Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1896, and the Annual Report of the Secretary of State

Mr. Olney to Sir Julian Pauncefote.

Department of State,
Washington, January 16, 1897.

No. 581.]

Excellency: I have the honor to acknowledge the receipt of your note of the 30th ultimo, inclosing a copy of the ordinance passed by the municipal council at Apia, with regard to the arrest and imprisonment of men-of-war’s men.

The proposed ordinance is to provide the manner in which members of crews of war vessels offending against municipal ordinances and regulations shall be dealt with, and its object and purport are to place the offending sailor in the custody of the commander of his ship, who shall punish all minor infractions of the municipal regulations as he shall see fit.

I observe that the honorable commissioners of the admiralty who have had under consideration Mr. T. B. Cusack-Smith’s dispatch, have expressed their concurrence with the views taken by the consuls regarding this ordinance. It appears that the consular board at its meeting on September 19, 1895, made the following note:

Consideration was deferred in order that the consuls might refer the question to the powers. Meanwhile the consuls unanimously request that in case of an arrest of a man-of-war’s man the president of the municipal council will at once notify the captain of the man-of-war concerned and inform him that if he sends the necessary guard the prisoner will be handed over.

It is understood that the municipal council accorded this action.

I gather from the statement of Her Majesty’s consul at Apia that the ordinance, which for brevity is to be known as “the men-of-war’s men offenders ordinance,” has been proposed, owing to several cases in former years of arrests oh shore of German men-of-war’s men, which occasioned considerable friction, “but more particularly,” says Mr. Cusack-Smith, “owing to a recent instance, in which the president of the municipal council and the German consul obtained the release of the sailors from the custody of the municipal police.”

At this point it seems proper to add that Mr. Churchill, the consul-general of this Government to Samoa, in his dispatch No. 21 of September 29, 1896, presented the whole of this subject to the Department substantially as reported in Mr. Cusack-Smith’s dispatch, but more in detail, and mentioned besides the case of the two sailors belonging to the German war ship Falk, who were arrested by the police at Matafele, charged with being drunk and disorderly on the streets and with willfully damaging private property, and who were subsequently released by direction of the German consul, who stated that he would assume all responsibility.

I inclose a copy of the Department’s instructions to Mr. Churchill, No. 37 of December 21, 1896, which discloses the views of this Government upon the subject. A copy of this instruction was sent to Mr. Bayard at London and to Mr. Uhl at Berlin, on December 23, 1896.

After reciting the arrest of the two sailors and their subsequent release by direction of the German consul, contrary to any provision of law to that end, I remarked that as early as January, 1895, it also appeared that the president of the municipal council at Apia instructed the chief of police that, in case any sailors from the German warships were arrested by the police, they were to be released on bail upon a watch being sent ashore for them.

As I was unable to find any warrant of law for the action of the German consul or the order of the president of the municipal council, I felt constrained to instruct our ambassadors at London and Berlin to make proper representations upon the subject to the Governments to which they were respectively accredited, and to suggest the propriety of adopting the necessary means to prevent a recurrence of such arbitrary and unlawful acts in the future.

So far as concerns the adoption of the proposed ordinance—copy of which was submitted to Mr. Churchill as well as to Mr. Cusack-Smith, and is transmitted with your note—the Department held that “it should abstain from expressing any opinion upon the subject.”

The concluding portion of Mr. Rockhill’s dispatch to Mr. Churchill on this particular feature of the situation may, with equal force and propriety, be literally transcribed as a part of my reply. He said:

It has been clearly shown that the municipal council has exclusive jurisdiction within the municipal district of Apia, and that it is charged with the duty of making, by and with the advice and approval of the consular body and the chief justice, in case of disagreement, as well as enforcing all laws, ordinances, and regulations that are applicable to the said district. In this aspect of the case, it would be manifestly improper to indicate the course you should follow when the measure comes up anew. The municipal council and the consular board, who are presumably the best informed as to the actual situation and the necessity for any change in that respect, must, therefore, be the best judges of what they think desirable and proper to promote the interest or maintain peace within the municipal jurisdiction.

