sequently published in the London Times, in reply to one appearing in that journal on the same day from Lord Selborne, Sir Henry James accepts the former's statements as to the details of the transaction, but says that in mitigation of his inaccuracy he must say that the Queen's advocate, who was then one of the law officers, had, he believed, a "residence in close proximity to the river Wye," and he adds: "Perhaps I ought to give up the brown-paper covering without comment, but I know that, when Sir William Harcourt and I, in 1873, appealed to the post-office authorities for the grant of an official bag, we were fortified by being under the impression that the Alabama papers had not been sufficiently protected from the action of enterprising agents.""

The circumstances narrated by Lord Selborne are substanstially the same as those disclosed before the tribunal of arbitration. The law officers of the Crown in 1862 were Sir John Dorney Harding, Queen's advocate; Sir William Atherton, attorney-general, and Sir Roundell Palmer (afterward Lord Selborne), solicitor-general. Evidence directly inculpating the Alabama was communicated by Mr. Adams to the foreign office on July 22 and July 24, 1862, and was sent by the foreign office to the law officers on the 23d and 26th of the same mouth. "All the law officers," says Lord Selborne, "were in London; but Sir John Harding was then seriously ill, and incapable of attending to business, his mind being disordered, and he never afterward recovered. The consequence of his illness was a delay of one or two days which would not otherwise have occurred, the papers having been sent in the first instance to his chambers or his residence." When they reached the hands of

1 March 24, 1893.

2 See Bullock, Secret Service of the Confederate States in Europe, I. 238, 260, 261; Semmes's Adventures Afloat, quoted in Papers Relating to Treaty of Washington, I. 150; G. T. Fullam, an officer of the Alabama, quoted, id. IV. 181. The statements made by these agents of the Confederacy as to the source of their information as to the probable action of the government touching the Alabama are vague. Bullock says he did not receive his information from any officer of the government, but that his solicitor at Liverpool "managed to point out the particulars" of some of the affidavits which were prepared for the United States consul there, and thought they contained allegations which would at least induce the government to detain the ship for investigation. Sinclair, in his Two Years on the Alabama, 10, refers in a general way to the escape of the vessel, but throws no new light on that subject.

Sir William Atherton does not certainly appear, but it is probable that it was on the 28th of July, as it was on the evening of that day that he called Sir Roundell Palmer into consultation upon them in the Earl Marshal's room in the House of Lords. They at once agreed upon an opinion that the vessel should be seized, and this opinion was placed in the hands of Earl Russell on the morning of the 29th of July, the day it bears date. On July 31, 1862, Earl Russell told Mr. Adams that there had been some delay in consequence of Sir John Harding's illness. "Out of this state of facts," says Sir Henry James, commenting upon them in the letter above mentioned, "two questions, I think, naturally arise. First, where were the papers between the 23d and the 29th (28th)? Secondly, what occurred in consequence of that delay! -am unable to answer the first question; yet I think it may be surmised that the documents were either traveling from place to place or were lying unheeded at the private residence of the Queen's advocate. But I can answer the second question. The foreign minister could take no action until he received the law officers' opinion. In the British Case it is stated: "The order of detention, which came too late, was deferred only until the law officers' opinion should be obtained.' During the interval between the 23d and the 29th of July the Confederate agents (to use the language of Mr. George Lefevre when speaking on the subject in 1868) 'got wind' of probable coming events and acted upon their fears. During the night of the 28th the Alabama left the docks in which she had been lying, and at 10 o'clock on the morning of the 29th she sailed out to sea. The order to detain the vessel arrived at Liverpool, according to the British Case, in the afternoon of the 29th."

In a subsequent issue of the Times a correspondent, Dr. Henry Marshall, who writes as a friend of the late Sir Fitzroy Kelly, says that the latter narrated to him how Lady Harding "had shown herself a better wife than subject." The circumstances, as they are said to have been described by Sir Fitzroy Kelly, were that at the time of the escape of the Alabama Sir John and Lady Harding were residing at their house, called Rockfields, on the banks of the Wye, near Monmouth, and Sir John was beginning to show signs of insanity, which his wife

1 Papers Relating to the Treaty of Washington, IV. 459.
2 March 29, 1893.

desired to keep secret, in the hope that he would recover. "The papers relating to the Alabama," says Dr. Marshall, "were sent on from the address in London to Monmouth, and were opened by Lady Harding, who managed to put off sending any reply for three or four days, when a second and more urgent communication compelled her to reveal that her husband was not in a state of mental health to enable him to reply."

