[§ 311. made that it becomes necessary to determine whether the discoverers may have exclusive possession of the islands for the purpose of taking off the guano and selling it; and the bond and securities provided for in the second section of the act are not required except with reference to the exclusive possession. In your case there has been no decision by the President recognizing the island of Sombrero as the property of the United States, and of course none authorizing exclusive possession in the discoverers or their assignees. Before these decisions can be properly made, the prerequisites already referred to must have been complied with. There must be sufficient proof of the discovery of a guano deposit by an American citizen; that it is not within the lawful jurisdiction of any other Government; that it is not occupied by the citizens of any other Government; that the discoverer has taken. and kept peaceable possession thereof in the name of the United States; that these facts have been communicated on oath to the Department of State, with a description of the island, its latitude and longitude, and that the deposit in question has not been taken out of the posses sion of any other Government or people. When the. President has been satisfied on these points, he may in his discretion, regard the isl ands containing the discovered deposits as belonging to the United States, but he is not obliged to do so. The object of the law is to benefit American agriculture by promoting the supply of guano at a reasonable price. Before assuming, therefore, the grave responsibility involved in declaring a guano island to belong to the United States, he must be satisfied that the guano found upon it is sufficient in quantity and quality to justify the measure. And it is only, moreover, when he shall be fully informed with respect to the value of the deposit that he can fix correctly the penalty of the bond required, and determine the securities contemplated by the law." Mr. Cass, Sec. of State, to Messrs. Wood and Grant, July 1, 1857; ibid. To enable an alleged discoverer of a guano deposit to make title, it is necessary, under the act of Congress of May 10, 1867, to prove (1) citizenship; (2) that the deposit had not been previously discovered by another; (3) that the island was at the time not in occupation or possession or jurisdiction of any other Government, A specific description of the position of the island must be given. Mr. Seward, Sec. of State, to Mr. Daggett, Sept. 4, 1867; ibid. See also Mr. Seward to Mr. Phillips, Mar. 2, 1863; Mr. Seward to Mr. Clark, July 1, 1868; ibid. The Department has no power to adjudicate in cases of "conflict by citizens of the United States in respect to their rights in a guano isiand," "and the claimants must vindicate their title before the legal tribunals of the country." Mr. Fish, of State, to Mrs. Stevens, June 21, 1869. MSS. Dom. Let. See Mr. J. C. B. Davis, Acting Sec. of State, to Mr. Gray, Aug. 21, 1869; ibid. S. Mis. 162—VOL. III -5 65 "The ground upon which, under section 5570 of the Revised Statutes, the right of citizens of the United States to the use and control of deposits of guano on islands, rocks, or keys is based, is the discovery, not of the island or other place named, but of the deposit of guano. But it must also be shown that the place of the deposit is not within the lawful jurisdiction of any other Government.' * "If it be shown that the place of the deposit is not subject to the jurisdiction of any other Government the determination of the conflicting claims of citizens of the United States belongs exclusively to this Government. But it may not be improper to observe that the point of most importance to be ascertained, as between citizens of the United States, is whether the pretensions of the person laying claim to the discovery of a deposit conflict with the rights of any other citizen. And it is conceived that a disallowed or abandoned claim would not be a bar to the subsequent acquirement of rights under the act of Congress by another claimant." Mr. Bayard, Sec. of State, to Mr. Romero, Feb. 26, 1886. MSS. Notes, Mex. By the act of 1856 (Rev. Stat., § 5570) it is essential that, before an island whereon guano is discovered shall be deemed as appertaining to the United States, that the island shall be taken possession of and actually occupied; conditions which are not complied with by a mere symbolical possession or occupancy. No claim, also under the act, can have an earlier inception than the actual discovery of guano deposit, possession taken, and actual occupation of the island, rock, or key whereon it is found. It is requisite, also, that in determining the proper party to give the bond required by the act, the political department of the Government should only look to the party complying with the conditions of the statute, without considering the legal or equitable rights of other parties to share in the profits of the speculation, which are to be left for the determination of the proper judicial tribunals. 9 Op., 364, Black, 1859. The President can, under the statute, take no action in respect to an application by the sureties in a bond given to the United States from under the guano-island act of 1856 (Rev. Stat., § 5574), to be released their obligation, in consequence of a breach of the bond by their principal. 11 Op., 30, Bates, 1863. Section 8 of the act of 1865 (13 Stat. L., 494) repeals that part of the act of 1856 (11 Stat. L., 119) which requires the trade in guano from guano islands to be carried on in coasting-vessels, and for two years from and after July 14, 1865, all persons who have complied with section 2 of the act of 1856 (Rev. Stat., §§ 5572, 5573) may export guano in any vessel which may lawfully export merchandise from the United States. 11 Op., 514, Speed, 1866. On the general topic see further Mr. Fish, Sec. of State, to Mr. Samson, Apr. MSS. Dom. Let. Mr. Fish, Sec. of State, to Mr. Preston, Dec. 12, 1870. 