Baron Saurma to Mr.
Gresham.
[Translation.]
Imperial German Embassy,
Washington
,
March 19,
1895.
Mr. Secretary of State: As I had the honor to
inform your excellency in my note of November 11 last, the ordinance of
August 14 last for the suppression of smuggling of firearms—a copy of
which was transmitted at the time—has been promulgated in Apia for the
municipal district.
It was contemplated through the proclamation of appropriate consular
regulations to provide similar provisions for the districts outside of
the municipality. The draft of such, recommended by the presiding
officer of the municipality and the chief justice, has reached the
treaty powers in the meanwhile. This draft, a copy of which I beg to
inclose herewith, conforms closely to the above-mentioned ordinance of
August 14 last. As your excellency will see from the annexed copy of a
note from the British ambassador in Berlin of February 19 of this year,
the British Government, though objecting to section 4 of the draft
concerning the right of search, is willing to issue the proper consular
regulations with regard to all the rest.
[Page 1131]
I have the honor, pursuant to instructions from the Imperial Government,
to request your excellency to instruct the consul-general of the United
States in Apia in the same sense. At the same time I beg to call your
excellency’s attention to the fact that according to section 2 of the
draft the sale of all arms and all kinds of ammunition to natives is
prohibited, conforming also therein to the language of the Samoan acts,
Article III, section 1, paragraph 4, but that the American
consul-general in Apia, according to a copy, hereto annexed, of a
communication of October 17 last, addressed to the municipality, intends
to allow apparently the sale thereof for purposes of sport.
I beg your excellency to call the attention of Consul-General Mulligan
especially to this point, and to cause him to relinquish such
intention.
Awaiting a reply from your excellency,
I am, etc.,
[Inclosure 1.]
Draft: An ordinance regulating the importation of
and dealing with firearms and ammunition.
Short title: The short title of this ordinance shall be: “The arms
and ammunition ordinance, 1894.”
Interpretation: The word “president” means and includes the president
of the municipal council of Apia or any person acting under his
special authority.
-
Section 1. The importation into
Samoa of arms and ammunition, and of any implements for making
ammunition, by the natives of Samoa, or by the citizens or
subjects of any foreign country, or by any aliens whomsoever, is
hereby prohibited, except in the following cases:
- (a)
- Guns and ammunition for sporting purposes, for which
licenses shall have been obtained from the president
before ordering such arms and ammunition.
- (b)
- Small arms and ammunition carried by travelers as
personal appanage, not to exceed one rifle, one fowling
piece, and one revolver for each traveler.
- (c)
- Arms and ammunition imported by the Samoan Government
to protect itself and maintain order.
-
Sec. 2. The sale of arms,
ammunition, and implements for making ammunition to any native
Samoan subject or other Pacific islander, resident in Samoa, is
also prohibited.
-
Sec. 3. Every alien resident keeping
arms, ammunition, and gunpowder shall furnish the president,
upon his request, with statements showing the quantities of the
above-mentioned articles which he shall have on hand or in
stock, and shall give such further explanation relating to
transactions with such articles as the president may
require.
-
Sec. 4. The president shall have the
right to search from time to time the vessels and boats and all
stores and warehouses, in order to control the carrying out of
the provisions of this ordinance, and also the same right to
search specified dwelling houses within the district when he
shall have reasonable cause to believe from the affidavit of one
or more credible witnesses that arms, ammunition, or gunpowder
unlawfully imported or sold, or intended for unlawful sale, are
kept within the specified dwelling houses; provided always that
a competent consular representative shall be informed in time of
such measure, and shall have the right to watch the proceedings.
If by the search any arms, ammunition, implements for making
ammunition, or gunpowder be found which have been imported or
sold in violation of this ordinance, or which are kept for the
purpose of unlawful sale, the president shall cause them to be
seized and held until suitable legal action has been taken for
their forfeiture or release.
-
Sec. 5. Any arms, ammunition,
implements for making ammunition, or gunpowder imported or sold
or proven to be kept for sale in violation of section 1 or 2
shall be declared forfeited to the Government of Samoa by the
court.
-
Sec. 6. Whoever does, counsels,
aids, abets, encourages, or procures any other person to do any
act contrary to sections 1 or 2 shall on conviction be liable to
a penalty of not less than $5 (five dollars) or five days’
imprisonment, and not exceeding $20 (twenty dollars) or twenty
days’ imprisonment, or to both of such penalties, in the
discretion of the court, for each firearm, and to a penalty of
not less than $0.20 (twenty cents) or one days’ imprisonment,
and not exceeding $5 (five dollars) or five [Page 1132] days’ imprisonment, or to both
of such penalties, in the discretion of the court, for each
cartridge or for each half pound of powder. Provided always, That the total penalty in each case
shall not exceed $200 (two hundred dollars) or one hundred and
eighty (180) days’ imprisonment, or both together.
-
Sec. 7. Whoever refuses to comply, or
does not faithfully comply, with the provisions of section 3
shall on conviction thereof be liable to a penalty of not less
than $1 (one dollar) or one day’s imprisonment and not exceeding
$100 (one hundred dollars) or thirty days’ imprisonment, or to
both such penalties, in the discretion of the court.
- Whoever shall unlawfully resist the president in the
performance of the duties imposed upon him by section 4 shall be
punished as hereinbefore provided in this section.
-
Sec. 8. No prosecution under this
ordinance shall be after the lapse of two years from the
commission of the offense.
-
Sec. 9. This ordinanceshall take
effect on the day of its publication.
[Inclosure 2.]
Sir Edward B.
Malet to Baron von
Marschall.
Berlin
,
February 19,
1895.
