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certain to be condemned should be destroyed rather than be forfeited to the capturing state.

In Atlay's edition of Wheaton's International Law it is stated that—

If the vessel belong to the enemy, and the captor has no means of retaining possession of her or of bringing her into port, he is then justified in destroying her, but it is his duty to preserve her papers and as much of the cargo as he can secure. The Confederate cruisers burnt many of their prizes at sea during the civil war, as their own ports were all blockaded by the Federal fleets; and though this was not a proceeding to be approved of, it was not a violation of international law. (P. 506, sec. 359d.)

In regard to the unqualified and universal obligation to release a neutral vessel, Profesor Moore raises a question. He says:

Let us take, for example, the case of a neutral vessel laden with arms and munitions of war, which is captured by a cruiser of one belligerent while approaching a port of the other. Soon afterwards a superior force of the latter belligerent appears, so that the only way to prevent the arms and munitions of war from being conducted to their hostile destination is to burn or sink the vessel in which they are borne. Is the captor bound under such circumstances practically to hand over the vessel and cargo to his enemy? (7 Moore's International Law Digest, p. 523.)

Professor Moore concludes as follows:

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The discussion between Great Britain and Russia during the Russo-Japanese war serves to emphasize the potentially important relation of the question of contraband to the question of destruction. When publicists have spoken of the presence of contraband" as justifying or excusing the destruction of a neutral ship that could not be brought in, they have no doubt had in mind cargoes composed of things specially adapted to use in war and confessedly contraband, such as arms and ammunition, and cannot be assumed to have contemplated the subjection of neutral commerce to general depredation under an extension of the categories of contraband. (Ibid., p. 527.)

Rules of the Institute of International Law.-After much discussion in earlier sessions in regard to limiting destruction to vessels of the enemy, the following regulations were adopted at the Heidelberg meeting of the Institute of International Law in 1887:

SEC. 50. Il sera permis au capteur de brûler ou de couler bas le navire ennemi saisi, après avoir fait passer sur le navire de

guerre les personnes qui se trouvaient à bord et déchargé autant que possible la cargaison, et après que le commandant du navire capteur aura pris á sa charge les papiers de bord et les objets importants pour l'enquête judicaire et pour les réclamations des propriétaires de la cargaison en dommages et intérêts dans les cas suivants.

(1) Lorsqu'il n'est pas possible de tenir le navire à flot, à cause de son mauvais état, la mer étant houleuse;

(2) Lorsque le navire marche si mal qu'il ne peut pas suivre le navire de guerre et pourrait facilement être repris par l'ennemi; (3) Lorsque l'approche d'une force ennemie supérieure fait craindre la reprise du navire saisi;

(4) Lorsque le navire de guerre ne peut mettre sur le navire saisi un équipage suffisant sans trop diminuer celui qui est nécessaire à sa propre sûreté;

(5) Lorsque le port où il serait possible de conduire le navire saisi est trop éloigné.

SEC. 51. Il sera dressé procès-verbal de la destruction du navire saisi et des motifs qui l'ont amenée; se procès-verbal sera transmis à l'autorité supérieure militaire et au tribunal d'instruction le plus proche, lequel examinera et, au besoin, complétera les actes y relatifs et les transmettra au tribunal des prises. (9 Annuaire de l'Institut de Droit International, 228.)

Usual procedure. It is not easy to determine from a superficial examination such as is usually made by a visiting war vessel that destruction of an enemy merchant vessel would not involve serious complications in consequence of the presence of neutral goods on board which are regarded as exempt from capture even under an enemy flag.

The general principle followed by states is to regard the status of a seized vessel as in abeyance till determined by the court.

* * *

The right of search is preliminary to the right of seizure, and the right of seizure depends upon the result of the exercise of the right of search. Even though there may be a legal seizure, it is the duty of the seizing vessel to follow such seizure by affording to the captured party all facilities of defense to which he may be entitled. (The Nancy, 37 U. S. Court of

Claims, 401.)

In general any action toward a captured vessel in the way of appropriation or destruction of cargo must await condemnation by the court.

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Destruction deprives the neutral of much evidence which he might otherwise show in support of the innocence of the destroyed property.

Practical objections to destruction-There are certain practical considerations which at the present time make the destruction of enemy prize a serious question. Some of the considerations were mentioned in the Naval War College Discussions in 1905. Such possibilities as the following were mentioned as making destruction a doubtful proceeding: The possibility of error in the decision of a "quarter-deck court," the liabilities under the provision of the Declaration of Paris exempting neutral goods except contraband from capture, and the fact that unwarranted destruction of any neutral property entails not merely restitution of value but also damages. Certain practical difficulties also arise, as was said in 1905:

The generally enunciated rule in regard to destruction of an enemy's vessel is, "an enemy's ship can be destroyed only after her crew has been placed in safety." If this is to be strictly interpreted, there would be considerable doubt as to whether the deck of a war vessel, whose commander fears that his prize is in imminent danger of recapture because of the approach of his enemy, would be a "place of safety." It is held that the property and persons of belligerents are subject to the hazard of war when coming within the field of operations. It would scarcely follow that such persons should be forced to assume such hazards, particularly when it is a matter of doubt before adjudication by the court whether the vessel is a proper subject for seizure. What is true of the belligerent vessel is even more emphatically true of a neutral vessel.

