The Guano Islands Act of August 18, 1856, c. 164, reenacted in
Rev.Stat. §§ 5570-5578, is constitutional and valid.
Section 6 of the Act of August 18, 185G, c. 164, reenacted in
Rev.Stat. § 5576, does not assume to extend the admiralty
jurisdiction over land, but merely extends the provisions of the
statutes of the United States for the punishment of offenses upon
the high seas to like offenses upon guano islands which the
President has determined should be considered as appertaining to
the United States.
Under Rev.Stat. §§ 730, 5339, 5576, murder committed on a guano
island which has been determined by the President to appertain to
the United States, may be tried in the courts of the United States
for the district into which the offender is first brought.
By the law of nations, when citizens or subjects of one nation,
in its name and by its authority or with its assent, take and hold
actual, continuous and useful possession (although only for the
purpose of carrying on a particular business, such as catching and
curing fish, or working mines) of territory unoccupied by any other
government or its citizens, the nation to which they belong may
exercise such jurisdiction and for such period as it sees fit over
territory so acquired.
Who is the sovereign,
de jure or
de facto, of
a territory is not a judicial, but a political question, the
determination of which by the legislative and executive departments
of any government conclusively binds the judges, as well as all
other officers, citizens, and subjects of that government.
Courts of justice are bound to take judicial notice of the
territorial extent of the jurisdiction exercised by the government
whose laws they administer, or of its recognition or denial of the
sovereignty of a foreign power, as appearing from the public acts
of the legislature and executive, although those acts are not
formally put in evidence, nor in accord with the pleadings.
In the ascertainment of facts of which judges are bound to take
judicial
Page 137 U. S. 203
notice, as in the decision of matters of law which it is their
office to know, they may refresh their memory and inform their
conscience from such sources as they deem most trustworthy, and as
to international affairs may inquire of the Department of
State.
The determination of the President, under the Act of August 18,
1856, c.164, § 1 (Rev.Stat. § 6570), that a guano island shall be
considered as appertaining to the United States may be declared
through the Department of State, whose acts in this regard are in
legal contemplation the acts of the President.
The Island of Navassa in the Caribbean Sea must, by reason of
the action of the President, as appearing in documents of the
Department of State, be considered as appertaining to the United
States.
Under the Act of August 18, 1856, c. 164, § 2 (Rev.Stat. §
6574), a breach of condition of the bond given by the discoverer of
a guano island forfeits his private rights only, and does not
affect the dominion of the United States over the island, or the
jurisdiction of their courts.
This cause was argued with No. 1142,
Smith v. United
States, and No. 1144,
Key v. United States, post,
137 U. S. 224. On
the application of the counsel for the several plaintiffs in error,
it was ordered that three counsel for plaintiffs in error be
allowed to make oral argument herein. The case is stated in the
opinion.
MR. JUSTICE GRAY delivered the opinion of the Court.
This was an indictment, found in the District Court of the
United States for the District of Maryland and remitted to the
circuit court under Rev.Stat. § 1039, alleging that Henry Jones,
late of that district, on September 14, 1889,
"at Navassa Island, a place which then and there was under the
sole and exclusive jurisdiction of the United States and out of the
jurisdiction of any particular state or district of the United
States, the same being at the time of the committing of the
Page 137 U. S. 204
offenses in the manner and form as hereinafter stated by the
persons hereinafter named an island situated in the Caribbean Sea,
and named 'Navassa Island,' and which was then and there recognized
and considered by the United States as containing a deposit of
guano, within the meaning and terms of the laws of the United
States relating to such islands, and which was then and there
recognized and considered by the United States as appertaining to
the United States, and which was also then and there in the
possession of the United States, under the laws of the United
States then and there in force relating to such islands,"
murdered one Thomas N. Foster, by giving him three mortal blows
with an axe, of which he there died on the same day, and that other
persons named aided and abetter in the murder. The indictment,
after charging the murder in usual form, alleged that the District
of Maryland was the district of the United States into which the
defendant was afterwards first brought from the Island of
Navassa.
The defendant filed a general demurrer, which was overruled, and
he then pleaded not guilty. The jury returned a verdict of guilty,
and a bill of exceptions was tendered by the defendant, and allowed
by the court, in substance, as follows:
At the trial, the United States, to prove that Navassa Island
was recognized and considered by the United States as appertaining
to the United States, and in the possession of the United States
under the provisions of the laws of the United States in force with
regard to such islands, offered in evidence certified copies of
papers, from the records of the State Department of the United
States, as follows:
A copy of a memorial addressed to the Secretary of State by
Peter Duncan, signed and sworn to by him on November 18, 1857,
before a commissioner of the Circuit Court of the United States for
the District of Maryland, and certified by the present Secretary of
State to be
"a true copy from Senate executive document No. 37, 36th
Congress, 1st session, filed in this department with papers
relating to the discovery of guano on the Island of Navassa,"
which was in these words:
Page 137 U. S. 205
"To the honorable the Secretary of State of the United
States:"
"Peter Duncan, a citizen of the United States, respectfully
represents to the department of State of the United States that on
the first day of July in the year 1857, he did discover a deposit
of guano on an island or key in the Caribbean Sea not within the
lawful jurisdiction of any other government and not occupied by the
citizens of any other government, which said island or key is
called 'Navassa,' and lies in latitude 18� 18' north, longitude 75�
west, forty-five miles, or thereabouts, from the island of St.
