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.'

1Papers 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.

Proposal as to Civil
War Claims.

In the formal correspondence that preceded the meeting of the Joint High Commission, by 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.

Mr. Fish appears to have contemplated the Analysis of Claims. possibility of a settlement of the claims now in question by the Joint High Commission, directly and conclusively, as between the two governments. In his acceptance of Sir Edward Thornton's proposal he suggested that the high commissioners should "consider only such claims" as might be "presented by the governments of the respective claimants at an early day, to be agreed upon by the commissioners," and in the confidential memorandum with which the American high commissioners were furnished there was an exposition of the principles on which the claims should be examined. In this memorandum the claims of British subjects were discussed under three heads

1. The injuries inflicted by the Confederate authorities or by private citizens of the Confederacy.

In respect of this class of claims the general proposition was laid down "that no government is responsible for injuries done to the inhabitants of the country, whether citizens or foreigners, by rebels or by alien enemies exercising in the particular locality or for the time being superior force against such government."3

2. Claims growing out of captures by United States cruisers. On the subject of these claims a passage from Lord Mansfield's memoir on the Silesian loan was cited, in which the ground is maintained that "all a foreigner can desire is that justice should be impartially administered to him, as it is to the subjects of that prince in whose courts the matter is tried." 3. Claims for arbitrary arrests, compulsory military service, and other alleged violations of the personal rights of British subjects.

This subject was, said the memorandum, treated with such general candor and fairness by Prof. Mountague Bernard, in

1 For. Rel. 1873, part 3, 268.

2 For. Rel. 1873, part 3, 362.

3On this proposition the following citations were made: Lord Stanley, June 17, 1870, Hansard, 3d series, III. 1306; Rutherford's Institutes, 509; Vattel, Book 2, ch. 6, sec. 73; Phillimore Int. Law, I. sec. 218; Calvo, Derecho Internacional, I. 387; Torres Caicedo, Union Latino-Americano, 343, 348 (dispatches of Prince Schwartzenberg to Baron Hotter, April 14, 1850, and Count Nesselrode to Baron Brunnow, May 2, 1850); Mauran v. Insurance Co., 6 Wallace, 14; Opinions of At. Gen. XII. 21; Mr. Marcy to the Count de Sartiges, Sen. Ex. Doc. 9, 35 Cong. 1 sess.

Chapter XVI. of his Neutrality of Great Britain during the American Civil War, and by Mr. Abbott, in his appendix to the report of the royal commission on naturalization and allegiance, that it seemed unnecessary to do more than refer to those publications. Attention was, however, called "to some of the authorities which established the liability of persons domiciled for commercial purposes in a belligerent region to be treated as indistinguished from the active enemies in the midst of whom they are found.”1

The diplomatic correspondence in regard to these various classes of claims during the progress of the civil war may be consulted chiefly in the series entitled "Diplomatic Correspondence," published by the Government of the United States, beginning with the year 1861. In the publication for the year 18642 there is a reprint of a British blue book relating to the "Claims of British subjects against the United States Government from the commencement of the civil war to the 30th of March 1864." In regard to the contents of this blue book, the confidential memorandum given to the American high commissioners made the following observations:

"An analysis of that document shows the following results: "Three hundred and twenty-one cases of the 450 therein enumerated have been disposed of.

"Of these, 43 were cases in which the British Government refused to interfere, on the advice of the law officers of the Crown.

"One hundred and sixty-seven cases have been condemned by the prize courts of the United States. With the exception of one case, that of the Springbok, the Department of State is not aware of a disposition on the part of the British Government to dissent to any final adjudication of the Supreme Court of the United States in a prize case. The Supreme Court has in several cases reversed condemnations made by the inferior tribunals of prizes, in some of which Congress has made appropriations for the indemnification of the owners of the property captured. .

"In most of the cases where it is stated that vessels have been condemned, but that appeals are pending, the condemnations by the courts below have been sustained.

Kent's Comm. I. *75; Wildman, Int. Law, II. 49, 78; Phillimore, Int. Law, III. 128; Calvo, Derecho Int. I. 292; The Pizarro, 2 Wheat. 246; Laurent's Case, report of commission under treaty of 1853, 120; Earl Granville to Lord Lyons, January 11, 1871, Blue Book No. 4 for 1871, Franco-German War.

2
* Part 1, 736.

"In 63 cases it appears that property taken by the United States has been restored, and that persons imprisoned, or said to have been illegally enlisted, have been released."1

Proceedings of the Joint High Commission.

Such was the apparent state of the British claims at the time of the meeting of the Joint High Commission. The proceedings of that body on the subject are sufficiently detailed in the protocols of its conferences, as follows:

"At the conference on the 4th of March it was agreed to consider the subjects referred to the Joint High Commission by the respective governments in the order in which they appeared in the correspondence between Sir Edward Thornton and Mr. Fish, and to defer the consideration of the adjustment of all other claims, both of British.subjests and citizens of the United States, arising out of acts committed during the recent civil war in this country,' as described by Sir Edward Thornton in his letter of February 1, until the subjects referred to in the previous letters should have been disposed of.

"The American commissioners said that Claims for Slaves. they supposed that they were right in their opinion that British laws prohibit British subjects from owning slaves; they therefore inquired whether any claims for slaves, or for alleged property or interest in slaves. can or will be presented by the British Government, or in behalf of any British subject, under the treaty now being negotiated, if there be in the treaty no express words excluding such claims.

"The British commissioners replied that by the law of England British subjects had long been prohibited from purchasing or dealing in slaves, not only within the dominions of the British Crown but in any foreign country; and that they had no hesitation in saying that no claim on behalf of any British subject, for slaves or for any property or interest in slaves, would be presented by the British Government.

Fenian Raids.

"Referring to the paragraph in Sir Edward Thornton's letter of January 26, relating to the mode of settling the different questions which have arisen out of the Fisheries, as well as all those which affect the relations of the United States towards Her Majesty's Possessions in North America,' the British commissioners proposed that the Joint High Commission should consider the claims for injuries which the people of Canada had suffered from what were known as the Fenian raids.

"The American commissioners objected to this, and it was agreed that the subject might be brought up again by the British commissioners in connection with the subject referred to by Sir Edward Thornton in his letter of February 1.

1 For. Rel. 1873, part 3, 367.