MODUS VIVENDI OF 1892. 357 



waters outside a 3-mile limit. This serious and ]>rotracted controversy, it 

 lias now been happily ayreed, shall be submitted to the determination 

 of a tribunal of arbitration, and the treaty only awaits the action of the 

 American Senate. 



The judgment of the arT)itration tribunal can not, however, be reached 

 ami stated in time to control the conduct of the respective Govern- 

 ments and of their citizens during the sealing season of 1892; and the 

 urgent question now is, What does good faith, to say nothing of inter- 

 national comity, require of the parties to the Arbitration? If the con- 

 tention of this Government is sustained by the Arbitrators, then any 

 killing of seals by the Canadian sealers during this season in these 

 waters is an injury to this Government in its jurisdiction and property. 

 The injury is not measured by the skins taken, but aftects the perma- 

 nent value of our property. Was it ever heard before that one party 

 to such a controversy, whether a nation or an individual, conld appro- 

 priate the whole or any part of the income and profits, much less the 

 body of the contested property, pending the litigation, without account- 

 ability'? Usually a court of chancery would jilace a receiver or trustee 

 in charge and hold the income of the property for the benefit of the 

 l)revailing party. 



You say that Lord Salisbury, rejecting the illustration used by Mr. 

 Blaine, '' suggests that the case is more like one of arbitration resjject- 

 ing title to a meadow. While the arbitration is going on we cut the 

 grass; and quite rightly, for the grass will be reproduced next year and 

 so will the seals." He can hardly mean by this illustration tliat, being 

 in contention with a neighbor regarding the title to a meadow, he could, 

 by any precedent in tlie equity courts or by any standard of common 

 honesty, be iustified in pocketing the whole or any part of the gains of 

 a harvest without accountability to the adverse claimant whose exclu- 

 sive title was afterwards established. It is no answer for the trespasser 

 to say that tlie true owner will have an undiminished harvest next yea.r. 

 Last year's harv^est was his also. If by the use of the iilural pronoun 

 his lordship means that the harvest of the contested meadow is to be 

 divided between the litigants, I beg to remind hiin that the title of the 

 LTnited States to the Pribilof Islands has not yet been contested, and 

 that our Hag does not float over any sealing vessel. The illustration is 

 inapt in the further particular that the seals not taken this year may 

 be taken next, while the grass must be harvested or lost. 



This Government has already been advised in the course of this cor- 

 respondence that Great Britain repudiates all obligations to indemnify 

 the United States for any invasion of its jurisdiction or any injury done 

 to its sealing property by the Canadian sealers. The attempt to make 

 a damage clause one of the articles of the arbitration agreement failed, 

 because Her Majesty's Government would not consent that the ques- 

 tion of its liability to indemnify the United States for the injuries done 

 by the Canadian sealers should be submitted. Two extracts from the 

 correspondence will sufficiently recall the attitude of the respective 

 Governments : 



In my note of July 23, I said : 



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

 siljle, under the attendant circumstances, for injuries done to the jurisdictional or 

 property rights of the United States by the sealing vessels flying the British flag, at 

 least since the date when the right of these vessels to invade the Beliring Sea and to 

 pursue therein the business of pelagic sealing was made the subject of diplomatic in- 

 tervention by Lord Salisbury. In his o]nnion justice requires that Her Majesty's 

 Government should respond ibi- tlie injuries done by those vessels, if their acts are 

 found to have been wrongful, as fully as if each had borne a commission from the 



