weaken its enemy and strengthen itself. If confiscation is resorted to as a military measure, the commander of the belligerent force having used its soldiers to capture property may use its courts to condemn such captures. Both agencies are instruments of actual war. The case of Brown v. United States (8 Cranch, 110) does not apply to the situation in the Philippines, as understood by the writer. In that case a private citizen of the United States, in no way connected with the military establishment and without authorization from the military authorities, seized private property alleged to belong to an individual enemy, and sought the assistance of a court of admiralty to condemn said property as prize of war, pursuant to the provisions of the laws regarding prizes captured at sea. The court sustained an objection to the jurisdiction. In delivering the opinion of the court, Mr. Chief Justice Marshall said (pp. 122, 123): Respecting the power of government no doubt is entertained. That war gives to the sovereign full right to take the persons. and confiscate the property of the enemy wherever found is conceded. The mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but can not impair the right itself. That remains undiminished, and when the sovereign authority shall choose to bring it into operation the judicial department must give effect to its will. But until that will shall be expressed no power of condemnation can exist in the court. The Chief Justice further said (pp. 121-122): It does not appear that this seizure was made under any instructions from the President of the United States; nor is there any evidence of its having his sanction, unless the libels being filed and prosecuted by the law officer, who represents the Government, must imply that sanction. On the contrary, it is admitted that the seizure was made by an individual, and the libel filed at his instance by the district attorney who acted from his own impressions of what constituted his duty. All parties to that action conceded that Congress alone could invest the courts of the United States with jurisdiction to hear and determine confiscation proceedings. The contention of the libellant was that, by the passage of the act declaring war against England, Congress had thereby declared that confiscation of enemies' goods on land was as permissible as confiscation of such goods on the sea, and the court had the same jurisdiction over goods confiscated on land as was conferred by the "prize laws" of Congress regulating the seizure of goods on the sea, and that a private citizen of the United States was thereby authorized to make the seizure and maintain condemnation proceedings in the courts. The issues were stated by the court as follows (p. 123): The questions to be decided by the court are: First. May enemy's property, found on land at the commencement of hostilities, be seized and condemned as a necessary consequence of the declaration of war? Second. Is there any legislative act which authorizes such seizure and condemnation? Since in this country, from the structure of our Government, proceedings to condemn the property of an enemy found within our territory at the declaration of war can be sustained only upon the principle that they are instituted in execution of some existing law. And again, the court say (p. 126): The acts of Congress furnish many instances of an opinion that the declaration of war does not of itself authorize proceedings against the persons or property of the enemy found at the time within the territory. Evidently the "proceedings" referred to were proceedings in the civil courts of the United States. The holding of the court was that before the civil courts of the United States can assume jurisdiction, at the instance of a private citizen, to condemn the private property of an individual enemy seized on land by a private citizen of the United States, it is necessary for Congress to confer such jurisdiction and authorize private citizens to invoke it; and that the act declaring war against England did not confer such jurisdiction or authority, and the existing laws known as "prize laws" applied only to captures at sea. IN THE MATTER OF TRANSMITTING OVER THE TELEGRAPH [Submitted July 9, 1901. Case No. 2105, Division of Insular Affairs, War Department.] 1. Examination of the conflicting claims asserted by the International Ocean Telegraph Company, the Cuba Submarine Cable Company, and the French Cable Company, regarding their relative and respective rights under the several concessions granted said companies by the Government of Spain. 2. The Spanish concession to the Cuba Submarine Cable Company appears to confer upon that company the exclusive privilege of transmitting private telegrams passing between Santiago de Cuba, Cienfuegos, Batabanó, and the central station of Habana. 3. Said concession does not curtail the right of the Government to send Government messages between said designated points over the telegraph lines of the Spanish Government, nor to grant concessions for telepraph lines to points in Cuba which will not connect any two of the places reserved to the Cuba Submarine Cable Company. 4. The exclusive privilege conferred by the Spanish concession to the International Ocean Telegraph Company is confined to the exclusive right to ground in the coastal waters of Cuba any telegraph cable the other end of which is attached to any point in the United States. Otherwise than results from this grant the Government of Spain did not undertake to limit or control the international right of the United States to communicate with the island of Cuba. SIR: I have the honor to acknowledge your request for a report on a matter arising as follows: The International Ocean Telegraph Company maintains and operates a cable between the United States and Cuba. This company claims. the exclusive right of telegraphic communication between the United States and Cuba continuing until January, 1906, by virtue of a concession from the Spanish Government, granted by royal decrees dated December 5, 1866, and May 13, 1867. The Cuba Submarine Telegraph Company maintains and operates a submarine cable along the southern coast of Cuba, reaching from Santiago to Cienfuegos, and thence by land line to Habana. The original concession (December 31, 1869) embraced but three points, Santiago, Habana, and an intermediate mooring to be selected by the company, at one of three places, to-wit: Cienfuegos, Bay of Cochinos, or Batabanó. The company selected Batabanó for the third