Mr. Richards to Mr. Sherman.
Washington, D. C., January 18, 1898.
Sir: On May 4, 1897, the French ambassador submitted to your Department the application of the French Company of Telegraphic Cables (the successor of La Compagnie Française du Télégraphe de Paris à New-York) for permission to land a cable supplementary to that which it has between Brest and Cape Cod, upon the same terms and conditions as those which were imposed by the President in 1879, when the original cable was landed.
On May 11, 1897, your Department replied to this request, saying:
The present Executive does not regard himself as clothed, in the absence of legislative enactment, with the requisite authority to take any action upon the application which you present. A bill was introduced in the last Congress giving the President of the United States express authority to authorize the landing of submarine cables on the shore of the United States subject to conditions therein specified, but it failed to become a law. Until Congress shall see fit to clothe the President with power to act in matters of this kind, he will be compelled to refrain from doing so.
On June 4, 1897, your Department addressed a note to the French ambassador, calling his attention to the fact that it had been represented to the Department that a steamer from France had arrived at Cape Cod with the avowed purpose of laying the shore end of the new cable, and saying:
It is the expectation of the Federal Government that that company (the French Cable Company) will take no steps toward laying its proposed cable from Cape Cod without express authorization of the President or of Congress before which, as I have observed to yon, a bill was introduced at the last session, but which has not yet been enacted into law. If that company should, however, take action in the manner proposed, it is proper to say that it would do so at its peril.
On June 5, 1897, another note was sent, informing the French ambassador of advices received to the effect that about 1,000 feet of the new French cable had been laid at Cape Cod the day before, and saying:
Before taking any further action in the matter, I request that you will promptly instruct the proper authorities of the French Telegraph Company, in case the Department’s information should be correct, to immediately desist from its work pending the necessary authorization either of the President or of Congress.
The French ambassador’s notes, two of the 5th and one each of the 6th and 8th of June, disclose the fact that, although the Department’s notes of the 4th and 5th of June had been promptly forwarded to the company’s agent, the work of landing the cable had been completed before their receipt.
In view of the situation outlined, and the fact that Congress has not acted upon the matter, you request an official expression of my views as to the power of the President, in the absence of legislative enactment, to control the landing of foreign telegraphic cables.
What the President can do and ought to do in the case of projected cables may possibly be ascertained from what he has done; at any rate, a recurrence to the history of the landing of certain existing cables may prove of service in considering the question you propound.
The first cable from a foreign country landed upon the shores of the United States was one connecting the island of Cuba with the State of Florida, and was landed in 1867, under supposed authority of the act of Congress of May 5, 1866 (14 Stat., 44), granting to the International Ocean Telegraph Company, a New York corporation, the sole privilege, for fourteen years, of laying and operating telegraphic cables from the shores of Florida to Cuba, the Bahamas, and other West India islands, upon these conditions, namely, the United States to have the free use of the cable for military, naval, and diplomatic purposes; the company to keep all its lines open to the public for the daily publication of market and commercial reports and intelligence; all messages to be forwarded in the order received; no charge to exceed $3.50 for messages of ten words, and Congress to have the power to alter and determine the rates (Forty-ninth Congress, second session, Senate Doc. No. 1–2, p. 63; letter of Mr. Frelinghuysen to the President, January 27, 1885.)
In 1869 a concession was granted by the French Government to a company which proposed to lay a cable from the shores of France to the United States. One of the provisions of this concession gave to the company for a long period the exclusive right of telegraphic communication by submarine cable between France and the United States. President Grant resisted the landing of the cable unless this offensive monopoly feature should be abandoned. The French company accordingly renounced the exclusive privilege, and the President’s objection was withdrawn. The cable was laid in July, 1869; it ran from Brest, France, to St. Pierre, a French island off the southern coast of Newfoundland, thence to Duxbury, Mass., and was known as the “First French Cable.” It soon passed, however, into the control of the Anglo-American Company, controlling the cables connecting Great Britain with this continent. (Senate Doc. No. 122, pp. 63, 71.)
In a note respecting this cable, dated July 10, 1869, and addressed to the French and British ministers, Mr. Fish said:
It is not doubted by this Government that the complete control of the whole subject, both of the permission and the regulation of this mode of foreign intercourse, is with the Government of the United States, and that, however suitable certain legislation on the part of a State of the Union may become, in respect of its proprietary rights, in aid of such enterprises, the entire question of the allowance or prohibition of such means of foreign intercourse, commercial and political, and of the terms and conditions and its allowance, is under the control of the Government of the United States. (Sen. Doc. No. 122, p. 65.)
