No. 493.
Baron von
Zedtwitz to Mr. Bayard.
[Translation.]
Imperial German Legation,
Washington, June 2, 1888.
(Received June 6.)
Sir: Mr. Pendleton, envoy of the United States
of America at Berlin, addressed a note to the Imperial Government on the
10th of April last, in which a question of law was discussed in
connection with the use of a piece of property as a pilot station by the
former municipality of Apia, and complaint was made of the course
pursued in this matter by Mr. Becker, the imperial consul.
In reply the undersigned has the honor to inform the Hon. Mr. Bayard,
Secretary of State of the United States, that the information received
by the Imperial Government in regard to the legal questions connected
with the property agrees, in the main, with the statements contained in
Mr. Pendleton’s note. The property has hitherto belonged to Chief
Patiole, who, on the 6th of August, 1884, leased it to William Coe, who
is mentioned in the aforesaid note, and who sublet it to the
municipality of Apia. Chief Patiole, moreover, mortgaged the property in
question, together with other real estate, by a contract dated February
7, 1885, to the German Trade and Plantation Company of the South Sea
Islands, in satisfaction of a debt of $1,800, and a condition of this
mortgage was that, in case the debt should not be paid within three
years, the property mortgaged should come into the possession of the
creditor.
With regard to the course pursued by the imperial consul at Apia in this
matter, it appears from the inclosed copy of the correspondence between
him and Mr. Sewall, the United Spates consul-general, that: After the
imperial consul had given notice of the desire of his Government to
abrogate the municipal convention Mr. Sewall claimed the land, together
with the pilot-house which had been erected thereon by the former
municipality. Consul Becker did not dispute the claim to the land, but
simply stated that the party who was entitled to the piece of land could
not claim the surrender of the pilot-house, inasmuch as that belonged to
the former municipality, and consequently must be considered as a part
of its property, which was still subject to liquidation. The Trade and
Plantation Company took possession of the property in February last, in
pursuance of the above-mentioned contract. When Mr. Sewall demanded the
surrender of the land by the imperial consul the latter declared that he
could not summarily dispossess the Trade and Plantation Company, and
that he must suggest that the claim to the property be judicially
decided.
[Page 677]
In the opinion of the Imperial Government Consul Becker’s action in this
matter was right, for, however the question of law in regard to the
ownership of the property might have been decided, he could by no means
act arbitrarily against the possessor of the property before any
judicial action had been taken.
It is, however, another question whether the American consul-general was
authorized to assert a claim to the property. As appears from the
inclosed correspondence, he claimed the land, in the first place, for an
anonymous citizen of the United States, and subsequently for himself.
The distinct statement is first made in Mr. Pendleton’s note that the
claim was made in behalf of the above-named William Coe. Since, however,
Mr. Coe has expressly declared, in a written statement, which is now in
possession of the Imperial Government (bearing date of March 2, 1888),
that he never asked the American consul-general for his protection in
the matter in question, it looks as if Mr. Sewall had acted without
authority, and from motives not in harmony with Mr. Coe’s interests.
With regard to the question whether the German Trade and Plantation
Company or William Coe is entitled to the possession of the land, it is
admitted that the decision of this point may be doubtful, in view of the
fact that it is uncertain which law is to be enforced. According to the
common law which prevails in Germany the question would have to be
decided in favor of the Trade and Plantation Company, because, according
to it, the right of a lessee can not be paramount to that of a
mortgagee, and a lessee, when dispossessed, is simply entitled to an
action for damages against the lessor. The legal question may, however,
remain undiscussed, since William Coe, on the 17th of March last, made
an arrangement with the Plantation Company and transferred to that
company, in consideration of a certain sum of money, to him in hand
paid, all his rights to the property now in question. In point of fact,
therefore, the question raised in this matter may be considered as
settled.
According to the view taken by Mr. Sewall, and also in Mr. Pendle ton’s
note, the pilot-house erected by the former municipality now belongs to
the Trade and Plantation Company. The Imperial Government, on the other
hand, still considers the house as belonging to the former municipality,
and is consequently of the opinion that the three treaty powers properly
have control over it. Since it seems desirable that the building in
question should still be devoted to its original purpose, and “since the
pilot system established by the municipality is still continued by the
Samoan Government, the Imperial Government proposes that the pilot-house
be turned over to the latter (the Samoan Government) until the
establishment of a new communal administration (municipal government?),
on condition that the aforesaid Samoan Government bind itself to keep
the said pilot-house in proper repair. In view of the efforts made by
Tamasese’s government to maintain the communal regulations at Apia, the
Imperial Government thinks this proposition a reasonable one, and hopes
that it will be accepted by the Government of the United States.
