60 AVES ISLAND. 



the Executive to exercise the acts necessary to give effect to such faculty, 

 or to entitle the United States to the benefits, or to reap the fruits of 

 such discovery. It is appropriately an executive function and power, 

 and from its nature and character does not callfor previous legislation. — 

 (Attorneys General Opinions, vol. 1, cited, 1 Phill., p. 243.) 



If diplomatic action, or any measures (except actual war) as to a 

 foreign State, is necessarily required for the maintenance and protec- 

 tion of the rights of the United States, or of a State, or of any citizen 

 thereof, (whether they result from discovery and occupation of an isle 

 in the high seas,) and in all cases the preliminary proceedings are an 

 executive function. The regulation of our foreign intercourse, and all 

 diplomacy, is a constitutional executive function, and not a legislative 

 duty. — (See Kennett vs. Chambers, 14 Howard, p. 38; Wheat. Int. 

 Law, p. 35.) 



Congress may not rightfully interfere with it, except by express law, 

 and cannot control it even then beyond certain limits. The Senate may 

 refuse to ratify a treaty, and both houses or either house may refuse to 

 vote appropriations ; and in some cases it might be proper for Congress 

 to adopt advisory or directory resolutions, and in others condemnatory 

 resolutions ; but in these last cases such action is not constitutionally 

 imperative in the Executive, and the constitutional propriety of with- 

 holding appropriations by the House has been strongly questioned. 



The laws of nations are a part of the laws of the United States, which 

 the President has sworn to see are ^^ faithfully executed." — (Wheat. Int. 

 Law, p. 514.) 



The rights of the United States, and of i\\e discoverer who belongs 

 to her, in virtue of such discovery and occupation of a vacant isle, are 

 founded upon the laws of nations, and the Executive is as much bound 

 to enforce and maintain them as he is to enforce and maintain the ex- 

 emption of our vessels on the high seas from visit and search, which 

 is also guarantied by the jus gentium. — (Yattel, book 2, c. 6, § 71, p. 

 161; lb., lib. 1, § 17, p. 5; lb.. p., 392, § 205.) 



XIII. THE NON-EXISTENCE OF ANY RESTRAINING OR DIRECTORY LAW LEA VIS 

 PLENARY POWER WITH THE PRESIDENT. 



The absence of any statutory prohibition or direction as to the course 

 to be pursued by the Executive is an implication that Congress intended 

 to let the rights of the United States and of its citizens, resulting from 

 the discovery and occupation of a vacant isle, in virtue of the laws of 

 nations, to stand upon the laws of nations, and that the executive 

 maintenance and protection of those rights should be according to the 

 principles of international law. Any fetter or restraint upon the ex- 

 ecutive powers (admitting that Congress can impose it) must not be 

 implied. The intention to do 'so must be manifested by express law 

 enacted in due form. — (As to President's power, see 5 Wheat., app., 

 Marshall's speech; 1 G-allison'sKep., p. 563; 3d vol. Opinions Attor- 

 neys General, p. 28; 7 Howard, 1; 13 Peters, 498; 12 Wheat., 19; 

 9 Cranch, 126.) 