Domingo, and seventy miles, or thereabouts, from the island of
Jamaica. The said Island of Navassa is about two miles in length,
and a mile and a half in width, apparently of volcanic origin, and
elevated about three hundred feet above the surface of the sea,
presenting a rocky perpendicular cliff or shore on all sides except
for a small space to the north. It is covered with small shrubs
upon the surface beneath which is a deposit of phosphatic guano,
varying in depth from one to six feet, and estimated in quantity at
one million of tons. And said claimant further represents that on
the 19th day of September, 1857, he did take peaceable possession
of and occupy said Island or Key of Navassa in the name of the
United States, and continues so to occupy the same, and is prepared
to furnish satisfactory evidence thereof, and of all others the
requisites and facts prescribed by the act of Congress in such case
made and provided. Wherefore he prays that said Key or Island of
Navassa may be considered and declared as appertaining to the
United States, and that he the said claimant, may have the rights
and advantages allowed and secured to him as such discoverer, which
are by the act of Congress aforesaid provided."
"PETER DUNCAN"
Also a copy of a proclamation, certified by the present
Secretary of State to be
"a copy of a proclamation issued by this department on the 8th
day of December, 1859, in respect
Page 137 U. S. 206
to the discovery of guano on the Island of Navassa by Peter
Duncan,"
which was in these words:
"Lewis Cass, Secretary of State of the United States, to all to
whom these presents shall come, greeting:"
"Know ye that Peter Duncan, a citizen of the United States, has
filed in this department the required notice of the discovery of
guano on and of the occupation of the Island of Navassa, in the
Caribbean Sea, in the name of the United States of America, the
same being in north latitude eighteen degrees and ten minutes, and
in longitude seventy-five degrees west, and that Edward K. Cooper,
also a citizen of the United States, and the assignee of the said
Peter Duncan, has entered into sufficient bonds under and according
to the provisions of the Act of the Congress of the United States
passed on the eighteenth day of August, in the year eighteen
hundred and fifty-six; wherefore the said Edward K. Cooper is
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 Edward K. Cooper shall abide
by the conditions and requirements imposed by the act of Congress
aforesaid. In witness whereof I, Lewis Cass, Secretary of State of
the United States of America, have hereunto set my hand and caused
the seal of the Department of State to be affixed at Washington
this eighth day of December, 1859."
"LEWIS CASS [Seal]"
The United States further proved that on September 14, 1889, the
Island of Navassa was in the possession of the Navassa Phosphate
Company, incorporated by the State of New York, and which held the
island as assignees of Duncan and Cooper, mentioned in the
foregoing papers; that the persons then
"on the island consisted of 137 colored laborers of said company
and 11 white officers, or superintendents, all residents of the
United States, appointed by the company, the laborers, including
the defendant, being employed in
Page 137 U. S. 207
digging the phosphate or guano and transporting by railroad
propelled by manpower, and handling the phosphate or guano found on
the island and putting it on shipboard, which digging and mining is
carried on by digging and blasting with dynamite and working with
picks and other iron tools, and which phosphate or guano so mined
is the article called 'Navassa Phosphate' in the market, and is the
only substance on the island which is dug, mined, worked,
transported, or sold, the said laborers being shipped at Baltimore
under shipping articles,"
a copy of which is in the margin; [
Footnote 1] that on that day
Page 137 U. S. 208
a riot took place there, in which a large number of laborers
were engaged against the officers, and the defendant killed Thomas
N. Foster, one of the officers, under circumstances which the jury
found amounted to murder, as charged in the indictment, and that
afterwards the defendant was first brought into the District of
Maryland, as therein charged.
Evidence offered by the defendant that on April 16, 1889,
Page 137 U. S. 209
a foreign vessel was loading at Navassa with a cargo of this
phosphate of lime, intended for the use of persons other than
citizens or residents of the United States, and finished such
loading a few days afterwards, was excluded by the court as
immaterial, and the defendant excepted to its exclusion. After
verdict, the defendant moved in arrest of judgment for various
reasons, the only one of which relied on in argument was this:
"Because the Act of August 18, 1856, c. 164, now codified with
amendments as title 72 of the Revised Statutes of the United
States, is unconstitutional and void, and the court was without
jurisdiction to try the defendant under the indictment found
against him."
The motion was overruled, and the defendant sentenced to death,
and he sued out this writ of error under the Act of February 6,
1889, c. 113, § 6, 25 Stat. 656.
The provisions of the Act of Congress of August 18, 1856, c.
164, entitled "An act to authorize protection to be given to
citizens of the United States who may discover deposits of guano,"
11 Stat. 119, since reenacted in Title 72, §§ 5570-5578, of the
Revised Statutes, are as follows:
By section 1, when any citizen of the United States shall
"discover 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 shall take
peaceable possession thereof, and occupy the same, said island,
rock, or key may at the discretion of the President of the United
States, be considered as appertaining to the United States,"
provided that the discoverer, as soon as practicable, shall give
notice, on oath, to the State Department of the United States of
such discovery, occupation, and possession, describing the island,
its latitude and longitude, and showing that such possession was
taken in the name of the United States, and shall furnish to the
State Department satisfactory evidence that the island was not at
the time of his discovery, possession, or occupation, in the
possession or occupation of any other government or its citizens.
