UNITED STATES v. LOUISIANA

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Argument of Rankin

Chief Justice Earl Warren: Number 10, Original, United States of America, Plaintiff, versus States of Louisiana, Texas, Mississippi, Alabama and Florida.

The orders of the Court are hereupon the list certified by the Chief Justice to be filed with the clerk.

It will not do our (Inaudible)

Mr. Rankin: Mr. Justice Black, may it please the Court.

This case involved the issue of whether the United States is entitled to the lands, minerals and other things under the sea within the distance beyond three miles seaward of the low watermark or the limit of inland waters.

This Court by its decisions in the cases of United States against California, United States against Texas and United States against Louisiana determined that all of the lands, minerals and other things under sea from the low watermark and the outer limit of inland waters, belong to the United States or at least that the United States had paramount rights and power over such properties.

So that without further action, there'll be no question here, but what all of that land or those lands, properties, minerals and so forth, belong to the United States.

The question then before the Court is what kind of a relinquishment the United States may, to give to the States some rights in such properties and the extent of that relinquishment.

The only relinquishment that the Court needs to deal with at this time is that made by the Submerged Lands Act of 1953.

And what were the intents and purposes of the Congress in the passing of that Act.

The Act is set out on pages 31 through 34 of the Government's brief, insofar as the crucial parts of it are concerned, that the Court needs to turn its attention to during this deliberation and argument.

The grant was made by Section 3 that appears at the bottom of page 31.

And it defines the nature of the grant titled to and ownerships of -- of the lands, beneath navigable waters within the boundaries of the respective States and so forth.

And the right and power to administer such land and properties and the United States hereby releases and relinquishes onto the States such properties.

Then you have to turn to Section 2 to determine the definition of what lands beneath navigable waters are defined to be under the Act.

And that recites where, in any case, the boundary line of each such State or in any case, such boundary as it existed at the time such State became a member of the Union.

Now, that will become during this argument, a crucial language that the Court will have to determine the meaning of and if it is not entirely clear from the language itself what the Congress intend, which can be drawn from the congressional debates and the other actions by the Congress before the passage of the Act.

It also goes on indeed to say, includes the seaward boundaries of a State or its boundaries in the Gulf of Mexico or any of the great lakes as they existed at the time such State became a member of the Union or as heretofore approved by the Congress or as extended or confirmed pursuant to Section 4 hereof.

Some of the issues involved will be what -- when at the time the State became a member of the Union means.

Whether it meant the time that the State became one of the number of the States of the United States, whether it meant just prior to that time, the claim is made that that language is open to the construction that meant prior to the time it became a member of the Union.

Or whether it is that exact moment when the State enters upon its respective rights, duties and limitations as a member of the Union or the United States of America.

Then there are some questions that will be dealt with during the argument in regard to Section 4.

Section 4 was intended and says in so many words that it -- purpose is to give to the States that do not have a three-mile boundary, the right to extend their boundaries out to three miles and confirms those boundaries expressly.

And then leaves open, the Government of the United States contends, the question of whether or not, they got the beyond three miles as to whether the States of the Gulf and that -- those were the only States that are allowed the opportunity to establish that they had a boundary at the time they became a member of the Union, beyond three miles up to three leagues.

The law is very clear that they limited the grant, so that it could not in any case, be beyond three leagues.

But they are given the opportunity, the -- the United States contends.

Justice John M. Harlan: Are any of the States in claiming the rights of Continental Shelf to (Inaudible)

Mr. Rankin: We think that it's clearly recognized in the briefs in this litigation now, that the Act does not permit anything beyond the three leagues.

The provisions of Section 4 do preserve, the United States concedes or agrees the right for them to claim for other purposes that they at the time they became a member of the Union, did have a boundary beyond then -- the three leagues.

But under the Act, it is recognized by the briefs of the parties that no claim can be validated or found to be valid by this Court beyond three leagues, because it expressly limits it to that.

Now, during the debates there was --

Justice John M. Harlan: The reason for my question was -- my recollection to the original argument in this case where Louisiana was the sole party was that were was a claim made to be extended beyond three leagues up to the Continental Shelf, that claim has been abandoned?

Mr. Rankin: That -- that claim has been abandoned insofar as it would be a claim that there is any grant beyond three leagues.

There is still a contention by Louisiana that it did have rights or did have boundary claims --

Justice John M. Harlan: Yes.

Mr. Rankin: -- that extended beyond three leagues.

Justice John M. Harlan: But the measure of its claim now is three leagues and no more, is that it?

Mr. Rankin: Yes.

And it uses the other, merely for the purpose of trying to substantiate the three-league claim.

Justice John M. Harlan: Thank you.

Mr. Rankin: On page 34, there is a language that nothing in this section is to be construed and that's in Section 4, page 34, at the top of the page.

“As questioning or in any manner prejudicing the existence of any State's seaward boundary beyond three geographical miles, if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress.

The United States takes the position that that is a no-prejudice sentence in Section 4.

And was expressly put into the statute, so that there would be nothing, no construction, conclusions or interpretation drawn from this particular Submerged Lands Act Law that would prejudice, that would go against any State as to its claim.

But the United States also contends, which is contrary to the State's contention and I want to call it your attention as we develop it in the argument.

That there was no purpose to create affirmative rights by that provision that it didn't declare, affirm or confirm.

Now, the first part of Section 4 does confirm such boundary claims up to three miles that have been made prior to that time.

And that was the scheme of the statute.

That all of the States that would have a maritime boundary, would have such boundaries perfected and confirmed either if they had them already or if they further -- if they later extended them to three miles.

And then the question came as to what about the three leagues.

And the Congress carefully provided that this Act was not to prejudice such claims either for the purposes of this litigation or any contentions under this statute or any other purpose.

But it didn't confirm -- give any validity or make valid any such claims beyond three miles.

Now the contention of the States just stated and we'll develop in the argument, is that this -- the purpose of this was to validate such claims to three leagues.

And that by reading this particular provision about no-prejudice, they tried to take the words, “prior to,” or at the time such State became a member of the Union, in that particular sentence and read them back into the other section of Section 2, so as to put, “prior to” in Section 2 where it very clearly says, “Not prior to at all, but at the time it became a member of the Union”.

And the Government of the United States contends that Congress did this carefully and deliberately trying to relate itself in the no-prejudice, where they could claim this extended boundary for many other purposes in regard to their State activities.

But as far as this law was concerned, they said, “If you want to come within this law and get three leagues or three miles, you must comply with this provision.”

The three miles was -- confirms, so we don't have to bother about that.

But beyond three miles, you have to show that at that time you became a member of the Union, you had a boundary beyond three miles.

And then you can get, if you can prove it, what you can prove between three miles and three leagues and no more.

Justice Hugo L. Black: Did you say again that it means the same as though it's been written after admission of the State?

Mr. Rankin: Well, Mr. Justice Black, I don't think it's quite after because --

Justice Felix Frankfurter: Or by reason of -- by reason of --

Mr. Rankin: -- by reason of -- because at them moment I think we can deal with it for a moment in our thinking by taking the States of Alaska and Hawaii.

Now, in the instance of Alaska, Congress wanted to deal with the question of certain properties, prior to the time it became admitted in the Union.

And it said so, “Certain governmental installations and other properties of that kind.”

And it expressly provided that, “prior to” was the measure.

And it said that that kind of control of the United States over those properties, that it had, prior to, should continue after the new State very carefully done showing Congress knows how to do those things exactly the way it wants to.

Justice Felix Frankfurter: Was reference made in the Hawaiian situation to the controversy that had arisen under this Act?

Mr. Rankin: I don't recall it was.

I can't -- I don't know, but I could find that information supplied, if you like.

But they did it precisely, deal with that question of “prior to”.

Now, here they say with -- explicitly in Section 2, “At the time they became a member of the Union and on the non-prejudice, they deal with the words, prior to, in addition showing their ability to distinguish in treating the two matters.”

But in dealing with the question of, at the time, in trying to answer Mr. Justice Black's question, at the time it became a member of the Union, there are all kinds of legal incidents that proceed out of that relationship.

And this Court has passed in various times in the past upon the rights of individuals, of States and of the United States, proceeding out of that relationship.

The moment before it became a member of the Union, Texas for instance, which was an independent country, the others were territories before they became members of the Union.

It had the power to regulate its own foreign affairs.

The moment it became a member of the Union, it lost that power and it recognized it.

In correspondence with the British Foreign Office, Texas said when they were asked, “What is going to happen to our treaties when you become annexed to the United States, the treaties that the Republic of Texas had with -- with the -- the British?”

And they responded and said, “Of course, we'll live up to our treaties, just as we always have in the past, up to the time we've become annexed to the United States.”

And from that time on, you will have to address yourself to the United States, because it will have charge of our foreign affairs from that date on.

Now in addition to that, citizens of the Republic of Texas had certain rights under the laws of that republic, certain provisions of their constitution and statutes that they're entitled to.

They had no rights to protection or to privileges or benefits as citizens of the United States, until they became a member of the Union.

At that moment, they lost their position with whatever privileges and limitations they had as citizens of Texas and they became automatically citizens of the United States.

Now, that this Republic of Texas as an independent country, had all kinds of rights that they had, by reason of annexation and they had certain limitations.

They recognized one as to their foreign affairs.

They couldn't conduct their foreign affairs for one second after that moment when they became a member of the Union.

They couldn't call upon the United States to defend them against Mexico, against the British or any other -- of the family of nations.

Until that moment, they had to rely upon their own forces, whatever they were.

But at that moment, they could start to call upon the United States for defense in accordance with our Constitution.

They were entitled to representation in the Congress of the United States, just the second before they weren't entitled to that at all.

Justice Hugo L. Black: May I ask you is that a proper analogy to the question right here as to what this country had solved when it absorbed Texas, the area that it absorbed is that a correct analogy?

Can you argue from analogy that it gave up certain powers of Government thereafter?

But it necessarily means that their areas shrank up in some way.

Mr. Rankin: Well, I intend to develop that, Mr. Justice Black, as to what effect this has.

What I was trying to deal at this moment with the question of this crucial time to show that Congress had used great care in fixing the time as when it became a member of the Union and that can only be actually, one instant.

Now, in dealing with boundaries, I'll try to develop in the legislative history that during the debates, the members of the Congress both in the House of the Senate, dealt with boundaries as the legal existing boundaries, the boundaries that had extended over a period of 150 years.

The constitutional boundaries that were legal because they had continued for a long period of years, the boundaries that would control the jurisdiction of causes of action, criminal cases and other cases and the venue of cases.

That was the exact language that were used in trying to determine, trying to explain to the Senate and the House just what was intended by boundaries.

Justice Potter Stewart: As in the case of Texas, the boundaries could not have existed longer than nine years did they?

That was the duration of the life of that Republic wasn't it?

Mr. Rankin: Yes, but what I was referring in the 150 years, they were dealing with the 150 years that the Union had existed in their -- in the debates.

And they were using it in the context of until the United States against California, everybody thought that they all had these boundaries for the whole 150 years.

Some of them of course, were not in the Union that long.

And these were their legal boundaries, the -- the boundaries of jurisdiction and so forth.

Now of course, with Texas it's a different situation and deals with the Republic of Texas.

They came into the Union by annexation in 1845.

They were on -- in existence as a republic insofar as the United States recognized it, for a little over nine years.

And they could only have -- as bound the independence of Mexico for that term.

Justice Potter Stewart: Whatever their boundaries were they couldn't have --

Mr. Rankin: It didn't belong before that.

Justice Potter Stewart: That's right.

Justice Felix Frankfurter: Mr. Solicitor, as I understand you to argue this matter of the meaning called of the last sentence in effect, is four leagues, is that right?

Mr. Rankin: Yes.

Justice Felix Frankfurter: And you're merely stating your position?

Mr. Rankin: Yes and I was trying --

Justice Felix Frankfurter: Now, it is perfectly clear that I understand your position, but please don't argue.

Mr. Rankin: Yes.

Justice Felix Frankfurter: That's good.

To clarify a little bit, as I understand -- is this correct that you say that although Section 4 in its entirety deals with the subject of seaward boundary?

Mr. Rankin: Yes.

Justice Felix Frankfurter: And the last shore deals specifically with seaward boundaries.

It does not relate to seaward boundaries in relation to the grant that this statute gave.

Is that your position?

Mr. Rankin: That is the position of the United States.

That the only purpose of the -- nothing shall prejudice and so forth, language was to preserve the rights of the States to claim for any purposes and make such claims in regard to boundaries beyond three miles.

Justice Felix Frankfurter: The sentence doesn't say so, but it says the structure of the -- of the -- an act and its relationship to Section 2 and grant due cause, you argued it seems to that reduction.

Mr. Rankin: Yes and along with the debates, Mr. Justice Frankfurter, because the theory that was consequently developed in the debates was that they were trying to give to the States or under States rights and that came up all the time.

They were conceived to have prior to U.S. against California, and then there was some talk about -- with impossible for the Congress or the courts or anybody to change the boundary of States after they had once entered the Union.

Of course, there's no question for what they could have fixed it, while there were territories or they could fix it as a matter of annexation or whatever they were willing to take the United States had that power as a matter of give and take between as -- any portion of territory that want to come in with the Union.

But once it was this -- developed in debates, once they entered the Union, then not -- the only the change could be made by reason of the action of the state legislature and the Congress, agreeing upon some change in their boundaries.

And so it's with that concept of States rights and the idea of giving them what they had conceived they always had.

That they were dealing with this problem and looking at it in that light, it gives a better understanding of what Congress did in fact do and what the language means.

Justice Felix Frankfurter: The sentence has been left out.

Would there be any legal difference from your point of view?

We call it the statute deals with the grants presumably it doesn't deal with things unrelated to grants, so that the sentence in your point of view is a needles sentence, is that right?

Mr. Rankin: As far as the construction of this Act is concerned.

The -- taken in the light of the debates, it is clear that they wanted to be free to say, “We've had this boundary out to the end of the Continental Shelf from the time we first entered the Union.

And we want to be able to claim that for any and all purposes of anytime.”

Justice Felix Frankfurter: Well they didn't think Section 2 just take anything away it gave.

Mr. Rankin: Oh, that's right.

Justice Felix Frankfurter: So that they didn't have to put that here in order to make sure that they didn't take anything away in relation to your subject matter not covered by the statute.

Mr. Rankin: That's correct.

All that weighed through the debates, it was stated constantly and consistently that there was no purpose to change any of the boundaries of the States.

There was an opportunity under the first part of Section 4 as I stated, “For the States to -- that did not have three mile maritime boundary, to extend that boundary out to three miles.

And if they had done it, that was confirmed.

If they had not done it, it was confirmed by this Act if they did it in the future.

But there was no -- no provision of which affirmed or confirmed or validated anything beyond three miles whatsoever.

It was --

Justice Felix Frankfurter: It was contemplated that it might.

Mr. Rankin: It -- it contemplated that they might be able to prove it.

Justice Felix Frankfurter: Yes.

Mr. Rankin: And they constantly said, “This doesn't give us anything.

We don't get anything by this enactment as far as the distance between three leagues and three miles is concerned.

If we're able to prove that we had such a boundary and that it was approved by Congress as far as Texas was concerned and Florida, they will get it.

And Senator Holland did not even indicate that Louisiana had sufficient proof, so she could ever get three leagues, but Senator Long acting on behalf of Louisiana, said we do have such claims and if we can prove that we are -- had a boundary out for three leagues, we should be able to get it.

And Senator Holland said he didn't mean to interfere or adversely affect their claim at all.

But it was stated time after time that this Act did not give anyone, anything beyond three miles, not one inch, one portion of an inch.

Justice Felix Frankfurter: Is it fair to say however, that the thought that there might be the establishable claim beyond three miles was not to a practical as to leave them (Inaudible) of all these attachments of transitory possibilities, is that necessary?

Mr. Rankin: Yes.

Justice Felix Frankfurter: We're dealing with reality and that's -- but there might be such a claim taking what are being established for the real thing.

Mr. Rankin: There's no question about it.

The -- the United States concedes that there were those in the debates in the Congress who asserted and really I have no reason to believe that they thought otherwise.

Justice Felix Frankfurter: Not merely that somebody asserted who will shut him up by putting a (Inaudible) wasn't it as vague as that?

Mr. Rankin: No, no.

That they had real grounds for their claims and that those claims could be sustained not by someone claiming in the halls of Congress, while we have a three-league boundary and that's enough.

But if those people could prove that they were legal, existing, valid claims under law and it was said time after time that if you want to know what the boundary of this States are that claim something beyond three miles, you have to find out from the courts.

That's where it will be determined.

And it was even referred to this Court, the Supreme Court of the United States.

The manager of the whole -- of the Submerged Lands Act, Senator Cordon, expressly answered the question of that kind.

He was asked, “What is going to be the boundary of these States?

Can you tell us?”

He says, “No, I can't.

It's whatever their legal, existing, valid boundary is.

And you have to find that up in the Supreme Court.”

That was answer given.

So it's -- there -- there were those in the Congress who unquestionably believed that there are valid grounds that they could prove to satisfy legal requirements that at least Texas and Florida were entitled to three leagues.

There were those on the other side of the question who raised all the points that the United States is developing here very carefully and at length and said you can't get it.

You're bound by the three-mile limitation of the national boundary of the United States and you can't extend one foot beyond.

The -- the Treaty of Guadalupe Hidalgo was merely a division between the State of Mexico and the -- the Republic of Texas.

It had nothing to do with trying to establish a three-league boundary around the Gulf.

Justice Felix Frankfurter: And what you -- what you imply or do you imply or what you call a legal question namely -- including therein, of the national boundaries of the United States, is that right?

Mr. Rankin: Oh, yes, Mr. Justice.

Justice Felix Frankfurter: The national boundary of the United States is partly -- is that our only legal question?

Is that a national policy question?

Mr. Rankin: Well, that's --

Justice Felix Frankfurter: Is that -- is that a legal question like other questions that this Court passes on?

Mr. Rankin: No, it does not.

It's --

Justice Felix Frankfurter: So that involves -- it really was sometimes when he's about to call a political question.

Mr. Rankin: Yes, Mr. Justice.

Justice Felix Frankfurter: We're really asked to pass upon a political question in this case.

Mr. Rankin: Well, we -- the United States does not ask you to pass upon the political question --

Justice Felix Frankfurter: But in order to sustain your position, a political issue is implicated.

Mr. Rankin: That's right.

And we, the United States, asked you to accept the political decision of the political branches of the Government as to that policy of three-mile boundary and then apply it to the law to determine whether any State could project itself out beyond the boundary of the United States.

Justice Felix Frankfurter: Well --

Mr. Rankin: That's the basic question.

Justice Felix Frankfurter: We -- we do accept in certain categories of cases, what the political authority tell us in the political determination for some other legal questions.

So it seems to me, here, the question always turns out what the Government's claim is the political position of the United States namely, the national boundaries of the United States concede of not as ordinary boundaries to concede of, but the pronouncement of all sorts of Secretaries of State, that the usual sobriety about this pronouncement on the acceptance or non-acceptance of a qualification of such political pronouncements.

Is that (Inaudible) various cases?

Mr. Rankin: Well, you have a few words in there that I don't want to accept [Laughs] as far as Secretaries of States are concerned, in what they've done and said.

Justice Felix Frankfurter: Well, I didn't mean to cast, and he's not about them, I simply say that Secretaries of States oftentimes the time advocate to their country.

That's all I've said.

Mr. Rankin: Well, I -- in light of that, Mr. Justice, if I would accept the fact that we do ask the Court to accept a position that has been declared for a 150 years by various Secretaries of State, up to the declaration against the claim of Communist China in 1958 for 12 miles.

Justice Felix Frankfurter: When was that?

Mr. Rankin: That was in 1958.

Justice Felix Frankfurter: Well was that before or after our representative to Geneva was ready to accept six miles?

Mr. Rankin: It was before.

Justice Felix Frankfurter: Before.

Mr. Rankin: Yes.

Justice Felix Frankfurter: So that there seems to be a very -- (Inaudible) you're going to go into this thing it makes that (Inaudible)

Mr. Rankin: Yes.

Justice Charles E. Whittaker: May I ask one question?

Mr. Rankin: Yes.

Justice Charles E. Whittaker: Who declares or is there any person or one departmental official who has the power to declare the governmental policy?

Is it limited to the Secretary of the State?

Mr. Rankin: No.

The Congress --

Justice Charles E. Whittaker: Did Congress itself, then in the passage of this Joint Resolution pertain in 1953 declare the public policy of this country on this question as respects national sovereignty in the Gulf?

Mr. Rankin: I think that the Congress would -- could be conceived to have declared it in the Submerged Lands Act, to the extent that you would find that the Congress intended that there be three leagues, if you found that anyone of the States on the Gulf, in fact legally had a three league boundary or could have had at the time it became a member of the Union.

And that's the limit that I think you could ever find in the Act.

And I think, the record is so clear that the United States' 450 years had taken the position as to Texas and every other point in our -- our sea lines, our maritime boundary, that we could not have a maritime boundary beyond three miles.

For 45 different times when world peace hang in a balance on the position that the United States took, then I think it's impossible for this Court to say that Congress ever intended that anyone -- anyone of the States could have a boundary beyond three miles if you find the history as such that it was a policy of the United States Government never to have a boundary beyond three miles.

I don't see how this Court could ever say that anyone of the States extended one foot beyond the boundary of the United States, who was still a State of the United States as far as that one-fifth -- foot was concerned.

Justice Charles E. Whittaker: Now, may it have to be a State -- have a boundary only in the subsoil and seabeds, not including overriding waters?

Mr. Rankin: Well, of course it couldn't have had that at all, prior to the Submerged Land Act because this Court held to the contrary --

Justice Charles E. Whittaker: But neither (Voice Overlap) --

Mr. Rankin: It had no rights.

Justice Charles E. Whittaker: But neither could the United States have had to outer limit of the Continental Shelf prior to the Presidential Proclamation in 1945.

Isn't that true?

Mr. Rankin: Well it could have within its maritime boundary, without question.

Justice Charles E. Whittaker: I mean to the outer edge of the Continental Shelf.

Mr. Rankin: No, it didn't assert it prior to that proclamation.

Justice Charles E. Whittaker: And it is by virtue of that proclamation as codified in this -- by Congress in this Joint Resolution 13, that the United States bases its claim to the seabeds and subsoils and minerals therein, to the outer limit of the Continental Shelf isn't it?

Mr. Rankin: That's correct, Mr. Justice.

Justice Charles E. Whittaker: And that's the basis upon which rests the claim of the States through the quitclaim of Resolution 13.

Mr. Rankin: Well, they have to rely on an entirely different action by the Congress.

They rely on the Submerged Lands Act.

Justice Charles E. Whittaker: Well I mean that's what -- that's talking about Resolution 13.

Mr. Rankin: Yes.

Justice Charles E. Whittaker: But the United States acquires its claim of a right under the Presidential Proclamation.

Mr. Rankin: Yes.

Justice Charles E. Whittaker: As codified by this Joint Resolution 13.

Mr. Rankin: Well, I would say that the proclamation created that right too, but it was ratified and approved by the Congress, but the United States had the right by the President's action.

It was not a -- it was a valid action by the President.

Justice Charles E. Whittaker: Now then what I'm in doubt about and would like to know, is did the Presidential Proclamation if it alone created this extension to the outer edge of the Continental Shelf, give to this country a territorial limit to that far at sea?

Mr. Rankin: No, it did not.

It was very carefully worded to not interfere with the rights on the sea of any power whatsoever, the proclamation was.

The -- our Continental Lands Act was exact -- was -- provided the same way and expressly by its terms, did not interfere with any rights on the sea.

And it was limited to extraterritorial claim so recognized by the Congress very carefully and also by -- it's been recognized generally by the -- the nations of the world.

That such limited claims cannot be -- can be made and are not boundary claims at all.

Justice Charles E. Whittaker: Or not -- I may misunderstand, but do I correctly or incorrectly understand that the States or at least some of them here argue that such is their basis as well, namely that they claim only in the seabeds and subsoil and not in overriding waters.

Mr. Rankin: Yes, they do.

And I don't think that claim is open to them.

We argue it carefully and at length in our brief and I'll try to tell you why I don't think it's open to you.

Justice John M. Harlan: Your basic issue here is really isn't that what would matter by a Congress limited the -- extended the grant subject to three leagues by the word boundaries.

You say it's territorial boundary and -- or at least in -- in a single sense boundary means, something like a territorial boundary would.

The States say that boundary is a fluctuating term that has something beyond the concept of an ordinary territorial boundary and the problem is to find out what Congress meant by boundary, isn't that it?

Mr. Rankin: Yes, Mr. Justice.

The only thing I don't you to say is -- is oversimplified, because I think there is an element of, “at the time of,” when it became a member of the Union.

Justice John M. Harlan: Yes we understand that.

Mr. Rankin: Yes.

Now what is -- what do they mean by boundary?

Justice Felix Frankfurter: But if there are other elements of over simplification (Inaudible) put to use --

Mr. Rankin: Well --

Justice Felix Frankfurter: -- namely -- well, they included in boundaries is impliedly that which of necessity in view of the policy of the United States, the United States limited the boundary essentially to what was the national boundary.

And that the national boundary must be -- that the state boundary must coextensive with the national boundary.

That's your basic position, isn't it?

Mr. Rankin: Yes, Mr, Justice.

I thought that was inherent in the --

Justice Felix Frankfurter: Well --

Mr. Rankin: -- question, but I --

Justice John M. Harlan: I intended it to be inherent for the questioning.

Justice Felix Frankfurter: I think it requires inspection though.

Mr. Rankin: Yes.

Justice Charles E. Whittaker: Coextensive?

You don't, as I understand it, mean that they must be coextensive --

Mr. Rankin: No.

Justice Charles E. Whittaker: -- but rather only that the States may not exceed.

Mr. Rankin: That's right.

There isn't any question in the history of our country that some of the States when the Submerged Lands Act was passed, did not have their boundaries extended beyond the coastline.

And they -- in Section 4, they were expressly given the power to make the extension to three miles, if they saw fit to do so.

But the -- one of the great problems in the case is what Congress meant by the term "boundary", there isn't any question about it.

And if you looked at the language itself, I think you would have to, without going further, you would have to concede that boundary is a technical term that has been used in the history of the nations throughout the world to mean the area that you claim control over for general jurisdictional purposes.

Justice Felix Frankfurter: So that throughout the world, they've got a federal system.

Mr. Rankin: Well, Mr. -- I can see that, Mr. Justice.

I don't think that affects what --

Justice Felix Frankfurter: Well, it may not, but it --

Mr. Rankin: The position is in regard to what the boundary is.

The -- the boundary has always been regarded as what you claim that you can keep the other fellow out of.

And that's what makes the trouble.

Now, we don't care when we say -- when some country says we're going to establish some area of 100 miles out, like Russia did.

We do in -- from their coast and also the coast of Alaska, we protested.

Why do we protest?

Because it interfered with the rights of our Navy, our ships, private ships, merchant ships, our citizens who wanted to fish and anybody else that wanted to go within that area.

We wouldn't have cared to react, if they hadn't tried to interfere with our people.

But that's what they were doing.

They said, your people stay out of a distance a 100 miles from those coasts.

And we said, we protested immediately.

We said that we would not follow any such decree or ultimatum that the three-mile was the rule of the world.

It was all we recognized for ourselves.

It's all we ever recognize for any other country and therefore, we would insist upon our people having rights within the area up to three miles.

Now that's what an issue about boundary.

And then another case, I'll show you back in 1805 the case of Vienna (ph).

It's a case decided by Lord (Inaudible).

And in that case, it was an action by the British Government and in regard to whether or not a privateer had a right to take certain goods and properties off a ship within the three-mile limit of Louisiana near the Mississippi River.

And the British High Court of Aden said, “The United States has asserted general jurisdiction for three miles.”

Congress has done that too and they've referred to the statute.

"Everybody knows," that's the language of Lord (Inaudible) and he was one of the great judges.

This isn't our court, this is the British court dealing with this problem.

Everybody knows that the marital -- maritime boundary that's recognized generally throughout the world is three miles.

This vessel was taken within the three-mile limits.

It can not be kept.

You have to turn the goods back.

Now there's a basic issue.

And it isn't just talk about what our boundary is and the importance of it.

It's a great issue of personal rights, governmental rights and what you can do within the area.

Now, just imagine for a minute what would be the effect, if we had a twelve-mile limit throughout the world.

80% of all of the lighthouses, bouie, signal for all kinds for shipping throughout the world, could not even be seen.

And many areas would only be barely open because of the principle of straights being available.

A very large circle of the oceans would be unavailable not to the great Government of the United States, but to Mr. American Citizen who wants to be able the sail his vessels.

Small craft, that's one of his privileges as a citizen of the United States or larger, merchant marine, throughout our battleships, cruisers, aircraft and airplane carriers -- aircraft carriers and even our aircraft can't go across the boundary -- the maritime boundary of another country without violating a law.

Justice Potter Stewart: So by insisting called the right of innocent passage.

Mr. Rankin: That doesn't apply to aircraft, Mr. Justice.

Justice Potter Stewart: But that I would apply that to just a small craft and my craft.

Mr. Rankin: That's right.

It would apply just to ships.

But the small craft would have the difficulty of being able to find anchorage even of twelve miles in many areas, to be able to have the opportunity to run their vessels in that area and have it with any safety.

Justice Potter Stewart: I'm afraid, why would they have to anchor anymore than to anchor now, three miles out.

They have a right of innocent passage.

Mr. Rankin: Well, the innocent passage is not countable to the right of their own government having their territorial boundary up to that point and the protections that are involved in that.

I (Voice Overlap) believe that couldn't any kind of foreign war vessels come into that area, as far as our ships were concerned.

Justice Felix Frankfurter: Mr. Solicitor General, I could -- I could agree with everything you've said as to the importance of the rights of American citizens regarding the extent of innocent passage and -- and kindred rights.

The (Inaudible) what was that case, 12 years ago (Inaudible) way beyond --

Mr. Rankin: Skiriotes.

Justice Felix Frankfurter: Skiriotes.

But before I -- before it controls the question for me in this case, I would have to be convinced that the phrase, “Boundaries of the respective States equals national boundaries during the years in question.”

I would have to be convinced that all these problems of foreign relations have any relevance as to whether the States of the United States should be allowed to exploit something as to which there is no ownership in the United States or in anybody else.

Mr. Rankin: Well, Mr. Justice, maybe I'll --

Justice Felix Frankfurter: Well, this may be -- everything you say may be respected and enforceable by the United States, if foreign relations and yet not determined whether Congress -- I suppose you admit Congress could've given the States the right of exploiting this oil, which it itself has asserted, which this Court has recognized.

So how does that internal question, how is that internal question to be resolved by worrying about all these foreign relations which nobody denies?

Mr. Rankin: Mr. Justice, in answering your question, there is no question that what if Congress had said that they shall have the right to explore these minerals out to three leagues without reference to any boundary.

Congress had that power.

Court in Alabama against Texas and Congress could have done it and we would not be here contesting the matter.

Justice Felix Frankfurter: And as to the final problems -- what this Government has or has not maintained regarding the outer boundary limits of a nation, certainly in our prior decisions in the California and Texas cases, we've given the Federal Government with this power, therefore, necessarily, from my point of view, Alabama against Texas follows.

Indeed, we'll see to that in the original California or the Texas case, California case.

So that what you say that the question is simply whether or not, you say if I understand you that the boundaries of the States the phrase, “Boundaries of the States,” merely results for this Court the question, what were the boundaries of the United States?

Is that right?

Mr. Rankin: That's right.

And you're -- we think that in applying the law, you're required to so find because we say that that position was taken by the United States for 150 years, it's an important position in the conduct of this Government.

It wasn't taken just as with regard to some area that we should not exercise general jurisdiction over.

It was because we did exercise general jurisdiction.

Justice Felix Frankfurter: But -- but if this -- but if Congress could give exploring and exploiting powers to the States which it itself enjoys, I do not see how the argument to that you -- that there is raised -- there are raised all these questions of relationships between American citizens in other countries or the threat of other countries is appearing, well, that's come into play.

Mr. Rankin: Well, the question is what boundary means.

And if the Congress had said, “Without regard to boundary,” I think that's inherent in your question.

Without regard to boundary, the State shall be able to explore out to three leagues.

Justice Felix Frankfurter: No.

Mr. Rankin: Then that will be case.

Justice Felix Frankfurter: No, because you have agreed that Congress thought it was a substantial question -- at least not a frivolous or fantastic question which it wrote into the statute that perhaps some States can establish, that they have boundaries in the sea themselves, in this country, not other countries.

Mr. Rankin: Well, I would concede --

Justice Felix Frankfurter: Well, that is beyond three miles.

Mr. Rankin: But they thought it was substantial enough so that they would give them an opportunity to prove it according to law.

And I think Congress does that manifold number of times that this Court is familiar with, in the Court of Claims.

Time after time, Congress doesn't see fit to resolve a controversy in regard to States or individuals in this country.

But they say you claim you have certain rights, we'll allow the action to be brought in the Court of Claims.

You prove it up.

If you can establish those rights under law, you'll get a judgment.

And we'll appropriate the money to pay it, but by saying that, they don't say we find that you've got any such right.

Justice Felix Frankfurter: I'm not suggesting that Congress found it.

I'm not suggesting that.

That's why we're here.

I am suggesting that the consequences of being able to find it can't so unthinkable and so horrendous that your argument has made it out because of the consequences that you picture.

Mr. Rankin: Well, this very thing about the -- the maritime boundary in the United States being three miles was raised during the debates as an element that would preclude the establishment of any such claims.

It was raised in the hearings both by the State Department representative and other people who testified.

The case -- the cases of this Court were put in the record.

The minority reports of -- of the Committee said in so many words that there was nothing to the -- either the Texas claim or the Florida claim.

Now, I don't think that precludes them.

Congress didn't preclude them because of that.

But it did say they had to prove it.

Justice Felix Frankfurter: Well I -- I may reach your conclusion and I can assure you that my mind is as clear as this at the moment under the subject of this statute.

Just as clear in this statute, if I can say so.

[Laughs]

But I wouldn't reach it because I would see horrendous, dangerous consequences in our international relations.

I would religiously cross on the basis of relevant considerations of statutory construction, Congress' has so defined boundaries --

Mr. Rankin: Well, I think --

Justice Felix Frankfurter: -- not because I think terrible consequences would follow or a whole cause of international relationship would be embarrassed in -- to make me find it.

Mr. Rankin: Well, Mr. Justice, I think that the effect of embarrassment -- international relations is an element that you and the rest of the Court would properly take into account, under your decisions in the past in considering the decision of a political question, like the boundary -- maritime boundary of the United States.

The -- what I was trying to deal with in regard to boundary was that it is not something that can be dealt with lightly is what I was meaning as far as the interest of our people and our country are concerned.

And that the assertion of a maritime boundary by the United States was not done as a mere whim or by starting with Jefferson and then on down to years by some very great men, who were the Secretaries of State and under some great Presidents throughout the years and at times when we were pretty little fellows to be standing up against Britain and France and -- and Spain and other great powers that we were saying now, you can't have more than three miles.

We don't allow it.

Don't take it ourselves and we don't allow it to anybody else.

I'm not -- I'm just trying to show that it's not any idle thing that our Government was doing.

And I'm trying also I think that when you look at the word, boundary, you have to apply to it, what's ordinarily meant by boundary.

Now, if I would try to say this boundary in the State of Nebraska is -- this Court comes to in the State of Kansas and then I would try to say, now, we -- we go over there in hot pursuit.And we have a right to go over there and -- and check different things with Kansas, but -- and so that makes up the boundary clear out there a part of Kansas.You just laughed me out of Court.

But -- and that's what I'm saying -- this laws that -- it didn't say boundary that you might -- Congress might say someday that you could go out and inspect vessels as a part of the smuggling that is recognized as the exception and nullified maritime boundary by the nations of the world, when we've done it, we've said to the other nations we're not trying to encroach upon your rights at all.

A maritime boundary is the same thing as though it was so much land as far as though, a boundary of a country is concerned.

Justice John M. Harlan: What your saying is where the boundary is inappropriate to describe anything short of a maritime boundary.

Mr. Rankin: That's right.

Justice John M. Harlan: And yet in the Treaty of Guadalupe Hidalgo where the United States was claiming rights whether however you might characterize them, of up to three leagues, something short of this maritime boundary as you -- as you would say, are they used as a descriptive of those rights whatever they were at the term, boundary, didn't they?

Mr. Rankin: Yes, but they said the boundary between our countries --

Justice John M. Harlan: And --

Mr. Rankin: -- shall commence at a point three leagues in the Gulf opposite the mouth of the Rio Grande.

But in the same year that the treaty was made, Great Britain said to the United States, “Do you mean that that changes the boundary?

Are you claiming beyond three miles?”

And the United said -- States said, “No, we are not.

We did not in any way --

Justice John M. Harlan: Yes.

Mr. Rankin: -- interfere with your rights.”

Justice John M. Harlan: All I'm suggesting is that that very circumstance indicates the boundary does not necessarily have the inflexible content, which is at the bottom of your case.

Mr. Rankin: Well I think that -- that very action of the United States shows it does.

Years would unite the people who have made the treaty.

Now, I make a contract with Mr. X and in the same year I say to you -- to another party that this contract means so and so and the other party who's the other contracting party like Mexico, said to the British exactly the same thing.

This doesn't mean that it's anything beyond three -- three-mile boundary at all.

This doesn't interfere with your rights.

It didn't at all like a boundary.

Then you'd say to me, “You made your contract.

You interpret it.”

You have said this isn't any kind of a boundary.

You say it doesn't interfere with other people's rights.

That's what it means.

It seems to me that's -- that's ordinary contract law.

Now, that's what the two contracting parties said about this Guadalupe Hidalgo Treaty within the same year upon inquiry by a foreign power that had a right to inquire because it was introduced in the -- on which the suit affect it.

Justice John M. Harlan: That's exactly what I'm suggesting.And not to look at the context in which the word, boundary, is used before you can describe what the legal effect, what the -- what -- what a legal boundary means.

Mr. Rankin: Well, they now proceed through the debates.

Justice Charles E. Whittaker: Mr. Solicitor General did you mean -- may I ask this question.

Are you in dispute with any your adversaries here over the meaning of the word, boundaries as used in these cases?

Mr. Rankin: Oh, yes.

Where they -- they contend that the Action of the United States in inserting control over the area beyond three miles for the Continental Shelf is some kind of a boundary.

And that they have the right to take advantage of it.

Justice Charles E. Whittaker: And now, you're talking about where it is as a line.

Are you in dispute over the meaning of the word?

Mr. Rankin: Well, I think that -- that we are Mr. Justice.

I think --

Justice Charles E. Whittaker: You do?

Mr. Rankin: -- think that they say that by implication at least, they say that when you -- when the United States has a provision of its laws that permits it to go out four leagues into the Gulf in regard to smuggling, that that establishes that kind of -- that establishes the boundary, that they can take advantage of under this law.

And the United States' position historically, time after time, has been with that, isn't the boundary at all.

That is a matter of accommodation between the nations involved and is only done as to ships coming into our ports.

But they still assert that that makes some kind of a boundary for them to try to take advantage of under this law.

I wouldn't want to state otherwise.

Justice Charles E. Whittaker: If it may assumed -- one more question, please.

Arguendo, that it has consistently been the policy of our country to maintain only and to permit others to maintain only, a marginal belt of three miles, until at least, Congress passed this Act in 1953.

And assume that this is a political question still this Court would to ascertain the fact would it not?

Mr. Rankin: Yes, I would say in this regard that, if the Secretary of State with this Court recognized has the power to pass on the political question, would say to this Court that our -- our maritime boundary is one mile and has been for a 150 years, this Court wouldn't have to accept that, because it would be a misrepresentation of fact.

Justice Charles E. Whittaker: But having ascertained what is the national maritime boundary, as maintained by the State over the years, the Court cannot touch it, it being a political question, isn't that true?

Mr. Rankin: That's true, in accordance to your cases.

Justice Charles E. Whittaker: Yes.

Now then, but if in 1953 Congress changed it as respects these States in the Gulf to an extent of three miles and so much further as the States can show, was within their boundaries at the time they were admitted to the Union, wouldn't this Court have the right to declare that fact?

Mr. Rankin: Yes, if -- but we put one thing more in that, Mr. Justice Whittaker.

We say that if at the time it became a member of the Union, the State would say our boundary and the only State who could apply to would be Texas, because the others were territories.

They're creatures of the United States and they couldn't possibly by definition, have an inch beyond the boundary of the United States.

Now, they're our right.

Under any kind of -- can apply law to the question, there are.

But as to Texas, it's an independent republic that we recognize.

So then, if Texas had three leagues, which we question that they -- we say they didn't even have that anyway, under the law, under international law and everything else.

They hadn't established it so far.

But assuming for a moment for argument that they had, we say at the moment they became a part of the United States, they were reduced to what the policy, the foreign policy of the United States was.

Justice Charles E. Whittaker: I believe you have both retained the past sentence.

Mr. Rankin: That's right.

Well, I think it's at the moment.

You see, because all of the incidents of the statehood proceed from that moment.

Justice Charles E. Whittaker: At the time such case became a number.

Mr. Rankin: Yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: Let's see -- let's look to past tense because of course, that's happened to all of them.

You wouldn't say it becomes -- so you have to use some -- a past tense to describe an event that's already occurred.

But you see, they're trying to take the theory, if you -- if you looked at the debates, they're trying to take the idea that at the moment they came under the Union, they had something or they didn't have something.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: Yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: That's the -- that's the claim of some of the States.

Justice Charles E. Whittaker: And your construction is it means just actually, isn't that right?

Mr. Rankin: Well --

Justice Charles E. Whittaker: It is -- nobody's writing the books.

Mr. Rankin: Well, I think the State has -- I think that this Court had to pass on the question and I was here suing back in 1845 and said that at the moment Texas -- the paper was signed by the President approving the act of annexation, the Joint Resolution and I was suing upon my rights.

As a citizen of the United States, I think you would say at that moment I received certain rights, it didn't happen the moment after, it happened the moment that law became in effect.

So I think that that's when the Union -- it becomes a member of the Union.

It doesn't become a member of the Union the moment after it became a member.

It becomes a -- at the moment it became.

That's the moment when all of these rights changed.

Now, the Republic of Texas couldn't have -- say its Congress acted one moment after it had passed the law or -- or at the very moment that the law was signed.

The -- the pen was just lifted off the paper.

Would that Act be found valid by this Court?

It seems to me you'd say, no.

The -- all of these legal relationships have to date from the moment it happens.

Justice John M. Harlan: Dating back to a time wherein -- and I -- I'm wrong in thinking that the boundary line is not defined in the statute?

Mr. Rankin: Well, if you mean [Laughs] -- if you mean all the things we're arguing about, I'm sure it's not --

Justice John M. Harlan: Supposing -- supposing Congress had said in the statute, “Boundary line as herein used, means historical boundary which would have given a State the right at the time it came into the Union to exploit submerged lands what would your position have been then?

Mr. Rankin: Well, if that means that they have -- would have had to ascertain, what is that to include --

Justice John M. Harlan: And?

Mr. Rankin: Nobody did at that time --

Justice John M. Harlan: I know --

Mr. Rankin: -- and this Court said --

Justice John M. Harlan: -- but supposing Congress had said that, would you be in Court?

Mr. Rankin: I'm a little unclear about your language, Mr. Justice, but if it -- if it clearly said that they should have the right to explore out the three leagues without reference to boundaries --

Justice John M. Harlan: No --

Mr. Rankin: -- I wouldn't be here at all.

Justice John M. Harlan: -- they'll define boundary -- they define boundary in the hypothetical that I'm putting in and not in terms of the maritime boundary is your arguing for, but use the word boundary as it's used here and then in another section say, boundary means the kind of a boundary that would have given a State at the time he entered the Union the right to exploit submerged lands.

Mr. Rankin: Well, you're giving me a question that's pretty difficult because you're --

Justice John M. Harlan: But I think this is --

Mr. Rankin: This Court's --

Justice John M. Harlan: -- the question in this case.

Mr. Rankin: Well, this Court has said that they couldn't have such a right.

They had no such a right, never had.

How can I say that --

Justice John M. Harlan: But the Congress did something to those cases when it at least extended the State's right to exploit (Inaudible) the decisions of the three miles.

Mr. Rankin: Yes sir.

It made a great --

Justice John M. Harlan: So it overruled those cases at least to that extent, did he not?

Mr. Rankin: Well, it never -- it -- it clearly said, it never intended to overrule the cases.

It was creating rights that never existed.

Justice John M. Harlan: Well --

Mr. Rankin: And this Court says --

Justice John M. Harlan: -- put it that way.

Yes.

All right.

Mr. Rankin: I don't mean to be --

Justice John M. Harlan: Yes.

I understand.

Mr. Rankin: -- as to technical, but I --

Justice John M. Harlan: (Voice Overlap) --

Mr. Rankin: And therefore, it was giving them, but it -- it defined them.

Justice John M. Harlan: (Voice Overlap) --

Mr. Rankin: Now, it seems to me, if I want to grant somebody half a mile lot and I described it, this Court shouldn't be saying, I granted my whole lot.

It should be following what I -- my grant was.

And you also have the propositions firmly established in this Court that you construe all grants by the United States -- in favor of the United States and against the grantee.

They're bound by that too.

Now, what do -- what was the intention of Congress?

When it used the word, boundary, was it going to use some freak idea that's not commonly used by the Congress?

Congress has dealt with boundaries for 150 years.

Often than not, I don't the first time that -- but I know early they had to deal with them and what was affected.

When it said boundary, did it mean something other than people do generally?

Did it mean that you could go out to the outer Continental Shelf or that if you just happen to let it -- the United States go out on occasion and didn't try to exclude anybody from the area that that was the boundary?

I can't conceive that this Court would read any such thought into Congress' acts.

Congress was -- must have been dealing with boundary and I'm not -- I haven't gotten to the legislative debates that will clearly show what was intended, but without that, boundary must be the -- I think it's only fair that you assume, Congress of the United States was dealing as a -- as deliberative body that's trying to fairly accomplish a certain job.

And it's trying to deal with words like people ordinarily deal with, not with freak attribution or constructions or unusual conclusions or ideas that aren't ordinarily in them.

The issue --

Justice Felix Frankfurter: May I say -- may I say, Mr. Solicitor that a little earlier, you put your case in great brevity.

Namely, buy you're now arguing -- namely that boundary in this statute, by virtue of the subject matter of the statute and by virtue of the legislative history to which you have coming, boundaries, is a term of art defined by the position taken by the political branch of the Government as meaning the boundaries of the national Government.

Is that your position?

Mr. Rankin: Well, I have to add just a little to that, Mr. Justice Frankfurter.

And that -- I think that the term, boundary is a word of art, I agree with that.

I --

Justice Felix Frankfurter: I view it in the statute.

Mr. Rankin: I think the maritime boundary by law is imposed down upon it.

And the State can have a boundary less than the maritime boundary, as some of them did only assert a boundary out of the coast.

But they never can have one beyond the boundaries of the United States.

Justice Felix Frankfurter: We're not calling about less in this case, are we?

Mr. Rankin: No, but I just want to clarify the point, that -- but I -- the factual situation.

Justice Hugo L. Black: Has the 1848 Treaty with Mexico been superseded by later treaties?

Mr. Rankin: No.

The Treaty of Guadalupe Hidalgo, I think is the one that you're --

Justice Hugo L. Black: Still in effect?

Mr. Rankin: Yes.

Justice Hugo L. Black: Well, if the boundary lines between us and Mexico is nine miles from our coast.

Is the boundary line of Mexico -- does it come within nine miles of our coast, if this language is the boundary line between the two republics?

Mr. Rankin: Yes.

Now it's a construction of Texas and the other defendant States.

But that meant that the boundaries should run around the coast for three leagues.

Justice Hugo L. Black: I understand that, but there's a goods deal more of the Gulf of Mexico.

And this says that the boundary line between the two republics so it meant from the Gulf of Mexico, three leagues from land.

I presume if our boundary goes to three leagues was the accept boundary that many have said.

But that boundary line comes to within three leagues does it not?

Mr. Rankin: The United States had -- has answered that question by the Government by saying that that was the commencement of the point -- a division between the countries and did not mean any boundary around a coast or gulf.

Mexico said exactly the same thing, the same year, both of them the same year to the --

Justice Hugo L. Black: They what?

Mr. Rankin: Both of them told the British --

Justice Hugo L. Black: And I -- I read that what the (Inaudible)

Mr. Rankin: Yes.

Justice Hugo L. Black: But what I'm getting at is, if that is the boundary line between the two republics, it means I suppose to give it its actual meaning that Mexico owns the Gulf all the way to nine miles with our shores and we own it nine miles outward -- seaward.

Mr. Rankin: We have denied that.

The Government denied it, the same time Mexico denied it.

Justice Hugo L. Black: Well did you deny it on the ground that it didn't -- the boundary line was no good as to Mexico, but was good as to this country?

Mr. Rankin: No.

The position was that this was a relationship between these two countries in establishing the boundary between the two countries and that it was not an assertion by either country that they had any control against the rest of the world or against each other of three leagues in the Gulf.

Justice Hugo L. Black: Will it be equally binding on both, if it's binding on one was it not?

Mr. Rankin: Yes.

Justice Hugo L. Black: Has a boundary line?

Mr. Rankin: Yes.

But all of that time Mexico had a boundary line by a statute for three miles.

They never asserted any nine-mile boundary until 1935, 87 years later.

Justice Hugo L. Black: But if this is the boundary line, what I'm saying is, I don't it has an effect on it.

But if the boundary line between the two republics is nine miles from our shore (Inaudible) then the boundary line of Mexico was at the same time up to that value, was it not, if you -- if you want to construe that as being the boundary line between two republics.

Mr. Rankin: Well as a boundary line it was construed by our State Department as being from that point and not to include any maritime boundary running around the coast or gulf, either way.

And that was -- construction was made during the same year.

Justice Potter Stewart: It would at least be a line -- imaginary line from the coast out to that point.

Mr. Rankin: That's right.

No question about that.

But --

Justice Potter Stewart: (Inaudible) a number of (Inaudible)

Mr. Rankin: That's right.

Justice Charles E. Whittaker: (Inaudible) in boundaries good necessarily being nothing (Inaudible)

Mr. Rankin: Well, that could be the case.

It was asserted by the United States constantly that it didn't interfere with anybody else's rights.

It wasn't any claims for a general jurisdiction for the area.

And it was so asserted by Mexico as I said and when Mexico did assert a nine-mile boundary, 87 years later, the United States protested it vigorously.

Justice Hugo L. Black: But whatever it meant, it meant the same for both countries, doesn't it?

Mr. Rankin: It would have to.

Both countries --

Justice Hugo L. Black: And that was the boundary line between the two republics, whatever boundary line meant.

Mr. Rankin: Now, with -- with regard to what boundary was to mean according to -- assuming that you -- it isn't clear from the language of the Act and you go to the debates.

Then, we have the language of the drafter of bills under Holland and the other Senators and Congressmen in which they repeatedly deal with what boundary is.

And Senator Holland said that's -- boundary is the area of general jurisdiction.

The -- in 1794, the United States Congress asserted jurisdiction for a -- for distance of three miles.

And that Act has been on enforced on our books at all times, except one year when it was dropped by inadvertence.

They also said that they were -- the boundary was the general jurisdiction for legal cases, the venue of cases and other actions.

That it was the historical boundary because it was the legal boundary.

The legal boundary that had existed for a period years, it was the lands within their territorial waters and that -- that was what they were trying to restore, that they were the legal boundaries of the States that had for 150 years.

Now, all of that language at the time they were trying to get this Act passed in the Congress, is wholly inconsistent with all of the other claims now, of some other kind of a boundary.

That a boundary set for the purposes of smuggling, inspection of ships was sufficient.

That isn't a general jurisdiction boundary at all.

The United States has never asserted general jurisdiction, jurisdiction of cases over in such boundary.

Our jurisdiction in cases we've asserted for the three miles.

So throughout our history, they have described the boundary they were talking about exactly in the manner you describe the maritime boundary of a country.

That's exactly what would be involved in the maritime boundary of the United States.

And furthermore, they raised these very questions about whether any -- any State could have a boundary that extended beyond the boundary of the United States.

That was raised in the debate.

Whether or not, the mere transmittal of a copy of the statute of Texas of 1836, asserting three leagues, could ever be an establishment of a boundary, but didn't have any legal effect.

It wasn't enough.

That was raised in the debate.

So that the -- the basic issues and also the fact of the effect of a maritime boundary of the United States and the claims of the United States through limitation of three miles, the effect that would have on any other State and whether or not, a State that had, like Texas as a republic, a serving of a statute of three-league boundary, came into the Union -- did it lose that right, if they -- and had to claim prior to that time, by coming into the Union didn't it have to be subject to the United States?

Now here, Texas is and she tells Britain at this very time that it seems to me a historical event of the greatest importance.

Britain asked about her treaties and the effect of it.

What force and effect they might have after she is annexed?

And she says, “I can't control our foreign policy after we're annexed to the United States.

You have to ask the United States from the moment we become annexed, about the foreign policy.”

Would it be possible, say we had a conflict with -- with Texas foreign policy and Texas had a certain policy toward Mexico just a moment before she entered the Union.

And that was -- and our policy toward Mexico was peaceful and hers was some conflict.

Wouldn't it be accepted immediately that she was blanketed under our foreign policy, the moment she entered the Union?

Doesn't that have to proceed as a matter of -- of legal interest and application?

The same is true with all of our foreign policies.

The same is true with our Constitution, our laws.

She would have to recognize and has been applied as to other instances over the years.

That automatically, the United States doesn't have to go around to every State when it's taken into the Union or any other territory and say now, “From now on, you -- you must remember, you have to follow the foreign policy of the United States.

You can't continue to have your own.

Your policy doesn't continue right on and the other 48 States don't have to live by your foreign policy, too.

You only got one.”

That's by definition in the Constitution.

Justice Charles E. Whittaker: (Inaudible) everything about this concludes (Inaudible)

Mr. Rankin: Not at all.

Justice Charles E. Whittaker: And how do you try to (Inaudible) that the United States have enough -- didn't anything (Inaudible) beyond three miles (Inaudible)

Mr. Rankin: Well that's recognized as an extraterritorial claim by the Congress, by President Truman, when he issued the proclamation, by the other nations in the world and it's recognized the claim that the legitimate would be made without any encroachment or incursion upon the other nations of the world.

Justice Charles E. Whittaker: Have to (Inaudible)

Mr. Rankin: Well, I think it's a little more than that.

I think that there's recognized -- if -- I -- I want to try to make the distinction.

If we would, for instance, try to assert the right to the Continental Shelf on the other side of the Caribbean, close to other countries.

I think that the other countries of the world, the nations of the world would feel that we have no right to make any extraterritorial claim to exploit the minerals there.

That is they associate the legitimacy of such an extraterritorial claim as being related to the fact that that Continental Shelf is adjacent to our country.

So I don't know whether I'm answering the questions there.

I wanted to clarify that you couldn't just -- we couldn't just reach out and say the British Isles' Continental Shelf belongs to us.

And the other nations wouldn't recognize that, of course.

Justice Charles E. Whittaker: As I understand you -- you (Inaudible) define that President Proclamation further rights to the Continental Shelf (Inaudible)

Mr. Rankin: I'd say it for two reasons.

First, that it's recognized in two -- or three -- three reasons.

First, it's recognized by the nations of the world, international law.

Say it doesn't.

Second, the President very carefully said it did.

Third, the Congress very carefully said it didn't.

So that, I think, those are -- or as political questions, they're controlling on the Court, if you find that's true.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: Well, I would say that if the Congress had clearly indicated that by a boundary, it meant that they should have the rights to three leagues, regardless of whatever the maritime boundary the United States was, then commerce could have done that.

Justice Charles E. Whittaker: But it comes within (Inaudible)

Mr. Rankin: Yes.

Justice Charles E. Whittaker: And so much more, must be easily used as you construe in the Supreme Court of the United States (Inaudible) where was then the boundaries of the States at the time (Inaudible)

Mr. Rankin: That's right.

And we're trying to say, the United States' position is that at the time meant, when it got in the door.

That it -- that it had all these incidence of statehood and it lost its position as an independent power, that when it became a State of the Union, it could only have a boundary that was coextensive with the boundary of the United States.

Justice Charles E. Whittaker: Does it claim more (Inaudible)

You don't claim more than the amount but as -- as a (Inaudible)

Now, did the States claim more?

Mr. Rankin: Well, we say that the boundary has to be the territorial boundary.

Now, if you would find that Congress really didn't mean what they said it meant, when the debates -- what boundary ordinarily means, that there was some idea or intention to have an unusual boundary and change the boundary of the United States some way, so that -- then you would find that the three mile boundary of the United States was not intended to preclude now, but you still have the problem.

That Congress couldn't change it all, the boundary as of that time, so if you would interpret the law, as we think the only way it could be interpreted, that Congress meant that it was whatever boundary they had at that time that controls.

The only boundary they could possibly have was within the United States.

And that the boundary of the United States was three miles and therefore, theirs had to be three miles.

Then, even though Congress would want to do something else it would have to say it differently.

It couldn't say it the way it has and make that possible because it can't change what the facts were back in 1845, when Texas came in the Union.

And you would be finding what the league -- what the law is.

And if they only had a boundary out -- the United States had a boundary of three miles, ab initio, it's got to be that no State can have a boundary on each beyond that or a fraction.

Justice Charles E. Whittaker: (Inaudible) the boundary of both, if you have just one (Inaudible) but the United States has some (Inaudible) to be taken?

Mr. Rankin: No question of what they could.

Justice Charles E. Whittaker: And only this (Inaudible)

Mr. Rankin: No.

They didn't intend to.

They didn't do it by definition or terms and it can't -- they used a measure deliberately.

Now, in the debates, you -- if you examine and I'm going to call your attention to -- if -- during the balance of my argument.

It was very clear.

They said time after time the manager of the bill, the various proponents are active for it.

We're not adding anything to what these people have.

Not one thing.

They either had it or they don't.

That was the whole concept of the bill.

Now, the political aspect of this matter was quite different.

If you examine the position of the legislators and you have them saying, “We don't care what your rights were back at that time.

We're going to give these Gulf States something we don't give to other 45 -- 43 States.”

None of them wanted any part of that, as far as the bulk of the Congress is concerned.

The only thing they were willing to consider was that if they had something under law, they were willing to give them a chance to get it, up to three -- three leagues, which would be a special provision for these Gulf States represent invaluable in its worth.

And it would be taken from the United States.

No question, but at that moment, this Court had held that they're all going to the United States.

So, I think you have to take that into consideration in trying to interpret what Congress did, because it's in -- and they said it, a good many times, but it -- it's quite a difference between Congress saying, “Texas claims are fraudulent.

There's nothing to them.

Nevertheless, we'll give them all these wealth.

Louisiana's claims are fraudulent.

There's nothing to them, still we'll give them."

They didn't say that.

They said, “If they can prove it, we are not giving them anything in this law beyond three miles, except the chance to prove it.

But --

Justice Charles E. Whittaker: You argued they can.

Mr. Rankin: Oh, yes.

But they've got to prove it according to this.

Justice Charles E. Whittaker: First?

Mr. Rankin: They have to prove it according to the definitions that Congress laid down.

They're not -- they didn't say the boundary that is asserted under the Outer Continental Shelf Lands Act, nothing like that.

They asserted that to the United States.

Justice Charles E. Whittaker: Certainly.

It gave you three miles and so much more.

How (Inaudible) improved, first you have to (Inaudible)

Mr. Rankin: Yes.

Justice Charles E. Whittaker: So or they did not to be grant anything more than we must, a fit for the formula on this issue.

They didn't -- the States couldn't by proving your (Inaudible)

Mr. Rankin: That's right.

Now, with the State of Texas as an example, if they claimed three leagues and there -- no question what they did by that statute in 1836.

At all times from 1793 down to that date and all times beyond that date to the present time, the United States said to most of the great powers of the world, “None of you can claim beyond three miles.

We won't recognize it.”

Now, if Texas was going to be given three leagues that meant as long as Texas was an independent power that Texas had three leagues against every citizen of the United States -- against the Government of the United States in all of its activities, both so far as the defense of the country was concerned and otherwise, against every citizen so far as fishing was concerned and every other right.

Now, of course, the matter of submerged lands was never mentioned back in those days, it never came up, but how in the world can you say that this country when it was asserting that position at the risk of war, as this described in detail, and the communications by Secretaries of States over the years had any intention to recognize a three-league claim on the part of the -- a little Republic of Texas, when it would risk war in asserting that no one of the great powers could have such a claim.

And she wouldn't assert it for herself.

Justice Hugo L. Black: Did you say little republic?

[Laughter]

Mr. Rankin: Maybe I will strike that out.

[Laughter]

Justice John M. Harlan: Could I ask you one question?

What does it mean -- what are the circumstances that show the kind of the present complaint of territorial rights (Inaudible) United States thought that it was granting some kind of a new principle of international law to the search in the right claim?

Mr. Rankin: No, the -- the history of -- was before the Committee clearly demonstrates that the Government thought it was not asserting --

Justice John M. Harlan: It was not.

Mr. Rankin: -- an unusual claim.

Justice John M. Harlan: And what --

Mr. Rankin: -- and it -- the testimony of the State Department was that this was clearly within international law and was next to territorial claim.

It would not interfere with other nations or be protested.

Justice John M. Harlan: And would it be a fair assumption that if that claim had been asserted in 1848, that the United States could have done so, consistently with its three-mile maritime boundary policy?

Mr. Rankin: That's so speculative.

Justice John M. Harlan: I know it's speculative.

That's a reason I asked you the first question.

In other words, you say that at the time the assertion was made in 1945, for the first time, the United States rightly or wrongly assumed that it was not doing anything, but what international law -- it could have done under international so-called, at any time during (Inaudible)

Mr. Rankin: The reason I have difficulty with the second question, Mr. Justice, is that we have had times when we protested against the inspection of vessels.

For instance, with -- with Russia when they asserted the right to inspect vessels out 12 miles was really related to smuggling or at least that's what they claim.

We did protest against it, saying they were limited to three miles.

They wound up claiming the whole 12 miles as general jurisdiction and a right and then apparently our Government thought that might be the outcome if we didn't.

So that -- and then we had an assertion by Mexico of 20 kilometers at one time and we protested that.

And then they said, “Well, that same thing you're doing four leagues.”

And he said, “Well, we don't do it that way.

We only inspect vessels that are coming to our ports and it's a matter of convenience.”

And so it isn't the kind of thing you're doing while you're just stopping them and trying to see what you can find in interfering with the passage when you know the vessel isn't coming.

So, if it was within what we clearly at that time -- if the thinking was developed at that time sufficiently, so that it was like smuggling, I think there would have been no difficulty whatsoever.

If it was merely a device to try to get some control over other people's shipping and so forth and so considered what it was, in fact, it wasn't in fact -- if it was so considered at that time, I suppose there would have been a protest.

I think that's the best --

Justice John M. Harlan: But at least as of 1945, do you think it's a fair statement that the United States in issuing that proclamation when the extraterritorial rights did not conceive it was announcing -- asserting some new principle of international rights.

Mr. Rankin: No one -- as I understand the testimony, there was no claim to the contrary.

Justice Potter Stewart: Well, it is too that the whole concept of the rights to the subsoil under the sea, a substantial distance from the shore is a relatively new concept, isn't it?

Mr. Rankin: That's right.

This Court said that in U.S. against California in --

Justice Potter Stewart: And in 1848, I suppose nobody knows for that except --

Mr. Rankin: No.

Justice Potter Stewart: -- perhaps for the purpose of --

Justice Felix Frankfurter: There was many oil.

Justice Potter Stewart: -- for fishing and --[Laughter] -- and the kind of fish that stayed put on the bottom of the ocean, oysters and things.

Mr. Rankin: I'd like to reserve the rest of my time.

Print this transcript Transcript: 

Argument of Rankin

Mr. Rankin: Mr. Justice Black, may it please the Court.

I'd like to correct the last statement I made in answer to Mr. Justice Harlan in regard to this proclamation of President Truman in 1945.

I was advised by the State Department during the luncheon period that that was the first time that question had come up in 1945.

There was never any protest and it was recognized as a legal right during the Conference on the Sea of United Nations and as to generally recognize by the Nations, but as to the question of when it started, that's the first time.

Justice Hugo L. Black: Mr. Hart.

Argument of James P. Hart

Mr. James P. Hart: Mr. Justice Black, may it please the Court.

In opening the argument for the Gulf States, I would like to state first our general position.

We submit that the Submerged Lands Act transfers property rights to all of the Gulf Coast States to three leagues from their coast.

The Government seeks to nullify what we contend is two thirds of that grant by implying a limitation to one league or three marine miles.

We say that the grant in the Submerged Lands Act is not subject to such an implied limitation that the measure of a transfer in the Act is the State's historic boundaries as defined in that Act and that questions of foreign policy and international law are irrelevant.

In the alternative, we say that if international law particularly as interpreted by the United States in its foreign policy, at the relevant times, is to be considered that the boundaries of the States at the time they became members of the Union or as approved by Congress, were valid boundaries.

With the permission of the Court, I would like to restrict my argument to our primary contention which is that the measure of the grant in the Submerged Lands Act is the historic boundaries of the States.

And that matters of foreign policy and international law by which the Government contends, a national boundary at three miles was fixed or beside the point.

Mr. Dougherty and Attorney General Gremillion will argue the application of foreign policy and international law to the boundaries of the States in the Gulf of Mexico.

In presenting my argument that the Submerged Lands Act under which the States claim the rights that are involved in this case, measures the grant by the historic boundaries of the States as defined in the statute.

I would first like to direct my argument to the terms of the Act itself.

The Act is copied a little more fully or portions of it on pages 333 and following, of the Government's main brief and I would like to refer to those sections as set out there.

The Title II of the Act is copied on page 333 and the point I would like to make in that connection is that the title shows that it is an Act to confer property rights on the States in the submerged lands, that is beneath navigable waters, within state boundaries and it confirms the jurisdiction and control of the United States, seaward of state boundaries.

The granting clause in the Act is Section 3 which is copied on page 335 of the Government's brief.

That section begins by saying that Congress finds it to be and declares it to be in the public interest that title to an ownership of lands beneath navigable waters within the boundaries of the respective States and the national resources in such lands and waters are confirmed, transferred and established to the respective States.

The Court will note that the transfer is made on the basis of lands beneath navigable waters within the boundaries of the respective States.

And those terms are defined in Section 2 which is copied on page 334 of the Government's brief.

Lands beneath navigable waters are defined in that -- in subparagraph (2) of paragraph (a) of Section 2, to mean, “Lands covered by tidal waters extending seaward to a line three geographic miles distant from the coastline of each such State.”

I pause there to remark that the outer limit is a line three geographical miles primarily as stated in that Section and, and this is an additional grant, to another line.

“That is the boundary line of each such State where in any case, such boundary as it existed at the time the State became a member of the Union.”

And I might say the word is not as it was created or as that became, but as it existed.

“At the time the State became a member of the Union, or as heretofore approved by Congress, extends seaward or into the Gulf of Mexico beyond three geographical miles.”

The term “boundaries” is defined in paragraph (d) of Section 2 in three ways.

It says that boundaries mean the seaward boundaries, all the boundaries in the Gulf of Mexico or in the Great Lakes, first, as they existed at the time such State became a member of the Union, or second, as heretofore approved by Congress, or third, as extended or confirmed pursuant to Section 4 hereof.

Now, I'd like to pause there to say that I would like to discuss Section 4 on the moment, but at -- at this time, I want point out that the boundaries defined or -- or boundaries, historic boundaries that is, boundaries which are defined by historical facts as to what boundaries existed at the time the State became a member of the Union or as approved by Congress before the passage of the Submerged Lands Act.

