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On the 3d January, 1862, the following notification was issued and additional ordinance was promulgated by the governor-general of India:

NOTIFICATION.

FORT WILLIAM, January 3, 1862. Whereas it is declared by the ordinance passed by the governor-general of Iudia, on the 27th December, 1861, that until the governor-general, in council, shall otherwise order, it shall not be lawful for any person to export saltpetre from any part of Her Majesty's territories in India, except in British vessels bound either to the port of London or to the port of Liverpool; and whereas it appears from instruction since received from Her Majesty's government that the prohibition to export saltpetre from India, so far as regards British vessels is to apply only to such vessels when bound to ports not within the United Kingdom, the governor-general, in council, is pleased to order, accordingly, that it shall be lawful to export saltpetre on British vessels bound to any port of the United Kingdom, anything in the said ordinance notwithstanding. By order of the governor-general, in council.

W. GREY,

Secretary to the Government of India.

LEGLISLATIVE.

JANUARY 3, 1862.

The following ordinance, passed by the governor-general of India, on this date, is promulgated for general information:

AN ORDINANCE to prohibit the exportation of saltpetre, except in British vessels bound to the United Kingdom, passed by the governor-general of India, under the provisions of 24 and 25 Vic., c. 67, on the third of January, 1862.

Whereas in a dispatch from the secretary of state for India, dated the third December, 1861, the instructions of Her Majesty's government have been received by the governor-general, in council, to take immediate measures for preventing the exportation of saltpetre from India, except in British vessels bound for the ports in the United Kingdom, and to cause any saltpetre which, previously to the receipt, and contrary to the conditions of the said instructions, may have been placed on board vessels still in port, to be re-landed; and whereas, in consequence of the said instructions, the governor-general, in council, has this day ordered that it shall be lawful to export salt petre on British vessels bound to any port of the United Kingdom, anything in the ordinance of the governor-general the 27th December, 1861, notwithstanding; and whereas it is expedient to make further provision for giving effect to the instructions now received from Her Majesty's government: It is, therefore, ordered as follows:

I. Until the governor-general, in council, shall otherwise order, it shall not be lawfu to export saltpetre from any part of Her Majesty's territories, except in a British vessel bound to a port of the United Kingdom.

II. All saltpetre which previously to the promulgation of this ordinance may have been placed for exportation on any vessel still being within a port of Her Majesty's territories in India, and not being a British vessel bound for a port of the United Kingdom, shall be re-landed.

III. No collector of customs or other officer shall grant a port-clearance to any vessel having on board saltpetre, other than a British vessel bound for the United Kingdom. IV. If any person shall attempt to export saltpetre contrary to the provisions of this ordinance, the same shall be seized and confiscated.

V. Any custom-house officer may without warrant seize saltpetre liable to confiscation under this ordinance.

W. GREY, Secretary to the Government of India.

The vessels in question having their cargoes on board, and their masters believing that the prohibition would be but temporary, it was not deemed expedient to unload the saltpetre which lay, in each case, at the bottom of the hol, thus requiring the unlading of the entire cargo; and the vessels accordingly remained in port at Calcutta until 28th February, 1862, on which day the several ordinances prohibiting the exportation of saltpetre were revoked. They were respectively ready to sail with their cargoes, but for the prohibition, on the 3d, 8th, and 20th days of January, respectively; and the claim in each case was for demurrage from the time the vessels were respectively ready to sail until permitted to sail by the revocation of the ordinances, it being averred in each case that the demurrage thus claimed was less than the expense of unlading the cargo would have been.

The masters of the respective vessels duly protested before the United States consul-general at Calcutta against the prohibition of exportation of saltpetre, and against the detention of their vessels by occasion thereof, claiming their damages for the demurrage. The claims were, during the year 1862, made the subject of diplomatic correspondence between the two governments, the United States claiming compensation ou behalf of the parties aggrieved, and the British government vindicating the legality of the ordinances and of the prevention of the sailing of the vessels with the saltpetre on board during the continuance of such ordinances.

