APPENDIX TO CASE OF GREAT BRITAIN. 943 
is, What does good faith, to say nothing of international comity, require of the par- 
ties to the arbitration? If the contention 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 affects the permanent value of our 
property. 
Was it ever heard before that one party to such a controversy, whether a nation 
or an individual, could appropriate the whole or any part of the income and profits, 
much less the body of the contested property, pending the litigation, withont 
accountability? Usually a Court of Chancery would place a receiver or trustee in 
charge, and hold the income of the property for the benefit of the prevailing party. 
You say that Lord Salisbury, rejecting the illustration used by Mr. Blaine, ‘‘sug- 
gests that the case is more like one of arbitration respecting 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 that, being in contention with a neigh- 
bour regarding the title to a meadow, he could by any precedent in the Equity Courts 
or by any standard of common honesty be justified in pocketing the whole or any 
part of the gains of a harvest without accountability to the adverse claimant whose 
exclusive title was afterwards established. It is no answer for the trespasser to say 
that the true owner will have an undiminished harvest next year. Last year’s har- 
vest was his also. If by the use of the plural pronoun his Lordship means that the 
harvest of the contested meadow is to be divided between the litigants, I beg to 
remind him that the title of the United States to the Pribyloff Islands has not yet 
been contested, and that our flag does not float over any sealing-vessel. The illus- 
tration 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 correspondence 
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 Cana- 
dian sealers. The attempt to make a damage clause one of the Articles of the Arbi- 
tration Agreement failed, because Her Majesty’ s Government would not consent that 
the question 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 the 23rd July I said: ‘‘The President believes that Her Majesty’s 
Government may justly be held responsible, 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 the Government to do the act complained of. 
The presence of the master, or even of a third person, under circumstances calcu- 
lated and intended to give encouragement, creates a liability for trespass at the com- 
mon law, and much more, if his presence is accompanied with declarations of 
162 right, protests against the defence which the owner is endeavouring 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 encour- 
aged and promoted, precisely as in the proposal the United States admits responsi- 
bility 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 pro- 
tracted, the President 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 Pribyloff Islands, claims for 
compensation by reason of the killing of seals in the Behring’s Sea by persons acting 
under the protection of the British flag, the Arbitrators shall consider and decide 
upon such claims in accordance with justice and equity, and the respective rights of 
the High Contracting Powers, and it shall be competent for the Arbitrators to award 
such compensation as, in their judgment, shall seem equitable.” 
In your note of the 17th October you say : 
“1 regret to inform you that Her Majesty’s Government, after the fullest considera- 
tion, have arriyed at the conclusion that this new clause could not properly be 
