J. Lee 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 --
Felix Frankfurter: On account of the convention?
J. Lee 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 --
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) --
J. Lee Rankin: That's my recollection at the present, what it was, yes, substantially.
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?
J. Lee Rankin: That's right. The Government also contends that --
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?
J. Lee 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.
Hugo L. Black: How would then (Voice Overlap) the boundary be adjusted as were we adjust it?
J. Lee 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.
Hugo L. Black: How much were these boundaries diminished?
J. Lee 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.
Hugo L. Black: What happened during -- at that time?
J. Lee Rankin: It went to New -- it was established as a part of New Mexico. There is a case --
Hugo L. Black: At that time?
J. Lee 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 --
Hugo L. Black: So that the Government instead of this other man on the basis of his direct superior in Mexico --
J. Lee Rankin: I don't believe, Mr. Justice Black. It was --
Hugo L. Black: You stated that.
J. Lee 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.
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.
J. Lee Rankin: It was placed within territories of other States. New Mexico --
Hugo L. Black: What authority from --
J. Lee Rankin: Under --
Hugo L. Black: Where was the title derived from for the United States to do this?
J. Lee 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.”
Hugo L. Black: Well that's what I thought you've said.
J. Lee 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.
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.
J. Lee Rankin: That's right.
Hugo L. Black: No more, and that under that, could be no more than three miles under the sea.
J. Lee Rankin: Yes.
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.
J. Lee Rankin: Mr. Justice Black, I --
Hugo L. Black: By Government (Voice Overlap) --
J. Lee 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.
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?
J. Lee 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.
Hugo L. Black: And your argument is drawn at the same line, but the argument is made on the national policy, three miles.
J. Lee Rankin: Yes, sir.
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.
J. Lee Rankin: That's right.
Hugo L. Black: But wasn't before.
J. Lee Rankin: I don't want to say that I agree that it wasn't before, Mr. 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.
J. Lee 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.
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?
J. Lee Rankin: Oh, yes. They attached that to the hearings.
Hugo L. Black: That's right, but those opinions in (Voice Overlap) --
J. Lee Rankin: That's right.
Hugo L. Black: Therefore you, just have been said it was a general policy against setting it more than three miles --
J. Lee Rankin: Yes, sir.
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.
J. Lee 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 --
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 --
J. Lee 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.”
Hugo L. Black: They went -- they went on the basis as Congress acted on the basis but (Inaudible) when they said they would (Inaudible)
J. Lee Rankin: Well, they -- they didn't. They said very explicitly that this was not to give them anything.
Hugo L. Black: Right.
J. Lee Rankin: This was to give them a chance to prove it.
Hugo L. Black: Give them a chance to prove what they -- what they had historically claimed.
J. Lee 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.
Hugo L. Black: The evidence is met by that is the one who had this boundary whatever it was.
J. Lee 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.
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 --
J. Lee 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.”
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.
J. Lee 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.
Hugo L. Black: (Inaudible)
J. Lee 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.
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.
J. Lee Rankin: Yes.
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.
J. Lee Rankin: Yes, but --
Hugo L. Black: Of course, for the long -- but after they had on their boundaries.
J. Lee 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 --
Hugo L. Black: Long standing claim --
J. Lee 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 --
Hugo L. Black: By asking the Senator he might have evidence.
J. Lee Rankin: [Laughs]
Hugo L. Black: But not everything.
J. Lee 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.
Hugo L. Black: Did you indicate they could?
J. Lee 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 --
Hugo L. Black: Exactly put this in Alabama.
J. Lee 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.
Potter Stewart: When you say that both have power, do you mean that either one independently has power or that it requires both?
J. Lee Rankin: No, independently.
Potter Stewart: That each has power.
J. Lee Rankin: Each has power is what I meant, Mr. Justice.
Felix Frankfurter: But do you want to explain?
J. Lee 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.
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 --
J. Lee Rankin: I meant --
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.
J. Lee Rankin: Mr. Justice Frankfurter, I don't think so. In this regard I think that they -- if they have said --
Felix Frankfurter: I'm not -- I don't think you confide that statute said they shall have it.
J. Lee 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.”
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 --
J. Lee 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.
Felix Frankfurter: And -- and follow that argument --
J. Lee Rankin: Yes.
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.
J. Lee Rankin: Well, I don't --
Felix Frankfurter: But if a chance to deliver to the (Inaudible)
J. Lee 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 --
Felix Frankfurter: That's really the milk and the coconut is that?
J. Lee 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.
Felix Frankfurter: What the Supreme Court voiced, just to bail them out.
J. Lee 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.
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?
J. Lee 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.
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?
J. Lee 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.
Hugo L. Black: Did Congress -- they can prove that?
