of three foreigners and two natives, foreign interests would be protected, but this would not follow, because the foreigners had never kept together.

Mr. Bayard observed that perhaps that was right.

Mr. von Alvensleben said his Government, at any rate, felt the greatest sympathy for the Samoans, and meant to help them in a sincere way.

Mr. Bayard said he felt that he could not perform a more benevolent service to the people of Samoa than by having the land titles in the kingdom overhauled.

Mr. von Alvensleben said his Government was of the same opinion, and he read, in illustration, from the memorandum on land disputes submitted at the second conference, the following:

"This sort of dispute is to be withdrawn from the cognizance of the consuls and from the jurisdiction of the English high commissioner respectively; it is consonant to the general principles of justice that disputes relating to real estate should be decided by the laws and courts of the country in which the object of the dispute is situated. In the present case, however, it must be further taken into consideration that, in the absence of any sort of legal provision as to the conditions, requirements, and formalities necessary for the valid transfer of land, and in consequence of the utter complication existing in the ownership, irregularities and it may be acts of injustice have occurred, which absolutely demand an impartial decision based upon a thorough examination and investigation of the matter.

"Such disputes are to be settled in a uniform procedure and according to uniform principles to be previously laid down by the treaty powers with the agreement of the Samoan Government, by an authority to be specially instituted, and in the last instance by a land court to be specially created. For this purpose it would seem advisable, after establishing the general principles on which the decisions as to the validity of land transfers are to be based, first to appoint a commission composed of three members, each of the three treaty powers naming one. Before this commission all claims which are raised by foreigners with regard to land in the Samoan Islands must be filed within a certain period; the claims must be accompanied by the titles and other documents or duly authenticated copies relating thereto."

Mr. Bayard said that proceeding in his mind upon a theory of what he might call the rights of the State of Samoa in these cases, which were very distinct, and oftentimes adverse to the rights of these foreign claimants, it was the right of Samoa to call all these claims into court and compel a submission of the claim of title to the land commission or court, because there was a great deal of public land occupied by people having no right to it. Such persons would desire no contest, for they were content with their possession; but he proposed that they should be called into court and their right to occupy should be established by them or else they lose it.

Mr. von Alvensleben said that as soon as any political adventurer got to the islands the first thing he did was to tell the Samoans, "You must trust me; I will get all the land back for you; I will take it away from the foreigners and you will get it." As soon as they learn that it is intended to regulate the land claims, they will come forward with no end of claims; but as soon as they see there are certain rules established, and that the foreigners do not mean to deal with claims not justified, they will be willing to come to an amicable settlement.

Mr. Bayard inquired whether he agreed that all land titles in Samoa ought to be overhauled?

Mr. von Alvensleben said he thought there ought to be some limit how far to go back. He thought they ought not to go further back than the time of the English and German treaties.

Mr. Bayard said that as the American treaty was the first, he was willing to go back to that. As it was agreed that there should be an overhauling of land titles, the question is, who is to do it? How could the commission proposed by the other members of the conference settle the question where a Samoan was concerned?

Mr. von Alvensleben said his proposition was that the members of the commission were to be appointed by the Samoan Government on the proposal of the treaty powIt was further said in his memorandum

ers.

"As far as the title deeds do not in themselves offer room for doubt as to the legality of the acquisition, all lands acquired before the conclusion of the German-Samoan and English-Samoan treaties, respectively—that is, before the 24th of January and 28th of August, 1879, respectively-and also, under the same conditions, all lands which, within the last two or three years, have been put under cultivation by the new owner, shall be registered as validly acquired without prejudice to the claims of third persons. On the other hand, the acquisition shall not be regarded as legal, and registration shall be provisionally refused in cases where the claimant is only in a position to produce, as a proof of his legal acquisition of the land, a so-called promise of sale, as well as in cases where the land has not been surveyed within two or three years following the conclusion of the sale, or where the deed of sale contains no precise description of the boundaries of the land sold, or where at the time of the conclusion of the contract the price of the land has not been paid in full to the seller, without

prejudice, however, to the claimant's right to demand a judicial decision. The commission shall be invested with the right of citing before them, through the local authorities, for examination, and of hearing as witnesses, the sellers and any other persons whom they may think fit to supply information. A very important question, especially touching land disputes between foreigners, concerns the determination of the right of ownership and disposition of the land sold on the part of native sellers. Numerous cases will present themselves in which one and the same piece of land has been sold by different persons, styling themselves the owners, to different parties, or in which pieces of land have been sold by persons whose right to the ownership and disposition of that land is disputed on the part of other Samoans. In this case the commission shall be empowered through the local government of the district in which the disputed land lies, to institute a native commission to determine the seller's right of ownership and to lay the result of such investigations, together with the underlying motives, before the foreign commission; this decision, however, shall not be binding on the latter. Such native commissions would have also to be charged with the examination, and, if required, with the decision of land disputes existing between the Samoans themselves. Pieces of land which for ten years or more have, without dispute, been cultivated, or at least made use of by foreigners, shall, without further inquiry, be regarded as property legally owned or acquired by prescription." Mr. von Alvensleben said they needed a native commission to help in these cases. Sir Lionel West said that was his idea; that the commission should facilitate.

