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15 PUBLIC RECORD OFFICE, LONDON
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graph cables worked from or passing over the territories of neutral States. advice then given (see Report to Foreign Office of the 7th May, 1898) was based upon the principle that
'There is no general obligation by international law on the part of a neutral Government to prevent the transmission by its subjects, or from its territories, of the messages of belligerents by telegraphic lines or cables. Such messages may be carried subject to the risk that the other belligerent may protect himself by cutting the cable on the high seas or in the enemy's territorial waters."
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The statement of this principle was, however, qualified and illustrated by expres- sions of opinion with reference to particular cases. Thus, it was said that—
"In the case of a belligerent cruiser putting into one of the ports of a neutral Power, there is an exception to the general rule. It is a term of her admission that she shall not use the neutral port in furtherance of hostile operations. We therefore think that the neutral Government should prevent, so far as practicable and authorized by municipal law, the use even of a telegraph worked by a commercial Company for the transmission from a neutral port, by or on behalf of such a cruiser, of messages in cypher, or of other messages the object of which is to direct or influence warlike operations.
"But we do not think that a neutral Government is bound, even in this case, to object to the transmission of messages which have no relation to the proceedings of the belligerents, or of messages not in cypher the object of which is to give a narrative of past operations bona fide intended for general publication as news.'
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The Law Officers also expressed the opinion that the exception relative to the use of a cable in a neutral port by a belligerent cruiser did not extend to a mere despatch- boat in the service of a belligerent.
As to the means of giving effect to the principles laid down, the Law Officers advised that
The
'The Commander of the cruiser should be informed that it is a condition of being permitted to use the port that he should abstain from transmitting or procuring the transmission of any telegrams relating to the conduct of warlike operations. Company should also be informed of the views of the Government, and would probably itself establish a censorship in accordance with those views of the telegrams tendered for transmission.
"There is, however, no general power on the part of Her Majesty's Government to control private Telegraph Companies. The power is to require belligerent vessels not to use them."
Upon receipt of this advice, and on an inquiry from the Post Office, the Foreign Office informed the Post Office (by letter of the 21st May, 1898) that in the opinion of Lord Salisbury-
"It was unnecessary to issue any instructions with regard to the control of tele- grams of belligerents to the officers of the Post Office engaged in the collection, trans- mission, or delivery of inland or foreign telegrams in the United Kingdom, or to com- municate on the subject with any of the Cable Companies transacting foreign business in this country."
Meanwhile, on the 17th May, the Colonial Office issued a Circular to the Gover- nors of Colonies communicating rules (founded on the Law Officers' advice) to be observed during the war with respect to the use of telegraph cables. These rules stated that-
"The fact of a state of war existing between the United States and Spain is not of itself sufficient to justify the establishment of a censorship, so as to prevent the trans- mission of messages of belligerents; nor does it justify a Colonial Governor in taking possession of the lines of a Cable Company, or assuming control of the transmission of messages by such a Company. Should, however, special circumstances occur which, in his opinion, render control expedient, it is desirable that he should telegraph to the Secretary of State for instructions.
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A belligerent man-of-war should be prevented from using the telegraph for the purpose of sending, whether in cypher or otherwise, messages of which the object is to direct or influence warlike operations.
"A belligerent man-of-war may, however, use the telegraph for messages which do not relate to the proceedings of the belligerents or for messages which are not in cypher narrating past operations, and bona fide intended for general publication as news.
"The officers in command of belligerent men-of-war should be informed that it is a condition of their being permitted to use a colonial port that they shall abstain from
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transmitting or procuring the transmission of any telegrams which concern the conduct of warlike operations. This condition should also be communicated to the Telegraphi Companies.
Vessels which merely carry despatches may be permitted to telegraph, and should not, except under special circumstances, be subjected to the same conditions as belligerent men-of-war with respect to not using the cable. If any special circum- stances arise, a telegram should be sent to the Secretary of State asking for instruc- tions. Consular officers have a right to free communication with their Governments, whether in clear or in cypher; but if there should be reasonable grounds for believing that such an officer is abusing this right, and is sending messages which relate to the conduct of warlike operations on behalf of a belligerent man-of-war, the facts of the case should be immediately reported to the Secretary of State by telegraph."
Before these instructions had been received, the attitude to be adopted towards a belligerent cruiser seeking to use a cable at a British port had become a practical question. On the 2nd May a Spanish man-of-war put into Bridgetown, in Barbados. The Governor thereupon, after an exchange of telegrams with the Colonial Office, put in force a provision (section 15) of the West India and Panama Telegraph Company's Act (No. 27 of 1890), and established a censorship, through the Company's clerk in charge, over the telegrams tendered for transmission by the Company's cable. During the existence of the censorship a telegram in cypher was handed in from the United States' Consul to the State Department at Washington. The telegram was handed to the Governor, and subsequently interpreted. Finding that it contained information of the arrival of a Spanish troopship, the Governor declined to allow it to be sent. During the same day the Spanish Consul stated that he was desirous of sending two telegrams, one to the Minister in Madrid, and one to friends of the Commander of the Spanish war-ship. Upon being informed, however, that they must be submitted for the perusal of the Governor, the Consul abandoned his intention.
In consequence of this occurrence, the Law Officers, at the request of the Colonial Office, applied the principle laid down in their opinion of the 7th May to the case in question, and advised—
"(a) That the Governor ought not to have instituted a censorship merely because a belligerent man-of-war put into the port.
"(b) That the Governor had no other power (i.e., other than the power conferred by the local statutory provision under which he established the censorship) to control the cable. He had power to make it a term of the admission of the Spanish vessel (to the port) that the cable should not be used for warlike purposes, and could enforce the performance of this condition by preventing, if necessary, access to the telegraph office by the Captain or his subordinates."
It thus appears clear that the Law Officers in 1898 took the view that Her Majesty's Government had no power, save in pursuance of some express provision of a Statute or other instrument binding the Company, to control private Telegraph Companies in the use which they might choose to allow of their cables or lines. This conclusion makes it of some importance to consider what are the special provisions for control now existing, and whether further provision in that behalf should be made.
The Telegraph Act of 1863 contains a provision, in relation to Companies, to which the Act applied, to the following effect: ---
"52. Where, in the opinion of one of Her Majesty's Principal Secretaries of State, an emergency has arisen in which it is expedient for the public service that Her Majesty's Government should have control over the transmission of messages by the. Company's telegraphs, the Secretary of State, by warrant under his hand, may direct and cause the Company's works, or any part thereof, to be taken possession of in the name and on behalf of Her Majesty, and to be used for Her Majesty's service, and subject thereto for such ordinary service as may seem fit; or may direct and authorize such persons as he thinks fit to assume the control of the transmission of messages by the Company's telegraphs, either wholly or partly, and in such manner as he directs. Any such warrant shall not have effect for a longer time than one week from the issuing thereof; but the Secretary of State may issue successive warrants from week to week as long as in his opinion such emergency continues. The Commissioners of Her Majesty's Treasury shall pay to the Company, as compensation for any loss of profit sustained by the Company by reason of the exercise by the Secretary of State of any of the powers of the present section, out of money to be provided by Parliament for the purpose, such sum as may be settled between the Secretary of State and the Company
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