dition that prevails in those islands. It is better to preserve, in all cases of doubt and difficulty, the present status until the full restoration of the civil régime and the establishment of permanent governments, under which the rights of all can be duly and deliberately determined. (Letter to Secretary of War, June 15, 1899, 22 Op., 514, 519.)

By "present status" I understand the Attorney-General to mean the status quo ante bellum. If the course advised by the Attorney-General is pursued herein it will preserve to each cable company the rights secured by its concession as those rights were understood and exercised under the sovereignty from which they were acquired, and relegate the questions of what changes were effected by the intervention of the United States and the resulting war, and their permanent adjustment to the changed conditions, to the people in whose behalf the intervention was made, and enable that people, in their associated capacity, to determine said questions with reference to such governmental polity as they adopt.

For the convenient reference of the Secretary of War, there is set forth the following extract from the report hereon by Col. H. H. C. Dunwoody, Chief Signal Officer, Division of Cuba (3d indorsement, No. 2105):

In my judgment the interests of the general public, which are of more importance than the interests of a single corporation, will be better served by permitting existing conditions to continue, and leaving the International Ocean Telegraph Company to secure its rights and to collect any damages which may result from the maintenance of these conditions from the government which may be finally established in the island of Cuba.

Also the report hereon of Major-General Wood, military governor of Cuba (4th indorsement, No. 2105):

HEADQUARTERS DIVISION OF CUBA, Habana, September 3, 1900. Respectfully returned to the honorable the Secretary of War, inviting attention to the opinion herein expressed.

The military governor is of the opinion that the International Ocean Telegraph Company is entitled to certain protection and rights, and said rights and protection are violated by the use of the United States land lines for transmitting messages of the French Cable Company between Cuba and the United States, and that the United States Signal Lines should not accept United States messages for the French Cable Company at Santiago. They should not transfer to the French Cable Company at Santiago any messages for the United States. This will no doubt work hardship upon the general public in the way of an increase in the present rates of the International Ocean Telegraph Company, once they are established in the rights granted in this opinion, and in order to protect the public and business interests, a rate not exceeding the one now in force should be fixed and agreed upon by the International Ocean Telegraph Company. The French Company should, however, be allowed to transmit messages from the point of its landing in Cuba (Santiago) to any point in the interior of Cuba, provided such messages are not for transmission to the United States.

If the honorable Secretary of War is in accord with this recommendation, the necessary orders will be issued.

LEONARD Wood, Major-General Commanding.

The foregoing report, in my opinion, embraces all the matters involved essential to the determination of the controversy and the ascertainment of the course to be pursued by the military government of Cuba.

In dealing with cases arising within the territorial jurisdiction of the military government, the Secretary of War adopts the rule that his action, whenever possible, will be confined to indicating the administrative policy or general principles by which a case is to be determined, relegating to the local authorities the matter of ascertaining the facts involved and applying the administrative policy or general principles thereto. Pursuant to this established policy the Secretary of War instructed the military governor of Cuba as follows:

The military governor of Cuba is instructed that in the matter of the use of the overland telegraph lines operated by the government of Cuba to transmit messages received from or destined for points in the United States, via Haiti and over the French cable, he is to ascertain and thereafter maintain the status quo ante bellum, and to reserve the final and exclusive determination of the questions involved for the consideration of the permanent government of the island.

OCTOBER 31, 1901.

ELIHU ROOT, Secretary of War.

The foregoing order was transmitted to the military governor of Cuba in the following communication:

OCTOBER 30, 1901.

SIR: The controversy regarding the relative and respective rights of the cable companies whose cables are landed in Cuba, and the use of the government overland telegraph lines for the transmission of cable messages to and for the French Cable Company, has been carefully investigated in the War Department, and I have listened to extended arguments thereon by the attorneys for the interested companies.

Apparently the only question now involved which the military government has jurisdiction to determine is, Does the transmission of private messages between Santiago, Habana, and elsewhere over the government telegraph lines violate rights of property conferred by the existing cable concessions granted by Spain?