J. Lee 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.
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?
J. Lee 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.
Potter Stewart: That is the admission statutes, for example.
J. Lee 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) --
Potter Stewart: Well -- well, you don't suggest there any other materials except those which Texas has offered us do you?
J. Lee Rankin: Well and what we've -- offered it to rebuttal.
Potter Stewart: Well, basically the materials are the same. The rebuttal merely go to explanations of the basic materials, don't-- do they not?
J. Lee 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.
Hugo L. Black: If this all, you're being (Inaudible)
J. Lee Rankin: Yes, it seems to be that way. But I think that we have developed the whole story here. And that people are --
Potter Stewart: Well, that's what I'm getting to all the materials are here, are they not?
J. Lee Rankin: Yes.
Potter Stewart: And you put an interpretation upon them which is that they do not establish what Texas says they established.
J. Lee 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 --
Hugo L. Black: Is that true about granting to the States?
J. Lee Rankin: Yes.
Potter Stewart: Was that that Union Pacific was a grant --
J. Lee Rankin: No, it wasn't a grant of State.
Potter Stewart: We don't -- we don't have any, do we?
J. Lee 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 --
Potter Stewart: Yes, but were -- were these issues --
J. Lee Rankin: I wouldn't know. I will check it out.
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.
J. Lee Rankin: Well -- no, I -- I think they were trying to --
Hugo L. Black: (Voice Overlap) do you think the proponent including the President of the United States were heightened to the boundary?
J. Lee 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.
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?
J. Lee 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 --
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.
J. Lee Rankin: Well, if they would -- there are no questions about -- that there was a statute.
Potter Stewart: There's no question raised as to whether they were claiming, was there?
J. Lee Rankin: The question about whether it was a legal claim --
Potter Stewart: It's with something else, yes.
J. Lee 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.
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?
J. Lee Rankin: Yes, sir.
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.
J. Lee Rankin: As the position of the Government.
Potter Stewart: And that's all there is to the Government's brief. The incidence go I mean --
J. Lee Rankin: Well I think there -- there's coloration (Voice Overlap) --
Potter Stewart: Well, there's a lot of coloration, but I mean --
J. Lee Rankin: Well that's the substance.
Potter Stewart: -- that's the essence of it, isn't it?
J. Lee Rankin: That's right.
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 --
J. Lee Rankin: Yes, Mr. Justice, but I thought that was inherent in --
Potter Stewart: Well, perhaps it was.
J. Lee Rankin: -- in the questions --
Potter Stewart: (Voice Overlap) --
J. Lee Rankin: Because I -- I mean it to be our -- part of our case, in a way. Now, I do --
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?
J. Lee 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.
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)
J. Lee Rankin: As -- you mean, Mr. Justice --
Hugo L. Black: That --
J. Lee Rankin: -- the present Congressional policy?
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.
J. Lee Rankin: Well, it seems to me that --
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.
J. Lee Rankin: Well often times we do. [Laughs]
Hugo L. Black: No, I mean to decide that there is effect --
J. Lee Rankin: Oh, no. No, but [Laughs] --
Hugo L. Black: What the statute -- you think what's wrong about it, but there's nothing at all, you either pass on --
J. Lee 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.
Hugo L. Black: What do Congress (Inaudible)
J. Lee 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 --
Hugo L. Black: (Inaudible) 100 to 150 years ago, in Mississippi lawyer.
J. Lee Rankin: Well, that's what they said. [Laughs]
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.
J. Lee Rankin: Yes, sir.
Felix Frankfurter: (Inaudible)
J. Lee Rankin: Yes, Mr. 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)
J. Lee 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.
Felix Frankfurter: That's right. That's what I'm suggesting.
J. Lee 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 --
Felix Frankfurter: But my point is that there's a special interest that specializes in --
J. Lee 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.
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.
Hugo L. Black: Mr. Sachse, do you have a separate brief?
Victor A. Sachse: Yes, sir. We have one, sir.
Hugo L. Black: Except for Louisiana (Voice Overlap) --
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.
Hugo L. Black: So that's just in --
Victor A. Sachse: Both in white covers.
Hugo L. Black: Louisiana has joint reply briefs and statements filed in --
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.
Hugo L. Black: Those two briefs you have.
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.
Hugo L. Black: Is that the crucial point of the (Inaudible)
Victor A. Sachse: This is the beginning of it.
Hugo L. Black: (Voice Overlap) --
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.
Hugo L. Black: But it was your question as we had in (Inaudible)
Victor A. Sachse: No, sir.
Hugo L. Black: Louisiana is claiming three leagues from coast or three leagues from the (Inaudible) Island, which is included in the (Voice Overlap) --
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 --
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?
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.
