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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 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:

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"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.

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"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.

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

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

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territoire, et transfere au nouveau souverain la propriété du domaine public de son cedant. Il n'en est pas de même de la propriété privé qui demeure incommutable entres les mains de ses legitimes possesseurs.' Concessions of the nature of those which were the subject of our enquiry presented examples of mixed public and private rights: they probably continue to exist after annexation until abrogated by the annexing state,' and, as matter of practice in modern times, where treaties have been made on the cession of territory, have been often maintained by agreement. In considering what the attitude of a conqueror should be towards such concessions we are unable to perceive any sound distinction between a case where a state acquires part of another by cession, and a case where it acquires the whole by annexation. The opinion that in general private rights should be respected by the conqueror, though illustrated and supported by jurists by analogies drawn from the Roman law of inheritance, is based on the principle, which is one of ethics rather than of law, that the area of war and of suffering should be, so far as possible, narrowly confined, and that non-combatants should not, where it is avoidable, be disturbed in their business; and this principle is at least as applicable to a case where all as where some of the provinces of a state are annexed.

"10. Though we doubt whether the duties of an annexing State towards those claiming under concession or contracts granted or made by the annexed State have been defined with such precision in authoritative statement, or acted upon with such uniformity in civilized practice as to warrant their being termed rules of international law, we are convinced that the best modern opinion favors the view that, as a general rule, the obligations of the annexed State towards private persons should be respected. Manifestly the general rule must be subject to qualification, e. g., an insolvent State could not by aggression, which practically left to a solvent State no other course but to annex it, convert its worthless into valuable obligations; again, an annexing State would be justified in refusing to recognize obligations incurred by the annexed State for the immediate purposes of war against itself; and probably no State would acknowledge private rights, the existence of which caused, or contributed to cause, the war which resulted in annexation.

"11. Subject to these reservations His Majesty's Government in dealing with the concessions in question will probably be willing to adopt the principle which, in the case of the annexation of Hanover by Prussia (the modern case most nearly corresponding with that under consideration), was proclaimed by the conquerors in the follow

a Calvo. Le Droit International, 2478. Halleck. Interna. Law, p. 831. Prussia and Netherlands, 1816. Peace of Zurich, 1859. France and Sardinia, 1860. Peace of Vienna, 1864. Cession of Venetia, 1866. Germany and France, 1871. Great Britain and Germany, 1890.

<Huber, Staaten Succession, p. 149. Martens Nouveau Recueil.

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ing terms: 'We will protect everyone in the possession and enjoyment of his duly acquired rights.' (Royal Prussian Patent, 3rd Oct., 1866.) 12. The acceptance of this principle clearly renders it necessary that the annexing government should in each case examine whether the rights which it is asked to recognize have, in fact, been duly acquired. It is an obvious corollary that the rights in question must be valid not only by reason of due acquisition in the first instance, but by reason of their conditions having been subsequently duly performed. "13. Applying these principles more in detail to the case of the concessions with which we have had to deal, we have come to the conclusion that the cancellation of a concession may properly be advised when

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"(i) The grant or the concession was not within the legal powers of the late government; or,

"(ii) Was in breach of a treaty with the annexing State; or,

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(iii) When the person seeking to maintain the concession acquired it unlawfully or by fraud; or

"(iv) Has failed to fulfill its essential conditions without lawful

excuse.

"In any case, falling within these categories, where there has either been no duly acquired' right, or there has been a non fulfillment of essential conditions by the concessionaire, cancellation or modification without compensation appears to us, in the absence of special circumstances, to be justifiable.

14. We further think that the new government is justified in cancelling or modifying a concession when

(v) The maintenance of the concession is injurious to the public interest.

"15. In this last case, however, the question of compensation arises, inasmuch as it would be inequitable that a concessionaire should lose without compensation a right duly acquired, and whose conditions he had duly fulfilled, because the new government differed from the old in its view as to what was, or was not, injurious to public interest even though the opinion of the new government were obviously the true one. We do not consider the actual amount of compensation payable as a matter within the scope of our inquiry, but we submit the following observation as to the principles relevant to the question:

"In determining the amount of compensation in respect of losses sustained by the owner of a concession cancelled or modified as injurious to the public interest, regard may justly be paid to the question whether the owner, at the time when he received or acquired the concession, knew, or reasonably ought to have known, that it was precarious. A concession may be precarious for many reasons, but it certainly is so if the subject-matter of it is closely related to large and changing public interests. In such matters, no reasonable man can anticipate that a government can indefinitely fetter the legislation

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