House Joint Resolution 176 and Senate Joint Resolutions 83 and 92 of the Seventysixth Congress are similar to Senate Joint Resolution 208 of the Seventy-fifth Congress as it was reported to the House of Representatives.

In view of all the circumstances surrounding legislation of this type, the Navy Department does not favor at this time legislation of the type of Senate Joint Resolution 24, but, instead, recommends enactment of legislation of the types House Joint Resolution 176 and Senate Joint Resolution of 83 and 92.

Sincerely yours,

WILLIAM D. LEAHY, Acting.

The CHAIRMAN. All right, gentlemen. It is now 5 minutes of 5. Senator JOHNSON of California. Are these all of the proponents? Senator NYE. I do not know. I had understood there would be others.

The CHAIRMAN. Are there any others who wish to be heard as proponents or supporters of this legislation?

Senator Johnson, you are interested in following this. What is your situation as to time?

Senator JOHNSON of California. I will call the witnesses who are in a position to be heard just as rapidly as I can. I cannot tell you how long it will take. I have got to conclude my attendance tomorrow, because I must be in the Foreign Relations Committee on Wednesday, on some very important matters. So, I will go as rapidly as I can. The trouble is that we do not know whether we will be given the afternoon again, as we have had it today. I do not see anything else for us to do but to adjourn until tomorrow, and then we can take it up again.

The CHAIRMAN. If that is agreeable and I am sorry the other members of the committee are not here to discuss it-we will recess until 10:30 tomorrow morning.

(At 5 p. m. an adjournment was taken until Tuesday, March 28, 1939, at 10:30 a. m.)

TITLE TO SUBMERGED OIL LANDS

TUESDAY, MARCH 28, 1939

UNITED STATES SENATE,

COMMITTEE ON PUBLIC LANDS AND SURVEYS,

Washington, D. C. The committee met at 10:30 a. m., pursuant to adjournment on yesterday, in room 224, Senate Office Building, Senator Gerald P. Nye presiding.

Present: Senators Nye (presiding), Holman, and Gurney.

Present also: Senators Sheppard, Downey, and Johnson of California.

Senator NYE (presiding). The committee will come to order. I will preside until the chairman arrives, and I might state that he is temporarily detained with important work on another committee, as are many other members of this committee.

Senator Johnson, whom will you have the committee hear first? Senator JOHNSON of California. Hon. Gerald C. Mann, attorney general of Texas.

Senator NYE (presiding). Mr. Mann will please come forward to the committee table.

STATEMENT OF GERALD C. MANN, ATTORNEY GENERAL OF THE STATE OF TEXAS, AUSTIN, TEX.

Senator NYE (presiding). You may proceed, Mr. Attorney General. Mr. MANN. My name is Gerald C. Mann.

Senator NYE (presiding). And you are attorney general of the State of Texas?

Mr. MANN. Yes, sir.

Senator NYE (presiding). You may proceed with your statement. Mr. MANN. Mr. Chairman and gentlemen of the committee: There are a number of people here representing the State of Texas, among them being Gen. Claude Burkhead, representing the Governor of Texas, the president of the State Teachers' Association; Mr. Robert A. Stuart, attorney for that association; Mr. Bascom Giles, State land commissioner; Mr. Homer DeWolf, a member of the State board of education and representing that board; and Mr. Fairchild, assistant attorney general of the State of Texas.

We are all here in opposition to this, what we believe to be, an iniquitous piece of legislation. We know that we cannot all be heard, and I do not wish to take up the time of the committee by my remarks because I do not feel I could be of sufficient help to the committee, and Mr. Fairchild will represent the attorney general's department of the State of Texas. He has gone into the matter very carefully, and we

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believe that he can present it in a much better manner and will be of more assistance to the committee.

Now I think, with the committee's permission, we will call upon Mr. Fairchild, assistant attorney general of Texas.

Senator NYE (presiding). Very well, we will hear Mr. Fairchil.d Senator JOHNSON of California. I want at this time to express my very great regret that there are only two members of the committee present-well, I now see Senator Holman coming in, which makes three members of this committee present. In a matter of such transcendent importance, at least to the State most directly concerned, we ought to have as many members of the committee present as possible, something approximating a full attendance. I recognize it is not the fault of the gentlemen here. You are to be complimented that you are present.

Senator NYE. May I say that I had only four committee calls this morning, to attend four different committees?

Senator JOHNSON of California. Heavens, I have three.

Senator NYE. And I expect other members of this committee are up against the same sort of situation.

