"To the clause about Hudson's Bay we did not object, as, on examining the charter to that company, which we did, it was clear that we should still fish as before the Revolution." Mr. Rush's notes of negotiation, Monroe papers, Dept. of State, conference of (7) PORTS OF ENTRY NOT AFFECTED BY LIMITATIONS IMPOSED BY TREATY OF 1818. § 306. Whatever may be the limitations of the treaty of 1818 as to trading by fishermen in the British possessions bordering on the fisheries, they do not apply to ports of entry in which fishing vessels, if having proper papers, can enter for commercial purposes. On the other hand, no British municipal regulations as to ports of entry can affect, so far as concerns the United States, the right of fishermen, under treaties and under the law of nations, to visit ports, bays, and harbors of that coast to obtain shelter, wood, and water, and to obtain provisions and sup plies in the exercise of the territorial privileges they thus possess. (8) BRITISH MUNICIPAL LEGISLATION MAY RESTRICT, BUT CANNOT EXPAND, BRITISH RIGHTS UNDER THESE TREATIES. § 307. It is conceded that there is no British legislation making it penal for United States fishermen to purchase bait or supplies on Canadian shores when visiting them in pursuance of their rights as confirmed by this treaty. This, as has been said (supra, § 304), is a cotemporaneous construction of the treaty, since the statutes go back to the period when the treaty was framed. But in the aspect of the present section the statutes may be regarded as a statutory statement of treaty rights in this connection, whatever these rights might be. The British Government, with whom exclusively the United States has to deal in this matter, prescribes by statute that the seizures under the treaty of 1818 are to be only for certain specified causes, among which buying provisions is not included. And the rule is well settled, that while a municipal law cannot expand an international right, it may so contract it for municipal purposes that municipal prosecutions under it can only be brought in submission to the statutory terms. "If, however, it be said that this claim (to exclude United States fishermen from these rights) is founded on provincial or colonial statutes, and not upon the convention, this Government cannot but regard them as unfriendly, and in contravention of the spirit, if not of the letter, of the treaty, for the faithful execution of which the imperial Government is alone responsible. "Anticipating that an attempt may possibly be made by the Canadian authorities in the coming season to repeat their unneighborly acts toward our fishermen, I recommend you to confer upon the Executive the power to suspend, by proclamation, the operation of the laws authorizing the transit of goods, wares, and merchandise in bond across the territory of the United States to Canada; and, further, should such au extreme measure become necessary, to suspend the operation of any laws whereby the vessels of the Dominion of Canada are permitted to enter the waters of the United States." President Grant, Second Annual Message, 1870. Infra, § 319. (9) GREAT BRITAIN AND NOT HER PROVINCES IS THE SOVEREIGN TO BE DEALT WITH FOR INFRACTIONS OF LAW OF NATIONS AND OF TREATIES IN THIS RELATION. § 308. It has been already seen (supra, §§ 8, 9) that the treaty-making power of a Government is the power which is to answer to the other contracting power for infractions of the treaty. It has also been seen that the organ of a Government which is charged with its foreign relations is that which is to be addressed by foreign Governments in respect to foreign relations, and that in federal systems this prerogative is assigned to the federal executive acting through his secretary for foreign affairs (supra, § 78, ff). To appeals of this class, based either upon treaty or the law of nations, no municipal statute, federal, state, or provincial, can be set up as a defense; and this has been repeatedly admitted in the United States in respect to international duties and to treaties executed by President and Senate within the range of their constitutional power (supra, §§ 9, 21, 138). This principle is conceded by Great Britain in respect to Canadian statutes and Canadian adjudications in this very relation. See 2 Halifax Com., 1544. "This Government conceives that the fishery rights of the United States, conceded by the treaty of Washington, are to be exercised wholly free from the restraints and regulations of the statutes of Newfoundland." Mr. Evarts, Sec. of State, to Mr. Welsh, Feb. 17, 1879. MSS. Inst., Gr. Brit. As to further assertions of this responsibility of Great Britain for pro vincial invasions of United States fishing rights, see Mr. Evarts to Sir E. Thornton, March 2, 1878. This responsibility was conspicuously claimed and accepted in connection with the injuries received by United States fishermen in Fortune Bay in January, 1878. See papers contained in part in the message of President Hayes, May 17, 1880. House Ex. Doc. 84, 46th Cong., 2d sess. "With Great Britain there are still unsettled questions, growing out of the local laws of the maritime provinces and the action of provincial authorities deemed to be in derogation of rights secured by treaty to American fishermen. The United States minister in London has been instructed to present a demand for $105,305.02 in view of the damages received by American citizens at Fortune Bay, on the 6th day of January, 1878. The subject has been taken into consideration by the British Government, and an early reply is anticipated." President Hayes, Third Annual Message, 1879. See Fourth Annual Message of same, 1880- See House Ex. Doc. 84, 46th Cong., 2d sess. "Early in the year the Fortune Bay claims were satisfactorily settled by the British Government paying in full the sum of £15,000, most of which has been already distributed. As the terms of the settlement included compensation for injuries suffered by our fishermen at Aspee Bay, there has been retained from the gross award a sum which is deemed adequate for those claims." President Arthur, First Annual Message, 1881. The settlement is detailed in instructions from Mr. Blaine, Sec. of State, to As to Halifax Fishery Commission see further, Appointmen of third commis- For Mr. Evarts' criticism of action of Halifax award, see Mr. Evarts, Sec. of III. BY PURCHASE OF ALASKA THE UNITED STATES IS ENTITLED TO THE JOINT RIGHTS OF RUSSIA AND OF THE UNITED STATES IN THE NORTHWESTERN PACIFIC. § 309. The conditions of the purchase of Alaska, and the nature of the controversy between the United States, Great Britain, and Russia, in reference to the Northwestern Pacific, as settled by the convention of 1824 between Russia and the United States, are considered in prior sections. Supra, §§ 27, 33, 159. See also Mr. Forsyth, Sec. of State, to Mr. Dallas, May 4, 1834. MSS. Inst., As to construction of convention, see same to same, Nov. 3, 1837. It is sufficient here to state that the joint rights of Russia and of the United States to those waters are now held by the United States. As to fisheries in Alaska, see Senate Ex. Doc. 50, 40th Cong., 2d sess. Mr. Cutts' report on the commerce in the products of the sea, and other papers connected with fishing grounds on the North Pacific, are given in Senate Ex. Doc. 34, 42d Cong., 2d sess. As to correspondence as to admission of British Columbian fish under treaty of 1871, see Brit. and For. St. Pap. 1874-75, vol. 66. 