Upon these facts it appears to me impossible to say that in respect of this vessel there was not an absence of "due diligence" on the part of the British authorities. The delay which occurred in the furnishing of the report of the law-officers is no doubt to be attributed to the illness of the Queen's advocate, referred to in the case of the United Statesan illness unhappily affecting his mental faculties, and which necessitated his entire withdrawal from public life. As senior in standing of the law-officers, the papers would be sent to him in the first instance.

From a letter from Mr. Adams to Mr. Seward, of the 1st of August, 1862, it appears that, in the interview had by the former with Lord Russell, on the previous day, Lord Russell had explained to him that a delay in determining on the course to be taken with respect to the Alabama had most unexpectedly been caused by the sudden development of a malady of the Queen's advocate, Sir John Harding, totally incapacitating him for the transaction of business, and that this had made it necessary to call in other parties, whose opinion had been at last given for the detention of the gun-boat. Upon this, it is observed in the argument of the United States, that no opinion of the law-officers was signed by the Queen's advocate after the 30th of June, whence, it is said, the United States infer that that officer" was unable to attend to his duties as early as that date," and, it is added with an ungenerous sneer, "they infer that it was not necessary to call in new parties, but to call upon the old." The unworthy insinuation here meant to be conveyed is that Lord Russell stated that which was untrue—an insinuation, which will be treated as it deserves by every one who knows him. It is obvious that Mr. Adams must, in this particular, have misunderstood his lordship. The accompanying explanation of the circumstances attending the delay in the delivery of the opinion of the law-officers on the occasion in question has been handed to the tribunal by Sir Roundell Palmer, and is beyond doubt the true explanation:

Sir John Harding was ill from the latter part of June, 1862, and did not, after that time, attend to government business. It was not, however, known, till some weeks afterward, that he was unlikely to recover; nor did the disorder undergo, till the end of July, such a development as to make the government aware that the case was one of permanent mental alienation.

Although, when a law-officer was ill, he would not be troubled with ordinary business, it was quite consistent with probability and experience that, in a case of more than usual importance, it would be desired, if possible, to obtain the benefit of his opinion. Under such circumstances, the papers would naturally be sent to his private house; and if this was done, and if he was unable to attend to them, some delay would necessarily take place before the impossibility of his attending to them was known. Lord Russell told Mr. Adams (31st July, 1862,) that some delay had, in fact, occurred with respect to the Alabama, in consequence of Sir John Harding's illness. He could not have made the statement, if the fact were not really so; because, whatever the fact was, it must have been, at the time, known to him. The very circumstance, that Sir J. Harding had not already advised upon the case in its earlier stage, might be a reason why it should be wished to obtain his opinion.

Sir J. Harding and his wife are both (some years since) dead; so are Sir W. Atherton (the then attorney-general) and his wife; no information, therefore, as to the circumstances which may have caused delay, with respect to the delivery at their private houses, or the transmission and consideration of any papers on this subject, can now be obtained from them.

The then solicitor-general was Sir R. Palmer, who is able to state positively that the first time he saw or heard of the papers sent to the law-officers (i. e., all three lawofficers) on the 23d and 25th or 26th of July, was on the evening of Monday the 28th of July, when he was summoned by the attorney-general, Sir W. Atherton, to consider them in consultation, and when the advice to be given to the government was agreed upon. Sir R. Palmer thinks it his duty to add, that no government ever had a more diligent, conscientious, and laborious servant than Sir W. Atherton; and that it is in

1 British Appendix, vol. i, p. 201.

United States Documents, vol. vi, p. 414.

the last degree unlikely that he would have been guilty of any negligence or unnecessary delay in the consideration of papers of such importance.

