842 APPENDIX TO CASE OF GREAT BRITAIN. 
opinion that it is inexpedient, in a case involving such important issues, and pre- 
senting such novel features, to prejudge, as it were, the question of liability by 
declaring that compensation 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 argu- 
ment and decision as the facts themselves, and in order that this should be made 
quite clear, and that both Governments should be placed in that respect on the same 
footing,” &e. 
The President was not prepared to anticipate this objection, in view of the fact 
that Lord Salisbury, in his note of the 21st February last, had asked a specific sub- 
mission to the Arbitrators of the British claim for seizures made in the Behring’s Sea, 
His language, which was quoted in my note of the 25th June, was as follows: 
73 “There is one omission in these questions which J have no doubt the Goy- 
ernment of the President will be very glad to repair, and that is the reference 
to the Arbitrator of the question, What damages are due to the persous who have 
been injured, in case it shall be determined by him that the action of the United 
States in seizing British vessels 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 7th 
clause proposed, the claim of Great britain for seizures made is defined and referred 
in terms so correspondent to the request of Lord Salisbury that it cannot be sup- 
posed objection would have been made to it if it had stood alone. But a particular 
statement of the British claim for compensation 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’s Sea, the Arbitrators were authorized to give compensation; 
and if, on the other hand, these and other British vessels were tound 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 interest, the Arbitr ators 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 unlawfulness of the acts complained of. 
The President believes that Her Majesty’s Government may justly be held respon- 
sible 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 Behring’s Sea and 
to pursue therein the business of pelagic sealing was made the subject of diplomatic 
intervention by Lord Salisbury. In his opinion, 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 complained of. The presence of the master, or even of a 
third person, under circumstances calculated and intended to give encouragement, 
creates a liability for trespass at the common law, and much more if his presence is 
accompanied with declarations of right, protests against the defence which the 
owner is endeavoring to make, and a declared purpose to aid the trespassers if they 
are resisted. The justice of this rule is so apparent that it is not seen how in the less 
technical Tribunal of an international arbitration it could be held to be inapplicable. 
The United States might well insist that Her Majesty’s Government should admit 
responsibility for the acts of the Canadian sealers which it has so directly encouraged 
and promoted, precisely as in the proposal the United States admits responsibility for 
the acts of its revenue vessels. But with a view to remove what seems to be the last 
point of difference in a discussion which has been very much protracted, the Presi- 
dent is willing to modify his proposal, and directs me to offer the 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’s Sea, 
and 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 Pribylotf Islands, claims for 
compensation by reason of the killing of seals in the Behring’s Sea by persons act- 
ing under the protection of the British flag, the Arbitrators shall consider and decide 
upon such claims in acvordance with justice and equity and the respective rights of 
the High Contracting Parties, and it shall be competent for the Arbitrators to yaward 
such compensation as in their judgment shall seem equitable.” 
The President thinks that a particular statement of the claims of the respective 
Governments is more likely to lead to asatisfactory result than the general reference 
proposed by you. It is believed that the form of reference now proposed by him 
removes the objections urged by you to his former proposal. 
Ihave, &c. 
(Signed) W. F. WHARTON, Acting Secretary. 
