. Hay mentioned the matter to Sir Julian Pauncefote, the British Ambassador in Washington, the English Government replied that it had no knowledge of the incident, and gave the assurance that if it had occurred it had been contrary to instructions. Colonel Stowe later informed Mr. Hay that two letters from the consulate at Cape Town, one for Pretoria, the other for Lorenzo Marques, had been opened by the censor at Durban, but that Sir Alfred Milner, the British High Commissioner, had afterward offered a very satisfactory apology.

In view of these facts the committee of the House, before which Mr. McCrum appeared, made no report, and when Mr. Adelbert Hay reported that he had failed to find on the files of the consulate any evidence of the official mail having been tampered with, the incident was considered closed. Mr. Hay declared that as far as he could ascertain, no interference had occurred in the communication, either telegraphic or postal, between the State Department and the consulate.[15]

[Footnote 15: For. Rel., 1906, p. 20, Hay to Pauncefote, Apr. 9, 1900.]

The new consul at Pretoria also reported that everything was as satisfactory as could be expected under the circumstances of war, and his official intercourse with the Transvaal Government afterwards fully justified this assertion. The republics displayed a proper attitude toward the consulate not only as representing American interests, but as representing Great Britain during the course of hostilities. Every facility was afforded the American consul for performing his duties. For the efficient service he had rendered in connection with the British prisoners he was publicly thanked by the British High Commissioner, who expressed the feeling of gratitude which he said existed throughout the British Empire for the good work which had been performed by both Mr. Hay and Colonel Stowe, the latter at Cape Town.

While enforcing the obligations of a neutral State by an attitude of strict impartiality toward both belligerents, the United States was not inclined to allow popular sympathy for the Boers to lead to complications with foreign nations over a matter with which it was only remotely concerned. This position was known to the envoys of the Transvaal and Orange Free State before they left Pretoria. Ample opportunity to realize the situation had been afforded them before they left Europe for America after an unsuccessful tour of the capitals of the Continent. Nevertheless, they determined to appeal to the United States, and with this purpose in view arrived in Washington on May 17, 1900. A resolution introduced in the Senate by Mr. Allen of Nebraska on May 19, which would have extended the privilege of the floor to them, was laid on the table,[16] a decision the wisdom of which is unquestionable. The Senate stands before the world as an important part of the treaty-making power of the United States. Such a privilege, if extended to the mission, could have meant nothing to foreign powers but an official reception to the envoys of a government which was not recognized as legitimate by its former conventional suzerain. It was not the part of the Senate to inquire into the substance of the past relations between Great Britain and the Transvaal. Especially was this true since the governmental position had been declared early in the war and nothing had occurred to warrant any alteration in that position. This was the view which President McKinley took of the situation, and the policy of dealing with the problem was that of the strictest neutrality.

[Footnote 16: 56 Cong., 1 Sess., Record, pp. 5735, 5783-86.]

On May 21 it was officially announced that the delegates had called by appointment at the State Department. The notice given out to the press read: "They were cordially received and remained with the Secretary of State for more than an hour. They laid before the secretary at much length and with great energy and eloquence the merits of the controversy in South Africa and the desire of the Boer Republics that the United States should intervene in the interests of peace and use its influence to that end with the British Government."[17] The ambition of the envoys on leaving the Transvaal for Europe had been "for the purpose of seeking recognition and intervention," but the success of their mission at Washington was not to be greater than it had been in European capitals. Although Mr. Hay received them courteously their competence to treat directly with the State Department was not recognized. When they realized this fact they appealed directly to the people in the hope of bringing a certain amount of pressure to bear upon the President from that source. He fully realized, however, that under the circumstances no interference was advisable. A departure from this policy would have created a precedent which might later have been appealed to by any European government in behalf of its subjects in this country. As Presidential candidate, however, William J. Bryan, in effect, if not in express terms, promised a mediation that would mean something should the Democrats come into power, and it was hopes created by such utterances which encouraged the Boers to believe that intervention on the part of the United States was a possibility. Even the Senate passed resolutions of sympathy which only held out a vain hope and naturally caused a certain amount of criticism in England. In the end, however, the envoys became convinced that nothing was to be hoped for in the way of dictatorial interference by the United States.