All the facts and conditions thus specified must appear to the
satisfaction of the President in order to enable him to exercise
the discretionary
Page 137 U. S. 210
power conferred upon him of determining that the island shall be
considered as appertaining to the United States. When the President
determines that the island shall be considered as appertaining to
the United States, and not before, § 2 of the statute authorizes
him to allow the discoverer, or his assigns, the exclusive right,
subject to be terminated by Congress at any time, of occupying the
island for the purpose of obtaining and selling the guano, first
giving bond, with such penalties and securities as may be required
by the President,
"to deliver the said guano to citizens of the United States for
the purpose of being used therein, and to none others, . . . and to
provide all necessary facilities for that purpose within a time to
be fixed in said bond."
And by the same section, any breach of the conditions of the
bond "shall be taken and deemed a forfeiture of all rights accruing
under and by virtue of this act."
The scope and effect of the first two sections, as above stated,
clearly appear on the face of the act, and were pointed out in
opinions given by Attorney General Black to the Secretary of State
on June 2, 1857, and July 12, 1859, 9 Opinions of Attorneys General
30, 364.
See also a letter of the Secretary of State of
July 1, 1857, in 3 Wharton's International Law Digest § 311.
The other sections of the act manifestly apply only to islands
which the President has determined shall be considered as
appertaining to the United States.
By section 3,
"the introduction of guano from such islands, rocks, or keys
shall be regulated as in the coasting trade between different ports
of the United States, and the same laws shall govern the vessels
concerned therein."
By section 4,
"Nothing in this act contained shall be construed obligatory on
the United States to retain possession of the islands, rocks, or
keys, as aforesaid, after the guano shall have been removed from
the same."
And by section 5,
"The President of the United States is hereby authorized at his
discretion, to employ the land and naval forces of the United
States to protect the rights of the said discoverer, or
discoverers, or their assigns, as aforesaid. "
Page 137 U. S. 211
By section 6 of the same act, reenacted in section 5576 of the
Revised Statutes, 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 held and deemed to have been done or committed on the
high seas, on board a merchant ship or vessel belonging to the
United States, and be punished according to the laws of the United
States relating to such ship or vessels and offenses on the high
seas, which laws, for the purposes aforesaid, are hereby extended
to and over such islands, rocks, or keys."
This section does not (as argued for the defendant) assume to
extend the admiralty jurisdiction over land, but, in the exercise
of the power of the United States to preserve peace and punish
crime in all regions over which they exercise jurisdiction, it
unequivocally extends the provisions of the statutes of the United
States for the punishment of offenses committed upon the high seas
to like offenses committed upon guano islands which have been
determined by the President to appertain to the United States. In
either case, the crime, the punishment, and the procedure are
statutory, the whole criminal jurisdiction of the courts of the
United States being derived from acts of Congress.
United
States v. Hudson, 7 Cranch 32;
United States v.
Britton, 108 U. S. 199,
108 U. S.
206.
By the Constitution of the United States, while a crime
committed within any state must be tried in that state and in a
district previously ascertained by law, yet a crime not committed
within any state of the union may be tried at such place as
Congress may by law have directed. Constitution, Article III,
Section 2; Amendments, Art. 6;
United States v.
Dawson, 15 How. 467,
56 U. S. 488.
Congress has directed that
"The trial of all offenses committed upon the high seas or
elsewhere out of the jurisdiction of any particular state or
district shall be in the district where the offender is found or
into which he is first brought."
Rev.Stat. § 730. And Congress has awarded the punishment of
death to the crime of murder, whether committed upon the high seas
or other tidewaters out of the jurisdiction of any particular state
or
"within any fort, arsenal, dockyard, magazine, or in any other
place or district of
Page 137 U. S. 212
country under the exclusive jurisdiction of the United
States."
Rev.Stat. § 5339. Both these acts of Congress clearly include
murder committed on any land within the exclusive jurisdiction of
the United States and not within any judicial district, as well as
murder committed on the high seas.
Ex Parte
Bollman, 4 Cranch 75,
8 U. S. 136;
United States v.
Bevans, 3 Wheat. 336,
16 U. S.
390-391;
United States v.
Arwo, 19 Wall. 486.
By the law of nations, recognized by all civilized states,
dominion of new territory may be acquired by discovery and
occupation as well as by cession or conquest, and when citizens or
subjects of one nation, in its name and by its authority or with
its assent, take and hold actual, continuous, and useful possession
(although only for the purpose of carrying on a particular
business, such as catching and curing fish, or working mines) of
territory unoccupied by any other government or its citizens, the
nation to which they belong may exercise such jurisdiction and for
such period as it sees fit over territory so acquired. This
principle affords ample warrant for the legislation of Congress
concerning guano islands. Vattel, lib. 1, c. 18; Wheaton on
International Law (8th ed.) §§ 161, 165, 176, note 104; Halleck on
International Law, c. 6, §§ 7, 15; 1 Phillimore on International
Law (3d ed.) §§ 227, 229, 230, 232, 242; 1 Calvo Droit
International (4th ed.) §§ 266, 277, 300;
Whiton v. Albany Ins.
Co., 109 Mass. 24, 31.
