destination the right of preemption as conditional contraband would be operative. The appropriation of the neutral goods would in general have to be based on need rather than on wish for immediate use, i. e., the wish for luxuries which might be on board and belong to the neutral would not be sufficient ground for appropriation, while the immediate need of flour might be a proper ground.

Preemption. In the case of the Haabet in 1800, Sir William Scott states the general doctrine as to preemption as held at that time:

The right of taking possession of cargoes of this description, Commeatus or Provisions, going to the enemy's port, 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 not 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 preemption, that is, to a right of purchase upon a reasonable compensation, to the individual whose property is thus diverted. I have never understood that on the side of the belligerent this claim goes beyond the case of cargoes avowedly bound to the enemy's port, or suspected on just grounds to have a concealed destination of that kind, or that on the side of the neutral the same exact compensation is to be expected which he might have demanded from the enemy in his own port. The enemy may be distressed by famine, and may be driven by his necessities to pay a famine price for the commodity if it gets there; it does not follow that acting upon my rights of war in intercepting such supplies I am under the obligation of paying that price of distress. It is a mitigated exercise of war on which my purchase is made, and no rule has established that such a purchase shall be regulated exactly upon 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 on the commodity that is due, reference being had to the original price actually paid by the exporter and the expenses which he has incurred. As to what is to be deemed a reasonable indemnification and profit, I hope and trust that this country will never be found backward in giving a liberal interpretation to these terms; but certainly the capturing nation does not always take these cargoes on the same terms on which an enemy would be content to purchase them; much less are cases of this kind to be considered as cases of costs

and damages, in which all loss of possible profit is to be laid upon unjust captors; for these are not unjust captures, but authorized exercises of the rights of war. (2 C. Robinson's Admiralty Report, 174.)

In June, 1864, Great Britain adopted "An act for regulating naval prize of war" (27 and 28 Victoria, cap. 25). This act provides for preemption.

38. Where a Ship of a foreign nation passing the seas laden with naval or victualling stores intended to be carried to a port of any Enemy of Her Majesty is taken and brought into a port of the United Kingdom, and the purchase for the service of Her Majesty of the stores on board the Ship appears to the Lords of the Admiralty expedient without the condemnation thereof in a Prize Court, in that case the Lords of the Admiralty may purchase, on the account or for the service of Her Majesty, all or any of the stores on board the Ship; and the Commissioners of Customs may permit the stores purchased to be entered and landed within any port.

By the United States instructions issued June 20, 1898 (General Order 492), it was declared

24. The title to property seized as prize changes only by the decision rendered by the prize court. But if the vessel itself, or its cargo, is needed for immediate public use, it may be converted to such use, a careful inventory and appraisal being made by impartial persons and certified to the prize court.

In the same instructions section 4615 of the Revised Statutes is cited to the effect that

If the captured vessel, or any part of the captured property, is not in condition to be sent in for adjudication, a survey shall be had thereon and an appraisement made by persons as competent and impartial as can be obtained, and their report shall be sent to the court in which proceedings are to be had; and such property, unless appropriated for the use of the Government, shall be sold by the authority of the commanding officer present, and the proceeds deposited with the assistant treasurer of the United States most accessible to such court, and subject to its order in the

cause.

Pradier-Fodéré says:

Dans des tout à fait exceptionels, il est permis de préndre possession des provisions du navire saisi ou capturé; lorsque le croiseur, par exemple, a besoin de houille ou manque de vivres, et qu'il en trouve à bord du navire saisi, il est bien naturel qu'il s'en empare, mais on exige théoriquement que ce soit par préemp

tion, et en prenant des mesures propres à offrir des garanties suffisantes contre des abus toujours possibles de la part de ceux qui, disposant de la force, ne sont que trop portés a s'en servir sans modération. (8 Droit International Public, p. 653, § 3185.)

Perels maintains that an attempt to justify seizure, on payment of indemnity, of articles which may be of use for war, such as provisions, on the ground of preemption is an arbitrary extension of belligerent rights and should be absolutely discountenanced.