Justice Charles E. Whittaker: I noticed that you used -- had used several times the word, “historical boundaries.”

Mr. James P. Hart: Yes, sir.

Justice Charles E. Whittaker: You didn't claim that used in the Act?

Mr. James P. Hart: No, sir.

We -- it is not used in the Act.

It is a term that was used by the President in urging the passage of the legislation and was used hundreds of times in the debates and in the Committee hearings --

Justice Charles E. Whittaker: Yes.

Mr. James P. Hart: -- as a sort of short-hand rendition of the definition of boundaries as contained in the Act.

That is boundaries as they existed at the time the States became members of the Union or as approved by Congress before the passage of the Submerged Lands Act.

Justice Charles E. Whittaker: That's the language respective of the granting clause of Section 2.

Mr. James P. Hart: Yes, sir.

Justice Charles E. Whittaker: Isn't it?

Mr. James P. Hart: That's correct.

Justice John M. Harlan: Perhaps I'm anticipating, Mr. Hart, by when I'm going to ask you what you're going to argue.

Is it your position that the legal effect of the Act of Admission to the Union is an immaterial circumstance in determining what the State's boundary was at the time of admission?

Mr. James P. Hart: Yes, in the sense that it's argued by the Government that there was a shrinkage of the boundaries at that time.

Unquestionably, when Texas became a member of the Union and the other States were admitted, there were changes in their legal relations.But the boundaries which had been fixed before the final Act of Admission and which continued in effect up to that time, also continued to be their boundaries as state boundaries.

Justice John M. Harlan: As a matter of law.

Mr. James P. Hart: Yes.

And as a matter of -- of fact, they had not been appealed.

They remain the boundaries for the purposes of the jurisdiction and powers that a State could exercise within the coastal waters and they were valid boundaries.

Justice Potter Stewart: (Voice overlap) but what are the boundaries of Texas today in the Gulf of Mexico?

Mr. James P. Hart: I think the boundaries of Texas today are three-leagues in the coast because that was the boundary that was fixed at the time we ended the Union and it has not been changed otherwise with the consent of Congress.

And I think the consent of Congress would be necessary to change those boundaries.

I was speaking of the last -- I was getting to the last clause in Section -- subparagraph -- in paragraph (b) of Section 2 and I would like to mention that.

It says that, “In no event shall the term boundaries or the term lands beneath navigable waters be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico.”

Now, the Government has argued in its brief and it -- it is correct in doing so that this clause was added as a clause of limitation on boundaries that extended more than three miles from the coast.

But the significant point is, for these States, that the limitation in the case of the Gulf of Mexico was placed at three leagues from the coast whereas, it was placed three miles from the coast in the Atlantic Ocean and the Pacific Ocean.

The Court will note that the Gulf of Mexico is mentioned specially in both of these paragraphs that I've just referred to.

It's mentioned at the end of subparagraph (b) in connection with boundaries that extend beyond three miles from the coast and in the last part of paragraph (2) that I've referred to, it is mentioned in connection with the boundaries which extend not more than three leagues into the Gulf of Mexico.

We submit being a recognition of a special situation, both historically and geographically, on the Gulf of Mexico which will be argued by counsel to follow me.

But the point is that Congress specifically said that the grant may extend as much as three leagues in the Gulf of Mexico.

Now, I would like to refer to Section 4 of the Act which is copied on page 337 of the Government's brief.

That Section does three things.

In the first sentence, it confirms the boundary -- the seaward boundary of each original coasting State a three geographical miles from its coastline or in the case of the Great Lakes to the end of national boundary.

And I would like to pose here to say that this is the only place in the Act that is in this Section that the national boundary is mentioned as the measure of the grant to the States.

That is in connection with the international boundary which of course is the national boundary in the Great Lakes.

Everywhere else in that, the measure is the state boundaries.

Now, the next two sentences of Section 4 relate to States who are admitted after the formation of the Union.

And it provides that those States are granted permission to extend their boundaries if they have not already done so, the three miles from the coast and that any act of the State by its laws or otherwise which showed an intent to so extend its boundaries, is confirmed by the Congress.

Now, the last sentence is the one that is particularly applicable to the States involved in this case, because it deals with historic boundaries to use that shorthand phrase as boundaries are defined in Section 2.

And it is our position that this part of Section 4 and Section 2 should be construed together to see what Congress meant by -- in Section 2 by boundaries as they existed at the time each State became a member of the Union.

The last sentence in Section 4 says that nothing in this Section is to be construed as questioning or in any manner prejudicing the existence -- the existence of any State's seaward boundary beyond three geographical miles, if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union or if it had been heretofore, approved by Congress.

Our point there, if the Court please, is that Congress had in mind when it said, “Existed at the time a State became a member of the Union,” numbers which had been provided and which were then in effect as provided by laws or the constitution of a State prior to the final Act of Admission.

We think that Congress must have had in mind the process of admission which is not a single final Act of Admission, but as a -- the history of this and other States shows, there's a process which includes several steps.

In the case of the four States who were territories before they were admitted to the Union, process of admission includes an Enabling Act which sets out the boundaries of the State and provides that a constitution, a state constitution shall befall.

The second step is the formation of a state constitution and these States provided in their constitutions for their boundaries.

And the third and last step is the Act of Admission, itself.

Now, Congress there used the words prior to or at the time of admission, because part of the -- the -- part of the legal acts which fixed these boundaries were acts which occurred before the final Act of Admission that is prior to the admission.

And in part, it was determined by the Act of Admission itself.

In the case of Texas, since Texas was an independent republic, its boundary was fixed by the act of the Republic of Texas on December the 19th, 1836, which continued in effect, to the time of Texas admission to the Union in 1845 and which was as will be argued by counsel for Texas at length, approved by Congress at the time Texas was admitted to the Union.

So, we say that the Government is in error in saying that the words at the time that existed, at the time of the State's admission to the Union, relate only to what happened from and after admission.

And that the whole process of admission must be taken into account.

And that what was provided in the Acts of Congress in the laws of the State and the constitution of a State, before admission and which continued in effect up to that time, is what are the boundaries -- the historic boundaries, which are the measure of the grants in the Submerged Lands Act to these States.

I would like to refer to --

Justice John M. Harlan: Well, if -- if I understand that, that does not exclude or as you're not in -- in real difference with the Government here up to this point, are you?Because if --

Mr. James P. Hart: Yes.

I -- I think of --

Justice John M. Harlan: Well, if it is the law you -- you'll -- you'll say among other things that you have to consider the effect of the Act of Admission.

That's one of the circumstances, it's not --

Mr. James P. Hart: Yes.

Justice John M. Harlan: -- inclusive one, but one of them.

That's a proper consideration -- legal consideration to take into account.

Mr. James P. Hart: Yes, sir.

That's correct.

Justice John M. Harlan: And therefore, it is open whether the Government is right or wrong, it is open as one factor for the consideration of the Court to take into account the legal effect -- the legal effect for the Act of Admission.

They maybe wrong as to what the legal effect is.

But you agree as I understand it that the legal effect is a -- an appropriate consideration to take into account in determining what the historic boundary was.

Mr. James P. Hart: Yes.

I -- I think that's correct as stated, Mr. Justice, but I do not -- empathically do not agree with the contention of the Government that the boundary shrank because of --

Justice John M. Harlan: I appreciate that.

Mr. James P. Hart: -- considerations of foreign --

Justice John M. Harlan: I appreciate it.

Mr. James P. Hart: -- policy at the time of admission.

I -- I grant you that the territories at all times was subject to national powers with regard to foreign policy and that Texas became subject to national policy in international relations when it was admitted.

But that has nothing to do, we submit, with regard to its boundaries --

Justice John M. Harlan: I appreciate it.

Mr. James P. Hart: -- as -- as defined in the Act.

Justice John M. Harlan: But your disagreement is -- is to the Government's legal proposition rather than -- rather than as to the relevance of it (Inaudible)

Mr. James P. Hart: Well, I would -- I understand that they say that it's wholly irrelevant, what may have been the boundaries of the States before the moment immediately after admission.

I understand they say that this doesn't make any difference what Texas had when it was a republic or what was defined in these Acts that -- or the constitutions that were adopted before admission.

That it's -- it's the instant of admission and thereafter, that is the only thing that is relevant and we do disagree with that.

We think that these Acts of Congress and the constitutions that were -- and what was provided in them, is relevant as defining the lines, the property lines of the grants in this case.

Justice Felix Frankfurter: May I ask you this question, Mr. Hart.

Mr. James P. Hart: Yes.

Justice Felix Frankfurter: I understand you to say that -- you construe, “became a member of the Union.”

You say becoming and at the time, such State is a member of the Union.

That becoming a member, that phrase, “at the time became a member of the Union” is not a specific moment in time, but is a process, is that right?

Mr. James P. Hart: Yes, sir.

Justice Felix Frankfurter: Now, a process has a beginning and an end.

When do the process -- when do the process of admission of Texas in your view begin precisely?

And what is determinant element?

Mr. James P. Hart: That presents a different situation from the territories and I would say when the negotiations for the annexation of Texas began, and -- and in that --

Justice Felix Frankfurter: When is determination is there's a -- the pronouncement of a very (Inaudible) the admission of a new State by whom the President states is that the -- is that what (Inaudible)

Mr. James P. Hart: I --

Justice Felix Frankfurter: When did Hawaii become a State?

When was it admitted?

When Congress passed the -- measured?

Mr. James P. Hart: I have assumed that it was when Congress passed the Act of Admission, I maybe in error on that, but I have assumed --

Justice Felix Frankfurter: There is -- there is a form of confirmation or whatever it is.

It is the form of statement, is it by the Secretary of the State, I don't have (Inaudible)

Mr. James P. Hart: I'm sorry.

I can't answer your question, Mr. Justice.

I have assumed --

Justice Felix Frankfurter: Because if the Government --

Mr. James P. Hart: -- that it is that passage of the Act of Congress that constitutes the admission.

Justice Felix Frankfurter: The Government doesn't fix -- cut off periods when it is now a minute before it wasn't a State, then there comes a minute when it is a State.

And the Government has that minute of control, isn't that true?

Mr. James P. Hart: Yes, sir.

I understand that to be ascertained.

Justice Felix Frankfurter: Do you claim that there's an antecedent cause (Inaudible) denominated boundary (Inaudible)

And in the case of -- if you're right, then, you must begin somewhere.

Mr. James P. Hart: I have -- yes.

I -- think that's -- that's true.

The point is perhaps I should -- I could state it better by saying that Congress had in mind, certain boundaries that existed at the time of admission.

And in order to have existed at that time, they must have been created by some act prior to that time.

An act of Congress or constitution of the State which was authorized by the Enabling Act or in the case of Texas by the boundaries as provided by the act of the Congress of Texas.

It is that boundary that existed at that time that Congress had in mind as the limit of the property rights which were transferred by this Act.

Justice Charles E. Whittaker: Is that just (Inaudible) on the Act, in your judgment to read in the words immediately existed, immediately before or beginning to read (Inaudible)

Mr. James P. Hart: Well, I -- I think it -- yes, it would -- in this sense that an act which had been passed, to say, some years before admission and then which was repealed before admission, would not be a basis for a claim of a -- a boundary extending beyond three miles that -- but that is really a -- a question that doesn't arise in this case because the Acts which were passed prior to the admission for the Union and which fixed these boundaries continued in effect to the time of admission.

Justice Felix Frankfurter: In the State that they protect?

Mr. James P. Hart: Yes, sir.

And they -- they were specified in the Enabling Acts and in the Constitutions of the States with the territories before that was made.

Justice John M. Harlan: Without regard the time prior to or immediately prior to what you're talking about, I gather, is that what we're dealing with here.

The test of boundary is the boundary whatever it was with respect to which and with whatever legal consequences it had, the Act of Admission was brought to bear.

Mr. James P. Hart: Yes, sir.

Justice John M. Harlan: Is that a fair statement?

Mr. James P. Hart: I think so, yes, sir.

Without reading them, I would like to mention the fact that there are two sections of the Act which are not copied in the Government's brief, but which the Court would tell to look at them or copy them in part on pages 51 and 52 of the joint brief, which is the larger green brief filed by the States.

Section 3 paragraph (b), retains in the national -- provides that nothing in this Act shall affect the use, development, improvement or control by or under the constitutional authority of the United States of the lands and waters for the purpose of navigation or flood control or the production upheld.

And Section 6 retains in the --

Justice William J. Brennan: (Voice Overlap) --

Mr. James P. Hart: Sir?

Justice William J. Brennan: Where do say that's from?

Mr. James P. Hart: It's copied on page 51 of the joint brief, the green brief, the middle of the page, Section 3 paragraph (b).

Justice William J. Brennan: Yes.

Mr. James P. Hart: Yes.

Then, Section 6 paragraph (a) of the Act which is copied below that, provides that the United States retains, without reading at all, it retains all the powers over navigation, over commerce, national navigation, national defense and international affairs, all of which shall be paramount to, but which shall not be deemed to include proprietary rights of ownership or the rights of management which are transferred to the States by this Act.

In other words, Congress reasoned that by the use of -- of that language, was trying to make doubly sure that the effect of the Act was confined to the proprietary acts in the submerged lands -- proprietary rights in the submerged lands which were transferred by this Act and that the Act should not have any effect upon the national powers usually associated with freedom of the seas and the superadjacent waters over commerce, navigation, national defense and international affairs.

Now, with reference to this question of the construction of Section 4 and whether it should be construed together with Section 2, I would like to say that Senator Holland who was the sponsor of this bill made the following statement in the debate, in the Senate with regard to what was meant by these -- these historic boundaries and how they could be established.

He said that the only way that any limit for any State could ever be fixed beyond three geographical miles under the proposed law, would be by fulfilling the conditions prescribed.

That is by showing that its constitution or laws prior to or at the time such State became a member of the union, made such a provision or if its seaward boundary has heretofore been approved by Congress, which we submit.

Justice Hugo L. Black: Is that on page (Inaudible)

Mr. James P. Hart: That is copied in the Texas brief which is the yellow brief on pages 24 and 25 and 26, the large yellow brief.

Justice Felix Frankfurter: What -- what do you recommend, Mr. Hart.

May I ask you, who were the authority -- the authoritative spokesman and whom the House -- and the House and the Senate respectively, whose talk or remark -- statement that would ascertain questions are relevant to -- and one of those are the things that every time they can carry your statement even the House or the Senate, doesn't mind me trying to see what he called it -- now, who spoke with authority of having been either the sponsors or in charge of the bill or in charge of the bill, when the statement was made.

Mr. James P. Hart: Senator Holland and Senator Donnell and Senator Cordon in the House -- I mean, in the Senate and I'm not -- Congressmen Reed of Illinois and Congresswoman Thompson of Michigan and probably others were sponsors in the House.

They -- they always consider more fully by the Senate Committee and was debated considerably more fully in the Senate, so your usual references to the legislative history or to the debate or to the Committee hearings in the Senate.

Justice Felix Frankfurter: Those three Senators you named are those who spoke with authority of being in charge, isn't it?

Mr. James P. Hart: Yes, sir.

I think that they are.

Now, the boundaries as defined in the Act are not of course -- except by the description and definition therein contained, specifically stated, that is that is not said there that Texas gets a certain distance and so forth.

But I would like to point out that as the counsel for each State will argue, the boundary which existed at the time of a State's admission to the Union or as approved by Congress, can be readily identified by reference to the Acts of Congress or to the laws or the constitutions of the States so that there is no difficulty in carrying out the effect of the Act, by referring to these legal documents which will be discussed at length by counsel for each of the States.

The -- we submit, if the Court please, that these boundaries as set out in the State statutes or the Acts of Congress or the State constitutions and approved by Congress by its Acts of Admission either expressly or by a reference, are legal boundaries.

And they are the boundaries which are referred to and defined in the Act as the limit of the grant of property rights to the States.

They are legal boundaries because they were provided by the competent legal authorities at the time before and at the time of admission.

And they had the effect of describing the perimeter of the State which was involved in that admission.

In determining further, these boundaries are legal boundaries as the Government argues.

We submit that the Court should bear in mind if any test is to be applied, although then, simply that these boundaries were so described in these -- on the statutes and constitutions, the Court should bear in mind that this is a question, not -- the subject matter of this suit is not foreign relations, but is property rights.

That is rights in the submerged lands and the natural resources.

And in the second place that the boundaries are state boundaries and that any test is to be applied as to their validity, then it should not be a test which -- which would be applied to a power, which in any event and anywhere, can be exercised only by the National Government.

In effect, what the Government is trying to say here, I submit, is that these state boundaries must be tested by what the National Government would do in applying its exclusive power over international relations.

We submit that that in any event, is not a proper test of the validity of a state boundary.And in that connection, I would like to mention the case that has been referred to here, the Skiriotes case, Skiriotes against Florida, 313 U.S. 69, where the question was the validity of a conviction in a Florida court, of a man who had taken sponges at two leagues from the Florida Gulf Coast.

And the validity of that conviction was attacked on the ground that the Act occurred beyond the territorial limits of Florida and the statute said that these certain acts shall not be committed within the territories of the State.

This Court in a unanimous opinion by Mr. -- by Chief Justice Hughes said that in -- “Under these circumstances where the defendant in the case was a citizen of the State and the question was the enforcement against him of a police regulation, that considerations of international law and the extent of the territorial waters of the United States were beside the point.

And all elements with regard to treaties or with regard to treaties or with regard to the limits of territorial waters of the United States, as they have been described by the Court in the Cunard Steamship Company versus Mellon and in diplomatic correspondence and statements of the political department of our Government is thus, beside the point.

We say, bearing in mind -- first of all, that these boundaries are valid boundaries which in the definition of this Act, because they are the boundaries which were prescribed by the statutes and constitutions of the States at the times that Congress designates in this Act, that that -- when that is found, that that's all that is necessary to make these boundaries, the lines to which these grants go in the submerged lands.

Justice John M. Harlan: Can I put this question to you?

Mr. James P. Hart: Yes.

Justice John M. Harlan: Hypothetical.

The Act of 1836 claimed for Texas have provided for Texas, a three-league boundary in the gulf.

Supposing that the Act of Admission had said that the boundary of Texas was admitted with the international maritime boundary of three miles.

What would be the measure of the -- of the rights under the Submerged Lands Act or not say that that's under -- under this -- under this Act, Texas' rights?

Justice Felix Frankfurter: Well, that -- that wouldn't create a different situation from the situation we held, if the Court please.

Justice John M. Harlan: Oh, I appreciate that.

Mr. James P. Hart: Yes.

Justice John M. Harlan: But, what --

Mr. James P. Hart: But I -- I think that in view of the language in Section 4 which refers to boundaries created prior to or at the time of admission, that the language of this Act would mean that Congress wouldn't and that Congress intended to grant to the boundary that Texas had as created by its laws prior to admission.

Justice John M. Harlan: Notwithstanding the expressed cutting down of those boundaries by the Act of Admission?

Mr. James P. Hart: I wouldn't think so, Your Honor.

Although I'm in doubt on that and it is not a point which arises in this case --

Justice John M. Harlan: No.

Mr. James P. Hart: -- because there has not been any cutting down --

Justice John M. Harlan: No, I realized --

Mr. James P. Hart: -- by the Acts of Admission.

Justice Felix Frankfurter: Let me make --

Justice John M. Harlan: I'm putting that to you to test out what my -- I'm trying to get my understanding as to whether there is a difference between the Government's view of the test and your view of the test and your answer to that question indicates, I think there is a difference.

Mr. James P. Hart: Yes, sir.

I think so.

Justice John M. Harlan: (Inaudible)

Justice Felix Frankfurter: And your -- your answer to Justice Harlan's question was based or derived from and that's the direction -- a reliance of Section 4 and not Section 2.

Justice John M. Harlan: Yes.

Mr. James P. Hart: That's correct.

Yes, sir.

Justice Felix Frankfurter: So that if you have just Section 2 or Section 4, does not have the function that you have cited, isn't that, I take it, your answers have to be that way.

Mr. James P. Hart: Well, no.

I -- I think I did not answer that question fully because it is shown by a report of the -- of the Committee of Congress on a prior session when this part of Section 4 was not in there, that the Committee meant by existing, the boundaries that were fixed before the State's admission to the Union.

So, the word, existed, I -- I think carries the fact --

Justice Felix Frankfurter: You go back to your process that this is (Voice Overlap) --

Mr. James P. Hart: Yes, yes.

Justice Felix Frankfurter: But, as I understood, Justice Harlan's hypothesis, it was an explicit reduction in the -- in the act of accession or admission.

Mr. James P. Hart: Yes, sir.

Justice Felix Frankfurter: And therefore, I could think of a reasonable interest that the admission was conditioned, at least the power of the United States is concerned, on cutting it down, the unilateral preexistence found as explained by counsel.

Mr. James P. Hart: Yes.

Mr. Justice, let me make it plain that I would have no doubt that the effect of the Act of Admission containing that expressed provision would be to reduce the boundary of Texas.

But since as the Government concedes, the Congress could grant to the States property rights in the submerged lands to any line that it chose, then, it does not have to grant -- make the grant on the basis of legal rights.

It can pick out just any line that it wants to and --

Justice Felix Frankfurter: Give something that Texas never had or some other States never had.

Mr. James P. Hart: Yes, sir.

It -- it is given to Texas --

Justice Felix Frankfurter: You have to rely on -- you have to rely on the statute --

Mr. James P. Hart: It's the --

Justice Felix Frankfurter: -- for being that kind of (Inaudible)

Mr. James P. Hart: Well, that -- I -- I think that -- that is what the Submerged Lands Act is.

This Court has held in Louisiana -- in the Louisiana case and in the Texas case that the States have no property rights beyond -- below watermark.

So, what it gets even out to three miles which the -- which the Government concedes to be valid and which this Court held, is a grant of something that the States had no legal right to under this Court's decisions.

Justice Charles E. Whittaker: But the Congress if it's more (Inaudible)

Mr. James P. Hart: Exactly.

Justice Felix Frankfurter: Yes.

But the measure -- but what our problem is -- I probably think that --

Mr. James P. Hart: Yes.

Justice Felix Frankfurter: -- it overwrites that.

But the measure of what they gratuitously gave related to some boundaries limit?

Mr. James P. Hart: Yes.

Now --

Justice Felix Frankfurter: So, we have to go to the boundaries and that's in order to find out what Congress out of abundance of generosity it gave to Texas and so (Voice Overlap) --

Mr. James P. Hart: Yes.

Justice Felix Frankfurter: -- into the case.

Mr. James P. Hart: Now, may I then say what I -- I think it -- it meant by boundary and -- and in that connection, I would like to say something about the general purpose of this Act.

The -- the -- since the purpose of the Act obviously was to make a settlement on -- on a policy basis -- on the basis of the public interest of a controversy over property rights between the national and the State Government.

Now, for many years, before the decisions of this Court in the California and Louisiana and Texas cases, the States thought that they had certain property rights in the submerged land.

This Court held that they were mistaken.

I don't understand that they held that the States were fraudulent.

They held that they were mistaken as a matter of law in -- in thinking and asserting and exercising certain rights, property rights in the submerged lands.

But in the California case, language was used which members of Congress and others thought indicated that Congress -- that these rights that the Government had that includedproperty rights and that those property rights were subject to the disposition of Congress without limitation by any test that Congress sought to apply.

The congressional debates show that the test that Congress intended to apply to the limit of these grants was a test of what Congress thought as a matter of policy, was fair and equitable and just.

Not -- not a legal right because this Court have held the States didn't have any legal rights to -- to those proprietary matters.

What -- on the basis of what it thought would be just in view of the long asserted, good faith claims of the States to these rights.

And for that reason, it -- it took these lines as set out in the Constitution from the statutes of the States at the time they were admitted to the Union or as approved by Congress in the case of Florida.

Well -- and that -- that --

Justice Charles E. Whittaker: That's the same as it was or as -- or as their Act were approved by Congress.

The magnitude (Inaudible) of the case being approved by Congress in (Inaudible)

Mr. James P. Hart: Is limited of what, sir?

Justice Charles E. Whittaker: Is not limited to (Inaudible)

Mr. James P. Hart: No.

I --

Justice Charles E. Whittaker: And that is --

Mr. James P. Hart: No, not -- no, sir, certainly not.

But the -- what I --

Justice John M. Harlan: This sort of (Inaudible) regard isn't it?

Mr. James P. Hart: What I should've said was that the Florida is primary reliance is upon an approval by Congress of its boundaries set out in its Constitution of 1868

Justice Hugo L. Black: (Voice Overlap) whereas, the primary (Voice Overlap) reliance --

Mr. James P. Hart: Sir?

Justice Hugo L. Black: Other States may go somewhere if it likes.

Mr. James P. Hart: Yes, sir.

Justice Charles E. Whittaker: And --

Mr. James P. Hart: But their -- their primarily reliance is upon the boundaries as they existed, as I understand it, and they're also as approved by Congress.

Now, since as -- is shown by the congressional history of this Act, the question before Congress was the settlement of a domestic dispute over property rights and that was to be resolved on the basis of what was fair and just and equitable as a matter of policy.

We submit that any question of foreign relations is -- is obviously irrelevant to a determination of that question.

And any test based on foreign relations should not be read into the Act when -- as the Court recalls, there is no mention whatever, of a national boundary or any other test except simply what the boundaries were provided by their constitution and laws at that time.

Now --

Justice Felix Frankfurter: Is the position of the United States vis-à-vis other countries, any different whether we accept the Government's position under -- under this -- of this reading of the statute or yours?

Mr. James P. Hart: There's no -- there's no difference and the Government conceives that as I understand it in its briefs that whether under -- as the result of this case, the States get out to three-leagues or three miles will make no difference in our foreign policy or in the rights of other nations.

Now, they do -- and while the Act was being considered, Congress was not unaware of the foreign policy of the United States as stated by the Secretary of State in favor of a three-mile limit.

It was advised by Mr. Jack B. Tate, the Deputy Legal Adviser to the Department of State that -- about the three-mile limit.

But it was also advised that it couldn't transfer these rights to the States within the framework of our traditional international position.

And Mr. Tate was asked how that could be done and he said it depended upon the jurisdiction and control that was transferred to the States.

And said, in effect that if that was limited to rights in the submerged lands similar to those which had been asserted by President Truman in his proclamation that then there would be no interference with our foreign relations.

And we submit that the Act as I've discussed it here, shows that Congress deliberately limited this transfer to property rights and furthermore, specifically reserved to the National Government, all rights in connection with navigation, commerce, international affairs and national --

Justice John M. Harlan: It does tend to show however that Congress was conscious of the possible bearing of international law on this problem, does it?

Mr. James P. Hart: Bearing of international law upon what, sir?

Justice John M. Harlan: Upon this problem, upon what they were doing.

It does show that much.

Mr. James P. Hart: Yes, sir.

I -- it does show that, but it -- it shows that they -- we submit that being conscious of the possession of the State Department, they made it clear that this was simply a transfer of property rights and that --

Justice John M. Harlan: Exactly that --

Mr. James P. Hart: -- the foreign policy was not to be considered in the -- in determining the measure of the grant in the Act.

Now, there were attempts when the Act was being debated in the Senate and in the House to tie the grant to the States to foreign policy by tieing it to a three-mile limit.

There are three efforts to amend the bill in the Senate.

One of them was opposed by Senator Anderson of New Mexico, who was one of the leading opponents of the Submerged Lands Act.

And he said in -- I quote part of what he said here, the full quote is on page 25 of our joint brief.“My substitute does try to follow the three-mile limit.

Whereas, the Holland resolution does not do so, instead, the joint resolution sets a line as far as 10 and one-half miles off the shore.”

His amendment was defeated and all similar amendments to tie the grant to foreign policy in the form of the three-mile limit were defeated showing and we submit that Congress deliberately chose to measure this grant not by questions of foreign policy, but by simply fixing lines which it thought were fair lines with the transfer of property rights.

The President took part in the legislative process and we submit that his statements are therefore, relevant.

He urged the passage of the Act to historic boundaries before the Act came up.

While the Act was being considered, about 20 Senators wrote him a letter asking him to state his position on the Act and stating that any grants beyond three miles would embarrass and obstruct the United States and its foreign relations.

The President answered restating of what he had said in public speeches that he favored the grant to the States to their historic boundaries and by way of illustration of what he meant, referring to the submerged area extending to Texas submerged area extending three marine leagues seaward into the Gulf of Mexico.

He urged the passage of the Act.

Surely, President Eisenhower was aware of the three-mile limit policy.

And if he had thought that the Act in anyway violated their policy, we believe that he would not have urged this passage when as he specifically said, he thought that the effect of the Act was at least as to one State to give rights out to three miles -- I mean, to three leagues.

The -- and we -- we think that it -- that what the Court says -- said in the case of Alabama against Texas, has some relevance particularly since that case was handed down less than a year after the passage of the Submerged Lands Act.

The Act hasn't been passed in May of 1953 and the decision in Alabama against Texas being handed down in March of 1954.

While, certainly, the point was not decided, we submit that reading the opinions in the case, indicates clearly that it was assumed by all parties at that time that as to at least some of the Gulf States, they got rights out to three leagues in the Gulf.

In fact, in one of the opinions -- dissenting opinions, it stated that some States got about 10 miles indicating what the intent of Congress was if everybody understood it, at that time, closed to the passage of the Act about five and a half years ago.

Justice Felix Frankfurter: Mr. Hart, in particular, I noticed the decisions of the use of the most conscientious lawyers.

I believe that the Court decided no more than it (Inaudible)

Mr. James P. Hart: I -- I was citing the case in this instance, I might say that -- that leads me to my next point which is that -- I'm proud to say so far, if the Court please, that the terms of the Act do not limit the grant by foreign policy or the -- or the definition of any limit on territorial waters as set out by correspondents of Secretaries of State.

Justice Charles E. Whittaker: Unless that's done by the presence of the words, existed at the time of.

That might be a limitation, existed at that time as the boundaries existed at the time of the State was a member of the Union.

Was not --

Mr. James P. Hart: If it could be a limitation on that, yes, sir.

We submit that it's clear that Congress did not mean that -- that foreign policy would be a limitation on the boundaries as to they're existing because it refers to the kind of boundaries that I've mentioned.

Now, we submit that -- that since the Act by its terms does not contain this limitation and since it was clearly not the intention of Congress that the grant should be limited by a foreign policy, that the States are granted rights out to three leagues.

We further submit that considerations of construction of statutes properly lead to the conclusion that this Act should be construed so as to give it full effect including the provisions in the Act for -- or relating -- referring to boundaries beyond the three miles and out to three leagues in the Gulf of Mexico.

As I said before, the Government repeatedly conceives that the Congress had the power to make a grant to any line that it wanted to choose.

That that line could be all the way out to the edge of the Continental Shelf, if Congress had chosen to place it that far, that since this is a matter of a division of property rights in an area in which it is conceded, that the United States has exclusive jurisdiction and control according to the convention in the Continental Shelf that was adopted at Geneva that year, it -- it has sovereign rights by a reason of being the coast of the State adjacent to the Continental Shelf.

That -- that since that is the situation that whether the control which the United States has over these rights in the Continental Shelf is to be exercised by the National Government or by the States, is a matter of domestic distribution of powers which does not concern other nations.

So, we say that it is not necessary either for -- with regard to the purpose or the effect of the Act to -- to imply or to read into the Act a limitation upon the grant which is not found in the Act itself nor -- and which we submit, would be contrary to the intention of Congress as shown by the congressional debates.

Justice John M. Harlan: Do you -- Mr. Hart, do you agree or disagree with the Government's view that boundaries necessarily means the State's maritime boundaries?

Mr. James P. Hart: We disagree with that, if the Court please.

Justice John M. Harlan: Would you --

Mr. James P. Hart: The --

Justice John M. Harlan: -- elaborate that (Voice Overlap) --

Mr. James P. Hart: Yes.

As -- our position is this, that the term “boundaries” is a word that is used as a geographical expression which was well-known and in current use before this question of the limit of territorial waters arose for -- and that is pointed out by Mr. Dulles (ph) in his letter on page 343 of the Government's brief that the term “territorial waters” was not in use at the time Jefferson wrote his letter in 1793.

But obviously, the term “boundaries” was used because it was used for example in the Treaty of 1783, the Treaty of -- of Paris, which is copied on page 6 and 7 of our letter reply brief.

In other words, it states what the boundaries are and those boundaries include a boundary in the Atlantic Ocean which is determined by drawing lines 20 leagues into the ocean, due east, from the boundary of Florida and Nova Scotia and then wanting the line along the ocean to see what islands are included within that boundary.

The question of the extent to which the -- the Nation will exercise the powers which go with territorial waters as that term has come to be recognized since that time, is a question of foreign policy which is -- which may vary from time to time and which does not necessarily depend on boundary.

We submit that -- that boundary does not by any means -- is not by any means confined in its meaning to the limit of territorial waters which will be determined by considerations of foreign policy.

Another example is the use of the word, “boundary” in the Treaty of Guadalupe Hidalgo.

That boundary is copied on -- in the relevant portion of the Treaty fixing that boundary, is copied on page 98 of the State's joint brief.

That Treaty -- that section of the Treaty provided that the boundary line between the two Republics shall commence in the Gulf of Mexico, three leagues from land.

Now, that was a boundary.

It says that commence is incidental, Mr. Justice.

Three leagues from land, it's not simply a call to go up to the beginning point, but that is the beginning point of the boundary.

And we submit that it -- it was fixed there because Texas already had a boundary and the -- and which the Government had recognized when Texas was admitted to the Union at three-leagues in the boundary.

So, the logical place to begin the boundary between Mexico and United States and incidentally this is a boundary between Mexico and United States, was -- well, the boundary ended there at that point three leagues from land.

Now --

Justice Charles E. Whittaker: (Inaudible)

Mr. James P. Hart: I beg your pardon?

Justice Charles E. Whittaker: Did you say the record with reference (Inaudible)

Mr. James P. Hart: Yes, sir.

Page 98 of the green -- large green brief, the -- the Treaty of Guadalupe Hidalgo was copied there.

Now, to -- to further answer the question that was asked to me as to whether or not, boundary necessarily means a limit of territorial waters.

We say that it does not.

We think that beginning in the -- about 1870 thereabout, the Government did adopt a policy limiting the exercise of rights within what are called “territorial waters” to three miles.

But that is a question of foreign policy which was decided as such and not necessarily with reference to any boundary.

In fact, the word, “boundary” is usually not found in any diplomatic correspondence.

It's simply -- they say a limit of territorial sea or something of that kind.

And we believe that boundary must be considered in -- in this Act as it is defined here and that it is erroneous to identify a boundary with the outer limits of territorial waters.

Another example was the boundary that was fixed of a session to Alaska by Russia in 1867, which fixed a western limit of that session out in the middle of the Bering Sea.

What the Government has felt free not to exercise jurisdiction out that far, although it originally did so and now exercises jurisdiction only out to three miles.

We submit that they are separate questions and that there is not a necessary identity between the boundary -- such as a boundary provided in the Treaty of Guadalupe Hidalgo or -- and the limit of territorial waters.

Now, we don't say that the Act which fixed the limit of the exercise of customs jurisdiction at four leagues or the -- or the acts by which the Government has exercised jurisdiction beyond three miles in the ocean, fixes necessarily the state boundaries.

What we do say is that there is -- that -- that there are various limits of the exercise of jurisdiction by the Nation which are independent of boundaries.

And that the Government is -- is in error in stating that the state boundaries or that any boundaries must necessarily be what has come to be defined as the three-mile limit.

We have cited in our --

Justice Felix Frankfurter: You say it must be.

They say that as put such a -- besides definite, almost irrebuttable(Inaudible) boundary equal the uniform claim to the (Inaudible) uniform position of the United States that maritime boundaries are -- do not go beyond three miles (Inaudible)

Mr. James P. Hart: I think that is their position but we -- we --

Justice Felix Frankfurter: But it clearly gets down to the claim on their part of statutory issues giving a statutory construction whereby boundaries equal three miles.

Mr. James P. Hart: Well, if -- if they were right about this, then everything that Congress put in there about boundaries extending beyond three miles and out to three leagues in the Gulf were absolutely futile and meaningless because Congress knew what the three-mile limit policy was.

It had been fully advised without that.

And if -- if that policy was to be a limit on the grant to the States, then it just set out three miles and quit.

Justice Felix Frankfurter: Well, you could've voted for those two amendments?

Mr. James P. Hart: Or they could've voted for those two amendments, but they decided not to do so and instead, claim the Act as they did, transferring right out to the States' historic boundaries.

We -- the Government has argued that the letters of Secretary Dulles (ph) are conclusive of -- in determining this matter, but we submit that what the effect of foreign policy maybe upon the construction of the statute, is a legal question which is within the jurisdiction of this Court, a judicial question and is not a question of policy that we would conceive and that the Secretary of State in the absence of a contrary Act of Congress or a position taken by the President in the executive declaration or otherwise, can decide what current foreign policy aid is.

But, we say that he cannot tell this Court what the issue is in this case or tell this Court conclusively that it must be governed by foreign policy in deciding the geographic coverage of the statute particularly where the subject matter of this Act is not foreign relations, but property rights in an area that is in the submerged lands in the Continental Shelf where everybody in its -- the United States and the United States alone has jurisdiction and control.

Argument of J. Chrys Dougherty

Mr. J. Chrys Dougherty: Mr. Justice Black, may it please the Court.

Although the States believe firmly that the concept of boundary is not to be governed by foreign policy or the United -- or the United States' particular notion of international law.

They say that if you do meeting the Solicitor General directly, if you look at general international law and at the position of the United States in international law at the critical dates that these -- that that law that supports the state boundaries at least three-leagues in the Gulf of Mexico rather than denies that.

I point out to you, Your Honors, that the main brief of the Government states that these boundaries never had any validity under international law or the law of the United States.

That statement was repeated this morning by the Solicitor General.

But in his brief, in his reply brief on page 3, he conceded, it seems to me, that the precise -- his precise contention was that this limitation on boundary arises solely from the international position of the United States regardless of what may have been general international law.

Now, we have presented to the Court the opinions of Professor (Inaudible) of California and that we think the leading -- British sea law expert, Professor Columbus and we have an addition to that presented to the Court and this is on the general international law point.

A tabulation beginning at page 199 of the Texas brief showing by opinions of publicists and diplomatic correspondents that throughout the period from 1763 to 1899, three leagues was mentioned as one of the approved limits or one of the possible limits.

We challenge directly, specifically, the contention of the United States that the United States has never at any time for 150 years as the Solicitor said this morning, departed from its present conception of the three-mile limit.

It seems to me sir, Your Honors, that the Solicitor General has -- is -- is trying to superimpose on the first half of the United -- of the 19th century conceptions as to the content of the territorial sea that were developed in the last half of the 19th century.

And that order -- in order properly to -- to evaluate this case and Congress directed the Court's attention to the state of international law and if you will, the state of foreign policy determinations of the United States if it be conceded arguendo that that is what's wanted to control this case, at the time that these States became members of the Union.

If they had intended present foreign policy to control, then if the answer was simple, but they said at the time that they entered, that determined a critical date and an earlier time in the progressive development of international law.

Now, may I call Your Honors' attention to the development then of this policy during the critical period from 1793 until 18 -- and 1868 when Florida's boundary was approved by Congress and direct your attention to that period regardless of what -- as later said about that period -- look -- let's look at the evidence as to the state of affairs during that period.

Mr. Jefferson's letter which started this discussion is set forth on page 77 of the joint brief, the large green brief.

Now, he simply fixed provisionally in all premise, he simply fixed provisionally the area of the -- of adjacent waters in which the -- the infant republic would undertake to protect foreign shipping from belligerent acts.

He recognized in the course of that, that three leagues had some authority even then at that -- in its favor and it did, as a matter of fact, at that time because it had been suggested as the limit to the members of the Continental Congress who negotiated the peace treaty with Great Britain.

Now, the next thing we did, we selected -- we -- we implemented his policy, but we also declared a fully custom zone.

Then, when we got up in the early part of the -- of the 19th century, the problem of impressment of seamen came up.

It was a critical thing ending up in the -- in the War of 1812 as you know.

At that time, Mr. Jefferson who was President, just preceding the war, remembered his earlier reservation and said that the limits of the United States for protective purposes ought to be the gulf stream and he actually made such a -- a tender to Great Britain at that time.

That would be as I understand it, some 50 or 70 miles off the coast of what was then the United States.

Now, that was the foreign policy of the United States, the policy of broad limits.

At the time that Louisiana, Mississippi and Alabama joined the Union, then Attorney General Gremillion is going to speak -- he will speak to you in a moment about the special physical characteristics of the Gulf of Mexico.

But I want to simply point out here that the Gulf of Mexico is a very shallow Gulf.

And the -- and it -- and it's physically not possible and this was recognized throughout the early part of the 19th Century.

It was not physically possible for ships that sail the Atlantic and the Pacific to approach nearer than approximately three leagues in the Gulf of Mexico.

So, the policy that was adopted in this area, which I will submit, is a reasonable policy based on that physical fact.

Now, what did the United States do?

And here, I wanted to draw this parallel for Your Honors, during this period.

First, what did the United States actually do and what I think, what is the effect of the Government's contention?

The United States did a series of acts during this period with specific respect to the Gulf of Mexico that it didn't do any place else.

First of all, it admitted four States with Enabling Acts expressed in terms of leagues, three and six leagues in the Gulf of Mexico.

The next thing that happened was that a -- an infant republic, Republic of Texas, declared a boundary, an all purpose boundary if you will, three leagues at sea.

There was no protest of this boundary on the part of the United States.

As a matter of fact, the United States proceeded to recognize that boundary and then, acquiesced in it for the entire life of that Republic and without protest.

And we will draw parallel in a moment that the minute a -- a statute was passed in Russia on the -- on the North Pacific, the United States was quick to protest.

Justice Felix Frankfurter: Direct when you say recognize, you mean that the United States recognized the Republic, although it has such a boundary or it simply recognized between the claims

Mr. J. Chrys Dougherty: I think the Solicitor's point is that there has to be a physical -- Your Honor, a -- an actual recognition in terms.

My point is that the recognition is a recognition by acquiescence when protest is called for, if they objected to it.

And that has been their policy.

Justice Felix Frankfurter: (Inaudible)

Mr. J. Chrys Dougherty: And that -- that is -- that's policy.

Justice Felix Frankfurter: You say that a -- that we recognize exactly that has a claim of (Inaudible)

Mr. J. Chrys Dougherty: That's correct.

And that -- and that has certainly been our history in the latter part of the -- or in the first part of the 20th century.

That's -- it's our uniform history, but it was not the policy then.

Now, the United States admitted the Republic was --

Justice Felix Frankfurter: Give me now reason to speak up.

Mr. J. Chrys Dougherty: Yes, sir.

I think we speak up at the present time without that.

But we didn't then and Congress made that time the important thing.

Justice Felix Frankfurter: (Voice overlap) when does -- when did you begin to speak up?(Voice Overlap) --

Mr. J. Chrys Dougherty: We began to -- we -- we began to speak up, sir, beginning, I think, in about 1855 or in 1862 and then again, we were -- we were silent for a while and then we began to speak up very reciprously after we lost -- bearing first sea law arbitration in -- in 1893.

Justice Felix Frankfurter: And as -- as sweeping the resistance since then?

Mr. J. Chrys Dougherty: I haven't -- I haven't studied all of that, but my -- my answer to you is that in 1882 for example, we let go a boundary, a three-league boundary, down off Mexico without protesting, even though it was communicated to us.

But if certainly of recent years, we've been very consistent.

I think United States' present policy is clear.

Congress knew about that.

Justice Felix Frankfurter: Because that's merely --

Mr. J. Chrys Dougherty: But --

Justice Felix Frankfurter: -- that merely goes to the point you made a little while ago, namely, differentiations between objecting to what other countries do and asserting all on what is -- what is --

Mr. J. Chrys Dougherty: That is --

Justice Felix Frankfurter: -- correct or desirable or just call it what you will, international policy.

Mr. J. Chrys Dougherty: We -- we've certainly objected to that three line until the time of Geneva of course, we made this tentative suggestion.

Now, let's -- let me direct your attention, go back to what's going on in the Gulf of Mexico.

Down there, after -- with that boundary statute on the books, we fought a war.

The United States went to war to sustain a portion of that boundary and President Polk mentioned that Boundary Act in his warmest.

The United States after the war instructed its peace commissioner to follow that Boundary Act in the peace negotiations.

And every draft from the Secretary of State furnished domestic trust, directed that that Boundary Act be followed and it was specifically referred to.

We have the Treaty of Guadalupe Hidalgo which it's admitted is still the international boundary of the United States.

You -- Your Honors have -- have seen the map that appears on page 1 -- 102 of the green brief, perhaps at page 102, where it clearly shows that as recent as 1912, the International Boundary Commission stated specifically the international boundary line begins three leagues at sea.

I don't understand that the Solicitor General disputes that.

Thereby, Treaties and International Act since that time, that boundary is the present boundary of the United States.

Now, the -- Mr. Tate in his testimony admitted each one of the facts that I have just stated to you that there was no objection to the boundary at the time and that for that reason, these Acts in the Gulf of Mexico are an exception to the general policy of the United States during this period.

And he also regarded the Florida Constitution also as an exception to the United States during that period.

So, we have a series of Acts beginning with these gulf state boundaries occurring during this period that relate to the Gulf of Mexico at the same time for -- other things are going on.

Now, I see, the Solicitor General and here's on the other hand, the Solicitor General says that the -- I've given you the evidence for it as I see it.

Now, here's the evidence against it as -- what -- which the Solicitor General brings forward to us.

First of all, he adverts to a Treaty with Algiers in which we agreed with the day of Algiers that he would -- we -- he would protect our shipping under the guns of his corps.

It seems to me, that's certainly within the Jefferson policy and at -- at least was more restricted, it was appropriate to the Mediterranean and that's fine, it doesn't prove anything about the Gulf of Mexico.

Next, he inversed to the Treaty with Great Britain in 1880, now, there's a wealth of diplomatic correspondence and one of the better respites that John Quincy Adams ever had, he had about that treaty.

But the full effect of that renunciation has to be understood in the light of the fact that in 1883, we negotiated and got far on the Northeast Coast, the right to fish right up to the shores.

And we -- we partitioned that right with Great Britain.

After the War of 1812, Great Britain contended that the right had been terminated by the war and that we had no further right to fish.

The -- at the Treaty at -- at against, our commissioners refused to exit to that claim.

Shortly thereafter, our -- our vessels were stopped 60 miles from shore and we -- and we've entered into negotiations to try to settle this matter.

Frankly, what happened was a compromise.

We agreed to renounce the right to fish three miles, the narrowest limit we could get, off of the southern part of that coast, Coast to Prince Edward Island, in exchange for the right to fish right up to the shores on the Coast of Newfoundland and the coast of what is now Labrador, what is now Quebec.

If this thing had been a well settled principle of international law, you would have seen this written throughout this negotiation.

Instead, this is expressed in terms of a compromise.

And our negotiator says, what we gave up was the area where fisheries -- where the fisheries were not in favor of the fisheries we were interested in, the crab fisheries which were farther away from the shore than nine miles.

As late as 18 -- 1887, Francis Wharton of the State Department recognized that this was a policy limited to the Northeast Coast.

It was born and compromised, it was a fight that ended -- did not end until 1910.

Now, the next thing that the Solicitor General brings forward is the controversy over the Russian Ukase case of 1821, where Russia announced the claim to exclude fishing and exclude any contact with the natives from -- for 100 miles at sea.

Without detailing that correspondence, what John Quincy Adams simply told Russia was that 100 miles is too much.

That's -- that's an inadmissible claim, but he did not attempt to set a boundary at a reasonable distance.

He did not say the three leagues was an improper boundary, he negotiated for and got the right for American fishing to go up to the shore and use the shore, all the waters of the pacific except where there were settlers.

Now -- and he made a prompt protest to that boundary at that suggestion as soon as it came to his attention.

Now, the next one is the Falkland Islands controversy in 1832.

This correspondence can also be understood only by careful reading of it.

What it -- what actually -- the United States was -- was complaining about was the fact that there was no right of an exclusive fishery on a desert and uninhabited island.

They had -- they said they had -- had been enjoined -- in enjoyment of the fisheries for 50 years and they used the shores, they used all parts of the water.

And here, the Buenos Aires Government was excluding them without notice.

And they complained about this fishery, but what they -- they actually denied what is the concept of the territorial sea.

They actually said that the only purpose that any sovereign could have in limiting fishing close to the land was a revenue purpose.

Now, that's not fixing boundary in the Gulf of Mexico, it seems to me.

Now, the only other things that I have discovered in the Attorney General -- I mean, in the Solicitor General's brief are two isolated statements dealing with the territoriality of ships.

Again, they are not fixing boundary.

They didn't talk of sea limits in any of this discussion.

This is -- I mean, talk of boundary, they talked in terms of sea limits.

And the jurisprudence of the United States at that time is inverted to in the Jefferson letter, near the end of it that the States were the competent ones to fix boundary, or Congress was confident to fix boundary, but Congress had a fixed boundary.

Now, it seems to me that view -- viewing these two sides of the coin together, you've got a separate policy by the very action of the political departments of the United States, a separate policy for the Gulf of Mexico than what you have in their -- on these isolated instance is that each of these other isolated instances is being treated on an ad hoc basis specifically for that purpose without any intent on the part of the -- the Secretary of States that go beyond the matter in which he's dealing with.

Now, I'd like to deal for one minute about the matter or the situation of the Secretary of State in conclusiveness of the statement of the Secretary of State in this matter.

We are faced here for the first time to my knowledge where the Court being asked to take the word of the Secretary of State.

Now, the present Secretary of State as to what policy was 100 years ago and what the intervening policy, we do not doubt that the Secretary of State has the right, as a political matter, to state the present policy of this Government.

But it seems to me that the reason for the rule that -- that requires this Court to -- and this Court has held it requires it to follow the policy of the political departments is completely lacking here.

What are the reasons that are assigned for that rule?

First of all, here, the sources are immediately available.

The same source is available to this Court as available to Secretary of States, as a matter of historical research.

There is no objection now to showing diplomatic correspondent, that's been raised in some cases.As a matter of fact, the Government itself publishes diplomatic correspondence 15 year -- up to 15 years ago.

The facts are of those of the United States' own position.

We're not having to build into the -- and the foreign correspondence and to correspondence of the British Government and -- and get documents that are beyond the reach of this Court.

Now, finally, and with specific reference to what the Solicitor General says, I -- it's -- it's my position, Your Honor, that there is no clear and present danger that if this Court finds that the attorney -- that the -- the Secretary of State in arguing as an advocate in some of this cases in the past, has overstated his position about what the history of American policy is that there will be any objection or any difficulty created in -- in the field of foreign affairs to that matter, has specifically been passed on by Congress, Congress inquired of the Department whether whatever it did in this area, would affect the conduct of the present foreign policy of the United States and Secretary -- and the Assistant Legal Adviser, Mr. Jack Tate said, “No, it won't.”

Furthermore, it seems to me, it's implicit in this Court's holding in Alabama versus Texas that if Congress, speaking arguendo, if Congress had granted 10 miles to some State -- nine miles to some States, that it would not constitutionally affect the conduct of the American foreign policy.

It seems to me that the reason for that is obvious.

The three-mile limit is a -- is a limit concerned with the handling of the waters and the -- and the Solicitor General and -- and with rights in the waters, with fishing rights in the waters.

And essentially, that's what's -- what has occurred.

And actually, it's the subsoil rights.

The question of the subsoil rights has been removed from -- from this litigation because everybody now admits that the United States owned the -- owns these and the State Department admits that United States owned these rights and it -- it had the right under its constitutional power to convey them and to make any division between the United States and the -- and the States that it saw fit to make.

Now, in --

Justice Charles E. Whittaker: I don't understand --

Mr. J. Chrys Dougherty: All right.

Justice Charles E. Whittaker: -- to make this certain --

Mr. J. Chrys Dougherty: Sir.

Justice Charles E. Whittaker: -- is that to say that the territorial -- I hate to use the word boundaries, but, jurisdiction and power of the State shall extend so far as rights in the submerged lands extend, or not?

Mr. J. Chrys Dougherty: Sir, the -- if I have your question correct, I do not understand that any question is being raised about the title of the United States to rights in the seabed, in subsoil, in the area in controversy.

Justice Charles E. Whittaker: Now, if the Attorney -- the Solicitor General as I understand him said, “The States cannot have a boundary seaward of the national boundary.

The national boundary is limited to three miles.

Now, you say, that your rights granted by Congress extend beyond that period, but only under the water.

Now, is that your -- what you're saying?

Mr. J. Chrys Dougherty: I claim, sir, that if -- if the word boundary here, and that's what of course, what we're all struggling with.

The word boundary -- if -- if Congress showed to define as a boundary in this area, an area outside of what the department happens at the moment of policy could claim as the limits of territorial water.

Then, Congress had the right to give that boundary to the States.

And I -- and I say that the history of the Act shows that it was the intention of Congress to give the States granted in where -- well, an area out to the boundaries that they've -- they -- they were able to show that they had.

And it's my contention, sir, that those boundaries are on effect -- the -- the determination if you will, sir, Your Honor.

Determination of that question needs to be (Inaudible) by the position of the United States in foreign policy because everybody admits and admitted throughout the legislation of Congress that that did not concern the matter.Congress, in the Submerged Lands Act, severed paramount rights and the conduct of foreign policy from property rights in the subsoil.

So, Congress had the power -- had the right to give this area.

And -- and so, it's -- it's my contention, sir, that this -- that Congress gave these rights out to a boundary which was valid under the foreign policy of the United States at the time of admission because the United States at that time established a separate policy for the Gulf of Mexico from what its policy was, any place else.

Justice Charles E. Whittaker: On whose gulf?

Mr. J. Chrys Dougherty: The -- the boundaries of the States in the Gulf of Mexico.

And it's certainly obvious that that's what they had done.

And -- they -- they recognize -- continue to recognize the international boundary -- Mr. Tate said, the United States recognizes the Treaty, not unless this, Your Honor.

The United States recognizes the Treaty as setting the boundary between Texas and Mexico.

But he goes on to say that that does not necessarily control -- I think that the State -- we, the State Department, have not had to pass on the question of what are the territorial waters of the Treaty.

He -- it seems to me that he understands that there is not necessarily a connection between the two, although for many purposes, they are the same.

But here, it seems to me that they are not.

May I go on to say, sir, that it does not seem to me that there's any practical necessity for following the State Department policy in this matter of boundaries based on what were the boundaries 100 years ago, because it will not -- there's no clear and present danger that it will embarrass the present conduct of the foreign policy to say that inconsistencies occurred in effect.

That's really what I'm intending to say.

That if -- if this Court should hold that there has been -- there have been inconsistencies in the hand -- management of foreign policies in the past and they haven't always, as the Solicitor did said, feud to the line.

That determination will not embarrass present foreign policy because that's been presented to Congress and it's been presented to this Court and has -- have been decided to the contrary.

Now, let me mention hereon to say simply this, that the events after 1845 are relevant only with respect to whether or not, the policy had become so strong after 1845, that -- that Florida's boundary could not be approved by Congress.

It seems to me that the determining factor there is here -- this approval by Congress of the Florida boundary was not done in a corner, it was done with Mr. Seward who may -- gave a fairly clear statement of this present foreign policy.

In 1862, he was still Secretary of State, he was seating right there in Washington and again, he was silent on this policy which brings me simply to point out to Your Honors that this -- that the circumstance in this whole history that convinces -- that is -- it's more convincing, it's convincing to me that the Solicitor General can't be right as to what the people then understood about foreign policy, is the circumstance that the man who supposedly formulated this policy and who knew it better than anybody that's now alive did not protest at the very time these Acts were going on.

If you -- it's a -- it's a matter of fact that Mr. Jefferson who's founded it and Mr. Adams who was the peace commissioner, Mr. Madison, Mr. Monroe, none of them raised any question about these three and six-league boundaries -- boundary stated in that term in the Gulf of Mexico.

That John Quincy Adams and Clay and Gallatin and Rush who were against and Adams and Richard Rush who negotiated the Treaty of 1818, John Quincy Adams and Middleton, who had negotiated with Russia on this matter of the Ukase of 1821 that Francis (Inaudible) who was the man intimately involved with this matter in the Falkland Islands, that Daniel Webster who wrote on this territoriality of ships.

And John C. Calhoun was all around in an active public life at the time that Texas was recognized that nobody said anything about it.

Webster was in the Senate when the Treaty of Guadalupe Hidalgo was approved, Clay, Francis (Inaudible) were -- were -- was around, John Tyler, John C. Calhoun were all there, knowing better than anybody else that this consistent policy was being followed by the Government and not one of them raised a word.

Why did Mr. Seward saying what he had said to Spain, why didn't he say something -- why did he draft the -- the Alaska Treaty including these broad water boundaries instead of -- as we probably would under the Solicitor General and the State Department would today, define the islands where they -- a belt of -- of territorial waters going around it?

Why was -- why was Mr. Seward quiet in Washington when this congressional -- when this Florida boundary was approved?

Justice Felix Frankfurter: Have you contended to establish that he was fired

Mr. J. Chrys Dougherty: Yes, sir.

Justice Felix Frankfurter: Do you mean there's no written document?

Mr. J. Chrys Dougherty: There is no written document.

There is no record in Congress, sir.

And that very fact belies to me that this policy could be -- have been as strong as the Solicitor claims it was at that period.

Thank you.

Argument of Jack P. F. Gremillion

Mr. Jack P. F. Gremillion: Mr. Justice Black and may it please the Court.

I'm going to continue the argument made by Judge Hart and Mr. Dougherty on the grounds that are common or joint to all of the defendant States in this matter.

My argument is confined to two points.

Number one, that geographically and historically, the Gulf of Mexico presents a special situation in which a three-league boundary has been recognized and established for all of the Gulf States.

And the second is that Congress has the power to recognize and establish the coastal boundaries of the States irrespective of conflicting theories of international law and prior practice.

And Congress did thus just that in the passage of the Submerged Lands Act and exercised that power in favor of the contentions made here by the Gulf States.

This covers pages 88 to 145 of our joint brief.

Some references had been made to portions of that brief previously and I'm going to -- of course, with 167 pages to cover in 30 minutes, that's -- that's -- and I can't go through in its entirety, I'll more less going to hit the high points.

As far as the geographic situation that was faced by the Congress when it adopted the Submerged Lands Act.

Any well-scaled map of the North American Continent will show that the Gulf of Mexico is landlocked except from the Florida Strait in the western extremity, Florida Strait is right here in the western extremity between the Peninsula of San Antonio and Yucatan.

This water body is exactly what its name connotes, namely to track the water extending from the ocean or a sea into an indentation of the coastline of a country.

Soundings appear on both of the early and recent maps of the area, which show the shoalness of the waters from many miles seaward from inland.

The shoalness of the waters is particularly reflected as early as 1705 when the geographer for the (Inaudible) of France prepared a -- a map.

And of course, this was after the discovery of La Salle in 1682 and after the taking of the possession of the Louisiana territory by the Iberville in 1698 and 1699.

This map is attached to all the map appendix, the map's I'm referring to Map Appendix 5.

And that map shows and says and gives a warning to vessels not to approach nearer the coast than the sounding points indicated at considerable distances from the mainland, all of which we submit, are greater than three leagues in the Gulf.

Now, the chart which I have here which is 1007 of the -- the coast in geodetic survey, we use this argument -- we used this map rather when we argue this case on April the 8th, 1957.

As you can note, Your Honors, that shows that the distance between Florida and Cuba is 100 miles and the distance between Cuba and Newfoundland, 130.

It's very difficult to conceive of a more enclosed sea, short of the one that is completely landlocked.

Another example of that is a map that we have of North America which is attached to our map index, Map 4 which not only shows the Gulf of Mexico, but which also shows the Hudson Bay.

And Hudson Bay, just by a simple analysis of the measurements on that map is practically the same as the Gulf of Mexico.

The only difference being that as far as proprietorship is concerned, Hudson Bay is owned in its entirety by the British Government.

Justice Hugo L. Black: (Inaudible)

Mr. Jack P. F. Gremillion: It's the right over there, Your Honor -- Mr. Justice, right back at the clerk.

We have prepared one for each of Your Honors, which (Voice Overlap) --

Justice Felix Frankfurter: (Inaudible)

Mr. Jack P. F. Gremillion: They have not been -- I don't know that.

This chart portrays the broadness of the Continental Shelf in the Gulf.

It portrays the irregularities of entire North shore from Florida to Texas.

The shallowness of water depths far out from mainland, the shoals, the banks and oyster reefs, all adding to the irregularity of the sea bottom in the coast itself.

(Inaudible) naval expedition of 1789, a photographic description of the shoalness of the waters lying off the Louisiana Coast or the shellfish.

This naval log accurately describes oyster banks extending from two to -- to two to three leagues seaward from coast causing hazards to navigation.

Lieutenant Commander Porte (ph) wrote a letter to the Secretary of Navy, June the 27th, 1817, in which he said it would not be in his power to approach nearer the shore than within 10 miles of the river Sabine, which is right over here, nor nearer than 30 miles off the Chapala, a stream which is right in here at Central Louisiana.

The Nautical Magazine published in London expressed a warning in its 1840 edition that ships of heavy drafts should not approach the barge at the interest of Galveston, be nearer than six (Inaudible) Galveston be (Inaudible) here.

And on March the 26th, 1882, President Jefferson sent a message to Congress in which he pointed out the difficulties of fortifying law jurors in the Gulf of Mexico between the (Inaudible) of Louisiana which is right up here and Mobile Bay.

All of these physical facts can be seen more clearly on original scale charts in the map appendix which was already submitted to the Court, such as a -- United States Coast and Geodetic Survey 1115 and 1116, which was made a part of our map appendix and also submitted with Mississippi's brief.

Congress clearly recognized this special situation, regional in character in the Gulf of Mexico, when it adopted the Submerged Lands Act.

I think one of the most -- one of the strongest points that we could argue in that matter would be a quotation which occurred from the hearing of Senate Joint Resolution 13 by Senator Anderson who is an opponent of the bill.

This is found in our joint reply brief, a little small green brief -- brief on pages 24 and 25.

And he said at the hearing first, “I think the Gulf of Mexico is somewhat different than the open sea off the Atlantic and Pacific.

Therefore, I want to put in the limitation there.

I am just trying to make this explicit that they could not possibly exceed more than three leagues on the Gulf and three miles on the Atlantic and the Pacific.”

And in the debate on the Senate, he made it farther clear when he said that the Gulf of Mexico might properly be considered as being somewhat of a different category.

Further, Mr. Tate of the Department of State, said on page 1076 of the hearings before the Senate that the Gulf of Mexico presented an exceptional situation that required special dealings.

Of course, Congress had the situation of Florida in mind when it considered the Submerged Lands Act because here in Florida with three miles from coast on its eastern coast and three leagues in the Gulf of Mexico.

Justice Felix Frankfurter: Mr. Attorney General, would you mind telling what Senator Anderson meant by somewhere around when they're trying to upset the statement when you might be able to say what (Voice Overlap) --

Mr. Jack P. F. Gremillion: Well, at that particular time, as I understand the reading of the hearings, there were some considerations given to the fact that maybe the State Department might be embarrassed by a three-league limitation in the Gulf.

But that was clearly brought out by the recognitions of the State Department that the Gulf was a special situation.

And by the statement of the sponsors of the bill in view of the Presidential Proclamation of 1945 and in view of the recognitions by the State Department there, that this was a entirely domestic map and was one which had been, more or less that the Truman Proclamation had more or less, been the basis of the decision in the earlier cases in which this Court recognized Louisiana's possession, the 27 miles in Texas' possession to the Continental Shelf.

It said that that emphasizes the paramount right claims.

And so, when Congress had that before it, it simply said this, that we have the proprietary rights, the United States does.

And so, when we are considering the Submerged Lands Act, it has been recognized by the Department of State that this is no -- there is no conflict here.

Therefore, this is an entirely domestic matter.

We are dealing with property rights, the authority of which Congress has a sole jurisdiction to grant.

Justice Felix Frankfurter: Do I make -- may I --

Mr. Jack P. F. Gremillion: Does that answer your question?

Justice Felix Frankfurter: Well, do I infer just as his limit -- his desired limitation were not for him.

The State Department's right has as a policy of -- has confronted the profession (Inaudible) should go.

Mr. Jack P. F. Gremillion: No.

It would not be confronted with that particular policy because the Truman Proclamation had already been in existence, the decision of this Court recognizing the proprietary rights, it already been existence.

Justice Felix Frankfurter: Congress can do it --

Mr. Jack P. F. Gremillion: That -- and that --

Justice Felix Frankfurter: -- as between and without any legislative congressional determination, this Court has decided --

Mr. Jack P. F. Gremillion: That's right.

Justice Felix Frankfurter: -- be it in imperium of the United States.

Mr. Jack P. F. Gremillion: That's right.

Justice Felix Frankfurter: (Inaudible)

Mr. Jack P. F. Gremillion: That's right.

Justice Felix Frankfurter: He's wanted to cut this down, I didn't make it, is that right?

Mr. Jack P. F. Gremillion: Anderson originally -- Anderson originally requested that it be limited to three miles everywhere.

Then, he recognized in Congress --

Justice Felix Frankfurter: The Gulf (Voice Overlap) --

Mr. Jack P. F. Gremillion: -- that the Gulf was a special situation and he wanted to limit it, exclusive it to three leagues.And then Senator Holland came along prior to the vote on the bill, prior to the time that the bill was enacted into law.

And I had his very words here in which he says this, “By the definition of lands beneath navigable waters, Senate Joint Resolution 13 recognizes that area within the three-mile limit or within such greater distance as a State's seaward boundary, existed in the Gulf of Mexico or any of the Great Lakes at the time such State became a member of the Union or -- is here -- heretofore approved by Congress, is within the territory of the States and the United States.”

This assertion of congressional policy will confirm the fact that such an area is within the jurisdiction of the United States and therefore, it is subject to legislation by Congress.

I would like to further point out that that -- on that particular point, Mr. Justice Frankfurter, that in the Submerged Lands Act, Congress again recognized that and restated it when it enacted into law Section 6.

The United States retains all the navigational servitudes so forth and rights in and power and regulation and control of lands in navigable waters for the Constitution of purpose of commerce, navigation, national defense and international affairs.

So if there was any doubt about that, it was removed from that portion of the Submerged Lands Act itself, then we go a little farther.

And we have as further proof of that, another Act of Congress, the OCS Act in which Congress in Section 4 says this.

And the OCS Act as Your Honors well know, “Brings the authority of the United States Government to extract the natural resources from whatever boundary the State has in the Gulf to the edge of the outer Continental Shelf.

For instance, in the case of Louisiana from where this black line isn't exactly the 254 to where the red line is, the outer Continental Shelf.

So therefore, they say only two people can take these resources from the subsoil.

And that's either the State or the Federal Government and Section 4 of the OCS Act says, “The Constitution and laws of the civil and political jurisdiction of the United States are extended to the subsoil.

It didn't open above territorial waters.

To the subsoil and seabed of the outer Continental Shelf and to all artificial lands and so forth for development and moving to the same extent as if the outer Continental Shelf were an area of exclusive federal jurisdiction located within a State.

So, I think that that made the matter very, very clear.

I also think that it made it very domestic as was set on the floor of the Senate by the gentleman that sponsored the passage of it and of course, as you know, the Act that was passed undoubtedly, I think the Government even conceived that.

And also, in face of the fact that there were four amendments in the Senate in which they attempted to limit everyone three miles and to say so exclusively that was an amendment by Anderson, by Senator Madison, by Senator Monroney and by Representative Yates in the House and all of those who are conclusively defeated.

