seems to me not, and that whoever asserts that nations have by common consent established such a law must furnish abundant and indisputable authority, whereas, as Hall says (sec. 217), this subject is one upon which writers on international law are generally unsatisfactory.' "Servitudes or easements, completely granted or established upon the ceded territory for the benefit of a foreign nation, have been supposed to diminish by so much the title of the owner of the province, so that when he cedes it he cedes it subject to the servitudes. On the other hand, it may be that the owner of the province may acquire from a foreign power a servitude over foreign territory for the benefit of the province, in such a way that it would become appendent or appurtenant to the province and go with it into whosesoever hands the province might be transferred. This seems to be the meaning of Hall (International Law, 4th ed., p. 98) in speaking of the navigation and regulation of a river. In such a case the obligation runs with the land, and may be regarded as other than a mere personal obligation. But this is no reason for treating personal obligations, stipulated in an executory contract, as not personal obligations, simply because they may have some relation to a particular ceded locality.

"I am unable to regard these contracts of concession, with their manifold personal stipulations, as other than what they purport to be; and the difference between them and servitudes, diminishing the title. of the owner prior to the cession or appurtenant to the province ceded, or contracts to convey public lands, or what we conceive of as a ‘franchise' to accomplish (as here) a public duty of the sovereign of the ceded province, or even a private (e. g., eleemosynary) work, where such franchise exists otherwise than as but an integral part of such an executory contract of the sovereign of the province as we have under consideration, seems to me to be an obvious one. These contracts are contracts. They are whole things with interdependent parts and reciprocal personal promises. We can not change their nature by calling them by other names, or repeating the word 'local' in connection with them. As such personal contracts, their promises bind those who made them. Any obligation of others in connection with their subject-matter is something different from the contract obligation, and may or may not coincide with the terms of the specific promises. "When we look into the present instance, we find the large capital upon which the subsidy was calculated has long since been invested by the railway company. The provinces of the Philippines have undoubtedly received, and they retain and will retain, the chief benefit from the railroad; the revenues out of which that part of the benefit was to be paid for are now in the hands of their new government; the creditor was induced very properly to look to those revenues for that purpose; and, moreover, the railroad was a most necessary piece of property, two-thirds of which was bought, as it were, by a guardian for the use

of his ward, the price to be paid as to two-thirds from the funds of the ward. The property has been furnished and is being maintained, and, from its nature, will be maintained, and must continue to benefit the ward, whose funds are now freed from the guardian's control. From these considerations it seems to me to follow that, although the contract as such has departed with Spain, there is a general equitable obligation upon the provinces to make some fair arrangement with the company as to the two-thirds benefit, and that they can not justly take advantage of the disappearance of Spain to retain what she procured for them, on the credit of their funds, and deny all liability for the price.

"Whether, based exclusively upon the reception (for the future, and, so far as geographical, political, and other differences will permit, a benefit to continue) of the benefit of the railroad, the United States has incurred any liability affecting one third or any such portion of the original indebtedness, it is unnecessary to consider, since if so it will be for Congress to deal with it.

"So much in answer to your question as to what obligations, if any, exist under said concession, either against the revenues of the Philippine Islands or those of the United States.

"You ask, if any such obligations do exist, what action can legally be taken in recognition and settlement thereof by the executive department of the United States or by the military government of those islands.

"It seems to me that the nonaction of Congress has confirmed to the President the responsibility and authority to continue the military government he has set up in the Philippines, as the only government, for the present and for an uncertain time, of a peopled country whose future permanent status is undetermined. (Treaty of Paris, Article IX.; opinion Attorney-General, July 22, 1898, concerning Hawaii.) Under such circumstances, I am of opinion that the President is not without authority to settle a preexisting accrued indebtedness of the kind herein explained, if he has good reason to believe that the settlement can not wisely and justly be left to await action by the future government.

"It is represented in the papers submitted to me that the large deficiencies in the receipts of the railroad company, occasioned by the disturbed state of affairs, etc., threaten its bankruptcy. If so, this is a fact which may be considered in determining the propriety of present action.

"You desire to know what particular action can be taken. I am of opinion that the President has authority, if he thinks it necessary, to apply the local revenues of the provinces through which this road. extends to the discharge of their equitable liability, based upon so much of the concessionary agreement as has been already executed,

the amount of which liability he has authority to determine, in view of all the facts and circumstances. And what he can do the military government can do with his consent.”

Mr. Griggs, Attorney-General, to Mr. Root, Sec. of War, July 26, 1900, 23 Op. 181; affirmed by Knox, At. Gen., June 14, 1901, id. 451.

"With reference to your inquiry as to what settlement was finally made with the Manila Railway Co., I have to advise you that the matter has been referred to the military government of the Philippine Islands and will receive the personal attention of Governor Taft on his return to Manila. While Governor Taft was in Washington, the representatives of the railway co. were given a hearing before Judge Taft and me, the outcome of which was a substantial agreement that the position taken in my report, to which you refer, is correct, and that the matter should be dealt with as a business proposition between business men, rather than as a legal proposition controlled by hard and fast rules of law. It was further considered that inasmuch as the railway company desired certain concessions to enable them to extend their railway and as the government of the Philippines desired such extension to be made, the matter could and would be disposed of in the negotiations and proceedings relating to the new concession." (Mr. Magoon, Law Officer, Bureau of Insular Affairs, to Mr. Moore, Aug. 9, 1902, MS.)

Oct. 10, 1898, the British ambassador at Washington inclosed to the Department of State a copy of the concession granted Cable concessions. by the Spanish Government to the Cuba Submarine Telegraph Company."

Jan. 18, 1899, he addressed to the Department of State another note, concerning the concessions granted by Spain in the Philippines to the Eastern Extension Australasia and China Telegraph Company.

Accompanying this note there was the following pro memoria:

"The undersigned has been instructed by his Government to make the following representation in relation to the claims of the Eastern Extension Telegraph Company in relation to exclusive rights and to subsidy under their concessions from Spain in the Philippine Islands, which the company fear may not be fully recognized by the United States Government.

"The obligations contracted by Spain under those concessions are of a local nature and it will not be contested, as Her Majesty's Government believe, that they become binding on the United States Government on their taking possession of the islands or assuming effective control of them, whether under a formal protectorate or otherwise. On the faith of those concessions the company has expended vast sums for the benefit of the islands, and the obligations in question clearly belong to that class of local obligations which have always been held to be transferred with the sovereignty and to pass with the territory.

@ Sir J. Pauncefote, Brit. amb., to Mr. Hay, Sec. of State, Oct. 10, 1898, MS. Notes from British Leg.

Sir J. Pauncefote, Brit. amb., to Mr. Hay, Sec. of State, Jan. 18, 1899, MS. Notes from Brit. Leg.

"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.

c 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.)