Mr. Wharton to Sir Julian Pauncefote.
Washington, July 23, 1891.
Sir: The President directs me to say, in response to your note of the 13th instant, that he notices with pleasure the good progress toward a full agreement upon the terms of arbitration indicated by your statement that only the seventh clause as proposed by this Government appears to you “to raise any serious difficulty.”
That clause was thus stated in my note of June 25:
It shall be competent to the arbitrators to award such compensation as in their judgment shall seem equitable to the subjects or citizens of Great Britain whose [Page 586] vessels may have been seized by the United States in the Behring Sea, if such seizures shall be found by the arbitrators to have been unwarranted; and it shall also be competent to the arbitrators to award to the United States such compensation as in their judgment shall seem equitable for any injuries resulting to the United States or to the lessees from that Government of the privilege of taking seals on the Pribyloff Islands, by reason of the killing of seals in the Behring Sea by persons acting under the protection of the British flag, outside of the ordinary territorial limits, and since the 1st day of January, 1886, if such killing shall be found to have been an infraction of the rights of the United States.
The objection you made to this clause is thus stated by you:
Her Majesty’s Government have no desire to exclude from the consideration of the arbitrators any claim of compensation in relation to the Behring Sea fisheries which the United States Government may believe themselves entitled to prefer consistently with the recognized principles of international law. But they are of opinion that it is inexpedient, in a case involving such important issues and presenting 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 argument 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, etc.
The President was not prepared to anticipate this objection, in view of the fact that Lord Salisbury, in his note of February 21 last, had asked a specific submission to the arbitrators of the British claim for seizures made in the Behring Sea. His language, which was quoted in my note of June 25, was as follows:
There is one omission in these questions which I have no doubt the Government 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 persons 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 seventh clause proposed, the claim of Great Britain for seizures made is defined and referred to in terms so correspondent to the request of Lord Salisbury that it can not be supposed 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 Sea, the arbitrators were authorized to give compensation; and if, on the other hand, these and other British vessels were found 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 arbitrators 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 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 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 [Page 587] each bad 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 defense 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 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 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 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 parties, and it shall be competent for the arbitrators to award 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 a satisfactory result than the general reference proposed by you. It is believed that the form of reference now proposed by him removes the objection urged by you to his former proposal.
I have, etc.,
Acting Secretary.