Mr. Olney to Baron von Thielmann.

No. 151.]

Excellency: I have the honor to state that, as I learn by a dispatch from the vice-consul-general of the United States at Apia, No. 112, of March 24, 1890, Mr. Henry C. Ide, chief justice of Samoa, had left on the 23d of that month by the steamer Monowai for Sydney for a vacation of five weeks.

It was Mr. Ide’s intention to leave four weeks previous to that date, but owing to a number of German land claims remaining unsettled and the pressure of the German company for their grants, coupled with the avowed intention of Mr. Schmidt, president of the municipal council, to try cases in Mr. Ide’s absence, the consuls of the three Governments requested him to postpone his departure until March 23d last, which he accordingly did.

Mr. Schmidt’s expressed intention to discharge the duties of chief justice, and especially to try these cases during the temporary absence of Mr. Ide on leave, suggests the probability of his having arrived at his conclusion in this respect in virtue of the statements of your immediate predecessor in his note of April 15, 1895, relative to the memorial of King Malietoa, complaining of the official conduct of President Schmidt.

Referring to these complaints Baron von Saurma, in expressing the opinion of the Imperial Government, remarks that “some of them appear to be absolutely unfounded, as, for instance, the complaint that the president of the municipal council represented the chief justice in the absence of the latter, which is in accordance with the provisions of Article III, section 2, of the Samoan act.”

I am unable to accept this interpretation of that act which expressly declares that—

The powers of the chief justice, in case of a vacancy of that office from any cause, shall be exercised by the president of the municipal council until a successor shall be duly appointed and qualified.

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This language is to my mind perfectly clear and unambiguous. The “vacancy” contemplated hereby is one that exists by reason of the death, resignation, or removal of the chief justice from office, whereupon a successor is to be appointed and qualified. The intent and meaning of the paragraph quoted negative any other conclusion when taken in connection with the final clause, “until a successor shall be duly appointed and qualified.” Hence, the temporary absence of the chief justice for the purpose of taking a much-needed and well-earned rest does not constitute a vacancy within the spirit or the meaning of the act.

Accordingly, I am at a loss to comprehend upon what pretext or by what authority President Schmidt assumes to perform the functions of chief justice of Samoa during the temporary absence of Mr. Ide. Any such assumption is, as I have conclusively demonstrated, in disregard of both the letter and spirit of the Berlin general act of June 14, 1889.

I sincerely trust therefore that it will be your pleasure to make known these views to the Imperial Government with the request that instructions may be promptly issued to the German consul at Apia to represent, in conjunction with his colleagues of Great Britain and the United States, to Mr. Schmidt that, as president of the municipal council, he is not authorized or empowered to discharge the duties of chief justice of Samoa, except in the express contingency provided by the Berlin general act.

I shall give the British ambassador a copy of this note and request that Her Majesty’s Government issue to the British consul at Apia instructions in consonance with those asked of His Majesty’s Government.

I shall also inclose a copy thereof to Mr. Blacklock for his information and guidance.

Accept, etc.,

Richard Olney.