CO885-(13-15) — Page 285

PUBLIC RECORD OFFICE

Reference :-

C.O.885

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

2

That before communicating with those Governments it was necessary that Her Majesty's Government should determine whether or not the Chief Justice's decision in the matter was correct and should be upheld.

That Sir Philip Currie was accordingly to request that we would favour your Lord- ship with our opinion on the following points:—

1. Was it within the competence of the Chief Justice, under the provisions of the General Samoan Act, to decide the questions in dispute?

2. If so, was the decision itself such as, on the merits of the case, and according to the tenour and meaning of the Act, should be upheld?

3. Were there any proper grounds for contesting its validity, owing to its having been delivered not in open Court, but on the application of the Adviser to the King and President of the Municipal Council, and without reference to the Municipal Council itself?

That your Lordship would also be glad to receive any general observations we might have to offer on the whole case.

We were also honoured with a further letter from Sir Philip Currie, dated the 28th June, stating that, with reference to his letter of the 10th ultimo, he was directed by your Lordship to transmit to us a Memorandum of a verbal communication from the German Chargé d'Affaires, explaining the views of his Government in regard to the difference of opinion which had arisen as to the proper destination of the import and export duties in Samoa leviable under the provisions of Article VI. of the Samoan Final Act.

That it would be seen that the opinion of the German Government was adverse to the decision of the Chief Justice, that they expressed a hope that Her Majesty's Government would concur in their view, and that, in that event, they proposed that the three Treaty Powers should overrule the decision of the Chief Justice, and instruct their Consuls to direct the Municipal President to receive and apply the import and export duties on account of the Municipality.

That Sir Philip Currie was also to inclose a despatch from Her Majesty's Consul at Apia, inclosing copies of correspondence between the President of the Muncipality and the Consular Board, from which it would appear that the statement of the Legal Advisers of the Municipality, inclosed in Mr. Consul Cusack-Smith's despatch No. 13 of the 26th April, was not submitted to the President, as it should have been, before being handed to the Consuls.

That the existence of that informality, however, would probably not prevent us from coming to a conclusion as to the merits of the case.

papers transmitted

That Sir Philip Currie was to request that we would take the with his letter of the 28th June into our consideration, in connection with those already submitted to us, and that we would favour your Lordship with our opinion as to whether the view taken by the German Government of the matters in dispute was sound, and was one which Her Majesty's Government could properly support, and more especially whether, in the event of there being a concurrence of opinion among the Treaty Powers that the decision of the Chief Justice was incorrect and could not be upheld, the contention of the German Government that the Treaty Powers were not bound by the decision of the Chief Justice in questions of the construction of the Samoan Act was borne out by the terms of that Act.

"

We have taken all the papers into our consideration, and, in obedience to your Lordship's commands, have the honour to

Report-

That in our opinion the decision of the Chief Justice is not in accordance with the provisions of the Final Act.

If the two parties, ie., the Municipal Council and the representatives of the Government had submitted the question to the decision of the Chief Justice under section 4 of Article III. it would, in our opinion, have been within his competence to adjudicate upon it, and his decision would have been binding upon all parties; but, in our judgment, having regard to what had taken place under the Final Act, and the system of administration actually in force thereunder, it was not competent to the Chief Justice to make, as he did in this case, a declaration as to the rights of the parties under section 3 of Article VI. of the Final Act upon an informal reference and without the matter being properly argued before him.

3

In our opinion the view taken by the German Government is correct, and, assuming the Treaty Powers to be unanimous, they may, under the circumstances, decline to accept the decision of the Chief Justice; but, in the event of there being any difference of opinion between them and Samoa, and the question being referred to the Chief Justice under section 7 of Article III., his decision would be binding.

We desire to add that we think the language of section 3 of Article VI. of the Final Act is ambiguous, and it would be well that a clear and explicit distribution of the duties, taxes, and charges between the Samoan Government and the Municipality of Apia should be made.

We have, &c. (Signed)

The Most Hon. The Marquis of Salisbury, &c.

&c.

&c.

List of Papers.

(A.) Fiual Act of the Conference on the Affairs of Samoa.

1890.")

(B.) Baron Senfft von Pilssch

(C.) Ditto

(D.) Consul Cusack-Smith (E.) Baron Senfft von Pilsach (F.) Consul Cusack-Smith

(G.) Note Verbale from Count Metternich

RICHARD E. WEBSTER. EDWARD CLARKE.

(Parliamentary: Samos No. 2,

February 29, 1892. March 30,

-

(No. 13) April 26,

April (No. 16) May June

"

25, 25, 22 21.

H

"