7914 C651 1899
IMrS VOM KMS BEEN W.4CROE ILMED By THE UNIVERSITY OF FLORIDA LIRRARZES%
. . . . . .
DOCUMENTS' I I ?, Z',
F, ,, A T RNf,
L Aj "N S
1 4r 1,
Concession from Spain, dated December 5th, 1866,
giving to the International Ocean Telegraph Company the exclusive right to establish telegraphic communication between the United States and
Cuba .............................. .. .... Page 1
Royal Order of May 13th, 1867, declaring the term of
the concession to be for forty years unconditionally .................................. Page 5
Royal Decree, April 1st, 1887, giving to the French
Cable Company the right to lay a cable between Hayti and Cuba, but. preserving the rights of the International Ocean Telegraph Company (see
Section 8, Page 8) .........................Page 7
Royal Order, January 27th, 1889, defining the rights
of the French Cable Company and preserving the rights of the International Ocean Telegraph
Company (see Page 27) ..................... Page 12
Brief of the International Ocean Telegraph in hearing
before Attorney-General ..................Page 31
Treaty of Peace, Clause VIII, concerning maintenance
of existing rights in Cuba ..................Page 37
Attorney-General's opinions on the application of the
Commercial Cable Company to land cable, in
Cuba ..................... Appendix, Pages 1 and 4
A Literal Translation of The Royal Decree Issued
by H. X. the Queen of Spain Regarding the Laying of the Telegraphic Cable between the United States
and the Island of Cuba.
The Queen (over whom may the Lord watch) has condescended
to issue the following Royal Decree.
"In accordance with the proposition of the Foreign Minister,
and in conformity with the opinion of The Council of Ministers,
I make the following decree.
Article 1st. The Grant that on the- nineteenth of last June
was temporarily given by a Royal Decree to Mr. William Smith Representative of the Telegraphic International Oceanic Company, to fix in some point of the Island of Cuba, the end of the
Telegraphic Submarine Cable, which has to start from the coast of Florida in the United States, is now given with a definite character, & for the term of forty years, for the placing of the cable or cables, which starting from the States of the Union, end in the said Island of Cuba, provided that during the same, period of time, the United States Government does not deprive
them of the exclusive Grant allowed them.
Article 2d. This concession is subject to the Regulations.
which tho said Royal Order contains, and to those which tfiet
following articles establish.
Article 3d. The laying of the Cable or Cables is left to the
choice of the Company, provided that it is done with the purpose of placing the Island of Cuba, in perfect telegraphic relationship, with Lines established by, and in service of, the
Article 4th. The Cable or Cables, will have to be laid, and in
good transmitting condition within a year, counting from the date of the Grant. If in the said time it should not, or they
should not be laid, or should prove to be useless or unfit to render the service required, the Grant will be considered annulled, and without the least value. In case that these Conductors should prove to be useless within the term of the duration of this contract, the Company is obliged to replace it or not in original.)
them within the same term of a year; (so that the communication may be established anew.
Article 5th. The service and preservation of the Line in the Spanish Possessions, will be done by the telegraphic-Administration of the Government; which for the purpose, will name the grantee
necessary employees, the Company having to pay for all the expenses, and will have to deliver to the respective Treasury, the amounts due. The salaries will be fixed in accordance with those assigned to said Functionaries, and with the a-,quiesence of the Company.
Article 6th. It will be the duty of the Company to furnish the Apparatus required for -the Cable or Cables, the Company having the right of exchanging or modifying it as they see fit.
Article 7th. The Company will be obliged to give preference to the transmission of the Official Correspondence, without Government
examining its contents in any way ,whatever; and Awill have the right of making use of reserved keys, if they see fit, in the transmission of said correspondence. The Official Correspondence will be subject to pay the same price that is marked in the Tariff. In case there should be any difficulty arise, the Spanish correspondence, as also that of the Spanish Possessions, must have the same advantages of priority and price, as that of the most favored Nations.
Article 8th. It will be the duty of the Telegraph Offices in the Spanish Possessions, to examine every kind of correspondence, but the Official one; and they will have the right to refuse the forwarding of the dispatches presented to them to be forwarded, or the ones received, to be delivered; provided that their contents are contrary to Morality and prejudicial to the
security of the State, or to the Public order. To avoid all this, it will not be allowed to send any kind of private correspondence through ciphers or reserved keys.
Article 9th. All the questions that between the Administration and the- Company should happen to arise, will be decided without the intervention of the Government of other countries. They can only be decided by the Regulations established in settling the contracts with the Public Service.
Article 10th. In case that the service of the Line, should be mes
interrupted partially or totally for more than a year, on account of Mercantile Accidents, or misunderstandings between the Company and its employees, or on account of any causes owing to the negligence or bad organization or management of the Grantee
Company itself, or whether it proceeds from the imperfection of the Apparatus, or from the Superintendence of it, the Government will have a right to take a temporary possession of the service of the cable or cables, making use of it or them, and retain all it, or they, may yield. The profits thus taken by the GovGrantee
erment, will be given to the Company at the proper time, after deducting the expenses incurred by the Official Administration, and for the keeping and repairing of the Cable or Cables. And
be it und 'erstood that if there should be an e A tire interruption in the working of the Cable or Cables exceeding fourteen months' time, this Grant will be considered annulled.
Article 11th. An especial Tariff will fix the prices that will be charged by this International Telegraphic Company, or the sending -of Official and Private Telegrams, and will also contain all the Details appertaining to this Enterprise. It will likewise Grantee
contain the guarantee that the same Company will have to give for the collecting of the shares due to the Lines of the Government for the dispatches sent by said lines.
Article 12th. The messages of .the cables or the Landlines belonging to this Telegraph Company that require to be sent through the Havana Station, and that have to be executed in
Spanish Territory, will be considered of Public utility, in accordance with the Law enforced and established.
Given at the Palace on the fifth of December, 1866. It is signed by the Royal Hand.
Ultramarine Minister (signed) ALEJANDRO CASTRO."
Which I transcribe to you by order of the Minister of the State, to make you acquainted with the facts of the case.
May the Lord have you in his keeping for many years.
Washington, February 5th, 1867.
GABIRIEL G. TASSARA.
To. Mr. William Smith, Representative of the International Telegraphic Oceanic Company, New York. Dn. Luis LOPEZ DE ARoYE Y NOEL, Acting Sflanislt Consul
for the State and CJity of New York, &Cc., &Cr.
I hereby certify, that the preceding translation is a correct copy having personally revised, & corrected it, & for those whom it may concern, I sign this certificate in New York on the eleventh day of February of the year one-eight hundred & sixtyseven.
[Seal of Consulado de Espa, en Nueva York.]
Luis LOPEZ DE ARoYE Y NOEL. Fees, $2 in gold.
Translation Original Grant from Spain making Grant definite for 40 years Cuba to Florida, 5 Dee: 1866. To 1. 0. T. Co.
Translated from the "Gaceta de Madrid," of May 17th, 1867.
In view of the reason s exposed by the Minister of the Colonies: In view of Article 1st of the Decree of 5th December 1866, by which the temporary permission granted to Win. F. Smith Esq. representative of the International Ocean Telegraph Company, by Royal Order of -19th of June previous to land at a 'point on the Island of Cuba, the end of the submarine cable that is to start from the coasts of Florida, in the United States, was changed to a final one:
In view of the 2nd Condition of schedule of terms approved by Decree of 26th of February last, for the establishment and working of submarine cables between the islands of Cuba, Porto Rico and the Canaries and between the first of these, Panama and the coasts of the South American Continent:
In view of the petition made, March 2nd 1867 by the representative of the above mentioned Company.
Considering that there is no reason for establishing differences as regards time, between permissions emanating from the same Government, once projected the main submarine telegraph line that is to place in communication the new and old Continent, uniting our ultramarine possessions in the Western world, with the cables starting from Europe, touching in the United States and reaching "the Island of Cuba by the way of Florida, all subject to the term of 40 years in the final concession for laying those apparatus on our coasts and jurisdictional seas:
Considering that in this respect article 1st of above-named Decree of 5th December 1866, should be complied with, that in no case the term of duration of grants made, referring to the cables of Cuba to Porto Rico and to the Canaries, and to Mexico, Panama, and the South American coasts, should exceed the permission granted to the International Ocean Telegraph Company, I decree as follows:
Art. 1st. The permission to land on the coasts of the Island of Cuba the submarine telegraphic cables refereed to by Art. 1st of the decree of 5th of December, 1866, -will be reputed as a final grant, made to the International Ocean Telegraph Company, for the term of 40 years, subject to the terms established
in the 2nd condition of Schedule of terms for bidders in sale of said grant, authorized by decree of same date, 26th February last.
IArt. 2nd. For the fulfilment of its provisions, be it understood that the concession of Decree of 5th December 1866 is hereby modified in the sense of the foregoing article.
Given at Palace, on the 13th day of May 1867.
Subscribed by the Royal Hand.
Minister of the Colonies.
NOTE.-2nd Condition to which reference is made, translated from the Gaceta de Madrid," Feb. 28th, 1867.
The Company will make use of the telegraphic lines during 40 years, the Government, making no other grants during this time for the establishment of Parallel lines.