62 CHAPTER XIV. GUANO ISLANDS. I. TITLE IN INTERNATIONAL LAW. Based on discovery, § 310. II. TITLE UNDER UNITED STATES STATUTE. (1) Discovery of guano deposits gives title, § 311. (3) Lobos Islands, § 313. (4) Other islands, § 314. I. TITLE IN INTERNATIONAL LAW. BASED ON DISCOVERY. § 310. As has been already stated, title to territory, whether insular or continental, in America, is based on discovery or conquest, and not on transfer from the aborigines. Supra, §§ 2, 3, 200. II. TITLE UNDER UNITED STATES STATUTE. (1) DISCOVERY OF GUANO DEPOSITS GIVES TITLE. § 311. The Revised Statutes of the United States provide as follows: SEC. 5570. Whenever any citizen of the United States discovers a deposit of guano on any island, rock, or key, not within the lawful jurisdiction of any other Government, and not occupied by the citizens of any other Government, and takes peaceable possession thereof, and occupies the same, such island, rock, or key may, at the discretion of the President, be considered as appertaining to the United States. SEC. 5571. The discoverer shall, as soon as practicable, give notice, verified by affidavit, to the Department of State of such discovery, occupation, and possession, describing the island, rock, or key, and the latitude and longitude thereof, as near as may be, and showing that such possession was taken in the name of the United States; and shall furnish satisfactory evidence to the State Department that such island, rock, or key was not, at the time of discovery thereof, or of the taking possession and occupation thereof by the claimants, in the possession or occupation of any other Government or of the citizens of any other Government, before the same shall be considered as appertaining to the United States. SEC. 5572. If the discoverer dies before perfecting proof of discovery or fully complying with the provisions of the preceding section, his widow, heir, executor, or administrator, shall be entitled to the benefits of such discovery upon complying with the provisions of this title; but nothing herein shall be held to impair any rights of discovery or any assignment by a discoverer heretofore recognized by the United States. SEC. 5573. The discoverer, or his assigns, being citizens of the United States, may be allowed, at the pleasure of Congress, the exclusive right of occupying such island, rocks, or keys, for the purpose of obtaining guano, and of selling and delivering the same to citizens of the United States, to be used therein, and may be allowed to charge and receive for every ton thereof delivered alongside a vessel, in proper tubs, within reach of ship's tackle, a sum not exceeding $8 per ton for the best quality, or $4 for every ton taken while in its native place of deposit. SEC. 5574. No guano shall be taken from any such island, rock, or key, except for the use of the citizens of the United States or of persons resident therein. The discoverer, or his widow, heir, executor, administrator, or assigns, shall enter into bond, in such penalty and with such sureties as may be required by the President, to deliver the guano to citizens of the United States, for the purpose of being used therein, and to none others, and at the price prescribed, and to provide all necessary facilities for that purpose within a time to be fixed in the bond; and any breach of the provisions thereof shall be deemed a forfeiture of all rights accruing under and by virtue of this title. This section shall, however, be suspended in relation to all persons who have complied with the provisions of this title, for five years from and after the fourteenth day of July, eighteen hundred and seventy-two. SEC. 5575. The introduction of guano from such islands, rocks, or keys, shall be regulated as in the coasting trade between different parts of the United States, and the same laws shall govern the vessels concerned therein. SEC. 5576. All acts done, and offenses or crimes committed, on any such island, rock, or key, by persons who may land thereon, or in the waters adjacent thereto, shall be deemed committed on the high seas, on board a merchant ship or vessel belonging to the United States, and shall be punished according to the laws of the United States relating to such ships or vessels and offenses on the high seas, which laws for the purpose aforesaid are extended over such islands, rocks, and keys. SEC. 5577. The President is authorized, at his discretion, to employ the land and naval forces of the United States to protect the rights of the discoverer or of his widow, heir, executor, administrator, or assigns. SEC. 5578. Nothing in this title contained shall be construed as obliging the United States to retain possession of the islands, rocks, or keys, after the guano shall have been removed from the same. 6 "The act of Congress of August 18, 1856 (P. L., 110) confers a discretionary power on the President of the United States to decide whether an island which has not been appropriated by any other nation, and on which guano has been discovered, shall be considered as appertaining to the United States,' and whether he shall employ the land and naval forces of the United States to protect the rights' of the discoverers of such an island. This is manifestly a grave and important duty, to be performed by the President only after all the prerequisites of the law shall have been complied with." Mr. Cass, Sec. of State, to Messrs. Fabens and Stearns, June 20, 1857. MSS. "The act of Congress of August 18, 1856, authorizes the President, after certain prerequisites have been performed, to determine that islands upon which guano deposits have been discovered, appertain to the United States. It is only after this preliminary decision has been |