Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President, Transmitted to Congress December 2, 1895, Part II

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.

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.,

Saurma.

[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 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 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.,

Edward B. Malet.

[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 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.