[Footnote 17: Moore, Digest of Int. Law, Vol. I, p. 213]

In his message to Congress, in 1899, three months after the war began, President McKinley had been able to declare: "This Government has maintained an attitude of neutrality in the unfortunate contest between Great Britain and the Boer States of Africa. We have remained faithful to the precept of avoiding entangling alliances as to affairs not of our direct concern. Had circumstances suggested that the parties to the quarrel would have welcomed any kindly expression of the hope of the American people that war might be averted, good offices would have been gladly tendered." And in May, 1900, after the interview with the Transvaal delegation, Mr. Hay gave out a statement through his secretary in which it was declared that this entirely correct neutral attitude had been strictly adhered to: "As the war went on the President, while regretting the suffering and the sacrifices endured by both of the combatants, could do nothing but preserve a strict neutrality between them. This has been steadfastly and constantly done, but there never has been a moment when he would have neglected any favorable occasion to use his good offices in the interest of peace."[18] Mr. Hay also pointed to the fact that on March 10, 1900, at the request of the Republics, the United States consul at Pretoria had communicated with his Government with a view to the cessation of hostilities, and that the same proposal was made to European powers through their respective consuls.

[Footnote 18: Moore, Digest of Int. Law, Vol. VII, p. 19.]

The request of the Transvaal was at once despatched to London, and the earnest hope was expressed by the President that a way might be found to bring about peace, with the intimation that he "would be glad to aid in any friendly manner to promote so happy a result." The Transvaal was promptly informed of this action and the United States representative in London communicated the President's instructions to Lord Salisbury. In answer he was requested to "thank the President for the friendly interest shown by him," but it was unmistakably declared that "Her Majesty's Government could not accept the intervention of any power."[19] This reply was communicated to Pretoria, and no further steps were taken, since any insistence upon the part of the United States would have been an unfriendly act.

[Footnote 19: Moore, Digest of Int. Law, Vol. VII, p. 20.]

In justification of the action of the President, in view of the popular feeling that more urgent pressure might have been used to cause the cessation of hostilities, Secretary Hay clearly showed that the United States Government was the only one of all those approached by the republics which had even tendered its good offices in the interest of peace. He called attention to the fact that despite the popular clamor to the contrary the action of the Government was fully in accord with the provisions of the Hague Conference and went as far as that Convention warranted. A portion of Article III of that instrument declares: "Powers, strangers to the dispute, may have the right to offer good offices or mediation, even during the course of hostilities," but Article V asserts, "The functions of the mediator are at an end when once it is declared either by one of the parties to the dispute or by the mediator, himself, that the means of conciliation proposed by him are not accepted."[20] Obviously any further action on the part of the United States was not required under the circumstances, and Secretary Hay seems fully justified in his statement that "the steps taken by the President in his earnest desire to see an end to the strife which caused so much suffering may already be said to have gone to the extreme limit permitted to him." Moreover, had the President preferred not to present to Great Britain the Republic's request for good offices, his action could have been justified by the conditions under which the representatives of the United States at the Hague signed that convention. At that time the express declaration was made that "Nothing contained in this Convention shall be so construed as to require the United States of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself with questions of policy or internal administration of any foreign State."[21]

[Footnote 20: Moore, Digest of Int. Law, Vol. VII, p. 23.]

[Footnote 21: Moore, Digest of Int. Law, Vol. VII, p. 21.]

The final utterance of the President in regard to the mission of the Boers was the conclusive statement made through Secretary Hay: "The President sympathizes heartily in the desire of all the people of the United States that the war ... may, for the sake of both parties engaged, come to a speedy close; but having done his full duty in preserving a strictly neutral position between them and in seizing the first opportunity that presented itself for tendering his good offices in the interests of peace, he feels that in the present circumstances no course is open to him except to persist in the policy of impartial neutrality. To deviate from this would be contrary to all our traditions and all our national interests, and would lead to consequences which neither the President nor the people of the United States could regard with favor."[22]

[Footnote 22: Moore, Digest of Int. Law, Vol. VII, p. 21.]