The provisions of the statute of 16th and 17th Victoria, under which the royal proclamation was issued, and upon which the ordinances of the governor-general were founded, are recited in the royal proclamation above given. The convention between the United States and Great Britain of July 3, 1815, continued by the conventions of 20th October, 1818, and of 6th August, 1827, and in force at the time of the acts in question, are as follows:

ARTICLE III. His Britannic Majesty agrees that the vessels of the United States of America shall be admitted and hospitably received at the principal settlements of the British dominions in the East Indies, videlicet: Calcutta, Madras, Bombay, and Prince of Wales' Island; and that the citizens of the said United States may freely carry on trade between the said principal settlements and the said United States, in all articles of which the importation and exportation, respectively, to and from the said territories, shall not be entirely prohibited; provided only, that it shall not be lawful for them, 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. The citizens of the United States shall pay for their vessels, when admitted, no higher or other duty or charge than shall be payable on the vessels of the most favored European nations, and they shall pay no higher or other duties or charges on the importation or exportation of the cargoes of the said vessels than shall be payable on the same articles when imported or exported in the vessels of the most favored European nations.

But it is expressly agreed that the vessels of the United States shall not carry any articles from the said principal settlements to any port or place, except to some port or place in the United States of America, where the same shall be unladen.

It is also understood that the permission granted by this article is not to extend to allow the vessels of the United States to carry on any part of the coasting trade of the said British territories; but the vessels of the United States having, in the first instance, proceeded to one of the said principal settlements of the British dominions in the East Indies, and then going with their original cargoes, or part thereof, from one of the said principal settlements to another, shall not be considered as carrying on the coasting trade. The vessels of the United States may also touch for refreshment, but not for commerce, in the course of their voyage to or from the British territories in India, or to or from the dominions of the Emperor of China, at the Cape of Good Hope, the island of St. Helena, or such other places as may be in the possession of Great Britain in the African or Indian seas; it being well understood that in all that regards this article the citizens of the United States shall be subject, in all respects, to the laws and regulations of the British government from time to time established.

The proclamation and ordinances in question were promulgated by occasion, and in view of the arrest on the high seas of the British mailsteamer Trent, and the taking from that vessel of Messrs. Mason and Slidell, agents and emissaries of the confederate government, by a vessel of war of the United States, and in the apprehension of probable hostilities between the United States and Great Britian on account of such arrest and seizure.

On the part of the claimants it was contended that, irrespective of treaty stipulations between the United States and Great Britain, the proclamation and ordinances were in effect an embargo on saltpetreladen vessels bound for non-British ports, at least during the time it would take to unlade the saltpetre; that it was a civil, as distinguished from a hostile, embargo, not directed against vessels of the United States exclusively, but as a husbanding of resources merely, though in anticipation of probable hostilities, and thereby having some features of a hostile embargo; that even in the case of a hostile embargo, if war does not ensue, innocent sufferers have a just claim for indemnity, recognized by international law and practice; that a fortiori there is always a just claim for indemnity by sufferers in the case of a civil embargo; that the fact that the embargo was justified by the municipal law of Great Britain did not relieve that government from liability under international law; that the action of the American commander in the arrest of the Trent, and the seizure and removal of the two passengers named, were not justified by his instructions, and were subsequently disavowed by his government, and therefore no international wrong was ever committed by the United States; and that, therefore, such action afforded no justification of measures by the British government in anticipation of war, even if the measures in question would have been justified by the emergency, if the acts of the officer had been avowed by his government; that if the royal proclamation and the ordinances were not to be considered as constituting an embargo, but only a matter of domestic and police regulation, they certainly constituted a violation of the rights of friendly foreigners, and involved liability for compensation; and that, in the case of the Daring, the ordinance of the 27th December having clearly given her the right to sail with the cargo already loaded, this permission, with the subse

quent acts done and expense incurred by her owners on the faith thereof, in continuing to lade their cargo on top of the saltpetre, in reliance on the ordinance, constituted a contract, and entitled the vessel to the observance of that contract by the Indian authorities.

