but they pertain to different matters, such as the fishing proposition along Alaska. That was between countries, and not between States of the Union, but that was the asserting of the rights of the United States against other countries. We were trying to protect those rights against Japan and some of the other countries, and there was a place where it was necessary for the Congress of the United States to go out and assert that right.

Mr. SATTERFIELD. With regard to that, do you contend that the States have surrendered any powers, either at the time of the adoption of the Constitution or subsequently which gives the right to this Government to own any land within the borders of the States except that acquired by condemnation and donation?

Mr. STUART. No, sir; there is no land or no title vested in the Government of the United States except as you say, except as to those things for navigation purposes, and for commerce, and commercial purposes. The only right that they have is the innocent use of the waters for the purpose of commerce and navigation.

Mr. MURDOCK. In the West there you find that in my State the Government has title to at least 74 percent of the entire land of the State, and that is by reason of the fact that they were reserved at the time that the State came into the Union.

Mr. STUART. And that is right; and in some of the States they hold it in trust, or in most of the States they hold it in trust for their benefit; but they did own that public land then, and it is a different matter, as you state.

Mr. GWYNNE. I think that in the hearings a year ago, somebody advanced the theory that if the Federal Government should assert claims to this land, and there would be a dispute between the two sovereignties over the land, that it would be a political question, which the Supreme Court could decline to review, and what would be your viewpoint on that?

Mr. STUART. I understand that in some of the matters that they were referring to, in regard to this line of decisions that they refer to, such as along the coast of Alaska, up there, that that was a matter of political question, a matter of policy to be determined by the Congress, and in an instance of that kind the Supreme Court would not have the power of course to override the Congress and would not interfere.

Mr. GWYNNE. That would apply in that case, but do you think that that same argument would apply here?

Mr. STUART. No, sir; I do not, because this is a matter of title. Mr. GWYNNE. This is a matter of property rights and title? Mr. STUART. Yes. This is a matter of patent or title, which has been passed on by that case of Manchester v. Massachusetts, and I think that that is a good case in point, and the Lewis Bluepoint Oyster Cultivating Co. case and any number of cases there, in regard to actual ownership of the oyster beds, and the only place they have interfered with that ownership was when that ownership interfered with the right of the use of that water for navigation, and that is the only instance.

Mr. MURDOCK. It has been my experience that a bill once introduced goes on until it is passed, and now it seems to me that inasmuch as this controversy has developed, particularly with reference

to California, that it might be advantageous not only to California but to Texas and all of the other States, to get the matter finally determined by the courts, and I am just wondering if you people would rather come back up here every year and present these fine arguments that you do, or to appear once in court and get the thing out of the way. That is the thing that is sticking in my mind, if that isn't the most expeditious and quickest way to get this controversy handled, and out of the way, to submit it to the courts and have it over with?

Mr. STUART. That might be true, if you eliminated anything in regard to the assertion of title, but you have an assertion of title, which would lend weight to their contention, that they did own it. and certainly no assertion of title should be entered.

Mr. Hobbs facetiously remarked that he gave us a good trip back up to Washington.

Mr. MICHENER. I suppose that you take out enough oil to pay for the trip?

Mr. STUART. And then some, because we have taken out better than $2,000,000 during the last year, and so that if we can delay that matter, we do not think that any action should be taken by the Congress toward asserting that right.

Mr. HANCOCK. If section 1 were eliminated, you would not object to the resolution.

Mr. STUART. We would object to it, and I do not want to be placed in the attitude that for any reason we think that a suit should be instituted, because we do not think that they have any shadow of a title to the lands in Texas in any way whatsoever. And consequently, we do not like to have a suit instituted or anything done that would attempt to assert anything against our ownership of this property.

Mr. MICHENER. It is suggested by Mr. Murdock, the representative from Utah, that this is a controversial question, and it is only fair to assume that there will come a time, someday and somewhere, when these rights will be litigated, and now it would seem to me that the sooner the better for everybody.

