Mr. Hegermann to Mr. Fish.
Washington, June 14, 1874. (Received June 19.)
Sir In the note which you did me the honor to address me under data of the 22d of January last, you expressed a desire to be informed of the views of the government of the King in regard to the draft of an international convention for the protection of submarine cables, which was transmitted to it in the month of December, 1869, by the minister resident of the United States at Copenhagen.
In the month of May, 1870, the royal ministry of foreign affairs sent this legation a communication, with instructions to transmit it to the Government of the United States in relation to said draft, That communication never reached its destination, and it is owing to this unfortunate circumstance that the reply of the King’s government has not been laid before you, Mr. Secretary of State, before this.
The views of the government of the King in the matter in question [Page 382] having undergone no modification since that time, I have received orders to communicate to the Government of the United States the following observations, which were contained in the instructions sent to this legation in 1870:
In articles 1 and 2, it is stipulated that the privilege of laying and working submarine cables can be granted only in pursuance of an agreement between the two countries to be connected by the cables. The government of the King has no objections to advance against this principle, which, on previous occasions, it has usually followed itself; but it is of opinion that, in order to put it in practice, some easier way, and one better suited to the end than the one proposed in the draft, might be adopted. Instead of requiring direct conferences between the governments of two countries very distant, perhaps, from each other, the right might be given to each one of the two countries, by itself, to grant the privilege, with the proviso, however, that it should not be valid unless granted by the other country likewise. It would then become the business of the party receiving the privilege himself to obtain this indispensable requisite; the enterprise would still retain its private character, and would be carried out more rapidly if pushed by the interested party himself, who would, moreover, be better able to obtain satisfactory conditions therefor.
The proposition made in article 3 of the draft, viz, that the governments are to abstain from exercising any control over telegrams sent by international cables, is not in harmony with articles 20 and 21, compared with article 66 of the telegraphic convention concluded July 21, 1866, by the majority of the countries of Europe. The government of the King cannot deprive itself of a right of control which, especially in case of war, might be of great importance to the security of the state. It has reason to believe that other European states share its views on this subject.
Article 5 of the draught must doubtless be understood in this sense, that while an order from the proper authorities might, in the case mentioned under No. 4, exempt the persons in question from punishment, such an order would be without effect in the cases specified under Nos. 1, 2, and 3. In the opinion of the government of the King, it would be more natural to draw up a clause of this importance as an obligation binding upon the governments to issue no orders for the cutting of cables, than to choose the indirect method of saying that the governments engage to punish the guilty parties, whether these have acted in obedience to the orders of their own government or not.
Article 5 of the draft stipulates that the destruction or mutilation of a cable shall be punished as an act of piracy; according to the Danish penal code, the guilty party would, in that case, be condemned to hard labor for life. Such a punishment seems to the government of the King to be excessively severe, and it could not impose, for the crime in question, any penalty more severe than confinement in a house of correction.
Articles 7 and 8 contain stipulations which are not in accordance with the penal code now in force in Denmark, and would consequently require changes for which the government of the King would have to ask the consent of the legislative branch.
In making this formal reservation, the government of the King would not hesitate to adhere to the clauses of the article in question, the modifications to be made in the penal code not being very essential.
It is only as regards article 7 that it is necessary to observe that if the government of the King were eventually to engage to punish a non-Danish subject who, having committed the crime in question on the [Page 383] high seas and on board of a vessel carrying a foreign flag, should afterward be found in Denmark, this obligation could evidently concern only the subjects of the states that should have acceded to the convention. It would be in violation of all international law to extend the jurisdiction of a country, in the case of crimes committed on the high seas, to persons sailing under the flag of a state which had not adhered to the convention.
It is only with these modifications and reservations that the government of the King will be able to conclude a convention for the protection of submarine cables on the basis of the draft presented by the Government of the United States.
I avail myself, &c.,