As I think that a government, in the habit, according to its constitutional practice, of consulting its legal advisers before taking action on matters of importance, would be entitled to reasonable time for doing so on such an occasion as this, and would not be liable for delay oecasioned by an unforeseen accident, I should not have been prepared to say, had the delay in the report of the law-officers thus arising been the sole cause of the delay in ordering the seizure of this vessel, that a delay arising from such an accident could properly be attributed to a want of "due diligence" in the government. The want of "due diligence,” on which my judgment in respect of the Alabama rests, is to be found further back. I entirely agree with Sir Robert Collier that it was the duty of the collector of customs at Liverpool, as early as the 22d of July, to detain this vessel. When for his better guidance and protection the collector sought the directions of his superiors-for which I can scarcely blame him, although the case appeared clear enough-it became, in my opinion, the duty of the commissioners of customs at once to direct the seizure to be made. Misled by advice which they ought to have rejected as palpably erroneous, they unfortunately refused to cause the vessel to be seized. The matter properly belonged to their department: it was competent to them to act independently of any other department of the state; and the case, as it seems to me, was too clear to require the opinion of the law-officers, although, after the decision of the commissioners, it might well be deemed proper on the part of the heads of the government to consult the law-officers before acting in opposition to it.

At the same time, I must not be understood as holding that a mere error in judgment amounts to negligence. Questions present themselves in the business of life so difficult of decision that the wisest and the ablest men are apt to err in respect of them. Humanum est errare. In such cases the question must always be one of degree. But here I cannot help thinking that the mistake was such as to carry with it legal responsibility as its consequence. I readily admit that, in a case of doubt, a public department may properly act on the advice of its constitutional advisers, and would not be liable to the imputation of negligence if that advice should turn out to be unsound. But here I think there was no room for doubt. My judgment is founded on the view that the course to be taken was plain and unmistakable, but unfortunately was not pursued; and that there was consequently an absence of the due diligence which ought to have been exercised.

The vessel having thus escaped through want of due diligence in that department of the government to which it specially appertained to seize her, the entire British government, and through them the British people, become, as it appears to me, by necessary consequence, involved in a common liability. But how far, considering the fact that, while the British government was desirous of doing its duty in respect of this vessel, the escape of it was, in the event, practically speaking, the result of an unfortunate and unforeseen accident, the tribunal should award to the United States damages to the full extent demanded, as though the result had arisen from negligence alone, is a question which may deserve serious consideration.

But it belongs rather to a different department of our labors, and I will reserve it till we enter thereupon.

After leaving Liv erpool.

escape.

But, I am sorry to say, the charge of want of diligence in respect of this vessel does not stop with the fact of her

On the morning of the 30th of July, a letter of the 29th, from Mr. Squarey's firm, informed the commissioners of customs that the vessel had come out of dock the night before, and had steamed down the river between ten and eleven that morning, as the writers had reason to believe, on her way to Queenstown.1 At that time, indeed, the commissioners of customs were under the belief that there were not sufficient grounds for detaining the vessel. It was, therefore, not to be expected, that on being informed she had left the Mersey and gone to Queenstown, they should take any steps to seize her at the latter place. But on the preceding day, the 29th, the opinion of the law-officers had been given that the vessel should be seized. Had that opinion been at once communicated to the customs, as the emergency of the case required, and the commissioners had themselves immediately telegraphed to the collector at Liverpool, as it would have been their duty to do, desiring him to ascertain where the ship was, and if possible to follow and seize her, there would still have been an opportunity of stopping her; for it appears that she first proceeded to Moelfra Bay, on the Welsh coast, a place about fifty miles from Liverpool, and remained cruising off the coast. afternoon of the 30th the tug Hercules left the Mersey, with thirty or forty men, who were to form part of the ship's crew, and found her in Moelfra Bay, where the two vessels lay alongside one another till midnight, and the war-steamer remained till 3 in the morning of the 31st. On the morning of the 30th, prior to the Hercules leaving the river, the consul called in person upon the collector and informed him that the tug was then in port, having returned from the Alabama the evening before; that she reported that the Alabama was cruising off Point Lynas, and that she (the tug) was then taking on board men and equipments to "convey down to the gun-boat."