In saying this, it must not be thought that the Department lacks interest on the subject, or does not wish to see peace and harmony prevail and all irritating differences disappear. But it realizes that ample provision is made for all such questions under the general act itself, and it believes that the best interests of all concerned are more easily advanced by withholding advice in such case than by any intimation from either Government as to the course to be pursued in a given instance. Our desire is to see the administration of justice impartially performed, without fear or favor in any direction. It must be equally assumed that both Germany and Great Britain are animated by a like desire, and that, consequently, they too will refrain from any suggestions that might bias or influence the action of their consular representatives or of the municipal council in dealing with such questions.

With these general observations the Department commits the subject to your judgment and discretion. It would appear from your presence on the spot and your familiarity with all the phases of the situation that you should be the best judge in all such matters, unless it should clearly appear that the measure was primarily one for the conjoint decision of the three Governments, parties to the Berlin general act.

I realize the peculiar circumstances that surround the situation in Samoa and have no desire to be considered as standing in the way of needed reforms or ordinances that have for their object the betterment of the conditions there or the procuration of peace and concord. Mr. Churchill, in submitting the facts, thought it unnecessary to pass an opinion on them, except to view with alarm any arrangement permitting the landing on neutral territory of the Apia municipality of any armed force under any pretext whatever.

Even Mr. Cusack-Smith remarks that the consuls unanimously dislike the cumbersome provisions of the proposed ordinance, and that in announcing to the municipal council that they deferred consideration thereof until it could be submitted to the treaty powers, they made the tentative suggestion previously mentioned. Mr. Cusack-Smith goes so far as to say that within his recollection only two cases have occurred during the past seven years in which sailors from British men-of-war have been arrested on shore by the municipal police. In these cases no friction occurred. The men were tried, fined, or acquitted by the municipal magistrate.

Mr. Churchill makes no complaint that the municipal ordinances are insufficient to meet the ordinary offenses triable by the local magistrates appointed for that purpose by the municipal council. On the contrary, it would appear that whatever friction may have arisen was due to the illegal and unauthorized conduct of the German consul and the municipal president in causing the release of the two sailors who had been arrested, in the one instance, and in issuing an order that German sailors arrested by the municipal police should be immediately turned over to their companions upon a watch being sent ashore for them, in the other.

Friction can readily be avoided if the Berlin general act is carried out in spirit and letter. The desire of this Government is that it shall be. But it is an easy matter to trespass upon dangerous ground, as well as to weaken the local influence, if almost at every step some action is taken not authorized by the general act or contemplated by the ordinances and regulations made in accordance therewith.

I am at a loss to comprehend why the proposed ordinance should be enacted into a law. It is not alleged that the existing regulations and ordinances are insufficient to maintain or preserve the peace. Moreover, friction would perhaps be more liable to follow the carrying out the provisions of the ordinance should it become a law than it would did the offenders know that they would be tried by the local magistrates. If they once realize that, although they may be arrested by the municipal police, they can not be tried by the local authorities, they will have less fear of the consequences and a greater disregard for the ordinances and regulations; whereas the police, on the contrary, might feel less incentive in the performance of their duties. I can perceive no good reason, even taking into account the peculiar circumstances at Apia, why an offending British or German sailor belonging to a vessel of war of either country should not be tried and punished for a breach of the peace there, by the duly constituted municipal magistrates, as well as in the United States for a similar offense, unless a treaty provision should otherwise provide. And upon this particular point the Berlin general act, although making what may be regarded as ample provision for the due and proper trial and punishment of all offenders, is silent.

It should be the aim of the three Governments to strengthen the municipal council in the performance of the duties assigned to it by the Berlin general act and to uphold the authority of its officers appointed to maintain and promote peace. In this view of the case, I may assure you of the aid and support of the Government of the United States so long as it remains party to that engagement. But I can not, as at present advised, agree to instruct the president of the municipal council at Apia to notify the commander of the vessel of war whose sailor has been arrested that the prisoner will be delivered into his authority upon sending a guard ashore for that purpose.

In obedience to the wish of Lord Salisbury to learn the views of this Government concerning the proposed “men-of-war’s men offenders’ ordinance,” I have endeavored to set them forth somewhat in detail, notwithstanding they may be supplementary to those I have instructed the United States ambassador at London to present, and which I presume have already been laid before his lordship.

I have, etc.,

Richard Olney.

[Inclosure in No. 581.]

Mr. Rockhill to Mr. Churchill.

Department of State,
Washington, December 21, 1895.

No. 37.]