After the expiration of said term, the Government will be free to accord permissions for new landings solicited, the Company continuing in the enjoyment of the use of their line. For the ends of this article, parallel lines will be such, that starting from Cuba and Porto Rico, will have submerged, cables running approximately in the same direction.
,[E ndorsed:] Translation from the "Gaceta de Madrid," May 17th, 1867. Exclusive Grant to the 1. 0. T. Co. from Spain for the term of 40 years. Without restrictions as to U. S. grant.
(Translated from the Spanish.)
The King, whom God preserve, and in his name the Queen Regent of the kingdom, has thought fit to grant, under this date the following R. Decree.
Upon the proposal of the Minister of the Colonies in conformity with the opinion of the Colonial section of the Council of State, and by agreement with the Council of Ministers I do hereby concede to iDon Jos6 Rafael Viz-carrondo authority' to, lay and work a telegraph- cable between the Island of Cuba and Haiti, in accordance with the cahier des charges approved on the 20th February of the present, year.
Given at the Palace, the first of April 1887.
The Minister of the'Colonies.
Cahier des charges for the establishment and working of a
submarine telegraph cable which starting from the coast of the Island of Cuba between Santiago and Punta de Maisi is to terminate on the coasts of the Island of Haiti between the
Mole of Sn. Nicolas and Cape Dofia Maria.
Art. 1. The concessionaire undertakes to establish anad work the aforesaid cable.
Art. 2. The concessionaire undertakes to make the necessary surveys with the view to fix the point of landing and to construct for his own account the portion of telegraphic land line which will connect the end of the cable with, such station as will in due course be determined upon.
Art. 3. The Station for receipt and transmission for the Service of the cable will be located in the Station of the State, the concessionaire paying the sums required for the enlarge-
ment of the latter consequent on the establishment of the new line.
Art. 4. The concessionaire engages to make the special surveys which this project may require in order to determine exactly the spot where the cable must be landed; and must, within the period of one year, present the result of his operations.
IArt. 5. The cable must be laid and in process of working, in favorable conditions for electric transmission within the precise
-period of two years, reckoned from the date of this concession; failing which the caution money deposited will be forfeited to the State.
Art. 6. The caution of twenty thousand pesetas which the ,concessionaire has to pay in to the "1Cajk General de Depositos" in order to respond for the fulfilment of the conditions of this concession, will be raised to forty thousand pesetas within the fortnight following the date of such concession and before executing the respective contract. The total caution money will be returned so soon as there has been received in the Island of Cuba a telegram which, sent from Haiti and transmitted by the cable, shall announce its definitive establishment.
Art. 7. This concession must be understood as made without privilege of time or place as also without subvention of any kind.
Art. 8. The concession is strictly limited to Haiti, so that there may be no infringement of the privileges conceded to the "International Oceanic" and "West India and Panama" Companies.
Art. 9. It is an express condition that if the concessionaire be desirous of extending the communication to another or to other points, he may not do so without obtaining the previous authorization of the Spanish Government.
Art. 10. The Spanish Government reserves to itself power to suspend the transmission of messages by the cable in case they should in any way imperil the security of the State, in conformity with the provisions of the international telegraphic. convention, now in force.
Art. 11. The concessionaire will fix the tariffs of prices
chargeable for the messages sent through the cable, the maximum rates not exceeding those adopted by the telegraph Companies whose cables are laid under analogous conditions. Under all circumstances an allowance will be made to the Spanish Administration for the tract of Cuban territory passed over by every telegram of an equivalent amount to that now received in accordance with the rates in force. Should the said tariffs undergo any variation, the concessionaire will be bound to effect the same alterations in the part which concerns the Spanish Administration.
Art 12. The official messages of the Spanish Government throughout all the branches of the service will enjoy a priority in respect of their transmission by the Cable, and will be paid for in conformity with the tariffs established; no examination whatsoever may be made of their contents, and the Govt. may in respect thereof use a Special code. The private messages of Spain and her possessions shall enjoy all such advantages as regards priority and rates as are respectfully granted to the most favored nation.
Art. 13. The Spanish authorities will have the right to inspect messages of every kind and may forbid the transmission of such as are either received through the line or are presented for dispatch, if their contents be an infringement of morality or are prejudicial to the morality of the State oir public order. As a consequence of this regulation any cipher or secret code must be excluded from all messages of a private character.
Art. 14. The concessionaire may employ such system of apparatus as he may deem convenient for communications by the Cable, and may modify and alter the same as he may consider most advisable.
Art. 15. All telegraph -clerks for the reception and transmission of messages by the cable as also such officials as may be employed in keeping up and maintaining the same shall be chargeable upon the concessionaire.
Art. 16. The Government reserves to itself the right to organize in respect of the cable such service of intervention as may be most in harmony with the existing regulations. To this end alltelegrams received through the cable shall be immediately deliv-
ered for direction and distribution to State officials. Such as are presented for transmission by this line, shall be received by the said officials as intermediaries between the public and the concessionaire's agents.
Art. 17. The accounts shall be kept by both parties in accordance with the international regulations in force upon the subject.
Art. 18. All telegrams transmitted through the cable will be entered at the Station referred to in art. 3 for the purpose of registration and of making the proper entries in the accounts which are to be mutually rendered; at the same time the convenience of the service does not make it advisable to select any other spot for their reception.
Art. 19. The rules established in the International Telegraph Convention above alluded to, as also those of any other agreement to which Spain may be a party shall be applicable to this line, provided always that they are not opposed to the clauses of this concession.
Art. 20. Special regulations to be presented by the concessionaire for Government approval before this line is brought into service, must explain all matters concerning the application of the rates, service and other particulars connected with the working of the line.
Art. 21. 'Should the service of the line be interrupted for more than one month owing to any cause that may be imputable to the -negligence or bad organization of the enterprise, the Government may take over the cable and receive the proceeds of its working, which will be paid to the Company when suitable after deduction of tbe expenses of the official administration, and those for the maintenance, repairs and other matters which may have been incurred. In all cases this concession will be held as at an end should the total interruption of the Service exceed one year dated from an official notice served upon the Company.
Art. 22. All materials that it may be necessary to employ for the construction upon Spanish territory, both as regards the Submarine Cable and aerial line which is to be connected with the Cable at the Station referred to, as well as all apparatus and
other requisites, shall be considered as belonging to a public work, and will therefore enjoy all those benefits which the laws. in force concede for such services.
Art. 23. The concessionaire must appoint in Madrid a duly authorized representative to act in his name in all matters and things which may occur as between the Spanish administration and the concessionaire.
Art. 24. Any questions that may arise between the parties shall be decided by the measures established by the dispositions. in force; for the right understanding and effects of contracts of public services in Spain.
Art. 25. The non-observance on the part of the concessionaire of any of the clauses contained in this concession, shall be sufficient to render it null and of no value or effect. .
This cahier des charges was accepted by Dn. Jos6 Rafael Vizcarrondo, and in consequence thereof he made the deposit of forty thousand pesetas in two instalments of twenty thousand each.
The foregoing data are copied from the respective IDeed executed on the 27th April 1887 before the notary of this Capital and Dean of its Illustrious Territorial College, IDn. Jos6 Gonsalo de las Casas y Quyano by the most Illustrious Dn. Tirso Rodrigafles Under Secretary of the Colonial ministry in the name of HI. E. the minister in favour of Dn. Jos6 Rafael Vizoarrondo y Coronado.
DEPARTMENT OF COfMUNICATIONS. The Minister of Colonies, under date of the 27th of January last, informs his Excellency the Governor General the following Royal Order:
EXCELLENCY: The proceedings instituted in consequence of the temporary opening of the Submarine Telegraphic Company, between Cuba and Hayti, having been referred to the financial and, Colonial Section of the Council of State, has reported as follows : The section has examined the proceedings enacted by reason of reclamations against the location of the Submarine telegraphic Cable between Cuba and ilayti presented in the name of the "1International Ocean"'. and the West India and Panama" Companies by the British Consul at Havana, and at Madrid by the representatives of said companies. ,From 'the antecedents, that by Royal Decree of 1887 (1st of April) Mr. Jose Rafael Vizoarrondo obtained, without subsidy of any, kind nor privilege of time or place, the authorization to establish and work a telegraphic Cable which starting from the Island of Cuba, between Santiago and Maisi point, should terminate at the Coasts of Hlayti, between the Mola of San Nicolas and Cape Don~a Maria: The said grant being thereby confined to the latter Island according to Article 8th of the Schedule of Stipulations, so as not to infringe the privileges conceded to the aforenamed companies ; and it being forbidden by the 9th Article to the grantee to extend the communication to one or more other points without obtaining previously the permission of the Spanish Government-that Vizcarrondo transferred with your Excellency's sanction said grant to Mr. Tadeo Oksza, Count Oksza, who in the understanding of the Spanish administration, down to the present time is the veritable grantee, represented as appears in the proceedings by Mr. Lucas Mariano de Tornos in obedience to the prescription 23d of the Schedule of Stipulations-That while the survey and soundings in order to lay the cable were being made the English Consul at Havana applied to the Governor General of Cuba, requesting the suspension of those operations -on the ground that a telegraphic cable was already in existence from Laguayra
to Curazao and fro m the latter place to Santa Domingo with lines on land connecting with Hayti, which would precipitate the connection with the one contemplatedd'rom this Republic to Santiago de Cuba and hence the Articles 8th and 9th declaring the location and working of this cable were infringed as well as the privileges awarded to the International Ocean and West India and Panama Company-That the Governor General remitted said reclamations to the consultation of the Department of Communications which was of opinion that inasmuch as the studies' preparatory to the laying of the cable from Port Agnadores of the Island of Cuba which is comprised in the area of the coast marked in the grant and inasmuch as the labor of soundings were directed towards ilayti, there was no reason to suppose that the cable would be located contrary to the Articles 8th and 9th of the schedule of stipulations, as long as there be -no proof of having exceeded the limits marked in the concession which has no reference whatever to the cables laid between La Guayra and Curazao and between this Island and Santo Domingo, nor to the air line which goes to Porto Plata because the former are in operation at places which do not belong to the sovereignty of Hayti, and the latter is not comprehended in the above mentioned schedule of stipulations which refers only to the prolongation or extension of Sub Marine Cables; confined thereby to the Coasts of the Territory of the latter Republic ; and the Governor General accepting the said consultation communicated the same to the Colonial Department to obtain your Excellency's supreme resolution.
