CONTROL OF CABLES.

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Hertzian waves. As these waves were discovered in 1887, it is but natural that no extended international law precedents in regard to their use have yet been established. The Hertzian waves may move to a considerable distance in any direction from the generator. They may by proper apparatus be received at any point within this sphere. The present lack of control of the direction in which the waves may move differentiates the service in this respect from that of wire telegraphy.

There are various systems of transmitting and receiving the Hertzian waves. Certain states have given preference to a single system, while other states permit the use of several systems. The Telefunken system is used in Germany and in the German navy. The same system is receiving favorable consideration in Holland, Norway, and South American States, and also Sweden, and has been the subject of experimental use in some of the British dependencies. In Russia the Popoff system is used. The Rochefort and the Ducretet systems have received support in France. The Marconi system has exclusive rights in Italy and extensive use elsewhere. In the United States the Telefunken, Deforest, and Marconi systems are in use. Certain countries have special systems or variations of the above systems in use. The great diversity in control and in operation shows the need of governmental and international regulation.

Control of submarine cables. The principles of control as stated in the Naval War College lectures on Submarine Cables in 1901 seems to apply in some respects to wireless telegraphic equipment. It was maintained in regard to submarine cables that, "The right to legislate for this form of property is, therefore, in the power of the state, or in case no legislation has been enacted, the legal control is in the proper department of the government." This position was affirmed by Secretary Fish as early as July 10, 1869, as follows:

It is not doubted by this Government that the complete control of the whole subject, both of the permission and the regulation 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 to proprietary rights in aid of such enterprises, the entire question of allowance or prohibition of means of foreign intercourse, commercial or political, and of the terms and the conditions of its allowance is under the control of the Government of the United States. 122, p. 65.)

(Sen. Doc.

President Grant took practically the same position in his message of December, 1875, and since that time the position has often been reaffirmed. All foreign submarine cables having a terminus in the United States have been landed under a distinct condition that the "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." An opinion of the Attorney-General, in accordance with which the President was entitled to act and to order all the departments of executive character to act, sums up the matter as follows:

*

The preservation of our territorial integrity and the protection of our foreign interests is intrusted, in the first instance, to the President. * * 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 concessions 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. * * * 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 * * * 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. (22 Opin. Atty. Gen., p. 25.)

GERMAN AGREEMENT.

In a later decision it was held that

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the same restriction applied to the landing of submarine cables in Cuba in the time of military occupation on the island. (Ibid., p. 515.)

There can, then, be no doubt that for the executive branches of the United States Government the principle of control by the President is established in absence of any legislation to the contrary. (Wilson, Submarine Telegraphic Cables in their International Relations, p. 11.)

Agreement between United States and Germany. The conditions under which submarine cables are permitted to be laid and operated within United States territory are shown in the following memorandum:

MEMORANDUM.

In the matter of the application of the Deutsch-Atlantische Telegraphen-Gesellschaft of Germany for permission to land on the shores of the United States a submarine telegraph cable, to be laid between Germany and the United States.

The President having duly considered said application, hereby consents that said company may lay, construct, land, maintain, and operate telegraphic lines or cables on the Atlantic coast of the United States, to connect Borkum-Emden, in the Empire of Germany, and the city of New York, touching at the Azores.

It is a condition to the granting of said consent that said company first file with its said application, in the Department of State, its written acceptance of the terms and conditions on which said consent is given, to wit:

I.

That neither the said 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.

II.

That the company has received no exclusive concessions from any government which would exclude any other company or association, which may be formed in the United States of America, from obtaining a like privilege for landing its cable or cables on the shores of Germany, and connecting such cable or cables with the inland telegraph system of said country.

III.

That the said company shall not consolidate or amalgamate with any other line or combine therewith for the purpose of regulating rates.

IV.

That the company will, in the transmission of official messages, give precedence to messages from and to the Government of the United States of America and of other governments.

V.

That the rates charged to the Government of the United States shall not be greater than those to any other government, and the said rates and those charged to the general public shall never exceed the present telegraphic rates between said counties, and shall be reasonable.

VI.

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 by said company or its successors or assigns to any other government.

VII.

That the citizens of the United States shall stand on equal footing as regards the transmission of messages over said company's lines with citizens or subjects of Germany or any other country with which said cable may connect.

VIII.

That messages shall have precedence in the following order: (a) Government messages and official messages to the Government.

(b) Service messages.

(c) General telegraphic messages.

IX.

The said line shall be kept open for daily business, and all messages in the order above be transmitted according to the time of receipt.

X.

That no liability shall be assumed by the Government of the United States by virtue of any censorship which it may exercise over said line in the event of war or civil disturbance.

REPORTS OF BOARDS.

XI.

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That the consent hereby granted shall be subject to any future action by the Congress or by the President, affirming, revoking, or modifying, wholly or in part, the said conditions and terms on which said permission is given. (U. S. Foreign Relations, 1899, p. 311.)

The conditions set forth in this memorandum show that the United States retains full power over cables which are permitted to operate within its jurisdiction. This principle of control would involve censorship over or even discontinuance of the service. The control would also involve some degree of responsibility. It may be reasonable to expect, so far as practicable, a corresponding control of wireless telegraphy. The medium of communication is not the same, but the principles involved are to some extent similar.

Report of Inter-Departmental Board. The conclusions of the Inter-Departmental Board on wireless telegraphy, made to the President of the United States, July 12, 1904,

are:

That the maintenance of a complete coastwise system of wireless telegraphy by the Navy Department is necessary for the efficient and economical management of the fleets of the United States in time of peace and their efficient maneuvering in time of war.

That the best results can be obtained from stations under the jurisdiction of one Department of the Government only, and that representatives of more than one Department should not be quartered at any station.

And finally the Board concludes that the Government must take the necessary steps to regulate the establishment of commercial wireless telegraph stations among the States and between nations. (Report, p. 9.)

Report of General Board, Navy.-Some form of effective Government control of wireless telegraphy seems necessary both for commercial and military reasons. It also seems proper that as in the postal service, and in the telegraph service in certain States, Government employees should be placed in charge of the wireless communication. The General Board, Navy Department of the United States, in a report to the Secretary of the Navy,