Mr. Evarts, Sec. of State, to Mr. Fisher, July 7, 1880, 133 MS. Dom. Let. 509. See, also, Mr. Hay, Sec. of State, to Mr. Lunt, May, 26, 1899, 237 MS. Dom. "When the President has been satisfied on these points, he may, in his discretion, regard the islands 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 in sufficient 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, 47 MS. Of the same purport is Mr. Cass, Sec. of State, to Messrs. Fabens and Stearns, The President can not annex a guano island to the United States while a diplomatic question is pending between this Government and that of a foreign nation, growing out of a claim of dominion by the latter over the island. Black, At.-Gen., 9 Op. 406 (1859). This opinion related to the island of Cay Verde. But if the President, in the exercise of his powers under the statute, treats a guano island as appertaining to the United States, this necessarily implies that he is satisfied that the island was not within the jurisdiction of any foreign government; and in such case it is not the province of the courts to determine whether the Executive was right or wrong, but they must act upon the fact as decided by him. Jones v. United States (1890), 137 U. S. 202, 221, 223. Discovery. The right of citizens of the United States to the use and control, under the Revised Statutes, of deposits of guano on islands, rocks, and keys, "is based on 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' (sec. 5570, Rev. Stats.); or, as it is again and more specifically expressed, that such place was not at the time of the 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. (Sec. 5571, Rev. Stats.) "If it be shown that the place of 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. 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, Mex. minister, Feb. 18, 1886, MS One can not "lay a claim" to an island under the belief that it contains guano, but before any actual discovery of guano deposit, possession, or occupation. Black, At.-Gen. (1859), 9 Op. 364. To the question whether the United States would "give protection to an American citizen who has discovered and taken possession of a guano island while he was in command of a British vessel," reply was made (1) that the act of 1856 required the person claiming the protection of the Government to show, among other things, that "possession was taken in the name of the United States;" (2) that "the discovery of an unoccupied island by the navigators of a ship, public or private, is generally understood to be for the benefit of the nation under whose flag the vessel sails, and under whose protection the crew, whatever may be their national origin, have for the time chosen to place themselves;" (3) that, "to recognize any other rule might introduce great uncertainty in the construction of an act which ought to admit of no doubt." It was added, as an illustration of this uncertainty, that the captain, in the case put, "might desire to take possession in behalf of the United States, while his crew, owing allegiance to Great Britain, might well refuse to support such a pretension and leave him powerless to give any effect to his claim." Mr. Seward, Sec. of State, to Messrs. Kittredge & Proctor, May 9, 1866, 73 No claim, under the act of Congress, can have any earlier inception than the actual discovery of guano deposit, possession Occupation. taken, and actual occupation of the island, rock, or key whereon it is found. Black, At.-Gen. (1859), 9 Op. 364. "An actual taking of possession and actual occupation of the island whereon guano has been discovered are express conditions of the act of Congress, which are not complied with by a mere symbolical posses sion or occupancy, as by the planting of a flag, the erection of a tablet, an inscription, or other like acts." Black, At.-Gen. (1859), 9 Op. 364, 367. See also Mr. Black, Sec. of State, tc The act of Congress makes it "a condition necessary to enable the discoverer to invoke the protection of this government, that he shall take peaceable possession thereof and occupy' the island, rock, or key. It is not for me to indicate the manner in which such occupation may be maintained against fresh discoverers, or in which they may be affected with notice of the prior claim. I could only suggest what ordinary prudence would recommend, that such measures should be taken as to leave no doubt that an actual occupation has been taken in good faith with the intention of making it continuous and permanent." Mr. Seward, Sec. of State, to Messrs. Kittredge & Proctor, May 9, 1866, 73 Executive action. "Before any island can be declared as appertaining to the United States for the purposes specified in the Guano Act of 1856, proof must be furnished to the Department not only of the fact of its discovery, but also of its actual, continuous and peaceable occupation, by a citizen of the United States, accompanied with a reliable estimate of the quantity of guano on the island and an analysis of its quality under the certificate of some competent chemist." Mr. Black, Sec. of State, to Mr. Marshall, Dec. 28, 1860, 53 MS. Dom. Let. 336. Upon the submission to the Department of State of sufficient proof of the fulfillment of the conditions prescribed by the statutes, the President may, in his discretion, regard the island or islands containing the discovered deposits as appertaining to the United States, but he is not obliged to do so. The President may likewise nominate the bond, but in order to fix the penalty correctly and determine the sureties contemplated by the law, it is absolutely necessary that he should be fully informed as to the value of the deposit. . In former years it was the custom of the Department to issue a proclamation (which was delivered to the discoverer) after it had satisfied itself, as the law requires, in the matter