Brulatour to Fred’k T. Frelinghuysen, June 19, 1884

No. 100. Mr. Brulatour to Mr. Frelinghuysen.

Sir: Mr. Morton, upon receiving your telegraphic instruction to remonstrate against the qualified instruction given to the Commercial Gable Company to land in France, as being in violation of the agreement of 1879, called on Mr. Ferry, to whom he explained the grounds of your formulating objection. With a view of precising the question, and of recalling it distinctly to the president of the council, Mr. Morton addressed to him the next day a written communication, stating again the case as you understood it, and expressing the hope that our friendly representation would be well received.

The reply of Mr. Ferry, dated the 12th, only came to hand on the 15th. It is a mere summary of a note from the minister of posts and telegraphs, Mr. Cochery, which he transmits at the same time.

Mr. Cochery, in this note, touches points not directly at issue, but, with reference to the main question, he confines himself to the statement that the Commercial Cable Company, having no direct communication with France, cannot be assimilated to the French company, and he dismisses the complaint in relation to the right which the Government has reserved to withdraw the privilege granted, upon giving one year’s notice, by simply asserting that this is a “general police right which exists by right in all concessions.”

With the object of not letting Mr. Ferry remain under the impression that so unsatisfactory an answer to our reasonable complaint could be accepted, in acknowledging the receipt of his communication I said that, having no instruction to discuss this matter, I had referred it to you, but explained at the same time my inability to conciliate the position taken by the minister of posts and telegraphs with the plain terms of the agreement of 1879.

The minister of foreign affairs, in his summary of the note of Mr. Cochery, states that the permission given to the Commercial Cable Company to lay a cable across the channel is an exceptional favor which has not been granted heretofore to any other company.

By a contract made in 1859 the French Government has ceded to the Submarine Telegraph Company the monopoly of connecting by cable France with the British Islands.

This monopoly, which expires in 1889, is subject, however, to one exception—the French Government has reserved the right of authorizing the establishment of one line connecting France with Ireland for the exclusive purpose of transmitting dispatches to and from America. This right having never been availed of, the French Government would have really conferred an exceptional favor upon the Commercial Cable Company by transferring it to that company. But this was not done, and the Commercial Company had to purchase from the Submarine Telegraph Company the privilege of laying the cable which will connect France with Ireland, a privilege already conceded for a consideration to the French and English lines. The exceptional favor granted to the Commercial Cable Company consists, therefore, in consenting to make no objection if the Submarine Telegraph Company is willing to make use of its monopoly to the advantage of France.

The minister of foreign affairs states also that the privilege given to the Commercial Cable Company is not limited to 1889, as that given to the other companies. That is true; but its privilege can be suppressed at any time upon one year’s notice being given.

Thus, while the English company secured a lease of twenty years and the French company a lease of ten years when they were organized, the Commercial Cable Company can never be sure of existing more than one year.

In both the French and American concessions the telegraphic rate is limited;’ but if the American company finds it Necessary to reduce its tariff in order to compete with the other lines, it cannot raise it again without an authorization of the Government, an authorization which may be withheld for a certain time and which is not needed by the English company.

Mr. Cochery in his note lays much stress upon the fact that the Commercial cable touches Ireland before reaching the United States, a fact from which he draws the inference that it does not thus connect directly the two countries. Mr. Cochery himself seems to have been of a different opinion when he drew up the conditions upon which the Commercial Cable Company was to receive its privilege, for article 1 of these conditions states that the company is authorized “to land upon a point to be determined a transatlantic cable connecting directly France with North America by touching at an intermediary point in Ireland, and which is to be used exclusively for the transmission of dispatches exchanged with America.”

I inclose herewith copy of the correspondence exchanged in relation to this subject.

I have, &c.,

Note from the ministry of posts and telegraphs.

note relative to the commercial cable company.

The observations presented by the legation of the United States appear to have been caused by a misunderstanding. It seems, therefore, necessary to insist upon the difference of the situation which exists between the new concession and the concessions previously accorded.

The latter, in fact, apply to cables connecting directly France and North America, without touching the territory of any other country in their course. It was upon these conditions that the French company from Paris to New York was established, which gave rise on the part of the Government of the United States to the claim of reciprocity recalled by Mr. Morton.

The application of Messrs. Mackay and Bennett is presented under altogether different conditions.

It has for object the establishment between France and Ireland of a cable which will join at Valentia a transatlantic line, of which it will be the tributary. The submarine conductor, commencing at Havre, will not, therefore, constitute a direct communication with America; it will simply be the means of forwarding dispatches from the Contient to the principal cable terminating in Ireland.

In consequence no assimilation can be established between this new concession and that which has been accorded to the French company from Paris to New York.

It was, besides, in consequence of the intervention of the minister of the United States that no objections were raised when the grantees indicated their intention of having a landing place in Ireland.

On the other hand, for the concession of the cable between France and Ireland, the French administration is far from being placed in the identical conditions to those which apply to the transatlantic cables.

In fact, article 3 of the convention, concluded on January 2, 1859, with the Compagnie des Cables de la Manche, grantee of a privilege for the establishment of the cable between France and Great Britain, stipulates only that—

“The French Government reserves to itself the right to authorize, as it may seem fit, the establishment of a telegraphic line commencing at any point upon the coast of France and terminating directly on the coast of Ireland, and intended exclusively for the transmission from or for America by the transatlantic cable.”

As, therefore, it is not admissible that the administration will abandon a unique right, the enjoyment of which it should reserve for its direct necessities, it has only been enabled to grant the authority under a reservation of an understanding between the grantee and the Compagnie des Cables de la Manche.

It was then impossible for it to make a concession under identically the same conditions as those of the other concessions.

Messrs. Mackay and Bennett perfectly understood this, and made no difficulty in accepting, on the 1st of February last, the prepared stipulations (cahier des charges) for their concession.

These stipulations contain a redemption clause destined to fix, if necessary, the duration of the concession to the uniform stated period for all the cables laid across the channel between France and England, that is to say, to 1889.

Moreover, there was a question, for the same motive, of limiting to 1889 the concession granted to Messrs. Mackay and Bennett, and it was upon the application of the grantees that the repurchase clause was substituted for this provision of limitation.

It was under these conditions that an understanding was arrived at in the month of March last, and it was not then the subject of any observation on the part of the Government of the United States.

Since that time the grantees, having allowed the period for regulating their concession to expire, have recently been obliged to apply for the renewal thereof.

The same stipulations were presented to them. They then raised an objection with reference to the right of repurchase. Upon their application this clause was suppressed, and it was simply agreed to add to the conditions the right to terminate the authorization granted by the French Government upon giving notice a year in advance. This is the indication of a general right of police which exists of full right in every concession.

The legation of the United States appears, besides, to contest the right of the French Government of imposing conditions for the concession of the cable.

It is necessary, with reference to this subject, not to lose sight of the difference which exists between the conditions of organization of the telegraphic service in France and in America.

In France the telegraph is submitted in an absolute manner to the monopoly of the state.

In the United States it is freely worked by private industry.

It is clear, then, that, in the latter country it is possible to authorize the establishment of submarine cables without conditions, but it cannot be the same in France, where this manner of proceeding would constitute an infringement upon the monopoly of the state.