The attitude of the United States in the immediate vicinity of the war as well as the manner in which the envoys of the Transvaal were received in Washington rendered criticism impossible with reference to the fulfilment of the obligations of a neutral State. But serious charges were repeatedly made by the Transvaal sympathizers with reference to the use to which American ports and waters were put by British vessels or British-leased transports plying between the United States and South Africa. It was alleged that Great Britain was able to create here a base of warlike supplies, and thus to obtain material aid in her operations against the Boer forces. The probability of the truth of the Transvaal's allegations would seem at first thought to be slight considering the distance of the scene of war from the coasts of the United States, but upon closer inspection these charges become more worthy of belief. That warlike supplies were actually transported from at least one of the ports of the United States under such a systematic scheme as to constitute a base of hostile supplies for the English forces in South Africa, would seem to be established.

Individual commercial transactions with belligerents always occur, and it is not the part of neutral governments to assume responsibility for all such transactions, but the principles of the international law of the present day do require all neutral states to see to it that their respective territories are not made bases for hostile operations.

A few minor incidents showed that the obligations of neutrality would be enforced by the United States when it became apparent to the Government that the neutrality laws were being evaded. In Cincinnati a Frenchman giving his name as Pierrot was summoned before the United States Attorney on a charge of a violation of neutral restrictions. He had been known, it seems, as a recruiting officer for the Transvaal Government, but avowed that he had engaged men only for the Boer hospital corps and not for the army of the Republics. The warning that he must cease enlisting men even for this branch of the republican service proved sufficient in this case, but undoubtedly such recruiting on a small scale continued to evade detection.

Later, the New York courts restrained the steamer Bermuda from leaving the port upon the application of a British subject, who alleged that he had been informed that the Bermuda was carrying contraband to the Transvaal. After a detention of five days the ship was allowed to sail because it was not shown that the allegation had any foundation in fact.

Toward the close of November, 1900, a charge of a more serious nature was made. It was reported that a British remount establishment was operating in the United States and had just purchased fifty thousand horses and mules for the British forces in South Africa, and considerable attention to this alleged violation of neutral obligations was drawn by that portion of the press which was in sympathy with the Boers. A resolution was adopted by the House of Representatives calling upon the President to furnish information "whether our ports or waters had been used for the exportation of horses, mules, and other supplies for use in South Africa, and if so, to what extent and what steps had been taken to prevent such a use being made of neutral territory in time of war."[23] The request was also made that full information be furnished with reference to the number of horses and mules which had been cleared from the ports of the United States since the beginning of the war, with a detailed statement of the shipments from each port and the dates of such clearances.

[Footnote 23: H. Res. 414, 418, 56 Cong., 2 Sess., Feb. 28, 1901.]

The reply submitted to Congress was that the ports of the United States had been used for the exportation of horses and mules and other supplies for use in South Africa; that between October, 1899, and January 31, 1901, the value of such shipments had amounted to $26,592,692; that no steps had been taken to prevent the "lawful exportation of horses, mules, and other supplies to South Africa;" and that the number of horses and mules shipped from the ports of the United States during this period had been 76,632. It was not practicable, it was asserted, to give the shipments from each port and the dates of such shipments without examining the copies of the manifests of each vessel that had cleared for South Africa. Such an examination and compilation could not be presented to Congress before its adjournment, although copies of the clearance papers were filed with the collectors of the customs at the different ports of the country.[24]

[Footnote 24: H.R., Doc. 498, 56 Cong., 2 Sess.]

