Year: 1863

In 1856, Congress granted to the DISCOVERIES of
new guano islands the exclusive right to take
guano therefrom, subject to certain restrictions
of which was that the guano so taken should be
brought only to the United States. This restric-
ton imposed in the supposed interest of Amer
lean farmers.


In July last, in view of the very much dmin-
ished demand for guano in this country resulting
from civil war, and the urgent solicitation of the
commercial interest, this restriction against the
sale abroad of guano from newly discovered islands
was suspended for one year.


Questions have arisen as to the cases of guano
island discOverers who violated this restriction
while it was still in force. These questions of
great public well as private Importance, and we
therefore print below a very clear and succinct
opinion upon the subject.


OPINION OF HONS. A. C. NJ. PENNINGTON AND ]. J.


CRITTENDEN.


Our opinions are requested on the points pre-
sented by the following questions First.-lf any
person claiming to be dscoverer or the assignee
of discover who shall have been allowed an ex-
elusive right to occupy any island for the purpose
of obtaining, selling and delivering guano there
from, under the Act of Congress of August 18th,
1856, relating to guano islands, or who shall have
applied or may apply to be allowed such exclusive
right shall have taken, sold and delivered guano
thererom for the of others than citizens of the
United States, of persons resident therein, and
for the purpose of being used elsewhere than in
the United States before July 2lst, 1862 the date
of the passage of an Act whereby the export of
guano is authorized for year, what effect have
such taking, or such sale and delivery, on the
rights of such person and on the rights OF the
United States in regard to such island?


Second.-If the sureties of any person who shall
have been allowed such exclusive right on the bond
given under the Act first before mentioned shall
IL, Sc taEi
such sale and delivery, and apply to be absolved
from their liability by thereof, what action
on the part of the Government may they reasona-
bly, anticipate?


Third. in the case of such taking, or such sale
and delivery, has the President, without further
legislation by Congress, the power to grant per-
mission to any other person TO take guano from
such island


In answer we reply


First-The first question relates to three dis
tinct classes of persons


/. Those to whom such exclusive right has been
allowed.


2. Those who have applied for it.


3. Those who may apply for it.


In the case of persons of the first class such
taking, or such a sale and delivery as is contem-
plated by this question is clearly violation of the
Act of Congress under which the exclusive right
was allowed, and of the bond required as condi-
ton of such allowance, and the effect of such vo-
lation is not only to render the principal and sure
ties liable on the bond, but also to forfeit all the
rights which had accrued to the principal under
the Act. BY such forfeiture these rights are
wholly extinguished, and the Government having
previously assumed sovereignty over the island as
appertanng to the United States by discovery,
and possessing it thereby all the rights which,
according to the law of nations, follows and al
taches to an acquisition under circumstances, has
not only the general governmental power over II,
but also the ownership Of the soil, and the power
and right to dispose of it, and of the deposits of
guano upon it, and to control their use in its own
discretion.


In the case of persons of the second and third
classes, such taking, such sale and delivery,
being in direct contravention of the purpose of the
Act, would doubtless be regarded by the Govern
ment as a sufficient reason for refusing to allow
such exclusive right.


Second.-In the case of such a violation of the
bond, it is in the discretion of the Government to
enforce it against the sureties not but we think
it can scarcely admit of a doubt that the Govern
ment in an affair of this nature, would regard the
good faith of the sureties in giving prompt notice
of the violation, and thereby enabling the Govern
ment to terminate the exclusive right with favor,
and as presenting just claim to be exonerated
from their liability.


Third is quite clear we think that the Pres
ident in case of such forfeiture and extinguish-
ment as to any island, would not, without further
Legislation by Congress. have the power to allow
such exclusive right to any other person, unless
such person should be able to bring himself within
the terms of the Act as discoverer, the assignee
of dscoverer, nor to grant to any other person
permission to take guano therefrom, nor to exer-
else any control over it other than to protect it
public property.


(Signed,) A.C. NJ. PENNINGTON,


(Signed,) j. CRITTENDEN.
Washington National Republican, Sept. II.