"The question is really governed by general principles of international law as to the effect of conquest, and therefore Her Majesty's Government do not contend that the use by the United States Government of the company's cable, without availing themselves of the Government rights reserved by the concessions (such as those of free telegrams, etc.), would of itself render the concessions binding on them. But the use of the cable by the United States Government may fairly be mentioned as illustrating the local nature of obligations and as strengthening the claim put forward by the company, and which Her Majesty's Government consider to be well founded.

"Although Her Majesty's Government trust that there is no real ground for the apprehensions of the company, the undersigned is desirous to make this representation to the United States Government on the subject.”

The ambassador's note and the enclosed pro memoria were communicated to the Attorney-General for his consideration."

Feb. 14, 1899, the ambassador, referring to his previous communications, expressed the hope that he might be able to report to his Government "an assurance that the rights of the two companies under their respective concessions will be fully recognized, and that the obligations of Spain thereunder will be duly assumed and carried out by the United States Government during their occupation of the territories in question."

The Attorney-General, March 17, 1899, rendered an opinion to the effect that, as to Cuba, the United States, while not free from responsibility with regard to the affairs of the island, was under no duty to assume all the executory and other contracts which may belong to the past Government or its successor," but should limit its action to things consistent with the functions of a temporary occupant, arranging for the succession of the government of Cuba, whenever it should be established. As to the concessions in the Philippines, he found himself unable to express an opinion, owing to lack of information as to their terms.

The Attorney-General subsequently advised the Secretary of War as follows: "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 cases of doubt and difficulty, the present status until the full restoration of the civil

a Mr. Hay, Sec. of State, to Sir J. Pauncefote, Brit. amb., Jan. 19, 1899, MS. Notes to Brit. Leg. XXIV. 424.

Sir J. Pauncefote, Br. amb., to Mr. Hay, Sec. of State, Feb. 14, 1899, MS. Notes from Brit. Leg.

Griggs, At.-Gen., March 17, 1899, 22 Op. 384; Mr. Hay, Sec. of State, to Sir J. Pauncefote, Brit. amb., March 27, 1899, MS. Notes to Brit. Leg. XXIV. 482.

régime and the establishment of permanent governments, under which the rights of all can be duly and deliberately determined." a

In July, 1901, the rights of the various cable companies in Cuba became the subject of a comprehensive report by the law officer of the Division of Insular Affairs of the War Department. In this report the phrase "present status," employed by the Attorney-General, was interpreted as meaning the status quo ante bellum; and orders were issued accordingly to the military governor of Cuba.'

A report was also made by the same official upon the claim of the Eastern Extension Telegraph Company for the payment by the United States of a subsidy, which Spain had by the terms of the concession agreed to pay. In this report, which quoted from the report of the Transvaal Concessions Commission of April 19, 1901, it was advised that the question of the subsidy should be treated "as though it was an original application made by a company contemplating the construction of a quasi public improvement.”

An application was made by the Commercial Cable Company to the Secretary of War 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. By an executive order, promulgated by the commanding general of the United States forces in Cuba, all grants and concessions of franchises were forbidden to be made by any authority in the island, except upon the approval of the Secretary of War; and by an act of Congress of March 3, 1899, it was directed that no property, franchises, or concessions of any kind should be granted by the United States, or by any military or other authority, in Cuba during the occupation of the island by the United States. The Attorney-General therefore advised that it would be inexpedient to grant the application to land the cable in Cuba, and that, as the permission to land it in Porto Rico seemed to depend upon the grant of a similar right as to Cuba, the same order should be made with reference to that part of the application, although the circumstances under which the United States held and governed the two

a Griggs, At.-Gen., June 15, 1899, 22 Op. 514, 519.

Report of Mr. Magoon, law officer, Division of Insular Affairs, War Department, July 9, 1901, Magoon's Reports, 281-302. See, also, Magoon's Reports, 511, 534, 571, 579.

Report of Mr. Magoon, law officer, Division of Insular Affairs, War Department, July 22, 1901, Magoon's Reports, 529, 531. It appears, according to facts subsequently disclosed, that the company had suffered no actual loss or injury; that its business had so increased that it was making the percentage guaranteed by Spain, and that, if the United States had been substituted for Spain in the concession, the company would have been obliged to refund a considerable amount in excess of any claim which it might have made, by reason of the preferential rate to which the United States would have been entitled. (Mr. Magoon to Mr. Moore, Aug. 9, 1902, MS.)

islands were materially different. In conclusion, he said: "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 Company 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.'