The law officer, Division of Insular Affairs, War Department, has submitted a comprehensive report on the propositions involved in this controversy, wherein matters are set forth which apparently establish that the Spanish concessions to the Cuba Submarine Telegraph Company confers the exclusive privilege of transmitting private telegraph messages passing between any two of the following points in Cuba: Santiago de Cuba, Batabanó, Cienfuegos, and the central station in Habana. This exclusive privilege does not include government messages between said points nor private messages between any one of said points and other points not reserved to the Cuba Submarine Company. If this view is correct, it would follow that the military government of Cuba violates the terms of the concession to the Cuba Submarine Telegraph Company when it permits the government telegraph lines to be used for the transmission of private messages passing between any two of the four points above indicated. In disposing of this matter I think it advisable to follow the ordinary procedure and confine my action to indicating the general policy or principle to be adhered to, and remit the determination of the specific questions involved to the government of the island. I therefore transmit an order herein, instructing you to ascertain, and thereafter maintain, the status quo ante bellum.

I inclose you a copy of the report of the law officer, Division of Insular Affairs, which I think will be of material assistance in ascertaining the previous status and present situation.

Very respectfully,

Brig. Gen. LEONARD WOOD,

Military Governor of Cuba, Habana, Cuba.

ELIHU ROOT, Secretary of War.

Subsequently the following communication was received from the military governor of Cuba:

HEADQUARTERS MILITARY GOVERNOR, ISLAND OF CUBA,

Habana, January 29, 1902. SIR: Referring to your communication of January 24, inquiring as to the action taken in the controversy regarding the French Cable Company, reference being had to letter of October 30 last from the honorable the Secretary of War, I have the honor to inform you that upon receipt of the Secretary's letter the Chief Signal Officer of the Department was directed to institute an investigation for the purpose of ascertaining the status quo ante bellum, as the whole matter seems to have been in a good deal of doubt. However the following order, which, it is believed, establishes the conditions formerly existing, was issued:

[Circular No. 1.]

"To all managers of government telegraph offices, island of Cuba:

"JANUARY 28, 1902.

"By the direction of the military governor no messages destined for any point in the United States, Europe, or beyond will be accepted at any government telegraph office for transmission over the lines of the French Cable Company; nor will any government telegraph office accept from the French Cable Company, or any of its offices, a message from any point in the United States, Europe, or beyond for transmission over the government telegraph lines in Cuba.

"Very respectfully,

Capt. C. R. Edwards,

"LEONARD WOOD, Military Governor of Cuba.”

Tenth Infantry, Dirision of Insular Affairs, War Department, Washington, D. C.

IN THE MATTER OF COMPLAINT MADE BY THE OWNER OF THE BRITISH VESSEL "WILL O' THE WISP" BECAUSE OF CERTAIN RESTRICTIONS PLACED BY THE UNITED STATES UPON TRADE WITH THE SULU ISLANDS, CONTRARY, IT IS ALLEGED, TO THE PROTOCOL OF MARCH 11, 1877, BY THE REPRESENTATIVES OF GREAT BRITAIN, GERMANY, AND SPAIN. ALSO THE DEMAND OF SAID OWNERS FOR TEN THOUSAND DOLLARS FOR DAMAGES OCCASIONED BY THE ENFORCEMENT OF SAID RESTRICTIONS. [Submitted October 24, 1899. Case No. 870, Division of Insular Affairs, War Department.] SYNOPSIS.

1. One of the important incidents of military government is the regulation of trade with the inhabitants of the territory subject to its jurisdiction. The right so to do is well established by the laws and usages of nations.

2. When sovereignty over the Sulu Islands was transferred to the United States the treaties of the former sovereignty respecting trade with said islands ceased. This matter has not been referred to Major-General Otis for a report on the facts. In my opinion such reference and report are unnecessary,

for the reason that the facts as claimed by the complainant are not sufficient to constitute a just cause for complaint nor to entitle complainant to damages.

The complaint is occasioned by the enforcement of the following order:

By the direction of the commander in chief, United States naval force on the Asiatic Station:

All trade with the Philippines is prohibited, except with the ports of Manila, Iloilo, Cebú, and Bakalote. Ships are hereby warned to go nowhere else in the Philippines. (See copy attached to protest, Doc. 1.)

