Mr. Willis to Mr.
Gresham.
Legation of the United States,
Honolulu, February 23,
1895. (Received March 8.)
No. 88.]Sir: I inclose herewith a memorandum of an
interview with Mr. Hatch, minister of foreign affairs, on the 18th
instant, in regard to the case of J. F. Bowler, who has asked the
protection of our Government as an American citizen, and who is now
serving his sentence in prison.
I also inclose copy of the correspondence on the subject; also copy of
the record of proceedings.
It is claimed that Mr. Bowler is not entitled to the protection of our
Government because he was naturalized under the Monarchy. He has not
taken the oath of allegiance to the Republic. Section 130, Hawaiian
Civil Code, sets forth the oath of allegiance as follows:
The undersigned, a native of ——, being duly sworn, upon his oath
declares that he will support the constitution and the laws of
the Hawaiian Islands, and bear true allegiance to His Majesty
——, the King.
The taking of the above oath naturalizes the alien and admits him
to Hawaiian citizenship. (Reports of Supreme Court of the
Hawaiian Islands, Vol. V., p. 169.)
Mr. P. C. Jones, whose letter of inquiry as to his present citizenship I
inclose in a dispatch of this date, having taken the oath of allegiance
[Page 836]
to the Monarchy, applied
in the year 1882 to our Government for information touching his right to
protection. Mr. Frelinghuysen replied:
In the absence of a direct judicial determination of the
question, I do not feel disposed to deny to Mr. Jones any right
or privilege pertaining to his character of American
citizenship, and therefore, while the Department will not
undertake to express any authoritative opinion on the effect
which his course in Hawaii may ultimately have on his status in
that regard, you are authorized to extend to him such protection
as may be properly due to a citizen of the United States
residing in and having acquired a commercial domicile in a
foreign State. This protection must, of course, be limited and
qualified by the liabilities and obligations incident to such
commercial domicile.
If you should conclude that Mr. Bowler is entitled to protection, there
are several questions suggested in the record and in the interview with
Mr. Hatch, the most important of which is that of jurisdiction.
The record came half an hour ago and I have thought it proper to send
without delay.
With assurances, etc.,
[Inclosure 1 in No. 88.]
Memorandum of interview with the Hon. F. M. Hatch,
minister of foreign affairs, February 18, 1895.
Mrs. Bowler, the wife of John T. Bowler, came to the legation on
Sunday night with the information that her husband had been required
to don the prison garb, under a sentence of which I knew nothing
except from newspaper report of preceding afternoon. I immediately
addressed a note to Mr. Hatch, asking him if this sentence had been
confirmed, and if so, could I have an interview with him at the
earliest opportunity. He fixed 9 o’clock this morning, at which time
I met him the at foreign office.
I reminded him of the understanding which had been in existence as to
United States citizens who were political prisoners—which was that I
should be informed of all the steps taken against them. I said to
him that this understanding had been between myself and Mr. Smith,
while he (Mr. Smith) was acting as minister of foreign affairs, and
also that I had received from him on the 6th instant a similar
assurance, and expressed my surprise that I had not been therefore
notified of the sentence against Bowler. He said there was some
mistake in regard to the matter in the office, and presumed that it
arose from the fact that Mr. Bowler was probably a naturalized
Hawaiian citizen. I replied that the Government could not have so
thought, as it had sent me official notice to attend Bowler’s trial
as an American citizen, which I had done.
I called his attention to the question of prison garb, and asked him
for a copy of the sentence against Mr Bowler, which ne sent for.
Upon perusing it, I called” his attention to the fact that there was
nothing in the sentence of the military commission or of the
commander in chief referring to the garb in which a prisoner was to
be clothed, and asked him under what law or regulation such action
had been taken. He replied that it was a prison regulation. I
answered that these prison regulations must be either under the law
or beyond the law. If beyond the law they could not be enforced, and
if under any law of the Republic of Hawaii, that law, I claimed, was
suspended by martial law, and that the imposition of the prison garb
was an addition to the punishment. He said the commander in chief
could issue an order now requiring this garb to be worn. I said that
it was not, as I understood the matter, within the power of the
commander in chief to increase a sentence which had once been
pronounced. He then claimed that the keeper of the prison himself
had the right to put this garb upon a prisoner, I replied that if he
could put this garb upon him he could put iron balls around his neck
or could increase in any way the physical suffering of a prisoner,
and I respectfully denied the right of any jailer to increase a
sentence of the military commission approved by the commander in
chief. I then called his attention to a different view of it—that,
even admitting it was within the strict letter of the law, was it
the best thing to be done for the future of the country? Would it
not leave in the hearts of these men and their children an undying
enmity against the Government when they recalled what they would
doubtless con elude was an unnecessary stigma? He replied that it
was necessary to make
[Page 837]
treason odious, and thus deter other criminals, and referred to the
severe punishment of Kiel in Canada, who had been let off and who
renewed his attack upon the Government, and was most severely dealt
with therefor.