And inserted in the Act was a specific turn not more than three marine leagues in the Gulf of Mexico.

And where did that come from?

That came from every historic act of possession and control and dominion in the Gulf, Acts of which I would like to tell you about in just one second.

But one of which, the United States is a party to, has been a party to, is still a party to and continues to recognize.

And that is the International Boundary Commission opposite our brief in page 102, reproduced.

Here is the wording, “International boundary begins three leagues -- begins three leagues from land and opposite the mouth of the Rio Grande.”

And then it marks off to make sure what league is, it says one marine league.

So, I submit to this Court that Congress was deliberate.

Congress was positive when it put those clauses into the Submerged Lands Act and the OCS Act.

It took all of those historical facts into consideration.

It considered the 16 special Acts of Congress.

The 12 Treaties in the conventions and the Presidential Proclamation, the boundary map, all of which were referring to boundaries in excess of three miles seaward.

I have those, I'm not going to repeat them, they're all in our joint brief at the pages that I referred Your Honors to.

I'm going to briefly run across some of the history because that is the next portion of the argument assigned to me.

Congress therefore, was not being frivolous in recognizing boundaries in the Gulf in excess of three miles.Congress treated the Gulf as a special situation by reason of the prior established boundaries of three leagues which I mentioned.

In so doing, it adhered to its policy of treating uniformly and consistently, all coastal States of this Union from a regional standpoint, those bothering on the Gulf, those on the Atlantic and the Pacific and those in the Great Lakes, because as Your Honors -- as Mr. Justice's well know, in the Great Lakes is that the boundary would be to the international boundary line.

Prior to the original 13 colonies, Spain, France and Great Britain maintained dominion and control over the submerged lands in the Gulf.

La Salle issued his proclamation in 1682.

He took possession of all of the area south of the Mississippi River.

He didn't take possession just at the Mississippi River, it went on.

And it included all of the seas, the harbors, the ports and adjacent straits in the sea or Gulf of Mexico.

When France ceded this land and water territory into Spain in 1762, France ceded everything, except all that it claimed.

As Spain likewise continued to maintain that -- the same claims.

France, as I have mentioned previously, not only claimed under La Salle's proclamation, but according to the procession asserted by the Iberville.

Spain ceded the Florida, south and east of the Mississippi River to Great Britain in 1763.

And shortly thereafter, King George made his proclamation which said that the seaward boundaries of East and West Florida which is now opposite Mississippi, Alabama and Florida, he said, “Including all islands within six leagues of the coast.”

Then, in 1783, Great Britain ceded all.

And I mentioned that word purposely that she had to Spain.

And when Spain came along and retroceded the Louisiana territory to France, it was again described as the same area which it had previously received from France and Spain.

Justice Charles E. Whittaker: Mr. Gremillion -- Mr. Gremillion, may I ask you please?

Mr. Jack P. F. Gremillion: Yes.

Justice Charles E. Whittaker: Do you believe that you -- that these States which were territories can question areas not embraced within their territorial areas?

Are they limited by the areas embraced within their territories?

Mr. Jack P. F. Gremillion: Well, I -- I don't quite follow your question, but giving it the -- the imports that I agree, that -- that I understand, I don't think that that's the question here, that the question of the breadth of the territorial sea is immaterial.

I'm only trying to show to Your Honors that that -- for instance, that clause at last sentence of Section 4 of the Act, that wasn't put there in the Congress haphazardly, it means something because the Court, in my humble opinion, has to construe the whole Act.

And when it says prior to, I mean that it has to consider all, and that Congress consider in passing this Act, all of the historical acts of possession exercised by these former territories which led up to the use of the word “league” as a measurement in the sea because France and Spain always used the term “league”.

And that is terrifically important, if Your Honor please, when it comes to Louisiana, Mississippi, Alabama and Florida, because our Enabling Acts in each case which were passed in Louisiana some eight years before, in Mississippi a year and a half, Alabama, the same thing, Florida, quite some while before -- those Enabling Acts all said that it will be having a perimeter barrier and that will include all islands within three leagues of the coast.

In the case of Louisiana, three leagues from land, in the case of Florida and six leagues from shore in the case of Mississippi and Alabama.

And I'd like to point this out to Your Honors, that when start off by three leagues from Louisiana then out the Mississippi, just out in order to make it uniform, exactly these six leagues from shore in the case of Alabama and Mississippi.

So, the Congress of the United States, when it admitted these territories, it tried to establish a uniform boundary in the Gulf of Mexico.

And it almost certainly did as near as could be done at that particular time.

Because then, we weren't worried about oil in the Gulf of Mexico.

The only thing we were fighting about then was land and what the inhabitants would receive.

And when they said all islands, if there were people on those islands, our country, the United States growing with migration, wanted the possession of all of those lands and the possession of the intervening waters.

The fact which the Government now concedes as far as Mississippi, Alabama and Louisiana are concerned, is something which was not conceded when we argued this case on April the 8th.

So, coming to the answer of your question, no.

When -- when -- and I don't disagree with your decision in California, Texas and Louisiana.

I -- I'm not even intimate to that.

But I am saying this, that to determine what our boundary was prior to or at the time we were admitted to the Union, we are granted the right and this was shown by the debates and the history of the Act.

We are granted the right to show this Court our historical acts of possession.

What -- what the territory of Orleans consisted of and what it consisted of at that particular time.

In other words, the wording as -- as it comes to the particular Act as they existed at that time, because there were many physical matters that came into being to form as they existed at that particular time.

You take for example the Treaty with Spain in 1819.

John Quincy Adams told Spain, “We reserved at the mouth of the river Sabine right here.

We want the -- we want the shore on the east, you can have the shore to the west, but we want all the islands.”

And Spain bulked a little bit.

Spanish Minister was de Onis.

And John Quincy Adams says, “No.”

He says, “My offer to you is withdrawing.

It is no longer obligatory on this Government.”

Later, the Treaty with Spain was concluded in 1918.

And what did it state then -- say then?

It said, “From the mouth of the river Sabine on the Gulf of Mexico in the sea.”

That was the -- at that time that was the southwest boundary of the United States.

And when Texas came along in 1836, and defined its boundary as from the Sabine river, three leagues from land, it necessarily became the southeastern boundary of the Republic of Texas.

So, where did that come from?

Where did that history originate?

It originated from the -- Spain, France -- I mean, France, Spain, France again, from the territory of Orleans, our Act of Admission, our Enabling Act, Louisiana's Act of Admission, the Act of -- the same of Mississippi, the same of Alabama, the same of Florida, the same of the Republic of Texas and it was recognized as an international boundary by the Treaty of Guadalupe Hidalgo.

And I submit to Your Honors because I see you picking up your books and it's getting close to --

Justice Hugo L. Black: May I ask you --

Mr. Jack P. F. Gremillion: -- 4:30 --

Justice Hugo L. Black: May I ask you --

Mr. Jack P. F. Gremillion: -- and I've only covered one portion of my argument.[Laughter]

Justice Hugo L. Black: I want to ask you just one question.

You -- the compulsory six leagues, is it your idea that Alabama and Mississippi have six leagues from their --

Mr. Jack P. F. Gremillion: It -- no.

It is my contention that under the Submerged Lands Act, Alabama can only claim three leagues from our coast.

But when -- I say this, that when the Enabling Act of Alabama and Mississippi was passed, that they were talking about the land around Biloxi, the Gulfport and Mobile.

When they said six leagues from shore, they meant 18 miles into the Gulf of Mexico, pass ship by -- of Horn Island and all those particular areas.

That's my contention insofar as little States were concerned and that Congress, three leagues from coast all out at three leagues in coast I assume, practically even off the (Inaudible) Island with similar distance from Horn, Cat and Ship Island.

Does that answer your -- how many minutes do -- do I have, Mr. Justice Black?

Justice Hugo L. Black: (Inaudible)

Mr. Jack P. F. Gremillion: Well, I can't very well cover the remaining portion of my argument in that time, so I'll come to pages 142, 143 and 144 of the joint brief and call the Court's attention to that and to assert Submerged Lands Act as enacted with the approval -- with the approval of the President.

That was intended to settle this policy matter.

And that settlement should be allowed to stand because the plain purpose of Congress should not be thwarted because other solutions or alternative means of settling these matters were available.

The very self -- same argument made to the Solicitor General to this Court to date was made in Congress and Congress rejected it.

It rejected it in favor of a three-league boundary in the Gulf of Mexico.

Because only the United States, only the Congress of the United States can fix a boundary in the Gulf of Mexico or anywhere.

Only the Congress has that authority.

And Congress acted pursuant to its authority and no further argument is needed that the Congress and the President had made it clear as I said previously that no one but the United States and the several States composing it, can take the minerals of our Continental Shelf.

And it remains a domestic question.

Senator Cordon stated this prior to the adoption of the Act.

And I say that if this -- this disposition must be made, if -- if the Court comes to this question that if it must be made on the basis of a territorial boundary, then logic, sense and the proper application of the recognized rules of statutory construction requires that the Submerged Lands Act be considered as declaring the extent of the national territory.

In other words, if there is a national boundary in the Gulf of Mexico, it has to be three leagues from coast because that power is Congress' power and it had affected that boundary by the passage of the Submerged Lands Act.

And I submit that all that's needed to give so simple and reasonable proposition is to construe the Submerged Lands Act and its (Inaudible), the OCS Act in the proper light and in the effect intended by Congress.

And on that point and I say again, furthermore, it is beyond dispute that the United States now has a national boundary in the Gulf of Mexico, three leagues from coast as established by the Treaty of Guadalupe Hidalgo in 1848 and ratified by the Gadsden Treaty several years later.

I thank Your Honors.

Print this transcript Transcript: 

Argument of Rankin

Chief Justice Earl Warren: Number 10, Original, United States of America, Plaintiff, versus States of Louisiana, Texas, Mississippi, Alabama and Florida.

Justice Hugo L. Black: Solicitor Rankin.

Mr. Rankin: Mr. Justice Black, may it please the Court.

In view of the fact that the question of what the boundary was that the Congress was trying to provide for and its intention and purpose in this Submerged Lands Act is so crucial to a consideration of this case and to what the States received under the relinquishment or grant.

I'd like to deal with that first in a number of different situations.

First, I would like to call your attention to the Act of the Republic of Texas, its Boundary Act of 1836 on page 340 of the Government's brief.

If you recall, throughout the argument in the briefs, great emphasis is placed upon the fact that the Texas claim is based upon the assertion in that statute of what its boundary is, what it was from 1836 on.

That was the action of the Republic of Texas.

And I want to particularly call your attention to the language that from and after the passage of this Act, on page 340, the civil and political jurisdiction of this Republic be, and is hereby declared to extend to the following boundaries.

That is not terminology for any special kind of boundary, any special submerged lands idea, any special smuggling idea, any special idea or concept of boundary that has been discussed in the States' briefs at all.

That is the description of a general, political boundary for general jurisdictional purposes, like the United States is contending Congress intended.

And that, in their own language, they described it for what they intended to be to give them civil and political jurisdiction for that Republic, and that is the fundamental basis of their claim.

Any place you look, if that statute was void and if they had never passed it, I think you'd find that their claims evaporate in thin air.

But they have described the kind of a boundary, and they proceed to talk about it at great length throughout the debates.

I hope you'll bear with me a little on calling your particular attention to language from the debates, because I think in this argument, it will be more clearly understood if you don't have to rely just on my claim as to what -- or the other side's claims, as to what the debates were about.

But if we review here at least a portion, I can't cover it all this time, of the statements made by the parties, keeping in mind that these statements were made in order to try to defeat the attempt to amend this Act so as to reduce it for all our purposes, to three miles.

So that in no event could anyone get beyond three miles, and it was to meet up with that kind of a contention that they represented time after time that this Act did not give any State, anything whatsoever, and I'll read the words of the people that they say where the draftsmen and Senator Holland, Senator Daniel that represented Texas, Senator Long that represented Louisiana, Senator Cordon, who was the manager of the bill in the Senate.

Time after time after time, they said this bill does not give any State anything.

And they also said --

Justice Hugo L. Black: Do they deny that ground?

I didn't know there was any difference between here on that point.

Mr. Rankin: Oh, I think the briefs are pretty strong about that and --

Justice Hugo L. Black: I thought they were saying that it didn't give them anything because it's hard that they had those boundaries to the extent they talked about denying the three leagues and therefore nothing was given by the Act.

Mr. Rankin: Well, if --

Justice Hugo L. Black: What they were -- the right they had in it and the power over it and the ownership of it were simply recognized.

I thought that was their argument.

Mr. Rankin: Mr. Justice Black, if that is their position now, the -- the United States is pleased to have it, because it simplifies the problem, because then it resolves itself to a question of whether they legally did or legally did not, at that particular time, --

Justice Hugo L. Black: Well, I get it.

Mr. Rankin: -- have such boundaries.

Justice Hugo L. Black: If that's the difference, I think maybe I understand it.

Maybe they concede, I am not sure, from the opinions it had that legally the State did not own it at that time, but that what they wanted to do, Congress -- what they insisted the Congress should do was to grant to the State that which they had always owned or claimed to own the authority.

Mr. Rankin: Well, that's the distinction I am trying to make, Mr. Justice Black, between -- the Congress, time after time, they said, “We are not asking that this bill shall give us what we claim.

We tell you, we represent to you, this bill does not give us what we claimed.

It gives us what we have, what we can prove we have as a matter of law, and nothing more.”

Justice Felix Frankfurter: Well, they didn't -- they couldn't have had that because this Court said they didn't have it.

Mr. Rankin: Well, but they contended that they had a boundary.

They had boundaries they said, and that's why they used that terminology.

Justice Felix Frankfurter: Mr. Justice -- if I understand Justice Black said, what he puts to you that they said, “We're not fighting the old ground.”

They couldn't.

I mean, they couldn't overrule, the Congress can't overrule.

It can make ineffective decision of this Court but can't overrule it.

Mr. Rankin: That's right.

Justice Felix Frankfurter: And after the California and Texas case, there were determinations by this Court that the State had no proprietary or exploitive right in the contested territory.

What Justice Black is putting to you is whether the claim was or the contention was that there were certain historic boundaries as to which this Court said, “We don't care really of what they were.

This is not a problem of proprietorship.”

That's the essential holding, isn't it, of California and Texas.

Mr. Rankin: Yes.

Justice Felix Frankfurter: This is not a question of ownership.

When the Government submitted its decree to this Court and put its ownership, this Court wouldn't accept that inclusion in the decree.

That's written.

Mr. Rankin: That's right.

Justice Felix Frankfurter: And therefore, they couldn't have said, “We owned it,” without saying, the Supreme Court of United States' decisions are defunctive or the decisions rather don't exist and we overruled it.

Is this nearly a question of -- of phrasing between you and the question put to you by Justice Black or is it more than that?

Mr. Rankin: Well, I hope not.

Justice Felix Frankfurter: They said we revert to what we call for, we use the language of the discussion, the historic fact.

These were the boundaries.

Essentially, the Supreme Court said that's immaterial for the controversy between the State and the Federal Government's right to exploit these -- these interests, and now a different question arises, namely, whether the United States should forego that -- which the Supreme Court had given them.

Mr. Rankin: Yes, Mr. Justice Frankfurter, but the problem was it was suggested to the Congress by the Government that they had -- there was no question of what they have the power to say, “We'll draw a line, and we'll give the States the rights, we'll give them a quick claim to everything within that line.”

And I wouldn't stand up here for a moment and tell you they couldn't do that.

They have that power.

But they didn't do it.

They didn't want to do it.

They used a different formula for political reasons and not improper reasons either.

They thought there were certain equities involved if they had legal existing state boundaries to a certain point.

So they took that formula, and I am not saying that they were saying then that they've set aside the orders and the decisions of this Court in the submerged land cases at all.

They weren't -- they said they were not doing that, but they were making a grant, and they chose as a basis for that grant whatever the legal existing boundaries were that the States have.

Now, there was no question in any of the --

Justice Felix Frankfurter: Was that what they claim?

The difference between you -- correct me, Mr. Solicitor.

They claimed whatever their existing boundaries were when that issue becomes relevant.

They say, it's one thing, and you say it's another. Congress didn't do something for the State, didn't it?

Mr. Rankin: Yes.

Justice Felix Frankfurter: And it laid down criteria by which that something was to be made concrete, and that's the contest between the two sides.

Mr. Rankin: That's right.

Justice Felix Frankfurter: Applying the -- the terms with the criteria by which something was to be done for the State, you say the result is one thing, and the States say it's another.

Mr. Rankin: Well, but I say it, Mr. Justice Frankfurter, the result is one thing because it's like taking two and adding two to it, you'll get the four.

If you take -- and I don't mean this is that simple.

But if you take the legal boundaries, those are discoverable according to law.

Nobody questioned of whether the States had boundaries even though they weren't entitled to one particle of oil or minerals --

Justice Felix Frankfurter: But there is --

Mr. Rankin: -- one each.

Justice Felix Frankfurter: -- but there is a difference between you and, let me say, Texas as to what the Texas boundaries were when tested by the criterion of the statute existing at the time, isn't it?

Mr. Rankin: Yes, there is.

Justice Felix Frankfurter: Well, isn't that what the controversy is about?

Mr. Rankin: Well, there is the difference that they claimed that the test, as I understand it, is not the legal existing boundary.

And I am trying to demonstrate that regardless of anything else, the Congress intended and these particular representatives of the various States in the Congress represented that what they were dealing with was the measure of illegal existing boundary.

Now, in --

Justice Felix Frankfurter: Let me -- let me make it still more specific.

Isn't the difference between you and them that they accept your criteria legal, but they gave a content to what is a legal boundary different from the content you give it.

Mr. Rankin: Well, if that is the case, Mr. Justice Frankfurter, I would say that the debates preclude them from any such contention because --

Justice Felix Frankfurter: That is from the contention that their content is the statutory content.

Mr. Rankin: That's right.

Justice Felix Frankfurter: Well, I understand that.

Mr. Rankin: Now, in -- on page 55, Mr. Cordon, Senator Cordon who is the --

Justice Hugo L. Black: In your brief?

Mr. Rankin: Yes, in the Government's brief, who was in charged of the legislation in the Senate said the States of the United States have legal boundaries.

It is not a part of the power or duty of the Congress to make determination with reference to those boundaries or where those boundaries should lie.

It is a matter for the courts to determine or for the United States through Congress and the legislative organizations of the several States to reach an agreement upon.

The pending bill does not seek to invade either province.

It leaves both exactly where it finds them.

Whenever a question arises as to boundary, it will be determined exactly as any other question of law is determined.

And the boundary will be established.

The pending measure does not seek to prejudge that issue or to determine it.

It is not within the province of Congress to change the present boundaries of Texas without the consent of Texas.

Then on page 379, Senator Daniel, in Government's brief, says what kind of boundaries they're talking about.

This proposed legislation would treat all the States alike, both inland and seaward, by continuing in effect, one rule of state ownership applicable to all lands beneath navigable waters within state boundaries.

Now, that says -- it treats the inland and the seaward States exactly the same.

This is fair treatment to every State.

The State of Wyoming, is it possible that the State of Wyoming with a landward boundary all around it could have one kind of a legal boundary and then you could stretch that boundary someway?

According to the arguments here for -- because there was smuggling or because it was claimed that you could explore mineral out there into the -- the State that were adjacent like Colorado.

Justice Felix Frankfurter: But this statute does certainly make it clear that Congress thought that one State might have three miles and another State three leagues.

Mr. Rankin: Well, they were giving them the chance to prove that.

Justice Felix Frankfurter: Yes.

But I mean that the legal possibility that one State may have a larger boundary than another seaward is certainly contemplated by the statute, isn't it?

Mr. Rankin: The United States concedes that.

Justice Felix Frankfurter: Well, I --

Mr. Rankin: And if they could prove to you by the criteria set down in the statute and in the debates of what the statute meant, what the real intent of Congress was that under legal principles, they had a boundary of three leagues, they would certainly get it, and we would concede it.

Justice Felix Frankfurter: I suppose that's why we're having 13 hours of argument.

Mr. Rankin: Yes.

It is the problem of this case.

Justice Felix Frankfurter: Approve or disapprove it.

Mr. Rankin: But I'm trying to develop that it is a legal question.

Justice Felix Frankfurter: Yes.

Mr. Rankin: And -- and they were dealing with what boundaries -- legal boundaries are.

Justice Hugo L. Black: May I ask you?

Mr. Rankin: Yes.

Justice Hugo L. Black: I don't quite understand.

You're not telling the power of Congress to give one State more than another.

Mr. Rankin: Not at all.

Justice Hugo L. Black: That's correct.

Mr. Rankin: That's right.

Justice Hugo L. Black: You don't rely on the equal footing provision at all.

Mr. Rankin: Not at this point.

There is a -- a consideration on rearguing our briefs.

Justice Hugo L. Black: I understand, but what you are saying is that although they have a right to prove it, they can't prove it, because they said it was the legal boundary, and the Court had already established the legal boundaries of three leagues at -- at one -- three -- three miles.

Mr. Rankin: Well, I didn't find anything --

Justice Hugo L. Black: That seems to be what you're arguing.

Mr. Rankin: Mr. Justice Black, I didn't find any cases where this Court had ever decided that the boundary for the gulf in particular was only three miles.

In the U.S. against California, the Court said that there was a three-mile boundary that the United States had recognized, the maritime boundary and so forth.

But addressing itself --

Justice Hugo L. Black: But then if you didn't do that, are you -- are you urging that although the Court had not decided that the legal boundaries so far as the Government is concerned was three-mile, that is the truth that no evidence can be offered in dispute that legal truth.

Mr. Rankin: Well, I -- I go farther than that.

I go as far as that is the truth, and then I say that the legal evidence that both sides produce, which -- of which this Court take judicial notice is such that it establishes clearly in favor of the United States that there was no boundary beyond three miles.

Justice Hugo L. Black: Well, then, may I ask?

There was no boundary, no legal boundary or that there never was any.

Mr. Rankin: Never was any legal boundary beyond three miles.

Justice Hugo L. Black: What is the difference between here then?

Do you -- do you say that they did have a provision before the act went in effect --

Mr. Rankin: Yes.

Justice Hugo L. Black: -- that they had civil and political jurisdiction for nine miles.

Mr. Rankin: Yes.

Justice Hugo L. Black: But you say that does not represent the -- did not represent the boundary at that time to which Congress was referring, is that it?

Mr. Rankin: That's right.

It was not effective under the law to make them a boundary projecting beyond three miles.

That is the position of the United States.

Justice Hugo L. Black: Because what?

Because of what reason?

Mr. Rankin: Because in the first place, the United States had a policy of three miles in its foreign relations as a maritime boundary that did not recognize for any country in the world including Texas.

Justice Hugo L. Black: Then how could -- how would it be possible for them to prove to do that if Congress has said some of the States might be able to do this.

Mr. Rankin: Well, they claimed that they had occupied that area long enough so that it was valid under --

Justice Hugo L. Black: But you say they couldn't.

Mr. Rankin: -- international law.

Justice Hugo L. Black: That's impossible.

Mr. Rankin: Well, but Congress didn't decide whether it was or was possible for them to prove it.

It left it for them to establish in court.

Justice Felix Frankfurter: So the question is open.

Mr. Rankin: Well, yes.

They can prove if they can in -- during these arguments that there was -- that the three-mile boundary of the United States did not, as a matter of law, preclude them from having three leagues.

If that's possible under the law --

Justice Hugo L. Black: But as I --

Mr. Rankin: -- it's open for them to try.

Justice Hugo L. Black: -- understand that you're arguing it's not possible.

Mr. Rankin: That's right.

Then they still have another point.

Justice Felix Frankfurter: Well, may I ask before you go --

Mr. Rankin: Yes.

Justice Felix Frankfurter: -- to the other point.

It's not possible to -- Justice Black put you that that's right.

It's not possible from your point of view because the matter has already been adjudicated or because according to the relevant evidence by which legal rights will establish the (Inaudible) the relevant evidence whether through testimony or through documents or judicial notice as a conclusion based on that evidence before a tribunal, the tribunal would have to find such as the boundary and not something else.

Is that it?

Mr. Rankin: The latter.

Justice Felix Frankfurter: All right.

Mr. Rankin: Now, I do -- I do --

Justice Felix Frankfurter: So that we are in the realm of evidence, whatever the -- the whole range of evidence, whatever may be deemed relevant evidence, and not in the realm of determination either by the Congress of the United States regarding the conclusion or by this Court as a matter of adjudication, is that right?

Mr. Rankin: I can't answer that yes or no.

I have to clarify in this regard.

The -- United States recognizes that if in 1845 in admitting Texas into the Union, they had said, so that there won't be any argument about the fact, “Texas from this date on shall have three leagues in the Gulf.”

The Congress had the power to make that policy regardless of what the policy of the other branch of executive was.

It did make it.

Texas had three leagues.

It's just that simple.

Now, if they could prove that, we wouldn't be here, but that isn't the fact.

Now, as to the others --

Justice Felix Frankfurter: And the opposite isn't the fact except on the argumentation of foreign policy nor the other consideration.

Mr. Rankin: No.

There is some very important facts --

Justice Felix Frankfurter: Yes.

But not --

Mr. Rankin: -- in regard to the admission, the joint resolution to be considered too.

Justice Felix Frankfurter: But would you disagree that all those other important facts of what I call ademption.

There's no determination by the Congress and no adjudication by a court for what we are discussing, isn't it?

Mr. Rankin: I would concede all of that, I would concede all of it.

I -- I think that in United States against California, the Court did say, the maritime boundary of the United States is three miles.

I do not rely upon that for the United States in this case.

I call it to your attention, but I do not think you examined the question of the Gulf at that time.

I don't think Congress felt that you examined the question of the Gulf at that time, and I don't think that concludes you.

If you should find from all of the evidence, and I do want to call attention that -- that the United States insist that one of the facts of life and of this Republic is the foreign policy of the United States throughout the years.

But I am not saying that Secretary can say black is white or that white is black.

It's -- it's got to be what it really was, but if the Secretary says, I think that's a fact that you have to take into consideration and apply it in applying the law.

I don't know whether I've clarified or made it more difficult.

What I am -- I am trying to point out, the fact that the boundary was the test, the question is whether they could prove it, and I think everything, when you boil it down, you're going to find in this litigation that it all -- there is one serious case, and that's Texas.

And you'll find that the only question is whether or not the United States did, in fact, approve a three-league boundary in 1845.

And if you will read the debates, you'll find that's what Senator Holland said, time after time was the test.

Texas would have to prove the acts that it did before which consisted of this statute that it adopted while it is a Republic.

It would have to go further than that.

It would have to prove that the -- the Congress of the United States approve that.

It said, “And time after time, both of those things were necessary.”

And unless they did it, they don't get three leagues.

I think it's just that simple when you get through.

And I was trying to eliminate these ideas about different kinds of boundaries because I don't think they can be urged in good faith in this Court.

I think it was said so many times and urged in trying to get this legislation pass that what they were talking about was legal boundaries, legal existing boundaries that that really isn't open to any question in this Court properly.

So you finally get down to the question of whether or not the -- the Congress of the United States did in fact place the stamp of approval on a three-league boundary for Texas in 1845.

And the United States think the evidence is very clear, it never did, that it was afraid of every Texas claim of boundary and protected the people of the United States in the joint resolution that it passed deliberately, purposefully and carefully and the very language of it.

So that there is nothing --

Justice Hugo L. Black: What protection?

I don't quite understand that.

What was the protection that the people of the United States will come on boundary of --

Mr. Rankin: It -- it's --

Justice Hugo L. Black: -- more than three miles?

Mr. Rankin: It didn't fix the boundary in any way in exact terms in the joint resolution.

It said that we take in the territory of the Republic of Texas which is properly within and rightfully belongs to the Republic of Texas.

And then it said, “It reserved the right to,” the word wasn't compromise, “adjust the boundary with any other country.”

Now, that was after debates of a long time in the Congress in which all kinds of questions were raised about the fact that Texas didn't have any lawful claim under international law to great areas that they were asserting under this boundary statute.

And they deliberately put that language in so that they could reserve the right in dealing with not only Mexico but all other countries of the world as to what the boundaries were properly belong to them and rightfully belong to them under international law, and it is so stated.

So they protected this very thing and did not accept it.

I don't mean that you should accept that all on my statement.

I am going to demonstrate that before this argument is through upon Texas.

But that is the point in this case.

Argument of James P. Hart

Mr. James P. Hart: Mr. Justice Black, may it please the Court.

The Solicitor has elected to pitch his case against Texas on the proposition that this three-league boundary shrunk when it came in the Union and we join the square issue with him on that on the facts.

When the Congress of Texas sat down to -- in 1836, December, it passed that Act.

It was looking at several things.

Things that were most conscious of was the Treaty between Spain and United States in 1819 which called to fix the boundary, the Louisiana boundary between Texas and Louisiana.

And it called to commence on the Gulf at the mouth of Sabine in the sea.

So the most -- the first thing they had to consider was that they -- the boundary calls commenced in the sea.

Now, the second thing they had to look up at was that in 1811 and 1812, the state boundary of Louisiana had been fixed by an act of Congress first, carving out the territory and then it made a mistake.

And so they look at that description which was a matter of law and that description called to commence at the mouth of the Sabine goes around Louisiana and call for all islands within three leagues.

So that were two things they had to look at.

Now, if they had heard anybody to look at letters of the Secretary of State in fixing boundaries, they could have looked at the letter that -- that Mr. Jefferson wrote when he was Secretary of State, the 1790 -- 1793 letter.

And what did that say?

It said, first, that the greatest distance to which any respectable set among nations has been given is human sight or 20 miles.

It said second, that the smallest distance is a canon shot or three miles.

It said, third, three leagues has some authority in its favor, and it says fourth, that we ought to call a convention of the nations to fix -- to fix the maritime boundary.

And said that we will reserve the right to fix our maritime boundary but tentatively and for the time being, we are fixing it at three miles, and they said three leagues has got a card in its favor.

So what did those people do in writing that Act.

They did a logical thing.

They commenced in the sea as the Treaty command them.

They tied on to the Court of Louisiana.

They concedes it to be which was three leagues and Jefferson had said that three leagues had some authorities favored, so they thought they were within the policy of the United States and we say they were.

Now, the next fact in these series of events which you're looking at for the annexation is the recognition of Texas by the United States.

Now, there was a great public interest at that time.

The conscious of the Nation had been shocked by the massacre at Goliad and the -- the tragedy of the Alamo.

And the people had been elated by the victory of San Jacinto.

The whole spirit at the time request for an expansion and the whole attention of the country was concentrated on these events going on along the frontier.

And so, on December the 19th, they passed this Act.

Now, we've just had a visit from the President of Mexico.

At that time, they had another visit from another President of Mexico, Sta. Anna.

The President of Mexico has brought a prisoner of war and appeared before Jackson and his cabmen.

The only time in the history of United States, that's happened and discussed this very question of the boundary of Texas.

It was a question of great public importance.

It was debated all over the country and the whole country knew about it.

And it passed this Act and they gave it wide circulation.

Jackson was charged by his opponent.

He was being -- having denied with Sam Houston his friend and -- and protégé to bring about this Texas revolution.

And so Jackson was cautious in recognizing Texas.

He waited some six or seven months.

And then on March the 3rd, just before his term expired, the Senate passed a resolution authorizing to recognize Texas and there appoint an agent.

And on March, the -- that was on March the 1st.

On March the 3rd, which was the last day of his great administration, a turbulent administration, won the grace from United States as the last official act of that administration.

At 11 o'clock in the evening, he called in the people from Texas to the agent and -- and have a glass of wine and recognized Texas.

That's the last thing he did.

And at that time, there was no protest, no diplomatic protest of this -- this Act.

And we say that's a positive evidence of United States foreign policy.

The normal way for a country to formalize its foreign policy and leads matter just by diplomatic protest.

And there was none.

And we say that's evidence that this Act did not violate the -- the foreign policy.

The next event of any consequent was the authority of annexation attempt in 1838.

After the -- after that recognition, the people of Texas, by a general vote, voted to come into the Union, and then there was an abrupt change of climate, a public opinion all over the United States, because Texas was injected into the called over a debate our slavery and slave territory.

And so -- and this -- a second thing involved this Texas Boundary Act, and that was that it had claimed a part of what's now used to be Mexico, the old Spanish town of Santa Fe.

And so the opponents of annexation argued that it was an expansion of slave territory that it involved a certain war with Mexico.

And that generate one of the most heated political controversies this country has ever gone through.

Congress was covered up with -- with petitions, memorials, resolutions.

One Congress had said they were measured by the cubic feet on its desk.

Over 600,000 signatures appeared from the congressional records against the -- the annexation of Texas.

Ex-president John Quincy Adams, then a member of Congress and the leading architect of our foreign policy up to that time, (Inaudible) from June the 16th, July the 7th, every morning until Congress adjourned and he himself killed annexation at that time, and that no -- at that time, there was no protest of this Act although it had been woven into all of these debates because of this question of the -- of the -- going north into -- beyond the Missouri compromise lines.

The anti-slavery -- the post slavery people said this would bring in free as well as slave territories.

The anti-slavery people said, “Well, the -- the free territories barren mountains been headed by wild Indian tribes.

And -- so that was a matter of public debate and that Texas Boundary Act was known throughout the United States at that time.

Now, the next consequence -- that of any consequence of the fact to be considered was the 19 -- 1830 Boundary Convention.

The Act itself, the final clause of it, if you'll notice, commanded the President of Texas, to call for a convention with the -- with United States for the purpose of putting that to be in line on the ground, and that was done.

The Texas Boundary Commissioner was instructed to follow the Texas Boundary Act, in that they had a treaty.

They had a joint commission appointed.

Mr. Hunter Miller, at page 136, I might -- might say that -- that this record here is the official record of the State Department published by Hunter Miller is -- is the -- the last words so far as United States and everybody else is concerned on -- on diplomatic foreign policy.

Mr. Hunter Miller says the boundaries of Texas, as claimed by the Government has thus described in the instructions of March 30 -- 21st, 1830 from (Inaudible) and Secretary of State, Memucan Hunt.

Memucan Hunt was the -- the boundary commissioner.

Justice Hugo L. Black: What are you reading?

Page 136?

Mr. James P. Hart: This is from --

Justice Hugo L. Black: Well, it's not in here.

Mr. James P. Hart: -- Miller -- no, sir, it's -- it's cited but in here.

This is from Miller, a Hunter Miller's book.

The Treaty is in documents of United States.

The present boundaries of Texas as fixed by an act of Congress are as follows.

Beginning at the mouth of Sabine and running west along the Gulf of Mexico, three leagues from land to the mouth of Rio Grande and it goes on around says -- and Hunter Miller says, “That description of the boundaries of Texas must be taken almost literality from the Texas Act of December 19th, 1836 to define the boundaries of Republic of Texas.

Justice John M. Harlan: Is that cited in your brief?

Mr. James P. Hart: Yes, sir, it is.

Justice John M. Harlan: What page is it?

Mr. James P. Hart: Page 106.

106 -- 136, page number (Inaudible).

Now, that Boundary Commission met.

They had a dispute there.

The -- the Treaty, the 1819 Treaty called for the west bank of the Sabine.

The Louisiana State Act called for the middle of the river and Texas Commissioner went over that contending for the middle of the river and the United States held him to the terms of his own boundary act which calls for that treaty in the west bank of the Sabine.

And -- and we say that at that time, there was no protest, no diplomatic protest of the three-league provision and that is evidenced that it did not violate United States foreign policy.

In 1844, annexation was revived.

It was revived by the policy of England.

England who was following the divide and conquer policy, and they have -- they sought to erect a buffer state between United States and Mexico to go from Texas west to the pacific and to include the northern tier of Mexican states.

And the -- the problems of Texas became the number one foreign relations problem of the Tyler Administration and dominated.

Senator Walker, who was a pawn of annexation, wrote a propaganda letter of which over 50,000 copies were spread all over United States and he got 2200 replies he said.

I want to review briefly the politics of that time.

Clay, who was the absorbed and obtained a nomination of the Whig Party did it on a platform against the annexation expressed to Van Buren with seeking a nomination of the Democratic Party on a platform against annexation, Polk, a dark horse sought the nomination of the Democratic Party on a platform favoring annexation.

And Tyler, the incumbent president, who had been repudiated by his own party, sought to organize a third party on the motto of Texas and Oregon.

Polk and Clay and Tyler run it all, Jackson intervened, persuaded Tyler to get out, and -- and they went on and -- and Polk won on the basis of annexation.

Daniel Webster said, in -- during election, it's either Polk and Texas or neither Polk nor Texas.

(Inaudible) wrote a poem to arose the abolitionist and so on.

And in that presidential campaign, this country turned one of the corners in its history.

It debated the policy of western expansion and it -- it decided on the policy of western expansion.

So that with Polk selection, the doctrine of manifest destiny and the western expansion became a dominant foreign policy of the United States.

Justice John M. Harlan: Can I ask you a question?

Mr. James P. Hart: Yes, sir.

Justice John M. Harlan: In the argument that you're making, are you accepting the view of the Government that the kind of a Texas boundary that you have to show historically was one that recognizes the territorial waters in Texas that extended the three-league?

Mr. James P. Hart: We distinguished between territorial waters and boundaries, Your Honor.

We say this Act did it but it didn't have to.

A nation may renounced part of its territorial waters apart of its -- what it gets under our boundary.

We say this Act established a valid boundary three leagues at seas.

Justice John M. Harlan: Territorial water boundary?

Mr. James P. Hart: It -- it did.

Yes, sir.

It didn't have to, but it did.

Justice John M. Harlan: Well, that's what the Government claims it didn't and that's what the Government claims that it's essential for you to show in order to bring yourselves within the SLA.

Mr. James P. Hart: We -- we defer with them.

We say if we establish a boundary, state boundary even though it's not within the State's functions to establish territorial waters, if we establish a valid state boundary that we're entitled to it at all.

Justice John M. Harlan: In other words, what you are arguing at the moment is that you can show that the United States, despite its general policy as to three-mile and it's recognized a territorial boundary, territorial water boundary in the Gulf of Mexico of three leagues.

Mr. James P. Hart: Mr. Justice, we contend that the United States did not have a three-mile exclusive policy at the time.

And then we argue that it actually established a three-league boundary in the Gulf.

We think the evidence of that infatuates that.

Justice Felix Frankfurter: You qualify (Inaudible) the Gulf, didn't you?

Mr. James P. Hart: Yes, sir.

Now, let's focus --

Justice Felix Frankfurter: There's already -- there's already a part of (Inaudible) absolutely three miles governed everything all the boundaries of the United States (Inaudible) from the Gulf.

Mr. James P. Hart: Yes, sir.

Justice Felix Frankfurter: (Inaudible)

Mr. James P. Hart: We establish that with one --

Justice Felix Frankfurter: -- unless the Government is right, three miles covers all the territory of United States.

Mr. James P. Hart: Yes, sir.

Now, focusing on the -- on the very act of annexation in -- in response to Mr. Justice Whittaker's question yesterday, the very answer to annexation, I want to go over the -- the time process.

The Texas Commissioner to negotiate annexation were instructed both the limits of Texas being defined by Act of Congress, you'll be governed by the -- that Act in specifying its boundaries.

The annexation process started on March the 1st, 1845, when the -- the Act -- Solicitor has identified with the adjustment clause, and it was passed.

On March the 18th, 1845, Polk -- Polk had named a man named Donelson as his agent accomplished annexation in Texas.

Donelson wrote and told, “It was upon Houston, he mainly relied to carry the annexation in Texas.

And then on April the 12th, Donelson had written Polk about Houston, says, “I left him under full conviction that if the adoption of our proposal of (Inaudible) upon his voting would be lost.”

On March the 5th -- May the 5th, President Anson Jones called an -- by executive proclamation for a convention on July the 4th, the purpose accepting annexation and adopting a -- a state constitution.

And on June the 6th, 1845, President Polk wrote to Houston urging him to support annexation and -- and this -- this calls about adjusting boundaries had bothered Houston.

And so he wanted to know what kind of adjustments they were talking about.

And so President Polk wrote to him this.

“You may have no apprehensions in regard to your boundary.

Texas once a part of the Union, and we will maintain all your rights of territory, and we'll not suffer them to be sacrificed.”

I mentioned the question of your boundary because you allude to it in your letter.

I assure you that it will be my duty as it will be my pleasure to guard your interest in that respect with vigilance and care.

Justice Hugo L. Black: What particular boundary (Inaudible)?

What was the (Inaudible)?

Mr. James P. Hart: The main bone of controversy was between Nueces River and the Rio Grande.

They were not particularly concentrating on the seaward portion of it.

But they did -- they did allude to the whole line.

Justice Potter Stewart: Who -- what was the percentage (Inaudible)?

Mr. James P. Hart: He was out of office but his --

Justice Potter Stewart: He's a private citizen.

Mr. James P. Hart: He's a private citizen but a dominant political figure and his former --

Justice John M. Harlan: He was a former president.

Mr. James P. Hart: He was a former president and his man was then president (Inaudible).

Polk carried out his promise to Houston.

In writing to his agent, Polk said to Donelson on June the 15th, of course, I would maintain the text and title of the extent he claimed it to be.

On June the 23rd, the Texas Congress met, passed a joint resolution concerning the annexation and ratifying the call for constitutional amendment.

On July the 4th, that -- that convention met, passed an ordinance accepting the annexation, went to work on the Constitution.

It was completely late August and on the second Monday of October, they held a general election in which the people approved annexation a new state constitution, and that came back on December the 29th, U.S. Congress a joint resolution was passed.

And on February the 16th, a small ceremony in front of the little Log Cabin capital, the republic flag was pulled down and United States flag went up.

Now, here is one of the most important documents I am coming to it in the chain of title.

On December the 8th, which was that same year, President Polk, in his second annual message to Congress, dealt with this very question of what territory came in -- with about Texas.

He was truly concentrating on the dispute with Mexico there between the Nueces and Rio Grande.

But here's what he said in his congressional message, he said the Congress of Texas, on the 19th of December 1836, passed an act to define the boundaries of the Republic of Texas.

And then this is important.

He said, “This was the Texas which by the act of our Congress of 29th of December 1845 was admitted as one of the States of the Union."

And we say that under the authority cited by the Solicitor, that was a -- an executive determination of a political question made at the time by the President's Office which is binding and covers this matter.

Justice Potter Stewart: Now, where was that -- where does that statement appears?

Mr. James P. Hart: In the -- in the Polk's second annual message of Congress.

Justice Felix Frankfurter: Would you mind reading that sentence, this was (Inaudible)

Mr. James P. Hart: This was the Texas which by the Act of --

Justice Felix Frankfurter: This was the Texas.

Mr. James P. Hart: This was the Texas which by the act of our Congress of the 29th of December, 1845 was admitted as one of the States of our union.

Now, the next event is the war with Mexico.

Justice Felix Frankfurter: And how this --

Mr. James P. Hart: Sir?

Justice Felix Frankfurter: This was Texas (Inaudible).

Now what is that -- where -- what was the (Inaudible) to define.

Mr. James P. Hart: We're here to say, he had already referred about (Inaudible) of the heading.

He referred to this Act of 1836.

He identified it in his message.

Justice Felix Frankfurter: So that Texas incorporates from your point of view --

Mr. James P. Hart: The Act.

Justice Felix Frankfurter: (Inaudible).

Mr. James P. Hart: Yes, sir.

Now, the next thing was a -- was the presidential message declaring war.

We say that if you're looking for evidence of foreign policy, the -- the supreme evidence of any foreign policy is a declaration of war.

And the message would be the -- the best evidence of what it was.

So in President Polk's message, declaring war on Mexico, a year or so after its annexation, said the regress of the wrongs of citizens naturally and in separative mends itself with the question of boundary.

Your settlement to one question and correct you to subject involves out of the other and then this.

The Congress of Texas, by Act of December 19th, 1836, had declared the Rio -- Rio Del Norte to be the boundary of Texas and this message of war he referred to this very Act, Solicitor says (Inaudible), as far as the maritime boundary.

And he says the couple of full variance has been exhausted.

And he goes on and he says that Mexico has invaded American territory and shed American blood on American soil.

Thomas Jefferson Green, who was the author of the Act in the Texas Congress, records that he later on discussed this with -- with President Polk and said President Polk had little out of legal international rights to the bank of Rio Grande.

He complimented me for my happy thought and being the author of said law and said without it, he never would have move up to that line.

Now, we come to Guadalupe Hidalgo at the end of that war.

And again, we say this is an act of foreign policy that is absolutely controlled of everything else in the case.

Polk had written to Sly Bell who was his first agent to negotiate the Mexican boundary claims that he should follow this Act and he identified it by name and date of everything.

And then he appointed to Mr. Trist who is the chief clerk of State Department to negotiate Guadalupe Hidalgo.

And he instructed Trist that he was to prevail upon the Mexicans to agree to the line established by the 1836 Texas Act.

And then the Texas Legislature passed a resolution instructing their senators as follows, that our senators be further instructed to oppose any treaty with Mexico, which may provide for resting the boundaries of Texas as establish by an act to finally bound of Texas approved December 19th, 1836.

And Article 5 of the Treaty resulted.

And it says that the dividing line between the two Republics shall commence in the Gulf of Mexico three leagues from land and further from Rio -- Rio Bravo.

Now, on that, I want to join issue with the Government on what they say about that Act.

They say that Act just goes out.

It doesn't bother anything.

Now, any lawyer knows that a boundary divides territory.

If it doesn't divide territory, it's not a boundary, just an act sticking out there.

This is something why you just make a tight rope, walk out and back and you can't step off either sides.

And we say that they had a good reason for putting out there.

The reason was that the Texas boundary was out there and Polk knew it, he'd referred to it constantly, he had instructed his men to follow it and he did follow it.

And he went out and tied on to a corner.

He tied onto the corner of the Texas Boundary Act.

Now, boundary has to close.

A boundary just doesn't go sticking out there, it has to close.

And -- and he closed it by this.

And we say that's inclusive of the Government's case that the -- that United States adopted and -- and put into effect the three-league boundary in the Gulf.

And if you look into foreign policy, you look to the President's declarations, his messages to Congress, you look to his declarations of war, and you look to the treaties approved by the Senate.

And there you find the foreign policy and it's a three-league boundary for Texas and the Gulf.

Justice Hugo L. Black: You're referring to (Inaudible)

Mr. James P. Hart: No, sir.

All of this is documented.

It's all historical.

Justice Hugo L. Black: Is there anything (Inaudible)?

Mr. James P. Hart: Well, if you're free with your interpretation of judicial knowledge, the best historical work on this, I want to call the Court's attention on the annexation.

If I -- Professor Justin H. Smith of -- of document of Congress, and he has made a detailed study and a very accurate and documented study of this whole subject of annexation.

That's very good.

Now, if you can take judicial knowledge of that kind of history, there's no -- there can be no argument about how you prove the facts.

Now, the very step in the negotiation of this Treaty --

Justice Potter Stewart: Along the line of Mr. Justice Black's question --

Mr. James P. Hart: Yes, sir.

Justice Potter Stewart: -- the United States of America (Inaudible) that be denied, asking on at least alternatively, that this Court (Inaudible)

Mr. James P. Hart: Yes.

Justice Potter Stewart: (Inaudible)

Mr. James P. Hart: Well, we -- we say that -- that our facts we think are so conclusive that we -- that -- that if we were in the District Court, we would be entitled to instruct the first, but we're not certainly entitled to a back line on this question of foreign policy of facts.

Justice Potter Stewart: Well, you also ask me for summary judgment in your behalf in your prayer?

Mr. James P. Hart: It's been so long since we made a prayer, Your Honor.

I forgot. I -- I think -- I don't remember.

[Laughs]

Justice Potter Stewart: Well, it wasn't entirely clear to me as to -- as to whether he shouldn't (Inaudible).

Mr. James P. Hart: He's starting --

Justice Potter Stewart: -- or whether he had -- need to --

Mr. James P. Hart: He makes it now --

Justice Potter Stewart: -- which the Government has.

Mr. James P. Hart: -- but we hadn't made it before, we'll make it now.

Justice Felix Frankfurter: (Inaudible) if you'll make it in the alternative --

Mr. James P. Hart: Yes.

Justice Felix Frankfurter: -- in answer to Justice Black's question, you said that -- assuming judicial notice, that's what I've assumed you would say was an allowable sweep, otherwise you wouldn't answer (Inaudible).

Mr. James P. Hart: Yes, that's right.

Justice Felix Frankfurter: You don't need any evidence or any -- any establishment of proof.

Other than that or which can read in books or things.

Mr. James P. Hart: All the books in the library, Your Honor.

Justice Felix Frankfurter: All right.

Is anything (Inaudible) my purpose really to -- your question is that -- that on your conception of what is proper judicial notice, the evidence is in our -- we can see (Inaudible) the evidence.

Mr. James P. Hart: Yes.

Now, in -- in this -- I want to point out --

Justice Felix Frankfurter: You're thinking for Texas here --

Mr. James P. Hart: Yes, sir.

Justice Felix Frankfurter: -- because Louisiana is original, it had a different --

Mr. James P. Hart: That's right.

I can only speak or Texas.

Justice Felix Frankfurter: You -- you have no such oral testimony as Louisiana does.

Mr. James P. Hart: We don't -- we don't have any oral testimony.

Now, the very step in the negotiation of the Treaty show that they were going out to a line and tying on to a line.

Mexico proposed three leagues off of the Nueces River.

In other words, their proposal wasn't to come to Nueces River and go out three leagues.

United States opposed three leagues off of the Rio Grande River and they were going out to tie onto a line, that line was this Texas Boundary Act that everybody knew about.

Now, I want to read a brief with this British protest, and I don't -- we -- we differ sharply with the Solicitor's construction of that British protest.

We say that strengthens our case.

And here is the direct language of that protest, “I've been directed,” this is the British, “I've been directed the State, United States Government that in order to prevent future misunderstanding, Her Majesty's government think it right to declare that they cannot acquiescence in the extent of maritime jurisdiction assumed by the United States and Mexico in the article in question.”

And here is the reply from Buchanan, Secretary of State, “In answer, I have to state the stipulations the Treaty can only affect the rights of Mexico and United States if, for their mutual convenience, it has been deemed proper to enter into such an arrangement, third parties can have no just cause of complaint."

The Government of the United States never intended by this stipulation the question of the rights that Great Britain or any other power may possess under the Law of Nations.

Now, we say that that's a positive statement of the foreign policy of United States that there wasn't a three-league limitation in the -- in the Gulf, because had there been, they would have been questioning by putting this into treaty.

And they have replied over protest that this Treaty did not violate Britain's rights and then in spite of that protest, they went ahead and put it in the Treaty, and they put it in the Gadsden Purchase, and they put it in all these boundary commissions down through the year since then.

And we say that that protest absolutely nails down the Texas case that in response to a protest from a foreign power, they insisted on that clause in the treaty and kept it and replied to Britain that it was no concern of yours.

Now, one good reason that that reply was good was that when Texas was recognized by Great Britain back in 1837, a copy of the Texas Boundary Act had been served on Britain at the time, and this was some 12 to 14 years later.

And they had never protest that Act.

As a matter of fact, no nation protested the Texas Boundary Act.

Justice Hugo L. Black: That was more than a Texas Boundary Act, wasn't it, it was a Texas and Mexico Boundary Act?

Mr. James P. Hart: Mr. Gadsden -- yes, sir, it was.

Justice Hugo L. Black: So Mexico on the Gulf up to nine leagues of Texas.

Mr. James P. Hart: They do, they assert that and are maintaining sovereignty and jurisdiction there now.

I am apparent most cannot go in there, although the State Department has protested.

Justice Hugo L. Black: They have protested?

Mr. James P. Hart: Yes, sir.

Justice Hugo L. Black: Is that in the record?

Mr. James P. Hart: That's in their argument.

Yes, sir.

Now, there's one other matter I want to call the attention of the Court.

Congress authorized the publication of a document entitled “Boundaries, areas, geographical centers and -- and altitude of United States and several states”.

And that said the area which Texas brought into the Union was limited as -- as follows as defined by the Republic of Texas December 19th, 1836 and then it says “Beginning at the mouth of Sabine River and running west along the Gulf, three leagues from land to the place of -- to the mouth of Rio Grande”.

And then I call your attention again to the State Department map on page 111 of the Texas brief which has recognized it.

So we say that -- we think we've absolutely nailed it down.

And I don't see how the Court could find that boundary strongly.

When the commissioners who negotiate with the annexation were told to insist on that boundary, when the President of the United States in -- in effort to pass it, assured Sam Houston that the boundary would be respected.

When they came in, when they went to war over a portion of that boundary and in the war message identified the Act and -- and when the President in a message says, “This is the Texas.”

And then when the President in a treaty with the foreign nation instructed its negotiator to incorporate that boundary into the Treaty and it was incorporated and it stayed there over a protest.

We think that the strong case of foreign policies you could possibly make.

Now, on the negative side, we say, we -- we say to this, that the Solicitor has not done a single piece of evidence before 1855.

It says, as a foreign policy of the United States that no nation can go beyond three miles.

We just hadn't got it.

The first time that United States asserted that no nations go beyond three miles of 1855.

We say that Jefferson's letter stated exact contrary.

Jefferson's letter said, “We're asserting a three-mile minimum, and the Nations can go further and we are reserving a right to go further.”

And that was the foreign policy.

And so we say that the Texas Act was in -- in constants with and in harmony with the foreign policy of the United States.

And it was so intended to be and it was.

And -- and we say further that there's no three-league at that time.

We prepared a table on the general international law, which appears in the back of our -- our book which cites some 100 odd parts to the fact that at that time, a three-league boundary was permissible boundary.

Under the circumstances, we feel like that -- that Texas is entitled to judge from this case.

Justice Hugo L. Black: Can I ask you a question?

Mr. James P. Hart: Yes, sir.

Justice Hugo L. Black: If the Act (Inaudible).

Mr. James P. Hart: The Act means that -- and that all the -- all the record therefrom, as you pointed out to us is one way on that being the fact, why did Congress leave it to the court to determine, what was left to determine by Congress?

Well, Your Honor --

Justice Hugo L. Black: With all the judicial knowledge and everything else, there is one way.

Argument of Price Daniel

Mr. Price Daniel: That -- that brings us to the second part of our argument which is -- which is congressional intent of Senator -- Governor Daniel who was then a senator in response to this Act.

He's going to argue and cover that part of the case.

And I'll ask him to reply to your question as he develops his case.

Justice Hugo L. Black: Governor Daniel.

Mr. Price Daniel: Mr. Justice Black, may it please the Court.

I assure you that our credibility as a lawyer and not as co-sponsor of this legislation nor as a witness.

And I shall accord to the record only in what I present to the Court.

I shall refer only to the case of Texas and to the intent of Congress with respect to Texas and its enactment of the Submerged Lands Act.

And Mr. Justice Black, I believe you will see from the record, which will be cited, that Congress did, as a matter of fact, have the very issue of how far this grant should go as to Texas and did decide the issue because it was joined in the Congress on four different occasions.

The best evidence, of course, of the intent of the -- sir.

Justice Hugo L. Black: (Inaudible)

Mr. Price Daniel: The issue was joined.

And I'll come to that in a minute.

On four different occasions, on the floor -- three on the floor of the Senate, one on the floor of the House.

The best evidence, of course, in the intent and effect of the Act are -- is the wording of the Act itself that Congress had intended to limit Texas three miles and all the States it would have stopped at the words -- after the words “three geographical miles distance from the coast line of each State.”

But it did not so intend and it did not so stop.

It went further and said that the grant should extend beyond three miles in a case in such cases where a State's boundary, not at the time, but as it existed at the time it entered the Union, it extended beyond three miles into the Gulf of Mexico and not to exceed three leagues.

Now, the record cited in our separate briefs show that those terms were written into the Act by Congress and recommended by President who understood the facts and the history related here by Attorney General Wilson who understood that President Polk had promised Sam Houston who, although not president, the record show that annexation depended on his support.

And there is cited here by the Solicitor General a letter saying by the U.S. Representative that “I left Sam Houston believing he would not deport annexation.”

That was in March, I believe.

Polk, he told him to travel.

They want us to be sure and guaranteed to support the boundary set up by the Republic.

And President Polk wrote in June saying, promising Houston, as you see here on our brief from the letter of the Attorney General as quoted that “I will support these boundaries.”

Unknown Speaker: What page is it?

Mr. Price Daniel: 38, I believe.

I'll check on it.

No, that's not the one.

You'll find -- I -- I'll get it for you in just a minute.

Now, all that was before the Congress and before the Committees.

And so, regardless of what my -- be shown as to other States, this matter what boundary was intended by these wordings, it words in the Act of the Texas or certainly, pointed out to the Committees and to the Congress.

That's on page 98, Mr. Justice Black, where the Polk's letter is cited to Sam Houston.

And I call your attention to the facts that after that Sam Houston did support annexation, as stated, the best evidence of this intent of the wording of this Act is the intent, is the wording itself together with the fact, the undisputed fact before the Congress that Texas boundary did exist at the time it entered the Union at three leagues.

It was so provided in the laws of Texas both prior to and at the time of annexation.

The next best evidence, of course, confirming such intention of Congress at Texas, we find in the Committee Reports, this Court has held that Reports of the Committees of Congress are the most reliable evidence of congressional intent outside the terms of the Act itself.

I hold here, if it please the Court, the two Committee Reports, one from the Senate, one from the House on the intended effect of this bill.

Both Reports describe the grant as extending not the present boundaries, not the national maritime boundaries or national boundaries except the Great Lakes or to territorial water boundaries, but to historic boundaries of the respective States.

Both Reports refer to the three-league boundary of Texas as the extent of the grant of Texas under the language used and decided.

The Senate Report --

Justice Hugo L. Black: (Inaudible)

Mr. Price Daniel: I am coming to that sir.

Page 7 of the Report -- now, the Senate Report.

At page 7, right about the middle of the page is a table showing the total acreage that would be conveyed to the States within these traditional historic state boundaries.

And then it refers to Appendix F which you will find on page 76, and in that appendix, in the Committee Report is the acreage figured for the State of Texas as 2,444,000 acres.

Down at the bottom of the appendix -- of this Appendix F, you will find the language which includes these words, “Original -- only original state boundaries have been used.”

This is on page 76.

Justice Hugo L. Black: (Inaudible)

Mr. Price Daniel: Do you have Report 133 of the Senate --

Justice Hugo L. Black: Yes, part 2.

Mr. Price Daniel: Part 2, well that's minority report.

Justice Hugo L. Black: Minority.

Mr. Price Daniel: Yes, sir.

I've read it from the majority report.

Mr. Justice, in order to save time may I read it so you --

Justice Hugo L. Black: (Inaudible)

Mr. Price Daniel: Well, I -- I'll leave mine with you.

Here's what it says, “That original -- only original state boundaries have been used.

These coincide with the three-mile limit for all States except Texas, Louisiana and Florida gulf coast.

In the latter cases, the three-league limit,” and this is important wording in this Committee Report, it appears to me, “in the latter cases, the three-league limit, as established before at the time of entry into the Union, has been used.”

Now, here's a House Committee Report.

On page 57, you'll find the same table only expressed in square -- in -- in square miles instead of acres.

These acres --

Unknown Speaker: What page?

Mr. Price Daniel: Page 57 of the House Committee Report on H. R. 4198, which is the same bill, that is Title II, I believe, that was passed.

Page 57.

It's the same table except that as for -- that is expressed in square mile instead of acreage.

The Solicitor General will not dispute that the acres figured here and the square miles figured here in this Committee Report are exactly what's within three leagues from shore in the Gulf of Mexico.

If it is three miles, it'd only be one-third that much.

Now, the Solicitor General -- indeed the Committee's table, as I have said, specifically set that out that they did use the three-league measuring in figuring this acreage.

Justice Felix Frankfurter: Would you a take a minute --

Mr. Price Daniel: Now, back -- sir.

Justice Felix Frankfurter: Governor Daniel, would you take a minute and state what the common area under this table (Inaudible)?

Mr. Price Daniel: The Reports refer to those tables as -- you see they total up -- both Reports, the total acreage given to the States within the historic boundaries and the total acreage that'll be out on the outer shelf.

Justice Felix Frankfurter: What I want to know is did the report say (Inaudible).

Mr. Price Daniel: Well, that certainly is in conclusion that I draw from it.

It's certainly evidenced that that's what the --

Justice Felix Frankfurter: But you must have some the language --

Mr. Price Daniel: Oh, yes.

And I --

Justice Felix Frankfurter: -- be hooked on to the case.

Mr. Price Daniel: Well, in figuring the acreage covered by the bill, that's just what they do.

Now, then, coming back to the Senate Committee Report, in the Senate Committee Report, on page 65 in Appendix E, you will find a statement which read as follows.

“Texas boundary was fixed at three marine leagues into the Gulf of Mexico at the time it was admitted into the Union in 1845 by the annexation agreement.”

Now, the same -- the same language appears over here in the House Committee Report on a different page, page 43, “The Texas boundary was three leagues in the Gulf of Mexico at the time it was admitted to the Union.”

So clearly, this is evidence of what boundary these two committees were talking about when they used the word “as they existed at the time they were entered -- entered into the Union”.

Justice John M. Harlan: (Inaudible) Submerged Lands Act itself recognizes the validity of the historic Texas claim, do you?

Mr. Price Daniel: Yes, sir, you read the -- the congressional debates especially the attempt to change the Act and to provide amendments for three miles for all the States.

I believe, Mr. Justice Harlan, you will come to the conclusion that the issue was met head on the floor protects, it not just gives the chance to go to Court, it is met head on.

Texas entitled this because the President of the United States promised to defend this boundary.

And the Supreme Court of the United States in the Texas case did not dispute those boundaries.

As a matter of fact, it cited the boundaries out three leagues and said, “We assume that Texas, as a republic, had all of the land within this marginal bill but we hold that the property rights and all the political rights passed to the United States.”

Now, it was that same three leagues of land that this Court held passed by admission to the United States that Congress was restoring to the State of Texas or was granting.

We -- we certainly do not contest with what it was granting Texas on the basis that we did in good faith for over 100 years thought that we owned it.

Justice John M. Harlan: (Inaudible) considering the legislative history (Inaudible) that the effect of the Act was simply to show the matter into the Court.

Mr. Price Daniel: Sir, the only thing I have to stand on right here is that all Senators did not say it and that the wrong impression had been left to this Court with your respected Solicitor General as to what was said in that connection.

And we have here, in the back of our brief, we've gone into all of the congressional records and hearings.

We've compiled a table here of just what they did say on the floor of the House and in the committees about these three-league boundary.

And that's on page 235 of the Texas brief, the big yellow brief.

Now, of course, you don't have time to -- to go and read all these records.

I simply ask the Court this.

That in anything said by the Solicitor General about what was said on the floor, I simply ask that you refer to this table.

It -- it covers many pages.

There are 93 separate references of the three-league for 10.5 miles for Texas as being the effect of this Act or -- or in connection with the Act.

And I think that you will come to the conclusion that the Solicitor General has not fairly stated the matter as to what was said on the floor.

For instance, he used Senator Cordon's statement a moment ago in showing that it's just a matter to be left out to the Court and that he had some doubt about it.

Also, he cited a statement from then -- then Senator Daniel.

And on page 37 of our brief, let me read the -- the statements exactly as they were.

Mr. Douglas, page 37 of Texas brief, “I should like to ask specifically what is your understanding of the distinguished Senator from Oregon as to what this provision does to the boundary of Texas.

What does it mean in the case of Texas?”

Mr. Cordon, “The Senator from Oregon, is not going to tempt the boundary of State of Texas on the floor of the Senate.

The boundary of the State of Texas is the boundary which was established for the State of Texas when she voluntarily pulled down her own flag and ran up the flag of the United States.

That boundary has not changed.”

Mr. Daniel, “It may be that the Senator from Illinois wishes to make certain that the State of Texas does not claim that its boundary, at the time of its admission, extended beyond three leagues.”

And I -- the record shows that he was assured that it did not.

Then Mr. Douglas says, “Mr. President, does the Senator from Oregon, Mr. Cordon, the manager's bill, agree with the interpretation of the Senator from Texas and I've said all about what our boundary was and how far it would go under this bill.”

Mr. Cordon, “The Senator from Oregon is not going either agree or disagree.

The Senator from Oregon gives his opinion that the argument seems to him to be sound but he is not passing upon the question because he does not have the power to pass on it.”

Then Mr. Cordon, “With respect to the three-league limit, there was the Treaty, the Treaty of Guadalupe Hidalgo.

Yes, the Treat of Guadalupe-Hidalgo, that Treaty recognized the boundary line extending three leagues from the mouth of the Rio Grande into the Gulf of Mexico.”

Now, I -- I can't spend anymore time on citing these but they are compiled in our appendix here.

And I do refer the Court to it if you have any question as to what was said about this Texas three-league boundary and the effect of this bill.

Now --

Justice John M. Harlan: Do you know --

Justice Felix Frankfurter: (Inaudible)

Mr. Price Daniel: I understand that in our -- I hope --

Justice Felix Frankfurter: You are merely suggesting the (Inaudible).

Mr. Price Daniel: I meant no offense but the 6000 pages of committee hearings and all, and that's why we're saying that we had gone on a great trouble to try to extract these and put them there just for comparison.

I certainly understand that.

Justice John M. Harlan: In other words, Governor, just so that I understand, the essence of your argument is that this Act properly construed by the legislative record -- legislative history, itself, in and of itself, gave these rights of three leagues in the State of Texas.

Mr. Price Daniel: Yes, sir, and you will find both the proponents.

There were 40 co-authors of this bill.

You'll find a statement on behalf of the proponents, Senator Holland to that effect, that it will do it and the unusual thing about this bill in the Congress is that the opponent said so to.

That was their main objection for the bill.

They wrote a letter.

Mr. Justice Harlan, they wrote a letter to the President of the United States during the 27 days of debate right in the midst of it, the 20 main opponents of the bill in which they said this bill, as it's worthy, is going to give Texas submerged lands of 10.5 miles beyond the three-mile belt of territorial waters, and said that's going to interfere with foreign policy.

And what do you -- we think you ought to do something about it.

The State Department says and the Solicitor General says it won't be a good thing.

It might be some conflict with our foreign policy.

The President of the United States wrote back to Senator Taft, the majority leader, saying that he had supported the conveyance of these lands up to the historic boundaries and that he supported the bill and he specifically mentioned Texas three-league boundary.

And said -- and quoted a speech he had previously made in which he had recognized that Texas, when it entered, had three leagues and attempted to retain its lands out to three leagues.

That was part of the legislative history.

So that's why I say that in the history of this Act as to Texas, you have it undisputed.

As far now as the committees and the members of Congress are concerned that the wording of the Act would go three leagues.

Justice Hugo L. Black: (Inaudible)

Mr. Price Daniel: Well, I am coming to that.

Justice Hugo L. Black: (Inaudible)

Mr. Price Daniel: I am coming to that.

Justice Hugo L. Black: (Inaudible)

Mr. Price Daniel: The Congress --

Justice Hugo L. Black: (Inaudible)

Mr. Price Daniel: Sir, let me -- if I may, I'll come to that.

Justice Hugo L. Black: (Inaudible)

Mr. Price Daniel: Yes, sir, I hope that I can remove a little doubt before my 15 minutes is up.

The obvious fallacy in the Government's argument is that the moment -- the words, Mr. Justice Black, intended that -- to show this are the words “the boundary beyond three miles in a case where they existed as they existed at the time a State entered the Union”.

Now, the Solicitor General talks about at the time -- at the time -- I've read you what the Committee Reports say here, he -- he detracts from those Reports because they're into the appendices of these Committee Reports but as the Committee Report itself showed, they were written by a committee considering the same language, the same bill, and they incorporated it, just like the Solicitor General has some appendices in his own brief, and I would imagine he wants the Court to consider and that's what the Committee did with these appendices from which I read a moment ago.