Many arguments may be urged against the destruction of neutral vessels. Before destruction in any case, the crew, passengers, and papers must be taken from the neutral vessel on board the belligerent ship. These are then immediately subjected to all the dangers of war to which a war vessel of a belligerent is subjected. Such a position may be an undue hardship for those who have not been engaged in the war and one to which they should not be exposed.

A belligerent vessel, with crew, passengers, and papers of the destroyed neutral vessel, may enter a neutral port to which entrance with the vessel itself would be forbidden. This is in effect almost an evasion of the general prohibition in regard to the entrance of prize, because on board the belligerent vessel is

the evidence upon which the decision of the prize court of the belligerent will be rendered. It is certain that a neutral state would be very reluctant to admit within its territory a belligerent vessel having on board the crew and papers of one of its own private vessels which the heiligerent had destroyed. The belligerent vessel might thus obtain the supplies from the neutral which would. enable it to carry to its prize court the evidence in regard to canture.

It does not seem possible in view of precedent and practice to deny the right of a belligerent to destroy his enemy's vessel in case of necessity. Of course if the doctrine of exemption of private property at sea is generally adopted this right can no longer be sustained. The destruction of neutral vessels, not involved in the service of the belligerent is sanctioned neither by precedent nor practice. (International Law Topics, Naval War College, 1905, pp. 73-75.)

Opinion of the British Commission. The questions of capture, sending in, and destruction of private vessels was quite fully considered in the Report of the British Royal Commission on the Supply of Food and Raw Material in Time of War:

106. The only point in this connection which seems to demand special examination is whether the practice ordinarily followed, and generally prescribed, of "sending in a prize with a view to inquiry into her character and that of her cargo by a prize court is, in every case, internationally obligatory. If so, the rule must obviously limit the number of prizes which any one cruiser can capture, to any purpose. The smaller the cruiser the less will she be able to provide the prize crews necessary for taking in " any large number of prizes. For this and other reasons it has not unfrequently happened that captors have sunk or burned their prizes after a necessarily perfunctory inquiry into their nationality and trade.

107. With reference to ships and cargoes unquestionably belonging to the country of the captor or of the enemy, no question of international duty can arise, and a belligerent is entitled to give its cruisers such instructions as regards the disposal of such ships and cargoes as it may think fit. It is for the protection of "innocent" neutral property that international law insists upon opportunity being given for judicial examination into the facts of any capture in which such property may be involved. "Sending in" is, in such a case, internationally obligatory, when it is reasonably possible; and should the retention of the prize by the captor imperil his own safety, or be incompatible with the operations in which he is engaged, his proper course would seem to be to release her (although some national instructions may be quoted

OPINIONS OF BRITISH COMMISSION.

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to the contrary), taking from her a ransom bond, if he is allowed to do so by the regulations of his own Government.

108. The organization of modern war ships would appear to place new difficulties in the way of either "sending in" or destroying prizes on a large scale. Such ships, it is said, could spare but few of their men, trained, as they are, for highly specialized departments of labor, to act as prize crews; nor could they find room on board for the crews which it would be necessary to remove from prizes before proceeding to sink them.

146. Again, engines and machinery have reduced the space available for the personnel of warships as compared with that available in the days of sailing ships. A modern warship could only to a very limited extent furnish prize crews, and she would impair her fighting and steaming capacity by so doing. To some extent she could also accommodate crews of captured merchantmen or could carry a limited number of supernumeraries (if such surplus personnel of trained officers and men should be available) for the purpose of providing prize crews. It follows, therefore, that after a very few captures a warship will be face to face with the dilemma that she must either sink a fresh prize or must take it into port; and if the former alternative is adopted, she must take the crew on board and, owing to the inconvenience which their presence would cause, land them at the earliest opportunity. In either case the warship ceases to be a free operator against Commerce. Hence modern conditions tend to limit the capturing power of regular war cruisers. These observations do not, however, apply to ocean trading steamers converted and armed for the purpose of attacking commerce.

It should be added that torpedo-craft (i. e., destroyers and torpedo boats) can neither spare prize crews nor accommodate anyone above their complement numbers. If, therefore, they are employed against commerce, for which they were never intended, such craft could only compel merchant ships to follow them into port under threat of being torpedoed. Moreover, these craft can only operate within a comparatively short distance of their shore basis. (Vol. I, pp. 25 and 34, §§ 106-108, 146.)

The following questions by Sir John Colomb and replies by Professor Holland also appear in the minutes of the British Royal Commission on the Supply of Food and Raw Material in Time of War, 1905:

6833. In your paper you refer to the limitation put by international law upon the number of prizes taken, by the necessity of furnishing prize crews, and of taking prizes into port?—In the memorandum I discuss the question whether there is a limitation and how far it applies.