In his annual message of December, 1875, President Grant recounts his action respecting the French cable of 1869, and says:
The right to control the conditions for the laying of a cable within the jurisdictional waters of the United States to connect our shores with those of any foreign state pertains exclusively to the Government of the United States under such limitations [Page 168] and conditions as Congress may impose. In the absence of legislation by Congress, I was unwilling, on the one hand, to yield to a foreign state the right to say that its grantees might land on our shores while it denied a similar right to our people to land on its shores; and, on the other hand, I was reluctant to deny to the great interests of the world and of civilization the facilities of such communication as were proposed. I therefore withheld any resistance to the landing of the cable, on condition that the offensive monopoly feature of the concession be abandoned, and that the right of any cable which may be established by authority of this Government to land upon French territory and to connect with French land lines, and enjoy all the necessary facilities or privileges incident to the use thereof upon as favorable terms as any other company, be conceded. (Senate Doc. No. 122, p. 70.)
After adverting to the need of new cables in order to provide competition and reduce rates, President Grant continues:
As these cable-telegraph lines connect separate States, there are questions as to their organization and control which probably can be best, if not solely, settled by conventions between the respective States. In the absence, however, of international conventions on the subject, municipal legislation may secure many points which appear to me important, if not indispensable, for the protection of the public against the extortions which may result from a monopoly of the right of operating cable telegrams, or from a combination between several lines:
- I.
- No line should be allowed to land on the shores of the United States under the concession from another power which does not admit the right of any other line or lines formed in the United States to land and freely connect with and operate through its land lines.
- II.
- No line should be allowed to land on the shores of the United States which is not, by treaty stipulation with the Government from whose shores it proceeds, or by prohibition in its charter, or otherwise to the satisfaction of this Government, prohibited from consolidating or amalgamating with any other cable-telegraph line, or combining therewith for the purpose of regulating and maintaining the cost of telegraphing.
- III.
- All lines should be bound to give precedence in the transmission of the official messages of the Governments of the two countries between which it may be laid.
- IV.
- A power should be reserved to the two Governments, either conjointly or to each, as regards the messages dispatched from its shores, to fix a limit to the charges to be demanded for the transmission of messages.
I present this subject to the earnest consideration of Congress.
In the meantime, and unless Congress otherwise direct, I shall not oppose the landing of any telegraphic cable which complies with and assents to the points above enumerated, but will feel it my duty to prevent the landing of any which does not conform to the first and second points as stated, and which will not stipulate to concede to this Government the precedence in the transmission of its official messages, and will not enter into a satisfactory arrangement with regard to its charges. (Senate Doc. No. 122, pp. 71–72.)
It will be observed that President Grant rested his authority to annex conditions to the landing of a foreign cable upon his power to prevent its landing altogether, if deemed by him inimical to the interests of this Government, its people, or their business. The right to prevent carried with it the right to control.
The Direct United States Cable Company completed its line in 1875 from Ballinskellings Bay, Ireland, to Eye Beach, New Hampshire, by way of Torbay, Nova Scotia. This cable was laid under the act of March 29, 1867 (15 Stat., 10), conferring upon the American Atlantic Cable Telegraph Company the privilege for twenty years to land a submarine telegraph cable at any place on the Atlantic coast except the coast of Florida, and to operate the same, the Government to have the preference in its use, on terms to be agreed upon between the Postmaster-General and the company, Congress reserving the right to alter, amend, or repeal the act. Application was made to the Department of State for the privilege of landing, accompanied by the voluntary assurance of the company that no amalgamation should take place with any other company for the purpose of controlling rates.
In view of these assurances, the landing of the cable was acquiesced [Page 169] in by the President, Mr. Fish, in his letter to Mr. Eckert of January 2, 1877, saying:
On receiving such assurances from the promoters of the company, the President decided to withhold resistance to the landing of their cable.
The President adheres to the views which he expressed to Congress in December, 1875, that no line should be allowed to land on the shores of the United States which is not, by prohibition in its charter or otherwise to the satisfaction of the Government, prohibited from consolidating or amalgamating with any other cable-telegraph line, or combining therewith for the purpose of regulating and maintaining the cost of telegraphing.
These views are understood to have met the approval of Congress and of the people of the United States, indicated by the tacit acquiescence of the Congress, and by the expressed approval of individual members of that body, and the general approval of the public press of the country. In the same message the President announced that the right to control the conditions for the laying of a cable within the jurisdictional waters of the United States, to connect our shores with those of any foreign state, pertains exclusively to the Government of the United States, under such limitations and conditions as Congress may impose, And he further stated that, unless Congress otherwise direct, he would feel it his duty to prevent the landing of any telegraphic cable which does not conform (among others) to the point above referred to.
