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 exportations, 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.

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.

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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.

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 na tion 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 be 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 all 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 valid ity of these claims, and I am of opinion that damages should be awarded accordingly.

F.

Mr. Commissioner Frazer's dissenting opinion in the case of Henry Henderson vs. United States. No. 410. See p. 49, ante.

Henderson, in whose behalf Great Britain makes this claim, is a British subject by birth, and has taken no steps toward becoming natural ized in this or any other country. He became domiciled near Port Hudson, in the parish of West Feliciana, in 1850, employed in cultivating and dealing in cotton, and has ever since resided there. There is no room to doubt that it was his voluntary and permanent domicile. It is not even alleged that he maintained a personal neutrality during any period of the rebellion, and there is no proof whatever of that fact. In June, 1863, he owned in the neighborhood of 112 bales of cotton. After twenty-seven days of effort by continuous fighting, General Banks, commanding the United States forces investing the fortified town of Port Hudson, held by the rebels, found himself unable to carry the works by assault, and thereupon commenced a regular siege of the place. Cotton found in the neighborhood, including Henderson's, was, without discrimination, seized by the United States forces, and used almost exclusively in the construction of fortifications, a purpose to which cotton in bales

is known to be well adapted in the emergencies of a siege. The officer who took Henderson's cotton gave papers as follows:

Received, Bienvenue plantation, West Louisiana, from the plantation of Jed. D. Smith, fifty-one (51) bales of cotton, by order of Col. S. B. Holabird; seized by order. T. K. FULLER, Capt. Seventy-fifth N. Y. Vols., A. A. Q. M.

JUNE 10, 1863.

JUNE 12, 1863.

I have taken, by order of Col. S. B. Holabird, for the United States Government, 133 bales of cotton from the Carmina plantation, West Louisiana.

(Signed as above.)

The fortifications and works of the besiegers were extensive, being equal to a continous line of over seven miles. After the fall of Port Hudson, the cotton was gathered up, cleaned, and sold, and the proceeds applied to the use of the troops of the United States.

Under these facts the majority of the commission determine that Henderson has a valid claim against the United States for the value of his cotton, and an award is made in favor of Great Britain accordingly.

I cannot join in this award, and the principles of public law involved in it and contravened by it, seem to me so very important and so well settled, that I feel it my duty respectfully to state the reasons which control my action now and may control it in other cases.

1. That a foreigner domiciled in the United States, voluntarily remaining in a hostile part of it, in rebellion against it, that part recognized by the country of his origin as a belligerent, thus choosing to trust himself to its protection, thus being in law an enemy of the United States, without even pretending that he was in fact neutral, may be recognized as entitled to maintain a claim against it for property appropriated by its invading armies, when no citizen of the United States could under like circumstances claim such consideration, is a proposition to which I must enter an earnest and emphatic dissent. If it has any support in equity, justice, or the public law, then I am greatly in error.

2. The cotton was the property of an enemy of the United States, so recognized by every writer upon international law, and so held by all tribunals, both American and British as well as continental, in every reported case involving the question. The mixed commission, constituted under the convention of 1853, between the two countries, so held in Laurent's case. Indeed, it went further, and held that an unnaturalized Englishman voluntarily domiciled in a country at war with the United States was not even to be regarded as a British subject; thus going a little too far, as I think.

The property of Henderson was as liable to capture as the property of Jeff. Davis himself, or any rebel in arms. I believe this is not questioned. That the property itself was a proper subject of capture on land under the modern rules by which civilized nations govern themselves in war, seems to me to be quite as clear.

The legislation and the known practice of the rebel authorities made it so. They made cotton the basis of their public credit by a policy which aimed to deal largely in it on government account, to purchase it even before it was grown, and hypothecate it as security for the payment of loans, with the proceeds of which they did, to a large extent, supply themselves with arms and munitions of war, and with a fleet of armed vessels to infest the ocean and destroy American commerce. They committed it to the flames, whether owned by friend or foe, rather than permit it to reach the markets of the world otherwise than through their own ports; thus endeavoring by warlike operations to secure to

themselves a monopoly in supplying the foreign demand, that they might thereby constrain nations abroad to aid them in their struggle. In short, cotton was a special and formidable foundation of the rebel military power. It was more important than arms or ships of war, for it supplied these and all else beside. It was more potent than gold, for it not only commanded gold, but it largely enlisted in behalf of the rebels the interests of foreigners whose manufacturing industry was in a measure paralyzed because this staple was needed to keep it in motion. The necessities and purposes of war, therefore, required its capture at every opportunity more imperatively than the capture of munitions and implements of war; indeed, that necessity was quite as pressing and certainly as humané as the killing of men in battle; for it was no less efficient as a means of accomplishing the subjugation of the rebel armies, and re-establishing the national authority. It is to me astonishing if there is a difference of opinion upon this subject.

The Supreme Court of the United States, recognizing to the fullest extent all the limitations which the practice of nations has lately engrafted upon the right of capture upon land, so held in the case of a loyal American widow. (See the case of Mrs. Alexander's Cotton, 2 Black.) This is high authority, especially when it is remembered that that august tribunal has certainly exhibited no tendency whatever to give undue license to military authority or warlike operations. Complaint, if any, has been altogether in the other direction. But I would be quite content, in the absence of any authority, to trust the question with the common sense of all civilized nations so long as war in any form shall be recognized as a lawful method of deciding differences. If the capture was rightful by the laws of war, it would be a novelty in international law that its exercise involves an obligation to make compensation.

3. But another point remains, which in my judgement is absolutely conclusive agaisnt any award on account of this claim, if the rules of international law should control the determination of the question. Henderson was voluntarily and permanently domiciled in one of the rebellious States, the territory held by the so-called Confederate States recognized by Great Britain as a belligerent. By that act of recognition all British subjects were bound. If they chose to remain in that part of the world, they voluntarily took the chances of war and intrusted their interests to the protection of that organization. They must look to it for protection from the results of war; and now that it has, by the fortunes of war, been exterminated, the country of their origin has no right (save possibly in exceptionally flagrant cases) to intervene in their behalf as against the United States for indemnification. This I think is as clearly established as a rule of international law as anything can be. It was so held in Laurent's case, supra. It was so declared by the American Secretary of State in reference to the bombardment of Greytown, and was then assented to by the English government under the advice of the law-officers of the Crown. The Attorney-General on that occasion declared in Parliament that every jurist admitted it. He said "the principle which governed such cases was that the citizens of foreign states who resided within the arena of war had no right to demand compensation from either of the belligerents." (See Wheat. Int. Law, 173—note by Lawrence.) This rule is so much in the interest of the peace of nations that it should be steadfastly maintained. A right to interfere is so intimately associated with the duty of doing so, that any relaxation of this principle would but multiply occasions of war and afford too many opportunities for that armed intervention in the quarrels of others which is sometimes sought, in vain, by ambitious rulers.