It was, however, urged on the part of the United States, that the 18th article of the Treaty of 1794, manifestly intended to leave the question where it was before, namely, that when the law of nations, existing at the time the case arises, pronounces the articles contraband, they may for that reason be seized; when otherwise, not so. Each party was thus left free to decide what was contraband in its own courts of the law of nations, leaving any false appeal to that law to the usual remedy of reprisals and war.[172]
Since the ratification of this treaty, we have a decision of Lord Stowell, in 1799, on this very subject, in the case of the Haabet, which, however, arose on a question of insurance.
"The right of taking possession of provisions is no peculiar claim of this country; it belongs generally to belligerent nations: the ancient practice of Europe, or at least of several maritime states of Europe, was to confiscate them entirely. A century has now elapsed since this claim has been asserted by some of them. A more mitigated practice has prevailed in later times, of holding such cargoes subject only to a right of pre-emption; that is, to a right of purchase, upon a reasonable compensation, to the individual whose property is thus diverted. This claim on the part of the belligerent cannot go beyond cargoes avowedly bound to the enemy's ports, or suspected on just grounds to have a concealed destination of that kind. The neutral can only expect a reasonable compensation. He cannot look to the price he would obtain in the enemy's port. An enemy, distressed by famine, may be driven by his necessities to pay a famine price; but it does not follow that the belligerent, in the exercise of his rights of war, is to pay the price of distress."[173]
"It is a mitigated exercise of war, on which any purchase is made; and no rule has established that such a purchase shall be regulated exactly on the same terms of profit which would have followed the adventure, if no such exercise of war had intervened; it is a reasonable indemnification, and a fair profit, that is due, reference being had to the price originally paid by the exporter, and the expenses he has incurred."
[Sidenote: Neutral Vessels Transporting Enemy's Forces.]
Transporting the Enemy's Forces, subjects a Neutral Vessel to confiscation, if captured by the opposite belligerent. Sir Wm. Scott says, in the leading case on this subject—
"That a vessel hired, by the enemy, for the conveyance of military persons is to be considered as a transport, subject to condemnation, has been in a recent case, held by this Court, and on other occasions.[174] What is the number of military persons that shall constitute such a case it may be difficult to define. In the former cases there were many, in the present they are fewer in number; number alone is an insignificant circumstance in the considerations on which the principles of law on this subject are built; since fewer persons of high quality and character may be of more importance than a much greater number of persons of lower condition. To send out one veteran general of France to take command of the forces at Batavia might be a much more noxious act than the conveyance of a whole regiment. The consequences of such assistance are greater, and therefore it is what the belligerent has a stronger right to prevent and punish. In this instance the military persons are three,[175] and there are besides two other persons who were going to be employed in civil capacities in the Government of Batavia. *** It appears to me, on principle, to be but reasonable that, whenever it is of sufficient importance to the enemy that such persons should be sent out on the public service, and at the public expense, it should afford equal ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with hostile operations.[176] The fact of the vessel having been pressed into the enemy's service does not exempt her. The master cannot aver that he was an involuntary agent."[177]
[Sidenote: Neutral Ships Carrying Enemy's Despatches.]
Carrying the Despatches of the Enemy is also a ground of condemnation.
"In the transmission of Despatches may be conveyed the entire plan of a campaign, that may defeat all the plans of the other belligerent, in the world. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character—as an act of the most hostile nature. The offence of fraudulently carrying despatches in the service of the enemy being greater than other contraband, some other penalty has to be affixed. The confiscation of the noxious article would be ridiculous when applied to Despatches. There would be no freight dependent on their transportation. The vehicle (i.e. the ship) in which they are carried must, therefore, be forfeited."[178]