Lord Selborne, replying to these statements, says that while he does not doubt that Sir Fitzroy Kelly related to Dr. Marshall the story the latter remembered, he was convinced that Sir Fitzroy Kelly could not have been accurate when he supposed Sir John Harding to have been in Monmouthshire at the time in question, and the papers relating to the Alabama to have been opened there by Lady Harding and sent up to the Foreign Office by her on receipt of "a second and more urgent communication," with the explanation that her husband was not in a state of health to enable him to reply. If this had taken place, Lady Harding's letter would, said Lord Selborne, have been in the possession of the Foreign Office; and there were more occasions than one on which it would have been useful, and would certainly have been brought forward if it had been received. From his communications with Lord Russell, Lord Hammond, and Sir Henry Layard, on several occasions, Hammond and Layard being under secretaries, he was satisfied that no such letter was ever received by that office. And Sir Henry Layard believed that the papers were obtained from Sir John Harding's private residence in London by the help of a gentleman whom he (Sir H. Layard) named, now dead. In conclusion, Lord Selborne says:

"I can not, of course, take upon myself to say that Sir John Harding may not have been in Monmouthshire during some part of the month of July 1862, over the whole of which his illness may in a greater or less degree have extended, as the latest opinion which he signed for the Foreign Office was dated on the 30th of June that year. But I have always,. since the time in question, understood that he was actually under care for an acute mental disorder at the time when the papers were sent for the law officers' opinion on the 23d and 26th of July 1862, and I have always believed, and still believe, that he was then in London."

The curious incident thus discussed is interesting as showing that the escape of the Alabama was, so far as the foreign office

was concerned, in a certain sense the result of an accident, but it does not affect the question of the British Government's liability for the acts of the Alabama. While it may be argued that the exercise of a "due diligence" would not have permitted so great and momentous a delay to result from one law officer's illness, it is also true that the vessel should have been seized before her departure from Birkenhead, as well as afterward, by the customs authorities, to whom the duty of seizing her specially appertained, and who were competent to act independently of any other department of the government. Such was the opinion expressed by Sir Alexander Cockburn, the British arbitrator.1

'Papers Relating to the Treaty of Washington, IV. 460. Discussions of the Geneva Arbitration or of the questions involved in it will be found in the following publications: Pradier-Fodéré, La Question de l'Alabama et le Droit des Gens; Rivier, L'Affaire de l'Alabama et le Tribunal Arbitral de Genève; Rolin-Jacquemyns, in the Revue de Droit Int., 1873; Rouard de Card, Les Destinées de l'Arbitrage International, 75; Kamarowski, Le Tribunal International, 214; Calvo, Le Droit Int., 4th ed. III. 448; Fiore, Nouveau Droit Int. Public, I. 130, 135; III. 464; De Martens, Traité de Droit Int., III. 141; De Neumann, Droit des Gens Moderne, 139; FunckBrentano et Sorel, Précis du Droit des Gens, 459.

Certain facts which have heretofore escaped notice may be mentioned in this note. An invitation to act as counsel for the United States at Geneva was extended to Mr. William M. Meredith, of Pennsylvania, and on the same day to Mr. Cushing. Mr. Meredith seems to have thought of serving, but eventually found himself unable to do so. (Mr. Fish, Sec. of State, to Mr. Meredith, October 16, 1871.) October 25, 1871, Mr. Evarts and Mr. B. R. Curtis were asked to serve conjointly with Mr. Cushing, but Mr. Curtis was unable to accept. November 18, 1871, the services of Mr. Waite were solicited.

The room in which the meetings of the Geneva tribunal were usually held was called the "Salle des Mariages."

A picture of the Joint High Commission, painted by Mr. Frank B. Carpenter, of New York, and entitled "International Arbitration, Washington, 1871," came in 1891 into the possession of Her Britannic Majesty.

CHAPTER XV.

CIVIL WAR CLAIMS: TREATY

BETWEEN

THE

UNITED STATES AND GREAT BRITAIN OF MAY 8, 1871.

In the formal correspondence that preceded Proposal as to Civil the meeting of the Joint High Commission, by War Claims. which the Treaty of Washington of May 8,

1871, was negotiated, Sir Edward Thornton, when Mr. Fish proposed that the Alabama claims should be included among the subjects to be treated of, replied that it would give Her Majesty's government great satisfaction to submit those claims to the consideration of the commission, "provided that all other claims, both of British subjects and citizens of the United States, arising out of acts committed during the recent civil war in this country, are similarly referred to the same commission." To this proposal the United States assented.

Claims Distinct from "Alabama" Claims.

In his instructions to the British commissioners, Lord Granville expressed the expectation that the United States "would readily consent to all claims of British subjects against the United States, or of United States citizens against Great Britain, being referred to a mixed commission, formed of one commissioner for each country and an umpire, as was done under the convention of the 8th of February 1853.3" In the category of claims of citizens of the United States, as used in this passage, the Alabama claims were not included. They were discussed in another part of the instructions. And wherever in this chapter a reference is made to claims against Great Britain, growing out of acts committed during the civil war, only claims other than the Alabama claims will be intended.

1 February 1, 1871, For. Rel. 1873, part 3, 266.

2 Mr. Fish to Sir Edward Thornton, February 3, 1871, For. Rel. 1873, part 3, 267.

3 February 9, 1871, For. Rel. 1873, part 3, 376.