without further proceedings, as the question of validity of the prize is not, in case of destruction, before the court, unless "exceptional necessity" is first proven.

Even if "exceptional necessity" is proven, the entire question of validity of the capture is still to be settled in the usual manner. If the capture is declared good, no compensation is due the parties interested; if the capture is declared void, the parties interested have full right to compensation.

If innocent neutral goods have been destroyed with a neutral vessel, the owner is entitled to compensation.

(c) Laws and regulations provide for the appropriation before adjudication of vessels captured as prize after they have been properly appraised.31

In accordance with article 40 of the Declaration of London: "The confiscation of the vessel carrying contraband is allowed if the contraband forms, either by value, by weight, by volume, or by freight, more than half the cargo."

In accordance with article 44:

"A vessel stopped because carrying contraband, and not liable to condemnation on account of the proportion of contraband, may, according to circumstances, be allowed to continue her voyage if the master is ready to deliver the contraband to the belligerent ship.

"The delivery of the contraband is to be entered by the captor on the log book of the vessel stopped, and the master of the vessel must furnish the captor duly certified copies of all relevant papers.

"The captor is at liberty to destroy the contraband which is thus delivered to him."

It might happen that the master of a merchant vessel would be unwilling to hand over the contraband on board, and that the commander of the belligerent war ship would not be in

31 Perels, Öffentliche Seerecht, § 55.

Whenever any captured vessel, arms, munitions, or other material are taken for the use of the United States before it comes into the custody of the prize court, it shall be surveyed, appraised, and inventoried, by persons as competent and impartial as can be obtained, and the survey, appraisement, and inventory shall be sent to the court in which proceedings are to be had. Rev. St. § 4624 (U. S. Comp. St. 1901, p. 3130).

position to take the neutral vessel to port. If in such a case the belligerent can show the "exceptional necessity" which would justify the destruction of the vessel if it were liable to condemnation, he may demand the handing over of the goods liable to condemnation or proceed himself to their destruction. The same liabilities rest upon the belligerent captor as when destroying a neutral vessel. He must first prove "exceptional necessity," failing which he must pay compensation; and, having proved "exceptional necessity," he must then prove the liability of the goods to condemnation, failing which he must pay compensation.32

(d) Formerly belligerents, under the right of angary, compelled neutral merchant vessels which they had seized to render service for them in transport of troops or otherwise. While this practice has been discontinued, neutral property has been seized for military use, with liability to full indemnity.33

82 Appendix, p. 580.

33 Hall, Int. Law (5th Ed.) pp. 736–739; 3 Phillim. Int. Law, § 29; Bluntschli, § 795 bis. Mr. Hall recites a case of the enforcing of this right upon neutral property passing within neutral territory: "Some English vessels were seized by the German general in command at Rouen, and sunk in the Seine at Duclair, in order to prevent French gunboats from running up the river, and from barring the German corps operating upon its two banks from communication with each other. The German commanders appear to have endeavored in the first instance to make an agreement with the captains of the vessels to sink the latter after payment of their value, and after taking out their cargoes. The captains having refused to enter into any such agreement, their refusal was, by a strange perversion of ideas, considered to be an infraction of neutrality,' and the vessels were sunk by the unnecessarily violent method of firing upon them while some, at least, of the members of the crews appear to have been on board. The English government did not dispute the right of the Germans to act in a general sense in the manner which they had adopted; and, notwithstanding the objectionable details of their conduct, it confined itself to a demand that the persons whose property had been destroyed should receive the compensation to which a dispatch of Count Bismarck had already admitted their right. Count Bismarck, on his side, in writing upon the matter, claimed that 'the measure in question, however exceptional in its nature, did not overstep the bounds of international warlike usage.' But he evidently felt that the violence of the methods adopted needed a special justification, for he went on to say: "The report shows that a pressing danger

The Hague Convention of 1907 provides for the use of neutral railway material in case of necessity, with liability to compensation."

was at hand, and every other means of meeting it was wanting. The case was, therefore, one of necessity, which even in time of peace may render the employment or destruction of foreign property admissible under the reservation of indemnification.'"