Who is the sovereign,
de jure or
de facto, of
a territory is not a judicial, but a political, question, the
determination of which by the legislative and executive departments
of any government conclusively binds the judges, as well as all
other officers, citizens, and subjects of that government. This
principle has always been upheld by this Court, and has been
affirmed under a great variety of circumstances.
Gelston v.
Hoyt, 3 Wheat. 246,
16 U. S. 324;
United States v.
Palmer, 3 Wheat. 610;
The Divina
Pastora, 4 Wheat. 52;
Foster v.
Neilson, 2 Pet. 253,
27 U. S.
307-309;
Keene v.
McDonough, 8 Pet. 308;
Garcia v.
Lee, 12 Pet. 511,
37 U. S. 520;
Williams v. Suffolk Ins.
Co., 13 Pet. 415;
United
States v. Yorba, 1 Wall. 412,
68 U. S. 423;
United States v.
Lynde, 11 Wall. 632,
78 U. S. 638.
It is equally well settled in England.
The Pelican,
Edw.Adm.Appx. D;
Taylor v. Barclay,
Page 137 U. S. 213
2 Sim. 213;
Emperor of Austria v. Day, 3 De Gex, F.
&. J. 217, 221, 233;
Republic of Peru v. Peruvian Guano
Co., 36 Ch.D. 489, 497;
Republic of Peru v. Dreyfus,
38 Ch.D. 348, 356, 359.
In
Williams v. Suffolk Ins. Co., in an action on a
policy of insurance, the following question arose in the circuit
court, and was brought up by a certificate of division of opinion
between the judges thereof:
"Whether, inasmuch as the American government has insisted, and
does still insist, through its regular executive authority, that
the Falkland Islands do not constitute any part of the dominions
within the sovereignty of the government of Buenos Ayres, and that
the seal fishery at those islands is a trade free and lawful to the
citizens of the United States, and beyond the competency of the
Buenos Ayrean government to regulate, prohibit, or punish, it is
competent for the circuit court in this cause to inquire into and
ascertain by other evidence the title of said government of Buenos
Ayres to the sovereignty of the said Falkland islands, and, if such
evidence satisfies the court, to decide against the doctrines and
claims set up and supported by the American government on this
subject; or whether the action of the American government on this
subject is binding and conclusive on this Court as to whom the
sovereignty of those islands belongs."
13 Pet.
38 U. S.
417.
This Court held that the action of the Executive Department on
the question to whom the sovereignty of those islands belonged was
binding and conclusive upon the courts of the United States,
saying:
"Can there be any doubt that when the executive branch of the
government, which is charged with our foreign relations, shall in
its correspondence with a foreign nation assume a fact in regard to
the sovereignty of any island or country, it is conclusive on the
judicial department? And in this view, it is not material to
inquire, nor is it the province of the court to determine, whether
the executive be right or wrong. It is enough to know that in the
exercise of his constitutional functions, he has decided the
question. Having done this under the responsibilities which belong
to him, it is obligatory on the people and government of the
Page 137 U. S. 214
union. . . . In the present case, as the executive in his
message, and in his correspondence with the government of Buenos
Ayres, had denied the jurisdiction which it has assumed to exercise
over the Falkland islands, the fact must be taken and acted on by
this Court as thus asserted and maintained."
Id., 38 U. S.
420.
All courts of justice are bound to take judicial notice of the
territorial extent of the jurisdiction exercised by the government
whose laws they administer, or of its recognition or denial of the
sovereignty of a foreign power, as appearing from the public acts
of the legislature and executive, although those acts are not
formally put in evidence, nor in accord with the pleadings.
United States v.
Reynes, 9 How. 127;
Kennett v.
Chambers, 14 How. 38;
Hoyt v. Russell,
117 U. S. 401,
117 U. S. 404;
Coffee v. Groover, 123 U. S. 1;
State v. Dunwell, 3 R.I. 127;
State v. Wagner, 61
Me. 178;
Taylor v. Barclay, and
Emperor of Austria v.
Day, above cited; 1 Greenl. Ev. § 6.
In
United States v. Reynes, upon the question whether a
Spanish grant of land in Louisiana was protected either by the
treaty of retrocession from Spain to France or by the Treaty of
Paris, by which the Territory of Louisiana was ceded to the United
States, this Court held:
"The treaties above mentioned, the public acts, and
proclamations of the Spanish and French governments, and those of
their publicly recognized agents, in carrying into effect those
treaties, though not made exhibits in this cause, are historical
and notorious facts, of which the Court can take regular judicial
notice, and reference to which is implied in the investigation
before us."
9 How.
50 U. S.
147-148.
In
Kennett v. Chambers, a bill to compel specific
performance of a contract made in the United States in September,
1836, by which a general in the Texan army agreed to convey lands
in Texas in consideration of money paid him to aid in raising and
equipping troops against Mexico was dismissed on demurrer because
the independence of Texas, though previously declared by that
state, had not then been acknowledged by the government of the
United States, and the court established this conclusion by
referring to messages of the
Page 137 U. S. 215
President of the United States to the Senate, a letter from the
President to the Governor of Tennessee, and a note from the
Secretary of State to the Mexican minister, none of which were
stated in the record before the Court. 14 How.
55 U. S.
47-48.
