Papers Relating to the Foreign relations of the United States, 1927, Volume II
811.0141 Sw 2/92
The Secretary of State to the Chargé in Cuba (Curtis)
Sir: The Department has received the Embassy’s despatch No. 2316, dated October 20, 1927, enclosing a memorandum of the Cuban Government suggesting the installation of a meterological station on Swan [Page 532] Island, to be jointly maintained by the Governments of Cuba, Great Britain, Mexico and the United States, and, apparently installed and operated by Great Britain.
The Department was advised by the Attorney General of the United States in an opinion dated June 24, 1925, that the dominion of the United States was extended over the Swan Islands by the President, as evidenced by a certificate of Secretary of State Seward, dated February 11, 1863, and that the sovereignty of the United States attached to the said Islands as of that date.
In 1921 the Department was informed that the Government of Honduras claimed sovereignty over the Swan Islands on the ground that the Islands were originally under the old Spanish Colonial Government and were included in territory returned by England to Spain under the treaties of 1783 and 1786, which later became territory of Honduras upon its attainment of independence. The United States Government does not, however, admit the claim of the Government of Honduras.
There is enclosed a copy of the Opinion of the Attorney General, dated June 24, 1925, which you may hand to the Cuban Government, at the same time informing that Government that a reply will shortly be made to the memorandum of October 20th, 1927.
I am [etc.]
The Attorney General (Sargent) to the Secretary of State29a
Sir: I have the honor to respond to your letter of August 21, 1924,30 making reference to the opinion to the Secretary of the Navy of February 8, 1918 (31 Op. 216), with respect to the jurisdiction of the United States over the Swan Islands, situate in the Caribbean Sea, and requesting reconsideration of the subject in the light of the additional facts set forth in the memorandum enclosed with your letter.
The opinion of February 8, 1918, was based upon a statement of facts submitted by the Secretary of the Navy. It is now stated that a complete statement of the existing facts was not before the Attorney General at the time the opinion in question was rendered.
The principal questions submitted to the Attorney General by the Secretary of the Navy were:
- (1)
- “Has the United States Government acquired sovereignty over the said islands by virtue of the Guano Island Act of August 18, 185631?”
- (2)
- “If such sovereignty has not been acquired by virtue of the Guano Island Act, has the United States at present the right to extend its sovereignty over the said islands?”
In reply to the first question, after stating the facts as presented to him, including the statement that those claiming under the original discoverer had furnished the bond required by the statute, the Acting Attorney General said: “It nowhere appears, however, that any executive action was taken by the President, or on his behalf, through the Secretary of State, at any time, which could be construed as an exercise of the discretion conferred upon the President by the Act of August 18, 1856, such as to amount to a declaration that the Swan Islands were considered as appertaining to the United States.” The conclusion stated in that opinion was that the United States had not acquired sovereignty of any kind over said Islands.
In reply to the second question the Acting Attorney General, after reviewing the facts said: “These facts and circumstances are sufficient in my opinion to warrant the statement that no other country has any proper claim to these islands, and that the United States Government may at any time assert its sovereignty over them by appropriate action.” It, therefore, appears from the opinion of February 8, 1918, that all of the conditions necessary to the assertion of sovereignty over the Swan Islands had been complied with, but the facts presented did not show that the necessary action had been taken by the President to extend sovereignty over said islands.
It now appears that the Government of Honduras is asserting claim to sovereignty over the Swan Islands, based upon the contention that the islands were originally under the old Spanish Colonial Government, and became a part of the territory of Honduras upon that country attaining its independence.
The facts relating to the discovery and attempted acquisition of the Swan Islands, as set forth in the memorandum enclosed with your letter, are as follows:
Joseph W. Fabens, under date of May 19, 1857, informed the Department of State that he had in person or by his regularly employed agents, discovered deposits of guano on certain islands in the Carribean Sea (including the Swan Islands); that he and his associates were desirous of organizing a company to bring away the guano deposits on the islands referred to and inquired concerning the steps to be taken in order that he and his associates might be entitled to occupy the islands in question. The Secretary of State, under date of May 25, 1857, requested the opinion of the Attorney General as to the proper construction to be placed upon the Act of August 18, 1856, particularly as to the time when and the extent to which alleged discoverers of guano may fairly request intervention [Page 534] of the President. The Attorney General in an opinion dated June 2, 1857 (9 Opin. page 30) enumerated the facts upon the establishment of which the President might consider an island as appertaining to the United States and protect the rights of the discoverer thereof. The opinion of the Attorney General was brought to the attention of Fabens and on June 18, 1857, he and Charles Stearns transmitted to the Department the affidavits of George Valentine White, the alleged discoverer of the guano deposits in question, and Samuel E. Stearns, together with an assignment of White’s interest in Swan Islands to Fabens and Charles Stearns and their associate, Duff Green, and inquiring concerning the form of the bond and the amount of security to be required under the Act of August 18, 1856.