31, 1872. MSS. Notes, Hayti. Mr. Fish, Sec. of State, to Mr. Lander, May 20, 1874. MSS. Dom. Let. Mr. Evarts, Sec. of State, to Messrs. Beebe, Nov. 26, 1877; ibid. Mr. Evarts, Sec of State, to Mr. Fisher, July 7, 1880; ibid. Mr. Frelinghuysen, Sec. of State, to Mr. McCulloch, Dec. 5, 1884; ibid. The report of Mr. Clayton, Sec. of State, of June 29, 1850, in reference to guano, is contained in Senate Ex. Doc. 59, 31st Cong., 1st sess. See further report respecting the guano trade; Senate Ex. Doc. 25, 35th Cong., 2d sess. for correspondence as to seizure, by Peru, of American vessels engaged in the guano trade, Brit. and For. St. Pap. for 1859-60, vol. 50, 1126. For articles on guano, see 19 De Bow's Rev., 219; 1 Chamber's Jour., 135, 383; 36 Living Age, 199. As to guano legislation, see Calvo droit int. (3d ed.), vol. 3, 361. See As to good offices on guano contracts, see Mr. Marcy, Sec. of State, to Mr. Eames, June 20, 1855. MSS. Inst., Venez. As to claims against Peru on alleged contract with guano discoverers, see supra, § 157. (2) AVES ISLANDS. "The Aves Islands have been known, probably, more than three hundred years, but have ever been regarded as uninhabitable and valueless. No nation has deemed them of sufficient importance to be reduced to possession. As we understand the case, they were not embraced within the sovereignty of any power, but were derelict. While in this state, American citizens discovered that on one of them there was a deposit of guano of some value, and they took actual possession of it. Their right to retain it was, in our opinion, good against the whole world, and they could not be rightfully disturbed by any power. But it now seems that Venezuela has forcibly driven them away under some claim of sovereignty over the island. This act has resulted in a serious injury to them, and they have, as you will perceive by the correspondence, applied for the interposition of this Government to assert their claim against Venezuela for molesting them and breaking up their business. You are instructed to bring this case to the notice of the Venezuelan Government.” Mr. Marcy, Sec. of State, to Mr. Eames, Jan. 24, 1855. MSS. Inst., Venezuela. "The conflicting claims of the Venezuelan Government to the Aves Islands, discovered by American citizens in 1854, and occupied by them for the purpose of taking guano, but from which they were expelled by the authority of Venezuela, were, after being the subject of diplomatic discussion, settled by the payment by Venezuela to the United States "The ground upon which, under section 5570 of the Revised Statutes, the right of citizens of the United States to the use and control of deposits of guano on islands, rocks, or keys is based, is the discovery, not of the island or other place named, but of the deposit of guano. But it must also be shown that the place of the deposit is not within the lawful jurisdiction of any other Government.' "If it be shown that the place of the deposit is not subject to the jurisdiction of any other Government the determination of the conflicting claims of citizens of the United States belongs exclusively to this Government. But it may not be improper to observe that the point of most importance to be ascertained, as between citizens of the United States, is whether the pretensions of the person laying claim to the discovery of a deposit conflict with the rights of any other citizen. And it is conceived that a disallowed or abandoned claim would not be a bar to the subsequent acquirement of rights under the act of Congress by another claimant." Mr. Bayard, Sec. of State, to Mr. Romero, Feb. 26, 1886. MSS. Notes, Mex. By the act of 1856 (Rev. Stat., § 5570) it is essential that, before an island whereon guano is discovered shall be deemed as appertaining to the United States, that the island shall be taken possession of and actually occupied; conditions which are not complied with by a mere symbolical possession or occupancy. No claim, also under the act, can have an earlier inception than the actual discovery of guano deposit, possession taken, and actual occupation of the island, rock, or key whereon it is found. It is requisite, also, that in determining the proper party to give the bond required by the act, the political department of the Government should only look to the party complying with the conditions of the statute, without considering the legal or equitable rights of other parties to share in the profits of the speculation, which are to be left for the determination of the proper judicial tribunals. 9 Op., 364, Black, 1859. The President can, under the statute, take no action in respect to an application by the sureties in a bond given to the United States from under the guano-island act of 1856 (Rev. Stat., § 5574), to be released their obligation, in consequence of a breach of the bond by their principal. 11 Op., 30, Bates, 1863. Section 8 of the act of 1865 (13 Stat. L., 494) repeals that part of the act of 1856 (11 Stat. L., 119) which requires the trade in guano from guano islands to be carried on in coasting-vessels, and for two years from and after July 14, 1865, all persons who have complied with section 2 of the act of 1856 (Rev. Stat., §§ 5572, 5573) may export guano in any vessel which may lawfully export merchandise from the United States. 11 Op., 514, Speed, 1866. On the general topic see further Mr. Fish, Sec. of State, to Mr. Samson, Apr. As to guano legislation, see Calvo droit int. (3d ed.), vol. 3, 361. See As to good offices on guano contracts, see Mr. Marcy, Sec. of State, to Mr. Eames, As to claims against Peru on alleged contract with guano discoverers, see (2) AVES ISLANDS. "The Aves Islands have been known, probably, more than three hundred years, but have ever been regarded as uninhabitable and valueless. No nation has deemed them of sufficient importance to be reduced to possession. As we understand the case, they were not embraced within the sovereignty of any power, but were derelict. While in this state, American citizens discovered that on one of them there was a deposit of guano of some value, and they took actual possession of it. Their right to retain it was, in our opinion, good against the whole world, and they could not be rightfully disturbed by any power. But it now seems that Venezuela has forcibly driven them away under some claim of sovereignty over the island. This act has resulted in a serious injury to them, and they have, as you will perceive by the correspondence, applied for the interposition of this Government to assert their claim against Venezuela for molesting them and breaking up their business. You are instructed to bring this case to the notice of the Venezuelan Government." Mr. Marcy, Sec. of State, to Mr. Eames, Jan. 24, 1855. MSS. Inst., Venezuela. The conflicting claims of the Venezuelan Government to the Aves Islands, discovered by American citizens in 1854, and occupied by them for the purpose of taking guano, but from which they were expelled by the authority of Venezuela, were, after being the subject of diplomatic discussion, settled by the payment by Venezuela to the United States |