It is claimed that this order is a violation of the terms of the protocol of March 11, 1877, and also protocol of March 7, 1885, made between Great Britain, Germany, and Spain, which, it is asserted, declarethat British ships are absolutely free to trade in the Archipelago of Sulu without touching in the first instance at any stated point in the archipelago and that Spain would in no way obstruct the import or export of merchandise. (See protest, Doc. 1.)

On May 18, 1899, when the Will o' the Wisp sought to trade with the inhabitants of the Sulu Islands, that territory was subject to military government.

Birkhimer on Military Government and Martial Law (p. 204) says:

One of the most important incidents of military government is the regulation of trade with the subjugated district. The occupying state has an unquestioned right to regulate commercial intercourse with conquered territory. It may be absolutely prohibited, or permitted to be unrestricted, or such limitations may be imposed thereon as either policy or a proper attention to military measures may justify. While the victor maintains exclusive possession of the territory his title is valid. Therefore the citizens of no other nation have a right to enter it without the permission of the dominant power. Much less can they claim an unrestricted right to trade therein.

In Fleming . Page (9 How., 615) the court say:

* * *

It is true that when Tampico had been subjugated, other nations were bound to regard the country, while our possession continued, as the territory of the United States and to respect it as such. The citizens of no other nation, therefore, had a right to enter it without the permission of the American authorities, nor to hold intercourse with its inhabitants, nor to trade with them. (See also American Instructions to Armies in the Field, sec. 5, clause 1; Bluntschli, 1, sec. 8; Manning, p. 167.)

Upon the Sulu Islands being ceded by Spain to the United States the treaties of the former sovereignty respecting trade with said islands ceased--that is to say, the agreements made by Spain relative to trade with the inhabitants of the territory ceded do not attach to the soil or become a lien upon the territory which the new sovereignty is bound to assume or maintain.

Hall on International Law (4 ed., p. 98) says:

Thus treaties of alliance, of guaranty, or of commerce are not binding upon a new state formed by separation, and it is not liable for the general debt of the parent state, etc.

The same rule is applied in territory ceded to another state as where the territory separated becomes an independent state. (Id., p. 104.) Halleck on International Law (3 ed., vol. 1, chap. 8, sec. 35) says:

But the obligations of treaties, even where some of their stipulations are, in their terms, perpetual, expire in case either of the contracting parties loses its existence as an independent state or in case its internal constitution is so changed as to render the treaty inapplicable to the new condition of things.

This doctrine originates in the fact that permission to foreign nations to trade with its subjects is an act of grace on the part of the sovereignty. It may be that where the sovereignty. continues a change of persons or instruments by which it is administered does not change the agreement or obligation to extend the grace upon the designated conditions. But where there is a complete change, not only of sovereigns but of sovereignty, of necessity the agreement ends, for each sovereignty must exercise its grace in accordance with its own constitution, laws, and customs.

The most insistent instructor which the United States has had as to this canon of international law has been Great Britain. I shall not attempt to review the instances, but simply call attention to the controversy regarding the fishery privileges upon the coasts of Newfoundland, Nova Scotia, and Labrador, in which England insisted that the separation of a new state from an old one involves the loss, on the part of the inhabitants of the territory of the new state, of local rights within the territory remaining to the old state which had previously been enjoyed in common by the subjects of the original state. (British and Foreign Papers, vol. 7, pp. 79-97.) The controversy was ended by the treaty of 1818, in which the contention of England was conceded to be correct.

In the controversy between the United States and Great Britain with reference to protectorate exercised by the latter power over the Mosquito shore, Lord Clarendon declared that "Mexico was not considered as inheriting the obligations or rights of Spain." (De Martens, Nouv. Rec. Gen., vol. 2, p. 210-216.)

In regard to Mexico, Hall on International Law says (4th ed., p. 101):

The very fact that Mexico succeeded to all the territorial rights of Spain, and consequently to full sovereignty within the territory of the Republic, shows that it could not be burdened by limitations on sovereignty to which Spain had chosen to consent. It possessed all the rights appertaining to an independent state, disencumbered from personal contracts entered into by the state from which it had severed itself.

The sovereignty of the United States in the Sulu Archipelago is not encumbered with the personal contracts entered into by the Crown of Spain regarding trade with the inhabitants of said islands.a

* See ante p. 177 et seq.