MODUS VIVE]S^DI OF 1891 AND ARBTTRATIOlSr. 327 



The objection you made to this clause is thus stated by you: 



Her Majesty's (iovernment have no desire to exclude from the consideration of the 

 arbitrators any claim of compensation in relation to the B'^hring Sea fisheries which 

 the United States Government may believe themselves entitled to prefer consistently 

 with the recognized principles of international law. But they are of opinion that it 

 is inexpedient, in a case involving such important issues and presenting such novel 

 features, to prejudge, as it were, tlie question of liability by declaring thatcompen- 

 sa'tion shall be awarded on a hypothetical state of facts. Her Majesty's Government 

 consider that any legal liability arising out of the facts as proved and established at 

 the arbitration should be as much a question for argument and decision as the facts 

 tliemselves, aud, in order that this should be made quite clear, and that both Gov- 

 ernments should be placed, in that respect, on the same footing, etc. 



The President was not prepared to anticipate this objection, in view 

 of the fact that Lord Salisbury, in his note of February 21 last, had 

 asked a specific submission to the arbitrators of the British claim for 

 seizures made in the Behriiig Sea. His language, which was quoted in 

 uiy note of June 25, was as follows : 



There is one omission in these questions which I have no doubt the Government of 

 the President will be very glad to repair, aud that is the reference to the arbitrator of 

 the question, what damages are due to the persons who have been injured, in case it 

 shall be determined by him that the action of the United States in seizing British 

 A'cssels has been without warrant in international law. 



This could only be understood as a suggestion that the claims of the 

 respective Governments should be stated and given a specific reference. 

 And so, in the seventh clause proposed, the claim of Great Britain for 

 seizures made is defined and referred to in terms so correspondent to 

 the request of Lord Salisbury that it can not be supposed objection 

 would have been made to it if it had stood alone. But a particular 

 statement of the British claim for conq>ensation certainly made proper 

 and even necessary a like statement of the claims of the United States, 

 and the President is not able to see that the reference proposed was in 

 any respect unequal. If it should be found by the arbitrators that the 

 United States had, without right, seized British vessels in the Behring 

 Sea, the arbitrators were authorized to give compensation; and if, on 

 the other hand, these and other British vessels were found to have 

 visited that sea and to have killed seals therein in violation of the rights 

 of the United States and to the injury of its property interests, the 

 arbitrators were authorized to give compensation. One is not more 

 subject to the objection that it presents a hypothetical state of facts 

 than the other, and both submit the question of the lawfulness or un- 

 lawfulness of the acts complained of. 



The President believes that Her Majesty's Government may justly be 

 held responsible, under the attendant circumstances, for injuries done 

 to the jurisdictional or x)roperty rights of the United States by the seal- 

 ing vessels flying the British flag, at least since the date when the right 

 of these vessels to invade the Behring Sea and to pursue therein the 

 business of pelagic sealing was made the subject of diplomatic inter- 

 vention by Lord Salisbury. In his oi>inion justice requires that Her 

 Majesty's Government should respond for the injuries done by those 

 vessels, if their acts are found to have been wrongful, as fully as if each 

 had borne a commission from that Government to do the acts com- 

 plained of. The presence of the master or even of a third person, under 

 (;ircumstances calculated and intended to give encouragement, creates 

 a liability for tresi')ass at the common law, and much more if his pres- 

 ence is accompanied with declarations of right, protests against the 

 defense which the owner is endeavoring to make, and a declared pur- 

 pose to aid the trespassers if they are resisted. The justice of this rule 