So in
Coffee v. Groover, upon writ of error to the
Supreme Court of Florida, in a case involving a title to land,
claimed under conflicting grants from the State of Florida and the
State of Georgia and depending upon a disputed boundary between
those states, this Court ascertained the true boundary by
consulting public documents, some of which had not been given in
evidence at the trial nor referred to in the opinion of the court
below. 123 U.S.
123 U. S. 11
et seq.
In
Taylor v. Barclay, a bill in equity, based on an
agreement which it alleged had been made in 1825 by agents of
"the government of the Federal Republic of Central America,
which was a sovereign and independent state, recognized and treated
as such by his majesty the King of these realms,"
was dismissed on demurrer by Vice-Chancellor Shadwell, who
said:
"I have had communication with the foreign office, and I am
authorized to state that the Federal Republic of Central America
has not been recognized as an independent government by the
government of this country. . . . Inasmuch as I conceive it is the
duty of the judge in every court to take notice of public matters
which affect the government of this country, I conceive that,
notwithstanding there is this averment in the bill, I am bound to
take the fact as it really exists, not as it is averred to be. . .
. Nothing is taken to be true except that which is properly
pleaded, and I am of opinion that when you plead that which is
historically false, and which the judges are bound to take notice
of as being false, it cannot be said you have properly pleaded
merely because it is averred in plain terms, and that I must take
it just as if there was no such averment on the record."
2 Sim. 220, 221-223. That case is in harmony with decisions made
in the time of Lord Coke, and in which he took part, that against
an allegation of a public act of Parliament, of which the judges
ought to take notice, the other party cannot plead
nul tiel
record,
Page 137 U. S. 216
but, if the act be misrecited, ought to demur in law upon it.
The Prince's Case, 8 Rep. 14a, 28a;
Woolsey's
Case, Godb. 178.
In the ascertainment of any facts of which they are bound to
take judicial notice, as in the decision of matters of law which it
is their office to know, the judges may refresh their memory and
inform their conscience from such sources as they deem most
trustworthy. Gresley Eq.Ev. pt. 3, c. 1;
Fremont v.
United States, 17 How. 542,
58 U. S. 557;
Brown v. Piper, 91 U. S. 37,
91 U. S. 42;
State v. Wagner, 61 Me. 178. Upon the question of the
existence of a public statute or of the date when it took effect,
they may consult the original roll, or other official records.
Spring v. Eve, 2 Mod. 241; 1 Hale's Hist. Com.Law (5th
ed.) 19-21;
Gardner v.
Collector, 6 Wall. 499;
South Ottawa v.
Perkins, 94 U. S. 260,
94 U. S.
267-269,
94 U. S. 277;
Post v. Supervisors, 105 U. S. 667. As
to international affairs, such as the recognition of a foreign
government, or of the diplomatic character of a person claiming to
be its representative, they may inquire of the Foreign Office or
the Department of State.
Taylor v. Barclay, above quoted;
The Charkieh, L.R. 4 Ad. & Ec. 59, 74, 86;
Ex
Parte Hitz, 111 U. S. 766;
In re Baiz, 135 U. S. 403.
In the case at bar, the indictment alleges that the Island of
Navassa, on which the murder is charged to have been committed, was
at the time under the sole and exclusive jurisdiction of the United
States, and out of the jurisdiction of any particular state or
district of the United States, and recognized and considered by the
United States as containing a deposit of guano within the meaning
and terms of the laws of the United States relating to such
islands, and recognized and considered by the United States as
appertaining to the United States, and in the possession of the
United States, under those laws.
These allegations, indeed, if inconsistent with facts of which
the court is bound to take judicial notice, could not be treated as
conclusively supporting the verdict and judgment. But on full
consideration of the matter, we are of opinion that those facts are
quite in accord with the allegations of the indictment.
Page 137 U. S. 217
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, 101 U. S. 755,
101 U. S. 770;
Runkle v. United States, 122 U. S. 543,
122 U. S. 557;
11 Opinions of Attorneys General 397, 399.
On referring to the memorial sworn to by Peter Duncan on
November 18, 1857, and to the proclamation of the Secretary of
State of December 8, 1859 (copies of both of which, verified by the
present Secretary of State, were given in evidence at the trial of
this case), and to other papers of intermediate dates, filed in the
Department of State, communicated by the President to the Senate on
April 12, 1860, and printed by order of the Senate in Executive
Document No. 37 of the first session of the thirty-sixth Congress,
the following facts appear in regard to the Island of Navassa:
Duncan's memorial on oath was presented to the Secretary of
State on December 3, 1857. In that memorial, Duncan represented
that on July 1, 1857, he discovered a deposit of guano on an island
called "Navassa," not within the lawful jurisdiction of any other
government and not occupied by the citizens of any other
government; described the island, its latitude, and longitude, and
the deposit of guano thereon, and further represented that on
September 19, 1857, he took peaceable possession of and occupied
the island in the name of the United States, and continued so to
occupy it, and was prepared to furnish satisfactory evidence
thereof, and of all other requisites and facts prescribed by the
act of Congress of 1856, and prayed that the island
"may be considered and declared as appertaining to the United
States, and that he, the said claimant, may have the rights and
advantages allowed and secured to him as such discoverer, which are
by the act of Congress aforesaid provided. "
Page 137 U. S. 218
On April 23, 1858, Cooper, the assignee of Duncan, addressed a
letter to the Secretary of State requesting protection of his
vessels lying and men working at the Island of Navassa against an
apprehended interference by a vessel of war of the Haytian
government.
