and which alone, is recognized and permitted by the fundamental institutions of that state." Certain passages on the subject of due diligence are also quoted from Sir Alexander Cockburn's dissent, with comments from which it might be implied that a majority of the arbitrators held that the neutral must employ "perfect diligence."

Doubtless it is true that if we take particular expressions in the individual opinions of the arbitrators and in the award, and construe them without reference either to the context or to the results at which the tribunal arrived, it may not be difficult to find matter for criticism. For example, the representation that four of the arbitrators "virtually" announced a "dogma" subversive of the legislative independence of states evidently is based on their declaration in the case of the Alabama that “the government of Her Britannic Majesty cannot justify itself for a failure of due diligence on the plea of insufficiency of the legal means of action which it possessed." It is not asserted that this declaration actually contains the dogma in question, but it is alleged that it "virtually" does so. On the other hand, it may be said that the declaration was merely intended to express the sound general principle, peculiarly applicable to the case of the Alabama, which Earl Russell had admitted to be a "scandal and reproach" to British laws, that a government can not be allowed to say, when called upon to perform its international duties: "The laws do not permit me to do so." It is a self-evident proposition that if a government may by legislation fix the measure of what it owes to other states, there is no such thing as international law or international obligation. To say that a government can not "justify" a failure in duty by pleading the "insufficiency" of its laws by no means warrants the inference that, in determining whether it has been negligent, "no regard whatever " is to be paid to its system of criminal process.

We have referred to certain passages from Sir Alexander Cockburn on the subject of due diligence. The rule laid down in these passages and approvingly commented upon by Wharton is that which the "diligens paterfamilias suis rebus adhibere ,, solet; or in the form in which Wharton expresses it, "such diligence as under the circumstances of the particular case good business men of the particular class are accustomed to show." To what extent does this differ from the rule laid down by the four arbitrators? The award declares that the

1

due diligence referred to in the rules "ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part." What is the degree of diligence which the "diligens paterfamilias," or the "good business man" is accustomed to show? Wharton, in his work on Negligence, says that it is "proportionate to the duty imposed; " that "the same act may or may not be negligent as the probability of injury ensuing from it may be greater or less; and that in order to avert the charge of culpa levis," which he defines as the negligence of a good business man in his specialty, the "amount of care bestowed must be equal to the emergency."3 Pollock' says that in determining the question of negligence, which is merely the contrary of diligence, the "caution that is required is in proportion to the magnitude and the apparent imminence of the risk." Cooley5 states that the "care and vigilance" required "may vary according to the danger involved in the want of diligence.” These expressions may be considered as axiomatic. The exercise of vigilance in proportion to the risk of injury is involved in the very idea of diligence.

In 1893 an incident which was brought to An Incident of the the notice of the tribunal of arbitration was "Alabama's" Escape. revived by a discussion in the House of Commons. On March 17 in that year Sir Henry James, while speaking in support of an appropriation to provide the law officers of the Crown with a permanent office in London, referred to the escape of the Alabama, which, he said, was due to the fact that one of the law officers to whom the papers in the case were sent was at the time "reposing on the banks of the river Wye." According to the statement of Sir Henry James, this law officer "dispatched his opinion to London" "wrapped in a brown paper parcel." This parcel "was followed by some enterprising persons connected with the Confederate States, and before the papers reached London their contents were known to the agents of the Southern States," and "before the advice contained in the papers could be acted upon," the Alabama, "half equipped, had left the Mersey." In a letter sub

1 Sec. 48.

2 Sec. 47.

3 Sec. 53.

4 Law of Torts, 353, 372.

5 Torts, 2d ed. 752.

6 Hansard, 4th series, X. 427.

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 month. "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

I 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? I 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