Potter Stewart: Now, well, in other words, the coast then consists of these very islands, does it not?
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.
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?
Victor A. Sachse: No, sir.
Potter Stewart: Roughly?
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.
Potter Stewart: Well take for example islands like the Chandeleur Islands. They're pretty well up the actual mainland, are they not?
Victor A. Sachse: They are -- if -- if you think of the mainland as -- as the land before you get to any water at all --
Potter Stewart: (Voice Overlap) as you get north without your getting feet wet.
Victor A. Sachse: Yes. They are far out from the mainland. They are within our boundary and the Court held so --
Potter Stewart: Yes.
Victor A. Sachse: -- in Louisiana against (Voice Overlap) --
Potter Stewart: There's certainly there's no question but that their part of the State of Louisiana, those islands.
Victor A. Sachse: That is right.
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?
Victor A. Sachse: Not at that point, because this Court drew a line which separated our coast --
Potter Stewart: From Mississippi.
Victor A. Sachse: -- from Mississippi. And (Voice Overlap) --
Potter Stewart: But aside from that -- aside from that problem, does your point --
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.
Potter Stewart: So --
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.
Potter Stewart: I'm sure that's correct.
Victor A. Sachse: What is the baseline?
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?
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.
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?
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?
Charles E. Whittaker: (Inaudible) do I understand, consistently used the description you have just given?
Victor A. Sachse: That is right, Your Honor.
Charles E. Whittaker: Meaning, to the Gulf of Mexico, thence, along the Gulf, including all islands within three leagues (Voice Overlap) --
Victor A. Sachse: Not exactly that. The exact language is, thence, bounded by the said Gulf --
Charles E. Whittaker: Yes.
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.
Hugo L. Black: What State is that?
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.
Charles E. Whittaker: (Inaudible)
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.
Hugo L. Black: Where is the United States versus Texas?
Victor A. Sachse: 162 U.S. 1.
Hugo L. Black: 162?
Victor A. Sachse: Yes, sir.
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.
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.
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?
Victor A. Sachse: Of the coast.
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?
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.
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.
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.
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)
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.
Potter Stewart: And that's something different in shorelines, doesn't it?
Victor A. Sachse: Yes, but the measurement that the Government made was on the basis of the coast, 397 miles.
Potter Stewart: Even though they call it shore?
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.
Charles E. Whittaker: What would that do in this case?
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.
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) --
Victor A. Sachse: So defined by --
Potter Stewart: So defined by agreement.
Victor A. Sachse: -- statutes of the United States.
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?
Victor A. Sachse: That is right because that is what the Submerged Lands Act says and that is what our Act of Admission says.
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”?
Victor A. Sachse: They are all inland.
Potter Stewart: They are all in --
Victor A. Sachse: In --
Potter Stewart: -- north --
Victor A. Sachse: Inland --
Potter Stewart: -- toward mainland.
Victor A. Sachse: -- from the three-league line. And most of --
Potter Stewart: Now, from the coastline, I'm asking now, from the coastline as you've defined the word “coast” --
Victor A. Sachse: Most of --
Potter Stewart: -- are there any islands seawardly within three leagues?
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.
Potter Stewart: They were what? Disappeared?
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.
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?
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.
Hugo L. Black: Solicitor General.
J. Lee 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 --
Hugo L. Black: Which map?
J. Lee Rankin: I think it's in your portfolio and it's --
Hugo L. Black: I looked at the map in the 202, is that the same one, 202 U.S.?
J. Lee Rankin: Maybe Mr. Gremillion could help me.
Hugo L. Black: Yes. I know, I (Inaudible)
J. Lee Rankin: And Mr. Justice Black, Mr. Gremillion tells me it's in the portfolio.
Hugo L. Black: Yes.
J. Lee Rankin: And they are taking as their coastline --
Felix Frankfurter: (Voice Overlap) --
J. Lee Rankin: Which one?
Felix Frankfurter: Number 1. (Inaudible) 1115 and 1116 and -- and joined the (Inaudible)
Mr. Attorney General: (Voice Overlap) --
Felix Frankfurter: -- not one in your --
Mr. Attorney General: I think that's correct, I don't have the portfolio you're talking about.
J. Lee 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.
Speaker: (Inaudible)
J. Lee 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.
Hugo L. Black: Are we called in this case to decide where the coastline is?
J. Lee 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.
William J. Brennan, Jr.: (Inaudible) this is the right time (Inaudible)
J. Lee Rankin: Could you answer Justice Brennan?
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.
William J. Brennan, Jr.: 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.
William J. Brennan, Jr.: Yes. I -- I found it. Thank you.
J. Lee 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.
Felix Frankfurter: Or from any line (Inaudible)
J. Lee Rankin: That's right.
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?
J. Lee 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.