PRE-EMPTION. In International Law.
The right of pre-emption is the right of a nation to detain the merchandise of stran gers passing through her territories or seas, in order to afford to her subjects the prefer ence of purchase. 1 Chitty, dom. Law 103; 2 Bla. Corn. 287.
According to general modern usage the doctrine of pre-emption, as applied in time of war rests upon the distinction between ar ticles which are contraband (q. v.) univer sally, and those which are contraband only under the particular circumstances of the case. The carrying of the former class en tails 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-emption, which is re garded as a fair compromise between the right of the belligerent to seize, and the claim of the neutral to export his native commodities, though immediately subser vient to the purpose of hostility ; 3 Phill. Int. L. 450; 1 C. Rob. 241. The right of pre emption is said to be rather a waiver of a greater right than a right itself; an indul gence 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 munition§ of war, and also naval materials, should be confiscated as contraband, that, "where as the difficulty of agreeing on precise cases in which alone provisions and other articles not generally contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunder standings which might thence arise, it is further agreed that whenever any such ar ticles so being contraband according to the existing laws of nations shall for that rea son be seized, the same shall not be confiscat ed, 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 mer cantile profit thereon, together with the freight, and also the damages incident to such detention." According to the practice
of the British prize court, a profit of ten per cent. has been usually allowed to the pro prietor of the goods seized, for the purposes of pre-emption ; 3 Phill. Int. L. 451.