The collector sent the surveyor to the tug, and he reported that he found a considerable number of persons on deck, "some of whom admitted that they were a portion of the crew and were going to join the gunboat." He also informed the collector that it was said she had cruised off Point Lynas the night before.

3

It is obvious that if a telegraphic communication had been sent to the collector at Liverpool, as, looking to the urgency of the case, it should have been, he might, by following the Hercules, have found the steamer in Moelfra Bay; and though in these waters, as being beyond his jurisdiction, he would have had no authority to seize her, he might have called on the collector of customs at Beaumaris, a place eight miles off, within whose jurisdiction she was, to take the necessary steps for doing so. Knowing that she was off that part of the Welsh coast, he might also have telegraphed from Liverpool, before leaving to follow the Hercules, to the collector at Beaumaris to look out for the vessel, and, if possible,

to seize her.

Unfortunately, the report of the law-officers, though sent in on the 29th, was not communicated to the commissioners of customs till the afternoon of the 31st, by which time the vessel was beyond the reach of British jurisdiction. It followed the ordinary routine of official communication-was sent in to the foreign office, thence to the treasury, and thence to the department of the customs.

It seems to me that the United States Government have also reason to complain of the inactivity of the collector at this conjuncture in another

British Appendix, vol. i, p. 203.
Ibid., p. 205.

Ibid., p. 201.

4 Ibid., p. 205.

particular. When, in addition to the evidence which had passed through his hands, the collector found that the vessel, having gone out ostensibly on a trial trip, did not return, but was lying off the Welsh coast, and that, instead of having shipped her crew at Liverpool, she was having them brought off to her by the Hercules, all doubt as to the real character and destination of the ship should have been at an end; and as he might fairly presume that the men had a knowledge of the service on which they were entering, he ought not to have allowed the Hercules to leave, (unless for the purpose of finding and seizing the war-steamer,) seeing that, under the 6th section of the foreign-enlistment act, he had power to seize the tug, as being about to take off to the steamer persons who had unlawfully enlisted as part of her crew.

I must say I think the complaint of the United States of a want of official activity at such a conjuncture by no means without foundation. There is little more to be said on the subject of the Alabama. She left England without her guns or munitions of war of any Arming off Terceira. kind. She received her armament, as we now know, off Terceira, it having been conveyed to her in two vessels called the Bahama and Agrippina, but without any knowledge whatever on the part of the authorities that those vessels were leaving Liverpool for the purpose. What is stated in the British counter case on this head appears to me strictly accurate:

The Alabama sailed from England wholly unarmed, and with a crew hired to work the ship, and not enlisted for the confederate service. She received her armament at a distance of more than 1,000 miles from England, and was armed for war, not within the Queen's dominions, but either in Portuguese waters or on the high seas. The guus and ammunition, which were put on board of her off Terceira, had been procured and exported from England in an ordinary merchant-steamer, which loaded them as cargo and sailed with a regular clearance for Nassau. The clearance and departure of this steamer presented, so far as Her Majesty's government is aware, no circumstance distinguishing her from ordinary blockade-runners. No information was ever given or representation made to the government as to this ship or her cargo before she left British waters; nor does it appear that the errand on which she was employed was known to or suspected by the officials of the United States. But, even had a suspicion existed that her cargo was exported with the intention that it should be used, either in the Confederate States or elsewhere, in arming a vessel which had been unlawfully fitted in England for warlike employment, this would not have made it the duty of the officers of customs to detain her, or have empowered them to do so. Such a transaction is not a breach of English law; nor is it one which the British government was under any obligation to prevent. Whether the cargo was sent from the same port as the ship, or from a different port, and by the same or different persons, is manifestly immaterial for this purpose. The distinction is plainly not such as to create in the one case a duty which would not arise in the other.

