States,1 1said the time had not arrived; that the British people were too much irritated by the rejection of the treaty and by Mr. Sumner's speech," and that the American people "were too much carried away with the idea of paying off the cost of the war with the amount of damages that Mr. Sumner's speech had made out against Great Britain." Mr. Fish said "that when the excitement subsided the appointment as special envoy of some man of high rank, authorized to express some kind word of regret, would pave the way for a settlement; and he outlined to Sir John the exact scheme for settlement which was adopted a year and a half later."2

Annual Message of 1870.

On the 25th of September 1869 Mr. Fish addressed to Mr. Motley an extended instruction, in which he fully set forth the injuries which the United States felt they had sustained. This instruction Mr. Motley was told that he was at liberty to read to Lord Clarendon, but in a separate and confidential instruction of the same day he was informed that he was to consider this permission as a command. This step was followed by others. The British minister at Washington, Mr. Thornton, under the instructions of his government, conferred with Mr. Fish at the Department of State, and efforts were made to find a common ground of negotiation. This end, however, was not easily attained. More than a year passed, and the two governments were apparently still far apart in their views. In his annual message to Congress of December 5, 1870, President Grant referred, with an expression of regret, to the fact that no conclusion had been reached. The cabinet of London, he said, so far as its views had been expressed, did not appear to be willing to concede that Her Majesty's Government was guilty of any negligence, or did or permitted any act during the war by which the United States had a just cause of complaint. "Our firm and unalterable convictions,” said President Grant, “are directly the reverse;" and he then made a recommendation

1 Mr. Fish, in a letter to Dr. Lieber, May 30, 1871, said: "The sending a special mission-some person of high official rank-was suggested by me in May 1869, and was the subject of close confidential conversation and correspondence with influential persons in England as early as the 1st of June 1869. The correspondence was continued in this mode until the fruit ripened."

2 Mr. Fish and the Alabama Claims, 45-46.

3 For. Rel. 1873, part 3, p. 336.

+ MSS. Dept. of State.

which could not fail to be impressive of the gravity of the situation. "I therefore recommend to Congress," said the President, "to authorize the appointment of a commission to take proof of the amounts, and the ownership of these several claims, on notice to the representative of Her Majesty at Washington, and that authority be given for the settlement of these claims. by the United States, so that the government shall have the ownership of the private claims, as well as the responsible control of all the demands against Great Britain. It can not be necessary to add that, whenever Her Majesty's Government shall entertain a desire for a full and friendly adjustment of these claims, the United States will enter upon their consideration with an earnest desire for a conclusion consistent with the honor and dignity of both nations."

Sir John Rose's Second Visit.

On the 9th of January 1871 Sir John Rose again arrived in Washington on a confidential mission. On the evening of the same day he dined with Mr. Fish, Mr. Bancroft Davis, then Assistant Secretary of State, being the only other guest. After dinner a conference was held, which lasted till between two and three o'clock in the morning. Mr. Davis has preserved the following contemporaneous memorandum of it:1

"MEMORANDUM OF POINTS TAKEN IN A CONVERSATION BETWEEN SECRETARY FISH AND SIR JOHN ROSE AT MR. FISH'S HOUSE JANUARY 9, 1871.

"Sir John Rose stated that he had been requested by the British Government informally, unofficially, and personally, as one-half American, one-half English, enjoying the confidence of both governments, to ascertain what could be done for settling the pending questions between the two governments; and that he was authorized to say that, if it would be acceptable to the Government of the United States to refer all those subjects to a joint commission framed something upon the model of the commission which made the treaty of Ghent, he could say that the British Government was prepared to send out such a commission on their part, composed of persons of the highest rank in the realm. He dwelt upon the importance of settling these questions now. * Mr. Fish replied that before agreeing to go into such a commission there should be a certainty of success-for failure would leave things much worse than they were before-and he asked whether, in going into a commission, the British Government would be prepared to admit a liability for what were known as the Alabama claims.

Mr. Fish and the Alabama Claims, 59.

"Sir John said that he would be wanting in frankness if he did not state that such a concession would not be made; that, in his own judgment, the Government of Great Britain would be found to be liable for the damage committed by the Alabama, and as to the other vessels it would be doubtful; that the government was prepared to agree to a submission to arbitration, either to continental jurists, or to a mixed court composed of English and American jurists or to any other tribunal that the two governments might agree upon; but that the feeling in England was such that the government would not be supported in Parliament in agreeing to admit the liability for the acts of the Alabama.

"Mr. Fish replied that with equal candor he must say that this government would not, in his judgment, be supported by the Senate or by the country in making a treaty which did not recognize that liability; that under our Constitution one third of the Senate and one Senator in addition could defeat a treaty; that most of the present Senators had voted against the Johnson-Clarendon treaty, and were committed as to the liability of England as to the Alabama; that the discussion made at that time had left a feeling among the people which would tend to prevent any change in the vote of the Senate; that the changes which were to be made in the Senate on the 4th of March would probably not make much change in this respect; that he thought that the nation might possibly be satisfied with a recognition of liability for the acts of the Alabama, and be reconciled to the submission of the liability as to the other vessels; and that therefore unless Great Britain could concede that point it would be useless to go into a commission.

