358 DIPLOMATIC CORRESPONDENCE. 



Govcrnincnt to do the act complained of. Tlie presence of the master, or even of 

 a third person, under circumstauoes caleahited and intended to give enconragemeut, 

 creates a liability for trespass at the connjion law, and nmch more if his presence is 

 accompanied with declarations of right, protests against tlie defense, winch the owner 

 is endeavoring to make, and a derdared purpose to aid tfie tr(!sj)assers if they are re- 

 sisted. The Justice of this rule is so ap))areut that it is not seen how in the less tech- 

 nical tribunal of an international arbitration it could be held to be inapplicable. 



The United States might well insist that Her Majest^y's Government should admit 

 responsibility for the acts of the Canadian sealers, which it has so directly encour- 

 aged and promoted, ]n'ecisely as in the proposal the United States admit responsibil- 

 ity for the acts of its revenue vessels. But, with a view to remove Avhat seems to be 

 the last point of diiii'rence in a discussion which has been very much protracted, the 

 President is willing to modify his propositi and directs me to offer tlie following: 



"The Government of Great Britain having presented the claims of its subjects for 

 compensation for the seizure of their vessels by the United States in Behring Sea, and 

 the Government of the United States having xiresented in its own behalf, as well as 

 of the lessees of the privileges of taking seals on the Pribilof Islands, claims for com- 

 pensaticm by reason of tlie killing of seals in the Behring Sea by persons acting under 

 the protection of the British flag, the arbitrators shall consider and decide iipon such 

 claims in accordance with justice and equity, and tlie respective rights of the high 

 contracting powers, and it shall be competent for the arbitrators to award such com- 

 pensation, as in their judgment, shall seem equitable." 



In your note of October 17, you say: 



I regret to inform you that Her Majesty's Government, after the fullest considera 

 tion, liave arrived at the conclusion tliat this new clause could not jiroperly be as- 

 sented to by tliem. In their opinion it implies an admission of a doctrine respecting 

 the liabilities of governments for the acts of their nationals or other persons sailing 

 under their flag on the high seas for which there is no warrant in the law of nations. 

 Thus it contains the follov.dng words: 



"The Government of the United States having presented on its own behalf, as well 

 as of the lessees of the privilege of taking seals on the Pribilof Islands, claims for 

 compensation by reason of the killing of scjils in Behring Sea by persons acting under 

 the protection of the British flag, the Arlutrators shall consider and decide upon 

 such claims." 



These words involve the proposition that Her Majesty's Government are liable to 

 make good losses resulting from the wrongful a'jtion of persons sailing outside tlieir 

 jurisdiction under the British flag. Her Majesty's Government could not accept- 

 such a doctrine. 



The President can not believe that Tvhile holding this view of its 

 accountability tlie Government of Great Britain will, i)endino' the Arbi- 

 tration, countenance, much less Justify or defend, the continuance of 

 pelagic sealing by its subjects. It should either assume responsibility 

 for the acts of these sealers, or restrain tliem from a pursuit the law- 

 fulness of wliii'h is to be determined by the Arbitration. 



In your note of February 29 you state that iler Majesty's Govern- 

 ment has been informed by the British Commissioners " that so far as 

 pelagic sealing is concerned, there is no danger of serious diminution 

 of the fur-seal species as a consequence of this year's hunting," and 

 upon this ground Lord Salisbury places his refusal to renew the modus 

 of last year. His lordship seems to assume a determination of the 

 Arbitration against the United States and in favor of Great Britain, 

 and that it is already only a question of so regulating a common right 

 to take seals as to iireserve the species. By what right does he do 

 this"? Upon wliat principle does he assume tluit if our claims are es- 

 tablished, any diminution of the seals, whether serious or not, during 

 this season, or indeed, any taking of seals, is to be without recompense? 



In the opinion of tlie President, it is not consistent with good faith 

 that either party to an arbitration should, ])endii!g a decision, in any 

 degree diminish the value of the subject of arbitration or take any 

 prolit from the use of it witliout an agieement to account. 



Belbre an agreement for arbitration luid been reached the prohibition 

 of ixilagic sealing was a matter of comity; from the moment of the 