On April 24, 1858, Cooper presented to the Secretary of State an
affidavit, sworn to March 15, 1858, before the United States consul
at Kingston in the Island of Jamaica, of John B. Lewis, that, as
Duncan's agent, he had been since September 18, 1857,
"in peaceable possession of the said island, taking and shipping
guano therefrom, and that said island was not, when he so took
possession thereof, in the possession or occupation of any other
government or its citizens, and that the possession of said Duncan
through said Lewis and the said Duncan's other agents has not been
in any wise interrupted or sought to be interrupted by any person
whatsoever."
In June, 1858, Cooper, by letters addressed to the President and
to the Secretary of State, informed them that the Haytian
government, upon the pretense that the Island of Navassa was a
dependency of St. Domingo, had sent two vessels of war there, and
forcibly interrupted and prohibited the digging of guano by
Cooper's men, and solicited the interposition of the United States
for the protection of his interests. On July 7, 1858, the Secretary
of State addressed a letter to the Secretary of the Navy in which,
after stating the substance of Duncan's memorial and of Cooper's
application, he said:
"The President, being of the opinion that any claim of the
Haytian government to prevent citizens of the United States from
removing guano from the Island of Navassa is unfounded, and that in
this case it is advisable to exercise the authority vested in him
by the fifth section of the Act of Congress approved August 18,
1856, entitled 'An act to authorize protection to be given to
citizens of the United States who may discover deposits of guano,'
directs that you will cause a competent force to repair to that
island, and will order the officer in command thereof to protect
citizens of the United States in removing guano therefrom against
any interference from authorities of the government of Hayti or of
any other
Page 137 U. S. 219
government. If any persons in the employment of that government
should be found upon the island, an offer may be made to land them
at Port an Prince or at any other point which they may designate,
and their superiors may be informed of the occasion for this
proceeding and of the determination of this government not to allow
the removal of guano from that island by citizens of the United
States to be interfered with in any manner by the citizens or
authorities of Hayti or by persons claiming to act under them. It
is hoped that the President's object may, by firmness and
discretion, be accomplished not only without any effusion of blood,
but without giving reasonable cause for offense in any
quarter."
The Secretary of State on July 8th sent to Cooper a copy of this
letter; on July 12th, demanded of Cooper a bond, as required by the
act of 1856, and on September 10, 1858, accepted such a bond, and
on September 16th, sent him a copy of dispatches received by the
Navy Department from the commander of the vessel ordered to
Navassa, including letters written by him at Port an Prince on
August 16, 1858, to the Haytian minister of foreign relations to
the United States consul at that port, and to Cooper's agent on the
Island of Navassa, informing each of them of the object of his
mission. In the letter to the Haytian minister of foreign
relations, the commander said:
"I am authorized to say to you that the President of the United
States is of opinion that in this case it is advisable to exercise
the authority vested in him by the fifth section of this act, and I
am directed by him to repair to that island to protect our citizens
in removing guano therefrom against any interference from the
authorities of any government whatever, which he hopes I may be
able to do without giving reasonable cause of offense in any
quarter."
On November 13, 1858, Mr. B.C. Clark, the commercial agent of
Hayti at Boston, in behalf of the Haytian government, intercourse
between that government and the United States being at that time
conducted through consuls or commercial agents only, [
Footnote 2] addressed to the Secretary of
State a
Page 137 U. S. 220
letter in relation to the occupancy of the Island of Navassa by
citizens of the United States, in which he said:
"The territory over which Hayti now claims sovereignty was once
the property of Spain, who, in the exercise of an undisputed right,
ceded said territory to France. France, in 1825, through her chief,
Charles X., acknowledged the independence of Hayti, and thereby
vested her with a perfect title to the 'French part' (popularly
termed) and all its dependencies, among which dependencies the
islands of Tortugas, La Vache, Cayemete, Navassa, and Gonaive
Island are declared to be. The government of Hayti, although
frequently importuned, has never ceded, sold, or leased either of
these dependencies to any nation, company, or individual. I
therefore most respectfully ask, in behalf of the government of
Hayti, the attention of the government of the United States to the
infringement on the rights of Hayti involved in the unauthorized
occupancy of Navassa Island by citizens of the United States."
On November 17, 1858, the Assistant Secretary of State replied
to Mr. Clark, saying:
"I am directed to inform you that a citizen of the United States
having exhibited to this department proofs which were deemed
sufficient that that island was derelict and abandoned, with guano
of good quality, and having applied for the protection of this
government in removing the guano therefrom, pursuant to the Act of
Congress of the 18th of August, 1856, a copy of which is enclosed,
that application has been granted. You will notice, however, that
the act does not make it obligatory upon the government to retain
permanent possession of the island."
On December 8, 1859, the Secretary of State issued a
proclamation addressed "to all to whom these presents shall come,"
declaring that Duncan, a citizen of the United States, had filed in
the Department of State the required notice of the discovery of
guano on, and of the occupation of, the Island of Navassa in the
name of the United States, and that Cooper, his assignee, also a
citizen of the United States, had entered into sufficient bonds
under and according to the Act of Congress of August 18, 1856, and
therefore that Cooper was
"entitled, in respect to the guano on the said
Page 137 U. S. 221
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 that he should abide by the conditions and requirements
of that act.