He says “at the time” leaving off some very important words “boundary as it existed at the time”.

There are two past tenses there, “existed at the time the State became a member of the Union”.

Now, the fallacy in his argument is this.

He assumes that a State's boundaries are fixed at the time the moment you come in and that you can shrink boundaries.

Of course, that's in order to put in his unheard of theory of boundaries shrinkage by operation of the law, of not by operation of law, but by foreign policy.

Now, here's the fallacy I think.

I'll check the admission of all the States including Alaska and Hawaii and I say to the Court that you don't find where any State has ever admitted to this Union without its boundaries being fixed, prior to the moment of admission until the final act of admission.

The Solicitor General has simply ignored the congressional practice which has been followed through the history of this country, of letting the people of a territory set up its constitution.

If it's a -- if it's a U.S. territory, the boundaries are fixed usually in the Enabling Acts or in the State Constitution which is written before the State finally comes in.

Take for instance here the other day as to the Hawaiian Islands. Congress passed the Enabling Acts saying what boundaries would be admitted.

But it required the people of Hawaii to both, to change their previous boundaries and set the boundaries that were to come in and did not allow the present issue of proclamation of admission to the Union until the people of Hawaii had changed the boundary.

The whole point is simply this.

That in the practice of Congress which was certainly known to Congress when they wrote these words into the Act, it was to allow -- to fix the boundaries beforehand, before the final separate Act of Admission, the moment of admission comes about.

And so clearly, there had to be some boundaries fixed and have been in the case of every State.

Now, telling the Solicitor General to show this Court when stated where the boundaries of a prospective state were not fixed prior to the moment that the final act of admission took the effect.

Certainly, that is the case in Texas, an independent nation at the time that we came in and certainly that was the intent of the Congress to go to those boundaries fixed at the time they entered.

They had to be fixed prior to that time in a Constitution or in some enabling act or something.

Now, that was the interpretation.

That was also stated on the floor of the Senate.

On the floor of the Senate, Mr. Senator Anderson asked -- Senator Anderson asked, “Why don't you just put the historic boundaries and write them into this bill.”

He replies on page 51 of the Texas brief.

And I would not quote it here except that the person making the reply on the Senate floor was a co-manager and co-sponsor of the bill and -- and gave exactly the reason the terms we used.

Starting down on page 51 about the second paragraph of the quote, now, this is in reply to Mr. Senator Anderson's question he's asked on page 50, “Why not simply include the term historic boundaries in the pending measures?”

Well, on 51, the Senator from Texas, a co-manager of the bill has said, “Of course, Texas boundaries did exist at three leagues at the time of annexation, and the Texas and Florida three-league boundaries were heretofore approve the Congress but that is history.

As the Senator from Florida said, the intention was the rights specifically into the joint resolution what the office had said all along would be its effect.

That it covered only and within on the historic boundaries.

The only way I know to describe the word “historic” by means of definition is to say as the boundaries existed when the respective States entered the Union are heretofore approved by the Congress.

There's good reason, Mr. President why those words should be used.

The Supreme Court of the United States has said in several cases that the Federal Government can do nothing to change the area of a State after it has entered the Union with fixed boundaries except with the consent of the State.

There's another line of cases which hold that if the boundaries are set out in the State Constitution such as the Constitution of the State of Florida which is approved by the Congress of the United States, then the United States cannot change those boundaries without the consent of the State.

That is why the terms “now impaired” are used.

This would -- words mean nothing if they had not been spoken on the Senate floor by a committee member and by a co-manager and author of the bill.

That --

Unknown Speaker: (Inaudible)

Mr. Price Daniel: In the Report as to -- only what I have read here with respect to Texas, that I recall at this time.

They were taken from court decisions, but I will say this, Mr. Justice Black, this was not challenged at all, and you'll see in reading all these excerpt from congressional history that it was not challenged.

They are as to the -- as to what the author has said was the meaning of the word why they were used.

They are taken from court decisions which have been written in cases.

This was still a reply to Senator Anderson with situation similar to the present one, and quoting still, for instance, in New Mexico versus Colorado, the Supreme Court said that the right of a State upon its admission into the Union to rely upon its established boundary lines cannot be impaired by any subsequent action on the part of the United States.

And then -- and in New Mexico versus Texas, New Mexico, when admitted as a State in 1912, explicitly declared in its constitution, that was, of course, before the final Act of Admission, that its boundary ran alongside 32nd parallel to the Rio Grande.

This was confirmed by the United States by admitting New Mexico as a State with the line thus described as its boundary.

Now, that was the reply as to why use those boundaries.

And you will find that Senator Anderson later on after that in the excerpts he himself interpreted this bill as given to Texas three leagues or to some States 10.5 miles.

You'll find a statement quoted here because Senator Anderson, it was who offered the First Amendment on the Senate floor to cut all State back to three miles.

Then the next amendment on the Senate floor was offered by Senator Monroney.

And then it cut all States to three miles.

And he argued, “Texas is going to get three leagues, it ought to get it.”

Then the next one was offered by Senator Magnuson.

And he argued the same thing and all his amendment would have done, it was the short one, would have just trimmed everything back.

It would have stricken out all of the 171 words the Solicitor General now asks this Court to strike out in your decision, in the decision he asked this Court to make.

But the Congress -- the Senate of the United States said, “No.”

And here's the important part.

In this last Magnuson amendment, the issue was drawn on what Texas ought to get how far it ought to go under all principles of equity and justice and under this boundary which was recognized by our Presidents including the President of the United States who had written this letter.

And President Polk back there at that time and which exists in our Treaty of Guadalupe Hidalgo, as Mr. Justice Black says that Treaty, I mean brought out, that Treaty still in existence.

If you have to have a national boundary in the Gulf of Mexico at three leagues in order for best to win this lawsuit, we certainly have it.

That Treaty is still in existence and Mr. Jack Tate of the State Department appeared, he was deputy legal adviser before our committee, not by letter but so you can examine it.

And he said specifically that the Treaty of Guadalupe Hidalgo was still in existence.

The Solicitor General quotes only three words he said in his reply brief, but here is what he continued to say, “I do think,” here's what Mr. Tate said, “The United States recognizes the Treaty as setting the boundaries between Texas and Mexico.

I do not think the State Department has had occasion to pass on the question as to territorial waters claimed by the Texas vis-à-vis of the Nation because of Guadalupe Hidalgo.”

This is very important because there, you have the State Department's legal counsel sent by Mr. Douglas to the Committee himself drawing a distinction between territorial waters and boundary and showing that territorial waters or maritime jurisdiction can exist at a lesser distance than boundaries.

The Treaty only purports to set boundary as between the United States and Mexico.

We recognize that boundary has been set by the Treaty but I think we have not had to pass on the question of whether the territorial waters by reason of it.

In other words, he says the boundary is definite.

But as far as the rights of the territorial waters on account of our policy is an unsettled thing.

We do not agree with Mexico on it and -- but Mexico is still claiming that, it's unsettled but boundaries, these three leagues out the national boundary and as General Wilson said, it came from the Texas Boundary Act.

Now --

Justice Hugo L. Black: (Inaudible)

Mr. Price Daniel: Yes, sir, it is, but the protest is only in this language.

It does not protest the three-league boundary.

It simply says, the United States reserved its rights to use the waters in accordance with its contention and foreign policy.

It does not protest the boundary for other purpose.

Now, I would like to hurry on here to say that in the -- in our brief, we have a whole section on congressional intent that shows that these historic boundaries were all put in the Committee Record by the Committee Counsel with Texas being less than to three leagues.

Senator Holland on the floor used the map, stayed on the floor for weeks as shown by the record and which Texas has shown as going three leagues under this bill.

I think the clearest evidence is the fact when the issue was joined Congress voted not to limit to three miles.

And certainly, in addition to that, we have contemporaneous construction by those who administered the bill, the Secretary of Interior as we show in the brief all these leagues form apply to three leagues to Texas.

He was given the outer shelf to administer.

All his leagues form for four years, Texas has made nine separate lease sales by public auction in this area in four years.

And we don't have any all out there yet between three miles and three leagues, that's the less I heard.

But those lease sales who were given to the Secretary of Interior.

He put out a statement they would not lease any closer to shore than three leagues, that he recognized Texas boundary of three leagues in his contemporaneous construction of the Act which he has to write and which Eisenhower Administration (Inaudible) to the Congress.

And the present case from contemporaneous construction that they signed the bill, that he was glad to restore, I believe he said, these lands to the States in accordance with the claims that they've made over the years.

And even the year this suit was filed, the President wrote the Governor of Texas saying, and it's in our brief, “In further response to your telegram, it is my view,” This is the President of the United States in power and the Secretary of State, as I understand it in foreign policy matters.

“It is my view, Texas should have the right to explore and exploit the submerged lands extending seaward of the sections coast line for a distance of three marine leagues of the Gulf of Mexico in any action that it maybe necessary for the Attorney General to take by reason of the June 24th order of the Supreme Court.

The statements I have publicly made which bear upon this controversy will be presented to the Court as well as statements by the Attorney General which as you know accorded with my view,” and they did.

I have cited -- we've cited in this brief Attorney General Brownell saying it would go three leagues as the Texas Secretary McKay, “which you know accorded with my own views,” I'll leave it to the Court as to how vigorously, the Solicitor General has presented the views of the President, but I do say that Congress and the President, the policy making branch of our Government on matters of boundaries and domestic matters of this kind as to the Continental Shelf have decided this issued in favor of Texas of three leagues at the time.

My time is up, isn't it?

Is this the end?

Justice Hugo L. Black: (Inaudible) as theretofore proved by Congress, doesn't it?

Mr. Price Daniel: Yes, we do in our brief but --

Justice Hugo L. Black: You do.

Mr. Price Daniel: We -- we don't need -- we can't stress everything --

Justice Hugo L. Black: I -- I just wondered if you are --

Mr. Price Daniel: We do --

Justice Hugo L. Black: -- ignoring that.

Mr. Price Daniel: No.

We do in addition to the fact that the boundaries of this league at the time we entered, we certainly rely on the fact that Congress approved them when they took Guadalupe Hidalgo Treaty and the Senate approved that going out three leagues.

Justice Hugo L. Black: I just want to be sure.

Mr. Price Daniel: Thank you, sir.

And then Congress passed, and we listed, numerous bills and appropriate and money to carry out the Sabine with that boundary of three leagues out.

Justice Hugo L. Black: Thank you.

Solicitor General.

Rebuttal of Rankin

Mr. Rankin: Justice Black and may it please the Court.

I'd like to turn first to page 52 of our --

Justice Felix Frankfurter: You're taking (Inaudible) state, are you?

Mr. Rankin: Yes.

Page 52 of the Government's brief.

In recalling the statements --

Justice Felix Frankfurter: The original brief?

Mr. Rankin: Yes, sir.

Recalling the statements of Governor Daniel that he just read in regard to the meaning of the bill, you see the -- some language was used with regard to this particular problem of what this bill did, whether this bill itself, without anything more, gave Texas three leagues.

Of course, Texas boundary didn't exist at three leagues at the time of the annexation, and that Texas before the three-league boundaries were heretofore approved by Congress.

That is history.

It was not written by this bill and cannot be erased by this bill.

The purpose of this bill is to like a law of state ownership for the future.

It didn't have to put to all navigable waters.

They used the term navigable waters within boundaries that exist heretofore as the existed at the time the States entered in Union, at the time when those boundaries were heretofore approved by the Congress of the United States.

Now, time --

Justice Hugo L. Black: Have you joined the issue on that statement, as I understand it, as it existed at the time the State entered the Union?

Mr. Rankin: Yes.

Justice Hugo L. Black: Do you mean that you join the issue on saying if the boundary or assertion of boundaries now that the State has (Inaudible), but it doesn't -- the boundary of the State is not decided by what it was indeed before it came in?

Mr. Rankin: That is our position, Mr. Justice.

It was suggesting during the argument here by Senator (Inaudible) that it was the position of the United States that the President of the United States (Inaudible) ceratin statements with regard to foreign policy could have affected this boundary.

The United States recognized that if Congress had fixed the boundary of Texas, as I have described before in the argument, and said that it was three leagues in terms that -- there couldn't be any question about that.

The President had no power to change that.

We don't believe that under the principles of law, properly applicable to boundaries that the President couldn't make any such change.

The question is whether the Congress did do it and if it doesn't -- if Congress doesn't speak in regard to the maritime boundaries and say the Congress has spoken way back in 1794 about three miles, if it didn't, the President or the Secretary of State actually as his agents can make the foreign policy of the United States to affect the maritime boundaries and he did.

But we don't' say that the President had any power to say that territory of Texas should be less or more when the Congress of the United States had spoken as to what the territory of Texas would be once it's submitted into the Union.

Now, there's been a question as to whether we were properly presenting in this Court what the parties have said in the debates about this legislation.

It is terribly important as to what was represented or said three times the Congress objected the idea of it being limited to three miles.

We concede that.

There isn't any question about it.

We don't say this law said they can't have three leagues if they can prove it, not for a moment, but that was the only issue that the Congress rejected.

That was all that was involved in those amendments.

They wanted to put a bar -- barrier and say regardless of what they construe of their history of the law that's applicable, anything else that they can produce, they can't get more than three miles, it doesn't make any difference.

That isn't our position before this Court at all.

If you're satisfied that under the law properly after we're here, they do prove that, if we were to come to the same (Inaudible), the State did have such a boundary at the time they became, not before, at the time they became a member of the Union.

The State can't be inside and out the same time if -- many things happened when it comes into the Union.

That's the language they chose.

Now --

Justice Hugo L. Black: Do you have -- do you deny that the argument they -- they made is up to the (Inaudible) the State of Texas came into, that it accepted as a State, that it did have a boundary of three leagues (Inaudible), wouldn't that be true?

Mr. Rankin: Oh, yes.

We --

Justice Hugo L. Black: Do you concede that?

Mr. Rankin: No, we -- we deny it.

Justice Hugo L. Black: You deny that.

Mr. Rankin: We say that they couldn't possibly have obtained such a boundary that was legally enforcible and valid --

Justice Hugo L. Black: Well, I am not talking --

Mr. Rankin: -- against the --

Justice Hugo L. Black: -- about the -- after it was entered (Inaudible) --

Mr. Rankin: Yes, but I am --

Justice Hugo L. Black: -- prior to its (Inaudible).

Mr. Rankin: No -- That's right, Mr. Justice.

Justice Felix Frankfurter: Because of the -- because of the -- the policy of our nation against the whole world regarding three miles, is that right?

Mr. Rankin: That's right.

We wouldn't recognize --

Justice Hugo L. Black: How could our policy have governed Texas as a republic?

Mr. Rankin: Well, because our legal policy was one where -- for instance, let's take it something removed from --

Justice Hugo L. Black: But could it -- could it have fixed -- could our policy prevent Mexico from having whatever you pointed out in your argument?

Mr. Rankin: Well, it did.

We --

Justice Hugo L. Black: Well, if -- if it has powers of preventing it from doing it, but as a question of law --

Mr. Rankin: Yes.

Justice Hugo L. Black: Do you mean that because of our policy, no nation in the world had a right to have more than three miles out of their boundary?

Mr. Rankin: Because the United States won't recognize for any other nation --

Justice Hugo L. Black: I understand --

Mr. Rankin: -- as a matter of law.

Justice Hugo L. Black: -- United States won't recognize but I am --

Mr. Rankin: Yes.

Justice Hugo L. Black: -- talking about the Republic of Texas or the Republic of Mexico or some other country.

Mr. Rankin: It could have three -- three leagues as a domestic matter in itself, but nothing that would be enforceable against the United States.

Justice Felix Frankfurter: Do you mean if United States wanted to and there (Inaudible) the war, if the Republic of Texas asserted that boundary, is that what you mean?

Mr. Rankin: Well, yes and also --

Justice Felix Frankfurter: Do you mean something more?

Mr. Rankin: I think that it would start a war in all the diplomatic exchanges we've had with many countries involved and many countries have abandoned the claim like the entrance of Russia and -- and others that I have -- Italy and others that I have cited and that are cited in our brief.

We didn't go to war about them at the time because we didn't have to.

Justice Felix Frankfurter: Well, is your answer to Justice Black's question that considering your (Inaudible) of our national policy (Inaudible) this country, in the most solemn and unquestionable ways, had a policy vis-à-vis all other nations that it would not recognize boundaries beyond three miles seaward.

Are you -- are you answering Justice Black's question by saying therefore, the boundaries of any other nation (Inaudible) before the Court, couldn't be -- be more than three miles because this Government (Inaudible), is that your answer?

Mr. Rankin: That's right.

So far as this country is concerned, the law would be -- it -- it did not have a boundary that was legal.

Justice Hugo L. Black: What -- what would be -- what would -- what was the boundary?

What's the boundary within the (Inaudible)?

Mr. Rankin: Three miles.

It's a maritime --

Justice Hugo L. Black: That's the law as we say it.

Mr. Rankin: That's right.

That's the position of this country in regard to the law and that is according to your decision.

Justice John M. Harlan: (Inaudible)

Mr. Rankin: I don't think in this -- I don't -- don't think in the light of this particular controversy or where it involved is the application of the law of the United States.

The Court could probably take what other countries did and say that would be the foreign policy of the United States instead of what was the foreign policy.

Justice John M. Harlan: (Inaudible)

Mr. Rankin: That's right.

The question is, what is the position of the United States because it is a matter of foreign policy.

It has to be determined by the political branch that has that responsibility.

Now, I --

Justice Felix Frankfurter: If the question of foreign policy arises.

And in --

Mr. Rankin: Well --

Justice Felix Frankfurter: -- if a question -- if an issue of foreign policy arises, but then every assertion by Finland or Iceland as to what its boundaries are, that's entirely (Inaudible) of determination by this country of (Inaudible).

Mr. Rankin: It doesn't necessarily because sometimes, it doesn't come up -- up as a direct problem to our citizens.

Justice Felix Frankfurter: I know but --

Mr. Rankin: But quite often --

Justice Felix Frankfurter: -- the fact says there must be a boundary nevertheless in the meantime, you can't -- there's no boundary (Inaudible) comes out.

Mr. Rankin: Well, the law would be that you wouldn't recognize as far as this Court was concerned because you would take what policies of the political branches are in regard to that matter.

And you would say regardless of what Finland or Norway or some other countries would claim as being 12 or 15 miles or something else, the foreign policy of United States is to recognize three miles and our citizens can go any place up to three miles.

And so when a case comes before us, that's the law to it and that's what you got.

Justice Felix Frankfurter: Does it follow -- does it follow, based on your premise, that our foreign -- the national policy was the three miles.

That this Government would tell its citizen, you go ahead and do what you seek outside of three miles although the foreign nations (Inaudible).

Does it follow?

I don't think it follows at all.

Mr. Rankin: Well, we've done --

Justice Felix Frankfurter: There are lot of generalized claims made by this Government regarding foreign relations after which it (Inaudible) not direct on.

Mr. Rankin: Well, that might be but in this case, we have cases that we've cited to the Court in which we have told the citizens to go right ahead and three miles is the limit.

Justice Felix Frankfurter: Because they are ready to take the consequences of our position even throughout the places or diplomatic negotiations ultimately through war.

Mr. Rankin: That's right.

And if we are willing to take that stronger position, this Court has said, “We won't try to remake the foreign policy of the United States.

We will follow that policy because we have neither the knowledge, familiarity with all the problems that we -- that are to be dealt with.

And so that part of the fact, whatever is said (Inaudible), we take and put right down, that's what we deal with as the fact in regard to that principle of law.

Justice Felix Frankfurter: But -- but, Mr. Solicitor, legal transactions might take place within the territories of this Government wasn't recognized in its relation with other countries.

Now, the legal transaction may nevertheless be validated or recognized by this Court if it doesn't affect anything with the United States.

So you can't say either is or isn't the territory or boundary so far as this country is concerned, a boundary with a relationship country, not a boundary (Inaudible).

Mr. Rankin: Well, the difficulty with that kind of an approach to the problem is that this Court would in fact be the same that at the time that the State entered the Union, the foreign policy of the United States will differ than that -- that was asserted by the President of the United States and the Secretary of the States for 150 years.

They have said that that is the foreign policy.

And --

Justice Hugo L. Black: Three miles and three leagues.

Mr. Rankin: Yes.

Justice Hugo L. Black: I thought you wouldn't stand on what we say in California (Inaudible).

Mr. Rankin: I say that you didn't examine whether there had been a departure as to the Gulf in --

Justice Hugo L. Black: I am -- I am --

Mr. Rankin: -- in that case.

Justice Hugo L. Black: -- rather interested in the argument so far that everything has been said relates to, I presume, what was (Inaudible) judicial knowledge.

Mr. Rankin: Yes.

Justice Hugo L. Black: The Government takes the position that it's entitled to the judgment, but the other side takes (Inaudible).

I assume that if the other is right and you are wrong about the interpretation of law as it -- as it existed at the time, that it's exceedingly important, at least on one decision of that case as to whether the Government has any proof or would have any proof that before Texas became a State, it did not assert and claim as its boundary the three leagues into the Gulf, is there any dispute of that?

Mr. Rankin: There is no dispute that from 1836 on, Texas did assert by the statute and claimed the three leagues boundary in the Gulf.

Justice Hugo L. Black: By the time it became a State.

Mr. Rankin: That's right.

The United States submits that.

Justice Hugo L. Black: And that did it present that boundary to the Congress as its boundaries at the time it became a State?

Mr. Rankin: There is some question about that.

Justice Hugo L. Black: There is a question.

Mr. Rankin: It's clear that they did not present at all when the annexations and joint resolution was passed.

It was not discussed.

It was never urged by any communications.

No -- neither side have been able to produce this (Inaudible) that anybody ever urged these maritime boundaries as being of any importance for consideration.

Justice Hugo L. Black: What -- what was urged within the quarter?

Did the -- was the Report made the Congress of what the boundaries of Texas were claimed to be?

Mr. Rankin: The -- the Report -- this is -- this is claimed by Senator Wallace that he read during the consideration or the recognition that the Congress passed the resolution recommended by the President (Inaudible).

It is claimed by -- that Senator Wallace did read the statutes to the Congress at that time.

United States says that has no effect whatsoever.

That when you recognize a foreign country which can only be done by the President anyway, that you don't pass upon the question of whether its territory, as it claimed, is valid or has any meaning whatsoever.

Justice Hugo L. Black: (Inaudible)

Mr. Rankin: Well, there's no question of what the boundary claims of Texas in -- to various -- various extent were known to the Congress at the time it was annexed or be admitted into the Union.

And the Congress would have nothing to do with being bound by those boundaries.

Justice Hugo L. Black: What did --

Mr. Rankin: It said so.

Justice Hugo L. Black: -- what did the statute say (Inaudible)?

Mr. Rankin: Yes, I do.

You'll turn to 208 --

Justice Hugo L. Black: Of your brief?

Mr. Rankin: -- of the Government's brief.

At the bottom of the page, “The joint resolution for the annexation of Texas provided,” bottom of that page 208, “resolve that Congress does consent that the property properly included within and rightfully belonging to the Republic of Texas may be erected into a new state and we call the State of Texas.

And be it further resolved that the foregoing consent of Congress has given upon the following conditions and with the following guarantees to wit, first, that State to be formed, subject to the adjustment by this Government of all questions of boundary that may arise with other governments.”

Justice Hugo L. Black: (Inaudible)

Mr. Rankin: It was reduced, and the mimeograph sheet, I have had distributed to the Court, shows the extent of the great reductions as compared with the claims of Texas and what they had in their statute.

In addition to that, as set forth in this brief, some 30 pages of the debates by the Congress when this joint resolution was passed in which they raised the question about all of the extravagant claims to boundary and territory that Texas was making and that the United States must not be bound by anything like that.

I want to clear, nothing was said about this maritime boundary by anybody one way or the other as, just as many things.

Justice Potter Stewart: Mr. Solicitor General, I didn't mean to interrupt you.

But I -- is it also in this statute (Inaudible) found the language about the unappropriated -- unappropriated --

Mr. Rankin: Yes.

Right.

Justice Potter Stewart: -- in the same statute?

Mr. Rankin: Yes.

Justice Potter Stewart: And I think there is a claim made that that -- perhaps not intentionally at the time but by its terms, by what it means could have -- could have (Inaudible) the discussion here.

Mr. Rankin: Now, if you --

Justice Hugo L. Black: (Inaudible)

Mr. Rankin: Yes, and further, that we were given the absolute right, this Government was, to adjust all questions of boundary, maritime or any other.

Justice Hugo L. Black: (Inaudible)

Mr. Rankin: In 19 -- in 1858 --

Justice Hugo L. Black: Oh, but as to the maritime --

Mr. Rankin: -- we said in so many words clearly to Britain in regard of the Guadalupe Hidalgo Treaty that we asserted no -- nothing in -- beyond the three-mile in the Gulf.

That was the position we took.

We had a right under this very resolution to take it.

They bound themselves in advance to let us take it, and that was what the Congress' conception was at the time.

And if you'll read these debates, you'll see that the Congress was very thorough, and I'll tell you why.

Now, if you'll look at the map, they were claiming part of Wyoming clear up near the North Platte River.

They were claiming a large chunk of Colorado.

They were claiming part of Oklahoma.

They were claiming the whole eastern half or more of New Mexico.

Justice Hugo L. Black: (Inaudible)

Mr. Rankin: No, this -- in this --

Justice Hugo L. Black: (Inaudible)

Mr. Rankin: [Laughs]

In this statute, Mr. Justice, they were claiming all of these by the statute.

Now, they didn't -- didn't have any possession.

Occupancy and they -- the Congress discussed this.

They have said Texas can't give title to property that it doesn't own.

There are rules about those things under international law.

They can't just go out and reach out and name a lot of boundary lines and say that belongs to us.

Justice Hugo L. Black: (Inaudible)

Mr. Rankin: Well, the Comanches owned part of it.

And they -- they described the fact, the Comanches are pretty good fighters.

And we'd have to take it away from if we would support any such claims.

And then Spain, they -- they even said during the debates that there was never a Texan in the State of New Mexico except to the prisoners.

That's what they said.

And that -- that was when they went over to Santa Fe and they were taking --

Justice John M. Harlan: (Inaudible)

Mr. Rankin: Well, I am just saying that's what the congressman said in presenting this thing.

And there's no question but the whole part of Texas -- of New Mexico was under the control with the problems, and Santa Fe was -- was occupied as the capital of New Mexico and perfectly loyal to the State --- to the country of Mexico.

And they just felt, Look at us, come in here, and try to claim -- take this statute of Texas and assert against Mexico, which is a much smaller power than we were at then.

We weren't -- we hadn't reached the size we are now, of course, that we are still very much more powerful and for us, the State of Mexico, we are going to try to substantiate and urge even though there is no occupancy, no right of possession, nothing under international law that would give Texas those claims.

Mexico, “Because we have the power in the Treaty of Guadalupe Hidalgo, when we settle with you this controversy between this, we're going to take the (Inaudible) and impose upon you to give us that regardless of international law.”

Now, that's what the -- the problem that they had up.

Justice Felix Frankfurter: Mr. Solicitor, at the time of the convention (Inaudible)

Mr. Rankin: Well, that's -- we set that out in our briefs.

I can't answer that just yes or no.

They still have the statute in effect in 1836.

But then we made a -- a boundary agreement with them and they agreed to abide by our treaty with Spain and with Mexico.

And in that, they didn't say a thing about any treaty --

Justice Felix Frankfurter: No, but this is -- there's any (Inaudible)

Mr. Rankin: Well --

Justice Felix Frankfurter: That was the -- they claim that they (Inaudible).

Mr. Rankin: -- we agree to a boundary that was -- didn't have it and they agreed to it.

Now, maybe, they --

Justice Felix Frankfurter: The -- the convention adopted but they (Inaudible) then the boundaries between the Texas and --

Mr. Rankin: Oh, yes, but they said --

Justice Felix Frankfurter: (Inaudible).

Now my question was, was this (Inaudible) one of the arguments?

Mr. Rankin: Well, it was not included and that means it's not in controversy because --

Justice Felix Frankfurter: Then what is in controversy?

Mr. Rankin: Can I --

Justice Felix Frankfurter: Then what is explicitly in controversy, what -- this could be in controversy?

Mr. Rankin: I think so.

In this way, the boundary -- they agreed in the --

Justice Hugo L. Black: We'll recess now.

Print this transcript Transcript: 

Argument of Rankin

Mr. Rankin: -- the last question that I can't -- I think the inquiry was whether or not, there was a dispute about this three-league boundary.

And I think the correct --

Justice Felix Frankfurter: On account of the convention?

Mr. Rankin: Yes.

I think the correct answer is that there was no dispute in that one side asserted the three leagues and the other side asserted that there couldn't be a three-league.

There was this factor that there was the convention in regard to the boundary that was set up.

And for that, they adopted the -- referred to the provisions of the prior agreement with Spain, Mexico and so forth.

And then they agreed that the convention of boundary would be as agreed by the convention in establishing a portion of it along the northern side and so forth.

And in doing that, the agreement was beginning -- the boundary beginning at a mound at the mouth of the Sabine River.

So that there wasn't even at -- as the Government construed, there wasn't even an assertion at that time that there was any right to three leagues.

It was a recognition that the boundary itself would begin at the shore.

Now, it wasn't a dispute that was raised in such a way that you've just -- that's just the conclusion you've engulfed in the circumstances, seems to us.

Now, to turn to the statute again --

Justice Potter Stewart: Did that convention also provide that in Article II that until the remaining portions shall be marked out that the -- that the rest of the -- the rest of the boundary shall get -- before the rest of boundary, each of those sovereignty should exercise without interference with the other, their historic territory (Voice Overlap) --

Mr. Rankin: That's my recollection at the present, what it was, yes, substantially.

Justice Potter Stewart: And it is true too, isn't it, that -- that this boundary that we're now talking about was not included within the -- in the agenda of a convention at that time?

Mr. Rankin: That's right.

The Government also contends that --

Justice Potter Stewart: To that extent, it was not only -- not in controversy, but it was agreed that the historic boundary should continue to prevail, isn't that true?

Mr. Rankin: Well, in general terms, I think it was, Mr. Justice.

The United States contends that Texas never exercised dominion or control over this maritime boundary.

It claims that its gunboats did become active throughout the entire Gulf area.

We contend that that is not sufficient under international law.

It does not establish any claim under that kind of a construction.

United States would have had possession of the entire Atlantic and Pacific Oceans during the World War II.

But there would have to be an assertion of the right to keep people out of this particular three-league area to satisfy international law.

And there's no evidence produced of that kind at all.

There is a claim that are two small ships of the United States that were taken and that that was a ground for claiming that they had -- they occupied and had jurisdiction of this area.

One of them was taken in Matagorda Bay and they paid an indemnity for -- in connection with it.

And it was clearly within the three-mile area so it wouldn't be any proof whatsoever.

I think that was the Durango.

The other one was (Inaudible) and there's no showing as to where it was taken at all.

So there's no other evidence of any kind that they, in fact, occupied this area.

The statute however, I'd like to call your attention to, we believe that the United States was bound to what was properly included within under the law and rightfully belonged to.

Now, if those terms are not clear enough by themselves as to what -- so that you'd looked to any interpretation, it seems to me, you'd look the interpretation in the debates in which it was recognized that the claims were -- of Texas were very extreme that they could not be maintained and that all of these boundaries had to be reexamined and Texas had to be taken in, in accordance with what she really had in accordance with proper international law.

Justice Hugo L. Black: How would then (Voice Overlap) the boundary be adjusted as were we adjust it?

Mr. Rankin: United States proceeded to do it.

There was a -- action by the United States of paying $10,000,000 to Texas in connection with claims in regard to some of these territories.

The sponsor of that bill said that those were purported claims.

He did not urge that they were valid claims and there was much presented during the debates about the fact that Texas was badly in debt and needed this $10,000,000 to meet her bond issues and physical problems that she had and this was a question then of our having acquired all of the Mexican area ourselves and the United States fixing the boundary between the two countries in trying to set up the New Mexican State.

Justice Hugo L. Black: How much were these boundaries diminished?

Mr. Rankin: Well, they took all of that if you'd refer to that mimeographed -- a map that we supplied, you see they took off all of that eastern half of New Mexico.

Justice Hugo L. Black: What happened during -- at that time?

Mr. Rankin: It went to New -- it was established as a part of New Mexico.

There is a case --

Justice Hugo L. Black: At that time?

Mr. Rankin: This was -- it was in the 1850s after -- I think there was a territory established after the war with Mexico that was settled by the Treaty of Guadalupe Hidalgo and then required by Gadsden Purchase right after that in 1949.

And then the State was created.

And --

Justice Hugo L. Black: So that the Government instead of this other man on the basis of his direct superior in Mexico --

Mr. Rankin: I don't believe, Mr. Justice Black.

It was --

Justice Hugo L. Black: You stated that.

Mr. Rankin: No, I -- I haven't -- I misstated myself if that was what I said, (Voice Overlap) because it was settled on the basis of what the United States thought was rightfully and properly within Texas.

Justice Hugo L. Black: Well what -- what about this man -- it was not rightfully and properly in Texas that was taken away from the -- from this boundary of the State.

Mr. Rankin: It was placed within territories of other States.

New Mexico --

Justice Hugo L. Black: What authority from --

Mr. Rankin: Under --

Justice Hugo L. Black: Where was the title derived from for the United States to do this?

Mr. Rankin: The Court of Claims held in the De Baca case in 36 Ct. Cl., we cite in our brief, “That the title to all of the area that was set up in New Mexico was acquired by the Treaty of Guadalupe Hidalgo from Mexico and was not acquired by cession from Texas.”

Justice Hugo L. Black: Well that's what I thought you've said.

Mr. Rankin: I -- long way around getting there, I guess.

Then there -- this map showed that part of it was set up in Oklahoma and part of it was set up in Colorado.

Now, I'm not sure about my history, but I think part of that might have been within the Louisiana Purchase and some of that area that Texas had claimed.

And some of it would be within the Spanish claims in that particular area.

Then part of it, if you'll notice in Greer County, was up in Oklahoma and this Court decided that Texas did not have title to that, in one of the cases cited in our brief.

Justice Hugo L. Black: So what -- what I understand in your and I want to see it around this case.

I understand that you're talking yourself into a policy of the Government, you said the effective law you keep calling it international law, but I assume international law recognized that this country, that would be recognized.

Mr. Rankin: That's right.

Justice Hugo L. Black: No more, and that under that, could be no more than three miles under the sea.

Mr. Rankin: Yes.

Justice Hugo L. Black: But you -- while we had said that didn't have -- you're not looking at this part of the map.

We had said that in reference to the Government part of it.

I understand you say the Gulf and we treat it separately, and yet your argument is that it's so much of a problem, is it -- it's so elite that you might say so, so contrary to our -- what the law would allow.

That we must read into the admission, a diminution of its power by reason of that policy.

Mr. Rankin: Mr. Justice Black, I --

Justice Hugo L. Black: By Government (Voice Overlap) --

Mr. Rankin: Yes.

I agree with all of what you said except that I don't say that the Gulf should, as a matter of law and fact, be treated differently.

I'm just trying to say that I don't think this Court was trying to examine the Gulf particularly in United States against California to the extent that it should feel bound by the statement in that decision, of our three-mile policy, if the facts were different in the Gulf so that you were satisfied that we had actually established, as a matter of history, a boundary that -- for more than three miles.

Justice Hugo L. Black: But suppose we meant it when we said it -- it meant that the three-mile policy what difference would that make, insofar as this Act is concerned?

Will it change the interpretation of the Act?

Mr. Rankin: Well, I don't think it would change the interpretation of the Act at all.

I think you would still have to apply the law and part of that would be the policy and part of it would be what happened at the time of annexation and what happened before that.

All of those factors to see whether or not, Texas had a boundary, a legal boundary beyond three miles.

Justice Hugo L. Black: And your argument is drawn at the same line, but the argument is made on the national policy, three miles.

Mr. Rankin: Yes, sir.

Justice Hugo L. Black: And you now are willing to say that refers to the Government, that's what you're saying, is that same policy was taken there and the whole country should be applied to the Government.

Mr. Rankin: That's right.

Justice Hugo L. Black: But wasn't before.

Mr. Rankin: I don't want to say that I agree that it wasn't before, Mr. Justice.

Justice Hugo L. Black: Well, I thought you had indicated, but the -- I don't think that fact is here.

What if -- more or less, this case is not, but its political serving, it had a State policy which inferred to heretofore the general conversation that now we should be afforded the first time.

Mr. Rankin: No, I didn't mean at all Mr. Justice.

I think that the policy was that exactly as the Court recited it in U.S. against California.

That it has been throughout our history for 150 years, that it's -- it's binding on the Court and that it disposes of the question.

But I do think that you were not examining between the parties this particular question in the same way that as to what was intended by this Act as you are now.

That's all I know.

Justice Hugo L. Black: But Congress used or is it acted in there, I'm not arguing in everything (Inaudible) points out.

So that Congress knew so far as our case is concerned, what do you say?

Mr. Rankin: Oh, yes.

They attached that to the hearings.

Justice Hugo L. Black: That's right, but those opinions in (Voice Overlap) --

Mr. Rankin: That's right.

Justice Hugo L. Black: Therefore you, just have been said it was a general policy against setting it more than three miles --

Mr. Rankin: Yes, sir.

Justice Hugo L. Black: -- whether it was the fact that this Court meant.

Notwithstanding that it indicated as I understand the use that you conceive.

That it showed the purpose to those that had claimed has a right to have that.

That it shows the purpose as far the Government, so let States have it, whatever had been the problem at hand.

Mr. Rankin: Oh, no.

Either the United States doesn't conceive that at all.

It concedes only that Congress intended that if as a matter of law and they could prove it, they would be able to get the three leagues.

But the fact that we had such a policy which was called to their attention, the case and its effect -- all of those things and many of them contended, would cut it down so they could possibly have more than three miles.

But they said don't preclude us.

Give us a chance at least to prove our claims when Congress let --

Justice Hugo L. Black: Do you understand that those arguments meant that they were saying even though there is -- has been (Inaudible) the legal three-mile limit -- we are going to pass this bill and Congress will let us decide where there has been a three-mile limit, generally speaking, or did they intend to say that to that regard, there was an (Inaudible) some kind of inspection should be made to see what boundary that the States -- the boundary that the States were when they came in or what it going to prove thereat and let them --

Mr. Rankin: No, they intended that they should have exactly what was their legal boundaries and no more.

And if the law was such that three miles applied as it was claimed -- it's been claimed here before this Court and it's claimed in all the debates.

But despite the statements in U.S. against California, despite the 150 years of history, it wasn't the fact.

It wasn't the policy of the United States.

If they could actually prove that there wasn't such a policy and that that wasn't the law and that they could have a boundary three leagues out because it wasn't the law and because the law wouldn't deprive them of it.

They could have it.

And there -- there were those who said in the debates, “Why, it's absurd.

You're cut down by this three-mile, you can't get anything beyond that.”

And they said, “All we want is a chance.”

Justice Hugo L. Black: They went -- they went on the basis as Congress acted on the basis but (Inaudible) when they said they would (Inaudible)

Mr. Rankin: Well, they -- they didn't.

They said very explicitly that this was not to give them anything.

Justice Hugo L. Black: Right.

Mr. Rankin: This was to give them a chance to prove it.

Justice Hugo L. Black: Give them a chance to prove what they -- what they had historically claimed.

Mr. Rankin: No.

Not -- not that they claimed it, but they legally had it because they always said their constitutional boundaries, their legal existing boundaries, the boundaries that they'd have for 150 years and Senator Cordon said, “Our State has a boundary.

It's a matter of law.

It isn't something you just imagine.

It's a legal boundary.”

And Senator Daniel said, “Why, this is to treat all the States the same way.”

Those that are inland as well as maritime.

Well, the inland States can only have one boundary.

Justice Hugo L. Black: The evidence is met by that is the one who had this boundary whatever it was.

Mr. Rankin: Yes it's -- but it'd be these legal boundaries and the seaward States would have some boundary, if they had asserted one and it was within the national policy boundary and maritime boundary.

With -- if they asserted that the coast, which was the fact, they would have that much, but they could extend it three miles and that Congress approving these very Acts, confirmed that.

Justice Hugo L. Black: What do you say to their argument that Congress has set them into the defining of legal boundary before I had this one, referring -- by referring on the (Inaudible) but you -- which can be utilized to determine how much you'd state --

Mr. Rankin: Well, I think the best answer to that is what they said in the crucial time when they were trying to get it passed.

And Mr. Douglas, Mr. -- Senator Anderson, Senator Douglas and Senator Murray were very active in trying to find out what do you really intend by this bill?

What are you trying to accomplish?

How far is it going to go?

Does it give it to?

And Senator Douglas said, “Does a Senator from Oregon believe that if the proposed language is adopted, Texas will have paramount rights in the submerged lands seaward from low-water mark 10.5 miles out?”

And Senator Cordon who was managing the bill said, “Texas will have title out to its legal, existing boundary line.

Not the one they had sometime back, its legal existing boundary line.”

Then Senator Douglas said, “What is this boundary line?”

Senator Cordon said, “If the Senator wants an answer to that question, he will have to get it from the Supreme Court.”

Then Senator Holland, “If it were proposed by the pending measure to extend the line beyond the three geographic miles, the Senator from Illinois would be justified in having concern.

The real fact is that the joint resolution does not make any such proposal.”

Justice Hugo L. Black: Well that -- that's denying.

I assume their statement is denying.

One of these claims was that to deal automatically, granting Texas three miles out.

Mr. Rankin: Yes.

That's what -- that's what I'm trying to clarify by these debates.

Now, assuming that that is clear in the Court's mind that there wasn't anything like that, then the next step [Laughs] is whether or not, the language itself.

Now, the -- the legislative posture was that the Government in advising the Congress said -- and I think there's no question about the Congress came to the same conclusion that they had the right to grant to the States out to any line that they would establish.

They could go beyond -- that if the Congress could say, “We'll disregard the foreign policy of the United States,” then by doing so we'll make new foreign policy by this Act if they seem fit to do it and draw such a line.

That it was made a very difficult political problem for them, because then it would be said, “Well you just gave this to Texas, Louisiana, Alabama, Mississippi, or Florida, when they didn't have any legal right to it whatsoever and what about the rest of the country?

You take it away from the whole country and make them a special grant, a special favor.

But they said no, don't -- you don't that.

Justice Hugo L. Black: (Inaudible)

Mr. Rankin: Yes.

But they answered that and said, “We don't ask anything like that.

We're not asking you to give us anything.

We want to go back to what our legal, existing boundaries were when we became a part of the Union -- the State and Union.

And whatever those were, not who we claim they were, they dealt in expressed terms and these debates would claim.

And they say, “We're not validating, we're not approving or confirming any claims.

This has got to be legal.”

If we can prove that we did in fact have a legal boundary at that time, we should in good equity and conscience, have -- according to that, because you're giving everybody else in accordance with their boundary.

That's the definition.

And that would be fair.

Now, those who were in the Congress wouldn't have the difficulty trying to explain that to their constituents that they would with the grant that was just based on some claims, because this would be a matter of what they legally had.

Justice Hugo L. Black: (Inaudible) you're saying then to the Court -- as you're saying to that the power of the Court grants -- but (Inaudible) is to say that under the courts of (Inaudible) has legal boundary beyond three miles.

Suppose that they're only saying the boundaries -- they without regard and they want to be -- they want to be -- asking that such legal boundaries and now, I'm just stating the claims and had -- only through the years that Congress had (Inaudible).

In that regard, you'd be now (Inaudible) on the basis of legality.

Mr. Rankin: Yes.

Justice Hugo L. Black: And as I gather, the State say from -- well, some I want change the wrong.

Assuming they were right, except nevertheless, they wanted that others didn't have to do it.

They end (Inaudible) and make that feel fine.

Mr. Rankin: Yes, but --

Justice Hugo L. Black: Of course, for the long -- but after they had on their boundaries.

Mr. Rankin: Well, no.

They -- they said that, “This is not to be based on the fact we made claims.”

They said that repeatedly, we're not asking that the Congress approved or validate anything to us because we make claims.

They said, “We're -- what --

Justice Hugo L. Black: Long standing claim --

Mr. Rankin: Long standing, historic (Voice Overlap) but you see what they said, “historic,” they explained that in time after time.

They said historic boundaries are not just because we claim boundaries for a long 150 years.

They're because they're legally existing boundaries for a long period of years.

Now, those are words of art.

They can't just be mere claims.

And when it was raised as to whether it would involve mere claims, they said it would not.

Now the Court, there is one particular point as to this matter that would get them out of the problem of the three-mile foreign policy of the United States.

And that's only one and I think Senator Holland recognized it and expressly said a number of times, many times in the debate.

He was rather cavalier about the claims of Louisiana.

He didn't think they're much to them, but he -- when they protested he said, “Well, I don't want to cut anything down or interfere with of course, as a matter of courtesy, but --

Justice Hugo L. Black: By asking the Senator he might have evidence.

Mr. Rankin: [Laughs]

Justice Hugo L. Black: But not everything.

Mr. Rankin: That's -- that's right.

[Laughter]

But then when he was dealing with Florida and Texas as the drafter of the old (Inaudible) he was rather -- he was very careful in saying, what would we require.

And he's never at anytime, indicated that they could ever get anything under this bill.

Justice Hugo L. Black: Did you indicate they could?

Mr. Rankin: No.

Just -- let me finish, Mr. Justice.

Just because they had a claim or just because they had a claim before they became part of the Union.

He said explicitly that Texas had to prove this.

That they had a claim to a three-league boundary before and at the time of -- of 1845, when they entered the Union and that that was approved by the Congress of the United States.

Both of those things were required.

Now, we would have --

Justice Hugo L. Black: Exactly put this in Alabama.

Mr. Rankin: Well, but they don't reach the point where they ever get pass the three-mile boundary, unless they do that.

That's their difficulty, you see.

And they were recognizing it frankly at that time.

Now, in advising the Court, we would certainly say to you and I think it's the law of every effort we've made to find what the law was in this case, that both the political branches have powers to determine this question of what the foreign policy of the United States is as to its maritime boundary.

And as the Congress speaks, we are not asserting to the Court that the President could say that foreign policy.

The Congress says our foreign policy should be three miles.Congress -- that the President could say the next day it will be one mile.

Justice Potter Stewart: When you say that both have power, do you mean that either one independently has power or that it requires both?

Mr. Rankin: No, independently.

Justice Potter Stewart: That each has power.

Mr. Rankin: Each has power is what I meant, Mr. Justice.

Justice Felix Frankfurter: But do you want to explain?

Mr. Rankin: But if they conflict, then we're in trouble.

And -- and we would concede that if the Congress of the United States and the case I've presented because I want to make it very clear had said, “Texas shall have as it comes into this Union, three-league boundary in the Gulf, that would have changed our foreign policy at that time.”

And that would be sufficient to get under this law, we think, under any fair interpretation of it, the debates and what was intended, would get Texas a boundary, because it would have the effect of immediately establishing that there could be a three-league boundary in the Gulf as far as the foreign policy of the United States is concerned.

Justice Felix Frankfurter: But when you say there could be such a policy, I can't think these statutes clearly indicate there could mean such a policy --

Mr. Rankin: I meant --

Justice Felix Frankfurter: -- because -- because you submit that if they can prove it, they can get it.

Congress therefore had said, we (Inaudible) what this general language will say, it has been the foreign policy of the United States by saying that if they can prove it that the foreign policy now, changes both handle at least, by the Government.

They did make a -- they did make a Statement on this foreign policy that is besides them.

Mr. Rankin: Mr. Justice Frankfurter, I don't think so.

In this regard I think that they -- if they have said --

Justice Felix Frankfurter: I'm not -- I don't think you confide that statute said they shall have it.

Mr. Rankin: No, I appreciate that.

But I think the distinction here is that they didn't say, whatever we say the foreign policy today is shall control this case.

They said, “Whatever the foreign policy was as the time they became a member of the Union.”

Justice Felix Frankfurter: That's what the statute contemplated that they might prove that that was -- that if they can prove that, then retroactively to do -- will Congress change the foreign policy and Congress retroactively obtains what is legal or is not and it would be a good commerce that we'll witness --

Mr. Rankin: Well what I -- the way I reason it was that they were -- would recognize that under the law, Congress had the power to declare that policy back at that time.

And having declared that Texas would have three leagues in 1845, that would be the foreign policy by operation of law.

And that this Court would so find.But if this Court found that it did not so declare and if there wasn't any such approval, then that would not be the law and the historic position of the country would control.

Justice Felix Frankfurter: And -- and follow that argument --

Mr. Rankin: Yes.

Justice Felix Frankfurter: -- that's impliedly the statute too -- that it might have been either it wasn't eight, nine -- when was that 1848?

1825, the foreign policy in relation to the Gulf or that we now reach back to be declared that you have been to foreign policy in 1825, provided, they covered as a proof that you'll acquire.

Or you -- I'm not saying that the period of time to indicate this is hardly moving.

Mr. Rankin: Well, I don't --

Justice Felix Frankfurter: But if a chance to deliver to the (Inaudible)

Mr. Rankin: I don't mean to be semantic about it.

I don't want to be in a matter very serious to all of these I know, but I think they were dealing with a very difficult political question.

And they --

Justice Felix Frankfurter: That's really the milk and the coconut is that?

Mr. Rankin: That's right.

And the Congress often does that.

And they didn't want to face up to deciding it one way or the other, themselves.

Justice Felix Frankfurter: What the Supreme Court voiced, just to bail them out.

Mr. Rankin: [Laughs]

And so they -- they said, “You fellows have claimed around here for a long time that you've got these boundaries.

You claim they're perfectly legal, they're constitutional and existing.

You say they're not fictions.

And you say they're -- they have validity.

Now if you can prove all that, we'll give you the same as we give any other State in the Union within its boundaries.

If you can't have it, it's your own fault.

You made a lot of claims you can't substantiate.

Justice Charles E. Whittaker: That accepting your view of the phrase, “boundaries existing at the time of admission to the Union.”

There could be no competent evidence to prove the necessary fact, isn't that right?

Mr. Rankin: I don't think so, Mr. Justice Whittaker, because I think that what I've said already about the assumption of the -- of the Admission Act being different than it was, assuming that that had provided it in terms that Texas shall have a boundary three leagues in the Gulf, then that would have given them their rights that they claim under the statute.

Now, you say well, Congress knew that wasn't the -- the fact.

Maybe that's the next step that you're -- you're taking.

And then you've needed the proposition that they said well that's the effect of what happened.

If you read all the representations and what Congress did in all that that's the legal effect of it, as though they've said three leagues back in those days.

And Congress as far as you can prove that, all right.

If you can't prove it, you don't get it.

Justice Charles E. Whittaker: If -- if it is true that historically -- consistently down until at least the time of this Act, that the three-mile limit was effective so far as we're concerned.

Then if the phrase, “boundaries existing at the time of admission to the State,” means immediately after admitted to the State, then how could there be competent evidence that the -- now that the States' boundaries at the time existed beyond three miles?

Mr. Rankin: Well, if I can answer that question by assuming that there is -- there is the statute that was -- was not in fact, that they could produce a statute that we didn't then know about, but said that's Texas had three leagues in the Gulf as their boundary -- maritime boundary, that would have given them three leagues in the Gulf as a policy of the United States that could override any other policy there was.

You conceive that.

And that would have given it through them at that time.

Now, basically their -- their contention during the debates and all was that the Acts of the Congress were the same as though they had done that, back at that time.

Not now.

And if they could prove that, then they would fill a departure from the foreign policy that would be legally controlled and we conceive.

But the Government's position is that they don't prove that.

Justice Hugo L. Black: Did Congress -- they can prove that?

Mr. Rankin: Yes, they did.

And they knew presumably -- they knew this league's rated history.

And the reservations that have been made, but there were contentions that it didn't have that effect, no contentions that they did.

I don't think there's any question what Congress would have done, if they'd insisted that Congress decided.

But that wasn't what they asked.

They said, give us a chance to prove it.

And that's a much easier question for Congress to answer as if history demonstrates, than to go and have an answer for itself and have these States unhappy for years to come.

Justice Potter Stewart: Well Mr. Solicitor, are you suggesting that except for this non-existence statute there'd be no way that Texas could prove this departure limits?

Mr. Rankin: Well, I think that you could examine what the Congress did do and all of the claims that Texas makes in good faith saying at that courts what the Congress did and that it was in effect, a change in foreign policy.

Justice Potter Stewart: That is the admission statutes, for example.

Mr. Rankin: The admission statute and the -- they claimed that Polk, President Polk made representation that we show we're not -- made -- has made in private communication and said that he's confidential at the time, to his own charge of the affairs.

And only for that purpose, they weren't even communicating in the convention, but they claim in their brief that they were used to -- induced to enter into this annexation and they -- that was part of their contentions.

It still is.

The facts don't bare them out, but duly make their side of it.

And there was the claim that Jackson represented in connection with the annexation and he said, “Their territory was a part of their independence.”

And they say now that shows Jack -- President Jackson was recognizing our claims of territory.

And then we refer to this decision of this Court, in Kennett against Chambers, in which that this Court said that wasn't any such claims as that.

Jackson was warning the Congress not to hurry about this independence.

And as he was saying to them, they don't have anything to cede to the United States until they are independent.

And here's the -- the country of Mexico.

We don't want to be in the family that makes us appearing to be in a hurry to try to take this territory away from.

You should be careful about approaching them.

Now, they have their construction to that and what it means.

And we've tried to present what we think history shows.

And I don't mean that they don't abide that -- that they don't claim his (Voice Overlap) --

Justice Potter Stewart: Well -- well, you don't suggest there any other materials except those which Texas has offered us do you?

Mr. Rankin: Well and what we've -- offered it to rebuttal.

Justice Potter Stewart: Well, basically the materials are the same.

The rebuttal merely go to explanations of the basic materials, don't-- do they not?

Mr. Rankin: Yes.

If their materials except I'd -- I think, if you'd accept their materials without the supplement of what the history all -- all showed, I think you might think it gave much more weight to their construction of the annexation than it's entitled to, so anything under question.

Justice Hugo L. Black: If this all, you're being (Inaudible)

Mr. Rankin: Yes, it seems to be that way.

But I think that we have developed the whole story here.

And that people are --

Justice Potter Stewart: Well, that's what I'm getting to all the materials are here, are they not?

Mr. Rankin: Yes.

Justice Potter Stewart: And you put an interpretation upon them which is that they do not establish what Texas says they established.

Mr. Rankin: Yes.

Plus an additional gloss, Mr. Justice, that I think that should be put on.

And that is that this is a grant by the United States that under U.S. against Union Pacific from the other cases, the Court's always held that grants should be strictly construed in favor of the United States and against the grantee.

And then I think you --

Justice Hugo L. Black: Is that true about granting to the States?

Mr. Rankin: Yes.

Justice Potter Stewart: Was that that Union Pacific was a grant --

Mr. Rankin: No, it wasn't a grant of State.

Justice Potter Stewart: We don't -- we don't have any, do we?

Mr. Rankin: Well you have (Voice Overlap) have many grants for the States but I -- over the years in various forms, you know, that public lands --

Justice Potter Stewart: Yes, but were -- were these issues --

Mr. Rankin: I wouldn't know.

I will check it out.

Justice Felix Frankfurter: Yes, one could produce materials to show the proponents of these (Inaudible) and the proponents of the ones who concede as, it didn't express every time on what might we called legally considered.

Mr. Rankin: Well -- no, I -- I think they were trying to --

Justice Hugo L. Black: (Voice Overlap) do you think the proponent including the President of the United States were heightened to the boundary?

Mr. Rankin: No, not at all.

I think they were trying to deal although, and I think the Court should consider that.

They were trying to deal with what these States under States' rights claims had asserted were their rights in this matter.

And they were -- they were not trying to just give them something out of hand.

There was no disposition to do that as I see it.

They -- and they were trying to treat the whole 48 states in fairness, according to a formula that would apply to the 48.

And the only way, as I see it, that they could fit the Gulf States into that was to find that they really had a boundary that was legal, like they were requiring of all the other States at that particular time, as the measure.

Now, if they did, then I don't see how the other States and their constituencies would have much basis for a complaint.

Justice Felix Frankfurter: I think the very fact that you've mentioned, that nobody is supposed to give them something out of hand, just the (Inaudible) of rule of presumption that were invoked.

That grants by the Government can speak if it's true.

So that really, if that arises, I think that that's aware that the Government does hand out larger.

Here, there was a real (Inaudible) contest over the year and a fluctuating added to agreement on the part of the Federal Government about where else can say including that term of laws undefined, press-relating standards, isn't that true?

Mr. Rankin: Yes.

I do think that there is a further gloss in the statute of annexation.

I think that it is so clearly a reservation in regard to these boundary claims and when you look back at the history, you'll find that the real issues of boundary were in regard to the area between Nueces and the Rio Grande.

That it was frankly stated that Texas was claiming wide area that it was said in the debates they never had occupied west of San -- in San Antonio.

And yet they carried -- they claimed all that area.

And all to the north, if they did and -- and there were recognition that those claims were just -- had no validity.

Then there's also the factors and we developed these in our brief at some length, that these, that the Texans themselves, after the Annexation Treaty failed, went to Mexico and they were even willing to compromise the Nueces claim.

And Donaldson wrote to the President says, “My goodness,” or a word to that effect, “Why should we go to war and agree to defend claims that Texas itself is willing to give up and willing to negotiate and arbitrate.”

Now that's the Nueces and the Rio Grande issue, which was as pointed to a filing issue as Texas ever had here.

But during this entire time, no one ever raised the question of whether they could have a three-league boundary in the Gulf.

Nobody ever raised the question of whether they were claiming any such thing.

And yet all the other boundaries --

Justice Potter Stewart: Well that wasn't a question.

They were claiming it, weren't they?

That was not open to question.

That was a very clear statute metes and bounds in 1836.

Mr. Rankin: Well, if they would -- there are no questions about -- that there was a statute.

Justice Potter Stewart: There's no question raised as to whether they were claiming, was there?

Mr. Rankin: The question about whether it was a legal claim --

Justice Potter Stewart: It's with something else, yes.

Mr. Rankin: -- that they could assert and whether it would be recognized I think, it's probably a better way stated.

That was never asserted or presented in any kind of a communication or by word of mouth as far as either side has ever been able to show in this case.

Justice Potter Stewart: Mr. Solicitor, but then I have for almost two days now and that we've been talking about the same thing.

But does it all summed up to this so far as the Government's position is concerned?

That all of the relevant materials establish that as of the time at least as regards Texas, that Texas was admitted to the Union, the three-mile limit had been established affirmatively as a matter of federal and national policy?

Mr. Rankin: Yes, sir.

Justice Potter Stewart: And that all of the materials which you say under proper interpretation of the 1953 statute, Texas must apply, must show that there was a departure from the established three-mile policy favorable to Texas and that none of those materials permit that inference, therefore that Texas has not established the burden imposed upon it under the 1953 statute?

And therefore its claim must fail.

Mr. Rankin: As the position of the Government.

Justice Potter Stewart: And that's all there is to the Government's brief.

The incidence go I mean --

Mr. Rankin: Well I think there -- there's coloration (Voice Overlap) --

Justice Potter Stewart: Well, there's a lot of coloration, but I mean --

Mr. Rankin: Well that's the substance.

Justice Potter Stewart: -- that's the essence of it, isn't it?

Mr. Rankin: That's right.

Justice Potter Stewart: Well, don't you also have an alternative argument based on even though arguendo, assuming that the -- that the Republic of Texas had a boundary of three leagues from the shore.

Still, at the time it became a member of the Union since that that -- it then as a member of Union, its boundaries could not go beyond the boundaries of the United States of America that at that moment, its boundaries were three miles from the shore isn't that of --

Mr. Rankin: Yes, Mr. Justice, but I thought that was inherent in --

Justice Potter Stewart: Well, perhaps it was.

Mr. Rankin: -- in the questions --

Justice Potter Stewart: (Voice Overlap) --

Mr. Rankin: Because I -- I mean it to be our -- part of our case, in a way.

Now, I do --

Justice Potter Stewart: (Voice Overlap) the other way around.

The Government doesn't persuade us as to either the affirmative proposition, namely that it was three miles at the time, or that Texas has failed to establish that there was a departure from the three miles, if there was.

The non-materials before us made Texas prevail here?

Mr. Rankin: No, it will not.

That's the Government's position, Your Honor.

Now, I would like call your attention again to that statute of admission.

Justice Hugo L. Black: The other side of that legal question, as you have asserted.

What legal (Inaudible) Congress admitted by wanting it all together and have the greatest (Inaudible)

Mr. Rankin: As -- you mean, Mr. Justice --

Justice Hugo L. Black: That --

Mr. Rankin: -- the present Congressional policy?

Justice Hugo L. Black: Well, I want you to matter if Congress determines what matters in great (Inaudible) unless the legal question you have argued is involved.

Mr. Rankin: Well, it seems to me that --

Justice Hugo L. Black: What effects are they?

In other words, when you said facts, the statute -- that doesn't -- you have to -- have to submit that in the Court to decide on that.

Mr. Rankin: Well often times we do.

[Laughs]

Justice Hugo L. Black: No, I mean to decide that there is effect --

Mr. Rankin: Oh, no.

No, but [Laughs] --

Justice Hugo L. Black: What the statute -- you think what's wrong about it, but there's nothing at all, you either pass on --

Mr. Rankin: Well, but they try -- we would say that this particular statute of annexation is about as clear as anybody could draw a statute to say that you have to have -- that it doesn't fix any boundary.

That it's only the property properly included within and rightfully belonging to Texas that's taken in.

And that even after a prime to protect yourself in all those particulars as the United States did very carefully because of its fear of these claims of Texas, then United States said that it had a right to adjust these boundary by this Government, that's the United States, all questions of boundary that may arise.

Now, that -- that isn't just the boundary between Mexico and Texas.

That's all questions of boundary with other governments.

That doesn't just say Mexico or one other government, it says all other governments or with other governments, which means -- would mean, all.

Well, now, to us that seems conclusive on the face of it.

But you heard considerable argument doesn't -- just doesn't mean what we think it does, that Congress didn't reserve all that, that Congress, by doing this, actually approved a three-league boundary for Texas.

Justice Hugo L. Black: What do Congress (Inaudible)

Mr. Rankin: Oh, yes.

Of course, oh, indefinitely.

I think that the Congress -- I think that if they thought there was any chance of getting the Congress to just give it to them, they would have gotten it to the Congress long ago and asked for it and gotten it.

But they came up against the legislative choice and made it and they appraised.

It's very clear in the debates, they appraised the -- the legislative prospect of ever getting a gift for their claims not for their approved legal rights, up to --

Justice Hugo L. Black: (Inaudible) 100 to 150 years ago, in Mississippi lawyer.

Mr. Rankin: Well, that's what they said.

[Laughs]

Justice Felix Frankfurter: I'm suggesting another factor in this covered by your innominate (Inaudible) I think that legislative means as the problem is complicated by the various claimants and the different degree of -- of confidence that you have in your Texas claims.

Mr. Rankin: Yes, sir.

Justice Felix Frankfurter: (Inaudible)

Mr. Rankin: Yes, Mr. Justice.

Justice Felix Frankfurter: Not only this, you could have a differentiated -- a differentiation among the States, so that they wouldn't know what happens together, you might (Inaudible)

Mr. Rankin: Well, I think, Mr. Justice, that there -- there is something to that.

But I also felt myself in reading the debates and all that happened that the Congress was trying to put up some kind of a formula that would have applied to all of the States.

Justice Felix Frankfurter: That's right.

That's what I'm suggesting.

Mr. Rankin: And if they couldn't apply that formula which would be the legal existing boundary to all the States, they didn't want it for any of them.

They didn't want to just single out any one of them and say, “You get a special deal and the -- the rest of the 47 States --

Justice Felix Frankfurter: But my point is that there's a special interest that specializes in --

Mr. Rankin: Now, if there was only one State claiming and was in there and said, “We want a special deal,” whether it could get to Congress or not, that's anybody's gift.

Argument of Victor A. Sachse

Mr. Victor A. Sachse: Mr. Justice Black, may it please the Court.

The Constitution of the United States in Article IV of Section 3 authorizes the Congress to admit States and fix their boundaries.

And it provides further that their boundaries once so fixed, are not to be changed except by action, joint action, of the Congress and of the legislature of the State concerned.

In 1803, the United States bought Louisiana from France.

And it became the first American Territory on the Gulf of Mexico.

Out of this Louisiana territory, came the State of Louisiana, the first American State to join this great Union on the Gulf of Mexico.

The creation of the State, the establishment of the State was in keeping with the provisions of the Treaty by which Louisiana was purchased that the United States would hold the area in trust, for States to be formed out of it.

And Louisiana became the keystone to the American development on the Gulf of Mexico.

What happened with us became the pattern for the Gulf of Mexico.

The people who established that pattern for us were the same people who established the pattern for the Gulf of Mexico throughout and therefore, it becomes of extreme importance to see just what they did.

To begin with, in 1804, they created the territory of Orleans.

And they did so by saying that all of that part of the country of Louisiana, which had been purchased from France, all, not just part, but all.

That was south of the Mississippi territory on the east side of the Mississippi River and south of the thirty-third degree of latitude on the west side of the Mississippi River, would constitute the territory of Orleans.

Justice Hugo L. Black: Mr. Sachse, do you have a separate brief?

Mr. Victor A. Sachse: Yes, sir.

We have one, sir.

Justice Hugo L. Black: Except for Louisiana (Voice Overlap) --

Mr. Victor A. Sachse: Yes.

And we have two separate briefs -- briefs from Louisiana.

One which we filed in August of 1958 and one which we filed in September of 1959.

Justice Hugo L. Black: So that's just in --

Mr. Victor A. Sachse: Both in white covers.

Justice Hugo L. Black: Louisiana has joint reply briefs and statements filed in --

Mr. Victor A. Sachse: No, sir.

We have brief of the State of Louisiana in our position to motion for a judgment on amended complaint by the United States which we filed in August of 1958.

And then we filed Louisiana's reply brief and motion to file with the supporting statement, which we filed in September of 1959.

Justice Hugo L. Black: Those two briefs you have.

Mr. Victor A. Sachse: Those are the two briefs at this time, yes, sir.

Now, we had filed briefs when we stood before the Court alone.

After the territory of Orleans was established, the Congress of the United States enacted the Enabling Act of 1811.

And in it, it authorized the people of a territory to form a State in the Union.

The language of that Congressional Act which is the second time the Congress spoke concerning Louisiana, is of great importance for it says that the State is to be banned out of the area, contained within all of the area, contained within the following limits, beginning at the mouth of the Sabine River and this Sabine River becomes important for us.

It is important for Texas and this Louisiana description is important for all of the Gulf States.

Beginning at the mouth of the Sabine River, at the river Sabine; thence by a line to be drawn along the middle of said river, including all islands to the thirty-second degree of latitude; thence, due north, to the northernmost part of the thirty-third degree north latitude; thence, along the said river -- and the said parallel of latitude, to the river Mississippi; thence, down the river -- the said river, to the river Iberville, which is now by a man shack near my City of Baton Rouge or to the river Iberville and from thence, along the middle of the said river, and Lakes Maurepas and Ponchartrain to the Gulf of Mexico, thence, bounded by the said Gulf to the place of beginning, including all islands within three leagues of the coast.

Justice Hugo L. Black: Is that the crucial point of the (Inaudible)

Mr. Victor A. Sachse: This is the beginning of it.

Justice Hugo L. Black: (Voice Overlap) --

Mr. Victor A. Sachse: Yes, sir.

The entirety of it is crucial, Justice Black, as we see it.