The undersigned, etc.,
[Page 678]
[Inclosure 1.]
Mr. Sewall to
Mr. Becker.
Consulate-General of the United States of America,
Apia, Samoa,
Apia, January 31,
1888.
Sir: Referring to your communication of
18th January, I have to state that while the position of Her
Britannic Majesty’s vice-consul, Mr. Wilson, renders the
negotiations proposed hy you impossible, yet that in my opinion it
is advisable that some understanding be reached by ourselves
respecting the pilot station, the house of which is occupied by a
German subject and the land owned by a citizen of the United States.
I should be glad to have your opinion about this matter.
I am, etc.,
Harold Marsh
Sewall,
Consul
General.
[Inclosure
2.—Translation.]
Mr. Becker to
Mr. Sewall.
Imperial German Consulate for the South Sea
Islands,
Apia, January 31,
1888.
I have had the honor to receive your polite note of this date, and,
having made inquiry of the Samoan Government in relation to the
matter, I have the honor to make the following reply:
- 1.
- The Samoan Government is prepared to become a party to the
contract concluded between the owner of the land on which
the pilot-house stands and the former municipality and to
continue to be the lessee of the property, or to conclude a
new contract of lease with the owner of the property. Billie
Coe (Pele Toe), the colored man who concluded the contract
for the lease with the municipality and who still claims to
be the owner of the land, has for a week past been
negotiating with Judge Martin for an extension of the
contract.
- 2.
- If the owner of the land will not extend the lease and
will not conclude a new contract with the Samoan Government,
the latter will vacate the land without delay, and will
remove the pilot-house to another place.
- 3.
- With regard to the pilot-house itself, I respectfully
suggest that the sale of that building and the division of
the proceeds thereof be postponed until a general
arrangement is adopted concerning the property of the
municipality. In view of the smallness of the amount
involved, it would not seem as if there could be any
objections to such a postponement. The value of the
pilot-house certainly does not exceed $1,000, and you, as
the representative of the Americans here, could not, in any
event, claim more than one-third of that sum. The Samoan
Government will be obliged to pay a suitable rent for the
intervening time.
- 4.
- If you are unwilling to accept the proposition made by me
in the foregoing paragraph, and do not feel disposed to
permit the present occupant of the house to occupy it any
longer, the Samoan Government is prepared to vacate the
pilot-house also without delay.
I beg you to let me know the name of the owner of the land in
question in case it no longer belongs to Billy Coe, and I
respectfully ask to be informed which of my proposals you and the
owner of the land feel disposed to accept.
Accept, sir, etc.,
[Inclosure 3.]
Mr. Sewall to
Mr. Becker.
Consulate-General of the United States of
America,
Apia, Samoa,
Apia, February 1,
1888.
Sir: I have the honor to acknowledge the
receipt of your communication of yesterday’s date.
There appears to be a dispute as to the legal ownership of the land
in question, and I will shortly address you again on the
subject.
I am, etc.,
Harold Marsh
Sewall,
Consul-General.
[Page 679]
[Inclosure 4.]
Mr. Sewall to
Mr. Becker.
Consulate-General of the United States of
America,
Apia
Samoa, February 13,
1888.
Sir: Referring to our correspondence re the pilot station, I have the honor to
inform you that the title to the land in question is now vested in
myself, and that I decline to entertain any of the propositions made
in your letter of 31st of January.
I respectfully request that you notify the present occupant, who I
understand is a German subject, to remove forthwith.
An early acknowledgment of this will oblige me.
I am, etc.,
Harold Marsh
Sewall,
Consul-General.
[Inclosure 5.]
Mr. Becker to
Mr. Sewall.
Imperial German Consulate for the South Sea
Islands,
Apia, February 13,
1888.
Sir: I have communicated the contents of
your note of this date to the Samoan Government without delay.
The Samoan Government has vacated both the land and the house of the
pilot-station, and has intrusted the care of the house to me, as the
last president of the municipality.
