Other formats

    Adobe Portable Document Format file (facsimile images)   TEI XML file   ePub eBook file  


    mail icontwitter iconBlogspot iconrss icon

The Pamphlet Collection of Sir Robert Stout: Volume 76

The Protocols and Mataafa

The Protocols and Mataafa.

I come now to consider the decision of Chief Justice Chambers, which has already exercised such a potent influence over the destinies of Samoa, and the ultimate effect of which it is as yet impossible to determine or estimate. For the purpose of these articles it will be sufficient to review that decision under four heads, put in the form of questions.

First. Is the decision based on any provision of the Treaty itself?

Second. Is the decision founded on any stipulation, agreement, or provision in the protocols?

Third. Do the protocols, and, in particular, this condition as to Mataafa's ineligibility which Chief Justice Chambers holds to be "so manifestly and mandatorily stated," form part of the Treaty!

Fourth. Is the decision final and conclusive, or can it be reviewed, annulled, or reversed?

The first question has been already practically disposed of. There is absolutely nothing in the Treaty, express or implied, page 15 imposing any disability whatever on Mataafa. Nor does His Honor profess to base his decision on any provision of the Treaty itself. He founds his judgment on the condition which he finds to be "so manifestly and mandatorily stated in the protocol of the Fifth Session of the Conference." holding that the protocol forms part of the Treaty, and that he is, therefore, bound by what it contains. It is well to bear in mind that Chief Justice Chambers, who is an American lawyer of repute, has arrived at that con elusion after hearing argument by counsel on both sides, after careful consideration of the matter, and with a full sense of the great responsibility devolving upon him, and, moreover, knowing that if he decided against Mataafa it was morally certain that civil war would immediately begin. On the other hand, if he decided in favour of Mataafa, war was not likely to arise, at least for some time, and many personal troubles and difficulties would have been avoided. Those who study the matter impartially will therefore be convinced that, though some may doubt the correctness of the decision, it was conscientiously given. T must confess, however, that when I come to look for a definite agreement, condition, or stipulation, unanimously assented to by the three Powers, and embodied in a minute, resolution, or declaration in the protocol, as the emphatic words of the Chief Justice would lead one to expect, I fail to discover it. Count Bismarck's words have already been quoted, and the Chief Justice, in referring to the matter, says:—"Count Bismarck consented to the principal of the election of a king, but did so upon the condition that one exception should be made, in the person of Mataafa, on account of the outrages committed on his people, and under his authority, upon dead and wounded German sailors lying on the field of action. Sir E. Malet, Senior Plenipotentiary, on behalf of Great Britain, voiced the sentiments of all the other Plenipotentiaries, that the exception made by Count Bismarck was fair and reasonable, stating that his Government would have probably entertained a similar objection had the like atrocities been committed on British sailors." With all deference to Sir E. Malet, there is perhaps room for considerable doubt on the matter. Let us put a parallel case. Suppose the Indian territory in the United States to be in the same unfortunate position as Samoa, and that during the struggles between rival chiefs for the supremacy, a company of English soldiers had intermeddled, some of them being scalped, in accordance with Indian custom, on the field of action, would England, when matters came to be settled up by a Conference, raise a similar objection to the eligibility of the chief whose warriors had, with or without his authority, taken the soldiers' scalps? I think not. However, the question is not what England would have done under similar circumstances, but what was really done at the Berlin Conference. It is important to note that no page 16 resolution was passed, no agreement recorded, no understanding arrived at.

Does it not simply amount to this: That in the event of an election taking place, and Mataafa being a candidate, the German Government, not the Treaty Powers, would object, and that probably, not certainly, that objection would be supported by the British Government? That there was no agreement that Mataafa should be deemed ineligible is apparently clear from the remarks of Mr. Phelps, one of the American Plenipotentiaries. The American representatives listened to Count Bismarck's denunciation of Mataafa in silence, and before the sitting closed Mr. Phelps "asked permission to revert to certain views expressed by Count Bismarck at the beginning of the session, that he might state that the silence of the American Plenipotentiaries was not to be construed as assenting to those views, except as they expressed an indignation at the atrocities mentioned, with which the United States heartily sympathised. Happily, the assent of the Conference to Sir E. Malet's proposition made the question of who among the natives were responsible for these atrocities a mere academic question, and the subject need not therefore be further pursued." It is manifest from this that if Sir E. Mart's remarks are to be understood as consenting to a disability that was then placed on Mataafa, the British Ambassador did not "voice the sentiments of all the other Plenipotentiaries," and it may be very fairly presumed, from Mr. Phelps' remarks, that the necessary consent of one at least of the three great contracting parties was withheld, and that it would have probably been difficult, if not impossible, to obtain it. Is it not also a fair deduction from Mr. Phelps' remarks, that in consequence of a proposition made by Sir E. Malet being accepted, the demand for the ostracism of Mataafa was not pressed? What was that proposition? Turning back, we find it in the same protocol, and immediately after Count Bismarck's remarks. Sir E. Malet was one of a sub-committee appointed to consider the form of the future Government of Samoa. He read the report, which, after alluding to the difficulties surrounding the election of a king in the then distracted state of Samoa, proceeded:—"We therefore propose that in the interests of the peace and prosperity of the islands, it should be intimated to the Samoan people that if they will take Malietoa us king, such act on the part of the Samoans shall receive the sanction of the Treaty Powers." It might be fairly argued from what has appeared above, not only that no disability was actually placed on Mataafa, but also that the one contemplated had reference only to an election, which it was originally intended should take place upon the Treaty coming into operation. What would appear to support this view is a paragraph from the report of the British Plenipotentiaries to page 17 Lord Salisbury, which runs as follows:—"Our original instructions contemplated the necessity of a fresh election of a native ruler, and we were authorised to cordially support any arrangement for securing the free election of a Sovereign. Your Lordship, at the same time, correctly anticipated that this was a matter likely to give rise to serious discussion in the Conference, as there was a possibility of the liberty of choice being restricted in the view of some of the Powers by considerations arising out of past events. In order to obviate this difficulty, which we promptly recognised as the only serious one likely to occur in the course of our negotiations, Her Majesty's Plenipotentiaries assumed the responsibility of recommending an alternative mode of supplying the Samoans with a native ruler of their own choice, in the person of Malietoa Laupepa. . . . This proposition, which fully corresponded to the wish expressed by the United States Plenipotentiaries for a restoration, if possible, of the status quo, met with complete success."

It may be urged in support of the decision of the Chief Justice that it was clearly the intention of Germany to impose a disability on Mataafa if a genuine election had taken place instead of the farce of inviting the Samoans to reinstate Malietoa Laupepa. There can be no doubt on that point. There is also nothing to show that that disability was to last for a limited time. Probably the German Government at that time were determined to oppose Mataafa's election to the kingship at any time during his life. Had Malietoa died a year or so after his reinstatement, there is little doubt that Germany would have objected strongly to Mataafa succeeding him. It is sought, however, to make the protocols, in effect, a penal statute as against Mataafa, and it can be urged on his behalf that this penal statute should, in accordance with a well-recognised principle of law, be strictly construed. It is not too much to say that a strict construction renders it impossible to discover anything in the shape of a penal enactment against him