Mr. Fosterto Mr. von Holleben.
Washington, November 22, 1892.
Sir: Baron von Ketteler’s memorandum of July 14 last, expressing the views of the Imperial Government upon the difference of opinion which has arisen as to the apportionment of the import and export duties in Samoa, has had my careful consideration. On the 2d instant I also received from the British chargé a copy of Lord Salisbury’s note of August 12 to Count Hatzfeldt, expressing the views of the British Government upon the same subject.
Section 4 of Article iii of the Berlin general act provides that the supreme court of Samoa shall have jurisdiction of all questions arising under its provisions. But its competence to render a decision with respect thereto is believed to be limited to suits or references regularly before it in accordance with the specific provisions of the act. As a court it is bound to proceed in accordance with usual judicial procedure. Otherwise parties in interest would receive no hearing, and matters [Page 663] of the gravest importance, as in this instance, might be finally settled in proceedings entirely ex parte. This Government, therefore, is disposed to agree with the Imperial Government and with the Government of Great Britain that the opinion of the chief justice of Samoa with respect to the revenues, given March 28 last, was not rendered in the line of the duty of the court or in accordance with the terms of the treaty; and that, being extrajudicial, it ought to be treated as a nullity. The Government of the United States will be pleased to join in any concurrent communication of this view to the chief justice or other officials of Samoa, as may be deemed most expedient.
As regards the correct interpretation of section 3 of Article vi, of the treaty, it must be admitted that its language is ambiguous and that it is not free from doubt whether the import and export duties belong by its terms exclusively to the Samoan Government in accordance with the chief justice’s latest opinion or exclusively to the municipality in accordance with his earlier opinion, or partly to each. Practically, however, this Government is impressed with the belief that there ought to be some fair division of the revenue between the Government and the municipality, and that its exclusive assignment to either would be essentially unjust to the other. If the terms of the treaty should be finally held to require the latter, then in the opinion of this Government the treaty ought to be amended in that regard. But I join in the hope expressed by the Government of Great Britain 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.”
Accept, etc.,