The President is of the opinion that the control of the United States over its jurisdictional waters extends to the right of discontinuing and preventing their use by a cable whose proprietors may violate any of the conditions on which the Government by acquiescence or silent permission allowed its landing, as well as to the resistance and prohibition of an original landing. (Senate Doc. No. 122, pp. 11, 12.)
The so-called “Second French Cable” was laid by La Compagnie Française du Télégraphe de Paris à Few-York in 1879, from Brest to St. Pierre, and thence to Cape Cod. The company applied, through the French minister, to your Department for permission to land the cable, and the privilege was granted upon substantially the conditions formulated in President Grant’s message of 1875, Mr. Evarts, in his letter of November 10, 1879, to Mr. Outrey, saying:
I have, without delay, brought the subject, together with the information conveyed by your note, to the attention of the President, and he authorizes me to say that, in view of the assurances thus received from the French Government that reciprocal privileges of landing will be granted by France to any company which may be formed by citizens of the United States upon the same terms that these privileges are granted to the present or any future company of French citizens that may apply for such landing privilege; and, having also received the acceptance by the directors of the “Compagnie Française de Télégraphe de Paris à New-York” of the conditions prescribed by this Government, the executive permission of the Government of the United States will be granted to that company to land its cable at Cape Cod, in the State of Massachusetts. It is proper for me to add, however, that this executive permission is to be accepted and understood by the company as being subject to any future action of Congress in relation to the whole, subject of submarine telegraphy as explained in my note to you of the 27th ultimo. (Senate Doc. No. 122, p. 76.)
The Mackay Bennett commercial cable was laid in 1884 from the coast of Europe to the United States, by permission of the President, upon substantially the conditions outlined in President Grant’s message to Congress in 1875. Mr. Felinghuysen, in his letter of December 5, 1883, describes the attitude of the Government thus:
This Government regards with favorable consideration all efforts to extend the facilities for telegraphic communication between the United States and other nations, and, in pursuance of this sentiment the President is desirous of extending every facility in his power to promote the laying of the cables. While there is no special statute authorizing the Executive to grant permission to land a cable on the coast of the United States, neither is there any statute prohibiting such action; and I find on examination of the records of this Department that in 1875 conditional authority was given to land a French cable at Ryebeach, N. H., and that in 1879 permission was given to land a cable at Cape Cod.
These precedents seem to justify a similar concession to the promoters of the present enterprise, which there is the less hesitation in according as they are citizens of the United States. (Senate Doc. No. 122, p. 84.)
On October 18, 1889, the Compagnie Française du Télégraphe de Paris à New-York applied to your Department for permission to lay a cable from San Domingo to the United States. To this request Mr. Blaine replied, December 21, 1889:
While the authority of the President to grant the permission you desire must be accepted subject, of course, to the future ratification by Congress, yet there are certain conditions which he regards as absolutely essential before such provisional permission can be accorded.
These conditions are as follows:
(1) That neither the company, its successors or assigns, nor any cable with which it connects, shall receive from any foreign government exclusive privileges which would prevent the establishment and operation of a cable of an American company in the jurisdiction of such foreign government.
(2) That the company shall not consolidate or amalgamate with any other line or combine therewith for the purpose of regulating rates.
(3) That the charges to the Government of the United States shall not be greater than those to any other government, and the general charges shall be reasonable.
(4) That the Government of the United States shall be entitled to the same or similar privileges as may by law, regulation, or agreement be granted to any other government.
(5) That a citizen of the United States shall stand on the same footing as regards privileges with citizens of San Domingo.
(6) That messages shall have precedence in the following order: (a) Government messages and official messages to the Government; (b) telegraphic business; (c) general business.
(7) That the line shall be kept open for daily business, and all messages, in the above order, be transmitted according to the time of receipt.
Conditions similar to these were required of your company in 1879 in reply to its application for authority to land one or more of its cables on the Atlantic coast of this country, and assented to by the company’s order November 5, 1879. And it would seem needless to add that similar conditions have been imposed upon all cable companies desiring to land their cables from foreign countries upon the shores of the United States. It will be observed, however, that the first condition has been modified to meet a case which did not arise in 1879, of the cable for which the privilege of landing is sought being used as a link in a longer line of communication. Such a case is believed now to exist in respect to the proposed cable between the United States and San Domingo, which is understood to be only a link in a line between the United States and South America. The spirit and purpose of the first condition imposed in 1879 require that American cable companies should not now be excluded from operating and establishing lines between the United States and” South America, either directly or by way of San Domingo.
The President, therefore, directs me to say that if the foregoing conditions are satisfactory to your company, and it will first file in this Department a duly authenticated copy of the concession granted by the Dominican Government to land its cable at Puerto Plata, together with a like certified copy of the conditions imposed by this Government, he will be willing to grant the necessary permission to your company to land its cable at Charleston, S. C, subject to the future action of Congress. (House of Representatives, Fifty-second Congress, first session, Report No. 964.)
The cable company took no steps to comply with these requirements. Nearly two years later, on December 2, 1891, the French Cable Company, through its attorney, Mr. Jefferson Chandler, renewed its application for permission to land a cable. Meantime, on December 1, 1891, the company, through the same attorney, obtained from the legislature of South Carolina a joint resolution purporting to authorize it to land a cable on the coast of that State, and in January, 1892, from the legislature of Virginia an act purporting to authorize it to land a cable on the shore of that State. On March 10, 1892, a joint resolution was introduced into Congress to confirm these grants. This resolution was referred to a committee, of which Mr. Wise was chairman, and to him was addressed the letter of Acting Secretary Wharton of March 22, 1892, published in House Report No. 961, Fifty-second Congress, first session. After receiving this communication the committee reported a [Page 171] substitute granting the landing privilege upon the conditions prescribed by Mr. Blaine. Thereupon, for the time being, the attempt of the company to obtain the consent of Congress ceased.
On June 21, 1893, the same company, through the same attorney, applied again to the Department of State ostensibly for permission to land a cable on the shore of Virginia, but the application was accompanied by a written argument to show that the President had no power to act in the matter; the concluding paragraph of this argument and application being:
I respectfully request, therefore, on behalf of the applicant, that the honorable Secretary of State will decide this application on its merits, and will declare that under the law the States may freely land cables, and that the Executive has no jurisdiction nor disposition to prevent the landing and operation of a submarine cable from the shores of Virginia to any point permitted by the State, and that the authority of the State of Virginia to so permit cable companies to land and establish themselves on its coast is complete, and, further, that no action is required or permitted by any of the executive officers of the Government as the law now is. (Fifty-third Congress, second session, Senate Doc. No. 14; letter of Mr. Gresham.)
In response to this argument, Mr. Gresham, changing the attitude of the Government as established by the Presidents and their Secretaries of State, from President Grant’s time down, declined to act on the application, saying in his communication of August 15, 1893:
There is no Federal legislation conferring authority upon the President to grant such permission, and in the absence of such legislation executive action of the character desired would have no binding force. (Fifty-third Congress, second session, Senate Doc. No. 14; letter of Mr. Gresham.)
October 2, 1895, Mr. Olney addressed a letter to Mr. Scrymser, president of the Central and South American Telegraph Company, in which, in answer to his letter of September 25, 1895, he stated that La Compagnie Franchise des Cables Télégraphiques had not made application for permission to land its cables on the coast of the United Sates, and added:
Furthermore, in the absence of Federal legislation conferring authority upon the Executive to grant such permission, this Department has no power to act in the matter.
On the 24th of October, 1895, Mr. Scrymser laid before your Department certain information concerning an agreement for laying and maintaining submarine cables between France, North America, and the Antilles, to which the Government of France was a party, and suggested that the French minister be officially informed as to the policy of the Government of the United States in the matter of cable-landing privileges on our shores. Replying to this communication, on October 28, 1895, Mr. Olney referred to his former letter, and said:
There is no Federal statute conferring authority upon the Executive to grant or withhold permission to land cables on the shores of the United States. This Department has, therefore, no power to act in the matter, and I am unable to comply with your request.
As a natural sequence of the attitude taken by your Department under Mr. Gresham and Mr. Olney, La Compagnie Française des Cables Télégraphiques, acting in connection with the United States and Haiti Telegraph and Cable Company and the United States and Haiti Cable Company, in 1896 landed a cable, extending from Haiti to this country, at Coney Island, New York, without permission of the Government. This Department, acting through the Attorney-General and the United States attorney, brought an injunction suit against the companies named to prevent the landing and operation of the cable, but in view [Page 172] of the fact that the cable had been landed, the motion for an injunction against its operation was refused. At the same time Judge Lacombe said (77 Fed. Rep., 496):
It is thought that the main proposition advanced by complainant’s counsel is a sound one, and that, without the consent of the General Government, no one, alien or native, has any right to establish a physical connection between the shores of this country and that of any foreign nation. Such consent may be implied as well as expressed, and whether it shall be granted or refused is a political question, and in the absence of Congressional action would seem to fall within the province of the Executive to decide. As was intimated upon the argument, it is further thought that the Executive may effectually enforce its decision without the aid of the courts.
It thus appears that from 1869 to August. 1893, during the terms of Grant, Hayes, Garfield, Arthur, Cleveland (first term), and Harrison, it was held by the Presidents and their Secretaries of State that the Executive has the power, in the absence of legislation by Congress, to control the landing, and incidentally regulate the operation of foreign submarine cables in the protection of the interests of this Government and its citizens. Against this established rule, supported by the opinion of the only United States judge who has passed upon the question, stands opposed the refusal to act of Mr. Gresham, followed by the dictum of Mr. Olney. The attitude taken by your Department under Mr. Gresham has resulted in the landing of two foreign cables upon our shores without permission of this Government and subject to no limitations or restrictions whatever. Must this condition continue? Is the President powerless to act until Congress legislates?
A foreign submarine cable which lands upon our shores in its location enjoys rights upon our territory, and in its operation provides a means of international communication, public and private, political and commercial.
The jurisdiction of this nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. (Mr. Chief Justice Marshall, The Exchange, 7 Cranch, 116, 136.) No one has a right to land a foreign cable upon our shores and establish a physical connection between our territory and that of a foreign State without the consent of the Government of the United States.
The preservation of our territorial integrity and the protection of our foreign interests is intrusted, in the first instance, to the President. The Constitution, established by the people of the United States as the fundamental law of the land, has conferred upon the President the executive power; has made him the commander in chief of the Army and Navy; has authorized him, by and with the consent of the Senate, to make treaties, and to appoint ambassadors, public ministers, and consuls, and has made it his duty to take care that the laws be faithfully executed. In the protection of these fundamental rights, which are based upon the Constitution and grow out of the jurisdiction of this nation over its own territory and its international rights and obligations as a distinct sovereignty, the President is not limited to the enforcement of specific acts of Congress. He takes a solemn oath to faithfully execute the office of President, and to preserve, protect, and defend the Constitution of the United States. To do this, he must preserve, protect, and defend those fundamental rights which flow from the Constitution itself and belong to the sovereignty it created. (Mr. Justice Miller, In re Neagle, 135 U. S., 1, 63, 64; Mr. Justice Field, The Chinese Exclusion Case, 130 U. S., 581, 606; Mr. Justice Gray, Fong Yue Tiug v. United States, 149 U. S., 698, 711; Mr. Justice Brewer, In re Debs, 158 U. S., 564, 582.)
[Page 173]The President has charge of our relations with foreign powers. It is his duty to see that, in the exchange of comities among nations, we get as much as we give. He ought not to stand by and permit a cable to land on our shores under a concession from a foreign power which does not permit our cables to land on its shores and enjoy there facilities equal to those accorded its cable here. For this reason President Grant insisted on the first point in his message of 1875.
The President is not only the head of the diplomatic service, but commander in chief of the Army and Navy. A submarine cable is of inestimable service to the Government in communicating with its officers in the diplomatic and consular service, and in the Army and Navy when abroad. The President should therefore demand that the Government have precedence in the use of the line, and this was done by President Grant in the third point of his message.
Treating a cable simply as an instrument of commerce, it is the duty of the President, pending legislation by Congress, to impose such restrictions as will forbid unjust discriminations, prevent monopolies, promote competition, and secure reasonable rates. These were the objects of the second and fourth points in President Grant’s message.
The executive permission to land a cable is, of course, subject to subsequent Congressional action. The President’s authority to control the landing of a foreign cable does not flow from his right to permit it in the sense of granting a franchise, but from his power to prohibit it should he deem it an encroachment on our rights or prejudicial to our interests. The unconditional landing of a foreign cable might be both, and therefore to be prohibited, but a landing under judicious restrictions and conditions might be neither, and therefore to be permitted, in the promotion of international intercourse.
I am of the opinion, therefore, that the President has the power, in the absence of legislative enactment, to control the landing of foreign submarine cables. He may either prevent the lauding, if the rights intrusted to his care so demand, or permit it on conditions which will protect the interests of this Government and its citizens; and if a landing has been effected without the consent or against the protest of this Government, respect for its rights and compliance with its terms may be enforced by applying the prohibition to the operation of the line, unless the necessary conditions are accepted and observed.
Very respectfully,
Acting Attorney-General.