Sir: I have received your dispatch No. 21, of September 29, 1896. It presents the case of two sailors belonging to the German war ship Falke who were arrested by the police at Matafele, charged with being drunk and disorderly in the street and with willfully damaging private property, and who were subsequently released by direction of the German consul, who stated that he would assume all responsibility in the premises. Against this assumption of authority Mr. William Cooper, a municipal magistrate, strongly objects in letters to the municipal council, makes some pertinent comments, and cites the case of a German sailor from the Sperber who had been arrested for dangerous riding. In that case the municipal council sustained the magistrate, and in fact adopted a resolution to the effect that the sergeant of police be instructed that it is his duty not to release any prisoner who is in custody for breach of the municipal regulations unless bail shall have been allowed by the magistrate.

In the discussion that ensued because of the failure of the municipal council to sustain the action of Mr. Cooper, and because the consular board did not unanimously approve the resolution of the municipal council to lay the matter on the table, it was referred to the chief justice, who proposed to the council the drafting of an ordinance covering the question. You inclose such an ordinance whose title is “An ordinance to provide the manner in which members of crews of ships of war offending against municipal ordinances and regulations shall be dealt with,” and ask for instructions that will enable you to act in concert with your British and German colleagues when the subject arises anew after such reference.

The purport and effect of the proposed ordinance is to place the offending sailor completely under the control of the commander of the ship to which he is to be delivered.

The meeting of the consular board of September 19 last deferred action on this ordinance until it could be referred to the powers. Meanwhile it was unanimously agreed to request that, in case of the arrest of sailors belonging to a man-of-war, the president of the municipal council would promptly notify the commander of the vessel to which such sailor belonged and say that if the necessary guard were sent ashore the prisoner would be handed over to it.

The municipal council, it appears, assented to this action. Meanwhile, during the pendency of the discussion of these matters, the German war vessel in the harbor landed a file of armed sailors “to perform the function of provost-marshal’s guard.” It seems they were landed with the consent of the president of the municipality, but without that of the consular board, which was not, in fact, consulted in the premises.

Concerning the landing of this guard, it seems only necessary to say that, while the incident is an independent matter, not directly pertinent to the present consideration, no warrant for their landing appears either in the general act or in the municipal enactments thereunder, so far as the Department is advised.

It is not altogether clear from your statement that the offense committed by the sailors of the German war ship was “an infraction of any law, ordinance, or regulation passed by the municipal council.” The inference from the very essence of the subject, coupled with the authority conferred upon the municipal council to make all such laws and ordinances to promote the public interests and maintain peace and security within the municipal district, is that such an ordinance existed and that the offense of the sailors constituted a breach thereof. You do not, however, indicate it specifically.

Therefore your submission of the proposed ordinance directing how offenders on shore from ships of war shall be treated is open to either of two interpretations: First, that no such ordinance exists, or, second, that instead of making foreign national seamen amenable thereto, it was thought best to supersede (although this is not stated unless inferable from section 5) the existing regulation by providing that all such offenders, instead of being tried by municipal magistrates as the duly appointed administrators of the peace of the municipality, shall be immediately handed over to the consul of the nation to which the vessel belongs, or, failing this, to the commander thereof, to be dealt with as he may elect.

I am inclined to the view, however, because of the plenary power of the municipal council to pass such regulations, and of the necessity that everywhere exists for such laws to deal with offenses of which the sailors were accused, that there was such an ordinance and that it was being violated.

Therefore in treating your dispatch with the consideration its importance demands, it is necessary to examine certain of the provisions of the general act providing for the neutrality and autonomous government of the Samoan Islands concluded June 14, 1889.

Section 3 of the act, respecting the municipal district of Apia, expressly provides that the municipal council shall have jurisdiction over the municipal district of Apia, so far as necessary to enforce therein the provisions of the general act which are applicable to the district, including the appointment of a municipal magistrate and of the necessary subordinate officers of justice and of administration therein. Among other things, it is to provide for the security in the district of person and property; proper fines and penalties for the violation of the laws and ordinances which shall be in force in the district and not in conflict with the act, including sanitary and police regulations.

The same article stipulates that—

all ordinances, resolutions, and regulations passed by the municipal council, before becoming laws, shall be referred to the consular representatives of the three treaty powers, sitting conjointly as a consular board, who shall either approve and return such regulations or suggest such amendments as may be unanimously deemed necessary by them.