Because, our statute that is, the Act of Congress which enabled Louisiana to become a State, set a perimeter construction, it said that all of the territory of Louisiana, all of the country of Louisiana which the United States had acquired, contained within these following limits, should become the State of Louisiana, if the people adopted the Constitution and if the Federal Congress approved that Constitution.

And this description was not one which said that Louisiana would have a mainland and a number of islands or a part of a river and a number of islands.

But that we should begin at the mouth of the Sabine.

That we should go through the center line of the Sabine, taking all islands that happened to be within the center line of the Sabine, that those islands were incidental to the boundary line which is the center line of the Sabine.

But then we should go to the thirty-third degree latitude, come down the Mississippi River and to Iberville river to the Gulf, back to the point of beginning including all islands within three leagues of coast.

Again the matter of islands was incidental.

The essential thing and this Court has held -- the essential thing is that Louisiana wants to have a water boundary in the Gulf of Mexico.

And the only place, the only measure for that water boundary as set by our Act of Admission is at three leagues from coast the same measure -- the same measure which the Congress in 1953 set as the limit to which any of the States on the Gulf coast could claim these property rights of the submerged lands and the natural resources.

Justice Hugo L. Black: But it was your question as we had in (Inaudible)

Mr. Victor A. Sachse: No, sir.

Justice Hugo L. Black: Louisiana is claiming three leagues from coast or three leagues from the (Inaudible) Island, which is included in the (Voice Overlap) --

Mr. Victor A. Sachse: No, sir.

We are claiming three leagues from coast.

The fact that islands form within -- fall within the three leagues from the coast, again is a matter of an incidental affair.

In the Gulf of Mexico near the coast of Louisiana, these islands form -- they are moved by the action of the waves on the gentle incline of the bed of the Gulf of Mexico.

There is now, the sea where there once were islands.

There are now islands where there once was sea.

And we could not put our boundary, nor could the Congress put our boundary as based upon these transient islands.

The Congress put our boundary by a perimeter description three leagues from coast into the Gulf of Mexico.

That is the meaning of this language as we see it.

It is the meaning of the preposition, “within” as the courts have defined it.

It is the meaning that has been given in the only case that I know about, a New York case, which dealt with the jurisdiction of New York and it drew a line allowing all of the islands to embrace them all and it is the conclusion of this Court in the State of Louisiana against Mississippi in the 202 U.S. 1.

Now candor requires me to say that you didn't then find it necessary to say the measure of the boundary around our coast, but this Court said emphatically and categorically that it was a water boundary, a deep water channel, following the Pearl river coming around the islands going around the delta of the Mississippi and to the Sabine.

So, I say that the entire history of this matter up to this day is a recognition by the Federal Government by the State of Louisiana of a three-league boundary into the Gulf of Mexico from our coast.

Now, I'd like to go --

Justice Potter Stewart: Mr. Sachse, before you proceed, I'm not sure I understood your -- completely understood your answer to Mr. Justice Black's question, as to what your claim is.

You claim three leagues from the coast and you equate the word, “coast” with mainland and shoreline or not?

Mr. Victor A. Sachse: No, sir.

We equate the word coast in the way that the Federal Government has defined it.

That is where the inland waters meet the deep waters of the sea.

And that line has been marked long ago by the proper agencies of the Federal Government.

And that is what we claim to be our coast because that is where the Federal Government fixed it.

Justice Potter Stewart: Now, well, in other words, the coast then consists of these very islands, does it not?

Mr. Victor A. Sachse: It embraces the islands, but it is not limited by the islands.

The islands are within the inland waters.

It is the outer edge of the inland waters which marks our coast.

Justice Potter Stewart: So the coast consists of the shoreline of the seaward shoreline of these islands extended by imaginary lines extending between or among it, is that it?

Mr. Victor A. Sachse: No, sir.

Justice Potter Stewart: Roughly?

Mr. Victor A. Sachse: No.

Our coast, as we understand the way it has been fixed from the beginning of our State and interpreted by our State and by the Federal Government, by the Congress, by this Court, by other agencies of the Government consistently throughout all our period, starts at the Sabine River on the west and goes to the Pearl river on the east, coming three leagues from coast at the Sabine River and going on around three leagues from coast until it enters the Pearl river, where it was marked by this Court in the case of Louisiana against Mississippi.

Justice Potter Stewart: Well take for example islands like the Chandeleur Islands.

They're pretty well up the actual mainland, are they not?

Mr. Victor A. Sachse: They are -- if -- if you think of the mainland as -- as the land before you get to any water at all --

Justice Potter Stewart: (Voice Overlap) as you get north without your getting feet wet.

Mr. Victor A. Sachse: Yes.

They are far out from the mainland.

They are within our boundary and the Court held so --

Justice Potter Stewart: Yes.

Mr. Victor A. Sachse: -- in Louisiana against (Voice Overlap) --

Justice Potter Stewart: There's certainly there's no question but that their part of the State of Louisiana, those islands.

Mr. Victor A. Sachse: That is right.

Justice Potter Stewart: Now as your coast -- your claim is that your coast at that point begins there and that your territorial boundary goes out three leagues from there?

From the seaward coast to the Chandeleur Islands?

Mr. Victor A. Sachse: Not at that point, because this Court drew a line which separated our coast --

Justice Potter Stewart: From Mississippi.

Mr. Victor A. Sachse: -- from Mississippi.

And (Voice Overlap) --

Justice Potter Stewart: But aside from that -- aside from that problem, does your point --

Mr. Victor A. Sachse: As you have established the boundary line between Louisiana and Mississippi.

But as we come around the Mississippi delta and go to the Sabine River, the coast has been declared to be, as we understand the law, where the deep waters of the Gulf meet the inland waters and our territorial limits go three miles -- three leagues beyond that which is the measure of the quitclaim or conveyance or grant by the Federal Congress in the Submerged Lands Act to the State of Louisiana.

Justice Potter Stewart: So --

Mr. Victor A. Sachse: The important of this thing -- the important thing at the moment, I believe, is to establish that it is the three-league measure.

Neither the Government nor ourselves, believe that we can settle in this hearing.

Justice Potter Stewart: I'm sure that's correct.

Mr. Victor A. Sachse: What is the baseline?

Justice Potter Stewart: But just -- so that I can understand what we're talking about in a general way.

It is true then that you claim that the coast itself may be several miles away from the actual mainland shoreline, is that right?

Mr. Victor A. Sachse: That is true.

We think that the Congress when it admitted Louisiana and the Congress in the Submerged Lands Act made a clear distinction between coast and shore.

And our coast is somewhat out from our shore, because there is a large part of the area in front of Louisiana that is never uncovered by the movements of the tides.

Justice Potter Stewart: You do in this argument distinguished between -- or at least in your overall claims distinguished between the word, “coast” on the one hand and the word “shore” or “land” on the other, do you?

Mr. Victor A. Sachse: Yes, Your Honor, we do.

And we think that the Congress did the same thing in the Submerged Lands Act.

Now, after Louisiana, Louisiana's Act of Admission was passed in 1811, our people adopted the Constitution setting the same limits, the same boundary exactly as the Congress had proposed.

It was not until April 8, 1812, that Congress passed the Enabling Act which admitted Louisiana into the Union.

So that our boundary as it existed at the time Louisiana became a member of the Union, is a boundary which had been established prior to the time Louisiana became a member of the Union, first, by the Act of Congress of 1811, the Enabling Act, then by the Constitution of the State and finally, by the Act of Admission itself.

So we don't have the problem of what existed at the time we came into the Union.

It was well established then, that on the argument -- yes, Your Honor?

Justice Charles E. Whittaker: (Inaudible) do I understand, consistently used the description you have just given?

Mr. Victor A. Sachse: That is right, Your Honor.

Justice Charles E. Whittaker: Meaning, to the Gulf of Mexico, thence, along the Gulf, including all islands within three leagues (Voice Overlap) --

Mr. Victor A. Sachse: Not exactly that.

The exact language is, thence, bounded by the said Gulf --

Justice Charles E. Whittaker: Yes.

Mr. Victor A. Sachse: -- to the place of beginning, including all islands within three leagues of the coast.

And I might just as well meet the issue that that language might present at this moment.

It could be argued and doubtless, the Government we're arguing that we had our mainland and we had whatever islands might happen to be three leagues from the mainland.

But if we did not have a perimeter boundary, if we did not have a water boundary encompassing, falling along three leagues from coast.

Now, the only way on earth that they could deprive Louisiana of what we think Congress gave us or quitclaim to us, or relinquished to us by the Submerged Lands Act, is to prevail in such an argument as that.

And we think that such an argument would be completely fallacious.

To begin with, we think that the language, the language that any lawyer would use in trying to mark out the area that he had acquired -- the method that any surveyor would use, in trying to mark off the area that is Louisiana.

The method that the United States Coast Guard did use in marking off the water boundaries of the State of Louisiana, the method that this Court used in Louisiana against Mississippi in marking off the boundary of Louisiana was to start at the Sabine and mark a distance into the Gulf of Mexico around to the Pearl river and not attempt to run along the shore of Louisiana with a line darting out to an island here and an island there and an island in another place and going back, so that the island would be bound to us only by political bond and not a part of the area of the State, a concept which the courts have generally rejected.

And we say that everything in the history of our State to this moment supports this perimeter description.

Now, I'd like to show to the Court how the Government, the Federal Government itself, at the time the other states came into the Union, regarded the matter.

And I think it will demonstrate -- I hope it will demonstrate conclusively that the argument that Texas has made for its three-league boundary into the Gulf of Mexico, is absolutely solid and that it depends and is based upon the verity of the arguments, we now make in Louisiana.

Because you see, starting from Louisiana in the surge eastward and westward and it occurred at the same time, it became necessary for our Government to acquire territories to sustain and to fix the boundary, we explained.

These were done by the Treaty of 1890.

Now, how that became necessary I think is interesting.

But, I'm sure the Court knows this.

You know that the people from Kentucky and Tennessee came down into our area.

You know that from 1763 until 1783, the English claimed that part of our coast which is now Mississippi and Alabama and Florida.

Spain had denuded to England at the end of the French and Indian War, at the same time that France ceded Louisiana to Spain.

When England got it, England claimed six leagues into the sea through the proclamation of George III of October 7, 186 -- 1763.

Justice Hugo L. Black: What State is that?

Mr. Victor A. Sachse: This is where Mississippi, Alabama and Florida are now.

King George III divided Florida into West Florida and East Florida.

As Spain had held it, there had been no such division.

King George III made that division claiming all islands within six leagues of coast for the whole of this area and in language which I think and the lawyers of Mississippi and Alabama think, also described a perimeter in the sea, in the Gulf of Mexico, for those areas.

Now, after this occurred, came of course, the War of Independence and during the War of Independence, the Spanish under Governor Galvez in New Orleans, came into my area of Louisiana around Baton Rouge.

Had a battle with the English and drove them out.

In 1783, when our Treaty of Peace was signed, England as a part of the same transaction retroceded the Florida's -- to Spain.

So that when Louisiana was purchased and when Louisiana became a State, to the east of us, lays Spanish territory, to the west of us, lays Spanish Territory.

When the Louisiana Purchase was made, our commissioners were directed by Mr. Jefferson to claim all islands within six leagues.

And in doing so, he was giving recognition to what George III of England had proclaimed and he said so, and he told the commissioners that they should surely of such -- such claims, because England had not objected to -- to such a measure, but had proclaimed it and that Spain and France had been agreeable to it, when England proclaimed it and by all means to make like claims to the United States.

And so you see that at that time, Mr. Jefferson, who was President, was certainly not limiting their claims of the United States in the Gulf of Mexico to any three miles, but was claiming all that any of the powers which it held this area had claimed before.

However, the commissioners, while they were intent on getting the seat, because that was of importance to the commerce of the United States at the time, neglected to specifically say that they were getting that part of Louisiana which is bounded by the Mississippi River to the west and the Pearl river to the east and the Iberville river, or by a man shack to the south and the Mississippi Territory to the north.

So, our people who lived there under the leadership of a man named (Inaudible) who was the judge then, but had been Consul-General of the United States to France, had a revolution.

And they established the West Florida Republic in 1810.

And they raised there, the first lone star flag, a white star on a field of blue.

They called on the United States Government to annex the territory.

The United States did so.

And the Congress acted directing troops into the territory.

The Congress acted also in annexing to the Mississippi territory that part of West Florida which forms the coast of Mississippi and annexing to Alabama that part of West Florida which forms the coast of Alabama.

This Court recognized all that I'm talking about in Foster against Neilson.

These same people who were compelling the forward expansion of the American Government, of the American country of the United States, then moved westward and we had to deal with Spain and so we did.

In 1819, Spain ceded West Florida and East Florida to the United States.

In the very same Act, Spain and the United States agreed upon a boundary between the two at the mouth of the Sabine River in the sea.

Now, they did not say how far that point was in the sea, but the only measure that they had to go by was the three leagues, the three-league measurement which had been set by Congress with respect to Louisiana.

In 1828, when the Mexicans had their independence, this Treaty of 1819 was confirmed in 1836, when the Texans had their independence and they enacted their Boundary Act of 1836, without which they've been a lot said already.

They put it at the mouth of the Sabine and they called it three leagues into the sea and they said that it was the boundary that had been determined by the United States and Spain in 1819.

They were not taking just any point, anywhere out of the sky or out of the sea.

They went to the existing declarations of policy, the existing laws of our country at that time.

They recognized that the southwest corner of the United States and the southwest corner of Louisiana had been fixed at the mouth of the Sabine in the sea that it could only be three leagues from the mouth of the Sabine in the sea.

They put their own corner there.

And their boundary descriptions specifically says that on their eastern line, they are following the boundary fixed between Spain and the United States to the point of beginning and the point of beginning is three leagues in the Gulf of Mexico from land at the mouth of the Sabine.

Now, in the same -- in the same Boundary Act, they direct their Governor Barnett to negotiate with the United States to establish it.

And he did.

And the April 25th, 1938 Convention accepts that boundary and appoints commissioners to mark off a part of the boundary, not the entirety of it, but appoints commissioners to mark off a part of that boundary as established by the Act of 1836 tying it exactly and only to the boundary of Louisiana.

This was done.

The commissioners went down there.

They put a mound on the west bank of the Sabine at the mouth.

And the Government makes a point of -- of the location of this surveyor's mound.

But I ask you, how would these surveyors have put a mound three leagues from land in the waters of the Gulf of Mexico?

They put the mound where obviously they had to put.

And all of you as lawyers have had experience with surveyors and you know that since no surveyor can walk on the water, all surveyors from land have to have land markings, bench marks, which take you to the actual legal boundaries.

Why -- why on earth would the boundary of Texas have been fixed anywhere else than where I'm saying?

How could it have been fixed anywhere else?

A boundary has to be aligned between neighbors.

The Texans were Americans before they were Texans.

They came out of Louisiana, from Kentucky, from Tennessee, but through my area with their own star flag.

They traded with Louisiana.

The chief road into Texas at that time was a road which is now known as U.S. Highway 190, throughout Opelousas, Louisiana.

It was there because that is the nearest land to the Gulf above the deltaic formations of the Mississippi River.

And that's where the men had to travel and that's where they did travel.

The commerce between Texas and the United States was chiefly between New Orleans and between Galveston named for our Governor Galvez.

And that was where the important part of the Gulf coast territory of the United States and of Louisiana existed at the time that was the populous part.

That was the part that had economic value.

That was the part that had military value.

That was the part that our country was insistent upon.

So of course, the boundary of Texas was tied to the boundary of Louisiana, three leagues from land in the sea.

This Court recognized that boundary when Justice Harlan and earlier Justice Harlan was arguing at the Court in 1896 in United States versus Texas, 162 U.S. 1.

And while there has been called of the right of the United States to adjust the boundaries of Texas, no move whatever has been made to adjust the boundaries of Texas or of Louisiana in the Gulf of Mexico, three leagues from land.

Justice Charles E. Whittaker: (Inaudible)

Mr. Victor A. Sachse: Well, I do it the way I think the surveyor would have to do.

I do it the way I think the surveyors have done it with the U.S. coast and geodetic survey.

You go through the mouth of the Sabine and you proceed along the course of the Sabine three-league distance into the sea.

And then you proceed at the same measurements from the coast wherever the baseline of the coast is determined to be towards -- towards the eastern line of (Inaudible) and you draw a perimeter description three leagues from land and into the sea, so that all islands will thereby be embraced, though I say again that the matter of the island was an incidental matter.

The measure of the three leagues is the important measurement.

This was necessary on the Gulf coast not only of Louisiana, but of Texas and Mississippi and Alabama and Florida, because we have shallow waters there, because the Continental Shelf drops so slowly, because sometimes for a mile, boats cannot approach the shore.

In 1817, Commander Porter reporting from the Secretary of Navy, that he couldn't get within 10.5 miles of the mouth of the Sabine.

That he couldn't get within 30 miles of the mouth of the Chapel Island and a three-mile limit off Louisiana or Mississippi would not only forbid boats to travel there of any size, but then might even wait that distance from our mainland.

And necessarily, our Government in the early days of the 19th Century, taking into consideration the nature of the neighborhood which all governments, Mr. Jefferson said, should do in fixing their boundaries, placed one far enough out to get us to the deep waters that we were entitled to command.

Not wait for Louisiana, but wait for the United States.

Justice Hugo L. Black: Where is the United States versus Texas?

Mr. Victor A. Sachse: 162 U.S. 1.

Justice Hugo L. Black: 162?

Mr. Victor A. Sachse: Yes, sir.

Justice William O. Douglas: In parts of the United States, I -- I just haven't -- do that.

I haven't got down anything in that case, that touches on this maritime bill.

They were litigating there the west and the northern boundaries, I think.

Mr. Victor A. Sachse: Yes, Justice Black, they were.

But in getting -- Justice Douglas, I beg your pardon, sir.

But in arriving at their boundaries, they specifically referred to the eastern boundary of the Spanish territory, the western boundary of the United States fixed in 1819 as accepted by Texas, in 1836 as starting at the mouth of the Sabine, three leagues from land.

And that part of their boundary has never challenged.

It was that part of their boundary -- that part of our boundary which lead to the Treaty of Guadalupe Hidalgo.

There had to be some basis for the three-league measurement.

Where else could it come from except from the Acts of Congress?

Who can fix the limits of the States except the Congress?

The Constitution says Congress shall fix them.

Congress did fix them.

And our Government has acted on that ever since.

Justice Charles E. Whittaker: The moment our -- have I misunderstood you?

I understood you to say that the descriptions used in the -- the Act creating the territory that and also in the Constitution and in the Act of Admission, you began at the mouth of the Sabine and came back to the Gulf of Mexico, then saying bounded by said Gulf of Mexico, commonly including all islands within three leagues of this -- of the shore?

Mr. Victor A. Sachse: Of the coast.

Justice Charles E. Whittaker: So none of those descriptions then contain any direct reference to an extension of the boundary into the sea except as maybe implied or expressed by the phrase, “Including all islands,” isn't that it?

Mr. Victor A. Sachse: I think -- I think you've stated about as I would state it with these differences.

I think it is an expressed inclusion of three leagues into the Gulf of Mexico.

I think that it is far more than saying the mainland, plus certain islands which are not even named.

I think it necessarily means three leagues into the sea.

And then I add, but if there is any doubt in the language, if there is any doubt at all in the language, then the contemporaneous construction of it, given by our Congress over a period of years extending from 1811 when the Enabling Act was passed, until 1848 when the Treaty of Guadalupe Hidalgo was enacted, establishes beyond any reasonable doubt that at all times, the Congress of the United States meant to accord to Louisiana, meant to include in Louisiana, three leagues from its coast into the sea.

And that it was not until in the 1850s long after Louisiana was a member of the Union, long after Mississippi was a member of the Union, long after Alabama and Florida and Texas were members of the Union, that the United States began to develop any foreign policy limiting the area in the sea to three miles that the first expression of it becomes anywhere near to Louisiana, was in 1862.

And that was near to Louisiana, because that was all for Cuba, after you get past the waters of the Gulf of Mexico to the point where they are merging with the Atlantic Ocean and with the Caribbean Sea.

But so far as the Gulf of Mexico is concerned, neither Mr. Jefferson, nor anyone else for our Government until long after these States were in the Union, ever spoke at all of any three-mile territorial limit.

Mr. Jefferson himself, when he put the minimum of a three-mile limit, was dealing with the Atlantic Ocean and the first time he had to deal with the Gulf of Mexico, he called on our commissioners to claim six leagues.

Your Honors, dealt with this I think so much better than I am trying to deal with it, when you decided Louisiana against Mississippi.

When you got to that case, we were concerned with oyster fishing.

We were concerned with submerged lands.

And as Your Honor commented yesterday the idea of the sedentary fishing existed long before the Truman Proclamation and it was involved in this litigation of Louisiana against Mississippi.

We had laws requiring the fishing and handling of oysters to be done in a certain way.

Mississippi had different laws, a conflict arose.

And it came to this Court and this Court said the islands, marsh or otherwise, claimed by Louisiana in this case were all within three leagues of our coast.

The act admitting Mississippi was passed five years after Louisiana Act, yet Mississippi claims under the disputed territory.

Then talking about the rule that no State can be deprived of its prior territory, the Court proceeded.

And when the Louisiana Act used the words, “Thence bounded by the said Gulf to the place of beginning including all islands in three leagues of the coast,” the coast referred to as the whole coast of the State and the peninsula of St. Bernard formed an integral part of it.

Lake Borgne in Mississippi Sound, the bodies of saltwater and as such parts of the sea or gulf and as the coast of Louisiana began along the north shore of peninsula, it is not to be supposed that the islands referred to by Congress in the Louisiana Act were solely those islands to the south of that State.

I'd like to pause here to note -- to ask Your Honors to note the erroneous way in which I think the Government has treated this decision.

The Government has undertaken to treat it, if I understand it correctly that all with the Louisiana and Mississippi decision was concerned with was the St. Bernard peninsula.

But the Court fixed the boundary for the St. Bernard peninsula on the basis of our coast into the Gulf of Mexico that is, deep water, where the inland waters meet the deep waters.

And because it is so important, may I read to you just another part of it.

The Court said, “The United States Geological Survey published in the year 1900, a bulletin devoted to a discussion of the boundaries of the States territories and giving a history of changes as they have occurred.”

In the opinion of that bureau, Louisiana was originally bounded by the deep water channel and is the owner of the areas in dispute today according to the report and accompanying sketches and this Court made those sketches a part of its decision and so a water boundary into the Gulf of Mexico.

Now, you'll find that sketch, Your Honors, on page 21 of Louisiana's separate brief.

I'd like now to say this, when the Submerged Lands Act was before the Congress, Louisiana's position was made clear.

No one was left in doubt that Louisiana was discerning a claim to three leagues from coast.

Our Governor Kennon came up and appeared before the Committee hearings and made it specifically, categorically and as I'm trying to make it now.

Moreover, when the report was formulated, the -- the same exhibit to which Governor Daniel referred said categorically that the areas which would go to the State coincide with the three-mile limit for all States except Texas, Louisiana and Florida Gulf coast.

In the latter cases, the three-league limit as established before or at the time of entering into the Union has been used.

And it was this Committee Report which represented the better opinion, at least the one accepted by Congress, because it was this majority report which led to the adoption of the Submerged Lands Act by Congress.

Justice Hugo L. Black: So that they were granting the land after (Inaudible) why didn't they (Inaudible) and as I understand it, you are arguing that by reason of that statement, the land -- the Act itself, grants Louisiana the three leagues.

Mr. Victor A. Sachse: No, I rather -- I recognize that we have to be in Court.

That we have to ask this Court to find as a matter of fact and law, that our boundaries as they existed at the time we came into the Union, that is, as established by our Enabling Act and our Constitution and our Act of Admission and as recognized by Congress thereafter, are where I say they there.

I do not mean that the Submerged Lands Act was self-operating.

But I do mean that it is no -- could be no surprise to any Congressman or anyone in the United States that the Louisiana -- State of Louisiana asserted a claim to three leagues into the Gulf of Mexico from coast.

And I'd like to add this.

That in the Government's brief, the Government undertook to say that Senator Holland of Florida, while he did present this map to the Committee later said, that the map was not correct as to Louisiana.

So Mr. Scott will consume, my colleague in this case, undertook to make the calculations necessary to demonstrate and he does demonstrate conclusively in the reply brief which we filed in September of this year, as Your Honors will see on page 13 that the area claimed for Louisiana as shown in this exhibit, depends upon the three-league measurement.

That it is 397 shorelines in miles, multiplied by 10.5 land miles to make, that's the three leagues, to make the 4168.5 square miles.

The report says 4169 square miles and I guess we won't be held with the other half-mile.

Justice Potter Stewart: Mr. Sachse, may I ask?

I notice that the 397 shorelines in miles, that you've been telling on the shore line as you mean for this coastline (Inaudible) the inland and the deep water (Inaudible)

Mr. Victor A. Sachse: Well, I give it to you as it reads in the report.

The measurements on the map shown yesterday by Mr. Gremillion, show a coastline measurement.

Justice Potter Stewart: And that's something different in shorelines, doesn't it?

Mr. Victor A. Sachse: Yes, but the measurement that the Government made was on the basis of the coast, 397 miles.

Justice Potter Stewart: Even though they call it shore?

Mr. Victor A. Sachse: Yes.

And the Government now, through the Solicitor General, admits that our calculations were correct.

That Senator Holland was right at the time that he was saying that it showed three leagues for Louisiana and in error, asking himself wouldn't it, when he said it did not.

Because the Government on its final reply brief or last reply brief if not final, on page 13, admits that our figures are correct and that the three-league claim was, in fact, clearly before Congress at the time.

Justice Charles E. Whittaker: What would that do in this case?

Mr. Victor A. Sachse: I think it proves this, Your Honor.

That we do, in fact, have a three-league line because the report to Congress was based upon the coast and geodetic survey made by the Federal Government in November of 1950, long before there was any conflict between the States and the National Government over the oil, because the oil was not then known.

And I say to you -- I say through the Court that there is thus a long sequence of recognitions by the Federal Government starting in 1811, coming down to 1915 at least, during which the Congress, this Court, agencies of the Government recognized a water boundary for Louisiana and whenever a measurement was applied, that measurement was three leagues from coast.

I think that to say now, Louisiana has something less than that is to turn all of history backward.

It's to disregard all of the history of the Gulf coast area and is to say that we are limited.

We are limited to three miles only because after 1860 -- after 1860, the Federal Government began to talk of three miles in the Gulf of Mexico.

That's not the test made by the Submerged Lands Act.

The Submerged Lands Act submits the test of boundaries as they existed at the time or if we use Section 4 or prior to the time that the State became a member of the Union, or as approved by the Congress after that time.

We say that when we were admitted into the Union, Congress declared for us a boundary of three leagues in the Gulf of Mexico, that Congress applied that three-league measurement in the Gulf of Mexico as to Spain, Mexico and Texas, and finally, again at the western end of Texas with Mexico and that we have met the test which the Congress submitted by the Submerged Lands Act.

When I spoke to the Court in April 1957, I took occasion to say to the Court and I'd like to say again, that the same Congress which passed the Submerged Lands Act passed the Outer Continental Shelf Lands Act.

That the Congress did not say in the Outer Continental Shelf Lands Act that this area began three miles from shore or three miles from coast, but that it began to where the submerged lands yielded to the States, relinquished to the States, or vested in the States.

And I think that the Submerged Lands Act shows clearly that the Congress knew of the decisions of Your Honors, in the California case, of the decision in the Louisiana case.

They knew that Your Honors had said that at the turn of the century, there had been no general agreement and I talked about at the beginning of the 19th century.

There had no general agreement upon any three-mile limit.

As a matter of fact at that time the French writers and the Spanish writers from whose domains Louisiana came, were consistently claiming a three-league boundary as appears in our briefs.

I think that the Submerged Lands Act and the Outer Continental Shelf Lands Act together, show that Congress was fully aware of the meaning in which boundary was to be used.

As a matter of fact, in this Outer Continental Shelf Lands Act, the Congress said, “The Constitution and laws and civil and political jurisdiction of the United States are hereby extended to the subsoil and seabed of the Outer Continental Shelf and to the extent they are applicable, they also permitted the extension of state laws with the expressed declaration that this would not have the effect of extending the property rights conveyed by the Submerged Lands Act to the States.”

But we think it is clear that Louisiana is entitled under the Submerged Lands Act to three leagues into the Gulf of Mexico from coast.

Justice Potter Stewart: Mr. Sachse, before you sit down, just a present question I asked you earlier, to extend it a little bit.

You've told us that you distinguish between the word “coast” and the word like “mainland” or “shore” or “land”, the “coast” means something else.

“Coast” means where inland waters meet the sea, is that right (Voice Overlap) --

Mr. Victor A. Sachse: So defined by --

Justice Potter Stewart: So defined by agreement.

Mr. Victor A. Sachse: -- statutes of the United States.

Justice Potter Stewart: All right.

And that this -- and you assert that Louisiana's territorial boundary extends three leagues beyond coast as so defined, is that right?

Mr. Victor A. Sachse: That is right because that is what the Submerged Lands Act says and that is what our Act of Admission says.

Justice Potter Stewart: Now, as a matter of fact, of geographical fact, are there any islands within three leagues from the coast as you define the word “coast”?

Mr. Victor A. Sachse: They are all inland.

Justice Potter Stewart: They are all in --

Mr. Victor A. Sachse: In --

Justice Potter Stewart: -- north --

Mr. Victor A. Sachse: Inland --

Justice Potter Stewart: -- toward mainland.

Mr. Victor A. Sachse: -- from the three-league line.

And most of --

Justice Potter Stewart: Now, from the coastline, I'm asking now, from the coastline as you've defined the word “coast” --

Mr. Victor A. Sachse: Most of --

Justice Potter Stewart: -- are there any islands seawardly within three leagues?

Mr. Victor A. Sachse: Most of them now, I would say, are inland from the coastline.

But there were islands at the time Louisiana came into the Union, which were beyond that.

Justice Potter Stewart: They were what?

Disappeared?

Mr. Victor A. Sachse: Yes, by the actions of the waves.

We have one island, Kimberley Island that's moved nine miles.We have other islands that are going altogether.

And these islands come and go, as the waves move them.

By taking up here and building up there, but my associates say and I'm sure they're correct, that there are still islands beyond our shoreline -- our coastline, but within the three-league measurement.

Justice Potter Stewart: My thought, for example, is and I haven't got the map of Louisiana visually before me, but if the actual shorelines say of the Chandeleur Islands is part of the coastline, as you've defined it, there are no islands within three leagues seawardly of there, are there, going to Louisiana?

Mr. Victor A. Sachse: The Chandeleur Islands is between us and -- around the boundary between us and Mississippi.We encompass the Chandeleur Islands and then Mississippi begins.

And so, we don't claim into the Mississippi waters recognized as belonging to them by this Court in Louisiana against Mississippi.

But to the south, which we -- to the south of Louisiana, we claim the full three leagues, because there has been no curtailment thereof and could be no curtailment thereof, once having been established by Congress under Article IV, Section 3 of the Constitution.

Justice Hugo L. Black: Solicitor General.

Rebuttal of Rankin

Mr. Rankin: Mr. Justice Black and may it please the Court.

I assume the Court hasn't had an opportunity to examine carefully the map that was before the Court to whom Mr. Gremillion was presenting his argument.

But if overnight you would look at that map and see the coastline that they're now claiming, I think you'd all be shocked.

We were on behalf of the United States because --

Justice Hugo L. Black: Which map?

Mr. Rankin: I think it's in your portfolio and it's --

Justice Hugo L. Black: I looked at the map in the 202, is that the same one, 202 U.S.?

Mr. Rankin: Maybe Mr. Gremillion could help me.

Justice Hugo L. Black: Yes.

I know, I (Inaudible)

Mr. Rankin: And Mr. Justice Black, Mr. Gremillion tells me it's in the portfolio.

Justice Hugo L. Black: Yes.

Mr. Rankin: And they are taking as their coastline --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Rankin: Which one?

Justice Felix Frankfurter: Number 1.

(Inaudible) 1115 and 1116 and -- and joined the (Inaudible)

Argument of Attorney General

Mr. Attorney General: (Voice Overlap) --

Justice Felix Frankfurter: -- not one in your --

Mr. Attorney General: I think that's correct, I don't have the portfolio you're talking about.

Rebuttal of Rankin

Mr. Rankin: You'll note upon looking at that that what they are claiming as the coastline is extended way out in the Gulf and is in fact, the line that was drawn by the Coast Guard under a special statute of the United States.

Unknown Speaker: (Inaudible)

Mr. Rankin: That's right.

And the Coast Guard Commandant said in expressed language that he was not drawing it for any such purpose.

That he was not making any marginal sea boundary of any State or for the United States that the only purpose of it was to draw the line for navigational purposes.

Justice Hugo L. Black: Are we called in this case to decide where the coastline is?

Mr. Rankin: No, you are not, Mr. Justice Black, at all.

We -- the Government says you're not.

And I -- I think it's all agreed.

The problem is that in answering some questions, if you put the Coast Guard line or -- or the coastline out that far, already give the most to the Outer Continental Shelf just by moving it around.

And the idea that you could have the Coast Guard Commandant be able to draw the boundaries of the States or the Gulf from to time to time and change them back and forth, I'm sure it was not conceived by Congress and wouldn't be approved by this Court.

Justice William J. Brennan: (Inaudible) this is the right time (Inaudible)

Mr. Rankin: Could you answer Justice Brennan?

Rebuttal of Attorney General

Mr. Attorney General: (Inaudible) I can answer.

That is Louisiana boundary of three leagues from our coast.

That Act was passed after the Submerged Lands Act, the reason that it's passed is passed to redefine our boundary in the Gulf and the navigation line is surrounded (Inaudible)

That was the line that the Coast Guard bound to be our coast in keeping the decisions of this Court, the same line upon which the (Inaudible) of all on that the Solicitor General talked about might not be seen.

Justice William J. Brennan: I think it measures (Inaudible)

The coastline itself and the claim is about (Inaudible)

Mr. Attorney General: It was the middle line which coincides with the Coast Guard line and navigational (Inaudible) the other line seaward is three leagues from our coast.

Justice William J. Brennan: Yes.

I -- I found it.

Thank you.

Rebuttal of Rankin

Mr. Rankin: I just want to point out to the Court that the lines they are using is the Coast Guard line as what they call a coastline, but that problem is not before the Court.

We're asking the Court to determine the question of three miles and three leagues in this litigation.

And of course the Government does not, I want to make a claim, the Government does not concede that the three miles or the three leagues will be drawn from any such line as the Coast Guard line.

Justice Felix Frankfurter: Or from any line (Inaudible)

Mr. Rankin: That's right.

Justice Potter Stewart: Except the very meaning of the -- their claim depends upon islands within three leagues of the coast and if there are no islands, or if not many islands as any substitute in the coast, three leagues in the coast as now defined, this would be a factor in construing the meaning of that description, would it not?

Mr. Rankin: Yes, Mr. Justice.

It makes the claim much more difficult to maintain in that kind of a contention.

We do not think it's a proper construction of what was done back at the time that Louisiana was created.

And I like to tell more about it tomorrow.

Print this transcript Transcript: 

Argument of Rankin

Chief Justice Earl Warren: Number 10, Original, United States of America, Plaintiff, versus the States of Louisiana, Texas, Mississippi, Alabama and Florida.

Justice Hugo L. Black: Solicitor General.

Mr. Rankin: Mr. Justice Black, may it please the Court.

I shall try to stay away from any repetition of matters that we have covered in connection with these cases and deal with the problems in regard to Louisiana.

I think it should be kept in mind that Louisiana was created like Alabama and Mississippi out of territories and they were creatures of the United States and as such the problems in regard to that are different than they would -- they are as to an independent country like Texas was prior to that time.

The claim was made that the boundary of Texas -- excuse me, of Louisiana was provided for as beginning three leagues in the Gulf at the Sabine River.

That claim was made in their briefs and also in argument and we find no justification historically or in anyways just said that their boundary began at a point three leagues in the Gulf at the mouth of the River Sabine.

Justice John M. Harlan: At the time of the admission.

Mr. Rankin: That's right.

Now, the Act just didn't provide for that.

They also refer to the Treaty of 1819 with Spain.

You will recall that we have been over the fact that the Treaty of Spain of 1819 was used by Texas in connection with the Treaty that made when she was an independent State as Republic of Texas in the agreement between the United States and Texas as to what her boundary would be.

It was used as a basis for the -- both the same terms were used in the Treaty with Mexico in regard to boundary.

And on page 185 of the Government's brief, we set out the language of that Treaty in Article II, words indented defining the boundary between the United States and the area then belong to Spain because it was part of Mexico in 1819.

The boundary line between the two countries, west of Mississippi, shall begin on the Gulf of Mexico at the mouth of the River Sabine in the sea.

There's nothing about three leagues at all continuing north along the western bank of that river.

Well, that's just what the parties agreed at that time and they carried it down to the treaties that I have just described.

Now, below on that page, close to the bottom, is the exact language that was used in connection with this survey that was described by counsel for Louisiana, Mr. Sachse in his argument.

And he said, “Well, of course, the surveyor couldn't walk on the water and put some marker out there.”

And so, he just didn't say anything about the three leagues in the sea that they were to have when he was marked the place that the boundary would start.

But under all practice of -- of surveyor, certainly, it -- he agreed he couldn't walk on the sea and he could have put up a marker of course but he wouldn't have to do that.

He could've said in the language of his minutes like is often done by surveyors when they can't reach a certain point that if so many feet or miles or somewhat something else from this particular marker that the boundary starts.

But he said the -- boundary convention, what they agreed on was reestablish the point of the beginning of the boundary, the beginning of the boundary between the United States and the Republic of Texas at the mouth on the western bank of the junction of the River Sabine with the sea.

There's nothing about three leagues if they ever put in to it at all.

And certainly, it would seem reasonable that if they want to extend to three leagues, and if you recall that the convention provided that when they agreed on this boundary, it would be the same as though it was written in there as a part of the original agreement.

But they said, “That was where the boundary began, at the sea.”

Now, on regard to the same problem you recall, counsel said that their boundary was conceived the sort of an extension of Texas boundary.

So, they argued Texas boundary was three leagues validly such as a part of the argument of Louisiana.

You recall that during the argument of Texas case, they referred to the instructions to Mr. Trist who negotiated in regard to the Treaty of Guadalupe Hidalgo and said that he was instructed to follow the statute of Texas of 1836.

Now, that is on page 102 of the Texas brief, the yellow brief.

And they set out at the bottom of the page there and they've indented it the language as to the instructions of Trist.

And I'm sorry that I was so late about getting this dug out because it impressed me that in going over and reading it again that that was an important consideration if this man who was to negotiate the treaty between Mexico and the United States that became Guadalupe Hidalgo was instructed to follow this particular statute and that's all there was to it that it was a major importance.

And they cited, as you will note, in the footnote certain papers of Mr. Trist that are in the library of Congress.

So, I ask one -- some of our staff to dig that out and see what -- what the fact was in regard to it.

And now, let's see what the fact was, what the instructions really were.

The notes there -- and this is not in our briefs.

So, if you care to examine it further, you'll have to make a -- a note of it.

But I'll -- it's all revealed here if you check back against the papers that they cite in the notes.

I'm sorry that there is 211 pages of manuscript that's in longhand that Mr. Trist filed there as to the justifications for his action.

But he incorporates in it.

And there is no question about it.

The instructions to Mr. Sidwell as to what should be done in regard to the boundary.

Justice William J. Brennan: Now, Mr. Solicitor, are we on the page to which was cited here 62071 in the Texas brief footnote?

Mr. Rankin: Well, it --

Justice William J. Brennan: What you're going to read us, I mean?

Mr. Rankin: 62071.

Justice William J. Brennan: Well, apparently, volume 33 miscellaneous page 62071.

Mr. Rankin: Yes.

That's -- that's where this is without --

Justice William J. Brennan: You're reading from that page?

Mr. Rankin: Yes, I will give you what's on that --

Justice Felix Frankfurter: Have you prominently suggesting there were 211 pages of footnote refer only to three?

Mr. Rankin: Yes.

I'll tell you --

Justice Felix Frankfurter: Do we have to go through the 211 --

Mr. Rankin: No.

I'll try to --

Justice Felix Frankfurter: -- to satisfy one self directly?

Mr. Rankin: Not in regard to this problem.

I'll try to briefly tell you what the rest of the 211 consist of and you care to go for that.

I don't think it bears on this particular problem.

What I'm trying to illustrate here is that the material that they say as to what the instructions were is not quite accurate.

After the point that they give you which is -- that the object stands and said instructions specifically stated and expressed, it was the object of prevailing upon Mexico to agree to the line shall be established along the boundary defined by the Act of Congress of Texas approved December 19th, 1836.

Justice Hugo L. Black: What page are you reading?

Mr. Rankin: I was reading from their brief, 102.

Justice Hugo L. Black: 102, I take it.

Mr. Rankin: And that indented portion toward the -- on the bottom of the page there.

Now, to me, that -- without more, look like they were telling Trist and Sidwell, “You go down there and negotiate according to this statute.”

Maybe I read something into it that isn't there, but that's the way I read it on the face of it.

Then, when I found what the instructions really were, I find that after that comma there, or they don't have the comma after 1836, but there is a comma, there is the word “to wit, beginning at the mouth, beginning at the mouth of the River Rio Grande”.

Excuse me, I think the river isn't Rio Grande."

Beginning at the mouth of the Rio Grande; dense up to principal stream of said river to its source; dense do north to the 42nd degree of north latitude."

Now, that is a definition follow this boundary, as I read it, and you can each judge of course for yourself very well.

As I read it, it's the statement follow the statute but “to wit” is a specific -- specifically --

Justice Felix Frankfurter: Do you think “to wit” cuts down the Act of December 19th as if to with the limit anything that might be found to be beyond what -- what follows “to wit” in the text you're reading?

Mr. Rankin: No, I think “to wit” is the text that I have read following says, “You follow that statute except --

Justice Felix Frankfurter: What I want to know is whether the “to wit” curtails anything that was approved on December 19 that goes beyond the language following “to wit” clause or “to wit” phrase.

Mr. Rankin: Well, as I read it, the instruction is, “You follow the statute but this is what you follow.” And it --

Justice Felix Frankfurter: Only that part of the statute and nothing else, is that it?

Mr. Rankin: That's -- that's the way I read it.

Because there is no words of three leagues about it at all.

Instead it says, “Begin at the mouth of the Rio Grande”.

Justice Felix Frankfurter: (Inaudible) does it?

Mr. Rankin: No.

It comes down to degree of north latitude and quits.

Now --

Justice Potter Stewart: That doesn't -- the use of the word -- the phrase, “along the boundary” mean that the instructions were to use that part to -- that part of the boundary along that boundary in the negotiation.

It doesn't say to incorporate the entire boundary.

He's just referring to that part of the boundary that's in dispute, isn't that a fair construction?

Mr. Rankin: Well, I would think that --

Justice Potter Stewart: I mean, let's say we have a 500-mile boundary, we can negotiate for 10 miles along that boundary.

Mr. Rankin: I think that is a fair construction.

It seems to me that the quotation left out the limitation on the meaning of what they were saying about the statute.

Now, everybody can interpret for himself what that language is.

But it's clear there is no question about the facts that the instructions incorporated the language that I say in regard to the “to wit” and it said nothing about three leagues all over -- statute does say three leagues.

It said, “Beginning at the mouth of the river,” and then proceeding and so forth.

Justice Felix Frankfurter: My question is why does -- did your argument has any significance to imply that the three-league were deleted by virtue of the fact that they were not included in the language that follow phrase “to wit”?

Mr. Rankin: Well, that's the way I construct --

Justice Felix Frankfurter: That's the way you read it?

Mr. Rankin: -- I read it.

I may be mistaken, but I --

Justice Felix Frankfurter: It cuts down what the statute says and restricted nearly to what it follows “to wit”.

Mr. Rankin: Yes.

Now --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Rankin: -- I -- I did further asked that it'd be examine, the whole 211 pages to see if there was any discussion of any kind in regard to three leagues.

And our examination of the 211 pages, all handwritten was not such that we could tell you every word of it.

We didn't try to copy that.

But we did try to search whether there was a word of three leagues in it and we found none.

Justice Felix Frankfurter: That's two-edged argument, isn't it?

Mr. Rankin: I think it's pretty strong our way, but I may be wrong.

Justice Felix Frankfurter: I mean they didn't -- were to refuse.

Mr. Rankin: Well, I would think that if --

Justice Felix Frankfurter: You don't talk about a thing because it's not -- nobody can tell.

Mr. Rankin: If someone would say that you -- when you describe or say “to wit” in regard to a boundary that I thought was is important that involve three leagues in my statute and if somebody tried to leave it all on me and negotiations, I would certainly say, “You put it in there.”

Justice Felix Frankfurter: In the light of the Submerged Lands Act.

Mr. Rankin: Well, I think if it was important at the time to anybody.

Justice Felix Frankfurter: What if everybody accepted it?

I'm not saying everybody did but if it is to the matter of Court, even careful lawyers don't always spell out things that matters before us.

Mr. Rankin: Well, then, I'll give you another example where they left it out.

It was stated in the -- in the Texas brief that, certainly, there must have been in the Jackson papers when he sent this communication to Congress, there's 10 different reports.

Some one of those reports must have had something in it about the Texas statute, and one of them did, only one.

And in that particular paper, it was a description of the statute by lieutenant colonel -- a colonel of a corps of topographical engineers at that time in which he said, “Beginning at the mouth of the Rio Grande” leaving out any reference of three leagues at all.

I don't know why it was left out.

If it was important and mean anything that they were contending for, why in the world would it be left out in these important considerations?

That's the only observation that I can make in regard to it.

I think, any man can make his own construction but it seems to me if it was any kind of an issue between these people that they are contending for, that they wanted for any purpose and to maintain that that was their maritime boundary as between the United States or the rest of the world, or Mexico that they wouldn't have left it out in important communications of that kind.

Justice William O. Douglas: What was the reference to President Jackson?

Mr. Rankin: Well, there was a communication --

Justice William O. Douglas: His message to Congress?

Mr. Rankin: Yes, his message to Congress.

And then, in the Texas brief, they say that out of all those 10 communications that were attached to it, there is certainly would be some reference to the statute.

And there was a reference, and there was an -- only one in one of them.

And in that, it was a description of this statute by the corps -- this representative of the corps of topographical engineers, and it referred to -- beginning at the mouth of the Rio Grande and said nothing about three leagues whatsoever in describing the statute.

It seems to me that was delivered to Congress as to what the statute was, and it was inaccurate, it was incorrect as to what the statute contained.

But it did show that in bringing the matter to the attention of Congress, even the people like topographical engineers were specialist in that field did not place any importance on that provision and they didn't even recited to the Congress.

Now, it's also said that we claimed islands 20 leagues into the sea because of the Treaty of Paris in our settlement of the revolutionary war.

And we did receive a session of the islands 20 leagues in the sea.

But it's -- no one has ever claimed on behalf of United States that we had any maritime boundary at that point.

We claimed that those were islands belonged to United States such as there are and the three miles runs around them, just like they would run around the sea coast.

That's all has been in the position of the United States as it maritime boundary.

It's also said that as to the Bering Sea that we receive a session or grant from Russia that included some of the sea for large distance.

But that just isn't born out by the history.

The grant itself was not for the sea.

It said territory on the islands and continent and marked this as the line.

It didn't say any part of the sea and then there was an act in Congress where they tried to claim part of the sea, and the Congress rejected any such claim.

And then the Bering Sea arbitration proceedings, it was adjudicated that the United States had never claimed more than three miles.

And that's the part of the decision of that arbitration that was binding upon the parties, and I think it was in a careful examination of the United States position and the history of it and all that happened.

So, there just isn't anything to that claim either.

Now, it also said that with regard to Alaska, we claim the territory out 10 miles from the coast.But that isn't -- that is incorrect too.

The fact is that the description is in regard to the 10 miles inland.

And if you examine that description of the session, you will see that it described 10 miles inland and not seaward and the purpose was to take care of that area between British Columbia and the coast that we acquire in that session, and that just all there is to it.

It works out mathematically, the language describes it, there isn't any basis for the claim that we were making any kind of a claim for 10 miles seaward under that session and we never have.

Now, the United States thinks that when the provision was made in the Enabling Act, hence, bounded by the said gulf to the place of beginning that that means that you run along the Gulf but you don't run out three leagues in order to determine what the territory of Louisiana was that came into the Union at that time.

Justice Hugo L. Black: But what's the gulf?

Mr. Rankin: The gulf would be, as to -- it seemed to me, as to Louisiana would be the coast.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: Yes.

As -- now, we don't question.

But including the -- including all islands within three leagues mean have some meaning.

We say that those islands within three leagues were included but not the water in between as a part of the territory.

Justice William J. Brennan: Are these questions -- did you answer Justice Whittaker to three miles from the coast or --

Mr. Rankin: Well --

Justice William J. Brennan: -- I mean high gulf of (Inaudible)

Mr. Rankin: In -- there is a distinction in the Enabling Act for Louisiana between that for Mississippi and Alabama in that they used the words "coast" in that Act and in the others they used "shore".

And I'm just trying to say that I thought that in -- in light of that, the Gulf would be the coast for the State of Louisiana.

Justice William J. Brennan: What is the coast?

Mr. Rankin: Well, those are two technical words.

I think I can describe it and we have it in a footnote in our brief that “coast” is where the sea meets the land and the inland waters, and the “shore” is the median low point where the water meets the ground I mean.

Maybe that doesn't helping, that's [Laughs] --

Justice William J. Brennan: Well --

Mr. Rankin: -- technical explanation.

Justice William J. Brennan: (Inaudible)

Mr. Rankin: Well, it seems to me the difference between “coast” and -- and “shore” is that we regard on (Inaudible) where there was no question of what was a -- a say that would comply with the requirements that you can choose across and protect against foreign (Inaudible) coming into it.

It used to be an arbitrary rule of 10 miles limit.

It has been observed by some international acts.

But there would be a coast review here, and I think the shore would be wherever the water would come up on a median low point on any of the mainland ground.

Justice Felix Frankfurter: Can it be translated into miles?

Mr. Rankin: Well --

Justice Felix Frankfurter: Or either.

Mr. Rankin: -- the concept of shore and coast is -- is not based on miles.

It is based on where the waters come together and the --

Justice Felix Frankfurter: But if -- if it isn't with boundary but I would like to know so that coast or shore indicates how many miles out from the -- from the actual foot of land from the coast when you say coast and shore.

Mr. Rankin: Well, it would make a substantial difference in -- if you would use “coast” instead of “shore” because you do, there, take into account inland waters.

But there -- and so, when there are inland waters recognized such you measure from there instead of going back to where the land is and where the --

Justice Felix Frankfurter: It can go out three miles of any -- at any rate?

Mr. Rankin: Oh, yes.

And --

Justice Felix Frankfurter: Why -- why three miles?

Because the statute said it or national --

Mr. Rankin: The --

Justice Felix Frankfurter: -- policy or what?

Mr. Rankin: Well, you would go --

Justice Felix Frankfurter: When you get the three miles from, is what I want to know.

Mr. Rankin: It's the maritime boundary of the United States.

It's the policy of the United States.

It's been --

Justice Felix Frankfurter: But it doesn't have to be because the station have left into three miles.

Mr. Rankin: That's right.

Justice Felix Frankfurter: So that what I want to know is, what determines the Louisiana's boundary of the State not the national boundary but three miles?

Mr. Rankin: Well, the -- at the time, they didn't place the three miles.

When they -- it entered the Union, it was just at the coast.

Justice Felix Frankfurter: So that 23 miles at all.

Mr. Rankin: No.

Justice William J. Brennan: It's only under Section 4, I gather, of the Act.

What the Government's position is they make sense, the three miles.

Mr. Rankin: Yes.

And further, the fact that they did pass statutes from which they went a 127 miles.

Justice William J. Brennan: So, now, this -- this (Inaudible)

Mr. Rankin: We don't --

Justice William J. Brennan: -- trying to get to -- we heard from Mr. Sachse yesterday that “coast” for the purposes you just mentioned, the three miles provision --

Mr. Rankin: Yes.

Justice William J. Brennan: -- that some artificial line, as I understood follows clearly.

Are you in accordance with (Inaudible)

Mr. Rankin: Oh, no.

We disagree very violently.

Justice William J. Brennan: Yes.

Now, what we see on the map behind us are measured from this line about what Mr. Sachse told us yesterday?

Mr. Rankin: As I recall the black line saying Louisiana Boundary Act 33 of 1954 is the boundary they claim as of 1954 which they claim as the coast on which they would measure their three leagues.

Justice Potter Stewart: No, I think you're mistaken, Mr. Solicitor.

Mr. Rankin: Is that wrong?

Justice Potter Stewart: I think that black line is a line parallel to and three-league -- three leagues distant from a line delineated by the coast guard seaward of which the international rules on the road applied to navigation and manner of which the inland rules of the road apply.

Mr. Rankin: Mr. --

Justice Potter Stewart: The latter one being the coast according to Louisiana and the black line being three leagues seaward of the coast.

Mr. Rankin: That -- that's what they say at the --

Justice Potter Stewart: I'm not saying their position (Inaudible)

Mr. Rankin: Our position is that it would three miles but back to the coast which would go back to the islands that we recognized are apart and also along the shore or along the technical coast and then there are inland waters recognized under --

Justice William J. Brennan: Well, it is to say that what the line is the Government tried to -- just has yet been defined.

Mr. Rankin: That's right.

Justice William J. Brennan: And this -- this would still, whatever the outcome is for date, even been measuring the three miles that the Government position is there will have to be measured in some of the coastline not yet determined if the Louisiana position with the coast guard (Inaudible) is that right?

Mr. Rankin: That is right.

Justice Felix Frankfurter: Do I understand you, that the three miles, our virtue of Section 4 of the Act under consideration and not three miles as of the time that Louisiana came into the Union.

Mr. Rankin: Yes, Mr. Justice.

Justice Felix Frankfurter: And in what document do I find the answer?

What document can I clearly find out the three miles the time Louisiana came in?

Mr. Rankin: Well, we rely upon the Enabling Act and we set out a portion of it on page 172 of the Government's brief.

Justice Felix Frankfurter: The original brief?

Mr. Rankin: Yes.

Justice William J. Brennan: What page?

Mr. Rankin: 172.

Justice Hugo L. Black: How was it treated in the -- in the Louisiana and Mississippi case of the paragraphs one and two?

Mr. Rankin: Well, if you recall, Mr. Justice Black, you said, that is the Court said in U.S. against California that the Court never had to consider the question of the maritime boundary in that case.

It's claimed by Louisiana that they did but the Court specifically said that and the Government thinks that it was not considered.

Now, when they talk about the deep channel, that was over the deep channel of the rivers there that the Court was talking about in that case and wasn't the deep channel out in the waters in the sea or anything like that as we think it's clear in the language of the case.

So that the recordings did not in Louisiana against Mississippi decide what the maritime boundary was, it expressly said it didn't.

And this Court referred to that language in U.S. against California.

Justice Hugo L. Black: Maritime boundary in the Louisiana against Mississippi.

I understood you to say, yes there, did you not?

Mr. Rankin: Yes.

Justice Hugo L. Black: And the Government in reliance as having decide to maritime boundary of the U.S. (Inaudible)

Mr. Rankin: Yes -- no -- I did -- I don't be misunderstood.

In U.S. against California, you referred to the case of Louisiana against Mississippi, and you said that the Court in Louisiana against Mississippi did not decide what the maritime boundary was.

That's the reason I was referring to that case because you expressly referred -- the Court did to that fact itself but it didn't decide that question.

Justice Hugo L. Black: The national maritime boundary.

Mr. Rankin: Or for the States in that case.

We didn't decide the maritime boundary at that time.

Justice Felix Frankfurter: Is the Government arguing that the national boundary and the state boundaries must be --

Mr. Rankin: Coexisting?

Justice Felix Frankfurter: The state boundary never can be larger or broader than -- larger than the national boundary?

Mr. Rankin: Yes, Mr. Justice.

But it never could be beyond because then it would be foreign territory.

Justice Felix Frankfurter: But wouldn't it be -- might -- might not be foreign territory or it might be nobody's territory therefore if --

Mr. Rankin: Well, with -- with part of the State, be out in the Union --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Rankin: -- impart of the Union --

Justice Felix Frankfurter: (Voice overlap) it isn't foreign territory even when the -- our national policy, is it?

It isn't foreign territory I hope and isn't nobody's territory.

Mr. Rankin: No.

Our own -- our whole claim is that, beyond --

Justice Felix Frankfurter: Everybody has access to it.

That's --

Mr. Rankin: That's right.

That belongs to everybody.

It's freedom of the seas.

Justice Felix Frankfurter: Alright.

You say it's for the Government, but I say it belonged to nobody.

Mr. Rankin: Well --

Justice Felix Frankfurter: It's ultimately fair.

Mr. Rankin: Yes, Mr. Justice.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: Yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: Not in that particular phrase.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: Because it says, including all islands within three leagues of the coast.

But if they would want to just say anything beyond the Gulf, they'd have to say 10 feet or mile, three miles.

Some -- something the Gulf would be right where the -- either the coast or the shore would be.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: I think that by the definition, there's a difference between the mean low point where the water touches the land which is the -- is definition of shore and the coast.

Justice Potter Stewart: The answer would depend, Mr. Solicitor General, wouldn't it upon the specific geography of the coastline involved?

If you have a straight coast along the sea, there would be no difference between the shore and the coast, each would be identical but if you had islands and bays and inland waters and so on, then you -- the shore might be a different line from the coast line, isn't that about right?

Mr. Rankin: That's my understanding of it, Mr. Justice.

I --

Justice Potter Stewart: And so, you can't give categorical answer because it would depend upon the geography of a specific area?

Mr. Rankin: I think that the -- the problem is, as you say that it follows as to the shore the sinuosities of the --

Justice Potter Stewart: Right.

Mr. Rankin: -- coastline.

And so that it's difficult to describe -- except as you get down to the line itself.

And we have never contented in our brief or otherwise in this matter that that wouldn't have to be examined.

But the question is, what kind of a measure you put on it?

Three miles or three leagues.

And that when we -- when the Court decides that question, then we will still have the problem as we had in the case of the United States against California when -- after the Court's decision, to determine just where the line would be in regard to bays is another question out there.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: Oh, yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: Well, whatever is within the distance of three leagues from that point of measurement, there's no question of what the Government would recognize that they were entitled to for three miles.

Now, three leagues, as far as the -- including all islands.

Now, there is no question in regard to that.

And that is --

Justice William J. Brennan: Of water space?

Mr. Rankin: No.

This is as to coast.

Justice William J. Brennan: Yes.

Mr. Rankin: The -- the definition says, including all islands within the coast, with three leagues of the coast.

Justice William J. Brennan: What water around (Inaudible)

Mr. Rankin: With -- we say three miles.

Justice William J. Brennan: Three miles.

Mr. Rankin: Yes.

Justice William J. Brennan: And under each of the islands?

Mr. Rankin: Yes.

Now, there are inland waters as between a great many of these islands that we recognize under the proper rules of international law, and they would they get that too under the description of the Submerged Lands Act.

There's no question as far as the Government is concern about that.

But the -- the trouble -- the real bone of contention is whether or not they get to measure up three leagues from the coast guard lines as the way they're taking it but even say they abandoned that or they go three leagues and then three light leagues up from the islands and that's the real problem.

And if you'd see the effect on -- on the development and the exploration, it involved a tremendous sum of course.

Justice William J. Brennan: I gather to this line at one point is beyond the Continental Shelf.

Mr. Rankin: That's right.

No, this is the 100,000 line.

Justice William J. Brennan: I beg your pardon?

Mr. Rankin: I'm not sure whether that present --

Justice William J. Brennan: (Voice Overlap) --

Mr. Rankin: -- to be a Continental Shelf line all along the knot.

But it does -- over on this side, it has -- says 150,000 and the other says made the Continental Shelf.

I couldn't answer as to whether it's supposed to be the Continental Shelf all the way along.

Justice Hugo L. Black: Suppose Congress had just decided that the States would have boundaries after certain (Inaudible) even though it had set the boundary (Inaudible) suppose they decided that (Inaudible)

Mr. Rankin: No, I would not.

Justice Hugo L. Black: On any ground at all, whether you do the same things or equality of the States that has been (Inaudible) any constitutional ground on which they could be if we assume?

Mr. Rankin: No.

We -- the Government concedes in the brief that -- and there's no question about it under the law in my opinion that the United States can prefer one State over another and it has in its history.

Now, the equal footing is a different problem in regard to the State's --

Justice Hugo L. Black: Is that statutory or constitutional (Inaudible)

Mr. Rankin: That's constitutional.

But that's based upon when they entered the Union.

And our -- the United States has preferred one State over the other in many different action so --

Justice Hugo L. Black: (Inaudible)

Mr. Rankin: The United States?

Justice Hugo L. Black: Yes, United States.

Mr. Rankin: Well, I'm not sure about that one.

That's a little different kind of a question whether it could take away from the State without its consent something it already had.

That's covered by the Constitution in other places.

I don't think --

Justice Hugo L. Black: Your argument in the argument of their counsel was raised.

That's just your point and at least a very, very, very great difficulty in determining as a matter of judicial policy where the boundary is.

Suppose, I wanted to give the conclusion that they had not definitely determined them and just as so vague that you couldn't say what they had done, what should be done (Inaudible)

Mr. Rankin: Well, the Congress was pretty certain that they all had boundary, legal boundaries.

Justice Hugo L. Black: Legal boundaries?

Mr. Rankin: Yes.

Justice Hugo L. Black: Of -- of shore or coast or this concept between the coast and the shore and that has been raised (Inaudible)

It's your position, is it, that Congress does have -- that if Congress had deliberately concluded that despite the equal States and despite the general idea of the three-mile boundary that it shall be at a certain place that that (Inaudible)

Mr. Rankin: Well, I -- I think that's a little different question, Mr. Justice Black, when you asked me before in that I thought your other question incorporated extending the boundary.

Now, I think there is quite a difference in trying to shorten the boundary, as far as constitutional power is concern.

I don't think there's any question of what Congress could say that a State could have a boundary that it now has or that it could extend that boundary if the State wanted to.

But I don't think it could just take a slice off of piece of the State without its consent.Does that make clear what I am trying to say? [Laughs]

Justice Hugo L. Black: I think something awkward, don't you think.

Mr. Rankin: Yes.

Justice Hugo L. Black: Where is the boundary?

Mr. Rankin: Well, then you have to go to legal rules about the measurement.

And of course, we have no difficulty with inland States or very little.

We've had a number of law suits in years that -- that we had in our country.

But they have been worked out.

Some of them may have been difficult problems such as, where the boundary was on the ground.

And I think that you have the same problem as to these, not in the case at the moment, but in -- it -- regardless of where do you fix in the three leagues or three miles.

You would still have to figure how you made it in order to get the maritime boundary, where it was measured from.

And I think that the Submerged Lands Act was already provided for that but it has to be put on the ground.

And that would be something that we contemplate would have to have --

Justice John M. Harlan: Your -- your view is, I take it, all we have (Inaudible) is whether some -- all these States get three leagues or three miles?

Mr. Rankin: That's correct.

Justice John M. Harlan: Then -- then, once that's decided, then you say it becomes a surveyor's job in effect to determine what the baseline is and what you measure either one of those distance.

Mr. Rankin: Yes.

Justice John M. Harlan: Is -- is that it?

Mr. Rankin: And that's exactly what was done in U.S. against California.

Justice Hugo L. Black: But it wasn't completed.

Mr. Rankin: It wasn't completed but you will recall your viewpoint -- Mr. Davis as a master --

Justice Hugo L. Black: I don't recall that.

Mr. Rankin: And --

Justice Hugo L. Black: I have considerable difficulty --

Mr. Rankin: Yes.

Justice Hugo L. Black: -- for the efforts you make.

Are you sure that a surveyor without legal rule announced, the Government policy with this in reference to coast and so forth.

Mr. Rankin: Well, I think there's -- some of that involved in Mr. Davis' report.

He came back to the Court and said that he thought certain rules would apply to establish the California boundary in a certain way.

And then the Court would have to decide whether his estimate of the legal principles that would be involved was -- was the law that the Court would accept.

And then, it was his report would've fixed the boundary of California.

If it wasn't and this Court would have to accept the contentions of California or maybe part of them and would say those were the law, and under that, the boundary would be fixed.

Justice Hugo L. Black: Those rules should be announced by Congress, as -- as I gather from you (Inaudible) on what some people would say would be an arbitrary (Inaudible) at this country or whatever (Inaudible) wanted to claim 50 miles out into the sea or 45 or 60.

And if that were done by the country would certainly prevent the binding on the shores or to this except into the policies.

Mr. Rankin: Well, we think that would then be a policy that was properly within the realm for the political branch of the Congress to determine and that it would be binding except if it -- it would encroach upon constitutional rights of the State.

And we assume from -- what you -- that your question doesn't incorporate anything like that.

Justice Hugo L. Black: Well, they have gone far enough has they not ant indicate it that certainly the three-mile limit, which was considered to be a (Inaudible) need not be (Inaudible) in the Gulf hence, their conditions drawing with -- it could be nine months.

Mr. Rankin: They have only gone so far, the Congress, so far as to say that if at the time these States entered the Union, they had legal boundaries that were beyond three miles.

They wish them to have --

Justice Hugo L. Black: Did they use the word “legal boundary”?

Mr. Rankin: No, they're existing.

All through the debates they said it was legal boundary, existing legal boundary.

Justice Hugo L. Black: -- for arguing as I looked at it on the basis of whatever had been the policy and whatever was the law, in some way, some of these States are always ought to have more rights than they have been given out in the Gulf of Mexico.

Mr. Rankin: No --

Justice Hugo L. Black: And as a matter of fact, that has just the connection.

Unknown Speaker: (Inaudible)

Justice Hugo L. Black: Yes.

That -- that they just had -- they were determined as a matter of policy that it would be better for the nation (Inaudible) look into this and see if it had to be readjusted.

Mr. Rankin: Yes, but they were only willing to go so far as to treat all the States the same.

And they said they were willing to give them three miles.

Justice Hugo L. Black: Between all of the States, the same?

Mr. Rankin: Yes.

Justice Hugo L. Black: You mean in the Gulf or all over the country?

Mr. Rankin: All over the country.

They were willing to give them three miles.

Justice Hugo L. Black: Did they say it?

Mr. Rankin: And then in the Gulf, if they already had a boundary that was three leagues, then that would be the measure and they -- they were saying that they we're treating the same because they already have it.

Justice Felix Frankfurter: Although from your point of view, the national boundaries were suggestively two miles.

Mr. Rankin: Well, we think that the -- the history shows that, Mr. Justice.

Justice Felix Frankfurter: But I -- I'm not -- I'm just adding that qualification.

Mr. Rankin: Well, I want to clarify --

Justice Felix Frankfurter: What did you answer?

Although they would get three leagues if that's what they have when they came in, although the national boundary from your point of view in this degree was three miles, is that right?

Mr. Rankin: Yes, except that if we were wrong about the law and Congress did, under the law, recognize for Texas a boundary of three leagues, which we do not think is the law with other fact.

But if that had happened, then we feel that the lawyers that, in fact, our conception of what the foreign policy of the United States was changed to that extent by that action.

Justice Felix Frankfurter: But all the States?

Mr. Rankin: No.

Justice Felix Frankfurter: In other words --

Mr. Rankin: For that one State.

Justice Felix Frankfurter: -- you say the national boundary of this country is three miles and has been time out of mind.

Mr. Rankin: That's right.

Justice Felix Frankfurter: Is that right?

Mr. Rankin: That's right.

Justice Felix Frankfurter: I guess following Justice Black's question, again, if they can establish within the criteria of this Act of 1953, a particular State might have a boundary that's extended beyond the national boundary, that is correct, isn't it, if it can establish it?