Subsequently Joseph W. Fabens, Charles Stearns and Duff Green created a corporation under the laws of the State of New York by the name of the “Atlantic and Pacific Guano Company”, in which company was merged all their right, title, and interest in and to the Swan Islands and the guano deposits thereon. There are several reports in the Department’s files indicating that the company was engaged in shipping guano from the Swan Islands during the year 1858.
The Atlantic and Pacific Guano Company by deed of October 4, 1862, conveyed its interests in the islands to George I. Crocker, who, by deed dated October 6, 1862, conveyed the title thereto to the New York Guano Company, a corporation organized under the laws of the State of New York. Fabens and his wife quitclaimed their interest on November 24, 1862, to the New York Guano Company. The latter company in December, 1862, presented its bond to the Department and asked for recognition under the Act of August 18, 1856. The bond, to which no certificate of approval was attached, was withdrawn to supply that defect and was returned to the Department during the latter part of January, 1863.
On January 31, 1863, the Department received from the New York Guano Company additional affidavits, maps, and papers in support of the company’s claim, including an affidavit executed December 31, 1862, by Thomas P. Morgan, stating that in August, 1858, he assisted Lieutenant George T. Sinclair, United States Navy, who was stated to have been detailed for the purpose by the Navy Department, and Thomas Walter, chemist, in making a survey of the Swan Islands and that Lieutenant Sinclair estimated the quantity of guano to be in excess of three million tons, yielding from forty to sixty-nine per cent of phosphate of lime.
Honorable William H. Seward, Secretary of State, under date of February 18, 1863, in response to a communication of February 10, [Page 535] 1863, from V. A. Baldwin, regarding the recognition of the claim of the New York Guano Company, stated as follows:
“I have to acknowledge the receipt of your letter of yesterday relative to the recognition of the claim of the New York Guano Company to the guano on Swan Islands and in reply to transmit herewith a certificate under the seal of the Department on the subject.”
The certificate referred to, a copy of which is in the possession of the Department, reads as follows:
“To all to whom these presents shall come, Greeting:
“I certify that the New York Guano Company have filed in this Department satisfactory proof of their claim to the guano on great and little Swan Islands in the Carribean Sea as the assignees of the original discoverers; have filed the bond, and taken the steps required by the Act of Congress of the 18th of August, 1856, entitled ‘An Act to authorize protection to be given to citizens of the United States who may discover deposits of guano.’
“In Testimony Whereof I have hereunto set my hand and caused the seal of the Department of State to be affixed at Washington, this 11th day of February in the year of our Lord eighteen hundred sixty-three.”
The Department, under date of February 11, 1863, transmitted the bond of the New York Guano Company to the First Comptroller of the Treasury in order that it might be properly filed.
At the time of the rendition of the opinion of February 8, 1918, a copy of the certificate of the Secretary of State, dated February 11, 1863, above set forth, was not before the Acting Attorney General, as shown by the statement in the opinion that “It nowhere appears, however, that any executive action was taken by the President or on his behalf …” This assertion is confirmed by an examination of the statement of facts supplied by the Secretary of the Navy. Had a copy of that certificate been supplied to the Attorney General I have no doubt but that he would have answered the first question in the affirmative.
It is also stated in said memorandum, as showing the interpretation placed upon the certificate above referred to, that Secretary of State Seward, on March 23, 1863, wrote to Mr. U. P. Parish as follows:
In reply to your letter of the 18th instant making inquiries in relation to the evidence in this Department of the quantity and quality of guano on Swan Island in the Carribean Sea, I have to state that the proofs filed by the New York Guano Company to secure the protection of the Government for their possession of the said Island, purport to show that the quantity thereon is more than three million tons, and in regard to the quality, that samples taken from different localities yielded from forty to sixty-nine and a fraction per cent of [Page 536] phosphate of lime. It is proper to say that while these proofs were considered sufficient to authorize the Government to extend the protection asked for, under the Act of August 18, 1856, the Department is in no wise responsible for their truth and correctness. There is no evidence in this Department of any adverse claim to that of the New York Guano Company to the island in question.