Under the treaty between Great Britain and the United States, the claimants respectively contended that the right of the vessels in question to sail with the saltpetre on board was guarantied by the terms of the treaty. That "exportation" of saltpetre "from the said territories" was not "entirely prohibited" by the terms of the ordinances, for such exportation was allowed to England. That transportation from India to England was an "exportation from the said territories," and was so recognized by the terms of the proclamation itself, which recited, "it shall not be lawful for any person to export saltpetre from any part of Her Majesty's territories in India, except in a British vessel bound either to the port of London or to the port of Liverpool." That the acts in question were plainly not "in time of war between the British government and any state or power whatever." That the language of the treaty providing "that in all that regards this article, the citi zens of the United States shall be subject in all respects to the laws and regulations of the British government from time to time established," could not be construed so as to authorize the local authorities to deny rights expressly stipulated for in the treaty, and formed no bar to the right of the claimants to sail with the saltpetre on board their vessels, the same having been lawfully taken on board.

The claimants' counsel cited the Boedes Lust, 5 Rob., 246; Beawes Mer. Law, 276; U. S. Stat. at L., 381, re-imbursing sufferers from the Bordeaux embargo; Dana's Wheaton, p. 4, §15; p. 373, §293; 3d Phill., 42; Honeyman arguendo, in Aubert vs. Gray, 3 B. and S., Q. B., 179; letter of Lord Clarendon to Mr. Dallas, of May 15, 1856, Br. and Am. Dip. Cor.; Gardn. Inst. of Int. Law, 546.

Her Majesty's counsel maintained that both under international law, irrespective of treaty stipulation, and under the treaty stipulations. between the United States and Great Britain, the proclamation and ordinances in question were lawful and valid, and involved no liability for compensation to parties injured by their provisions. That they were general regulations, not directed against the ships or cargoes of these claimants in particular, nor subjecting the ships or commerce of the United States to any discrimination or disadvantage not common to all other foreign nations. That even British ships were subjected to the same disadvantage; and the right of exporting saltpetre to the mother country reserved to them was a right which never had belonged to the United States. That commercial adventures of this character were, in the nature of things, subject to any modification of law which might affect the anticipated profits, and perhaps defeat them altogether. That the ordinances did not constitute an embargo in any just sense, whether hostile or civil. That they were municipal regulations of trade,

not forbidden by any principle known to the law of nations. And that, aside from the treaty between the United States and Great Britain, they were clearly authorized by international law. That a just interpretation of the third article of the convention of 1815 must hold it not to prohibit the British government from regulating the exportation of products of the Indies, from time to time, as might be deemed expedient, or in its discretion from temporarily prohibiting the exportation of some or all of such products to any foreign nation whatever. And that of the occasion of such prohibition and its extent, every nation must of necessity be for itself the sole judge.

That the treaty permitting the trade between the Indian ports and the United States in articles the exportation of which "shall not be entirely prohibited," gave no right to those citizens to export saltpetre at the time in question, the exportation of that article being by the terms of the ordinances entirely prohibited. That the word “exportation" referred to foreign commerce, and not to the transportation from the Indies to the home ports of Great Britain. That the reservation of the right of transportation to such home ports was in no respect preju dicial to the commerce of the United States, they having no right to participate in the trade between Indian ports and the ports of Great Britain. That the treaty itself providing for this trade also provided that the citizens of the United States should be subject in all respects to the laws and regulations of the British government, and thus expressly subjected them to the operation of ordinances like those in question authorized by the statute upon which they were based. That the ordinances of 27th December and 3d January were just, caused by an act of an armed vessel of the United States in violation of international law, and affording a reasonable apprehension of hostilities to ensue between Great Britain and the United States. That in such case all means of protection and self-defense, not in themselves at variance with the ordinary principles of justice, and impartially used, were permissible to every government, and that this prerogative having been exercised bona fide for the safety of the realm on a particular emergency by a prohibition equally affecting native subjects and foreign merchants, the latter have no ground upon principles of international right or justice to require compensation for such an unavoidable diminution of their commercial profits.

The commission disallowed all the claims, Mr. Commissioner Frazer dissenting and reading a dissenting opinion, a copy of which will be found in the appendix, E.

Tripp's case.

Josiah Winslow Tripp vs. Great Britain, No. 15.

The claimant in this case alleged, in substance, by his memorial that prior to August, 1862, he was lawfully possessed of a certain limestone

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