[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]