In the name of the Imperial German Government I lay claim to a share
in the ownership of the aforesaid pilot-house. As the Germans
residing here paid more than one-half of the municipal taxes, which
afforded the means of defraying the expense of erecting the
pilot-house, I am especially entitled to the possession and control
of the pilot-house. I have therefore placed Mr. Johannsen, my
consular clerk, in the pilot-house, in order that he may take care
of the building until the adoption of a definitive arrangement with
regard to the property of the municipality. This German officer will
remove the house, of which the Imperial German Government is a joint
owner, from the land over which you claim control as soon as
possible (in three days at the latest), and will care for it
elsewhere.
Accept, sir, etc.,
[Inclosure 6.]
Mr. Sewall to
Mr. Becker.
United States Consulate-General,
Apia, February 14, 1888.
Sir: I have the honor to acknowledge the
receipt of your letter of yesterday’s date.
In my letter of the same date I requested you to notify the German
occupant of my land to quit. Your reply is to install there your
consular clerk, who will, you state, as a German public officer,
remove the house on it to another place.
I have to inform you that the right of this officer to possession is
not admitted, and that the removal of the house can not be allowed.
The house is a part of the freehold, and by the disruption of the
municipality to which it was leased, without assigning, it has
become the property of the owner of the freehold. It could never
have been removed by the municipality itself, and even if removable,
this must have been done before the termination of the
municipality’s tenancy. If, as intimated by you, the house is the
property of the rate-payers of the community, how, I may ask, have
you been authorized to act as custodian on their behalf? The
organization termed by you the “Samoan Government,” from which you
state you have received the care of the house, could not give you
this authority for it had noir this to give, never having succeeded
to the rights of the municipality, and therefore in this case never
having had legal possession of the house in question.
You allude to yourself as the last president of the municipality, but
I need not remind you that your claim to the presidency of the
municipal board and court of appeals [Page 680] was not recognized for the six months
preceding the withdrawal of your government from the municipality
convention; and even had this not been the case, I am not prepared
to admit that the fact that you once held this position gives you
any power superior to that of your consular colleagues over the
municipal property when the municipality has ceased to exist. And
equally inadmissible in my opinion is any claim to a special control
over the pilot-house, because, as you state, the Germans have paid
more than one-half of the municipal dues out of which the building
of the pilot-house was defrayed, a statement which does not accord
with the belief of American and English residents.
The rights of the subjects of the three treaty powers in the
municipal government, as in participation in the municipal
government, have been treated uniformly as equal.
Regarded as the property of these, the rights of their consular
representatives in the pilot-house are therefore the same, excepting
that the house being on my land, it would seem proper that if there
is to be any custodian of it pending the division of the municipal,
that custodian should be myself.
And, finally, without criticising your action in interrupting the
course of orderly negotiations by an undue measure, calculated to
forestall their results, I have to inform you that these
negotiations can proceed no further until the property in question
is vacated, and in the name of my Government I ask that this be done
without delay.
I am, etc.,
[Inclosure 7.]
Mr. Becker to
Mr. Sewall.
Imperial German Consulate for the South Sea
Islands,
Apia, February 14,
1888.
I hereby acknowledge the receipt of your polite note of the 14th
instant, relative to the pilot-station.
I regret to say that I am unable to find any reasons in your note why
I should take a different course from that which has already been
taken by me in this matter.
In the mean time, however, the case has reached a new phase, and, in
connection therewith, I beg to be allowed to make the following
remarks:
In our previous correspondence, since no claim was raised by the
German Government to the land of the pilot-station, I had no
occasion to examine the titles on which you base your claim to the
land. Your claim to the land in question haying now become known at
Apia, Mr. Edward Weber, as the representative here of fhe principal
agency of the German Trade and Plantation Company, called upon me
to-day, and showed me a contract concluded between Chief Laiafi
Patiole and the aforesaid, principal agency. According to this
contract, which was recorded in the register of the German consulate
on the 19th of February, 1885, Chief Patiole mortgaged a number of
pieces of land, among them that on which the pilot-house stands, to
the aforesaid principal agency, and the said pieces of land have,
according to the provisions of the contract, inasmuch as the amount
of the mortgage was not paid at the time fixed, become the property
of the German Trade and Plantation Company. That company asserts its
right to the land in question, and has taken possession thereof.
Under these circumstances I can not admit that the land of the
pilot-station is the property of a citizen of the United States of
America, and can only suggest that you assert your claim against the
above-named company by an appeal to the courts.
As to the pilot-house, I have not thought it necessary, in view of
this change in the state of the case, to have it removed from the
place where it now stands.
Accept, sir,
[Inclosure 8.]
Mr. Sewall to
Mr. Becker.
Consulate-General of the United States,
Apia, February 16, 1888.
