Mr. Herbert to Mr.
Foster.
British
Legation,
Newport, R.
I., August 26,
1892.
Sir: In accordance with instructions which I
have received from my Government, I have the honor to inclose herewith
for your information copy of a verbal communication from the German
embassy in London, together with a copy of the reply which has been
returned to it, respecting a difference of opinion which has arisen as
to the appointment of the import and export duties in Samoa, leviable
under Article VI of the final act of the Berlin conference of 1889, and
at the same time to inquire whether the views of Her Majesty’s
Government as explained in this correspondence meet with your
concurrence.
If the treaty powers should be unanimously of opinion that they should
decline to accept the decision of the chief justice, it appears to be
desirable that some communication should be made to him to that
effect.
In the event of the U. S. Government sharing this opinion, Her Majesty’s
Government would be glad to be favored with their views as to the most
courteous and acceptable method of making such a communication to the
chief justice, and as to the terms in which it may most appropriately be
couched.
I have, etc.,
[Inclosure.]
Verbal communication.
The chief justice at Apia has recently decided that, according to the
provisions of the Samoa act, the revenues from import and export
duties received up to the present time for the municipality of Apia
are not to be paid to the municipality, but to the Samoan
Government. If this decision is carried into effect, the
municipality would lose the greater part of the revenues. The
decision of the chief justice has, therefore, caused in the
municipality a considerable agitation, which has found its way into
the European and Australian press. The Imperial German Government
are of opinion that the decision of the chief justice has been
issued without giving the municipality an opportunity to bring
forward their rights; it reverses a state of law existing as yet
with unanimous consent, and finally differs from the provisions of
Article II, Section III, of the Samoa act, respecting the
distribution of revenues. According to the opinion of the Imperial
Government, these provisions must undoubtedly be applied to revenues
from duties. It is to be added that the duties
[Page 544]
are chiefly raised from and borne by
residents of the municipality. If only for this reason, it would be
fair to grant these revenues to the municipality. This procedure is
the more recommendable as it warrants the useful and appropriate
expenditure of the revenues, which, in the present state of things,
can not be expected to the same extent, if they are delivered to the
Samoan Government.
The Imperial Government hope that Her Majesty’s Government agree with
the Imperial Government that the former state should be maintained,
according to which the revenues from duties belong to the
municipality. In this case it would be necessary to inform the
consuls of the unanimous opinion of the three Governments, and so
instruct them to direct the president of the municipality, in the
name of the treaty powers, to further receive the duties, for the
use of the municipality. At the same time, it would be necessary to
inform the chief justice hereof. The Imperial Government think that
it is without doubt that the treaty powers are not bound to the
decisions of the chief justice in questions affecting the
construction of the Samoa act. This view is expressly shared in the
provisions of Article III, section 4, of the Samoa act, according to
which decisions of the supreme court are only conclusive “upon all
residents of Samoa.”
[Inclosure.]
Lord Salisbury
to Count Hatzfeldt.
Foreign Office,
London, August 12,
1892.
Sir: With reference to my previous note of
to-day’s date, I have the honor to acknowledge the receipt of your
excellency’s note of the 20th ultimo, proposing that the three
treaty powers should make an identic communication to the president
of the municipal council of Apia in the sense of the views expressed
by Mr. Consul Cusack-Smith in his dispatch No. 14, of May 25
last.
In reply I have to state that Her Majesty’s Government concur
generally in Consul Cusack Smith’s recommendations. They can not go
so far as to say that the Samoan administration should make it their
first duty to protect and advance the interests of the foreign
settlers; they think that rather an equal and impartial
consideration should be given to the interests of both whites and
natives alike, but they quite recognize the importance of cordial
cooperation between the chief justice, the municipal president, and
the consular body, and of the adoption by the two former of a more
conciliatory attitude toward the foreign colony.
Her Majesty’s Government further agree that the resignation of Baron
von Pilsach should not be accepted.
I should be glad to learn how your Government propose that the views
of the three treaty powers should be conveyed to the chief justice
and to the municipal president.
I have, etc.,
[Inclosure.]
Lord Salisbury
to Count Hatzfeldt.
Foreign Office, August 12, 1892.
M. l’Ambassadeur: Her Majesty’s Government
have carefully considered, in communication with the law advisers of
the Crown, the verbal communication made by Count Metternich, on the
24th ultimo, explaining the views of the German Government on the
difference of opinion which has arisen as to the apportionment of
import and export duties in Samoa leviable under the provisions of
Article VI of the final act of the Berlin conference on the affairs
of Samoa.
The matter at issue appears to resolve itself into a question as to
the merits and validity of a decision given by the chief justice of
Samoa, on the 28th March last by which these duties were assigned to
the use of the Samoan Government. That decision is contested by the
municipal council of Apia, who lay claim to the dues, and have
formally appealed to the treaty powers for a determination of the
points in dispute; and, in the meanwhile, a temporary compromise has
been effected through the intervention of the consular board.
As matters at present stand, it seems clear that if the Samoan
Government axe deprived of the duties they will be practically
bankrupt and unable to carry on the
[Page 545]
administration, since it appears to be
generally admitted that the capitation tax can not be collected;
whilst, on the other hand, the municipality will be reduced to the
same position if the duties are withdrawn from them.
The German Government state that, in their opinion, the decision of
the chief justice should not be maintained; and they express a hope
that Her Majesty’s Government will concur in this view; in which
event they propose that the three treaty powers should overrule the
decision in question, and instruct their consuls to direct the
municipal president to receive and apply the import and export
duties on account of the municipality.
Her Majesty’s Government are advised that the decision of the chief
justice is not in accordance with the provision of the final
act.
If the two parties—i. e., the municipal council and and the
representatives of the Government—had submitted the question to the
decision of the chief justice under section 4 of Article III, it
would in the opinion of Her Majesty’s Government have been within
his competence to adjudicate upon it and his decision would have
been binding upon all parties; but in their judgment, having regard
to what had taken place under the final act and the system of
administration actually in force thereunder, it was not competent to
the chief justice to make, as he did in this case a declaration as
to the rights of the parties under section 3 of Article VI of the
final act, upon an informal reference, and without the matter being
properly argued before him.
In the opinion of Her Majesty’s Government, the view taken by the
German Government is correct, and assuming the treaty powers to be
unanimous they may under the circumstances decline to accept the
decision of the chief justice; but in the event of there being any
difference of opinion between them and Samoa, and of the question
being referred to the chief justice under section 7 of Article III,
his decision, whatever it might be upon such a reference, would
apparently be binding upon all the powers.
As respects the actual merit of the decision itself apart from its
informality, Her Majesty’s Government are advised that the language
of section 3 of the final act is ambiguous, and that it would be
well that a clear and explicit distribution of the duties, taxes,
and charges between the Samoan Government and the municipality of
Apia should be made.
Her Majesty’s Government are not without hope that the contending
parties may still be able to arrive at a common understanding upon
this point which shall be alike satisfactory to themselves and to
the treaty powers.
I have, etc.,