It is further stated that the Secretary of the Treasury, under date of February 12, 1869, issued instructions to collectors of customs directing them to enforce the provisions of the Coastwise Shipping Laws to guano islands appertaining to the United States, and enclosed therewith a list of such islands, among which appeared the Swan Islands, now under consideration. It appears, therefore, that the certificate set forth above was considered by both the Secretary of State and the Secretary of the Treasury as a sufficient proclamation of the extension of sovereignty over the Swan Islands, and that the conditions precedent prescribed by the Guano Islands Act had, in the opinion of the Secretary of State, at that time been complied with.
The Act of August 18, 1856, c. 164, 11 Stat. 119, known as the Guano Islands Act, is contained in sections 5570 to 5578 Revised Statutes. It provides the method by which jurisdiction may be acquired and the sovereignty of the United States extended over unoccupied and unclaimed islands containing guano deposits. It provides certain conditions which must be complied with by the discoverer, or those claiming through him, and when such conditions have been complied with the President may, in his discretion, consider the same “as appertaining to the United States.” Section 1 of that Act (section 5570 R. S.) reads:
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.
The facts required by the statute to be established by the discoverer, or those claiming through him, before such person or persons may claim the protection of the United States, as set forth by Attorney General Black, in 9 Op. 30, are:
- 1.
- That a deposit of guano has been discovered upon the island by an American citizen.
- 2.
- That such island is not within the lawful jurisdiction of any other government.
- 3.
- That the island is not occupied by the citizens of any other government.
- 4.
- That the discoverer has taken and occupied peaceable possession thereof in the name of the United States.
- 5.
- That the discoverer has given notice of these facts as soon as practicable to the State Department, on his oath.
- 6.
- That the notice has been accompanied with a description of the island and its location.
- 7.
- That satisfactory evidence has been furnished to the State Department showing that the island was not taken out of the possession of any other government or people.
- 8.
- That the discoverer, his heirs, or assigns, shall give bond in such penalty as may be required by the President to deliver guano to citizens of the United States for the purpose of being used therein, and to none others, and at prices not to exceed the maximum fixed by statute.
From the facts relating to the Swan Islands now submitted, it appears that all of these conditions were complied with by the assignee of the discoverer; that an acceptable bond was given, and that the Secretary of State on February 11, 1863, certified that the New York Guano Company, claiming as the assignee of the original discoverer, had “taken the steps required by the Act of Congress of the 18th of August, 1856.”
There is no provision in the Guano Islands Act requiring the President to proclaim that the conditions of the Act have been complied with, and that a certain island or islands may be “considered as appertaining to the United States”. The extension of the protection of the United States Government to any particular island rests within the discretion of the President, after determining that the statutory conditions have been complied with, but evidence of the exercise of this discretion may be manifested by the announcement or certificate of the Secretary of State. Jones v. United States, 137 U. S. 202, 217. The Court there said:
The power conferred upon 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.
As the determination of the questions whether or not the statutory conditions relating to the acquisition of guano islands have been complied with, and whether or not it is expedient to extend the protection of the United States government to any particular island, are matters resting within the sound discretion of the President; and as his decision properly may be announced by the Secretary of State, it is my opinion that the certificate of Secretary Seward, dated February 11, 1863, that all of the steps required by the Act of 1856 have been complied with, is “equivalent to a declaration that the President considered [Page 538] the island as appertaining to the United States”. Jones v. United States, supra, pp. 222–223. As such it is conclusive, not only upon the executive officers of the Government, but upon the courts as well. Jones v. United States, supra, pp. 212, 221.
The fact that the Albion Chemical and Export Company, successor to the New York Guano Company, abandoned Swan Islands on February 5, 1904, and that Mr. Alonzo Adams reoccupied and took possession of the islands on February 6, 1904, does not affect the sovereignty of the United States over said islands.
Sovereignty of the United States having once been extended, no act of the tenant or licensee could deprive the United States of its dominion over said islands. Jones v. United States, supra, p. 224. There the court had under consideration the effect of an alleged breach of bond given under the Guano Islands Act with reference to the Navassa Island. The court said: “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.”
It is my opinion, therefore, that the dominion of the United States government was extended over the Swan Islands by the President, as evidenced by the certificate of Secretary Seward, dated February 11, 1863, and that the sovereignty of the United States attached to said islands as of that date.
Respectfully,