J. Lee 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.
Hugo L. Black: Mr. Hart.
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.
Charles E. Whittaker: I noticed that you used -- had used several times the word, “historical boundaries.”
James P. Hart: Yes, sir.
Charles E. Whittaker: You didn't claim that used in the Act?
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 --
Charles E. Whittaker: Yes.
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.
Charles E. Whittaker: That's the language respective of the granting clause of Section 2.
James P. Hart: Yes, sir.
Charles E. Whittaker: Isn't it?
James P. Hart: That's correct.
Speaker: 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?
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.
Speaker: As a matter of law.
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.
Potter Stewart: (Voice overlap) but what are the boundaries of Texas today in the Gulf of Mexico?
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 --
Speaker: 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 --
James P. Hart: Yes. I -- I think of --
Speaker: 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 --
James P. Hart: Yes.
Speaker: -- inclusive one, but one of them. That's a proper consideration -- legal consideration to take into account.
James P. Hart: Yes, sir. That's correct.
Speaker: 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.
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 --
Speaker: I appreciate that.
James P. Hart: -- considerations of foreign --
Speaker: I appreciate it.
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 --
Speaker: I appreciate it.
James P. Hart: -- as -- as defined in the Act.
Speaker: But your disagreement is -- is to the Government's legal proposition rather than -- rather than as to the relevance of it (Inaudible)
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.
Felix Frankfurter: May I ask you this question, Mr. Hart.
James P. Hart: Yes.
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?
James P. Hart: Yes, sir.
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?
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 --
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)
James P. Hart: I --
Felix Frankfurter: When did Hawaii become a State? When was it admitted? When Congress passed the -- measured?
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 --
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)
James P. Hart: I'm sorry. I can't answer your question, Mr. Justice. I have assumed --
Felix Frankfurter: Because if the Government --
James P. Hart: -- that it is that passage of the Act of Congress that constitutes the admission.
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?
James P. Hart: Yes, sir. I understand that to be ascertained.
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.
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.
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)
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.
Felix Frankfurter: In the State that they protect?
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.
Speaker: 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.
James P. Hart: Yes, sir.
Speaker: Is that a fair statement?
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 --
William J. Brennan, Jr.: (Voice Overlap) --
James P. Hart: Sir?
William J. Brennan, Jr.: Where do say that's from?
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).
William J. Brennan, Jr.: Yes.
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.
Hugo L. Black: Is that on page (Inaudible)
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.
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.
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.
Felix Frankfurter: Those three Senators you named are those who spoke with authority of being in charge, isn't it?
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.
Speaker: Can I put this question to you?
James P. Hart: Yes.
Speaker: 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?
Felix Frankfurter: Well, that -- that wouldn't create a different situation from the situation we held, if the Court please.
Speaker: Oh, I appreciate that.
James P. Hart: Yes.
Speaker: But, what --
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.
Speaker: Notwithstanding the expressed cutting down of those boundaries by the Act of Admission?
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 --
Speaker: No.
James P. Hart: -- because there has not been any cutting down --
Speaker: No, I realized --
James P. Hart: -- by the Acts of Admission.
Felix Frankfurter: Let me make --
Speaker: 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.
James P. Hart: Yes, sir. I think so.
Speaker: (Inaudible)
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.
Speaker: Yes.
James P. Hart: That's correct. Yes, sir.
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.
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 --
Felix Frankfurter: You go back to your process that this is (Voice Overlap) --
James P. Hart: Yes, yes.
Felix Frankfurter: But, as I understood, Justice Harlan's hypothesis, it was an explicit reduction in the -- in the act of accession or admission.
James P. Hart: Yes, sir.
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.
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 --
Felix Frankfurter: Give something that Texas never had or some other States never had.
James P. Hart: Yes, sir. It -- it is given to Texas --
Felix Frankfurter: You have to rely on -- you have to rely on the statute --
James P. Hart: It's the --
Felix Frankfurter: -- for being that kind of (Inaudible)
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.
Charles E. Whittaker: But the Congress if it's more (Inaudible)
James P. Hart: Exactly.
Felix Frankfurter: Yes. But the measure -- but what our problem is -- I probably think that --
James P. Hart: Yes.
Felix Frankfurter: -- it overwrites that. But the measure of what they gratuitously gave related to some boundaries limit?