Should the consular board not unanimously approve the regulations referred to them, or the amendments recommended by them be not accepted by a majority of the municipal council, then the regulations in question shall be referred for modification and final approval to the chief justice of Samoa.

The effect of this provision is to give the municipal council supreme authority over all such measures when they are enacted into positive law. This view is further strengthened by section 4 of article 5, which states that the municipal magistrates, who, with subordinate officers of justice and of administration therein, are appointed by the municipal council, shall have exclusive jurisdiction in the first instance over all persons, irrespective of nationality, in case of infraction of any law, ordinance, or regulation passed by the municipal council, in accordance with the provisions of the general act, except when the penalty exceeds a fine of $200 or imprisonment of more than 180 days.

The release of the two sailors under consideration was, in the present instance, effected by direction of the German consul, but it is further alleged that the president of the municipal council had as early as January last instructed the chief of police that if any sailors from the German war ships were arrested by the police they were to be released on bail upon a watch being sent ashore for them.

It is not to be denied that the German consul exceeded his authority in respect of these two sailors, and unless an ordinance upon the subject shall be passed conferring upon him the necessary authority, it is presumed that he will abstain from any such arbitrary power in the future, and permit the civil authorities to deal with all such acts according to the law and regulations.

Although the president of the municipal council shall, as the chief executive officer, be in charge of the administration of the laws and ordinances applicable to the municipal district of Apia, he is at present nowhere advised, authorized, or empowered to order the release or discharge of a person who has been legally placed in custody charged with an offense triable by a municipal magistrate. It is rather the duty of such president to see that the laws are properly executed. Under no circumstances should he arbitrarily override the municipal regulations, set them at naught, or assume functions clearly not within his province. Such acts, besides being illegal, tend unnecessarily to create ill feeling, discord, strife, and dissatisfaction; whereas the letter and spirit of the general act is to conciliate all differences and restore peace and harmony. The chief aim of the three Governments concerned, no less than the object of the officers appointed to carry out its provisions, should be to administer the laws impartially and compose all differences in the interest of order and good government, and with a due respect for the laws, ordinances, and regulations.

Touching the conduct of Mr. von Schmidt in the present instance, the municipal magistrate pertinently observes that “if the responsible head of the municipal administration himself sets the laws and ordinances at defiance it can not be expected that other persons will pay much respect to them.”

This is self-evident.

I propose, therefore, to give a copy of your dispatch and of my reply to the United States ambassadors at London and Berlin for communication to the Governments of Great Britain and Germany. I shall advert to the reported conduct of both the German consul and of President Schmidt, and express the hope that some means may be devised whereby a recurrence of such arbitrary and unlawful acts may be prevented in the future.

So far as concerns the adoption of the proposed measure to be known as “the men-of-war men offenders ordinance,” this Department holds that it should abstain from expressing any opinion upon the subject.

It has been clearly shown that the municipal council has exclusive jurisdiction within the municipal district of Apia, and that it is charged with the duty of making, by and with the advice and approval of the consular body, and the chief justice, in case of disagreement, as well as enforcing, all laws, ordinances, and regulations that are applicable to the said district. In this aspect of the case, it would be manifestly improper to indicate the course you should follow when the measure comes up anew. The municipal council and the consular board, who are presumably the best informed as to the actual situation and the necessity for any change in that respect, must therefore be the best judge of what they think desirable and proper to promote the interest or maintain the peace within the municipal jurisdiction.

In saying this, it must not be thought that the Department lacks interest on the subject, or does not wish to see peace and harmony prevail and all irritating differences disappear. But it realizes that ample provision is made for all such questions under the general act itself, and it believes that the best interests of all concerned are more easily advanced by withholding advice in such case than by any intimation from either Government as to the course to be pursued in a given instance. Our desire is to see the administration of justice impartially performed, without fear or favor in any direction. It must be equally assumed that both Germany and Great Britain are animated by a like desire, and that, consequently, they too will refrain from any suggestions that might bias or influence the action of their consular representatives or of the municipal council in dealing with such questions.

With these general observations, the Department commits the subject to your judgment and discretion. It would appear from your presence on the spot and your familiarity with all phases of the situation, that you should be the best judge in all such matters, unless it should clearly appear that the measure was one primarily for the conjoint decision of the three Governments, parties to the Berlin general act.

I am, etc.,

W. W. Rockhill,
Assistant Secretary.