SITUATION VI.

(a) During the war between the United States and State X a commander of a United States war vessel enters a port of State Y, a neutral, and sends a cipher message to the regular telegraph office for transmission to his home government. Under orders from the authorities of State Y the message is refused at the office. The commander protests.

(b) The commander then sends an openly worded message, which is also refused unless the authorities are permitted to reword the message without materially changing its apparent meaning. The authorities also claim the right to refuse to transmit any portions of the message which they deem fit, provided they give notice to the commander that such portions will not be transmitted. The commander again protests against all these claims.

How far is the position of State Y correct in each case?

SOLUTION.

(a) The position of neutral State Y in refusing to allow the transmission of the telegram in cipher is correct. It is entirely proper for a neutral state to forbid such use of a line or cable.

(b) State Y has full right to prohibit the transmission of any or all such messages. The authorities of State Y would have no right to mutilate a dispatch already accepted for transmission, but could prescribe such restrictions as seemed necessary in regard to the form in which messages should be accepted.

NOTES ON SITUATION VI.

(a) Right to control the telegraph.-The first situation involves the right of a neutral to prohibit the sending of cipher messages by a belligerent from a neutral point to his home government.

In this case, as stated, the message is submitted in cipher by the commander of a United States war vessel for transmission to his home government.

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CONTROL OF NEUTRAL TELEGRAPH.

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The inference would without reasonable question be that such message would be military in its nature, because sent by a military commander to his home government, and further because embodied in cipher.

The situation then further reduces to that of the right of a neutral to regulate or control the sending of official military dispatches from points within his territory to a belligerent government.

The general right of control of the telegraphic communication by a government has been repeatedly claimed and exercised by various governments, particularly in case of such lines as pass from one state to another. In general this control extends to the right to demand priority in the transmission of government dispatches or to absolute control in case of necessity.

The character of the act would be the same should the message be submitted for transmission as in the situation given whether the line of transmission were by land or submarine telegraph. The possibilities of interruption of the transmission by the other belligerent would, however, be very different in the two cases.

Control by the United States. The right of control of cables has been asserted in very definite form by the United States. A somewhat full discussion elsewhere presented before this Naval War College indicates that

The right to legislate for this form of property is therefore in the power of the state, or in case no legislation has been enacted the legal control is in the proper department of the Government. This position was affirmed by Secretary Fish as early as July 10, 1869, as follows:

"It is not doubted by this Government that the complete control of the whole subject, both of the permission and the regulation of foreign intercourse, is with the Government of the United States, and that however suitable certain legislation on the part of a State of the Union may become, in respect to proprietary rights in aid of such enterprises, the entire question of allowance or prohibition of such means of foreign intercourse, commercial or political, and of the terms and the conditions of its allowance, is under the control of the Government of the United States." (Wilson, Submarine Telegraphic Cables in their International Relations, p. 10.)

President Grant took practically the same position in his message of December, 1875, and since that time the position has often been reaffirmed. All foreign sub

marine cables having a terminus in the United States have been landed under a distinct condition that the "Executive permission is to be accepted and understood by the company as being subject to any future action of Congress in relation to the whole subject of submarine telegraphy." A late opinion of the Attorney-General, in accordance with which the President was entitled to act and to order all the departments of executive character to act, sums up the matter as follows:

The preservation of our territorial integrity and the protection of our foreign interests is intrusted, in the first instance, to the President. * * * The President has charge of our relations with foreign powers. It is his duty to see that in the exchange of comities among nations we get as much as we give. He ought not to stand by and permit a cable to land on our shores under concessions from a foreign power which does not permit our cables to land on its shores and enjoy there facilities equal to those accorded its cable here. * * *The President is not only the head of the diplomatic service, but commander in chief of the Army and Navy. A submarine cable is of inestimable service to the Government in communicating with its officers in the diplomatic and consular service, and in the Army and Navy when abroad. The President should therefore demand that the Government have precedence in the use of the line, and this was done by President Grant in the third point of his message. * * * The Executive permission to land a cable is of course subject to subsequent Congressional action. The President's authority to control the landing of a foreign cable does not flow from his right to permit it in the sense of granting a franchise, but from his power to prohibit it should he deem it an encroachment on our rights or prejudicial to our interests. The unconditional landing of a foreign cable might be both, and therefore to be prohibited, but a landing under judicious restrictions and conditions might be neither, and therefore to be permitted in the promotion of international intercourse. (22 Opins. Atty. Gen., p. 25.)

