Mr. Olney to Baron von Thielmann.

No. 160.]

Excellency: I have the honor to acknowledge the receipt of your note of the 13th instant, in relation to the temporary discharge of the duties of the chief justice of Samoa by the president of the municipal council at Apia during the temporary absence of the former.

I have, in view of your citations from the Department’s previous correspondence, caused an examination thereof to be made, with a view to determine the correctness of your statement that the Government of the United States “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.”

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I have been unable to find any warrant for the conclusions you adduce. It is true that Baron von Saurma’s note of September 11, 1893, contains the statement that, in the opinion of the German Government, according to the final paragraph of section 2, Article III, of the Samoan act of June 14, 1889, the duties of the chief justice may be temporarily performed by the president of the municipal council. It is equally true that the Department’s reply of September 22, 1893, did not disavow that statement. As a matter of fact, it neither affirmed nor denied it, although the note was a long one and treated of the many matters touching Samoan affairs, presented at length by your predecessor. Under these circumstances the assent of this Department can not reasonably be implied, although, through inadvertence, no specific reply was made to that particular proposition.

I find these words in Mr. Adee’s note, also of September 22, 1893: “It is gratifying to the Department that these details have been so satisfactorily arranged.” They have distinct reference to Mr. Ide’s leave of absence and the willingness of the British Government to assume its pro rata share of the traveling expenses of Mr. Ide and family, as well as the traveling expenses of Mr. Schmidt, which had been previously agreed upon.

It must be attributed to an oversight merely that the Department failed to notice the same statement made in Baron von Saurma’s later note of April 15, 1895, viz, that Mr. Schmidt was eligible under the Samoan act to perform the duties of chief justice during the latter’s temporary absence. I can not assume that this was done intentionally, nor can I agree with you that the cited paragraph of the Samoan act is susceptible of the interpretation which your Government placed upon it. Be this as it may, however, the fact remains that upon the subject arising during my incumbency of the office of Secretary of State it was promptly and specifically disavowed. The language of the treaty is too plain to admit of argument or any other construction than that given to it in my note of the 9th instant, viz, that the vacancy contemplated is one that exists by reason of the death, resignation, or removal of the chief justice from office. In a word, when a vacancy occurs that needs to be filled by a new appointment, and not otherwise.

In conclusion, I may observe with perfect deference, in view of your declination to report the matter to your Government as I courteously asked, that the correspondence upon this subject has taken place with His Majesty’s embassy at this capital, and not through the diplomatic representative of this Government at Berlin.

I have, however, filed with you the protest of this Government against the action proposed by Mr. Schmidt, and until some overt act on his part is reported to the Department, showing that he contemplates discharging the duties of chief justice during the latter’s temporary absence, I am perfectly willing to permit the subject to rest as at present.

Accept, etc.,

Richard Olney.