MODUS VIVENDI OF 1891 AND ARBITRATION. 337 



the acts of their nationals or other persons sailing- nnder their flag- on 

 the high seas, for which there is no wariant in international law." The 

 proposition was expressly framed so as to snbniit to the Arbitrators the 

 qnestion of the liability of each Government for specihed acts complained 

 of by the other, and its language no more implies an admission of liabil- 

 ity on the part of one Government than on the part of the other. It is 

 precisely because the two Governinents can not agree as to the qnestion 

 of liability that arbitration becomes necessary. 



The fiicts npon which the respective claims for comi^ensation rest are 

 not seriously in dispute, to wit, the seizure of vessels and the killing of 

 seals in Beliring Sea, and it would probably not require the aid of arbi- 

 trators for their ascertainment. But it is the more important and difti- 

 cult question of liability respecting- which the two Governments lind it 

 necessary to invoke the interposition of impartial arbitration. It was 

 not the intention of this Government to require of Great Britain any 

 admission of liability for the acts complained of, but it has felt that, if 

 the Arbitration was to result in a full settlement of the difterences be- 

 tween the two Governments, the qnestion of respective liability for these 

 acts should go to the Arbitrators for decision. 



In the informal conferences which have taken place between us since 

 the date of my note of July 25, you will remember that I have solicited 

 from you any suggestions in support of the objection that the moditied 

 clause assumes a liability on the part of your Government, having iu 

 view on my part an amendment of the phraseology to overcome the ob- 

 jection ; and I have to express disappointment that no such suggestions 

 were found iu your note of the 17th instant. It was for this reason and 

 in the hope that the clause might be made acceptable to your Govern- 

 ment that after the receipt of your note I submitted to ycwi informally 

 the following- amendment to be added to the seventh clause, as proposed 

 in my note of July 23 : 



The above provision for tlie submission to the Arbitrators by the United States of 

 claims for couijiensation by reason of the Icilling of seals by persons acting under the 

 lirotectiou of the British flag shall not be considered as implying any admission on 

 the part of the Government of Great Britain of its liability for the acts of its na- 

 tionals or other persons sailing under its flag. 



We have now been informed by you that your Government is un- 

 willing to accept the claase even with this addition by way of amend- 

 ment. 



When in your note of February 21 last you communicated the desire 

 of Lord Salisbury for a " reference to the Arbitrator of the question of 

 damages due to persons who have been injured, in case it should be de- 

 termined by him that the action of the United States in seizing British 

 vessels has been without warrant in international law," the President 

 cheerfully accepted the suggestion, and, coupling with it tlie claim of 

 damages preferred by tlie United States, proposed to submit both ques- 

 tions, as presented by the respective Governments, to arbitration, thus 

 making a complete and final settlement of all difterences between the 

 two Governments connected with the seal fisheries. To withdraw tliis 

 comprehensive submission of specified claims and substitute for it a 

 mere reference to the Arbitrator of questions of fact touching- the same 

 claims which are not to be held binding- upon either Government, as 

 you propose, is, in the opinion of the President, an imperfect, and, he 

 fears, may prove an ineffectual, disposition of the question of claims. 

 But, having- failed in his eftbrts by modification and amendment to se- 

 cure the acceptance by your Government of the clause for a full adjust- 

 ment of these claims, and heartily particix^ating in the desire expressed 



43 