Senator JOHNSON of California. I had calls to Privileges and Elections, Commerce, and this committee, to meet at this same hour. It is rather embarrassing in a matter of this sort, where gentlemen have come from long distances prepared to testify, and to testify in detail, that we should have only three members of the committee present. I thank these three persons for being present. We are fortunate to have them here. We might be relegated to only one, or we might be here testifying with no members of the committee present. Perhaps it is a kindly spirit that actuates you gentlemen to leave other committees in order to be here, and I appreciate it and thank you. But I wanted to call attention to the fact that only three members of the committee are present as we proceed.

Senator NYE (presiding). Mr. Fairchild, you may come forward and give your name, address, and whom you represent.

STATEMENT OF R. W. FAIRCHILD, ASSISTANT ATTORNEY
GENERAL OF TEXAS, AUSTIN, TEX.

Mr. FAIRCHILD. The remarks that I make at this time and testimony I shall give will of necessity I feel be rather lengthy. I hope that I may not presume too much upon the patience of the committee in that respect. However, the matter before the committee is one which cannot be dealt with sufficiently in a few moments. We have been challenged by the proponents of this legislation to go into an exhaustive examination of the authorities, and we are prepared to do that.

At the outset I desire to offer for the record a brief which I have prepared and now submit for the Attorney General of the State of Texas. Senator NYE (presiding). Do you offer this for the record?

Mr. FAIRCHILD. Yes, Mr. Chairman; and I have additional copies available for each member of the committee as he may desire; and if any additional copies are needed we are prepared to furnish them. I wish that this might be incorporated as a part of my remarks.

Senator NYE (presiding). That will be done. The committee reporter will make this brief a part of the record at this point.

(The printed brief is here made a part of the record, as follows:) BRIEF SUBMITTED BY THE ATTORNEY GENERAL OF THE STATE OF TEXAS IN OPPOSITION TO THE ADOPTION OF HOUSE JOINT RESOLUTION 176 AND SENATE JOINT RESOLUTION 24 BEFORE THE COMMITTEES OF THE CONGRESS OF THE UNITED STATES CONSIDERING HOUSE JOINT RESOLUTION 176 AND SENATE JOINT RESOLUTION 24, RELATIVE TO THE ASSERTION BY THE UNITED STATES OF TITLE TO Submerged LANDS CONTAINING OIL DEPOSITS SITUATED BELOW Low-WATER MARK AND WITHIN 3-MILE LIMIT ADJACENT TO THE SHORES OF THE LITTORAL STATES OF THE UNION.

To the Committees of Congress considering House Joint Resolution 176 and Senate Joint Resolution 24:

This brief is submitted in opposition to the adoption by the Congress of House Joint Resolution 176 and Senate Joint Resolution 24.

The contentions of the advocates of the legislation pending before this committee may be succinctly stated as follows:

1. That the States have no title to submerged lands below low-water mark and extending out to the 3-mile limit-that that title is in no one.

2. That within such limits the United States has absolute control for the purposes of:

A. The regulation of interstate and foreign commerce, which includes the regulation of navigation.

B. National defense.

C. To provide and maintain a navy.

D. National sovereignty.

3. That the existence of control for such purposes authorizes the United States to appropriate the title to oil deposits, if any, existing beneath such submerged lands.

We shall attempt to deal with these contentions in their order as given above.

TITLE OF THE STATES TO SUBMERGED LANDS UNDER WATERS FROM LOW-WATER MARK TO 3-MILE LIMIT

The doctrine advanced in support of the legislation sought by the Navy Department, that submerged lands from low-water mark to the 3-mile limit belong to no one, is certainly, in these troublous times, a dangerously novel theory to be suggested by a department of the Government charged with the national defense. Fortunately, however, for the peace of mind of citizens of the United States, the doctrine is completely and demonstrably fallacious. It has long been fully recognized that a State's territory extends into the sea a marine league from its coastline, both by the law of the nations and by the decisions of our own Supreme Court. "All the writers upon public law agree that every nation has exclusive jurisdiction to the distance of a cannon shot, or marine league, over the waters adjacent to its shores. * * * Indeed, such waters are considered as part of the territory of the sovereign * * *," said that great jurist, Story, in The Ann, 1 F. Cas. No. 397, 1 Gall. 62, 63.

"We all know that the rule of law on this subject is 'terræ dominium finitur ubi finitur armorum vis,' and since the introduction of fire-arms, that distance has usually been recognized to be about 3 miles from the shore." Per William Scott, (Lord Stowell) in The Anna, 5 C. Rob. 373, 385c, 165 Reprint 805, Evans Cas. 65. As early as March 5, 1804, Chief Justice Marshall recognized the even then well established rule that dominion and control of a State did not stop at its shoreline, but extended out into the sea for 3 miles, when he said:

"The authority of a nation within its own territory is absolute and conclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory and is a hostile act which it is its duty to repel."

Certainly that expression by Chief Justice Marshall cannot be justified except upon the basis that the territory within the 3-mile limit is a part of the domain of the littoral State and subject to the exclusive proprietary rights existing in that State.