That the adequate section of the secretaryship expressed the opinion also that it was in rule to approve the resolution taken by the Governor General not to suspend the labors of laying the cable and to recommend to said authority to render an account of the reports of the Commissioner who inspected the labors for laying the cable in the event of any of the
*conditions of the concession being infringed. That the proceedings were remitted for consultation to the Colonial council and the same expressed the opinion that the British consul had no right whatever to demand in the name of the aforenamed companies the suspension of the laying of the cable in question
because the Government when permitting it, had taken into account the privileges which the former are entitled to during forty years and furthermore because the line between Cuba and Hayti does not run parallel to those established under privileged grants. But as it might possibly be true, as asserted by the claimant that the cable between Cuba and Hayti was in communication with the South, American Coasts, the Governor General should be instructed to let the Government know promptly and by a sure conduct whether such assertion be true: With a view not to allow the working of the cable between Cuba and Hayti since the 9th stipulation positively establishes that if the grantee were to desire to extend the connection from the latter place to others, he could not do so without previously obtaining permission from the -Spanish government. That the representative of the West India and Panama Company in Madrid stated to your excellency that the grantees of the cable between Cuba and Hayti bad infringed the clauses of the contract, making itself amenable to the penalty of article 25th of the schedule of stipulations, because otherwise a line would be accepted parallel to the one which with exclusive privilege is worked by said enterprise. That the adequate section of the colonial ministry studying again the grant of the cable between Cuba and Hayti, the articles 1st and 2d of the royal decree of 28th May, 1868, which determined what privilege should revert to the West India under given circumstances and other antecedents expressed the opinion I I that there had been no extra limitation whatever committed by the grantee of the above-named cable. That the latter line is independent of any other which may be established at Santo Domingo and other foreign territories, & that it was in rule therefore to authorize if only temporarily the opening of the communication so long as they were between Cuba and Hayti, but since the West India Company insisted in sustaining that this privilege which had been conceded to the same had been violated it would be right to hear the views of this section of the- council of state, that the representative at Madrid of the enterprise of the, cable between Cuba and Hayti, states under date of August 6th last that -Count Oksza is the sole grantee
of the said line in consequence of the transfer executed by Mr. Jos6 Rafael Vizoarrondo, that the cable is laid from Guantanamo, near Santiago de Cuba, and terminates at San Nicolas de Hayti, and with nothing opposed to 8th and 9th clauses of the schedule of stipulations, and that while it may not extend the connection to other points without previous authorization from the government the transmission of telegrams by the cable is guaranteed by the international telegraphic agreement of St. Petersburg and was reported by the governor general to the colonial ministry when opened to public service between Cuba and Hayti. That according to the report of the French Company, which works the lines from Laguayra, to Curazao and from Curazao to St. Domingo, the said company has no cables laid to points unrevealed nor where there be stations of other companies, and that -the department of communications in this island had issued to Santiago de Cuba precise instructions so that the line should not be extended to places occupied by companies previously enjoying privileges that the Spanish representative 'near the Venezuelan government gives the account of a conference had with the president of the republic who strongly recommended him to intercede with the Captain General of Cuba so that the telegraphic cable of that, country might' simultaneously with the one which connects the great antille with Europe 'be in direct communication with the old continent, the said functionary jud ging that the excellent relations existing between 'Spain and the South American republics can only improve through measures of mutual courtesy that the general department of communications of the island of Cuba stated that the West India had permitted without protest the laying of three cables which touch at South America which is not the case with the Island of Curazao which is a dutch dependence anad that the cable granted to D Oksza only touches at Cuba and San Nicolas of Hayti, that the British consul at Havana in a despatch which the governor general sent to your excellency complaining of the French company, (it is so he names the grantee of the Cuba and Hlayti cable), saying that the said company is transmitting telegrams to said island to the detri-
ment of the English companies who held privileges from the party of Spain because through said cable messages are carried to countries included in the concession made to the West India & they are reissued at Santiago de Cuba for Europe as if tbey originated there by means of their officers not delivering them at the submarine Cuba station to tbe injury of the business of the same and he therefore requests that the circulation of correspondence received at Santiago be forbidden when it comes from or is to go to places beyond Hlayti, That by royal order of September 8th of tbis year it was ordered that pending the. requested report of this section the superior authority of the island and his delegates employ proper vigilance of the service of the cable in question to prevent the offering at the offices of other companies the transmission of messages as if originated in Santiago de Cuba, which really are second in order and come from beyond Hayti and not to tolerate infractions direct or indirect of any of the conditions registered in its concession, That Mr. Juan Fraysinier, representing the company, grantee of the submarin 'e cables between St. Domingo and Curazao and from the latter place to Venezuela submits that the said enterprise has secured the exclusive concessions from the respective governments to place said countries in communication with the entire world connecting its line at the Mola De San Nicolas ilayti with the cable conceded to Count Oksza and contracting with the latter for the transmission of messages coming therefrom, but few days later the circulation of such telegrams was prohibited in the Spanish lines, That Venezuela a nation friendly to Spain, can only be in communication with others by means of the cables belonging to the company he represents connected with tbe one that goes from Santiago de Cuba to Hayti. That the concessions matte by the governments mentioned would be delusive if the tie between both cables were rejected, thereby causing perhaps the suspension, in which case the claimant would have the right to be indemnified by the Spanish government, The said memorial ends with the pretension that the cable from Cuba to Hayti be allowed as well as the other lines connected with the same to receive and transmit all telegrams coming from Venezuela, Curazao & San Domingo on their way
to tlic United States & Europe through the cables of the French company he represents-But the general department of communication states that Hayti, St. Domingo, Curazao and Venezuela cannot be considered places reserved by the Spanish government to the West India and Panama Company because said company had marked three years subject to an extension of one year to establish its telegraphic net which term has expired to an excess inasmuch as it is more than 17 years since, the said company should have laid the cables to said places, and hence the department is of opinion that as a temporary measure the transmission of messages to the said places by the Cuba and Hlayti cable may be permitted because the same not being- reserved to any company no privilege is thereby infringed, That the governor general communicated to the Ministry the request of the government or San Domingo & of the Diplomatic and Consular Corps there accredited to the effect that telegraphic circulation be permitted through the cable from Santiago de Cuba to Hayti. That the Spanish Ambassador in Paris notified the Minister of State of the dispatch he had received from the Minister of the Republic of San Domingo with a view to submit that his country deprived
-until now of all telegraphic connection with the, continents of Europe and America, waits impatiently for the laying of a submarine cable covering such a necessity and that the one conceded to Count Oksza, being laid 'already this grantee alledges that the former cannot be allowed to open the line for public service because the Spanish government had not authorized the opening of the station at Santiago de Cuba, wherefore he prayed in the name of the interest of his country that the government grant the authorization requested, an act which would strengthen the friendly relations between both countries, that with a royal order of 17th of this month the reporting section has received a petition from the repre-sentative of the three English companies stating that in conformity to the concession granted by the Spanish government on 6th August 1868, 6th September of the same year, 31st December 1869 and other later. orders the three enterprises hold the privilege during forty, years of establishing and sustaining,
telegraphic cables between the United States and Cuba, between Cuba and Porto Rico, Panama Mexico and the coasts of South America, forming a complete system of communications, a privilege which would be annulled if the cable between Santiago and Hayti could extend its communications to the coast of South America by means of, those established already between San Domingo and Curazao to Venezuela and possibly obtain later grant with the intention of direct or indirect competition with the West India and that with a view to protect the interests of -the Spanish Government and the rights of the companies whose
* representation they hold, they propose to your Excellency the
definite opening to public service of the cable from Cuba to Hlayti provided the present enterprise and such as may work the same in future bind themselves; first to transmit so long as the aforesaid privilege ex 'ist all their telegraphic correspondence through Cuba, employing the lines of the Sabmarine Cuba and of the International Ocean, the same not receiving for said correspondence more. than what is collected by the West India, Second, not to accept nor transmit directly or indirectly by said cable telegrams for any administration, company or person owners of cables who might in any manner compete with those of the Company West India in whichever country or colony where the latter may have a telegraphic station during the period of, the concession, and third that neither the enterprise that works the cable from Cuba to Hayti nor the West India can compete or injure one another at the places where any one of them may have established telegraphic communications. That together with the same royal order another petition was sent subscribed only by the representative of the Submarine Cuba with the pretension that the laying of a land line between Havana and the place of junction of the cable of IHayti solicited by the French telegraphic submarine company be not acceded to because the object of said line being that through the same be transmitted directly the dispatches of the service of the said cable the, privilege which submarine holds that during forty years telegraphic communications be not established by sea nor by land connecting Santiago, Caimanera or any other point in the province of Santiago de Cuba with Havana, a privilege which in the opinion
