Mr. Gresham to Mr. Bayard.
Washington, May 12, 1894.
Sir: Yours of the 27th ultimo* has been received, I note your citation of the reply, made in the House Of Commons on the 26th ultimo by Sir E. Grey to an inquiry of Sir G. Baden-Powell, wherein the important announcement is made that the provisions of the award of the Tribunal of Arbitration, which Great Britain and the United States were bound to carry out, were matters of common knowledge in August last, and that “every possible means will be taken to give to sealers now at sea specific warning that the regulations will be enforced.” Sir E. Grey added the equally positive statement that “any British or United States vessel contravening the provisions of the Bering Sea award act, 1894, will be liable to be arrested and sent to a British court for trial,” the last phrase, of course, relating to the jurisdiction, of the courts of the two countries over vessels of the respective nationalities seized under the provisions of the concurrent acts of Parliament and Congress.
In this relation I may properly mention a conversation I had on the 12th ultimo with Mr. Goschen, Secretary of the British embassy, who called upon me in behalf of Sir Julian Pauncefote, then confined to his house by indisposition.
Mr. Goschen stated that Sir Julian had received an instruction from Lord Kimberley interpreting subclause 2 of section 7 of the British bill then pending, and read from a written memorandum as follows:
In clause 7, subclause 2, of the British bill the following phrase occurs: “Where * * * it is proved that the ship sailed from its port of departure before the scheduled provisions were published there,” etc. The publication referred to is that of the provisions of the award, not that of the bill.
Mr. Goschen added that it would please Sir Julian if I would make this statement to the Senate Committee on Foreign Affairs, in order that the position of Great Britain might be correctly understood.
After some conversation as to whether the “scheduled provisions” so referred to in the British bill were those of the Paris award itself, or of the regulations reported by the tribunal, I said to Mr. Goschen that it would be for the courts to decide what the words “scheduled provisions” mean; and that, in construing statutes and for the purpose of ascertaining the legislative intention, courts sometimes have recourse to the debates or discussions which occurred while the measure was under consideration, but that mere verbal communications from one government to another—such as that now made—would not be considered by a court. I preferred that any communication the British. Government might desire to make on this subject should be official and in writing. I added that if I should inform the Senate committee of the interpretation which Lord Kimberley placed upon subclause 2, and British courts should subsequently give it another and different construction, Her Majesty’s Government might feel somewhat embarrassed.
I subsequently received from the ambassador under date of the same day, a personal note, of which a copy is inclosed herewith,† conveying Lord Kimberley’s interpretation of the clause in question.
[Page 200]Not the least gratifying incident of the protrated negotiations was the subsequent amendment of subclause 2, section 7, of the bill, so that as finally passed it provides for proof that “the ship sailed from its port of departure before the provisons of the award mentioned in the first schedule of the act were known there, and that such person or the master of the ship did not, after such sailing and before the alleged offense, become aware of such provisions” in order to exonerate them.
I am, etc.,