Navy Department the right to manufacture, at such place or places as might be convenient, to the end of the term for which said letters patent were granted, guns containing the patented improvements, and to use and sell the same, the consideration of this license being that the Bureau of Ordnance was to pay to Dashiell $125 as a license fee upon every gun manufactured under the license containing the patented improvements. After this license was executed by Dashiell to the Bureau of Ordnance it seems that he sold his letters patent and the rights and franchises accruing to him thereunder to the American Ordnance Company, and this company now insists that the contract with Dashiell only confers the Bureau of Ordnance a shop license to manufacture these breech mechanisms upon the payment of a royalty of $125 each.

upon

My opinion is requested as to whether or not, under the license from Dashiell to the Bureau of Ordnance, the United States is confined to its own shops in the manufacfure of this patented article or has the right under the license to contract with other parties for the making of the patented article for the use of the Government.

The license from Dashiell is as follows:

"This agreement, made this 22d day of January, 1892, between Robert Brooke Dashiell, Ensign, U. S. Navy, party of the first part, and the Bureau of Ordnance, Navy Department, Washington, D. C., party of the second part, witnesseth, that whereas letters patent of the United States for an improvement in breech-loading ordnance will be granted to the party of the first part, dated February 9, 1892; and whereas the party of the second part is desirous of manufacturing guns containing said patented improvement: Now, therefore, the parties have agreed as follows:

"I. The party of the first part hereby licenses and empowers the party of the second part to manufacture, subject to the conditions hereinafter named, at such place or places as may be convenient, to the end of the term for which said letters patent were granted, guns containing the patented improvements, and to use and sell the same.

"II. The party of the second part agrees to make full and true returns to the party of the first part, upon the first day

of January and July in each year, of all guns containing the patented improvements manufactured by them.

"III. The party of the second part agrees to pay to the party of the first part one hundred and twenty-five dollars as a license fee upon every gun manufactured by said party of the second part containing the patented improvements.

“IV. Upon a failure of the party of the second part to make returns or to make payment of license fees, as herein provided, for ninety days after the dates herein named, the party of the first part may terminate this license by serving a written notice upon the party of the second part; but the party of the second part shall not thereby be discharged from any liability to the party of the first part for any license fees due at the time of the service of said notice. "In witness whereof," etc.

In these subdivisions the language is "to manufacture" (I); “manufactured by them" (II); "manufactured by said party of the second part" (III). It is not, therefore, the primary signification of the language to convey the right to have manufactured. If the latter is to be declared, it must come from implication from other rights. Subdivision one is the granting one, and it may be abridged as follows: "The party of the first part licenses and empowers the party of the second part to manufacture guns containing the patented improvements and to use and sell the same."

* * *

In Adams v. Burke, 17 Wall., 456, the Supreme Court of the United States said:

"The right to manufacture, the right to sell, and the right to use are each substantive rights, and may be granted or conferred separately by the patentee."

Some of these rights may be extended by implication (§ 296 et seq., Walker on Patents). For instance, from the right to use, the right to make or have made may be implied. But this implication can only be made when the right to use is unrestricted. I do not think it is unrestricted in the agreement. The language is not "to manufacture, use, and sell guns containing the patented improvement," but "to manufacture guns containing the patented improvement and to use and sell the same." The language is aptly chosen to con

fine the use and sale to guns manufactured by the United States, and, besides, this construction is supported by the other provisions of the agreement by which the right to manufacture is strictly confined.

The answer to your inquiry, therefore, is that the United States has the right only to manufacture in its own shops and not to contract with other parties.

Respectfully,

The SECRETARY OF THE NAVY.

JOSEPH MCKENNA.

FOREIGN CABLES.

The President has the power, in the absence of legislation by Congress, to control the landing of foreign submarine cables on the shores of the United States. He may either prevent the landing, if the rights intrusted to his care so demand, or permit it on conditions which will protect the interests of this Government and its citizens.