Monsieur le Baron: In accordance with
directions which I have received from the Earl of Kimberley, I have
the honor to communicate to your excellency, in reply to the
inquiries contained in Count Hatzfeldt’s note to Lord Kimberley of
the 30th of October last, the views of Her Majesty’s Government upon
the question of the importation of arms and ammunition into the
Navigator’s Islands and the measures considered necessary to put a
stop to it.
To review the case briefly, the Samoan Government, as your excellency
is aware, desire that two ordinances should be passed to restrain
the sale of arms and ammunition, the one to apply to the
municipality of Apia, the other to enforce similar restrictions on
persons outside the limits of that municipality.
To meet the former object an ordinance regulating the sale of arms
and ammunition within the municipality was issued on the 14th of
August last, but the municipal council have endeavored to defeat its
object by issuing supplementary regulations limiting the right of
search.
The ordinance has now been modified and finally revised by the chief
justice, in virtue of the powers conferred upon him by Article V,
section 3, of the final act of the Berlin conference, and may, in
its present form, in the opinion of Her Majesty’s Government, be
accepted.
They are, therefore, prepared to instruct Her Majesty’s consul that
its validity should be maintained by him, as the chief justice is
the only person judicially qualified to interpret the act.
Nor is it advisable, in the opinion of Her Majesty’s Government, as a
matter of policy, to question the procedure of the chief justice,
seeing that the extension of the right of search to dwelling houses,
which is the main point in dispute, appears to be expedient in
existing circumstances in Samoa.
With regard to the districts outside the municipality of Apia, a
Samoan ordinance of 1892, applying only to Samoans, forbids
contravention of the provisions of the final act of Berlin. But as
this ordinance has not been found sufficiently effective, it is
thought desirable to enforce in these districts restrictions similar
to those adopted within the municipality.
For this purpose a draft ordinance has been prepared by the chief [Page 1133] justice and the
president of the municipal council. This ordinance has been
submitted to the treaty powers for approval, and the chief justice
is prepared to recommend the Samoan Government to pass it, if the
treaty powers would each instruct its consular representative in
Samoa, that such ordinance would be binding in the respective
consular courts, and should be the uniform and only law to be
administered there in this class of cases.
To the terms of this draft ordinance Her Majesty’s Government is not
disposed to take exception, as they sympathize with the objects
which the Samoan Government have in view and feel that every
possible moral support should be given to the chief justice and the
municipal president in their endeavor to attain them. They consider,
however, that the provisions of Article IV, conferring on the
president of the municipal council the right of search, are open to
serious objection, and they are of opinion that it would not be
desirable to allow the president to take upon himself powers of the
kind over British subjects. They hold that the power of search
should continue as at present, to be exercised under a warrant
issued, in the case of British subjects, by Her Majesty’s consul in
his capacity of deputy commissioner for the Western Pacific, or by
his locum tenens.
I am to add that, in the event of the Imperial Government being
disposed to adopt a similar course, Her Majesty’s Government would
take the necessary steps to issue regulations binding upon British
subjects, and, with the exception of the provisions as to the right
of search above referred to, as nearly as possible identical with
the extra-municipal law proposed by the chief justice and President
Schmidt.
I avail myself, etc.,
[Inclosure 3.]
Mr. Mulligan to
Mr. Schmidt.
Apia, Samoa
,
October 17, 1894.
Referring to our conversation of yesterday, in which you expressed a
desire that I should by proclamation or direct notice to each
individual give warning to American citizens in Samoa, outside of
the municipal district of Apia, not to sell ammunition to native
Samoans, I have the honor to reply that on inquiry I am informed by
Her Britannic Majesty’s consul, Cusack Smith, esq., that he has not
as yet issued such proclamation nor given such notice in the case of
British subjects; but I am ready to join with the consular
representatives of the other treaty powers in such public notice or
proclamation, addressed to all the citizens and subjects of the
treaty powers alike, against furnishing or supplying in any way,
directly or indirectly, arms or fixed or rifle ammunition to Samoans
or to others for their use.
In regard to mere loose sporting ammunition in small quantities for
fowling pieces, I am not at present satisfied that it would be
advisable on my part to include it in such an interdiction, even if
it be admitted that as consular representative of one of the
signatory powers I have the authority to do so. I do not understand
section 1 of Art. VII of the Berlin general act as including
sporting ammunition as such, nor am I persuaded that it is
desirable, in a time of peace, to extend its construction to that
extent.
I am aware, of course, that powder and shot intended primarily for
[Page 1134] sporting purposes
may under the pressure of necessity, be made up into fixed
ammunition for rifles, and I shall not hesitate to deal very
severely with any person subject to this jurisdiction against whom
information may be furnished, guilty of selling or otherwise
furnishing any such considerable quantity of loose ammunition as to
make it reasonably clear that such ammunition was not intended in
good faith for sporting purposes, but meant to be used for arms of a
military character. I am the more persuaded that the view which I
have endeavored to present is, under all circumstances, correct,
inasmuch as I understand the purpose of such proposed action on my
part was for the purpose of applying to American citizens in Samoa,
outside of Apia, the same restriction established within the
municipal district. This regulation last referred to, you will
permit me to call your attention, stops at merely forbidding a sale,
leaving open all the various ways in which even military cartridges
may be otherwise furnished or supplied by subterfuge, and is
therefore far from being comprehensively efficient, as would be a
like regulation applicable to other districts. Again, it would
appear that it is unnecessary for the natives to resort to the slow
and probably impossible means of manufacturing the loose into fixed
ammunition when it is made apparent by the last war that they were
supplied in reasonable abundance with regular metallic cartridges
adapted to warlike purposes.
With assurances of my continued regard and esteem,
I am, sir, etc.,
James H. Mulligan,
Consul-General, U. S. A.