In the same report it was shown that of the entire exports to South Africa during this period a large proportion had been of warlike supplies, if horses and mules for army purposes can be considered warlike in character; 28,598 horses valued at $2,698,827; 48,034 mules valued at $4,611,365. Gunpowder to the value of $1472 had also been exported; other explosives to the value of $7073, and firearms valued at $924, in all $7,310,661 worth of such supplies exported to one or both of the belligerents in South Africa. Possibly the larger proportion of the gunpowder, other explosives, and firearms was run into the Transvaal by way of Delagoa Bay as contraband under the usual risks, or was used for purposes apart from the war, but with reference to the supplies for the British army it would seem that a very free use was made of the ports and waters of the United States. One reason why the English Government was able to supply its armies in South Africa with horses and mules in such large numbers may have been the fact that a better market supply existed in this country, but it is more probable that the evasion of the strictest neutral requirements was easier here than elsewhere. The distance from the scene of war, although it involved an additional cost for transportation, also rendered an evasion of the requirements of neutrality less conspicuous. The supply of horses and mules in the European market was scant, especially in the class of animals which was needed, but it seems obvious that the motive which actuated the purchases was rather the greater ease in evading neutral prohibitions than the desire to secure a better market at a distance of ten thousand miles from the seat of war. Possibly both motives actuated the purchases, but it is nevertheless true that the United States ports were used to a far greater extent than those of any other neutral Government. The last statement is borne out by the Report of the Royal Commission on the War in South Africa, which shows that from November, 1899, to June, 1902, inclusive, no fewer than 191,363 horses and mules were shipped from the ports of the United States for the British forces in South Africa, aggregating a total cost to Great Britain of approximately $20,175,775. The entire cost in the United States and elsewhere for such purchases at the end of July, 1902, amounted to $52,000,000 in round numbers. The entire cost incurred within the United States was greater than that incurred in any other country. In Hungary the cost to Great Britain for horses and mules was $8,203,505; in Spain $1,667,695; in Italy $688,690; in the Argentine Republic, the British colonies and elsewhere, $21,284,335.[25]

[Footnote 25: Sessional Papers of the House of Commons, C. 1792 (1903), p. 260.]

In view of this undoubted use of the ports and waters of the United States by one of the belligerents in a war toward which a neutral attitude had been declared, it may be inquired how far the condition of affairs was known to the Administration and what opportunity there was for executive action, especially with reference to the allegation made by the Transvaal that the port of New Orleans was used as a base of warlike supplies for the British forces.

On April 10, 1902, a resolution of the House of Representatives called upon the President for copies of "any report and communication of the Governor of Louisiana, together with all accompanying affidavits, documents and communications concerning the shipments of horses, mules, and other supplies from Louisiana to the seat of war in South Africa."[26] In response a report of Secretary Hay disclosed the fact that on February 1, 1902, a certain Samuel Pearson had appealed to the President against the use to which Great Britain had been allowed to put the ports of the United States in supplying her armies in South Africa. Pearson had affirmed that "the port of New Orleans was being made the basis of military operations and the port and waters for the purpose of the renewal and augmentation of military supplies for the British army." He further alleged that the attention of the courts had been called to the matter and the United States circuit court for the eastern district of Louisiana had declared that the case was not within the cognizance of the court since the matter could be taken up only by the executive branch of the government.[27] In making his plea directly to the President, Pearson asserted that at the port of Chalmette, a few miles below New Orleans, a British post had been established; that men and soldiers had been assembled there and were daily engaged in warlike operations not only for the renewal and augmentation of military supplies, but for the recruitment of men. He alleged that no concealment was made of the facts as he had stated them; that although the English officers did not appear in uniform war was actually being carried on in behalf of the British Government from the territory of the United States. He concluded: "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 of this port, or to carry on war here for the burghers."[28]

[Footnote 26: H.R., Doc. 568, 57 Cong., 1 Sess., p. 1.]

[Footnote 27: Pearson v. Parson, 108 Fed. Rep. 461.]

[Footnote 28: H.R., Doc. 568, 57 Cong., 1 Sess., p. 3.]

The President referred the matter to the Mayor of New Orleans with the intimation that a breach of the peace was threatened. The Mayor shifted the responsibility to the Governor of the State on the ground that the acts complained of were alleged to have been committed in the parish of St. Bernard and consequently outside the jurisdiction of the city authorities. Finally, under the orders of the Governor the Sheriff of St. Bernard parish made an investigation and reported that Pearson's statements had been incorrect in a number of points.[29] It was admitted that mules and horses had been and were then being loaded at Port Chalmette for the British Government either directly or indirectly; that the operation was being carried out by local men all of whom were citizens of the United States; that the work was being supervised by Englishmen who might or might not be officers of the British army, although none of them wore the uniform of Great Britain. But the Sheriff positively asserted that a British post with men and soldiers was not established at the port; that no recruiting of men was taking place within the parish; that the only men taken on the ships were muleteers who were employed in the city of New Orleans by the contractors; that these men were taken on board the ships when in mid-stream by tugs which set out from the city wharves.