Mr. Rankin: Well, but not beyond the national boundary, that's -- that's --

Justice Felix Frankfurter: What you're been -- the national boundary for everybody else is three miles which were x-based including three -- three-league and therefore pro tanto, that's the national boundary of the United States, is that what you're saying?

Mr. Rankin: Yes.

And I think that the --

Justice Felix Frankfurter: I don't understand that.

Mr. Rankin: -- I think that it's --

Justice Felix Frankfurter: (Voice Overlap) satisfaction, I don't know what --

Mr. Rankin: I think it's possible, Mr. Justice, for the United States to say, “We will jug out three leagues at one point, as a foreign policy, if they want to do it.”

Now, I think that would be in conflict with the international law as we view it.

Justice Potter Stewart: Well, except --

Justice Felix Frankfurter: (Voice Overlap) --

Justice Potter Stewart: -- Mr. Solicitor General, that's not the test of this statute, is it?

It's not where the boundaries are today.

Mr. Rankin: No, no.

Justice Potter Stewart: It's the State's boundaries as of the time they became members of the Union or as “heretofore” approved by Congress.

Mr. Rankin: Yes, sir.

Justice Potter Stewart: And that has nothing with what the boundaries are of the States today.

Mr. Rankin: No.

Justice Potter Stewart: It has of that time.

Now, there may well be a three -- three-mile boundary around the continent of United States today, not an inch beyond that and still, they -- on the State's point of view if they could show that their boundary in 1845 or 1868 or whatever the critical date is involved, was a certain amount and that's the measure, the measure to which certain proprietary rights have been relinquished by the Congress, isn't that it?

Mr. Rankin: Well, yes.

But there is --

Justice Potter Stewart: Without records to what that boundary may be today.

Mr. Rankin: There was --

Justice Felix Frankfurter: (Voice Overlap) national boundary was in -- on the critical basis.

Justice Potter Stewart: Exactly.

Mr. Rankin: It's -- it's a little more complicated than that, Mr. Justice, because of this.

Justice Potter Stewart: It's not being addressed.

Justice William J. Brennan: And so we got this yesterday.

[Laughter]

Mr. Rankin: Yes.

Well, I thought we did too.

But in the statute, when Texas was admitted into the Union, Congress would have the power to recognize a boundary of three leagues if it saw fit to do so, we said it didn't.

If it did, that would establish as to Texas a foreign policy of three leagues for that particular area.

Justice John M. Harlan: Including the national boundary?

Mr. Rankin: That's part of our national boundary.

Justice Potter Stewart: As of that particular date.

Mr. Rankin: As of that date.

Justice Potter Stewart: If and only if your -- your construction of the words “at the time of” is the proper one.

Mr. Rankin: That's right.

Justice Potter Stewart: If -- if the State's construction of the words “at the time of” i.e. not after but just prior to becoming a union that it wouldn't have anything whatsoever to do with our national boundary, would it?

Mr. Rankin: Well --

Justice Potter Stewart: Except, of course, in those case of those dates which were territories.

Mr. Rankin: I can say yes to that only if you add -- if you add in the question or add to it proposition that they've cut down “at the time” afterwards.

If it stays the same, certainly, that's part of our boundary, that's three leagues, and that's part of our national policy.

Justice Felix Frankfurter: Now, when you take -- talk about a national boundary, which is you say three-mile, but if Texas in fact has three-league once it came in, and by admission, that was legally recognized by Congress and is your way.

Congress deemed that the -- that the boundary of Texas which is three-league and it brought Texas in on those terms, on three league terms, I will say that this Texas thereby became part of the United States, part of the nations of the United States, that now the national boundary of the United States was three miles for everybody, but for the Texas part, it was three leagues and therefore, the national boundary of the United States, pro tanto, of Texas is three leagues.

Is that what you're saying?

Mr. Rankin: That's what I think of foreign policy would be.

That was true.

Justice Felix Frankfurter: But why do you have to look in to foreign policy?

That's what I want to know.

Mr. Rankin: Mr. Justice, I -- I think that --

Justice John M. Harlan: Now, the point we're right back were a discussion would serve to your favor as -- as to what should be.

Mr. Rankin: [Laughter]

I'm sorry.

Justice Felix Frankfurter: It may not be your fault.

Unknown Speaker: That's your fault.

[Laughter]

Justice John M. Harlan: Pardon me.

Namely, what are the criteria of this statute, the legal criteria under the statute (Inaudible) the meaning in the word “boundary”, historic boundary, that's what we're talking about.

Mr. Rankin: Yes.

Justice John M. Harlan: Where we get it, you argue (Inaudible)

Mr. Rankin: Well, I -- I think that's true, and I think that all the recent questions are hypothetical.

Justice John M. Harlan: But the consequence of your argument purports to (Inaudible) that the boundary of Texas if it was established according to your criteria (Inaudible) the international boundary of United States (Inaudible)

Justice Felix Frankfurter: It doesn't have to be because United States may not protect, United States may not (Inaudible) of the other nation care to protect that part of it if it chose not to.

And the notion -- that's -- that's my difficulty that you think it's a mathematical composition that the national boundary with reference to the -- when you discuss states boundary, you discuss the national boundary.

Justice William O. Douglas: I thought your --

Justice Felix Frankfurter: If it pleases you, if it pleases you or anybody else to say that means the particular State is part of the United States, therefore, that's a part of United States, that's all right.

I get no -- I get no help to -- for this problem out of that.

Mr. Rankin: Well Mr. --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Rankin: -- Mr. Justice Frankfurter, let me take my own statement in Nebraska.

That's not a maritime state.

I will see if can illustrate it.

Nebraska has certain boundaries that I think we wouldn't have much trouble of recognizing at least on maps.

And if the United States would refuse to defend those boundaries against some foreign attack, I think that they would violate the Constitution of United States because it agrees to defend as a part of the Constitution.

Now, if we would say in the annexation statute admitting Texas into the Union that it had a boundary for civil and political boundary, as it is described in the statutes, of three leagues, that would be part of Texas territory.

And that's the way all of the courts have discussed it.

So they would be entitled to call upon the United States to defend this territory as a part of -- just like along Rio Grande.

Justice Felix Frankfurter: But defend doesn't mean you have to go to war, defend may simply means writing a protesting note.

Mr. Rankin: Well, of course, you do -- you go as far as you need diplomatically to try to protect you.

Justice John M. Harlan: The point is wether you want to (Inaudible) what the area was that is being claimed by the United States (Inaudible)

Mr. Rankin: Yes.

But I -- what I was trying to say that if we did recognize that was part of the territory of Texas and part -- and it came in the Union that way, I don't see how we could say after that, “Well, that -- really it isn't Texas, we won't defend it anymore than any other area of Texas.”

Justice Felix Frankfurter: Let me put to you my difficulty --

Mr. Rankin: Yes.

Justice Felix Frankfurter: -- with your position.

You are so preoccupied with determined to your satisfaction with all the weight of the evidence that you pursue that the national policy of the United States was three miles that you regard that almost that was necessary infusion into for the existing boundary, in the 1948, for Texas.

Mr. Rankin: Well, I don't think I do --

Justice Felix Frankfurter: It derives you -- you're almost -- you don't say it as a matter of law, it become might be close to saying that the national policy of the three-mile belt is so powerful and so important that it almost makes impossible giving proper heed to what the special facts pertaining to Texas.

Mr. Rankin: All I mean --

Justice William O. Douglas: I think that your -- your position of the boundaries, something rather simple and that is that we annexed Texas and Texas did not annex us if it was -- turning it into a -- into a national system of a three-mile wide.

Mr. Rankin: That's right.

Justice William O. Douglas: I mean, that's really your starting point.

Mr. Rankin: Yes.

Justice Felix Frankfurter: Does anybody disagree with that?

Mr. Rankin: Well --

Justice Felix Frankfurter: Except in -- except on boundary that annexed United States?

Mr. Rankin: But I -- Mr. Justice Frankfurter, I don't think that there is that much difference between this, and I'm thinking about this, I think that we have to conceive this as territory, and I haven't gotten that across.

I mean, I'm trying to explain it to you, I believe, because all of the courts and the writers treated this territory.

And to the idea that because it's out in the sea that it is not territory just doesn't fit in with the law, that's been applied.

Now, all I can do is try to stand before you and tell you what the authorities had been.

And if other courts have regarded this as territory, and this Court has, in the past, a maritime boundary as part of the territory, then it seems to me we have to take the legal instance that proceed from that and deal with them accordingly.

And I say here, that if Texas proves that it did in fact, under all of the legal test have those rights, then it's entitled to it.

Justice Felix Frankfurter: It may not clear and as to never, you've very kind about.

All I'm saying is, in connection with -- and as you've just stated your proposition, I don't think there's any (Inaudible)

And I find myself not at being what you said.

But you -- but (Inaudible) me, wasn't it?

What I could from your argument is that you are so the -- the national three-mile policy is so imperative in your thinking but you revolve the conflict to a deference, that Governor Daniel stated as the policy if the system.

The usual and normal procedure upon the admission of a State to which Mr. Justice Black in his (Inaudible) statement, namely, that the circumstances or the prospects of the attitude of Congress supposing what was said and not said in regarding the boundaries of a State, the manner in which the boundary of a State are determined when a State comes in.

And that for me is very blatant if I didn't know about this until I was told.

If normally a State defined its boundary, if normally a State presents it's application if it were for admission, if it sets forth the terms of admission, then it's nothing you said about it presumably go extend, or accepted by the Congress.

Mr. Rankin: Why -- I have no difficulty with that.

But I tried to point out how it didn't get very clear that in this situation, and I said there were 30 pages in our brief of, not my talk, but the Congressmen's talk, that they just won't accept this business for Texas.

Justice Felix Frankfurter: I understand that part of your argument.

But the emphasis of your argument for me has been that although -- that -- that the overwriting and almost overwriting factor is that you extended it into a large -- becoming on more than three miles would be a denial of deep-rooted national policy.

Isn't that a fair statement of your position?

Mr. Rankin: Well, I think it's not quite accurate, Mr. Justice --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Rankin: -- and I'd like to -- to say that I think that my statement to you that if the Congress, in admitting Texas into the Union, had in fact recognized three leagues that that would have created an exception to the -- to the foreign policy that I thought was the fact in our State Department's claim for 150 years as the fact of three miles and no further.

But that was quite a difference between just saying it's three miles and just forget about anything else.

It is, to me, the law.

And if you would find that in that Admission Act, they had in fact recognized anything like that, then I felt that they would be having their boundary but I don't think there is anything like that.

In fact, I think it's all the way contrary.

Justice John M. Harlan: Put it -- put it in another way, what you are saying is that in view of the national policy, which I presume for a moment, it was three miles, where an Act of Admission says nothing at the very least you have to take a good hard look to see whether or not the boundaries in which -- in which the State was accepted, proceeded what you regard as provisional policy, is that your position?

Mr. Rankin: Well, I certainly agree with that.

Justice Felix Frankfurter: Yes, if you go beyond that, if you go beyond that, you almost want an affirmative insertion in the Act of Admission that they did grant them to be, almost.

Mr. Rankin: Well, the reason I do that, Mr. Justice, I maybe wrong but let me try to --

Justice Felix Frankfurter: If that's true, isn't that the (Inaudible) of your argument?

Mr. Rankin: Yes, because of this factor.

Here, the United States is talking to all the other -- many of the other nations of the world through its State Department.

It's only the way it has, as I know this Court is well aware.

And it properly has a function of communicating back and forth about these various problems.

And one of them is the boundaries of the United States and the various States, where they're part of the United States, on its maritime boundary.

In those discussions, it has said time after time that our boundary -- maritime boundary is three miles.

Now, that, to me, is important because how can we ever hope to have any kind of a foreign policy if we have a foreign policy for all the other countries of the world and we breach it for ourselves.

That's what I'm talking about.

And I think that --

Justice John M. Harlan: But -- but surely, you have got to recognize that what is stated here in terms of rights that were given by this Act by the United States' own position do not contravene the three-mile doctrine of the national law.

And therefore, what you're arguing here, it seems to me, is that if the Congress had given directly that the reason is best known to itself will not do inform, namely to give extraterritorial rights to three leagues, you would be the first to say that that doesn't violate any historic policy of the United States.

Mr. Rankin: Absolutely I agree with that.

Justice John M. Harlan: And yet when you come to measure what you -- when you come to measure or as I keep coming back to it all the time, define the term “boundary”.

You are superimposing on the term “boundary”, a definition which includes this ironclad policy of international law which, by its own course, almost vitiates the grant which Congress, you say, if it is done directly wouldn't have had the right to make the (Inaudible).

Mr. Rankin: Well, except for this factor that they -- they did take into account that if in the admission of Texas and in the admission of Florida into the United States, the Congress had in fact approved that boundary that then they would have -- they would receive this benefit under the statute.

That was what they discussed was what they were doing.

Now, it seems to me that is the exception.

Otherwise, I don't think there's anything you can find in the debates that the Congress as a whole ever conceived that boundary would give any of these States in the Gulf anything more than the three miles.

Justice John M. Harlan: Well, that may be true but it's also true that you cannot find any definition of boundary in the Act if in terms of that your view that it was therefore (Inaudible) is to take the whole picture and look at it and try to see what that definition is that is most consummate (Inaudible)

Mr. Rankin: Intent of Congress.

Justice John M. Harlan: -- trying to achieve.

Mr. Rankin: That's right.

Justice John M. Harlan: But that is the whole problem.

Mr. Rankin: That's right.

Justice Hugo L. Black: Mr. Rankin, with reference to Louisiana, which is before us, let's assume that your argument that you're heretofore making with reference to neutralization of -- of (Inaudible)

May I ask, why don't you try to reach the three-mile limit, that's the judgment, let's assume.

Let's assume that -- that's some kind of fact here and we don't know exactly yet what kind it would be, that's enough to cause Texas to be recognized and (Inaudible) receive a grant.

Now, when we come to Louisiana, when did again that you said several times that thing here that have to be considered.

I presume that include this kind of a burden, although I don't like to argue it, I'm trying to get out of the assumption with the burden.

But somebody has to do something, something has to be shown, some kind of evidence.

Let's assume that was enough but before the Texas came, the Republic of Texas at this boundary.

Now, we had Louisiana.

What do you say on the policy of the law, the policy of Congress expressed by the law (Inaudible) which would justify denying to Louisiana the same right as to be held to be acquainted in Texas view the fact that they did treat for a long time the idea of three-league even though not in language (Inaudible), if it talk about three leagues, three leagues that the map was on three leagues out from something of what -- why should Louisiana not be entitled to the same privilege that Texas -- that Texas isn't entitled and now, we're on Louisiana.

Mr. Rankin: That's one of your problems in this case, if you would --

Justice Hugo L. Black: What are the criteria?

Mr. Rankin: If you're satisfied in examination of the authorities and the debates and the law itself that mere claims are enough, then you got claims by all --

Justice Hugo L. Black: Why should they -- why should they not be entitled?

Mr. Rankin: Because Congress said otherwise.

Justice Hugo L. Black: But did it say otherwise?

Mr. Rankin: Well, they did in the debates and the best history I know and I've given to you.

Justice Hugo L. Black: How could -- how could -- I read that notion, how could you determine what a state boundary would, except by the custom, condition in their claim that if possible, the language when they came in, I'll just read again, the language in the statute as to Louisiana.

Mr. Rankin: Well, you meant --

Justice Hugo L. Black: You said it does refer to islands within three leagues.

Mr. Rankin: It never has --

Justice Hugo L. Black: You say that while others give them the island, it wouldn't -- that the -- I -- I don't quite understand why if they got the island and Texas were -- held that Texas had the right because it had claimed after it, everybody knew it (Inaudible) why would Louisiana -- why should she be denied the same logic or whatever it is or policy of consideration or policy of Congress to conclude that the national interest require that this primers be heard and listened to and action be taken by the political agent.

Mr. Rankin: Well, if you're going to base it just on claims, whether they are valid, legal or not, well then there are plenty claims for all.

Justice Hugo L. Black: All through the years?

Mr. Rankin: Well, different times and they're -- but they are not legal.

They aren't anything that you would act upon.

Justice Hugo L. Black: That's -- that's admissible as evidence, is it not?

Or is it --

Mr. Rankin: Oh, I don't think --

Justice Hugo L. Black: If it's a judicial question to be determined, what do we have unless -- unless we require an expert, would you say?

My question is not asked on the basis that I -- For you against, but if there is evidence that the Court must hear or have to hear in order to take a judicial determination to determine what is legal when nobody gets that out whether it'd be -- either in an act of Congress or by them.

Why not the claims of the States through the years before they were admitted and at the time for it and even after it, why was those not become pieces of evidence to be considered?

Mr. Rankin: Well, to my mind, when Louisiana says they have three miles -- three leagues out from the mouth of River Sabine under the evidence of the language that I have described to you, that really doesn't satisfy my mind that there's any illegal claim whatsoever.

Now --

Justice Hugo L. Black: In a legal thing.

Mr. Rankin: Well, they're talking about legal boundaries, we think, in this Act.

Now --

Justice Hugo L. Black: I -- I gather that maybe I'm wrong about it.

I have considerable to do with the other cases but I gather that Congress had an idea, when it attached with it, maybe the strict letter of the law wasn't a thing to stand on that there was certain history from it and that Congress would take a new look at it then they -- put -- when you look at it and turn over some, I do not know how much, to us but can you just face it all on their premise that Congress was interested in nothing but the -- the unclear letter of the law as to what was the boundary.

Mr. Rankin: Well, I don't want to take the time of the Court to read to you the debates.

But I'm confident you will review, and I think that the -- that you cannot help but come to the conclusion in those debates that Congress was never trying to dispose of this property in accordance with claims.

It was trying to dispose of it in accordance with what the law was.

And that --

Justice Charles E. Whittaker: But they were writing the law -- they were writing the law at those times.

Mr. Rankin: But they were not writing it as to what the boundaries were at the prior time.

Justice Charles E. Whittaker: No.

But they make the grant which Section 2 convey to the kind of bond, boundaries as they existed at the time the States with the pleasure to be used or as such was used by them.

Now, if that means just after (Inaudible) then your argument of the historic three-mile limit has force.

But if it means as the State declares that just before the State became a member of the Union, then just -- was -- was it not, and offer to -- a conveyance to the State to the extent that they could prove their historic boundaries extended seaward and not exceeding over three leagues, and at the same time, a congressional approval of a new seaward boundary for the country.

Mr. Rankin: Well, if you would take -- if you assume that, then how do you deal with the language that was said time after time of what they were dealing with, with the existing boundaries of the States, the legal boundaries of the States, the boundaries they have for 150 years?

They couldn't have boundaries that just before that were one way and boundaries that were different at the moment after and still be 150-year-old boundaries, how could they?

That's the kind of language they use in saying what they meant.

And that's what we've always used in this Court as to what the Congress means.

And time after time, they said that.

Justice John M. Harlan: May I ask you a question which is somewhat ought to be, at least for my own enlightenment.

I'm sure that I understand the Government's position correctly.

You do not contest, as you concede, that as far as Texas is concern, it made a claim, I'm talking about claim just as I claim (Inaudible) they claim to a three-league boundary at the time of its admission to the Union.

Mr. Rankin: Yes, we recognize that in the statute.

Justice John M. Harlan: And you concede also that Florida at the time of which readmission into the Union made such a claim but deny it as a claim that was theretofore made, is that right?

Mr. Rankin: We don't say readmission.

We --

Justice John M. Harlan: Well --

Mr. Rankin: -- say that we representation (Inaudible).

Justice John M. Harlan: But I mean, at that time you --

Mr. Rankin: Yes.

Justice John M. Harlan: -- concede such a claim was made, you deny the existence of such a claim or -- for having been made prior to that time --

Mr. Rankin: That's right.

Justice John M. Harlan: -- in the case of Florida.

And in the case of Louisiana, Mississippi and Alabama, you deny that any such claim was ever made.

Mr. Rankin: Any claim that would satisfy anybody.

Justice John M. Harlan: I understand.

In other words, you say the -- including all islands' business which is the predicate of it --

Mr. Rankin: Doesn't --

Justice John M. Harlan: -- on its face is not a -- assertion.

It's not an assertion on its face.

It's not an assertion of the three-league claim.

Mr. Rankin: That's right.

Justice Hugo L. Black: Why do you say that?

Mr. Rankin: Because it just didn't interpret it that way and hasn't been in anything we've been able to find.

Justice Hugo L. Black: I suppose it hasn't been.

It hasn't been interpreted the other way.

Mr. Rankin: Yes.

We got the islands and as I said in the Treaty of Paris, 20 leagues up from our coast in the session from Britain at the end of the Revolutionary War.

And we have always construed that is just the ounce never is giving us a maritime build out that far.

And that's been treated that way all along.

The Bering Sea, we never claimed that sea.

We only claimed the land and the islands.

It's been the uniform way of treating in such language.

Now, just -- now, they -- there is a further fact that in Section 4, you know, where it says nothing shall prejudice, it deals with statute or constitution.

And if you are going to look at this language of the debates, you'll find there that they talked about the fact that Florida has to prove that their constitution, not all the other claims nor any other involved, just their constitution was approved in 1868 when they were admitted to representation in the Congress.

That's what they have to prove in order to get any three leagues.

That's what they told these people when they got this bill passed.

And was -- that Texas has to prove that she made the claim beforehand by her statute, and that the Congress of the United States in 1845 approved it.

Now, they told Congress that unless they proved those things, they wouldn't get it.

And I think they should be held to it for the interest of the rest of the country.

Justice Hugo L. Black: So there's anything to be said that I don't (Inaudible) you could take out any isolated statement.

Mr. Rankin: Well, I don't mean to do that.

Justice Hugo L. Black: They did indicated, the bill that is indicated -- it wouldn't satisfy the law as we had written it in the California case.

It is not on constitutional ground but we had written this law in a certain way.

This bill indicates that so far as the application of (Inaudible) the Gulf, there was still that fraction of the Gulf.

Mr. Rankin: Well --

Justice Hugo L. Black: But they did desire to change it.

Mr. Rankin: As to --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Rankin: -- the whole country, not just as to the Gulf.

You see they could --

Justice Hugo L. Black: I understood you to say to begin here or -- or was that wrong?

Because they -- this indicate the purpose of (Inaudible) Gulf differently.

Mr. Rankin: Well, yes, in that they were giving them a chance to prove three leagues, but they changed it.If you see the Court said, they didn't have a footnote.

And they said that the whole maritime States had three miles.

They -- they confirmed that.

If they extended their boundaries, they've validated their getting three miles.

Then they --

Justice Hugo L. Black: What they've indicated here is that there's somebody maybe entitled the nine miles out, all of it.

And of course, in order to make a judicial question, it would have to give some criteria but what have they given?

Mr. Rankin: They have given you legal boundaries.

Justice Hugo L. Black: Did they use the word “legal boundaries”?

Mr. Rankin: They said existing which has got to mean legal.

How can a State have anything but any other kind of a boundary?

Justice Hugo L. Black: Well, I presume the Republic of Texas had -- had that boundary.

Maybe it wasn't a big enough republic say that in particular.

But maybe it wasn't a big enough republic to maintain its assertion but it -- it had the assertion in the claim and if it has the power to maintain it, I guess that would be its boundary.

Mr. Rankin: Well, I wouldn't think so because of this.

Justice Hugo L. Black: The Republic of Texas?

Mr. Rankin: No.

Because of this, it wasn't maintained for more than nine years.

That isn't enough in international law.

Justice Hugo L. Black: Well, but international law doesn't govern a nation unless it wants to be governed by so-called international law and if it wants to be govern by that.

Mr. Rankin: Well, but the maritime boundary doesn't only affect that particular nation, it affects the whole world.

Justice Hugo L. Black: But we do not yet have any dreams of that (Inaudible)

We do not yet have any international law that is binding on all of the nations which can be enforced like the law of -- of the United States.

And if the Republic of Texas asserts a formula to maintain or the Republic of Mexico or the -- any other countries, long enough to maintain a certain claim but what -- how would they support if they do not run the policy of the nation as to upset that boundary line which they asserted it was there.

Mr. Rankin: Well, if the -- if the -- if we move it from Texas to another sea, the Russia claimed 12 miles, the United States said it would recognize only three miles, did Russia had 12 miles?

We made them go down to three.

Justice Hugo L. Black: I presume perhaps it finally matters as every government has that -- which it asserts it then and can protect by force --

Mr. Rankin: That's the law.

Justice Hugo L. Black: -- but is the real law?

Mr. Rankin: But it didn't do it and it couldn't against the United States.

Justice Hugo L. Black: Well, that's -- that's a different thing.

Mr. Rankin: Well, that part of the --

Justice Hugo L. Black: But -- well, they could maintain it by them.

Mr. Rankin: But the question of whether it could is something that you have to look the history about but the fact that they didn't is -- is the history.

And then I've -- we've got to demonstrate here and I called your attention to it.

Justice Hugo L. Black: I'm expressing myself with reference to that policy several times.

I don't think that [Laughs] it's quite as different between our ideas and good policy.

Here, we have this statute.

Mr. Rankin: Well, but I'm -- I'm trying to say, Mr. Justice, that the international law is which this Court said it would follow that they not only have to claim that boundary, this maritime boundary, but they have to occupy and take possession and prove it for a long enough period of time that it is recognized in the international law.

Now, you said, this very court, in Oklahoma against Texas, the 24 years was a very short time to be claiming a particular boundary to establish it as a matter of right.

You didn't pass on the question.

I don't want to get a misunderstanding but you did comment that that was a very short time.

And the courts -- there is no -- there are no decisions that we've been able to find at all for such a short time even where they occupied and -- and held the area that it would satisfy international law.

So, I say as a matter of international law, the Republic of Texas did not have, by its statute, a boundary of three leagues.

Now, at the same time, the United States of America was --

Justice Potter Stewart: Well, even by that reasoning the Republic of Texas didn't have any boundaries at all.

It was only in existence for nine years, and you say that's not long enough to be in anybody.

Mr. Rankin: Well, I would -- I would recognize, I think, that their -- we have to -- under international law that certain places, they -- they were occupied.

And there wasn't any question about it.

Then, the Court might want to consider whether they did but in any event, if it becomes crucial about the time 1845 when they came into the Union.

But the -- the nine years period does nothing in international law to sustain such a short period as being sufficient to establish.

And the reason for that is dealt with and the authorities refer -- refer to where the courts have reasoned this out.

They say, “After all, our country doesn't look at all the statutes of another nation all the time and try to find out now with Russia.

I want to know why we happen to make that protest, and I examined the time and the history of it and found that Russia came to us and said, we're having issue with this Ukase.

We want your ships to obey it.

Will you please tell your people to obey this Ukase?”

And we proceeded at once to protest against it.

But you -- under international law, nations are busy, and they can't be expected to know every kind of statute that some country passes.

So, you've got to bring it to their attention.

After you bring it to their attention, you've got to occupy it and say “Now, if you -- you can't come in here.”

That's the other element.

And the only cases that we've pointed out to you are several law in one we can find that the -- roughly around 50 years and I think one, some 35 years that there was any -- and -- and there was real occupancy.

They had been occupying that area.

So, we don't think that that claim had any standing in international law.

But it does have to be considered as to what was intended by Congress when it was said that if they proved that and that the Congress approved that statute at the time it entered the Union, then that was what they would mean by this law as being legal boundary.

And we think that would establish a legal boundary.

And they said, legal existing boundaries what they're talking about and that was enough when they represented that if they didn't do that, they wouldn't get it, I think that should be the terms upon which it should be decided.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: Well, is -- is your problem with regard to the coast guard line or coast and shore?

Justice Charles E. Whittaker: No.

As to the question, I can't find that where the descriptions under this Louisiana (Inaudible) say including the Gulf of Mexico.

The forgers advised that Government including all islands, included in three leagues.

What does that mean?

That the scope or we -- we have to fix with this, are we just to use that (Inaudible) with the shore?

Does it have to (Inaudible) with the coast?

I just don't know -- I think you mean we have -- if we accept your view that it does not include a seaward boundary extending seaward of all (Inaudible) then have to examine where to begin to decide what islands are existing.

Mr. Rankin: Well, that is really simplified by the fact that we don't have any issue about the islands being within the three leagues so we aren't really contending about those islands.

You don't have to really worry about it as a matter of fact.

But that may not answer your legal question as to the problem.

And we do have the problem in this regard that as to Louisiana, when it was admitted into the Union, the United States did refer to including all islands within the three leagues of the coast.

And when it admitted Louisiana or Mississippi and Alabama, it said, all -- including all islands within six leagues of the shore so as to make it easy for us.

So, we -- I'll try to discuss it a little bit more in those two States.

Justice Hugo L. Black: Senator Holland.

Argument of Spessard L. Holland

Mr. Spessard L. Holland: Mr. Justice Black, I so suggest to the Court.

Justice William O. Douglas: Do you have a separate brief or just a joint brief?

Mr. Spessard L. Holland: Sorry?

Justice William O. Douglas: Do you have a separate brief?

Mr. Spessard L. Holland: Yes, sir.

Yes, sir, the white one, Your Honor.

Justice William O. Douglas: White one?

Mr. Spessard L. Holland: Yes.

Yes, it's on the brief of the State of Mississippi in our position to motion for judgment of amended complaint.

Justice William O. Douglas: Thank you.

Mr. Spessard L. Holland: At the very beginning, although my remarks, of course, shall go strictly to State of Mississippi, I would like to call to the Court's attention to a matter with reference to the State of Texas.

It was brought up here in discussion by the Solicitor General with reference to the Trist instruction.

The best evidence, of course, is his instruction of his -- what his instructions were well, what he did.

And the resulting treaty did not begin at the mouth of the Rio Grande but began three leagues from land and read as follows citing the Court to page 102 of the Texas brief, “The boundary line between the two Republic shall commence in the Gulf of Mexico three leagues from land opposite the Rio Grande.”

This treaty, of course, is the supreme law of the land now, and it shows that there is a national boundary of three leagues in the Gulf.

And if the Court will look at the State Department's own maps, which are reproduced on page 111 of Texas brief, this is called or referred to an international boundary by our own State Department.

Justice Hugo L. Black: Page what?

Mr. Spessard L. Holland: Page 111.

Justice Hugo L. Black: 111.

Mr. Spessard L. Holland: 111.

If the Court please, in the brief time that I have here, I want to try to specifically state the position of Mississippi in the 15 minutes time that I have here, and that which I left undone, my assistant who follows me, with 30 minutes, will try to be more clear on -- than I am.

Justice Hugo L. Black: May I ask you one question?

Mr. Spessard L. Holland: Yes, sir.

Justice Hugo L. Black: Is it your judgment that the rights of Mississippi in the United Stated (Inaudible) will determined on judicial (Inaudible) or the effect from the (Inaudible) is that we think Mississippi could offer some other way rather than by taking judicial (Inaudible)

Do you think the result depends on -- over evidence?

Mr. Spessard L. Holland: No, sir.

Frankly, I think the law is clear.

I think the Act of Admission of Mississippi is so clear and in -- the Submerged Lands Act is so clear.

And it doesn't necessitate in the Court.

And if it does --

Justice Hugo L. Black: I suppose someone disagreed with you in the proceeding clarity of the bill, and would you still have the same position that evidence would not (Inaudible)

Mr. Spessard L. Holland: Well, of course, if the Court calls for evidence, we would certainly --

Justice Hugo L. Black: I understood if the Court goes with you, do you think Mississippi needs to offer any other?

Mr. Spessard L. Holland: No, sir.

I think it so plain that it really is not necessary.

Justice Hugo L. Black: Do you have any that you want to own?

Mr. Spessard L. Holland: We will if the Court decides that we are so wrong in our taking if this is plain, we will settle, yes, sir.

Justice Hugo L. Black: What type of evidence?

Mr. Spessard L. Holland: Sir?

Justice Hugo L. Black: What type of evidence?

Mr. Spessard L. Holland: As to our boundary?

The coastline?

Justice Felix Frankfurter: Other than document?

Mr. Spessard L. Holland: Sir?

Justice Felix Frankfurter: Other than document?

Mr. Spessard L. Holland: Well, it probably could be confined to that, yes, sir.

I think --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Spessard L. Holland: -- the Act of Congress itself takes care of it, sir.

We stand foursquare on the provisions of the Constitution of the United States which grants to the Congress the exclusive right or power to dispose of territory and other property belonging to the United States.

And then, Article IV, Clause 2 of the Constitution of the United States which says that Acts enacted pursuant thereto are the supreme law of the land.

We submit that the issues presented by this litigation are clearcut, plain, unambiguous.

Certainly, it solely a domestic issue controlled entirely by the Constitution and laws of the United States, and all they're talking about foreign policy and international law has no bearing whatsoever on the issues presented to this Court in this case.

We stand squarely on the sole authority of Congress to authorize formation of a State to determine the territory that shall compose such State and by setting forth its boundaries and the exclusive right and power of Congress to see to any State title to possession, control and use of any territory or property that might belong to the United States.

Taking our stand on that position, we go to the Enabling Act of Congress in 1817 when Mississippi -- when you had the Mississippi territory and when it authorized the people of what constituted that part of Mississippi territory.

To form a State, Congress at that time clearly and unequivocally set forth what should constitute that State once they had written a constitution and decided to form a state and give it a name.

I certainly will not bother the Court with the over whole description of what shall constitutes State of Mississippi but going to that part which we are so directly concerned with here, “Thence due south to the Gulf of Mexico, thence westwardly, including all islands within six leagues of the shore to the most eastern junction of Pearl River with Lake Borgne, thence up said river to the 31st degree if north latitude, thence west along said degree of latitude to the Mississippi River and then north back to the point of beginning”.

That is the southern boundary line of the State of Mississippi as described in the Act -- Enabling Act, which was so well pointed out yesterday by Governor Daniel following the process of how a State might be bought.

And there, they set out specifically what should constitute the State of Mississippi.

And in the use of six leagues, that was not pulled out of -- in the Act.

The use of six leagues first appeared going way back to the time of George III of England when he divided the territory which then constituted Florida in the East and West Florida.

And I would like to point out to the Court here that that part of Alabama and Mississippi now, of course was at that time part of the East and West Florida.

West Florida came about a third of the way up into what now constitutes the State of Mississippi.

That was the first time we have any record of the term six leagues being used when it was ceded to the United States.

And then the Congress when it's -- when it authorized the formation of these States certainly didn't reach up in full six leagues out of thin air.

They were using a description that was used at the time when it became a part of the United States of America.

And we're authorizing the formation of two States, State of Mississippi first and then the State of Alabama and incorporating in that description the same identical description that the United States of America had when it acquired those lands.

And as this Court has so often held that certainly Congress can dispose of any lands that it had to any State that it wants to.

It could be a one State, one league and another 10 leagues.

If it owned it, then I don't know of anything it was set -- set such a conveyance aside.

Justice Hugo L. Black: Suppose it (Inaudible) Congress was exercising their power (Inaudible) would say that is to be that you have the statements in the Court and not set forth (Inaudible)

Mr. Spessard L. Holland: Well, you mean -- sir, I -- I don't get you on this question.

Justice Hugo L. Black: Another question is, suppose (Inaudible) exercising its undoubted power (Inaudible) sets forth those sufficient criteria to govern the Court's legal determination, what would you say then?

Mr. Spessard L. Holland: I don't know, if the Court please.

Justice Hugo L. Black: You claim there is sufficient here.

Mr. Spessard L. Holland: Yes.

Of course, I don't know if I can answer that question.

I'm not trying to be facetious but I believe the advice on the Court and the Congress faced it to me like that, I'd say that's your job and not ours, go back and say what you want us to give to.

Justice William O. Douglas: I suppose there's no question of what the -- this -- this Court from the very beginning has been sitting on boundary questions.

Boundary questions of any States are -- are reports of the bill of boundary decisions.

Mr. Spessard L. Holland: Yes, sir.

Yes, sir.

I understand that.

Justice William O. Douglas: Do you think they -- this case falls within that category?

Mr. Spessard L. Holland: I think the boundary in the case of the State of Mississippi clearly define, Your Honor.

And I think the Submerged Lands Act doesn't beg of any mysterious argument or any baffling definition of what boundary meant or what coastline meant because the Congress in the enactment of the Submerged Lands Act specifically said what they meant from the (Inaudible).

Therefore, it doesn't beg of any.

Justice John M. Harlan: Where do you find that?

Mr. Spessard L. Holland: Sir?

In the Submerged Lands Act when it sets out what boundary shall be.

Navigable -- what -- what navigable water shall mean, such in be there what the term “boundaries” mean.

They -- they are plain.

It's -- it's a wonderfully drafted bill in clear and unmistakable language, as I see it, as to what the Congress meant by the enactment of the Submerged Lands Act.

And I would like to point out to the Court that in the description of the State of Mississippi as set out in the Enabling Act in 1817, that if the same identical description that we have followed in our successive constitution.

It was set out verbatim in the Constitution of 1817 that admitted us into the Union.

It was referred to in the Constitution of 1832 and in 1869.

When we were permitted to come back into the Union, we again picked it up and readopted it and it is now set forth in full in our present constitution of 1819.

I'd like to also point out that in this reference to six leagues, the Congress, in authorizing the formation of the State of Mississippi when they use six leagues by virtue of it having been six leagues when the U.S. Government acquired it, they could've said three and a half or four leagues and included this very change of others that we're talking about here right now.

Justice Potter Stewart: Is your point that there are no islands beyond four leagues?

Mr. Spessard L. Holland: No, sir.

Justice Potter Stewart: So, there is no point in saying --

Mr. Spessard L. Holland: (Voice Overlap) before (Inaudible)

Justice Potter Stewart: That's not before.

Mr. Spessard L. Holland: -- which is only about 10 miles, sir, from the land which having about ten and a half from the seaward side.

So, as they said four leagues, it would've incorporated those islands.

Justice Potter Stewart: Is all of the present State of Mississippi, was that all West Florida?

Mr. Spessard L. Holland: The lower part here was --

Justice Potter Stewart: Any other --

Mr. Spessard L. Holland: -- rather, it's a long -- here, somewhere in the -- the West Florida is incorporated all that the gulf coast (Inaudible)

Justice Potter Stewart: All the gulf coast of Mississippi and --

Mr. Spessard L. Holland: Of Alabama and Mississippi on over through the Mississippi River.

Justice Potter Stewart: None of it was in the Louisiana purchase of, what is today, Mississippi?

Mr. Spessard L. Holland: Not --

Justice Potter Stewart: That's what we thought.

Mr. Spessard L. Holland: I failed to see anything confusing about the description of the State of Mississippi as the Solicitor wants to confine us to -- to just those islands there and say that that's all we've got, nothing between.

It seems to me like -- let me put a country lawyers view on it, that when the United States Government said, “We had all islands within six leagues, six leagues that they had acquired,” that seems to me like -- just like conveying a piece of property 200 feet long, 100 feet wide including all buildings and other things located thereon certainly, the purchaser is not restricted to what might be located within the lands that are conveyed to him.

He just makes the description.

Justice Charles E. Whittaker: (Inaudible)

Mr. Spessard L. Holland: Sir?

Justice Charles E. Whittaker: (Inaudible)

Mr. Spessard L. Holland: Because that is the (Inaudible) in here that referred to as Mississippi South inland waters.

It doesn't conceive that.

Justice Charles E. Whittaker: (Inaudible) and that landward is in the water or do you claim that (Inaudible)

Mr. Spessard L. Holland: No.

Justice Charles E. Whittaker: I beg your pardon?

Mr. Spessard L. Holland: No.

Justice Charles E. Whittaker: (Voice Overlap) --

Mr. Spessard L. Holland: We claim it under the -- we claim it under the right, under the very description that -- that describes the State of Mississippi when it was authorized to form a State, it's also inland water actually at Mississippi's sound and not Gulf of Mexico.

Of course, it joins up with it and the inland waters do not meet the open sea and as you get on further south of these islands.

Justice Charles E. Whittaker: That's why (Inaudible) and they are inland shoreward of the islands and therefore inland waters (Inaudible) including all islands.

Mr. Spessard L. Holland: Well, of course, the -- the original act, sir, brought it down to -- to where the land meets the water.

Justice Charles E. Whittaker: I construe it to be between the gulfs.

Mr. Spessard L. Holland: Yes, sir.

That was (Inaudible)

That's what they referred to is the -- but I submit that that land in between the islands and the land of State of Mississippi, that -- that is part of the State of Mississippi.

It's inland waters, it's Mississippi South.

The Government concedes that, that our coast line is the seaward side of (Inaudible)

They concede that in their brief.

Justice Charles E. Whittaker: (Inaudible)

Mr. Spessard L. Holland: Yes, sir.

That -- that is our coastline, the seaward side of those islands.

Yes, sir.

They concede that, sir.

Therefore, I would point out to the Court in the very few minutes that I have left here that although Mississippi was not departed to the California and Texas cases, the Court held that the States own -- own it to the coast but further held that only the Congress could dispose of submerged lands.

And I don't think it would be disputed or argued that the Submerged Lands Act was the result of the decision of this Honorable Court in the California and Texas cases.

That's all it brought it in to be.

Now, I would like to call the Court's specific attention to the fact that the only time the word “leagues” are used in the Submerged Lands Act is when in dealing with the States bordering on the Gulf of Mexico.

The others, it border on the two oceans, it says marks.

And those bordering only Great Lakes, it says the international boundary.

But, when it comes down to the Gulf of Mexico, what does it say in -- in describing the term “boundaries”?

We don't have to go to the dictionary for the purposes of this Act.

All we have to do is read the Act.

And it says but in no event shall the term “boundaries” or term “lands beneath navigable waters” being interpreted as extending from the coastline more than three geographical miles west in the Atlantic or the Pacific Ocean or three marine leagues until the Gulf of Mexico.

And I submit that that it wasn't in either gesture on the part of Congress when they recognized three marine leagues into the Gulf of Mexico and if the distinguished Solicitor's argument is to be accepted by this Court, he is asking this Court to write out of this Act those specific provisions, and the Governor of Texas so ignored hereon yesterday.

That very thing was attempted to be done when this bill was under consideration and twice the Senate refused to do it and wants the House of Representative refused to do it.

I call the Court's attention to the entire spreading into Section 4 of this Act it so -- which says, “Nothing in this Section is to be construed as questioning or in any manner.

They're just seeing the existence of any state seaward boundary beyond three geographical miles if it was so provided by its constitutional laws prior to or at the time such State became a member of the Union or if it has been heretofore approved by Congress.”

And then following up, the Submerged Lands Act, we got the Continental Shelf Lands Act.

Its been argued here that the -- the Government claim has no jurisdiction beyond these three miles.

And yet in Section 4 of the Submerged Lands Act, we find the United States Government say that the Constitution, laws and civil and political jurisdiction of the U.S. are hereby extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures which maybe erected thereon to the same extent as if the outer Continental Shelf where an area of exclusive federal jurisdiction located within a State.

And I submit, if Your Honor please, that with all deference, the letters from Secretary of State, with all deference to what somebody's foreign policy maybe at any particular time in the history of this nation, never has this Court held that foreign policy or letters of the Secretary of State can repeal a specific Act of Congress.

And that's what is almost attempted to prevail upon this Court to have done.

That has never been the law, and I hope never is.

The Act of Congress in dealing with these lands on the discussion is certainly the supreme law of this land and the one that we stand on.

Now, I want to go back and repeat and then I'm through.

We stand on our own Constitution of the United States of America.

We stand on the authority of Congress to convey that which belongs to the United States of America.

We stand on interpretation of the specific provisions of the Submerged Lands Act.

It's not -- to me, it's not complicated.

It boils down, as one of the justices asked here this morning, it simply boils down to what was the -- what was the boundary line of a State and what -- and what do you get from there under the terms of the Submerged Lands Act.

We submit that under the California case, our coastline would give these islands.

We accept that of course.

And we submit that under this, that it is much as we will convey six leagues that we are entitled to -- to go all out the three leagues as conveyed by this Submerged Lands Act and what true of us is true of all the other States.

And I'd like to call the Court's attention one more time that the only time the word “league” is used in this Act is in dealing with the State's bordering on the Gulf of Mexico.

In dealing with the others, it says “miles”.

I thank the Court for the time you've given me.

Print this transcript Transcript: 

Argument of John H. Price, Jr.

Mr. John H. Price, Jr.: Mr. Justice Black, may it please the Court.

Mr. Patterson said on behalf of the State of Mississippi prior to the lunch hour.

Now there the claim between the United States and the State of Mississippi does not evolve from shoreline but from the islands.

The Government contends and concedes to the State of Mississippi that the State of Mississippi line under the -- boundary line under the Submerged Lands Act, extends three miles seaward from the seaward side of the islands on the perimeter of our shoreline.

If the Court can see here, we have a chain of islands meeting from the east to west here.

We have Petit Bois, Horn, Ship, and Cat Islands.

Ship Island is more than three leagues from the coastline.

It measured approximately about three and one half leagues from the seaward side of Ship Island to our -- to our shoreline, I should have said.

These other islands are closer.

Petit Bois Island, near the closest point, is about six geographical or nautical miles from the shoreline and Ship Island is the farthest island away.

So the only controversy between the State of Mississippi and a Federal Government here is the difference between a -- a measure from three miles south of and seaward -- from the seaward side of this chain of islands here which they regard as our coastline under the Submerged Lands Act and upon which we claim to be three leagues from this, the seaward side of these islands into the Gulf, not to exceed however, six leagues from shore.

And the reason for the exception of course is, since Ship Island is more than three leagues from our shoreline, we cannot claim under our boundary description, under our Enabling Act and Act of Admission that we go a full league, full three leagues from the seaward side of this island.

We are bound by our boundary of description.

We recognize that fact.

Therefore, at every other point almost on our coastline here, we can go out full six leagues from shore, but at this one point here, we cannot go quite so far.

We can only go -- our maximum distance is six leagues from shore.

Now, the basis of our description and our boundary is on our Enabling Act in eight -- May 18 -- March 1817, and it read thusly, “The inhabitants of the western part of the Mississippi territory be and they hereby are authorized to form for themselves a constitution and state government.”

And Section 2 picks up, “And be it further enacted that the said State shall consist of all the territory included within the following boundaries.”

You see the word, “boundaries” used there.

Mr. Justice Harlan has pointed out on several occasions during the course of the arguments here, what is the boundary.

If the Court please, that is Mississippi's boundary here, which should be described hereafter in our Enabling Act.

They so specified as boundary here, to wit, without reading at all for the sake of brevity, I'll go around the circumference here.

Beginning up to the southern boundary line of the State of Tennessee which strikes the Mississippi River, it comes around to the Tennessee River and thence up to Tennessee River to the mouth of Bear Creek.

It gets down the line down do what was then, the northwest corner of Washington County, Alabama.

I believe that boundary has -- that county has been changed somewhat, but then it was the northwest corner of Washington County, Alabama.

It thence due south to the Gulf of Mexico, thence westwardly, including all islands within six leagues of the shore, to the most eastern junction of Pearl River with Lake Borgne.

Now, those were as important --

Justice Potter Stewart: Did it just say -- did it just say westwardly, or did it say westwardly along the Gulf?

Mr. John H. Price, Jr.: That -- that's westward, it always says, Your Honor -- along the Gulf -- and by the way, I'll --

Justice Charles E. Whittaker: (Inaudible)

Mr. John H. Price, Jr.: It thence due south to the Gulf of Mexico, thence westwardly, including all islands within six leagues of the shore to the most eastern junction of Pearl River with Lake Borgne.

Now, that language is important there because when it gets to the Gulf of Mexico and runs thence westwardly, it doesn't go thence westwardly to the most and east -- most eastern junction of Pearl River with Lake Borgne and then come back.

And as an afterthought, say including all islands within six leagues of the shore.

To me the effect would have been the same.

But I emphasize that effect because the boundary description comes across to that point of the Gulf of Mexico.

And then it runs westwardly and embraces all this area here, all the way over to the -- align directly to the most eastern junction of Pearl River with Lake Borgne here.

It sweeps the whole thing across one arm.

It sweeps the whole area after the six-league limit here in the Gulf of Mexico.

Justice Charles E. Whittaker: (Inaudible)

Mr. John H. Price, Jr.: Yes, sir.

Justice Charles E. Whittaker: Where is the mark of south (Inaudible)

Mr. John H. Price, Jr.: Yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. John H. Price, Jr.: Yes, Your Honor.

This point right here, and a continuation of this line drawn from the southern from the northwest corner of Washington County, Alabama, down to the Gulf of Mexico, that line projected out here, six leagues into the Gulf is our southeastern boundary line --

Justice Charles E. Whittaker: Right.

Mr. John H. Price, Jr.: -- under our description.

Did that answer your question?

Justice Charles E. Whittaker: No -- no.

Not just so (Inaudible)

Mr. John H. Price, Jr.: It is known as Mississippi's island, Your Honor.

And getting back to your question a moment ago, if I may answer it this way, as you quoted the paragraph from Mr. Patterson a while ago, as to how we claimed this inland water between the mainland and the islands out there.

First of all, we claim it by our boundary description.

We had a water boundary in the Gulf of Mexico according to our Enabling Act which was adopted by our Act of Admission.

We contend that.

Furthermore, as the Government concedes in his brief on page 254 of its original main brief, in eluding factor that cross statement about Louisiana, in the first full paragraph there, as in the case of Louisiana, we need not consider whether the language including the islands et cetera, would of itself, include the water area intervening between the islands and the mainland though we believe that it would not, because it happened with all the water, so situated in the -- in Mississippi is in Mississippi Sound, which this Court has described as inland water and cites Louisiana versus Mississippi.

The bed of these inland waters passed to the State on its entry into the Union, under Pollard's Lessee versus Hagan in 3 How. 212, decided in 1845.

So also we agree that Mississippi has a marginal belt extending three miles seaward from the islands marking the outer limit of the inland waters of Mississippi Sound, under the ordinary application for three-mile rule.

And then it sets up in the -- in the next sentence here, the only issue between Mississippi and the Government is, as I've mentioned a while ago in beginning.

Furthermore of course, under the definition in -- of the coastline in the Submerged Lands Act, which is clear to define there, specified of course we do claim that area also under -- under their Submerged Lands Act.

That's the only way the Government concedes it to us, by virtue of being inland waters.

That we claim it by our boundary description and also this Court's holding in -- in Pollard versus Hagan, in 1845.

Now going from here, did I answer your question, Your Honor?

Justice Hugo L. Black: I understand that the Mississippi (Inaudible)

Mr. John H. Price, Jr.: Yes, sir, that's correct.

But not to -- not to exceed three leagues from the seaward side of the island, Your Honor.

Justice Hugo L. Black: Well, are you (Inaudible)

Mr. John H. Price, Jr.: That's because the seaward side of -- of Ship Island here is moving three leagues from shore.

We can't claim quite so much at that point do you we think.

We are bound by our boundary description of six leagues from shore.

Therefore, we cannot go --

Justice Hugo L. Black: You say that as you put shore.

Mr. John H. Price, Jr.: Shore, it's right on the Gulf of Mexico -- right up here on the -- right up here Gulfport and Biloxi along that shore, it wraps to move some since the State came into the Union, but that is our -- the mainland of the State of Mississippi right there.

That's here -- that's our shoreline, as we see it.

Now furthermore, in pursuance to the Enabling Act as had just given, under your court or given by the Federal Government where our boundaries were set in Enabling Act.

It says you go out and you form your constitution and I will let you into the Union.

So we did so.

When I -- 1817 --

Justice William J. Brennan: Now Mr. -- Mr. --

Mr. John H. Price, Jr.: Right, sir.

Justice William J. Brennan: May -- may I just clear up one thing that puzzles me?

Mr. John H. Price, Jr.: Yes, sir.

Justice William J. Brennan: United States concedes that this water between those -- outermost islands in the shore.

Mississippi is a part of the inland waters of --

Mr. John H. Price, Jr.: That's correct, Your Honor.

Justice William J. Brennan: You however claim that you get it not by reason of that or in addition to getting it that way.

You get it because it's within your boundaries.

Mr. John H. Price, Jr.: Yes, sir.

That is correct.

Justice William J. Brennan: So we come back to the question of whether or not, the boundary is at the outermost island.

Mr. John H. Price, Jr.: Yes, sir, that's correct.

I will come to that -- I'll -- I'd recognize that to be important to the Court and I will come to that and -- and stress that in -- in a moment or two.

In our Constitution of 1817 pursuant to our Enabling Act, we started -- we represented the people inhabiting the western part of the Mississippi territory, contained within the following limits.

There again, we set our boundaries limits are.

And we describe our boundary the same as they were described in our Enabling Act, and I just conclude by saying and thence westwardly including all islands within six leagues of the shore to the most eastern junction of Pearl River with Lake Borgne.

Now, the next Act with regard to our coming into the Union was our Act of Admission.

And perhaps I should read it to the Court to show how we do refer back to our Enabling Act, “Whereas in pursuance to an act of Congress passed on the 1st day of March, 1817, entitled an act to enable the people of the western part of the Mississippi territory to form a constitution and state government and for the admission of each State -- of such State into the Union on equal footing with the original States.”

Incidentally here, Your Honor, I know of no place in the Constitution that equal footing appears, except in these acts of admission that the Court inquired about this morning.

The people of said territory, did on the 15th day of August in the present year by a convention called for that purpose, formed for our -- themselves a constitution and state government, which constitution and state government so formed as Republican.

And in conformity to the principles of articles of compact between the original States and the people of the States and States in the north -- the territory northwest of the River Ohio etcetera.

So that -- it refers back to our Enabling Act.

So we come to the point that the Government's -- the argument there that, at the time, means this boundary relinquish theory, when you came in, you could not claim more than three miles.

Does the Government say by that theory that when they set out boundaries themselves by the Enabling Act and says you may form your constitution, if you do so on Republican way and in effect, cite these boundaries, we'll let you in?

Did the Federal Government reneged on its agreement prior the time we came into the Union?

If you follow these rules, we'll let you in according to this boundaries authority.

Therefore, we contend the Submerged Lands Act means when it says, as it existed at the time it came under the Union or prior to.

If you read it into Section 4 of the Submerged Lands Act, that necessarily, this Act of Admission is not a one second proposition.

If there's a continuing act from the Enabling Act to the Constitution of the State and then on to the Act of Admission, that is bound to follow by any reason of interpretation, we contend.

A federal rule by Mississippi Constitution of 1832 and 1869, our boundaries were not changed.

In 1890, we started off by saying the limits and boundaries of the State of Mississippi are as follows, and described them -- substantially a lot there described in the Enabling Act with different language in some particulars.

But then we come down thence on a direct line from this -- what was formerly Washington County, Alabama.

Thence on a direct line to a point, 10 miles east of the Pascagoula River on the Gulf of Mexico and then the same language out that thence westwardly including all islands within six leagues of the shore.

Now this, as Mr. Patterson said this morning, this six --

Justice Hugo L. Black: To -- to a -- to a certain point, where is that certain point on the map?

Mr. John H. Price, Jr.: The point -- Your Honor, that point there --

Justice Hugo L. Black: Yes to --

Mr. John H. Price, Jr.: -- that says, thence to -- down to --

Justice Hugo L. Black: 10 miles most eastern junction of Pearl River with Lake Borgne.

Mr. John H. Price, Jr.: That's over here, Your Honor.

Justice Hugo L. Black: That right there?

Mr. John H. Price, Jr.: It comes -- it comes to crossover to that point here.

It's a line out from that area into the Gulf of Mexico, we say is our southwestern boundary line.

Justice Hugo L. Black: It says to the most eastern junction of Pearl River with Lake Borgne, is it joined there in the Gulf?

Mr. John H. Price, Jr.: It joins in the Gulf.

It joins (Inaudible) projected of a line out from the -- the most eastern junction of Pearl River with Lake Borgne is our shore -- where the line appears on the shore.

Our seaward bound --

Justice Hugo L. Black: Where is the -- where is the -- that junction on the shore?

Mr. John H. Price, Jr.: Right here, Your Honor.

Right here down, our western boundary here.

Justice Hugo L. Black: That's on the island.

Mr. John H. Price, Jr.: Those 50 islands cited here that our shoreline comes out and projects out here, right here.

Justice Hugo L. Black: Now what is that point right there?

Mr. John H. Price, Jr.: This point here is the most eastern junction of Pearl River with Lake Borgne when you come across from the southeastern boundary line and bring all the islands and area into the six-league boundary and you come over to this point here, include with the lines projected out here into the Gulf of Mexico, just six leagues from -- from shore at that point.

Justice Potter Stewart: Where is -- where is Pass Christian on that? It's not in our part --

Mr. John H. Price, Jr.: Is that -- it's not on the map (Inaudible) at this point here Your Honor (Inaudible) right here that's --

Justice Potter Stewart: And where is the Biloxi?

Mr. John H. Price, Jr.: Biloxi is --

Justice Potter Stewart: Over there, yes.

Mr. John H. Price, Jr.: Biloxi's right here.

Justice Potter Stewart: Yes, right.

Mr. John H. Price, Jr.: Biloxi and (Inaudible) over here.

Justice Potter Stewart: Pass Christian is over by the (Inaudible) water.

Mr. John H. Price, Jr.: It's back over this direction here, Your Honor back towards the Louisiana land over here.

Justice Charles E. Whittaker: Mr. Price, do you understand with reference to Section 2, you within this (Inaudible) waters to uphold stroke of the breadth of the -- your southern ground boundaries?

Mr. John H. Price, Jr.: They do not, Your Honor.

They only concede after the seaward side of these islands here, a line drawn from island to island seaward side to seaward side of the islands, along the seaward side to the islands.

Justice Charles E. Whittaker: But does that cover the whole distance both in east and west of your State?

Mr. John H. Price, Jr.: The island do not -- do not quite, Your Honor.

Justice Charles E. Whittaker: Is that a concession?

Mr. John H. Price, Jr.: I beg your pardon?

Justice Charles E. Whittaker: Is the Government's concession?

Mr. John H. Price, Jr.: That is the Government's concession.

And our boundary (Inaudible) comes across, and under on Louisiana versus Mississippi, it was projected that only the State of Mississippi is somewhat like this.

And it withdrew with -- the lines would follow as they can all the way across our southern boundary line as I understand their concession.

If the Court please, hurrying along here, we claim the southern portion of Mississippi this part here, (Inaudible) on 1812 under the Louisiana Purchase.

That was held by this Court in Foster versus Neilson.

We occupied it, a person does not ought to occupy by Proclamation 1810.

And in Foster versus Neilson, this Court held that by virtue of the fact that Legislative Branch had acted in asserting a claim to by adding to the Mississippi territory in 1812 and other actions that it was taken by us and giver out -- granted to us by the Louisiana Purchase.

Now, the most important part I'd like to get to you now, as before my time runs out is the fact that the reasonable basis for our conclusion here that our line doesn't go just to the islands out there, although it includes the islands, it goes through the area of six leagues (Inaudible), six leagues from shore.

And historically speaking when Fort Massachusetts were built on Ship Island here, in about 1859, Congress appropriated money for it and built by 1860 or 1861.

And the fort then, as history shows, is well upon the mainland and Ship Island.

At the present time, if you go Ship Island, you see that the -- in the north side of Ship Island under the land we'd cite, the island now, the fort now sits considerable distance out into the water on one side, because the island has washed away to that extent.

Also Ship Island near and not entirely after it's drawn on this map, because now, that this map would go -- in 1947, a hurricane in 1947 cut a channel and cut Ship Island in two.

The U.S. told from geodetic survey charged that you have in the back of our brief, do show that severance in our island and so that there was a complete separation of the island here.

Justice John M. Harlan: Can I ask you a question, now? Are those islands inhabited?

Mr. John H. Price, Jr.: If your Honor please, the American legion if Biloxi-owned Ship Island now.

And they have this port of course, which they have somebody I've taken care of ensure impasses by through.

It's also a concession stand out there, the beach which is frequently used on the seaward side of the island here.

Now, there've been some talk about, I think it belongs to the other island, they're not very well developed as yet.

But people did go out there, they're not even going to live out there, except that they have a lighthouse in Ship Island, of one man that I know of, who lives on Ship Island was all who takes care of the fort out there.

But there was an island here, in 1931 disappeared.

Just in the east -- east side of Ship Island here, what is now shown here in Coast & Geodetic Survey chart in our brief, there's a (Inaudible) right in this point here.

That island was built up.

It had been developed and there was a night club out there and it was quite a tourist attraction for -- for a great many years.

In 1930 and 1931, the island finally disappeared and that allows under about three and half feet of water.

The only evidence remaining of the past existence of the island here's that there's now a -- an artesian well pipe that's (Inaudible) water into the Gulf of Mexico.

Also, as Mr. Sachse mentioned yesterday, Timbalier Island off -- off the coast of Louisiana has moved some nine miles in the last number of years.

Therefore, we contend that the very nature of the islands here, that islands move and ship from place to place.

Therefore, definitely positive that if we contend, that there might be an island here, next week or next year off and seaward of these islands here.

And it must've been known when the boundary was -- was described in the early days.

When La Salle came over and claimed Louisiana for the -- province of Louisiana for France, he claimed all the -- the seas and the bays and (Inaudible) and whatnot and the ports south of the -- of the River Mississippi.

He must have sailed in this area around here and determined the nature of these islands here.

And by the same token in 1699, when Iberville came over and settled here at Biloxi in 1699, he also ought to find (Inaudible) on Dolphin Island, which is over in -- another sand island over here in off the coast of Alabama.

He stayed there for 23 years before moving on to the -- what is now about the area of New Orleans, City of New Orleans.

Therefore, he must have known precisely of where these islands -- what can -- what type of islands they were.

Furthermore, when King George issued his Proclamation of 1763 on which we tie our six leagues boundary to.

When he got this land in obsession, he divided into the provinces of East and West Florida.

This part of Mississippi here below the 31st parallel, is a part of what was West Florida.

He described West Florida in his proclamation as south of Mississippi territory, which was in 31st parallel, east of Mississippi River and west of the Perdido.

Therefore, this area, all in here, was in that -- that area and he established this line that six leagues from shore.

He must have known himself what the nature of the islands were.

I can find no way at all to tell now where precisely the islands were in those days, back in the old days of King George and so forth.

There's no way out to tell where they are.

And we must, I think, concede that island shift and move and certainly if a week or a year after King George occupied the area and divided this -- this two provinces of East and West Florida here, he must have -- he must have realized that if an island appeared further out in this -- if this was a chain existing then, that surely he would have reached out beyond that and got in the island beyond there.

And by the same token, I believe, as what the United States in the Enabling Act set the boundary of six leagues from shore.

If an island had appeared, most assured, they would have claimed that island out there as a part of the United States, because it would then be in -- within the six leagues boundary line from the Gulf -- from the shoreline.

This King George's proclamation of 1763 came on down from that time after dividing the two provinces of East and West Florida.

West Florida then was seated all the way down the line just as West Florida.

The boundary line was established and through the whole chain of conveyance, we -- it came down to us as West Florida under the Louisiana Purchase.

If the Court please, there's one thing I'd like to close with is the Federal Government position in this case that national policy has already been started before the defendant States came into the Union.

And that limited the boundary three miles from coast and a state boundary on the Submerged Lands Act on this is limited by the national boundaries.

The question I have is this.

It seems that by language and by that attitude that the Federal Government says that the Government takes the position that by passing this Submerged Lands Act by Congress and by the President's approval of that act by Congress, then that it would turn in chief, this was April's fool joke played in May on the Gulf coast States.

You've got to give some meaning to the three-league provision in the Submerged Lands Act.

We don't believe we can challenge the sincerity of a good faith of Congress and the President in putting that proviso in our Submerged Lands Act.

It must be given some meaning by this Court.

It means something, else why did they put it in there.

Let's go to our rule of the statutory construction as outlined here in the joint brief of the States on page 37.

We cited this Court an ex parte Public National Bank of New York, it says, “No rule to statutory construction has been more definitely stated or more often repeated than the cardinal rule that significance and effect, shall, if possible, be accorded to every word.”

As already -- breaking the abridgment to Section 2 was said that, “A statute off upon the whole to be construed.”

That if it cannot -- if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.

They read a meaningless thing into this thing of this -- of the three-league boundary, three provisions set by the Submerged Lands Act.

It must be given some meaning by this Court.

And if we had no form about this, there'd be no foreign boundary every established by any act of Congress, only by prejudice.

And if it's necessary to do so, I think this Court should hold that the Submerged Lands Act establishes national boundary.

That is not a part of this case however.

And I will quickly show that Mississippi does not claim any territorial sea or any territorial waters, we claim only submerged lands under the waters, out of the six-league boundary line.

Justice John M. Harlan: Don't you think you're overstating the position of that when you say that the Government's position was involved reading -- making the Act meaningless?

Does the Government concede that if there was an act of Congress in letting a State to the three-league boundary, then notwithstanding general and national policy with respect to three miles, the State would get that Submerged Land Act rights out to the three-mile limit or three -- three-league limit.

You can't quite say that the Act becomes meaningless, it seems to me.

Mr. John H. Price, Jr.: If Your Honor please, as matter of national policy talks about in foreign policy by the United States and his argument is, it distresses time and time and time again is, that our foreign policy was three miles, only three miles.

They were -- the -- the debates were voluminous and unending almost in Congress about this Act.

There were just countless, hundreds and thousands of figures in the reports about this thing at Committee hearings.

The Congress knew it would expose of what our national policy was.

The President, the Chief Executive Officer have known what the Secretary of State would do and certainly he can act only for the Executive.

They -- if there was a national policy, they knew it absolutely.

And they said if -- if it was at that time, the Act must mean that despite that fact and we say it was no national foreign policy of three miles absolutely, but if there was, they said that we're going to ignore the foreign policy if we must.

We're going to give the States out to -- if they can prove their historic claim at the three leagues from -- from coast, we're going to give that much out there.

And our territory was that we're going to reserve that to ourselves.

But insofar as the submerged lands and not the resources therein, we're going to give that to the States.

Did that answer your question, Your Honor?

Justice John M. Harlan: Well that turns on whether you read existing at the time I was meaning the moment -- after the moment before.

Mr. John H. Price, Jr.: Yes, Your Honor, as I mentioned a moment ago, I don't see how in the world you can read it that way as saying the moment after we came in the Union.

Justice John M. Harlan: Well all I'm suggesting is that your statement is a little overstating, it seems to me in fairness to the --

Mr. John H. Price, Jr.: I don't want to overstate (Inaudible) Your Honour.

Justice Hugo L. Black: Your time is up.

Mr. John H. Price, Jr.: Thank you.

Argument of Rankin

Mr. Rankin: Mr. Justice Black, may it please the Court.

I'd like to see if I can do a little with this boundary question of Mississippi and also treat with the problem of the Gulf and --

Justice Hugo L. Black: I wonder now it would be a good time to any case that's probably good for these maps here, if some of them have been (Inaudible) to the argument.

Those would have should we need them.

Mr. Rankin: They aren't our maps but --

Justice Hugo L. Black: Well who (Inaudible)

Mr. Rankin: Sure I can.

Justice Hugo L. Black: -- can you make that make it out.

Justice Charles E. Whittaker: (Inaudible)

Mr. Rankin: If we take this description of the boundary that appears on page 327 of the Government's brief, boundary of Mississippi, it starts out with, “The State shall consist of all the territories included within the following boundaries.”

So as I read that, that would be all the various kinds of property to maritime or land or otherwise within this definition.

And if -- if counsel (Inaudible) turned up to here and go on down and then as -- as I read it, it comes to the Gulf of Mexico.

Justice Potter Stewart: You're talking about the Enabling Act?

Mr. Rankin: Yes.

On page 327.

Justice Potter Stewart: Thank you.

Mr. Rankin: Then it says -- thence west -- westwardly and that would be in United States that would be right along here until it gets to the point that Mr. Justice Black called (Inaudible) over on this end.

