Sir Julian Pauncefote to Mr. Gresham.
Washington, April 11, 1894.
Sir: I have the honor to acknowledge the receipt of your note of yesterday’s dace and to express my regret at the cause which, as you inform me, prevents you from entering more fully at present into the subject of my note to, you of the 5th instant.
I have acquainted my Government by telegram with the grounds on which the President suggests that the proposed discussion as to the best mode of carrying out the fourth and seventh articles of the Bering Sea award should be deferred.
I desire to take this opportunity of correcting a misapprehension which appears to have arisen as regards the abandonment of the proposals for a modus vivendi.
I have no recollection of Her Majesty’s Government having refused to assent to any reasonable proposal on the subject.
They originally expressed their willingness to agree to a renewal for one year of the existing modus vivendi, which closes up the whole of Bering Sea, but your Government thought this proposal insufficient, and desired that the whole of the waters covered by the award should be similarly closed. Her Majesty’s Government considered so great an extension of the present modus vivendi unnecessary, and, as the result of further negotiations, an arrangement was drawn up under which the close season of three months prescribed by the award (from May 1 to July 31) should be put in force under the existing legislation in both countries, as far south as the forty-second degree, that being the limit of the British statutory power, and no seals being found after the 1st of May below that degree. This was tantamount to the enforcement of the close season prescribed by the award. It was also provided that if the two powers should not have completed the necessary legislation before the 1st of August, the close season should continue for such further period as the powers should think necessary for that purpose.
The above modus vivendi (which was part of a larger arrangement embracing other matters) was accepted by both powers, but Her Majesty’s Government, in order to obviate any future misunderstanding, desired to stipulate that if the British legislation should be completed by the 1st of August the seas should be open to British sealers whether, at that date, the legislation of the United States was complete or not.
This stipulation was objected to by the President on the ground, as I understood, that it implied a possible tardiness on the part of the United States Government in perfecting its legislation. I offered, therefore, to substitute a clause providing, that the close season should continue, as regards the vessels, subjects, or citizens of either power, whose [Page 173] legislation might not have been completed by that date, until such power should have carried out its obligations in that respect.
But these suggestions were of no avail, and on the 2d instant you informed me that the President had decided to abandon the modus vivendi, and to proceed with legislation to enforce the whole award.
I am unable, therefore, to concur in the statement at the commencement of your note that Her Majesty’s Government refused their assent to one or more offers of your Government to enter into a modus vivendi.
At the same time I did not intend to complain of the action of your Government in abandoning the the modus vivendi, as it has been found practicable by both powers to dispense with it by timely legislation.
Turning now to the objections stated in your note to certain provisions of the British bill to carry out the award, I beg leave to make the following observations:
As regards the penalties proposed by the bill, I remember your pointing out to me that they were less deterrent than those imposed by the legislation of the United States, which gave no discretion to the courts but enacted absolute forfeiture of the vessel for breach of the regulations and “minimum” fines. This led to an academic discussion on the system, of “minimum” punishments, which, I observed, was not favored in British legislation. I certainly understood your remarks in the light of mere criticism and not of serious objection, as it must be assumed that the British courts would not do otherwise than impose adequate punishments.
As regards the objection to the phraseology of section 1, relating to the seizure of ships, I observed that in my opinion the word “may” would be construed as imperative, and that, in any case, the instructions to the naval officers would probably remove all doubt on the point.
As regards the seventh section, which relates to the question of notice to the sealers of the regulations having been put into force, I trust that the assurances contained in my semiofficial communication of the 9th instant will have disposed of the objection to that provision, as they were evidently based on a misapprehension of its meaning and effect.
I beg to thank you, in conclusion, for the copies of the United States act to give effect to the award, which are transmitted in your note.
I have, etc.,