This principle has been given expression by many of the famous writers on international law. Wheaton, in his treatise on the subject, expressed it admirably when he said: "* * * by the generally approved usages of nations, which forms the basis of international law, the maritime territory of every State extends: "First. To the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands belonging to the same state.

"Second. To the distance of one marine league, or as far as a cannon shot will reach from the shore, along all the coasts of the state.

"Third. To the straits and sounds, bounded on both sides of the territory of the same state, so narrow as to be commanded by cannon shot from both shores, and communicating from one sea to another.

"The reasons which forbid the assertion of an exclusive proprietary right to the sea in general will be found inapplicable to the particular portions of the element included in the above designations." (Wheaton, International Law, 4th Eng. ed., by J. B. Atlay, s. 187, at p. 292.)

Similar expressions are found in Oppenheim, International Law (3d ed.), sec.tion 185; Hall, International Law (7th ed.), page 157; Vattel's Law of Nations; Wilson, International Law, pages 91 and 92.

Mr. Hurst, in his article entitled "Whose Is the Bed of the Sea?" (British Year Book of International Law, years of 1923-24, fourth issue) states that the land underlying the marginal sea is the property of the littoral state, as are also the islands arising in that belt. He continues:

"As it is admitted in these cases that the rights claimed must have been derived from the crown in the bed of the sea, it follows that the rights of the Crown in the bed of the sea must have been fixed at least as early as the thirteenth century." And the Supreme Court of the United States in Manchester v. Massachusetts (139 U. S. 240) stated:

"We think it must be regarded as established that, between nations, the minimum limit of the territorial jurisdiction over tidewaters is a marine league from its coast." (It is apparent from this quotation that the Court was not there using the term "tidewaters" in the restricted meaning of lands alternately covered and uncovered by the tide.)

The law upon this subject is so well established that we are compelled to the conclusion that the theory that ownership, in the proprietary sense, of submerged lands below low-water mark to the 3-mile limit is vested in no one is not seriously urged by the proponents of the measure under consideration-especially in view of the international implications of such an admission. We are then confronted with the alternate contention that title to these submerged lands is an incident of sovereignty, that sovereignty exists only in the United States, not in the individual States, and that, therefore, title to such lands is in the United States. (It must be admitted, in justice to the proponents, that this contention was made rather reluctantly and without, apparently, a great deal of confidence for the advocates of this measure recognized, of course, that if this position were tenable, there would be no necessity for the passage of the resolution as a condition precedent to the assertion of that title by the United States.)

This theory, likewise, is not tenable. The argument fails to take into consideration the essential nature of the compact between the States and the theory of government inaugurated under the Constitution. It is too well settled to require discussion that, under our system of government, it is only "external sovereignty" which is conferred upon the Federal Government without limitation, "internal" or "territorial sovereignty" being reserved to the States. Article X of the Bill of Rights expressly provides:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

As an incident of this territorial sovereignty reserved to the States, it is the established doctrine long since settled by many decisions of our Supreme Court, that the title to lands underlying navigable waters within the territorial limits of the State belongs to that State in its sovereign capacity and may be used or disposed of as it may elect, subject, of course, to the proper exercise of the servitude or easement in such navigable waters granted to the United States as an incident of the right to regulate interstate and foreign commerce (Martin v. Waddell, 16 Pet. 367; Pollard v. Hagan, 3 How. 212; Weber v. State Harbour Com'rs. 18 Wall. 57; Smith v. Maryland, 18 How. 71; McCready v. Virginia, 94 U. S. 391; Shively v. Bowlby, 152 U. Š. 1; Barney v. Keokuk, 94 U. S. 324; Hardin v. Jordan, 140 U. S. 371; Illinois C. R. Co. v. Illinois, 146 U. S. 387; St. Anthony Falls Water Power Co. v. St. Paul Water Com'rs., 168 U. S. 349; Philadelphia Co. v. Stimson, 223 U. S. 605; U. S. v. Holt St. Bk., 270 U. S. 49; Scott v. Latig, 227 U. S. 56; Seattle v. Oregon & W. R. Co., 255 U. S. 56; Brewer-Elliott Oil & Gas Co. v. U. S., 260 U. S. 77; The Genesee Chief v. Fitzhugh, 12 How. 443; McGilvra v. Ross, 215 U. S. 70; Borax Consolidated v. Los Angeles, 296 U. S. 10; Manchester v. Massachusetts, 139 U. S. 240; Louisiana v. Mississippi, 202 U. S. 1; Mobile Transportation Co. v. Mobile, 187 U. S. 479; U. S. v. Ütah, 283 U. S. 64). In Martin v. Waddell, cited supra, it was said:

66* * * when the revolution took place the people of each State became themselves sovereign, and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject