Pre-Emption

In International Law. The rig&t of pre-emption is the right of a nation to detain the merchandise. of strangers passing through her territories or seas, in order to afford to her subjects the preference of purchase.

1 Chitty, Com. Law 103; 2 Bla. Com. 287.

According to general modern usage the doctrine of pre-emption, as applied in time of war rests upon the distinction between articles which are contraband ( q. v.) universally, and those which are contraband only under the particular circumstances of the case. The carrying of the former class entails the penalty of confiscation, either of ship or cargo or both. The latter class, while confiscable according to strict law, are sometimes merely subjected to the milder belligerent right of pre-emplion, which is regarded as a fair compromise between the i*ight of the belligerent to seize, and the claim of the neutral to export his native commodities, though immediately subservient to the purpose of hostility; 3 Phill. Int L. 450; 1 C. Rob. 241. The right of preemption is said to be rather a waiver of a greater right than a right itself; an indulgence to the neutral rather than a right of the belligerent; Ward, Contraband 196. This right is sometimes regulated by treaty. In the treaty made between the United States and Great Britain, November 19, 1794, ratified in 1795, it was provided, after mentioning that the usual munitions of war, and also naval materials, should be confiscated as contraband, that, “whereas the diiliculty of agreeing on precise cases in which alone pro\isions and other articles not generally contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise, it is further agreed that whenever any such articles so being contraband according to the existing laws of nations shall for that reason be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified; and the captors, or, in their default, the government under whose authority they act, shall pay to the masters or owners of such vessel the full value of all articles, with a reasonable mersuch detention.” According to the practice j PREFERENCE. The paying or securing of the British prize court, a profit of ten per to one or more of his creditors, by an insolcent has been usually allowed to the pro- vent debtor, the whole or a part of their prietor of the goods seized, for the purposes claim, to the exclusion of the rest The right of pre-emption; 3 Phill. Int. L. 451. which a creditor has acquired over others See Neutrality. to be paid first out of the assets of his debt-