Papers Relating to the Foreign Relations of the United States, 1894

Memorandum.

German Legation,
Washington, April 29, 1892.

[To be considered as a verbal communication.]

According to reports received in Berlin from Apia, the Samoan land commission on the occasion of a conference to settle a dispute concerning a land question decided in a prejudicial manner with reference to the interpretation of Article iv, section 8, of the Berlin general act of the Samoan Conference, unanimously agreeing that the acquiring of land at the period of the English-Samoan treaty could not be disputed by denying the right of disposing of it on the part of the Samoan seller.

The Samoan act, in section 8, Article IV, decides as follows:

Section 8. All lands acquired before the 28th day of August, 1879, being the date of the Anglo-Samoan treaty, shall be held as validly acquired (but without prejudice to rights of third parties) if purchased from Samoans in good faith for a valuable consideration in a regular and customary manner. Any dispute as to the fact of regularity of such sale shall be examined and determined by the commission, subject to the revision and confirmation of the court.

The sentence in parenthesis contained in this decision, “but without prejudice to rights of third parties,” caused the native attorney to conclude therefrom that it was necessary to make an investigation of the question as to whether the Samoan seller had been the legal owner of the property which he had sold, and to assert, moreover, that the purchase should be considered illegal if the rights of a second Samoan had suffered in consequence of the sale made by a former one.

The commissioners decided that by the words “rights of third parties” such rights were not understood which a native Samoan affirmed to have acquired before the 28th of August, 1879, and that the words “in a regular and customary manner” do not require the proof of the Samoan seller’s right of disposal.

This decision appears to be of the utmost importance for the security of property in Samoa belonging to foreigners and conducive to facilitate the work of the commission. It is to be feared, however, that the native attorney and the lawyers living in Apia who in consequence of this decision foresee the loss of many law suits will spare no efforts to obtain a reversal of the decision by the supreme court.

As the Imperial Government, the Government of the United States, and the Government of Great Britain agree in desiring to facilitate as much as possible the work of the land commission and to free it from objections or anything else which could impede their progress, which wish was recently expressed by the agreement of instructions to be sent to Apia, the Imperial Government, moreover, now proposes to unite in appending a declaration to division 8 of Article iv of the Samoa act, by which the decision of the land commission would be definitively approved and ratified.

Department of State,
Office of Assistant Secretary,
Washington, May 11, 1892.

I agree with this construction of section 8 of Article iv. We have, however, received no suggestions from our own officers as to this matter. I think that rather than to append a declaration to section 8 of Article iv of the general act by which the decision of the land commission would be definitely approved and ratified, as is suggested in the communication of the German Government, it would be better for each of the treaty powers to instruct each of its consular representatives at Apia to inform the chief justice, who, under section 4 of Article iii of the general act, has the final decision of all questions arising under its provisions, that, in the opinion of his Government, the construction of section 8 of Article iv adopted by the land commission is the proper one. The chief justice would, under such circumstances, undoubtedly affirm the opinion of the land commission.

W. F. W. (William F. Wharton.)