Now, if you read it as Mississippi is suggesting that you go on down for six leagues because of the language including all islands within the six leagues of the shore, there's no sense to the proposition of referring to the islands at all, because you've already -- already got them there.

Here it says all territories.

Territory by definition, as all of the experts includes not only land, but everything else within the area described so far as boundaries of States are concerned.

If you run on down here for six leagues and then come over, you really got to go north a little bit to get back to where Mr. Justice Black referred to that (Inaudible) do that somehow, to get over here and he's got the islands all within it, without ever referring to.

You don't refer to any of that other States, you don't refer to any of the rivers, inland waters and so forth, that are involved in the territory when you're describing it that way.

So that the only way we think that you can read it, is that you go westwardly as it says along the Gulf.

And then to be sure you pick up the islands, you say including all islands within six leagues of the shore.

You'll notice the word, “shore” is used in this particular Enabling Act and it's again used in the Alabama Act instead of coast as was used in the Louisiana Act.

Now, we'll get down to what shore and coast means.

In the case of Louisiana against Mississippi, this Court held that when Congress said in the Enabling Act for Louisiana that it was coast, but it meant shore.

And I'll try to prove that to you on the map.

Here is what the Court referred to as St. Bernard Peninsula which we would call and which the Court did refer to as shore.

And we started to measure from that point in and instead of treating it as coast which was run out -- I think it's a brief by all parties here in the States, as was the United States that it run out the islands.

Justice Hugo L. Black: Where did the word -- the word coast appear?

Mr. Rankin: It appeared in the Enabling Act of Louisiana.

Justice Hugo L. Black: Of Louisiana, not Mississippi?

Mr. Rankin: Yes.

Not Mississippi.

I was trying to make that --

Justice Hugo L. Black: Yes.

Mr. Rankin: -- distinction between the two.

Enabling Act of -- of Louisiana is on page 224.

Now, we think it would be very strange for the United States to admit these States and as one keep in mind, the order in which they were admitted, Louisiana first in 1812, and then Mississippi as I recall in 1817 and Alabama in 1819.

And each one closely together, but to admit Louisiana first and give it only three leagues and then give the other six leagues, if there was any such intention to do that kind of thing.

But if they -- they did it with regard to the islands that there might be there, that's a common thing for countries to do, because you wouldn't want some other nation to come out and take an island that is right at the mouth of one of your chief water sources, navigational importance, navigational streams and be able to affect your commerce or be a threat to your commerce.

So we think that the only basis we agreed that the only place where that six leagues could have come from that we could find, was the Treaty in regard to Florida which is -- which referred to the islands within six leagues.

Justice John M. Harlan: Which is the State that -- that description is it applicable to six leagues?

Mr. Rankin: The six leagues in both Mississippi and Alabama.

They both claim it.

Justice John M. Harlan: Well, you're saying six?

Mr. Rankin: And it's described in --

Justice John M. Harlan: Yes.

Yes.

Mr. Rankin: -- in both of the Enabling Act.

Now, in regard to the question of shore and coast, the shoreline would follow the various sinuosity every coast.

And there are thousands of them, maybe I think, we all agree on this Gulf coast along here and it would go on inside of bays and all the other points all along right there.

I am rather loosely pointing to it, but that's the way the shoreline would go.

The coastline would follow along the islands that they recognize as having inland waters inside them and so we are in agreement, I think, that the islands, so far as the coasts is concerned, would be the point of measurement under the Act and we come down here and follow along wherever there was inland waters.

And then you measure it from there, instead of going back to those sinuosities.

Now, where the Gulf is, when they described and use Enabling Act that you come down to the Gulf, we think, it could be wrong that it means like you would say you'd get -- come down to Pacific Ocean, it's where the sea, the salt sea comes up in a medium-low water against the coast.

Justice Charles E. Whittaker: And that's the (Inaudible).

Mr. Rankin: That's right.

And that has to be what they're talking about at the Gulf.

Now when they talk the mouth of the stream at the sea, we think that's where that water from the stream comes against the sea and is the mouth of that stream as so recognized.

If anybody was going to say, “It should be three miles up from that point”, we think they'd say it.

Now, there is some claim that La Salle claimed all the area out to the 27th parallel here for Louisiana, when he came to that -- that area and issued his proclamation.

He said however that he claimed all from the source of the -- what is known as the Ohio river and all from the source of the culvert also known as the Mississippi River to the mouth and then he said to the 27th parallel.

And he then went back a ways up from the mouth of the river to the first point that he could find that he could plant his memorial and he put it there claiming it for France.

Now, we think that it's just another evidence as we pointed out in a number of times of the fact that La Salle just made mistakes about longitude and latitude various times.

And that there was no purpose to claim an area way out like some 127 miles into the Gulf that he hadn't explored and didn't show any interest in from the rest of his action and proclamation.

Now, yesterday, I made the claim that in construing a grant of this kind that it should be strictly construed in favor of the United States and against the grantee.

And I cited the United States against the Union Pacific Railroad Company and I was asked by the Court if, “Do you ever do that about the States? Was that applied to the States?”

I found one case in regard to it and that's 190 U.S., United States against Michigan.

This isn't in our brief.

Justice William O. Douglas: United States versus Michigan?

Mr. Rankin: Yes.

190 U.S.

Justice William O. Douglas: 190.

Mr. Rankin: 190.

379.

Now, that applies it expressly to a State as a principle of law.

I do want to call attention to the fact that it's -- it speaks of it as public grants -- grants for public purposes.

I don't see any distinction.

I still seriously urge upon this Court --

Justice Felix Frankfurter: What is the controversy about it?

Mr. Rankin: It was a question of (Voice Overlap) --

Justice Felix Frankfurter: Did the government -- what was giving permission then?

Mr. Rankin: It was certain.

There were certain grants and there was a question of whether they'll continue to use them for the purposes that the Government had limited them to.

And the extent --

Justice Felix Frankfurter: But to the Railroad and whatnot.

Mr. Rankin: It's that kind of a thing.

And I still contend that while this case might not -- squarely, the Court did use it as a rule of law, it applied to States as well.

It definitely stated it that way.

And I contend on behalf of the Government that where you are considering properties of -- of substantial rights as these are that there should be applied a rule of law that would, in carrying out the intend of Congress, if there's any doubt, it should be applied to protect all the people of United States as against a limited number involved in the States.

Now, we have another case that is not in our brief that I'd like to call the Court's attention to.

I referred to it the first day, but I didn't give you the citation.

And that is the case of The Anna.

Justice Hugo L. Black: D I --

Mr. Rankin: The -- The Anna, A-N-N-A.

It's a ship.

Justice Hugo L. Black: It's called The Anna.

Mr. Rankin: Yes.

And it's in Volume 5 of Robinsons Admiralty Reports at page 373.

Now, this is the case that I referred to and I think it's a great weight here, because it involves this very area that was decided in 1805 by Sir William Scott, later known as Lord Stowell.

Justice Hugo L. Black: What year?

Mr. Rankin: 1805.

And this was right around -- this was before, you see, Louisiana or Mississippi or Alabama and of course, long time before Texas and Florida were admitted into the Union.

In the case, counsel referred to this statute of the United States.

And they say the three-league, the three-mile claim -- a marine league is clearly made by the United States by the statute.

In fact they say the laws of the United States on this question are laid down with the exact precision and direct, “That their District Court should take cognizance of complaints by whomsoever instituted, in cases of captures made within the waters of the United States or within -- within a marine league of the coast and shore thereof.”

Then this involved the privateer if you will recall and it was a question of whether he was with -- it was within three miles of our shores right at the mouth of the Mississippi River at the time it was taken.

And if it was, then it would not -- it would have to be released.

And Sir William Scott held that this was territory of the United States when it was taken within three miles that this ship was within the territory of the United States and therefore, under the law, it had to be released because it was a property that was under the control and direction -- protection of the United States and its territory.

Then the King's advocate says “This is a claim of territory, alleged in the most solemn form by the directions of the Ambassador of the United States.”

You see it's the position that the Ambassador has presented to the Government and is being presented by the King's advocate by that direction, the most solemn form, resident in this country.

And then the Court goes on to deciding the question.

When the ship was brought into this country, a claim was given of a great nature, alleging a violation of the territory of the United States of America.

This great leading fact -- fact has very properly been made a matter of much discussion and charts have been made before the Court to show the place of capture, though with different representations from the adverse parties.

I apologize for my mistakes the times it got the essence in the old style and it's a little difficult too.

The capture was made it seems, at the mouth of the river Mississippi.

And as it is contended in the claim within the boundaries of the United States, this is 1805, “We all know that the rule of law in this subject is “terrae dominium finitur, ubi finitur armorum vis” and since the introduction of firearms, that distance has usually been recognized to be about three miles from the shore.

But it so happens in this case, that a question arises as to what is to be deemed the shore.”

Now you'll notice that he says, “We all know what the law is” that that distance that you can control by your arms which is recognize to be canon shot is the territory that the country has.

Justice Felix Frankfurter: Less than that -- nobody thought it was less than that, that is just you cleared.

Mr. Rankin: I don't recall of any the instance left.

Justice Felix Frankfurter: Was this -- this could be a question of a price of a vessel of sea within the three-mile limit?

Mr. Rankin: Yes, Mr. Justice.

And that --

Justice Felix Frankfurter: Whether the claim of the -- of the seizure -- of the seizure.

Mr. Rankin: The seizure claimed that it was not within the three-mile limit.

Justice Felix Frankfurter: That is -- as a geographically, it was beyond the three-mile, is that it?

Mr. Rankin: No, it was geographically found by the Court to have been seized within.

Justice Felix Frankfurter: Yes.

Mr. Rankin: But the -- there was no contention that the law was different or that the United States territory didn't extend for the three miles.

Justice Felix Frankfurter: No.

Mr. Rankin: The only issue was whether or not the actual seizure was within that territorial outside.

And that what I am trying to demonstrate is that back in 1805, the court of another country examined our position as to what our territory was and found it to be that because of the representations of the Government and from his own independent examination and concluded and applied it.

Justice Felix Frankfurter: I am suggesting that nobody thought that we had lesser right and -- within the three-mile limit.

Mr. Rankin: Well -- but the -- the issue was if it was beyond the three-mile and that's what they claimed, just one -- a foot or so, they would have been outside.

That was what they were trying to decide.

Justice William O. Douglas: What did this case decide?

Mr. Rankin: It decided that they had to give it up, that it was found to be within the three miles and therefore taken within the territory of the United States which was found to be three miles outside or from the coast.

And therefore, it couldn't properly be taken as privateer.

That was the holding.

And the Court didn't find that they had three miles -- the United States had three miles and one foot.

They found, as a matter of law --

Justice Felix Frankfurter: No.

But if -- if it was within the three miles, then the seizure was --

Mr. Rankin: Invalid.

Justice Felix Frankfurter: -- was invalid.

Mr. Rankin: Yes.

Justice Felix Frankfurter: Lord Stowell wouldn't recognize it and nobody else would.

Mr. Rankin: Yes.

But he also found -- had to, because if there had been no -- if our boundary or territory had been six miles or three leagues, he would have no problem whatsoever, because it was --

Justice Felix Frankfurter: It was English ship?

Mr. Rankin: No.

It was a ship that belonged to a New Orleans man.

Justice Felix Frankfurter: And -- and the Britisher seized it and the question, whether he could keep it.

Mr. Rankin: That's right.

And that had a very bad --

Justice Felix Frankfurter: We don't know what Lord Stowell would have said if it has been found outside of three miles.

He was rather -- he was rather nationalistic in his interpretation as far as law, as we all know.

Mr. Rankin: Well, Mr. Justice, I think when you examine the case, you'll find that the issue was whether it was out three miles and a half and so it --

Justice Felix Frankfurter: If they found it wasn't so the legal question doesn't arise.

Mr. Rankin: Well he wouldn't have -- he would have said that it's -- if he thought --

Justice Felix Frankfurter: What you're saying is, he would have said, “I don't care, whether three miles or five.”

Mr. Rankin: if -- if the boundary was actually three leagues, he would have said, well what other.

It's -- the evidence are all clear.

There's no issue here.

It was still within it.

But he had to find out whether it was really three miles within three miles or was out three and a half.

And that's what the -- the issue boil down to.

And I think the case is very important for its recognition of the claim of the United States, a claim made by our Government and determination by a foreign court right at the time that seems crucial on this matter in 1805.

Justice John M. Harlan: With respect to the territorial (Inaudible).

Mr. Rankin: Yes.

It deals with -- you see that the argument's been made in this case.

Well, of course, three miles applies to other places.

The United States, the policy is so claiming that, but it doesn't apply to it -- to the Gulf.

That's special.

And here's the case, that isn't our Government isn't our courts or anything; it's one of the great judges of Admiralty of Britain that examines the question and finds right at the time before any of these States that we have that policy that it controls, applies it to a New -- New Orleans ship in actual life.

Justice John M. Harlan: As a matter of construction, you may (Inaudible)

Mr. Rankin: No I didn't.

I concede that.

Justice Hugo L. Black: Mr. Madison.

Argument of Gordon Madison

Mr. Gordon Madison: Mr. Justice Black, may it please the Court.

Alabama has two pleadings you might say which have been filed in the Court, which do not pertain to the other States and before I go into the argument proper, I believe it's well to call the Court's attention to what those are.

Justice William O. Douglas: Is this your brief as to the (Inaudible)?

Mr. Gordon Madison: Yes sir.

We were in a measure, invited by the Court after Texas filed a pertinent proceeding of the brief here in which it asked the Court not to bother Texas in the Louisiana case if it decided it to come in and intervene.

Alabama didn't have any oral aperture at that time and doesn't have any now.

And if we had to wait until the United States sued us in order to determine what our rights were at that, I don't know that we would have ever known, because there's no assurance that we never had oil, although we do have a number of oil wells which have since been discovered in the Baldwin and Mobile County areas.

That took the form of intervention by the State of Alabama with the supporting brief.

After that, the United States amended by making all of the defendant States parties respondent.

To that, Alabama filed a short answer and the brevity of these things in the -- the strength of Alabama's claim rather than the lack of it.

It's about two or three pages.

We made that a cross bill.

In my ordinary practice, if the United States had not been involved, I would most certainly have had a cross bill.

And it seemed to me that the Submerged Lands Act impliedly, if not expressly, authorized the State to file something to determine what they had.

But in any event, the Government concedes that Alabama can have just as much as anybody else under his answer without the cross bill, if it can prove it.

So rather inject that issue into this case for whether we can sue the United States or not, based on the Government's concession to us on that point, we do not insist on the cross bill.

Next thing we filed was a brief for the State of Alabama in our position to the Government's motion for judgment.

And I'd like to emphasize that that is what is pending here today.

We haven't tried this case.

We haven't introduced any evidence.

We haven't done anything, except appear here in response to a motion which has been filed by the United States asking for a judgment.

Subsequent to that, there has been some changes in our administration, former Attorney General has become Governor.

And one of our former Assistant Attorney General has become Attorney General.

There are difference in the Governor's legal advisers and the head of the Conservation Department and they wanted to be in some sort of way, so I figured out that I would make what I call a written memorial and I want to say that memorial can refer to a tombstone of a graveyard, and I'm not submitting in that sense that Alabama case is going to be bad, but it's a written memorial of the oral argument of necessity.

Of -- of course, the Court knows that I didn't intend to read it.

Justice Hugo L. Black: The memorial, it has to do with (Inaudible).

Mr. Gordon Madison: It does, yes sir.

And some of these foreign policy claims which I thought had been settled by the question from the Court to those preceding me, but I find it every time this distinguished gentleman gets up, it pops up again.

So, I -- I don't think I'll even attempt to answer that except in this way.

I can see the gentleman and all the Senate and House now.

And by the way, at this point, I want to say that my two distinguished Senators were in full opposition of the Submerged Lands Act.

We're fighting at every step.

If they had been for it, the record would have been full of Alabama's claim just like you find for Texas and for Florida.

Now, they went out there as I believe and said we just gave right to Texas and Florida into this thing, and we'll pass.

But we'll get us up a formula or a criteria and I understand that they send it over to the Justice Department to get help on framing that language.

So that we will make it almost foolproof as far as Texas and Florida are concerned, we're writing here prior to take care of Texas or it approved by Congress, subsequently approved by Congress to take care of Florida when it would have made it later as a rebel state and any generality, we let everybody else come in that can prove a boundary to take care of the (Inaudible).

But when they got that, they got it fast.

Well I submit that the Congress did not place, it did not place in Alabama's hand or anybody else's hand, a yardstick which struck the one foot the moment we call all to it to measure our rights.

And the one foot had got -- it's comparable to the three geographical marks.

As I understand the Government's contention, that although we'll give him a right to prove it, we can.

Now, I say it that although the Act may not be meaningless, Mr. Justice Harlan, in that sense, if his contention is correct that we cannot make proof even though we've got proof, we can make it because of some so-called three-mile rule, and then there are clear agreements.

The Congress has done a futile thing.

Now outside of that, he says you're bound.

Justice John M. Harlan: (Inaudible) Government's reply brief when it took that position (Inaudible) Alabama against Texas.

Mr. Gordon Madison: I am glad you brought that up, sir.

And if we -- if we're going to -- if we're going to talk about that a little bit, I believe you'll find although he had his tongue in his cheek that the distinguished Solicitor General took the side that Congress can give one state more than it can give us.

Fair to the brief is devoted to it, so both of us better forget that.[Laughter]

Justice Felix Frankfurter: Do you think res judicata does not apply to Thompson's brief?

Mr. Gordon Madison: Well, I beg your pardon?

Justice Felix Frankfurter: Do you think res judicata does not apply to Thompson's brief or argument.

Mr. Gordon Madison: Well, you mean, Your Honor, it is a reply in kind?[Laughter]

Justice Felix Frankfurter: I mean Thompson take whatever position he sees desirable for the case in hand.

That's what I mean.

Mr. Gordon Madison: Now, I don't believe this Court is going to hold that in the statement, but made by our Attorney General at that time, because their position changed depending on which side political offenses might be on.

Can trigger by Alabama's boundaries or -- or bind them, we couldn't get in, in Court with that case.

And we used practically the same argument that Government is using now.

Now, if you all take the Government's argument now as we get in Court that takes us out, at least that's unfortunate.[Laughter]

Justice John M. Harlan: As of this part of (Inaudible).

Mr. Gordon Madison: Now, you -- you'll notice in this -- and we'll try to get down to them to my case now.

You'll notice in its memorandum which are filed here, the memorial, I refer to various wards.

I don't want to take that up except to say that the idea in referring to the Court's expression in Johnson versus M'Intosh in 8 Wheat.

That's a contest between the cabinets over a sale and matters respecting in the territory on the Northern coast of the Gulf of Mexico were fierce and bloody.

And then the war, it came with -- with England and Spain and France, being fought them.

And after that, I think about 1780, Spain fought England and got West Florida back, all of Florida for that matter.

Then our historians said that Spain then control the whole Gulf coast.

And after that, we show the -- the War of 1812.

We show the proclamation of President Madison who ordered General Raperson (ph) to take Mobile -- gun boats were off Mobile Bay then.

The Spaniards were still in possession.

During that War of 1812, they've allowed the Florida forced to be used by the British, so Jackson when he finished it then, he went on down and stands (Inaudible) took that and he came on back and went to New Orleans and they fought the battle in New Orleans.

In the meantime, British made attacked on one of our ports out there, (Inaudible).

But even as late as 1815, when they were retreating from the (Inaudible) Mississippi, they attacked at the port again and captured it.

When I enumerate those statement, I am not having a low for it.

I enumerate them because it seems to me and on the unsettled condition at that period, during those periods, with no declared boundary from the national standpoint in the Gulf of Mexico that those different wars showed that each nation demanded for its own security, a greater wit than three miles.

Now, the next thing I'll show is the dispute with Spain.

I realize this Court says he got -- that he got West Florida, that portion which is pertinent to Alabama and Mississippi through the Louisiana Purchase, but it did so because that Congress had determined that and you're bound by -- looked like he'd be bound with some Congress done by the Submerged Lands Act too.

But anyhow, I don't know whether if you have called upon to decide that straight question, you say is enough.

Again, Monroe and he went through a pass in 1804 and he -- he directed the communication of (Inaudible) under the French Minister of Exterior Relations setting forth our claim on Louisiana Purchase and he replied in decided terms so our case is there.

The case of Foster versus Neilson, decided terms that with all the negotiations between France and Spain that no part of the Florida neither West or East, was conveyed or granted, or by the cession to France by Spain.

And that gave rise to dispute.

Now, we allowed the Spanish to stay in possession, it was regarded under the Louisiana fort.

And we actually didn't get possession of that territory in the sense that we could have physical possession of it, until our set battle of New Orleans.

Now, I -- I don't have any law for this either, it was the kind of rule of commerce stamped in either way.

I don't know hope too much within natural law.

What can you project into the area of that kind?

The foreign policy of three miles when it's subject to dispute and which President Madison said when he sees it that he's going to hold it subject to friendly or just settlement.

While in this to Great Britain, he wrote to why did you incorporate that territory when you said you're going to hold it, subject to friendly settlement dispute.

And it was a pretty difficult question to answer.

In fact, I didn't find the answer from United States Government to it.

Now, getting down -- too much for those preliminary things, now getting down to Alabama's description which I think is the crux of this case as far as we are concerned.

On page 3 -- now this little yellow brief, is our description.

He said that the States here consist of all the territory included within the foreign boundaries and then gets down to the part that we run due south to the Gulf of Mexico, thence eastwardly, including all islands within six leagues of the shore to the Perdido River.

Now, this is the (Inaudible).

This is the Alabama-Mississippi line, over here.

And over here is this Florida-Alabama line and here is your Perdido River.

From this point on, the coast over here, running from (Inaudible) over here is the Perdido River, the coast and the shore are the same.

Over here, as Mr. Justice Stewart said, what place you get your feet wet is right up here.

Now, we say that's the shore.

We have two lines drawn, I'll explain to you where they go.

We got one that shows six leagues from shore running parallel and we got one that shows six leagues from coast running parallel.

Now, the British description when King of Britain devised it and described it the first time, he described an area, six leagues from coast and said it run from the River Apalachicola in Florida to Lake Pontchartrain in Louisiana, so we are a segment of that description.

And our -- our State at this point when he asked about proof, if that thought of our chain of title, I don't know whether we need to go back, and we don't unless the Court takes care of it, if you do, I think I need to find out what they were talking about waters along that coast during 1763, as well as what might be there when we admitted to Union, because we are a segment of that description.

Now, the distance from the shore, the Petit Bois Islands and the district from the shore, the Dolphin Island which is referred the distance that you can get from shore to an island is less than three leagues.

It's 2.86 in one case and 2.87 in the other.

You will notice that all of these phase that we've had here, as I understand the rule, are less than six miles and that rule is, you measure from headland to headland, so we come around here for our shoreline, come on down and in Gulf coast here with shoreline and gone over to the mouth of the Perdido River.

Now, for our --

Justice Potter Stewart: That's one of your claims (Inaudible).

Mr. Gordon Madison: (Inaudible) what I gather that the --

Justice Potter Stewart: That's Mobile Bay, isn't it, that -- that big body of water --

Mr. Gordon Madison: That's right.

Justice Potter Stewart: -- about in the center of the --

Mr. Gordon Madison: Now we will run way up in Mobile Bay into our shoreline, because of the rule, none of our bays are -- are six -- six miles, over six miles --

Justice Potter Stewart: So you draw it from headland to headland, don't you?

Mr. Gordon Madison: Right.

Justice Potter Stewart: How -- how wide is the -- is the whole water, Gulf water of Alabama there.

It's tantamount too much, doesn't it, in mileage compared to the other Gulf states.

Mr. Gordon Madison: Well, We hadn't -- but -- but I don't believe I think what did you -- approximately 80 miles, but it doesn't come here.

Justice Potter Stewart: A big part, which is Mobile Bay?

Mr. Gordon Madison: That's correct.

Now, here's what I'd take the Government has conceded.

Now, I think they had conceded.

I don't think they were doing Alabama a favor when they conceded.

I think it was because this Court has decided beyond any question that Mississippi found with inland water and everything under it, pass to the -- in the Mississippi case which was considered.

We're talking about the same Mississippi south, passed in Mississippi on this description, and therefore, it was inland water.

And I think what he means to concede is that we're come here to the coast -- I think this is the coast line he talked about.

We're on -- right on here -- right on this Dolphin Island here, come on out here around these islands.

This is a pelican and these are not little pelicans in here, they are the West sand, and (Inaudible) are going back and going around.

I think that's what he concedes.

Anything inshore of that, he concedes the wrong.

Justice Charles E. Whittaker: Do you understand (Inaudible)?

Mr. Gordon Madison: Yes, sir.

Not only that.

I think he concedes that we asked you three geographical miles out from that line and he concedes to be the coastline.

Now, he can't get a coastline back at the Mobile Bay.

He can get one off inshore of Gulf and islands throughout taking the -- the smallest coastline that you can get.

In other words, I'm giving advantage to the Government.

I am not taking a line where I get somewhere.

I am just going here until you get water on the other side of these islands.

Now, let's get to our description.

He says it wouldn't been in a use of views, including all islands within six leagues of the shore.

Well, maybe not.

I'd say that too.

But the point he overlooks is by using that this Court has got to give some meaning to it.

If without using, we have got all the islands, then by using it what does it mean?

If all of the islands, and this is a further point away from shore, can be embraced within three leagues, then what does the extra three leagues mean when they say “In allowance within six leagues of the shore.”

What Court will do with more than three leagues?

Justice Potter Stewart: I could've been wrong of disappearing islands.

It is going to show up --

Mr. Gordon Madison: Well, I've got where would this be and they're right here.

And I've looked for hard places, shallow places under the water and I can't find it anymore.

Now, I don't have the Enabling Act in a material point set out, but there's another provision in it that I think is material.

By running that line due south here, it -- it imprinted on three Counties of Mississippi, Jackson, Greene and Wayne.

And they provided that if it did that, surveyor should finally did -- did encroach on Mississippi, then they say the line is to run in a direct line, that was one south, from a northwest corner of Washington County to a point, to a point where?

To a point on the Gulf of Mexico, 10 miles east to the mouth of the river Pascagoula.

Well, on full Mississippi Sound, as I pointed out, would call Mississippi Sound, which this Court said the first map they had was in 1866.

It was known as Pascagoula Bay.

It has never been known to the Gulf of Mexico.

So, when you go to a point on the Gulf of Mexico, I say that means you go beyond the Gulf shore where the Government said, we stop.

On the Gulf shore, it doesn't mean on the Gulf of Mexico to me.

Well, you ask the question where is that point there.

Where is that point that move the line?

Where is that point on the Gulf of Mexico?

I'd say you find it by going six leagues there, to me.

And when you do, you got a lot of boundary beyond your farthest island.

And I have one other point to make.

In this Mississippi versus Louisiana case, 201 U.S., there are a lot of maps filed in that case.

They were not disputing over the eastern boundary.

They're disputing something about the -- the right to oyster bed move on a western part.

But the lawyer to that day without any oral to becloud that thing, and anything like that, they sat down to consider where Mississippi started westwardly, the point.

And we start eastwardly from the same point.

Now, Louisiana said and later drew a map showing it, compiled from the maps which it introduced in this Court in that case, that Mississippi started westwardly from a point which is 18 miles south of these coastlines.

Well now, know you can't see this but I'm going to leave it down.

That line was put on there and if it can enter by any instruction by the nation's theory that were drawn on that by the culmination of the map 189 1991 preferred by the U.S. Coast and Geodetic Survey, the boundary line between Louisiana and Mississippi and duplication of Exhibit E in the case between Louisiana and Mississippi and known as the Number 11 original October term 1905.

And they showed that line out there where we claim it to be.

There (Inaudible) you're talking about, that Horn Island that you'll run into when you leave these islands here.

Now, I say, you didn't have an (Inaudible), you just -- you're talking about something there.

And the lawyers on that day and I only had good one, there's where they drew that line, I -- I can't get that up to you now.

What -- we -- it's being left with the march -- marshall whether you can see it, if you want to see.

And this particular map here --

Justice Hugo L. Black: Who made the map Mr. Madison?

Mr. Gordon Madison: This map?

Justice Hugo L. Black: The one here.

Mr. Gordon Madison: It's (Inaudible).

Justice Hugo L. Black: Was it made in 1905?

Mr. Gordon Madison: It's made -- it has made the -- two excerpts from the minutes of the meeting of the Louisiana Boundary Commission held in New Orleans in March 26, 1901.

So, I -- I imagine they prepared it.

Now, I have -- this is -- there are three or four extra copies of it.

I can send of here (Inaudible) for Mr. Justice to look at.

They will be left down to the marshall for anybody's consideration.

Now, I brought along because the part Mr. Justice Whittaker was talking about the Mississippi Sound is in that Gulf of Mexico.

Well, I -- that -- I don't like that.

I mean that hurts my argument.[Laughter]

I want that studies much broad, that that inland water has been so flat, and I have got map here to show this was called Pascagoula Bay in 1778, it was called Pascagoula Bay in 1823, and it was called Pascagoula Bay later.

And then this Court said the first map submitted to it, when Louisiana versus Mississippi was tried through which Mississippi Sound was called out in 1866.

Now, I submit -- well I'd just say it's simple.

The equities to this case called to give here by the same thing as they -- I don't see the reason for one State to have three marine leagues submerged lands and many others not to.

Sir?

Justice Charles E. Whittaker: (Inaudible)

Mr. Gordon Madison: Well, I have found out, Your Honor, that (Inaudible) Supreme Court and we'll get just exactly what you are saying.

There won't be an appeal from anyway.

And I think I've given you a reasonable bases here from which to give Alabama and applies to Mississippi just well three marine leagues from coast.

Now, I want to say in conclusion that -- and this has got nothing to do with it either.

Well, it -- just don't make Alabama the neglected child and the happy Gulf coast saddened.

Thank you.[Laughter]

Rebuttal of Rankin

Mr. Rankin: Mr. Justice Black and may it please the Court.

I'd just like to say one word about the argument of Alabama and that is --

Justice Hugo L. Black: (Inaudible)

Mr. Rankin: No, about their -- their case is what I mean.[Laughs]

And I don't, of course, think that it's enough to just treat them all alike.

I think that this Court has the duty and we'll exercise it to find out what the law is that is applicable and we'll try to apply it in -- as it sees fit.

I do think that there's a little more problem about this question of Mississippi Sound and the Pascagoula River under the Enabling Act than the counsel indicated, because when he -- we agree that the statute did provide for an adjustment that the surveyors found that this made an encroachment on the counties.

And it had such language.

But it seemed to me that there was a disregard of a part of the language in trying to apply it, that it's set out on the bottom of page 329 of the Government's brief.

And then in -- in ordering it, as the surveyors were directed to do, so ordered as to run in a direct line from the northwest corner of Washington County to a point on the Gulf of Mexico.

On that appeal what his argument was directed to just that far, whether this Mississippi Sound or Pasacula -- Pascagoula at that time was the same as Mississippi Sound, but it seems to me disregards the additional language that 10 miles east to the mouth of the river Pascagoula.

Now, the mouth of the river Pascagoula doesn't come out to those islands at the -- that he refers to at the end of Mississippi Sound.

The Government concedes that that is inland waters, the Court so held in Louisiana against Mississippi.

And we concede that the problem in their case is taking that as the coast and giving them three miles or three leagues.

But as far as their Enabling Act is concerned, if they're going to talk about that they're really entitled to six leagues or something like and how you measure that.

It seems to us that this island, this language deals with the point that they come to the Gulf and whether they -- whether Congress improperly called it the Gulf of Mexico, when it was going into Mississippi Sound, the inland waters, or not, they still did and you can't find that's -- that point as being outside those islands if you also come to the question of the mouth of the river.

You have to deal with it as a point inside that particular Gulf.

So, we think that their claim is not supported anymore than any other as to the six leagues that that language was used to be sure to get these islands within the United States that we had a reason of the King George Treaty and it just carried over and there could be no purpose really in using that language, if you're going to say it this goes right down six leagues in all the territories within it, because you do get.

Now, if you say that the line should be measured and come down to the Gulf and then eastwardly to the point, then you have to put those islands in, in order to get them in -- within the description.

And we think that's what was intended by Congress.

Generally, what that language is recognized as and we think that's this case.

Justice Potter Stewart: Mr. Solicitor General, I am a little mixed up from my history.

Was Alabama acquired through Louisiana Purchase or was it acquired by cession from Spain?

Mr. Rankin: This Court held that under -- in the case of Foster against Nielson, it was acquired by Purchase.

Justice Potter Stewart: By the Louisiana Purchase.

Mr. Rankin: Yes.

And if you recall there was some -- the position of the Government was when it was acquired by the Purchase and the Court said it couldn't look back at that, it was a political decision that was controlling upon the Court and that it must follow.

It couldn't make up any other political position.

Justice Potter Stewart: So it didn't come to that as part of West Florida?

Mr. Rankin: I don't see -- I certainly wouldn't say, it's contrary to the Court's decision.

Justice Potter Stewart: It did.

Mr. Rankin: I thought this Court held that's the law for me.

Justice Hugo L. Black: That the law was in effect.

Mr. Rankin: It's [Laughter attempt] I think it is.

I think whenever this Court decides, that is --

Justice Hugo L. Black: I'm talking about the West Florida decision.

Mr. Rankin: I think it's conclusive.

Justice Hugo L. Black: There it has done a part of (Inaudible)?

Mr. Rankin: The -- the Court said in the decision that if -- it didn't indicate that it would come to a different conclusion, as I recall the case, it said, “Whether or not, it would arrive at the same conclusion as the Government, if it was examining originally.

It wasn't open to it to examine originally.”

And it was bound by the decisions by the political branch of the Government.

That's Foster against Neilson.

Justice Hugo L. Black: Mr. Ervin.

Argument of Richard W. Ervin

Mr. Richard W. Ervin: Mr. Justice Black, may it please the Court.

Florida claims under the Submerged Lands Act are twofold, it claims that boundary exceeding the three-mile limit at the time the State entered, and a somewhat constitutional boundary approved by Congress prior to the Act but subsequent to State (Inaudible).

I will argue the first claim, Senator Holland will argue the second.

Well, we want to make a preliminary statement about the subject matter prior to getting into the basis of our claims.

The Truman Proclamation of 1945 declared that “Natural resources beneath the high seas contiguous to the coast of the United States within the Continental Shelf appertain to the United States and was subject to its control.”

This Court in the subsequent titled land cases, California, Louisiana and Texas held itself bound by the determinations of the political branches of the Government and international relations and recognized a three-mile national boundary which had been asserted in the nation's diplomatic correspondence.

These decisions gave efficacy to the Truman Proclamation, by also holding, the United States had paramount rights in offshore resources to the exclusion of the coastal states that dominion ownership to the extent of such paramount rights followed inferior right of regulation in territorial waters.

But the Court also said that Congress could take further action regarding the subject matter and pointed to the clause in the United States Constitution authorizing Congress to dispose the property rights of the nation without limitation.

The Court also said in the California case that it could not go contrary to an act of Congress in this area of national power.

Following the suggestion of the Court, Congress enacted Submerged Lands Act and Outer Continental Shelf Act.

These Acts carefully delineated between dominion and imperium reserving in the United States a navigational servitude in the high seas, while dividing the natural resources of subsoil and seabed of the Continental Shelf between the States and the United States.

The Submerged Lands Act gave the States in Atlantic and Pacific, a three-mile limit granted offshore resources, but treated the States bordering the Gulf of Mexico differently because of historical and special considerations.

Each Gulf State was given the natural resources beyond the three-mile limit in the Gulf to a total extent of three leagues, if its constitutional laws prior to and after statement contain their boundary out to three leagues or beyond, or that Congress had approved for a State, such an extended boundary prior to the passage of the Submerged Lands Act.

Such extended boundaries are referred to as historic boundaries.

We, therefore, contend the Submerged Lands Act meant that if the Gulf States Enabling Act original constitution or Admission Act, which operated to affect this transition from a territory to statehood, either expressly or impliedly provided for a three-league or greater boundary, that entitled it to the grant of natural resources throughout three leagues.

Texas being an independent republic had a constitutional law prior to statehood different form a territory, which nevertheless, contained a three-league boundary qualifying it to receive the grant.

However, the Solicitor General says that the political branches of the Government in asserting policy and foreign affairs has in effect, either invalidated or shortly historic boundaries of States and navigable waters in the Gulf insofar as they extended beyond the three-mile limit.

He supports this decision by referring to the tide land cases of California, Louisiana and Texas.

We do not believe those cases so held.

It is true the Court decreed that the United States had paramount rights in all the natural resources offshore.

And that the three-mile belt is in the domain of the nation as well as the ocean beyond it, but there's nothing in these cases directly dealing with the States' historic boundaries and navigable waters which were consented to by Congress and all the Constitution could not be -- could not be changed without the State -- the State's consent.

We think the States' historic boundaries and navigable waters remain unchanged and they're operated for some state domestic purposes, possibly for the venue for the state police regulations of some sort and of course as a measure for submerged lands grant.

These boundaries do not now or ever have impinged upon the delegated inferior powers of the nation in navigable waters.

That there has been some confusion concerning the States' historic boundaries as they were laid to the national boundary as admitted.

The Tentative Draft of the American Law Institute in its reinstatement of foreign relations law of the United States points out that confusion, but says, it has been resolved.

It says that using historic boundaries for measuring the grants, the Submerged Lands Act appeared to put the question on a territorial basis.

This led to the clarifying decision in Alabama against Texas.

The States -- this decision held, “There was no limitation on the part of Congress to dispose the property of the United States construed in this manner the Tentative Draft says the act does not depend on the breadth of the territorial sea plane by the United States on the international law.”

Which is to say, we submit that historic boundaries, as a measure of the grant, need not coincide with the national three-mile belt.

We think the historic boundaries are valid for some purely domestic state purposes.

Although, they may never have had any validity as a part of a national boundary, they still serve as the States boundaries for congressional domestic grants.

We think it is immaterial to a decision of this case while they have any validity in terms of international policy.

As Skiriotes against Florida, the Court said that international law is not concerned with domestic rights and duties.

Section 4 of the Act rules out the Government's contention that this three-mile national boundary operate to shrink the States' historic boundary at the moment of statehood to the limit of the national boundary, because it was imposed into the Act an extraneous standard of test, not within the context of the Act, and would produce inconsistent result with planning in historic boundary, referring to a State's particular constitutional laws, which is not to be a prejudiced or questioned.

While this first claim is based upon the act of Congress, of March the 3rd, 1845, admitting it to the Union, and upon this Constitution previously authorized by Congress and adopted in 1838 previously, these documents carried boundary descriptions covering a chain of title to Florida territory delineated from cessions of Great Britain to Spain and finally to the United States.

Florida's brief, page 64, a proclamation by King George III of Great Britain on October the 7th, 1763, officially and historically defines the boundaries of a territory of East and West Florida.

The keywords in the proclamation are that governments -- “The governments of East and West Florida were bounded by the Gulf of Mexico including all islands within six leagues of the coast.”

Our contention is that these words are historically implied in Florida Statehood Constitution by a direct reference to antecedent titles and formal sovereign owners.

Justice Hugo L. Black: May I ask you one question?

Mr. Richard W. Ervin: Yes sir.

Justice Hugo L. Black: (Inaudible) on which you --

Mr. Richard W. Ervin: It is it is different Justice Black in this.

Our boundary is described simply by referring to the cession between Spain and the United States and refers to the Floridas, which were granted in the Treaty of Amity, Settlement, and Limits of 1819.

Justice Hugo L. Black: Well you used a language that is not --

Mr. Richard W. Ervin: Sir, we have no --

Justice Hugo L. Black: -- described within six leagues.

Mr. Richard W. Ervin: Yes sir.

We used --

Justice Hugo L. Black: That language is contained in both.

Mr. Richard W. Ervin: That's -- that is -- it is similar contention.

Yes, sir, on our first claim.

Justice Hugo L. Black: That you'll decide in the point in Alabama is what you go (Inaudible).

Mr. Richard W. Ervin: Justice Black --

Justice Hugo L. Black: You are just -- that is your description.

Mr. Richard W. Ervin: That is our -- that is not our description.

We don't tie in, in so many words in that matter.

We simply to referred to the ancient -- well we referred to the treaty between Spain and the United States as our boundary.

And we say that in the chain of title or the King George III's Proclamation of 1763, which referred to the islands within six league of coast in the Gulf of Mexico or the part of the provinces that were ceded.

And in a subsequent treaty when Great Britain retroceded to Spain, it said all of the East and West Florida provinces and islands depended on said provinces.

That's the background of our history, but we have no specific description as does Alabama.

Now, here is our contention.

Justice Hugo L. Black: Where is the --

Mr. Richard W. Ervin: Sir.

Justice Hugo L. Black: Where is the Enabling Act in your brief?

Mr. Richard W. Ervin: Oh that's -- it's on page 64k sir.

Justice Hugo L. Black: Page 64.

Mr. Richard W. Ervin: Yes, sir.

Justice Hugo L. Black: Your reply brief?

Mr. Richard W. Ervin: Florida's -- yes, sir.

It -- we referred to it on page 64 in the brief itself.

We don't have a -- a copy within the appendix.

It says -- here's what its -- the Enabling Act says, “The State of Florida shall embrace the territories of East and West Florida, which by the Treaty of Amity, Settlement, and Limits, between the United States and Spain on the 22nd day of February, 1819 were ceded to the United States.”

And that -- that is also incorporated in the Florida Constitution of 1838 preceding the act of admission.

We contend that it used this keyword to describe a perimeter boundary for Florida in the Gulf, and that the Government's argument that only the islands themselves and not adjacent waters were boundaries is not (Inaudible).

Now, we rest our contention not only on the same basis that Alabama and Mississippi and Louisiana have presented, but also we think there's a case that arose in New York upon which an annotation was taken and appears 81 Corpus Juris Secundum 918.

This appears in Alabama's brief on page 4 where a state line is described to run so as to include all the islands and the body of water, such a description is not a direction to run it to exclude the intermediate waters.

That is not the full quotation, but that's suggestive.

This case -- I mean this annotation was based on the New York case of Mahler against Norwich & New York Transportation Company 35 N.Y. 352.

Justice Hugo L. Black: What page in your brief?

Mr. Richard W. Ervin: Your Honor, that is not in our brief.

It is found in Alabama's brief on page 4.

We adopted the arguments of Alabama.

And we are -- we are taking a legal position that this six leagues from coast is a perimeter boundary and it contemplates with law as determined in the New York case.

It is sufficient to satisfy the rule that all of the intervening submerged lands, we will say, belong to the coastal State, in this case, to Florida.

Now, in New York, there was this description that started at (Inaudible) and it ran around Long Island and several other main islands and all the waters in the Bay of New York.

The Solicitor General says these were all inland waters, but if you read the case, you will find that the New York court, and I think this is important to Louisiana and Alabama and Mississippi's case.

The New York stated they were the territorial waters of New York, and it appears to us, these waters fall in the special class of waters which Chancellor can't refer it to as chambers of the sea followed by distant headings.

If you take a map of this group of islands between Connecticut and Long Island, of course, being one of them, you'll find that Fishers Island lies right off the State of Connecticut, yet by the peculiar description, and it isn't therefore the Atlantic Ocean.

It is incorporated in this perimeter belt of islands that appertain to the State of New York.

Justice Hugo L. Black: Would you mind giving me the citation --

Mr. Richard W. Ervin: Yes.

Justice Hugo L. Black: -- to the New York, because --

Mr. Richard W. Ervin: Yes, sir.

It is --

Justice Hugo L. Black: -- I couldn't find it in the Alabama's brief.

Mr. Richard W. Ervin: Yes, I am sorry, sir.

It's in the -- it's in the Government's brief and it -- but it is Mahler, M-A-H-L-E-R, versus Norwich & New York Transportation Company, 35 N.Y. 352.

We -- we cite that case with the view that inland waters were not necessarily the basis of the New York decision as the Solicitor General said and instead that a description boundary covered the territorial waters in that particular situation.

That is the only case we can find on this subject.

And in addition, of course, to what was said in the case of Louisiana against Mississippi.

While the imperium of the United States on these waters is unquestioned, we do contend that the boundary lines of Florida in the Gulf headed down antiquity and reflected in Florida's pre-statehood laws are confirmed by the Submerged Lands Act to the extent of granting natural resources out to three leagues.

Now, I want to show you about Florida's specific situation.

We have a map here of the State and this red line is supposed to represent three leagues from coast.

We have the Florida keys archipelago that extends from the mainland of Florida nearly 150 miles off coast.

And we contend that when King George III proclaimed a six-league boundary, we can say a perimeter boundary including all of our -- actually he said, including all the islands within six leagues of the coast.

We think he must have had some knowledge even in 1763 of these islands of Florida's coast.

Some kind of description of a blanket in nature was needed to cover.

Anyway, we have -- those, I am sure all of you probably have been in the area and you know the thousands of islands of -- or coral islands are here in this area.

For example, there are enough island along here for the State to run a highway of 100 miles to Key West.

Now, we have developed going on all out in these islands, there are -- there are projected parkways, new highways, fields of all the kinds, and I wish you would, if -- if it has any relation to this question that this day, please bear in mind that all of the ground -- the Gulf coast of Florida, we have this developed going on.

People have bought as far as a mile out in the Gulf and are filling in at areas not prior reached, and it has to be made such, they actually which have to be developed before it is of any real value.

But back in 1763, when this boundary was proclaimed to cover these islands, the situation was this.

Parks, and this is a part of the law of Florida and Florida Keys, parks operated in these Florida straights along the Gulf coast and they needed a wider boundary.

Actually, we have been able to measure the new depth of this water along here -- here at many places, it's not over three or four feet deep.

And along in here for example, throughout the whole area, it isn't more than four thousand on the average.

And we think that it would certainly (Inaudible), if -- if we're now decreed, that everybody had to go and deal with the Federal Government so far as landfill development is concerned within its other (Inaudible).

Now, these clusters of islands all around the coast presented special problem and there was a real reason for a six-league perimeter boundary and a different, we think, consideration for Florida in that relation.

Remember please, if you will, that the Professor Sone (ph) who has briefed this matter for the Gulf coastal States, tells us that coastal states with -- with very shallow shoal area needed a wider gird in order to protect coastal ship.

Now, I am -- I am closing.

I want to say only this that it is a principle of law, it was stated many years ago, well, in 1909 by the Permanent Court of Arbitration in the Grisbådarna case, where it said, it is a settled principle of law of nation that a state of things which actually exists and it existed for a long time should be changed as little as possible.

This condition has existed of our Florida coast.

We thought we had the right to develop and then use it of all these years and we do believe that it does present a special situation.

For that reason, Florida case, we think justifies a perimeter boundary as a part of the original admission of -- of the State into the Union.

I have made a mistake of referring to page 4 from the Alabama brief.

I'd like to correct it, it's page 10.

Justice John M. Harlan: As I understand it (Inaudible).

Mr. Richard W. Ervin: Yes.

Justice John M. Harlan: (Inaudible)

Mr. Richard W. Ervin: Throughout in our history, yes sir.

Justice John M. Harlan: (Inaudible)

Mr. Richard W. Ervin: Reconstruction of Constitution, which Senator Holland --

Justice Hugo L. Black: (Inaudible) the part of it as I understand it (Inaudible).

Mr. Richard W. Ervin: That's --yes sir.

Justice Hugo L. Black: (Inaudible)

Mr. Richard W. Ervin: That's right.

Justice Hugo L. Black: That's precisely the thing as in Alabama.

Justice Potter Stewart: Now, in addition to that, you have a (Inaudible) also don't you, in connection with the rather extravagant claims with retention (Inaudible) Spain, in which he --

Mr. Richard W. Ervin: That's true --

Justice Potter Stewart: -- tried to report by various Spanish Treaties.

Mr. Richard W. Ervin: That's right, yes sir.

Those are --

Justice Potter Stewart: (Voice Overlap) extent --

Mr. Richard W. Ervin: Those are developed in our brief.

Justice Potter Stewart: Yes, but at some length, you had concededly – your argument is that – your additional argument (Inaudible)

Mr. Richard W. Ervin: That's right.

Justice Potter Stewart: -- to your argument is -- you are making an additional argument (Inaudible).

Mr. Richard W. Ervin: Yes, sir.

Justice Potter Stewart: West Florida when it came -- the Alabama --

Mr. Richard W. Ervin: I think that‘s correct.

Isn't that right.

Justice Hugo L. Black: Part of it.

Mr. Richard W. Ervin: Part of it.

Justice Hugo L. Black: The part (Inaudible)

Mr. Richard W. Ervin: Yes sir.

Yes sir.

Justice Potter Stewart: Now, the reason for my question to the Solicitor General is how -- how Alabama came to country whether it was under the Louisiana Purchase or cession with --

Mr. Richard W. Ervin: I thought it was --

Justice Potter Stewart: -- Spain was to found out whether it shared your argument --

Mr. Richard W. Ervin: Yes.

I -- I thought it's part of the (Inaudible) from Spain.

Justice John M. Harlan: What goes in boundary claims (Inaudible).

Mr. Richard W. Ervin: Yes, sir.

Justice John M. Harlan: (Inaudible)

Mr. Richard W. Ervin: I think Senator Holland is going to develop that Mr. Justice.

Argument of Spessard L. Holland

Mr. Spessard L. Holland: Mr. Justice Black, may it please the Court.

I'd like to ask the pleasure of the Court with reference to whether we should proceed.

I see we have 10 minutes to the closing time.

Justice Hugo L. Black: That would be (Inaudible) we have cases that follow.

Mr. Spessard L. Holland: May it please the Court.

I think that I should first refer very briefly to this map which I have been already adverted to by our Attorney General that the coastal province of Florida stands from its north boundary where it joins with Georgia on the Atlantic Ocean down the open Atlantic for several hundred miles, and then into the trades of Florida for -- between the 150 and 200 miles, and then back to its mainland.

Then for a distance which as I recalled it around 470 miles, prolong the west coast of Florida bordering the Gulf of Mexico.

The claims of Florida, as we think, are substantiated by the facts under the law that relates to a three-league boundary, are confined to the Gulf-frontage along the Gulf of Mexico on the mainland of Florida.

I do not comprise the frontage northward on the Gulf of Keys or southward on the straights of Florida and the Atlantic Ocean of the Keys, nor eastward on the Atlantic Ocean of the mainland of Florida.

Justice William J. Brennan: Under what -- that does in the beginning point under which you are --

Mr. Spessard L. Holland: That is Cape Sable.

Justice Potter Stewart: From that point north.

Mr. Spessard L. Holland: It's from that point north.

The --

Justice Hugo L. Black: What is the point farther to the north?

Mr. Spessard L. Holland: The point farthest to the north or west, Your Honor?

Justice Hugo L. Black: West, excuse me.

Mr. Spessard L. Holland: The point farther to west is the point that where Florida joins Alabama as the mouth of the Perdido River.

And incidentally, the two states by compact, proved by Congress, have so clarified and made certain that point of joinder that any engineer could locate it and that has been done in the efforts to clarify the property claims between the States.

Now, the Attorney General has already said that State of Florida has the two claims, one under the first string of the ball which applies to the boundary of the State when it entered the Union, which claim, as I conceive it to be, is almost identical, if not identical with the claims of Alabama and of Mississippi and is quite similar to the claims of at least part of Louisiana.

West Florida extended at one time than the Apalachicola River, which is this location here all the way across to Louisiana.

And farther north, went to even farther west extending all the way to the Mississippi River.

But Florida was subject to be shunted back and forth between Spain and England and France on particular occasions and it so happens that we lost that excellent part of West Florida now comprised in much frontage of Alabama and Mississippi and some of the area of Louisiana during the course of shuffling.

We hope that will be the last of our good state which we shall lose at anytime.

The part of the Florida case which I shall discuss as quickly as I can in the time allotted, relates to that string of the ball, which reserves where the boundary has been extended in the Gulf of Mexico beyond the three geometric miles, but not to exceed three leagues by Constitution of the State and that Constitution approved by act of Congress.

It is our claim that the Constitution of Florida was approved in 1868 by Congress and that the boundary provision which is Article 1 of that Constitution and which is being carried forward as Article 1 in the present Constitution, the Constitution of 1885, gives us three leagues off the mainland of the coast of Florida in the Gulf of Mexico.

Justice Hugo L. Black: Well that's the reason (Inaudible)

Mr. Spessard L. Holland: That was -- that was the Constitution of 1868 one was and 1885 one did not come to Congress, the 1868 one did come to Congress.

And --

Justice Hugo L. Black: Even with the other states involved, do they have a Constitution, the same Constitution.

Mr. Spessard L. Holland: All of the other states that came back to the representation in Congress and to the opportunity to function again through their local governments had to draft their constitutions and present them under the wording on requirements of the Reconstruction Act for examination and approval.

Now, those are the two words used by the Congress.

Justice Hugo L. Black: And is that what Florida is relying on in the second phase?

Mr. Spessard L. Holland: That is what Florida is relying on in the second phase.

Justice Hugo L. Black: Well Constitution of the same kind, which was approved by Congress of Louisiana and Mississippi and Alabama.

Mr. Spessard L. Holland: Constitution were approved for all of the other states, if Your Honor please.

I can't say they were of the same kind.

I am not familiar with it, but apparently, this boundary question, insofar as it affects the three leagues in the Gulf of Mexico, is peculiar to Florida.

If there'd be any other State that is affected by this question, I have not heard of it.

At the end of the war, the war between the States, sometimes called, the Civil War, the country was in great confusion.

And in spite of the fact that the State of Florida had adopted a new Constitution in 1865, the Congress required the State of Florida and all other states that were in the confederacy to frame new constitutions under the Reconstruction Act.

At the time, it was one of the great confusion in Florida, goes without question.

I think that the Court would take notice through the debates at least, that there was great confusion in Congress, because there was bitter argument of the most serious sort throughout this period.

As a matter of fact, the Reconstruction Act, as the Court well knows, was passed over the veto of the then President, President Johnson, and then the various acts supplemental thereto were passed, as I recall, over his veto and the act readmitting to representation of the States and reinstalling their civil government, so that they could begin to function, again was passed over the veto of the President.

And the Court will know and take judicial knowledge of the fact that relations between the Congress and the Executive were exceedingly strain and that the -- after that impeachment began very shortly thereafter and came as I recall within one vote of -- of success.

It was a time of bitterness and it was a time of suspicion, a natural suspicion, on the part of Congress, which did not include Senators and House and Representatives from the South in looking after the reorganizations of governments that were tempted by the southern states.

Now, I say that without any bitterness at all, it was very natural that such a situation should exist.

Justice Felix Frankfurter: Your point is that the -- that the Constitution that was presented for re-representation would have been kept and scrutinized, is that your point?

Mr. Spessard L. Holland: It certainly would.

That's the first point I was going to make and Your Honor has gone ahead of me and I appreciate he's mentioning it, that if any constitution -- that every constitution that came up at that time was bound to be very closely and carefully scrutinized, because of the bitterness that existed, and that the well-founded suspicion because of the certain things that has -- that has happened towards the good faith with those who were seeking so hard to reorganize their States.

And I think it unnecessary to remind this Honorable Court that those who had seats in the constitutional conventions were very frequently not long time established citizens of the State, because by the times of the Reconstruction Act, many of them were disqualified from either voting or accepting a -- a representation as a delegate or holding office of any kind at that time.

So that the whole situation was one which was very scrambled and very confused, if it please the Court, I'm just getting started.

I see that the time has -- has come for --

Justice Hugo L. Black: We'd be glad to hear you in the morning.

Mr. Spessard L. Holland: Thank you very much.

You're very kind.

Print this transcript Transcript: 

Argument of Spessard L. Holland

Chief Justice Earl Warren: Number 10, Original, United States of America, Plaintiff, versus States of Louisiana, Texas, Mississippi, Alabama and Florida.

Justice Hugo L. Black: Mr. Holland.

Mr. Spessard L. Holland: Mr. Justice Black and may it please the Court.

In my brief argument of yesterday, I've gotten to the point where I covered that part of the record showing that a convention was held at Tallahassee pursuant to the Reconstruction Act.

Beginning in January of 1868 ending with the signature of a new Constitution on February 25th which then was submitted to the people who adopted it in an election on May 4th, 5th and, 6th whereupon the new Constitution was certified to the President on May 27th.

The action of Congress was June 25th, 1868 by which the new Constitution of Florida along with the new Constitutions of the five other Act -- States covered in that Act were acted upon by Congress, and as we contend, were approved by Congress.

It's admitted by the Government that Article 1, the boundary article of that constitution, covered the submerged lands off of the mainland of the West Coast to Florida extending into the Gulf, a distance of three marine leagues, and there's no argument there.

The argument is as to whether Congress approved that part of the Constitution.

Now, Mr. President -- Mr. Justice Black, it seems to me that it's appropriate to go to the facts insofar as they're disclosed by the record and I shall attempt to do so briefly in the time that is allowed to me.

The President furnished to Congress on its request the two documents, miscellaneous document 114 and miscellaneous document 297 of the Second Session of the 48th Congress.

First of those covered simply the Convention Constitution, the one that was actually adopted.

The other, at the special request of the Congress, covered all three of the Constitutions which were considered by the Convention.

And one of which incidentally, was claimed by the Chairman of the Rock Convention which met briefly in Tallahassee following the departure of the majority.

It was claimed by that Convention to have been adopted, though that particular aversion was not submitted to the people.

Justice Felix Frankfurter: May I trouble you for the number of the second one Senator Holland?

Mr. Spessard L. Holland: Number 297.

Justice Felix Frankfurter: Thank you very much.

Mr. Spessard L. Holland: The interesting fact about those three different constitutions, one of which was adopted, the other two of which were not, is that all of them had an Article 1, boundary article.

All of them showed the same desire of the framers of the Convention and the people of Florida to extend their boundaries but all of them had a different -- each of them had a different provision from the others relative to the distance in the Gulf of Mexico off the mainland of Florida, showing rather conclusive to the Congress when that document was furnished that here had been a matter of real controversy in the constitutional convention.

Justice John M. Harlan: Where do we find those documents?

Mr. Spessard L. Holland: They're found on Florida briefs at the pages 18 to 27 and I had not intended to go into them in detail because of the limit of time and because I am sure the Court has considered and will continue to consider this fact.

But I wanted to call attention to the fact that any argument that the Congress did not understand that the boundary represented a change and that the boundary had been a matter of very great controversy in the Convention is clearly set aside when we consider these three different versions, which were submitted by the President of the United States in a congressional document considered by the members of both Houses in their hands and on their desks when this debate took place.

Justice John M. Harlan: Does any of those drafts include the original six-league claims?

Mr. Spessard L. Holland: No.

The one draft that followed the Constitution of 1865 which I referred to you yesterday and uncovered islands within five leagues, another covered a limit at five leagues, and the one submitted and ratified by the people covered a limit at three leagues.

And I think that's important not to only showing the controversial nature of this subject in such a way that -- I am advised by my assistant that that reference should have been to the appendix of the Florida brief rather than to the principal portion, pages 18, 27 of the appendix of the Florida brief.

I think that it's important not only to show that the Congress was bound to know about this controversy, bound to know about the difference of opinion on the boundary provisions and the desire of the Convention to claim what it could properly.

But I think it's also extremely important because the -- the method of delineating that boundary which was chosen by the Convention and which was submitted to the people and ratified by the people and then submitted to Congress and passed upon there, is the limit three leagues which had already been enacted into the foreign policy of our nation in the Texas matter, because it's so evident that somebody there must have known about that situation and the Treaty of Guadalupe Hidalgo.

This is only an argument on the conclusion.

I have already stated to the Court that the records except as to the journal of the Convention are a very sketchy and I think the confusion at those times easily explains that situation.

So that how could Congress have missed the fact that here was a three-league boundary being submitted after controversy and here was a boundary of which comported where the Act of United States has ratified already by the Senate of the United States in approving the Treaty of Guadalupe Hidalgo because it's quite evident that there were persons there who wanted to go farther than the three-league limit.

Incidentally, Mr. Seward, the Secretary of State who had had some thought in the border -- in the boundary controversy prior to that time, was the Secretary of State at this time, was seating right here as adviser to the President and to the Congress and that there was no evidence of any objection from his part, nor for that matter is there any evidence or any objection on the part of any member of either the House or the Senate.

Now, we all know that Congress and particularly that Congress well knew the importance of boundaries.

This same Congress on March 1, 1867, had admitted Nebraska to statehood.

This same Congress is bound to have known the constitutional provision in Article 4, Paragraph (3), providing for the admission of new states and prohibiting the inclusion of parts of any other States without the consent of those States.

We wonder, Mr. Justice and Your Honor -- Your Honors, whether Congress can be held to have been unconcerned at this stage about the possibility of conflicting boundaries, because they well knew that they were admitting to a representation and were acting upon the constitutions of six States, five of which were contiguous one to the other, and all of which were contagious to other States which were in the same situation that is operating under the Reconstruction Act.

And they must have well known that the boundary question was one of the important and it's impossible for me to conceive that they, with the recent recollection of the admission of Nebraska and with full knowledge that in Enabling Act, admitting states, the principal part, as a matter of fact, except the little brief formula for the admission, is the delineation of the boundary of the States.

Justice John M. Harlan: Mr. Holland, am I wrong -- excuse me --

Justice Hugo L. Black: I just thought to ask you --

Mr. Spessard L. Holland: Mr. Justice.

Justice Hugo L. Black: Did the other --

Mr. Spessard L. Holland: -- Black.

Justice Hugo L. Black: -- state constitutions submitted to Congress would mean the boundaries?

Mr. Spessard L. Holland: I'm unable to answer that question because I haven't examined their constitutions sufficiently.

Justice John M. Harlan: My question is on the basis -- am wrong in thinking that it is important to your argument to show that at the time prior to readmission, the State of Florida had more than a three-mile boundary since otherwise if it did not -- the effect of the Act of Readmission would have been to increase the boundary of Florida on readmission.

Mr. Spessard L. Holland: It's certainly true that the State of Florida had the claim under prior acts in ancient history about which the Court has heard to a six-league boundary.

Justice John M. Harlan: That depends on the island including the island phraseology.

Mr. Spessard L. Holland: That's correct and also from the fact that in the Treaty of 1819 and in the conveyance of the two territories of Florida to United States, the words, while referring to the earlier history and identifying it so that it could be pursued, also spoke of the two territories being included in the State and the adjacent islands which were administered.

I don't believe that's the exact word but that's the substance in connection therewith.

Mr. --

Justice Charles E. Whittaker: The words I think was dependent once of that territory.

Mr. Spessard L. Holland: Depend of the form I think -- I think, Mr. Justice.

Now --

Justice Potter Stewart: Well, is it necessary to your argument Senator to a show us that the boundaries, prior to the 1868 Constitution, were at least as extensive as contained in -- in that Constitution?

Mr. Spessard L. Holland: I don't think it is because I think that the State by its Act and the Congress by its Act were the two bodies who had the full authority to set the boundary at this time.

Justice Potter Stewart: And the words mean --

Mr. Spessard L. Holland: And I think it's immaterial as to whether the boundary was receded at that time or was a -- jotted out in accordance with whatever the interpolation of the law in that situation would be.

Certainly, the State thought that it had six leagues at that time.

Justice Potter Stewart: But you wanted -- what is necessary as for you to show that these boundaries were approved by the Congress?

Mr. Spessard L. Holland: That's correct.

Justice Felix Frankfurter: The constitutions while they were submitted was in response to the Act of March 2nd, 1967 calling for such submission --

Mr. Spessard L. Holland: The --

Justice Felix Frankfurter: -- other -- other constitutions of the States as it weren't suspended as part of your --

Mr. Spessard L. Holland: Mr. Justice Frankfurter, you're exactly correct.

The moving party in this matter was the Congress of the United States and the meeting of the constitutional convention which I've already said, followed a similar one in 1865 in which the State had tried to adjust itself to its new situation was held upon the mandate of Congress.

Justice Felix Frankfurter: The phrase of the Act was, for instance, constitution shall have been submitted to Congress for examination and approval and Congress shall have approved them.

Mr. Spessard L. Holland: Mr. Justice Frankfurter --

Justice Felix Frankfurter: Or if the document, would you say constitute such formal approval?

Mr. Spessard L. Holland: The Justice is exactly correct in his -- in his statement and I want to mention at this time a fact that seems to have been overlooked by learned Government counsel.

And that the -- the Act also require -- provides in an earlier portion of it, that the new constitution must be “in conformity with the Constitution of the United States in all respects.”

So there is more involved here than a mere question of Republican form of government and there's more involved here than a mere question of loyalty as suggested by learning counsel.

Justice Felix Frankfurter: Well, but --

Mr. Spessard L. Holland: But there is a general question and there is a general requirement not only of submission for examination and approval but then a requirement of actual approval of that new constitution.

Justice Felix Frankfurter: Does the Constitution call for a particular boundary or particular claim by States that either seek submission or as in the case of the seven states that sought of pre-representation.

Mr. Spessard L. Holland: The Constitution --

Justice Felix Frankfurter: What's the relevance of that thing to what you called before?

Mr. Spessard L. Holland: The Constitution insofar as the admission of new States requires that they may not be permitted to be carved out of another State or to take any part of another State without the approval of that State and thus therefore require the careful examination and approval of Congress with -- within the meaning of that rule and requirement.

Justice Felix Frankfurter: Well, I suppose -- I suppose Florida, in seeking again their representations to Congress, couldn't constitutionally submit a constitution, which is required for being submitted and take a portion of another -- a portion of another State, could it?

Mr. Spessard L. Holland: I think you're completely right and that brings me to my next point which will require me to go out of this record but into other matters of which the Court may take judicial notice.

Justice William J. Brennan: Excuse me Senator, before you go on to that.

In the gulf could there been any other State competing for the boundary claim by -- barred in the Constitution?

Mr. Spessard L. Holland: There has not.

Justice William J. Brennan: Could there have been at that time because even -- even if --

Mr. Spessard L. Holland: There --

Justice William J. Brennan: -- and we were enlarged from what it had been even on that premise, would this have taken anything from any other State?

Mr. Spessard L. Holland: There might have been on the border with Alabama but there is no such claim and there was no such fact.

The real fact is though, that because a lab had existed for many years and was still existing at that time, and I will quote, I will cite the Supreme Court case in which that is well referred to.

It's U.S. 123, page 1, the case Coffee against Groover which outlines the -- and that's a case in 1872, I believer, outlines that the fact that boundary dispute which had affected the 2000 square miles of Florida's boundary had existed before the purchase of the Floridas.

It was first in argument between the United States for Georgia and to the Spanish Government.

And second, then an argument between Georgia and the United States for the territory of Florida and then finally, an argument between the two States which found itself coming into the Supreme Court.

The case would be found 11 Howard, 293.

And the much more full discussion of the case is found in U.S. Report 58 at page 478, when the Attorney General of the United States has sought intervention and was allowed intervention for certain purposes.

Those pages, 478 to 524 show an exhausted discussion of the subject.

I am sure that here is a subject matter that was first in international dispute, then in dispute between Georgia and the territory of Florida, and then in dispute between the States leading to the filing of a suit in this very Court and to the long argument of it and to the writing of that opinion in the case that I have just mentioned, U.S Reports 58 at page 478.

Justice Felix Frankfurter: Senator Holland, I didn't mean to mislead you by suggesting, by implying that boundaries submitted by Florida, if the claim of Florida were to be sustained, would have involved taking something that belonged to another State which constitutionally couldn't be done.

What I meant to suggest is that since other portions of the boundary of Florida, not relating to our problems, might have done that.

Presumably, when the constitution was submitted with boundaries, it's a little difficult to say that Congress paid no attention to boundaries that the boundaries were irrelevant to the action which it took in accepting the submission.