[Footnote 29: H.R., Doc. 568, 57 Cong., 1 Sess., p. 4; Nunez, Sheriff of St. Bernard, to Heard, Governor of Louisiana, Feb. 28, 1902.]

In a personal interview "General" Pearson made the same charges to the Governor that he had made in his letter to the President. He asked that he be allowed to offer forcible resistance to the shipments to South Africa, and to the enlisting or employing of men as muleteers, who, he alleged, were later incorporated in the British army. This interview took place the day following the Sheriff's letter partially denying the charges to the Governor, and the latter was not disposed to take any action in the matter until proof of the accuracy of the averments was produced, although the facts which were alleged had become widely known.

The attitude of the Administration with reference to Pearson's letter, it was believed by the press, was not of a character to inspire great confidence in the strict performance of neutral duties. To ignore an allegation of so flagrant a character as the breach of neutrality, it was declared, constituted a disregard of American ideals in the interest of British imperialism which could not be excused by jocular references to "General" Pearson's request to the President "to either put an end to this state of affairs or permit me to strike one blow."[30]

[Footnote 30: The Republic of Chicago, Feb. 15, 1902.]

It was pointed out that the problem raised by Pearson was not one that might be laughed out of the White House, but was the serious question whether the British Government should any longer be permitted, in violation of American neutrality, to use an American city and port as a base of warlike operations against a friendly people. The newspapers, too, had made public the movements of the English army officers in charge of the shipments. It seems that the base of operations at first used by Great Britain was Southport, but that Chalmette had later been selected. The efficiency of the latter station was reported upon in March, 1902, by General Sir Richard Campbell Stewart of the British army. Everything pertaining to the efficiency of the transportation service was carefully inspected on behalf of the British Government. Colonel DeBergh, who was in command of the remount service in the United States, declared that he had not received orders from the British War Office to discontinue the shipments, and that they would be continued "unless General Pearson and the Boer army drive our garrison away."[31]

[Footnote 31: The New Orleans Picayune, Mar. 28, 1902.]

The evidence which Pearson was able to place before Governor Heard and which the latter laid before the President seemed to substantiate the fact that at least one of the ports of the United States had been constantly used and was then being used as a base of military transportation to the British forces in South Africa. It was shown that William B. Leonard, of New Orleans, had contracted with Major H.J. Scobell, representing the British Government, for the purchase of mules to be shipped to South Africa for military purposes. The contract had been signed in October, 1899, and during the months from October, 1899, to May, 1900, large numbers had been shipped to South Africa under the immediate direction of British army officers.[32] P.B. Lynch made affidavit that he had been employed as clerk and bookkeeper in the bureau of the British remount service in New Orleans from December, 1899, to September, 1901. He explained the operations of the remount service as well as its methods, and indicated clearly the direct connection of regularly appointed officers of the British army with the purchase and shipment of horses and mules to South Africa. The purchases, it seems, were made at different points in the country and afterward assembled at a place designated by the officer in charge in New Orleans. The British army brand was then placed upon the animals, which were immediately consigned to the British officer in New Orleans but without giving his military title. They were then transferred to ships the charter parties of which were agents of the English Government. It was shown that the ships' agents usually employed muleteers taken on by tugs from the city of New Orleans, and it was proved that the whole operation was controlled by English army officers who were detailed from London or from South Africa for the purpose.[33]

[Footnote 32: Leonard v. Sparks Bros. & McGee, Civil District Court, Parish of New Orleans, Division E, No. 62,770, Feb. 24, 1902.]

[Footnote 33: H.R., Doc. 568, 57 Cong., 1 Sess., p. 9; also pp. 10-13 passim.]

The testimony of Charles J. Cole showed that as foreman in charge of seventy or more men he had made six trips to South Africa in the service of the British Government or of its agents. His testimony was substantiated by certificates for seamen discharged before the superintendent of a mercantile marine office in the British Empire, a British consul, or a shipping officer on board the vessel on which he had sailed. He had been employed on the transports Prah, Montcalm, Knight Bachelor, Montezuma, and Rosetta, all engaged in transporting horses and mules to the British army in South Africa. He testified that the transports were in charge of regular officers of the English army and that from them all orders were received. He also avowed that many of the men were urged and solicited by the officers to join the British army, and were unable to obtain their pay unless they complied with the request.[34]

[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 ashore 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, Title LXVII, Sections 5281-5291, inclusive.]