The armament was, however, prepared in England, and it was part of the same scheme that the vessel having been "equipped," that is to say prepared to receive her armament in England, should have her armament and crew sent out and put on board out of the Queen's dominions, for the purpose of immediate warfare. It is fairly open to contention that under such circumstances the whole should be regarded as one armed hostile expedition issuing from a British port, or, at all events, that the ulterior purpose of arming, though out of British jurisdiction. gives to such an equipment of the vessel within the jurisdiction the character of an equipment with intent to carry on war.

On the whole, I concur with the rest of the tribunal in thinking that in respect of this vessel the liability of Great Britain, in respect of want of due diligence, is established by the facts.

It would be unnecessary to pursue the history of the Alabama any further, were it not that, in respect of her after-proceedings, imputa

British Counter Case, p. 87.

tions of insincere neutrality are cast upon British authorities. As to these it becomes necessary to say a word.

The first port she put into after leaving Liverpool was at Martinique. The Agrippina, with a cargo of coal specially destined for At Martinique. the Alabama, was there by arrangement awaiting her ar

rival. What further passed is thus stated in the argument of the United States:2

The Agrippina left port upon the order of Captain Semmes to get under way forthwith and proceed to a new place of rendezvous, as "it would not do for him to think of coaling in Martinique under the circumstances." Martinique was under the jurisdiction of the French government and not under that of Her Majesty.

The part of this passage printed in italics is taken from the journal of Captain Semmes, set out in the sixth volume of the United States Appendix, p. 491.

The effect of this statement is to convey the impression that Captain Semmes found it would not do for him to coal at Martinique on account of the strictness of the French authorities, as compared with the lax neutrality of ports within Her Majesty's jurisdiction. I deeply and sincerely regret to find myself bound to denounce this representation as altogether disingenuous. It was the fear of the United States cruisers, not apprehension of French authorities, which led Captain Semmes to seek a safer place for coaling. His journal shall speak for itself:

After describing his cruise and captures until October 30, he continues, (p. 492:) "The engineer having now reported to me that we had no more than about four days of fuel on board, I resolved to withdraw from the American coast, run down into the West Indies to meet my coal-ship, and renew my supply. Being uncertain, in the commencement of my career, as to the reception I should meet with in neutral ports, and fearing that I might have difficulty in procuring coal in the market, I had arranged with my ever-attentive co-laborer, Captain Bullock, when we parted off Terceira, to have a supply-ship sent out to me from time to time, as I should indicate to him in the rendezvous. The island of Martinique was to be the first rendezvous, and it was thither accordingly that we were now bound. This resolution was taken on the 30th of October."

After describing several other captures, and his arrival at Martinique, he continues, (p. 514 :)

"I found here at her anchors, as I had expected, my coal-ship the Agrippina. She had been lying here eight days. Her master, an old Scotchman, who, like most old sailors, was fond of his grog, had been quite indiscreet, as I soon learned, in talking about his ship and her movements. Instead of pretending to have come in for water or repairs, or to hunt a market, or for something of the kind, he had frequently, when half seas over,' in the coffee-houses on shore, boasted of his connection with the Alabama, and told his brother tars that that ship might be daily looked for. Eight days were a sufficient space of time for these conversations to be repeated in the neighboring islands; and as I knew that the enemy had several cruisers in the West Indies, I was only surprised that some one of them had not looked in upon the Agrippina before. It would not do for me to think of coaling in Martinique, under the circumstances, and so I ordered my coal-ship to get under way forthwith, and proceed to a new rendezvous-a small island on the Spanish main, where, in due time, we will rejoin her. I had the satisfaction of seeing her get a good offing before nightfall, and knew that she was safe."

The foregoing extract speaks for itself. What makes the matter still worse is that, at the time this passage in the United States argument was penned, a letter from the British consul at Martinique to Earl Russell had been published in the British Appendix, from which it appears that the consul actually remonstrated with the master of the Agrippina, and called the attention of the French governor to the transaction, as an improper one, on which the governor declared his intention of allowing the same facilities to the Alabama as he had previously af forded to the Sumter.