of the claimant carries with it the obligation the fulfilment of which is hereby requested of your excellency that the enterprise of the cable from Cuba to Hayti shall deliver all the business of this line to the sub marina Cuba so that the latter be the one to transmit the same to Havana, that the charge d'affaires of France in Spain applied to the State department giving notice that the French telegraphic submarine company whose central office is established at Paris has submitted to said government that the said company owns the submarine telegraphic net which connects Laguayra with Curazao this is land with San Domingo and Porta Plata in this republic with San Nicolas of Hayti and that the Spanish government had authorized the temporary inauguration of the cable granted to Count Oksza but nevertheless telegrams addressed from Europe or from the United States or San Domingo to Lagnayra or Curazao are stopped ini Cuba by the English Company whose cables lands there protesting that the West India had addressed to the Spanish government several reclamations opposing the opening of the cable from Cuba to Hayti considering tbe same as contrary to their privileges and that the French company had called the attention of its government to the injury it suffers by such a state of things. He had the mission to recommend the matter to 'the government of Spain with the view that the said company be made to return to the telegraphic oflces of the cable between Santiago de Cuba and ilayti the messages of transit that the same may receive by their line destined to the Domnican Republic to Carazao or Venezuela and allow the passage of such as are sent to go beyond Hlayti by the cable of Count 'Oksza addressed to the United States or Europe. The antecedents of' the subject being noted with the amplitude it requires, the reporting section goes on to study the conficting aspirations of the companies acting in the proceedings and the question arising in consequence so as to submit the resolution which according to its judgement it is, in rule to adopt. 'The English companies pr6& tend to exert monopoly in the telegraphic service in the'Spanish Antilles and to be the only parties to establish connections between them and wvitlh North and South America resting upon the concessions which. they obtained from the 'Spanish govern-
ment by bringing to mind the text of the agreement and apply-' ing their clauses in the most correct sense all the difficulties are settled by the royal degree of 5th December 1866 it was ordered that the grant provisionally awarded by Royal Order of 19th of June of said year to Mr. William Smith representing the international company to establish at one place in the island of Cuba the terminus of the submarine telegraphic cable which is to start from Florida, United States, be understood to be definite in its nature, and for the term of f orty years for the laying of the cable or cables which going from the United States end in the said island provided that during the same period the government of said country sustain the exclusive concession granted to said enterprise making no use of the reservations which to freely modify are extant in the law approved to that effect and in the preamble of said royal order it was submitted that the government made such a, favored grant because the legislative body of the United States had passed a law granting to the same company exclusive power during fourteen years to lay telegraphic cables in the seas, shoals, islands and coasts over which said nation had jurisdiction which made delusive any perMission given by Spain to other enterprises to execute such service. The section is unacquainted with the legal text referred to yet it does not doubt it, seeing the same stamped in an official document that in the republic of the United States exist a privilege so ample comprising all the islands and coasts of that vast territory, but even it being so since in the 22 years transpired after the Spanish concession the above privilege has expired if the time was not renewed it will be proper for this department to acquire items to make known the true legal situation held today in the United States by the International Ocean as regards the privilege in question so as to be able to appreciate afterwards with some freedom whether the said enterprise adhered strictly to the concession .connecting at Key West before reaching Cuba the cable which starts from Florida and whether the royal decree 13th May 1867 which ultimately fixed at forty years the exclusive license granted to said company annulled the rights which the Spanish govern,ment had, reserved to be used in case the North American privi-
lege ended. But at any rate as the grantee of the cable between, Cuba and Hayti does not ask to extend the commu 'nication of the same to places belonging to the United States & reserved for the International Ocean but claims only to have its rights recognized which it derives from the agreement of St. Petersburg to transmit messages coming through other lines legally established originating from beyond the two termini of said cables and telegrams from or to the North American republic have necessarily to pass by those of the said enterprise. It is evident that the latter so far from being injured in their interests by the laying of the new cable obtains the benefit derived from the increase in telegraphic correspondence. The West India and Panama obtained its grant by royal decree of 28th May 1868 and a schedule of stipulations of the same da te, the enterprise binding itself to lay and work for their account telegraphic cables between the islands of Cuba and Porto iRico and between the first of them and Mexico, Panama and the coasts of the South American continent, also to have them laid and in good working order. That of Cuba and of Porto Rico within two years & those from Cuba to Mexico, Panama and the coasts of South America within three years,, either terms subject to being extended for one additional year if it is proved that breakage 6r unforseen accidents had occurred in the immersion of the cables. Stipulation 8th stated that if the cables were not layed or by causes which depended from the enterprise they should be found useless for service within the time specified the concession should be understood as forfeited with the loss of the sum deposited to be able, to contest the contract. The government bound itself in terms not to allow during forty years the establishment of other cables between the places indicated in the concession between Cuba and Portorico and between Cuba, Mexico and Panama and the coast of the South American Continent excepting in case Iof the forfeiture by the company. The
precise terms of the grant show that the Spanish government had projected as more clearly seen in the preamble of the royal degree 268 February of said year the formation of an important telegraphic web, the centre of which should be the island of Cuba, which would allow to connect the large and small Antilles
with the Peninsula by moans of a -national cable. But the West India altered the conditions of the contract so radically that instead of direct national line between Cuba and Portorico, it established an international one, laying from Jamaica (English dependence) two cables, one to Cuba and another to Portorico. This circumstance and the project initiated and the fact that the cables to Panama and the South American Continent also started from Jamaica and the latter touching besides at several islands situated in those seas created at the department the doubt as to whether the enterprise referred to while executing the service adhered to the schedule or whether failing in the same it had incurred the loss of the patent granted. On thi's subject the Council of State in full session was consulted and the opinion was divided, whereas while the majority maintain ed that the point was resolved by article 7th of the schedule of stipulations, which left to the free choice of the company the route to be followed by the cables destined to connect with one another the places marked, the minority on the contrary judged that the royal decree Iof concessions -and the conditions of the agreement established clearly and positively that the cables had to start from the island of Cuba and terminate with no intermediate points in the itineraryone at Portorico another at Mexico, one at Panama and another at the coast of the South American Continent, and also that the 7th clause only granted free choice of the direction and route most appropriate to be followed by each cable between the, two termini of the respective lines to wit: Between Cuba and Portorico, between Cuba and Panama and between Cuba and the South American Continent. The Council was not apprised of the resolution had on this point then debated but the'section understands that so a radical modification as the one aspired to
by the enterprise in what was fundamental and material in the agreement could only be, made by royal decree which alone could change the terms of the Concession. This was not done, and the neglect to place the cable between Cuba and Mexico establishes evident infractions of the agreement, realized with notable detriment to the National interest, Cuba is left almost
isolated at one end of the line with no direct communication except with Jamaica and Key West, Portorico for the transmission of its telegrams is subjected to a tariff of the highest known, and the establishment of a truly Spanish line between Cuba and the Peninsula is made difficult, as long as the West India privilege be respected., and while the one of the Intermediate scale at Portorico be not possible-and inasmuch as those irregularities according to Stipulation 8th of the Schedule are cause for forfeiture of the privilege the section thinks it must call your excellency's attention to this point, in case you judge it in rule to adopt a resolution similar to that which with the advice of the council of state in full session was adopted in 1876, regarding another modification initiated by royal order, (or Marino)
the concession made to the Cuba Afarigie which this section will take into account afterwards. This last named enterprise was authorized by Decree of the Provisional government of 31st December 1869 to establish and work a Submarine Cable which should connect the City of Santiago de Cuba with Havana landing at Cienfuegos, Bay of Cochinos or Batabano selecting either one of the three. Article 2d of the grant prescribed that the course of said cable should start from the bay of Santiago de Cuba, follow the southern coast of the Island down to the landing point of either of the three above named places selected it will connect with a land line simultaneously established by the grantee,, the terminus of the latter being at the Havana Central station. The government shall not grant to any individual or private enterprise the establishment of any land or submarine, line which may connect'Santiago de Cuba, the landing place of this cable and the Havana Central, only three places of contact which said line shall have in the territory of this Island, and where telegrams of a private nature may be transmitted.