If a landing has been effected without the consent or against the protest of this Government, respect for its rights and compliance with its terms may be enforced by applying the prohibition to the operation of the line unless the necessary conditions are accepted and observed. No one has a right to land a foreign cable upon our shores and establish a physical connection between our territory and that of a foreign state without the consent of the Government of the United States. The jurisdiction of this nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.

The preservation of our territorial integrity and the protection of our foreign interests is intrusted in the first instance to the President. Under the obligation entered into by the President it is his duty to preserve, protect, and defend the Constitution, to do which he must preserve, protect, and defend those fundamental rights which flow from the Constitution itself and belong to the sovereignty it created. DEPARTMENT OF JUSTICE, January 18, 1898.

SIR: On May 4, 1897, the French ambassador submitted to your Department the application of the French Company of Telegraphic Cables (the successor of "La Compagnie Française du Telégraphe de Paris à New York") for permission to land a cable supplementary to that which it has between Brest and Cape Cod, upon the same terms and con

ditions as those which were imposed by the President in 1879 when the original cable was landed.

On May 11, 1897, your Department replied to this request, saying:

"The present Executive does not regard himself as clothed, in the absence of legislative enactment, with the requisite authority to take any action upon the application which you present. A bill was introduced in the last Congress giving the President of the United States express authority to authorize the landing of submarine cables on the shore of the United States, subject to conditions therein specified, but it failed to become a law. Until Congress shall see fit to clothe the President with power to act in matters of this kind he will be compelled to refrain from doing so."

On June 4, 1897, your Department addressed a note to the French ambassador calling his attention to the fact that it had been represented to the Department that a steamer from France had arrived at Cape Cod with the avowed purpose of laying the shore end of the new cable, and saying:

"It is the expectation of the Federal Government that that company (the French Cable Company) will take no steps toward laying its proposed cable from Cape Cod without express authorization of the President or of Congress, before which, as I have observed to you, a bill was introduced at the last session, but which has not yet been enacted into law. If that company should, however, take action in the manner proposed, it is proper to say that it would do so at its peril."

On June 5, 1897, another note was sent, informing the French ambassador of advices received to the effect that about 1,000 feet of the new French cable had been laid at Cape Cod the day before, and saying:

"Before taking any further action in the matter, I request that you will promptly instruct the proper authorities of the French Telegraph Company, in case the Department's information should be correct, to immediately desist from its work, pending the necessary authorization either of the President or of Congress."

The French ambassador's notes, two of the 5th and one each of the 6th and 8th of June, disclose the fact that, although the Department's notes of the 4th and 5th of June

had been promptly forwarded to the company's agent, the work of landing the cable had been completed before their receipt.

In view of the situation outlined, and the fact that Congress has not acted upon the matter, you request an official expression of my views as to the power of the President, in the absence of legislative enactment, to control the landing of foreign telegraphic cables.

What the President can do and ought to do in the case of projected cables may possibly be ascertained from what he has done; at any rate, a recurrence to the history of the landing of certain existing cables may prove of service in considering the question you propound.

The first cable from a foreign country landed upon the shores of the United States was one connecting the island of Cuba with the State of Florida, and was landed in 1867, under supposed authority of the act of Congress of May 5, 1866 (14 Stat., 44), granting to the International Ocean Telegraph Company, a New York corporation, the sole privilege for fourteen years, of laying and operating telegraphic cables from the shores of Florida to Cuba, the Bahamas, and other West India islands, upon these conditions, namely, the United States to have the free use of the cable for military, naval, and diplomatic purposes; the company to keep all its lines open to the public for the daily publication of market and commercial reports and intelligence; all messages to be forwarded in the order received; no charge to exceed $3.50 for messages of ten words, and Congress to have the power to alter and determine the rates. (Forty-ninth Congress, second session, Senate Doc. 122, p. 63; letter of Mr. Frelinghuysen to the President, January 27, 1885).

In 1869 a concession was granted by the French Government to a company which proposed to lay a cable from the shores of France to the United States. One of the provisions of this concession gave to the company for a long period the exclusive right of telegraphic communication by submarine cable between France and the United States. President Grant resisted the landing of the cable unless this offensive monopoly feature should be abandoned. The French company accordingly renounced the exclusive privi