16601.
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MY LORD,
No. 13A.
(WESTERN PACIFIC.)
LAW OFFICERS to FOREIGN OFFICE.
We were honoured with your Lordship's commands signified in Sir Philip
Royal Courts of Justice, July 11, 1892. Currie's letter of the 30th ultimo, stating that, in our Report of the 2nd May last, we advised upon a proposal of the German Government that the Powers parties to the Final Act of the Conference on Samoan Affairs should affirm by a Joint Declaration that a recent decision of the Samoan Land Commission upon the construction of section 8, Article IV. of that Convention was ultimate and final.
That a note was in due course addressed to the German Embassy in the terms approved in our Report, and that your Lordship had now received from Count Metternich the accompanying reply, from which we should perceive that the Ame- rican Government had put forward another proposal in the matter, which met with the approval of the German Government, and which the latter submitted for the con- currence of Her Majesty's Government.
That it was to the effect that identic instructions should be issued to the Consuls of the three Powers at Apia, directing them to inform the Chief Justice of Samoa that the Treaty Powers considered the above-mentioned decision of the Land Com- missioners to be correct.
That in view of the fact that the decision concerned a question which would shortly come before the Chief Justice in his judicial capacity, your Lordship presumed that Her Majesty's Government had no warrant for authorizing a formal communication of that kind to a high judicial functionary, who, in the discharge of his judicial duties, was independent of their control. to think that it might be practicable to bring the view of the Powers upon the point That your Lordship was, however, disposed privately and informally to the notice of the Chief Justice, if it should be considered that such a course was open to no objection. But that, before deciding as to what steps, if any, should be taken with that view, it was necessary that Her Majesty's Government should form an opinion as to whether the interpretation placed by the Land Commission upon the wording of section 8, Article IV. of the Final Act was in itself such as could be properly upheld.
That Sir Philip Currie was accordingly to request that we would take the papers into our consideration, and favour your Lordship with our opinion upon that point, as well as upon the proposition made to Her Majesty's Government in Count Metternich's note; and also with any other observations which we might be good enough to offer on the case generally.
In obedience to your Lordship's commands we have the honour to
Report
That we are not prepared to say that the decision of the Land Commission is correct. The words" without prejudice to the rights of third parties' be intended to preserve the rights of persons who claim to have been entitled to the appear to lands as against the vendors; the title of the vendor and the sufficiency of the price not being matters with which the Commission is entitled to deal in cases where the aale took place before the 28th August 1879.
We do not, however, think it necessary to express a decided opinion upon this question which will be considered by the Chief Justice.
In our opinion, the course proposed by the German Government is not one which Her Majesty's Government can properly be advised to adopt.
The Chief Justice is an independent Judicial Officer appointed under Treaty pro- visions, and we cannot suppose that he would allow himself to be influenced in the interpretation of that Treaty by the views of any Governments as to the policy of a particular construction.
We have, &c, (Signed)
RICHARD E. WEBSTER,
EDWARD CLARKE,
⚫ 70451-81. 25.-8/92.
RECORD UPPICE
C.O.885
Reference :-
14 PUBLIC RECORD OFFICE, LONDON
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