I then asked him if any prisoners had been released. He said there
had been, and mentioned a man named White, who, he said, was very
guilty and ought not to have gotten off—that he was a dynamite-bomb
thrower. I then said: “Do you mean to say for your Government that
White was guilty?” He said: “Yes; and he ought not to have been
released.” He said others had been released, they being given the
option to leave the country or stand trial. I then made the point
that it was not fair to citizens of the United States to subject
them to a trial and punishment when an opportunity was given to
others of greater guilt—as in the case of Mr. White—to leave the
country, and I asked him in this connection if the Government would
consent to Mr. Bowler leaving the country on the same conditions as
the others. He peremptorily declined this proposition, saying that
Mr. Bowler had been tried and found guilty. I then asked him if
Bowler’s sentence was not the highest sentence of the law. He said
that it was. I then asked him if prisoners who had been guilty of
actual treason—captured with arms in their hands—had not received a
less punishment than Mr. Bowler. He said that some of them had
received punishment of five years’ imprisonment and a fine; but as
they had no money and the fine of $5,000 would have meant another
year’s imprisonment, the President had remitted the fine. “Then,” I
said, “it is evident from your statement that men with arms in their
hands have been given less sentence by your Government than this
man, who was found guilty of only misprision of treason, and who was
not an actual participant.”
In connection with the prison garb question, I also asked him if
there was any country in the world where political prisoners were
required to don the prison garb of the common felon. He said that he
did not know that there was, but he was not willing to admit that
Mr. Bowler was a political prisoner. I replied that I was satisfied
that my Government would consider Mr. Bowler and all of these
persons political prisoners, and that we would, under international
law as I construed it, be entitled to present the case in that way,
and if discrimination had been made in favor of other nationalities
it was the duty of our Government and its privilege to inquire into
these things.
I then asked him if Mr. Bowler was not permitted to leave the country
whether his Government would consent to suspend that part of his
sentence (if it was apart of it) which involved the wearing of the
prison garb. I said that in my judgment there might be some
questions raised as to the legality of the whole proceeding. He said
he would prefer that to be done rather than waive the regulation in
regard to the prison dress; that they were a small community out in
the Pacific Ocean, and must show firmness and enforce laws; that if
they withdrew this regulation it would be construed as weakness;
that they could not allow to one nationality that which was denied
to another; and that there were so many political questions and
nationalities now pressing for attention on his Government that it
would be impossible to yield.
I then asked him if I could have for my Government a copy of the
record and of the evidence, and I would not in this conversation ask
for a suspension of any portion of the sentence except that
referring to the prison garb. The principal object that I had in
view, I said to him in conclusion, was to have an opportunity to
present these matters, which involved serious questions of
citizenship and of property; that I did not feel it proper to decide
questions of such importance without consultation with the home
Government.
The conversation then turned upon the question of citizenship. I said
that as at present advised I was not prepared to admit that even if
Mr. Bowler, or anyone of the other prisoners, had taken out
naturalization papers they had deprived themselves of the right to
have the protection of our Government; that many persons now
supporting his Government still claimed American citizenship,
although they had taken out naturalization papers and held public
office here, and that I had a communication before me now upon this
subject. I said if his Government desired to discuss these questions
it seemed to me that it could be made a part of the record; that I
did not myself wish, in view of the conflicting opinions that had
been expressed in regard to citizenship here, to say to any man that
he was not entitled for that reason to the protection of my
Government, but that I would reserve that question for the decision
of my Government in these different cases; that I had no desire to
intrude officiously upon him in behalf of any who were not our
citizens, and that as to our citizens I desired to go only as far as
my duty in their behalf required me to go; that he would bear me
witness that I had not sought in any way to embarrass his Government
in its hour of trial, but that he must admit that these arrests and
imprisonments of so many American citizens should be inquired into,
and in a friendly way I was there for that purpose.
He then asked that I submit the requests I had made in writing, that
he might present them to the cabinet—which I agreed to do.
[Page 838]
[Inclosure 2 in No. 88.]
Mr. Willis to Mr.
Hatch.
Legation of the United States,
Honolulu, February 18, 1895.
Sir: Referring to the case of J. F. Bowler, an American citizen, who
by the sentence of a military commission confirmed by your
President, has been required to pay a fine of $5,000 and to be
confined in prison for five years at hard labor, I have the honor to
submit to your friendly consideration the following requests:
- First. That Mr. Bowler be permitted to leave the country
upon the terms extended to other prisoners alleged to be
guilty of the same or greater offenses.
- Second. That for the information of my Government a copy
of the record and evidence in his case be furnished.
- Third. That, pending the time necessary to communicate
with my Government upon the subject, that portion of the
punishment which requires Mr. Bowler to don the prison garb
be suspended.