The opinion submitted by Attorney General Black to the Secretary
of State on December 14, 1859, 9 Opinions of Attorneys General 406,
to the effect that the President has no right under the law to
annex a guano island to the United States, or to put American
citizens in possession of it while a diplomatic question as to the
jurisdiction over it is pending between the United States and a
foreign nation, cannot influence our decision in this case, for
several reasons. In the first place, that opinion was given six
days after the proclamation regarding the Island of Navassa, and
concerned only a distinct island, Cayo Verde, claimed by the
British government as within its jurisdiction and belonging to the
Bahamas. In the next place, no diplomatic question was then pending
as to the jurisdiction over the Island of Navassa; on the contrary,
the President had repeatedly declared that the claim of Hayti was
unfounded. Lastly, the office of the Attorney General was to advise
the President what he ought to do; the duty of the judiciary is to
decide in accordance with what the President, in the exercise of a
discretionary power confided to him by the Constitution and laws,
has actually done. As was adjudged, under like circumstances in
Williams v. Suffolk Ins.
Co., 13 Pet. 415,
38 U. S. 420,
before quoted, if the executive, in his correspondence with the
government of Hayti, has denied the jurisdiction which it claimed
over the Island of Navassa, the fact must be taken and acted on by
this Court as thus asserted and maintained; it is not material to
inquire, nor is it the province of the court to determine, whether
the executive be right or wrong; it is enough to know that in the
exercise of his constitutional functions he has decided the
question.
The documents from the State Department above mentioned show the
following action of the President, through the Secretary of State,
with regard to the Island of Navassa:
In the order of July 7, 1858, sending out an armed vessel under
section 5 of the act of 1856 to protect Cooper in removing
Page 137 U. S. 222
the guano, the President unequivocally declared his "opinion
that any claim of the Haytian government to prevent citizens of the
United States from removing guano from the Island of Navassa is
unfounded," and
"the determination of this government not to allow the removal
of guano from that island by citizens of the United States to be
interfered with in any manner by the citizens or authorities of
Hayti."
In the response of November 17, 1858, to the letter of the
Haytian government through its commercial agent claiming the Island
of Navassa as a dependency of Hayti, the President declared that a
citizen of the United States had exhibited proofs which were deemed
sufficient that "that island was derelict and abandoned, with guano
of good quality," and that his application for the protection of
the government in removing the guano therefrom, pursuant to the act
of Congress of 1856, had been granted. The reference at the close
of this response to the provision in section 4 of that act
reserving the right of the United States to discontinue its
possession of the island after, by the removal of the guano, it
shall have ceased to be of any value, has, to say the least, no
tendency to show that the United States had not for the time being
assumed dominion over the island.
In the proclamation of December 8, 1859, after reciting the
discovery and occupation of the island by Duncan and the giving of
a bond by his assignee Cooper, pursuant to the act of 1856, Cooper
was declared to be
"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."
Although this proclamation does not in terms follow the first
clause of the prayer of Duncan's memorial, "that said Key or Island
of Navassa may be considered and declared as appertaining to the
United States," the declaration of the President, in accordance
with the conclusion of that prayer, that Cooper, as Duncan's
assignee was entitled, in respect to the guano upon that island, to
the privileges and advantages secured by the act of Congress to
citizens of the United States discovering deposits of guano is
equivalent to a declaration that the President
Page 137 U. S. 223
considered the island as appertaining to the United States.
Seeing that the act of Congress had not authorized any rights or
privileges to be allowed to the discoverer of a guano island, or
any bond to be required of him, or any protection to be given to
him, by the United States, unless the President was of opinion that
the island should be considered as appertaining to the United
States, the terms of the order of the President of July 7, 1858, of
his response of November 17, 1858, to the protest of the official
representative of Hayti, and of his proclamation of December 8,
1859, clearly show, or necessarily imply, that the President,
exercising the discretionary power conferred upon him by the
Constitution and laws, was satisfied that the Island of Navassa was
not within the jurisdiction of Hayti, or of any foreign government,
and that it should be considered as appertaining to the United
States.
But the case does not rest here. The subsequent action of the
President, through the appropriate departments, has put the matter
beyond all question.
In a circular of the Treasury Department of February 12, 1869,
"relative to the guano islands appertaining to the United States,"
and addressed "to collectors of customs," the Secretary of the
Treasury said:
"You will find hereto annexed a corrected list of the guano
islands, bounded under the Act of August 18, 1856, as appears by
the bonds and papers, transmitted from the Department of State, now
on file in the office of the First Comptroller of the Treasury. The
several islands named and described in said list having been duly
bounded, and considered by the President of the United States 'as
appertaining to the United States,' in manner and form prescribed
by said act, and, as a consequence thereof, brought under the laws
regulating the coasting trade, your attention is directed to the
same with a view to the proper enforcement of the laws regulating
intercourse with said islands."
The list, annexed to that circular, of "guano islands pertaining
to the United States and bounded under the Act of August 18, 1856,"
included the Island of Navassa.
Page 137 U. S. 224
Finally, by letters from the Secretary of State to the Haytian
minister on December 31, 1872, and on June 10, 1873 (mentioned,
under mistaken dates, in 3 Whart. Int.Law Dig. § 312, and copies of
which have been obtained from the Department of State), it appears
that upon the Haytian government's renewing its claim to the Island
of Navassa, the United States utterly and finally denied the
validity of the claim, and reasserted and maintained their
exclusive jurisdiction of that island by reason of its discovery
and occupation by Duncan and Cooper, and under the act of Congress
of 1856.