The first section of the neutrality laws which were passed 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 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,"[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 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."[42] 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."[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 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."[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, assisting 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).]

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,"[50]

[Footnote 50: Art. 4 of Japanese 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, Sec.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 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.[54] 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.

[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 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."[55]

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

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."[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.]

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."[58]

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:

[Footnote 58: Citing Reg. v. Recorder of Wolverhampton, 18 Law T. 395-398; see also H.R., Doc. 568, 57 Cong., 1 Sess., p. 17.]

"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.[59] 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.

[Footnote 59: H. Res., 178, 56 Cong., 1 Sess.; also H.R., Doc. 618, 56 Cong., 1 Sess.]

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."[60] 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.

[Footnote 60: For. Rel., 1901, pp. 216-222.]

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."[61] This proposal was accepted by the United States and by the other governments represented.

[Footnote 61: For. Rel., 1901, p. 221.]

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 L706,355 in behalf of 1139 persons who alleged that they were Dutch subjects, and received 5.3 per cent, of that amount, or L37,500, which was the highest actual award made, although the lowest percentage of the sum claimed. Germany received L30,000, or 12.22 per cent, of the amount claimed for 199 persons; Austria-Hungary L15,000, or 34.24 per cent, for 112 persons; Italy L12,000, or 28.52 per cent, for 113 persons; the United States L6,000, 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."[62] 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.

[Footnote 62: For. Rel., 1901, p. 221.]

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 L428 11s. 5d., as compared with L150 15s. for Germany; L142 17s. 1d. for Russia; L133 18s. 6d. for Austria-Hungary; L133 6s. 8d. for Belgium; L125 for Norway and Sweden; and L106 3s. 10d. for Italy.

The L6,000 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 L4,000 had been originally offered, but the amount had afterward been increased to L6,000. 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.



CHAPTER II.

THE NEUTRALITY OF EUROPEAN POWERS.

The attitude of the European powers was generally observant of the requirements of neutrality in so far as governmental action could be proved. The frequent charges which Great Britain made that the Transvaal was recruiting forces in Europe were not proved against the States from which the recruits came. The numbers in the parties which perhaps actually joined the Boer forces were not large, and no formidable fitting out of an expedition or wholesale assistance was proved against any European government.

Germany, the power most nearly in touch with the Transvaal in South Africa with the exception of Portugal, early declared the governmental attitude toward the struggle. The German consul-general at Cape Town on October 19, 1899, issued a proclamation enjoining all German subjects to hold aloof from participation in the hostilities which Great Britain at that time had not recognized as belligerent in character. If insurgency be recognized as a distinct status falling short of belligerency, this was perhaps such a recognition, but it was in no sense an unfriendly act toward Great Britain. It was merely a warning to German subjects as to the manner in which they should conduct themselves under the circumstances. It did not recognize the Boers as belligerents in the international sense, but it warned German subjects that a condition of affairs existed which called for vigilance on their part in their conduct toward, the contestants. Later, when the British Government announced that the war would be recognized retroactively as entitled to full belligerent status, Germany declared the governmental attitude to be that of strict neutrality in the contest. An attempt of the Boers to recruit in Damaraland was promptly stopped by the German officers in control, who were ordered to allow neither men nor horses to cross the border for the purposes of the war. All German steamship lines which held subventions from the Government were warned that if they were found carrying contraband they would thereby forfeit their privileges. Stringent orders were also given by the different German ship companies to their agents in no case to ship contraband for the belligerents. The attitude assumed by the German Government was not entirely in accord with the popular feeling in Germany. On October 5 a mass-meeting at Goettingen, before proceeding to the business for which the conference was called, proposed a resolution of sympathy for the Boers: "Not because the Boers are entirely in the right, but because we Germans must take sides against the English."[1] But despite popular sentiment, the position which had been taken by the Government seems to have been consistently maintained.

[Footnote 1: London Times, Weekly Ed., Oct. 5, 1899, p. 626, col. 2.]

