No. 553.
Sir L. S. Sackville West to Mr. Bayard.

Sir: I have the honor to inform you that I am instructed by the Marquis of Salisbury to communicate to you the inclosed correspondence with regard to the case of Gurr versus Marquardt, at Apia.

Her Majesty’s Government have been informed that the United States Government share the contention of the German Government that the case in point is subject to German consular jurisdiction and that the municipal magistrate was not competent to deal with it.

Her Majesty’s Government, however, are of a different opinion, and in communicating this correspondence Lord Salisbury has requested me to ask the United States Government whether upon an examination of the facts as therein stated they still concur in the views of the German Government.

I have, etc.,

L. S. Sackville West.
[Inclosure 1.]

Count Hatzfeldt to the Marquis of Salisbury.

[Translation.]
Confidential.]

My Lord: With reference to your lordship’s note of the 14th instant, on the subject of the competence of the municipal judge at Apia, in the case of Gurr v. Marquardt, I am instructed by my Government to make the following communication to your lordship:

German subjects in Samoa are, according to practice and the terms of the treaty of friendship between Germany and Samoa of the 24th January, 1879, subject to the the German consular jurisdiction. This consular jurisdiction is not restricted by the municipal convention of the 2d September, 1879, but is expressly upheld in Article [Page 781]ions contained in the regulations and the jurisdiction of the municipal judge do not affect German subjects, except in the case of offenses not contemplated by the German criminal code.

This view has always been held by the German Government, and it was only on the above understanding that the German consul was empowered to give his assent to the regulations issued by the municipal authorities.

From the communications made to the German representative at Apia by his British colleague, the Imperial Government had inferred that the British Government did not recognize the competence of the municipal judge in criminal offenses of a grave character, and that they accordingly held, on the whole, the same view as the German Government in the matter.

The Imperial Government have hitherto not thought it necessary to make any express statement of their views in regard to the regulations to Her Majesty’s Government.

The Secretary of State of the United States, having examined the provisions of the convention which bear upon the case in question, has instructed the American representative at Apia not to claim jurisdiction in the case, But to leave it to be dealt with by the German consul.

This particular case is therefore practically settled.

I avail, etc.,

Hatzfeldt.
[Inclosure 2.]

The Marquis of Salisbury to Count Hatzfeldt.

Confidential.]

M. l’Ambassadeur: I have the honor to acknowledge the receipt of your excellency’s letter of the 25th of November, in reply to mine of the 14th of the same month, upon the subject of the competence of the municipal judge at Apia in the case of Gurr v. Marquardt.

Your excellency observes that German subjects are, according to practice and to the terms of the treaty of friendship between Germany and Samoa of the 24th January, 1879, subject to the German consular jurisdiction, and that this latter is not restricted by the municipal convention of the 2d September, 1879, but is expressly upheld in Article VI of that convention, as you proceed to explain.

Her Majesty’s Government have since received a full report of the proceedings in the case, an examination of which has entirely confirmed them in the views expressed in my note of the 14th November last.

The municipal magistrate is empowered by the convention of 1879 to try all offenses against the regulations of the municipal board by whomsoever committed.

The municipal board is empowered to make and enforce regulations and by-laws with regard to “police and good order.”

Clause 76 of the municipal regulations provided that any person who shall be guilty of an assault (with certain exceptions not affecting the present case) shall be liable, on conviction before the municipal magistrate, to the punishment therein prescribed.

That regulation was assented to by the representatives of the three treaty powers, audit in no way conflicts with the general exterritorial jurisdiction reserved to the Imperial German Government over German subjects. The intervention of the German consul was based on the ground that the offense charged was not “a common police offense”; but it is abundantly clear from the evidence that such a contention can not be supported.

It was a case of common assault, such as is summarily dealt with by police magistrates in all countries, and Her Majesty’s Government can only express their regret at the failure of justice which has unfortunately occurred.

I have, etc.,

Salisbury.
[Inclosure 3.]

Sir C. Mitchell to the Marquis of Salisbury.

[Confidential.]
No. 35 Consular.]