James P. Hart: Yes. Now --
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) --
James P. Hart: Yes.
Felix Frankfurter: -- into the case.
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 --
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)
James P. Hart: Is limited of what, sir?
Charles E. Whittaker: Is not limited to (Inaudible)
James P. Hart: No. I --
Charles E. Whittaker: And that is --
James P. Hart: No, not -- no, sir, certainly not. But the -- what I --
Speaker: This sort of (Inaudible) regard isn't it?
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
Hugo L. Black: (Voice Overlap) whereas, the primary (Voice Overlap) reliance --
James P. Hart: Sir?
Hugo L. Black: Other States may go somewhere if it likes.
James P. Hart: Yes, sir.
Charles E. Whittaker: And --
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 --
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?
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 --
Speaker: It does tend to show however that Congress was conscious of the possible bearing of international law on this problem, does it?
James P. Hart: Bearing of international law upon what, sir?
Speaker: Upon this problem, upon what they were doing. It does show that much.
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 --
Speaker: Exactly that --
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.
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)
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.
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 --
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.
Speaker: Do you -- Mr. Hart, do you agree or disagree with the Government's view that boundaries necessarily means the State's maritime boundaries?
James P. Hart: We disagree with that, if the Court please.
Speaker: Would you --
James P. Hart: The --
Speaker: -- elaborate that (Voice Overlap) --
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 --
Charles E. Whittaker: (Inaudible)
James P. Hart: I beg your pardon?
Charles E. Whittaker: Did you say the record with reference (Inaudible)
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 --
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)
James P. Hart: I think that is their position but we -- we --
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.
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.
Felix Frankfurter: Well, you could've voted for those two amendments?
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.
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.
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
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.
Felix Frankfurter: (Inaudible)
J. Chrys Dougherty: And that -- that is -- that's policy.
Felix Frankfurter: You say that a -- that we recognize exactly that has a claim of (Inaudible)
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 --
Felix Frankfurter: Give me now reason to speak up.
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.
Felix Frankfurter: (Voice overlap) when does -- when did you begin to speak up?(Voice Overlap) --
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.
Felix Frankfurter: And as -- as sweeping the resistance since then?
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.
Felix Frankfurter: Because that's merely --
J. Chrys Dougherty: But --
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 --
J. Chrys Dougherty: That is --
Felix Frankfurter: -- correct or desirable or just call it what you will, international policy.
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 --
Charles E. Whittaker: I don't understand --
J. Chrys Dougherty: All right.
Charles E. Whittaker: -- to make this certain --
J. Chrys Dougherty: Sir.
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?
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.
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?
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.
Charles E. Whittaker: On whose gulf?
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?
Felix Frankfurter: Have you contended to establish that he was fired
J. Chrys Dougherty: Yes, sir.
Felix Frankfurter: Do you mean there's no written document?
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.
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.
Hugo L. Black: (Inaudible)
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) --
Felix Frankfurter: (Inaudible)
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.
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) --
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.
Felix Frankfurter: Do I make -- may I --
Jack P. F. Gremillion: Does that answer your question?
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.
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.
Felix Frankfurter: Congress can do it --
Jack P. F. Gremillion: That -- and that --
Felix Frankfurter: -- as between and without any legislative congressional determination, this Court has decided --
Jack P. F. Gremillion: That's right.
Felix Frankfurter: -- be it in imperium of the United States.
Jack P. F. Gremillion: That's right.
Felix Frankfurter: (Inaudible)
Jack P. F. Gremillion: That's right.
Felix Frankfurter: He's wanted to cut this down, I didn't make it, is that right?
Jack P. F. Gremillion: Anderson originally -- Anderson originally requested that it be limited to three miles everywhere. Then, he recognized in Congress --
Felix Frankfurter: The Gulf (Voice Overlap) --
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.
Charles E. Whittaker: Mr. Gremillion -- Mr. Gremillion, may I ask you please?
Jack P. F. Gremillion: Yes.
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?
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 --
Hugo L. Black: May I ask you --
Jack P. F. Gremillion: -- 4:30 --
Hugo L. Black: May I ask you --
Jack P. F. Gremillion: -- and I've only covered one portion of my argument.[Laughter]
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 --
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?
Hugo L. Black: (Inaudible)
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.