Article 3d. The schedule of stipulations for the laying and
-working of submarine telegraphic cables between the island of Cuba and Portorico and between the former of said Islands, and Mexico Panama and the coasts of South America approved by royal order "of 28th May 1868, is declared to be mutually binding for the government and the grantee. Article 8th according to the
clear terms this concession has no other privilege then that of
working the cable conceded, and that during forty years no person or enterprise shall connect between one another by means of land or maritime lines the places pointed out in the concession, viz: The city of Santiago de Cuba, the intermediate' point of landing and the Havana Central station the grantee selected IBatabano to be the third point in the island where the cable was to rest, but soon after he applied for permission to touch also at Cienfuegos and establish there a telegraphic station, which was successfully denied and c onceded by royal order of 9th April 1870, and 13th July and 10th October 1874-but the government newly considered the said resolutions and by royal decree of silth August 1876 it was declared that the royal orders mentioned had not produced any legal effect in the change they caused in the essential basis of the concession, but showing special favor, and considering that the expense of the laying of the cable and its landing in Cienfuegos had been incurred, the said 4th additional touching
-place with the island would be tolerated so long as the government or governor general of Cuba should not deem it inexpedient. Yet the government always retained the liberty to establish for its service lines parallel to the said one and also to grant the laying and working of others which starting from places other than the ones named in the concession and the royal decree which enlarged it may reach some one of them without' connecting with one another that is to say that from any place on the island where the Cuba submarine cable does not touch telegraphic lines may be started to go to the city of Santiago de Cuba, to Cienfuegos, to Batabano or to Havana. The concession of the cable between Cuba and Hayti, as expressed in the commencement of this consultation, involves two restrictions; the 8th clause says It is strictly confined to ilayti," so as not to infringe the privileges accorded to the International Ocean" and the West India Panama and the 9th clause provides that it the grantee should desire to extend the communication to one or more places he shall not be able to do so without obtaining first the permission of the Spanish government. It was likewise
declared by the nineteenth clause that said cable remained subject to the rules fixed at the international agreement of St. Petersburg as well as to other rules that may be established with the intervention of Spain. The grantee complied Aith these conditions and the cabl 'e ends-at St. Nicholas of Hayti without extending its course to any other place, and therefore without touching at those which 'were reserved by the Spanish government for the English companies according to the official reports and other items extant in the proceedings. If Venezuela, the Low countries, St. Domingo and ilayti, favoring their own interest, have established telegraphic cables and land lines which connect Laguayra, Ourazao, Porto Plata and St. Nicholas, and, in order to be in communication with the United States and Europe, look to the Cuba and Hayti cables, the only line open at present for that purpose, Spain is bound to respect the sovereign acts 'of friendly nations, and not to oppose the transmission of messages by said cable coming from or going to said places, thus fulfilling the above-mentioned agreement by which the contracting parties recognize the rights of every individualto correspond through the International Telegraphs, saving the right to stop such messages as are mentioned in the 7th clause, and this is set dbwn as the most sensible judgment since, as this Section believes to have shown, neither has the IWest India the right to have a privilege respected the conditions of which it has not complied with, nor, were the agreement to be supposed in force, as having filled all its obligations, said enterprise could not demand that the Spanish government curtail and obstruct the telegraphic communications which other nations have established in their own territory and for which they endeavor to find an outlet by means of an International Cable, which is bound to render this service. Besides the cable mentioned cannot be subject to the restrictions imagined for the one between Cuba and Nassau, a project which appears to be given up, because without discussing at this moment the rights of the Spanish government, to restrict (although indirectly) the right which other nations possess to place some of their territories in telegraphic communication, no doubt, by. the incentive of the messages to and, from the great Antille, the conclusion is always arrived at, 'that the
limitation imposed to the cable from Cuba to Nassau, viz : that it should cease to work the moment that another should be laid from the latter place to the United States, was untimely and wanting in proper basis to protect the privilege granted to the 11 International Ocean;" for the reason that if the latter really obtained from the United States the exclusive right during 14 years to connect telegraph cables in all the coasts of the North, American Union, and said privilege has been extended in time, it is clear that no other enterprise can place cables between the TTuited States and Nassau; and on the contrary if the former had been forfeited for any cause as the prohibition imposed by the Spanish government could not be applied further than at the said English dependence the absurd conclusion would be arrived at that the withdrawal or support of a concession made by the Spanish government would depend on the acts of strange governments, acts over which Spain could exercise no influence to prevent injury which by such a course would accrue to the interest of Cuba. On the other hand the Nassau cable was being projected and the petitioner stated at once that it was the intention to extend the same to the United States; and the government might have refused the concession or subjected it to the restrictions it deemed expedient, giving no occasion to assail thereby pre-existing rights, and bring forth claims for damages. The cable to Hayti is a grant perfect in its nature, which was ruled by stipulations settled in advance, and no additional can be imposed calculated to restoring the
rights conceded unless the enterprise which works the same be previously, indemnified. Even the English companies have to a certain extent recognized such a view of the legal question, because in the petition recently addressed to your Excellency they propose that the cable from Cuba to Hayti be definitely opened so that it may transmit messages coming from beyond their termini stations, provided that the present company and its successors bind themselves to deliver all their -telegraphic correspondence to the cables of the 11 Cuba Submarine and of the International Ocean," as well as not to transmit any telegram for companies or persons owning cables who may exercise
competition in any manner with those which the West India and Panama" may have. established in any part of the world. The English companies, it is thus seen, advocate the monopoly of the telegraphic communications established by them in the Sea of the Antilles, with the further pretension that the Spanish government adjust its resolutions in this delicate matter to such measures as they believe may contribute to increase and even extend said monopoly. But inasmuch as the administration is powerless to impose on the grantee of the cable between Cuba and Hayti other obligations than those set down in the contract these are the only ones to be studied as contrasting with the privileges to which the other companies appeal in order to decide whether said cable may or may not in conformity with the international agreement before named transmit messages coming from or going beyond the termini of -its line. Reassuming therefore what has been stated, the section is of opinion ; first; that the International Company only acquired the exclusive authorization during forty years to lay and work submarine telegraph cables between the United and Cuba. a privilege which until now has not been infringed by the cable from Cuba to Hayti, since the latter line may not transmit messages to and from the North American republic without passing the same ,unavoidably through the Cables of the former enterprise. 2d, that the "WIIVest India and Panama was authorized by royal decree of 28th May 1868, and by the schedule of stipulations of same date, to lay and work during forty years telegraphic cables* between Cuba and Porto Rico, and between Cuba and Mexico and Panama and the coasts of the South American continent, and that not having strictly fulfilled the conditions of the contract, as stated in the body of this consultation, it is incumbent on your Excellency to weigh the circumstances and determine whether the opportunity is now reached to restore validity & force to the original decree of concession, the only one regulating in due form the judicial relations of the administration and the enterprise and likewise to declare that royal orders which may have changed the essential basis of the concession, have not carried with them any legal effect in the manner in which it was done in an analogous case in accordance with the council of states advice.
'Given in full session with reference to the Cuba Submarine by Royal decree of 6th August 1876. Confirmed by Royal Decree of 6th July 1878.
3rd. That so long as the privilege claimed by the West India be not withdrawn, or declared to have been forfeited, the latter is the only party possessing the right to prevent the laying and working telegraphic'cables between Cuba and portorico, and between the first named and the other places pointed out in the concession, with the exception of Mexico, the line thereto being accorded on the 13th of last August to Mr. Augusto Ghirlande.
4th. That the Cuba Submarine Company holds the privilege during forty years by which no other enterprise, or individual, can place in telegraphic communication, by land or sea, the four points marked in the concession, and Royal decree expanding the same, namely: the city of Santiago de Cuba, Cienfuegos, Batabano and the Havana Central station, placing parallel lines to connect them with one another, but it cannot prevent a cable reaching the coasts of Cuba from communicating with Havana or another place on the island provided it does not touch at the City of Santiago nor at any one of the places of landing reserved to the Cuba submarine, and 5th that the grantee or the cable from Cuba to Hayti,.from what appears in the proceedings, has conformed and adhered to the conditions of the concession, because said cable is not prolonged beyond Hayti, and the same being an international telegraphic line, bound by the same government to the agreement of St. Petersburg, it is not possible without violating it and harming legitimate interests of friendly nations to prevent the circulation through the said line despatches started from places beyond its two termini stations, it being proper, in consequence, to authorize at once the definite opening of the same for International service, and to permit it to connect with land telegraphic lines which the government may have established not reserved to the Cuba submarine by its concession, and the King (w. G. g) having essented (and the Queen Regent in his name) to what is stated in the preinserted consultation by Royal order I communicate the same to your Excellency for information and the effects following therefrom-and the fulfillment being
determined by his Excellency under date of 27 February last, it, is made public in the Gazette for general understanding.
Havana 4 March 1889
The Secretary of the General Government.
Signed- ENRIQUE FERNANDEZ.
Dated KEY WEST, FLA., April 7th, 1898. To CLARK, V. P., New York:
Arrondo says inform Mr. Clark that the local government agreeable with Royal order received from Madrid some weeks ago has decreed that the ilayti Co. should confine its traffic to messages to Hayti, Santo Domingo, Curazoa, Laguira, Venezuela. Points reserved to the International Ocean, Cuba Submarine and West India & Panama Co's, through which lines must exclusively be transmitted the messages to and from the United States and Europe as well as through traffic for the United States emanating at the West India & Panama Stations. Mendoza has been officially notified.
NEW YORK, April 8, 1898.
To CH1AuviN, London:
Am advised from Havana that Decree has been published there confining the traffic of the ilayti Co. to messages to Hayti, San Domingo, Curazoa, Laguira, and Venezuela, the Cuban traffic with United States and Europe being exclusive to International Ocean, Cuba Submarine and West India lines. Please inform the latter companies.
BEFORE THE ATTORNEY-GENERAL OF THE UNITED STATES.
IN THE MATTER OF THE APPLICATION OF THE COMMERCIAL
CABLE CO,-P.ANY OF CUBA FOR PERMISSION To LAND A
CABLE IN CUBA.