Sir: I have the honor to acknowledge the
receipt yesterday of your favor dated the 14th instant, in which you
inform me that the German firm has taken possession [Page 681] of the land of the pilot-station under
a mortgage exhibited to you by Mr. E. Weber, made by the chief
Patiole and registered in the Imperial German consulate on the 19th
February, 1885.
In reply I have to inform you that the chief Patiole, by an indenture
dated August 6, 1884, and recorded at this office the 18th of
September following, leased this land to Mr. William Coe for fifteen
years.
At the time, therefore, that it is claimed the mortgage was made to
the German firm the land was already leased to Mr. Coe and could not
have been mortgaged, excepting subject to the terms of the
lease.
The action of the German firm is a trespass upon American property
which can not be acquiesced in, and I have to renew my request, made
in my letters of the 13th and 14th instant, that the land be
speedily vacated by its German occupant.
It is more than two weeks ago that I first addressed you on this
subject and stated that this land was owned by a citizen of the
United States, and not until yesterday did you question this title;
on the contrary, in your letter of the 31st January, you write that
the German magistrate has been negotiating for a week to secure from
Mr. Coe a renewal of the lease, and request me to let you know the
owner in case the land no longer belongs to him.
The title to this land may be taken to have been definitely settled
by the lease by Patiole to Mr. Coe and by the subsequent lease
executed to the municipality after investigation by the municipal
board. Mr. Coe made this lease as lessee under Patiole, and on the
day it was executed the latter appeared before the municipal
magistrate, and the contents of the lease having been made known to
him, declared that Mr. Coe had a right to lease the land and
consented to it. A copy of the acknowledgment of this lease
certified by the then United States consul, Dr. Canisius, is now in
this office.
The municipal board, satisfied with Mr. Coe’s title, leased the land
and the lease was signed by all the members of the board; your
predecessor, Dr. Stuebel, and H. Martin Ruge, esq., being the German
representatives. This lease is dated five months before the alleged
mortgage to the German firm.
From this time the rent has been paid to Mr. Coe, and his title has
been fully recognized. For the past year, as you are aware, Mr. E.
Weber has been a member of the board, without whose approval this
payment could not have been made.
With the terms of the lease to the municipality you are doubtless
familiar. It covenants that the land after the expiration of the
lease shall be “peaceably and quickly” surrendered to Mr. Coe.
The lease is now terminated and this covenant unfulfilled.
The question thus presented is not one simply of conflicting claims
between private parties, the settlement of which might perhaps, as
you suggest, be left to legal action, but it involves the good faith
of the former municipality and of every member of this
community.
The obligations of the municipality should be fulfilled, and these
demand that the land should be surrendered [as] covenanted in the
lease.
An early adjustment of this matter is desired by me, as it is one of
great importance.
I am, etc.,
Harold Marsh
Sewall,
Consul-General.
[Inclosure 9.]
Mr. Becker to
Mr. Sewall.
Imperial German Consulate for the South Sea
Islands,
Apia, February 16,
1888.
In reply to your favor of this day’s date, I have the honor to state
that the principal agency of the German Trade and Plantation
Company, although it has been made acquainted with the contents of
your communications, still asserts its right to the possession and
ownership of the land of the pilot-station. According to German law,
I am not authorized to dispossess the aforesaid company of a piece
of land which it now holds, unless an executory decision pronounced
against it by a German court is exhibited to me.
The question who is entitled to the possession of the land in dispute
is one of a legal character, and can be decided by a competent court
only, or, if there is no such court, by an agreement between our
Governments, by arbitration, for instance.
I do not, therefore, think it necessary for me here to discuss any
further the legal points referred to in your polite note. I merely
take the liberty to state that before [Page 682] the point at issue is decided the question
should he settled which law (German or American) is to be taken as
the basis of the decision. I can not admit that a dispute between a
German and an American concerning a piece of land situated in Samoa
should be decided wholly in accordance with the principles of law
which prevail in the United States, as you appear to think that it
should.
As to the reasons why I did not think it necessary sooner to discuss
the question of the possession of the land, I stated them in my note
of the 14th instant.
With regard to the pilot-house, I can only likewise suggest to you to
await the decision of our Governments. No one can suffer any
appreciable detriment from a postponement of the decision of this
whole matter. The interests of the American citizens concerned seem
to be fully protected, since ail the ready money that belonged to
the former municipality is now in the custody of Mr. Hamilton, the
American vice-consul.
Accept, etc.,