Mr. Spessard L. Holland: I think that position is completely reasonable and I think that any other position would be completely unreasonable, because here with knowledge of Congress -- because it would have there on two occasions long historical documents printed on this subject.

I'll give the references to them, documents 77 of the House of Representatives of the 23rd Congress, 1st Session.

Justice William J. Brennan: Are these in the brief, Senator?

Mr. Spessard L. Holland: They're not, and that's the reason that I am giving --

Justice Hugo L. Black: What -- what number is that document?

Mr. Spessard L. Holland: Document 77 and --

Justice Hugo L. Black: Which Congress?

Mr. Spessard L. Holland: Of the 23rd Congress, 1st Session, and then -- that was in 1831.

Justice Hugo L. Black: What is it that related to?

Mr. Spessard L. Holland: That related to the contents between the territory of Florida and the State of Georgia which was going on at that time.

And it's a very compendious document of 120 pages.

And the second document, a much longer one, is miscellaneous document 25 of the Senate of the 33rd Congress, 2nd Session, 1855.

This was reprinted, and it's a document of 396 pages.

Justice Felix Frankfurter: What's that about?

Justice William O. Douglas: What Congress --

Mr. Spessard L. Holland: That's about the same controversy.

Justice William O. Douglas: What Congress was that?

Mr. Spessard L. Holland: That was the 33rd Congress and --

Justice William O. Douglas: (Inaudible)

Mr. Spessard L. Holland: It's the whole document, if Your Honor please.

Justice William O. Douglas: Document 25.

Mr. Spessard L. Holland: Document 25 of the 33rd Congress.

That's the Senate document and the other the House one.

And I -- I -- I am going into some details to give this information, because I do want this Court to see at least as I see it that here was a controversy then pending in the United States Supreme Court in which not only the two States were joined in combat but in which the Attorney General of the United States had asked to come in because certain federal public lands had been deeded and were still held and there was an important federal question involved there.

That is in the 2000 --

Justice William J. Brennan: Could you point on the map where the location of the area in dispute at that time?

Mr. Spessard L. Holland: The location of the area in dispute ran from this point which is the confluence of the Flint and Chattahoochee rivers that form the Apalachicola to this point.

And the Court will observe that that is an straight line in the sense that it's far -- it's the straight but it doesn't follow a degree of latitude.

And it runs from that confluence to the head of St. Mary's River.

The State of Georgia claimed that the head of the St. Mary's River was the ahead of South Fork of the St. Mary's River which headed up, and that's not shown on this map, but it heads up in about this position.

So that the payment was involved was (Inaudible) by comprising 2000 square miles of what was then thought to be the most valuable land in the State of Florida, because little value it had at that time had been assigned to the lower part of the peninsula.

And the fight was a very bitter one.

The case which I have cited, U.S. 123 page 1, gives the history likewise and shows that the State of Florida and the State of Georgia out of Court reached a settlement which the State of Florida accepted in 1861 and which the State of Georgia accepted in 1866.

So that we're right in the middle of this controversy at the very time of the war and at the very time that these troublesome questions came up.

Justice William J. Brennan: They are now then in the submitted constitution, this course from that strait to the head of the St. Mary's River?

Mr. Spessard L. Holland: That's correct.

Justice William J. Brennan: That reflects the settlement then, does it?

Mr. Spessard L. Holland: That's -- that's correct.

And they -- there -- there's just no probability or even possibility as I see it that the Congress, well knowing this situation, and the Attorney General, well knowing the situation, and the two States while not represented certainly having representatives to speak for them here in the capital of the nation, would have left unnoticed any departure from an accurate delineation of that boundary.

And it's certainly impossible to believe that the Congress gave no attention to that boundary under those conditions.

Justice Hugo L. Black: Is any mean a part of that involved (Inaudible)?

Mr. Spessard L. Holland: None at all, but the if the Congress looked at the boundary articles, they were looking at the entire article which covers both the land and the water boundaries.

And incidentally, the same disparity which exists among the three constitutions as to the water boundary and the gulf does not exist here.

Justice Potter Stewart: Senator Holland, did this controversy or any controversy occur after 1868 between Florida and Georgia as to territory?

Mr. Spessard L. Holland: After 1868?

Justice Potter Stewart: Yes.

Mr. Spessard L. Holland: No, the --

Justice Potter Stewart: So is settled for anything.

Mr. Spessard L. Holland: The State Georgia accepted, was the last party to accept in 1866 and the Congress approved it in 1872.

But the two States -- and it took the -- it took the approval of Congress ultimately because --

Justice Potter Stewart: And it took, and -- and that -- what Congress approved was this very boundary contained in the 1868?

Mr. Spessard L. Holland: Congress approved, but I wouldn't want to give the impression that it approved the whole article --

Justice Potter Stewart: No.

Mr. Spessard L. Holland: -- boundary but approved this particular part of the boundary in 1872 after this time, because it was involved in the combat between --

Justice Potter Stewart: Between the two States.

Mr. Spessard L. Holland: -- the States of Florida and Georgia.

And the Court will see upon examination of the two documents that the matter came to Congress repeatedly and that repeated resolutions were introduced and some passed seeking to dispose of this troublesome question.

Now, I do not like to indulge in semantics and I don't think I am in calling attention to the fact that the action of Congress was mentioned many times during the debate by members of the Congress as being action to approve or an approval, and as following the -- the mandate of the Reconstruction Act which required approval.

I won't exhaust that point but it would be found on pages 63 to 72 of the Florida brief.

Likewise, there were several contemporary or early interpretative statements.

This didn't affect only the boundary question, this affected the question of the State to begin to function, take over its election machinery, even the right of legislations to begin to pass acts, the right of the Governor to be something more than a provisional Governor.

And those questions came up in several instances before the military and Attorney General Hoar of the United States at that time, on August 28, 1869, addressed the Secretary of War with a long letter submitted in compliance with his request of which -- in which this quotation is found.

“Until Congress should have approved the Constitution, the legislature could not pass any act.”

And he held that the Congress did approve the Constitution.

Justice Hugo L. Black: Was there a discussion in the Congress on the Submerged Land Act?

Mr. Spessard L. Holland: There was none.

Justice Hugo L. Black: To this particular clause of that bill of the Congress.

Mr. Spessard L. Holland: There was no discussion and --

Justice Hugo L. Black: To this clause in the bill which refer to boundary that have been approved by Congress.

Mr. Spessard L. Holland: Well, there was no discussion of the submerged lands question in the Congress which we think makes a stronger case for the fact that nobody --

Justice William J. Brennan: I don't think that's --

Mr. Spessard L. Holland: -- objected to.

Justice William J. Brennan: -- the question Senator.

Justice Hugo L. Black: No, no, no.

Justice William J. Brennan: It's whether at the time on the discussion of the Submerged Land Act in 1953.

This is what the discussion and what approval meant in relation to the approval of the Constitution.

Mr. Spessard L. Holland: -- frequent discussion and that point was made abundantly clear many times that the Congress felt or at least those members of Congress asserting that position of which they were many that approval had been had at that time.

And it wasn't deniable gesture to put into this bill the two conditions; one, the boundaries at the time of statehood and the other, the boundaries in the Constitution heretofore approved by Congress.

Justice Felix Frankfurter: What do you do --

Mr. Spessard L. Holland: It -- It was shown many time in the debate that Congress understood that that latter provision pertain to this 1868 matter.

Justice Felix Frankfurter: May I ask you, what -- what comment do you make to the Government's argument that the Act of 1867 contemplated the boundaries that theretofore existed in view of the debates that's in opinion indulged in striking out the so called that it would be unnecessary to (Inaudible)?

Mr. Spessard L. Holland: Well, I believe that that debate was in the later time but what -- regardless of when it was, if the Congress so intended, it was certainly their duty to look to see whether the task done by the Constitutional Conventions carried out that obligation.

I do not think however that that obligation was imposed by that debate at that particular time.

Now, there were later reference in the Court cases, and I am sorry I have to rush along, but in three instances, the -- this Court referred to this action of 1868 always it was obiter, Wilkes County Commissioner against Coler, a 1901 case by Mr. Justice Harlan and he said that “The constitution” - at that time it was the Constitution of North Carolina - “was approved by the Congress, June 25, 1868.”

In the case of Beauharnais and so forth, 343 U.S., taking place just a few years ago 1942, I believe it was, Mr. Justice Jackson quoted this act and the action of Congress in these words "that these constitutions" were nevertheless approved by Congress.

And in the case White against Hart 80 U.S 649 in 1872 cited by opposing counsel.

We think that case is much more strongly in favor of our position because he says in his -- in his opinion, Mr. Justice Williams says that the this constitution was sanctioned by Congress and upon looking at the meaning of that word, we find that is at least as strong as the meaning of the word approved.

Now --

Justice Hugo L. Black: May I ask you, so far as the boundary described referred to the Perdido River?

Mr. Spessard L. Holland: Yes, sir.

Justice Hugo L. Black: I have before me the Constitution of Alabama approved by the -- the same Act so far as described.

And this refers at the beginning of Perdido River (Inaudible) including all islands within six leagues to shore.

That was approved at the same time, wasn't it?

Do you know whether the two -- either one of the two was struck by Congress.

Mr. Spessard L. Holland: I don't believe either was and incidentally confusion later arose as to the two descriptions because of the erosion at the mouth of Perdido River.

So, the two States set up a commission which worked out that boundary and submitted it to Congress and Congress approved the -- the Compact, as I think I mentioned --

Justice William J. Brennan: What year was that Senator?

Mr. Spessard L. Holland: That was quite recently, I think four or five years ago.

I am sorry I don't have the exact year.

We can supply that.

Justice William J. Brennan: So that's -- that's quite recently.

Mr. Spessard L. Holland: Well now, I say that I have very little time left.

I want to call attention to --

Justice Hugo L. Black: Your time is up but you go right ahead for a short time.

Mr. Spessard L. Holland: Well, I'll make it just as short as I can and I appreciate the indulgence --

Justice Hugo L. Black: It's all right.

Mr. Spessard L. Holland: -- of Mr. Justice Black.

I hope it has the approval of the Court.

Maybe I am used to talking in greater length in the forum that I belong to but I'll try to comport myself in accordance with the --

Justice William J. Brennan: And as far as the yield -- as the yield of the questions (Inaudible).

Mr. Spessard L. Holland: Well, I am supposed to yield whenever any distinguished member of this Court requests me to do so.[Laughter]

Justice Felix Frankfurter: Any how you --

Mr. Spessard L. Holland: I don't have the right of refusal that I would have elsewhere.

Justice Felix Frankfurter: But you haven't thought that.[Laughter]

Mr. Spessard L. Holland: My next point.

I want to make it only briefly is that Florida proceeded to assume jurisdiction and make use of this Submerged Land in the gulf and there's many, many indications of that not only in our statutes to which I shall not refer, but particularly to references in three federal cases.

All appearing in the briefs, the case of Cunningham against Skiriotes at page 53 of the Florida brief, the case of Pope against Blanton which was a three-judge federal court, in the District Court of Florida and the case of Skiriotes against Florida in this Court where the opinion written by Mr. Chief Justice Hughes mentions the controversy but found the easier ground to decide it than to -- at that time and upon the evidence then submitted, decide where the boundary laid.

And all of those cases though show affirmative that the State of Florida in the exercise of its own jurisdiction and sovereignty, they had statutes applying out to the three-league line and these cases all arose outside of the three-mile line and between at the time the three-league line as shown in the decision.

And that purpose for that particular jurisdiction shown in those three cases was the regulation of the sponge industry which is an important industry of the West Coast of Florida.

I shall not labor that point but all this cases showed clearly that Florida exercised the jurisdiction and used it and claimed it.

Now, when it came to this case and I again will have to proceed more rapidly than I have expected.

The Congress proceeded very carefully.

It heard the testimony of the three federal executives who are most involved in this except the President and they received a letter from him, which has already been mentioned by another in the argument.

But Mr. Secretary McKay of the Interior Department testified his testimony of page 30 of Florida brief.

Mr. Attorney General Brownell at page 957 of the Senate Hearings and in the Texas brief also, both of them affirmatively stating that as to the case of Florida, their boundary was out three leagues in the gulf off of the mainland coast.

And then we call the Department of State -- the Senate called the Department of State and Mr. Tate, Assistant Solicitor but testifying for the department, testified to a great caution and his testimony will be found in the Senate Hearings.

But I'll refer to three places, page 1053, page 1078, page 1086 because I cannot at this time read those.

But the substance of it was, first, that he recognized the fact that in the case of Florida and one other state, Texas, there was precedent for the carrying out of the boundaries to three miles.

And he also testified, and this is the matter which I want to call especially to the attention of the Court that in this troublous case that confronted him, it could by settled without trespassing upon the foreign policy of the United States by having the Act refer only to the development and production of the seabed and not to the extension of the territorial waters out there.

Furthermore, in the -- the --

Justice Potter Stewart: Mr. Tate did not address himself of course to the precise language of the bill, he has enacted it.

Mr. Spessard L. Holland: No.

But he showed the knowledge of it, stated that Florida and Texas were the two exceptions and in his testimony said in so many words that here was a case in which Congress could find the solution which had no disrupting effect whatever on the foreign policy.

That's the point that I want to make.

And the letter from Mr. Secretary Dulles signed for him by Assistant Secretary Morton makes that same point.

And in pursuance of that point, as the records here will show, the Senate Committee proceeded to amend the Act so as to make it in the alternative so that very clearly, it would cover only, might be construed to cover only the assignment of the rights of development in the seabed.

The letter from Mr. Dulles is found on page 1088 on the -- in the record of the hearings of the Senate and -- Senate or House -- Senate.

And I'll just read this last sentence because it's so meaningful.

“Hence, a grant of jurisdictional powers of the state in order to be consistent with the traditional position of this nation would have to be restricted to the purposes indicated above.”

Those purposes as the Court will find were the purposes of operation of the submerged lands.

And incidentally, the Committee immediately met -- immediately met that situation by producing from the bill which had been filed as drafted by 44 Attorneys General producing various changes and amendments which may -- would make it clear that this Act could be construed as I've indicated.

The Court will find on page 5 of the Senate report, the sentence which makes that clear.

The measure also provides that in addition to title and ownership but distinct from them, the States shall have the right and power to manage or administer, at least develop and use such lands and natural resources in accordance at the time of the Senate Joint Resolution 13.

And whatever rights the federal government may have in such management and administration or established in and assign to the States.

Justice Hugo L. Black: I am afraid Senator, your time has expired up and --

Mr. Spessard L. Holland: Well, I think --

Justice Hugo L. Black: Could you stop there?

Mr. Spessard L. Holland: May I -- may I trespass only in this regard.

I would like to give the numbers of the Amendments if the Court will indulge it --

Justice Hugo L. Black: Yes.

Mr. Spessard L. Holland: -- which carry out that same objective and they are Amendments -- numbers 28, 29, 30, 31, 32, and 33, all appearing on page 19 of the report and Amendments 69 and 72 appearing on page 20 of the report.

There isn't any doubt about that action having been taken.

Justice John M. Harlan: You can ask your associates the dictation numbers of the records of (Inaudible)

Mr. Spessard L. Holland: On page 1088 of the Submerged Land Act Hearings.

One more statement and I am through.

This effort in the Congress was a serious effort to compose serious differences.

In connection with this bill, we produced also the Outer Continental Shelf Bill and we recognized federal rights and the area covered by that to about nine-tenths of the submerged lands within the continental shelf and to about five-sixths of the estimated oil and gas to be found in the submerged land.

Our effort was -- or the effort of Congress, and as shown clearly by the records, was a very careful one after the submission of all the statements from everyone in government or out of government that were felt to have an interest in this matter and I -- and I expressly hope that it will meet with the approval of the Court in this latest case as it has already with reference to the three-mile limitation, because we think that is greatly to the interest of the nation and of each State involved to have the matter settled so that the development of any resources that maybe there may go forward in an uninterrupted fashion.

I thank the Court for its indulgence.

Justice Hugo L. Black: Mr. Swarth.

Argument of George S. Swarth

Mr. George S. Swarth: Mr. Justice Black, may it please the Court.

Yesterday, Attorney General Ervin referred to statement by the American Law Institute to the effect that this Act does not depend on the breadth of the territorial sea.

In connection with that, I would like to compare what Senator Daniel told the Senate Committee when he was discussing the Act.

He said, "There is no question but that the Holland Bill simply gives to the States the lands within their original boundaries within their territorial waters at the time they entered the Union".

You'll find that quoted on page 24 of the Government's reply brief.

It is our medium-sized brief.

Justice John M. Harlan: Do you say that embraces the concept of shrinkage (Inaudible)?

Mr. George S. Swarth: Well, I think this shows that the boundaries referred to in the Act are the boundaries of territorial waters.

I don't think that directly gets to the question of shrinkage but rather the kind of boundary we're talking about.

Senator Daniel said explicitly with the territorial water boundary and I think the Act having been represented in that light to Congress, it's hardly open to the States now to say that it mean something other than territorial waters.

Justice Hugo L. Black: Well, it could then possibly be correct so far as the second clause is concerned relating to or -- which has been approved by Congress.

Mr. George S. Swarth: No, I think not.

He says within their territorial waters at the time they entered the Union.

Justice Hugo L. Black: If that one State enter the bill --

Mr. George S. Swarth: Yes.

Justice Hugo L. Black: -- but has two, there is an alternative, is there not?

Mr. George S. Swarth: Yes.

Justice Hugo L. Black: Yes.

Mr. George S. Swarth: Well, I -- I think of course Senator Daniel was concerned with the Texas aspect of it and I think for that reason, he was concentrating on the time they entered the Union.

But the kind of boundary that is involved whether it is a territorial water boundary or whether it is some other kind of a boundary altogether, I think must be the same whether it existed when it entered the Union or was subsequently approved by the Congress.

There was no indication that Congress was thinking of a different kind of a boundary of -- in the one case and in the other.

Justice Hugo L. Black: Well, I suppose in reference to that clause, the question is more likely this, whether since the State has been admitted into the Union.

Congress has approved the boundary, which went out beyond the three-mile limit.

Mr. George S. Swarth: Yes.

Yes, but I think that means a territorial water boundary, not -- not a special boundary of some other sort as has been suggested to pay a --

Justice Hugo L. Black: Do you mean you think it means limitation that Congress couldn't have approved it over three miles?

Mr. George S. Swarth: No.

I mean I think it is the kind of a boundary that they were speaking of -- of -- if it was three miles or if it was more than three miles, of course we don't think it could have been.

But in any case, we think they were speaking of a boundary of territorial waters.

Justice Hugo L. Black: But if it was approved, if Congress -- if it could be shown, and let's say it could, indicated one way or the other.

I am just trying to get your position of what you said there to show that.

Suppose Congress had expressly approved a constitution which said that we now claim more than three miles out, we claim six to nine miles and that has been done in 1850, 1890, and 1910, would that come within the Act?

Mr. George S. Swarth: Oh, yes.

Yes indeed.

Justice Hugo L. Black: So it's a question of whether it has been -- whether Congress has approved it since.

Mr. George S. Swarth: Yes, exactly.

One more comment on this American Law Institute statement.

We questioned the reporter of the institute about it and he replied that his purpose had been to indicate that the division of these submerged lands could be made without affecting the question of international boundary, the three mile limit, which of course it could be done.

And he said it was not intended to express an opinion as to what Congress had done with respect -- what Congress had done with respect to any particular Gulf State in passing the Submerged Lands Act of 1953, if the comment gives any different impression as the result of an inadvertence.

It will be corrected in the next draft.

Justice Felix Frankfurter: Well, the inadvertence was not -- he put in words, but he didn't mean to put in.

Inadvertence was, as you thought, was a misconstruction of what he wrote, isn't that right?

Mr. George S. Swarth: That is correct.

He had not intended to construe what the Act actually did but was speaking rather of what Congress could do.

Justice Felix Frankfurter: He didn't mean to write what he wrote.

It doesn't mean that could be used in the way in which you say it should be.

Mr. George S. Swarth: That is correct.

Now, coming to the particular problems of Florida as was observed yesterday.

Florida has two strings to its bow; it's the only State does.

The reason for that is that in the other States, there was no other instance where a different boundary description appeared in a reconstruction constitution from the description that had existed when the State became the member of the Union.

So that the -- the 18 --

Justice John M. Harlan: Were there description to the character in the other State Constitutions?

Mr. George S. Swarth: There were in some and not in others.

Question was asked -- Mr. Justice Black asked whether other constitutions approved or dealt with by the Act of June 25, 1868 contained boundary descriptions.

The Constitutions of South Carolina, Louisiana and Georgia did not.

The Constitution of Florida did and I believe --

Justice Hugo L. Black: Which other ones did?

Mr. George S. Swarth: I believe North Carolina and Alabama were also covered by that Act.

Justice Hugo L. Black: Alabama (Inaudible) in its constitution from the one that I (Inaudible).

Mr. George S. Swarth: I am not -- I accept your statement on that.

Justice Hugo L. Black: (Inaudible)

Mr. George S. Swarth: But there were constitutions which did not contain.

Justice Hugo L. Black: Are you drawing a distinction between Florida's rights and opinion it had under its Reconstruction Constitution and Alabama's rights, if it doesn't?

Mr. George S. Swarth: No.

I am not Mr. Justice Black.

Now, Florida's -- the first phase of the first string to Florida's bow is that Spain had made extended claims of maritime boundary.

And to establish that, they referred to a variety of -- of treaties and arrangements of one sort and another which established quite a variety of distances for different purposes and then different parts of the world, some relating to Spanish coasts, some relating to foreign coasts.

We think that no consistent pattern -- quite evident, no consistent pattern appears from those.

You have distances of three leagues, two leagues, sight -- sight ten leagues.

Justice Potter Stewart: S-I-G-H-T?

Mr. George S. Swarth: Yes.

Justice Hugo L. Black: Are those gulfs?

Mr. George S. Swarth: No.

These are all over the world.

One was fishing within -- there is to be no fish -- no Spanish fishing within three leagues of British coasts in the Gulf of St. Lawrence, one forbad boats under 100 tons displacement to carry contraband within two leagues of Spanish ports.

Justice Hugo L. Black: Were there likelihood in the descriptions of the entrances on the gulf coast?

Mr. George S. Swarth: None of these related to the gulf coast.

Justice Hugo L. Black: They -- were there divergences or were those all six leagues of Spanish grant.

Mr. George S. Swarth: We find no Spanish pronouncement relating to the Gulf Coast in this respect.

There was silence.

However, in 1797, there was a Spanish cedula announced by the King which said this, "The immunity of the coasts of all my dominions, all my dominions, will not be measured as was done until now by the doubtful and uncertain range of canon but by the distance of two miles of 950 places each.”

Those are almost exactly geographic miles.

Now, that remained in effect from 1797 when it was announced until many years after Florida was seated to the United States in 1819.

We think that if Spain ever did have any different policy, that policy was superseded in 1897 by this very definite pronouncement and which remained in effect until 1819.

Now, as to the British claims, that of course rests on King George's proclamation describing Florida's as bounded by -- I have to say, by the Atlantic Ocean of the Gulf of Florida including all islands within the six leagues to the coast.

Well, the Solicitor General has already explained our views about the effect to be given to a statement including all islands within a certain distance.

We think it means what it says, islands.

The suggestion was made yesterday that effect must be given to every part of a description and that we're trying to read something out of it.

And we think on the contrary, the States are trying to read something out of it.

If it had simply said extending into the gulf six leagues, then certainly, they would be in the right as to what meaning of that phrase was.

But when it says -- the addition of the word “islands” does not necessarily add to the scope of the description I think it restricts it including all islands within six leagues.

We have the principle expressio unius est exclusio alterius est, and we think by mentioning islands, they excluded other, the water in the submerged land.

Now, the case of Mahler against Norwich & New York Transportation Company was mentioned.

That case is discussed in the Government --

Justice John M. Harlan: When it came to the part of constitution readmission, although its claim had been so described in the historical period.

It is asserted in terms not of islands but in terms of an absolute three-league boundary --

Mr. George S. Swarth: That is correct, Mr. Justice Harlan.

Justice John M. Harlan: -- in 1868.

Mr. George S. Swarth: Yes.

Yes.

I am speaking now of the first aspect of their argument and I will come to this other in just a minute.

Justice John M. Harlan: Yes, all right.

Mr. George S. Swarth: This Mahler case is discussed at pages 83 to 85 of our reply brief or medium-sized brief.

And I think it is enough to distinguish that case simply to point out the description that was involved there.

It began a line -- it was the perimeter of New York that is being described, the State of New York.

It began in Long Island Sound at the Connecticut boundary, went up the river and around New York counter clockwise and came to Sandy Hook, which of course is the southern headland of New York Bay.

And it said from Sandy Hook to the place of beginning which was the Connecticut boundary in Long Island, in Long Island Sound.

"To the place of beginning in such manner as to include Long Island, Staten Island,” - there's a long enumerated list of islands - “and all the islands and waters in the Bay of New York and within the bounds above described.”

We think that description is so different from the ones we have here.

It says to draw the line in such manner as to include the islands.

We think the Court construed it in the only way it could possibly be construed.

It did just that, it drew the line around the islands and taking in the water which fell within a line so drawn because it says, "And all the islands and waters within the bounds above described.”

Well, that is not the kind of description that King George used in his proclamation or that the -- appears on the descriptions of these other Gulf States and we think that entirely distinguishes that.

Justice John M. Harlan: Who wrote the opinion of the Court of Appeals (Inaudible)

Mr. George S. Swarth: I am sorry.

I can't tell you, Mr. Justice Harlan.

We think even if Great Britain and Spain had claimed more than three miles, it was of course the position of -- of the United States that international law does not permit such claims, that this Government refused to recognize such claims.

And we think that the Court should accept that view of the international law and should not recognize a foreign government as having possessed what this Government refused to recognize it as possessing.

In any event, Florida does not derive its title from Spain or from Great Britain.

Florida derives its title from the United States.

It was their possession and their territory for many years before it became a State.

And certainly, when the United States acquired Florida from Spain, the maritime boundary policy of the United States became applicable to it.

And whether the prior sovereigns that claimed more or less, we think it is quite plain that at that point, the United States imposed its three-league policy on the territory of Florida.

Actually, what we think -- a three-mile policy, excuse me, on the territory of Florida.

Actually, we think what happened was that the Spanish boundary of two miles was expanded to three miles when we acquired Florida.

And Florida of course as a territory --

Justice Felix Frankfurter: You would say we got that as a matter of international law and not because His Catholic majesty ceded it to us.

Mr. George S. Swarth: Exactly.

Justice Felix Frankfurter: He couldn't cede what he didn't have according to your views.

Mr. George S. Swarth: That is our view for precisely, Mr. Justice Frankfurter.

Now, Florida of course as a territory, could not have any independent policy.

And United States established all its policies for it and there was certainly no question of independent policy there so that as to Florida, as in the case of Louisiana, Mississippi and Alabama.

The question of whether at the time it became a State means just before or means upon statehood is quite immaterial because for many years before statehood, it was subject -- plainly subject to the national policy of the United States.

This case of Pope against Blanton which Senator Holland mentioned, the case is of little significance because this Court directed it to be dismissed for the lack of juris -- for lack of a jurisdictional amount.

However, in that case, the District Court did say that the Treaty with Spain fixed the boundaries -- that is the 1819 Treaty by which we acquired Florida.

Fixed the boundaries of Florida as the East and West Florida's together with adjacent islands, the act of Congress adopted that.

This act in effect described one of the boundaries as being the Gulf of Mexico and is by its adoption of the Spanish description.

Under international law, this means that the jurisdiction of the State extends one league into the gulf or three miles.

That was the view that the lower court took in Pope against Blanton as far as the claim of -- based on the Spanish claims was concerned.

As I say, however, the case was dismissed later for lack of jurisdictional amount.

Now, we come to the question of whether Florida's boundary as claimed in its Constitution of 1868, has been approved by Congress.

Justice Charles E. Whittaker: Before you read that, may I ask you Mr. Swarth.

(Inaudible) is concerned that the Act March 3, 1845 giving Floridas to (Inaudible) is contained the descriptions of its territories in place, the territories of East and West Florida which by the Treaty Amity, Settlement, and Limits was treated to the United States?

Mr. George S. Swarth: Yes.

That is correct, Mr. Justice Whittaker.

Justice Charles E. Whittaker: As I understand that Treaty given there -- there was embraced "the adjacent islands dependent on said province.”

Mr. George S. Swarth: Yes.

Justice Charles E. Whittaker: So something more was embraced in that Treaty than just mainland.

Mr. George S. Swarth: Oh, yes, indeed.

Justice Charles E. Whittaker: Then did the -- Florida then did consist of something more than named as it was originally admitted to the Union.

Mr. George S. Swarth: Yes, it did.

It consisted of mainland and islands and by virtue of general international laws applied by the United States, a three-mile belt around the mainland and the three-mile belt around the islands.

Justice Charles E. Whittaker: Then is it your understanding or do you -- you argue, I suppose now that the 1868 Constitution expanded, did it, the Florida territory?

Mr. George S. Swarth: It attempted to do so certainly.

We don't think it succeeded.

Justice Felix Frankfurter: Well then, no antecedent to that expansion as you call it, except what was written by the Constitution made as a part.

Did they -- that this is an act of creation on their part --

Mr. George S. Swarth: So far --

Justice Felix Frankfurter: -- as Floridas -- any claim by Floridas (Inaudible).

Mr. George S. Swarth: So far as I know, this was an innovation by the constitution writers of Florida.

Perhaps they were looking at the Treaty of Guadalupe Hidalgo or the President of the Republic of Texas, I don't know.

It's an -- we don't have any record of what they were looking at.

Justice Potter Stewart: There were those two -- two prior, I think aborted attempts at forming Florida Constitution just prior to this constitution, weren't they?

Mr. George S. Swarth: Yes, they were --

Justice Potter Stewart: There was that much history.

Mr. George S. Swarth: Yes.

They were practically simultaneous.

Justice Potter Stewart: Each of which expanded the prior values of Florida.

They were all purported to --

Mr. George S. Swarth: Yes.

I believe one them related only to islands within the stated distance.

Yes.

At that time, Florida was -- but I was taking that episode as a whole.

I think as far as I know, there was no background for it, it -- it is apparent historically.

Justice John M. Harlan: Well, there was a prior agreed claim, wasn't there, that simply wasn't tied to islands.

Mr. George S. Swarth: I believe there was, Mr. Justice Harlan.

Justice Charles E. Whittaker: One more question if I may to this.

Does your view with respect to Florida's Republic in view of the islands dependent upon the said province, involve a marginal sea of three miles surrounding each island?

Mr. George S. Swarth: Yes it does, Mr. Justice Whittaker.

Not by virtue of any terms of the description but by virtue of a general principle of international law as applied by the United States.

But that is an incident which follows automatically on American possession of land bordering on the sea.

Justice Charles E. Whittaker: Does the three-league adoption by the 1868 Constitution expand Florida's territory or may attempt to?

Mr. George S. Swarth: Yes, I think it did.

I think it attempted to go beyond what international law gives and to take something more out of the ocean which belongs to all nations.

Justice Charles E. Whittaker: (Inaudible) on the physical examination and survey.

Mr. George S. Swarth: Well, I will attempt to (Inaudible) through and apply the Florida description.

If it means three leagues from the mainland, it would of course be conceivable if there would be so many islands with three-mile marginal belt, if there'd be no difference but that is not the fact however.

There are in fact parts of the Florida Coast, the Gulf Coast where there are no -- not a substantial number of islands at a distance of three leagues or approaching it.

There are areas where the change in description would have made a very great difference, that very substantial areas, I think along most of the coast, it would make a substantial difference in fact.

Justice Hugo L. Black: And do you think that in this view of the Reconstruction Act which require the States to admit constitutions for examination and approval.

And bear in mind as after they did, someone will submit it in the boundary which you say may have increased the boundary that it had and also assuming the validity of the Submerged Lands Act which provides that if Congress has approved a boundary beyond three miles.

What is -- how do you answer the argument that these States shall have the extension of boundaries approved, assuming that -- that there's no constitutional violation in either the Submerged Lands Act or Reconstruction Act.

Mr. George S. Swarth: Well, that is precisely what I wanted to discuss in the remainder of my argument of -- we think that the Reconstruction Act --

Justice Hugo L. Black: Do you attack the constitutionality if either one?

Mr. George S. Swarth: No, we do not, Mr. Justice Black.

Justice Hugo L. Black: Of course, you know there were very stronger text made on the constitutionality of those Acts on the basis that the States had never been out of the Union.

Mr. George S. Swarth: Well --

Justice Hugo L. Black: You do not attack -- you do not attack the --

Mr. George S. Swarth: We agree --

Justice Hugo L. Black: -- the right of Congress to require a new constitution.

Require its complete approval by Congress as -- as a valid action of Congress.

You do not attack its constitution.

Mr. George S. Swarth: I don't think that the constitutional validity of that is an issue now or could be.

The question is whether Congress did approve or whether it required something of the States that it couldn't have required or shouldn't have required, it seems to me not relevant to the question of what Congress did.

Justice Hugo L. Black: When?

With which time?

Mr. George S. Swarth: In 1868.

Justice Hugo L. Black: But the act, I don't know why, I am in the dark to that.

But the act specifically require, there was an act which specifically required them to submit a constitution for approval.

Mr. George S. Swarth: That is true.

Justice Hugo L. Black: They specifically submitted the constitutions for approval.

Mr. George S. Swarth: Yes.

Justice Hugo L. Black: Among the other things that were -- were in those constitution were the description of the boundaries of the States.

Mr. George S. Swarth: Yes.

Justice Hugo L. Black: Why wasn't -- why wasn't that an approval by Congress.

Mr. George S. Swarth: Because the chain of events stopped right there, Congress didn't approved.

Congress simply said --

Justice Hugo L. Black: It didn't approve the constitution?

Mr. George S. Swarth: That's our position, Mr. Justice Black.

What Congress said is, "These constitutions are Republican and Senators and Representatives may return to Congress," and that is all that Congress said.

Justice Charles E. Whittaker: (Inaudible)

Mr. George S. Swarth: No.

It did not, Mr. Justice Whittaker.

Justice Charles E. Whittaker: And the States were (Inaudible) to representation in the Congress.

Mr. George S. Swarth: Yes, they were.

Justice Charles E. Whittaker: By default or how, by non action?

Mr. George S. Swarth: No.

By a specific declaration being enacted, That's not Senators and Representative, maybe received in Congress.

Justice Charles E. Whittaker: But as a predicate to the right of the States to do so, they were required to submit new constitutions.

Mr. George S. Swarth: Yes they were.

Justice Charles E. Whittaker: And they were required to be approved by Congress.

Mr. George S. Swarth: Not quite.

The statement in the first act was that if they submit new constitutions and if they are approved by Congress, then the Congress will admit Senators and Representatives.

It did not actually say that that was the only condition on which Congress would approve them and this is more than a quibble.

Justice Hugo L. Black: That was one of the bill, wasn't it --

Mr. George S. Swarth: It's said if --

Justice Hugo L. Black: -- in the Act?

Mr. George S. Swarth: -- it said if that was done, Congress would admit that they're Senators and Representatives.

It did not say Congress would not admit them otherwise.

And that is a little more than a quibble because that Act of March 2, 1867 had set down a requirement as to the number of voters who must approve State constitutions.

They require that a majority of the registered voters vote in an election which approved them.

And that was one of the conditions laid down in the Act of 18 -- of March 2, 1867 along with this requirement of approval by Congress and so on.

And yet in the case of Alabama, a majority of the voters did not vote in the election so, the according to the terms of 1867 Act, the Constitution was not properly adopted.

Justice Felix Frankfurter: But Congress specifically, in the Act of 1968, took care of that by saying that was adopted by large majority of the votes cast at the election.

Mr. George S. Swarth: Yes.

But that was not that the Act of 1967 had required.

Justice Felix Frankfurter: But the State had the right to modify its requirement and qualify the condition.

Mr. George S. Swarth: Precisely.

Justice Felix Frankfurter: If I make an offer to you and you can't meet it fully, but I can say very well you met it sufficiently and I accept it.

Mr. George S. Swarth: That's precisely my point, Mr. Justice Frankfurter.

We think that if Congress ever did intend to impose approval, a blanket approval of the Constitution as a condition of admission that -- we don't think it did and I want to come on that in a minute.

But if it did, we think that was abandoned by --

Justice Felix Frankfurter: I think if they -- if they specifically abandon one of their requirements and say nothing about others.

I now use your expressio unius, I don't think much of that is a guiding consideration deciding cases but I'll take it for your purpose.

If they specifically qualify a limitation in their 1967 Act, I would -- I think I can fairly say they didn't qualify anything else.

And when they set examinations and approval presumably, they meant to examine in order to approve a discipline.

Mr. George S. Swarth: Well, if I may then I would like to get into the history of the Act of March 2, 1867, which first laid down that requirement and which I think shows that it did not mean a complete comprehensive approval in every aspect of the constitution.

We think that --

Justice Charles E. Whittaker: (Inaudible) only if the State present the transportation and if it's approved, then they may -- their representatives maybe admitted?

Now will you then (Inaudible) from the words they used for the so.

Mr. George S. Swarth: I think my first answer to that, Mr. Justice Whittaker, is that the -- the statute that we are concerned with is the statute of 1868 and it says no word of approval at all.

The State of Florida is trying to read into that statute an approval that was mentioned in the Act of 1867.

In other words, they are trying to go behind the language of the Act of 1868 to find something which on its face it does not at all express.

Justice Hugo L. Black: They're using language of this Act of 1968 there before you concede that it did not approve.

Mr. George S. Swarth: Yes, I do, Mr. Justice Black.

Justice Hugo L. Black: It is the last approval, what page is that in the statute?

Mr. George S. Swarth: That is 15 statutes at large, page 73.

Justice John M. Harlan: Where is it?

Mr. George S. Swarth: At page 331 in the Government's large brief.

Now, that Act said -- well, if I may, I'd like to -- well, I think the language of that Act plainly on its face does not include approval whereas the people of North Carolina and South Carolina and so on have framed constitutions of state government which are Republican.

Justice Felix Frankfurter: Well, I think you ought not to skip what you're skipping.

Mr. George S. Swarth: I am sorry Mr. Justice Frankfurter, I'll be glad to read the whole thing.

Justice Felix Frankfurter: In pursuance of the provisions of an act.

Mr. George S. Swarth: In pursuance of provisions of an act entitled an act for the more efficient government of the rebel states.

Justice Felix Frankfurter: And from -- and for me, that incorporate that from 1867.

Mr. George S. Swarth: As to what the States did.

The States in pursuance of that Act have adopted constitutions, yes.

Justice Felix Frankfurter: Yes, but the Act of 1867 wasn't organic and important as you've indicated and everybody else does, a terrifically important piece of legislation there is to this country.

Mr. George S. Swarth: Yes.

Justice Felix Frankfurter: And you can't, and when the -- when the second Act refers to prior Act, the prior Act can't be read out of existence, instead we must only look at the words of the second Act which relates to and is in response to the prior Act.

Mr. George S. Swarth: I quite agree.

Justice Felix Frankfurter: And therefore the two will work together.

Mr. George S. Swarth: I quite agree.

But if in construing the Act of 1868, if we are going to look back to the Act 1867 to find what the Act of 1868 meant, I think also, we're entitled to look at to the debates to see what the Act of 1867 was.

Justice Felix Frankfurter: All depends who does the debating.

This business of picking everything out of anything that's said on the floor of either of House, it seems to me a very dangerous way with which to deal with legislation.

If some authoritative statesman, somebody who had charge of the -- of the Act of 1868 say that we're only concerned with whether there is a Republic form of government, anybody.

Mr. George S. Swarth: The Act of 1868.

Congressman Stevens who was Chairman of the Committee in the House said, "We have looked at these constitutions, we have pronounced them Republican in form and all we propose to require is that they shall remain so forever, subject to this requirement, we are willing to admit them into the Union.

All we propose to require is that they remain Republican in form.”

Now, I think that is very significant language and it comes from the Chairman of the Committee as showing what Congress was thinking about.

This goes back to -- prior to the Act of 1867.

The States -- the ten States remaining, Tennessee came in early but the others had submitted constitutions which were somewhat modified by -- in one way or another.

They hoped that that would meet with the approval of Congress.

And those constitutions were submitted to Congress and they were rejected, the joint committee on reconstruction presented their report which said, "These constitutions are unacceptable for three reasons.

They were not properly adopted, they are not Republican -- the governments are not Republican in form, and the governments are not loyal to the Union.”

And they --

Justice Felix Frankfurter: This contradicts what Thaddeus Stevens said then, even said then, didn't it, certainly.

If you say all they were concerned with was whether it's a Republican form of government and they were rejected or some of them were rejected because they weren't properly adopted, the case asserts more things than a Republic form of government.

Mr. George S. Swarth: That was with reference to these prior constitutions.

Justice Felix Frankfurter: Well, I understand that but evidently, Congress was also thinking about those.

Mr. George S. Swarth: Yes, I think that is true.

Justice Felix Frankfurter: So, then Thaddeus Stevens doesn't confine or define the limits of what was implied in their re-representation of it.

Mr. George S. Swarth: I think the question of due adoption is a matter of definition of the Constitution.

It isn't the constitution if it isn't duly adopted.

It -- the -- the others were documents that were brought to Congress that a group of people had drafted.

And to call them constitutions that they were constitutions in form.

I don't think that they could be properly be called constitutions.

Justice Felix Frankfurter: Well, that would be that the reconstruction controversy was whether these bodies were really legal bodies or not.

Mr. George S. Swarth: That is true.

Justice Felix Frankfurter: And we can't sit here and say, well, it wasn't a constitution at all therefore, you rejected it.

Evidently, I don't know how and what you tell me but they gave three grounds, one of which was procedural inadequacy of adoption.

Mr. George S. Swarth: Yes.

And as the result then, an Act of the Act of March 2, 1867 which laid down the procedures to be followed.

How the conventions were to be elected, how they were to be held, how the constitutions were to be ratified.

Now, all that was implicit in the statement pursuant to the Act of 1867.

Justice Felix Frankfurter: Yes, and -- and there was -- there was non-compliance as you say with the majority votes and Congress had specifically wager, didn't it?

Mr. George S. Swarth: Yes, it did.

Justice Felix Frankfurter: And even that isn't a question of Republican form of government, of course to our great (Inaudible) I think it was part of the voting sometimes around in this country less than the majority of those entitled to vote.

Mr. George S. Swarth: That -- when not to the question of whether the form of the government adopted by the constitution was Republican but whether the --

Justice Felix Frankfurter: No, but that is -- my point is that apparently, that wasn't the only thing Congress was concerned with.

We call -- it specifically said, “We adopt this, we recognize the States or a written representation,” although they not -- did not comply with the specific requirements and instead of shutting their eyes, they specifically dealt with it.

Mr. George S. Swarth: Well, I think that is true that Representative Stevens was --

Justice Felix Frankfurter: Overstating it.

Mr. George S. Swarth: -- overstating it to that extent.

They were concerned with whether they were duly adopted, I think that was a necessary concern.

Justice Felix Frankfurter: Well, why anymore necessary than claiming the boundaries that they didn't have, why is that anymore?

It seems to me for a State who claim what is probably beyond legal authority, according to your view, is no more or no less important than to have a constitution adopted by a meager vote.

Mr. George S. Swarth: That wasn't the problem that was bothering Congress at this time.

This was not an admission of new States.

Justice Felix Frankfurter: I understand that.

Mr. George S. Swarth: These were existing States and as was pointed out in the debates, it was said, Congressman Bingham said, “Every gentleman knows that you must, under this bill, recognize the boundaries of these States as originally fixed by the sovereignty of this Union and if they stand as they were to this day.

Justice Felix Frankfurter: But -- but I also been taking judicial notice that the most frequent controversy in the American civil life among the States is the boundary controversy.

Mr. George S. Swarth: That is quite true but I think Congress felt that this was no time to be getting into any questions other than the very crucial questions of reconstruction.

The Union here was in a -- an extremely difficult situation.

Here were ten States without adequate government of their own, without representation in Congress, it was a thoroughly unsatisfactory --

Justice Felix Frankfurter: That is true of the earlier constitutions, isn't it?

But what was (Inaudible) and the constitutions that were rejected earlier.

Mr. George S. Swarth: Yes.

Yes, it was.

Indeed.

Justice Felix Frankfurter: Its unsatisfactory condition was a rather new one.

Mr. George S. Swarth: No.

Justice Felix Frankfurter: Again with (Inaudible).

Mr. George S. Swarth: It did.

But Congress was anxious to terminate it as rapidly as possible and --

Justice Hugo L. Black: Terminate what?

Mr. George S. Swarth: Terminate the situation to get the Southern States back to representation in Congress.

Justice Hugo L. Black: Some were and some were not.

Mr. George S. Swarth: I think the debates reflect that Congress as a whole was --

Justice Hugo L. Black: I understood that the majority to pass this bill accept the views that the States were not States anymore, they were out.

They've been blotted out and they can only become States by being admitted to the Union on terms which Congress fixed.

President Johnson vetoed, refusing to go on that ground I understood you.

They did reply that there'd be, write new constitution as in order to be a State in Steven's group and that they'd be approved by the Congress.

Mr. George S. Swarth: They were --

Justice Hugo L. Black: That was my understanding of the history about that.

Mr. George S. Swarth: I certainly debate --

Justice Hugo L. Black: Where --

Mr. George S. Swarth: -- to your knowledge of that subject.

Justice Hugo L. Black: -- whether that might be -- it maybe that I have read the wrong history but that's what I understood [Laughter] -- what I understood to be the history of the -- of the reconstruction Congress and the purposes of those who required the States.

It had been the States to submit themselves to Congress before they -- it was agreed by the Congress that they would.

Mr. George S. Swarth: It certainly is true, they were required to submit new constitutions before their Senators --

Justice Hugo L. Black: For a submission, examination and approvals.

Mr. George S. Swarth: Yes.

But I believe that a reading of the whole debates will show that that word approval was used by everybody as meaning approval with respect to this question, “Do they establish loyal Republican governments?”

Justice Felix Frankfurter: Well, they were preoccupied with but it doesn't mean that the others had to be that the other provisions would have been deleted or everything else is in different --

Mr. George S. Swarth: I --

Justice Felix Frankfurter: -- as the men in Congress.

Mr. George S. Swarth: I think the debate show --

Justice Felix Frankfurter: That they were indifferent to everything else.

Mr. George S. Swarth: That they were indifferent to everything else when other questions were raised time after time, it was said that does not concern us, thus that --

Justice William J. Brennan: That concerned about (Inaudible)

Mr. George S. Swarth: I beg your pardon.

Justice William J. Brennan: In some instances, they 1were concerned with the salaries to be paid, paid opposite, were they not?

Mr. George S. Swarth: Yes.

That point was raised.

Congress did not seem much impressed by it but the man who raised it regarded that as going to the question of whether the Government is Republican.

He felt --

Justice William J. Brennan: Who raised --

Justice Felix Frankfurter: You mean the silence of it determined whether a State is Republican?

Justice Hugo L. Black: Who raised it?

Justice Felix Frankfurter: (Inaudible)

Justice Hugo L. Black: Who raised that?

Mr. George S. Swarth: I'm sorry, Mr. Justice Black.

Justice Hugo L. Black: I have --

Mr. George S. Swarth: I cannot --

Justice Hugo L. Black: There were two groups fighting very hard at that time, and I think you would have found if you've read this history of that time.

One of which took the positions and including under Johnson, took the position that the States have never been out of the Union they were still in the Union when time of their representation.

The others took the view that they forfeited their membership in the Union, were not in it and required them to come in as though they were new States in entirely.

I think that was the -- the line of debate at that time which may or may not affect this but it causes me to pause in connection with your argument as to what they meant by examination and approval of the constitution.

Mr. George S. Swarth: Well, it's true a great many people took the position of the States were out of the Union and had to be readmitted.

But I do not understand that that was the view that prevailed, and certainly it's not the view that this Court has taken.

Justice Felix Frankfurter: No.

That -- I am going to ask you.

Do you think Thaddeus Stevens would have written what the Chief Justice Chase later wrote, it's an indestructible Union, indestructible State?

Do you think he would have in the light of all we know about his views.

Mr. George S. Swarth: I don't understand that he thought the States had been out of the Union.

Justice Hugo L. Black: Stevens, Thaddeus Stevens?

Mr. George S. Swarth: I may be in error on that.

Justice Felix Frankfurter: It went out -- it went out beyond the control of the -- of the remaining so called union States.

The Union could do what they wanted to please.

They could send in Governors (Inaudible) and keep them under subjection as long as that part of Congress thought would bring them to appropriate (Inaudible) that is correct, isn't it?

Mr. George S. Swarth: Yes.

Justice Felix Frankfurter: Well, they weren't -- to that extent, they weren't out of control of the -- or sovereignty, but they were out as in the sanction which the Chief Justice in Texas against White said they were an indestructible States and had been, it's never been out.

Do you think Thaddeus Stevens thought they were never out.

That States with all the rights of the constitution gives the various members of the Union.

Mr. George S. Swarth: Oh, well, now that's a different question.

Justice Felix Frankfurter: Well, that's what we mean by States.

We don't mean a piece of territory subject to a central government control.

We mean a political -- having the political rights of States.

That's what we mean by States.

Mr. George S. Swarth: Well, certainly as this Court held, some of their rights had fallen into or some of their organization had fallen into advance but the Court said that they were States within the Union and that is I --

Justice Felix Frankfurter: The court did that I know.

Mr. George S. Swarth: Yes.

Justice Hugo L. Black: But you are not attacking the law on the ground of this question -- on the ground that the Act is unconstitutional on the basis of the State (Inaudible).

Mr. George S. Swarth: Oh, no.

No, we do not -- we do not claim that at all.

Justice Felix Frankfurter: Do you agree that conditions could have been imposed by Congress for the re-exercise -- for the re-exercise of the right they had in 1860 or 1869.

What do you say that the condition, the claims or conditions under which, they sought to get those functions as of all did not include anything they may have said in their submission of a constitution within the boundaries, that's your position.

Mr. George S. Swarth: Yes.

That it did not pertain, that Congress was not concerned with looking at or passing on in any way any question except whether the constitutions were Republican and the governments were loyal.

On this question of salaries which was raised by a Mr. Payne of Wisconsin, Mr. Justice Black.

It was thought to relate to Republicanism in this.

The Governor had excessive, that what were considered by him, excessive appointive powers of officers to salaries he felt were excessive so that the -- his feeling was the Government was establishing an oligarchy under the control of the Governor of bleeding the State with this excessive salaries for a few chosen people which he felt was not a Republican situation.

However, Congress brushed that aside.

This is not -- really being of concern to them.

Justice John M. Harlan: The Act of 1872 (Inaudible)

Mr. George S. Swarth: I believe that is --

Justice John M. Harlan: (Inaudible) as Justice Whittaker given, 292 is -- you got something there (Inaudible)

Justice William J. Brennan: It's March 2nd.

Mr. George S. Swarth: Yes.

Page 292 yes.

Justice William J. Brennan: Well that's the Act of March 23rd.

Mr. George S. Swarth: Oh, I beg your pardon.

Justice William J. Brennan: Where is the Act of March 2nd?

Mr. George S. Swarth: On page 285.

Justice William J. Brennan: Thank you.

Mr. George S. Swarth: Section 5 is the relevant section and it was introduced by a Senate amendment.

Justice William J. Brennan: Yes.

Mr. George S. Swarth: It was in the Act that was originally drafted.

Justice Hugo L. Black: Do you know who -- do you happen to know who (Inaudible)?

Mr. George S. Swarth: Yes, I -- can tell you in a moment, Mr. Justice Black.

It was offered by Senator Johnson of Maryland and was amended by Senator Sherman of Ohio.

There was never any discussion of anything in any constitution that was not thought by the person doing the discussing to be relevant to the question of whether the constitution was Republican or the government loyal or the constitution duly adopted.

They never ranged beyond what they conceived to be within that scope and whenever other subjects were mentioned, they were immediately brushed to side.

We are not concerned with that.

That doesn't go to whether it's Republican and that -- that ended it.

Justice John M. Harlan: Could I ask you a question?

Assuming we had no legislative record at all, simply the Acts, the formal enactments, would you agree or what would your position be as to whether what is shown by those enactments would satisfy the requirement of approval in the SLA?

Mr. George S. Swarth: No, Mr. Justice Harlan I think it would not.

Justice John M. Harlan: You think it would not.

Mr. George S. Swarth: No.

I think that --

Justice John M. Harlan: I thought your position was that when you read the enactments in light of the legislative history, the doubt at least arose or it is clear that there was no approval.

Mr. George S. Swarth: Well, I think that makes it much clearer.

I think the legislative history leaves no doubt at all.

Justice John M. Harlan: What -- what doubt do you -- could you articulate what the doubt is?

Forget the legislative history.

What the -- what premise of your doubt is looking at the enactments themselves?

Mr. George S. Swarth: Well, first the Act on which the must rely is the Act of 1868 which does not say anything about approval.

Justice John M. Harlan: But it incorporates that the phraseology in the Act of 1867.

Mr. George S. Swarth: I don't think that it quite incorporates.

It says the constitutions have been submitted pursuant to.

Justice John M. Harlan: Pursuant to.

Mr. George S. Swarth: That explains where they came from.

They don't go on and say, “We are going to do here what we said there we are going to do.”

The Florida constitution was discussed I think more than any other.

It contains 186 Sections.

The discussion, the subjects discussed appear at the most in 22 of those Sections.

Now, that seems to me on its face to show something far short of a complete discussion of the constitution.

Justice Felix Frankfurter: Why do you say that?

The constitution of Oklahoma another record 1911 run about there, I think that also had a (Inaudible) as the New York Court of Appeals procedure.

And that was carefully scrutinized not only by the Congress, but the President of United States.

That has been rejected in order (Inaudible).

Why do you say Congress (Inaudible) document by the constitution which the important right to be (Inaudible) was involved, that they wouldn't examine too many sections.

Mr. George S. Swarth: No.

You misunderstood me Mr. Justice Frankfurter.

Justice Felix Frankfurter: Sorry.

Mr. George S. Swarth: I don't mean that there were too many Sections for them to examine.

Justice Felix Frankfurter: Or to prevail.

Mr. George S. Swarth: No.

My point is that their discussion in fact covered only 22 Sections --

Justice Felix Frankfurter: What?

Mr. George S. Swarth: -- out of 186; I think that cannot be considered an exhausted examination of the constitution.

Justice Felix Frankfurter: Why do you say that?

Maybe that they found these objectionable and the others (Inaudible).

Mr. George S. Swarth: Well, they never even said that?

Justice Felix Frankfurter: How they can find out which of the 22 that interested them unless they went through the whole.

Mr. George S. Swarth: Well, now we had an answer to that.

When the constitution of our console was being discussed.

Representative (Inaudible) of Missouri who was the member of the committee said, I do not intend to discuss both the feature of the bill and question about, but only to answer the objection to the constitution based on the fact the gentlemen have not seen it and do not know its provisions.

I ask to have read the Bill of Rights, the article on subject on franchise and the article on the subject of education.

These embrace the main features of the constitution and are the provisions which have been specially attached by those who spoken against the bill.

Justice Felix Frankfurter: (Inaudible) is one the most distinguished members of the Congress in my lifetime.

That's probably nine tenth of the bill that attacked by the Congress are not read by more than one tenth of its membership.

Mr. George S. Swarth: Perhaps it's true.

I accept the Statement [Laughter], but I think this shows that Congress was --

Justice Hugo L. Black: In view of the fact that some or the other went over that time.

I see no reason why you shouldn't have few minutes beyond this time if you need.

Mr. George S. Swarth: Thank you Mr. Justice Black.

This shows that Congress was willing to proceed on the basis of their reading for the benefit of people who had not seen the constitution at all, a reading of these Sections which relate to franchise, education and the Bill of Rights.

That was all they were interested in here and we think that -- that shows their attitude throughout this whole reconstruction episode.

Justice William J. Brennan: May I ask Mr. Swarth (Inaudible) as I understand your argument that used the word expressly approved the constitution that save the State of Florida.

We still would not debate, am I correct, that this was an approval for the purposes of the SLA.

Mr. George S. Swarth: Yes we would think so.

Justice William J. Brennan: You think it would or it would not?

Mr. George S. Swarth: We think it would not.

Justice William J. Brennan: It would not in other words nothing short for the purpose of the SLA of -- we approved the boundaries as delineated in the constitution of the State of Florida.

Mr. George S. Swarth: No.

Justice William J. Brennan: Do you think it would satisfy the principle?

Mr. George S. Swarth: Well, that certainly would satisfy.

Justice William J. Brennan: Yes, but what less than that?

Mr. George S. Swarth: I think if they made it clear that they were approving for all purposes everything in the constitution that that would satisfy.

Justice William J. Brennan: Well, if -- if the (Inaudible) had read, we approved the constitution of the State of Florida, was that not been approved for?

Mr. George S. Swarth: I think, in construing that you would have to see what they meant by approval.

Approval ordinarily is relevant to some particular criteria, for example, an appropriator approves a proof for a magazine, he doesn't endorse the editorial policy.

Justice Charles E. Whittaker: When you approve (Inaudible)

Mr. George S. Swarth: You may approve for different purposes, the banker may approve it to see if financial provisions are protected.

Someone else may approve it to see if something else is protected.

Justice Charles E. Whittaker: (Inaudible)

Mr. George S. Swarth: Well, that's the question.

I think you would have to have something to show whether Congress did intend as to be an unlimited approval and we think that the whole history of the reconstruction debate shows that they did not.

Justice Charles E. Whittaker: (Inaudible)

Mr. George S. Swarth: No.

I agree that approval can be implied but take the cases of implied approval that they site.

Two of those were cases where Virginia has entered into context with the citizens of certain counties that new States that could be created.

Congress never expressly approved of those context but did admit the new States.

Justice Felix Frankfurter: What did they mean -- what did Congress mean or what was the legislation.

They all get in trouble when I ask what Congress means that nobody can ever find that out, yet they probably express themselves.

What did they -- what was meant by the Act of 1867 when it used the word approval.

We want you to submit something that we will examine line by line and by line by line approved.

Did they mean that?

Mr. George S. Swarth: No.

I think we did not.

Justice Felix Frankfurter: What did they mean of approval in 1867 Act?

Mr. George S. Swarth: Approval with respect to the criteria they were letting down in that Act.

Approval of the provisions going to make a Republican government, and I think that what we accorded from the debate show that that's what they had in mind.

Justice John M. Harlan: Do you have all they said in the discussion of the Submerged Land Act which is the one we really have to approve.

Mr. George S. Swarth: Yes.

Justice John M. Harlan: We get down to the question of how quick they expected this Court to be with reference to the approval of Act of -- by Congress of boundary and was there anything said in the Congress was a report made or did it include anything about reconstruction approval of the Act.

Was that submitted to the Congress or they included that clause?

Mr. George S. Swarth: There is no doubt that that precise question of was the question which led to the introduction of this provision in the Act, but it was a subject of much debate as to whether or not it did constitute an approval.

Justice John M. Harlan: Now they were not -- they submitted to us.

They said the question is when they submitted to us to determine whether or not there had been an approval of such a boundary.

They did -- were we to do that of some basis or other than the -- were we to be very strict to reach it and looking to see what was on approval by Congress.

Mr. George S. Swarth: Yes.

Justice John M. Harlan: (Inaudible) what are the standards or the standards that you suggest we should apply in determining whether or not the Act of Congress would say "the constitution has to examined and approved", before -- representatives come in and the representatives submit it as to (Inaudible).

They refer to the Act that has been followed pursuant to that Act.

What standard would you suggest we adopt to determine whether it come was in the -- fairly and squarely within what Congress said because they have the power to do that, to admit.

Mr. George S. Swarth: Oh yes.

Well, I think it's simply a question of whether Congress had actually purposefully approved this boundary either in expressed terms or by implication of -- I was about to say, the cases of implied approval that I speak of or the cases, for example, for the constitutional necessity would be implied.

This Virginia context for new states to be created was not approved by Congress.

The Congress did admit the new States and this Court said, Congress could not create new States, under the constitution could not create new States out of an existing State except pursuant to its agreement.

Therefore, we necessarily conclude the thing that was done couldn't have been done if Congress had not approve the context.

We don't have anything like that here.

Certainly, representative can be admitted to Congress while there are boundary disputes active boundary disputes are in effect.

Texas, for example, the Greer Country dispute was actually both before and after the Civil War and yet representative of Texas were saved in Congress throughout that time.

It doesn't indicate any agreement with the State's boundary claims.

Justice John M. Harlan: (Inaudible) just as you might approach it or might reproach it you could have two individuals making a contract.

Mr. George S. Swarth: I --

Justice John M. Harlan: Why did you -- as I get to the thrust of your argument, it seems to me that your basic approach here --

Mr. George S. Swarth: Well, --

Justice John M. Harlan: -- does not recognize any difference between the covenants of the construction or whatever you want to call it.

I am looking at a matter of this broad suite with importance against what might be the sensible rules in case of two individuals contracting.

Mr. George S. Swarth: I think that perhaps is correct of -- Congress was well aware that there was a question, a very definite question, whether what happened in 1868 was or wasn't an approval of the boundary.

Senator Holland, of course, urged to the Senate that the boundary had been approved and explained why he thought so.

Senator Anderson indicated very strongly his view that that was not an approval at all of the boundary, that it was nothing beyond the admission of Senators and Representatives.

Justice Charles E. Whittaker: Does that (Inaudible)?

Mr. George S. Swarth: It was left to this Court.

Justice Charles E. Whittaker: And that's here.

Mr. George S. Swarth: Precisely Mr. Justice Whittaker.

Justice Charles E. Whittaker: (Inaudible) what Congress said should (Inaudible)

Mr. George S. Swarth: I'd put it a little more sharply than that, an approval for such purpose as to approve the boundary, an approval of such scope.

Justice Charles E. Whittaker: Well, to me that's confusing (Inaudible)

Mr. George S. Swarth: Oh!

I think one can approve in a certain aspect for a specific purpose, in fact I think approval is more generally limited to certain aspects or certain purposes.

This question is not entirely a new one for this Court.

In the case Gunn against Barry, 15 Wallace, the question of the effect of this Act of 1868 was before the Court, and it was said there regarding the Georgia constitution, “though her constitution was sanctioned by Congress, this provision can in no sense, be considered an Act of that body.”

That's the provision of charge of constitution.

“The sanction was only permissive as a part of the process of her rehabilitation and involved nothing affirmative or negative beyond that event.”

Justice Hugo L. Black: Well, let's suppose that's precisely correct, Congress come to (Inaudible) that you say it is and says that Congress heretofore approved the certain thing, then that should be recognized, that's it's about.

How -- what you have read in that -- the application among that Act, that (Inaudible)?

Mr. George S. Swarth: Well, I think this shows that what Congress did in 1868 was not an approval.

It was merely a permission for Senator and Representative to return and nothing affirmative or negative beyond that event.

Justice Hugo L. Black: You agree -- you would make that as a broad Statement that if just didn't mean anything, didn't mean any approval at all.

Mr. George S. Swarth: I think it meant simply that Senators and Representatives could return to Congress.

That's all it said.

Justice Hugo L. Black: Because of -- because of what?

Mr. George S. Swarth: Because Congress had found the constitution to be republican.

Justice Hugo L. Black: Congress had, pursuant to an Act, which said that the constitution should be examined and approve by them, that said, you can come on and (Inaudible).

Mr. George S. Swarth: Well then of course we get back to the question on what they meant in 1867 when they said approval.

We think they meant in effect determine that it was republican.

I think there is something in the Act of 1868 that shows a rather studied the avoidance of saying it was approved.

In that Act where they refer to the constitution requirements, they say the constitutions herein recognize, rather than, I think it would be the natural language hereby approved if they had intended an approval.

There is another --

Justice Felix Frankfurter: How does Gunn and Barry help you Mr. Swarth.

I just looked at it.

That simply says that merely because the provisions in the State constitution of Georgia allowed exemption, it couldn't affect prior (Inaudible) this created, because that would involve (Inaudible) obligation of context.

How does that -- I don't --

Mr. George S. Swarth: I don't point the case for its holding Mr. Justice Frankfurter.

Justice Felix Frankfurter: Well I know, but you can't just take words out of a case and find significance.

What they have said in this that -- that this conflict (Inaudible) this provision gave authority so far the Congress of the United States is concerned, you can go ahead and do it.

It doesn't mean prior existing rights were wiped out and it didn't mean any new federal right created by it.

It simply said, we let you come back (Inaudible), we let you come back on these conditions, isn't that all it means by approval?

I should pick the phrase sanction, shows that they put their stand of confirmation upon it.

Mr. George S. Swarth: I think the confirmation as to the effect that it met the requirements of the Reconstruction Act of 1867.

Justice Felix Frankfurter: But the reconstruction Act as I read it of 1867 didn't lay down certain criteria.

They have formulated conditions of -- they said how a constitution should be adopted and then said, you bring it, we will examine it and approve it.

Mr. George S. Swarth: It said the constitution which is republican and in conformity of the constitution of the United States and throughout the debates they consciously said that is all the concern here, is it republican or is it in conformity with the constitution.

Justice William O. Douglas: I -- I thought in answer to Justice Frankfurter's argument, you (Inaudible) attention of the Court to some of the cases involving provisions of the State constitutions that were so-called approved when they were challenged in the court.

You mentioned them in your brief.

Mr. George S. Swarth: Well, Gunn against Barry was such a case Mr. Justice.

Justice William O. Douglas: You're not -- you're not relying upon them in your argument here.

Mr. George S. Swarth: Yes.

Yes indeed, we may not abandoning anything find in the brief.

Justice Felix Frankfurter: Gunn against Barry did not say the Congress didn't approve it; Gunn against Barry dealt with the legal consequences of that approval.

Justice William O. Douglas: There was a language in there about the approval or disapproval, but to those -- while those line of cases seem to help you, there are other line of cases that -- in the Court that work against you, it seems to me, the boundary case where there had been boundary described in the constitutions that were admitted in the Union, where the court has said presumably the Congress in admitting the State --

Mr. George S. Swarth: Yes.

Justice William O. Douglas: -- approved the boundaries that were specified in the constitution.

Mr. George S. Swarth: That's in admitting a new State, yes.

I don't think that that -- the problems here were not the problems of admitting a new State, they were simply the problem of getting the Senators and Congressman back.

The State was already here, they are not concern of -- of any other questions and whether they had to again establish an adequate government.

Justice John M. Harlan: Have you read President Johnson's veto?

Mr. George S. Swarth: No.

I am afraid --

Justice John M. Harlan: One of his ground cause that they have declined to accept the constitution of States to show they were wholly loyal and republican (Inaudible).

That was one of his grounds in veto and they overruled it.

Mr. George S. Swarth: Well, I don't feel that that shows that Congress was concerned with any other questions beyond that.

Justice Hugo L. Black: (Inaudible)

Mr. George S. Swarth: That was simply --

Justice Hugo L. Black: (Inaudible) power that you can have that was similar --

Mr. George S. Swarth: That wasn't -- disagreements between them and him as to whether the constitution submitted were loyal and republican.

Justice Hugo L. Black: (Inaudible)

Mr. George S. Swarth: Well, I think the question here is what Congress actually did of what it could have done or invoke the (Inaudible)

Justice Hugo L. Black: Invoke (Inaudible)

Mr. George S. Swarth: Yes sir.

Justice Hugo L. Black: (Inaudible) that this is a very important case and if there is anything particular that any of you wish to call our attention to in a short brief or anything it would be all right on either sides.

Unknown Speaker: We will file a (Inaudible).

Justice Hugo L. Black: What is that?

Unknown Speaker: We will file a (Inaudible).