Neutral Rights and Obligations in the Anglo-Boer War

by Robert Granville Campbell

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: