File No. 19654/9.

Minister Sherrill to the Secretary of State.

[Extract.]
No. 279.]

Sir: I have the honor to report that I have to-day received from the minister for foreign affairs a note dated the 28th ultimo replying to my note of July 17, 1909, sent to the minister in accordance with the Department’s telegraphic instruction of July 16, 1909, and already reported in my No. 30 of July 19, 1909. In accordance with the instructions contained in the department’s No. 24 of September 30, 1909, I have to-day sent a note to the minister for foreign affairs notifying him that the Government of the United States reserves its rights in the premises and all due assertion thereof should occasion arise.

I have, etc.,

C. H. Sherrill.
[Inclosure.—Translation.]

The Minister for Foreign Affairs to Minister Sherrill.

Mr. Minister: The contract entered into between the National Executive and and Mr. John Oldman having been approved by Congress, to which matter your excellency’s note of July 17 last year refers, whose receipt I had the honor to acknowledge the 31st of the said month, this ministry did not consider a reply thereto indispensable, but the fitness of such having been intimated I am pleased to defer to that desire by means of this note.

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Your excellency, in the said note of July 17, states, under instructions, that your Government supposes that that of this Republic had in mind the treaty of 1853 with the United States and it was not its intention to infringe in any way its provisions, in making a certain cable contract called the “Contrato ad referendum” entered into between Executive and Mr. John Oldman on behalf of the Western Telegraph Co., for the construction and development of a direct cable between the Argentine Republic and the Continent of Europe. Your excellency adds that you hope the Argentine Government will wish to avoid all infraction of American rights under the treaty of 1853 and finally calls my especial attention to articles 8, 13 and 17 of that contract.

The assumption of the Government which your excellency worthily represents is very logical and just. This Government has not forgotten the provisions of the said treaty, not only because they are obligations which it is always ready to fulfill, but also because it is its greatest desire to tighten the bonds of friendship which unite it with the United States.

This Government considers that the contract with the Western Telegraph Co. by its very nature in no way affects the treaty of 1853, and that the most-favored-nation clause therein contained can not be invoked in this case.

The effect and the application of this clause is subordinate to the legal principle of secundum subjectum materiam—that is to say, according to the material. That clause being in a treaty of commerce, its application and the favors which it brings can not be cited, except in so far as they refer to commercial relations and especially regarding customs tariffs, free trade, or protection, without its influence comprehending contracts on ways of communication in general, whether by telegraph or railroad, these being considered as public services and consequently subject to special conventions.

The said principle that the most-favored-nation clause includes only the regulations which govern trade relations has been adopted by many countries, among them the French Republic, where the courts have, in cases submitted to their jurisdiction, expressly so decided it.

Moreover, article 3 of the Treaty of Friendship, Commerce, and Navigation of 1853 between the Republic and the United States, which doubtless served your excellency as a base for the observations which now occupy me, says “That any favor, exemption, privilege, or immunity whatever, in matters of commerce or navigation, which either of them has actually granted, or may hereafter grant, to the citizens or subjects of any other Government, Nation, or State, shall extend, in identity of cases and circumstances, to the citizens of the other contracting party, gratuitously, if the concession, etc.” So that its results are confined to acts of commerce and navigation and the concession in question can not be considered as such, since, as I have shown, ways of telegraphic communications are considered as public services.

Examining this question from another point, it seems proper to add that the landing of cables on one territory to connect it with another country is a matter which is exclusively subject to the will of the sovereign of that territory, from which it follows that the concessions for its improvements are also subject to the will of that sovereign represented by the government of the nation.

This theory, which may be said to be universal, has been applied by England, France, Spain, Portugal, Brazil, Peru, Ecuador, Colombia, Mexico, Japan, etc., in granting exclusive concessions and by the United States itself, as set forth in an official report, of the Attorney General regarding the landing of a cable between territory of the Union and that of the Republic of Cuba. (Official opinions of the Attorneys General of the United States, Washington, 1900, Vol. XXII, pp. 514 to 519.)

It says, among other things, this:

The intention of connecting our territory with foreign territory is a matter which is subject to the sovereign control of this Government * * * permission to land a cable can not be given nor with held in opposition to the desire of the government which exercises sovereign power. The laying of cables-especially in this last quarter of a century, was done at great cost and danger and it has been very common among nations, including the United States, to grant exclusive concessions for a term of years to-companies which raised the necessary capital and were engaged in such enterprises.

I believe that the matter is sufficiently explained to demonstrate that the concession cited in no way affects the treaty of 1853, and that this Government, in according it, did not desire in any manner to infringe the condition thereof and that I might omit referring to articles 8, 13, and 17 of the contract with the Western Telegraph Co., to which my attention was kindly called.

Nevertheless, and with the desire to be deferential to your excellency and your Government, I will add in this respect, that, if indeed articles 8 and 13 of that contract constitute an obligation on the part of the Argentine Government not to accord its assistance to another company and to employ the cable of the Western for its [Page 65] official dispatches, these obligations are compensated for by those which the company incurs for the benefit of the State, and thus is decided the problems of transcendental importance of direct communications with the Continent of Europe and North America, freeing them from the surcharges and high rates to which they are subject to-day.

With regard to article 17, the right which it establishes is simply a preference and does not constitute a privilege, having reference to the legitimate and reasonable purpose of assuring during a certain time the interest on capital invested, and it is only under like conditions that cables which could be constructed in virtue of conventions with foreign powers are excluded.

I renew, etc.,

V. de la Plaza.
[Enclosure 2.]

Minister Sherrill to the Minister for Foreign Affairs.

Mr. Minister: I have the honor to acknowledge the receipt to-day of your excellency’s note of the 28th ultimo setting out that in the opinion of your excellency’s Government the contract entered into with the Western Telegraph Co. for the construction and operation of a direct cable between the Argentine Republic and Europe does not in any of its terms infringe upon the provisions of the treaty of 1853 between the United States and the Argentine Republic.

While taking due note of the Argentine Government’s view of the case as set forth in your excellency’s note, I am instructed to advise your excellency’s Government that the Government of the United States reserves its rights in the premises and all due assertion thereof should occasion arise.

I avail myself, etc.,

C. H. Sherrill.