n 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 proceed