Brief for the Western Union Telegraph Company,
Lessee of the International Ocean Cable Telegraph Company of New York.
Independently of any question as to the legal rights of the .International Ocean Cable Company, under its grant of an exclusive privilege and franchise by Spain, which constitutes an executed contract, and not subject to be recalled or impaired, it is. at least, extremely doubtful whether the Executive. Departmient of our Government possesses now the power to grant permits for the landing and operation in Cuba of telegraphic cables between this country and that island.
By Article I of the Treaty with SpainS" Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon the evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property."
T'he American Commissioners expressly refused to agree that the United States should "take the sovereignty of the island,"' and they were willing only to stipulate that, so long as the occupation of the island by the United States continued, the United States would assume and *perform "the obligations that
may under international law result from the fact of its occupation for the protection of life and property."
"The American Commissioners have never denied that the island will, upon its evacuation by the Spanish forces, come into the possession of the authorities of the United States; but this possession is by no means to be confounded with the soverei gnty of the island, which the United States has long since declared to Spain an intention not to assume. The United States will take possession of the island for the purpose of pacifying it, but not as titular sovereign.
Treaty and Protocols, pp. 28, 47, 98.
The power of the Executive du ring the period of the treaty "occupation" of the Island may be supposed to be generally defined, in the absence, at least, of congressional legislation, by the principles of public law in respect to the military occ-upation ".of territory which the occupying sovereign has no intention of finally and definitely appropriating. Those principles constitute well-known chapters of many of the standard works on International Law (Hall, Int. Law, 4th ed., ch. IV, p. 481 et seq.; 2 Halleck, Int. Law, c. 33; 3 Calvo, Jut. Law, 112-235; Wharton, Digest, 3).
Formerly, as Mr. Hall states, "occupation, which is the momentary detention of property, was confused with conquest, which is the definite appropriation of it," but it seems to be agreed that in the modern practice and law of nations, the occupying power is, as Mr. Hall says, "forbidden, as a general rule, to vary or suspend laws affecting property and private personal relations, or which regulate the moral order of the community; and it is observed by another writer that military occupation is now regarded as simply a temporary holding by force, conferring in itself no proprietary rights, but merely conveying a particular or special administrative authority" (Glenn,, Int. Law, p. 218).
Under our system, one limitation or restriction upon the rights of military occupation exercisable by the Executive was recognized in Jecicer vs. Montgomery (13 How., 498) : neither the President nor any military officer can establish a court in a conquered country, and authorize it to decide upon the, rights of
the United States, or of individuals, in prize cases, nor to administer tbe law of nations; and Chief Justice Taney said: "1The courts established or sanctioned in Mexico during the war by the commanders of the American forces, were nothing -more than the agents of the. military power, to assist it in preserving order in the conquered territory, and to protect the inhabitants in their persons and property while it was occupied by the American arms."~
The ground of the decision was that the power to establish judicial tribunals was legislative and pertained to Congress, and, therefore, could not be exercised by the Executive in the conquered territory during the period of military occupation.
It is conceded in all the discussions tbat the authority of the Executive branch of the Government to grant permission to land a telegraphic cable on the coast of the United States -is exercised only in the absence of legislation by Congress regulatig the subject, and concessions of the privilege have been always made subject to such action by Congress in the matter as it may at any time take.
The authority has not been regarded as directly inhering in the Executive department of the Government, but it has been deemed rather an indirect consequence of the power of the Executive to prevent the landing of such a telegraphic line on our shores when deemed injurious to the interests of the country.
Secretaries Gresham and Olney, both of whom were eminent lawyers, whatever may be the difference of opinion in respect to them as statesmen, seem to have thought that it did not pertain to the Executive branch of the Government 'as such to license the landing of telegraphic cables on our own coasts.
The recent very able opinion of Solicitor General Richards is as satisfactory a solution of the difficulties involved in the question, so far as our own coasts are concerned, as could well be presented.
Under the Constitution Congress alone has power to regulate commerce with foreign nations. Commerce includes intercourse and not traffic alone, and-it is said that communication
-by- telegraph is commerce itself (Lelo-up vs. Port of Mobile, 127
U. S., 640). Communication by telegraphic cable between this and a foreign country is thus under the controlling power of Congress. Cuba is a foreign country (Fleming vs. Page, 9 How., 603).
Moreover, under our law, the general doctrine is that the right to exercise corporate powers and franchises by a foreign corporation, depends upon the legislative authority of the State where such powers and franchises are to be exercised (Paul vs. Virginia, 8 Wall., 168; Bank of Augusta vs. Earle, 13 Pet., 514).
It seems to us, apart from the effect of the Spanish decree and contract of December 6, 1866, that it is at least a doubtful proposition that the Executive branch: of the Government may in the present situation of Cuba, without the authority of Congress, grant concessions to cable companies to- land and operate their lines on the shores and in the territorial waters of that island, as the act is essentially legislative, not executive, in its nature.
But whatever powers or rights of sovereignty are exercisalile in Cuba by the Executive branch of our Government, that Department is without authority to grant a permit to land and operate in Cuba a telegraphic cable between this country and that Island, and therebyj impair and destroy the vested contract rights of' this American Company under its grant and concession by the Government of Spain.
Dr. Wharton in his Digest, 232, gives the following from the diplomatic correspondence of Mr. Webster and Mr. Cass:
"In all civilized countries instruments of this description (charters) are considered as sacred, and the welfare of the public and the interests of the government itself are deemed to' depend upon their being so held. If the great public objects for which charters are granted and the piaeitrssivle in them were liable to be sacrificed at thre leresfthe domolv-
,nant authority, no authority in the State which might succeed it could cxpcct to accomplish a public object by similar means."
Mr. Webstcr to Mr. Letcher, August 18, 1851.
"What the United States demand is, that in all cases where their citizens have entered into contracts with the proper Nicaraguan authorities, and questions have arisen or shall arise respecting the fidelity of their execution, no declaration of forfeiture, either past or to come, shall possess any binding force unless pronounced in conformity with the provisions of the contract, if there be any or if there is no provision for that purpose, then unless there hasobeen a fair and impartial investigation in such manner as to satisfy the United States that the proceeding has been just, and that the decision ought to be submitted to. Without some security of this kind this Government will consider itself warranted, whenever a proper case arises, in interposing such means as it may think justifiable on behalf of its citizens who may have been or who may be injured by such unjust assumption of power."~
Mr. Cass to Mr. Lamar, July 25, 1858.
It is a doctrine of the public law recognized by all authorities, institutional and judicial, that as the new State merely displaces the former sovereignty, it acquires,. even by cession or complete conquest, no claim or title whatever to private property, whether of individuals, municipalities, or corporations, and as it assumes the duties and obligations of the former sovereign with respect to private property, it is bound to recognize and protect all rights of that character within such acquired territory.
U. S. vs. Perchman, 7 Pet., 51, 86.
Mutual Ass. Society vs. Watts, 1 Wh., 279, 282.
Soulard vs. U. S.,1 4 Pet., 513.
Mitchel vs. U. S., 9 Pet., 733.
*Choutean's Heirs vs. U. S., 9 Pet., 137.
Leitensdorf vs. Webb, 20 How., 176.
1 Wharton's Digest, 4.
In Cessna vs. U. S. (169 U. S., 186) the Supreme Court said :
"It is the duty of a nation, receiving a cession of territory
to respect all rights of -property as those rights were recognized by the nation making the cession."
In the territory conquered by Chili from Bolivia in the war of 1879-'82 citizens of the United States had acquired certain rights from the Bolivian government, which after the conquest the Chilian government was disposed not to respect. Dr.
Wharton cites the instructions of Mr. Bayard to Mr. Roberts, March 20, 1886, in which the following was declared as the true principle
I" But the right of conquest cannot affect the property of private persons; war being only a relation of State to State, it follows that one of the belligerents who makes conquest of the territory of the other cannot acquire more rights than the one for whom he is substituted; and that thus, as the invaded or conquered State did not possess any right over private property, so also the invader or couquerer cannot legitimately exercise any right over that property. Such is today the public law of Europe, whose nations have corrected the barbarism or ancient practice which places private as well as public property under military law. (C. Mass6, Rapports du droit des gens avec le droit civil, vol. 1, p. 123.)"
"The Government of the United States, therefore, holds that titles derived from a duly constituted prior foreign government to which it has succeeded, are 'consecrated by the law of nations' even as against titles claimed under its own subsequent laws."
The pretention of the Chilian government was held in that case to strike "at that principle of the historical municipal continuity of government which is at the basis of international law."
This principle is discussed at length in chapter VII of Phillimore on International Law, where the author cites the judgment of Mr. Justice Story in Tierrett vs. Taylor (9 Cr. 50):
" It has been asserted as a principle of the common law, that the division of an empire creates, no forfeiture of previously vested rights of property, and this principle is equally consonant with the common sense of mankind, and the maxims of eternal justice."
A change of government gives the State no new powers or, rights; it absolves it from none of its duties or obligations. These ever remain unchanged.
The Spanish concession and contract of December 6, 1866, being binding under the recognized principles of International Law cannot be abrogated or destroyed by the action of the authorities of the United States.