T. F. BAYARD.
ALVENSLEBEN.

L. F. SACKVille West.

Confidential.]

PROTOCOL OF FIFTH SAMOAN CONFERENCE.

DEPARTMENT OF STATE,
Washington, July 21, 1887.

Mr. Bayard said that in the protocol of the second conference a number of agreed points were stated, one of which was that there should be a free and unawed native election of a king, without the interference of foreigners. The proposition submitted by him at the first conference was for the election of a king and vice-king. His object was to recognize the customs and wishes of the Samoans, and to provide for a succession in case of the death of a king, so that there would be no interregnum. He was still disposed to include in the plan of government the election of a viceking; and he desired to submit whether it would not be well, if the king and viceking should be elected for a term of years, to provide that the term should last until a successor was chosen, in order to prevent an interregnum.

Sir Lionel West inquired whether he meant that the king should be elected for a term of years?

Mr. Bayard said he was disposed to follow the customs of the country.

Mr. von Alvensleben said he also thought the customs of country should be followed wherever it could be done.

The election of a vice-king was then placed among the agreed points.

Mr. Bayard then referred to the question of a Faipule, and inquired whether there was objection to that?

Sir Lionel West asked whether he would make it a legislative body?

Mr. Bayard said it should retain whatever its function was before.

Mr. von Alvensleben said they did not meet regularly, although no matter of importance was transacted without their being consulted about it.

Sir Lionel West said he supposed it might be called a legislative assembly.

Mr. Bayard said that he had found the Faipule in the commissioners' report of existing customs as a legislative assembly, and for that reason he had retained it as such in his plan. The question was whether it would not tend to give satisfaction to the people to have this popular assembly to which they could send their representatives. Mr. von Alvensleben inquired whether it would not be best to agree that the Faipule should exist, but not to define its powers yet. This would be left to a further understanding. The Taimua would be taken into the king's council.

Mr. Bayard said that it might be agreed that the election should cover a king, a vice-king, and a Faipule, without any further definition as yet of the Faipule power.

Mr. von Alvensleben said that the Faipule should be elected by districts on a certain ratio of population—say, as proposed, one representative for every 2,000 of population, and not over the whole country, because the Samoans would not understand it.

FR 89-15

Mr. Bayard said he understood that there would be required the aggregate vote of the whole group for the king and vice-king, but that each district would elect its own representatives to the Faipule.

Sir Lionel West said by that they recognized the broad principle of an elective assembly.

Mr. Bayard said: Yes.

Mr. Bayard then referred to the land question, in respect to which there were three propositions before the conference. On page 3 of the protocol of the first conference it would be found that he had proposed a single land commission or court, of original and final jurisdiction, who should inquire into the nature and extent of each and every land claim by foreigners. It was proposed that this commission should consist of five members, appointed by the king, three to be appointed on the nomination of the powers, and the remaining two to be selected by the king, in order to recognize Samoan customs in relation to land.

In the paper submitted by the British minister at the first conference, it was proposed that there should be an "international land court," and that in order to facilitate its workings, "the existing land claims of foreigners should be disposed of by a commission," previously to the establishment of the international land court (Protocol, 1 Conf., p. 7). Before coming to the German proposition, he desired to ask whether the plan of Great Britain contemplated anything more than a commission in aid of the court; and whether that was the extent of the machinery proposed by the British Government to test the land question ?

Sir Lionel West said it was.

Mr. Bayard said that in the paper submitted by the German minister at the first conference, it was said that "the irregularities which are known to have occurred in regard to the acquisition of land, and the disputes to which they have led between foreigners and natives, make it appear expedient to consider the establishment of a special international court for the decision of claims and disputes relating to lands; and it was further said that in the composition of this court due consideration will have to be given to the nationality of the parties." (Protocol 1, Conf., p. 6.)