It may not be improper in this connection to suggest that upon a
reexamination of the facts and law your Government may come to the
conclusion that the proceeding itself, as well as this portion of
the punishment, are not sustainable, in which event I feel assured
that it will be prompt to take proper action in the premises.
I am, etc.,
[Inclosure 3 in No. 88.]
Mr. Hatch to Mr.
Willis.
Department of Foreign Affairs,
Honolulu, February 21, 1895.
Sir: I have the honor to acknowledge the
receipt of your letter of the 18th instant in respect to the case of
Mr. J. F. Bowler, said by you to be an American citizen, in which
you make the following requests:
- First. That Mr. Bowler he permitted to leave the country
upon the terms extended to other prisoners alleged to be
guilty of the same or greater offenses.
- Second. That for the information of my Government a copy
of the record and evidence in his case he furnished.
- Third. That, pending the time necessary to communicate
with my Government upon the subject, that portion of the
punishment which requires Mr. Bowler to don the prison garb
be suspended.
The Government has given to this subject the earnest consideration
which requests submitted by the diplomatic representative of the
United States must always receive.
I have first to point out to you that Mr. J. F. Bowler is a Hawaiian
citizen, he having been naturalized as such on March 18, 1885. No
irregularity appears in the record of the interior department on
this subject.
This Government is therefore compelled to consider him as a Hawaiian
citizen only.
I forward for your information a copy of the record in his case. I
must point out to you, however, that no inference must be drawn that
we at present concede that any question concerning his case can
properly be made the subject of discussion between us other than
that of his naturalization.
[Page 839]
Prima facie, at least, Bowler is a Hawaiian citizen. If any grounds
can be shown for questioning the fact of naturalization or the legal
effect of it they will receive due consideration, but as a
preliminary matter only.
It is difficult to conceive any just reason upon which your first
request can be founded. No person who has been convicted before the
commission now in session has been set at liberty and allowed to
leave the country. The option has been given to several persons held
under arrest whose cases have not been reached by the commission to
stand trial or depart. The latter alternative has been accepted by
them. To make this course a precedent for the release of a convicted
person would speedily bring the administration of justice in these
islands into deserved contempt. If it once could be understood by
foreigners that the greatest risk run in the commission of crime
here would be to be given a free passage to the mainland, the
attraction of these islands would at once prove irresistible to the
criminal classes. Another reason of weight why such a course can not
be followed (except under peculiar circumstances) is the impression
of inequality which would be made upon the minds of Hawaiian
prisoners of aboriginal blood.
To open the jail doors to them upon such conditions would be exile;
to a person of foreign birth it is no punishment at all. In a
comumnity such as this, made up of persons of so many nationalities,
it is especially necessary that all appearance of favor in the
administration of the criminal law should be avoided. The Government
therefore feel constrained to deny the request that John P. Bowler
be set at liberty and permitted to leave the country.
The third request made by you, which involves a question of prison
discipline, must be considered as controlled by the foregoing
considerations, and is also denied.
I have, etc.,
[Inclosure 4, in No.
88.]
Mr. Willis to Mr.
Hatch.
Legation of the United States,
Honolulu, February 23, 1895.
Sir: I have the honor to acknowledge the
receipt of your letter of the 18th instant, and also your two
letters of the 21st instant.
At the request of your Government, I furnished a list of citizens of
the United States who, in my judgment, are entitled to its
protection. One of these, T. B. Walker, I have since learned is a
British subject. I note your statement that J. F. Bowler, Charles
Creighton, C. F. Gulick, Charles F. Moltino, and A. P. Petersen are
Hawaiian citizens. To this, as now advised, I can not agree, but
have considered it my duty, in view of the conflict of opinions and
decisions upon the subject, to submit the question of citizenship
with other questions to my Government and await its decision.
For this purpose I requested copies of the record of the proceedings.
The request for copies of record “before final sentence” was, as I
have heretofore orally explained, to avoid the appearance of
“reviewing” the deliberate final judgment of your Government. Copies
of the record in all cases, including those whose status as United
States citizens is in dispute, will, as I understand, after final
sentence be supplied by your Government. This considerate course
will be duly appreciated by my Government.
[Page 840]
Of the three requests submitted in the case of J. F. Bowler, your
Government has granted the one asking for a copy of the record. The
other two you discuss at some length, but decline to hear
discussion. I shall refer his case to my Government, and will
hereafter present its views.
The inquiry in your letter of the 18th instant as to whether
“protection” will be extended to citizens of the United States,
irrespective of their having taken part in this insurrection, is, I
beg leave to suggest, premature. The “protection” now asked for is
that such citizens, upon the question of their guilt as indicated,
may be accorded such trial and punishment as can be justified under
your law, under treaty, and under international law.
With renewed assurances, etc.,