But it also seems perfectly clear from the hearings a year ago, and I think that we will arrive at that conclusion when we get through here, that the legal department of the Federal Government feels that it does not have sufficient color of title to warrant legal action without some declaration of policy on the part of the Congress. Mr. STUART. I feel that in that instance where the Department of Justice does feel that way about it, it is just like an attorney advising his client that it seems to him that he has no lawsuit, and they are saying to you that you have no lawsuit, and in that instance I do not think that you should institute a lawsuit or advise them to pass anything that would cause them to institute a lawsuit in this matter. Mr. MICHENER. I would like to see the thing tried out without any declaration on the part of Congress. We cannot perfect by declaration something we do not already have.

Mr. SATTERFIELD. Do you think that anything would be added to the issue if an assertion was made by the legislative branch of the Government?

Mr. STUART. If an assertion was made about the time that they sighted a Japanese vessel moving off around California, it might be

persuasive on the Supreme Court, and we certainly do not think that any assertion of ownership that might make a political question out of it should be made that might create some doubt in these cases. Mr. SATTERFIELD. It is persuasive, but it plays no particular part in the actual merit of the issues involved?

Mr. STUART. It is persuasive to some of the members of the Supreme Court, or might be such. As was stated here, I think that there are 100 cases, at least, that are decisive of this question of ownership of the submerged lands and the products beneath the soil throughout the United States; and if they followed those decisions and followed the law as it now exists, we do not think that there can possibly be any question as to the final outcome of the litigation.

Mr. MASSINGALE. Let me ask you one more question. Do you think that sovereignty as applied to the Government can either be increased or diminished by any resolution of Congress?

Mr. STUART. No, sir; I do not. I think that this matter, in this instance, is of the States' territory and that it carries with it the revenue and title and ownership to the same extent in this territory that it has in the land, and that is in my brief here from the various writers upon this question.

I think that they have that sovereignty and that right that they can exercise over this submerged territory, or submerged land, and that, as I said, was subject only to its innocent use by other nations of the world.

I thank you very much.

Mr. TOLAN. Is there anyone else from Texas?

Mr. STUART. We have the assistant attorney general here.

STATEMENT OF R. W. FAIRCHILD, ASSISTANT ATTORNEY GENERAL OF THE STATE OF TEXAS

Mr. FAIRCHILD. My name is R. W. Fairchild, assistant to the attorney general of the State of Texas.

Mr. WALTER. Mr. Fairchild, last year the attorney general's department of your State presented oral argument and a brief. Did you read that brief?

Mr. FAIRCHILD. I read the entire record.

Mr. WALTER. Are you adding anything?

Mr. FAIRCHILD. Yes, sir; I am. I would like leave to introduce a copy of my brief for the record and furnish additional copies here for such members of the committee as would like to have it.

(The brief referred to is as follows:)

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

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

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 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 coast line, 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

* *

Anna (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 firearms, 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 shore line, 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:

66* * * 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 inclosed by headlands belonging to the same State.

Secondly. To the distance of 1 marine league, or as far as a cannon shot will reach from the shore, along all the coasts of the State.

Thirdly. 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. 185); Hall, International Law (7th ed., p. 157); Vattel's Law of Nations; Wilson, International Law (pp. 91 and 92).

Mr. Hurst, in his article entitled "Whose is the Bed of the Sea?" (British Year Book of International Law, years of 1923-1924, 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 Harbor Commissioners, 18 Wall. 57; Smith v. Maryland, 18 How. 71; McCready v. Virginia, 94 U. S. 391; Shively v. Bowlby, 152 U. S. 1; Barney v. Keokuk, 94 U. S. 324; Hardin v. Jordan, 140 U. S. 371; Illinois Central Railroad Co. v. Illinois, 146 U. S. 387; St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 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 & Washington Railroad 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. Utah, 283 U. S. 64).

In Martin v. Waddell, cited supra, it was said:

** 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 only to the rights since surrendered by the Constitution to the General Government."

And in Smith v. Maryland (18 How. 71), the Supreme Court of the United States said:

"Whatever soil below low-water mark is the subject of exclusive propriety and ownership belongs to the State on whose maritime border, and within whose jurisdiction it lies, subject to any lawful grants of that soil by the State