In the second conference the German minister explained that the international body would constitute merely a commission to prepare for the court; and he submitted, by instruction of his Government, a memorandum on land disputes, containing a scheme of procedure. In his memorandum it is declared to be consonant to the general principles of justice that disputes relating to real estate should be decided by the laws and courts of the country in which the object of dispute is situated;" and it is then proposed first to appoint a commission composed of three members, each of the three treaty powers naming one. Now, agreeing to the doctrine that disputes concerning realty should be decided by the laws and courts of the country in which it is situated, it seems that the courts whose judgments were to settle those conflicting claims ought to contain a native element. If, in addition to the three foreigners, there were two natives in the tribunal, the result would be that in the discussion of cases prior to judgment a knowledge would be given of native customs, and native rules in respect of the transmission of land. The opinions of the two natives would not be conclusive upon the other three judges, but would inform them, and the further object would be reached that the natives would feel that whatever the decision, they had a voice in making it, and they would pay greater respect and more voluntary obedience to the tribunals in which their customs and people had been fairly represented.

He had been unable to change his opinion that there is no function which the two bodies, the commission and the court, can perform, which the court could not efficiently perform with more directness and less complication. Still, if Great Britain and Germany agreed that it was desirable, he would, in order to reach an agreement, recommend the establishment of a land court, and also of a land commission who may perform preliminary functions of arranging business, with the understanding that the final decision rests with the court. He inquired whether the theory of the British suggestion went beyond this.

Sir Lionel West said: No, not at all. You have described it.

Mr. Bayard said: Then the statement I made last will be satisfactory to your Government?

Sir Lionel West said: I think so, thoroughly.

Mr. Bayard said he hoped it would be so to the Government of Germany, although he found in the more elaborate plan of the German Government a pursuit of the idea of commissions that was not very definite. In this plan, submitted at the second conference, it was declared to be "consonant to the general principles of justice that disputes relating to real estate should be decided by the laws and courts of the country in which the object of the dispute is situated;" that, owing, however, to the condition of Samoa, it is necessary that the disputes there should be "settled in a uniform procedure and according to uniform principles to be previously laid down by the treaty powers with the agreement of the Samoan Government, by an author

ity to be specially instituted, and in the last instance by a land court to be specially created;" "that the first body or commission should consist of three members, each of the powers naming one, to be appointed by the Samoan Government on the proposal of the powers; that before this commission all claims which are raised by foreigners with regard to land in the Samoan Islands must be filed within a certain period, the claims must be accompanied by the titles and other documents or duly authenticated copies relating thereto (3d Protocol, pp. 12, 13); that the "commission shall be invested with the right of citing before them, through the local authorities, for examination, and of having as witnesses the sellers and any other persons whom they think fit to supply information;" that in case, however, of sales by different natives of the same piece of land claimed by all, the commission may institute a native commission, but the decision of the latter is not to be binding on the former. The foreign commission is to be "authorized to give a provisional decision as to disputes relating to possession and ownership of land, or to effect an amicable arrangement. Whenever Samoans are involved as parties in such disputes, the foreign commission shall invoke the co-operation of a Samoan chief to be nominated by the government of the district where the land lies, or of the Samoan judge at Apia." From the decision of the commission there is to be an appeal to the land court, which is to be "composed of a judge nominated by the Samoan Government, and of the consul or of one of the prominent countrymen of the litigant."

Such was the plan submitted by the German minister in detail. It differed in two material points from the plan proposed by the British minister at the first conference. His proposition was, that there should be an "international land court" preceded by a commission. The "international court" suggested by the German minister at the first conference meant the land commission. The "land court" described in the plan submitted by him at the second conference is not international in the sense in which it is supposed that term was intended to be understood when used by the British minister at the first conference to designate the tribunal of final decision. The second point of difference was that the German plan contains a provision for a third commission or numerous commissions to be set up at the option of the principal or foreign commission. Thus, Mr. Bayard said, there were three plans before the conference. The first was that submitted by him for a single body of five members, three foreigners and two natives; the second was that submitted by the British minister for a commission and an international land court; and the third was that submitted by the German minister for a foreign commission of three members to be assisted in certain cases by a native person; a land court whose composition is not definitely stated; and such native commissions as the foreign commission may see fit to call into existence.

It was proposed in the memorandum submitted by the German minister that the "final settlement" of land disputes should take place by the "judicial decision of the land court." But it is to be composed only of a judge to be nominated by the Samoan Government and of the consul or one of the prominent countrymen of the litigant.

He observed that the term "litigant" was employed in this relation as meaning the foreign claimant. The plans says "the consul or one of the prominent countrymen of the litigant." If that was the uniform signification of the term as used in the plan, then it made no provision for an appeal by a native from the decision of the land commission. "The litigant shall have the right of appeal from the decisions of the commission, or of demanding a judicial decision by the land court" (2d Protocol, p. 14). Did this give a native claimant a right of appeal?