The only other point presented by the record and argued in
behalf of the defendant is his exception to the exclusion of
evidence that in April, 1889, a foreign vessel was loaded at
Navassa with guano intended for the use of persons other than
citizens or residents of the United States. It was argued that this
evidence was admissible as showing a breach of condition of
Cooper's bond, and a consequent forfeiture of his rights, under the
provision of section 2 of the act of 1856, reenacted in Rev.Stat. §
5574. It does not distinctly appear whether such breach took place
before or after April 16, 1889. If it took place before, it was
within the period of five years during which the operation of that
provision of the statute was suspended by the Act of April 18,
1884, c. 24, 23 Stat. 11. But whenever the breach took place, it
affected the private rights only of the delinquent, and did not
impair the dominion of the United States, or the jurisdiction of
their courts. For the reasons above stated, our conclusion is that
the Guano Islands Act of August 18, 1856, c. 164, reenacted in
title 72 of the Revised Statutes, is constitutional and valid; that
the Island of Navassa must be considered as appertaining to the
United States; that the Circuit Court of the United States for the
District of Maryland had jurisdiction to try this indictment, and
that there is no error in the proceedings.
Judgment affirmed.
[
Footnote 1]
"
Navassa Phosphate Company, 20 & 22 South Street,
Baltimore"
"This agreement, made at Baltimore the 12th day of January,
1889, by and between the Navassa Phosphate Company, of the first
part, and the undersigned laborers of the United States, of the
second part, as follows:"
"Said laborers agree to proceed, under the orders and
instructions of said Navassa Phosphate Company, or its agents, on
board such vessel as shall be provided for the purpose, to Navassa
Island, for the business of assisting in loading of vessels with
cargo, either by working on shore or in boats, and for this purpose
the parties of the second part hereby covenant and agree to devote
their whole time and services in such labor as they may be directed
to do by said Navassa Phosphate Company, or its agents, and for as
many months as the said Navassa Phosphate Company may desire, not
exceeding in all fifteen months from the time of arriving at
Navassa Island until discharged therefrom, at which time their
wages are to commence and cease. And the said Navassa Phosphate
Company agrees on its part to pay said undersigned the monthly
wages set opposite their respective names, and to furnish a free
passage to and from said Island of Navassa, and further to find
said undersigned laborers in the usual provisions furnished to such
laborers, free of all expense to the parties of the second
part."
"Payment of wages to be made on the return of the parties of
second part to Baltimore, and, should they fail to obey the orders
and instructions of said Navassa Phosphate Company, or its agents,
or refuse at any time to labor, they shall forfeit all claim for
wages and compensation which may be due them."
"If said Navassa Phosphate Company fails to comply with this
agreement on its part, it shall forfeit the sum of twenty, in
addition to full monthly wages and free passage, to the parties of
the second part to this contract. The parties of the second part
further agree, in case of sickness or lost time, to pay the said
Navassa Phosphate Company fifty cents per day board, and said
Navassa Phosphate Company not to liable for any wages or
compensation for time lost by the parties of the second part by
sickness or otherwise."
"The parties of the second part agree, upon signing the
contract, to obey and abide by all the rules, regulations, and laws
that may now be in operation or hereafter put in force on the
Island of Navassa, West Indies, for the better protection of life
and property, and that may be deemed necessary for police
protection and discipline of the island, and release said Navassa
Phosphate Company from any and all liability for any injury arising
from accident, or from any acts of any officer or employee on the
Island of Navassa."
"It is further understood and agreed to by the parties of the
second part that in case they are not competent to perform the
duties as herein stated, they to pay their passage back to the
United States, and the party of the first part not to be liable for
any wages whatsoever. It is also understood that fifty cents per
month shall be deducted from the wages of the parties of the second
part for medicines and medical attention."
"NAVASSA PHOSPHATE COMPANY"
"Per JOHN H. HASKELL, for the Company"
"In consideration of the foregoing, and the advance wages set
opposite our names, the receipt whereof is hereby acknowledged, we
have signed this contract, in duplicate, as witness our hands:"
-------------------------------------------------------------------------
Signatures Monthly Advance Witness to Age Place of
wages paid signature and birth
payment
-------------------------------------------------------------------------
No. 14. Henry Jones $8.00 $10.00 4-1 22 Baltimore
* * * * * * * * * * * * * * * * * *
-------------------------------------------------------------------------
"We hereby certify that we, the undersigned, were present on
board the brig
Romance, in the harbor of Baltimore, Md.
when the above-named men acknowledged that they had signed the
above contract, and that they were willing to go to Navassa Island,
W.I., and obey all orders, rules, and regulations; that the advance
set opposite their respective names was correct, and that they had
received the money."
"CHARLES BROWN, Master"
"FREDERICK ABBOTT, Mate"
"JOHN W. PEED, Shipper"
"Baltimore, January 12th, 1889"
[
Footnote 2]
Acts of August 18, 1856, c. 127, 11 Stat. 52, 54; June 5, 1862,
c. 96, and July 11, 1862, c. 143, § 1, 12 Stat. 421, 534.