330 DIPLOMATIC CORRESPONDENCE. 



Sir Julian Fauncefotc to Mr. Wharton. 



[Private and iiuolliciul.] 



British LECrATioN, 

 Neicport, B. J., August 26, 1891. 



Dear Mr. Wharton: Iu my reply to your official note of tbe 22d 

 histant I stated that I hoped to be able to send au answer to yonr note 

 of tlie 23d ultimo in a few days. 



Before doiii,u' so, however, I am anxions to explain to you privately 

 and unofficially by letter, as I would do verbally were I in Washington, 

 the objection which my Government entertain to the latest form of clause 

 relating- to compensation which has been proposed by the President for 

 adoi^tion as article 7 in the Behring Sea arbitration agreement. Such a 

 private and unofficial exchange of views at this point of the negotiations 

 may abridge the official correspondence and facilitate a solution of the 

 present dilficulty, on the basis of a suggestion which you made when 

 we discussed the questions informally at Washington. 



My Government are unable to accept the form of clause i)roposed by 

 the President because it appears to them, taken in connection with 

 your note of the 23d ultimo, to imply an admission on their part of a 

 doctrine respecting the liability of Governments for the acts of their 

 nationals or others persons sailing under their flag on the high seas 

 which is not warranted by international law and to which they can not 

 subscribe. 



I need hardly say that the discussion of such a point (which, after 

 all, may never arise) must prolong the negotiation indefinitely. More- 

 over, it seems premature to enter into such a discussion before the other 

 questions to be submitted to the Arbitrators have been determined and 

 all the facts on which any liability can arise have been ascertained. 



Your suggestion, to which I luive referred, was to leave out altogether 

 the questicin of damages from the arbitration agreement, and you may 

 remember that at the time I did not encourage the idea, not apprehending 

 that the clause would give rise to such protracted discussion, and being, 

 moreover, anxious that the settlement to be arrived at should embrace 

 and finally dispose of every point in controversy. 



There is a middle course, however, which appears to me to commend 

 itself, from every point of view, as a practical and logical solution of 

 the present difficulty. It is to omit the seventh clause, as to compen- 

 sation, and to insert in its place a clause referring to the Arbitrators 

 any question of fact which either Government may put to them with 

 reference to the claims for conqiensation it believes itself to possess. 

 The application of the facts to international law might be a matter for 

 negotiation after they are determined, and, if the two Governments 

 agree, might be referred, in whole or in part, to the arbitrators. The 

 clause might be worded as follows : 



Clause 7. Either of the two Goveruments may snhmit to tlie Arbitrators any ques- 

 tion of fact which it may wish to ptit before them in reference to the ctainis for com- 

 pensation whic^h it believes itself or its Tiationals to possess a<>ainst the other. 



TIic (piestion whether or not, and to wliat extent, those facts, as deterniined by 

 the Arbitrators and taken in connection with their decision npon the other qnestiona 

 fin))niitted to thwn, render snch (daims valid according to the principles of interna- 

 tional law shall be a matter of snbseqnent negotiations, and may, if the two powers 

 agree, be referred, in whole or in i>art, to the Arbitrators. 



I do not, of course, propose the above wording as definite. It should 

 be 0])en to amendment on eitlua' side. But if, after submitting it to the 

 President, you should be able to inform nie i)rivately that such a clause, 



