Mr. Gresham to Baron Gresham.
Washington , April 25, 1895.
Excellency: I have the honor to acknowledge your notes of June 1, June 15, and July 9, 1894, March 13, 1895, and a memorandum of September 8, 1894, all having reference to an increase in the salary of the natives’ advocate in Samoa. The president of the municipal council refused to pay the salary as increased, and the chief justice decided, in a suit brought by the advocate against the president, that the refusal was unauthorized.
You at first suggested that the consular representatives be instructed by their respective Governments to sustain, against the decision of the chief justice, the position of the municipal president that disbursements of money for the Samoan Government should be subject to his approval. Having subsequently ascertained that the British Government was unwilling to disregard the decision of the chief justice, you suggested that the respective consular representatives be instructed “to urge economy upon the Samoan Government, and to demand that all expenditures be made only with the advice of the president of the municipal council.” Still later, the chief justice having announced his willingness to recede from his position should the opinion of the treaty powers be opposed to it, you proposed, “in compliance with Lord Kimberley’s suggestion,” cooperation of the powers “through joint presentation of the case by the consuls in the effort to cause the municipal president’s right to control the Samoan finances to be recognized at least in the future by the chief justice.”
The general purpose as expressed in your note of March 13 is “a recognition of the right of control of the Samoan revenues by the president of the municipality.” The assertion of that right raises the question of the powers conferred by the Berlin act on the Samoan Government, the president of the municipal council, and the chief justice, respectively.
By Article I “the three powers recognize the independence of the Samoan Government.” This general recognition is, however, subject to numerous limitations subsequently expressed; it is supplemented by several provisions conferring particular powers on the native Government. The treaty provides that “the Chief Executive of Samoa” (the King), “with the approval of the chief justice,” may appoint the “natives advocate” to assist the land commissioners, and that “the compensation of the natives’ advocate shall be fixed and paid by the Samoan Government.” The scheme of taxation provided by the act is “without prejudice to the native Government to levy and collect other taxes in its discretion upon the natives of the island and their property.” Certain specified revenues “shall be for the use, and paid out upon the order, of the Samoan Government”—manifestly meaning the native Government.
The municipal president “may act under the joint instruction of the three powers, but shall receive no separate instruction from either;” and he “may advise the Samoan Government when occasion requires,” but he is nowhere authorized to coerce it. He is the “receiver and custodian of the revenues,” and is required to “render quarterly reports of his receipts and disbursements to the King and to the municipal council.” Disbursements are to be made by him as provided by section 3, Article VI, which is as follows:
Of the revenues paid into the treasury, the proceeds of the Samoan capitation tax, of the license taxes paid by native Samoans, and of all other taxes which may be [Page 1137] collected without the municipal district, shall be for the use, and paid out upon the order, of the Samoan Government. The proceeds of the other taxes, which are collected in the municipal district exclusively, shall be held for the use, and paid out upon the order, of the municipal council to meet the expenses of the municipal administration, as provided by this act.
I fail to find anything in the act giving the municipal president a general discretion in the disbursement of the revenues. He must always reserve of the Samoan Government’s funds enough to pay the salary of the chief justice, which by section 2, Article III, is made a first charge thereon; but having done this, it is neither his duty nor his right to decide finally questions as to the lawfulness of payments which he may be ordered by the Samoan Government and the municipal council, respectively, to make.
Section 4, Article III, provides that “the supreme court shall have jurisdiction of all questions arising under the provisions of this general act; and the decision or order of the court thereon shall be conclusive upon all residents of Samoa.” Section 1 provides that the decisions of the chief justice “upon questions within his jurisdiction shall be final.”
Subject to prior payment of the chief justice’s salary, the Samoan Government may order the disbursement of revenues collected for its use for such lawful purposes as it may see fit. I say “lawful” because the implication is plain that disbursements can only be made for proper governmental purposes. If the municipal president, as custodian of the revenues, deems a disbursement ordered by the Samoan Government to be for an unlawful or unauthorized purpose, he may properly withhold payment until the question can be decided by the chief justice, whose decision is final and conclusive.
In the opinion of this Government, the chief justice and the president of the municipal council should exercise the authority conferred upon them by the act. Certainly they should not exercise powers forbidden them by the act.
While this Government sympathizes with the general purpose of preventing the native Government from squandering its revenues, it can not consistently consent that the president of the municipal council shall exercise arbitrary control over the revenues of which he is only custodian.