mooring, but soon thereafter sought authority for a fourth mooring to be effected at Cienfuegos. This was at first denied (April 9, 1870), then granted (July 10 and October 13, 1874), and revoked (August 6, 1876). Meanwhile the company had completed the mooring at Cienfuegos, and the decree of revocation declared this fourth contact would be tolerated as a special grace. Subsequently (September 30, 1895) the Government of Spain granted to the Cuba Submarine Company a concession for the establishment and operation of submarine cables connecting Cienfuegos with Manzanillo, Cuba, and touching at the towns of Casilda, Las Tunas, Júcaro, and Santa Cruz, these cables connecting at Cienfuegos with that established from Santiago to Habana. The French Cable Company maintains and operates a cable from Hayti to Cuba, landing at Santiago under a concession granted by the Spanish Government dated April 1, 1887. The United States and Hayti Telegraph and Cable Company maintains and operates a cable from New York City to Hayti. All said cables were constructed and operated prior to the American occupation. The Signal Service Corps, United States Army, reconstructed the overland telegraph line between Santiago and Habana, which line is now being operated by the military government of Cuba as a common carrier of telegraph messages. The lines of the United States and Hayti Telegraph and Cable Company and the French Cable Company are now operated in conjunction and transmit messages between New York and Santiago, Cuba, via Hayti. On arrival in Santiago, Cuba, messages destined for Habana or elsewhere in Cuba are tendered to the persons in charge of the overland telegraph line, operated by the United States military authorities, by whom they are accepted and transmitted upon payment of the rate charged the general public. The International Ocean Telegraph Company and the Cuba Submarine Telegraph Company separately complain that said practice constitutes an infringement of the terms of the concession granted the French Cable Company and also a violation of the concessionary rights of each of complainants. The first thing to be ascertained is: What is the specific act of the government of Cuba of which complaint is made? This is to be answered: The action permitting the overland telegraph line from Havana to Santiago to be used as a common carrier of messages passing between points in the island of Cuba and points in the United States, via Santiago and Hayti, over the lines of the French Cable Company. The next inquiry is: What action by the government of Cuba is requested by complainant? This inquiry is to be answered: To refuse transmission over said land telegraph line to messages received from or intended for points in the United States via Hayti over the French cable. Realizing that the Secretary of War would desire to be advised as to how the relative and respective rights of these cable companies were regarded and treated under Spanish sovereignty, careful examination has been made of all available means of information on that subject. The investigation induces the belief in the mind of the writer that while Cuba remained under Spanish sovereignty the Spanish Government might properly permit the French Cable Company 1. To transmit from Hayti to Santiago de Cuba over its cable messages from the United States arriving in Hayti over the United States and Hayti cable. 2. To transmit from Santiago de Cuba to Hayti over said cable any message delivered to the Santiago office of the French Cable Company for transmission to the United States via Hayti and over the United States and Hayti cable. 3. To use the Government overland telegraph lines to transmit messages received in Santiago over the Hayti and Santiago cable, destined for any point in Cuba excepting Habana, Cienfuegos, and Batabanó. 4. To use the Government overland telegraph lines to transmit to Santiago de Cuba messages originating in Cuba and destined for points outside of Hayti, provided such messages were sent from a station on said overland lines other than Habana, Cienfuegos, and Batabanó. Whether it was the practice of the Spanish Administration in Cuba to permit the French Cable Company to exercise said privileges is a question of fact not clearly and conclusively established by the documents filed herein. That the Secretary of War may secure such information as the examination made affords, the following is submitted. To support their complaint and request for relief, the International Ocean Telegraph Company and the Cuba Submarine Telegraph Company appeal to the treaty of peace (Paris, 1898) and the concessions. granted by the Government of Spain. The provisions of the treaty of peace invoked are those set forth in Article VIII, as follows: That the relinquishment * * * can not in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, of * * * or any other associations having legal capacity to acquire and possess property in the aforesaid territories. The Secretary of War is relieved from the responsibility of determining whether or not such rights as are actually granted by the Spanish concessions involved herein are property rights, for the Attorney-General, with reference to the concession to the International Ocean Telegraph Company, has advised the Secretary of War thatConcessions 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 having 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." (22 Op., 518.) The necessity continues for the Secretary of War to ascertain if the grant of cable rights under consideration is exclusive. Such ascertainment is not a judicial determination of the question involved, its purpose being to enable the Secretary to intelligently exercise his authority in a matter wherein that authority has been invoked, to the end that the government of Cuba, by omission or commission, shall not participate in what the Attorney-General holds "would be violative of all principles of justice." The International Ocean and Telegraph Company bases its claim of exclusive privileges on the following provisions of the concession under which the cable was constructed: ARTICLE 1. The grant that on the 19th 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 and 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. (See Doc. 3, No. 2105, Div. Ins. Affrs.) The grant made by said royal decree was subsequently modified by royal decree dated May 13, 1867. Therein it was decreed as follows: Considering that in this respect article 1 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, |