Mr. Gresham to Sir Julian Pauncefote.

No. 81.]

Excellency: On the 26th ultimo you left at this Department a memorandum stating that an ordinance had been prepared by the chief justice and the president of the municipal council of Samoa, designed, should it be adopted, to restrain the sale of arms and ammunition in Samoan territory outside the limits of the municipal district. Her Majesty’s Government sympathizes with the objects contemplated by this ordinance, but objects to the provision which confers the right of search on the president of the municipal council. In view of that objection, you observe that “the British and German Governments think that the only course open is for the representatives of the treaty powers to issue separate regulations for the control of this traffic, which shall be binding on their respective nationals, and which should be, as far as possible, identical in terms with the extra-municipal ordinance proposed by the chief justice and President Schmidt. Her Majesty’s Government have accordingly instructed the British representative in Samoa to concert with his German and United States colleagues with the above object;” and on behalf of your Government you express the hope that “if the United States Government concur in the expediency of the course proposed, instructions may be sent to the United States consul-general at Apia with as little delay as possible.”

With a view of replying to your memorandum, I have examined the proposed ordinance with care. In its main prohibitory provisions this ordinance is substantially identical with the act itself. But the act fails to provide either punishments for violation of its own provisions or any such means of eliciting information from individuals or for searching premises as are usually to some extent necessary in the enforcement of prohibitions of the character prescribed by it. To supply these omissions the ordinance now proposed as a model for additional regulations provides, in substance—

1.
For punishing by fine and imprisonment the importation and sale of arms and ammunition in violation of the prohibitions of the act.
2.
For requiring reports to the president of the municipal council from persons dealing in or having possession of such articles, as to amounts thereof, and transactions in respect to the same.
3.
For authority to the president of the council to search vessels and warehouses, and (on affidavit made to him) dwellings also, for such articles suspected to be unlawfully imported, sold, or held for sale.
4.
For the judicial forfeiture of such articles to the Samoan Government when ascertained to be unlawfully imported, sold, or held for sale.
5.
For punishing by fine and imprisonment persons who resist search or refuse to make reports to the president of the council when required.

I do not feel authorized to issue to the consul-general of the United States at Apia such regulations as the above, which, it seems to me, can only be adopted and promulgated by an exercise of legislative [Page 1152]power which this Department does not possess. That officer, it is supposed, can, under the provisions of existing legislation, try and punish American citizens in Samoa charged with violating the prohibitions of the general act in respect to the importation and sale of arms and ammunition; and he may punish such violations either by fine or imprisonment, or both. I should have no objection to advising him in such cases to impose on guilty parties the punishments contemplated by Article YI of the proposed ordinance. But American citizens in Samoa can not be required by the consul, or by any regulations of the State Department, to make reports to the president of the municipal council, or to submit to his searching their premises, and of course they can not be subjected to punishment for refusing to make reports, or for resisting search.

I have, etc.,

W. Q. Gresham.