Baron von Thielmann to Mr. Olney.
Washington , May 13, 1896 .
Mr. Secretary of State: I have had the honor to receive your note of the 8th instant, No. 151, in which you declare that it is not permissible and not in conformity with the Samoa act for Mr. Schmidt, president of the municipal council, to represent Mr. Henry C. Ide, chief justice of Samoa, during the hitter’s absence on leave. You furthermore express the wish in said note that I shall communicate your view to the Imperial Government and request it to instruct the Imperial consul at Apia to represent, conjointly with his colleagues of the United States and Great Britain, to Mr. Schmidt that he is not authorized, as president of the municipal council, to discharge the duties of the chief justice, except in the express contingency of that office being absolutely vacant.
Your excellency refers, in your aforesaid note, to the note of April 15, 1895, which was addressed to the late Mr. Gresham, then Secretary of State, by Baron von Saurma, my predecessor in office, in which the latter stated that, in the opinion of the Imperial Government, it was proper for the president of the municipal council, according to Article III, section 2, of the Samoan act, to represent the chief justice in his absence, and you conclude from the text of the passage in question of the Samoan act that this view of the Imperial Government is at variance with both the letter and spirit of the Samoan act.
After the Department of State had not disputed, for a whole year, the view of the Imperial Government which was set forth in that note of this embassy of April 15, 1895, it can not seem strange that until I received your last note of the 8th instant I assumed that the United States Government also considered it proper for the chief justice, when on leave, to be represented by the president of the municipal council. I do not, however, feel disposed to attach any importance to such a view of the case, based, as it was, solely upon the lack of prompt disavowal, inasmuch as it appears in such a way as to leave no room for doubt, from the correspondence between the Department of State and this embassy, which lies before me, that the Department of State, while the Hon. W. Q. Gresham was at its head, fully shared the view of the Imperial Government, and not only thought it no breach of the Samoa act for the chief justice to be represented during his temporary absence by the president of the municipal council, but expressly declared that it agreed to such an arrangement.
The notes to which I refer and to which I have the honor to invite your excellency’s attention are the following:
- Hon. Alvey A. Adee, Acting Secretary of State, stated in his note of August 1, 1893, to Baron von Ketteler, chargé d’affaires, that the newly appointed chief justice, Mr. Henry C. Ide, must have an annual leave of two months, owing to the tropical climate of Samoa.
- In the note of this embassy of September 11, 1893, written in
reply to the note above named, the following sentence is found:
The desire of Mr. Ide as regards his annual leave might, so far as it now appears, in the opinion of the Imperial Government, be complied with. He would be represented while absent, in pursuance of the final paragraph of section 2, Article III, of the Samoa act, by the president of the municipal council.
- Baron von Saurma supplemented this note of September 11 by another, dated September 15, 1893, in which he announced that the [Page 540] Government of Great Britain had agreed to the suggestion of the Imperial Government with regard to granting Mr. Ide’s leave.
- In reply to the two notes of this embassy of September 11 and 15, 1893, Hon. Alvey A. Adee, Acting Secretary of State, addressed two notes to Baron von Saurma under date of September 22, 1893. The longer of these notes contained for the most part remarks concerning the salary of Chief Justice Ide and other payments to that officer; in the shorter one the Acting Secretary of State expresses in direct terms at the close the gratification of the Department of State that the details relative to Mr. Ide’s leave have been arranged to the satisfaction of all the parties concerned. A third note from Mr. Alvey A. Adee, likewise dated September 22, 1893, simply acknowledges the receipt of a note from this embassy of September 16 relative to Mr. Schmidt’s appointment as president of the municipal council, and has no further connection with this case.
Your excellency will see from the foregoing, especially from the concluding sentence of the note of the Department of State of September 22, 1893, which acknowledged the receipt of this embassy’s note of September 15, that the United States Government in addressing my predecessor in office not only did not object to the chief justice’s being represented when on leave by the president of the municipal council, but that it expressly approved this arrangement and explicitly expressed its gratification at the understanding reached by the treaty powers in this matter. The Imperial Government was duly informed of this, and it is consequently now of opinion that it is not only in harmony with the Samoa act for the chief justice to be represented, when on leave, by the president of the municipal council, but that this arrangement has been approved by all the treaty powers.
If your excellency in your last note of May 8, 1896, abandons this standpoint (which has hitherto been approved by all parties) and takes the opposite one, you can not expect that I, as the representative of His Majesty the Emperor near the United States Government, shall adopt your view and make it the subject of a report to the Imperial Government. I am rather compelled most respectfully to leave it to your excellency to issue suitable instructions to the United States ambassador at Berlin if you wish your present view of the case, which is diametrically opposed to the understanding of 1893, to be brought to the notice of the Imperial Government.