[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]