My Lord: I have the honor to inclose copy of a dispatch which I have received from Mr. W. Wilson, acting vice-consul at Samoa, reporting the action taken by M. VI of that convention. According to the terms of that article, that penal provis-[Page 782]Becker, the imperial German consul-general, in declaring that the municipal regulations are not applicable in the case of a German subject charged with committing an assault on premises situated within the municipal district of Apia, and that such German subject is liable in respect of the alleged offense to the “jurisdiction of the German consular court only.

The case in question does not appear to me to be an important one; but the difference of opinion among the consular members of the municipal board may, perhaps, cause some embarrassment. I have therefore taken the opinion of the acting chief judicial commissioner on the matter, of which I inclose a copy; and, in accordance with this opinion, I have sent to Mr. Wilson the instructions contained in a letter, of which a copy is inclosed, together with a copy of Mr. Berkeley’s opinion.

I have, etc.,

C. B. H. Mitchell.
[Inclosure 4.]

Acting Vice-Consul Wilson to Sir C. Mitchell.

Sir: I have the honor most respectfully to report, for your excellency’s information, particulars of a case which have come before my notice as proconsul and as a member of the appellate court of the municipality of Apia.

Mr. E. W. Gurr, a British subject, lodged a complaint against M. Marquardt, a German, in the municipal court, for a common assault. The case was heard before Mr. Martin, the municipal magistrate, on the 29ch ultimo. I am informed by Consul-General Sewall, who was present, as well as others who watched the case, that the interruptions caused by the Germans present were of such a nature that had they taken place in any other court the majority of Germans would have been committed for contempt.

At one time the defendant left the court and went to the German consulate, but was sent back by orders of the German consul to the court-house. At 2.30 p.m. a letter (copy inclosed) was read from the German consul, in which he withdrew M. Marquardt from the jurisdiction of the municipal court, affirming that he was only liable to that of the German consular court. On receipt of Consul Becker’s letter Mr. Martin dismissed the case.

An appeal was lodged by Mr. Gurr with Consul-General Sewall, president of the appellate court, against the dismissal of the case by the municipal magistrate.

Believing that this case was within the jurisdiction of the municipal court as per regulation 76, and that Mr. Gurr was entitled to appeal as per regulation 87 of the municipality of Apia, I requested Consul-General Sewall to call a meeting of the appellate court. M. Consul Becker refused to assist; therefore the appellate court could not sit, and Mr. Gurr’s appeal remains unheard.

I have the honor to inclose for your excellency copy of the notes of the trial as given by the municipal magistrate.

I have, etc.,

W. H. Wilson.
[Inclosure 5.]

The German consul at Apia to the municipal magistrate.

Sir: I have the honor to inform you that, with regard to those of the municipal regulations which, like the greater part of regulation No. 76, provide for the punishment of criminal offenses, I am directed by instruction received from my Government that they are not applicable to German subjects.

I am of opinion that assault in the case of “Gurr v. Marquardt” is of the nature of a criminal and not only of a common police offense. M. Marquardt being a German subject, he is in the said case liable to the jurisdiction of the German consular court only.

I have, etc.,

Becker,
Imperial German Consul.

I hereby certify the above to be an exact copy.

Otto Martin,
Municipal Magistrate.
[Page 783]
[Inclosure 6.]

Appeal to the appellate court of the municipality of Apia, in the matter of the complaint of E.W. Gurr against N Marquardt.

The appellant states that he lodged a complaint against the respondent for having committed upon him a common assault.

That afterwards the respondent was examined, hut the counsel of the appellant was not permitted to cross-examine the respondent, and an adjournment was granted by the court until the hour of 2 p.m.

That the appellant duly appeared at such time, but by consent the case was further adjourned until the hour of 2.30 p.m.

That upon the opening of the court the case being called on for hearing, and opened at the said hour, a letter was read from His Imperial German Majesty’s consul, a copy whereof is hereunto annexed. Whereupon the municipal magistrate summarily refused to proceed further with the hearing of the appellant’s case of common assault.