In June, prior to the outbreak of war, President Kruger had been advised by the Dutch Minister for Foreign Affairs that the Transvaal should maintain a moderate attitude in the discussion of the questions at issue with the British Government. The German Government, too, had advised the Republics to invite mediation, but at that time President Kruger declared that the moment had not yet come for applying for the mediation of America. The United States, it was considered by both Holland and Germany, could most successfully have undertaken the role of mediator from the fact that England would have been more likely to entertain proposals of the kind coming from Washington than from a European capital.

In December, 1900, Count Von Buelow, the German Imperial Chancellor, speaking of the neutral attitude of Germany, declared that when President Kruger later attempted to secure arbitration it was not until feeling had become so heated that he was compelled to announce to the Dutch Government that it was not possible to arrange for arbitration. The German Government, it was declared, regarded any appeal to a Great Power at that time as hopeless and as very dangerous to the Transvaal. The German and the Dutch Governments each believed that President Kruger should not have rejected the English proposal then before him for a joint commission of inquiry.[2] The German Government had nothing for which to reproach itself in regard to the outbreak of war or with reference to the fate of the Republics. "Of course there are certain lengths to which we could not possibly go. We could not, in order to prevent the door from being slammed, let our own fingers be crushed between the door and the hinges; that would not have helped the Boers and would only have harmed ourselves,—and when the war had broken out it was impossible for us, in view of the general situation of the world and from the standpoint of German interests as a whole to adopt any attitude except that of strict neutrality."[3] Continuing, Count Von Buelow pointed out the fact that the policy of a great country should not at a critical moment be governed by the dictates of feeling, but should be guided solely in accordance with the interests of the country, calmly and deliberately calculated.

[Footnote 2: The German Chancellor seems slightly in error in assuming that the Transvaal rejected the English proposal for a joint inquiry. It will be remembered that immediately following the Bloemfontein Conference President Kruger had drafted a law considerably modifying the Transvaal demands in the conference, and later submitted the proposals of August 19, which he alleged had been" induced "by their implied acceptance on the part of the British agent. When these proposals lapsed from the fact of their non-acceptance by the British Government, he declared that he was ready to return to the discussion of the proposed joint commission of inquiry and was met by the English assertion that the condition of affairs no longer warranted a discussion of the original proposal for such a commission, and that Great Britain would have to formulate new demands to meet the altered conditions. The outbreak of war had forestalled these demands.]

[Footnote 3: Speech in Reichstag, London Times, Dec. 11, 1900, p. 5, col. 1.]

The possibility of mediation with Germany in the role of mediator was shown to have been made conditional upon the acceptance of such a step by both the parties to the contest, as otherwise it would not have been mediation but intervention, with the ultimate possibility of the exercise of force for the purpose of stopping the hostilities. Intervention of that kind, involving the idea of coercion, was never considered by the German Government because of the general situation of the world and of special German interests. The idea of anything other than entirely peaceful and friendly intervention was not entertained by any power in considering the situation in South Africa. The German Chancellor declared that "even those Powers which academically ventilated the idea of peaceful mediation invariably and expressly laid stress upon the fact that they had no thought or intention of forcing England to accept peace against her will." He asserted that the possibility of mediation was thus excluded since the preliminary condition of such a course was the consent of both parties to the conflict.

Count Von Buelow also called attention to the fact that the gentlest form of diplomatic inquiry made by the United States had been rejected by the English Government "officially and categorically in the most distinct manner possible." And speaking officially, he continued, "We therefore did what we could as a neutral Power and without imperilling direct German interests in order to prevent the outbreak of war. In particular we acted in the most straightforward manner toward the governments of the South African Republics inasmuch as from the first and in good time we left them in no doubt regarding the situation in Europe and also regarding our own neutrality in the event of war in South Africa. In both these regards we made matters clear to the two South African Republics and did so in good time."[4] The Chancellor seems to have fairly defined the position maintained by the German Government throughout the war, although popular feeling often clamored for official action in behalf of the Boers.

[Footnote 4: Speech in Reichstag, Dec. 10, 1900.]