This principle, thus consecrated by the law of nations, is embodied and declared in Article VIII1 of our Treaty with S5pain, which was distinctly intended and framed for the protection of all private property and rights of property in Cuba against impairment or injury by any succeeding government in Cuba.
The Article declares:
"1And it is hereby declared that the relinquishment or cession, as the case may be, to which the. preceding paragraph refers, cannot in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other association having legal capacity to acquire and possess property- in the aforesaid territories renounced or ceded, or of private individuals, of whatsoever nationality such individuals may be."
The contract by the Spanish Government is binding upon the United States and Cuba under this provision of the Treaty, as well as under the principles of International Law.
The concession in question was not a mere privilege or license to land cables, but in the nature of a solemn contract upon a valuable consideration vesting the right to lay and maintain cables. 'Phe Spanish Government reserved no right to revoke, annul, or impair the concession, except upon failure to comply with certain conditions. 'the naming of such conditions in the contract excludes the idea of the existence of the right to revoke at will, which is not reserved or named in the instrument.
By the provisions of this Eighth Article of the Treaty it was
in effect agreed between Spain and the 'United States that the concession should continue, notwithstanding the war, with the, same force and effect as if no war had ever occurred, and no relinquishment of Spanish sovereignty or territory had ever been made.
The Company, therefore, has the same right, in view of this provision of the Treaty, against the United States that it originally had against Spain, and if Spain could not revoke or impair the concession at will, then the United States cannot do so.
If the United States cannot do so, then clearly the Executive Department of the Government is without authority to cancel, annul, defeat, or impair the concession. The Treaty imposes a limitation upon the power of the Executive IDepartmnt to act in the matter.
Even if the right of the International Ocean Telegraph Company were of doubtful validity, (which it is not,) yet the United States Government, while the mere temporary custodian of the territory of Cuba, should not by Executive order in effect destroy this concession by granting the privilege asked for. To do so, in response to the demand of the applicant, is substantially to decree a forfeiture of the right of the International Ocean Company. Such action was certainly never contemplated by the Eighth Article of the Treaty. In fact, it is expressly excluded and inhibited by that Article.
SThat the grant of the exclusive privilege referred to by the Spanish Government was a lawful contract, and not subject to be recalled, is unquestionable under the principles of our own public jurisprudence.
The grant was not of any monopoly, in the legal sense, as it took nothing from the public which pertained to them of common right, and, it was based upon important and valuable con-. siderations in the expenditure and risk of capital in a precarious
undertaking, which have been fully executed and performed by the grantees.
Slaughter House Cases, 16 Wall., 36.
An irrepealable contract giving exclusive privileges with reference to lighting a city is valid, and cannot be recalled.
New Orleans Gas Co. vs. Louisiana Light Co., 115 UI. S.,
Louisville Gas Co. vs. Citizens' Gas Co., 115 U. S., 603.
So as to the privilege of furnishing water.
New Orleans Water Works vs. Rivers, 115 UI. S., 674.
St. Tammany Water Works vs. New Orleans Water
Works, 1*20 11. -S. 64.
These cases have recently been affirmed in Walla Walla vs. Walla Wallat W4ater Co. (172 U. S., 9), where the Supreme Court said:
"The grant of a right to supply gas or water to a municipality and its inhabitants is a grant of a franchise vested in the State, in consideration of the performance of a public service, and after performance by the grantee is a contract protected by the Constitution of the United States against State legislation to impair it."
In reference to such concessions the Supreme Court has said:, "The purposes to h e attained are generally beyond the ability o[ individual enterprise, and can only be accomplished through the aid of associated wealth. This will not be risked unless privileges are given and securities furnished in an act of incorporation. The wants of the public are often so imperative that a duty is imposed .on the Government to provide them; and as experience has proved that a State should not directly attempt to do this, it is necessary to confer on others the faculty of doing what the sovereign power is unwilling to undertake. The legislature, therefore, says to the public-spirited citizens, 'if you will embark, with your time, money, and skill, in an en terprise which will accommodate the public necessities, we will grant you, for a limited period or in perpetuity, privileges that will justify the expenditure of your money, and the employ-
ment of your time and skill.' Such a grant is a contract, with mutual considerations, and justice and good policy, alike require that the protection of the law should be assured to it."
The Binghamton Bridge, 3 Wall., 51.
West River Bridge Co. vs. Dix, 6 How., 507, 531.
In N. 0. Water Works Co. vs. Rivers (supra) the Supreme Court said:
"The permission given to the appellee by the city to lay
pie in the street for the purpose of conveying water to his hotel, is plainly in derogation of the State's grant to the appellant; for, if that body can accord such a use of the public ways to him, it may grant a like use to all other citizens and to corp orations of every kind, thereby materially diminishing, if not destroying, the value of the plaintiff's, contract, upon the, faith of which it has expended large sums of money."
It is respectfully submitted, therefore, that under the Treaty with Spain, as well as under the law of nations, the obligations of this contract are absolutely protected against impairment by the grant of such a permission as that applied for by the Commercial Cable Company.
International Law and the Treaty are integral parts of the law of the land (5 Op. (Appendix), 692; The Kereide, 9 Cranch, 388).
J. HTJELEY ASHTON,
OPINION OF THE ATTORNEY-GENERAL, DELIVERED TO
THE SECRETARY OF WAR, MARCH 25, 1899, AS TO THE APPLICATION OF THE COMMERCIAL CABLE COMPANY FOR PERMISSION TO LAND A CABLE IN
C'UBA AND PORTO RICO.
DEPARTME NT OF JUSTICE,
Was~hington, D. C., March 25, 1899.
The SECRETARY OF WAR.
Sin: I have the honor to acknowledge receipt of a communication from you, under date of February 27, 1899, with which you inclose to inc an application made by the Commercial Cable Company of the United States for permission to land a submarine cable in Cuba and Porto Rico for the purpose of effecting cable communication between those islands and the United States, as to which you request my opinion in respect to the power of the Secretary of War in the premises.
The views of this Department upon the subject of landing foreign submarine cables upon the territory of the United States are fully expressed in the opinion of the Solicitor-General, acting as AttorneyGeneral, under date of January 18,1898, to which you are respectfully referred. The substance of this opinion is that the grounding of a cable upon the soil of the United States, with the intention of connecting our territory with foreign territory by that means, is a matter which is under the sovereign control of this Government, such control to be exercised by Congress, provided it legislates upon the subject, and, in the absence of such legislation, to be regulated and controlled by the Executive Department of the Government.
Congress having failed to take jurisdiction and pass any statutes governing the subject, the matter has heretofore been regulated by Executive permission, revocable either at the will of the President or by subsequent legislation by Congress.
So far as the application of the Commercial CableCompany for leave to land its cable in the United States is concerned, the matter is properly, under the practice heretofore established, within the jurisdiction and control of the Department of State, acting for the President. So far as* the landing of a cable in the island of Cuba is concerned, the subject is under the control of the War Department by reason of the fact that the United States is, exercising in the island of Cuba admin-
istration under the law of belligerent right, its occupancy being of a military nature and merely temporary.
Iii all instances heretofore Where application has been made to this Government, exercising the temporary control and government of the island of Cuba, for grants or concessions which usually flow from the depositary of sovereign power, the Executive Departments have taken the ground that under the circumstances by which the United States came into temporary administration of affairs in Cuba, and in vie Iw of the fact that it is the declared purpose of the United States, when a stable government shall have been there established, to retire from the island'an d leave the governm ent thereof to the inhabitants, it would be inexpedient to grant such applications except in case of. absolute necessity.
In an opinion rendered to you on January 19, 1899, relative to the claim of Michael J. Dady & Company as to certain contractual relations between them and the city of Havana, relative to sewering aiid paving the said city, I said:
The importance of the matter involved and the difficulty of understanding the rights and interests of the people of Havana with reference thereto are sufficient and conclusive reasons for such a course. The administration of the United States in Cuba is of a military nature, and merely temporary. No action binding the island or any of its municipalities to large expenditures and continuing debt ought to be made except upon grounds of immediate necessity, which in this case do not appear to be present.
Whether the claims of Dady & Co. are well founded, whether they are sufficiently complete to constitute a contractual relation, and whether the authorities of Havana ought ultimately to recognize and confirm them are questions which ought to be left to the decision of the authorities of Havana, not. while that city is in the disturbed and partially disorganized condition consequent upon a recent war and a change of national sovereignty, but when it shall hereafter have resumed its nor-mal functions under such conditions of order and tranquillity as will permit its antliorities to deal intelligently and justly with the subject.
By executive order promulgated by the general commanding the United States forces -in Cuba all grants and concessions of franchises and similar rights have been forbidden to be made by any authority in the islands except upon the approval of the Secretary of War.
This cautions and conservative policy is sustained by considerations of prudence, and by a proper regard for the reversionary rights of the future government of the island of Cuba. In affirmation of the execu-, tive policy so declared and followed, Congress, by act approved March 3, 1899, directed that no property, franchises, or concessions of any kind whatever shall be granted by the United States, or by any military or other authority whatever, in the island of Cuba during the occupation thereof by the United States. See act making appropria-
tion for support of the Regular and Volunteer Army for the fiscal year ending Juneo 30, 1900, section 2.