In case of urgent need, however, the belligerent may take on payment of ample indemnity neutral goods, particularly provisions bound toward the enemy state, even when their military destination is not clear. This is not based on the right of preemption, but flows from the right of self-preservation in case of urgent necessity, and is of the same character as the right of angary. (Öffentliche Seerecht der Gegenwart, sec. 46.)

The articles for the government of the Navy provide for the removal of goods from a prize under certain circumstances:

16. No person in the Navy shall take out of a prize, or vessel seized as a prize, any money, plate, goods, or any part of her equipment, unless it be for the better preservation thereof or unless such articles are absolutely needed for the use of any of the vessels or armed forces of the United States, before the same are adjudged lawful prize by a competent court; but the whole, without fraud, concealment, or embezzlement, shall be brought in, in order that judgment may be passed thereupon; and every person who offends against this article shall be punished as a court-martial may direct.

The appropriation of neutral goods which the commander of the war vessel wishes which are on an enemy merchant vessel not bound for any enemy destination would be an act of entirely different character from the appropriation of goods under similar conditions which were of the nature of conditional contraband and bound for an enemy destination. If the enemy merchant vessel which resists search is bound for a neutral port the right of preemption does not apply. The neutral goods on this enemy merchant vessel when not having enemy destination are simply liable to the inconvenience

consequent upon the sending in of the vessel for adjudication. The mere wish of the captors of the vessel that they may have these goods for immediate use is not sufficient to justify appropriation even if full compensation is made. Of course there is no opposition from the point of view of international law to the purchase by agreement in advance of any such goods, but the appropriation of innocent goods of a neutral is an act liable to give rise to serious complications.

Even in case of war on land, where the belligerent is in full control and exercising jurisdiction over property, the rules in regard to appropriation are strict.

Preemption in war on land.-In case of war on land it was provided at The Hague in 1899 that

ART. 52. Neither requisition in kind nor services can be demanded from communes or inhabitants except for the necessities of the army of occupation. They must be in proportion to the resources of the country, and of such a nature as not to involve the population in the obligation of taking part in military operations against their country.

These requisitions and services shall only be demanded on the authority of the commander in the locality occupied.

The contributions in kind shall, as far as possible, be paid for in ready money; if not, their receipt shall be acknowledged. (Law and Customs of War on Land.)

American practice and opinion.-The American practice and opinion has generally been to allow the appropriation or destruction of neutral property within belligerent jurisdiction only on the ground of military necessity, and even then full compensation must be paid and, if possible, agreed upon in advance.

Where innocent neutral goods are in an enemy merchant vessel bound for a neutral port no guilt can attach to the goods because the merchant vessel attempts to escape. Of course the goods would be liable to the consequences if it should be necessary to fire upon the enemy merchant vessel to bring her to. If the merchant vessel should be sunk in this way there would be no claim on the part of the neutral owner against the United States. These goods would be liable, as other goods within the

actual area of hostilities, to damages incident to legitimate military operations.

The goods are innocent when the capture as stated in Situation IV is made and the reason for the appropriation is simply the captain's wish for such goods for immediate use. As a general principle this wish would not be a sufficient ground for appropriation of the goods. A desire or wish, however ardent, is not the justification which sanctions the taking of innocent neutral property in the time of war any more than the taking of the same property in the time of peace. Unless the property under consideration is tainted with hostile character, it is as free as under a neutral flag though subject to the inconvenience due to the capture and adjudication of the vessel. The only justification for its appropriation, therefore, would not be the captain's wish for the property for immediate use, but a military necessity such as to demand its appropriation. The Articles for the Government of the Navy are in entire accord with the best practice in requiring absolute need for the use of any of the vessels or armed forces of the United States as justification for the removal of neutral goods from a seized vessel in advance of the decision of the prize court. Military necessity which would justify the appropriation of neutral goods must be of the nature of imperative need for self-preservation; mere convenience or desire is not a sufficient ground for such seizure or appropriation. Full compensation must in all cases be regarded as a sequence of such appropriation.

Conclusion. The goods should not be treated as hostile.

The goods should not be taken from the vessel except for better preservation thereof or unless such articles are absolutely needed for the use of any of the vessels or armed forces of the United States. The appropriation of innocent neutral goods must be justified by military necessity, not by mere wish or desire.