"Sir John Rose endeavored at great length to combat these views, and urged in a forcible way his own conviction that, if the two nations once met in commission, the commissioners would not part without agreeing to a settlement. He also argued, quoting Mr. Lowe, that the people who furnished the money for and superintended the fitting out of the Alabama, who were Americans, were now in the full enjoyment of their rights as citizens of the United States, and that the question was a domestic one between this government and its citizens. "Mr. Fish replied that the British Government was estopped, by the recognition of the South as belligerents, from denying their character as public enemies. He repeated the necessity for a recognition of liability as to the Alabama as a prelimi nary. He said that he did not ask England to humiliate herself-to say that her laws were inefficient, or her government unfaithful to its duties; that it seemed to him that England might very well feel that, owing to the negligence or unfaithfulness of a local officer, this vessel had been allowed to escape against the directions of the government, and that thereby the government had become liable; and should couple this statement with an expression of regret for what had taken place to disturb the relations of the two countries,-that less

than this the United States ought not to be and would not be satisfied with.

"Some discussion was also had as to the manner in which the questions should be raised.

"Sir John Rose said that the British Government could not take the initiative in the question of the Alabama claims, and suggested that, in case the way for a settlement seemed clear, the British Government should propose a commission for the settlement of the San Juan boundary, the fisheries, and other Canadian questions, and that the United States should accede, provided the claims for the acts of the vessels should be also considered. Mr. Fish assented to this."

uary 11, 1871.

On the 11th of January Sir John Rose called Memorandum of Jan- at the Department of State and read to Mr. Davis, confidentially, a paper which he had prepared. After reading this paper, Sir John left it with Mr. Davis. It was returned by Mr. Fish on the following day, "with thanks, and with hopes." Owing to its importance, it is inserted here at length:

["Strictly confidential.-Mem.]

"The commissioners to treat on various questions of dif ference between the U. S. & G. B.:-to provide by l'rotocols, Treaties, or otherwise, means by which a full and final adjustment and satisfactory determination of the same may take place,' or some such words.

"The preamble of the English Com. to contain words of similar import to those which preceded the negotiations in 1814 as to the desire of H. M. to put an end to these differences-to lay,-upon a just and liberal basis which shall secure the rights and interests of both nations,—the foundation of lasting bonds of amity between them.

"Would not sending High Comrs. here be accepted as a friendly advance in reference to past events, and would not terms made in Washington through such a body be more likely to be acceptable than the same terms would be if arranged in England by ordinary diplomatic process!

"The commissioners by discussions and protocols would soon limit the points of difference. The idea is, not that the High Commissioners should adjudicate on the questions themselves, but arrange by Treaties, modes or machinery of doing so.

"The great difficulty would probably be as to the mode by which the question whether England was liable for the Alabama's depredations should be determined;-whether, if the Commissioners disagreed, the decision should be left to a friendly power to be chosen by the two governments;-or

1 Mr. Davis MS. Journal.

whether the opinions of a Body of eminent Jurists, including American, English and Foreign, might not be taken on the facts as they appear in the Diplomatic Correspondence? and be the guide as to the existence and measure of liability, which opinions should form the rule for the Mixed Commissioners, to be named and act judicially under the treaty.

"It is hardly conceivable that High Commissioners meeting in a pacific spirit, and selected specially with reference to their acceptability to each country, should not find some method of adjustment which would be satisfactory to both nations. They would, of course, be subject to daily instructions from their governments; and mutual concessions could be thought of to meet the various cases of difficulty as they arose.

"It is not probable that their negotiations would be very prolonged, as no questions of fact requiring evidence would arise; and would it not be possible to bring the negotiations to such a point as that the assent of the Senate to the results might be obtained before it adjourned?

"Is it not desirable, also, if these general views are thought favorably of, that they should be initiated before General Schenck leaves? The approaching fishing season may bring renewed controversy and rouse feelings which may obstruct pacific action in reference to the other more serious questions. It would seem difficult now to recede from the policy of exclusion,-at all events not unless a Conference on the subject had actually begun.

"Then the English Parliament (possibly an European Congress) will be in session about the time the new Minister arrives; and subjects of pressing exigency growing out of the policy and views of the governments in reference to the FrancoGerman war, the action of Russia on the Black Sea questionof Prussia on the Luxembourg Treaty,-the Army and Navy organization, will so force themselves on the attention of Parliament and the Government that, however earnest their desire might be to carry on immediate direct negotiations with General Schenck, much delay may unavoidably occur; and it is impossible to say what may take place before the Autumn, the period which we might naturally look to as that when diplo matic negotiations might make some progress.

"Supposing, then, that an attempt was made to have Sir Edward Thornton authorized by cable, now, to propose such a Commission with reference to all other subjects-omitting the

1 Gen. Robert C. Schenck. After Mr. Motley was asked to resign Mr. Frederick T. Frelinghuysen was nominated as minister to England. His nomination was promptly confirmed by the Senate, but for personal reasons he declined the post. (Mr. Fish to Mr. Frelinghuysen, July 21, 1870; Mr. Frelinghuysen to Mr. Fish, July 30, 1870. MSS. Dept. of State.) General Schenck was subsequently appointed. He was requested to delay his departure for London, with a view to his becoming a member of the joint commission. (For. Rel. 1871, p. 432.)