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PUBLIC RECORD OFFICE
། ༄། ། །། ༄།
ستسلسللينا
Reference :-
C.O. 885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC. COPYRIGHT PHOTOGRAPH-NOT TO
15 PUBLIC RECORD OFFICE, LONDON
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by agreement, or, in case of difference, by arbitration, such arbitration to be conducted in manner provided in the last foregoing section, the Secretary of State being only substituted for the Board of Trade."
The Telegraph Act of 1863 applied only to Companies authorized previously or subsequently to 1863, by Special Act of Parliament, to construct and maintain telegraphs.
But by "The Telegraph Act Amendment Act, 1866," the provision just quoted was applied to "all incorporated Companies, existing or future, constituted with the object of carrying on the business of constructing, maintaining, or working telegraphs, and to the works of those Companies."
A clause relating to the possession of cables in an emergency has also been in- serted in many landing licences granted by the Board of Trade, in Colonial licences and Statutes, and in contracts by which the Treasury have subsidized Cable Companies. Specimens of these provisions are annexed to this Case. It will be seen that they differ considerably in wording, and that while most forms of the clause seem to deal with censorship only as an incident of the possession of the cables, one or two-such as the provision in the Act of 1863 and that in "The Indian Telegraph Act, 1885"-contem- plate a censorship as an alternatiye to taking possession.
In all instances the clause relates to cases of emergency, and this expression has generally been interpreted to relate to a war or some civic commotion directly affecting the United Kingdom or some other part of the Empire. Probably, however, as we shall have occasion to remark at a later point in the Case, it is not necessary to place so restricted an interpretation on the expression,
In connection with a recent application of the Eastern Telegraph Company to lay two new cables from Porthcurno, in Cornwall, to Gibraltar, the question arose whether, by express provision, the Company should be required to institute a censorship in accordance with the directions of the Government to facilitate the discharge by this country of its obligations as a neutral in time of war, and the following clause was prepared by the Solicitor to the Post Office for consideration :-
"In case of war, the Company shall conform to such directions as may be given from time to time by the duly accredited Representative of Her Majesty's Government at any port or place in Her Majesty's dominions where the Company transacts business, with reference to the reception, transmission, or delivery of messages of a belligerent."
The clause was drawn merely to indicate the principle to be asserted, and requires revision in detail.
As the policy of inserting such a clause seemed to require some consideration, the Company were in the result allowed to take their licence without the clause, on an undertaking to agree to its subsequent insertion, if desired by Her Majesty's Govern-
ment.
As international law is founded on the practice of civilized nations, the acts of the several parties during the recent Spanish-American war, and the drift of opinion which they seem to show on the question of the duties of neutrals towards belligerents, with respect to cables on neutral territory, will probably be thought to be relevant to the consideration of this question.
In the first place, then, the use of cables passing from the seat of war in the West Indies over British territory to Spain took place continuously, without remonstrance of any kind, diplomatic or otherwise, on the part of the United States.
Thus, on the 29th April, it was reported from Kingston in Jamaica that-- "The cable with Santiago de Cuba is working unceasingly, and long Spanish cypher messages are being sent and received." (See "Standard" of May 2, 1898.)
Daily communications took place during the early part of May between Marshal Blanco, commanding in Cuba, and the Spanish Government, such communications passing via Jamaica and Bermuda; also between Marshal Blanco and General Macras, the Governor of Porto Rico, such communications necessarily passing via Jamaica.
On the 14th May (see "Standard" of that day) General Macras was enabled to announce, through this channel, the bombardment of San Juan by the Americans. Admiral Cervera, again, when he reached Santiago de Cuba, was enabled to keep in touch, via Jamaica and Bermuda, with the authorities in Madrid. Such communica- tions were uninterrupted until the Santiago terminus of the cable to Jamaica fell into the hands of the Americans.
So, in the East, up to the day (2nd May) when Admiral Dewey cut the cable between Manila and Hong Kong, the messages of the Spanish Admiral and General
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at Manila were transmitted from that place via Hong Kong (i.e., over British territory) to Madrid, without remonstrance or question on the part of the United States. The same messages also passed at one point over Egyptian territory.
The action of Admiral Dewey in cutting the cable over which these messages were sent exactly confirms the opinion expressed by the Law Officers. The United States, by refraining from diplomatic remonstrance, and by adopting the alternative of cutting the cable, indicated that in the opinion of the Government of that country there was no obligation on Great Britain "to prevent the transmission by its subjects or from its territories of the messages of belligerents," but that "such messages might be carried subject to the risk that the other belligerent might protect himself by cutting the cable.'
We have dealt so far with messages passing between two points on the territory of one of the belligerents, and merely transmitted in their course over the territories of a neutral.
But the practice of the belligerents went further. Jamaica was constantly used by the United States' cruisers as a point for handing in despatches. The following are reports in the press proving such use:-
'Washington, May 29.
The Navy Department has received a despatch from Commodore Schley, brought by the Harvard' to Kingston, Jamaica, and thence cabled here (Washington) to the effect that he was still blockading Santiago, but whether Admiral Cervera was there
("Daily Mail," May 30.) or not was not definitely known."
"Washington, May 30.
"All doubts as to Admiral Cervera's whereabouts have been dispelled by a de- spatch from Commodore Schley, which was cabled from Kingston, Jamaica. Mr. Long cabled to Commodore Schley:-
Under no circumstances permit the Spanish to escape. Capture or destroy.'” ("Daily Mail," May 31.)
ff
A telegram from Kingston, Jamaica, says that there has been a rapid exchange
of despatches between Commodore Schley and the Washington Government during the past thirty-six hours, and that an important movement on the part of the American squadron is expected shortly." ("Standard," June 1.)
The Island of St. Thomas was similarly used. For example, Admiral Sampson telegraphed on the 12th May to the Navy Department, Washington:-
"A portion of squadron under my command reached San Juan this morning at daybreak. No armed vessels were found in the port." ("Times," May 12, 1898.)
On the 17th May it is reported from Washington that-
"A despatch from St. Thomas states that the 'Yale' bad begun coaling, Lut was stopped suddenly by order from the authorities. On Monday evening she cleared the port and headed westward." (" Standard,” May 18, 1898.)
Similarly, telegrams were sent by United States' officials at Curaçoa and Hayti to the authorities at New York, either giving information as to the enemy's move- In particular, Adnural ments or asking for orders as to the operations of the war. Sampson is said to have sent despatches to Washington via Hayti, where they were handed in by a torpedo-boat, and to have announced the sinking of a ship in the channel at Santiago by similar means.
The cables at Martinique were used in like manner, as appears from the following reports:-
'Washington, May 13.
"Despatches from Captain Cotton, Commander of the 'Harvard, best known as the former liner 'New York,' were received at the Navy Department to-day. They state that four Spanish armoured cruisers and three destroyers called at Port de France, and passed St. Pierre bound northward in the direction of Cuba." ("Stan- dard," May 14.)
"New York, May 13.
"The Herald' correspondent at St. Pierre, Martinique, telegraphing via Hayti, says that the Spanish torpedo-boat destroyer 'Furor' arrived there late on Wednesday night, but immediately put to sea again. Her arrival created tremendous excitement; about 5 o'clock on Thursday afternoon the Spanish torpedo-boat destroyer 'Terror' also arrived at St. Pierre."
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As this despatch goes," continues the correspondent, "five Spanish war-ships are