of the discoverer's proof and allegations, but this appears to have been discontinued for some time past." Mr. Gresham, Sec. of State, to Mr. Gordon, Oct. 19, 1893, 194 MS. Dom. The discontinuance of the practice of issuing a proclamation, or certificate, to show that the conditions of the statute had been complied H. Doc. 551-36 with, and that the President, in the exercise of his discretion, "considered" the island "as appertaining to the United States," may perhaps be accounted for by the circumstance that, between the years 1869 and 1879, no islands were added to the list, with the result that, when new applications were made, the previous practice in such matters, having become unfamiliar, was not observed. The fact of the departure from the earlier practice, and the subsequent recognition of its adaptation to the requirements of the law, may be seen in the two following quotations: "This Government does not grant protective rights to alleged discoverers of guano islands. It simply makes this Department the depository of such papers as discoverers may choose to place upon its files. The only action this Government can be expected to take, in the event of any of its citizens becoming embroiled in a controversy with citizens or subjects of a foreign Government with regard to ownership of guano deposits, is to use its diplomatic interference to redress the wrongs inflicted upon its citizens should they not in any manner have transgressed the laws of a foreign nationality." Mr. Hunter, Acting Sec. of State, to Mr. Russell, July 3, 1880, 133 MS. Dom. "From your letter of October 12th in reply to mine of the 3rd of the same month, both relating to certain islands included in a list, issued by your Department, of Guano Islands appertaining to the United States, bonded under the Act of August 18th, 1856, it appears that the list was based upon bonds conditioned for lawful shipment and sale of guano from those islands, approved by this Department in the years 1880, 1881 and 1884, and filed in the office of the First Comptroller of the Treasury. "A careful search of the files of this Department has been made for the purpose of ascertaining whether or not the President, in pursuance of the discretion vested in him by Section 5570 of the Revised Statutes, ever declared that these islands should be considered as appertaining to the United States. No evidence can be found of such a declaration. Neither can there be found in this Department any explanation of the approval of such bonds. Their approval cannot, I think, be considered as an exercise of the President's discretion to consider the islands to which they relate as appertaining to the United States, although your Department was naturally led by the circumstance of finding the bonds on file, to include the islands in the list mentioned. "The Mexican Government insists that the islands are within its territory and lawful jurisdiction, and that under the terms of Section 5570, they never could have been considered as appertaining to the United States.' However this may be, it seems safe to say that they never have been so considered within the meaning of that section. "I may also add that the Department some time since addressed letters to persons who are shown by papers filed here to claim an interest in these islands, and so far as heard from, they are unable to produce any evidence showing that as to such islands the President has ever exercised the discretion vested in him by the guano islands Act.' "I have therefore to request that the islands "viz: Arenas, Perez, Chica, Pajoras, and the Western Triangles, as well as Arenas Key, may be stricken from the list of guano islands appertaining to the United States." Mr. Gresham, Sec. of State, to the Secretary of the Treasury, Nov. 17, 1894, 199 MS. Dom. Let. 437. Of the islands above mentioned, Arenas Key was added to the list in 1879; Arenas and the Western Triangles, in 1880; and Perez, Chica, and Pajoras, in 1884. The certificate, commonly called a proclamation, originally issued by the Department of State to the alleged discoverer of a guano deposit, set forth the facts in regard to the discovery, occupation, and bonding, under the act of 1856, and then declared that the discoverer, or his assignee, as the case might be, was "entitled, in respect to the guano on the said island, to all the privileges and advantages intended by that act to be secured to citizens of the United States who may have discovered deposits of guano,-provided, always, that the said [name of discoverer, or assignee] shall abide by the conditions and requirements imposed by the act of Congress aforesaid." It was then attested by the Secretary of State under the seal of the Department. 53 MS. Dom. Let. 3; id. 447. See, also, Jones v. United States (1890), 137 U. S. 202. The effect of this certificate was to confer on the discoverer and his assigns the rights given by the statute to those who fulfilled its conditions. Mr. Evarts, Sec. of State, to Mr. Russell, April 5, 1878, 122 MS. Dom. Let. 384, referring to a certificate issued by the Department of State, in December, 1868. "It is not competent for this Department to guarantee the title of the alleged discoverer." (Mr. Day, Assist. Sec. of State, to Mr. Chambers, Sept. 27, 1897, 221 MS. Dom. Let. 203.) "The power, conferred on the President of the United States by section 1 of the act of Congress of 1856, to determine that a guano island shall be considered as appertaining to the United States, being a strictly executive power, affecting foreign relations, and the manner in which his determination shall be made known not having been prescribed by statute, there can be no doubt that it may be declared through the Department of State, whose acts in this regard are in legal contemplation the acts of the President. Wolsey v. Chapman, |