Dissenting opinion of Mr. Commissioner Frazer in the Calcutta saltpetre cases. (See p. 49, ante.)

These cases arise out of certain legislative ordinances of the governor-general of India, dated respectively December 21, 1861, and January 3, [Page 231] 1862. By the first of these ordinances the exportation of saltpetre from India was prohibited after that date, except to London and Liverpool, in British vessels, under penalty of confiscation: provided, that the prohibition should not extend to cases where permits to export had previously been granted.

By the second ordinance the provio of the first, excepting cases where permits to export had been granted prior to December 21, 1861, was rescinded; and the article was required to be relanded from vessels in port. The first ordinance was also so modified as to permit the article to be exported in British vessels to any port in the United Kingdom.

In the case of Bush et al., the vessel had a permit to export the saltpeter on board before the date of the first ordinance. She continued to load other goods, placing them upon the saltpetre; and being in the port of Calcutta when the second ordinance was proclaimed, she was not permitted to sail as laden.

In the other cases the saltpetre was laden when the first ordinance took effect, but custom-house permits to export it had not been obtained. In each case the vessels were American and bound for the United States. They were, by the ordinances, required to unlade the saltpetre; but by special arrangement with authorities it was allowed to remain on board, and the vessels waited until the ordinances were rescinded, a period of nearly two months. By this arrangement, it seems that less injury resulted than would have occurred if the saltpetre had been unladen. Damage from Great Britain is claimed for this detention.

The statute of 24 and 25 Vict., chap. 67, seems to have authorized the ordinances in question, not specifically, but by reason of the general power of legislation which it conferred on the authorities in India.

Though Her Majesty was at that time at peace with all the world, yet there existed a reasonable apprehension of speedy war with the United States on account of the recent arrest of Messrs. Mason and Slidell on board the royal mail-steamer Trent, on the high seas. This is an element of importance, establishing that the ordinances of the governor-general of India were proclaimed, not wantonly, bnt as an exercise of authority with a view, bona fide, to protection and self-defense, when the danger of war seemed probable.

A diplomatic correspondence concerning these claims ensued between the two governments. The facts were not controverted; but conceding them, the British government, advised by the law-officers of the Crown, denied all liability, while the American Government very positively asserted it. This alone imparts importance to the question, and suggests that it should receive the most careful consideration.

In the absence of treaty stipulations relating to the subject, it is claimed that the facts constitute a just foundation for a claim.
That the treaty of July 3, 1815, was violated; and therefore there arises a national liability for damages.

If the case is within the treaty of 1815 it is, of course, immaterial to determine what should be our award in the absence of treaty stipulations. By the convention of August 6, 1827, that of 1815 was continued indefinitely, terminable on one year’s notice, which was never given. This was before the statute 24 and 25 Vict., though I do not deem the fact important.

If by treaty the British government contracted not to do that which before it might lawfully and without liability have done, it cannot afterward break its contract without a just liability to answer for the consequences.

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Was there, then, a contract by treaty, by the terms of which Great Britain engaged not to do the things complained of?

By the third article of the treaty of 1815, His Britannic Majesty agreed that citizens of the United States might “freely carry on trade between Calcutta, Madras, Bombay, and Prince of Wales Island, and the United States, in all articles of which the importation and exportation to and from the said territories shall not be entirely prohibited.” The “said territories” can only mean Calcutta, Madras, Bombay, and Prince of Wales Island; for those only were the territories previously mentioned. To carry goods from Liverpool, or elsewhere in the United Kingdom, to Calcutta for sale, would, it can hardly be questioned, be an importation to “said territories” in the sense of the treaty so, then, as long as the importation of a given article from Liverpool to Calcutta was not prohibited, it might also be imported from New York by citizens of the United States. In short, American merchants, by that article of the treaty, acquired the liberty to compete with British merchants in supplying the markets of “said territories.” This is the natural import of the language; and if these claims arose out of similar interference with American importations to Calcutta, say the prohibition to unlade an American cargo under a like ordinance, proclaimed after the arrival of the vessel at Calcutta, I can scarcely conceive that a demand for redress would be denied by Her Majesty’s government. I think that in such a case the language of the treaty would be deemed too plain to admit of construction. And I cannot but think that as to importations to “said territories,” that language expresses the exact intention of the high contracting parties.

As to exhortations, it is not, I think, fairly susceptible of controversy that the literal import of the language used concedes to American citizens rights exactly co-extensive with those which relate to importations. If not to prohibit the carrying of an article from Liverpool to the market of Calcutta is to allow that article to be imported to Calcutta, in the sense of the treaty; though it seems to me plain that not to prohibit the carrying of saltpetre from Calcutta to Liverpool is to allow saltpetre to be exported from Calcutta. In other words, by the plainest language that could possibly have been employed, the quoted words of the treaty concede to the United States a right to export and import from or to “those territories” alike, unless either as to specified articles shall be prohibited entirely, which is not done if exports be allowed from “those territories,” or if imports be allowed to “those territories.”