That the appellant complains that the municipal magistrate had no authority to dismiss the said case in the manner hereinbefore stated.

That the municipal court of Apia of Samoa is a court of Samoa, and is not amenable to the interference of other powers or authorities save within certain treaty limits.

That the case in question was one of common assault, and could have been adjudicated upon by the municipal magistrate, and was within his reasonable jurisdiction, and that the action of His Imperial German Majesty’s [consul] was, in so prohibiting the said case being heard, contrary to the convention whereunder the municipal regulations are now carried out.

And the appellant further says that His Imperial German Majesty’s consul has no right to interfere with regard to police offenses.

And the appellant claims that this case shall be remitted to the municipal magistrate from the time of the interruption thereof.

And that the municipal magistrate be instructed to proceed with the further hearing and final decision of the said case.

[Inclosure 7.]

Regulation 76 of the municipal board.

[Inclosure 8.]

Regulation 87.

[Inclosure 9.]

The American consul-general to the German consul-general.

Sir: An appeal from the magistrate’s action in the case “Gurr v. Marquardt” has been placed in my hands as president of the municipal court of appeal.

Municipal regulation numbered 87 provides that an appeal shall be heard as soon as possible after the date of the notice of appeal. The hearing of this appeal has already been delayed over two weeks, and I would name Monday at 2 o’clock as a suitable time at which to set down the hearing.

Will you let me know, at your earliest convenience, if this time is satisfactory to you, in order that notices may be sent to the parties concerned?

I have, etc.,

Harold M. Sewall,
Consul-General.
[Inclosure 10.]

The German consul-general to the American consul-general.

Sir: In answer to your letter of the 13th August, and with reference to our conversation of yesterday, I have the honor to inform you that I can not assist at any meeting of the municipal court of appeal concerning the case of “Gurr v. Marquardt.”

I have, etc.,

Becker.
[Page 784]
[Inclosure 11.]

Police vs. Marquardt (German), in the employment of Deutscher Handels-und Plantagen-Gesellschaft, etc., July 29, 1887.

Mr. Hetherington for complainant, Mr. E. W. Gurr.

Charge, assault and battery, committed yesterday afternoon on the ground of the Deutscher Handels-und Plantagen-Gesellschaft, where E. W. Gurr went for the purpose of taking delivery of goods. The person in charge of establishment promised to deliver goods. E. W. Gurr signed a receipt for these goods; then E. W. Gurr went to take delivery of goods; but then, regarding the goods, it was declared that delivery could not be given. Seeing the receipts in the hands of Marquardt he seized the receipts and was about to leave the premises of the Deutscher Handels, etc., when E. W. Gurr received a violent blow on the head from the defendant.

E. W. Gurr, sworn:

“Went to the Deutscher Handels-und Plantagen-Gesellsehaft’s premises at 2 p.m.; saw some clerks; went into the goods’ shed and asked Marquardt about the goods; signed receipts for goods (delivery of which was promised) for the delivery of same, intending to take them away afterwards; heard then that goods would not be delivered, although signed for; had some conversation with Marquardt, and afterwards seized receipts; then turned away to leave premises; received a blow from defendant; did not threaten before, and received the blow from behind.”

Witness Charles Taylor, in the employ of E. W. Gurr:

“Was yesterday on the premises of the Deutscher Handels und Plantagen-Gesellschaft; saw E. W. Gurr and Marquardt; heard them talk together; saw E. W. Gurr seize the receipts from Marquardt; then E. W. Gurr turned to go away; then Marquardt ran after E. W. Gurr; saw him strike E. W. Gurr from behind.”

Asked by Marquardt:

“Was close by when conversation went on; saw Marquardt strike from behind forcibly.”

Marquardt, defendant, sworn:

States, with regard to the receipts, that he requested E. W. Gurr to cancel the receipts either by scratching out his signature or writing not received; then E. W. Gurr seized the receipts from him and said, “If you don’t give me the receipts, then I will take them.” Then E. W. Gurr struck him on the nose; after that he returned the blow, and Charles Taylor struck him too.

Then M. Krause took up M. Marquardt’s case, pleading as a friend.

