This last order was subsequently revoked, and the question of its legality became the subject of discussion in a mixed commission, constituted under the treaty, to decide upon the claims of American citizens, by reason of irregular or illegal seizures of their vessels and cargoes, under the authority of the British Government.

A full indemnification was allowed by the commissioners, under the 7th article of the Treaty of 1794, to the owners of vessels and cargoes seized under the orders in council, as well for the loss of a market as for the other consequences of their detention.

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—­