In conformity with this opinion, the application of the Commercial Cable Company was denied, and afterwards, on May 27, 1899, an order was made by the War Department directing General Brooke, then commanding the American forces in Cuba, to prevent the company from landing a cable in the island. Of this order the company asked for a reconsideration, and the question was again referred to the Attorney-General. The Attorney-General advised the Secretary of War that if the company should, in disregard of the instructions of his Department, carry out its proclaimed purpose to land the cable in Cuba, he would be justified in using such force as might be necessary to remove and disrupt it. Having thus pronounced an opinion upon the question of power, the Attorney-General proceeded to discuss the question of "the private rights and public duties" involved in the subject. In this relation he said:

"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 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. . . . The 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 and carry on such enterprises. . . . Concessions of this kind, which carry with them exclusive rights for a period of years, constitute property of which the concessionary can no more he 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 of justice to destroy its exclusive right by granting competing privileges to another company.

...

"It is suggested . . . that the grant which the Western Union Telegraph Company now holds, by lease or assignment, was obtained by fraud practiced on the Government of Spain, and that for that reason its grant is void. Such an allegation can not be 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. 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 [president of the Commercial Cable Company] 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 cases of doubt and difficulty, the present status until the full restoration of the civil régime and the establishment of permanent governments under which the rights of all can be duly and deliberately determined."

Griggs, At.-Gen., opinions of March 25, 1899, and June 15, 1899, 22 Op. 408, 514. See, also, 23 Op. 195, 451.

For resolutions of various commercial bodies, calling for additional cable service to Cuba, see S. Doc. 289, 56 Cong. 1 sess.

Case of Pondoland.

In 1889-1893 certain concessions were granted by Sigcau, then ruler of Pondoland, of railway, mineral, land, and trading rights in that country. In 1894, Pondoland was formally annexed to the British dominions, but, while Sigeau gave notice of his desire that the concessions should be ratified, no such condition was attached to the annexation. Subsequently, the conces

sionaire sued the premier of Cape Colony, under the Crown Liabilities Act, 1888, for a formal recognition of his rights; and the colonial court having decided against him, he appealed to the Privy Council in England. It appeared that he had never obtained possession of the lands or exercised his concessionary rights, beyond, perhaps, an effort to find graphite. The Lord Chancellor (Earl of Halsbury), delivering the judgment of their lordships, found that the act of 1888 did not authorize the making of a declaration of right as against the Crown. But there was, he added, a "more complete answer" to any claim arising from the concessions, and this was that the annexation was an act of state-a transaction between sovereigns-and as such was "governed by other laws than those which municipal courts administer." If there was either an express or a well-understood bargain that private property in the ceded territory should be respected, it was one that could be enforced only "by sovereign against sovereign, in the ordinary course of diplomatic pressure.' In reality there was no bargain that the concessions should be recognized; but their lordships were not prepared to differ from the observation of the court below that the concessionaire had "strong claims to the favorable condition of the Government and Parliament of the country."

Cook v. Sprigg (1899), 68 L. J. P. C., 144, (1899) App. Cas. 572, 81 Law T. (N. S.) 281, following Sec. of State for India v. Kamachee Boye Sahaba, 13 Moore P. C. 22, and citing Doss v. Sec. of State for India, L. R. 19 Eq. 509, 534.

Transvaal Conces-"7. It is desirable to state here the broad principles sions Commission. which we considered applicable to the problem before us. "8. On the 1st September, 1900, Her late Majesty annexed the territories and obliterated the sovereignty of the South African Republic. It has, therefore, become necessary that the new Government should decide in what relation it stands to the concessions granted by the Government of the late Republic, and upon this point we submit the following observations:

"9. It is clear that a state which has annexed another is not legally bound by any contracts made by the state which has ceased to exist, and that no court of law has jurisdiction to enforce such contracts if the annexing state refuse to recognize them." But the modern usage of nations has tended in the direction of the acknowledgment of such contracts. After annexation, it has been said, the people change their allegiance, but their relations to each other and their rights of property remain undisturbed," and property includes those rights which lie in contract. La conquête change les droits politiques des habitants du

a Cook v. Sprigg. Law Reports 1899. Appeal Cases, 572.

bU. S. v. Percheman. 7 Peters, American Rep. Opinion of Chief Justice Marshall, p. 86, § 7.

cSoulard v. U. S. 4 Peters, American Rep., p. 512.