A similar course was pursued by the French Government despite the fact that in France popular sympathy was more strongly in favor of the Transvaal than was the case in Germany. No official action, however, was taken which could involve France in complications in view of the declared neutral attitude assumed at the beginning of the war. The administration at Paris ordered the prefects throughout the country to have removed from the official minutes the resolutions of sympathy for the Boers which had been adopted by the provincial councils. But opposed to the correct attitude of the Government, popular feeling was manifested in different ways. A committee of ladies in Paris made a direct appeal to the French people. They declared: "We are not biased enemies of the British Nation ... but we have a horror of grasping financiers, the men of prey who have concocted in cold blood this rascally war. They have committed with premeditation a crime of lese-humanite, the greatest of crimes. May the blood which reddens the battle-fields of South Africa forever be upon their heads.... Yes, we are heart and soul with the Boers.... We admire them because old men and young women, even, are all fighting like heroes.... Alas! to be sure, there is no more a France, nor yet an America.... Ah! Ideal abode of the human conscience, founded by Socrates, sanctified by Christ, illuminated in flashes of lightning by the French Revolution, what has become of thee? There is no longer a common temple for civilized states. Our house is divided against itself and is falling asunder. Peace reigns everywhere save on the banks of the Vaal, but it is an armed peace, an odious peace, a poisoned peace which is eating us up and from which we are all dying."[5] Such hysterical outbursts in France were not taken seriously by the Government, and the feeling which inspired them was possibly more largely due to historic hatred of England than to the inherent justice of the Boer cause.

[Footnote 5: London Times, April 2, 1900, p. 5, col. 5.]

The Ninth Peace Conference, which was in session at Paris in the fall of 1900, without expressly assuming the right of interfering in the affairs of a friendly nation further than to "emphatically affirm the unchangeable principles of international justice," adopted a resolution declaring that the responsibility for the war devastating South Africa fell upon that one of the two parties who repeatedly refused arbitration, that is, it was explained, upon the British Government; that the British Government, in ignoring the principles of right and justice, in refusing arbitration and in using menaces only too likely to bring about war in a dispute which might have been settled by judicial methods, had committed an outrage against the rights of nations calculated to retard the pacific evolution of humanity; that the Governments represented at the Hague had taken no public measures to ensure respect for the resolutions which should have been regarded by them as an engagement of honor; that an appeal to public opinion on the subject of the Transvaal was advocated and sympathy and admiration were expressed for the English members of the conference.[6]

[Footnote 6: London Times, Oct. 3, 1900, p. 3, col. 3.]

The usual French attitude toward Great Britain was expressed in these resolutions, but the conference was not prepared to go so far as to adopt a resolution proposed by a member from Belgium expressing the hope that the mistake of depriving the Republics of their independence would not be committed, and favoring an energetic appeal to the powers for intervention. The resolution was rejected by a large majority on the ground that it would be impolitic and naturally irritating to England and without much probability of favorable results being attained.

When the delegation of the Boers which was sent to appeal to the European Powers for action in behalf of the Republics reached Paris in July, 1900, the attitude of the French Government was not altered, nor were the envoys encouraged to hope for intervention. They were received by the President but only in an informal and unofficial manner when presented by Dr. Leyds. When they reached Berlin in August neither the Emperor nor the Chancellor was in the city and consequently the visit had no official significance, but in St. Petersburg a more favorable reception awaited them. The Official Messenger announced on August 26 that Dr. Leyds had been received in audience by the Czar. This statement, coming as it did from the official organ of the Foreign Office, seemed to signify a full recognition of the accredited character of the delegation, and Dr. Leyds was referred to officially as "Minister of the South African Republic."[7] With the exception of the British Minister, he was received by all of the diplomatic corps, a courtesy which the members could not well have denied him, but as to practical results the mission to Russia amounted to nothing.

[Footnote 7: London Times, July 26, 1900.]

On their return to Germany the envoys received no official notice. The secret instructions which they had opened only upon reaching Milan were supposed to have contained certain communications which had been exchanged between the Governments of the Transvaal and Great Britain but which it was alleged had not been published in the Blue Books. This assertion of sinister motives on the part of Great Britain exerted little influence upon foreign governments in Europe. The delegation realized the impossibility of securing the interference of a concert of Powers or of any one State against the wishes of England. The mission of the Boers had been doomed to failure from the beginning.