fishery rights in territorial waters, telegraphic and railway privileges, the use of a port by a foreign power as a coaling station, an obligation not to maintain fortifications in particular places, and other derogations of like kind from the full enforcement of sovereignty over parts of the national territory. These and such like privileges or disabilities must, however, be set up by treaty or equivalent agreement; they are the creatures not of law but of compact. The only servitudes which have a general or particular customary basis are, the above-mentioned right of innocent use of territorial seas, customary rights over forests, pastures, and waters for the benefit of persons living near a frontier, which seem to exist in some places, and possibly a right to military passage through a foreign state to outlying territory. In their legal aspects there is only one point upon which international servitudes call for notice. They conform to the universal rule applicable to "jura in re aliena." Whether they be customary or contractual in their origin, they must be construed strictly. If, therefore, a dispute occurs between a territorial sovereign and a foreign power as to the extent or nature of rights enjoyed by the latter within the territory of the former, the presumption is against the foreign state, and upon it the burden lies of proving its claim beyond doubt or question. (International Law, 5th ed., p. 159.)

State Department opinion of Chinese leases.—A memorandum for the office of the Solicitor of the Department of State by Mr. Van Dyne on January 27, 1900, summarizes the Chinese leases.

By the leases made by the Chinese Government of Weihaiwei, Kiaochow, and Port Arthur to Great Britain, Germany, and Russia, respectively, the jurisdiction of China over the territories leased is relinquished during the terms of the leases. In the case of Weihaiwei, leased to Great Britain, it is expressly provided that "within the territory leased Great Britain shall have sole jurisdiction."

In the lease of Kiaochow to Germany, it is provided that China shall have no voice in the government or administration of the leased territory, but that it shall be governed and administered during the whole term of the lease by Germany; that Germany is at liberty to enact any regulation she desires for the government of the territory. Chinese subjects are allowed to live in the territory leased, under the protection of the German authorities, and there carry on their business as long as they conduct themselves as law-abiding citizens. Provision is made for the surrender to the Chinese authorities of fugitive Chinese criminals taking refuge in the leased territory. The Chinese authorities are not at liberty

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to send agents into the leased territory to make arrests. The lease declares that China "retains her sovereignty over this territory."

In the lease of Port Arthur to Russia it is provided that the control of all military forces, as well as the civil officials in the territory, shall be vested in one high Russian official; that all Chinese military forces shall be withdrawn; that the Chinese inhabitants may remain or go, as they choose; that if they remain, any Chinese charged with a criminal offense shall be handed over to the nearest Chinese official to be dealt with. [Mr. Conger says that the Russian legation informs him that this last provision is not correctly translated, and that, construing it in connection with article 8 of the treaty of 1860, the Russian Government has the right and does try Chinese for crimes committed against Russians.] This lease is expressly declared on the understanding that it "shall not prejudice China's sovereignty over this territory."

As it is expressly stipulated in the leases that China retains sovereignty over the territory leased, it could doubtless be asserted that such territory is still Chinese territory and that the provisions of our treaties with China granting consular jurisdiction are still applicable therein. But, in view of the express relinquishment of jurisdiction by China, I infer that the reservation of the sovereignty is merely intended to cut off possible future claims of the lessees that the sovereignty of the territory is permanently vested in them. The intention and the effect of these leases appear to me to have been the relinquishment by China, during the term of the leases, and the conferring upon the foreign power in each case of all jurisdiction over the territory. (U. S. Foreign Relations, 1900, 388.)

Practice under Chinese leases.-This summary of the nature of jurisdiction in the areas held under lease from China shows a considerable difference in extent of jurisdiction. Since these leases were negotiated practice has shown that Chinese authority was for the most part at an end within the leased areas. The states holding the leases have not established uniform regulations for the government of the leased territories. There have been frequent conflicts and differences of opinion on the subject of the exercise of jurisdiction. The general result has been favorable to the exercise of full power in the leased territory by the lessee as against third states. The principle upon which decisions have been made is that the grant of a specific right carries with it the privilege

of such action as is necessary for the exercise of the right. Wherever definite reservations or agreements occur in the treaty or convention granting the lease, such reservations or agreements are considered to have full force and validity as against any general grant.