Another feature to be noticed in the plan submitted by the German minister for a land court was that while it was referred to as a court of appeal, it had no settled constitution and could not be guided by any settled rules. With such a body, or diversity or multiplicity of bodies, to sit in final judgment, it was not seen how the result of a uniform land system could be expected or reached.

Moreover, the plan for this court did not contain the recognition of a native element, and instead of containing anything like simplicity (he thought the English plan had exceeded practical utility) it would lead to the continual employment of inconvenient native commissions without any uniformity of decision, which, after all, is the great basis of safety as to land title.

Mr. von Alvensleben said he wished to draw attention to one paragraph in his memorandum, namely:

"In the present case, however, it must further be taken into consideration that in the absence of any sort of legal provision as to the conditions, requirements, and formalities necessary for the valid transfer of land, and in consequence of the utter complication existing in the ownership, irregularities, and it may be acts of injustice, have occurred, which absolutely demand an impartial decision based upon a thorough examination and investigation of the matter."

Although the decision of land disputes by the law and custom of the place is a proper principle, there should, in the present instance, be an application of some

modifications to that principle, and his Government wished the Samoans to be heard in dealing with these land claims. He did not think it possible that the natives should belong to the court, as they are too much interested, just as much as every foreigner who is there; and therefore he thought such a commission could only be composed of people who went to Samoa free from local influences, and who were sent out by their Governments. But in order to take into consideration the interests of the natives, they would call native commissions as soon as native interests were involved, and the settlement would be made according to the customs of the country. Mr. Bayard said that a tribunal of three foreigners might reach a disinterested decision, but that was not what was proposed. The memorandum of the German minister said: "The final settlement of the land disputes takes place by the judicial decision of the land court."

And further: "The latter is composed of a judge to be nominated by the Samoan Government, and of the consul or one of the prominent countrymen of the litigant." Mr. von Alvensleben said the intention was that this land court should be composed of a judge to be named by the Samoan Government and the cousuls or prominent countrymen of the nationalities to which the parties belong, so that the different parties should each be represented.

Mr. Bayard said that was creating, therefore, a special court in each case.

Mr. von Alvensleben said certainly; judges would change according to the nationality of the parties. There will always be a Samoan judge appointed by the Samoan Government, and he would be assisted by the representatives of the parties. If there were two parties of different nationalities engaged in a dispute, they would both be represented. If a German and American, there would be the consuls of the two countries, and they would assist the judge.

Mr. Bayard said: "Suppose a German and an Englishman take an appeal from the decision of the land commission, before what tribunal would they go? Before a judge named by the Samoan Government, a man named by the Englishman, and another named by the German. The litigants would take care to select their own friends, and then the judge appointed by the Samoan Government would make the final decision. Was it supposed that by creating a special tribunal in each case uniformity in decision would be attained? The idea had been to found something as near civilization as possible, and in judicial decisions it was essential that there should be stability and a system; that the laws should be laid down by the court, and that it should adhere to them. And unless there was some uniformity of decision there would be hopeless injustice. If in each case, after the land commission, composed of representatives of the three powers, had acted, there was an appeal in the manner suggested by the German minister, each tribunal would have a law for itself."

Another thing he would notice was the proposition to introduce the consul of the litigant into the tribunal, although the interference of the consuls in other matters was deemed unadvisable on account of their partisanship. He desired to inquire also whether the object of the conference would not be better reached by infusing into the court of last resort a native element which would, as a matter of numbers, be under the control of the representatives of the three treaty powers. According to the plan of five proposed by him there would be native representation and uniformity of decision, and the court would not ask what was the nationality of the claimant but what was the basis of his claim? Besides, in all courts of last resort there ought to be uneven numbers to prevent a dead-lock. According to the German minister's plan if there were three claimants the court would consist of four members.

Mr. von Alvensleben inquired who ought to preside in the tribunal proposed by Mr. Bayard!

Mr. Bayard said he would let the five men select him. This, however, was very important. He might be a German. He would have no more power than the rest. The object of having a presiding judge was to direct the business of the court, and the majority of the court would make the decision.

Mr. von Alvensleben said experience had taught that the foreigners never kept together.

Mr. Bayard said that the foreign officials in Samoa heretofore had not been there as judges under the Samoan Government, but as the official representatives of foreign powers.

Mr. von Alvensleben said that if the five judges were taken from Samoa there would be divisions from the beginning; because everybody there was interested in some way or another.

Mr. Bayard said that if a judge was interested he could not sit. He supposed, however, that men could be found who did not own land.

Mr. von Alvensleben said he thought not. As to the Samoans, they were all related to each other, and the characteristic given of them by Mr. Thurston is that they are rather untruthful, so that they would be quite ready if they could get the favor of any nationality in a land dispute to favor that nationality for that purpose. He was opposed to such a composition of the court as that.