Wh' 12oti~ncaning to concede that Congress, by legislative act, has power to restrain or control the proper exercise of the powers of the Commander in Chief of the Army and Navy of the United States, occup)ying, under the law of belligerent right, foreign territory-a question that mnay well be open to doubt-yet the expressed will and desire of the Congress, conforming as it does to the previously established policy and practice of the Executive Departments, is entitled to the respect of the Execntive Departments, and ought to be followed, unless some high necessity requires otherwise.
You are therefore advised t hat it would be inexpedient, under all the circumstances, to grant permission to the applicant in this ease to land its cable upon the soil of Cuba.
Inasmuch as the permission to land its cable upon the soil of Porto Rico seems to depend upon the grant of a similar right as to the island of Cuba, time same order should be made with reference to that part of the application, although the circumstances under which the United States retains control'and government of the two islands are materially different.
The conclusion which I have arrived at renders it unnecessary for me to discuss or decide the objections raised on behalf of the Western. Union Telegraph Company, lessee of the International Cable Com.pany of New York, which companies claim an exclusive grant under a concession from Spain made in 1867, which exclusive grant, it is claimed, has not yet expired.
JOHN W. GRIGGS,
OPINION OF THE ATTORNEY-GENERAL, DELIVERED TO
THE SECRETARY OF WAR, JUNE 15, 1899, AS TO A RECONSIDERATION OF THE ORDER OF THlE WAR DEPARTMENT TO GENERAL BROOKE, OW&T 27, 1899, DIRECTING HIM TO PREVENT THE LANDING OF THE COMMERCIAL CABLE COMPANY'S CABLE
DEPARTMENT OF JUSTICE,
Washington, D. C., June 15, 1899.
The SECRETARY OF WAR:
SmR: I am in receipt, by reference from you, of a letter from Mr. Mackay, president of the Commercial Cable Company of Cuba, dated May 31, 1899, asking for a reconsideration of the order made by the War Department to General Brooke on May 27,1899, directing him to prevent the landing, by the Commercial Cable Company of Cuba, of a proposed cable to Cuba, to connect that island with the United States. You request my opinion as to the power of the War Department in the premises.
On February 27, 1899, application was made by the Commercial Cable Company of the United States for permission to land a submarine cable in Cuba and Porto Rico, for the purpose of effecting cable communication between those islands and the United States. This application was by you referred to me for an opinion in respect to the power of the Secretary of War in the premises. Under date of March 25, 1899, I advised you fully upon the subject, and you are respectfully referred to that opinion and to what is Said therein with reference to this subject. Among other things, I said in that commnunication that the opinion of this Department is and has been that the grounding of a cable upon the soil of the United States, with the intention of connecting our territory with foreign territory by that means, is a matter which is under the sovereign control of .this Govermnent, such Control to be exercised by Congress, but in the absence of Congressional action, to be regulated and controlled by the executive department of the Government.
The same principle is applicable to the island of Cuba,, and the grounding of a c able upon the soil of that island, to connect it with a foreign country, can not be done and maintained in opposition to the will of the government which exercises sovereign power in the island. That power at the present time is the United States, and therefore the authorities of the United States have full power, in their discretion, to prevent by all necessary means the grounding of a cable intended to
connect the island of Cuba with the United States or any other country. If the Commercial Cable Company of Cuba, in disregard of the instkTictidns~of the War Department and against its will, carries out its proclaimed purpose of landing its cable upon the island of Cuba to connect that island with the United States, you would be justified in using such force as is necessary to remove and disrupt it.
The foregoing sufficiently answers your request for my legal opinion as to your power in the premises. *There are, however, some observations in the letter of Mr. Mackay which indicate on his part such a misunderstanding of private rights and public duties in con 'nection with this subject that I think it may be useful to refer to some of them.
As tending to justify his intention of creating, either with or without permission, a new line of cable communication between Cuba and the United States, he adverts to the fact that the Western Union Telegraph Comnpany has now and for years has had a monopoly of the, cable communication between these countries.
This Department has not assumed to pass upon the validity of the exclusive right which the Western Union Telegraph Company and its leased: companies claim. They have formally notified the authorities of the United States of their claim under a concession granted by Spain, alleged to continue for forty years and not yet expired. The mere fact that the Western Union Telegraph Company is-enjoying, under a grant of exclusive right, what amounts to a monopoly is no reason of itself why it should be deprived of its concession. It i 's easy to say that mnonopolies'are odi 'ous, but there are concessions which amount to monopolies which are lawful, and can not be disturbed except by a violation of public faith. Trhe, laying and operation of cables, especially a quarter of a century ago, were attended with great expense and risk, and it was a very common thing for different nations, including the United States, to grant exclusive concessions for a term of years to companies that would undertake to invest the necessary capital aird carry on such enterprises. With the chances of success the concessiomiaries took also the hazard of failure and loss. If loss ensued, they bore it; if success and profit, it was deemed proper to secure for a limited period to those who had risked the venture the enjoyment of the fruits of their enterprise, and niot to allow other competitors who, had not shared the risk to come in and take a share of tbe benefits. With the wisdom of such arrangements for exclusive franchises the Executive Departmnents are not concerned. The grants are made in this country by Congress, and ini other countries by the constituted sovereign authority. It is the duty of those who administer the Government to deal with the conditions as they find them, and to see that legal rights of every nature -are respected.
The granting of such concessions an 'd their operation have, in many instances, been of great advantage to cornmierce and to the countries from which the concessions were derived. To show the prevalence of this policy among different nations, I quote the following list of exclusive cable right-, granted by different sovereignities: .England .-Excl usive rights have been granted or approved for the establishment of cables between Great Britain, France, Belgium, Holland, Germany, Norway, Sweden, Denmark, Spain, and Portugal.
Newfoundland.-An exclusive right for landing English cables was granted by Newfoundland and ratified by the British Government.
France.-An exclusive right for the establishment of an Atlantic cable connecting with the island of St. Pierre, off the coast of Nova Scotia. Preferential guaranties and subsidies for French telegraphic traffic to the French cables connecting with the United States, Haiti, and French West India Islands.
Spain.-Exclusive rights for the establishment of cables to the Canary Islands, Africa, and Brazil; also connecting Cuba with the United States, and Cuba with other West India islands.
Portugal.-Exclusive rights for the cables connecting with Great Britain; also Brazil and the Azores.
Brazil.-Exclusive rights for connecting Brazil with the United States; also with Africa, Spain, and Portugal. Exclusive rights covering the whole cost of Brazil.
Peru.-Exclusive rights for cables northward from Peru.
E~cuador.-.Exclusive rights covering the whole shore of Ecuador.
UnTited States of Colombia.-Exclusive rights for the establishment of cables southward from the Isthmus of Panama.
Mexico.-Exclusive rights for the establishment of cables on the coast of the Gulf of Mexico and Pacific coast of Mexico.
Japan.-Exclusive rights for cables connfeeting Japan with China 'and Russia.
The United States.-The exclusive right for connecting the United States (coast of Florida) with Cuba and other West India islands, by act of Congress approved May 5, 1866.
Concessions of this kind, which carry with them exclusive rights for a period of years, constitute property of which the concessionary can no more be deprived arbitrarily and without lawful reason than it can be deprived of its personal tangible assets. -In a case in the Supreme Court of the United States (1 Wall., 352), Mr. Justice Field said :
The United States have desired to act as a great nation, not seeking, in extending their authority over the ceded country, to enforce forfeitures, but to afford protection and security to all just rights which could have been claimed from the government they superseded.
If, therefore, the Western Union Telegraph Company has an exclusive grant applicable to Cuba for cable rights, which grant has not expired, it would be violative of all principles ofjustice to destroy its exclusive right by granting competing privileges to another cornpany.
It is suggested, however, in Mr. Mackay's letter, that the grant which the Western Union Telegraph Company now holds, by lease orassignment, was obtained by fraud practiced on the Government of Spain, and that for thiat reason its grant is void.
Such an allegation can not be fairly and justly tried upon a proceeding like this. Neither the War Department nor the Department of Justice has power to summon witnesses or to give a judgment upon this question. It is essentially a question for judicial examination and decision, and to determine such a matter in a proceeding of this kind would not only be irregular, but contrary to the ordinary rules and procedure practiced in such cases. Vested rights which are property ought not to be taken from anyone, even upon charges of fraud, except by due process of law. Executive action by the War Department applied to subjects like this is not due process of law.
Mr. Mackay further submits that the tremendous power of the Government should not be exercised against us." It is the function of the Government to prevent, so far as possible, all infringement of the vested rights of others. Mr. Mackay, through his company, proposes to set up a competitive cable line, which he concedes will greatly injure the business of the Western Union Company, and although the latter company produces a grant which, on its face, gives it an exclusive right for a period which has not expired, he requests this Government to stand idly by while he does, with the acquiescence of the United States, the very thing which the Government of Spain, our predecessor in the sovereignty of Cuba, solemnly agreed not to do or permit to be done.
I do not think that controversies as to grants and franchises derived from Spain, but exercisable within the island of Cuba or other~ islands derived by the United States from Spain, ought to be precipitated to a decision in the present unsettled condition that prevails in those islands. It is better to preserve, in all eases of doubt and difficulty, the present status until the full restoration, of the civil r6gime and the establishment of permanent governments under which the rights of all can be duly and deliberately determined.
Very respectfully,JONW GRGS
UIV. OF FLORIDA 3 1262 04276 9421
WY Th E m FLORIDA LIBWUWrS..