United States and territory relinquished or ceded by Spain in 1898.-By Article I of the treaty of December 10, 1898, between the United States and Spain (30 U. S. Statutes at Large, 1754) as a result of the Spanish-American war, it is provided:

ARTICLE I. Spain relinquishes all claim of sovereignty over and title to Cuba; and as the island is, upon its 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.

It is to be observed that by this promise Spain merely "relinquishes all claim of sovereignty over and title to Cuba." The following article goes further than merely to relinquish sovereignty:

ARTICLE II. Spain cedes to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies and the island of Guam in the Marianas or Ladrones.

While sovereignty and title to Cuba was relinquished, Spain's claim to the other islands mentioned in the second article was ceded to the United States. The status of the areas mentioned in the two articles would therefore be unlike. Porto Rico and the other islands mentioned in the second article would come immediately under the sovereignty of the United States. That the act of Spain is unlike in character in the two instances is fully recognized in the subsequent articles of the treaty which uniformly refer to "the sovereignty relinquished or ceded "" as the case may be."

By a later article of the treaty it is provided:

ARTICLE XI. The Spaniards residing in the territories over which Spain by this treaty cedes or relinquishes her sovereignty shall be subject in matters civil as well as matters criminal to the jurisdiction of the courts of the country wherein they reside, pur

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suant to the ordinary laws governing the same; and they shall have a right to appear before such courts and to pursue the same course as citizens of the country to which the courts belong.

This right of the Spaniards to be subject " to the jurisdiction of the courts of the country wherein they reside" would be a right which would generally extend to citizens of other states under the "most favored nation treatment."

Further, in accordance with Article XVI:

It is understood that any obligations assumed in this treaty by the United States with respect to Cuba are limited to the time of its occupancy thereof; but it will, upon the termination of such occupancy, advise any government established in the island to assume the same obligations.

The implication of this article is that a responsible government would be established in Cuba and that this government would be advised to assume the same obligations in regard to the civil and criminal jurisdiction which the United States had assumed.

Coaling and naval stations in Cuba.-The so-called "Platt amendment" of March 2, 1901, provided:

That in fulfillment of the declaration contained in the joint resolution approved April twentieth, eighteen hundred and ninetyeight, entitled "For the recognition of the independence of the people of Cuba, demanding that the Government of Spain relinquish its authority and government in the island of Cuba, and to withdraw its land and naval forces from Cuba and Cuban waters, and directing the President of the United States to use the land and naval forces of the United States to carry these resolutions into effect," the President is hereby authorized to "leave the government and control of the island of Cuba to its people" so soon as a government shall have been established in said island under a constitution which, either as a part thereof or in an ordinance appended thereto, shall define the future relations of the United States with Cuba, substantially as follows:

Among the promises defining the relations of the United States with Cuba the seventh is as follows:

That to enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the government of Cuba will sell or lease to the United States lands necessary for coaling or naval stations at certain

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specified points, to be agreed upon with the President of the United States. (31 U. S. Statutes at Large, 895.)

The articles of this amendment became an appendix to the constitution of Cuba promulgated on the 20th of May, 1902. By an agreement between the United States and Cuba, February 16-23, 1903, the Republic of Cuba leased certain areas in Guantanamo and in northern Cuba to the United States for the purposes of coaling and naval stations. In regard to Article I of this agreement, which defines the areas leased, the second and third articles of the agreement say:

ARTICLE II.

The grant of the foregoing article shall include the right to use and occupy the waters adjacent to said areas of land and water, and to improve and deepen the entrances thereto and the anchorages therein, and generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.

Vessels engaged in the Cuban trade shall have free passage through the waters included within this grant.

ARTICLE III.

While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above-described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas, with the right to acquire (under conditions to be hereafter agreed upon by the two Governments) for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain, with full compensation to the owners thereof.

These areas, commonly called Guantanamo and Bahia Honda, are therefore leased to the United States and not ceded. The United States, therefore, has only a qualified jurisdiction over these regions and not sovereignty, as in Porto Rico and the Philippines, and the conditions. of exercise of jurisdiction in these leased areas are accordingly unlike the conditions within the areas over which the United States exercises sovereignty.