The question remains, was the taking of saltpetre from Calcutta to Liverpool an exportation of that article from Calcutta in the sense of the treaty?

It is admitted in the intelligent argument of Her Majesty’s counsel that in some sense the carriage of an article from Calcutta, “whether to a port in the United Kingdom or to a foreign port, is an exportation,” nor can this be questioned philologically. The word itself includes the former as well as the latter, whether reference be had to its strict sense or its popular use. For proof of this use, indeed, it is only necessary to refer to the very ordinances complained of in these cases, in both of which the word is several times used in that very sense, and certainly without impropriety. It is also used by Earl Russell in the same sense, in his correspondence with Mr. Adams concerning these claims. It is also used in the statute laws of both countries, as well to indicate the carrying of goods from distant colonies or possessions as from countries wholly foreign.

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So much for the mere words of the treaty. Looking only at the language quoted, the conclusion would seem to be that Great Britain engaged by the treaty to permit citizens of the United States to export from Calcutta to the United States such articles as she should permit to be exported to the United Kingdom or any other place; i. e., the exportation of which should not be “entirely prohibited.” But the words of a treaty must be construed with reference to their subject-matter, so as to forward the intent of the high contracting parties, and not defeat it, and so as to avoid absurd results.

Now, the intent of the third article of the treaty of 1815 undoubtedly was to give to the United States the liberty of direct trade with the places mentioned in the East Indies; so that Americans might purchase and sell there, and with their own ships transport goods to and from their own country, from and to those places. The mischief sought to be remedied was that the United States Government was previously obliged to supply herself with the products of those places at second hand in the markets of Great Britain, and could only exchange her products with them through the same indirect channel.

Now, it must be seen at once that if the British government reserved to itself the right asserted, (continuing herself to trade there,) then the concession which seemed to be made was a mere delusion and snare to American merchants, giving no right which Great Britain might not withdraw at any moment with advantage to her own merchants at home. In short, she could at will resume the entire monopoly of the trade with her East Indian posessions; for it must be borne in mind that the language under consideration, by virtue of which it is contended that the ordinances in question can be justified, applies quite as well to all other commodities as to saltpetre, and to imports as well as to exports. A treaty stipulation with such a meaning would be worse than an utter nullity.

There are some other clauses found in this article of the treaty which need to be considered. There is the clause usual in commercial treaties, which makes citizens of the United States trading in those places “subject in all respects to the laws and regulations of the Britsh government from time to time established.” Of this it is, perhaps, sufficient to say, that it cannot be supposed that such a clause is a reservation of authority to prohibit the very trade which it was the leading purpose of the article to allow. In the language of Earl Russell concerning the same clause, in the first article of the treaty, (letter to Lord Lyons of December 17, 1862,) “it does not mean that the principal engagement itself may be nullified, or may be rendered illusory either in whole or in part; * * * but merely that obedience is to be rendered by foreign traders * * to all the laws and statutes enacted * * for the ordinary and legitimate purposes of internal government and administration. * * I have to observe (he adds) that it is a well-known maxim that treaties are to be interpreted in good faith, and in such a manner that they may have their effect and not be rendered vague or illusory.” And Mr. Seward’s reply (letter to Lord Lyons of January 9, 1863) contains a virtual admission of the correctness of the principle so well stated by Earl Russell.

It may be added that it is impossible to perceive the force of the argument that a year’s notice should be given to terminate the treaty, if it was provided that it could be effectually nullified by one of the parties, at will, by an act of legislation.

But there remains a consideration of much greater weight, as I think. [Page 234] than those which have been alluded to above. Self-preservation and self-defense are sacred rights of nations as well as of individuals; and nothing in a treaty should be taken to have impaired the right of a nation to make prudent preparations for them by husbanding its means of war, when that event seems probable, unless the terms of the stipulation will admit of no other construction.

There is a provision in the article under consideration which shows clearly that the exigency of possible war was distinctly in mind when the treaty was concluded. Indeed, such were the events then existing in the history of both counties that it would have been remarkable if it had not been. The provision is in those words:

Provided only that it shall not he lawful for them, (citizens of the United States,) in any time of war between the British government and any state or power whatever, to export from the said territories, without the special permission of the British government, any military stores or naval stores, or rice.

This exception to the general liberty to trade conceded before, is free from ail ambiguity. That it covers only the case of actual war, shows most clearly that it was not deemed important, and was not intended to make any reservation for the case of war merely apprehended. The one thing being expressed, all else is excluded. Expressio unius est exclusio alterius. This maxim of interpretation is sensible and sound, and I think never was more applicable in any case than here.

If I have correctly interpreted the treaty, then it is of no consequence Whatever that the ordinances applied to all nations alike. A specific engagement definite in its terms can be fulfilled only by the performance of it in all its substantial parts. It is not to be confounded with an engagement to extend only the privileges which shall be allowed to other powers or to the most favored nation.

These considerations seem to me to establish very clearly the validity of these claims, and I am of opinion that damages should be awarded accordingly.