Hongkong-Manila cable in 1898.-Certain correspondence carried on during the Spanish-American war of 1898 shows that a new cable between a point occupied by a belligerent and a neutral point could not properly be laid in time of war without laying the neutral open to the suspicion of violation of neutrality.

Mr. Hay to Mr. Day.

AMERICAN EMBASSY,

London, May 11, 1898.

The Marquis of Tweeddale, president of Hongkong and Manila Telegraph, informs me that they hold their concessions from Spanish Government,

HONGKONG-MANILA CABLE.

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on condition that they shall not send telegrams when forbidden by Spain. This formal order has been given by Spain. They are therefore compelled to cease working for the present. He professed friendly feelings and desire that we should establish ourselves permanently in Philippine Islands, but declared inability to act otherwise in view of his concessions.

HAY.

Mr. Day to Mr. Hay.

DEPARTMENT OF STATE,

Washington, May 22, 1898.

Spanish control by special franchise cable from Manila to Hongkong. Admiral Dewey has possession of the end of the cable at Manila, but can not control end at Hongkong. British ambassador has telegraphed British minister for foreign affairs for permission to land new cable at Hongkong, to be constructed by American company; he also advises British minister for foreign affairs that you will see him on the subject. See him at once and ascertain if concession can be had for American company.

DAY.

Mr. Day to Mr. Hay.

DEPARTMENT OF STATE,
Washington, May 31, 1898.

SIR: I have received your telegram of the 26th instant, which, deciphered, reads as follows:

British minister for foreign affairs is taking opinion of the law officers of the Crown regarding Manila cable. Answer not yet received, but I have reason to think it will be negative. Concessions regarded as violation of neutrality.

Respectfully, yours,

WILLIAM R. DAY.

Mr. Hay to Mr. Day.

AMERICAN EMBASSY,
London, June 1, 1898.

British Government regret not at liberty to comply with our request to land cable at Hongkong.

HAY.

Mr. Hay to Mr. Day.

AMERICAN EMBASSY,

London, June 1, 1898.

SIR: Referring to my dispatch No. 407, of the 24th of May, and to my cabled dispatch of the 26th of May, I now have the honor to transmit a copy of a note just received from the Marquis of Salisbury, in which he informs me

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that he has consulted the lord chancellor and the attorney and the solicitor general in regard to our request that landing facilities at Hongkong should be granted to an American cable from Manila, and expresses his regret that as he is advised by Her Majesty's Government is not at liberty to comply with the proposal of the Government of the United States.

As you will have learned by my cable dispatch, I had anticipated this decision. My conversation with high diplomatic and legal authorities had convinced me that they could not authorize us to land a cable at Hongkong without a breach of neutrality.

I am, etc.,

JOHN HAY.

Lord Salisbury to Mr. Hay.

FOREIGN OFFICE, May 27, 1898.

YOUR EXCELLENCY: You expressed to me on Monday last the desire of the United States Government that a cable should be laid from Manila to Hongkong, and requested that Her Majesty's Government would grant landing facilities at Hongkong for that purpose. You informed me that the United States Government has been desirous of employing the agency of the Eastern Telegraph Company for the conveyance of their messages, but that the company had been compelled to refuse their application by an intimation from the Spanish Government that the concessions of the company would be forfeited if they assented to it. I have consulted the lord chancellor and the attorney and solicitor general in respect to your excellency's communication, and regret to inform you that, as I am advised, Her Majesty's Government is not at liberty to comply with the proposal of the Government of the United States.

I have, etc.,

(Foreign Relations U. S., 1898, p. 976.)

SALISBURY.

If consent by the neutral in time of war to the laying of a new cable between belligerent and neutral territory would be regarded as contrary to neutrality, the use for warlike purposes of one already laid would be open to question.

Carriage of military dispatches.-It may be said that the general character of the telegraphic service must be such as to give the neutral some reasonable ground for refusing to receive the dispatch in question or any other dispatch for transmission.

There has been much discussion in regard to the carriage of military dispatches by neutral ships, and it is generally held an act which renders the ship liable to penalty.