Decision.

Case being taken up by German consulate, as per letter of the 29th July, was then dismissed from magistrate’s jurisdiction.

Certified this to be a true copy of the magistrate’s notes.

Otto Martin,
Municipal Magistrate.
[Inclosure 12.]

opinion by mr. h. s. berkeley.

In this case one Gurr, a British subject, charges one Marquardt, a German subject (both parties being resident within the municipality of Apia, Samoa), with having committed an assault upon him in the business premises of a firm of German subjects trading within the municipality.

The charge was laid, by way of complaint, before the magistrate of the municipality of Apia, an officer appointed by the municipal board of Apia, under article 5 of the municipal convention of the 2d of September, 1879, to try “all offenses against the regulations of the municipal board by whomsoever committed.”

The municipal board of Apia, which by article 2 of the municipal convention of 1879 consists inter alios of “those foreign consuls resident in Apia whose nations have entered into treaty relations with Samoa,” is by article 3 empowered inter alia to make and “enforce regulations and by-laws with regard to police and good order.”

By clause 76 of the municipal regulations, any person who shall be convicted of an assault (except an assault coming within the provisions of regulations 22 and 41) is liable on conviction before the magistrate to the punishment prescribed for such [Page 785]offense in the schedule to that clause. The assault charged is not such an assault as conges within the exception in the schedule to clause 76, and it is claimed by Gurr that it was an assault within regulation 76, and that as such the municipal magistrate had power and jurisdiction to try and determine the charge as laid. The complaint of Gurr was received by the magistrate, and the evidence of the complainant and his witnesses and that of the defendant was taken.

At this stage the Imperial German consul appears to have intervened, and to have excepted to the jurisdiction of the magistrate to try Marquardt for the offense for which he was charged. The grounds of the exception taken by the Imperial German consul being that the assault complained of in this case is of the nature of a criminal and not of a common police offense,” and that “M. Marquardt being a German subject is consequently liable to the jurisdiction of the German consular-court only.” Upon this exception to his jurisdiction being taken the municipal magistrate dismissed the case without coming to any decision upon the evidence taken before him. An appeal to the appellate court of the municipality of Apia of which each of the consuls resident in Apia is a member, was subsequently lodged by Gurr against the dismissal of the case by the municipal magistrate. Notices of the appeal were sent by the president, the United States consul, to the Imperial German consul, with a suggestion for fixing a day for hearing the appeal. In reply to this notice the Imperial German consul stated that he could not “assist at any meeting of the municipal court of appeal concerning the case of ‘Gurr v. Marquardt.’”

This refusal on the part of the Imperial German consul was consistent with the: position which he had previously advanced, viz, that the offense with which Marquardt was charged was not an offense cognizable in the court of the municipal magistrate of Apia. If the Imperial German consul is right in the view he takes of the jurisdiction of the municipal magistrate in cases of this description, then no appeal would lie to the appellate court. Indeed, in my opinion there is in no case a right of appeal against the dismissal of a case by the municipal magistrate, whether such dismissal be on the ground of want of jurisdiction or on any other ground. The right of appeal is the creation of statute, or, as in this case, of regulation, and the words creating this right are to be construed strictly, and not extended beyond their ordinary meaning. The regulation which confers the right of appealing in certain cases against the decisions of the municipal magistrate is the eighty-seventh. By that regulation every person against whom judgment is rendered shall be entitled to appeal from such decision to the consular members of the municipal board. It is not from every decision of the magistrate that an appeal may be made, but only from such decisions as are judgments. In this case there was no judgment given, but the complaint was dismissed for want of jurisdiction.

In England or in a British colony the propriety of the magistrate’s refusal to entertain the charge would be determined not by way of appeal, but on an application to the high or supreme court for an order directing the magistrate to hear and determine the complaint. On such an application the question of the jurisdiction of the magistrate would be raised and settled, and if it appeared that the magistrate had jurisdiction he would be ordered to proceed to judgment.