34 "Article XIX. Railway material coming from the territory of neutral powers, whether it be the property of the said powers or of companies or private persons, and recognizable as such, shall not be requisitioned or utilized by a belligerent except where and to the extent that it is absolutely necessary. It shall be sent back as soon as possible to the country of origin.

"A neutral power may likewise, in case of necessity, retain and utilize to an equal extent material coming from the territory of the belligerent power.

"Compensation shall be paid by one party or the other in proportion to the material used, and to the period of usage."

Rights and Duties of Neutral Powers and Persons in Case of War on Land, Appendix, p. 548.

WILS.INT.L.-27

186. Contraband of war may be said to consist of those articles which are of use for war, and which, when bound for a belligerent destination, are liable to capture and confiscation.

It has been usual for each belligerent to proclaim in public manner what articles will be regarded as liable to seizure, and these are regarded as contraband, "contra bandum." As the idea of neutrality as at present understood was late in development, the word "contraband" was used in domestic law rather than international agreement. The term does not occur in early codes, like "Il Consolato del Mare," though the idea was fairly clear. Grotius does not in 1625 use the name "contraband," though he describes the articles. There is mention of contraband in a treaty between England and Holland in that year. Other proclamations of the same period enumerate "prohibited articles of commerce." Thus there was an attempt of the belligerents to impose restrictions upon the action of other states. The practice led to great diversity in the lists of articles prohibited by the different states, and even by the same state at different times. The action of the Armed Neutrality of 1780 tended to give an international sanction to a list of contraband. From this time the British and continental doctrines in regard to contraband are fairly distinct. The continental doctrine has tended to limit the list broadly to munitions of war, while the British tendency has been toward a more inclusive classification.

13 Nys, Droit Int. p. 640.

The term "contraband" was used in the Declaration of Paris in 1856, but was not defined. All states were agreed that, in order to render an article liable to capture as contraband, two conditions were essential: (1) That the article might be of use for war; and (2) that it should have an enemy destination. Thus it was necessary that there should be something in the nature of the article and in its destination which would make it of use for warlike purposes. All states were not agreed as to just what articles were of use for war, or as to just what might constitute a hostile destination, and varying opinions upon these points were given in the courts of different states. This uncertainty gave rise to much friction between belligerents and neutrals, and was often the cause of grave inconvenience, great disturbance in insurance rates, and loss of trade.

It is to the interest of the neutral to have as few articles as possible proclaimed contraband, while the belligerent may desire to extend the list. It had been proposed that the states of the world abandon the principle of contraband altogether.2 The Conference at The Hague in 1907 was not able to reach

2 "With regard to contraband, many most difficult questions arose during the late war. These cases were sufficient to show that the rules with regard to contraband that were developed at the end of the eighteenth and the beginning of the nineteenth centuries are no longer satisfactory for the changed conditions under which both commerce and war are now carried on. His Majesty's government recognize to the full the desirability of freeing neutral commerce to the utmost extent possible from interference by belligerent powers, and they are ready and willing for their part, in lieu of endeavoring to frame new and more satisfactory rules for the prevention of contraband trade in the future, to abandon the principle of contraband of war altogether, thus allowing the oversea trade in neutral vessels between belligerents on the one hand and neutrals on the other to continue during war without any restriction, subject only to its exclusion by blockade from an enemy's port. They are convinced that not only the interest of Great Britain, but the common interest of all nations, will be found, on an unbiased examination of the subject, to be served by the adoption of the course suggested." Sir Edward Grey to Sir Edward Fry, First Plenipotentiary, British Parliamentary Papers, Second Peace Conference at The Hague, 1907, Miscellaneous No. 1 (1908), p. 25.