There is in Samoa no jurisdiction corresponding to a high or supreme court to which application could be made for mandatory directions to the municipal magistrate; and consequently, as there is no right of appeal in the ordinary course, the remedy, if the municipal magistrate has wrongfully refused to hear this complaint, can only be obtained by convincing the magistrate himself that he has jurisdiction in the case of German subjects. So much for the right to appeal.

The question whether the municipal magistrate had, under the municipal regulations passed under the authority of the convention of 1879, jurisdiction to entertain this complaint, is one of greater difficulty, and depends upon the meaning to be assigned to the words “regulations and by-laws with regard to police and good order,” in Article III of the convention, and upon the powers and authority to affect German subjects conferred thereby, and by Article V upon the municipality and the municipal /magistrate of Apia. The Imperial German consul contends, upon his reading of instructions from his Government, that these words do not confer upon the municipal board power to make regulations which will in their turn confer power upon the municipal magistrate to inflict punishment upon a German subject for the commission of a criminal offense within the municipality; and he further contends that such words limit the powers of the municipal board to the making of regulations concerning what he terms “common police offenses,” and he states it as his opinion that the offense with which M. Marquardt was charged was not a common police offense “within the meaning of the words “police and good order” as used in Article III, but that it is rather in the nature of a “criminal offense” for the commission of which a German subject is answerable to the German consular court only.

It seems to me that the interpretation placed by the Imperial German consul upon the meaning of the words “police and good order” in Article III, while it may in cases where serious criminal offenses are charged against German subjects be the [Page 786]correct one, is not applicable, on the facts proved and admitted, to this case. The offense charged here is a simple police case, where on a dispute arising between two persons one, it is charged, commits upon the other a common and apparently slight assault, and is thereby guilty of a breach of the peace and order of the municipality. The offense charged is one which would, both in Germany and in Great Britain, be heard and determined by a magistrate; it is nothing more than a common brawl, in which, apparently, both parties lost temper, and in which one may or may not be more to be blamed than the other. Such a case is one which is most “properly settled as soon as may be before a magistrate, and, if not dismissed, would probably be met by the infliction of a fine of a few shillings upon the party most to blame. If the offense charged here may property be regarded as an offense against “the peace and order” of the municipality, then it might have been tried by the municipal magistrate, notwithstanding that one of the parties was a German and the other a British subject; for, by Article V of the convention, all such offenses may be tried by such magistrate, by whomsoever such offense may be committed.

It seems to me that the interference of the imperial German consul was uncalled for, and that the municipal magistrate was wrong in coming to the conclusion that he had no jurisdiction to entertain the complaint. As I have before pointed out, however, there is no legal machinery by which the municipal magistrate can be ordered to hear the complaint should he still continue to refuse to do so. It therefore seems to me that if Gurr conceives that he has been wionged by the alleged assault, his simplest course would be to lay complaint against Marquardt in the imperial German consular court, where he will, on proving his case, be sure to receive any reparation to which he may show himself entitled, for, while Article III of the convention confers jurisdiction on the municipal board of Apia to deal by regulations with cases such as this, there is nothing in that article which deprives the imperial German consular court of any jurisdiction which it may have over German subjects.

H. S. Berkeley,
Acting Chief Judicial Commissioner.

[Inclosure 13.]

Sir C. Mitchell to Acting Vice-Consul Wilson.

Sir: I have the honor to acknowledge the receipt of your dispatch of the 25th August, respecting the complaint of Mr. W. Gurr against M. Marquardt, a German subject, and to the action of the German consul-general in declaring that the offense with which M. Marquardt was charged was not triable by the municipal magistrate.

I have submitted these papers to the acting chief judicial commissioner, of whose opinion I inclose a copy. You will advise Mr. Gurr, if he wishes to proceed against M. Marquardt, to do so in the German consular court. You will also inform the German consul-general that you have recommended this course, adding at the same time that I am advised that the case is one in which the municipal magistrate should properly have considered he had jurisdiction to entertain the complaint, but that there is nothing in the convention which deprives the imperial German consular court of any jurisdiction which it may have over German subjects.

I am, etc.

C. B. H. Mitchell.